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THE UNIVERSITY OF GEORGIA
LAW LIBRARY
The University of Georgia
UNIVERSITY OF GEORGIA LAW LIBRARY
3 8425 00479 9644
Alexander Campbell King Law Library
L.
Digitized by the Internet Archive
in 2011 with funding from
LYRASIS Members and Sloan Foundation
http://www.archive.org/details/georgiacode1926a00unde
!* '
THE GEORGIA CODE
1926
ALL THE LAWS TO AND INCLUDING
THE EXTRA SESSION OF 1926
COMPLETE
J
ANNOTATIONS
UNDER THE EDITORIAL SUPERVISION OF
THOMAS JOHNSON MICHIE
ASSISTED BY
A. HEWSON MICHIE and BIERNE STEDMAN
WITH
THE EDITORIA
L. T. GILLEN,
STAFF OF THE PUBLISHERS
AND
R. H. ARMSTRONG, AND
WILLIAM A. INGRAM
OF
THE GEORGIA BAR
THE MICHIE COMPANY, LAW PUBLISHERS IDDAOV
CHARLOTTESVILLE^ VA. LMW LIBnHn
UNIVERSITY OF GEORGIA
1926
of c 0 3 aw,
Copyright 1926
BY
The Michie Company
mtc e a - 31
PREFACE
In compiling and annotating this volume the publishers have spared neither
labor nor expense. Modern one volume codes are becoming more and more
popular, and it is believed that a work of this nature will be of inestimable bene-
fit to the legal profession in Georgia.
The classification of the Acts corresponds to the classification of the Code
of 1910, with which the bar is already thoroughly familiar. New laws are in-
serted in their logical places with figures in parentheses following the section
numbers of the Code of 1910. The annotations are full and comprehensive.
They incorporate all the direct constructions from the reports to and including
volume 160 of the Georgia Reports and volume 33 of the Georgia Appeals Re-
ports.
The publishers wish to acknowledge their indebtedness to the gentlemen,
composing the editorial stafT, wh -se unflagging energy and unfailing co-opera-
tion for the past two years has made the consummation of this monumental
work possible.
Contents of the Code
Preliminary Provisions
Sec.
1
THE POLITICAL CODE.
TITLE 1.
Divisions; of the Boundary, Sovereignty, and
Jurisdiction of the State.
Ch. 1. The boundary of the State 16
Ch. 2. The sovereignty and jurisdiction of the
State 21
Ch. 3. Jurisdiction ceded to the United States
over certain Land 25
Ch. 4. Counties 31
Ch. 5. Congressional districts 33
Ch.
Ch.
Art
Art.
Art
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Ch.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Ch.
Art
Art
Art
TITLE 2.
Elections by the People.
1. Qualification of voters 34
2. Registration of voters 36
1. Voters' book, when to be opened, and
when to be closed, when taxes shall be
paid 36
2. Method of registering on voters' book 40
2a. Permanent registration 47(1)
3. Lists from voters' book and tax De-
faulters furnished registrars 48
4. County registrars, appointment and
oath 52
5. List of registered voters who entitled
to vote . 55
5a. Discharged soldiers' and sailors'
list 61(1)
6. Hearing before registrars 62
7. List of voters furnished election —
managers 67
8. Ballots, by whom and where cast 68
9. Lists returned by managers 72
10. Payment of tax-collectors, registrars,
etc 73
11. Inspections of lists and books 74
3. Elections for members of the General
Assembly 76
1. Managers of elections; qualifications
and oath 76
2. Election precincts 79
3. Elections; when and how held 80
4. Penalty for managers' default 83
5. Examination of election papers by
grand jury 85
6. Election Blanks 86
7. Voters' freedom from arrest 89
8. Elections to fill vacancies 90
9. Campaign expenses 92
4. Elections for Governor, members of
Congress, electors for President and Vice
President, Treasurer, Comptroller-General,
Attorney-General, and Commissioner of
Agriculture 94
1. Provisions applicable to all 94
2. For Governor 95
3. For members of Congress, House and
Senate 97
Sec.
Art. 4. For Presidential Electors 103
Ch. 5. For ordinary and county officers 110
Ch. 6. For justices of the peace and con-
stables 115
Ch. 6A. Election returns for Secretary of
State, Treasurer and Comptroller-Gen-
eral, Officers commissioned by Gov-
ernor 120(1)
Ch. 6B. Voting by absentees 120(4)
Ch. 7. Contested elections 121
Art. 1. In cases where Governor Commis-
sions 121
Art. 2. Election of member of General As-
sembly 124
Art. 3. Other contested elections 125
Art. 4. Election not set aside for formal de-
fects when 126
Ch. 8. Primary elections 127
Ch. 9. General regulations governing elec-
tions 138(8)
Ch. 10. Political mass meetings regulated 138
TITLE 3.
Ch. 1. The governor of 'the executive depart-
ment 139
Art. 1. Inauguration and oath 139
Art. 2. Commander-in-chief, duty in case of
insurrection 141
Art. 3. Appointment of commissioner of
deeds 143
Art. 4. Commissions what officers 144
Art. 5. Duty as to property of State 145
Art. 6. Property purchased, when 150
Art. 7. Appointments and vacancies 155
Art. 8. Suspension of treasurer or comp-
troller 160
Art. 9. Collections of taxes, when suspended
162
Art. 10. Warrants on treasury 163
Art. 11. Records to be kept in executive of-
fice '. 164
Art. 12. Executive seal 165
Art. 13. The Executive office and residence .of
the governor 166
Art. 14. Governor's messenger, and State-
house Guard 167
Art. 15. Of the State Librarian, and distribu-
tion of laws 172
Sec. 1. Librarian and his duties. Salaries of as-
sistants 172
Sec. 2. Distribution of books 178
Sec. 3. Catalogue; official annual reports filed
with librarian 179
Sec. 4. Printing and distribution of Georgia
reports 182
Sec. 5. Supervision and Removal of Librarian
by Governor 188
Sec. 6. Legislative Reference Department
189(1)
Art. 16. Printing and Distribution of Laws
and Other Documents 190
Sec. 1. Distribution of Laws and Journals to
County Officer 190
VI
TABLE OF CONTENTS
Sec.
Sec. 2. librarian as Exchange Officer 195
iSec. 3. Reserved Copies 199
Sec. 4. Acts of Congress, How Distributed .... 200
Sec. 5. Books Furnished University of Geor-
gia and Georgia School of Technology
201
Sec. 6. Counties, How Supplied with Geor-
gia Reports 202
Chap. 2. The Secretary of State, Treasurer,
Comptroller-General, and Attorney-Gen-
eral 205
Art. 1. Of the Secretary of State 205
Sec. 1. Election, Bond and Compensation .... 205
Sec. 2. Duties of Secretary of State 210
Sec. 3. Great Seal of the State, and Its
Custody 213
Sec. 4. Duties of Surveyor-General Imposed
on Secretary of State 214
Art. 2. Of the State Treasure 215
Sec. 1. Election and Rights 215
Sec. 2. Approval, Lien, and Record of Tres-
surer's Bond 217
Sec. 3. New Bond Required, When • 221
Sec. 4. Suspension of Treasurer 222
Sec. 5. Execution Against Securities 224
Sec. 6. Resignation or Default of Treasurer
225
Sec. 7. Office, Fees, and Clerk; Assistant
Treasurer 227
Sec. 8. Duties of Treasurer 228
Sec. 9. Bond-Book and Fiscal Year 229
Sec. 10. Bond Commissioner 232
Art. 3. Of the Comptroller-General 235
Sec. 1. Election, Bond, and Right 235
Sec. 2. Duty of Comptroller 238
Sec. 3. Wild Lands 239
Sec. 4. Annual Report of Comptroller to Gov-
ernor 241
Sec. 5. Authority of Comptroller 242
Sec. 6. Records of Bonds, Warrants, and Ap-
propriations 244
Sec. 7. Seal, Copies of Records, and Clerk .... 246
Sec. 8. Settlement with Successor 251
Sec. 9. Report to General Assembly 252
Art. 4. Of the Attorney-General 253
TITLE 4.
General Regulations as to all Officers and
Offices
Chap. 1. Of Eligibility, Qualifications and
Commissions of Officers and Vacation of
Officers , 258
Art. 1. Eligibility and Qualification 258
Art. 2. How Commissioned 262
Are. 3. Vacancies 264
Art. 4. Resignation 266
Art. 5. Year for Official Reports and Fiscal
Year Coincident 268
Chap. 2. Official Oaths' 269
Chap. 3. Official Bonds and Sureties There-
on 278
Art. 1. Execution and approval 278
Art. 2. Sureties on Bonds 281
Art. 3. Power of Attorney 284
Art. 4. Filing Official Bonds 285
Art. ,5. Bonds; How Far, and for what, Bind-
ing 291
Sec.
Art. 6. Bonds to be Recorded 292
Art. 7. Bond of Deputy 294
Art. 8. Satisfaction and Discharge of Bonds .... 296
Art. 9. Informalities do Not Vitiate Bonds .... 298
Art. 10. Measure of Damages on Bonds .... 299
Art. 11 Provisions Applicable to All Official
Bonds 300
Art. 12. Sureties, How Relieved 301
Chap. 4. Powers of Public Officers Limited .... 303
Chap. 4a. Contracts with State Institutions
303
Chap. 5. Of Delivery of Books and Property
to Successors 304
Chap. 6. Inventory Annually to be Made .... 310
'Chap. 7. Salaries and Fees of Officers 316
Art. 1. Executive Officers 316
Art. 2. Officers Appointed by Governor .... 319
Art. 3. Officers of the Georgia State Sani-
tarium 320
Art. 4. Legislative Officers 321
Art. 5. Officers Connected with the Judicial
Department 322
TITLE 5.
Legislative Department
Chap. 1. Of the General Assembly 331
Art. 1. Annual Session and Organization .... 331
Art. 2. Doorkeeper and Messenger 338
Art. 3. Subletting Officers Forbidden; Other
Officers 339
Art. 4. Appropriation Bills 344
Art. 5. Finance Committee's Report 346
Art. 6. Suspension of Comptroller or Treas-
urer 347
Art. 7. Unfinished Business, Engrossed Bill,
etc • 348
Art. 8. Pay of Members 351
Art. 9. Resolutions Appropriating Money .... 356
Art. 10. Local Bills and Notice Thereof 357
Chap. 2. Secretary of Senate and Clerk of the
House 358
Chap. 3. Elections by the General As-
sembly , 372
Art. 2. For Other Officers 372
TITLE 6.
County Organization
Chap. 1. Militia Districts 373
Art. 1. Defined 373
Art. 2. Militia Districts, How Laid Out, Con-
solidated, or Abolished 376
Chap. 2. Incorporation of Counties, County
Contracts, Property, and Claims 383
Art. 1. Counties are Corporate Bodies 383
Art. 2. Suits Against Counties 384
Art. 3. Contracts, How Made by Counties,
Competition in Bidding 386
Art. 4. County Property 395
Art. 5. County Buildings, Care and Inspection
Thereof. Supplies for County Officers .... 399
Art. 6. Claims Against Counties 410
Art. 7. Annual Reports of County Officers .... 413
Art. 8. County Auditors and Expert Account-
ants 416
Art. 9. Bridges Between Counties 419
TABLE OF CONTENTS
VII
see.
Art. 10. Bridges in Which United States and
Other States are Interested, and Bridges
on Navigable Streams 424
Art. 11. Intercounty Improvements 428
Art. 11a. Co-Operation of Counties with
Municipalities for Improvements 43l(l)
Art. 12. System of County Drainage 432
Chap. 3. County and Municipial Bonds and
Debts — Sinking Funds 440
Art. 1. Election on Issue of Bonds or Incurr-
ing New Debt 440
Art. 2. Bonds, How Validated 445
Art. 3. Debts Other Than a Bonded Debt .... 463
Art. 4. Bonded Debts of Municipal Corpora-
tions with 150,000 or More Population
467(1)
Art. 5. Investment of Sinking Funds .... 467(3)
Chap. 4. Change of County Lines 468
Chap. 5. Settling Disputed County Lines and
Denning Certain Lines 472
Chap. 6. Change of County-Sites; Courts,
Where Held; Officers, Where Kept .... 486
Chap. 7. County Revenue 504
Art. 1. From Taxation 504
Sec. 1. Special and Extra Tax 504
Sec. 2. Tax for County Purposes Generally;
How Levied 508
Sec. 3. Purposes for Which County Tax may
Be Assessed 513
Sec. 4. Assessment and Collection of Taxes .... 514
Sec. 4a. Fiscal Year in Certain Counties .... 526
Sec. 5. Proceedings against Defaulting Tax-
Collections and Treasurers 527
Art. 2. From Other Sources Than Taxation
529
Chap. 8. County Poor '. 541
Art. 1. Jurisdiction of Ordinary 541
Art. 2. Relief to Poor Confederate Soldiers .... 547
Art. 3. Commissioner of the Poor and His
Duty 550
Art. 4. Paupers 553
Art. 4a. Contracts for Support of Paupers
562(1)
Art. 5. Home for Indigent Old Women 563
Chap. 9. County Officers 564
Art. 1. County Treasurer 564
Sec. l Election and Oath 564
Sec. 2. Bond of County Treasurer and Its
Lien 571
Sec. 3. Duty of County Treasurer 574
Sec. 4. County Orders 579
Sec. 5. Proceedings Against Defaulting Treas-
urer 585
Sec. 6. Final Settlements, Fees, Expenses, and
Salaries 586
Art. 2. County Surveyor and His Fees 591
Sec. 1. Election, Oath, and Bond 591
Sec. 2. Duties and Fees of County Surveyor .... 598
Art. 3. Coroners 609
Chap. 9a. County Manager Form of Govern-
m e n t 615
Chap. 10. Notaries Public 616
Chap. 11. Commissioners of Roads and Reve-
nues 626
Chap. 11a. Board of Examiners of Stationary
Engineers and Firemen 627U)
Chap. 12. Roads, Bridges, Ferries, Turnpikes,
Causeways, Crossings, Etc 628
Sec.
Art. 1. Public' Roads 628
Sec. 1. Classification of Roads and Districts .... 628
Sec. 2. Public Road Register 636
Sec. 3. Roads; How Laid Out, Altered, or
Discontinued 640
Sec. 4. Work on Public Roads 647
Sec. 5. Apportionment of Roads 662
Sec. 6. Proceedings Against Defaulters .... 667
Sec. 7. Duty of Overseers; Mile-posts; Sign-
boards, Etc 672
Sec. 8. Duty of Railroads as to Roads 677
Sec. 9. Damages, How Assessed 678
Sec. 10. Overseer's Neglect; Proceedings
Against Railroads and Others for Ob-
structions, Etc 690
Art. 2. Alternative Road Law 694
Art. 3. Alternative Four-Days Road Law
(Repealed) 705
Art. 4. Alternative Road Law in Certain
Counties (Repealed) 712
Art. 5. Road Duty and Commutation Tax in
Certain Counties 720
Art. 6. Commissioners of Public Roads 724
Sec. 1. Appointment and Obligation to
Serve 724
Sec. 2. Duty of Road Commissioners 729
Sec. 3. Proceedings against Road Commis-
sioners 731
Sec. 4. Roads, How Assigned; Discharge of
Commissioner 736
Art. 7. Inspectors of Roads and Bridges 739
Art. 8. Bridges, Ferries, Turnpikes, and
Causeways 744
Sec. 1. Classification 744
Sec. 2. Jurisdiction of Ordinary 746
Sec. 3. Contractor's Liability and Bond 748
Sec. 4. Bridges and Ferries between Different
Counties 755
Sec. 5. Private Ferries and Bridges; Tolls,
e tc 758
Sec. 6. Liability for Detention, Defective
Bridge, Excessive Toll, etc 769
Sec. 7. Right of Way; Grants, How Con-
strued 778
Art. 9. Turnpikes and Turnpike Companies .... 782
Art. 10. Right of Way for Persons Engaged
in Mining 795
Art. 11. Tramroads 804
Art. 12. Private Ways 807
Art. 13. State Highway Department. Reor-
ganization 828(1)
Sec. 1. Reorganization, Assent to Federal
Law and Membership of Department
828(1)
Sec. 2. State Highway Board 828(5)
Sec. 3. State Highway Engineer 828(10)
Sec. 4. State-Aid Roads 828(13)
Sec. 5. Bridges .^gj^1!.!?^..... 828(17")
Sec. 6. Powers and Dutiejd!!5yllighwaV De-
partment VQ?" *^0 \ 828(18)
Sec. 7. Construction jfl&J^oads by County
828(31)
Counties
Chap. 13. Organizatjbfip of N§|
£.J> aS- O'l 829
Chap. 13A. Fire Protection : 829
Chap. 13B. Restricted'/^Resfdence Districts
}&»^fr}&J 848(4)
Chap. 14. County Police* Election, (>and Main-
tenance -^S*ll- 855(1)
VIII
TABLE OF CONTENTS
TITLE 7.
Municipal Corporations
Sec.
Chap. y2. Towns and Vilages 855(9)
Art. 1. How Incorporated 855(9)
Sec. 1. Petition to Superior Court and
Preliminary Election 855(9)
Sec. 2. Certificate of Incorporation 855(13)
Sec. 3. Election for Organization 855(14)
Sec. 4. Corporate Officers and Their Duties
855(15)
Sec. 5. Elections, and Qualification of Voters
855(17;
Art. 2. Powers of Council and Its Officers
855(21)
Sec. 1. Council and Its Meetings 855(21)
Sec. 2. Powers of Council 855(22)
Sec. 3. Taxes, License, and Streets 855(26)
Sec. 4. Mayor and Other Officers 855(31)
Chap. 1. Corporate Courts and Penalties 856
Art. 1. Police Courts 856
Art. 2. Punishment of Offenders 857
Art. 3. Pro Tern Officers 861(1)
Chap. 2. Municipal Taxation 862
Art. 1. Assessors 862
Art. 2. Limitation on Cities' Right of Tax-
a t i o n 864
Art. 3. Assessments for Street and Other Im-
provements 869
Art. 4. Taxation of Railroads by Cities 872
Art. 5. Garnishment and Interest on Tax
Executions 876
Art. 6. Sales for Municipal Taxes, and Re-
demption of Property Sold 879
Chap. 3. Power of Municipality and Its
Officers 886
Art. 1. Councilmen Incompetent to Hold
Other Officer : 887
Art. 2. Cities as Trustees 887
Art. 3. Limitation on Powers of City and
Its Officers 892
Art. 4. Streets Neglected; Duty of Justice .... 902
Art. 5. Citizens as Jurors 903
Art. 6. Licenses to Pawnbrokers 904
Art. 7. Disposition of Public Utility Proper-
ties— Sale or Lease of Plant 904(1)
Art. 8. Maintenance of Wharves, Vessels, etc.,
By Certain Cities 904(5)
Chap. 4. Funding Bonded Debt of Munici-
palities 905
Chap. 5. Census of Cities 909
Chap. 6. Demand Before Suit 910
Chap. 7. City Marshal 911
Chap. 8. Election of Officers in Certain
Cities 913
Chap. 9. System of Supervised Recreation
913(2)
Chap. 1 0 . Fire Departments in Certain
Cities 913(14)
Chap. 11. Repeal or Amendment of Municipal
Charters 913(19)
TITLE 8.
Public Revenue
Chap. 1. Taxation 993(1)
Art. 1. Ad Valorem, Specific, and Occupa-
tion Taxes 993(1)
Sec.
Art. 2. Exemptions from Specific Occupa-
tion Taxes 994
Art. 3. Exemption of Property 998
Art. 3A. Tax Exemption Elections 1001(1)
Art. 4. Persons and Property Subject to Tax-
ation 1002
Art. 5. Franchises, How Taxed 1019
Art. 6. State Tax on Railroads 1031
Art. 7. County Taxation of Railroads 1036
Art. 8. Estate and Inheritance Taxes 1041(1)
Chap. 2. Taxes, How Returned and Col-
lected 1042
Art. 1. Returns to Comptroller- General 1042
Sec. 1. Returns and Payment, How Made 1042
[Sec. 2. Arbitration of Differences 1045
Sec. 3. Returns of Insurance Companies 1047
Sec. 4. Returns to Comptroller, Assessments
in Case of Difference 1050
Sec. 5. Proceedings in Case of No Returns;
Collections by Comptroller 1055
Art. 2. Returns to Receiver of Tax Returns .... 1064
Sec. 1. What to be Returned 1064
Sec. 2. Wild Lands, and Notice to Non-Resi-
dents 1070
Sec. 3. Returns and Payments, When and to
Whom Made; Duty of Receiver of Re-
turns 1075
Sec. 4. Form of Tax Returns 1087
Sec. 5. Oath of Taxpayer 1091
Sec. 6. Blanks, Lists, and Digests 1093
Sec. 7. Assessment or Arbitration in Case of
Insufficient Return 1097
Sec. 8. Overpayment and Mistakes, How Cor-
rected 1101
Sec. 8A. Examination of Tax Returns in Cer-
tain Counties 1104(1)
Sec. 9. Double Tax, When Collected 1105
Sec. 10. Relief from Double Tax 1107
Sec. 11. Liability of Agents of Non-Resi-
dents 1112
Sec. 12. Taxes of Former Years 1113
Sec. 13. Estates not Liable for Double Tax,
When 1114
Sec. 14. Liability of Tax Officers to Third
Parties 1115
Sec. 15. Colored Taxpayers' Returns 1116
Art. 2A. Returns by, and Collection from De-
linquents 1116(1)
Art. 2B. Tax Equalization 1116(6)
Art. 3. List of Insolvents and Defaulters 1117
Sec. 1. Insolvent Lists 1117
Sec. 2. Records of Tax Defaulters 1129
Art. 4. Duty of Comptroller as to Delinquent
Taxpayers 1132
Art. 5. Tax Fi.' Fas. and Sales 1140
Sec. 1. Lien of Tax Fi. Fas 1140
Sec. 2. Interest on Tax Fi. Fas 1144
Sec. 3. Transfer of Tax Fi. Fas 1145
Sec. 4. Dormancy of Tax Fi. Fas 1147
Sec. 5. Alias Tax Fi. Fas 1149
Sec. 6. Tax Execution, When and By Whom
Issued 1151
Sec. 7. Garnishment on Tax Fi. Fas 1154
Sec. 8. Insolvent Tax Fi. Fas 1156
Sec. 9. Tax Fi. Fas., on What Levied 1158
Sec. 10. Claims, How Interposed 1159
Sec. 11. Cost and Fees 1161
Sec. 12. No Judicial Interference 1163
TABLE OF CONTENTS
IX
Sec.
Sec. 13 Levy and Sale under Tax F;. Fas 1H>4
Sec. 14. Tax Execution in Rem and Sale
Thereunder 1168
Sec. 15. Redemption of Property Sold for
Taxes 1169
Sec. 16. Tax Fi. Fas. Levied in any County .... 1174
Sec. 17. Surplus at Tax Sale; Tax Deeds 1175
Sec. 18.- Purchaser's Right to Possession 1175
Sec. 19. Purchase by Counties at Tax Sales .... 1178
Chap. 3. Delinquent Tax-Receivers and Col-
lectors 1181
Art. 1. Penalty for Incomplete, Improper, or
Useless Digest 1181
Art. 2. Execution Against Defaulting Re-
ceiver or Collector and Sureties 1184
Art. 3. Collection Prohibited, When, and Va-
cation of Commissions 1192
Art. 4. Tax-Receivers 1194
Sec. 1. Election and Liability 1194
Sec. 2. Duties of Tax-Receiver 1197
Sec. 3. Examination and Correction of Returns
by Grand Jury 1198
Sec. 4. Tax-Receiver's Compensation 1202
Art. 5. Tax-Collectors 1204
Sec. 1. Election and Oath 1204
Sec. 2. Tax-Collectors' Bonds 1207
Sec. 3. Tax-Collectors' Duties 1211
Sec. 4. Report to Grand Jury and Comptrol-
ler 1218
Sec. 5. Bonds of Collectors in Certain
Counties 1220
Sec. 6. Weekly Reports in Such Counties 1221
Sec. 7. Collector, When Ex Officio Sheriff
1225
Sec. 8. Execution-Docket, Receipt, and Stub-
Book 122o
Art. 6. Compensation of Collection and Re-
ceivers 1234
Art. 7. Miscellaneous Provisions 1236
Sec. 1. Comptroller to Make Rules 1236
Sec. 2. Suit on Bonds 1239
Sec. 3. Tax-Receiver and Tax-Collector to be
Different Persons 1240
Sec. 4. Record and Lien of Tax Officers
Bonds 1241
Sec. 5. Interest on Taxes and Settlements of
Collectors ■ 1245(1)
Chap. 3 A. Department of Revenue 1245(7)
Chap. 4. Revenue from Other Sources 1246
Chap. 5. State Depositories 1249
Sec.
Chap. 6. Publication of Georgia Reports 1346
Chap. 7. Superintendent of Public Printing
i:;<;:>( L9 .
TITLE 9.
Public Debt.
Chap. 1. Public Debt 1263
Chap. 2. Bond Issue to Pay Portion of Public
Debt 1280(1)
TITLE 10.
Public Property.
Chap. 1. Public Buildings 1281
Chap. 2. Land Owned by the State 1285
Chap. 3. Stock Owned by the State 1286
Chap. 4. The Western and Atlantic Railroad
and its Government 1287
Chap. 5. Public Printing 1337
TITLE 11.
Education.
Chap. 1. The University of Georgia and Its
Organization 1363
Art. 1. The University of Georgia 1363
Art. 2. Branches of the University 1397
Art. 2A. Engineering Experiment Station
1398(4)
Art. 3. Farmers' Institutes 1399
Chap. 2. Academy for the Blind 1401
Chap. 3. Academy for the Deaf and Dumb
14 16
Chap. 4. Public School System 1551(1)
Art. 1. Constitutional Provisions 1551(1)
Sec. 1. Taxation and School Funds 1551(1)
Sec. 2. Common Schools 1551(8)
Sec. 3. State School Commissioner 1551(9;
Are. 2. State Board of Education 1551(10)
Art. 3. School-Book Commission, Textbooks
and Supplies 1551(17)
Sec. 1. School-Book Commission 1551(17)
Sec. 2. Uniform Textbooks 1551(19;
Sec. 3. Furnishing Books and Supplies .... 1551(43)
Art. 4. State School Superintendent, His
Powers and Duties 1551(59)
Art. 5. County Boards of Education 1551(81)
Art. 6. Local Taxation for Schools 1551(125)
Art. 7. Building School Houses in Local Tax
Districts 1551(155)
Art. 8. High School Buildings for Joint Use of
Counties and Municipalities 1551(159)
Art. 9. County Superintendent of
Schools ' 1551(164)
Art. 10. Special Days 1551(85)
Art. 10A. Health and Precautions against
Fire 1551(187)
Sec. 1. Health Regulations 1551(187)
Sec. 2. Precautions against Fire 1551(189)
Art. 10B. Compulsory School Attendance
1551(193)
Art. IOC. Vocational Education 1551(198)
Art. 10D. Physical Education 1551(205)
Art. 11. School of Agriculture and Mechanic
Arts 1552.
Art. 11A. Schools for Illiterate Adults .... 1562(13)
Art. 11B. Vocational Rehabilitation 1562(15)
Art. llC. Georgia Illiteracy Commis-
sion 1562(20)
Art. 12. State Library Commission 1563
Chap. 5. Public Libraries 1566
TITLE 12.
Police and Sanitary Regulations
Chap. 1. Georgia State Sanitarium 1571
Art. 1. The Trustees 1571
Art. 2. Physicians 1585
Art. 3. Marshal 1591
Art. 4. The Superintendent 1593
Art. 5. The Admission, Management, and Dis-
charge of Patients : 1595
X
TABLE OF CONTENTS
Sec.
Chap. lA. Georgia Training School for Mental
Defective 1614(1)
Chap. 2. Sanitarium for the Treatment of Tu-
berculosis Patients 1615
Chap. 3. Private Insane Asylum; Protection of
Inmates 1624
Chap. 4. Private Hospitals and Sanitariums .... 1628
Chap. 5. Health and Quarantine 1632
Chap. 6. State Board of Health 1656
Chap. 7. County Sanitary Regulations, Boards
of Health, Sanitary Districts, Cemeteries,
Hospitals, etc., Contracts for Sanitation .... 1670
Chap. 8. Municipal Sanitariums for Consump-
tives 1677
Chap. 8A. Registration of Births and
Deaths 1681(1)
Chap. 9. Practice of Medicine, How Regu-
lated 1682
Art. 1. Practitioners 1682
Art. 2. State Board of Medical Examiners
1697(1)
Chap. 10. Professional Nursing 1698
Art. 1. Board of Examiners 1698
Art. 2. Georgia State Sanitarium Training
School for Nurses 1711(2)
Chap. 11. State Board of Embalming 1712
Chap. 12. State Board of Pharmacy 1722
Chap. 13. Board of Osteopathic Examiners .... 1732
Chap. 13A. Board of Chiropractic Exam-
iners 1741(1)
Chap. 13B. Board of Examiners in Optome-
try 1741(18)
Chap. 14. Dentists and Practice of Dentis-
try 1754(1)
Chap. 14A. Barbering and Board of Barber
Examiners 1754(28)
Chap. 14B. Board of Examiners of Archi-
tects 1754(41)
Chap. 14C. Regulation of Nurserymen, Tree
Surgeons, Landscape Air c h i t'ec ts v
etc 1754(66)
Chap. 15. Protection of Cemeteries 1755
Chap. 15A. Placement or Adoption o f
Children 1762(1)
Chap. 15B. Explosive 1762(14)
Chap. 15C. Regulation of Billiard
Rooms 1762(20)
Chap. 15D. Regulation of Jewelry Auc-
tions 1762(36)
Chap. 16. Substitutes for Intoxicants (Re-
pealed) 1763
Art. 1. Substitutes for Intoxicants (Re-
pealed) 1763
Chap. 17. Motor Vehicle Laws 1770(1)
Art. 1. Acts 1910 and Amendatory Acts .... 1770(1)
Art. 2. Acts 1915, Ex. Sess. and Amendatory
Acts 1770(21)
Art. 3. Acts 1921, pp. 255 et. seq 1770(50)
Art. 4. Title Registration Acts 1770(60^)
Chap. 18. Business of Making Loans 1770(61)
Chap. 19. Hotels and Inns 1770(80)
TITLE 13.
Regulations for Particular Branches of
Trade and Agriculture.
Chap. 1. Inspection 1771
Art. 1. Inspection, Analysis, and Sale of
Fertilizers 1771
Sec.
Sec. 1. Analysis 1771
Sec. 2. Cottonseed Meal, Inspection and
Analysis of 1779
Sec. 3. Inspectors, Their Duties and Com-
pensation 1780
Sec. 4. Samples 1785
Sec. 5. Tags and Registration 1793
Sec. 6. Expenses of Inspection 1795
Sec. 7. Sales in Bulk 1796
Art. 2. Inspection of Oils ". 1800
Chap. 2. Pure Spirits of Turepentine Acts. In-
spection of Naval Stores and Appointment
of Inspectors 1815
Art. 1. Supervising Inspector, Appointment,
and Qualification 1815
Art. 2. Inspection of Naval Stores and
Lumber 1832
Art. 3. Appointment of Inspectors by Cities,
and Their Duties 1842
Chap. 2A. Insecticides and Fungicides .... 1843(1)
Chap. 2B. Manufacture and Sale of Ethyl
Alcohol 1843(11)
Chap. 3. Regulations of Agriculture, Etc 1844
Art. 1. Cotton, Rice, etc 1844
Art. 2. Cultivation of Rice 1853
Art. 3. Flour, Corn-Meal, and Grain 1864
Art. 4. Mills and Millers 1877
Chap. 3A. State Warehouse Department .... 1879(1)
Chap. 4. Weights and Measures 1880
Chap. 4A. Cotton Standards 1885(1)
Chap. 4B. Statistics on Leaf Tobacco .... 1885(3)
Chap. 5. Peddling 1886
Chap. 5A. Installation and Sale of Lightning
Rods 1896(1)
Chap. 5B. Real Estate Brokers and Sales-
men 1896(4)
Chap. 6. Pilotage 1897
Chap. 7. Oysters 1937
Chap. 8. Posting Land and Registration 1958
Chap. 9. State Geologist 1963
Chap. 10. Phosphate Deposits, and Purchase
of Native Gold 1977
Chap. 11. State Bureau of Immigration 1983
Chap. 12. Protection of Trade-Marks and
Names of Benevolent Organizations .... 1989
Chap. 13. Certified Public Accountants 1995
TITLE 14.
Inclosures and Stock.
Chap. 1. Estrays 2001
Chap. 2. Marks and Brands 2016
Chap. 3. Inclosures and Fences 2021
Art. 1. Fences 2021
v\rt. 2. Proceedings in Case of Damage by
Animals 2025
Art. 3. Gates 2028
Art. 4. Watercourses and Line Fences,
when 2030
Art. 5. Impounding Animals 2032
Art. 6. Election for no Fences 2036
Art. 7. Miscellaneous Provisions 2043
Art. 8. Hogs Running at Large 2052
Art. 9. Board of Veterinary Examiners 2057
TITLE 15.
Department of Agriculture.
Chap. 1. Commissioner of Agriculture 2065
TABLE OF CONTENTS
XI
Sec.
Chap. 2. Duty as to Propagation and Protec-
tion of Fish 2088
Chap. 3. Foods, Drugs, and Liquors, Adul-
teration or Misbranding Prohibited .... 2092
Art. 1. Chief Food Inspector and Chief Drug
Inspector 2092
Art. 2. Meaning of Certain Terms 2099
Art. 3. Adulteration or Misbranding Prohib-
ited 2101
Art. 4. When an Article Is Adulterated or
Misbranded 2103
Art. 5. Samples 2105
Art. 6. Concentrated Commercial Feeding
Stuffs 2106
Art. 7. Standards of Purity to be Fixed 2115
Art. 8. When Dealer is Protected 2116
Art. 9. Sanitation of Food Places 2119(1)
Chap. 4. Horticulture and Pomology 2120
Chap. 5. Regulation of Honey Bees 2141(3)
Chap. 6. Georgia Coastal plain Experimental
Station 2141(8)
Chap. 7. Bureau of Markets 2141(11)
TITLE 16.
State Board of Game and Fish.
Chap. 1. Creation of Board 2158(1)
Chap. 2. State Commissioners of Game and
Fish, Tidewater Commissioner, Wardens,
Inspectors and Patrolmen 2158(8)
Chap. 3. Oysters and Oyster Beds 2158(16)
Chap. 4. Licenses 2158(25)
Chap. 5. Records Required of Fishing Boats
• 2158(30^4)
TITLE 17.
Department of Commerce and Labor.
Chap. 1. Commissioner of Commerce and
Labor and Assistants 2158(31)
TITLE 18.
Department of Archives and History.
Chap. 1. Establishment of Department;
State Historical Commission Officers
^ 2158(31)
TITLE 19.
Department of Audits and Accounts.
Chap. 1. Department Established; State
Auditor 2158(49)
TITLE 20.
State Investigating and Budget Commission.
Chap. 1. Commission Established; Member-
ship; Duties, Etc 2158(60)
TITLE 21.
Examining Commission.
Chap. 1. Commission Created; Membership;
Duties; Powers, Etc 2158(68)
TITLE 22.
Board of Public Welfare.
Sec.
Chap. 1. Establishment of Board; Powers;
Duties, Etc 2158(77)
TITLE 23.
Community Service Commission.
Chap. 1. Commission Created; Membership;
Duties, Etc 2158(91)
TITLE 24.
Veterans' Service Bureau.
Chap. 1. Bureau created; Director; Duties,
Etc 2158(102)
TITLE 25.
Board of Harbor, Port and Terminal
Commissioners.
Chap. 1. Board Created; Membership; Pow-
ers, Etc 2158(116)
TITLE 26.
Georgia State Canal and Waterway
Commission.
Chap. 1. Commission Created; Membership;
Duties, Etc 2158(109)
TITLE 27.
State Board of Foresty.
Chap. 1. Board Created; Membership; Duties,
Etc 2158(114)
TITLE 28.
Georgia Children's Code Commission.
Chap. 1. Commission Created; Membership,
Duties, Etc 2158(118)
TITLE 29.
Mansion Lease Commission.
Chap. 1. Commission Created; Membership;
Duties, Etc 2158(123)
THE CIVIL CODE.
TITLE l.
Of Persons.
Chap. 1. Different Kinds of Persons, Their
Rights and Duties 2159
Art. 1. Of Citizens 2159
Art. 2. Residents and Aliens 2170
Art. 3. Persons of Color 2177
CKap. 2. Domicile and Manner of Changing
the Same 2181
XII
TABLE OF CONTENTS
TITLE 2.
Corporation.
Sec.
Chap. 1. Corporation, Their Creation, Powers,
and Liabilities 2188
Art. 1. How Created 2188
Art. 2. Their Creation 2192
Art. 2A. Non-Par Stock 2202(l)
Art. 3. Foreign Corporations 2203
Art. 4. Corporation Commissioner 2208
Art. 5. Powers and Liabilities of Corpora-
tions 2215
Art. 6. Their Dissolution 2238
Art. 6A. Liability of Officers 2246(1)
Art. 7. Liability of Stockholders 2247
Art. 8. Suits against Corporations or Stock-
holders 2251
Art. 9. Corporations, How Served 2258
Chap. 2. Private Corporations 2266
Art. 1. Banks (Repealed) 2262
Sec. 1. Preliminary Provisions 2366(1)
Sec. 2. Department of Banking 2366(7)
Sec. 3. Examinations of Banks 2366(30)
Sec. 4. Reports of Banks 2366(40)
Sec. 5. Communications from Department of
Banking 2366(45)
Sec. 6. Impairment of Capital 2366(48)
Sec. 7. Taking Possession of Bank by Super-
intendent 2366(51)
Sec. 8. Incorporation of Banks 2366(80)
Sec. 9. Amendment of Bank Charters .... 2366(90)
Sec. 10. Renewal of Bank Charters 2366(99)
Sec. 11. Private Bank Converted into State
Bank 2366(105)
Sec. 12. National Bank Converted into State
Bank 2366(108)
Sec. 13. Merger or Consolidation of Banks
2366(112)
Sec. 14. Voluntary Liquidation and Dis-
solution 2366(119)
Sec. 15. Forfeiture of Charter 2366(131)
Sec. 16. Mandamus against Superintendent
'.. 2366(135)
Sec. 17. Powers of Banks 2366(138)
Sec. 18. Liabilities of Stockholders 2366(139)
Sec. 19. Regulation of the Business of
Banking 2366(147)
Sec. 20. Operation and Effect or Act .... 2366(196)
Art. lA. Credit Unions 2366(197)
Art. 2. Canal Companies 2367
Art. 3. Express Companies 2381
Art. 4. insurance Companies 2387(l)
Sec. y2. Insurance Department 2387(1)
Sec. 1. Incorporation of Insurance Com-
panies 2388
Sec. 2. Insurance Companies; How Author-
ized to do Business 2413
Sec. 3. Bonds and Deposits Required 2418
Sec. 4. Regulation of Insurance Companies .... 2433
Sec. 5. Proceedings in Case of Insolvency or
Receivership 2441
Sec. 5A. When Commissioner to Conduct
Business of Insurance Companies .... 2442(2)
Sec. 6. Agents of Insurance Company 2443
Sec. 6A. Fire and Casualty Insurance agents
2448(5)
Sec. 7. Comity to Foreign Insurance Com-
panies 2449
Sec. 8. Assessment and other Companies,
Reports, Etc 2450
Sec.
Sec. 9. Pooling 2466
Sec. 10. Fire Insurance Contracts 2470
Sec. 11. Fire and Casualty Insurance Com-
panies 2491
Sec. 12. Life Insurance 2496
Sec. 13. Industrial Life, Etc., Insurance 2502
Sec. 14. Marine Insurance 2515
Sec. 15. Mutual Insurance 2529
Sec. 16. Mutual Companies Insuring against
Loss by Burglary, Etc 2535
Sec. 16A. Mutual Companies Insuring against
Loss by Fire, etc 2543(1)
Sec. 17. Amount of Recovery and Dam-
ages 2544
Sec. 18. Fidelity-Insurance 2550
Sec. 19. Suits against Insurance Companies .... 2563
Art 5. Navigation Companies, How Incorpo-
rated 2565
Art. 6. Railroads 2577
Sec. 1. Incorporation 257?
Div. 1. Method, of Incorporation 2577
Div. 2. Organization and Capital Stock 2581
Div. 3. Corporate Powers of Railroads 2584
Div. 3A. Surrender of Franchise 2599(1)
Div. 4. Street-Railroads 2600
Sec. 2. Georgia Public Service Commission
2615
Sec. 3. Operation of Railroads 2671
Sec. 4. Farm Crossings and Cattle Guards .... 2699
Sec. 5. Injuries to Stock 2703
Sec. 6. Railroads as Common Carriers, and
Herein of other Carriers 2711
Sec. 7. Connecting Roads; Receipt and De-
livery of Freights, etc 2752
Sec. S. Injuries by Railroads 2779
Sec. 9. Rolling-Stocks of Railroads 2790
Sec. 10. Liens against Railroads 2793
Sec. 11. Suits against Railroads and Electric
Companies 2798
Art. 7. Telegraph and Telphone Companies .... 2803
Sec. 1. Telegraph Companies, Their Incorpo-
ration „ 2803
Sec. 2. Construction of Telegraph or Tele-
phone Lines 2809
Sec. 3. Duties as to Transmitting and De-
livering Messages 2812
Sec. 4. Suits against Telegraph Companies .... 2814
Art. 8. Trust Companies 2815
Sec. 1. Their Incorporation 2815
Sec. 2. Their Powers 28i7
Sec. 3. Organization and Management 2818
Sec. 4. Other Corporations May Acquire 'Like
Powers 2821
■»■'*
Art. 9. Corporations Created by Superior
Court 2822
Sec. 1. How Incorporated and Dissolved .... 2822
Sec. 2. Schools, Churches, Societies, etc 2824
Sec. 3. Literary and Other Similar Corpo-
rations 2836
Sec. 4. Plank Road 2841
Sec. 5. Charitable Institutions for Custody of
Children 2845
Sec. 6. Georgia Industrial Home 2862
Sec. 7. Fraternal Beneficiary Orders 2866
Sec. 7A. Other Regulations of Fraternal
Benefit Societies 2877(4)
Sec. 8. Building and Loan Associations and
Their Regulation • 2878
Sec. 9. Interstate Building and Loan Asso-
ciations 2883
TABLE OF CONTENTS
XIII
Sec.
Sec. 10. Investment Companies 2899
Sec. 11. Bonded Public Warehousemen 2910
Sec. 12. Waterworks Companies 2923
Sec 13. Franchise Considered, and Rights
Acquired 2926
Art. 10. Co-operating Marketing Associ-
ations 2928(1)
Sec. 1. Under Acts of 1920 2928(1)
Sec. 2. Under Acts of 1921 2928(13)
Chap. 3. Sale of Stocks, Bonds, etc. "Blue
Sky Law" 2928(42)
TITLE 3.
Of Domestic Relations.
Chap. 1. Of Husband and Wife 2929
Art. 1. Of Marriage and Divorce 2929
Sec. 1. Marriage, How and by Whom Con-
tracted ". 2929
Sec. 2. Of Divorces, and How Obtained 2944
Sec. 3. Of Alimony 2975
Art. 2. Of the Right and Liabilities of
Husband and Wife 2992
Art. 3. Of Marriage Contracts and Settle-
ments 2999
Chap. 2. Of Parent and Child •.. 3012
Art. 1. Legitimate Children 3012
Art. 2. Illegitimate Children, or Bastards .... 3026
Chap. 3. Of Guardian and Ward 3031
Art. 1. Their Appointment, Powers, Duties,
Liabilities, Settlements, Resignation,
etc 3031
Sec. 1. How and by Whom Appointed 303 L
Sec. 2. The Powers, Duties, and Liabilities
of Guardians 3058
Sec. 3. Settlement of Guardians, and Resig-
nation, and Letters Dismissory 3076
Art. 2. Guardians of Lunatics, Idiots, and
Persons Non Compos Mentis 3089
Art. 3. Foreign Guardians 3107
Chap. 4. Master and Servant 3117
Art. 1. Indented Servants and Apprentices .... 3117
Art. 2. Master's Liability to Servant 3129
Art. 3. Hours of Labor in Manufacturing
• Establishment 3137
Art. 4. Child Labor Regulated (Repealed)
3143
Art. 5. Seats and Fire-Escapes Act 3150
Art. 6. Workmen's Compensation Act .... 3154(1)
TITLE 4.
i fit
Of Relations Arising from Other Contracts.
Chap. 1. Of Partnership 3155
Art. 1. General Principles 3155
Art. 2. Rights and Liabilities of Partners
Among Themselves 3169
Art. 3. Rights and Liabilities of Partners to
Third Persons 3179
Art. 4. Limited Partnership 3191
Chap. 2. Debtor and Creditor 3215
Art. 1. General Principles 3215
Sec. 1. Relations Defined, Etc 3215
Sec. 2. Statute of Frauds 3222
Art. 2. Acts Void as against Creditors 3224
Chap. 3. Preferences and Assignment for
Benefit of Creditors 3230
Chap. 4. Insolvent Traders 3249
Sec.
Chap. 5. Mortgages 3256
Art. 1. General Principles 3256
Art. 2. Mortgages on Real Estate, How Fore-
closed :;:>;ii
Sec. 1. Application to Foreclose: When,
Where, and How Made, and Proceed-
ings Thereon : 3276
Sec. 2. Of Pleas, Defenses, etc., When and
How Made 327'.)
Sec. 3. Of Judgment and Disposition of
Mortgaged Property 3283
Sec. 4. Proceeds of Sale of Mortgaged Prop-
erty, How Appropriated 3284
Art. 3. Of Mortgages on Personal Property,
and Bills of Sale to Secure Debts, How
Foreclosed 3280
Sec. 1. Application to Foreclose, by Whom
and How Made 328«i
Sec. 2. Of the Defenses, When and How
Made 3300
Art. 4. Foreclosure in Equity 3305
Chap. 6. Sales to Secure Debts 3306
Chap. 7. Trust Deeds to Secure Debts 3311
Chap. 8. Conditional Sales 3318
Chap. 9. Registration of Transfers and Liens
3320
Chap. 10. Liens Other Than Mortgages 3329
Art. 1. To Whom Granted, Rank and Prior-
ity 3329
Art. 2. Foreclosure of Liens on Real Estate
3365
Art. 3. Foreclosure of Liens on Personal,
Property 3366
Art. 4. Miscellaneous Provisions 3371
Chap. 11. Homestead 3377
Art. 1. Exemptions 3377
Sec. 1. In What, and to Whom Granted .... 337 7
Sec. 2. Application and Schedule 3378
Sec. 3. Notice to Creditors 3381
Sec. 4. Surveyor's Return., Approval of Plat
and Application 3384
Sec. 5. Town Property 3389
Sec. 6. Exemption of Money 3391
Sec. 7. Rights of Wife and Children, How
Protected 3392
Sec. 8. Sale, Reinvestment, and Income 33'.) 7
Sec. 9. Levy and Sale, When Allowed 3399
Sec. 10. Receiver For Excess 3405
Sec. 11. Waiver of Homestead Right 3413
Sec. 12. Supplemental Homesteads 3415
Art. 2. Statutory or Short Homestead 3410
Sec. 1. Property Exempt from Sale 3416
Sec. 2. How Set Apart 3417
Sec. 3. Effect of Exemption 3422
Chap. 12. Interest and Usury 34~o
Art. 1. General Principles 342G
Art. 2. Business of Loans on Personal Prop-
erty 3440
Chap. 13. Of Bailments 3467
Art. 1. General Principles 3467
Art. 2. Of Hiring 3470
Art. 3. Of Deposits 3494
Art. 4. Of Loans 3516
Art. 5. Pledges and Pawns 35^7
Chap. 14. Of Principles and Surety 353S
Art. 1. The Contract 3538
Art. 2. Relative Rights of Creditors and
Surety 3.") 12
Art. 3. Rights of Surety against Principal .... 3551
XIV
TABLE OF CONTENTS
Sec.
Art. 4. Rights of Sureties among Themselves
3564
Art. 5. Rights of Sureties as to Third Persons
3567
Chap. 15. Of Principal and Agent 3169
Art. 1. Relations of Principal and Agent
Among Themselves 3569
Art. 2. Rights and Liabilities of Principal as
to Third Persons 3593
Art. 3. Rights and Liabilities of Agent as to
Third Persons 3607
Art. 4. Overseers 3615
TITLE 5.
Of Property and the Tenure by Which it is Held,
Chap. 1. Of Realty 3617
Chap. 2. Of Personalty 3646
TITLE 6.
Estates and Rights Attached Thereto.
Chap. 1. Of Absolute Estates or in Fee Sim-
ple 3656
Chap. 2. Of Estates for Life 3663
Chap. 3. Estates in Remander and Rever-
sion 3674
Chap. 4. Of Estates for Years 3685
Chap. 5. Of Landlord and Tenant 3691
Chap. 6. Of Estate on Condition 3716
Chap. 7. Of Tenancy in Common 3722
Chap. 8. Of Trust Estates, Trusts and Trus-
tees, and Deeds to Interests in Property
For its Improvement 3728
Art. 1. Of Their Creation and Nature 3728
Art. 2. Of Trustees; Their Appointment,
Powers, Etc 3743
Art. 3. Of Trusts and Trustees 3779
Art. 4. Claims Against Trust Estates 3786
Art. 5. Deeds to Beneficial Interests 3792
TITLE 7.
Of Title and Mode of Conveyance.
Chap. 1. Of Title by Grant 3796
Art. 1. Grants Generally 3796
Art. 2. Of Land Lotteries 3811
Art. 3. Processioning 3817
Chap. 2. Of Title by Will 3827
Art. 1. Of the Nature of Wills, By Whom
and How Executed 3827
Art. 2. Of Probate and its Effect 3853
Art. 3. Probate of Foreign Wills 3871
Art. 4. Of the Executor 3883
Art. 5. Of Devises and Legacies 3895
Art. 6. Of Revocation 3916
Art. 7. Of Nuncupative Wills 3925
Chap. 3. Of Titles by Descent and Admini-
stration 3929
Art. 1. Of Inheritable Property and the
Relative Rights of the Heirs and Ad-
ministrator 3929
Art. 2. Of Administration 3935
Sec. 1. Different Kinds of Administrators
and Rules for Granting Letters 3935
Sec. 2. County Administrators 3952
Sec.
Sec. 3. The Appointment of Administrators,
Their Bond, and Removal 3969
Sec. 4. Of Inventories, Appraisements, and
Returns 3983
Sec. 5. Of Managing the Estate and Paying
the Debts 3997
Sec. 6. Of Receiving and Making Titles on
Bonds for Title 4016
Sec. 7. Administrator's Sale 4021
Sec. 8. Of Distribution, Advancements, and
Year's Support 4040
Sec. 9. Of Commissions and Extra Compen-
sation, and Expense of Giving Bond 4062
Sec. 10. Of 'Final Settlements and Receipts .... 4073
Sec. 11. Suits Against Executors, Admini-
strators, and Sureties 4081
Sec. 12. Pleas of Administrators, Etc 4086
Sec. 13. Judgment Against Administrators .... 4088
Sec. 14. Of Letters Of Dismission and Re-
signation 4089
Sec. 15. Of Removing Proceeding to Another
County 4096
Sec. 16. Of Foreign Administrators 4101
Chap. 4. Of Title by Contract 4106
Art. 1. Of Private Sales 4106
Art. 2. Of Gifts 4144
Chap. 5. Of Title by Escheat and Forfeiture
... 4155
Chap. 6. Of Title by Prescription 4163
Chap. 7. Of Conveyances of Titles 4179
Art. 1. Generally 4179
Art. 2. Of Convenants and Warranty 4192
Art. 3. Of Registration 4198
Chap. 8. Land Registration 4215(1)
TITLE 8.
Of Contracts.
Chap. 1. General Principles 4216
Chap. 2. Of the Parties 4232
Chap. 3. Of the Consideration 4241
Chap. 4. Of Illegal and Void Contracts 4251
Chap. 5. Of Construction of Contracts 4265
Chap. 6. Negotiable Instruments 4269
Art. 1. Of Negotiable Papers and How*
Transferred 4269
Art. 2. Of Indorsers, Notice and Protest .... 4281
Art. 3. Of the Rights of Holders 4293
Art. 4. Negotiable Instruments in General
4294(1)
Sec. 1. Form and Interpretation 4294(1)
Sec. 2. Consideration 4294(24)
Sec. 3. Negotiation 4294(30)
Sec. 4. Rights of the Holder 4294(51)
Sec. 5. Liabilities of Parties 4294(60)
Sec. 6. Presentment for Payment 4294(70)
Sec. 7. Notice of Dishonor 4294(89)
Sec. 8. Discharge of Negotiable Instruments
4294(119>
Art. 5. Bills of Exchange 4294(126)
Sec. 1. Form and Interpretation 4294(126)
Sec. 2. Acceptance 4294(132)
Sec. 3. Presentment For Acceptance .... 4294(143)
Sec. 4. Protest 4294(152)
Sec. 5. Acceptance for Honor 4294(161;
Sec. 6. Payment for Honor 4294(171)
Sec. 7. Bills in a Set 4294(178)
Art. 6. Promissory Notes and Checks .... 4294(184)
TABLE OF CONTENTS
XV
Sec
Art. 7. General Provisions 4294(190)
Chap. 6A. Notes, Etc., For Stock Sale by
Promoters 4294(196)
•Chap. 7. Of Defenses to Contracts 4295
Art. 1. Denial of the Contracts 4295
Art. 2. Denial of the Obligation of a Contract,
Either Originally or by a Subsequent
Act of the Opposite Party 4300
Art. 3. Of Payment and Herein of Appro-
priation of Payments 4311
Art. 4. Of Performance, and Here in of
Tender ., 4318
Art. 5. Accord and Satisfaction 4326
Art. 6. Of Pendency of Another Action, and
Former Recovery 4331
Art. 7. Of Set-Off and Recoupment 4339
Art 8. Of Limitation of Actions on Con-
tracts 4354
Sec. 1. Periods of Limitation 4354
Sec. 2. Exception and Disabilities 4374
Sec. 3. New Promise 4383
Chap. 8. Of Breach and Damage 4389
TITLE 9.
Of Torts, or Injuries to Persons or Property.
Chap. 1. General Principles and Herein of
Fraud and Deceit 4403
Chap. 2. Of Injuries to the Person 4422
Art. 1. Physical Injuries 4422
Art. 2. Injuries to Reputation 4428
Sec. 1. Of Libel and Slander 4428
Sec. 2. Malicious Prosecution 4439
Art. 3. Other Torts of the Person 4447
Sec. 1. False Imprisonment 4447
Sec. 2. Malicious Arrest 4450
Sec. 3. Nuisances and Other Injuries to
Health 4454
Sec. 4. Of Indirect Injuries to the Person .... 4463
Chap. 3. Of Injuries to Property 4470
Art. 1. To Real Estate 4470
Art. 3. Of Injuries to Personalty Generally
4481
Chap. 4. Of Defenses 4488
Art. 1. Of Justification 4488
Art. 2. Of Satisfaction and Herein of Tender
4491
Art. 3. Limitation of Actions 4495
Art. 4. Of Other Defenses 4499
Chap. 5. Of Damages 4502
TITLE 10.
Of Equity.
Chap. 1. General Principles 4518
Chap. 2. Of Discovery 4543
Art. 1. In Equitable Proceedings 4543
Art. 2. Discovery in other Cases 4550
Chap. 3. Of Perpetuation of Testimony 4555
Art. 1. Generally 4555
Art. 2. Method of Perpetuating Testimony
4560
Chap. 4. Of Accident and Mistake 4565
Chap. 5. Of Account and Set-Off 4586
Chap. 6. Of Administration of Assets 4594
Chap. 7. Of Charities 4603
Chap. 8. Of Election 4609
Chap. 9. Of Execution of Powers 4614
Sec.
Chap. 10. Of Fraud 4621
Chap. 11.. Of Specific Performance 4633
THE CODE OF PRACTICE.
TITLE l.
Courts of Original Jurisdiction, Their Offices,
Organizations, and Practice.
Chap. 1. General Provisions 4640
Chap. 2. Justices Courts, Their Officers and
Practice 4648
Art. 1. Justices of the Peace, Notaries Public,
and Their Courts 4648
Art. 2. Constables 4680
Art. 3. Of Proceedings in Justices Courts;
Time and Place of Holding Justices 4698
Art. 4. Of Jurisdiction of Justices Courts 4709
Art. 5. Commencement of Suits Service, Etc.
4715
Art. 6. Pleas and Defenses 4726
Art. 7. Evidence 4729
Art. 8. Trial and Judgment 4733
Art. 9. Appeals and Juries 4738
Art. 10. Claims, Garnishments and Other
Issues in Justice Courts 4750
Art. 11. Final Judgment and Execution 4757
Art. 12. Justices' Courts may Rule the Con-
stable, Punish Defaulting Witnesses and
Punish Contempts 4762
Art. 13. Levy and Sale Under Fi. Fa. From
Justice Courts 4765
Art. 14. Cities of Seventy-Five Thousand or
More 4770
Art. 15. In Cities of Sixty Thousand or
More >JA 4773
Chap. 2A. The County Court. 4775(1)
Art. 1. Establishment 4775(1)
Art. 2. The Judge 4775(2)
Art. 3. Times and Places of Holding County
Courts 4775(12)
Art. 4. Clerk 4775(17)
Art. 5. Solicitors 4775(19)
Art. 6. Bailiffs 4775(20)
Art. 7. Jurisdiction 4775(24)
Art. 8. Procedure in County Courts 4775(35)
Art. 9. Appeals 4775(45)
Art. 10. Certiorari 4775(46)
Art. 11. Sales Under County Court Process
4775(47)
Art. 12. Costs 4775(48)
Chap. 3. Ordinaries 4776
Art. 1. Ordinaries and Their Courts 4776
Art. 2. Jurisdiction of Courts of Ordinary .... 4790
Art. 3. Jurisdiction over County Affairs 4796
Art. 4. Other Authority of Ordinary 4798
Art. 5. The Ordinaries As Clerks 4805
Chap. 4. Ordinaries Courts 4809
Art. 1. Proceedings Therein 4809
Art. 2. Of the Practice in the Court of Ordi-
nary 4812
Art. 3. Proceedings Before the Ordinary Sit-
ting for County Purposes 4821
Art. 4. Fees of Ordinary 4827
Chap. 5. City Courts 4828
Art. 1. Judges May Exchange 4828
Art. 1A. Salaries of Judges 4828(1)
Art. 2. Deputy Clerk 4829
XVI
TABLE OF CONTENTS
Sec.
Art. 3. Stenographic Reporters 4830(1)
Chap. 5A. City Courts Established Upon
Recommendation of Grand Jury 4831(1)
Art. 1. Organization and Jurisdiction 4831(1)
Art. 2. Time and Place of Holding 4831(6)
Art. 3. Judges of the City Court 4831(9;
Art. 4. Clerk and Sheriff 4831(20)
Art. 5. Bailiffs 4831(23)
Art. 6. Jurors 4831(24)
Art. 7. Pleadings and Proceedings 4831(30)
Art. 8. Transfers from County Court .... 4831(39)
Chap. 6. The Superior Courts and Their
Officers 4832
Art. 1. The Superior Court and its Judges
4832
Art. 2. Judicial Districts and Circuits 4870
Art. 3. Sessions and Adjournments of Supe-
rior Courts 4871
Art. 4. The Clerks of the Superior Courts .... 4878
Art. 5. Sheriffs and Their Duties 4902
Art. 6. Solicitors-General 4921
Chap. 7. Attorneys at Law 4930
Art. 1. Who May Practice 4930
Art. 2. Application for Admission 4934
Art. 3. Scope of Examination .' 4935
Art. 4. Board of Examiners 4936
Art. 5. Examination and Admission 4940
Art. 6. Admission Fee and Rules 4943
Art. 7. Attorney's Oath 4945
Art. 8. Lawyers From Other States 4946
Art. 9. Admission to the Supereme Court or
Court of Appeals 4950
Art. 10. General Principles 4951
Art. 11. Proceedings to Remove an Attorney
; 4969
Chap. 8. Stenographers 4984
Chap. 9. Superior-Court Bailiffs 4990
Chap. 10. Juries ...• 4997
Chap. 11. Court Law Libraries 4997(1)
TITLE 2.
Special Rights, Remedies, and Proceedings.
Chap. 1. Appeals 499S
Art. 1. In What Cases Allowed 4998
Art. 2. When, by Whom, and How Entered
5000
Art. 3. Effect of Appeals 5014
Art 4. How and When Tried 5017
Chap. 2. Arbitration and Award 5019
Art. 1. Common-Law Award 5019
Art. 2. Statutory Award 5030
Chap. 3. Of Attachment 5055
Art. 1. Of Issuing Attachments 5055
Art. 2. In What Manner, on What Property
Executed and Proceedings Thereon 5075
Art. 3. Attachments for Purchase-Money .... 5083
Art. 4. Attachments Against Fraudulent
Debtors 5088
Art. 4A. Attachments in Aid of Foreclosure
5093(1)
Art. 5. Proceedings on Garnishments in
Attachment 5094
Art. 6. Of Pleading and Defenses in Attach-
ment 5102
Art. 7. Replevy and Disposition of Property
Attached 5113
Art. 8. Of Claims and Proceedings Thereon
in Attachment 5115
Sec.
Art. 9. Of Liens of Attachments, Judgments
and Execution 5121
Chap. 4. Auditors 5127
Art. 1. Appointment and Powers 5127
Art. 2. Auditors' Reports 5131
Art. 3. Exceptions 5135
Art. 4. Hearing of Exceptions and Final Dis-
position of Case 5140
Art. 5. Auditors' Fees 5148
Chap. 5. Bail in Actions for Personalty 5150
Chap. 6. Of Claims to Property in Execution
'. 5157
Art. 1. How and by Whom Interposed 5157
Art. 2. When, Where, and How Tried 5167
Chap. 7. Of Claims at Other Sales 5167
Chap. 8. Of Writ of Certiorari 5180
Art. 1. In What Case the Writ of Certiorari
Lies 5180
Art. 2. How Obtained, and Proceedings
Thereon 5181
Art. 3. Of an Answer, Hearing, Judgment,
and Costs 5195
Sec. 1. Of the Answer 5195
Sec. 2. Of the Hearing 5198
Sec. 3. Of the Judgement and Costs 5201
Chap. 9. Condemnation of Private Property
5206
Art. 1. Notice and to Whom Given 5206
Art. 2. Appointment of Assessors 5219
Art. 3. Hearing Before Assessors 5223
Art. 4. To What Condemnation Applicable,
Appeal, Final Judgment, Etc 5228
Art. 5. Condemnation on Petition of State of
Federal Government 5246(1)
Chap. 10. Dower 5247
Art. 1. Defined, How Assigned, How Barred,
Etc 5247
Art. 2. Dower, How Assigned 5257
Chap. 11. Garnishments 5265
Art. 1. How Issued and Served; Answer; and
What Is Subject to 5265
Art. 2. Garnishment in Different Counties
5275
Art. 3. Dissolution of Garnishment 5280
Art. 4. Answer, Traverse, Claim, and Judg-
ment 5281
Art. 5. Exemptions from Garnishment 5296
Chap. 12. Of Illegality of Executions 5305
Chap. 13. Lost Papers, Where, When and
How Established 5312
Art. 1. Establishment of Lost Papers in Su-
perior Court 5312
Art. 2. Establishment of Lost Papers in
Justices' Court 5322
Art. 3. Summary Establishment of Lost
Papers 5326
Chap. 14. Nuisances and Their Abatement .... 5329
Chap. 15. Officers of Court, Rules Against .... 5341
Chap. 16. Of Partition 5355
Art. 1. General Principles 5355
Art. 2. Partition of Land 5358
Sec. 1. When, How and by Whom the Ap-
plication for Partition Must Be Made
5358
Sec. 2. Notice to the Parties, How Given, and
on Whom Served 5360
Sec. 3. The Issue and Return of the Writ of
Partition 5361
Sec. 4. Defenses, When and How Made 5363
TABLE OF CONTENTS
XVII
Sec.
Sec. 5. Of Judgment 5364
Sec. 6. Remedy of Party Absent Under Dis-
ability or Not Notified 5369
Art. 3. Partition of Personal Property, How-
Obtained 5370
Chap. 17. Possessory Warrant and Proceed-
ings Thereon 5371
Art. 1. By Whom and upon What Ground
Possessory Warrant May Issue 5371
Art. 2. How Warrant Must Be Executed and
Returned 5372
Art. 3. The Trial Judgment, and Subsequent
Proceedings 5373
Chap. 18. Trespassers on Land and Tenants
Holding Over 5380
Art. 1. Proceedings Against Intruders on
Land and Tenant Holding Over 5380
Sec. 1. Proceedings Against Intruders 53S0
Sec. 2. Proceedings Against Tenants Holding
Over 5385
Art. 2. Forcible Entry and Detainer 5395
TITLE 3.
Extraordinary and Equitable Remedies and
Pleadings.
Chap. 1. Joinder of Legal and Equitable
Causes 5406
Chap. 2. Parties in Equitable Proceedings.... 5414
Chap. 3. Trial and Its Incidents 5420
Chap. 4. Decrees 5421
Chap. 5. Proceedings at Chambers 5436
Chap. 6. Of Extraordinary Remedies 5440
Art. 1. Mandamus, Quo Warranto and Pro-
hibition 5440
Art. 2. Ne Exeat and Quia Timet 5459
Art. 3. Bills of Peace and Interpleader 5469
Art. 4. Receivers 5475
Chap. 7. Injunctions 5490
Art. 1. WThen Granted 5490
Art. 2. Procedure in Injunction Cases 5501
TITLE 4.
Of Actions.
Chap. 1. General Principles 5506
Chap. 2. Actions, Where and How Brought
5526
Art. 1. Of the Venue 5526
Art. 2. Change of Venue 5532
Art. 3. Suits, How Commenced 5538
Sec 1. The Petition 5538
Sec. 2. Exhibits 5541
Sec. 3. Verification and Sanction of Petitions
5542
Sec. 4. Cross-Petitions 5547
Sec. 5. Dismissal of Petition 5548
Sec. 6. Certain Forms of Action Preserved
5550
Art. 4. Filing Process and Service 5551
Art. 5. Injectment 5574
Art. 6. Against Joint, and Joint and Several
Contractors 5591
Chap. 3. Making Parties Pending Action .... 5593
Chap. 4. Abatement, Restraint, Dismissal, and
Removal of Actions 5617
TITLE 5.
Of Defenses and Proceedings Pending Action.
Sec.
Chap. 1. Defenses, Pleas, Etc 5628
Art. 1. General Provisions 5628
Art. 2. Judgment by Default :>>'>:>.',
Art. 3. Particular Pleas 5683
Sec. 1. To the Jurisdiction 560:;
Sec. 2. Of Set-off and Usury 5668
Sec. 3. Failure of Consideration 5675
Sec. 4. Non Est Factum, Etc 56ri6
Chap. 2. Of Amendments 5681
Art. 1. General Principles 5681
Art. 2. Particular Cases 5694
Sec. 1. Of Amending Verdicts, Judgments
and Execution 5694
Sec. 2. Amending Official Returns 5706
Sec. 3. Amending Records 5702
Sec. 4. Of Other Amendments 5704
Chap. 3. Of Continuances 5710
TITLE 6.
Of Evidence.
Chap. 1. General Principles 5728
Chap. 2. Of Rules Governing the Admission
of Testimony 5744
Art. 1. General Rules 5744
Art. 2. Of Hearsay 5762
Art 3. Of Admissions and Confessions 5774
Art. 4. Of Parol Evidence to Affect Written
5788
Chap. 3. Of Records and other Written Evi-
dence 579 7
Art. 1. Of Records and Public Documents
5797
Art. 2. Of Private Writings 5828
Chap. 4. Of the Production of Papers 58-i7
Art. 1. Notice Produce 5837
Art. 2. Subpoena Duces Tecum 5844
Art. 3. Transcript or Examination of Books
5847
Art. 4a. Withdrawal and Substitution of
Copies of Documentary Evidence .... 5848(l)
Chap. 5. Of Oral Testimony 584U
Art. 1. Witnesses, Their Attendance and Fees
5849
Art. 2. Of the Competency of Witnesses 5856
Art. 3. Of the Examination of Witnesses
5868
Art. 4. Impeachment of Witnesses 5879
Art. 5. Public Excluded When 5885
Chap. 6. Of Interrogatories and Depositions
5886
Art. 1. Commissions, How Issued and Re-
turned 5886
Art. 2. Waiver of Commission 5903
Art. 3. Exceptions to Commission 5904
Art. 4. Depositions without Commission .... 5905
Art. 5. Evidence before Court Commissioner
5910
Art. 6. In Injunction and Like Cases 5913
Art. 7. Additional Method of Return 5923
TITLE 7.
The Verdict and Judgment.
Chap. 1. Verdict and Judgment
Art. 1. Of the Verdict and Its Reception
... 5924
... 5924
XVIII
TABLE OF CONTENTS
Sec.
Art. 2. Of Entering Judgment 5934
Art. 3. Of Effect and Lien of Judgments 5943
Art. 4. Of Confession of Judgment 5954
Art. 5. How Attached, and Herein of Motion
in Arrest of Judgment 5957
Art. 6. Of the Transfer of Judgment 596)
Art. 7. Of Dormant Judgments and Revival
Thereof 5972
TITLE 8.
Costs in Civil Cases.
Chap. 1. Of Costs in Civil Cases 5980
Art. 1. Who Liable for Costs; Compensation
of Certain Stenographic Reporters 5980
Art. 2. How Taxed and Collected 5991
Chap. 2. Fees of Officers of Court 5995
Art. 1. Fees of Clerk of Superior Court 5995
Art. 2. Fees of Sheriffs, Deputy Sheriffs, and
Bailiffs 5997
Art. 3. Compensation of Offices When No
Fees Fixed 6001
Art. 4. Fees of Justices 6002
Art. 5. Fees and Constable 6004
Art. 6. Miscellaneous Provisions 6007
Art. 7. Salaries of Justices and Fees of Con-
stables in Certain Cities and Counties .... 6012
Chap. 3. Abolition of Fee System in Certain
Counties 6017(1)
Art. 1. Counties of 200,000 or More Popula-
tion 6017(1)
Art. 2. Counties of 44,000 to 60,000 Popula-
tion and Counties of 70,000 to 150,000
Population 6017(1)
Art. 3. Counties of 60,000 to 70,000 Popula-
tion 6017(20)
TITLE 9.
Of Executions and Sales Thereunder.
Chap. 1. Of Different Kinds of Executions
6018
Art. 1. When and How Issued and Returned
6018
Art. 2. Of Fi. Fas., How Levied and Pro-
ceedings Thereon 5026
Art. 3. Levy and Sale Where Defendant Has
Not Legal Title 6037
Chap. 2. Of Forthcoming Bonds 6040
Chap. 3. Of the Stay of Executions 6044
Chap. 4. Of the Satisfaction of Executions
6047
Chap. 5. Of Title by Judicial Sale 6051
Chap. 6. Of Sales under Execution 6060
Art. 1. WThen and Where Made 6060
Art. 2. Advertisement and Judicial Sales 6062
Art. 3. Sale of Perishable Property 6068
Art. 4. Liability of Bidder at Public Sale .... 6071
Art. 5. Writ of Possession and Rights of
Purchaser 6073
TITLE 10.
New Trials.
Chap. 1. By Whom and for What Causes
Allowed 6078
Sec.
Chap. 2. Cases, When, WThere, and How
Retried 6094
TITLE 11.
Supreme Courts.
Chap. 1. The Supreme Court and Its Powers
6098
Chap. 2. Its Judges 6104
Chap. 3. Its Officers 6119
Art. 1. Generally 6119
Art. 2. The Clerk 6120
Art. 3. The Reporter 6127
Art. 4. Stenographers 6132
Art. 5. Sheriff 6135
Chap. 4. What Causes May Be Taken to the
Supreme Court 6138
Chap. 5. Of Taking Cases to Supreme Court
6140
Art. 1. Mode of Procedure 6140
Art. 2. Diminution of Record 6149
Art. 3. Bills of Exceptions When to Be
Signed 6152
Art. 4. Proceedings in Case of Death or Re-
fusal to Sign 6155
Art. 5. Service of Bills of Exception 6160
Art. 6. Supersedeas 6165
Art. 7. Duty of Clerks of Superior and City
Courts 6167
Chap. 6. In the Supreme Court 6170
Art. 1. Time of Filing Bills of Exceptions
and Time of Hearing 6170
Art. 2. Order of Circuits, Publication of Num-
ber of Cases 6173
Art. 3. Making Parties, Etc 6175
Art. 4. No Dismissals in Supreme Court 6177
Art. 5. Amendments 6188
Art. 6. Arguments 6191
Art. 7. Decisions 6197
Art. 8. Record and Costs 6209
Art. 9. Judgment and Remittitur 6213
TITLE 12.
Court of Appeals.
Chap. 1. Judges; Officers, Etc 6218(1)
RULES OF THE SUPREME COURT OF
THE STATE OF GEORGIA.
I. Attorneys 6219
II. Bills of Exceptions and Records .... 6224
III. Briefs 6230
IV. Costs 6232
V. "Court as a Whole" 6234
VI. Court by Divisions 6235.
VII. Court of Appeals 6237
VIII. Disqualification 6242
IX. Dockets and Call of Cases 6243
X. Judgments 6251
XL Mandamus 6252
XII. Minutes 6253
XIII. Office Papers 6254
XIV. Parties 6256
XV. Rehearing 6257
XVI. Remittitur : 6258
XVII. Rules-Contempt 6259
XVIII. Certiorari 6259(1)
TABLE OF CONTENTS
XIX
RULES OF THE SUPERIOR COURTS,
ESTABLISHED BY THE JUDGES IN
CONVENTION, AT ATLANTA, JULY
5, 1907.
Common-Law Rules.
Sec.
I. Appeals 6260
II. Attorneys 6261
III. Bill of Particulars 6269
IV. Claims 6270
V. Clerks 6274
VI. Consent 6278
VII. Continuances 6280
VIII. Defense 6281
IX. Dockets 6283
X. Exceptions 6285
XI. Executors and Administrators 6286
XII. Illegality 6287
XIV. Judgment 6295
XV. Justices of the Peace 6297
XVI. Juries 6298
XVII. Lost Papers 6299
XVIII. Motions 6301
XIX. Notice 6304
XX. New Trials 6306
XXI. Prochein-ami 6307
XXII. Recognizance 6308
XXIII. Sheriffs 6309
XXIV. Surveys 6312
XXV. Witnesses 6317
RULES IN EQUITY, § 6319.
Rules of the Court of Appeals of the State of
Georgia.
I. Attorneys 6325
II. Bills of Exceptions and Records .... 6332
III. Briefs 6338
IV. Costs 6340
V. Divisions and Disqualification 6342
VI. Dockets and Calendars 6343
VII. Mandanus 6348
X. Parties 6352
XI. Rehearing 6S54
XII. Remittitur 6354
XIII. Review of Supreme Court Decisions
6355
XIV. Rules-Contempt '. 6356
CONSTITUTION OF THE STATE OF
GEORGIA.
^Ratified by a Vote of the People at an Election
Held on the Fifth Day of December, 1877.
The Convention which adopted the Constitution
met on the 11th day of July, and adjourned on the
25th day of August, 1877.
PREAMBLE.
Art. 1. Bills of Rights 6357
Sec. 1. Rights of the Citizens 6357
Sec. 2. Certain Offenses Defined 6382
Sec. 3. Protection to Person and Property .... 6388
Sec. 4. Special Legislation Forbidden 6391
Sec. 5. Governmental Rights of the People .... 6393
Art. 2. Elective Franchise 6395
Sec. 1. Qualification of Voters 6395
Sec. 2. Registration 6404
Sec. 3. Voters' Privilege 6405
Sec. 4. Disqualification to Hold Office .6406
Sec.
Sec. 5. Sale of Liquors, When Forbidden .... 6408
Sec. 6. Returns of Elections 6409
Art. 3. Legislative Department 6410
Sec. 1. Legislative Power, Where Vested .... 6410
Sec. 2. Senatorial Districts 6411
Sec. 3. County Representation 6413
Sec. 4. The General Assembly 6415
Sec. 5. The Senate 6422
Sec. 6. The House of Representatives 6427
Sec. 7. Enactment of Laws 6430
Sec. 8. Officers of the General Assembly .... 6453
Sec. 9. Pay of Members 6454
Sec. 10. Eiection by General Assembly 6455
Sec. 11. MarriedWoman's Property 6456
Sec. 12. Insurance Companies 6457
Art. 4. Power of the General Assembly Over
Taxation, Etc 6462
Sec. 1. Taxation 6462
Sec. 2. Regulation 6463
Art. 5. Executive Department 6470
Sec. 1. Governor 6470
Sec. 2. Other Executive Officers 6489
Sec. 3. Seal of State 6496
Art. 6. Judiciary 6497
Sec. 1. Courts 6497
Sec. 2. Supreme Court, and Court of Ap-
peals 6498
Sec. 3. Superior Courts 6507
Sec. 4. Jurisdiction of Superior Courts 6510
Sec. 5. Judges of Superior and City Courts
6519
Sec. 6. Court of Ordinary 6520
Sec. 7. Justices of the Peace 6523
Sec. 8. Notaries Public 6526
Sec. 9. Uniformity of Courts 6527
Sec. 10. Attorney-General 6528
Sec. 11. Solicitor-General 6530
Sec. 12. Election of Judge, Etc., (Repealed)
6532
Sec. 13. Judicial Salaries 6533
Sec. 14. Qualification of Judges, Etc., 6535
Sec. 15. Divorce 6536
Sec. 16. Venue 6538
Sec. 17. Change of Venue 6544
Sec. 18. Jury Trials 6545
Sec. 19. County Commissioners 6548
Sec. 20. What Courts May Be Abolished
6549
Sec. 21. Supreme Court Costs 6550
Art. 7. Finance, Taxation and Public Debt .... 6551
Sec. 1. Power of Taxation 6551
Sec. 2. Taxation and Exemptions 655^
Sec. 3. State Debt 6558
Sec. 4. Debt, How Contracted 6559
Sec. 5. State Aid 6560
Sec. 6. Purposes of Taxation by Counties and
Cities 6561
Sec. 7. Limitation on Municipal Debts 6563
Sec. 8. Assumption of Debt 6565
Sec. 9. Public Money 6566
Sec. 10. City Debts 6567
Sec. 11. Void Bonds 6568
Sec. 12. Public Debt not to Be Increased .... 6569
Sec. 13. Public Property Pledged for States
Debt 6570
Sec. 14. Sinking Fund 6571
Sec. 15. Reports 6572
Sec. 16. Donations 6573
Sec. 17. Public Printing 6575
•xx
TABLE OF CONTENTS
Sec.
Art. 8. Education 6576
Sec. 1. Common Schools .'... 6576
Sec. 2. School Commissioner 6577
Sec. 3. School Fund 6578
Sec. 4. Educational Tax 657J
Sec. 5. Local System 6580
Sec. 6. University of Georgia 6581
Art. 9. Homestead and Exemptions 6582
Sec. 1. Homestead 6582
Sec. 2. Exemption 6583
Sec. 3. Waiver of Homestead 6584
Sec. 4. Homestead Set Apart, How 6585
Sec. 5. Short Homestead Waived 6586
Sec. 6. Homestead Supplemented 6887
Sec. 7. Former Homestead Preserved 6588
Sec. 8. Prior Rights to Exemption Preserved
. 6589
Sec. 9. Sale of Homestead 6590
Art. 10. Militia 6591
Sec. 1. Militia and Volunteers 6591
Art. 11. Counties and County Officers 6594
Sec. 1. Counties 6594
Sec. 2. County Officers 6599
Sec. 3. Uniformity in County Officers 6600
Sec. 4. State Capital 6601
Art. 12. The Laws of General Operation in
Force in This State 6602
Sec. 1. Laws of Force 6602
Art. 13. Amendment to the Constitution 6610
Sec. 1. Constitution, How Amended 6610
Sec. 2. Constitution, How Ratified 6612
Ordinances of Constitutional Convention,
§§ 6614, 6618.
Governors' Proclamation, § 6619.
CONSTITUTION OF THE UNITED STATES'
Art. 1. Legislative Department 662 »
Art. 2. Executive Department 6654
Art. 3. Judicial Department 6666
Art. 4. Relative Rights of States 6672
Art. 5. Amendments, How made 6679
Art 6. Miscellaneous Provisions 6680
Art. 7. Ratification 6683
Art. 8. Amendments 6684
PENAL CODE.
Preliminary' Provisions 1
Division 1.
Definition of a Crime; Persons Capable of Com-
mitting; Persons Punishable.
Art. 1. Definition of a Crime 31
Art. 2. Infants, Lunatics, Idiots and Persons
Counseling Them 33
Art. 3. Married Women Acting Under
Threats 38
Art. 4. Voluntary Drunkenness 39
Art. 5. Misfortune or Accident 40
Art. 6. Persons Acting Under Fear 41
Division, 2.
Principles and Accessories in Crime.
Art. 1. Principals in First and Second Degree
42
Art. 2. Accessories 44
Division 3.
Crimes Against State and People.
Sec.
Art. 1. Crimes Against the State 50
Art. 2. Treason 51
Art. 3. Insurrection and Attempt to Incite
Insurrection 55
Division 4.
Crimes Against the Person
Art. 1. Homicide
Art. 2. Concealing Child's Death, Advising
to Kill Infants. Abortion, and Foeticide
59
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.
3. Mayhem
4. Rape
5. Assault, and Assault and Battery ....
6. False Imprisonment
7. Kidnapping and Industrial Home
Children
8. Stabbing
9-. Shooting at Another
9A. Shooting at Dwelling Houses .... 11
9B. Eavesdropper or "Peeping Tom"
11
10 Abandonment of Child
11. Criminal Negligence
12. Blackmail and Threatening Letters
Art. 13. Conspiracy
Art. 14. Interfering with Apprentices, Ser-
vants, Croppers, Farm Laborers, and
Employees
Art. 15. Interference with Employees
Art. 16 Employers Must Provide Seats for
Females
Art. 17. Transferring Claim to Defeat Ex-
emption of Wages from Garnishment ....
93
95
106
..109
114
115
5(1)
5(2)
116
117
..118
120
121
126
13ft
131
Division 5.
Crimes Against the Habitations of Persons
Art. 1. Arson 132
Art. 2. Burglary 146
Division 6.
Crimes Relative to Property.
Art. 1. Robbery 148.
Art. 2. Larceny 151
Art. 2A. Injury to or Destruction of Gas
pipes, etc., and Division and Theft of
Gas 183(2)
Art. 3. Embezzlement and Fraudulent Con-
versions 184
Art. 4. The State Property or Money 195
Art. 5. Banks and Bank Officers 211(1}
Art. 6. Unlawful Mining 212
Art. 8. Trespass 216
Art. 9. Using Horse and Skinning Cattle
Without Owner's Consent 222
Art. 10. Disposing of or Purchasing Drifted
Timber, Cutting Timber or Tan Bark .... 221
Art. 10A. Floating Sawdust into Streams .... 226(1}
Art. 11. Firing the Woods 227
Art. 12. Tools Used for Commission of Crime
'. 230(1)
Division 7.
Forgery, Counterfeiting, and Unlawful Currency.
Art. 1. Forgery, 'Counterfeiting, and Unlaw-
ful, Currency 231
TABLE OF CONTENTS
XXI
Division 8.
Crimes Against the Public Justice and Official
Duty.
Sec.
Art. 1. Perjury, False Swearing and Subor-
nation of Perjury and False Swearing .... 259
Art. 2. Bribery, Influencing Governor or
Head of Department 270
Art. 3. Misconduct by Officers and Persons
Concerned in the Administration of
Justice 273
Art. 4. Personating in Bail 310
Art. 5. Obstructing Legal Process, and Sen-
tence or Order of Court 311
Art. 6. Rescue and Escapes 313
Art 7. Lobbing 324
Art. 8. Receiving, Harboring, or Concealing
Guilty Persons, and Compounding Crimes
and Penalties 326
Art. 9. Barratry and Embracery 330
Art. 10 Mutiny and Instigating Mutiny 334
Art. 11. Appointment of Peace Officers and.
Detectives 337
Art. 12. Interfering with Board of Public
Welfare 339(1)
Division 9.
Crimes Against the Public Peace and. Tran-
quillity.
Art. 1. Libel and Defamation of Virtuous
Female 340
Art. 1A. Publication of Name of Assaulted
Female 343(1;
Art. 2. Forcible Entry and Forcible Detainer
344
Art. 3. Carrying Concealed Weapons; Carry-
ing Weapons to Courts, Election
Grounds, Etc., Pointing Weapons at
Another; and Furnishing Weapons to
Minors 347
Art. 4. Preserving of Orders at Parades 351
Art. 5. Duelling 354
Art. 6. Unlawful, Assemblies, Riots, and
Affrays '. 359
Art. 7. Mob Violence 362
Art. 8. Other Offenses Against Public Peace
366
Division 10.
Offenses Against Public Morality and Decency,
Public Health, Public Safety and Conven-
ience, Public Trade, Public Policy, Suffrage,
Public Police.
Art. 1. Bigamy 367
Art. 2. Incest 371
Art. 3. Adultery and Fornication 372
Art. 4. Sodomy and Bestiality 373
Art. 5. Seduction 378
Art. 6. Keeping Open Trippling Flouses on
the Sabbath — Lewdness, Lewd Houses,
Disorderly Houses and Opium Joints
381
Art. 6A. Soliciting for Purpose of Prostitu-
tion 384(1)
Art. 7. Obscene Pictures, and Abusive and
Vulgar Language 385
Art. 8. Gaming-Houses, Gaming-Tables, and
Gambling 389
Sec.
Art. 9. Lotteries, Gift Enterprises, Dealing
in Futures, and Trading-Stamps 397
Art. 10. Cock-Fighting 405
Art. 11. Minors Not to Play Billiards, Pool,
or Ten-Pins, Without Consent of Par-
ents, Etc., Regulation of Billiard Rooms
406
Art. 12. Human Bodies, Embalming Illegally,
Arbitrary Burial Regulations, and Ceme-
teries 407
Art. 13. Disturbing Divine Service, or Socie-
ties, Violating the Sabbath, Intruding on
Camp-Grounds, Disturbing S c h o ol s ,
Dance-Halls 412
Art. 14. Manufacture and Sale of Intoxicant,
and Regulations as to Liquors and Sub-
stitutes for Intoxicants 426
Art. 14A. Manufacturing, Selling, Keeping,
Etc., of Prohibited Liquors and Bever-
ages 448(2)
Art. 14B. Advertising of, or Soliciting and
Taking Orders for Intoxicating Liquors
448(26)
Art. 14C. Record of Liquors Deliveries .... 448(30)
Art. 14D. Subsequent Prohibitions and Reg-
ulations of Intoxicating Liquors 448(36)
Art. 15. Vagrants 449
Art. 16. Adulterated or Misbranded Foods,
Drugs, Liquors, Etc 451
Art. 16A. Sanitary and Statistical Regula-
tions Relating to Food 453(l)
Art. 17. Sale of Poisons, Opium, Morphine,
Illegal Compounding of Drugs 454
Art. 17A. Deceitful Sale of Paints or Oils....
461(1)
Art. 17B. Sales of Securities 461(8)
Art. 17C. Illegal Sale of Corporate Stock
461(15)
Art. 18. Illegal Practice of Professions,
Carrying on Business, and Medical
College Diplomas 462
Art. 19. Importation and Purchase of Sec-
ond-hand Clothing, Infested Plants,
Mexican Boll-Weevil, Honey Bees, Etc.
477
Art. 20. Putting Carcasses of Animals in
Streams, and Eailing to Bury Dead
Animals and Decaying Matter 484
Art. 21. Turpentine Boxes, and Drainage
Canals 488
Art. 22. Furnishing Cigarettes to Minors .... 491
Art. 23. Contagious Diseases and Quarantine,
Police and Sanitary Regulations 492
Aft. 23A. Vital Statistics : 503(8)
Art/ 24. The Public Safety 504
Art. 25. Public Convenience 529
Art. 26 Regulations as to Farm Products .... 549
Art 26A. Cotton Standards 558(1)
Art. 27. Sale and Use of Oleomargarine 559
Art. 28. Formulas for Composting Fertilizers
561
Art. 29. Weights to be Stamped on Sacks of
Flour, Meal Grits, and Cotton-Seed-
Hulls 562
Art. 30. Turnpikes, Bridges, and Toll 567
Art. 31. Private Insane Asylums, Wrongful
Imprisonment of Sane Persons, and
Aiding Escapes 574
XXII
' TABLE OF CONTENTS
Sec-
Art. 3lA. Abandoning Patient or Trespassing
on State Sanitarium Grounds 576(1)
Art. 32. Driving Diseased Cattle, Grazing
Stock; Diseased Stock, and Quarantine
Regulations 577
Art. 33. Impounding Animals, Breaking a
Pound, and Estrays 584
Art. 33A. Marks and Brands on Live Stock
585(1)
Art. 34. Game 594(l)
Art. 34^. Hunting or Fishing on Game
Preserves 594(27)
Art. 35. Terrapins, Turtles, Fishing, and
Oysters 595
Art. 36. Duties of Officers of Banks and
Other Corporations 1 622
Art. 37. Foreign Building and Loan Associa-
tions, Insurance Companies, Investment
Companies, and Fraternal Beneficiary
Orders 624
Art. 38. Peddling Without a License 631
Art. 39. Emigrant Agents 632
Art. 40. Receipts by Common Carriers and
Innkeepers, Traffic in Tickets, and Sales
of Patient Rights 633
Art. 41. Inspection of Oil, and Sale of Allu-
minating Fluids 637
Art. 42. Inspection of Fertilizers, Flour,
Grain, Cotton-Seed-Meal, Timber and
Naval Stores 643
Art. 42A. Insecticides and Fungicides 656(2)
Art. 43. Suffrage, Campaign Expenses, Cam-
paign Funds, and Political Mass Meet-
ings 657
Art. 44. Marrying and Issuing License to
Marry, Illegally 677
Art. 45. White and Colored Convicts Not to
Be Confined or Chained Together 679
Art. 46. Rogues and Vagabonds, and Nui-
sances 680
Art. 47. Failure to Give Bastardy Borid, or
Bond to Support Pauper 682
Art. 48. Boats and Crews, Discharging Bal-
last in Harbor, Pilots and Seamen 684
Art 49. Text Books in Schools 698(1)
Art. 50. Native Gold 699
Art. 51. Interest Illegally Taken 700
Art. 52. Bonded Public Warehousemen 701
Art 52A. Cotton Warehousemen 701(1)
Art 53. Certified Public Accountants 702
Art. 54. Unlawful Uses of Flag or Emblem
of United States 702(1)
Art. 55. Fraud in Land Registration 702(5)
Art 56. Department of Commerce and Labor
702(6)
Art. 57. Compulsory School Attendance .... 702(7)
Art. 58. Placing Out Children 702(9)
Art. 59. Explosive 702(10)
Art. 60. Ethyl Alcohol 702(13)
Art. 61. Employers 702(14)
Art. 62. Restricted Residence Districts .... 702(16)
Art. 63. Credit Unions 702(17)
Division 11.
Offenses Committed by Cheats and Swindlers.
Art. 1. Deceitful Means or Artful Practices
703
Art. lA. False or Fraudulent Insurance
Claims 719(1)
Sec.
Art. 2. Wrongful Sale of Mortgaged Prop-
erty 720
Art. 3. Sale or Dispositions of Property Un-
der Lien 721
Art. 4. Selling or Encumbering Personal
Property Held Under Conditional Pur-
chase 722
Art. 5. Fraudulent Enteries and Practice in
Speed Contests 724
Art. 6. Fraud by a Limited Partner 727
Art. 7. Illegally Measuring Timber 728
Art. 7A. Deceitful Sale of Fruit and Nut
Trees 728(1)
Art. 8. Landlords and Croppers 729
Art. 9. Overcharges by Railroad Officials and
False Billing, Etc., by Carriers 730
Art. 10. Wrecking a Railroad Company 734
Art. 11. Declaring Unearned Dividends 740
Art. 12. Competitions in Procuring Public
Work 741
Division 12.
Fraudulent or Malicious Mischief.
Art. 1. Destroying Books or Papers, Land-
marks, and Buoys, Etc 742
Art. 2. Burning Fences or Crops and Set-
ting Fire to Woods 745
Art 3. Injuries to Bridges and Dams 750
Art. 4. Killing or Maiming Cattle, and
Cruelty to Animals .,.-... 752
Art. 5. Putting Children to Dangerous or
Improper Vocations 756
Art. 6. Injuring Turnpike and Navigation
Fixtures, Firing or Sinking Vessels and
Other Acts of Malicious Mischief 760
Art. 7. Theatening to Burn Property of An-
other 782
Art. 8. Interfering with Property of Electrical
Companies 783
Art. 9. Injuring House with Explosive Sub-
stance 784
CRIMINAL COURTS
Justice of the Peace and Mayors.
Art. 1. Their Jurisdiction 788
COUNTY COURTS.
Art. 1. Jurisdiction of the Court 790(2)
Art. 2. Exercise of Jurisdiction 790(10)
Art. 3. Law Applicable 790(13)
Art. 4. Solicitors 790(14)
Art. 5. Mode of Trial 790(16)
Art. 6. Felonies 790(17)
Art. 7. Proceedings when an Indictment
is Demanded 790(18)
Art. 8. Proceedings When There Is Non
Indictment 790(20)
Art. 9. When a Jury Is Demanded, and the
Trial '. 790(22)
Art. 10. Offenses Above Jurisdiction and
Transferred Cases 790(28)
Art. 11. Certiorari ..: 790(30)
Art. 12. Costs, Fines, Pay of Jurors, and
Forfeitures 790(36)
CITY COURTS.
Art. 1. For the Trial of Misdemeanors .... 790(44)
Art. 2. Prosecuting Officers 790(48)
TABLE OF CONTENTS
XXIII
Sec.
Art. 3. Rules of Practice 790(49)
Art. 4. Accusation and Proceeding to Trial
790(5:0
Art. 5. The Jury 790(54)
Art. 6. Costs, Fines and Forfeitures 790(50)
Art. 7. New Trials and Writs of Error .... 790(57)
THE SUPERIOR COURT — ITS OFFI-
CERS AND JURIES.
Art. 1. Jurisdiction of the Court, and Au-
thority of the Judges 791
Art. 2. Sessions and Adjournments 793
Art. 3. The Clerks 797
Art. 4. Solicitors-General 798
Art. 5. Special Criminal Bailiffs 808
Art. 6. Stenographic Reporter 810
Art. 7. The Grand Jury 81]
Art. 8. Special Juries 852
Art. 9. The Petit Jury 854
Art. 10. Special Provisions as to Juries 806
Art. 11. Children's Courts Established as
Branches of the Superior Court; Their
Jurisdiction, Etc., — Juvenile Courts
885
Art. 12. Attorney-General 901
PROCEEDINGS TO COMMITMENTS
INCLUSIVE.
Art. 1. Proceedings Prior to Arrest 902
Art. 2. Arrest 911
Art. 3. Courts of Inquiry, and the Proceed-
- ings Therein 931
Art. 4. Professional Bondsmen 933(1)
INDICTMENT AND PRESENTMENT.
Art. 1. Form of Indictment 934
Art. 2. When Two Returns of "No Bill" Are
a Bar 955
Art. 3. Special Presentments Treated as
Indictments 956
Art. 4. Accusations in Misdemeanor Cases
956(1)
ARREST AND BAIL AFTER INDICTMENT,
AND PROCESS AGAINST CORPORA-
TIONS.
Art. 1. Bench-Warrant 957
Art. 2. Bail, Surrender of Principal, and
Forfeiture of Bond 958
Art. 3. Process Against Corporations, and
Mode of Trial 963
CHANGE OF VENUE
Art. 1. When and How Venue May Be
Changed 964
FROM THE CALL OF THE DOCKET TO
SENTENCE.
Art. 1. Call of the Docket 967
Art. 2. Arraignment 968
Art. 3. Demurrers and Special Pleas to Be
in Writing 975
Art. 4. Pleas of Insanity, and Misnomer 976
Art. 5. Exceptions as to Form and Motions
in Arrest 980
Art. 6. Settlement of Cases 981
Art. 7. Nolle Prosequi 982
Art. 8. Demand for Trial 983
Art. 9. Announcement 984
Sec.
Art. 10. Continuances 985
Art. 11. Trial of Joint Offender 995
Art. 12. Impaneling the Jury 996
Art. 13. Oaths of Petit Jury and Witnesses
1005
Art. 14. Testimony to Be Reported 1007
Art. 15. Evidence 1008
Art. 16. Rules Governing the Admission of
Testimony 1019
Art. 17. Of Hearsay 1023
Art. 18. Of Admissions and Confessions .... 1028
Art. 19. Prisoner's Statement 1036
Art. 20. Competency of Witnesses 1037
Art. 21. Examination of Witnesses 1043
Art. 22. Impeachment of Witnesses 1050
Art. 23. Argument of Counsel 1055
Art. 24. Charge of the Court 1056
Art. 25. The Verdict 1059
Art. 26. The Sentence 1062
NEW TRIALS, AND THE SUPREME
COURT.
Art. 1. When New Trial Will, and Will Not
Be Granted 1082
Art. 2. The Motion and Proceedings Thereon
1090
Art. 3. The Supreme Court 1095
COSTS, FINES, AND FORFEITURE
FUND.
Art. 1. Costs 1105
Art. 2. Fines 1111
Art. 3. Fine and forfeiture Fund 1112
SALARIES AND FEES OF OFFICERS,
WITNESSES, AND JURORS.
Art. 1. Illegal Fees 1125
Art. 2. Solicitor-General 1126
Art. 3. Stenographic Reporter 1131
Art. 4. Special Criminal Bailiffs 1132
Art. 5. Clerks of the Superior Courts 1133
Art. 6. Sheriffs 1134
Art. 7. Jailors, Deputy Jailors, and Guards
1135
Art. 8. Jury Commissioners and Clerks 1138
Art. 9. Justice of the Peace 1139
Art. 10. Constables 1140
Art. 11. Coroners 1141
Art. 12. Ordinaries 1142
Art. 13. Witnesses from Other Counties, and
When Venue is Charged 1143
COUNTY JAILS.
Art. 1. Duties of Jailor 1149
Art. 2. Jails, Control of, in Certain Counties
-. 1159
MISDEMEANOR CONVICTS.
Art 1. How Disposed of 1166
Art. 2. Whipping-Bosses 11T5
Art. 3. Time Shortened for Good Behavior .... 1179
Art. 4. Convicts Produced as Witnesses 1180
THE PENITENTIARY.
Art. 1. Prison Commission, Control of Con-
victs, Duties of Officers, Etc 1185
Art. 2. Board of Pardons 1222
Art. 3. Miscellaneous Provisions 1229
XXIV
TABLE OF CONTENTS
GEORGIA STATE REFORMATORY.
Sec.
Art. 1. Established and How Managed 1237
GEORGIA TRAINING SCHOOL FOR
GIRLS.
Art. 1. Establishment and Management .... 1259(2)
INDUSTRIAL FARMS.
Art. 1. How Established, the Purpose, and
Their Management 1260
MUNICIPAL FARMS OR OTHER PLACES
OF CONFINEMENT; ESTABLISH- .
MENT AND CONTROL.
Art. 1. Establishment Authorized 1280
SPECIAL QUASI CRIMINAL PROCEED-
INGS.
Habeas Corpus.
Art. 1. Proceedings in Applications for Habeas
Corpus 1290
OF WARRANTS FOR GOOD BEHAVIOR,
AND TO KEEP THE PEACE.
Art. 1. The Warrant and Proceedings There-
on 1317
OF SEARCH WARRANTS AND PROCEED-
INGS THEREON.
Art. 1. The Warrant and Proceedings 1325
OF PROCEEDINGS IN BASTARDY.
Art. 1. Proceedings Against the Mother,
Bond for Maintenance of the Child, Etc.
1330
CORONERS INQUESTS.
Art. 1. When Inquests Shall Be Held, and
Proceedings 1337
FUGITIVES FROM JUSTICE,
Art. 1. Arrest Within This State, and Pro-
ceedings 1352
Art. 2. Rules for Granting a Requisition by
the Governor 1357
Art. 3. Expense for Bringing Back Fugitives
1359(1)
PUBLIC DEFENSE.
Chap. 1. Volunteer Forces 1467(l)
Art. 1. Staff and Organization 1467(1)
Sec.
Sec. 1. Staff Officers 1467(1)
Sec. 2. Militia and Organization; Unorganized
Militia 1467(5)
Art. 2. The National Guard of Georgia .... 1467(16)
Art. 3. Officers, Rank, Eligibility, Duties,
Etc 1467(21)
Art. 4. Enlistments 1467(38)
Chap. 2. Drills, Instructions and Inspection
1467(44)
Chap. 3. Right of Way for Troops 1467(50)
Chap. 4. Military Fund, Expenses and Com-
pensation 1467(51)
Chap. 5. Uniforms 1467(56)
Chap. 6. Flags 1467(60)
Chap. 7. Arms and Ammunition 1467(64)
Chap. 8. Court-Martial 1467(70)
Chap. 9. Exemptions 1467(77)
Chap. 10. Insurrection, Riots, and Mob Vio-
lence 1467(79)
Chap. 11. Miscellaneous Provisions 1467(88)
Chap. 13. National Defense Act 1467(102)
Chap. 13. National Defense Act 1467(102)
Chap. 14. Home Guard or State Constabulary
1467(103)
PENSIONS, AND CONFEDERATE
SOLDIERS' HOME.
Chap. 1. Pensions and Confederate Soldiers'
Homes 1468
Art. 1. Commissioner of Pensions 1468
Art. lA. Pensions of Ex-Confederate Soldiers
and Widows 1482(1)
Art. 2. Pensions for Maimed and Infirm
Confederate Soliders 1483
Art. 3. Pensions to Aged and Infirm Con-
federate Soldiers 1485
Art. 4. Pensions for Widows of Georgia Con-
federate Soldiers 1491
Art. 5. Miscellaneous Provisions 1502
Chap. 2. Confederate Soldiers' Home of
Georgia 1515
PENSIONS OF MEMBERS OF FIRE
DEPARTMENTS.
In Cities of More Than 150,000 Population
1519(i)
Pensions of Members of Police Departments
1519(23)
APPENDIX.
Non-Amendatory Acts 1(a)
Amendatory or Repealing Acts 9
Proposed Constitutional Amendments 20
Table of Non -Amendatory Acts
SHOWING IN WHAT SECTIONS OF THE CODE OF 1926 THE GENERAL ACTS OF
1910 TO THE EXTRAORDINARY SESSION OF 1926, INCLUSIVE, NOT
AMENDATORY OF THE CODE OF 1910, ARE EMBODIED.
Acts 1910 Code 1926
page section
22 1061(1)-1061(3),
1077(1), P. C. 1482(1)-
1482(9)
74 1398(2)
80 P. C. 1287(1)
81 P. C. 1124(1)
82 1779(1)-1779(3)
85 2096(1)
87 6065(1)
88, 89 P. C. 503(1)
90, 95 P. C. 528(2)
91 177O(l)-1770(14)
98 2821(10)-2821(14)
100 467(5), 467(9)
103 5321(1), 5321(2)
106 2823(3)-2823(8)
109, 112 2584(1)
112 627(1)-627(11),
P. C. 528(12)-528(14)
116 913(1),
P. C. 666(1)
118 . . P. C. 1124(2), 1124(3)
121 4355(1), 1217(1)-
1217(7)
125 2081-2081(3)
130 1676(14)-1676(17),
P. C. 503(2), 503(3)
133 P. C. 396(1), 396(2)
134 P. C. 348(l)-348(4).
135 P. C. 230(2)
137 .. P. C. 115(1), 703(1)-
703(3)
1287 178(1)
79 646(l)-646(3)
Acts 1911 Code 1926
page section
41 2082(1),
2082, 2082(5), 2082(6)
94 P. C. 698(1)
108 439(37j-439(4l)
P. C. 490(1)
108 439(37)-439(41)
133 2158(31)-2158(37)
137 .. 2158(8^)-2158(15^),
P. C. 594(16)-594(25)
149 .. P. C. 792(1), 1090(1),
1101(1)
151 .... P. C. 325(l)-325(5)
163 4236(1)
169 265(1)
172 1778(1)-1778(5)
179 .... P. C. 343(1), 343(2)
180, 181 5337(1),
P. C. 448(1)
182 P. C. 556(1)
197 P. C. 1137(1)
200, 201 . 1676(18), 1676(19),
5989(1), P. C. 503(4)
Acts 1912 Code 1926
page section
25 2082(5)-2082(9)
32, 33 P. C. 1482(1)
33 P. C. 1482(9)
103 704(1)
104 4994(1)
105 . ... P. C. 409(1), 409(2)
107 2823(9)
109 .. P. C. 309(1), 6011(1)-
6011(3)
111 1778(6), 1778(7),
P. C. 643(1)
113, 115 2158(15^),
P. C. 594(16), 594(17)
119 2387(1)-2387(13),
2417(l)-2442(7), 2448(1)-
2448(4), 2455(1), 2513(1),
2448(4), 2455(1), 2513(1),
2514(1), 2514(2), 2557(l),
2877(l)-2877(3), P. C.
627(l)-627(4), 626(1)
144, 145 3436(1)
149 1809(1)-1809(4),
1809(6)-1809(8), P. C.
642(2), 642(3)
153 4294(196), (197)
P. C. 461(5)
155 1846(2)-1846(4)
157 P. C. 540(1)
158 627(11)
159 2562(1), 2562(2),
P. C. 627(7)
161 863(1), 1077(2)
182 1391(1)
Acts 1913 Code 1926
page section
28 2094(1)
32, 34 2584(1)
51, 52 2571(1)
79 757(1), 757(2),
4901-4901(6)
81 855(8)
82 2158(32)-2158(37)
85 439(42), 439(44),
439(48)
87 P. C. 1259(2)-
1259(11)
91, 92 1041(6)-1041(16)
98 2514(3)-2514(6),
P. C. 627(5)
100 2823(1)
101 1697(1)-1697(14)
110 1809(5), 3022(1)
112 P. C. 1081(1)-
1081(4)
114, 115 2677(5),
P. C. 526(2)
122 999(1)
Acts 1913 Code 1926
page section
115 47(l)-47(5)
123 1116(6)-1116(13),
1116(18)-1116(22)
1116(18)-1116(22)
135 102(1)-102(4)
Acts 1914 Code 1926
page section
12 2084(1)
13 2096(2)
14 2082(18)
21 2082(5)
48 848(1)
75 1754(28)-1754(40),
P. C. 476(2), 503(5)
87 .. P. C. 1174(1)-1174(3)
92 5246(1)-5246(10)
97, 98 2823(9)
98 3322(1)
99 2877(4)-2877(39),
P. C. 630(1)
123 .. P. C. 1359(1)-1359(3)
124, 125 .. 1676(1)-1676(13)
134 2119(1), 2119(2),
P. C. 453(1)
135, 136, 137 2442(1)
137 189(1)-189(3)
142 855(l)-855(7)
144 2585(1) -2585 (3)
146 4901(1) -4901 (5)
147 868(1)
148 2119(3)-2119(8),
P. C. 453(2)-453(4)
152 1770(16)-1770(20)
157 1681(1)-1681(26),
P. C. 503(8), 503(9)
1247 213(1)
Acts 1915 Code 192o
page section
32 P. C. 956(1)
34 P. C. 1124(1)
35 P. C. 900(l)-900(40)
49 4997(1)
51 P. C. 1482(1)
55 1191(1)-1191(3)
Acts 1915, Ex. Sess. Code 1926
page section
71 P. C. 621(19)-
621(23)
77 .. P. C. 621(19)-448(25)
105 P. C. 448(26)-
448(29)
107 1770(21)-1770(25),
1770(27)-1770(42), 1770-
(44)-1770(48), P. C.
528(3)-528(5)
XXVI
NON-AMENDATORY ACTS
Acts 1916 Code 1926
page section
44 2597(l)-2597(5)
48 3438(1), 3438(2)
51 P. C. 371(1)
56 6218(1)-6218(3)
58 P. C. 900(41)-
900(43)
77, 79 . . . 1717(1)-1717(4),
P. C. 411(1)
83 1741(18)-1741(26),
P. C. 473(1)
94 389(l)-389(5)
111 1711(2)-1711(6)
113 2158(38)-2158(40)
P. C. 594(24)
114 . . P. C. 594(18)-594(21)
126 .. P. C. 845(l)-845(4)
128 2477(1)
129 2561(1;-2561(3)
134 .. P. C. 448(30)-448(35)
137 625(l)-625(6)
138, 139 444(3)-444(7)
142 6137(1), 6137(2)
156 1852(1)
157 P. C. 1104(1),
1104(2)
158 P. C. 1467(1)-
1467(102)
1046 15(1)
Acts 1917 Code 1926
page section
77 2141(11)-2141(17)
81 282l(l)-2821(6)
84 2821(7)-2821(9)
88 2158(32)
91 P. C. 1467(103)-
1467(105)
99 6218(4)
100 439(42)-439(47)
102 2877(41)-2877(43)
106 1676(4)
107 5902(1)
108 4215(1)-4215(118)
P. C. 702(5)
177 5337(2)- 5337(9)
183 138(1)-138(7)
189 P. C. 1506(1),
1506(2)
191 1562(2)
197 1245(1)-1245(6)
199 578(l)-578(3)
203 .. P. C. 702(l)-702(4)
Acts 1917, Ex. Sess. Code 1926
page section
7 P. C. 448(36)-
448(57)
Acts 1918 Code 1926
page section
4 1021(1)
P. C. 583(1)
34 2082(4), 2082(5),
36 2141(1), 2141(2)
120 2409(1)
133 5093(1)
Acts 1918 Code 1926
page section
137, 138 ... 2158(41)-
2158(48)
142 6218(7), 6126(1)
143 1562(1)-1562(8)
147 439(32)
147, 149 439(34)-
439(39)
153 439(36)
154 120(1)-120(3)
155 2158(68)-2158(76)
158, 159 2141(8)-
2141(10)
160 3765(1)
161 P. C. 1259(4)
165 .. P. C. 845(5)-845(8)
168 5933(l)-5933(3)
171 1896(1)-1896(3)
172 P. C. 476(5)
173, 187 . . 1697(1)-1697(14)
A. E.
198 4804(l)-4804(7)
208 1811(1)
209 4204(1), 250(1)-
250(2)
211 2599(l)-2599(4)
212 . . P. C. 518(1), 519(1)
212 2677(l)-2677(4)
227 6218(8), 6137(1)
231 1116(17)
232, 233 .. 1116(1)-1116(5)
234 3777(l)-3777(9)
237 1623(1)
247 1879(2)-1879(20)
250 P. C. 701(1)-701(5)
253, 254 . . 1336(1)-1336(4)
255 1650(6), 1650(7)
256 2082(8)-2082(l2),
P. C. 503(6)
258 P. C. 578(1)
259 P. C. 94(1), 94(2)
261 . . P. C. 728(l)-728(3)
262 . . P. C. 594(27), 72l(l)-
721(4)
264 P. C. 528(7)
265 P. C. 528(8;
528(9), C. C. 303(1)
267 .. P. C. 384(l)-384(3)
268 . . 2677(6), P. C. 528(1)
269 675(1), 675(2)
270 P. C. 608(l)-608(5)
272 . . P. C. 169(1), 169(2)
274 .. P. C. 576(1), 576(2)
275 P. C. 503(7)
275 1650(1)-1650(4),
1650(5)
277 1650(5)
Acts 1919 Code 1926
page section
32 2082(3)-2082(5)
58, 60 . . 1041(12)-1041(14)
98 4994(1)
123 ..P. C. 448(58)-448062)
125 1754(41)-1754(65)
P. C. 476(1)
133 257(1), 257(2)
Acts 1919 Code 192(
page section
135 2366(l)-2366(47),
2366(53)-2366(69),
2366(71), 2366(83)
2366(113), 2366(138)-
2366(194), 2366(196)
212 P. C. 211(1)-211(38)
222 2158(77)-2158(90)
228 2158(91)-2158(101)
234, 235 1562(2)
239 .. P. C. 594(28)-594(33)
242, 243 828(l)-828(3),
828(5)-828(8)
242, 247 . . 828(14)-828(16),
828(l8)-828(22), 828(31)-
828(33)
253 1562(20)-1562(26)
Ex. Sess. 256 1770(26)
260 467(1), 467(2)
267-268 P. C. 1482(1)
269 1362(19)-1362(26)
272 71(1)
273, 274 .. 1681(3)-1681(23)
275 >675(l)-675(2)
277 5989(1)
278 2158(37)
280 6218(8)
283 2387(7)
285 6137(1)
286 1116(18)
P. C. 702(7), 702(8)
288 1551(1), 1551(95)-
1551(193), P. C. 698(1),
698(2)
288, 289 . . 155l(l)-1551(5),
1551(7)-1551(69)
367 1398(4)-1398(8>
369 201(1)
377 1614(1)-1614(8)
.383 217(1), 227(1),
227(2)
384 3777(l)-3777(2)
386 .. P. C. 115(2)-115(5)
387 P. C. 1060(1)
388 P. C. 702(14)
Acts 1920 Code 192(
page section
17 1116(14)
83 4986(1), P. C.
1007(1)
102 2366(3), 2366(14),
2366(18), 2366(20), 2366-
(23), 2366(26), 2366(38)
2366(40), 2366(80), 2366-
(90), 2366(98), 2366(156),
2366(157), 2366(164,
2366(173)
109 1754(28)
110 451(2), 451(3)
111 2495(l)-2495(4)
116 4828(1)
118, 123 2158(32),
P. C. 702(6)
123 . . P. C. 1516(1)-1516(3)
125 2928(1)-2928(12)
129 1885(1), 1885(2),
P. C. 558(l)-558(3)
NON-AMENDATORY ACTS
XXVII
Code 1926
section
1754(1)-1754(27)
P. C. 471(1), 472(1),
472(2)
61(1)-61(3)
439(42)
... 2207(l)-2207(4)
.... P. C. 1259(1)
P. C. 483(2)
1-60 2141(3)-2141(7)
163 1814(l)-1814(3),
P. C. 639(1), 642(1)
167 3154(1)-3154(75),
P. C. 702(15)
208 1843(1), 1843(2),
1843(4), 1843(10), P. C.
656(2)
214 .... P. C. 1104(3)
215 1770(61)-1770(79),
P. C. 1137(2), 476(9)
225 .. P. C. 461(1)-461(7)
231 P. C. 1482(10)
1482(11;
232 .. 1551(205)-1551(207)
234 629(1)
237 1362(1)-1362(18)
242, 245 .. 695(1), 695(2)
245 4035(1), 4035(2)
249 1562(13), 1562(14)
250 .. 2928(42), 2928(55)-
2928(83), P. C. 461(8),
461(9), 461(11) 461(12)
461(14)
271 P. C. 1134(1;
272 6218(6)
273 P. C. 1214(1)
274, 275 5989(2)
277 1398(2), P. C. 790(45)
279 1562(15)-1562(18)
282 1879(1), 1879(5)
283 1398(1)
Acts 1921 Code 1926
page section
83, 84 . . 993(155), 993(160)
P. C. 476(11)
92, 94 451(1)
107, 108 .. 2597(1), 2597(2)-
2597(5)
139 2928(13)-2928(40)
154 1754(65)
156 P. C. 847(1)
159 .. 2158(109)-2158(113)
116, 167 .. 1741(1)-1741(14)
1741(17), P. C. 470(1)
177 626(1)
179 .... 1754(1), 1754(9),
1754(20)
184 4901(8), 4901(9)
185, 186 .. 439(19)-439(31),
439(34), 439(43)
189 '.. P. C. 1339(1)
194 .. 2158(123), 2158(124)
195 P. C. 1467(3)
197 .. 2158(106)-2158(108)
199, 202 .. 828(5), 828(6).
828(8), 828(28), 828(30)
208 2471(1)
209 P. C. 1138(1)
Acts 1921 Code 1926
page section
210 1885(3)-1885(8)
212 444(1), 444(2)
215 1711(1)
216 4901(5)-4901(7)
221, 223 1551(155)-
1551(158)
230 1336(5), 1336(6)
232 6084(1), 6139(1),
120(2), 6218(9), 6218(10)
234 .: P. C. 608(1), 608(2)
235, 236 .. 1280(1)-1280(6)
239 6126(2), 6218(10')
241 .. P. C. 958(1), 940(1),
1124(1)
243 .. P. C. 953(l)-953(8)
247 .... 1762(14)-1762(19),
P. C. 702(10)-702(12)-
250 P. C. 719(1),
719(2)
Acts 1921, Ex. Sess. Code 1926
page section
252 1770(26)-1770(49),
P. C. 528(6)
255 .. 1770(60), P. C. 528(4)
260 P. C. 483(1)
Acts 1922 Code 1926
page section
19 993(156)
63 512(1), 2366(18)
65 2366(22)-2366(52)
66, 67 2366(114)
67 2366(151), 2366(155),
2366(156), 2366(159)
68, 70 2366(159)-
2366(195)
71 2158(118)-2158(122)
72 1762(1)-1762(13),
P. C. 702(9)
77, 78 .. 3154(51)-3154(75)
81, 82 1551(130)
82 .. 1551(116), 1551(204)
83 615(1)-'615(25),
P. C. 309(2)
95 P. C. 1124(1)
97 138(8)-138(20),
P. C. 676(l)-676(9)
108 526(l)-526(3),
848(2), 848(3)
114 1398(3)
116, 117 828(17)
118, 120 828(26)
120, 121 2387(9)
125, 126 2417(2)
126 2417(3), 2417(4)
127 5923(l)-5923(3)
128 2158(60)-2158(67)
132 P. C. 1138(1)
133 861(1), 861(2)
136 1754(66)
138 1754(67)-1754(77),
P. C. 476(8)
142 1676(20)-1676(22)
343, 144 .. 2670(l)-2670(7)
147, 149 .... 695(1)
150 1551(19)
153 1551(136)-1551(157)
Acts 1922 Code 1926
page section
154 . . 1551(137), 1551(138)
155, 156 1551(19)
156, 157 2928(46)-2928-
(51), 2928(56)-2928(60)
2928(65), 2928(67), 2928-
(68), 2928(71), 2928(72),
2928(79)-2928(8l), P. C
461(10)-461(13)
162, 163 2928(51)
173 4919(1;
175 1562(9)-1562(12)
176, 177 828(19)
181 562(l)-562(5)
182 518(1)
183 1551(186)
185, 190 3154(2)
190 3154(29), 3154(30;,
3154(38)
193 P. C. 851(1)-851(8)
195 P. C. 613(1)
184, 185 . . 1623(2)-1623(5)
Acts 1923 Code 1926
page section
85 439(34), P. C.
1124(1)
88 1551(189)-1551(192)
92, 93 .. 3154(23)-3154(67),
P. C. 702(15)
98 1551(159)-1551(163)
100 394(1)
101 3513(1), 3513(2)
103 . . 1843(3), P. C. 656(3)
104 5989(3)-5989(6)
106, 110 .. 913(2)-913(13)
111 4901(6)
113 2543(l)-2543(4),
2543(19), P. C. 627(6)
120, 121 1551(6)
121 .. 2158(102)-2158(105;
123 467(10), 1116(15)
125 1562(12)
127 4997(l)-4997(3)
Acts 1923, Ex. Sess. Code 1926
page section
7, 8 . . 2158(49), 2158(50)-
2158(59)
13, 14 .. 1245(7)-1245(18)
18, 19 . . 1551(42)-1551(45)
20, 66 993(l)-993(72),
993(73)-993(l43), P. C.
465(1), 469(1), 476(4)
39 993(149)-993(150),
P. C. 464(l)-464(3)
39, 40 993(154)
39, 41 993(152)
41 993(156), 993(161),
69, 71 .. 993(150)-993(153)
993(163)
Acts 1924 Code 1926
page section
22 993(17), 993(32),
993(49)
25, 26 . . 993(149), 993(151)
P. C. 462(2)
27, 28 .. 993(143)-993(148),
993(151)
XXVIII
NON-AMENDATORY ACTS
Acts 1924 Code 1926
page section
57 3414(1)
76 2366(169)
78 2082(13)-2082(17),
P. C. 578(2)
80 4828(1)
81 4830(l)-4830(4)
83, 84 2928(41)
84 .. P. C. 1351(1), 1351(2)
86 467(3), 467(4)
87 6017(1)-6017(4)
90 6017(7)-6017(19)
99 2606(1)
101 2158(2)-2158(4),
2158(7)-2158(29), P. C.
621(1)-621(12), 621(17)
119 828(23)-828(25)
122 .... 2543(4), 2543(5)
123 P. C. 1137(2)
124 3328(l)-3328(5)
125 3348(1)
126 4294(2)-4294(195)
135, 159 2366(69)
165 1398(2)
167 .. P.C. 1519(1)-1519(14),
1519(22)
173 P. C. 526(1)
183, 184 .. 1211(1)-1211(8)
186 120(4)-120(20),
P. C. 676(10)
192 .. P. C. 139(1)-139(4)
195 .. P. C. 1069(1)-1069(6)
Acts 1925 Code 1926
page section
62 993(72^4)
63 1041(1)-1041(5)
65 993(156), 993(162)
66 993(161), 993(162)
68 993(16)4)-993(168),
P. C. 476(12)
79, 80 1216(1)-1216(5)
87, 99 1551(141)
92 2409(1)
95, 96 2823(1)
118 3310(1)
119 2366(1), 2366(14),
2366(34), 2366(48)-2366-
(50^), 2366(69)-2366(7l),
2366(74), 2366(75),
2366(83^)-2366(l39)
Acts 1925 Code 1926
page section
135 1551(124^)
136 913(19)-913(22)
141 2158(37)
144 6126(2)
146 P. C. 1482(12)
1482(14)
147 1551(97)
149 P. C. 1519(10)
150, 151 2928(34)
152 431(1)-431(3)
154 6017(20)-6017(29)
159 6017(5), 6017(6)
161 6017(7)
163 6017(11)
164 5989(3)
165 .. 2366(197)-2366(221),
P. C. 702(17)
177, 179 .... 904(l)-904(4)
179 439(34)-439(45)
187 138(21)
190 2042(1)
191 913(14)-913(18)
194, 198 .... P. C. 1519(15)
198 526(1)
199 258(114)
-2158(117^)
204 5270(1)
205 138(7^4')
206 1551(69^)
208 828(3), 828(4),
828(9)-828(l2)
211 2448(5)-2448(l3)
216 P. C. 1138(2)
217 3338(l)-3338(5)
219 ' 2606(1), 2606(2)
224 2202(l)-2202(6)
228 1398(2), P. C.
1519(23)-1519(43)
244 1570(1)
248 904(5)-904(7)
251 1551(156)
252 H67(l), 1167(2)
256, 257 2158(49^),
2158(51)
257 1551(70^)
259, 260 1001(1)-
1001(13)
Acts 1925 Cede
page
265 1104(1), I304i
266, 267 t
282, 283 .. 3154(16)
(25), 3154(48)-3154.
3 If I 58)
286 1762(21) 176:
P. C. 406(l)-4
291 3149(1)-31
P. C. ?
297 1843(11)-184;
P. C. 70 1
302 218(4K)-2158
2158(30), 2158(:\
P. C. 601(1), 602(1),
604(2), 613(1), 594(1)-
594(15)
310 1762(36)-1762(42),
P. C. 476(3)
315 1770(60^),
P. C. 528(10)
318 1823(1)-1823(5),
P. C. 656(1)
321 138(22), 138(23),
P. C. 676(11)
322 2677(7)-2677(l5),
P. C. 528(11)
325 1896(4)-1896(21),
P. C. 476 (.10)
256 2158(50)
337 848(4)-848(6), .
P. C. 702(16)
339, 340 2158(8^4)
2158(29^), 2158(30^4),
P. C. 419(1), 419(2), 621-
(13), 621(14)
Acts 1926, Ex. Sess. Code 192ft
page section
34 App. l(a)-(k)
38 App. 2(a)-(d)
39 App. 3
40 App. 4(a)-(c;
42 App. 5
49 App. 6(a)-(d)
52 App. 7(a)
51 App. 8(a)
53, 55 App. 15(c)
REVISED CODE OF GEORGIA
PRELIMINARY PROVISIONS
§ 1. (§ 1.) Laws of force in this State.— The
laws of general operation in this State are —
Editor's Note. — This section came from an act of legisla-
ture (Act 1784, Cobb, 721) which declared all laws in force
on 14th May, 1776, not repugnant to the Constitution, etc.,
to be perpetuated. The common and statute law of Eng-
land, so much as was not repugnant to the Constitution,
was also adopted. The section was codified in the Code of
1863 with the word "Confederate" where "United" now ap-
pears. Subdivision three was in effect the same as it now
is but gave the laws in force in more detail. The Code of
1873 substituted the word "United" for "Confederate" and
subdivision three was changed to meet the new conditions
by eliminating such laws as were inconsistent with the
new Federal Government. The section appeared in the
Code of 1882 as it now reads and has remained unchanged
to date.
1. As the supreme law: The Constitution of the
United States, the laws of the United States in
pursuance thereof, and all treaties made under the
authority of the United States.
For- full treatment, see 3 Cum. Dig. 864; 3 Enc. Dig. 304.
As to forbidding special legislation, see § 6391. As to cor-
responding provisions in State Constitution, see § 6602. For
corresponding provisions in Federal Constitution, see § 6681.
As to oath to the Constitution, see § 6682. -
A treaty with the Creek Indians must be regarded with
the same solemnity, and to the same intents as if it were
an Act of Congress. Howell v. Fountain, 3 Ga. 176.
The Federal Bankruptcy Act of 1898 is as binding a law
in this state as if it were enacted by the General Assem-
bly. Smith v. Cotton, etc., Co., 3 Ga. App. 110.
Supreme Court Decisions. — -The authority of the decisions
of the Supreme Court of the United States on constitutional
questions are paramount. Thornton v. Lane, 11 Ga. 495;
Padelford, etc., Co. v. Savannah, 14 Ga. 438; Aycock v.
Martin, 37 Ga. 124. As to relation of State decisions to
Federal decisions, see post, this note, "Subordinate Laws
in Force — Paragraph 3."
Construction of Acts of Congress. — In the construction
of any law of Congress, it would be the duty of Supreme
Court of Georgia to conform its decisions to those made by
the United States Supreme Court. Gilreath & Son v. Hol-
ston Salt, etc., Co., 67 Ga. 702-7.
Questions within Jurisdiction of Federal Courts. — Ques-
tions peculiarly subject to the cognizance of the courts of
the United States should be governed by the decisions of
those courts, and binding on the State Courts. Georgia
Railroad v. Cubbedge, etc., Co., 75 Ga. 321.
2. As next in authority thereto: The Constitu-
tion of this State.
For full treatment, see 3 Cum. Dig. 864; 3 Enc. Dig. 294.
As to corresponding provision in State Constitution, see
§ 6603. As to legislative acts in violation of this Consti-
tution, see § 6392. As to cases construing provisions of
Constitution, see § 6357 et seq.
Rank as Authority. — At the very threshold of the Code
following the Constitution and laws of the U. S., the State
Constitution and its provisions are declared to be the su-
preme law, to which other laws must yield if they are in
conflict therewith. Renfroe v. Atlanta, 140 Ga. 81, 83, 78
S. E. 449.
Authority of Verbal Changes. — The Constitution as en-
rolled, published and ratified by the people, is the organic
law of this state. If verbal changes were made in it after
it was reported by the committee of revision, they must
be presumed to have been authorized by the convention,
the published proceedings showing that verbal changes
were made of which no special note was taken. Walsh v.
Augusta, 67 Ga. 293, 294.
3. In subordination to the fores-oino;: All laws
now of force in this State, not inconsistent with the
Constitution and the ordinances of the Convention
of 1877.
For full treatment, see 3 Cum. Dig. 702; 3 Enc. Dig. 146.
For corresponding provision in State Constitution, see 5
6604. As to ordinances as authority, see § 6609. As to
sections in relation to proceedings against corporations,
cumulative of common law, see § 2257. As to actions com-
menced under the Code as governed by common law, see
§ 5511. As to powers of public officers, see § 303.
State Code. — The Code was adopted by the Constitutions
of 1865 and 1868 as authority. Macon, etc., R. Co. v. John-
son, 3& Ga. 409; Phillips v. Solomon, 42 Ga. 192. See § 2.
Supreme Court Decisions. — The Supreme Court of Geor-
gia is co-equal and co-ordinate with the Supreme Court of
the United States; and therefore, the latter cannot give
the former an order, or make for it a precedent. Padel-
ford, etc., Co. v. Savannah, 14 Ga. 438.
Converted into Statutes. — Acts 1858, p. 74 is prospective,
Bond v. Munro, 28 Ga. 597; and converts into statutes all
such decisions as are made by a full bench. Lucas v. Lu-
cas, 30 Ga. 191; Heard v. Russell & Potter, 59 Ga. 25.
Obiter dicta do not settle the law nor entitle a party to
an equity. Bigby v. Powell, 25 Ga. 244. But much of the
law originates in obiter. Reed v. Roberts, 26 Ga. 294.
Rules of Court.— See §§ 4641, 4861.
Common Law. — A doctrine of the common law not ex-
pressly repealed by statute is still in force in this state.
Higdon v. Bell, 25 Ga. App. 54, 102 S. E- 546.
Same — Higher Authority than Canon Law. — The adju-
dications of Courts of Common Law and Chancery in Eng-
land are higher authority than the decisions of the Ec-
clesiastical Courts and must prevail in this state. Chap-
I man v. Gray, 8 Ga. 341. Prior to May 14th, 1776, they were
not authority. Thornton v. Lane, 11 Ga. 495; Tucker v.
Adams, 14 Ga. 548. To be conclusive they should be clear
and well settled. Robert v. West & Reid, 15 Ga. 122.
Same — Criminal Law. — There are no crimes in Georgia by
common law, save such as were defined and punished in
the Code. White v. Georgia, 51 Ga. 286.
Where the, common-law crime has been adopted, and
common-law terms used in its definition, the construction
previously placed thereon by the English courts becomes
by intendment a part of the adopting statute. Thrower
v. State, 117 Ga. 753, 45 S. E. 126.
Provincial Acts that were in force and binding on the
14th day of May, 1776, were adopted as authority. Flint,
etc., Co. v. Foster, 5 Ga. 194; King v. Leeves, 36 Ga. 199.
English Law Unsuited to Our Condition. — The Common
Law of England, and such of the Statute Laws as were
usually in force before the Revolution, unsuited to our
condition, were not adopted. Flint, etc., Co. v. Foster, 5
Ga. 194; Tucker v. Adams, 14 Ga. 548: King v. Leeves, 36
Ga. 199; Woodward v. Gates, 38 Ga. 205; Mitchell v. Rome,
49 Ga. 20; Turner v. Thompson, 58 Ga. 268.
4. The custom of amr business or trade shall be
binding only when it is of such universal practice
as to justify the conclusion that it became, by im-
plication, a part of the contract. Act 1784, Cobb.
724.
For full treatment, see 11 Cum. Dig. 232: 12 Enc. Dig.
435. As to admissibility of parol evidence to show usage,
see § 5793. As to when purchase-price is due as affected
by usage, see § 4130. As to time of responsibility of car-
rier as. affected by usage, see § 2730. As to interpretation
of words of contract by local usage, see § 4268 (2). As to
customs of merchants being judicially recognized, see §
5734. As to agent in possession with apparent right to sell,
according to custom, see § 4119. As to satisfying liens of
factors by sale according to usage of locality, see § 3369.
Requisites. — To make a usage good, it must be known,
certain, uniform, reasonable and not contrary to law.
Berry v. Cooper, 28 Ga. 543.
[1]
§ 1
PRELIMINARY PROVISIONS
§ 2
Yields to Law.— Custom can n^t change positive law of
the state. Hopp Bros. v. Huntei Mfg. Co., 145 Ga. 836, 90
S. E. 61. See 11 Cum. Dig. 233; 12 Enc. Dig. 445.
Can Not Change Express Terms of Contract.— Merchants
Bank v. Demere, 92 Ga. 735, 19 S. E. 38; Haupt v. Phoe-
nix Life Ins. Co., 110 Ga. 146, 35 S. E- 342; Staney v. West-
ern Union Tel. Co., 92 Ga. 613, 18 S. E. 1008; Hopp v. Hun-
ter Mfg. Co., 115 Ga. 836, 90 S. E. 61.
Must Be Universal.— The custom need not be so uni-
versal as to embrace every transaction of the sort; it is
enough if it be so usual, so customary, so generally prac-
tised by those engaged in the business, that exceptions
here and there will only serve to establish the habit of the
trade. Champion v. Wilson & Co., 64 Ga. 184. See also
Savannah v. Feeley, 66 Ga. 31.
Same— Effect of Universality.— And where it is universal
every person is presumed to know the custom, but this
is not true of a purely local custom. Horn v. Strachen &
Co., 86 Ga. 408, 12 S. E. 678; Potts v. Moultrie Banking
Co.] 22 Ga. App. 498, 96 S. E. 502.
Same— Individual Habits of Dealing.— The individual hab-
its of dealing are not binding as custom. Scott v. Saffold,
37 Ga. 384; Robertson v. Wilder & Co., 69 Ga. 340.
Same — Parol Evidence to Show Universality.— Parol evi-
dence is admissible to show the existence of a custom of
the business in which the contract was made. Branch,
Sons & Co. v. Palmer, 65 Ga. 210; Hartwell Grocery Co.
v. Mountain City Co., 8 Ga. App. 727, 70 S. E. 48; Barrie
v. Miller, 104 Ga. 312, 30 S. E. 840; Kirby Planing-Mill Co.
v. Hughes, 11 Ga. App. 645, 75 S. E- 1059.
And a witness, having knowledge of a custom, may state
it, not as an opinion of law, but as a fact. Fanners Gin-
nery, etc., Co. v. Thrasher, 144 Ga. 598, 602, 81 S. E.804.
Must Be Known.— To render a custom binding, it is not
necessary to show that it "was in the minds of both par-
ties," before it becomes a part of the contract. Ocean
Steamship Co. v. McAlpin, 69 Ga. 437.
The custom or practise of a lender, where the borrower
is not shown to have known it, is inadmissible. Hum-
phrey v. Copeland, 54 Ga. 543.
Same — Presumption That Insurer Knows Customs. — It is
well settled that insurers are bound to know the customs
of a place where they transact business, and are assumed
to have made their contracts in reference to such customs.
Todd v. German American Ins. Co., 2 Ga. App. 789, 803,
59 S. E. 94; Lauchheimer & Sons v. Jacobs, 126 Ga. 261,
265, 55 S. E. 55; Hardeman v. English, 79 Ga. 387, 5 S.
E. 701.
Same — Proof of Notice.— Proof of notice of a custom must
be shown. Leonard v. Peeples, 30 Ga. 61; Sugart v. Mays,
54 Ga. 554; Potts v. Moultrie Bank Co., 22 Ga. App. 498,
96 S. E- 502.
Sudden Change of Custom Presumed Fraudulent. — In re-
spect to notice, as to all other dealings between parties,
custom and usage followed for sometime in the intercourse
between them, if suddenly changed, is well calculated to
operate as a fraud upon those confiding in it. Grant v.
Ala., etc., Co., 76 Ga. 575.
Question for Jury.— The existence of a custom is a ques-
tion for the jury. Branch, Sons & Co. v. Palmer, 65 Ga.
210.
Effect of Custom in Particular Instances. — When a valid
custom exists, and the parties contract with reference
thereto, the custom affects the contract in the same man-
ner as would a statute. Deadwyler & Co. v. Karow, 131
Ga. 227, 236, 62 S. E. 172.
Same — To Show Meaning of Words. — See, Colfax Gin
Co. v. Buckeye Cotton Oil Co., 24 Ga. App. 610, 101 S. E.
697; Stewart & Son v. Cook, 118 Ga. 541, 45 S. E- 398.
Same — Evidence of Custom of Vendor to Sign Vendee's
Name Not Admissible. — Hopp Bros. Co. v. Hunter Mfg.
Co., 145 Ga. 836, 90 S. E. 61.
Same — Inspections by Lumber Merchants. — The court
rightly refused to allow defendants to prove that the cus-
tom of lumber merchants as to the making of inspections
was, that inspection made at the point of delivery by the
consignee should control, ' the contract between the par-
ties being silent thereon. Wheelwright & Co. v. Upchurch,
99 Ga. 247, 248, 25 S. E. 170.
Same — Reclamation for False Packing of Cotton. — Recla-
mation for false packing of cotton must be made in rea-
sonable time according to the custom of the business. Beach
& Co. v. Branch & Co., 57 Ga. 362.
Same — Remittance by Letter. — Where a remittance is
made by letter, the sender must show either authority
of the creditor to remit in that mpde, or a usage from
which the authority can be inferred. Morton v. Mor-
ris, 31 Ga. 378.
Same — Promissory Notes. — A promissory note, made pay-
able to bearer, is negotiable by delivery; and by the usage
and custom of merchants, has that negotiable quality,
though it be under seal. Porter v. McCollum, 15 Ga. 529.
Clerks of 'boats can only make notes binding principal
when it is a universal custom. Mott v. Hall, etc., Co.,
41 Ga. 117.
Same — Carrier's Contracts.— Usage is a fact which may
be resorted to, to show that a carrier's contract is to be
implied. Cooper v. Berry, 21 Ga. 526.
Where the customary rate on cotton samples was one
cent a sample, a carrier is not bound to ship them un-
less paid this customary rate. Lamar v. New York, etc.,
Nav. Co., 16 Ga. 558. See 11 Cum. Dig. 235; 12 Enc.
Dig. 449.
Same — Delivery of Goods to Carrier. — Where nothing
is said as to the mode of delivery, transfer of goods to a
carrier does not amount to a delivery in the absence of a
usage between the two places. Loyd v. Wight, etc., Co.,
20 Ga. 574; Reed v. Roberts, 26 Ga. 294. See also Berry
v. Cooper, 28 Ga. 543 ; Rome R. Co. v. Sullivan, etc., Co.,.
32 Ga. 400.
Same — Extension Act. — An act to extend the charter of
a corporation, by usage, includes the terms or condition
upon which said extention is granted. Robinson v. Bank,
18 Ga. 65, 90.
Same — Agreement to Cultivate Land. — Where there was
an agreement to cultivate land with no stipulation as
to rent, the custom of the neighborhood would deter-
mine the amount. Scruggs v. Gibson, 40 Ga. 511.
Same — Loss of Money by Bank's Agent. — When the ques-
tion is one of diligence, between a bank and its agent, it
is not competent for the latter to prove the custom of an-
other bank, in providing suitable buildings and safes in
which the agent may keep the principal's money, but it is
competent to show that other banks look to their safes for
security and not the outside fastenings of the building.
Wright v. Central R., etc., Co., 16 Ga. 38.
Same — Determining Fees. — A custom is not invalid be-
cause it does not fix the amount of the fee for every case.
If the custom is that it shall be a reasonable fee, the cus-
tom is reasonable. Haran v. Strachan & Co., 86 Ga'. 408,
12 S. E. 678.
Custom Must Be Pleaded. — To authorize evidence seek-
ing to supply essential particulars to an unambiguous writ-
ten contract, by proof of a custom, the custom must be
distinctly pleaded. Hamby v. Truitt, 14 Ga. App. 515, 81
S. E- 593. As to sufficiency of allegations to show custom
as to storage contract, see Maddox v. Washburn Crosby
Co., 135 Ga. 539, 69 S. E- 821.
Paragraph 4 stated and applied in Mott v. Hall, etc., Co.,
41 Ga. 117; Savannah v. Feeley, 66 Ga. 31; Hardeman v.
English, 79 Ga. 387, 75 S. E. 701; Brown v. Hall, 108 Ga.
759, 133 S. E- 62.
§ 2. (§ 2.) Code — when and how to take effect.
— This Code shall take effect on the first day of
January, 1863. All offenses committed prior to
that date shall be tried and punished under existing
laws; and all rights or obligations, or duties ac-
quired or imposed by existing laws, shall remain
valid and binding, notwithstanding the repeal or
modification of such laws. Acts 1858, p. 95. 1861,.
p. 28.
For full treatment, see 10 Cum. Dig. 470; 11 Enc. Dig.
821. As to local and private acts, see § 6605. As to place
of Code as authority, see §§ 1, par. 3; 6604. As to pro-
cedure in actions commenced under the Code, see § 5511.
Editor's Note. — This section came from an act of legis-
lature (Acts 1858, p. 95) which provided for the codification
of the Georgia laws. A Code was first adopted to take ef-
fect January 1st, 1862 by Acts 1860, p. 24. This time was
extended so that it would, go into operation January 1st,
1863, by Acts 1861, p. 28. The second sentence of the sec-
tion, "All offenses committed prior, etc." first appeared in
the Code of 1863. There have been no changes in the sec-
tion, to date.
Effect of Adopting Code. — The effect of the act adopting
the Code of 1910 (Acts 1910, p. 48) was to enact into one
statute, all of the sections of that Code. Barnes v. Car-
ter, 120 Ga. 895, 897, 48 S. E. 387; Atkinson v. Swords, 11
Ga. App. 167, 171, 74 S. E- 1093. See also, Central, etc., R.
Co. v. State, 104 Ga. 831, 31 S. E- 531; Thornton v. State, 5
Ga. App. 397, 399, 63 S. E. 301.
The adoption, not the compilation, is the legislative act.
Western, etc., R. Co. v. Young, 83 Ga. 512, 10 S. E. 197.
Same — On Title and Subject. — If ' an act has been em-
bodied in the Code and becomes a part of the law of this
state upon the adoption of the Code, the contents of the
title of the original act are immaterial. Kennedy v. Meara,
[2]
§ 3
PRELIMINARY PROVISIONS
§ 4
127 Ga. 68, 75, 56 S. E. 243; Central, etc., R. Co. v. State,
104 Ga. 831, 832, 31 S. E. 531; Huff v. Markham, 70 Ga. 284.
Same— Section Not Retroactive.— The Code intended to
apply to future contracts, and this section does not have
a retroactive operation. Bass v. Ware, 34 Ga. 386; Bryon
v, Doolittle, 38 Ga. 255; Napier v. Jones, 45 Ga. 521; Ghol-
ston v. Gholston, 54 Ga. 285.
Same — Decisions Made Prior to Code.— Certain decisions
made before the adoption of the Code, were held not law
since Code. Adams v. Barlow, 69 Ga. 302.
Same — Errors Not Adopted.— Atlanta v. Gate City Gas
Light Co., 71 Ga. 106; Bailey v. McAlpin, 122 Ga. 616, 624,
50 S. E. 388.
Same— Consistent Acts Not Codified.— The act of 1811,
relating to costs on discharge before magistrate, though not
embodied in the Code, not being inconsistent with any of
the provisions thereof, is still of force. Gault v. Wallis, 53
Ga. 675.
Same — Sa*e by Executor under Will Made Prior to Code.
—Where the will of a testator who died prior to the adop-
tion of the Code, created a general power of sale in his
executors for certain purposes named, a private sale was
valid though not made until after the Code was adopted.
Smith v. Hulsey, 62 Ga. 341.
Authority of Codifiers.— See 11 Enc. Dig. 821.
Omissions — As Affecting Repeal. — Where the provision of
the Code treats the entire subject matter, what is omitted
is repealed. Georgia R., etc., Co. v. Wynn, 42 Ga. 331;
Shumate v. Williams, 34 Ga. 245; Miller v. Southwestern
R. Co., 55 Ga. 143.
Where part of statute omitted may be restored without
inconsistencv, there is no repeal. Daniel v. Jackson, 53
Ga. 87.
Same — Same — Erroneous Omission. — A valid statute of this
state in existence at the date of the adoption of the Code,
but omitted therefrom through oversight or mistake, is still
in force unless expressly or by necessary implication re-
pealed by a subsequent statute or some provision of the
Code. Hicks v. Moyer. 10 Ga. App. 488, 73 S. E. 754; Geor-
gia R., etc., Co. v. Wright, 124 Ga. 596, 608, 53 S. E. 251;
Wiggins v. State. 17 Ga. App. 748, 749, 88 S. E. 411; Far-'
ley v. State, 12 Ga. App. 643, 644, 77 S. E. 1131. See 11
Cum. Dig. 522.
Rulings on Statute Applicable to Code. — Rulings are all
as applicable to the Code as to the statute on which they
were made, for the Code is not substantially different from
the statute. Wall v. Jones, 62 Ga. 725, 728.
Discrepancies Reconciled. — Because the subjects of the
Code were written by different men, it is the duty of the
court to reconcile discrepancies. Greer v. Hangabook, 47
Ga. 282. See also Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107.
§ 3. (§ 3.) State, where bound by a statute. —
The State is not bound by the passage of a law un-
less named therein, or unless the words of the act
should be so plain, clear and unmistakable as to
leave no doubt as to the intention of the legislature.
See 11 Enc. Dig. 808. As to supreme law of force in this
state, see §§ 1, par. 1; 6602. As to force of ordinances,
see § 6609. As to powers of public officers, see § 303. As
to limitations to operate against the State, see § 4371.
Editor's Note. — This rule of construction is found in the
case of Mayor v. King, 91 Ga. 522, 17 S. E. 940, citing Lingo
v. Harris, 73 Ga. 28. It comes down to us from our Eng-
lish ancestors, and we recognize it as sound, and the pol-
icy which originally dictated it lives and is in force today.
See also Brooks v. State, 54 Ga. 36. The first codification
appeared in the Code of 1895 as it reads in our present Code.
Applicable to Municipalities. — Municipalities being merely
branches of the State, this rule of construction is applicable
to them. Mayor v. King, 91 Ga. 522, 17 S. E. 940; Lingo v.
Harris, 73 Ga. 28.
Exceptions to Section. — In Doe v. Deavors, 11 Ga. 79, it
was held that there were three exceptions to the rule,
namely : statutes for the maintenance of religion, the ad-
vancement of learning, and the support of the poor. Ac-
cording to that case a statute for one of these objects bound
the Sovereign or State, although the act did not expressly
so provide. It seems that the codifiers and the legislature,
in adopting this rule, omitted the exceptions above men-
tioned, and qualified the general rule so as to except cases
where there was a manifest intent to include the State.
Whether or not the exceptions are still of force in this
State, the later decisions of this court and the Code sec-
tion cited at least indicate a disposition not to broaden or
increase the exceptions. Butler v. Merritt, 113 Ga. 238,
240, 38 S. E- 751; Fowler v. Rome Dispensary, 5 Ga. App.
36, 62 S. E. 660.
University Trustees Not a Sovereignty. — Trustees v. Den-
mark, 141 Ga. 390.
Condemnation of Property for Public Use. — The statute
providing for the condemnation of property for public use is
applicable only to privately owned property, and not to
property owned by the State. Western Union Tel. Co. v.
Western, etc., R. Co., 142 Ga. 532, 83 S. E. 135. See §
5206, et seq.
§ 4. (§ 4.) Construction of statutes. — The
following rules shall govern the construction of all
statutory enactments in this State:
For full treatment of construction of statutes, see 10
Cum. Dig. 501; 11 Enc. Dig. 833. As to section in Penal
Code identical with this, see § 1, P. C. As to rules of in-
terpretation of contracts, see § 4268.
1. The ordinary signification shall be applied to
all words, except words of art, or connected with
a particular trade or subject-matter, when they
shall have the singnification attached to them by ex-
perts in such trade, or with reference to such sub-
ject-matter.
For full treatment, see 10 Cum. Dig. 506; 11 Enc. Dig.
839. As to construction of words in contracts, see § 4268.
As to meaning of certain words, see § 5.
In General. — The words of a statute, says Kent, if of
common use, are to be taken in their natural and ordinary
signification. Persons v. Hight, 4 Ga. 474; Central R.,
etc., Co. v. State, 54 Ga. 401, 408; Price Co. v. Atlanta, 105
Ga. 358, 31 S. E. 619; Southern Bell Tel., etc., Co. v.
Parker, 119 Ga. 721, 47 S. E. 194; Robinson v. State, 11
Ga. App. 847, 848, 76 S. E- 1061; Gatlin v. State, 18 Ga.
App. 9, 89 S. E. 345.
Penal statutes are strictly construed, yet not so as to
defeat the intention of legislature. Hall v. State, 3 Ga. 18;
Holland v. State, 34 Ga. 455. See also Atlantic Coast Line
R. Co. v. State, 135 Ga. 545, 554, 69 S. E. 725.
Words Given Common Sense Meaning. — Every word em-
ployed should be expounded in its plain, obvious, and com-
mon sense, meaning unless something else furnishes ground
to control, qualify or enlarge it. Wellborn v. Estes, 70
Ga. 390. See also Booth v. Soffold, 46 Ga. 278; Mott v.
Central Railroad, 70 Ga. 680; Richmond, etc., R. Co. v.
Howard, 79 Ga. 44, 53, 3 S. E- 426.
Construing Words by Use of Companion Words. — Nos-
citur a socus is a familiar rule of construction, and as-
certains the precise meaning of words from others with
which they are associated and from which they cannot be
separated without impairing or destroying the evident sense
they were designed to convey in the connection used. Mott
v. Central R., 70 Ga. 680.
Particular Words and Phrases. — See 10 Cum. Dig. 506;
11 Enc. Dig. 839.
2. The present or past tense shall include the
future.
3. The masculine gender shall include the femin-
ine and neuter.
Nothing can be more manifest than that this rule was
intended to apply to the provisions of the Code in the sub-
ject of wills. Ellis v. Darden, 86 Ga. 368, 12 S. E. 652.
In a generic sense the term "man" includes "woman,"
and the pronoun "he" includes a person of the feminine
gender. Hightower v. State, 14 Ga. App. 246, 80 S. E- 684.
4. The singular or plural number shall each in-
clude the other, unless expressly excluded.
Plural Personal Pronoun Instead of Singular. — The use
of the plural instead of the singular personal pronoun in a
bill of indictment will not vitiate it. Jackson v. State, 88
Ga. 784, 786, 15 S. E- 677.
"Owner" Includes "Owners." — The words "owner" in §
3587 is held to include "owners" under this section. Stall-
worth v. Martin, etc., Co., 17 Ga. App. 689, 87 S. E. 1094.
"Defendant" Includes "Defendants." — A verdict finding in
favor of "the defendant" will be construed as a finding in
favor of all the defendants, where the suit is against two
or more persons. Monk -Sloan Company v. Vintman Oil
Co., 10 Ga. App. 390, 392, 73 S. E. 522.
"Orphans" Includes "Orphan." — Under a gift "to orphans,"
a single orphan will take. Henderson v. Hackney, 23 Ga.
383, 392.
"Witnesses" Includes "Witness." — The word "witnesses"
means one witness or more in §§ 1337-8 of Penal Code.
Herndon v. Jones County, 18 Ga. App. 523, 524, 89 S. E.
1047.
But this provision does not apply when it is apparent
that the statute is dealing with the number of witnesses
necessary, and expressly declaring that one is sufficient
[3]
§ 4
PRELIMINARY PROVISIONS
§ 4
except in specified cases. Stone v. State, 118 Ga. 705,
717, 45 S. E. 630.
"Person" or "Party."— See § 2100.
"Company" Includes "Individual." — See Atlantic Coast
Line R. Co, v. State, 135 Ga. 545, 563, 69 S. E- 725.
"Liquor" Includes "Liquors." — Willburn v. State, 8 Ga.
App. 28, 32, 68 S. F,. 460.
5. A joint authority given to any number of per-
sons, or officers, may be executed by a majority of
them, unless it is otherwise declared.
As to construction of powers, see 9 Cum. Dig. 529; 10
Enc. Dig. 531. As to number of arbitrators necessary to
make an award, see § 5046. As to number of executors
necessary to execute trusts, where several are named, see
§ 3893. As to inventory made jointly by administrators,
see § 3987. As to majority of officers making voters
list, see § 50. As to authentication of voters list by two
county registrars, see § 67. As to power of majority of
state school board, see § 1436. As to power of majority
of commissioners of public printing, see § 1338.
Majority of Commissioners. — Three commissioners, being
a majority of five, are competent to act and make an as-
sessment. Beall v. State, 9 Ga. 367. See also Stevenson
v. State, 69 Ga. 68, 74.
In drawing a grand jury, the ordinary acts as one of
the board of jury commissioners, and his absence during
the drawing of jury will not render it invalid, a ma-
jority of the commissioners being present and acting.
Roby v. State, 74 Ga. 812, 813.
City Board of Education. — A majority of the members
of the board of education of the City of Blakely had au-
thority to institute mandamus proceedings against the
mayor and council of that city. Blakely v. Singletary,
138 Ga. 632, 634, 75 S. E- 1054.
Majority Acting with Unqualified Member. — Where au-
thority was not in fact exercised by the majority quali-
fied members, but by them in conjunction with another
person whose appointment was void, it would not seem
that this section would have application. Felker v. Mon-
roe*, 22 Ga. App. 301, 306, 95 S. E- 1023.
6. A substantial compliance with any requisi-
tion of the Code, or laws amendatory thereof,
especially on the part of public officers, shall be
deemed and held sufficient, and no proceeding
shall be declared void for want of such compli-
ance, unless expressl}' so provided by the enact-
ment.
As to substantial compliance in applications for attach-
ment, see § 5073. As to formality in petitions and sub-
stantial compliance, see § 5549. As to compliance as to
form in guardian's bond and oath, see § 3047. As to
formalities in petition or process, see § 5572.
Strict and Liberal Construction of Statutes Generally.
—See 10 Cum. Dig. 512; 11 Enc. Dig. 849.
Liberal Construction. — Statutes should be liberally con-
strued, but too much latitude should not be allowed.
Ezekiel v. Dixon, 3 Ga. 146, 159.
Strict Construction. — A statutory remedy, in derogation
of the Common Law, must be strictly pursued. Banks
v. Darden, 18 Ga. 318, 343; Tuttle v. Walton, 1 Ga. 43, 68;
Fox v. Rucker, 30 Ga. 525, 527; Seaboard Air-Line Ry.
v. Bishop, 132 Ga. 71, 95, 63 S. E- 1193; Haralson v. Speer,
1 Ga. App. 573, 58 S. E. 142. See 10 Cum. Dig. 512.
In Ex parte proceedings, under special authority, great
strictness is required. D'Antignac v. Augusta, 31 Ga.
700.
7. When a bond is required by law, an under-
taking in writing, without seal, is sufficient; and
in all bonds where the names of the obligors do
not appear in the bond, but are subscribed there-
to, they are bound thereby.
As to construction of bonds, see 2 Cum. Dig. 976; 2
Enc. Dig. 511. As to signature and seal in certiorari bond,
see 3 Cum. Dig. 507. As to limitation of actions on spe-
cialties, and what considered specialties, see § 4359. As
to bonds valid though not in conformity to law, see §
298. As to bonds taken by public officers, see § 13. As to
bond and oath of guardians, see § 3047. As to liability
of sureties on guardian's bond, see § 3073. As to suit on
administrator's bond, see § 3974.
Bond of Tax Collector Not under Seal. — A writing, sub-
scribed by the tax-collector and several others, intended
to be used and treated as the official bond required of the
collector, though not under seal, is, by virtue of this
[4
section, to be treated as though it were the official stat-
utory bond. Dedge v. Branch, 94 Ga. 37, ,20 S. E. 657.
Sheriff's Official Bond. — If a sheriff's official bond were
not under seal, it might be good under this section, but
a different statute of limitations might possibly apply.
Harris v. Black, 143 Ga. 497, 85 S. E- 742.
A certiorari bond need not be under seal. King & Co.
v. Cantrell, 4 Ga. App. 263, 61 S. E- 144.
An instrument with a scrawl annexed to the signatures,
is a bond, without purporting to be such upon its face.
Harden v. Webster, etc., Co., 29 Ga. 427.
Securities Name Need Not Appear in Bond. — Chappie v.
Tucker, 110 Ga. 467, 468, 35 S. E. 643.
8. When a number of days is prescribed for the
exercise of any privilege, or the discharge of any
duty, only the first or last day shall be counted;
and if the last day shall fall on the Sabbath, an-
other day shall be allowed in the computation.
See 11 Cum. Dig. 24 and references there given. As to
exclusion of Sundays and holidays in time for entering
appeal, see § 5Q01. As to negotiable papers due on Sun-
days or holidays, see § 4285.
In General. — Growing out of this statutory provision
two distinct lines of decisions have arisen. Where days
are to be computed, this provision is applied, and only
the first or last day counted, and the last day excluded
if it falls on Sundays. McLendon v. State, 14 Ga. App.
274, SO S. E. 692.*
Where, however, the computation is of months or years,
section 1, paragraph 8, is not applicable, Sundays are
not excluded, and the right is lost unless invoked on or
before the day last preceding the day of the month or year
corresponding to the day upon which the right accrued.
McLendon v. State, 14 Ga. App. 274, 80 S. E- 692.
Applicability of Section. — This section applies to statu-
tory limitations, and has no effect upon contractual limi-
tations. Rowell v. Harrell Realty Co., 25 Ga. App. 585,
103 S. E- 717. See also Maxwell Bros. v. Liverpool, etc.,
Ins. Co., 12 Ga. App. 127, 76 S. E- 1036; Simpkins v. 'John-
son, 3 Ga. App. 437.
Meaning of "Day." — The period of time contemplated by
the words, "days of election" as used in § 445 of the"
Penal Code, is a day of twenty-four hours, commencing
at midnight preceding the opening of the polls, and end-
ing at midnight succeeding the close of the polls. Rose
v. State, 107 Ga. 697, 33 S. E- 439.
Suit on Insurance Policy. — Where the uncontroverted
evidence shows that the property insured was consumed
on the morning of the 24th of January, 1910, the twelve
months limitation as to commencement of the action ex-
pired at midnight of the 23d of January, 1911; and, under
this stipulation of the contract, the suit on the policy,
which was not commenced until January 24, 1911, was
barred. Maxwell Bros. v. Liverpool, etc., Ins. Co., 12 Ga.
App. 127, 76 S. E. 1036; Phillips v. Fireman's Fund Ins.
Co., 31 Ga. App. 541, 121 S. E. 255.
When Last Day Falls on Sunday — General Rule. — In
computing the thirty days in which a petition for cer-
tiorari must be presented for sanction, when the last day
falls on Sunday, it will be sufficient if the petition be
presented for sanction on the following Monday. Penal
Code, § 1, par. 8. See, also, Wood v. State, 12 Ga. App.
651, 78 S. E- 140; Hill v. State, 14 Ga. App. 410, 81 S. E.
248.
Where there was nothing to be done on the last day,
it makes no difference that it fell on the Sabbath. Mer-
ritt v. Gate City Nat. Bank, 100 Ga. 147, 27 S. E- 979.
Where Last Day Is .Both Sunday and Holiday. — If in
any case the last day allowed by law for the performance
of an act is both a holiday and the Sabbath day, the fol-
lowing Monday can be included, but a holiday only, does
not have the effect of excluding that day from the count,
since the holiday is not by law, dies non juridicius. Wood
v. State, 12 Ga. App. 651, 78 S. E- 140.
One Day Superadded. — Only the first or the last day
shall be counted, not both. Blitch v. Brewer, 83 Ga. 333,
9 S. E- 837.
Thirty days after the adjournment of court being al-
lowed for the filing of the document, and the last day
falling on Sunday, the filing on Monday was within the
time prescribed. Page v. Blackshear, 75 Ga. 885.
In cases of tort both the day of the injury and the day
of the filing of the suit must be counted in determining
whether the action was filed within the period of limita-
tion. David v. Marbut- Williams Lumber Co., 32 Ga.
App. 157, 122 S. E. 906.
Newspaper Notice — Of Sale. — Where a sale is advertized
on December 25 to take place on December 27, there is a
failure to comply with the legal requirement governing
]
§ 4
PRELIMINARY PROVISIONS
§ 5
the sale, which provider, for three days' notice. Marshall
v. Armour Fertilizer Works, 24 Ga. App. 402, 100 S. E-
766.
Filing Suit— Notice of Attorney's Fees.— Where the re-
turn day for filing suits in a court is the 15th of the
month and a petition is filed on that day, a notice to bind
for attorney's fees, served on the 5th of the same month,
is served "ten days before suit is brought." Marietta
Fertilizer Co. v. Benton, 21 Ga. App. 466, 94 S. E- 657.
Same — Time Allowed Defendant to Consider Claim.— Tn a
suit for damages against a municipality the claim was first
presented on October 16th next prior to the filing of the
suit on November 15. It was held that the action was
commenced before the municipality had been allowed the
statutory period of 30 days after the claim had been pre-
sented. Grooms v. Hawkinsville, 31 Gas App. 424, 120
S. F. 807.
Serving Rule Nisi to Foreclose Mortgage.— The second
day of January, the day on which the rule nisi to fore-
close a mortgage was served, should be counted, and count-
ing that day, three months had elapsed before the second
of April, and the service upon the defendant was suffi-
cient under § 3276. English v. Ozburn, 59 Ga. 392.
Service of Process.— This section does not qualify that
part of Code which requires service of process to be con-
summated at least fifteen days before the term; or if it
does, that its operation is to add to, and not subtract
from, the number of days specified. There is little proba-
bility that, where Sunday intervenes, the Code intended
to take a day away from a party and give it to the sher-
iff. Hood v. Powers, 57 Ga. 244, 246.
In computing the five days allowed sheriffs and their
deputies for serving writs, the return day, or latest day
fixed for filing petitions at law, or bills in equity, must
be excluded. If the last of the five days thus computed
be Sunday it also must be excluded, and service on the
Monday thereafter will be good. Baxley v. Bennett, 33
Ga. 146.
Sunday is dies non juridicus, and service cannot be
made, or legal notice given on that day, or the business
or work of ordinary callings done. Sawyer v. Cargile, 72
Ga. 290.
Bill of Exceptions — Tender to Judge. — The Sundays em-
braced in the thirty days, in which a bill of exception is
required to be certified and signed by the presiding judge,
the same being "Statutory time," are not to be excluded.
Wilkinson v. Castellow, 14 Ga. 122. But when the last
day falls on Sunday the following day is superadded. Char-
leston, etc., R. Co. v. Cottonseed Oil Co., 22 Ga. App. 337,
96 S. E. 586.
Same — Service. — In computing the ten days within which
a bill of exceptions should be served, this section is applica-
ble. It follows that where a bill of exceptions is certified
on the 10th day of the month and is served on the 20th day
of the same month, such service is within the ten days pre-
scribed. Mott v. Brunswick Pub. Co., 117 Ga. 149. 43 S. E-
716, disapproved. Rusk v. Hill, 117 Ga. 722, 45 S. E- 42.
Certiorari. — In an application for certiorari, "from and
after the trial," excludes the last day. Jones v. Smith, 28
Ga. 41.
It was held that from June 12 to September 12, more than
three months had elapsed. Barrett & Carswell v. Devine,
60 Ga. 632.
Appea's. — Sunday is not to be counted as one of the four
days within which appeals are allowed to be entered. Neal
v. Crew, 12 Ga. 93.
9. In all interpretations, the courts shall look
diligently for the intention of the General Assem-
bly, keeping in view, at all times, the old law, the
evil, and the remedy. Grammatical errors shall
not vitiate, and a transposition of words and
clauses may be resorted to when the sentence or
clause is without meaning as it stands.
For full treatment, see 10 Cum. Dig. 502; 11 Enc. Dig. 834.
As to intention in construing contracts, see § 4268, par. 5.
Cardinal Rules.. — This section directs that statutes be con-
strued with reference to the intention of the legislature,
and that the old law, the mischief and the remedy be con-
sidered to arrive at that intention. Everett v. Planters'
Bank, 61 Ga. 39; Mott v. Central Railroad, 70 Ga. 680; Bar-
rett & Caswell v. Pulliam, 77 Ga. 552; Price Co. v. Atlanta,
105 Ga. 358, 31 S. E. 619; Hazlehurst v. Seaboard Ry., 118
Ga. 858, 45 S. E- 703; Sullivan v. Curling, 149 Ga. 96, 99
S. E. 533; Georgia Ry., etc., Co. v. Decatur, 29 Ga. App.
653, 116 S. E. 645.
Therefore the intention of the Legislature, when discov-
ered, shall prevail. Akin v. Freeman, 49 Ga. 51.
What Considered in Determining Intention.— To ascertain
[
the intention of the Legislature, after examining the words
of the Act itself, it is necessary to take into view cver>
fact and circumstance that influenced its passage. What the
law was before; the mischiefs against which the law did
not provide; the nature of the remedy proposed; and the
true reason of the remedy; must be considered. Swan v.
State, 29 Ga. 616, 621.
The legislative intent may be gathered from construing
together a Code section and acts affecting it. Commission-
ers, etc. v. Burns, 118 Ga. 112, 44 S. E. 828.
Intention Gathered from Act Itself and Similar Acts. —
In construing a statute, the intention of the Legislature is
a fit and proper subject of inquiry. That intention, how-
ever, is to be collected from the act itself, and other acts
upon the same matter. Ezekiel v. Dixon, 3 Ga. 146.
A statute must be construed with reference to the whole
system of which it forms a part. McDougald v. Dougherty,
14 Ga. 674.
Motive of Legislature. — One proper criterion for determin-
ing the meaning of a legislative enactment is to consider
the general scheme and purport of the proposed legislation.
Pennington v. Douglas, etc., R. Co., 3 Ga. App. 665, 678,
60 S. E. 485.
When Title of Act Looked to. — Nothing is better settled
than that the intention of the General Assembly in the
passage of a law is derivable as well from the caption of
the act as from the body of the act itself. Sovereign Camp
W. O. W. v. Beard, 26 Ga. App. 130, 105 S. E- 629.
But the title is not looked to where the words of the en-
acting clause are clear and positive. Ex parte Simpson, 1
Ga. Ill; Johnson v. Reese, 31 Ga. 601.
Same — Of Amending Act. — The title of an Act amending
a former Act of the Legislature may be looked to, as well
as that of the original Act, to ascertain if the amending
Act has any matter different from what is expressed in the
title. Jones v. Columbus, 25 Ga. 610.
When Language Yie'ds to Intention. — When the inten-
tion is ascertained, it governs, and the mere letter of a
statute must yield to the spirit. Roberts v. State, 4 Ga.
Apir. 207, 60 S. E- 1082. See also Erwin v. Moore, 15 Ga.
361; Demere v. Germania Bank, 116 Ga. 317, 42 S. E. 488;
Ezekiel v. Dixon, 3 Ga. 146. And this is true even though
some of the verbiage may have to be eliminated from 'the
text. Youmans v. State, 7 Ga. App. 101, 103, 66 S. E. 383;
Washington v. Atlantic, etc., R. Co., 136 Ga. 63S, 71 S. E.
1066.
Same — Several Acts on Same Subject. — Where there are
several Acts of the Legislature passed upon the same sub-
ject matter, in construing a particular section of one of
them, where the grammatical construction is doubtful, the
general intent of the Legislature will control both the
literal or strict meaning of words, so as to effectuate the
objects of the law. George v. Board. 33 Ga. 344.
The intention is not to prevail against settled and fixed
ru'es of construction. Choice v. Marshall. 2 Ga. 97.
Conflict between Original and Printed Act. — Where
there is a conflict between the language of an act of the
General Assembly as it is enrolled in the office of the sec-
retary of State and as it appears in the volume published
by the public printer, the former controls. Bass v.
Doughty, 5 Ga. App. 458, 63 S. E- 516.
Rights Growing Out of Contracts Protected. — Where the
meaning of an act is doubtful, it would not be so con-
strued as to impair rights growing out of contracts prior
to its passage. Mitchell v. Wolfe. 70 Ga. 625.
Doubts Resolved in Tax-payer's Favor. — In laws im -
posing taxes, if there be a real doubt whether the in-
tention of the Act was to levy the tax, that doubt should
absolve the tax-payer. Mayor, etc.. Savannah v. Har-
tridge. 8 Ga. 23.
Equitable interpretation is a principle which makes a
statute include a case which, though not within the wonls
of the statute is within the mischief aimed at by the
statute; or exclude a case which, though within the words.
is not within the mischief. Strawbridge v. Mann, 17 Ga.
454.
§ 5. (§ 5.) Meaning of certain words. — The
following meaning shall be given to each of the
following words in all statutes, unless a different
meaning is apparent from the context.
Property includes real and personal property.
Person includes a corporation.
Writing includes printing and all numerals.
Oath includes affirmation.
Signature, or Subscription, includes the mark
of an illiterate or infirm person.
51
1
§ 5
PRELIMINARY PROVISIONS
§ 6
Lunatic, Insane, or Non compos mentis, each
includes all persons of unsound minds.
Justice, when applied to magistrates, means
justice of the peace.
Preceding and Aforesaid mean generally next
before, and Following next after, unless the con-
text requires a different signification.
Month means a calendar month; twenty school
days a scholastic month in public schools.
Year means a calendar year.
Seal shall include impressions on the paper it-
self, as well as impressions on wax or wafers.
With the exception of official seals, a Scrawl, or
any other mark intended as a seal, shall be held
as such.
Highway, or Road, includes bridges upon the
same. (Acts 1838, Cobb, 536; 1896, p. 82, Act
1838, Cobb, 274.
In General. — For meaning of other words and phrases,
see 10 Cum. Dig. 506; 11 Fnc. Dig. 840. For similar pro-
visions in penal code, see § 2 P. C.
Property Distinguished from "Estate." — "Estate" and
"character of estate" have reference to the interest in the
property, which shows that while realty and personalty
are different kinds of property, they are not different
kinds of estates. DeVaughn v. McLeroy, 82 Ga. 687, 10
S. F. 211.
Person. — As to classification of "persons", see § 2159.
For definition of corporation, see § 2188. As to meaning
of terms, "person" or "party", see § 2100.
Same — Includes Both Sexes. — The ordinary signification
of the word "person" is that it includes both sexes.
Brown v. Hemphill, 74 Ga. 795.
Same — Corporations in General. — And it is well settled
that a corporation is included in the word "person," used
in the criminal statute. Penal Code, § 2. It is true that
the doctrine of holding corporations responsible for viola-
tion of penal laws is one developed by gradual evolution,
but it is none the less the law, and is of healthful ne-
cessity and utility. Southern Fxpress Co. v. State, 1 Ga.
App. 700, 702, 58 S. F. 67. See also Collins, etc., R. Co.
v. Short Flectric Ry. Co., 98 Ga. 62, 64, 25 S. F. 929.
Same — Railroads Included. — Railroad companies are in-
cluded in word, "Person." Western, etc., Railroad v.
Turner, 72 Ga. 292. See also Southwestern R. Co. v. Paulk,
24 Ga. 356.
Same — Bank. — Municipality may tax a bank as a person
under this section. Macon v. Macon Sav. Bank, 60 Ga.
134.
Same — Used in Restricted Sense. — "Person" was held to
be used in a restricted sense, and mean only an artificial
person, or corporation, in Comer v. State, 103 Ga. 69, 29 S.
E. 501.
Same — Right to Obtain Supersedeas. — The right to ob-
tain a supersedeas under § 4821, extends to insolvent cor-
porations by virtue of this provision. Collins, etc., R. Co.
v. Short Flectric Ry. Co., 98 Ga. 62, 25 S. F. 929.
Oath. — See 8 Cum. Dig. 43; 9 Fnc. Dig. 781 and references
there given.
Signature or Subscription. — Signature includes mark, even
though the mark is not between the given name and sur-
name. Horton v. Murden, 117 Ga. 72, 43 S. F- 786.
Same — By Illiterate Officer. — Where an officer making a
levy cannot write, an entry thereof written out by another,
in his presence and by his procurement, and signed by him
with his mark is good. Cox V. Montford, 66 Ga. 62.
Same — By Witness. — A witness who signs by his mark,
if so capable of testifying, is just as competent a witness
as one likewise capable of testifying who writes his own
name. Gillis v. Gillis, 96 Ga. 1, 23 S. F. 107.
Lunatic, Insane or Non Compos Mentis. — For full treat-
ment, see 1 Fnc. Dig. 525; 7 Cum. Dig. 396.
When a petition alleges that the insured, at the time he
agreed with the company, was non compos mentis, it al-
leges that he was at the time unable to make any valid
contract. Cason v. Owens, 100 Ga. 142, 28 S. F. 75.
Preceding, Aforesaid and Following. — A different signifi-
cation will be given the words, "Preceding," "Aforesaid"
and "Following," if required by the context and facts of the
case. Simpson v. Robert, 35 Ga. 180.
Month. — As to advertisement of judicial sales, see § 6063.
As to scholastic month, see § 1550.
Same — Authorizing Interest Charge. — In authorizing an
interest charge per month, the statute deals not with days,
but with months, and "month" means a calendar month un-
der this section. Jobson v. Masters, 32 Ga. App. 60, 122
S. F. 724.
Same — Understood to Be of Current Year. — When the
word "month" is referred to, it will be understood to be
of the current year, unless from the connection, it appears
that another is intended. Tipton v. State, 119 Ga. 304, 46
S. F. 436.
Year. — A different meaning of "year" may appear from
the context of an act. See § 3992. Lane v. Tarver, 153
Ga. 570, 113 S. F- 452.
The term "current year," as used in § 3066, refers to the
calendar year, and not an arbitrary business year fixed by
local custom or otherwise. King v. Johnson, 96 Ga. 497,
498, 23 S. F. 500.
This section has no application where the word "year" is
used in a lease contract. Brooke v. Atlanta Woolen Mills,
18 Ga. App. 505, 89 S. F. 598.
Seal and Scrawl. — -For full treatment, see 10 Cum. Dig.
154; 11 Fnc. Dig. 398. For comprehensive treatment of
corporate seals, see 4 Cum. Dig. 178; 3 Fnc. Dig. 647.
As to notorial seal and register, see § 623. As to great
seal of State, see § 213. As to seal of superior court
clerk, see § 4892 par. 13. As to period of limitations on
specialties, see § 4359. As to seal of school-book commis-
sion, see § 1435. As to executive seal, see § 165. As to
necessity of state officers to keep seal, see § 261. As to
seal of board of education, see § 1503.
Same — Ink Scroll on Bond.- — Where a bond was signed
by the party executing it, and opposite his name was an
ink scholl, with the word "seal" written within it, it was
held that it was to be considered a sealed instrument.
Williams v. Greer, 12 Ga. 459.
Same — Intention Recited in Instrument. — To render a
private writing an instrument under seal, it is only nec-
essary that it recite in the body that a seal is used or
contemplated, or that a scrawl or other mark intended as
a seal be annexed or affixed. Stansel v. Corley, 81 Ga.
453, 457, 8 S. F. 868.
Same — Witnessing Clause Alone Insufficient. — "Witness
our hand and seal," does not alone make a note a sealed
instrument, without the addition of a seal or scroll. Will-
helms v. Partoine, 72 Ga. 898.
Same — Same Rule as to Corporations.— The same rule
applies to the seal of a corporation that applies to a nat-
ural person. A scroll under this section may be adopted
by a corporation, either as a common seal or as a seal
for a special purpose. American Inv. Co. v. Cable Co.,
4 Ga. App. 106; Johnston v. Crawley, 25 Ga. 316.
Highway or Road. — For definition of public roads, see
§ 629.
By this provision, the word "road" wherever it appears
in a statute, includes all the bridges thereon, unless the
context requires a different construction. Wright v.
Floyd County, 1 Ga. App. 582, 58 S. F. 72.
§ 6. (§ 6.) Future operation of laws. — Laws
prescribe only for the future; they can not im-
pair the obligation of contracts, nor generally
have a retrospective operation. Laws looking
only to the remedy or mode of trial may apply
to contracts, rights, and offenses entered into or
accrued or committed prior to their passage; but
in every case a reasonable time subsequent to
the passage of the statute should be allowed for
the citizen to enforce his contract, or protect his
right.
I. Impairing Obligation of Contracts.
II. Retrospective Operations.
III. Remedial Laws.
Cross References.
For full treatment of impairment of obligation of con-
tracts, see 7 Cum. Dig. 99; 7 Fnc. Dig. 202. For compre-
hensive treatment of retrospective laws, see 3 Cum. Dig.
924; 3 Fnc. Dig. 365; 10 Cum. Dig. 480; 11 Fnc. Dig. 828.
For treatment of ex post facto laws, see 6 Cum. Dig. 99;
6 Fnc. Dig. 123. For identical provisions in penal code,
see § 3 P. C. For similar provisions in State and Fed-
eral constitutions, see §§ 6389, 6652.
I. IMPAIRING OBLIGATION OF CONTRACTS.
Application of Section. — This section so far as it inhib-
its a State from passing a law impairing the obligation
of contracts, applies to contracts existing at the time of
the enactment of the statute. Roby v. Boswell, 23 Ga.
51; Redd v. Hargroves, 40 Ga. 18, 25. See also Bass v.
[6]
§ 6
PRELIMINARY PROVISIONS
Ware, 34 Ga. 386, 387. And the rule does not depend upon
the extent of the change, any deviation however minute is
within the prohibition. Winter v. Jones, 10 Ga. 190.
Same — To Contracts with State. — A contract entered into
between the State and an individual, is as fully protected
by this prohibition, as a contract between two individuals.
Winter v. Jones, 10 Ga. 190. But where there is no con-
tract on the part of the State, there can, of course, be
no interference. Johnson v. Governor, 17 Ga. 179.
The changing of a county site by the legislature, did not
impair vested rights of citizens. Hamrick v. Rouse, 17
Ga. 56.
Changing municipal tax laws by Act of General Assembly
is not contrary to this section because the change applies to
taxes due at the time of the passage of the Act. DuBignon
v. Brunswick, 106 Ga. 317, 32 S. E. 102.
Franchises. — Where franchises were of a different char-
acter, the one did not infringe on the other. McLeod v.
Savannah, etc., R. Co., 25 Ga. 445.
Legislative Instructions to Officer. — The legislature can-
not, by resolution, change the obligation of a contract made
under a previous act. But if they instruct a public offi-
cer as to his duties under the contract, such legislative ex-
pression of opinion as to what has been done, and the re-
sulting duties of the officer, may be resorted to in deter-
mining the intention of the legislature in passing the act.
Ga. Penitentiary Co. No. 2. v. Nelms, 65 Ga. 68.
An act requiring registration of past matured bonds
neither repudiates bonds, nor takes away any remedy from
the holder, nor impairs the state's obligation to pay any
valid bonds. Gurnee, Jr. & Co. v. Speer, 68 Ga. 711.
A license obtained from the inferior court cannot be af-
fected subsequently by any action of the city. Rome v.
Lumpkin & Underwood, 5 Ga. 447.
Charters to Fire Companies Are Not Contracts and May
Be Abolished.— Bloom v. State, 20 Ga. 443, 449.
Acquiring Title to Crops.— The Act of 1922 (section 3651 (1)
of this Code) which declares all crops to be personalty does
not prevent the purchaser of lands under a security deed,
older than the act, from acquiring title to crops growing
in such lands. Chason v. O'Neal, 158 Ga. 725, 124 S. E-
519.
II. RETROSPECTIVE OPERATIONS.
Definition of Retroactive Statute. — A statute is retroac-
tive in its legal sense which creates a new obligation on
transactions or considerations already past, or destroys or
impairs vested rights. Ross v. Lettice, 134 Ga. 866, 868, 68
S. E- 734.
Usually Forbidden. — Retrospective statutes are forbidden
by the first principles of justice. Mayor, etc., Savannah v.
Hartridge, 8 Ga. 23; Redd v. Hargroves, 40 Ga. 18, 25. See
also Jones v. Rountree, 96 Ga. 230, 232, 23 S. E. 311.
Acts Given Prospective Operation. — "The settled rule for
the construction of statutes, is not to give them a retro-
spective operation, unless the language so " imperatively re-
quires." Moore v. Gill, 43 Ga. 388, 391.
Same — Illustrations. — A repealing act will not be given a
retrospective operation. Dennington v. Roberts, 130 Ga. 494,
61 S. E. 20. And in Jones v. Rountree, 96 Ga. 230, 23 S.
E. 311, it was held that the words "new county," as used
in section 836 of the Code which relates to charging the
administrative of an estate, did not apply to counties ex-
isting at the time the section became effective. Also, leg-
islative acts, will not be so construed where they would ef-
fect a revocation of a will. Redd v. Hargraves, 40 Ga. 18.
In State v. Bradford, 36 Ga. 422, it was held that an act
to prevent smallpox would not be given retroactive effect.
And so in the case of an act for the unification of court
decisions. See Bond v. Munro, 28 Ga. 597. The same rule
was applied, in Girman v. Central R., etc., Co., 1 Ga. 173,
to an act determining the liability of railroads for injury
to stock.
When Valid. — Retrospective laws which are not ex post
facto in their character, and which do not impair the obli-
gation of contracts, are valid. Wilder v. Lumpkin, 4 Ga.
208.
Same — Illustrations. — Registry Acts having a retrospective
operation, have never been considered as falling within in-
hibition against laws impairing the obligation of contract,
provided they allow a reasonable time after their passage
to record existing or antecedent deeds. Tucker v. Harris,
13 Ga. 1. And an act affording additional remedies, though
retrospective, is valid. Thomas v. Hardwick, 1 Ga. 78. See
post, this note, "Remedial Laws," III. An inheritance was
allowed to a colored child, theretofore illegitimate, by a re-
trospective law. Also, an act providing for collection of
taxes on all past contracts of a corporation, was valid. See
Bass v. Columbus, 30 Ga. 845. But a statute of limitations
cannot bar for lapse of time before its passage, however, if
a reasonable time be fixed at which it goes into operation
it will be good. Central Bank v. Solomon, 20 Ga. 408.
III. REMEDIAL LAWS.
Remedial Statutes, although retrospective, are not void,
provided they do not impair contracts or disturb absolute
vested rights, and only go to confirm rights already ex-
isting; and in furtherance of the remedy, by curing de-
fects, and adding to the means of enforcing existing obli-
gations. Searcy v. Stubbs, 12 Ga. 437; Cox v. Berry, 13
Ga. 306; Knight v. Lasseter, 16 Ga. 151. See also Union
Dry Goods Co. v. Ga., etc., Corp., 142 Ga. 841, 83 S. E. 946.
Remedy within Legislative Control. — The remedy — the
mode and manner of enforcing contracts is no part of an ob-
ligation, and is within the legislative control. Carey v.
Giles, 9 Ga. 253.
There is a difference between the obligation of a con-
tract, which cannot be impaired, and the remedy to en-
force it, which generally may be left to the sound discre-
tion of the legislature. Griffin v. McKenzie, 7 Ga. 163.
Same — Changing Remedies. — There is no constitutional im-
pediment to prevent the legislature from changing remedies,
provided they are not so impaired as to render them nuga-
tory. Beyond this restriction, parties have no vested rights
in remedies. Lockett v. Usury, 28 Ga. 345.
"So long as the State undertakes to furnish remedies, she
may vary or modify them at pleasure, if she does not de-
stroy their substantive character." Cutts v. Hardee, 38
Ga. 350, 356. See also Gardner v. Georgia R., etc., Co., 117
Ga. 522, 43 S. E. 863.
An act taking away the right of an employer against par-
ties interfering with the contract of employment, does not
impair the obligation of the contract. Caldwell v. O'Neal,
117 Ga. 775, 45 3. E. 41.
Repealing Statute Merely Regulating Procedure. — A re-
pealing statute, which did not deprive the defendant in ex-
ecution of any substantial right but only regulated the pro-
cedure of the court, in which he could acquire no right, is
not within the inhibition against the passage of retroactive
laws. Baker v. Smith, 91 Ga. 142, 16 S. E- 967; Pritchard
v. Savannah Railroad Co., 87 Ga. 294, 13 S. E. 493.
An Act denying all remedy on a contract would impair
its obligation and be void. West v. Sansom, 44 Ga. 296.
Act Enforcing Stockholders' Liability.— Where stockhold-
ers' liability is fixed by one act, and a subsequent act pro-
vides that such liability' shall be considered as an asset of
the bank and enforced by the receiver, the latter act is
remedial in its nature, does not affect any vested right of
the creditor, and is applicable in this case. Moore v. Rip-
ley, 106 Ga. 556, 32 S. E. 647.
An act providing for the cost of paving, passed after the
act providing for the paving, is not unlawful or objection-
able. Georgia Railway, etc., Co. v. Decatur, 29 Ga. App.
653, 655, 116 S. E. 645. See also, Allen v. Schweigert, 110
Ga. 323 (35 S. E- 315); Mills v. Geer, 111 Ga. 275 (36 S. E.
673, 52 L. R. A. 934); Ross v. Lettice, 134 Ga. 866 (68 S. E.
734, 137 Am. St. R. 281).
Where New Statute a Substantial Re-enactment of Old. —
As a general rule, the repeal of a statute without any res-
ervation takes away all remedies given by the repealed
statute. But where a new statute is a substantial re-en-
actment of an old one, and expressly recognizes and makes
provision in regard to rights and remedies which accrued
under it, the general rule is not applicable and the reme-
dies remain in force. Lanham & Sons Co. v. Rome, 136 Ga.
398, 403, 71 S. E. 770.
Act Changing Rule of Evidence. — An act which merely
changes a rule of evidence is within the sphere of ordinary
legislative competency. Slaughter v. Culpepper, 35 Ga. 25.
Claims arising before the passage of an act respecting the
remedy, may be collected under it. Printup v. Trammel,
25 Ga. 240.
§ 7. (§ 7.) Ignorance of law. — Laws, after
promulgation, are obligatory upon all inhabitants
of this State, and ignorance of the law excuses
no one.
For full treatment of this subject, see 9 Enc. Dig. 368.
As to persons to whom state laws are applicable, see §§22,
2172, 5531. As to necessity of persons taking notice of pow-
ers of public officers, see § 303.
General Rule. — No man can be excused upon a plea of
ignorance of the law, for disobeying its injunctions, or vio-
lating its provisions, or abiding his just contracts. He is
presumed to know the law, and if he does not know it,
he is equally presumed to be delinquent. Culbreath v. Cul-
breath, 7 Ga. 64, 71. And where a plea amounts to noth-
ing but ignorance of the law, the plea is bad. Jenkins v.
German Lutheran Congregation, 58 Ga. 125.
Mere ignorance of law on the part of one who, with full
knowledge of all the facts, voluntarily takes steps with re-
gard thereto which operates to his prejudice, affords no
ground for granting him relief against the consequences of
[7]
§ 8
PRELIMINARY PROVISIONS
§ 8
his own folly, though he may in good faith have labored
under a misapprehension as to the legal effect of the course
he elected to pursue. Atlanta Trust, etc., Co. v. Nelms,
116 Ga. 915, 43 S. E. 380.
Exception to General Rule.— Ignorance of the law is a
sufficient ground to justify the interposition of equity in
some cases. Brewton v. Smith, 28 Ga. 442. But in Moore
v. Atlanta, 70 Ga. 611, it was held that ignorance of the
law does not commend a suitor in equity, especially where
injunction is sought.
Distinction between Ignorance and Mistake.— Ignorance
implies passiveness; mistake implies action. For further
distinction, see Culbreath v. Culbreath, 7 Ga. 64, 70.
The ignorance of a-sheriff as to what was his duty can
not protect him from liability for the neglect to perform
that duty. York v.' Clopton, 32 Ga. 362.
§ 8. (§ 8.) Lex loci. — The validity, form, and
effect of all writings or contracts are determined
by the laws of the place where executed. When
such writing or contract is intended to have effect
in this State, it must be executed in conformity
to the laws of this State, excepting wills of per-
sonalty of persons domiciled in another State or
country.
For full treatment, see 3 Cum. Dig. 799 et seq. ; 3 Enc.
Dig; 241 et seq. As to law governing contracts bearing
interest, see § 3430. As to law governing contracts gen-
erally, see § 4240. As to law governing foreign will devising
personalty, see §§ 3865,, 3877. As to necessity of foreign
assignments, conforming to law of this state, see § 3239.
As to comity of states, see § 9.
Rule as to Contracts Generally.— The lex loci governs as
to the nature, construction and obligation of contracts.
Cox v. Adams, 2 Ga. 158; Missouri State Iyife Ins. Co.
v. Lovelace, 1 Ga. App. 446, 58 S. E- 93.
As a general principle, the lex loci applies only to the
interpretation of contracts, and the remedy on them must
be prosecuted according to the laws of the country in which
the action is brought. Joice v. Scales, 18 Ga. 725; Cham-
blee v. Colt Co., 31 Ga. App. 34, 119 S. E. 438; Davis v.
DeVaughn, 7 Ga. App. 324, 66 S. E- 956.
The laws which exist at the time and place of the mak-
ing of a contract, enter into and form a part of it. West
End, etc., R. Co. v. Atlanta St. R. Co., 49 Ga. 151.
Same— Where Parties Contemplate Another Place of Per-
formance.—The place where the contract is entered into,
is not to be exclusively considered, if the parties had in
contemplation another place, at the time of the contract;
the laws of the latter will be preferred in the construction
of the contract. Herschfeld v. Dexel & Co., 12 Ga. 582.
See also Vangant, etc., Co. v. Arnold, 31 Ga. 210; Dunn v.
Welsh, 62 Ga. 241.
A contract made and to be performed in New York, will
be enforced by the courts of this state according to the
legal status it would occupy in New York. But the law
of that state must be put in evidence before it can be ap-
plied in this state. Champion v. Wilson & Co., 64 Ga. 184.
Contract between Indiana Manufacturer and Georgia
Dealer. — Under this section, a contract between an In-
diana manufacturer and a Georgia dealer, whereby the
former was to ship goods to the dealer, was a Georgia,
and not an Indiana contract and must be executed in ac-
cordance with the laws of Georgia to be valid there against
the trustee of the dealer for bankruptcy. In re Bondurant
Hardware Co., 231 Fed. 247.
Contracts Bearing Interest. — On contracts made in one State,
to be performed in another, if they bear interest, the law
of the State where they are to be performed governs the
rate of interest to be paid. Vinson v. Piatt, 21 Ga. 135;
Thomas v. Clarkson, 125 Ga. 72, 54 S. E. 77.
Contract of Shipment. — If goods are shipped in one State
on a through contract, to be transported by a common car-
rier and delivered in another (omitting any question of pub-
lic policy), the general rule is, that, in the absence of any-
thing to show a contrary intent, the validity, form, and
effect of the contract of shipment will be determined by
the laws of the State where the contract was made and
partly to be performed. Southern Express Co. v. Hanaw,
134 Ga. 445, 67 S. E. 944.
Questions of Marriage, Legitimacy, and Succession to
Property. — While the lex loci, as a general rule, governs
the construction of contracts, questions of marriage, of
legitimacy, and the rights of succession to property, it is
subject, in practice, to the great controlling idea, that it
will not be enforced, by comity, if it involves anything im-
moral, contrary to general policy, or violative of the con-
science of the State called on to give it effect. Eubanks
v. Banks, 34 Ga. 407.
[
Local Limitation Laws Applied. — Where a suit upon a
written contract executed and to be performed in another
State is brought in a court of this State, the question
whether or not the plaintiff's right of action is barred,
being one relating exclusively to the remedy, must be de-
termined with reference to the limitation laws of Georgia.
Obear v. First National Bank, 97 Ga. 587, 25 S. E- 335.
Surety's Contract. — The lex fori, and not the lex loci,
governs as to the remedy in the Courts of this State in a
suit to enforce the performance of a contract against a
surety thereon, made in another State. Toomer v. Dick-
erson, 37 Ga. 428.
Representations in Insurance Contract. — The materiality
of representations made by the insured in his application,
under the laws of Georgia, is a question for the jury to de-
cide. The manner in which this question shall be deter-
mined, being a matter affecting the remedy only, and not
the "validity, form, or effect of the contract," is to be
controlled by the lex fori, and not by the lex loci contractus.
Massachusetts Ben. Life Ass'n v. Robinson, 104 Ga. 256, 30
S. E. 918.
Foreign Instrument Conveying Property in This State. —
Where an instrument is executed and payable in the State
of North Carolina by parties all residing in that State, pur-
porting to convey certain standing timber in this State to
one of the parties to the contract, the law of the place
where the property is situated (the lex loci rei sitae) con-
trols, in order to determine the character of the instru-
ment, whether it is a deed to secure a debt, as in the pres-
ent case, or whether it is a mortgage. Sims v. Jones, 158
Ga. 384, 123 S. E. 614.
The right of priority forms no part of the contract; it is
extrinsic, or rather, a personal privilege, dependent on the
law of the place where the property lies, and where the
Court sits which is to decide the cause. Watts v. Kilburn,
7 Ga. 354, 356.
An agreement for arbitration being made in Tennessee,
its validity and construction in the Courts of Georgia, de-
pend on the laws of Tennessee. Green v. East Tennessee,
etc., Railroad, 37 Ga. 456.
Foreign Assignments. — The courts of Georgia will not re-
gard an assignment made in another state, which,* as to
assets here contravenes the law or declared public policy of
the state. Strieker & Co. v. Tinkham, 35 Ga. 176; Miller
v. Kernaghan, 56 Ga. 155; Birdseye v. Underhill, 82 Ga".
142, 7 S. E. 863.
The situs of a debt follows the creditor, and where the
debtor and creditor reside in different States, the law of
the domicile of the creditor prevails. Birdseye v. Under-
hill, 82 Ga. 142, 7 S. E- 863.
Negotiable Paper. — When a promissory note is made in
South Carolina, payable there, it is governed by the laws
of that state. Goodrich v. Williams, 50 Ga. 426.
Same — Sunday Note Not Enforceable. — As the laws of this
State forbid any' transaction of any business, trade or call-
ing on Sunday, a note made upon that day, in pursuance
of trade or business, will not be enforced by the courts of
this State under the laws of this State, as such contract
is void. Hill v. Wilker, 41 Ga. 449.
Same — Each Indorsement a New Contract. — Each indorse-
ment is a new contract, and the contract of indorsement
as to its nature, construction and interpretation is gov-
erned by the lex loci contractus; and the remedies thereon
by the laws of the place where the suit is instituted. Cox
v. Adams, 2 Ga. 158; Levy v. Cohen, 4 Ga. 1.
Same — Foreign Limitation Statute. — The Alabama statute
of limitations is not applied in Georgia to a note made in
Alabama. Thomas v. Clarkson,' 125 Ga. 72, 54 S. E- 77.
Same — Foreign Judgment Conclusive. — Where judgment
was obtained in a foreign state on a note signed in that
state, such judgment is conclusive, in a subsequent suit
commenced in Georgia by attachment, as to the indebted-
ness of the defendants. Hope v. First National Bk., 142
Ga. 310, 82 S. E- 929.
Wills — Of Realty. — A will of land is governed by the lex
loci. Key v. Harlan, 52 Ga. 476; Mechanics', etc., Bank
v. Harrison, 68 Ga. 463 ; Guerard v. Guerard, 73 Ga. 506.
Same — Of Personalty. — Wills of personalty are governed
by the party's domicile, but the realty by the lex loci.
Latine v. Clements, 3 Ga. 426; Grote v. Pace, 71 Ga. 231.
Same — Both Realty and Personalty. — A will conveying
both realty and personalty, executed in a foreign State ac-
cording to its laws and there admitted to probate, may in
like manner be admitted to probate in this State upon pro-
duction of an exemplification of the probate proceedings
duly certified, notwithstanding such will may not have been
executed in conformity to the laws of this State. Such an
instrument, however, is not a good will in so far as it
attempts a devise of realty located in this State. Knight
v. Wheedon, 104 Ga. 309, 30 S. E- 794.
Lex Loci Applied in U. S. Courts. — The rule of the lex
loci will be applied in the U. S. courts sitting in Ga., and
]
PRELIMINARY PROVISIONS
§ 9
acting upon an instrument made and to be performed m
that State. Martin v. Bartow Iron Works, 35 Ga. 320.
Presumption That Common Law in Force in Foreign
State.— In the absence of allegations as to what the law of
a foreign state is, our courts will presume that the com-
mon law is of force in that state. Selma, etc., R. Co. v.
Lacy, 43 Ga. 461.
§ 9. (§ 9.) Comity of States. — The laws of
other States and foreign nations shall have no
force and effect of themselves within this State,
further than is provided by the Constitution of
the United States, and is recognized by the
comity of States. The courts shall enforce this
comity, until restrained by the General Assembly,
so long as its enforcement is not contrary to the
policy or prejudicial to the interests of this State.
I. General Consideration.
II. When Doctrine of Comity Invoked.
III. When Doctrine of Comity Not Invoked.
IV. Pleading Foreign Law.
Cross References.
For full treatment, see 3 Cum. Dig. 793; 3 Fmc. Dig. 239;
6 Cum. Dig. 317; 6 Fmc. Dig. 285. As to right of citizens
of foreign states to sue in this state, see § 2174. As to
recognition given foreign corporations, see § 2203. As to
foreign assignments, see § 3239. As to subjecting foreign
assignments to attachment, see § 5072. As to comity to
foreign insurance companies, see § 2449. As to foreign at-
torneys, see §§ 6220, 4948, 4949. As to licenses issued by
foreign medical boards, see § 1692. As to what law ap-
plied to writings, see § 8.
I. GENERAL CONSIDERATION.
Nature of Comity. — Comity is reciprocity. It can not be
that the laws of the several states of the Union differ so
materially, now, in policy or in the nature of their institu-
tions, as to require that unquestionable defensive right of
every sovereignty, that of protecting its citizens against
the operation of the laws or doctrines of another state, in-
compatable with their safety, or injurious to their inter-
est. Jackson v. Johnson, 34 Ga. 511.
When Comity Yields to Positive Law. — Where the lex
contractus and the lex fori, as to conflicting rights acquired
in each, come in direct collision, the comity of nations
must yield to the positive law of the land. Watts v. Kil-
burn, 7 Ga. 354.
II. WHEN DOCTRINE OF COMITY INVOKED.
See post, this note, "When Doctrine of Comity Not In-
voked," III.
General Rule. — The laws of one State have force in the
territory of another, as long as they do not come in con-
flict with the power or right of that State, or of any of its
citizens. Sanford v. Thompson, 18 Ga. 554.
Reciprocity Is Comity. — The courts of this State will not
exclude Alabama suitors, so long as the courts of that State
do not exclude Georgia suitors. Only in this sense is the
expression "reciprocity is comity" applicable to causes of
action springing from wrongful deaths occurring in Ala-
bama. Southern R. Co. v. Decker, 5 Ga. App. 21, 62 S.
E. 678.
Under the comity of states, a citizen and resident of Ala-
bama cannot claim the benefit of our exemption laws as
against a garnishment when his property happens to be
seized on process here. In this respect "reciprocity is com-
ity" according to this section. Kyle & Co. v. Montgomery,
73 Ga. 337, 345.
Applying Common Law of Foreign State. — In the absence
of statute, the courts of Georgia will apply the common
law of a foreign state as shown by the court constructions
of the highest judicial tribunals of that state. Atlanta,
etc., R. Co. v. Tanner, 68 Ga. 384. But see, Krogg v. At-
lanta, etc., R., 77 Ga. 202, where it is held that the courts
of Georgia will- not be bound by the interpretations of the
points of a foreign state upon the common law.
Contract Made in Foreign State. — "Whenever a contract
made in a place outside of the territorial jurisdiction of
this State is sought to be enforced in this State, courts
here will enforce the contract and give effect to the laws
of the place in which it was executed, so far as that can
be done without violating the law of this state or its es-
tablished policy." Massachusetts Ben. Life Ass'n v. Rob-
inson, 104 Ga. 256, 285, 30 S. E. 918.
Judgment of Foreign State Construing Charter. — A judg-
ment rendered by the courts of a state in which a corpo-
ration is chartered, construing such charter with respect
to the powers conferred therein, will be followed by the
courts of this state. Clark v. Turner, 73 Ga. 1.
L;miting Carrier's Liability.— So far as stipulations of a
contract limit the common-law liability of the carrier as
an insurer, or for losses occurring by unavoidable accident,
they will be enforced by the courts of this State; but in
such a case, it being contrary to the public policy of this
State to allow a common carrier, even by express oontract,
to make an arbitrary limitation upon its liability for neg-
ligence of its agents or servants, stipulations to that effect
will not be enforced. Southern Express Co. v. Hanaw, 134
Ga. 445, 67 S. E- 944.
When Receiver May Sue in Foreign Jurisdiction. — While
a chancery or statutory receiver can not sue in the courts
of a foreign jurisdiction by virtue of his. appointment alone,
he can do so when he is expressly authorized by statute to
sue, or when he is expressly or by necessary implication
vested with title, or when he is made a quasi- assignee or
representative of creditors. Bullock v. Oliver, 155 Ga. 151,
116 S. E- 293. See post, "When Doctrine of Comity Not
Invoked," III.
Governor Surrendering Fugitives. — It is the Governor's
imperative duty, under the supreme law of the land, to
surrender up fugitives from justice to the authorities of the
state whose laws have been violated, having jurisdiction
of the crimes. Johnston v. Riley, 13 Ga. 97.
A marriage settlement, executed between persons who
were then and continued to be citizens of South Carolina,
applied to lands situated in Georgia according to South
Carolina inheritance laws. Brown v. Ransey, 74 Ga. 210.
Making Foreign Citizen Party to Georgia Suit. — By com-
ity, the citizen of a foreign state, cannot be made a party
to a suit in Georgia, so as to be estopped by a judgment
against him, without his consent. Dearing v. Bank, 5 Ga.
497.
Same — Administrator and Sureties. — If an administrator,
appointed in Alabama, together with the securities on his
bond, become residents of this state, they are liable to be
sued here on a decree rendered in this state on a bill filed
by the distributees for an account and settlement. John-
son v. Jackson, 56 Ga. 326.
Distribution of Assets of Deceased. — The assets of the
deceased should be applied to the payment of debts, or be
distributed amongst the next of kin, by the courts of this
state, according to the law of the state where such rep-
resentatives were appointed. This is the comity of states
as recognized by this section. Johnson v. Jackson, 56 Ga.
326.
Property in Foreign State Liable to Seizure in This State.
— -Where property subject to a lien of a judgment, in this
state was taken to a foreign state and sold to an inno-
cent purchaser, the comity of the two states is not vio-
lated by a judgment which holds the property liable to
seizure upon the execution, on returning into this state.
Hammond v. Stovall, 17 Ga. 491.
The right and disposition of personalty is to be governed
by the law of the domicile of the owner, and not the law
of the location of the property. Grote v. Pace, 71 Ga. 231.
See § 8.
III. WHEN DOCTRINE OF COMITY NOT INVOKED.
See ante, this note, "When Doctrine of Comity Invoked,"
II.
Generally. — As exceptions to the general rule, a foreign
law will not be enforced if it is penal only and relates to
the punishing of public wrongs as contradistinguished from
the redressing of private injuries, or if it contravenes our
established public policy, or the recognized standards of
civilization and good morals; and this exception on account
of the contravention of public policy of the State is some-
times invoked where the foreign statute is designed to re-
dress an injury, but prescribes a form of redress which is
radically dissimilar to anything existing in our own system
of jurisprudence. Southern R. Co. v. Decker, 5 Ga. App.
21, 25, 62 S. E. 78; Eubank v. Bank, 34 Ga. 407; Reeves v.
Southern R. Co., 121 Ga. 561, 565, 49 S. E. 674.
Not Required to Enforce What Is Not Law. — Our courts
are not required by comity to enforce what is not law in
the other state. Tennessee v. Virgin, 36 Ga. 388.
Acts of Foreign Legislature. — It is not competent for any
foreign legislature to prescribe what laws shall be recog-
nized and enforced in the courts of this State, even though
the law as to which cognizance is sought to be excluded is
a statute of the State whose legislature seeks to create the
exclusion. Southern R. Co. v. Decker, 5 Ga. App. 21, 62
S. E. 678.
Provisions of Will. — Our laws will not enforce the
provisions of a will, made in another State, which are di-
rectly contrary to the declared policy of this State; but the
judgment of a competent tribunal, as to such will, where
the will was executed, will be respected by the courts of
this State. Caruthers v. Corbin, 38 Ga. 75.
[9]
§ io
PRELIMINARY PROVISIONS
§ 10
In Aid of An Illegal Award.— The doctrine of comity of
states can not be invoked in aid of an award, where an
illegal transaction was submitted to arbitrators. Benton v.
Singleton, 114 Ga. 548, 40 S. E. 811.
Married Woman as Surety.— The statute law of a foreign
state, providing that a married woman is liable upon her
contract of suretyship, will not be enforced in this State
under this section. Sally v. Bank, 25 Ga. App. 509, 103
S. E- 798; Ulman, etc., Woolen Co. v. Magill, 155 Ga. 555,
117 S. E. 657.
Receiver Bringing Suit in Foreign State.— The principles
of comity do not apply to a suit by a chancery receiver in
a foreign jurisdiction. Nor to such a suit by a statutory
receiver unless the statute under which he is appointed
vests title in him to the property he represents. Oliver v.
Bullock, 28 Ga. App. 446, 111 S. E. 680. See ante, this note,
"When Doctrine of Comity Invoked," II.
Bringing Foreign Administrator to Account. — This State
has no jurisdiction to bring a foreign administrator to ac-
count in this State, where he is visiting here on business.
Jackson v. Johnson, 34 Ga. 511.
Extraterritorial Service of Process. — No state has au-
thority to execute its process without its own limits, and
can not, therefore, effect service upon a foreign citizen.
Bearing v. Bank, 5 Ga. 497.
IV. PLEADING FOREIGN LAW.
Foreign Law Must Be Pleaded and Proved.— Where a
.party seeks to rely on the law of another State as fur-
nishing the basis for a right of recovery or defense dif-
ferent from what it would be under the laws of this State,
or the common law, the law of such foreign State should
be pleaded and proved. Southern Express Co. v. Hanaw,
134 Ga. 445, 67 S. E. 944. See 6 Cum. Dig. 317.
§ 10. (§ 10.) Waiver of law. — Laws made for
the preservation of public order or good morals
can not be done away with or abrogated by any
agreement; but a person may waive or renounce
what the law has established in his favor, when
he does not thereby injure others or affect the
public interest.
For full treatment of this subject, see 11 Cum. Dig. 416:
12 Enc. Dig. 706; 1 Cum. Dig. 749 and references there
given. As to waiver in criminal cases, see notes to §
5 P. C; 4 Cum. Dig. 395; 4 Enc. Dig. 15. As to varia-
tion of general laws by consent of the affected parties,
see § 6391. As to waiving process and service, see § 5561.
As to waiver of inspection and analysis of fertilizer, see
§ 1794. As to homestead waiver, see §§ 3413, 6584, 6586.
Application of Section. — This ancient rule is applicable
to all the private relations in which men may place them-
selves towards each other. Western, etc., R. Co. v. Bishop,
50 Ga. 465.
Implied Waiver. — An implied waiver is not more effica-
cious and is not to be more highly regarded than an ex-
press waiver in writing. Pittman v. Elder, 76 Ga. 371.
What Amounts to Waiver — Hearing on Sunday. — To in-
sist on a hearing upon Sunday, and to obtain it and then
give bail, is to waive a legal hearing; and waiver is per-
mitted by this section. Weldon v. Colquitt, 62 Ga. 449.
Same — Failure to Object to Motion for New Trial. — Fail-
ure to object to motion for a new trial, for not filing during
term, amounts to a waiver. Moore v. Rosser, 76 Ga. 329.
The filing of a motion for new trial is not waived by con-
sent to continuance of hearing. Hilt v. Young, 116 Ga.
708, 43 S. E. 76.
Same — Refusal to Pay Damages on Oral Demand. — The
refusal of a telegraph company to pay damages on oral de-
mand, on the ground of nori-liability, waives formal de-
mand in writing. Hill v. Western Union Tel. Co., 85 Ga.
425, 11 S. E. 874. And the agent of such company is a
competent party to waive. Hill v. Western Union Tel. Co.,
85 Ga. 425, 11 S. E. 874.
Same — Failure to Object to Jurisdiction. — Where the jus-
tice of a district in which the defendant resided was dis-
qualified, and suit was brought, without objection, in an-
other district, the presiding justice of which had jurisdic-
tion of the subject matter, the defendant thereby waived
objection to the jurisdiction of his person. Dozier v. Al-
len, 65 Ga. 255.
Same — Omission to Take Exception. — An omission to take
an exception to a ruling amounts to a waiver under this
section. Hunt v. Travelers Ins. Co., 136 Ga. 766, 72 S.
E. 32.
The right of formal arraignment and plea will be con-
clusively considered as waived, under this section, where
the defendant goes to trial before the jury on the merits,
and fails, until after verdict, to bring to the attention of
the court that he has not been formally called upon to en-
ter a plea to the indictment. Waller v. State, 2 Ga. App.
636, 58 S. E. 1106; Harris v. State, 11 Ga. App. 137, 74 S.
E. 895; Perry v. State, 19 Ga. App. 619, 91 S. E. 939; Brown
v. State, 19 Ga. App. 619, 91 S. E. 939; Caswell v. State,
27 App. 76, 107 S. E. 560.
What May Be Waived in General. — An irregularity may
be waived, but not a complete defect. Beall v. Blake, 13
Ga. 217.
The right to have a receipt of an insurance company un-
der seal may be waived. American Life Ins. Co. v. Green,
57 Ga. 469.
Extent of Waiver. — A law cannot be waived so as to make
an experimental case. Habersham v. Wetter, 59 Ga. 11.
A homestead waiver is good, in a mortgage by the hus-
band as against the wife. Burns v. Georgia, 61 Ga. 192.
See also Mathis v. Western Union Tel. Co., 94 Ga. 338, 346,
21 S. E. 564, 1039, dissenting opinion. Allen v. Frost, 59
Ga. 558.
Right to Just Compensation Waived. — The owner of land
is entitled to just compensation before it can be taken for
public use; if he sees fit to waive his right and sell for
the value of the property thus seized and appropriated, he
can do so. Rome v. Perkins, 30 Ga. 154.
Waiver as to Swearing Arbitrator. — Parties to an agree-
ment to submit their differences to an arbitration (not stat-
utory) may expressly waive that the arbitrator be sworn,
even if, under the terms of the submission, the arbitrator
is required to be sworn. Southern Live Stock Ins. Co. v.
Benjamin, 113 Ga. 1088, 39 S. E. 489.
Irregularities in tax returns may be waived, by pointing
out property on which fi. fa is to be levied. National Bank
v. Danforth, 80 Ga. 55, 7 S. E. 546.
Time as Essence. — Although time is of the essence of the
contract, it may be waived. Moody v. Griffin, 60 Ga. 460.
See also Moxley v. Kinloch, 80 Ga. 46, 7 S. E. 123.
The pleadings cannot be waived by consent of the parties.
This rule is applicable to courts of equity. Central Bank
v. Johnson, 56 Ga. 226.
Waiving Copy, Process and Filing. — A defendant when
sued may acknowledge service, and waive copy, process and
filing in office before the session of the court, and he will
not afterwards as against the plaintiff, be heard to object
that the writ was not filed twenty days before court. Stead-"
man v. Simmons, 39 Ga. 591.
An endorser sued in the same suit with the maker of a
promissory note, and residing in a different county, may
waive the issuing of a second original and process, and his
waiver will bind him. Humphries v. McWhorter, 25 Ga. 37.
Filing Brief of Evidence Waived. — Where the brief of the
evidence is not filed by day set in vacation, the subsequent
acts of the parties may waive. Moxley v. Kinloch, 80 Ga.
46, 7 S. E. 123. See also Hilt v. Young, 116 Ga. 708, 43 S.
E. 76.
What May Not Be Waived. — Where the public has an in-
terest in a legal requirement, it may not be waived by the
parties under this section. Hilt v. Young, 116 Ga. 708, 43:
S. E. 76.
Same — Jurisdiction of Court. — In a suit for divorce juris-
diction of the court can not be waived so as to permit a
suit for divorce to be brought in a county other than that
of the residence of the defendant. Odum v. Odum, 132
Ga. 437, 64 S. E. 470; Watts v. Watts, 130 Ga. 683, 61 S.
E. 593.
Same — Exemption to Garnishment. — A contract, either
specific or general, by which a debtor attempts to waive
his exemption and to make his wages, earned as a laborer,
subject to garnishment is void and not enforceable. Tra-
ders' Inv. Co. v. Macon R., etc., Co., 3 Ga. App. 125, 59
S. E. 454. See also Green v. Watson, 75 Ga. 471.
Same — Statutory Notice. — Where a promissory note con-
tains an obligation to pay attorney's fees, the statutory no-
tice which the plaintiff is required to give to the defendant
as a condition precedent to his right to recover attorney's
fees cannot be waived in the note, and the attempt- to
waive it therein is unenforceable and of no effect. Miller
v. Roberts, 9 Ga. App. 511, 71 S. E. 927.
A waiver, by relatives, of notice of proceeding to inquire
as to sanity of a party, is ineffectual. Yeoman v. Williams,.
117 Ga. 800, 45 S. E. 73.
Same — Penalty or Fine — General Rule. — The rule (of this
section) seems to be that where the public, or a portion
thereof, are interested in a fine or penalty, the person or
informer who brings the action cannot settle or compound
with the defendant so as to deprive the public of its inter-
est therein. 18 Am. & Eng. Ency. La"w, 281, and authori-
ties cited. But where the penalty or fine goes alone to the
informer or person who institutes the action therefor, he
may settle or compound with the defendant, or withdraw
his suit, or waive his right to recover the same. Mathis
v. Western Union Tel. Co., 94 Ga. 338, 345, 21 S. E. 564,
1039.
[10]
§ 11
PRELIMINARY PROVISIONS
§ 14
Same — Same — Trial by Jury. — Whatever may be the de-
cisions in other states as to the rights to waive trial by
jury in cases of misdemeanor, we do not think there can
be any doubt that the defendant had this right under out-
law. Logan v. State, 86 Ga. 266, 268, 12 S. E. 406.
Same — Same — Minor Rights and Privileges. — As the pris-
oner may waive even a trial itself, and be capitally pun-
ished upon his own confession of guilt, he may waive every
minor right or privilege. The greater includes the less, or
the whole the parts. Sarah v. State, 28 Ga. 576; Logan v.
State, 86 Ga. 266, 12 S. E. 406; Vaughn v. State, 88 Ga. 731,
735, 16 S. E. 64.
§ 11. (§ 11.) Local laws. — If there is a law
in force at the time of the adoption of this Code,
having entirely a local application, such local law
is not repealed by this Code, unless so expressly
declared.
As to force of local and private acts, see § 6605. As to
local laws in new counties, see § 844.
Section 32 is to be construed with section 31 and this sec-
tion, and in so considering it, it did not operate to repeal
the Act of 1829, p. 27, which declared that the jurisdiction
of Butts County is extended over the Ocmulgee river, and
islands on said river, adjoining said county of Butts. Jas-
per County v. Butts County, 142 Ga. 576, 83 S. E. 217.
§ 12. (§ 12.) Bonds of public officers.— All
bonds taken from public officers shall be kept in
the places specified by law, and copies thereof
shall be furnished to any person desiring them.
Suits thereon may be brought by any person ag-
grieved by the official misconduct of the officer,
in his own name, in any court having jurisdiction
thereof, without an order for that purpose. Acts
1853-4, p. 57.
For full treatment of suits on bonds of public officers,
see 9 Cum. Dig. 681; 10 Enc. Dig. 691. For more comnre
hensive treatment of actions on sheriffs' and constables'
bonds, see 10 Cum. Dig. 321; 11 Enc. Dig. 631. As to re-
cording bonds, see § 292. As to measure of damages on
bonds, see § 299. As to penalties on bonds, see § 4391. As
to punishment of officers for default, see § 5351. As to
whom official bonds are payable, see § 278. As to judgment
on bonds, see § 5940.
In General.— An order of the Superior Court was for-
merly necessary before suit could be brought on a sheriff's
bond. Myrick v. Hicks, 15 Ga. 155. Now, no preliminary
recovery is requisite before an injured party can bring
suit. McCollugh v. Heind, 16 Ga. App. 484, 85 S. E. 673.
Section Not Applicable to Municipal Bonded Officers. —
The provisions embraced in this section were intended to
be applicable only to the public officers of this State who
are required by general law to give bonds for the faithful
performance of duties they owe to the public at large.
This section is not, therefore, to be regarded as having any
application whatever to a bonded officer of a municipality
who is required by special legislation, relating to that mu-
nicipality alone, to give such a bond as the mayor and
council may deem necessary to the proper protection of the
city itself. Alexander v. Ison, 107 Ga. 745, 747, 33 S. E.
657.
Any Person Aggrieved May Bring Action.— Suit upon the
bond of a constable may be brought in the name of any
person aggrieved by the official misconduct of the officer,
against him and his sureties. McCain v. Bonner, 122 Ga.
842, 51 S. E. 36; McCollough v. Hand, 16 Ga. App. 484, 85
S. E. 673.
Same — Suit by Ex-Sheriff. — A person who was sheriff, but
ceased to be, had a legal right to bring suit on a coroner's
bond, as being the person aggrieved by the coroner's neg-
lect, either in his own name individually or for the use of
anyone he might designate. Harrell v. Emanuel, 27 Ga.
App. 546, 109 S. E. 294.
Same — Heirs Wrongfully Evicted. — The sheriff knowingly
made a void levy on land under an execution based on a
dormant judgment, sold the property, and evicted the heirs
therefrom, this showed a right of action by the heirs, and
under this section, such heirs could bring the suit in their
own names on the official bond of the sheriff. Harris v.
Black, 143 Ga. 497, 85 S. E. 742.
Same— Sheriff Failing to Pay Over Surplus from Sale. —
Construing this section and § 13 in connection with sec-
tion 298 of the Civil Code, any person aggrieved by the fail-
ure of a sheriff to pay over to him the overplus remaining
from the sale of his property, aft^r the satisfaction of a
fi. fa., may maintain an action against the sheriff and the
sureties upon his bond, where it appears that the sheriff
acted under the bond, gave no other official bond, and
that the cause of action originated in the breach by the
sheriff of his official duty. Kirkland v. Southerland, 11
Ga. App. 538, 75 S. E. 832.
Sheriff Neglecting to Serve Process, etc. — Damages. — For
the sheriff to neglect to serve a declaration and process and
make return of service, when by law it is his duty to serve
and return, is a breach of his official bond; and any person
aggrieved thereby may maintain an action upon the bond,
against the sheriff and his sureties. Colquitt v. Ivey, 62
Ga. 169. And if the process is final the presumption is
that the plaintiff has been damaged to an amount equal
to the execution, and the burden is on the plaintiff to show
otherwise. Gregg Hdw. Co. v. Knight, 121 Ga. 287, 48 S.
E. 930. But if the failure is to serve mesne process no
such presumption exists and the plaintiff must prove ac-
tual damage in order to recover on the bond. Gregg Hdw.
Co. v. Knight, 121 Ga. 287, 48 S. E. 930.
Sheriff Not Acting within Authority of Writ. — If the
sheriff, in executing a writ of possession, remove from the
premises any person not mentioned in the writ and not
within its legal operation according to section 3638, such
removal amounts to official misconduct, and he thereby sub-
jects himself and his sureties to an action upon his offi-
cial bond at the suit of the person so aggrieved. Jeffer-
son v. Hartley, 81 Ga. 716, 9 S. E. 174.
Where the Governor is made a nominal party to an ac-
tion on the official bond of a clerk of the superior court,
he is not liable for costs. Hardwick v. Fidelity, etc., Co.,
29 Ga. App. 567, 116 S. E. 220.
§ 13. (§ 13.) Bonds taken by officers.— All
bonds taken by public officers, under the laws of
this State, shall be returned to the offices specified
by law; and any person interested therein may
bring suit thereon, in his own name, in any court
having jurisdiction thereof.
See notes to preceding section. For full treatment of
official bonds and sureties thereon, ■ see §§ 278-309. As to
parties to action on contracts, see § 5516. As to suits on
administrators' bonds, see § 3974.
Usee Real Party Plaintiff. — The usee is the real party
plaintiff in a suit on a forthcoming bond, and under this
section may bring suit on the bond in his own name. Worts-
man v. Wade, 77 Ga. 651.
Same — Based on Statute and Not General Law. — The case
of Wortsman v. Wade, 77 Ga. 651, was based upon a suit
on a forthcoming bond given in a claim case, and was de-
pendent upon the statutes regulating cases and bonds of that
character, and not upon the general law in regard to the
residence of the persons named as beneficiaries of a suit
brought by an indispensable party plaintiff, which distin-
guishes it from this case. Southern Railway Co. v. Bar-
rett, 141 Ga. 584, 81 S. E. 863.
Same — Plaintiff in Execution. — Where a forthcoming bond
was given by a claimant of property, payable to the sher-
iff, the plaintiff in execution was interested in such bond
to the extent of the value of the property, if it did
not exceed the amount of his judgment, and he could
bring suit on such bond in his own name under this sec-
tion. Hart v. Thomas & Co., 75 Ga. 529; Hagedorn v.
Powers & Baird, 22 Ga. App. 189, 95 S. E. 749.
Same — Same — Levying Officer as Plaintiff.— A suit on
a forthcoming bond given in a claim case may be brought
in the name of levying officer, or in the name of the
plaintiff in fi. fa. Even where the suit is instituted in
the name of the levying officer, the plaintiff in execution
is the real party in interest. Boyd v. Crews, 32 Ga. App.
138, 122 S. E. 802. See also, Thompson v. O'Connor, 115
Ga. 120, 41 S. E. 242.
U. S. Marshall as Nominal Plaintiff. — A marshall ' may
sue on a forthcoming bond just as a sheriff may, but
having no interest in the case, save the proper performance
of his duty, he is merely a nominal party. Wade v. Worts-
man, 29 Fed. 754.
Failing as Statutory Bond — Good as Common-Law Bond.
— While the bond given in this case was not a good stat-
utory bond, being made payable to the sheriff of the city
court of Dublin, it was good as a common-law bond, and
having served the purpose of obtaining the delivery of pos-
session of the property by the levying officer to the prin-
cipal, a recovery could be had for the breach of it. whether
the process under which the levy was made was valid or
not. Mullis v. Kennedy, 143 Ga. 618, 621, 85 S. E- 845.
§ 14. (§ 14.) Inspection of public books. —
All books kept by any public officer under the
[n 1
§ 15
PRELIMINARY PROVISIONS
§ 15(1)
law's of this State shall be subject to the inspection
of all the citizens of this State, within office hours,
every day except Sundays and holidays. Act
1831, Cobb, 196.
As to requiring officer to deliver records to successor,
see § 304. As to inspection of voters' lists and books, see
§§ 66, 74.
A private citizen has not a right, against the consent
of the clerk of the Superior Court and without the pay-
ment of his fees, to examine the books of record in his
office, for the purpose of making a full abstract of the
contents, thereof, for publication. Buck & Spencer v. Col-
lins, 51 Ga. 391.
§ 15. (§ 15.) Licenses revocable. — Where
in the exercise of the police power, a license is
issued, the same is not a contract, but only a
permission to enjoy the privilege for the time
specified, on the terms stated. It may be abro-
gated.
For full treatment of the subject licenses, see S Cum.
Dig. 191; 8 Fnc. Dig. 761. As to right of taxpayers to de-
mand license of holder, see § 534. As to pawnbrokers' li-
cense, see §§ 904, 3527. As to forfeiture and revocation of
insurance license, see §§ 2416, 2430, 2434, 2494. As to revo-
cation of licenses of fraternal beneficiary orders, see § 2873.
As to revocation of licenses of investment companies, see
§ 2907.
Editor's Note. — This section is a codification of the rule
found in Brown v. State, 82 Ga. 224, 7 S. F- 915 and Stray-
berry v. Atlanta, 87 Ga. 120, 13 S. F. 197. Both cases had
for determination, the nature of a liquor license, and de-
cided that such a license was not a contract, but was
merely a permission to enjoy the privilege on the terms
stated. By its revocation, the citizen is not deprived of
his property without due process of law. "The contracts
which the Constitution protects are those that relate to
property rights, not governmental," Stone v. Mississippi,
101 U. S. 814, 25 L. Ed. 1079. The codification changed the
ruling of these cases no more than to include all licenses
issued in the exercise of police power. On the general sub-
ject, see 66 Cent. I,. Jour. 314; Freund on Police Power,
§ 59; Dill Mun. Corp. (4th ed.), 145, § 89.
License Is Temporary and Revocable. — Any license a mu-
nicipal corporation grants, in the absence of express stat-
utory authority, is necessarily temporary and revocable.
Laing v. American, 86 Ga. 756, 13 S. E- 107; Augusta v.
Burum & Co., 93 Ga. 68, 19 S. F- 820.
Section Limited. — This section has reference to licenses
issued in the exercise of police power, and a city has no
authority to arbitrarily revoke a business license which it
has granted to the proprietor of a restaurant or lunch
counter. Peginis v. Atlanta, 132 Ga. 302, 63 S. F- 857.
Revocation without Refund of License Fee. — The doctrine
is well established that it is within the power of the au-
thorities of any municipality, having by law the power to
grant licenses to retail spirituous liquors, to revoke such
licenses at any time under this section, without refund-
ing the money paid therefor or any part of the same. Mel-
ton v. Moultrie, 114 Ga. 462, 40 S. F. 302, citing Ison v.
Griffin, 98 Ga. 623, 25 S. F. 611; Plumb v. Christie, 103 Ga.
686, 30 S. F. 759.
Same — Investment in Business by Licensee No Defense. —
The fact that the holders of revoked liquor licenses have
invested money in liquors, or in necessary fixtures, does
not vary the application of this section. Melton v. Moul-
trie, 114 Ga. 462, 40 S. F- 302.
No Right to Carry on Business after Revocation. — The
holder of a license to sell liquors can not, though the same
may have been lawfully granted, lawfully sell thereunder
after such license has been duly revoked. Melton v. Moul-
trie, 114 Ga. 462, 40 S. F. 302;" McGehee v. State, 114 Ga.
833, 40 S. F- 1004.
§ 15(1). Floral emblem of State. — The Che-
rokee Rose is hereby adopted as and declared to
be the floral emblem of the State of Georgia.
Acts 1916, p. 1046.
Law Library
University of Georgia
Athens, Ga.
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remove
[12]
THE POLITICAL CODE
THE POLITICAL AND PUBLIC ORGANIZATION OF THE STATE
FIRST TITLE.
Divisions; Of the Boundary, Sovereignty, and
Jurisdiction of the State.
CHAPTER 1.
The Boundary of the State.
§ 16. (§ 16.) Boundaries of the State.— -The
boundaries of Georgia, as deducted from the Con-
stitution of Georgia, the Convention of Beaufort,
the Articles of Cession and Agreement entered
into on the 24th of April, 1802, the Resolution of
the General Assembly of December 8th, 1826,
and the adjudications and compromises affecting
Alabama and Florida, are as follows:
From the sea, or the mouth of the river Savan-
nah, along the stream thereof to the fork or con-
fluence made by the rivers Keowee and Tugalo,
and thence along said river Tugalo until the fork
or confluence made by said Tugalo and the river
Chattooga, and up and along the same to the
point where it touches the northern boundary
line of South Carolina and the southern boundary
line of North Carolina, which is at a point on
the thirty-fifth parallel of north latitude, reserv-
ing all the islands in said rivers Savannah, Tugalo,
and Chattooga, to Georgia; thence on said line
of said thirty-fifth parallel, from said point of
intersection, and on and along said line west, to
a point where it merges into and becomes the
northern boundary line of Alabama — it being the
point fixed by the survey of the State of Georgia,
and known as Nickajack; thence in a direct line
to the great bend of the Chattahoochee river,
called Miller's Bend— it being the line run and
marked by said survey; and thence along and
down the western bank of said Chattahoochee,
along the line or limit of high-water mark, to its
junction with Flint river; thence along a certain
line of survey made by Gustavus J. Orr, a surveyor
on the part of Georgia, and W. Whitner, a sur-
veyor on the part of Florida, beginning at a fore-
and-aft tree, about four chains below the present
.,. ,,, , ,, • 1- . • . I was originally fixed and established. Tames v. State, 1C
junction; thence along this line east, to a point I Ga App 13 72 s. E. 600
designated thirty-seven links north of Ellicott's
marine leagues of the seacoast. Act 1788, Cobb,
150. Watkins' Digest, 713-762. Acts 191G, p. 29.
Editor's Note.— The act of legislature of 1788 (Cobb, 150)
ratified certain agreements entered into by commission-
ers, appointed by the legislatures of Georgia and Carolina,
settling certain disputes relative to boundary. The codifi-
cation of the boundaries as it appeared in the Code of 1863
remained substantially unchanged until 1916, when the
legislature passed an act (Acts 1916, p. 29), to extend the
eastern boundary three miles from low-water mark into
the Atlantic Ocean. The words near the bottom of the
last paragraph of the section, between the words "Atlantic
Ocean" and "and thenceforth from" were the contribution
niade by this act.
General Rule Where River Is Boundary. The general
rule is that where a river is the boundary between two
states, if the original property is in neither, and there be
no convention respecting it, each state holds to the mid-
dle of the stream. Georgia, etc., Co. v. Wright, 14o Ga.
29, 90 S. E. 465.
That part of the Savannah river which is broken by
islands, located between an island and the Georgia main-
land, is within the jurisdiction and sovereignty of this state
by virtue of this section, and a dam constructed across
the river from an island to the Georgia shore is subject to
taxation in this state. Georgia, etc., Co. v. Wright, 146
Ga. 29, 90 S. E- 465.
Grants made previous to the settlement of a boundary
dispute between two states are void if they conflict with
such settlement. Coffee v. Groover, 123 U. S. 1, 8 S. Ct. 1,
31 E. Ed. 51.
§ 17. (§ 17.) Line between Georgia and
South Carolina. — The boundary between Georgia
and South Carolina shall be the line described as
running from the mouth of the river Savannah,
on said river and the rivers Tugalo and Chat-
tooga, to the point where the last-named river
intersects with the thirty-fifth parallel of north
latitude, conforming as much as possible to the
line agreed on by the commissioners of said State
at Beaufort on the 28th of April, 17S7. Acts 1887,
p. 122.
A person in a boat on the Savannah river, within thirt)
yards of the Georgia side, at a point where the river is at
least one hundred and seventy-five yards wide, is prima
facie in Georgia under this section. Simpson v. State, 92
Ga. 41, 17 S. E. 984.
The boundary line between Georgia and South Carolina,
was not altered by the fact that the U. S. government, in
the course of its work to improve the navigation of the
Savannah river, changed the location of the main current
or channel of the river; but it remains where the main
channel or current flowed naturally when the boundary line
Mound on the St. Mary's river; thence along the
middle of said river to the Atlantic ocean, and
extending therein three (3) English miles from
low-wrater mark; thence running in a northeasterly
direction and following the direction of the At-
lantic coast to a point opposite the mouth, or in-
let, of said Savannah River; and from thence
to the mouth or inlet of said Savannah River, to
the place of beginning; including all the lands,
waters, islands, and jurisdictional rights within
said limits, and also all the islands within twenty
§ 18. (§ 18.) Line between Georgia, North
Carolina, and Tennessee. — The boundary between
Georgia and North Carolina and Georgia and
Tennessee shall be the line described as the thirty-
fifth parallel of north latitude, from the point of
its intersection by the river Chattooga, west to
the place called Nickajack. Acts 1SS7, p. 105.
§ 19. (§ 19.) Line between Georgia and Ala-
bama.—The boundary line between Georgia and
Alabama shall be the line described from Nicka-
jack to Miller's Bend on the Chattahoochee, and
[13]
§ 20
JURISDICTION CEDED TO THE UNITED STATES
§ 27
down said river to its junction with the Flint.
Acts 1889, p. 121.
§ 20. (§ 20.) Line between Georgia and
Florida. — The boundary line between Georgia
and Florida shall be the line described from the
junction of the Flint and Chattahoochee rivers
to the point thirty-seven links north of Ellicott's
Mound, on the St. Mary's river; thence down said
river to the Atlantic ocean. Acts 1859, p. 23.
See Coffee v. Groover, 123 U. S. 1, 8 S. Ct. 1, 31 L.
Ed. 51.
CHAPTER 2.
The Sovereignty and Jurisdiction of the State.
§ 21. (§ 21.) Sovereignty and jurisdiction. —
The sovereignty and jurisdiction of this state ex-
tend to all places within the limits of her bound-
aries, except so far as she has voluntarily ceded
the same to the United States, or adjacent States,
over particular localities.
For similar provision in Penal Code, see § 21 P. C. As
to jurisdiction ceded to the United States, see §§ 25-30.
§ 22. (§ 22.) As to persons. — The jurisdiction
of this State and its laws extend to all persons
while within its limits, whether as citizens, deni-
zens, or temporary sojourners.
For identical and similar sections, see §§ 2172, 5531, 22
P. C. As to how property of transient persons taxed, see
§ 1005.
As this section is identical with section 2172, the con-
structions of both will be found under the latter.
§ 23. (§ 23.) Governor must defend suits,
when. — When any suit is instituted against the
State, or against any person, in the result of
which the State has an interest, under pretense
of any claim inconsistent with its sovereignty, ju-
risdiction, or rights, the Governor shall, in his
discretion, provide for the defense of such suit,
unless otherwise specially provided for.
For full treatment of Governor's duties, see 6 Cum. Dig.
671; 6 Enc. Dig. 785. As to authority of Governor to em-
ploy agents, see § 159. As to suits for debts due State, see
§ 149. As to liability of State to contractor for school
books, see § 1452.
Consent. — The State, by the Governor, can not be made
a party claimant, without the Governor's consent. Par-
ker v. Hughes, 25 Ga. 374; Printup v. Cherokee R. Co., 45
Ga. 365.
Attorney General Appearing for Governor. — The Gov-
ernor is neither a proper nor necessary party to an injunc-
tion filed against sheriff when execution was issued by the
Governor and levied by the sheriff. A demurrer filed for
the sheriff by the attorney general in his official capacity
is a sufficient representation of the Governor. Mayo v.
Renfrol, 66 Ga. 408. See also, Simpson, etc. v. Mothis, 74
Ga. 115.
Restrictions Placed on Courts. — Where the General As-
sembly authorizes suit to be brought against the State, on
certain stipulations, the stipulations are restrictions on the
courts and may not be exceeded. Thweatt v. State, 66 Ga.
673.
Cited in Western Union Tel. Co. v. Western, etc., R. Co.,
142 Ga. 532, 83 S. E. 135.
§ 24. (§ 24.) Trial of cases when state is
party. — The judges of the superior court and of
the Supreme Court in this State, where cases are
pending in said courts in which the State is a
"party plaintiff" in civil cases, shall give prefer-
ence over any and all cases so pending to such
cases, and use all the power vested in them by law
to bring such cases to a speedy trial; and shall,
whenever required so to do by counsel for the
State, take up said cases for trial, and proceed to
try the same, unless the defendant can show some
good cause for continuance, when the case shall
be continued to a future time in the same term, or
to the next term, in the discretion of the court:
Provided, nothing in this section contained shall
affect the right of the State to continuance on a
proper showing. Acts 1876, p. 104.
See notes to preceding section. As to forfeiture proceed-
ings, see § 2350. As to how causes are called and tried, see
§ 6284. As to proceedings to recover penalties, see § 2667.
As to suits for debts due the state, see § 149.
CHAPTER 3.
Jurisdiction Ceded to the United States Over
Certain Land.
§ 25. Cession to the United States of land for
public buildings.— The consent of the State of
Georgia is hereby given, in accordance with the
sixteenth clause, eighth section of the first article
if the Constitution of the United States, to the
acquisition by the United States, by purchase,
condemnation or otherwise, of any lands in this
State heretofore ceded, or that may hereafter be
required for sites for custom-houses, court-houses,
postoffices, or for the erection of forts, maga-
zines, arsenals, dockyards, and other needful
buildings. Acts 1906, p. 126.
For provision of the Federal constitution as to cession,
see § 6644, par. 16. As to particular cessions, see § 30.
As to jurisdiction of the United States over certain bridges
and piers, see § 426.
§ 26. (§ 25.) Jurisdiction. — Exclusive jurisdic-
tion in and over any lands so acquired by the
United States shall be, and the same is, hereby
ceded to the United States for all purposes ex-
cept the service upon such sites of all civil and
criminal process of the courts of this State; but
the jurisdiction so ceded shall continue no longer
than said United States shall own such lands.
The State retains its civil and criminal jurisdic-
tion over persons and citizens in said ceded ter-
ritory, as over ether persons and citizens in this
State. Nothing herein shall interfere with the
jurisdiction of the United States over any matter
or subjects set out in the Acts of Congress donat-
ing money for the erection of public buildings
for the transaction of its business in this State,
or with any laws, rules, or regulations that Con-
gress may hereafter adopt for the preservation
and protection of its property and rights in said
ceded territory, and the proper maintenance of
good order therein: Provided, such cession shall
not take effect until the United States shall have
acquired title to said lands. Acts 1890-1, p. 201.
§ 27. (§ 26.) Lands condemned for United
States lighthouses, etc. — The agent of the United
States, and the mayor of any incorporate city, in
the county in which it is proposed to erect light-
houses, beacons or range-lights, or any other
structure designed to assist the navigation of the
waters of this State, authorized by the govern-
ment of the United States, shall mark out, by
metes and bounds, the land necessary to be taken,
and advise the respective owners thereof. If
the agent of the United States and the owners
cannot agree upon the compensation to be paid
for taking the land, the Governor shall appoint
one person and the owner of the land another,
[14]
§ 28
COUNTIES
§ 31
and these two shall select a third person, who
shall constitute a commission to assess the just
and adequate compensation to be paid, according
to the general method of condemning land in this
Code provided. Acts 1882-3, p. 119.
As to what condemnations applicable, see § 5235.
§ 28. (§ 27.) Coast-surveyors — Any person
employed under the Act of the Congress of the
United States, providing for a survey of the
coasts, may enter lands and clear or cut timber
within this State upon the same, for any purpose
legitimately connected with and requisite to ef-
fect the said object: Provided, no unnecessary
injury be done thereby, and all damages to the
owner of the land be promptly paid. Act 1847,
Cobb. 155.
§ 29. (§ 28.) Damage to landowners. — If the
parties representing the government of the United
States, and the owner or possessor of the land so
entered upon, can not agree upon the amounts
to be paid for the same, the damages shall be
assessed as in this Code provided.
As to assessment and value of damages in condemnation
proceedings, see § 5225.
§ 30. Certain cessions to the United States. —
Since the adoption of the Code of 1895 the fol-
lowing cessions have been made to the United
States.
Acts 1897, p. 109. — Roadway in Ringgold and upon
the public road.
Acts 1898, p. 102. — Ground for a fishery in Meri-
wether County.
Acts 1899, p. 92.— For a National Park in Ful-
ton County.
Acts 1899, p. 93. — For Government building in
the City of Atlanta.
Acts 1899, p. 94. — For United States Prison in
Fulton County.
Acts 1901, p. 84. — For National Forest Reserve.
Acts 1901, p. 85. — For Chickamauga, Chatta-
nooga National Park.
Acts 1902, p. 110. — National Park approaches in
Catoosa and Whitefield Counties.
Acts 1902, p. ill. — Government building in Athens.
Acts 1902, p. 112. — Government building in Savan-
nah.
Acts 1902, p. 113.— Chickamauga National Park.
Acts 1904, p. 108. — Government buildings in Val-
dosta and Atlanta.
Acts 1904, p. 110.— Fort Screven on Tubee Island.
Acts 1906, p. 125. — For fish culture in Meriwether
County.
Acts 1910, p. 132. — For Government road in
Walker County.
Acts 1912, p. 113. — Military reservation of Fort
Oglethrope in Catoosa and Walker Counties.
Acts 1914, p. 154. — Certain tracts of marsh land
in Camden County to connect certain water-
ways.
Acts 1917, p. 192. (Amending Acts 1901, p. 85).
For National Forest Reserve.
Acts 1918, p. 206 (Amending Acts 1917, p. 182).
For National Forest Reserve.
CHAPTER 4.
Counties.
§ 31. (§ 29.) Names of counties. — The State
is divided into one hundred and sixty-one coun-
ties, whose boundaries and limits shall be ascer-
tained by the several acts laying off the same,
and those amendatory thereof. The names of
the counties are as follows:
County
Appling,
Atkinson,
Bacon,
Baker,
Baldwin,
Banks,
Barrow,
Bartow,
Ben Hill,
Berrien,
Bibb,
Bleckley,
Brantley,
Brooks,
Bryan,
Bulloch,
Organized Under Act
December 15, 1818.
August 15, 1917, Constitutional
Amendment.
July 27, 1914, Constitutional
Amendment.
December 12, 1825.
May 11, 1803.
December 11, 1858.
July 7, 1914, Constitutional
Amendment.
| December 3, 1832, }
I December 6, 1861. J
July 31, 1906, Constitu-
tional Amendment.
February 25, 1856.
December 9, 1822.
July 30, 1912, Constitutional
Amendment.
August 14, 1920, Constitutional
Amendment.
December 11, 1858.
December 19, 1793.
February 8, 1796.
[15]
Made From
Appling.
Coffee and Clinch.
Appling, Pierce and Ware.
Early.
Baldwin.
Habersham and Franklin.
Givinnett, Walton and Jackson.
Murray.
Irwin and Wilcox.
Irwin, Lowndes, and Coffee.
Monroe.
Pulaski.
Pierce, Charlton and Wayne.
Lowndes and Thomas.
Bryan.
Bulloch.
§ 31
COUNTIES
§ 31
County
Burke,
Butts,
Calhoun,
Camden,
Campbell,
Candler,
Carroll,
Catoosa,
Charlton,
Chatham,
Chattahoochee,
Chattooga,
Cherokee,
Clarke,
Clay,
Clayton,
Clinch,
Cobb,
Coffee,
Cloquitt,
Columbia,
Cook,
Coweta,
Crawford,
Crisp,
Dade,
Dawson,
Decatur,
DeKalb,
Dodge,
Dooly,
Doughterty,
Douglas,
Early,
Echols,
Effingham,
Elbert,
Emanuel,
Evans,
Fannin,
Fayette,
Floyd,
Forsyth,
Franklin,
Fulton,
Gilmer,
Glascock,
Glynn,
Gordon,
Grady,
Greene,
Gwinnett,
Habersham,
Hall,
Hancock,
Haralson,
Harris,
Hart,
Organized Under Act
j Constitution of j
{ Georgia, 1777. f
December 24, 1825.
February 20, 1854.
(. Constitution of {
I Georgia, 1777. j
December 20, 1828.
July 17, 1914, Constitutional
Amendment.
December 11, 1826.
December 5, 1853.
February 18, 1854.
j Constitution of |
| Georgia, 1777. J
February 13, 1854.
December 28, 1838.
December 26, 1831.
December 5, 1801.
February 16, 1854.
November 30, 1858.
February 14, 1850.
December 3, 1832.
February 9, 1854..
February 25, 1856.
December 10, 1790.
July 30, 1918, Constitutional
Amendment.
December 11, 1826.
December 9, 1822.
August 17, 1905.
December 25, 1837.
December 3, 1857.
December 8, 1823.
December 9, 1822.
October 26, 1870.
May 15, 1821.
December 15, 1853.
October 17, 1870.
December 15, 1818.
December 13, 1858.
J Constitution of }
1 Georgia, 1777. j
December 10, 1790.
December 10, 1812.
August 11, 1914, Constitutional
Amendment.
January 21, 1854.
May 15, 1821.
December 3, 1832.
December 3, 1832.
February 25, 1784.
December 20, 1853.
December 3, 1832.
December 19, 1857.
| Constitution of }
1 Georgia, 1777. j
February 13, 1850.
August 17, 1905.
February 3, 1786.
December 15, 1818.
December 15, 1818.
December 15, .1818.
December 17, 1793.
January 26, 1856.
December 14, 1827.
December 7, 1853.
[16]
Made From
Parish of St. George.
Henry and Monroe.
Early and Baker.
j St. Thomas's and St. Mary's
( Parishes.
j Coweta, Carroll, DeKalb, and
{ Fayette.
Emanuel, Bulloch and Tattnall.
Carroll.
Walker and Whitfield.
Camden.
j St. Phillip's and Christ Church
| Parishes.
Marion and Muscogee.
Floyd and Walker.
Cherokee and Campbell.
Jackson.
Early and Randolph.
Henry and Fayette.
Ware and Lowndes.
Cherokee.
Clinch, Ware, Telfair, and Irwin.
Thomas and Lowndes.
Richmond.
Berrien.
Coweta.
Crawford.
Dooly.
Walker.
Lumpkin and Gilmer.
Early.
Henry.
j Pulaski, Telfair, and Mont-
| gomery.
Dooly,
Baker.
Campbell and Carroll.
Early.
Lowndes and Clinch.
5 Parishes of St. Matthew and St.
1 Phillip.
Wilkes.
Montgomery and Bulloch.
Bulloch and Tattnall.
Gilmer and Union.
Fayette.
Cherokee.
Cherokee.
Franklin.
DeKalb.
Cherokee.
Warren.
| Parishes of St. David and St.
\ Patrick.
Floyd and Cass.
Thomas and Decatur.
Washington.
Gwinnett.
Habersham.
Hall.
Washington.
Polk and Carroll.
Muscogee and Troup.
Franklin and Elbert.
§ 31
COUNTIES
§ 31
County
Heard,
Henry,
Houston,
Irwin,
Jackson,
Jasper,
Jeff Davis,
Jefferson,
Jenkins,
Johnson,
Jones,
Lamar,
Lanier,
Laurens,
Lee,
Liberty,
Lincoln,
Long,
Lowndes,
Lumpkin,
Macon,
Madison,
Marion,
McDufne,
Mcintosh,
Meriwether,
Miller,
Milton,
Mitchell,
Monroe,
Montgomery,
Morgan,
Murray,
Muscogee,
Newton,
Oconee,
Oglethrope,
Paulding,
Peach,
Pickens,
Pierce,
Pike,
Pulk,
Pulaski,
Putnam,
Quitman,
Rabun,
Randolph,
Richmond,
Rockdale,
Schley,
Screven,
Seminole,
Spalding,
Stephens,
Stewart,
Sumter,
Organized Under Act
December 22, 1830.
May 15, 1821.
May 15, 1821.
December 15, 1818.
February 11, 1796.
S December 10, 1807, }
I December 10, 1812. J
August 18, 1905.
February 20, 1796.
August 17, 1905.
December 11, 1858.
December 10, 1807.
August 17, 1920, Constitutional
Amendment.
August 11, 1919.
August 7, 1920, Constitutional
Amendments.
December 10, 1807.
December 11, 1826.
{ Constitution of }
| Georgia, 1777. J
February 20, 1796.
August 14, 1920, Constitutional
Amendment.
December 23, 1825.
December 3, 1832.
December 14, 1837.
December 11, 1811.
December 14, 1827.
October 18, 1870.
December 19, 1793.
December 14, 1827.
February 26, 1856.
December 18, 1857.
December 21, 1857.
May 15, 1821.
December 19, 1793.
December 10, 1807.
December 3, 1832.
December 11, 1826.
December 24, 1821.
February 25, 1875.
December 19, 1793.
December 3, 1832.
July 18, 1924, Constitutional
Amendment.
December 5, 1853.
December 18, 1857.
December 9, 1822.
December 20, 1851.
December 13, 1808.
December 10, 1807.
December 10, 1858.
December 21, 1819
December 20, 1828.
j Constitution cf |
| Georgia, 1777. j
October 18, 1870.
December 22, 1857.
December 14, 1793.
July 8,. 1920, Constitutional
Amendment.
December 20, 1851.
August 18, 1905.
December 23, 1830.
December 26, 1831.
[171
Made From
Carroll, Troup, and Coweta.
Henry.
Huston.
Irwin.
Franklin.
Baldwin.
Appling and Coffee.
Burke and Warren.
Burke, Emanuel, and Bulloch,
j Laurens, Emanuel, and Wash-
| ington.
Baldwin.
Pike and Monroe.
Clinch, Berrien and Lowndes.
Washington and Wilkinson.
Lee.
J Parishes of St. John, St. Andrew,
1 and St. James.
Wilkes.
Liberty.
Irwin.
Cherokee.
Houston and Marion.
j Oglethrope, Jackson, Clark,
) Franklin and Elbert.
Muscogee and Lee.
Columbia and Warren.
Liberty.
Troup.
Baker and Early.
Cherokee, Cobb, and Forsyth.
Baker.
Monroe.
Washington.
Baldwin.
Cherokee.
Muscogee.
Henry, Jasper, and Walton.
Clarke. t
Oglethorpe.
Cherokee.
Cherokee and Gilmer.
Ware and Appling.
Monroe.
Paulding and Floyd.
Laurens.
Baldwin.
Randolph and Stewart.
Rabun.
Lee.
Parish of St. Paul.
Newton and Henry.
Marion and Sumter.
Burke and Effingham.
Decatur and Early.
Pike, Henry, and Fayette.
Franklin and Habersham.
Randolph.
Lee.
§ 32
CONGRESSIONAL DISTRICTS
§ 33
County
Talbot,
Taliaferro,
Tattnall,
Taylor,
Telfair,
Terrell,
Thomas,
Tift,
Toombs,
Towns,
Treutlen,
Troup,
Turner,
Twiggs,
Union,
Upson,
Walker,
Walton,
Ware,
Warren,
Washington,
Wayne,
Webster,
Wheeler,
White,
Whitefield,
Wilcox,
Wilkes,
Wilkinson,
Worth,
Organized Under Act
December 14, 1827.
December 24, 1825.
December 5, 1801.
January 15, 1852.
December 10, 1807.
February 16, 1856.
December 23, 1825.
August 17, 1905.
August 18, 1905.
March 6, 1856.
August 17, 1917, Constitutional
Amendment.
December 11, 1826.
August 18, 1905.
December 14, 1809.
December 3, 1832.
December 15, 1824.
December 18, 1833.
December 15, 1818.
December 15, 1824.
December 19, 1793.
December 25, 1784.
May 11, 1803.
| December 16, 1853, {
I February 21, 1856. J
August 14, 1912, Constitutional
Amendment.
December 22, 1857.
December 30, 1851.
December 22, 1857.
| Constitution of |
| Georgia, 1777. }
May 11, 1803.
December 20, 1853.
Made From
Muscogee.
j Wilkes, Greene, Oglethorpe.
| Warren, and Hancock.
Montgomery.
Talbot, Macon, and Marion.
Wilkinson.
Lee and Randolph.
Decatur and Irwin.
Berrien, Irwin, and Worth.
j Tattnall, Montgomery, and
| Emanuel.
Union.
Montgomery and Emanuel.
Troup.
Irwin, Wilcox, Dooly, and Worth.
Wilkinson.
Cherokee.
Crawford and Pike.
Murray.
Walton.
Irwin.
Warren.
Washington.
Wayne and Appling.
Lee.
Montgomery.
Habersham.
Murray.
Irwin, Dooly, and Pulaski.
Wilkes.
Wilkinson.
Dooly and Irwin.
Cobb, pp. 1144, 1210. Acts 1905, pp. 52-65: 1906,
p. 28. 1912, pp. 38, 41. 1914, pp. 23, 27, 29, 33. 1916, p.
17. 1917, pp. 41, 44. 1918, pp. 102, 106. 1919, p. 68.
1920, pp. 34, 38, 45, 48, 52. 1924, p. 39.
See note to § 11. As to State constitutional provisions
relating to counties, see §§ 6594-6598.
* § 32. (§ 30.) Counties divided by water. —
Whenever a Stream of water is the boundary of a
county, the jurisdiction of the county shall extend
to the center of the main channel of such stream.
See note to § 11. As to boundary lines of stream gen-
erally, see § 3630.
CHAPTER 5.
Congressional Districts.
§ 33. (§ 31.) Congressional districts. — The State
of Georgia is hereby divided into twelve Congres-
sional Districts, each of which is entitled to elect
one Representative in the Congress of the United
States. The districts shall be composed of the fol-
lowing counties, respectively:
First District: Chatham, Bryan, Mcintosh,
Liberty, Tattnal, Bullock, Effingham, Screven,
Jenkins, Burke, Candler, Evans, and Long.
Second District: Tift, Colquitt, Thomas, Grady,
Decatur, Miller, Early, Baker, Mitchell, Dougherty,
and Calhoun, Worth, and Seminole.
Third District: Ben Hill, Turner, Crisp, Dooly,
Macon, Taylor, Schley, Sumter, Lee, Terrell
Randolph, Clay, Q/uitman, Stewart, and Webster.
[
Fourth District: Carroll, Coweta, Heard, Troup,
Meriwether, Harris, Talbot, Muscogee, Marion and
Chattahoochee.
Fifth District: Douglas, Fulton, Campbell, De-
Kalband Rockdale.
Sixth District: Clayton, Bibb, Jones, Jasper,
J Butts, Henry, Fayette, Spalding, Pike, Upson,
| Monroe, Crawford, and Lamar.
I Seventh District: Haralson, Polk, Paulding,
Cobb, Bartow, Floyd, Gordon, Chattooga, Wal-
ker, Dade, Catoosa, Whitfield and Murray.
Eighth District: Greene, Franklin, Hart, El-
bert, Wilkes, Oglethrope, Madison, Clarke, Oco-
nee, Morgan, Newton, Walton, and Putnam.
Ninth District: Jackson, Gwinnett, Hall, Cher-
okee, Fannin, Forsyth, Banks, Habersham, Ste-
phens, Gilmer, Pickens, Milton, Union, Rabun,
Lumpkin, White, Dawson, Towns, and Barrow.
Tenth District: Baldwin, Richmond, Jefferson,
Washington, Wilkinson,, Hancock, Talliaferro
Warren, Gyascock, McDuffie, Columbia and Lin-
coln.
Eleventh District: Glynn, Camden, Charlton,
Pierce, Wayne, Appling, Jeff Davis, Ware, Clinch,
Echols, Lowndes, Brooks, Berrien, Coffee, Irwin,
Bacon, Atkinson, Cook, Lanier and Brantley.
Twelfth District: Twiggs, Houston, Pulaski,
Wilcox, Dodge, Telfair, Laurens, Johnson, Eman-
18]
§ 34
QUALIFICATION OF VOTERS
§ 34
uel, Montgomery, Toombs, Bleckley, Wheeler,
Trenton and Peach.
Acts 1890-1, p. 193; 1905, pp. 52, 54, 57, 58, 60,
62, 63; 1911, p. 146; 1912, pp. 38, 41, 108; 1914, pp.
23, 27, 29, 33; 1916, p. 17; 1917, pp. 41, 44; 1918, pp.
102, 106; 1919, p. 68; 1920, pp. 34, 38, 48, 52; 1924,
p. 39.
SECOND TITLE.
Elections by the People.
CHAPTER 1.
For full treatment of this subject, see 5 Cum. Dig. 288;
5 F,nc. Dig. 2.
Qualification of Voters.
§ 34. (§ 32.) Qualification of voters The
qualification of voters is contained in the follow-
ing sections of the Constitution of this State, to
wit:
Par. 1. After the year 1908 elections by the
people shall be by ballot, and only those persons
shall be allowed to vote who have been first
registered in accordance with the requirements
of law.
Par. 2. Every male citizen of this State who is
a citizen of the United States, twenty-one years
old or upwards, not laboring under any of the
disabilities named in this article, and possessing
the qualifications provided by it, shall be an elec-
tor and entitled to register and vote at any elec-
tion by the people; provided, that no soldier,
sailor, or marine in the military or naval service
of the United States shall acquire the rights of
an elector by reason of being stationed on duty
in this State.
Par. 3. To entitle a person to register and vote
at any election by the people, he shall have re-
sided in the State one year next preceding the
election, and in the county in which he offers to
vote six months next preceding the election, and
shall have paid all taxes which may have been
required of him since the adoption of the Con-
stitution of Georgia of 1877 that he may have had
an opportunity of paying agreeably to law. Such
payment must have been made at least six months
prior to the election at which he offers to vote,
except when such elections are held within six
months from the expiration of the time fixed by
law for the payment of such taxes.
Par. 4. Every male citizen of this State shall
be entitled to register as an elector and to vote
in all elections of said State who is not disqualified
under the provisions of section 2 of article 2 of
this Constitution, and who possesses the qualifi-
cations prescribed in paragraphs 2 and 3 of this
section or who will possess them at the date of
the election occurring next after his registration,
and who in addition thereto comes within either
of the classes provided for in the five following
subdivisions of this paragraph.
1. All persons who have honorably served in
the land or naval forces of the United States in
the Revolutionary war, or in the War of 1812,
or in the War with Mexico, or in any war with
the Indians, or in the War between the States,
[
or in the war with Spain, or who honorably
served in the land or naval forces of the Con-
federate States, or of the State of Georgia in the
War between the States; or
2. All persons lawfully descended from those
embraced in the classes enumerated in the subdivi-
sion next above; or
3. All persons who are of good character, and
understand the duties and obligations of citizen-
ship under a republican form of government; or
4. All persons who can correctly read in the
English language any paragraph of the Constitu-
tion of the United States or of this State and cor-
rectly write the same in the English language
when read to them by any one of the registrars,
and all persons who solely because of physical
disability are unable to comply with the above re-
quirements, but who can understand and give a
reasonable interpretation of any paragraph of the
Constitution of the United States, or of this State,
that may be read to them by any one of the regis-
trars; or
5. Any person who is the owner in good faith
in his own right of at least forty acres of land
situated in this State, upon which he resides, or
is the owner in good faith in his own right of
property situated in this State and assessed for
taxation at the value of five hundred dollars.
Par. 5. The right to register under subdivisions
1 and 2 of paragraph 4 shall continue only until
January 1, 1915. But the registrars shall prepare
a roster of all persons who register under sub-
divisions 1 and 2 of paragraph 4, and shall return
the same to the clerk's office of the superior court
of their counties, and the clerks of the superior
court shall send copies of the same to the secre-
tary of State, and it shall be the duty of these
officers to record and permanently preserve these
rosters. Any person who has been once regis-
tered under either of the subdivisions 1 or 2 of
paragraph 4 shall thereafter be permitted to vote;
provided, he meets the requirements of para-
graphs 2 and 3 of this section.
Par. 6. Any person to whom the right of regis-
tration is denied by the registrars upon the ground
that he lacks the qualifications set forth in the five
subdivisions of paragraph 4 shall have the right
to take an appeal, and any citizen may enter an
appeal from the decision of the registrars allow-
ing any person to register under said subdivisions.
All appeals must be filed in writing with the regis-
trars within ten days from the date of the deci-
sion complained of, and shall be returned by the
registrars to the office of the clerk of the Superior
Court to be tried as other appeals.
Par. 7. Pending an appeal and until the final
decision of the case, the judgment of the regis-
trars shall remain in full force.
Par. 8. No person shall be allowed to partici-
pate in a primary of any political party or a con-
vention of any political party in this State who is
not a qualified voter.
Par. 9. The machinery provided by law for the
registration of force October 1, 1908, shall be used
to carry out the provisions of this section, except
where inconsistent with same; the Legislature may
19]
§ 35
REGISTRATION OF VOTERS
§ 37
change or amend the registration laws from time
to time, but no such change or amendment shall
operate to defeat any of the provisions of this
section. Acts 1908, p. 27. Ratified Oct. 7th, 1908.
Article 2, § 1.
For the constitutional provisions on this subject, see §§
6395-6403. As to the necessity for registration as a prereq-
uisite to voting, see § 58. As to the manner of conducting
ballot, see § 82. For restrictions upon the elective fran-
chise- as applied to females, see § 2167, and see "Editor's
Note to this section." As to who are voters, see 5 Enc.
Dig. 2. As to voting by absentees, see §§ 120 (4) et seq.
Editor's Note. — These are the constitutional qualifications
contained in article II, section 1 (§§ 6395-6403), as amended
by the Act of August 1, 1903 (Acts 1908, p. 27), and ratified
on October 7, 1908. The amendment is worded to apply to
all elections, whereas prior thereto this section applied
particularly to the election of Members of the General As-
sembly. Furthermore a number of specific qualifications
are added here to those of the pre-existing law.
The ratification of the Nineteenth Amendment of the
United States has rendered nugatory all provisions of this
section which deny any right of woman to equal suffrage
with man. In Brown v. Atlanta, 152 Ga. 283, 109 S. E. 666,
and in Stephens v. Ball Ground School District, 153 Ga.
690, 113 S. F- 85, it was held that women are now prima
facie qualified to vote, and that the burden of proving oth-
erwise is upon him who disputes the right.
To What Elections Applicable. — The provisions of this
section and the section immediately following are applicable
to all county elections whether they be for officers or to
decide public questions. Floyd County v. State, 112 Ga.
794, 798, 38 S. F. 37. But they do not apply to municipal
elections. Floyd County v. State, 112 Ga. 794, 798, 38 S.
F. 37; State v. Mayor of Blue Ridge, 113 Ga. 646, 38 ' S. F-
977.
Registration adds no qualification to voters, but only
serves to identify them as persons qualified to vote. Chap-
man v. Sumner Consolidated School District, 152 Ga. 450,
455, 109 S. F. 129; Floyd County v. State, 112 Ga. 794, 798,
38 S. F. 37. For other cases, see 5 Fnc. Dig. 3.
Registration Is Prerequisite to Voting. — Cole v. McClen-
don, 109 Ga. 183, 187-188, 34 S. F. 384; Floyd County v.
State, 112 Ga. 794, 798, 38 S. F. 37.
§ 35. (§ 35.) Who disfranchised.— But the
following classes of persons shall not be permitted
to vote: (1) Those who shall have been con-
victed in any court of competent jurisdiction of
treason against the State, of embezzlement of
public funds, malfeasance in office, bribery or lar-
cency, or of any crime involving moral turpitude,
punishable by the laws of this State with im-
prisonment in the penitentiary, unless such per-
son shall have been pardoned; (2) idiots and insane
persons. Acts 1894, p. 115.
For the constitutional provisions to the same effect, see
§ 6404. See also, P. C. § 1077. For examples of crime in-
volving moral turpitude, see 5 Cum. Dig. 291.
The classification in this section originated in the Gen-
eral Registration Law of 1894 (Acts 1894, p. 115), which put
into the Code the constitutional provision on the same sub-
ject; but its present form dates only from the Code of 1895,
§ 32.— Ed. Note.
The disqualification of this section operates from the
fact of conviction; the court need not prescribe it as part
of the sentence. Cossidy v. Wiley, 141 Ga. 331, 80 S. E.
1046.
CHAPTER 2.
Registration of Voters.
ARTICLE 1.
Voters' Book, When to be Opened, and When to
be Closed; When Taxes Shall be Paid.
§ 36. (§ 36.) Tax-collector to open voters'
books. — At the time when he begins the collection
of taxes for each year, the tax-collector of each
county in this State shall open a book or books,
to be designated as "voters' books," containing,
on the first page thereof, or near the first page
thereof, the following oath to wit: "I do swear, or
affirm, that I am a citizen of the United States;
that I am twenty-one years of age, or will be
on the of of this calendar year; that
I have resided in this State for one year, and in
this county for six months, immediately preced-
ing the date of this oath, or will have so resided
on the of of this calendar year; that I
have paid all taxes which, since the adoption of
the Constitution of 1877, have been required of
me, except taxes for this year; that I possess the
qualification of an elector required by the Con-
stitution Amendment adopted in 1908; and that
I am not disfranchised from voting by reason of
any offense committed against the laws of the
State. I further swear, or affirm, that I reside in
the district, G. M., or in the ward of
the city of , at number on street;
my age is , my occupation . Acts 1894,
p. 116; 1908, p. 58.
As to who shall be entitled to register, see §§ 34, 39;
6395-6403. As to use of a separate printed oath, see § 46.
As to necessity for making oath before signing in voters'
books, see § 47. As to registration in new counties, see §
846. As to effect on election when ordinary takes list from
voters' book instead of registrars' list, see note to § 59.
As to necessity of elector being registered upon permanent
registration book, and manner of registering, see §§ 47 (1),
(2), (3). As to challenge of person attempting to vote and
additional oath, see § 47 (5). As to the validity of special
registration laws to incur new county, municipal, etc., in-
debtedness, see §§ 443, 444 (3), 6563 and notes.
Editor's Note. — This practice and this oath originated in
the General Registration Daw of 1894 (Acts 1894, p. 116),
and has been amended only by the Registration Act of 1908
(Acts 1908, p. 58). This amendment allowed the tax-col-
lector greater latitude than he was formerly given in the
opening of the voters' books, and it prescribed that the
registrant should make oath to his qualification as an elector
under the constitutional Amendment of 1908 (Acts 1908,
p. 27).
This section and the following section were probably
modified by the Act of 1913, since codified as §§ 47 (1)-
47 (5).
In General. — In order to be entitled to register as a
voter, every person desiring so to do must take a pre-
scribed oath, by which he is required to depose, in ef-
fect, that he possesses, or will by a designated day in the
future possess, all the legal qualifications of a voter. This
oath is set out in the voters' book. Cole v. Meclendon,
109 Ga. 183, 188, 34 S. E. 384; Drake v. Drewry, 112 Ga.
308, 311, 37 S. E. 432.
Necessity for Taking Oath. — Although a person's name
may appear on the registration list he is not a qualified
voter if he has not taken the oath required by this sec-
tion. Chapman v. Sumner School District, 152 Ga. 450,
109 S. E. 129: Stephens v. Ball Ground School District,
153 Ga. 690, 694, 113 S. E. 85.
Substantial Compliance. — The fact that one's name is
signed to the oath in the voters' book will be prima facie
evidence that the oath was administered as required by
this section, and a substantial compliance therewith is
sufficient. Chapman v. Sumner Consolidated School Dis-
trict, 152 Ga. 450, 453, 109 S. E. 129.
Where the attention of the voters was called by the
city registrar to the contents of the registration oath
prescribed by the city code, similar to that of the instant
section, and the voters subscribed their names thereto,
this was a substantial compliance with the requirement
of the city code as to administering such oath, and by an-
alogy with the requirements of this section. Brown v.
Atlanta, 152 Ga. 283, 296, 109 S. F. 666.
§ 37. (§ 39.) Books to be kept open.— The
tax-collector may open as many of said voters'
books as he may deem necessary, and he shall
always keep one of such voters' books open for
signatures, at his office at the county-site, at any
and all times when his office is open for the pay-
ment of taxes or other business; and he shall al-
[20]
§ 38
PERMANENT REGISTRATION
§ 47(1)
so carry with him and keep open for signatures
one such voters' book, in each and all of his visits
to the several militia districts of his county for
the purpose of collecting taxes. Acts 1894, p.
116.
§ 38. (§ 38.) When the books shall be closed.
— 'The tax-collector shall, in each year in which
there is a general election to be held for Governor
and members of the General Asembly, close the
voters' books for said election six months before
the date of the election. Acts 1908, p. 58.
§ 39. (§ 39.) Taxes must be paid six months
before the election.— No one shall be allowed to
register for said election unless he shall have
paid all taxes due by him at least six months be-
fore the date of the election.
ARTICLE 2.
Method of Registering on Voters' Book.
§ 40. (§ 40.) Who may take charge of
books and administer oaths. — Said tax-collector,
or any clerk employed by him and authorized by
him to receipt for taxes in the usual course of his
employment, is hereby empowered to take charge
of said voters' books, and to administer said oath.
When the signature of any person is not clearly
legible, the officer in charge of the voters' book
shall, at the time the signature is made, write out
the same in clearly legible letters opposite or
under said signature. Acts 1894, p. 116.
Although a person's name may appear on the registra-
tion list he is not a qualified voter if his name was en-
tered on the registration list by some person without
authority to make the entry. Chapman v. Sumner Consol-
idated School District, 152 Ga. 450, 109 S. E. 129; Ste-
phens v. Ball Ground District, 153 Ga. 690, 694, 113 S. E.
85. And see Cole v. Meclendon, 109 Ga. 183, 189, 34 S.
15. 384.
A local law compensating a clerk for registration and
preparation of voters' lists is valid. Both this section and
§ 42 refer to the official as "the officer," and when this
section is read in connection with the local law attached
(see § 27, Acts of 1914, p. 1163) it is plain that the lat-
ter law does not contravene § 6573, forbidding the grant-
ing of gratuities to persons, corporations, or associations.
Mayor v. Guerard, 158 Ga. 205, 207, 122 S. E. 691.
§ 41. (§ 41.) Application and method of regis-
tering.— Any male person desiring to be regis-
tered as a voter may apply to ' the tax-collector,
or his clerk as above described, and after reading-
said oath, or having same read to him, shall sub-
scribe the same by signing his name in said
voters' book, underneath the written or printed
oath above described, or on some page following
the one on which said oath is printed or written;
a memorandum or entry of the district or ward
(giving the name of the street, and the number
of his residence, if any, his age and occupation)
in which affiant lives being first made by the
officer in charge of the book, or by the affiant
above the place of signature of the affiant. And
when affiant is not twenty-one years old at the
date of taking the oath, a similar entry or memo-
randum shall, in like manner, be made, showing
the date in that year when he will reach twenty-
one; and when the affiant has not resided in the
State one year or in the county six months at the
date of taking the oath, a similar entry or mem-
orandum shall be made, showing the date in that
year when he will have resided in the State one
[2
year and in the county six months. Acts 1894,
p. 116.
Editor's Note. — By § 47 (3) the qualified voters are re-
quired to sign permanent registration books. After so
signing they are not required to register again.
§ 42. (§ 42.) Oath to be read or repeated at
request of applicant.— -Upon request of the ap-
plicant, the officer in charge of the book shall
read or repeat said oath distinctly to the appli-
cant, and if the applicant can not sign his name,
the said officer shall sign it for him, the applicant
making" his mark thereto.
See notes to § 40.
§ 43. (§ 43.) Signatures prima facie evidence.
— The signatures so made in said voters' books
shall be prima facie evidence that the person so
signing swears, or affirms, the truth of every ma-
terial fact contained in said oath, and also of the
said written memoranda or entries preceding his
signature.
As to prima facie evidence of administration of oath, see
note to § 36.
§ 44. (§ 44.) Race to be noted on book. — For
the purpose of more easily identifying voters, the
officers in charge of the voters' book shall note
thereon, in connection with each signature, the
race of the person signing — that it to say, whether
white or colored.
§ 45. (§ 45.) Collector must be satisfied appli-
cant entitled to register. — No tax-collector shall
allow any person to sign his name in the voters'
book unless he is satisfied, at the time, that the
taxes due by said voter are paid, and that he is
otherwise qualified.
As to illegality of vote by person whose taxes are found
to be unpaid, see § 82, par. 11.
§ 46. (§ 46.) Separate printed oath may be
used. — The tax-collector may use a separate printed
oath for each person, instead of the books hereinbe-
fore named; said printed oaths to be pasted into
a suitable book, from which the list provided for
shall be taken. Signing one of said separate
printed oaths shall be, in all respects, equivalent
to signing in said "voters' books." Acts 1S94, p.
122.
§ 47. Oath must be actually made. — The tax-
collector or his clerk shall in no instance permit a
person to sign the voters' books or any separate
printed oath unless such person shall have actually
made the oath before him thereon contained, and
a violation of this Section by either the tax-col-
lector or his clerk shall be a misdemeanor. Acts
1908, p. 58.
As to violation of this section by tax-collector or his
clerk, see P. C, § 661.
A person cannot be permitted to sign his name in the
voters' book without having actually made the oath
therein contained. Chapman v. Sumner Consolidated School
District, 152 Ga. 450, 456, 109 S. E. 129.
Although a person's name may appear in the registration
list he is not a qualified voter if he has not taken the oath
required by law. Stephens v. Ball Ground School District,
153 Ga. 690, 694, 113 S. E. 85.
ARTICLE 2a.
Permanent Registration.
§ 47(1). Permanent qualification book; ex-
amination by board of registrars. — The Tax Col-
lectors of the several counties of this State are
1]
§ 47(2)
LISTS FURNISHED REGISTRARS
§ 49
required to keep a book to be called the perma-
nent qualification book, upon which all persons
desiring to qualify as electors, shall be required
to qualify as now required by the Constitution and
laws of the State. Such electors upon qualifica-
tion shall sign their names in alphabetical order,
and shall be subject to examination by the Board of
Registrars as now provided by law. Such Board of
Registrars shall have the right, and shall be charged
with the duty of examining each two years the
qualification of each elector entered thereon, and
shall not be limited or estopped by the action taken
at any prior time. Acts 1913, p. 115.
As to the validity of special registration laws to incur
new county, municipal, etc., indebtedness, see §§ 443, 444 (3),
6563, and notes thereto.
Editor's Note. — Registration is made permanent by this
law. It probably modified the existing law (§§ 36 et seq.)
in some respects. The qualification of voters as provided
in the Constitution will be found in this Code, §§ 6395 et
seq.; the statutory qualifications will be found under §§
34 et seq.
Effect of Registration without Qualification.' — Although
the name of a person may appear on the registration list
he is not a qualified voter, or if his name was entered
on the list by some one without authority to make the
entry. Stephens v. Ball Ground Dist., 153 Ga. 690, 113
S. E. 85.
Effect of Subsequent Disqualification. — This section
does not mean that one lawfully registered but subse-
quently disqualified by reason of non-payment of taxes,
or conviction of a crime involving moral turpitude, or
other cause of disqualification, continues to be a quali-
fied voter by reason of registration. The list of regis-
tered voters is subject to revision, and the elimination
of the names of those persons not qualified . to vote and
whose names ai-e improperly included in the list of reg-
istered voters. Chapman v. Sumner Consolidated School
Dist., 152 Ga. 450, 456, 109 S. E. 129.
§ 47(2). Registration lists, how made up. —
Each year the Tax Collectors of the several coun-
ties shall make up the registration lists for the year
as now provided by law by putting on such regis-
tration list the names of such electors as appear on
such permanent qualification book who have duly
paid all taxes due and required of them at least six
months prior to the election for which the registra-
tion list is made up. Acts 1913, p. 115.
Editor's Note.— The requirements regarding the regis-
tration list "as now provided by law" referred to in this
section will be found under §§ 48 et seq.
§ 47(3). Qualified electors signing permanent
qualification book. — The electors who have quali-
fied and have signed the Permanent Qualification
Book, shall not thereafter be required to register or
further qualify, except as may be required by the
Boads of Registrars. And such electors shall in all
cases be entitled to receive the same notice and
shall have the same rights as now given by law;
provided, that no person shall remain registered
longer than he retains the qualification under which
he registered. Acts 1913, p. 115.
For the provision regarding the signature of the vot-
ers' book required by §§ 36-47, see § 41.
§ 47(4). Revision of lists by Board of Regis-
trars.—The Tax Collector shall furnish to the
Board of Registrars the list of persons that he
registers for each year as now provided by law for
furnishing registration lists to such Board of Re-
gistrars. And the said board shall proceed as now
provided to determine whether the list furnished
contains the names of all and only the voters or
electors qualified and entitled to vote at such elec-
tion. Acts. 1913, p. 115.
As to the lists "now required by law" referred to in
[
this section, see §§ 48 et seq. As to the registrar's du-
ties regarding this list, see §§ 55 et seq.
§ 47(5). Challenge of voter. Additional oath.
— When any person desires to vote he may be
challenged and required to take, in addition to the
oath now required, the following oath in writing:
"I do solemnly sware that I am (here insert
name, the same as on registration list). That I duly
qualified as a permanent elector, and at the time
gave my address as (here give address given in
registration book) ; that I have for the last six
months resided at the following addresses (here
give detailed addresses during last six months with
such particularity that the same can be readily
verified or disproved), that I have resided at such
places under the name of (here insert any name or
alias used.)"
Such written oath shall be filed with the man-
ager of the election and preserved. Acts 1913, p. 115.
Editor's Note. — The "oath now required" referred to
in this section will be found in § 36.
Effect of Failure to Take Oath. — Although a person's
name may appear on the registration list he is not a
qualified voter if he has not taken the oath required by
law. Stephens v. Ball Ground School Dist., 153 Ga. 690.
694, 113 S. E. 85. See § 36.
ARTICLE 3.
Lists from Voters' Book and Tax Defaulters
Furnished Registrars.
§ 48. (§ 47.) Lists to be filed with county
registrars — Contents of lists. — Within ten days
after closing the voters' books, as provided in
Section 38, the tax-collector shall file with the
county registrars an accurate and complete list
of all the names signed in the voters' books be-
tween the time when he began collecting taxes
and the closing of said books, arranged in alpha-
betical order, and by militia districts, and city
wards, and also showing the dates in that year
when persons will arrive at full age or will have
resided in the State and county the requisite time,
as sworn to in the voters' books. And said list
shall also show the race of each person — that is
to say, whether white or colored — his age, occupa-
tion, and residence. Acts 1908, p. 58; 1894, p. 117.
Additional requirements regarding making of lists from
permanent registration books will be found under §§ 47 (2),
47 (4).
As to the effect of this section upon a special registration
as provided by the Act of 1916 (Acts 1916, pp. 138-9), see 5
Cum. Dig. 336.
§ 49. (§ 48.) Lists of persons disqualified to
be filed. — The tax-collector, the ordinary, and the
clerk of the superior court of each county shall,
before the 20th day of April of each year, prepare
and file with the county registrars a complete list,
alphabetically arranged, of all persons living in
the county on April 10th of that year, who ap-
pear to be disqualified from voting by reason of
non-payment of taxes since 1877, or by reason
of idiocy, insanity, or conviction of crime whose
penalty is disfranchisement, unless such convict
has been pardoned and the right of suffrage re-
stored to him; and said list shall also show the
race of such person — that is to say, whether
white or colored: provided, that said list of dis-
qualified persons shall consist only of such per-
sons whose names do not appear on the list last
prepared and filed by them. Acts 1899, p. 21; 1908;
p. 58.
22]
§ 50
LIST OF REGISTERED VOTERS. WHO ENTITLED TO VOTE
§ 57
§ 50. (§ 49.) Preparation of such list. — In
preparing said list of disqualified persons, the said
tax-collector, ordinary, and clerk of the superior
court shall act upon the best evidence obtainable
by them, and they shall especially examine and
consider the records of the criminal courts of the
county, the insolvent tax-lists, tax digests, and
tax execution-dockets and tax executions, where-
ever they may be. In the event that there is a
difference of opinion among said three officers
as to whether any name or names shall be placed
on said list of disqualified persons, the concur-
rent votes of any two shall control in the matter.
Acts 1894, p. 118.
§ 51. What constitutes the disqualified list. —
The last list prepared, listed, and filed by them
before December 20th, 1899, taken together with
the list or lists of new names prepared and filed
each year afterwards, shall constitute the list of
disqualified persons as prepared by them for any
one year as the case may be. Acts 1899, p. 21.
ARTICLE 4.
County Registrars, Appointment and Oath.
§ 52. (§ 50.) Appointment of county regis-
trars.— Within thirty days after January 1st, 1895,
and biennially thereafter, the judge of the supe-
rior court of each county shall appoint three up-
right and intelligent citizens of said county as
county registrars, and have the appointment en-
tered on the minutes of the court. Said appoint-
ment shall be for a term of two years and until
their successors are appointed and qualified. The
said judge shall have the right, however, to re-
move said registrars at any time in his discretion,
with or without cause, and at once appoint a suc-
cessor.
The duty devolving upon the judge from this and the fol-
lowing section is an official act, and political interest is not
sufficient to disqualify a judge from hearing a petition for
mandamus against himself requiring him to appoint a bi-
partisan board of registrars, and a petition for injunction to
restrain registrars appointed by him from functioning. El-
liott t. Hipp, 134 Ga. 844, 68 S. E. 736.
§ 53. (§ 51.) Board to be bipartisan. — Said
judge shall not appoint all the registrars from
any one conflicting political interest or party,
and if at any time it shall appear that all the reg-
istrars are from one conflicting political interest
or party, then one of said registrars shall at once
be removed and a successor appointed, so as to
maintain a bipartisan board.
See note to § 52.
The requirements of this section are met when the reg-
istrars appointed are of the same political party though
they be of opposing factions in that party. Eowry v.
Cheatham, 131 Ga. 320, 62 S. E. 226.
§ 54. (§ 52.) Oath of registrars. — Before
entering upon his duties each of the county regis-
trars shall take the following oath before some
officer authorized to administer an oath under the
laws of this State, to wit: "I do solemnly swear
that I will faithfully and impartially discharge, to
the best of my ability, the duties imposed upon
me by law as county registrar."
ARTICLE 5.
List of Registered Voters. Who Entitled to Vote.
§ 55. Duties of registrars. — The registrars
shall, in each year in which a general election is
to be held for Governor and members of the Gen-
eral Assembly, meet on the 20th of April, or the
Monday thereafter if the 20th of April falls on
Sunday, and begin the work of perfecting a true
and correct list of the qualified voters of their
county. The list furnished by the tax-collector
shall be prima facie evidence of the right of the
person whose name appears thereon to register:
in any case where the registrars question the right
cf a party whose name is furnished by the tax-
collector, to register, such person shall be notified
of that fact and be given an opportunity to appear
before the registrars as provided in Section 65.
The registrars shall examine the list furnished by
the tax-collector and compare the same with the
list of disqualified persons, prepared and filed by
the tax-collector, the ordinary, and the clerk of
the superior court, and shall proceed to make up
a list to be known as "registered voters," in alpha-
betical order of names and by militia districts and
city wards, distinguishing in said lists between the
white and colored voters, said list to show the age,
occupation, and residence of said voters. Acts
1894, p. 118; 1908, p. 58.
As to duties of registrars regarding lists as required by
the permanent registration law, see §§ 47 (1) et seq. As
to contents of lists submitted by tax-collector, see §§
48-49. As to procedure in case of any disputed name on
list, see §§ 62-65. As to duties of registrars in general,
see 5 Enc. Dig. 4.
§ 56. (§ 54.) Registered voters. — All names
appearing on the lists taken from the voters'
books, and not appearing on the list of dis-
qualified voters, shall be entered on the list of
"registered voters," unless withheld therefrom as
hereinafter provided. No name appearing on the
list of disqualified voters shall be entered on the
list of registered voters, unless placed thereon as
hereinafter provided. A name appearing on the
list taken from the voters' books, and not appear-
ing on the list of disqualified voters aforesaid,
shall be withheld from the list of registered vot-
ers when the county registrars are convinced by
sufficient legal proof that such person is, in fact,
not qualified to vote. A name appearing on the list
of disqualified voters shall be entered in the list of
registered voters when said name appears on the
list taken from the voters' books, and when, in ad-
dition thereto, the county registrars are convinced,
by sufficient legal proof, that such person was not
disqualified, or that his disqualification has been
removed. No name shall be entered on the list
of registered voters unless it was signed in the
voters' books as shown by the list taken there-
from. Acts, 1894, p. 119.
As to preparation of list of disqualified voters, see §5
49-51. As to preparation of lists of additional voters for
an intermediate or a special election, see § 61.
Under §§ 56, 62, and 63, a ballot cast at a given elec-
tion by one whose name appeared upon the "voters' book"
should not be rejected from the court because the voter
was not, at the time of signing his name in that book, en-
titled to do so, if prior to the election he removed his dis-
qualification and lawfully procured the registrars to place
his name upon the list of "registered voters." Drake v.
Drewry, 112 Ga. 308, 37 S. E. 432.
§ 57. Where the work shall be completed. —
The registrars shall proceed with their work
and complete the same not later than June 1st.
In any county in wThich, in the opinion of the
judge of the superior court, one board of regis-
3]
§ 58
LIST OF REGISTERED VOTERS. WHO ENTITLED TO VOTE
§ 61
trars can not complete the work by June 1st, the
judge of the superior court in his discretion can
appoint one or more assistant boards of regis-
trars with like duties and responsibilities, and the
work shall be divided as the regular board ma}'
direct. Provided, that should the said registrars
for any cause fail or refuse to make up and file
said list of registered voters within time now re-
quired by law, then the said registrars may, at
any time before the 20th day of August during
the year in which general elections in this State
are held, make and file such list of registered vot-
ers. Provided further this Act shall not be con-
strued to change existing laws with reference to
special elections. Acts 1908, p. 58; 1924, p. 47.
This section, which was taken from the Registration Act
of 1908 (Acts 1908, p. 59), has been amended since the adop-
tion of the Code of 1910. By the Act of August 16, 1924
(Acts 1924, p. 47), the provisos now appearing were added. —
Ed. Note.
§ 58. Registered voters' list to be filed. —
Within five days after completing the list of
voters, as provided in this Article, the registrars
shall file with the clerk of the superior court of
their county a complete list of the registered
voters of the county as prepared and determined
by them. Said list shall be alphabetically ar-
ranged by militia districts, and, in case a city is
located in the county, by wards of the city, and
said list shall be the list of registered voters for
the general election to be held in said year for the
Governor and other State officers and members
of the General Assembly, and no person shall vote
or be allowed to vote at said general election, or
at any party primary to nominate candidates for
the offices to be filled at said general election, un-
less his name is upon the said registration list so
filed by said registrars, and no person whose
name is not on said list shall vote or be allowed
to vote at any other election or primary except
as hereafter provided in this chapter.
As to the constitutional duty of the registrars to prepare
a roster of voters, see § 6399. As to primary elections, see
§ 127 et seq.
Where an ordinary made up the list of qualified voters
in an irregular manner, in that the names were taken from
the voters' book of the tax-collector instead of from the
list made by the registrars and filed with the clerk of the
superior court, as required by this section of the Code, the
mere fact that in thus arriving at the names embodied in
the list legally certified and furnished by him he may have
proceeded in an irregular manner would not operate to
vitiate the election, where it does not also appear that the
list as certified and furnished to him was in fact incorrect.
Powell v. Consolidated School District, 26 Ga. App. 135,
105 S. E\ 616.
§ 59. Persons entitled to vote. — Each person
whose name is upon the registration list for the
general election provided for in the foregoing
section shall be entitled to vote at the general
State election for said year and all primaries to
nominate candidates for offices to be filled at said
general State election and also at the Federal elec-
tion in November of said year, and the election
for Justices of the Peace and Constables to be
held in said year, and at all primaries for the
nomination of candidates for the offices to be
filled at said elections, and also at all primaries
for nomination for county offices, and all other
primaries and elections to be held for any pur-
pose during said year after the filing of said regis-
tration list or during the succeeding year, pro-
vided that such person is not otherwise disquali-
fied from voting at any election or primary held
during such succeeding year, and provided that
no person shall be qualified to vote at any elec-
tion unless he shall have paid all taxes due at
least six months before the same, except when
said election is held within six months from the
expiration of the time fixed by law for the pay-
ment of said taxes.
See § 34. For provision requiring payment of taxes be-
fore voting, see § 39.
§ 60. Supplemental registration list. — If any
person whose name is not on said registration
list, desires to vote at the Federal election in
November of the said year or at any other elec-
tion or primary subsequent to the general State
election whether in the said year or the succeed-
ing year, he shall, upon paying all taxes due by
him, at least six months before the election at
which he desires to vote, if otherwise qualified,
have the right to take the oath and subscribe the
same in the voters' book. And the tax-collector
shall, six months before every such election other
than the general State election, close his voters'
book for said election and within five days file
with the registrars a list of all names signed in
the voters' books who have so qualified themselves
to vote for such election in the same manner and
with the same information as now required by
law in filing lists of persons registering as voters,
and the registrars shall within twenty days there-
after pass upon the same as provided in regard to
the list originally furnished and shall within said
twenty days file with the clerk of the superior
court a supplemental registration list showing the
names of additional voters who are entitled to
vote at such election, subsequent to the general
state election, and any person whose name ap-
pears upon said list may vote at such election and
at any primary to nominate candidates for offices
to be filled at such election, provided that the
registrars shall purge said list, before filing it, of
the names of all persons who will not be quali-
fied at such election, in the same manner as pro-
vided for preparing and purging the registration
list for the general State election. And all voters
on said list shall have the same rights as to elec-
tions subsequent to such election as persons on
the list for the general election. Provided, that at
any special election, the provisions of the next
succeeding section shall be followed as to regist-a-
tion and voting. Acts 1911, p. 167.
As to when voters' books are closed, see § 38; and as to
when taxes must be paid, see § 39. As to contents of gen-
eral registration lists, see § 48.
Editor's Note. — Quaere as to whether amending act con-
formed to requirements of § 6445.
This section, codified in 1910 from the Registration Act of
1908 (Acts 1908, p. 61), was amended in 1911 (Acts 1911, p.
167). By the latter act the words "and who has not pre-
viously paid all taxes due by him," appearing in the sec-
ond and third lines of this section in the Code of 1910, were
stricken out; and the proviso now appearing at the end of
the section was substituted for the proviso appearing in that
code which limited the application of § 61 to special elec-
tions occurring "during the year succeeding the year of the
general election, within six months from the expiration of
the time fixed by law for the payment of taxes."
§ 61. Additional registration list. — Any per-
son who has registered for any general election
shall, if otherwise qualified to vote at any special
election before the next said general election, be
listed and entitled to vote at such special election.
[24]
§ 61(1)
HEARING BEFORE REGISTRARS
§ 62
Within five (5) days after the call of said special
' election, the tax collector shall close his voters'
books, and within five (5) days thereafter he shall
file with the county registrars an accurate and
complete list of all names signed in said voters'
book since the close of the voters' book for the
last general election and not before filed with said
registrars for the last general election, said list to
be made out and arranged as provided in Section
48. Within five days thereafter the registrars shall
file with the Clerk of the Superior Court said sup-
plemental registration list showing the names of
additional voters who are entitled to vote at said
special election, and any person whose name ap-
pears upon said list may vote at such special elec-
tion and at any primary to nominate candidates
for officers to filled at such special election, but
the registrars shall purge said list before filing it
of all persons who will not be qualified to vote
at said election in the same manner as preparing
and purging the registration list for the general
election. It shall, furthermore, be the duty of the
registrars upon the call of a special election to
purge the list of registered voters prepared for
the last general election of any names subse-
quently disqualified by failure to pay taxes becom-
ing due subsequent to the last general election,
and it shall be the duty of the registrars to furnish
to the managers of said special election two (2)
iists, one composed of the list of voters entitled
to vote by reason of their registration for the last
general election, and the other made up of those
entitled to vote by their subsequent registration as
hereinbefore provided for, and if a primary is held
for said special election, it shall be the duty of the
registrar to furnish said lists also to the managers
of said primary in time for use in said primary,
and no one shall be entitled to vote either in said
special election or in said primary unless his name
is upon one of the lists furnished by the regis-
trars. Acts 1911, p. 167.
For the duties of the tax-collector, see § 36; and for the
duties of the registrars, see § 55.
Editor's Note. — Quaere, as to whether the act conformed
to the requirements of § 6465.
This section originated in the General Registration Law
of 1894 (Acts 1894, p. 122). It was amended^ in 1897 (Acts
1897, p. 95) and in 1908 (Acts 1908, p. 62). In 1911 (Acts
1911, p. 167), however, the whole section was repealed and
re-enacted in its present form. The time for closing the
voters' books is changed in the new section, there are added
detailed directions to the registrars, and finally, the sec-
tion is related to primary elections.
ARTICLE 5a.
Discharged Soldiers' and Sailors' List.
§ 61(1). Compilation of list authorized. — The
tax collectors of the several counties of this State
shall, upon application therefor by any persons
discharged from the United States Army or Navy,
place the name of such person upon a list to be
known as "Discharged Soldiers' and Sailors' List/'
which shall be kept in his office, open to public
inspection, during office hours. Acts 1920, p. 145.
§ 61(2). Eligibility of persons listed. — The name
of no person shall be placed upon said list unless
the following requirements are complied with:
Such persons shall apply to the tax collector of
the county of which he was a resident before en-
tering the service of the United States, and shall
take and subscribe an oath before said official, his
lawful deputy or any other officer of this State
authorized to administer an oath, stating his
name, age, residence and occupation at date of
entering the service, and also the exact date and
place of entering the service; and shall produce
to the tax collector, for his inspection, the orig-
inal or a certified copy of his discharge signed by
the proper official of the United States Army or
Navy; and if it shall appear to said tax collector
that said discharge is regular and in proper form
and upon payment to said tax collector of all taxes
due the State and county except poll taxes and
road taxes which may have accrued within six
months previous to his entry with the service of
the United States, and also poll taxes and road
taxes which may have accrued within six months
after his discharge the name of said person shall
be placed upon said "Discharged, Soldiers' and
Sailors' List." Acts 1920, p. 145.
§ 61(3). Registration lists fee county elec-
tions.— The tax collector shall furnish said list to
the Board of Registrars of the several counties
before or at the time of making up the regular
bi-ennial or any special registration list for elec-
tions to be held in said county; and all persons
whose names appear on said list shall, if not other-
wise disqualified, be entitled to vote at any elec-
tion held in said county and shall not be disquali-
fied on account of non-payment of poll taxes and
road taxes which may have accrued within six
months previous to their entry into the service of
the United States or within six months after their
discharge: Provided, however, that nothing herein
shall be construed to permit any person to vote
who may be disqualified for cause other than as
above set forth. Acts 1920, p. 145.
§ 62.
ARTICLE 6.
Hearing Before Registrars.
(§ 55.) Persons unlawfully denied right
to sign voters' book. — Any person, who, after ap-
plication, was unlawfully denied the right to sign
the voters' book, may have his name placed upon
the list of registered voters, upon satisfactory
showing made to the registrars that he is entitled
to be registered. The county registrars shall not
be confined to the evidence furnished by the list
of disqualified voters, but may have access to the
original papers or books from which said lists
were compiled, and may hear any competent writ-
ten evidence or oral testimony, under oath, con-
cerning the disqualification of any person whose
name appears on the list taken from the voters'
books. The county registrars may likewise hear
any competent written evidence or oral testi-
mony, under oath, concerning the removal of the
disqualification of any person whose name ap-
pears on the list of disqualified voters. The
names of all persons who were not of age, or who
had not resided in the State and county the
requisite time at the date of signing the oath in
the voters' books, shall be placed on the proper
lists prepared for any election occurring after
the date when such persons reached full age or
have resided in the State and county the requisite
time. Acts 1894, p. 119.
See note to § 56.
For constitutional provisions, see §§ 6400, 6401. As to
[25]
§ 63
BALLOTS, BY WHOM AND WHERE CAST
§ 70
procedure on taking such appeal, see § 34, par. 6; and as
to when an appeal lies to the superior court, see § 4998.
As to procedure when registrars question a voter's qualifi-
cation, see §§ 55, 65. As to requirement that these pro-
ceedings be public, see § 75.
"Where persons are unlawfully denied the right to sign
the voters' book they may present proofs to the registrars
that they are entitled to be registered, and the procedure
is sufficiently formal to comply with the constitutional guar-
antees of due process of law and of the equal protection of
the laws." Bearden v. Davis, 139 Ga. 635, 77 S. E. 871.
§ 63. (§ 56.) Production of books, etc., may
be required. — For the purpose of determining the
qualification or disqualification of persons as
aforesaid, the county registrars shall have the
power to require the production of books, papers,
etc., upon one day's notice, and, upon like notice,
to subpoena and swear witnesses. If the county
registrars shall differ among themselves upon any
question coming before them, the concurrent
votes of two of said registrars shall control. Acts
1894, p. 119.
§ 64. (§ 57.) Service of summons, etc. — The
sheriff, his deputy, or any lawful constable of
said county may serve all summons, notices, and
subpoenas, as issued by said county registrars,
and receive such compensation as is customary
for like services. Acts 1894, p. 120.
§ 65. (§ 58.) Disputed right to have name on
book placed on list. — If the name of any person
appears on the voters' book whose right to have
his name placed upon the list of registered voters
is questioned by the registrars, said registrars
shall give said person at least one day's notice of
the time and place of hearing the question; which
notice shall be in writing and served upon said
person, either personally or by leaving the same
at his most notorious place of abode. Acts 1894,
p. 120.
As to right of individual to appeal to registrars, see §
34, par. 6; and as to right of registrars to question an in-
dividual's qualification, see § 55.
Where, in a contest before the registrars by individuals
whose names the registrars refused to put on their lists,
the pleadings raised no question as to whether the voters
had placed their names in the voters' book as required.
Section 62 and this section of the Code do not apply. Bear-
den v. Davis, 139 Ga. 635, 77 S. E. 871. See also, note to
§ 62.
§ 66. List open to inspection and proceedings
to contest right to register. — The list from the
voters' books furnished by the tax-collector to the
registrars, shall be open to public inspection, and
any citizen of the county shall be allowed to con-
test the right of registration of any person whose
name appears upon the voters' list, and upon fil-
ing a contest as to the qualifications of the voter
the registrars shall notify said voter and shall
pass upon said contest. Each challenge shall
specify the grounds of the challenge, and when
notice is given the voter by the registrars, a copy
of such challenge shall be furnished the challenged
voter at least one day before passing upon the
same. Acts 1908, p. 58.
For other sections to the same effect, see §§ 14, 74.
ARTICLE 7.
List of Voters Furnished Election-Managers.
§ 67. (§ 59.) Lists to be furnished election-
managers. — The county registrars, shall, at or
before the hour appointed for opening the polls,
place in possession of the managers of the election
at each voting precinct in the county one or more
printed or clearly written copies of the lists of-
registered voters for such militia district or city
ward in which the voting precinct is situated, said
lists to contain all the information hereinafter
provided for; and the county registrars shall, in
like manner, place in possession of the election-
managers of the voting precinct at the court-
house, at the county-site, proper lists for each
militia district, the voting precinct of which is
situated outside of an incorporated town. Said
lists of registered voters shall be duly authenti-
cated by the signature of two of said county
registrars. Acts 1894, p. 120.
As to validity of authentication by majority of regis-
trars, see § 4, par. 5. See generally, 5 Enc. Dig. 4.
ARTICLE 8.
Ballots, by Whom and Where Cast.
§ 68. (§ 60.) No one may vote whose name
not on list. — All persons whose names appear on
the list of registered voters placed in possession
of the election-managers, and no others, shall be
allowed to deposit their ballots according to law,
at the voting precinct of the militia district or
city ward in which they are registered, but not
elsewhere, except as hereinafter provided. If in
any city ward or militia district a voting precinct
is not established and opened, the county
registrars shall furnish to the election-managers
at the voting precinct at the court-house, ,at the
county-site, the lists of registered voters of such
ward or militia district, and persons whose names
appear on such lists shall be allowed to vote at
the voting precinct at the court-house, at the
county-site, under the same rules that would have
governed if a voting precinct had been established
and opened in said ward or militia district. Acts
1894, p. 120.
As to arrangement of lists, see § 58. As to persons en-
titled to vote, see § 59; but for qualifications, see §§ 70, 71,
130. As to manner of conducting an election, see § 82.
Managers Bound by Registrars' Lists. — The list of reg-
istered voters furnished by the registrars to the managers
of the election absolutely controls the managers, and they
have no power or authority to allow any one to vote whose
name is not on the list, nor to refuse any one the right
to vote whose name is on the list. Cole v. McClendon, 109
Ga. 183, 188, 34 S. E. 384.
Election Held out of Precinct. — Where an election was
held at a place three miles from that which had been es-
tablished as an election precinct, it was illegal, and there
was no error on the part of the ordinary in refusing to
count the vote so cast. Walker v. Sanford, 78 Ga. 165, 1
S. E. 424.
§ 69. (§ 61.) Oath to be taken in such cases.
— If any person shall offer to vote at the precinct
at the court-house, at the county-site, whose name
does not appear on the lists for that ward or
militia district, but does appear on the lists for
one of the militia districts in which the voting
precinct is situated outside of an incorporated
town, such person shall be allowed to vote at
the court-house, at the county-site, upon taking
the following oath, to be administered by one of
the managers: "I swear, or affirm, that I have
not voted elsewhere in this election." Acts 1894,
p. 120.
As to marking a challenged vote, see § 82, par. 4.
§ 701 (§ 34.) Voters transferred from one
district or county to another. — When any portion
of a county is changed from one county or one
[26]
§ 71
INSPECTION OF LISTS AND BOOKS
§ 75
district to another, the persons who would have
been qualified to vote in the county or district
from which taken, at the time of any election,
shall vote in the county or district to which they
are removed, and if required to swear, the oath
may be so qualified as to contain this fact. This
provision, when applicable, appertaining also to
military elections.
§ 71. Voter changing residence. — If any per-
son shall change his residence from one militia
district to another or from one county to another
between the time of paying his taxes and sign-
ing the oath in the voters' book and the time of
any election in the district or county into which
he removes at which he would be qualified to
vote, he shall have the right, upon application to
the registrars and satisfactory proof before them
that he will be qualified to vote at said election,
to have his name placed upon the list of registered
voters for the district or county into which he has
removed, for said election, with the same rights
as others registered for said election. Acts 190S,
p. 58.
§ 71(1). Registration and voting out of dis-
trict of voter. — It shall be lawful for any quali-
fied voter to register and vote at the voting
precinct nearest his residence, though such pre-
cinct may be in a district other than that of the
residence of such voter. Any qualified voter
desiring to vote at any precinct other than the
one in the district in which he resides, and such
precinct is nearer the residence of such voter
than the regular voting precinct of his district he
may upon registration, register in such other
district by making an affidavit that such voting
precinct in such other district is the nearest vot-
ing precinct to his residence. And a voter who
is registered in the district of his residence may,
by making said affidavit, be transferred to such
other district by the registrars; provided he
makes said application before the registrars be-
gin the making of the voters list for an election.
Provided, further, that nothing in this Act shall
be construed to give a voter the right to register,
or transfer his registration to a district in any
county other than the county of his residence. A
voter so registered, shall be entitled to vote in
such other district, if qualified in all other
respects, upon all matters and elections not con-
fined solely to such other district. This Act
shall not apply to a district or districts in which
is located any town or city with a population not
exceeding ten thousand and in counties having
a population of more than 45,000 by U. S. Census
of 1910. Acts 1919, p. 272.
ARTICLE 9.
Lists Returned by Managers.
§ 72. (§ 62.) Return of lists by election-
managers. — The managers of the elections at the
different precincts shall return the lists of
registered voters to the clerk of the superior court,
by which officer said lists shall be kept open for
public inspection, and by said officer placed with
the foreman of the next grand jury for such ac-
tion as may be deemed proper by the grand jury.
Said list is not to be placed with said clerk until
after examination by the board of consolidation.
Acts 1894, p. 121.
As to examination of the lists by grand jury, see § 85.
For general provision on the return by the managers, see
§ 133.
ARTICLE 10.
Payment of Tax-Collectors, Registrars, etc.
§ 73. (§ 63.) Compensation. — For each name
signed in the voters' books the tax-collector shall
receive the sum of five cents. For each new name
on the list of disqualified voters each year pre-
pared, listed, and filed by them, the tax-collector,
ordinary, and clerk of the superior court shall
each receive the sum of one and one-half cents:
Provided, that in all cases they shall receive each
at least two dollars per day. For each day the
county registrars may be actually engaged in the
discharge of their duties, they shall each receive
the sum of two dollars. All of said sums are to
be paid out of the county treasury as other county
bills are paid: Provided, however, that the
county commissioners of any county shall have
the power to fix a different compensation for the
above-named officers in their respective counties;
and in counties having no county commissioners,
such power to change the compensation herein
provided shall belong to that officer or officers
exercising the power usually vested in county
commissioners. The cost of the voters' books and
of printing the lists provided for shall be paid out
of the county treasury as other county bills are
paid. Acts 1894, p. 121; 1899, p. 21.
For constitutional provisions in regard to levying taxes
for this purpose, see § 6562. As to compensation of officers
when no fees are fixed, see § 6001. For construction of a
special act on same subject, see 5 Fnc. Dig. 8.
In Mayor v. Guerard, 158 Ga. 205, a special act (Acts
1919, pp. 1294, 1310) requiring a city to pay the registration
clerk in the county tax-collector's office a certain annual
stipend for his work in connection with the registration of
voters and preparation of voters' lists in municipal prima-
ries and elections, was not to be void on the ground that
it violates the inhibition contained in the constitution against
the granting of a donation or gratuity in favor of any person.
ARTICLE 11.
Inspection of Lists and Books.
§ 74. (§ 64.) Inspection of books, etc. —
Said voters' books and lists taken therefrom, said
list of disqualified persons, said lists of registered
voters, shall be at all times open to reasonable in-
spection of any citizen of the county, but shall
not be removed for such inspection from the
custody of the ordinary or other officer in charge.
At the end of each j^ear the tax-collector shall file
all said voters' books in the office of the ordinary
of the county, and the county registrars shall also
file, at the end of each year, in the office of the
ordinary, certified copies of the lists of registered
voters prepared for each election. Acts 1894, p.
121.
§ 75. (§ 65.) Proceedings of registrars to
be public. — All the duties herein required of the
county registrars and all hearing of evidence
upon the qualifications of voters shall be dis-
charged and had in public. Acts 1894, p. 122.
For other sections to the same effect, see §§ 14, 66.
[27]
§ 76
ELECTIONS; WHEN AND HOW HELD
§ 81
CHAPTER 3.
Elections for Members of the General Assembly.
ARTICLE 1.
Managers of Elections; Qualifications and Oath.
§ 76. (§ 66.) Superintendent of elections for
members of the legislature. — The persons quali-
fied to hold such elections are ordinaries, jus-
tices of the peace, and freeholders. There must
be three superintendents, and one must either
be an ordinary or a justice of the peace, ex-
cept in a certain contingency hereinafter to be
set forth. Persons who can not read and write
shall not be competent to serve as managers of
elections in this State. Acts 1880-1, p. 151.
See 5 Fnc. Dig. 7.
For conditions under which three freeholders may su-
perintend election, see §§ 81, 116. For general provisions
applicable to all elections, see § 94.
Effect on Election When Manager Disqualified. — Where
an election was held and at one precinct one of the superin-
tendents was neither an ordinary, justice of the peace nor
freeholder, the election was illegal. Walker v. Sanford, 78
Ga. 165, 1 S. F. 424. But in State 'v. Blue Ridge, 113 Ga.
646, 38 S. F. 977, the court declined to be bound by the fore-
going decision because it had been rendered by only two
judges and held that allegations that the election was not
free and fair would be necessary to invalidate it upon this
ground.
§ 77. (§ 67.) Superintendent to take oath. —
Before proceeding with the election, each super-
intendent must take and subscribe the following
oath: "All and each of us do swear that we will
faithfully superintend this day's election; that we
are ordinaries, justices of the peace, or free-
holders (as the case may be) of this county; that
we will make a just and true return thereof, and
not knowingly permit any one to vote unless we
believe he is entitled to do so according to the
laws of this State, nor knowingly prohibit any
one from voting who is so entitled by law, and
will not divulge for whom any vote was cast, un-
less called on under the law to do so. So help
me God." Said affidavit shall be signed by the
superintendents in the capacity each acts, in full,
both as to name and station, and not by abbrevia-
tion.
A superintendent of elections, having taken the oath pre-
scribed in this section, is not criminally liable in the ab-
sence of fraud or malice when under a mistaken interpre-
tation of the Constitution he denies an elector the right to
vote. Seeley v. Koox, 21 Fed. Cas. No. 12, 630.
§ 78. (§ 68.) Oath of superintendent, before
whom taken.— Said oath shall be taken before
some officer qualified to administer an oath, if
present, and if none such are on the spot and act-
ing at the time required, then said superintendents
may swear each other, and the oath shall be of
the same effect as if taken before a qualified of-
ficer.
As to taking of oath when three freeholders manage the
-election, see § 81.
Substantial Compliance. — Where two freeholders who meet
with a justice of the peace for the purpose of holding and
managing on election subscribe to the oath prescribed by
law and the justice attests the same, there is a sufficient
compliance with this section. Tanner v. Deen, 108 Ga. 95,
33 S. F. 832.
Failure to administer an oath to a manager of an elec-
tion will not invalidate it. Tanner v. Deen, 108 Ga. 95, 33
S. F- 832; Jossey v. Speer, 107 Ga. 828, 33 S. F. 718.
ARTICLE 2.
Election Precincts.
§ 79. (§ 69.) Election Precincts.— Such elec-
tions shall be held at the court-houses of the re-
spective counties, and if no court-houses, at some
place within the limits of the county-site, and at
the several election precincts thereof, if any es-
tablished or to be established. Said precincts
must not exceed one in each militia district, ex-
cept in militia districts lying in whole or in part
in incorporated cities, towns and villages, in which
militia districts as many precincts may be estab-
lished as may be necessary and convenient for the
holding of such elections. Such precincts are
established, changed, or abolished by the ordi-
naries at a regular term of their court, descriptions
of which must be entered on the minutes at the
time. Acts 1893, p. 29.
For constitutional provision that a private corporation may
not change an election precinct, see § 6446. As to gen-
eral powers or ordinaries over election precincts, see §
4796, par. 4. As to allocation of voters by precincts, see
§§ 68, 69.
ARTICLE 3.
Elections; When and How Held.
§ 80. (§ 70.) Elections, how and when held,
— The day of holding such elections is Tuesday
after the first Monday in November and bien-
nially thereafter, and the time of day for keeping
open the elections is from seven o'clock a." m. to
six o'clock p. m., at the court-house, and from
eight o'clock a. m. to three o'clock p. m., at the
precincts. In incorporated towns and cities hav-
ing more than one election precinct situated in
the corporate limits of such incorporated town or
city, such precincts, at all elections held, shall be
kept open from 7 o'clock a. m. to 6 o'clock p. m.,
and when there are in such incorporated towns
or cities other precincts than the court-house
precinct for the holding of elections, the elections
in such precincts shall be kept open for the same
time and during the same hours as provided by
law for keeping open elections at the court-house.
Acts 1865-6, p. 24, 1898, 93; 1914, p. 47.
For constitutional provisions, see § 6416. As to time
for electing members of Congress, see § 97. As to time for
holding elections in counties of population between 11,709
and 11,712, see § 138 (21).
By the Amendatory Act of 1914 (Acts 1914, p. 47) the
day of election was changed from the first Wednesday
in October to the Tuesday after the first Monday in No-
vember, the day of Congressional elections. The second
part of this section was added by the Act of 1898 (Acts
1898, p. 93).— Fd. Note.
The only standard of time in computation of a day, or
hours of a day, recognized by the laws of Georgia, is the
meridian of the sun; and a legal day begins and ends at
midnight, the mean time between meridian and merid-
ian, or 12 M o'clock post meridian. Henderson v. Reynolds,
84 Ga. 159* 10 S. F. 734.
§ 81. (§ 71.) Three freeholders may superin-
tend election. — If by ten o'clock a. m., on the day
of election, there is no proper officer present
to hold the election, or there is one and he refuses,
three freeholders may superintend the election,
and shall administer the oath required to each
other, which shall be of the same effect as if taken
by a qualified officer.
For other instance when three freeholders may man-
age an election, see § 116. For the general law to which
this section is an exception, see §§ 76, 78. For standard
in computing time of day, see note to § 80.
28 ]
§ 82
ELECTIONS; WHEN AND HOW HELD
§ 82
§ 82. (§ 72.) Manner of conducting elections.
— All superintendents shall have such elections
conducted in the following manner:
1. Ballot. The vote shall he given by ballots.
2. Superintendents and clerks. There shall be
kept by the superintendents, or by three clerks
under their appointment, three lists of the names
of voters, which shall be numbered in the order
of their voting, and also three tally-sheets.
3. Ballots marked. As each ballot is received,
the number of the voter on the list shall be
marked on his ballot before being deposited in the
box.
4. Challenge. When any voter is challenged
and sworn, it shall be so written opposite his name
on the list, and also on his ballot.
5. Preservation of order. In order to promote
the more efficient preservation of peace and good
order on all days of election in this State, the
managers of elections shall be authorized to
employ, when deemed necessary, a sufficient num-
ber of temporary police, whose duty it shall be to
guarantee all legal voters, irrespective of race or
color, the free exercise of the right of franchise:
Provided, that this provision shall not refer to
cities and towns having a legalized police force.
6. Count, when to begin. The superintendents
may begin to count the votes at any time in their
discretion, but they shall not do so until the polls
are closed, if a candidate in person, or by written
authority, objects.
7. Tally-sheet. When the votes are all counted
out, there must be a certificate, signed by all cf
the superintendents, stating the number of votes
each person voted for received; and each list of
voters and tally-sheet must have placed thereon
the signature of the superintendents.
See note at end of section.
8. Tally-sheet sent to county-site. The super-
intendents of the precincts must send their certi-
ficates, and all other papers of the election, in-
cluding the ballots, under the seal, to the county-
site for consolidation, in charge of one of their
number, which must be delivered there by twelve
o'clock m., of the next day. Such person is al-
lowed twro dollars, to be paid out of the county
treasury, for such service.
See note at end of section.
9. Consolidation and returns to secretary of
state. The superintendents, to consolidate the
vote of the county, must consist of all those who
officiated at the county-site, or a majority of them,
and at least one from each precinct. They shall
make and subscribe two certificates, stating the
whole number of votes each person received in
the county; one of them, together with one list
of votes and one tally-sheet from each place of
holding the election, shall be sealed up and, with-
out delay, mailed to the secretary of state; the
other, with like accompaniments, shall be directed
to the clerk of the superior court of the county,
and by him deposite in his office. Each of said re-
turns must contain copies of the original oaths
taken by the superintendents at the court-house
and precincts. Acts 1921, p. 91; Acts 1869, p. 23.
See note at end of section.
10. Separate consolidation of vote for Governor.
[2
At the election for Governor a third package
must be made up, containing a certificate for the
Governor's vote alone, together with the other
papers of the election, as in the case of members
of the general Assembly, which shall be directed
by mail to the President of the Senate and
Speaker of the House of Representatives, and
transmitted to the Secretary of Stale.
11. Illegal votes to be rejected. If any voter
shall vote who has not paid his taxes, and been
registered, his vote shall be illegal and the com-
missioners who consolidate their returns of the
election shall not count such votes in making out
the returns.
12. Ballots not to be examined. The ballots
shall not be examined by the superintendent or the
bystanders, but shall be carefully sealed in a
strong envelope (the superintendents writing their
names across the seal), and delivered to the clerk
of the superior court, by whom they shall be
kept unopened and unaltered for sixty days, if
the next superior court sits in that time — if not,
until after said term — after which time, if' there is
not a contest begun about said election, the said
ballots shall be destroyed without opening or ex-
amining the same, or permitting others to do so.
And if the clerk shall violate, or permit others to
violate this section, he and the person violating
shall be subject to be indicted. Such clerk shall
deliver said list of voters to their respective grand
juries on the first day of the next term of the
superior court, and on failure to do so, is liable
to a fine.
See note at end of section.
13. Pay of managers and clerks. The county
authorities who have control of the county af-
fairs, shall fix and prescribe in each voting pre-
cinct, before the day on which the elections are
held, such compensation as they deem reasonable
for managers and clerks of election, and in case
said county authorities fail to fix and prescribe
such compensation, each manager shall receive
two dollars, and each clerk, not exceeding three
at a precinct, one dollar, to be paid by the county
treasurer on order by county authorities; pro-
vided, this section shall not apply to municipal
elections. Acts 1874, p. Ill, § 15. Acts 1896, p. 40.
As to offenses in respect to the manner of conducting
elections, see P. C, §§ 657 et seq. As to requirement for
providing official ballot, see § 134.
Paragraph 7 — Directory. — The provision of this paragraph
relating to signatures of the superintendent is directory not
mandatory. Tanner v. Deen, 108 Ga. 95, 33 S. E- 832; Haiser
v. Hortley, 157 Ga. 137, 144, 120 S. E- 622.
Paragraph 8. — The election managers for a malitia dis-
trict must consolidate the vote of the precincts therein be-
fore turning the returns over to the ordinary. Dyson v.
Pope, 71 Ga. 205.
The superintendents consolidating returns can not law-
fully refuse to receive and count a vote of a precinct when
list received after twelve o'clock but before consolidation.
Tanner v. Deen, 108 Ga. 95, 33 S. E. 832.
Paragraph 9. — See 5 Enc. Dig. 12.
For constitutional provisions on election returns, see §
6409. For provisions relating to election of the governor,
see §§ 6473, 95.
Same — Editor's Note.— This section is first found in the Code
of 1863, § 1234. par. 8. In Napier v. McLendon, 151 Ga.
559, 107 S. E. 542, the court construing the Act of August
19, 1918 [Acts 1918, p. 154], codified as § 120 (1), in the
light of §§ 6409, 94, and this section, held that the returns
for the election of the attorney-general were to be sent to
the governor rather than to the secretary of state. To rem-
edy this situation in 1921 (Acts 1921, p. 91) the section was
amended to direct that the returns mentioned be sent to
§ 83
CAMPAIGN EXPENSES
§ 92
the secretary of state rather than to the governor. This
section now conforms to the law as codified in § 120 (2).
Same — Directory Provisions. — The provisions of this par-
agraph are directory, not mandatory. Houser v. Hartley,
157 Ga. 137, 144, 120 S. E. 622.
Same — Mandamus. — A writ of mandamus to compel the
performance of the duties prescribed by this paragraph,
must be directed to all the superintendents who participate
in holding the election. Deen v. Tanner, 106 Ga. 394, 32
S. E- 368. See 5 Enc. Dig. 13.
Same— Consolidation without Actual Returns Illegal.—
After mandamus has issued commending consolidation, a
so-called consolidation made by a majority of the super-
intendents without having the actual returns from the dis-
tricts is illegal. Tanner v. Deen, 108 Ga. 95, 33 S. E- 832.
Paragraph 12. — Where a manager of a county election
opens and reads the ballots as they are cast, though such
practice be in violation of the law and most represensible,
nevertheless it will not constitute sufficient ground for viti-
ating the election unless the contestants show clearly how
many and which voters were deterred from voting against
the consolidated result of the election and that such votes
would have changed the result. Cole v. McClendon, 109
Ga. 183, 34 S. E- 384.
Paragraph 13.— Where a special act provides a certain per
dies compensation for managers and clerks in holding elec-
tions in a certain county they shall be entitled to com-
pensation not only for the day on which the voting is done,
but also for the next day when their service shall be nec-
essary in completing the count and making up returns.
Early County v. Powell, 94 Ga. 680, 20 S. E. 10.
ARTICLE 4.
Penalty for Managers' Default.
§ 83. (§ 73). Penalty where superintendents
fail. — If said superintendents do not deliver said
lists and accompaniments to said clerks within
three days from the day of the election, they are
liable to indictment. Any superintendent of an
election, failing to discharge any duty required of
him by law, is liable to a like proceeding and
penalty.
Election Not Made Void. — This provision is for a criminal
procedure against the officer, not for nullifying the elec-
tion. Coleman v. Board of Education, 131 Ga. 643, 656, 63
S. E. 41.
§ 84. (§ 74.) In case superindents make false
return, etc. — If the superintendents or officers of
such election shall make a fraudulent return
thereof, or they or either of them, while so offi-
ciating, shall influence or attempt to influence or
persuade any voter not to vote as he designed, of
shall take any undue means to obtain a vote, they
shall forfeit for the offense one hundred dollars
to be recovered by information, and if the person
be a justice, he forfeits his office on proceedings
for removal.
As to applicability of this and the preceding section to
all elections, see § 94, par. 5; and for their application
particularly to primary elections, see § 136.
ARTICLE 5.
Examination of Election Papers by Grand Jury.
§ 85. (§ 75.) Grand jury to examine lists.—
The grand juries shall examine said lists, and if
any voter is found thereon who was not entitled to
vote, they shall present said illegal voter. If the
superintendents fail to return, as required, the
lists and the ballots, they must be presented.
See P. C, § 847.
ARTICLE 6.
Election Blanks.
§ 86. (§ 76.) Blanks to be furnished by
Governor and ordinary. — The Governor shall fur-
nish the several ordinaries all blank forms neces-
sary for said elections, which they shall furnish
the justice of the peace, or notaries public who are
ex-officio justices of the peace of their counties,
at least ten day before election day, and on failure
to do so, shall be liable to a fine not exceeding
one hundred dollars. Acts 1895, p. 23.
As to blanks for election of Governor, see § 210, par. 6.
As to jurisdiction of ordinary, see § 4796.
§ 87. Additional blanks to be furnished by the
Governor. — In addition to the blank forms men-
tioned in the preceding section, the Governor shall
furnish to the proper authorities of the several
counties, for all State, presidential, congressional,
and county elections, sufficient blanks, tally-sheets
and blank lists for voters. § 210 (6), Acts 1900,
p. 69.
§ 88. How printed. — The tally-sheets shall have
printed therein proper headings and certificate,
and, as far as practicable, the names of the sev-
eral candidates, and the blank list for voters shall
have printed therein proper headings and certi-
ficates.
ARTICLE 7.
Voters' Freedom from Arrest.
§ 89. (§ 77.) Privileges of an elector.— No
civil officer shall execute any writ or civil process
upon the body of any person qualified to vote at
such elections, while going to, or returning from,
or during his stay there, on the day, under the
penalty of five hundred dollars, to be recovered by
action. A reasonable and full time shall be al-
lowed for the journey to and from the polls.
Electors shall, in all cases except treason, felony,
larceny, or breach of the peace, be privileged from
arrest during their attendance on elections and
in going to and returning from the same.
See P. C. 911.
For constitutional provisions, see § 6405. As to tortious
nature of arrest if made, see § 4453.
ARTICLE 8.
Elections to Fill Vacancies.
§ 90. (§ 78.) Election to fill vacancy for
members of legislature, notice. — Elections to fill
vacancies for members of the General Assembly
take place under the authority of a writ of elec-
tion, issued by the Governor to the ordinary of
the county where the vacancy occurs, who must
order and publish a day for holding the same, by
giving at least twenty days' notice.
See 5 Enc. Dig. 10.
For constitutional authority of the Governor, see § 6482.
§ 91. (§ 79.) Elections to fill vacancies, etc.
— All the provisions of this Chapter apply equally
to elections to fill such vacancies and any other
special elections.
See 5 Enc. Dig. 10.
As to filling vacancy in office of Governor, see § 96. As
to appointments to vacancies by ordinaries, see § 4796,
par. 5.
ARTICLE 9.
Campaign Expenses.
§ 92. Publication of campaign expenses. — All
candidates for Governor, State-House Officers,
Judges of the Appellate and Justices of the
[30]
§ 93
FOR MEMBERS OF CONGRESS
§ 97
Supreme Courts, and for United States Senators,
shall, within twenty days from the date of hold-
ing the election or primary election at which they
shall be candidates, file with the comptroller-
general an itemized statement, under oath, of all
campaign expenses incurred by them, showing
the amount of money expended in such campaign,
the purposes for which it was used, and the source
from whence it was derived, and shall in addition
at the same time publish said sworn statement in
some newspaper of general circulation published
at the capital of this State; likewise all candidates
for Congress or for the State Senate shall, within
twenty days after the holding of the election or
primary election at which they shall be candidates,
file with the clerk of the superior court of each of
the several counties composing said congressional
and senatorial districts, respectively, an itemized
statement under oath of all campaign expenses in-
curred by them, showing the amount of money
expended in such campaign, the purposes for
which it was used, and the source from which it
was derived, and shall in addition at the same time
publish, in some one or more newspapers having
a general circulation in such district or districts,
said sworn statement; likewise all candidates for
judge of the superior courts, and solicitors-general,
and members of the General Assembly, and all
county officers, including county and city judges
and solicitors elected by the people, shall, within
twenty days from the date of holding said elec-
tion or primary election, in the cases of judges
and solicitors-general, file with the clerk of the
superior court of each of the counties of the cir-
cuit a similar statement under oath as that re-
quired of the above-named candidates, and shall
at the same time publish the same in some news-
paper having a general circulation in the circuit;
and in the case of the county officers, including
city judges and solicitors elected by the people,
file with the clerk of the superior court of such
county a similar statement under oath, but said
county officers, including city judges and solici-
tors elected by the people, shall not be required to
publish in any paper said expenses. Acts 1908, p.
63; § 127.
Sec P. C, § 671.
§ 93. When candidate shall not be declared the
nominee. — No person violating the provisions of
the preceding Section shall be declared the nomi-
nee of his party.
CHAPTER 4.
Elections for Governor, Members of Congress,
Electors for President and Vice-President,
Treasurer, Comptroller-General, Attorney-
General, and Commissioner of Agriculture.
ARTICLE 1.
Provisions Applicable to All.
§ 94. (§ 80.) Provisions applicable to all elec-
tions.— The elections for the officers heading this
Chapter are governed by the same rule as elec-
tions for members of the General Assembly, in
the following particulars:
1. In the oaths to be taken by the voters.
2. In the class of persons to hold the election
and the oath to be taken by them.
[3
3. In the places and the time of day to hold
them.
4. In the manner of conducting and returning
them, including all special elections, and in the
duty of the clerks of the superior courts and the
grand juries.
5. In the several penalties attached to the
superintendent or other persons.
6. In the furnishing of blanks by the Governor.
7. In all other respects where applicable, and
there is not a contrary provision by law.
Editor's Note. — Paragraph 4 of this section provides that
the returns for the elections held for the treasurer and
Comptroller-General shall be the same as for the General
Assembly. For the latest law on this subject, see §§ 82,
par. 9, 120 (1), (2) and the notes thereto.
ARTICLE 2.
For Governor.
§ 95. (§ 81.) Governor elected, when. — The
Governor is elected biennially, at the same time
when members of the General Assembly are
regularly elected, and a vacancy in the office is
to be filled as required by the Constitution and
the regulations of this Code elsewhere in con-
formity thereto.
For constitutional provisions, see §§ 6472-6475. As to
when elected, see § 80 and note thereto.
§ 96. (§ 82.) Vacancy, how filled.— When -
ever a vacancy shall occur in the office of Gov-
ernor by death, resignation, or otherwise, the
President of the Senate, or Speaker of the House
of Representatives, as the case may be, exercising
the executive powers of the government, as pro-
vided by the eighth paragraph of the first section
of the Fifth Article of the Constitution of this
State, shall issue his proclamation, immediately
upon his assumption of the duties of the Execu-
tive, ordering a special election for Governor, to
fill the vacancy so occasioned, for the unexpired
term, to take place at a time not less than thirty
nor more than sixty days from the date of such
proclamation; and shall convoke the General As-
sembly in extra session to receive the returns and
declare the result of such special election, or to
elect a Governor in case no person shall receive
a majority of the whole number of votes cast at
such special election, as provided in the Constitu-
tion of this State. Said extra session of the
General Assembly to convene within fifteen days
from the date of such special election: Provided,
nevertheless, that if such vacancy occurs within
six months next preceding the time prescribed by
law for the regular election for Governor, there
shall be no special election, but the President of
the Senate, or Speaker of the House of Repre-
sentatives, as the case may be, shall exercise the
executive powers of the government until such
vacancy is filled by a regular election. Acts 1872,
p. 31; 1878-9, p. 173.
For constitutional provisions, see §§ 6477, 6478. As to
law governing election to fill vacancy, see §§ 91, 94.
ARTICLE 3.
For Members of Congress, House and Senate.
§ 97. (§ 83.) Time of electing congressmen.
— Members of the House of Representatives of
the United States Congress shall be elected on
1]
§ 98
FOR PRESIDENTIAL ELECTORS
§ 105
Tuesday after the first Monday in November of
the 3^ear 1872, and on the same day in every sec-
ond year thereafter. Acts 1872, p. 29.
For constitutional provisions, see § 6633.
§ 98. (§ 84.) Governor must order an election,
when. — If an extra session of Congress should
be called after expiration of the Congressional
term and before the next regular time for holding
such elections, the Governor must issue his proc-
lamation ordering an election of such representa-
tives for such extra session.
For constitutional provisions, see § 6482.
§ 99. (§ 85.) Candidates must reside one year
in district, to be eligible. — Besides the qualifica-
tions required by the Constitution, a residence of
one year next preceding the day of election, in
the district where the candidate offers, is neces-
sary to make him eligible to election.
For the constitutional qualifications, see § 6622 (Const.
U. vS. Art. I, § 2, cl. 2).
§ 100. (§ 86.) Governor to count up votes,
etc. — Within twenty days after the election the
Governor shall count up the votes, and im-
mediately thereafter issue his proclamation,
declaring the person having the highest number
of votes, and otherwise qualified, to be duly elected
to represent this State in the House of Repre-
sentatives of the United States, and for what
period.
§ 101. (§ 87.) In case of a tie, new election
ordered. — If two or more persons, equally quali-
fied, should have the same number of votes,- the
Governor shall issue his proclamation, ordering
a new election, in not less than thirty days.
§ 102. (§ 88.) Members elect to apply for
commission in thirty days; vacancies. — If any
person duly elected as aforesaid shall not, within
thirty days after the Governor's proclamation, ap-
ply for his commission, the Governor shall order
a new election, as prescribed in the preceding sec-
tion, and vacancies for any cause are filled in
like manner.
As to nature and effect of commission, see § 144. As to
ineligibility for re-election of person failing to take com-
mission, see § 260.
§ 102(1). Time of electing senators. Voters.
— There shall be an election for a Senator to
represent the State of Georgia in the Senate of
the United States, which shall be held on the
Tuesday next after the first Monday in Novem-
ber next preceding the expiration of the time for
any Senator who has been elected to represent the
State in Congress, and said election shall be held
by the duly qualified voters in the State entitled
to vote for members of the House of Representa-
tives of the State Legislature. Acts 1913, p. 135.
§ 102(2). Election, how held.— The said elec-
tion shall be held at the same places and in the
same manner as are now prescribed by law for
the election of Governor, excepting the vote shall
be canvassed by the Governor, the Secretary of
State and the Comptroller General, who shall de-
clare the result of the election. The Governor
shall issue an appropriate commission to the per-
son declared by the majority of the said Board of
Canvassers to have been elected. Acts 1913, p.
135.
§ 102(3). Vacancy, how filled. — In every case
where a vacancy shall occur by death, resigna-
tion or otherwise, the Governor of the State shall
make temporary appointment of a Senator to
serve until the people fill the vacancy by election
as herein prescribed. And the Governor, in the
event of a vacancy, shall by proclamation order
a special election to be held to fill such vacancy
upon the date of the next regular election to be
held in the State of Georgia for the Federal House
of Representatives. Acts 1913, p. 135.
§ 102(4). Votes necessary to elect. — In every
case the person receiving the largest number of
votes cast at said election for any one person shall
be declared the duly elected Senator of the United
States for the term aforesaid. Acts 1913, p. 135.
ARTICLE 4.
For Presidential Electors.
§ 103. (§ 89.) Presidential electors, when
chosen. — On Tuesday after the first Monday
in November, 1868, and every fourth year there-
after, until altered by act of Congress, there
shall be an election for electors of president and
Vice-President of the United States.
See § 6695 (U. S. Const. Amend. XII).
This is a general election within the meaning of Art.
XIII, § 1, par. 1 (§ 6610) of the Constitution. Moore v.
Smith, 140 Ga. 854, 79 S. F- 1116.
§ 104. (§ 90.) Meeting of electors. — On the
twentieth day after said election shall have taken
place, it is the duty of the Governor to con-
solidate the several returns, and, immediately no-
tify those persons of their election who have
received a vote amounting to a majority, and
to require their attendance at the capitol on the
second Monday in January next following their
appointment, to meet at 12 M., and give their
votes for President and Vice-President of the
United States, and all acts and proceedings of
said electors and other officers of this State, re-
lating to the electoral votes thereof, shall con-
form to the Acts of Congress approved Febru-
ary 3d, 1887, and October 19th, 1888. United
States Revised Statutes, § 135. Acts 1880-1, p.
67, 1888, p. 33,
For provisions of the federal constitution, see § 6695. As
to the standard in computation of time, see note to § 80.
§ 105. (§ 91.) Proceedings on failure to elect,
or in case of vacancy.—In the event all or a
majority of said electors may not have received
a majority, the Governor shall communicate the
fact to the General Assembly, if in session, and
if not, he shall issue his proclamation conven-
ing them in time to secure the vote of the State
in the electoral college. The General Assembly
shall, 'by joint ballot, elect as many electors as
have not received said majority. If a majority
of electors have been chosen by the people, they
may fill the remaining vacancies themselves by
ballot, which election shall be communicated to
the Governor. If when the electors elected 'b>
the people, or by the General Assembly, or some
by each, convene at the capitol, any of their
number may not be present at the time specified
for counting the vote, a majority of the elected
may fill all vacancies, which shall be duly com-
municated to the Governor.
[32]
§ 106
FOR JUSTICES OF THE PEACE AND CONSTABLES
§ 116
§ 106. (§ 92.) On failure of majority of
electors to attend, etc. — If a majority fail to at-
tend by said Wednesday at noon, from providen-
tial cause, those who do attend may adjourn from
day to day for ten days, and if a majority is
not present at the expiration of that time, the
Governor shall convene the General Assembly on
ten days' notice, who shall fill the vacancies by
election.
§ 107. (§ 93.) Electors shall choose a presid-
ing officer, etc. — The electors, when assembled to
cast the vote, shall choose a president of their
body from their number, and a secretary not of
their number; said secretary shall make a rec-
ord of their proceedings in a book from the Ex-
ecutive Department kept for that purpose.
§ 108. (§ 94.) Electors to choose a messenger.
— Such electors shall elect, 'by a majority vote,
a messenger to convey the vote of Georgia, and
shall, in regard to that and all other matters,
proceed according to the Acts of Congress in
such cases made and provided.
§ 109. (§ 95.) Pay of electors. — The pay of
electors shall be fifty dollars each for the whole
time they are required to remain at the capital
on their mission, and ten cents for each mile
traveled by the nearest practicable route in go-
ing to and returning from the capital; the pay of
the secretary shall be eight dollars per day for
every day required in attending the electorar
college as secretary thereof; all of which is to
be either paid out of the contingent fund or out of
any money in the treasury not otherwise ap-
propriated, in the discretion of the Governor.
Acts 1882-3, p. 54.
§
CHAPTER 5.
For Ordinary and County Officers.
110. (§ 96.) General provision. — Section
04 applies to the officers whose elections are
provided for in this chapter.
For constitutional provisions, see § 6599.
§ 111. (§ 97.) County officers, when elected.—
All county officers shall be elected on Tuesday
after the first Monday in November of the years
in which, under the Constitution and laws of
this State, elections should be held to fill such
offices, beginning on Tuesday after the first
Monday in November, 1914, for • terms begin-
ning in January thereafter. Acts 1894, p. 40,
1914, p. 47.
This section originated in the Act of August 20, 1872
(Acts 1872, p. 29). In Crisp ex rel. Williams v. Brown, 49
Ga. 191, the date selected in this act by the General As-
sembly for county elections was upheld. This remained the
law until 1894, when by the Act of 1894, p. 40, the date for
the election was changed from the first Wednesday in Jan-
uary to the first Wednesday in October. The latter date
was changed by the Acts of 1914, p. 47, to that now shown. —
Ed. Note.
§ 112. (§ 98.) Official term of county offi-
cers.— The terms of sheriffs, clerks of the su-
perior courts, tax-collectors, tax-receivers, county
treasurers, county surveyors, and coroners, be-
gan on the first day of January, 1873, and ex-
pired on the first day of January, 1875. And all
succeeding terms of said officers shall begin on
the first day of January and expire on the first
Ga. Code— 2
day of January two years next thereafter. Pro-
vided, that where the tax-collector of any county
is succeeded by another, the outgoing collector
shall make final settlement with the State and
county for the taxes levied and chargeable for the
year for which he was elected and for the collec-
tion of which he has given bond; the incoming col-
lector being charged and responsible only with
the collection of the taxes due for the years for
which he is chosen and bonded. Acts 1872, p. 82,
1898, p. 41.
For constitutional provisions, see § 6599.
In Fidelity, etc., Co. v. State, 23 Ga. App. 132, 97 S. E-
665, the history of this section is set out and earlier cases
on the subject are reviewed. This case was certified to
the Supreme Court and the report thereof is to be found
in 148 Ga. 545, 97 S. E. 536. It was held that the provi-
sions of this section do not apply to a tax collector who
succeeds himself, and that the failure to pay over taxes
collected by a tax collector, and not the date of the col-
lection, constitutes the breach of his official bond. More-
over, Art. II, § 2 of the Constitution (§ 6599), upon which
this section depends for its authority, was amended in 1914
(Acts 1914, p. 43) to take effect January 1, 1917, changing
the term of county officers from two to four years. In
Rhodes v. Jernigan, 155 Ga. 523, 528, 117 S. E. 432, it was
pointed out that the officers named in the present section
were included in the amendment. — Ed. Note.
§ 113. (§ 99.) Other county elections.— The
election of any officer not mentioned, whose
duties are entirely of a county nature, shall be
held at the same time, unless otherwise provided
for.
This section does not apply to the election of commis-
sioners of roads and revenues of a given county unless
made applicable by special law with reference to that
countv. Rhodes v. Ternigan, 155 Ga. 523, 528, 117 S. E-
432.
§ 114. (§ 100.) Who to give notice of elec-
tions.— When either of the officers mentioned
are to be elected, the ordinary shall give thirty
days notice of the officers to be elected, and the
time of the election, which shall be advertised
at the door of the court-house, and also in some
gazette printed in the county, if any.
As to authority and duties of ordinaries in respect to
vacancies in county officers, see § 4796, par. 5.
CHAPTER 6.
For Justices of the Peace and Constables.
§ 115. (§ 101.) Time and place of election of
justices of the peace. — Justices of the peace shall
be elected on the first Saturday in December,
1900, and every fourth year thereafter, by the
voters of their respective districts: Provided,
they have resided in the district as much as thirty
days immediately preceding the election, and are
otherwise qualified. The election must be held at
the place of holding justices' courts for the dis-
trict; if none, then at the election precinct; if no
election precinct, then at some place in the dis-
trict named by the ordinary, of which ten days
written notice must be given in the district. Acts
1869, p. 22; §§ 4658-4662, Acts 1898, p. 42.
For constitutional provisions, see § 6525. As to manner
of filling vacancy in this office, see §§ 4658-4662.
Construing together the sections of the Code of 1895 cor-
responding to § 115, 116, and 119 of this Code, it was held
in Rose v. State, 107 Ga. 697, 703, 33 S. E. 439, that the
election of justices of the peace and constables is a gen-
eral state election.
§ 116. (§ 102.) Who shall superintend elec-
tions.— Such elections shall be superintended by
33 ]
§ 117
VOTING BY ABSENTEES
§ 120(4)
three freeholders of the district, who shall be ap-
pointed by the ordinary of the county and upon
the failure of one or more of the freeholders ap-
pointed by the ordinary to act, the place or places
shall be filled by any other freeholder or free-
holders of the district, who shall take the oath
required in section 77. Acts 1990, p. 39.
See note to § 115.
As to other instances in which three freeholders may man-
age election, see § 81.
§ 117. (§ 103.) Returns, to whom made.—
Said superintendents shall transmit one return
of said elections to the Governor and another to
the clerk of the superior court of the county, who
shall keep the same on file. The ballots shall be
likewise sealed up, and the number of the district
marked thereon, and delivered to such clerk.
As to filling vacancies, see §§ 4659, 4660.
§ 118. (•§ 104.) Elections, how governed. —
The laws governing the elections for members of
the General Assembly govern in the elections of
justices of the peace, whenever they may be ap-
plied, and are not inconsistent with those of this
Chapter.
For general provisions applicable, see §§ 76, 94.
§ 119. (§ 105.) Time of constables' elections. —
Constables shall be elected at the same place and
by the same class of voters that justices of the
peace are elected, which elections for constables
shall be held on the first Saturday in December,
1900, and on the first Saturday of December every
two years thereafter. Acts 1898, p. 43.
See note to § 115.
As to jurisdiction of ordinary, see § 4796. As to gen-
eral provision applicable, see §§ 76, 94.
§ 120. (§ 106.) Who to preside at constables',
elections. — Their elections are to 'be conducted in
the same manner as those of justices of the
peace, with the exception that the returns must
be made to the ordinary of the county. Acts
1893, p. 30.
CHAPTER 6A.
Election Returns for Secretary of State,
Treasurer and Comptroller-General,
Officers Commissioned by
Governor.
§ 120(1). Returns to general assembly. —
The returns for every election for Secretary of
State, Treasurer, and Comptroller-General shall
be sealed up by the managers separately from the
other returns and directed to the President of the
Senate and Speaker of the House of Representa-
tives, in the same manner and at the same time
that the returns for the election of Governor are
made, and shall be transmitted to the Secretary
of State, who shall, without opening the same,
cause the same to be laid before the Senate on
the day after the two Houses shall be organized,
and at the same time the returns for the election
of Governor are laid before the Senate, and they
shall be transmitted by the Senate to the House
of Representatives. Acts 1918, p. 154.
Editor's Note. — The Act of 1918 from which this section
was codified contained two other sections which do not
appear in this Code. The second section of the 1918 Act
was expressly superseded by the Act of 1921, which is here
codified as § 120 (2). The third section of the Act of 1918,
provided that: "The terms of the officers last mentioned
shall commence on the first day of January next after they
are elected." This part of the act was held unconstitutional
because it referred to matter different from that contained
in the title of the act. See McGreger v. Clark, 155 Ga.
377, 116 S. E. 823; Bennett v. Public Service Commission,
160 Ga. 189. In the latter case it was held that this being
so the term of office of a commissioner elected in Novem-
ber 1924 is fixed by § 2616 of the Code and begins on De-
cember 1, 1926.
This section as relating to the election returns of the
secretary of State supersedes the provisions of § 205 re-
garding same as explained in the editor's note under § 205.
It supersedes the provisions of § 94, par. 4, relating to
the returns of the election held for Treasurer and Comp-
troller-General in the manner explained in the editor's note
under § 94. [See the editor's note to § 120 (2).]
§ 120(2). Returns to secretary of state. — The
returns of the election of every civil officer, who
is to be commissioned by the Governor shall be
sealed up in a separate passage and transmitted
to the Secretary of State, whose duty it shall 'be
to open the returns, consolidate the vote and de-
clare the result and certify to the Governor the
names of persons elected, and the Governor shall
issue commissions to such officers as shall appear
from the certificate of the Secretary of State to
have been elected. Acts 1921, p. 232.
Editor's Note. — This section is substituted for a similar
section of the Act of 1918 as explained in the editor's note
to § 120 (1). There might be some question as to whether
the legislature so intended but it would seem from a deci-
sion of the Supreme Court that it took this version of the
effect of the amendment.
The act from which this section is taken uses in the cap-
tion these words: "That § 2 of the above-recited act be
amended by striking from [?] said § 2." Regarding the
questionable character of this language the court said in
McGregor v. Clark, 155 Ga. 385, 116 S. E. 826. "For the
purpose of this discussion we resolve all doubt on this ques-
tion in favor of the construction of the plaintiff in error,
and treat the act as striking the entire § 2 of the Act of
1918, and substituting in lieu thereof the language of the
new act." For this reason the substitution is here made.
Now the Act of 1918 as shown by the caption had refer-
ence only to the election of State-House Officers. And, as
pointed out in the case cited above on page 384, the Act
of 1921 did not undertake to amend the caption of the Act
of 1918. Therefore this section, even though it attempts
to effect the return of "every civil officer" is limited to
those civil officers who are State-House Officers. It would
seem that the holding in McGregor v. Clark, 155 Ga. 384,
116 S. E- 823, is based upon this reasoning, for the court
reached the conclusion that even though the Commissioner
of Pensions is a civil officer, he is not a State-House Offi-
cer and therefore the return of his election is not controlled
by this section.
The Secretary of State, the Treasurer, the Comptroller-
General, and the Attorney-General are "State-House Offi-
cers." McGregor v. Clark, 155 Ga. 377, 116 S. E- 823.
Sections 1468 et seq. P. C. Not Repealed. — This section
neither as it was originally approved, nor in connection
with the amendatory act of 1921 (see editor's note above),
operated to repeal or modify by implication or otherwise
the Act of 1908 (§§ 1658 P. C. et seq.) with reference to
the term of office of the Commissioner of Pensions and
when the term begins. McGregor v. Clark, 155 Ga. 377, 116
S. E. 823.
§ 120(3). Copies of law to ordinaries. —
It shall be the duty of the Secretary of State to
have copies of this bill made immediately after its'
approval, and. to mail the same to the several Or-
dinaries of this State, and to call their special at-
tention to the requirements of this Act. Acts
1918, p. 154.
CHAPTER 6B.
Voting by Absentees.
§ 120(4). Regular business necessitating ab-
sence. Time of notice to registrars. — Any voter,
only when required by his regular business and
habitual duties to be absent from the city or
[34]
§ 120(5)
VOTING BY ABSENTEES
§ 120(11)
county, ward or district in which he is registered,
may vote, provided: He shall give notice in writ-
ing of such intenton, to the Registrars of his
county, not less than thirty days nor more than
sixty days prior to the primary or general elec-
tion in which he desires to participate. Acts 1924,
p. 186.
As to qualification of voters, see §§ 34, 35, 6395-6403.
As to penalty for aiding or abetting fraud in connection
with vote cast under this act, see § 676 (10) P. C. As to
penalty for violation by public official, see § 676 (10) P. C.
§ 120(5). Application for ballot. — Letter of
application for ballot shall be forwarded by regis-
tered mail, and shall enclose postage, or the cor-
rect amount in legal tender, necessary for the
return of blank ballot and full instructions for
proper return. Acts 1924, p. 186.
§ 120(6). Opening envelope with ballot; secret
marking; how witnessed and returned. — Upon re-
ceipt of the registered letter, forwarded by the
registrars, as is hereinafter provided, the appli-
cant shall not open the sealed envelope marked
"ballot within" except it be in the presence of
the postmaster or his assistant, and shall then
and there mark and refold the ballot without as-
sistance and without making known the manner
of marking the same. He shall then and there
place the ballot within the envelope in the pres-
ence of the postmaster or his assistant, who shall
witness the same in writing, as hereinafter pro-
vided, or in case of their refusal to witness the
same it may be witnessed by any person quali-
fied under the laws of this State to take acknowl-
edgments of deeds. The envelope with the cou-
pon hereinafter provided, shall be enclosed with-
in the envelope directed to the registrars, and the
registration of same shall be the same date as
the coupon enclosed. Acts 1924, pp. 186, 187.
§ 120(7). Signing in presence of consul, or
officers of army or navy. — An elector receiving
his ballot under the provision of Section 120(4)
shall conform to all the requirements of Section
120(6), except that he shall sign and seal ballot
in the presence of the American consul or his as-
sistant, if the letter was directed to the consulate
as provided in Section 120(3), preserving all the se-
crecy of the ballot, as provided in Section 120(6)
and it shall be forwarded by the consulate with-
in two days after receipt of same. In the army
and navy the commanding officer or a commis-
sioned officer duly delegated by him shall witness
and register the return envelope by first mail leav-
ing said command or ship, provided all the re-
quirements of Section 120(5) have been complied
with. Acts 1924, pp. 186, 187.
§ 120(8). Registrar's duty on receiving appli-
cation.— The registrar, upon receipt of the appli-
cation for ballot, shall satisfy himself that the ap-
plicant is duly qualified to vote in the county for
which said application is made, and shall enroll
the name and address of the applicant, if found
eligible, in a took to be provided for the purpose,
and make out the certificate and coupon at-
tached, hereinafter provided, and forward same to
the applicant by registered mail, general delivery
(cost of same having been forwarded as herein-
before provided), and also shall enclose in said
letter:
a. An envelope containing the folded ballot,
sealed and marked "ballot within."
b. An envelope, for re-sealing the marked bal-
lot, form of which is hereinafter provided, and
therein called "voucher."
c. A properly addressed envelope for the re-
turn of said ballot.
d. A printed slip, giving full instructions re-
garding the manner of marking of the ballot, in
order that the same may be counted, how pre-
pared and how returned, which printed slip shall
be provided by the ordinary or executive com-
mittee. Acts 1924, pp. 186, 187.
§ 120(9). Certificate of registration. — The cer-
tificate of registration shall be printed, worded as
follows:
This is to certify that is a
(ward)
qualified voter of the (district) of
(city) County, State of Georgia,
and entitled to vote in the election to be held on
19
Application for ballot received -
19 .... , from ' (post office) and
mailed to (post office) as re-
quested on 19
A copy of this certificate is filed with the letter
of application.
No (Signed)
Registrar.
(Detach the coupon below and return.) Acts
1924, pp. 186, 188.
§ 120(10). Opening envelope from registrar,
etc. Secrecy. — The applicant shall not open the
sealed envelope marked "ballot within" except in
the presence of the postmaster or his assistant, who
is to register the same in return. The voter shall
mark and refold the ballot without assistance and
shall not disclose the manner in which it has been
marked, shall seal and sign the voucher, the post-
master or assistant, signing as witnesses to said
voucher. Acts 1924, pp. 186, 188.
§ 120(11). Postmaster's blanks, how filled.
Signing in army or navy, or out of U. S. — The
postmaster, or assistant, shall fill out the follow-
ing blank, detach the coupon from the certificate,
and place it within the return envelope containing
the sealed 'ballot:
Name Color
Height Age Color of hair
Color of eyes weight (estimated)
Birthplace given by voter
Occupation State and county
where voter claimed to have last voted
county State.
To the best of my knowledge, the above in-
formation is correct and the applicant has com-
plied with the requirements of the law as above
provided. I have no knowledge whatever of the
marking, erasures or intent of the ballot enclosed.
(Signed)
(Post-office stamp.) Postmaster.
(or other person designated in Section four of
this Act [§ 120(6) of this code].)
In the army and navy a commissioned officer,
[35]
120(12)
CONTESTED ELECTIONS
§ 121
commanding officer, or commissioned representa-
tive, shall sign the foregoing in lieu of postmaster.
In territory without the jurisdiction of the United
States the consular officer shall sign the certificate.
Acts 1924, pp. 186, 188.
§ 120(12). Voucher signed by applicant re-
ceiving ballot. — The voucher shall be on the back
of the return envelope containing the marked bal-
lot, and shall be as follows:
This is to certify that the enclosed ballot was
received by me as per my application to the Reg-
istrars of County, State of
Georgia. The envelope marked "ballot within"
was opened by me in the presence of
postmaster, consul or commissioned officer, of
marked while in the office,
without assistance or knowledge on the part of
any one as to manner in which same was pre-
pared, and then and there sealed as provided by
law.
(Signed)
Teste:
Date 19
Postmaster (or other person designated in Sec-
tion 4 of this Act [§ 120f].) Acts 1924, pp. 186,
189
§ 120(13). Ordinary to furnish blank ballots
to registrars. Unused ballots. — It shall be the
duty of the Ordinary of each county, at the ex-
pense of said county, to furnish the Registrars of
said county with a sufficient number of blank bal-
lots each properly sealed in an envelope marked
""ballot within," and take their receipt for same.
Within five days subsequent to the election the
registrars shall return to the Ordinary all unused
ballots in their original sealed envelopes and a list
•of the voters who have been furnished ballots as
provided in this Act. Acts 1924, pp. 186, 189.
§ 120(14). Ballots for primary elections. — In
all primary elections, it shall be the duty of the
county or city executive committee, or other party
authority of the political party holding the pri-
mary election, to provide official ballots for all
such elections; with the names of the candidates
who have properly qualified, in accordance with
the rules of such party, printed thereon. Acts
1924, pp. 186, 189.
§ 120(15). Form of ballots and stubs. — All
ballots furnished by the ordinary to the Regis-
trars under the provisions of this Act shall
be printed and prepared in pads with a series
number different from that used in the elec-
tion for voters who vote in person, and with
the following words written thereon at top
of said pad or pads: "Absent Voter's Ballot," and
each ballot shall be arranged so as to show the
same series of letter, and each ballot numbered
consecutively, and with a stub for each ballot con-
taining the series letter and number of ballot,
which can be detached from the ballot,
conforming thereto, and the ballot shall show the
same series letter and number as appears on the
stub. Acts 1924, pp. 186, 189.
§ 120(16). Deposit of returned ballot; entry by
registrar, etc. — Upon the receipt of the return
'ballot from the voter, the Registrars shall, oppo-
site the name of the voter in the book heretofore
mentioned, writ in ink the words:
"Deposited in sealed box by me on
19 ," and then add his own signature, and
shall deposit the envelope containing the ballot,
unopened, in the sealed box to be provided for
this purpose, and there it shall remain until the
day of the election. The coupons enclosed with
the return ballots shall be filed with the letter of
application. The return envelope shall show the
series letter and number of the ballot deposited
therein. Acts 1924, pp. 186, 190.
§ 120(17). Delivery of box with ballots etc.,
to election managers.— On the day of the elec-
tion the Registrars shall deliver the box contain-
ing the sealed ballots, together with the letters of
application and return coupons attached, with a
list of the same in triplicate, sealed, to the mana-
gers of the election, at the ward or district in
which the ballots are to be cast, and shall take
receipt for said box and sealed papers. The
registrars shall also deliver to the managers the
pad or pads with stubs showing series letter and
numbers of 'ballots furnished, and no ballot
shall be counted unless the series letter and num-
ber on the stub shall correspond with the series
letter and number on the ballot contained in the
envelope returned by the absent voter. Acts
1924, pp. 186, 190.
§ 120(18). Ballots deposited in regular ballot
box. — At the close of the regular balloting the
box is to be opened 'by the managers of the elec-
tion, and the ballots deposited in regular ballot
box, as follows: As each envelope is removed
from the box, the name of the voter is called
and checked as if the voter were voting in person.
If found entitled to cast his vote, the envelope is
then, but not until then, opened, and the ballot
deposited in the regular box without examining
or unfolding it. Acts 1924, pp. 186, 191.
§ 120(19). Return of envelopes, etc., to origi-
nal box; sealing. — When all the ballots have been
accounted for and either voted or rejected, the
empty envelopes that previously contained the
sealed ballots are to be returned to the original
box together with the sealed package of letters
of applications and coupons and the rejected en-
velopes, if any, on which, or attached, shall be
plainly written the cause of rejection, signed by
a majority of the managers of election. The box
shall thereupon be re-sealed and not opened
within ninety days except by order of court.
Acts 1924, pp. 186, 191.
§ 120(20). Liberal construction. — The elec-
tion laws of Georgia shall be liberally construed
with respect to this Act, so tha4t full force and
effect may be given its provisions. Acts 1924,
pp. 1,86, 192.
CHAPTER 7.
Contested Elections.
ARTICLE 1.
In Cases Where Governor Commissions.
§ 121. (§ 107.) Proceedings in contested
election. — In all cases when the election of a
[ 36
§ 121
CONTESTED ELECTIONS
§ 121
person by the people to any office requiring a
commission from the Governor is contested, the
following shall be the proceedings in all contests
arising therefrom.
1. Notice to Governor to withhold commission.
The contestant or his attorney shall give written
notice to the Governor of an intention to con-
test, and upon receipt of such notice the Governor
shall withhold the issuing of a commission un-
til the contest is decided, or until the time herein-
after prescribed shall have elapsed without the
filing of such contest. In all cases the Governor
shall withhold the issuing of commissions to
persons elected, five days after said election shall
have been held.
2. Notice to adverse party. Such contest
shall be begun by giving the adverse party five
days' notice in writing stating the grounds of
contest, the time and place where the contestant
intends to take testimony, and the judicial officei
before whom the testimony will be taken: Pro-
vided, for providential cause or other sufficient
reason, any other judicial officer than that named
in the notice, qualified to act, may preside at the
taking of such testimony, the cause of such
change being made to appear by the affidavit of
the contestant and to be made a part of the rec-
ord in said case. Said notice may be served by
the sheriff, his deputy, or any constable of the
county where the contest is pending, who shall be
paid by the party cast in the contest two dollars
for service of notice of contest and fifty cents
for each subpoena served.
See note at end of section.
3. Testimony, how and before whom taken.
Any judicial officer of the county, where the
testimony is taken, may preside, to preserve or-
der, to swear witnesses, to see that the testi-
mony is fairly and impartially taken and reduced
to writing. Said officer shall have power to
subpoena witnesses and compel their attendance,
if in this State, and to issue commissions to
take testimony of persons out of this State,
and to adjourn from day to day: Provided, all
testimony submitted on the part of the contest-
ant shall be taken within thirty days from the
day of the election contested. The contestee
shall be allowed ten days after the closing of the
contestant's testimony, to submit and take testi-
mony in rebuttal or on cross-grounds of contest.
The judicial officer presiding shall be allowed
two dollars per day for his services, and the
clerk who takes down the testimony two dollars
per day for his services, which with the cost of
notice and subpoenas herein provided for, may
be enforced by execution issued by the judicial
officer presiding in said contest against the
party cast in the contest.
See note at end of section.
4. Examination of witnesses. Either party
may appear by himsei't or attorney, or both, and
cross-examine the witnesses and have noted, and
certified all legal exceptions to the admissibility
of testimony submitted by the opposite party,
which exceptions shall be passed upon by the
court finally determining said contest.
5. Countercharge by contestee and notice there-
of. The contestee may file cross-grounds of
[3
contest, in which case he shall give like notice
to the contestant as is required to be given to
the contestee, and the testimony on such cross-
grounds of contest shall be taken after the
close of contestant's testimony, and. within ten
days thereafter, in the same manner as is here-
in prescribed for the taking of testimony for
the contestant, and certified by the presiding of-
ficer as such.
6. No contest after commission has been is-
sued. No proceedings can be begun to contest
an election after the Governor has issued the
commission in such case.
See note at end of section.
7. Transmission of papers, hearing and de-
cision. All papers and proceedings or copies of
them duly certified by the presiding officer or
agreed to by the parties in writing, must be
transmitted within five days after the closing of
the testimony to the judge of the superior court
of the circuit wherein the contest may arise, who
shall hear and determine the same, either in
term time or in cham'bers, after giving reasonable
notice to the parties concerned or their counsel
of the time and place of hearing, and in the
event the judge of the superior court of said cir-
cuit is disqualified from hearing the contest, or
for any legal cause refuses to hear it, he shall
certify this fact and transmit the papers and
proceedings to a judge of the superior court of
an adjoining circuit, qualified to hear said con-
test, who shall hear and determine it.
See note at end of section.
8. Copy of notice. Commission, where to is-
sue. The contestant shall send to the Governor
a copy of the notice, in writing, required by sub-
section 2 of this Section to be served on the con-
testee, stating the grounds of contest and the
time and place of taking testimony, and the
name of the officer before whom testimony is to
be taken: if no such copy is sent to the Governor
within twenty days after the holding of the elec-
tion, he shall proceed to issue commission as
though nc notice of contest had been received.
Should the copy of notice above specified be re-
ceived within the twenty days, but nothing
more, and the time for taking testimony have
passed, the party whose election was proposed to
be contested may procure, from the officer named
in the notice as the one before whom the testi-
mony was to be taken, a certificate showing that
the contestant has taken no steps to prosecute
his claim, and that the delay is not d.ue to any
fault on the part of said officer nor to the selec-
tion of any other officer to preside, nor to con-
tinuances granted by said officer to either party,
to be signed by said officer before the clerk of
superior court or ordinary of the county, who
shall certify that the signature is genuine and
the officer signing the same is known to him to
be the identical officer who was selected to take
testimony in the case, and upon the receipt of
such certificate the Governor shall proceed to is-
sue the commission just as though no notice
of contest had ever been sent to him. Acts 1893, p.
124; Acts 1898, p. 45; Acts 1898, p. 44.
See 5 Enc. Dig. 14-16.
As to what officer applicable, see § 144. As to what con-
tests applicable, see § 125. As to contest over election for
7]
% 121
OTHER CONTESTED ELECTIONS
§ 125
removal of county site, see §§ 490 et seq. As to contesting
an office by quo warranto, see §§ 5451 et seq.
Constitutionality.— The Act of December 20, 1893 (Acts
1893, p. 124) creating subsections 1-7 of this section does
not violate the constitutional requirement that the legis-
lative, judicial, and executive functions of government shall
forever remain separate and distinct. Johnson v. Jackson,
99 Ga. 389, 27 S. E. 734.
A similar decision was made in Freeman v. McDonald,
72 Ga. 812, construing the Act of September 21, 1883, the
predecessor of the Act of 1893.
Exclusiveness of Remedy. — The sections of this chapter
provide an adequate remedy at law for a contestant and
no resort lies to a court of equity. Tupper v. Dart, 104
Ga. 179, 183, 30 S. E. 624. See note to § 125.
Paragraph 2.— Procedure by petition addressed to an ordi-
nary (as provided in § 25), with prayer that notice of the
contest be served instanter upon the adverse party, that the
latter show cause at the office of the ordinary on a named
day, if any he could, why the prayers of the petition should
not be granted, and why the votes cast by certain
named parties should not be excluded from the ballot-
box, a recount be had, and the lawful result of the elec-
tion declared, was not in accordance with the above rules
and regulations, and was not such a contest of the elec-
tion as is provided and required by the rules and regula-
tions of this section. Norwood v. Peeples, 158 Ga. 162,
122 S. E. 618.
Paragraph 3. — See 5 Enc. Dig. 15, 16.
Same — Burden of Proof.— The burden of showing elec-
tion returns inaccurate is upon the intervener. Brown v.
Atlanta, 152 Ga. 283, 109 S. E. 666.
Same — Discretion of Superior Court as to Costs. — Where
the presiding judicial officer hearing a contested election
case under this section issued a fi. fa. for costs and the
evidence of the defendant's liability was conflicting, the
judge of the superior court did not abuse his discretion
in issuing upon petition a restraining order against exe-
cution of the fi. fa. until a hearing could be held on the
issues raised by the pleadings. McL,eod v. Reid, 120 Ga.
785, 48 S. E- 315.
Paragraph 6. — See 5 Enc. Dig. 15.
By this section is meant a legal commission oidy, and
not one which has issued prematurely. Hardin v. Col-
quitt, 63 Ga. 589, 597.
Paragraph 7. — As to procedure when judge is absent, see
§ 4851. As to procedure when judge is disqualified, see §
4855.
Same — Judges Function Not Judicial. — See Carter v.
Jones, 96 Ga. 280, 23 S. E. 201.
Same — Decision of Superior Court Judge Final. — Where
the election of a county officer was contested under this
and the succeeding sections of this article, and the evi-
dence which was taken before a justice of the peace of the
county, together with all the papers filed in the contest,
was duly transmitted to the judge of the superior court of
the circuit in which the contest arose, the decision by the
latter therein is final, and the writ of certiorari will not
lie to review the same. Robertson v. Easley, 20 Ga. App.
258, 92 S. E. 1027.
Same — Ordinary's Decision Final — Municipal Election. —
Similarly, where an ordinary (acting under authority of
§ 25) renders a decision in a contest over a municipal elec-
tion, he does not act in a judicial capacity, and the writ of
certiorari to the superior court to review the same does
not lie. Harris v. Glenn, 141 Ga. 687, 81 S. E- 1103, and
cases cited.
Same — Same — Special County E'ection. — Even before the
Act of 1893, which created this section, it was held in Skrine
v. Jackson, 73 Ga. 377, 382, that the decision of the ordinary
in a contested "fence or no fence" election is final.
§ 122. (§ 108.) When suspected ballots may
be examined. — When an election is contested on
the ground of illegal votes, any of which it is
claimed, on affidavit, can probably be proven by
resort to the ballots, specifying what ballots, it
is the duty of the clerk of the superior court to
deliver the same, together with the list of voters,
to the person who presides at the taking of testi-
mon}', who shall examine said suspected ballots,
and none other, and have put down, as part of
the testimony, their contents and all other testi-
mony attacking and defending their legality.
If any clerk of the superior court, who by law is
entrusted with the ballots of any election, shall
fail or refuse to deliver up such ballots where the
same are demanded of him in accordance with
the laws of this State, where such ballots are re-
quired as evidence in any contested-election case,
such clerk of the superior court, so failing or
refusing, shall be guilty of a misdemeanor. Acts
1851-2, p. 84, 1880-1, p. 95.
As to when ballots are not to be examined, see § 82, par.
12. As to examination of ballots in primary elections, see
§ 137; in elections for change of county -site, see § 499.
§ 123. (§ 109.) Illegal votes may be proven
etc. — Illegal votes, by the method aforesaid and
otherwise, may be proven by both parties, and
if such are proven on both sides, one shall stand
against another, and he is elected who has the
greatest number of legal votes. All are considered
legal not proven to be illegal. Acts 1851-2, p.
79.
As to what votes are illegal, see § 82, par. 11.
Decision Only as to Votes Cast. — This section does not au-
thorize the ordinary (see § 25) to enter into a general con-
sideration of supposed equitable rights or other rights of
contestants, and base his decision upon assumptions of how
voters would have voted had they been permitted to vote.
Simpson v. Rimes, 141 Ga. 822, 824, 82 S. E- 291.
ARTICLE. 2
Election of Member of General Assembly.
§ 124. (§ 110.) Proceedings when seat of a
member of legislature is contested. — The pro-
ceedings to contest the seat of a member of the
General Assembly are the same as stated in the
preceding Article, and may be transmitted to the
Governor, who shall send the same, immediately
after the organization, to the presiding officer of.
the house where the contest lies, or may be sent
direct to such presiding officer. Acts 1894, p. 41.
ARTICLE 3.
Other Contested Elections.
§ 125. (§ 111.) Contests in other elections. —
Whenever any contest arises over an election of
any constable, municipal officers, or other of-
ficers not hereinbefore provided for, the same
shall be filed with, heard and determined, by the
ordinary of the county wherein such contest may
arise, under the same rules and regulations as to
the rriode of procedure as prescribed in contests
where commission is issued by the Governor
The ordinary shall be entitled to a fee of two dol-
lars per day for each day occupied in hearing said
contest, to be taxed as costs, which may be en-
forced by execution against the party cast in the
contest. Acts 1893, p. 124.
As to the procedure prescribed by this section, see, gen-
erally, §§ 121-124 and for particular applications, see notes
to §'§ 121, 123. As to primary elections, see § 137. As to
contests in elections on changing county-site, see §§ 490-
501. As to contesting an election by quo warranto, see §§
5451 et seq.
Jurisdiction of Ordinary. — Where a contest is filed before
the ordinary of the county under the provisions of this sec-
tion, relating to contested elections, the ordinary has * no
other jurisdiction than, after examining and counting the
ballots as provided in preceding sections of the Code re-
lating to contested elections and taking evidence, to de-
clare whether the contestant or the contestee is elected to
the office in question, and has no jurisdiction to entertain
the question as to whether the election itself, out of which
the contest grew, was void; and if he exceeds the jurisdic-
tion and declares the election illegal, his judgment is void.
Walton v. Booth, 151 Ga. 452, 107 S. E- 63.
Where in response to the order of the ordinary, issued
upon the presentation of contestant's petition, the contestee
[38]
§ 126
PRIMARY ELECTIONS
§ 128
appeared and made a motion to strike said petition on the
ground that it set forth no valid and legal grounds for
contesting the election, the ordinary did not exceed his ju-
risdiction in entertaining said motion, in sustaining the
same, and in dismissing the petition; and where such judg-
ment was correct, the judge of the superior court, on appli-
cation by contestant for mandamus, erred in granting a
mandamus absolute, requiring the ordinary to hear the con-
test. Norwood v. Peeples, 158 Ga. 162, 122 S. E. 618. See
dissenting opinion in this case for contrary views.
Same — Municipal Elections.— Contests over the election of
municipal officers are to be conducted under the rules and
regulations of §§ 121-123, except that they shall be heard
and determined by the ordinary of the county where such
contests arise. Tupper v. Dart, 104 Ga. 179, 30 S. E. 624.
Exclusive Remedy for Defeated Candidate. — This section
provides the exclusive remedy by which a person claiming
that he was elected to a municipal office can contest the
question whether a rival candidate, who has been duly de-
clared elected thereto, was lawfully elected. In such a case
quo warranto is not the proper remedy. Cutts v. Scan-
drett, 108 Ga. 620, 34 S. E. 186.
ARTICLE 4.
Election Not Set Aside for Formal Defects,
When.
§ 126. (§ 112.) Election not void by reason
of formal defects. — No election shall be defeated
for non-compliance with the requirements of the
law, if held at the proper time and place by per-
sons qualified to hold them, if it is not shown
that, by that non-compliance, the result is dif-
ferent from what it would have been had there
been proper compliance.
See 5 Enc. Dig. 16-17.
As to the proper manner of conducting elections, see § 82.
General Rule. — An election held at the proper time and
place and by the proper officers is not illegal, though mis-
managed, when it does not appear that the result would
have been otherwise had the errors complained of not ex-
isted. Weil v. Calhoun, 25 Fed. 865, 875; Brumby v. Ma-
rietta, 132 Ga. 408, 64 S. E. 321; Houser v. Hartley, 157 Ga.
137, 144-5, 120 S. E- 622.
The word "qualified," as used in this section, relates ex-
clusively to the eligibility of managers to serve, and not
to qualification in the sense of taking an oath. Jossey v.
Speer, 107 Ga. 828, 33 S. E. 718. See note to § 78.
Violation of Directory Provisions Harmless. — Coleman v.
Board, 131 Ga. 643, 655, 63 S. E. 41.
Closing Registration Books Too Early. — When the regis-
tration books were mistakenly closed before they should
have been, the election will nevertheless stand unless those
who might have registered and voted were sufficient in
number to have been capable of changing the result. Cham-
lee.v. Davis, 115 Ga. 266, 271, 41 S. E. 691.
Omission of One Notice in Newspaper. — Where one of a
series of notices advertising an election was inadvertenly
omitted, yet where the votes of those who did not vote
would not have been sufficient in number to change the
result of the election, the omission may be treated as a mere
irregularity and of no effect under the provisions of this
section. Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120.
Ballots Improperly Marked. — Though ballots are printed
with a form of vote for only one side of the question at
issue, that fact alone will not vitiate an election. Ham-
mond v. Clark, 136 Ga. 313, 324, 71 S. E. 479.
Insufficient Number of Voters to Change Result. — When
the declared result of an election is that there was a ma-
jority of 83 votes one way or the other, a petition to con-
test the election which does not show good cause for throw-
ing out as illegal more than 75 votes presents no ground for
judicial action. Jossey v. Speer, 107 Ga. 828, 33 S. E. 718.
Election Held at Other than Designated Place. — Where
one place has been properly designated as an election pre-
cinct, an election held elsewhere is illegal. Walker v. San-
ford, 78 Ga. 165, 1 S. E. 424.
CHAPTER 8.
Primary Elections.
§ 127. (§ 113.) Primary elections, how con-
ducted.— Every political primary election held by
any political party, organization, or association,
for the purpose of choosing or selecting candi-
dates for office, or the election of delegates to con-
ventions in this State, shall be presided over and
conducted in the manner and form prescribed by
the rules of the political party, organization, or as-
sociation holding such primary elections, by man-
agers selected in the manner prescribed by such
rules. Such managers shall, before entering upon
the discharge of their duties, each take and sub-
scribe an oath that he "will fairly, impartially, and
honestly conduct the same according to the provi-
sions of law providing how primary elections shall
be held in the State, and in accordance with the
laws of this State governing regular elections for
the offices of this State." Should one or more or
the managers thus appointed to hold such elections
fail to appear on the day of election, the remaining
manager or managers shall appoint others in their
stead and administer to them the oath herein pre-
scribed. The managers shall take the oath be-
fore the notary public or other officer authorized
to administer oaths; but if no such officer can be
conveniently had, the managers may administer
the oath to each other. The oath, after being made
and subscribed, shall be filed in the office of the
clerk of the superior court of the county in which
the primary election shall be held, within five
days after an election. Acts, 1890-1, p. 210.
For manner of conducting a general election, see § 82. As
to necessity of participant in a primary election being a
qualified voter, see § 6402, par. 34. As to what qualified
persons may vote, see §§ 58, 59. As to requirement of
publishing campaign expenses, and penalty for not doing
so, see §§ 92, 93. As to what is a primary election, see
P. C, § 448. As to expense of conducting state-wide pri-
mary elections under the unit system, see § 138, par. 5. As
to necessity for candidate carrying majority of counties in
state-wide primary election, see § 138. As to the unit
system of primary elections for certain officers, see §§
138 (1) et seq.
Scope of Section. — The substance of the contention in
Norton v. State, 5 Ga. App. 586, 594, 63 S. E. 662, was
that not all primary elections are within the protection
of the statute, but only such primary elections as are held
by some political party, organization, or association, but
the court held that the words "held by any political party,
organization or association," as they appear in the stat-
ute, are not used in a restrictive sense, but are employed
epithetically, — not with the intention of limiting the scope
of the salutary enactment, but with the purpose of ex-
tending it to every known form of political primary elec-
tion; for every primary election is, according to the very
definition of the word, — a definition not only recognized
by popular usage and standard lexicographical authorities
but also by the Penal Code, § 448, which was in exist-
ence when the act now contained in this section was
adopted, — necessarily held by a party, or by an organiza-
tion or association of some kind, for the purpose of mak-
ing political nominations by ballot.
Political Committee Not Required to Declare Result of
Election. — In so far as this section and §§ 128 and 136 pro-
vide for declaring the result of primary elections, they
refer to action by the "managers" holding the' election,
and do not purport to impose duties on the members of
the executive committee of the political party holding the
election. Therefore, mandamus will not lie to require the
executive committee to declare the result. Clark v. Col-
quitt County, 158 Ga. 642. See, however, § 138 (1).
Administration of Oath. — Election managers are author-
ized by law to administer the official oath, one to an-
other; and if the three sign it in the presence of one an-
other, although only one of them purports to attest it,
the legal effect is that they administer the oath to one
another, but not that each or any of them administers it
to himself. Phillips v. State, 5 Ga. App. 597, 63 S. E.
667.
§ 128. (§ 114.) Exhibition of ballot-box.—
Before any ballots are received at such primary
elections, and immediately before opening the
polls, the managers shall open each ballot-box to
be used in the election, and shall exhibit the same
[39]
§ 129
PRIMARY ELECTIONS
§ 134
publicly, to show that there are no ballots in the
box. They shall then close and lock or seal up
the box, except the opening to receive the ballots,
and shall not again open the same until the close
of the election. They shall keep a list of voters
voting at the election, and shall, before receiving
any ballot, administer to the voter an oath, pro-
vided the voter's vote is challenged, that he is duly
qualified to vote according to the rules of the
party, and according to the elections laws of said
State, and that he has not voted before in such
primary election then being held. At the close
of the election the managers shall proceed pub-
licly to count the votes and declare the result.
They shall certify the result of the election, and
transmit the certificate with the tally-sheet or poll-
list, together with the ballots cast, and all other
papers relating to such primary election, within
the time and in the manner prescribed in this
Chapter. Acts 1890-1, p. 210.
See note to § 127.
As to duties of managers, see § 82. As to when a sus-
pected ballot may be examined, see § 122.
"Publicly" Counting Votes. — In Norton v. State," 5 Ga.
App. 596, 63 S. E. 662, the court adopted as the construc-
tion of the word "publicly" as used in this section the
interpretation given by the court in Tilton v. State, 5 Ga.
App. 59, 62 S. E- 651, of what is a public trial. In the
latter case it was held that there must be a strong spe-
cial reason applicable to each person excluded from a pub-
lic trial.
§ 129. Additional regulations. — Whenever any
political party in this State shall hold primary
elections for nomination of candidates for office,
such party or its authorities shall cause all can-
didates for nomination for Governor, State House
Officers, Members of Congress, United States
Senators, Judges of the Superior Courts, Justices
of the Supreme Court and Court of Appeals, Solici-
tors-General and Members of the General Assem-
bly to be voted for on one and the same day
throughout the State at such date as may be fixed
by the State Executive Committee of such party,
except where a second primary has been called by
the authorities of said party for any particular office
on some subsequent day, through failure to make,
for any cause, a valid nomination at the first pri-
mary, or in consequence of a contest: provided,
that said executive committee shall not fix the
date for the said general primary earlier than 60
days before the date of the general State election
in October: provided, further, that this section
shall not have the effect to require a primary for
judges and solicitors except in their respective
circuits,, or for members of the General Assembly
except in their respective counties, or for Sena-
tors except in their counties, as the authorities of
said party may authorize or direct. Acts 1908,
p. 55.
As to date for primary elections for officers named in
this section, see § 138 (5). As to unit system of primary
elections for U. S. Senators, Governor, State House Offi-
cers, and Judges of the appellate courts, see §§ 138 (1)
et seq. As to state- wide primary elections for filling va-
cancies in state, offices, see § 138 (1).
§ 130. Where elector shall vote. — No elector
shall vote in any such primary election in a militia
district other than the one in which he resides, or.
if he resides in a city, in a ward other than the
one in which he resides, if an election precinct be
located in such ward.
As to penalty for violation of this section, see P. C, § 668.
[40]
As to procedure when voter changes his residence, see §§
70, 71.
§ 131. Oath of manager, when to be taken. —
No person shall act as manager, clerk, or assist-
ant or in any other way take part in receiving,
counting, or consolidating the votes or results in
any such primary election who has not first taken
the oath prescribed by law for managers of pri-
mary elections, and no manager of any primary
election shall permit any person to act as assist-
ant or clerk or in any way take part in receiving,
counting, or consolidating the votes or results in
any such primary election who has not first taken
the oath now prescribed by law for the managers
of primary elections.
As to penalty for violation of this section, see P. C, §
668. As to administration of the oath, see § 127.
§ 132. Elector's name must be on registration
list. — No manager of any such primary election
shall receive the ballot of any elector until he has
first ascertained that the name of such elector
does appear upon the registration list furnished
for such election by the registrars, or filed by
them in the office of the clerk of the superior
court of the county in which the primary election
is held, and upon the receipt of such ballot the
name of the elector voting shall be checked or
marked on said list.
For provisions of the general election law to the same ef-
fect, see §§ 34, par. 8, 58, 59.
§ 133. Returns of managers, how filed ( and
controlled. — The returns of the managers, with
the tally-sheets, lists of voters and ballots, to-
gether with all papers connected with said elec-
tion, shall be filed in the office of the clerk of the
superior court of the county in which said elec-
tion is held, within four days after the final de-
claration of the result thereof. One of the lists of
the voters and one of the registration lists with
names of those checked or marked as voters shall
be exhibited by said clerk to any one desiring to
inspect same, but the other documents deposited
as aforesaid shall be kept unopened and under
seal until the next meeting of the grand jury, to
which grand jury one registration lists,
one list of voters, and the checked registration
list above mentioned shall be exhibited; and if
no action is taken thereon by the grand jury and
no contest has been filed within the time pre-
scribed by the authorities of said party, then all
of said election papers shall be destroyed.
As to penalty for violation of this section, see § 85, and see
P. C, § 668.
Examination of Ballots in Unlocked Box by Clerk. — Un-
der the proper construction of this section, it is a violation
thereof for a clerk of the superior court to open a ballot-
box and examine the ballots therein which were cast in a
primary election, the ballots being a part of the returns of
the managers of the election and on file in the office of the
clerk, whether or not the ballot-box was locked or sealed
when the clerk opened the box and inspected the ballots.
Bartlett v. State, 27 Ga. App. 7, 107 S. E. 347.
§ 134. Official ballots shall be provided.— The
persons authorized by the rules of the party, or-
ganization, or association to hold such primary
election shall provide an official ballot whereon
shall be printed all the names of the candidates
for the various offices hereinbefore named.
As to manner of providing contents, etc., of ballots for
primaries, see § 138 (9). As to ballots for party election
other than primaries, see § 138 (10). As to penalty for vio-
lation of this section, see P. C, § 668.
§ 135
PRIMARY ELECTIONS
§ 138(2)
§ 135. Party authorities may formulate addi-
tional rules. — The party authorities shall, in all
matters not provided for in this chapter, formu-
late rules and regulation for holding said primary
election, and for making returns thereof to the
proper party authorities.
As to penalty for violation of this section, see P. C, §
66$.
§ 136. (§ 115.) Disposition of papers. — Every
such primary election shall be held at the time
and place, and under the regulations prescribed
by the rules of the party, organization, or associa-
tion holding the same, and the return shall be
made and the result declared as prescribed in this
chapter. Acts 1809-1, p. 210; 1900, p. 40; 1908,
p. 55.
See note to § 127.
For general penalties applicable to managers of elections,
see §§ 83, 84.
§ 137. Contests. — When a contest is filed on
the ground of illegal votes, any of which it is
claimed on affidavit can probably be proven by
resort to the ballots, specifying what ballots, it is
the duty of the clerk of the superior court to de-
liver the same, together with all papers, connected
with said primary election, to the person or per-
sons who preside at the taking of the testimony
in such contested election, upon demand, who
shall examine said suspected ballots and none
other.
As to penalty for violation of this section, see P. C, §§
668, 674. As to when ballots may not be and may be ex-
amined, see §§ 82, 122. As to rules for contesting a primary
election, see § 125.
§ 138. Majority vote required in certain cities.
— No person shall receive the nomination for any
office voted on in any primary election, held by
any political party, organization, or association,
without receiving a majority of all the votes cast
in such primary; and if no one person voted on in
such primary receives such majority, a second
primary for such party, organization, or associa-
tion shall be held not less than ten nor more than
thirty days thereafter, and, in such second pri-
mary, only the two candidates receiving the high-
est votes in the first primary shall be voted for,
and the person receiving the majority of the votes
cast in such second primary shall be accepted as
the nominee or candidate of the party, organiza-
tion, or association holding such primary, and shall
be voted for as such nominee, in the general elec-
tion for which the said primary was held: Pro-
vided, however, that the provisions of this section
shall only apply to primaries held for municipal
officers in cities having a population of seventy-
five thousand and upwards, as ascertained by the
census of the United States last taken. Acts 1907,
p. 98.
§ 138(1). County unit vote, — Whenever any
political party in this State shall hold primary
elections for nomination of candidates for United
States Senator, Governor, State House Officers,
Justices of the Supreme Court, and Judges of the
Court of Appeals, such party or its authorities
shall cause all candidates for nominations for said
offices to be voted for on one and the same day
throughout the State, which is hereby fixed on
the second Wednesday in September of each year
in which there is a regular general election. Candi-
[4
dates for nominations to above named offices who
receive, respectively, the highest number of popu-
lar votes in any given county shall be considered
to have carried such county, and shall be entitled to
the full vote of such county on the county unit
basis, that is to say, two votes for each representa-
tive to which such county is entitled in the Lower
House of the" General Assembly. If in any county
any two or more candidates should tie for the
highest number of popular votes received, then
the county unit vote of such county sball be
equally divided between the candidates so tying.
All sucb county unit votes shall within ten days
after such primary be accurately consolidated by
the chairman and secretary of the State commit-
tee of the political party holding such primary,
and published at least one time in a newspaper
published at the capital of the State, within three
days after the completion of the consolidation,
certified under the hands and seals of said chair-
man and secretary; and the candidates for said
offices, respectively, who receive a majority of all
of the county unit votes, throughout the entire
State, upon the basis above set forth, shall be de-
clared by the State convention of the party hold-
ing such primary, or the permanent chairman
thereof, or other party authority, without the nec-
cessity of a formal ballot, to be the nominees of
such party for the above named offices, respec-
tively, and it shall be the duty of the State Ex-
ecutive Committee elected or appointed at such
convention, or by its authority, or the chairman
or secretary thereof, or other authority of such
party, to see to it that the names of all such suc-
cessful candidates are placed upon the tickets or
ballots of such party at the general election fol-
lowing such primary, and such successful candi-
dates shall be considered, deemed and held as the
duly nominated candidates for the offices named
of such party; provided, that, in the event there
are only two candidates for any particular office
referred to in this section and it should appear,
after the consolidation of all of the county unit
votes throughout the State, that each of said can-
didates have received an equal number of county
unit votes, the one of said candidates who shall
have received in said primary election a majority
of the popular votes throughout the State shal]
be declared by the State convention of the party
holding such primary, or the permanent chairman
thereof, or other party authority, without the
necessity of a formal ballot, to be the nominee of
such party for such office; and it shall be the duty
of the State Executive Committee elected or ap-
pointed at such convention, or by its authority,
or the chairman or secretary thereof, or other
authority of such party, to see to it that the name
of such successful candidate is placed upon the
tickets or ballots of such party at the general
election following such primary, and such suc-
cessful candidate shall be considered, deemed and
held as the duly nominated candidate of such
party for the office named; provided, further, that
if no convention of such party is called or held,
the declaration of the result shall be made in such
manner as may be prescribed b)' the State com-
mittee or other authority of such part}'. Acts
1917, p. 183.
§ 138(2). Second primary election. — In the
1]
§ 138(2)
PRIMARY ELECTIONS
§ 138(4)
event that, after such consolidation of all the •
county unit votes throughout the State, it shall
be made to appear that in the contest for any one
or more of said officers, no candidate has received
a majority of all of the county unit votes through-
out the State, upon the basis as above set forth,
and it shall further appear that there are more
than two candidates for any one or more of said
offices, such political party shall hold a second
primary election throughout the State on the first
Wednesday in October following such first pri-
mary election, and in such second primary elec-
tion only the two candidates ascertained to have
received the highest number of county unit votes
at the first primary election for any particular
office shall be voted for; and the vote shall be
consolidated, and the result declared and certified
within ten days after said second primary elec-
tion, and published at least one time in a news-
paper published at the capital of the State within
three days after the completion of such consolida-
tion, certified under the hands and seals of said
chairman or secretary; and the candidate receiv-
ing a majority of the county unit votes through-
out the State shall be declared by the State con-
vention of the party holding such primary, or
the permanent chairman thereof, or other party
authority, without the necessity of a formal ballot,
to be the nominee of such party for the particular
office for which he is a candidate; and it shall be
the duty of the State Executive Committee elected
or appointed at such convention, or by its au-
thority, or the chairman or secretary thereof, or
other authority of such party, to see to it that the
names of all such successful candidates are placed
upon the tickets or ballots of such party at the
general election following such primary, and such
successful candidates shall be considered, deemed
and held as the duly nominated candidates for
the offices named of such party; provided, that
if both candidates for any office in said second
primary election shall receive an equal number of
county unit votes, after the consolidation of all
of the county unit votes of all the counties of the
State, then said State convention or the perma-
nent chairman thereof, or the secretary thereof, or
other authority of such party, shall declare the
candidate receiving the majority of the popular
votes cast at said second primary election through-
out the State as the regular nominee of such party
for that particular office; provided, further, that
if no convention of such party is called or held,
the declaration of the result shall be made in such
manner as may be prescribed by the State com-
mittee or other authority of such party, and, pro-
vided, further, that said second primary election
shall not affect the nomination of any candidate
or candidates for any one of said offices who shall
have received a majority of the county unit votes,
at the first primary election, and said second pri-
mary election shall only be held for the purpose
of deciding contest or contests for office or offices
in which no candidate shall have received a ma-
jority of the county unit votes at the first primary
election; provided, further, in the event there are
more than two candidates in the first primary and
any two candidates should tie, in said first pri-
mary, for the next or second highest number of
county unit votes received, the candidate receiv-
ing the highest number of popular votes in said
[
first primary, as between said two candidates so
tying, shall make the contest in said second pri-
mary, against the candidate who received in said
first primary, the highest number of county unit
votes; and in the event any three or more candi-
dates should tie, in said first primary, for the
highest number of county unit votes, the two
candidates (among said candidates so tying for
the highest number of county unit votes), receiv-
ing the highest number of popular votes in said
first primary, shall make the contest against each
other in said second primary; provided, further,
that all of the provisions of this section of this
Act relative to a second primary, in the event no
candidate receives a majority of all of the county
unit votes throughout the State, in the first pri-
mary, shall apply only to the offices of United
States Senator and Governor; and no second pri-
mary shall be necessary to finally decide the con-
test for any other office named in section 138(1);
and in the contest for all of said offices, except
United States Senator and Governor, the candi-
dates for such offices who receive the highest
number of county unit votes, throughout the
State, upon the basis above set forth, shall in like
manner be declared the nominees of such party
for said offices, respectively; and provided, fur-
ther, that in the event, after such consolidation,
it shall be made to appear that any two or more
candidates for the same office (except in contest
for United States Senator, and Governor) shall
have received an equal number of county "unit
votes, then the candidate or candidates receiving
the highest number of popular votes throughout -
the State shall, in like manner, be declared the
nominee or nominees of such party for said of-
fices, respectively; it being the intention of this
proviso to this section to provide that the majorit}'
of the county unit vote shall be the determining
factor for the nomination of United States Sena-
tor and Governor and that the plurality of the
county unit vote shall be the determining factor
for the nomination to all other offices named in
section 138(1). Acts 1917, pp. 183, 185.
§ 138(3). Convention, when held. — In each
regular election year in which a second primary
shall be necessary, by reason of a failure of a can-
didate or candidates to receive a majority of the
county unit votes at the first primary election,
such party or its authority shall not hold its con-
vention until after the expiration of fifteen days
from the date of such second primary election.
Acts 1917, pp. 183, 188.
§ 138(4). Special primary elections!. — 'Special
primary elections to fill vacancies in any of the
offices referred to in this Act shall be held on such
date as may be fixed by the State Executive Com-
mittee of such party; but the same rules pre-
scribed in this Act for determining the result in
general primary elections for the offices named
shall govern in determining the result of any
special primary election; and a second primary
election shall be held within fifteen days after
the date of such first primary election, in the
event no candidate receives a majority of all of
the county unit votes throughout the State; and
the same duties and obligations are hereby im-
posed upon the chairman, secretary, convention
or other party authorities in the case of such spe-
42
§ 138(5)
GENERAL REGULATIONS GOVERNING ELECTIONS
§ 138(9)
cial primary elections as are in this Act imposed
upon them in the case of general primary elec-
tions; provided, that if no convention of such
party is called or held, to follow a special primary
election, the declaration of the result shall be
made in such manner as may be prescribed by
the State committee or other authority of such
party. Acts 1917, pp. 183, 188.
§ 138(5). Expenses. — The expense of holding
such primary elections shall be paid by the politi-
cal party which causes the same to be held. Acts
1917, pp. 183, 189.
§ 138(6). Limitations. — Nothing in this Act
shall be construed to provide or require any
definite unit of election for candidates for nomina-
tions for members of Congress, judges of the
superior courts, solicitors-general, members of the
General Assembly and county officers; and this
Act shall not be construed to require a primary
for any of said last named officials, except in their
respective districts, circuits or counties, as now
provided by law. Provided, however, that pri-
maries for nomination of members of Congress,
judges of the superior courts, solicitors-general
and members of the General Assembly shall be
held on the date named in section 138(1) for pri-
maries for United States Senator, Governor, State
House Officers, Justices of the Supreme Court
and Judges of the Court of Appeals. Acts 1917.
p. 183, 189.
§ 138(7). Laws of force. — All the laws now of
force in this State in reference to the qualification
of voters and their registration shall apply to said
elections and that no persons shall be entitled to
vote at any such primary election who is not a
duly qualified and registered voter according to
the laws of this State and who is not also in ac-
cordance with the rules and regulations of the
party holding the same. Acts 1917, pp. 183, 189. '
§ 138(75/£). Nominations for General Assem-
bly members and Superior Court Judges in cer-
tain counties; specification of incumbent opposed;
plurality. — Candidates for the General Assembly
in all counties of population of 200,000 or more
and candidates for Judges of the Superior Court
in all judicial circuits having a county or coun-
ties of population of 200,000 or more, according to
the last or any future census of the United States,
shall, when qualifying for a primary, specify the
particular incumbent which said candidate de-
sires to oppose or succeed, and all ballots shall be
prepared accordingly. The candidate receiving a
plurality of the votes cast for candidates for such
office shall be declared the nominee therefor. Acts
1925, p. 205.
CHAPTER 9.
General Regulations Governing Elections.
§ 138(8). Booths. — Whenever any election,
whether general, special or primary, State,
County, Municipal, City, Town or Village, or any
election to determine any matter or question
which is or may be referred to the vote of the
people of the State, of a county or of a city, town
or village or any election of any kind or character
is to be held it shall be the duty of the Ordinary
of each county at the expense of the county, or in
[
a case of a purely municipal election, at the ex-
pense of the municipality, to provide at each poll-
ing place, a private room or rooms, a booth or
booths, or an enclosure or enclosures, with such
compartments therein as may be necessary to
accommodate the persons qualified to vote at such
polling places and shall furnish each apartment with
a shelf or table for the convenience of the electors,
in the preparation of their ballots, each booth or
compartment shall be so arranged that it will be
impossible for one elector at a shelf or table in
one compartment, or any one else, to see an
elector, at a shelf or table in another com-
partment in the act of marking his ballots.
Each voting shelf or table shall be kept sup-
plied with conveniences for marking the bal-
lots. No person or persons, other than the voter
himself while occupying the booth or while in the
immediate act of voting shall come within ten
feet of said booth or booths while said polls are
open. This section shall not apply to any of the
officers in charge of holding said election. Acts
1922, pp. 97, 98.
As to penalty for violation of this act by voter [§§ 138 (8)-
138 (15)], see § 676 (3) P. C. As to penalty for neglect of
duty imposed by this act, see § 676 (8) P. C. As to pen-
alty for manager, clerks and other officials rendering as-
sistance in the violation of this act, see § 676 (4) P. C.
§ 138(9). Primary elections; ballots; qualifica-
tion of candidates. — In all primary elections, it
shall be the duty of the county, or city executive
committee, or other party authority of the politi-
cal party holding the primary election, to provide
official ballots for all such elections, with the
names of all candidates, who have properly quali-
fied, in accordance with the rules of such party,
printed thereon; such names to be arranged upon
said ballots in alphabetical order as to candidates
for the same office, said ballots to be numbered
consecutively and bound together in blocks or
pads, in such manner that each ballot may be de-
tached and removed, separately. Each ballot
shall have attached at the top thereof a sheet,
which may be easily detached with a blank space
for the name of the voter, and printed thereon a
letter of the alphabet or some other designation,
and a number and the same designation and
number shall be printed on the ballot itself; but
a different designation or letter shall be printed
on the ballots used at the various polling places,
so that the ballots at no two polling places, in the
same county, shall bear the same designation, and
so that all the ballots shall be so arranged that
the printed designation and number on the stub
and on the ballot shall appear on the reverse side
of the ballot, so that the voter, after he has pre-
pared his ballot may fold the same and after fold-
ing, the manager may examine and compare the
number and designation on the sheet bearing the
name of the particular voter without exposing, in-
specting or disclosing the face of the ballot itself.
On the ballot shall be printed such words as
will enable the voter to express his choice, such
as "Vote for one," "Vote for two." and the like;
and the voter or elector shall erase, mark out or
cancel the name or names of the candidates for
whom he does not wish to vote. If at any time,
the proper authorities of an)' political party shall
submit to the members of such party any matter
or question to be voted upon. Said authorities
43]
§ 138(10)
GENERAL REGULATIONS GOVERNING ELECTIONS
§ 138(12)
shall also have printed on said ballots the neces-
sary language to guide the voter in the expres-
sion of his desire as to any such matter or ques-
tion.
All candidates for nomination for State and
county offices including members of the General
Assembly, in primary elections which are called
and held by any political party shall qualify as
such candidates in accordance with the rules of
the party calling the primary, not later than
thirty days previous to the holding of such pri-
mary, and the committee or other party authority
of such party shall not fix any other or different
time limit for qualification; provided, however,
that this provision shall not apply to special pri-
mary elections to fill vacancies. Acts 1922, pp.
97, 98.
For the general law governing primaries, see §§ 127 et seq.
As to prior law requiring primary ballot, see § 134.
§ 138(10). Ballots in other than primary elec-
tions.— In all elections other than primary elec-
tions held under the auspices of a political party,
it shall be the duty of the Ordinary to provide
and furnish at the expense of the county, and in
case of purely municipal elections, at the expense of
the municipality, official ballots for all such elec-
tions printed thereon, in separate columns, the
names of the candidates of each political party,
designating the names of the political party to
which they belong, and also the names of any
other candidates for the offices to be filled at said
election; and in case of election for President and
Vice-President of the United States, the names
of the candidates for such offices, may be added
with the electors and party designation; provided,
however, it shall not be the duty of said officers
to place the names of any candidates on said of-
ficial ballots, unless notice of their candidacy shall
be given, in the following manner, to-wit: All
candidates for National and State offices, or the
proper authorities of the political party nominat-
ing them, shall file notice of their candidacy, giv-
ing their names and the offices for which they are
candidates, with the Secretary of State, at least
thirty days prior to the regular election, except in
cases where a second primary election is neces-
sary the names of such candidates shall be filed
with the Secretary of State just as soon as pos-
sible after the determination of the result of said
second pirmary. All candidates for district and
county offices, either by themselves, or by the
proper authorities of the party nominating them,
shall file notice of their candidacy with the
Ordinary of the county at least fifteen days be-
fore the regular election, and all candidates for
municipal offices shall file' notice of their candidacy,
by themselves, or by the proper authorities of
the party nominating them, with the Mayor or
other chief executive officer, of the municipality, at
least fifteen days before the regular election. In
the event of the resignation or death of any nomi-
nee, of any political party prior to the regular
election, at which the name of said nominee is to
appear on the official ballot, said vacancy in nomi-
nation shall be filed in such manner as may be
determined by the proper authorities of such
party.
Said officers shall also have printed on said
ballots such necessary language for the voters to
express their desires as to any question or mat-
[
ter which is or ma}' be submitted to the people
at any such election.
In all other particulars said ballots are to be
arranged, printed, and prepared, for regular elec-
tions, as provided in section 138(9). Acts 1922,
pp. 97, 100.
§ 138(11). Voting. — Only one voter shall be
allowed in a compartment of a room or booth or
enclosure, at a time and immediately upon enter-
ing the booth or compartment, the voter must
procure a ballot from the managers, immediately
prepare, vote the same and retire. It shall be
the duty of the managers before handing a ballot
to the voter to ascertain that he is duly registered
and qualified under the law to cast a vote, then
write the name of the voter on the sheet of the
ticket or ballot, and after the voter has prepared
the ballot and before depositing the same in the
ballot box, it shall be the duty of the manager
to see that the ticket attempted to be voted by
the voter bears the same letter or designation
and the same number as the sheet on which ap-
pears the name of the identical voter, and it shall
be unlawful for any manager or clerk to receive
or count any ticket or ballot, except in conformity
with these regulations, and any voter attempting
to vote any other ticket or ballot, knowingly or
wilfully, shall lose his vote for the election in
which he offers to vote. If a ticket be spoiled by
a voter it shall be the duty of the managers be-
fore delivering another ticket or ballot to the
voter, to get from the voter the ticket or ballot
so spoiled. Any voter applying to vote who shall
state under oath in writing to any of the mana-
gers, which said oath may be administered by
any of the managers, that by reason of his in-
ability to read the English language, or by rea-
son of blindness or the loss of the use of his hands
or other physical infirmity, he is unable to pre-
pare his ballots, may have the assistance of any
two managers jointly and not separately, in the
preparation of his ballot. No voter, shall at any
time, take or remove any ticket or ballot from
the booth or compartment. The managers shall
preserve these written oaths or affidavits, and
return them with the other election papers to the
proper officials. Acts 1922, pp. 97, 101.
As to improper interference with ballot by manager
called in to assist voter in preparing ballot, see § 676 (6)
P. C.
§ 138(12). Ballots and election supplies. —
The officers or party authorities furnishing to the
election managers the ballots provided for in sec-
tion 138(9) and 138(10) of this Act shall provide
at least twenty-five per cent, more ballots at each
polling place than there are qualified voters reg-
istered at said polling place, and shall also
furnish all other election supplies required by
law, such as blanks for lists of voters, tally
sheets, etc., at the expense of the county, muni-
cipality, or political party, according as to whether
the same be a regular State or county election,
municipal election or primary election, and it
shall be unlawful for any election official or party
authorized to deliver any ballot or ticket to any
person other than a duly appointed manager or
clerk of the election and it shall be unlawful for
any manager or clerk or other election official, to
deliver any ballot or ticket to any person other
I than a qualified voter or elector, and not to him.
44 ]
138(13)
POLITICAL MASS MEETINGS REGULATED
§ 138(22)
until he applies for one at the proper voting place
for the purpose of voting the same. Acts 1922, p.
102.
§ 138(13). Preparation of ballots. — No printer,
publisher or other person engaged by the officials
herein designated to provide and furnish ballots,
in case of a regular election, or by the authorities
of any political party, in case of primary election
to print or prepare election ballots, shall deliver
or furnish a ballot or ballots, or any likeness of
the same, to any person other than said officials or
said party authorities, or on their written order;
and no person engaged by such printer or pub-
lisher or other person to aid or assist in the print-
ing or preparation of said ballots shall retain or
deliver or furnish a ballot or ballots or the likeness
or form of the same to any person other than
said officials or party authorities, or on their writ-
ten order. Nor shall any person, who having in
any manner procured an official ballot or likeness
thereof, furnish, deliver or give the same to any
one other than one of said officials, said party
authorities or an election manager. Acts 1922, pp.
97, 102.
As to the penalty for violating this section, see § 676 (1)
P. C.
§ 138(14). Instruction cards. — It shall be the
duty of the Ordinary to cause to be printed in
large type cards of instructions for the guidance of
voters in preparing their ballots; they shall furnish
to the sheriff three or more if necessary of such
cards in each booth or compartment for the prepa-
ration of ballots, and not less than three promi-
nent places elsewhere about the outside of the poll-
ing place on the day of the election. Acts 1922,
pp. 97, 103.
§ 138(15). Improper voting. — No person with-
out said voting room, booth or enclosure shall in
any manner, either by words or gestures, attempt
to influence or interfere with any voter who is in
said booth, room or enclosure preparing his ballot,
nor shall any person enter or go in any booth,
room, or enclosure while another person or voter
is therein; nor shall any person commit any act
of disorder or be guilty of any disorderly conduct
in, near or at any of said voting rooms, booths,
or enclosures. Acts 1922, pp. 97, 103.
As to penalty for the violation of this section, see §
676 (2) P. C.
§ 138(16). Registration laws. — Nothing in this
Act contained shall be construed or alter or change
the requirements of law as to the registration of
voters now or hereafter to be enforced under the
laws of this State. Acts 1922, pp. 97, 104.
For registration laws, see § 36 et seq.
§ 138(17). Ordinary's fee.— The Ordinary shall
be entitled to the sum of three dollars for each
election for which he makes the arrangement and
performs the duties imposed by this Act, except
in cases of purely municipal elections, when same
shall be paid out of the treasury of the munici-
pality. Acts 1922, pp. 97, 105.
§ 138(18). Preservation of election supplies. —
It is hereby made the duty of the Ordinary of
each county, after each election to preserve and
secure for subsequent use, for the same purpose
all of the provisions, sections and parts of the pri-
vate rooms, booths, compartments, or enclosures,
[
and all materials, apparatus or paraphanalia in
connection therewith which it is possible or
practicable for them to preserve and secure so as
to reduce as much as possible the expense of mak-
ing provision for future elections; provided, when-
ever, in any particular county, city, town or vil-
lage any regular or primary election is held in
which there is no contest for any office to be filled
at said election and in which each and every
candidate has no opponent, the Ordinary of the
county shall incur no expense for, nor provide, nor
furnish any private rooms, booths, or enclosures
as provided by section 138(8) of this Act; and
whenever in any particular county, city, town or
village any primary or regular election is held in
which there is no contest for any office to be filled
at said election, and in which each and every candi-
date has no opponent the party authorities in case
of a primary, nor the Ordinary of the county, in
case of a regular election, shall not be required
to provide tickets or ballots in conformity to sec-
tions 138(9) and 138(10), respectively, but shall
be required to furnish tickets or ballots only in
the simple form heretofore used in this State. Acts
1922, pp. 97, 105.
§ 138(19). Made operative by recommendation
of grand juries. — This Act shall not become or be
operative in any county in this State until it is
first recommended to be put into force and opera-
tion by two consecutive grand juries of such
county. Acts 1922, pp. 97, 105.
§ 138(20). Nullification by recommendation of
grand juries. — At any time after this Act has been
in operation in any county for as long as six years
then if two separate consecutive grand juries of
said county shall recommend that its operation
shall cease, then such Act shall be inoperative in
said county. Acts 1922, pp. 97, 106.
§ 138(21). Time of keeping open polls in certain
counties. — This Act shall apply to all counties in
the State of Georgia having by the United States
census of 1920 a population of at least 11,709 in-
habitants and not more than 11,712 inhabitants.
In all such counties all elections precincts in in-
corporated cities or towns and in all other pre-
cincts in such counties having as many as 350 reg-
istered voters shall remain open from 9 o'clock
A. M. until 6 o'clock P. M. This Act shall apply to
all elections held in such counties and precincts
whether general, special, primary or otherwise
except, however, it shall not apply to elections
that are solely municipal. Acts 1925, p. 187.
As to time of day for keeping polls open for elections for
members of General Assembly generally, see § 80.
CHAPTER 10.
Political Mass Meetings Regulated.
§ 138(22). Participants to be qualified voters. —
No person shall offer to participate or be allowed
to participate in any manner in any political mass
meeting, convention or any other kind of meeting
held for the purpose of electing or nominating
officers or delegates to any County, District, State
or any other kind of political convention or mass
meeting or convention unless such person at the"
time is a duly registered and qualified voter of the
45 ]
§ 138(23)
THE GOVERNOR
§ 144
county or district where such meeting is held. Acts
1925, p. 321.
As to penalty for violation of this act, see § 676 (11) P. C.
§ 138(23). Held in county court house.— Meet-
ings, mass meetings, county and district conven-
tions of any political parties held in this State shall
ibe held in the county court house of the county
wherein held, the day and hour of such meeting or
convention to be posted at the court house door
ten days prior to the date therein named for hold-
ing such meeting or convention. Acts 1925, p. 321.
THIRD TITLE.
CHAPTER 1.
The Governor.
Of the Executive Department.
For full treatment of this subject, see 6 Cum. Dig. 669;
6 Enc. Dig. 784. See also Article 5 of the Constitution, §§
6470-6488.
ARTICLE 1.
Inauguration and Oath.
§ 139. (§ 116.) Governor's inauguration. —
The Governor-elect shall begin the discharge of
his duties from the time of his inauguration. The
ceremony of inauguration shall take place during
the first week of the session of the General As-
sembly next after the election, and on such day of
that week as the General Assembly, by joint
resolution, appoints. On failure of appointment,
it takes place at twelve o'clock, meridian, on
Saturday of that week, unless prevented by provi-
dential causes.
As to election of the Governor, see § 82, par. 10.
§ 140. (§ 117.) His oath, when taken.— The
oath prescribed by the tenth paragraph of the first
section of the Fifth Article of the Constitution of
this State, and the oath to support the Constitu-
tion of the United States, shall be taken by the
Governor-elect in the presence of the General As-
sembly.
See §§ 6479, 6682.
ARTICLE 2.
Commander-in-Chief, Duty in Case of Insurrec-
tion.
§ 141. (§ 118.) May call out military.— It is
the duty of the Governor to see that the laws are
executed. For this purpose he has power, as com-
mander-in-chief, to call out the military whenever,
in his discretion, the due, enforcement of the pro-
cess of the courts is so resisted and set at defiance
as to require such interposition.
Commander of Military and Naval Forces. — Section 6480
provides that the Governor shall be commander-in-chief of
military and naval forces of the State. — Ed. Note.
Duty as to Process. — -Under this section the duty of the
Governor in the last resort is to enforce the process of the
courts. He is the executive of the process of the courts,
as well as for the enforcement of all law generally. The
idea of making him a party defendant without his consent
is inconsistent with this great duty. Mayo v. Renfroe, 66
Ga. 408, 427.
§ 142. (§ 119.) In case of insurrection or in-
vasion.— In case of invasion or insurrection, the
■ Governor has power to call out all volunteer mili-
tary companies, or the militia, or both, for the de-
fense of the State, until such time as the General
Assembly meet; and when so called into action,
he has power to make all necessary provision for
their transportation, accommodation, equipment,
and support.
As to organization of militia, see §§ 6591, 6592.
ARTICLE 3.
Appointment of Commissioner of Deeds.
§ 143. (§ 120.) May appoint commissioners of
deeds. — He shall have power to appoint, in other
States and Territories of the United States, com-
missioners to take and certify the acknowledg-
ment or proof of deeds or other conveyance of
property in this State, of depositions under com-
missions or otherwise, of powers of attorney, of
wills executed by persons devising or bequeathing
property within the State, and of other instru-
ments in writing required to be attested under the
laws of this State. Act 1829, Cobb, 174.
See § 4203.
Editor's Note. — This law was first enacted in 1829 and
was embodied in Cobb's Digest, pp. 173-174. In discussing
the section in Baker v. Magrath, 106 Ga. 419, 420, 32 S.
E. 370, it is stated that: "There was evidently an effort
upon the part of the codifiers to embody in the present
Code (of 1895) the provisions of this Act of 1829. See Po-
litical Code, § 120, which, in its present shape, first ap-
peared in the Code of 1863, and has been embodied in every
subsequent code since that date. That section does not
contain specifically the provisions of section II of the Act
of 1829, giving such a commissioner of this State author-
ity to administer an oath or affirmation to any person
who shall be willing and desirous of making the same;
but we think there was an evident intention to embody
in the Code the provisions of that section, as well as the
one just preceding, in a condensed form and in general
terms.
The word deposition appearing in this section may be
used in two senses. In its restricted and technical sense,
it is usually limited to the written testimony of a wit-
ness given in the course of a judicial proceeding, at law
or in equity. But it is also a generic expression, which
embraces all written evidence verified by oath, and thus
includes "affidavits." Baker v. Magrath, 106 Ga. 419, 421,
32 S. E- 370.
Proof of Appointment. — Commissioners can be appointed
only by the Governor and proof of the appointment can
be made to appear by resort to the minutes of the Exec-
utive Department. Hadden v. Earned, 87 Ga. 634, 13 S.
E- 806. Section 5656 of this Code now provides that official
attestation shall be prima facie evidence of official char-
acter and authority. — Ed. Note.
Powers of Commissioner Same as Resident Magistrate.
— It was decided in Sugar v. Sackett, 13 Ga. 462, that:
"A commissioner for this State, in New York, duly ap-
pointed, is empowered by our law to administer an oath
in any case in which a magistrate, resident in our State,
may administer it." Baker v. Magrath, 106 Ga. 419, 420,
32 S. E. 370. And this rule was not changed by the Acts
of 1899, p. 79, embodied in this Code as § 5646, providing
specifically for affidavits made out of the State. Simpson
v. Wicker, 120 Ga. 418, 422, 47 S. E. 965.
Power to Administer Pauper Affidavit. — A commissioner
of deeds for the State of Georgia residing in another State
has authority to administer there a pauper affidavit re-
quired of plaintiff in error to relieve him from payment
of costs in this court. Baker v. Magrath, 106 Ga. 419,
32 S. E. 370.
Power to Certify Official Character of Foreign Officer. —
A Georgia commissioner has no power to certify to the
official character of a person who holds his appointment
under the authority of another state. O-Bannon v. Pare-
mour, 24 Ga. 489.
Equity has jurisdiction to reform and foreclose a mort-
gage of Georgia realty executed in New York before a
commissioner, without any other witness. McCrary &
Co. v. Austell, 46 Ga. 450.
§ 144.
ARTICLE 4.
Commissions What Officers.
(§ 121.) Must grant commissions. — He
[46]
§ 144
PROPERTY PURCHASED, WHEN
§ 152
shall grant commissions to all such officers of this
State, including senators and representatives in
Congress, as are required to hold them, and in ail
cases he may, in his discretion, issue a dedimus
potestatem to such officers as are authorized to
administer oaths, requiring the qualification of the
officer elect as provided by law, and to issue to
him his commission. The forms of all commis-
sions shall be in the discretion of the Governor.
Commissions thus issued are final, except where
the Constitution and laws otherwise provide.
See 6 Enc. Dig. 785.
As to contested election of officers requiring Govern-
or's commission, see § 121. As to officers of new coun-
ties, see § 835. As to appointments rejected by Senate,
see § 6484.
Editor's Note.— By the Act of 1921, codified as § 120 (2),
the election returns, of all civil officers who are commis-
sioned by the Governor are to be sent to the secretary of
state rather than the Governor as provided by § 82 (9)
prior to its amendment in 1921. [But see note under §
120 (2).]
Personal Attention of Governor. — It is not essential that
the Governor give his personal attention to the details
incumbent upon him by this section, he may by his
dedinus polestatem, devolve the duties upon one of the
officers of the state authorized to administer oaths. Lewis
v. Board, 70 Ga. 486, 497.
Finality of Commission. — In so far as election to a county
office is evidenced by the returns merely, a commission is-
sued by the Governor is made final by this section of the
Code, where no hearing has been sought before the Gov-
ernor prior to the commission being issued. And this is so
whether the returns sent up be complete or incomplete. Ginn
v. Linn, 83 Ga. 180, 9 S. E. 784. But where every right
to a commission is in the applicant, and respondent is a
usurper, it can not be said that the illegal issuance of the
commission would deprive the applicant of an appeal.
Hathcock v. McGouirk, 119 Ga. 973, 978, 47 S. E. 563.
It has uniformly been held by this court that a mere
ministerial act of the Governor in issuing a commission
is not final. McCants v. Layfield, 149 Ga. 231, 239, 99 S.
E. 877.
Same — Quo Warranto. — The issuance of a commission is
an act belonging exclusively to the executive department
and cannot be inquired into by any subsequent court pro-
ceedings. Quo warranto, therefore, will not lie. Cor-
t)itt v. McDaniel, 77 Ga. 544, 2 S. E. 692. Whether the
writ of quo warranto would lie, in a proper proceeding
under § 5451, to a question not passed on by the Gov-
ernor, is discussed, but not decided, in the same case. —
Ed. Note.
Same — Mandamus. — The duty of the Governor, to issue
commissions to clerks, for political reasons, could not be
enforced by mandamus. State v. Towns, 8 Ga. 360.
ARTICLE 5.
Duty as to Property of State.
§ 145. (§ 122.) Shall issue grants.— He shall
issue all grants to lands under the laws of this
State, but such shall not be conclusive, but sub-
ject to the investigation of the courts; and when-
ever such are declared by the proper court to have
been wrongly issued, it is his duty to issue another
grant in accordance with such decision, if it so
requires.
As to form of grants, see § 3799. As to setting aside
grant, see § 3807. As to necessity for great seal, see §
210, p. 2.
§ 146. (§ 123.) Shall supervise public prop-
erty.— He shall have general supervision over all
property of the State, with power to make all
necessary regulations for the protection thereof,
when not otherwise provided for. He must as-
sign rooms in the capitol to all officers who must
hold their offices there, and, in the absence of any
legislative provision, designate the purpose for
which other rooms are to be applied.
See notes to § 149.
As to inventory of state property, see §§ 310 et seq.
The Governor has no right to contract away the State's
property at his pleasure of discretion. It is his duty to
protect the property of the State, but he is not given any
authority to sell the State's property, or to contract with
reference thereto. Western Union Tel. Co. v. Western
& Atl. R. Co., 142 Ga. 532, 534, 83 S. E- 135.
§ 147. (§ 124.) Insure certain property. — The
Governor shall keep insured, at one half their
value, all of the public buildings of the State and
library, except the State arsenals at Milledgeville
and Savannah, the penitentiary at Milledgeville,
and the buildings of the Western and Atlantic
Railroad. Acts 1882-3, p. 26.
§ 148. (§ 125.) Draw warrant to pay prem-
ium.— He is authorized to draw his warrant upon
the treasury annually for the sum of five thousand
dollars, or for so much as may be necessary to
carry into effect the foregoing section. Acts 1882-
3, p. 26.
§ 149. (§ 126.) May sue for dues to the State.
— Whenever the Governor, after consulting with
the attorney-general, or without, if there is no
such officer, shall deem it proper to institute a suit
for the recovery of a debt due the State or money
or property belonging to the State, he is authorized
and required to institute such suit in the proper
court of this State, with the same rights as any
citizen, and to require the aid of the attorney-
general to begin and carry on such suits where
practicable, and if not, some other suitable and
competent attorney, on such terms, as to com-
pensation, as he may agree upon, but the fees
of such attorney shall be conditional. Acts 1872,
pp. 39, 40.
As to duty to defend suits, see § 23.
Presumption of Attorney's Authority. — Where a decla-
ration in favor of the State is signed by attorneys, the
legal presumption, upon demurrer, is that they had the
authority of the Governor to institute the suit. Alex-
ander v. State, 56 Ga. 478.
Money Obtained by Fraud. — The Governor has authority
to institute suit for the recovery of money of which the
State has been defrauded, under the general power granted
to him of supervising the property of the State. Alexan-
der v. State, 56 Ga. 478.
Compromise of Claims.— The Governor has no power to
compromise claims due the State penitentiary because of
negligent escapes. Penitentiary v. Gordon, 85 Ga. 159,
11 S. E- 584.
Action on Bond Made to Predecessor. — The Governor
may maintain an action or a bond made to his predecessor.
Anderson v. Brumby, 115 Ga. 644. 42 S. E. 77. For other
cases, see 6 Enc. Dig. 787.
ARTICLE 6.
Property Purchased, When.
§ 150. (§ 127.) Governor may buy property
in certain cases. — At all sheriff's sales under any
fi. fa. in favor of the State or the Governor, the
Governor may, by himself, or any one authorized
by him, purchase the property so sold: Provided,
in no case shall more be bid for such property
than the amount due the State upon such fi. fa.
Acts 1873, p. 49.
§ 151. (§ 128.) Titles, how made.— The prop-
erty so purchased shall be for the use of the
State, and the title thereto shall be made to the
Governor and his successors in office and as-
signs. Acts 1873, p. 49.
§ 152. (§ 129.) The Governor may rent or
sell the property. — The Governor may rent out
said property, or sell the same at public outcry
to the highest bidder, upon such terms as he may
[47]
§ 153
SUSPENSION OF TREASURER OR COMPTROLLER
§ 161
deem for the interests of the State, and may make
the necessary conveyances for the same: Pro-
vided, such sale shall be advertised in the same
manner and for the same time as sheriff's sales.
§ 153. (§ 130.) Removal of liens In case
there be .any exemption of any part of the prop-
erty purchased, or the proceeds thereof, or any
lien or incumbrance of superior dignity to the
lien of the State, the Governor may pay the
amount so exempted, or the said lien or incum-
brance, to the person entitled thereto.
§ 154. (§ 131.) Purchase to be reported.— The
Governor shall report to the General Assembly
at its following session, any purchase, lien, or
sale made under the foregoing provisions, giving
full particulars of the transaction.
ARTICLE 7.
Appointments and Vacancies.
§ 155. (§ 132.) Shall appoint officers and fill
vacancies. — He shall appoint all officers and fill
all vacancies, unless otherwise prescribed by the
Constitution and laws. All appointments to dis-
charge a public duty, by the General Assembly,
or by the Governor under its authority, are de-
clared to be offices within the meaning of the
Constitution.
See § 6483. See also, 6 Enc. Dig. 787.
As to vacancy in railroad commission, see § 2617. As
to filling vacancy in superior court, see § 6509. As to fill-
ing vacancy in supreme court, see §§ 4834, 6106. As to
vacancy in the office of solicitor general, see § 6530. As
to vacancy in office of commissioner of agriculture, see §
2066.
Appointment. — Under the constitution and laws, the gen-
eral power of appointment to office, appertaining to the
execution of the laws, is conferred upon the Governor of
the State, and the appointment by a judicial officer of
the persons constituting a board of registration, is the
exercise of a function belonging to the executive depart-
ment of the government. Whilst this may be true, it is
also provided that this power is not to be exercised where
it is otherwise prescribed by the constitution and laws.
Russell v. Cooley, 69 Ga. 215, 216.
Whether Office Has "Become Vacant."— When the Con-
stitution creates an office to be filled by appointment of
the Governor, it is immaterial whether the office has "be-
come vacant;" it is sufficient that a vacancy exists; since
in the former case the Governor may fill it, under the
express words of the Constitution, and in the latter case,
he may fill it under this section of the Code, which au-
thorizes him to appoint all officers and fill all vacancies,
when no other mode is provided by the Constitution and
laws. Gormley v. Taylor, 44 Ga. 76.
§ 156. (§ 133.) Mode of filling certain vacan-
cies.— In case of a vacancy from any cause in any
office, the full term of which, by the Constitution,
is to be filled by the Governor with the advice and
consent of the Senate, the Governor shall appoint
and commission some qualified person to supply
it until the next meeting of the General As-
sembly, when said vacancy shall be filled in the
manner described in the Constitution for filling
the full term of such office. All vacancies which
may hereafter occur during the session of the
General Assembly, or may then exist, shall be
filled in pursuance of the provisions of this sec-
tion. Acts 1871-2, p. 284.
§ 157. (§ 134.) May appoint and remove
secretaries and others. — He has the power of ap-
pointing the following officers, who shall hold
their offices during the time for which he is
Governor, subject to be removed at his pleasure,
viz.:
Two secretaries of the Executive Department.
A messenger for his office.
A State librarian.
A guard for the capitol buildings.
A person to keep the capitol grounds and other
State property at the seat of government in
proper order.
As to appointment of secretaries, see § 6418. As to mes-
sengers, see § 167. As to librarian, see § 172. As to guard
for capitol, see § 170.
§ 158. (§ 135.) Shall appoint officers named
in the Code. — He shall also appoint all the officers
of the following State institutions named in this
Code, and laws hereafter enacted amendatory
thereof, unless menials, servants, day-laborers, or
otherwise required:
Officers of the penitentiary.
Trustees of the Georgia State Sanitarium.
Trustees of the Asylum for the Deaf and Dumb.
Trustees of the Asylum for the Blind.
Officers of the Western and Atlantic Railroad.
Keepers of the arsenal and public arms.
Under this section trustees of the Asylum for the Deaf
and Dumb are officers of the State. Money in their hands
belongs to the State and is not subject to attachment or
garnishment. O'Neill v. Sewell, 85 Ga. 481, 11 S. E. 831.
§ 159. (§ 136.) May employ agents. — And he
has power to engage the services of any compe-
tent person for the discharge of any duty required
by the laws, and essential to the interests of the
State, or necessary, in an emergency, to preserve
the property or funds of the State.
As to employment of attorneys, see §§ 149, 2350 and
notes thereto.
ARTICLE 8.
Suspension of Treasurer or Comptroller.
§ 160. (§ 137.) Governor may suspend treas-
urer or comptroller. — Whenever the Governor has
trustworthy information that the State treasurer
or comptroller-general is insane, or has absconded,
or grossly neglects his duties, or is guilty of con-
duct plainly violative of his duties, or demeans
himself in office to the hazard of the public funds
or credit of the State, the Governor shall suspend
said treasurer, or comptroller-general, as the case
may be, and report his reasons for such suspen-
sion to the General Assembly. Said suspension
shall continue until the General Assembly shall
otherwise direct. Acts 1878-9, p. 30.
See § 222.
As to examination of treasurer and comptroller-general,
see § 6487. As to suspension by the general assembly,
see § 347.
§ 161. (§ 138.) Officers pro tern, in cases of
such suspension. — Whenever the State treasurer
or comptroller-general shall be suspended, the
Governor shall appoint some suitable person to
discharge the duties of the office of treasurer, or
comptroller-general, as the case may be, until the
suspended official is restored by law, or until his
successor is elected and qualified. And the per-
son so appointed shall take the oath and give the
bond required by law of the regular incumbent.
Acts 1878-9, p. 30.
[48]
§ 162
GOVERNOR'S MESSAGE, AND STATE-HOUSE GUARD
§ 161
ARTICLE 9.
Collection of Taxes, When Suspended.
§ 162. (§ 139.) May suspend collection of
taxes. — The Governor may suspend the collection
of the taxes, or any part thereof, due the State,
until the meeting of the next General Assembly,
but no longer; nor shall he otherwise interfere
with the collection thereof. Act 1821, Cobb, 1025.
See § 1189.
Extent of Power. — This section does not confer upon the
Governor the power to compromise or release a corporation
from an ad valorem tax he can do no more than suspend
the tax until the meeting of the next general assembly.
State v. Southwestern Railroad, 70 Ga. 11, 23.
ARTICLE 10.
Warrants on Treasury.
§ 163. (§ 140.) Payments from the treasury. —
All payments from the treasury, unless otherwise
provided, shall be made upon the warrant of the
Governor, and he may withhold his approval on
any account audited and certified by the comp-
troller-general. The warrant shall always specify
on what appropriation or fund it is drawn. Act
1836, Cobb, 1028.
See § 228.
In General. — The State treasurer has no authority to
pay out any money from the State treasury until there
has been "an appropriation made by law," and then
only upon a warrant drawn by the Governor specifying
"on what appropriation or fund" it is drawn, except "for
sums due to the members and officers of" the two houses
of the General Assembly. Park v. Candler, 113 Ga. 647,
39 S. E. 89.
A warrant drawn by the Governor upon the State treas-
urer, directing the latter to place the amount of such
warrant "to the account of the school fund," is payable
out of that fund as derived from the sources authorized
by the constitution and the law; and it is not only the
right but the duty of the State treasurer to so construe
such a warrant. Park v. Candler, 113 Ga. 647, 39 S. E. 89.
Revocability of Warrant. — An executive warrant upon
the treasury of the State, authorizing the payment of
money in pursuance of an appropriation made by law, is
not a contract nor in the nature of a contract, but is only
a license or power, and is revocable so long as the pay-
ment which it warranted has not been made. Fletcher v.
Renfroe, 56 Ga. 674.
If revocation cannot take place by the separate act of
the' Governor, it can take place by the joint act of the
Governor and the general assembly; and a resolution
passed by both houses and approved by the Governor, in-
structing the treasurer not to pay a warrant, is a vir-
tual revocation. Fletcher v. Renfroe, 56 Ga. 674.
ARTICLE 11.
Records to be Kept in Executive Office.
§ 164. (§ 141.) Shall cause to be kept a jour-
nal of his official acts. — The Governor shall cause
to be kept and preserved in the Executive office the
following books of record:
1. Journal. A journal or minute-book, showing all
of his official acts.
2. Appropriation book. A book of appropriations,
in which shall be entered a full account of all annual
appropriations, setting forth the amounts under
their appropriate heads, together with the date of
his warrant for such appropriation, and in whose
favor drawn.
3. Public debt. A book giving a statement of the
public debt of the State, the dates and numbers of
the bonds issued, in whose favor, and for what
amounts, the date of payment and the disposition
thereof; also, a full and accurate account of all sums
[
of money that are set apart as a sinking fund for the
redemption of the public debt, particularly setting
forth the amount for the several specific purposes,
when drawn, and in whose favor drawn.
4. Bonds of officers. A book in which shall be
kept copies of all bonds of agents disbursing public
funds; also, a schedule of all bonds and other evi-
dences of debt due to the State, and the disposition
made thereof.
5. Commissions. A book of commissions, show-
ing the dates when issued, for all officers, civil and
military, in this State.
6. Educational fund. A book showing the exact
condition of the educational fund of this State, and
the annual income thereof.
7. Land books. A book or books containing a list
of the respective numbers, districts, sections, and
counties of the several lots of land disposed of by
the several land lotteries, and the names of the
drawers of each, to whom and when granted, and a
similar schedule of all lands sold by the State, by
whom purchased, and to whom and when granted.
8. All documents to be filed. He shall also keep,
and cause to be carefully filed away, properly
marked or numbered, all documents appertaining to
his office, whether there as the place of deposit or
received by mail or express, and keep a book as an
index or key to the same.
9. Other records. And any other books or files
that, in his judgment, his department needs.
ARTICLE 12.
Executive Seal.
§ 165. (§ 142.) Executive seal.— There shall
be a seal of the Executive Department. The device
shall be the same as that now used therein, and
shall not be altered except by authority of the
General Assembly.
ARTICLE 13.
The Executive Office and Residence of the
Governor.
§ 166. (§ 143.) Executive office and residence.
— The Executive office shall be in the State-hous<-
at the seat of government. If from any cause there
is no State-house, or it has to be abandoned, then at
such place at the seat of government as the Gover-
nor may direct, and not elsewhere, unless made
necessary from invasion, insurrection, pestilence, or
rebellion. The Governor shall reside at the seat oi
government during his term of office.
As to necessity for Governor residing at designated
place, see § 261.
ARTICLE 14.
Governor's Messenger, and State-house Guard.
§ 167. (§ 144.) May appoint messenger. — Tin-
Governor may in his discretion, as the exigence-
may require, appoint a messenger to the Execu-
tive Department, or have that duty performed by
some other employee about the State-house, en-
gaged by him under the general authority granted
to him, and when so performed it must he done
without additional compensation.
See § 157.
40 1
§ 168
CATALOGUE; ANNUAL REPORTS FILED WITH LIBRARIAN
§ 180
§ 168. (§ 145.) Duties of messenger. — When
there is a messenger, he shall perform such duties
for the Executive office, the other officers in the
State-house, and such other service connected
with the State business at the capitol as the
Governor shall prescribe, and be governed by
such rules and regulations as he may adopt.
§ 169. (§ 146.) If there is no messenger —
Where there is no messenger, the Governor may,
if occasion should require, employ some person
to perform any special service, for a reasonable
compensation, such as is the duty of the messen-
ger to perform, but which cannot be performed
by the person acting as such.
§ 170. (§ 147.) Guard of capitol.— The Gov-
ernor shall appoint a guard for the capitol build-
ings, including the captain of the guard, whom
he shall designate as such, whose business it shall
be to remain in said buildings from sundown until
sunrise of the next day, every night in the year,
and on Sundays and holidays, to keep watch over
the same and protect them from fire or intruders.
See § 157.
§ 171. (§ 148.) Governor's power over guard.
— The Governor has power to keep the number
of said guard full, when lessened by providential
or other cause, and adopt such rules and regula-
tions in regard to them as in his judgment the
public service may demand.
ARTICLE 15.
Of the State Librarian, and Distribution of Laws.
For full treatment, see 8 Cum. Dig. 180.
SECTION l.
Librarian and His Duties. Salaries of
Assistants.
§ 172. (§ 149.) State librarian, his appoint-
ment and term. — The Governor shall present, for
confirmation by the Senate, some fit and compe-
tent person to serve as State librarian, whose
term of office shall be four years, and until his
successor shall have been chosen and confirmed
in like manner. Acts 1880-1, p. 69.
For act making females eligible for the office, see §
2167.
§ 173. (§ 150.) Salary of librarian and assis-
tant.— The salary of the State librarian shall be
eighteen hundred dollars per annum, and the
salary of the assistant librarian fifteen hundred
dollars per annum. Acts 1889, -p. 153; 1904, p.
50; 1918, p. 108.
Editor's Note. — By the Acts of 1847, embodied in Cobb's
digest at p. 1036, the salary of the librarian was only one
hundred dollars per annum. The section, in its present
form was- enacted in 1889 (Acts of 1889, p. 153). By the
Acts of 1904, p. 50, the salary of the assistant was in-
creased from eight to twelve hundred dollars, and by the
Acts of 1918, p. 108 to fifteen hundred dollars.
§ 174. Second assistant librarian. — The libra-
rian is authorized to emplojr a second assistant
librarian, and the compensation of said second as-
sistant shall be at the rate of one thousand dollars
per annum, to be paid quarterly, as other salaries are
paid. Acts 1909, p. 143; 1912, p. 45.
§ 175. (§ 151.) Must give bond.— The libra-
rian must give a bond in the sum of two thou-
sand dollars, with good security, payable to the
Governor and his successors in office, conditioned
for the faithful performance of his duty as State
librarian. Acts 1847, Cobb, 1037.
§ 176. (§ 152.) Must keep library.— The li-
brary belonging to this State, with such addi-
tions as may be hereafter made from any quarter,
together with all copies of the laws, journals or
other books published or purchased by the State,
shall be kept in appropriate apartments at the
capitol building, designated by the Governor, un-
der such rules and regulations as he may from
time to time prescribe. Acts 1851-2, p. 17.
§ 177. (§ 153.) For inspection.— It is the
librarian's business to preserve, keep in order, and
protect said library, to keep the same open for
the inspection of all citizens of the State, and to
discharge such other duties in connection with
the library as may be required of him by law or
the Governor of the State.
SECTION 2. \
Distribution of Books.
§ 178. (§ 154.) Distribute laws, etc.— The dis-
tribution of the laws and journals, reports of the
Supreme Court decisions, laws of the United
States, and all other books required to be dis-
tributed to the several counties of the State or to
be sent to other States, shall be made by the
librarian, under the direction of the Governor,
in pursuance of the provisions of the law in re-
spect thereto. He shall mail the decisions of the
Supreme Court, as follows: One copy of each
to the judges of the Supreme and superior courts,
the clerk of the Supreme Court, the clerks of the
superior courts, and the ordinaries of this State.
The remaining copies he shall keep in the State
library for use, and for exchange, as required in
this Code. Acts 1868, p. 195.
§ 178(1). Georgia Reports, etc., for City
Court. — The State Librarian is authorized to de-
liver upon request of the clerk of any of the City
Courts of this State which sit in a court room
other than the room occupied by a Superior
Court, a copy of all Georgia Reports, Georgia Ap-
peals, Codes and Acts of the General Assembly
hereafter published by this State, the same to be
held by the clerks of said courts for the use of
said courts aforesaid. Acts 1910, p. 1287.
SECTION 3.
Catalogue; Official Annual Reports Filed with
Librarian.
§ 179. (§ 155.) Must take and file receipts,—
It is his duty to receive from the State printer
the laws and journals, and, when distribution is
made to the various counties, to take from the
clerks of courts, or other distributees, their re-
ceipts therefor; likewise all other books required
to be distributed. He must receive and take re-
ceipts on the distribution, and keep in his office
a file of such receipts.
§ 180. (§ 156.) Keep a catalogue.— He shall
make out and keep on hand a catalogue of all
[50]
§ 181
LEGISLATIVE REFERENCE DEPARTMENT
§ 189(1)
the books in the library — to be amended without
unnecessary delay from time to time, as he may
obtain new books or dispose of old ones — which
shall be printed and kept in his office in two or
more conspicuous places.
§ 181. (§ 157.) Certain reports to be filed
with librarian. — The Governor, comptroller-gen-
eral, treasurer, and all other officers who are, or
may be, required to make reports to the General
Assembly, shall furnish the State librarian with
at least ten copies each of said reports, and he
shall have the same bound and preserved in the
library for public use.
SECTION 4.
Printing and Distribution of Georgia Reports.
§ 182. (§158.) Proceeds from Supreme Court
reports. — The money arising from the sale of Su-
preme Court reports is appropriated for the
purpose of making a permanent fund for pur-
chasing and binding books for the State library.
Acts 1882-3, p. 32.
§ 183. (§ 159.) Exchange reports with other
States. — He must correspond with the proper au-
thorities of other States who publish the reports
of their highest appellate tribunal, with a view to
exchange their for our Supreme Court reports.
See § 195.
§ 184. (§ 160.) Sale of reports.— The Governor
shall ascertain the cost to the State, per volume,
of the whole edition of any given volume of the
reports published, which shall in no case be less
than one thousand copies, and notify the State
librarian of the cost per volume; and the State
librarian shall sell to the public, for cash only, the
portion of the reports allotted for that purpose,
at the actual cost to the State, and deposit each
day the money thus received into the State treas-
ury before the expiration of the business hours
of that department. Until six months from the
issuance of any volume,' the librarian shall sell
only one copy thereof to the same purchaser. Af-
ter the expiration of such period, the librarian,
under the direction of the judges of the Supreme
Court, may exchange such copies as are not likely
to be sold, for reports of the highest courts of
other States, or such other law-books as said
judges may select, and upon such terms as they
may direct. Acts 1878-9, p. 158.
§ 185. (§ 161.) Electrotyped, when.— When-
ever the librarian of the State shall report to the
Governor that there are not more than twenty-five
copies of any electrotyped volumes on hand, the
Governor shall have two hundred additional
copies struck off when the volume is reprinted
for the first time, and one hundred copies in all
subsequent reprints of said volume, and shall
draw his warrant upon the printing fund for the
expenses thus incurred. Acts 1880-1, p. 141; 1916,
p. 31.
Editor's Note. — This section and § 186, first appeared in,
the Acts of 1880-1, p. 141. At that time the section merely
provided for five hundred additional copies on all reprints.
The changes were effected by the Acts of 1916, p. 31.
§ 186. (§ 162.) Plates, how kept.— When the
first edition of each volume is printed, the printer
[
shall carefully box up the plates and turn them
over to the State librarian, who shall preserve
them for further use. Acts 1880-1, p. 141.
As to copyright, see § 1358.
§ 187. Republication of earlier Reports. — The
State librarian is authorized and directed to repub-
lish with annotations, under the same restrictions
and conditions, so far as practicable, as now re-
late to the republication of Georgia Reports, and
electrotyped copies of same, one thousand copies
each of the earlier Georgia Reports, together with
Charltons and Dudley Reports and Georgia Deci-
sions, where the copyright has expired, beginning
with Volume I and continuing consecutively, to
be paid for out of the money received by him from
the sale of Georgia Reports, together with said
Charltons and Dudley Reports and Georgia Deci-
sions; provided, that only such volumes be re-
published during any one year as may be paid for
out of the said money received during that year.
That the librarian in his discretion shall con-
tinue said publication of such Reports whenever
the copyrights may hereafter expire; provided,
that all of said Reports shall be sold at actual
cost, to the State, of publication; provided, that
said reprinted reports shall not be sold for more
than one dollar and eighty-five cents per volume.
Acts 1899, p. 83; 1901, p. 78; 1910, p. 126.
Editor's Note. — This section seems to be superseded by
§ 16 of the Acts of 1920, p. 241, which is here codified as
§ 1362 (16).
SECTION 5.
Supervision and Removal of Librarian by
Governor.
§ 188. (§ 163.) His office subject to Gover-
nor's supervision. — His office is under the gen-
eral supervision of the Governor, who may at any
time appoint a competent person to examine into
and report its condition to him.
§ 189. (§ 164.) Must deliver contents of office
to successor. — If the librarian resign, or be re-
moved, he must, within ten days thereafter, de-
liver the books, papers, and other contents of his
office to his successor, taking his receipt there-
for, which must be filed and recorded in the Exe-
cutive office; and if there is any deficiency in the
books received by him, or other damage done,
the Governor shall have suit brought on his bond.
See § 304.
SECTION 6.
Legislative Reference Department.
§ 189(1). Establishment for legislative refer-
ence.— There shall be established and conducted
in connection with the State Library under the
direction of the State Librarian, a Legislative
Reference Department. The object of said de-
partment shall be to gather and to make avail-
able such information as shall aid the members
of the Legislature and the several State depart-
ments in the discharge of their duties and to serve
such other citizens as may desire to consult same.
| Said department shall collect, arrange, classify
! and index books, pamphlets and other material
; relating to legislation; shall prepare abstracts of
51]
§ 189(2)
RESERVED COPIES
§ 199
laws of other States and countries, and shall make
such indexes of the legislative and administrative
records of this State, both current and past, as
to make access and reference thereto easy and
sure. Acts 1914, p. 137.
§ 189(2). Second assistant librarian in charge.
Salary. — To carry out the provisions of this Act
the State Librarian be hereby authorized and em-
powered to designate the second assistant librarian,
who shall be known as Legislative Reference Li-
brarian, to have charge of the work of said de-
partment, and to perform such other duties in
connection with the general work of the State
Library as the State Librarian may direct. The
salary of said assistant shall be $200 per year,
payable quarterly, in addition to the $1,000 per
year now provided for the second assistant
librarian. Acts 1914, p. 137.
§ 189(3). Limit of expense. — The State Libra-
rian shall be empowered to incur such expenses
in addition to salary as may be necessary in the
proper administration of the department for extra
clerk hire and supplies, not exceeding $1,000 an-
nually. Acts 1914, p. 137.
ARTICLE 16.
Printing and Distribution of Laws and Other
Documents.
SECTION 1.
Distribution of Laws and Journals to County
Officers.
§ 190. (§ 165.) Laws and journals to be dis-
tributed.— After the laws and journals are com-
piled, printed, bound, and delivered to the State
Librarian, he shall, under the supervision of the
Governor, cause them to be distributed to the
several counties of this State.
§ 191. (§ 166.) Number of journals printed. —
There shall be compiled, printed and bound (such
binding to be the same as that of the Acts of the
General Assembly) not more than five hundred
copies of the journals of each branch of the Gen-
eral Assembly; and it shall be the duty of the
State librarian to distribute the same as follows:
One copy of the journal of each branch of the
General Assembly to the ordinary of each county
in this State, whose duty it shall be to keep and
preserve the same for the use of the public, and
also one copy to each member of the General As-
sembly. The remainder of the copies shall be re-
tained by the librarian for exchanging with the
various States, and for such other use and dispo-
sition as the Governor of the State may authorize
and direct. The librarian shall always keep on
hand, for the use of the library, at least ninety-five
copies of such journals. Acts 1889, p. 181; 1861,
p. 75; 1884-5, p. 134.
§ 192. (§ 167.) Copies of laws for each
county. — Each county is entitled to one copy of
the Acts of the General Assembly for each civil
officer, both judicial and ministerial, to be dis-
tributed by the ordinary. Acts 1861, p. 75.
§ 193. (§ 168.) Copies of journals for each
county.— The copy of the journals of each branch
of the General Assembly shall remain on deposit
in the office of the ordinary, and to which the citi-
zens of the county shall have free access; each
county is also entitled to a copy of the laws and
journals for each member of the General Assem-
bly. Acts 1889, p. 181.
§ 194. (§ 169.) Journals to be bound.— One
copjr of the journal of each branch of the General
Assembly, as well bound as the Acts, shall be
securely kept, and not permitted to go out of the
ordinary's office.
SECTION 2.
Librarian as Exchange Officer.
§ 195. Librarian as exchange officer. — The State
librarian shall be the exchange officer of Georgia
for the purpose of a regular systematic exchange be-
tween this and other States of public documents,
and the several State departments and institutions
are required to deposit with said officer for said pur-
pose at least sixty-five copies of each of their reports
and bulletins. Acts 1909, p. 141.
See § 183.
§ 196. State institutions, public libraries and
public schools supplied. — .Such of the State institu-
tions, public libraries and public schools of Georgia,
and other institutions of learning, as maintain
libraries and desire to receive them, shall ;be sup-
plied free of charge by the State librarian with
Colonial, Revolutionary, and Confederate records,
and public documents. Acts 1916, p. 133.
Editor's Note. — This section was amended by the Acts
of 1916, p. 133, which added the words public libraries, ap-
pearing in the first sentence.
§ 197. Price for shipments. — Fifty per cent, of
the net price shall be added to the price of report's,
laws, and records, where they are shipped outside of
the State, to cover transportation charges in the
United States.
§ 198. Worn-out copies. — Worn-out copies of
Georgia State publications shall be rebound, sold
at second-hand price, or discarded at the discretion
of the librarian.
SECTION 3.
Reserved Copies.
§ 199. Reserved copies. — Fifty copies each of
Acts and House and Senate journals shall be re-
served by the librarian for three years, from which
time twenty-five copies only need be reserved;
remaining copies of journals as well as laws, after
the distribution elsewhere provided is effected,
shall be held for sale to the people of this State,
any citizen thereof having the right to buy one
copy at the actual cost thereof; and said librarian,
upon being so requested, shall send by mail to any
such citizen a copy of said laws upon prepayment
of the postage thereon and the price. And the
librarian at the end of every six months shall pay
all moneys received from the sale of said laws to
the State treasurer, taking his receipt therefor,
and, immediately after such payment, report to
the Governor in writing the number of copies
sold, and when and to whom, and the sum so paid
[52 1
§ 200
ELECTION, BOND, AND COMPENSATION
§ 208
to the treasurer, with the date of such payment.
Acts 1878-9, p. 179; 1909, 141.
SECTION 4.
Acts of Congress, How Distributed.
§ 200. (§ 171.) Acts of Congress, etc., how for-
warded. — Each county is entitled to two copies
of the Acts of Congress to be kept in the office as
the journals are. The librarian, under the super-
vision of the Governor, as soon as the laws and
journals of each session are published, shall for-
ward by express, prepaid to the nearest office of
each ordinary in the State, the number of the laws
and journals each county may be entitled to: Pro-
vided, when the ordinary of any county shall be at
any actual and necessary expense in getting the
books from the express office, he shall give an
order on the county treasurer for said sum, and
the county treasurer shall pay the same. And the
librarian, as soon as he shall have expressed said
laws and journals shall notify each ordinary
thereof by mail, and also notify him of the office
to which said laws and journals have been sent.
Acts 1874, p. 25.
SECTION 5.
Books Furnished University of Georgia and
Georgia School of Technology.
§ 201. (§ 172.) Books furnished University of
Georgia. — Volumes of the Supreme Court reports,
and such other public books as are furnished by
the State to the several counties, shall be furnished
to the University of Georgia. Acts 1884-5, p. 139.
See §§ 195, 196.
§ 201(1). Books furnished Georgia School of
Technology. — The State Librarian shall supply,
free of charge, to the Georgia School of Techno-
logy volumes of such reports and such other
public books as are furnished by the State to the
several counties and to the University of Georgia.
Acts 1919, p. 369.
ber 21st, 1883. In no event shall any books be
furnished to supply the place of books that have
been lost or destroyed other than by the soldiers of
either army or destroyed by fire. Acts 1882-3,
p. 24.
§ 204. (§ 175.) Governor to draw warrant. —
Whenever the Governor shall decide that any
county is entitled to be supplied with any num-
ber of Supreme Court reports, he shall draw his
warrant upon the treasurer for the amount re-
quired for the same: Provided, that not jmore than
two hundred and fifty dollars shall be drawn to
supply reports to any one county. Acts 1882-3,
p. 24.
CHAPTER 2.
The Secretary of State, Treasurer, Comptroller-
General, and Attorney-General.
ARTICLE l.
Of the Secretary of State.
See 10 Enc. Dig. 703.
SECTION 6.
Counties, How Supplied with Georgia Reports.
§ 202. (§ 173.) Librarian to supply county with
certain reports. — Whenever the Governor shall
have satisfactory evidence that the Supreme Court
reports, or any of them, have never been furnished
by the State to any county of this State, it shall
be his duty to cause the librarian to furnish such
county with such volumes as have not been fur-
nished with the same. Acts 1882-3, p. 24.
See § 178.
§ 203. (§ 174.) Librarian to furnish reports
destroyed. — Whenever the ordinary of any county
shall furnish the Governor with satisfactory evi-
dence that the Supreme Court reports furnished
by the State to such county, or any part of such
reports, have been destroyed by fire or by the
soldiers of either army during the war, it shall be
the duty of the Governor to cause the librarian tc
furnish one copy of each report so destroyed to
the clerk of the superior court of such county: Pro-
vided, no reports shall be furnished to supply the
place of such as may be destroyed after Septem-
[ 53
SECTION 1.
Election, Bond, and Compensation.
§ 205. (§ 176.) Secretary of State, his election
and term. — There shall be a secretary of State,
elected by persons qualified to vote for members
of the General Assembly, at the same time and
in the same manner as the Governor.
See § 6489. As to disqualification of secretary, see §
2262. As to qualifications, see § 6494.
Editor's Note. — The returns for the election of the sec-
retary of State as provided in this section are made under
the provisions of par. 10, of § 82. Now the Act of 1918,
codified as § 120 (1), in providing for the returns of such
election supersedes this law, but is very similar to it.
§ 206. (§ 177.) Must give bond.— Before en-
tering on the duties of his office, he shall execute
a bond with sufficient securities, to be approved
by the Governor, in the sum of ten thousand dol-
lars, conditioned for the faithful performance of
all duties of his said office, and all such duties as
shall be required of him by the General Assembly
or the laws of this State, and for a faithful ac-
count of all the public money or effects that may
come into his hands during his continuance in of-
fice. It shall be filed in the Executive office, and
a copy thereof, certified by one of the Governor's
secretaries, under the seal of the Executive De-
partment, shall be received in evidence in lieu of
the original in any of the courts of this State. Act
1843, Cobb, 1034."
As to time of filing bond, see § 285.
§ 207. (§ 178.) Shall keep his office in the
capitol. — He shall be provided with suitable apart-
ments in the State capitol, furnished at the State's
expense. He shall reside at the capitol, and keep
his office open daily, Sundays and holidays ex-
cepted. Acts 1861, p. 72.
As to necessity of residing at place designated, see ?
261. As to Governor's duty to provide office, see § 146.
§ 208. (§ 179.) Shall furnish copies of records.
— He shall furnish to all applicants, upon the pay-
ment of the prescribed fees, copies of all records
and public documents within his office, and shall
attach the great seal of the State to such tran-
§ 209
GREAT SEAL OF STATE, AND ITS CUSTODY
§ 213(1)
scripts as the Governor or General Assembly may
direct.
A copy of a record furnished under this section, is ad-
missible in any court if it throws light on the case. Fer-
rell v. Hurst, 68 Ga. 132.
§ 209. (§ 180.) Shall have no perquisites. —
He shall receive no perquisites for any official
act, but the fees prescribed shall be collected by
him and paid into the State treasury. Act 1826,
Cobb, 1027.
As to compensation of secretary, see § 2233.
on speculation, on pain of removal by the Gover-
nor or the General Assembly.
For identical provision prohibiting the comptroller-gen-
eral, see § 240.
§ 212. (§ 183.) Quadrennial destruction of
election returns. — The secretary of State shall
destroy, quadrennially, all returns of elections,
on file in his office, of those officials whose terms
of office have expired. Acts 1878-9, p. 434.
SECTION 2.
Duties of Secretary of State.
§ 210. (§ 181.) Duty of secretary of State.—
The offices of secretary of State and surveyor-
general are consolidated, and the secretary of
State is required to discharge the duties of both of
said offices.
1. Care of seal and records. — It is his duty to
keep the original Acts passed by the General As-
sembly, and all the public records of the State not
appertaining specially to other offices. He shall
look to and preserve the records and papers be-
longing to the Senate and House of Representa-
tives. He shall see that the original journals of
both houses are deposited in and kept in his office.
2. Affixing great seal. He shall attest all
grants, and other public documents requiring the
great seal of the State, issuing from the Executive
of the State.
3. Record of grants. He shall keep a record in
proper books of all grants issued by the State.
4. Care of bonds of agents. He shall keep safely
all bonds of agents appointed to disburse public
money.
5. Stationery, etc., for use of General Assembly.
He shall provide all fuel, lights, servants, or other
contingents necessary for the General Assembly;
also, all stationery for their use, and shall report
the amount of the same to the finance committee
of the House of Representatives before the ad-
journment of the session. He shall perform all
other duties required of him by law, or which
necessarily attach to his office.
6. Election-blanks. — At least thirty days pre-
vious to the day of election of Governor, members
of the General Assembly, representatives to Con-
gress, electors of President and Vice-President of
the United States, and county officers, he shall
furnish each ordinary of the State with printed
forms of returns, certificates, and directions, to-
gether with any advice he may deem necessary
to secure proper returns; and he shall provide
and keep on hand a sufficient quantity of self-seal-
ing envelopes of uniform appearance and suitable
size and quality for use in the elections afore-
said. Act 1838, Cobb, 1030; Acts 1865-6, p. 249;
1861, p. 72; Acts 1873, p. 26.
See § 214. As to care of various papers, see §§ 350, 501,
2230. As to secretary as corporation commissioner, see §
2208. As to duty to have census taken, see § 909.
§ 211. (§ 182.) Shall not speculate in wild lands.
— He shall not, directly or indirectly, be interested
or engaged in the purchase and sale of wild lands
[
SECTION 3.
Great Seal of the State, and Its Custody.
213. (§ 184.) Great seal to be kept in his of-
fice.— He shall keep the great seal of the State
adopted Eebruary 8th, 1799, and now on deposit
in the office of the secretary of State. It is as
follows:
1. It is of silver, and the size of two and a
quarter inches in diameter.
2. The device on one side is, a view of the sea-
shore, with a ship bearing the flag of the United
States riding at anchor near a wharf, receiving on
board hogeheads of tobacco and bales of cotton,
emblematic of the exports of this State; at a small
distance a boat, landing from the interior of the
State, with hogsheads, etc., on board, representing
her internal traffic; in the back part of the same
side a man in the act of plowing, and at a small
distance a flock of sheep in different pastures,
shaded by a flourishing tree; the motto thereon,
"Agriculture and Commerce, 1799."
3. The device on the other side is, three pillars,
supporting an arch, with the word "Constitution"
engraven within the same, emblematic of the
Constitution, supported by the three departments
of government, viz., the legislative, judicial,
and executive — the first pillar having engraven
on it "Wisdom," on the second "Justice," the
third "Moderation;" on the right of the last pil-
lar a man standing with a drawn sword, repre-
senting the aid of the military in the defense of
the Constitution; the motto, "State of Georgia,
1799."
See § 6496. As to what officers commissioned under the
great seal, see § 262. As to use of seal on State bonds, see
§ 1263.
§ 213(1) New great seal, Old seal to be de-
stroyed.— The Governor and the Secretary of
State are hereby authorized, empowered and di-
rected to cause a new great seal of the State to
be made, either of silver, or of some harder and
more durable mental or composition of metals,
the new seal to be in all respects a facsimile of
the old one, except that the date appearing there-
on shall be 1776, commemorative of the year of
the Declaration of American Independence, in-
stead of 1799, as appears on the present seal. When
the new great seal herein provided for shall be
completed and received by the Secretary of State,
it shall be used in place of the present great seal
in all cases where the use of the great seal of
the State is required; and it shall be the duty of
the Governor and the Secretary of State to see
to it that the present great seal is destroyed. Acts
1914, p. 1247.
54]
§ 214
APPROVAL, LIEN, AND RECORD OF TREASURER'S BOND
§ 218
SECTION 4.
Duties of Surveyor- General Imposed on Secre-
tary of State.
§ 214. (§ 185.) Duties heretofore devolving
on the surveyor-general. — The secretary of State
shall also discharge the following duties, hereto-
fore devolving on the surveyor-general, to wit:
1. Care of plats. To keep safely all the records
of plats of land granted, and to report the con-
dition of such records to the Governor at least
once a year.
2. Record of plates. To record all plats of land
legally authenticated and returned to him by the
several county surveyors, or other surveyors
acting by authority, for which grants are sought,
and to attach the originals thereof to the grants.
3. Maps of surveys, etc. To keep in his office
correct maps of all the different surveys (made
by State authority), and of those comprising the
land lotteries, their divisions into numbers, dis-
tricts, sections, and the like, having for every
district a separate map.
4. Register of grants. To keep a register of the
various grantees thereto, and the dates of the
grants.
5. Maps of rivers, surveys, etc. To keep cor-
rect maps of all surveys of rivers, harbors,
swamps, or land, made by the special direction
of the General Assembly.
6. New maps. He shall, when necessary, con-
tract for the execution of new maps, or the re-
execution of, or repair of, old maps, subject to
the ratification of the General Assembly.
7. Certificates. He must certify under his of-
ficial seal, as the comptroller-general is directed.
Act 1783, Cobb, 665.
See §§ 475, 482.
The duties of the surveyor -general were first declared
in the Acts of 1873, and embodied in Cobb's digest, p. 665.
These duties, now, by § 210, devolve upon the secretary of
State.— Ed. Note.
ARTICLE 2.
Of the State Treasurer.
For full treatment, see 10 Enc. Dig. 704.
SECTION 1.
Election and Rights.
§ 215. (§ 186.) Election and term of office.—
There shall 'be a treasurer of the State, who shall
be elected at the same time and in the same man-
ner with the Governor. He shall hold his office
for two years, and until his successor is elected
and qualified. His salary shall be forty-eight
hundred dollars per annum. Acts 1919, p. 73.
See § 6490.
As to salary of treasurer as bank examiner, see § 2280.
Editor's Note. — This section was amended by the Acts
of 1919, p. 73, which increased the salary of the treasurer
from two thousand to forty-eight hundred dollars per
annum.
§ 216. (■§ 187.) His rights and duties. — His
rights and duties are the same as those of the
secretary of State, set forth in section 207 and 208,
except the use of the great seal. He shall receive
no perquisites for any official act, but the fees pre-
scribed shall be collected by him and paid into the
State treasury. Act 1826, Cobb, 1027.
SECTION 2.
Approval, Lien, and Record of Treasurer's Bond.
§ 217. (§ 188.) Treasurer's oath and bond.—
Before entering on the duties of his office, the
State treasurer shall take an oath before the Gov-
ernor, or one of the judges of the Supreme or su-
perior courts of this State, to support the Consti-
tution of the United States, and the Constitution
of the State of Georgia, and faithfully to execute
the duties of his office, which oath shall be in writ-
ing, and subscribed to by the State treasurer, and
filed and recorded in the Executive office. He shall
also give bond to the State of Georgia, with secu-
rity or securities, approved by the Governor, in the
sum of two hundred thousand dollars, conditioned
as follows:
1. That he will faithfully discharge, execute,
and perform all and singular the duties of him re-
quired, and which may be required by the Consti-
tution and laws.
2. That he will faithfully account for and pay
over all moneys that may be received by him from
time to time, by virtue of his office.
3. That he will safely deliver to his successor all
books, moneys, vouchers, accounts, and effects
whatsoever belonging to his said office. Acts 1876,
p. 126.
As to time of filing bond, see § 285. As to bond and
oath in capacity of State bank examiner, see § 2281.
A bond unsigned by the treasurer did not meet the re-
quirements of this section. Mayo v. Renfroe, 66 Ga. 408.
§ 217(1). Bond in bonding company. Prem-
ium paid by State. — The Treasurer of the State
shall be required to give bond in the sum of $200,-
000.00 in the same bond company approved by
the Governor, the annual premium on said bond to
be paid from the State Treasury. Acts 1919, p.
383.
§ 218. (§ 189.) Securities on bond; bond a
lien. — Each security on the bond of the treasurer
shall make oath that he is bona fide worth, over
and above his debts, exemptions and liabilities
of all kind, property in realty and personalty not
less than some specified sum to be stated in said
oath, which oath shall be attached to said bond,
and recorded therewith. He may, by express
stipulation in writing, limit his liability to a
specific sum to be stated in said bond; and. all the
property of the treasurer to the full amount of
said bond, and the property of the securities to
the amount for which they may be severally
bound, shall be liable for the faithful performance
'by the treasurer of the duties of his office, from
the date of the execution of said bond; and a
lien is hereby created in favor of the State upon
the property of the treasurer to the amount of
said bond, and upon the property of the securities
upon his said bond to the amount for which they
may be severally liable, from the date of the exe-
cution thereof. Acts 1876, p. 127.
As to sureties on official bonds in general, see §§ 278
et esq.
The bond of a State depository is enforced in the same
manner as the treasurer's bond under this section, see
Colquitt v. Simpson, 72 Ga. 501, 511. See also, § 1252.
Where there was no affidavit of the sureties as to what
[55]
§ 219
EXECUTION AGAINST SECURITIES
§ 224
they were worth attached to the bond, there cannot be
said to be a statutory bond in accordance with this sec-
tion. ., Mayo v. Renfroe, 66 Ga. 408.
The requirement of the oath is not merely directory, but
is of primary consequence to the State, and secondarily
to the sureties, Mayo v. Renfroe, 66 Ga. 408. Therefore,
a surety might claim his discharge, unless estopped by
his own conduct, when the other sureties had not been
sworn. Mayo v. Renfroe, 66 Ga. 408. This case is cited
and distinguished in Colquitt v. Simpson, 72 Ga. 501.
§ 219. (§ 190.) Governor's approval of bond.
— The Governor shall not approve any bond of
the treasurer unless the sums so sworn to, and
the specific sums in which the security or securi-
ties have limited their liability, shall in the ag-
gregate, at least, equal two hundred thousand dol-
lars, and he shall be satisfied of the responsi-
bility of each security. Acts 1876, p. 127.
§ 220. (§ 191.) Record of bond.— The bond
of the treasurer, when duly executed and ap-
proved, shall be recorded in the secretary of
State's office, and filed in the Executive office, and
a copy thereof, certified by one of the Govern-
or's secretaries, under the seal of the Executive
Department, or a certified copy taken from the
records of the secretary of State's office, shall be
received in evidence in lieu of the original, in any
of the courts of this State. Acts 1876, p. 127.
SECTION 3.
New Bond Required, When.
§ 221. (§ 192.) Insufficiency of security. —
The Governor, at all times when, in his opinion,
the security or securities of any treasurer have
or are likely to 'become invalid or insufficient,
shall demand and require such treasurer forth-
with to renew his bond to the State of Georgia, in
the penalty and according to the form prescribed
in this Article; and in case of neglect or refusal
by any treasurer to give bond, with security or
securities, within ten days after the same shall
be demanded and required by the Governor,
such neglect or refusal shall be a disqualifica-
tion under the law, and shall create a vacancy in
said office of treasurer; and the Governor shall
proceed forthwith to appoint a fit and proper per-
son to fill the vacancy occasioned thereby, until
the next session of the General Assembly there-
after; and such appointee shall give like bond
and security and in the same manner, and upon
the same terms as prescribed for the treasurer.
Acts 1876, p. 127.
SECTION 4.
Suspension of Treasurer.
§ 222. (§ 193.) Suspension of treasurer. —
Upon representation made to the Governor by
any person under oath, or where the Governor
has received reliable information from any
source, that the treasurer is insane, or manifestly
insolvent, or that he has absconded or concealed
himself, or is guilty of conduct which is to the
hazard of the public treasury, he shall call a
council to be composed of the attorney-general,
secretary of State, and comptroller-general, and if
they, or a majority of them, after an examina-
tion into the truth of such representation, shall
find the same to be true, the Governor shall sus-
pend the treasurer from office until the next
session of the General Assembly and issue pro-
clamation thereof, and he shall submit to said
body his action in the premises and the reasons
therefor. In the event of a suspension of the
treasurer, the Governor shall appoint some fit
and proper person to discharge the duties of
said office during the period of such suspension,
who shall take an oath and give bond and se-
curity upon like terms and in the same manner
as provided for the treasurer elected by the
people. Acts 1876, p. 127.
See §§ 160, 347, 6487.
§ 223. (§ 194.) The Governor to exercise gen-
eral superintendency over. — The Governor may
exercise a general superintendence over the
office of State treasurer, not inconsistent with
the provisions prescribed for it by law, and may
at any time appoint some competent person to
examine into the state of such office, for any period
of time he may designate, and report its condition
to him;, and shall have power to require, in
writing, of such treasurer, to withdraw the public
funds from any place of deposit deemed unsafe
by him. Acts 1876, p. 128.
SECTION 5.
Execution Against Securities.
§ 224. (§ 195.) Failing to perform duties; fi.
fa. instanter. — If the treasurer fails to perform
the duties of his office, misapplies or uses the
funds of the State, fails to account for and pay over
any moneys that he may have received by vir-
tue of his office, whereby he becomes liable -to
the State, it shall not be necessary to sue on his
official 'bond, but the Governor may issue a fi.
fa. instanter against the treasurer and his se-
curities for the amount due the State by the
treasurer, with the penalties and costs; said fi.
fa. to be directed to all and singular the sheriffs
of said State, and shall be executed by them; and
the treasurer and his securities shall have only
those defenses now allowed tax-collectors against
fi. fas. issued by the comptroller-general against
them. Acts 1876, p. 132.
See 5 Enc. Dig. 716.
Resolution of Assembly Fixing Liability. — A resolution
of the general assembly fixing the treasurer's amount of
liability is unconstitutional. Mayo v. Renfroe, 66 Ga. 408.
Application to Section 298. — The summary remedy of this
section was not in the contemplation of the legislature
when they enacted § 298, declaring what bonds valid
though not in conformity with the law. Consequently, this
remedy has no application to § 298. Mayo v. Renfroe, 66
Ga. 408.
The use of the words "those defences" in this section,
does, not apply to an appeal to the Governor but to those
allowed to tax collectors and taxpayers under the prohi-
bition of judicial interference. For example, (1) an un-
constitutional exaction, (2) where the law does not im-
pose or authorize the tax, (3) where the defendants do not
occupy the official positions alleged. Mayo v. Renfroe, 66
Ga. 408.
What Money Received by Virtue of Office. — Where the
State treasurer had received money for the use of funds
of the State deposited by him, without the approval of
the Governor, and without any contract having been made
for the use of such funds, there was no right of recov-
ery against the treasurer and the sureties on his official
bond for money so made. Money so made or received
did not come into the hands of the treasurer by virtue of
his office, as money received by virtue of office is money
received under the law of his office, and not in violation
thereof. Renfroe v. Colquitt, 74 Ga. 618.
The bond of a State depository is enforced in the same
manner as the treasurer's bond under this section, Col-
quitt v. Simpson, 72 Ga. 50.1, 511. See also, § 1252.
[ 56
§ 225
DUTIES OF TREASURER
§ 228
SECTION 6.
Resignation or Default of Treasurer.
§ 225. (§ 196.) Treasurer resigning or remov-
ing.— If the treasurer resign or is removed, he
must, within ten days thereafter, state his ac-
counts to the comptroller-general, and deliver
the books, papers, and money of the treasury
to his sucessor, taking his receipt therefor; and
the comptroller-general must record a state-
ment of such settlement and receipt in his of-
fice, and report the same forthwith to the Govern-
or. Acts 1876 p. 128.
§ 226. (§ 197.) Treasurer in default or absent-
ing himself. — If the treasurer fail to comply
with the provisions of the preceding section, or
if he dies, absconds, or absents himself with-
out sufficient cause for as long as twenty day's,
the comptroller, after giving ten days' notice by
publication in some public gazette at the seat of
government, must proceed, and in the presence
of any person who may appear in behalf of the
late State treasurer, or, if none appear, in the
presence of the attorney-general, to state his ac-
count and. deliver the books, papers, money, and
all other appurtenances of his office to his suc-
cessor, taking his receipt therefor, and record
and file such statement and receipt in his of-
fice, and report forthwith to the Governor.
Acts 1876, p. 128.
SECTION 7.
Office, Fees, and Clerk; Assistant Treasurer.
§ 227. (§ 198.) Office, where kept; clerk.—
He shall be provided with suitable apartments in
the State capitol, furnished at the State's ex-
pense. He shall reside at the capital, and keep
his office open daily (Sundays and holidays ex-
cepted), and he shall furnish to all. applicants,
upon the payment of the prescribed fees, copies
of all records and public documents within his of-
fice. He shall receive no perquisites for any
official act, but the fees prescribed shall be col-
lected by him and paid into the State treasury.
He may employ a suitable person as clerk to as-
sist him in the duties of his office, and remove
him at his pleasure; and such clerk shall receive
a salary of sixteen hundred dollars per annum.
Acts 1876, p. 128.
As to necessity of residing at designated place, see §
261. As to prohibition perquisites, see § 6495.
§ 227(1). Assistant treasurer; salary. — There
shall be an office (r) in the Treasury Depart-
ment of the State, to be styled Assistant Treas-
urer, who shall receive a salar}^ of thirty-six
hundred dollars per annum, provided that the As-
sistant Treasurer and all other clerks, neces-
sary to be employed under this Act, shall be ap-
pointed by the State Treasurer. Acts 1919, p.
383.
§ 227(2). Clerical expenses. — The sum of
six thousand dollars shall be allowed the
Treasury Department of the State for clerical
expenses in that Department, and the general
appropriation bills shall make appropriation to
cover said amount, as well as the salary of the
Assistant Treasurer provided for in section 227(1).
Acts 1919, p. 383.
[5
SECTION 8.
Duties of Treasurer.
§ 228. (§ 199.) Duties of treasurer.— It is
the duty of the State treasurer —
1. Money and warrants. To receive and keep
safely all the money which shall be paid to him
in behalf of the State (giving certificates there-
for, which shall specially set forth the amount,
on what account, and by whom paid, and shall
be lodged as vouchers in the comptroller's office),
and to pay out the same only upon the war-
rants of the Governor, when countersigned 'by the
comptroller-general, excepting the draft of the
president of the Senate, and Speaker of the
House of Representatives, for sums due to the
members and. officers of their respective bodies.
2. Books of accounts and warrants. He shall keep
a durable book, wherein he shall enter each day.
in charge against himself, all and every sum of
money received by him, stating from whom and
on what account received, and per contra credit-
ing himself with any and all sums disbursed by
him in any manner, stating to whom paid, when
paid,, and on what account or purpose paid; and
for all disbursements whatsoever, he shall take re-
ceipts or other vouchers therefor. He shall also
keep a true and faithful record in a book of all
warrants drawn by the Governor on the treasury,
stating the number of the warrant, the amount, the
date and the payee of the same, and to what fund
the same is chargeable, and he shall carefully keep
on file said warrants.
3. Ledger and entries therein. The treasurer
shall keep a general ledger of accounts, into which
he shall post all the receipts and disbursements of
his office, arranging the receipts and disburse-
ments under the heads to which they properly be-
long. He shall open in said ledger an account
with each appropriation made by the General As-
sembly, and with each salaried officer of the Stale.
in which he shall credit the object for which the
appropriation was made with the amount appro-
priated to the object, and shall charge such ap-
propriation with the payments made by him upon
the same. He shall open in said ledger a general
account of receipts and disbursements; which last-
mentioned accounts he shall compare with the
books kept by the comptroller in his office, on the
last day of each quarter of the fiscal year; and.
after having compared them, shall strike the bal-
ance on said account, showing the amount at the
time in the treasury to the credit of the state, and
he shall carry said balance forward on the book to
the general account for the next quarter.
4. Bank accounts. The treasurer shall keep ac-
counts in the books of this office writh the differ-
ent banks in which the public revenue or money is
deposited, on which balances shall be struck at
the aforesaid periods, showing the amount in bank
to the credit or debit of the State; but the deposits
of the public revenue or money shall be made only
in such bank or 'banks as the treasurer may select.
wTith the approval of the Governor, and the writ-
ten approval of the Governor designating the de-
pository or depositories of the public funds shall
be entered of record in the Executive office. The
bank or banks where public deposits are made by
n
§ 228
DUTIES OF TREASURER.
§ 228
the treasurer, or by any other person by the di-
rection of the treasurer, shall transmit to the comp-
troller-general and treasurer monthly statements of
the deposits, checks, and drafts received and paid
by them on account of the treasury.
5. Cash accounts; quarterly balancing. The
treasurer shall also keep a general cash account,
which shall be balanced at the expiration of each
quarter of the fiscal year, showing the balance in
the treasury at the end of each quarter.
6. Check-book and stubs The treasurer shall
also keep check-books, within which there shall be
suitable margins. The checks shall be numbered
by numbers in the margins corresponding with
the numbers upon the checks; and he shall note in
the margin the date and amount of the check, the
appropriation to which it shall be charged, and the
person to whom it shall be issued; and he shall
balance his accounts with all banks or other de-
positories holding State deposits as often as once
in each month.
7. Estimates and annual report to Governor.
Preceding each annual session he must submit to
the Governor detailed estimates of the probable
receipts and expenditures for the next fiscal year,
stating the source of income and the probable
amounts to be received therefrom; also the ob-
jects of appropriation and the probable necessities
of the treasury.
8. Payment only to purpose for which fund
appropriated. He shall pay all funds pledged to
the paj^ment of the public debt, or interest there-
on, or to any object of education, and to these ob-
jects only, and in nowise to any other purpose.
All payments from the treasury shall be paid from
the fund appropriated for such purpose, and not
from any other.
9. Quarterly report to Governor. At the end
of every quarter of the year, he shall make a writ-
ten report, under oath, to the Governor, of the
several amounts received by him during the three
months preceding such report; and he shall also
submit to the Governor itemized monthly reports
of the condition and transactions of the treasury,
and the information contained in such monthly
reports may be given to the public from time to
time at the discretion of the Governor.
10. Deposit in bank; supervision thereof by
Governor. He shall keep safely the scrip for
bank-stock, the State bonds, and other evidences
of the educational funds, and manage and control
the same for the purposes to which they are
pledged. He may, with the approval of the Gov-
ernor, deposit all funds set apart for the purpose
of education, or any other purpose not required
for immediate use, in any chartered bank of this
State, subject to his draft as treasurer, and, with
the Governor, make such contract with said bank
for the use of such funds as may be beneficial to
the State. If, at any time when the legislature is
not in session, the Governor be of the opinion that
the safety of the public funds requires it, he shall,
by his order in writing, direct the treasurer to
transfer the money held by any depository or de-
positories, on account of the treasury, to any
other safe and proper depository or depositories,
as the treasurer may select, with the approval of
the Governor, which approval shall be in writing,
and shall designate the depository or depositories
thus selected, and the treasurer shall thereupon
transfer the same as directed; 'but all such orders
shall be duly recorded in the Executive office, and,
as soon as possible thereafter, be submitted to the
legislature, with the reasons therefor.
11. Use of public funds for private purposes for-
bidden. The treasurer shall not, under any cir-
cumstances, use himself, or allow others to use,
the funds of the State in his hands; and for every
violation of this section he is liable to the State for
the sum of five hundred dollars, as a penalty, or
a forfeiture of his salary, if said forfeiture will pay
the penalty incurred.
12. Payment of salaries in advance; how far
allowed. He is authorized to pay all officers of
the State, whose salaries are fixed by law, seventy-
five per cent, of the amount for which service has
been actually rendered at the date of said pay-
ment, taking receipts for the same, which shall be
his vouchers and exhibits to executive warrants
for said salary; and may also pay members of the
General Assem'bly in the same way, where their
accounts are duly audited,, unless prevented by the
resolution of either or both branches of the General
Assembly.
13. Report of State debt. He shall annually re-
port to the Governor the amount of the State debt
bearing interest for each year, distinguishing be-
tween the sterling bonds, if any, and federal; the
rate per cent, paid on each kind of bonds, the
amount of each rate paid; also the exchange, "if
any; premiums on gold, if any, and the aggregate
amount of interest paid in each year, and the prob-
able amount due and unpaid at each semi-annual
payment, and the reasons for such non-payment,
as far as can be ascertained by him.
14. Cancellation of bonds and coupons. When
he pays the interest or principal of the State debt,
upon a warrant issued in his favor, he shall stamp
or mark, in a plain and indelible manner, the cou-
pons or bonds on which the payments are made,
"paid," and deposit the same in the vault of the
treasury, to be preserved in the treasurer's office
with the same care as the funds of the State sub-
ject to the order of the General Assembly.
15. Lapsed appropriations. He shall not pay
any appropriation due and not called for within
six months after the expiration of the fiscal year
for which it is appropriated, but it reverts to the
general fund in the treasury.
16. Reports filed, when. All annual reports re-
quired to be made to the Governor by the treas-
urer shall be made on or before the thirty-first
day of December, and shall be filed in his office,
and by him laid before the General Assembly, in
conection with his first annual message thereafter.
Acts 1876, p. 129.
See §§ 163, 6493, and notes thereto.
Use of Interest on State Funds. — Where the treasurer
received and used for himself interest on State money in
violation of paragraph 11 of this section, there could be
no recovery on his official bond, see § 224 and notes. Such
use of the interest subjects the treasurer to the penalty
prescribed by this section. But the section contains no
provision making the sureties on his bond liable for this
penalty. Renfroe v. Colquitt, 74 Ga. 618.
[58]
§ 229
ELECTION, BOND, AND RIGHT
§ 237
SECTION 9.
Bond-Book and Fiscal Year.
§ 229. (§ 200.) Form of bond-book.— The
dates and maturity of all bonds and coupons, the
authority under which they were issued, by whom
negotiated, or to whom sold, when negotiated and
sold, shall be, as far as practicable, incorporated in
a bond-book to be provided by the treasurer, and
the paid and canceled bonds and coupons of this
State, when paid, shall be pasted in such bond-
book in such manner that they can, at all times,
be referred to and verified. Acts 1889, p. 644.
See § 1279.
§ 230. (§ 201.) Canceled bonds.— All bonds,
and coupons of bonds, which shall be paid by the
treasurer, after having been canceled, shall be
pasted in the spaces provided in said book, accord-
ing to their respective numbers; and it shall 'be the
duty of the committees of the legislature appointed
to make examinations of the treasurer's office, to
make a memorandum by numbers and dates of
all past-due bonds and coupons that are out-
standing and unpaid, and report the same to the
General Assembly, and furnish to the treasurer a
copy of such memorandum. The treasurer shall
exhibit the same to each successive committee of
each legislature, and such committee shall check
the same, so as to verify such bonds or coupons
as have been paid since the date of said memoran-
dum. Acts 1889, p. 44, § 873, p. 15.
§ 231. (§ 202.) Fiscal year begins, when. —
The fiscal year in this State shall commence on
the first day of January, and end on the thirty-first
day of December, of each year; and all public of-
ficers of this State shall keep their official accounts
in accordance therewith. Acts 1881, p. 29.
As to year of official reports as coincident with the fiscal
year, see § 268. As to change of fiscal year in county hav-
ing over 160,000 population, see § 526 (1).
In holding that an administrator should make it appear
that it was necessary to continue business longer than the
calendar year, the court stated: "We are strengthened
in this view of the matter by the consideration that we
are dealing with a question pertaining to the fiscal af-
fairs of the State; and the Political Code, § 202, provides
that * * * (quoting this section)." Carroll v. Wright,
131 Ga. 728, 743. 63 S. E. 260.
SECTION 10.
Bond Commissioner.
§ 232. State treasurer ex-officio bond commis-
sioner.— The State treasurer shall be ex-officio
bond commissioner of this State, and he is hereby
authorized to appoint the chief clerk in the Treas-
ury Department, or some other fit and competent
person, to be assistant bond commissioner, whose
duty it shall be to receive, file, record, care and
provide for the deposit of bonds or other securi-
ties offered for deposit, as the law may direct, and
who shall be allowed a compensation of nine hun-
dred dollars per annum, to be assessed and col-
lected as hereinafter provided. Acts 1909, p. 145.
As to bonds deposited by foreign insurance company,
see § 2419.
§ 233. Fees of commissioner. — Each and every
depositing corporation or individaul of whatever
name or class, which now has or may hereafter
have on deposit bonds or other securities, as the
lawT provides, is hereby required, within sixty days
[5
from and after August 14th, 1909, and thereafter on
or before January 15th of each year, to pay the
said bond commissioner the following schedule of
fees, namely: Bonds or other securities aggregat-
ing not over $5,000.00, $2.00; not over $10,000.00,
$3.75; not over $25,000.00, $7.50; not over $50,-
000.00, $12.50; not over $100,000.00, $20.00; more
than $100,000.00, $25.00; provided, however, that
the W. & A. R. R. lessees shall be exempt from
the operation of this section; that if the total
amount exceeds $800, the surplus shall be covered
into the general funds of the treasury. In default
of the payment of the fees herein prescribed, the
bond commissioner shall refuse to accept the de-
posits required by law to be made, and shall not
certify their acceptance until the fee is fully paid
each year as herein provided, but shall report said
default to the insurance commissioner, who shall
suspend or revoke the license of said delinquent
company or individual until the fee required under
this section is fully paid. All fees collected as
aforesaid shall be held as a separate and. distinct
fund, to be disbursed only for the salary of the
said assistant bond commissioner, as provided for
in the preceding section, and for the payment of
premium on personal bond required from said
assistant bond commissioner, and for other ex-
penses of the bond department.
§ 234. Reports to insurance commissioner. — It
shall be the duty of the bond commissioner to fur-
nish to the insurance commissioner, semi-annu-
ally, a certified list of all companies or individuals
making deposit as the law requires, giving the
name of the company or individual, the amount
and kind of bond or other security so deposited,
when due, and such other information in detail
as the insurance commissioner may require.
ARTICLE 3.
Of the Comptroller- General.
SECTION l.
Election, Bond, and Rights.
§ 235. (§ 203.) Comptroller, election and
term. — There shall be a comptroller-general
elected by persons qualified to vote for members
of the General Assembly, at the same time and in
the same manner as the Governor.
See § 6489.
§ 236. (§ 204.) Bond of comptroller.— The
comptroller-general must give a bond, conditioned
the same as that of the secretary of State, for the
sum of twenty thousand dollars, subject to the
same rules and regulations. Act 1843, Cobb, 1034.
§ 237. (§ 205.) His rights and duties. — His
rights and duties are the same as those of the sec-
retary of State, set forth in sections 207 and. 208,
except the use of the great seal. He shall receive
no perquisites for any official act, but the fees pre-
scribed shall be collected by him and paid into the
State treasury. Act 1826, Cobb, 1027.
For other provisions denying fees and perquisites, see
§§ 6493, 6495, 6566. As to rights, duties the same as State
treasurer, see § 216.
9]
§ 238
ANNUAL REPORT OF COMPTROLLER TO GOVERNOR
§ 241
SECTION 2.
Duty of Comptroller.
§ 238. (§ 206.) Account of appropriations and
other duties. — It is moreover the duty of the
comptroller-general —
1. Account of appropriations. To keep an ac-
count showing the several appropriations author-
ized by law, the time when the same are drawn
from the treasury, in whose favor and to what
fund charged.
2. Countersign warrants. To examine, check,
and countersign all warrants upon the treasury
drawn by the Governor, President, and Speaker,
and charge the amount thereof to the funds on
which they may be respectively drawn, previous
to their being presented to the treasurer for pay-
ment.
3. Audit accounts. To audit all accounts
against the State, and allow or reject the same be-
fore they are submitted to the Governor.
4. Examination of tax digests. To examine all
the digests of tax returns forwarded to his office
'by the several receivers, and note and correct all
mistakes therein, and notify the collector of such
corrections.
5. Settlement with tax-collectors. To settle
with the several tax-collectors and all other per-
sons indebted to the State, and in all cases where
payments may be made at the treasury, to give re-
ceipts for the same, founded on the treasurer's cer-
tificates.
6. Executions against defaulting tax-collectors.
To collect all amounts due from defaulting col-
lectors of taxes, and issue execution therefor
against them and, their securities.
7. Warrants only on fund appropriated. To see
that no draft or warrant be countersigned by him
to be paid out of any appropriated fund after the
same has been exhausted; and in such case, or in
any case of illegal payments from the treasury
upon warrants countersigned by the comptroller,
he, as well as the treasurer, with all their securi-
ties, are jointly and severally liable upon their
several bonds for the repayment of such amounts,
with all expenses of prosecution, to the State.
8. Dividends. To issue his draft, payable to
the treasurer, for the amounts of all dividends or
taxes due by chartered banks in this State, or by
the agencies of foreign banks, and on failure to
pay the same, to issue execution therefor.
9. Debts due State. To receive and keep safely
and collect all evidences of debt due to the State
from any other source then taxes, and pay over
the same to the treasurer as soon as received.
10. Report from solicitors-general. To notify
the attorney and solicitors-general, or any other
attorney, in his discretion, of all executions against
defaulting tax-collectors, and require of them an-
nually a report of the state or condition of such
executions prior to the session of each General As-
sembly.
11. Book of bonds taken. To keep a book in
which to enter all bonds taken since the third day
of March, 1856, and to file the originals in his
office.
12. Index to records. To have made suitable
indexes to the record-books in his office.
13. Agents, accounts audited. To audit the ac-
counts of all agents disbursing public money.
Acts 1799, Cobb, 1022; Acts 1821, Cobb, 1023;
Acts 1823, Cobb, 1025; Acts 1838, Cobb, 1029;
Acts 1839, Cobb, 1031; Acts 1861, p. 81.
For full treatment, see 10 Enc. Dig. 122.
In General. — Where an execution was made under this
section it did not prevent the execution from being within
a former section, since repealed, making it the duty of
the treasurer to issue the execution, as this section was
considered an amendment of the repealed section. Eve
v. State, 21 Ga. 50.
"The Comptroller General can not go beyond the proper
books of account to ascertain how much is due by a de-
faulting officer, in order to issue his summary process
against him to collect the amount." Scofield v. Perker-
son, 46 Ga. 325, 347.
Mandamus will not lie to compel a sheriff to accept an
affidavit of illegality to an execution issued by the comp-
troller-general against a tax collector. Webb v. New-
som. 138 Ga. 342, 75 S. E- 106.
Injunction. — The courts will not enjoin execution issued
by the comptroller-general. Scofield v. Perkerson, 46 Ga.
325.
SECTION 3.
Wild Lands.
§ 239. (§ 207.) Comptroller to furnish list of
wild lands. — The comptroller-general shall fur-
nish to each clerk of the superior court of the sev-
eral counties of this State a list, such as he has in
his office, of all the lots of wild lands lying.in the
county of such clerk, and it shall be the duty of
the clerk, of each county to fully prepare and
keep a book of record of such wild lands in his
county, properly indexed, so that the same may be
readily referred to. Acts 1880-1, p. 45.
As to sale of wild lands, see § 4024.
The law presumes that the comptroller did his duty by
complying with this section. Eivingston v. Hudson, 85
Ga. 835, 12 S. E. 17; Bedgood & Royal v. McEain, 94 Ga.
283.
§ 240. (§ 208.) Shall not speculate in wild
lands. — He shall not, directly or indirectly, be
interested or engaged in the purchase and sale of
wild lands on speculation, on pain of removal by
the Governor or the General Assembly.
SECTION 4.
Annual Report of Comptroller to Governor.
§ 241. (§ 209.) Shall report to the Governor
annually. — He shall make a report annually to the
Governor, showing —
1. Account current. An account current, from
his books, 'between the treasurer and the State, of
all receipts and payments, including amounts paid
on the drafts of the President and Speaker, as re-
ported to him by the treasurer.
2. Taxes paid, in default, etc. A statement of
the taxes paid to the State by each of the counties,
as appears by the digest thereof, and the counties
whose collectors are in default, and the amount of
such default.
3. Claims due State. A statement of all evi-
dences of debt due the State and uncollected*
which may remain in his office, the condition of
the same, the name of the solicitor or attorney
having it in charge, and his report of it.
4. Educational fund. A statement of the edu-
[ 60
§ 242
SEAL, COPIES OF RECORDS, AND CLERK
§ 250(1)
cational fund of the . State, its annual income, the
amounts paid out, when and to whom.
5. Public debt. A statement of the condition of
the public debt of the State, the amount of inter-
est paid, and the fund from which paid.
6. Disbursing agents. A statement of the ac-
counts of all officers and agents disbursing public
money, and the names of such as have failed to
comply with the laws relating to their offices and
appointments, and the several sums for which
they are in default.
7. Salaries of public officers. The salaries and
pay of all officers of the State.
8. Incidental expenses. The incidental expen-
ses of the General Assembly, executive and judi-
cial departments.
9. All other payments. All sums paid or due to
individuals by special contract. Act 1821, Cobb,
1024; Act 1828, Cobb, 1027; Acts 1839, Cobb, 1032;
Act 1843, Cobb, 1033.
As to quarterly reports of comptroller, see § 6572.
SECTION 5.
Authority of Comptroller.
§ 242. (§ 210.) Authority of comptroller. —
He has authority —
1. Settle up business of prior years. To settle
up the business of the office for previous years.
2. Allow commissions. To allow receivers and
collectors of taxes their commissions, and to bal-
ance the tax-books and other books of the office,
upon satisfactory proof of payment or settlement.
3. Collect unpaid taxes. To collect all unpaid
taxes of previous years.
4. Administer oaths. To administer oaths to
all persons in like manner as judges of the supe-
rior courts and justices of the peace. Acts 1855-6,
p. 276; Acts 1878-9, p. 180.
As to authority to assist the Governor in levying an
ad valorem tax, see § 914. As to duty of ordinary to for-
ward return to comptroller, see § 1200.
§ 243. (§ 211.) May suggest improvements in
revenue laws. — In his annual report the comp-
troller-general shall suggest such improvements
in the revenue laws as his experience and observa-
tion may approve. His report must be made at
the time the treasurer's is, and likewise communi-
cated to the General Assembly. Act 1821, Cobb,
1024.
SECTION 6.
Records of Bonds, Warrants, and Appropriations.
§ 244. (•§ 212.) Must record appropriations
and warrants. — He must keep in his office a well-
bound book in which shall be entered, in alpha-
betical order, the full amount of all annual appro-
priations, setting forth the amounts under their
several heads; all warrants that he may check and
pass, together with the fund on which it is drawn,
the time, amount, and in whose favor drawn; and
make all entries necessary to a true exhibit of the
finances of the State. Act 1839, Cobb, 1031.
§ 245. (§ 213.) Must record tax collector's
and receiver's bonds. — He must keep a book in
which to enter all bonds taken of tax-collectors
and receivers, and keep the same on file in his of-
fice. He shall collect all unpaid taxes of previous
years. Acts 1855-6, p. 276; 1873, p. 21.
SECTION 7.
Seal, Copies of Records, and Clerk.
§ 246. (§ 214.) Must give copies of papers. —
He must certify under his official seal, at all times
when necessary for the public use, and on applica-
tion and payment of his legal fees therefor,
for private use, copies of any papers kept in his
office.
Copies of Tax Returns of Railroads. — Where county au-
thorities may levy a property tax upon railroads, they are
authorized by this section to obtain a certified copy of
the returns of the company to the comptroller-general, as
a basis for the tax. Georgia Railroad, etc.. Co. v. Hutch-
ins, 125 Ga. 762, 54 S. E\ 725.
§ 247. (§ 215.) Official seal of the comp-
troller.— The seal of the comptroller-general's of-
fice is as follows: Circular in form, one and a half
inches in diameter, made of brass, with a human
hand holding a pen in the attitude of writing, in
the center, surrounded by the words, "Comptrol-
ler-General's Office, State Of Georgia." Acts 1870,
p. 12.
§ 248. (§ 216,) May appoint and remove clerk.
— He is allowed a clerk, to be appointed and re-
movable by him; and such clerk shall receive an
annual salary of twenty-four hundred dollars,
twelve hundred of which shall be paid out of in-
surance fees. Acts 1862-3, p. 56: 1865, p. 250; §
317; Acts 1907, p. 97; Acts 1919, p. 282.
Editor's Note. — This section was amended by the Acts
of 1919, p. 382, which increased the clerk's salary from
eighteen hundred to twenty-four hundred dollars, and pro-
vided that twelve hundred in place of six hundred be pay-
able from insurance fees.
§ 249. Corporation clerk and his duties. —
There shall be a corporation clerk whose duty it
shall be to keep the records of all foreign corpo-
rations doing business in this State, the lists of
the agents "of said corporations, the amount of
capital stock and place of business, the amount of
license or occupation tax paid by said corporation,
and the amount of certificate fees paid for dupli-
cate certificates for agents; to issue licenses upon
the certificate of the comptroller-general to all
corporations paying business ^or occupation tax
under the law; to issue duplicate certificates of au-
thority to all agents of licensed foreign corpora-
tions paying the tax and fees, and to perform such
other duties under the direction of the comptroller-
general as may be necessary to carry out the law.
Acts 1909, p. 143.
§ 250. Tax clerk shall be corporation clerk, and
his salary. — The tax clerk in the comptroller-gen-
eral's office, appointed by the comptroller-general
shall be ex-officio the corporation clerk, and he
shall be allowed a salary not to exceed twenty-five
hundred dollars per annum, to be paid out of com-
missions and fees from the special taxes or license
fees collected under the preceding section, and in
accordance with the laws of this State. Acts 1919,
p. 74.
Editor's Note. — By the Acts of 1919, p. 74, this section
was amended by limiting the clerk's salary to twenty-five
hundred in place of fifteen hundred dollars.
§ 250(1). Public service corporation tax clerk;
duties. — There shall be a public service corpora-
(61]
§ 250(2)
OF THE ATTORNEY— GENERAL
§ 254
tion tax clerk in the office of the Comptroller-
General, whose duty it shall be to keep and file all
of the tax returns of public service corporations
required by law to make returns of their property
and franchises to the Comptroller-General for
State, county, city and local school district taxa-
tion. It shall also be the duty of said clerk, after
said returns are examined and accepted by the
Comptroller-General, to calculate the amount of
the taxes due !by said corporations to the State,
counties, municipalities and local school districts
by applying the respective rates of taxation levied
by each jurisdiction, and furnish each of said pub-
lic service corporations a statement of the amount
of tax due the State, each county, each city or
town, and each local school district, on property
and franchises located in their respective juris-
diction. Said clerk shall also make up and mail
to the proper officer of each county, municipality,
and local school district statements of taxes due
by the public service corporations owning prop-
erty therein. Acts 1918, p. 209.
§ 250(2). Wild land clerk to serve ex-officio;
salary. — The Wild Eand Clerk in the Comptroller-
General's office, now by law appointed by the
Comptroller-General, shall be ex-officio Public
Service Corporation Tax Clerk and shall dis-
charge the duties required of said clerk by this
Act, for which service he shall receive a salary of
twelve hundred dollars ($1,200) per annum, and
same is hereby appropriated by this Act, and the
Governor is authorized to draw his warrant
quarterly on the State Treasury in payment of
same, as provided by law for the payment of sala-
ries of State officers and clerks. Acts 1918, p. 209;
1920, p. 236.
members of the General Assembly; the total
amount drawn by each county from the treasury,
and the total amount of next tax paid into the
treasury for the year preceding by each county.
Also, to furnish such other statistical information
connected with his office as may be useful to the
General Assembly. The annual reports of said
officer and of the treasurer must contain only the
available funds or cash in the treasury as the bal-
ance therein. They are also required to report
separately, and under the head of "Assets belong-
ing to the State," all bank or railroad stocks or
bonds, or- other assets; the State Road to be re-
ported without any stipulated value. Such offi-
cers are authorized to make such transfer or al-
terations on their books as are necessary to com-
ply with the preceding section. The items,
"Darien Bank bills," "Western and Atlantic Rail-
road scrip," and uncurrent funds hitherto reported,
must be sealed up, remain in the treasury, and be
left out of all future annual reports of said officers.
Acts 1859, p. 67.
As to return of taxes paid by colored people, see § 1116.
SECTION 8.
Settlement with Successor.
§ 251. (§ 217.) Must settle with successor. —
If the comptroller resigns, or is removed, he must
immediately state his account and deliver every-
thing pertaining to his office to his successor; or
if he dies, absconds, or absents himself for as long
as thirty days without the Governor's permission,
the Governor may, without delay, declare the
office vacant, supply his place by appointment, ex-
amine the condition of his office, and deliver over
to the appointee.
SECTION 9.
Report to General Assembly.
§ 252. (§ 218.) His report and what it must
contain. — The comptroller-general must make
out, for the use of the General Assembly —
1. Taxable property. A table containing the
taxable property and other items on the tax di-
gest of each county for the year in which he makes
his annual report.
2. Other items. A table annually of the polls
in each county for the year immediately preceding
his report; the number of voters in each county at
the general election next preceding his report; the
number of children in each county returned for
participation in the educational fund, and the
amount drawn by each county from said fund:
the amount drawn by each county for pay of
ARTICLE 4.
Of the Attorney- General.
For full treatment, see 2 Cum. Dig. 400; 2 Enc. Dig. 92.
§ 253. (§ 219.) How elected. — There shall
be an attorney-general of the State, who shall be
elected by the people, at the same time, for the
same term, and in the same manner as the Gov-
ernor.
This section is identical with the constitutional provi-
sion, see § 6528.
§ 254. (§ 220.) Duties, etc. — It is the duty of the
attorney-general when required so to do 'by the
Governor — •
1. Written opinion. To give his opinion in
writing, or otherwise, on any question of law con-
nected with the interest of the State, or with the
duties of any of the departments.
2. Preparations of contracts. To prepare all
contracts and writings in relation to any matter
in which the State is interested.
3. Attends trial of what cases. To attend, on
the part of the State, to all criminal causes in any
of the circuits, when the solicitor-general thereof
is prosecuted, and to all other criminal or civil
causes to which the State is a party.
4. In Supreme Court. It shall be the duty of
the attorney-general to act as the legal adviser of
the Executive Department, to represent the State
in the Supreme Court in all capital felonies, and
in all civil and criminal cases in any court when
required by the Governor, and to perform such
other services as shall be required of him by law.
Acts 1799, Co'bb, 574; §§ 5510, 6529; Acts 187H,
p. 31.
See § 6529. As to what proceeding he is a party, see
§§ 446, 456, 461.
When Attorney General Is Incapacitated. — The State
must not go unrepresented, nor the criminal jurisdiction
fail for want of a prosecuting officer; and if in the opin-
ion of the court, the States Attorney is unable from sick-
ness, to discharge his duty, it is the duty of the court, in
the true spirit and intent of the Act of 1799, Cobb 574 (sim-
ilar to this section), to substitute another in his place.
Mitchell V. State, 22 Ga. 211, 232.
The duties of the attorney general are limited by this
and the three sections immediately following, and where
21
§ 255
ELIGIBILITY AND QUALIFICATION
§ 258
the constitution creates an office and prescribes the duties
of the holder thereof, and declares that other duties may
be imposed on him by statute, he has no authority to
perform any act not legitimately within the scope of such
statutory and constitutional provisions. Walker v. Ga.
Railway, etc., Co., 146 Ga. 655, 92 S. E. 57.
Injunction against Ultra Vires Acts. — The attorney gen-
eral of this State was without authority to institute an
equitable action in the name of the State, on the relation
of a number of designated individuals, against a domestic
corporation, to enjoin it from doing acts alleged to be
ultra vires. Walker v. Ga. Railway, etc., Co., 146 Ga.
655, 92 S. E- 57.
§ 255. (§ 221.) May be required to attend cir-
cuits.— When the services of such attorney-gen-
eral shall be needed in either of the judicial cir-
cuits, the presiding judge thereof shall notify the
Governor twenty days before the time, place, and
cause, and the Governor may (in his discretion)
order the attorney-general to comply, unless
the law in the case presented makes it his impera-
tive duty to do so.
§ 256. (§ 222.) Comptroller-general may re-
quire his services. — It is in the discretion of the
comptroller-general to require the attorney-gen-
eral, when the services of a solicitor-general are
necessary in collecting or securing any claim of
the State, in any part of the State, either to com-
mand the services of said attorney-general in any
and all of such cases, or of the solicitors-general
in their respective circuits.
See § 149.
§ 257. Duties in connection with the Western
& Atlantic Railroad. — The Governor is authorized
to require the attorney-general to perform, with-
out compensation, all duties performed by the at-
torney for the Western & Atlantic Railroad,
The duties devolved upon the special agent of
the Western & Atlantic Railroad by an Act ap-
proved December 20th, 1892, and all similar du-
ties concerning said railroad, shall be performed
by the attorney-general, without other compensa-
tion than his official salary. Acts 1902, pp. 97, 98.
§ 257(1). Abolition of office of clerk and su-
pervisor, assistant and stenographer. — The
clerical force in the office of the Attorney-General
be and the same is hereby reorganized. The of-
fice of the clerk to the Attorney-General, the Su-
pervisor, and of two Deputy Supervisors of
County Officers and County Records, are hereby
abolished, and the Attorney-General is authorized
to employ an assistant and a stenographer. Acts
1919, p. 133.
§ 257(2). Salaries. — The salary of the At-
torney-General is hereby fixed at the sum of Five
Thousand ($5,000.00) Dollars per annum. The
same being the total compensation hereto paid for
all services rendered, provided that the Attorney-
General shall hereafter represent the State in all
cases before the Supreme Court of the United
States and perform all other services 'beyond the
limits of the State without extra compensation.
The salary to the assistant to the Attorney-General
is hereby fixed at the sum of Twenty-five Hundred
($2,500.00) Dollars per annum, and the salary of the
stenographer to the Attorney-General is hereby
fixed at the sum of Fifteen Hundred ($1,500.00)
Dollars per annum. Acts 1919, p. 133.
FOURTH TITLE.
General Regulations as to All Officers and Offices.
CHAPTER l.
Of Eligibility, Qualifications, and Commissions of
Officers, and Vacation of Offices.
ARTICLE 1.
Eligibility and Qualification.
§ 258. (§ 223.) Persons ineligible; de facto of-
ficers.— The following persons are held and deemed
ineligible to hold any civil office in this State, and
the existence of either of the following states of
facts is a sufficient reason for vacating any office
held by such person, but the acts of such person,
while holding a commission, are valid as the acts
of an officer de facto, viz.:
For a full treatment of de facto officers, together with
any grounds of ineligibility, see 4 Cum. Sup. Dig. 736 et
seq.; 4 Enc. Dig. 350 et seq. In addition, see 9 Cum.
Sup. Dig. 674. See also § 6407. As to failure of officer to
take oath, see § 277.
De facto officer defined. Hinton v. Lindsay, 20 Ga. 746.
Principles upon which the doctrine of recognition of the
acts of a de facto officer rest. Smith v. Meador, 74 Ga.
416, 419.
Nature and Scope of Rights While Functioning. — A de
facto Marshall has the same right to make an arrest as
one regularly appointed. McDuffie v. State, 121 Ga. 580,
583, 49 S. E. 708.
Where a person acts de facto as Ordinary, a court of
equity has no jurisdiction to interfere with his collection
of fees for such duties. Stone v. Wetmore, 42 Ga. 601.
The acts of a deputy sheriff, de facto, are good as to
third persons. Brooks v. Rooney, 11 Ga. 423.
Official character of person prima facie presumed
where he acts notoriously as a public officer in certain
capacity. See § 5754. Bryan v. Walton, 14 Ga. 185; Al-
len v. State, 21 Ga. 217.
Record Showing Lack of Legal Appointment. — Where
the record evidencing appointment shows that the appoint-
ment was without legal authorization, the appointee is not
an officer de facto so as to make his acts valid. Parrish
v. Adel, 144 Ga. 242, 86 S. E. 1095.
Methods of Testing Eligibility. — For full treatment, see
§ 5451 and notes; 9 Cum. Dig. 748 et seq.; 10 Enc. Dig.
737 et seq.
Right of judge to hold office not tested by calling upon
him to decide and excepting to his decision. Jenkins v.
State, 93 Ga. 1, 3, 18 S. E- 992.
1. Non-residents and minors. Persons who are
not citizens of this State, nor of the age of twenty-
one years or upwards.
2. Holders of public money. All holders or re-
ceivers of public money of this State, or any county
thereof, who have refused when called upon, or
failed after reasonable opportunity, to account for
and pay over the same to the proper officer.
Cited and quoted in State v. Lennard, 48 Ga. 137.
3. Persons convicted of crime. Any person
convicted and sentenced finally for any felony, un-
der the laws of this or any other State, involving
moral turpitude, the offense being also a felony in
this, unless restored by a pardon from the proper
executive, under the great seal of the State, to all
the rights of citizenship.
4. Holding other offices. Persons holding any
office of profit or trust under the government of
the United States (other than that of postmaster
and officers of the Reserve Corps of the United
States Army, Navy and Marine Corps), or of
either of the several States, or of any foreign
state.
Editor's Note. — The amendment of 1925, page 78 added
the following words "and officers of the Reserve Corps of
63 ]
258
ELIGIBILITY AND QUALIFICATION
§ 261
the United States Army, Navy and Marine Corps" after
the word postmaster.
Voluntarily Entering U. S. Training Camp. — The solic-
itor of the city court who voluntarily entered U. S. train-
ing camp was a de facto officer until the fact of his dis-
qualification should be "ascertained and declared by the
proper tribunal," and his act in appointing an assistant
solicitor during his temporary absence was valid, as the
act of an officer de facto. Christopher v. State, 21 Ga.
App. 244, 94 S. E. 72. See § 6420.
"Or of Either of the Several States" as including Ga.
discussed but not construed in Long v. Rose, 132 Ga. 288,
292, 64 S. E. 84.
Holding City and County Offices Simultaneously. — This
section did not render one who held the office of solicitor
of the county court of a count}' ineligible to hold the of-
fice of mayor of a municipal corporation located in such
county, for municipal office is not a "civil office of the
state." Nor did it render persons who respectively held
the offices of county treasurer and member of the board
of education of the county ineligible to hold the offices of
alderman of a municipal corporation. Long v. Rose, 132
Ga. 288, 64 S. E- 84. See § 264 and notes. Phillips v. Jef-
ferson, 13 Ga. App. 376, 79 S. E. 222.
5. Insane persons. Persons of unsound mind,
and those who, from advanced age or 'bodily infir-
mity, are unfit to discharge the duties of the of-
fice to which they are chosen or appointed.
6. Denizens. Those who have not been inhabit-
ants of the State, county, district, or circuit for
the period required by the Constitution and laws
of this State.
7. Must be citizen of county. No person shall
be eligible to hold any county office in any
county of this State, unless he shall have been
bona fide a citizen of the county in which he shall
be elected or appointed at least two years prior to
his election or appointment, and is a qualified
voter entitled to vote.
Solicitor Living out of Circuit. — Where the presiding judge
appointed a lawyer not residing in the circuit to act as so-
licitor pro tern, even if disqualified, such officer is a de
facto officer and his acts as such are valid under this sec-
tion. Statham v. State, 41 Ga. 507, 512.
What Constitutes Citizenship. — A justice of the peace who
lives four nights a week in another district has changed
his residence and is an officer de facto, but his acts as such
are valid and cannot be attacked collaterally. Hinton v.
Lindsay, 20 Ga. 746. See § 6599.
Who Is a County Officer. — A city superintendent is an of-
ficer of the city and county board of education but is not
such a county officer as the law requires to be elected by
the people, and whose eligibility as to citizenship is fixed
by this section because his duties are not identical with the
duties required of the county superintendent. Richter v.
Board, 149 Ga. 32, 99 S. E. 28.
8. Constitutional privileges. All persons from
any cause constitutionally disqualified. All of-
ficers are eligible to re-election and reappoint-
ment, and to hold other offices, unless expressly
declared to the contrary by the Constitution or
laws. Act 1787, Cobb 366; Act 1823, Cobb 209;
Acts 1900, p. 42; 1925, p. 78..
Improper Election. — Municipal officers, being elected by
unregistered voters in contravention of statute, are de facto
officers, when they assume duties. Hawkins v. Jonesboro,
63. Ga. 527.
Illegal Appointment.— County commissioners illegally ap-
pointed by grand jury are officers de facto. Waller v. Per-
kins, 52 Ga. 234, 240.
Where there are only four militia districts in a town and
the Governor appoints an extra notary public he is a de
facto officer. Pool v. Perdue, 44 Ga. 454, 458.
Not - Freeholders. — Members of a board of education or
election managers who are not freeholders as required by
law are de facto and their acts are valid until they are
ejected. Smith v. Border, 72 Ga. 546; Collins v. Huff, 63
Ga. 207, 209.
Appointment Not Confirmed. — Judge of city court ap-
pointed by the Governor but not confirmed by senate is an
officer de facto and his acts are valid. Jenkins v. State,
93 Ga. 1, 18 S. E. 992. See § 2165.
Where Commission Has Not Issued. — Though a deputy
sheriff's commission has not issued from the Governor, his
acts are valid under this section where he has taken oath
and given bond, irrespective of whether it is necessary for
such commission to issue. Bailey v. Kennett, 32 Ga. App.
255, 122 S. E. 804. -
Failure to Give Bond. — A duly elected sheriff who has not
given a lawful bond is an officer de facto and his acts are
valid when they concern the public or third persons having
an interest in them. Governor v. Howard, 9 Ga. 314.
Neither upon principle nor authority can it be held that
the official acts of a sheriff of a city court who attempted
in good faith to qualify are void merely because his bond
was not approved and filed in the manner required by law.
In cases like this, questions of public policy are involved,
and it should never be held that an irregularity such as
that relied on in the present case, in which an officer has
in good faith attempted to qualify himself to discharge the
duties of the office, should render all his official acts void.
Cooper v. Ricketson, 14 Ga. App. 63, 67, 80 S. E. 217.
A constable who fails to give bond is an officer de facto
and his acts are valid. Gunn- v. Tackett, 67 Ga. 725, 726.
Approval of Bond after Duties Begun. — Where an ordi-
nary's bond was not accepted until after he had begun
duties, he was de facto officer until acceptance, and his
acts were valid. Merchants, etc., Bank v. Citizens Bank,
147 Ga. 366, 94 S. E. 229.
Where a court was abolished, the judge ceased to be an
officer even de facto. Strickland v. Griffin, 70 Ga. 541
and cases cited.
§ 259. (§ 22f.) Only one county office to be
held. — No person shall hold, in any manner what-
ever, or be commissioned to hold at one time, more
than one county office, except by special enact-
ment of the legislature heretofore or hereafter
made; nor shall any commissioned officer be dep-
uty for any other commissioned officer, except
'by such special enactment. Acts 1890-1, p. 102.
Inapplicable to Municipal Offices. — See note to par. 4
of § 258. See also § 886 and notes.
This section applies to county officers without expressed
legislative authority to hold two offices and therefore does
not prohibit one holding two municipal offices with ex-
pressed legislative authority. Board v. Dobbs, 151 Ga. 53,
56, 105 S. E. 611.
Passage of Special Acts Illustrated. — An act vesting
certain county officers with other county offices does not
conflict with this section so as to be unconstitutional as
being a special law for which there is an existing gen-
eral law (this section) because this section specifically
recognizes the power of the legislature to pass such acts.
Dallis v. Griffin, 117 Ga. 408, 43 S. E. 758. See §§ 3966,
4788.
An act providing that the ordinary and clerk of Ware
county should perform certain functions in conjunction
with the commissioner of roads and revenues was not un-
constitutional because it is a special act covering the same
subject as this section, a general law. Crawley v. State,
150 Ga. 86, 102 S. E. 898.
§ 260. (§ 225.) Failing to obtain commission. —
Persons who, after an election, fail to comply with
all the prerequisites of the law in order to obtain
commissions or certificates to discharge the duties
of the office, are ineligible to re-election at the elec-
tion held, by reason of such failure, for the same
office.
§ 261. (§ 226.) Officers of this State must re-
side therein, hold until successor is qualified, and
keep seal. — All officers of this State must reside
therein, at such places as are designated by law,
and discharge the duties of their office until their
successors are commissioned and qualified; and all
officers whose certificates of records or other
papers are admissible in evidence in any court in
this State must have and keep an official seal.
Acts 1851-2, p. 77.
See § 265 (1). See also 9 Cum. Dig. 674, 683; 10 Enc.
Dig. 694, 695.
This section is mandatory, and there are good reasons
why it should be so, among them, that governmental func-
tions should not cease, and that public records of the of-
[64]
§ 262
VACANCIES
§ 264
fice should be preserved and handed over to a successor.
Bates v. Bigby, 123 Ga. 727, 730, 51 S. E. 717.
Jury Commissioners hold over until successors appointed.
Roby v. State, 74 Ga. 812.
Commercial Notary Holds Over. — The affidavit to a deed
of assignment made before a commercial notary public is
not void because made after the expiration of his term
but before the renewal of his appointment. Smith v.
Meador, 74 Ga. 416.
Act Creating Office Need Not Provide for Holding Over.
— Where a special act created a board of county commis-
sioners, providing for a term of four years, the office did
not expire at the end of the term, but the appointee held
over under this section until his successor qualified. Wal-
ker v. Ferrill, 58 Ga. 512. See also Shackelford v. West,
138 Ga. 159, 74 S. E. 1079.
Holding Over until Appointment Confirmed by Senate.
— Where an appointment by the Governor must be con-
firmed by senate, the appointee is not a successor in of-
fice until the confirmation. Where the term of the incum-
bent has expired, but he still continues to discharge his
duties, there is no such vacancy in the office as will au-
thorize the Governor to appoint a successor without con-
sent of senate. Shackelford v. West, 138 Ga. 159, 74 S.
E. 1079.
Distinction between Expiration of Term and Vacancy. —
See general note to § 264.
Trial of Case after Resignation. — Where a justice of the
peace three days after he had tendered his resignation and
it had been accepted tried a case, the judgment in such
case is good because the officer must discharge duties
until his successor has qualified. Bates v. Bigby, 123
Ga. 727, 51 S. E. 717.
Collection of Salary When Holding Over. — Where the
commission of a city judge did not issue until one year
after his reappointment and the beginning of the new
term, even though he did not function because he thought
his court had been abolished by the legislature, he may
collect his salary because he holds until his successor is
qualified. Johnson v. Brooks, 139 Ga. 787, 78 S. E. 37.
See also Shackelford v. West, 138 Ga. 159, 74 S. E. 1079.
See § 264.
ARTICLE 2.
How Commissioned.
§ 262. (§ 227.) What officers must be com-
missioned under the great seal. — The following
officers must be commissioned, with the great
seal of the State annexed thereto, signed by the
Governor, and countersigned by the secretary of
State, viz.: Senators and representatives in Con-
gress, judges of the Supreme and superior courts,
attorney and solicitor-general, reporter of the
Supreme Court, secretary of State, treasurer, and
comptroller-general, and all military officers of
the grade of general, either of division or brigade.
Those of all Federal or judicial officers above
enumerated must be on, parchment.
See § 213.
The commissioner of pensions is a civil officer not in-
cluded in this section. McGregor v. Clark, 155 Ga. 377,
116 S. E. 823.
The Governor's commission is only prima facie evidence
of title to an office. State v. Towns, 8 Ga. 360; Hardin
v. Colquitt, 63 Ga. 588, 595.
Constables Not Included. — This and the following sec-
tion shows that, as a general rule, all civil officers ex-
cept constables, are to be commissioned by the Governor.
Hardin v. Colquitt, 63 Ga. 588, 593. See §§ 144, 155, 263.
§ 263. (§ 228.) What officers commissioned
under Executive seal. — All other civil officers of
the State or county shall be commissioned under
the seal of the Executive Department, signed by
the Governor, and countersigned 'by one of his
secretaries, except constables, whose election shall
be certified by the ordinary; and such certificates
shall operate as their commission. All officers of
the militia of volunteer companies, battalions or
regiments, regularly incorporated (of the grade of
Ga. Code— 3 [ 6
lieutenant or higher), shall have commissions un-
der the seal of the Executive Department.
The commissioner of pensions is included within the
provisions of this section. McGregor v. Clark, 155 Ga.
377, 380, 116 S. E. 823.
Clerk of City Court. — The terms of this and the pre-
ceding section seem to include the clerk of the city court
of Savannah provided he is a state or county officer. Col-
lins v. Russell, 107 Ga. 423, 33 S. E. 444.
ARTICLE 3.
Vacancies.
§ 264. (§ 229.) Offices, how vacated.— All
offices in the State are vacated —
See 9 Cum. Dig. 677, 680, 683, 684; 10 Enc. Dig. 685, 688,
695, 696. As to mode of filling vacancies, see § 156.
Exhaustiveness of Section. — These instances may not be
exhaustive of conditions which create vacancy, but their
enumeration is strongly suggestive of the legislative con-
ception of the nature of the circumstances which would
have the effect of creating a vacancy in the office. It is
characteristic of each of the specified instances that there
is no incumbent of the office capable of exercising its func-
tions and discharging its duties. Shackelford v. West, 138
Ga. 159, 162, 74 S. E. 1079.
Court Abolished. — Office of judge ceases when the court
is abolished. Strickland v. Griffin, 70 Ga. 541, 547.
1. Death. By the death of the incumbent.
2. Resignation. By resignation, when accepted.
3. Judgment. By decision of a competent tri-
bunal declaring the office vacant.
Section as Guaranty of Hearing. — This section does not
guarantee to a railroad commissioner a right to have a
hearing by a competent tribunal before he can be removed
from office. Gray v. McEendon, 134 Ga. 224, 242, 61 S. E.
859.
Same — Where Tenure of Office Not Prescribed. — Where
the tenure of an office is not prescribed by law, the power
to remove is an incident to the power to appoint and no
formalities such as a hearing to the incumbent are neces-
sary to the lawful exercise of the authority of removal.
The provision of this section is not applicable to such case.
Wright v. Gamble, 136 Ga. 376, 71 S. E. 795.
4. Incapacity. By voluntary act or misfortune
of the incumbent, whereby he is placed in either
of the conditions specified of ineligibility to office,
which shall operate from the time the fact is
ascertained and declared by the proper tribunal.
Must Be Declared by Competent Tribunal. — Though the
voluntary act of the solicitor in entering the government
officer's training school, placed him in either of the con-
ditions specified of ineligibility to office, such a disqualifica-
tion operates only from the time the fact "is ascertained
and declared by the proper tribunal." Christopher v. State,
21 Ga. App. 244, 94 S. E. 72. See §§ 258, 394.
Same — Involuntarily Incapacitated by Imprisonment. —
Where a city detective remains in jail for 31 days on charge
of murder, his office is not vacated for incapacity in the ab-
sence of the decision of a competent tribunal to that effect.
Bunch v. Macon, 29 Ga. App. 290, 115 S. E. 40.
5. Removal. By the incumbent ceasing to be a
resident of the State, or of the county, circuit,
or district for which he was elected. In the
first case the office shall be vacated immediately;
in the latter cases, from the time the fact is ju-
dicially ascertained.
See § 258, par 1. See also, 9 Cum. Dig. 684; 10 Enc. Dig.
695.
Necessity of Judicial Ascertainment. — The removal of
an officer from the county for which he was elected
to another- county in this State does not vacate the office
until the fact has been judicially ascertained. Johnson v.
State, 27 Ga. App. 679, 109 S. E. 526; Bush v. State, 10
Ga. App. 544, 73 S. E. 697. A challenge to the array of ju-
rors, because of such non-residence of a jury commissioner
must show that the fact had been judicially determined.
Channell v. State, 109 Ga. 150, 34 S. E. 353.
County Officer Moving from District Where Appointed. —
The removal of a county commissioner from the militia
district from which he was appointed (statute declaring
5]
§ 265
OFFICIAL OATHS
§ 269
that the grand jury should not select two commissioners
from the same district) into another district of the same
county would not vacate the office under this section be-
cause of the removal, for his duty is coextensive with the
county, and the statute only applies to members of the
board at the time of election. Stanford v. Eynch, 147 Ga.
518, 520, 94 S. E- 1001.
6. Failing to obtain commission. By failing to
apply for and obtain commissions or certificates,
or by failing to qualify or give bond, or both,
within the time prescribed by the laws and Con-
stitution.
See §§ 260, 276, 287. See also, 9 Cum. Dig. 684; 10 Enc.
Dig. 696.
Officer Must Be in Fault. — This paragraph applies only
to a failure on the officer's part, that is cases where the
officer is in fault. The office would not be vacant where
through the Ordinary's negligence, failure of the mail, or
any other delay beyond the officer's power, he does not get
his commission within the statutory period. Ross v. Wil-
liamson, 44 Ga. 501, 504. See § 285.
Same — Illustration. — A tax collector who applied for com-
mission within statutory period and gave bond 10 days after
notice of its arrival did not forfeit his office. Bassett v.
Governor, 11 Ga. 207.
Same — Applicability to Execution of New Bond. — Where
the sureties were released and the Governor ordered the
sheriff to give another bond to the Ordinary of the county,
within ten days, on failure to comply within the time pre-
scribed, he forfeited his right to exercise the duties of the
office, although there was a vacancy in the office of Ordi-
nary during the period. Bosworth v. Walters, 46 Ga. 636.
See § 302.
7. Abandonment. By abandoning the office and
ceasing to perform its duties, or either.
Abandonment within the meaning of this section is a wil-
ful or voluntary forsaking or relinquishment or voluntary
and wilful failure to perform, or either. Johnson v. Brooks,
139 Ga. 787, 78 S. E. 37. See 9 Cum. Dig. 684; 10 Enc. Dig.
696.
Therefore the failure to perform the duties of a judge-
ship due to acquiescence in the validity of a statute, abol-
ishing the court, until declared nugatory, would not be an
abandonment. Johnson v. Brooks, 139 Ga. 787, 78 S. E. 37.
So when a city detective is placed in jail for 31 days on
a charge of murder, failure to discharge his duties during
thrs period of time did not amount to an abandonment un-
der this section. Macon v. Bunch, 156 Ga. 27, 32, 118 S.
E. 769. See Bunch v. Macon, 29 Ga. App. 290, 115 S. E- 40.
§ 265. (§ 230.) Term of officers to fill vacan-
cies.— In all cases where the office of the Gover-
nor, senators or representatives, judge of the Su-
preme Court, judge of superior court, attorney-
general, solicitor-general, secretary of State,
treasurer, comptroller-general, surveyors-general,
ordinary, sheriff, clerk of the superior court, tax-
collector, tax-receiver, county treasurer, county
surveyor, or coroner, or either of them, shall be-
come vacant by resignation, death, or the removal
of the officer before the expiration of his term,
the successor to said officer shall be elected
or appointed only for the remainder of said un-
expired term. Acts 1872, p. 82.
See §§ 261, 567, 4881, 4886.
§ 265(1). Appointees to unexpired terms,
hold over when.. — Where any person is appointed
to fill a vacancy in the office of Judge, Solicitor or
Clerk of any court of this State under a law
which provides that such appointee shall fill out
the unexpired term, in which such vacancy oc-
curred, if at the end of such unexpired term, the
person elected to fill such office shall not be
qualified to take it, or if the person elected to fill
such office shall have died prior to the end of
such unexpired term, or if a vacancy occurs from
any other cause, then the person appointed to fill
out such unexpired term shall continue in office
during the term succeeding that in which such
vacancy occurred, providing there is no other
provision in law for filling such term. Acts 1911,
p. 169.
Not Applicable to Certain City Court Solicitor.— The Act
of 1911 (this section) does not apply to the case of the
appointment of a city court solicitor for Springfield; and
the Governor was authorized to appoint the relator as so-
licitor at the time this was done. Tarver v. Usher, 149
Ga. 536, 101 S. E. 118.
ARTICLE 4.
Resignation.
(§ 231.) Resignation of the Governor.
— The resignation of the Governor must be
transmitted by him to the General Assembly, if
in session; if not in session, to the secretary of
State, who must on the same day notify the Presi-
dent of the Senate. If the office becomes vacant
by death, or any other cause, when the General
Assembly is not in session, the secretary of State
must inform the President of the Senate. In
either case, the President of the Senate, when
informed, shall within ten days repair to the
capital and take the oath of office before any
judge of the Supreme or judge of the Superior
court, and the General Assembly, if in session;
which fact shall be entered on the minutes of the
Executive Department. If he does not so appear
in said time, he shall be considered as having
resigned, and the secretary of State shall ( then,
or in case there is no President of the Senate,
inform the Speaker of the House of Representa-
tives, and the proceedings shall be the same.
See § 6477.
§ 267. (§ 232.) What officers report their res-
ignation to the Governor. — The resignation of
senators and representatives in Congress, and
members of the General Assembly, and of all
officers whose commissions issue from the office
of secretary of State or the Executive Depart-
ment, and whose places may be supplied by execu-
tive appointment, shall be made to the Gover-
nor.
See §§ 262, 263, 567, 4881.
ARTICLE 5.
Year for Official Reports and Fiscal Year
Coincident.
§ 268. (§ 233.) Official coincident with fiscal
year. — The year for official reports shall be coin-
cident with the fiscal year, and it is the duty of
the public officers of this State to make and pub-
lish, annually, their official reports for the period
commencing on the 1st day of January and end-
ing on the 31st da}' of December of each year,
inclusive. Acts 1902, p. 25.
See §§ 231, 413.
CHAPTER 2.
Official Oaths.
§ 269. (§ 234.) Additional oath of public of-
ficers.—All public officers, besides the oath of
office and the oath prescribed by the Constitution
(if any), shall swear that he is not the holder
of any public money due this State, unaccounted
for; that he is not the holder of any office of
[ 66
§ 270
OFFICIAL BONDS AND SURETIES THEREON
§ 280
trust under the government of the United States
(except postmaster), nor either of the several
States, nor of any foreign state, and is otherwise
qualified to hold said office according to the Con-
stitution and laws of Georgia, and will support
the Constitution of the United States and of this
State; and, if elected by any circuit or district,
that he was a resident thereof for the time re-
quired by the Constitution and laws (stating the
time.)
See §§ 4779, 4835, 4889, 4905, 6107, 6682.
§ 270. (§ 235.) Form of oath to be sent with
dedimus. — The form of said oath, as well as the
oath of office, to be taken and subscribed, must
be forwarded with the dedimus potestatem, and
be taken and subscribed at the time of receiving
the commission, before the officer to whom the
same is directed, and in conformity to the direc-
tions.
§ 271. (§ 236.) Official oaths, before whom
taken. — When not otherwise provided by law, and
not directed in the dedimus potestatem, the
oaths of office may be taken before any officer
authorized by law to administer an oath. Such
oaths must be written out and subscribed by the
person taking :'them, and laccompanied by the
certificate of such officer, specifying the day and
year when taken.
• § 272. (§ 237.) Official oaths must be filed in
Executive office, when. — Such oaths, when taken
by an officer whose general duties are not con-
fined to any one county (unless otherwise
specially provided), must be filed, with the certifi-
cate required by the preceding section, in the
Executive office; and when taken by an officer
whose duties are confined to one county, as
provided in the next section.
§ 273. (§ 238.) Official oaths filed in ordi-
nary's office, when. — When taken by the ordi-
naries and the "clerks of the superior courts, they
must be filed in the office of the clerk of the
superior court, and also entered on the minutes
of their respective courts. When taken by
sheriffs, they must be likewise filed in the office of
the ordinary, and must be entered on the minutes
of the superior courts; and when taken by coro-
ners, tax-collectors or receivers, country treasurer,
justices of the peace or constables, or any other
county officer, they must be filed in the office of
the ordinary, who must enter them on the minutes
of his court.
§ 274. (§ 239.) Official oaths, time of filing.—
The officer in whose office such oaths are filed
must indorse thereon the day and year of filing.
§ 275. (§ 240.) Oath of deputies.— All depu-
ties, before proceeding to act, must take the same
oaths as their principals take, which must be filed
in and entered on the minutes of the same office,
and with the same indorsement thereon; but
these provisions do not apply to any deputy who
may be employed in particular cases only.
Agents or representatives who are employed in particu-
lar matters only are not deputies in contemplation of this
section. But it applies to deputy clerk. Ballard v. Orr, 105
Ga. 191, 195, 31 S. E- 554.
§ 276. (§ 241.) Failure to file official oath.—
No officer or deputy, required by law to take and
file such oaths, shall enter upon the duties of his
office without first taking and filing the same in
the proper office.
See 10 Enc. Dig. 685. See also §§ 264, par. 6 and note 287.
§ 277. (§ 242.) Official acts of officers valid,
when. — The official acts of an officer are not the
less valid for his omission to take and file the
oath, unless in cases where so specially declared.
See §§ 258, 276; P. C. 273. See also 9 Cum. Dig. 678; 4
Enc. Dig. 351.
The acts of a deputy clerk who has not taken oath are
as effective in matters either civil or criminal as if he were
regularly qualified. Gunn v. Tackett, 67 Ga. 725; Brooks
v. Rooney, 11 Ga. 423; Eedbetter v. State, 2 Ga. App. 631,
58 S. E. 1106. See also Strickland v. Strickland, 24 Ga. App.
200, 100 S. E. 230.
The acts of jury commissioners who have not taken oaths
when the list was drawn are valid. Rosenblatt v. State,
2 Ga. App. 649, 651, 58 S. E. 1107.
A process served by a deputy sheriff who had not taken
or filed oath is valid. Stephens v. State, 106 Ga. 116, 32
S. E. 13.
A bailiffs official acts are not invalid because he failed
to take and file oath. Gunn v. Tackett, 67 Ga. 725, 726.
Jury Presided over by Unsworn Bailiff. — Before a ver-
dict will be set aside upon the ground that the bailiff who
attended the jury while they had the case under consid-
eration was not sworn, this fact must affirmatively appear
Johnson v. State, 27 Ga. App. 679, 109 S. E. 526.
CHAPTER 3. .
Official Bonds and Sureties Thereon.
ARTICLE 1.
Execution and Approval.
§ 278. (§ 243.) Official bonds, to whom pay-
able.— The bonds of all public officers required
by law to give bond, unless otherwise provided,
must be made payable to the Governor of the
State of Georgia and his successor in office, with
such sureties as the approving court or officer is
satisfied are sufficient, and conditioned, in all
cases in which a different condition is not pre-
scribed, faithfully to discharge the duties of such
office during the time he continues therein or
discharges any of the duties thereof.
See §§ 4 (8), 12, 291.
See also, 10 Enc. Dig. 686, 687. As to whom bond of
deputy is payable, see § 294.
Public officer defined. Bradford v. Justices, 33 Ga. 332.
Necessity of Assignment to Successor. — A bond made
payable to the Governor, or to the Governor and his suc-
cessors passes to the successors without assignment for it
is made to the office. Stephens v. Crawford, 1 Ga. 574;
Anderson v. State, 2 Ga. 370; Howard v. Crawford, 15
Ga. 423; Beckwith v. Rector, 69 Ga. 564, 575; Anderson v.
Burmby, 115 Ga. 644, 42 S. E. 77.
State depositories are not public officers in the sense of
this and the following sections (§§ 278-302). Colquitt v.
Simpson, 72 Ga. 501, 509.
§ 279. (§ 244.) Official bond, sent with dedi-
mus.— Official bonds of all officers who are en-
titled to commissions from the Governor, and
who are required to give bonds, must be prepared
and furnished by the Executive Department at the
time of forwarding the dedimus potestatem.
See note to § 278.
§ 280. (§ 245.) Official bonds must be ap-
proved.— The approval of all official bonds shall
be in writing, indorsed on the bond, and should
show the day and year on which the same are ap-
proved, and shall not be filed until thus approved.
See note to § 278.
[67]
§ 281
FILING OFFICIAL BONDS
§ 287
ARTICLE 2.
Sureties on Bonds.
§ 281. (§ 246.) Sureties on official bonds. —
Such bonds shall not be approved by the approv-
ing officers unless they have at least two good
and solvent sureties (who shall be worth the
amount of said bond, over and above the home-
stead, in case of county officers), and not more
than twenty, all of whom must be permanent resi-
dents of the State, and two also of the county,
and freeholders thereof. When said approving
officers do not of their own knowledge know that
a surety is worth enough to enable them to ac-
cept him, they shall not take him unless he
swears to his means, and it is satisfactory, of
which swearing they shall make a minute on the
bond. Acts 1863-4, p. 124; 1S89, p. 45.
See note to § 278. See also, 8 Cum. Dig. 400; 10 Enc.
Dig. 687.
Editor's Note. — When the original code, which took ef-
fect January 1, 1863, was adopted, it was required that of-
ficial bonds of public officers should not be approved un-
less they had at least two good and solvent sureties and
not more than five, all of whom should be permanent resi-
dents of the State, and two also of the county, and free-
holders thereof. The number permitted was later made
ten (Acts 1863-4, p. 124), and afterwards twenty (Acts 1889,
p. 45). In 1889 guaranty or security companies incorpo-
rated under the laws of this State were allowed to become
one of the sureties br the only surety on official bonds of
State or county officers, as the solvency of the company
might warrant (Acts 1889, p. 178). See Fidelity, etc., Co.
v. Butler, 130 Ga. 225, 236, 60 S. E. 851.
What Sureties Must Be Freeholders.— All sureties, other
than guarantee and surety companies, on a sheriff's bond
"must be permanent residents of the State, and two also
of the county, and freeholders thereof." A petition for man-
damus to require the ordinary to approve the bond of a
sheriff, which does not allege these requirements, is fatally
defective. Partin v. Smith, 146 Ga. 35, 90 S. E. 478.
§ 282. (§ 247.) Guarantee companies may be-
come surety on bonds of officers. — Guarantee or
security companies incorporated under the laws
of this State may become security upon the bonds
of all State or county officers, and the various
officers of this State, whose duty it is to approve
the sureties upon such bonds, are authorized to
accept such company or companies as one of the
sureties or the only surety upon such bond as the
solvency of such company may warrant. Acts
1889, p. 178.
See note to § 281 and § 278. See also 10 Enc. Dig. 687.
Personal Sureties Still Allowed. — Under the provisions of
this section and § 2554, guaranty and fidelity companies
possessing certain qualifications were permitted to become
sureties on such bonds; but they obviously were not in-
tended to impair the privilege of giving personal sureties
under the general laws embraced in §§ 1207-1209, 291, 292.
Maloy v. Williams, 140 Ga. 376, 379, 78 S. E. 1054.
§ 283. (§ 248.) Officers shall not be surety
for each other. — No attorney or county officer
shall be received as security on the bond of any
county officer. Acts 1876, p. 13.
See note to § 278.
ARTICLE 3.
Power o£ Attorney.
§ 284. (§ 249.) Attorney in fact may execute
official bond. — When an official bond is signed by
an attorney in fact, the power of attorney must
be attested by the ordinary and filed and recorded
as the bond is.
[
ARTICLE 4.
Filing Official Bonds.
§ 285. (§ 250.) Within what time official bonds
must be filed. — The official bonds of public of-
ficers, required by law to be filed in the office of
comptroller, secretary of State, or Executive De-
partment, must be filed therein within forty days
after the election or appointment of such officer;
all county officers shall have until the first day
of January next after the election to file their
several bonds as required by law. Acts 1898, p.
105.
See 10 Enc. Dig. 685. See also note to § 278. As to bonds
of State officers affected by this section, see §§ 206, 210, par.
4, 220, 238, 245. See also § 238, par. 11.
Editor's Note. — This section appeared in the Code of 1863,
the first part (down to the semi-colon) being the same as
in this Code. But the latter part of the section provided
in that Code that all bonds filed in the offices of the clerk
of the Superior Court or the Ordinary should be filed within
30 days, and all other bonds within 20 days. (See Cobb's
Digest, p. 200, Acts 1811, § 15, Acts 1823, § 40, Acts 1826).
It remained unchanged until the Code of 1910, except that
the Code of 1873 added a proviso from the Acts of 1863-64,
p. 124, extending the time for filing the bonds of certain
enumerated officers until April and June, respectively, after
election, but this proviso was repealed by the Acts of 1875,
p. 16. By the Acts of 1898, p. 105 that part of this section
following the semi-colon was enacted, the Code of 1910
omitting the part of the section dealing with bonds to be
filed in the offices of the Ordinary or the Clerk of the Su-
perior Court and all other bonds, and adding this instead.
For a discussion of former laws, see Prothro v. Orr, 12
Ga. 36.
Section Not Literally Construed.— This section in regulat- '
ing the time within which the bonds of county officers shall
be filed, fixes it at so many days (under prior codes, see
Editor's Note above) from the election or appointment.
But this has never been literally construed. It often hap-
pens that the election is contested, sometimes the mail
fails, sometimes the commissions lie in the office through
fault of the Ordinary.
The practice generally has been to notify officers that
their commissions have arrived, and it has not been usual
to consider the office vacant until this notice has been
given; and this upon the idea that the officer has not failed
until he has notice that the Ordinary is ready, prepared
by the presence in his office of the commission, to take the
bond and administer the oath. See the case of Bassett v.
Governor, 11 Ga. 207; Ross v. Williamson, 44 Ga. 501, 504.
Same — Officer Must Be in Default. — The fact that an offi-
cer elect does not give his bond within time is not suffi-
cient to work a forfeiture of the office; it must appear that
it was his fault or failure to file it in time. The petition
in this case is not sufficient, for it ought to have set forth
that the delay was by his default. Ross v. Williamson, 44
Ga. 501.
Same — Effect of Failing to File Bond on Time. — When
an officer fails to file his bond within the time required by
this section (though it might not be a statutory bond un-
der it, see Mayo v. Renfroe, 66 Ga. 408, 433), the filing of
a bond thereafter operates as his bond under § 298. County
v. Clarke, 73 Ga. 665, 666. See § 298.
Must Comply with Section to Be Statutory Bond. — The
bond was not executed within forty days from the elec-
tion of the treasurer. It can not, therefore, be said to be
a statutory bond; to make a valid statutory bond there
must be a rigid compliance with the statute. Mayo v.
Renfroe, 66 Ga. 408, 433. Note the effect of the paragraph
immediately preceding. See § 298.
§ 286. (§ 251.) Failure to file official bond.—
When any officer of whom bond is required fails
to make and file the same as prescribed in the
preceding section, it is the duty of the court, or
officer in whose office it is required to be filed, at
once to certify such failure to the appointing
power, and to the power whose duty it may be
to order an election.
See § 264, par. 6. See also note to § 278.
§ 287. (§ 252.) Acting before filing bond. —
No public officer required by law to give bond
68 ]
§ 288
BONDS; HOW FAR, FOR WHAT BINDING
§ 291
shall perform any official act before his bond is
approved and filed as required.
See §§ 264, par. 6 and note, 276, 277, 302, the note to §
278; P. C. 275. See also 10 Enc. Dig. 685.
Editor's Note. — This section appeared in the Code of 1863
providing that a violation was a misdemeanor and punish-
able with not less than a $500 fine. By the Acts of 1895,
p. 63, it was made punishable as all misdemeanors under
§ 1065, Penal Code. With the Code of 1895 the penal pro-
vision was removed to the Penal Code and is to be found
under § 275 P. C.
Applicable to Sheriff — Inapplicable to Deputy. — By re-
quirements of the code, the bonds of sheriffs have to be
approved as well as filed and recorded; but the bonds of
their deputies, though required to be taken and recorded,
do not have to be approved. Hence, this section and § 275
of the Penal Code apply to sheriffs, but are not applicable
to their deputies. Stephens v. State, 106 Ga. 116, 32 S. E.
13. See §§ 280, 294.
§ 288. (§ 253.) Indorsement on official bond.
— Every officer in whose office the official bond
of any public officer is filed must indorse on such
bond the day and year when the same was filed,
and sign his name to such indorsement.
See § 274, and note to § 278.
§ 289. (§ 254.) Notice of failure to file bond.
— If any public officer required by law to give
bond fails to file the same, within the time here-
inbefore prescribed, in the proper office, notice of
such failure must be given by the officer in whose
office such bond is required to be filed, by or
during the two first days of the session of the
superior court held in the county in which the
officer so failing resides, next after such failure,
to the attorney or solicitor-general of the circuit.
See note to § 278.
§ 290. (§ 255.) Penalty for failure to mark-
file and give notice. — Any officer whose duty it
is to mark-file the bond and to give the several
notices required in this Article and failing to do
so, without good and sufficient excuse therefor,
shall, on information rendered and citation to ap-
pear before the superior court of the county of
his residence, be fined as for a' contempt in the
discretion of the court.
See note to § 278.
ARTICLE 5.
Bonds; How Far, and for What, Binding.
§ 291. (§ 256.) Official bonds obligatory.—
Ev*ery official bond executed under this Code
is obligatory on the principal and sureties there-
on— ■
See §§ 12, 278 and note, 296, 300, 854, 5596. In addition,
see 9 Cum. Dig. 681; 10 Enc. Dig. 690, 691.
This section relates to the bond of every officer. Jeffer-
son v. Hartley, 81 Ga. 716, 718, 9 S. E. 174; Maloy v. Wil-
liams, 140 Ga. 376, 78 S. E. 1054.
Section a Part of Every Bond. — The bond executed by
the sheriff and his sureties is to be dealt with as if the
provisions of this section were expressly written therein.
Harris v. Black-, 143 Ga. 497, 508, 85 S. E- 742.
Liability Based upon Breach of Contract. — The liability of
the sheriff and his sureties to the plaintiff under this sec-
tion for the tort complained of was for breach of con-
tract evidenced by the bond, notwithstanding the tort was
based on an act of misfeasance by the sheriff. Harris v.
Black, 143 Ga. 497, 508, 85 S. E. 742.
Defect of Applicability by Terms — Municipal Officers. — The
company agreed with the city in the bond to pay any loss
the latter might sustain by reason of H's fraud or dis-
honesty, and the obligation is hedged about with many con-
ditions and limitations. Not being a statutory bond, this
obligation must be dealt with as a common-law bond. Be-
ing a bond of this nature, it makes the company liable
under its provisions only, and this section can not pos- 1
sibly be applied to such a bond, even if it can ever be ap-
plied to the bonds of officers of municipal corporations.
(See note to § 12.) Mayor v. Harvey, 114 Ga. 733, 735, 40
S. E- 754.
Necessity of Preliminary Recovery. — No preliminary re-
covery against the sheriff for the wrong is requisite to en-
title the injured party to sue on the bond. Jefferson v.
Hartley, 81 Ga. 716, 9 S. E. 174; Roberts v. Smith, 16 Ga.
App. 760, 85 S. E. 988.
1. For any breach of the condition during the
time the officer continues in office or discharges
any of the duties thereof.
The official bond of the former treasurer of the county
did not impose upon his sureties any obligation with ref-
erence to the county funds received by him after his term
of office from his successor. Fannin County v. Daves, 23
Ga. App. 220, 98 S. E. 104.
Where the old sheriff fails to deliver to his successor an
execution placed in his hands during his term of office, and
receives money thereon after the appointment and qualifi-
cation of the new sheriff, his securities are not liable in an
action on the bond. McDonald v. Bradshaw, 2 Ga. 248.
2. For any breach of the condition by a deputy,
although not expressed, unless otherwise declared
by law.
3. For the faithful discharge of any duties which
may be required of such officer by any law passed
subsequently to the execution of such bond, al-
though no such condition is expressed therein.
A sheriff's bond is obligatory on the principals and sure-
ties thereof for any breach of the condition by a deputy,
although not expressed, unless otherwise declared by law,
and for the use and benefit of every person who is injured,
as well by any wrongful act committed under color of his
office as by failure to perform, or by the improper or neg-
lectful performance of those duties imposed by law. Rob-
ertson v. Smith, 16 Ga. App. 767, 85 S. E. 991.
4. For the use and benefit of every person who
is injured, as well by any wrongful act com-
mitted under color of his office as by his failure
to perform, or by the improper or neglectful per-
formance of those duties imposed by law.
See §§ 297, 5394.
"Color of office" is defined to be "a pretense of official
right to do an act, made by one who has no such right.
Luther v. Banks, 111 Ga. 374, 377, 36 S. E. 626.
Necessity of Negligent Performance or Colore Officii. —
"The clerk, under the law, is liable for an injury sustained
by any person by reason of his failure to perform, or by
the improper or negligent performance of any of the duties
required of him by law." Collins v. McDaniel, 66 Ga. 203,
204.
But if the act be neither by virtue of office nor under
color thereof, there is no official misconduct and no breach
of the official bond. Renfroe v. Colquitt, 74 Ga. 618; Rob-
ertson v. Smith, 16 Ga. App. 760, 762, 85 S. E. 988.
Same — Liability for Deputy. — Suit may be brought upon
the sheriff's bond for any wrongful act "committed under
color of his office" by himself or his deputy, as well as for
the improper performance of a duty imposed by law. See
§ 295. Robertson v. Smith. 16 Ga. App. 760, 762, 85 S. E.
988; Robertson v. Smith, 16 Ga. App. 767, 85 S. E. 991.
When Acts Are Colore Officii. — "An officer's acts are
done colore officii when they are of such a nature that his
official position does not authorize the doing of such acts
though they are done in a form that purports they are done
by reason of official duty and by virtue of his office." Rob-
ertson v. Smith, 16 Ga. 767, 769, 85 S. E. 991.
May Sue Personally or on Bond. — "Construing this sec-
tion it was ruled in Markham v. Ross, 73 Ga. 105, that if a
plaintiff has been injured and suffered damage in conse-
quence of the neglect of the clerk of the superior court, he
may sue him personally, or upon his official bond, and re-
cover the amount of the damage sustained." Luther v.
Banks, 111 Ga. 374, 377, 36 S. E. 626.
Same — Illustrations. — Where the sheriff levied upon prop-
erty and sold it by virtue of a dormant judgment, such acts
were under color of office for which the bond is obligatory.
Harris v. Black, 143 Ga. 497, 501, 85 S. E. 742.
If the sheriff, in executing a writ of possession, remove
from the premises any person not mentioned in the writ
and not within its legal operation according to § 3638 of the
Code, such removal amounts to official misconduct, and he
thereby subjects himself and his sureties to an action upon
[69]
§ 292
INFORMALITIES DO NOT VITIATE BONDS
§ 298
his official bond at the suit of the person so aggrieved.
Jefferson v. Hartley, 81 Ga. 716, 9 S. E. 174.
Where a sheriff collects money under a void process, he
may be, in some instances, liable as an individual, and pos-
sibly upon his official bond. McDonald v. Sowell, 129 Ga.
242, 244, 58 S. E- 860.
ARTICLE 6.
Bonds to be Recorded.
§ 292. (§ 257.) Official bonds, by whom ap-
proved and recorded. — The official bonds of the
clerks of the superior court, of sheriffs, coroners,
county surveyors, count}'- treasurers, tax-collect-
ors and receivers, given for county taxes, must be
approved by the ordinary and filed in his office,
and by him recorded. The bonds of tax-collect-
ors and receivers for State taxes, after being like-
wise approved, must be recorded by the ordinary,
and the original bond must be by him trans-
mitted to the Governor for deposit in the comp-
troller-general's office.
See note to § 278. See also 10 Enc. Dig. 689.
This section is general law applicable in all the counties
of the State, and applies to the office of tax-collector. Ma-
loy v. Williams, 140 Ga. 376, 378, 78 S. E- 1054.
The ordinary acts ministerially, as public agent, in ac-
cepting the bond and can not make private arrangement
with sureties whereby delivery is conditional. Lewis v.
Board, 70 Ga. 486, 496.
The law requires the bond of the sheriff to be approved
and if he performs any official act before his bond is ap-
proved by the ordinary and filed, § 275 of the Penal Code
applies to him. Stephens v. State. 106 Ga. 116, 118, 32 S.
E- 13.
The law does not require the deputy-sheriff's bond to be
approved. Stephens v. State, 106 Ga. 116, 32 S. E- 13.
§ 293. (§ 258.) Ordinary must certify to the
Governor.— Such ordinary must sign a certificate
to the Governor, stating that the clerks of the
superior courts, the sheriffs, coroners, and county
surveyors have taken the oaths and given the
bonds sent from the Executive Department, to-
gether with a statement of the dates, amounts,
and names of the sureties of each, and that they
have delivered to them their commissions; which
shall be attested by the clerk of said court, and
by him immediately transmitted to the Governor.
See note to § 278. In addition, see 10 Enc. Dig. 689, 690.
§ 294.
ARTICLE 7.
Bond of Deputy.
(§ 259.) Bond of deputy, to whom pay-
able.— When deputies give a bond, they must be
payable to their principals, with surety, conditioned
as theirs are, for their conduct as deputies, for the
same amounts, and must be recorded in the same
office and in the same manner as the bonds of the
principals.
See §§ 278, 4912. In addition, see 10 Enc Dig. 687.
While the law requires a deputy-sheriff to give bond to
his principal, it does not require that such bond be ap-
proved. Stephens v. State, 106 Ga. 116, 118, 32 S. E. 13.
It must be noted that the provisions of this and the fol-
lowing sections can not apply to an agent or representative
or any person who may be employed in particular matters
only. Such a person is not a deputy, in contemplation of
the code. Ballard v. Orr, 105 Ga. 191, 31 S. E- 554.
his, in the same manner as the principal's bond
may be sued.
See §§ 278, 291, 294, and notes thereto. See also §§ 4905,
4912. See 10 Enc. Dig. 692.
If, the petition sufficiently charges official misconduct on
the part of the deputy, the suit upon the sheriffs bond
can be maintained. Robertson v. Smith, 16 Ga. App. 760,
761, 85 S. E- 988.
But where the deputy pays the money to plaintiffs attor-
ney and then borrows part of it back, the sheriff is not lia-
ble. Odom v. Gill, 59 Ga. 180.
Sureties to a bond given by a deputy to his principal,
may plead any thing which their principal could plead in
denial of his liability on the bond, and their liability is
commensurate with his. Wallace v. Holly, 13 Ga. 389.
§ 295. (§ 260.) Deputy suable same as princi-
pal.— It shall be at the option of any person who
claims damages of any principal officer for the act
of his deputy, to sue said deputy's bond instead of
[70]
ARTICLE 8.
Satisfaction and Discharge of Bonds.
§ 296. (§ 261.) * Bond, when discharged. — Such
bonds are not discharged by a single recovery, but
proceedings may be had from time to time, until the
whole penalty is exhausted, against the officer and
his sureties, or either, and said bonds are joint or
several, whether so set forth or not. Act 1847, Cobb,
503.
See §§ 278, 5940 and notes thereto.
Extent of Liability of Sureties. — The sureties of a sher-
iff, after recoveries have been had against them to the
amount of their bond, may defend themselves at law against
all pending or future suits on that ground. Bothwell v.
Sheffield, 8 Ga. App. 569; Lane v. Harris, 16 Ga. 217.
Several Liability. — The suit as an action on the bond
was maintainable against the surety company, without pro-
ceeding against the sheriff or his estate. See §§ 4906,' 5596;
Morrison v. Slaton, 148 Ga. 294 (96 S. E- 422); Cone v.
American Surety Co., 29 Ga. App. 676, 679, 116 S. E- 648.
§ 297. (§ 262.) Officer liable though penalty
exhausted. — When the penalty is exhausted, the
officer himself shall still be liable, and upon the
same measure of damages as upon his bond, and
he is likewise liable for any damage he may do in
undertaking to discharge the duties of an office
without having given the necessary bond, or, hav-
ing given one, it is invalid in whole or in part.
See note to § 278. As to measure of damages, see § 299
and 10 Enc. Dig. 692.
ARTICLE 9.
Informalities do Not Vitiate Bonds.
§ 298. (§ 263.) Bonds valid though not in
conformity to law.— .Whenever any officer, required
by law to give an official bond, acts under a bond
which is not in the penalty paj'able and conditioned,
nor approved and filed as prescribed, by law, such
bond is not void, but stands in the place of the
official bond, subject, on its condition being broken,
to all the remedies, including the several recoveries,
which the persons aggrieved might have maintained
on the official bond.
See §§ 4, par. 7, 12, 13, 278 and notes thereto. In addi-
tion, see 10 Enc. Dig. 688, 689.
Editor's Note. — The meaning of this section is to be
gathered from the earlier decisions of the court, whence
the codifiers drew k. Those decisions were that the bonds
were valid, though not in accordance with the statute, but
when one recovery was had on the bond for the benefit
of one person aggrieved, then it was exhausted, and all
others, however much damaged, were remediless. In cod-
ifying these decisions, the compilers, in order to correct
this hardship, following the Alabama code, by direction of
the statute which created them, gave these remedies to all
suitors successively until the penalty was exhausted. See
Stephens v. Crawford, 3 Ga. 499; Anderson v. -Brumby,
§ 298
MEASURE OF DAMAGES ON BONDS
§ 299
115 Ga. 644, 42 S. E- 77: Prothro v. Orr, 12 Ga. 36 for earlier
decision. Mayo v. Renfroe, 66 Ga. 408, 434.
Effect of Section. — This section makes the bond a stat-
utory bond, which in all respects is to be considered the
official bond of the tax collector, and stands in the place
of the bond which might have been given by that officer
within the time prescribed by law, subject to the same
remedies. County v. Clarke, 73 Ga. 665, 666.
"Reading in" Required Conditions. — The court will not
read into a bond, which is made to a city and hedged about
with many conditions repugnant to the law requiring it,
all the conditions prescribed for statutory bond. Mayor v.
Harvey, 114 Ga. 733, 736, 40 S. E. 754.
An official bond, though not conditioned as the statute
prescribes, will, under this section be considered as if ex-
ecuted in conformity to the statute. Smith v. Taylor, 56
Ga. 292-293.
Same — Bond Made to Another Than Statutory Obligee. —
Where an officer gives a voluntary bond to a person dif-
ferent from the one prescribed by statute, it is not void
under this section, but stands in the place of the official
bond, subject, on its condition being broken, to all the rem-
edies which could have availed the persons aggrieved had
the official bond been given. Anderson v. Blair, 118 Ga.
211, 212, 45 S. E. 28.
Validity of Unaccepted Bond Already Acted upon. — A
bond, whether the ordinary has approved it in writing or
not, and whether he has recorded it or not, is to be treated,
after the tax collector has acted upon it, and received the
county taxes for the year in which it was given, as though
it were the official statutory bond which should have been
taken, approved and recorded, and execution may issue
thereon against the tax collector and all his sureties. Dedge
v. Branch, 94 Ga. 37, 20 S. E. 657.
Construing this section with §§ 12 and 13, any person ag-
grieved by the sheriff tailing to pay over money may main-
tain action on bond where it appears he gaye no other bond
but acted under it. Kirkland v. Southerland, 11 Ga. App.
538, 75 S. E. 832.
Application to Bonds Other Than Those of Public Offi-
cers.— While this section does not apply the bonds of ad-
ministrators, etc., we cite it for the purpose of showing
the intention of the legislature where defective bonds have
been given by public officers; and we see no reason why
the spirit of this section should not only apply in cases
where it was the intention of all the parties to give the
proper bond, and a mistake was made by the clerk in writ-
ing one name for the other. White v. Spillers, 85 Ga. 555,
559, 11 S. E. 616.
A public work contractor's bond has been held to be
within a statute prescribing, like this section, that defects
in official bonds shall not vitiate them. (Dissenting opin-
ion, Hines. J.) American Surety Co. v. Small Quarries
Co., 157 Ga. 33, 37, 120 S. E. 617.
Same — Policy to Require Substantial Compliance. — "The
policy of .the law as to all bonds required by statute, and
especially as to bonds of guardians, administrators, and
like trustees, is to disregard mere formalities, and to re-
quire only substantial compliance to secure all statutory
remedies to persons iniured by their breach." United States
Fidelity, etc., Co. v. Davis, 2 Ga. App. 525, 529, 58 S. E-
777.
Who May Maintain Suit on Defective Bond. — This sec-
tion does not undertake to prescribe at whose suit a defec-
tive bond is to be enforced. Anderson v. Brumby, 115 Ga.
644, 647, 42 S. E. 77.
Same — Named Obligee or Personal Representatives. — The
obligee named in a bond given to a person different from
the one described by the statute, or his personal repre-
sentatives, are the only persons who can maintain action
thereon. Anderson v. Blair, 118 Ga. 211, 212, 45 S. E. 28.
The summary remedy of the Act of 1876, against the
treasurer was not in the contemplation of this section, for
it was enacted long afterwards. Mayo v. Renfroe, 66 Ga.
408.
ARTICLE 10.
Measure of Damages on Bonds.
§ 299. (§ 264.) Measure of Damages. — The
measure of damages upon all official bonds for the
misconduct of the officer, unless otherwise specially
enacted, shall be the amount of injury actually sus-
tained, including the reasonable expenses of the suit
of the plaintiff, besides the costs of court; but in all
cases when little or no damage is actually sustained
[7
and the officer has not acted in good faith, the jury
may find for the plaintiff an amount, as smart-
money, which, taking all the circumstances to-
gether, shall not be excessive nor oppressive.
See §§ 12, 291, 4391-93, 5394. See also the note to § 278.
In addition, see 10 Cum. Dig. 322; 10 Enc. Dig. 692.
Editor's Note. — In Crawford v. Andrews, 6 Ga. 244, Mr.
Justice Lumpkin held that in case of an escape on a mesne
process "the injury actually sustained by the plaintiff, and
not the specific amount of his debt," is the measure of
damages in an action on a sheriff's bond. In Crawford v.
Word, 7 Ga. 445, the same judge held that the measure of
damages in case of a sheriff failing to levy an execution
is the amount of the execution; and neither the sheriff nor
his sureties in an action on the bond will be permitted to
prove, in order to reduce the recovery to the damage ac-
tually sustained, the insolvency of the debtor and that there
were outstanding prior liens sufficient to cover the proceeds
of the property upon sale. This latter case involved wil-
ful dereliction of duty. In Taylor v. Johnson, 17 Ga. 521,
it was held by Mr. Justice Lumpkin that "the defendant
is liable to no greater damages than the plaintiff has sus-
tained, to be ascertained by the jury." lie there said,
"I wish it were in my power to uphold and maintain the
doctrine in 7th Ga. Reports in all its stringency but to
do so would be to assume legislative function." He then
proceeds to show that at common law the whole penalty
was recoverable, notwithstanding it far exceeded the in-
jury sustained; that to remedy this the Statute of 8 and 9
William III, ch. 11 was enacted; that this Statute has
been adopted in Ga.; that it provided that the measure
of damages was the amount of injury actually sustained.
In Dobbs v. The Justices, 17 Ga. 624, 632, 633, it was held,
Mr. Justice Lumpkin again delivering the opinion, that
"The amount of the debt is, prima facie, the measure of
damages; it may be the actual loss of the parties injured."
(See Governor v. Raley, 34 Ga. 173, 177.) It was held that
if the wrong be wilful the jury may add to the debt the
costs and expenses incurred; that it is also competent for
the officer to mitigate by proving the plaintiff had suf-
fered nothing or but little from the unintentional fault. If
the wrong be not wilful or fraudulent, and the defendant be
not placed in a worse condition than he would have been,
it will be the duty of the jury to see that the officer pays
no more damages than the plaintiff has suffered. In the
latter class the defendant may prove insolvency of the
debtor or any other reason why the plaintiff was not dam-
nified.
This section seems to be a codification of the law on
this subject as found in Taylor v. Johnson, 17 Ga. 521,
and Dobbs v. The Justices, 17 Ga. 624.
Presumption of Amount of Damage — Final Process. — In a
suit on a sheriff's bond for failure to execute or return
final process, the presumption is that the plaintiff has been
damaged to an amount equal to the execution, and the
burden is upon the defendants to mitigate' the damages or
show that the plaintiff was not injured by the breach of
official duty. Beck & Gregg Hardware Co. v. Knight, 121
Ga. 287, 48 S. E. 930.
Same — Mesne Process. — But in a suit for damages for
failing to execute an attachment or other mesne process,
there is no such presumption, and the burden is upon the
plaintiff, who must allege and prove actual damages in
order to recover on the bond. Beck & Gregg Hardware
Co. v. Knight, 121 Ga. 287, 48 S. E. 930.
Extent of Liability — Loss Must Be Proximate Result. —
The sum named in the bond is the maximum extent of lia-
bility and does not fix the measure of damages. The meas-
ure of damages for the misconduct of an officer, is the
amount of the injury actually sustained, including the rea-
sonable expenses and costs. If the loss alleged to have been
sustained was not the proximate result of the misconduct,
and would have been sustained had the clerk been guilt-
less of such misconduct, the sureties on his bond are not
answerable for the loss. Terrell v. McLean, 130 Ga. 633.
61 S. E. 485.
Same — Responsibility of Sureties on Treasurer's Bond. —
The sureties on the bond of a county treasurer are re-
sponsible for lawful money coming into his hands, but are
not liable for money unlawfully borrowed by county officials
and coming into his hands. Mason v. Commissioners, 104
Ga. 35, 30 S. E. 513.
When Dismissal of Action Erroneous. — Where suit was
brought on the official bond of a sheriff on account of a
void sale, and where the allegations were sufficient to au-
thorize a submission to the jury of the good or bad faith
of the sheriff under this section, it was erroneous to dis-
miss the action. Harris v. Black, 143 Ga. 497, 85 S. E.
742.
1]
§ 300
CONTRACTS WITH STATE INSTITUTIONS
§ 303(1)
ARTICLE 11.
Provisions Applicable to All Official Bonds.
§ 300. (§ 265.) This and the preceding Article
apply to all official bonds. — All the provisions of
this Chapter apply to the oaths of office and the of-
ficial bonds of all public officers of this State, or
those whose office may be established hereafter, un-
less the contrary is expressly provided.
See §§ 12, 278, 291, 540, and notes thereto.
ARTICLE 12.
Sureties, How Relieved.
§ 301. (§ 266.) Sureties, how relieved. — When
the surety to any bond, given by any officer for
the performance of any public duty, shall give no-
tice, in writing, to the Governor, of his desire to
be relieved from future liability, for good cause
therein stated and sworn to (of which the Gov-
ernor shall be the judge), or any such surety
shall, in the opinion of the Governor, formed upon
satisfactory evidence, become insufficient, it shall
be his duty to require of such officer a new bond
and surety. Act 1845, Cobb, 1036.
See note to § 278.
§ 302. (§ 267.) Officer failing to give new
bond when required. — If any officer shall fail to
comply with such requisition within ten days from
the date he is served personally with a copy of
the executive order containing such requisition,
he is, by such failure, removed from office and a
vacancy declared.
See §§ 264, par. 6, 278, 287, and notes thereto.
CHAPTER 4.
Powers of Public Officers Limited.
§ 303. (§ 268.) Powers of public officers. —
Powers of all public officers are defined by law,
and all persons must take notice thereof. The
public can not be estopped by the acts of any offi-
cer done in the exercise of a power not conferred.
See §§ 258, 3612 arid notes thereto. See also 5 Cum. Dig.
448; 9 Cum. Dig. 685; 5 Enc. Dig. 209.
Editor's Note. — This section, first appearing in the Code
of 1895, was taken from Penitentiary Co. v. Gordon, 85
Ga. 159, 171, 11 S. E. 584, where it was held that all per-
sons deal with public officers at their peril and are charged
with knowledge of the scope of their authority; and the
State can not be estopped by acts done without authority.
Therefore the Governor's act in compromising a claim of
the state against the keeper for escaped convicts could
not be plead as payment, because the compromise was
without his authority. The court cited Mechem's Public
Offices and Officers, §§ 923, 924; State v. Southwestern
Railroad, 70 Ga. 11; Day, Land, etc., Co. v. State, 68 Tex.
526, 4 S. W. 865, to sustain' this proposition.
The same principals have been applied in prior cases and
they are herein included.
Power of Officer Coextensive with Grant. — A county's
affairs are administered by public officers, and they have
no powers except such as are conferred by statute. De-
catur v. DeKalb County, 130 Ga. 483, 61 S. E. 23.
Persons Deal with Officers at Own Peril. — Persons deal-
ing with a public officer must take notice of the extent of
his powers at their perils. Eaing v. Mayor, 86 Ga. 756,
13 S. E. 107.
When Public Is Estopped — Acts within Authority. — But
the public will be estopped by the acts of any public offi-
cer done in the exercise of a power which is expressly con-
ferred by law. Citizens Bank v. Rockdale County, 152 Ga.
711, 111 S. E. 434.
Same — Acts without Authority. — The State can not be
estopped from asserting its right, on account of negligence
or illegal conduct of its officers, and can only be estopped
by legislative act or resolution. Booth v. State, 131 Ga.
750, 759, 63 S. E. 502; Brown v. Roach, 31 Ga. App. 476,
478, 120 S. E. 813.
Attorney general has no power to settle law executions
at less than full amount, such authority must come from
state in order to bind it. State v. Southwestern Railroad,
66 Ga. 403.
Where the State reserved the title to certain lots, but
the land was sold by authority of general law for its taxes,
the sale was void, the officers acted without authority, and
the state is not estopped by such sale and does not have
to refund the money. State v. Paxson, 119 Ga. 730, 732,
46 S. E. 872.
Same — Same — Non-Action. — The public can not be es-
topped by illegal action or non-action of officers. Smith
v. Dees, 92 Ga. 549, 17 S. E. 925.
Same — Same — Not Applicable to Railroads. — No estoppel
on the public arises in this State as to unauthorized acts
of public officers; but such a point is not involved where
a railroad company illegally issued bonds and they fell into
the hands of a bona fide holder without notice. Georgia
Granite R. Co. v. Miller, 144 Ga. 665, 87 S. E- 897.
What Officers Can Not Authorize They Can Not Ratify.
Dor sett v. Garrard, 85. Ga. 734, 11 S. E- 768.
Estoppel of Municipality — Where It Had No Power.— A
municipality is not estopped from pleading the unconstitu-
tionality of a contract in that the acts of the officers in
keeping the property purchased amount to a ratification,
for the public can not be estopped by acts done by its of-
ficers without power. What a municipality was without
power to do, its officers could not ratify. Wadley v. Lan-
caster, 124 Ga. 354, 52 S. E. 335.
Same — Same — Effect of Recital of Authority in Note. —
Where the city executed a promissory note in violation of
the state constitution, it is not estopped from setting up
such fact in defense when sued upon it, although the note
recites that it was executed by the mayor and council as
provided by law but fails to state that it was by assent
of 2/3 of the qualified voters under the constitution (which
it was not), stating that it was lawfully executed. Nat.
Park Bank v. Marietta, 29 Ga. App. 29, 113 S. E- 96.
Same — Where It Had Power. — But where a municipality
has authority to incur a debt, and the debt is incurred in
an irregular way, the city can not plead, as against a bona
fide holder without notice, the irregularities as the acts of
its officers without power, and so bar recovery. This sec-
tion has no application and the town is estopped. Climax
v. Burnside, 150 Ga. 556, 560, 104 S. E. 435.
Where a power to consent actually exists, the city may
be estopped to revoke a previously granted permission.
Eaing v. Mayor, 86 Ga. 756, 758, 13 S. E. 107; Augusta v.
Burum & Co., 93 Ga. 68, 19 S. E. 820.
City Not Liable for Illegal Arrest by Officer. Harris v.
Atlanta, 62 Ga. 290.
CHAPTER' 4A.
Contracts with State Institutions.
§ 303(1). Trustee, officer, or partner not to be
interested in contract. — No trustee or other offi-
cer of any State institution which is wholly or in
part supported by the funds of the State, nor any
partnership of which he is a member, or any offi-
cer of such institution, for the sale and purchase
of merchandise or supplies for such institution
whereby profit accrues to such trustee or such
partnership of which he is a member, or of which
he is a stockholder, nor shall such trustee or offi-
cer of such institution, supported wholly or in
part by funds of the State make any profit or
receive any money for the sale, handling or dis-
posal of any crop or crops or property of such
institution, nor shall such trustee or other officer
of such institution supported wholly or in part
by the State make or be interested in any con-
tract for supplies or merchandise for such in-
stitution, when such contract or the making of
the same, is wholly or in part made or influenced
by the action of the trustees of such institution
or is controlled by any officer of such institution,
and any and all such contracts as hereinbefore set
out are hereby declared to be illegal and void.
Provided further, that any such contracts as are
[72]
§ 304
INVENTORY ANNUALLY TO BE MADE
§ 312
herein described may be made with a corpora-
tion of which any such trustee shall not vote on,
nor participate in, the making of such contract,
and provided further, that any trustee of such
State institution shall not be prohibited from mak-
ing contracts for furnishing supplies to students
or faculty of such institution for their individual
use. Acts 1918, p. 265.
CHAPTER 5.
Of Delivery of Books and Property to Successors.
§ 304. (§ 269.) Officer must deliver books,
etc., to successor. — When any office is vacated, it
is- the duty of the incumbent, on demand made,
to deliver all books, papers, and other property
appertaining to the office, to his qualified suc-
cessor.
See 7 Cum. Dig. 240; 10 E)nc. Dig. 686.
The word "qualified," clearly can only mean "sworn in,"
and this is the sense in which it is commonly used in the
constitution and laws * * * indeed, this is the universal
use of it as applied by law to public officers. Ross v.
Williamson, 44 Ga. 501.
Can Not Try Right to Office. — In proceeding under this
and the following sections, the Courts will not go behind
the commission to inquire into the legality of the election,
or the eligibility of the new officer. Ross v. Williamson, 44
Ga. 501.
Same — Showing of Election and Commission Insufficient. —
The petition shows that the petitioner has been elected and
commissioned. That is all that is required by the statute.
Ross v. Williamson, 44 Ga. 501.
Remedy Inadequate Relief to County. — Where the clerk
of the county board refuses to turn over the books to the
board upon his discharge, having them locked in an office,
the remedy provided by this and the following sections is
not an adequate remedy for the county, if any at all.
Clarke County v. Gamble, 136 Ga. 382, 71 S. E\ 797.
§ 305. (§ 270.) Other persons having office
property. — If a vacancy occurs by death, or the
incumbent is not to be found at the time of de-
mand made, it is the duty of any person having
possession or control of such office property, or
any part thereof, to deliver it up, and the rights
and remedies are the same against such person as
against the deceased officer, if living , or to be
found.
§ 306. (§ 271.) Proceedings against person in
possession of, and refusing to deliver, office and
contents. — If any person neglects or refuses so to
do, after demand made, the successor shall make
complaint to the ordinary of the county, or to the
judge of the superior court of the circuit in which
the person refusing resides, or, if neither can be
had, the judge of the superior court of an adjoin-
ing circuit, and if such officer is satisfied, from
the oath of complainant or otherwise, that such
are withheld, he must grant an order requiring
the person so refusing to show cause before him,
on a day and at a place named in such order, why
he should not be compelled to deliver over the
same. Acts 1853-4, p. 27.
§ 307. (§ 272.) Persons failing to comply
with the order, how punished. — At the time so
appointed, or at any other time to which the mat-
ter may be adjourned, a copy of such order hav-
ing been personally served on the person so re-
fusing, such officer must proceed to inquire into
the circumstances, and if it appears that such
books and papers are withheld, he must order the
same delivered up instanter to said successor, and
on failing to comply with such order, he shall is-
[
sue a warrant, directed to any officer of said
county, or of the adjoining county, authorized to
make the arrest, to arrest said officer and com-
mit him to jail, there to remain until he complies
with said order, or is otherwise discharged by
course of law. At the same time, in the same
way, he shall command said officer to search such
places for them as may be designated in such war-
rant, and to seize and bring them before him or
some other officer authorized to preside, and be-
ing so brought and appearing to belong to said
office, he shall cause them to be delivered to the
successor. The payment of costs are in the dis-
cretion of the court. Said proceedings do not
interfere with the provisions of the Penal Code on
this subject.
See 7 Cum. Dig. 240; 10 Fvnc. Dig. 686.
Jurisdiction of Superior Court. — It is quite evident that
there is nothing in this or the preceding section which con-
fers jurisdiction upon any superior court to grant either of
the orders or to issue the warrant for which provision is
herein made. Albea v. Watts, 114 Ga. 149, 151, 39 S. E.
940.
Review of Orders. — The proceeding is not, when insti-
tuted before a judge of the superior court, a proceeding in
any superior court; and, consequently, no order passed by
such officer upon such a proceeding is reviewable by a writ
of error to the Supreme Court. Albea v. Watts, 114 Ga.
149, 39 S. E. 940.
§ 308. (§ 273.) Officers retiring must deliver
books to successors. — All judicial or ministerial
officers or State's attorneys, who by law are en-
titled to receive from the State any books, pamph-
lets or other documents, upon retiring from office
must deliver them over to their successors, and
from one successor to another.
§ 309. (§ 274.) Penalty for failure to deliver
books to successor. — On failure to deliver such
books, after demand made by incoming officer,
he is liable for three times the first cost thereof,
to be retained out of his salary, if a salaried offi-
cer, and if not a salaried officer, or, being one, it
is omitted to be retained, the officer so detaining
is subject to suit and recovery (in a court having
jurisdiction) by the successor in the name of the
State for his use.
CHAPTER 6.
Inventory Annually to be Made.
§ 310. (§ 275.) Annual inventory of public
property. — All State and county officers, on or be-
fore the fifteenth day of January of each year,
shall make a complete inventory on oath of all
the public property in their charge, and shall en-
ter the same in a book kept for that purpose. Act
1882-3, p. 126.
§ 311. (§ 276.) Successor's receipt and record
of same. — When any officer shall vacate his office,
he shall take a receipt from his successor for all
property turned over to said successor, which
receipt shall be entered in said book, and he shall
satisfactorily account to the proper authority for
any not turned over. Acts 1882-3, p. 126.
§ 312. (§ 277.) Successor's duty. — Every offi-
cer, within three months after taking charge of his
office, shall examine the inventories of his prede-
cessor, and make a report upon the same to the
proper authority, especially reporting each article
and its value not turned over or satisfactorily ac-
counted for.
73
§ 313
SALARIES AND FEES OF OFFICERS
§ 317
§ 313. (§ 278.) Unserviceable property sold.
— When any public property shall become unserv-
iceable, it may be sold or otherwise disposed of,
by order of the proper authority, and an entry of
the same shall be made in said book, and the
money received therefrom shall be paid into the
treasury.
See the note to § 314.
Sole Authority for Disposition — Unserviceable Property
Only. — This is the only section which authorizes the Ordi-
nary to sell county property. The only property he can sell
is that which has become unserviceable. Decatur v. De-
Kalb County, 130 Ga. 483, 488, 61 S. E. 23.
Same — Applicable to County Commissioners. — The act cre-
ating the board of commissioners of DeKalb Co. must be
construed in connection with this and § 396. It follows
that the commissioners have no greater powers of dispo-
sition than the ordinary. Decatur v. DeKalb County, 130
Ga. 483, 488, 61 S. E. 23.
Public property becomes unserviceable in the purview
of this law, so as to empower the proper authority to sell
the same, where such property can not be beneficially or
advantageously used under all the circumstances. Trap-
nell v. Candler County, 146 Ga. 617, 91 S. E. 771; Dyer v.
Martin, 132 Ga. 445, 64 S. E. 475.
Where county commissioners acquire property upon
which to build a court house and later another lot is
given by a citizen, the commissioners may build upon the
latter and dispose of the former under this section. Trap-
nell v. Candler County, 146 Ga. 617, 91 S. E. 771.
Can Not Be Sold in Piecemeal. — If, when a courthouse
becomes inadequate to the county's needs, it may be dis-
posed of in accordance with this section and § 396, the
property must be sold as a whole and not by piecemeal.
Hunnicutt v. Atlanta, 104 Ga. 1, 9, 30 S. E. 500.
§ 314. (§ 279.) "Proper authority." — The
"proper authority" referred to in this Chapter is
the Governor of the State, for all officers of the
State; and the county commissioners, or other of-
ficers having charge of county matters, for all
officers of the county.
See §§ 4796, 6548, 6600. See also, note to § 313.
When any public property has become unserviceable
the Governor may order same sold. But no power con-
ferred upon the Governor by the code authorizes his con-
sent to the sale of any property of the State, or any ease-
ment or interest in the State's property. The power to
dispose of property belonging to the State is vested in the
legislature. Western Union Tel. Co. v. Western & A. R.
R. Co., 142 Ga. 532, 534, 83 S. E- 135.
The act creating the commissioners of Hall county (Acts
1886, p. 265) confers upon them power to sell any public
property of that county which has become unserviceable,
according to the provisions of §§ 313, 396. Dyer v. Mar-
tin, 132 Ga. 445, 64 S. E- 475.
§ 315. (§ 280.) Public officer liable to rule.—
Any public officer who shall violate any one or
more of the provisions of this Chapter shall be
liable to be ruled by the proper authority, as
aforesaid, in the superior courts, in the same man-
ner as the sheriffs of the State, and be subject to
an action on his bond for the value of all public
property not turned over or satisfactorily ac-
counted for: Provided, this and the preceding
sections of this Chapter shall not be construed to
repeal any existing laws for the recovery of pub-
lic property, or the value thereof, or for the punish-
ment of any public officer who shall refuse, fail,
or neglect to turn over or satisfactorily account
for the same as aforesaid. Acts 1882-3, p. 126.
See § 5346.
CHAPTER 7.
Salaries and Fees of Officers.
§ 316.
ARTICLE l.
Executive Officers.
(§ 281.) Annual salaries appropriated
— The various sums of the annual salaries of all
the officers of this State, whose salaries are fixed
by law, are hereby appropriated annually to pay
said officers, until they are altered by law. Acts
1865-6, pp. 11, 12.
See § 345.
§ 317. (§ 282.) Salaries of executive officers.
— The salaries per annum, of such officers,
respectively, are as follows:
The Governor 7,500.00
Acts 1873, p. 8; 1904, p. 71; 1918, p. 109.
The attorney-general 5,000.00
Acts 1905, p. 94; 1919, p. 133; 1909, p. 144; 1919,
p. 133.
The assistant to the attorney-general.... 2,500.00
Acts, 1919, p. 133.
The stenographer of the attorney-general 1,500.00
The Governor's secretaries, each 1,800.00
The Governor's messenger 950.00
The comptroller-general 2,000.00
The clerk of the comptroller-general .... 1,800.00
Acts 1907, p. 97.
Insurance clerk in office of comptroller-
general 2,400.00
Acts 1919, p. 282.
The corporation clerk 2,500.00
Acts 1919, p. 74.
Public service corporation tax clerk .... 2,600.00
Acts 1918, p. 209; 1920, p. 236; 1924, pp. 27, 30.
The commissioner of agriculture ...... 5;000.00
Acts 1906, p. 110; 1919, p. 75.
The clerk of the commissioners 2,500.00
Acts 1905, p. 73; 1919, p. 92.
The State treasurer 4,800.00
Acts 1919, p. 73.
The assistant State treasurer 3,600.00
Acts 1919, p. 383.
The clerk of the State treasurer 1,600.00
The secretary of State 2,000.00
The clerk of the secretary of State 1,000.00
The State librarian 1,800.00
Acts 1873, p. 8.
The assistant librarian 1,500.00
Acts 1904, p. 50; 1918, p. 108.
The second assistant librarian 1,000.00
Acts 1909, p. 143; 1912, p. 46.
The commissioner of revenue 4,000.00
Acts 1923. Ex. Sess., pp. 13, 15.
The keeper of public buildings and
grounds 2,500.00
Acts 1919, p. 284.
The State historian 3,000.00
Acts 1918, pp. 137, 140.
The State auditor 6,000.00
Acts 1925, p. 256.
The assistant State auditor 4,000.00
Acts 1925, p. 256.
The commissioner of commerce and labor 3,600.00
Acts 1919, p. 278; 1925, p. 141.
The assistant commissioner of commerce
and labor 2,400.00
Acts 1925, p. 141.
The State commissioner of game and
fish 3,600.00
Acts 1924, pp. 191, 104.
The tidewater commissioner of game and
fish 3,000.00
The public service commissioners 3,600.00
Acts 1919, p. 92.
[74]
§ 318
OFFICERS OF JUDICIAL DEPARTMENT
§ 327
The chairman of the public service com-
mission 5,000.00
The secretary of the public service com-
mission 3,000.00
The special attorney of the public service
commission 4,000.00
Acts 1922 pp. 144, 146.
§ 318. (§283.) Pay of the officers whose
salaries are not fixed. — All persons employed by
the Governor, for whom no compensation is pre-
scribed, are paid, according to his discretion, out
of the money appropriated therefor. If no money
is thus appropriated, and the employment is in-
dispensable, he has the privilege to pay them out
of the contingent funds.
See §§ 6001, 6574.
ARTICLE 2.
Officers Appointed by Governor.
§ 319. (§ 284.) Salaries. — The salary per an-
num of such officers is as follows:
The trustee of the Georgia State Sanitarium,
each $ 150.00
Acts 1873, p. 60.
ARTICLE 3.
Officers of the Georgia State Sanitarium.
§ 320. (§ 285.) Salaries.— Repealed by Acts
1919. p. 76.
ARTICLE 4.
Legislative Officers.
§ 321. (§ 286.) Salaries and fees.
The Secretar}' of the Senate, per day for
each session $ 60.00
The clerk of the House of Repesenta-
tives, per day for each session 70.00
The fees of said officers are —
For every extract of a private nature, per
copy sheet .15
For certifying an extract of a private na-
ture .50
For certifying an act for the benefit of an
individual, or corporation, or society 3.00
Acts 1878-9, p. 185.
See § 366.
ARTICLE 5.
Officers Connected with the Judicial Department.
§ 362. (§ 287.) Salaries of Supreme Court
judges. — The salary of the judges of the Supreme
Court who received their commission after Aug-
ust 15th, 1904 shall be four thousand dollars per
annum. Judge in commission at that date shall
receive the salaries fixed by law until the expira-
tion of their commissions. Acts 1904, p. 72.
§ 323. Superior Court judges. — The salary of
the judges of the superior court who received
their commission after August 15th, 1904, shall be
three thousand dollars per annum. Acts 1904,
p. 72.
See note to § 325.
§ 324. Ground of impeachment. — It shall be un-
lawful for any judge of the Supreme or superior
[
courts of this State to receive for himself or any
member of his family, either directly or indirectly,
any favor from any railroad company or any rail-
road free pass, or any like favor from any tele-
phone, telegraph, or express company or like
quasi corporation, not enjoyed by the general
public, and any violation of the provision of this
section shall be a ground of impeachment. Acts
1904, p. 72.
See §S -'605, 2735, 4847, 4865, 6424, 6429.
§ 325. Salaries of judges increased in certain
circuits. — The judges of the superior courts of all
the judicial circuits having therein a city with a
population of not less than 34,000 according to
the United States census of 1900 shall receive a
salary of five thousand dollars per annum, the
difference in amount between the sum paid said
judges out of the treasury of the State and said
five thousand dollars to be paid out of the treasury
of the counties in which said cities are located,
as other court expenses of said counties are paid:
Provided, that the provisions of this section shall
not affect the salaries of such judges as were in
commission on August 15th, 1904. Acts 1904, p.
73; 1905, p. 90; 1906, p. 56.
Constitutionality. — This section became valid with the
amendment of 1910, ratifying it. Hammond v. Clark, 130
Ga. 313, 315, 71 S. E. 479.
Under a proper construction of the constitution of 1877,
§ 6533, salaries of the judges of the superior courts are
payable exclusively from the State treasury. In so far
as the Act of 1904 (p. 73), as amended by the Act of 1905
(p. 100) and the Act of 1906 (p. 56), purports to supplement
salaries of the judges of the superior courts from county
treasuries it is void. Clark v. Hammond, 134 Ga. 792, 68
S. E. 600.
This provision for payment by county was an essential
part of the legislative scheme expressed in the acts under
consideration. It could not be stricken from them, and
leave the acts as fixing an increased salary for the judges
described, payable from the State treasury; and no such
construction was given to those acts by this court. Ham-
mond v. Clark, 136 Ga. 313, 71 S. E. 479.
§ 326. Compensation for services outside their
circuits. — In all judicial circuits of this State hav-
ing therein a city with a population of not less
than 75,000 inhabitants, according to the census
of 1900, wherein judges of superior courts of
judicial circuits other than the ones containing
such a city are now or hereafter may be author-
ized by law to sit as judges of the superior court
in such circuits, having a city of the class afore-
said, such judges so sitting out of their regular
circuits shall, for their services while so engaged
in holding such courts, or in the discharge of the
business thereof in such circuit, containing a city
of the class above described, receive as compensa-
tion for their services, in addition to their regu-
lar salary as judges of the superior court, a sum
of not more than $2,000 per annum, in the discre-
tion of the commissioners of roads and revenues
or such authority as has control of the financial
affairs of the county in which such city of
the class described is located; provided, that the
$2,000 or such part thereto as may be fixed by said
commissioners or such other county authority
shall be paid out of the treasury of the county in
which said city of the class above described is
located, as other court expenses of such county
are paid.
See § 4844.
§ 327. Reporter of the Supreme Court. — The
75]
§ 328
LEGISLATIVE DEPARTMENT
§ 334
salary of the reporter of the Supreme Court shall
be two thousand dollars per annum.
§ 328, (§ 287.) Fees of soUcitor-generaV—
The solicitor-general of the several circuits shall
have a salary, of two hundred and fifty dollars
per annum.
The fees of such officers for civil matters are as
follows:
1. Solicitor-general —
For each proceeding to enforce a recogniz-
ance . 5.00
For every amount collected on such pro-
ceedings 5 per cent.
For every proceeding instituted to forfeit
a charter 100.00
For plain collections for the State .... 5 per cent.
For litigated collections for the State 10. per cent.
For services in cases not mentioned, where
the State is an interested party, at the
discretion of the Governor, not ex-
ceeding 50.00
See §§ 451, 460, 461.
In Divorce Cases. — Where the Solicitor General is ap-
pointed to see that the grounds of a divorce are legal, and
sustained by proof, the Court has no authority to order
the husband to pay the Solicitor General for this service.
Counsel fees are allowed as "expenses of litigation," and
can be granted only on the application of the wife.
Creamer v. Creamer, 36 Ga. 619.
§ 329. (§(288.) Certificate of services and
cases where no fee allowed. — Solicitors shall not
be paid fees for litigation without the certificate
of the presiding judge that they are properly and
faithfully claimed as such, nor on any bill for any
species of gaming, where the same is entered no).
pros.
§ 330. The Court of Appeals. — The laws re-
lating to the Supreme Court as to salaries of the
judges, and salaries and fees of officers, shall ap-
ply to the Court of Appeals. Acts 1906, p. 24.
FIFTH TITLE
Legislative Department.
CHAPTER 1.
Of the General Assembly.
ARTICLE l.
Annual Session and Organization.
§ 331. (§ 289.) Legislature meets, when and
where. — The General Assembly shall meet on the
fourth Wednesday in June, 1903, and annually
thereafter on the same day, until the day shall be
changed by law. The hour of meeting shall be
ten o'clock in the forenoon, and the place at the
capitol. Acts 1890-1, p. 55; § 6416; Act 1902, p. 66.
As to election of members to the General Assembly, see
§ 6416.
§ 332. (§ 290.) Length of session. — Each ses-
sion shall not continue longer than fifty days,
except when an impeachment trial is pending at
the end of fifty days the session may be prolonged
until the completion of said trial. Acts 1890-1, p.
55.
See § 6417.
§ 333. (§ 291.) Apportionment. — The member-
ship of the House of Representatives shall be as
[
follows: Three members each from the Counties
of Fulton, Chatham, Bibb, Richmond, Muscogee,
DeKalb, Floyd and Laurens; two members of
each from the Counties of Troup, Carroll,
Thomas, Decatur, Burke, Cobb, Gwinnett, Sum-
ter Colquitt, Coweta, Ware, Washington, Hall,
Lowndes, Meriweather, Bulloch, Clarke;, Ema-
nuel, Mitchell, Jackson, Brooks, Bartow, Wal-
ton, Wilkes, Elbert, Worth, Screven, Walker, Jef-
ferson, and Dodge; and one member each from
each of the other counties of said State. Acts 1901
p. 51; 1911 p. 148; 1920 p. 55. 1921 p. 229.
See § 6413.
Editor's Note. — This section was taken from the Acts of
1901, p. 148. By the Acts of 1911, p. 148, the county of
Muscogee was stibstituted in the first division for Thomas
County, and the counties of Clarke, Ware and Brooks
were substituted in the second division for Dooley, Tatt-
nall and Monroe Counties.
§ 334. Senatorial districts. — The fifty-one
senatorial districts of this State shall be distri-
buted and be composed of the various counties as
follows, to wit: 1st. The first senatorial district
shall be composed of the counties of Chatham,
Bryan and Effingham. 2d. The second senatorial
districts shall be composed of the counties of
Liberty, Tattnall, Mcintosh and Long. 3d. The
third senatorial district shall be composed of 'the
counties of Wayne, Appling, Jeff Davis and Bran-
'tly. 4th. The fourth senatorial district shall be com-
posed of the counties of Glynn, Camden and
Charlton. 5th. The fifth senatorial district shall be
composed of the counties of Ware, Clinch and
Atkinson. 6th. The sixth senatorial district
shall be composed of the counties of Echols,
Lowndes, Berrien, Cook and Lanier. . 7th. The
seventh senatorial district shall be composed of
the counties of Brooks, Thomas and Grady. 8th.
The eighth senatorial district shall be composed
of the counties of Decatur, Mitchell, Miller and
Seminole. 9th. The ninth senatorial district shall
be composed of the counties of Early, Calhoun
and Baker. 10th. The tenth senatorial district
shall be composed of the counties of Dougherty,
Lee and Worth. 11th. The eleventh senatorial
district shall be composed of the counties of Clay,
Randolph and Terrell. 12th. The twelfth sena-
torial district shall be composed of the counties
of Stewart, Webster and Quitman. 13th. The
thirteenth senatorial district shall be composed of
the counties of Sumter, Schley and Macon. 14.
The fourteenth senatorial district shall be com-
posed of the counties of Dooly, Pulaski and
Blecklej^. 15th. The fifteenth senatorial district
shall be composed of the counties of Wheeler,
Montgomery and Tombs. 16th. The sixteenth
senatorial district shall be composed of the coun-
ties of Laurens, Emanuel, Johnson and Trentlen.
17th. The seventeenth senatorial district shall be
composed of the counties of Screven, Jenkins and
Burke. 18th. The eighteenth senatorial district
shall be composed of the counties of Richmond,
Glascock and Jefferson. 19th. The nineteenth
senatorial district shall be composed of the coun-
ties of Taliaferro, Greene and Warren. 20th. The
twentieth senatorial district shall be composed of
the counties of Baldwin, Hancock and Washing-
ton. 21st. The twenty-first senatorial district shall
be composed of the counties of Twiggs, Wilkin-
son and Jones. 22nd. The twenty-second sena-
torial district shall be composed of the counties
61
§ 334
SUBLETTING OFFICES FORBIDDEN; OTHER OFFICERS
§ 341
of Bibb, Monroe Pike and Larmar. 23d. The
twenty-third senatorial district shall be composed
of the counties of Houston, Crawford and Taylor.
24th. The twenty-fourth senatorial district shall be
composed of the counties of Muscogee, Marion and
Chattahoochee. 25th. The twenty-fifth senatorial
district shall be composed of the counties of
Harris, Upson and Talbot. 26th. The twenty-
sixth senatorial district shall be composed of the
counties of Spalding, Butts and Fayette. 27th.
The twenty-seventh senatorial district shall be
composed of the counties of Walton, Oconee and
Barrow. 28th. The twenty-eighth senatorial dis-
trict shall be composed of the counties of Jasper,
Putnam and Morgan. 29th. The twenty-ninth
senatorial district shall be composed of the coun-
ties of Columbia, Lincoln and McDuffie. 30th.
The thirtieth senatorial district shall be composed
of the counties of Madison, Elbert and Hart.
31st. The thirty-first senatorial district shall be
composed of the counties of Habersham, Franklin
and Stephens. 32d. The thirty-second senatorial
district shall be composed of the counties of
White, Dawson and Lumpkin. 33d. The thirty-
third senatorial district shall be composed of the
counties of Hall, Banks and Jackson. 34th. The
thirty-fourth senatorial district shall be composed
of the counties of DeKalb, Rockdale and New-
ton. 35th. The thirty-fifth senatorial district shall
be composed of the counties of Clayton, Fulton
and Henry. 36th. The thirty-sixth senatorial dis-
trict shall be composed of the counties of Camp-
bell, Coweta and Meriwether. 37th. The thirty-
seventh senatorial district shall be composed of
the counties of Carroll, Heard and Troup. 38th.
The thirty-eighth senatorial district shall be com-
posed of the counties of Haralson, Polk and Pauld-
ing. 39th. The thirty-ninth senatorial district
shall be composed of the counties of Cherokee,
Cobb and Douglas. 40th. The fortieth senatorial
district shall be composed of the counties of
Union', Towns and Rabun. 41st. The forty-first
senatorial district shall be composed of the
counties of Pickens, Fannin and Gilmer. 42d.
The forty-second senatorial district shall be com-
posed of the counties of Bartow, Floyd and Chat-
tooga. 43d The forty-third senatorial district
shall be composed of the counties of Murray,
Gordon and Whitfield. 44th. The forty-fourth
senatorial district shall be composed of the coun-
ties of Walker, Dade and Catoosa. 45. The Forty-
fifth senatorial district shall be composed of the
Counties of Irwin, Ben Hill and Telfair. 46. The
Forty-sixth senatorial district shall be composed
of the Counties of Bacon, Pierce and Coffee. 47.
The Forty-seventh senatorial district shall be com-
posed of the counties of Colquitt, Taft and Tur-
ner. 48. The Forty-eighth senatorial district shall
be composed of the counties of Crisp, Wilcox
and Dodge. 49. The Forty-ninth senatorial dis-
trict shall be composed of the counties of Bulloch,
Candler and Evans. 50. The Fiftieth senatorial
district shall be composed of the counties of
Clarke, Oglethorpe and Wilkes. 51. The Fifty-
first senatorial district shall be composed of the
counties of Gwinnett, Milton and Forsyth. Acts
1906, p. 80; 1912, p. 38; 1917, pp. 41, 44; 1918, pp.
85, 102, 106; 1919, p. 68; 1920, pp. 34, 38, 48, 52.
See § 6411. As to authority of the legislature to change
senatorial districts, see § 6412.
§ 335. (§ 292.) General Assembly, how or-
ganized.— Each branch shall be organized by the
clerk and secretary thereof respectively who are
ex officio presiding officers until such are elected.
No questions shall be entertained by them but one
relating to the organization, and in deciding such
questions they are to be governed as far as prac-
ticable, by the standing rules of the house over
which they preside. In the absence of such offi-
cers, their assistants may officiate. In the ab-
sence of both, the body may appoint a chairman
whose powers and duties are the same.
See § 6410.
As to number necessary to constitute quorum, see §
6418.
§ 336. (§ 293.) Oath of members.— The oaths
of office may be administered to the members of
the General Assembly by any judge of the Su-
preme or superior courts, to be procured by the
person organizing each branch.
§ 337. (§ 294.) President of the Senate and
Speaker of the House, how elected. — The Presi-
dent of the Senate and Speaker of the House are
elected by their respective bodies viva voce, and
a majority of votes is necessary to a choice. In
like manner the Senate must elect a president pro
tern., and the House a speaker pro tern., whose
powers and duties, while presiding, or in the
absence of said officers, are the same.
See §§ 6423, 6428.
As to oath of each legislative member, see § 6419.
ARTICLE 2.
Doorkeeper and Messenger.
§ 338. (§ 296.) Doorkeeper and messenger. —
Each house is entitled to a doorkeeper and mes-
senger, to perform such duties as may be required
of them, who shall be elected as provided for the
election of clerk and secretary, and who shall
receive the same pay as the members of the
General Assembly. Acts 1862-3, p. 139.
See §§ 339 et seq.
ARTICLE 3.
Subletting Offices Forbidden; Other Officers.
§ 339. (§ 297.) Subletting offices prohibited.
— No doorkeeper, or other employee of the House
of Representatives or Senate, shall sublet his em-
ployment or contract in any way, nor shall the
person having the appointment of any of said em-
ployees consent to anjr substitution of any other
person for any of said employees. Act 1889, p.
173.
§ 340. (§ 298.) Office vacant when original
employee can not discharge duties. — Whenever
for any reason the person appointed to any of
said positions can not personally discharge the
duties of the same, said office shall become va-
cant, and it shall be the duty of the person in
whom is vested the appointing power to appoint
another person for such time as the original em-
ployee can not discharge his duties, and the com-
pensation shall, from the date of such new ap-
pointment, be paid to the new employee for the
time he shall serve.
§ 341. (§ 299.) Employing substitutes, pen-
alty.— Whenever the provisions of this Chapter
77 ]
§ 342
PAY OF MEMBERS
§351
are violated, and any person is substituted for
another in violation of the same, neither the per-
son so substituted, nor the person for whom he
is substituted, shall receive any compensation out
of the State treasury; and it shall be the duty of
the treasurer, whenever any change is made in
any of the persons filling any of said positions, to
ascertain that the change was made according to
the provisions of this Chapter, before paying any
money to the new officer or employee.
§ 342. (§ 300.) Officers, how paid.— All offi-
cers and employees provided for in this Chapter
shall be paid for their services by the treasurer
only, upon the approval of their accounts by the
auditing committee of the Senate and House of
Representatives.
§ 343. (§ 301.) Appointments for special
purposes. — When it shall be necessary to carry
into effect the seventh section of the Third Article
of the Constitution, or for any like purpose, either
of said officers may appoint any person to execute
the orders of each house and the warrant of the
presiding officer, who may receive for the serv-
ice such compensation as the General Assembly
may appropriate.
See §§ 6430, 6431.
ARTICLE 5.
Finance Committee's Report.
§ 346. (§ 304.) Joint finance committee. — It is
part of the duty of the joint standing committee
of finance to examine the accounts and vouchers
of the comptroller and treasurer as to all moneys
received into and paid out of the treasury during
the last fiscal year, to compare the warrants
drawn during that period with the several laws
by authority of which they purport to be drawn,
to examine into the other accounts and books of
such officers, to count the money on hand at the
time of the examination, and to examine the an-
nual reports made by said officers, to see if they
are sustained by the true condition of their offi-
ces, and report the result to each branch of the
General Assembly.
ARTICLE 4.
Appropriation Bills.
§ 344. (§ 302.) Book of appropriation bills to
be furnished annually. — The clerk of the House
of Representatives shall provide, out of the con-
tingent fund of the House, a well-bound book,
which he shall deliver to the chairman of the
House finance committee, as soon as such chair-
man shall be appointed, and said chairman shall
enter or cause to be entered in such book, in the
order of their introduction, all bills seeking, di-
rectly or indirectly, to obtain appropriations from
the State treasury, with a brief statement of the
contents of such bill, together with the number
thereof, the name of the introducer, and any other
facts developed before the committee that will
throw any light on the nature of the legislation
proposed by the bill. After the expiration of the
legislature, said chairman shall deposit said book
with the secretary of State, who shall deliver the
same to each successive chairman of said com-
mittee as soon as he shall have been appointed.
Acts 1880-1, p. 175.
See §§ 238, 316, 6438.
§ 345. (§ 303.) Permanent appropriations in-
cluded in general bill. — All general appropriation
bills shall, in addition to the customary itemized
statements of the amounts appropriated for the
usual expenses of the executive, legislative, and
judicial departments of the government, and for
the support of the public institutions and educa-
tional interests of the State, contain also a like
itemized statement of all amounts appropriated
by any previous law, to be paid annually out of
the treasury; and such amounts so appropriated
by previous laws shall not be paid from the
treasury, unless they are" embraced in the general
appropriation Act. Acts 1889, p. 15.
See §§ 238, 316, 6438.
ARTICLE 6.
Suspension of Comptroller or Treasurer.
§ 347. (§ 305.) Suspension of comptroller or
treasurer. — The General Assembly may suspend
from the functions and duties of office either the
treasurer or the comptroller-general (by joint
resolution duly adopted after being read one time
in each house on different days, and by a two-
thirds vote of members voting on the same;,
whenever the interests of the State, or the proper
administration of the law, demand such suspen-
sion. Acts 1878-9, p. 30.
See §§ 160, 222, 224, 6487.
ARTICLE 7.
Unfinished Business, Engrossed Bills, etc.
§ 348. (§ 306.) Duty of the secretary and clerk
at close of the session. — At the close of each ses-
sion, the secretary of the Senate, clerk of the
House of Representatives, and secretary of State
must select all the papers belonging to the General
Assembly, except such as relate to the unfinished
and rejected business, and deposit them in the
office of the secretary of State.
See §§ 365, 366.
§ 349. (§ 307.) Unfinished business of first
session goes over to next. — All bills, resolutions,
and other matters pending at the end of the first
session of each General Assembly shall go over
to the next session as unfinished business, and
occupy the same places on the calendar of the
second session as such matters occupied at the
first session. Acts 1892, p. 102.
§ 350. (§ 308.) Engrossed copies of laws, etc.
— The engrossed copies of all laws and joint reso-
lutions passed by the General Assembly must be
preserved by the chairman of the enrolling com-
mittee, and deposited in the office of the secretary
of State.
See §§ 210, 366.
ARTICLE 8.
Pay of Members.
§ 351. (§ 309.) Per diem— The per diem of
members of the General Assembly shall be seven
dollars, and the mileage shall not exceed ten cents
for each mile traveled, by nearest practical route, in
[78]
§ 352
SECRETARY OF SENATE AND CLERK OF HOUSE
§ 359
going to and returning from the Capitol; but the
President of the Senate and the Speaker of the
House of Representatives, shall each receive ten
dollars per day. Acts 1919 p. 76.
See § 6454.
Editor's Note. — This section was amended by the Acts
of 1919, p. 76, increasing the compensation of the mem-
bers of the General Assembly from four to seven dollars
per diem, and the compensation of the president of the
senate and Speaker of the House from seven to ten dol-
lars per diem.
§ 352. (§ 310.) Sick members. — If any member
is detained by sickness, after leaving home, in com-
ing to, or is unable to attend the house after he
arrives at the seat of government, he is entitled to
the same daily pay as an attending member; but no
member shall receive pay for absent time unless on
account of sickness of himself or family, or by ex-
press leave of the house of which he is a member.
§ 353. (§ 311.) If a member die during the
session. — If any member of the General Assembly
shall die during the session, or afterwards, without
having received the whole or any portion of his pay,
the amount due for the whole session shall be paid
to the widow of the deceased,, and if no widow, in
like manner to the children.
§ 354. (§ 312.) Accounts of members and
officers, how audited. — The compensation due to
the officers and members of the General Assembly
must be certified by the President and Speaker, re-
spectively, upon the ' report of the auditing com-
mittee, to the treasurer, who afterwards shall pay
each member who presents his accounts duly
audited.
§ 355. Visiting Committees of Legislature. — All
committees appointed by the President of the
Senate and Speaker of the House to visit the var-
ious institutions of the State shall consist of not
more than three from the Senate and nine from the
House. Said committees shall receive as compensa-
tion, in addition to their per diem, as is provided by
law for members of the General Assembly, the act-
ual and necessary money paid out by them as ex-
penses in visiting said institutions. Acts 1898 p. 109.
ARTICLE 9.
Resolutions Appropriating Money.
§ 356. (§ 313.) Appropriations of money by
resolution. — All resolutions which may grant money
out of any fund shall be treated in all respects, in
the introduction and form of proceeding on them, in
a similar manner with bills; they shall originate in
the House of Representatives, and shall receive
three readings previous to their being passed, but
the Senate may propose or concur in amendments,
as in case of bills. Act Feb. 24th, 1873, p. 14.
See §§ 6438, 6441.*
§
ARTICLE 10.
Local Bills and Notice Thereof.
357. (§ 314.) Notice of local bills.— Notice
of an intention to apply for the passage of a local or
special bill shall be given in the following manner:
The title of the bill shall be published once in the
newspaper in which the sheriff's sales are advertised,
or in a newspaper published in the town or city
whose charter is proposed to be amended or affected
by such local legislation, and shall be posted at the
door of the court-house in the county or counties of
the residence of the person or persons, natural or
artificial, to be affected there'by, or in which the
locality or municipality is situated, thirty days be-
fore the introduction of such bill: Provided, that
where there is no newspaper published in the county
where local legislation is asked, notice of said bill
shall be published in the paper where sheriff's sales
are published, and in all notices to be published un-
der this section, no newspaper shall charge more
than one dollar per square for said notice, and in
case of refusal to publish at said rates, then a pub-
lication in any other newspaper having a circulation
in the county where the local legislation is desired
shall be sufficient. And the production of the news-
paper dated thirty days prior to the introduction of
such bill into the General Assembly, containing the
notice required by this section, with the certificate
of the ordinary or the mayor of the town or city
that the notice has been posted, shall be sufficient
evidence that notice has been given in accordance
with the requirements of the Constitution. Acts
1878-9, p. 176; Acts 1915, p. 10.
See § 6444.
As to requirements of sheriff to give notice of change
in advertising medium, see § 6065.
Editor's Note. — This section was enacted by Acts of
1878-9, p. 176. By the Acts of 1915, p. 10, § 1, the fol-
lowing amendment was made. The insertion between the
words "advertise" and "and" in the first sentence of the
following words: "Or in a newspaper published in the
town or city whose charter is proposed to be amended or
affected by such local legislation." And further by in-
serting after the word "ordinary" in the fourth sentence
the following words: "or the mayor of the town or city."
The effect of this amendment was to provide that no-
tice of intention to apply for local legislation or change
the charter of any city or town may be published in any
newspaper published in said town or city.
Advertising Medium. — When the sheriff of a county se-
lects a newspaper in which to publish his legal adver-
tisements, that newspaper becomes, under the Code, the
official medium for all county advertisements. And un-
der this section it is required that notices shall be pub-
lished in the same medium. Coffee v. Ragsdale, 112 Ga.
705, 37 S. E. 968. But note effect of amendment of 1915
referred to above. — Ed. Note.
Presumption. — The court can not declare a local act un-
constitutional because there was no publication of notice
as required by this section. The court will presume that
the requisite publication was made, unless the contrary
appear from the journals of the legislature. Chamlee v.
Davis, 115 Ga. 266, 41 S. E. 691; Peed v. McCrary, 94 Ga.
487, 21 S. E. 232. For other cases, see 11 Enc. Dig. 824.
Evidence. — Whether proper notice has been given before
the introduction of a local or special bill, is for decision
by the legislature, and where an act is attacked as un-
constitutional for want of such notice, evidence in regard
thereto outside of the journals of that body, will not be
received by the courts. Speer v. Mayor, 85 Ga. 49, 11 S.
E. 802; Fullington v. Williams, 98 Ga. 807, 27 S. E- 183.
CHAPTER 2.
Secretary of Senate and Clerk of the House.
§ 358. (§ 315.) Secretary of the Senate and clerk
of the House. — There shall be a secretary of the
Senate and clerk of the House of Representatives,
elected by the members of each house respectively,
viva voce, and a majority of votes cast is necessary
to elect. Their terms of office shall be the time for
which the members of the General Assembly are
elected.
See § 6455.
§ 359. (§ 316.) Oath of secretary and clerk
[79]
§ 360
COUNTY ORGANIZATION— MILITIA DISTRICTS
§ 375
and their assistants. — Said officers, their assistants,
and engrossing and enrolling clerks, before enter-
ing on the discharge of their duties, shall take an
oath before their respective presiding officers to
discharge their duties faithfully and to the best
of their skill and knowledge, of which a minute
shall be made and entered on the journals.
§ 360. (§ 317.) President and speaker may
administer oaths. — -The President of the Senate and
Speaker of the House are to administer the oaths
required to the subordinate officers of their respec-
tive houses.
§ 361. (§ 318.) Pay of secretary and clerk and
their assistants. — The compensation of the secretary
of the Senate shall be sixty dollars per day for each
session, and the compensation of the clerk of the
House of Representatives shall be seventy dollars
per day for each session. Acts 1878-9, p. 185.
See §§ 321, 6453.
As to provision that secretary shall not be paid until
he shall have filed all papers, see § 366.
§ 362. (§ 319.) Assistant clerks. — Said secre-
tary and clerks shall each select and appoint such
assistants as may be necessary for the performance
of the clerical work of their respective houses, in-
cluding clerks for such standing or special com-
mittees as may be allowed a clerk by order of
their respective houses; the compensation of their
said assistants to be fixed by said secretary and
clerk respectively, and to be paid out of the
amounts allowed said secretary and clerk respec-
tively in the preceding section: Provided, how-
ever, that if either house shall for any purpose
employ a stenographic reporter, the cost of such
reporter shall not be considered a part of the
clerical expenses of such house, but shall be pro-
vided for by special appropriation. Acts 1878-9
p. 185.
§ 363. (§ 320.) Must give bond. — Immediately
after their election, said secretary and clerk shall
each give bond and security in the sum of five
thousand dollars, payable to the Governor and
his successors in office, and conditioned for the
faithful discharge of their respective duties, said
bonds to be approved by the President of the
Senate and Speaker of the House respectively.
Acts 1878-9, p. 185.
§ 364. (§ 321.) Qualification and removal of
certain clerks. — No journalizing, recording, en-
rolling, or engrossing clerk shall be appointed by
the secretary of the Senate or clerk of the House,
until such clerk has been examined by the enroll-
ing committee, and certified to their respective
houses to be competent and well qualified to the
discharge of the duties required of him; and such
clerk shall be removed at any time upon the
recommendation of the enrolling committee of
the House in which he is employed.
§ 365. (§ 322.) Secretary and clerk must file
papers and documents. — The secretary of the
Senate and the clerk of the House of Representa-
tives must, within ten days after the adjournment
of each session, file, in proper order, all the papers
and documents of their respective houses.
See § 348.
§ 366. (§ 323.) Secretary and clerk shall not
be paid until they have filed papers. — The records,
papers, and documents thus filed must be de-
livered to the secretary of State, who, upon receipt
of the same, must certify that such secretary and
clerk have respectively complied with said requi-
sitions, and the treasurer shall not pay their several
salaries until such certificate is produced.
As to salaries of the secretary, see §§ 321, 348.
§ 367. (§ 324.) Secretary must aid when both
houses meet. — When there is a meeting of both
branches of the General Assembly in one cham-
ber, said secretary and clerk shall be present and
join in the discharge of the duties required, and
shall enter on the journals of each the proceedings.
CHAPTER 3.
Elections by the General Assembly.
ARTICLE 1.
For United States Senators.
§§ 368 to 371, inclusive, were impliedly repealed
by the Seventeenth Amendment. See §§ 102(1) to
102(4) and § 6706(2).
ARTICLE 2.
For Other Officers.
§ 372. (§ 329.) Other officers, when elected.—
All officers created for the service of the 'State,
the election of which is not given to the people,
or some other tribunal, are elected by the General
Assembly, in the same manner and time as the
officers elected by them.
As to the mode of election by the General Assembly,
see § 6455. As to the election of particular officers such
as supreme court judges, Attorney General, etc., see the
particular title.
SIXTH TITLE.
County Organization.
CHAPTER l.
Militia Districts.
ARTICLE 1.
Defined.
§ 373. (§ 330.) Militia districts, how divided.
— Each county of this State is divided into militia
districts according to their respective territory
j and population.
Districts to remain the same, § 4704. As to new coun-
ties, see § 842.
§ 374./ (§ 331.) Districts to remain. — Such
districts as at present organized are to remain
the same until changed in the manner hereinafter
prescribed.
See § 4704.
§ 375. (§ 332.) Must contain how many male
residents. — Each district hereafter organized or
changed must contain within its limits at least
one hundred male persons over twenty-one years
of age, resident at the time of the organization,
liable to militia duty, and in its formation must
not leave any older district with a less number.
[80]
§ 376
COUNTIES ARE CORPORATE BODIES
§ 383
ARTICLE 2.
Militia Districts, How Laid Out, Consolidated,
or Abolished.
§ 376. (§ 333.) How laid out or changed. —
Whenever it may be necessary and expedient to
lay out a new militia district, or to change the
lines of old ones, or to consolidate or abolish old
districts, the ordinary may, at any time, appoint
three commissioners, citizens of the district or
districts from which it is proposed to make the
new district, or change the lines thereof, whose
duty it shall be to lay out and define such lines,
and report the same to the said ordinary. Act
1839, Cobb, 186; Act 1840, Cobb, 187; Acts 1899,
p. 23.
See 9 Enc. Dig. 343. As to jurisdiction of ordinary, see
§ 4796, par. 4. As to districts in new counties, see § 842.
General Law. — This section is a general law. Hackney
v. Leake, 91 Ga. 141, 16 S. E. 966; Drummond v. Lowry, 88
Ga. 716, 16 S. E. 28.
Form of Petition and Report. — A petition for a change of
boundary line should distinctly specify the location of the
new line, and the commissioners' report should lay out and
define it. Howell v. Kinney, 99 Ga. 544, 27 S. E. 204.
Power of Ordinary — Time of Action. — Ordinaries may ap-
point the commissioners, receive their reports and establish
new districts either in term or vacation. Poole v. Sims,
67 Ga. 36.
Same — Determines Expediency.— The commissioners are
mere agents to lay off the lines of a new district; the ordi-
nary determines the expediency of creating it. The crea-
tion of a new district is not, therefore, illegal because deemed
inexpedient by the commissioners. Conley v. Poole, 67 Ga.
254.
Same — Decision Final. — The judge of a superior court has
no jurisdiction to review by certiorari the action of an ordi-
nary, or board of commissioners under this section, for there
is no decision of a judicial question between parties litigant.
Hudson v. Sullivan, 93 Ga. 631, 20 S. E- 77. See also Hills-
man v. Harris, 84 Ga. 432, 11 S. E- 400.
Isolated Tracts. — This section does not authorize the in-
clusion in a district of isolated tracts not contiguous thereto.
Howell v. Kinney, 99 Ga. 544, 554, 27 S. E- 204.
Effect on Stock Law. — Where a district is enlarged the
stock law prevailing in that district extends over the new
territory. Hackney v. Leake, 91 Ga. 141, 16 S. E. 966; Dew
v. Smith, 130 Ga. 564, 61 S. E. 232.
Notice of Proceedings. — A justice whose fees will be di-
minished by a change in the militia district is not entitled
to notice of the proceedings. Poole v. Sims, 67 Ga. 36.
Effect of Motive of Applicant. — Where the proceedings con-
form to the statute, and the order of the commissioners re-
cite that the proposed change is necessary and expedient
the order making such changes in district lines is not void
because the applicants recited in their application that they
desired such change in order to secure the benefits of the
stock law in force in an adjoining district. Dew v. Smith,
130 Ga. 564, 61 S. E. 232.
§ 377. (§ 334.) Survey, etc. — Such commis-
sioners have authority to engage the services of
a competent surveyor to assist them in their duties,
who shall be paid for his services, out of the
county treasury, the same compensation county
surveyors have for similar services rendered a
citizen. Act 1839, Cobb, 187.
This section is not repealed by § 599 and the commissioners
are not limited to the employment of the county surveyor.
Graham v. Hall, 68 Ga. 354.
§ 378. (§ 335.) Proceedings recorded.— If the
ordinary approves their report, he shall have all
proceedings in the matter entered on his minutes,
after which the district laid out, or line changed
or defined, shall be known and regarded accord-
ingly. Act 1839, Cobb, 187.
Proof of District Lines and Residence. — The change of dis-
trict lines is a matter of record, but the location of a resi-
dence with reference thereto must be proved by parol. Gra-
ham v. Hall, 68 Ga. 354.
[
§ 379. (§ 336.) Proceedings transmitted to
Governor. — It is the duty of such ordinary, if a
new district is laid out, to transmit instanter to
the Governor such proceedings from his minutes,
duly certified, and to publish them for thirty days
at the door of the court-house and in the public
gazette where he does his official advertising. Act
1840, Cobb, 187.
The numbers and names of militia districts are not re-
quired to be kept in the executive department, by this sec-
tion. Aultman v. Hodge, 150 Ga. 370, 395, 104 S. E. 1.
§ 380. (§ 337.) Ordinary must order an elec-
tion, when. — As soon as such is done, such ordi-
nary must immediately order an election for a
justice of the peace and two constables for such
district, after advertising the same for thirty days
in three of the most public places of the new dis-
trict.
§ 381. (§ 338.) Making or changing districts,
consequences. — If, in laying out a new district or
in changing the lines of old districts, or in con-
solidating or abolishing old districts, the resi-
dences of justices of the peace or constables elected
or appointed are included in the new district, or
cut off from the district for which they were
elected or appointed, they have authority to dis-
charge their duties for the district for which they
were elected or appointed, until their terms of of-
fice expire and their successors in such district
are qualified, unless elected or appointed to the
same office in the new district to which they are
eligible. Acts 1899, p. 24.
As to new counties, see § 842.
This section includes notaries public, who are ex-officio
justices of the peace. Southern R. Co. v. Payne, 138 Ga.
18, 74 S. E. 697.
This section is not in conflict with Art. VI, § 8, par. 1,
of the constitution (§ 6526). Southern R. Co. v. Payne,
138 Ga. 18, 74 S. E- 697.
§ 382. (§ 339.) Suits pending. — Suits pending
in any justice's court must not be changed be-
cause the residence of a defendant is included in
the new district, or cut off into another district,
but they must proceed as though no such change
had been made.
CHAPTER 2.
Incorporation of Counties, County Contracts,
Property, and Claims.
ARTICLE. 1.
Counties are Corporate Bodies.
§ 383. (§ 340.) Each county a body corporate.
— Every county is a body corporate, with power
to sue or be sued in any court. And all inhabitants
of counties, who are competent jurors in other
cases, are declared and shall be holden to be com-
petent jurors in any case, in any court, where
such counties are parties to the suit or interested
therein in their capacity as corporations or quasi
corporations.
See § 903.
See 3 Enc. Dig. 738. As to restrictions on counties, see
§ 6561; for similar constitutional provision, see § 6594.
Extent of Power Conferred. — The county, it is true, is a
corporation. But this is only for certain specific pur-
poses. They are, in fact, but quasi corporations, and this
section of the Code is not to be understood as conferring
any powers, except the right to sue and be sued, since the
other powers are all conferred and regulated by other stat-
81]
§ 384
CONTRACTS, HOW MADE BY COUNTIES
§386
DeKalb
utes and provisions of the Code. Millwood
County, 106 Ga. 743, 748, 32 S. E- 577.
Judicial Notice. — The courts will take judicial cogni-
zance of the fact that each county is a body corporate.
Taylor v. State, 123 Ga. 133, 51 S. E- 326.
Who May Sue. — The right to sue a county is not de-
stricted to citizens of this State. Board of Commission-
ers v. Kurd, 49 Ga. 462, 463.
No Right Given to Sue for Any Breach of Duty.— This
section does not, ex vi termini give a citizen a right to
sue the county for the nonperformance of any duty. A
county rests upon a different footing from cities and towns.
Scales v. Ordinary, 41 Ga. 225.
Functions Are Governmental. — A county is a body cor-
porate and may sue and be sued, but its functions are
governmental, and it has no power except as conferred by
statute. Town of Decatur v. DeKalb County, 130 Ga. 483,'
487. 61 S. E- 23.
ARTICLE 2.
Suits Against Counties.
§ 384. (§ 341.) County, when liable to suit. —
A count}' is not liable to suit for any cause of ac-
tion unless made so by statute.
See 4 Cum. Dig. 292; 3 Enc. Dig. 748.
General Rule. — Neither the negligent performance of du-
ties which the county authorities are compelled to perform,
or the negligent discharge of duties voluntarily assumed,
except in cases provided by statute, gives a cause of ac-
tion against the county. Mitchell County v. Dixon, 20 Ga.
App. 21, 28, 92 S. E- 405; Millwood v. DeKalb County, 106
Ga. 743, 748, 32 S. E. 577.
Declaration Must Show Liability by Statute. Seymore
v. Elbert County, 116 Ga. 371, 42 S. E- 727.
Taking Private Property. — As a general rule, a county is
not liable to suit unless there is a law which so declares.
Yet the appropriate law can be found in the constitution.
When private property is taken by county authorities for
the benefit of the public, a right of action arises in favor
of the owner of the property. Elbert County v. Brown, 16
Ga. App. 834, 845, 86 S. E- 651; Bates v. Madison County,
32 Ga. App. 370, 123 S. E. 158.
But this provision does not give a cause of action where
a county by road work, pollutes a stream and thereby plain-
tiff's cows are poisoned. Howard v. County of Bibb, 127
Ga. 291, 56 S. E. 418.
Liability in Case of Bridges. — Where the statute provides
for the liability of counties, a recovery may be had against
them, as when no sufficient bond is taken to keep bridges
in repair. Hammond v. County of Richmond, 72 Ga. 188.
A right of action exists against a county for damaging
private property for public uses in constructing the ap-
proaches to a countv bridge. Smith v. Floyd County, 85
Ga. 420, 11 S. E. 850.
Garnishment. — Without express authority by statute, a
county is not subject to garnishment. Dotterer v. Bowe,
84 Ga. 769, 11 S. E. 896.
§ 385. (§ 342.) Suits against counties, how
brought and served. — Suits by or against a county
must be in the name of the county, and in all cases
in which a county may be a party defendant, serv-
ice perfected upon the ordinary and clerk of the
court of ordinary, if there 'be a clerk, and if no
clerk, then upon the ordinary alone, shall be
deemed sufficient; except that in those counties
where the fiscal affairs of the county are commit-
ted to a board of commissioners, service perfected
upon a majority of said commissioners shall be suf-
ficient. Acts 1872, p. 39.
See 4 Cum. Dig. 297; 3 Enc. Dig. 754.
For similar provision of constitution, see § 6594.
Suit can not be against the board of commissioners, and
a suit so brought can not be corrected by amendment. Ar-
nett v. Board of Commissioners, 75 Ga. 782. The rule was
otherwise under the Code of 1873. Collins v. Hudson, 54
Ga. 25, 27.
ARTICLE 3.
Contracts, How Made by Counties, Competition
in Bidding.
§ 386. (§ 343.) Contracts with ordinary. — All
contracts entered into by the ordinary with other
persons in behalf of the county must be in writ-
ing and entered on their minutes.
See 4 Cum. Dig. 274; 3 Enc. Dig. 739; 9 Cum. Dig. 134;
10 Enc. Dig. 46.
As to effect of Act of 1920 (Ga. Laws, 1920, p. 58), see
§§ 387, 389 and notes thereto.
Sufficiency of Entry. — All the material terms of a contract
entered into in behalf of a county by the county authorities
having jurisdiction over county matters must be in writ-
ing and entered on their minutes. Spalding County v. Cham-
berlin & Co., 130 Ga. 649, 61 S. E- 533.
A simple memorandum on the minutes of the county
commissioners, that a designated person was elected county
physician will not authorize suit against the county. Lau-
rens County v. Thomas, 6 Ga. App. 568.
Specific Contract Must Be Entered. — Although the super-
intendent of public works had general written authority,
duly entered upon the minutes, of the board of roads and
revenues, to employ men, if the specific contract with the
plaintiff was not in writing and had never been entered
upon the minutes of the board he can not recover. Gar-
ner v. Floyd County, 24 Ga. App. 693, 101 S. E- 918.
Signature of the chairman of the board of commissioners
is sufficient if authorized. Pilcher v. English, 133 Ga. 496,
66 S. E. 163.
Mandamus — In General. — If the proper county authorities
refuse to make the entry, mandamus will lie to compel
them to do so, upon the application of a person authorized
to institute the proceeding. Jones v. Bank of Cumming, 131
Ga. 614, 63 S. E. 36.
Same — Who May Apply. — Where a contractor in the
progress of work procured loans from a bank for the pur-
pose of completing it, and gave written orders to the bank
authorizing it to receive the remaining warrants issued un-
der the contract, the bank had such a special interest as
authorized it to proceed by mandamus to compel the ordi-
nary to enter the building contract on his minutes. Jones
v. Bank of Cumming, 131 Ga. 614, 63 S. E. 36.
A person who has made a valid written contract with
the county authorities has a legal right, though a non-resi-
dent of the State, to have the contract entered on such
minutes. If the county authorities refuse to make the en-
try the judge of the superior court should by mandamus
compel them to do so. Milburn v. Commissioners of Glynn
County, 112 Ga. 160, 37 S. E- 178.
Same — Curative Effect. — Entry after the completion of the
work, in compliance with a judgment in mandamus pro-
ceedings instituted to compel the entry of the contract on
the minutes, cures the defect resulting from a failure to
enter the contract on the minutes before the work was be-
gun or completed. Wagener v. Forsyth County, 135 Ga.
162, 68 S. E. 1115.
Same — Against Successors in Office. — Where the success-
ors in office of the commissioners fail and refuse to enter
the contract upon their minutes, they may be compelled
by mandamus to do so. Weathers v. Easterling, 153 Ga.
601, 113 S. E. 152.
Same — Contract Must Be Valid. — The contract must be
prima facie legal. Weathers v. Easterling, 153 Ga. 601, 113
S. E- 152; Board of Commissioners of Morgan County v.
MacDougald, 157 Ga. 595, 122 S. E. 317.
Compliance must be alleged in the plaintiff's petition.
Carolina Metal, etc., Co. v. Taliaferro County, 28 Ga. App.
57, 58, 110 S. E- 331; Milburn v. Glynn County, 109 Ga. 473,
34 S. E. 848.
Waiver of Non-Compliance. — Failure to comply with this
section is waived where no objection is made until after
verdict. Early County v. Fielder, etc., Co., 4 Ga. App.
268, 63 S. E. 353.
Effect on Tax Levy. — It is not essential to the validity
of a tax levy for specified purposes that contracts for ef-
fectuating such purposes should have been previously made
and entered on the minutes. Blalock v. Adams, 154 Ga.
326, 332, 114 S. E- 345.
Assignment Not within Section. — An assignment by a
county of claims to a certain bonus was held not to be such
a contract as is contemplated by the section. Brown v.
Ruthledge, 20 Ga. App. 118, 92 S. E. 774.
A contract by the county board of education with a per-
son for the transportation of pupils to and from a public
school is not one which is required by § 386 of the Code
of 1910 to be in writing and spread upon its minutes. Board
of Education v. Hunt, 159 Ga. 749, 126 S. E- 789.
The creation of the relation of principal and agent be-
tween a city and a county by which the former authorizes
the latter to contract in behalf of the city for the paving
of its streets, which are to constitute links in an inter-
connecting county-seat highway which the State Highway
Department and the county propose to construct, is not
such a contract as is required to be in writing and spread
[82]
§ 387
CONTRACTS, HOW MADE BY COUNTIES
§ 389
upon the minutes of the board of county commissioners of
such county. Faver v. Mayor, 159 Ga. 568, 126 S. E. 464.
This is especially so when such appointment is made by
resolution of the mayor and council of the city, which is
spread upon the minutes thereof, and where the contract
between the county and the contractor for such paving is in
writing and entered upon the minutes of the board of
county commissioners. Faver v. Mayor, 159 Ga. 568, 126
S. F. 464.
§ 387. (§ 344.) Mode of contracting in cer-
tain cases. — Whenever it becomes necessary to
build or repair any court-house, jail, 'bridge,
causeway, or other public works in any county
in this State, the officer having charge of the
roads and revenues and public buildings of such
county shall cause the same to be built or repaired
by letting out the contract therefor to the lowest
bidder, at pu'blic outcry, before the court-house
door, after having advertised, the letting of said
contracts as hereinafter provided: Provided, that
such county authorities shall have authority to re-
ject any and all bids at such public letting, and
if in their discretion the public interest and
economy require it, such county authorities may
build or repair any public buildings, bridges, cause-
ways, or other public property in the county, by
contract or sealed proposals, to be invited under
the same provisions as to specifications and like
informations as are provided in the following sec-
tions. Acts 1878-9, p. 159; 1880-1, p. 183.
See 4 Cum. Dig. 281; 3 Fnc. Dig. 743; 2 Cum. Dig. 1018;
2 Fnc Dig. 545.
As to bridges between counties, see §§ 419-423. As to
penalty on ordinary for non-compliance, see P. C, § 283.
Editor's Note.— The Act of August 17, 1920 (Ga. Laws,
1920, p. 58), does not amend this section or §§ 386 and 388.
Southwestern R. Co. v. Wright, 156 Ga. 1, 13, 118 S. F.
552. It does, however, limit its application in counties hav-
ing a chain gang. See note to § 389.
Provision Is Mandatory. — The requirement of this stat-
ute, that the building of any bridge or other public work
shall be by contract let out as provided, is mandatory.
Garrison v. Perkins, 137 Ga. 744, 754, 74 S. F- 541.
It necessarily follows that an ordinary is without author-
ity to construct bridges costing over $300, by purchasing
steel and other material from which to construct such
bridges by the use of the labor of the convicts. Garrison
v. Perkins, 137 Ga. 744, 756, 74 S. F- 541.
Contracts must be let "to the lowest bidder" as pro-
vided by statute. Bird v. Franklin, 151 Ga. 4, 105 S. F.
834.
Remedy for Noncompliance. — Proceedings in the nature of
quo warranto are not the proper remedy for a failure to
comply with this section. McDonough v. Bacon, 143 Ga.
283, 84 S. F. 588.
Taxpayers may, within a reasonable time after a con-
tract has been let, enjoin the enforcement of the same for
a noncompliance with the law in the letting, and can not
be regarded as in laches when steps are taken within less
than a month from the date when the contract is entered
upon the minutes. Bird v. Franklin, 151 Ga. 4, 105 S. F.
834.
Extent of Authority. — Where an ordinary made a con-
tract on behalf of the county he was not authorized there-
after to accept written orders given by the contractor to a
bank, from which the latter had borrowed money to use
in connection with the contract, for the delivery of the
warrants for the balance of the contract price to such bank.
Jones v. Bank, 131 Ga. 614, 63 S. E- 36.
A hoard of commissioners of roads and revenues, with
jurisdiction over county matters and county finances, may
act under this section. Matthews v. Hussey, 148 Ga. 526,
97 S. F. 437.
What Is a Public Bridge. — A bridge which constitutes
a portion of the public road is necessarily a public bridge.
Farly County v. Fain, 2 Ga. App. 288, 58 S. F. 528.
§ 388. (§ 345.) What notice shall be given.—
Whenever the contract is likely to cost a sum
greater than five thousand dollars, the proper of-
ficer shall give notice in the public gazette wherein
the sheriff's sales are advertised, once a week for
four weeks, and by posting a written notice at the
court-house door for a like time, which notice and
advertisements shall embrace such details and
specifications as will enable the public to know the
extent and character of the work to be done, and
the terms and time of payment. When the work-
to be done is likely to amount to less than five
thousand dollars, the notice shall be published
once a week for four weeks, and by posting no-
tice for the same period; and such officer shall
make out^ and post conspicuously in his office, com-
plete and minute specifications of the proposed pub-
lic work, which shall be open to the inspection of
the public. Acts 1878 9, p. 1G0; Acts 1901, p. 20.
See 4 Cum. Dig. 281, 3 Fnc. Dig. 743.
As to bridges between counties, see § 420. As to effect
of Act of 1920 (Ga. Laws, 1920, p. 58), see §§ 387, 389, and
notes thereto.
"Terms and Time of Payment." — This section is not
complied with by a notice which states that certain pro-
portionate parts of the contract price shall be paid at cer-
tain stages of the construction, without fixing the dates
when such payment shall be made, or when the building
shall be commenced or completed. Scott v. Crow, 121 Ga.
68, 48 S. E. 691. See also, Dyer v. Frwin, 106 Ga. 845, 33
S. F. 63.
Details and Specifications. — It is not necessary that all
of the details of the plans and specifications of the archi-
tect on file should be embraced in the publication. It is
permissible to refer to them for additional detailed infor-
mation. Pilcher v. English, 133 Ga. 496, 66 S. E- 163;
Marshall v. County of Floyd, 145 Ga. 112, 88 S. E. 943.
An exact or an approximate price at which the contract
will be let need not be stated in the notice. Pilcher v.
English, 133 Ga. 496, 66 S. F. 163.
Notice Should Invite Competition. — The advertisement
should invite all reasonable competition. A failure in the
advertisement to comply with the terms of the law in this
respect will render the contract void. Bird v. Franklin,
151 Ga. 4, 105 S. F. 834.
Requiring contractor to accept a ten per cent profit is
not authorized by the statute. Such a provision in an ad-
vertisement is illegal, and a contract made in pursuance
thereof is void. Bird v. Franklin, 151 Ga. 4, 105 S. E. 834.
The correct date on which bids will be received must
be stated in each advertisement. Sammons v. Sturgis, 145
Ga. 663, 89 S. E. 774.
Effect of Non-compliance. — Non-compliance with this sec-
tion renders the contract so made void. Dyer v. Frvin, 106
Ga. 845; Sammons v. Sturgis, 145 Ga. 663, 89 S. E. 774;
Bird v. Franklin, 151 Ga. 4, 105 S. F. 834.
Substantial Compliance. — The carrying -out of a contract
should not be enjoined when there has been a substantial
compliance with this section. Anderson v. Newton, 123 Ga.
512, 51 S. F. 508; Pilcher v. English, 133 Ga. 496, 66 S. F-
163.
Quo warranto is not the proper remedy for non-compli-
ance with this section. McDonough v. Bacon, 143 Ga. 283
84 S. F- 588.
§ 389. (§ 346.) Contractors to give bond.
Counties with chaingangs. — Contractors who are
awarded contracts shall be required to give bond
in double the amount of the bid, with two good and
solvent securities, for the faithful performance of
the contract, and to indemnify the county for any
damages occasioned by a failure to perform the
same within the prescribed time. And it shall be
unlawful to let out any contract for building or re-
pairing any public building, bridge, or other public
work, unless the provisions of these sections are
complied with; and any contractor doing, or having
done, any _wrork of the kind in airy other manner
shall not be entitled to receive any pay therefor:
Provided, that the requirements of these sections
shall not apply to the building or repairing of any
public bridge, building, or other work when the
same can be done at a less cost than three hun-
dred dollars, but such officer may have such work
of building or repairing done by hiring hands and
[83]
§ 389(1)
CONTRACTS, HOW MADE BY COUNTIES
§ 389(2)
furnishing materials. Provided further, that in any
county having a chaingang the County Commis-
sioners of such county or other persons having
charge of such works, shall have the power and
authority to purchase material for and use the con-
victs in building or repairing any public building,
bridge, causeway, or other public works in said
county, and in such cases the three preceding sec-
tions, Paragraphs 386, 387 and 388, shall not apply.
Where such material is purchased and such work
done with the convicts the county authorities of
such county may use the funds of said county aris-
ing from taxes levied for such purposes in pur-
chasing said material and in supporting and. main-
taining the convicts while said work is being done.
Acts 1878-9, p. 159; 1889, p. 49; Acts 1920, p. 58.
As to bridges between counties, see § 421. As to effect of
not giving bond, see §§ 389 (1) et seq.
Editor's Note.— This section (Acts 1878-9, p. 159), was
amended by an Act of 1920 (Ga. Laws, 1920, p. 58). By
this amendment the second proviso was added, allowing
work to be done by chain-gangs, and dispensing with com-
pliance with §§ 386-388 in such cases. This act does not
however amend the preceding sections. Nor is the act un-
constitutional by reason of either Art. 3, § 7, par. 7 (Code,
§ 6437), or Art. 3, § 7, par. 17 (Code, § 6445) of the Georgia
Constitution. See Southwestern R. R. Co. v. Wright, 156
Ga. 1, 118 S. E. 552.
For the conflicts between this and § 389 (1), see the edit-
or's note to § 389 (1).
Effect of Amendment.— The Act of 1920 (Ga. L. 1920, p.
58), amending this section, properly construed, gave the
counties no additional power of taxation. Its purpose was
to permit counties having a chain-gang, in their discre-
tion, to purchase material for and use the convicts in build-
ing or repairing any public building, bridge, causeway, or
other public works, whatever the cost might be, where
theretofore, except as to work costing less than $300, it had
been mandatory, under the law, that such work be let out
by contract. Central, etc., R. Co. v. Wright, 33 Ga. App.
96, 101, 125 S. E. 520.
The act merely allowed a different method of having an
improvement made for which the counties were already
empowered to levy a tax. See Blalock v. Adams, 154 Ga.
326, 114 S. E. 345. Apparently the act has no reference
whatever to the improvement of public roads as distin-
guished from bridges and other public works. Central,
etc., R. Co. v. Wright, 33 Ga. 96, 101, 125 S. E. 520.
Quo warranto is not the proper remedy for failure to
comply with this section. McDonough v. Macon, 143 Ga.
283, 84 S. E. 588..
§ 389(1). Contract for public work void without
bond. — No contract with this State, a county, mu-
nicipal corporation, or any other public board or
body thereof, for the doing of any public work shall
be valid for any purpose, unless the contractor shall
give bond, payable to the State or other body con-
tracted with, with good and sufficient surety, for
the use of the obligee and of all persons doing work
or furnishing skill, tools, machinery, or materials
under or for the purpose of such contract, condi-
tioned for the completion of the contract in accord-
ance with its terms, for saving the obligee free
from all costs and. charges that may accrue on ac-
count of the doing of the work specified for the
payments as they become due of all just claims
for work, tools, machinery, skill and materials fur-
nished by persons under, or for the purpose of,
such contract, and for a compliance with the laws
appertaining thereto. The penalty of such bond
shall be not less than the contract price. Acts 1916,
pp. 94, 95.
As to mechanics lien, see § 3352. As to laborers liens, see
§ 3334. As to contractor's bond for building, etc., bridges be-
tween counties, see § 421.
Editor's Note.— In view of the fact that §§ 389 and 389 (1)
apparently cover the same subject matter in some respects,
it is thought well to give the history of the legislative acts
regarding this subject since the Code of 1910.
In the first place the bond under § 389 applies to public
works of counties only, and for the sole purpose of in-
demnifying the county for failure to perform the contract.
The Acts of 1910, p. 86, supplemented this by providing
for a bond to indemnify the furnisher of labor, machin-
ery and materials, thus protecting the county in this
respect. This act, however, was repealed in 1916, by the
enactment of this section, et seq. The Act of 1916 (this
section) in addition to the indemnity provided by the Act
of 1910, and § 389 of the Code of 1910 extends the scope to
States, Municipalities and other public boards, so that
the provisions of § 389 of the Code of 1910 and of the re-
pealed Act of 1910 seem to be covered.
As § 389 was amended in 1920 by adding a proviso (im-
material to this discussion) it is evident that it was not
the intention of the legislature to entirely supersede it by
the enactment of 1916. However the following conflicting
provisions should be noted, in which the 1916 act would
seem to prevail. This section provides that unless the bond
is given all contracts for public work shall be void. Sec-
tion 389 exempts all contracts for repair under three hun-
dred dollars. This section provides that the penalty shall
not be less than the contract price. Section 389 provides
that the bond shall be double the amount of the bid.
Constitutionality. — The Act of 1916, from which this and
the four following sections were taken, is constitutional.
The act did not contain matter different from that ex-
pressed in the title nor does it violate the due-process
clause of the constitution. Ty Ty. Consolidated School
District v. Colquith Lumber Co., 153 Ga. 426, 112 S. E-
561. See note of this case under the section immediately
following.
Necessity of Stating "Use" in Bond. — Where a bond was
given by a contractor for the doing of public work, paya-
ble to a county of this State, with a compensated bonding
company as surety, which does not state that the bond is
for "the use of the obligee and all persons doing work or
furnishing skill, tools, machinery," etc., one who furnished
materials to the contractor to be used, and which were
used, in the performance of his contract with the county
can not maintain an action therefor in his own name against
the principal and surety on the bond, by virtue of the pro-
visions of the act approved August 19, 1916, from which this
and the four following sections are codified. American
Surety Co. v. Small Quarries Co., 157 Ga. 33, 120 S. E. 617;
Hannah v. Lovelace -Young Lumber Co., 159 Ga. 856, 858,
120 S. E. 617; United Supply Co. v. United States Fidelity
Co., 32 Ga. App. 472, 123 S. E. 907; Aetna Cas. Co. v.
Leathers, 33 Ga. App. 444.
Liability of Municipality for Failing to Take Bond. — A
municipal corporation is not liable for material furnished
to a contractor to be used in the construction of a public
building in the city, upon the ground that the municipal
authorities have failed to take from the contractor a bond
as required by the similar section of the Act of 1910, which
was superseded by this section. Woodward Lumber Co. v.
Grantville, 13 Ga. App. 405, 79 S. E- 221.
Sufficiency of Bond. — For a case holding that a bond was
not sufficient under the corresponding section of the Act of
1910 (superseded by this section), see Grantville v. Fidel-
ity, etc., Co., 139 Ga. 53, 76 S. E. 575.
§ 389(2). Approval and filing of bond. — Such
bond shall be approved and filed with the treas-
urer, or the person performing the duties usually
performed by a treasurer, of the obligee named
therein, unless the contract be for the erection,
improvement or repair of buildings for a
State institution, in which case it will be ap-
proved and filed with the board or officer
having the financial management of such in-
stitution; provided, however, that should the
surety named in said bond be other than a
surety company authorized by law to do business
in the State of Georgia, such bond shall not be ap-
proved and filed unless said surety make and file
with said bond an affidavit stating under oath that
said surety is the fee simple owner of real estate
equal in value to the amount of the bond over and
above any and all liens, encumbrances, and exemp-
tion rights allowed by law. If such bond, together
with affidavit when necessary, be not taken in man-
ner and form as herein required, the corporation or
body for which work is done under the contract,
shall be liable to all persons furnishing labor, skill,.
[84]
§ 389(3)
CONTRACTS, HOW MADE BY COUNTIES
§ 393
tools, machinery or materials to the contractor
thereunder, for any loss resulting to them from such
failure. No agreement, modification, or change in
the contract or change in the work covered thereby,
nor any extension of time for the completion of the
contract shall release the sureties of said bond.
Acts 1916, pp. 94, 95.
Constitutionality. — The provision of this section that if
the bond contemplated be not taken as required, the cor-
poration or body for which work is done under the contract
shall be liable to persons furnishing labor, materials, etc.,
for any loss resulting from such failure, does not render
the act repugnant to art. 7, § 6, par. 2, of the constitu-
tion of the State of Georgia, which places a limitation
upon the taxing power of counties. Ty Ty Consolidated
School District v. Colquitt Lumber Co., 153 Ga. 426, 112
S. E. 561. As to constitutionality of entire act, see note
to section immediately preceding.
§ 389(3). Insolvent or Insufficient Surety. —
AVhenever, in its judgment, any of the sureties in
such bond have become insolvent, or for any cause
there are no longer proper or sufficient sureties on
said bond, the obligee may require the contractor
to strengthen said bond or to furnish a new or
additional bond within ten days, and thereupon, if
so ordered by such o'bligee, all work on such con-
tract shall cease unless such new or additional bond
is furnished. If such bond be not furnished within
such time, the obligee may determine the contract
and complete the same as the agent, and at the ex-
pense of, such contractor and his sureties. Acts
1916, pp. 94, 96.
§ 389(4). Action on Bond. — Any person entitled
to the protection of such bond may maintain an ac-
tion thereon for the amount due him, subject to the
provisions hereinafter stated. If suit is instituted
on the bond of the contractor by the obligee named
therein, any person doing work or furnishing skill,
tools, machinery or materials to the contractor in
the construction or repair of any public building or
public work belonging to the obligee, and payment
for which has not yet been made, shall have the
right to intervene and be made a party to said ac-
tion, and have his rights and claims adjudicated in
such action, and have judgment thereon, subject,
however, to the priority of the claim and judgment
of the obligee. If the full amount of the liability of
the surety on said bond is insufficient to pay the
full amount of said claim and demands, then, after
paying the full amount due the obligee in
said bond, the remainder shall be distributed
pro rata among said interveners. If no suit
shall be brought by the obligee on said bond
within ninety days after the completion of the con-
tract and the acceptance of said public building or
public work by the proper public authority, then
the person doing work or furnishing skill, tools,
machinery or materials to the contractor for said
public building or public work, shall, upon appli-
cation therefor and furnishing to the official who
has the custody of said 'bond an affidavit that labor,
skill, tools, machinery or materials for the prose-
cution of such building or work has been suppplied
by him and payment for which has not been made,
be furnished with a certified copy of said, bond,
upon which he shall have a right of action against
said contractor and the surety on said bond, or
against either of them,' and he shall have the right
to prosecute the same to final judgment and execu-
tion. The certified copy of the bond so furnished
shall be primary evidence of said bond, and shall
It
be admitted in evidence without further proof. Any
other person having a cause of action on such bond
shall have the right to intervene and be made a
party to such action, and the court shall determine
the rights of all parties thereto. If the amount
realized on said bond be not sufficient to discharge
all such claims in full, such amount shall be dis-
tributed pro rata among the intervening parties.
Acts 1916, pp. 94, 96.
See notes to §§ 389 (1) and (2). As to strict construc-
tion of sureties liabilities, see § 3540.
§ 389(5). Limitation of action. — No action can
be instituted on said bond after one year from the
completion of the said contract and the acceptance
of said public building or public work by the proper
public authorities. Acts 1916, pp. 94, 97.
§ 390. Public work, competition for. — When-
ever public work for the State, or any county there-
of, is to be let out by bidding, no person shall, by
himself or otherwise, prevent, or attempt to pre-
vent, by any means whatever, competition in such
bidding. No person who desires to procure such
work for himself or another shall, by any means
whatever, prevent, or endeavor to prevent, any one
from making a bid therefor, nor shall such person
so desiring the work procure or induce another to
withdraw a bid for the work. Acts 1896, p. 73.
As to penalty for violation, see P. C, § 741.
§ 391. Oath to be made by successful bidder. —
Any person who procures such public work by bid-
ding shall, before commencing to do the work,
make an oath in writing that he has not directly
or indirectly violated the foregoing section. The
oath shall be filled with the officer whose duty it is
to make the payment; if the contractor be a co-
partnership composed of more than one person, all
of the copartners, and any officer or agent or other
person who may have represented or acted for
them in bidding or procuring the contract, shall also
unite in making the oath. If the contractor be a
corporation, all officers, agents, or other person
who may have acted for or represented the corpora-
tion in bidding or procuring the contract shall make
the oath. Acts 1896, p. 73.
As to penalty for violation, see P. C, § 741.
§ 392. Penalty if oath should be false. — If the
oath prescribed in the foregoing section shall be
made and should 'be false, the person making it
shall be punished for false swearing, and the con-
tract shall be void, and all sums paid by the State
or county on the contract may be recovered by ap-
propriate suit.
See P. C, § 262.
§ 393. Certain purchases prohibited. — No ordi-
nary, count}' commissioner, board of county com-
missioners, or any other county officer authorized
or empowered by law to use public or count}'- funds
for the purchase of goods or property of any kind
for public or county purposes, shall purchase said
goods or property from any store in which he is
an employee, or in which he is directly or indirectly
interested, or from any person or partnership of
which he is a member, or by whom he is employed,
unless by sanction of the majority of the board of
county commissioners of the county, or unless it
shall be made clearly to appear that the said indi-
vidual, partnership, or owner of the store offers and
5]
§ 394
COUNTY BUILDINGS, CARE AND INSPECTION THEREOF
§ 402
will sell the goods or property as cheap or cheaper
than it can !be bought elsewhere. Acts 1898, p. 105.
Quo warranto is not the proper remedy for violation of
this section. McDonough v. Bacon, 143 Ga. 283, 84 S. F-
588.
§ S94. Penalty, and contract illegal. — Any
county official violating the provisions of the pre-
ceding section shall be removed from office upon
proper proceedings instituted by any taxpa}^er in
said county, and any contract made in violation of
the provisions of said section shall be illegal.
Quo warranto is not the proper remedy under this sec-
tion. McDonough v. Bacon, 143 Ga. 283, 84 S. F. 588.
§ 394(1). Contracts for lights upon highways.—
The county commissioners in any county in the
State of Georgia having more than two hundred
thousand inhabitants may, in their discretion^ enter
into contracts with corporations, firms or in-
dividuals for the purpose of furnishing lights upon
highways in said counties where, in the judgment
of such commissioners, lights are needed for the
convenience or safety of the public, and pay the
cost of such lights out of the general county funds.
Acts 1923, p. 100.
ARTICLE 4.
County Property.
§ 395. (§ 347.) Deeds for benefit of county. —
All deeds, conveyances, grants, or other instru-
ments, which have been or may be made to any
officer or person for the use and benefit of the
county, vest in such county the title as fully as if
made to such county by name.
§ 396. (§ 348.) County property, how con-
trolled.— The ordinary has the control of all prop-
erty belonging to the county, and may by order
to be entered on their minutes direct the disposal
of any real property which can lawfully be dis-
posed of, and appoint a commission to make the
titles thereto, and fhe conveyance of such commis-
sion in accordance with such order vests the
grantee or vendee with the title of the county.
See § 4796.
Power Not Necessarily Exclusive. — This section does not
vest in the ordinary exclusive power of sale of the county's
property where the General Assembly confers such pow-
ers upon county commissioners of a particular county. Dyer
v. Martin, 132 Ga. 445, 447, 64 S. F. 475.
Who Makes Conveyance. — The ordinary is not permitted
to execute any conveyance himself; he can only appoint
a commission for that purpose. Bennett v. Walker, 64
Ga. 326, 331.
Lease for Ninety-Nine Years. — Commissioners can not
lease county property in such manner as to put it out of
the power of the county authorities, for ninety-nine years,
to devote the property to > the exclusive use of the county.
Equity will enjoin use under such a lease. Town of De-
catur v. DeKalb County, 130 Ga. 483, 61 S. F- 23.
Sale of Undivided Interest. — This section does not war-
rant the sale of an undivided one -fifth of a court-house
and lot, in actual daily use for county purposes. Hun-
nicutt v. Atlanta, 104 Ga. 1, 30 S. F- 500.
§ 397. (§ 349.) Public laws and Supreme Court
reports to be insured. — The officer having charge
of the financial affairs of each county shall keep
insured at a fair valuation against loss by fire all
volumes of the public laws and decisions of the
Supreme Court which have been furnished to the
ordinaries and clerks of the superior courts of
their respective counties. Acts 1882-3, p. 132.
§ 398. (§ 350.) Policies in name of county. —
The policies of insurance shall be in the name of
the county an'd the premiums therefor paid out of
the financies of each county respectively, and in
case of any loss or damage by fire, the county
authorities shall proceed to collect the amount of
loss or policy, and when so collected the proceeds
thereof shall be used in supplying new books of
the kind lost or injured, as far as such proceeds
may be sufficient. Acts 1882-3, p. 132.
ARTICLE 5.
County Buildings, Care and Inspection Thereof.
Supplies for County Offices.
§ 399. (§ 351.) County buildings, etc.— The
county buildings are to be erected and kept in
order and repaired at the expense of the county,
under the direction of the ordinary, who is au-
thorized to make all necessary contracts for that
purpose.
For section conferring power on ordinary, see § 4796.
Power of Commissioners. — County commissioners with
power to levy and taxes, also have the power to act un-
der this section. Dunn v. O'Neill, 144 Ga. 823, 88 S. F-
190.
An act creating a board of commissioners with juris-
diction over county matters and county finances, author-
izes it to contract for the building of a county court-
house. Matthews v. Hussey, 148 Ga. 526, 97 S. F- 437.
Discretion of County Officers. — "The necessities of the
various counties in regard to these matters are to be de-
termined by the peculiar conditions surrounding each county;
and therefore the sound judgment of the county authorities
in each case must be relied upon to provide the public
with proper buildings on the one hand, and to protect the
taxpayer from useless and unnecessary burdens in regard
to such matters on the other." Commissioners of Haber-
sham County v. Porter Mfg. Co., 103 Ga. 613, 617, 30 S.
F. 547.
Authority to Levy Tax. — The ordinary has the power un-
der § 504 to levy an extra tax to carry into effect the pro-
visions of §§ 399, 400, without the recommendation of the
grand jury, but the order levying such extra tax should
clearly and distinctly state the object and purpose for which
it is levied. Barlow v. Ordinary of Sumter County, 47
Ga. 639, 641.
§ 400. (§ 352.) Public buildings and records.
— It is the duty of the ordinaries to erect or re-
pair, when necessary, their respective court-
houses and jails, and all other necessary county
buildings, to furnish each with all the furniture
necessary for the different rooms, offices, or cells,
and to procure a fire-proof safe, or safes, sufficient
to hold at least all the minute-books and books
containing records of judgments, books of officers'
bonds, all recognizances, the bonds of administra-
tors and guardians, the record of wills and of ap-
praisements and sales, unless the court-house has
a fire-proof vault; such books and papers, and all
others that can, must be placed in such safes or
vaults at night, or when the officers are absent.
Act 1796, Cobb, 182.
See note to preceding section.
§ 401. (§ 353.) Court-house rooms.— Such
ordinaries shall designate the rooms in the court-
house to be occupied by each of the county of-
ficers, and enter the same on their minutes, which
they may change from time to time as convenience
may require.
§ 402. Supplies for county offices. — It shall be
the duty of the ordinaries o'r board of county com-
missioners, or other county authorities where such
boards exist, and who have the management of
the revenues of the counties, to furnish coal, wood,
[86]
§ 403
CLAIMS AGAINST COUNTIES
§ 411
lights, furniture, stationery, records, and office
supplies in general, for the different county offices
of the various counties in this State, at the ex-
pense of each county; provided, that this sec-
tion shall only apply to the offices of said officers
in the various court-houses in said counties. Acts
1901, p. 62.
The phrase "office supplies in general" is broad enough
to include a telephone. Floyd County v. Graham, 24 ('.a.
App. 294, 100 S. E. 728.
A county officer having an office in the courthouse is
entitled to have all office supplies and equipment reasonably
necessary to maintain his office in a modern up-to-date
manner. Floyd County v. Graham, 24 Ga. App. 294, 100
S. E- 728.
§ 403. (§ 354.) Court-houses, jails, etc.— The
court-houses, as well as jails, the public grounds,
and other county property are placed in the keep-
ing of the sheriff of their respective counties, sub-
ject to the order of such ordinaries, and it is their
duty to preserve them from injury or waste and
to prevent intrusions upon them.
§ 404. (§ 355.) Jails, how constructed.— The
county jails hereafter constructed must be of suffi-
cient size and strength to contain and keep securely
the prisoners which may be confined therein, and
must contain at least two apartments, properly
ventilated, so as to secure the health of those con-
fined therein — one for males, and one for females.
§ 405. (§ 356.) Grand juries inspect jails. —
The grand juries shall carefully inspect the sani-
tary condition of the common jails of their res-
pective counties at each regular term of the su-
perior court, and make such recommendations to
the ordinaries of their counties in their general
presentments as may be necessary to provide for
the proper heating and ventilation of such jails,
which recommendations it is hereby made the duty
of the several ordinaries of this State to observe
and strictly enforce; such grand juries shall make
such presentments in regard to the general sani-
tary condition of their jails and the treatment
of the inmates of the same as the facts may justify.
Acts 1887, p. 102.
§ 406. (§ 357.) Preceding section specially
charged. — The judges of the superior courts shall
give the preceding section in special charge to
the grand juries in each county in this State at
each regular term of the superior court held in
such counties.
§ 407. (§ 358.) Injuries to public buildings. —
If any person shall designedly destroy, injure, or
deface any public building, the appurtenances
thereto, or the furniture inside, or shall use either
for any indecent purpose, such person shall be
guilty of a misdemeanor, besides being liable for
the damages.
See P. C. 777.
§ 408. (§ 359.) Public buildings and records,
how inspected. — It is the duty of the grand juries
to inspect all the public buildings and other prop-
erty of the county and the county records, and
to report in their general presentments their condi-
tion, and if they report that such ordinaries have
failed to comply with the law touching the same,
it is the duty of the solicitor-general of the cir-
cuit to commence proceedings against them that
they may be compelled so to do, if they do not
in good faith comply by the next term of the
superior court.
§ 409. (§ 360.) Duty of judge of the superior
court. — The judges of the superior court shall,
when necessary, call the attention of the grand
jury to the duties required of such ordinaries in
this Chapter.
ARTICLE (».
Claims Against Counties.
§ 410. (§ 361.) County orders must specify
the fund on which they are drawn. — Except where
otherwise provided by law the ordinaries must
audit all claims against their respective counties,
and every claim, or such part as may be allowed,
must be registered, and he or his clerk must give
the claimant an order on the treasurer for the
same, and in the order he shall specifically desig-
nate upon what particular fund such order is
drawn, and out of which payment is to be made.
Acts 1871-2, p. 69.
See note to succeeding, section.
§ 411. (§ 362.) Claims to be presented, when.
— All claims against counties must be presented
within twelve months after they accrue or become
payable, or the same are barred, unless held by
minors or other persons laboring under disabili-
ties, who are allowed twelve months after the
removal of such disability.
See 4 Cum. Dig. 289; 11 Cum. Dig. 79, 484.
Sufficiency of Presentation — In General. — The writing
should certainly show who makes the demand, for what
reason the demand is made, and the amount thereof. Troup
County v. Boddie, 14 Ga. App. 434, 437, 81 S. E. 376.
Same — Conversations. — Conversations with members of the
board of commissioners, looking to a compromise are not
sufficient presentment. Powell v. County of Muscogee, 71
Ga. 587.
Same — Presentation for Auditing. — A charge that the
party presenting a claim need not use the word "audit,"
but it is sufficient if he presents it for that purpose, and
the ordinary examines it and refuses to allow it, that is,
refuses to audit it and approve it but rejects and disallows
it, is not erroneous. County of Cobb v. Adams, 68 Ga.
51, 53.
Same — Bringing Suit. — The bringing of the suit within
the time limited is a sufficient presentation of the claim
within the meaning of this section. Dement v. DeKalb
County, 97 Ga. 733, 25 S. F- 382; Elbert County v. Brown.
16 Ga. App. 834, 86 S. F. 651; Mitchell County v. Dixon,
20 Ga. App. 21, 92 S. F. 405.
But the petition must not only be filed but served within
twelve months after the claim accrues. Pearson v. New-
ton County, 119 Ga. 863, 147 S. E- 180; Godfrey v. Jeffer-
son County, 21 Ga. App. 384, 94 S. E- 604.
Averment of Presentation — Sufficiency in General. — A
statement by plaintiff that she had in writing demanded
compensation from said commissioners, who had refused
payment thereof, is sufficient averment of presentation. Ad-
kins v. Crawford County, 135 Ga. 679, 70 S. E. 335.
Same — Writing Must Be Alleged. — An allegation that the
claim was presented "as provided by law'.' will not sup-
ply the place of a distinct allegation that it was presented
in writing. Sparks v. Flovd Count v, 15 Ga. App. 80, 82
S. F. 583.
Same — Allegation of Time. — Allegations that the claim
arose "some time during the year 1910," and that the plain-
tiff's claim for damages was filed on October 14, 1911, are
not sufficient to show presentation within twelve months.
Elbert County v. Chapman, 15 Ga. App. 197, 82 S. E. 808.
Same — Presentation of Void Note. — Where a plaintiff
seeks to recover money loaned to a county and used by it.
an allegation that he presented the notes evidencing the
loan, is not a sufficient averment of presentation. The
notes were illegal. The statute contemplates present legal
action. Butts County v. Wright, 143 Ga. 253, 84 S. E. 443.
County Warrants. — County warrants are not such "claims''
as are required to be presented within twelve months after
they accrue or become payable. Jackson Banking Co. v.
[87]
§ 412
BRIDGES BETWEEN COUNTIES
§ 419
Gaston, 149 Ga. 31, 99 S. E. 30; Commercial Trust Co. v.
Laurens County, 267 Fed. 897.
But a claim to be subrogated to the rights of former
holders of county warrants paid with money of claimant
is one which must be presented within 12 months after
accrual, under this section. Farmers' Loan, etc., Co. v.
Wilcox County, 298 Fed. 772.
Garnishment Not Allowed. — The system provided by
law for the payment of claims against counties is to be
adopted in all cases. This system can not be preserved
by allowing counties to be garnished. Dotterer v. Bowe,
84 Ga. 769, 770, 11 S. E- 896.
§ 412. (§ 363.) Judgment vs. county. — The
private property of the citizens of a county shall
not be bound by any judgment obtained against
the county, but such judgment, if binding, shall
be satisfied from money raised by lawful taxa-
tion.
ARTICLE 7.
Annual Reports of County Officers.
§ 413. (§ 364.) County officers to make an-
nual returns. — The ordinaries, county treasurers,
clerks of the superior courts, and sheriffs of the
various counties of the State shall make a return,
under oath, to the grand jury of their respective
counties on the first day of each term of the su-
perior court, a just and true statement of the
amount of money received by them belonging to
the county, the source from which the same was
received; also, their expenditures, *accomp'anied
with proper vouchers. Acts 1876, p. 13.
See § 576.
As to compelling reports, see § 527.
§ 414. (§ 365.) Duty of grand juries. — When
the returns provided for in the preceding section
shall have been made, the grand jury shall exam-
ine the same, and if, found correct, indorse their
approval thereon, and attach the same to their
general presentments, to be filed in the clerk's
office of the superior court. But if found incor-
rect, the grand jury, through their foreman, shall
return said returns to the officer making the same,
plainly and distinctly setting forth in writing the
grounds of their disapproval, and require said
officer to appear before said jury and explain the
errors complained of. Acts 1876, p. 13.
§ 415. (§ 366.) Officer failing to make returns,
how dealt with. — Should any officer fail or refuse
to make the return required by section 413, the
foreman of the grand jury shall notify the presid-
ing judge of said failure instanter; and said judge
shall issue an order requiring said delinquent of-
ficer to come forward and make the return as
required by said section, or, in default, be at-
tached for contempt. Acts 1876, p. 14.
ARTICLE 8.
County Auditors and Expert Accountants.
§ 416. County auditor, when clerk shall be. —
In all counties which have within their territory
a city of more than eighty-five thousand popula-
tion, and which also have a board of commis-
sioners of roads and revenues and a clerk of the
same, such clerks shall be ex-officio county audi-
tors of such counties, and they shall be paid a
salary of six hundred dollars per annum out of the
county treasury. Acts 1905, p. 107.
[
§ 417. Duties of auditor. — It shall be the duty
of such county 'auditors, under the direction of
their respective boards of commissioners of roads
and revenues, and in accordance with such rules
as may be prescribed by said boards, to audit the
accounts of the county treasurers, tax-collectors,
and of all other officers of the county whose ac-
counts now are, or may hereafter be, required by
law to be audited.
As to performance of similar duties by grand jury, see
P. C, §§ 840, 841.
§ 418. Expert accountant in other counties. —
In counties other than those mentioned in the two
preceding sections, the ordinary, or commis-
sioners of roads and revenues in the counties hav-
ing such commissioners, are authorized, whenever
they deem it necessary to do so, to employ an
expert accountant to examine and report on the
books, vouchers, and accounts of any county of-
ficer whose duty it is under the law to handle
county funds. The expert accountant may reside in
the county in which he is to be employed, or else-
where. Acts 1901, p. 57; 1905, p. 107.
As to performance of similar duties by grand juries, see
P. C, §§ 840, 841.
ARTICLE 9.
Bridges Between Counties.
§ 419t. (§ 367.X Bridges between counties,
how built.— -Whenever it becomes necessary to
build or repair any public bridge over any water-
course in this State which divides one or more
counties from each other, the ordinary, commis-
sioners of roads and revenues, or other county of-
ficers having in charge the roads, bridges, and
revenues of said counties joining at such water-
course, shall cause the same to be built or re-
paired by letting out the contract therefor to the
lowest bidder, at public outcry, at the location
of such bridge, after having advertised the letting
out of said contract as hereinafter provided.
Provided such county authorities shall have au-
thority to reject any and all bids and if in their
discretion the public interest and economy require
it, such county authorities may build or repair
any such bridges by contract or sealed proposals,
to be invited under the same provisions as to
specifications and like information as are pro-
vided in the following sections and said bids by
contract or sealed proposals may be received,
opened and awarded at the county site of any
one of the joint counties as may be agreed upon.
Provided further, counties working chaingangs
be allowed to buy material and construct bridges
costing [not] more than $300.00 with convict la-
bor, without advertising the same. Acts 1880-1, p.
132; Acts 1920, p. 60.
See §§ 755, 757.
See 2 Cum. Dig. 1038; 2 Enc. Dig. 557.
As to bridges between a county and another state, see
§ 424.
Editor's Note.— The amendment of 1920 (Ga. Laws, 1920,
p. 60), added the provisions allowing the rejection of bids
received at public outcry, and the acceptance of sealed
bids, and the further proviso allowing the erection of such
bridges by chain gangs, the material being bought by
the county authorities.
The word "not" inclosed in brackets in the proviso at the
end of the section seems to express the legislative intent,
although it was omitted from the act.
Stream Wholly in One County. — This section is appli-
8]
5 420
INTERSTATE BRIDGES AND NAVIGABLE STREAMS
§ 424
;able to a bridge over a stream constituting a county
ine, although the stream is wholly within one of the
;ounties. Brooks County v. Carrington, 7 Ga. App. 225,
56 S. E- 625.
It is not the duty of the county authorities to supervise
;he work done by a contractor to build a public free
jridge over a stream dividing two adjacent counties, the
contract having been duly made. Smith v. Wilkes, 79
5a. 125, 4 S. E- 20.
Compliance Necessary in Order to Compel Contribution.
—A county which causes a bridge to be constructed over
i watercourse dividing it from another county can not
:ompel the latter to pay any portion of the expenses thus
ncurred, unless the contract under which the work is
lone be made in the manner prescribed by law. Forsyth
bounty v. Gwinnett County, 108 Ga. 510, 33 S. E- 892.
Section 748 Inapplicable. — The provision of § 748, making
:ounties primarily liable for injuries caused by reason of
my defective bridges, whether erected by contractors or
)y the county authorities, is not applicable to a bridge
irected over a watercourse which divides one county from
mother. To bridges of the latter class §§ 419 and 423 apply;
md liability attaches only in accordance with § 623 of that
:ode, i. e., upon failure of the county to take a sufficient
>ond from the contractor. Brooks County v. Carrington,
' Ga. App. 225, 66 S. E. 625; I^aurens County v. McLen-
lon, 19 Ga. App. 246, 91 S. E. 283.
§ 420. (§ 368.) Notice required. — Whenever
he contract is likely to cost a sum greater than
ive thousand dollars, the proper officers of said
counties shall give notice in the public gazettes
vherein the sheriff's sales for such adjoining
:ounties are advertised, once a week for four
veeks, and by posting a written notice at the
;ourt-house door of said adjoining counties,
which advertisement and notice shall embrace
mch details and specifications as will enable the
)ublic to know the extent and character of the
vork to be done, and the terms and time of pay-
nent. When the work to be done is likely to cost
ess than five thousand dollars, the notice shall
)e published as provided in this section, once a
veek for four weeks, and by posting, as hereto-
ore provided, for a like period of four weeks;
md said officers shall make out, and post conspicu-
)usly in their said offices, complete- and minute
specifications of the proposed work, which shall be
)pen to the inspection of the public, and said officers
nay in their discretion employ some competent
mgineer or builder to examine and prepare plans
md specifications of such proposed work, for which
service he shall be paid reasonable compensation by
he said counties in the same proportion as said
counties are required to pay for said work. Acts
L880-1, p. 132; Acts 1920, p. 60.
Editor's Note. — The period of advertisement was re-
luced from eight to four weeks by the amendment of 1920
[Ga. Laws, 1920, p. 60), even where the cost is likely to
:xceed $5,000. Therefore, the case of Brantley v. I,ee, 139
ja. 600, 77 S. E. 788, is inapplicable to the section in its
)resent form.
§ 421. (§ 369.) Bond of contractors.— Con-
xactors who are awarded contracts under this and
:he two preceding sections shall be required to give
jond in double the amount of the bid, with two
?ood and solvent securities, who shall justify be-
fore signing said bond, conditioned for the faithful
performance of the contract, and to indemnify the
:ounties for any damages occasioned by a failure to
perform said contract within the time provided, and
<eep said bridge, or repairs made thereon, in good
;ondition for a period of time not less than seven
years, and there shall be as many originals of said
Dond executed as there are counties interested in
said bridge; one of said originals shall be filed with
the proper authority representing each of said
[
counties, to be kept as other official bonds. Provided,
that such contract may be let out under existing
laws without requiring the aforesaid condition in
the contractor's bonds, "to keep said bridge or the
repairs made thereon, in good condition for a period
of time not less than seven years" if, in the opinion
of the Commissioners of Roads and Revenues, or of
the Ordinary in counties where there are no such
Commissioners, it would be to the public interest to
dispense with said condition in said bonds. Acts
1880-1, p. 132; Acts 1920, p. 60.
Editor's Note.— The Act of 1920 (Ga. Laws, 1920, p. 60),
amending this section, added the proviso allowing the let-
ting of contracts without requiring the condition that the
contractor keep the bridge in repair, when the county au-
thorities consider the omission to the public interest.
Bond Exempting Contractor from Certain Repairs. — This
section is not duly complied with when the bond contains a
stipulation exempting the contractor from all liability to
make repairs rendered necessary by "actions of the ele-
ments." Forsyth County v. Gwinnett County, 108 Ga. 510,
33 S. E. 892. But consider the effect of the proviso added
by the amendment of 1920. The greater would probably in-
clude this lesser exemption.
Effect on Recovery of Damages Due to Defects. — A peti-
tion against a county to recover damages on account of a
defective county-line bridge must allege that the defendant
failed to take bond required by this section. Willingham v.
Elbert County, 113 Ga. 16, 38 S. E. 348.
§ 422. (§ 370.) Repairs under five hundred
dollars.— The provisions of these sections shall not
apply to the repairing of any bridge when the same
can be done at a less cost than five hundred dollars;
but such officers may have such repairing done by
hiring hands and furnishing material, or by private
contract for such repairs. Acts 1880-1, p. 132.
No bond is necessary under this section. Paxton v. Ber-
rien County, 117 Ga. 891, 45 S. E. 266.
§ 423. (§ 371.) Payment, how made.— The
payment for all work done under the provisions of
the four preceding sections, shall be in accordance
with the provisions of section 755 of this Code, and
the remedy to enforce payment from any of said
counties shall be as provided in section 756 of this
Code: Provided, that nothing in these sections shall
affect any counties having local laws affecting this
subject. Acts 1880-1, p. 132.
ARTICLE 10.
Bridges in Which United States and Other States
are Interested, and Bridges on Navigable
Streams.
§ 424. (§ 372.) Bridges connecting border
counties with adjacent States. — Counties lying
adjacent to any river on the border, or forming the
boundary between this State and another, shall
have the same power, acting by and through the
proper county authorities, to build and maintain
bridges over such river as the counties of this State
now have to build and maintain bridges over
streams lying wholly within their borders: Pro-
vided, that this power shall not be exercised except
to co-operate with the proper authorities of the
adjacent State in building and maintaining such
bridges, and on the principle that each State is to
build simultaneously from its own bank to the mid-
dle of the river and afterwards maintain and keep
up the part of bridge which it has built; no bridge
shall be erected under this section at any point
where the river exceeds, at low-water mark, two
89 ]
§ 425
CO-OPERATION OF COUNTIES WITH MUNICIPALITIES
§ 431(3)
thousand feet in breadth. Acts 1895, p. 78; Acts 1920
p. 62.
Editor's Note.— By an Act of 1920 (Ga. Laws, 1920, p. 62),
the maximum breadth of the stream over which such bridge
may be built is increased from one to two thousand feet.
§ 425. (§ 373.) Contract with United States
for building bridges, when. — Commissioners or
other authorities having jurisdiction of roads and
revenues of any county in this State may con-
tract and pay out of the funds of their respective
counties such sums of money as they may deem
equitable and just to the authorities of the United
States for the fair proportion of such county for the
cost of building any bridge that said commissioners
or other county authorities may deem necessary to
erect across any stream that may divide any county,
or part of any county, from lands the jurisdiction
over which may have been ceded to the government
of the United States for any purpose:' Provided, it
shall forever thereafter be the dut}^ of such au-
thorities of the United States to keep such bridges
in repair, and renew them as often as may be neces-
sary, and keep them open for the free and uninter-
rupted travel of the public. Acts 1895, p. 76.
§ 426. (§ 374.) Jurisdiction of United States.—
The United States are hereby vested with full and
complete jurisdiction over grounds necessary for the
erection of piers and approaches to such bridges on
each side of such streams, so far as may be neces-
sary for the erection, repair, and protection of such
bridges and approaches.
§ 427. Bridges on navigable streams. — The con-
sent of the State is given to, and authority is hereby
vested in, the ordinaries or boards of commissioners
of roads and revenues in the several counties in this
State, to erect bridges across the navigable streams
that lie wholly within the State, whenever in the
judgment of such authorities the public interest may
be subserved thereby, upon their compliance with
the law of Congress requiring the approval of the
Secretary of War and Chief of Engineers of the
United States, as embodied in the statutes of the
United States, passed by the Fifty-fifth Congress
and approved the third day of March, 1899. Acts
1904, p. 100.
ARTICLE 11.
Intercounty Improvements.
§ 428. Intercounty improvements. — The au-
thority of the counties, or of any two or more coun-
ties, having in charge the establishment, construc-
tion, improvement, and maintenance of county pub-
lic works, shall be authorized and permitted, and
shall have complete authority and power, to act
jointly and co-operate in the establishment, con-
struction, improvement and maintenance of a sys-
tem of intercounty public roads traversing and
connecting the territories of the counties co-operat-
ing, and shall have full power and, authority to
jointly establish, construct, improve, and maintain
other intercounty public improvements upon such
terms and condtions, and under such direction,
control, and authority as shall be determined by the
authority of the counties so co-operating. Acts
1906, p. 103.
§ 429/ Joint chain-gang force. — Any two or
more of said counties shall be authorized and per-
mitted to jointly create from the convicts of such
counties so co-operating, who shall be sentenced for
misdemeanors or felonies, or who shall be sen-
tenced to be punished as for misdemeanors or fel-
onies, a working force or chain-gang, which work-
ing force or chain-gang so created shall be organ-
ized, governed, used, and put to labor under such
rules and regulations and by and under such author-
ity or authorities as such counties so co-operating
shall jointly determine, and such working force or
chain-gang so created, organized, and governed
shall be used, put to labor, and worked for and in
the establishment, construction, improvement, and
maintenance of a system of intercounty public
roads which shall traverse and connect the terri-
tories of the counties so co-operating, and for and
in the construction and improvement of other in-
tercounty public works.
§ 430. Public roads and improvements. — All
such intercounty public roads and highways and
other intercounty public improvements which shall
be established and made public as county public
thoroughfares are now established, created and
made public.
See §§ 629, 640.
Editor's Note. — The effect of this section is to provide that
inter-county roads, etc., shall be established and made pub-
lic according to § 629 or §§ 640 et seq. The wording of the
section is rather obscure.
§ 431. Expense prorated. — The pro rata or
proportionate expense of each of the counties so
co-operating of the entire or total expenses of the
establishment, construction, improvement, and
maintenance of such intercounty public roads, and
other intercounty public improvements, and of the
creation, organization, government, use, and main-
tenance of such working force or chain-gang, shall
be jointly determined by the authorities of the sev-
eral counties co-operating in such work, and shall
be severally levied, assessed, taxed, raised and
paid.
ARTICLE 11A.
Co-Operation of Counties with Municipalities for
Improvements.
§ 431(1). Co-Operation lawful. — It shall be
lawful for any county of this State to co-operate
as provided in this Act with any municipality
within such county in the construction, repair and
improvement of any roads, streets, street pave-
ment on any streets or roads within such munici-
pality which form part of a county or state sys-
tem of highways. Acts 1925, p. 152.
§ 431(2). City street improvement through
county funds. — The county authorities of any
county charged with the conduct of county affiairs
shall be authorized to use any county funds avail-
able for the construction and maintenance of high-
ways in such county for the payment of the costs,
in whole or in part, of the construction, repair and
improvement of any roads, streets and street pave-
ment in any municipality in such county which
forms a part of a county or state system of high-
ways. Acts 1925, p. 152.
§ 431(3). Contracts; assessments by munic-
ipality. — The county authorities of any
county shall be authorized to enter into a con-
[90]
§ 432
SYSTEM OF COUNTY DRAINAGE
§ 438
tract with any municipality of such county for the
construction and improvement of streets, street
pavements or roads within such municipality
which form a part of a county or state system of
highways, at the joint expense of such county and
municipality, with such division of the expense, and
on such terms and conditions as may be agreed on
between the county and municipality, the work, in
such case, to be clone either by the county or
municipal forces, or by a contractor employed
either by the county or municipality, or jointly by
the county and municipality, as may be agreed on
by the county and municipality. If the work is
done by the county or municipal forces, or by a
contractor employed b}^ either the county or the
municipality, the part of the cost to be paid by the
other party to the agreement ma}^ be paid over in
money to the party to the agreement doing the
work or employing the contractor. In any case
where the streets or roads of a municipality are
improved or paved under the provisions of this act,
the municipality shall have and may exercise any
power provided in its charter or ordinances or in
the general laws of the state for the assessment of
any part of the cost of the pavement or improve-
ment against abutting and adjoining property and
the owners thereof, and such assessment shall be
equally as valid and binding as if the entire work
were undertaken by the municipality alone. Where
b}r charter provisions, ordinances or the general
law of the State, the municipality is not authorized
to assess the entire cost of paving or improvement
against adjoining and abutting lands and the
owners thereof, and it is provided that a portion of
the expense shall be borne by the municipality, the
proportion of the expense agreed to be paid by the
count}' acting with the municipality under the
terms of this act may be credited by the munici-
pality to its part of the expense under the terms of
its charter, ordinances or the general law, and
assessments against abutting and adjoining prop-
erty and the owners thereof for the remainder of
the whole costs of such pavement or other im-
provement shall be legal and binding provided
that no greater proportion of the entire cost than
is provided by charter, ordinances or the general
law of the state is assessed against such abutting
or adjoining property and the owners thereof. Acts
1925, p. 152.
ARTICLE 12.
System of County Drainage.
§ 432. (§ 375.) System of drainage may be es-
tablished.— Each county is empowered, whenever
the constituted authorities thereof shall judge the
same to be proper, to establish and maintain a
system of drainage of the lowland thereof, and
for that purpose ma}^ acquire the right of way
and other easements necessary for the construc-
tion of the canals, ditches, dams, drains, trunks,
and other appurtenances incident to such a sys-
tem. The right of way may be acquired from the
landowners with their consent for the considera-
tion of the benefits conferred on them by the
drainage established. Whenever a county has al-
ready established a system of drainage, and for
that purpose acquired easements and made con-
structions of the character herein specified, the
[9
action of such county, and grants of easements
made to it, are valid. Acts 1878-9, p. 171.
Sections 432-439 were not repealed by §§ 439 (1) et seq.,
see § 439 (4).
§ 433. (§ 376.) Condemnation for drainage pur-
poses by coast counties. — Whenever the right to
construct public drains can not be acquired from
the landowner by contract or grant, it shall be
lawful for the coast counties of this State to con-
struct such drains over any lands belonging to
other persons, upon payment or tendering to the
owner thereof, or to his legally authorized agent,
just and adequate compensation for the right of
way, which compensation, when not otherwise
agreed on, shall be assessed and determined in
the manner provided in this Code for condemning
property. Acts 1893, p. 112.
For condemnation procedure, see §§ 5206 et seq.
§ 434. In certain counties. — Authority is here-
by given to any county having therein a city with
a population of not less than fifty-four thousand
nor more than seventy-five thousand inhabitants
to lay out, establish, construct, maintain, control,
regulate, re-open, repair, improve, widen, use,
protect, and discontinue a sj^stem of drainage or
any part thereof within said county and without
the corporate limits of any such city. Acts 1909,
p. 178.
§ 435. Former action confirmed. — WThatever ac-
tion may have been heretofore taken by any such
county toward the accomplishment of any of the
purposes mentioned in the preceding section is
hereby ratified and confirmed, and made valid as
completely as if the same had been made and
done under said section.
§ 436. Right of way given. — Such a county is
hereby given the right of way for all drainage
canals, public drains, or ditches now used for
public drainage or sanitary purposes, or which
may hereafter be established hereunder outside
of the corporate limits of such a city.
§ 437. County vested with management. — The
control, management, and regulation of such
drainage canals, public drains, or ditches, and of
the manner of connecting therewith are hereby
fully and completely vested in the county com-
missioners of said county.
§ 438. Landowners may be compelled to con-
nect drainage. — Such county commissioners are
required to empower and compel landowners,
whenever necessary for sanitation, to drain their
lands and to connect such drainage with the
drainage canals, public drains or ditches, and to
likewise connect drainage ditches, already on
said lands, and to keep all such drainage now ex-
isting, or which may hereafter be constructed,
open on their lands and in good order and in gen-
eral harmony with the general system of the
drainage of the county. Upon the failure of any
owner of land to comply with any order issued
by the count}' commissioners of such a county
for any of the purposes of this section for ten
days after receiving a copy of such order, such
commissioners are hereby authorized to have the
necessary work done at the expense of such
owner, and, after completion of such work, to bill
the owner with the cost thereof, and if such bill
is not paid within ten days after presentation
1]
§ 439
SYSTEM OF COUNTY DRAINAGE
§ 439(2)
thereof, they shall issue their execution for the
cost of such work against the owner of such
lands, which shall be levied upon any property of
such owner within said county, and said property
shall be advertised and sold by virtue of such
execution under the same rules and regulations
as govern other judicial sales. Any owner failing
to comply with any such order for ten days after
such notice shall also be guilty of a misdemeanor.
As to right of land owner to construct drain across an-
other's land, see § 439 (30).
For provision of Penal Code, see P. C, § 489.
§ 439. Procedure to establish system. — The pro-
cedure for laying out, establishing, widening, and
discontinuing, and for the acquisition of the
necessary rights of way for such drainage canals,
public drains, or ditches shall be the same as are
now or may hereafter be prescribed with refer-
ence to public roads, including the power of con-
demnation, which is hereby conferred, provided
nevertheless that where condemnation proceed-
ings are instituted the county authorities may
discontinue them and need not take the land
sought nor pay the amount assessed, but may dis-
continue such proceedings at any stage upon pay-
ment of the cost of the proceeding' up to the time
of such discontinuance.
As to procedure for laying out or altering public roads,
see §§ 640 et seq. As to condemnation proceedings, see §§
5206 et seq.
§ 439(1). A court in each county to establish a
system of drainage. — The Clerk of the Superior
Court, together with the Board of Commfssioners
of Roads and Revenues, or if there be no such
board, with Ordinary of any county of the State
of Georgia, shall constitute a Court to have juris-
diction, power and authority to establish a levee
or drainage district or districts in his county, and
to locate and establish levees, drains or canals,
and cause to be constructed, straightened,
widened or deepened any ditch, drain or water
course, and to build levees or embankments and
erect tide gates and pumping plants for the pur-
pose of draining and reclaiming wet, swamp or
overflowed lands; and it is hereby declared that
the drainage of swamps and the drainage of sur-
face water from agricultural lands, and the
reclamation of tidal marshes shall be considered
a public benefit and conducive to the public
health, convenience, utility and welfare. Acts
1911, p. 108.
As to jurisdiction of court to hear complaints, claims, etc.,
and to investigate proposed project, see §§ 439 (2), (4),
(5), (6). As to payment of compensation of viewers, engi-
neers, etc., at order of cou;rt, see § 439 ($7). As to removal
of officials by court, see § 439 (40). As to penalty for in-
juring drainage system established, see § 490 (1) P. C.
Constitutionality. — This and the following sections, codi-
fied from the Act of 1911, are not unconstitutional on the
ground that they restrict the political diversions of this
State to create debts; nor do they contemplate a levy of a
tax within the meaning of the Constitution. Almand v.
Pate, 143 Ga. 711, 85 S. E. 909; Goolsby v. Board of Drain-
age Commissioners, 156 Ga. 213, 119 S. E. 644. In this last
case it is held further, that the act does not violate the con-
stitutional provisions for jury trial; preventing corporations
to infringe the rights of individuals by the exercise of police
power; taking private property for public use; and finally
that it was not a delegation of the power of the General
Assembly to levy a county tax.
As to constitutionality of the parts of the act here codi-
fied as §§ 439 (19) and 439 (34), see notes to those sections.
When Drainage Contemplated — P cilice Power. — This act
contemplates the drainage of lands only in instances where
[
it is necessary to the public welfare. It is within the po-
lice power of the State to enact such a law. Almand v.
Pate, 143 Ga. 711, 85 S. E). 909; Goolsby v. Board of Drain-
age Commissioners, 156 Ga. 213, 119 S. E. 644.
Status of District as Governmental Agency. — The Act of
1911, from which this and the following sections are codi-
fied, authorizing the establishment and incorporation of
drainage districts, is referable to the police power of the
State. Such districts, when established and incorporated,
are governmental agencies, with limited powers conferred
upon them for the public benefit. Almand v. Board of
Drainage Commissioners, 147 Ga. 532, 94 S. E. 1028.
Liability for Acts of Agents. — Drainage districts may not
be held liable for the negligent acts of their officers and
agents in the discharge of a governmental function, unless
made so by statute. Almand v. Board of Drainage Com-
missioners, 147 Ga. 532, 94 S. E. 1028.
When District Liable for Property Taken. See § 439 (7)
and notes thereto.
§ 439(2). Procedure to establish a drainage dis-
trict.— Whenever a petition signed by a majority
of the resident land owners in a proposed drain-
age district, or by the owners of three-fifths of
all the land which shall be affected by or assessed
for the expense of the proposed improvements
shall be filed in the office of the Clerk of the Su-
perior Court of any county in which a part of
said lands are located setting forth that any spe-
cific body or district of land in the county and ad-
joining counties, described in such a way as to
convey an intelligent idea as to the location of
such land, is subject to overflow or too wet for
cultivation, and the public benefit, or utility, or
the public health, convenience or welfare will be
promoted by draining, ditching or leveeing the
same, or by changing or improving the natural
water courses, and setting forth therein, as far as
practicable, the starting point, route and termi-
nuses and lateral branches, if necessary, of the
proposed improvement, signed by two or more
sureties, or by some lawful and authorized surety
company, to 'be approved by the/ Clerk of the Su-
perior Court and conditioned for the payment of
all costs and expenses incurred in the proceedings
in case the Court does not grant the prayer of
said petition, said Clerk shall issue a summons to
be served on all the defendant land owners who
have not joined in the petition and whose lands
are included in proposed drainage district. Upon
the return day the said Court shall appoint a dis-
interested and competent civil and drainage engi-
neer and two resident freeholders of the county
or counties in which said lands are located as a
board of viewers to examine the lands described
in the petition and make a preliminary report
thereon. The compensation for the services of
said engineer, his assistants and freeholders shall
be paid from such funds as may be specifically
appointed for said express purpose, the same to
be refunded when the drainage fund is subse-
quently provided by the sale of bonds or other-
wise. When the lands proposed to be drained and
created into a drainage district are located in two
or more counties, the Clerk of the Superior Court,
together with the Board of Commissioners of
Roads and Revenues, or if there be no such
Board, with ordinary of either county, the Court
as hereinbefore provided, shall have and exercise
the jurisdiction herein conferred, and the venue
shall be in the county in which the petition is
filed. The law and rules regulating civil proceed-
ings shall be applicable to this Act so far as the
same may be practicable, the summons may be
served by publication as to any defendant who
92 ]
§ 439(3)
SYSTEM OF COUNTY DRAINAGE
§ 439(6)
cannot be personally served as provided by law.
Acts 1911, pp. 108, 109.
As to personnel of court herein mentioned, see § 439 (1).
As to proceeding where railroad within district or crossed
by drain, see § 439 (2b). As to amount of compensation
of viewers, engineers and helpers, see § 439 (37). As to
manner of removal of appointees, see § 439 (40). As to
compulsatory drainage, see § 438. As to preservation of
all records, see § 439 (18).
Expenses in General.— It is the theory of the drainage
act that the preliminary expense shall be provided for
by the petitioners or promoters, to be refunded by the
drainage commissioners after the district is established and
the drainage commissioners are appointed, but that the
refund, as to the compensation of any engineer employed,
shall be only such sum as the drainage commissioners shall
fix. If such »sum shall be fixed at less than the expense
already laid out for that purpose, the petitioners or pro-
moters must be losers to the extent of the difference.
Those who are thus interested in promoting the project must
assume this risk. Such liability of the drainage com-
missioners is not directly to those employed, but only to
refund to the persons advancing the fund for the prelim-
inary expense. Board of Drainage Com. v. Carey, 30 Ga.
App. 378, 118 S. E. 445.
Same — Provides Only Means of Recovery. — In such a
case there could be no recovery upon a quantum meruit,
nor under the general rule in reference to the liability of
a corporation upon the contracts previously made for its
benefit by the incorporators or promoters, for the reason
that a different manner of paying and discharging the
preliminary expense of establishing the drainage district,
of which the plaintiff's claim forms a part, is specifically
provided for in this section. See also § 439 (37). Board of
Drainage Com. v. Carey, 30 Ga. App. 378, 118 S. E. 445.
Compensation of Engineer. — Under this section it is within
the power of the drainage court to fix the compensation of
the engineer appointed by it to make the survey of the pro-
posed drainage district, provided the compensation "shall be
paid from such funds as may be specifically appointed for
said express purpose," to be advanced by the petitioners for
the establishment of the district or others promoting the
undertaking. Board of Drainage Com. v. Carey, 30 Ga.
App. 378, 118 S. E. 445. See § 439 (37) and notes of this
case thereto.
Same — Liability of Drainage Court. — An engineer appointed
by the drainage court has no right of action against the
board of drainage commissioners ultimately created. His
compensation shall be paid solely "from such funds as
may be specifically appointed for said express purpose."
The liability of the drainage commissioners is only to re-
fund the costs and expenses of the survey to those who
advanced the fund "specifically appointed for said ex-
press purpose," and are liable to refund to these only
"such compensation per diem for the services of [an
engineer] as shall be fixed and determined by the drain-
age commissioners." See § 439 (37) and note thereto.
Board of Drainage Comm. v. Carey, 30 Ga. App. 378, 118
S. E. 445.
Compensation of Assistant Engineer. — See § 439 (10), and
note thereto.
Liability for Acts of Agents. — Where property is injured
as the result of the officers or agents of a drainage dis-
trict, liability as against the drainage district does not
exist. Almond v. Board of Drainage Commissioners, 147
Ga. 532, 94 S. E. 1028, 21 Ga. App. 744, 95 S. E. 14. See
notes to § 439 (7).
Description of Land.— See note to § 439 (31).
§ 439(3). The board of viewers, reports of. — The
Board of Viewers shall proceed to examine the
land described in said petition and other land if
necessary to locate properly such improvement or
improvements as are petitioned for along the
route described in the petition, or any other route
answering the same purpose if found more prac-
ticable or feasible, and may make surveys such as
may be necessary to determine the boundaries
and elevation of the several parts of the districts,
and shall make and return to the Clerk of the Su-
perior Court within thirty days, unless the time
shall be extended by the Court, a written report
which shall set forth:
1. Whether the proposed drainage is practica-
ble or not.
[
2. Whether it will benefit the public health, or
any public highway or be conducive to the gen-
eral welfare of the community.
3. Whether the improvement proposed will
benefit the lands sought to be benefited.
4. Whether or not all the lands that are bene-
fited are included in the proposed drainage dis-
trict.
They shall also file with this report a map of
the proposed drainage district, showing the loca-
tion of the ditch or ditches or other improve-
ments to be constructed and the lands that will be
affected thereby, and such other information as
they may have collected that will tend to show
the correctness of their findings. Acts 1911, pp.
108, 110.
As to the appointment of board of viewers, see §
439 (2). As to compensation of engineers, viewers, etc., see
§ 439 (37). As to removal of viewers, engineers, etc., see
§ 439 (40). As to detailed survey and map of drains, see
§ 439 (10). As to preservation of all records, see' § 439 (18).
As to description of land, see note to § 439 (31).
Effect of Failure of Clerk to Make Entries on Records
of Maps, etc. — See note under § 439 (18).
§ 439(4). Reports, how considered — Renewal
of proceedings. — The Court aforesaid shall con-
sider this report. If the viewers report that the
drainage is not practicable, or that it will not
benefit the public health, or any public highway
or be conducive to the general welfare of the com-
munity, and the Court shall approve such find-
ings, the petition shall be dismissed at the cost of
the petitioners. Such petition or proceedings may
again be instituted by the same or additional land
owners at any time after six months upon proper
allegations that conditions have changed or that
material facts were omitted or overlooked. If the
viewers report that the drainage is practicable
and that it will benefit the public health, or any
public highway, or be conducive to the general
welfare of the community, and the Court shall so
find, then the Court shall fix a day when the re-
port will be further heard and considered. Acts
1911, pp. 108, 111.
As to how court constituted, see § 439 (1). As to pres-
ervation of all records, see § 439 (18).
§ 439(5). Notice of hearings on reports. — If the
petition is entertained by the Court, notice shall
be given by publication for two consecutive weeks
in some newspaper of general circulation within
the county or counties, if one shall be published
in such counties, and also by posting a written
or printed notice at the door of the court house
and at five conspicuous places within the drain-
age district, that on the date set, naming the day,
the Court will consider and pass upon the report
of the viewers. That non-resident land owners
shall have written notice sent them by the Clerk
of the Superior Court at least thirty days before
said hearing. At least fifteen days shall intervene
between the date of the publication and the post-
ing of the notices and the date set for the hearing.
Acts 1911, pp. 108, 112.
As to proceeding where district includes highway, or
crosses same, see § 439 (25). As to proceeding where rail-
road included or drains cross same, see § 439 (26). As to
making new parties, notice, etc., see §§ 439 (6), (39). As
to preservation of all records, see § 439 (18).
§ 439(6). Powers and duties of court. — At the
date appointed for the hearnig the Court shall
hear and determine any objection that may be of-
93 ]
§ 439(6)
SYSTEM OF COUNTY DRAINAGE
§ 439(9)
fered to the report of the viewers. Tf it appear
that there is any land within the proposed levee
or drainage district that will not be affected by-
leveeing or drainage thereof such lands shall be
excluded and the names of the owners withdrawn
from such proceeding; and if it be shown that
there is any land not within the proposed district
that will be affected by the construction of the
proposed levee or drain, the boundary of the dis-
trict shall be so changed as to include such land,
and such additional land owners shall be made
parties plaintiff or defendant, respectively, and
summons shall issue accordingly as herein pro-
vided. After such change in the boundary is
made, the insufficiency of the petition shall be
verified to determine whether or not it conforms
to the statute as provided in Section 439(2). The
efficiency of the drainage or levees may also be
determined, and if it appears that the location of
any levee or drain can be changed so as to make
it more effective, or that other branches or spurs
should be constructed, or that any branch or spur
projected may be eliminated or other changes
made that will tend to increase the benefits of the
proposed work such modification and changes
shall be made by the Board. The engineer and
the other two viewers may attend this meeting
and give any information or evidence that may
be sought to verify or substantiate their report.
If necessary the petition as amended shall be re-
ferred by the court to the engineer and two
viewers for further report. The above facts hav-
ing been determined to the satisfaction of the
Court, and boundaries of the proposed district so
determined, it shall declare the establishment of
the drainage or levee district, .which shall be
designated by a name or number, for the object
and purpose as herein set forth. Acts 1911, pp.
108, 113.
As to proceedings where district includes or drains cross,
highways, see § 439 (25). As to proceeding where district
includes, or drains cross, railroads, see § 439 (26). As to
manner of making new parties during any part of proceed-
ing, see § 439 (39). As to final hearing upon final report
as provided in § 439 (9), see § 439 (15). As to right of ap-
peal from court's decision, see § 439 (8). As to preserva-
tion of all records, see § 439 (18).
Power of Court over Lands Not Described in Petition. —
This section plainly contemplates that lands, not in the body
of lands described in the petition, may be embraced in dis-
trict as finally created by the judgment of the drainage
court, which is authorized to determine and fix the bound-
aries of the district. Board of Drainage Comm'rs v. Brown,
155 Ga. 419, 427, 117 S. E. 236.
Although a petition for the establishment of a drainage
district designates the body of lands to be embraced therein,
yet where the viewers appointed by the drainage court, to
examine and report upon the practicability and benefits of
the proposed improvement, recommend in their preliminary
report to the drainage court the inclusion in the bounda-
ries of the district of other lands than those described in
the petition for the establishment of the district, on the
ground that the inclusion of such lands in the district is
necessary to render the improvement a success, and on
the ground that such lands will be benefited by the im-
provement, the drainage court, under said drainage act,
has jurisdiction to render judgment establishing the dis-
trict with such other lands embraced therein; and their
judgment is not void for lack of such jurisdiction. Board
of Drainage Commissioners v. Brown, 155 Ga. 419, 117 S.
E. 236.
§ 439(7). Condemnation of rights-of-way. — If it
shall be necessary to acquire a right of way or an
outlet over and through lands not affected by the
drainage, and the same cannot be acquired by
donation or purchase, then and in such event the
power of eminent domain is hereby conferred,
and the same may be condemned. Such owner or
owners of the land proposed to be condemned
may be made parties defendant in the manner of
an ancillary proceeding, and the proceeding shall
be substantially as provided for the condemnation
of rights of way for railroads in Chapter nine of
the Code of 1910, so far as the same may be ap-
plicable and such damages as may be awarded as
compensation shall be paid by the Board of
Drainage Commissioners out of the first funds
which shall be available from the proceeds of sale
of bonds or otherwise. Acts 1911, pp. 108, 113.
As to proceeding where highway traversed or included
in district, § 439 (7). As to proceeding where railroad
traversed or included in proceeding, see § 439 (26). As
to proceeding to secure right of way across land of an-
other to reach drain, see § 439 (30). As to condemnation
proceeding as therein provided, see §§ 5206-5246. As to
preservation of all records, see § 439 (18).
When District Liable for Damaged Property .—If, in the
non-negligent and proper exercise of powers and perform-
ance of duties conferred and enjoined upon drainage dis-
tricts for the public benefit, injury is necessarily inflicted
upon private property which amounts to the taking or
damaging of such property, within the meaning of the
constitution of this State, the owners thereof are entitled
to just and adequate compensation, and the drainage dis-
tricts as such may be held liable. Almand v. Board of
Drainage Commissioners, 147 Ga. 532, 94 S. 1$. 1028.
Not Liable in Common Law Action. — x\ drainage district
laid out, established, and incorporated under the Act of
1911, from which this section is codified, is not liable in a
common-law action to one owning land within the district,
for the value of his land taken, or for inconvenience im-
posed thereon by the construction of improvements after
they have been completed. Almand v. Board of Drainage
Comm'rs, 21 Ga. App. 744, 746, 147 Ga. 532, 94 S. E-
1028, 95 S. E- 14. As to finality of decision, see 'the sec-
tion immediately following and note thereto.
§ 439(8). Appeals. — Any person or corporation
owning lands within the drainage or levee district
which he or it thinks will not be benefited by the
improvement and should not be included in the
district may appeal from the decision of the
Court to the Superior Court of such county by
filing an appeal, accompanied by a bond condi-
tioned for the payment of the costs, if the appeal
should be decided against him, for such sum as
the Court may require, not exceeding two hun-
dred dollars, signed by two or more solvent
sureties, or in some approved surety company, to
be approved by the Court. Acts 1911, pp. 108, 114.
As to right of appeal from final report and hearing under
§§ 439 (9)- (16), see § 439 (17). As to right of appeal and
waiver of right generally, see § 439 (39). As to preservation
of all records, see § 439 (18). See notes to §§ 439 (12) and
439 (33).
Nature of Appeal. — The Act of 1911 provides for an appeal
to the superior court. An appeal is a de novo investiga-
tion, and in the superior court the appellant would not be
deprived of the right of a trial by a jury if questions of fact
are involved. Goolsby v. Board of Drainage Commission-
ers, 156 Ga. 213, 119 S. E. 644.
Act Provides Exclusive Remedy. — Where the provisions
of the act have been strictly complied with, and where the
landowner has been served and made a party to the proceed-
ing to establish such district, and has failed to appeal, as
provided by the act, from the report of the engineer and
viewers finding that his lands will not be damaged by the
construction of the improvements, the remedy provided in
the act is exclusive. Almand v. Board of Drainage Com-
missioners, 147 Ga. 532, 94 S. E. 1028.
Questions Determined by Jury. — See Knox v. Crump, 15
Ga. App. 697, 84 S. E. 169.
§ 439(9). Survey, plans and specifications — Re-
port.— After the district is established, the Court
shall refer the report of the engineer and viewers
back to them to make a complete survey, plans and
specifications for the drains, or levees, or other
improvements, and fix a time when said engineer
[94]
§ 439(10)
SYSTEM OF COUNTY DRAINAGE
§ 439(13)
and viewers shall complete and file their report,
not exceeding sixty days. Acts 1911, pp. 108, 114.
As to first report of viewers and proceedings thereon, see
§§ 439 (3) -439 (7). As to appeal from final report of view-
ers, see § 439 (17). As to extension of time for report, see
§ 439 (13). As to preservation of all records, see § 439 (18).
§ 439(10). Surveys how made. — The engineer
and viewers shall have power to employ such as-
sistants as may be necessary to make a complete
survey of the drainage district, and shall enter
upon the ground and make a survey of the main
drain and all its laterals. The line of each ditch,
drain or levee shall be plainly and substantially
marked on the ground. The course and distance
of each ditch shall be carefully noted and suffi-
cient notes made, so that it may be accurately
plotted and mapped. A line of levees shall be run
for the entire work and sufficient data secured
from which accurate profiles and plans may be
made. Frequent bench marks shall be established
along the line, on permanent objects, and their
elevation recorded in the field books. If it is
deemed expedient by the engineer and viewers
other levees may be run to determine the fall
from one part of the district to another. If an
old water course, ditch or channel is being
widened, deepened, or straightened it shall be ac-
curately cross sectioned so as to complete the
amount of cubic 3'ards saved by the use of such
old channel. A drainage map of the district shall
then be completed, showing the location of the
ditch or ditches and other improvements and the
boundary as closely as may be determined by the
records of the lands owned by each individual
land owner within the district. The location of
any railroad or public highways and the boundary
of any incorporated towns or villages within the
district shalPbe shown on the map. There shall
also be prepared to accompany this map a profile
of each levee, drain or water course showing the
surface of the ground, the bottom or grade of the
proposed improvement and the number of cubic
yards of excavation or fill in each mile or fraction
thereof, and the total yards in the proposed im-
provement and the estimated cost thereof, and
plans and specifications, and the cost of any other
work required to be done. Acts 1911, pp. 108, 114.
As to preliminary investigation and survey by viewers, see
§ 439 (3). As to assessment for costs, see §§ 439 (31)-36).
As to preservation of all records, see § 439 (18).
Liability of Corporation for Compensation of Assistant
Engineer. — This section, in providing that the engineer and
the viewers shall have the power to employ such assistants
as may be necessary to make a complete survey of the
drainage district, does not, in view of §§ 439 (2), (16), and
(37), confer any power to bind the corporation thereafter
to be created to pay an assistant engineer so employed.
The drainage court should see that a fund is provided by
the petitioners or promoters for the "express purposes" of
meeting such expense before or as the expense is incurred.
See § 439 (13). Board of Drainage Com. v. Carey, 30 Ga.
App. 378, 118 S. E. 445.
§ 439(11). Damages how assessed. — It shall be
the further duty of the engineer and viewers to
assess the damages claimed by any one that is
justly right and due to them for land taken or for
inconvenience imposed because of the construction
of the improvement, or for any other legal dam-
ages sustained. Such damage shall be considered
separate and apart from any benefit the land
would receive because of the proposed work, and
shall be paid by the Board of Drainage Commis-
[
sioners when funds shall come into their hands.
Acts 1911, pp. 108, 115.
As to condemnation of right of way, see § 439 (7). As
to appeal and waiver from proceedings, see §§ 439 (17), (39).
As to preservation of all records, see § 439 (18).
§ 439(12). Benefits how estimated.— It shall be
the duty of the engineer and viewers to person-
ally examine the land in the district and classify
it with reference to the benefits it will receive
from the construction of the levee, ditch or water
course or other improvement. In case of drain-
age, the degree of wetness of the land, its prox-
imity to the ditch or a natural outlet and the
fertility of the soil shall be considered in deter-
mining the amount of benefit it will receive by
the construction of the ditch. The land bene-
fited shall be separated in five classes. The land
receiving the highest benefit shall be marked
"Class A," that receiving the next highest benefit
"Class B," that receiving the next highest benefit
"Class C," that receiving the next highest bene-
fit "Class D," and that receiving the smallest
benefit "Class E." The holdings of any one land
owner need not necessarily be all in one class,
but the number of acres in each class shall be
ascertained, though its boundary need not be
marked on the ground or shown on the map. The
total number of acres owned by one person in
each class, and the total number of acres bene-
fited shall be determined. The total number of
acres of each class in the entire district shall be
obtained and presented in tabulated form. The
scale of assessment upon the several classes of
land returned by the engineer and viewers shall
be in the ratio of five, four, three, two and one;
that is to say, as often as five mills per acre is
assessed against the land in "Class A," four mills
per acre shall be assessed against the land in
"Class B," three mills per acre in "Class C,"
two mills per acre in "Class D," and one mill per
acre in "Class E." This shall form the basis of
the assessment of benefits to the lands for drain-
age purposes. Acts 1911, pp. 108, 116.
As to estimation of benefit to highway, see § 439 (25);
of railroads, see § 439 (26). As to raising funds for main-
tenance and repairs, see § 439 (29). As to assessment of
cost according to this schedule, see § 439 (31); reassess-
ment, see § 439 (35). As to preservation of all records, see
§ 439 (18).
What Land Benefited. — The court did not err in declin-
ing to give the requested charge which would have ex-
cluded all land not actually wet or subject to overflow, not-
withstanding some benefit would result to it since, under
this section it is not necessary that the land to be bene-
fited shall itself be wet or swamp land, or subject to over-
flow; it need only be benefited to some degree by the con-
struction of the proposed ditch or ditches. Crump v. Knox,
18 Ga. App. 437, 89 S. E. 586.
Benefit of Health.- — It was not error to submit to the jury
the question of the benefit to health which might result
from the execution of the drainage plan as affecting lands
in "Class E." Crump v. Knox, 18 Ga. App. 437, 89 S. E.
586.
Evidence of Benefit. — For case showing benefit of land
so as to include it in the district, in an appeal under §
439 (8), see Abercrombie v. Henry Co. Drainage Dist., 25
Ga. App. 309, 103 S. E. 197.
Judgment Conclusive. — After the judgment establishing a
drainage district has been rendered, it is too late for the
plaintiff to show that his lands therein embraced have not
been benefited by the improvement. Board of Drainage
Comm'rs v. Brown, 155 Ga. 419 (5) (117 S. E. 236). Goolsby
v. Board of Drainage Commissioners, 156 Ga. 213, 119 S.
E- 644.
§ 439(13). Cost of surveys. — The engineer and
viewers shall keep an accurate account and re-
port to the Court the name and number of days
95
§ 439(14)
SYSTEM OF COUNTY DRAINAGE
§ 439(19)
each person was employed on the survey, and
the kind of work he was doing and any expenses
that may have been incurred in going to and
from the work, and the cost of any supplies or
material that may have been used in making the
survey. Acts 1911, pp. 108, 117.
As to compensation and pay for expenses, see § 439 (37).
As to preservation of all records, see § 439 (18).
§ 439(14). Extension of time for reports. — In
case the work is delayed by high water, sickness
or any other good cause, and the report is not
completed at the time fixed by the court, the engi-
neer and viewers shall appear before the Court and
state in writing the cause of such failure, and
ask for sufficient time in which to complete the
work, and the Court shall set another date by
which the report shall be completed and filed.
Acts 1911, pp. 108, 117.
As to time fixed for report, see § 439 (9). As to preser-
vation of all records, see § 439 (18).
§ 439(15). Final reports — Final hearing. —
When the final report is completed and filed it
shall be examined by the Court, and if it is found
to be in due form and in accordance with the
law, it shall be accepted, and if not in due form
it may be referred back to the engineer and
viewers, with instructions to secure further in-
formation to be reported at a subsequent date to
be fixed by the Court. When the report is fully
completed and accepted by the Court a date, not
less than twenty days thereafter, shall be fixed
by the Court for the final hearing upon the re-
port, and notice thereof shall be given by pub-
lication in a newspaper of general circulation in
the county and by posting a written or printed
notice on the door of the court house and at five
conspicuous places throughout the district, such
publication to be made for at least two weeks be-
fore the final hearing. During this time a copy
of the report shall be on file in the office of the
Clerk of the Superior Court and shall be open
to the inspection of any land owner or other per-
son interested within the district. Acts 1911, pp.
108, 117.
As to preliminary report by viewers and hearing thereon,
see §§ 439 (3) -(6). As to preservation of all records, see
§ 439 (18).
Making Parties after Final Hearing. — See note under §
439 (34) from the case of Comm. v. Wright, 155 Ga. 436.
§ 439(16). Objections to report and judgment
of court. — At the date set for the hearing any
land owner may appear in person or by counsel,
and file his objection in writing to the report of
the viewers; and it shall be the duty of the Court
to carefully review the report of the viewers and
the objection filed thereto, and make such changes
as are necessary to render substantial and equal
justice to all the land owners in the district. If
in the opinion of the Court the cost of construc-
tion, together with the amount of damages as-
sessed is not greater than the benefits that will
accrue to the land affected, the Court shall con-
firm the report of the viewers. If, however, the
Court finds that the cost of construction, to-
gether with the damages assessed, is greater than
the resulting benefit that will accrue to the lands
affected, the Court shall dismiss the proceedings
at the cost of the petitioners, and the sureties
upon the bond so filed by them shall be liable
for such costs. The Court may from time to
time collect from petitioners such amounts as
may be necessary to pay costs accruing, other
than costs of the engineer, his assistants and
freeholders, such amounts to be repaid from the
special tax herein authorized. Acts 1911, pp. 108,
118.
As to right of appeal from definition of boundaries of
district, see §§ 439 (5), (6). As to objections by railroad
companies, see § 439 (27); objections on party of county
where highway affected, see § 439 (25). As to right of ob-
jection generally, see § 439 (39). As to preservation of all
records, see § 439 (18).
§ 439(17). Appeals. — Any party aggrieved may,
within ten days after the confirmation of the as-
sessors, report appeal to the Superior Court.
Such appeal shall be taken and prosecuted as
now provided in civil proceedings. Provided,
that the right of appeal shall obtain in all cases
of dispute as now provided by law, and in ac-
cordance with this Act. Acts 1911, pp. 108, 118.
As to right of appeal from preliminary hearing defining
boundaries, see § 439 (8). As to right of appeal on part
of highway or railroad, see §§ 439 (25), (27). As to right of
appeal generally, see § 439 (39). As to preservation of all
records, see § 539 (18).
§ 439(18). Drainage Record.— The Clerk of the
Superior Court shall provide a suitable book, to
be known as the "Drainage Record," in which he
shall transcribe every petition, motion, order, re-
port, judgment or finding of the Board in every
drainage transaction that may come before it, in
such a manner as to make a complete and con-
tinuous record of the case. Copies of all maps
and profiles are to be furnished by the engineer
and marked by the Clerk "official copies," which
shall be kept on file by him in his office, and one
other copy shall be pasted or otherwise attached
to his record book. Acts 1911, pp. 108, 119.
Effect of Failure of Clerk to Make Entries. — Where the
maps required to be filed with the reports of the board of
viewers, under this section, were actually deposited with
the clerk of the superior court, his failure to make thereon
entries of filing, and to mark thereon office copies, and to
paste on or attach to his record book copies, will not ren-
der void the judgment of the drainage court. Such failure
subjects the clerk to fine (Civil Code, § 4894), but his in-
attention to this duty does not render invalid the judg-
ment of the drainage court creating the district. Cribb v.
State, 118 Ga. 316, 318, 45 S. E. 396; Board of Drainage
Commissioners v. Brown, 155 Ga. 419, 117 S. E\ 236.
§ 439(19). Board of Drainage Commissioners.
— After the said drainage district shall have been
declared established, as aforesaid, and the survey
and plan therefor approved, the Court shall ap-
point three persons who shall be designated as
the "Board of Drainage Commissioners." Such
Drainage Commissioners shall first be elected by
the owners of the land within the drainage or
levee district, or a majority of same, in such
manner as the Court shall prescribe. The Court
shall appoint those receiving a majority of the
votes. If any one or more of such proposed
Commissioners shall not receive the vote of a
majority of such land owners the Court shall ap-
point all, or the remainder from among those
voted for in the election. Any vacancy thereafter
occurring shall be filled in like manner. Such
three Drainage Commissioners, when so ap-
pointed, shall be immediately created a body
corporate under the name and style of "The
Board of Drainage Commissioners of Dis-
trict," with the right to hold property and con-
vey the same, to sue and be sued, and shall pos-
sess such other powers as usually pertain to cor-
[96]
§ 439(19)
SYSTEM OF COUNTY DRAINAGE
§ 439(21)
porations. They shall organize by electing from
among their number a chairman and a vice-chair-
man. They shall also elect a secretary, either
within or without their body. The Treasurer of
the county in which the proceeding was instituted
shall be ex-officio Treasurer of such Drainage
Commissioners. Provided, however, that such
Board of Drainage Commissioners shall have the
right, in its discretion, to select and designate
any banking or trust company in this State to act
as Treasurer or Custodian of Funds derived by
such Board from the sale of bonds issued by such
drainage district, for other monies collected for
maintenance and construction, and for collections
made by sheriff and tax collector. Such Board
of Drainage Commissioners shall adopt a seal,
which they may alter at pleasure. The Board of
Drainage Commissioners shall have and possess
such powers as are herein granted. The name
of such drainage district, whether designated by
number or otherwise, shall constitute a part of
its corporate name; for illustration, "The Board
of Drainage Commissioners of (No. 1 or Oke-
fenokee) District." Acts 1911, pp. 108, 119. 1921,
pp. 185, 186.
As to duty of board to maintain drainage and repair sys-
tem, see § 439 (29). As to appointment of drainage su-
perintendent, see § 439 (20). As to letting of construction
contracts, see § 439 (21). As to duty of board concerning
payment of contractors, see § 439 (22). As to duty of board
to bring suit against contractor for breach, see § 439 (23).
As to duty of board when drains cross public highway, see
§ 439 (25). As to duty of board when drains cross railroad,
see §§ 439 (26), (28). As to control of private drains con-
nected with system, see § 439 (30). As to duty of board
to assess cost of drainage, see §§ 439 (31), (32); issuing
bonds for drainage, § 439 (34); fixing rate of interest, §
439 (42); re-assessment, § 439 (35); additional assessment,
§ 439 (36). As to duty of board in compensating engineers,
viewers, etc., see § 439 (37). As to power of board to bor-
row money, see § 439 (43). As to preservation of records,
see § 439 (18). As to cooperation with U. S. officials, see
§ 439 (38). As to the duties of the treasury, see §§ 439 (22),
<32), (33), (34), (37).
Constitutionality. — The portion of this section that pro-
vides that "the treasurer of the county in which the pro-
ceeding was instituted shall be ex-officio treasurer of such
drainage commissioners," is not unconstitutional because
the law referred to more than one subject matter, or be-
cause it contained matter different from its title; nor is the
section in violation of § 6600 which provides for uniform
tribunals for the regulation of county matters. McFarlin
v. Board of Drainage Commissioners, 153 Ga. 766, 113 S. E-
477. See notes of the case under § 439 (47).
This section is not void on the ground that it attempts
to impose on the county treasurer duties which extend be-
yond the territorial limits in which he is elected to serve
as such treasurer. McFarlin v. Board of Drainage Com-
missioners, 153 Ga. 766, 113 S. E. 447.
§ 439(20). Superintendent of construction. —
The Board of Drainage Commissioners shall ap-
point a competent person as superintendent of
construction. Such person shall furnish a bend,
to be approved by the Commissioners, in the
penal sum of ten thousand dollars, conditioned
upon the honest and faithful performance of his
duties, such bond to be in favor of the Board of
Drainage Commissioners. Acts 1911, pp. 108,
120.
As to duty of superintendent regarding letting of con-
tracts, see § 439 (21). As to duty of superintendent to
make estimates of progress of work and payment there-
for, see § 439 (22). As to duty of superintendent concern-
ing execution of work on railroad right of ways, see §
439 (28). As to compensation, see § 439 (37). As to re-
moval of superintendent, see § 439 (40). As to preserva-
tion of records, see § 439 (18).
§ 439(21). Work of construction, how let.— The
Ga. Code— t [ 9
Board of Drainage Commissioners shall cause no-
tice to be given for two consecutive weeks in
some newspaper published in the county where-
in such improvement is located, if such there be,
and such additional publication elsewhere as they
may deem expedient, of the time and place of
letting the work of construction of said improve-
ment, and in such notice they shall specify the
approximate amount of work to be done and the
time fixed for the completion thereof; and in the
date appointed for the letting, they, together with
the superintendent of construction, shall convene
and let to the lowest responsible bidder, either as
a whole or in sections, as they may deem most
advantageous for the district, the proposed work.
No bid shall be entertained that exceeds the esti-
mated costs except for good and satisfactory rea-
sons it shall be shown that the original estimate
was erroneous. They shall have the right to re-
ject all bids and advertise again the work, if in
their judgment the interest of the district will ,be
subserved by doing so. The successful bidder
shall be required to enter into a contract with the
Board of Drainage Commissioners and to execute
a bond for the faithful performance of such con-
tract, with sufficient sureties, in favor of the
Board of Drainage Commissioners for the use
and benefit of the levee or drainage district, in an
amount equal to twenty-five per centum of the
estimated cost of the work awarded him. Acts
1911, pp. 108, 120.
As to estimate of and payment for work as it advances,
see § 439 (22). As to suit against contractor for breach
of contract, see § 439 (23). As to preservation of records,
see § 439 (18).
In General. — Bidders make their bids based upon the
complete survey, plans, and specifications called for by
the above provision of the act. Bids thus made are to be
accepted or rejected by the commissioners and the su-
perintendent of construction. After the commissioners ad-
vertise for such bids and bids are made, the commission-
ers can not reject all bids and materially alter the terms
of a bid, and, after making such alteration, enter into a
contract with one of the bidders for the construction of
the proposed improvement. The commissioners can not
make changes in the plans and specifications of the pro-
posed project which in substantial respects vary its char-
acter and materially affect its cost; and they can not,
without further advertising, lawfully accept new proposals
for such construction and award a contract therefor.
Board of Drainage Com. v. Karr, 157 Ga. 284, 296, 121
S. E- 298.
Tentative Contract. — An instrument executed by the drain-
age board and bidders expressly declaring that it is only
a tentative contract and that a contract in proper and le-
gal form and more in detail is to be executed after changes
in the work have been made by the engineer of the drain-
age district, and a legal order has been obtained from the
court authorizing the same, such instrument does not amount
to a complete, final, and binding agreement. Board of
Drainage Com. v. Karr & Moore, 157 Ga. 284, 121 S. E-
298.
Same — Bidders Depositing Check Payable in Event Bond
Not Given. — Where bidders for the work of draining lands
in a drainage district accompanied their bid with a cer-
tified check which was payable to the drainage board and
which was not to be cashed unless the bidders failed to
give bond in the event the contract was awarded to them,
the drainage commissioners were not authorized to col-
lect said check and appropriate the proceeds to the use
and benefit of the drainage district, unless the board ac-
cepted the competitive bid of the makers of the check,
and the bidders refused to execute a contract in accord-
ance with the terms of their bid, or, after executing such
contract, failed to give bond for its faithful performance.
Board of Drainage Commissioners v. Karr & Moore, 157
Ga. 284, 121 S. E. 298.
Failure of the plaintiffs to give bond for the faithful
execution of an incomplete contract did not work a for-
feiture of said check, so given to the drainage board to
insure the giving of a bond by them for the faithful per-
formance of their contract awarded to them for the drain-
§ 439(22)
SYSTEM OF COUNTY DRAINAGE
§ 439(26)
ing of the lands in the district. Board of Drainage Com.
v. Karr & Moore, 157 Ga. 284, 121 S. E. 298.
§ 439(22). Estimates of and payments for work.
— The superintendent in charge of construction
shall make monthly estimates of the amount of
work done, and furnish one copy to the con-
tractor and file the other with the Secretary of
the Board of Drainage Commissioners against
such contractor, and his bond five days after the
filing of such estimate, meet and direct the secre-
tary to draw a warrant in favor of such contractor
for ninety per centum of the work done, accord-
ing to specifications and contract; and upon the
presentation of such warrant properly signed by
the chairman and the secretary, to the treasurer
of the drainage fund, he shall pay the amount
due thereon. When the work is fully completed
and accepted by the superintendent he shall make
an estimate for the whole amount due, including
the amounts withheld on the previous monthly
estimates, which shall be paid from the drainage
funds as before provided. Acts 1911, pp. 108, 121.
As to creation of board of drainage commissioners, see
§ 439 (19). As to suit against contractor, see § 439 (23).
As to raising of funds for construction, see §§ 439 (31) -(36).
As to preservation of records, see § 439 (18). As to right
of contractors to enter lands, see § 439 (21).
Editor's Note. — This section is ambiguous. Apparently
the superintendent is to "meet and direct the secretary to
draw a warrant." However the probable meaning intended
is that the board shall do the meeting and directing, etc.
The duties of the superintendent are very likely limited to
the making and filing of the estimates as provided.
§ 439(23). Suits against contractors. — If any
contractor, to whom a portion of said work shall
have been let, shall fail to perform the same ac-
cording to the terms specified in his contract, ac-
tion may be had in behalf of the Board of Drain-
age Commissioners against such contractor and
his bond in the Superior Court for damages sus-
tained by the levee or drainage district, and re-
covery made against such contractor and his sure-
ties. In such an event the work shall be adver-
tised and re-let in the same manner as the origi-
nal letting. Acts 1911, pp. 108, 122.
As to the creation of the board, see § 439 (19). As to let-
ting contracts, see § 439 (21). As to the preservation of
all records, see § 439 (18). As to right of contractor to
enter lands, see § 439 (24).
§ 439(24). Work how executed. — In the con-
struction of the work the contractor shall have
the right to enter upon the lands necessary for
this purpose, and the right to remove private or
public bridges or fences and to cross private land
in going to or from the work. In case the right
of way of the improvement is through timber the
owner thereof shall have the right to remove it,
if he so desires, before the work of construction
begins, and in case it is not removed by the land
owner it shall become the property of the con-
tractor, and may be removed by him. Acts 1911,
pp. 108, 122.
As to letting contracts, see § 439 (21).
§ 439(25). Crossings of public highways. —
Where any public ditch, drain or water course es-
tablished under the provisions of this Act crosses
a public highway, the actual costs of constructing
the same across the highway or removing old
bridges or building new ones shall be paid for
from the fund of the drainage district. When-
ever any highway within the levee or drainage
district shall be beneficially affected by the con-
[ 98
struction of any improvement or improvements in-
such district it shall be the duty of the viewers
appointed to classify the land to give in their
report the amount of benefit to such highway,
and notice shall be given by the Clerk of the
Superior Court to the Board of Commissioners of
Roads and Revenues, or if there be no such
Board, to the Ordinary of the county where the
road is located of the amount of such assess-
ment, who shall have the right to appear before
the Court and file objections, the same as any
land owner. Acts 1911, pp. 108, 122.
As to notice of hearing of first report of viewers, see
§ 439 (5). As to hearing and laying off district under such
report, see § 439 (6). As to assessment of damages, see §
439 (11). As to estimation of benefits, see § 439 (12). As
to condemnation of right of way, see § 439 (7). As to ap-
peals, see §§ 439 (8), (17), (39). As to final hearing, see
§ 439 (14). As to becoming party to any proceedings, see
§ 439 (39). As to preservation of records, see § 439 (18).
As to payment of costs for bridges under amendment to
act, see § 439 (48).
§ 439(26). Railroad crossings. — Whenever the
engineer and the viewers in charge shall make a
survey for the purpose of locating a public levee
or drainage district or changing a natural water
course, and the same would cross the right of
way of any railroad company, it shall be the duty
of the owner in charge of the work to notify the
railroad company, by serving written notice upon
the agent of such company or its lessee or re-
ceiver, that they will meet the company at the
place where the proposed ditch, drain or water
course crosses the right of way of such company,
said notice fixing the time of such meeting, which
shall not be less than ten days after the service
of same, for the purpose of conferring with said
company with relation to the place where and
the manner in which such improvement shall
cross such right of way. When the time shall
arrive fixed for such conference, unless for good
cause more time is agreed upon, it shall be the
duty of the viewers in charge and the railroad
company to agree, if possible, upon the place
where and the manner and method in which such
improvement shall cross such right of way. If
the viewers and the railroad company can not
agree, or if the railroad company shall fail, neg-
lect or refuse to confer with the viewers, they
shall determine the place and manner of cross-
ing the right of way of said railroad company,
and shall specify the number and size of open-
ings required, and the damages, if any, to said
railroad company, and so specify in their report.
The fact that the railroad compaii)^ is required by
the construction of the improvement to build a
new bridge or culvert or to enlarge or strengthen
an old one shall not be considered as damages
to said railroad company. The engineer and
viewers shall also assess the benefits that will ac-
crue to the right of way, road bed and other
property of said company by affording better
drainage or a better outlet for drainage, but no
benefits shall be assessed because of the increase
in business that may come to said railroad because
of the construction of the improvement. The
benefits shall be assessed at a fixed sum, deter-
mined solely by the physical benefit that its
property will receive by the construction of said
improvement, and it shall be reported by the
viewers as a special assessment, due personally
from the railroad compan}^ as a special assess-
]
§ 439(27)
SYSTEM OF COUNTY DRAIN AG K
§ 439(30)
ment; it may be collected in the manner of an
ordinary debt in any Court having jurisdiction.
Acts 1911, pp. 108, 123.
As to notice of first report of viewers, see § 439 (5).
As to powers and duties of courts in laying of district,
see § 439 (6). As to appeals from decision of court, see
§ 439 (8), (17), (39). As to manner of assessing damages
generally, see § 439 (11); assessing benefits, § 439 (12).
As to preservation of all records, see § 439 (18).
Editor's Note. — The constitutionality of the provisions of
this section and § 439 (28) relating to the requirement of
railroads to build or reconstruct bridges, etc., without the
same being considered as damages to the railroads might
well be questioned as lacking due process and adequate
compensation. However § 439 (48), relating to the costs of
building all new bridges under act being borne by county
should be consulted.
§ 439(27). Objections by Railroads.— The Clerk
of the Superior Court shall have notice served
upon the railroad company of the time and place
of meeting to hear and determine the final re-
port of the engineer and viewers, and the said
railroad company shall have the right to file ob-
jections to said report and to appeal from the
findings of the Board of Commissioners in the
same manner as any land owner. But such an
appeal shall not delay or defeat the construction
of the improvement. Acts 1911, pp. 108, 124.
As to appeals generally, see § 439 (8), (17), (39). As to
final hearing and notice thereof, see § 439 (15). As to pres-
ervation of records, see § 439 (18).
§ 439(28). Execution of work on railroad rights-
of-way. — After the contract is iet and the actual
construction is commenced, if the work is being
done with a floating dredge, the superintendent in
charge of construction shall notify the railroad
company of the probable time at which the con-
tractor will be ready to enter upon the right of
way of said road and construct the work there-
on. It shall be the duty of said railroad to send
a representative to view the ground with the
superintendent of construction and arrange the
exact time at which such work can be most con-
veniently done. At the time agreed upon the said
railroad company shall remove its rails, ties,
stringers and such other obstructions as may be
necessary to permit the dredge to excavate the
channel across its right of way. The work shall
be so planned and conducted as to interfere in
the least possible manner with the business of
said railroad. In case the railroad company re-
fuses and fails to remove its track and allow the
dredge to construct the work, on its right of way,
it shall be held as delaying the construction of
the improvement, and such company shall be
liable to a penalty of twenty-five dollars per day
for each day of delay, to be collected by the Board
of Drainage Commissioners for the benefit of the
drainage district as in the case of other penalties.
Such a fine may be collected in any Court having
jurisdiction and shall inure to the benefit of the
drainage district. Within thirty days after the
work is completed an itemized bill for the actual
expenses incurred by the railroad company for
opening its tracks shall be made and presented to
the superintendent of construction of the drainage
improvement. Such bill, however, shall not in-
clude the cost of putting in a new bridge or
strengthening or enlarging an old one. The super-
intendent of construction shall audit this bill and,
this bill the cost of the excavation done by the
dredge on the right of way of said railroad com-
pany at the contract price, and pay the difference,
if any, to said railroad company. Provided, that
said railroad company shall have the right to make
the necessary excavation across its right of way
as required in said Section. Acts L911, pp. 108,
124.
As to constitutionality of provision relating to consider-
ing as cost the construction of new bridges, etc., by rail-
road company, see editor's note under § 439 (26). As to
duties of commissioners generally, see note under § 439 (19);
duties of superintendent, § 439 (20). As to preservation of
records, see § 439 (18).
§ 439(29). Maintenance of drainage established.
— Whenever any improvement constructed under
this Act is completed, it shall be under the con-
trol and supervision of the Board of Drainage
Commissioners. It shall be the duty of the said
Board to keep the levee, ditch, drain or water
course in good repair, and for this purpose they
may levy an assessment on the lands benefited by
the construction of said improvement in the same
manner and in the same proportion as the original
assessments were made, and the fund that is col-
lected shall be used for repairing and maintain-
ing the ditch, drain or water course in perfect
order; provided, however, that if any repairs are
made necessary by the act or negligence of the
owner of any land through which such improve-
ment is constructed or by the act or negligence
of his agent or employee, or if the same is caused
by the cattle, hogs or other stock of said owner,
employee or agent, then the cost thereof shall be
assessed and levied against the lands of said
owner above, to be collected b)r proper suit in-
stituted by the Drainage Commissioners. It shall
be unlawful for any person to injure or damage
or obstruct or build any bridge, fence or flood gate
in such a way as to injure or damage any levee,
ditch, drain or water course constructed or im-
proved under the provisions of this Act, and any
person causing such injury shall be guilty of a
misdemeanor, and upon conviction thereof may
be fined in any sum not exceeding twice the dam-
age or injury done or caused. Acts 1911, pp. 108,
125.
As to construction of drainage system, see §§ 439 (21) -(28).
As to how damages assessed, see § 439 (11); benefits and
classification thereof, § 439 (12). As to original assess-
ment of costs, see §§ 439 (31) - (36). As to preservation of
records, see § 439 (18).
Requisites. — It is not essential, under the provisions of
this section, that all those steps should be taken, which are
essential before the establishment and completion of the
improvements. Stovall v. Broad River Drainage Dist., 155
Ga. 167, 116 S. E. 602.
Preliminary Survey and Report Not Necessary.- -There-
fore it is competent for the board of drainage commission-
ers, to levy an assessment on the lands for the purpose
of maintaining the drainage, without a preliminary sur-
vey and report of the viewers, or the action of the drain-
age court. Stovall v. Broad River Drainage Dist., 155 Ga.
167, 116 S. E. 602.
§ 439(30). Rights of land owners. — The owner
of any land that has been assessed for the costs
of the construction of any ditch, drain or water
course, as herein provided, shall have the right to
use the ditch, drain or water course as an outlet
for lateral drains from said land; and if said land
is separated from the ditch, drain or water course
if found correct, approve the same and file with Lby the land of another or others, and the owner
the secretary of the Board of Drainage Commis-
sioners. The Commissioners shall deduct from
thereof shall be unable to agree with said other
or others as to the terms and conditions on which
[ 09 ]
§ 439(31)
SYSTEM OF COUNTY DRAINAGE
§ 439(33)
he may enter their lands and construct said drain
or ditch, he may file his ancillary petition in such
pending proceeding to the court and the pro-
cedure shall be as now provided by the law.
When the ditch is constructed it shall become a
part of the drainage system and shall be under
the control of the Board of Drainage Commis-
sioners and be kept in repair by them as herein
provided. Acts 1911, pp. 108, 126.
As to condemnation of right of way, see § 439 (7); assess-
ment of damages, see § 439 (11); literal construction of
act, procedure, appeal and waiver, see § 439 (39). As to
preservation of records, see § 439 (18). As to forcing land-
owner to drain land, see § 438.
§ 439(31). Assessments for cost of drainage.- —
After the classification of the land and the ratio
of assessment of the different classes to be made
thereon has been confirmed by the court, the
Drainage Commissioners shall prepare an assess-
ment roll or drainage tax duplicate, giving a de-
scription of all the land in said drainage district,
the name of the owner, so far as can be ascer-
1 from the public records, and the amount of
asj isment, against each of the several tracts of
In preparing this assessment roll the Board
ascertain the total costs of the improvement,
including the damages awarded and to be paid to
the >wners of land, and all incidental expenses,
deduct therefrom any special assessment
against any railroad or highway, and the
nder shall be the amount to be borne and
puiu by the lands benefited. This amount shall be
assessed against the several tracts of land accord-
ing to the benefit received, as shown by the classi-
fication and the ratio of assessment made by the
viewers and confirmed by the Board of Drainage
Commissioners. This drainage tax roll shall be
made in duplicate, signed by the chairman and
secretary, and one copy filed with the drainage
record and the other delivered to the Sheriff or
other county Tax Collector. There shall be ap-
pended an order to collect the said assessments,
and the same shall have the force and effect of a
judgment as in the case of State and county taxes.
For the purpose of meeting any possible deficit in
the collection of the annual drainage assessments,
that there shall be levied and assessed during each
year when either interest or principal on bonds
shall be due, such an assessment as will yield
five per cent more than the total of principal and
interest due in such year; that is to say, that for
every one hundred dollars of principal and inter-
est, or either, due in any one year, there j shall be
levied and assessed a sufficient drainage tax to
yield one hundred and five dollars for such year.
When this excess of, drainage tax so levied and
collected shall accumulate so that the aggregate
surplus in the hands of the treasurer shall amount
to more than ten per cent of the total bonds of
the district, outstanding and unpaid, then such
surplus above ten per cent thereof may be avail-
able by the Board of Drainage Commissioners for
expenditure in the maintenance and upkeep in
the work of such district. Any part of this fund
remaining on hand when the final installment of
bonds and interest is due, shall be applied to-
ward the payment of same, and the final assess-
ment shall be proportionately reduced. Acts 1911,
pp. 108, 127. 1921, pp. 185, 187.
As to classification of land for assessment, see § 439 (12) ;
assessment of damages, § 439 (11); maintenance of drain-
age after establishment, § 439 (29). As to when payment
made, see § 439 (32) ; issuance of bonds, § 439 (32) ; waiver
to right of defense against assessment, § 439 (,33); issu-
ance of bonds, § 439 (34); re-assessments, § 439 (35); ad-
ditional assessments, § 439 (36); rate of interest on bonds,
§ 439 (42); validation of bonds, § 439 (44); bonds as se-
curities for investments, see § 439 (46) ; borrowing to meet
payment of bonds, § 439 (43). As to other duties of tax
collectors under act, see §§ 439 (34), (36); payment of com-
missions to tax collector, § 439 (47). As to preservation of
all records, see § 439 (18).
Assessments Not Ad Valorem. — It has been held by this
court that assessments of the character involved in this
suit "are radically different from ad valorem taxes, and
are not taxes within the meaning of the constitution." Al-
mand v. Pate, 143 Ga. 711, at p. 716 (25 S. L\ 909), and
citations. Witherow v. Board of Drainage Commissioners,
155 Ga. 476. 117 S. E. 329.
Description of Land. — Levies upon land under this act
are not void because the description of the land is too vague
and indefinite, where they referred to the recorded assess-
ment role or tax duplicate which in turn referred to a
plat of the original survey which was on file in the clerk's
office, the survey being sufficiently definite. Andrews v.
Moss, 160 Ga. 793.
§ 439(32). Payment of assessments or bonds for
same. — If the total cost of the work is less than an
average of twenty-five cents per acre on all the
land in the district, the assessment made against
the several tracts shall be collected in one install-
ment, by the same officer and in the same manner
as State and county taxes are collected, and pay^
able at the same time. In case the total assess-
ment exceeds the average of twenty-five cents
per acre on all lands in the district, the Board
of Drainage Commissioners shall give notice by
publication for two consecutive weeks in some
newspaper of general circulation in the district,
if there be* one, by posting a notice at the court
house door, and also by posting written or printed
notices at five conspicuous places in the district,
that they propose to issue bonds for the con-
struction of said improvement, giving the amount
of the bonds to be issued, the rate of interest they
are to bear and the time when payable. Any
landowner having lands assessed in the district
and not wanting to pay interest on the bonds
may, within thirty days from the date of said no-
tice, pay to the county treasurer the full amount
of his assessment and have his land released
therefrom. Acts 1911, pp. 108, 128. 1918, p. 148.
See cross references under § 439 (31). As to other du-
ties of treasurer, see §§ 439 (19), (20), (22), (33), (34), (37).
As to duties of drainage commissioners generally, see cross
references under § 439 (19). As to preservation of all rec-
ords, see § 439 (18).
Payment in Bonds Issued by District. — A landowner within
a drainage district who has been subjected to annual as-
sessment and drainage tax for the improvement in accord-
ance with the provisions of the Act of 1911, as amended
by the provisions of the Acts of 1918 and 1921, can not dis-
charge this liability to the commissioners of a drainage
district by paying the assessment against his land in the
bonds or coupons issued by such drainage district. McVey
v. McWilliams, 157 Ga. 220, 121 S. 3. 641. See note of thi's
case under § 439 (34).
§ 439(33). Waiver of right to defense against
assessment— "Person." — Each and every person
owning land in the district which is assessed for
the construction of an improvement who shall
neglect or fail to pay the full amount of his as-
sessment to the county Treasurer within the time
specified, shall be deemed as consenting to the is-
suing of said drainage bonds, and in consideration
of the right to pay his assessment in installments
he thereby waives his right to any defense against
the collection of said assessment because of an ir-
regularity, illegality or defect in the proceedings
[ 100 ]
§ 439(34)
SYSTEM OF COUNTY DRAINAGE
§ 439(34)
prior to this time, except in the case of an ap- trict subject to the provisions herein contained. All
peal as heretofore provided, which is not affected
by this waiver. The term "person" as used in
this Act, includes any firm, company or corpora-
tion. Acts 1911, pp. 108, 128.
As to waiver of irregularities in hearings, etc.. see §
439 (39). As to making of assessments, see §' 439 (31) and
references.
Failure of Contractor to Complete Work. — In Perkins v.
Board, 148 Ga. 292, 96 S. E. 418, the court, after substan-
tially quoting this section, holds that the failure of the con-
tractor to complete the work as specified, is no ground for
resisting collection of the amount assessed.
Failure to Appear. — Where a party fails and refuses to
appear and object to the creation of the drainage district
and appointment of drainage commissioners, who subse-
quently make assessments against the landowners for im-
provements made on the land, or, having objected, fails to
prosecute the case on objections filed, which are dismissed,
or, after the assessment, fails to avail himself of the right
of appeal as provided in the drainage Act of 1911, such
landowner will not be heard to set up any defense which
he had when and before the assessment was made. Goolsby
v. Drainage Commissioners, 156 Ga. 214, 119 S. E. 644.
See § 439 (39).
§ 439(34). Bonds for drainage, how issued and
collected. — At the expiration of thirty days from
the date of the notice provided in Section 439(32)
the Board of Drainage Commissioners may issue
bonds for the full amount of the assessment not
paid in to the county treasurer, together with the
interest thereon, costs of collection or other in-
cidental expenses. These bonds shall bear six
per cent, interest per annum, pa}^able annually, or
semi-annually, in the discretion of the Board of
Drainage Commissioners, and shall be paid in ten
equal annual installments. The first installment
of the principal shall mature at the expiration of
three years from the date of issue, and one install-
ment each succeeding year for nine additional j agajnst gaid Drainage District or the Board of
years. The commissioners may sell these bonds Drainage Commissioners of said district, wherein
at not less than par and devote the proceeds to I the court mav jssue a wrjt 0f mandamus against
the payment of the work as it progresses. In no j tne said Drainage District, its officers, including
case shall bonds be issued until the tax levy has j the tax collector and treasurer, directing the levy-
been made to meet them as they come due. The j }ng 0f a tax or special assessment as herein pro-
bonds issued shall be for the exclusive use of the j vided> and the collection of same, in such sum as
levee or drainage district specified on their face, I may be necessary to meet any unpaid install-
assessments levied under authority of this Act,
and the Acts amendatory thereof, shall be due
and payable on or before December 20th, in each
year preceding the maturity of the installment of
principal or interest of the bonds or indebtedness
which the assessment is levied to pay; and it
shall be the duty of the tax collector to collect
such assessments in the same manner and at the
same time as he collects State and county taxes,
and issue is receipt therefor. The necessary books
and blanks for this purpose shall be provided at
the expense of the Drainage District. The tax
collector shall, not later than January 1st of each
year, make a report of all unpaid assessments due
for the preceding year to the Board of Drainage
Commissioners, and shall at the same time issue
his execution to enforce collection of the same,
which shall proceed as ordinary executions for
State and county taxes; all unpaid assessments
shall bear interest at the rate of 7 per cent, per
annum from December 20th until paid, and shall
be collected by the tax collector in the same man-
ner as the assessment. Whenever a district is
incorporated in more than one county the assess-
ments shall be due and payable in the county
where they are levied, and the tax collector of
that county shall issue executions as hereinbefore
provided, which may be levied by any sheriff or
constable in the county in which the land is lo-
cated. If any installment of principal or interest
represented by the said bond shall not be paid
at the time and in the manner when the same
shall become due and payable, the holder or
holders of such bond or bonds upon which de-
fault has been made may have a right of action
and should be numbered by the Board of Drain-
age Commissioners and recorded in the drainage
record, which record shall set out specifically the
ments of principal and interest and costs of ac-
tion; and such other remedies as are hereby vested
in the holder or holders of such bond or bonds in
lands embraced in the district on which the tax j default as may be authorized by law, and the
has not been paid in full, and which land is as- r;gnt 0f action is herebv vested in the holder or
sessed for the payment of the bonds issued and
the interest thereon. This assessment shall con-
holders of such bend upon which default has
been made authorizing them to institute suit
stitute the first and paramount lien, second only j against any officer on his official bond for failure
to State and county taxes, upon the lands as- j to perform any dutv imposed by the provisions
sessed for the payment of said bonds and the in- J 0f this Act, the official bonds of the tax collector
terest thereon as they become due, and shall be j and the county treasurer shall be liable for the
collected in the same manner by the same officers j faithful performance of the duties herein assigned
as the State and county taxes are collected by levy | tnem. Such bonds may be increased by the
and sale, and any purchaser at such sale shall ac- i Board of County Commissioners. It shall be the
quire title to said land so sold subject only to I duty of said Board of Drainage Commissioners
to State and, County taxes, and taxes levied for j to see that executions to enforce payment of all
any and all school purposes (and also City Taxes, i unpaid assessments aforesaid are issued by the
if said, lands be located in an incorporated town or tax collector not later than the 15th day of Tan-
city) and the unpaid assessment due or to be- i uary Gf each year, and are immediately placed by
come due, and such unmatured assessments shall him in the hands of the sheriff or other proper
at maturity be collected in like manner by levy levying officer and to see that levy is promptly
and sale of said land, the title to vest in the las':
purchaser at any such sale. Any and. all execu-
tions issued under and by virtue of the provisions
of this Act, shall constitute a special lien upon the
lands of such part lying within said drainage dis-
made and followed in due course by advertisement
and sale of the land in said drainage district of
each person who fails to make payment in full to
such levying officer on or before the 15th day of
Februarv in each vear, and it shall be their fur-
[101]
§ 439(34)
SYSTEM OF COUNTY DRAINAGE
§ 439(37)
ther. duty to see that all county officers and per-
sons charged with any duty herein, including the
levying of a special tax assessment and collection
of the same, shall promptly and faithfully dis-
charge their respective duties. Acts 1911, pp. 108,
129. 1918, pp. 147, 149. 1921, p. 185. 1923, p. 85.
1925, p. 179. .
For other provisions relating to bonds, see cross refer-
ences under § 439,(31). As to manner of issuing execution
against defaulters, see § 1211, par. 10.
Constitutionality. — The portion of this section that pro-
vides that "the official bonds of the tax collector and county
treasurer shall be liable" is not in conflict with § 6600,
which provides for uniform tribunals to regulate county
matters; nor is the section void as referring to more than
one subject-matter or referring to matter not contained in
its title; and it is not void as an attempt to impose duties
which extend the jurisdiction of the treasurer beyond the
territorial limits in which he was elected to serve. Mc-
Farlin v. Board of Drainage Commissioners, 153 Ga. 766,
113 S. E. 447. See notes to § 439 (46).
Sale of Bonds at Par. — Drainage bonds can not be sold
for less than par. Board of Drainage Commissioners v.
Arnold, 156 Ga. 733, 120 S. E- 310.
What Constitutes Par Value.- -The par value of an in-
terest-bearing bond on the day of its issuance is the prin-
cipal thereof; and on any date thereafter such par value is
the sum of the principal and the accrued interest. Board
t Drainage Commissioners v. Arnold, 156 Ga. 733, 120 S.
E. 310.
Same — Allowance of Commissions. — The allowance of com-
• isions, directly or indirectly, to the purchaser of such
(Is violates the provision of the drainage act prohibiting
ir sale at less than par. Board of Drainage Commis-
lers v. Arnold, 156 Ga. 733, 120 S. E- 310.
he contract between the drainage commissioners and
■ purchaser of bonds, by which the latter is to pay to
E former the par value thereof, is a legal and binding
•■tract; and the purchaser will be liable to the drainage
lie trict for their par value, notwithstanding the contract
between the drainage commissioners and a person, other
than the purchaser, by which commissions for the sale of
these bonds were to be paid nominally to such third per-
son, but in fact were to go to the purchaser. The commis-
sion contract, being void, furnishes no defense to the con-
tract for the purchase of the bonds at par. Board of Drain-
age Commissioners v. Arnold, 156 Ga. 733, 120 S. E. 310.
Same — Non-Interest-Bearing Certificates. -Under this stat-
ute a sale of these bonds, bearing 8 per cent, interest, in
part for cash, and in part of a non-interest-bearing time
certificate of deposit, payable in the future, amounts to
a sale at less than par. Board of Drainage Commission-
ers, 156 Ga. 733, 120 S. E- 310.
Execution — To Whom Directed. — This section as 'amended
in 1918 directs that executions issued by the tax collector
against the landowner shall be levied by any sheriff or
constable in the county in which the land is located. A
levy made and advertised by such sheriff is not illegal and
void for the reason that the execution is directed "to any
lawful officer to execute and return." Byars v. Curry, 75
Ga. 515; Goolsby v. Board of Drainage Commissioners, 156
Ga. 213, 119 S. E. 644.
Same — Remedy of Claimants of Land. — Upon the levy of
an execution issued by authority of this section as amended
in 1918, the remedy provided in the Civil Code, § 1159, was
available to a claimant of the land levied on. Campbell v.
Board of Drainage Commissioners, 156 Ga. 64, 118 S. E-
720.
Same — Injunction against Execution. — Several landowners
in a drainage district can join in an equitable petition to
restrain the enforcement of void executions issued to col-
lect assessments levied upon their lands in such district;
and the existence of a remedy by affidavit of illegality in
favor of each individual landowner would not defeat their
remedy by injunction. Board of Drainage Commissioners
v. Arnold, 156 Ga. 733, 120 S. E- 310.
It is no cause, on the part of a landowner whose prop-
erty has been improved under the drainage Act of 1911, to
enjoin the enforcement of executions against the land as
his property, that he parted with title to the land after
the assessment had against such land was made. Espe-
cially is this true where the vendee of the landowner is
made a party to the assessment proceedings. Goolsby v.
Board of Drainage Commissioners, 156 Ga. 213, 119 S. E-
644.
Same — Same — Parties. — After the rendition of final judg-
ment by the drainage court establishing a drainage dis-
trict and confirming the final report of the board of view-
ers under § 439 (15), that court was without jurisdiction to
[10
entertain a petition to make a third person a party to the
proceeding to establish such district; and the judgment of
said court making such person a party thereto was a nul-
lity, and was properly so treated by a court of equity in an
action brought by such party to enjoin the enforcement of
execution issued against him to collect assessments levied
upon his lands to pay the costs of the drainage improve-
ment made in pursuance of the judgment creating such
district ; and" this is so although such person was made a
party to the case upon a rule to show cause, and made no
objection thereto. Board of Drainage Commissioners v.
Wright, 155 Ga. 436, 117 S. E- 241.
Same — Sufficiency of Description in Execution. — The levy
of execution in the following cases held not void for uncer-
tainty in the description of the land. Conley v. Redwine.
109 Ga. 640, 35 S. E. 92; Wiggins v. Gillette, 93 Ga. 20, 19
S. E- 86; Goolsbv v. Board of Drainage Commissioners,
156 Ga. 213, 119 S'. E- 644.
Re-Sale of Land to Collect Payment. At a sale of land
included within a drainage district, in conformity to law,
to collect an assessment of drainage tax, the title to the
land which has been drained under the provisions of the
drainage law passes unencumbered to the purchaser, free
from the lien of the entire assessment tax, and such land
when once sold to collect an assessment of the drainage tax
is not subject to be sold again in order to pay subsequent
drainage-tax assessments. McVey v. McWilliams, 157 Ga.
220, 121 S. E. 641.
Appointment of Receiver to Enforce Collections. A court
of equity may appoint a receiver to make sale of lands in
a drainage district, of such owners who have defaulted in
payment of the drainage assessments, for the purpose of
impounding the funds received from the sale, with a view
to an equitable disposition of the proceeds arising from
such sale, either in discharge of other installments of the
tax assessment for which the land which was sold was or
may be liable, or in equitably distributing the proceeds of
the sale pro rata in satisfaction of the bonds or coupons
of the drainage district, and in general by the application
of the proceeds of the sale under order of the court. Mc-
Vey v. McWilliams, 157 Ga. 220, 121 S. E. 641.
§ 439(35). Re-assessment. — Where the Court
has confirmed an assessment for the construction
of any public levee, ditch or drain and such as-
sessment has been modified by the Court of su-
perior jurisdiction, but for some unforeseen cause
it cannot be collected, the Board of Drainage
Commissioners shall have power to change or
modify the assessment as originally confirmed to
conform to the judgment of the Superior Court
and to cover any deficit that may have been caused
by the order of said Court or unforeseen occur-
rence. The said relevy shall be made for the ad-
ditional sum required, in the same ratio on the
lands benefited as the original assessment was
made. Acts 1911, pp. 108, 130.
For other provisions relating to assessments and pay-
ment, see cross references under § 439 (31).
§ 439(36). Additional Assessments. — Whenever
the costs necessary to complete any district or-
ganized under this Act, and the Acts amendatory
thereof, cannot be met by the original assess-
ment, as from failure to correctly estimate the
amount of rock in a district, or from other causes
unknown at the time of making the original as-
sessment, it shall be the duty of the Board of
Drainage Commissioners to levy additional as-
sessments to meet such necessary expense, which
they shall do in the same manner and in the same
proportion as original assessments are made, and
which shall be collected in the same manner. The
funds collected under this section shall be paid
by the Tax Collector to the officer designated by
the Board of Drainage Commissioners. Acts
1918, p. 153.
For other provisions relating to assessments and pay-
ment, see cross references under § 439 (31).
§ 439(37). Compensation of engineers and
others. — Any engineer employed under the provi-
§ 439(37)
SYSTEM OF COUNTY DRAINAGE
§ 439(42)
sions of this Act, shall receive such compensation
per diem for his services as shall be fixed and
determined by the Drainage Commissioners. The
viewers other than the engineer, shall receive
three dollars per day, the rodmen, axmen, chain-
men and other laborers shall receive not to ex-
ceed two dollars per day each, all other fees and
costs incurred under the provisions of this Act
shall be the same as provided by law for like
services in other cases, said costs and expenses
shall be paid by the order of the Court, out of
the drainage fund provided for that purpose, and
the Board of Drainage Commissioners shall issue
warrants therefor when funds shall be in the
hands of the Treasurer. Acts 1911, pp. 108, 131.
As to compensation of reviewers for first report, see §
439 (2) and note. As to costs for surveys, see § 439 (13).
As to payment of damages to railroads, see §§ 439 (26), (28).
As to compensation for tax collector, see § 439 (47). As
to power of board to borrow generally, see § 439 (43). As
to assessment of costs,' see § 439 (31). As to powers of
board generally, see cross references under § 439 (19). As
to preservation of all records, see § 439 (18).
Applies to Surveys before Establishment. — This section of
the drainage act, in view of the context and the provisions
of the act as a whole, must be construed to apply to the
•compensation of engineers and others employed to make
the survey of the proposed drainage district before the es-
tablishment of the district and the incorporation of the com-
missioners. Being the last expression of the act upon the
subject therein dealt with, it must be held to prevail over
any preceding provisions with which it may be in conflict.
Board of Drainage Com. v. Carey, 30 Ga. App. 378, 118 S.
15. 445. See notes of this case, under § 439 (2).
Recovery of Surplus Compensation. — If more has been
paid to the officers than they were entitled to under the
terms of this section, then it can be recovered in a proper
proceeding for that purpose by the board of drainage com-
missioners; and if they refuse to perform their duty, they
can be compelled to do so; but the petitioners were not
authorized to proceed in this action to have such sums re-
stored. Goolsby v. Board of Drainage Commissioners, 156
Ga. 213, 119 S. F. 644.
§ 439(38). Co-operation with U. S. officials.— In
the event that the United States Government
makes provision for loans to promote drainage
and reclamation work or provides for such work
to be done under the supervision of its officials,
the Drainage Commissioners for districts created
under this Act are empowered to avail them-
selves of such provisions at any time by co-operat-
ing with said United States Government officials
for the completion of any work begun prior to
such provision being made, and said Drainage
Commissioners are empowered to levy and collect
in the manner herein provided the taxes against
the land and to pledge and pay the receipts from
such levy in liquidation of the loan made as
.aforesaid by the United States Government; and
it shall be the duty of the State Geologist of this
State to co-operate and solicit the co-operation
of the various bureaus of the United States Gov-
ernment, in promotion of all work undertaken by
this Act. Acts 1911, pp. 108, 131.
§ 439(39). Liberal construction — Procedure —
Appeal and waiver. — The provisions of this Act
shall be liberally construed to promote the levee-
ing, ditching, drainage and reclamation of wet
and overflowed lands. Any person owning lands
in the district as defined in the final report of
the Board of Viewers and of the map accompany-
ing the same who has not previously been made
a party thereto, may upon ten days' notice in
writing given to such party, be made a party to
any proceeding under this Act and the Acts
amendatory thereof, by the Drainage Court; and
r 10:;
upon objections being filed by any person under
this section the burden shall be upon him to show
that the proposed improvement is not for the
public benefit and will not be conducive to the
general welfare of the community. Upon the re-
turn day of said notice, if no appearance is made,
or upon the overruling of objections, the court
shall make such person a party to said proceeding,
and his lands shall thereupon be bound for the
payment of assessments as fully as though he
were an original party. Any person may in writ-
ing, under oath, acknowledge the benefit of the
improvement and be made a party, and his lands
become bound for the payment of assessments
without order of court upon such acknowledg-
ment being entered upon the drainage record. The
collection of the assessment shall not be defeated
where the proper notices have been given by rea-
son of any defeat [defect] in the proceedings oc-
curing prior to the order of the court confirming
the final report of the viewers; but such order or
orders shall be conclusive and final that all prior
proceedings were regular and according to law,
unless they were appealed from. If, on appeal,
the court shall deem it just and proper to release
any person or to modify his assessment or lia-
bility, it shall in no manner affect the rights and
legality of any person other than the appellant,
and the failure to appeal from the order of the
court within the time specified shall be a waiver
of any illegality in the proceedings, and the
remedies provided for in this Act shall exclude
all other remedies. Acts 1911, pp. 108, 131. 1918,
pp. 147, 151.
As to provisions of act for making parties, see §§ 439 (2),
(4), (6), (15), (25), (26). As to assessment of damages, see
§ 439 (11) ; assessment of benefits and classification, §
439 (12). As to appeals and objections, see §§ 439 (8), (17),
(25), (26), (27).
Making Parties after Final Hearing. — See note under §
439 (34), from the case of Comm. v. Wright, 155 Ga. 436.
§ 439(40). Appointees removable for cause. —
Proceedings under this Act may be ex parte or
adversary. Any engineer, viewer, superintendent
of construction or other person appointed under
this Act may be removed by the Court, upon pe-
tition, for corruption, negligence of duties or
other good and satisfactory causes shown. Acts
1911, pp. 108, 132.
As to creation of court, see § 439 (1). As to appointees
under act, see §§ 439 (2), (20).
§ 439(41). Existing laws on drainage not re-
pealed.— This act shall take effect from and after
its passage and shall not repeal or change the law
contained in Volume 1, Code of Georgia, 1910, on
the subject of drainage, but shall be cumulative
thereto, nor shall it affect any local drainage sys-
tem established thereunder. Acts 1911, pp. 108,
1 32.
For the existing drainage laws referred to, see §§ 432-439.
§ 439(42). Drainage bonds, rate of interest. —
Where bonds heretofore and hereafter issued un-
der the preceding sections do not in any case ex-
ceed the sum of one hundred thousand dollars,
the rate of interest thereof may be fixed by the
Board of Drainage Commission at not more than
eight per cent per annum. Acts 1913, p. 85, 1917,
p. 100. 1920, p. 148.
For other provisions of act relating to bonds and assess-
ments, see cross references under § 439 (31).
§ 439(43)
SYSTEM OF COUNTY DRAINAGE
§ 439(45)
§ 439(43). Borrowing. — The Board of Drainage
Commissioners established and created under the
provisions of this Act shall have the right to bor-
row money necessary to meet promptly payments
of principal and interest on bonds as they mature
and to give their note or notes, secured by the
unpaid assessments already levied for meeting
such bonds or coupons being retired. Acts 1921,
pp. 185, 187-8.
As to borrowing from the United States, see § 439 (38).
As to issue and payment of bonds, see § 439 (34) and ref-
erences.
§ 439(44). Bonds how validated. — Whenever
bonds heretofore and hereafter issued under this
Article, in any case, the same shall be validated as
other bonds are now required to be validated un-
der the provisions of existing laws of this State.
Acts 1913, p. 85.
For other provisions of act relating to bonds, see cross
references under § 439 (31).
Effect of Failure to Intervene. — Where bonds issued for
the purpose of improving lands under the drainage laws of
this State were duly validated, landowners whose property
was to be improved by the proceeds of the bonds, who had
notice of the validation proceedings, who failed to intervene
in those proceedings, and who bring a petition to enjoin the
collection of an assessment to pay the principal and interest
due, will be estopped from attacking the validity of the leg-
islative act under which the bonds were issued, on the
ground that the act is unconstitutional. Goolsby v. Board
of Drainage Commissioners, 156 Ga. 213, 119 S. F- 644.
439(45) Validation of bonds of districts here-
••:• established. — Any and all bonds here-
after issued under this Article in any case may be
■ulated in the following manner, to- wit:
. uragraph A. Whenever any Drainage District
shall have been organized under and by virtue of
this Act and the Drainage Commissioners shall
determine that the issuance of bonds for the pur-
pose of constructing such improvements is ad-
ble or necessary, the said Drainage Commis-
<■ ers shall within thirty days thereafter serve
ce upon the Solicitor General of the Circuit
i which said Drainage District desired to
issue bonds under the terms and conditions of
said Drainage Act, and such service shall be per-
sonal upon the Solicitor General, and in the event
he is absent from the Circuit, then it shall be
served in person upon the Attorney General of the
State.
Paragraph B. Within twenty days from the
date of the service of the notice provided, in the
preceding paragraph, the Solicitor General or the
Attorney General, as the case may be, shall pre-
pare and file in the office of the Clerk of the Su-
perior Court of the County in which said Drain-
age District has been organized a petition, a true
and correct copy of such petition to be filed in the
office of the Clerk of the Superior Court in each
of the counties in which any of the lands embraced
within such Drainage District may lie, same to be
considered an original action in the Superior Court
in each of the counties in which such petition may
have been filed, such action to be brought in the
name of the State of Georgia and against such
Drainage District so desiring to issue bonds, set-
ting forth the service of the notice, as provided in
the preceding paragraph, the name of the Drain-
age District seeking to issue said bonds, the
amount of the bonds to he issued, what interest
they are to bear how much principal and interest
is to be paid in full, and shall attach thereto as ex-
hibit true and correct plats or maps of the area to
!be drained, showing the acreage within said area
owned by each of the members of said District,
the class or classes to which the lands of each
member has been assigned and the acreage of
each member in each class, the amount to foe
assessed against the acreage in each class, and as
well as the total amount to be assessed against
each member, and shall obtain from the
Judge of the Superior Court in . the county
in which said Drainage District is organ-
ized and as well as from the Judge of the
Superior Court in each of the other counties in
which any portion of said Drainage District may
lie, and order requiring the Drainage Commis-
sioners representing such Drainage District to
show cause at the Court House in each of the
several counties, at such time as the Judges of
such courts may direct, the several hearings to
be on different dates and all within twenty days
from the filing of the petition, why the bonds
should not be confirmed and validated which pe-
tions as filed in the several counties shall be
served in person upon the Drainage Commission-
ers by the sheriff of the county in which such
Commissioners reside, or such Commissioners
may acknowledge service thereon, and to which
petition such Commissioners shall make sworn
answers within the time prescribed by the order
therefor.
Paragraph C. Within the time prescribed in the
order of the Judge of each of the Superior Courts
herein referred to shall, at the Courthouse in the
county wherein the land embraced in the Drain-
age District and at the time fixed in said order
therefor, proceed to hear and determine all the
questions of law and fact in said cause, notice of
which hearing shall be published immediately pre-
ceding such hearing in two issues of that newspa-
per in which sheriff's advertisements are published
in said county, and shall render judgment thereon,
and in the event his judgment shall be in favor of
the issuance of bonds, a judgment and order shall
be entered to that effect, and any person owning
lands lying within such Drainage District, resident
of county in which said hearing is had, or owning
lands therein and within said District may be-
come a party to said proceedings by intervention
either before or after the rendition of the judg-
ment and order herein referred to, and if dissatis-
fied with the judgment of the court confirming and
validating the issuance of the bonds, may except
therefrom within twenty days from the judgment,
as in injunctions, and upon the hearing in the Su-
preme Court such bill of exceptions shall be heard
in accordance with the practice regulating the
hearing of bills of exceptions in criminal cases.
Paragraph D. In the event no .bill of exceptions
is filed within the time prescribed herein, or, if filed,
is affirmed by the Supreme Court, the judgment of
the Superior Court, so confirming and validating
the issuance of the bonds, shall be forever con-
clusive upon the validity of such bonds against
the said Drainage District and the members
thereof whether such members were original pe-
titioners in said original petition to organize such
District or were brought in by service as provided
in said Act, and the validity of said bonds and the
[104 1
§ 439(46)
COUNTY AND MUNICIPAL BONDS AND DEBTS
§ 440
assessments thereunder shall not thereafter be
called into question in any court in this State.
Paragraph E. Bond, when issued under the
provisions of this Act, shall have stamped thereon
by the Clerk of the Superior Court in which said
Drainage District is organized the words, "Vali-
dated and confirmed by judgment of the Superior
Courts of Counties," naming
the counties in which the Superior Courts thereof
may have confirmed said issue of bonds, specify-
ing the dates when such judgments were rendered
and the courts in which same were rendered
which shall be signed, by the Clerk of the Superior
Court in which said Drainage District is organ-
ized, certified copies of the final orders validating
and confirming said, {bonds having first been filed
as a part of the record in the office of said clerk,
and which entry and certificate of the clerk on
such bonds shall be original evidence of the facts
recited therein and shall be received as original
evidence in any court in this State.
Paragraph F. The costs of the proceedings
herein contemplated shall be in all event taxed
against the said Drainage District and in addition
thereto said Drainage District shall pay to the So-
licitor General the sum of twenty-five dollars in
each county in which such proceedings may be
had.
Paragraph G. Provided the provisions of this
Amendment shall apply only to such drainage dis-
tricts as may be hereafter established. Acts 1925,
pp. 179, 184.
See preceding section and references.
§ 439(46). Bonds as lawful securities for invest-
ment.— Any and all bonds authorized and issued
under the provisions of this Act shall be eligible
as good and lawful securities for the investment
of capital stock, surplus and reserve funds of any
insurance company, engaged in the business of
life, fire, marine, accident or health insurance or
fidelity, or employer's liability insurance, now
organized or hereafter organized under the laws
of this State, or any insurance company now or
hereafter organized under the laws of any State
or foreign country and transacting any of the
kinds of business aforesaid in this State. Any
such bonds shall be eligible for deposit by any
bank or trust company, with the State Treasurer
as security for funds of this State deposited by
said Treasurer with such bank or trust compaiw,
and shall likewise be eligible for deposit by in-
surance companies whenever a deposit of bonds
is required of insurance companies by the laws of
this State. Acts 1921, pp. 185, 188.
For other provisions of act relating to bonds, see cross
references under § 439 (31).
§ 439(47). No commission from drainage fund.
— The tax-collector nor the county treasurer, or
the equivalent officer, shall receive no commission
for handling the drainage fund, nor for perform-
ing any duty imposed upon him in the preceding-
sections. Acts 1917, p. 100.
For duties of tax collector under act, see §§ 439 (31), (34),
{36). For compensation of tax collector, see § 1234 and
cross references. As to bridges which must be constitu-
tional under act, see §§ 439 (25), (26).
Section Declaratory of Existing Law. — This section merely
provides what was already the law under § 588. McFarlin
v. Board of Drainage Commissioners, 153 Ga. 766, 113 S.
E. 447.
Validity of Section. — This section is not void on the
ground that it withdrew and abolished all of the emolu-
ment of the county treasurer as ex -officio treasurer of the
drainage commission, and that this amounted to an aboli-
tion of the office of ex-omcio treasurer of the drainage com-
mission, etc. McFarlin v. Board of Drainage Commission-
ers, 153 Ga. 766, 113 S. F. 447. See §§ 439 (34) and 439 (19).
§ 439(48). Cost of new bridges. — The cost of
building all new bridges thereunder shall be
borne and paid for by the county. Acts 1913, p.
85.
As to the building of bridges on highways, see § 439 (25).
As to the building of railroad bridges, see § 436 (26).
CHAPTER 3.
County and Municipal Bonds and Debts — Sinking
Funds.
ARTICLE l.
Election on Issue of Bonds or Incurring New
Debt.
§ 440. (§ 377.) Notice of election on issue of
bonds. — When any county, municipality, or divi-
sion shall desire to incur any bonded debt, as pre-
scribed in paragraphs 1 and 2, section 7, Article
7 of the Constitution of 1877, the election required
shall be called and held as follows, to wit: The
officers charged with levying taxes, contracting
debts, etc., for the county, municipality, or divi-
sion shall give notice for the space of thirty days
next preceding the day of election in the news-
paper in which the sheriff's advertisements for the
county are published, notifying the qualified voters
that on the day named an election will be held to
determine the question whether bonds shall be
issued by the county, municipality, or division.
In said notice he shall specify what amount of
bonds are to be issued, for what purpose, what
interest they are to bear, how much principal and
interest to be paid annually, and when to be fully
paid off. Acts 1878-9, p. 40.
I. In General.
IT. Sufficiency of Notice.
III. Special and General Laws.
Cross References.
See § 6563.
As to holding" election, see section immediately following.
As to debts other than bonded debts, see § 463. As to
compromise of bonded debts of municipalities, see § 905.
As to recordation and certification of bonds, see § 2230. See
generally, 8 Cum. Dig. 762; 9 Fnc. Dig. 532. For treat-
ment of use of injunction in restraining contracts, see 7
Fnc. Dig. 404. For treatment of validation of bonds, gen-
erally, see 8 Cum. Dig. 766; 9 Fnc. Dig. 540.
I. IN GENERAL.
Editor's Note. — Since the constitution, art. 7, § 7, par. 1
(§ 6563), has such direct connection with this section, at-
tention is called to the Act of 1918 (Acts 1918, p. 99) amend-
ing it. One of the greatest changes is that instead of re-
quiring the assent of two-thirds of all the qualified voters
in these political subdivisions to the creation of such debts,
the provision as amended, requires the assent of only two-
thirds of the qualified voters thereof voting at an election
for this purpose, to be held as prescribed by law, provided
said two-thirds so voting shall be a majority of the regis-
tered voters. The amendment also does away with all spe-
cial registration and hereafter elections must be held under
general registrations applicable to all elections. See the
editor's note to § 443.
Attention is also directed to the Act of 1918, p. 915 [codi-
fied as § 6567 (1)] which authorizes certain corporations to
incur bonded debts for the public purposes of such corpo-
ration. This enactment is not exclusive but is cumulative
of the authority to vote upon and issue bonds.
Section Must Be Strictly Complied with. — In order to
render election legal, provisions of this section must be
[ 105 ]
§ 440
ELECTION ON ISSUE OF BONDS
§ 440
strictly complied with. Bowen v. Mayor, 79 Ga. 709, 4 S.
E. 159; Athens v. Hemerick, 89 Ga. 674, 16 S. E- 72; Pon-
der v. Mayor, 96 Ga. 572, 23 S. E. 498; Smith v. Dublin,
113 Ga. 833, 836, 39 S. E. 327; Berrien County v. Paulk, 150
Ga. 830, 105 S. E- 491. As to mandatory nature of the no-
tice required, see post, this note, "Sufficiency of Notice," II.
Election Not Invalid Because of Disregard of Directory
Provisions. — A bond election should not be declared invalid
on account of a disregard of merely directory provisions of
election laws, where such would not render an election for
municipal officers invalid. Brumby v. Marietta, 132 Ga.
408, 412, 64 S. E- 321. It is expressly stated in this case
that the above does not conflict with ruling of strict con-
struction.— (Ed. Note.) For examples of irregularities, see
post, this note, "Sufficiency of Notice," II.
Section 6063 Does Not Affect This Section. — Section 6063
relating to the publication of notices of sales and orders by
certain public officers and others, did not repeal or modify
that portion of this section, which requires that notice of
an election called for the purpose of determining whether
bonds shall be issued by a county shall be published for a
space of thirty days next preceding the day of the election.
Davis v. Dougherty County, 116 Ga. 491, 42 S. E- 764.
Denial by Election to Issue School Bonds Does Not Im-
pair Right of Taxation. — Ayers v. McCalla, 95 Ga. 555, 556,
22 S. E. 295.
County Has No Authority to Enter into Executory Con-
tract.— There is no authority of law for a county to enter
into an executory contract for the sale of bonds which, at
the time of the contract, the county is not authorized to
issue. For a breach of such an undertaking an action for
damages will not lie against the county. Robinson-Hum-
phrey Co. v. Wilcox County, 129 Ga. 104, 58 S. E. 644.
No Authority to Call Election Where Work Lawfully
Begun. Hogan v. State, 133 Ga. 875, 67 S. E- 268.
Section Not Complied with Issuance of Bonds Restrained
by Injunction. — Where the statute has not been complied
with the issuance of the bonds may be restrained by in-
junction. Athens v. Hemerick, 89 Ga. 674, 16 S. E. 72;
Perry v. Norwood, 99 Ga. 300, 25 S. E- 684; Bowen v.
Ma -or. 79 Ga. 709, 4 S. E. 15.
Unnc ssary to Publish Authority of Mayor to Call Elec-
^••: ( is not necessary to publish the ordinance, or reso-
lution, '. y which the mayor was authorized to order an
elect; 'i: o be held upon the question whether or not such
bono< should be issued, provided the notice required by
aw wa . duly published. Heilbron v. Mayor, 96 Ga. 312,
23 S- >L 206.
n Authority to Issue Bonds for Past Indebtedness. Mayor
rones, 122 Ga. 455, 50 S. E. 340.
II. SUFFICIENCY OF NOTICE.
lents as to Notice Mandatory. — The law requir-
to be given in a certain way is mandatory, and a
comply with the law vitiates the election, if
objec s raised at the proper time and in the proper
. is v. Dougherty County, 116 Ga. 491, 495, 42 S.
rin v. Gregory, 86 Ga. 605, 13 S. E- 120.
:o Use Explicit Language Treated as Irregular-
hough the notice of the election provided for by
a.. t( t may not be in the clearest and most unequivocal
terms, yet where the terms of the notice were such as to
show that the question was necessarily to be passed upon
in the election, the failure to use more explicit language in
this respect (the notice as to all other matters being suf-
ficient) will, after the election has taken place and after
the bonds, in pursuance of its result, have been issued and
sold and their proceeds applied as required by the act, he
treated as a mere irregularity not invalidating the bonds,
and one of which it is too late for a taxpayer who partici-
pated in the election and who had knowledge of all the
facts to complain. Brand v. Lawrenceville, 104 Ga. 486, 30
S. E. 954.
Inadvertently Omitting Last Publication Treated as Mere
Irregularity. — And, where the advertisement prescribed was
published once a week for four weeks, and the last pub-
lication was inadvertently omitted but the other three were
duly made, the omission may be treated as a mere irregu-
larity, if more than two-thirds of the qualified voters ac-
tually voted, and if the result has been acquiesced in until
after action has been taken on the faith thereof by which
substantial rights have arisen. Irvin v. Gregory, 86 Ga.
605, 13 S. E. 120.
Ordinance Not Meeting Requirements of This Section
Void. — If notice be given under an ordinance prescribing the
items of the notice and said ordinance does not meet the
requirements set forth in this section both the ordinance
and the notice are void and of no effect. Wilkins v. Waynes-
boro, 116 Ga. 359, 42 S. E. 767; Shinall v. Cartersville, 144
Ga. 219, 87 S. E- 290; Scott School Dist. v. Carter, 28 Ga.
App. 412, 111 S. E. 216.
Publication — In Paper Used by Sheriff. — Notice of elec-
tion for issuance of bonds must be in paper in which sher-
iff publishes his advertisements. Coffee v. Ragsdale, 112
Ga. 705, 37 S. E- 968; Scott School Dist. v. Carter, 28 Ga.
App. 412, 111 S. E. 216.
Same — For Thirty Days. — The general law requiring the
publication of notice for thirty days, if the publication was
made only twice, on January 21 and February 4, and the
election was held on February 5, this was not a compli-
ance with the requirements of the law. Bowen v. Mayor,
79 Ga. 709, 4 S. E- 159.
Amount of Bonds to Be Issued and for What Purpose. — >
A notice which provides that a given amount should be
used for the purpose of building a school, and another
amount for the improvement of the water plant, and the
surplus, if any, to be used by the mayor and council in
such a manner as they might see fit, does not meet, the
legal requirements of a notice which shall specify "what
amount of bonds are to be issued, and for what purpose."
Smith v. Dublin, 113 Ga. 833, 39 S. E. 327.
Even if no legislation is necessary to authorize a mu-
nicipal corporation to hold an election to determine whether
a debt other than a bonded indebtedness shall be incurred,
an election held pursuant to an ordinance and notice
which does not state the amount of the debt to be in-
curred will not be sufficient to authorize the execution
of a contract incurring an indebtedness. Dawson v. Daw-
son Waterworks Co., 106 Ga. 696, 32 S. E- 907.
But where the order and notice of election stated that
the proceeds were used in improving and constructing the
public roads on a certain county naming the roads to be
improved and the order in which they were to be worked,
such statement is sufficient under this section, requiring
that, the purpose for which the bonds were to be issued
should be stated. Moody v. Board, 29 Ga. App. 21, 113 S.
E. 103.
For another illustration of sufficient specification, see Pon-
der v. Mayor, 96 Ga. 572, 23 S. E- 498.
Same — Reduction of Amount before Validation. — Where
the election was regular as to all the requirements except
that the amount exceeded the constitutional limit, the judge
erred in reducing the amount of the bonds issued to a sum
within such limit and then declaring the issuance of such
bonds would be allowed. Berrien County v. Paulk, 150 Ga,
830, 105 S. E- 491; see same case in 24 Ga. App. 758. But
in Heilbron v. Mayor, 93 Ga. 312, 23 S. E. 206, it was held
that as the petition did not present the question whether
notice was illegal because the amount was unconstitutional,
injunction would not lie to restrain the authorities from is-
suing a less and proper amount.
It was said in Berrein County v. Paulk, supra, that the
two cases could be distinguished, for in Heilbron v. Mayor,
supra, the court said that the fact that the notice con-
tain a stipulation for bonds greater than the amount actu-
ally issued was not made on the petition to prevent the is-
suing and selling of the bonds involved and therefore the
trial judge did not consider that point. The cases were
distinguished because of a matter of pleading. See, Sewell
v. Tallapoosa, 145 Ga. 19, which held that where inter-
veners did not raise point that bonds were in excess of the
constitutional limit they can not in their bill of exceptions
assign this as error. — Ed. Note.
Amount of Interest. — Specifying that interest is to be
paid annually is not sufficient, failure to specify the amount
to be paid- renders the notice defective. Mayor and Coun-
cil of the City of Athens, 89 Ga. 674, 16 S. E- 72; Perry v.
Norwood, 99 Ga. 300, 25 S. E. 648; Thomasville v. Electric
Light, etc., Co., 122 Ga. 399, 50 S. E. 169.
Same — Exact Gross Sum of Interest. — But it is not es-
sential to the validity of the notice that it should state the
precise gross sum, in dollars and cents, to be annually paid
as interest; the facts actually stated furnishing a basis by
which a calculation could be easily and readily made show-
ing the exact amount of interest so to be paid. Ponder v.
Mayor, 96 Ga. 572, 23 S- E. 498.
Notice Need Not Specify Price of Bonds. — Notice is not
invalid because the price at which the bonds are to be sold
is not stated therein. Wimberly v. Twiggs, 116 Ga. 50.
52, 42 S. E. 478.
Notice Silent as to Collection of Annual Tax. — The fact
that the notice of the bond election was silent as to the
collection of the annual tax affords no reason why the bonds
should not be validated. Woodall v. Adel, 122 Ga. 301, 50
S. E- 102; Oliver v. Elberton, 124 Ga. 64, 52 S. E- 15.
Publication of Act Does Not Comply with Requirements
as to Notice. — The fact that a local act was published be-
fore the day of the election, and that it prescribed the
amount of the bonds, the interest thereon, and when they
were to be paid off, was not a sufficient compliance with
this section; nor was the fact that, out of 189 voters, only
17 voted against the measure, a sufficient answer to the
illegality of the notice. Bowen v. Mayor, 79 Ga. 709, 4 '
S. E. 159.
[106]
§ 441
ELECTION ON ISSUE OF BONDS
§ 442
III. SPECIAL AND GENERAL LAWS.
The election must be held under the general law and not
a subsequent local act prescribing a different manner of
election. County of Dougherty v. Boyt, 71 (".a. 484, and
such a local law is void. Elliott v. Gammon, 76 Ga. 766.
For a case holding evidence sufficient to show procedure
under general law rather than special or local law, see
Cowart v. Waycross, 1S9 Ga. 589, 126 S. E\ 476.
Special Law Prescribing Additional Requirements. A spe-
cial law which is void is one in conflict with a general law,
and not one in harmony with it and prescribing additional
matters in regard to the election not in conflict with the
general law. A special law providing that notice be pub-
lished in official gazette is construed in regard as to the
general law as to what notice should contain. Farmer v.
Thomson, 133 Ga. 94, 65 S. F. 180.
Election under Act of 1921 Must Follow This Section. —
The Act of 1919 (Ga. L. 1919. p. 345, § 143). as amended by
the Act of 1921, makes provision that in case of a school
district the board of trustees of that district shall call the
election on the question of whether they shall incur a
bonded debt to build and equip a schoolhouse, and the elec-
tion called must be concluded as provided by this section
and §§ 441 et seq. Jennings v. School Dist., 156 Ga. 15,
118 S. E. 560.
Registration — Local Law Concerning Applies Only to Elec-
tions Specified. — A local law for the registration of voters
in a given county which declares it unlawful to vote at
any election without having first registered, and then pro-
ceeds to require registration biennially in those years in
which elections are held for governor, members of con-
gress and of the assembly applies only to elections for the
officers designated, leaving the general law to operate upon
elections under this section. Kaigler v. Roberts, 89 Ga.
476, 15 S. F. 542.
Same — Only for Election of Officers. — When an act con-
templates a system of registration for only one election an-
nually, and consequently that system is confined to the
election of municipal officers at an election held to deter-
mine the question of issuing bonds there is no statutory re-
quirement upon the municipal authorities to order regis-
tration as a preliminary to this election. Howell v. Mayor,
91 Ga. 139, 16 S. E- 966.
§ 441. (§ 378.) Election, how held.— Said elec-
tion shall be held at all the voting or election pre-
cincts within the limits of the county, municipal-
ity, or division, and shall be held by the same per-
sons, and in the same manner, under the same
rules and regulations that elections for officers of
said county, municipality, or division are held, and
the returns shall be made to the officers calling or
ordering the election, who shall, in the presence
and together with the several managers (who
bring up the returns), consolidate said returns
and declare the result. Acts 1878-9, p. 40.
See notes to § 440.
As to debts other than bonded debts, see § 464.
Independent Issues Can Not Be Submitted as Single
Question. — When several distinct and independent proposi-
tions for the issuing of bonds by a municipality are sub-
mitted to the qualified voters of a town or city, provision
should be made in the submission for a separate vote upon
each. They can not be lawfully combined and submitted
to the voters as a single question. Rea v. LaFayette, 130
Ga. 771, 61 S. F- 707. And when a contract was entered into
which was submitted with other distinct propositions to
the voters in the above manner, it may be declared void
at the instance of the city. Americus, etc., Co. v. Ameri-
cus, 136 Ga. 25, 70 S. F. 578.
Question of Establishing School and Incurring Debt Sub-
mitted at Same Time. — Question of establishing and main-
taining school by local taxation and of authorizing town
to incur a debt by issuing bonds for purpose of purchas-
ing school property may be submitted to the qualified vot-
ers of the town at one and the same election, if the act
passed for this purpose be so framed as to accomplish this
end. Brand v. Lawrenceville, 104 Ga. 486, 30 S. F- 954.
An issue foreign to the matter of debt can not be sub-
mitted to the voters with a question of creating the debt,
although the question as to the establishment of the en-
terprise for which the debt is to be incurred may be sub-
mitted with the question of incurring the debt. Cain v.
Smith, 117 Ga. 902, 44 S. F. 5.
Consolidated Returns Submitted Prima Facie Correct. —
Where the duly elected managers of a municipal election
held in a city, for the purpose of determining whether or
not bonds should be issued for municipal purposes, sub-
mitted the consolidated returns to the mayor and general
council of such city, "and consolidated and the result de-
clared," showing that the election resulted in favor of
bonds, such consolidation was prima facie correct. Brown
v. Atlanta, 152 Ga. 283, 109 S. E. 666.
Joint Canvass of Returns by Mayor, Councilmen and
Managers. — Where on the day succeeding the election the
mayor and councilmen, duly assembled, called into the
meeting the managers of the election and jointly with them
canvassed the returns and declared the result of the elec-
tion, and in pursuance of such act the mayor and council-
men passed a .resolution reciting the declaration of the re-
sult in the manner indicated, this was a sufficient compli-
ance with this section in regard to joint declaration of the
result of such election, and, consequently, a copy of the
resolution was admissible upon proceedings to validate the
bonds. Sewell v. Tallapoosa, 145 Ga. 19, 88 S. E- 577.
Irregularity in Registering Voters. — If there was some ir-
regularity in the manner of registering a few voters, but
it did »not appear that such persons voted in the election,
or that they were in fact not qualified to register, or that
such irregularity affected the result, this furnished no cause
for declaring the election void, and refusing to validate
bonds authorized thereby. Brumby v. Marietta, 132 Ga.
408, 64 S. E. 321.
Election Not Invalidated When It Does Not Appear That
Voters Were Coerced. — An election held to determine the
question whether a town will incur an indebtedness will
not be invalidated by reason of the fact that voters were
improperly influenced to cast their votes in favor of in-
curring the debt; certainly not when it does not appear
that any voter was actually coerced to cast a vote con-
trary to his wishes. Fpping v. Columbus, 117 Ga. 263, 43
S. F. 803.
Same — Violation of Directory Provisions of City Chartei.
— A violation of directory provisions of a city charter (con-
cerning influencing voters) by some persons and a failure
to enforce them by the election managers did not operate
to invalidate the entire bond election, it not appearing that
the result would have been otherwise had there been a
compliance with such provisions. Brumby v. Marietta,
132 Ga. 408, 64 S. F- 321.
§ 442. (§ 379.) Bonds may be issued, when.
— When said notice is given and said election held in
accordance with the preceding section, if the req-
uisite two thirds of the voters of the county, mu-
nicipality, or division at said election vote for
bonds, then the authority to issue the bonds in ac-
cordance with paragraphs 1 and 2, section 7, Ar-
ticle 7 of the Constitution is hereby given to the
proper officers of said county, municipality, or di-
vision. Acts 1878-9, p. 40.
See §§ 6563, 6564.
As to certification and recordation, see § 2230. As to
debts other than bonded debts, see § 465.
Authority to Issue Bonds. — This section gives express au-
thority to issue bonds when the notice required by § 440
is given and the election held in accordance with § 441.
Cowart v. Waycross, 159 Ga. 589, 592, 126 S. E- 476.
County May Issue Bonds Only When Constitution and
Laws Complied with. — A county may issue bonds to be
paid for with funds derived from public taxation, and pro-
cure a judgment of the court confirming and validating the
same, only when the constitution and laws of the state
have been fully complied with. Richter v. Chatham County,
146 Ga. 218, 91 S. E. 35.
Provision for Annual Tax Must Be Made before Bonds
Sold. — After the bonds have been validated, a provision
for an annual tax must be made before the bonds can be
sold and the debt be thereby actually incurred. Woodall
v. Adel, 122 Ga. 301, 50 S. E. 102; Oliver v. Elberton, 124
Ga. 64, 52 S. E. 15.
"Two- Thirds of the Voters." The "two-thirds of the
voters" required by this section, as construed by the Su-
preme Court with the amendment of 1918 (Ga. L,. 1918, p.
99) to article 7, § 7, paragraph 1 of the State constitution
(§ 6563), "means two-thirds of the qualified voters of the
county . . . voting at said election, provided said two-
thirds so voting constitute a majority of the registered
voters." Chapman v. Sumner Consolidated School Dist.,
152 Ga. 450 (109 S. E. 129); 28 Ga. App. 152 (110 S. E. 453);
Moody v. Board. 29 Ga. App. 21, 23, 113 S. F 103; Goolsby
V. Stephens, 155 Ga. 529, 539, overruling Farmer v. Mayor,
133 Ga. 94, 95, 65 S. E. 180.
Past Indebtedness. -Two -thirds of voters can not author-
ize a bond issued for past indebtedness of a municipality.
[107]
§ 443
ELECTION ON ISSUE OF BONDS
§ 444(2)
The voters must pass on the debt to be incurred. Mayo
v. Jones, 122 Ga. 455, 50 S. F. 340.
Bonds May Be Payable in Gold or Lawful Money.— It is
lawful to make the proposed bonds "payable in gold, or
lawful money of the United States, at the option of the
holder." Heilbron v. Mayor, 96 Ga. 312, 23 S. F- 206.
§ 443. (§ 380.) Number of votes, how ascer-
tained.— In determining the question whether or
not two thirds of the qualified voters in said
county, municipality, or division voted in favor of
the issuance of said bonds, the tally-sheets of the
last general election held in said county, munici-
pality, or division shall be taken as a correct
enumeration of the qualified voters thereof. Acts
1878-9, p. 40.
Editor's Note. — The method of ascertaining votes pre-
scribed by this section was never considered exclusive, and
it seems to have been the universal holding that whenever
the legislature had provided for a registration of voters the
number of voters registering thereunder was the true test
for ascertaining whether the required two-thirds had been
obtained. See Goolsby v. Stephens, 155 Ga. 529, and cases
there cited at p. 536.
Now as the amendment in 1918 to § 6563 of the Code,
which is article 7, § 7, par. 1, of the constitution, requires
that there must be a registration to determine the vote in
all county, municipal and political divisions, it would
seem that this section is rendered nugatory, and the vote
is no longer determined by the tally sheets, but by reg-
istration. See Goolsby v. Stephens, 155 Ga. 529.
It may be well to note that in the Goolsby case there is
a strong dissenting opinion by Russel, C. J., in which he
contends that the constitutional amendment does not affect
municipalities which have no registration laws.
The law as to determining the two-thirds vote in elec-
tions held in cities of 150,000 population or more, is gov-
erned by §§ 467 (1) and (2), generally, and in the event
the election is for street improvements by § 451 (1).
For general registration law, see §§ 47 (1) et seq. For com-
plete treatment of determination of result prior to the
changes here noted, see 8 Cum. Dig. 765 ; 9 Fnc. Dig. 538.
§ 444. (§ 381.) Collection of bonds. The owners
of said bonds, when due, may, if necessary, . en-
force the collection thereof by suit in th'e proper
court. Acts 1878-9, p. 40.
Bonds in Hands of Innocent Purchasers. — Bonds issued by
a municipal corporation having lawful authority to issue
such instruments are in the hands of innocent purchas-
ers, binding, notwithstanding irregularity or fraud in the
manner in which they were placed on the market. Black
v. Cohen, 52 Ga. 621; Danielly v. Cabiniss, 52 Ga. 211.
But a promissory note given by a municipal corporation
is invalid even in the hands of a bona fide indorsee for
value before it became due and although all but one of
said notes had been paid this does not prevent the corpo-
ration from setting up the illegality of the contract in de-
fense to a suit on the note. Wadley v. Lancaster, 124
Ga. 354, 52 S. F. 335.
Same — Editor's Note. — The distinction between the cases
cited in this note is based on the fact that when the two
former were decided the constitution of 1868 was in
force and it contained nothing prohibiting a municipal cor-
poration from incurring new debts, therefore bonds or notes
issued by such corporations were binding, notwithstanding
irregularities at this time; but when latter case, Wadley
v. Lancaster. 124 Ga. 354, 52 S. F. 335, arose the consti-
tution of 1877 was in force and it contained a provision
prohibiting a municipal corporation from incurring new
debts except in a certain manner and when the notes is-
sued by such corporation were not issued in the manner
prescribed by the constitution such indebtedness was not
lawfully created.
§ 444(1). Bonds of municipalities to be issued
without referendum. — Any municipality having a
population of one hundred and fifty thousand
(150,000) or more, according to the United States
Census next preceding the date of issue of the
bonds hereinafter referred to, is hereby authorized
and empowered to incur a bonded debt or debts
for street improvements and issue and sell street
improvement bonds without the assent of two-
thirds of the qualified voters thereof at an election
[108
called thereon, but upon a two-thirds vote of the
members of its governing body in the following
manner and with the following limitations:
An ordinance shall first be duly adopted pro-
viding for the pavement or repavement of the
street or portion of street desired to be improved,
which ordinance shall be based on a petition in
writing signed by the owners of more than fifty
per cent, of the property abutting on the street
or portion of street to be paved and repaved, and
the certificate of the municipal official in charge
of the paving and repaving of streets, that said
petition is signed by the owners of more than fifty
per cent, of the property abutting on the street
or portion of street to be paved or repaved, shall
be prima facie evidence of said fact; when the
paving or repaving so provided for shall have
been completed and so reported to the governing
body of such municipality by the official in charge
of such work, an ordinance shall be duly adopted
assessing the cost of such work against the prop-
erty and property owners abutting on the street
or portion of street paved or repaved, which ordi-
nance shall show the total amount so assessed;
thereupon an ordinance directing the issue of such
bonds shall be duly adopted by a two-thirds vote
of the members of the governing body of such
municipality, which ordinance shall specify what
amount of bonds are to be issued; for what pur-
pose; what interest they are to bear; how much
principal and interest to be paid annually, and
when to be fully paid off. In event that the gov-
erning body of such municipality shall consist of
councilmen representing the different wards, and
aldermen representing the municipality at large,
who are required to act as separate and distinct
legislative bodies, and ordinances having for their
object the increase of the indebtedness of the mu-
nicipality or the expenditure of its moneys are re-
quired by its charter to receive a majority of the
votes of a quorum of each of such legislative
bodies separately cast. Such ordinance directing
the issue of such street improvement bonds shall
receive a two-thirds affirmative vote of the mem-
bers of each of such legislative bodies separately
cast, and be approved by the Mayor of such mu-
nicipality,
Such bonds shall be issued with these limita-
tions: First, the term of such bonds shall in no
case exceed ten years. Second, the amount of
each issue shall be limited to the amount assessed
by such municipality upon each improvement.
Third, these bonds shall be issued only for the
grading and paving or repaving of street or por-
tions of streets. Fourth, the interest thereon
shall not exceed six per centum per annum. Fifth,
these bonds can be issued without regard to the
amount of outstanding debts or bonds of said mu-
nicipality. Sixth, these bonds not to be issued
except in case such pavement or repavement has
been petitioned for in writing by the owners of
more than fifty per cent, of the property abutting
on the street or portion of street paved or re-
paved. Acts 1921, p. 212.
As to bonded indebtedness generally of municipal cor-
porations having a population of 150,000 or more, see §§
467 (1), (2). As to validation of street improvement bonds
in municipal corporations having 150,000 or more popula-
tion, see § 451 (1).
§ 444(2). Refunding tax. — Any municipality
which shall incur any bonded indebtedness under
§ 444(3)
BONDS, HOW VALIDATED
§ 445
the provisions of this Act shall, at or before the
time of so doing, provide for the assessment and
collection of an annual tax upon all the taxable
property within the limits of such municipality
sufficient in amount to pay the principal and in-
terest of said debt within ten (10) years from the
date of the incurring of said indebtedness. Acts
1981, p. 212.
§ 444(3). Special registration for election to in-
cur debt — Voters' book. — In all elections of the
people which may be hereafter held in any county
of this State for the purpose of authorizing the
creation by the proper county authorities of a
debt within the meaning of paragraph 1, section 7,
article 7 of the Constitution of the State of
Georgia, a special registration shall be had and
such special registration list shall be prepared in
the manner as follows, to-wit: When the proper
authorities in any county shall order and call an
election for the purpose of obtaining the assent
of two-thirds of the qualified voters of said county
to the creation by said county of a debt, bonded or
otherwise, within the meaning of paragraph 1,
section 7, article 7 of the Constitution it shall be
the duty of the tax collector of said county to
keep open for the signature of the qualified voters
of said county a special voters' book or books at
his office in said county from eight o'clock a. m.
to six o'clock p. m. each day, Sunday excepted,
for a period of sixty days, beginning sixty days
prior to the date for which said election is called.
Acts 1916, pp. 138, 139.
Editor's Note. — The Act of 1916, from which this and the
four sections immediately following were codified, was held
constitutional in Stewart v. County of Bacon, 148 Ga. 105,
95 S. E. 983. The court in that case held that the act did
not conflict with -article 7, § 7, par. 1 of the constitution.
However, it must be noted that the case cited above was
decided in May, 1918, which was prior to the amendment
of the constitutional provision referred to. Now as the
constitutional amendment in 1918 (subsequent to the de-
cided case) provides that all laws charter provisions and
ordinances heretofore passed or enacted providing special
registration for counties to pass upon issuance of bonds by
such counties shall be null and void, it would clearly ap-
pear that this act is inoperative, ineffective and void.
§ 444(4). Eligibility — Unregistered person not
to vote. — Every person who possesses the con-
stitutional requirements of an elector shall be
eligible to specialty register for participation in
said election to authorize the creation of said debt,
and that no person who fails to register specially
for said special election as herein provided for
shall be qualified to vote or shall be allowed to
vote in said election. Acts 1916, pp. 138, 139.
See editor's note to § 444 (3).
§ 444(5). List of voters for county registrars,
purging, filing copy. — Within ten days after the
closing of said special registration for said special
election, it shall be the duty of the tax collector
to file with the county registrars a true and cor-
rect list of the names on said special voters' book
or books, arranged in alphabetical order, as pro-
vided for in section 48 of the Code of 1910. With-
in fifteen days thereafter said county registrar
shall purge and prepare said special registration
list under the same laws and in the same manner
as is provided by law for purging and preparation
of the registration list for the general election and
shall furnish such perfected special registration
list to the county authorities calling said special
election, and shall also file a true and correct copy
of said perfected special registration list with the
clerk of the superior court of said county. Such
perfected and completed registration list so fur-
nished and filed shall be taken as the correct
enumeration of the voters of said county qualified
to participate in said special election. Acts 1916,
pp. 138, 139.
See editor's note to § 444 (3).
§ 444(6). Advertisement of notice. — The county
authorities calling such special election shall give
notice for the space of thirty days next preceding
the date of opening such voters' book or books in
the newspaper in said county in which the sher-
iff's advertisements are published, notifying the
qualified voters that such special registration
will be had as in this Act provided. Acts 1916,
pp. 138, 140.
See editor's note to § 444 (3).
§ 444(7). Notice, what sufficient. — In addition
to the information provided in section five here-
of, said county authorities shall also give notice
at the same time to the qualified voters of the
county that on the day named an election will be
held to determine the _ question whether bonds
shall be issued by the county. Said notice shall
specify what amount of bonds will be issued, for
what purpose, what interest they are to bear, how
much principal and interest to be paid annually,
and when to be paid off; and the notice herein
provided for shall be the only notice that shall be
necessary or required, either for the registration
of voters for said election, or for the time and
manner when such election shall be held. Acts
1916, pp. 138, 140.
See editor's note to § 444 (3).
ARTICLE 2.
Bonds, How Validated.
§ 445. Bonds of counties and municipalities, how
validated.— When any county, municipality, or
division, desiring to incur any bonded debt, as
prescribed in paragraphs 1 and 2, section 7, Arti-
cle 7 of the Constitution, shall hold an election in
accordance with the provisions of the Constitu-
tion and in accordance with the laws of the State,
controlling and regulating such elections, and the
returns of said election shall show prima facie that
such election is in favor of the issuance of said
bonds, the officer or officers of such county, mu-
nicipality, or division, charged by law with the
duty of declaring the result of the election, shall,
within six months after so declaring the result of
said election, notify the solicitor-general of the
judicial circuit in which such county, municipal-
ity, or division shall lie, in writing, of the fact that
an election for the issuance of bonds was held in
such county, municipality, or division, and that
the election was in favor of the issuance of such
bonds, and the service of said notice shall be per-
sonal upon the solicitor-general, and in the event
he is absent from the circuit, then it shall be
served in person upon the. attorney-general of the
State. When any municipality having a popula-
tion of one hundred and fifty thousand (150,000)
or more, according to the United States census
next preceding the date of issue of the bonds here-
inafter referred to, desiring to incur a bonded debt
or debts for street improvements and issue and
sell street improvement bonds without the assent
[109]
§ 445
BONDS, HOW VALIDATED
§ 446
of two-thirds of the qualified voters thereof, but
upon a two-thirds vote of the members of its gov-
erning body, as provided in Paragraph 1, Section
7, Article 7, of the Constitution of this State as
amended by amendment approved August 17,
1920, and duly ratified and proclaimed adopted by
the Governor, November 17, 1920, shall, by vote
of its governing body in accordance with the
provisions of the Constitution and laws of the
S'tate, direct the issue of such bonds, the Mayor or
Chief Executive official of such municipality,
shall, within six months after the adoption of the
ordinance evidencing the vote of the governing
body of such municipality, notify in writing the
Solicitor-General of the Judicial Circuit in which
such municipality shall lie, of the fact that an
ordinance providing for the issuance of such bonds
was duly adopted by said governing body of such
municipality, and that the necessary two-thirds
vote of said governing body was in favor of the
issuance of such bonds, and the service of said
notice shall be in person upon the Solicitor-Gen-
eral, and in event he is absent from the Circuit,
then it shall be served in person upon the Attor-
ney-General of the State. Acts 1897, p. 82. 1920,
p. 63. 1921, p. 92.
payment of bonds, see
validation, see 8 Cum.
§ 6564. For
Dig. 767; 9
See § 6563.
As to provision for
general treatment of
Enc. Dig. 540.
Editor's Note. — This section and the two sections imme-
diately following are usually cited as a unit — being desig-
nated as the validating act. Hence it is necessary that the
annotations under all three sections be examined before
the possibilities of construction will be exhausted.
This section has been amended twice since it appeared
in the Code of 1910. First, by the Act of 1920 (Acts 1920,
p. 63) which increased the time in which the solicitor gen-
eral should be notified of the election from twenty days to
six months. Second, by the Act of 1921 (Acts 1921, p. 92)
which added the last paragraph of the section as it now
reads.
Constitutionality. — This section is not unconstitutional on
the ground that it makes no provision for a trial by jury in
reference to . the matters for the investigation of which
provision is therein made. Lippitt v. Albany, 131 Ga. 629,
63 S. F- 33. Nor does it deprive citizens of property with-
out due process of law, by excluding further investigation
as to validity of the bonds after judgment of confirmation
and validation. Lippitt v. Albany, 131 Ga. 629, 63 S. E- 33.
And the section does not violate art. 7, § 7, par. 1, of
the constitution (§ 6563), as there is no merit in the con-
tention that it seeks to confer power to incur debts with-
out the consent of two-thirds of the voters, by the author-
izing of confirmation bonds which have not received the re-
quired vote. Lippitt v. Albany, 131 Ga. 629, 63 S. F- 33.
But in so far as this section and §§ 446, 447, authorize
the judge of the superior court to hear and determine the
proceeding in a county other than that so fixed by the con-
stitution, it is invalid and must yield to the constitutional
requirement on that subject. Ray v. Lavonia, 141 Ga. 626,
81 S. E. 884.
Where, the constitutionality of this and the two sections
following was not raised in lower court it will not be con-
sidered in the Supreme Court. Fdwards v. Guyton, 140
Ga. 553, 79 S. F. 195.
Purpose of Section. — Properly construed, the purpose of
this section was to provide a method by which it should
be judicially investigated and determined whether the law,
constitutional and statutory, has been complied with, so
as to declare bonds referred to therein valid before their
issuance. Lippitt v. Albany, 131 Ga. 629, 63 S. F- 33; Ep-
ping v. Columbus, 117 Ga. 263, 280, 43 S. F- 803.
Requirements Substantially Complied with Bonds Vali-
dated.— Where the record discloses the fact that all the
requirements in relation to notice and providing for an
election to determine whether bonds should be issued were
either literally or substantially complied with judgment
validating such bonds is affirmed. Wimberly v. Twiggs,
116 Ga. 50, 42 S. F. 478.
Payment. — From the language of this section it will ap-
pear that it is not incumbent upon the court to inquire into
the question as to whether provision for payment has been
made in conformity with the requirements of the constitu-
tion. The bonds are not to be issued until after they are
validated. If nothing appears as to what provision is to
be made with reference to payment of the bonds, it will be
presumed that if provision has not already been made it
will be made in accordance with the constitution and laws.
Fpping v. Columbus, 117 Ga. 263, 270, 280, 43 S. F- 803. See,
Wilkins v. Waynesboro, 116 Ga. 359, 42 S. F. 769; Oliver
v. Flberton, 124 Ga. 64, 52 S. F. 15.
But, if when the application is made to validate the is-
sue of bonds it appears to the judge, either from the plead-
ings or otherwise, that the authorities of the municipality
or county do not intend to make provision for the pay-
ment of the bonds in the manner required by the constitu-
tion, of course he should not render a judgment validating
the issue of bonds. Fpping v. Columbus, 117 Ga. 263, 270,
281, 43 S. F. 803; Wilkins v. Waynesboro, 116 Ga. 359, 42
S. F. 767; Oliver v. Elberton, 124 Ga. 64, 52 S. F- 15.
Notice Should Be Served as Required by This Section. —
The notice which this section requires to be given to the
solicitor- general by the officers charged by law with the
duty of declaring the result of an election held by any
county, municipality, or division for the purpose of incurr-
ing any bonded indebtedness as therein provided, must
be served upon the solicitor -general in the manner therein
prescribed and within the time therein specified, and should
notify him that an election for the issuance of bonds was
held in the county, municipality, or division, and that the
election was in favor of the issuance of such bonds; and
it is not necessary to the validity of such notice that a copy
of the resolution authorizing the election be incorporated
in the notice or attached thereto. Rich v. Brinson Consol.
School Dist., 28 Ga. App. 530, 112 S. F- 164.
Signature by Attorney Sufficient. — See notes to § 1551 (155).
Notice Properly Served — Bonds Should Be Validated. —
Where a notice of an election held for the purpose of in-
curring a bonded indebtedness by a political division of this
State was properly served upon the solicitor- general and
gave to that officer the necessary notice required by law,
and had attached thereto what purported to be a true and
correct copy of the resolution passed by the proper author-
ities ordering the election, and which copy was referred
to in the notice given to the solicitor-general, it was not
error, upon the hearing of an intervention to the proceed-
ing to validate the bonds authorized by the election, for
the trial judge, over the objection of the interveners, to
allow the officers giving the notice to amend it by with-
drawing or striking the attached copy of the resolution
authorizing the election and substituting in lieu thereof
another copy, alleged to be a true and aorrect copy of
the resolution authorizing the election. Rich v. Brinson
Consol. School Dist., 28 Ga. App. 530, 112 S. F- 164.
Single Proceeding May Be Had to Validate Several Se-
ries of Bonds. — Where there are three series of bonds to
be issued each for a separate purpose a single proceed-
ing may be maintained to validate them, the items being
submitted separately. Sewell v. Tallapoosa, 145 Ga. 19,
88 S. F- 577.
Refusal to Validate — Bonds May Be Valid. — Judgment
refusing to validate bonds not being based on the in-
validity of the bonds, is not the equivalent of a judg-
ment declaring them illegal. Bonds may be valid and
binding notwithstanding a refusal of the court to con-
firm and validate. Tyson v. Mcintosh County, 147 Ga.
233, 93 S. F- 407; Harrell v. Whigham, 147 Ga. 558, 94
S. F. 994.
Judgment of Validation Void No Effect on Bonds Le-
gally Issued. — Fven if the proceedings to validate bonds
were void, the sale of the bonds issued in conformity
with this section and §§ 441-444, inclusive, would not be
enjoined merely because the judgment of validation was
void. Durrence v. Statesboro, 147 Ga. 175, 93 S. F- 88;
Tyson v. Mcintosh County, 147 Ga. 233, 93 S. E. 407.
Unlawful Use of Bonds. — The fact that the city may
intend to use the proceeds of the bonds in an unlawful
manner, said bonds being voted for a lawful purpose is
not ground for refusal to validate. Gracen v. Savannah,
142 Ga. 141, 82 S. E. 453.
Reducing Amount of Bonds before Validation. — See note
to § 440.
Validation Not Collusive Because Uncontested. — Valida-
tion is not held to be collusive because uncontested for
complaining citizen has right to become party and con-
test validation. Farmer v. Thomson, 133 Ga. 94, 65 S.
E. 180.
§ 446. Duties of the attorney-general or so-
licitor-general.— Within twenty days from the
date of such service as is provided in the preced-
ing section, the solicitor-general or the attorney-
general, as the case may be, shall prepare and file
[110]
§ 446
BONDS, HOW VALIDATED
§ 447
in the office of the clerk of the superior court of
the county in which the election was held a pe-
tion, directed to the superior court of said county,
in the name of the State of Georgia and against
such county, municipality, or division, desiring to
issue bonds under such election, setting forth the
service of the notice, as provided in the preceding
section, the name of the county, municipality or
division seeking to issue said bonds, the amount
of bonds to be issued, for what purpose to be is-
sued, what interest they are to bear, how much
principal and interest to be paid annually, when
to be paid in full, and the further fact that an
election was held for the issuance of said bonds,
and that said election is prima facie in favor of the
issuance of the bonds, and shall obtain from the
judge of said court an order requiring the county,
municipality, or division, by its proper officers, to
show cause at such time and place, either in term
or at chambers, within twenty days from the filing
of the petition, as the judge of the court may di-
rect, why the bonds should not be confirmed and
validated, which petition and order shall be
served in the manner now provided by law for the
service of petitions upon counties, municipalities,
or divisions, and to such petition the officers of
such county, municipality, or division shall make
sworn answers within the time prescribed herein.
Acts 1920, p. 63.
See §§ 440, 6563, 6564.
For general treatment of validation of bonds, see 8
Cum. Dig. 767, et seq.
Editor's Note. — This section has been amended since it
appeared in the Code of 1910 by the addition of the words
"either in term or at chambers" after the words "at such
time and place." This change was effected by the Acts
of 1920, p. 63. Section 451 (1) makes this section applica-
ble to proceedings to validate street improvement bonds
issued in accordance with § 6563 as amended by amend-
ment of 1920.
Provision for Time of Hearing Directory. — The provision
of this section, which prescribes the time within which
the judge of the superior court shall fix the hearing on
the petition to validate an issue of municipal bonds, and
the time within which he shall hear and determine the
same is directory only. Spencer v. Columbus, 150 Ga. 312,
103 S. F. 464; Perkins v. Norristown, 151 Ga. 414, 107 S.
E. 42.
Provision as to Time of Filing Petition Mandatory. —
The provision in this section requiring the solicitor gen-
eral to file the petition within twenty days from date of
service upon him was not merely directory, but manda-
tory. Roff v. Calhoun, 110 Ga. 806, 808, 36 S. F- 214.
Venue Is in County in Which Bonds Are Situated. — The
venue of a statutory proceeding under this section to vali-
date municipal bonds is in the county in which the bonds
are situated. Ray v. Favonia, 141 Ga. 626, 81 S. E- 884;
Murray v. Tifton, 143 Ga. 301, 84 S. F- 967.
Fixing of Hearing in Another County of Circuit. — Un-
der the provision of this section, touching the validation
of bonds, that, on due application, the judge of the su-
perior court shall require the proper officers to show
cause, "at such time and place ... as the judge of
said court may direct, why said bonds should not be con-
firmed and validated," it was held that the fixing, by the
judge, of the place for the hearing in another county of
the judicial circuit than that where the election was held
was not beyond the terms of the act. Farmer v. Thom-
son, 133 Ga. 94, 95, 65 S. F- 180.
Hearing on Day Not Named in Notice. — Where, prior
to the hearing of a proceeding for the validation of county
bonds under the provisions of this section and §§ 446 et
seq., the required statutory publication giving notice of
the date of hearing has been duly made, "the fact that
the hearing was had before the judge on a day other than
that named in the published notice does not render the
judgment illegal, when it further appears that the case
was regularly continued by the court from the day named
in the publication to the day on which the hearing was
had." Wimberly v. County ' of Twiggs, 116 Ga. 50, 51 (42
S. F. 478); Moodv v. Board, 29 Ga. App. 21, 113 S. F.
103.
[11
Issuance of Order Prior to Filing Petition. — The pro-
visions of this section are satisfied if the notice is served
and the petition is filed and the order nisi obtained within
the several times specified, notwithstanding the issuance of
the order nisi may have preceded the filing of the peti-
tion in the office of the clerk of the superior court. Dur-
rence v. Statesboro, 147 Ga. 175, 93 S. F. 88.
By Whom Notice Given. — The petition was not subject
to demurrer because the notice to the solicitor-general was
not given by the proper officer. This notice must be given
by the officer or officers charged with declaring the result
of the election. Stephens v. School Dist., 154 Ga. 275, 114
S. E. 197.
Sufficiency of Petition — Necessity for Objection. — It is not
necessary that a list of voters and tally sheets of the elec-
tion should be set out in, or attached to the petition. Ste-
phens v. School Dist., 154 Ga. 274, 114 S. E- 197. In fact
from the case of Spencer v. Clarksville, 129 Ga. 627, 59 S.
F- 274, it would seem that the petition need not set out any
of the details relating to the required number. See also,
Davis v. Orland Con. School Dist., 152 Ga. 706, 108 S. E-
466.
This section does not require that the petition should al-
lege that the amount of the bonds is within the constitu-
tional limitation as to the debt to be incurred by a munici-
pal corporation or political division. Such matter, how-
ever, may be urged by an intervenor on the trial. If he
should urge such matter, the burden is upon him to plead
and prove it. Sewell v. Tallapoosa, 145 Ga. 19, 3.1, 88 S.
E. 577.
Misnomer of the municipality in a petition to validate
bonds under this section, does not vitiate the judgment of
confirmation, where it appears that the officers of the mu-
nicipality acknowledged service of the petition and answered
the same under oath in its true corporate name, and the
judgment of validation also sets forth the proper corpo-
rate name of the municipality. Rhodes v. Louisville, 121
Ga. 551, 49 S. F. 681.
Where the petition under this section, omitted to state how
much principal and interest was to be paid annually and when
the bonds were to be paid in full, but no objection was made
in that proceeding to the sufficiency of the petition, and at-
tached to the answer of the city as an exhibit was a copy of
the ordinance providing for the issuance of the bonds, which
showed the facts referred to above, so that it appeared from
the record that provision on that subject was made, after
judgment of validation the omission of the allegation above
mentioned from the petition of the solicitor- general will not
serve to render the entire proceeding void, or to authorize
an injunction to prevent the payment of the bonds. Thomas
v. Blakely, 141 Ga. 488, 81 S. E- 218.
No Right to File Petition after Twenty Days. — A solic-
itor-general has no authority, after the expiration of twenty
days from the date of the service upon him of the notice
provided for by § 445, relating to "the confirming and vali-
dating of" bonds, to file the petition prescribed by this
section, and such a petition, if filed too late, can not be
made the basis of any valid judicial action. Roff v. Cal-
houn, 110 Ga. 806, 36 S. E. 214.
§ 447. Trial of the case and bill of exceptions.—
within the time prescribed in the order, the judge
of said superior court shall proceed to hear and
determine all of the questions of law and of fact
in said cause, and shall render judgment thereon,
and in the event his judgment shall be in favor of
the issuance of the bonds, a judgment and order
shall be entered to that effect, and any citizen of
the State of Georgia, resident in such county, mu-
nicipality, or division, so ^QHraiW to issue said
•to
bonds, may become a p
and if dissatisfied with
confirming and valid
bonds, may except
from the judgment
tions, and upon the
such bill of exceptio
ance with the practi
bills of exceptions in
See notes to § 445.
As to jurisdiction of coufo," see § 484
of judge of superior court, S^t§ 485JL
new trial, see § 4852. As to jurr^Trial,
bill of exceptions, see § 6153. For full
dation, see 8 Cum. Dig. 767 et seq.
Editor's Note. — This section applies in all proceedings to
1]
^proceedings,
the court
the issuance of the
within twenty days
in the case: of injunc-
ajjng im^h-e Supreme Court
hall ./be?hear<| in accord-
regulating the hearing of
inat-cases.
riiiii'-inl
"•:xAs to authority
\As to motion for
see § 5422. As to
treatment of vali-
§ 447
BONDS, HOW VALIDATED
§ 451(1)
validate street improvement bonds of all municipalities
having a population of one hundred and fifty thousand upon
a two- thirds, vote of the governing body in accordance with
the constitution, § 6563 as amended by amendment of 1920.
See § 451 (1).
Burden on State to Prove Material Facts.— Where stat-
utory proceedings are brought for the purpose of validating
bonds under this section and §§ 446 and 447, and are con-
tested by citizens who become parties thereto and deny the
truth of the substantial allegations of the petition, the bur-
den is on the State to prove the material facts which are
requisite to obtain validation. Harrell v. Whigham, 141
Ga. 322, 80 S. E- 1010; Moody v. Board, 29 Ga. App. 21,
113 S. E- 103; Stephens v. School Dist., 154 Ga. 275, 114 S.
E. 197. This is applicable where the petition filed by the
solicitor -general alleges facts sufficient to warrant valida-
tion of the bonds and the answer filed by the defendant
admits the facts alleged. Harrell v. Whigham, 141 Ga.
322, 80 S. E- 1010; Jennings v. School Dist., 156 Ga. 15,
118 S. E. 560.
Petition That Judgment Be Reopened. — Where, upon a pe-
tition duly filed, praying for the validation of certain
county bonds, all the proceedings appeared on their face to
have been regular, including the notice provided for by law,
and the court rendered a judgment validating the bonds,
and, 16 days thereafter and after the court had adjourned,
certain persons filed a petition merely alleging that they
were tax-payers and asking that the order validating the
bonds be vacated or reopened, and that they be heard on
the question as to the regularity or irregularity of the elec-
tion held to authorize the bonds, the court did not err in
dismissing the petition, on the ground that it came too late.
Ballard v. Morgan County, 24 Ga. App. 371, 100 S. E. 763.
Assigning Error as to Amount. — Interveners can not for
the first time, in their bill of exceptions, successfully as-
sign error to the judgment on the ground that it did not
affirmatively appear that the proposed bond issue was within
the constitutional limitation of amount. Sewell v. Talla-
poosa, 145 Ga. 19, 88 S. E. 577.
Judgment Conforms to Pleading Where It Contains Same
Recitals. — Judgment validating bonds conformed to the
pleadings upon which based, where it contained the same
recitals as pleadings as to character and amount of bonds
raised. Sewell v. Tallapoosa, 145 Ga. 19, 88 S. E. 577.
Same — Injunction. — After the validation of certain munic-
ipal bonds, no writ of error to the judgment validating the
same having been sued out within the time prescribed by
law, it was not error for the court below to refuse to en-
join the issuance of said bonds. Edwards v. Guyton, 140
Ga. 553, 79 S. E. 195; Holton v. Camilla, 134 Ga. 560, 68
S. E. 472.
Fraud. — Where it does not appear that the county attor-
ney made any misrepresentation as to any fact or facts con-
cerning the hearing, or the postponement thereof, or waived
the filing of any objections, or promised to continue the
hearing, and it appearing from the petition that the pe-
titioners knew of the time legally set for the validation
proceeding, and the only conclusion to be drawn being that
through their laches and negligence they failed to file ob-
jections, the petition does not allege facts sufficient to show
such fraud as would warrant the setting aside of the judg-
ment. Swicord v. Grady County, 24 Ga. App. 522, 101 S.
E- 395.
§ 448. Judgment validating forever conclusive. —
In the event no bill of exceptions is filed within
the time prescribed herein, or, if filed, is affirmed
by the Supreme Court, the judgment of the su-
perior court, so confirming and validating the is-
suance of the bonds, shall be forever conclusive
upon the validity of the bonds against the county,
municipality, or division, and the validity of said
bonds shall never be called in question in any
court in this State.
See notes to the three sections immediately preceding.
See editor's note to preceding section which is applicable
to this section.
As to effect of former judgment, see § 4335. As to ef-
fect of judgment as evidence, see § 5820. As to when judg-
ment conclusive, see § 458.
Applied in Epping v. Columbus, 117 Ga. 263, 280, 43 S.
E. 803; Rountree v. Rentz, 119 Ga. 885, 47 S. E. 328; Baker
v. Cartersville, 127 Ga. 221, 56 S. E- 249; Edwards v. Guy-
ton, 140 Ga. 553, 79 S. E. 195; Wheddon v. Fletcher, 150 Ga.
39, 102 S. E- 350; Dumas v. Rydon, 151 Ga. 267, 106 S. E-
261.
§ 449. How the bonds shall be stamped.
-Bonds,
[11
when issued under the provisions of this Article,
shall have stamped or written thereon, by the
proper officers of such county, municipality, or
division issuing the same, or their agents or serv-
ants, the words: "Validated and confirmed by
judgment of the superior court," specifying also
the date when such judgment was rendered, and
the court in which it was rendered, which shall
be signed by the clerk of the superior court in
which the judgment was rendered, which entry
shall be original evidence of the fact of such
judgment and shall be received as original evi-
dence in any court in this State.
See § 459.
As to admission of bonds as evidence, see § 5798.
Editor's Note. — This section applies in all proceedings to
validate street improvement bonds of municipalities of one
hundred and fifty thousand population upon two-thirds vote
of the governing body in accordance with the constitu-
tion, § 6563 as amended by Act of 1920, see § 451 (1).
§ 450. Clerk shall give notice of the hearing. —
Prior to the hearing of said cause, the clerk of
the superior court of the county in which it is to
be heard shall publish in a newspaper, at least
twice before the hearing, a notice to the public
that on the day specified in the order providing
for the hearing of said cause the same will be
heard.
See § 459.
As to duty of clerk to save copy of notice published, see
§ 489. As to applicability to bonds of municipality with pop-
ulation of one hundred and fifty thousand, see § 451 (1).
The object of the publication is to inform citizens, whose
interests are to be affected, of the time when the case is
set to be heard. Wimberly v. Twiggs County, 116 Ga. 50,
51, 42 S. 478.
Substantial Compliance with Notice Sufficient. — A sub-
stantial compliance with the provision as to notice is suffi-
cient, and where notice specified "town of Eouisville" in-
stead of City of Louisville this was sufficient. Rhodes v.
Louisville, 121 Ga. 551, 49 S. E- 681.
By What Clerk Notice Published. — Injunction will not be
granted, where notice is published by the clerk of the court
where the municipality is situated, on the ground that the
clerk of another county where order nisi was made return-
able should have published the notice. Farmer v. Thom-
son, 133 Ga. 94, 65 S. E. 180.
Effect of Continuance. — Where it appears that the case
was regularly continued by the court from the day named
in the publication to the day on which the hearing was
had, the fact that the hearing was on a day other than that
named in the publication does not make the judgment ille-
gal. Wimberly v. Twiggs County, 116 Ga. 50, 42 S. E.
478; Oliver v. City of Elberton, 124 Ga. 64, 52 S. E- 15;
Crawley v. State, 150 Ga. 86, 102 S. E. 898.
§ 451. Costs and fee, by whom paid. — The costs
of said case shall be paid in any event by the
county, municipality, or division designing to is-
sue said bonds, and in addition to costs it shall
also pay the solicitor-general the sum of twenty-
five dollars for his entire services in such cause.
See § 328.
As to cost and fees for validation of the other bonds, see
§§ 460, 461. As to applicability to validation of bonds of
municipality with population of one hundred and fifty thou-
sand, see § 451 (1).
§ 451(1). Certain sections applicable to street
improvement bonds. — All the terms and provi-
sions contained in Sections 446, 447, 448, 449,
450, 451 and 445 as hereby amended, of the Code
of Georgia of 1910, providing for the validation of
the bonds of counties, municipalities and divisions
generally, and the method of procedure there-
under, are hereby made applicable in all proceed-
ings to validate street improvement bonds which
may be issued by any municipality having a popu-
lation of one hundred and fifty thousand (150,000)
2]
§ 451(2)
BONDS, HOW VALIDATED
§ 456
or more, according to the United States census
next preceding the date of issue of the bonds
hereinbefore referred to without the assent of
two-thirds of the qualified voters thereof at an
election called thereon, but upon a two-thirds
vote of the members of its governing body, in ac-
cordance with Paragraph 1, Section 7, Article 7,
of the' Constitution of Georgia, as amended by
amendment approved August 17, 1920, and duly
ratified and proclaimed adopted by the Governor,
November 17, 1920. Acts 1921, pp. 92, 94.
As to issue of bonds for street improvement in cities hav-
ing over 150,000 population, see §§ 444 (1) et seq. As to
issuance of bonds for other purposes than street improve-
ments, see § 467 (1) and notes thereto.
§ 451(2). Failure to file proceedings — Duty of
court. — In all cases where any county, municipal-
ity or other division of the State has heretofore
held an election for the issuance of bonds, or shall
hereafter hold such election, and where notice has
been duly served on the Solicitor-General or the
Attorney-General, as the case may be, under au-
thority of such county, municipality or other di-
vision, for the purpose of securing a judicial vali-
dation of such bonds, and where, in such cases,
there has ' been a failure on the part of such
Solicitor-General or other officer to forward within
the time limited by Section 446 of the Code, it
shall be competent for such county, municipality
or other division to represent such facts in writ-
ing to the Court, and to represent further that
such failure has been without fault on the part of
the county, municipality or other division. In
such case it shall be the duty of the Court and he
shall have power and authority to inquire into
the facts, and, upon being satisfied that such fail-
ure has not arisen from any fault or neglect on
the part of such county, municipality or other di-
vision, to pass an order authorizing and directing
such Solicitor-General or Attorney-General, as
the case may be, to proceed within ten days to file
the petition authorized by said Section 446, and
thereafter the proceedings shall be heard in the
same manner as would have been followed had
such petition been duly and promptly filed in the
first instance. Acts 1920, p. 110.
§ 451(3). Judgment validating bonds. — Where
proceedings are had as hereinbefore provided, and
result in a judgment validating said bonds, the
same shall be held and deemed to be as fully and
completely validated to all intents and purposes,
as though the proceedings had been had originally
as now provided by law, and in such event, the
judgment of validation shall be finally and com-
pletely conclusive in like manner as is now pro-
vided by Section .448 of the Code of Georgia.
Acts 1920, pp. 110, 111.
§ 452. Bonds issued under previous elections. —
Where any count}', municipality, or division has
already submitted to the qualified voters of such
county, municipality, or division the question of
incurring any bonded indebtedness at an election
called for that purpose, and such election has al-
ready been declared to have resulted in favor of
the issuance of such bonds, and said bonds have
not been issued or disposed of, then such county,
municipality, or division may proceed to issue
such bonds, and no court in this State shall have
power to inquire into the validity of said bonds
by any proceeding at law or in equity which may
[11
be brought, unless the same is interposed within
thirty days from December 6th, 1897.
The question of the constitutionality of this section was
considered but not decided in Iyippitt v. Albany, 131 Ga.
629, 63 S. E. 2i- The point raised was whether the sec-
tion contained different matter from that included in the
caption of the Act of 1897.
§ 453. Validation of certain other bonds. — The
holder of any outstanding bond, or bonds, of any
county or municipality in this State, issued subse-
quently to the adoption of the Constitution of
1877, and the validating of which is not provided
for by the foregoing sections of this Chapter, pro-
viding for validating bonds of counties and muni-
cipalities, shall have the right to have the same
validated in the manner hereinafter provided. Acts
1908, p. 72.
§ 454. Holder must give bond. — The holder of
any bond or bonds described in the preceding sec-
tion, desiring to have the same validated, shall
first enter into an obligation with sufficient se-
curity to indemnify the county or municipality
issuing the bond or bonds desired to be validated,
against all court costs, and other expenses inci-
dent to said validating proceedings, the sufficiency
of the surety on such obligation to be approved
by the executive officer or officers of such county
or municipal^.
§ 455. Petition by holder. — The holder of any
such bond, or bonds, as are described in the two
preceding sections, having given indemnity against
cost, as hereinbefore provided, may present to the
solicitor-general of the circuit in which the county
or municipality having issued such bond, or bonds,
is located, or to the attorney-general of the State
of Georgia in the event the solicitor-general is
absent from said circuit, a petition setting forth a
description of the bond, or bonds, sought to be
validated, stating the date of issue, rate of inter-
est, number and denomination of all bonds is-
sued, time and place for payment of principal and
interest, with a full copy of all resolutions and
other proceedings authorizing the issue of said
bonds, and any and all other facts showing the au-
thority of said county or municipality to issue
such bonds, and the purpose for which issued.
§ 456. Petition by solicitor-general or attorney-
general. — Within twenty days from the date on
which such petition as is provided in the preced-
ing section is presented to the solicitor-general, or
to the attorney-general of the State of Georgia, as
the case may be, such officer shall prepare and file
in the office of the clerk of the superior court of
the county issuing said bonds, or in the county in
which the municipality issuing such bonds is lo-
cated, a petition directed to the superior court of
said county, in the name of the State of Georgia,
and against such county or municipality issuing
the bonds sought to be validated, setting forth all
the facts state'd in the petition presented to him.
as provided in the preceding section, the name of
the county or municipality issuing said bonds, the
amount of bonds issued, for what purpose issued,
a full description of the bonds, and the authority
under which they were issued, and the number of
outstanding bonds, and shall obtain from the
judge of the superior court of said county an or-
der requiring said county or municipality by the
proper officer, or officers, to show cause, at such
time and place within twenty days from the filing
§ 457
DEBTS OTHER THAN A BONDED DEBT
§463
of said petition, as the judge of said court may-
direct, why said bonds described in said petition
should not be confirmed and validated; which said
petition and order shall be served in the manner
now provided by law for the service of petitions
upon counties or municipalities, and to such peti-
tion the officer, or officers, of said county or mu-
nicipality shall make sworn answer within the
time prescribed herein.
See § 446. As to how suits brought against counties, sec
§ 385.
Place of Hearing Fixed in Another County Judgment a
Nullity. — Where the judge of the superior court of the
county in which the bonds were to be issued upon a pe-
tition filed by the solicitor general of the court, as provided
by this section, fixed the place of hearing at a point in an-
other county, giving notice of the time and place of hear-
ing, the court was without jurisdiction to pass judgment
validating the bonds, and a judgment validating them was
a mere nullity. The lack of jurisdiction not having been
waived even if it could have been. Tyson v. Mcintosh
County, 147 Ga. 233, 93 S. F. 407.
§ 457. Appeal to Supreme Court. — Within the
time prescribed in said order, or such further
time as he may fix, the judge of said superior court
shall proceed to hear and determine all of the
questions of law and fact in said cause, and shall
render judgment thereon, and in the event his
judgment shall be in favor of the validating of
said bonds, a judgment and order shall be entered
to that effect, and any citizen of the State of
Georgia, resident in such county or municipality
which issued said bonds sought to be validated,
may become a party to said proceedings, and any
party thereto dissatisfied with the judgment of
said court confirming and validating said bonds,
or refusing to confirm and validate said bonds,
may except thereto within twenty days from the
date of said judgment as in the case of injunc-
tions, and upon the hearing in the Supreme Court
such bill of exceptions shall be heard in accord-
ance with the practice regulating the hearing of
bills of exceptions in criminal cases.
See § 6246.
As to jurisdiction of superior courts, see § 4849. As to
authority of judges of superior courts, see § 4850. As to
right of new trial in vacation, see § 4852. As to right to
jury trial, see § 5422. As to bills of exceptions, see §§ 6152
et seq.
§ 458. When judgment becomes conclusive.- —
In the event no bill of exceptions is filed within
the time prescribed herein, or, if filed, judgment
is affirmed by the Supreme Court, the judgment
of said superior court so confirming and validating
said bonds shall be forever conclusive upon the
validity of said bonds against the said county or
municipality, and the validity of said bonds shall
never be called in question by any court in this
State.
See § 4335.
As to effect of judgment as evidence, see § 5820.
§ 459. Proof of validation and notice. — The pro-
visions of sections 449 and 450 providing for vali-
dating the bonds of counties and municipalities
in reference to proof of validation and notice of
proceeding to validate, are hereby made applicable
in all proceedings to validate bonds under the six
preceding sections.
See §§ 449, 450.
§ 460. Costs and fees. — All the costs of said
proceedings shall be paid by the holder, or
holders, requesting the validation of such bonds,
and presenting the petition to the solicitor-gen-
eral, or the attorney-general, and in addition to
said cost, said holder, or holders, of said bonds
shall pay to the solicitor-general the sum of
twenty-five dollars for his entire services in
such cause.
§ 461. Bonds for refunding or paying off prior
issue. — Any county or municipality desiring to
validate any issue of bonds proposed to be is-
sued for the purpose of refunding or paying off
and discharging a prior issue of bonds issued by
such county or municipality, between the adop-
tion of the Constitution of 1877, and the passage
of the Act approved December 6th, 1897, may
have the same validated before issuing in the
manner hereinbefore provided, by presenting a
petition to the solicitor-general of the circuit in
which said county or municipality is located, or
to the attorney-general of the State of Georgia
when the solicitor-general is absent from his cir-
cuit, setting forth a full description of the bonds
to be issued, as well as the bonds to be paid off
by such refunding issue, with a full copy of the
resolution and all proceedings authorizing the
original issue of said bonds sought to be paid off
by the refunding issue, also resolutions and pro-
ceedings authorizing the refunding issue of
bonds. Such petition being presented to the so-
licitor-general, or the attorney-general, as the
case may be, it shall be the duty of such officer
to bring proceedings for the validation of such
issue of refunding bonds in the manner hereinbe-
fore provided, save and except that in such cases
the county or municipality seeking the validation
of such bonds shall pay all court costs, and the
fee of $25.00 to the solicitor-general. But no
bonds shall be allowed validated hereunder that
have been issued for a bonded debt, created since
the Constitution of 1877.
§ 462. Investment for trust funds. — All bonds
validated under the provisions of sections 453
to 461 shall have the same legal status, so far
as being accepted as investments for trust funds,
as is provided with reference to validated bonds
in section 3765.
See §§ 6563, 440.
ARTICLE 3.
Debts Other Than a Bonded Debt.
§ 463. Debts other than a bonded debt. —
When any county, municipality, or division
shall desire to incur any debt, within the pur-
view and meaning of paragraph 1, section 7, Ar-
ticle 7 of the Constitution of 1877, other than a
bonded debt, the election required shall be called
and held as follows, to wit: The officers charged
with levying taxes, contracting debts, etc., for
the county, municipality, or division shall give
notice for the space of thirty days next preced-
ing the day of election, in the newspaper in
which sheriff's advertisements for the county are
published, notifying the qualified voters that on
the day named an election will be held to deter-
mine the question whether the debt desired or
proposed to be incurred shall be incurred by the
county, municipality, or division. Said notice
shall specify the amount of the debt to be in-
curred, for what purposes it shall be incurred,
what amount of the debt is to be paid annually,
or at shorter periods, the terms of the contract
[114]
§ 464
INVESTMENT OF SINKING FUNDS
§ 467(3)
under which the debt is to be incurred, and the
language of the ballots to be used in the election
for or against incurring the debt. Acts 1904, p.
85.
Terms of Contract — Interest. — Notice specifying that the
rate of interest shall be "not exceeding 6 per cent, per
annum," is not a compliance with the provisions of this
section which requires "the terms of the contract under
which the debt is to be incurred" to be set forth. City of
Thomasville v. Thomasville Elec. Light, etc., Co., 122 Ga.
399, 50 S. E- 169.
Taxpayers May Enjoin Payment of Illegal Debt. — Tax-
payers of a city have such an interest in the money raised
by taxation for municipal purposes as to maintain a suit
to restrain the creation or payment of illegal debts by the
municipality. Renfroe v. Atlanta, 140 Ga. 81, 82, 78 S. E-
449; Brumby v. Board, 147 Ga. 592, 95 S. E- 7.
Under the Act of 1906 (Acts 1906, p. 846) giving the board
power to erect waterworks and to make all contracts for
the light and water supply such act did not authorize the
board to pay $15,000 to a competing company to quit oper-
ating its electric light plant in the city, where under the
contract the board obtained nothing in the way of plant,
poles, etc., and such contract can be enjoined at the in-
stance of a taxpayer. Brumby v. Board, 147 Ga. 592, 95
S. E. 7.
§ 464. Election, how held. — Said election shall
be held at all the voting or election precincts
within the limits of the county municipality, or
division, and shall be held by the same persons,
and in the same manner, under the same rules
and regulations that elections for officers of
said county, municipality, or division are held,
and the returns shall be made to the officers
calling or ordering the election, who shall, in
the presence and together with the several
managers who bring up the returns, consoli-
date said returns and declare the result. Act 1818-
9, p. 40. 1904, p. 85.
See §§ 94, 110, 440.
§ 465. When debt may be incurred. — When
said notice is given and the election held in ac-
cordance with the preceding section, if the req-
uisite two thirds of the voters of the county,
municipality, or division at said election vote
' for incurring the debt, then the authority to
incur the debt in accordance with paragraph 1,
section 7, Article 7, of the Constitution is here-
by given to the proper officers of said county,
municipality, or division.
See §§ 6563, 442, and notes thereto.
§ 466. Number of votes, how ascertained. —
In determining the question whether or not
two thirds of the qualified voters in said county,
municipality, or division voted in favor of in-
curing the debt, the same rules shall govern as
govern in determining the like question in ref-
erence to the issuing of bonds by counties, mu-
nicipalities, or divisions.
See § 443 and the editorial note thereto.
§ 467. Annual sinking fund. — Any county,
municipality, or division of this State, which
shall incur an indebtedness under the provi-
sions of this Chapter, shall at or before so do-
ing, or annually thereafter, provide, without in-
curring further debt thereby, an annual sum
sufficient in amount to pay the principal and in-
terest of said debt within thirty years from the
date of the incurring of the indebtedness.
Acts 1904, p. 85.
See § 6564.
ARTICLE 4.
Bonded Debts of Municipal Corporations with
150,000 or More Population.
§ 467(1). Authority to incur bonded debt —
Vote required. — Municipal corporations of this
State having a population of 150,000 or more,
according to the census of the United States
Government taken in the year 1910, are hereby
empowered and authorized to incur a bonded
debt or debts for the public purposes of such
municipality, the said debt or debts to be in-
curred for the same purposes and to be se-
cured in the same manner, and to be paid,
principal and interest, under the same terms
and provisions as now exist for the issuance of
bonds for such purposes, provided said issuance
is voted affirmatively at a general election held
at the same time that the election of the Mayor
and General Council of such municipalities is
held, by two-thirds of the qualified voters
thereof who may • vote at said election, said
two-thirds to constitute at least a majority of
the qualified voters of such municipality. Acts
1919, p. 260.
As to issue of street improvement bonds in cities having
150,000 or more, see §§ 444 (1) et seq. As to validation of
street improvement bonds in cities having 150,000 population
or more, see § 451 (1).
Editor's Note. — This and the following section were passed
in pursuance to the constitutional amendment of 1918, which
is § 6567 (1) of this Code. In Brown v. Atlanta, 152 Ga.
283, 109 S. E. 666, it was held that the constitutional amend-
ment referred to was not self-executing and that the en-
abling act (this section) shall not become operative until
it shall be affirmed at a general election in the manner
specified.
It appears, therefore, that this section applies only in
cities of 150,000 which have ratified the same, and until
so ratified the section is inoperative.
When ratified, as indicated by the opinion of Brown v.
Atlanta, there would seem to be no limit on the amount of
indebtedness which may be incurred.
This section is not to be confused with the Act of 1921
[§ 451 (1) of this Code] which applies to issuance of bonds
for street improvements only and which is in conformity
with § 6563 of the Constitution as amended in 1920.
§ 467(2). Purpose — Registration of voters not
required. — The purpose of this Act is to enable
municipalities, having such population, to issue
bonds within the limits of the present constitu-
tion pertaining thereto, and according to the
present regulations protecting such issuance,
but without the present constitutional provi-
sions requiring a majority of the registered
vote, which majority shall constitute two-thirds
of those voting and to substitute in lieu there-
of the foregoing provisions under which two-
thirds of the qualified voters, whether regis-
tered or not, may control the issuance of the
bonds, provided, such two-thirds constitute a
majority of the qualified voters, such result to
be ascertained in the same manner as it was as-
certained before registration was provided for.
either by statute or constitution. Acts 1919, p.
260.
See note to § 467 (1).
[11
ARTICLE 5.
Investment of Sinking Funds.
0
Section 1. Of Counties.
§ 467(3). Investment in bonds of county,
State, or United States. — The officer or officers
charged with the administration of the fiscal
§ 467(4)
INVESTMENT OF SINKING FUNDS
§ 467(9)
affairs of the several counties of this State and
with the custody and control of such funds may-
invest all sums collected under the requirements
of Paragraph 2, Article 7, Section 7 of the Con-
stitution of 1877 for the purpose of payment of
the principals of bonded indebtedness of such
counties, and which are not actually payable on
such principals within twelve months from the
date of collection thereof, in valid outstanding
bonds of such county, or some other county of
the State, which have been duly validated, or
valid outstanding bonds of the State of Georgia,
or of the United States, and to keep such funds
so invested in such bonds, with the privilege of
changing the investment from the character of
the bonds named to another from time to time
as such officer or officers charged with the ad-
ministration of the fiscal affairs of the said
county may direct, until such time before the
maturity of outstanding obligations as may be
necessary to dispose of the same in order to
meet such obligations at maturity. Acts 1924,
p. 86.
§ 467(4). Registration of bonds. — Whenever
and as soon as the sinking fund of any county
of this State shall have been invested in the
manner specified in this Act, the officer or offi-
cers of a county charged with the administra-
tion of the fiscal affairs of the county shall pro-
ceed forthwith to have the securities in which
such funds are so invested registered in the
name of the county, provided bonds by their
terms under the conditions of their issue ' are
capable of being registered in the name of the
owner. Acts 1924, pp. 86, 87.
Section 2. Of Municipal Corporations.
§ 467(5). Investment in bonds of county,
State or United States. — The officer or officers
of every municipal corporation in this State
charged with the custody of such funds be, and
they are hereby required, under the direction of
the Mayor and council of such municipal cor-
poration, or a duly constituted and authorized
committee of same, to invest, within six months
from the collection of the same, all sums col-
lected by such municipal corporation under the
requirements of Paragraph 2, Article 7, Section
7 of the Constitution of 1877, for the purpose
of payment of the principals of bonded indebt-
edness of such municipal corporation and which
are not actually payable on such principals
within twelve months from the date of collec-
tion thereof, in valid outstanding bonds of such
municipality, or of some other municipality in
this State of equal or larger size which have
been duly validated in accordance with law, or
county bonds of this State which have been duly
validated, or valid outstanding bonds of the
State of Georgia or of the United States, and to
keep such funds so invested in such bonds,
with the privilege of changing the investment
from one character of the bonds named to an-
other from time to time as the Mayor and coun-
cil may direct, until such time before the ma-
turity of outstanding obligations as may be nec-
essary to dispose of the same in order to meet
such obligations at maturity. Acts 1910, p. 100.
Loan of Sinking Fund.— If the fund is loaned to a bank
on a time certificate, by the municipal officers, such con-
[11
tract of loan is illegal and void, as contrary to this sec-
tion, and will not preclude the municipality frorii taking
steps, before the maturity of such certificate, to compel the
bank to turn over the same to the city, such bank being
the designated depository of the funds of the city, and hav-
ing knowledge that the fund so loaned is the sinking fund
of the city. Hogansville Banking Co. v. Hogansville, 156
Ga. 855, 120 S. E. 604.
§ 467(6). Investment of funds on hand. — Ev-
ery municipal corporation of this State having
on hand at the date of the approval of this Act
funds raised under the provisions of Paragraph
2, Article 7, Section 7, of the Constitution of
1877, for the payment of the principals of any
outstanding bonded indebtedness and which are
not payable on such principals within twelve
months from said date shall, within six months
after the passage of this Act, invest such funds
in valid outstanding bonds of such municipality,
or of some other municipality within this State
of equal or greater size which have been duly
validated in accordance with law, or of a county
or counties of this State so validated, or of the
State of Georgia, or of the United States, and
keep the same so invested, with the privilege of
changing the investment from time to time as in
Section one provided, until such time as it may
be necessary to dispose of the same in order to
meet the principals of such outstanding bonded
indebtedness as the same may become due.
Acts 1910, pp. 100, 101.
§ 467(7). Change of investments. — Every mu-
nicipality in this State having on hand at the
date of the passage of this Act funds raised un-
der the provisions of Paragraph 2, Article 7, Sec-
tion 7, of the Constitution of the State of Geor-
gia, and payable upon the principals of outstand-
ing bonded indebtedness, which said funds are
at the date of the passage of this Act invested in
property or securities other than those hereinbe-
fore named, shall, within twelve months from
the passage of this Act, change such investment
by disposing of such property or securities, and
shall invest the proceeds thereof in valid out- '
standing bonds of such municipality, or of some
other municipality of equal or greater size which
have been duly validated in accordance with law,
or of a county or counties of this State so vali-
dated, or of the State of Georgia, or of the
United States, and keep the same so invested,
with the privilege of changing the investment
from time to time as in Section one of this Act
provided, until such time as it may be necessary
to dispose of the same in order to meet the prin-
cipals of its outstanding bonds as the same may
become due. Acts 1910, pp. 100, 101.
§ 467(8). Registration of bonds. — Whenever
and as soon as the sinking fund of any municipal
corporation in this State shall have been invested
in municipal, State or Government bonds as re-
quired by the provisions of this Act, the officer
or officers of such municipality charged with the
custody of its funds and securities shall proceed
forthwith to have such securities in which such
funds are so invested registered in the name of
the municipality, provided such bonds by their
terms under the conditions of their issue are cap-
able of being registered in the name of the
owner. Acts 1910, pp. 100, 102.
§ 467(9). Registration in owner's name. — Ev-
ery issue of municipal bonds in this State shall
6]
§ 467(10)
SETTLING DISPUTED COUNTY LINES
§ 472
be so made that at the owner's option the same
may be registered in the owner's name, both as
to the payment of principal and interest. Acts
1910, pp. 100, 102.
§ 46)7(10). Retirement of bonds. — Whenever a
municipal corporation shall invest its sinking
fund in bonds issued by itself, such bonds shall
be by the mayor and council ordered paid off and
retired and they shall be mutilated and cancelled
and preserved as vouchers only, and shall no
longer constitute an indebtedness of the munici-
pality. Provided, that no part of the sinking
fund arising from taxes levied to pay an issue of
bonds having an earlier maturity shall he appro-
priated to pay bonds having a later maturity.
Acts 1923, p. 123.
CHAPTER 4.
Change of County Lines.
§ 468. (§ 382.) Change of county lines. — When-
ever a citizen or any number of citizens of any
county shall desire to have the boundary line of
the county of his or their residence changed,
they shall file in the office of the ordinaries of
the counties to be affected, at least ninety days
before the first day of the next term of the su-
perior court of the counties whose boundaries
are to be affected, a petition in writing, setting
forth the exact character of the change to be
made, specifying particularly the situation, direc-
tion, and existing masks and monuments, if any,
of the original line, and describing particularly
the' direction, location, and length of the pro-
posed new line, and setting forth the reasons for
such change. The person or persons applying
for such change shall also give notice of the in-
tention to apply for such change, by publishing
the same for at least thirty days next preceding
the terms of the superior court to be held in the
counties to be affected, which terms shall be
those occurring next after the filing of the peti-
tion with the ordinaries, by publishing such no-
tice in a public gazette having general circula-
tion in each of the counties to be affected by the
change, and by posting at the door of the court-
house in each of such counties, and at three pub-
lic places in every militia district adjacent to the
line to be changed, a like notice of the intention
to apply for such change, and such posting shall
be for a period at least of thirty days next pre-
ceding the terms of the superior court to be held
in the counties next after the posting of the no-
tice aforesaid. Acts 1880-1, p. 52.
See § 6596.
For complete treatment of change of boundaries, see 2
Cum. Dig. 991 et seq.
Section Not Unconstitutional. — This and the following sec-
tions of this chapter constitute a general law and are not
unconstitutional. Aultman v. Hodge, 147 Ga. 626, 95 S. E.
297.
Quantity of Land Transferred Limited by Discretion of
Officials. — Where provisions of law have been fully com-;
plied with the quantity of land that may be transferred
from one county to another by a change of county line is
limited only by the restrictions contained in law; that is
by discretion of those officials named, and by the constitu-
tional provision against removal of county site, or disso-
lution of a count}- except in the manner prescribed in §§
6597, 6598. Aultman v. Hodge, 147 Ga. 626, 95 S. E. 297.
Notice Not Required to Be Posted Throughout Length of
County Line. — The provision in this section as to the post-
ing of notice in militia districts does not require the post-
ing of notice in every district throughout the length of the
• [11
county line unless the line is to be changed throughout its
entire length. Aultman v. Hodge, 147 Ga. 626, 95 S. E- 297.
Injunction in Discretion of Judge. — On a petition to en-
join commissioners from passing on recommendation of
grand jury sanctioning change of county line the judge of
the superior court did not abuse his discretion in refusing
an interlocutory injunction on the facts of the case. Ault-
man v. Hodge* 147 Ga. 626, 627, 95 S. E- 297.
§ 469. (§ 383.) Change, how effected.— It shall
he the duty of the ordinaries of the counties
whose dividing line is sought to be changed, to
lay before the grand juries of their respective
counties, on the first day of the term of the su-
perior courts to be held next after the publication
of the notice and the filing of the petition pro-
vided for in the preceding section, the original
petition, together with all maps, plats, and other
papers that may have been filed therewith,, and
if such grand juries shall, by a two-thirds vote
of their respective bodies, approve the change
applied for, they shall so declare in their general
presentments, and this action of the grand juries
shall be certified at once by the clerks of such
superior courts to the ordinaries, board of com-
missioners of roads and revenues, or other offi-
cer having the control of county business in the
counties to be affected, who shall, within thirty
days from the date of such certification, approve
or disapprove the application, and certify their
action to the ordinaries of their respective coun-
ties. When said ordinaries shall have satisfac-
tory evidence of the concurrent approval of the
grand juries, and of the officer or officers charged
with the control of county business in the coun-
ties to be affected, they shall cause to be pub-
lished for at least thirty days, in a public gazette
having general circulation in their respective
counties, an official notice of such concurrent ap-
proval and a description of the line approved.
Acts 1880-1, pp. 52, 53.
As to constitutionality, see note to § 468.
§ 470. (§ 384.) Change effected, when.— When
all the proceedings shall have been had in the
manner prescribed ill the preceding sections, and
when the same shall have been fairly recorded
by said ordinaries on the minutes of their re-
spective courts, the new line or lines shall be
held to have been established in lieu of the origi-
nal line or lines. Acts 1880-1, p. 53.
As to constitutionality, see § 8 and note to § 468.
§ 471. (§ 385.) Costs to be paid by applicant.
— The entire costs of advertising and recording
the petition, descriptions, and all other papers
and proceedings relating to the proposed, change,
shall be paid by the person or persons applying
therefor. Acts 1880-1, p. 53.
As to constitutionality, see § 8 and note to § 46S.
CHAPTER 5.
Settling Disputed County Lines and Defining
Certain Lines.
§ 472. (§ 386.) Proceedings to settle dispute
as to county lines. — Wherever the boundary line
between two or more counties in this State shall
be in dispute, and the grand jury of either
county shall present that the same requires to
be marked out and defined, it shall be the duty
of the clerk of the superior court in the county
where such presentments were made to certify
such presentments to the Governor, and the
7]
§ 473
CHANGE OF COUNTY-SITES
§ 486
Governor shall appoint some suitable and com-
petent surveyor who shall not reside in either
county, to survey, mark out, and define the
boundary line in dispute, and return such survey
with plat to the secretary of State's office to be
recorded in a book to be kept for that purpose.
Acts 1887, p. 106.
In General. — This and the following section do not con-
template a lawsuit between the counties, they devise a
process by which the line as originally fixed by the legis-
lature in the formation of the counties shall be ascertained
and made certain. Early Count v v. Baker County, 137 Ga.
126, 128, 72 S. E- 905.
Section 480-485 Unconstitutional. — This and the following
sections provide the general law, and the Act of 1908 codi-
fied as §§ 480 to 485 is a special law in contravention of
art. 1, § 4, of the constitution. Wilkinson County v. Twiggs
County, 150 Ga. 583, 104 S. E. 418.
Line Located Contrary to Prior Judgment Dees Not Nul-
lify Judgment. — Where the public authorities in locating line
under this and the following sections located the line so
that it included land between lines contended for by par-
ties to the litigation in which a judgment had been ren-
dered, this did not nullify the prior judgment fixing the
boundary line between the parties. Caverly v. Stovall,
143 Ga. 705, 85 S. E- 844.
Mandamus will issue to compel ordinary to comply with
the Act of 1879. Dickson v. Hill. 75 Ga. 369.
§ 473. Surveyor to furnish copies of survey
and plat. — The surveyor appointed by the Gov-
ernor to survey, mark out, and define the bound-
ary line in dispute shall furnish the ordinaries
or chairmen of the board of county commission-
ers of the respective counties with a copy of the
survey and plat made and returned by him to
the secretary of State, and at the same time that
such survey and plat is made and returned to the
secretary of State. Acts 1899, p. 24.
Constitutionality. — This section and §§ 474, 475 are not
violative of the constitution, art. 1, § 1, par. 23, as an
attempt to confer judicial power upon the secretary of
state. Early County v. Baker County, 137 Ga. 126, 72 S.
E. 905, affirmed 10 Ga. App. 305, 73 S. E. 352.
§ 474. Survey with plat filed, but not to be
recorded. — The survey with plat, made and re-
turned to the secretary of State, shall be filed,
but not recorded for the space of thirty days
from the date of its reception in his office, and
the entry of filing made thereon, for the purpose
of allowing the authorities of either county dis-
satisfied therewith to file a protest or exceptions
thereto within that time.
As to constitutionality of this section, see note to the
section immediately preceding.
§ 475. Secretary of State, duties of. — In case
such protest or exceptions is filed in the secre-
tary of State's office within the thirty days, it
shall be the duty of the secretary of State to give
ten days' written notice through the mail to the
ordinaries or chairmen of the board of county
commissioners of the respective counties, of the
time when he will hear the same at his office,
and upon hearing the contest he shall determine
from the law and evidence the true boundary
line in dispute between the respective counties.
As to duties of secretary of state in this connection,
see § 214. As to constitutionality of this section, see note
to § 473.
§ 476. Survey and plat, when recorded. — Upon
such decision being made by the secretary of
State, or in case no protest or exceptions are filed
within the thirty days aforesaid, he shall cause
the survey and plat to be recorded in a book to
be kept for that purpose, whereupon the same
[11
shall be final and conclusive as to the boundary
line in dispute.
§ 477. (§ 388.) Compensation of surveyor. —
The surveyor shall receive as compensation the
sum of ten dollars per day while actually en-
gaged in making the survey; he shall not be al-
lowed more than five dollars per day for the pay-
ing of chain-carriers, flag-bearers, and other la-
borers necessary to clearly mark out and define
such line. Acts 1887, p. 106.
See § 485.
§ 478. (§ 389.) Paid by each county.— The
fees and expenses allowed in the preceding sec-
tion shall be divided equally and chargeable to
the counties interested in the establishment of
such line, upon the affidavit of the surveyor.
Acts 1887, p. 106.
When County Not Liable for Surveyor's Expenses. —
Where suit was brought by a surveyor, who was appointed
by the governor to run a disputed line between two coun-
ties under this section and §§ 473 et seq., to recover from
one of such counties one-half of the charge, there was no
error in dismissing the suit on general demurrer because
there was no valid law authorizing a county to levy taxes
to meet such a claim, and a county is not liable for suit
thereon. Smith v. Baker County, 142 Ga. 168, 82 S. E-
557; Robert v. Wilkinson County, 137 Ga. 601, 73 S. E.
838.
§ 479. (§ 390.) Notice of survey. — Before the
surveyor shall proceed to make the survey, he
shall by mail or personally give the authorities
having charge of the revenues of the counties at
least ten days' notice of the time and place in-
tended to commence the survey. Acts 1887, p.
106.
See § 484.
§§ 480-485. Unconstitutional: see Wilkinson
County v. Twiggs County, 150 Ga. 583, 104 S. E.
418.
See notes to § 472.
CHAPTER 6.
Change of County-Sites; Courts, Where Held;
Offices, Where Kept.
§ 486. (§ 391.) Application for change, how
made. — Whenever two fifths of the electors
qualified to vote for members of the General
Assembly (as shown by the registration list last
made out) of any county in this State shall peti-
tion the ordinary for the removal or change of
the county-site of said county, said ordinary
shall at once grant an order directing an elec-
tion to be held at the various election precincts
in said county, not less than forty, nor more
than sixty days thereafter, notice of which elec-
tion shall be published weekly for four weeks,
in the newspaper in which the sheriff publishes
his legal notices, previous to the day of said
election; all persons qualified to vote for mem-
bers of the General Assembly are qualified to
vote at said election: Provided, that elections
under this section shall not occur oftener than
once in five years. Acts 1878-9, p. 44; 1887, p.
39; Acts 1911, p. 54.
See § 6597.
For full treatment of this subject, see 4 Cum. Dig. 306;
3 Enc. Dig. 762.
Editor's Note.— This section has been amended since it
appeared in the Code of 1910 by Act of 1911 (Acts 1911, p.
54). As the section formerly read the ordinary would
grant an order for the election whenever two- fifths of the
poll -taxpayers (as shown by the tax receivers digest last
M
§ 486
CHANGE OF COUNTY-SITES
§ 489
made out) would petition. Now, however, the require-
ment is two- fifths of the electors qualified to vote for
members of the general assembly (as shown by registra-
tion list last made out).
Section Not Unconstitutional. — This and the three fol-
lowing sections do not fall because of conflict with the
constitution as to the number of votes required to re-
move or change the county site. The sole purpose of
these sections was to provide machinery to carry out the
constitutional provision relative to a change of county
sites by providing an election by striking out the require-
ments as to the number of votes, which was already fixed
by the constitution, these sections remain complete in
themselves and capable of being carried out in accordance
with the legislative intent. Lee v. Tucker, 130 Ga. 43, 60
S. E. 164. As to conflict with constitution as to number
of votes, see note to § 489.
Act for Removal of County Seat Does Not Impair Ob-
ligation of Contract. — The act for the removal of the county
seat does not impair the obligation of contract. In such
matters one legislature had not the right to bind all sub-
sequent legislatures. Hamrick v. Rouse, 17 Ga. 56.
Direction of the petition to the "ordinary" instead of the
"court of ordinary" will not render it void. Vornberg v.
Dunn, 143 Ga. Ill, 84 S. E- 370.
Duty of Ordinary. — If, in order to find that the petition
contains the requisite two- fifths, it is necessary for the
ordinary to act upon extraneous evidence, explaining that
names on the petition and the digest list, though different,
in fact refer to the same persons, and that certain names
on the digest list are of deceased persons and persons re-
moved from the county, then there is no absolute duty
to call the election. And after refusal by the ordinary
mandamus will not lie to compel him to act. Barrett v.
Ashmore, 137 Ga. 545, 73 • S. E. 825. While this case was
decided prior to the change indicated in the editor's note
above, it would seem to apply to evidence of discrepancies
between the petition and the registration list as well as
to differences between the petition and the receivers di-
gest.— Ed. Note.
Under the provisions of this section the power to call
an election to determine whether in a given county there
shall be a change of the location of the county- site is
vested in the ordinary and even if the General Assembly
had power in a given case to so change this general law
as to vest this power in another official, the act approved
December 8, 1886, creating a board of commissioners of
roads and revenues for the county of DeKalb, neither
vested nor sought to vest such power in the board of com-
missioners created by it. Wells v. Ragsdale, 102 Ga. 53,
29 S." E. 165.
Calling Election Prima Facie Proof of Proper Petition.
—The calling of the election by the "ordinary," deter-
mined at least prima facie that the petitioners were of the
class and where of a sufficient number as required by the
statute for the purpose of calling an election at which the
question of the removal of the county-site to a named
town within the countv should be voted upon. Vornberg
v. Dunn, 143 Ga. Ill, 84 S. E. 370.
Order Shall Not Specify Particular Place of Removal. —
The petition for the election should be for an election for
the removal of the county -site, and the order calling the
election should show that it is one for the removal of the
actual county-site, without specifying a particular place
to which it shall be removed, so as to leave to the quali-
fied voters free choice between the place where the county -
site is actually located and any other place in the county.
Cheney v. Ragen, 151 Ga. 735, 108 S. E- 30.
Effect of Transfer of District.— See Lee v. Tucker, 130
Ga. 43, 60 S. E- 164.
Provision as to Five Year Period Not Binding on Sub-
sequent Legislature.— The provision in this section relat-
ing to the removal of a county seat not oftener than once
every five years, is not binding on subsequent legislature
and a subsequent legislature would be authorized under
the constitution to pass an act removing a county site,
although the election upon which the act was based was
held within less than five years from a previous election
held for that purpose. Orr v. Tames, 159 Ga. 237, 125 S.
E. 468.
§ 487. (§ 302.) Election, how conducted —
Said election shall be held and conducted, and
returns made thereof, as is provided by law for
members of the General Assembly. Acts 1878-9,
p. 44.
See § 76.
As to constitutionality of section, see note to section
immediately preceding.
Where Polls Opened. — To the validity of an election it
[ H9 ]
is not indispensable that the polls should be opened at
each of the polling places in the county. Wells v. Rags-
dale, 102 Ga. 53, 29 S. E- 165.
§ 488. (§ 383.) Indorsement on ballots. — At
said election all voters in favor of removal, and
to what place, shall indorse on their ballots
"For removal," and those who are opposed to
removal shall indorse on their ballots "Against
removal," and if two thirds of the votes cast at
said election are in favor of removal to any one
particular place, the General Assembly next con-
vening after said election may provide for the
removal of said county-site by appropriate legis-
lation. Acts 1878-9, p. 44.
As to constitutionality of this section, see note to §
486.
Voter Must Designate Place Preferred. — It is necessary
not only that the voter voting for the removal of the
county site, should state upon his ballot "for removal,"
but also that he should designate thereon the particular
place to which he desires the county seat removed. Wells
v. Ragsdale, 102 Ga. 53, 29 S. E- 165; Cheney v. Ragan,
151 Ga. 735, 108 S. E- 30.
In Cheney v. Ragan, 151 Ga. 735, 108 S- E. 30, the court
said: "by transposing the expression 'and to what place,'
so that it shall follow the clause containing the words
'For removal,' the express declaration of the statute is
made plain, and lays down the rule that the voters in
favor of the removal must indorse on their ballots 'For
removal,' and 'to what place' the removal shall be made."
§ 48®. (§ 394.) Evidence of election.— The
certificate of the secretary of State, showing that
said election was held, and that two thirds of
the qualified voters of said county (as indicated
by the tax digest) voted at said election in favor
of "removal," shall be sufficient evidence of the
holding of said election and the number of votes
cast. Acts 1887-9, p. 44.
Editor's Note — Constitutionality. — According to the pro-
visions of par. 4, § 1, art. 11 of the constitution (§ 6597),
it is requisite that two-thirds of the qualified voters of
a county, who may have voted at an election held for that
purpose, should vote in favor of the removal of a county
site in order to authorize such removal. This section pro-
vides that the assent of two-thirds of the qualified voters
of the county shall be necessary to authorize such re-
moval. As this section imposes upon the right and power
of removal conditions other than those expressed in the
constitutional provision above mentioned, and require a
greater number of votes in order to authorize such re-
moval, the section is to that extent unconstitutional and
void. See Wells v. Ragsdale, 102 Ga. 53, 29 S. E- 165.
But this partial invalidity does not affect the rest of the
act. See note to § 486.
Legislature Not Confined to Secretary's Certificate. —
The legislature is not precluded from ascertaining by other
appropriate means the facts concerning the election and
the number of votes cast. Lee v. Tucker, 130 Ga. 43, 60
S. E- 164; Cutcher v. Crawford, 105 Ga. 180, 181, 31 S. E-
139; Bachlott v. Buie, 158 Ga. 705, 124 S. E. 339.
An act of the General Assembly, which removes a county -
site, is not unconstitutional and void because it was passed
contrary to the finding of the Secretary of State. Bachlott
v. Buie, 158 Ga. 70S, 707, 124 S. E. 337, citing Cutcher v.
Crawford, 105 Ga. 180, 31 S. E- 130; Lee v. Tucker, 130
Ga. 43, 60 S. E. 164; Vornberg v. Dunn, 143 Ga. Ill, 84
S. E. 370.
Copy of Election Returns Not Admissible in Evidence. —
A certified copy from the office of the Secretary of State
of the consolidated return of an election held in a given
county upon the question of removing the county -site thereof,
is not admissible in evidence for the purpose of showing
that the general assembly, in acting upon a bill provid-
ing for such removal, did not have before it legal evi-
dence showing that such an election had been held and
that two- thirds of the qualified voters thereat voted in
favor of a removal of the county -site to a particular place.
Cutcher v. Crawford. 105 Ga. 180, 31 S. E- 139.
Injunction When Legislature Has Not Considered Re-
sult. — An injunction will issue restraining the ordinary
from erecting a new court house at the site of the old
one after an election has been had to change the site, if
the legislature had not considered the result. Wells v.
Ragsdale, 102 Ga. 53, 29 S. E. 165.
Admissions in Pleadings Binding. — An admission made
§ 490
CHANGE OF COUNTY-SITES
§ 501
in the pleadings that certain of the voters voting at such
election voted in favor of the removal of the county -site
to a particular place, so long as it stands as part of the
pleading, is binding upon party making it. Wells v.
Ragsdale, 102 Ga. 53, 29 S. E. 165.
§ 490. The election may be contested. — The
election for the removal of the county-site of
any county may be contested, and the following
shall be the proceedings in such contest. Acts
1897, p. 87.
See §§ 121-126.
§ 491. Who may commence or defend a con-
test.— Not less than seven freeholders voting at
such election shall commence a contest, and any
person voting at such election may defend such
contest.
§ 492. Notice of intention to contest. — The
contestants shall give written notice to the sec-
retary of State of an intention to contest, and
upon receipt of such notice said secretary shall
withhold certifying the result of the election un-
til the contest is decided, or until the time here-
inafter prescribed shall have elapsed without the
filing of such contest. In all cases the secretary
shall withhold his certificate of the results of the
election ten days after the election shall have
been held.
§ 493. Notice, its contents and how served. —
No contest shall be had unless the same be in-
stituted by posting a written notice at the court-
house door and serving the ordinary personally,
or by leaving such notice at his most notorious
place of abode, within five days after the day
upon which the election is held, which notice
must be signed by such contestants in person or
by their attorney at law; but no proceedings to
take testimony, as hereinafter provided, shall be-
gin until at least five days after the posting of
such notice, and the notice shall state the
grounds of contest, the time and place where the
contestants intend to take testimony, and the
judicial officer before whom the testimony will
be taken; provided, that for providential cause
or other sufficient reason any other judicial offi-
cer than that named in the notice, qualified to
act, may preside at the taking of such testimony,
the cause of such change being made to appear
by affidavit of one of the contestants, and to be
made a part of the record of said case. The no-
tice may be served upon the ordinary by the
sheriff, his deputy, or a constable of the county
where the contest is pending.
§ 494. What officer may preside and his pow-
ers.— Any judicial officer of the county where
the testimony is taken may preside and preserve
order, ^ swear witnesses, and see that the testi-
mony is fairly and impartially taken and reduced
to writing. Said officer shall have the power to
subpoena witnesses and compel their attendance
if in this State, issue subpoenas duces tecum, and
compel the production of books and papers; to
issue commission to take testimony; to punish
persons for contempt by fine or imprisonment,
and to adjourn from day to day.
See § 121, par. 3.
§ 495. Any citizen may appear and resist. —
Any citizen of the county in which the election
was held, who voted in said election, shall have
the right to appear and resist the proceedings to
contest: Provided, that where more than one
person appears and resists such contest, they
shall act jointly and not severally in making de-
fense to said contest.
§ 496. Practice on the trial. — Either party may
appear in person or by attorney, or both, and
examine and cross-examine witnesses and have
certified all legal exceptions to the admissibility
of testimony submitted by the opposite party,
which exceptions shall be passed upon by the
court finally determining the contest.
§ 497. Time for taking testimony. — All testi-
mony submitted on the part of the contestants
shall be taken within forty days from the day
of the election contested. The contestees, or
those resisting the proceedings to contest, shall
be allowed fifteen days after the closing of con-
testants' testimony to submit and take testimony
in rebuttal, or on cross-grounds. The contest-
ants shall have five days after the close of the
contestees' evidence to introduce evidence in re-
buttal.
§ 498. Cross-grounds of contest may be filed.
— The contestee, or person resisting contest pro-
ceedings, may file cross-grounds of contest, in
which case he shall give like notice as is re-
quired to be given by the contestant, and the
testimony on such cross-grounds of contest shall
be taken after the close of contestants' testimony,
and within fifteen days thereafter, upon same
notice and in the same manner as is herein pre-
scribed for the taking of testimony for the con-
testants, and certified by the presiding officer as
such.
§ 499. How suspected ballots may be exam-
ined.— Section 122, specifying the method of ob-
taining and examining suspected ballots, is ap-
plicable to contests arising under and by virtue
of this Chapter.
See §§ 82, par. 12, 122.
§ 500. Costs and fees.— The fee for serving
the notice of contest shall be $2.00 to be paid by
the contestant. The judicial officer presiding
shall be allowed $2.00 per day for his services,
and the clerk who takes down the testimony
$2.00 per day for his services, which, with the
cost of service of notice and subpoenas herein
provided for, may be enforced and collected by
execution issued by the judicial officer presiding
in said contest against the party at whose in-
stance the testimony is taken or subpoenas is-
sued.
§ 501. Subsequent proceedings. — All papers
and proceedings, or copies of them, duly certi-
fied by the presiding officer, must be trans-
mitted, within ten days after the closing of the
testimony so taken, to the secretary of State,
who shall hear and determine the same, after
giving reasonable notice to contestants and con-
testees, or parties resisting such contest, or their
counsel, of the time and place of hearing, and
he shall enter upon his finding in writing and
consider said contest proceedings and his judg-
ment thereon in connection with the returns of
said election, and certify by written certificate
the number of legal votes properly and legally
[ 120 ]
§ 502
COUNTY REVENUE
§ 504
cast at said election for removal, and to what
place, and the number of legal votes properly
and legally cast against removal. The secretary
of State shall keep on file and preserve all the
papers in such contested cases, and transmit the
same to the General Assembly when required.
As to consolidation of surveyor general and Secretary
of State, see § 210.
Section Not Unconstitutional. — The terms of this sec-
tion do not confer on the Secretary of State the power
to perform "duties" or to exercise "functions" belonging
to the judicial department in the sense in which the words
just quoted are used in the constitutional provision (par.
23, § 1, art. 1); but the effect of the act as to vest in the
secretary the duty of having and passing upon the ques-
tion raised in such a contest; and thus, being a duty
which pertains largely to matters of a political nature, is
one properly exercisable by an executive officer of the gov-
ernment. Bowen v. Clifton, 105 Ga. 459, 460, 31 S. E. 147;
Early County v. Baker County, 137 Ga. 126, 129, 72 S.
E. 905; Bachlott v. Buie, 158 Ga. 705, 124 S. E. 339; Cle-
ments v. Bostwick, 158 Ga. 906, 124 S. E. 719; Johnson
v. Jackson, 99 Ga. 389, 27 S. E. 734.
Legislature Not Concluded by Finding of Secretary of
State. — A provision in a general act that the certificate of
a public officer "shall be sufficient evidence" of the ex-
istence of facts prerequisite to the legislation, does not
necessarily preclude the legislature from ascertaining by
other appropriate means the existence of such facts. Lee
v. Tucker, 130 Ga. 43, 60 S. E. 164; Bachlott v. Buie, 158
Ga. 705, 124 S. E. 339.
Act of Legislature Conclusively Determining Election. —
Where the result of the election has been declared by the
ordinary, and an appeal is made to the Secretary of State,
who certifies his findings to the legislature, and they en-
act the removal of the county seat he had in accordance
with the findings of the secretary, and the preamble of
the act recites that two- thirds of the legal voters of the
county have voted in favor of such removal, the enrolled
act of the legislature reciting the facts necessary to au-
thorize the removal, will be held to have conclusively de-
termined that the election resulted in two-thirds of the
legal voters of the county favoring removal. Vornberg
v. Dunn, 143 Ga. Ill, 84 S. E- 370.
§ 502. Courts, where to be held. — Whenever
a county-site shall be removed as provided by
law, all the courts of this State which are re-
quired by law to be held at the county-sites of
their respective counties, by proper orders made
by the judges thereof, either at chambers or in
regular session, which order shall be entered on
the minutes of such court, shall be held in the
old buildings at the former county-site until the
new buildings at the county-site are ready for
occupancy, and all the proceedings of any of
such courts, so held, shall be legal. Acts 1905,
p. 104.
See § 4839.
As to duty of clerk to keep records at county-site, see
§ 4891. As to ordinaries' offices, see § 4789.
Under this section the city court of Arlington had ju-
risdiction to sit for the trial of this case in the city of
Morgan, the former county -site of Calhoun county and
former place of holding the city court of Morgan the
name of which court has been changed to that of city
court of Arlington (Ga. L. 1923, pp. 137, 217). Jackson v.
State, 31 Ga. App. 188, 120 S. E. 129.
§ 503. Offices, where to be kept. — The au-
thorities having charge of county affairs in any
county affected as mentioned in the preceding
section, shall provide by an order entered on
their minutes that the county officers of such
county shall have and keep their offices in such
buildings at either the old or new county-site
as, in the judgment of such county authorities,
may be best until the new buildings are ready |
for occupancy.
As to coiirt house rooms, see § 401.
CHAPTER 7.
County Revenue.
ARTICLE 1.
From Taxation.
SECTION 1.
Special and Extra Tax.
§ 504. (§ 395.) Extra tax, how levied.— The ordi-
naries of the several counties have the power to
levy an extra tax sufficient to carry into effect
sections 399 and 400, without a recommendation
by the grand jury, whenever the necessities arise.
As to how tax for county purposes is levied, see § 839.
As to the levy, see 10 Cum. Dig. 839.
Grant of Specific Powers. — This section and §§ 396, 399.
400, 504, 4796 and 4798 are a grant of specific powers and
no powers are given except those specifically granted.
Dent v. Cook, 45 Ga. 324, 325.
Existing General Laws Relative to County Taxes. —
This section and §§ 506, 507, 508, 510, 512, 513, 696, and
412 are existing general laws of this state prescribing the
rate of taxation which the taxing authorities of counties
are allowed to levy and collect for county purposes. Rey-
nolds v. Hall, 154 Ga. 623, 114 S. E. 891.
Tax for Unusual and Extra Purpose. — The tax set out in
this section is extra from the limitations for regular cur-
rent county expenses, and is for an unusual and extra pur-
pose. Johnson v. Pinson, 127 Ga. 144, 148, 56 S. E- 238.
Power in Dscretion of Ordinary. — The power set out in
this section is within the discretion of the ordinary sub-
ject to the provisions of § 505. Waller v. Perkins, 52 Ga.
233, 234.
Power to Tax Not Limited by Constitution. — The limita-
tion placed by the constitution (art. 7, § 7, par. 1) upon
the power of counties of this state to incur debts does not
operate in any way as a limitation upon the taxing power of
such counties. Commissioners v. Porter Mfg. Co., 103 Ga.
613, 30 S. E. 547.
Right to Levy Tax for Public Buildings. — It was held
under this section in reference to the duty of providing the
county with public buildings whenever in the judgment of
the county authorities public buildings are needed or should
be repaired, the right to levy a tax sufficient to carry into
effect such purpose is unlimited as to amount, and requires
no recommendation by the grand jury. Commissioners v.
Porter Mfg. Co., 103 Ga. 613, 617,' 30 S. E. 547.
Tax Not Collectible from Residents Forming Part of New
County. — An extra or unusual tax assessed after the pas-
sage of the act laying out a new county, and two days be-
fore the election of its county officers at the time fixed in
such act, could not be collected from persons whose resi-
dences and property were included in the portion of the
old county cut off and forming part of the new county.
Pope v. Matthews, 125 Ga. 341, 54 S. E- 152.
Proceeds of Tax to Be Used in Unauthorized Contract.—
County commissioners may, under this section, levy an
extra tax for having a court-house erected, and while they
should be restrained from using the proceeds of such tax-
ation in carrying out an unauthorized contract entered into
by them, there should be no interference with the collec-
tion of the tax for the purpose of having a court-house
built. Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63.
No recommendation of the grand jury is required under
this section to authorize the ordinary to levy a tax for
the purpose of building and repairing buildings. Sullivan
v. Yow, 125 Ga. 326, 327, 54 S. E- 173.
Duty of Ordinary to State Object and Purpose of Tax. —
When the extra tax mentioned in this section is levied for
any of the purposes specified in §§ 399 and 400, the order
of the ordinary by virtue of this section and § 514, should
clearly and distinctly state the object and purpose for which
it is levied. Barlow v. Ordinary, 47 Ga. 639.
Separate Order Not Necessary. — This section does not re-
quire that the extra tax should be levied by separate or-
der. Johnson v. Pinson, 127 Ga. 144, 148, 56 S. E. 238.
Result Where Levy Was Embraced in Order Assessing
County Taxes. — The fact that in making the levy of the
extra tax as provided in this section, the county authori-
ties embraced said levy in an order assessing county taxes
under § 513, did not render the levy of the said extra tax
illegal, the same being embodied in a separate and distinct
portion and paragraph of said order, substantially complete
in itself. Johnson v. Pinson. 127 Ga. 144. 56 S. E. 238.
Power of County Commissioners of Chatham County. —
[ 121 ]
§ 505
SPECIAL AND EXTRA TAX
§ 507
The county commissioners of Chatham county are clothed
by local act 1873, p. 236, with the powers that formerly ap-
pertained to the office of ordinary under this section. Ba-
ton v. Walker, 77 Ga. 336.
§ 505. (§ 396.) On failure to levy an extra tax. —
If such ordinaries fail to comply with the require-
ment of said sections, or to levy the tax, or levy
an exorbitant tax, or levy one when unnecessary,
their conduct may be reviewed by the judge of
the superior court, by mandamus or injunction, as
the nature of the case may require, at the instance
of any taxpayer of the county.
As to remedy of person for levy or distress for taxes,
see § 1163. As to the levy, see 10 Cum. Dig. 839. As to
the discretion in levying, see 12 Enc. Dig. 80.
Discretion of Ordinary Limited by Section. — It is very
plain from §§ 399 and 400 that the ordinary acts in his
discretion, subject only to the provisions of this section.
Waller v. Perkins, 52 Ga. 233, 237.
How Reviewing Power Exercised.- County commissioners
have a broad discretion in passing upon the necessity of
erecting suitable buildings for county purposes and select-
ing an appropriate site therefor; and the reviewing power
of the judge of the superior court allowed by this section
should be exercised with caution, and no interference had
unless it be manifest that the county authorities are abus-
ing the discretion with which they are vested, or that the
tax which they propose to levy to meet the cost of con-
struction is exorbitant and will therefore impose an un-
authorized hardship upon the taxpayer. Anderson v. New-
ton, 123 Ga. 512, 51 S. E- 508; Commissioners v. Porter
Mfg. Co., 103 Ga. 613, 617, 30 S. E. 547.
Defense That Taxpayer Is Also Subject to Municipal
Taxation. — That the taxpayer may be also subject to mu-
nicipal taxation affords no reason for enjoining the col-
lection of a county tax which is not itself exorbitant, inas-
much as this section does not contemplate that the needs
of the county are not to be suffered to go unsatisfied be-
cause of any independent burden upon the taxpayer which
he assumes by becoming a resident of a town or city. An-
derson v. Newton, 123 Ga. 512, 51 S. E- 508.
Chatham Commissioners. — By virtue of this section the
superior court may review the conduct of the County Com-
missioners of Chatham in the same manner as an ordi-
nary. Bacon v. Walker, 77 Ga. 336.
§ 506. (§ 397.) Tax for support of paupers.— The
county authorities who are charged with the con-
trol of the finances of their county are authorized
to levy a tax for the support of the paupers of
their county, which shall not exceed twenty-five
per cent, upon the amount of the State tax for the
year such pauper tax is levied. Acts 1880-1, p. 49.
See § 504 and notes thereto.
As to limitation on the taxing power of counties, see §
6562. As to tax for support of paupers, see 10 Enc. Dig.
258.
There is nothing in the Act of 1880-1, p. 49, now em-
braced in this section, which makes the powers conferred
dependent upon the recommendation of the grand jury, and
the language of the act indicates that they were not to be
so dependent. Sullivan v. Yow, 125 Ga. 326, 327, 54 S. E-
173.
§ 507. (§ 398.) Tax not sufficient.— When debts
have accumulated against the county, so that one
hundred per cent, on the State tax, or the amount
specially allowed by local law, cannot pay the cur-
rent expenses of the county and the debt in one
year, they shall be paid off as rapidly as possible,
at least twenty-five per cent, even^ year.
See §§ 504, 508, 513 and notes thereto.
As to taxation to pay debt under special act, see 12 Enc.
Dig. 87.
Editor's Note. — As this section and § 508 are constantly
construed together it would seem to be appropriate to here
set out a brief resume of the two sections as so construed
by the courts. This section authorizes a tax for "current
expenses" and for paying off debts. Since current expenses
are included in the term "county purposes" the taxes au-
thorized under the two sections may be for the same pur-
pose. They are different taxes, however, and there may be
a levy under each section of the full amount allowed thereby
regardless of whether there has been a levy under the other.
[12
On account of their position and the phraseology of §
508 it might be presumed that the tax under this section
is the primary tax to which the tax under § 508 is sub-
ordinate. The sections are independent. The regular tax
for county purposes is to be levied under § 508 on recom-
mendation of the grand jury, and must not exceed fifty
per cent of the state tax. Under this section the tax is a
special tax, which requires no recommendation, and may
equal the amount of the state tax.
It must be noted that this section authorizes a tax only
by implication, and not by express language. Most of the
following cases are authority for the statements here made.
History. — The codifiers of the Code of 1895 took this sec-
tion with reference to accumulated debts from the position
which it had occupied since the adoption of the Code of
1863, and placed it along with sections touching special and
extra taxes, in advance of § 508 authorizing the ordinaries
to raise a tax for county purposes, "over and above the tax
they are hereinbefore empowered to levy, not exceeding
fifty per cent, upon the amount of the State tax for the
year it is levied," upon recommendation of the grand jury;
and in that position it was adopted in the Code of 1895 and
that of 1910. Perhaps the reason for the transposition arose
from the radical change made by the constitution of 1877
in regard to the incurring of indebtedness by counties and
municipalities. Sheffield v. Chancy, 138 Ga. 677, 684, 75 S.
E. 1112.
Constitutionality. — This section and § 508 are not obnox-
ious to art. 7, § 7, par. 1, of the constitution of this State
(§ 6563). Southern R. Co. v. Wright, 154 Ga. 334, 114 S.
E. 359.
Nature of Tax. — The tax authorized by this section is an
extra or special tax, and is in addition to the tax which
the county can levy for county purposes under § 508. Cen-
tral, etc., R. Co. v. Wright, 156 Ga. 13, 15, 118 fc>. E- 709.
The intention of this section and §§ 513 and 514 is that
the county taxes shall be assessed specifically for the sev-
eral purposes authorized by law. Mitchell v. Speer, 39 Ga.
56, 59.
"Current Expenses." — The expression "current expenses,"
as used in this section and the expression "county pur-
poses," in § 508, are not the same "in meaning and effect."
Current expenses all fall under this head of county pur-
poses, within the meaning of the latter expression as used
in § 508; but there are certain county purposes for which
a tax may be levied by the county authorities that are not
current expenses. Seaboard Air- Line R. Co. v. Wright,
157 Ga. 722, 122 S. E. 35; S. C, 32 Ga. App. 256, 122 S. E.
900.
Items 3. 4, 5, 6, and 7 of § 513 fall under the head of "cur-
rent expenses" as used in this section; whereas items 8 and
9 of § 513 may or may not fall under the head of "current
expenses" as used in this section. Seaboard Air-Eine R.
Co. v. Wright, 157 Ga. 722, 122 S. E- 35; S. C, 32 Ga. App.
256, 122 S. E. 900. Whether item 9 of § 513 comes under
the head of "current expenses" depends upon whether the
tax is levied as a regular, ordinary expense or not. Sea-
board Air-Eine R. Co. v. Wright, 157 Ga. 722, 122 S. E.
35; S. C, 32 Ga. App. 256, 122 S. E- 900.
Where a county, which has not adopted any of the alterna-
tive road laws, regularly maintains a chain gang to be
employed on the public roads, a tax for maintaining, keep-
ing, and equipping the convicts would be classified under
this section as a tax for current expenses. Seaboard Air-
Line R. Co. v. Wright, 157 Ga. 722, 122 S. E- 35; S. C,
32 Ga. App. 256, 122 S. E- 900. But a levy in such a county
of fifty per cent for "current expenses" and also 140 per
cent for road improvement and to maintain the chain gang
was excessive to the amount of 90 per cent. Central Ga.
R. Co. v. Wright, 33 Ga. App. 96, 125 S. E. 520.
Same — Taxes to Pay Charges for Educational Purposes. —
Taxes to pay charges for educational purposes become a
current expense under this section where the county adopts
or has adopted a system of schools provided for in the laws
of this State upon that subject, so that the necessary funds
for maintaining the system are to be annually and regu-
larly raised by county-wide taxation. Seaboard Air-Eine
R. Co. v. Wright, 157 Ga. 722, 122 S. E- 35.
Recommendation of Grand Jury Not Necessary. — A tax
not exceeding 100 per cent, of the State tax to pay accu-
mulated debts and current expenses of the county may by
virtue of this section be levied by the county authorities
without reference to a recommendation of the grand jury.
Seaboard Air-Eine R. Co. v. Wright, 157 Ga. 722, 724, 122
S. E- 25; Southern R. Co. v. Wright, 154 Ga. 334, 114 S. E.
359; Blalock v. Adams, 154 Ga. 326, 333, 114 S. E- 345; Shef-
field v. Chaney, 138 Ga. 677, 75 S. E. 1112.
Authority to Raise Tax for County Purposes Not Ex-
ceeding 100 Per Cent. — When debts against a county (other
than debts for public buildings and their repairs) accumu-
late so that the fifty per cent, allowed by §§ 508 and 510
§ 508
TAX FOR COUNTY PURPOSES GENERALLY
§ 510
will not be sufficient to pay them, the grand jury may, un-
der this section, recommend a tax for county purposes as
high as one hundred per cent, upon the state tax, and if
this amount, or the amount allowed by local law, will not
pay the necessary current expenses and the accumulated
debt, the creditors have a right to require that at least
twenty-five per cent, of the debt shall be paid therefrom.
Waller v. Perkins, 52 Ga. 233, 234.
Authority to Raise Tax for County Purposes Above 100
Per Cent. — If 100 per cent, of the State tax be not sufficient
to pay the accumulated debts and current expenses of the
county, the authorities have power by virtue of § 508 to
raise a tax for county purposes, over and above the tax of
100 per cent. . . . and not to exceed 50 per cent, of the
State tax for the year it is levied "provided two-thirds of
the grand jury, at the first or spring term of their respec-
tive counties, recommend such tax." Southwestern R. Co.
v. Wright, 156 Ga. 1, 118 S. E- 552; Southern R, Co. v.
Wright, 154 Ga. 334, 114 S. E. 359; Wright v. Southern R.
Co.. 146 Ga. 581, 91 S. E. 681.
No Available Funds to Pay Default — Authority to Levy
Tax During Next Year. — Where the county allowed the
payment of the demand to go by default, and there was no
other available fund in the treasury with which to pay
the same, the county was authorized during the next year
to levy a tax for the discharge of the liability. Wilson v-
Gaston, 141 Ga. 770, 82 S. E- 136; Vores v. Early Countv,
25 Ga. App. 650, 104 S. E. 89.
Limit on County Commissioners. — County commissioners
can not raise a tax for count}' purposes, over and above the
taxes authorized in §§ 504, 506, and this section, which shall
exceed fifty per cent, of the State tax under § 508. Bla-
Jock v. Adams, 154 Ga. 326, 332, 114 S. E. 345.
Tax for Indigent Poor and Poor School Purposes. — The
tax of twelve and one-half per cent, allowed by the Act of
1818 for the support of the indigent poor is independent of
the county tax proper and is not included with the hun-
dred per cent, limit of this section. Waller v. Perkins, 52
Ga. 233, 234.
Presumption.— Where it does not appear from the levy
itself whether items should be classified as a tax for "county
expenses" and not for "current expenses" under this sec-
tion, it follows that an affidavit of illegality did not show
that the tax was excessive (if valid under either) as all
presumptions are in favor of legality and validity of a
tax. Seaboard Air-Line R. Co. v. Wright, 32 Ga. App. 256,
122 S. E. 900.
Pleading. — By virtue of this section it was held that a
petition showing that nonpayment of a debt due plaintiff
was solely because of failure to levy a tax and provide
a fund for payment, that the plaintiff has not been in
laches and, the prayers are that the commissioner, or the
officials of the county charged with the duty of making
tax levies, be by mandamus compelled to levy a tax in
such sums and at such times as may be necessary and
proper to pay such judgment as may be required under
the petition, was not subject to demurrer. Jackson Bank-
ing Co. v. Gaston, 149 Ga. 31, 99 S. E- 30.
SECTION 2.
Tax for County Purposes Generally; How Levied.
§ 508. (§ 399.) Tax for county purposes. — The
ordinaries have power to raise a tax for county
purposes, over and above the tax they are here-
inbefore empowered to levy, and not to exceed
fifty per cent, upon the amount of the State tax
for the }^ear it is levied: Provided, two thirds of
the grand jury, at the first or spring term of their
respective counties, recommend such tax. Act
1821, Cobb, 18-1.
See editor's note to § 507.
See §§ 504, 507, 514 and notes thereto.
As to jurisdiction of ordinary when sitting for county
purposes, see § 4796. As to limitation on taxing power
of county, see § 6562.
Constitutionality. — This section and § 507 are not ob-
noxious to art. 7, § 7, par. 1, of the constitution of this
State (§ 6563). Southern R. Co. v. Wright, 154 Ga. 334,
114 S. E. 359.
County Purposes. — All of the items of taxation included
in § 513 are included within the term "county purposes"
pursuant to the meaning of this section. Seaboard Air-
Line R. Co. v. Wright,' 157 Ga. 722, 122 S. E. 35.
Necessity of Recommendation. — Power to levy taxes un-
der this section is dependent upon recommendation of
the grand jury. Commissioners v. Porter Mfg. Co., 103
Ga. 613, 617, 30 S. E- 547.
It was held under this section that in all cases except
those arising under § 504 recommendation is necessary.
Barlow v. Ordinary, 47 Ga. 639.
Tax to pay petit jurors may be imposed under this sec-
tion. Tucker v. Justices, 34 Ga. 370.
Tax to Pay for Paling and Fencing Court House.- A tax
may be imposed under this section for yjalin'g or fencing
in the court house. Tucker v. Justices, 34 Ga. 370.
Tax for Tick Eradication. — It was held under this sec-
tion that the levy of a tax for tick eradication is one for
a county purpose, and the sum of this tax and other items
of county taxation must not exceed 50 per cent, of the
State taxation, except as otherwise provided by law. Car-
ter v. Shingler Realty Co., 157 Ga. 118, 120 S. R. 784.
Items Not Included in Section — Building Court House,
Caring for Poor. — Under the decision in the case of Sul-
livan v. Yow, 125 Ga. 326, 54 S. E- 173, the following items
of the tax levy are not included in this section which re-
quires that the grand jury shall recommend a fifty per
cent. additional tax, viz.: "To build or repair court-houses
or jails, bridges, or ferries, or other public improvements,
according to contract. To pay expenses incurred in sup-
porting the poor of the county, and as otherwise pre-
scribed by this code." McGregor v. Hogan, 153 Ga. 473,
486, 112 S. E. 471; Wright v. Southern R. Co., 137 Ga.
801, 74 S. E. 529; Waller v. Perkins, 52 Ga. 233.
Same — Tax to Pay Accumulated Debts. — The tax au-
thorized by § 507 is in addition to that provided in this
section. Central, etc., R. Co. v. Wright, 156 Ga. 13, 118
S. E. 709; Central, etc.. R. Co. v. Wright, 30 Ga. App.
679, 118 S. E. 797.
The proper county authorities can legally levy not ex-
ceeding 100 per cent, of the State tax to pay accumulated
debts and current expenses; and an item of a tax levy
for such purposes should not be considered in determin-
ing whether the county authorities have exceeded their
power to levy taxes for county purposes under this sec-
tion. Blalock v. Adams, 154 Ga. 326, 114 S. E. 345.
Same — Tax to Prevent Spread of Smallpox. — The Act of
1866 was an act to prevent the spread of smallpox in this
state, and the extra tax authorized to be levied by the
ordinary for that purpose is wholly independent of the gen-
eral taxing power conferred on the ordinary by this sec-
tion. Solomon v. Tarver & Bro., 52 Ga. 405, 406. ■
Creditor's Right to Compel Levy of Tax. — Besides the
tax provided in § 504 for the erection and repair of county
buildings, the ordinary may, under this section, if the
grand jury fail or refuse to act, levy a tax (not to ex-
ceed fifty per cent, on the state tax), sufficient to pay the
necessary county expenses, and any debts that may be
in judgment against the county, or which the county may
have been ordered to pay under a mandamus, and within
this limit of fifty per cent, on the state tax, a creditor
who has a judgment, or in whose favor there is a man-
damus, may compel the laying of the tax. Waller v.
Perkins, 52 Ga. 233, 234.
§ 509. (§ 400.) Duty of ordinary. — It is the duty
of such ordinaries to see that by the time of the
organization of such grand jury they shall have
prepared by their county treasurer, under their
supervision, a statement of the financial condition
of the county, and the amount of tax required to
discharge' the county liabilities for that year,
which shall be by the treasurer presented to the
foreman of the grand jury on the first da}' of
court, for inspection by that body.
The provisions of this section are merely directory and
not mandatory, and the failure of the county authorities
to comply therewith does not affect the validity of the
tax levy made during the year. Atlanta Nat. Bldg.. etc.,
Ass'n. v. Stewart, 109 Ga. 80, 35 S. E. 73.
§ 510. (§ 401.) Failure of grand jury to recom-
mend.—If from any cause such grand jury is not
impaneled, or they adjourn without taking any ac-
tion thereon, or they refuse to make such recom-
mendation sufficient to discharge any judgment
that may have been obtained against the county,
or any debt for the payment whereof there is a
mandamus, or the necessary current expenses of
the year, such ordinaries may levy the necessary
tax without such recommendation. And in all
cases when the spring term of the superior court
[123 1
§ 511
ASSESSMENT AND COLLECTION OF TAXES
§ 514
of any county in this State be adjourned before
the grand jury shall have made their general pre-
sentments, the officer whose duty it may be to
levy a county tax shall levy the same to the full
extent and for any purpose that a recommenda-
tion of such grand jury would have authorized:
Provided, such tax shall not exceed the levy last
recommended by a grand jury for such county.
Acts 1880-1, p. 41.
See §§ 507, 508 and notes therto.
Order Should Specify Objects. — The order levying the
extra tax as provided in this section should clearly and
distinctly specify the objects for which it is levied. Cou-
per v. Rowe, 42 Ga. 229.
The action of the grand jury does not of itself levy the
tax, but recommends it and provision is made by this sec-
tion and § 508 for cases where the grand jury fails to
act. Pope v. Matthews, 125 Ga. 341, 348, 54 S. E- 152.
Applied. Southern R. Co. v. Wright, 154 Ga. 334, 335,
114 S. E. 359.
§ 511. (§ 402.) Where there are several grand
juries. — Where there are several grand juries im-
paneled during such term, the recommendation of
either panel shall be sufficient authority; but if
there are counter-presentments on the subject, it
shall be as though there had been an entire fail-
ure to report thereon.
§ 512. (§ 403.) County creditors and taxpayers.
— The right of a creditor of a county to compel
such tax levied, or of a taxpayer to resist it, is
the same as set forth in section 505, touching tax
for building.
§ 512(1). Ad valorem tax rate in certain coun-
ties.— It shall be unlawful for the taxing authori-
ties of the counties of this State, having a popula-
tion of not less than twenty thousand three hun-
dred and one (20,301) and not more than twenty
thousand three hundred and six (20,306) accord-
ing to census 1920, to levy and collect any ad
valorem tax in excess of 10 mills in the aggregate
for county purposes [shall be prohibited,] except
to pay post and bonded indebtedness and the in-
terest thereon, and to build court houses or jails.
Acts 1922, p. 63.
See § 508 and notes thereto.
Editor's Note. — The insertion of the words placed within
brackets was clearly a ministerial mistake on the part of the
draughtsmen of the act.
SECTION 3.
Purposes for Which County Tax May Be As-
sessed.
§ 513. (§ 404.) Objects of county tax. — County
taxes shall be assessed for the following pur-
poses:
1. To pay the legal indebtedness of the county
due, or to become due during the year, or pasl
due.
2. To build or repair court-houses or jails,
bridges or ferries, or other public improvements,
according to the contract.
3. To pay sheriffs', jailers', or other officers' fees
that they may be legally entitled to, out of the
county.
4. To pay coroners all fees that may be due
them by the county for holding inquests.
5. To pay the expenses of the county, for bail-
iffs at courts, non-resident witnesses in criminal
cases, fuel, servant hire, stationery, and the like.
6. To pay jurors a per diem compensation.
7. To pay expenses incurred in supporting the
poor of the county, and as otherwise prescribed
by this Code.
8. To pay charges for educational purposes, to
be levied only in strict compliance with the law..
9. To pay any other lawful charge against the
county.
See §§ 508, 514 and notes thereto.
As to taxation for county purposes in general, see 12 Enc
Dig. 85 et seq.
In General — Intent and Policy of Section. — This section is
intended to cover the same purposes expressed in the con-
stitution, art. 7, § 6, par. 2 (■§ 6562), although the language
is not the same as that employed in the constitution. Rich-
ter v. Bacon, 145 Ga. 408, 414, 89 S. E- 367.
This section is of great importance, and ordinaries and
treasurers who neglect to conform to this salutary law are
greatly to blame. By the division of the funds into as
many as nine or ten smaller funds, the public are made
aware of the uses to which the taxes are to be applied,
and a far better control over the public money is se-
cured. Mitchell v. Speer, 39 Ga. 56, 59.
Same — County Purposes. — See note to § 508.
Same — Tax for Roads. — The authorities of a county in
which none of the "alternative road laws" of this state
are in force have no power under this section to levy a
tax separately for "public roads," or conjunctively for
"public roads and bridges." Haisten v. Glower, 114 Ga.
992, 41 S. E- 48.
Same — Same — Section 696 Not Referred to. — That the
alternative road law is not in force in all counties may ac-
count for the fact that the road tax provided for in § 696
is not referred to in this section. Pope v. Matthews, 125
Ga. 341, 348, 54 S. E- 152.
Paragraph 2 — Whether Bridge Public Not Determined
by This Section. — Whether a bridge is built and repaired
from funds raised under this section does not determine
whether it is a public bridge. Early County v. Fain, 2
Ga. App. 288, 289, 58 S. E. 528.
The attack upon the levies for bridges and for court-
house and jail repairing is sustained in this case. Such
levies are authorized by this section. Southern R. Co.
v. Wright, 31 Ga. App. 28, 31, 119 S. E- 542.
Paragraph 4. — A county 'is liable under this section to
suit by coroner for fees for inquests. Davis v. Bibb, 116
Ga. 23, 24, 42 S. E. 403.
Paragraph 5 — Publishing Presentment of Grand Jury. —
Payment for publishing general presentment of grand jury
does not come within the terms of paragraph 5 or para-
graph 9 of this section. Houston County v. Kersh, 82
Ga. 252, ' 10 S. E- 199.
Same — Publication of Treasurer's Statement. — Publica-
tion of treasurer's annual statement required by § 576 held
not to be a court expense and as such a legal charge
against the county by virtue of this section. Howard v.
Early County, 104 Ga. 669, 671, 30 S. E- 880.
Same — Fees of Appointed Attorney. — An attorney at law
who was assigned by the judge as counsel for an indi-
gent defendant is not entitled by this section to be paid
for such services out of the county funds. Elam v. John-
son, 48 Ga. 348.
Paragraph 8 — Restrictions. — This section (paragraph 8)
does not confer power on the county authorities to levy
a school tax ad libitum. It manifestly refers to statutes
which authorize the levy, and on which such levy must
depend. Bowers v. Hanks, 152 Ga. 659, 663, 111 S. E- 38;
Richter v. Bacon, 145 Ga. 40S, 89 S. E. 367.
Paragraph 9 — Restricted by Constitution. — To determine
what may be a lawful charge as provided in paragraph 9
of this section against the county, it is legitimate and
proper to look to the public purposes for which the county
revenue may be raised by taxation. Inasmuch as the
power of the counties to raise funds for public expenses
is restricted to the subject-matters, enumerated in article 7,
§ 6, par. 2, of the constitution payments of such funds
must necessarily be restricted to the same subject-mat-
ters and those which legitimately grow out of them.
Howard v. Early County, 104 Ga. 669, 671, 30 S. E- 880.
Same — Accumulated Indebtedness. — A tax for the pur-
pose of paying accumulated indebtedness, as allowed un-
der § 507, can not be lawfully levied under item 9 of this
section. Seaboard Air-Eine R. Co. v. Wright, 157 Ga.
722, 122 S. E- 35.
SECTION 4.
Assessment and Collection of Taxes.
§ 514. (§ 405.) Order must specify. — As soon as
[124]
§ 514
ASSESSMENT AND COLLECTION OF TAXES
§ 520
the county tax is assessed for the year, it shall be
clone by order of such ordinaries and entered on
their minutes, which must specify the per cent,
levied for each specific purpose. The assessment
applies to every species of value or specifics which
is taxed by the State. Acts 1862-3, p. GO.
See § 513 and notes thereto.
As to how tax for county purposes is levied, see § 834.
As to the jurisdiction of the ordinary when sitting for
county purposes, see § 4796. As to the specificness re-
quired, .see 10 Cum. Dig. 752; 12 EJnc. Dig. 82.
"The Per Cent. Levied." — Construed in connection with
§§508 and 513 of the Political Code, the phrase "the per
cent, levied," as used in this section means a given per
cent, upon the state tax levied for the year in question.
Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S. E- 270.
County Purpose Must Be Specified. — Under the law em-
braced in this section, the county assessed must in each
instance specify the particular county purpose for which
this designated per cent, upon the state tax is levied.
Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S. E. 270.
When the extra tax mentioned in § 504 is levied for any
of the purposes specified in §§ 399 and 400 the order of
the ordinary by virtue of this section should clearly and
distinctly state the object and purposes for which it is
levied. Barlow v. Ordinary, 47 Ga. 639.
Same — Substantially in Language of Code. — But constru-
ing this section in connection with § 513, where the leg-
islature has undertaken to deal with the subject of spe-
cial taxation as under nine separate sub-divisions desig-
nating the special purposes for which county taxes may
be levied, it is a sufficient specification of the purpose if
the levy is substantially in the language of the code.
Gaines v. Dyer, 128 Ga. 585, 594, 58 S. E- 175; Yow v. Sul-
livan, 129 Ga. 187, 194, 58 S. E- 662.
Same — Failure to Specify Per Cent. — An order specify-
ing the amount to be collected for each purpose, but not
the per cent., fails to complv with this section. Sullivan
v. Yow, 125 Ga. 326, 54 S. X 173.
Section Substantially Complied with. — A levy of a given
number of cents on each one hundred dollars of the tax-
able property in the county for each of the purposes for
which the tax could be levied under section 513 is a sub-
stantial compliance with this section. McMillan v. Tucker,
154 Ga. 154, 113 S. E. 391.
An assessment by county commissioners levying a tax
of a certain amount upon each thousand dollars of the
taxable property in the county, for the purposes spe-
fically enumerated in the language of the constitution,
§ 6562, stating the per centum of the general state tax
for each of the purposes, and the amount yielded under
each item, as calculated upon the general tax return, is
in compliance with this section. Richter v. Bacon, 145 Ga.
408, 89 S. E. 367.
Arbitrary Tax of Fifty Dollars. — When the county au-
thorities of a given county imposed an arbitrary tax of
fifty dollars for the year 1897 on all dealers in spirituous
or malt liquors, etc., doing business in that county, rely-
ing for the power so to do upon the provisions of this sec-
tion the imposition of such tax was unlawful. Albany Bot-
tling Co. v. Watson, 103 Ga. 503, 30 S. E- 270.
Amendable Defect. — Failure to specify the purposes
named in § 513 as required by this section is an amenda-
ble defect. Clements v. Powell, 155 Ga. 278, 116 S. E- 624.
§ 515. (§ 408.) Order to be advertised. — The
ordinaries must advertise immediately a copy of
such order for thirty days at the door of the court-
house and in a public gazette, if one is published
within the limits of their respective counties, and
furnish the tax-collector with another copy.
Provision Directory. — The provision of this section, in
reference to advertising the order levying county taxes
"is directory and not mandatory," and a failure to com-
ply with such provision does not render the tax levy void.
McMillan v. Tucker, 154 Ga. 154, 113 S. E- 391; McGregor
v. Hogan, 153 Ga. 473, 112 S. E. 471; Garrison v. Perkins,
137 Ga. 744, 758, 74 S. E- 541; Dunn v. Harris, 144 Ga.
385, 389, 87 S. E. 299.
Same — Advertising Gives Notice to Public of Levy. —
Whether the requirement of this section be deemed manda-
tory or directory, or partly one and partly the other, the
advertising in the public gazette follows the passing of the
order and the entry of it on the minutes, and gives notice
to the public of the levy which has been made. Dunn v.
Harris, 144 Ga. 157, 163, 86 S. E- 556.
When Section Not Applicable. — An order by the county
[12
authorities directing the tax collector to proceed with the
collection of the said balance due on the levy of 1904, for
the purposes aforesaid, did not constitute a new tax levy
(ir assessment, and did not fall within the provisions of this
section. Johnson v. Pinson, 127 Ga. 144, 56 S. E. 238.
§ 516. (§ 407.) Taxes for specified purposes.—
Taxes raised for educational purposes, or the sup-
port of the poor, or any other specific purpose,
must be used for such purpose, respectively, and
none other.
As to duty of ordinary to specify the fund on which or-
ders are drawn, see § 410.
The provision in the act establishing the city court of
Richmond county for the payment of the fees of the solic-
itor "out of any funds which may be in the treasury," con-
sidered in connection with the Act of 1894, is to be con-
strued harmoniously with this section; and when thus
construed, the fees of the solicitor are to be paid from funds
legally available for that purpose. Clark v. Black, 136
Ga. 812. 72 S. E. 251. Applied in Butts County v. Jackson
Banking Co., 136 Ga. 719, 71 S. E. 1065.
§ 517. (§ 408.) How collected and paid out— All
taxes levied for county purposes must be assessed
upon the tax-receiver's books for each year, and
collected by the tax-collector, who shall pay the
same to the county treasurer.
As to when executions for non-payment of taxes are is-
sued and to whom directed, see § 1151. As to powers and
duties of tax collector, etc., see Enc. Dig. 117.
§ 518. (§ 409.) Jury certificates to be received. —
It shall be the duty of the tax-collector to receive
jury certificates when properly authenticated, as
far as they will go toward paying the county tax
of the person holding the same, for all taxes due
by the taxpayers of. this State to their respective
counties.
Value of Jury Certificates. — The jury certificates men-
tioned in this section are as good as money to pay county
taxes. Fuller v. State, 73 Ga. 408.
Payment in Jury Script Not Confined to Year in Which
Juror Serves. — This section does not confine the payment
of taxes in jury scrip to the year in which the juror serves
and receives such certificate. Fuller v. State, 73 Ga. 408.
Section Is Self-Executing. — There is no requirement in
this section that the county authorities shall authorize the
tax collector to so receive the jury certificate. Fuller v.
State, 73 Ga. 408.
§ 518(1). Quarterly and semi-annual payments.
— Ordinaries or county commissioners charged
with the fiscal affairs of counties in this State
having therein, or that may hereafter have therein
a city with a population of not less than 100,000,
nor more than 150,000 inhabitants are hereby au-
thorized and empowered to enact and adopt rea-
sonable rules and regulations whereby the tax-
payers of their respective counties may be permit-
ted to pay their county taxes quarterly, or semi-
annually, as to the said county officers may seem
best. The tax collectors of such counties shall
carry out such regulations when so adopted. Acts
1922, p. 182.
§ 519. (§ 410.) Collector's fees.— The tax-col-
lectors shall be allowed the same commissions and
fees for such collections as thejr are allowed by
law for the collection of the State tax, and are
liable to the same fines and forfeitures for anv de-
fault or improper conduct.
See § 523 and notes thereto.
As to salary of tax collector and duty to pay over fees
collected to county or state, for all counties having 200,000
population or more, see § 6017 (5) ; counties having between
44,000 and 60,000, and from 70,000 to 150,000 population, see
§ 6017 (12); counties of from 60,000 to 70,000 population. se»
§ 6017 (25).
§ 520. (§ 411.) Commissions, how assessed. —
5]
§ 521
ASSESSMENT AND COLLECTION OF TAXES
§ 524
The ordinaries, in allowing collectors their com-
missions for collecting the taxes levied by their
respective counties, are authorized and required
to aggregate the taxes for the various purposes
levied, and to allow commissions on the whole
amount, in accordance with the schedule from
which the comptroller-general is authorized to al-
low commissions to collectors for collecting the
State tax. Acts 1861, p. 81.
As to the compensation allowed tax officers, see § 1234.
As to salary of tax collector and duty to pay over fees
collected to county or state, for all counties having 200,000
population or more, see § 6017 (5); counties having between
44,000 and 60,000, and from 70,000 to 150,000 population, see
§ 6017 (12); counties of from 60,000 to 70,000 population, see
§ 6017 (25). As to what is done with default and insolvent
list in netting the digest, see §§ 1014, 1203.
§ 521. (§ 412.) Payment, how enforced. — Any
other remedy or right allowed by law for the en-
forcement of the collection and payment of the
State taxes, either by the comptroller-general or
tax-collector, may be used for the county taxes
by the ordinaries. Act 1796, Cobb, 182. Act 1815,
Cobb, 1062. Act 1825, Cobb, 1066.
See § 519.
As to modes of collection of taxes, see 12 r^nc. Dig. 114.
Not Applicable against One Wrongfully Exercising Duties
of Office. — Where one assuming to act as tax collector was,
on the information of the solicitor general acting as the
agent of the state, declared to be, by a court of competent
jurisdiction, exercising the duties of the office without any
warrant or authority, and rtie money in his hands ordered
to be paid into the hands of the clerk of the superior court
held, that the comptroller general, as the agent of the
state, could not legally issue execution against him and
his securities as tax collecter, for the money which he had
wrongfully collected and ordered to pay out by the judg-
ment of the court. Hartley v. State, 3 Ga. 233.
Notice Not Necessary. — This section and §§ 522, 523 and
524 do not prescribe notice as a condition precedent before
execution is issued against tax collectors and sureties.
Walden v. Lee, 60 Ga. 297, 298; Price v. Douglas County,
77 Ga. 163, 169, 3 S. E. 240.
§ 522. (§ 413.) Fi. fa. against persons holding
county money. — Such ordinaries shall also have
authority to compel all persons, their heirs, execu-
tors or administrators, who have or may have in
their hands any county money, collected for any
county purpose whatever, to pay over the same.
See § 521 and notes thereto.
As to tax executions by tax collectors, garnishment on;
insolvent; on what levied, how claims interposed; costs;
levy and sale; judicial interference, see §§ 1151-1168.
Constitutionality. — This section and § 523 are held to be
constitutional in view of § 524. Roberts v. Dancer, 144 Ga.
341, 347, 87 S. F. 287; Hobbs v. Dougherty County, 98 Ga.
574, 25 S. F. 579.
Refusal of Banker to Pay over Money Collected for
County Purposes. — Upon the refusal of a banker to pay over
money which had been "collected for any county purpose
whatever" and deposited with him by the county treasurer
or tax collector, the ordinary or other proper county au-
thorities may, under the provisions of this section and §§
523 and 525 of the code, issue execution against the banker
for the purpose of collecting from ' him the amount thus
placed in his hands. Hobbs v. Dougherty County, 98 Ga.
574, 25 S. F- 579.
Against Whom Execution May Be Issued. — Under this
section and §§ 523 and 525, an execution may be issued
against any person, whether an official or not, holding
county money, and without suit or notice of any kind.
Greer v. Turner County, 138 Ga. 558, 562, 75 S. F. 578.
Remedy by Affidavit of Illegality Not Available. — As-
suming that §§ 2550 et seq. apply as well to summary ex-
ecutions issued against the defaulting sheriff as they would
apply if there had been a regular suit and judgment, and
for the purposes of the present case treating these sections
as applicable, nevertheless the remedy provided by illegal-
ity is not available where execution was issued by county
board under this section and § 523 against the sheriff and
his sureties, because an affidavit of illegality will not lie
until there has been a levy on the property. Ben Hill
[126]
County v. Massachusetts Bonding, etc., Co., 144 Ga. 325.
87 S. F. 15.
Bond of Receiver Payable to Governor — Right to Issue
Execution. — An ordinary is not authorized under this sec-
tion and § 523 to issue execution against a surety on the
bond of a receiver payable to the Governor for amount re-
ceived in excess of receiver's legal commissions. Ganniti
County v. Pack, 149 Ga. 703, 102 S. F- 166.
§ 523. (§ 414.) On failure to pay. — On failure to
pay the same, such ordinaries shall issue execu-
tions against such persons and their securities, if
any, for the full amount appearing to be due, as
the comptroller-general issues executions against
defaulting tax-collectors. Act 1796, Cobb, 182.
See §§ 521, 522, 524 and notes thereto.
As to right of comptroller to issue executions against col-
lectors and sureties on default, see §§ 338 (6), 1187. As
to executions against countv treasurers, see 12 Fnc. Die.
530.
Constitutionality. — This section is constitutional in view
of § 524. Roberts v. Dancer, 144 Ga. 341, 347, 87 S. F- 287.
No Need to Specify. — It is not essential to the validity of
an execution issued by virtue of this section that it be set
out therein from whom the defendant in fi. fa. received the
money, what particular money it was, or how it was county
money. Greer v. Turner County, 138 Ga. 558, 75 S. F. 578.
The chairman of the board of roads and revenues of Tur-
ner County has authority by this section and § 522 and Act
1908, p. 354, to issue an execution against any person hold-
ing county funds collected by the county for any pur-
pose. Greer v. Turner County, 138 Ga. 558, 75 S. F- 578.
Execution Not Open to Attack Because of Claim for In-
terest.— Construing this section and §§ 519 and 521 together,
and in connection with the provisions of § 1187, the execu-
tion issued in this case against the tax collector for county
taxes collected was not open to attack on the ground that
the execution is proceeding for interest on the principal
sum thereof from the date of execution at the rate, of 20
per cent, per annum and for attorney's fees. McWhorter v.
Chattooga County, 154 Ga. 289, 291, 114 S. F- 203.
Failure to Give Bond — Right to Issue Execution. — An ex:
ecution founded on tax collector's bond can not be enforced
on the ground that he has public money in his hands,
where it appears that he did not in fact give a bond. To
hold him liable for public funds held by him, a proper exe-
cution must be issued. Lee v. Walden, 68 Ga. 664.
§ 524. (§ 415.) Illegality. — If such execution
shall issue for too much, or if defendant denies on
oath owing any part thereof, he may, by filing an
affidavit of illegality, according to the rules gov-
erning other illegalities, cause an issue to be
formed thereon, which shall be tried by a special
jury at the first term of the superior court there-
after.
See §§ 521, 522, 523 and notes thereto.
As to judicial interference in levy or distress for taxes,
see § 1163. As to right when execution is issued illegally,
see § 5305. As to defenses maintainable, see 5 Fnc. Dig.
561. As to grounds of illegality, see 5 Cum. Dig. 734; 12
Enc. Dig. 578.
Constitutionality. — The remedy by illegality under this
section is valid and constitutional. Bennett v. Wheatley.
154 Ga. 591, 604, 115 S. F- 83.
When Remedy Not Available. -Remedy by affidavit of
illegality is not available where there was no levy on the
property. Ben Hill County v. Mass. Bonding Ins. Co..
144 Ga. 325, 326, 87 S. F. 15.
Power of Ordinary if He Desires to Contest Proceedings.
— The ordinary may, under this section, if he desires to
contest the proceedings and to have a trial by jury, cause
an issue to be formed by filing an affidavit of illegality
against an)' execution which may be issued against him.
Russell v. Patton, 54 Ga. 499.
Sale of Property after Issuance of Execution and Affida-
vit of Illegality Filed. — Where an execution has been is-
sued against a tax collector and the sureties on his bond,
and an affidavit of illegality filed by the tax collector un-
der this section and § 5307, has been accepted by the levy-
ing officer, a subsequent sale of the property of the surety,
before judgment on the illegality, is invalid, and conveys
no title. Whelchel v. Lucky, 41 Fed. 114.
Sufficiency of Remedy. — In determining whether § 2366 (71)
is constitutional it was said: if the language "other exe-
cutions" in § 2366 (71) (§ 20, article 7, act 1919, p. 160) has
reference to these and other summary executions under
§ 523, then the defendants in such executions have an
§ 525
PROCEEDINGS AGAINST DEFAULTING TAX-COLLECTORS
§ 52&
ample remedy by affidavit of illegality under this section.
Bennett v. Wheatley, 154 Ga. 591, 604, 115 S. E- 83.
Affidavit against Administratrix. — An affidavit of illegal-
ity to a tax fi. fa., issued by order of the ordinary against
the administratrix of the collector and his sureties, was
properly retained to try the issue pursuant to the provi-
sions of this section. Walden v. County of bee, 60 Ga.
397; Lee v. Walden, 68 Ga. 664, 668.
§ 525. (§ 416.) Persons borrowing county
money. — The provisions of the foregoing are ap-
plicable to all persons and their sureties who may
borrow, or pretendedly borrow, any county money
from any person having custody thereof, and shall
be in all respects held as holders of county funds.
See § 522 and notes thereto.
§ 526, (§ 417.) County tax may be remitted. — In
all cases where persons have been overtaxed, or
for any other cause taxes are claimed to be remit-
ted, refunded, or in any manner claimed against,
the ordinaries shall be authorized to hear and de-
termine such application to the extent of the in-
terest of the county therein. Act 1845, Cobb,
1077.
As to power of Governor to suspend collection of taxes,
see § 162. As to relief from double tax, see §§ 1107-1111.
As to recovery back of taxes, see 12 Enc. Dig. 157.
When property owners had paid the taxes exacted un-
der the illegal levy, the county authorities could allow the
amount so paid as a credit or set-off as against the amount
which each would be required to pav under a valid lew.
Johnson v. Pinson, 127 Ga. 144, 56 S. E. 238.
SECTION 4A.
Fiscal Year in Certain Counties.
§ 526(1). Creation of fiscal year. — Counties of
this State having a population of 100,000 or more
by the United States Census of 1920 or any
future United States Census or any official State
Census, may create, as herein provided, a fiscal
year for such counties, which fiscal year so cre-
ated, ma}^ 'cover a different period of time than
the calendar year, and for which fiscal year so
created, taxes shall be levied and expended, in the
manner now provided by law. Acts 1922, p. 108,
1925, p. 198.
§ 526(2). Power to levy taxes. — Any such
county, within two years after the adoption of
such fiscal year hereunder, shall have full power
and authorit}' to levy taxes for adjusting and pay-
ing any indebtedness which may have been law-
fully created, for current expenses, from the first
day of January, of the year in which the fiscal
year hereunder is adopted, to the beginning of
such first fiscal year. Acts 1922, p. 108.
§ 526(3). Order adopting period. — The fiscal
year as provided for in section one herein shall
not be operative or effective in any such county,
unless and until the Ordinary, Board of Commis-
sioners,'or other authority, having charge of the
fiscal and administrative affairs of any such
county, shall by formal order, which shall be en-
tered upon their minutes at the time, declare the
period of such fiscal year, and when the same shall
have been declared as herein provided, the same
shall have the effect of adopting the period, there-
in described, as the fiscal year of said county and
all taxes which may be levied for such fiscal year
shall be used or expended during the same, in the
same manner as" taxes are now levied, used and
expended during the current calendar year. Acts
1922, p. 108.
[12
SECTION 5.
Proceedings against Defaulting Tax-Collectors
and Treasurers.
§ 527. (§ 418.) Tax-collectors and treasurers to
make account of actings. — The officers in the sev-
eral counties who by law are authorized to bring
defaulting tax-collectors and treasurers to a set-
tlement of their accounts with the county shall
also have power and authority, and it shall be their
duty, to compel the tax-collectors and treasurers
of their respective counties to come before them
at such times as may be designated by them, not
less than twice in each year, to render an ac-
count of their official actings and doings respect-
ing the county tax and funds, and to make a full
and complete exhibit of their books, vouchers,
accounts, and all things pertaining to their sev-
eral offices. Acts 1882-3, p. 82.
As to county auditors and duty to audit accounts of tax
collectors and county treasurers, see §§ 416-418. As to ju-
risdiction of ordinary over officer handling money, see ?
4796 (7).
Under this section and § 528, the board of commission-
ers of roads and revenues for Chattooga County has au-
thority to require the tax collector to appear before them
at stated times to render an account of his official actings,
etc. Edmondson v. Glenn, 153 Ga. 401, 112 S. E- 366.
The notice served upon the collector did not purport to
exceed the authority conferred by this section and § 528.
Edmondson v. Glenn, 153 Ga. 401, 112 S. E- 366.
§ 528. (§ 419.) Failure to account, malpractice.
■ — The failure or refusal of any tax-collector or
county treasurer to render the account and make
the showing provided for by the preceding sec-
tion, after being notified so to do by the proper
officer or officers, shall constitute malpractice in of-
fice, and a conviction therefor shall subject the
offender to removal from office. Pending the
continuance of such failure or refusal after the
notice aforesaid, the officer or officers aforesaid,
who are by law authorized in the several counties
to bring defaulting tax-collectors and treasurers
to a settlement, shall have power, and it shall be
their duty, to suspend the said tax-collector or
treasurer from duty; and in the case of the tax-
collector, to appoint some competent person in his
stead to collect the county tax pending such sus-
pension and until the question of removal can be
passed upon and decided by the proper tribunal:
and in case of the treasurer, to appoint some fit
and proper person to take charge of the county
funds, and perform the duties of his office, pend-
ing such suspension and until the question of his
removal can he passed upon and decided by the
proper tribunal Proper bonds shall be taken from
the| persons iso appointed, as now provided by law:
Provided, nevertheless, that the power given by
this and the preceding section to inquire into the
affairs of the tax-collector and treasurer of the
county, and to suspend them from office in cer-
tain cases, shall in no way affect their own lia-
bility, or that of the sureties on their official
bonds.
See § 527 and notes thereto.
Quere, whether or not board of commissioners has the
power to punish the tax collector for contempt, because
of failure on his part to comply with notice to appear be-
fore board with books, etc., appertaining to his office.
Sayer v. Brown, 119 Ga. 539, 549, 46 S. E- 649.
Quere, whether remedies in this section are exclusive.
Sayer v. Brown, 119 Ga. 539, 549, 46 S. E. 649.
§ 529
FROM OTHER SOURCES THAN TAXATION
§ 538
ARTICLE 2.
From Other Sources Than Taxation.
§ 529. (§ 420.) Sources of county revenue. — All
sums which are paid into the county treasury for
the following accounts make a part of the county
revenue, viz. :
1. For the authorized sale of any county prop-
erty, unless otherwise directed.
2. For the rent or hire of any county property.
3. For shows or exhibitions.
4. From estrays.
5. From licenses to peddle.
6. From any other sources.
Prior to 1823, the revenue for county purposes was de-
rived from licenses, fines and sale of public lots. Walton
County v. Morgan County, 120 Ga. 548, 553, 48 S. F. 243.
§ 530. (§ 421.) Licenses, exhibitions, etc. — The
county charges for such licenses are as follows:
To peddle within the county, unless other-
wise provided bv the ordinary under ,
the law $ 50.00
To exhibit shows with horses 10.00
To exhibit animals, beasts, and the like . . . 10.00
To exhibit any pictures or figures 5.00
To exhibit any other show, not less than
$5.00, nor more than $25.00, as the ordi-
nary may order.
To exhibit theatricals or musical entertain-
ments for profits to the proprietor, not
more than $5.00 on each exhibition, and
subject to contract with the county.
Acts 1890-1, p. 128. Act 1820, Cobb, 184. Act 1835,
Cobb, 185.
As to tax on shows, circus companies, etc., see §§ 967-
970.
Who Is a Peddler. — Only the person who itinerates for
trading purposes is a peddler. His employer, though own-
ing the goods, team and vehicle, is not required to obtain
a license, required by this section, nor subject to the pen-
alty or forfeiture of § 533 for failing to do so. Wrought
Iron Range Co. v. Johnson, 84 Ga. 754, 11 S. F. 233.
When one person travels through the country as an
itinerant, exhibiting samples of goods and taking orders for
goods of like character, and another follows in his wake
delivering the goods thus sold, both should be regarded as
peddlars when it appears that the business was thus con-
ducted in pursuance of a scheme to evade the law of this
State requiring peddlers to register and pay taxes. Dun-
can v. State, 105 Ga. 457, 30 S. F- 755.
§ 531. (§ 422.) Licenses for one year. — All such
licenses, except exhibitions, are for the term of
one year, extending to the county limits.
§ 532. ( 424.) Exhibitions, etc., without license.
— If any person exhibits any show without first
obtaining such license, or exhibits a show different
from that for which he obtained license, he for-
feits to the county three times the cost of license
for each exhibition.
§ 533. (§ 425.) Peddling without license. — If any
person, except a disabled soldier of this State,
peddles without first obtaining such license in
counties where the ordinaries take no action regu-
lating peddling, he forfeits to the county one hun-
dred dollars for the first act of peddling, and for
each month thereafter twenty-five dollars more.
See §§ 530, 1886, P. C. 631, and notes thereto.
As to disabled soldiers peddling without a license, see
§ 1888.
Who Is a Peddler. — Where one traveled about, carrying
with him all the tools, ladders, etc., necessary to putting
up and repairing lightning rods, and charged for putting
rods on houses a certain amount per foot and a certain
amount for points, a part of the charge being for putting
them up, and where he did not sell any lightning rods
without putting them up, he was not a peddler, and was
not subject to the forfeiture provided for in this section.
Ezell v. Thrasher, 76 Ga. 817.
§ 534. (§ 1524.) Taxpayer may demand license.
— Any taxpayer of a county may call upon any
person in pursuit of any occupation for which a
license must be obtained, to exhibit his license,
and if he fails so to do, it shall be sufficient
grounds, on making affidavit of the fact, to cause
its forfeiture; and if, on investigation, it appears
that he has such license, he forfeits the sum of
ten dollars and costs.
§ 535. (§ 1525.) Violations, how punished. — If
any ordinary, of his own knowledge, knows of
such violation, or if any person will make affi-
davit of such «fact, it is the duty, of the several
ordinaries of this State, unless they know to the
contrary, to issue a process, directed to all and
singular the sheriffs and constables of this State,
for the amount of such forfeit, commanding them
to levy on sufficient of the property, real or per-
sonal, of the defendant to satisfy the same and
costs, and to levy and sell the same as in case of
attachments; and in default of finding goods
enough for such purpose, to arrest such defend-
ant and him safely keep as in cases of persons un-
der ca. sa. Such process must be returned to the
court whence it issues.
Against Whom Process to Be Issued. — The person to
whom the license to peddle is required to be granted, is
he who travels and vends the goods and wares, and it
is against such person that the process is to be issued,
under this section, when he peddles without license. How-
ard v. Reid, 51 Ga. 329.
Process Illegal. — A process issued under this section
against A and B, on the ground, that as partners, they
did, on, etc., in the county, etc., "by their • agent, ped-
dle articles, etc., without having obtained license author-
izing them to do so," etc., is, upon its face, illegal and
void.' Howard v. Reid, 51 Ga. 329.
Goods Peddled or Sold by Sample. — The provisions of
this section under which the ordinary proceeded fur-
nishes no warrant or authority for issuing an execution
against the owner of goods because they are peddled or
sold by sample through an itinerant agent. Wrought
Iron Range Co. v. Johnson, 84 Ga. 754, 756, 11 S. F- 233.
§ 536. (§ 1526.) Shows, exhibitions, etc.— If any
show is on exhibition in any county without the
license required, it is the duty of the ordinary in-
stanter to place such process in the hands of such
officer; and if, on presentation, the license fee re-
quired and all costs are instanter paid, it shall dis-
charge the same, but not otherwise; but if such
course is not taken, it is no waiver of such forfei-
ture.
§ 537. (§ 1527.) Persons may defend. — Persons
against whom such process may issue may ar-
rest the same by swearing that they have not
violated the law on account of which process has
issued, and by otherwise complying with the pro-
visions of the section against persons holding
county funds, and which shall be returned and
tried in the same manner.
As to right to file affidavit of illegality, see § 524.
§ 538. (§ 1528.) Damages.— If, on the trial of
such issue, the jury who tries shall believe that
such affidavit was filed for delay only, or is with-
out any excuse to sustain it, they shall so state
[ 128 J
§ 539
COUNTY POOR
§ 552
in their verdict, and if they so find, the defendant
shall pay twenty-five per cent, additional.
See § 5308.
§ 539. (§ 1529.) Not to interfere with the Penal
Code. — The penalties and forfeitures hereinbefore
set forth are not to interfere with any provision
of the Penal Code, that is or may be enacted, mak-
ing such acts penal.
§ 540. (§ 1530.) Disposition of moneys. — The
moneys arising from all licenses are to be paid to
the county treasurer, to be used for county pur-
poses, but one half of moneys arising from forfei-
tures go to the informers. Act 1835, Cobb, 184.
As to precedence in suits by informers, see § 4334. As
to how suits by informers must be commenced, see § 4370.
CHAPTER 8.
County Poor.
ARTICLE 1.
Jurisdiction of Ordinary.
§ 541. (§ 426.) Paupers. — The general supervi-
sion of all paupers is vested in the ordinaries of
each county. Act 1792, Cobb, 346. Act 1818,
Cobb, 347.
See § 543 and notes thereto.
Inquiry as to Chargeability. — Under this section, until
there has been some inquiry into the circumstances of the
poor who will be treated as paupers and who shall become
chargeable to the county no persons can be properly said
to be so chargeable. The Justices v. Chapman, 16 Ga. 89.
Confederate soldiers, referred to in the expression "in-
digent pensioners," as used in § 2 of an act approved
August 13, 1909 (Acts 1909, p. 173), can not be classed as
paupers. Clark v. Walton, 137 Ga. 277, 73 S. E- 392.
§ 544. (§ 429.) Tax. — The said ordinaries have
authority to lay and collect a tax for the purpose
of purchasing said house and farm.
See section immediately preceding and note thereto.
As to tax for support of paupers, see § 506. As to pur-
poses for which county taxes may be assessed, see § 513,
par. 7. As to right to use tax specified for some partic-
ular purpose for another purpose, see § 516.
§ 545. (§ 430.) Regulation of. — They are also au-
thorized to establish all necessary rules and regu-
lations in the management of said farms.
§ 546. (§ 431.) Workshops, etc. — They are fur-
ther authorized to establish any workshops, and
schoolhouses, or churches, on said farms as they
may deem proper, and may do any and every-
thing necessary to carry out the provisions of this
and the three sections preceding it.
§ 542. (§ 427.) Poorhouses. — They have author-
ity to purchase lands for a poorhouse, the title
thereto vesting in the county, or to rent improve-
ments for such purpose, or to board out the poor,
and to make all necessary contracts in relation to
them.
See § 543 and note.
§ 543. (§ 428.) Pauper farms. — Upon the recom-
mendation of the grand juries of their respective
counties, said ordinaries shall have power and au-
thority to purchase a house and farm in their re-
spective counties, upon which farm they may re-
quire all paupers in said counties to labor who are
not, from old age and disease, unable to work.
Acts 1865-6, p. 230.
As to object of county tax, see § 513, par. 7.
Power of County.— It is within the legitimate powers of
a county by virtue of this section to rent a farm for the
purposes of maintaining and working paupers chargeable
against the count}', and to furnish live stock and food
products necessary to maintain such farm and carry out
such purposes. Bailey v. Miller County, 24 Ga. App.
746, 102 S. E. 178.
Liability of County. — Where a county obtains posses-
sion of land, with crops growing thereon belonging to an-
other, under a void contract, the county is nevertheless
liable to the owner of the land for its rental value for the
time during which the land was actually occupied and
used by the county, and for the value of the crops thereon.
Bailey v. Miller County, 24 Ga. App. 746, 102 S. E- 178.
Necessity for Vote to Incur Debt.— Though the proper
authorities of a county, may purchase a farm upon which
they may by virtue of § 541 require paupers not disabled
by old age or disease to work, and may by virtue of this
section levy and collect a tax for the purpose of purchas-
ing such farm, yet the county authorities can not incur
a debt for such purpose without a vote of the people, as
prescribed in the constitution, § 6563. Dancer v. Shingler,
147 Ga. 82, 92 S. E- 935.
Ga. Code— 5 [ 129
ARTICLE 2.
Relief to Poor Confederate Soldiers.
§ 547. (§ 432.) Poor fund to relieve ex-Confed-
erates.— Each and every county in this State is
authorized and directed to use so much of the
poor fund raised by taxation as may be necessary
to provide food and clothing for any ex-Confed-
erate soldier of this State, who may become
chargeable upon the poor fund, without compel-
ling him to become an inmate of the poorhouse
or poor-farm of said county. Acts 1893, p. 118.
§ 548. (§ 433.) Regulations to discover whether
applicant entitled. — Whenever any ex-Confederate
soldier shall apply to the proper county authority
for assistance from the poor fund, it shall be the
duty of said county authorities to ascertain
whether he is properly entitled to assistance con-
templated by the preceding section. Acts 1893, p.
118.
§ 549. (§ 434.) Assistance in food and clothing.
— The assistance to be rendered shall not be by
payments of money, but shall be made in provi-
sions of food and a proper amount of comfortable
clothing, to be used wherever he may see fit to
reside; it being the intent that no ex-Confederate
soldier of Georgia shall be forced to become an
inmate of any poorhouse or poor-farm in this
State in order to obtain relief from the authorities
of the county in which he may reside. Acts 1893,
p. 118.
ARTICLE 3.
Commissioner of the Poor and His Duty.
§ 550. (§ 435.) Commissioners of the poor. — The
ordinaries shall, if necessary, appoint a commis-
sioner of the poor, and the money arising from the
poor tax shall be paid into the hands of the
county treasurer, on orders granted in his favor
by such ordinaries, or in favor of any other per-
son.
§ 551. (§ 436.) Receiver and disburser. — Who-
ever receives and disburses such fund must, once
in every year, at the time such ordinaries may or-
der, or oftener if they require, make up his ac-
count and lay the same before them, who shall
allow or disallow, and whenever there is a de-
ficiency or liability on the part of such person, he
may be ruled for the amount as an officer of court.
§ 552. (§ 437.) Applieation of pauper. — Applica-
§ 553
CONTRACTS FOR SUPPORT OF PAUPERS
§ 562(2)
tion to be provided for as a pauper may be made
at any time to the commissioner of the poor or
the ordinary, upon which a hearing must be had,
with the least possible delay, by the ordinary, and
the person to whom such application is made is
authorized to provide for such applicant as other
county poor until a hearing is had.
ARTICLE 4.
Paupers.
§ 553. (§ 438.) Who are paupers. — No person
shall be entitled to the benefits of the provision
for the poor who is able to maintain himself or
herself by labor, or, if not, has sufficient means,
and in cases where females are unable to main-
tain themselves and the helpless children they
may have also, they may be aided to the extent
required in the furnishing of food, clothing, or
shelter.
As to contract by county for support of paupers by char-
itable institutions, see § 562 (1).
Confederate soldiers, referred to in the expression "in-
digent pensioners," as used in § 2 of an act approved
August 13, 1909 (Acts 1909, p. 173), can not be classed as
paupers. Clark v. Walton, 137 Ga. 277, 73 S. E. 392.
§ 554. (§ 439.) Parents and children bound to
support each other. — If any such person has
father, mother, or child of sufficient ability, he or
she must be supported by them, and failing so to
do, any county in this State, having made provi-
sion for such persons, may sue persons of full age
standing in such relation to them, and recover for
the time such county has made provision for such
person: Provided, always, the person sued was
possessed of such ability.
As to parents' obligation to child until he reaches ma-
jority, see § 3020. As to right of parents and children to
mutually protect each other, see § 3025. As to liability
of parent for support of child, see 9 Cum. Dig. 157; 10
Enc. Dig. 76.
§ 555. (§ 440.) Certificate of the ordinary.— On
the trial, the certificate of the ordinary that the
person was poor and unable to sustain himself,
and that he was maintained for such a time at the
expense of the county, is presumptive evidence of
such maintenance, and the costs thereof.
§ 556. (§ 441.) Paupers, how buried. — Whenever
any person shall die in this State, whose family
and immediate kindred are indigent and unable
to provide for the decent interment of such de-
ceased person, and where the deceased is a pauper
and destitute of the means of paying for decent
interment, the ordinary of the county where said
death shall occur, in case there be any pauper
funds belonging to the county unexpended, shall
appropriate a sufficient amount thereof to provide
a decent interment for such deceased pauper, or to
reimburse such person as may have expended the
same voluntarily — said appropriation not to ex-
ceed what is necessary to defray the ordinary
funeral expenses of persons dying in humble cir-
cumstances in this State. Acts 1863-4, p. 60.
Where a coroner not officially but as an individual,
caused dead paupers, the victims of a storm, to be buried
decently, he was entitled to be reimbursed by the county
by virtue of this section. Walker v. Sheftall, 73 Ga. 806.
§ 557. (§ 442.) Persons removing paupers, lia-
bility.— When any inhabitant of any county, city,
town or village in or out of the State sends a
pauper to some county in this State, by paying the
expense of transportation, or otherwise has him
removed for the purpose of burdening some other
community, the person so engaged shall- be per-
sonally liable for the support of the pauper in the
county where he locates.
§ 558. (§ 443.) County liable, when. — If the per-
son so engaged in transporting a pauper is in-
solvent, or does not respond to such demand
from any cause, the county from which the trans-
portation took place shall be liable.
As to when county liable to suit, see § 384.
§ 559. (§ 444.) Paupers left by migratory com-
panies, etc. — If any person commanding any ves-
sel, or the manager or proprietor of any theatrical,
circus, or any other migratory company, or their
agent, or any person passing or moving through
this State shall bring and leave or abandon herein
any infant, lunatic, maimed, deaf and dumb, blind,
aged, or infirm person, who is or is likely to be-
come chargeable to the county, he may be brought
by warrant before any judicial officer.
§ 560. (§ 445.) May be required to give bond. — If
such officer is satisfied that such person is or
probably will become such charge, he must re-
quire such person to enter into bond, payable to
the Governor of the State and his successors in
office, with sufficient sureties resident in this
State, for the sum of five hundred dollars, for each
of such persons so brought, conditioned to pay all
such expenses as any county in the State may
lawfully incur in their support.
§ 561. (§ 446.) Such bond to be filed in the of-
fice of the ordinary. — Said bond must be filed' in
th^e office of the ordinary of the county where the
paupers are at the time of its execution, and, upon
condition broken, may be sued on and recoveries
had, until exhausted in different actions, in behalf
of any county or person who may have properly
contributed to the maintenance of such pauper.
' § 562. (§ 447.) Lunatics. — When a pauper is
found to be a lunatic, idiot, deaf and dumb, or
blind, they must be dealt with according to the
laws relating to them.
ARTICLE 4A.
Contracts for Support of Paupers.
§ 562(1). In certain counties. — Counties having a
population of over 150,000, as determined by the
present or any future census of the United States,
be and they are hereby authorized and empowered,
in addition to the ways now authorized by law, to
provide for the support of paupers by contracting
with any city within the county, or with charitable
organizations, or both, for. the support, in whole
or in part, in institutions of paupers as herein de-
fined and to appropriate money therefor. Acts
1922, p. 181.
As to who liable for support of paupers, see § 553.
§ 562(2). Delegation of county authority. — Any
county may delegate authority to, or contract
with, any city within the county, or a charitable
organization, or both, or a joint committee or
board, selected by said county and representing
it, the said city, and such charitable organization,
to administer relief to paupers in their homes,
from funds appropriated by the county, and au-
thority is hereby granted to said county to make
[ 130
§ 562(3)
COUNTY OFFICERS
§ 57 2
such appropriation; it being the intent of this pro-
vision to enable said counties to economize in the
administration of poor relief and to procure for
those in need the benefits of trained and experi-
enced service, to the end that they may be helped
to help themselves, and the county thereby re-
lieved of their further support. Acts 1922, p. 181.
§ 562(3). Authorized officers. — Said counties,
with respect to all things herein mentioned, may
act by and through their officers authorized to
act in such matters, whether they be ordinaries,
commissioners of roads and revenues or any other
officer or officers whatsoever; and said cities by
and through their respective mayors and councils
or other officer or officers authorized to act in such
matters. Acts 1922, p. 181.
§ 562(4). "Pauper" defined.— The word "pauper"
as herein used, shall mean any person who is not
able to maintain himself or herself by labor and
who has not sufficient means therefor; and, in the
case of children, one who has no legal source of
support from which he or she can be maintained.
Acts 1922, p. 181.
§ 562(5). Effect of partial invalidity. — If any
provision of this Act shall be held unconstitu-
tional, such provision alone shall be invalid and
other parts of this Act shall be unaffected there-
by and shall remain of full force and effect. Acts
1922, p. 181.
ARTICLE 5.
Home for Indigent Old Women.
§ 563. Home for indigent old women. — In coun-
ties having a population of 75,000, or over, as per
the last census of the United States, the commis-
sioners of roads and revenues may in their dis-
cretion, appropriate of the money of said county,
not exceeding five thousand dollars in any one
year, for the purchase artd maintenance of a
charitable home situated in said county for in-
digent old women. Acts 1907, p. 109.
§ 566. (§ 450.) How removed. — They may be re-
moved in the same manner that clerks of the su-
perior courts may be. Act 1821, Cobb, 211.
As to the manner in which clerks of the superior courts
are removed, see § 4897.
§ 567. (§ 451.) Vacancies. — Vacancies are filled
as vacancies in other county offices are filled.
See § 564 and notes thereto.
As to term of officers to fill vacancies, see § 265.
§ 568. (§ 452.) Qualifications. — No other condi-
tions of eligibility are required save those that
apply to all other officers, but no other officer can
be county treasurer.
§ 569. (§ 453.) Oath and bond, where filed.—
His oath of office must be entered on the minutes
of, and filed in the office of, the ordinary, and his
official bond must be filed and recorded in said
office. Act 1838, Cobb, 215.
§ 570. (§ 454.) Oath. — County treasurers, before
entering on the duties of their office, besides the
oath required of all civil officers, must take the
following oath, viz.: "I, , do swear I will
faithfully collect, disburse, and account for all
moneys or other effects of the county, and other-
wise faithfully discharge all the duties required of
me by law as county treasurer. So help me God."
As to the additional oath required of public officers, see
§ 269.
CHAPTER 9.
County Officers.
ARTICLE 1.
County Treasurer.
SECTION l.
Election and Oath.
§ 564. (§ 448.) Election and term of treasurer. —
County treasurers are elected by the qualified
voters of their respective counties; and hold their
offices for two years and until their successors are
elected and qualified. Act 1825, Cobb, 211. Acts
1827, p. 82.
As to election of county officers, removal from office
and eligibility, see § 659.
The Act of 1918, p. 505, which appointed a treasurer for
Taylor County, is unconstitutional because it conflicts with
§ 6391-, in that it is a special law passed when there is
already a general law on the subject of uniform operation
throughout the State. McCants v. Layfield, 149 Ga. 231,
239, 99 S. E. 877.
§ 565. (§ 449.) Oath and bond. — No appoint-
ment or election is effectual until bond and security
is given and oath of office taken.
SECTION 2.
Bond of County Treasurer and Its Lien.
§ 571. (§ 455.) Amount of bond.— They shall al-
so, within thirty days from their election or ap-
pointment, give a bond payable to the ordinary of
the county, or payable to county commissioners in
those counties where such officers exist, with se-
curities to be by him or them respectively ap-
proved in a sum which, in his or their judgment
respectively, will be ample to protect the county
from any loss. Acts 1889, p. 51. 1918, p. 109.
Editor's Note. — Prior to the amendment of this section
by the Acts 1918, p. 110, no mention was made of county
commissioners in this section, and the bond was required
to be "double the amount of the county tax for the en-
suing year, receipts from other sources and cash on hand."
Now it is only necessary that the bond be "a sum ample
enough to protect the county from any loss."
Effect of Approval of Insufficient Bond. — The approval of
a bond of a county treasurer for a penalty much less than
that required by this section does not relieve the county
treasurer of the necessity of giving a bond in the amount
of the statutory penalty, when cited to do so bv the proper
officer. Tarver v. Wooten, 147 Ga. 19, 92 S. E. 532.
Effect of Invalid Act Purporting to Abolish Office. — An act
purporting to abolish the office of treasurer of Dougherty
county and to fix the amount of the bond of the clerk as
ex-officio treasurer, which was held to be unconstitutional
in Hall v. Tarver, 128 Ga. 410 (57 S. E- 720), is no au-
thority for excusing the treasurer of Dougherty county
from giving a bond in the penal sum prescribed for bonds
of county treasurers by this section. Tarver v. Wooten, 147
Ga. 19, 21, 92 S. E. 532.
§ 572. (§ 456.) Bond a lien from time of signa-
ture.— When any official bond is executed by any
county treasurer, or any person acting as such, the
property of said treasurer, or any person so acting,
as well as the security or securities on said bond,
shall be bound from the time of the execution
thereof, for the payment of any and all liability
arising from the breach of said bond. Acts 1876,
p. 16.
No Lien on Property Held in Trust. — Where property
is held in trust it is not subject to an execution issued
[131]
§ 573
DUTY OF COUNTY TREASURER
§ 576
against trustees as principal and surety on a county
treasurer's bond, notwithstanding at the time the bond
was executed such trustees were the apparent owners of
the land. Hurst v. Commissioners, 110 Ga. 33, 37, 35 S.
E. 294. As to when persons are considered trustees, see
§ 3780.
Priorities. — Where effort is made to arrest execution on
property because it is encumbered by a security deed, but
it is not alleged that such deed is anterior in date to the
bond of the treasurer, such effort will be unavailing. Rob-
erts v. Dancer, 144 Ga. 341, 347, 87 S. E- 287.
§ 573. (§ 457.) Appointees to fill vacancies must
give bond. — The bonds of appointees to fill va-
cancies 'shall be likewise in his discretion, taking
into consideration the amount that may come in-
to their hands, and for double such amount.
SECTION 3.
Duty of County Treasurer.
§ 574. (§ 458.) County funds.— All county funds
are to be paid to, and disbursed by, the county
treasurer, except such as may be specially excepted
by law, and then to be collected and disbursed as
specially directed.
As to receipt and disbursement of funds, see 9 Cum.
Dig. 723; 10 Enc. Dig. 712. As to deposits in state de-
positories, see § 578 (1).
Mandamus— As will be seen from the annotations which
follow in this note, mandamus will lie to compel the per-
formance of the duties required by this section. — Ed. Note.
Failure to Disburse Money Illegally Borrowed. — Where
the authorities in charge of the finances borrowed money
for county purposes without authority of law, and the
money thus unlawfully borrowed was received by the
county treasurer as county funds, he is liable for fail-
ure to disburse the money. Mason v. Commissioners, 104
Ga. 35, 30 S. E- 513.
The public-road fund provided for in § 696 is a county
fund within the meaning of this section and payment by
the commissioners to the county treasurer may be com-
pelled by mandamus. Board v. Clark, 117 Ga. 288, 291, 43
S. E. 722.
Proceeds of County Bonds. — An ordinary who receives
the proceeds of county bonds may be compelled by man-
damus to turn them over to the county treasurer. Aaron
v. German, 114 Ga. 587, 40 S. E. 713.
Same — How Affected by Contract. — In . view of this sec-
tion and § 576 mandamus was not granted a county treas-
urer against county commissioners to compel delivery to
him of balance of purchase price of bonds sold by them
to a bank, under contract that proceeds should be left
on deposit. Smith v. Hodgson, 129 Ga. 495, 59 S. E. 272.
Fund raised by private donation, for court-house, han-
dled by ordinary and not paid into treasurer, not a county
fund in sense used in this section and § 576, and not de-
mandable by treasurer. Worth County v. Sykes, 2 Ga.
App. 175, 58 S. E. 380.
Money from Loans — Not County Funds.— In the present
case the treasurer received the borrowed money to meet
the ordinary expenses. He paid it except for the current ex-
penses of the county, and at the end of the year, when the
taxes came in, paid off the loans; but in handling the
money derived from the loans he was not handling county
funds, within the meaning of this section. Hall v. Greene,
119 Ga. 253, 254, 45 S. E- 69.
§ 575. (§ 459.) Office, where kept. — He must
keep his office at the county-site, or at some place
within one mile of the court-house.
As to where officers of state must reside, and how long
to hold office, see § 261.
§ 576. (§ 460.) Duty of county treasurers. — It is
their duty —
1. To diligently collect from all officers and
others all county dues.
2. To examine the minutes and execution dock-
ets of the different courts of the counties, to de-
mand and receive all moneys appearing to be due
thereon, and to institute proceedings against de-
faulters.
[ 132 ]
3. To pay without delay, when in funds, all or-
ders, according to their dates (or other debts
due) ; and when not in funds, as hereinafter pre-
scribed.
4. To take a receipt on each order when paid
and carefully file it away.
5. To keep a well-bound book in which shall be
entered all receipts, stating when received, who
from, and on what account, and all amounts paid
out, stating when paid, to whom, and on what ac-
count.
6. To keep a well-bound book in which shall be
entered a full description of all county orders, or
other forms of indebtedness, as they are pre-
sented; to record a copy of the orders of the ordi-
nary levying county taxes.
7. To exhibit to the first grand jury at the first
session of the superior court of each year, a full
statement of the condition of the county treasury
up to that time, and on the second Monday in
January, annually, to file with the ordinary a full
statement of his account, accompanied by his
vouchers for the preceding year, together with
his estimate of the indebtedness of the county for
the ensuing year, and the means of providing
therefor, and to place his books before either of
said bodies for examination when called upon.
8. To appear before the ordinary or grand jury
to render an account of his actings and doings as
county treasurer, and to exhibit his books and
vouchers whenever notified.
9. To publish at the door of the court-house,
and in a public gazette, if there is one published
in the county, a copy of his annual statement to
the ordinary. Act 1825, Cobb, 211. Act 1838, Cobb,
216. Acts 1859, p. 25.
See § 574 and notes thereto. See also 10 Enc. Dig. 712.
When Office of Treasurer Abolished. — The duties of the
depository of funds of the county of Murray under a
local act (1919, p. 706) are the same duties which were dis-
charged by the county treasurer under this section be-
fore the latter office was abolished in the said county.
Bank v. Hagedorn Constr. Co., 156 Ga. 348, 358, 119 S.
E. 28.
Paragraph 2 — Necessity for Formal Warrant. — Upon the
refusal to pay, mandamus will lie against the treasurer of
the county to compel payment of any part of a salary
when by law it is payable and after it has been demanded,
although at the time of making demand no formal war-
rant had issued therefor. Clark v. Eve, 134 Ga. 788, 68
S. E. 598.
Paragraph 6 — Use in Evidence. — Where a county treas-
urer failed to comply with the requirements of this sec-
tion and § 582, and where an execution was issued by the
ordinary against him as a defaulter, he could not take
advantage of his own negligence so as to substitute evi-
dence of a lower character for the record which it was
incumbent upon him to make jcut and deposit. Price v.
Douglas County, 77 Ga. 163, 3 S. E- 240.
Paragraph 8 — Power of Ordinary to Cite Treasurer to
Appear. — Under this section and §§ 585 and 4796 (7) the
ordinary has jurisdiction to cite the county treasurer to
appear before him for a settlement of his accounts, as well
as to order that moneys in his hands be paid out by him
to the proper persons and upon his failure to pay, to issue
Smith v. Outlaw, 64 Ga.
an execution for such default.
677.
Paragraph 9 — In General. — The publication of the state-
ment required to be made under this section is neither
directly nor remotely connected with the business or any
proceeding of the court of ordinary. Howard v. Earle
County, 104 Ga. 669, 672, 30 S. E. 880.
Same — Statement Made to Ordinary as County Officer. —
The treasurer's annual statement mentioned in this sec-
tion is not required to be made to the court of ordinary,
but to the ordinary as a county, not a judicial of-
ficer. It is required to be made to him because, where
provision is not otherwise made by law, he is the officer
charged with the care and conduct of the public business
§ 577
COUNTY ORDERS
§ 582
of the county. Howard v. Early County, 104 Ga. 669, 671,
30 S. E. 880.
Same — Payment for Publication. — There is no statute of
force in this State which authorizes payment to be made
from a county treasury for the publication in a news-
paper of the annual statement required of county treas-
urers by this section, and § 6592, forbids the enactment
of any such a statute. Howard v. Early County, 104 Ca.
669, 30 S. E. 880.
§ 577. (§ 461.) Books, "etc., furnished by the
county. — All book.s and stationery the county
treasurer may require must be furnished at the ex-
pense of the county.
§ 578. (§ 462.) Books, etc., when deposited. —
When the books of such treasurer are full, they,
together with the vouchers of other files relating
thereto, or connected with the office, must be de-
posited in the office of the ordinarj^ and after-
wards be part of his records.
§ 578(1). County treasurer may deposit in State
depository. — The treasurers of the several counties
of this State are hereby authorized to deposit in
any bank or banking institution which has been
designated by law as a depository for the funds
of the State the "county funds which may come in-
to their hands as county treasurers. Acts 1917, p.
199.
§ 578(2). Bond additional. — Any depository of
the State funds so selected by the county treasurer
to be a depository of the county funds shall, in
addition to the bond given to the State as security
for the money of the State deposited in said bank,
give to the county treasurer a bond in an amount
sufficient to protect him from any loss, which
bond shall be payable to him, and shall be condi-
tioned to fully account to him for all county
moneys that may be deposited by him as such
treasurer under the terms of this Act. Acts 1917,
p. 199.
§ 578(3). Interest. — The said county treasurers
are hereby authorized to arrange with the bank to
pay interest on the money so deposited with said
bank, but thejr are not required so to do, and any
money received by them as interest is hereby re-
quired to be paid by them into the treasury of the
county. Acts 1917, pp. 199, 200.
SECTION 4.
County Orders.
§ 579. (§ 463.) Order in which the county debts
are paid. — When there are funds enough to pay
all outstanding orders and other forms of in-
debtedness due, which the treasurer may be au-
thorized to pa}r, they may be paid indiscriminately
without regard to their dates; when there is
enough to pay all dated anterior to some par-
ticular dates, all such may be likewise paid in-
discriminately; when there is not enough to pay
all of equal degree, they shall be paid ratably; un-
der all other circumstances, they shall be paid in
the order of their dates.
As to construction of term "ordinary current expenses,"
see § 865.
Where warrants for current expenses, which have been
paid by another from the proceeds of a loan which he
made to the county (to the rights of the several holders
of which warrants such person has become subrogated),
and other warrants issued by the county commissioners,
aggregate a sum larger than that which the county has
in its treasury, raised from the revenues of the year in
which the various liabilities were incurred, payment must
be made in accordance with the rules prescribed in this
section and §§ 410 and 580, 581, 582. Butts County v. Tack-
son Banking Co., 129 Ga. 801, 60 S. E- 149.
§ 580. (§ 464.) County orders. — No order shall
be paid until after five days from its date and de-
livery, unless otherwise specially ordered; the
ordinary may furnish in the meantime the county
treasurer with a full statement of all orders issued,
which shall be by him immediately registered, and
when so registered shall be paid according to law
without further notice to the treasurer previous to
the time of payment.
See § 579 and notes thereto.
Mandamus to Compel Furnishing of Statement. — Manda
mus issued requiring by virtue of this section the ordinary
to furnish a statement of all orders drawn by predecessor
in office, on fund derived from sale of court house bonds.
Aaron v. German, 114 Ga. 587, 40 S. E- 113.
Failure to register a warrant drawn by the ordinary of
a county may subordinate the payment of the warrant to
that of others duly registered, but it does not render the
warrant void. Neal Loan, etc., Co. v. Chastain, 121 Ga.
500, 49 S. E. 618.
§ 581. (§ 465.) Failure to present county orders.
— If any person holding county orders shall fail
to present them by the first day of December of
each year to the county treasurer for payment,
they shall be postponed to all orders which were
so presented and not paid for want of funds.
See § 579 and notes thereto.
§ 582. (§ 466.) Want of Funds.— On the first day
in December of each year such Treasurer and the
Commissioners of Roads and Revenues or other
authority having control of finances of the county
together shall make an entry of all orders entitled
to payment which were not so presented for pay-
ment, and what orders not of equal dignity have
been paid instead, in whole or in part, and what
others are entitled to payment before such non-
presented orders. Persons holding such orders,
who present them without receiving their pay be-
fore said day, may have the Treasurer annual^
to mark thereon "Presented," the day of presenta-
tion, and not paid for want of funds. Such county
orders, when legally issued and duly presented as
herein provided and not paid for want of funds,
shall bear interest at the legal rate from date of
entry of presentation and non-payment for want
of funds. Provided, however, interest shall not
be paid on such warrant or warrants after July 1st
following the year in which presented unless such
warrant or warrants are again presented and pay-
ment refused for want of funds. The Treasurer
or keeper of county funds shall endorse on the
warrant the words, "Presented for payment; no
funds on hand with which to pay same. This the
day of 19..." Provided that the
provisions of this Act shall not apply to warrants
outstanding at the time of the passage of this Act.
Acts 1920, p. 65.
See §§ 576, 579 and notes thereto.
Editor's Note.— Prior to the amendment of this section by
the Acts 1920, p. 65, no mention was made of "The Com-
missioners of Roads and Revenues or other authority . . ."
That part of this section beginning in the third sentence
"Such county orders, . . ." to the end of the section
is new, with the said amendment.
In considering this amendment pertaining to interest,
the court, in Hartley v. Nash, 157 Ga. 402. 407, 121 S. E.
295, said this act is in no way binding in the present case,
since the obligation upon which the alleged past-due in-
terest is sought to be recovered in the present case ante-
dated that act. But the enactment of this law may be
considered as indicating the understanding of the Gen-
eral Assemblv as to the true law and as a reaffirmation
[133]
§ 583
FINAL SETTLEMENTS, FEES, EXPENSES, SALARIES
§ 588
of the doctrine stated in the case of State v. Speer, 33
Ga. App. 93, that counties are liable for interest upon
their debts. Hartley v. Nash, 157 Ga. 402, 407, 121 S. E-
295.
§ 583. (§ 4G7.) County orders negotiable.— All
county orders are negotiable by delivery or in-
dorsement, and the indorser liable according to
the terms of his indorsement, as in commercial
paper, but no such transfer can take place so as
to prevent a treasurer from setting off any sum
the the payee may 'be due the county at the date
of the order.
It was held under this section that where a county in-
curs a lawful liability for a current expense, and issues
its warrant on the treasury for its payment, and subse-
quently procures another to pay the same out of a loan
which he makes to the county, upon disaffirmance of the
illegal loan by the county the lender is subrogated to the
rights of the warrant holder whose warrant was paid out
of the proceeds of the illegal loan. Butts County v. Jack-
son Banking Co., 129 Ga. 801, 60 S. E. 149.
§ 584. (§ 468.) Treasurer shall not purchase or-
ders at a discount. — Such treasurer is forbidden to
buy up any county orders or claims for less than
their full par value, either by himself or agents,
directly or indirectly, or by paying for them in
property at an estimated value above its true value.
SECTION 5.
Proceedings Against Defaulting Treasurer.
§ 585. (§ 469.) Treasurer failing to pay over
money. — When the county treasurer at any time
fails to pay any order which is entitled to pay-
ment, or other legal demand upon him, or to pay
any balance that may be in his hands to his suc-
cessor, or to the person entitled to receive it, the
ordinary may issue execution against him and his
sureties for the amount due, as against a default-
ing tax-collector. Act 1825, Cobb, 212.
As to proceedings against defaulting treasurer, see 9
Cum. Dig. 726.
Purpose of Legislature. — Construing this section and §
1187 together, it was the evident purpose of the legislature
that an execution issued against a county treasurer should
proceed in the same manner as such execution against a
tax collector, both as to the principal and interest, and
that the fi. fa. properly issued against defaulting treas-
urer for interest at twenty per cent. Lamb v. Dart, 108
Ga. 602, 609, 34 S. E- 160; McFarlin v. Board, 153 Ga.
766, 775, 113 S. E- 447.
Power to issue execution provided in this section against
a defaulting county treasurer is vested in the ordinary,
or in county commissioners if the fiscal affairs of the
county are administered by them. Roberts v. Dancer,
144 Ga. 341, 87 S. E- 287; Arthur v. Commissioners, 67 Ga.
220.
Same — Treasurer Absconding. — It was held under this
section that the ordinary was authorized to issue execu-
tion against a county treasurer, who had absconded, for
money in his hands. Jones v. Collier, 65 Ga. 553.
Execution to Be Issued in Name of County. — An execu-
tion provided by this sectioii against a defaulting county
treasurer should be issued in the name of the county;
but if issued in the name of the ordinary for the use of
the county, such irregularity is an amendable defect, and
does not render the process void. Roberts v. Dancer, 144
Ga. 341, 87 S. E. 287.
Notice in Writing. — It is not necessary that notice in
writing be given before the issuing of the execution, pro-
vided in this section. Roberts v. Dancer, 144 Ga. 341, 343,
87 S. E- 287; Price v. Douglas County, 77 Ga. 163. 3 S.
E. 240.
Execution Issued Summarily — Jury Trial. — Such an ex-
ecution within the meaning of this section is issued sum-
marily, and the defendant then has a right to test the
questions involved by a trial by jury. A defendant who
has had a full and complete trial after the issuance of
execution, has no cause to complain that he did not have
it before. Arthur v. Commissioners, 67 Ga. 220, 227.
Power of Ordinary to Cite Treasurer to Appear for Set-
tlement of Accounts, etc. — Under this section and § 576,
pars. 1 and 3, and § 4796 the ordinary has jurisdiction to
cite the county treasurer to appear before him for a set-
tlement of his accounts, as well as to order moneys in his
hands to be paid out by him to the proper persons, and
upon his failure to issue execution for such default. Smith
v. Outlaw, 64 Ga. 677.
SECTION 6.
Final Settlements, Fees, Expenses, and Salaries.
§ 586. (§ 470.) Books must be turned over to
successor. — In case of the resignation, expiration
of the term, or removal from office, such treas-
urer, or, if he is dead, his personal representative,
must state his accounts, and deliver all the money,
books, papers, and property of the county to his
successor, as other officers do, who must report
the same immediately to the ordinary.
See § 587 and notes thereto.
As to jurisdiction of ordinary to audit and examine the
accounts of county officers, see § 4796, par. 7.
§ 587. (§ 471.) Final settlements.— When such
county treasurer, or his representative, has made
a fair and full statement of all his accounts and
liabilities as such, an exoneration of himself and
sureties, together with the details of such settle-
ment, must be entered on the minutes of the court
of ordinary, and be final, except for fraud.
The provisions of this section and § 586 are not appli-
cable to the annual accounting and settlement made by
the tax collector with the county commissioners. Read
v. Glynn Co., 145 Ga. 881, 90 S. E- 60.
§ 588. (§ 472.) Fees of county treasurer, -r-
County treasurers in the several counties of this
State are entitled to receive two and one half per
cent, commission for receiving, and two and one
half per cent, commission for paying out, all sums
up to ten thousand dollars; and one and one fourth
per cent, for receiving, and one and one fourth
per cent, for paying out, the excess over ten thou-
sand dollars, for receiving and paying out county
funds: Provided, that in no case shall the com-
pensation of county treasurers exceed the sum of
three thousand dollars per annum.
For making his returns to the grand jury . .$ 1.00
For making his returns to the ordinary .... 1.00
Act 1874, p. 20; 1890-1, p. 76.
Section Not Exclusive. — Since the amendment in 1914 to
art. 11, § 3, par. 1 of the constitution (§ 6600) the legis-
lature may fix the compensation of county treasurers, and
if such a local act is passed, it is paramount to this sec-
tion and the treasurer is paid according to the terms of
the act instead of the terms of this section. See Phillips
v. Hanks, 154 Ga. 244, 245, 113 S. E- 806.
"County Funds." — The law providing compensation for
county treasurers is found in this section, and by refer-
ence to that it will be observed that the county treasurer
receives compensation only for paying out "county funds"
and for certain other services. McFarlin v. Board, 153
Ga. 766, 775, 113 S. E- 447.
Moneys received from the sale of bonds lawfully issued
by a county for the erection of a court-house are "county
funds" within the meaning of this section. Chattooga
County v. Megginson, 139 Ga. 509, 77 S. E. 579.
Moneys received from a temporary loan or loans to
supply casual deficiencies of revemie, lawfully made, are
"county funds" within the meaning of this section. Wil-
liams v. Sumter County, 21 Ga. App. 716, 94 S. E. 913.
Paying Accrued Interest. — A treasurer, for making a dis-
bursement of county funds in paying accrued interest on
bonds, is entitled to commissions under this section. Chat-
tooga County v. Megginson, 139 Ga. 509, 77 S. E. 579.
Right to Commission for Disbursing Money Illegally
Borrowed.— Where a county treasurer receives from the
county authorities, by virtue of his office, money which has
been illegally borrowed by them, and disburses the same
for current expenses of the county, and the illegal loans are
repaid from money coming from taxes or other legitimate
sources, he is not entitled to commissions for handling the
[134]
§ 589
DUTIES AND FEES OF COUNTY SURVEYOR
§ 601
illegally borrowed money, to be paid out of county funds
proper. Roberts v. Dancer, 144 Ga. 341, 87 S. E. 287; Wil-
liams v. Sumter County, 21 Ga. App. 716, 94 S. E. 913.
How Commissions to Be Computed.— The commissions al-
lowed to county treasurers under this section, are to be
computed upon their annual receipts and disbursements and
not semi-annual returns as provided by § 413. Burks v.
Commissioners. 99 Ga. 181, 25 S. E. 270.
Local Act of 1875, p. 286 is constitutional and fixed compen-
sation of county treasurer. Moore v. Houston County, 124
Ga. 898, 53 S. E. 506.
§ 589. Premiums on treasurer's bond in certain
counties. — In addition to the salary now provided
by law for county treasurer it shall be within the
power of county commissioners in all counties
having a population of seventy thousand or over
to provide for the giving of bonds of such county
treasurers, duly signed by a surety company; and
if thus given, it shall be within the power of the
county commissioners to cause the premiums to
be paid out of the public moneys of such counties.
Acts 1904, p. 96. Acts 1923, p. 52.
Editor's Note. — The effect of the amendment of 1923
(Acts 1923, p. 52) was to reduce the requisite population,
which was prior to this amendment seventy- five thousand,
to seventy thousand.
§ 590. Salaries in certain counties. — The county
treasurers of counties having a population of
seventy-five thousand or over, according to the
last census of the United States, shall be paid a
salary of three thousand dollars per annum, to be
paid monthly by the county commissioners of
said county. Acts 1907, p. 111.
See §§ 6017 (7) et seq.
§ 590(1). Necessary expenses in certain coun-
ties.— In the counties in this State which have a
population of more than 150,000, and in which the
county treasurer is paid a salary, the county
Commissioners or other tribunal having in charge
county matters may provide for and pay out of
the county funds the clerical and other necessary
expenses of the county treasurer office. Acts
1925, pp. 266, 267.
ARTICLE 2.
County Surveyor and His Fees.
SECTION 1.
Election, Oath, and Bond.
§ 591. (§ 473.) How elected. — County surveyors
are elected, commissioned, qualified, and removed
as clerks of the superior courts are, and hold their
offices for two 3^ears.
§ 592. (§ 474.) Failure to elect. — In case there is
a failure to elect a person who is commissioned
and qualified at the regular time, or a vacancy oc-
curs, the ordinary must appoint such surveyor,
until the vacancy is filled according to law.
As to the jurisdiction of the ordinary when sitting for
county purposes, see § 4796.
§ 593. (§ 475.) When appointed by the court. —
If a county surveyor derives his authority from
appointment, he needs no commission beyond the
order of such ordinary entered on his minutes, of
which appointment the Governor of the State
must be informed without delay.
§ 594. (§ 476.) Oath and bond. — Before entering
on the duties of his office, besides the oath re-
quired of all civil officers, he must take the fol-
lowing: 'T, , swear that I will, to the best of
my skill and knowledge, discharge the duties of
surveyor of county, and that I will not ad-
measure, survey, or lay out any land in my capacity
as such, or knowingly permit or cause it to be
done, without a warrant first obtained for that
purpose. So help me God." He shall also, at
the same time, give bond and security in the sum
of one thousand dollars. Act 1847, Cobb, 217.
§ 595. (§ 477.) May be removed. — Whether ap-
pointed or elected, besides the causes of removal
which apply to all officers, he may be removed
by the ordinary for want of capacity, on the same
proceeding before him, and by him to be decided,
that officers are removed in the superior court.
§ 596. (§ 478.) One for each county.— There
must be one for each county, and he is empowered
to appoint one or more assistants or deputies, for
whose conduct he is responsible. Act 1783, Cobb,
665. Act 1784, Cobb, 670.
As to persons ineligible to hold any civil office, see §
258.
§ 597. (§ 479.) Must take an oath.— When such
an assistant is appointed he must take the same
oath the surveyor takes, and the fact of the ap-
pointment must, at the same time, be entered on
the minutes of the ordinary.
SECTION 2.
Duties and Fees of County Surveyor.
§ 598. (§ 480.) Office, where kept.— The county
surveyor may keep his office at his place of abode,
if within the limits of the county.
§ 599. (§ 481.) Duties.— It is his duty—
1. To punctually observe and carry into effect all
such orders as he may receive from the officer who.
may lawfully command him.
2. To admeasure and lay off dower, to parti-
tion lands, to make resurveys, to give plats of all
surveys, and to administer all oaths required by
law in such cases.
3. To survey county lines and district lines, or
other surveys, in which his county may be inter-
ested, whenever required by the ordinary.
4. To execute all surveys required by the rule
of any court of competent jurisdiction.
5. To keep a well-bound book in which shall be
entered plats of all surveys made by him, with a
minute of the names of the chain-bearers, when
executed, by whose order and to whom plat de-
livered, if any; which book shall belong to his
office and be turned over to his successor, and
when full shall be deposited in the office of the
ordinary. Act 1785, Cobb, 672. Act 1838, Cobb,
215. Act 1783, Cobb, 668.
As to duty to assist commissioners appointed for road
construction, see § 646.
§ 600. (§ 482.) Fees. — When surveys are made
for private or corporate benefit, the fees are to be
paid by the person, or persons, or corporation who
orders the survey; when by order of the ordinary,
out of the county funds; and when by rule of
court, unless otherwise agreed upon, they are to
be taxed in the bill of costs, and shall have the
effect of a judgment' lien upon the land surveyed,
if not paid by the party bound for costs.
§ 601. (§ 483.) Payment of fees.— If after a
[135]
§ 602
CORONERS
§ 612
county surveyor has made a survey for any per-
son, who neglects to pay him, such surveyor upon
making oath before the ordinary of his county of
the performance of such service and its value, such
ordinary shall issue a fi. fa. in the name of the
ordinary, for the use of such surveyor, against
such defaulter, who may defend himself therefor,
in the same manner as persons against whom exe-
cutions issue who detain county funds.
As to right to file affidavit of illegality, see § 524.
§ 602. (§ 484.) Surveys, when evidence. — Sur-
veys or plats of land made by the county sur-
veyor, under order of court, and on notice to all
the parties, of lands within his county, signed by
him officially, and stating the contents, courses,
distances, of any land surveyed by him, are pre-
sumptive evidence of the facts, if all the requi-
sites of the law touching such surveys and the
reports thereof are complied with.
As to rules of Superior Courts as to surveys, see §§
6312-6316.
A survey made by others than the county surveyor, is
not admissible in evidence, unless proved by the parties
who made it; the affidavit of such persons on the survey
is not sufficient proof, and such affidavit, the persons
making it not being sworn as witnesses in the pending
trial, can not be received as evidence of anything on that
trial. Maples v. Hoggard, 58 Ga. 315.
§ 603. (§ 485.) Where there is no surveyor. —
When there is no county surveyor, any competent
person, a citizen of the county, may perform his
duties, when specially required, if first sworn to
do the same skillfully, faithfully and impartially,
to' the best of his knowledge; or, in default of such
person, the county surveyor of an adjoining county
may officiate.
§ 604. (§ 486.) Persons acting. — Persons
performing such service are en the same
footing as county surveyors as to the special serv-
ice rendered, and are personally liable as such sur-
veyors are officially.
§ 605. (§ 487.) When surveyor disqualified. —
When any county surveyor is interested in any
survey to be made, the judge of the superior
court or the ordinary of the county in which the
land is located, upon the application of any party
in interest, shall appoint a competent, disinter-
ested surveyor to make the survey, or the order
may, in his discretion, be directed to the surveyor
of any adjoining county. If the surveyor ap-
pointed is not a county surveyor, he shall, before
entering on said survey, subscribe before some
judicial officer of the county the oath now re-
quired of county surveyors. Act 1882-3, p. 104.
§ 606. (§ 488.) Such surveyor's rights.— The
rights, powers, and duties of the surveyor so ap-
pointed shall be the same as those of the county
surveyor, and the return of such surveyor shall
have the same force and effect as other surveys.
§ 607. (§ 489.) False survey.— When any county
surveyor, or other person acting as such, has
knowingly surveyed land as vacant land which is
not, or so made any other false survey, he is guilty
of a misdemeanor.
§ 608. (§ 490.) Fees of county surveyors. —
County surveyors' fees are as follows, to wit:
For surveying a town lot and returning a
certificate thereof $ 1.25
For surveying a tract of land of or under
one hundred acres 3.50
For each hundred acres after the first 1.00
For making a plat, recording, advertising,
and transmitting the same to the secre-
tary of State's office 1.25
For entering a caveat, advertising, and giv-
ing a certified copy thereof 2.00
For attending trial of the same 1.00
For each postponement, to be paid by the
postponing party 60
For recording judgment and giving certified
copy thereof 60
For entering an appeal and giving certified
copy thereof , 1.25
For a resurvey of land by order of court, of
or under one hundred acres, for the
first one hundred acres 3.50
For ever}'' one hundred acres after the first . . 1.00
For every other resurvey of the same 1.00
For making and certifying a plat thereof and
transmitting the same 1.25
Running line between counties, districts, or
making new lines, per day, he fur-
nishing the chain-bearer and provisions. . 8.00
For each plat of homestead, affidavit and re-
turn 5.00
For each additional plat where more than
one lot 3.00
Act 1792, Cobb, 350. Acts 1870, p. 68.
As to fee for aiding special road commissioners, see §
646.
For full treatment of this subject in general, see 4
Cum. Dig. 137; 3 Enc. Dig. 594.
ARTICLE 3.
Coroners.
§ 609. (§ 491.) How elected. — Coroners are
elected, commissioned, qualified, and removed as
clerks of the superior courts are, and hold their
offices for two years.
§ 610. (§ 492.) Ordinaries may appoint. — The
ordinaries appoint coroners on the same terms
and in the same manner that they do county
surveyors, which appointments take effect as
those of county treasurers.
§ 611. (§ 493.) Oaths.— Before entering on
the duties of his office, besides the oath required
of all civil officers, he must take the following:
"I swear that I will well and truly serve the
State of Georgia, in said office, and faithfully
and truly execute all writs and precepts to me
directed, or which I may lawfully execute, when
placed in my charge, and return the same ac-
cording to the best of my knowledge, skill, and
judgment; that I will in no case knowingly use
or exercise my office illegally, corruptly, or un-
justly, and that I will not, under any pretense,
take, accept, or enjoy any fee or reward pertain-
ing to my office, other than such as are allowed
by law; but that I will, in all things touching
the duties of my office, demean myself honestly,
fairly, and impartially, according to the best of
my ability. So help me God."
As to the additional oath required of public officers, see
§ 269.
§ 612. (§ 494.) Bond. — He must likewise, at
the same time, give bond and surety in the sum
of five hundred dollars, which may be for a
[136]
§ 613
COUNTY MANAGER FORM OF GOVERNMENT
§ 615(7)
greater or less amount, according to the local
law now or hereafter in force. He is liable for
retaining moneys collected, or otherwise failing
to do his duty, as sheriffs are, and is subject to
the same proceedings. Act 1823, Cobb, 539.
§ 613. (§ 495.) Additional bond.— When a
coroner has to act in the place of a sheriff, gen-
erally or specially, the ordinary may require of
him an additional bond, in such sum and with
such, sureties as in his discretion he may think
sufficient to meet the contingency.
§ 614. (§ 496.) Shall serve process. — When a
sheriff is disqualified, and it does not appear upon
the face of the proceedings, or he or his deputy
refuses to perform a service, if any person makes
affidavit thereof, the clerk of the court from which
it issues shall place the process in the hands of
the coroner for execution, and may compel its re-
turn to his office for such purpose.
As to special officer to serve rule on sheriff where no
coroner, see § 5353. As to service when sheriff a party,
see §§ 5571, 6019.
Not Applicable to Justices Courts. — The rule of this sec-
tion is intended to be confined to the service of such
processes as issue from a court in which the sheriff is a
ministerial officer, and not to justice courts. Hayden v.
Atlanta Sav. Bank, 66 Ga. 150, 152.
Necessity of Affidavit. — Where an entry, made by a cor-
oner upon an execution which is not directed to him, is
relied upon to save from dormancy the judgment from
which such execution was issued, it must appear that be-
fore the entry was made an affidavit has been made in
accordance with § 496 of the Political Code. Baldwin v.
Hudson, 103 Ga. 96, 29 S. E. 601.
Service by De Facto Coroner. — Process directed to one
who is coroner de facto, and executed by him, is good.
Gunby v. Welcher, 20 Ga. 336.
Improper Levy Dismissed on Motion. — Where an exe-
cution is not directed to the coroner, and no affidavit was
filed as required by this section, a levy by the coroner
should be dismissed on motion. Blance v. Mize, 72 Ga.
96. See also Baldwin v. Hudson, 103 Ga. 96, 29 S. U. 601.
§ 615. (§ 497.) Inquests. — Tt is the duty of the
coroner to take inquests as provided in the Penal
Code.
See Penal Code. §§ 1337 et seq and notes thereto.
4 Cum. Dig. 138; 3 Enc. Dig. 595.
See
CHAPTER 9A.
County Manager Form of Government.
§ 615(1). "Board" to mean Board of Commis-
sioners.— For the purpose of this Act the word
"Board" shall mean Board of County Commis-
sioners of Roads and Revenue, unless otherwise
required by the context. Acts 1922, p. 83.
§ 615(2). County manager government created.
—A uniform system of count}'- government by
county commissioners to be known as the County
Manager Form of County Government, be and
the same is hereby created and provided for all
the counties in this State, which may require a
County Manager Form of County Government, to
be governed by the general law hereby enacted
which shall be of uniform operation in and equally
applicable to all such counties. Acts 1922, p. 83.
§ 615(3). Governing body; Board and Manager.
— The County Manager Form of County Govern-
ment hereby created and provided shall consist of
a Board of County Commissioners of Roads and
Revenues composed of five members, with a
County Manager as the chief executive officer
thereof; but such manager shall not be a member
of such board. A majority of the board shall
constitute a quorum for the transaction of all
business and a majority of the board must concur
in order to pass an order, or let any contract, or
grant or allow any claim against the county, and
their acts on all such matters shall be duly entered
on the minutes of the board. Acts 1922, pp. 83, 84.
§ 615(4). Jurisdiction and powers. — The Board
of County Commissioners of Roads and Revenues
hereby created, shall have exclusive jurisdiction
over and control of all county matters, such as
public roads, bridges, the working of convicts,
private roads, county finances, the levying and
collection of taxes for county purposes, the man-
agement, control over and disbursing of county
funds, the erection, repair, and maintenance of
public buildings, the supervision over and control
of, and exclusive jurisdiction over and in all mat-
ters wherein jurisdiction is now vested in the or-
dinaries of this State in counties in which there is
no board of county commissioners of roads and
revenues. That the board shall be vested with all
the rights, powers and authority formerly vested
in the inferior courts of this State prior to the
Constitution of 1868 when sitting for county pur-
poses, except calling elections, which shajl be by
the ordinary, and matters pertaining to education,
health and such other matters as have been by
general law vested by the Legislature in other offi-
cers or tribunals, or as herein limited, extended,
amplified or modified. Said Board shall constitute
a court for the trial of road defaulters and of any
and all matters pertaining to county matters
formerly vested in the inferior courts of this
State, or now vested in the ordinaries of this State
in counties in which there are no boards of com-
missioners of roads and revenues, when sitting for
county purposes; shall have the right and power
to issue all necessary writs and summon parties or
witnesses before them, and shall have the power
to punish for contempt by fine or imprisonment
in the same manner as the courts of ordinary of
this State; that the sheriff of the county, or his
deputy, may be required to attend upon the meet-
ings of the board, and shall serve all writs, sub-
poenas, and other processes of such court, and the
sheriff shall receive for such services such com-
pensation as is provided by law for like service in
the superior court. Acts 1922, pp. 83, 84.
§ 615(5). Conduct of business.— The board shall
exercise such powers as may be construed as
legislative or judicial only when sitting in regular
or special session with a quorum of the board
present. Acts 1922, pp. 83, 85.
§ 615(6). Exercise of powers. — The board shall
exercise such powers as may be construed as
executive only by or through the county manager
or other duly appointed officers or agents. Acts
1922, pp. 83, 85.
§ 615(7). Sessions — Chairman and vice-chair-
man.— The board shall hold their regular sessions
once every month on a regular day set by the
board in the court house of the county, and may
adjourn from day to day until their business is
finished; and extra sessions may be held at any
time on the call of the chairman or of any three
members of the board when in the judgment of
the board the interests of the countv demand it.
[137]
§ 615(8)
COUNTY MANAGER FORM OF GOVERNMENT
§ 615(15)
At the first meeting in January following the gen-
eral election at which new members of the board
shall have been elected, the board shall organize
the new board by electing one of their members
chairman. They shall also elect one of their num-
ber vice-chairman. Acts 1922, pp. 83, 85.
§ 615(8). Records, etc. — The board shall keep a
full and correct minutes of all its official acts and
doings in a minute book kept for such purposes,
a book of receipts and disbursements, a general
ledger, a warrant book, a book containing a com-
plete list of all the county property, real and per-
sonal, and shall make a record therein of all sales
or other disposition of the same; also a road
register in which shall be kept a record of all pub-
lic roads and also of all private roads granted or
ordered kept open by the board, particularly de-
scribing such roads, and shall make a record of all
new roads which shall be hereafter granted, or or-
dered kept open in accordance with law. The
board shall also keep on file all paid warrants and
vouchers and other papers necessary to show a
complete record of all transactions of the county.
Acts 1922, pp. 83, 85.
§ 615(9). Ex-officio clerk. — The county manager
shall be ex-officio clerk of the board, but the board
may elect a deputy clerk if they deem it advisable.
The clerk shall keep the books of the board and
make a record of all the acts and doings of the
board in a minute book kept for such purpose, and
also keep all other records and accounts of the
board and perform such other acts and duties as
may be required by the board not inconsistent
with the provisions of this Act or the laws of this
State. Acts 1922, pp. 83, 86.
§ 615(10). Reports. — The board and county
manager, jointly, shall publish semi-annual re-
ports within fifteen days after the first day of Jan-
uary and July of each year once each in the offi-
cial gazette of the county, and also in a daily
paper, if there be one published in the county, con-
taining a full and complete statement of the fi-
nances of the county during the preceding half
year, and showing all receipts and from what
sources derived, and all disbursements and for
what purposes paid out, and such reports shall
not be mere ledger balances, but shall be in such
manner and form as to show plainly the revenues
of the county, as well as the cost of the county
government in every branch. Acts 1922, pp. 83, 86.
As to penalty for failure to conform to section, see P. C,
§ 309 (2).
§ 615(11). Financial statement. — The board shall
make a full and complete written statement of
the financial condition of the county to the grand
jury of the county at the spring and fall terms of
the Superior Court of the county, a copy of which
report shall be kept in file in the office of the
board. Their office and records shall be subject to
examination of the grand jury, their committee,
or any person whom they may specifically empower
to report to the same or a succeeding grand jury,
who shall submit in writing a report of the con-
dition of such office and the books and files there-
of, and specify any neglect of duty or anything
wrong done by the board or any member, officer
or employer thereof. The grand jury shall have
an audit made, once each year, of all the books,
accounts, files and records of the board, such ex-
amination to be made by a certified public account-
ant who shall be employed by the grand jury or
the foreman thereof under the authority of the
grand jury, which shall fix his compensation and
the term of his employment. Acts 1922, pp. 83,
86.
§ 615(12), Disbursements. — All warrants drawn
on the county, shall be drawn and signed by the
county manager and countersigned by the chair-
man or vice-chairman of the board before being
paid by the treasurer or depository of the county.
All amounts shall be numbered and shall show for
what and on what fund drawn, and the paid
originals and the book of stubs carefully pre-
served and kept on file in the office of the board.
The chairman and vice-chairman of the board and
the county manager shall each give a bond in such
sum as the board may prescribe in a good and
solvent fidelity and guaranty company payable to
the county conditioned for the faithful discharge
of the duties of his office. The amount of such
bonds and the securities thereon shall be first ap-
proved by the ordinary of the county and then
filed and recorded by the ordinary as the bonds of
other county officers. Certified copies of such
bonds shall be kept on file in the office of the
board. Acts 1922, pp. 83, 87.
§ 615(13). Roads; construction plans. — The board
shall in regular session or special session called for
such purpose, make general plans, specifications
and requirements prescribing the manner and style
in which the public roads of the county shall be
constructed and repaired, and such plans, specifica-
tions or requirements shall not be modified or
changed except on the action of the board in like
manner as the same were adopted. The board
shall furnish the county manager and the count}'"
superintendent of roads each with a copy of such
plans, specifications and requirements, and re-
quire the public roads of the county to be built
and repaired in accordance therewith; provided,
however that the provisions of this section shall
not apply to roads under the supervision of the
State Highway Department. Acts 1922, pp. 83, 87.
§ 615(14). County manager eligibility — Appoint-
ment and term. — Removal. — The county manager
shall be a man of good moral character at least
twenty-five years old and with practical experi-
ence in matters of business and finance and in the
management of labor. He shall be approved by
the board for a term of two years from the first-
day of January immediately succeeding a general
election for members of the board, and all vacan-
cies shall be filled only for the unexpired term.
The board shall have power to discharge the
county manager at any time for cause of which
they shall be exclusive judges, but shall do so by
appropriate resolution setting out such cause
which shall be entered upon the minutes of the
board. The county manager shall not be the
county superintendent of roads (or county warden)
except in counties having less than ten thousand
population according to the last United States de-
cennial census in which counties the board may
combine the office of the county manager with
that of county superintendent of roads (or county
warden) if they deem it advisable. Acts 1922, pp.
83, 88.
§ 615(15). Duties of manager. — The county man-
[138]
§ 615(16)
COUNTY MANAGER FORM OF GOVERNMENT
§ 615(22)
ager shall have charge of all the business matters
of the county and shall have supervision of the
work of the county in the building and repair of
roads, bridges, buildings, or of any other work of
the county, under the general supervision1 of the
board, subject to the provisions of section 615(32).
He shall, with the advice and consent of the board
appoint the county warden, or superintendent of
roads, and all other officers and laborers of the
county engaged in the construction and repair of
roads, bridges, buildings, or other work of the
county over which the board has jurisdiction, and
shall have supervision over all such officers and
laborers, and shall have power to discharge such
officers or laborers at any time for cause, with the
right of appeal by such officers to the board. He
shall be the chief purchasing and selling agent of
the county for all animals, machinery, implements,
materials and supplies of all kinds used in the con-
struction or repair of buildings, roads, bridges and
for the use of convicts, but all purchases and sales
by him shall be subject to the ratification of the
board. He shall do every act or thing necessary
or proper in the discharge of his duties as county
manager, subject to the general supervision of the
board, the board shall check up all the accounts,
acts and doing of the count}- at least once every
month. Acts 1022, pp. 83, 88.
§ 615(16). Superintendent of roads. — The county
superintendent of roads (who shall also be the
convict warden of the county), shall have charge
of the construction and maintenance of all the
roads and bridges of the count}-, under the super-
vision of the county manager. He shall be a
practical road builder, skilled in the building and
repair of roads and bridges, and especially in the
grading and repairing of roads under the soil and
climate conditions existing in the county. He
shall devote his entire time to the duties of his
office and shall not engage actively in any other
line of business which will interfere with the duties
of his office; provided, however that the provisions
of this section shall not apply to roads under the
supervision of the State Highway Department.
Acts 1922, pp. 83, 89.
§ 615(17). Attorney. — The board shall have the
right and authority to employ a county attorney
when necessary, also to employ special council to
represent the county in matters where, in their
opinion, the same may be necessary or advisable
to protect the interests of the county. Acts 1922,
pp. 83, 89.
§ 615(18). Salaries.— The board shall fix the
salaries and compensation of all its officers and
employees (except its chairman and vice-chair-
man), which shall be paid out of the county funds
as provided by law. Acts 1922, pp. 83, 89.
§ 615(19). Compensation of board. — The salary
or compensation of the members of the board shall
be fixed by the recommendation of the grand jury
of the county once every two years at the ses-
sion of the Superior Court next preceding the gen-
eral election at which members of the board are
elected, and such compensation shall be paid from
the county treasury in monthly installments on
warrants drawn on the treasurer or depositor}^ of
the county, as in the case of other claims against
the countv, and thev shall receive no other com-
pensation of any kind whatsoever, but the grand
jury may fix the compensation of the chairman and
vice-chairman of the board different from that of
the other members of the board. Should no ac-
tion be taken by the grand jury at such term of
the court, the compensation for such officers shall
remain as fixed by the grand jury for the past two
years. Acts 1922, pp. 83, 89.
§ 615(20). Commissioners; eligibility. — No per-
son shall be eligible to be a member of a board of
commissioners of roads and revenues under the
provisions of this Act who is not at least twenty-
live years old and shall have been a citizen of the
county for two whole years next preceding his
election and is also a freeholder of the county, and
shall be of good moral character and experience
in matters of business and finance. No member
of such board shall be eligible to hold any other
county office while a member of such board. Acts
1922, "pp. 83, 90.
§ 615(21). Terms of office.— The term of office
of members of the board shall be four years and
until their successors are elected and qualified.
The terms of office of three members of the board
shall expire at one time, and the terms of office of
the other two members of the board shall expire
two years thereafter, so that the terms of office of
all the members of a board expire as hereinbefore
provided, as the first election held under the pro-
visions of this Act,, three members of such board
shall be elected for a term of two years and two
members of the board shall be elected for a term
of four years, and the members so elected shall de-
termine by lot which of said members shall hold
for a term of two years and which for a term of
four years. The board of county commissioners
of any county in this State in office under the local
Act of force in such county at the time this Act
is put into effect in such county, shall have until
the expiration of their terms of office and until
their successors shall be elected and qualified un-
der the provisions of this Act, and their successors
shall be elected at the general election next pre-
ceding the expiration of their term of office and
shall be elected for such term as will make the
terms of office of the members of such boards ex-
pire in the manner hereinbefore provided. As
many commissioners as may be necessary to make
such board of commissioners for such county have
five members, shall be elected at the next gen-
eral election after the adoption of this Act by such
county. Acts 1922, pp. 83, 90.
§ 615(22). Vacancies. — All vacancies in the
membership of the board of commissioners oc-
curring in less than one year of the expiration of
such term of office shall be filled by appointment
of a duly qualified person by the ordinary of the
county, and such appointee shall be commissioned
and hold office until his successor is elected and
qualified; and that all vacancies occurring in the
membership of the board more than one year prior
to the expiration of the term of office shall be filled
by a special election called by the ordinary of the
county in the same manner as in the case to fill
vacancies in other county offices, and the person
so elected shall be commissioned and hold office
until the expiration of said unexpired term and un-
til his successor is elected and qualified. The ex-
pense of any such special election shall be paid
139 ]
§ 615(23)
NOTARIES PUBLIC
§ 616
out of the general funds of the county. Acts 1922,
pp. 83, 91.
§ 615(23). Oath of office. — The commissioners
elected or appointed under the provisions of this
Act shall each be commissioned by the Governor
for the term of office for which he shall be elected
or appointed, as the case may be, and each shall,
before entering upon the duties of his office, take
and subscribe, in addition to the oath provided by
law for all civil officers of this State, the follow-
ing oath, to-wit, "I do solemnly swear that I will
well and truly discharge the duties of commis-
sioner of roads and revenues for county, in
all matters which require my official action, to the
best of my knowledge and skill, and I will so act
as in my judgment will be most conducive to the
welfare and best interests of the entire county, so
help me God." Acts 1922, pp. 83, 91.
§ 615(24) Uniform county manager form of
government provided; operation of Act. — This
Act shall be a general law to provide a uniform
county commissioner's law for all such counties in
this State as may require a commission form of
county government composed of a board of
county commissioners of roads and revenues for
such county with a county manager as the chief
executive officer thereof, to be known as the
County Manager Form of Government, and shall
not prevent any county in this State from having a
county commissioners form of county government
by local Act as now provided by law, provided
such local Act shall not provide a county manager
form of government for such county; and this Act
shall not go into effect in any county of this State
except upon a majority vote of the qualified voters
of the county, and the operation of this Act in any
county adopting the same shall be suspended and
terminated in like manner upon a majority vote of
the qualified voters of the county, and upon the
suspension of the operation of this Act in any
county, the local Act of force in such county shall
automatically be revived and shall have full force
and effect in such county as if its operation had
not been suspended in such county by the adop-
tion of this Act by such county; provided, how-
ever, that the members of the board of commis-
sioners of such county in office under the provi-
sions of this Act at the time of the suspension of
the operation of this Act in such county, shall hold
office and act as the commissioners of such county
under the provisions of such local Act of such
county until the expiration of their respective
terms of office under the provisions of this Act,
and until their successors shall be elected and
qualified under the provisions of such Act for such
county; provided, further, that the operation of
this Act in any county of this State shall not be
suspended and terminated by any election held
within two full years after this Act shall be put in-
to effect in such county. If the ordinary of the
county shall be in charge of the affairs of such
county at the time of the adoption of this Act in
such county, the ordinary shall take charge of the
affairs of such county upon the supervision of
the operation of this Act in such county as now
provided by law for counties having no county
commissioners. Acts 1922, pp. 83, 92.
§ 615(25) Establishment of county manager
government; initiative petition; election; ballots.
— A commission form of county government com-
posed of a board of commissioners of roads and
revenues with a county manager as the chief ex-
ecutive officer thereof, shall be established in any
county 'in this State requiring such form of county
government and the same shall be abolished in
any county in the following manner, to-wit:
When a petition signed by one-fifth of the
qualified voters of any county shall be filed with
the ordinary of the county, requesting that an
election be called for the purpose of submitting to
the qualified voters of the county the question
whether a county manager form of government
composed of a board of commissioners of roads
and revenues with a county manager as the chief
executive officer thereof, shall be established or
abolished in such county, the ordinary shall call
an election to be held within not less than thirty
dajrs nor more than sixty days after the filing of
such petition. In all elections submitting the
question whether the county manager form of
commissioners' government shall be established or
abolished in a county, those voting for the estab-
lishment of such form of government for such
county or to retain such form of government for
such county, shall have written or printed on their
ballots the words "For County Commissioners
with a County Manager for county," nam-
ing the county and those voting against the estab-
lishment of such form of government, or to
abolish such form of government for such county,
shall have written or printed on their ballots the
words "Against County Commissioners with a
County Manager for county, naming
the county. The election shall be held in the man-
ner prescribed by the laws of this State for the
holding of elections for the election of members of
the General Assembly of this State, and the re-
turns from the several voting precincts of the
county, consolidated as provided by law in the
case of such elections. The returns of the board of
consolidation shall be reduced to writing and
signed by a majority of the members of such
board and filed in the office of the ordinary of the
county, and the ordinary shall record the same
upon the minutes of the Court of Ordinary of the
county. A certified copy thereof from the office of
the Court of Ordinary shall be established as evi-
dence of the returns of such board of consolida-
tion in any court or other tribunal of this State.
The expense incident to the holding of such elec-
tion shall be paid out of the general funds of the
county. Acts 1922, pp. 83, 93, 94.
CHAPTER 10.
Notaries Public.
§ 616. (§ 498.) Notaries public, by whom and
when appointed. — The power to appoint notaries
public is vested in the judges of the superior
courts, and may be exercised by them in vaca-
tion as well as in term time. Acts 1868, p. 130.
See §§ 625 (1), 4649, 6526.
As to appointment of notaries public for state at large,
see § 625 (1).
Proof of Appointment. — Where a writing has been ad-
mitted to record upon the probate of an alleged notary,
and it is proved that the minutes fail to show an order
appointing him, the burden is upon the party offering the
writing to show that the alleged officer was legally ap-
pointed. Perrv v. Kennon, 16 Ga. App. 545, 85 S. E. 821.
140 ]
§ 617
NOTARIES PUBLIC
§ 624
§ 617. (§ 499.) Oath of notaries public— Before
entering on the duties of their office, they shall
take and subscribe before the clerk of the superior
court the following oath, which shall be entered
on his minutes: "I, , do solemnly swear, or
affirm, that I will well and truly perform the du-
ties of a notary public for the county of ,
to the best of my ability; and I further swear, or
affirm, that I am not the holder of any public
money belonging to the State, and unaccounted
for. So help me God." Acts 1868, p. 130.
As to oath of notaries appointed by state librarian, see
§ 625 (6).
§ 618. (§ 500). Their term of office.— They hold
their offices for four years, revocable at any time
by said judge, at the end of which time, if con-
tinued, they must be renewed on the minutes. The
clerk must issue to them certificates of their ap-
pointment and qualification, and keep a register
of their names. Acts 1824, Cobb, 210. Acts 1868,
p. 130.
As to term of notaries appointed by librarian, see §
625 (2).
Holds Over until Successor Appointed. — Commercial notaries
public are public officers, whose duties, oaths and powers are
prescribed by law. They are appointed for four years, but
upon the expiration of that time, a commercial notary
and his office do not cease, but he continues to hold his
position until a successor is appointed, or he is removed.
Smith & Bondurant v. Meador, 74 Ga. 416.
Notarial Acts after End of Term. — If, after the expira-
tion of the term for which a commercial notary was ap-
pointed and before that fact was discovered, he attested an
affidavit, both parties acting in good faith, if not an offi-
cer de jure, he would, in such transaction, be an officer
de facto, and his attestation would not be void. Smith &
Bondurant v. Meador, 74 Ga. 416.
§ 619. (§ 501.) Age and character of notary. —
A notary must be twenty-one years old, or an at-
torney-at-law, and of good moral character.
§ 620. (§ 502.) Where theif office may be ex-
ercised.— Their notarial acts can only be exercised
in the county of their residence and appointment.
Removal from the county vacates the office.
As to notaries at large appointed by librarian, see §
625 (4).
§ 621. (§ 503,) Authority of notaries. — They
have authority —
1. To take the acknowledgments of all writings
relating to commerce or navigation, and to wit-
ness such deeds and papers as they are permitted
to by law.
2. To demand acceptance and payment of all
commercial paper, or paper entitled to days of
grace, and to note and protest the same for non-
acceptance or non-payment.
3. To certify to all official acts when required.
4. To administer oaths in all matters incident to
them as commercial officers, and all other oaths
which are not by law required to be administered
by a particular officer.
5. To exercise all other powers incumbent upon
them by commercial usage or the laws of this
State. Acts 1863-64, p. 59.
See generally, S Cum. Dig. 1058; 9 Enc. Dig. 722. As
to proof of notarial acts, see § 5822 and notes. As to ac-
knowledgments, see 1 Cum. Dig. 154; 1 Enc. Dig. 114.
As to protest, see 2 Enc. Dig. 427. As to affidavits, see
1 Cum. Dig. 244; 1 Enc. Dig. 191.
Affidavits — In General. — At one time there appears to
have been doubt as to the power of notaries to attest af-
fidavits in this State. It was removed by the Act of 1863,
codified in this section, paragraph 4. This statute, how-
ever, was properly in part declaratory of a power already
[141]
recognized. Simpson v. Wicker, 120 Ga. 418, 421, 47 S.
E- 965.
Same — Accusation in Criminal Court. — An affidavit is
sufficient as a basis for framing an accusation in the crim-
inal court of Atlanta, although made before a commer-
cial notary public. Mitchell v. State, 126 Ga. 84, 54 S.
E. 931. See also Wright v. Davis, 120 Ga. 670, 676, 48 S.
E. 170; Shuler v. State, 125 Ga. 778, 54 S. E. 689.
Whether such an affidavit would furnish a sufficient
foundation for the issuance, by the judge of the criminal
court, of a warrant to arrest the accused person, quaere.
Mitchell v. State, 126 Ga. 84, 54 S. E. 931.
Same — Claim under Section 5157. — Under paragraph 4 of
this section, a commercial notary public is authorized to
administer the oath provided for in § 5157, to one claim-
ing property as not subject to an execution levied thereon.
Singletary v. Watson, 136 'Ga. 241, 71 S. E. 162.
Same — Bail in Trover. — 'Affidavit to require bail in
trover may be made, in this state, before a notary pub-
lic." Jowers v. Blandy, 58 Ga. 380, 384.
Same — Disqualification of Notary. — An affidavit, probat-
ing a mortgage, taken before the attorney of the mort-
gagee, who is a notary public, is not a legal affidavit,
and a mortgage recorded on such probate is not legally re-
corded. Nichols v. Hampton, 46 Ga. 253. See 8 Cum.
Dig. 1058.
Days of Grace.— In Dalton City Co. v. Haddock, 54 Ga.
585, the language of the second paragraph of this section
was held to be strongly indicative that days of grace are
not allowed on notes not payable at a bank or a broker's
office.
§ 622. (§ 504.) Not lawful to issue attachments,
etc. — It shall not be lawful for commercial nota-
ries public to issue attachments or garnishments
or to subscribe affidavits or approve bonds for the
purpose of issuing attachments or garnishments
Acts 1893, p. 117.
See § 5056 and notes.
Use as Testimony. — Although an affidavit is void as an
affidavit verifying the petition for attachment under § 5088.
the judge can consider the same as "testimony," and, if
sufficient for this purpose, grant the attachment. Price v.
Cohen, Son & Co., 118 Ga. 261, 45 S. E. 225.
Garnishment Proceedings. — An affidavit, as the basis for
the issuance of the summons of garnishment, subscribed to
before a commercial notary public, is defective, and the gar-
nishment proceedings are thereby rendered void ab initio.
Thompson v. Reynolds Auto So., 31 Ga. App. 574, 121 S.
E. 528.
§ 623. (§ 505.) Notaries seal and register. — For
the authentication of their notarial acts each
notary must provide a seal of office, which shall
have for its impression his name officially, and
the name of the State and county for which he
was appointed. After the first of January, 1863, a
scrawl shall not be a sufficient notarial seal. No
seal is required to his attestation of deeds. He
must keep a fair register of all his notarial acts
signed by him, together with the date of the trans-
action. Acts 1863-4, p. 59.
See 9 Enc. Dig. 723.
Bill in Equity.— In attesting an affidavit to a bill in eq-
uity, a notary public need not affix his seal. It was not such
a notarial act, under this section as requires a seal for its
authentication. Chappell v. Boyd, 56 Ga. 578.
Affidavit for Bail in Trover. — The notary need not attest
an affidavit for bail in trover under his notarial seal or
any other seal. Only notarial acts require a seal. Jowers
v. Blandy, 58 Ga. 380, 384.
Probate of Deed. — It is not necessary that a notary pub-
lic shall affix his seal to the probate of a deed by a sub-
scribing witness. Nichols v. Hampton, 46 Ga. 253.
The taking of the probate of a deed is not exactly its at-
testation, but it is part of it — stands in the place of it, and
comes within the spirit of this provision. Nichols v. Hamp-
ton, 46 Ga. 253, 257.
§ 624. (§ 506.) Fees of notaries public. — The fees
of notaries public are as follows, to- wit:
For administering an oath in any case $ 30
For each attendance on any person, to make
proof as a notary public, and certifying
to the same 1 00
For everv other certificate 50
§ 625
EXAMINATIONS OF STATIONARY ENGINEERS, ETC.
§ 627(1)
It shall not be lawful for any notary public or
other officer in this State, whose duty it is under
the law to protest, note, or give notice to en-
dorsers, sureties, or makers of negotiable papers,
such as notes, checks, drafts, mortgages, or other
evidence of debt, to charge for such service a
greater sum than one dollar and fifty cents.
Registering must be paid for by the party who has
the service performed. The fees for all official
acts which the notary is allowed to perform are
the same as those prescribed for any other officers
who are likewise permitted to perform them. Acts
1792, Cobb, 352. Acts 1898, p 106. 1904, p. 97.
§ 625. (§ 507.) Fees of clerks.— The clerk of the
superior court shall be entitled to two dollars for
all service's in issuing certificates of appointment
of commercial notaries public, administering the
oath and recording the same, which sum shall be
in full of all costs in such cases. Acts 1878-9,
p. 80.
As to salary of clerk and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-
tion or more, see § 6017 (5) ; counties having between 44,000
and 60,000, and from 70,000 to 150,000 population, see §
6017 (12); counties of from 60,000 to 70,000 population, see
§ 6017 (25).
§ 625(1). Notaries public for State at large. Ap-
pointment by state librarian. — Power to appoint
notaries public for the State at large is hereby
vested in the State Librarian. Acts 1916, p. 137.
As to appointment of notaries generally, see § 616.
§ 625(2). Term of office, revocable. Act in any
county. — Notaries public appointed by the State
Librarian shall hold office for four years, revoc-
able at any time by the State Librarian; and said
notaries shall have authority to act in any county
in the State of Georgia. Acts 1916, p. 137.
§ 625(3). Fee, certificate, registery, librarian's
compensation. — The applicant for appointment
shall pay to the State Librarian a fee of $2.00, and
the State Librarian shall issue a certificate of ap-
pointment to such applicant, file the petition and
order of appointment in the office of the State
Librarian and shall register the name of such
notary in a book to be kept in the office of the
State Librarian for that purpose. The fee herein
provided for shall be retained by the Librarian as
compensation for services rendered in connection
with said appointment. Acts 1916, p. 137.
§ 625(4). Duties, powers, etc. New and ad-
ditional class of notaries. — The qualifications,
powers, duties, fees and liabilities of such notaries
shall be the same as those prescribed by law for
notaries public appointed by judges of the superior
court, except that they are authorized to act in any
county in the State of Georgia, instead of only in
the county of their residence and appointment;
this Act not being intended in any manner to re-
peal or modify the law with reference to notaries
public appointed by judges of the superior court,
but to create another class of notaries with power
to act in any county in Georgia. Acts 1916, pp.
137, 138.
§ 625(5). Official signature. — The official signa-
ture of notaries appointed under this Act shall in-
dicate that they are for the State at large. Acts
1916, pp. 137, 138.
§ 625(6). Oath of office.— The State Librarian
is authorized and empowered to administer to
notaries appointed under this Act the following
oath, to-wit: "I, , do solemny swear or
affirm that I will well and truly perform the duties
of a notary public for the State of Georgia, to the
best of my ability; and I further swear or affirm
that I am not the holder of any public money be-
longing to the State, and unaccounted for. So
help me God," which shall be taken and sub-
scribed by such notary before entering upon the
duties of his office, before said Librarian or any
officer authorized to administer oaths. Acts 1916,
pp. 137, 138.
CHAPTER U.
Commissioners of Roads and Revenues.
§ 626. Salary of commissioners of road and
revenues. — The commissioners of roads and
revenues of all counties in the State having a
population of seventy-five thousand, or over, ac-
cording to the census of the United States, shall
each receive and be paid for their services as such
commissioners the sum of three hundred dollars
per annum. Acts 1904, p. 96.
§ 626(1). Clerks in certain counties.— Boards of
Commissioners of Roads and Revenues of Coun-
ties in this State with a population of over 14,200
and not over 14,325 shall be authorized to provide
duties for, fix a salary and elect a clerk for such
board; provided such duties of said clerk shall not
be inconsistent with any duty now required of him
by law, and, provided, further, such salary shall
not exceed $300 per annum, payable monthly by
warrant drawn on the county treasury as all
County warrants are now drawn and paid. Acts
1921, p. 177.
§ 627. Vacancies in office of commissioners. —
When a vacancy occurs in the office of commis-
sioners of roads and revenues in any county in
which the special act creating a board of commis-
sioners of roads and revenues for said county
makes no provision for succession to fill such va-
cancy, the judge of the superior court of the
county shall have power to appoint a successor to
fill the unexpired term. Acts 1898, p. 93.
CHAPTER HA
Board of Examiners of Stationary Engineers
and Firemen.
§ 627(1). Appointment, eligibility and term of
office. — The Commissioners of Roads and Reve-
nues in the several counties in the State of Geor-
gia shall at their discretion, elect a Board to
consist of three practical and skilled stationary
engineers, to be known as the Board of Examiners
of Engineers and Firemen in the respective coun-
ties in which they are appointed. The term of of-
fice of the members of said Board shall be three
years; but, at the first election, one member shall
be elected for one year and one member shall be
elected for two years, and the third member shall
be elected for three years. Said Commissioners
shall act on the subject of electing or appointing
said Board, at the first regular meeting after the
approval of this Act; but if for any reason such
action should not then be taken, said Commis-
sioners may act at a subsequent meeting. Acts
1910, pp. 112, 113.
[142]
§ 627(2)
ROADS, BRIDGES, FERRIES, TURNPIKES, ETC.
§ 629(1)
§ 627(2). Oath of examiners. Chairman and
secretary. — Said Board of Examiners of Engi-
neers, shall take and subscribe an oath before the
Judge of the Superior Court or Ordinary of said
county, to faithfully discharge their duties. Said
Board upon taking the oath and qualifying as
aforesaid, shall organize and elect one of their
members chairman, and another secretary, and all
official acts of the Board shall be kept and re-
corded by the secretary in a book of minutes. Acts
1910, pp. 112, 113.
§ 627(3). Operators of stationary engines and
boilers to be notified. — Said Board of Examiners
shall give public notice of their organization and
of their time and place of meeting, and shall notify
all persons engaged in running or operating
stationary engines or steam boilers, in their re-
spective counties, to come forward and obtain
license before proceeding to further carry on such
business or calling. Acts 1910, pp. 112, 113.
§ 627(4). Examination of engineers and firemen.
— -Said Board of Examiners of Engineers shall
have the power to issue license to all engineers or
firemen who have heretofore been examined and
licensed by any other Board of similar kind or
character, in said counties, but all new applicants,
and all who have not been examined, shall be ex-
amined by said Board, touching their competency
and fitness to do the work either as engineers or
firemen, to run and operate any stationary engine
or steam boiler in the county in which said ex-
amination is had. Said Boards in their respective
counties may make rules and regulations for the
examination of engineers and firemen, which when
approved by the Commissioners of Roads and
Revenues or Ordinaries for said county, shall be
of force and binding upon said Board and all per-
sons holding or applying for license under it. Acts
1910, pp. 112, 114.
§ 627(5). License to engineers and firemen. —
No person shall operate or run any stationary
steam engine or boiler in any county operating un-
der such Board so created, without a license from
said Board; and no person shall employ or cause
to be employed, any engineer or fireman to run or
operate a stationary steam engine or boiler in any
county in which such Board of Examiners has
been created, who has not secured a license as
herein provided. Acts 1910, pp. 112, 114.
As to provisions in penal code for violation of this section,
see P. C, §§ 528 (12), (13).
§ 627(6). License fee, compensation of board. —
Said Board of Examiners of Engineers shall have
the right to charge with the approval of the said
Commissioners of Roads and Revenues or Ordi-
naries so creating them, a license fee, to be paid by
all applicants, and such fee shall be in lieu of all
other compensation to said Board. Acts 1910, pp.
112, 115.
§ 627(7). Reports of examiners. — Said Board of
Examiner's of Engineers shall make quarter^ re-
ports of their actings and doings to the Commis-
sioners of Roads and Revenues of their respective
counties, and of all fees collected by them, and the
names of all persons licensed by them as engineers
and firemen. Acts 1910, pp. 112, 115.
§ 627(8). Restrictions in licenses. — The Board
of Examiners of Engineers as herein provided for,
shall have the right to place such restriction upon
the licenses issued by them by grading said license
in as many classes as they in their judgment shall
see proper; provided, the restrictions so made
shall in no wise conflict with the rules and regu-
lations adopted by them, under the approval of the
Commissioners of Roads and Revenues as herein
provided. Acts 1910, pp. 112, 115.
§ 627(9). Examiners to prosecute violators. —
Said Board of Examiners shall see that this law is
complied with, and shall prosecute all violators of
said law. Acts 1910, pp. 112, 116.
See P. C, §§ 528 (12), (13).
§ 627(10). Ordinaries in counties having no
commissioners. — In counties where there is no
Board of County Commissioners, the Ordinaries
of such counties shall be clothed with all authority
which is conferred by this Act upon the Board of
County Commissioners in any county in which
there is such a Board and charged with all the
duties of such a Board under this Act. Acts 1910,
pp. 112, 116.
§ 627(11). To what counties applicable. — This
Act shall apply only to those counties of the State
having a population of 70,000 or more according to
the census of 1910. Acts 1910, 112, 116; 19J2,
p. 158.
CHAPTER 12.
Roads, Bridges, Ferries, Turnpikes, Causeways,
Crossings, Etc.
ARTICLE l.
Public Roads.
SECTION 1.
Classification of Roads and Districts.
§ 628. (§ 508.) Rule of the road.— The rule of
the road requires travelers with vehicles, when
meeting, to each turn to the right.
See 8 Cum. Dig. 138; 8 Cum. Dig. 712.
"When a vehicle which is able to turn either to the right
or the left meets a street-car, which under its franchise can
travel only along the one fixed way marked out by its track,
the vehicle meeting the street-car should, in the absence of
any reason preventing, itself turn to the right side." Athens
R., etc., Co. v. McKinney, 16 Ga. App. 741, 745, 86 S. E. 83.
§ 629. (§ 509.) Public roads.— All roads laid out
for public use by an Act of the General Assembly,
if not otherwise provided, or by an order of the
ordinary, are declared to be public roads.
See 10 Cum. Dig. 636. See also 10 Enc. Dig. 613. See
§ 430. As to meaning of "highway" or "road," as in-
cluding bridges, see § 5.
Not Only of Public Road. — "In making this declaration
the legislature did not intend to declare the roads estab-
lished by the General Assembly, or by the order of court,
were the only public roads, but the purpose was to make
all public roads belonging to either of these classes pub-
lic roads of the State without reference to other consid-
erations." Southern Railway Co. v. Combs, 124 Ga. 1004,
1012, 53 S. E. 508.
"It was never intended by this act to abrogate the well-
settled rule of the common law, that a public road might
come into existence by prescription." Southern Railway
Co. v. Combs, 124 Ga. 1004, 1012, 53 S. E. 508.
§ 629(1). Post roads deemed public roads; main-
tenance.— All roads that are now or may hereafter
be used as post reads which are part or parts of
[143]
§ 630
PUBLIC ROAD REGISTER
§ 637
rural postal routes shall be deemed public roads,
and it shall be the duty of the County Commis-
sioners, or the Ordinary, as the case may be, to
construct and maintain said roads in a reasonably
passable condition as other public roads of the
county are maintained. Acts 1920, p. 234.
§ 630. (§ 510.) Size, extent, foot-logs, etc. — Pub-
lic roads shall be cleared of all trees, stumps,
grubs, and bushes, at least thirty feet wide, and of
such limbs of trees as ma}^ incommode horsemen
or carriages; stumps must be cut as nearly even
with the surface as possible, and the carriage-track
must be at least five feet six inches wide. And at
all places on said public roads, where water may
pond or flow, during any season, or for any
considerable period in each year, so as to prevent
the dry and convenient passage of pedestrians, the
road hands shall place foot-logs or other conveni-
ent passways; the same to be so constructed as 'to
be at all times above highwater mark at such
places. Acts 1799, Cobb, 943; Acts 1877, p. 14;
Acts 1800, Cobb, 945; Acts 1818, Cobb, 949.
§ 631. (§ 511.) Roads may be classified.— The
several ordinaries of this State, with the concur-
rence of a majority of the road commissioners of
their respective counties, shall designate such pub-
lic roads in their respective counties, as in their
discretion should be so designated, as second-
class roads. Acts 1870, p. 397.
Classification Not Final. — "These code sections (§§ 631-
633) conferred a discretionary power on the ordinary and
the road commissioners, and there is nothing to indicate
that the power of classification was exhausted upon a sin-
gle exercise of discretion, and that the classification when
once made prevented a reclassification so as to put a
second-class road into the first class, or a third-class road
into the second or first class." Buchanan v. James, 130
Ga. 546, 549, 61 S. E. 125. See notes of this case under §
640.
Where a public road, originally established as thirty feet
in width, has been classified by the county and road com-
missioners as a second-class road, pursuant to this and the
following section, it may by a subsequent classification by
them, be restored to its original width. Buchanan v. James,
130 Ga. 546, 61 S. E. 125.
Same — Limitation on Power. — If, on an application for a
public road, the road commissioners appointed to mark it
out define the width, by locating the lateral lines of the
road, and the road as defined by them is established by
the county commissioners, the width of the road can not be
increased simply by an order of classification. Buchanan
v. James, 130 Ga. 546, 61 S. E. 125.
§ 632. (§ 512.) Width of second-class roads. —
All roads so designated shall be cleared of all
stumps, trees, grubs, and bushes, at least twenty
feet, and of such limbs of trees as may inconveni-
ence horsemen or carriages; the stumps to be cut
as nearly even with the surface as possible, and
the carriage-track must be at least five feet and
six inches wide; said roads shall be managed ac-
cording to the road laws of this State, as far as
the same may be applicable. Acts 1870, p. 397.
See note to preceding section. As to mandamus to com-
pel compliance with standard, see § 5441.
§ 633. (§ 513.) Third-class roads.— Third-class
roads shall be cleared of all stumps, trees, grubs,
and bushes, at least sixteen feet wide, and of all
limbs of trees that may inconvenience horsemen
or carriages; the stumps to be cut as near the sur-
face as possible, and the carriage-track must be at
least five feet and six inches in width; and said
roads shall be changed, worked, and managed ac-
cording to the road laws of this State, as far as
the same may be applicable. Acts 1894, p. 100.
As to mandamus to compel compliance with standard, see
§ 5441.
§ 634. (§ 514.) Bridges and causeways. — All
bridges or causeways over small watercourses,
and causeways over swamps or lowlands, shall be
kept in repair by hands subject to work on roads;
the pieces shall be laid across the road at least six-
teen feet long, well secured, made fast, and
covered with earth. Acts 1818, Cobb, 949.
§ 635. (§ 515.) Road districts and apportionment
of hands. — The ordinaries must lay off their re-
spective counties into road districts, and apportion
the roads and hands so as to divide the labor and
expenses on accounlt of roads, causeways and
bridges, equally throughout said counties; all of
which proceedings must be entered on the
minutes. Acts 1818, Cobb, 946.
As to new counties, see § 843.
SECTION 2
Public Road Register.
§ 636. (§ 516.) Public road registers.— The
county commissioners, and the ordinaries where
there are no county commissioners, shall prepare
and keep in their offices, open to the inspection of
the public, a well-bound book, to be known as the
"Public road register," in which they shall have
entered a list of all the public roads and road dis-
tricts in the county subject to be worked at the
county expense. Said register shall correctly
show the length, and define the width of each
road, together with a general description of every
public road on said list; and shall also contain a
plat of each road, whenever such plat may be
necessar}' to clearly and accurately define its line.
Said register shall be altered from time to time by
said commissioners or ordinaries, as new roads are
established, or old ones altered or discontinued.
It shall be unlawful for the county authorities hav-
ing charge of working the public roads of the
county to work, directly or indirectly, any road or
part of road that is not found on said register, or
to continue to work any road or part of road after
the same has been stricken from said register by
said county commissioners or ordinaries. Acts
1890-1, p. 134.
See notes to §§ 637, 638.
Registration of Discontinuance. — The abandonment of a
public highway by mere non user does not work a forfei-
ture of the right to its use. An existing public road can
not be discontinued without the order of the ordinary or
county commissioners, where there are such commissioners,
based upon application and notice, and duly registered in
the proper office. Jones v. Williams, 70 Ga. 704.
§ 637. (§ 517.) Penalty for encroaching on reg-
istered road. — If any person shall encroach upon
any public road that has been registered as afore-
said, by erecting thereon, or upon any part there-
of, a fence or building, or part of any fence or
building or other structure, or if he shall in any
other manner appropriate to his own exclusive use
any part of any road registered as aforesaid, and
shall fail to remove such fence, building, or other
structure or encroachment upon the lines of such
registered roads, within two days after being noti-
fied to do so by any road overseer, superintendent
of roads, or road commissioner of the county, he
[144]
§ 638
ROADS; HOW LAID OUT, ALTERED, ETC.
§ 640
shall be guilty of a misdemeanor. Acts 1890-1, p.
134.
See Penal Code, § 546.
An indictment charging one with obstructing and en-
croaching upon a registered road is not supported by evi-
dence which shows that the road was laid out by a dis-
trict road commissioner and two citizens of the district who
acted with him, there being no proof whatever that the
road was "registered" as contemplated and provided by this
section. McGowan v. State, 124 Ga. 422, 52 S. E- 738.
§ 638. (§ 518.) Obstructing such road.— If any
person shall obstruct any road registered as afore-
said, by building a fence, or felling a tree, or cut-
ting a ditch in or across it, or any part of it; or
shall make or place in or across any such reg-
istered road, or part thereof, any obstruction ol
any kind which renders the use of said road unsafe
or inconvenient; or shall dig or plow up the sur-
face of any registered public road or remove any
dirt or rocks from the same; or shall fill with dirt
or obstruct any side ditch or drain of any public
road, such person shall be guilty of a misde-
meanor: Provided, that this section shall not pro-
hibit the duly authorized acts of the public officers
of the county. Acts 1890-1,' p. 134.
See Penal Code, § 547.
The provisions of this section are not violated where a
person or corporation places temporarily, with the written
permission of the county commissioners, a pile of cinders
in a public "registered" road. See, in this connection, Geor-
gia Ry., etc., Co. v. Tompkins, 138 Ga. 596, 598 (75 S. E.
664), and P. C, §§ 544, 545, 547. Bagwell v. Georgia R.,
etc., Co., 24 Ga. App. 15, 99 S. E. 712.
§ 639. (§ 519.) Objections by landowners. —
Whenever any landowner shall believe that the
lines of any public road registered as aforesaid en-
croach upon his property, he shall apply in
writing to the county commissioners, or to the
ordinary in counties where there are no county
commissioners, to re-establish the lines of said
road so far as the same touches his land, and no
work shall be done on said road, upon the part
thereof in dispute, until the issue thus raised has
been finally determined. If on such application
such landowner is dissatisfied with the decision
made by the commissioner or ordinary, he shall at
once petition such commissioners or ordinary to
issue a warrant directed to the sheriff of the
county to summon from the vicinage a jury of
freeholders to try such question of the true lines
of said road, and the subsequent proceedings
shall be the same as now prescribed in cases of
landowners aggrieved by reason of any road pro-
posed to be laid out through their lands: Pro-
vided, however, that this and the three preceding
sections shall not become operative in any county
until the grand jury of said county shall so re-
commend. Acts 1890-1, p. 134.
SECTION 3.
Roads; How Laid Out, Altered, or Discontinued.
§ 640. (§ 520.) Public roads, how laid out or
altered. — On application for any new road, or
alteration in an old road, the ordinary shall ap-
point three road commissioners, residing as near
where such road is intended to pass as possible;
and if they find it of public utility, they must pro-
ceed to mark it out, and make their report under
oath to such ordinaries that it was laid out and
marked conformably to law. Provided, however,
the Commissioners of the Coastal Highway Dis-
r 14
trict of Georgia, with the advice and concurrence
of the State Highway Engineer, may establish,
lay out under and extend, and make any altera-
tions and changes in the South Atlantic Coastal
Highway as may be fixed by special Acts, or by
resolutions of the said Commissioners. Act 1818,
Cobb, 947; Act 1925, p. 78.
See 10 Enc. Dig. 641; 11 Enc. Dig. 954: 10 Cum. Dig. 648;
11 Enc. Dig. 957
Editor's Note. — The county system of building publii
highways is independent of the state highway system as
provided in §§ 828 (1) et seq., and that system is independ-
ent of this system. See notes under § 828 (1).
The proviso at the end of the section dealing with the
Coastal Highway District was added by the amendment
1925 (Acts 1925, p. 78).
Method Not Exclusive as to Establishing. -The method
of laying out and establishing public roads, prescribed by
this section is not exclusive, but cumulative. Lee County
v. Mayor, 154 Ga. 550, 115 S. E. 107. As to altering, contra,
see Atlanta, etc.. Air Line Railroad Co. v. Wood, 48 Ga.
565.
The county authorities in charge of laying out and con-
structing public highways can accept lands dedicated by
their owners for public roads, and can open and build new-
public roads therein without complying with the code sec-
tions just cited. Lee County v. Mayor, 154 Ga. 550, 115 S.
E. 107.
Road Need Not Be Necessary. — It is not necessary to
show that the proposed alteration in the road is a public
necessity; it is sufficient to show that it is of public util-
ity. Barnard v. Durrance, 22 Ga. App. 8, 95 S. E. 372.
Not Inconsistent with Alternative Road Law. — This sec-
tion of the Political Code is not inconsistent with the al-
ternative road law, and must be complied with before a
new public road can be lawfully established in a county
wherein such alternative road law is operative. Howell v.
Commissioners, 118 Ga. 635, 45 S. E- 241; Barham v. Weems.
129 Ga. 704, 59 S. E. 803.
Can Not Proceed under Section 5206. — "In condemning
land for the establishment of a public road the counties
have no right to proceed under §§ 5206 et seq., but must
proceed under §§ 640 et seq." Mitchell County v. Hudspeth.
151 Ga. 767, 772, 'l08 S. E- 305.
Not Repealed by Acts of 1894, and 1900.— Sections 640-645
were not repealed by the Act of 1894 (§§ 5206 et seq.) nor
by the Act of 1900 (§§ 5243 et seq.). Hutchinson v. Lowndes
County, 131 Ga. 637, 62 S. E. 1048.
Who May Be Appointed Commissioners. — The appointing
authorities are allowed a discretion in the selection of such
commissioners; and it is not the intention of the law that
they shoidd appoint men without reference to their fitness
for the duties imposed upon them, merely because they live
nearer to the proposed road than others who are more com -
petent. Brown v. Sams, 119 Ga. 22, 45 S. E- 719.
The ordinary or county commissioners, in appointing com-
missioners to lay out a new road under this section, are
not limited to the regular road commissioners. Brown v.
Sams, 119 Ga. 22, 45 S. E. 719.
Road Presumed Thirty Feet Wide. — All public roads laid
out by an order of the board of roads and revenue, or b>
the ordinary, pursuant to this and the following section, in
the absence of anything indicating a lesser width, will be
presumed prima facie to be at least thirty feet in width.
Buchanan v. James, 130 Ga. 546, 61 S. E. 125.
Order Can Not Be Collaterally Attacked. — The order or
judgment of an ordinary, making or establishing an alter-
ation in a public road, stands until set aside, and can not
be collaterally- attacked. Crum v. Hargrove, 119 Ga. 471.
46 S. E. 626.
Description of Road. — In an application under this sec-
tion, for the establishment of a new road, the proceedings
before the county board of commissioners having exclusive
jurisdiction over the subject-matter shoidd describe the
location of the contemplated road with such particularity
as that the records of the county board of commissioners
will clearly designate to the ministerial officers charged
with the clearing and working of the road the particular
location intended to be established. Green v. Road Board
126 Ga. 693. 56 S. E. 59. See also Little v. Baskin, 135 Ga.
851, 70 S. E. 796.
Where neither the report of the commission nor the sub-
sequent order of the county commissioners marks out a
new road, the order is ineffectual to discontinue the old
road and establish the new one. Cotting v. Culpeper. 79
Ga. 792, 4 S. E. 388.
Where the order of the ordinary approving the return of
the commissioners and finally granting the petition for a
new road refers to the description of the road contained in
§ 641
ROADS; HOW LAID OUT, ALTERED, ETC.
§ 646(1)
the report of the commissioners, and where from the rec-
ord of the proceedings before the ordinary, taken all to-
gether, the road marked out can be accurately and definitely
located, such judgment is not objectionable for uncertainty.
Brown v. Sams, 119 Ga. 22, 45 S. E. 41. See also Barnard
v. Durrence, 22 Ga. App. 8, 95 S. E. 372.
Compliance with Report of Commission. — Where com-
missioners are appointed under the provisions of this section,
and proceed to mark out the new road along a route agreed
upon by themselves and the landowner, and make their re-
port, and the board of commissioners of the county pass
an order that the report thus made be adopted and that the
alteration be made conformably thereto, it is not competent
for the board of commissioners to have the new road con-
structed in a different location from that marked out; and
where they attempt to do so they should be enjoined. In-
man v. Bulloch County, 141 Ga. 150, 80 S. E- 635.
Remedy of Landowner. — The remedy of a person who will
be damaged by the appropriation or injury of his property
in the alteration and construction of the road is pointed out
by § 678. Barnard v. Durrence, 22 Ga. 8, 95 S. E. 372.
In an application for a new public road, a landowner
whose land is sought to be taken may, in response to the
notice served on him, urge before the ordinary (or county
commissioners, as the case may be) any legal objection to
establishing the public road, and the judgment of the or-
dinary (or commissioners) is reviewable by certiorari. At-
lanta, etc., R. Co. v. Redwine. 123 Ga. 736, 51 S. E- 724.
See also Ballard v. Jones, 148 Ga. 513, 97 S. E. 443.
Same — Injunction Proper. — It is error for the court to re-
fuse to enjoin the county authorities from proceeding to
condemn the land, there having been no compliance with
§§ 640 et seq. Ainslee v. Morgan County, 151 Ga. 82, 105
S. E. 836. See also Mitchell County v. Hudspeth, 151 Ga.
767, 108 S. E- 305; Decatur County v. Curry, 154 Ga. 378,
114 S. E. 341.
Where the evidence was undisputed that the road through
the plaintiff's premises was originally marked and laid out
by the road commissioners, twenty feet in width, and that
the county authorities were attempting to widen it so as
to embrace land of the plaintiff without first acquiring,
in the manner prescribed by law, the right to do so, the
court erred in refusing to enjoin the taking of a strip of
the plaintiff's land so as to widen the road beyond the lim-
its originally marked out. Buchanan v. James, 130 Ga.
546, 61 S. E. 125.
Same — Injunction Improper. — As the landowner's remedy
at law was ample, it was not erroneous to refuse to enjoin
the county commissioners from continuing a proceeding
under this section in advance of the hearing provided for
in § 641. Atlanta, etc., R. Co. v. Redwine, 123 Ga. 736, 51
S. E- 724; Hutchinson v. Lowndes County, 131 Ga. 637, 62
S. E. 1048; Ballard v. Jones, 48 Ga. 513, 97 S. E- 443.
§ 641. (§ 521.) Notice of application. — If such
ordinaries, on the investigation had, are willing
to grant such road, or make alteration in an old
load, they shall publish a citation for thirty days
at the door of the court-house, and in a public
gazette if there is one in the county, giving a
particular description of the new road or the
alteration, notifying all persons that on and after
a certain day therein named said new road or
alteration will be finally granted, if no good cause
is shown to the contrary.
See 10 Cum. Dig. 644; 11 Enc. Dig. 955. See notes to §§
640, 642.
§ 642. (§ 522.) Persons in possession to be
notified. — All persons, their overseers or agents,
residing on land which such road goes through,
except the applicants for the road or alteration,
must be at the same time notified in writing, per-
sonally or by leaving it at their most notorious
place of abode, that they may put in their claim
for damages or be forever after estopped.
See 10 Cum. Dig. 644; 11 Enc. Dig. 955.
No Presumption of Compliance. — An order of the com-
missioners of roads and revenues authorizing the widen-
ing of a public road and reciting "that notice of such wid-
ening had been published as required by law" furnishes no
evidence by presumption or otherwise that persons, their
overseers or agents, residing on the land through which
such road goes, were notified in writing as this section re-
quires. Fulton Countv v. Amorous, 89 Ga. 614, 16 S. E.
201.
Noncompliance Ground for Injunction. — Where no notice
is given as required by this section, a petition to enjoin the
condemnation of the land for the road should be sustained.
Decatur County v. Curry, 154 Ga. 378, 114 S. E. 341.
Effect of Agent's Signature of Application. — Where one
purporting to be an agent of the owner of lands signs the
application for establishing a road with the letters "agt."
after his name, this is an individual signature and will
not deprive the owner of his right to notice under this
section. Decatur County v. Curry, 154 Ga. 378, 114 S. E.
341.
§ 643, (§ 523.) Void roads. — All public roads
established without a substantial compliance with
the provisions of the three preceding sections are
void.
Editor's Note.— In Terrell County v. York, 127 Ga. 166,
169, 56 S. E- 309, it is said that there is no provision, cor-
responding to this section, in reference to alteration of pub-
lic roads. It does not seem that the court intends to say
that an alteration will be valid although there is no com-
pliance, but that the county may be liable in damages for
taking the property even though the alteration was irregu-
lar. This was not a case where the landowner is resisting
an irregular alteration, but where he waives irregularity and
seeks damages.
§ 644. (§ 524.) Discontinuance of roads. — Ap-
plications for the discontinuance of an old road,
in whole or in part, must likewise be made to
such ordinaries in writing, and likewise published,
before it shall take effect.
See 10 Cum. Dig. 670; 11 Enc. Dig. 963. See note to §
636.
Alteration Involves Discontinuance. — The alteration of an
old road involves the discontinuance of that part of it which
is altered, and it is lawful to provide for both the altera-
tion and the discontinuance in the same proceedings, and
under a citation which refers merely to an alteration. Pon-
der v. Shannon, 54 Ga. 188; Barnard v. Durrence, 22 Ga.
App. 8, 95 S. E- 372.
§ 645. (§ 525.) Public roads must be laid out
the nearest and best way. — All public roads shall
be laid out the nearest and best way to the place
to which they are intended, and as little as can be
to the prejudice of any private person's inclosed
grounds. Act 1818, Cobb, 951.
Editor's Note. — In Barnard v. Durrence, 22 Ga. App. 8,
95 S. E. 372, the third headnote reads: "Section 6457 of
the Civil Code (1910) has no application to such proceed-
ings [i. e., to alter a road]." The citation of § 6457, which
is wholly irrelevant, is a manifest typographical error. In
view of the preceding headnote it is probable that § 645
was intended. If this is the proper hypothesis, the hold-
ing seems to violate the spirit of the section. "All public
roads shall be laid out" would seem properly to include the
laying out of alterations.
§ 646. County surveyor or engineer may be
employed in locating roads. — The commissioners
of roads and revenues of the several counties cf
this State, or the ordinaries of those counties not
having such board of commissioners of roads and
revenues, shall have power at their discretion to
employ at the county's expense the county sur-
veyor, or some other competent civil engineer,
who shall assist the special road commissioners
appointed for the purpose of laying out and locat-
ing new, or making changes in .old roads; pro-
vided, that the per diem of such surveyor or civil
engineer so employed shall not exceed two dol-
lars. Acts 1901, p. 79.
§ 646(1). Public roads in counties of 125,000 or
more inhabitants, how opened and maintained. —
In counties of this State having one hundred and
twenty-five thousand inhabitants or more, County
Commissioners thereof, in opening and laying out
new public roads, may open and lay them out in
such width as their discretion may dictate, and
may thereafter maintain them in their full width
[146]
§ 646(2)
WORK ON PUBLIC ROADS
§ 656
as the present roads of said counties are main-
tained. Acts 1910, p. 79.
§ 646(2). Present roads may be widened. —
Said Commissioners in said counties may widen
the present roads of said counties to such width
as their discretion may dictate, and after being
widened said roads may be maintained to their
new width as the public roads of said counties are
now maintained. Acts 1910, p. 79.
§ 646(3). Condemnation of land. — For the pur-
pose of laying out, opening and widening roads,
said County Commissioners shall have the same
power to condemn land therefor as such Com-
missioners now have to condemn land for road
purposes. Acts 1910, p. 79.
SECTION 4.
Work on Public Roads.
§ 647. (§ 526.) Persons subject to road duty,
and who exempt. — All male inhabitants in this
State, between the ages of sixteen and fifty years,
shall be subject to work on the public roads, ex-
cept ordained ministers of the gospel, who are in
the regular discharge of ministerial duty, and in
charge of one or more churches, and all men who
have lost one arm or one leg. It shall be the duty
of the superintendent of the Georgia State Sani-
tarium, Asylum for the Deaf and Dumb, and the
Academy for the Blind, to furnish, under oath, to
the ordinary or the commissioners of roads and
revenues, where such officers exist, and where
these institutions are located, a list of guards,
watchmen, cooks, nurses, and attendants employed
on the first day of April of each year, and all such
employees shall be exempt from road duty. The
lessees of the penitentiary convicts are required
to furnish to the officers in charge of the roads in
each county of the State where they are employed,
a list, under oath, of all guards employed, and
said guards or convicts shall be exempt by pay-
ing one dollar per day for each day of road work-
ing for which they are summoned and said roads
are worked. Acts 1818, Cobb, 947; Acts 1865-6;
pp. 23, 78; 1870, p. 399; 1871-2. p. 19; 1876, p. 20.
See §§ 694 et seq., 705 et seq.
§ 648. (§ 527.) When hands are compelled to
work. — The same road hands shall not be com-
pelled to work on more than one public road,
which must come within three miles of their resi-
dence, or be the nearest public road to their resi-
dence, except in opening a new road, when all
the road hands of the road district are subject to
work upon it. Acts 1878-9, p. 48.
§ 649. (§ 528.) Length of time to work.— Road
"hands are not required to work exceeding five
days at one time consecutively, or more than fif-
teen days altogether, in twelve months, unless
sudden emergencies require the immediate re-
pairing of the roads, causeways, and bridges with-
in their respective districts. Acts 1818, Cobb, 947.
§ 650. (§ 529.) List of hands. — The several
managers and employers of male persons shall,
whenever required, furnish the overseers of the
road district with a list (in writing) of those who
are liable to work on the public roads, signed by
them, under a penalty of paying three dollars for
each male person of color so liable to road duty,
and whose names are not furnished, to be col-
lected as fines for not working the roads. Acts
1856-6, p. 23.
§ 651. (§ 530.) Road hands, how summoned. —
Overseers of roads in their respective districts
shall summon all persons liable to road duty,
within the district, at least one clay before the
time of working.
Time of Notice. — Where a person was notified to work
the roads on the clay before he was required to appear, and
did not appear thereunder, this was sufficient, although he
was not notified twenty -four hours before what would be
the usual hour for beginning labor on the next day. Sims
v. Hutcheson, 72 Ga. 437.
Need Not Be in Writing. -A notice to work on the road
need not be in writing; if the person notified received the
notice, and was told by the overseer when and where to
work and what tools to bring, and actually appeared, that
was sufficient. Sims v. Hutcheson, 72 Ga. 437.
§ 652. (§ 531.) What the notice must contain.
— Such summons must state the road to be
worked, the time and place for meeting, and the
implements required.
§ 653. (§ 532.) Overseer, his duty. — Such over-
seers shall superintend the working on the roads
assigned them by the commissioners, cause the
same to be worked and repaired in the best pos-
sible manner, and make a return thereof to the
commissioners, in writing, within five days after
each time of working, and report all hands who
may be in default, upon their several roads, with-
out receiving therefor any part of the fines which
may be collected from said defaulters; and, upon
failure to report any defaulter or defaulters (and
upon conviction thereof before the commis-
sioners), shall be fined five dollars for each de-
faulter he so fails to return. Acts 1876, p. 19.
§ 654. (§ 533.) Extraordinary work. — The
county authorities of the several counties, having
charge of the roads and revenues of each of said
counties, are authorized and required to provide
for the grading of the public roads of their re-
spective counties, where said roads are too steep,
too rough, or too boggy for practical use or the
hauling of ordinary loads; and said officials are
authorized and required to provide for any other
extraordinary work on the public roads of their
respective counties which can not be done by the
road hands subject to road duty under the laws
of this State. Acts 1880-1, p. 139.
See note to § 655. As to mandamus to compel compli-
ance, see § 5441.
§ 655. (§ 534.) By what means to be done. —
Said officials may have said work enumerated in
the preceding section done by use of the county
chain-gang, by contract let to the lowest and best
bidder, or otherwise as may be to the best interest
of their respective counties; and said officials shall
be authorized to pay for said work out of any
funds of their said counties not otherwise ap-
propriated. Acts 1880-1, p. 139.
The language of this section would seem rather to nega-
tive the right to tax specially for this purpose than to au-
thorize it. Central, etc., R. Co. v. Wright, 33 Ga. App. 96,
125 S. E. 520. See also Garrison v. Perkins, 137 Ga. 744,
74 S. E. 541.
§ 656. (§ 535.) Selection of roads by grand
jury. — The grand juries of the respective coun-
ties are authorized to select such roads or sec-
tions of roads, if in their judgment any such roads
exist in their respective counties, as can not be
made passable by the hands accessible thereto,
[147]
§ 657
PROCEEDINGS AGAINST DEFAULTERS
§ 668
and shall recommend to the ordinaries, or boards
of roads and revenues, or county judges (as the
case may be), existing in their respective coun-
ties, to have said road put in proper order as pro-
vided in the two preceding sections, and they shall
also recommend the manner in which said work
may be done or contract let out. Acts 1880-1,
p. 139.
§ 657.^ (§ 536.) Culverts, bridges, and new
roads. — The provisions of the three preceding
sections shall also apply to such culverts and short
bridges not less than ten feet in length, and all
new roads to be opened in said county, as the
grand juries may recommend, as provided in the
preceding section. Acts 1880-1, p. 139; 1890-1,
p. 63.
§ 658. (§ 537.) Roads, etc., suddenly becoming
impassable. — When any road, or bridge, or cause-
way may become suddenly impassable, it is the
duty of such overseer to call out as many hands
as necessary to repair the same, after giving one
day's notice.
§ 65&. (§ 538.) Special work deducted.— They
shall take notice of Ihe time such hands are em-
ployed on such special workings, and shall ex-
cuse them from road duty an equal number of
days out of the whole number all hands are re-
quired to work during the year.
§ 660. (§ 539.) Defaulters may be fined. —
Every individual liable to road duty, who, being
duly summoned to work, shall neglect to obey
such summons, and to carry the implements as
ordered, or, appearing with or without the im-
plements, neglects or refuses faithfully to work,
shall be fined not less than one> nor more than
three dollars for every day he or they fail to
work, or be imprisoned, at the discretion of the
commissioners. Acts 1865-6, p. 23.
Imprisonment Where Fine Unpaid. — Where one refusing
to work the public roads, was fined and in default of pay-
ment was imprisoned, there was no error in refusing to
discharge the prisoner, under a writ of habeas corpus. Sin-
gleton v. Holmes, 70 Ga. 407. See also Sims v. Hutcheson,
72 Ga. 437.
§ 661. (§ 540.) Extraordinary tools, how ob-
tained.— If any other instruments than ordinary
farming tools are necessary to keep the roads in
repair, the overseers may receive them in ex-
change for labor of hands, or may apply to the
road commissioners in the district in which said
instruments are needed, who shall apply to the
commissioners of roads and revenues where such
exist, otherwise to the ordinary, who may, in
their discretion, issue to said road commissioners
the needed instruments, taking their receipt for
the same, to be returned during the month of
January thereafter, or become responsible for the
value of the same. Acts 1890-1, p. 64.
SECTION 5.
Apportionment of Roads.
§ 662. (§ 541.) Roads may be apportioned. —
When a person liable to road duty makes an ap-
plication to the road commissioners for a pro-
portion of the road for himself and hands to
work and keep in repair, they may, in their dis-
cretion, parcel off to such applicant some equal
and just portion of said road, to be increased or
diminished according to the number of hands, to
be judged, of by the commissioners: Provided,
that said hands accepting such apportionment
shall be amenable and subject to the direction and
control of road commissioners, and subject to the
same fines or imprisonment, in common with the
other road hands, the same as though they had
not accepted such apportionment of road. Act
1826, Cobb, 954; Acts 1884-5, p. 55.
See note to § 665.
§ 663. (§ 542.) Duty of persons to whom ap-
portioned.— Persons to whom portions of roads are
thus apportioned must make annual returns to
their respective commissioners, whenever they re-
quire them, of the number and names of their
hands liable to road work, and after they have re-
ceived and put in good repair their respective por-
tions, such hands shall not be transferred to any
other part of the road, or compelled to do any
other road work, so long as they perform their
work satisfactorily to the commissioners.
§ 664. (§ 543.) Persons refusing to accept ap-
portionment.— If the applicants do not accept the
portion of road assigned to them by the commis-
sioners, they must still work in common with the
other hands of their road districts.
§ 665. (§ 544.) Penalty for failure to work. —
If, after having accepted such portions, they neg-
lect to keep them in good repair, they are liable
to all the penalties and forfeitures to which com-
missioners are liable for neglect of duty, besides
the usual road fines on the hands.
See §§ 731 et seq.
Where a portion of a public road is assigned under §§
662, 665, of the Code, the person receiving the assignment
becomes a quasi commissioner, is liable to the same pen-
alties, and must be punished for neglect of duty in the
same manner as a commissioner. Patillo v. Cutlif, 56 Ga.
690.
§ 666. (§ 545.) Complaint against commission-
ers.— If such commissioners assign any person a
portion of road thus to work, which, taking into
consideration his number of hands as compared
to the number liable to do road duty on such road,
is not an equal share of the labor, any male road-
worker of the same road and district may com-
plain to the ordinary at any time, and on giving
such persons three days' notice thereof, in writ-
ing, such ordinary may summarily hear all the
evidence, and if they believe the complaint is just,
they shall revoke such grant by the commission-
ers, and have them instantly informed.
SECTION 6.
Proceedings Against Defaulters.
§ 667. (§ 546.) Defaulters may file excuse.— All
defaulters must file their excuses, if any, on oath,
before the commissioners, who must meet at some
place within the district for finding defaulters, of
which place of meeting they shall give ten days*
notice in writing at one or more of the most pub-
lic places in the district, and no other notice shall
be necessary.
§ 668. (§ 547.) Executions against defaulters. —
Such commissioners must issue executions under
their hands and seals, or their warrants of arrest,
as the case may be, against each defaulter who
[148]
§ 669
DUTY OP RAILROADS AS TO ROADS
§ 677
fails to render a good excuse, directed to any law-
ful constable, who shall levy and collect the same
as executions issued from the justices' courts, or.
as the case may be, arrest the defaulter and bring
him before the commissioners to abide the judg-
ment of the same. Act 1839, Cobb, 957; Acts
1865-6, p. 23.
See note to § 660.
Effect of Adoption of Alternative Road Law. — The rec-
-immendation by the grand jury of a county, that the al-
ternative road law be adopted, makes such road law im-
mediately operative and divests the road commissioners of
all power to try or punish defaulters for failure to work
the public roads; and any process, judgment, or order there-
after issued by the road commissioners, in conformity with
§ 547 of the Political Code, is void. Varner v. Thompson,
3 Ga. App. 415, 60 S. E\ 216.
§ 669. (§ 548.) Fines, how disposed of— When
such fi. fas. or warrants are collected, within ten
days thereafter the amounts must be paid to any
one of the commissioners. Act 1839," Cobb, 957.
§ 670. (§ 549.) Constable may be ruled. — If
constables neglect their duty in collecting such fi.
fas. or fail to pay over the money, or fail to make
such arrests and bring the parties arrested before
the commissioners, they shall be subject to rule
and suit at the instance of such commissioners, as
though the fi. fas. or warrants had issued from a
justice's court. In all cases where executions may
be issued against road-hands in the employment
of others, notice to the employers of the existence
of such execution shall have the force and effect of
a garnishment, and shall operate as a lien on what
is due or to become due from such employer to
such employee, and may be collected as in cases of
garnishment. Act 1818. Cobb, 948: Acts 1865-6,
p. 23.
See § 4694.
§ 671. (§ 550.) Lien of commissioners' judg-
ment.— The lien of such judgments are the same as
my other judgment, and claim according to their
priority in the distribution of money, except that
10 property is exempt therefrom, and if illegalities
3r claims are interposed, they must be returned as
hough issued from a justice's court in which the
-oad district is situated in whole or in part.
SECTION 7.
Duty of Overseers; Mile-posts; Sign-boards, Etc.
§ 672, (§ 551.) Timbers may be used.— Over-
seers are authorized to make use of any timbers
icxr the use of the roads, and may make contracts
vith owners of land for such other timber, if in-
lispensable, and if they disagree as to the value,
he overseer shall appoint one arbitrator and the
nvner another, who. without further formality,
shall assess the value, and if they disagree, to call
rj an umpire, whose decision is final. The valua-
tion so awarded must then be reduced to writing
md signed by the arbitrators, and upon the pro-
luction of the same, with a certificate of the over-
eer that he used the timber assessed, must be al-
owed by the ordinary and paid out of the county
reasury. Act 1818, Cobb, 949.
§ 673. (§ 552.) Road to be measured.— They
:hall measure all that part of the road to which
hey may be appointed, beginning at the court-
louse, and at the end of each mile set up a post or
nark on some conspicuous place, which shall
designate the number of miles from thence to said
court-house; and the overseer in the next adjoin-
ing district shall likewise begin to measure and
mark at the last mile-post in the district thus
measured; but when such district shall end at
some county line, he shall, by some post or mark,
designate the distance from such county line to
their respective court-houses. Act 1818, Cobb, 951.
§ 674. (§ 553.) Sign-boards. — Repealed by Acts
1918, p. 269. Acts 1818, Cobb, 951.
§ 675. (§ 554.) Overseers failing to put up posts
and boards. — Repealed by Acts 1918, p. 269.
§ 675(1). Road sing-boards required. — Each of
the ordinaries of the counties in this State having
in charge of county matters, and the board of
county commissioners, be and they are hereby
required to place and keep at the fork or inter-
section of each public road in this State in some
substantial and conspicuous manner a sign post
designating thereon the most public place to
which each road directs and the distance thereto,
said sign posts shall be six inches by six inches in
size and six feet in length, with a cross arm placed
six inches from the top of said post, which cross
arm shall be two feet in length and six inches in
width; said post shall extend four feet above the
ground. Said posts and cross arms shall be
painted white, and all letters and figures thereon
shall be painted black and be not less than two
inches in size. Said sign posts shall be uniform
in size and designs throughout the State; pro
vided, however, that the provisions hereof shall
not apply as to uniformity, color or design in
those counties which now have stone or concrete
sign posts erected and maintained at the places
herein designated, provided that any county may
erect stone or cement posts in lieu of the ones
hereinbefore described. Acts 1918, "p. 269; 1919.
p. 275.
§ 675(2). Expense, how paid. — The expense of
constructing, placing and maintaining said sign
posts in accordance with the provisions of this
Act shall be paid by the several counties out of
their respective county treasuries upon warrants
drawn and duly approved by the proper county
authorities. Acts 1918, p. 269; 1919, p. 275.
§ 676. (§ 555.) Overseers in default. — If any
overseer omits to do his duty with respect to the
roads, bridges, and causeways under his charge,
for as much as thirty days from the time the
necessity for any immediate work occurs, unless
hindered by extremely bad weather or other* prov-
idential cause, he shall be indicted, and is also
liable for all damages at the suit of any person in-
jured by such omission.
SECTION 8.
Duty of Railroads as to Roads.
§ 677. (§ 556.) Railroad hands exempt, when.
— Hands liable to road work, employed as laborers
on the line of any railroad in this State belonging
to an incorporated company, or by any contractors
constructing railroads, are exempt from work on
the public roads: Provided, the public road over-
seer having charge of them, respectively, is paid
one dollar per day for each hand so liable, which
[149]
§ 678
DAMAGES, HOW ASSESSED
§ 689
money shall be expended in hiring hands to work
on the roads. Act 1845, Cobb, 958; Acts 1851-2,
p. 283; 1859, p. 65; 1860, p. 57; 1872, p. 10.
As to right of commissioner to sue railroads, see § 692.
SECTION 9.
Damages, How Assessed.
§ 678. (§ 557.) Landowners aggrieved, how re-
dressed.—When any person shall feel aggrieved
by any road proposed to be laid out through any
of his land, unless otherwise provided in the char-
ter thereof, or some special law, he may petition in
writing the ordinary, who shall issue a warrant
under his hand, directed to the sheriff of the
count}'-, to summon from the vicinage a jury of
freeholders to try such question of damage, who
shall be sworn by some justice of the peace tq
truly and impartially assess any damage the
owner will sustain by means of such new or
altered road, and said justice shall preside over
their deliberations. Act 1799, Cobb, 944; Acts
1851-2, p. 280.
See 10 Cum. Dig. 645, 649; 11 Enc. Dig". 956. See note to
§ 640.
Where proceedings to alter a public road are commenced
under §§ 640 et seq of the Civil Code of 1910, the remedy
of a person who will be damaged by the appropriation or
injury of his property in the alteration and construction
of the road is pointed out by this section. Barnard v.
Durrence, 22 Ga. App. 8, 95 S. E- 372.
The law does not provide for the assessment of dam-
ages to be paid by private persons as a condition prece-
dent to opening a public road. Summerville, etc., Road
Co. v. Deutscher Scheutzen Club, 57 Ga. 495.
§ 679. (§ 558.) Jurors incompetent, when. — No
person is competent as a juror who claims any
damage of the county or person for the same or
any similar road, or who would be disqualified if
the trial was before the superior court.
The petitioners to the ordinary for a new road over the
land of another are, when objected to, incompetent jurors
to pass upon the question of damages between the county
Rockdale, 78 Ga.
and the
the
landowner.
Almand
199.
§ 680. (§ 559.) Trial, how conducted. — The
jury shall inspect the road and land in person, un-
less already familiar with them, and swear any
witnesses that the owner or any person on the
part of the county may offer, as to their opinion
of the damages sustained.
§ 681. (§ 560.) Notice of trial. — The sheriff
shall notify the justice of the peace and the road
commissioners of the district where the road lies,
and the owner of the land, of the day and place
of trial, and shall notify to attend then and there,
as witnesses, any persons he may be requested to
b}r such commissioners, or the owner.
§ 682. (§ 561.) Time and place of trial.— He
shall fix the time and place, the time not less than
five nor more than twenty days, and the place as
near the land as the proper house-room can be ob-
tained.
§ 683. (§ 562.) Objections to jurors. — At the
trial any person in interest may object to the im-
paneling of any juror for cause, and if from this or
any other cause there are not twelve jurors im-
paneled and sworn, the sheriff must proceed to
procure tales jurors.
See note to § 679.
§ 684. (§ 563.) Trial may be postponed.— The
[150]
trial may be postponed or continued from day to
day until completed, and if the justice of the
peace summoned to attend should fail to preside,
the sheriff must suppty the vacancy, if necessary,
from some other district.
§ 685. (§ 564.) Mistrial.— If a mistrial occurs,
the sheriff shall proceed de novo to summon
other jurors, and all the proceedings shall be as at
first, and so on until there is a verdict.
Order to Summon Second Jury Unnecessary. — Where the
jury fail to agree and the sheriff without further order sum-
mon a second one, who, being impannelled assess the dam-
ages, the proceedings are legal. Hicks v. Foster, 32 Ga.
414.
§•686. (§ 565.) Certiorari. — The judgment m
such cases may be certioraried by the county or
the owner of the land, as in certiorari from forcible
entry and detainer trials, and if a new trial i>
ordered, they, shall proceed to procure a trial as
previously.
Who May Complain. — When the proceedings are had
which are provided for, only the county or the owner of
the land can complain of the verdict by writ of certiorari.
Summerville, etc., Road Co. v. Deutscher Scheutzen Club.
57 Ga. 495.
§ 687. (§ 566.) Order for damages. — When
such judgment becomes final, all the papers ap-
pertaining thereto must be filed in the office of
the ordinary, who must grant an order for the
damages assessed in favor of the landowner; but
if such ordinary is satisfied that such damages
transcend the utility of such road, or that part of
it, he may revoke the road altogether, or order the
same altered so as to avoid the land so damaged,
or make the owner an offer of such compensation
as the ordinary may think just.
See 10 Enc. Dig. 645; 11 Enc. Dig. 956.
An order establishing a road as marked out by commis-
sioners appointed for the purpose, subject to claims for dam-
ages filed by owners of land over which the road runs, is
in accordance with the law as contained in this section.
Brown v. Sams, 119 Ga. 22, 45 S. E. 719.
§ 688. (§ 567.) Value of land, how estimated.—
In estimating the value of land when taken for
public uses, it is not restricted to its agricultural
or productive qualities, but inquiry may be made
as to all other legitimate purposes to which the
property could be appropriated.
See note to following section.
§ 689. (§ 568.) Consequential damages. —
Prospective and consequential damages resulting
therefrom may be also taken into consideration, if
the same are plain and appreciable; and on the
other hand, the increase of the value of the land
from the proposed public improvement may be
considered, but in no case shall the owner be de-
prived of the actual damages by such estimated
increase.
It is proper, in order to arrive at just and adequate com-
pensation in determining the value of adjacent land taken
for the bridge and roads, that its prospective value as a
bridge site and its present value as a ferry site may be
taken into the calculation. Mitchell County v. Hudspethr
151 Ga. 767, 108 S. E. 305.
When a county, in the exercise of its corporate powers,,
appropriates land of an individual for the purpose of wid-
ening a public road, and as a result the premises of the
owner are rendered less valuable, he is entitled to just com-
pensation for the land so taken, and also for the injury thus
sustained; the measure of damages for the latter injury
being the diminution in the market value of his property.
Terrell County v. York, 127 Ga. 166, 56 S. E- 309.
As to effect of moving old road, and establishing new,
as increasing and decreasing value, see Mallory v. Mor-
gan County, 131 Ga. 271, 62 S. E. 179.
§ 690
ALTERNATIVE ROAD LAW
§ 695
SECTION 10.
Overseer's Neglect; Proceedings Against Rail-
roads and Others for Obstructions, Etc.
§ 690. (§ 569.) Overseer neglecting duty, etc.
— If any overseer within twelve months after his
appointment neglects faithfully to discharge the
duties required of him, he is subject to a fine not
exceeding fifty dollars by the commissioners un-
der whom he serves, who shall notify him of his
neglect, and unless a good excuse is rendered to
them within twenty days from the time of such
notice, they shall issue execution for the fine
assessed. Acts 1818, Cobb, 948.
§ 691. (§ 570.) Altering or obstructing public
road, penalty. — If any person shall alter any pub-
lic road or cut any ditch across, or alter the loca-
tion of any bridge, or make any new bridge neces-
sary by his act, without first obtaining an order
therefor, he is guilty of a misdemeanor, and shall
be liable besides, by suit, for all damages any per-
son may sustain thereby. Acts 1859, p. 65.
See P. C, § 543. <
§ 692. (§ 571.) Commissioners or ordinary
may sue railroads. — Commissioners of roads and
revenues, or ordinaries in counties where there are
no commissioners, are empowered to bring any
action against any railroad corporation that may
be necessary or proper to sustain the rights of the
public in and to any highway in any county, and
to enforce the performance of any duty enjoined
upon any railroad corporation in relation to any
highway in any county in this State, and to main-
tain action for damages or expenses which any
county may sustain or may be put to in con-
sequence of any act or omission of any such cor-
poration in relation to highways. Acts 1889, p. 102.
As to liability of railroads, see § 677.
§ 693. (§ 572.) Obstructions not removed, fine,
etc.- — When any person shall make any fence or
cut any tree, or make other like obstructions in
or across any public road, which is not removed in
two days and a safe and a convenient way, at the
time of the obstructions, made for travelers, he
shall pay a fine of twenty dollars for each obstruc-
tion, to be recovered bj^ execution issued by the
commissioners, as in case of road fines, and shall
be liable for any damages caused by the obstruc-
tion, from the first to the last, if the person injured
used ordinary caution. Act 1818, Cobb, 949; Act
1853-4, p. 98.
ARTICLE 2.
Alternative Road Law.
§ 694. (§ 573.) County authorities to lay out
roads. — The commissioners of roads and rev-
enues, ordinary, or such other officer as has
charge of county matters of each count);- in this
State, shall have the sole right to lay out, open,
change, or discontinue public roads therein, and
the sole management of the working of said roads;
and said authorities shall have authority to appoint
a superintendent of public roads when necessary,
and also to appoint all overseers, guards, and
officers that may be required to successfully carry
out the provisions of this Article, to prescribe the
duties of said superintendent, guards, and officers,
[15
fix the terms of office of the same and to pre
scribe and pay said appointees such salaries or
wages as may be deemed, proper. Acts 1890-1, p.
135.
See 10 Cum. Dig. 659; 11 Enc. Dig. 959.
In General. — In this State there are three general system-
of working public roads in the various counties. (See §5
647 et seq., 705 et seq.) No two of the systems can Ik
in effect in the same county at the same time. Wrighl
v. Sheppard, 5 Ga. App. 298, 63 S. E- 48.
Effect on §§ 640 et seq. — The alternative road law con-
tained in the Political Code, when duly adopted for a
county, only repeals therein so much of the old road law
as is inconsistent with it. Howel v. Commissioners, 118
Ga. 635, 45 S. E. 241; Barham v. Weems, 129 Ga. 704, 59
S. E. 803.
This section of the Political Code is not inconsistent
with the alternative road law, and must be complied with
before a new public road can be lawfully established in a
county wherein such alternative road law is operative.
Howell v. Commissioners, 118 Ga. 635, 45 S. E- 241; Bar-
ham v. Weems, 129 Ga. 704, 59 S. E- 803.
Road Registry Law. — As to relation between public road
register law (636-639) and alternative road law (694-704).
see note of Herndon v. Colquitt County, 132 Ga. 343, 64
S. E. 60, under § 636.
Not Repealed by §§ 705-719.-— The alternative road law
as contained in §§ 694-704 was not repealed by the Act
of 1896 (§§ 705-711), providing an additional scheme for
working the roads in the different counties, which might
be adopted by a popular vote, nor by the Act of 1898 (§§
712-719) which was amendatory of the act just referred to.
McGinnis v. Ragsdale, 116 Ga. 245, 42 S. E. 492. See
Maxwell v. Willis, 123 Ga. 319, 51 S. E. 416.
New Counties. — The alternative road law, having been
put in force in Liberty County in 1896 by recommendation
of the grand jury of that county, and having been in
continuous force from that date until 1920, when Long
County was created entirely from the territory of Liberty
County, became of force in the latter county when cre-
ated and organized; and the ordinary of Long County
could levy the road tax provided by that statute. Par-
ker v. Smiley, 153 Ga. 786, 113 S. E. 150.
Local Repealing Acts. — In Futrell v. George, 135 Ga. 265,
69 S. E. 182, it was held that an act which is in effect
a partial repeal (a repeal as to certain counties), of §§
694-704, is unconstitutional as being a special act.
§ 695. Who is Subject to Road Duty— Com-
mutation tax. — Each male citizen between the
ages of twenty-one and fifty years shall be subject
to road duty (except those who are now exempt
by law) and shall be required, when notified or
summoned to work the public roads of the county
of his residence for such length of time in each
year as may be fixed, or to pay such commutation
tax as may be fixed by said authorities; provided,
That no one shall be required to work for longer
than ten days in any one year, nor shall said com-
mutation tax be fixed at a sum that will amount to
more than fifty cents per diem for the number of
days work required. A commutation tax, fixed by
the count}' authorities, shall be collected by the
Ordinary or County Commissioners having
charge of county affiairs, as the case may be, of all
counties in this State with a population of not less
than 36,725, or greater than 50,000. No one in such
county [with population of between 36,725 and
50,000] shall be required to work for longer than
ten (10) days upon any public road in any one
year, nor said commutation tax be fixed at a sum
that will amount to more than one ($1.00) dollar
per diem for the number of days' work required.
Acts 1890-1, p. 135; 1910, p. 54; 1916, p. 32; 1919.
p. 77; 1920, pp. 242, 244; 1922, p. 36.
See 10 Cum. Dig. 665; 11 Enc. Dig. 961.
Editor's Note. — By the Acts of 1910, p. 54, the minimum
age was raised from 16 years to 21. By the Acts of 1920.
p. 242, and the Acts of 1916, p. 32, the clauses dealing with
counties of population between 36,725 and 50,000, were added.
The effect of two other acts, 1919, p. 77, and 1922. p. 37,
1]
§ 695(1)
ALTERNATIVE ROAD LAW
§ 699
does not appear on the face of the section. These acts
purport to amend this section, but each contained a pro-
viso limiting the effect of the amendment to certain coun-
ties. The}' are, in effect, local acts, and have not been
codified, following the example of the Code of 1910 with ref-
erence to a similar Act of 1906 (Acts 1906, p. 31).
The Act of 1919 (p. 77), applies only to counties with a
population between 30,100, and 30,250. In such counties the
maximum number of days required is to be five instead of
ten and the minimum tax is one dollar per diem.
The Act of 1922 (p. 37), applies only to counties with a
population between 34,700 and 34,800. In such counties the
maximum number of days is eight instead of ten, and the
minimum tax is one dollar per diem.
All Persons within Age Subject. — In those counties in
which the alternative road law is in force, all male in-
habitants between the ages of sixteen (now twenty-one)
and fifty, and not within one of the regular exemptions
recognized by law, are subject to road duty. Wright v.
Sheppard, 5 Ga. App. 298, 63 S. E- 48.
Opening New Road. — When a new public road has been
lawfully established in a county in which the alternative
road law has been adopted, only the road hands of the road'
district in which such road is located can be called out to
open it up. Howell v. Commissioners, 118 Ga. 635, 45 S.
E. 241.
Not Excused by Promise of Third Person. — One liable to
road duty under this section must either work the roads
as required or pay the commutation tax. He can not es-
cape liability as a defaulter in this public duty by proof
that he relied on some person's promise to pay the tax,
any more than he could depend on the undertaking of any
third person to work the road in his stead. Fanning v.
Board, 119 Ga. 315, 46 S. E- 410.
§ 695(1). Tax in certain counties. — In all coun-
ties of this State having a population of not more
than 23,400, nor less than 23,365, according to the
last available census, no one shall be required to
work for . longer than five days upon any public
road, in any one year, nor shall the said commuta-
tion tax be fixed at a sum that will amount to more
than two ($2.00) dollars per day for the number
of days work required of said person in said
county. Acts 1920, pp. 242, 245; 1922, pp. 147, 149.
§ 695(2). Tax in certain other counties. — In all
counties of this State having a population of not
less than 7,180, or more than 7,200 by the census
of 1910, the commutation tax shall be fixed at a
sum that will not be more than $2.00 per day, and
that no person shall be required to work more
than five days or less than three days in any one
year. Acts 1920, pp. 242, 244.
§ 696. County tax for roads.— The commis-
sioners of roads and revenue, or the ordinary, as
the case ma}^ be, shall levy a tax additional to any
now authorized by law, of no more than four-
tenths of one per centum on all of the taxable
property in the county, and the funds so raised by
said taxation, together with the commutation
heretofore provided for, shall be used and ex-
pended for the purpose of paying the salaries and
wages and for working, improving and repairing
the public roads, as herein set forth. Provided,
that in those counties having a population of hot
less than 23,370, nor more than 33,400 and in those
counties having a population of not less than 14,-
132, nor more than 14,500, the tax levied for the
aforesaid purpose may be fixed at any rate not
greater than six-tenths of one per centum. Acts
1890-1, p. 135; 1919, p. 79; 1920, p. 67; 1923, p. 53.
See 10 Am. Dig. 753; 12 Enc. Dig. 86.
Editor's Note. — This section has been amended four times
since the adoption of the Code of 1910. By the Acts of
1911, p. 56, the maximum was raised from 2/10 to 4/10 of
one per cent. By the Acts of 1919, p. 79, a maximum of 1/10
of one per cent, was adopted for counties with population
between 18,690 and 18,750. By the Acts of 1920, p. 67, the
maximum of 6/10 was made applicable to counties with
population between 14,132 and 14,500. Finally, by the Act
of 1923, p. 53, the figures 18,690 and 18,750 were changed
to 23,370 and 23,400, respectively.
Disbursement of Fund. — The public -road fund provided for
in this section is a county fund within the meaning of §
574; and there being nothing in the general road law, which
requires the county commissioners of that county to dis-
burse this fund, it is the duty of the commissioners, when
the fund comes into their possession, to pay the same over
to the county treasurer; and a performance of this duty
may be compelled by mandamus at the instance of the
countv treasurer. Board v. Clark, 117 Ga. 288, 43 S. E-
722.
Additional Tax for Chain Gang. — A county, after having
adopted the alternative road law, and after having levied
the maximum rate for the maintenance of such system, can
not levy an additional tax, for the support of a chain gang
to be used upon the public roads, bridges, or other public
works of the county. Central Ry. Co. v. Meriwether
County, 148 Ga. 423, 96 S. E- 884; Wright v. Alabama Great
So. R. Co., 150 Ga. 140, 102 S. E. 821; S. C, 25 Ga. App.
256, 103 S. E. 95; Carter v. Shingler Realty Co., 157 Ga.
118, 120 S. E. 784.
Construed with § 508. — There is nothing in this section
making the levy dependent upon the action of the grand
jury, and therefore the amount levied for this purpose is
not to be considered in determining whether the tax levied
for ordinary county purposes has exceeded fifty per cent,
of the State tax. Sullivan v. Yow, 125 Ga. 326, 328, 54 S.
E- 173.
Warrant out of Road Fund for Other Purposes. — A war-
rant issued by the commissioner of roads and revenues in
part payment of the purchase-price of a lot upon which to
erect a courthouse could not lawfully be paid out of the
public-road fund. Sammons v. Sturgis, 145 Ga. 663, 89
S. E. 774.
§ 697. (§ 576.) Provisions for working. — Said
authorities are authorized to work, improve, and
repair the public roads, as follows:
1. They may work a chain-gang (which said
authorities are hereby empowered to organize;
said gang to consist of the misdemeanor convicts
of the county, or of any other county in this State
that may be obtained without cost or for hire) and
those who do not pay the commutation tax: Pro-
vided, that the convicts and those who do not pay
the said tax shall not be worked together.
2. They may work free hired labor and those
who do not pay the commutation tax.
3. They may have said roads worked, improved,
or repaired, by contracting for the same, in such
manner as they may deem fit, with private parties,
or corporations: Provided, that if the work is done
by contract, the contractors shall be required to
employ the chain-gang, if established, and the
labor of those who do not pay the commutation
tax, and to pay for the same.
4. They may employ or combine any or all of
said three above mentioned methods, or may use
any other method or system that may be desired
for accomplishing the work necessary to put and
keep the public roads in good condition. Acts
1890-1, p. 135.
§ 698. (§ 577.) Machinery, tools, etc. — Said
authorities may purchase any and all machinery,
implements, tools, wagons, and stock necessary
and required for working said roads, and may
build such house or stockades, and purchase any
thing or article necessary and useful in handling
and working the chain-gang. Acts 1890-1, p. 135.
§ 699. (§ 578.) Fund, how spent. — Said au-
thorities shall expend said public-road fund in any
manner they may deem best for putting and keep-
ing the roads in thorough condition and repair.
Acts 1890-1, p. 135.
See note to § 696.
[ 152
§ 700
ROAD DUTY AND COMMUTATION TAX
§ 720
§ 700. (§ 579.) Residents of cities not affected.
— The citizens of cities and towns shall not be re-
quired to work the public roads outside of the
corporate limits, nor to pay the commutation tax.
Acts 1890-1, p. 135.
§ 701. (■§ 580.) Defaulters. — Any person who
has failed or refused to pay the commutation tax
when demanded by the officer appointed by the
authorities to make such demand, and who shall,
without a good excuse, fail or refuse to appear at
the time and place appointed to work, when sum-
moned or notified by the officer whose duty it is
to give said summons or notice by the rules of the
authorities having charge of the public roads, or
who shall fail or refuse to do faithful work as
ordered by the officers in charge of the work when
he has appeared, shall be fined not less than one
dollar nor more than five dollars for each da}r lie
fails to work, or be imprisoned in the common jail
at the discretion of the authorities trying the case,
or be sentenced to wrork in the chain-gang for not
longer than ninety da}^s. If the authorities trying
the case impose a fine upon the person convicted,
it may be with the alternative of other punishment
allowed by this section, in case said fine is not
paid. Acts 1897, p. 19; 1890-1, p. 135.
See 10 Cum. Dig. 665.
§ 702. (§ 581.) Defaulters, by whom tried.—
One or more of the commissioners of roads and
revenues in counties having commissioners, and
the ordinaries in counties where the ordinary has
charge of county matters and public roads under
this Article, and the county judge in counties where
said judge has charge of county matters and pub-
lic roads, are empowered to try all defaulters, and
said authority shall hold court or courts for the
trial of said defaulters, at any time or times, and at
any place or places in the county that may be fixed
by said authority: Provided, that ten days notice
be given of the time and place, or times and places,
to defaulters. Acts 1890-1, p. 135.
See 10 Enc. Dig. 666.
§ 703. (§ 582.) Summoned by whom. — De-
faulters shall be summond for trial by, or arrested
by, such officer or officers as the commissioners
or ordinary or county judge may appoint, by any
lawful constable of the county. Acts 1890-1, p.
135; 1893, p. 125.
§ 704. (§ 583.) Provision, when of force. — This
Article shall not go into effect in any county in
this State until it is recommended by the grand
jury of said county, said recommendation to be
made at any term of court, and the operation of
this article shall be - suspended in any county of
this State upon a like recommendation of the
grand jury, made at any term of court, after the
lapse of three years from the time this article goes
into effect. Acts 1890-1. p. 135; 1893, p. 125; 1897,
p. 20.
See 10 Cum. Dig. 664; 11 Enc. Dig. 960. As to named
sections being in force in certain counties, see § 704 (1).
In General. — This section delegates quasi-legislative func-
tions, with reference to roads, to the grand jury. Varner
v. Thompson, 3 Ga. App. 415, 60 S. E. 216.
Recommendation at Special Term. — -When a special term
of a superior court is convened for the purpose of dispos-
ing of any and all business before the court, and the grand
jury which served at the preceding regular term is re-
quired to be in attendance at such special term, such grand
[153]
jury has authority to make a recommendation, under the
provisions of this section, that the alternative road law-
be adopted in the county. McGinnis v. Ragsdale, 116 (in.
245, 42 S. E- 492.
Sufficiency of Recommendation. — Where the recoiunicmla -
tion of a grand jury is attacked for informality, indefinite-
ness, or ambiguity of expression, effect will be given t"
the apparent intention and the object sought to be at-
tained by the grand jury. Varner v. Thompson, 3 Ga. App.
415, 60 S. E- 216.
Where the grand jury of a county, as a part of their gen-
eral presentments, recommend "that the alternative road
system be adopted in this county," such a recommendation
has the force and effect of adopting the provisions of the
alternative road law contained in §§ 694 to 704. Pirkle v.
Bearden, 141 Ga. 481, 81 S. E. 207.
A loose and general recommendation by the grand jury
of a particular county, that the roads thereof "be worke!
by taxation," and that the fund raised by the taxation of
property in each militia district "be applied to that dis-
trict," did not have the effect of putting into operation in
that county any of the "alternative road laws of this State,"
nor did such a result arise from an endorsement of this
action by the next succeeding grand jury. Haisten v.
Glower, 114 Ga. 992, 41 S. E. 48.
Disqualification of Juror. — Where one member of a grand
jury recommending that the provisions of such law should
go into effect in a given county was not then a resident
thereof, the recommendation is not vitiated by reason of the
disqualification of such juror, when it affirmatively appears
that, irrespectively of his vote, there was a majority in
favor of the recommendation. Crawford v. Crow, 114 Ga.
282, 40 S. E. 286.
Effect on Power of Road Commissioners. — When the road
law is adopted by the recommendation of the grand jury,
road commissioners cease to exist in that county, and an
exercise of any judicial function whatever by those persons
who may previously have been road commissioners becomes
legally impossible. Varner v. Thompson, 3 Ga. App. 415,
60 S. E. 216.
§ 704(1). Counties having population of be-
tween 9750 and 9950. — In all counties in this State
having a population of between 9750 and 9950, the
provisions of Sections 694 to 703 of Volume 1 of
the Code of Georgia of 1910, relating to public
roads, time and manner of working same, tax for
same, method of punishing defaulters, and other
matters relating to the public roads, known as the
"Alternative Road Law," shall become operative and
shall supersede all road laws now operative in such
counties; except that in such counties no one shall
be required to work more than five days in any one
3rear nor pay more than the equivalent of such
work as a commutation tax, but may be required
to pay the equivalent of a day's work as a com-
mutation tax for each and every day required.
Section 695 in so far as it applies to such counties
is thereby repealed to that extent. Acts 1912. p.
103.
ARTICLE 3.
Alternative Four-Days Road Law.
§§ 705 to 711, inclusive, were repealed by Acts
1918, p. 215 which provided that § 694 to § 704 be
substituted in lieu thereof.
ARTICLE 4.
Alternative Road Law in Certain Counties.
§§ 712 to 719 (Acts 189S, p. 110) inclusive, being
amendatory of sections 705 to 711. are expressly
repealed by the Acts of 1918, p. 215. Acts 1898, p.
110.
ARTICLE 5.
Road Duty and Commutation Tax in Certain
Counties.
§ 720. Road duty and commutation tax in cer-
§ 721
COMMISSIONERS OF PUBLIC ROADS
§ 729
tain counties. — In all counties in this State having
an organized chain-gang and having a city of not
less than seventeen thousand inhabitants nor more
than twenty-three thousand inhabitants according
to the census of the United States, the time of
work required of each person subject to road duty
shall not exceed four daj^s in each year; and each
person so subject to road duty shall have the
privilege of paying to the proper county authority
having in charge the working of the public roads
in such counties the sum of two dollars at such
time as may be fixed by such authority, and be
fully discharged of such road duty for the year of
such payment. Acts 1903, p. 106; 1908, p. 99.
§ 721. Where required to work. — No person
subject to road duty in such counties shall be re-
quired to work the public roads without the limits
of the militia district in which he resides.
§ 722. Age limits. — No person under eighteen
3'ears of age nor over fifty years of age shall be
subject to road duty in such counties.
§ 723. Tax, how expended. — The fund so raised
from the commutation tax shall be expended as
provided by existing laws.
ARTICLE 6.
Commissioners of Public Roads.
SECTION l.
Appointment and Obligation to Serve.
§ 724. (§ 584.) Three commissioners for each
district, two may act. — There shall be three com-
missioners for each road district, any two of
whom may act, and in case there is only one in
a district, that one is invested with all the powers
of the three until the vacancies are filled. Act
1818, Cobb, 947.
As to new counties, see § 843.
The commissioners provided for in this section need not
be appointed as commissioners under § 640. Brown v. Sams,
119 Ga. 22, 45 S. E. 719.
§ 725. (§ 585.) How appointed. — Such com-
missioners are appointed or reappointed, by the
ordinary biennially, and, whenever necessary, to fill
vacancies at any time.
§ 726. (§ 586.) Compelled to serve. — Those
thus appointed are compelled to serve, unless ex-
cused by such ordinary, who shall receive for
such excuse providential cause only: Provided,
that those who have served two years consecu-
tively shall have the right to resign a third ap-
pointment, if made immediately after two years
consecutive service. Acts 1818, Cobb, 9+7. Acts
1878, p. 67.
§ 727. (§ 587.) Notified in writing. — As soon
as appointed, they shall be notified thereof in
writing within ten days thereafter by the ordi-
nary, and if such appointees do rot, within ten
days after receiving such notice, file their excuse
in writing, under oath, in such ordinary's office,
they shall be considered as having accepted.
§ 728. (§ 588.) Exemptions of commissioners.
— Such commissioners, while in office, are ex-
empt from all jury, patrol, militia, and other road
duty.
SECTION 2.
Duty of Road Commissioners.
§ 729. (§ 589.) Duties. — It is their duty—
1. To appoint, within fifteen days, one or more
persons in their respective districts as overseers
of the road.
2. To apportion the roads and hands under their
charge at the same time as equally and fairly as
possible, and to furnish the several overseers
with a list of the roads and hands under their re-
spective charge.
3. To hear and determine upon all cases of de-
fault or other violation of the road laws within
their jurisdiction (if not indictable only) at a
court to be held toy them within twenty days af-
ter every road-working, or as often as emergen-
cies ma)r require, and to issue executions or other
processes against the convicted.
4. To expend as in their judgment will best
serve the public good, all moneys coming into
their hands from defaulting road hands, and
from fines imposed upon and collected from over-
seers: Provided, that such moneys are to be ap-
plied to improvements respectively of the roads
whereon such defaulters may have been required
to serve.
5. To cause to be served upon road defaulters
three days notice in writing, of the time and place
of the meeting of such commissioners for the
trial of defaulters. Such notice to be seryed by
the overseer of roads or the constables of their
respective militia districts upon such defaulters
personally or by leaving the same at their most
notorious place of abode.
6. To keep a book in which to enter —
(1) The several hand,s in their respective dis-
tricts subject to road duty; to what roads and
what parts thereof assigned, and under what
overseer; changing and correcting it from time to
time, as may be necessary.
(2) A list of all defaulters and persons fined,
the amounts fined, amounts paid, what disposition
made of the money, what executions issued and
unpaid.
7. To pay to the county treasurer, as soon as
collected, that portion of the fine-money belong-
ing to the county, to be used, in the repairing or
Ibuilding of public bridges and causeways; and
annually, on the first of December, to report to
the ordinary the condition of the public roads and
bridges in their respective districts, the state of
the finances, what executions are outstanding and
unpaid, and their condition.
8. To inspect from time to time the public
roads, bridges, and ferries within their districts,
notice the character of the repairs, and observe if
such road is regularly posted and direction boards
put up as required, by law, and if said bridges and
ferries are in proper repair.
9. To exercise a general supervision over
their respective overseers, and to fine them for
neglect of duty, and to see that persons are in-
dicted for the offenses set forth in the road laws.
10. To administer all oaths relative to the road
laws, connected with their duties. Acts 1818,
Cobb, 947, 948; Acts 1876, p. 19; Acts 1880, p.
146.
[154]
730
INSPECTORS OF ROADS AND BRIDGES
§ 739
§ 730. (§ 590.) May punish for contempt. — All
road commissioners' courts in this State, when
convened as such, may fine for contempt in any
amount not to exceed five dollars or imprison-
ment not to exceed five hours, and any constable
of the county in which the road commissioners'
court is held is empowered, to execute sentence of
said courts. Acts 1882-3, p. 79.
SECTION 3.
Proceedings against Road Commissioners.
§ 731. (§ 591.) Proceedings against commis-
sioners for neglect of duty. — Whenever the grand
jury in any county in this State shall present any
road commissioners for neglect of duty generally,
or in any particular, it shall thereupon be the duty
of the clerk of the court to issue a summons in
writing, directed to such commissioners, com-
manding them to be and appear at the next term
of the superior court in which the presentment is
made to answer the accusation of the grand jury,
which said summons shall be served by the sheriff
upon the commissioners at least twenty days be-
fore the court to which the same is returnable;
and if, upon the investigation of the case, it shall
appear that the accusation is made out by the
proof, the judge shall thereupon impose upon
such commissioners a 'fine not less than ten dol-
lars nor more than two hundred dollars. Acts
1866, p. 18; 1884-5, p. 41.
Proceeding Not Criminal. — A proceeding against a road
commissioner under this section is not technically a crim-
inal proceeding but a proceeding against a public agent
for neglect of duty. Blankenship v. State, 40 Ga. 681.
Form of Presentment. — The presentment of the grand
jury, mentioned in this section, need not be in the form
required in a presentment of a person for a violation of
the criminal law of the State. Blankenship v. State, 40
Ga. 681.
Jury Trial. — -The road commissioner is not entitled to
demand a trial by jury. Blankenship v. State, 40 Ga. 681.
Persons to whom portions of a public road are assigned,
become quasi-commissioners, liable to the same penalties
under this section. Patillo v. Cutliff, 56 Ga. 690.
§ 732. (§ 592.) Complainant against road com-
sioners. — Any citizen, by petition in writing to
the ordinary, judge of the county court, or board
of commissioners of roads and revenues, as the}''
may respectively have jurisdiction over the ap-
pointment of road, commissioners may make
complaint against any road commissioners ap-
pointed for any road district of the petitioner's
county, for neglect of duty generally or in any
particular, which petition shall be sworn to; and
it shall thereupon be the duty of the officer to
whom such petition is addressed to issue a sum-
mons in writing, directed to such defaulting com-
missioners, commanding them to be and appear
before such county authorities, at the usual place
of sitting, on a day certain, to answer the accusa-
tion in the petition contained, which summons
shall be served by the sheriff or his deputy upon
the commissioners complained against, at least
twenty days before the day of hearing; and if, up-
on investigation of the case it shall appear that
the accusation is made out by the proof, the
county authorities shall impose a fine upon such
commissioners of not less than ten dollars nor
more than two hundred dollars. If such com-
missioners have been duhr cited and served and
fail to appear, the tribunal to which such sum-
mons is made returnable may proceed ex parte,
and execution shall issue against such commis-
sioners for any fine imposed, which shall be exe-
cuted iby the sheriff or his deputy, and the lien of
such execution and the property subject thereto
shall be the same as against defaulting road-
workers. Acts 1884-5, p. 136.
§ 733. (§ 593.) Penalty.— Upon the hearing of
the case against such defaulting commissioners,
it shall be lawful for the tribunal trying the case
to impose an alternative punishment or imprison-
ment in the county jail for a term not exceeding-
ten days, and if the tribunal hearing the case shall
fine such commissioners, they shall thereupon be
removed from office, and other commissioners
shall be forthwith appointed in their place.
See § 731.
§ 734. (§ 594.) Failure to appear. — If they
have been duly cited and served and fail to ap-
pear, the court may proceed ex parte.
§ 735. (§ 595.) Clerk shall issue execution. —
The clerk of the court is directed to issue execu-
tions against them for the fine and costs, which
shall be executed by the sheriff. The lien of such
executions, and the property subject thereto, are
the same as those against defaulting road-work-
ers.
See § 671.
SECTION 4.
Roads, How Assigned; Discharge of Commis-
sioner.
§ 736. (§ 596.) A public road being a district
line. — When any public road may be on a road-
district line, and the ordinary has not specially
assigned it to any particular district or set of
commissioners, the commissioners of each dis-
trict shall co-operate in arranging the hands and
appointing the overseers for such road. Acts
1818, Coblb, 949.
§ 737. (■§ 597.) Books, who furnishes. — The
book such commissioners are required to keep
must be furnished by the ordinary, at the ex-
pense of the county, and out of the road money, if
any, and when full must be deposited in his of-
fice.
§ 738. (§ 598.) Commissioners, by whom dis-
charged.— After the commissioner has faithfully
served through the term of his appointment, he
ma)r obtain from the ordinary a certificate of such
fact.
ARTICLE 7.
Inspectors of Roads and Bridges.
§ 739. Inspectors, duties, and control of. — The
commissioners of roads and revenues for all coun-
ties in this State having a population of more
than fifteen thousand people, according to the
census of the United States, shall have the power,
upon recommendation of the grand jur}', to em-
ploy one or more persons to be known as "In-
spector of Roads and Bridges;" provided, that
nothing in this article shall affect counties hav-
ing over eighty-five thousand population already
[155]
§ 740
JURISDICTION OF ORDINARY
§ 747
having such system as herein provided. Acts
1899, p. 89; 1902, p. 104.
§ 740. Duties of inspectors. — It shall be the
duty of such inspectors to examine routes for
new road.s thereon, to make constant and careful
examination of the existing roads and bridges of
the county for which they may be appointed, and
report the condition of the same to the commis-
sioners as often as may be necessary and as often
as directed by the commissioners; to guard and
look after the county chain-gang and capture es-
capes therefrom, and do all such other things in
reference thereto when and as directed by the
commissioners.
As to performance of duties by county police, see §
852.
§ 741. May be deputy sheriffs. — The sheriff of
any county which employs such inspectors shall,
on the request of the commissioners, appoint
them deputy sheriffs, and as such they shall have
power to make arrests for any violations of the
criminal laws of this State, as other deputy sher-
iffs, but as to all arrests such inspectors shall re-
port to the sheriff of their county as other deputy
sheriffs report.
Proof of Appointment.— Appointment and qualification of
an inspector as a deputy sheriff may be shown by proof
that he acts as such, without production of the written
appointment. Earl v. State, 124 Ga. 28, 52 S. E. 78.
§ 742. Chief inspector. — Where more than one
inspector shall Ibe appointed in any county, the
commissioners shall have power to designate one
of them as "chief inspector."
§ 743. Control of inspectors, their salaries and
tenure of office. — Said inspectors shall be under
the control of the county commissioners and such
rules as the commissioners may make in pursu-
ance of law; they shall be employed subject to be
discharged at any time by the commissioners of
any cause satisfactory to them, and shall have
such salaries out of the county treasury as the
commissioners may think right and proper.
such rights, who accommodate the public or any
portion of them for compensation.
ARTICLE 8.
Bodges, Ferries, Turnpikes, and Causeways.
SECTION 1.
Classification.
§ 744. (§ 599.) Public bridges, ferries, cause-
ways, etc. — All bridges or ferries, turnpikes, or
causeways erected or permitted by any act of the
General Assembly, if not otherwise provided, or
by order of the ordinaries, for public purposes, are
declared to be public. Act 1799, Cobb, 943.
§ 745. (§ 600.) Bridges, ferries, etc. — They
are divided —
1. Those established, by the county which are
free to everjr one.
2. Those established by the county where toll
is charged generally or specially.
3. Those established by individuals under the
authority of law or by virtue of a prescriptive
right.
4. Those established by individuals without
SECTION 2.
Jurisdiction of Ordinary.
§ 746. (§ 601.) Ordinary may establish for
benefit of county. — The ordinary may put a ferry
or causeway, or both, or may establish a toll-
bridge for the benefit of the county; but when on
any such county bridge, ferry, or causeway toll
is charged, the county is liable as individuals
owning them, and the owners of lands must be
compensated as in other cases.
"The implication from the liability imposed on coun-
ties where toll is charged makes it clear that it does not
exist where the bridge or ferry is free." Arline v. Lau-
rens County, 77 Ga. 249, 252, 2 S. E. 833. See note to §
748, which in its present form renders this holding nug-
atory.
§ 747. (§ 602.) Power of ordinaries over public
bridges, ferries, causeways, etc. — The ordinaries of
the several counties have authority —
1. To appoint the places for the erection of
public bridges, county ferries, turnpikes, and
causeways, and to make suitable provision for
their erection and repairs by letting them out to
the lowest bidder, hiring hands, or in any other
way that may be for the public good and agree-
able to law.
2. To require sufficient bond and good 'security
for the faithful performance of all such work and
contracts, and to indemnify for all damages -oc-
casioned by a failure so to do.
3. To license any person to establish such
bridge, ferry, turnpike, or causeway, not exceed-
ing ten years, which may be renewed at the ex-
piration thereof.
4. To fix the rates of toll for crossing any such
where the toll can lawfully be charged, and regu-
late those previous^ established, or that may af-
terwards be established, so as to conform to
what is both reasonable and usual on such water-
courses: Provided, such charges are not speci-
ally regulated by the General Assembly in some
act of incorporation to the exclusion of such or-
dinaries.
5. To exercise a general supervision over
such, and see that they are kept in proper order
and properly attended to, and to require from
time to time, as the occasion may demand, suffi-
cient bond and good security from the proprie-
tors thereof, conditioned for their keeping in re-
pair a sufficient and safe bridge, flat, roper
turnpike, or causeway, and all other ap-
pointments necessary for a good ferry and com-
petent and faithful attendance by day and night,
and to indemnify the public against all damages
by reason of a failure so to do. Act 1805, Colbb.
945; Act 1818, Cobb, 952.
See § 6521. See notes to §§ 648, 668. See 2 Cum. Dig.
1021; 2 Enc. Dig. 547. •
The construction of a bridge by private citizens, part
of the material being furnished by them, in accordance
with agreement with county officials, is one of the "other
ways" mentioned in paragraph 1 of this section, and the
bridge is a county bridge. Tattnall v. Newton, 112 Ga.
779, 38 S. E. 47.
It seems clear that the "authority" vested in ordina-
ries by this section carries with it the correlative duty of
[156]
§ 748
CONTRACTOR'S LIABILITY AND BOND
§ 754
seeing to it that all county bridges are properly built and
kept in safe condition, and it was plainly the legislative
purpose to make counties liable for injuries resulting from
a failure on the part of the proper authorities to observe
either branch of the duty above indicated. Tattnall v.
Newton, 112 Ga. 779, 781, 38 S. E- 47.
SECTION 3.
Contractor's Liability and Bond.
§ 748. (§ 603.) Condition of contractor's bond.
— When a public bridge, ferry, turnpike, or cause-
way is let out, the contractor must in his bond
make a condition also to keep it in good repair for
at least seven years, and as many more years as
the contract may be for: Provided, that such
contract may be let out under existing laws with-
out requiring the aforesaid condition in the con-
tractors' bonds, if, in the opinion of the commis-
sioners of roads and revenues, or of the ordinary
in counties where there are no such commission-
ers, it would, be to the public interest to dispense
with said condition in said bond: Provided, how-
ever, that in every case the county shall be pri-
marily liable for all 'injuries caused by reason of
any defective bridges, whether erected by contrac-
tors or county authorities. Acts 1888, p. 39.
See 2 Cum. Dig. 1028; 2 Enc. Dig. 553. As to liability
of contractor, see §§ 767, 768.
Editor's Note. — Prior to the amendment of this section
by the Acts of 1888, p. 39, a county was liable for dam-
ages caused by defects of construction or failure to re-
pair, only under § 746, where the bridge was a toll -bridge,
and § 768, where the bridge was built by a contractor,
and there was a failure to take the required bond. The
second proviso added by the Act of 1888, makes the county
primarily liable in all cases, thus making that portion of
5 648 dealing with the liability of the county of little im-
portance. Some of the more important of these cases will
be found under § 768.
Constitutionality of Amendment. — The Act of 1888, "to
amend § 671 of the Code of 1882," etc., is not violative
of § 6445 of the constitution. Ryle v. Wilkinson County,
104 Ga. 473, 30 S. E. 934.
Amendment Not Retroactive. — The Act of December 29,
1888 (this section), does not apply to bridges built be-
fore its passage, unless they have since that time been
practically rebuilt. Whether the work done on them was
merely a repairing, or amounted to a rebuilding, is a ques-
tion of fact for the jury. Warren County v. Evans, 118
Ga. 200, 44 S. E. 986. For other cases, see 2 Enc. Dig.
554.
It must be alleged in the petition of the plaintiff that
the bridge was built after 1888. Butts County v. John-
son, 136 Ga. 354, 71 S. E. 428; Seymore v. Elbert County,
116 Ga. 371, 42 S. E. 727. See also, 2 Cum. Dig. 1030.
Liability Not Limited to Seven Years. — A county is lia-
ble for injuries caused by a defect in a county bridge con-
structed, either by contractors or by the county author-
ities, since the passage of the Act of 1888, although the
injuries occurred more than seven years after the bridge
was constructed. Hackney v. Coweta County, 117 Ga.
327, 43 S. E. 725.
To What Structures Applicable — In General. — It mat-
ters not by what authority such bridge is constructed,
whether by act of the General Assembly or an order of
the county officers, by the road hands or by an individual,
if it is a part of the public county road and the public
authorities use it, it becomes a public utility, and the
duty of keeping it in repair is imposed upon the county
authorities, and the county is liable for an injury result-
ing from a negligent performance of such duty. Earle
County v. Fain, 2 Ga. App. 288, 58 S. E. 528.
"A bridge which constitutes a portion of the public road
is necessarily a public bridge." Early County v. Fain,
2 Ga. App. 288. 58 S. E. 528.
Same — What Included in Term "Bridge." — The word
"bridge," in the statute of this State giving a right of
action against a county for defective construction, means
a bridge used as an instrumentality for travel along a
highway and for crossing streams or ravines. In this
sense a bridge does not include a drain or opening under
the bridge, although a part of the structure. Ellis v.
[15
Floyd County. 24 Ga. App. 717, 102 S. E- 181. See also
Hubbard v. County of Fulton, 144 Ga. 363, 87 S. E- 281.
The term "bridge" includes all the appurtenances nec-
essary to its proper use. and embraces its abutments and
approaches. That which is necessary as an approach, to
connect the bridge with the highway, is an essential part
of the bridge itself. Howington v. Madison County, 126
Ga. 699, 55 S. !v 941. For other cases, see 2 Cum. Dig.
1031, 1032.
Same — County Line Bridges. "There is a marked dif-
ference between the requirements of the law relating to
the construction of "county -line" bridges, and the provi-
sions of law under which bridges wholly within the lim-
its of a county may he built." Forsyth County v. Gwin-
nett County. 108 Ga. 510, 512, 33 S. E. 892.
The proviso contained in this section, making coun-
ties "primarily liable for all injuries caused by reason of
any defective bridge," does not apply to bridges built
across streams between counties. Paxton v. Berrein
County. 117 Ga. 891, 892, 45 S. E. 266. See also Laurens
County v. McLendon. 19 Ga. App. 246, 91 S. E- 283; Brooks
County v. Carrington. 7 Ga. App. 225, 66 S. E. 625; Wil-
lingham v. Elbert County. 113 Ga. 15, 38 S. E. 348. But
§ 768 is applicable, see Laurens County v. McLendon. 19
Ga. App. 246, 91 S. E. 283; Wells v. Jefferson County.
19 Ga. App. 455, 91 S. E. 943. As to county line fines,
see amendment to § 755.
County authorities are not insurers of the safety of
county bridges, but are only hound to exercise ordinary
care in maintaining and repairing them. Warren County
v. Evans, 118 Ga. 200. 44 S. E. 986. See also. 2 Cum. Dig.
1031; 2 Enc. Dig. 556.
No Duty to Erect Warnings. — A county is liable to a
person injured by reason of a defective bridge only when
the county has failed to exercise ordinary care in per-
forming this statutory duty to keep the bridge in repair,
and not by reason of any negligent failure to post signs
or other warnings informing travelers of the defective con-
dition of the bridge. Wilkes Countv v. Tankerslev, 29
Ga. App. 624, 116 S. E. 212.
§ 749. (§ 604.) Bond must be approved. — All
bonds taken from contractors or proprietors must
be approved by the ordinary, filed in his office
and by him recorded in books kept for that pur-
pose.
§ 750. (§ 605.) Additional bond may be re-
quired.— If when an additional bend is required
it is not given within ten days from the time the
proprietor, or his agent is notified by the ordi-
nary, the license must be revoked.
§ 751. (§ 606.) Roads, bridges, etc., to be kept
in repair. — When any such work shall require re-
pairing, it is the duty of any one or more road
commissioners, in whose road district the same is.
to give notice in writing to the contractor or one
of his sureties, stating the repairs necessary to ibe
made, and requiring them to be done within a
reasonable time, stating the time.
§ 752. (§ 607.) Repairs, by whom to be made.
— If such repairs are not made within the time re-
quired, they shall employ some other persons
forthwith to make them, and upon report to the
ordinary of their cost, he shall issue an execu-
tion against such contractor and his sureties for
the expense of such repairs and the costs.
§ 753. (§ 608.) If defendant resists payment
ment of such execution, how tried. — If the de-
fendant resists the payment of said execution at
law, it must be returned for trial by jury, if de-
manded, either to the justice's court of the dis-
trict where the defendant resides upon whose
property the levy is made, or to the superior court
of the county according to the principal amount
thereof.
§ 754. (§ 609.) Contractors can not be road
cemmissioners. — Persons who have undertaken
7]
§ 755
BRIDGES AND FERRIES BETWEEN COUNTIES
§ 755
the building or keeping in repair any bridge, ferry,
turnpike, or causeway, or are surety for such per-
sons, can not be road commissioners of the road
district which embraces such, and if, having been
appointed, they become such contractor or surety,
the ordinary must declare a vacancy and appoint
some other persons in their stead. Acts 1818,
Cobb, 949.
SECTION 4.
Bridges and Ferries between Different Counties.
§ 755. (§ 610.) Bridges, etc., crossing county
lines, how kept up. — When a bridge or ferry is
necessary over any watercourse which divides one
county or more counties from each other, each
county must contribute equally toward the build-
ing and keeping the same in repair, or in such
proportion as would be just, taking into con-
sideration the taxable property of each, and the
amount expended by each in construction of
bridges and other passways.
(a) Provided, That whenever it becomes neces-
sary to build or repair any public ferry over any
watercourses "in this State, which divides one or
more counties from each other, the Ordinary,
County Commissioners of Roads and Revenues,
or other county officers having in charge the
roads, bridges, and revenues of said counties join-
ing at such water courses, shall cause such ferry,
including the approaches thereto through the
swamp immediately bordering such stream and
between the high water marks respectively of
such stream, to be built or repaired by letting out
the contract therefor at either county site agreed
upon by such said proper county officials to the
lowest bidder at public outcry, after advertising
the letting out of such contract by giving notice
in the public gazette wherein the sheriff's sales
for such of each said adjoining counties are ad-
vertised, once a week for four weeks and by
posting a written notice at the court house door
of said adjoining counties respectively, which ad-
vertisements and notices shall embrace such de-
tails and specifications as will enable the public
to know the extent and character of the work and
the terms of payment, and said officials shall
make out and post in a conspicuous place in their
offices respectively complete and minute specifi-
cations of the proposed work, which shall be
opened to the inspection of the public, and such
said officers may in their discretion employ some
competent engineer to examine and prepare plans
and specifications of such proposed work for
which services he shall (be paid reasonable com-
pensation by said counties in the same proportion
as said counties are required to pay for said con-
struction work.
(b) Contractors who are awarded contracts
under this section may, in the discretion of the
proper county authorities of such said counties,
be required to give bond in the double amount of
bid, with two good and solvent securities who
shall testify before signing said, bond, conditioned
for the faithful performance of the contract, and
to indemnify the counties for any damages occa-
sioned by a failure to perform said contract within
the time provided, and to keep said ferry and the
approaches thereto in a good and safe condition
for a period of time not less than seven years, and
there shall be as many originals of said bond
executed as there are counties interested in said
ferry and the approaches thereto, one of said
originals to be filed with the proper authorities
representing each of said counties to be kept as
other official bonds.
(c) Provided, That such county authorities
shall have authority to reject any and all bids, and
if in their discretion the public interest and econ-
omy require it, such county authorities may
build or repair any such ferry or approaches
thereto, or ferry or approaches thereto Iby con-
tract or sealed proposals, or otherwise, according
to the method deemed in their discretion to be to
the best interests of the counties respectively
joined by such ferry.
(d) Provided, That counties operating chain
gangs, or a chain gang, may dispense with ad-
vertising for bids, with bids, with proposals and
specification, and may, in their discretion, work
the chain gang in building such ferry and the ap-
proaches thereto, either or both and to build such
ferry and the approaches thereto, or such ferry or
the approaches by convicts, buying such material
and using such money as is necessary for
such purpose of building such ferry and the ap-
proaches, or ferry or the approaches thereto,,
according to what the proper authorities
of the counties respectively joined by such ferry
may decide to be to the best interest of the'counties
respectively so joined, and may so repair same.
(e) Provided, That neither of such said counties
shall build such ferry and the approaches there-
to, or such ferry or the approaches thereto, unless
clone so individually by such said county, in
such said county's territory only, without ex-
pense to the other of such said counties and
without any liability to the other of such
said counties occurring outside the territory of
such said county, except by the consent of a major-
ity of the proper authority of each of such
said counties respectively to be joined by such
ferry, that is, there must be a majority in each of
such said counties to be joined by such said ferry
of the proper county officials of each of such said
counties consenting thereto. Provided, That
when such ferry is once established by such said
consent of each county respectively so joined by
such said ferry, then it shall be the duty of both
counties jointly to repair such ferry and the said
approaches thereto" so as to keep the same in a safe
condition for use by the public, and either of such
counties may make such repairs upon such ferries
and the approaches thereto as is necessary and
it shall be the duty of each county to maintain
constantly in good condition such ferries and the
said approaches thereto so as to keep the same
open for the safe and uninterrupted travel of the
public at all times and to build up such ferries as
often as may be necessary to accomplish such
purpose. If either of such counties refuses or
fails to do so after reasonable notice, the other
county may repair or build up such one estab-
lished ferry and the said approaches thereto,
by contract or the use of its convicts as to
such county may seem best, and compel
by suit, if necessary the delinquent county
[ 158 1
§ 755
PRIVATE FERRIES AND BRIDGES; TOLLS, ETC.
§ 759
to reimburse said county for the actual costs of
so doing, provides further that such coun-
ties may, if in their discretion they deem it
advisable, contract with some competent persons
that such person maintain and keep in repair such
ferry and such said approaches thereto, either or
both; such person accepting the contract to give
bond with two good and solvent securities, condi-
tioned to pay such damages as ma}' occur by vir-
tue of such person failing to keep said ferry and
the approaches thereto or ferry and said ap-
proaches thereto, in proper state of repair so as
to be safe, which said bond shall be executed and
filed as hereinbefore provided for contractor's
bonds, the consideration of such contract to be
agreed upon jointly by the proper county authori-
ties of the counties respectively so joined by such
ferry.
(f) The counties thus joined by such ferry shall
be jointly liable for negligence in keeping such
ferries and such said approaches thereto in proper
state of repair, except, however, in the event that
the contract for keeping, such ferry and the ap-
proaches thereto shall be let to another as herein-
Ibefore provided, then, in such event, the said per-
son so contracting and giving such bond as here-
in provided, and his securities shall each jointly
and severally, as also shall their heirs, executors,
administrators and assigns, be liable for a failure
to keep and maintain such said ferry and such
said approaches thereto in a good and safe state
of repair at all times open to the safe use of the
public in which event the counties shall not be
liable.
(g) Such counties .shall not jointly build, repair
or maintain or be liable for damages occurring
outside of such county's own territory, for a dis-
tance in the territory of the opposite county of
more than one and one-half miles, and such said
counties may jointly build, maintain and be liable
only to the extent as hereinbefore in this Act
provided.
(h) Such said counties may operate said ferry
free or for reasonable toll, and may either employ
a ferryman or may contract with someone to
operate the ferry and to keep and maintain such
ferry and such approaches in a good safe and
proper state of repair. In the event of contract-
ing for the operation of such ferry the party con-
tracting for the operation of such ferry shall give
bond with two good and solvent securities condi-
tioned for the faithful performance of his duty as
a ferryman and to keep, repair and maintain such
said ferry and such said approaches thereto in a
good, safe and proper state of repair and to be
liable for all damages Iby virtue of a failure to do
so, and in the event of the counties taking such
bond the counties shall not be liable for damages;
such bond to be executed and filed as hereinbefore
provided for with reference to contractor's bonds.
The amount of toll to be charged to be fixed
jointly bjr the proper officials of such said coun-
ties so joined by such ferry.
(i) The term "proper county authorities," as
used in this Act shall mean the Ordinary, County
Commissioners of Roads and Revenues, or other
county officers having in charge the roads, bridges
and revenues of said counties joining at such
[U
watercourse. Act 1818, Cobb, 949; Acts 1922,
p. 37.
See §§ 419 et seq.
Editor's Note. — All of this section except the first para-
graph was added by the Act of 1922, p. 37. The new por-
tion deals only with ferries and does not affect county
line bridges.
§ 756. (§ 611.) The remedy when one county
refuses to contribute. — If any county refuses to
undergo its fair proportion of such expenses, the
other counties may construct the work, compel
the other to contribute by suit, and, until such
contribution takes place, may have exclusive
control thereof, and charge toll thereon against
all the citizens of the refusing county. Act 1824.
Cobb, 953.
§ 757. (§ 612.) Toll-bridges, etc., crossing county
lines, how licensed. — The toll-bridges or ferries
over watercourses making county lines may be
licensed by either county, and in such cases the
bonds must be approved, filed, and recorded in
the county where the license is granted.
§ 757(1). Causeways and approaches to public
bridges, how maintained between counties. —
When bridges between different counties in this
State have Ibeen established by the co-operative
action of the proper county authorities of adja-
cent counties, it shall be the duty of each county
to maintain constantly the causeways and other
approaches to such bridges within its limits in
such repair as to keep them open for the safe,
free and uninterrupted travel of the public, at all
times, over such causeways and other approaches,
and to build up such causeways and approaches
as often as may be necessary to do so to accom-
plish such purposes. Acts 1913, p. 79.
§ 757(2). Remedy on default of one county. —
If any such county refuses or fails so to do after
reasonable notice, the other county may repair or
build up the causeways and other approaches,
either by contract or by the use of its convicts, as
to such other county may seem best, and compel
by suit, if necessary, the delinquent county to re-
imburse it for the actual cost to it of so doing.
Acts 1913, p. 79.
SECTION 5.
Private Ferries and Bridges; Tolls, etc.
§ 758. (§ 613.) No private ferry shall be es-
tablished, when. — No private ferry charging toll
shall be established on any watercourse within
three miles of where public Ibridges are previously
erected and kept up, but bridges may be erected
at the public expense at places on the same
stream, other than those where bridges are pre-
viously erected, if not violative of any special
provision of the law.
See § 3640.
This section prohibiting the establishment of private fer-
ries within three miles of any public bridge, does not pro-
hibit the establishment of a private ferry within three
miles of a public ferry. Hudspeth v. Hall, 111 Ga. 510,
36 S. E. 770; Greer v. Haugabook, 47 Ga. 282.
§ 759. (§ 614.) Distance, how computed. —
When exclusive right is granted to any person to
prevent others from erecting bridges or ferries.
or the like, within a given distance from the same,
it shall be computed b}^ the course of the stream.
9']
§ 760
PRIVATE FERRIES AND BRIDGES; TOLLS, ETC.
§ 768
§ 760. (§ 615.) Posting rates of toll. — Every
proprietor of bridges ferries, turnpikes, and cause-
ways, where toll is allowed to be charged, must
fix a board in a conspicuous place, as near the
same as practicable, on which shall be the various
rates of toll. Act 1808, Cobb, 946; Acts 1859, p.
65; 1889, p. 52.
§ 761. (§ 616.) Landowner may construct
bridges, etc., on his own land. — Any person who
may be the owner of any land through which a
stream may pass, on both sides thereof, may es-
tablish any bridge or ferry thereon, at his expense,
and may charge lawful toll for crossing, accord-
ing to the rates of other bridges and ferries on
the same stream, or, if none other, the customary
rates over such streams elsewhere. Act 1850.
See 2 Enc. Dig. 543. See § 765. As to prerequisites to
discontinuance, see § 766.
In General.— This section merely grants the privilege to
an owner of land on both sides of a stream to pass from
one side to the other by a private bridge or ferry, and
as incident thereto to pass others upon the payment of
toll. Whelchel v. State. 76 Ga. 644.
No Right to Establish Public Bridge or Ferry.— While
the owner of a private ferry may lawfully charge and col-
lect toll from persons incidentally crossing thereat, he
can not maintain the ferry for use by the public at large.
If he does this, or if he seeks public patronage, or pursues
the business of keeping up the ferry for the public, it
loses its character as a private ferry. Hudspeth v. Hall,
111 Ga. 510, 36 S. E. 770.
This section is only to be understood to apply to a pri-
vate ferry, which the owner of the lands may establish for
his private use, and which he may also occasionally use
for carrying others over and charge toll therefor, but which
he can not commonly and visually use for such purpose, so
as to make the same a public ferry. Greer v. Haugabook,
47 Ga. 282.
If a person owning land on both sides of a stream built
a bridge across it for the use of the public, and charged
tolls, such a bridge was a public bridge. Dougherty County
v. Tift, 75 Ga. 815.
Whether a bridge was built under this section or a char-
ter is a question of fact. Dougherty County v. Tift, 75 Ga.
815.
This section did not contemplate a case where a public
road crossed a bridge, and where a few men obtained pos-
session by a transfer of a mechanic's lien and proceeded to
charge toll without authority granted to them from some
proper source. Whelchel v. State, 76 Ga. 644.
§ 762. (§ 617.) Excessive rates shall not be de-
manded.— If such person shall demand excessive
rates, any person may complain to the ordinary of
the county, and if the rates are excessive, he must
reduce and fix them.
As to forfeiture for excessive charge, see § 764.
§ 763. (§ 618.) Rates to be examined annually.
— The ordinary of each county must once each
year examine the rates charged in their counties,
and keep fixed the rates of toll for the several
bridges, ferries, turnpikes, and causeways within
the limits of their county, which have the right
to charge them, and must enter the same of their
minutes.
§ 764.J (§ 619.) Persons making excessive
charges, how punished. — If any person shall
charge more than the lawful rates, or more than
indicated by the board, for the second offense; in
addition to the fine, he forfeits his franchise. Acts
1859, p. 66.
§ 765. (§ 620.) Fords, bridges, etc., not to be
obstructed. — No person authorized to have a
bridge or ferry on his own land will be permitted
to stop up or obstruct any ford, bridge, or ferry.
See § 761.
[160]
§ 766. (§ 621.) Bridges, etc., not to be discon-
tinued.— After a person has once established such
bridge or ferry, he shall not discontinue the same
without first giving public notice thereof by ad-
vertisement posted on the court-house door and
in a public gazette, if there is one published in the
county, for at least sixty days.
See § 761.
§ 767. (§ 622.) Proprietors liable for neglect. —
Any proprietor of any Ibridge, ferry, turnpike, or
causeway, whether by charter or prescription, or
without, or whether by right of owning the lands
on the stream, are bound to prompt and faithful
attention to all their duties as such; and if any
damage shall occur by reason of non-attendance,
neglect, carelessness, or bad conduct, he is bound
for all damages, even if over and beyond the
amount of any bond that may be given. Act 1805,
Coblb, 945.
See 2 Enc Dig. 557, 561.
Degree of Care Required. — The owner of a bridge franchise
is bound to exercise only such care and diligence in the
construction of his bridge and the keeping the same in
proper order, which every prudent man would exert in re-
lation to the same property, in view of the object and pur-
pose for which the same was erected and used by him.
Tift v. Towns, 53 Ga. 47.
Liability as Owner of Land. — Under this section, the
owner of the land on which a public ferry is situated, un-
less the ownership of the ferry be separated from that of
the land, is liable for negligent torts committed by the fer-
ryman in the performance of his duties as such, whether
the owner object to the use of the ferry or not. Printup
v. Patton, 91 Ga. 422, 18 S. E. 311.
Suspension of Liability During Repairs. — While the pro-
prietor of a toll-bridge is having it repaired, in accordance
with his duty, the floor being taken up and no toll charged,
his relation to the owner as a proprietor of a toll-bridge
is discontinued, and he is not liable under this section to
one injured by reason of the condition of the bridge. Tift
v. Jones, 52 Ga. 538.
Pleading. — Public ferrymen being common carriers, no al-
legation of negligence was necessary in a suit brought to
recover damages for the loss of property accepted for ship-
ment. Deen v. Wheeler, 7 Ga. App. 507, 67 S. E. 212.
A petition originally basing liability on ownership of the
ferry may be amended to include liability as owner of the
land, and proof of either will sustain the action. Deen v.
Wheeler, 7 Ga. App. 507, 67 S. E- 212.
§ 768. (§ 623.) On failure to take bond the
county is liable. — The provisions of the preceding
section apply to all contractors for the estab-
lishment of such, when damages accrue from want
of good faith in performing their several con-
tracts, and if no bond or sufficient guarantee has
been taken by the ordinary, the county is also
liable for the damages.
See § 748. See 2 Enc. Dig. 554.
Editor's Note. — Since the amendment of § 748 by the Act
of 1888, p. 37, the portion of this section dealing with the
liability of counties has been of little importance. Since,
however, the section still applies in some cases, some of the
more important cases will be included in this note. It must
be borne in mind that these cases are not applicable to
county bridges erected since the Act of 1888. See note to
§ 748.
Still Applicable to County Line Bridges. — Where, a pub-
lic bridge was constructed under contract with the author-
ities of one county across a stream dividing it from an-
other (the authorities of the latter refusing to participate
therein), it was the duty of the county authorities causing
the construction of such bridge to take bond in accordance
with this section. Cook v. DeKalb, 95 Ga. 218, 22 S. E-
151. See also, Laurens County v. McLendon, 19 Ga. App.
246, 91 S. E. 283; Wells v. Jefferson County, 19 Ga. App.
455, 91 S. E. 943.
Either County or Contractor May Be Sued. — Action may
be brought either against the contractor or against the
county. It is not necessary that he should sue the con-
tractor to insolvency before he can sue the county. Ar-
nold, etc., Co. v. Henry County, 81 Ga. 730, 8 S. E. 606.
Bond Limited to Three Years. — Where the bond and se-
§ 769
RIGHT OF WAY; GRANTS, HOW CONSTRUED
§ 779
curity required and taken limited the period to three years,
this may be treated as a "sufficient guarantee" contem-
plated by § 691 of the Code, so as to exempt the county
from liability for damages sustained within such period of
three years. Mappin v. Washington, 92 Ga. 130, 17 S. E.
1009.
No Liability after Seven Years. — Where a county let out
the contract for building a bridge to the lowest bidder, but
took no bond from the contractor, and the injury complained
of occurred ten years after the time of building the bridge,
there was no legal liability on the part of the county be-
cause of such injury. Monroe v. Flynt, 80 Ga. 489, 6 S. E-
173. This case overrules Davis v. Home, 64 Ga. 69.
"The liability of the contractor is to keep the bridge in
good repair for seven years, whether he gives a bond for
that purpose or not and the liability of the county does
not extend beyond that." Monroe v. Flynt, 80 Ga. 489, 491,
6 S. E. 173.
Pleading. — Under §§ 748 and 768, when a suit is brought
against a county for damages caused by a want of proper
repairs to a public bridge, it should appear that the bridge
was erected by letting it out to the lowest bidder, and that
no bond was taken from the contractor and both of these
facts should be alleged in the declaration. Collins v. Hud
son. 54 Ga. 25.
SECTION 6.
Liability for Detention, Defective Bridge, Exces-
sive Toll, etc.
§ 769. (§ 624.) Persons shall not be detained at
public crossings. — Any person unreasonably de-
tained at a public ferry, toll-bridge, turnpike, or
causeway, may for each detention recover of the
owner ten dollars before any justice of the county.
§ 770. (§ 625.) Persons charging toll after
charter expires. — If any person demands or re-
ceives toll for crossing any ferry, bridge, or cause-
way, or turnpike, after the revocation of his li-
cense or forfeiture of his charter, or, having a,
right for a ferr}^ allows the banks on either side
to be out of repair for more than five days at any
one time, or fails to provide good and safe boats
of a size sufficient for the accommodation of the
public, furnished with competent and sufficient
ferrymen, for the safe and speedy passage of all
persons, vehicles, horses and stock, or, in case of a
toll-bridge or causeway, fails to keep the same in
good repair, without a reasonable excuse for such
failures, to be determined by the court, he is
guilty of a misdemeanor.
§ 771. (§ 626.) Private ferries. — If any person
who keeps a private bridge, ferry, turnpike, or
causeway, passes any person for toll, the owners
incur the same liability and penalties as those per-
mitted by law.
One who keeps a ferry for his own use is not liable ex-
cept for gross neglect unless he is in the habit of charg-
ing toll. Self v. Dunn, 42 Ga. 528, 530.
§ 772. (§ 627.) Remedy against delinquent bridge
owners. — If any owner of any chartered toll-
bridge or turnpike road, the charter of which was
granted by any of the courts, or by the legislature
of this State, shall fail or refuse to keep the same
in good repair, and in terms of the provisions of
its charter, it shall be the right of any person to
tile with the ordinary of the county in which such
charter was granted, a petition (in writing) setting
forth the parties and the facts, and praying for the
remedy hereinafter set forth. Acts 1872, p. 83.
§ 773. (§ 628.) Citation, service, and jury. — On
the filing of said petition with the ordinary, he
shall issue a citation, directed to the sheriff of said
county, his deputy, or any lawful constable, re-
quring the defendant to appear before him at the
court-house of said county, on a day therein
named, to defend said suit. A copy of said peti-
tion and citation shall be served upon the defend-
ant, either in person or by leaving the same at
his most notorious place of abode, or, if he be
without county, tben upon the gate-keeper, at
least fifteen days before the time for trial. And
said ordinary shall also cause a jury of twelve men
to be summoned to try the issue in such case.
Acts 1872, p. 83.
§ 774. (§ 629.) Issue, oath of jury, continuance.
— 'When said cause is called and set down for trial,
the ordinary shall cause an issue of facts to be
made upon the pleadings and tried before said
jury. The jurors shall take the general oath pre-
scribed for jurors in common law actions in the su-
perior courts of this State: Provided, that either
party shall have the same rights of continuance as
in other cases at common law, and, m case of con-
tinuance, the ordinary shall fix the time of hearing
the same. Acts 1872, pp. 83. 84.
§ 775. (§ 630.) Verdict, and its effects.— On the
return of the verdict of the jury, if the issue be
found in favor of the defendant, judgment shall be
entered against the plaintiff for costs of suit; but
if the issue be found against the defendant, judg-
ment shall be entered against said defendant for
costs of suit, and also suspending his right to col-
lect further tolls on said bridge or road until after
the next term of the superior court of said, county,
after which it shall not be lawful for any tolls to
be collected on any such bridge or road during the
operation of said judgment: Provided, however,
that the owner or any person interested in such
toll-bridge or turnpike road may afterwards put
the same in good repair, and. on making the same
clearly appear to the ordinary, said ordinary may
enter an order vacating said judgment, so far as
the same operates as a suspension of the right to
collect tolls. Acts 1872, p. 84.
§ 776. (§ 631.) Proceedings may be at any time;
fees. — All the proceedings set forth in the four pre-
ceding sections may be had in term time or during
vacation; and the fees of the ordinary for the
whole service shall be five dollars, the jurors one
dollar each for every day engaged, and the sher-
iff's or constable's fees — the usual fees for like
services. Acts 1872, p. 84.
§ 777. (§ 632.) Injuries; avoiding payment— If
any person break or injure any gate to a toll-
bridge, turnpike, or causeway, or obstruct, injure,
or destroy such bridge or causeway, pass around
or under the same with intent to avoid the pay-
ment of toll, such person forfeits to the owner ten
dollars for each of such acts, and is also liable for
the damages.
SECTION 7.
Right of Way; Grants, How Construed.
§ 778. (§ 633.) Right of way.— Damages for the
right of way are to be assessed in the manner pre-
scribed for public roads and private ways.
See §§ 678 et seq., 807 et seq.
§ 779. (§ 634.) Grants to land.— Grants to land
Ga. Code— 6
[161]
§ 780
TURNPIKES AND TURNPIKE COMPANIES
§ 792
on watercourses, with the appurtenances, convey
no right of public, bridge or ferry.
As to the converse of this, see § 3809.
§ 780. (§ 635.) Grant for ferry.— The grant of
a ferry franchise conveys no right to build a
bridge, or the contrary.
§ 781. (§ 636.) Value of land, how estimated.—
In determining the value of land taken for a
bridge, its prospective value as a bridge site and
its present value as a ferry, if one is in use, may
be taken into the calculation.
As to similar provision where land is taken for road, see
§ 689.
ATRICLE 9.
Turnpikes and Turnpike Companies.
§ 782. (§ 637.) Commissioners of turnpikes. —
There shall be in each county of this State,
through which any turnpike road passes, or
through which any part of any turnpike road
passes, a board of commissioners, to be known as
commissioners of turnpikes.
§ 783. (§ 638.) Number and election. — Said
board shall consist of three persons, to be elected
by the grand juries of each county through which
any turnpike road or any part of the same passes,
at their first session; and any person qualified to
vote and hold office under the Constitution and
laws of this State shall be eligible as such com-
missioner. Acts 1878-9, p. 74.
§ 784. (§ 639.) Report and certificate of election.
— The several grand juries so electing commis-
sioners shall report the fact of such election in
their general presentments at the term at which
the same occurs, giving the names of the persons
so elected; and thereupon the clerk of the su-
perior court of the county shall issue to each of
said persons so named a certificate of his election
and appointment, which shall have the force and
effect of a commission. Acts 1878-9, p. 74.
§ 785. (§ 640.) Term of office. — The commis-
sioners selected shall hold their offices for the
term of two years, and until their successors are
elected in the manner first herein pointed out.
Acts 1878-9, p. 74.
§ 786. (§ 641.) Duty of commissioners. — It shall
be the duty of said boards of commissioners to
inspect the condition of any and all turnpike roads
in their counties as often as every three months,
and to see to it that such roads are kept in good
condition to be traveled over, and are graded ac-
cording to the terms of their charters, respectively;
and that the tolls charged are not greater than
allowed by such charters. Acts 1878-9, p. 74.
§ 787. (§ 642.) Maximum grade of turnpike. —
The maximum grade of all turnpike roads in this
State shall not exceed one foot in fifteen, unless a
steeper grade has been allowed in the charter.
Acts 1884-5, *p. 125.
§ 788. (§ 643.) Penalty. — The owner and man-
ager of turnpike roads in this State shall have six
months after October 3d, 1885, to grade and con-
struct their roads in conformity to the provisions
of the preceding section, and upon failure so to
do, their charter shall be subject to be forfeited as
now provided by law. Acts 1884-5, p. 125.
§ 789. (§ 644.) Judges to fix grade of turnpike. —
The judges of the superior courts of this State, in
granting charters to incorporate turnpike road
companies upon application, may in their discre-
tion prescribe the grade of such turnpike roads,
which shall be reasonable and fair, taking into
consideration the elevation of the ground upon
which such turnpike roads are to be constructed.
Acts 1890-3, p. 224.
§ 790. (§ 645.) Tolls on turnpikes not collectible
unless kept in repair. — It shall be unlawful for
any owner of any turnpike road, or keeper of any
toll-gate upon any turnpike road in this State, to
demand or collect toll from any person for travel-
ing over such road, when it is not kept repaired
so as to comply with the terms of its charter.
Acts 1882-3, p. 134.
§ 791. (§ 646.) Proceedings against defaulting
owners of turnpikes. — Whenever it shall be ascer-
tained that any turnpike road is being used and
kept as such by its owners, and ^s not graded as
required by its charter, the commissioners afore-
said shall make out a statement, wherein shall be
specified, as nearly as may be, the defects in such
road, a copy of which shall be served upon the
keeper of the toll-gates on such road, which shall
be deemed and held as service upon the owners
of such turnpike; and should such owners fail or
refuse to make such road in compliance with the
terms of its charter, for thirty days after such
notice, it shall be the duty of such commissioners
to forthwith institute suit against such owner,
owners, or company, to forfeit its charter, which
suit shall be in the name of the commissioners.
Acts 1876-7, p. 74.
See 12 Enc. Dig. 415.
§ 792. (§ 647.) Duy of commissioners as to
turnpikes out of repair. — In all cases where turn-
pike roads are neglected and suffered to get into
such condition that they can not be traveled over
comfortably by travelers, and drayed over suc-
cessfully, the commissioners aforesaid in the
counties where such roads are shall notify the
keeper of the toll-gates on such road of the con-
dition of the same, and unless such road is im-
mediately repaired and put in good condition,
such commissioners shall institute the proceeding
provided for in section 791, and on the trial of
said case, provided for in this section, if the fault
or failure of such owner, company or corporation
should be deemed insufficient to authorize the
forfeiture of its charter, the measure of damages
to the public may nevertheless be estimated in
dollars and cents by the jury trying such case,
judgment for which may be entered against such
owner, company or corporation, and when col-
lected shall be paid over to the county school
commissioner and paid out as part of county
school fund. Acts 1878-9, p. 74; 1882-3, p. 83.
See 12 E)nc. Dig. 415.
Venue. — An action against a turnpike company to com-
pel it to keep its road in repair may be brought in the
county where a portion of said turnpike is located, if an
agent be found therein to look after the road, though said
agent may reside in another county. Habersham, etc.,
Turnpike Co. v. Taylor, 73 Ga. 552, 556.
Penalty Where No Damage. — The latter part of this sec-
tion prescribes a penalty which may be imposed upon such
defaulter, the amount of which the jury may fix under all
[ 162
793
MINING RIGHTS OF WAV
§ 801
:he circumstances of the case, though no actual damages
:o the public be proved. Vernon Shell Road Co. v. Davis,
10 Ga. 324, 35 S. E. 316.
Effect on Prior Charter. —A turnpike company chartered
jy, the laws of the State is subject to general police regu-
ations prescribed by the legislature; and a statute enacted
ifter the grant of such charter, providing a remedy by pro-
:eedings for damages or to forfeit the charter on account
)f a failure of the company to discharge its obligation to
he public, does not impair the obligation of any contract,
>rovided such act does not materially abridge the rights of
he company or increase its burdens. Davis v. Vernon
shell Road Co., 103 Ga. 491, 29 S. E. 475.
§ 793. (§ 648.) Compensation of commissioners.
—Each commissioner shall receive, as compensa-
;ion, one dollar per day for the time actually
spent in inspecting roads, and all necessary ex-
penses actually incurred by them in consequence
)f the prosecution of any suit as herein provided
:or, to be paid by the county of such commis-
sioners. Acts 1878-9, p. 74.
§ 794. (§ 649.) Extent of jurisdiction.— In cases
vhere any turnpike road, the property of the same
)wners, or company, runs through or into more
rounties than one, it shall be competent for the
•ommissioners, in either of the counties in which
my part of said road may be, to perform all the
luties herein imposed, and to institute and main-
ain the suits herein provided for, without the co-
deration of the commissioners of the other
:ounty or counties through which such road
)asses, and any judgment of forfeiture so obtained
;hall apply to the whole road. Acts 1878-9, p. 74.
ARTICLE 10.
lights of Way for Persons Engaged in Mining.
§ 795. (§ 650.) Mining rights of way. — Any
>erson, or corporation, or company of persons, or
orporation chartered under the laws of any State
)f the United States, who may be actually en-
gaged in the business of mining iron, copper, gold,
oal, or any other metal oj mineral; in quarrying
narble, granite, or any other stone; or in making
opperas, sulphur, saltpeter, alum, or other similar
.rticles, and may need for the successful prosecu-
ion of such business a right of way for a rail-
oad, turnpike, or a common road across the lands
)f others, such right of way may be obtained in
he same manner that the right to convey water
cross the lands of others may be acquired by the
iwner of mines, as provided by the Code. Acts
.887, p. 35; 1904, p. 51.
Constitutionality. — This and the following sections (§§ 795-
03), are a constitutional exercise of legislative authority,
ones & Co. v. Venable, 120 Ga. 1, 47 S. E. 547.
Foreign Corporations. — Sections 795-803, apply only to cor-
orations chartered within this State. Chestatee Pyrites
)o. v. Cavenders Creek Gold Min. Co., 119 Ga. 354, 46 S.
J. 422.
§ 796. (§ 651.) Arbitrators' duty.-— The arbitra-
ors selected as provided by the Code, shall de-
:ide both as to the necessity for the right of way
ought to be condemned, and the compensation
o be paid to the landowners therefor. Acts 1887,
). 35.
§ 797. (§ 652.) May divert watercourses. — In all
:a'ses where it may be deemed desirable and
tecessary to divert any watercourse from its
isual channel, for any of the purposes specified in
section 795, it shall be lawful to organize the
>oard of arbitrators, whose duty in relation to
[1
the same shall be to decide both as to the neces-
sity of diverting the watercourse, and who are
damaged, and how much.
§ 798. (§ 653.) Mining, privileges incidental
thereto. — The owner of any mine shall have the
right to enter upon any land between the mine
and the water-power upon which the same is de-
pendent, and to cut thereon such ditch, canal, or
tunnel, or to construct such flume or other aque-
duct, and to build such dam as may be necessary
to control said water-power: Provided, that the
party desiring to cut such ditch, canal, or tunnel,
or to construct such flume or other aqueduct, or
to erect such dam, shall first have the damages
assessed arising to the owner of such intervening
land, or owner of the land on which such dam is
to be erected, by reason of the cutting of such
ditch, canal, or tunnel, or the construction of such
flume or other aqueduct, and the erection of such
dam, and shall pajr to the owner of the land so
intervening, or on which such dam is to be
erected, the damages which may be assessed in
the manner hereafter provided. Acts 1868, pp. 139,
140.
See § 5235.
§ 799. (§ 654.) Application for privileges. — The
owner of the mine shall, after having given the
owner of the land to be entered upon at least five
da3rs notice of his intention to make such applica-
tion, present to the ordinary of the county his
written application for the right and privilege of
cutting such ditch, canal, or tunnel, or constructing
such flume or aqueduct, or erecting such dam. Acts
1868, pp. 139, 140.
§ 800. (§ 655.) Draining privileges, how ob-
tained.— The owner of any mine shall have the
right to enter upon any land, and to cut and open
thereon such ditches, canals, and tunnels, or to
construct such flumes or other aqueducts, or such
rope, wire, track, or other tramway- , or such
wagonway, as ma}' be necessary to drain his mine,
or to carry off and drain away the water and tail-
ings of such mine or mining operations, or to
carry off and transport any crude ore from such
mine or mining operations to the mill or other
place of reduction where such ore is to be
treated: Provided, that the party desiring to cut
and open such ditches, canals, or tunnels, or to
construct such flumes or other aqueducts, or
such rope, wire, track, or other tramway, or such
wagonway, shall first have the damages assessed
arising, or which may arise, to the owner of
such land by reason of the cutting and opening
of such ditches, canals, or tunnels, or the con-
struction of such flumes or other aqueducts, or
such rope, wire, track, or other tramway, or such
wagonway; and shall pay the owners of such land
the damages which ma)' be assessed. Acts
1895, p. 20.
§ 801. (§ 656.) Application and proceedings
thereon. — The owner of the mines who desires
the right and privilege of cutting and open-
ing such ditches, canals, or tunnels, or of con-
structing such flumes or other aqueducts, shall
make his application under and according to the
provisions and requirements specified in this
Code, and all proceedings in relation thereto shall
be had, and the damages shall be assessed and
paid, according to the method of condemning
63 ]
§ 808
PRIVATE WAYS
§ 80
land in this Code provided, all of which are ex-
tended to the owners of mines desiring to drain
their mines, and to carry off the water and tail-
ings from their mines and mining operations,
through or over the land of others. Acts 1870,
p. 2G5.
See § 5235.
§ 802. (§ 657.) Lessee of mine deemed the
owner. — Any person or company of persons en-
gaged in working a mine, under a lease for that
purpose, shall be held and regarded as owner or
owners, and as such shall be entitled to avail
himself or themselves of the benefits and privi-
leges of this Article. Acts 1868, pp. 140, 141.
§ 803. Amount that may be withdrawn and car-
ried away. — In no instance shall water greater
in amount, measured in cubic feet, than the sur-
plus be withdrawn and carried away entirely
from a stream above any mill or factory now in
operation, and surplus water to be that full
amount of water that would run to waste with a
tight mill dam at such mill or factory; and this
provision shall apply as fully to owners of mines
as to lessees of mines. Acts 1868, p. 140; 1897,
p. 21.
,in Nermandale Lumber Co. v. Knight, 89 Ga. Ill, 14 !
E. 882.
§ 806. (§ 660.) Cessation in use of. — If sue
tramwa3r so laid out shall at any time cease to b
used for such purposes, then the land so err
ployed for such way shall in its use revert to th
owner thereof.
ARTICLE 11.
Tramroads.
§ 804. (§ 658.) Tramways. — Any person, or
corporation, desiring to build or construct any
tramways to connect with any waterway or
railway, in this State, for the purpose of trans-
porting lumber, naval stores, and timber by
means of the same, may make application, in
writing, to the ordinary or county commissioners
of the county in which such tramway is to be lo-
cated, setting out the length of such way, to-
gether with the place of starting and the termi-
nus of the same and the line of its location as
near as may be. Acts 1887, p. 103.
Must Be Necessary. — This . section applies only in cases
of necessity. Hutchinson v. Caldwell Lumber Co., 146 Ga.
356, 91 S. E. 208; Alaculsey Lumber Co. v. Shippen Bros.
Lumber Co., 143 Ga. 296, 84 S. E. 767; Valdosta, etc., R.
Co. v. Adel Lumber Co., 136 Ga. 559, 71 S. E. 803; Nerman-
dale Lumber Co. v. Knight, 89 Ga. Ill, 14 S. E. 882.
The procedure for the condemnation of a right of way for
a tramroad under this section, is that prescribed in §§ 5206
et seq. Hutchinson v. Copeland, 146 Ga. 357, 91 S. E. 206.
Limited to Fifteen Feet. — Where, in an attempt to con-
demn land for a right of way, the notice states that a strip
twenty feet wide is to be condemned, this is manifestly not
an attempt to apply this and the following sections. Gar-
butt Lumber Co. v. Georgia, etc., Railway, 111 Ga. 714,
36 S. E. 942.
May Be Ground for Injunction. — The pendency of a pro-
ceeding to condemn land as a way of necessity for a tram-
road, under this section, is such a pending proceeding as
to give the superior court of the county where the con-
demnation proceeding is pending jurisdiction to entertain a
petition to enjoin such proceeding. Hutchinson v. Cope-
land, 146 Ga. 357, 91 S. E- 206.
§ 805. (§ 659.) Proceedings to lay out road. —
When the application aforesaid is filed in the of-
fice of the ordinary, as aforesaid, or county com-
missioners, as the case may be, all the proceed-
ings thereafter shall be the same as are now al-
lowed and directed by this Code for condemning
property, except that the strip of land to be used
for such purpose shall not exceed in width fif-
teen feet.
See § 5235.
The successive steps in the proceedings are enumerated
ARTICLE 12.
Private Ways.
§ 807. (§ 661.) Private ways, by whom grantee
— The ordinaries have authority to grant privat
ways to individuals to go from and return t
their farms or places of residence. Acts 183^
Cobb, 955; Acts 1853-4, p. 88.
See § 3641. See 9 Cum. Dig. 607, 10 Enc. Dig. 608.
In General. — There is no other provision of law whic
gives ordinaries jurisdiction to grant private ways over th
lands of others, or to cause to be removed obstruction
from private ways existing over lands of others, excet
as indicated in §§ 807. 825. Porter v. Foster, 146 Ga. 15'
90 S. E. 967.
Way Must Be Necessary. — In a proceeding under th
section, to condemn a private way over the lands of ar.
other person, in order to entitle the applicant to relief
must appear that the way sought by him is absolutely iu
dispensable as a means of reaching his property. Wyatt j
Hendrix, 146 Ga. 143, 90 S. E- 957. See also, 9 Cum. Dij
618; 10 Enc. Dig. 614.
This section is to be construed in the light of the cor
stitutional provision, § 6388; and this power is restricted t
"cases of necessity." Chattanooga, etc., R. Co. v. Phil
pot, 112 Ga. 153, 154, 37 S. E- 181.
Different from Proceedings under § 825. — In proceeding
under this and the following sections to acquire .private ease
ments, the questions involved are different from those i
a proceeding under § 825, to remove obstructions from a
existing private way, and the notice required to be give
to the landowner in each instance is different, as is als
the judgment to be rendered by the ordinary. Porter t
Foster, 146 Ga. 154, 90 S. E. 967.
Existing Easements Not Contemplated. — The statutor
provisions giving ordinaries authority to grant privat
ways over the lands of others to individuals to go to an
return from their farms or places of residence (§§ 807-811
contemplate the grant of easements that did not exist, an
provide due notice and a hearing for the owner of th
land before his property is taken, and, compensation fc
the injury done. Porter v. Foster, 146 Ga. 154, 90 S. I
967.
No Choice of Way Where Reasonable Way Tendered.-
The applicant is not entitled to choose his route, wher*
the landowner has tendered him a way reasonably con
venient to both parties. Wyatt v. Hendrix, 146 Ga. 14.1
90 S. E. 957.
Ordinary May Not Declare Way Permanent. — This sec
tion et seq. prescribe the manner in which private way
may be opened; but the law does not authorize the ordi
nary or county commissioners to declare a private way t
be permanent. Herndon v. Strickland, 86 Ga. 323, 12 J
E. 642.
§ 803. (§ 662.) Not more than fifteen feet wid<
— They must not exceed fifteen feet in width, an
must be kept open and in repair by the perso
on whose application they are established, an
may be as much less as the applicant may choost
See 10 Enc. Dig. 608. See notes to § 804.
Editor's Note. — A number of cases have arisen whic
involve the effect of this section on the acquiring of way
by prescription. These cases will be found under §§ 81!
824, and 825.
Duty to Repair. — Those who use a private way must kee
the same in repair, and can not take advantage of thei
own default by turning out to avoid obstructions whic
they should have removed. Kirkland v. Pitman, 122 Gi
256, 50 S. E. 117.
§ 809. (§ 663.) How obtained. — Any person dc
siring any such passway over the land of anothe
must petition the ordinary, setting forth partic
ularly the distance and direction of such roa(
over whose land it is to go, through what in
[164]
810
PRIVATE WAYS
§ 819
-ovements, if any, and their nature, and the
>ecial purpose for which it is desired.
§ 810. (§ 664.) Twenty days notice, appeal, etc.
-After all persons over whose lands such pass-
ay is to he made shall have had twenty days
Dtice, in writing, of such application, and such
•dinary shall be satisfied that such applicant is
ititled to the same, he shall appoint five com-
issioners who shall be disinterested persons,
iy three or five of whom may act, to view and
y out such road, so as to do the least possible
image and inconvenience to the landowners,
ho shall make their report within thirty days
om their appointment. They shall make out
:eir report in writing, and furnish all the par-
is in interest with copies thereof; and if either
irty is dissatisfied with such report, by giving
e other five days notice in writing, he may
ke an appeal to the ordinary, who, after hearing
I the evidence pro and con, may confirm said
port or alter the same, which when done shall
: final. Acts 1851-2, p. 281.
see 9 Cum. Dig. 609; 10 Enc. Dig. 608.
Necessity for Notice. — The required notice is a condition
^cedent to the jurisdiction of the ordinary, and if not
ren within the time prescribed the application should be
-missed on motion. Porter v. Foster, 146 Ga. 154, 90 S.
967.
same — Estoppel. — Where the party over whose lands a
vate way was sought was present at the hearing be-
e the ordinary, and made no objection to the appoint -
:nt of commissioners, he is estopped from setting up
it he was not served with notice of time and place of
iring, and from complaining of the appointment of com-
ssioners. Green v. Reeves, 80 Ga. 805, 6 S. E- 865.
Necessity for Evidence. — All that this section requires
that the ordinary shall be satisfied that applicant is
:itled to the road; if objections were properly filed, per-
ps it would be necessary for him to hear evidence; but
none are filed, and the person over whose lands the way
sought be present, not objecting, he may take it for
mted that the applicant is entitled. Green v. Reeves,
Ga. 805, 6 S. E. 865.
Questions Involved. — On the hearing of a petition for a
vate way, the question as to who is to use it when es-
)lished is not involved. Summerville, etc., Road Co. v.
utscher Scheutzen Club, 62 Ga. 318.
Chese provisions of the code contemplate the location
a way to be selected by the commissioners, and not the
:re adoption of an existing temporary way. Porter v.
ster, 146 Ga. 154, 90 S. E. 967.
§ 811. (§ 665.) Damages, how assessed. — If
e person then, over whose land the passway is,
•nceives that he will be damaged thereby, he
ay proceed to have the damages assessed in
e same manner that damages are assessed in
se of public roads, and the applicant there'
re stands in the place of 'the county and road
mimissioners. Acts 1851-2, p. 281.
Jayment Not Prerequisite to Appointment of Commis-
ners. — While it is true that the applicant must pay the
mages, which the owner may have legally assessed be-
e she opens the road, such payment is not a prerequi-
e to the appointment of commissioners and laying out
; roads. Green v. Reeves, 80 Ga. 805, 6 S. E- 865.
§ 812. (§ 666.) Applicant may decline to open
e way. — After the damages are thus assessed,
e person who has them to pay may decline to
>en the same, but he is bound for the costs of all
e proceedings, whether Ke uses the passway or
)t, for which the ordinary may issue an execu-
}n; and in all cases the damages must be paid
:fore the wa}^ is opened.
§ 813. (§ 667.) May be established by agree-
ent. — Private ways may be established by an
^reement in writing of all parties concerned, in
which may be stipulated any damages, which must
be spread on the road-book of the county, and,
when so done, has the same effect as though estab-
lished by the forms of law.
§ 814. (§ 668.) Recorded and protected. — When
a private way becomes established, it must be en-
tered on and fully described in the road-book, and
the owner thereof is entitled to be protected in the
use of the same as a public road.
§ 815. (§ 669.) Landowners may join in open-
ing a way. — Several landowners may join to-
gether in opening a private way, or in keeping it
up afterwards, or both; and when so done and en-
tered on the road-book, the duties and privileges
extend to vendees of the same real estate.
This section does not refer to the right of prescription.
Thompson v. Easley, 87 Ga. 320, 13 S. E. 511.
§ 816. (§ 670.) May apportion the work.— When
several so join, they may apportion) the road for
work among themselves, or work it under the road
laws, selecting one of their numbers as road com-
missioner, whose powers are the same touching
such road and the hands thereof as the three road
commissioners of the district.
§ 817. (§ 671.) On wild lands. — If a private way
is established over the wild lands of a person who
has no notice of the proceeding, as soon as he does
have such notice, and within six months there-
after, he may proceed to have his damages as-
sessed against all persons who are landowners and
are in the habitual use of such private way, and
not after.
Meaning of "Established." — In Watkins v. Country Club,
120 Ga. 45, 47 S. E. 538, it is said "apparently the word
'established,' in § 671 [this section] and the words 'laid out'
in § 672 [§ 818] of this Code, have the same meaning, that
is, the laying out of way under order of the ordinary."
§ 818. (§ 672.) Prescriptive right of way. — When
a person has laid out a private way, and has been
in the use and enjoyment of it as much as seven
years, of which the owners have had six months'
knowledge without moving for damages, his right
to use becomes complete, and such owners are
barred of damages.
See §§ 817, 819, 824, .825 and notes thereto.
Editor's Note.— In Watkins v. County Club, 120 Ga. 45,
47 S. E- 538, this section is clearly distinguished from § 824.
The court declares that this section applies only to private
ways laid out under statutory proceedings, and not to
ways acquired by prescription. In numbers of cases involv-
ing prescription, the section has been cited together with
§§ 824 and 825. The court takes notice of this fact in the
case cited above, but declares that the citation was not
necessary to the decision, and that the section could not
have been applied in those cases.
In view of this holding the cases involving prescription
are annotated under §§ 824 and 825.
Applicable to Statutory Ways. — The w.ords "'six months'
knowledge" and "without moving for damages" are appli-
cable to ways laid out by statutory proceedings and not
to prescriptive ways. Watkins v. Country Club, 120 Ga.
45, 47 S. E. 538.
§ 819. (§ 673.) Can not be closed after one year
without notice. — When a road has been used as a
private way for as much as one }-ear, an owner of
land over which it passes can not close it up with-
out first giving the common users of the way
thirty days notice in writing, that they may take
steps to have it made permanent.
See §§ 825, 818 and notes. See 9 Cum. Dig. 610; 10 Enc.
Dig. 616; 9 Cum. Dig. 612.
Way Need Not Be Established. — In order to entitle one
who has used and maintained a road as a private way for
as much as one year to the notice prescribed by § 819, it
[165]
§ 820
PRIVATE WAYS
§ 82*
is not necessary that the way so used and maintained should
have been actually established as a private way; but such
a use for only that limited period is sufficient to give to
the common user such an inchoate right as will entitle him
to the notice mentioned before the landowner will be per-
mitted to close the way. Ford v. Waters, 27 Ga. App. 83,
107 S. F. 351.
Removal of Obstructions. — The summary remedy provided
in § 825, is applicable alike to prescriptive ways as de-
scribed in § 824, and to private ways used for as much as
one year where the landowner fails to give 30 days' no-
tice under this section. Johnson v. Williams, 138 Ga. 853,
76 S. F. 380; Ford v. Waters, 27 Ga. App. 83, 107 S. E.
35L
An applicant for the removal of an obstruction from a
private way may base his right to relief upon both this
section and § 824; but in the event the applicant prevails
and removal of the obstruction is ordered, the judgment of
the ordinary should show upon which claim of the applicant
it rests, — whether upon a finding that the applicant has a pre-
scriptive right to the way, acquired by seven or more years'
use, or upon a finding that the applicant had used the road
for as much as one year and the landowner had closed it
without giving 30 days' written notice of his intention so
to do. Tohnson v. Williams, 138 Ga. 853, 76 S. E- 380; Ford
v. Waters, 27 Ga. App. 83, 107 S. F. 351.
Under a proceeding to cause obstructions to be removed
from a private way, based on the Act of 1872 (§§ 824, 825),
and alleging solely that the way was one established by
prescription for more than seven years, the applicant is
not entitled to a judgment by proof that the road has been
in vise as a private way for more than a year, and that the
owner has closed it without giving to the common users
thirty days' notice in writing, in order that they might take
legal steps to have it made permanent, as required by this
section. Nugent v. Watkins. 129 Ga. 382, 58 S. F- 888. See
also Fraley v. Nabors, 131 Ga. 457, 62 S. F- 527; Gardner
v. Swann, 114 Ga. 304, 40 S. F. 271.
The burden of proving notice is upon him whose duty it
is to give it. Powell v. Amoss, 85 Ga. 273, 11 S. F. 598.
Application. — Where a landlord leases a farm and per-
mits the tenant to open thereon a road for his own conven-
ience and the convenience of the community, and, after the
expiration of the lease and the removal of the tenant from
the land, the tenant and others are permitted for more than
one year to use the road, another tenant, who has succeeded
the first, can not, though so authorized by the landlord,
close the road without giving the thirty days' notice re-
quired by this section. Dodson v. Scarborough, 110 Ga. 4,
35 S. F. 291.
§ 820. (§ 674.) Special ways. — When a private
way is established over the land of another for
the purpose of hauling wood or timber, or other
commodity, to any place of landing whereat the
business of rafting or shipping is carried on, or to
any railroad depot, it shall not extend to the use
of any landing erected by a person for his own
benefit.
§ 821. (§ 675.) If there is but one bluff.— If,
however, there should be but one bluff or place of
landing, the owner can not appropriate such to
himself exclusively, if he will not be damaged by
the admission of others to its use, or, if damaged,
he is properly compensated therefor; but no per-
son shall be entitled to use the wood-slide or other
improvement erected for one's own use, nor tim-
ber landing, while he is using it. Acts 1853-4, p.
90.
§ 822. (§ 676.) The use of another's landing.—
When the applicant for a private way desires also
to use another's landing, he must so state in his
petition, that proper damages may be assessed
therefor.
§ 823. (§ 677.) Omission to assess damages. — If
a private way is established and there is an omis-
sion to have considered the damages for using
such, it may be done afterwards if within a reason-
able time.
§ 824. (§ 678.) Prescriptive right of way. —
Whenever a private way has been in constant and
uninterrupted use for seven years or more, and n(
legal steps have been taken to abolish the same
it shall not be lawful for any one to interfere wit!
private way. Act 1872, p. 60.
See §§ 818, 819, 825 and notes thereto. See 9 Cum. Dig,
609; 10 Fnc, Dig. 609.
Requisites — In General. — To entitle one to a prescriptive
right of way over the land of another it must be showr
that the prescriber has been in the uninterrupted use of a
permanent road over the land, not exceeding fifteen feel
in width, and that he has kept it open and in repair fot
seven years. Johnson v- Sams, 136 Ga. 448, 71 S. F. 891
Collier v. Farr, 81 Ga. 749, 7 S. F- 860; Childers v. Holo
way, 69 Ga. 758; Nott v. Tinley, 69 Ga. 766. See also, £
Cum. Dig. 609, 615; 10 Fnc. Dig. 609, 610, 612.
Where a private way is claimed by prescription, the par-
ties setting up such claim must bring themselves strictly
within the requirements of the law. Nott v. Tinley, 69 Ga
766. The necessary requisites must affirmatively appear,
Brown v. Statham, 21 Ga.". App. 101, 94 S. F. 273.
That one has been in the habit of traveling across the
land of another by a route more than fifteen feet wide,
which was not kept in repair, and was not permanent -in
its location, will not suffice. Childers v. Holoway, 69 Ga.
758.
Same — Permanence. — Where it appears that a private way
claimed to exist by prescription, which it is sought to open,
was not permanent, but was obstructed and changed by
petitioner himself, the county commissioners erred in or-
dering it opened. Feathers v. Furr, 62 Ga. 421, 422.
Before an applicant can have obstructions removed from
a private way, he must show that it is in the same fifteen
feet originally appropriated. Collier v. Farr, 81 Ga. 749,
7 S. E. 860.
Where one who had for a period of more than two years
used as a private way a strip of land belonging to an-i
other, then at the request of the owner abandoned this strip
and, with his consent, used in its stead as a private way,
for more than five but less than seven years, another strip
of land belonging to him, no prescriptive right to the use
of either strip as such private way arose in favor of this
person first mentioned. Peters v. Little, 95 Ga. 151, 22
S. F- 44.
To acquire a prescriptive right to a private way over
land, it is necessary to show the uninterrupted use of a
permanent way, not over fifteen feet wide, kept open and
in repair for seven years. It is not sufficient to show that
those claiming the prescription have been accustomed for
more than seven years to pass over the land, changing the
way as they saw fit, to avoid obstructions or for conven
ience. Short v. Walton, 61 Ga. 28, 29.
Same — Repairs. — To acquire a private way by prescrip
tion it is essential that the prescriber keep the way in
repair for the period of prescription. Charleston, etc., R.
Co. v. Fleming, 118 Ga. 699, 45 S. F. 664.
Where a private way was established at the instance
and expense of the defendant, he is not bound ' to keep
the same in repair through his own land for the benefit
of those who may have acquired a prescriptive right to
use the same. Puryear v. Clements, 53 Ga. 232.
Same — Limit of Fifteen Feet Width. — It will not alter the;
case that the average width of the road, considering its
entire length, was not over fifteen feet. Childers v. Holo-
way, 69 Ga. 758.
Where a private way of the general width of fifteen feet,
but with a few wider places, is laid out by the owner of
the land, and the same is used for the statutory period, the
existence of the wider places will not defeat the rights of
the users of the wav. Kirkland v. Pitman, 122 Ga. 256, 50
S. F- 117.
Whilst tine way is confined by the law to a track of
fifteen feet; yet the mere running around one spot until
the road there could be repaired within a few hours, which
was done and it was immediately resumed as the way
again, is not an increase of width as to break the continu-
ance of the use of it. Fveredge v. Alexander, 75 Ga. 858.
Necessity Not Prerequisite. — The constitutional provision
in the first paragraph of the. 3d section of the 1st article of
the constitution, § 5730, which declares that "In cases of ne-
cessity, private ways may be granted upon just compen-
sation being first paid by the appellant," has no application
to a private way acquired by prescription by seven years'
continuous use of the way. Fveredge v. Alexander, 75 Ga.
858.
Right Determined by Use. — Where prescriptive use is the
basis of a private right of way. the character of the use
during the prescribing period determines the right to the
prescriber. Hill v. Miller, 144 Ga. 404, 87 S. F. 385.
Where one has used a private way for more than thirty
years without gates or other obstructions, the erection of
[166]
825
PRIVATE WAYS
§ 825
tes or fences across such way by another would give the
jscriber the right to have such obstructions removed in
: manner provided by law. Hill v. Miller, 144 Ga. 404,
S. E. 385.
tfot Applicable to Wild Lands. — This section can not be
istrued to mean that seven years uninterrupted use of a
y over wild or unimproved land will give title to the way
prescription, without bringing it into plain and irre-
lcilable conflict with § 3641. Watkins v. Country Club,
Ga. 45, 49, 47 S. E. 538.
Improved Lands." — If the railroad was constructed and
: tracks were made to cross the private way by means
a trestle, the land of the railroad company at such point
intersection was "improved land" within the meaning
this section and § 818, and the period of prescription
uld be seven years. Carlton v. Seaboard Air-Line Rail-
y, 143 Ga. 516, 85 S. E- 863.
successors in Title. — Where one has acquired a prescrip-
e right to a private way, whether the prescription be of
amon-law or statutory origin, the right to the way pre-
nably passes with the land to which it is appurtenant,
gent v. Watkins, 124 Ga. 150, 50 S. E- 158.
ilthough not expressly so stated (the case involving
tual use by adjoining owners of a way embracing land
either), it is clearly implied, that this section applies
ere the vendee of the original owner of the dominant
ement continues the user, the two periods making up the
en years. Thompson v. Easley, 87 Ga. 320, 13 S. E.
Thus the user need not necessarily be by one party
: may be continued by his successor in title. This case
:d and construed § 818; but see Editor's note to that
tion.
! tenant in common acquires no prescriptive right by
use of a way over the common property so long as all
the tenants had an undisputed use of the premises. Boyd
Hand, 65 Ga. 468, 469.
Vhere all the tenants in common in a certain lot united
a deed conveying the fee, without any reservation of a
/ate way, one of them who had been accustomed to use
vay over the land could not tack such use pending his
it ownership to his use since the sale to complete his
scriptive right. Boyd v. Hand, 65 Ga. 468, 469.
fo Estoppel of Grantor. — If a grantor, after conveying
d, continued to use a private way, the fact that he had
h conveyance would not prevent him from acquiring un-
the statute a private way by prescription. Carlton v.
board Air-Line Railway, 143 Ga. 516, 85 S. E. 863.
Lnowledge and acquiescence of the owner of the lands is
the very essence of the right-of-way against the owner,
jredge v. Alexander, 75 Ga. 858.
he doctrine that prescriptive titles to the fee in real es-
; by seven years' possession can not originate in con-
t, because the possession there must be adverse all the
e, does not prevail or apply to a right-of-way, under
; section. Everedge v. Alexander, 75 Ga. 858. This case
:d and construed § 818; but see Editor's Note to that
tion. — Ed. Note.
fo Prescription against One Who Establishes Way. — A
e in which the plaintiffs are claiming to use the private
f of the defendant, established for his private use and
efit, and paid for by him is not within the provisions
this section. Puryear v. Clements, 53 Ga. 232, 235.
j 825. (§ 679.) Obstructions, how removed. — In
i event the owner or owners of land over which
:h private way may pass, or any other person,
all obstruct, close up, or otherwise render said
ivate way unfit for use, the party or parties in-
•ed by such obstructions, or other interference,
ty petition the ordinan^ in the country where
:h private way has been in use to remove such
structions, and upon the petition being filed, the
iinary shall issue a rule nisi, directed to the
Sty or parties complained against (which rule
all be served by the sheriff or his deputy), call-
? upon the offending parties to show cause why
d obstructions should not be removed, and the
;e use of said private way be re-established,
id rule shall be served at least three days before
2 day set for the hearing and when the day ar-
res the ordinary shall proceed to hear evidence
to said obstructions or other interference, and
it should appear that said private way has been
continuous, uninterrupted use for seven years or
3re, and no steps taken to prevent the enjoyment
[167]
of the same, then the ordinary shall grant an order
directing the party or parties so obstructing, or
otherwise interfering with said right of way, to re-
move said obstructions or other interference with-
in forty-eight hours, and in the event of failure so
to remove said obstructions, the ordinary shall
issue a warrant directed to the sheriff, command-
ing him forthwith to remove said obstructions.
Act 1872, p. 60.
See §§ 818, 819, 824, 826, and notes thereto. See 9 Cum.
Dig. 611, 10 Enc. Dig. 611. As to jurisdiction of ordinary,
see § 4797.
No Provision for Taking Property. — The statutory pro-
ceeding provided for in this section, contemplates merely
the removal of obstructions from existing private ways, and
has no reference to taking the property of the owner of
the land. Porter v. Foster, 146 Ga. 154, 90 S. E. 967.
No Authority to Close Way. — On a hearing under this
section, the commissioners have no authority to order the
way closed. Allen v. Meyerhardt, 64 Ga. 337.
No Authority to Impose Conditions. — On a hearing under
this section the commissioners have no authority to order
the obstructions removed on the performance of conditions
by the petitioner. Allen v. Meyerhardt, 64 Ga. 337.
Applies to Ways by Prescription. — This section applies
only to ways acquired by prescription. Belcher v. Kelly,
143 Ga. 525, 85 S. E. 696, citing Holloway v. Birdsong, 139
Ga. 316, 77 S. E. 146. See note to § 819, as to applicabil-
ity under that section.
Agent Can Not Proceed under This Section. — Where the
claim of right to a private way is founded upon an unin-
terrupted use of the way for more than seven years by the
owners of a certain plantation, their agents, servants and
tenants, the right is not in the agents or servants themselves,
but in the owners, their agent can not institute and carry
on a proceeding under this section in his own name, either
individually or as an agent. Cunningham v. Elliott, 92 Ga.
159, 18 S. E. 365.
Ordinary Does Not Act as Court. — The removal of ob-
structions from a private way is a matter for the decision
of the ordinary, not the court of ordinary. Fortson v. Mat-
tox, 67 Ga. 282; Little v. McCalla, 20 Ga. App. 324, 93 S.
E- '37.
Remedy in Equity. — This section does not give such a
plain remedy at law as will justify the refusal of an in-
junction to prevent obstruction. Dodson v. Evans, 151
Ga. 435, 107 S. E. 59. See also Phinizy v. Gardner, 159
Ga. 136, 125 S. E- 195. In these cases there was a threatened
continued obstruction (plowing over the way) and the rem-
edy under this section would have certainly been insuffi-
cient. There is probably only an apparent conflict with
the memorandum decision in Childers v. Holloway, 69 Ga.
757, but the first headnote of that case is too broad to be
consistent with the holding in the cases cited above. — Ed.
Note.
Burden of Proof. — The burden is on the plaintiff to show
the constant and uninterrupted use of the way for seven
years or longer, and that it had been kept in repair dur-
ing that time. Goodwin v. Bickers, 22 Ga. App. 13, 14, 95
S. E. 311.
Necessary Allegations. — The petition should show that the
alleged private way from which it was sought to remove
the obstruction complained of was not over fifteen feet in
width, as well as the fact that it had been kept open and
in repair for the period prescribed in the statute. Hollo-
way v. Birdsong, 139 Ga. 316, 317, 77 S.- E. 146.
In an action by one holding the land under a deed from
the prescriber, to require the removal of obstacles erected
in the way, it is not necessary to allege that the way was
laid out by the petitioner, or that the defendant had knowl-
edge that the way was laid out, used, and enjoyed. Nu-
gent v. Watkins, 124 Ga. 150, 50 S. E. 158.'
Where in a petition to have obstructions removed from
an alleged private way, the petitioner based his alleged right
to the relief for which he prayed upon seven years con-
tinuous and uninterrupted use of the way, and failed to
allege that the land over which the way was claimed was
improved land, a demurrer predicated upon such failure
was properly sustained. Watkins v. Countrv Club, 120
Ga. 45, 47 S. E. 538.
Description of Way. — A description of a road which would
not be sufficient in a proceeding to lay out and establish, may
be sufficient to identify an existing way across which an
obstruction had been placed. Kirkland v. Pitman, 122 Ga.
256, 50 S. E. 117. See also Brennan v. Brooks, 131 Ga. 94,
61 S. E. 1035.
In a proceeding to remove an obstruction from a pri-
vate way over the land of another, it is not necessary to
§ 826
STATE HIGHWAY BOARD
§ 828 (e;
describe the way in so far as it extends over the land of
others; it is sufficient if the description of the way through
the land where the obstruction is alleged to have been
placed is accurately denned. Johnson v. Williams, 138 Ga.
853, 76 S. E- 380.
§ 826. (§ 680.) No appeal; certiorari. — There
shall be no appeal from the judgment of said ordi-
nary ,but either party being dissatisfied shall have
the right to sue out a writ of certiorari, said cer-
tiorari to be had as in other cases now provided
by law.
See note to § 25.
As to certiorari in general, see §§ 5180-5205.
Rule of Decision. — On a proceeding to remove obstruc-
tions from a private way, there being sufficient evidence
to sustain the finding of the ordinary that the private way
claimed existed by prescription, the superior court had no
legal right to set aside that judgment on facts, unless
abused, although there may have been conflict in the tes-
timony. Franklin v. Wesley, 73 Ga. 145.
Judgment. — Upon the hearing of the writ of certiorari, if
the rights of the parties depend upon the determination of
disputed facts, the court should not pass final judgment,
but should remand the case for a new trial under this
section. Desvergers v. Kruger, 60 Ga. 100, 101.
§ 827. (§ 681.) Fees of officer.— The fees of the
ordinary in such case shall be three dollars, to be
paid by the losing party. Sheriff's fees the same
as serving declaration or other process of court.
Act 1872, p. 61.
§ 828. (§ 682.) May be converted into public
road. — When a private way is once established,
it is in the power of the ordinary to declare it a
public road, provided it is of sufficient length and
importance, and the number of persons who habit-
ually use it can and will do as much work thereon
as is their proper share, in working the same alone
or in connection with adjacent public road.
ARTICLE 13
State Highway Department. Reorganization.
seq. Ivee County v. Mayor of Smithville, 154 Ga. 550, US
S. E. 107.
§ 828(2). Assent to federal law. — The assent oi
the State of Georgia to the terms and provisions
of the Act of Congress approved July 11th, 1916,
known as the "Act to provide that the United
States shall aid the States in the construction ol
rural post roads, and for other purposes;" is here-
by continued; and the State Highway Depart-
ment herein provided for shall discharge all oi
the duties arising under said Act of Congress tc
be performed b3>- a State Highway Department
and is hereby constituted the proper agency of the
State of Georgia to discharge all duties arising
under any amendment or amendments to said Act
of Congress, or under other Acts of Congress al-
lotting Federal funds to be expended upon the
public roads of this State. Acts 1919, pp. 242, 243
See note to preceding section.
§ 828(3). Membership of department. — The
State Highway Department of Georgia reor-
ganized and reconstituted hereby, shall consist of
the State Highway Board, and such other subordi-
nate employees, including the chief engineer and
other assistants as the Highway Board may deem
necessary to carry out the provisions of this Act.
Acts 1919, p. 242; 1925, p. 208.
As to provision relating to engineer, see §§ 828 (10) et
seq.; state highway board, § 828 (5).
§ 828(4). Suits by or against department. — Said
Highway Department may sue and be sued or
make settlement of all claims presented to it under
oath. Acts 1925, pp. 208, 211.
SECTION l.
Reorganization, Assent to Federal Law and
Membership of Department.
§ 828(1). State Highway Department Reor-
ganized.— The State Highway Department of
Georgia, created and provided for by the Act ap-
proved August 16, 1916, is hereby reorganized and
reconstituted as hereinbefore provided, and said
reorganized State Highway Department of Geor-
gia shall at once succeed, without interruption, to
the duties and powers of the predecessor, not in
conflict with this Act; and shall have full
power and control in the performance and doing
of all the things provided for in this Act. Acts
1919, pp. 242, 243.
Methods of Building Public Highways. — Prior to this act,
by which the State Highway Commission was reorgan-
ized, there were two ways of laying out and building pub-
lic highways in this State. One was the county method,
which is defined in the Civil Code, §§ 640 et seq. The other
was the municipal method, whereby towns and cities were
given in their charters jurisdiction over the laying out,
building, changing, closing, and working streets within their
limits. Lee County v. Smithville, 154 Ga. 550, 555, 115 S.
E. 107.
Act Creates Independent System. — This act creates a
complete system of State-aid roads, and provides the method
for laying out and constructing such roads, under which
said department, in conjunction with the county commis-
sioners, or alone, can locate and build such roads with-
out complying with the terms of the code sections 640 et
SECTION 2
State Highway Board.
§ 828(5). Members of board, and term of of-
fice.— The State Highway Department shall be
managed and controlled by the State Highway
Board, which shall consist of three members, ap
pointed by the Governor of this State, and con
firmed by the Senate, one each from the follow
ing territorial areas of the State, described below
as Division One, Two, and Three, to-wit: Divi
sion One shall be that area of the State lying
south of the parallel of latitude known as thirty-
two degrees and five minutes, north latitude;
Division Two shall be that area of the State lying
between parallels of latitudes known respectively
as latitude thirty-two degrees and five minutes
and thirty-three degrees and thirty minutes, northj
latitude; and Division Three shall be that area of
the State lying north of the parallel of latitude
known as thirty-three degrees and thirty minutes
north latitude. The full term of office of said
members shall be six years, with initial appoint-
ments designated for two, four, and six years,
respectively, so that the term of office of one
member shall expire every two years. Acts 1919,
pp. 242, 244, 1921, pp. 199, 202.
§ 828(6). Chairman of board. — The Governor of
the State shall designate the member of said Board
who shall act as Chairman thereof, and said ap-
pointment shall be confirmed by the Senate. Pro-
vided, further that the term of office of all initial
appointees shall include in addition to that frac-
tional part of the year intervening between the
168
§ 828(7)
STATE-AID ROADS
§ 828(16)
date of appointment and January first of the suc-
ceeding calendar year, from which latter date the
2, 4 and 6 year terms of office shall be reckoned.
Acts 1919, pp. 242, 244; 1921, pp. 199, 202.
As to apportionment of successor of chairman, see §
128 (8).
Appointment — Term of Office. — Upon a proper construe -
ion, this act as amended provides for the office of chair-
nan of the State Highway Board to be filled by appoint -
nent by the Governor, and that the appointees to such
>fnce shall have definite and fixed terms of office. Holder
r. Anderson, 160 Ga. 433, 128 S. E. 181.
The word "term" as employed imports that the Gov-
:rnor shall appoint for a specific term. Holder v. An-
lerson, 160 Ga. 433, 444, 128 S. E. 181.
"If the Governor should appoint a chairman whose mem-
lership on the board should be for a 2-year or 4-year term
>r 6-year term, the term of the chairman would be for the
erm of membership of the member whom the Governor
night appoint as chairman." Holder v. Anderson, 160
la. 433, 444, 128 S. E- 181.
Qualification.— "Though a member of the board need not
lecessarily be chairman, the chairman of the board must
lecessarily be a member of that body." Holder v. Ander-
on, 160 Ga. 433, 444, 128 S. E. 181.
The validity of the appointment as chairman would not
<e impaired if the appointee was already a member of the
>oard. Holder v. Anderson, 160 Ga. 433, 444, 128 S. E- 181.
Appointment of Member and Chairman in Same Order. —
The statutes making no special provision for the form of
n order of appointment, the Governor may in one order
ppoint a person as member and also as chairman of the
card." Holder v. Anderson, 160 Ga. 433, 444, 128 S. E-
81.
Appointment as Chairman Includes Membership. — "An or-
er by the Governor appointing as chairman a person who
ras not already a member of the board will be construed
3 include both membership and chairmanship of the board
without making any special reference to membership, and
lie appointment as chairman will not be invalid merely be-
ause there was no antecedent appointment of the person
s member of the board." Holder v. Anderson, 160 Ga.
33. 444, 128 S. E. 181.
§ 828(7). Tenure, compensation, and vacancies. —
/lembers of the State Highway Board shall hold
iffice until their successors are appointed and*
[ualified; they shall be paid per diem of $10.00
>er day and actual traveling expenses while en-
;aged in the performance of their duties; vacancies
hall be filled as in the case of the original appoint-
nents; and that no member shall hold another of-
ice while serving as such member. Acts 1919, pp.
42, 245.
§ 828(8). Successor of chairman. — When the
Chairmanship is made vacant by death, resigna-
ion or other cause, the successor to that office
hall be designated by the Governor and confirmed
»y the Senate, and shall hold office for a term con-
istent with other provisions of this Act. Acts
919, pp. 242, 245. 1921, pp. 199, 203.
As to initial appointment, see § 828 (6).
§ 828(9). Board of control of highway Depart-
nent. — Said Highway Board shall be the execu-
ive and administrative head of the State Highway
department of Georgia, with full power and au-
hority and in full control of the Highway Depart-
nent and all road work and highway work within
his State as provided for under this Act. Act?
925, pp. 208, 211.
SECTION 3
State Highway Engineer.
§ 828(10). Apportionment; qualifications; ten-
tre; expenses. — The said Board shall employ a
>tate. Highway Engineer, who shall be a compe-
ent civil engineer, qualified by technical training
as well as practical construction experience in
highway work. The engineer shall hold office
during the pleasure of the Board. He shall be al-
lowed his necessary traveling expenses incurred in
the performance of his duties while traveling in
the State of Georgia without the County of Ful-
ton, and without the State of Georgia, provided
that before incurring any traveling expenses for
trips outside the State of Georgia, he shall have
the written direction of the Highway Board to in-
cur such expense, which written direction shall
be recorded on the minutes of said Board before-
incurring such expense. Acts, 1925, pp. 208, 210.
As to members of department, see § 828 (3).
§ 828(11). Duties; officers and equipment. — Said
Board shall prescribe and fix the duties of the
engineer, and shall provide the engineer with of-
fices and sufficient equipment to discharge his
duties as prescribed by the State Highway Board
and this Act. Acts 1925, pp. 208, 211.
§ 828(12). Other engineers, clerks, and assist-
ants.— The Board shall employ such other engi-
neers, clerks, and assistants as may be needed, and
at such salaries and for such terms as ma}' appear
necessary, and prescribe and fix their duties. Acts
1925, pp. 208, 211.
• SECTION 4
State-Aid Roads.
§ 828(13). System of State-Aid Roads Created
Bridges, etc., included. — There is hereby created a
system of State-Aid Roads in this State for the
purpose of inter-connecting the several county
seats of the State, which shall be designated, con-
strued, improved, and maintained by the State
under the State Highway Department, and the
provisions of law; and the term State-Aid Roads
shall include the State or interstate bridges and
other subsidiary structures necessary or desirable
in the construction of said roads. Acts 1919, pp.
242, 247.
§ 828(14). State-Aid Road Fund.— There is here-
by created a State-Aid Road Fund, to be con-
trolled and expended by the State Highway Board
as herein provided for, and said fund shall consist
of such moneys as are provided for herein, and as
may from time to time be appropriated, or pro-
vided for road or highway work by the State of
Georgia, or from other sources. Acts 1919, pp.
242, 247.
§ 828(15). Fees from motor-vehicle licenses. —
All funds realized from motor vehicle licenses or
fees under present or future laws, less the expense
of collecting the same as provided by law, shall be
deposited with the Treasurer of this State, to the
credit of and as a part of the State-Aid Road Fund
hereinbefore created, and said funds shall be con-
trolled and disbursed under the provisions of this
Act. . 1919, pp. 242, 247.
Editor's Note. — The section supersedes in part the law
herein codified as § 1770 (43 JA)- Reference should be had
to the editor's note under that section for a full explanation.
A reference to such note should also be had to determine
the manner of paying the expense of enforcing the motor
vehicle law.
§ 828(16). Disbursements. — The disbursements
of the State-Aid Road Fund shall be made upon
warrants drawn by the Governor upon bills of
[ 169
§ 828(17)
POWERS AND DUTIES OF HIGHWAY DEPARTMENT
§ 828(19)
particulars and vouchers approved and submitted
by the State Highway Department or its duly au-
thorized representative. Acts 1919, pp. 242, 247.
SECTION 5
Bridges.
§ 828(17). Maximum capacity. — The State High-
way Department is authorized to ascertain and de-
termine the maximum load or weight that can,
with safety, be transported over any bridge and its
approaches on the State-aid road. The county
authorities in each county of this State shall have
similar power with respect to any bridge and its
approaches within such county not State-Aid
Roads. The State Highway Department and the
county authorities respectively shall be authorized
to post on any such bridge a legible notice show-
ing the maxium amount which has been so ascer-
tained such bridge or its approaches can carry
with safety, and any person hauling, driving or
otherwise bringing on any such bridge or its ap-
proaches any load or weight exceeding the
rated capacity so ascertained and posted, shall do
so at their own risk, and neither the State nor
county shall be liable for any damages to persons
or property that may result therefrom. And it
shall be unlawful for any person to haul, drive or
otherwise bring on such bridge or its approaches,
any load or weight exceeding the rated capacity
so ascertained and posted. Acts 1922, pp. 116, 117.
SECTION 6
Powers and Duties of Highway Department.
§ 828(18). Control of road work, etc. — The pow-
ers and duties of the State Highway Department,
to be exercised by the State Highway Board, the
State Highway Engineer, and the staff thereof,
shall be as follows: To have charge and control
of all road or highway work designated or pro-
vided for, or done by the State or upon the State-
Aid Roads; to designate, improve, supervise, con-
struct and maintain a system of State-Aid Roads,
provided that no road shall become a part of said
system until the same shall be so designated by
the State Highway Board by written notice to the
county road authorities concerned; to have the
control, charge, supervision, and expenditures of
all funds now or hereafter appropriated or pro-
vided for highway or road work by the State, or
which may be a part of the State- Aid Road Fund;
to have power to provide for surveys, maps, speci-
fications, and other things necessary in designat-
ing, supervising, locating, improving, constructing
or maintaining said State-Aid Roads, or such other
public roads as may be provided under this Act;
to secure consulting advisors in important techni-
cal matters, including the qualifications of techni-
cal employees; to employ clerical assistance and
incur other expenses, including necessary equip-
ment and office rent; to pay the compensation and
expenses of all officials and employees of the State
Highway Department; and to provide for such
other expenses as may come under, or be in har-
mony with, the provisions of this Act. Acts 1919,
pp. 242, 247.
§ 828(19). Appointment of board. County-seat
roads. Additional main traffic roads. Limit of total
mileage. Relocation. Report of engineer. Maps.
County expenditure. Damages. Defense to suits.
Adjustment of claims. — Immediately after the pas-
sage of this Act, the Governor shall appoint the
State Highway Board, who shall at once proceed
to designate the system of inter-connecting county
seat public roads to be known as State-Aid Roads,
as comprised under the following provisions:
Provision 1. Two county seat roads starting
from the county seat, shall be so designated in
each county; said roads to traverse the county to
the county line, and to connect with the desig-
nated State-Aid Roads of any adjoining county or
counties.
Provision 2. Additional main traffic roads may
be designated which are necessary to complete the
inter-connecting system set forth in Provision 1,
where unusual topographic conditions are met
with, or to serve important market points where
the county seat to county seat routes involve sub-
stantial loss of distances; provided no such roads
shall be built until the roads provided for in pre-
ceding paragraphs have been completed.
Provision 3. In designating and locating the
entire system of State-Aid Roads, the effort shall
be made to serve as large a territory and as many
market points as practicable with the said system,
due consideration being given to topographic and
construction difficulties, and to secure main trunk
line routes through the State; provided .that the
total mileage to be designated as State-Aid Roads
shall not exceed (6,300) six thousand three hun-
dred miles. Provided, That the said State High-
way Department shall take over the State-Aid
Roads as above mentioned on or before January
1, 1922, and provided further that when the va-
rious counties have complied with the law with
reference to right-of-way, and provided further
that the said Highway Department in taking over
said roads is not bound to the right of way of the
road beds as located on January 1, 1922, but shall
have the right to re-survey and re-locate said road
bed and right of way and it shall be the duty of
the county or counties in which re-surveys and
re-locations are made to furnish the right-of-way
or the re-location and re-survey free of charge to
the said Highway Department. Provided, That in
re-locating in road or right-of-way the State
Highway Department shall confer with the Ordi-
nary or County Commissioners as the case may be,
and give due consideration to their wishes, but in
case of disagreement, the judgment of the State
Highway Board shall prevail.
Provision 4. The State Highway Engineer
shall prepare a report or reports, accompanied by
maps, setting forth the general routes between
county seats of roads recommended for designa-
tion as State-Aid Roads for approval by the State
Highway Board, when duly approved by said
Board, the said maps shall be filed with the Secre-
tary of State as the authoritive record of such des-
ignated State-Aid Roads, and copies shall be
furnished to the counties concerned.
Provision 5. When any portion of the des-
ignated State-Aid Road System is taken under
the jurisdiction of the State Highway Department
by written notice as prescribed in Section 828.(18),
the county or counties in which said portion is lo-
[170]
§ 828(20)
POWERS AND DUTIES OF HIGHWAY DEPARTMENT
§ 828(26)
:ated shall not thereafter be required to levy taxes
:or the construction or maintenance of said por-
tion, or to use any of its funds or road forces in
he construction or maintenance thereof, provided
:hat the State Highway Department shall defend
ill suits and be responsible for all damages
iwarded against any county under existing laws,
ind whenever the cause of action originates on
lighways jurisdiction over which shall have been
issumed by said Highway Department under the
:erms of this Act, and provided that any county
sued shall voucher said Highway Department to
iefend such litigation, by furnishing said Highway
Department with a notice to defend such suit, to
vhich said notice shall be attached a copy of the
leclaration served on said county, and provided
:hat said notice shall be given said State Highway
Department at least ten days prior to the return
lay on which said suit must be answered, and
>rovided further that said State Highway Depart-
nent shall have the right and authority to adjust
md settle in the name of such county and on its
>wn behalf any claim for damages for which said
Slate Highway Department may be intimately
iable under the terms of the preceding proviso.
Provided said State Highway Board is authorized
o construct and maintain State-Aid Roads in and
hrough towns and cities of not more than
wenty-five hundred people. Acts 1919, pp. 242,
!48; 1921, p. 199; 1922, pp. 176, 177; 1925 p. 207.
As to duty of county to furnish right of way, see § 828 (27).
\.s to power of eminent domain where county fails to fur-
iish right of way, see § 828 (33). As to reimbursement for
unds expended by county on such roads, see §§ 828 (28), (31).
Limitation upon County Not City. — This provision is a
imitation upon the power of counties to levy taxes for
he construction and maintenance of State-aid highways,
md is not a limitation upon the power of the city to pro-
vide for the pavement of its streets under the arrange -
nent made between the city and the county in this case.
?aver v. Mayor, etc., 159 Ga. 568, 126 S. 15- 461. See notes
inder §§ 828 (28), (31).
§ 828(20). Paving. — It shall be the duty of the
State Highway Board to institute and carr)^ out
ifficient and equitable plans for maintenance, for
mprovement, and for the construction of durable
)aving on the designated State-Aid Roads, where-
>y the entire system shall, as rapidly as possible
vith the funds made available, be prepared for,
md receive such type of pavement, known to be
lurable under heavy traffic, as the State Highway
Department shall specify. Acts 1919, pp. 242, 250.
§ 828(21). Road districts. Division of road fund.
Simultaneous construction. — The division and al-
otment of the State-Aid Road Fund, or other
ivailable funds, shall be annually divided between
:he twelve Congressional districts as now created,
md which shall constitute the road districts, ac-
:ording to the designated mileage of each road
district as. compared to the total mileage of the des-
ignated roads in the whole State, and construc-
tion work shall be begun and carried on simul-
taneously in each and every one of said road dis-
tricts with the funds annually apportioned thereto.
Axts 1919, pp. 242, 250.
For a section dealing with same subject matter, see §
528 (28) and editor's note.
Editor's Note. — This section in part repeals and super-
sedes the provisions of § 1770 (43^4). Reference should be
dad to the editor's note under that section for a full ex-
planation.
§ 828(22). Labor, contracts for construction, etc.
Condemnation of right of way. — The State High-
[1
way Board shall have authority to plan and to
construct, improve and maintain said State-Aid
Roads in any manner they may deem expedient,
by free labor, by contracts, or by any other
method or combination of methods, in their dis-
cretion. In so doing said Highway Board is here-
by authorized and empowered to condemn and ac-
quire a right of way not exceeding 100 feet in
width for maintaining, improving and construct-
ing said State-Aid Roads. Acts 1919, pp. 242, 250.
For provision requiring county to furnish right of way,
see § 828 (27).
§ 828(23). Convict labor.— The Highway De-
partment of Georgia is hereby authorized to con-
struct any portion of the State-Aid Road system
by the employment of convict labor thereon. Acts
1924, p. 119.
§ 828(24). Allotment of convicts by prison com-
mission.— The said Highway Board is authorized
to apply to the Prison Commission of Georgia for
the quota of convicts that any county may be en-
titled to, which is not working its convicts on its
public roads, the said convicts to be worked as far
as possible in the Senatorial District in which the
county is located for whose convicts request may
be made by the State Highway Board, and it shall
be the duty of the Prison Commissioner to allot
said convicts to the Highway Department for the
purpose of construing said public roads and to ap-
point such wardens, physicians and guards as may
be necessarjr to carry out this purpose. Acts 1924
p. 119.
§ 828(25). Contracts of counties with Highway
Board, for use of convicts. — Any one or more
counties may contract with the Highway Board to
use their quota of convicts to which such counties
may be entitled in the construction of any portion
of the State-Aid road system, and the State High-
way Board is hereby authorized to purchase such
machinery and equipment as may be necessary for
the purpose of equipping such road gangs as they
may organize, and to pay the salaries of the war-
dens, physicians and guards as may be necessary
to carry into effect the provisions of this Act.
Acts 1924 p. 119.
§ 828(26). Purchase of gravel pits, quarries,
factories, etc. — The State Highway Board, may use
any of its funds for acquiring or establishing gra-
vel pits, stone quarries, cement factories, and such
other factory or thing as may be necessary in the
economic production of any portion of material
required in maintaining, improving and construct-
ing the system of State-aid roads, herein provided
for; provided, however, and nevertheless that
neither said State Highway Board, nor any of its
officers or employees, shall purchase any ma-
terials, machinery or supplies, except from the
lowest and best bidder, under sealed proposals or
bids, after public advertisement of the kind,
quality and quantity of materials, machinery and
supplies desired. The State Highway Board shall
have authority to reject any and all bids received
at any particular letting and in that event shall
similarly readvertise for other bids on the mate-
rials, machinery or supplies desired, proceeding
similarly with each successive advertisement as on
the first one had, so that at all times the interest
of the State and the public welfare shall be fully
§ 828(27)
CONSTRUCTION OF ROADS BY COUNTY
§ 828(31)
protected and safeguarded. Said advertisements
shall appear in the newspaper wherein the sheriff's
advertisements appear in the locality in which the
work is to be done, or the machinery and supplies
are needed, for at least once a week for two
weeks; provided, however, the said State High-
way Board, through its proper officer or officers,
shall be permitted to do such additional advertis-
ing in order to obtain the lowest and best bids as
in its judgment may seem best and proper, and
provided, also, that should the said State Highway
Board desire and undertake to contract for or
purchase a year's supply of equipment or mater-
ials for general use throughout the State at one
letting, the advertisement for bids shall be pub-
lished once a week for four weeks and in
one newspaper of general circulation published
in each Congressional District in the State, and
provided, further, this requirement shall not apply
to the purchase of ordinary office supplies, minor
equipment and materials for emergency or repair
work. Acts 1919, pp. 242, 250; 1922, pp. 118, 120.
For provision giving department right to condemn right
of way, see § 828 (22).
§ 828(27). Rights of way, counties to give. —
The respective county road authorities shall fur-
nish, free, to the State Highway Board all neces-
sary rights of way for the designated roads in each
county, constituting any portion of the system of
State-Aid Roads. Acts 1919, pp. 242, 251.
As to power of department to condemn right of way, see
§ 828 (22). As to right of eminent domain where county
fails to furnish right of way under this section, see §
828 (22).
§ 828(28). Construction funds — Budget sheet —
Fiscal year — Federal appropriations — Emergency
fund. — Until the construction of the said de-
signated system of State-Aid Roads is completed
all available funds from whatever source compos-
ing the State-Aid Road fund shall be used for the
construction of and maintenance of said State-Aid
Roads and be apportioned to the several counties
on the basis of the road mileage as shown by the
State system, and under the direction and super-
vision of the State Highway Department, and for
the support of the said State Highway Depart-
ment, or in lieu thereof, to refund to, or to reim-
burse counties which have actually constructed a
similar road under the specifications and supervi-
sion of the State Highway Department as a part
of said designated State-Aid Road system. Pro-
vided, that the sum to be used for the support of
the said Department shall be fixed annually in ad-
vance upon a budget sheet submitted by the State
Highway Board and approved by the Governor of
the State for the fiscal year, beginning on the first
day of July, 1921, and for all succeeding fiscal
years beginning on the first day of July in each
calendar year thereafter. Provided further that
said sum shall not exceed six per cent of the gross
expenditures of all funds handled by and expended
by and under the direction of said State Highway
Department from all sources.
Provided that nothing herein shall prevent the
State Highway Department from using any of its
funds to meet the necessary requirements of the
Federal Laws appropriating money for the pur-
pose of constructing highways in Georgia.
Nothing in this provision or in any other provi-
sion of this law shall be construed to mean that
[1
the county cannot appropriate and spend any
funds they desire on building and maintaining any
of the State-Aid Roads. Before the amounts to
be distributed are apportioned as provided in this
section, the State Highway Board is authorized to
set aside the sum of $50,000 to be used in emer-
gencies only. Provided that if such funds are not
expended on such emergency work by December
first of any year, said funds shall revert to the
general fund and be apportioned among all the
counties of the State, as hereinbefore provided.
Acts 1919 pp. 242, 251; 1921, p. 199.
As to necessity of county levying taxes to build or main-
tain road after State takes control, see § 828 (19) ; power
to expend funds upon, see § 828 (19).
Editor's Note — It is to be noticed that this section and
§ 828 (21) pertain to the same subject. This section is
taken from the amendatory act of 1921 repealing the cor-
responding section of the Act of 1919. As to whether it
supersedes the provisions of § 828 (21) [taken from the
Acts of 1919] quaere. Especial attention is called to the
provisions of § 828 (21) requiring simultaneous construc-
tion of roads in each district. As to effect of amendment
upon that section concerning the reimbursement of coun-
ties, see editor's note under § 282 (31).
Amendment Not Retrospective. — The 1921 amendment of
this act whether it took away the county right to reim-
bursement provided for in § 828 (31) or not, can not affect
an election for bonds and the proceedings for validation
had prior to the amendment. Moody v. Comm, 29 Ga.
App. 22, 113 S. F. 103.
Reimbursement of Cities. — The fact that under this sec-
tion, provision is made for reimbursing counties for money
expended in the construction of State-aid roads, and the
further fact that the State Highway Department has is-
sued certificates to the county for the full cost of paving
streets of a city which form part of system, does not pre-
vent the enforcement of an assessment against abutting
property owners to pay their proportion of such cost, it
not being alleged and shown that the county had been paid
for the cost of such improvements. Faver v. Mayor, etc.,
159 Ga. 568, 126 S. F- 461.
Validity of Contract for Paving City Streets by County.
— See note under § 828 (31).
§ 828(29). Report to governor. — The State
Highwa}r Board shall annually submit to the
Governor, thirty days prior to the meeting of the
General Assembly, a complete annual report of
operations, activities, and also the plans to the
State Highway Department for the ensuing year,
together with a budget sheet to cover the next
fiscal year, and with recommendations bearing up-
on the work with which the said Department is
charged. Acts 1919, pp. 242, 251.
§ 828(30). County agreements. — The counties
and State Highway Board shall have the right to
enter into agreements for the purpose of using the
funds of such county or counties to construct
some portion of the State Highway where the
funds for the one county are not sufficient, pro-
vided, however, that it must be a mutual agree-
ment between the county or counties and the
State Highway Board entered into in writing and
spread upon the minutes of the proper authorities
of the County or Counties and upon the minutes
of the State Highway Board. Acts 1921, pp. 199,
200.
SECTION 7
Construction of Roads by County.
§ 828(31). Reimbursement of counties for ex-
penditures.— Each and every count}' within the
said State, which have heretofore built or which
shall hereafter build any portion of the roads with
72 1
§ 838(32)
ORGANIZATION OF NEW COUNTIES
§ 832
such counties designted by said Board as a por-
tion of said system of State-Aid Roads, with funds
secured from the issuance of county bonds, or
otherwise, under approved plans, specifications
and supervision of the State Highway Depart-
ment, shall be reimbursed in whole for the cost of
said roads; provided that before any portion of said
State-Aid Road System shall be constructed by
any county, projects therefor shall be approved in
advance by said State Highway Board by formal
action entered upon the minutes, specifically set-
ting forth the agreements; and, provided further,
that thereafter said roads as so construed shall
constitute a part of the system of State-Aid Roads
and be maintained by said Highway Board as
herein provided for and also provided, that no
county so constructing any portion of said system
of State-Aid Roads shall be repaid any portion of
the cost thereof until after the entire system of
interconnecting county seat to county seat high-
ways shall be completed. Acts 1919, pp. 242, 252.
As to necessity of county levying taxes to build or main-
tain after state takes control, see § 828 (19); power to
expend funds upon, see § 828 (28).
Editor's Note. — As to whether or not the effect of the
1921 amendment of this act [see § 828 (28)] was to take
away county rights given by this section to reimburse-
ment for funds expended upon their roads under the issu-
ance of county bonds, quaere. (See the case of Moody v.
Comm., 29 Ga. App. 22, 113 S. E- 103.)
A city which has power to pave its streets may enter
into a tripartite contract with county and state highway
department to pave its streets, which constitute part of
state highway system with funds obtained from levy on
adjoining property and Federal aid. The fact that the county
made ultra vires contract for the doing of such work does
not affect this contract. Cause of action arose under law
of 1919. Mayor v. Favor, 155 Ga. 683, 117 S. E- 653. See
Lee v. Smithville, 154 Ga. 550, 115 S. E. 107.
§ 828(32). Information from county authorities.
Surveys, plans, etc. — It shall be the duty of the
county road authorities of this State to submit to
the State Highway Engineer full information, on
a form prescribed by him, any proposed highway
construction involving an amount of $2,000 or
more per mile, and any proposed construction of
a bridge of a clear span of ten feet or more. Upon
the receipt of such information it shall be the duty
of the State Highway Engineer to take such steps
as he may deem necessary to provide surveys,
plans, specifications, estimates, and supervision
for the proposed work. All such surveys, plans,
specifications, estimates, shall be done under the
direction or subject to the approval of the State
Highway Engineer, and the Board, and without
costs to the county. Acts 1919, pp. 242, 252.
§ 828(33). Power to sue and to condemn rights
of way. — The State Highway Board, acting for
and in behalf of the State, is hereby authorized
and empowered to sue and be sued, as hereinbe-
fore provided, and not otherwise, to exercise the
right of eminent domain in the condemnation of
rights of way and property thereon for the use of
the system of State Highways, where the county
fails to furnish such right of way, and nothing
herein contained shall interfere with the lawful
right of counties to condemn for road purposes,
even though such condemnation shall be for the
establishment of a portion of the system of State-
Aid Roads. Acts 1919, pp. 242, 252.
As to duty of county to furnish right of way, see §
828 (27). As to right of department to condemn right of
way, see § 828 (22).
[1
CHAPTER 13
Organization of New Counties
§ 829. Jurisdiction of courts in new counties. —
Where a new county is organized, the jurisdiction
of all suits pending in the county or counties from
which the new county has been laid off, of which,
under the Constitution of laws, the new county
shall have cognizance, is transferred immediately
to the corresponding courts in the new county,
and the jurisdiction of suits then pending in the
county or city courts of the old counties is con-
ferred upon the superior court of the new county,
together with all the court papers pertaining there-
to, to which there shall be attached the certificate
of the clerk of the court from whose office they
came that they are the proper papers of the suit,
and the amount of cost accrued therein, and the
amount then due. Acts 1905, p. 46.
Editor's Note.— By the Acts of 1914, p. 48, this entire chap-
ter is made applicable to all new counties established by
constitutional amendment both before and after the passage
of the act. This act is codified as § 848 (1).
Change of Residence by Defendant. — Where, after a de-
fendant is served and suit is pending against him, he moves-
from one part of the county to another, and the territory
embracing his changed residence is subsequently formed into
a new county, such defendant is not entitled, by virtue of
this section, to have the case removed to the new county
for trial. Weatherly v. Cotter, 142 Ga. 457, 83 S. E- 104.
When an action of trover was begun, and subsequently
a new county was formed of territory in which defendant had
resided, but did so no longer, the suit was not transfera-
ble under this section. Subers v. Hirschensohn, 33 Ga.
App. 752, 127 S. E. 825.
Attachment Proceedings. — This section does not deprive a
county of jurisdiction over attachment proceedings, where,
after declaration and answer filed, the territory in which
the property lies is made a new county. Carroll v. Groo-
ver, 27 Ga. App. 747, 110 S. E. 30.
Transmission of Record. — Where pending a motion for new
trial a new county was formed including the territory in
which the action was pending, the clerk of the superioi*
court of the new county properly sent up a transcript of
the record to the appellate court. Atlantic, etc., R. Co. v.
Johnson, 127 Ga. 392, 56 S. E- 482.
§ 830. Costs — Collection and paying over. — On
the final disposition of the transferred cases, it is
the duty of the clerk of the court, or, in case of
no clerk, of the presiding justice, to collect the
costs due the officers of court in the county from
which the case was transferred, and to account to
such officer for all such costs collected by them:
and in event of their failure to account for costs
collected by them for the officers of the courts
from which the cases were transferred, they are
liable to attachment for contempt.
§ 831. Processes transmitted. — All processes
(mesne or final) or paper requiring some official
act to be done by an officer of the county from
which the new county is taken, and which can not
be done by reason of the creation of the new
county, must, without delay, be transmitted by the
said officer to the corresponding officer in the new
county, and if proceedings have been had thereon,
and not finally disposed of, the officer of the new
county must proceed as though the paper had been
originally in his hand; but publication of the
times and places of sale, and proceedings of like
character shall be in the manner prescribed by
law.
§ 832. Officers continue in commission. — County
officers in commission within the limits of the new
county shall hold their commissions and exercise
the duties of their office within the territorial
73 ]
§ 833
ORGANIZATION OF NEW COUNTIES
§ 840
limits of the county or counties from which the
new county is taken until their commissions ex-
pire and their successors are elected and qualified;
and where the creation of a new county is au-
thorized by law, the officers in the county or coun-
ties from which the territory of the hew county is
taken shall continue to exercise the powers of
their office within said territory until the officers
provided for the new county shall be elected and
qualified, and justices of the peace and constables
where districts are not distributed by the lines of
the new county shall retain their offices and their
districts until their commissions expire.
§ 833. Jury commissioners, duty of. — Immedi-
ately after the election and qualification of the of-
ficers of the new county, it shall be the duty of
the judge of the superior court to appoint
commissioners as required by law, and the jury
commissioners after having been notified by the
judge shall meet at the place designated in the
law -as the county-site of the county, and shall be
provided by the ordinary of said county with a
place within the limits of the town so designated
as the county-site and shall proceed immediately
to make a grand and traverse jury box from the
qualified jurors of the county, as now provided by
law, and draw therefrom, pursuant to law,
penals of grand and traverse jurors for the
succeeding term of the superior court of said
county.
§ 834. Tax for county purposes, how levied. —
The ordinary of the new county may levy for the
first year after his qualification an extra tax for
county purposes of such per cent, upon the State
tax as may be necessary, according to his discre-
tion, and he may for the first year after his quali-
fication make a temporary loan or loans for the
purpose of supplying revenue for the new county,
in the absence of any revenue from taxes for the
first year; but he is required in the first levy of
taxes for said new county to cause a specific sum
to be levied upon the property within the territory
of the new county to pay the temporary loan or
debt at the end of the first year.
§ 835. Qualification of officers. — The Governor
may direct the dedimus potestatem for the quali-
fication of the ordinary of said county to the judge
of the superior court of the circuit to which the
new county is attached, or to the judge of any
other superior court or city court or county court,
and the dedimus potestatem for all the other
county officers may be directed to the ordinary
after his qualification and commission, or the
Governor may, in his discretion, direct the dedi-
mus potestatem for the qualification of all of said
officers to any of the judges provided for in this
section.
§ 836. Trustees, returns of. — Trustees, execu-
tors, administrators, or guardians making returns
to the ordinary of the old county, and residing
within the limits of the new county when organ-
ized, may make their returns to, and perform all
their official acts with, the ordinary thereof, and
when any such act is done, the jurisdiction is
changed to the new county, and such trustee, ex-
ecutor, etc., shall file with the ordinary of the
new county, to be recorded by him, a certified
copy of all his acts from the ordinary of the old
county.
Under this section a guardian has an option to change the
jurisdiction over him as guardian to the court of ordinary
of the new county; but if he does not exercise it, the ju-
risdiction remains as it was. Malov v. Maloy, 131 Ga. 579,
62 S. E). 991.
§ 837. Representation in the legislature. — There
shall be no representation in either branch of the
General Assembly from any new county until af-
ter the next regular election of members for the
same, but the senators and representatives, al-
ready elected from the counties forming the new
count}-, shall serve out the term for which they
were elected, without regard to their residence in
or out of the old counties, and all vacancies by
death, resignation, or removal shall be filled by
the county where the member resided at the time
of his election.
§ 838. Election of officers and terms of office. —
The commissions of all officers elected in the new
county shall onh^ extend to the next regular elec-
tion of county officers, and the terms of all officers
elected in the territory of such new counties shall
expire at the time now fixed by law for the expira-
tion of the terms of such county officers; and the
successors of the county officers so elected at the
time of the organization of the new county shall
be elected at the next general election of county
officers.
§ 839. Taxpayers in new counties. — All taxes
due the State and county by persons residing in
the new county, or upon property included within
the limits of the new county at the time of the
creation of the new county, shall be payable to
the tax-collector of the county from which said
territory was taken, and the tax-collector of the
original county is authorized to issue execution
for the collection of such taxes, and it shall be en-
forced and collected by the officers of the county
or counties from which the territory for the new
county was taken.
Levy. — Under this section where an execution is issued
by the tax collector of the original county, for taxes due in
that county by one residing in the new county, it may be
levied by the sheriff of the original county on land of the
defendant, situated in the new county. Stafford v. McDon-
ald, 154 Ga. 637, 115 S. E. 72.
New County Has No Right of Action. — A new county has
no right to recover the old county funds raised by taxes
assessed against the property or citizens of the new county.
Tift County v. Berrien County, 131 Ga. 257, 62 S. E. 204.
Tax Assessed after New County Created. — Property own-
ers in a new county are not liable for a tax levied after the
passage of the creating act for the purpose of building
bridges contracted for after the passage of the act. Yow
v. Sullivan, 129 Ga. 187, 58 S. E. 662. See also Pope v.
Matthews, 125 Ga. 341, 54 S. E. 152.
§ 840. Jufors in new counties. — In case any per-
son residing within the limits of the new county
has been, previously to the time of the election of
officers for the new county, drawn as a juror to
serve in any of the courts at a term of the court
which does not convene until after the election of
such officers, he shall not be competent to serve
as juror in such courts, but it shall be the duty of
the presiding judge to supply his place with a tales
juror; but all persons who reside within the ter-
ritorial limits of any new county shall be liable to
serve as jurors in the courts of the county from
which the territory was taken .after the passage of
the Act organizing the new countv until the same
[174]
§ 841
FIRE PROTECTION
§ 848(2)
shall, in fact, be organized by the commission of
the county officers, as herein provided.
§ 841. Act, when effective. — Whenever an Act
is passed by the General Assembly creating a new
county it shall take effect after the election and
commissioning of the officers of the new county
as herein provided for.
See § 848 (1).
§ 842. Militia districts, justices, and constables.
— The ordinary of the new county shall cause the
territory within the new county to be laid off in
militia districts, as now provided by law, and to
hold an election in each of the districts for a jus-
tice of the peace and two constables, as provided
in section 353 of this Code, unless there shall be
within the limits of any district so laid out either
of said officers, who are authorized to continue to
discharge their duties until their commission ex-
pires; provided, however, that if there shall be
more than one of such officers in the new districts,
their commissioners are hereby declared to be
void; and it shall be the duty of the grand jury of
the county, at the first meeting after the formation
of the militia districts, to elect some person to dis-
charge the duties of notary public ex officio jus-
tice of the peace within the limits of said districts.
§ 843. Roads, districts and commissioiners. —
Immediately after the qualification of the ordin-
ary the territory within the limits of the new
county shall be caused to be laid out in road dis-
tricts, as required by law, and he shall appoint
three commissioners for each road district; and
only the road laws now in force under the general
law for working roads shall be in force in the new
county, as provided in sections 591-637, inclusive.
§ 844. Local laws in new counties. — All local
laws and general laws having local application, in
force within territory included within the limits
of a new county, are to be in full force and effect
within such territory; provided, that where by the
general laws provision is made for any of said
laws going into effect in any county by an elec-
tion to be held, that an election may be held in
the new county at any time after its creation, for
the purpose of putting the local laws into effect,
notwithstanding the provision of any general law
requiring the lapse of any specified time after the
last election on the subject.
Local School Tax. — If this section were construed as mean-
ing that officers of a new county might levy a local school
tax because its territory had been taken from another county
where the tax had been authorized by election, the sec-
tion would be unconstitutional. See § 6579. It will not
be so construed. Fordham v. Sikes, 141 Ga. 469, 81 S. E.
208.
Applied to alternative road law, Parker v. Smiley, 153
Ga. 786, 113 S. E. 150. To prohibition law, Moore v. State,
126 Ga. 414, 55 S. E. 327.
§ 845. County officers, election of. — The election
of county officers for the new county shall be held
at the time designated in the law creating the new
county, and at the time fixed b}r law for holding
such election, and the election managers who are
now required by law to meet at the county-site to
consolidate the vote for said county officers shall
meet at the site designated in the law as the
county-site of the county, and at such place, with-
in the limits^ of such place so designated as the
county-site, as shall be fixed by the judge of the
superior court of the circuit to which the new
[1
county is attached; and in the event of the ab-
sence of the judge, or of a vacancy in his office,
or a failure on his part to act, such place shall be
fixed by the Governor.
§ 846. Registration of voters. — The tax-collec-
tors in each county from which the territory for
the new county is taken shall open the books for
the registration of voters living within said terri-
tory, as now prescribed by law, and they shall
furnish to the registrars of each of said counties a
list of the voters so registered by them in said
territories, and said registrars shall meet in each
of said counties fifteen days 'before the election is
ordered, and comply with all the provisions of the
law on the subject of the registration of voters, so
far as the voters living within the territory com-
posing the new county are concerned; and the
registrars of each county shall furnish to the elec-
tion managers a list of the registered voters living
in that portion of the territory which has been
attached to the new county.
§ 847. Boards of education. — The grand jury in
each new county shall at the first session elect a
count}- board of education, as provided by law,
which shall immediately organize. It shall have all
the powers and rights that are given by law to the
county board of education in existing counties.
Until the organization of the county board of
education, the schools in such new county shall
remain under the control of the boards of educa-
tion of the counties from which the territory to
form the new county was taken, but immediately
upon the organization of the county board of
education in the new county, such control shall
cease and pass to the board of education of the
new county, which shall be entitled to manage and
control the schools within the new county as now
provided by law.
§ 848. Expenses of registration and election. —
All expenses incurred in providing the list of
registered voters, and in holding the election for
count}^ officers of such new county shall be borne
by it.
§ 848(1). Provisions applicable to new coun-
ties created by constitutional amendments. —
Sections 829-848, both inclusive, of the Civil Code,
Chapter 13, Title 6, of the Code, and particularly
the provisions of Paragraph 841, of the Code, shall
also apply to the new counties heretofore created
by constitutional amendments and to those which
are, or may be, subsequently created by constitu-
tional amendments. Acts 1914, p. 48.
CHAPTER 13A.
Fire Protection.
§ 848(2). Fire equipment; authorities in charge.
— Counties of this State having a population of
one hundred and fifty thousand or more, accord-
ing to the United States Census of 1910 or any
future United States Census or official Census of
the State of Georgia, be and they are hereby
authorized and empowered to purchase or lease
land or buildings, equipment and supplies and to
75]
§ 848(3)
COUNTY POLICE, ELECTION AND MAINTENANCE
§ 855(7)
employ persons for the purpose of maintaining a
fire station and fire apparatus for the protection of
the citizens and property of such county. The
determination of all questions with reference
thereto, as well as the equipment and maintenance
thereof, shall be under the supervision of the
Ordinary, Board of Commissioners or other
authorities having charge of the fiscal and ad-
ministrative affiairs of said county. Acts 1922, p.
108.
§ 848(3). Tax. — -Said counties are hereby au-
thorized to levy a tax additional to those now
authorized by law for the purpose of carrying out
the provisions of this Act. Acts 1922, p. 108.
CHAPTER 13B.
Restricted Residence Districts.
§ 848(4). In counties of 200,000 or more popu-
lation; districts outside city limits. — The Commis-
sioners of Road and Revenues, or if there be no
such, the Ordinary or other governing authority
in all counties of the State of Georgia of not less
than two hundred thousand inhabitants, according
to the Federal census of 1920, or any future cen-
sus, shall have the right upon petition of sixty per
cent of the owners of real estate in a given district
in such counties, to establish restricted residence
districts outside the limits' of incorporated towns
and municipalities within which district it shall be
unlawful to erect, reconstruct, alter, repair, use or
occupy, without a permit from the Commissioners
of Roads and Revenues, or if there be no such, the
Ordinary or other governing authority, of such
counties, any buildings for business or commerical
purposes or buildings for any purpose other than
as residences, school houses, apartment houses
churches, and other similar uses and purposes.
Acts 1925, p. 337.
§ 848(5.) Buildings built in violation declared
nuisances. — Any building or structure erected,
occupied or used in violation of any of the pro-
visions of this bill is hereby declared to be a
nuisance and it is hereby made the duty of the
solicitor general of the circuit in which such
counties are located, to prosecute all persons vio-
lating the provisions of this bill with respect to the
erection and use and occupancy of any buildings
or other structures in such districts without first
obtaining a permit from the Commissioners of
Roads and Revenues of such counties, or other
governing authority, as provided herein and in all
cases where the punishment provided herein fails
to abate such nuisance, he shall cause to be
brought in the Superior Court in and for such
county an action for the abatement thereof. Acts
1925, p. 337.
§ 848(6). Cemeteries, hospitals and other simi-
lar institutions not affected. — This Act shall not
repeal any law now in force restricting the con-
struction, and defining the conditions under which
cemeteries, hospitals, and other similar institu-
tions may be constructed and maintained within
the counties of the State. Acts 1925, p. 337.
[17
CHAPTER 14.
County Police, Election, and Maintenance.
§§ 849-855. Superseded.
Editor's Note. — These sections are clearly superseded by
the Act of 1914, p. 142, codified as §§ 855 (1) to 855 (8).
§ 855(1). Policemen of good character to be
appointed. — The county Commissioners of the
counties of this State, having any number of popu-
lation (or the ordinaries of such counties having
no commissioners), shall have and are hereby
given authority, in their discretion, to elect or ap-
point county police; said police to consist of such
number of men of good character, not under
twenty-one years of age, as such county commis-
sioners or ordinaries shall, in their discretion,
elect or appoint as aforesaid. Acts 1914, p. 142.
§ 855(2). Salaries and expense; levy of tax. —
Said county commissioners or ordinaries shall fix
the salaries of said county police; and the same,
together with expense of maintaining said county
police, shall be paid out of the county treasury,
and to that end the said county commissioners or
ordinaries are hereby authorized and empowered
to levy such tax as (may be necessary to pay said
salaries, and such expense over and above the
sums for which they are now authorized to levy a
tax. Acts 1914, p. 142.
§ 855(3). Powers of policemen defined Said
county police shall each of them have under the
direction and control of the commissioners or
ordinaries the same power to make arrests, and to
execute and return all criminal warrants and proc-
esses, as sheriffs of this State now have, and
shall, under the same directions and authority,
have all the powers of sheriffs as peace officers in
the county of their election or appointment. Acts
1914, p. 142.
§ 855(4). Duties of inspecting roads and
bridges. — The said county police shall also, under
the direction of said county commissioner or
ordinaries, perform the duty of inspecting all the
roads and bridges of the county, and shall, under
such direction, report from time to time, the con-
ditions of the roads and bridges of said counties.
Acts 1914, p. 142.
§ 855(5). Rules for conduct of policemen. —
The said county commissioners or ordinaries shall,
upon election or appointment of county police,
make rules and regulations for the conduct, man-
agement and control of said county police; and
shall, from time to time, enlarge, modify or
change such rules and regulations as their discre-
tion may dictate. Acts 1914, pp. 142, 143.
§ 855(6). Bond may be sued on by any one
damaged. — Upon the election of such county po-
lice each of them shall enter into a good and sol-
vent bond, in a sum not less than one thousand
dollars, to be fixed by said commissioners or
ordinaries, conditioned for the faithful perform-
ance of all their duties; and any one injured or
damaged by any one of said county police may
bring suit upon his bond in his or her name, or in
the name of the commissioners or ordinaries, for
his or her benefit or use. Acts 1914, pp. 142, 143.
§ 855(7). Terms of office not fixed; removal. —
6]
§ 855(8)
MUNICIPAL CORPORATIONS
§ 855(11)
The terms for which said county police shall be
elected or appointed shall be left to the discretion
of the commissioners or ordinaries and such
county police, or any member thereof, may be re-
moved from office at any time at the will of the
commissioners or ordinaries, with or without
cause. Acts 1914, pp. 142, 143.
§ 855(8). In counties having resorts, etc.; com-
pensation.— The Commissioners of Roads and
Revenues or o.ther authority or authorities having
charge of county affairs, in all counties in this
State in which there are or may be hereafter estab-
lished, public resorts or settlements of people
either permanent or temporary, which resorts or
settlements are or may be outside of the limits of
a municipal corporation, shall have the power to
appoint and employ County Police for the pur-
pose of preventing and suppressing any violations
of law in such resorts or settlements, and all such
police shall have all the powers as to making
arrests and preserving order as are at present or
as may be hereafter conferred on sheriffs or other
officers of this State. Said county authority or
authorities shall have the power to pay such
County Police out of the county funds, and to
make a tax levy for such purposes along with the
other purposes provided by law. Acts 1913, p. 81.
SEVENTH TITLE.
Municipal Corporations.
CHAPTER %,
Towns and Villages.
ARTICLE l.
How Incorporated.
SECTION l.
Petition To Superior Court And Preliminary
Election.
§ 855(9). (§ 683.) Superior-court charters. —
The superior court of either county shall have
power to grant charters to towns and villages
when the territory described in such charters is in
more counties than one, in the same manner as
when the territory is in one county only. Acts
1882-3, p. Ill; Acts 1890-1, p. 190; 1893, p. 65.
§ 855(10). (684.) Existing towns, by what law
governed; new towns and villages, how incorpo-
rated.— The towns and villages heretofore estab-
lished in this State, shall remain subject to the laws
now in force, applicable thereto respectively; and
the provisions hereinafter set forth shall be deemed
applicable only to towns and villages established
after August 25th, 1872. Acts 1872, p. 16; 1874, pp.
44, 46.
Editor's Note.— The act from which this section is codi-
fied provided that towns and villages heretofore estab-
lished may exercise all the power authorized by the act,
even though not conferred in their charter, and as far as
it conferred power not conferred by charter would be con-
sidered an amendment thereto.
This part of the act was limited by the amendment of
1874, page 44, by providing that these powers might
[1
be exercised by all such towns with whose charters
they were not in conflict, that such town might surren-
der their charters and be incorporated under the act, or
that the charters might be amended so as to include it.
In the same year (1874, page 46) the caption of the orig-
inal act was amended so as to make it inclusive of this
subject matter. But in 1878, in the case of Ayeridge v.
Town Comm., 60 Ga. 404, the court held that the original
caption did not include it and that the act amending the
caption did not remedy the defect because it violated the
constitutional inhibition against a title referring to two
subject matters (§ 6437).
Without these provisions the act does not apply t<> all
the territory of the state and is therefore a special act
applying only to those towns expressly incorporated un-
der it (See Benning v. Smith, 108 Ga. 259, 33 S. E- 823).
This being true the Supreme Court held in Douglasville
v. Johns, 62 Ga. 423, that where a charter granted since
the act incorporated the provisions thereof, they become a
part of the charter and are valid even though the part of
the act relating to towns previously incorporated was un-
constitutional. The charter in this case adopted the pro-
visions of the act only by reference. (See Georgia Ky.
Co. v. State, 104 Ga. 831, 31 S. E. 531). But the case of
Cumming v. Puett, 97 Ga. 247, 22 S. E. 933, holds that by
expressly adopting certain sections of this act, the entire
act was not adopted, and sections not mentioned could
not be enforced.
Since these provisions can not possibly be enforced they
are omitted from the section, only the valid provisions
being given.
Inasmuch as this act is a special law, the legislature may
create corporations by special acts without reference to it.
and when this is done, such corporation derives no power
from this act. (See Benning v. Smith, 108 Ga. 259, 33 S.
E. 823). In Walker v. McNelly, 121 Ga. 114, 119, 48 S.
E. 718, the court held that the last clause of this section
applies only to towns and villages incorporated under this
act since 1872 and not to municipalities created by special
acts. White v. Atlanta, 134 Ga. 532, 68 S. E- 103, is au-
thority for the point that this act will not prevent the leg-
islature from amending the charter of a city by extend-
ing its limits which charter was granted prior to this act. .
The amendatory act of 1874, page 44, contained also a
provision that the applying town under this act should now
be within a mile of a city, this was held to make the statute
a special law in Fullington v. Williams, 98 Ga. 807, 808, 27
S. E- 183. This provision was repealed by the Acts of 1897,
page 94. See editor's note under § 855 (11).
§ 855(11). (§ 685.) Application for incorpora-
tion, how made. — Whenever the qualified voters
of any town or village, not incorporated, consisting
of not less than twenty-five qualified voters, wish
to be incorporated, a petition shall be filed, by at
least a majority of the male inhabitants of such
town or village, in the superior court of the county
in which the inhabitants reside, stating in such
petition the proposed boundaries of such town,
and the name to be given, if incorporated. The
persons intending to make such application shall
give notice that they will apply on some day there-
in specified, to said superior court, and shall also
specify in such notice a day on which all the quali-
fied voters residing in the proposed boundaries of
such town will meet to vote on the question of
incorporation; which said notice shall, if there be
a newspaper printed within such territory, be
printed therein once in each week for four succes-
sive weeks previous to the time specified for making
such application and taking such vote, and if there
be no such paper, the notice shall be posted in at
least three of the most public places in such terri-
tory for four weeks at least before the time so
specified therein. Acts 1872, p. 16.
Editor's Note. — For the same reason pointed out in the
editor's note under the preceding section, the Supreme
Court has held that the provision of this act limiting the
size of the town to 25 qualified voters, prevents this act
from being a general one (see Benning v. Smith, 108 Ga.
259, 33 S. E- 823), and the legislature may grant charter to
any size town by special act.
It is well to note that the legislature raised their re-
•7]
§ 855(12)
CORPORATE OFFICERS AND THEIR DUTIES
§ 855(15)
quirement to 2,000 inhabitants by the Acts of 1890-91, page
190, vol. 1. But this act was repealed in 1893, page 65, and
the repealing act was held valid in Fullington v. Williams,
98 Ga. 807, 27 S. F. 183.
For a full discussion of the towns to which this act is
applicable, reference should be had to the note under the pre-
ceding section.
When Corporation De Facto— Collateral Attack.— A mu-
nicipality attempting to incorporate under this section, be-
came at least, a de facto corporation, the legal existence
of which could not be collaterally attacked. Constitution v.
Chestnut Hill Cemetery Asso., 136 Ga. 778, 71 S. F- 1037.
Corporation De Jure Where Compliance Had.— Where
town complied with all the requirements of this statute in
applying for charter, etc., and duly elected officers there-
under, it became a de jure corporation. Sell v. Turner, 138
Ga. 106. 74 S. F. 783.
Sufficiency of Compliance.— See Ducan v. Toombsboro, 81
Ga. 353, 9 S. F. 1100.
§ 855(12). (§ 686.) Corporation determined by
election. — On the day mentioned in such notice for
the taking of the vote, the qualified voters residing
within the proposed bounds shall meet at the place
named therein and cast their votes for or against
such incorporation. Each voter shall deposit a
ballot in a ballot-box to be provided for that pur-
pose, with the words written or printed thereon
"For incorporation," or "Against incorporation,"
which vote shall be taken under the superintend-
ence of any three voters, within the said boundary,
appointed for that purpose by the voters present,
and the result of such vote shall be certified and re-
turned by them, under oath to the superior court
of the county, in case a majority of all the qualified
voters residing within such boundary shall vote in
favor of such corporation. Acts 1.872, p. 17.
SECTION 2.
Certificate of Incorporation.
§ 855(13). (§ 687.) Certificate or incorporation.
—Upon the filing of such certificate, the superior
court shall, by an order, direct the clerk of said
court to issue a certificate of the incorporation of
such town or village, in form or in substance as
follows:
"A certificate under oath of A. B., C. D., and E.
F., that a majority of the qualified voters in the
following boundaries, to wit: (here recite the
^boundaries), having been given in due form of law,
in favor of the incorporation of the town (or village)
of , in the county of , and it appearing to the
satisfaction of the court that the provisions of the
Code of Georgia have been complied with by the ap-
plicants for said corporation, the said town (or vil-
lage) is duly authorized, within the corporate limits
aforesaid, to exercise all the corporate powers con-
ferred by the legislature of the State of Georgia,
from and after the date of this certificate.
" , Clerk."
And from and after the date of such certificate the
territory embraced within the boundary mentioned
in said certificate, shall be an incorporated town or
village, by the name specified in said notice and
certificate. Acts 1872, pp. 17, 18.
As to the municipalities to which this section is appli-
cable, see note under § 855 (1).
Compelling Order by Mandamus. — One superior-court judge
has no power to issue a mandamus against another su-
perior-court judge to compel him to compel the clerk to
issue an order under this section. Shreve v. Pendleton,
129 Ga. 374, 58 S. F. 880.
Power to Object to Issuance. — There is no provision in
[1
the law which authorizes any one to appear and object to
the granting of the order directing the clerk of the su-
perior court to issue the certificate of incorporation as
provided in this section. Mangham v. Mallory, 128 Ga.
430, 57 S. F. 688.
Sufficiency of Order. — An order for incorporation of a
town was not void on the ground that the limits of the
incorporation were indefinite, where the territory em-
braced within the corporate limits of the town was that
which was included within a radius of one mile from the
center of the location of the depot. Constitution v. Chest-
nut Hill Cemetery Ass'n, 136 Ga. 778, 71 S. F. 1037.
Review of Grant of Order. — There is no provision for
the review of the supreme court, by writ, of error or oth-
erwise, of the action of the superior court in granting an
order incorporating a town. Mangham v. Mallory, 128
Ga. 430, 57 S. F. 688.
SECTION 3.
Election For Organization.
§ 855(14). (§ 688.) Election of officers, how
held. — 1. At the term of ordering the certificate
mentioned in the preceding section, the court shall
appoint three legal voters residing within the said
territory, who shall act as inspectors at the first
election to be held in said town, or village, as here-
inafter provided, and in case they shall fail or refuse
to act, the said election may be held, certified and re-
turned by any three voters of said town, or village,
appointed for that purpose by voters present.
2. The first charter election for officers of such in-
corporation shall be held within sixty days
from the date of the certificate mentioned in
the said section, of which election the appointed in-
spectors of election, or persons acting as such, shall
cause at least two weeks notice to be given of the
time and place of holding such election, and the
officer to be voted for.
3. Such inspectors, or persons acting as such,
after taking the oath prescribed for superintendents
of elections in the Code, shall prescribe and act as
inspectors of election, and all the laws applicable to
the election of county officers shall apply to such
election, if not inconsistent with the provisions of
this Chapter; and such inspectors shall, within ten
days after such election, grant a certificate to the
person elected, which shall be recorded among the
records of such town or village. Acts 1872, pp. 17,
18.
SECTION 4.
Corporate Officers and Their Duties.
§ 855(15). (§ 689.) Council; officers and their
duties. — 1. The municipal authorities of such town
or village shall be a mayor, a recorder, and five
councilmen, who together shall form a common
council; but no person shall be eligible to either of
said offices unless at the time of his election he re-
sides within the corporation.
2. The mayor, recorder, and councilmen of such
town or village, as soon as they have been elected
and qualified as herein provided, and their succes-
sors in office, shall be a body politic and corporate
by the name of "the town (or village) of ," and
shall have perpetual succession, and a common seal,
and by that name may sue and be sued, plead and
be impleaded, purchase and hold real estate neces-
sary to enable them the better to discharge their
§ 855(16)
POWERS OF COUNCIL AND ITS OFFICERS
§ 855(21)
duties and needful for the good order, government,
and wellfare of said town or village.
3. All the corporate powers of such corporation
shall be exercised by said council, or under their
authority, except when otherwise provided.
4. They shall also elect a treasurer and marshal if
they deem necessary, each of whom, when elected,
shall enter into a bond with sufficient sureties ap-
proved of by the mayor, in such penalty as the
board shall prescribe, payable to the corporation,
conditioned faithfully to collect and pay over, as
required b}^ the board, all taxes, fines, forfeitures,
and all other incomes of said corporation, and said
officers shall continue in office during .the pleasure
of council, and perform the duties respectively as
herein prescribed, or as may be required by the
council. Acts 1872, p. 18.
As to municipalities to which this section is applicable,
see note under § 855 (10).
A marshal de jure holds at the pleasure of the com-
mon council by express provision of this statute, and his
removal by that body terminated his right both to the
jffice and its emoluments. Miller v. Seney, 81 Ga. 489,
i S. E. 423.
Liability for Salary of De Facto Officer. — A town incor-
porated under this act is not liable for compensation be-
yond the time actually served by a marshal de facto. Mil-
er v. Seney, 81 Ga." 489, 8 S. E. 423.
Failure of marshal to give bond makes him a de facto
Dfficer. Miller v. Seney, 81 Ga. 489, 8 S. E. 423.
Where Section Not Part of Charter No Power Thereun-
ler. — See editor's note under § 855 (10).
Inasmuch as a charter, while adopting numerous sections
>f the general law for the incorporation of towns and vil-
ages as embodied in this chapter, expressly omits this sec-
:ion, and council have no authority to elect a marshal eo
lomine; and therefore if, contrary to law, they went
:hrough the form of electing a person to this office, he had
io authority to act thereunder. dimming v. Puett, 97
3a. 247, 22 S. E. 933.
§ 855(16). (§ 690.) Term of office.— The officers
irst elected in such town or village shall hold their
offices until their sucessors are elected and qualified.
rhe terms of all officers elected after the first elec-
:ion shall commence on the first Tuesday in Febru-
iry in each year, and shall be for one year, and until
:heir successors are elected and qualified. Acts
1872, p. 18.
As to municipalities to which this section is applicable, see
aote under § 855 (10).
Effect of Failure to Function.— See § 855 (18).
The fact that the mayor, recorder and alderman volun-
arily ceased to perform their official duties did not oper-
ite to terminate the corporate existence. Such officers
leld office until their successors were elected and quali-
led, though not functioning. Sell v. Turner, 138 Ga. 106,
r4 S. E. 783.
SECTION 5.
Elections, And Qualification of Voters.
§ 855(17). (§ 691.) Annual election and oath of
Dfficers. — After the first election of officers in such
:orporation, they shall be elected on every first
Thursday in January, at such place in the town or
village, and under such supervision, rules, and reg-
ulations (not inconsistent with the laws regulating
:ounty elections) as the council may prescribe; and
;very person elected or appointed to an office in
such corporation, shall, within twenty days after his
election or appointment, and before he shall enter
upon the duties of his office, take and subscribe the
which oath, with the certificate of the officer ad-
ministering the same, shall be filed with the re-
corder of the town or village. Acts 1872, p. 18.
§ 855(18). (§ 692.) Effect of failure to hold elec-
tion.— The franchises of such corporation shall n< t
be forfeited or discontinued by a failure to hold the
election at the proper time; but the officer or other
person authorized by law, or, on their failure, an\
justice of the peace therein, may at any time, on giv-
ing the inhabitants at least five days notice thereof,
by advertisement in some newspaper, or by written
or printed notices at three or more public places in
the corporation, hold such election; and the persons
elected at such election shall have the same powers
and authorities as if they had been elected at the
regular period. Acts 1872, p. 19.
As to municipalities to which this section is applicable,
see note under § 855 (10).
Estoppel of Council Members to Question Legality. —
Where a council by mistake of law duly advertised and
held an election at the wrong time, participating as candi
dates themselves, they are estopped from bringing an ac-
tion quo warranto to question legality. Dorsey v. Anslev.
72 Ga. 460, 461.
§ 855(19). (§ 693.) Qualified voters.— All per-
sons who have been bona fide residents of such town
or village for six months next preceding a charter
election held therein, and who are qualified voters
under the Constitution and laws of the State, and
none others, shall be allowed at any charter elec-
tion in said town. But no person shall be deemed
a resident of any such town or village by reason of
being a student of any school or collage therein, or
being stationed therein for any temporary pur-
pose. Acts 1872, p. 19.
§ 855(20). (§ 694.) Vacancies. — When a va-
cancy shall occur from any cause in the office of
mayor, recorder, or in the council, the vacancy shall
be filled by appointment by the council from among
the citizens of the town or village, eligible under
this Chapter. Acts 1872, p. 19.
ARTICLE 2.
Powers Of Council And Its Officers.
oath of office, which may be done before any per
son authorized b}^ law to administer oaths, or before I in case of a tie. shall have the casting vote. Acts
SECTION i.
Council And Its Meetings.
§ 855(21). (§ 695.) Presiding officer, quorum,
books, etc. — The council shall be presided over at
its meetings by the mayor, or, in his absence, by one
of the councilmen, elected by a majority of the
council present, and a majority of the council shall
be necessary to form a quorum for the transaction
of business. The council shall cause to be kept in
a well-bound book an accurate record of all its pro-
ceeding, by-laws, acts, orders and resolutions, which
shall be full}^ indexed and open to 'the inspection of
any one who is required to pay taxes in such town
or village. At such meeting of the council, the
proceedings of the last meeting shall be read, and
corrected if erroneous, and signed b)r the presiding
officer for the time being. Upon the call of any
member, the }Teas and nays on any question shall
be taken and recorded on the journal. The mayor.
the mavor or recorder of such
town or village, 1 1872, p. 19.
[179]
§ 855(22)
POWERS OF COUNCIL
§ 855(25)
SECTION 2.
Powers of Council.
§ 855(22). (§ 696.) Powers and duties of the
council. — The council of such town or village shall
have power therein to lay off, vacate, close, open,
alter, curb, pave, and keep in good order and re-
pair roads, streets, alleys, sidewalks, crosswalks,
drains, and gutters, for the use of the public, or
any of the citizens thereof, and to improve and
light the same, and have them kept free from ob-
structions on or over them; to regulate the width
of sidewalks on the streets, and to order the side-
walks, footways, crosswalks, drains, and gutters
to be curbed and paved and kept in good order,
free and clean, by the owner and occupants there-
of, or of the real property next adjacent thereto,
to establish and regulate market; to prescribe the
time of holding the same; to prevent injury or an-
noyance to the public or individuals from anything
dangerous, offensive or unwholesome; to prevent
hogs, cattle, horses, sheep, and other animals, and
fowls of all kinds, from going at large in such
town or village; to protect places of divine worship
in and about the premises where held; to abate
or cause to be abated anything which, in the
opinion of the majority of the whole council, shall
be a nuisance; to regulate the keeping of gun-
powder and other combustibles; to provide, in or
near the town or village, places for the burial of
the dead, and to regulate interments therein; to
provide for the regular building of houses or other
structures, and for the making of division fences
by the owners of adjacent premises, and the drain-
age of lots by proper drains and ditches; to make
regulations for guarding against danger or damage
by fire; to protect the property and person of the
citizens of such town or village, and to preserve
peace and good order therein, and for this purpose
to appoint, when necessary, a police force to as-
sist the marshal in the discharge of his duties; to
prescribe the powers and define the duties of the
officers appointed by the council, fix their term
of service and compensation, require and take from
them bonds when deemed necessary, payable to
such town in its corporate name, with such sureties
and in such penalty as the council may see fit, con-
ditioned for the faithful discharge of their duties:
to erect or authorize or prohibit the erection of
gas-works or water-works in the town; to prevent
injury to or pollution of the same, or to the water
or healthfulness of the town; to regulate and pro-
vide for the weighing of hay, coal, and other
articles sold or for sale in the town, and to pro-
vide a revenue for the town and appropriate the
same to its expenses; to provide for the annual
assessment of taxable property therein, and to
adopt rules for the regulation and government of
its own body. To carry into effect these enumer-
ated powers and all others conferred upon such
town or village, or its council, by this Chapter, or
by any future act of the legislature of the State,
the council shall have power to make and pass
all needful orders, by-laws, ordinances, resolu-
tions, rules, and regulations, not contrary to the
Constitution and laws of this State, and to pre-
scribe, impose, and enact reasonable fines, penal-
ties, and imprisonments in the county jail, or the
place of imprisonment in said incorporation, if
there be one, for a term not exceeding thirty days
for the violation thereof.
As to municipalities to which this section is applica-
ble, see note under § 55 (10).
Fire Limits — Building Regulations. — iWhere a city has.
passed an ordinance establishing fire limits and regulating;
buildings therein, it is error to enjoin the officers from
enjoining building regulations even though they may have
not enforced it against other structures in the past. Syl-
vania v. Hilton, 123 Ga. 754, 51 S. E- 744.
Power of City to Carry on Private Business. — The gen-
eral welfare clause of this section does not give munici-
pality power to operate liquor dispensary. Leesburg v.
Putnam, 103 Ga. 110, 29 S. E- 602. See also 104 Ga. 728,.
and see note to § 855 (28).
Power of Authorities to Levy Taxes. — Towns and vil-
lages in this State, incorporated by the superior courts,
under the provisions of this act, are authorized, through
their mayors and councils, to levy, assess, and collect
taxes on businesses or occupations, for the purpose of rais-
ing revenue for corporate purposes. O'Neal v. Siloam,.
147 Ga. 420, 94 S. E- 238; Lewis v. Harris, 12 Ga. App.
305, 77 S. E- 108, and cases cited. See editor's note under
§ 855 (11).
Revision of Tax Returns. — Under this section, it is within
the power of mayor and council of a town, whose charter
adopts it, to revise the returns of tax payers whenever in
their judgment there has been an undervaluation in the re-
turn of the taxpayer's property made by him. Cumming
v. Puett, 97 Ga. 247, 22 S. E- 933.
Employment of Police Officers. — See note under § 855 (15).
Duties of Police Force Appointed. — Where a charter
adopts this section, but provides that the constables of
the district shall perform duties of marshall, when the
town appoints, under this section a police force to assist
the constable, it shall be the duty of such police force-
to assist constables in collecting taxes under § 855 (29)
which was also adopted. Cumming v. Puett, 97 Ga. 247,
22 S. E. 933. See note under § 855 (10) for note on power
to adopt portions of statute.
§ 855(23). (§ 697.) May organize chain-gangs.
- — The right and power to organize work-gangs or
ether means of confinement and to confine at labor
therein, for a term not exceeding thirty days, per-
sons convicted of violating the ordinances of such
towns and villages, are hereby conferred on the in-
corporated towns and villages of this State, or
their respective authorities: Provided, that said
penalty shall be inflicted only as an alternative of
failure or refusal to pay fines imposed for such
violations. Acts 1880-1, p. 179.
§ 855(24). (§ 698.) May provide for forfeiture
of bonds. — Any municipal corporation in this State
shall have full power and authority to provide,
by ordinance, for the forfeiture of bonds given by
offenders for their appearance before municipal
courts, and to provide for the collection of the
same from the principal and sureties to such bonds
by judgment, execution, and sale. Act 1880-1, p.
176.
As to municipalities to which this section is applica-
ble, see § 855 (10).
Effect of Failure to Adopt Ordinances. — Under this sec-
tion a municipal court has no authority to forfeit a baif
bond unless the proper municipal authorities have adopted
ordinances for this purpose, prescribing the rules and reg-
ulations and proceedings for accomplishing this end of the
fact that power is given to a municipal court to take
bail for the apperance of accused persons does not nec-
essarily imply the power of such a court to forfeit the
bond. If no such ordinance has been adopted, the remedy
is to bring suit upon the bond, in the proper court. Koger
v. Madison, 108 Ga. 543, 34 S. E- 133.
§ 855(25). (§ 699.) May bind over or commit
offenders. — Any mayor, recorder, or other proper
officer presiding in any municipal court in this
State, shall have authority to bind over, or com-
mit to jail, offenders against any criminal law of
this State, whenever in the course of an investi-
gation before such officer a proper case therefor
180]
§ 855(26)
TAXES, LICENSES', AND STREETS
§ 855(30)
shall be made out by the evidence. Act 1880-1, p.
176.
As to municipalities to which this section is applicable,
see note to § 855 (10).
Officers Ex-Officio Justice. — "The recorder is ex-officio a
justice of the peace for the purpose of committing defendant
for State offenses disclosed in investigations made in the
police court." Smith v. Atlanta, 5 Ga. App. 492, 63 S. E.
S69.
SECTION 3.
Taxes, Licenses, and Streets.
§ 855(26). (§ 700.) Taxes, on what, and how
levied. — The council shall cause to be annually
made up, and entered upon its journal, an accurate
estimate of all sums which are or may be lawfully
chargeable on such town or village, and which
ought to be paid within one year, and it shall order
a levy of so much as may in its opinion be neces-
sary to pay the same. The levy so ordered shall
be upon all dogs in the said town or village, and
upon all the real and personal estate therein, sub-
ject to State and county tax: Provided, that the
tax so levied shall not exceed one dollar on every
hundred dollars of the value thereof. Act 1872,
p. 21.
As to municipalities to which this section is applicable,
see note to § 855 (10).
Taxation of Businesses and Occupations. — The general
power of the council to levy a tax of so much as may in its
opinion be necessary to pay the expense of the town annu-
ally, granted in this section does not exclude the power to
tax businesses and occupations, on the authority of Home
Ins. Co. v. Augusta, 50 Ga. 530. O'Neal v. Siloam, 147
Ga. 420, 424, 94 S. E. 238.
§ 855(27). (§ 701.) Streets, by whom and how
worked. — Every male resident of said town or vil-
lage, not under sixteen nor over fifty years of age,
shall, if required by the council thereof, work not
exceeding fifteen days, by himself or an acceptable
substitute, on the roads, streets, and alleys of said
1own or village, under the direction of the super-
intendent of roads, streets, and alleys, or may be
released from such work upon the payment to the
superintendent or council of such amounts as may
he fixed by the council, the money so paid to be
used in the improvement of said roads, streets, and
alleys; and if said work and money so paid is not
sufficient to put and keep the roads, streets, alleys,
sidewalks, cross-walks, drains, and gutters of such
town or village in good repair, the council thereof
shall levy a tax on all the subjects of taxation
therein, sufficient for that purpose, and to pay ail
other expenses incident thereto. And the munici-
pal authorities of any incorporated city in this
State are hereby authorized to permit the inclosure
of any lane or alley, or portion of a lane or alley
in such city, when the owners of the lots abutting
on such lane or alley, or portion of the lane or
"alley, sought to be secluded, and the owners of
any other lots, to the enjoyment of which access
through said lane or alley is necessary, consent:
Provided, that said municipal authorities may have
the right at any time to reopen said lane or alley.
Act 1872, p. 21; Acts 1878-9, p. 171.
§ 855(28). (§ 702.) Licenses. — Whenever any-
thing" for which State license is required is to be
<lone within such town or village, the council may
require a town or village license therefor, and may
impose a tax thereon for the use of the town or
village, and may also require a bond, with sureties,
•conditioned as prescribed in section 689, § 855(15") I ipalities generally, see note to
[181]
(this Code.), payable to such town or village, in
such penalty as it may think proper, and may re-
voke such license at any time, if the condition of
said bond be broken. And they shall have power
to license and regulate the management of bar-
rooms, saloons, hotels, and private boarding-houses,
livery-stables, and private and public transporta-
tion through the town or village, and in addition
to the ad valorem tax provided for by law, to levy
a tax on all billiard-tables, tenpin or ninepin al-
leys, and tables and alleys of any other kind used
for the purpose of playing on with pins or balls,
or both, within such town or village, and on all
contrivances, of whatever kind, used for the pur-
pose of gaming or carrying on a game of chance,
by selling cards, tickets, or numbers, or by turn-
ing a deal or wheel, or by using any other artifice
or contrivance. Thev shall also have power to tax
all shows taxed by the laws of this State, which
may exhibit within such town or village, which
tax may be collected, if not voluntarily paid, by
execution and levy and sale, as provided for the
collection of taxes under the general law prescrib-
ing the mode of incorporating towns and villages:
and said council shall have full power to pass all
ordinances necessary to carry into effect the pro-
visions of this section. Acts 1872, p. 21; Acts 1876,
p. 25.
As to municipalities to which section is applicable, see
note to § 855 (10).
Occupation Taxes. — See note to § 855 (22).
Dispensaries. — Section not authority to operate, Leesburg
v. Putnam, 103 Ga. 110. 29 S. E. 602. See note to § 855 (22).
Taxation under section, see Tames v. Rav, 130 Ga. 694, 61
S. E. 54.
County License Is State License. — The intention of the
legislature was to confer the power upon towns to tax for
license therein whenever the state though the counties
required such a license. A tax by count}- is tax by state,
under this, section. Douglasville v. Johns, 62 Ga. 423,
426.
§ 855(29). (§ 703.) Marshal's duty.— It shall be
the duty of the marshal to collect the town or vii •
lage taxes, fines, levies, and assessments, and in
case the same are not paid within one month after
they are placed in his hands for collection, the
council shall issue execution therefor, and the
marshal may levy and sell therefor in like man-
ner, and under the same regulations, as the offi-
cers of the State are now authorized to levy and
sell under other executions. Acts 1872, p. 21.
As to municipalities to which section is applicable, see
note to § 855 (10).
Duty of police force appointed under § 855 (22) to as-
sist in collecting taxes, see note under § 855 (22). As to
appointment, etc., see § 855 (15).
§ 855(30). (§ 704.) Lien for taxes, how en-
forced.— There shall be a lien on real estate with-
in such town or village, for the town or village
taxes assessed thereon, and for all other fines and
penalties assessed or imposed upon the owners
thereof by the authorities of such town or village,
from the time the same are assessed or imposed,
which shall have a priority over all other liens, ex-
cept the lien due the State and county, and may
be enforced in the same manner as now prescribed
by law for the enforcement of the lien for county
taxes, or in such other manner as the council may
by ordinance prescribe. Act 1872, p. 22.
When Action Not Applicable.— Where the adoption of this
section was made nugatory by new charter, it prevents ap-
plication of section. Perteet v. Fricks, 9 Ga. App. 637, 71
S E. 1121. As to when this statute applicable to munic-
855(10).
§ 855(31)
MUNICIPAL CORPORATIONS
§ 857
SECTION 4.
Mayor and Other Officers.
§ 855(31). (§ 705.) Powers and duties of
mayor. — The mayor shall be the chief executive
officer of the town or village; he shall take care
that the orders, by-laws, ordinances, acts, and reso-
lutions of the council are faithfully executed; he
shall be ex officio justice of the peace within the
town or village; shall, within the same, possess
and exercise all the powers and duties, vested by
law, as a justice of the peace, except that he shall
have no jurisdiction as such in civil cases. He
shall have control of the police of the town or
village, and may appoint special police officers
whenever he deems it necessary, and it shall be
his duty especially to see that the peace and good
order of the town or village are preserved, and that
persons and property therein are protected, and
to this end he may cause the arrest and detention
of all riotous and disorderly persons in the town
or village, before issuing' his warrant therefor. He
shall have power to issue executions for all fines,
penalties, and costs' imposed by him, pr he may re-
quire the immediate payment thereof, and in de-
fault of such payment, he may commit the party
in default to the jail of the county in which such
town or village is situated, or other place of im-
prisonment in such corporation, if there be one,
until the fine or penalty or costs shall be paid; but
the term of imprisonment in such case shall not
exceed thirty days. In the absence from the town
or village, or sickness of the mayor, or during any
vacancy in the office of mayor, any one of the
councilmen, selected by the majority, shall per-
form his duties, and be vested with all his powers.
Acts 1872, p. 22; 1890-1, p. 66.
§ 855(32). (§ 706.) Compensation of officers.—
The mayor, recorder, and marshal of the town or
village shall each receive such compensation for
their services as may be fixed by council, which
shall not be increased or diminished during their
term of office. Act 1872. p. 22.
§ 855(33). (§ 707.) Jail fees, how paid. — The
expense of maintaining any person committed to
the county jail, or other place of imprisonment,
by the mayor, shall be paid by the town or village,
and all costs incurred in the corporation of any
town or village shall be paid by the same. Acts
1872, p. 22.
§ 855(34). (§ 708.) Limits of towns, how ex-
tended.— The question of extending the limits of
such corporations shall be submitted to the people
of the district to be included, and if two-thirds of
such people vote for extension, the same ma}^ be
made. Acts 1872, p. 22.
§ 855(35). (§ 709.) Officers shall not contract,
when. — No person holding office under any muni-
cipal incorporation shall, during the time for which
he was elected or appointed, be capable of con-
tracting with such corporation for the performance
of any work wThich is to be paid for out of the
treasury, nor shall amr such person be capable of
holding or having any interest in such contract,
either by himself or by another, directly or in-
directly. Acts 1872, p. 22.
As to municipalities to which section is applicable, see
note to § 855 (10).
[1
Contract with Corporation Where Councillor Held Stock. —
Contract with corporation in which member of council had
stock was held void, and not legalized by subsequent sale of
stock by member, in Hardy v. Gainesville, 121 Ga. 327, 48
S. E. 921.
Contract with mayor of Macon held void. See Macon v.
Huff, 60 Ga. 221, 228. It does not appear' that either Ma-
con, or Gainesville in the preceding paragraph, were char-
tered under this law. See note under § 855 (10). — Ed. Note.
§ 855(36). (§ 710.) Municipal debts, how cre-
ated.— No such town or village shall create any
debt except the ordinary expenses of said town
or village, unless by a vote of a majority of the
citizens of said town or village, at an election to
be held specially for that purpose. Acts 1872,
p. 22.
CHAPTER 1.
Corporate Courts and Penalties.
ARTICLE 1.
Police Courts.
See 4 Cum. Dig. 345, 3 Enc. Dig. 788.
§ 856. (§ 711.) Corporate and police courts.—
The organization of the various corporate and
police courts of this State, and the laws relative
thereto, are undisturbed by the adoption of this
Code, unless additional, concurrent, or exclusive
jurisdiction, or cumulative remedies, are conferred
by it upon them, or other courts, or other magis-
tracy, and then they are altered only to that -ex-
tent.
ARTICLE 2.
Punishment of Offenders.
§ 857. (§ 712.) Alternative sentences by police
courts. — All police courts of this State, having
authority to try offenses against the laws of the
cities, towns, and villages in which such courts
are located, shall have power and authority to im-
pose fines upon persons convicted of said offenses,
with the alternative of other punishment allowed
by law, in case said fines are not paid. Acts 1878-9,
p. 153.
For cases construing provisions of charters of Eatonton,
Macon and Atlanta as to alternative punishment, see 10
Cum. Dig. 211.
Editor's Note. — This section was taken from the Act of
1878-9, p. 153, and has retained its original form. It was
said in Leonard v. Eatonton, 126 Ga. 63, 54 S. E. 963,
that this section was in all probability enacted to meet
the holding in Brieswick v. Brunswick, 51 Ga. 639, where it
was held that "the power to punish offenders of an ordi-
nance by fine or imprisonment, conferred upon a munici-
pal corporation, does not include the authority to coerce
the payment of a fine by imprisonment." But in Carr v.
Conyers, 84 Ga. 287, 10 S. E- 630, decided after this sec-
tion was enacted, the holdings of the Brieswick case were
upheld. The Carr case makes no effort to reconcile this
section, and in the opinion of the Leonard case it is stated
that the section must have been overlooked by the court.
These decisions (the Carr and Brieswick decisions) have
never been overruled or reviewed but in the Leonard case,
supra, the majority opinion did not consider them bind-
ing. The Leonard case is the majority rule, and in the
opinion of the editor, has superseded the holdings in the
Carr and Brieswick decisions; but upon proper presenta-
tion the latter decisions should be reviewed, and if con-
trary to this section, abrogated.
Where One Sentence Is Unauthorized. — A sentence im-
82 1
§ 858
MUNICIPAL TAXATION
§ 862
posing two penalties in the alternative, one of which is
unauthorized, is not void, but may be enforced as to the
penalty which is authorized. Brown v. Atlanta, 123 Ga.
497, 51 S. F. 507. For other case, see 10 Cum. Dig. 212.
Compulsory Labor. — A municipal court authorized by the
charter to impose two or more kinds of punishment for a
violation of the municipal ordinances may impose an al-
ternative sentence under this section; but has no power in
the absence of express legislative authority to impose a
fine and enforce its collection by labor upon the public
streets. Williams v. Sewell, 121 Ga. 665, 49 S. F. 732. See
Brieswick v. Brunswick, 51 Ga. 639; Carr v. Conyer, 84
Ga. 287, 10 S. F- 630. See editor's note at the beginning
of this annotation. ,
Same — Alternative Provisions. — Where, under the charter
and ordinances of a city, the mayor has authority to pun-
ish one convicted of violating the municipal ordinances by
imprisonment or compulsory labor on the public works, or
by fine, a sentence directing "confinement on the streets"
is not rendered unlawful merely because an alternative
provision is added by which the defendant may be dis-
charged at any time upon the payment of a fine. Shuler
v. Willis, 126 Ga. 73, 54 S. E. 965.
Ordinances Construed Together. — Where three ordinances
of a city provide, among other things, that the judge of
the municipal court may impose, under certain circum-
stances, a fine or confinement in the station house, or
both, and upon the refusal of the defendant to pay the
fine, the court may by order require the person so refus-
ing to work on the streets or some public works, such
ordinances, relative to the enforcement thereof by the im-
position of a fine are to be construed together. Lyon's v.
Collier, 125 Ga. 231, 54 S. Fy. 183, see also Jones v. Lan-
ford, 141 Ga. 646, 81 S. E- 885.
Review after Execution. — A defendant who has paid a fine
imposed by a police court, with the alternative of impris-
onment, can not, after paying such fine, prosecute a writ
of error to review the judgment unless the fine was paid
under protest and under duress. Kitchens v. State, 4 Ga.
App. 440, 61 S. F. 736, citing White v. Tifton, 1 Ga. App.
569, 57 S. F. 1038. See also, Brown v. Atlanta, 123 Ga. 497,
51 S. F. 507.
Sentence Held to Be Alternative. — Where, upon the trial
of one charged with the violation of a municipal ordinance,
the court, on conviction of the accused, rendered judgment
that the defendant pay "a fine of twenty-five dollars, or,
in default thereof, that he be imprisoned in the calaboose
thirty days," such judgment imposed an alternative sen-
tence. Leonard v. Fatonton, 126 Ga. 63, 54 S. F. 963;
Hardy v. Fatonton, 128 Ga. 27, 57 S. E. 99.
§ 858. (§ 713.) Selection or appointment of
whipping-bosses. — The governing authorities of
any county or municipal corporation in this State,
employing or having labor performed by convicts,
in any such county or municipal corporation, may
appoint a whipping-boss for such convicts, and fix
his compensation and prescribe his duties: Pro-
vided, however, that proper and necessary dis-
cipline may be administered by the superintendent
or other officer or person having control of any
convict or convicts, without the employment of a
whipping-boss. Acts 1890-1, p. 211.
For other provisions relating to the discipline and pun-
ishment of convicts, see 9 Cum. Dig. 576.
§ 859. (§ 714.) When to whip,— No whipping
shall be administered to a convict by any whip-
ping-boss or other officer or person, except in cases
where the same is reasonably necessary to enforce
discipline or compel work or labor by such con-
vict.
§ 860. (§ 715.) Rules for government of con-
victs, etc. — Said governing authorities of counties
and municipal corporations, respectivel)'', employ-
ing or having labor performed by convicts, shall
prepare and have published full and complete,
reasonable and humane, rules and regulations for
the government of the convicts under their con-
trol, which rules may be amended as occasion may
require, but shall specifically prescribe the powers
and duties, in all respects, of the superintendent,
commissioner, guard, whipping-boss, or other per-
con connected with the management of convicts,
as to the care, keeping, control, work, and dis-
cipline of convicts.
§ 861. (§ 716.) Superintendent, etc., not per-
sonally liable for damage to convict. — No superin-
tendent, commissioner, guard, whipping-boss, or
other person or employer of convicts shall be per-
sonally liable for any injury or damage to any
convict, resulting from the employment, care,
keeping, control, work, and discipline of convict-
who are under the direction of said governing au-
thorities, respectively, in accordance with reason-
able and humane rules and regulations adopted as
aforesaid.
See § 1178 of the Penal Code (which is identical with this
section) and note thereto. See also, 9 Cum. Dig. 577. As t
liability of city, see § 893 and notes thereto.
ARTICLE 3.
Pro Tern Officers.
§ 861(1). Mayor or recorder. — The governing
bodies of the municipal corporations of the State
of Georgia having a corporate, police or mayor's
court are hereby authorized and empowered, either
by ordinance or resolution, to select, elect or ap-
point either a mayor pro tern, or a recorder pro
tern, to hold and preside over such corporate,
police or mayor's court in the absence or disquali-
fication of the mayor or recorder, who shall have
all of the power, authority and jurisdiction while
presiding in such corporate courts as is given by
the charter of said municipal corporation to its
mayor or recorder. Acts 1922, p. 133.
§ 861(2). Cities not affected.— This Act is not
to affect any municipal corporation where pro-
vision is made in the charter for the appointment
or selection of a mayor pro tern, or a recorder pro
tern. Acts 1922, p. 133.
CHAPTER 2.
Municipal Taxation.
For full treatment, see 8 Cum. Dig. 739: 9 Enc. Dig.
509; 10 Cum. Dig. 741; 12 Fnc. Dig. 63. For cases involv-
ing municipal occupation and license tax, see 8 Cum. Dig.
189. For cases involving taxation for municipal improve-
ments, see 10 Cum. Dig. 375. As to general provisions of
taxation, see §§ 914 et seq. As to exemption of agricultural
products from municipal taxation, see § 1851.
ARTICLE 1.
Assessors.
§ 862. (§ 717.) Tax assessors for city. — The
mayor and council of each town or city are au-
thorized, at their option, to elect three free-
holders, residing in the town or city, as assessors,
who shall value and assess all the property within
said town or city liable for taxation. All persons
dissatisfied with the value placed on their prop-
erty shall appear before said assessors and produce
testimony as to the value of property, and the de-
cision of said assessors, after hearing the evi-
dence, shall be final: Provided, that this section
shall not affect towns or cities now having the
power to appoint assessors. Acts 1890-1. p. 231.
Editor's Note.— This section was taken from the Acts
[183]
§ 863
LIMITATION ON CITIES' RIGHT OF TAXATION
§ 868
of 1891, p. 231. The act, in effect, was an amendment to
the charter of every town or city in the state which did
not at the time of its passage have the full power con-
ferred by the act, see in this connection, Dawson Compress
Co. v. Dawson, 107 Ga. 358, 33 S. E- 419. This section was
not affected by Acts of 1910 (Acts 1910, p. 22) providing
for a method of assessing and collecting taxes; now Code
§§ 1116 (1) to 1116 (5).
This section is to be construed as cumulative, conferring
upon the municipalities the option of assessing property for
taxation through the agency of appointed freeholders, but
it does not preclude an assessment through other agencies
provided by law. Shippen Lumber Co. v. Elliott, 134 Ga.
699, 68 S. E. 509.
Effect upon Existing Power. — The fact that a given city
already had the power to appoint assessors to assess real
property only did not, under the proviso in this section,
prevent it from taking effect in such city so as to author-
ize the election of assessors to assess the value of per-
sonalty. Dawson Compress Co. v. Dawson, 107 Ga. 358,
33 S. E. 419.
Who May Be Appointed. — When, as under this section, a
statute confers on an official body the power of appoint-
ment to office, their appointment of one or more of their
own members is contrary to public policy, unless expressly
authorized by the statute. Such an appointment being
without color of right, but void on its face, the appointee
is not a de facto officer, and official acts of the body
wherein he participates as such appointee are at least prima
facie invalid. Felker v. Monroe, 22 Ga. App. 301, 95 S.
E- 1023. See also, Parrish v. Adel, 144 Ga. 242, 86 S. E.
1095.
"The property-owner is entitled to a hearing at some
time before the assessment of the value of his property
becomes finally binding, and a statute which attempts to
authorize an assessment when the law does not afford him
such a hearing will be declared unconstitutional." Ship-
pen Lumber Co. v. Elliott, 134 Ga. 699, 702, 68 S. E. 509.
§ 863. (§ 718.) Reports. — Said assessors shall
make their reports at such time and in such man-
ner as the town or city authorities shall determine,
and shall be governed by rules made by the au-
thorities, unless contrary to the laws of this State.
The authorities shall, in levying or assessing the
rate of taxation, do so upon the value of the prop-
erty reported by the assessors.
§ 863(1) In certain cities assessors prohibited
from valuing own property. — In cities having a
population of not less than three thousand five
hundred and fifty inhabitants, and not more than
three thousand five hundred and fifty-two, accord-
ing to the last Census of the United States, the
City Tax Assessors shall not be permitted to
value and assess for city taxation their own prop-
erty, but the Mayor and Council shall have power
and authority to value and assess for city taxation
such property of such Tax Assessors. Laws 1912.
p. 161.
ARTICLE 2.
Limitation on Cities' Right of Taxation.
§ 864. (§ 719.) Not to tax over one half of one
per cent. — No municipal corporation shall levy or
collect for the ordinary current expenses of said
corporation, except as hereinafter provided, any
ad valorem tax upon the property within said cor-
poration, exceeding one half of one per cent, upon
the value of said property, any charter of said
corporation to the contrary notwithstanding. Acts
1874, p. 109.
See §§ 920, 1851.
Effect of Codification Omitting Exception. — The omission
from the Code of 1895 and that of 1910 of the provision of
the Act of 1874, p. 109, upon which this section is based,
declaring that it should not apply to the City of Savannah,
will not be held to have changed the entire nature of the
law as enacted, to have repealed all provisions on that sub-
ject contained in the municipal charters granted by the
legislature between 1874 and 1895, and also prior to 1910,
and to have rendered unconstitutional all such provisions
in charters granted since 1895. Cochran v. Lanfair, 139
Ga. 249, 77 S. E. 95.
§ 865. (§ 720.) "Ordinary expenses" defined;
separate accounts. — 1. The term "ordinary cur-
rent expenses" shall be construed to include all
current expenses, excepting only expenditures for
education, for paving or macadamizing streets, and
for payment of the principal and interest of the
public debt, which shall be known as "extra- I
ordinary expenses."
2. And in all cases where it shall be necessary
to levy an additional tax above said one half of
cne per cent., for any one or more of said extra-
ordinary expenses, the levy and assessment of the
same for each said extraordinary expense shall be
separately made and collected.
3. Said municipal authorities shall cause sepa-
rate accounts to be kept, on account of all amounts
collected and disbursed on account of each of said
extraordinary expenses; and all amounts so col-
lected shall be applied exclusively to the extra-
ordinary expenses for which said tax was levied
and collected. Acts 1874, p. 110.
As to the effect of this section upon the charters of the
Town of Guyton, and the Cities of Jackson, Colquitt and
Wagcross, see 8 Cum. Dig. 740.
§ 866. (§ 721.) Officer diverting money to other
purposes, guilty of malpractice. — Any officer of
any municipal corporation who shall apply any
portion of any fund collected by taxation for either
of said extraordinary expenses, to any other ordi-
nary or extraordinary expense, shall be guilty of
malpractice in office. Acts 1874, p. 110.
The Constitution and Statutes require that municipal
authorities must not divert funds raised from taxation for
any extraordinary expenses. Epping v. Columbus, 117 Ga.
263, 282, 43 S. E. 803.
This section was applied in Macon v. Jones, 122 Ga. 455,
50 S. E- 340.
§ 867. (§ 722.) Additional fund, how raised. —
If an additional fund is required by said corpora-
tion for internal improvements, not herein pro-
vided for, or if the amount realized by the levy
of one half of one per cent, shall be insufficient to
defray the ordinary current expenses of said cor-
poration, an additional tax may be levied for this
purpose when the same shall be authorized by a
vote of two thirds of the legal voters of said cor-
poration who shall vote at an election to be held
for that purpose, and separate accounts of all
amounts so collected and disbursed shall be kept
as is provided in section 865. Acts 1874, p. 110.
Effect of Charter Provisions. — Where a city complies with
this section, but the amount assessed is in excess of that
allowed by the municipal charter, the levy was ultra vires
and illegal. Canuet v. Guyton, 147 Ga. 667, 95 S. E. 227.
This case did not decide whether the additional levy was
necessary. — Ed. Note.
Whether the charter provision "that the annual expenses
of the city of Jackson shall be so restricted as not to ex-
ceed the annual income of the city" is directory or manda-
tory, a tax levy within the limits of the charter, made to
raise funds to defray expenses for the current year, would
not be invalidated even if the expenses of the city for that
year exceeded the funds to be raised by such tax levy.
McCord v. Jackson, 135 Ga. 176, 178, 69 S. E. 23.
§ 868. Traveling salesmen, when exempt. — The
municipal authorities of an incorporated town
shall not levy or collect any tax or license from a
traveling salesman engaged in taking orders for
the sale of goods where no delivery of goods is
[184]
§ 868(1)
ASSESSMENTS FOR STREET, ETC., IMPROVEMENTS
§ 871
made at the time of taking such orders. Acts
1896, p. 36.
Editor's Note. — This section was taken from the Acts of
1896, p. 36, and has retained its original form. It seems
that the purpose of the act was to protect the traveling
representatives of mercantile houses or manufacturers lo-
cated in this State from municipal taxation because of the
fact that the salesmen or agents of merchants or manu-
facturers located and holding their goods in other states
can come into Georgia and take orders for such goods
without paying any municipal tax whatever, being pro-
tected from such taxation by the constitution of the United
States. See Hofmayer v. Blakely, 116 Ga. Ill, 43 S. E- 69.
"Traveling Salesmen" Defined.— An agent of a firm or
corporation who goes from town to town in this state, ex-
hibiting samples of goods and taking orders on his em-
ployer or employers for such goods from consumers, is a
"traveling salesman," within the meaning of this section.
Kimmel v. Americus, 105 Ga. 694, 31 S. E- 623.
Where a tax was imposed upon "transient dealers" tak-
ing orders and sending certain goods to local agents in a
city, it was held, that such is invalid, because contrary to
the spirit and purpose of this section. Hofmayer v. Blakely.
116 Ga. 111. 43 S. E- 69.
Single Sale. — Though an agent may in a single instance
offer to sell, or even actually sell, one of the samples which
he carries with him, this fact alone would not render him
liable to pay the license imposed upon peddlers. Kimmel v.
Americus, 105 Ga. 694, 31 S. E. 623.
§ 868(1). Certain products purchased in car
load lots for individual use. — Any person or per-
sons purchasing guano, meat, meal, flour, bran,
cottonseed or cottonseed meal and hulls, in car-
load lots, where the bill of lading for such ship-
ment is taken in the name of an individual and
the freight paid pro rata by the owners of said
goods or merchandise, [showing] that said goods
or merchandise [were] so procured for the indi-
vidual use of such person of persons, who shall
have had such shipment made as aforesaid, and
not for sale hy said individuals, shall, upon de-
livery of said car as aforesaid, and the surrender
of said bill of lading, entitle said person or persons
to apportion said shipment or shipments between
themselves without the payment of a special or
license tax to any public corporation or munici-
pal^ as dealers or distributors of such goods or
merchandise as aforesaid. Acts 1914, p. 147.
Editor's Note — The language of the above section, ap-
pears just as taken from the printed Act except for the
words in brackets which were inserted by the editor to
clarify the meaning.
ARTICLE 3.
Assessments for Street and Other Improvements.
§ 869. (§ 723.) Municipalities may issue execu-
tions for paving, etc. — All municipal corporations
have authority to enforce the collection of any
amount due or to become due for paving streets
or lanes, or for laying sewers and drains, or for
cleaning or repairing privy vaults, by execution
to be issued by the treasurer against the persons
or corporations by whom such debts may be due,
which may be levied by the marshal on the real
estate of the owners, and after proceedings as in
cases of sales for city taxes, the same may be sold
at public outcry. All sales made by such city un-
der execution shall be subject to purchase by
said corporation, and the right of redemption by
the owner after sale. Acts 1884-5, p. 148.
For full treatment of special assessment by municipali-
ties, see 10 Cum. Dig. 376, 11 Enc. Dig. 741. See also,
5 Cum. Dig. 30; 4 Enc. Dig. 704.
As to provision that tax executions should bear interest,
see § 878. As to sales for municipal taxes, see §§ 879 et
seq. As to assessments where county cooperates with
municipality for city improvements, see § 431 (3).
[1
§ 870. (§ 724.) Renewal of pavements by as-
sessment, etc. — The mayor and council or govern-
ing authority of any city having a population of
over twenty thousand have authority to renew, by
the use of any material that may be decided on,
or repair any pavement in said city, upon the same
terms and conditions, as to assessment of prop-
erty and street-car companies, as were in force
when the pavement was originally laid: Pro-
vided, in the judgment of the city council of said
city the pavement is worn-out and no longer serv-
iceable.
And provided further, that where any change or
modification is made in the charter of any city
having a population of not less than 65, ()()() and
not more than .100,000, in regard to the method of
paving, by an amendment to such charter, pro-
vision may be made in such amendment for the
renewal and repairing of any existing pavement
under the provisions of such amendment. Act-
1890-1, p. 229; 1919, p. 81.
See 10 Cum. Dig. 376.
Editor's Note. — This section was taken from the Acts
of 1890-1, p. 229. The second proviso in the section, re-
lating to amendments of city charters of certain cities,
and giving the cities power to prescribe the .mode of re-
pairing existing pavement, was added by the Acts of
1919, p. 81.
Power to Repave. — The mayor and council of cities of
twenty thousand inhabitants have power and authority
in their discretion, to repave sidewalks in the city and
assess the cost of repaving on the real estate abutting the
sidewalk. Wallace v. Atlanta, 140 Ga. 649, 79 S. E. 554;
Odam Realty Co. v. Macon, 144 Ga. 76, 86 S. E. 243.
Same — Discretion of Council Controls. — Whether or not
the pavement of the street is "worn out" and "no longer
serviceable" is within the discretion of the city council,
and will not be interfered with unless it is plainly and
manifestly abused to the prejudice of a complaining citi-
zen. Regenstein v. Atlanta, 98 Ga. 167, 25 S. E. 428;
Burckhardt v. Atlanta, 103 Ga. 302, 30 S. E- 32. For
other cases, see 10 Cum. Dig. 377.
Power to Repave Part Only. — A power conferred by
statute upon a city, "to pave again any street on which
the pavements are worn out and useless," necessarily
carries with it the power to repave only portions of the
street where the pavements on such portions are worn
out and useless. Burckhardt v. Atlanta, 103 Ga. 302, 30
S. E. 32.
Use of New Material. — The broad power conferred upon
the municipal authorities of cities by this section, in-
cludes the power to repave with new material a street
upon which the pavement already laid has become worn
out. Regenstein v. Atlanta, 98 Ga. 167, 25 S. E- 428.
Ownership of Old Material. — The fact that owners of
property bordering on such street paid an amount assessed
against them to aid in defraying the cost of an original
pavement thereon does not give them such an interest in
the material of the old pavement as will entitle them t<
an injunction against the city for the purpose of restrain-
ing it from removing said material in order to give place
for a new pavement. Burckhardt v. Atlanta, 103 Ga. 302.
30 S. E. 32.
Removal of Old Material. — If a city has a right to pave
its streets, it necessarily follows that it has the power to
remove any material on the street that may be in the way
of a proper execution of the work. Burckhardt v. Atlanta.
103 Ga. 302, 30 S. E. 32.
Ordinances as Special Laws. — For cases involving ordi-
nances to repave as being in conflict with § 6391 which
provides that "no special law shall be enacted in any case
for which provisions have been made by an existing gen:
eral law." See Wilkins v. Savannah, 152 Ga. 638, 111 S.
E. 42; Walthour v. Atlanta, 157 Ga. 24, 120 S. E. 613.
§ 871. Where public property abuts on a street.
— -Whenever the abutting landowners of any street
or sidewalk petition to have the same improved,
and where the State, or any of its political sub-
divisions, is the owner of property on said street,
the frontage so owned is to be counted as if owned
by an individual, and shall be likewise treated for
the purposes of assessment, and where the State
85 ]
§ 872
GARNISHMENT AND INTEREST ON TAX EXECUTIONS
§ 878
is the owner of the property the Governor is au-
thorized to sign the application for and in behalf
of the State; and where the county is the owner,
the ordinary, or the chairman of the board of
county commissioners, as the case may be, is au-
thorized to sign in behalf of the county; and
where a municipality is the owner of the property,
the mayor of the city where said property is
situated is authorized to sign in behalf of the city.
Acts 1906, p. 119.
This section has no application except "whenever the
abutting owners of any street or sidewalk in the state pe-
tition to have the same improved." Lagrange v. Troup
County. 132 Ga. 384. 386, 64 S. E. 267.
ARTICLE 4. ■
Taxation of Railroads by Cities.
§ 872. (§ 725.) Property of railroads subject to
municipal taxation. — All property, real and per-
sonal, belonging to railroad companies in this
State, which is within the limits of any municipal
corporation, shall be subject to taxation by the
said municipality as fully and as completely as
is the property of other corporations within the
limits. And it is made the duty of the municipal
authorities to cause property belonging to a rail-
road company to pay its proper and just pro rata
of municipal taxes. Acts 1890-1, p. 152.
For full treatment, see 9 Cum. Dig. 829; 10 Enc. Dig. 802.
Editor's Note. — This section was taken from the Acts
of 1890-91, p. 152. It seems that the purpose of the act was
to subject all the property of railroad corporations, not
exempt by law to county and municipal taxation, and to
provide the necessary machinery to accompish this pur-
pose. The mode adopted for the assessment and collec-
tion was the same adopted for the collection of a like tax
by counties (see §§ 1036-1041 and notes thereto.)
Interstate Commerce. — The power of the city to tax rail-
roads is limited by the exclusive power of the United
States over interstate commerce. Augusta v. Augusta,
etc., R. Co., 130 Ga. 815, 61 S. E. 992.
Occupation Tax. — No authority is vested in any munici-
pality to levy an occupation tax upon a commission rail-
road doing business therein. Arlington v. Central R. Co.,
127 Ga. 721, 56 S. E. 1015.
§ 873. (§ 726.) Return, to show what— In ad-
dition to the facts required to be shown by the
Act to provide a system of taxation of railroad
property in each of the counties of the State, every
railroad company in this State shall, at the time
of making the returns provided for in said Act,
show the value of the company's property in each
incorporated city or town through which it runs.
Acts 1890-1, p. 152.
See §§ 1036, 1054.
§ 874. (§ 727.) Rolling-stock, how assessed. —
The rolling-stock and other personal property of
said railroad companies shall be distributed to
said municipalities on the same basis that rolling-
stock and other personal property are distributed
to the counties under the provision of said Act —
that is, as the value of the whole property, real
and personal, of the said compan)^ is to the value
of the property located in the particular munici-
pality, such shall be the amount of rolling-stock
and other personal property to be distributed for
taxing purposes to each municipality. Acts
1890-1, p. 152.
See 9 Cum. Dig. 829; 10 Enc. Dig. 802. See also §§
1023, 1036-1038 and notes.
§ 875. (§ 728.) County tax law applicable.— All
other provisions of said Act are made applicable
to the assessment and collection of taxes of rail-
roads by municipalities upon the property of such
railroads located in such municipalities, and upon
the rolling-stock and other personal property.
Acts 1890-1, p. 152.
See §§ 1036-1041 and notes.
ARTICLE 5.
Garnishment and Interest on Tax Executions.
§ 876. (§ 729.) Garnishment for city taxes., —
When any treasurer or other person authorized to
collect the taxes due any municipal corporation
can find no property of the defendant on which
tc levy any tax execution, he shall make an entry
to that effect on said execution, and may then is-
sue summons of garnishment against any person
whom he may believe is indebted to the defend-
ant, or who may have property, money, or effects
in his hands, without making affidavit or giving
bond. Said summons of garnishment shall be
served by the treasurer or other tax-collector, or
by the sheriff or any constable of the county in
which the garnishee may reside, at least fifteen
days before the sitting of the court, and returned
to the superior or city court of the county in which
such municipal corporation is situated. Acts
1890-1, p. 53.
See § 1154.
As to garnishment generally, see 6 Cum. Dig. 580; 6
E)nc. Dig. 718.
§ 877. (§ 730.) Entry on execution and return.
— Said treasurer shall enter on the execution the
name of the person garnished, and return the exe-
cution to said court, and the subsequent proceed-
ings shall be the same as on garnishments in cases
when judgment has been obtained. Acts 1890-1,
p. 53.
§ 878. (§ 731.) Tax executions to bear interest,
when. — All executions issued for taxes due the
State, or any county thereof, or any municipal
corporation, whether issued on assessments for
permanent improvements of streets or sewers of
said municipal corporations, or otherwise, shall
bear interest at the rate of seven per cent, per an-
num, from the time fixed by law for issuing the
same: Provided, that this section shall not apply
to taxes or tax fi. fas. issued by any municipal cor-
poration imposing penalties for failure to pay
taxes to any municipal corporation, on any fi. fas.
due to it for taxes or assessments, having, No-
vember 11th, 1889, a population of sixty thousand
or more, unless the mayor and general council,
mayor and council, or other governing authority
of any such municipal corporation shall, by order,
resolution, or ordinance, provide for the charge
and collection of such interest on such fi. fas. Acts
1890-1, p. 50; 1889, p. 31.
See § 1144, which is identical with part of the above
section.
As to interest on transferred tax fi. fa's., see § 1146.
Editor's Note. — This section was taken from the Acts
of 1889, p. 31. It seems that the proper construction of
this section does not declare that taxes shall bear inter-
est, but that only an execution for taxes shall bear in-
terest. Mr. Justice Cobb (the author of the act) speak-
ing for the court in Georgia Railroad Co. v. Wright, 125
Ga. 589, 610, 54 S. E. 52, says that: "If a taxpayer ten-
ders the amount of taxes due from him before execution
is actually issued no interest on the tax can be lawfully
[186]
§ 879
SALES FOR MUNICIPAL TAXES, ETC.
§ 883
required of him. But whenever the execution is issued no
matter at what time, provided it is issued within the
time authorized by law, it bears interest from the time
it might have been issued in the first instance."
ARTICLE (3.
Sales for Municipal Taxes, and Redemption of
Property Sold.
§ 879. (§ 732.) Time, place, and manner.— The
time, place, and manner of the sale of property,
both real and personal, for taxes due to municipal
corporations in this State, shall be the same as
that provided by law for sheriff's sales for State
and county taxes; provided, such sale may be
conducted by the marshal of the municipality and
had before the door of the council chamber, or the
usual place of meeting of the authorities having
control of said municipality. Acts 1877, p. 125;
1901, p. 23.
For full treatment of tax sales generally, see 10 Cum.
Dig. 843; 12 Enc. Dig. 141.
As to time, place and manner of sheriff's sales, see §
6060. See also for full treatment of sheriff's sales, 10
Cum. Dig. 323, 11 Enc. Dig. 633. As to sale of perishable
property levied on under tax fi. fa., see § 6069.
Editor's Note. — This and the five following sections were
taken from the Acts of 1877, p. 125. By the Acts of 1901,
p. 23, this section was amended by adding the proviso
that the sale may be conducted by the marshall of the
municipality.
Advertisement — Newspaper. — The words "time, place and
manner of sale" do not embrace the newspaper in which
the sale is to be advertised. Consequently this section
does not require that sales for municipal taxes shall be
advertised in the same newspaper in which sheriff's sales
for city and county taxes are advertised. Bacon v. Sa-
vannah, 86 Ga. 301, 12 S. E- 580; Scheurman v. Colum-
bus, 106 Ga. 34, 31 S. E. 787.
Same — In Sunday Paper. — The publication of the adver-
tisement of a marshall's sale for taxes in a newspaper ap-
pearing on Sunday was not legal, and the sale there-
under passed no title. Sawyer v. Cargile, 72 Ga. 290.
Same — Sufficiency. — Under a provision in a city charter
declaring that tax sales shall be advertised for thirty
days, one insertion of the advertisement of such a sale
in each calendar week during the period of thirty days
immediately preceding the day of sale will suffice, pro-
vided the first insertion appeared at least thirty days be-
fore the sale. Montford v. Allen, 111 Ga. 18,' 36 S. E.
305.
Provision for Notice Strictly Construed. — As regards
the effect of a failure properly to advertise, there is a
distinction to be drawn between tax sales had in pursu-
ance of the general law of the state and those had in
pursuance of a provision in a municipal charter. In the
former, the law in reference to notice is merely directory,
and purchasers at such sales, if themselves without fault,
will be protected; whereas a' provision of a city charter
prescribing the time for giving notice of a municipal tax
sale must be strictly complied with, or the sale will be
void even as against an innocent purchaser. Montford
v. Allen. Ill Ga. 18, 36 S. E. 305. For other cases, see 12
Enc. Dig. 144.
Postponement. — Where, under a city charter, it is the
duty of the marshal to collect executions for taxes and
conduct sales thereunder, the city clerk has no author-
ity to postpone a tax sale or grant indulgence to the de-
fendant in the tax execution, the taxpayer would rely on
it at his peril, and such an arrangement woidd not invali-
date the sale, even if made. Montford v. Allen, 111 Ga.
18, 36 S. E. 305.
§ 880. (§ 733.) Redemption. — Whenever any
land is so sold, the owner thereof shall have the
privilege of redeeming said land thus sold, with-
in one year bjr paying the purchaser the amount
paid by said purchaser for said land, with ten per
cent, premium thereon, from the date of the pur-
chase to the time of the payment. Acts 1877, p.
125: 1880-1, p. 48.
See § 1173 and notes thereto.
For full treatment of redemption of lands sold under
tax fi. fa's., see 10 Cum. Dig. 848; 12 Enc. Dig. 153.
As to who may redeem, see § 1169. As to effect of re-
demption, see § 1170.
Our law does not recognize the existence of equitable
grounds as a basis for extending the time prescribed by
this section, within which redemption can be made as
the right of redemption is purely statutory. Montford v.
Allen, 111 Ga. 18, 36 S. E. 305.
For a case involving the sufficiency of the petition for
redemption, see Allen v. Gates, 145 Ga. 652, 89 S. E- 821.
§ 881. (§ 734.) Corporation may purchase,
when. — Whenever at any such sale by a municipal
corporation for taxes due it, by its marshal or
duly authorized officer, no one present shall bid,
for the property put up to be sold, as much as the
tax for which it is proposed to sell the same, and
the officer's cost, if any due thereon, after such
property shall have been cried a reasonable time,
then any duly appointed officer or agent of the
corporation may bid off such property for the
corporation, and the marshal or other officer mak-
ing such sale shall make to the corporation a deed
to the property so sold, and delivered the same
to the officer designated by the corporation to re-
ceive it, and the title acquired by the corporation
at such sale and by such deed shall be perfect,
valid and binding, after the period above provided
for redemption by the owners shall have elapsed
and there is no redemption by the owner, as if
purchased by an individual or corporation other
than such corporation so purchasing, and the
marshal, or other duly authorized officer making
the sale, shall put the corporation, through any
officer or person it may designate, in the posses-
sion of the property so sold. Acts 1877, p. 125.
As to power of Governor to buy property sold under
tax fi. fa's., see § 150.
§ 882. (§] 735.) Property sold by corporation,
how. — Neither the governmental body of any
such municipal corporation, whether known as
mayor and councilmen, mayor and aldermen, or
by any other name, during whose term any such
sale shall take place, nor any subsequently ap-
pointed or elected governing body, shall be capable
of divesting or alienating the title of the corpora-
tion to any property so purchased, excepting by a
public sale of the same to the highest bidder; pro-
vided, that where it is clearly shown to the mayor
and council or other governing body of any muni-
cipal corporation that property, either returned or
unreturned, has been sold and purchased by said
mayor and council or other governmental body cf
any municipal corporation, to protect its taxes
and the cost of collecting the same, and that said
mayor and council, or other governmental body
of such municipal corporation, has not parted
with title to the same, such mayor and council, or
other governmental body in any municipal corpo-
ration shall, by a unanimous vote, be authorized
to quitclaim such property to the owner thereof
at the time of purchase by said mayor and council,
or other governmental body, his administrators,
executors, heirs or assigns, upon payment of all
taxes which may be due and all cost due b}' rea-
son of said sale. Acts 1877, p. 125: 1004, p. 52:
1006, p. 32.
§ 883. (§ 736.) Ordinances to carry this into
effect. — Municipal corporations shall have full
power and authority to pass appropriate ordinances
187 ]
§ 884
POWER OF MUNICIPALITY AND ITS OFFICERS
§ 890
and by-laws to carry these provisions into effect.
Acts 3 877, p. 125.
§ 884. (§ 737.) Does not apply to counties. —
Nothing in the preceding five sections shall be
construed to apply to counties. Acts 1877, p. 125.
§ 8.85. (§ 73i8>> Recitals in tax deed. — Unless
otherwise provided in the charter, the recitals in a
deed under a sale for municipal taxes are not evi-
dence of the facts recited.
See § 5736.
Editor's Note. — This section was derived from Johnson v.
Phillips & Co., 89 Ga. 286, 15 S. E- 368, where it was
held that, in the absence of statutory aid, the recitals in
a tax deed that the preliminaries of a valid sale (such as
notice, advertisement, etc..) were observed, are not evi-
dence of the facts recited.
CHAPTER 3.
Power of Municipality and Its Officers.
ARTICLE 1.
Councilmen Incompetent to Hold Other Office.
§ 886. (§ 739.) Councilmen, when incompetent
to hold other municipal office. — Councilmen and
aldermen of the towns and cities of this State shall
be incompetent to hold, except in towns of less
than two thousand inhabitants, any other municipal
office in said towns and cities during the term of
office for which they were chosen; provided, noth-
ing herein shall render them ineligib'e to be elected
during said term, to serve in a term immediately-
succeeding said term, but nothing in this section
shall apply to any municipal office which is filled
by appointment of the mayor. Any councilman
or alderman appointed during his term to anjr
other municipal office shall resign before being
eligible to enter upon the office to which he has
been appointed. In cities of more than eighty
thousand inhabitants, councilmen and aldermen,
during the term of office for which they were
chosen, are incompetent to hold any office in said
cities which is filled by appointment or election of
the general council or governing board, but are
competent to hold any other office in said cities,
having first resigned the office of councilman or
alderman; provided, nothing herein contained shall
be construed as repealing any provisions to the
contrary hereof in any charter of any city or town
in this State. Acts 1899, p. 26; 1890-1, p. 226;
1895, p. 79; 1902, p. 40.
For ftdl treatment of municipal officers generally, see 9
Cum. Dig. 728; 10 Enc. Dig. 714.
As to countv officers ho'lding more than one office, see
§ 259.
Editor's Note. — This section was taken from the Acts of
1899, p. 26, and amended by Acts of 1890-1, p. 226, 1895, p.
79, 1902, p. 40. It seems that the section is based upon the
well established principle of law that one holding a leg-
islative office should not be elected to an office created,
or offices of which emoluments have been increased dur-
ing such term of office. This section does not expressly
designate the mayor of a city as ineligible to hold two
offices. In Akerman v. Ford, 116 Ga. 473, 42 S. E. 777,
the court said that: "'Councilmen and Aldermen' does
not embrace the mayor of a city." But the office of
mayor is a municipal office for which an alderman or
councilman is ineligible. See the cases cited in the fol-
lowing annotation.
Constitutionality. — This section is not unconstitutional
because by its terms the section is made applicable only
to cities and towns of two thousand inhabitants or more;
but the same is a general act, and as such is applicable
to all towns and cities within the state falling within the
designated class at the time of its passage, or which may
do so thereafter. Crovatt v. Mason, 101 Ga. 246, 28 S.
E- 891.
Term of Office. — An act amending an existing charter,,
which provides that "the mayor and alderman shall hold
their office for two years, or until their successors are
elected and qualified," fixes the terms of such officers at
two years. The term of one of such officers is not re-
duced or changed by his resignation and the election of
his successor before the expiration of two years from the
beginning of such term. Crovatt v. Mason, 101 Ga. 246,
28 S. E. 891.
Where the statute creating the office of recorder pro-
vides: "Nor shall any person acting as recorder of said
court be eligible to any other office in the City of Athens
during the term of his office as recorded," such officer
is ineligible to any other office in such city during the
term for which he has been chosen; and his resignation-
can not affect such inelig-ibilitv. Rowe v. Tuck, 149 Ga.
88, 99 S. E. 303.
Eligibility of Mayor. — Under a city charter the mayor
of a municipality cotdd act not only as mayor, and re-
ceive the salary therefor, but could also be elected treas-
urer of the Board of Lights and Waterworks, of which
he was ex officio a member, and receive the compensation:
fixed by the board for his services. There is no inhibi-
tion against one person holding both positions, and re-
ceiving both salaries, when authorized by the charter.
Board v. Dobbs, 151 Ga. 53, 105 S. E- 611. See editor's
note above.
A mayor of a city is eligible to hold the office of School
Commissioner. Akerman v. Ford, 116 Ga. 473, 42 S. E-
777.
The office of mayor of a city or town having more than
two thousand inhabitants is a municipal office within the
meaning of this section. Crovatt v. Mason, 101 Ga. 246,
28 S. E- 891.
ARTICLE 2.
Cities as Trustees.
§ 887. (§ 740.) Incorporated towns and cities
may accept gifts. — All incorporated towns and
cities in this State are authorized to receive any
donations or gifts of real or personal property
which may be made to them by deed of gift, will,,
or otherwise, and subject to such conditions as
may be specified in the instrument giving or do-
nating the property, if the governing body of such
town or city approves of such conditions. Acts
1892, p. 104.
§ 888. (§ 741.) May act as trustees.— The in-
corporated towns and cities in this State shall be
authorized to act as trustees under any convey-
ance or will donating or giving property for
charitable or eleemosynary purposes.
For case before the statute, see 9 Enc. Dig. 497.
§ 889. (§ 742.) Towns trustees of cemeteries. —
Any person may convey to the mayor and citv
council of any town or city in this State any
money or property to be held by such mayor and
council in trust, the corpus or increase thereof to
be expended as directed by such conveyance, in
the improvement or preservation and care of any
cemeter}^ or of the burial lots of such owner there-
in, and such mayor and council shall receive and
hold such property and execute such trusts, ac-
cording to the terms thereof, as other trusts are
executed under the laws of this State, and shall by
its clerk make annual returns to the ordinary, and
shall be entitled to such commissions as are paid
to other trustees, but shall not be required to give
bond. Acts 1889, p. 178.
For full treatment of cemeteries generally, see 3 Cum.
Dig. 407; 3 Enc. Dig. 1.
§ 890. Gifts for public parks or pleasure
[ 188
§ 891
LIMITATION ON POWERS OF CITY AND ITS OFFICERS
§ 894
grounds. — Any person may, by appropriate con-
veyance, devise, give, or grant to any municipal
corporation of this State, in fee simple or in trust,
or to other persons as trustees, lands by said con-
veyance dedicated in perpetuity to the public use
as a park, pleasure-ground, or for other public pur-
pose, and in said conveyance, by appropriate limi-
tations and conditions, provide that the use of
said park, pleasure-ground, or other property so
conveyed to said municipality shall be limited 'to
the white race only, or to white women and chil-
dren only, or to the colored race only, or to colored
women and children only, or to any other race, or
to the women and children of any other race only,
that may be designated by said devisor or grantor;
and any person may also, by such conveyance, de-
vise, give, or grant in perpetuity to such corpora-
tions or persons other property, real or personal,
for the development, improvement, and mainte-
nance of said property. Acts 1905, p. 117.
§ 891. Municipality may accept. — Any municipal
corporation, or other persons natural or artificial,
as trustees, to whom such devise, gift, or grant is
made, may accept the. same in behalf of and for
the benefit of the class of persons named in the
conveyance, and for their exclusive use and enjoy-
ment; with the right to the municipality or trus-
tees to improve, embellish, and ornament the land
so granted as a public park, or for other public
use as herein specified, and every municipal cor-
poration to which such conveyance shall be made
lias power, by appropriate police provision, to pro-
tect the class of persons for whose benefit the de-
vise or grant is made, in the exclusive use and en-
iovment thereof.
ARTICLE 3.
Limitation on Powers of City and Its Officers.
For full treatment, see 8 Cum. Dig. 726; 9 Enc. Dig.
490.
§ 892. (§ 743.) Can not restrict subsequent
council. — One council can not by an ordinance
1}ind itself or its successors so as to prevent free
legislation in matters of municipal government.
Editor's Note. — This section was based on the holding in
Williams v. West Point (68 Ga. 816). The purpose of the
section is to prevent one council from passing ordinances
which would legally bind the city and so tie the hands of
it's successors in office as to result in great injury to the
municipality. And if this can not be done by an ordi-
nance a fortiori it can not be done by contract.
Power to Contract for Future. — All legislative bodies are
limited in their legal capacity in such a manner as not
to deprive succeeding bodies of the right to deal with
matters involving the same questions as they may arise
from time to time in the future, and as the then present
exigencies may require. But a municipal corporation may
make a valid contract to continue for a reasonable time
beyond the official term of the officers entering into the
contract for the municipality. Horkan v. Moultrie, 136
Ga. 561, 562, 71 S. F. 785.
"Powers are conferred upon municipal corporations for
public purposes, and as their legislative powers can not
be delegated, so they can not be bargained or bartered
away. Such corporations may make authorized contracts,
but they have no power, as a party, to make contracts or
pass by-laws which shall cede away, control, or embarrass
their legislative or governmental powers, or which shall
disable them from performing their public duties." Hor-
kan v. Moultrie. 136 Ga. 561, 563, 71 S. E- 785.
§ 893. (§ 744.) Not liable for acts of public
officers. — A municipal corporation is not liable
for the torts of policemen or their officers en-
gaged in the discharge of the duties imposed on
them by law.
See 8 Cum. Dig. 734 et seq.; 9 Fnc. Dig. 501 et seq.
As to personal liability of guard as whipping boss for
injuries to convicts, see § 861.
Editor's Note. — This section was codified from Cook v.
Macon, 54 Ga. 468, and Wilson v. Macon, 88 Ga. 455, 14
S. F- 710. The section does not refer to all officers of a
municipal corporation. Otherwise it would be in conflict
with § 897, making municipal corporations liable for im-
proper or unskillful performance of ministerial duties, since
a city can only perform ministerial functions through some
officer or agent. The distinction between governmental and
ministerial functions must be observed.
Notice of Powers Implied. — Tn dealing with public agents,
every person must take notice of the extent of their power
at his peril. Laing v. Americus, 86 Ga. 756, 758, 13 S. F-
107.
Acts of Mayor. — A city is not liable in damages because
its mayor required of a person charged with a violation of
a city ordinance a larger bond for his appearance than the
law authorized, even if the failure of such person to give
bond and his consequent confinement were occasioned
thereby. Gray v. Griffin, 111 Ga. 361, 36 S. F. 792.
Acts of Police Officers — Illustrations. — Where a policeman
was acting as an officer of the city at the time of a homi-
cide, the city would not be liable; for the reason that the
policeman was in the discharge of a governmental func-
tion, and in such case recovery can not be had against the
city. Pounds v. Central, etc.. R. Co., 142 Ga. 415, 416, 83
S. F. 96.
In erecting and maintaining a city prison a municipal
corporation is exercising a purely governmental function.
and is, therefore, not liable in damages to a person ar-
rested and imprisoned therein by its police officers, for in-
juries sustained by him, while so confined, by reason of the
improper construction or negligent maintenance of such
prison. Gray v. Griffin, 111 Ga. 361, 36 S. F. 792.
A municipal corporation is not liable for the illegal ar-
rest of a person by its police officers. Gray v. Griffin, 111
Ga. 361, 36 S. F- 792; Cook v. Macon, 54 Ga. 468. For other
cases, see 9 Fnc. Dig. 507.
"A municipal corporation is not liable for personal in-
juries sustained by one prisoner at the hands of another,
confined in the same cell notwithstanding the police officer
may have been guilty of wrong or negligence in confining
him with an intoxicated fellow-prisoner who was on that
account violent and dangerous." Wilson v. Macon, 88
Ga. 455, 14 S. E. 710, citing principal case.
As to the liability of a railroad company for the wrong-
ful killing by a police officer of a municipality, even if such
officer was paid by the railroad company, see Pounds v.
Central, etc., R. Co., 142 Ga. 415, 83 S. E- 96.
Even though sentence imposed by a recorder might have
been wholly void the city would not be liable for the tor-
tious and illegal acts of a warden. Davis v. Rome, 23 Ga.
App. 188, 98 S. E. 231.
Even if the cutting of a hole and the leaving of it in an
exposed condition was negligence on the part of the fire-
men, the city was not liable in damages to a person in-
jured in consequence of the negligence. Rogers v. Atlanta,
143 Ga. 153, 84 S. E. 555.
City Can Not Ratify. — A municipality can not ratify the
unlawful acts of its subordinate officials done in the pur-
suance of its governmental functions. Davis v. Rome,
23 Ga. App. 188, 98 S. E. 231.
§ 894. (§ 745.) Obstructions in street— With-
out express legislative authority, a municipality
can not grant to any person the right to erect or
maintain a structure or obstruction in a public
street.
See § 898 and note thereto.
For full treatment of the use of streets, see 10 Cum. Dig.
610; 11 Enc. Dig. 930.
As to removal of obstructions from streets, see 10 Cum.
Dig. 612.
Editor's Note. — This section is based on Laing v. Amer-
icus, 86 Ga. 756, 13 S. E. 107. The purpose was to insure
full and free use of the streets, and to prevent the use of
the same for private purposes and pecuniary gain. The
gravamen of the objection is that any obstruction of free
use becomes a nuisance as an encroachment upon the pub-
lic right. It has been held in some old English cases that
a fair in a highway is permissible, but on examination c>i
those cases we find that the ruling of each was based upon
the existence of an immemorial custom, and in the case
of Augusta v. Reynolds. 122 Ga. 754. 50 S. E. 99S, a fair
in a public street was held to be a nuisance. To abate a
[189]
895
LIMITATION ON POWERS OF CITY AND ITS OFFICERS
§ 897
nuisance elsewhere than in the public streets a prelimi-
nary hearing would generally be necessary; but it seems
that to clear the streets of a palpable obstruction no such
hearing is required as there is a lack of any legal right.
Streets are primarily intended for the use of travelers;
and a municipal corporation has no power, in. the absence
of express legislative authority to allow a street to be used
for any other purpose. Augusta v. Reynolds, 122 Ga. 754,
50 S. E. 998.
Permanent Structures.— "A municipal ■ corporation has no
power, in the absence of express legislative authority, to
authorize the erection of permanent structures in a pub-
lic street, which interfere with the free use of such street
by the public. Savannah, etc., R. Co. v. Woodruff, 86 Ga.
94, 13 S. E- 156; Eaing v. Americus, 86 Ga. 756, 13 S. E-
107; Augusta v. Jackson, 20 Ga. App. 710, 93 S. E. 304;
Savannah v. Markowitz, 155 Ga. 870, 118 S. E- 558. For
other cases, see 10 Cum. Dig. 611.
"Permanent structures which do not interfere with travel
and which are erected for public purposes, such as tele-
graph and telephone poles, and the like, are permissible.
But no permanent structure of any character which inter-
feres in the slightest degree with the right of travel upon
the street is ever permissible where such structure is
erected for purely private purposes." Augusta v. Reynolds,
122 Ga. 754, 756, 50 S. E. 998.
Temporary Obstructions. — Temporary obstructions in a
street are permissible under certain circumstances, even
where the obstruction is for the benefit or convenience of
an individual. The general rule is that if the purpose for
which the obstruction is created is lawful, and the ob-
struction exists only for such a time as is reasonably nec-
essary to accomplish the purpose which brings about the
necessity for the obstruction, such an obstruction would
not be a public nuisance. Augusta v. Reynolds, 122 Ga.
754, 757, 50 S. E. 998.
Same— Constructing Bridges. — A city may, in the proper
exercise of its discretion, and as a movement in the di-
rection of public improvement, build a bridge in one of its
streets, and, incidentally, close the street during the rea-
sonable duration of the work. In like manner, the munic
ipal authorities may authorize a railroad company to build
the bridge for the benefit of the city, giving it power to
close the street for a reasonable time while the work is
being done. Adair v. Atlanta, 124 Ga. 288, 52 S. E. 739.
Same — Presumption. — Any temporary obstruction in a
public street is presumptively a public nuisance, and it is
incumbent upon the persons responsible for the presence of
such obstruction to show that it was placed in the street
in furtherance of a lawful and legitimate purpose, and has
not been continued any longer than was reasonably nec-
essary for the accomplishment of this purpose." Augusta
v. Reynolds, 122 Ga. 754, 757, 50 S. E. 998.
Expenses Incurred. — It is no reason for not removing the
obstructions from a street that the plaintiff has incurred
expense in erecting and maintaining it. And no lapse of
time will render the license irrevocable. Savannah v.
Markowitz, 155 Ga. 870, 118 S. E- 558; Eaing v. Americus,
86 Ga. 756, 13 S. E. 107.
§ 895. (§ 746i.) Equity will not interfere with
discretion of council. — The council or other gov-
erning body of a municipality has a discretion in
the management and disposition of its property,
and where it is exercised in good faith, a court of
equity will not interfere therewith.
As to when injunction will lie to restrain acts of mu-
nicipal corporations, see 7 Cum. Dig. 289.
This section was codified from the cases of Semmes v.
Columbus, 19 Ga. 471, and Mayor, etc., of Athens v. Camak,
75 Ga. 429. It seems that the section was designed to pre-
vent judicial interference with the incidental acts of gov-
ernmental control within the sound discretion of the coun-
cil or governing body. — Ed. Note.
A court of equity will not interfere with the discretion-
ary action of the governing officers of a city within the
sphere of their legally delegated powers, unless such ac-
tion is arbitrary, and amounts to an abuse of discretion.
Gainesville v. Dunlap. 147 Ga. 344, 94 S. E. 247; McMaster
v. Waynesboro, 122 Ga. 231, 50 S. E. 122.
The governing body of a city is not answerable for an
erroneous exercise of its discretion, although injurious con-
sequences may result therefrom. Semmes v. Columbus, 19
Ga. 471; Mayor, etc., of Athens v. Camak, 75 Ga. 429, 433.
§ 896. (§ 747.) Municipal corporations not lia-
ble for discretionary acts. — Where municipal cor-
porations are not liable by statute to perform an
[ 190 ]
act, they can not be held liable for exercising their
discretion in failing to perform the same.
See § 895 and note thereto.
For cases involving acts held to be discretionary, see
8 Cum. Dig. 734; 9 Enc. Dig. 501.
A municipal corporation can not be held liable for fail-
ure to perform a duty when the duty of performance has
not been imposed upon it by law, on which it has no power
to perform, for lack of authority to raise revenue for that
purpose. Montezuma v. Law, 1 Ga. App. 579, 57 S, E-
1025.
§ 897. (§ 748.) Municipal corporations liable
for what. — Municipal corporations are not liable
for failure to perform, or for errors in performing,
their legislative or judicial powers. For neglect to
perform, or for improper or unskillful performance
of their ministerial duties, they are liable.
See §§ 893, 898 and notes thereto.
For full treatment of liabilities of municipal corporations,
see 8 Cum. Dig. 734; 9 Enc. Dig. 501. As to notice re-
quired before suit, see § 910.
Editor's Note. — This section is a codification of principles
of the common law as laid down in Collins v. Macon, 69
Ga. 542; Rivers v. Augusta, 65 Ga. 376, and was incor-
porated in the Code of 1895. Between the municipality and
the public the question of liability depends upon whether
at the time of the injury the municipality was engaged
in governmental or ministerial duty. This question has
been settled as far as this state is concerned and the
only difficulty is in applying the rulings madlT to a par-
ticular case. In Savannah v. Jordon, 142 Ga. 409, 83 S.
E- 109, a clear distinction between the governmental and
ministerial functions is drawn. This section does not
imply liability for the breach of every duty that does not
involve exercise of legislative and judicial powers, but
only for unskillful and improper performance of a min-
isterial duty. As the law is settled as to the nature of
the liability the cases here cited are to distinguish be-
tween judicial, legislative and ministerial acts of munici-
pal corporations.
General Rule. — "Where an act is done by the officers
and agents of a municipal corporation, which is within
the corporate power and might have been lawfully ac-
complished had the municipal authorities proceeded ac-
cording to law, the corporation will be liable for the con-
sequences of an act of such officers or agents proceed-
ing contrary to law or in an irregular manner. Aliter,
where the act complained of lies wholly outside of the
general or special powers of the corporation." McDonald
v. Butler, 10 Ga. App. 485, 847, 74 S. E. 573; Eangley v.
Augusta, 118 Ga. 590, 45 S. E. 486. For other cases, see
8 Cum. Dig. 737.
This whole section should be construed together in con-
nection with its cognate sections, and as intending to de-
clare that municipal liability should attach only for neg-
lect to perform, or for improper or unskillful perform-
ance of "ministerial duties." This construction would
leave intact the common-law doctrine, frequently applied
in this State before and since the adoption of the code,
of non-liability for conduct of officers, agents, and serv-
ants of municipal corporations in respect to duties de-
volving upon them by virtue of the sovereign or govern-
mental functions of the municipality. This doctrine has
been applied in Eove v. Atlanta, 95 Ga. 129, 22 S. E- 29, a
case based on negligence of the driver of a garbage cart
in the employment of the board of health; Watson v. At-
lanta, 136 Ga. 370, 71 S. E- 664, a case based on negli-
gence of the driver of an ambulance for a city hospital;
Rogers v. Atlanta, 143 Ga. 153, 84 S. E. 555, a case based
on negligence of a fireman in cutting a hole in a floor
while engaged in extinguishing a fire and into which the
plaintiff stepped. In those instances the duty was purely
of a public nature, intended for the benefit of. the public
at large, without any pretense of private gain to the mu-
nicipality; and because it was such,, no liability would
attach, as a general rule. Cornelisen v. Atlanta, 146 Ga.
416, 91 S. E. 415; Harrison Co. v. Atlanta, 26 Ga. App.
727, 731, 107 S. E. 83.
Abatement of Nuisances. — As a general rule, the duty
imposed upon municipalities to abate nuisances existing
upon private property within its limits is a duty which is
judicial in its nature, and that for a failure to perform this
duty, or for errors in the performance of it, the munic-
ipality is not liable in damages. Mayor v. Wilson, 118
Ga. 100, 103, 44 S. E. 830. But where the nuisance is in
or near a public street, the municipality is liable to one who?
suffers special damage from the failure of the city to abate
§ 897
LIMITATION ON POWERS OF CITY AND ITS OFFICERS
§ 898
such nuisance. Mayor v. Wilson, 118 Ga. 100, 103, 44 S.
E- 830; Parker v. Macon, 39 Ga. 725.
Drains and Sewers— Location.— The duties of municipal
authorities in adopting a general plan of drainage, and in
determining when, where and of what size and at what
level drains or sewers shall be built, are of a quasi-judi-
cial nature, involving the exercise of deliberate judgment
and wide discretion; and the municipality is not liable for
an error of judgment on the part of the authorities in
locating or planning such improvements. Harrison Co.
v. Atlanta, 26 Ga. App. 727, 107 S. F- 83; Atlanta v. Trus-
sell, 21 Ga. App. 340, 94 S. E. 649. See 5 Cum. Dig. 26,
4 Enc. Dig. 698.
Same — Construction.— But after the adoption of a plan
of sewerage or drainage by a city, the manner in which
such plan is executed becomes, so far as the rights of the
citizen may be affected, a mere ministerial duty, and for
any negligence in the execution, construction or mainte-
nance of the work, whereby injury is inflicted upon a pri-
vate right, the municipality will be responsible. Atlanta
v. Trussell, 21 Ga. App. 340, 344, 94 S. E. 649; Savannah
v. Spears, 66 Ga. 304; Smith v. Atlanta, 75 Ga. 110, 112.
And the municipality is bound by the same rule of dili-
gence in providing a safe place for employees to work
which applies to a private contractor. Atlanta v. Trus-
sell, 21 Ga. 340, 348, 94 S. E- 649.
For full treatment of city drains and sewers and lia-
bility incidental to construction and maintenance, see 5
Cum. Dig. 26, 4 Enc. Dig. 698.
Where a city maintained a market house it is under a
duty to keep it in a safe condition, it being property of
the city and used for its revenues its duty is ministerial
and the city is liable for injuries sustained by the plaintiff
by stepping through a hole in the floor. Savannah v.
Cullens, 38 Ga. 334. This same principle was applied in Au-
gusta v. Mackey, 113 Ga. 64, 38 S. F- 339, involving the
neglect of duty of an officer of a city in maintaining city
waterworks and in Sedlmeyr v. Fitzgerald, 140 Ga. 614,
79 S. E- 469, involving failure of duty of officer in main-
taining electric -light wires and plant of the city. — Fd. Note.
Injuries to Firemen. — Where a municipal corporation main-
tains a firehouse and on the second floor of the building
maintains sleeping quarters for attending firemen and where
it maintains in the building a pole extending from the
firemen's quarters to the first floor which is used in re-
sponding to fire alarms, the municipality is engaged in the
exercise of a governmental power in maintaining such
pole and the floor on which it rests, and is not liable in
damages to a fireman for injuries while using the pole
for the purpose for which it was intended, on account of
negligence in the maintenance of the pole and floor. Mil-
ler v. Macon, 152 Ga. 648, 110 S. F. 873.
Trespass of Officers. — A municipal corporation is not lia-
ble in damages for a trespass committed by its officers
in wrongfully disinterring and removing the remains of a
person buried in a cemetery owned and controlled by the
city, unless the act was performed in pursuance ot and to
effectuate some corporate power conferred by the munici-
pal charter. McDonald v. Butler, 10 Ga. . App. 845, 74
S. F- 573.
Parks.— Where a city maintains a park primarily for the
use of the public, intended as a place of resort for pleas-
ure and promotion of health of the public at large, its op-
eration is by virtue of the governmental powers of the
municipality, and no municipal liability would attach to
the non-performance or improper performance of the du-
ties of the officers, agents, or servants of the city in re-
spect to keeping the park safe for use by members of the
general public. Cornelisen v. Atlanta, 146 Ga. 416, 91 S.
F. 415.
But if the city, having charter authority, maintains a
park primarily as a source of revenue, the duty of main-
taining it in a safe condition for the use for which it is
intended would be ministerial, and municipal liability would
attach for breach of such duty. Cornelisen v. Atlanta, 146
Ga. 416, 91 S. F. 415.
Waste-Paper Box. — The maintenance, by a municipality,
of a large waste-paper wooden box as a receptacle for trash
and waste -paper, and the removal of its contents is an act
by a municipality in the performance of its governmental
functions. Mayor v. Jones, 149 Ga. 139, 99 S. E- 294.
Acts of Mayor. — A municipal corporation is not liable for
the act of the mayor in requiring the plaintiff to give a
larger bond than the law authorized. In fixing the amount
of the bond, the mayor acted in a judicial capacity, and
for an error committed in the exercise of judicial authority
a municipal corporation is not liable. Gray v. Griffin, 111
Ga. 361, 368, 36 S. E. 792. See § 893 and note.
Stone Quarry. — The operation by the city of a stone
quarry which it owns is purely ministerial. Augusta v.
Owens, 111 Ga. 464, 477, 36 S. E. 830.
A wall abutting on or nearby a public street may b<!
torn down by the municipality if it is dangerous to the pub-
lic. But if this be done summarily, it is at the peril of the
city. If it is not in fact dangerous, the city will be liable.
McWilliains v. Rome, 142 Ga. 848, 849, 83 S. F. 945, and
cases cited.
Construction of Streets.— "The power granted by charter
to a municipal corporation to raise or alter the grades of
streets involves a legislative act. After this has taken
place, the mere construction of the work is ministerial."
Augusta v. Owens, 111 Ga. 464, 36 S. E- 830; Fuller v. At-
lanta, 66 Ga. 80. See § 898 and note thereto.
§ 898. (§ 749.) Municipal corporations liable
for injuries, when. — If a municipal corporation has
not been negligent jn constructing or repairing the
same, it is not liable for injuries resulting from
defects in its streets when it has no notice there-
of, unless such defect bas existed for a sufficient
length of time for notice to be inferred.
See § 894 and note thereto.
For full and comprehensive treatment of municipal con-
trol over its streets, see 10 Cum. Dig. 610; 11 Fnc. Dig.
930.
As to necessity of notice and demand as prerequisite to
suit for injuries, see § 910.
Editor's Note. — This section is based on the case of Mon-
tezuma v. Wilson, 82 Ga. 20^69 S. E- 17, which follows the
common law in exempting municipalities from the exercise
of legislative or judicial powers. The annotations under
this section cover injuries occurring on the street or by de-
fective construction of the streets. There seems to be
some ambiguity in the catchline of this section in as much
as it seems to imply all instances in which a municipal
corporation is liable for injuries, but as will be readily seen
the section applies to streets only. For liability generally,
see § 897 and note thereto.
General Rule. — The general rule of law is that a munic-
ipal corporation is bound to keep its streets and sidewalks
in a reasonably safe condition for travel in the ordinary
modes, by night as well as by day; and if it fail to do
so, it is liable for damages for injuries sustained in con-
seqitence of such failure. Brown v. Milledgeville, 20 Ga.
App. 392, 93 S. E- 25; Herrington v. Macon, 125 Ga. 58, 54
S. E- 71. For other cases, see 10 Cum. Dig. 618. 11 Enc.
Dig. 936.
And this duty applies to any person lawfully upon a side-
walk, using it for any purpose for which sidewalks are
designed. Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318.
Repair or Improvement of Streets. — Where municipal au-
thorities undertake the repair or improvement of a pub-
lic street, they are bound to take such precautionary meas-
ures for the protection of persons having a right to the use
of the street as ordinary care and diligence would require.
Holliday v. Athens, 10 Ga. App. 709, 74 S. E. 67.
All of Sidewalk. — The duty of a city in reference to using
ordinary diligence to keep a sidewalk reasonably safe for
public use extends to all of the sidewalk intended for travel
by the public as a thoroughfare, and is not confined to
keeping in a safe condition a special part only of the side-
walk which happens to be most generally used. Atlanta v.
Hampton, 139 Ga. 389, 77 S. E. 393; Atlanta v. Milan, 95
Ga. 135, 22 S. E. 43. For other cases, see 10 Cum. Dig. 619;
11 Enc. Dig. 937.
Duty to Light Streets. — In the absence of statute a city
is under no obligation to light its streets. But if streets are
allowed to remain out of repair the absence of lights and
safeguards of any character . will be considered, along with
all other evidence, in determining whether the city failed
to keep the streets in a reasonably safe condition for pas-
sage. Greensboro v. Robinson, 19 Ga. App. 199, 91 S. E.
244; Williams v. Washington, 142 Ga. 281, 82 S. F- 656.
Negligence Essential to Recovery. — Municipalities are lia-
ble for injuries resulting from negligence in the mainte-
nance of streets and highways. Huey v. Atlanta, 8 Ga.
App. 597, 599, 70 S. E. 71.
Even if the plaintiff was entirely without fault he would
not be entitled to recover unless his injuries were caused
by, or attributable to, negligence on the part of the de-
fendant. Columbus v. Ogletree, 96 Ga. 177, 22 S. E. 709.
For other cases, see 11 Enc. Dig. 939.
Same — Latent Defects in Sidewalk. — A municipal corpo-
ration is not liable for injuries occasioned by defects in one
of its sidewalks, when such defects were not brought about
by its negligence, and were latent defects which could not
have been discovered by the use of ordinary care and dil-
igence. Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318.
Same — Injuries Attributed to Accident. — If both the city
and the traveler are free from fault, the injury will be at-
[191]
§ 898
LIMITATION ON POWERS OF CITY AND ITS OFFICERS
§ 900
tributed to accident, and no recovery can be had. Holli-
day v. Athens, 10 Ga. App. 709, 74 S. F. 67; Columbus v.
Anglin, 120 Ga. 785, 48 S. F. 318.
Same — Defects Caused by Another. — If city authorities by
its permission suffer an act to be done by another in such
a manner as to render it a public nuisance or dangerous
to the public whereby injury is caused, the city is liable
for the consequence just as it would be if the city had
done the improper work itself. Bentley v. Atlanta, 92 Ga.
623, 18 S. F. 1013. For other cases, see 11 Fnc Dig. 938.
Same — Question of Fact. — In an action to recover for in-
juries received by reason of a person getting his foot caught
in a plank crossing, the question of negligence of the au-
thorities in leaving the crossing in such condition is one
for the jury- Dempsey v. Rome, 94 Ga. 420, 20 S. F. 335.
For other cases, see 11 Fnc. Dig. 940.
Same — Proximate Cause. — In order to render a municipal
corporation liable for injuries received through defects in
a street, its negligence must have been the proximate
cause of the injuries. Macon v. Dykes, 103 Ga. 847, 31 S.
E. 443. See also Gaskins v. Atlanta, 73 Ga. 746; Rome v.
Cheney, 114 Ga. 194, 39 S. F. 933.
But the defect need not have been the sole cause of the
injury, if besides the defect, there was another cause, not
attributable to the negligence of the injured person, and
which contributed directly but concurrently to causing the
injury, the corporation might still be liable, provided the
injury would not have been sustained but for the defect
in the highway. In such case the concurrent acts of neg-
ligence of both wrongdoers, and not the separate act of
either one, would constitute the proximate cause of the
injury. Barrett v. Savannah, 9 Ga. App. 642, 72 S. F- 49.
Permission of City. — Where it is shown that a city, un-
dertook without authority of law to grant the right to
maintain a nuisance therein, it is not necessary to show
that the city had notice of the condition of the street dur-
ing any of the time that the nuisance was in operation,
but such condition will be held to have been brought about
by the city itself, and the city is therefore charged with
knowledge of the exact condition thus produced. Augusta
v. Jackson, 20 Ga. App. 710, 93 S. F- 304. For other cases,
see 10 Cum. Dig. 622. This same principle is applied to
excavations made with the permission or by command of
the city, in Rome v. Davis, 9 Ga. App. 62, 70 S. F- 594.
Annexed Territory. — As to defects existing in the high-
way at the time of its annexation to a city, the city does
not become chargeable with liability until it has discov-
ered them, or, in the exercise of ordinary and reasonable
diligence, should have discovered them, and until it has
then had a reasonable opportunity to remedy them. Ma-
con v. Morris, 10 Ga. App. 298, 73 S. F- 539; Rome v. Da-
vis, 9 Ga. App. 62, 64, 70 S. F- 594.
Notice — Presumption of. — If the municipality, in the ex-
ercise of reasonable diligence in the performance of its du-
ties, has the means of knowledge of defects in its side-
walk, occasioned by others, and negligently remains igno-
rant thereof, the municipality is constructively charged
with knowledge thereof, and can not escape liability upon
the ground that it did not have actual notice of such de-
fect. Brown v. Milledgeville, 20 Ga. App. 392, 93 b. F. 25;
Idlett v. Atlanta, 123 Ga. 821, 51 S. F- 709. For other cases,
see 11 Fnc. Dig. 942.
If the defect has existed for only a short time, as for a
night or for a day, so that the city can not reasonably be
presumed to have had any knowledge of it, then notice of the
defect to the city should be shown in order to make it lia-
ble. Atlanta v. Perdue, 53 Ga. 607; Chapman v. Macon,
55 Ga. 566. For other cases, see 11 Fnc. Dig. 934.
As to implied notice through permission of city, see ante,
this note, catchline "Permission of City."
Same — Necessity for.— A municipal corporation can not be
held liable for damages occurring by reason of a defect
in its streets, sidewalks, sewers or bridges, when it has
no notice thereof, or when such defect has not existed for
sufficient length of time from which notice can be in-
ferred, provided the corporation has been guilty of no
negligence in constructing or repairing the same. Monte-
zuma v. Wilson, 82 Ga. 206, 9 S. F- 17. For other cases,
see 11 Fnc. Dig. 941.
Same — Question of Fact. — It is a jury question as to
what length of time a defect in a street must exist, to
charge a municipality with knowledge of negligence. Fn-
right v. Atlanta, 78 Ga. 288, 289; Rome v. Brooks, 7 Ga.
App. 244, 66 S. F. 627.
Same — Pleading. — In a suit to recover damages from a
municipal corporation for an alleged injury resulting from
a defective construction of a street, it is not necessary to
allege either actual or constructive notice of such de-
fective construction. Montezuma v. Wilson, 82 Ga. 206,
9 S. F. 17; Whidden v. Thomasville, 10 Ga. App. 194, 73
S. F. 45.
Same — Notice through Officials. — Ordinarily policemen are
not charged with the duty of inspecting streets and are
not channels for the communication of implied notice of
defects to the city. But the city may place such a duty
upon them by ordinances, rules or instructions, and, in
that event notice and negligence may be implied through
them. A like rule applies to employees of the sanitary
department. Macon v. Morris, 10 Ga. 298, 73 S. F- 539.
An ordinance making it the duty of policemen to report
defects to the lieutenants of police necessarily requires
the lieutenants to report to the person whose duty it is
to remedy the defects. Therefore, notice to a policeman
or lieutenant is notice to the citv. Columbus v. Ogletree,
102 Ga. 293, 29 S. F- 749.
Financial Disability as Defense. — Upon a trial of an ac-
tion against a municipal corporation for damages result-
ing from a failure to keep one of its streets in repair, evi-
dence of a want of means with which to keep the same
in repair without detriment to more important streets was
irrelevant. Milledgeville v. Cooley, 55 Ga. 17.
Sufficiency of Declaration. — For cases involving the suf-
ficiency of the declaration in setting forth a cause of ac-
tion against a city for injuries occasioned by defective
streets, see Boney v. Dublin, 145 Ga. 339, 89 S. F- 197;
Rome v. Suddeth, 116 Ga. 649, 42 S. F. 1032; Brown v.
Milledgeville, 20 Ga. App. 392, 93 S. F- 25. For other cases,
see 10 Cum. Dig. 632.
§ 899. (§ 750.) Municipal property not subject
to levy. — Property of a municipal corporation in
use for the public, or held for future use for the
public, is not subject to levy and sale under exe-
cutions. All property held by a municipality is
presumptively for public use.
For constitutional provision exempting public property
from taxation, see § 6554.
Editor's Note. — This section is a codification of the prin-
ciples as laid down in Curry v. Savannah, 64 Ga. 291. As a
municipal corporation is a sub-division of the State, the
basis of the exemption is founded upon the theory that the
property of the municipal corporation is property of the
State.
A town school-house is not subject to levy and sale- by
virtue of judgment and execution against the town, re-
gardless of whether run as a free school, or rented to pri-
vate teachers, who charge tuition; and consequently, if the
house be destroyed by fire, the insurance therefor can not
be reached by garnishment by the judgment creditor.
Fleishel v. Hightower, 62 Ga. 324. See also Walden v.
Whigham, 120 Ga. 646, 48 S. F- 159.
All property of every kind held by the municipality is
presumptively for the public use, and whilst perhaps the
presumption may be overcome on proof of a holding for
other purposes, as a mere investment to reap profits and
save taxes, and with no idterior purpose to apply the in-
vestment to the use or enjoyment of the public thereafter,
yet the onus would be upon the plaintiff in execution to
make that proof. Curry v. Savannah, 64 Ga. 291.
§ 900. (§ 751.) Voting when personally in-
terested.— It is improper and illegal for a mem-
ber of a city council to vote upon any question,
brought before the council, in which he is per-
sonally interested.
Editor's Note. — This section is a codification of the prin-
ciples as laid down in Daly v. Georgia So., etc., R. Co.,
80 Ga. 793, 7 S. F- 146. The section is based upon the well
established principles that one holding a fiduciary position
can not make profits for himself and that an agent can not
buy and sell for himself.
Effect on Contract. — A contract entered into between a
private corporation and a city, under which the former is
to perform certain work for which payment is to be made
out of the city treasury, is void if at the time of its exe-
cution one of the members of the city council was also a
stockholder in such private corporation and such a contract
does not become valid and legal when, subsequently, the
interested member of council sells the stock which he owned
at the time of the execution of the contract. Hardy v.
Gainesville, 121 Ga. 327, 48 S. F. 921.
Appointment of Depository. — But an ordinance naming a
certain bank as the city depository and requiring the treas-
urer of the city to place all the municipal funds coming
into his hands therein is not necessarily void because the
mayor of the city and one of the councilmen voting to adopt
the ordinance were respectively officer and director of the
bank named as depository. Smith v. Winder, 22 Ga. App.
278, 96 S. F. 14.
[ 192 ]
901
DISPOSITION OF PUBLIC UTILITY PROPERTIES
§ 904(2)
§ 901. (§ 752.) Officers, when personally liable.
-Members of the council and other officers of a
nmicipal corporation are personally liable to one
rho sustains special damages as the result of any
fficial acts of such officer, if done oppressively,
laliciously, corruptly, or without authority of law.
Editor's Note. — This section was codified from Pruden v.
me (67 Ga. 190), and should be construed, as all other
ctions codified from decisions, in the light of the source
am which it came, unless the language of the section im-
ratively requires a different construction.
Abatement of Nuisance. — Where the council of a mu-
cipal corporation, in the exercise of their police powers,
id after due notice, declare a building to be a nuisance,
id require it to be torn down, they would not be liable
individuals to the owner for damages, unless they acted
aliciously, oppressively, corruptly, or without authority
law. Pruden v. L,ove, 67 Ga. 190.
Councilman Presiding in Police Court. — This section has
i application to acts of a member of a town council when
is presiding in a police court. Calhoun v. Little, 106
i. 336. 32 S. E. 86.
ARTICLE 4
Streets Neglected; Duty of Justice.
§ 902. (§ 753.) Streets neglected for three
lonths, justices to act, etc. — When the main
reets of an incorporated town or city continue
: a state of neglect for three months, the justices
: the peace therein are, by virtue of their office,
>ad commissioners and shall appoint overseers,
^portion the hands that would be liable to road
ity throughout the town, have the streets worked
i as though they were public roads, and must in
rery other respect perform the duties of road
)mmissioners, and for neglect of any other duty,
■ violation of any of the road laws, are liable to
le as such commissioners. Acts 1833, Cobb, 654.
ARTICLE 5
Citizens as Jurors.
§ 903. (§ 754.) Who are competent jurors. —
he fact of a person being a citizen or resident of
municipal corporation shall not render him in-
)mpetent to serve as a juror in cases in which
ich municipal corporation is a party or interested.
cts 1874, p. 45; 1875, p. 96.
That the fines and forfeitures arising in the city court
e payable to the educational fund of the city does not
squalify citizens of the city from serving as jurors in that
urt. tetson v. State, 7 Ga. App. 745, 68 S. E. 60.
ARTICLE 6
Licenses to Pawnbrokers.
§ 904. (§ 755.) Pawnbrokers, how licensed and
Dverned. — It shall be lawful for the municipal au-
lorities of the several incorporated towns and
ties in the State of Georgia to license pawn-
"okers in their respective jurisdictions, to define
y ordinance their powers and privileges,, to im-
Dse taxes upon them, to revoke their licenses, and
?nerally to exercise such superintendence over
awnbrokers as will insure fair dealing between
ie pawnbroker and his customers. Acts 1868, p.
56.
See §§ 3527 et seq. See 9 Cum. Dig. 505.
As to revocability of licenses, see § 15. As to taxation
pawnbrokers, see § 963.
Usury. — This section does not confer upon a municipal
corporation the power to allow pawnbrokers to charge usury.
Lockwood v. Muhlberg, 125 Ga. 660, 53 S. E. 92.
Ordinance. — Unless there is a municipal ordinance au-
thorizing it, the recorder can not impose a fine for engag-
ing in the business of a pawnbroker without license; but
a valid ordinance on the subject may be enforced in that
way. Phillips v. Atlanta, 78 Ga. 773, 3 S. E- 431.
ARTICLE 7
Disposition of Public Utility Properties — Sale
or Lease of Plant.
§ 904(1.) Sale, lease or other disposition by
municipality. — Municipalities of this State are here-
by empowered and authorized, if they so desire,
to sell, lease, or otherwise dispose of any or all
electric, water, gas, or other municipally owned
public utility plants or properties, on such terms
and conditions as to the municipality seem proper.
And said municipal corporations are empowered
and authorized to transfer title to said public utility
properties by warranty deed, bill of sale, contract
or lease, in the manner provided by law, provided,
however, that nothing in this Act contained shall
be held or construed to affect the powers of any
municipal 'corporation in the charter of which
there is now contained any provision either author-
izing the sale, lease, or other disposition of such
properties by the municipality, or prohibiting the
sale, lease, or other disposition of such properties
by the municipality so long as such provision re-
mains in the charter of such municipality. Acts
1925, p. 177.
§ 904(2). Notice of disposition — Objection to
petition — Referendum. — Notice of intention to
make such sale, lease, or other disposition of water
works, electric, or gas plant, setting out the price
and other general terms and conditions of such
proposed sale, lease, or disposition shall be given
by publication, once a Aveek for three consecutive
weeks, in some newspaper published in said muni-
cipality, and if no newspaper is published in said
municipality, then in some newspaper published in
the county in which said municipality is located,
and if no such newspaper, then in some newspaper
having a general circulation in such municipality
and after ten days from last publication of such no-
tice, the plant may be disposed of, unless, within ten
days after the last publication of such notice, peti-
tion signed by not less than twenty per cent (20%)
of the qualified voters of such municipality be
filed, objecting to and protesting against such sale,
lease, or disposition. If such petition, so signed, is
filed the sale shall not be made unless submitted
to a special election ordered for the purpose of de-
termining, whether a majority which shall con-
stitute two-thirds of those voting at such election,
shall vote for or against such sale, lease, or other
disposition; such election shall be ordered by said
municipality to be held not less than fifty days
after the date of the filing of said objecting peti-
tion with the municipality. Such election shall be
held in accordance with and in all respects be
governed by the Acts of the General Assembly in
regard to elections to determine whether munici-
palities shall issue bonds or not. The notice of such
election shall state its purpose. Acts 1925, pp.
177, 178.
As to determining whether bonds shall issue, see § 440
and notes thereto.
Ga. Code— 7
[193]
§ 904(3)
FUNDING BONDED DEBT OF MUNICIPALITIES
§ 90a
§ 904(3). Ballots.— The ballots provided shall
have plainly written or printed thereon the words
"Shall the water works, electric, or gas (as the
case may be)," plant, be sold, leased, or disposed
of (as the case may be)," and below said words
shall be suitably placed on separate lines, the
words "Yes" and "No," so that the voter may in-
dicate the way the elector desires to vote on the
questions submitted. Acts 1925, pp. 177, 179.
§ 904(4). Election— Majority vote. — If a majority
of those voting in said election shall vote in favor
of such sale, lease, or disposition, then the proper
officers of the municipality may proceed to sell,
lease, or dispose of such plant in accordance with
the terms and conditions set out in the notice of
proposed intention to sell, lease, or dispose, of
such plant, as herein provided. If such election is
determined against such sale, lease, or disposition
of such plant then such plant shall not be sold,
leased, or disposed of, but shall remain the prop-
ertv of the municipality. Acts 1925, pp. 177, 179.
ARTICLE 8
Maintenance of Wharves, Vessels, etc., By Cer-
tain Cities.
§ 904(5). Shipping facilities on navigable
streams — Ships, vessels, etc. — Municipalities in
the State of Georgia, through their duly consti-
tuted authorities, having a population of not less
than 30,000 and not exceeding 32,000 according to
the United States Decennial Census last issued,
and located on navigable streams, are hereby au-
thorized to acquire, lease, erect, operate, control
and manage wharves, docks, warehouses and ter-
minals; and also to have the right to own, buy, sell,
lease, maintain and operate ships, vessels, and bar-
ges on navigable streams in the State of Georgia
and on streams flowing through the State of Geor-
gia and through other states when the provisions
of this Act are adopted by the voters of such muni-
cipality as hereinafter authorized. Acts 1925, p.
248.
§ 904(6.) Municipal bonds. — The municipality
as set forth and designated in § 904(5) when the
provisions of this Act are adopted as hereinafter
authorized, shall have the right to issue such
bonds as may be necessary to carry into effect
the purposes set forth and designated in said Sec-
tion by complying with the laws of the State of
Georgia in regard to the issuance of bonds by
municipalities. Acts 1925, p. 248.
As to issuance of bonds by municipalities, see § 440 and
the notes thereto.
§ 904(7). Election to ratify — Ballots. — Any
such municipality as provided in § 904(5)
through its duly constituted authorities, may
call an election in the same manner as is pro-
vided in the charter of such municipality for the
calling of elections for the issuance of bonds and
to be conducted under the same rules, to submit
to the voters of such municipality the question
of the adoption of this Act, having printed on the
ballots used in such election the words "For
adoption of Steamer and Terminal Act" and the
words "Against the adoption of Steamer and
Terminal Act" so that free choice may be made
bv such voters, and if a majority of the qualified
voters at such election shall favor the adoption
of this Act, the same shall have the same force
and effect as an Amendment to the Charter of
such municipality and provided further, that the
question of the issuance of bonds under § 904(6),
and the amount, date of maturity, rate of interest
thereon, etc., may in the discretion of the govern-
ing authorities of such municipality be submit-
ted to the duly qualified voters thereof at the
same election, to be voted, however, upon sepa-
rate ballots. Acts 1925, p. 248.
CHAPTER 4
Funding Bonded Debt of Municipalities.
For full and comprehensive treatment of municipal se-
curities, see 8 Cum. Dig. 760; 9 E)nc. Dig. 531.
§ 905. (§ 758.) Bonded debt of towns and cities
may be compromised. — The municipal authori-
ties of any incorporated town or city of this
State are authorized to compromise their bonded
debt, in accordance with the provisions of this
Chapter: Provided, that this Chapter shall not
be construed to prejudice the right of such credit-
ors as may refuse to assent to such compromise.
Acts 1878-9, p. 85.
As to elections on bond issue, see §§ 440 et seq. As to
limitation on bonded indebtedness, see § 6563.
§ 906. (§ 759.) New bonds may be issued for
outstanding bonds. — Where there are outstand-
ing bonds and coupons of any incorporated town
or city of this State, whether the said outstand-
ing bonds or coupons are due or to become due,,
it shall be lawful for the municipal authorities
to issue new bonds, with coupons attached, to
be exchanged and to stand in the place of such
outstanding bonds and coupons: Provided, al-
, ways, that the new bonds so issued shall not ex-
ceed in amount the previously existing total
bonded debt, with interest thereon, of such town
or city. Acts 1878-9, p. 85.
§ S07. (§ 760.) Benefits of this law, how ob-
tained.— When the authorities of such town or
city shall desire to avail themselves of the bene-
fit of the provisions of this Chapter, they are
hereby authorized and empowered to pass any
ordinance, or ordinances, to provide for the is-
suance and exchange of new bonds to stand in
the place and stead of outstanding bonds and
coupons, and to determine the mode and method
of such issuance and exchange, and to fix the
length of time such new bonds shall run and the
rate of interest they shall bear. Such ordinance,
or ordinances, shall have the force and effect of
contracts between the said town or city and
those who may receive or hold such new bonds
so issued and exchanged. Acts 1878-9, p. 85.
§ 908. (§ 761.) Sinking fund, how provided. —
If any town or city, availing itself of the provi-
sions of this Chapter, shall desire to provide a
sinking fund for the redemption of such new
bonds, it shall be lawful for the authorities to
pass all ordinances necessary for that pur-
pose, and to create a commission for the manage-
ment of said sinking fund, and for its proper use
and application, which commission shall be com-
posed of not less than three nor more than five
freeholders of such town or city; and the ordin-
ance, or ordinances, providing for said sinking
[194]
§ 909
DEMAND BEFORE SUIT
§ 910
fund and said commission, for its management
and application, and the mode of appointing said
commission, and prescribing its duties, shall have
the force and effect of law, and shall be held and
considered as part of the contract between such
town or city and the acceptors or holders of such
new bonds. Acts 1878-9, p. 85.
CHAPTER 5.
Census of Cities.
§ 909. Census of cities of five thousand inhabit-
ants.— It shall be the duty of the secretary of
State, upon the lequest presented from the
mayor and general council, or other governing
authority of any city in Georgia having a popu-
lation of five thousand or upwards, to have a
census of the population of such city made by
enumerators to be sworn by the ordinary of the
county, the affidavit to be prescribed by the sec-
retary of State, one copy of which census shall
be returned to and filed with said secretary of
State, and one or more copies filed with
the clerk of council of such city. Such
census shall be taken in accordance with regula-
tions prescribed by the mayor and general coun-
cil of the city and approved by the secretary of
State. The expense of taking such census to be
paid by the city having it taken.
Such enumeration of the population of said
city, when taken and filed with the secretarj^ of
State, shall be recognized as a State census or
enumeration of the population of the city until
a new census shall thereafter be taken by au-
thority of the United States government, or of
the State government. Acts 1896, p. 72.
CHAPTER 6.
Demand Before Suit.
§ 910. Demand prerequisite to suit for injury
to person or property. — No person, firm or cor-
poration, having a claim for money damages
against any municipal corporation of this State
on account of injuries to person or property,
shall bring any suit at law or equity against said
municipal corporation for the same, without first
presenting in writing such claim to the govern-
ing authority of said municipality for adjustment,
stating the time, place, and extent of such injury,
as near as practicable, and the negligence which
caused the same, and no such suit shall be en-
tertained by the courts against such municipality
until the cause of action therein has been first
presented to said governing authority for adjust-
ment; provided, that upon the presentation of
such claim said governing authority shall con-
sider and act upon the same within thirty days
from said presentation, and that the action of
said governing authority, unless it results in the
settlement thereof, shall in no sense be a bar 'to
a suit therefor in the court; provided, that the
running of the statute of limitations shall be sus-
pended during the time that the demand for
payment before such authorities is pending,
without action on their part. Acts 1899, p. 74.
See § 4498.
For full treatment of actions against municipal corpora-
tions, see 8 Cum. Dig. 755; 9 Enc. Dig. 529.
Editor's Note. — This section was taken from the Acts of
1899, p. 74, and first appeared in the Code of 1910. The
section does not contemplate that the notice shall be drawn
with all the technical niceties necessary in framing a dec-
laration. The purpose of the law was simply to give to the
municipality notice that the citizen or property owner has
a grievance against it. It is necessary only that the city
shall be put on notice of the general character of the com-
plaint, and, in a general way, of the time, place, and ex-
tent of the injury. The act recognizes, by the use of the
words "as near as practicable," that absolute exactness
need not be had.
Strictly Construed. — This section is in derogation of the
common . law and should be strictly construed as against
the municipality. Maryon v. Atlantic, 149 Ga. 35, 99 S.
E. H6; Scearce v. Gainsville, 33 Ga. App. 411, 126 S. E.
883.
Substantial Compliance. — The requirements of this sec-
tion are "sufficiently complied with where the notice gives
information sufficiently definite to locate the property al-
leged to have been injured, the amount of damages claimed,
and sufficient data to enable the city authorities to ex-
amine into the alleged injuries and determine whether the
claim should be adjusted without suit." Macon v. String-
field, 16 Ga. App. 480, 483, 85 S. E. 684; Simons v. Ray
City, 32 Ga. App. 430, 124 S. E. 60; Marks v. Rome, 145
Ga. 399, 89 S. E- 324; Kennedy v. Savannah, 8 Ga. App.
98, 68 S. E- 652; Griffin v. Stewart, 19 Ga. App. 817, 819, 92
S. E. 400; Scearce v. Gainsville, 33 Ga. App. 411, 416, 126
S. E. 883.
A service upon the municipal corporation of a verbatim
copy of the petition which the person injured intends to
file in a suit against it, which states the time, place, and
extent of the injuries complained of, accompanied by a
letter from the plaintiff's attorneys to the clerk of the mu-
nicipal corporation, reciting the name of the case and
stating that "we inclose herewith claim in the above-stated
matter as required by law," is, sufficient as a presentation
of the claim for adjustment. L,ewis v. Moidtrie, 31 Ga.
App. 712, 121 S. E. 843.
Same — Mere Intention to Sue. — A written notice to a mu-
nicipal corporation of the intention of a person injured to
bring suit against it at a certain term of court, to re-
cover for alleged injuries, is a presentation in writing of
such claim to the governing authority of the municipal
corporation for adjustment, as required by this section.
Lewis v. Moultrie, 31 Ga. App. 712, 121 S. E- 843. In this
case the court said: "The decision in the case of Talla-
poosa v. Brock, 138 Ga. 622, 75 S. E- 644, is not authority
to the contrary, since it does not appear from the facts
there narrated that the notice was served upon the gov-
erning authorities of the municipal corporation."
Same — Must Be Alleged. — In bringing suit against a mu-
nicipal corporation for damages on account of a personal in-
jury, it is necessary to allege a substantial compliance with
this section and a petition which fails to do this is demur-
rable. Grooms v. Hawkinsville, 31 Ga. App. 424, 120 S.
E. 807; Hooper v. Atlanta, 26 Ga.App. 221, 105 S. E. 723.
Same — Must Be Proved. — Where, in an action for per-
sonal injuries against a city, compliance with this stat-
ute is alleged, and such allegation is denied by the city,
it is a necessary part of the plaintiff's case that he prove
compliance with the statute, and on failure to show sub-
stantial compliance therewith it is not error to grant a
nonsuit. Tallapoosa v. Brock, 13 Ga. 622, 75 S. E. 644;
Bostwick v. Griffin, 141 Ga. 120, 80 S. E. 657.
"Extent of Injury" — Amount. — "The words 'extent of such
injury' do not mean the amount of damages claimed in
dollars and cents, but mean the nature, character, and
particulars of the injury, and which should be stated 'as
near as practicable.' " Maryon v. Atlanta, 149 Ga. 35, 38,.
99 S. E- 116.
It is not a prerequisite to suit against a municipal cor-
poration in this State, for injury to person or property,
that the written notice required under this section should
specify any amount of money claimed as damages. Maryon
v. Atlanta, 149 Ga. 35, 99 S. £<. 116; S. C, 23 Ga. App. 716r
99 S. E. 316, overruling Macon v. Stringfield, 16 Ga. App.
480, 85 S. E. 684, and Williamson v. Savannah, 19 Ga. App.
784, 92 S. E. 291, so far as is in conflict. See to the same
effect Scearle v. Gainsville, 33 Ga. App. 411, 126 S. E. 883.
The addition of the amount is unnecessary, and, if set
forth, mere surplusage, and does not bar a recovery of a
greater sum. Maryon v. Atlanta, 149 Ga. 35, 37, 99 S.
E. 116; Scearce v. Gainsville, 33 Ga. App. 411, 126 S. E-
883.
Notice to Mayor and Council. — A notice of damages for
injuries addressed to the Mayor and Council of Greens-
boro instead of to the city in its corporate name is suffi-
cient, and the fact that the notice attempts a compromise
does not render it insufficient. Greensboro v. Robinson, 19
Ga. App. 199, 91 S. E. 244.
Illegal Imprisonment. — This section applies to a claim
[ 195
§ 911
SYSTEM OF SUPERVISED RECREATION
§ 913(5)
against a city for illegal imprisonment under sentence from
a recorder's court. Marks v. Rome, 145 Ga. 399, 89 S. E.
324.
Variance between Petition and Notice.— The petition need
not actually follow the notice, and an immaterial variance
between the two as to time, place, or extent of injury will
not amount to a fatal variance. Macon v. Stringfield, 16
(xa. App. 480, 85 S. E- 684; Williamson v. Savannah, 19
Ga. App. 784, 92 S. E- 291. If the notice and the petition
correspond in all substantial respects as to matters, infor-
mation of which is required to be given, the variance is
immaterial. Langley v. Augusta, 118 Ga. 590, 600, 45 S.
E. 486. See also, Smith v. Elberton, 5 Ga. App. 286, 63 S.
E. 48.
Evasive Answer. — The petition alleged that notice of
claim for damages was given to the defendant municipal
corporation. The defendant being chargeable with knowl-
edge of the service upon it of this notice, and its answer
to this allegation of the petition being evasive, the answer
will be treated as an admission that the notice was given
as alleged. Madison v. Bearden, 22 Ga. App. 376, 96 S.
E. 572.
CHAPTER 7.
City Marshal.
§ 911. City marshal, how ruled. — The marshals
of the towns and cities of this State, and such
other officers of towns and cities whose duty it is
to collect the taxes and other revenues of such
towns and cities, by levy and sale, shall be sub-
ject to be ruled, either in the superior, city, or
county court, in the county where said town or city
is located, for money in the hands of such officer
arising from the public sale of any property, under
and by virtue of any process issued by said city
or town, in the same manner as sheriffs and con-
stables are ruled for the distribution of money
coming into their hands from the sale of any
property. Acts 1900, p. 81.
See § 5343.
§ 912. Proceeds of sales. — When an execution
is placed in the hands of the marshal or other
selling officer of any town or city, with written
notice to hold up the proceeds arising from the
sale of any property of the defendant in fi fa., the
marshal or other selling officers shall, after first
paying to the city the amount due on the process
under which the sale was made, hold up the bal-
ance of the funds in his hands until he is ordered
to pay out the same by the court first acquiring
jurisdiction, under proper proceeding.
See § 5348.
CHAPTER 8.
Election of Officers in Certain Cities.
§ 913. Elections of officers in certain cities. —
The time for the election of all officers of the in-
corporated cities of this State, having not less
than fifty thousand inhabitants, and not more
than seventy-five thousand inhabitants, accord-
ing to the census of the United States, now elec-
tive by the mayor and aldermen of said cities,
shall be the evening of the day fixed by law for
the qualification of the mayor and aldermen who
are to make such election. All officers so elec-
ted shall hold their office for the term of two
years and until their successors are elected and
qualified, and their salaries shall be neither in-
creased nor diminished during their term of of-
fice. Acts 1902, p. 109.
For full treatment of elections generally, see 5 Cum. Dig.
283; 5 Enc. Dig. 1.
§ 913(1). Managers of elections. — It shall be
unlawful for any employee or official of any
town or city in this State, to preside as manager
of any election for mayor and alderman of the
town or city of which he is an employee or of-
ficial. Acts 1910, p. 116.
As to the penalty for violation of this act, see P. C, §
666 (1).
CHAPTER 9.
System of Supervised Recreation.
§ 913(2). Application of Act, and definition of
"governing body." — This Act shall apply to all in-
corporated cities and towns in the State of Geor-
gia. The term "governing body" as herein used
means the mayor and city council, the commis-
sioner and commissioners, or either or both as
the case may be, or the governing body by what-
ever name called, of any citjr or town coming un-
der the provision of this Act. Acts 1923, p. 106.
§ 913(3). Dedication and acquisition of play
grounds, etc., conduct, equipment, and mainte-
tance. — The governing body of any city or town
may dedicate and set apart for use as play-
grounds, recreation centers and for other rec-
reation purposes, any lands or buildings or both
owned or leased by such municipality and not
dedicated or devoted to another or inconsistent
public use; and such municipality may, in such
manner as may now or hereafter be authorized
or provided by law for the acquisition of lands or
buildings for public purposes by such munici-
pality, acquire or lease lands or buildings or
both, within or beyond the corporate limits of
such municipality, for playgrounds, recreation
centers and for other recreational purposes and
when the governing body of the municipality so
dedicates, sets apart, acquires or leases lands or
buildings for such purposes, it ma3^, on its own
initiative, provide for their conduct, equipment
and maintenance according to provisions of this
Act, by making an appropriation from the gen
eral municipal funds. Acts 1923, pp. 106, 107.
§ 913(4). Established system of supervised rec-
reation.— The governing body of any such mu-
nicipality may establish a system of supervisee
recreation and it may, by resolution or ordinance
vest the power to provide, maintain and conducij
playgrounds, recreation centers and other recrea-
tional activities and facilities in the school board!
park board, or other existing body or in a play-
ground and recreation board as the governing
body may determine. Any board so designated
shall have the power to maintain and equip play-
grounds, recreation centers and the • building?
thereon and it may for the purpose oi carrying
out the provisions of this Act, employ play lead
ers, playground directors, supervisors, recreatior
superintendents or such other officers or em
ployees as it deems proper. Acts 1923, pp. 106
107.
§ 913(5). Creation of playground and recrea
tion board, membership, etc. Officers. — If th<
governing body of any such municipality shali
determine that the power to provide, establish
conduct and manitain a recreation system as
aforesaid shall be exercised by a playground an<
recreation board, such governing body shall, b?
[196]
§ 913(6)
SYSTEM OF SUPERVISED RECREATION
§ 913(13)
resolution or ordinance, establish in such mu-
nicipality a playground and recreation beard
which shall possess all the powers and be sub-
ject to all the responsibilities of local authorities
under this Act. Such board, when established,
shall consist of five persons serving without pay,
to be appointed b\^ the mayor or presiding of-
ficer of such municipality. The term of office
shall be for five years, or until their successors
are appointed and qualified, except that the mem-
bers of such board first appointed shall be ap-
pointed for such terms that the term of one mem-
ber shall expire annually thereafter. Immedi-
ately after their appointment, they shall meet and
organize by electing one of their members pres-
ident and such other officers as may be neces-
sary; vacancies in such board's occurring other-
wise than by expiration of term shall be filled by
the mayor or presiding officer of the governing
body only for the unexpired term. Acts 1923,
pp. 106, 107.
§ 913(6). Municipalities and school boards may
join in conduct and maintenance. — Any two or
more municipalities may jointly provide, estab-
lish, maintain and conduct a recreation system
ind acquire property for and establish and main-
tain playgrounds, recreation centers and other
•ecreational facilities and activities. Any school
)oard may join with any municipality in conduct-
ng and maintaining a recreation system. Acts
1923, pp. 106, 108.
§ 913(7). Grants, gifts and donations — Disburse-
ment of monies so received. — A playground and
•ecreation board or other authority in which is
zested the power to provide, establish, maintain
ind conduct such supervised recreation system
nay accept am^ grant or devise of real estate or
my gift or bequest of money or other personal
property of any donation to be applied, principal
>r income, for either temporary or permanent
lse for playgrounds or recreation purposes, but
f the acceptance thereof for such purposes will
subject the municipality to additional expense
or improvements, maintenance or renewal, the
icceptance of any grant or devise of real estate
shall be subject to the approval of the governing
>ody of such municipality. Money received for
iucIi purposes, unless otherwise provided by the
erms of the gift or bequest, shall be deposited
Bath the treasurer of the municipality to the ac-
:ount of the playgrounds and recreation board or
•.ommission or other body having charge of such
vork, and the same may be withdrawn and paid
mt of such body in the same manner as money
tppropriated for recreation purposes. Acts 1923,
)p. 106, 108.
§ 913(8). Issuance of bonds. — The governing
)ody of any municipality may, pursuant to law,
irovided that the bonds of such municipality may
>e issued in the manner provided by law for the
ssuance of bonds for other purposes, for the pur-
»ose of acquiring lands or buildings for play-
grounds, recreation centers and other recreational
•urposes and for the equipment thereof. Acts 1923,
»p. 106, 109.
As to issue of bonds generally, see § 440, and notes
hereto.
§ 913(9). Petition for establishment of super-
r n
vised recreation center — Special tax to be sub-
mitted to voters. — Whenever a petition signed by
at least ten per cent, of the qualified and reg-
istered voters of any municipality shall be filed in
the office of the clerk of such municipality request-
ing the governing body of such municipality
to provide, establish, maintain and conduct a
supervised recreation system and to levy an an-
nual tax for the conduct and maintenance there-
of not more than one mill on each dollar of as-
sessed valuation of all taxable property within
the corporate limits of such municipality, it shall
be the duty of the governing body of such munic-
ipality to appropriate funds for and to provide for
the establishment, maintenance and conduct of a
supervised recreation system or in case of special
tax to cause the question of the establishment,
maintenance and conduct of such supervised rec-
reation system to be submitted to the voters to
be voted upon at the next general or special elec-
tion of the municipality; Provided, however, that
such question shall not be voted upon at the next
general or special election unless such petition
shall have been filed at least thirty days prior to
the date of such election. Acts 1923, pp*. 106, 109.
§ 913(10). Duty of governing body if petitioners
prevail in election. — Upon the adoption of such
proposition, at an election the governing body of
the municipality shall, by appropriate resolution
or ordinance, provide for the establishment, main-
tenance and conduct of such supervised recrea-
tion system as they may deem advisable and
practicable to provide and maintain out of the
tax money thus voted, and the said governing
body may designate, by appropriate resolution or
ordinance, the board or commission to be vested
with the powers, duties and obligations neces-
sary for the establishment, maintenance and con-
duct of such recreation system as provided in this
Act. Acts 1923, pp. 106, 109.
§ 913(11.) Playground and recreation tax. —
The governing body of any municipality adopting
the provisions of this Act at an election shall
thereafter annually levy and collect a tax of not
less than the minimum nor more than the maxi-
mum amount set out in the said petition for such
election, which tax shall be designated as the
"playground and recreation tax" and shall be
levied and collected in like manner as the general
tax of the municipality. Acts 1923, pp. 106, 1 10.
§ 913(12). Payments out of and control of
"playgrounds and recreation funds." — The cost
and expense of the establishment, maintenance
and conduct of a supervised recreation system of
playgrounds, recreation centers and other rec-
reational facilities and activities shall be paid out
of taxes or money received for this purpose, and
the playgrounds and recreation board or commis-
sion, or other authority in which is vested the
power to provide, establish, conduct and main-
tain a supervised recreation system and facilities
as aforesaid shall have exclusive control of all
moneys collected or donated to the credit of the
"playgrounds and recreation funds." Acts 1923,
pp. 106, 110.
§ 913(13.) Application of provisions of Act. —
Provided, however, that the provisions of this
Act shall not apply to recreation or playground
§ 913(14)
REPEAL OR AMENDMENT OF MUNICIPAL CHARTERS
§ 913(20)
commissions, boards or systems which are now
created or which may hereafter be created by
special Acts of the Legislature. Acts 1923, pp.
106, 110.
CHAPTER 10.
Fire Departments in Certain Cities.
§ 913(14.) Two shifts of firemen. — Each City
in the State of Georgia having a population of ten
thousand seven hundred and eighty-three (10,-
783) according to the Federal Census of 1920
shall provide for two shifts of Firemen, one shift
to be on duty during the day and the other shift
to be on duty during the night. Provided, how-
ever, that all firemen, whether on the day or night
shifts shall be subject to call in case of a general
firm alarm during the time when a fire emergency
so requires. Acts 1925, p. 191.
§ 913(15.) Fourteen hours maximum duty. — No
fireman shall be required to remain on duty more
than fourteen (14) hours per day and the hours
during which each shift is to be on duty shall be
so divided, either by the shifts alternating from
night to day shifts or otherwise so that neither
shift shall be discriminated against in the num-
ber of hours during which the members thereof
are required to be on) duty. Acts 1925, p. 191.
§ 913(16.) Vacations. — Nothing in this Act shall
be construed as repealing any of the provisions
of any law or ordinances of the Cities affected by
this Act allowing vacations to firemen. Acts 1925,
p. 191.
§ 913(17.) "Firemen" defined.— The word "Fire-
men" as used in this Act shall be construed to
mean those persons employed by any city effected
by this Act in any work connected with the pre-
vention and extinguishing of fires in said cities
by the municipal governments. Acts 1925, p. 191.
§ 913(18.) Election to ratify. — On the date of
the next regular election for Mayor and members
of the City Council held in cities having a popula-
tion of ten thousand seven hundred and eighty
three (10,783) according to the Federal Census
of 1920, an election shall be held submitting to
the qualified voters of such cities the question of
the adoption of the provision of this Act. The
Mayor and City Council of such cities shall ap-
point managers and clerks for holding said elec-
tion and shall make all usual and necessary pro-
visions for holding said election. The polling place
or places shall be the same place or places in which
all regular city elections are held and the Mayor
and Council shall provide as many polling places
as may be provided for holding regular City elec-
tions.
The expenses of holding such election shall be
borne by the Cities covered by this Act and pro-
visions for paying for the same shall be made by
the Mayor and City Council. Said city election,
except as herein otherwise provided, shall be held
under such rules and regulations as have hereto-
fore been fixed by law and as now exist for hold-
ing general elections in said cities and the qualifi-
cations of voters in said election, as to residence,
registration, and other requirements shall be the
same as that heretofore by law and as now exists
for voting in any general City election in said
Cities.
Those favoring the adoption of this Act will
have written or printed on their ballots "For two
shifts of Firemen," and those opposing the adop-
tion of this act shall have written or printed on
their ballots "Against two shifts of Firemen."
After the polls shall be closed, the said man-
agers on the evening of said election, shall pub-
licly count and consolidate the votes cast in said
election and on the day succeeding said election,
at the hour of four (4) o'clock P. M. said man-
agers shall make return of said election under
their hands and seals to the Mayor and council of
said Cities at a special meeting of the said Mayor
and City Council, which shall at that time be
held. The return of said managers shall show the
number of votes cast for the adoption of this Act
and the number of votes cast against the adop-
tion of this Act. If a majority of the votes cast
in said election be "For Two Shifts of Firemen,"
then all of the provisions of this Act shall, within
sixty days after the date upon which said election
is held, be of full force and effect, in the City in
which the election is held, thereafter and declara-
tion of such fact shall be made by the Mayor and
City Council by resolution duly entered upon the
minutes. If a majority of the votes cast in said
election be "Against Two Shifts of Firemen" the
provision of this Act shall be considered and held
of no effect in Cities covered by this Act voting
against its adoption. Provided, however, that
should the Mayor and City Council of any City
covered by this Act fail or refuse to call or cause
to be held the election aforesaid or should the
Mayor and City Council fail or refuse to hold a
meeting on the next day succeeding the election, as
herein provided, than and in that event this Act
shall be deemed to have been ratified and shall go
into effect within the time heretofore specified in
this Act. Acts 1925, p. 191.
CHAPTER ll.
Repeal or Amendment of Municipal Charters.
§ 913(19.) Referendum, when necessary. — No
local law seeking a repeal of a municipal charter
of cities of less than two hundred thousand in-
habitants, or an amendment to any municipal
charter of cities of less than two hundred thou-
sand inhabitants which amendment materially
changes the form of government of a municipality
or seeks to substitute other officers for municipal
control other than those in control under existing
charter, shall become effective until such repeal or
amendment shall be voted upon by the qualified
voters of the municipality to be effected as here-
inafter provided. Acts 1925, p. 136.
§ 913(20.) Election— Notice— Ballot — Petition.
— Whenever a local law seeking a repeal of an
existing municipal charter or an amendment as
referred to in § 913(19) shall have been passed by
the General Assembly, it shall be the duty of the
city authorities in charge of such municipality in
which the change is sought to call an election in
said municipality to be held within thirty days
from the date of said call and publish a notice
thereof in the official organ of the county of said
municipality. Said election to be held under the
[ 198 ]
§ 913(21)
PUBLIC REVENUE
§ 993(2)
same rules and regulations covering the election
of officers of such municipality that [at] which elec-
tion shall be submitted to the qualified voters of
the municipality to be affected, the question of
whether the existing charter shall be repealed or
not, or if the amendment materially changing
[changes] the existing form of government of such
municipality or of substituting [substitutes] other
offices [officers], whether such an amendment
shall go into effect or not. Those voting in
favor of a repeal of the charter shall have
printed or written on their ballots "for repeal of
present municipal charter," and those opposing
the repeal of said existing charter shall have writ-
ten or printed on their ballots the words "against
repeal of present municipal charter"; in case the
election is called as set out in § 913(19) those vot-
ing in favor of the amendment to the charter
shall have written or printed on their ballots the
words "for amendments to present charter," and
those opposing said amendment shall have writ-
ten or printed on their ballots the words "against
the amendments to the present charter." The
results of said elections shall be declared by the
rules and regulations covering elections in the
municipalities voting on the same. If a ma-
jority of the votes cast in any such election are
in favor of a repeal of the existing charter, then in
that event the local law repealing the charter
shall become effective and the charter of such
municipality shall be repealed. If a majority of
the votes cast at such election are in favor of the
amendment to a present municipal charter, then
in that event the Act amending such municipal
charter shall become effective. If a majority of
the votes cast in said election are not in favor of
such repeal or amendment, then in that event the
municipal charter then existing shall stand. Pro-
vided, however, that the provisions of this Section
shall not be effective and the officers of such
municipalities shall not be required to call such
election unless a petition signed by more than
one-fifth of the qualified voters of such munic-
ipality shall be filed with the officer of such
municipality within six days from the passage of
said bill requesting that such election be called.
Acts 1925, p. 136.
Editor's Note. — It is believed that the words inserted in
brackets read in lieu of the words they follow, and the
omission of the word "of" placed in parenthesis, represent
the legislative intention.
§ 913(21.) Amendments changing officers or
form of Government subject to this Act. — This
Act shall in no event have reference to amend-
ments to existing municipal charters except such
seeking a material change in the municipal form
of government or the substitution of other munic-
ipal officers other than those holding under exist-
ing jobs. Nor shall the same apply to any law
where a repeal or an amendment has already gone
into effect, but shall apply to such as have not
gone into effect at the time of the passage of this
Acts 1925, p. 136.
§ 913(22.) Abolishment of offices created by
municipality. — No provision of this Act shall be
construed as preventing the municipal officers of
any municipality from abolishing any office ex-
isting at the time of the passage of this Act and
which may have been created by such municipal
officers to perform the duties of such abolishing
office. Acts 1925, p. 136.
EIGHTH TITLE.
Public Revenue.
CHAPTER 1.
Taxation.
ARTICLE 1.
Ad Valorem, Specific, and Occupation Taxes.
§§ 914-993 Repealed.
See editor's note under § 993 (1).
§ 993(1). Ad valorem tax for sinking fund for
retirement of State bonds. — The Governor, by and
with the assistance of the Comptroller-General, is
authorized and empowered annually to levy and
assess a tax on the ad valorem value of the taxable
property of this State such rate as may be suffi-
cient to raise a net amount of $100,000 as a sink-
ing fund to pay off and retire the valid outstand-
ing bonds of the State as they fall due, as required
by Article 7, Section 14, Paragraph 1, of the Con-
stitution. The tax above authorized shall be
specially levied and collected and separate ac-
counts of the same shall be kept by the Treasurer,
and the money arising therefrom shall be applied
to paying off the valid bonds of the State as they
mature. The said amount so received each year
shall be applied to paying off and retiring the valid
bonds of the State maturing in their order con-
tinuously. All bonds retired under the provisions
of this Act shall be cancelled and stamped with
the words "sinking funds," by the Treasurer and
filed in his office. Acts 1923, Ex. Sess. p. 20.
Editor's Note. — This section and the sections following
in this article, codified from the Act of 1923, repeal all laws
in conflict therewith. It would seem that it was the leg-
islative intention that this act should constitute the ex-
isting law on this subject, hence, similar provisions of the
Acts of 1921, p. 38 and 1918, p. 43, are not herein codified.
This position is sustained by the opinion of Mr. Chief Jus-
tice Russel in Pate v. Foss, 157 Ga. 579, 584, 122 S. E. 238.
where he said that "when a provision (of a former act)
is entirely omitted from the succeeding tax act, the omis-
sion must be held to have been intentional and to have ef-
fected the repeal of the omitted provision in the previous
statute." See Hardy v. State, 25 Ga. App. 287, 103 S.
E. 267. [But as to the effect of partial unconstitution-
ality of the Act of 1923, see note under § 993 (34).] How-
ever a resolution of the general assembly in Acts 1924, p.
841, refers to one section of Acts 1918, p. 43, as" still being
in force. Sections 916 to 933 inclusive have been specifically
repealed, §§ 982 to 984 by Acts 1915, Ex. Sess., p. 76, and
the other sections by Acts 1918, p. 43. Section 993 was
repealed by both of the Acts last named. Acts 1923, Ex.
Sess., p. 20, which also superseded §§ 914 and 915 has been
codified together with sections from other acts as §§ 993 (1)
to 993 (168).
Cases which are considered applicable to the new sec-
tions are annotated under the proper section, often with-
out mention of the fact that they were decided under
earlier laws.
The Act of 1923 herein codified as §§ 1245 (7) et seq.. cre-
ating a department of Revenue, expressly provides that it
is not applicable to any of the ad valorem taxes or taxes
required to be given to the tax receiver. However it does
apply to specific and occupational taxes, license taxes, stamp
taxes on tobaccos, and inheritance taxes. See § 1245 (8).
§ 993(2). Additional ad valorem tax to meet
appropriations. — In addition to the foregoing levy,
officers, nor from preventing the creation of new | the Governor, by and with the assistance of the
[199]
§ 993(3)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(9)
Comptroller-General, shall also levy and assess
such additional rate of tax on the taxable property
of this State as may be necessary to meet the
appropriations of the General Assembly of Geor-
gia for each succeeding year. The aggregate ad
valorem tax levy in any one year not to exceed
the tax rate limit fixed by the Constitution of
this State. The Comptroller-General and State
Tax Commissioner shall cause returns of public
service and utility corporation whose returns are
made to the Comptroller-General, to be equalized
with the returns of real estate taxpayers of Geor-
gia, in order that the percentage of actual val-
ues returned by such corporations shall be as
great as the percentage of actual values returned
by land owners of Georgia. Acts 1923, Ex.
Sess., pp. 20, 21.
§ 993(3). Specific and occupation taxes. — In
addition to the ad valorem tax on real estate and
personal property, as required by the Constitu-
tion and now provided for by law, the following
specific and occupation taxes shall be levied and
collected each year after the passage of this Act,
beginning in 1924. In all cases in this Act where
population controls the amount or tax of li-
cense fee to be paid, the last census report of the
Federal Government shall govern. Acts 1923,
Ex. Sess., pp. 20, 21.
§ 993(4). Poll tax— Exemptions — Registered fe-
male voters. — Upon each and every inhabitant
of the State between the ages of twenty-one and
sixty years, on the day fixed for the return of prop-
erty for taxation, a poll tax of one ($1.00) dollar,
which shall be for educational purposes in in-
structing children in the elementary branches of
an English education only. Provided, this shall
not be demanded of blind persons, nor crippled,
maimed or disabled Confederate veterans re-
lieved of such taxes under and by authority of
Section 766, Volume 1, of the Code of 1895, nor
shall this tax be required or demanded of female
inhabitants of the State who do not register for
voting. Provided further, That those female in-
habitants who have heretofore registered may
avail themselves of the benefits of this Act and
be relieved of said tax, by applying to the tax
collector of their county, and have their names
stricken from said registration book; and it shall
be the duty of said tax collector to issue to such
females who may apply to have their names so
stricken a certificate, which certificate shall bear
date when issued and shall give the name of
such females, and state in substance that said
named iemale has been stricken from the regis-
tration book, is no longer a registered voter
for that year. Acts 1923, Ex. Sess., pp. 20, 21.
As to the qualification of voters generally, see § 6397.
Poll Tax for Women.— Prior to the Act 1921, p. 39, § 2,
par. 1, women were not required to pay a poll tax in this
state. Davis v. Warde, 155 Ga. 748. 118 S. E- 378.
§ 993(5). Professional tax. — Upon each and
every practitioner of law, medicine, osteopathy,
chiropractic, chiropodist, dentistry, and upon each
and every veterinary surgeon, optician, optome-
trist, masseur, public accountant, or embalmer,
and upon every civil, mechanical, hydraulic, or
electrical engineer, or architect, charging for their
services as such, $15.00, and the validity of their
licenses is made contingent upon the payment of
the tax herein provided. And no municipal cor-
poration or county authority shall levy or collect
an additional tax on the professions, business or
occupations enumerated above, which shall be
returned to the tax receiver of the county of his
residence by any person engaged therein on the
first day of January, and entered by the receiver
on the digest of the county. Acts 1923, Ex.
Sess., pp. 20, 22.
What Constitutes Doing Business. — A lawyer who prac-
ticed half of the year in Tennessee and the other half in
Georgia is doing business within the state. White v.
Hixon, 132 Ga. 567, 64 S. E- 648.
§ 993 (6). Presidents of corporations. — Upon
the president of each express, telegraph, tele-
phone, railroad, street railroad, steamboat or nav-
igation company, electric light, gas company,
water company, sleeping car company, palace
car company, building and loan association, and
investment and loan company, doing business in
this State, $25.00.
Provided, said tax shall not apply to local
building and loan associations fostered as a civic
undertaking and not conducted for financial gam
or profit. Acts 1923, Ex. Sess., pp. 20, 23.
Constitutionality. — The corresponding section of the Act
of 1902, was held to be constitutional. Witham v. Stew-
art, 129 Ga. 48, 58 S. E. 463.
One who is president of several banks may be compelled
to pay the tax for each bank. Witham v. Stewart, 129
Ga. 48, 58 S. E. 463.
§ 993(7). Agents of corporations. — In case
the president of any of the companies enumerated
in the preceding paragraph does not reside in
this State, then in each case the general agent,
superintendent, or other person or official in
charge of the business of such companies, resid-
ing in this State, shall be required to pay the
tax of $25.00' hereby imposed, and no municipal
corporation, or county authorities shall levy or
collect an additional tax on the officials enumer-
ated above, either as a license, tax or fee. The
president or other officials herein named, of the
companies enumerated above, are required to
make a return as such to the tax receiver of the
county of his residence, as of January 1st, which
return shall be entered on the digest by said re-
ceiver. Acts 1923, Ex. Sess., pp. 20, 23.
§ 993(8). Abstractors of titles. — Upon each
person, firm or corporation engaged in the busi-
ness of making abstract of title to property in
cities of 20,000 inhabitants or over, $100.00; in
cities between 10,000 and 20,000 inhabitants,
$50.00; in cities and towns of less than 10,000 in-
habitants, $25.00. Provided, This tax shall not
be required of attorneys at law who have paid
the professional tax required of them by § 993(7)
Acts 1923, Ex. Sess., pp. 20. 23.
§ 993(9). Advertising agents. — Upon each per-
son, firm or corporation conducting the business,
of an advertising agency using other means than
billboards, $50.00; upon each person, firm or cor-
poration conducting the business of advertising,
by signs painted, pasted or printed on billboards
or other places where space is leased, rented or
sold, in each county where located, fifty cents for
each location, and a location is defined to be 75
lineal feet or fractional part thereof; and Provided
further, That before painting or posting such lo-
cations or fractional part thereof, it shall be the
duty of the person or persons so advertising to
register with the ordinarv and tax collector of
[200]
§ 993(10)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(17)
said county as required by law, and in case of
any increase of advertising the ordinary shall in
each instance be notified as to the number of lo-
cations. Acts 1923, Ex. Sess., pp. 20, 24.
§ 993(10). Bill distributors. — Upon all bill dis-
tributors and parties engaged in the business for
profit in towns or cities, $25.00. Acts 1923, Ex.
Sess., pp. 20, 24.
§ 893(11). Collecting, commercial and mercan-
tile agencies. — Upon each person, firm or corpor-
ation engaged in business as a collecting, com-
mercial, mercantile, or any other agency of like
character, $200.00 in every county in the State
where they have an office or branch office. Acts
1923, Ex. Sess., pp. 20, 24.
Application to N on- Residents. — The tax required in a sim-
ilar section of the Act of 1918, of each person, firm, or cor-
poration, engaged in business as a collecting, commercial,
mercantile or other agency of like character, in every
county in this State, applies alike to persons, firms, and
corporations resident and non-resident. Assets Realization
Go. v. Lewis, 150 Ga. 301, 103 S. E- 463.
§ 993(12). Detective agencies. — Upon each per-
son, firm or corporation operating a detective
agency, or doing detective work for hire or com-
pensation, for each office established in this State.
in or near cities or towns of 25,000 or more inhab-
itants, $200.00; in or near cities or towns from
10,000 to 25,000 inhabitants, $50.00; and in or
near cities or 'towns of less than 10,000 inhab-
itants, $25.00 Acts 1923, Ex. Sess., pp. 20, 24.
§ 993(13). Teachers' agencies. — Upon each per-
son, firm or corporation conducting a teachers'
agency or bureau, $25.00 in each county where it
has an office. Acts 1923, Ex. Sess., pp. 20, 24.
§ 993(14). Amusement parks. — Upon each per-
son, firm or corporation running, leasing or op-
erating an amusement park, other than baseball,
football or bicycle parks, hereinafter mentioned,
where two or more amusement devices, resorts,
or attractions are operated, and, an admission fee
is charged for any one or more of the exhibits,
resorts or attractions, $250.00. Provided, This
paragraph shall not be construed to exempt or
relieve any individual device, resort, amusement
or attraction located in said park from paying any
specific or license tax herein imposed. Acts
1923, Ex. Sess., pp. 20, 24.
As to baseball, football and bicycle parks, see § 993 (31).
§ 993(15). Athletic clubs, etc. — Upon every
athletic club, and upon every association or per-
son giving boxing or sparring or wrestling ex-
hibitions where an admission of 50 cents to $1.00
is charged, $50.00 for each exhibition; where ad-
mission charged is $1.00, to $1.50, $100.00; and
where the admission charged is $1.50 and over,
$200.00 for each exhibition. Acts 1923, Ex. Sess.,
pp. 20, 25.
§ 993(16). Auctioneers. — Upon each and every
auctioneer selling jewelry by auction in this
State, $200.00 in each county in which he con-
ducts said business.
Upon each and every auctioneer selling junk by
auction in this State, the sum of $100.00 in each
county in which he conducts said business.
Upon each and every auctioneer selling furni-
ture and household goods by auction in this
State, "the sum of $100.00 in each county in which
he conducts said business.
Upon each and every auctioneer selling live
stock, farm implements and produce by auction
in this State, the sum of $25.00 in each county in
which lie conducts said business. Provided,
This shall not apply to co-operative selling or to
producers of live stock from selling same.
Upon each and every non-residential real estate
auctioneer, the sum of $100.00 in each county in
which he conducts said sale. Each and every
resident real estate auctioneer shall pay the sum
of $50.00 in each county in which he conducts
said sale. At the time he registers with the ordi-
nary of the county, before paying the tax, every
auctioneer must specify the kind and style of sale
he intends to conduct.
Provided, This Section shall not apply to sher-
iff and the parties acting as auctioneers for ex-
ecutors, administrators, guardians and commis-
sioners conducting sales by virtue of the order
of any court of this State. Acts 1923, Ex. Sess.,
pp. 20, 25.
As to additional tax on real estate brokers selling at
auction, see § 993 (39).
Effect of Failure to Pay. — An auctioneer may sue and
recover his fee for auctioning property, although he may
not have paid the occupation tax and registered as pro-
vided in the Civil Code (1910), §§ 923, 978. Davis v. Boyd
Co., 143 Ga. 600, 85 S. E. 752. See note to § 993 (130).
§ 993(17). Automobile and truck dealers.— Up-
on every agent of, upon every dealer in, and upon
every person soliciting orders for retail sale of
automobiles or trucks, not including wholesale
dealers or distributors soliciting or canvassing for
local dealers, the sum set out below, viz.: In each
county with a population of less than 20,000,
$25.00; in each county with a population of be-
tween 20,000 and 30,000, $55.00; in each county
with a population of between 30,000 and 50,000,
$85.00; in each county with a population between
50,000 and 75,000, $110.00; in each county with a
population between '75,000 and 100,000 $165.00;
in each county with a population between 100,000
and 150,000, $220.00; in each county with a popu-
lation exceeding 150,000, $275.00. Provided, how-
ever, That nothing in this Act shall conflict with
the provisions fixing a license upon exclusive deal-
ers in used cars. Such dealer, agent, or solicitor
selling or offering for sale automobiles or trucks
at retail, shall be required to pay one license fee
only in each county, so as to provide that all per-
sons soliciting orders, or selling automobiles, or
trucks at retail, shall pay a license to become a
dealer or agent, and such license shall entitle such
dealer to sell any make or makes of new or second-
hand automobiles or trucks, and shall entitle said
dealers to operate in connection with said busi-
ness, a service station, in said count}- in which
said license is paid; and dealer having paid such
tax to be allowed any number of employees for
the purpose of selling cars within the county
wherein such tax has been paid. Acts 1923, Ex.
Sess., pp. 20, 26; 1924, p. 22.
Probable Constitutionality. — Subsection 12 of § 2 of the
general tax act of 1918 similar to this and the following
section, is not unconstitutional and invalid because the class-
ification of the dealers in automobiles there made was
arbitrary, discriminatory, or unreasonable. Adams Mo-
tor Co. v. Cler, 149 Ga. 818, 102 S. E. 440. See Wright v.
Hirsch, 155 Ga. 238, 116 S. E. 799.
There is no merit in the contention that the classifica-
tion in the Act of 1918 was arbitrary, discriminatory, and
unreasonable because of the provision permitting any per-
son who has paid the tax to resell any automobile or ve-
hicle taken in exchange for an automobile, without the
[201]
§ 993(18)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(31)
payment of an additional tax. Adams Motor Co. v. Cler,
149 Ga. 818, 102 S. E. 440.
City Tax.— In view of the fact that the plaintiff had
paid a tax under this section, a city occupation tax of
$200, levied upon them under ordinance was excessive and
void. Huguley-McCulloh Auto Co. v. La Grange, 159
Ga. 352, 125 S. E. 799.
One Tax in Each County.— Under § 924 of the Civil
Code, every dealer in automobiles is required to pay one
tax in each county in which he operates. Moore v. State,
148 Ga. 457, 97 S. E. 76; Moore v. State, 22 Ga. App. 797,
97 S. E. 458.
§ 993(18). Dealers in used cars. — Upon every
person, firm or corporation dealing exclusively
in used automobiles or trucks, or second-hand
automobiles or trucks, the following sums, viz.:
In each county with a population of less than
20,000, $25.00; in each county with a population
over 20,000 and not over 50,000, $50.00; in each
county with a population exceeding 50,000,
$100.00. Acts 1923, Ex. Sess., pp. 20, 26.
§ 993(19). Dealers in Automobile tires or ac-
cessories.— Upon every wholesale dealer in au-
tomobile tires or automobile accessories of any
kind whatsoever, the sum of $100.00 for each
place of business, and upon every retail dealer
the sum of $10.00 for each place of business. Acts
1923, Ex. Sess., pp. 20, 27.
Tax on Occupation. — Each person keeping- automobiles
for hire in cities of more than 35,000 inhabitants is sub-
ject to pay a specific and occupation tax under the gen-
eral tax act of 1918 as herein required. Harris v. Vin-
ing, 150 Ga. 631, 104 S. E. 424.
§ 993(20). Automobile schools. — Upon all au-
tomobile schools, $10.00 in each county. Acts
1923, Ex. Sess., pp. 20, 27.
§ 993(21). Automobile assembling plants. —
Upon every agent or representative of any for-
eign or non-resident corporation said agent or rep-
resentative having an office in this State, opening
an automobile assembling plant, $300.00 in each
county. Acts 1923, Ex. Sess., pp. 20, 27.
§ 993(22). Automobile truck assembling plants.
— Upon each person, firm or corporation oper-
ating an automobile truck assembling plant,
$300.00 in each county. Acts 1923, Ex. Sess.,
pp. 20, 27.
§ 993(23). Automobile garages. — ^Upon each per-
son, firm or corporation carrying on the business
of operating garages, either for storage or repair-
ing automobiles, in cities of more than 35,000 in-
habitants, $75.00; in cities between 20,000 and
35,000 inhabitants, $50.00; in cities between
10,000 and 20,000 inhabitants, $25.00; in cities and
towns of 1,000 to 10,000 inhabitants, $15.00; in
cities and towns of less than 1,000 inhabitants,
$5.00; and persons operating such garages within
one mile of the limits of all incorporated cities,
$5.00. Acts 1923, Ex. Sess., pp. 20, 27.
§ 993(24). Cars operated for hire. — Upon each
person, firm or corporation, operating or keep-
ing automobiles for hire, whether in connection
with a garage or not, a tax according to the fol-
lowing scale, whether in or outside of the cor-
porate limits of any city or town, viz. : for each
automobile so operated in or near towns or cit-
ies of population of not over 1,000, $5.00; of pop-
ulation from 1,000 to 5,000, $10.00; of population
from 5,000 to 15,000, $15.00; of population from
15,000 to 30,000, $20.00; of population from
30,000 to 50,000, $25.00; of population from 50,000
and over, $40.00. Provided, however, these taxes
shall not. be required of operators or keepers of
automobiles for hire, when such automobiles are
used over or are operated upon a fixed or uniform
route, and in such cases the schedule of these
shall be as follows: Upon every person, firm or
corporation, operating automobiles for transpor-
tation of passengers upon a regular fixed route,
commonly known as jitneys, and for a uniform
fare of not more than ten cents the following
amounts: for a five-passenger car or less, $15.00
per annum; and for every car carrying more than
five passengers, $25.00 per annum. Upon each
person, firm or corporation operating or keeping
for hire automobiles commonly known as "Drive-
it-yourself" business, or automobiles without driv-
ers for hire, $150.00 per year for each place of
business. Provided, however, that the tax fixed
herein shall not exceed $10.00 for each car op-
erated. Acts 1923, Ex. Sess., pp. 20. 27; 1924, pp.
22, 23.
§ 993(25). Motor busses. — Upon every person,
firm or corporation operating a motor bus for
the transportation of passengers upon a regular
fixed route between cities or towns, $25.00 for
each bus. Provided, That no municipal corpora-
tion or county authority shall levy or collect an
additional occupation tax on persons, firms or
corporations operating motor busses. Every
such person, firm or corporation is required to
register with the ordinary and pay the tax herein
provided to the tax collector of the county of his
residence. Acts 1923, Ex. Sess., pp. 20', 28.
§ 993(26). Awning or tent makers. — Upon all
awning or tent makers, $15.00 in each county.
Acts 1923, Ex. Sess., pp. 20, 28.
§ 993(27). Barbers' schools. — Upon every bar-
ber school, $15.00 in each county. Acts 1923,
Ex. Sess., pp. 20, 28.
§ 993(28). Barber shops. — Upon every barber
shop the sum of $5.00 for each chair in use ex-
cept that in cities and towns of less than 5,000
the amount shall be $2.50 for each chair in use.
Acts 1923, Ex. Sess., pp. 20, 28.
Constitutionality. — The similar provision of the Act of
1921 was held constitutional in Price v. Richardson, 159
Ga. 299, 125 S. E. 449.
§ 993(29). Barber supplies. — Upon all agents
for barber supplies, $50.00 for each place of busi-
ness. Acts 1923, Ex. Sess., pp. 20, 29.
§ 993(30). Baths. — Upon all persons, firms or
corporations operating all Turkish baths, Rus-
sian or vapor baths, $50.00 for each place of busi-
ness. Acts 1923, Ex. Sess., pp. 20, 29.
§ 993(31). Ball and racing parks. — Upon each
person, firm or corporation owning, leasing or op-
erating any park, or place where baseball, foot-
ball, or other similar game is played, or where
automobile, motorcycle, horse or bicycle races or
contests are held, and where admission fees are
charged, in the cities of more than 50,000 inhab-
itants, or within five miles thereof, $200.00; in
cities with over 20,000 and not over 50,000, or
within five miles thereof, $100.00; in cities with
over 10,000 and not over 20,000, or within five
miles thereof, $50.00; in cities and towns of less
than 10,000, or within five miles thereof, $20.00.
Provided, That this tax shall apply only to those
[202 ]
§ 993(32)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(41)
parks and places wherein professional games are
played or professional contests are held. Acts
1923, Ex. Sess., pp. 20, 28.
As to exemption when operated by confederate veteran,
see § 996.
§ 993(32). Bagatelle, billiard, jenny lind, pool
or tivoli tables. — Upon each person, firm or cor-
poration operating for public use and charging
for the use thereof, any billiard, bagatelle, jenny
lind, pool or tivoli tables, for each table, a tax
according to the following scale, viz.: In cities
of 100,000 inhabitants or more,' $100.00; in cities
of not less than 50,000, and not more than 100,000
inhabitants, $ 75.00; in cities of not less than
25,000 and not more than 50,000 inhabitants,
$50.00; in cities of not less than 10,000 and not
more than 25,000 inhabitants, $30.00; in cities or
towns of less than 10,000 inhabitants, $20.00.
Acts 1923, Ex. Sess., pp. 20, 29; 1924, pp. 22, 24.
§ 993(33). Bagatelle, billiard, pool, etc., tables
for sale or hire. — Upon each person, firm or cor-
poration who keeps or holds for hire or for sale,
for himself or as agent for resident or non-resi-
dent owner, any bagatelle, billiard, Jenny Lind,
pool or tivoli table or other table of like character,
for each place of business in this State, $100.00.
Acts 1923, Ex. Sess., pp. 20, 29.
Character of Tax. — The tax provided for in the Civil
Code, § 928, to be collected from every keeper, owner,
or lessee of pool or billiard tables kept for public use, is
an occupation tax, and not a tax on property. Atkinson
v. Brunswick-Balke-Collender Co., 144 Ga. 694, 87 S. E.
891.
§ 993(34). Bond makers. — Upon each person,
firm, or corporation engaged in the business of
procuring or signing bonds, or depositing collat-
eral in lieu of bonds for compensation (except
duly licensed bonding companies, and duly au-
thorized officers of this State who are required to
give bond to qualify as such officers), $50.00 in
each county. Acts 1923, Ex. Sess., pp. 20, 30.
Editor's Note. — A similar provision of law in the Act
of 1921 [for explanation of former acts on subject, see
note to 993 (1)] was held unconstitutional by operation
of law (equal division of judges) in that the exemption
of duly licensed bonding companies made an arbitrary dis-
crimination. See Pate v. Foss, 157 Ga. 579, 584, 122 S.
E. 238.
Since the Act of 1918 placed a per cent, premium tax
upon such companies (Acts 1918, p. 80, § 12), it was prob-
ably not subject to the same objection. As to whether
the unconstitutionality of the Act of 1921 and consequently
the Act of 1923 revives the similar provisions of the Act
of 1918, quaere. See in this connection, Jones v. State,
151 Ga. 502, 506, 107 S. E. 765.
Effect upon Criminal Bond Act, §§ 953 (1) et seq. — It was
held in Jackson v. Beavens, 156 Ga. 71, 118 S- E- 751 that
the provision in the Act of 1921 similar to this section did
not repeal § 953 (1) et seq of the Penal Code.
§ 993(35). Book agents. — Upon each agent or
canvasser for books, maps, or lithographic prints,
in each county in which he shall do business $5.00.
Provided This shall not apply to bona fide stu-
dents earning their way through school or col-
lege, or persons selling Bibles. Acts 1923, Ex.
Sess., pp. 20, 30.
§ 993(36). Stock and bond brokers. — Upon
each person, firm or corporation dealing in bonds
or stocks, either exclusivelj- or dn connection with
other business, the sum of $100.00 for each town
or city in which such persons, firms or corpora-
tions maintain an office. Acts 1923, Ex. Sess., pp.
20, 31.
§ 993(37). Merchandise, Brokers and Com-
mission merchants. — Every person, firm or cor-
poration doing business in this State, and who re-
ceives or distributes provisions or merchandise, in-
cluding flour, hay, grain, coal, coke, lumber, 'brick,
or any other article of merchandise shipped to
such person, firm or corporation, for distribution
on account of the shippers, or who participates in
the profits ensuing from or occuring out of sales of
such provisions or merchandise as above described,
or who invoices such sales, or who collects money
therefor, shall be deemed a broker. Every person,
firm or corporation buying or selling for another
any kind of merchandise or commission, shall be
deemed a commission merchant. Every person,
firm or corporation shall pay for the privilege of
transacting the business of a commission mer-
chant or broker in merchandise, in cities of 40,000
or more inhabitants, $50.00; in cities of less than
40,000 inhabitants, $25.00. Acts 19.?:;, Ex. Sess.,
pp. 20, 30.
Intrastate Business. — Where resident brokers, salesmen,
or commission merchants represent principals wholly out-
side of the State and some wholly within the State, and
on the business done within the State the salesmen and
brokers obtain orders from principals within the State,
and the goods so purchased are delivered by the principals
in the State directly to the purchaser within the State,
and the principals collect the price thereof from the pur-
chaser, such brokers, etc., doing a domestic or intrastate
business, are subject to a reasonable business tax im-
posed by the legislature. Crump v. McCord, 154 Ga. 147,
113 S. E. 534; Raley & Bros. v. Richardson, 154 Ga. 140,
113 S. E. 531.
Interstate Business. — Where a salesman or commission
merchant in this State, acting as agent of a principal re-
siding in another State, solicits and takes orders for
goods for a prospective purchaser in this State, and ten-
ders such order to the principal in another State, who
ships the goods directly to the purchaser in this State
in the original package, and receives from the purchaser
in this state the price of the goods, such salesman or com
mission merchant is engaged in interstate commerce, and
such business can not be taxed as being a burden on in-
terstate commerce. Crump v. McCord, 154 Ga. 147, 113
S. E. 534.
§ 993(38). Printing brokers. — Upon all brokers,
agents or agencies for printing, bookbinding, or
lithographing, $25.00 in each county in which such
broker or agent has an office or place of business.
Acts 1923, Ex. Sess., pp. 30, 30.
§ 993(39). Real estate brokers. — Upon each
person, firm or corporation engaged in the busi-
ness of buying or selling real estate on commis-
sion, or as agents, renting real estate, in cities of
50,000 or more, $50.00; in cities of 25,000 to 50,000
inhabitants, $30.00; in cities from 10,000 to 25,000
inhabitants, $20.00, and in cities or towns of less
than 10,000 inhabitants, $15.00. And if such per-
son shall engage in auctioneering or selling prop-
erty at public outcry or by auction sales, he shall
also be liable for and required to pay the tax re-
quired of real estate auctioneers by Section 993-
(16) to wit: $50.00 in each county. Acts 192:;.
Ex. Sess., pp. 20, 31.
See note to § 993 (130).
§ 993(40). Railroad and theatre ticket brokers.
— Upon each railroad and theatre ticket broker
or scalper, when not prohibited, by law, operat-
ing in cities of more than 10,000 inhabitants,
$100.00; in cities or towns of less than $10,000 in-
habitants, $50.00. Acts 1923, Ex. Sess., pp. 20, 31.
§ 993(41). Burglar alarm, automatic sprinkler
and fire apparatus. — Upon all burglar alarm com-
panies, and upon all automatic sprinkler com-
[ 203
§ 993(42)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(52)
panies, or agents therefor, the sum of $25.00 for
each agency or place of business in each county.
Upon each dealer in fire engines and apparatus or
either of them, $100.00 for each place of business.
Acts 1923, Ex. Sess., pp. 20, 31.
§ 993(42). Dealers in playing cards. — Upon
each dealer in playing cards, $10.00 for each place
of business. Acts 1923, Ex. Sess., pp. 20, 31.
§ 993(43). Card writing stands. — Upon all card
writing, cutting or engraving stands, $5.00 for
each stand in each county. Acts 1923, Ex. Sess.,
pp. 20, 31.
§ 993(44). Carpet and rug cleaning. — Upon all
carpet and rug cleaning companies not connected
with laundries, $10.00 for each place of business.
Acts 1923, Ex. Sess., pp. 20, 31.
§ 993(45). Cemetery companies, agencies, etc. —
Upon all cemetery companies, agencies, offices,
etc., $50.00 in each county. Acts 1923, Ex. Sess.,
pp. 20, 31.
§ 993(46). Circuses. — Upon each circus com-
pany or other company or companies giving
such exhibition beneath or within a canvas inclos-
ure, advertised in print or parade in any manner
whatsoever, as a circus, menagerie, hippodrome,
spectacle or show implying a circus, in or near
cities of 40,000 or more inhabitants, for each day
it may exhibit, $500.00; in or near cities between
20,000 and 40,000 inhabitants, for each day it may
exhibit, $300.00; in or near cities between 5,000
and 20,000 inhabitants, for each day that it may
exhibit, $250.00; in or near cities or towns of less
than 5,000 inhabitants, for each day it may ex-
hibit, $100.00; in or near cities or towns of less
than 1,000 inhabitants, for each day it may exhibit
in the State of Georgia, $100.00. \cts 1923, Ex.
Sess., pp. 20, 32.
Editor's Note. — The last clause of this section is meaning-
less, cities and towns with a population less than one
thousand have also a population of less than five thousand,
and the tax is fixed at one hundred dollars for both classes.
It is probable that the legislature intended to make the
tax smaller in the last clause of the section — possibly fifty
dollars.
§ 993(47). Side shows. — Upon each side show
accompanying a circus company in or near cities
of 5,000 population or more, $50.00; and. in or near
all cities or towns of less than 5,000 population,
$25.00. Acts 1923, Ex. Sess., pp. 20, 32.
§ 993(48). Clipping bureaus.— Upon each clip-
ping bureau, $10.00. Acts 1923, Ex. Sess., pp.
20, 32.
§ 993(49). Coal, coke, wood and lumber. — Up-
on each person, firm or corporation dealing in
coal, coke, wood or lumber, or coal and coke,
whether for themselves or as agents or as brok-
ers, in cities of more than 1,000 inhabitants, and
not more than 10,000 inhabitants, $10.00; in cities
of more than 10,000 and not more than 20,000 in-
habitants, $50.00; in cities of more than 20,000 in-
habitants, $100.00; Provided, That dealers in
wood only shall pay a tax of $10.00. Said tax pay-
able for each place of business. Acts 1923, Ex.
Sess., pp. 20, 32; 1924, pp. 22, 25.
§ 993(50). Concerts, shows and exhibitions. —
Upon all concerts, shows and exhibitions charg-
ing an admission, not otherwise herein taxed, in
or near cities of less than 5,000 inhabitants, $25.00;
in or near cities of more than 5,000 and not more
than 20,000, $50.00; in or near cities of more than
20,000 and not more than 50,000, $75,00; in or
near cities of more than 50,-000, $100.00 for each
day. Provided, This section shall not apply to
exhibitions given by local performers nor to ex-
hibitions the entire proceeds of which are for
charitable, benevolent purposes, nor to entertain-
ments commonly known as Chautauquas. Pro-
vided further, That this section shall not apply to
histrionic, dramatic and operatic performances
given in regularly licensed theatres and opera
houses, but upon each such theatre or opera house
in towns of less than 2,000 inhabitants, $2.50 per
month; in cities from 2,000 to 5,000 inhabitants,
$4.00 per month; in cities from 5,000 to 10,000 in-
habitants, $7.00 per month; in cities from 10,000
to 25,000 inhabitants, $10.00 per month; in cities
of over 25,000 inhabitants, $12.50 per month. Acts
1923, Ex. Sess., pp. 20, 32.
§ 993(51) Construction companies. — Upon each
person, firm or corporation accepting a contract
to construct bridges, dams, waterworks, roads,
railroads, street paving, cantonments, or other
structures or works of a like public nature, in each
county where doing business, one-tenth of one
per cent of the contract price, then one-tenth of
one per cent upon cost of such work, and Pro-
vided, That the aggregate tax paid by any one
contractor or firm or corporation under this sec-
tion shall not exceed the sum of $500.00 in any
one county in any calendar year. Acts 1923, Ex.
Sess., pp. 20, 32.
§ 993(52). Contractors. — Any person, firm or
corporation accepting orders or contracts for do-
ing any work on or in any building, or structure,
requiring the use of paint, stone, brick, motar,
wood, cement, structural iron and steel, sheet
iron, galvanized iron, metallic piping, tin, lead,
electric wiring or other metal, or any other build-
ing, or who shall accept contracts to do any pav-
ing or curbing on sidewalks or streets, public or
private property, using asphalt, brick, stone, ce-
ment, wood or any composition, or who shall ac-
cept an order for, or contract to excavate earth,
rock or other material, for foundation or any
other purpose, or who shall accept an order or
contract to construct any sewer of stone, brick,
terra cotta or other material, shall be deemed to
be a contractor. Every contractor shall, on the
first day of January in each year, procure from the
ordinary in the county in which he has his office
a license to carry on the business of a contractor.
Provided, That if such contractor has no office
in this State then he may procure such license
from the ordinary of the county where he con-
ducts his business. Every such contractor shall
pay for the privilege of transacting business in
this state, $10.00. provided the amount of all or-
ders or contracts accepted do [does] not exceed
$10,000 and $1.00 additional for each $1,000.00 of
orders or contracts accepted above $10,000; this to
be paid as follows: $10.00 to be paid at the beginning
of the year or at the commencement of business
within any year, and thereafter returns to be made
at the end of the quarter to the tax collector,
showing the amount of orders or contracts ac-
cepted during the quarter and the amount of tax
204 ]
§ 993(53)
AD VALUKJiM, br.fc.UlJFlU AINU ULLUrAllUiN l^iS.ri.S
§ ays^O
due upon the orders or contracts above $10,000 to
be paid at the end of each quarter with the mak-
ing of this report. Provided, The provisions of
this section shall not apply in cases where the
contract prices does not exceed the sum of $500.00,
and where the contractor does not employ more
than two assistants. Acts 1923, Ex. Sess., pp.
20, 33.
§ 993(53). Domestic corporations. — All corpo-
rations incorporated under the laws of Georgia
shall, except those that are not organized for pe-
cuniary gain or profit, and those that neither
charge nor contemplate charging the public for
services rendered, in addition to all other taxes
now required of them by law, are hereby required
to pay each year annual license or occupation tax
as specified in the following scale:
Corporations with capital not exceeding $10,-
000, $10.00.
Corporations with capital over $10,000, and not
over $25,000, $15.00.
Corporations with capital over $25,000, and not
over $50,000, $20.00.
Corporations with capital over $50,000, and not
over $75,000, $30.00.
Corporations with capital over $75,000, and not
over $100,000, $50.00.
Corporations with capital over $100,00, and not
over $300,000, $100.00.
Corporations with capital over $300,000, and
not over $500,000, $200.00.
Corporations with capital over $500,000, and not
over $1,000.00, $300.00.
Corporations with capital over $1,000,000, and
not over $2,000,000, $500.00.
Corporations with capital over $2,000,000, and
not over $3,000,000, $600.00.
Corporations with capital over $3,000,000, and
not over $4,000,000, $700.00.
Corporations with capital over $4,000,000, and
not over $5,000,000, $800.00.
Corporations with capital over $5,000,000 and not
over $6,000,000, $900.00.
Corporations with capital over $6,000,000,
$1,000.00.
Tax required by this paragraph to be paid to the
tax collector of the county where such corporation
has its home office of business, and the payment of
this tax will relieve such corporations from the pay-
ment of said tax in any other county in which it
does business, and to that end the tax collector shall
furnish such duplicate receipts as may be needed
for authorized agents of the corporation in other
counties of this State. Acts 1923, Ex. Sess. pp.
20, 34.
§ 993(54). Foreign corporations. — Upon every
agent or representative of any foreign or non-resi-
dent corporation, said agent or representative hav-
ing a place of business or office in this State, in
addition to all other taxes now required of them by
law shall be, and they are hereby, required to pay
each year an annual license or occupation tax fixed
in accordance with the capital stock of the cor-
poration represented by them, as specified in the
preceding paragraph of this section (wherein is
fixed the license or occupation tax required of cor-
porations chartered under the laws of Georgia), per
[20
schedule or scale therein set forth. Provided, That
if such foreign or non-resident corporation shall
pay to the Comptroller-General of this State the
amount of the occupation or license tax prescribed
as per said schedule for resident corporations, then
the agents of such foreign or non-resident corpora-
tions shall be relieved from said occupation tax.
And to this end said foreign corporations shall reg-
ister their name, capital stock, and the names of
their agents with the Comptroller-General at the
beginning of each year, and upon said license
or occupation tax being paid, it shall be the duty of
the Comptroller-General to furnish said corpora-
tion a certificate or duplicate receipt for each agent
that said tax has been paid, and the presentation oi
such certificate or duplicate receipt by such agent to
the tax collector of his county shall be sufficient
evidence of such payment and authorize the agent
to be relieved of said tax. The payment of this tax
shall not be construed so as to relieve the corpora-
tion or agent of any other license or occupation tax
whatever. Provided, That this and section 993(53)
shall not apply to insurance companies, or to sewing
machine companies, or to companies doing or
operating a real estate loan business as mentioned
and described in section 993(81), which are sepa
rately taxed by other provisions of this Act. Pro-
vided, further, That all returns by corporations, res
ident or non-resident, must be made under oath,
and when any corporation paying this license or
occupation tax requires or demands more than two
duplicate certificates for agents, then such corpora-
tion shall be required to pay an additional fee oi"
$1.00 for each duplicate certificate or receipt over
and above the first two mentioned. Acts 1923, Ex.
Sess., pp. 20, 35.
Voluntary Payment.- -Payment of a license tax pre-
scribed in the similar provision of the Act of 1918, by an
agent or representative of a foreign corporation engaged
wholly in interstate commerce, upon demand therefor by
the Comptroller- General of this State, is not such a vol-
untary payment of such license tax as will prevent an
action for damages against the Comptroller- General in
his individual capacity for the exaction of payment thereof,
said act making the failure of such agent or representa-
tive to register, or after having registered his failure t<>
pay said license tax, a misdemeanor upon conviction of
which he can be punished as prescribed. Dennison Mfg.
Co. v. Wright, 156 Ga. 789, 120 S. E. 120.
§ 993(55). Dance halls. — Upon each person or
persons operating public dance halls where dancing
is permitted or taught for hire, $100.00 for each
place of business. Acts 1923, Ex. Sess., pp. 20, 37.
§ 993(56). Bowling alleys, amusement devices,
etc. — Upon each person firm or corporation operat-
ing for gain a bowling, box-ball, ten-pin alley or
alley of like character, shooting galleries, or booth
where firearms are used for firing at a target, and
upon persons operating for gain any table, stand,
machine or place for performance of games not
prohibited by law, and any rack or booth or place
for pitching or throwing rigs at canes, knives, or
other things of value, or any table or stand for roll-
ing balls for play or for sale or disposition of prizes,
for each stand, table, alley, gallery, machine, rack,
booth or other place put in use at each place oi"
business in this State, the sum of $50.00. Acts 1923,
Ex. Sess., pp. 20, 37.
§ 993(57). Skating rinks. — Upon the owner,
manager keeper or lessee of any skating rink in this
5 1
§ 993(58)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(69)
State, where any fee or charge is made for admis-
sion, for the use of skates, or skating, in counties
having a population of more than 100,000 inhabit-
ants, the sum of $100.00; in counties of 50,000 and
not over 100,000, the sum of $50.00; in counties of
less than 50,000 population, the sum of $25.00 for
each place of business. Acts 1923, Ex. Sess., pp.
20, 37.
§ 993(58). Directories. — .Upon each person, firm
or corporation compiling a city directory or direc-
tories of any character, and selling or supplying the
subscription, the sum of $125.00. The above tax
shall not be construed to apply to 'telephone com-
panies issuing directories for use in the telephone
exchanges. Acts 1923, Ex. Sess., pp. 20, 37.
§ 993(59). Dog and pony shows. — Upon each
dog, pony or horse show, where 'the entire show is
exclusively an exhibition of trained dogs, ponies, or
horses and monkeys, or a combination of any of
them, beneath a tent, canvas or enclosure, where an
admission fee of fifteen cents or more is charged,
the sum of $50.00 for each day it may exhibit, and
upon such shows with an admission fee of less than
fifteen cents, the sum of $30.00 for each day it may
exhibit in this State. Acts 1923, Ex. Sess., pp. 20,
38.
§ 993(60). Dry cleaning. — Upon all persons,
firms or corporations engaged in dry cleaning,
$25.00 for each place of business. Provided, this
section shall not apply to laundries paying the tax
imposed by section 993(83) nor to pressing clubs
paying the tax imposed by section 993(61). Acts
1923. Ex. Sess., pp. 20, 38.
§ 993(61). Pressing clubs. — Upon each person,
firm or corporation operating a pressing club,
$5.00. Acts 1923, Ex. Sess., pp. 20, 38.
§ 993(62). Electrical contractors. — Upon all
electrical contractors, $10.00 for each county. Acts
1923, Ex. Sess., pp. 20, 38,
§ 993(63). Emigrant agents. — Upon each emi-
grant agent, and upon each employee of such
agents, doing business in this State, $1,000.00 for
each county in which such agents or employee may
do or offer to do business. Provided, That no emi-
grant agent or employee shall take from this State
or attempt to take from this State any person until
after first giving a bond to be accepted and approved
by the Commissioners of Commerce and Labor,
^conditioned to pay any valid debt owing by said
person to any citizen of this State. Acts 1923, Ex.
(Sess., pp. -20, 38.
Constitutionality. — The levy of such a tax did not amount
to such an interference with the freedom of transit, or of
contract, as to violate the Federal Constitution. Williams
v. Fears, 179 U. S. 270, 45 h. Ed. 186, 21 S. Ct. 128; S.
C, 110 Ga. 584, 35 S. F- 699.
Nor was the objection tenable that the equal protection
of the laws was denied because the business of hiring per-
sons to labor within the State was not subjected to a like
tax. Williams v. Fears, 179 U. S. 270, 45 I,. Fd. 186, 21
S. Ct. 128; S. C, 110 Ga. 584, 35 S. F. 699.
Definition. — An emigrant agent is one who is engaged in
hiring laborers in this State to be employed beyond the
limits of the State, and who makes that work his business
or occupation. Chambers v. State, 23 Ga. App. 1, 97 S.
F. 274; Williams v. Fears, 110 Ga. 584, 35 S. F. 699.
One who comes into this State and employs on his own
behalf laborers to work for him outside this State is not
an emigrant agent within the meaning of the law imposing
a tax upon such agents. Theus v. State, 114 Ga. 53, 39
S. F. 913.
§ 993(64). Employment agencies.— Upon all em-
ployment agencies or bureaus doing business in this
State, $50.00 for each county. Acts 1923, Ex. Sess.,
pp. 20, 38.
§ 893(65). Travelling horse traders or gypsies. —
Upon each company of travelling horse traders, or
travelling gypsies, or travelling companies or other
transients, travelling persons or firms, engaged in
trading or selling merchandise or live stock of any
kind, or clairvoyant, or persons engaged in fortune
telling or palmistry, $250.00, to be collected by the
tax collector in each county and distributed as
follows: To the county where collected, $125.00; to
the State, $125.00, which tax shall be collected in
each county where they carry on either kind of
business herein mentioned. This tax shall apply to
any person, firm or corporation who themselves, or
by their agents, travel through the State carrying
live stock and carrying with them cooking utensils
and live in tents, or travel in covered wagons, and
who may be a resident of some county or who re-
side without the State, and who are commonly
called travelling horse traders and gypsies, 'and
such persons or corporation shall be liable to pay
this tax. Such tax shall constitute a lien on any
live stock owned by such travelling persons or
firms. Provided, That no Confederate soldier,
indigent, or any other person, firm or corporation
shall be exempted from the tax provided under
this section. Provided, further, that this tax shall
not be required of bona fide residents of this State
who have paid the tax required in section 993(80).
Acts 1923, Ex. Sess., pp. 20, 38.
§ 993(66). Gasoline or oil trucks.— Upon each
person, firm or corporation selling oil or gasoline
from a wagon or truck, $10.00 for each wagon or
truck in each county. Acts 1923, Ex. Sess., pp. 20,
39.
§ 993(67). Insurance agents. — Upon each local
insurance agent doing business in this State, and
upon each and every solicitor or sub-agent for any
resident or non-resident company doing business in
this State, $10.00 for each county in which they
shall transact or solicit insurance business. Pro-
vided, This shall not apply to the agents of mutual
fire associations or companies operating soley on
mutual obligations. Acts 1923, Ex. Se^s., pp. 20, 49.
§ 993(68). Travelling, etc., agent of life, fire, ac-
cident, casualty, liability, fidelity or surety in-
surance companies. — Upon each and every travell-
ing or special or general agent, or manager of any
life, fire, accident, casualty, liability, fidelity or
surety insurance company conducting the business
of such companies in this State, $100,00, payable in
the county of the residence of the agent, and the
tax collector's receipt shall be his authority to go
into any other county without the payment of an
additional tax. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(69), Travelling, etc., agents of assessment,
etc., companies. — Upon each and every travelling
or special or general agent, or manager or superin-
tendent of any assessment life insurance company
or such benefit or accident insurance company or
live stock insurance company doing business in this
[ 206 ]
§ 993(70)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(79)
State, whether for a resident or non-resident com-
pany, $50.00, payable in the county of the residence
of the agent, as provided above for other insurance
companies. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(70). Adjustment bureaus. — Upon all ad-
justment bureaus employing adjusters a tax of
$50.00 for each person who adjusts any loss, said
tax payable in the county where the bureau is
located, and the receipt of the tax collector for the
payment of said tax shall authorize the person
named in the receipt to go into any county in the
State. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(71). Independent insurance adjusters. —
Upon each and every person who adjusts insur-
ance losses, not connected with an adjustment
bureau, $50.00, payable in the county of his res-
idence and the receipt of the tax collector shall be
his authority to do business in any part of the State.
Provided, That this tax shall not apply to local in-
surance agents who adjust losses without re-
muneration. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(72). Payment of taxes in advance. — The
license taxes imposed by sections 993(67) 993(71)
must be paid in advance by said agent or. agents to
the tax collector of 'the county of his residence be-
fore said agents shall be authorized to act as
agents for any such company. Provided, That the
railroad ticket agents selling accident tickets shall
not be deemed insurance agents in the sense of
this paragraph. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(72*/£). Payments to insurance commis-
sioner.— All special or occupation taxes imposed
upon the several classes of insurance agents under
the preceding sections shall be paid to the Insur-
ance Commissioner. The Insurance Commissioner
is hereby authorized to retain the sum of 5 per
centum of the amount collected or so much there-
of as may be necessary, annually, from the funds
collected from said insurance agents as special or
occupation taxes, before covering the same into
the Treasury, out of which he shall pay the ex-
penses of collecting same including clercial help
in the Insurance Department. Act 1925, p. 62.
§ 993(73). Ice cream dealers. — Upon each per-
son, firm or corporation manufacturing ice cream or
selling same at wholesale in or near cities of more
than 50,000 inhabitants, $100.00; in or near cities
from 20,000 to 50,000 inhabitants, $75.00; in or near
cities of from 10,000 to 20,000, $50.00; and in or near
cities of less than 10,000 inhabitants, $10.00. Acts
1923, Ex. Sess., pp. 20, 40.
§ 993(74). Non-resident bottlers. — Upon each
non-resident person, firm or corporation delivering
for sale by truck or trucks any carbonated bever-
ages in this State, $150.00. Acts 1923, Ex. Sess., pp.
20, 41.
§ 993(75). Itinerant practitioners. — Upon every
itinerant doctor, dentist, optician, optometrist,
verterinary surgeon, osteopath, chiropractor, or
specialist of any kind, doing business in this State,
$25.00 for each county in which they may practice
or do business. Provided, that if any one of said
itinerant specialists shall peddle or sell any drug,
medicine, remedy, appliance, spectacles, glasses or
profession, he or they shall be subject to the tax re-
quired of peddlers or travelling vendors of patent
proprietary medicine, nostrums, etc., by section
993(99), to wit: $50.00 in each county where they
may offer to sell such articles. Provided further,
That the provisions of this paragraph shall not ap-
ply to persons whose fixed place of business is in
any county of this State, and who have paid the
professional tax required by section 993(5). Acts
1923, Ex. Sess., pp. 20, 41.
Optician. — Section 960, corresponding to this section and
§ 946 [§ 993 (99)] are applicable where one who is an op-
tician and eye-specialist and is also a member of a firm
engaged in the business of manufacturing and selling eye-
glasses at a fixed place of business in the county in which
he resides and has his office, and who has complied with
the laws as to payment of taxes and registration of busi-
ness in that county, travels to other counties in the State,
stopping a short time in each at a place advertised by
him, at which he examines and tests eyes without charge
and takes orders for glasses to be made and delivered by
his firm, and sends to the firm the orders, with his pre-
scriptions for the glasses, and the firm sends the glasses
directly from its place of business to the persons ordering
them, who send the price of the glasses to the firm, or
in some instances pay it to him in person, though he does
not himself in any instance deliver the glasses at the time
or place of taking the order. Mott v. State, 16 Ga. App.
190, 84 S. E. 836.
§ 993(76). Junk dealers. — Upon each person,
firm or corporation engaged in the business of deal-
ing in junk in or near cities of over 50.000 inhabi-
tants, $100.00; in or near cities of from 10,000 to
50,000 inhabitants, $50.00; in or near cities of from
3,000 to 10,000 inhabitants, $25.00; in cities or towns
under 3,000, or within ten miles thereof, $10.00;
each junk dealer, his clerk, agent or employee, shall
keep a book, open to inspection, in which he shall
make entries of all railroad iron, brass, pieces of
machinery, plumbing materials, unused farm im-
plements, automobile parts, fixtures or accessories,
purchased by him, together with the name of the
party from whom purchased, and upon failure to
keep such books or record and produce it on de-
mand, the said dealer shall forfeit his license. Acts
1923, Ex. Sess., pp. 20, 41.
§ 993(77). Legerdemain and sleight of hand. —
Upon each exhibition of feats of legerdemain or
sleight of hand, or other exhibition and entertain-
ment of like kind, $25.00 in each county. Acts 1923,
Ex. Sess., pp. 20, 42.
§ 993(78). Lighting systems. — Upon each per-
son, firm or corporation selling, whether as manu-
facturer, agent or dealer in, any lighting system,
whether gas, gasoline or electrical, $25.00 in each
county. Acts 1923, Ex. Sess., pp. 20, 42.
§ 993(79.) Lightning rods. — Upon each person,
firm or corporation who may contract for or en-
gage in the business of fitting up or erecting light-
ning rods in this State, the sum of $50.00 for each
county in which he may contract for, or erect, or
put in place any lightning rod, or rods, upon any
structure or building therein, and it shall be the
duty of the tax collector to whom the tax is paid
to issue the person paying such tax a license re-
ceipt, showing such payment. Acts 1923, Ex. Sess.
pp. 20, 42.
Constitutionality. — The interstate-commerce clause of the
Federal constitution does not prohibit a State or one of
its subordinate political subdivisions from imposing a rea-
sonable occupation tax upon the business of "putting up
person engaged in such
Other goods, in Connection with the practice of his I or erecting lightning-rods," and
[207 ]
§ 993(80)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(91)
a business is subject to the tax, notwithstanding it appears
that the lightning-rods were sold by him as agent for a
non-resident manufacturer, under a contract which re-
quired the seller to install the lightning-rods. Browning
v. Waycross, 11 Ga. App. 46, 74 S. E. 564. See also Den-
nard v. State, 16 Ga. App. 135, 84 S. E. 592.
This is true without reference to whether the lightning-
rods shipped from another State directly to the purchaser
or are shipped as a part of a common mass with other
property of the same character to the agent of the seller
and distributed by him to the purchaser. Such a tax af-
fects only incidentally, and does not impose an unlawful
burden upon interstate commerce. Browning v. Waycross,
11 Ga. App. 46, 74 S. E- 564. See also, Dennard v. State,
16 Ga. App. 135, 84 S. E. 592.
§ 993(80). Live stock dealers. — Upon each per-
son, firm or corporation dealing in live stock, hav-
ing a fixed place of business in or near cities of
more than 50,000 inhabitants, $25.00; in or near
cities of from 10,000 to 50,000 inhabitants, $15.00;
in or near cities or towns of less than 10,000 in-
habitants, $10.00. Acts 1923, Ex. Sess. pp. 20, 42.
As to travelling horse traders, see § 993 (65).
§ 993(81). Loan agents. — Upon each person,
firm or corporation negotiating loans and charg-
ing therefor any fee, commission or salary, in
each county in which he or they may carry on
such business, the sum of $25.00. Provided, This
tax shall not be required of attorneys-at-law who
have paid the professional tax imposed by section
993(5) and who shall engage in negotiating loans
on collateral other than wages, time or salary.
Provided further, That this tax shall not be re-
quired of any person, firm or corporation in any
county in which its correspondents, agents, or
other local representative has paid said tax, or
otherwise complied with or conformed to this sec-
tion. Should such person, firm or corporation en-
gage in making or negotiating loans upon wages
or time, or the purchasing of salaries, the sum of
$100.00. Acts 1923, Ex. Sess., pp. 20, 42.
Constitutionality.— A corresponding provision of the Act
of 1921, the langauge of which was identical with the lan-
guage of this section, was held unconstitutional in Ewing
v. Wright, 159 Ga. 303, 125 S. E. 445, because the provision
exempting attorneys at law who have paid professional tax
prevents uniformity of taxation as required by § 6553. It
is apparent that this section is subject to the same objec-
tion.
§ 993(82.) Legislative agents. — Upon each per-
son registered under Acts 1911, Page 151 (Penal
Code, § 325a) the sum of $100.00. Acts 1923, Ex.
Sess., pp. 20, 43.
§ 993(83.) Laundries.— Upon each person, firm
or corporation operating a laundry or dyeing
establishment, $100.00 if employing ten or more
persons; $50.00, if employing five and not more than
ten persons; $25.00 if not employing more than
five persons. Acts 1923, Ex. Sess., pp. 20, 43.
As to tax on dry cleaners, see § 993 (60).
§ 993(84.) Cash registers. — Upon each manu-
facturer or wholesale dealer in, or agent for the
sale of any cash or account register, $100.00 for
each place of business in this State. Acts 1923,
Extra. Sess., pp. 20, 43.
§ 993(85.) Weighing scales. — Upon each manu-
facturer or wholesale or retail dealer in, or agent
for the manufacturer of any weighing scale, or
scales, for calculating weight or prices of com-
modities, $25.00 for each place of business in this
State. Acts 1923, Ex. Sess., pp. 20, 43.
§ 993 (8S.) Add;ng machines. — Upon every
manufacturer of, or wholesale or retail dealer in,
or agent for the sale of any adding or calculating
machine retailing for more than ten dollars,
$100.00 for each place of business in this State.
Acts 1910, Ex. Sess., pp. 20, 43.
§ 993(87.) Typewriters. — Upon every manufac-
turer of, or wholesale or retail dealer in, or agent
for the sale of any typewriter or typewriting ma-
chine, $100.00 for each place of business in this
State. Acts 1923, Ex. Sess., pp. 20, 43.
§ 993(88.) Slot machine.— Upon every machine,
punchboard or other device, operated, used or
kept in this State wherein is kept any article to be
purchased by depositing therein or paid there-
for any coin or thing of value, and for which may
be had any article of merchandise whatsoever,
where there is no chance incurred by reason
thereof and where the deposit of coin or other
thing of value does not exceed one cent per opera-
tion, $2.00 for each machine, punchboard or other
device for each county where kept, set up, used or
operated.
Upon each slot machine wherein may be seen
any picture or music may be heard by depositing
in said machine any coin or thing of value, and
each weighing machine or scale, and every ma-
chine making stencils by the use of contrivances
operated by slot wherein coin or other thing of
value is to be deposited or used, the deposit of
coin or other thing of value not exceeding one
cent per operation, $1.00 for each county where
kept, set up, used or operated. On all other ma-
chines described in this paragraph, charging more
than one cent per operation, $5.00 for each county
where .kept, set up, used or operated. Provided,
That not more than $100.00 shall be required of
any one person in any one county under this para-
graph. Provided, further, That no machine de-
scribed in this paragraph shall be subject to more
than one tax. Acts 1923, Ex. Sess., pp. 20, 43.
§ 993(89.) Bicycle dealers. — Upon every bicycle
dealer selling or dealing in bicycles, either at
wholesale or retail, for themselves, or upon com-
mission, or consignments, $10.00 for the fiscal
year or part thereof. Dealers selling bicycles at
more than one place shall pay license for each
place of business. All unsold bicycles belonging
to dealers shall be liable to seizure and sale for
payment of such tax. Acts 1923, Ex. Sess., pp.
20, 44.
§ 993(90.) Motorcycle dealers. — Upon every
person, firm or corporation selling or dealing in
motorcycles or motor attachments for hicycles,
whether in connection with the business of selling
bicycles or automobiles or otherwise, $25.00 for
each place of business. Acts 1923, Ex. Sess., pp.
20, 44.
§ 993(91.) Manufacturers of and dealers in ma-
chinery and implements. — Upon every manufac-
turer of reaping, mowing, binding, or threshing
machines, gas, electrical or oil engines, agricul-
tural machinery propelled by gas, and road build-
ing machinery propelled, by gas or oil, culverts,
road machines and road graders, selling or dealing
in such machinery by itself or its agents in this
State, and all wholesale and retail dealers in the
above mentioned machinery, selling such ma-
chinery manufactured by companies that have not
[208
§ 993(92)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(99)
paid the tax thereon named, shall pay $100.00 an-
nually to the Comptroller-General at the time of
commencement of business, same to be known as
a license fee for the privilege of doing business in
this State. All companies and others paying this
license fee shall, at the time of payment, furnish
the Comptroller-General with a list of all agents
authorized to sell the aforesaid machinery of
their manufacture, or under their control, and
shall pay to said Comptroller-General the sum of
$10.00 for each of said agents for the fiscal year
or fractional part thereof for each county in
which the said agents may do business; upon the
payment of $10.00 the Comptroller-General shall
issue to each of said agents a certificate of author-
ity to transact business in this State. Before com-
mencing business in this State all such agents
shall be required to register their names with the
ordinaries of those counties in which they intend
to do business, and shall exhibit to said ordinaries
their license from the Comptroller-General; whole-
sale and retail dealers in the above mentioned ma-
chinery shall be required to pay tax provided
herein for manufacturers of the above machines
sold by them unless said manufacturers have paid
the tax required by this Act. All .unsold ma-
chinery belonging to manufacturers, dealers, or
other agents, or in their possession or the posses-
sion of others, shall be liable to seizure and sale
for the payment of such fees, license or tax. None
of the provisions of this section shall apply to li-
censed autioneers selling second-hand machinery,
or to officers of the law under legal process, or to
merchants buying or selling said machinery on
which a license tax has been paid as herein pro-
vided, and who keep the same and sell and de-
liver them from their place of business. Acts
1923, Ex. Sess., pp. 20, 44.
As to the penalty for the violation of this act, see §
467 (1), P. C.
§ 993(92.) Merry-go-rounds. — Upon the owner,
manager, keeper or lessee of any merry-go-round
or flying horses, or flying swings, or human
roulettes, or scenic devices run by machinery, or of
any elevated railwray or scenic railway, or similar
contrivance kept for gain, either directly or in-
directly, for each place of business in this State,
and for each place where operated, in or near
cities over 50,000 inhabitants, $50.00; in or near
cities between 10,000 and 50,000, $30.00; in or near
cities between 5,000 and 10,000, $20.00; and in or
near cities or towns less than 5,000 inhabitants,
$10.00. Acts 1923, Ex. Sess., pp. 20, 46.
§ 993(93.) Motion picture supply houses. —
Upon all motion picture supply houses, or film
distributing agencies, $100.00 for each place of
business. Acts 1923, Ex. Sess., pp. 20, 46.
§ 993 (94.) Musical instruments. — Upon each
person, firm or corporation engaged in the busi-
ness of selling or renting, as agents or dealers,
any of the above or similar instruments, in or
near cities of more than 50,000 inhabitants, $100.-
00; in or near cities of from 25,000 to 50,000 in-
habitants, $50.00; in or near cities of from 10,000
to 25,000, $25.00; in or near cities or towns of less
than 10,000, $10.00 for each place of business.
Acts 1923, Ex. Sess., pp. 20, 46.
§ 993(95.) News dealers. — Upon each person,
firm or corporation carrying on the business of
[2
selling books, magazines, papers, fruits, confec-
tions or other articles of merchandise on the rail-
road trains in this State, $500.00. No county or
municipality shall have authority to levy any ad-
ditional tax for the privilege of carrying on said
business. Acts 1923, Ex. Sess., pp. 20, 46.
§ 993(96.) Packing houses. — Upon every indivi-
dual agent or firm of agents of any packing house,
and upon any and every individual agent or firm
of agents of any person, firm or corporation deal-
ing in any packing house products or goods, do-
ing business in this State, for each place of busi-
ness in each county having a city situated therein
with a population of 30,000 or more, $300.00; for
each place of business in each county with a pop-
ulation of from 15,000 to 30,000, $150.00; for each
place of business in each county with a popula-
tion of from 5,000 to 15,000, $50.00; for each place
of business in each county with a population of
less than 5,000, $23.00. Acts 1923, Ex. Sess., pp.
20, 47.
Constitutionality.— The Act of 1900 (Acts 1900, p. 21) im
posing a similar tax is not violative of the constitution of
this State nor of the United States. Stewart v. Kehrer.
115 Ga. 184, 41 S. E. 680; Kehrer v. Stewart, 197 U. S.
60, 49 L. Ed. 663, 25 S. Ct. 403.
The word "agents" as used in this paragraph means
managing or superintending agents, and includes every
agent who is the alter ego of the principal by whom he is
employed. Stewart v. Kehrer, 115 Ga. 184, 41 S. E. 680.
Character of Tax. — A similar tax under Acts 1900, p. 21.
was held to be an occupation tax on the business of the
agent himself. Stewart v. Kehrer, 115 Ga. 184, 41 S. K.
680.
§ 933(97). Pawnbrokers. — .Upon each person,
firm or corporation carrying on the business of
pawnbrokers, for each place of business in this
Sitate, $200.00. If any pawnbroker shall sell, or
offer for sale, or expose in his place of business
any pistol, pistol or rifle cartridges, dirk, bowie
knife or metal knucks, whether sold as unre-
deemed pledges, or otherwise, he shall also be
held subject to and required to pay the license
tax required of the dealers in such articles by sec-
tion 993 (103). Acts 1923, Ex. Sess., pp. 20, 47
§ 993(98). Photographers. — Upon every daguer-
rean, ambrotype, photographic and similar artists
carrying on the business of making pictures, se-
curing negatives for pictures to be made else-
where than in the county of his bona fide resi-
dence, $10.00. Acts 1923, Ex. Sess., pp. 20, 47.
§ 993(99). Peddlers or traveling vendors. —
Upon every peddler or traveling vendor of any
patent or proprietary medicine or remedies or
appliances of any kind or special nostrum, or
jewelry, or stationary, or drugs, or soap, or of any
other kind of merchandise or commodity whatso-
ever (whether herein enumerated or not), ped-
dling or selling any such goods or articles, or
other merchandise in each county where the same
or any of them are peddled, sold or offered for
sale, $50.00.
Upon every peddler of stoves or ranges for
cooking purposes, or clocks, or albums or picture
frames, for each county wherein he may sell or
offer for sale either of said articles, $25.00.
Upon any travelling vendor of any patent
churn, or patented fence, or patented agricultural
implements, or tools, or other patented articles,
$25.00 for each county in which he may sell or
offer to sell either of the enumerated articles
09 ]
§ 993(100)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(107)
Upon every travelling vendor using boats, bar-
ges, or other water craft for the purpose of selling
goods of any kind, not prohibited by law, on the
rivers or waters within the limits of this State,
for each county where he may sell such wares,
goods or merchandise, $50.00. The tax shall be a
lien upon the boat, barge or other water craft,
and its contents, without regard to the ownership
thereof. Acts 1923, Ex. Sess., pp. 20, 47.
See note to § 993 (75).
Rule of "Ejusdem Generis" Applies.— Paragraph 8 of § 2
of the general tax act of 1902, imposing a special tax upon
traveling venders "of patent or proprietary medicines, spe-
cial nostrums, jewelry, paper, soap, or other merchandise,"
does not embrace venders of merchandise not ejusdem
generis with the articles expressly enumerated. Standard
Oil Co. v. Swanson, 121 Ga. 412, 49 S. E. 262.
The provisions of § 946 of the Civil Code apply to the
articles enumerated therein and to articles of like charac-
ter only, notwithstanding the following language in the
section: "or of any other kind of merchandise or com-
modity whatsoever (whether herein enumerated or not)."
Weatherly v. Athens, 18 Ga. App. 734, 90 S. E. 494.
Same — Examples.— Oil handled in bulk and sold in quan-
tity is not ejusdem generis with the articles expressly
enumerated in the above-mentioned statute, and that stat-
ute does not embrace traveling vendors of such oil. Standard
Oil Co. v. Swanson, 121 Ga. 412, 49 S. E. 262.
A tax upon peddlers and traveling vendors of bananas is
unauthorized under the Civil Code (1910), § 946. Chatolis
v. Phillips, 142 Ga. 456, 83 S. E. 106.
The provisions of the general tax act of 1909 (Civil Code,
§ 946) are not to be construed as imposing a business tax
upon peddlers of chickens, eggs, and butter. It was er-
ror, therefore, for the judge to refuse to enjoin the col-
lection of such a tax from the plaintiff, who was engaged
in peddling such commodities. Latham v. Stewart, 400 Ga.
188, 78 S. E. 812. See also Butler v. Stewart, 140 Ga. 196,
78 S. E. 816.
The commodity known as "junk" is not specially named
in § 946 of the Civil Code, nor is it comprehended by the
words "or of any other kind of merchandise or commodity
whatsoever (whether herein enumerated or not.") Weath-
erly v. Athens, 18 Ga. App. 734, 90 S. E. 494. See §993 (76).
Agent of Confederate Soldier. — Under the provisions of
§ 496 of the Civil Code, one who actually travels as a
hawker or vender of patent medicine is liable for the pay-
ment of the tax provided for under that section, although
he may not be the proprietor of the articles sold or of the
animals and vehicles by means of which the articles are
transported from place to place, and be acting only as the
agent and employee of a disabled or indigent Confederate
soldier, who, under the provisions of § 1888 of the Civil
Code, is authorized to peddle without obtaining license for
the privilege of so doing. Smith v. Whiddon, 138 Ga. 471,
75 S. E. 635.
§ 993(100). Pictures and picture frames. — Upon
every person, firm or corporation who, in person
or through its agent, sells and delivers photo-
graphs or pictures of any character, or picture
frames, whether they make charge for such
frames or not, $15.00 in each county in which
this business is done. Provided, This shall not
apply to regular merchants dealing in such goods
at their usual place of business. Acts 1923, Ex.
Sess., pp 20, 48.
§ 993(101). Monument dealers. — Upon each
firm or corporation selling monuments or tomb-
stones, $25.00 in each county in which they shall
have a place of business. Acts 1923, Ex. Sess.,
pp. 20, 48.
§ 993(102). Moving pictures and vaudeville
performances. — Upon each and every electric
show or exhibition of moving pictures, or illus-
trated songs, except where given for educational
purposes, and upon each place where vaudeville
performances are given, whether with or without
electric show or moving pictures, for each place
of business in or near towns of less than 2,000
inhabitants, $2.00 per month; in or near cities
from 2,000 to 5,000 inhabitants, $2.00 per month;
in or near cities from 5,000 to 10,000 inhabitants,
$7.00 per month; in or near cities from 10,000 to
25,000 inhabitants, $10.00 per month; in or near
cities from 25,000 to 50,000 inhabitants, $12.50 per
month; and in cities of 50,000 or more inhabit-
ants, $25.00 per month, except in suburbs of cities
of more than 50,000, where such tax shall be
$12.50 per month. Acts 1923, Ex. Sess., pp. 20, 48.
§ 993(103). Pistols, cartridges, dirks, etc. — Upon
each and every dealer in pistols or in toy pistols
which shoot cartridges, or who deal in pistol cart-
ridges, or rifle cartridges, dirks, bowie knives or
metal knucks, for each place of business in this State
in or near towns or cities of 10,000 or less inhabit-
ants, $50.00; in or near cities of over 10,000, $100.-
00. Provided, further, That no Confederate veteran,
indigent person or any firm or corporation shall be
exempt from this tax. Acts 1923, Ex. Sess., pp. 20,
49.
§ 993(104). Safes and vaults. — Upon all agents
or agencies selling safes or vaults, or vault doors
or other vault fixtures, $100.00 for each place of
business. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(105). Sanatoriums, — Upon hospitals and
sanatoriums, or institutions of like character,
whether incorporated or not, conducted for gain
in or near cities of more than 20,000 population,
$100.00. In or near cities or towns of less than
20,000, $25.00. Provided, The above tax shall not
apply to public hospitals maintained by municipal
corporations for charitable purposes only. Acts
1923 Ex. Sess., pp. 20, 49.
§ 993(106). Soda fountains. — Upon each person,
firm or corporation running or operating soda
fountains in this State, having one draught arm
or similar device used in drawing carbonated
water, $5.00; and for each additional arm or de-
vice, $5.00. Acts 1923, Ex. Sess., pp. 20, 49.
§ 993(107). Soft drink syrups. — Upon all per-
sons and companies carrying on, in this State, the
business of manufacturing or selling, by whole-
sale or retail, or distributing from any depot, car
or warehouse or agency, any carbonated waters
or syrups or other articles to be used in carbon-
ated water, or intended to be fixed with or blended
with carbonated water to be sold as soft drinks
(not including imitations of beer, wine, whisky or
other intoxicating liquors), as an occupation tax
for the privilege of carrying on said business, an
amount payable at the end of each quarter, an
amount equal to one-half one per cent (^2%) of
the gross receipts from said business for said
quarter in this State. Within three days from the
end of each quarter of the calendar year each per-
son or company engaged in said kind of business
shall make returns under oath to the Comptroller-
General of this State, showing the amount of said
gross receipts with a detailed statement of the
parties from whom said receipts are received.
In case (of) a corporation, the return shall be
made under oath by the president, if a resident of
this State, and if the president is not such resident,
by the officer or person in charge of the business of
said corporation in this State.
Upon the making of such returns, the person or
[210]
I 993(108)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(117)
:ompany liable to said tax shall pay the same to
he Comptroller-General and upon failure to pay
he same, the Comptroller-General shall issue an
:xecution for said tax against the property of the
>erson or company liable to said tax. If no returns
)e made or if the Comptroller-General believes
;aid returns are false, the Comptroller-General shall
iscertain the amount of said gross receipts from
he best information in his power and assess the tax
iccordingly, after giving the company or person
iable to said tax at least five days' notice of the
ime of assessing said tax, and issue his execu-
ion accordingly against the person or corporation
•arrying on said business. It is hereby enacted
hat all of said taxes received or collected under
his section shall be paid into the State Treasury.
[t is also enacted .that any person or company
jaying the tax herein levied shall be relieved of
my and all occupation tax or license fees to the
State under existing laws on or for the kind of
>usiness specified in this paragraph. Provided,
lowever, that said tax shall be collected upon said
>yrup or carbonated water only once, and shall
)e paid by the wholesale dealer in said syrup if
;old within the confines of this State by such
wholesale dealer; and if said syrup or carbonated
<vater shall be purchased by the retail dealer with-
out the limits of this State and shall be shipped
:o a point within the limits of this State, the same
mall be taxed in the hands of such retail dealer,
ind for the purposes of this tax the price paid for
such syrup or carbonated water shall determine
:he receipts for the same. Acts 1923, Ex. Sess.,
)p. 20, 49.
As to the penalty for the violation of this act, see §§
65 (1) and 466 (1), P. C.
§ 993(108). Hotels. — Upon every person, firm
:>r corporation operating a hotel in counties of
Dver 30,000 inhabitants, a teix of $1.00 for each
deeping room per annum, and in counties of less
:han 30,000 inhabitants, 50 cents per annum for
>ach sleeping room. Acts 1923, Ex. Sess., pp. 20,
51.
§ 993(109). Cafes and restaurants; wiener
stands. — Upon every person, firm or corporation,
except hotels, operating any cafe, restaurant or
lunch room with five or more tables, $10.00; ten
Dr more tables, $25.00; twenty-five tables or more,
£50.00; fifty tables or more, $100.00.
Provided, however, That four seats or stools
mall be construed to constitute a table.
On all persons engaged in operating wiener
stands, in towns or cities of a population of 20,000
or less, $5.00 for each such place of business; in
cities of more than 20,00 population, $10.00 for
each such place of business. Acts 1923, Ex. Sess.,
pp. 20, 51.
§ 993(110). Street carnivals. — Upon every mid-
way combination of small shows, or street fair or
street carnival, the sum of $25.00 each week or
fractional part thereof, for each separate tent, en-
closure or place where an admission fee is charged
or collected, either directly or indirectly, to wit-
ness or hear any performance, or where anything
may be exhibited for admission or ticket; and
upon every merry-go-round or flying horse, ac-
companying any midway combination, street fair
or street carnival, in each city or town in this
state in which it does business, or in each county
where they may operate outside of the limits of
any city or town in this Slate, $25.00. Provided,
That should the said midway combination, or any
of them specified above, be held in connection
with county, district, or state agricultural fair-
of this State and under the direction of, and with-
in the grounds at the time of holding said fairs,
the whole amount of said tax for said attraction
when so held shall be $25.00 per week or a frac-
tional part thereof. Acts 1923, Ex. Sess., pp. 20.
52.
§ 993(111). Tanks and pumping systems. —
Upon each person, firm or corporation selling or
dealing in tanks and pumps, or tanks or pumps
for oil, gasoline or kerosene, or other like fluids,
$50.00 for each place of business. Acts 1923, Ex.
Sess., pp. 20, 52.
§ 993(112). Trading stamps. — Upon all trading
stamp companies, or dealers in trading stamps,
$50.00 for each place of business. Acts 1923, Ex.
Sess., pp. 20, 52.
§ 993(113). Steamship companies. — Upon all
steamship and steamboat companies in this State,
$100.00. Acts 1923, Ex. Sess., pp. 20, 52.
§ 993(114). Undertakers. — Upon each person,
firm or corporation whose business is that of
burying the dead and charging for same, com-
monly known as undertakers, in or near cities of
more than 50,000 inhabitants, $200.00; in or near
cities from 10,000 to 50,000 inhabitants, $100.00;
in or near cities from 5,000 to 10,000 inhabitants,
$50.00; in or near cities or towns of from 2,500 to
5,000 inhabitants, $20.00; in or near towns of less
than 2,500 inhabitants, $10.00 for each place of
business. Acts 1923, Ex. Sess., pp. 20, 52.
§ 993(115). Cotton warehouses. — Upon each
person, firm or corporation operating a warehouse
or yard for the storage and handling of cotton for
compensation license tax is as follows: Where
not less than 500 or more than 5,000 bales are
handled in one year, $10,00; where not less than
5,000 or more than 10,000 bales are handled in
one year, $25.00; where not less than 10,000 nor
more than 20,000 bales are handled in one year,
$50.00; where not less than 20,000 bales, nor more
than 30,000 bales are handled in one year $100.00;
where more than 30,000 bales are handled in one
year, $200.00. Acts 1923, Ex. Sess., pp. 20, 53.
§ 993(116). Merchandise warehouses. — Upon
each person, firm or corporation operating a ware-
house or yard for storage of goods, wares or
merchandise and farm products other than cotton
and charging for the same, $25.00. Provided, That
any warehouse that pays taxes as provided by sec-
tion 920ddddd shall not be subject to tax required
by this section. Acts 1923, Ex. Sess., pp. 20, 53.
§ 993(117). Waterworks. — Upon each person,
firm or corporation dealing in, as manufacturers
of or agents for, any waterworks system, whether
the power operating same is derived from a wind
mill, hydraulic, gas, or similar engine or electrical
apparatus, the sum of $100.00 in each county
wherein such business is carried on. Acts 1923, Ex.
Sess., pp. 20, 53.
[211]
§ 993(118)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(128)
§ 993(118). Fish, etc., packers or shippers. —
Upon each person, firm or corporation engaged
in the business of packing or shipping oysters,
shrimp or fish, $50.00 for each county. Acts 1923,
Ex. Sess., pp. 20, 53.
§ 993(119). Patent rights. — Upon each person,
firm or corporation selling patent rights in Geor-
gia, the sum of $50.00 for each county in which
said business is carried on. Acts 1923, Ex. Sess.,
pp. 20, 53.
§ 993(120). Commercial reporting agents. —
Upon each person, firm or corporation engaged in
the business of a commercial reporting agency, in
each county in the State where they have an office
or branch office, $125.00. Acts 1923, Ex. Sess., pp.
20, 53.
§ 993(121). Stevedores. — Upon each person,
firm or corporation engaged in the business of a
stevedore, the sum of $100.00 for each place of
business. Acts 1923, Ex. Sess. pp. 20, 54.
§ 893(122). Salary and wage buyers. — Upon
each person, firm or corporation or partnership
buying salary or wage accounts and all negotiable
papers $100.00 for each office and place of busi-
ness maintained. Acts 1923, Ex. Sess., pp. 20, 54.
§ 993(123). Carbonic acid gas. — Each person,
firm or corporation engaged in the business of
manufacturing or vending soft drinks made of or
containing carbonic acid gas or any substitute
therefor shall pay as a privilege license to carry on
such business 4 cents on each pound of carbonic
acid gas, or any substitute therefor so used. Pro-
vided, that bottled drinks on which this license
shall have been paid may be resold in original
packages without the payment of any further
license under this schedule. Each person, firm or
corporation engaged in such business shall keep
accurate books and invoices showing the quantity
of carbonic acid gas or any substitute therefor
used in such business, and such other information
relating to the business as may be required by the
Comptroller-General to enable the state tax officials
to check up the returns herein required. At the
end of each calendar quarterly period every per-
son, firm or corporation engaged in such business
shall make a report to the Comptroller-General
on blanks to be furnished by the Comptroller-
General, showing the amount of carbonic acid gas
or other substitute therefor, consumed during the
preceding quarter, and such other information as
the Comptroller-General may require, verified by
affidavit, and shall with such report remit the
license herein provided for each pound of carbonic
acid gas or other substitute therefor consumed, as
shown by the report, and such remittance shall be
paid into the State treasury. If such report and
remittance is not made within fifteen days after
the end of the calendar quarter, there shall be added
to the sum due for such license for the preceding
quarter, ten per cent additional license. The tax
officials of the State shall have authority to examine
the books and papers of any one engaged in such
business for the purpose of ascertaining the correct-
ness of all reports and remittances. Acts 1923, Ex.
Sess., pp. 20, 54.
As to the penalty for the violation of this act, see § 476 (4),
P. C.
[21
§ 993(124). Toll bridges and ferries.— Upon all
persons or corporations operating ferries, $15.00.
Upon all persons or corporations operating toll
bridges, $100.00, said tax to be paid to the collector
of the county in which the owner lives or is domi-
ciled. Provided, That his tax shall not be required
of any ferry or toll bridge, the receipts from which
do not amount to more than $500.00 per annum.
Acts 1923, Ex. Sess., pp. 20, 55.
§ 993(125). Beauty parlors and manicure
shops. — . Upon each beauty parlor or shop, or
manicure shop, $10.00 for each place of business-
Provided, That this tax shall not apply to mani
cure shops, operated in connection with barber
shops. Acts 1923, Ex. Sess., pp. 20, 55.
§ 993(126). Swimming pools and bathing re-
sorts.— Upon each and every person, firm or cor-
poration operating a swimming pool where admis-
sion fees are charged, or upon persons firms or
corporations keeping and renting bathing suits for
hire, $20.00 in counties of over 50,000 population,
and $10.00 in counties of under 50,000 population;
upon persons, firms or corporations conducting or
operating a bathing resort in or near the ocean and
gulf front of this State for hire, the sum of $200.00
in each county where such bathing resort is
located. Acts 1923, Ex. Sess., pp. 20, 55.
§ 993(127). Dogs. — All dogs are hereby made
personal property and shall be given in and taxed
as other property of this State is given in and
taxed, such tax to be enforced by levy and sales as
other taxes are collected and not to interfere with
the imposition and collection of any municipal
taxes on dogs, whether such dog or dogs be
owned by the tax payer, his wife or minor children.
Acts 1923, Ex. Sess., pp. 20, 55.
Effect of Making Dogs Personalty. — Under a similar pro-
vision of the Act of 1912 as to the taxation of dogs, a dog-
was personal property, and a railroad company is liable
for any damage done to a dog by the running of the loco-
motives, etc. Seaboard Air-Line Railway v. McDonald,
19 Ga. App. 627, 91 S. E. 1053.
§ 993(128). Sewing machines. — Upon every
sewing machine company selling or dealing in
sewing machines by itself or its agents in this
State, and all wholesale and retail dealers in sew-
ing machines, selling machines manufactured by
companies that have not paid the tax herein, $400.-
00 for each fiscal year or fraction thereof, to be
paid to the Comptroller-General at the time of
commencement of business, and said companies
or dealers shall furnish the Comptroller-General
with a list of agents authorized to sell machines of
their manufacture or under their control, and shall
pay to said Comptroller-General the sum of $10.00
for each of said agents for the fiscal year or frac-
tional part thereof, for each county in which said
agents do business for said company. Upon the
payment of said additional sum the Comptroller-
General shall issue to each of said agents a certifi-
cate of authority to transact business in this State.
Before doing business under this Act, all sewing
machine agents shall be required to register their
names with the ordinaries of those counties in
which they intend to operate and exhibit to said
ordinaries their license from the Comptroller-
General, and to keep such license posted on their
vehicles, or at their place of business. Wholesale
2]
§ 993(129)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(132)
and retail dealers in sewing machines shall be re-
quired to pay the tax provided herein for each
manufacturer of sewing machines sold by them,
except where the tax required by this act has been
paid by said manufacturer. All unsold sewing
machines belonging to sewing machine companies,
dealers, or their agents, in possession of said
companies, dealers, their agents or others, shall be
liable to seizure and sale for payment of such fees,
license or tax. None of the provisions of this sec-
tion shall apply to licensed auctioneers selling
second-hand sewing machines, or to officers of the
law under legal process, or to merchants buying
and selling machines on which a license tax has
been paid as herein provided, and who keep the
machines and sell and deliver them at their places
of business, such sales not being on commission.
Provided, That if said merchant shall employ an
agent or agents to delivered or sell the machines,
the provisions of this Act shall apply to said agent
or agents. Acts 1923, Ex. Sess., pp. 20, 56.
As to the penalty for the violation of this act, see §
468 (1), P. C.
Constitutionality. — A similar tax under the tax act of
1886, was held to be constitutional. Singer Mfg. Co. v.
"Wright, 97 C.a. 114, 25 S. E- 249. See also. Weaver v.
State, 89 Ga. 639, 15 S. E. 840.
To Whom Applicable. — We understand the words, "sew-
ing-machine company," as used in the statute now under
consideration [Tax 4 Act of 1886], to mean a company which
manufactures sewing machines. Singer Mfg. Co. v. Wright,
97 Ga. 114, 25 S. E. 249.
Same — Question of Fact. — Under the tax act . of 1878 it
was held that whether a given dealer is a dealer in sew-
ing machines is a question of fact. Smith v. Goldsmith,
63 Ga. 736, 737. See for application to given facts under
Act of 1890, Weaver v. State, 89 Ga. 639, 15 S. E. 840.
§ 993(129). Tax returns.— The tax provided for
in Section 993(128) requires return made to the
Comptroller-General in accordance with the law of
Georgia. The tax required by section 993(5) and
993(6), shall be returned to the receiver of tax re-
turns in the county of the residence of the person
liable to such tax and shall be entered by the re-
ceiver upon the digest of taxable propert)^. In
the case of the tax imposed upon Foreign Corpora-
tions by Section 993(54) and the tax imposed by
section 993(91) upon manufacturers of machinery
and implements; upon soft drink syrups by section
993(107), and upon carbonic acid gas by section
993(123) the return is required to be made, and the
tax paid to the Comptroller-General. The tax im-
posed upon legislative agents by section 993(82)
shall be paid to the Secretary of State when each
person registers, and he shall not be allowed to
register until such tax is paid. All other taxes enu-
merated and set forth in Section 993 (3) -993 (126)
shall be returned and paid to the tax collector of
the county where such vocations are carried on.
Acts 1923, Ex. Sess., pp. 20. 57.
§ 993(130). Tax payments. — The taxes pro-
vided for in this Act shall be paid in full for the
fiscal year for which they are levied, and except
"where otherwise provided, said taxes shall be paid
to the tax collectors of the counties where such
vocations are carried on, at the time of commenc-
ing to do business. Before any person shall be
authorized to open up or carry on said business,
they shall go before the ordinary of the county in
which they propose to do business and register
their names, the business they propose to engage
[2
in, the place where it is to be conducted; and they
shall then proceed to pay the tax to the collector,
and it shall be the duty of the said ordinary to
immediately notify the tax collector of such regis-
tration, and at the end of each quarter to furnish
the Comptroller-General with a report of such
special tax registration in his office. Acts 192:5, Ex.
Sess., pp. 20, 57.
See note to § 993 (16)
As to the penaltv for the violation of this act, see §
469 (1), P. C.
It is not a defense to a suit brought by a person sell-
ing or buying real estate on commission, to recover com-
missions on sales of real estate made by him, that lu-
had failed to pay the tax and register as required by
the statute. Toole v. Wiregrass Develop. Co., 142 Ga.
57, 82 S. E. 514. This case overrules several earlier cases
(Ford v. Thomason, 11 Ga. App. 359, 75 S. E. 269; Hor-
sley v. Woodley, 12 Ga. App. 456, 78 S. E. 260; Mathis
v. Harrall, 12 Ga. App. 497, 77 S. E. 650; Rountree v.
Lewis, 13 Ga. App. 47, 78 S. E. 780), and has been sev-
eral times affirmed. Fiske v. Wimburn, 143 Ga. 30, 84 S.
E. 57; McManus v. Cash Grocerv Co., 143 Ga. 623, 85 S.
E. 858; Morris v. Moore, 143 Ga. 512, 85 S. E. 635; Rob-
erts v. Martin, 15 Ga. App. 205, 82 S. E- 813; Swift v.
Moore, 15 Ga. App. 254, 82 S. E. 914.
§ 993(131). Insurance companies; premium tax.
— Be it further enacted by the authority aforesaid,
That all foreign and domestic insurance companies
doing business in this State shall pay one and one-
half (ll/>%) per cent upon gross premiums re-
ceived by them in this State for the year, with no
deduction for dividends, whether returned in cash
or allowed in payment or reduction of premiums or
for additional insurance; nor shall any deduction
be allowed for premium abatements of any kind or
character, or for reinsurance, except companies do-
ing business in Georgia, or for cash surrender
values paid, or for losses, or expenses of any kind,
said tax being imposed upon gross premiums with-
out any deductions whatever except for premiums
returned on change of rate and cancelled policies
and on reinsurance as above provided. Provided,
That local organizations known as Farmers' Mutual
Insurance Companies, operating in not more than
four counties, shall not be subject to this tax. Pro-
vided, further. That mutual fire insurance com-
paines chartered by this State which require their
members to make premium deposits to provide for
losses and expenses, and which premium deposits
are used wholly for the payment of losses and ex-
penses and returned to the policyholders or held to
pay losses and expenses and as reinsurance re-
serves, shall not be subject to this tax. Acts 1923,
Ex. Sess. pp. 20. 58.
The word "premiums," as used in the Act of 1918 [see
editor's note under § 993 (1)1, is to be given the con-
struction placed upon it by ordinary usage and in ac-
cordance with its apparent meaning when used in insur-
ance policies, and which is placed upon it by agents of
insurance companies in dealing with the public, which
includes the maximum table rate premium stipulated in
the policy, the payment of which the company can exact
as a condition precedent to keeping the policy in life.
New York Life Ins. Co. v. Wright, 31 Ga. App. 713. 122
S. E. 706.
§ 993(132). Insurance companies; return of
real estate and personal property. — Every insur-
ance compan_v incorporated under the laws of this
State and doing business on the legal reserve plan,
shall foe required to return for taxation all of its
real estate as other real estate is returned, and all
of the personal property owned by it shall be as-
certained in the following manner: From the total
13]
§ 993(133)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(134)
value of the assets held by the company, both real
and personal, shall be deducted the assessed value
of all real estate owned by the company in this
State, the non-taxable funds deposited by the com-
pany with the State Treasurer, and the amount of
the reserve or net value of the policies required by
law to be held by the company for its policy-
holders, and which belong to such policyholders;
the remainder shall be the value of the personal
property owned by and taxable against such com-
panies. Acts 1923, Ex. Sess., pp. 20, 59.
"Total Value of Assets." — When considered in connec-
tion with the preceding part of the statute, the words,
"total value of the assets held by the company," refer to
assets owned by the company. Standard Life Ins. Co.
v. Atlanta, 151 Ga. 153, 106 S. E. HO.
"Reserve," as employed in the latter part of the stat-
ute, refers to property not designed to be taxed as prop-
erty of the company. Standard Life Ins. Co. v. Atlanta,
151 Ga. 153, 106 S. E- HO.
Effect as Exempting Reserve. — Under such construction,
deduction of "reserve" from "total value" of the assets held
by the company, while not expressly exempting the "re-
serve" as such, would accomplish a result amounting to
the same thing, namely, a reduction of the ascertainable
value of the personal property of the company equal to the
amount of the reserve. Standard Life Ins. Co. v. Atlanta,
151 Ga. 153, 106 S. E. 110.
Constitutionality. — So much of the statute as refers to
method for ascertaining the value of personal property is
violative of the constitution, article 7, § 2, paragraphs 1,
2, 4 (Civil Code, §§ 6553, 6554, 6556), providing that taxes
shall be uniform and ad valorem, and prohibiting the ex-
emption of property from taxation otherwise than as spe-
cially mentioned. Standard Life Ins. Co. v. Atlanta, 151
Ga. 153, 106 S. E. HO.
Injunction to Prevent Improper Collection. — The court did
not err in granting an interlocutory injunction against the
City of Atlanta, which was undertaking to collect taxes
from the Standard Life Insurance Company without deduct-
ing the reserve fund from its total assets. Atlanta v.
Standard Life Ins. Co., 149 Ga. 501, 101 S. E- 122.
§ 993(133). Insurance companies; when premium
tax reduced. — Whenever any insurance company do-
ing business is this State shall make it appear by
proof to the Insurance Commissioners that one-
fourth of the total assets are invested in any or all
of the following securities or property, to wit:
Bonds of this State, or of any county or munici-
pality of this State, property situated in this State
and taxable therein, loans secured by liens on real
estate situated in this State, or policy loans by in-
surance policies issued by such company on lives of
persons resident of this State, then the premium
tax levied by the section 993(131), shall be abated
or reduced to one per centum upon the gross re-
ceipts of such company, and if the amounts so in-
vested by any such company shall be as much as
threefourths of the total assets of such company,
then said premium tax shall be abated or reduced
to one-fourth of one per centum upon such gross
receipts of such company. Acts 1923, Ex. Sess.,
pp. 20, 59.
§ 993(134). Manufacturing companies. — The
president, superintendent or agents of all manu-
facturing and other companies, whether incorpo-
rated or not (other than railroad, telegraph,
telephone, express, sleeping and palace car com-
panies, and such other companies as are required
to make return of the value of their franchise to
the Comptroller-General under section 1020), and
all persons and companies conducting business
enterprises of every nature whatsoever, shall re-
turn for taxation at its true market value all of their
real estate to the tax receiver of the count}' wherein
said real estate is located. Provided, That if the
real estate upon which said manufacturing or other
business enterprise of whatsoever nature is carried
on, lies on or across the county line, or county
lines, and in two or more counties, said real estate
shall be returned to the tax receiver of the county
wherein are located the main buildings containing
the machinery, or most of the main buildings.
Provided, further, That all persons, companies and
corporations not excepted above, conducting any
business enterprise upon realty not taxable in the
county in which such persons reside or the office
of the company or corporation is located, shall re-
turn for taxation their stock of merchandise, raw
materials, machinery, live stock, and all other per-
sonalty employed in the operation of such business
enterprises, together with the manufactured goods
and all other property of such business enterprises
and notes and accounts made and the money used
in the prosecution of such business enterprises on
hand at the time for the estimation of property for
taxation, including all personalty of whatsoever
kind connected with or used in such enterprises in
any manner whatsoever, in the county in which is
taxable the realty wherein such business enter-
prises are located or carried on. Provided, further
That the agent in this State of any person, firm or
corporation resident without this State who shall
have on hand and for sale, storage or otherwise as
such agents, merchandise or other property, includ-
ing money, notes, accounts, bonds, stocks, etc.,
shall return the same for taxation to the tax re-
ceiver of the county wherein the same may be taxed
for State and county purposes as other property in
this State is taxed. The word "merchandise" shall
be held to include guano, commercial fertilizer,
save and except that all canal and slack-water
navigation companies shall make through their re-
spective executive officers or stockholders in pos-
session of the same, returns to the tax receiver of
each county in which the same is located, or
through which the same shall pass, in whole or in
part of the right-of-way, locks and dams, toll
houses, structures, and all other real estate owned
by or used by the company or stockholders thereof.
Provided, That this Act shall not make subject to
taxation any property of canal or navigation com-
panies which is not subject to taxation by the laws
of this State now existing. The president of every
manufacturing company in this State, and agent,
general manager or person in possession or charge
of the business and property in this State of non-
resident person, firm or corporation, shall be re-
quired to answer under oath in addition to those
provided by law, the following questions:
1. What is the market value of the real estate of
the company you represent, including the buildings
thereon?
2. What is the true market value of your
machinery of every kind?
3. What is the true market value of the real
estate not used in the conduct of the business of
your company?
4. What is the true market value of raw materials
on hand on the day fixed for return of property for
taxation?
5. What is the true market value of manufactured
[214
§ 993(135)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(138)
goods or articles on hand on the day for the return
of property for taxation, whether at your principal
office or in the hands of agents, commission
merchants or others?
6. How much money did your company have on
hand the day fixed for the return of property for
taxation, whether within or without the State?
How much deposited in bank?
7. State separately the true market value of the
notes, bonds, and other obligations for money or
property of every kind on hand on the day fixed
for the return of property for taxation. And such
company shall be taxed upon its entire property, so
ascertained, and the Comptroller-General is au-
thorized to frame and have propounded any other
questions which in his judgment will produce a
fuller return. Acts 1923, Ex. Sess., pp. 20, 60.
§ 993(135). Railroads, express companies, etc.;
required to make return to Comptroller-General. —
All railroad companies, street and suburban rail-
roads or sleeping car companies or persons or
companies operating railroads or street railroads or
suburban railroads or sleeping cars in this State, all
express companies, including railroad companies
doing an express, telephone or telegraph business,
and all telephone and telegraph companies, person,
or persons, doing an express, telephone or telegraph
business; all gas, water, electric light or power,
steam, heat, refrigerated air, dockage or cranage,
canal toll road, toll bridges, railroads, equipment
and navigation companies, through their president,
general manager, or agent having control of the
company's offices in this State, shall be required to
make returns of all property of said company lo-
cated in this State to the Comptroller-General, and
the laws now in force providing for the taxation of
railroads in this State, shall be applicable to the
assessments of taxes from said business as above
stated. Acts 1923, Ex. Sess., pp. 20, 621.
Applicability to Foreign Navigation Company. — A foreign
corporation having power under its charter to engage in busi-
ness of navigation and other industrial enterprises in Geor-
gia, which establishes a branch office and agency in this
State and acquires property having a situs in this State for
the purposes of taxation, is a navigation company within
the meaning of a similar provision of the Act of 1918, re-
quiring "navigation companies," among others, to make
returns of their property for taxation to the comptroller-
general of the State. See note under § 993 (1). South-
land Steamship Co. v. Dixon, 151 Ga. 216. 106 S. E. 111.
§ 993(136). Sleeping car companies. — Each
non-resident person or company whose sleeping
cars are run in this State shall be taxed as follows:
Ascertain the whole number of miles of railroads
over which sleeping cars are run and ascertain the
entire value of all sleeping cars of such person or
company, then tax such sleeping cars at the regu-
lar tax rate imposed upon the property in this State
in the same proportion to the entire value of such
sleeping cars that the length of lines in this State
over which such cars are run bear to the length of
lines of all railroads over which such sleeping cars
are run. The returns shall be made to the Comp-
troller-General by the president, general agent,
agent or person in control of such cars in this State.
The Comptroller-General shall frame such ques-
tions as will elicit the information sought, and an-
swers thereto shall be made under oath. If the
officers above referred to in control of said sleeping
cars shall fail or refuse to answer, under oath, the
questions propounded, the Comptroller-General
shall obtain the information from such sources as
he may, and he shall assess a double tax on such
sleeping cars. If the taxes herein provided for are
not paid, the Comptroller-General shall issue exe-
cutions against the owners of such cars which may
be levied by the sheriffs of any county in this State
upon the sleeping car or cars of the owners, who
have failed to pay the taxes. Acts 1923, Ex. Sess..
pp. 20, <;:;.
§ 993(137). Railroad returns to be made by
president. — The presidents of all railroad com-
panies doing business in this State shall make re-
turns to the Comptroller-General in the manner
provided by law for the taxation of the property or
the gross receipts or net income of such railroads
and shall pay the Comptroller-General the tax to
which such property or gross receipts or net in-
come may be subject according to the provisions of
this Act, and the laws now in force relating to the
tax on railroads, and on failure to make returns or
refusals to pay tax, said company shall be liable to
all the penalities now provided by law, and the
Comptroller-General is hereby required upon
failure of such companies to make returns, or it"
made and not satisfactory to said officer, to pro-
ceed against such companies as provided in Section
1050. Acts 1923, Ex. Sess., pp. 20, 64.
§ 993(138). Banks. — No tax shall be assessed
upon the capital of banks or banking associations
organized under the authority of this State, or of
the United States, located within this State, but the
shares of the stockholders of the banks or banking
associations, whether resident or non-resident
owners, shall be taxed in the county where the bank
or banking associations are located, and not else-
where, at their full market value, including sur-
plus and undivided profits, at the same rate pro-
vided in this Act for the taxation of other property
in the hands of private individuals. Provided.
That nothing in this section contained shall be
construed to relieve such banks or banking associa-
tions from the tax on real estate held or owned by
them, but they shall return said real estate ■ at its
true market value in the county where located.
Provided, further, That where real estate is fully
paid for, the value at which it is returned for taxa-
tion may be deducted from the market value of
their shares and if said real estate is not fully paid
for, only the value at which the equity owned by
them therein is returned for taxation shall be de-
ducted from the market value of their shares. The
bank or banking associations themselves shall make
the returns of the property and the shares therein
mentioned and pay the taxes herein provided.
Branch banks shall be taxed on the value of the
capital employed in their operation, in the counties,
municipalities, and districts in which they are
located and the parent bank shall be relieved of
taxation to the extent of the capital set aside for the
exclusive use of such branches. Acts 19:23, Ex.
Sess., pp. 20, 65.
For a similar provision as to taxation of branch banks,
see § 2366 (3).
Stock Taxed as Property of Holder.— The similar provi-
sion of the Act of 1918 [see note to § 993 (1)] contemplates
payment of taxes on shares of stock, not as property of the
[215]
§ 993(139)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(146)
institution, but as property "of the stockholders," against
whom the institution has a right to reimbursement, and is
merely a convenient method for collecting taxes from such
stockholders. Daniel v. Bank, 154 Ga. 282, 114 S. E. 210.
This section likewise contemplates. — Ed. Note.
Deduction of Value of Non-Taxable Assets.— Where a
banking corporation makes its return for taxation under
the provisions of such statute, the corporation is not au-
thorized to deduct from the value of the capital stock em-
braced in the return the value of specific non- taxable United
States liberty bonds and United States treasury certifi-
cates, which are held by the bank as an investment. Own-
ership by the corporation of such non -taxable bonds and
certificates enter into and naturally enhance the value of
the shares of capital stock issued to shareholders of the cor-
poration; but the fact that it does so will not prevent the
taxing authority from taxing the shares of stock at their
full market value, without deducting the non -taxable secu-
rities which enter into the value of the shares of the stock.
Daniel v. Bank, 154 Ga. 282, 114 S. E- 210.
§ 993(139). Building and loan associations. —
Mutual building and loan associations operating-
only in the county of their charter and limiting
their loans to members, shall not be assessed on
their capital loaned to stockholders or members
thereof. All other building and loan associations or
other associations of like character, shall be required
to return to the tax receiver of the county where
such associations are located all real and personal
property of every kind and character belonging to
such associations except the real property located
in another county shall be returned to the tax re-
ceiver of that county. Acts 1923, Ex. Sess., pp. 20,
65.
§ 993(140). Tax returns by resident agents. —
The president and principal agents of all incorpo-
rated companies herein mentioned, except such as
are required to make returns to tax receivers of the
counties, shall make returns to the Comptroller-
General under the rules and regulations provided
by law for such returns and subject to the same
penalties and modes of procedure for the enforce-
ment of taxes from companies or persons required
by law to make returns to the Comptroller-Gen-
eral. Acts 1923, Ex. Sess., pp. 20, 66.
§ 993(141). Duties of tax collectors, etc., as to
collection of taxes; fines. — It shall be the duty of
the sheriffs, their deputies and the constables of this
State to look carefully after the collection of all
taxes that may be due the State of Georgia under
this Act, or any other special taxes due the State of
Georgia. It shall be the duty of all tax collectors
and sheriffs and constables of this State to direct
and see that all persons, firms or corporations
violating this Act or any of the tax acts of this
State shall be prosecuted for all violations of the
tax laws, and every person convicted for a violation
of this Act or any of the special tax laws of Geor-
gia, upon the information of any citizen of this
State, one-fourth of the fine imposed upon any per-
son for violation of the tax laws shall, by order of
said court, be paid to such informant or prosecutor.
Acts 1923, Ex. Sess., pp. 20, 66.
§ 993(142). "In towns or cities" defined. —
Wherever in sections 993(7)-993(l38) the words
""in towns or cities" occur, the same shall be con-
strued to mean "within one mile of villages, towns,
or cities," unless otherwise specified. Acts 1923, Ex.
Sess., pp. 20, 66.
§ 993(143). Equipment companies; annual re-
turns.— Any person or persons, co-partnership,
[a
company or corporation, wherever organized or
incorporated, engaged in the business of furnishing
or leasing any kind of railroad cars, except dining,
buffet, chair, parlor, palace or sleeping cars, or in
whom the legal title of any such cars is vested but
which are leased or operated, or hired to be ope-
rated on any railroad in this State, shall be deemed
an equipment company, whether the furnishing or
leasing of such cars may be the usual business of
such companies or merely incidental to such unusal
business. Every such company shall be required
to make annual returns to the Comptroller-Gen-
eral under the same laws of force in reference to the
rolling stock owned by the railroads making re-
turns in this State, and the assessment of taxes
upon such equipment companies shall be based
upon the value of the average amount of equip-
ment of said equipment company in this State dur-
ing the preceding year, and taxes shall be imposed
and collected upon such value at the same rate as
other property in this State is taxed. Acts 1923,
Ex. Sess., 20, 63; 1924, pp. 27, 28.
Constitutionality.— See note to § 1031.
§ 993(144). Equipment companies; what returns
should show. — The annual returns of such com-
panies shall show the total value of the railway
equipment of each company, the total number of
car-wheel miles made in the United States by the
cars of each compan}% and the number of car-wheel
miles made in Georgia, during the year; and the
average amount of equipment in this State shall be
determined by ascertaining the percentage that the
car-wheel mileage made in Georgia bears to the en-
tire car-wheel mileage, and applying this percent-
age to the total value of the equipment. Acts 1924,
pp. 27, 29.
§ 993(145). Equipment companies; time of re-
turn and payment of tax ; questions by Comptroller-
General, etc.— The return shall be made to the
Comptroller-General on or before March 1st of
each year by the president, general agent, or per-
son in control of such companies, and the tax here-
in provided for shall be paid into the State Treas-
ury on or before September 1st of each year. The
Comptroller-General shall frame such questions as
will elicit the information sought, and answers
thereto shall be made under oath. If the officers
above referred to in the control of such companies
shall fail or refuse to make such return, or to an-
swer under oath the questions propounded, the
Comptroller-General shall obtain the information
from such source as he may, and he shall assess a
double tax on such railway equipment. It shall
further be the duty of the Comptroller-General to
carefully scrutinize the returns made by such com-
panies, and, if in his opinion the value of the rail-
way equipment of any such company is not fairly
stated in the returns, or if the car-wheel mileage is
not correctly stated, to reject the return submitted
and assess the value of the equipment and the mile-
age from the best information obtainable. The law
and rules relative to the arbitration of railroad
property in this State shall be applicable to the
arbitration of such assessments. Acts 1924, pp. 27,
29.
§ 993(146). Equipment companies; execution
and levy. — If the taxes herein provided for are not
16 ]
§ 993(147)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(155)
paid when due, the Comptroller-General shall issue
executions against the owners or operators of such
cars, which may be levied by the sheriff of any
County of this state upon the car or cars or any
other property of the owner or operator who has
failed to pay the taxes. Acts 1924, pp. 27, 30.
§ 993(147). Equipment companies; Railroads to
give names of owners, etc., in tax-returns. — The
railroads of this State, when making annual tax
returns to the Comptroller-General, shall furnish,
as a part of said return, a statement showing the
names and addresses of all owners or operators of
such privately owned equipment handled by said
railroad corporation during the preceding years,
and such other information regarding the operation
of such cars over their roads in this State as the
Comptroller-General shall require of them. Acts
1924, pp. 27, 30.
§ 993(148). Equipment companies; additional
salary of $1,400 to public-service corporation tax
clerk. — The Public-Service Corporation Tax Clerk
in the office of the Comptroller-General shall re-
ceive an additional salary of $1,400.00 per annum
to compensate for extra labor involved in the as-
sessment and collection of the taxes herein provided
for, and this Act shall become effective imme-
diately upon the approval of the Governor and the
additional salary herein provided for shall be paid
by the State Treasurer as now provided by law for
the payment of salaries to the Statehouse officers
and clerks. Acts 1924, pp. 27, 30.
§ 993(149). Cigarette and cigar dealers; "whole-
sale" and "retail" dealer defined. — There shall be
levied upon and collected from each person, firm or
corporation, engaged in selling cigarettes and
cigars at retail, a tax of ten per centum of the sales
price at retail of each package of cigarettes and
each cigar sold by such dealer. Under the provisions
of this Act, a dealer at wholesale in cigars, cigar-
ettes, manufactured tobacco, or other manufactured
tobacco products, is defined to be any person, firm,
or corporation, engaged in the business of selling
such articles for resale, and a dealer at retail is de-
fined to be any person, firm or corporation, engaged
in the business of selling such articles directly to
the consumer, or for any other purpose than that of
resale, irrespective of the quantity that may be
sold. Acts 1923, p. 39; 1924, pp. 25, 26.
As to the penalty for the violation of this act, see §
464 (2), P. C.
§ 993(150). Cigarette and cigar dealers; use of
stamp to show tax paid. — Each dealer shall pay
said tax to the Commissioner of Revenue of the
State of Georgia, who shall thereupon furnish to
such dealer stamps of such design and denomina-
tions as may be prescribed by said commissioner of
revenue, and it shall be the duty of each dealer to
affix to each package of cigarettes and each box,
package, or other container of cigars a stamp, or
stamps, furnished by said commissioner of revenue,
evidencing the payment of the tax imposed by this
Act, and to cancel such stamps before said
cigarettes or cigars are offered for sale. Provided
that wherever cigarettes are sold in cartons or other
original containers said stamps may be affixed to
each package contained therein. Acts 1923, p. 39;
1923, Ex, Sess., pp. 69, 71
[21
§ 993(151). Cigarette and cigar dealers; place of
stamp; cancellation. — Each dealer, upon affixing
stamps to each package, or carton of cigarettes,
and each box, package or container of cigars, shall
cancel the same by writing or stamping thereon his
initials and the date upon which said stamp is
affixed; and in affixing said stamps to each box,
package, or container of cigars, said stamps shall be
so placed on said box, package, or container that
when the same is opened said stamp will be torn
and mutilated. Acts 1924, pp. 25, 27.
§ 993(152). Cigarette and cigar dealers; no other
occupation tax to be levied. — Dealers in cigarettes
and cigars shall not be required to pay any addi-
tional occupation tax to the State to that imposed
by this Act, nor shall any other tax be required of
cigar dealers. Acts 1923, pp. 39, 41.
§ 993(153). Cigarette and cigar dealers; expenses
of carrying out law. — The expenses of carrying out
the provisions of this Act, including the necessary
clerical help, cost of stamps and incidental ex-
penses, shall be defrayed out of the funds collected
hereunder, when said expenses are approved by the
Governor, and the commissioner of revenue in his
annual report to the General Assembly shall in-
clude a full and cempleted itemized statement of
such expenses. Acts 1923, Ex. Sess.. pp. 69, 70.
Necessary Allegations. — The accusation must allege all the
three elements enumerated in this section as constituting
the offense. The failure to fail to allege the sale or offer
to sell is fatal. Mills v. State, 33 Ga. App. 151, 153.
§ 993(154). Cigarette and cigar dealers; funds
for state tuberculosis sanatorium; and payment of
pensions.— The funds raised by the provisions of
this Act, to the amount of $250,000.00 for the year
1924, and $250,000.00 for the year 1925, be and the
same are hereby, appropriated to the Board of
Health for the purpose of building and equipping
new buildings for the State Tuberculosis Sana-
torium at Alto. All sums remaining after the pay-
ment to said Board of Health for said sanatorium
are hereby appropriated to pay pensions now due
and to become due under the pension Acts, ap-
proved August 5th, 1919, August 18th, 1919, and
August 19th, 1919, the same to be paid out on
warrants drawn by the Governor on requisition ot
the Pension Commissioner as provided by law.
Acts 1923, 39, 40.
As to the penalty for the violation of this act, see §
464 (2), P. C.
Constitutionality.— The Act of 1923, p. 39, etc., is not
unconstitutional on .the ground that it contains or refers
to more than one subject-matter; or violates uniformity of
taxation, complete protection of property, due process, un-
reasonable and compensatory provisions, or the interstate-
commerce clause of the federal constitution. Lloyd v.
Richardson, 158 Ga. 633, 124 S. E. 37.
§ 993(155). Fuel distributors; terms defined. —
The terms used in this Act, §§ 993 (156) -993 (160)
shall be construed as follows:
"Distributors" shall include any person, associa-
tion of persons, firm or corporation, whether resi-
dent or located, who imports or causes to be im-
ported, fuels as herein defined, into the State; and
also any person, association of persons, firm or cor-
poration, who produces, refines, manufactures or
compounds fuels as herein defined, within the
State.
"Fuels" shall include gasoline, benzol, naphtha.
§ 993(156)
AD VALOREM, SPECIFIC AND OCCUPATION TAXES
§ 993(164)
and other motor fuels commonly used in internal
combustion engines.
Provided, that nothing contained in this section
or in this Act shall apply to kerosene oil. Acts
1921, pp. 83, 84.
As to the penalty for the violation of this act, see §
476 (11), P. C.
§ 993(156). Fuel distributors; amount of tax. —
Distributors who sell fuels in this State (except
those importing and selling it in the original
packages in which it was brought into the State)
shall pay an occupation tax of three and one-half
cents per gallon upon every gallon of gasoline
sold, provided this Act shall not be so construed
as to cause double taxation on any of the products
specified in § 993(155) except where such products
are shipped out of and back into this State for
distribution, and provided further that this Act
shall not apply to fuel oils, refined, manufactured,
produced or compounded within the State of
Georgia and sold without the State of Georgia, for
consumption or use without the State of Georgia.
Acts 1921, pp. 83, 84; 1922, p. 19; 1923, p. 41; 1925,
p. 65.
§ 993(157). Fuel distributors; registry. — Every
such distributor shall register with the Ordinary
of each county in which he or they may be en-
gaged in selling fuels, on or before September 1st,
1921, and on the same day of the same month of
each succeeding year, giving his place of business
and postoffice address, in a well bound book to be
kept for that purpose by the Ordinary of each
county. Acts 1921, pp. 83„ 84.
§ 993(158). Fuel distributors; invoices and bills.
— Such distributor shall keep and preserve all in-
voices and bills of fuels sold for the period of one
year, and submit the same to the Comptroller-
General of this State, whenever required by him.
Acts 1921, pp. 83, 84.
§ 993(159). Fuel distributors; returns of fuels
sold. — All distributors of fuels in this State shall
make quarterly returns to the Comptroller-Gen-
eral of all fuels sold by them to others and for all
fuels sold by such distributors at their service
stations. The first of said returns shall be made
on October 1st, 1921, and to embrace the period
between the date of this Act and said date, and
quarterly thereafter. Acts 1921, pp. 83, 85.
§ 993(160). Fuel distributors; returns of gallons
of fuels sold. — Every distributor selling fuels as
aforesaid, shall make returns to the Comptroller-
General on October 1st, 1921, and quarterly there-
after, of the number of gallons of fuels sold, which
shall be sworn to before an officer of this State
authorized to administer oaths; and shall make the
first payment of said tax on October 1st, 1921, and
quarterly thereafter. Acts 1921, pp. 83, 85.
As to the penalty for the violation of this act, see §
476 (11), P. C.
§ 993(161). Fuel distributors; collection and
distribution of taxes.-— All monies collected under
the provisions of said Act as amended herein, shall
be paid into the State Treasury. A clerk is here-
by provided in the Comptroller-General's office
whose duty shall be to collect said tax. Said clerk
to be appointed by the Comptroller -General and
to be paid a salary not to exceed four thousand,
two hundred dollars a year, payable out of said
tax, and the Treasurer of the State of Georgia is
hereby authorized to set up an appropriation for
the payment of said salary of the sum of four
thousand, two hundred dollars before making any
distribution to Counties, Highway Department or
General Fund, and one-third of the remaining
fund shall be credited to the General Fund for the
purpose of supplying the deficiency in the State
Treasury arising out of the discount of the rental
of the Western and Atlantic Railroad, as provided
by the Act of 1921, pages 230-1, and Acts amenda-
tory thereto, and the remaining amount to the
General Fund of the State; one-third of the re-
maining fund shall be distributed to the counties
to be used exclusively for the construction and
maintenance of the public roads, such distribution
to be made by the State Treasurer before the 15th
day of October, January, April and July each year,
the amount distributable on account of the collec-
tion of the preceding three months being paid to
each county treasurer or other county officer or
officials authorized to receive county funds in
counties not having a county treasurer on the
basis of the pro rata part of the State-Aid System
road mileage in said county to the entire system,
to be expended upon public roads and bridges, and
the remaining one-third of the fund shall be set
apart as a special fund of the State-Aid Road Fund
to be credited to the State Highway Department
for the construction of the State-Aid System of
Roads and for the purpose of matching the Fed-
eral Aid authorized by the United States Govern-
ment for the construction of highways and bridges
on said system of roads; provided further that the
one-third of the remaining fund first mentioned
shall likewise as in the manner last described be
set aside to the Highway Department upon the ex-
piration of the present period of the discount of
the Western and . Atlantic Railroad rental. Acts
1923, p. 41; 1925, p. 66.
§ 993(162). Fuel distributors; collection, etc., of
additional tax. — The proceeds of the additional
one-half cent per gallon levied in § 993(156) shall
Ibe appropriated to the State-Aid Road Fund for
construction on the State-Aid System of Roads. The
additional tax herein levied shall be returned and
collected and paid along with the original tax of 3
cents per gallon and in like manner as said tax is
collected. Acts, 1925, p. 65.
§ 993(163). Fuel distributors; disbursement of
State-Aid Road Fund. — The disbursement of the
State-Aid Road Fund shall be made monthly at
the end of each calendar month upon warrants
drawn by the Governor upon itemized statements
showing all expenses of any kind whatsoever: Pro-
vided, that the Governor if he deems it expedient
and wise may draw warrants for the need of the
State Highway Board for the month at the begin-
ing of or during the month upon a budget cover-
ing the month's proposed operations. Acts 1923, p.
41.
§ 993(164). Motor-fuel distributors; classifica-
tion and designation; solvent liquids exempted.—
All persons, firms, and corporations who shall
bring or have brought into this State any motor-
[ 218 ]
§ 993(165)
EXEMPTION OF PROPERTY
§ 998
fuel, whether gasoline or other substance, for the
purpose of distributing the same from tank-cars or
other original packages for use within this State,
are hereby classified as and declared to be dis-
tributors of such motor-fuels, and every such
distributor shall pay a tax equal to the tax now
levied or which hereafter may be levied upon dis-
tributors selling such fuels within this State. It is
not intended that any manufacturer or other per-
son, firm, or corporation that may bring or have
brought into this State gasoline, naphtha, or
benzine, intended for and which actually is used as
a solvent, or in any other way than as a motor-
fuel, shall be deemed to be a distributor of motor-
fuels within the meaning of this Act. Acts 1925, p.
68;
As to the penalty for the violation of this act, see §
476 (12), P. C.
§ 993(165). Motor-fuel distributors; distribu-
tion of proceeds of tax. — The proceeds of the tax
imposed by this Act shall be distributed in the
same manner as the tax on distributors selling
fuels in this State is now or hereafter may be dis-
tributed. Acts 1925, p. 68.
§ 983(160). Motor-fuel distributors; returns
and registration. — Each motor-fuel distributor, as
defined by this Act, shall make the same returns,
register, and pay the tax herein levied in the same
manner as is now or hereafter may be required of
distributors selling fuels in this State; provided
that users of gasoline or other motor-fuel shall
pay the tax on the basis of the withdrawal or dis-
tribution from tank-cars or other original pack-
ages. Acts 1925, p. 68.
§ 993(167). Motor-fuel distributors; common car-
riers report. — It shall be the duty of all railroads,
ships, or other common carriers to, at the end of
each day's business, make a report to the Comp-
troller-General of this State, showing all deliveries
made by them of gasoline or other motor-fuel
made during said day's business, which reports
shall give the following details: the name and
address of the consignor, the name and address of
the consignee, the car number and initial, the net
weight of the shipment if in car lots, and the date
of delivery. Acts 1925, p. 68.
§ 993(168). Motor-fuel distributors; effect of
partial invalidity. — If any portion of this Act
should be declared unconstitutional, it shall not
affect any other provision of this Act. Acts 1925, p.
ARTICLE 2.
Exemptions from Specific Occupation Taxes.
§ 994. Exemptions from specific and occupa-
tion taxes. — Blind persons, persons with one arm
or one leg, and all other persons having lost a
limb or limbs, or deformed by nature, so as to
render them unfit for manual labor, relieved by the
proviso in paragraph 1, section 917, [993(4) of this
code] from the payment of taxes designated in that
paragraph, shall be relieved also from the payment
of the taxes designated in sections 942, 943, 944,
945, and 946, [§§ 993(56), 993(57), 993(99)] and
also from payment of any county or municipal
license tax, if carrying on and dependent upon the
kinds of business designated therein; provided,
that before any person shall be entitled to the
benefit of any other exemptions provided for in
this section, he shall go before the ordinary of the
county in which he proposes to carry on said
business and make and file an affidavit setting
forth the facts that he is entitled to such exemptions,
and that he is the proprietor and owner of the
business he proposes to conduct, and is conducting
the same for himself and not for others.
A "junk-dealer," with a fixed place of business, is not
exempted, by this section, from payment of a city license -
tax. Weatherlv v. Athens, 18 Ga. App. 734, 735, 90 S.
E. 494.
§ 995. Pensioners may practice medicine with-
out being taxed. — Confederate soldiers who are on
the indigent pension roll of this State, and who are
otherwise, under the laws of Georgia, entitled to
practice medicine, are authorized to practice their
profession without being subject to any tax there-
for. Acts 1899, p. 99.
§ 996. Parks, etc., exempt for special tax when
owned by Confederate soldier. — Every park or
place where baseball, football, or any similar game
is played, or race tracks where bicycle, horse, or
other races of similar character are had, where
admission fees are charged, shall be exempt from
any special tax thereon, whenever the proprietor
or owner is a maimed or disabled Confederate
soldier. Acts 1899, p. 100.
§ 997. Affidavit to obtain exemption. — Anyone
obtaining the benefits of the preceding section
must first make proof by his affidavit, before the
ordinary of the county where said park or place or
track is, that his claim to the benefits of the section
are true and valid, and such affidavit must be
approved by the ordinary, before said property
shall be held exempt from the special tax by the
tax-collector of said county.
ARTICLE 3.
Exemption of Property.
§ 998. (§ 762.) Property exempt from taxation.
— The following described property shall be ex-
empt from taxation, to-wit: All public property,
places of religious worship, and place of burial; all
institutions of purely public charity; all buildings
erected for and used as a college, incorporated
academy or other seminary of learning, and also
all funds or property held or used as endowment
by such colleges, incorporated academies, or
seminaries of learning, provided the same is not
invested in real estate, and provided further that
said exemption shall only apply to such colleges,
incorporated academies, or other seminaries of
learning as are open to the general public; pro-
vided further that all endowments to institutions
established for white people shall be limited to
white people, and all endowments to institutions
established for colored people shall be limited to
colored people; the real and personal estate of any
public library, and that of any other literary
association, used by or connected wTith such^ li-
brary; all books, philosophical apparatus, paint-
ings and statuary of any company or association,
[219]
§ 998
EXEMPTION OF PROPERTY
§ 998
kept in a public hall, and not held as merchandise
or for purposes of sale or gain; provided the above
described property so exempted be not used for
purposes of private or corporate profit or income;
and all laws exempting property from 'taxation,
other than the property herein enumerated shall
be void. Acts 1878-9, p. 33; 1919, p. 82.
Cross References. — See generally, 10 Cum. Dig. 767; 6
Enc. Dig. 88.
As to constitutional provisions on exemptions from tax-
ation, see §§ 6554, 6556. As to exemption of municipalities
from payment of motor vehicles license fee, see note to
§ 1770 (22).
Editor's Note. — The only effect of the amendment of
1919 (Acts 1919, p. 82) was to extend the operation of the
statute to include in the exemption allowed to institutions,
the exemption of endowment funds for such institutions,
not consisting of realty, provided the institution be open
to the public, and endowments for white people be used
exclusively for white people, and those for negroes ex-
clusively for negroes.
Strictly Construed.— This section is to be strictly con-
strued. Brenau Ass'n v. Harbison, 120 Ga. 929, 48 S. E-
363; Gainesville v. Brenau College, 150 Ga. 156, 162, 103
S. E. 164. See also, 6 Enc. Dig. 84.
Constitution Not Self- Executing. — The constitution does
not itself exempt anything, but only grants power to the
general assembly to exempt the enumerated property, ex-
pressly denying it power to exempt any other. Trustees v.
Bohler, 80 Ga. 159, 7 S. E. 633. See also, 6 Enc. Dig. 84.
Mandamus for Illegal Exemption. — If there has been an
illegal exemption, and a refusal to levy, the levy may be
compelled by mandamus. Ford v. Cartersville, 84 Ga. 213,
10 S. E. 732.
Test of Exemption. — It is the use made of private prop-
erty which renders it exempt or non-exempt under this
section, and not the purchase and sale thereof. Georgia
Mausoleum Co. v. Dublin, 147 Ga. 652, 653, 95 S. E. 233.
Nor the use of the income derived from it. Mundy v. Van
Hoose, 104 Ga. 292, 30 S. E- 783; Trustees v. Bohler, 80 Ga.
159, 7 S. E- 633; Massenburg v. Grand Lodge, 81 Ga. 212,
7 S. E. 636. Nor the declared purpose of incorporation.
Baggett v. Georgia Conference Ass'n, 157 Ga. 488, 121 S.
E. 838.
"The exemption is not a release in personam, but a re-
lease in rem, and the res to which the release applies must
be found and identified by the officer, or no exemption
can be recognized." Trustees v. Bohler, 80 Ga. 159, 165,
7 S. E. 633.
"Until property gets into the form of the enumerated
items or articles, no exemption obtains." Trustees v. Boh-
ler, 80 Ga. 159, 164, 7 S. E- 633.
"Property used to produce income to be expended in char-
ity is too remote from the ultimate charitable object to be
exempt." Trustees v. Bohler, 80 Ga. 159, 164, 7 S. E.
633.
"The scheme of exemption as to other than public prop-
erty seems to be this: to exempt all that is used imme-
diately and directly as a part of the establishment in the
conduct of the regular business there carried on, but not
such as may be devoted to other uses, such as farming,
merchandising, manufacturing, etc., and from which profit
or income is derived." Trustees v. Bohler, 80 Ga. 159,
163, 7 S. E. 633.
Lands held in trust to appropriate the annual product
to the erection of a poor-house and the support of its in-
mates forever, are not exempt. The poor-house, when
erected, will be exempt, but not detached property from
which its support is to be derived. Trustees v Bohler
8G Ga. 159, 7 S. E. 633.
Fees Charged and Used for Institution.— "All buildings
erected for and used as a college, incorporated academy,
or other seminary of learning" are exempt from taxa-
tion, even if in the operation of the institution income is
derived from tuition fees where the fees themselves are
not used for the purpose of private or corporate profit or
income, but are appropriated to the maintenance of the
institution. Linton v. Lucy Cobb Institute, 117 Ga. 678,
45 S. E. 53; Brewer v. American Missionary Ass'n 124
Ga. 490, 52 S. E. 804.
Property Partly Used for Charity.— Where the property
of an institution of purely public charity is used partly
for purposes of corporate income, the most that the cor-
poration can claim is, that the comparative value of the
part used for income, and the part not so used, may be
distinguished in making its tax returns, and that the lat-
ter part by due apportionment of value, shall be spared
from taxation, under this section. Massenburg v
Lodge, 81 Ga. 212, 7 S. E- 636; Hurlbutt Farm v. Med-
ders, 157 Ga. 258, 121 S. E- 321.
Necessary Land Exempted. — Buildings which are exempt
from taxation under this section embrace the land upon
which such buildings are located and the land adjacent
thereto necessary for their proper use. Gainesville v..
Brenau College, 150 Ga. 156, 103 S. E. 164; Hurlbutt Farm
v. Medders, 157 Ga. 258, 121 S. E- 321; Baggett v. Geor-
gia Conference Ass'n, 157 Ga. 488, 121 S. E. 838.
Public Property — In General. — "Public property is not sub-
ject to taxation. 'This immunity rests upon the most funda-
mental principles of government; being necessary, that the
functions of government be not unduly impeded, and that
the government be not forced into the inconsistency of
taxing itself in order to raise money to pay over to it-
self.' " State v. Western, etc., R. Co., 136 Ga. 619, 625„
71 S. E. 1055; Penick v. Foster, 129 Ga. 217, 58 S. E- 653.
"Public property, in the sense as used in the provision
for rendering property exempt, means property belonging-
to the state, or the political divisions thereof, such as coun-
ties, cities, towns, and the like." Mundy v. Van Hoose,
104 Ga. 292, 299, 30 S. E. 783.
Same — Municipal Bonds. — Bonds issued by a municipal
corporation of this state, as evidence of a loan made to it.
are instrumentalities .of the government which creates the
municipal corporation and are not taxable by this state or
any county thereof while in the hands of a resident of this-
state. Penick v. Foster, 129 Ga. 217, 58 S. E- 653.
Same — Used for Profit. — The proviso at the end of the
statute which excludes property "used for purposes of pri-
vate or corporate profit or income," does not apply to pub-
lic property. Public property is not taxed, whether income
be derived from it or not. Trustees v. Augusta, 90 Ga. 634,
647, 17 S. E. 61.
Same — Dispensary. — A building and a stock of liquors-
owned by a municipal corporation and operated by it as
a dispensary are "public property" within the meaning of
this section, and, as such, are exempt from taxation. This
is so although the town have no legal authority to main-
tain and operate a dispensao\ Walden v. Whigham, 1201
Ga. 646, 48 S. E. 159.
Same — Armory. — Public property, within the meaning of
this section, embraces only such property as is owned by
the state, or some political division thereof, and title -to
which is vested directly in the state*, or one of its subor-
dinate political divisions, or in some person holding ex-
clusively for the benefit of the state, or a subordinate pub-
lic corporation, and an armory "owned" and occupied by a
command of the volunteer military forces of the state are
not within the exemption. Board v. Atlanta, 113 Ga. 883,
39 S. E. 394.
Same — Motor Vehicles of Municipality. — An act imposing
certain license fees upon every owner of motor vehicles and
motor cycles is not invalid as against municipalities own-
ing those vehicles, on the ground that they are public prop-
erty and exempt under this section.
Exemption from Assessments. — Property occupied by a
church and used solely for church purposes is not exempt,
under this section, from payment of local street improve-
ment assessments. Trustees v. Atlanta, 76 Ga. 181, over-
ruled. Atlanta v. First Presbyterian Church, 86 Ga. 730r
13 S. E. 252.
Effect of Act Not Providing for Exemptions. — The fail-
ure of an act providing for a general tax, ad valorem on
all property, to make any reference to the property per-
manently exempted from taxation by this section, does not
render the act unconstitutional or make such property tax;
able thereunder. Blount v. Munroe, 60 Ga. 61, 66. See
also, Coleman v. Board, 131 Ga. 643, 63 S. E. 41.
Illustrations— Tombs. — Tombs or crypts in a mausoleum,
owned by a private corporation, having no value except for
burial purposes, can not be used for purposes of private or
corporate profit or income, and are exempt from taxation,
together with the ground where located, under this section.
Georgia Mausoleum Co. v. Dublin, 147 Ga. 653, 95 S. E-
233
Same — Masonic Lodge. — A masonic lodge being a charit-
able institution, is exempt from taxation. Savannah v.
Solomon's Lodge, 53 Ga. 93. But see note of Massenburg
v. Grand Lodge, 81 Ga. 212, 7 S. E- 636, under catchline
Property Partly Used for Charity.
Same — Parsonage.^ — -While places of religious worship are
among the property exempted this does not include par-
sonages. Wardens of St. Mark's Church v. Brunswick,.
78 Ga. 541, 3 S. E- 561.
Same — Hospitals, Almshouses, Asylums. — "Hospitals, alms-
houses, asylums for the insane, for the deaf and dumb, or
the blind, orphan asylums, homes of various kinds, soup-
houses, etc., permanently established and open, without
charge, to the whole public, or to the whole of the classes
insti-
Grand I for whose relief they are intended or adapted, are
[ 220 ]
§ 999
TAX EXEMPTION ELECTIONS
§ 1001(7)
tutions of the exempt- order, irrespective of their owner-
ship, and without regard to whether they have behind
them, or connected with them, any institution in the per-
sonal or ideal sense of the term, or not." Trustees v.
Bolder, 80 Ga. 159, 161, 7 S. E. 633.
Same — Educational Institutions. — Property of a corpora-
tion having a capital stock formed for the "business" of
•conducting an educational institution, and which has the
absolute ownership of all the realty and personalty em-
ployed in such enterprise, with the right to convey it at
will and to make any desired disposition of the income de-
rived from the fees charged for tuition and board, is not
exempt from taxation, under this section. Ass'n v. Har-
bison, 120 Ga. 929. 48 S. E- 363.
Grounds, buildings, and other property occupied and used
by the owner or owners thereof for conducting -a college or
school, for attendance upon which charges for board and tui-
tion are arbitrarily made without any reference to the ac-
tual cost of conducting the school, are subject to taxation.
Mundy v. Van Hoose, 104 Ga. 292, 30 S. E. 783.
The property of an institution for the education of worthy
but poor boys and girls, instructing them in general edu-
cational and agricultural subjects, if used for purely "re-
ligious, charitable, and educational" purposes, is not taxa-
ble, "provided its income is not used, nor intended to be
used, as dividends or profits." Waycross v. Wavcross Saw,
etc., Co., 146 Ga. 68, 90 S. E. 382. See also, Hurlbutt Farm
v. Medders, 157 Ga. 258, 121 S. E. 321; Baggett v. Geor-
gia Conference Ass'n, 159 Ga. 488, 121 S. E- 838.
§ 999. (§ 763.) What toll-bridges exempt from
taxation. — When any person residing in or out of
this State is the proprietor of any toll-bridge, or
"bridge on which toll may be lawfully charged in
this State, such bridge shall be considered and
treated as public property, and exempt from taxa-
tion whenever and so long as the proprietor shall
allow it to he used absolutely and entirely as a free
hridge, and shall keep the same in good repair and
safe condition for the free use of the public. Acts
1889, p. 141.
§ 999(1). Certain farm products exempt from
taxation. — All farm products including baled
cotton grown in this State and remaining in the
hands of the producer but not longer than for the
year next after their production shall be exempt
for taxation. Acts 1913, p. 122.
Effect upon Other Laws. — This section did not change the
general rule and policy of the state that personal prop-
erty is taxable only at the domicile of the owner if a resi-
dent of this State. Blakelv v. Hilton, 150 Ga. 27, 35, 102
S. E. 340.
Allegations. — Failure to allege cotton was grown by holder
•or upon his land so as to exempt from city taxation held
immaterial in particular case. Blakely v. Hilton, 150 Ga.
27, 35, 102 S. E. 340.
§ 1000. (§ 764.) Unlawful exemptions. — No
county authority shall exempt from taxation any
-manufactory, industry, enterprise, or any property
of any kind not now exempt by law. Acts 1889, p.
35.
§ 1001. (§ 765). Tax-receiver. — The tax-re-
ceiver shall have all property, whether exempted
by the county authorities or not, which is required
by law to be returned for taxes in the several
counties in this State, returned for taxation, and
the tax-collector shall collect the taxes upon such
property.
ARTICLE 3A.
Tax Exemption Elections.
§ 1001(1). Called by ordinary upon petition of
voters or recommendation of grand jury. — The
Ordinary, upon petition of five per cent of the
qualified voters of any county, or upon the recom-
mendation of the Grand Jury in any county in
Georgia, is hereby authorized and directed to call
an election within not less than thirty days and
not more than ninety days after such recommenda-
tion to submit the question of whether or not the
tax levying authorities of such county shall ex-
empt from taxation for a space of five years such
property as is provided in Article 7, Section 2,
Paragraph 2-a of the Constitution of the State of
Georgia. Acts 1<i25, pp. 259, 2b0.
§ 1001(2). Superior court to act if Ordinary
disqualified. — In case the Ordinary of such county
is for any reason disqualified or fails to act as here-
in provided, the Superior Court of such county
may act in his stead and perform all of the duties
herein provided for the Ordinary to perform. Acts
1925, pp. 259, 2fi0.
§ 1001(3). Manner of holding election ballots.
— The manner of holding said election, the prepa-
ration of the ballots, the counting of the ballots in
such election shall be the same as is now pro-
vided for holding elections for the members of the
General Assembly in such county. Acts 1925, pp.
259, 260.
§ 1001(4). Returns. — The managers shall be
appointed b3r and the result of said election shall
be declared by the Ordinary, or in case as pro-
vided in § 1001(2), by the Clerk of the Superior
Court, and the record of the result of such election
shall be entered upon the minutes of the Court of
Ordinary of said count}'. Acts 1925, pp. 259, 260.
§ 1001(5). Advertisement. — Said election shall
be advertised once a week for four weeks im-
mediately preceding the date of said election in the
newspaper publishing legal advertisements in said
county. Acts 1925, pp. 259, 261.
§ 1001(6) Elections authorized without action
of grand jury or ordinary. — The governing bod-
ies of any municipal corporation in the State of
Georgia are hereby authorized to propose, without
any recommendation of the Grand Jury or ac-
tion of the Ordinary, to the qualified voters of
said municipal corporation said, tax exemption
above enumerated, and to call such election as
in this Act provided, and the manner of holding
said election shall be the same as elections in
said municipal corporation for its officials. The
method of preparing and counting the ballots
shall be the same as provided for the holding of
municipal elections in such municipal corpora-
tions, and said election in such municipal corpor-
ation shall be advertised once a week for four
weeks immediatel}-- preceding the date of such
election in a newspaper having general circula-
tion or carrying the advertisements for such
municipal corporation. The ordinance -'calling
such election shall specify the period of time not
exceeding five years, for which said period of
tax exemption shall apply in said city. Acts 1925,
pp. 259, 261.
§ 1001(7). Ballots. — In said county election
those favoring said five year tax exemption as
herein set out, shall have written or printed on
their ballots, "For a five year tax exemption, for
persons coming within the provisions of Article
7, Section 2, Paragraph 2-a of the Constitution of
Georgia, as provided in Section 1, Acts of De-
[221
§ 1001(8)
TAX EXEMPTION ELECTIONS
§ 1001(13)
cember 19, 1923"; and those opposing said five
year tax exemption, as herein set out, shall have
written or printed on their ballots, "Against a
five year tax exemption for persons coming with-
in the provisions of Article 7, Section 2, Para-
graph 2-a of the Constitution of Georgia, as pro-
vided in Section l, Acts of December 19, 1923.'
In elections held, in municipal corporations, those
favoring a term of tax exemption fixed by the
municipal authorities, calling said election, shall
have written or printed on their ballots "For
a (insert the proposed time of) tax exemption
for persons coming within the provisions of
Article 7, Section 2, Paragraph 2-a of the Con-
stitution of Georgia, as provided in Section 1,
Acts of December 19, 1923," and those opposed
to said proposed term of tax exemption, shall
have written or printed on their 'ballots "Against
a (insert the proposed time of) tax exemption
for persons coming within the provision of Ar-
ticle 7, Section 2, Paragraph 2-a of the Constitu-
tion of Georgia, as provided in Section 1, Acts
of December 19, 1923." Acts 1925, pp. 259, 261.
§ 1001(8). Expenses of election. — In case of a
county election, a warrant shall be drawn on the
county treasurer to cover the expense of such
election, as herein provided; and in case of a
municipal corporation election, such municipal
corporation shall pay the expenses of said elec-
tion. Acts 1925, pp. 259, 262.
§ 1001(9). Favorable elections irrevocable for
term of exemption. — If a majority of the electors
voting in such county or in case of a municipal
corporation, in such municipal corporation, shall
vote in favor of said proposed tax exemption, the
same shall go into effect, as provided in the above
mentioned provisions of the Constitution, and
in each case where the same shall go into effect,
it shall be irrevocable by the authorities of such
county or municipal corporation for the term for
which said exemption was proposed and carried,
not to exceed five years in any instance. Acts
1925, pp. 259, 262.
§ 1001(10). Second election, if first unfavor-
able.— In case said election, herein provided for,
should fail to carry, the Grand Jury of . such
county or municipal corporation may at any time
after ninety daj^s from the time the result of said
election is declared, if they shall deem fit and
proper, in case a county recommend that another
election be held, as herein provided, and in case
of a municipal corporation, call another election
either by ordinance or resolution, and in that
event another election shall be called within not
less than ninety days after such recommendation
shall have been made or such ordinance passed,
and said additional election may be held as here-
in provided, and the result thereof declared as
herein provided, and the result of said election
shall have the same force and effect as the elec-
tion first above mentioned in case it had been
carried. Acts 1925, pp. 259, 262.
§ 1001(11). Polls. — Polls shall be opened and
closed in case of a county election as is provided
by law for elections of representatives, and in
case of a municipal corporation as is now pro-
vided by law for the election of its officials. Acts
1925, pp. 259, 263.
§ 1001(12). Plants exempt for five years after
construction. — In said county election shall carry
in favor of said tax exemption any person, nat-
ural or artificial, a resident of this State, who
may after January 1, 1924, build, equip, establish
or enlarge a plant for the manufacture or pro-
cessing of cotton, wool, linen, silk, rubber, clay,
wood, metal, metallic or non-metallic minerals,
or combinations of the same, cream or cheese
plant, or for production or development of elec-
tricity, shall as to such building enlargement, or
equipment be exempt from all county ad valorem
taxes for a period of five years from the date of
the beginning of the building, equipment or en-
largement of such plant. If any municipal elec-
tion shall carry, in favor of a proposed tax
exemption, said persons, above referred to, shall
likewise be exempt from all city ad valorem taxes
for the terms proposed by the governing authori-
ties of such municipality in no event to exceed
five years, from the date of the beginning of the
building, equipment or enlargement of such plant.
Acts 1925, pp. 259, 263.
§ 1001(13). Repeal of five year period of
exemption; election. — Said five year period of tax
exemption, as to counties, and the term of tax
exemption, made effective in any municipal cor-
poration, under the provisions of this Act, may
be repealed if a majority of the voters, voting in
an election called, held and paid for, in the man-
ner provided hereinbefore, shall vote in favor of
such repeal; and elections for the repeal of said
tax exemptions shall be called by the Ordinal
of any county upon petition of forty per cent ol
the registered voters of any such county; or upon
recommendation of two successive grand juries;
and shall be called by the governing authorities
of a municipal corporation upon petition of forty
per cent of the registered voters of such munic-
ipal corporation, or upon a vote of two-thirds
of the governing body of said municipal corpora-
tion therefor. Those voting to repeal any tax
exemption shall have written or printed on their
ballots, the words "For repeal of Tax exemp-
tions, obtaining in (the name of the county or
municipal corporation)," and those voting
against said repeal shall have written or printed
on their ballots the words "Against repeal of
tax exemptions, obtaining in (the name of the
county or municipal corporation)". The result of
any such election shall be declared by the author-
ity calling said election. If the result of any such
election shall be in favor of the repeal of any
such tax exemptions, said repeal shall become ef-
fective in any such county or municipal corpora-
tion on and after the first day of January im-
mediately following such election. The election
for the repeal of tax exemptions shall not be held
in any county or municipal corporation less than
five years apart. The repeal of any period of tax
exemption by any county or municipal corporation
shall not operate to effect the term of exemption
to which any person is entitled, by reason of hav-
ing built, equipped, established or enlarged any of
the plants referred to in § 1001(12): but any such
person shall be entitled to enjoy the full term of
the tax exemption obtaining in said county or
municipal corporation, wherein said person estab-
lished any such building, equipment or enlarge-
22]
§ 1002
PERSONS AND PROPERTY SUBJECT TO TAXATION
§ 1008
ment from the date of the beginning thereof.
Acts 1925, pp. 259, 263.
ARTICLE 4.
Persons and Property Subject to Taxation.
§ 1002. (■§ 767.) Taxable property. — All real and
personal estate whether owned by individuals or
corporations, resident or non-resident, is liable to
taxation. Acts 1851-2, p. 288.
Cross References.— See generally, 10 Cum. Dig. 755; 12
Enc. Dig. 89.
As to what constitutes taxable personal property, see §
1002 (1). As to who is liable for the tax on property, see
§ 1018.
Dower. — Dower in real estate, assigned to a widow, is
taxable against the widow. Austell v. Swann, 74 Ga. 278,
281.
Income. — Income is not property in the sense the word
property is used in this section, but is the fruit of prop-
erty. Waring v. Savannah, 60 Ga. 93, 100.
Bonds of the State are not taxable property. Miller v.
Wilson, 60 Ga. 505, 507.
"Personal estate," as used in this section, includes such
of the capital of corporations, liable to taxation on their
capital, as shall not be invested in real or personal prop-
erty, but the corporation, as such, is not taxable hereun-
der. Augusta v. Walton, 37 Ga. 620, 621.
§ 1002(1). What personal property to include. —
Personal property shall be construed, for purposes
of taxation, to include all goods, chattels, moneys,
credits and effects, whatsoever they may be, all
ships, boats and vessels belonging to the inhabi-
tants of this State, whether at home or abroad,
and all capital invested therein; all money within
or without the State due the person to be taxed;
all stocks and securities in corporations in other
States owned by citizens of this State unless ex-
empt by the laws of the United States or of this
State. Acts 1884-5, pp. 28, 30.
Extent to Which Section in Force. — So far as this section
relates to the taxation of shares of stock of foreign cor-
porations, held by citizens of this state, it is still in force;
so far as it relates to the taxation of shares of stock of
Georgia corporations which are required to be returned for
taxation by the presidents or their agents to the comp-
troller-general, it was repealed by Act of 1886, p. 24 (Code,
§ 1087); and so far as it related to the taxation of shares
of stock of Georgia corporations whose capital stock was
required to be returned for taxation by the president thereof,
it was repealed by the Act of 1888, p. 29. Georgia R., etc.,
Co. v. Wright, 125 Ga. 589, 594, 54 S. E. 52.
Shares in Foreign Corporations. — Shares of stock of for-
eign corporations, owned in this state, are subject to taxa-
tion. Georgia P., etc., Co. v. Wright, 124 Ga. 596, 598, 53 S.
E. 251; S. C, 125 Ga. 589, 54 S. E. 52; Coca Cola Co. v. At-
lanta, 152 Ga. 558, 568, 110 S. E. 730; Wright v. Louisville,
etc., R. Co., 195 U. S. 219, 49 L. Ed. 167, 25 S. Ct. 16.
Notes and accounts, credits of a foreign corpora-
tion maintaining a place of business in this state, are tax-
able. Armour Packing Co. v. Savannah, 115 Ga. 140,
41 S. E- 237; Armour Packing Co. v. Augusta, 118 Ga.
552, 45 S. E. 424; Armour Packing Co. v. Clark, 124 Ga.
369, 52 S. E. 145.
§ 1003. Property shall be returned at its value. —
In returning property for taxes, all property shall
be returned at its value. Promissory notes, ac-
counts, judgments, mortgages, liens of all kinds,
and all choses in action shall be given in at their
value whether solvent or partially solvent. Acts
1909, p. 72.
§ 1004. "Fair market value," meaning of. — The
intent and purpose of the tax laws or this State is
to have all property and subjects of taxation as-
sessed at the value which would be realized there-
from by cash sale, as such property and subjects
are usually sold, (but not by forced sale thereof,
[223
and the words "fair market value," when used in
the tax laws, shall be held and deemed, to mean
what the property and subjects would bring at
cash sale when sold in such manner as such prop-
erty and subjects are usually sold. Acts 1909.
p. 75.
No distinction is made between the property owned by
public -utility corporations and individuals. Ogletree v.
Woodward, 150 Ga. 691, 694, 105 S. E. 243.
§ 1005. Transient persons, property of, how
taxed.- — Whenever, at any time, during any year.
any transient person shall temporarily locate in
any county of this State for the purpose of selling
or disposing of goods, guano, wares, merchan-
dise, live stock, or any other article of value, it
shall be the duty of a tax-receiver, or, if his books
have been made up for the year, then of the tax-
collector, to call on such person to make a return
for taxation of all of his stock in trade at its fair
market value, and in case such persons shall neg-
lect to or refuse to return the same in twenty-four
hours after such demand, it shall be the duty of
such tax-receiver, or tax-collector, to assess and
determine the same, and the taxes shall be com-
puted thereon at the rate of assessment of the
State and country, and if the county rate has not
been fixed, for the current year, then the county
rate for the preceding year shall prevail. In case
such person shows that such property has been re-
turned and the taxes paid, then no further tax-
shall be assessed for such year. Acts 1901, p. 18.
§ 1006. Transient persons, who are. — All per-
sons or corporations who shall come into any
county of this State after the date fixed, by law
for the return of property for taxation, and carry
on the business indicated in the preceding section,
shall be deemed transient persons.
§ 1007. When executon may issue. — Whenever
any person subject under the foregoing sections
places himself in either of the positions wherein
an attachment may be issued against him as pro-
vided by the Code, his tax on said property for the
current year shall then become due, and the tax-
collector may issue an execution against him re-
gardless of the date thereof.
§ 1008. (§ 768.) Interest in land less than fee-
All persons owning any mineral or timber inter-
ests, or any other interest or claim in or to land
less than the fee shall return the same for taxation
and pay taxes on the same as on other property.
And any person failing to comply with the re-
quirements of this section shall be proceeded
against as a defaulting taxpayer. Acts 1889, p. 35.
As to liability of life tenants for taxes, see § 1618. As
to lessees of oyster beds returning the property, see § 1954.
Possibility of Reversion. — The possibility of reverter re-
maining in a grantor is not an estate in land and is not
subject to taxation. Gainesville v. Brenau College, 150 Ga.
156, 157, 103 S. E. 164.
A leasehold in a railroad for a full term of 101 years,
renewable in like periods forever, at the option of the les-
see, creates an interest in the property which is assessable
for taxation against the owner thereof. Wright v. Cen-
tral, etc., R. Co., 146 Ga. 406, 410, 91 S. E. 471. But this
case was reversed by the Supreme Court on the ground
that this obligation of a contract (charter) granting an ex-
emption of the property. Central, etc., R. Co. v. Wright.
248 U. S. 525, 63 L. Ed. 401, 39 S. Ct. 181.
Dower. — A widow is liable for the taxes on the real es-
tate assigned to her as dower. Austell v. Swann, 74 Ga.
278, 281.
§ 1009
PERSONS AND PROPERTY SUBJECT TO TAXATION
§ 1018
§ 1009. (§ 769.) Non-resident owners of property
liable. — Lands or other property belonging to citi-
zens of the United States, not residents of this
State, can not be taxed higher than the property of
residents, but such non-residents whether their
property in this State be real or personal, must
pay taxes on the same herein.
Power of State.— The State has ample power to tax the
estates of non-residents, living or dead, actually located
within the State. Blakely v. Hilton, 150 Ga. 27, 29, 102 S.
E. 340.
Notes and Accounts.— Notes, etc., held by non-residents
on residents of this State, although actually in the State
for collection, are not taxable under this section. Collins
v. Miller, 43 Ga. 336, 338.
Notes and accounts representing credit transactions be-
tween a foreign corporation, maintaining a place of busi-
ness in this State, and its customers are taxable. Armour
Packing Co. v. Savannah. 115 Ga. 140, 41 S. E- 237; Ar-
mour Packing Co. v. Augusta, 118 Ga. 552, 45 S. E- 424;
Armour Packing Co. v. Clark, 124 Ga. 369, 52 S. E- 145.
§ 1010. (§ 770.) Tax to be assessed by whom. —
All property or other thing of value, subject to
taxation, must be given in by the taxpayers as
hereinafter set forth, at its fair market value, and
must (be taxed according to its value on an assess-
ment to be made by the Governor, with the assis-
tance of the comptroller-general. Acts 1851-2, p
291; 1909, p. 37.
See §§ 1003, 1004.
The basic requirement, whether the property is returna-
ble to the comptroller-general or to the tax-receiver of
the several counties, is that all property shall be returned
and assessed at its fair market value. Ogletree v. Wood-
ward, 150 Ga. 691, 694, 105 S. E. 243.
Value of Debt. — It is not necessary that the owner of a
debt should return it at more than its fair market value,
and the fact that the debt is valued, with other debts, at a
gross amount, and the whole thus returned, can make no
difference, provided the value placed upon them is what
the taxpayer believes to be their fair market value. Lewis
v. Home, 44 Ga. 627, 629.
§ 1011. (§ 771.) Assessment, when to be made.
—Such assessment must be made each year, as
soon as the value of the taxable property is sub-
stantially known by the comptroller-general, who
shall assist the Governor in making the assess-
ment, and immediately send written or printed no-
tices to each tax-collector, of the Governor's or-
der, and also publish a copy thereof for the space
of thirty days in some public gazette at the seat
of government. Acts 1851-2, p. 291.
§ 1012. (§ 772.) Amount of taxes to be assessed.
— The amount of taxes assessed shall not exceed
the actual annual wants of the State government,
exclusive of the commissions of collectors and re-
ceivers, and any other expense that may be law-
fully incurred in assessing and collecting theni.
§ 1013. (§ 773.) In what funds taxes are to be
paid. — Taxes must be paid in gold or silver, or in
the bills of such 'banks as pay specie promptly, un-
less specially excluded by law or otherwise directed
by the Governor. Acts 1804. Cobb, 1051; Acts
1851-2, p. 291.
§ 1014. (§ 774.) Default and insolvent list. —
In netting the digest, the default list shall be de-
ducted for the receivers, and the insolvent list for
the collectors. Act 1847, Cobb, 1079; Acts 1851-2,
p. 292.
§ 1015. (§ 775.) Poll-tax.— No county, city, or
corporate authority shall assess or collect any
capitation tax whatever, except street tax, and
that onty after opportunity to work the streets.
Acts 1869, p. 162; 1870, p. 432; Acts 1842, Cobb,
1074.
As to constitutional restrictions, see § 6555.
License Taxes. — Taxes upon professions and occupations
of skill are not violative of this section. Burch v. Savan-
nah, 42 Ga. 596, 601.
§ 1016. (§ 776.) Bonds, notes, etc., of non-resi-
dents; bonds of other States. — Bonds, notes, or
other obligations for money, on persons in other
States, or of other States, or bonds of corporations
of other States, and shipping, are the subjects of
return and taxation in this State. Acts 1858, p. 105.
Constitutionality. — The form of taxation authorized by
this section in no way contravenes the interstate commerce
clause of the constitution of the United States. Atlanta
Nat. Bldg., etc., Ass'n v. Stewart, 109 Ga. 80, 86, 35 S.
E- 73.
Debts Follow Situs of Creditor. — Bonds, notes, and all
other mere evidences of debt, follow the situs of the cred-
itor, no matter where the debtor lives, and are taxable
where the owner resides. Augusta v. Dunbar, 50 Ga. 387,
393; Greene County v. Wright, 126 Ga. 504, 509, 54 S. E-
951; Blakely v. Hilton, 150 Ga. 27, 102 S. E- 340. For other
cases, see 12 Enc. Dig. 91; 10 Cum. Dig. 806; 12 Enc. Dig.
108.
Foreign Corporation Doing Business in State. — Notes and
accounts representing credit transactions between a for-
eign corporation, maintaining a place of business in this
State, and its customers are taxable. Armour Packing Co.
v. Savannah, 115 Ga. 140, 41 S. E. 237; Armour Packing
Co. v. Augusta, 118 Ga. 552, 45 S. E. 424; Armour Pack-
ing Co. v. Clarke, 124 Ga. 369, 52 S. E. 145.
Notes, etc., Held by Citizens. — This section, in terms,
taxes notes, bonds, etc., held by citizens of this State on
citizens of other States. Collins v. Miller, 43 Ga. 336, 338.
§ 1017. (§ 777.) Ungiranted lands and stock
corporations. — All lands held under warrants and
certificates, 'but not granted, are liable to taxation,
and all moneyed or stock corporations are liable
to taxation. Acts 1851-2, p. 289.
§ 1018. (§ 778.) Taxes charged against whom. —
Taxes are to be charged against the owner of
property if known and against the specific prop-
erty itself if the owner is not known. Life-tenants,
and those who own and enjoy the property, are
chargeable with the tax thereon. Hence, while the
public may treat property as belonging either to
the maker or the holder of a bond for titles, when
the latter is in possession, yet as between the par-
ties the one receiving the rents or enjoying the use
is liable for the tax.
See 12 Enc. Dig. 69.
As to duty of collector where owner is unknown, see §
1106.
In General.— The scheme of taxation in this State is that
taxes are chargeable against the owner, if known. Life-
tenants and those who own and enjoy the property are
chargeable with the tax thereon. Austell v. Swann, 74 Ga.
278, 281; Justice v. Parnin, 130 Ga. 869, 871, 61 S. E. 1044;
Wright v. Central, etc., R. Co., 146 Ga. 406, 410, 91 S.
E. 471.
Owners have an interest in being properly designated in
executions which issue for the collection of taxes upon
their property, or, if they can not be designated with rea-
sonable certainty, that the property shall be pointed out in
the executions as authority for seizing it irrespective of
ownership, or as the property of some particular person.
In all cases of doubt, the execution should specify the par-
ticular realty on which the tax accrued, and direct the of-
ficer to seize it or so much of it as is necessary to pay its
own taxes. Burns v. Lewis, 86 Ga. 591, 602, 13 S. E. 123;
Miller v. Brooks, 120 Ga. 232, 234, 47 S. E. 646.
Where the owner of property is known, the taxes must
be charged against him, and not against the specific prop-
erty itself. Justice v. Parnin, 130 Ga. 869, 871, 61 S. E-
1044.
Liability of Vendor.— As a general rule, in the absence
of any stipulation in a contract of sale, relating to the pay-
ment of current taxes, where the sale occurs and the prop-
erty is delivered subsequently to the assessment of the
[224]
§ 1019
FRANCHISES, HOW TAXED
§ 1021
taxes, the payment of the current taxes devolves upon the
vendor. Baker v. Smith, 135 Ga. 628, 70 S. E. 239.
Lessee. — A lease of land to A. for as long as he, his heirs,
ar assigns shall pay a stipulated annual ground rent to the
lessor or his heirs or assigns, and shall comply with the
;ovenants therein stated, creates a base or determinable
tee, and the property should be taxed to the lessee as
jwner. Penick v. Atkinson, 139 Ga. 649, 77 S. E- 1055.
A lessee under a lease for 101 years, renewable forever
it his option, has a right both to possession and profits,
which may be projected indefinitely into the future, and is
chargeable with the tax thereon. Wright v. Central, etc.,
146 Ga. 406, 410, 91 S. E- 471. Reversed on other grounds
n Central, etc., R. Co. v. Wright, 248 U. S. 525, 63 L. Ed.
m, 39 S. E- 181.
Doweress. — A widow has a life interest in land assigned
;o her as dower, and is liable for the taxes thereon. Austell
7. Swann, 74 Ga. 278, 281.
Trust Property. — Whether trust property of a minor
:ould lawfully be sold under an execution against his trus-
:ee, as an individual, if aided by parol evidence that the
jxecution was intended to represent taxes on the trust
property was questioned but not decided in Bourquin v.
Sourquin, 120 Ga. 115, 119, 47 S. E- 639.
Who May Be Owner. — The owner of property must be
i natural person, a corporation, or a quasi person or en-
ity, such as a partnership. The law recognizes no other
owners of property. "The estate of A. J. Miller" is not
he name of a natural person, and does not import either a
partnership or a corporation. Miller v. Brooks, 120 Ga.
!32, 234, 47 S. E. 646.
ARTICLE 5.
Franchises, How Taxed.
§ 1019. "Special franchise" denned. — The term
'special franchise," as used in this Article, shall
include every right and privilege exercised within
this State, granted to any person, partnership, or
corporation by the State or its authority, or by
any county or county officer, or officers, or any
municipal corporation or officer thereof, for the
exercise of the power of eminent domain, or for the
use of any public highway or street, or the land
ibove or below any highway or street within the
limits of said State, and every special right exer-
cised within this State, granted by charter, resolu-
tion, by-law, statute, or otherwise, whether under
the laws of this or any other State, for the exer-
cise of any public service, such as the construction
ind operation of railroads equipped for steam,
electricity, horse-power, compressed air, or other-
wise, or the common carrying of passengers or
'reight; the construction or operation of any plant
Dr plants for the distribution and sale of gas, water,
electric lights or power, steam heat, refrigerated
dr, or other substances by means of wires, pipes,
Dr conduits made under or above any street, alley,
or highway, or the construction and operation of
my telephone or telegraph plant; all rights to con-
duct wharfage, dockage, or cranage business; the
conduct of any express business, or the operation
Df sleeping, palace, dinging or chair-cars; all
fights and. privileges to construct, maintain, or
operate canals, toll-roads or toll-bridges; the right
:o carry on the business of maintaining equip-
ment companies, navigation companies, freight or
passenger depots, and every other like special
function dependent upon the grant of public pow-
ers or privileges not allowed by law to natural per-
sons or involving the performance of any public
service, not including the mere right to be a corpo-
ration by trading or manufacturing, or other cor-
poration exercising no special franchise above
enumerated. Acts 1902, p. 37.
As to liability of corporations for school taxes or fran-
:hises, see § 1540.
Definition of Franchise. — A franchise is a grant of right
Ga. Code— 8 [225
by public authority, the main element of which is, in gen-
eral, "permission" to do something which otherwise the
grantee would not have the right to do. Western Union
Tel. Co. v. Wright, 185 Fed. 250.
Franchise from United States. — Whatever franchise or
right a telegraph company acquires from the United States
by its acceptance of the provisions of Act July 24, 1866, c.
230, 14 Stat. 221 (U. S. Comp. St. 1901, p. 3579), giving
such companies the right to use the military or post
roads of the United States, etc., is exempt from taxation
by a state. Western Union Tel. Co. v. Wright, 185 Fed.
250.
Exemption by Charter. — Where the scheme of taxation,
provided in the charter of a corporation, is to tax "stock"
(meaning capital stock) by taxing the net earnings, it nec-
essarily covers and embraces the franchise, and prevents
a subsequent taxation of the franchise, as such. Georgia
R., etc., Co. v. Wright, 132 Fed. 912, 919; Wright v. Geor-
gia R„ etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct.
242.
§ 1020. Returns to comptroller-general. — On or
before the first day of March in each and every
year, every person, partnership, or corporation
holding or owning and exercising any special fran-
chise or franchises within the State of Georgia
shall make a special return, as of date of January
1st of that year, sworn to by such person or mem-
ber of such partnership, or by the president, vice-
president, or secretary of such corporation, to the
comptroller-general, stating the value of said
franchises as exercised within this State, and par-
ticularly describing the same, accompanying said
return with a certified copy of every statute, ordi-
nance, resolution, contract, or grant under and. by
authority of which said franchises are held,
claimed, or owned; provided, nevertheless, that
where such certified copies have once been filed
with or returned to said comptroller-general, it
shall not be necessary in any subsequent annual
return to duplicate the same, but the same shall be
considered returned by reference to the copies
filed as required by this section. Acts 1911, p. 51.
As to form of returns, see § 1042.
Editor's Note. — A constitutional amendment proposed by
an Act of August 19, 1911 (Acts 1911, p. 51), ratified Oc-
tober 2, 1912, and appearing in this Code as § 6557 (1), pro-
vides that all tax returns made to the comptroller- gen-
eral shall be made on or before the first day of March of
each year, as of date of January 1st of that year.
It seems that the General Assembly has never amended
this section to conform to the constitution since such amend-
ment.
No question as to whether this amendment itself ex-
ecuting or requires legislative action in order to take
effect has been made. It seems to have been considered
self executing, and has been so treated in this Code, cor-
responding changes being made in this system. But the
language of the amendment may well be construed as
meaning that it is to take effect only when the legisla-
ture has acted thereon.
§ 1021. Value of franchises, how ascertained and
taxed. — The comptroller-general shall not be
bound to accept the valuation assigned to such
franchises in the return made, but it shall be
his right and duty to review the same, and. in case
of his refusal to accept the return, the subsequent
proceedings shall Ibe in all particulars the same as
are now provided by law in the case of his refusal
to accept the returns made by railroad companies
of their physical property, and said franchises shall
be taxed at the same rate as other property upon
the value thereof as returned, or, if the value re-
turned is not accepted, upon the value as above
ascertained, the tax to be levied and collected as
now provided in case of the property of railroad
companies.
As to arbitration where comptroller- general dissatisfied
with returns, see § 1045.
§ 1022
STATE TAX ON RAILROADS
1031
§ 1022. Exercised in more than one county or
municipality. — In the cases of all special franchises
exercised beyond the limits of one municipality or
county, as in the case of telegraph or telephone
lines, or railroads or steamboats, the return pro-
vided for in this article shall show the number of
miles over which said railroad or telegraph or tele-
phone franchise, or other special franchises, are
exercised in each county and in each municipal di-
vision within the State, in like manner as railroad
companies now make returns of their physical
property.
As to taxation of railroads by counties, see §§ 1036 et
seq. ; by municipalities, see §§ 872 et seq.
§ 1023. Valuation, how apportioned. The valua-
tion for taxation of such franchises in each county
and municipality in or through which said fran-
chise is exercised, shall be apportioned to each
county and municipality as is now provided by
law for the apportionment of the personal prop-
erty or railroad companies.
See §§ 1038, 874.
§ 1024. Comptroller-general shall certify name
of franchise and amount due. — The comptroller-
general shall certify to every such municipal cor-
poration and the taxing authorities of every such
county the name of every special franchise taxable
within such municipality or county, and the
amount of taxes due on the same to such munici-
pal corporation or county, as now provided by law
in the case of railroads.
See §§ 1039, 875.
§ 1025. How sums thus paid shall be considered.
— The sums referred to in the preceding section
shall be paid to the county, city, town, or village
entitled thereto, but such sums, when paid shall be
considered a payment on account of, or in
full as the case may be, of the tax due such
county, city, town, or village, on account of
the franchise; and if the amount so payable is
greater than the amount of the franchise tax due
such county, city, town, or village, such payment
shall be in full thereof; and if less, the difference
in amount shall be 'paid, but no greater credit
shall be allowed on account of such payment than
the amount of the franchise tax due such county,
city, town, or village for the current year.
§ 1026. Bridge rentals and street assessments. —
Any money that may be paid or expended by
such persons, partnership, association, or corpora-
tion for bridge rentals, or for paving or repairing
of pavement of any street, highway, or public
place, shall not be included within the amounts
provided in section 1030 to be deducted from the
portion of the franchise tax payable to the city,
county, town, or village.
§ 1027. Other franchises. — Nothing in this Arti-
cle shall be construed to exempt from taxation any
franchise not enumerated in this Article; but all
franchises of value not provided for in this Article
shall be returned for taxation and taxed as other
property under the present laws. Acts 1902, p. 37.
A franchise granted by the United States can not be
taxed by the State under this section. Western Union
Tel. Co. v. Wright, 185 Fed. 250.
§ 1028. Taxes, how collected. — The taxes due
to each municipality or county on such franchise
shall Ibe collected and enforced as now provided
by law in the case of other taxes due the same by
railroad companies.
See §§ 1040, 875.
§ 1029. Double tax for failure to make returns. —
Any person, firm, or corporation failing to make
return of his special franchises as hereinbefore re-
quired, shall be liable to double taxes thereon, in
like manner as is provided by law in the case of
failure to make return of other property. The
value thereof to be assessed by the comptroller-
general from the best information accessible to
him and certified in like manner as provided in sec-
tion 1050.
As to double taxation of defaulters generally, see § 1105.
§ 1030. Deductions from portions due to a
county, etc. — Whenever the tax, or any part of the
tax, assessed on, or on account of, any franchises
as defined in this Article is due and payable to or
for the use of any county, city, town, or village in
which the tangible property is located, and. it
shall appear that the person, partnership, associa-
tion, or corporation affected has paid, or is liable to
pay, to such county, city, town, or village, for its
exclusive use within the year for which taxes on
or on account of the franchises is assessed under
any agreement therefor, or under any statute, or-
dinance, resolution, or by-law requiring the same,
any sum (based upon a percentage of gross re-
ceipts, or any other income, as any occu-
pation or privilege tax or charge, or any
sum of money on account of, or as con-
sideration for, such franchise or privilege granted
to or possessed by such person, partnership,
association, or corporation, all amounts so
paid, or liable to be paid, for the exclusive use of
such county, city, town, or village, except the
money paid for the ad valorem taxes due such
county, city, town, or village, on account of the
tangible or physical property located therein, shall
be deducted from the portion of the tax due such
county, city, town, or village, on account of the
franchise owned or possessed by such person,
partnership, association, or corporation. Acts
1903, p. 18.
As to deductions for bridge rentals and street assess-
ments, see § 1026.
Constitutionality. — This section does not violate the con-
stitutional provisions that "all taxes shall be uniform,
etc." (§ 5883) and that protection to person and prop-
erty shall be impartial and complete (§ 5699). State v.
Southern Exp. Co., 133 Ga. 113, 65 S. 3. 282.
Scope of Section. — This section is not limited to cor-
porations that pay occupation taxes in consideration of
the exclusive use of a franchise, but applies generally to
such as are subject to a franchise tax, and that have paid
a municipal occupation tax for exercising the franchise.
State v. Southern Exp. Co., 133 Ga. 113, 65 S. E. 282.
ARTICLE 6.
State Tax on Railroads.
§ 1031. (§ 779.) Rolling-stock taxed. — Rail-
road companies operating railroads lying partly in
other States shall be taxed as to the rolling-stock
thereof and other personal property appurtenant
thereto, and which is not permanently located in
any of the States through which said railroads
pass, on so much of the whole value of rolling-
stock and personal property as is proportional to
the length of the railroad in this State, without
[226]
§ 1032
STATE TAX ON RAILROADS
§ 1034
regard to the location of the head office of such
railroad companies. Acts 1882-3, p. 42.
Constitutionality of the Rule of This Section.— The rule
laid down in this section held to have no necessary rela-
tion to the real value of property, in Georgia, of foreign
equipment company, and taxes thus levied thereon were
void. Union Tank Line Co. v. Wright, 249 U. S. 275, 63
L. Ed. 602, 39 S. Ct. 276. Reversing Wright v. Union
Tank Line Co., 143 Ga. 765, 85 S. E. 994; Union Tank Line
Co. v. Wright, 146 Ga. 489, 91 S. E. 680.
A state may tax the movables of a foreign corporation,
which are regularly and habitually employed therein, al-
though devoted to interstate commerce. While the valua-
tion must be just, it need not be limited to the mere
worth of the articles taken separately, but may include
as well the intangible value due to the organic relation
of the property in the state to the whole system of which
it is part. To meet the difficulties of appointment where
the tangibles constitute part of a going concern operat-
ing in many states, and where absolute accuracy is gen-
erally impossible, the court has sustained methods pro-
ducing results approximately correct, but if the plan pur-
sued is arbitrary and the consequent valuation grossly
excessive, it must be- condemned because of conflict with
the commerce clause of the Federal Constitution, or the
Fourteenth Amendment thereto, or both. Union Tank
Line Co. v. Wright, 249 U. S. 275, 63 L- Ed. 602, 39 S.
Ct. 276.
§ 1032. (§ 780.) President to make returns. — The
presidents of all the railroad companies, including
street railroads, dummy railroads, and electric rail-
roads in this State shall be required to return on
oath, annually, to the comptroller-general, the
value of the property of their respective com-
panies, without deducting their indebtedness; each
class or species of property to be separately
named and valued, so far as the same may be
practicable, to be taxed as other property of the
people of the State; and said returns shall be made
under the same regulations provided by law for
the returns of officers of other incorporated com-
panies, which are required by law to lbe made to
the comptroller-general: Provided, that the said
railroads shall be taxable for city purposes as other
property is taxed for city purposes, and any law
making railroads taxable by counties will be ap-
plicable to street-railroads of every character. Acts
1874, p. 107; 1889, p. 36.
As to return and payment for occupation tax on rail-
roads, see § 992. As to form of returns, see § 1042.
Policy of Legislation. — The object of the Act of 1874 from
which this section was codified was to make more search-
ing and sweeping provisions in respect to the taxation of
railroads by the state, and to compel more full and specific
returns; it was not the intention of that act to exempt
such property of railroad companies from taxation as was
previously subject thereto; such as town lots laid off for
sale. Savannah, etc., Railway v. Morton, 71 Ga. 24.
Statutes for Taxation of Railroads Exhaustive. — The dif-
ferent sections relating to the method of assessing and col-
lecting taxes upon the property of railroad companies for
state, county and municipal purposes are to be construed
together, and when so construed they are exhaustive as to
the method of assessing and collecting all taxes required to
be paid by railroad companies on property owned by them.
Georgia R., etc., Co. v. Wright, 125 Ga. 589, 608, 54 S. E.
52;. Greene County v. Wright, 126 Ga. 504, 507, 54 S. E.
951. See also Savannah, etc., Railway v. Morton, 71 Ga. 24.
Former Power of Counties and Municipalities. — Prior to
the amendment of 1889 (Acts 1889, p. 36) this section gave
no authority to local or municipal bodies to tax the prop-
erty of such companies. Savannah v. Atlantic, etc., R.
Co., 21 Fed. Cas. (case no. 12,385) 548; Albany v. Savan-
nah, etc., Railway, 71 Ga. 158; Houston v. Central Rail-
road, 72 Ga. 211.
Contents of Return. — "All property of every nature what-
soever is to be embraced in the return to the comptroller-
general." Georgia R., etc., Co. v. Wright, 125 Ga. 589, 608,
54 S. E. 52.
The return should specify the several sorts of property,
so that the kind appurtenant and necessary to the com-
pany for railroad purposes should bear only the rate of
taxation fixed by the charter, and other property, not so
[25
appurtenant and necessary, should be taxed as that of all
other persons; the entire state tax being levied by the
comptroller-general. Savannah, etc., Railway v. Morton,
71 Ga. 24.
Property Not Used for Railroad Purposes. — "If a railroad
company owns real property or personal property within
the limits of a county or municipality, which is not used
for railroad purposes, it is still subject to the same tax as
like property owned by individuals. The tax goes to the
county or municipality." Georgia R., etc., Co. v. Wright,
125 Ga. 589, 609, 54 S. E. 52.
Property used by the company for railroad purposes
should be returned to the comptroller-general, as well as
that which is not so used, and the entire state taxes upon
every character of property owned by the company should
be levied by the comptroller-general. Georgia R., etc., Co.
v. Wright, 125 Ga. 589, 607, 54 S. E. 52.
Effect on Charter Exemption. — This section does not abol-
ish the provision, or impair the contract obligation, con-
tained in the charter of a railroad company granted prior
to its enactment, whereby the railroad was totally or par-
tially exempted from taxation. State v. Georgia R., etc.,
Co., 54 Ga. 423; Georgia R., etc., Co. v. Wright, 132 Fed.
912, 919; Wright v. Georgia R., etc., Co., 216 U. S. 420,
54 L. Ed. 544, 30 S. Ct. 242.
§ 1033. (§ 781.) The presidents shall pay the
taxes assessed. — Said presidents shall pay to the
comptroller-general the taxes assessed upon the
property of said railroad companies; and on fail-
ure to make the returns required, by the preceding
section, or on failure to pay the taxes so assessed,
the comptroller-general shall proceed to enforce
the collection of the same in the manner provided
by law for the enforcement of taxes against other
incorporated companies. Acts 1874, p. 107.
As to defaulting corporations generally, see §§ 1132 et
seq. As to procedvire on failure to make returns, see §§
1055 et seq.
§ 1034. (§ 782.) Tax, how resisted.— If any rail-
road company affected by the preceding sections
desires to resist the collection of the tax therein
provided for, said company through its proper
officer may, after making the return required in
section 1032, and after paying the tax levied on
such corporation by the tax Act and continuing to
pay the same while the question of its liability
herein is undertermined, resist the collection of
the tax above provided for, by filing an affidavit
of illegality to the execution or other process is-
sued by the comptroller-general, stating fully and
distinctly the grounds of resistance, which shall
be returnable to the superior court of Fulton
county, to be there determined as other illegalities;
the same to have precedence of all cases in said
court as to time of hearing, and with the same
right of motions for new trial and writs of error
as in other cases of illegality, in which case the
comptroller-general shall be represented by the
attorney-general of the State, or such other at-
torney as the Governor may select; if the grounds
of such illegality be not sustained, the comptroller-
general shall, after crediting the process aforesaid
with amount paid, proceed to collect the residue
due under the provisions aforesaid, and if, at any
time during the pendency of any litigation herein
provided for, the said corporation shall fail to pay
the tax required to be paid as a condition of hear-
ing, then said illegality must be dismissed, and no
second affidavit of illegality shall be allowed. Said
illegality may be amended as other affidavits of
illegality, and shall always be accompanied by
good bond and security for the payment of the tax
fi. fa. issued Iby the comptroller-general. Acts
1874, p. 107.
As to disputing county taxes, § 1041.
Tax Payer Must Comply with Section. — A tax payer who
7]
§ 1035
COUNTY TAXATION OF RAILROADS
§ 1038
avails himself of an affidavit of illegality, must abide by
the statute as to such remedy or abandon the remedy alto-
gether. It follows that where the statute makes the affi-
davit returnable to a particular court, it can not be re-
turned or transferred to any other court. Georgia Mid.,
etc., R. Co. v. State, 89 Ga. 597, 598, 15 S. E- 301.
Power of Court.— This section gives the court full power
to determine all questions arising on affidavits of illegality,
filed hereunder. State v. Southwestern Railroad, 66 Ga.
403, 405.
Remedy Not Available Unless Return Made.— -To be. en-
titled to the remedy provided for in this section a railroad
must make the required return before the issuing of exe-
cution against it. Macon, etc., R. Co. v. Goldsmith, 62
Ga. 463. See also the cases immediately following this case
on pages 468, 485, 495, 510.
§ 1035. (§ 783.) Railroad companies, how dealt
with for not paying tax. — In the event of refusal
by any railroad company to pay the tax on ac-
count of exemption in the charter of such com-
pany, it shall be the duty of the attorney-general,
when directed by the Governor, to institute pro-
ceedings to ascertain whether or not the charter
of such company is liable to forfeiture by reason
of any violation of its provisions, and the result
of such proceedings shall be reported to the Gen-
eral Assembly. Acts 1877, p. 125.
ARTICLE 7.
County Taxation of Railroads.
§ 1036. (§ 784.) Railroads to report to comp-
troller annually. — On or before the first day of
March, each railroad company in this State shall
make an annual return as of date of January 1st
of that year, to the comptroller-general, for the
purposes of county taxation in each of the coun-
ties through which said road runs, in the follow-
ing manner: Said return shall be under the oath of
the president or other chief executive officer, and
shall show the following facts as they existed on
the first day of January preceding, to wit: first, the
aggregate value of the whole property of said
railroad company; second, the value of the real
■estate and track-bed of said company; third, the
value of the rolling-stock and all other personal
property of said company; fourth, the value of the
company's property in each county through which
it runs. Acts 1889, p. 29; Act of 1911, p. 51.
Cross References. — As to taxation of railroads by cities,
see §§ 872 et seq. As to form of returns, see §§ 1042, 1050.
As to inspection, see § 1054.
Editor's Note. — A constitutional amendment was proposed,
by an Act of August 19, 1911 (Acts 1911, p. 51), and ratified,
requiring returns to the comptroller to be made on March
first, as of date of January first. The amendment appears
in this Code as § 6557 (1). The amendment affects this
section, but the latter has never been amended in conform-
ity therewith. No question has been raised as to whether
the amendment is self-executing or requires legislative ac-
tion. It is treated as self-executing in this Code and
changes in conformity therewith have been made in this
section. This result seems more desirable for reasons of
convenience and policy. But from the language of the
amendment it is not entirely clear that such a result was
intended.
Constitutionality. — The act from which this and the five
following sections are codified is not unconstitutional as vio-
lating § 6553. Columbus Southern R. Co. v. Wright, 89
Ga. 574, 15 S. E. 293.
Applicable to Railroads Running from One County to An-
other.— The terms of this section, and the sections immedi-
ately following it, show that it was evidently intended that
they should apply to those railroads running from one
county to another, and not to those doing business in and
near a single city. Savannah, etc., Railway v. Williams,
117 Ga. 414, 419, 43 S. E. 413.
Property Included. — Under this section the return clearly
embraces all the property of these companies, both real
[ 228 ]
and personal. It embraces tangible personal property and
intangible personal property. It embraces realty and per-
sonalty used in the conduct of their usual and ordinary
business, and also realty and personalty not so used. Greene
County v. Wright, 126 Ga. 504, 507, 54 S. E- 951; Geor-
gia R., etc., Co. v. Wright, 125 Ga. 589, 54 S. E- 52.
§ 1037. (§ 785.) Taxed by each county through
which it passes. — Whenever the. amount of the
tax levy of any county through which the said rail-
road runs is assessed by the authority of such
county, it shall be the duty of the ordinary thereof
to certify the same and transmit such certificate to
the comptroller-general; and the property of such
railroad company shall be subject to taxation in
each county through which the road passes, to the
same extent and in the same manner that all other
property is taxed, in the manner hereafter set out.
Acts 1889, p. 29.
See note to preceding section.
§ 1038. (§ 786.) Property assessed. — Whenever
such certificates is received Iby the comptroller-
general, he shall proceed to assess the amount of
each and every railroad company's property, in
each and every of said counties, in the following
manner: First, it shall be assessed upon the prop-
erty located in each county, upon the basis of the
value given by the returns. Second, the amount of
tax to be assessed upon the rolling-stock and
other personal property is as follows: As the value
of the property located in the particular county is
to the value of the whole property, real and per-
sonal, of the said company, such shall be the
amount of rolling-stock and other personal prop-
erty to be distributed for taxing purposes to each
county. The value of the property located in the
county and the share of the rolling-stock and per-
sonal property thus ascertained, and. apportioned
to each of such counties, shall be the amount to
be taxed to the extent of the assessment in each
county. Acts 1889, p. 29.
See note to § 1036.
Constitutionality. — The provision in this section, dis-
tributing for taxation purposes the rolling stock and other
unlocated personal property of a railway company, to and
for the benefit of the counties traversed by the railroad,
does not violate the provision in the Fourteenth Amend-
ment to the constitution, that no state deny to any per-
son within its jurisdiction the equal protection of its
laws. Columbus Southern R. Co. v. Wright, 151 U. S.
470, 38 E. Ed. 238, 14 S. Ct. 396. Distinguished in Gulf,
etc., R. Co. v. Ellis, 165 U. S. 150, 155, 41 L. Ed. 666, 17
S. Ct. 255.
Located and Unlocated Property. — This section seems to
contemplate that a railroad has two kinds of personalty;
"located," having a fixed and actual situs or abiding
place for the time being; and "unlocated," being movable
like rolling-stock and frequently shifting its place. Of
course the realty is absolutely fixed and immovable, and
always remains so. The scheme of this section is to tax
the located property of the railroad, real and personal, in
each county where it is situated, at the county rate of
taxation of force in that county, and to apportion the
transitory, frequently moving personalty, in fair propor-
tion among the several counties. This class of property
may be fairly said to be situated at one place as well as
another, or to "reside," if that word is allowable, along
the entire length of the road. Having no fixed situs, it
is absolutely right to apportion it, and that is really all
that could be appropriately done with it for taxing pur-
poses. Columbus Southern R. Co. v. Wright, 89 Ga. 574,
15 S. E. 293; S. C, 151 U. S. 470, 476, 38 L. Ed. 238, 14
S. Ct. 396; Greene County v. Wright, 126 Ga. 504, 508,
54 S. E. 951.
The court interprets clause "Second" above as having
the meaning it would have if it had been written and en-
acted as follows: Second, the amount of tax to be as-
sessed upon the rolling-stock and other unlocated per-
sonal property is as follows: As the value of the prop-
erty located in the particular county is to the value of the
§ 1039
ESTATE AND INHERITANCE TAXES
§ 1041(1)
whole located property, real and personal, of said com-
pany, such shall be the amount of rolling-stock and other
unlocated personal property to be distributed for taxing
purposes to each county. Columbus Southern R. Co. v.
Wright, 89 Ga. 574, IS S. E. 293; Greene County v. Wright,
126 Ga. 504, 508, 54 S. E. 951.
Under this scheme, located property is to be taxed in
the county or municipality where located, without refer-
ence to whether it is used for railroad purposes or whether
it be real property or personal property, and the unlo-
cated property is to be distributed to the different coun-
ties or municipalities. Georgia R., etc., Co. v. Wright,
125 Ga. 589, 608, 54 S. E. 52.
Stock in a non-resident railroad corporation owned by
a domestic railroad company is taxable for county and
municipal purposes in that county and city wherein the
principal office of such corporation is fixed by its charter
or by-law. Such property is "located" property in the
meaning of this section. Greene County v. Wright, 126
Ga. 504, 54 S. E. 951.
Assessment Must Be Based on Returns. — The comptroller-
general must make his assessment "upon the basis of the
value given by the returns," and if the valuation of the
property given in a return is rejected and, by means of the
legal machinery provided, such property is assessed at a
higher valuation than that shown by the return, the effect
will be to correspondingly increase the proportionate valu-
ation of the property in the different counties and munici-
palities through which the road runs. But the proportion
which the value of the property situated in those counties
and municipalities bears to the value of the entire property
is, under this section, determined by the return, and can
not be altered by the comptroller-general. Atlanta v.
Wright, 119 Ga. 207, 45 S. E- 994.
§ 1039. (§ 787.) Taxes due county paid tax-col-
lector. — Whenever the comptroller-general shall
ascertain and levy in the manner specified the
amount of tax due by such company to each of
such counties, it shall be his duty at once to notify
the president and treasurer of such railroad com-
pany of the amount due in each of said counties
for county taxes of said railroads, and each and
every road is required, within sixty days from the
receipt of such notice, to pay to the tax-collector of
each county through which the railroad runs the
amount mentioned by the comptroller-general
as the tax due to such county. Acts 1889, p. 29.
See note to § 1036.
§ 1040. (§ 788.) Manner of issuing fi. fas. — If any
railroad company shall refuse to pay the amount
thus ascertained, and due by it to the tax-collector
of any county to which the same is due and pay-
able, it shall be the duty of the comptroller-gen-
eral to issue a fi. fa. in the name of the State of
Georgia against such railroad company for the
same, to be issued, levied, and returned in the
same manner as tax fi. fas. are issued for State
taxes due in the State by said companies. Acts
1889, p. 29.
See note to § 1036.
Common Law Action Will Not Lie. — This section provides
an adequate remedy for the collection of taxes imposed
upon railroad companies for county purposes, and a com-
mon-law action for the recovery of the tax as a debt will
not lie. State v. Western, etc., R. Co., 136 Ga. 619, 71 S.
E. 1055.
§ 1041. (§ 789.) Affidavit of illegality. — If any
railroad company shall dispute the liability to such
county tax, it may be done by an affidavit of il-
legality, to be made by the president and said
railroad in the same manner as other affidavits of
illegality are made, and shall be returned for trial
to the superior court of the county where such tax
is claimed to be owing and where it is sought to
be collected, where such cases shall be given prec-
edence for trial over all other cases, except tax
[ 22
cases in which the State shall be a party. Acts
1889, p. 29; 1916, p. 34.
Cross References. — As to affidavit of illegality in case of
State tax, see § 1034. As to affidavit of illegality in gen-
eral, see 10 Cum. Dig. 34; 12 Enc. Dig. 120.
Editor's Note. — Before the amendment of 1916 (Acts 1916),
p. 34), an affidavit of illegality, filed under this section,
was returned for trial to the superior court of Fulton
county, and said amendment provided that such affidavit
should thereafter be returned for trial to the superior court
of the county where such tax is claimed to be owing and
where it is sought to be collected.
School Tax.— The tax authorized under Civil Code, §
1540 [repealed, see § 1551 (144)], to be levied upon prop-
erty within the limit of school districts as laid out under
provision of §§ 1531 et seq., is a county tax within the
meaning of this section. Central, etc., R. Co. v. Wright,
148 Ga. 86, 95 S. E. 963.
Adequate Remedy at Law. — This section gives an ade-
quate remedy at law and there can not be a resort to a
court of equity. Central, etc.. R. Co. v. Wright, 148 Ga.
86, 95 S. E. 963.
ARTICLE 8.
Estate and Inheritance Taxes.
§ 1041(1) Federal Estate tax return; duplicate
to be filed with State Tax Commissioner. — It shall
be the duty of the legal representative of the es-
tate of any person who may die a resident of this
State, and whose estate is subject to the payment
of a Federal Estate tax, to file a duplicate of the
return which he is required to make, to the Fed-
eral authorities, for the purpose of having the es-
tate taxes determined with the State Tax Com-
missioner. When such duplicates are filed with
said official, he shall compute the amount that
would be due upon said return as Federal Estate
Taxes under the Act of Congress relating to the
levy and collection of Federal Estate Taxes upon
the property of said estate taxable in Georgia, and
assess against said estate as State inheritance taxes
twenty-five per centum of the amount found to be
due for Federal Estate Taxes. Acts 1925, p. 63.
Editor's Note.— In 1923 (Act 1913, p. 91) the legislature
passed an inheritance tax act, which, with the several
amendments, remained the law in force until the Act of
1925 was passed, codified as this and the following sec-
tions.
Due to the provision adopting the Federal returns, it
is thought well to relate the condition out of which this
act has grown.
In 1924 the Federal Government provided in its estate
tax act that the estate of the decedent should be cred-
ited up to 25% of Federal tax therein imposed for any
payment of estate, inheritance, legacy, or succession taxes
actually made to any of the several states, in respect of
any property included in the gross estate. See Federal
Revenue Act of 1924, Title III, part I, § 301 (b). Since
such credit is made to the estate, the Federal Government
does not collect the 25% or less for the state, but leaves
it to the state to make such collections under its own laws.
As a result, the legislatures of the several states, includ-
ing New York, Massachusetts, and Pennsylvania, have
amended their inheritance tax statutes to take advantage
of such provisions. And this and the following sections
from the Act of 1925 were enacted also with that view.
This act adopts the return made to the Federal author-
ities, but there is no time fixed for filing such returns, ex-
cept that § 1041 (3) provides for appraisal where no re-
turns are made within 12 months. Now the Federal act
provides that such returns shall be made at such time and
in such manner as may be required by regulations made
pursuant to law, or such information as may at the time
be ascertainable and such supplemental date as may be
necessary to establish the correct tax. See § 404 of the Fed-
eral act. The Federal tax is due within twelve months after
the death of the decedent (§ 406 of the Federal act).
Section 404 of the Federal act also provides that if there
is any part of an estate that can not be returned, the rep-
resentative shall describe such property in the return and
give the names of all persons holding beneficial interests
9]
§ 1041(2)
ESTATE AND INHERITANCE TAXES
§ 1041(8)
therein, and such person shall then be required to make
returns. See also § 308 (a) of the Federal act.
The Georgia act does not provide procedure where a
false return has been made to the Federal authorities.
The Federal procedure under such circumstances is found
in § 405 of the Federal act.
The rate of the Federal tax will be found in § 301 (a)
of the Federal revenue act of 1924, Title III, Part I.
The terms "net estate" and "gross estate" are denned
by §§ 303 and 302, respectively, of the Federal act.
It should be borne in mind that in certain instances, as
provided in § 322 of the Federal act, credits are made upon
payment of Federal gift taxes toward state inheritance
taxation.
Enough conditions are set out above in this note to
show how incomplete the State Act of 1925 is within it-
self. While it repeals only conflicting laws, providing,
however, that no inheritance tax other than provided by
it shall be collected under the laws of Georgia [see §
1041 (5)], it adopts the procedure of the Act of 1913 only
for the purpose of payment of taxes assessed under the
terms of this act to the county tax collector as "hereto-
fore required under the Inheritance Tax Laws of Geor-
gia" [§ 1041 (2)]. It does not adopt Federal procedure
other than the return required to be made.
In view of this uncertainty all sections of the Act of
1913 are herein set out as §§ 1041 (6) et seq., except those
in direct conflict with the terms of the Act of 1925, to-
gether with editorial* comment on the probable applica-
bility. Some of the sections of the Act of 1913 are in con-
flict because they provide or contemplate that the returns
shall be made to the ordinary, while this act makes them
returnable to the tax commissioner.
The act of the extraordinary session of 1923, pp. 13, 14,
§ 1248 (2) of this Code, provides that it shall be the du-
ties of the deputies of the tax commissioner to check up
estates subject to inheritance taxes, and to report informa-
tion with reference to said estate to such officers as may
be charged with the administration of the inheritance tax
laws of this state.
§ 1041(2). Duties of County Ordinaries. — When
the amount of the inheritance taxes to be paid by
any estate has (been determined, as provided for in
§ 1041(1), it shall be the duty of said State offi-
cial to certify the same to the Ordinary of the
County where said estate is being administered,
who shall enter the same upon the minutes of his
Court, and notify the executor or administrator of
the amount found to be due, which shall be a
charge against the estate and not the several dis-
tributive shares. The tax assessed under the
terms of this Act shall be payable to the County
Tax Collector as heretofore required under the
Inheritance Tax Law of Georgia. Acts 1925,
p. 63.
Editor's Note. — This section expressly adopts the pro-
cedure of the Act of 1913 found in §§ 1041 (14), (15) of
this Code. See editor's note under § 1041 (1).
§ 1041(3). Appraisal where report not made. —
Any estate where a report is not made, as required
by this Act, within 12 months from the qualifica-
tion of the administrator or executor, may be ap-
praised and assessed for inheritance taxes by the
State official to whom said report should have
been made, who shall have full power and
authority to require the production of all evidence
that will enable him to determine the value of all
property of said estate subject to be taxed under
this Act. Acts 1925, p. 63.
See editor's note under § 1041 (1).
§ 1041(4). Failure to pay; executions. — When-
ever the legal representative of any estate taxable
under this Act fails to pay the amount assessed
against said estate, within six months after notice
from proper authority as to the amount, to be paid,
it shall be the duty of the Tax Collector of the
County of the administration to issue execution
for the amount of such tax, against said estate,
which execution shall be enforced tby levy and
sale. Acts 1925, p. 63.
See editor's note under § 1041 (1).
§ 1041(5). No other inheritance tax to be as-
sessed.— There shall be no other inheritance tax
assessed or collected out of estates, under the
laws of this State. Acts 1925, p. 63.
See editor's note under § 1041 (1).
§ 1041(6). Effect of partial invalidity.— If any
section of this Act or any part of any section of
this Act be hereafter declared invalid, the re-
mainder of said Act shall stand. Acts 1913, pp.
91, 92.
Editor's Note. — This section if applicable at all, is only
applicable to the sections taken from the Act of 1913. See
editor's note under § 1041 (1).
Constitutionality. — The inheritance-tax act of 1913 is not
unconstitutional and invalid. Farkas v. Smith, 147 Ga.
503, 94 S. F. 1016.
§ 1041(7). Tax a lien upon property. — The
taxes imposed by this Act shall be and remain a
lien upon the property subject to said tax from
the death of the decedent, and all taxes imposed
by this Act unless otherwise herein provided for,
shall be due and payable at the death of the de-
cedent. Acts 1913, pp. 91, 92.
Editor's Note. — Inasmuch as it is provided by § 1043 (3)
for collection by execution and levy where the tax pro-
vided for by §§ 1041 (1) et seq. is not paid, it is but rea-
sonable to suppose that such taxes are a lien against the
estate until the tax is paid whether this section is re-
pealed or not. See the editor's note under § 1041 (1).
§ 1041(8). Tax, how levied on estates less than
fee. — If the property passing as aforesaid shall
be divided into two or more estates, as an estate
for years or for life and a remainder, then said
tax shall be levied on every estate and interest
separately, according to the value of the same at
the death of the decedent, and the value of the
remainder in said property so limited shall be as-
certained by deducting the value of the life es-
tate, term of years or period of limitation from
the fair market value of the property so limited
and the tax on the several estate or estates, re-
mainder or remainders or interest shall be im-
mediately due and payable to the Tax Collector
of the proper county and said tax shall accrue as
provided in Section 1041(3); the value of estates
for years, estates for life, remainders and annui-
ties shall be fixed and determined upon mortal-
ity tables using the interest rate or income rate
of six per cent. Acts 1913, pp. 91, 93.
Editor's Note. — This and some of the following sections
pertain to the distribution of the burdens of the estate
tax. The tax required under §§ 1141 (l)-(5) is not an in-
heritance tax but an estate tax, the distinction being that
an estate tax is not levied on the interest to which some
person succeeds on death as is an inheritance tax, but on
the interest which ceased by reason of the death. See
Knowlton v. Moore, 178 U. S. 41, 49, 20 S. Ct. 747. This
being true, it is to be presumed that the Act of 1925, §§
1041 (l)-(5) of this Code, being an express estate tax,
levies the tax against the estate irrespective of the in-
terests of the distributees.
It is questionable whether or not this section or any
of the other sections from the Act of 1913, providing for
the distribution of such burden, are applicable.
The Act of 1913 was an • inheritance tax (Farkas v.
Smith, 147 Ga. 503, 94 S. F. 1016) and these provisions
were designed to equitably distribute such burdens under
that act. There is no authority for making them appli-
cable to the Act of 1925 unless it is given by the .last sen-
tence of § 1041 (3), providing that the taxes raised under
the Act of 1925 be payable to county tax collectors as
heretofore required under the Inheritance Tax I,aws of
Georgia. But these sections of the Act of 1913 are not
[230]
§ 1041(9)
ESTATE AND INHERITANCE TAXES
§ 1041(15)
expressly repealed by the Act of 1925. See editor's note
under § 1041 (1).
Single Devise to Trustee.— Where the property covered
by the devise passed to the trustee in solido, the fact
that some of the cestuis que trustent are entitled to ben-
efits in praesenti, while the enjoyment of the interest of
others is postponed to some indefinite time in futuro, does
not bring the trust itself within the provision of this sec-
tion, so as to require a separate assessment of the sev-
eral interests, or an apportionment of taxes among them
as. provided in cases of separate estates. Farkas v. Smith,
147 Ga. 503, 94 S. F- 1016.
Remainder.— For the purpose of taxation under the act,
the remainder estate should be estimated, in ascertaining
its present value, as if the entire corpus were to remain
undisposed of. Martin v. Pollock, 144 Ga. 605, 87 S. F-
793. See § 1041 (4).
§ 1041(9). Tax deducted by representative of
estate, or estate withheld until payment. — If such
property subject to the taxation imposed by this
Act be in the form of money, the executor, ad-
ministrator or trustee shall deduct the amount of
the tax therefrom before paying it to the party
entitled thereto; if it be not in the form of money
he shall withhold the property until the payment
by such party of the amount of the tax in any
case the person to whom the property is trans-
ferred, the executors, administrators or trustees
shall be personally liable for the amount of the
taxes and shall have the right in case of neglect
or refusal, after due notice, of the party entitled
to the property, to pay such amount, to sell said
property, real or personal or so much thereof as
may be necessary, in the same manner as he
might by law be entitled to do for the payment
of the debts of the testator or intestate. Out of
the sum realized on such sale the executor, ad-
ministrator or trustee shall deduct the amount of
the tax and the expense of the sale, and shall
pay the balance to the party entitled thereto.
Acts 1913, pp. 91, 93.
See editor's note under the preceding section.
§ 1041(10). Legacy out of real estate, how tax
collected. — Whenever any legacy subject to said
tax shall be charged upon or payable out of real
estate, the heir or devisee, before paying the
legacy, shall deduct the amount of the tax there-
from and pay the amount so deducted to the ex-
ecutor, administrator or trustee. The amount of
the tax shall remain a charge on such real estate
until paid and the payment thereof shall be en-
forced by the executor or trustee in the same
manner as the payment of the legacy itself could
be enforced. Acts 1913, pp. 91, 94.
See editor's note under § 1041 (9).
§ 1041(11). Limited estates, how taxed. — When
property subject to this tax is transferred or lim-
ited in trust or otherwise, and the rights, interest
or estates of the transferrees or beneficiaries are
dependent upon contingencies or conditions
wherelyy- each may be wholly or in part created,
defeated, extended or abridged, the tax so im-
posed on such property shall be due and payable
forthwith by the executor or trustee out of the
property transferred. Where an estate for life
or for years can be divested by the Act or omis-
sion of the legatee or devisee, it shall be taxed as
if there were no possibility of such divesting.
Acts 1913, pp. 91, 95.
See editor's note under § 1041 (1).
Time of Levy and Person Liable Definite. — This section
is not uncertain or indefinite either as to the person against
whom the tax is to be levied or as to the time when it is
to be paid. Farkas v. Smith, 147 Ga. 503, 94 S. F. 1016.
[2
Transfer to Trustee Taxable. — Where a devise is made
to a trustee who is nominated also as executor of the
will, the process of devolution accomplished in the course
of administration by the executor in transferring to him-
self as trustee the legal title to the property devised is the
transfer which, under the inheritance-tax law of this state,
is the subject of levy of a tax; and this is true though in
the devise creating the trust there are provisions which
postpone to an uncertain and indefinite time the enjoy-
ment by some possible beneficiary of an estate in the prop-
erty covered by the trust, to which he may become ulti-
mately entitled upon its final execution. Farkas v. Smith,
147 Ga. 503, 94 S. F. 1016.
§ 1041(12). Procedure upon failure to probate
will, etc. — If upon the death of any person leav-
ing an estate subject to a tax under the provi-
sions of this Act, a will disposing of such estate
shall not be offered for probate or an application
for administration is not made within three
months from the time of such decease, the State
Tax Commissioner or the Tax Collector of the
County in which the Court of Ordinary is lo-
cated, having jurisdiction of the administration
of such estate, may, at any time thereafter, make
application to the proper Court of Ordinary,
setting forth such fact and praying that an ad-
ministrator may be appointed and thereupon
such Court of Ordinary after citation and due
advertisement thereof, if no person entitled by
law to said administration shall apply therefor,
shall appoint the public administrator of the
county, or if there be none such, then the clerk
of the Superior Court to administer upon such
estate. Acts 1913, pp. 91, 94; 1919, pp. 58, 60.
Editor's Note. — There is nothing in the Act of 1925 which
directly repeals or supersedes this section. It may be ap-
plicable in that it is a step necessary to the collection of
the tax in the manner provided. The Act of 1925 certainly
contemplates a legal representative. As to whether or not
it is applicable, quaere.
See editor's note under § 1041 (1).
§ 1041(13). Taxes paid to Tax Collector.— All
taxes received under this Act by any executor,
administrator or trustee, shall be paid by him
within thirty days thereafter to the Tax Col-
lector of the county whose Court of Ordinary
has jurisdiction of the estate of the decedent.
Upon such payment the Tax Collector shall
make duplicate receipts thereof, and he shall de-
liver one to the party making payment, the
other he shall send to the Comptroller-General
of the State, who shall charge the Tax Collector
with the amount thereof, and shall countersign
such receipt and transmit same to the party
making payment. Acts 1913, pp. 91, 97.
Editor's Note. — This and the following section are ex-
pressly applicable to the new law under the terms of §
1041 (2). See editor's note under § 1041 (1).
§ 1041(14). Report of Tax Collectors; fees.—
The Tax Collector of each county shall, on or
before the 15th day of each month, pay to the
Comptroller-General all taxes received by him
under this Act before the first day of that
month, deducting therefrom his fees which shall
be the same as his fees on digest taxes and these
fees shall be equally divided between the Tax
Collector and Ordinary of the county. Acts
1913, pp. 91, 97; 1919, pp. 58, 63.
See editor's note under § 1041 (1).
§ 1041(15). No final account allowed repre-
sentative of estate until tax paid. — No final ac-
count of an executor, administrator, or trustee,
shall be allowed by the Court of Ordinary unless
such account shows, and the Ordinary so finds,
1]
§ 1041(16)
TAXES, HOW RETURNED AND COLLECTED
§ 1048
that all taxes imposed under this Act on any
property or interest passing through his hands,
as such, have been paid. The receipts of the Tax
Collector for such taxes shall be the proper
voucher for such payment. Acts 1913, pp. 91, 97.
Editor's Note. — See the editor's note under § 1041 (1).
This section is not repealed by the Act of 1925, §§
1041 (l)-(5). As to whether or not it is applicable to-
day, quaere.
§ 1041(16). Printed forms.— The State Tax
Commissioner is hereby authorized to prescribe
necessary official forms to be used in assessing
inheritance taxes, and to have said forms printed
and distributed to the Ordinaries of the several
counties of the State for use in assessing and
collecting inheritance taxes.
Editor's Note. — As to whether or not the tax commis-
sioner would be authorized under this section to issue
forms for the Act of 1925, §§ 1041 (l)-(5), quaere.
CHAPTER 2.
Taxes, How Returned and Collected.
ARTICLE 1.
Returns to Comptroller-General.
SECTION 1.
Returns and Payment, How Made.
§ 1042. (§ 804u) Returns to comptroller, how
made. — The returns of all companies, or persons,
required to be made to the comptroller-general,
must be in writing and sworn to by the presid-
ing officer or agent of a foreign company to be
a just, true, and full return of the capital stock,
net annual profits, or other property or effects,
for which said company is subject to taxation by
the laws of this State.
§ 1043. (§ 805.) Returns and taxes, etc. — The
returns of all railroad and insurance and express
companies, and agents of foreign companies, au-
thorized in this State, shall be made to the comp-
troller-general by the first day of March in each
year as of date of January 1st of that year, and
the taxes thereof paid to the State treasurer on
or before the first of September, and not later
than December twentieth, of each year. Acts
1911, p. 51.
Cross References.— See § 6557 (1).
As to railroads, see §§ 1020, 1036. As to returns and
payment generally, see 10 Cum. Dig. 781, 810; 12 Enc.
Dig. 112.
Editor's Note. — A constitutional amendment proposed by
an Act of August 19, 1911,' (Acts 1911, p. 51), ratified Oc-
tober 2, 1912, and appearing in this Code as § 6557 (1),
provides that all tax returns made to the comptroller-
general shall be made on or before the first day of March
of each year, as of date of January 1st of that year, and
that the taxes arising thereon in favor of the State shall
be paid on or before the first day of September of the
same year.
It seems that the General Assembly has never amended
this section to conform to the Constitution since such
amendment.
The question has not been raised as to whether the
amendment is self- executing or requires legislative ac-
tion. It is treated as self-executing in this Code, and this
section has been changed in conformity therewith. It may
well be doubted whether this result was intended by the
legislature in view of the language of the amendment.
The amendment is made necessary by the holding in
Atlanta, etc., R. Co. v. Wright, 87 Ga. 487, 13 S. E. 578,
that a railroad could not be required to pay taxes on an
earlier date than other tax payers.
§ 1044. (§ 806.) Payments, how made.— Such
payments must be made in the funds in which
taxes may be paid at the State treasury, free of
any expense to the State.
See § 1013
As to payment generally, see 10 Enc. Dig. 810; 12 Enc.
Dig. 112.
SECTION 2.
Arbitration of Differences.
§ 1045. (§ 807.) Differences arbitrated, how.
— Whenever the comptroller-general shall be
dissatisfied with a return for taxation required
by law to be made to him by any corporation,
company, person, or institution, and shall make
an assessment which is not satisfactory to the
officer or person making such return, and two
arbitrators are chosen, one by the comptroller-
general and the other by said officer or person,
if said arbitrators fail to select an umpire within
thirty da3rs after receiving notice of their ap-
pointment, the Governor shall appoint two arbi-
trators, who, with the arbitrator selected by said
officer or person representing the corporation,
company, or institution, shall determine the
question of amount or value, as the case may be,
and their award shall be final. Acts 1878-9, p.
166.
As to arbitration on return of franchises, see § 1021.
Editor's Note. — This section is the proper procedure for
contest of returns under § 1116 (3). See the editor's note
under § 1116 (1).
§ 1046. (§ 808.) Arbitration to assess tax
against railroad, express, sleeping-car, and tele-
graph companies. — In all cases of disagreement
between the comptroller-general and any rail-
road or express company, sleeping-car com-
panies and telegraph, companies owning prop-
erty in this State, as to • the taxable value
of their said property, where said differences
are referred to arbitration, the comptroller-
general shall appoint any one of the rail-
road commissioners to act as arbitrator for the
State, in each case, and it shall be the duty of
said railroad commissioner, when thus appointed,
to perform the duty of arbitrator without any
additional compensation. Acts 1894, p. 67.
SECTION 3.
Returns of Insurance Companies.
§ 1047. (§ 809.) Insurance companies to give
names of agents. — Insurance companies doing
business in this State, in making their returns to
comptroller-general for purposes of taxation,
shall give the name of each agent acting for
such company, and post-office address of same;
the aggregate amount of risks underwritten in
this State during the tax year; the amount of
premiums received, and the losses paid and un-
paid, by agencies. Acts 1880-1, p. 47.
§ 1048. (§ 810.) President makes return.— The
return provided for in the preceding section shall
be made by the president, or some other duly
authorized officer of the company, duly sworn
to, and shall be forwarded to the comptroller-
[ 232 ]
§ 1049
RETURNS TO COMPTROLLER
§ 1054
general on or before July first of each year, and
at the time of making such return, the amount
of tax due by said company upon premium re-
ceipts, or otherwise, shall be forwarded to the
treasurer. Acts 1880-1, p. 47.
§ 1049. (§ 811.) Returns, shall embrace what.
— Returns hereinbefore required to be made to
the comptroller-general shall be made on or be-
fore the first day of March of each year, as of
date of January 1st of that year, and companies
making the same must notify the comptroller-
general of the officer or attorney in this State
against whom legal process shall issue in case it
becomes necessary for the comptroller to issue
fi. fa. against said companies for any violation of
the laws in this State governing insurance com-
panies, or for the non-payment of taxes due by
them. Acts 1880-1, p. 47; Acts 1911, p. 51.
Editdr's Note. — The constitutional amendment proposed
by an Act of August 19, 1911 (Acts 1911, p. 51), ratified Oc-
tober 2, 1912, and appearing- in this Code as § 6557 (1), pro-
vides that all tax returns made to the comptroller -general
shall be made on or before the first day of March of each
year, as of date of January 1st of that year, and that the
taxes arising thereon in favor of the State shall be paid
on or before the first of September of the same year.
No corresponding amendment of this section has been
passed, but the constitutional amendment has been treated
as self-executing and the changes made in this section to
conform therewith.
It may be doubted whether this result was intended, in
view of the language of the amendment.
SECTION 4.
Returns to Comptroller, Assessments in Case
of Difference.
§ 1050i (§ 812.) Returns to comptroller must
be itemized. — Whenever corporations, companies,
persons, agencies, or institutions are required by
law to make returns of property, or gross re-
ceipts, or business, or income, gross, annual, net,
or any other kind, or any other return, to the
comptroller-general, for taxation, such return
shall contain an itemized statement of property,
each class or species to be separately named and
valued, or an itemized account of gross receipts,
or business, or income, as above defined, or other
matters required to be returned, and in case of
net income only, an itemized account of gross
receipts and expenditures, to show how the in-
come returned is ascertained, and such returns
shall be carefully scrutinized by the comptroller-
general, and if in his judgment the property
embraced therein is returned below its value,
he shall assess the value, within sixty days
thereafter, from any information he can obtain,
and if he shall find a return of gross receipts,
or business, or income, as above defined, or
other matters required to be returned as afore-
said, below the true amount, or false in any
particular, or in anywise contrary to law, he
shall correct the same and assess the true
amount, from the best information at his com-
mand, within sixty days. In all cases of as-
sessment, or of correction of returns, as herein
provided, the officer or person making such re-
turns shall receive notice and shall have the
privilege, within twenty days after such notice,
to refer the question of true value or amount,
as the case may be, to arbitrators — one chosen
by himself, and one chosen by the comptroller-
general — with power to choose an umpire in
case of disagreement, and the award shall be
made within thirty days from the date of ap-
pointment of an umpire, and their award shall
be final. Every arbitrator or umpire chosen or
appointed hereunder shall be a citizen of Geor-
gia. Acts 1877, p. 126; 1905, p. 68.
See 10 Cum. Dip. 796; 12 Enc. Dip. 105.
Editor's Note. — This section may be modified by §§
1116 (2), (3). See the editor's note under § 1116 (1).
Not Applicable to Incomplete Return.— This section hay
reference, not to an incomplete return, but to an insuf-
ficient valuation by the taxpayer. Georgia R. R. & B.
Co. v. Wright, 124 Ga. 596, 614, 53 S. E. 251.
Power of Comptroller to Reject. — The comptroller- gen-
eral, under this section, may reject the return made by a
railroad company of the value of its entire property for
State taxation, and correct the return or reassess the
property. Atlanta v. Wright, 119 Ga. 207, 45 S. E. 994.
Arbitrators Can Not Include Properties Not Included
by Comptroller. — On appeal to arbitration from an as-
sessment of value placed on unreturned property by the
comptroller-general, the arbitrators can not include prop-
erty in their award which was not embraced in the comp-
troller's assessment. Georgia R. & Power Co. v. Wright,
146 Ga. 29, 90 S. E. 465.
§ 1051. Oath of arbitrators. — All arbitrators
and umpires selected to fix the values of prop-
erty, where returns are made or required by
law to be made to the comptroller-general, shall
be sworn as follows; that is to say, in each
separate matter of controversy referred to a
board of arbitration in the class of cases stated,
each arbitrator and umpire shall take and sub-
scribe an oath in writing in substance as fol-
lows:
I, , selected and chosen as an arbitrator
(or umpire) in a certain matter in controversy
concerning the value of property returned by
the comptroller-general of Georgia, do swear
that I will diligently inquire as to the value of
property and impartially decide the same, and
will find and return the true market value
thereof and of every part thereof according to
the requirements of law. Acts 1907, p. 96.
§ 1052. Powers of the board of arbitrators. —
Each board of arbitrators shall have the same
power to summon witnesses and the same
power to compel the production of testimony
that belongs to the several superior courts, in-
cluding the right to issue subpoenas duces te-
cum and to order parties to the controversy to
produce books and papers, and shall have the
right and power to require the attendance of
witnesses in and from any county as the supe-
rior courts may require witnesses in criminal
cases. In all cases where the production of
books and papers shall be required, either by
subpoena duces tecum or notice as may be ap-
propriate, the same shall be produced within
five days unless the board shall enlarge the time
for cause shown.
As to powers of courts, see § 4644.
§ 1053. Power to punish for disobedience. —
In all cases provided for in the preceding sec-
tion the arbitrator or arbitrators and umpire
shall have the same power to punish for dis-
obedience to its processes and orders as is now
held by the several superior courts.
As to power of courts, see §§ 4643, 4644.
§ 1054. Taxes of railroads for county, mu-
nicipal, and school purposes. — The returns of
railroad companies for purposes of county and
[ 233
§ 1055
PROCEEDINGS IN CASE OF NO RETURN
§ 1059
municipal and school taxation shall be subject
to the same inspection, objection, and assess-
ment by the comptroller-general, and arbitra-
tion, as is provided by law for returns of such
property for purposes of State taxation. Acts
1908, p. 24.
As to returns for municipal taxation, see § 873 ; for
county taxation, see § 1036.
SECTION 5.
Proceedings in Case of No Returns; Collections
by Comptroller.
§ 1055. Returns for former years, how made.
— When the owner of property has omitted to
return the same for taxation at the time and for
the years the return should have been made,
such owner is required to do so for each year
he is a delinquent, said return to be made under
the same laws, rules, and regulations as existed
during the year in default. Acts 1908, p. 25.
Editor's Note. — It is very probable that §§ 1055-1061 have
been superseded by §§ 1116 (1) et seq. See the editor's
note under § 1116 (1) for discussion.
However they are maintained because the state offi-
cials seem to consider them of force and the comptroller-
general set them out in the instructions to tax-receivers.
Limit of Back Taxes. — This section is applicable to back
taxes without regard to the time of their accrual, if
within the statute of limitations. State v. Western &
A. R. Co., 136 Ga. 619, 627, 71 S. E. 1055.
The comptroller-general may reject the returns, made
by a railroad company of the value of its entire prop-
erty for state taxation, and reassess the property. At-
lanta v. Wright, 119 Ga. 207, 45 S. E. 994.
Partial Failure to Make Return. — If the owner of prop-
erty fails to make a return, in whole or in part, that is,
if he omits to embrace in his return all of his property
or all of a given class, he is a defaulter as well as when
he makes no return whatever. Georgia R. R. & B. Co.
v. Wright, 124 Ga. 596, 617, 53 S. E. 251; Douglas v. Mc-
Curdy, 154 Ga. 814, 818, 115 S. E. 658.
§ 1056. Comptroller-general to notify delin-
quents.— When the owner of said property re-
fuses or fails to make the return in case of prop-
erty which should have been returned to the
comptroller-general, the comptroller-general shall
notify in writing such owner of his delinquency,
demanding that a return be made thereof within
twenty days.
See note to § 1058. See editor's note under § 1116 (1).
Notice Prerequisite of Assessment or Arbitration. — The
notice provided for by this section must be given before
a valid assessment can be made by the comptroller-gen-
eral or a legal arbitration had. Georgia Ry. & Co. v.
Wright, 146 Ga. 29, 35, 90 S. E. 465.
§ 1057. When tax-receiver shall notify delin-
quents.— When the omitted property is of that
class which should have been returned to the
tax-receiver of the county, the said tax-receiver
shall notify in writing such delinquent, requiring
that he shall make a return thereof within
twenty days. Acts 1908, p. 24.
See editor's note under § 1116 (1).
Notice by Attorney. — The notice required by this sec-
tion to be given by the tax-receiver to the taxpayer may
be given by attorneys for such officer. Douglas v. Mc-
Curdy, 154 Ga. 814, 815, 115 S. E. 658.
No Time Limit. — This section does not limit the time
in which the receiver is to call upon the delinquent to
make a return of his taxes. Richmond County v. Steed,
150 Ga. 229, 235, 103 S. E. 253.
Discretion of Receiver. — The duties imposed upon the
receiver by this section involve some degree of discre-
tion and judgment on the part of the official. Richmond
County v. Steed, 150 Ga. 229, 235, 103 S. E. 253.
Mandamus to Compel Giving Notice.— A tax- receiver
may be compelled by mandamus, in a proper case, to
give the notice as provided under this section. Richmond
County v. Steed, 150 Ga. 229, 103 S. E- 253.
Notice as Evidence. — The notice given under this sec-
tion is admissible in evidence in proceedings to test the
validity of the assessment. Douglas v. McCurdy, 154 Ga.
814, 815, 115 S. E- 658.
Due Process. — Where notice to the owner is provided,
and the right given time to arbitrate the assessed valua-
tion of the property, this affords due process of law.
Shewmake Bros. v. Doming, 147 Ga. 577.
§ 10581. Assessment by comptroller-general. —
When the delinquent as provided under section
1056 refuses or fails to return his property after
the notice given, or returns it below what the
comptroller-general deems its value, it shall then
be the duty of the comptroller-general to assess
such property for taxation for State, county, and
municipal school purposes from the best infor-
mation he can obtain as to its value for each
year in default and notify such delinquent of the
valuation, which valuation shall be final unless
the taxpayer raises the question that it is ex-
cessive, in which event the further procedure
shall be the same as is now provided when the
value of returned property is arbitrated. Acts
1908, page 24.
See editor's note under § 1116 (1).
See 10 Cum. Dig. 799; 12 Enc. Dig. 104.
As to how question of correctness of assessment raised,
see §§ 1045, 1050.
Constitutionality. — Whatever informity may have been
in the original statute with reference to assessment with-
out opportunity of the tax payer to be heard, as pointed
out by the Supreme Court of the United States in Cen-
tral of Georgia Ry. v. Wright, 207 U. S. 127, 28 Sup. Ct.
47, 52' L. Ed. 134, has been relieved by the amend-
ment of 1908. The amendment relates to the remedy and
does not impair any right of the tax payer. State -v.
Western & A. R. Co., 136 Ga. 619, 71 S. E- 1055.
Same — Prior to Act of 1908. — The property owner is en-
titled to a hearing at some time before the assessment of
his property becomes finally binding, and a statute which
attempts to authorize an assessment when the law does
not afford him such a hearing will be declared unconsti-
tutional. Central of Georgia R. Co. v. Wright, 207 U. S.
127, 28 Sup. Ct. 47, 52 L. Ed. 134. Reversing Georgia R.
& B. Co. v. Wright, 124 Ga. 596, 53 S. E. 251; S. C, 125
Ga. 589, 54 S. E- 52; Central of Ga. Ry. Co. v. Wright, 124
Ga. 630, 53 S. E. 207; S. C, 125 Ga. 617, 54 S. E. 52.
Partial Return. — This section of the Code is applicable
whether there was an entire failure to make a rettirn, or
only an incomplete and partial return. Georgia R. Co. v.
Wright, 125 Ga. 589, 614, 54 S. E. 52.
The acceptance by the comptroller- general of a return
from which taxable property of the citizen has been omitted
does not bar the state of its right subsequently to pro-
ceed against the delinquent for the tax due on the omitted
property. Georgia R. R. & B. Co. v. Wright, 124 Ga. 596,
53 S. E. 251.
Duty of Citizen. — The Georgia scheme of taxation re-
quires the citizen to know what property owned by him is
subject to taxation, and contemplates that he will disclose
it fully to the taxing officer. Every opportunity in the
way of notice, protest, hearing, and arbitration is afforded
him to correct any mistake of that officer and to obtain
exact and even justice. Georgia R. R. & B. Co. v. Wright,
124 Ga. 596, 53 S. E. 251.
§ 1059. Assessment by tax-receiver. — If the
delinquent as provided under section 1057 re-
fuses to return his property after notice given
him, it shall be the duty of the tax-receiver to
assess such property for taxation from the best
information he can obtain as to its value for the
years in default and notify such delinquent of
the valuation, which shall be final, unless the
taxpayer raises the question that it is excessive,
in which event the further procedure shall be the
same as provided by law when the value of re-
turned property is arbitrated.
And said assessments when completed and en-
tered upon the tax digests shall be adopted and
[234]
§ 1060
RETURNS TO RECEIVERS OF TAX RETURNS
§ 1065
used by the county boards of education or other
school authorities authorized by law to levy
taxes for school purposes in counties or school
districts in lieu of requiring separate returns or
arbitrations for purposes of school taxation, pro-
vided that the taxpayer should he desire to con-
test the taxability of his property for school pur-
poses, may raise that question by petition in eq-
uity in the superior court of the county where
said property is assessed. Acts 1908, p. 24;
Acts 1910, p. 28.
See editor's note under § 1116 (1).
See note to § 1057.
See 12 Enc. Dig. 703.
As to assessment by receiver where return insufficient,
see § 1097.
Editor's Note. — The latter part of this section, providing
that "said assessments when completed and entered upon
the tax digests shall be adopted and used by the county
Boards of Education," etc., was added by amendment in
1910 (Acts 1910, p. 28).
Discretion of Receiver. — The duties imposed upon the re-
ceiver by this section involve some degree of discretion and
judgment on the part of the official. Richmond County
v. Steed, ISO Ga. 229, 235, 103 S. E. 253.
Mandamus to Compel Assessment. — A tax- receiver may
be compelled by mandamus, in a proper case, to assess the
property of a delinquent tax payer as provided under this
section. Richmond County v. Steed, 150 Ga. 229, 103 S. E-
253.
When Assessment Final. — The assessment made by the
tax-receiver is final unless the taxpayer raises the ques-
tion of excessiveness, then the matter is submitted to ar-
bitration. Richmond County v. Steed, 150 Ga. 223, 232,
103 S. E. 253; State v. Callaway, 150 Ga. 235, 236, 103 S.
E. 792.
§ 1060. Taxability, when determined in Ful-
ton County. — If the delinquent ■ under section
1056 disputes the taxability of such property, he
may raise that question by petition in equity in
the superior court of Fulton County.
See editor's note under § 1116 (1).
Applicable to Question of Taxability; Not Liability. —
This section is not applicable where it is conceded that the
property is taxable and the only contention is that there
is no liability for the tax, for reasons assigned. Central
of Ga. R. Co. v. Wright, 148 Ga. 86, 95 S. E. 963.
§ 1061. When in county where property is as-
sessed.— If the delinquent under section 1057 dis-
putes the taxability of such property, he may
raise that question by petition in equity in the
superior court of the county where said property
is assessed.
See editor's note under § 1116 (1).
§ 1061(1). Notice to tax defaulters. — When
the omitted property is of the class which should
have been returned to the tax receiver of a mu-
nicipality (by whatever name called) said tax
receiver shall notify in writing such delinquent,
demanding that a return be made thereof within
twenty days. Acts 1910, pp. 22, 29.
Editor's Note. — This section is new, being added by an
Act of 1910 (Acts 1910, p. 29).
Necessity for Notice and Hearing. — Under this section, a
municipality can not lawfully assess unreturned property
within its corporate limits for taxation, without provision
for giving notice to the taxpayer, together with oppor-
tunity for a hearing, before such assessment shall have been
made. Lane v. Unadilla, 154 Ga. 577, 114 S. E. 636.
The law in this respect was not changed by § 1116 (2).
Moreover, notice must be provided by law. and not awarded
as a mere matter of favor or grace. Lane v. Unadilla,
154 Ga. 577, 114 S. E- 636.
§ 1061(2). Assessments of unreturned prop-
erty, how made. — If the delinquent as provided
for in the above Section refuses to return his
property after notice given him, it shall be the
duty of the tax receiver or assessor of the city as
the case may be, to assess such property for tax-
ation from the best information he or they can
obtain as to its value for the years in default and
give written notice thereof to the tax payer,
which assessment shall be final unless the tax
payer within twenty days after receiving such no-
tice raise the question that it is excessive, in
which event the question of valuation shall be re-
ferred to arbitrators, one to be chosen by the
tax payer and one by the assessing officer of the
municipality, with power to choose an umpire in
case of disagreement, and their award shall be
final. Acts 1910, pp. 22, 29.
See note under preceding section.
§ 1061(3). Taxability of property, how deter-
mined.— If the delinquent under the two pre-
ceding sections disputes the taxability of such
property, he may raise that question by peti-
tion in equity in the Superior Court of the
county where said property is assessed. Acts
1910, pp. 22, 29.
See note under § 1061 (1).
§ 1062). (§ 814.) Collection of tax, how en-
forced.— In all cases of default in payment of
taxes upon returns or assessments, the comp-
troller-general shall enforce collections in the
manner now provided by law. Acts 1877, p. 127.
See §§ 1132, 1137.
§ 1063. (§ 815.) Usual penalties still of force.
— Nothing in sections 1060, 1061 and 1062 shall
alter or affect the penalties now provided by law
against defaulting or delinquent corporations,
companies, persons, or institutions referred to
therein, or alter or affect the mode of enforce-
ment of such penalties now provided by law.
Acts 1877, p. 127.
Cross References.— See 12 Enc. Dig. 102, 114.
As to forfeiture of railroad charters, see § 1035; as to
other corporations, see § 1133; as to penalty where no spe-
cial provision, see § 1134; as to foreign insurance and bank-
ing corporations, see § 1135; as to double taxation, see §§
1029, 1105, 1106.
ARTICLE 2.
Returns to Receiver of Tax Returns.
SECTION l.
What to be Returned.
§ 1064. (§ 816.) Returns of mining companies,
etc. — Mining companies must make their returns
in the county where the mine is worked, and
those who have plantations in counties not their
residence must make the returns for them, to-
gether with the stock and other property em-
ployed thereon, in the counties where they are
respectively situated. Acts 1855-6, p. 275.
As to return of mineral rights, see § 1008. As to exemp-
tion from double taxation, see § 1107.
Editor's Note. — The provisions of this section seems to
have first appeared as an exception to the ride that all
property should be returned for taxation where the owner
lived. See Walton County v. Morgan County, 120 Ga.
548, 554, 48 S. E. 243, for a history of the tax legislation of
this State.
§ 1065. (§ 817.) Mine or plantation on county
line. — Repealed by Acts 1917, p. 51.
[ 235 ]
§ 1066
WILD LANDS, AND NOTICE TO NON-RESIDENTS
§ 1072
§ 1066. (§ 818.) Non-residents included.— The
provisions of the two preceding sections apply
to non-residents who hold such property in this
State.
§ 1067. (§ 819.) Returns of non-residents, etc.
— Lands and other property of non-residents
must be returned and paid for in the county
where the lands or other property are respec-
tively situated. Act 1840, Cobb, 1073.
As to exemption of such lands from double taxation, see
§ 1107.
Editor's Note. — The provisions of this section seems to
have first appeared as an exception to the rule that all
property should be returned for taxation where the owner
lived. See Walton County v. Morgan County, 120 Ga.
548, 554, 48 S. E- 243, for a history of the tax legislation of
this State.
§ 1068. (§ 820.) Taxable lands, how and when
returned. — All lands in this State subject to tax-
ation, whether improved or unimproved, shall be
returned by the person or persons owning the
same, his, her, or their agent or attorney, to the
receiver of the county where the land lies. And
it shall be the duty of the receiver to require all
persons making returns of lands in his county,
to return the same by district, number, and
section, if the lands have such designation, and
when lands have no such designation, then by
such description as will enable the receivers to
identify them. Receivers are prohibited from
receiving any returns of land which do not so
designate them. And the comptroller-general
is prohibited from allowing any receiver com-
pensation or percentage for his services, who
receives returns in any other manner. Acts
1872, p. 77.
As to exemption from double taxation, see § 1107.
§ 1069. Owners of property on county lines.
— All manufacturing and other companies,
whether incorporated or not, other than rail-
road, telegraph, telephone, express, sleeping and
palace-car companies, and all persons owning
and operating manufacturing and other plants,
whose real estate or plant lies on or across a
county line or county lines, , and in two or more
counties, shall return for taxation their said
real estate, together with the buildings and
machinery thereon, and all personal property
made by or used in connection with or for the
purpose of operating said manufacturing or
other plants (except money, notes, .and accounts,
and other like property), in the county in which
are located the main buildings containing ma-
chinery, or most of said main buildings, of said
manufacturing and other plants, and shall there
pay their taxes; and the money, notes, and ac-
counts and other like property may be so re-
turned and the taxes thereon so paid, or the
money, notes, and accounts and other like prop-
erty may be returned in the county in which is
located the principal office or the residence of
said companies or persons, and the taxes on the
money, notes, and accounts and other like prop-
erty may be there paid. Acts 1903, p. 15.
See 10 Cum. Dig. 807.
As to wild lands or county lines, see § 1070.
This section is inapplicable to electric-light and power
companies, who are required to make their returns to the
comptroller-general. Jasper County v. Butts County, 142
Ga. 576, 83 S. E. 217.
SECTION 2.
Wild Lands, and Notice to Non-Residents.
§ 1070. (§ 821.) Wild lands returned how, and
subject to double tax, when. Any wild lands not
given in for taxes in the county in which they
may be shall be subject to double tax, as other
property, and it shall be the duty of the tax-
collector, when taxes are not paid in the time
provided by law, to issue executions against said
wild land, and after due advertisement, as now
prescribed by law, to sell said lands for payment
of taxes; the tax-collector, upon receipt by him
of any return of lands, shall transmit immedi-
ately his receipt for such return to the person
making the same: Provided, that the owner
of any wild lots or tracts of land through
which county lines may run shall be allowed to
return said lots or tracts of land in either county
containing any portion of said lots or tracts of
land. Acts 1880-1, p. 46; 1882-3, p. 47; 1904, p.
53.
Editor's Note. — Due to the radical changes made in the
statutes on this subject, many of the earlier cases are
no longer applicable, and are not included in this note.
They may be found by reference to the digests. See 10
Cum. Dig. 786, 832; 12 Enc. Dig. 100, 127.
Applicable Only to Unreturned Lands. — This section ap-
plies only to unreturned wild lands. Millen v. Howell, 81
Ga. 653, 8 S. E. 316.
Where wild lands have been returned for taxation in the
county within which they are situated, the tax-collector is
without jurisdiction to issue execution for taxes thereon as
unreturned wild land, and to cause such lands to be sold;
and if he does so', the execution is invalid and the pro-
ceedings thereunder are void. The purchaser at such -a
sale gets no title, and ergo can convey none. Shippen
Bros. Lumber Co. v. Flemister, 146 Ga. 348, 91 S. E. HI.
Same — Recitals. — The power of the tax-collectors of this
state to issue executions against wild and unimproved
lands, because of the non-payment of taxes due thereon by
the owner, is dependent upon a non-return of such lands
for taxes by the latter, and it is, therefore, essential to the
exercise of this power, and to the validity of the title of a
purchaser of such land, acquired at a sale made under
and by virtue of an execution so issued, that it appear
from the recitals in the execution, not only that the land
against which the same was issued was wild and unim-
proved, but that it was likewise not returned for taxes
by the owner. Leonard v. Pilkinton, 99 Ga. 738, 27 S. E.
753; Southern Pine Co. v. Kirkland, 112 Ga. 216, 37 S.
E. 362 (Greer v. Fergerson, 104 Ga. 552, 30 S. E. 943, dis-
tinguished); Bennett v. Southern Pine Co., 123 Ga. 618,
623, 51 S. E- 654; Alaculsy Lumber Co. v. Gudger, 134 Ga.
603, 68 S. E. 427.
Sale. — The sale of wild land under tax execution must be
made by the sheriff after proper levy and ninety day ad-
vertisement as provided in § 1168, but without any offer
of renting or hiring. Barnes v. Carter, 114 Ga. 886, 40
S. E. 993.
§ 1071. '(§ 822.) Owners to be notified of re-
turns received. — The receiver of tax returns
shall notify non-residents or their agents of the
receipt of their returns immediately upon the
receipt of the same by them, and the tax-col-
lectors, as soon as the digests are turned over
to them, and the rate of tax levied, shall notify
non-residents or their agents of the amount of
tax due by them. Acts 1880-1, p. 45; 1882-3,
p. 47.
§ 1072. (§ 823.) Penalty.— If any person shall
suffer injury by the failure of the tax-collectors
to do their duty as prescribed in the preceding
section, the officer so offending shall be liable
on his bond to the party so damaged for the
full damage sustained by the owner of said
land, including all costs and expenses of re-
[ 236 ]
§ 1U73
-K.C i uk.i\i:5 i\i\ u r/\ y ivi ra\ i o
9 lu/'y
deeming or recovering his land or the value of
the land not redeemed or recovered.
§ 1073. (§ 824.) Notice by mail.— Notice for-
warded by due course of mail shall be held and
deemed a sufficient compliance with the re-
quirements of this Article by the receiver and
collector.
§ 1074. (§ 825.) Expense refunded. — The re-
ceiver and collector shall be allowed and paid
their respective accounts annually incurred for
postage in carrying out the requirements of this
Article, upon a sworn account properly audited
by the officer or officers having charge of the
county finances.
SECTION 3.
Returns and Payments, When and to Whom
Made; Duty of Receiver of Returns.
§ 1075* (§ 826.) Returns, to whom made-
All other companies or persons taxed shall make
their returns of personal property to the re-
ceiver of the respective counties where the per-
sons reside, or the office of the company is lo-
cated, except that all persons, companies, or
corporations conducting any business enterprise
upon realty not taxable in the county in which
such persons reside, or the office of the com-
pany or corporation is located, shall return for
taxation their stock of merchandise, raw mate-
rial, machinery, live stock, and all other per-
sonalty employed in the operation of said busi-
ness enterprise, together with the manufactured
goods, and all other products of such enterprise,
and the notes and accounts made and the money
used in the prosecution of such business enter-
prise, on hand at the time -for the estimation of
property for taxation, including all personalty of
whatsoever kind connected with or used in said
enterprise in any manner whatsoever, in the
county in which is taxable the realty whereon
such business enterprise is located or carried
on; provided, that trie provisions of this section
shall not apply to those corporations required
by law to make their returns to the comptroller-
general. Acts 1904, p. 54.
See generally, 10 Cum. Dig. 786, 804; 12 Enc. Dig. 101,
107.
In General. — The situs of personal property for the pur-
poses of taxation, with certain exceptions, is, under this
section, at the domicile of the owner, if a resident of this
State. Wright v. Southwestern R. Co., 64 Ga. 783, 799;
Greene County v. Wright, 126 Ga. 504, 54 S. E- 951; Wright
v. Brunswick, 140 Ga. 231, 78 S. E. 839, Ann. Cas. 1914D,
287; Joiner v. Pennington, 143 Ga. 438, 85 S. E. 318; Ful-
ton County v. Wright, 146 Ga. 447, 91 S. E. 487; Blakely
v. Hilton, 150 Ga. 27, 33, 102 S. E. 340.
Classification Made by Section. — This section makes two
general classifications of personal property as respects its
situs for taxation: (a) Personalty disconnected from a
business enterprise conducted in a county other than that
of the owner's residence is taxable in the county of the
owner's residence. (b) Personalty connected with a busi-
ness enterprise, located on land in a county other than
that of the owner's residence, is taxable in the county
where such business enterprise is conducted. High Shoals
Mfg. Co. v. Penick, 127 Ga. 504, 56 S. E. 648.
A portable sawmill is not subject to taxation in a county
where it is temporarily located on the land of another, the
owner of the sawmill living in a different county and re-
turning the same for taxation as personal property to-
gether with other property in the county of his residence.
Joinder v. Pennington, 143 Ga. 438, 85 S. E. 318.
The personal property of a deceased person, in the hands
of his executors during the settlement of the estate, is tax-
able at the place of the domicile of the decedent, if a resi-
dent of the State. When it comes into possession of the
heir or legatee, it is taxable to the heir or legatee at the
place of his domicile. When it goes into the hands of a
trustee under a will or otherwise, it must be taxed to
the trustee at the place of his domicile. Blakely v. Hil-
ton, 150 Ga. 27, 102 S. E. 340; Blakely v. Sherman, 150 Ga.
749, 105 S. E. 292.
§ 1076. Tax returns, when made. — Repealed
by Acts 1913, p. 123, § 1116(6) of this Code.
§ 1077. When tax to be collected. — The comp-
troller-general * * * is empowered and re-
quired to cause the tax to be collected and to
be paid into the treasury by the 20th of April
of each succeeding year. Acts 1909, p. 73.
Editor's Note. — The first part of this section, as formerly
constituted, authorizing and empowering the comptroller
general to order the tax-receivers of the State to com
mence receiving the returns of the taxable property imme-
diately after the first day of April of each year, was re-
pealed by Act of 1913, p. 123, § 1116 (6) of this Code leav-
ing this section in its present form.
§ 1077(1). Payment of county taxes quar-
terly and semi-annually in certain counties.—
Ordinaries or County Commissioners charged
with the fiscal affairs of counties in this StaU
having therein, or that may hereafter have
therein, a city with a population of not less than
54,000 nor more than 75,000 inhabitants, arc
hereby authorized and empowered to enact and
adopt reasonable rules and regulations whereby
the tax payers of their respective counties may
be permitted to pay their county taxes quar-
terly, or semi-annually, as to said county offi-
cers may seem best.
The tax collectors of such counties shall carry
out such regulations when so adopted. 'Acts
1910, pp. 22, 30.
§ 1077(2). Tax Collector's Clerks in Counties
wherein taxes collected quarterly. — The Tax Col-
lector of those counties of this State wherein
county taxes are now or may hereafter by law
be collected quarterly, to employ a Clerk to
attend to such quarterly collections, and the
salary of such Clerk shall be paid out of the
County Treasury upon the order of such Tax
Collector; provided, however, that the amount
of the salary of such Clerk shall be approved
by the County Commissioners or other gov-
erning body of such county. The governing
bodies of all such counties are empowered to
pay amounts due for such salaries already in-
curred. Acts 1912, p. 161.
§ 1078. Taxes payable where returns are
made. — All persons, companies, and corporations,
who are by law required or directed to return
any property for taxation to the officers of the
several counties of this State, shall be required
to pay the taxes on such property to the county
in which such property is required or directed by
law to be returned. Acts 1903, p. 16.
§ 1079. Where returnable, how determined.-
If a county claims to be entitled to the return
and taxation of any property returned or about
to be returned in another county, such county
may apply to the superior court of such latter
county, in a petition to which the taxpayer and
all the counties claiming such taxes shall be
made parties, for direction and judgment as to
which county is under the law entitled to such
return and taxes, the proceedings being in all
respects the same as in other suits in equity, ex-
[ 237 ]
§ 1080
FORM OF TAX RETURNS
§ 1087
cept that such petition shall be for final trial at
the first term of the court, and shall, as in cases
of injunction, be reviewed by a fast bill of ex-
ceptions to the Supreme Court.
If a county claims to be entitled to the return
and taxation of any property returned or about
to be returned in another county by any person,
firm, partnership, association or corporation to
the Comptroller-General, the county disputing
and traversing said return may apply to the Su-
perior Court of the county in which the tax-
payer has located the property in the return to
the Comptroller-General, for relief direction and
judgment as to which county under the law is
entitled to such return and taxes; and all the
counties claiming said taxes, the tax payer and
the Comptroller-General shall be made parties in
said cause. The proceedings hereunder being in
all respects the same as in other suits in equity
except that such petition shall be for final trial at
the first term of the Court and shall as in other
cases of injunction, be reviewed by a fast bill of
exceptions to the Supreme Court of Georgia;
provided, that this section here amended shall
not be construed as affecting the law relative to
returns to be made to the Comptroller-General
by the class herein named, other than providing
a situs for determining a dispute on tax rights
as herein set forth; providing, further, that if
any officer of the county suing having charge of
the fiscal affairs of said county can make the
affidavit under Section 5337, of the Code of 1910,
the Judge of the Superior Court before whom
the petition for relief is brought, shall change the
venue to an adjoining county; provided further,
that the losing county in the contest shall pay
all costs; providing, further, that the taxes due
the State and the undisputed taxes due the
counties contesting shall not be held up and the
restraint shall only apply to the taxes in dispute
under the issue to be plainly set forth in the pe-
tition. Acts 1903, p. 16; 1913, p. 38.
As to fast bills of exceptions, see §§ 6153, 6245.
Editor's Note.— The second paragraph of this section was
added by the amendment of 1913 (Acts 1913, p. 38).
Effect of Word "May."— The word "may" in the provi-
sion in this section that a "county may apply to the su-
perior court," should not be construed as having the force
of "shall." That provision confers the right upon a county,
where it is about to be deprived of taxes rightfully pay-
able to it, to have that question settled as between itself
and another county; but it should not be so construed as
to put it in the power of the landowner and taxpayer to
force a county into litigation for the purpose of determin-
ing whether it is entitled to such taxes. Williams v. Wil-
kinson County, 146 Ga. 601, 604, 91 S. E. 571.
§ 1080. Taxes collected pending litigation, how
disposed of. — Pending the determination of the
cause, accruing taxes shall be collected by the
officers of the county to which returns may have
been made by the taxpayer, but should another
county be adjudged entitled to said taxes, judg-
ment shall be entered in favor of the county en-
titled against the county collecting, for the por-
tion thereof paid into the treasury of said col-
lecting county. Should the amount of taxes so
recovered exceed for any year the amount that
would have been assessed for that year on the
return as made by the taxpayer, had it been
made in the county entitled, such excess shall
be decreed to be returned to the taxpayer;
should it fall short, execution shall be issued by
the officers of the county entitled, as in case of
defaulting taxpayers. Acts 1903, p. 16.
§ 1081. Commissions pending suit. — No com-
mission shall be paid to the tax-receiver or tax-
collector on State and county taxes collected
pending suit over it, as above provided, but the
county's portion of said tax, together with com-
missions on State and county taxes allowed said
officers, shall be paid into the county treasury of
the county collecting, to wait the decision of
said cause, and upon the final determination
thereof the officers of the county adjudged en-
titled shall receive their legal commissions. The
State taxes collected pending such suit shall be
forwarded to the comptroller-general by the
officer collecting, as though no such suit were
pending, but commissions allowed thereon shall
be paid into the county treasury of his county
to await the determination of said suit, as above
provided. Acts 1903, p. 16.
Cross References. — As to compensation generally, see §
1234; as to salary of tax-collector and tax-receiver, and
duty to pay * over fees collected to county or state, see §
6017 (5) ; for all counties having 200,000 population or more,
counties having between 44,000 and 60,000, and from 70,000
to 150,000 population, see § 6017 (12) ; counties of from
60,000 to 70,000 population, see § 6017 (25).
§ 1082. (§ 828.) Negligence of receiver, etc. —
It shall not be an excuse to any person for not
making a return of his taxes as the law requires,
that the receiver should fail to advertise or fill
his appointments.
As to negligence of collector, see § 1212.
§ 1083. (§ 829.) One whose return has been
refused, etc. — The person whose return is re-
fused may save a double tax by making his re-
turn to the ordinary, together with an affidavit
in writing that he tendered said return to the
receiver, stating the time when, place where, and
persons present, and that it was refused.
§ 1084. (§ 830.) What is no refusal.— The
claim of the receiver to assess a taxpayer's prop-
erty is not a refusal to receive a return.
§ 1085. (§ 831.) Names to be taken in full.—
Receivers of tax returns in the various counties
of this State shall enter on their digests the first
name in full of all taxpayers. Acts 1876, p. 15.
§ 1086. (§ 832.) Names of colored persons
shall be entered alphabetically, etc. — The tax-
receivers shall place the names of the colored
taxpayers, in each militia district of the county,
upon the tax digest in alphabetical order.
Names of colored and white taxpayers shall be
made out separately on the tax digest. Acts
1894, p. 31.
SECTION 4.
Form of Tax Returns.
§ 1087. (§ 833.) Questions for taxpayers. —
For the purpose of having a full and correct re-
turn of the real and personal property of this
State, it shall be the duty of the receiver of tax re-
turns to present a list to each taxpayer, which shall
contain the following:
Are you subject to poll-tax?
Are you are [a] daguerrean or other artist?
Are you a lawyer?
[ 238
>£ XUOI
>J 1VOO
Are you a doctor?
Are you a dentist?
How many hands are employed by you between
the ages of twelve and sixty-five?
How many acres of land, except wild lands, do
you own, or of how many are you the holder,
either as parent, husband, trustee, executor, ad-
ministrator, or agent? Where is the same located
by number and section? What is the value there-
of?
How many acres of wild land do you own or
represent in this county, by number, district, and
section? What is the value thereof?
How many acres of submerged lands (meaning
lands wholly covered by water as much as eight
months in each year) do you own, or of how many
are 3^ou the holder, either as parent, husband,
trustee, executor, administrator or agent? Where
is the same located by number, district and sec-
tion? What is the value thereof?
What is the value of your improved city or
town property, including the improvements there-
on?
What is the value of your unimproved city or
town property?
How many shares in the bank of which you are
president, and what is 'the value thereof?
How much capital have you in the bank of
which you are .president, as a sinking fund, or sur-
plus fund, and not represented in the value of the
shares?
How much property, real and personal, does
the bank of which you are president own, not used
in the banking business, and what is the value
thereof?
How much money or capital has the building
association or the building and loan association of
which you are the president, in loans?
How much money on hand?
What is the gross value of your notes, accounts,
or other obligations for money, and the market
value thereof — whether the same are within or
without this State?
What is the value of your turpentine-still and
appurtenances?
What is the value of your leases or leased
privileges or other assets of like character?
The value of your merchandise of all kinds on
hand?
The amount of capital invested in shipping and
tonnage?
The amount of capital invested in stocks of
companies other than such companies as are re-
quired to be returned by the presidents or their
agents to the comptroller-general?
How much capital invested in bonds, except
bonds of the United States and such bonds of this
State as are by law exempt from taxation?
How much capital has the manufacturing com-
pany of which you are president, or agent, invested
in the manufacture of woolen or cotton fabrics, in-
cluding lands, and what is the value of your
stock on hand, and what is your surplus fund?
How much capital have you invested in iron-
works, foundries, and machine-shops, including
machinery and land?
How much captial have you invested in mining,
including land, and what is your surplus fund?
[2
What is the value of your household furniture,
including your tableware?
What is the value of your kitchen furniture?
What is the value of your office furniture?
What is the value of your pianos, organs, and
other musical instruments?
What is the value of your sewing-machines?
The value of your gold watches?
The value of your silver watches?
The value of your watches made from material
other than gold or silver?
The value of gold and silver ware?
The value of diamonds and jewelry worn by
owner or not?
The value of horses?
The value of mules and asses?
The value of cattle?
The value of sheep?
The value of goats?
The value of hogs?
The value of carriages, wagons, and buggies?
The value of agricultural tools, implements, and
machinery?
The value of your library, pictures, paintings,
and statuary?
The value of cotton, corn, and other farm prod-
ucts on hand and for sale?
Value of guns, pistols, bowie-knives, and such
articles?
The value of portable sawmills, gins, engines,
and other machinery, or of such or other ma-
chinery, stationary or otherwise, and not returned
as part of the realty?
The value of all other property not herein men-
tioned?
Every person shall return for taxes all jewelry
and other property of every kind owned by his
wife and minor children, unless the member of his
or her family return their property for taxation.
Acts 1884-5, pp. 8, 28; 1886, p. 24; 1921, p. 94.
Editor's Note. — The only effect of the amendment of 1921
(Acts 1921, p. 94) was to define the term "submerged
lands;" provide for a separate classification of such lands
for taxation; and to provide for the amendment of tax re-
turn forms by adding thereto a question (three questions,
in fact) as to the number of acres of submerged lands held
by each taxpayer in any capacity, together with the loca-
tion and value thereof.
Lease of Railroad Property. — Whether the question, "What
is the value of your leases, or leased privileges, or other as-
sets of like character?" in this section was only intended
to cover leases which create an interest in the property,
and was not intended to apply to the ordinary case of
landlord and tenant where the tenant has only a usu-
fructuary right in the property, it does apply to a lease
of land for a long period of time, renewable in perpetuity
at the option of the lessee. Wright v. Central of Ga. R.
Co., 146 Ga. 406, 411, 91 S. E. 471.
§ 1088. Lists for tax returns. — It shall be the
duty of the comptroller-general when he causes to
be printed the lists which are to be presented to the
taxpayer, as is required under existing laws, to in-
corporate therein the questions provided in this
Chapter, and to so arrange them as to require a
separate answer to each question, and the comp-
troller-general is authorized and required to in-
clude any other question in said lists which in his
judgment will cause a fuller return of and reach
property subject to taxation under the laws of this
State, and shall omit from said lists such questions
as are more explicitly covered and set forth in this
Chapter or under existing laws. Acts 1909 p. 74.
9]
1089
BLANKS, LISTS, AND DIGESTS
§ 1096
§ 1089. (§ 803.) Billiard-tables, etc. — Where
persons are specifically taxed for keeping a billiard
or pool table, bagatelle-table, or ten-pin alley, they
need not give in the value thereof.
§ 1080. Consumer of fertilizer not to pay tax,
when. — The consumers of commercial fertilizers
shall not be required to return for taxation any
fertilizers where the land upon which the same is
to be used has been properly returned for taxation;
and the several tax-receivers of this State shall not
require consumers of commercial fertilizers, or any
other manures commonly used by farmers and
others as fertilizers, to return the same where the
land upon which it is to be used has been properly
returned. Acts 1901, p. 65.
SECTION 5.
Oath of Taxpayer.
§ 1091. (§ 834.) Oath of taxpayer. — The oath
to be administered to all persons making returns of
taxable property for themselves or as agent of an-
other, and to be attached to the lists provided for
in this Chapter, shall be as follows: "I do solemnly
swear that I have carefully read (or have heard
read) and have duly considered the questions pro-
pounded in the foregoing tax-list, and that the
value placed by me on the property returned, as
shown by said list, is at the true market value
thereof; and I further swear that I returned, for
the purpose of being taxed thereon, every species
of property that I own in my own right, or have
control of, either as agent, executor, administrator,
or otherwise; and that in making said return, for
the purpose of being taxed thereon, I have not
attempted, either by transferring my property to
another or by any other means, to evade the laws
governing taxation in this State. I do further swear
that in making said return I have done so by esti-
mating the true worth and value of every species
of property contained therein" Which oath shall
be subscribed by the persons making the return,
and the administration and taking of the oath
shall be attested by the receiver of tax returns; but
the oath of non-residents, females, and sick per-
sons may be taken and subscribed before any per-
son authorized to administer an oath, and cause
the same to be delivered to the tax-receiver, who
shall receive the same. Acts 1884-5, p. 28. 1886, p.
24; 1909, p. 72.
See P. C, § 267.
Oath Part of Return. — The oath prescribed by this sec-
tion is a part of the return of the taxpayer, and is nec-
essary to make the return complete or of any probative
value. McLendon v. Dunlap Hdw. Co., 3 Ga. App. 206,
210, 59 S. R. 718.
Contemplates Return of Trust Property. — Clearly this
section contemplates that the taxpayer must return every
species of property which he controls as agent or trustee.
Douglas v. McCurdy, 154 Ga. 814, 115 S. E. 658.
§ 1092. Oath of taxpayer must be actually ad-
ministered.—It shall be the duty of the receiver of
tax returns of the several counties of this State,
before receiving the returns of any taxpayer, to
actually administer the oath required by law of
taxpayers, the oath being read by the taxpayer in
the prese.Jc? of and in the hearing of the tax-re-
ceiver, or by the tax receiver in the hearing and
presence of the taxpayer; and for failure of such
receiver to so administer such oath, except in those
cases where by law said oath may be made before
some other persons, such receiver will be guilty of
a misdemeanor. Acts 1909, p. 72.
See P. C, § 278.
SECTION 6.
Blanks, Lists, and Digests.
§ 1093 (§ 835.) Lists furnished to tax-re-
ceivers.— It shall be the duty of the comptroller-
general to have the lists provided for in this Article
printed with the oath required by preceding sec-
tions attached thereto, and, at the time of forward-
ing the digests to the receivers of tax returns, he
shall forward to each receiver of tax returns a
sufficient number of such lists to enable them to
take the returns of the taxpayers of their respec-
tive counties; the lists furnished by the comp-
troller-general, as above provided, shall be so ar-
ranged as to make the items in the same corre-
spond as nearly as practicable with the items on
the digests as furnished to the receivers of tax
returns. Acts 1884-5, p. 28; 1886, p. 24.
§ 1094. (§ 836.) Comptroller to furnish re-
ceivers blank forms. — The receivers of tax returns
in making the digests shall conform to the forms
furnished and shall make out three digests, and
each digest shall be of uniform size, and when re-
turned shall be bound and labeled. Act 1945,
Cobb, 1076.
§ 1095. (§ 837.) Returns, how entered in di-
gests.—Land and interest in land, together with
the returns of personal estate and other interests
the subject of taxation, must be returned and set
down in the digest in separate columns according
to the classification furnished the receivers by the
comptroller-general in each year, and their
aggregate value carried out. Acts 1851-2, p. 290.
§ 1096. (§ 838.) Number of digests, to whom
furnished.— The receiver must make out three of
such digests in a fair and legible hand writing, and
furnish, when the tax returns are finally adjusted
and fixed as provided by § 1116(21), one to the
Comptroller-General, one to the ordinary, and one
to the tax-collector. Acts 1851-2, p. 291; 1913, p.
123.
Editor's Note.— The Act of 1913 (Acts 1913, p. 123), pro-
viding for a system of tax equalization, appearing in this
Code as §§ 1116 (6) to 1116 (21), inclusive, contains the
usual clause repealing all laws and parts of laws in con-
flict therewith. Section 1 of that Act [Code, § 1116 (6)]
provides that "the tax receiver shall not transmit copies
of his tax digest to the tax collector and ordinary of the
county until after the same shall have been finally re-
ceived and corrected to conform to the final findings of the
State Tax Commissioner under the provisions of § 14" of
that act [Code, § 1116 (21)], but when so finally adjusted
and fixed, "the tax receiver shall forthwith send one copy
of the revised and corrected county tax digest to the
comptroller-general and one copy each to the tax collector
and ordinary of the county as now provided by law."
To make this section conform to the provisions of that
act, the words "when the tax returns are finally adjusted
and fixed as provided by § 1116 (21) have been substi-
tuted for the words "by the first day of August in each
year," where the latter formerly appeared in this section.
240 ]
§ 1097
(JVJiK.PAYMliJNT5 AND MlblAKJ^iS, HOW CUKKKCTED
§ 1101
SECTION 7.
Assessment or Arbitration in Case of Insufficient
Return.
§ 1097. (§ 839.) In case of false return, tax-
receiver to assess value. — Each return shall be
scrutinized carefully by the tax-receiver, and if in
bis judgment he shall find the property embraced
in the return, or any portion of it, returned below
its value, he shall assess the value at once or with-
in thirty days thereafter. Acts 1858, p. 103.
See 7 Cum. Dig. 297.
See note to succeeding section.
Editor's Note. — This section is probably superseded by
;he Act of 1918, see editor's note under § 1116 (1).
App'ies Only to Undervaluation. — This section applies
;vhen the owner makes a return embracing all his prop-
erty, but where it is returned below its value. But if the
>wner fails to make a return, in whole or in part, that
s, if he. omits to embrace in his return all of his prop-
erty or all of a given class, it is the duty of the receiver
;§ 1116 (1)] to assess what is omitted, according to law
n force at the time when he should have made his re-
:urn, and collect the taxes due on the omitted property for
brmer years. Douglas v. McCurdy, 154 Ga. 814, 818, 115
3. E. 658.
No Assessment after Thirty Days. — By this section, the
:ax-receiver, when dissatisfied with a return made to him
m oath, is required to assess the property within thirty
lays after the return is made. If for any cause he omits
:o do this, he can not do it afterwards, nor can any court
:onfer that power on him. Bohler v. Verdery, 92 Ga. 715,
19 S. E. 36; Dubigan v. Brunswick, 106 Ga. 317, 32 S.
E. 102; Douglas v. Forrester, 150 Ga. 57, 102 S. E. 347;
Douglas v. McCurdy, 154 Ga. 814, 818, 115 S. E. 658.
Presumption of Compliance. — The law presumes that the
:ax-receiver of the county of the taxpayer's residence per-
rormed his duty under this section. Iyott v. Dysart, 45
3a. 356, 362.
Necessity for Notice. — In order to make the assessment
jy the tax-receiver under this section valid and the basis
or taxation, it should appear that, where the assessment
vas not made immediately upon receipt of the return but
it some subsequent "time within thirty days thereafter,
lotice was given as provided in § 1098. Shippen Bros.
Umber Co. v. Adams, 141 Ga. 354, 355, 80 S. E. 1009.
Returns to Comptroller. — If this section applies to re-
:urns made to the comptroller-general, it has no opera-
ion where there was no separate return of portions of a
railroad at an undervaluation. State v. Southwestern
Railroad, 70 Ga. 11, 13, 28.
§ 1098. (§ 840.) Subsequent proceedings. — If
such assessment is not made by the receiver in-
stanter, he shall give the taxpayer notice of his
assessment, and in either case it shall be the tax-
payer's privilege to have it left to three disin-
terested persons, one of whom he shall select, the
other shall be selected by the receiver, and these
two shall select a third if they disagree, a majority
af whom shall fix the assessment. Acts 1858, p. 103.
See note to preceding section.
Editor's Note. — This section is probably superseded by
the Act of 1918, see editor's note under § 1116 (1).
Due Process of Law. — "A tax law which grants to the
taxpayer a right to be heard on the assessment of his
property before final judgment provides a due process for
determining the valuation, although it makes no provision
for a rehearing." Vestel v. Edwards, 143 Ga. 368, 373,
35 S. E. 187. See also Shewmake Bros. v. Dominy, 147
Ga. 577, 94 S. E. 999.
Statutory Methods of Assessment Exhaustive. — "The
statutory methods provided for the levy, assessment, and
collection of taxes, and particularly taxes of delinquents,
are not merely cumulative; they are exhaustive. See
State v. Western & A. R. Co., 136 Ga. 619, 626, 71 S. E-
1055." Richmond County v. Steed, 150 Ga. 229, 234, 103
S. E. 253; State v. Callaway, 150 Ga. 235, 238, 103 S. E.
792.
Where Arbitrators Fail to Select Umpire. — This section
does not provide for the selection of a third assessor, or
umpire, except as he may be selected by the two assess-
ors appointed by the tax-receiver and the taxpayer. But
construing this section in conjunction with the Act of 1910
[Acts 1910, p. 24; this Code, § 1116 (4)], as modified by
the Act of 1913 [Acts 1913, p. 128; this Code, § 1116 (11)]
it can not be held that the law does not provide for a
case where the arbitrators fail to agree, and one or both
arbitrarily or capriciously refuse to agree on an umpire.
There need be no unnecessary delay in the appointment
of an umpire, or in the arbitration proceedings. So that,
if the parties avail themselves of it, there is a remedy
provided by law whereby the ordinary or county commis-
sioners, as the case may be, can appoint an umpire in
case of disagreement of the assessors, and the hearing can
proceed without delay. Vestel v. Edwards, 143 Ga. 368,
373, 85 S. E. 187.
Effect of Failure to Assess on Time. — Where a tax -re-
ceiver fails to make his assessment within the time pre-
scribed by § 1097, the courts can not, at his instance, re-
quire the taxpayer to submit to an assessment by
arbitrators, under this section. Dubignon v. Brunswick,
106 Ga. 317, 322, 32 S. E. 102.
Power of Arbitrators.— Persons selected under this section
to do justice touching the true assessment of property for
taxation, have power to fix the assessment at the true
valuation of the property, whether that is less than the
amount at which it has been returned by the taxpayer or
more than the amount at which it has been assessed by
the receiver of tax returns, the scheme of the statute be-
ing not merely an arbitration but a substitution of dis-
interested persons to ascertain true value without refer-
ence to the estimate either of the taxpayer or the receiver.
Collier v. Morrow, 90 Ga. 148, 15 S. E. 768.
Notice of Meeting of Arbitrators.— Inasmuch as this
section makes no such provision, the board of disinter-
ested persons is not bound to give notice of the time and
place of its meeting, nor to afford the taxpayer any op-
portunity to be heard, the statute contemplating that these
persons should act upon their own knowledge of the prop-
erty and opinion of its value, and not upon evidence or
the examination of witnesses. Collier v. Morrow, 90 Ga
148, 15 S. E. 768.
Estoppel of Taxpayer. — A taxpayer, having voluntarily
invoked the benefit of this section, by exercising the priv-
ilege of selecting on his part one of the disinterested
persons, can not complain that the mode of assessment
to which he has thus resorted is unconstitutional for any
reason. Collier v. Morrow, 90 Ga. 148, 15 S. E. 768.
§ 1099. (§ 841.) Property returned below its
value. — It is the privilege of any taxpayer of the
county where a return is made to complain to the
receiver at any time before his digest is completed
that any return is below the true value of the prop-
erty; in which case he shall notify the person
who made the return complained of, if practicable,
verbally or by writing, giving him the name of
complainant and the ground of complaint, and
shall proceed to have a new assessment in the
terms of the preceding section.
Editor's Note. — If the preceding section is superseded by
the Act of 1918, the procedure would very likely be under
that act, see editor's note to § 116 (1).
1100. (§ 842L) Oath of assessors. — Whenever
such assessors are called in, they shall take an oath
before the receiver to do justice between the
parties at variance touching the true assessment of
the tax return. Acts 1859, p. 70.
Substantial Compliance. — Where two arbitrators sub-
scribed to an oath that they would "faithfully and impar-
tially make a true and just assessment of the tax returns
and property in question," and would "determine the mat-
ter submitted to them according to law and the justice and
equity of the case," and the oath subscribed by the third
arbitrator recited that he would "impartially determine the
matter submitted according to law and the justice and eq-
uity of the case," the oaths to which the arbitrators sub-
scribed were in substance sufficient to comply with this sec-
tion. A failure to take the oath in the exact words of the
Code would not invalidate the proceedings. State v. Cal-
laway, 150 Ga. 235, 237, 103 S. E. 792.
SECTION S.
Overpayment and Mistakes, How Corrected.
§ 1101. (§ 843.) Mistakes, how corrected. — If
a receiver makes a mistake in his digest, it is the
241
§ 1102
RELIEF FROM DOUBLE TAX
§ H08
duty of the comptroller-general, with the sanction
of the Governor, to correct such mistake by mak-
ing the necessary entries in the digest furnished
the comptroller, and must in writing notify the
ordinary and the tax-collector of the county from
which such digest comes, of such mistake and cor-
rection. Acts 1845, Cobb, 1077.
As to voluntary payments, see § 4317.
§ 1102. (§ 844.) Tax overpaid to be refunded
when in the treasury.— If by reason of such mis-
take, or from any other cause, a taxpayer's money
is in the treasury for a greater amount than he is
liable for, of which such officer is clearly satisfied,
he may certify the same to the Governor, who
shall, if he approves, draw his warrant on the
treasury in favor of such taxpayer for the proper
amount, out of any moneys not otherwise ap-
propriated. Act 1845, Cobb, 1078.
See 12 Enc. Dig. 157.
As to voluntary payments, see § 4317.
§ 1103. (§ 845.) And before reaching the treas-
ury.— If such mistake is ascertained before the
tax-collector has paid the amount into the treas-
ury, the comptroller-general, with the sanction of
the Governor, shall authorize such collector to re-
fund the amount, or, if he has not collected it, to
order him to desist. Acts 1855-6, p. 275.
§ 1104. (§ 846.) Doubtful cases. — When any
similar cases arise which are doubtful in the
opinion of the Governor, he shall refer the matter
to the General Assembly. Acts 1855-6, p. 275.
SECTION 8A.
Examination of Tax Returns in Certain Counties.
§ 1104(1). Chairman of county board to ex-
amine returns; compensation. — The County Com-
missioners or like authority of any county in this
state which has a city within its limits of a popula-
tion of not less than 80,000 or more than 150,000
according to the census of 1920 and all future fed-
eral censuses, are authorized to employ the chair-
man of the county board of tax assessors each
year continuous^ for the purpose of examining the
returns of both real and personal property of each
tax payer in said county, to ascertain and deter-
mine if any tax payer has omitted from his return
any property that should be returned, or has failed
to return any of his property at a just and fair valua-
tion, and to report in writing the results of his
activities in any of these respects to the county
board of tax assessors when they meet; to require
said chairman to devote his entire time to the dis-
charge of said duties, and serve as secretary of
said board, at an aggregate compensation of not
to exceed twenty-four hundred dollars (2,400.00) a
year. Acts 1925, p. 265.
§ 1104(2). Secretarial duties. — When said
chairman is thus employed, he shall perform all of
the secretarial duties of said board without addi-
tional compensation, and said county board shall
have no authority to employ an agent to seek out
unreturned property. Acts 1925, p. 265.
SECTION 9.
Double Tax, When Collected.
§ 1105. (§ 847.) Defaulters to be doubly taxed.
— If a person fails to make a return, in whole or in
part, or fails to affix a value to his property, it is
the duty of the receiver to make the valuation and
assess the taxation thereon, and in all other re-
spects to make the return for the defaulting per-
son from the best information he can obtain, and
having done so, he shall double the tax in the last
column of the digest against such defaulters, after
having placed the proper market value or specific
return in the proper column; and for every year's
default the defaulted shall be taxed double until a 1
return is made. Act 1813, Cobb, 1059; Act 1845,
Cobb, 1076; Act 1847, Cobb, 1078; Acts 1851-2, p.
290; 1863-4, p. 49; 1873, p. 20.
See 12 Enc. Dig. 102.
As to double tax for failure to return franchise, see §
1029. As to saving double tax where return has been re-
fused, see § 1083.
Where no machinery is provided for the return of cer-
tain property, it would be inequitable to exact a double tax
for laches in not making such returns. Savannah, etc., Ry.
v. Morton, 71 Ga. 25.
If one has duly given in all his taxable property to the
tax receiver at it's proper value, and the tax collector as-
sessed a double tax against him for other property which
the taxpayer does not in fact have, such double tax is ille-
gal. White v. Georgia, 51 Ga. 252.
§ 1106. (§ 848.) Property not returned to be
doubly taxed. — If there is taxable property, real or
personal, in a county, that to the satisfaction of
the receiver, when he comes to conclude his digest,
is not returned by any person, and he does no.t
know the owner or possessor, it is his duty to
assess and double-tax it, describing it particularly;
and the same power is conferred on the tax-collec-
tor as to such property, when not assessed, or
overlooked by the receiver.
See § 1168 and note.
A tax-collector has no authority of law to issue a tax ex-
ecution against land in rem if its owner is in possession
thereof at the time when it becomes the officer's duty, be-
cause of the owner's having made default in returning the
land, to make a return for him. Norris v. Coley, 100 Ga.
547, 28 S. E. 222.
SECTION 10.
Relief from Double Tax.
§ 1107. (§ 849.) When defaulters not liable for
double tax. — If persons who are required to give
in land in the counties where situated fail so to do,
they shall be liable only for the real tax assessed
by the receiver, unless they fail to pay the amount
by the time required; in which event the collector
shall collect the double tax and issue process
therefor.
See §§ 1064 et seq.
§ 1108. (§ 850.) Defaulting taxpayer, how re-
lieved.— When a taxpayer has been returned as a
defaulter and doubly taxed, either by the receiver
or collector, the ordinary is authorized to relieve
the defaulter of the penalty for default at the time
said ordinary allows the collector his insolvent
lists: Provided, that said taxpayer shows to such
ordinary, by satisfactory evidence, that either from
providential or other good cause he had not an op-
portunity to make his returns to the receiver of
tax returns, and at the time of such release
[ 242 ]
§ 1109
RETURNS BY, AND COLLECTION FROM DELINQUENTS
§ 1116(1)
promptly pays his proper tax and one dollar to
the collector as his fee. The collector shall
promptly inform the comptroller-general of such
release and the amount of taxes paid. Acts 1860, p.
59.
§ 1109. (§ 851.) Defaulters, how relieved from
double tax. — All defaulters may at any time, and
"or the same causes, before the digest is made up
ind ready to be sent to the comptroller, save the
louble tax by likewise giving in to the ordinary
ind paying him one dollar, who shall give a copy
3f such returns instanter to the receiver, and he
mall enter it in the several digests. Act 1804, Cobb,
1051.
§ 1110. (§ 852.) Defaulter's oath. — The ordi-
lary shall require the taxpayer to swear to the
:ause of his delay, and shall state the same in the
:opies furnished the comptroller or receiver.
§ 1111. (§ 853.) Persons wrongly judged as
lefaulters, how relieved. — When a person shall
lave lawfully returned and paid his taxes in one
county, and is treated as a defaulter in another for
he same tax or any portion thereof, the grand
ury or the ordinary of the county claiming the
ax may discharge said defaulter, which will ex-
■mpt him from liability for it, and shall authorize
he comptroller to credit the collector for the
ame, and the Governor to draw his warrant there-
or. Acts 1815, Cobb, 1062.
SECTION 11.
Liability of Agents of Non-Residents.
§ 1112. (§; 854.) Agents of non-residents.— All
)ersons who give in property for persons not res-
dent in the State shall be personally liable for the
axes, as well as the principal and his property.
Vets 1804, Cobb, 1047.
See 12 Enc. Dig. 99.
Validity of Sale. — I,and having been given in for taxation
or the year 1868 by the agent of the estate of a non-resi-
ent, he having died in the year 1860, which was subse-
uently sold by the sheriff for the non-payment of state
nd county taxes, under an execution for the same against
uch agent, the purchaser at such sale acquired a valid ti-
le. Doe v. Roe, 51 Ga. 454.
SECTION 12.
Taxes of Former Years.
§ 1113. (§ 855.) Taxes for former years, how
eturned and collected. — Receivers and collectors
re required to receive the returns and to collect
he taxes thereon for former years, when any per-
on is in default, which taxes shall be assessed ac-
ording to the law in force at the time the default
»ccurred, and shall be so specified in the digest.
Vet 1813, Cobb, 1060.
Rules Applicable. — When the owner of property has
mitted to return the same for taxation at the time and
Dr the years the return should have been made, such owner
5 required to do so for each year he is a delinquent, such
eturn to be made under the same laws, rules and regula-
ions as existed during the year in default. Shewmake
Jros. v. Downing, 147 Ga. 577, 94 S. E- 999.
Effect on Double Tax. — This section, especially when
aken in connection with the following section, would seem
o relieve the defaulter, when he voluntarily goes forward
nd returns his back-taxes, from the penalty of double
axation, imposed in the event the receiver discovers the
property withheld from taxation and returns the owner as
a defaulter, under § 1108. Macon & Augusta Railroad Co.
v. Little, 45 Ga. 370, 383.
SECTION 13.
Estates not Liable for Double Tax, When.
§ 1114. (§ 856.) Estate not liable to default,
when. — The estate of any person shall not be liable
for default when said person may have died before
the time expired for giving in taxes for the year,
and the representatives or any heir may give in the
same, and in any event, for that year, such estate
shall not be liable to double tax. Act 1843, Cobb,
1057.
SECTION 14.
Liability of Tax Officers to Third Parties.
§ 1115. (§ 857.) Officer liable for failure of
duty. — If any person has given in his lands as
herein prescribed, and shall suffer injury by the
failure of the receivers of tax returns to do their
duty, the officer so offending shall be liable on his
bond to the party so damaged for the full value of
the land sold. Acts 1880-1, p. 45.
As to effect on liability of taxpayer, see § 1082.
SECTION 15.
Colored Taxpayers' Returns.
§ 1116. (§ 858.) Returns of taxes paid by col-
ored people to be made. — The several receivers of
tax returns and tax-collectors in this State, or
other officers performing similar duties, shall make
returns to the comptroller-general of the character
and amount of all taxes returned or paid by col-
ored taxpayers in this State. And it shall be the
duty of the comptroller-general in his annual re-
port to make a general exhibit of the character and
amount of the taxes so returned. Acts 1874, p. 109
ARTICLE 2A.
Returns by, and Collection from Delinquents.
§ 1116(1). Undervaluation of property, or fail-
ure to return; lien not against innocent holder. —
When the owner of property has omitted to re-
turn the same for taxation at the time and for the
years the return should have been made, or having
returned his property or part of same, has grossly
undervalued the property returned, or his property
has .been assessed for taxation at a figure grossly
below its true value, such owner, or, if dead, his
personal representative or representatives, is re-
quired to return such property for taxation for each
year he is delinquent, whether delinquency results
from failure to return or from gross undervalua-
tion, either by the delinquent or by assessors, said
return to be made under the same laws, rules and
regulations as existed during the year of said de-
fault, or said property was returned or assessed
for taxation at figures grossly below its true value.
Provided, that no lien for such taxes shall be en-
forced against any specific property which has
been previously alienated or encumbered, and it is
243 ]
§ 1116(1)
RETURNS BY, AND COLLECTION FROM DELINQUENTS
§ 1116(4)
in the hands of innocent holders without notice.
Acts 1918, pp. 232, 233.
Editor's Note.— Inasmuch as this act repeals by implica-
tion some of the prior laws on the subject and is closely
related to others, a general note discussing the relation-
ship is here given.
There are two methods of making tax returns in Georgia.
One is to the comptroller -general as provided in §§ 1042
et seq., requiring certain companies to make returns. The
other is to the tax receiver of the county as provided in
§§ 1064 et seq.
For each of these methods the Code of 1910 generally pro-
vides individual procedure for assessments and contest.
Also, the Act of 1910, page 22, provided for contests of as-
sessments where no other manner was prescribed by law.
In 1913 the act creating the county board of equalizers
[§§ 1116 (6), et seq. of this Code] was passed. This act
besides giving the board power to assess taxes, etc., pro-
vides for procedure in such cases.
In 1918 the act from which this and the following sections
were taken was passed. Reference to the caption will show
that its purpose is to provide for the collection of taxes
due to the state, etc. It has been held in State v. Calla-
way, 152 Ga. 871, 874, 111 S. E. 563 and Callaway v. Boh-
ler, 291 Fed. 243, that this act repealed by implication the
Act of 1910, supra.
It is probable that this ■ act also repealed all those sec-
tions of the Code of 1910 providing for the assessment and
hearing in cases where no returns at all have been made
whether they are supposed to be made to the tax receiver
or the comptroller, for it makes express provisions for
such cases. This would apply to all the sections from §§
1055 to 1061.
The question, however, as to whether this act supersedes
all prior laws for assessment and contest where returns are
made, but undervalue the property, seems' to be more in-
volved.
In the case of such returns to the comptroller-general it
makes no material difference because the procedure in each
case would be the same [see §§ 1139 (4), 1045, and 1050]
except that § 1050 provides for the assessment to be made
within sixty days.
But this is not true where such returns are required to
be made to the tax receiver. In the case of such under-
valued returns, unless this statute repeals all prior code
sections (§§ 1097, 1098), the tax receiver would have to pro-
ceed if the undervaluation were gross under this statute as
expressly provided, but if not gross under the code sec-
tions. This would be a matter of discretion with him.
Under this situation, if the tax receiver raises the returns
made, the taxpayer would of necessity have to ascertain
under which law the receiver was proceeding before he could
contest the assessment, for under the statute such tax-
payer would have to proceed in equity while under the
sections by arbitration. In view of this fact it is probable
that the legislature intended to repeal the code sections.
This position is sustained by the statement made in State
v. Callaway, supra, that "the laws fixing procedure for
arbitration of tax assessments claimed by delinquents to
be excessive, in force prior to the enactment of the Act
of 1918 (this act) are bv it repealed." And see L,ane v.
Unadella, 154 Ga. 577, 114 S. E. 636.
This is true notwithstanding the fact that the case was
one where no returns at all were made, while the Act of
1910, which is limited by its terms to cases of undervalua-
tion (see § 4 of the Act on page 24), was under consider-
ation— it is probable that the court also had in mind the
law relating to no returns, see State v. Callaway, 150 Ga.
235, 103 S. F- 792, which was cited by the court. Since the
terms of the Act of 1910 limit it to undervalued returns so
far as related to returns to tax receivers, and since such
act expressly states that it is cumulative to the prior law,
inasmuch as this act (Act 1918) repeals the Act of 1910 by
implication without stating that the purpose is to be cumu-
lative to other prior law, it would seem to also repeal such
other law, there being no reason for a repeal of the one
without the other.
In view of these considerations, then, a summary of the
laws of assessment and contest would seem to be as fol-
lows: 1st. In those cases where the returns are required
to be made to the comptroller- general, if he rejects the
returns or if none are made, he would proceed under this
act (unless in some instances he would proceed under the
old section, the procedure in each case being the same.)
2nd. In those cases where returns are required to be made
to the tax receiver, if such returns are undervalued, whether
grossly or otherwise, and in the case where no returns are
made the tax receiver would proceed under this act, if it
repeals the prior undervaluation law — if not repealed, where
the undervaluation is not gross, under the prior law, §§
1097 and 1098. Of course the board of equalization ma 3
assess property under §§ 1116 (6) et seq.
As to the collection of taxes from delinquents of taxes
other than ad valorem which are not required to be made
to the tax receiver, reference should be had to §§ 1245 (7)
et seq. See editor's notes under § 1116 (6).
Effect upon § 1116 (11).— The provision of § 1116 (11)
relating to the duties of the board is not repealed by this
section, et seq., relating to tax collections from delinquents.
Mitchell County v. Phillips, 152 Ga. 787, 111 S. E. 347.
For cases construing the Act of 1910 see: Friedlander
Bros. v. Moultrie, 155 Ga. 184, 190, 116 S. E. 845; Rich-
mond County v. Steed, 150 Ga. 229, 234, 103 S. E- 253; Ves-
tel v. Edwards, 143 Ga. 368, 85 S. E- 187; Webb v. New-
som, 138 Ga. 342, 345, 75 S. E. 106.
§ 1116(2). Notice and demand, by Comptroller.
— When the owner of said property, or, if dead,
his personal representative or representatives, re-
fuses or fails to make returns in cases of property
which should have been returned to the Comp-
troller-General, the said Comptroller-General shall
notify, in writing, such owner or his personal re-
presentative or representatives of his delinquency,
demanding that a return shall be made thereof
within twenty days. Acts 1918, pp. 232, 233.
This section does not change the law of §§ 1061 (l)-(3).
§ 1116(3). Assessment of value, by comptroller;
issue of excessiveness. — If the delinquent or his
personal representative or representatives, as pro-
vided for in Section 1116(2), refuses or fails to re-
turn such property after the notice given, or re-
turns it below what the Comptroller-General
deems its value, it shall then be the duty of the
Comptroller-General to assess such property for
taxation for State, county, or municipal and school
purposes, from the best information he can obtain
as to its value, for each year in default, and notify
such delinquent or his personal representative or
representatives of the valuation, which valuation
shall be final, unless the person or persons so noti-
fied raise the question that it is excessive, in which
event the further procedure shall be as provided by
Section 1045. Acts 1918, pp. 232, 234. .
See §§ 1551 (144), (145), (146).
Remedy Valid Classification. — The provisions of Acts Ga.
1918, p. 232, relative to assessment of property omitted or
grossly undervalued by owner, for different remedies for
those making returns to the comptroller and those mak-
ing returns to tax receivers, [§ 1116 (4)], held justified
under doctrine of right to classify. Callaway v. Bohler,
291 Fed. 243.
§ 1116(4). Notice and assessment by receivers.
— When such property is of that class which
should be returned to the tax receiver of the
county, the said tax receiver shall notify in writing
such delinquent, or, if dead, his personal repre-
sentative or representatives, of such delinquency,
requiring that a return shall be made thereof with-
in twentjr days.
If the delinquent or his personal representative
or representatives, as provided in this section
refuses or fails to return such property after notice
given him, it shall be the duty of the tax receiver
to assess such property for taxation from the best
information he can obtain as to its value for the
years in default, and notify such delinquent of the
valuation, which shall be final, unless the person
or persons so notified raise the question that it is
excessive, in which event the further procedure
shall be by petition in equity in the Superior Court
of the county where such property is assessed.
Acts 1918, pp. 232, 234.
244 ]
§ 1116(5)
TAX EQUALIZATION
§ 1116(9)
§ 1116(5). Remedy in Equity.— If the delin-
quent under Section 1139(2). disputes the taxabil-
ity of such property, he may raise the question by
petition in equity in the Superior Court of Fulton
county, and if such delinquent be dead, his personal
representative or representatives shall have the
same right. If the delinquent or his personal re-
presentative or representatives, under Section
1139(3), disputes the taxability of such property,
he may raise that question by petition in equity in
the Superior Court of the county where said prop-
erty is assessed. Acts 1918, pp. 232, 234.
Due Process. — This act, providing for assessment of
property omitted or grossly undervalued by owner, and
providing that, if taxpayer raises question of excessive -
ness, further proceedings shall be by petition in equity
in the superior court, provides due process of law. Call-
away v. Bohler, 291 Fed. 243.
Matters Determined by Equity. — Acts Ga. 1918, p. 232,
providing for assessment of property omitted or grossly
undervalued by owner, and for proceedings by petition in
equity in superior court, when question of excessiveness
is raised does not contemplate that court of equity shall
assess for taxation, but only determine the issue of ex-
cessiveness. Callaway v. Bohler, 291 Fed. 243.
ARTICLE 2B.
Tax Equalization.
§ 1116(6). Duties of tax receivers. — The several
rax Receivers of this State shall open their books
:or returns of taxes on the first day of February
uid shall close the same on the first day of May
5f each year, and within ten days thereafter it
diall be the duty of the Tax Receiver of each
iounty to present the tax returns of the county for
:he current year to the County Board of Tax
\ssessors created by this Act, for the purposes
lerein contemplated and provided. The Tax Re-
viver shall not transmit copies of his Tax Digest
:o the Tax Collector and Ordinary of the county
intil after the same shall have been finally re-
vived and corrected to conform to the final find-
ngs of the State Tax Commissioner under the
provisions, of Section 1116(21). When the tax re-
urns of any county are finally adjusted and fixed
is provided by said Section 1116(21), the Tax Re-
viver shall forthwith send one copy of the revised
uid corrected County Tax Digest to the Comp-
roller-General and one copy each to the Tax
Collector and ordinary of the county as now pro-
/ided by law. The individual returns made by tax-
payers to the Tax Receiver, shall be for property
leld and subject to taxation on the first day of
January, previously. Acts 1913, p. 123.
Editor's Note. — There are several methods of dealing
with tax delinquents in Georgia. Of course the comp
troller deals with all delinquents required to give returns
to him. See §§ 1042 et seq. The tax receiver has power
under § 1116 (1) and certain sections of the Code of 1910
to deal with delinquents when taxes are required to be
returned to him. This and the following sections give
the board of county equalizers power to also deal with
such delinquents. The act creating the department of
public revenues, §§ 1245 (7) et seq., gave such department
power to deal with delinquents of license taxes, tobacco
taxes, inheritance taxes, etc., and all other taxes for which
returns are not given to the tax receiver.
§ 1116(7). Board of county tax assessors. —
There shall be and is hereby established in each of
the several counties of this State, a Board of
County Tax Assessors. Said County Board shall
consist of three members to be appointed by the
[ 24
Board of County Commissioners, or by a majority
thereof, or by the ordinary in counties which have
no Board of County Commissioners. The order
making such appointment shall be regularly en-
tered upon the record of the Superior Court of the
county, and a certificate from the Clerk of the
Superior Court reciting said order, and that such
person has taken the oath required by law, shall
constitute the commission of the members of such
County Board of Tax Assessors and no other or
further form of commission shall be required. Acts
1913, pp. 123, 124.
Who May Appoint Assessors. — The "board of super-
visors of roads, bridges, and road funds for the County
of Murray" created by the act of 1917, p. 375, did not have
authority to appoint a tax-assessor for that county; but
such power was vested by this section, in the ordinary,
there being no board of count}' commissioners. Wilson v.
Anderson, 154 Ga. 675, 115 S. E. 101.
§ 1116(8). Appointment of assessors and terms
thereof. — The members of said County Board of
Tax Assessors shall be appointed for a term of six
years and to continue until their successors are
duly appointed and qualified, provided that the
first appointment under this Act shall be of one
member for two years, one member for four years
and one member for six years, and thereafter the
members shall be appointed for a term of six
years except in cases of an appointment to fill an
existing vacancy. In case of a vacancy in said
County Board at any time, caused by death, resig-
nation, removal or otherwise, the vacancy shall be
filled and the appointment shall be made for the
remainder of the unexpired term in the same man-
ner as herein provided for the appointment of the
members of the said County Board. The first ap-
pointment of the members of said board in the
several counties, shall be as soon as practicable
after the passage of this Act and they shall be ap-
pointed for terms of office respectively, beginning
on the first day of January, 1914. Acts 1913, pp.
123, 124.
§ 1116(9). Qualifications; compensation; Re-
moval from office. — No person shall be qualified
to serve as a member of said County Board of Tax
Assessors who is not a freeholder and a resident of
the county; and if any member of said board at
any time ceases to possess these qualifications it
shall operate to vacate his office, and the vacancy
shall be filled in the manner hereinbefore provided.
The members of said board shall take an oath be-
fore the Judge or the Clerk of the Superior Court
of the county to faithfully and impartially perform
the duties imposed upon them by this Act, and also
the oath required of all civil officers. The mem-
bers of said board during the time they hold their
office and for one year thereafter, shall be in-
eligible to hold any State, county or municipal
office, but they may be re-appointed to succeed
themselves as members of said board. They shall
be paid as compensation for their services such an
amount as may be fixed from time to time by the
Board of County Commissioners, or Ordinary, as
the affairs of the county may be under the jurisdic-
tion of the one or the other, provided, that the
compensation to be paid said members, shall not
be less than three ($3.00) dollars per day each, for
the time they are in actual discharge of the duties
required of them under the Act. The compensa-
§ 1116(10)
TAX EQUALIZATION
§ 1116(11]
tion of the members of said board, and such other
expenses as may be necessary to be incurred in the
performance of the duties of the board under this
Act, shall be paid from the County Treasury in
the same manner as other payments by the county
are made. Upon petition to the Judge of the
Superior Court in term time or at chambers, by
ten or more freeholders of the county that any one
or more members of the Board of County Tax
Assessors are disqualified under this section, or
are not properly and impartially discharging their
duties under this Act, or are discriminating in
favor of certain citizens or classes of citizens and
against others, the said judge shall cite the mem-
bers of said Board of Tax Assessors so complained
of, to appear before him at a time and place in the
county to be fixed in said citation, not less than
twenty nor more than forty days from the date of
the presentation of said petition, to appear and
make answer to said petition. A copy of said
petition shall be attached to said citation and serv-
ice thereof may be made by any Sheriff, Deputy
Sheriff or Constable of this State. The officer
making the service shall serve copies and return
the original petition and citation to the Clerk of
the Court as other process is now returned. At
the time and place fixed in said citation, unless
postponed for reasonable cause, the judge shall
hear and determine the matter without the in-
tervention of a jury and shall render such judg-
ment and order either dismissing the petition or
removing the offending member or members of
said County Board of Tax Assessors from office
and declaring a vacancy therein as may be right
and proper. If either party to the controversy is
dissatisfied with said judgment and order, such
party may take the same to the Supreme Court by
fast bill of exceptions in the manner provided by
Section 5540 (6153) of the Code of 1910. Acts 1913,
pp. 123, 125.
What Are Other Offices. — The office of county registrar
is not a "county office" within the provisions of this sec-
tion as to ineligibility of members of a county board of
tax-assessors to hold county offices. Andrews v. Butts
County, 29 Ga. App. 302, 114 S. E- 912.
Change of Salary During Term. — This act, does not pro-
hibit the county commissioners from reducing, during the
term of office of a tax-assessor, the compensation originallv
fixed in excess of $3 per day. Since the board of county
commissioners is not otherwise prohibited from reducing
the compensation of the tax-assessors during their terms
of office, the board has the right, at any time during the
term of office of a tax-assessor appointed under this act,
to reduce and refix his compensation, provided the com-
pensation is not less than $3 per day. Hall Countv v.
Quillian, 32 Ga. App. 586, 124 S. K. 143.
§ 1116(10). Chairman of board; secretary;
agent to seek out unreturned property. — Said
County Boards of Tax assessors shall elect one of
their number as chairman for such term as they
shall fix but not to be less than two (2) years. The
said board shall have authority to employ a com-
petent person to serve as Secretary of said board.
He shall keep a record of the proceedings of said
board, and shall receive for his services in this
capacity, the sum of three ($3.00) dollars per day,
while actually attending sessions of said board;
the same to be paid out of the County Treasury in
the same manner in which other county payments
are made. The said board shall have authority to
emplo3^ an agent to seek out all unreturned prop-
erty in the county and bring it to the attention of
the board, and for such services they may allow
said agent a commission of ten per cent of thei
amount of the tax arising to the county from such
unreturned property so discovered and placed on
the books 'by his efforts. The commission allowed
said agent, shall be paid from the County Treas-
ury as a part of the expenses of said board. Acts
1913, pp. 123, 126.
Power of Commissioners to Employ Agent. — In view of
the general law providing for the discovery of unreturned
property herein provided (see also §§ 517, 1105, 1127), it can
not be inferred from the act of 1919 creating the Board
of County Commissioners for Decatur County, that such
board was given power to employ an agent to investigate
and have placed upon the books unreturned property paying
him 25%. Decatur County v. Roberts, 159 Ga. 528, 126 S.
E. 460, overruling, same case in 32 Ga. App. 771, 124 S.
E. 810.
§ 1116(11). Meeting of board; duties. — The
said Board of County Tax Assessors in each
county shall meet each year within ten days from
the date of the closing of the tax returns for the
current year, to receive and inspect the tax returns
to be laid before them by the Tax Receiver as
hereinbefore provided. It shall be the duty of said
board to examine all the returns of both real and
personal property of each tax payer, and if in the
opinion of the hoard any tax payer has omitted
from his returns any property that should be re-
turned or has failed to return any of his property
at a just and fair valuation, the said hoard shall
correct such returns and shall assess and fix the
just and fair valuation to be placed on said prop-
erty and shall make a note thereof and attach the
same to such returns. It shall be the duty of said
board to see that all taxable property within the
county is assessed and returned at its just and fair
valuation and that valuations as between the in-
dividual tax payers are fairly and justly equalized
so that each tax payer shall pay as near as may be,
only his proportionate share of taxes. When any
such corrections, changes and equalizations shall
have been made by said board, it shall be the duty
of the board to immediately give notice to any tax
payer of any changes made in his returns, either
personally or by leaving same at his residence or
place of business, or, in case of non-residents of
the county, by sending said notice through the
United States mails to his last known place of
address.
If any tax payer is dissatisfied with the action of
said board, he may within ten days from the giv-
ing of said notice in case of residents, and within
twenty days in case of non-residents of the county,
give notice to said board that he demands an
arbitration giving at the same time the name of his
arbitrator: the board shall name its arbitrator
within three (3) days thereafter and these two
shall select a third, a majority of whom shall fix
the assessments and the property on which said
tax payer shall pay taxes, and said decision shall
be final, except so far as the same may be affected
by the findings and orders of the State Tax Com-
missioner as hereinafter provided. The said arbi-
trators shall be free-holders of the county and shall
render their decision within ten days from the date
of the naming of the arbitrator by said board, else
the decision of said hoard shall stand affirmed and
shall be binding in the premises. Said arbitration
[ 246 ]
§ 1116(12)
TAX EQUALIZATION
§ 1116(16)
shall be had and the said arbitrator shall be com-
pensated in the same manner as is now provided
for the arbitration of individual tax returns, except
in so far as the existing law may be modified by
the provisions of this section.
Before entering upon a hearing, the said arbitra-
tors shall take an oath before the Tax Receiver or
by the chairman of the board of local assessors,
who is hereby authorized to administer oaths, that
they will faithfully and impartially make a true and
just assessment of the tax returns and property in
question and will determine the matters submitted
to them, according to law and the justice and
Equity of the case. Acts 1913, pp. 123, 127; 1918,
pp. 230, 231.
Constitutionality. — This section providing for notice to
any taxpayer whose returns have been increased, and for
arbitration, etc., is not repugnant to due-process; nor does
it deprive the taxpayer of the equal protection of the
laws. Vestal v. Edwards, 143 Ga. 368, 85 S. E. 187; Wade
v. Turner, 146 Ga. 600, 91 S. E. 690; Barnes v. Watson,
148 Ga. 822, 98 S. E. 500; Washington Exch. Bank v. Bar-
nett, 152 Ga. 704, 111 S. E. 46; Ogletree v. Woodward, 150
Ga. 691, 697, 105 S. E. 243; McGregor v. Hogan, 153 Ga.
473, 112 S. E. 471; Anthony, etc. v. Barnett, 154 Ga. 396.
114 S. E. 362.
A taxpayer who fails to ask for an arbitration after
notice is not deprived of due process of law under the
State and Federal constitutions. McGregor v. Hogan,
153 Ga. 473, 112 S. E. 471.
In a case where the arbitrators fail to agree on an award
within ten days, the question as to whether such effort
at arbitration would deny the taxpayer due process of law
is not raised under the facts of this case. McGregor v.
Hogan, 153 Ga. 473, 112 S. E. 471.
Not Repealed by § 1116 (1). — This provision of our stat-
ute relating to the duties of the board is not repealed by
§§ 1116 (1) et seq. relating to tax collections from delin-
quents. Mitchell County v. Phillips, 152 Ga. 787, 111 S. E.
374.
When Statute Applicable. — This statute can have no ap-
plication to the taxation of property for any previous
years, but only to the current years. State v. Callaway,
150 Ga. 235, 237, 103 S. E. 792.
Service. — Service by sending the notice through the
mails is not compliance with the statute, except in case
of non-residents of the county where the returns are
made. Lmder v. Watson, 151 Ga. 455, 107 S. E. 62; South-
east Ga. Land Co. v. Rogers, 157 Ga. 763, 122 S. E. 221.
When Right to Injunction Exhists. — Where notice is not
given in accordance with the provisions of the statute, a
taxpayer whose returns are so changed by a board of
county tax-assessors as to increase the valuation of the
property will, after tending the amount of tax due upon
the valuation of his property fixed in his returns duly
made, be entitled to the equitable relief of injunction
against the enforcement of the tax assessed upon the in-
crease of the valuation beyond that made in the returns.
Einder v. Watson, 151 Ga. 455, 107 S. E. 62.
Who May Be Arbitrators.— "This act contemplates that
the arbitration provided for shall be conducted in a mann?r
which shall be fair and just to each party. The appoint-
ment as an arbitrator of one who was the brother of the
chairman of the board of tax-assessors was unauthorized
by law." Vestel v. Edwards, 143 Ga. 368, 375, 85 S. E. 187.
§ 1116(13). Further duties and powers of board.
— It shall be the duty of the County Board of Tax
Assessors to diligently investigate and inquire in-
to the property owned in the county for the pur-
pose of ascertaining what property, real and per-
sonal, is subject to taxation in the county and to
require its proper returns for taxation.
The said Board shall' have authority to issue
subpoenas for the attendance of witnesses and to
require the production by any person of all his
books, papers and documents which may throw any
light upon the question of the existence or liabilty
of property of any class for taxation. If any wit-
ness, so subpoenaed, shall fail or refuse to answer
questions propounded or shall fail or refuse to
produce any such books, papers or documents,
such person shall be cited by said board to appear
before the ordinary of the county, who shall hear,
in a summary way, the reasons or excuses of such
person for such failure or refusal, and the ordinary
shall have authority to impose such punishment as
for a contempt, as he may see proper, not to ex-
ceed a fine of one hundred ($100.00) dollars or im-
prisonment not to exceed ten days or both, in the
discretion of the court. Acts 191:5, pp. 123, 128.
§ 1116(13). Valuation of property.— The County
Board of Tax Assessors, may, by rule or regula-
tion, provide the manner of ascertaining the value
for taxation of any property, real or personal, not
appearing in the digest of the preceding year, and
in cases where there has been a change of owner-
ship from any cause; it being the purpose and in-
tent of this Act to confer upon the said board full
power and authority to have placed upon the di-
gest of the current year an assessment or valuation
of all property of every character in the county
that is subject to taxation; provided, that nothing
contained in this Act shall apply to those persons,
firms or corporations who are required by existing
laws to make their returns to the Comptroller-
General. Acts 1913, pp. 123, 129.
§ 1116(14). Correction of returns in certain
counties. — Boards of County Tax Assessors in
counties in this State which have within their
limits cities of eighty thousand (80,000) population
or more, be and they are hereby authorized to
meet annually on the first day of April and to con-
tinue in session, from time to time, not later than
the first day of August of each year, for the pur-
pose of examining returns of both real and per-
sonal property of each tax payer to ascertain if
said tax payer has omitted from his return any
property that should be returned, or has failed to
return any of his property at a just and fair valua-
tion, and said board shall correct such returns and
shall assess and fix the just and fair valuation to
be placed on said property and shall make a note
thereof and attach same to such returns. Acts 1920,
p. 17.
§ 1116(15). Service of papers by sheriff; fees. —
Whenever under the provisions of this Act, any
notice, subpoenas or writings are required to be
given or served, the same may be served by any
sheriff of this State or his deputy, or by any law-
ful constable of this State except as otherwise
herein provided; and such officer shall be paid for
his services the same fees as are paid officers for
serving similar process in civil suits; and the same
shall be paid from the County Treasury in the
same manner as other payments by the county are
made. Acts 1923, pp. 123, 129.
§ 1116(16). Revision and assessment completed,
when; digest to comptroller-general. — Said
County Boards of Tax Assessors shall complete
their revision and assessment of the returns of tax
payers in their respective counties by July 1st of
each year. The Tax Receiver shall then immedi-
ately forward one copy of the completed digest to
the Comptroller-General of this State for examina-
tion and approval by the State Tax Commissioner.
Acts 1913, pp. 123, 129.
[247]
1116(17)
TAX EQUALIZATION
§ 1116(21)
§ 1116(17). Tax assessor's pay limited. — No
member of a board of tax assessors, of any county
in this State having a population of less than five
thousand and five hundred, according to the
United States census of 1910, shall receive a com-
pensation in any one year of more than thirty
dollars for all services rendered as provided in this
Act. This sum to be based on the actual time given
to the duties of tax assessor at a per diem of three
dollars per day. Acts 1918, p. 231.
§ 1116(18). State tax commissioner, appoint-
ment, qualifications, etc. — The office of State Tax
Commissioner is hereby created. He shall be ap-
pointed by the Governor by and with the approval
of the Senate and shall hold office for and during
the term of six years and until his successor is
appointed and qualified. No person shall be ap-
pointed or be qualified to hold said office who is
not a citizen and free-holder of this State. The said
State Tax Commissioner shall he commissioned
by the Governor and before entering upon the
discharge of his duties, shall take and subscribe
before the Governor an oath to faithfully discharge
the duties of the office, and to faithfully and im-
partially equalize the tax valuations of the several
counties of this State. The State Tax Commis-
sioner shall be paid a salary of four thousand
dollars per annum. He shall have his office at the
State Capitol in connection with that of the Comp-
troller-General and shall devote his entire time to
the duties of his office, and in addition to the duties
imposed upon him by this Act, he shall also act as
assistant to the Comptroller-General. He shall be
provided with a clerk at a salary of not over fifteen
hundred dollars per annum to be employed by the
Comptroller-General. The compensation of said
State Tax Commissioner and the other salaries
herein provided for, shall be paid from the State
Treasury out of funds not otherwise appropriated,
and shall be hereafter included and provided for
in the general appropriation bill with the other ex-
penses of the State Government. Acts 1913, pp.
123, 129; 1919, p. 286.
§ 1116(19). Duties of commissioner. — The
State Tax Commissioner shall investigate all
matters of taxation and recommend to the General
Assembly through the Comptroller-General from
time to time, such changes and alterations in the
tax laws of the State as, in his judgment he may
deem best to bring about a more perfect, adequate
and through system of taxation and valuation of
property for State and county taxation. Acts 1913,
pp. 123, 130.
§ 1116(20). Equalization of taxes. — It shall be
the duty of the State Tax Commissioner to care-
fully examine the Tax Digests of the several
counties of this State, filed in the office of the
Comptroller-General, and to compare said digests
for the purpose of ascertaining whether the tax
valuation of the various classes of property as
made in the respective counties of the State, is rea-
sonably uniform as between the respective coun-
ties. It is the purpose and intent of this Act to
bring about as far as practicable, an equalization
throughout the State of the values of the various
classes of property subject to be taxed, so that the
values fixed in one county shall not be out of due
proportion to the values fixed in other counties on
the same classes of property. If it shall appear to
said commissioner that in any one or more of the
counties of this State the taxable values fixed upon
any one or more classes of property are not rea-
sonably uniform with the values fixed upon the
same classes of property in other counties, the said
Commissioner shall investigate and inquire as to
the reason therefor, and, after making such investi-
gation and comparison, shall have authority to ad-
just and equalize the same, either iby adding a fixed
per centum to the county valuation of any class of
property in any county, if he finds the county
valuation was too low, or by deducting a fixed per
centum from the county valuation if he finds the
county valuation was too high, as may appear to
be just and right between the counties; and the
said State Tax Commissioner shall thereupon
notify by United States mail the chairman of the
County Board of Tax Assessors of the county af-
fected that the county valuations upon the classes
of property specified in said notice shall be raised
or lowered by the per centum fixed by said State
Tax Commissioner and the Comptroller-General
thereupon return to said county its tax digest for
correction accordingly. Acts 1913, pp. 123, 130.
Constitutionality. — The provisions of this and the follow-
ing section are not unconstitutional. Washington Exch.
Bank v. Barnett, 152 Ga. 704, 111 S. E. 46.
This section is not unconstitutional on the ground that it
is in conflict with § 6553, which declares that all taxation
shall be uniform, etc., nor is it repugnant to due process
nor does it deprive the individual taxpayer of a county of the
equal protection of the laws. Ogletree v. Woodward, 150 .Ga.
691, 105 S. E. 243.
§ 1116(21). Changes or corrections by county
board of assessors; arbitration in case of dissatis-
faction.— -Upon the giving of any such notice by
the State Tax Commissioner of changes or cor-
rections to be made in the County Tax Digest, it
shall be the duty of the chairman of the County
Board of Tax Assessors of the county affected, to
call immediately a meeting of said County Board,
and at said meeting the said County Board shall
correct the county valuation upon the class Or
classes of property specified by the State Tax
Commissioner, so as to make the same conform to
the findings of said commissioner by applying uni-
formly to the specified class or classes, of property
the fixed per centum of increase or of decrease
specified by said commissioner and by raising or
lowering all the individual returns of all the tax
payers of the county upon the specified class or
classes of property accordingly.
If the County Board of Tax Assessors is dis-
satisfied with the changes and corrections thus
ordered to be made by the State Tax Commis-
sioner,, the chairman of the County Board may,
within ten days from the giving of said notice,
notify the State Tax Commissioner that arbitra-
tion is demanded on behalf of the county and shall,
at the same time give the name and postoffice ad-
dress of the arbitrator so chosen by said County
Board. The State Tax Commissioner shall name
an arbitrator on behalf of the State within three
days from the receipt of such demand for arbitra-
tion and the two thus named shall select a third
within ten days and if they fail to agree upon a
third arbitrator within that time, he shall be named
[248 ]
§ 1116(22)
LIST OF INSOLVENTS AND DEFAULTERS
§ 1122
and appointed by the Comptroller-General. A
majority of the board of arbitration thus formed
shall have authority to render an award in the
premises. No person shall be named as arbitrator
by the State Tax Commissioner and no person
shall he selected or appointed as the third arbitra-
tor who is a citizen of or a property owner in the
county affected by the arbitration. The said
arbitrators shall meet at the county seat of the
county demanding the arbitration and shall have
all the power to require the attendance of wit-
nesses and the production of books, papers and
documents as are conferred upon the County Board
af Tax Assessors within the provisions of Section
1116(12) and to enforce obedience to the same by
citation before the ordinary of the county in the
same manner as is therein provided. The session
:>f said arbitrators shall be limited to three days
and they shall meet and render their decision with-
in twenty days from the date of the selection or ap-
pointment of the third arbitrator or otherwise the
decision of the State Tax Commissioner in the
matter, shall stand affirmed and be final. The
decision of the arbitrators when made, shall be
final, and upon the rendering of their decision or
jpon their failure to make a decision within the
time herein limited it shall be the duty of the
County Board of Tax Assessors to immediately
*evise and correct the county valuations in the
manner hereinbefore in this section contemplated
ind provided. The revised and corrected prop-
erty valuation as thus made, shall be the fixed and
legal valuations of property for the payment of
taxes and it shall be the duty of the tax payer to
pay his taxes thereon accordingly. The com-
pensation of said arbitrators shall be seven dollars
per day for the time they are actually in session,
and they shall be allowed mileage at the rate of
five cents per mile for the distance traveled in go-
ing from and returning to their homes by the
nearest practicable route. The compensation and
mileage of said arbitrators shall be paid one-half
by the county and one-half by the State.
Before entering upon a hearing, the said arbi-
trators shall take before the ordinary of the
county the same oath as is provided by Section
1116(11), to be taken in cases of arbitrations of
the findings of County Boards of Tax Assessors.
Acts 1913, pp. 123, 131.
§ 1116(22). Annual visit to each county by
commissioner; expenses, how paid. — It shall be
the duty of the State Tax Commissioner to visit
annually, the several counties of the State for the
purpose of familiarizing himself with the character
and values of the several classes of taxable prop-
erty therein, of investigating the works, and
methods adopted by the Boards of County Tax
Assessors and to ascertain wherein existing laws
are defective or are improper^ or negligently ad-
ministered and to report the results of his investi-
gation and the facts ascertained to the Governor
through the Comptroller-General from time to
time when required by him. The actual expenses
of said commissioner incurred in complying with
the requirements of this section shall be paid by
the State Treasury from funds not otherwise ap-
propriated. Acts 1913, pp. 123, 133.
ARTICLE 3.
List of Insolvents and Defaulters.
SECTION l.
Insolvent Lists.
§ 1117. (§ 859.) When collectors to pay taxes in-
to treasury and present insolvent list. — The sev-
eral collectors must pay into the State treasury
the taxes of their respective counties by the twen-
tieth day of December of each year, and shall at
the same time present their insolvent list, dul\
certified to have been allowed them by the proper
authority. Act 1804, Cobb, 1049; Acts 1855-6, p.
136; 1857, p. 132.
§ 1118. (§ 860.) Insolvent list, by whom allowed.
— Insolvent lists of tax-collectors shall alone bt
allowed, by the ordinary, county judge, commis-
sioners of roads and revenues, or other tribunals
authorized by law, except grand juries, upon a re-
turn of the tax execution with entry of proper
legal officer of "no property." Acts 1878-9, p. 180.
As to deduction of insolvent list in netting the digest,
see §§ 1014, 1203.
§ 1119. (§ 861.) Lists, how allowed. — Said of-
ficial tribunals shall, if they have reason from any
cause to suspect the return of the returning offi-
cer to be incorrect in any particular, to cause such
fi. fa. to be sent out again for collection. But before
any officer named in this section shall allow any in-
solvent list, the officer in whose hands the tax
fi. fas. have been placed for collection shall make
oath that he has made every effort in his power
to collect the same, and that he verily believes the
taxpayers on said, list have no property out of
which the tax can 'be collected. Acts 1878-9.
p. 180.
§ 1120. (§ 862.) On what tax allowed. — The
proper tribunal in making out such list shall be re-
quired to state how much is allowed the collector
on account of the State tax, and how much is al-
lowed on the county tax; and furnish the comp-
troller-general an alphabetical list of the names or
insolvent taxpayers, the militia district in which
each resides, and the amount of each fi. fa. Acts
1861, p. 80; 1900, p. 42.
§ 1121. (§ 863.) Ordinary to retain copy of list,
constable to collect fi. fas. — When the collector
shall have his insolvent list credited, it shall be
the duty of the tribunal allowing it to retain a
copy of such list and direct the collector to issue
executions for the same, and place them in the
hands of some constable of the county for collec-
tion, who shall be entitled to the same fees as he is
entitled to for other executions, and two and one-
half per centum, and the balance shall be paid, by
the constable to the ordinary, whose duty it shall
be to transmit the same to the treasury. Acts
1857, p. 132; 1861, p. 80.
As to executions, see § 1156. As to levy and sale, see
§§ 1165, 1166.
§ 1122. (§ 864.) Dispositon of insolvent list. —
When such lists are allowed, they must be entered
on the minutes of the court, and the ordinary, or
other tribunal, must furnish the collector certified
copies thereof, stating in the certificates when and
by what trJbunal allowed.
[ 249
§ 1123.
DUTY OF COMPTROLLER AS TO DELINQUENT TAXPAYERS
§ 1134
§ 1123. (§ 865.) Comptroller to wait for insolv-
ent list, how long. — Whenever the comptroller-
general shall be satisfied that a tax-collector has
exercised d.ue diligence in his efforts to have
his insolvent list allowed within the time pre-
scribed by law, the said comptroller-general shall
(be authorized, if in his judgment the public interest
v/ill not suffer thereby, to wait with the collectors
fifteen and not exceeding thirty days for said in-
solvent list, before issuing fi. fa. for the same. Acts
1861, pp. 80, 81.
§ 1124. (§ 866.) When not.— They shall not, un-
der any circumstances, be allowed or credited
with such lists after executions are issued against
them for taxes, until they go to the comptroller-
general and settle fairly and fully with him. Act
1812, Cobb, 1059.
§ 1125. (§ 867.) When time shall be granted to
receivers and collectors. — The time by which di-
gests shall be completed and. the taxes paid does
not apply to receivers and collectors who have
not been in office long enough to make such com-
pliance, but in all such cases such officer must re-
spond to the requirements of the comptroller-gen-
eral. Act 1843, Colbb, 1074.
Sec § 1128.
§ 1126. (§ 868.) Newly elected receivers and col-
lectors.— Such officers are not liable for the pen-
alties fixed for those regularly elected, until the
time allowed by the comptroller-general has ex-
pired, unless they have been so long in office as
would have been sufficient for the regular officers.
§ 1127. (§ 869.) Collector to make a schedule of
defaulters. — It is the duty of the collector to ex-
amine the digest of the receiver, and if he knows
of any default not entered to make a schedule of
such in the same manner as done by the receiver,
and of any other that he may then or afterwards
learn, and of their property, and assess a double
tax in the same manner the receiver is allowed to
do, one copy of which shall be furnished to the
comptroller-general to add to the digest in his of-
fice, and another to the receiver, who shall like-
wise correct his digest. Acts 1857, p. 131.
Sufficient Compliance. — Where assessments were entered
upon a book denominated "Not On Digest," such entry is
a sufficient compliance with this section requiring that
officer to make a schedule of defaulters. Douglas v. Mc-
Curdy, 154 Ga. 814, 115 S. E. 658.
§ 1128. (§ 870.) Comptroller may allow further
time. — And in other cases where any unexpected
obstacles occur to completing the digest or paying
over the taxes within the time prescribed, it is in
the discretion of the comptroller-general to allow
further and sufficient time. Act 1843, Cobb, 1074.
SECTION 2.
Record of Tax Defaulters.
§ 1129. (§ 871.) Record of tax defaulters. — The
tax-collectors shall record in a book kept for the
purpose, in alphabetical order and by militia dis-
tricts, the names of all persons who have not paid
their taxes, placing opposite the name of such per-
son the amount he is due for such tax, said record
to be made in a well-bound book, to be furnished
at the expense of the county, and the record so re-
quired to be made shall be filed by the first day of
July of each year with the court or board of
commissioners having charge and control of the
county affairs. Acts 1884-5, p. 28.
§ 1130. (§ 872.) Tax collected after record, how
applied. — When any tax shall be collected after
said record is made, it shall be applied to oldest
tax demand against said person paying the same.
Acts 1884-5, p. 28.
§ 1131. (§ 873.) Pay of collector and forfeiture
of commission. — For the service in making said
record, the tax-collector shall have the sum of
five dollars for every hundred names so recorded
on said book, to be paid out of the county treas-
ury; and for his failure to discharge the duties
herein required of him such collector shall forfeit
one-fourth of his commissions. Acts 1884-5, p. 28,
ARTICLE 4.
Duty of Comptroller as to Delinquent Taxpayers.
§ 1132. (§ 874.) Defaulting corporations. — If any
corporation, company, person, agency, or institu-
tion, who are required to make their returns to the
comptroller-general, shall fail to return the taxable
property or specifics, or pay annually the taxes
for which they are liable to the State treasury, the
comptroller-general shall issue against them an
execution for the amount of taxes due, according
to law, together with the costs and penalties.
As to necessity of notice and hearing, see §§ 1056, 1058
and notes thereto.
Applicable to Incomplete Return — This section of the
code is applicable whether there was an entire failure to
make a return, or only an incomplete and partial return.
Georgia R. Co. v. Wright, 125 Ga. 589, 614, 54 S. E. 52; S.
C, 124 Ga. 596, 53 S. E. 251.
Effect of Acceptance of Partial Return. — The acceptance
by the comptroller-general of a return from which taxable
property of the citizen has been omitted does not bar the
State of its right subsequently to proceed against the
delinquent for the tax due on the omitted property.
Georgia R. R. & B. Co. v. Wright, 124 Ga. 596, 53 S. 1$.
251.
When Comptroller May Issue Execution. — A statute
which imposes a specific tax, and requires payment to the
comptroller -general, virtually designates that officer to re-
ceive the return as well as the money; and in case of de-
fault to pay, whether a return has been made or not, he
may issue execution. Smith v. Goldsmith, 63 Ga. 737.
When New Return Necessary. — Where a railroad com-
pany has contested a tax, and is relieved of two thirds
thereof by the U. S. Supreme Court, a new return should
have been made, and upon failure to do so the comptroller
was authorized to make the assessment from the best in-
formation he could procure. State v. Southwestern Railroad,
70 Ga. 11.
§ 1133. (§ 875.) Forfeiture of charter of delin-
quent corporations. — The penalty against all such
corporations shall be the forfeiture of their chart-
ers, and if not chartered (by this State, then the im-
mediate suspension of their business therein.
§ 1134. (§ 876.) Penalty, where there is no
special provision. — The penalty or default tax on
banks, railroads, and other corporations, where
there is no special provision, shall be three times
the amount of their lawful tax.
When Penalty Not Enforced. — Where a corporation has
acted in good faith, has offered to do equity, was misled
by the officer of the state, and has not lost its rights by
/its own laches, there is not a case to warrant the en-
forcement of penalties for default. Wright v. South-
western R. Co., 64 Ga. 783.
[250]
§ 1135
TAX FI. FAS, AND SALES
§ H43
§ 1135. (§ 877.) Foreign insurance companies,
penalty. — The penalty or default tax on foreign
insurance companies shall be five hundred dol-
lars; on foreign bank agencies, two thousand, dol-
lars; on express companies, ten thousand dollars.
§ 1136. (§ 879.) When there is no return.—
When there is no return by which to assess the
tax, the comptroller-general shall, from the best
Information he can procure, assess in his discre-
tion.
As to necessity for notice and hearing, see §§ 1056, 105S,
and notes thereto.
§ 1137. (§ 880.) Executions issued against cor-
sorations; how directed. — The executions issued
)y the comptroller-general against any company
shall be directed to all and singular the sheriffs and
)ther lawful officers of this State, with directions
:o levy the same on the property of the corpora-
ion or company, with power to issue and serve
garnishments upon the debtors of the corporation.
As to execution in general, see 10 Cum. Dig. 830, 12 EJnc.
Pig. 124.
§ 1138. (§ 881.) Executions against agents, etc.
—The executions against agents of foreign insti-
utions as aforesaid shall be against the principal
.gent or his successor, and shall authorize the of-
icer to levy on all the property of the agency, to
eize its money, riotes, or other effects.
See § 1112.
§ 1139. (§ 882.) Money collected on fi. fa. —
/Vnen an officer collects money on such process,
>r on any other issued by the comptroller-general,
le shall, without delay, remit the same to him by
ome safe and speedy method, and on failure to do
o, is liable as he would be to other plaintiffs.
Money Can Not Be Diverted. — -Money raised by the
heriff, under an execution issued by the comptroller
general against a delinquent tax collector, can not be di-
rerted, by judicial interference, from the payment of such
xecution. The sheriff can not be required by rule to
>ay the money to the plaintiff in a judgment older than
he comproller's process. His duty is to remit to the
omptroller without delay. Goldsmith v. Kemp, 58 Ga.
06.
ARTICLE 5.
Tax Fi. Fas. and Sales.
SECTION l.
Lien of Tax Fi. Fas.
§ 1140. (§ 883.) Taxes to be first paid.— Taxes
hall (be paid before any other debt, lien, or claim
/hatsoever, and the property returned or held at
he time of giving in, or after, is always subject,
vet 1804, Cobb, 1050.
See §§ 3333, 3329.
See generally, 10 Cum. Dig. 809, 12 E)nc Dig. 109.
In General.— Taxes are not only against the owner, but
re against the property also, without reference to judg-
lents, mortgages, sales, transfers or incumbrances. The
nly concern as to the owner is to know against whom the
ssessment is to be made; but the tax and the lien therefor
5 against the property. Wilson v. Boyd, 84 Ga. 34, 10 S.
C 499; Verdery v. Dotterer, 69 Ga. 194.
When Lien Takes Effect. — The lien for taxes takes ef-
ect when, by law, in each and every year the property
5 made taxable, and not with the return of the property
■r the issuance of the execution. Wilson v. Boyd, 84 Ga.
6, 10 S. E. 499.
Personalty Not Necessarily First Subject — This section
hanges the rule that personalty is to be first applied to
[25
taxes. It is not necessary for an officer, before levying
on land for taxes, to make a return of no personal prop-
erty to be found. Watson v. Swann, 83 Ga. 198.
Effect of Failure to Return. — The failure of the owner
of property levied on to return it, furnishes no defense to
one who purchased from him after the lien for taxes ac-
crued. Winn v. Butts, 127 Ga. 384, 56 S. E. 406.
Possession of Other Property. — That the taxpayer was
in possession of other property on which the tax fi. fas.
could have been levied did not affect the State's lien
against the property in question. Compare Wilson \ .
Boyd, 84 Ga. 34 (1) (10 S. E- 499). Brown v. Roach, 31
Ga. App. 476, 477, 120 S. E. 813.
Officer Can Not Waive State's Right.— "It is doubted
that any officer would have the authority, by such action,
to transfer the lien of the State for taxes to a specific
fund, and thus waive it as against the general property
of the taxpayer; and it is questioned further whether the
failure of the sheriff to obey such demand, if made by
some other officer, could have the effect of relegating the
State to a rule or other action against him for a neglect
of duty." Brown v. Roach, 31 Ga. App. 476, 478, 120 S. K.
813.
Taxes Due United States. — Under Bankruptcy Act, § 64a
(Comp. St. § 9648), providing that taxes due to the
United States, state, county, district, or municipality
shall be paid before dividends to creditors, and under this
section, making all taxes prior liens, taxes due to the '
United States have no priority over other taxes due un-
der § 64a. In re Wyley Co., 292 Fed. 900.
§ 1141. (§ 884.) Lien of tax not divested by ju-
dicial sale. — A sale of property under any other
process does not divest the lien of the State for
taxes.
See, generally, 10 Cum. Dig. 810, 12 Enc. Dig. 109.
Lands of Decedent. — Where taxes have accrued upon
lands belonging to the estate of an intestate while in the
hands of his administrator to be administered, and by
proper order of the court of ordinary he sells the lands,
the tax lien thereon is divested and transferred to the
fund realized from the sale. This fund should be distrih
uted according to the priorities established by the code.
Herrington v. Tolbert, 110 Ga. 528, 35 S. E. 687.
Municipal Taxes.— By analogy to the rule of this sec-
tion, sale under common law execution does not divest the
lien of a municipality for taxes. La Grange Grocery Co
v. La Grange, 31 Ga. App. 97, 119 S. E. 536.
Property in Hands of Receivers. — Although a sale of
property under legal process will not divest the State of
its lien for taxes nor a municipality of its lien for taxes,
it is the duty of a court of equity to direct its receiver to
pay the taxes accruing on the property of an insolvent
corporation while in the hands of the receiver, upon a
timely application for that purpose made by the purchaser
of such property at the receiver's sale. Empire Cotton
Oil Co. v. Park, 147 Ga. 618, 95 S. E. 216.
Sale by Assignee of Bankrupt. — A sale of the land by
the assignee of a bankrupt does not divest the lien of the
State upon the land for taxes due on it, even though sold
by the assignee, free of encumbrance. Stokes v. Georgia,
46 Ga. 412.
§ 1142. (§ 885.) Conveyances and judgments to
avoid payment of taxes, void. — All deeds of gift,
mortgages, sales and assignments of property of
any kind, made to avoid payment of taxes, or judg-
ments procured to be rendered for the same pur-
pose, are null and void. Act 1804, Cobb. 1050.
§ 1143. (§ 886.) Donee, etc., property liable.—
The person holding such property, or to whom
such conveyance may be made, is liable for such
taxes, and the property also, whenever found, no
matter in whose possession it may be. Act 1804,
Cobb. 1050.
Sale of Mortgaged Property.— Where mortgaged prop-
erty was sold under a tax fi. fa. the mortgage lien is di-
vested. Since the mortgagee was liable for the taxes on
default of the mortgagor, he is bound by the sale. Ver-
dery v. Dotterer, 69 Ga. 198. This case does not mention
Doane v. Chittenden, 25 Ga. 103. Ed. Xote.
Same — Excessive Levy. — The owner of a city lot mort-
gaged it in 1855; in September, 1856, a tax execution is is
sued to collect the tax due by the mortgagor, for 1856,
and not only the equity of redemption, but the whole
1]
§ 1144
TRANSFER OF TAX FI. FAS.
§ 1145
property, worth six or seven thousand dollars, is sold for
less than one hundred. The lien of the mortgage is not di-
vested by the sale. Doane v. Chittenden & Co., 25 Ga.
103.
Execution May Be in Name of Original Owner.— An
execution issued by the tax collector for the unpaid taxes
against the land, which has not been returned by any
one, describing it as the property of the persons who last
returned it, is valid against the land, although such per-
sons may no longer be the owners of it, and may not have
owned it at the time the law fixes the liability for taxes.
Stokes v. Georgia, 46 Ga. 412
SECTION 2.
Interest on Tax Fi. Fas.
§ 1144. (§ 887.) Tax fi. fas. bear interest. — All
executions issued for taxes due the State or any
county thereof, or any municipal corporation
therein, whether issued on assessments for per-
manent improvements of streets or sewers of said
municipal corporation, or otherwise, shall ibear in-
terest at the rate of seven per cent, per annum
from the time fixed by law for issuing the same:
Provided, that this section shall not apply to taxes
or tax fi. fas. issued by any municipal corporation
imposing penalties for failure to pay taxes. Acts
1889, p. 31.
As to interest on transferred fi. fas., see § 1146.
Execution Bears Interest; Taxes Do Not. — 'This sec-
tion of the code, properly construed, does not declare that
taxes shall bear interest, but that only an execution for
taxes shall bear interest." McWilliams v. Jacobs, 128 Ga.
375, 378, 57 S. E- 509; Georgia R. Co. v. Wright, 125 Ga.
589, 610, 54 S. E- 52.
Taxes are not debts in the ordinary sense of that term,
and the assessment of taxes does not create a debt upon
which a promise to pay interest can be implied. Taxes
never bear interest. State v. Southwestern Railroad, 70
Ga. 11, 32, 35.
Interest Not a Penalty. — Interest under this section is
not in the nature of a penalty. Sparks v. Lowndes County,
98 Ga. 284, 25 S. E. 426. See also, Georgia R. R. & B.
Co. v. Wright, 124 Ga. 596, 618, 53 S. E. 251.
Execution on Municipal Assessments. — This section is
applicable to executions issued on assessments by munici-
pal corporations for improvements. Bacon v. Savannah,
105 Ga. 62.
When Interest Begins to Run. — Whenever the execu-
tion is issued, no matter at what time, provided it is is-
sued within the time authorized by law, it bears interest
from the time it might have been issued in the first in-
stance. Georgia R. Co. v. Wright, 125 Ga. 589, 611, 54
S. E. 52; Georgia R. R. & B. Co. v. Wright, 124 Ga. 596, 53
S. E. 251.
Effect of Tender. — If a taxpayer tenders the amount of
taxes due from him before an execution is actually is-
sued, no interest on the tax can be lawfully required of
him. Georgia R. Co. v. Wright, 125 Ga. 589, 610, 54 S.
E. 52.
No Interest Where Penalty Imposed. — Execution issued
for taxes due a municipal corporation do not bear interest
where the municipal corporation imposes a penalty for
failure to pay the taxes. Bernhart v. Fitzgerald, 137 Ga.
366, 73 S. E. 583.
Property in Hands of Receiver. — Under this section exec-
utions against railroad companies bear interest, even as
to taxes accruing while the property is in the hands of a
receiver. Sparks v. Lowndes County, 98 Ga. 284, 25 S.
E. 426.
Effect of Injunction. — If a taxpayer causes an injunction
to issue to prevent the collection of a tax, and, under the
final decree, liability for the tax is established, the tax-
payer is not relieved from interest on the tax execution
pending the proceedings in which he obtained the injunc-
tion. Georgia R. Co. v. Wright, 125 Ga. 589, 611, 54 S.
E. 52.
When a taxpayer is enjoined from returning given prop-
erty for taxation and from paying taxes on the same, and
the tax officer is also enjoined from levying and collecting
any taxes upon such property, at the instance of a third
party, the taxpayer is not relieved from the payment of
interest on the tax execution subsequently issued, when
it appears that the taxpayer was a mere complacent de-
fendant, interposing no obstacle to the injunction, in no
way seeking to obtain permission of the court to pay any
amount as admitted to be due as taxes, and, so far as the
record discloses, acquiescing in the contention of the plain-
tiff that no tax is due thereon. Georgia R. Co. v. Wright,
125 Ga. 589, 54 S. E. 52.
SECTION 3.
Transfer of Tax Fi. Fas.
§ 1145. (■§ 888.) Transfer of tax fi. fas.— When-
ever any person, other than the person against
whom the same has issued, shall pay any execu-
tion issued for State, county, or municipal taxes,
or any other execution issued, without the judg-
ment of a court, under any law, the officers whose
duty it is to enforce said execution shall, upon the
request of the party paying the same, transfer said
execution to said party; and said transferee shall
have the same rights as to enforcing said execu-
tion and priority of payment as might have been
exercised or claimed before said transfer: Pro-
vided., said transferee shall have said execution en-
tered on the general execution-docket of the su-
perior court of the county in which the same was
issued and if the person against whom the
same was issued resides in a different county,
then also in the county of such person's
residence, within thirty days from said trans-
fer. And in default thereof such executions shall
lose their lien upon any property which has been
transferred bona fide and for a valuable considera-
tion before the record and without notice of the
existence of such execution. Acts 1894, pp. 37," 38;
1872, p. 35; 1875, p. 119.
Sec. 10 Cum. Dig. 821, 836; 12 Enc. Dig. 130; 11 Enc.
Dig. 103.
As to power of tax collector to transfer, see § 1225.
By Whom Transferred — Collector. — Except in a county
having a population of 75,000 or more, the tax-collector has
no authority to transfer executions for taxes due the State
and county. This authority is given to the sheriff or other
officer authorized by law to levy tax-executions. County
of Laurens v. Citizens Bank, 9 Ga. App. 662, 72 S. E- 67.
But note that the minimum population is now 125,000 §
1225 having been amended. Ed. Note.
"Executions are enforced by levy, and it would seem
that the officer upon whom the duty devolved of enforc-
ing an execution would be the officer who is authorized
and required to levy the same. As a general rule, the
tax-collector has no authority to levy a tax execution. The
exception is in counties which contain a population of 75,000
(now 125,000) or more." Hill v. Georgia State Building &
Loan Asso., 120 Ga. 472, 473, 47 S. E. 897. See also,
Thompson v. Adams, 157 Ga. 42, 120 S. E. 529.
Where a transfer of a tax fi. fa. by a collector illegal
and void, under § 1225, it is properly excluded from evi-
dence. Cook v. Powell, 160 Ga. 831, 129 S. E. 546.
Same — Comptroller General. — The comptroller- general is
not authorized by law to transfer tax fi. fas. issued by him
against wild lands on payment of the amount due thereon.
Johnson v. Christie, 64 Ga. 118.
Necessity for Payment in Full. — Unless an execution for
taxes is paid in full, including principal, interest, and
costs, no legal transfer can be made, and the title to the
execution remains in the State and county. County of
Laurens v. Citizens Bank, 9 Ga. App. 662, 72 S. E. 67:
Wilson v. Herrington, 86 Ga. 777, 13 S. E- 129.
Rights of Transferee. — Under this section the transferee
of a tax fi. fa. stands in the shoes of the State, county, or
city by whose authority the tax fi. fa. was issued. He
has the same rights and priorities that the States, county,
or city would have had. Taxes, tinder our law, are the
highest lien. Ferris v. Van Ingen & Co., 110 Ga. 102,
119, 35 S. E- 347.
Where a mortgagee has paid off tax fi. fas., and the
property is in the hands of a receiver for distribution it is
not error to satisfy the fi. fas. out of the rent derived from
the property. Ferris v. Van Tngent Co., 110 Ga. 102, 35
[ 252 ]
§ 1146
TAX EXECUTIONS
§ U51
S. E. 347. See also, Stewart v. McDonald, 147 Ga. 158, 93
S. E. 86.
Execution Against Tax-Collector. — A transfer after pay-
ment of an execution against a tax-collector to the per-
son whose money was paid to the comptroller- general in
settlement of it, by the attorney representing the State
and the sheriff who had the execution to enforce, was
proper. The person taking the transfer, who was not one
of the defendants therein, could enforce the execution
against the property of one of the defendants, a surety of
the tax-collector. Fuller v. Dowell, 85 Ga. 463, 11 S. E.
773.
Transfer Not Basis for Garnishment. — Where a tax-col-
lector, transferred to a private person, such transferee
:an not base upon it a garnishment proceeding against a
debtor of the defendant in execution. D.avis v. Milieu, 111
Ga. 451, 36 S. E. 803.
Recordation — Strict Compliance. — No execution, which is
embraced in this section of the code, can be transferred
except under and by virtue of this act, and therefore the
terms of the act must be strictly complied with. Clarke
I Douglass, 86 Ga. 125, 127, 12 S. E. 209, see 11 Euc Dig.
103; 10 Cum. Dig. 836.
"The main purpose and policy of the statute was to
protect purchasers and others who might become iu-
:erested after the date of the transfer; but then there is
policy in upholding registering as the legislature pre-
scribes for it to be done; and there is no reason that we
enow of why one who becomes a transferee under the law
mould not comply with it." National Bank v. Danforth,
k Ga. 55, 67, 7 S. E. 546.
Same — Insufficient Entry. — An entry not disclosing the
lames of the plaintiffs, but giving the transferee as plain-
:iff, and not indicating that the execution is for taxes, is
nsufficient to uphold the lien as against the defend-
ing National Bank v. Danforth, 80 Ga. 55, 7 S. E. 546.
Where an execution was improperly transferred by a
:ax-collector and recorded, the recordation is a nullity and
vill not serve as notice to third persons of a subsequent
/alid transfer. Thompson v. Adams, 157 Ga. 42, 120 S.
£. 529.
Same — As to Third Persons. — A tax fi. fa. transferred to
i person other than the defendant loses its lien as to third
)ersons, unless the transfer be recorded as prescribed by
he law in force at the time. Funkhouser v. Male, 110 Ga.
T66, 36 S. E. 57; Wilson v. Herrington, 86 Ga. 777, 13 S.
5. 129; National Bank v. Danforth, 80 Ga. 55, 7 S. E. 546.
Same — Same — Not Innocent Purchasers for Value. — Where
t appears that the defendants are grantees in "certain
iecurity deeds" executed by the defendant in fi. fas., and
tre not innocent purchasers for value, as contemplated by
his section, the land is subject to the tax fi. fa. Thomp-
■on v. Adams, 157 Ga. 42. 120 S. E. 529.
Same — As to Defendant. — Though the execution was not
mtered on the docket in the office of the clerk of the
iuperior court within thirty days, it did not thereby lose
ts lien as against the defendant. Fuller v. Dowdell, 85 Ga.
-63, 11 S. E. 773.
Where a tax fi. fa. was properly issued, transferred, and
ecorded a year and seven months after the tax was due,
nere delay for such period of time in properly transferring
tnd recording the fi. fa. would not render it invalid in the
lands of the transferee, and incapable of enforcement
igainst the defendant in fi. fa.; and in such case the trans-
eree shall lose his or her lien only upon any property
vhich has been transferred bona fide and for a valuable
onsideration before the record and without notice of the
:xistence of such execution. Thompson v. Adams, 157 Ga.
\2, 120 S. E. 529.
§ 1146. (§ 889.) Interest on transferred tax fi.
as. — All tax fi. fas. transferred to third parties
hall bear interest, at the lawful rate, from date of
ransfer: Provided, the same have been recorded
.s prescribed, by law. Acts 1887, p. 21.
This section must be construed in connection with §
144. Palmer v. Phinizy, 151 Ga. 589, 109 S. E. 852.
SECTION 4.
Dormancy of Tax Fi. Fas.
§ 1147. (§ 890.) Tax fi. fa. dormant, when.— All
State, county, city, or other tax fi. fas., before or
ifter legal transfer and record, shall be enforced
vithin seven years from the date of their issue; or
within seven years from the time of the last en-
try upon the tax fi. fa. by the officer authorized to
execute and return the same, if said entry is prop-
erly entered by said officer upon the execution-
docket and 'books in which said entries are now
required to be made in eases of entries on execu-
tions issued on judgments. Acts 1887, p. 23.
As to dormancy of judgments, see § 4355.
Where No Execution Issued.— This section and § 1148,
when construed together, provide a statute of limitation
against the right of the State and its subordinate public
corporations to enforce a lien for taxes. Such a lien is
barred not only by a failure to have the proper entries
made on the tax execution and recorded as required by
the act, but also by a failure to issue the tax execution
within seven years from the date that such execution may
be lawfully issued. The lien of the State or its subordi-
nate public corporations is to this extent placed, by the act
above referred to, fully under the operation of the
"dormant-judgment act." (§ 4355.) Georgia R. R. & B.
Co. v. Wright, 124 Ga. 596, 53 S. E- 251.
Suspension by Injunction.— The statute of limitations did
not run against the State during the time that the
comptroller-general was enjoined by the Federal court
from issuing any executions for taxes on the stock in dis-
pute. Georgia R. R. & B. Co. v. Wright. 124 Ga. 596. ^
S. E. 251.
§ 1148. (§ 891.) Laws as to judgments applicable
to tax fi. fas. — All laws in reference to a period of
limitation as to ordinary execution; for any pur-
pose, or to the length of time or circumstances
under which they lose their lien in whole or in
part, are made applicable to tax fi. fas.
See note to preceding section.
As to dormancy of judgments, see § 4355.
SECTION 5.
Alias Tax Fi. Fas.
§ 1149. (§ 892.) Alias tax fi. fas.— When any tax
execution which shall have been regularly issued
by the tax-collector of any county of this State, or
by the proper officer of an}- city, town, or village
in this State, shall be lost or destroyed, an alias
execution, in lieu of such original execution, may
issue upon the party having the right to control
such original execution filing with the ordinary of
the county in which it issued a statement
under oath of the loss or destruction of such origi-
nal. The ordinary shall indorse on the copy issued
in lieu of said original, the word "Alias." Acts
1882-3. p. 108; 1904. p. 55.
Not Intended to Furnish Evidence. — This section pro-
vides for the issuing of an alias tax fi. fa., in place of the
lost or destroyed original, for the purpose of enforcement
by levy and sale, at the instance of the party entitled to
control the original, and not for the purposes of being used
in evidence as an established copy of the original under
which a sale has been made. Carr v. Georgia Eoan <£-
Trust Co., 108 Ga. 757, 33 S. E. 190.
When a sheriff's sale has been made under an original
tax execution, an alias fi. fa. issued under this section
is not admissible in evidence, in lieu of the original, for
the purpose of supporting such sale. Carr v. Georgia
Loan & Trust Co., 108 Ga. 757, 33 S. E. 190.
§ 1150. (§ 893.) Force and effect of alias.— Said
alias execution shall have all the legal force and
effect of the lost or destroyed original execution.
Acts 1804, Cobb, 1059.
SECTION 6.
Tax Executions, When and By Whom Issued.
§ 1151. (§ 894.) Tax-collector's fi. fas., when and
how issued.
Executions for non-payment or
[253]
§ 1152
TAX FI. FAS., ON WHAT LEVIED
§ 1158
taxes, against persons who are not required to pay
to the treasurer, are issued by the tax-collectors of
their respective counties as soon as the last day
for payment has arrived, and must be directed to
all and singular the sheriffs and constables of this
State.
See, generally, 10 Cum. Dig. 830; 12 Enc. Dig. 124.
As to effect on sale of irregularities in issuance of exe-
cution, see notes to §§ 1165-1167.
Jurisdictional Facts Must Appear. — Since a tax execu-
tion is not founded upon the judgment of any court, but
is a purely summary process, it is essential to the validity
of such an execution that all the necessary jurisdictional
facts authorizing its issuance should appear upon its face.
Equitable Building, etc., Asso. v. State, 115 Ga. 746, 42 S.
E. 87.
It follows that a writing purporting to be such an exe-
cution, but which merely commands the levying officers
to whom it is directed to make of the property of a named
corporation a specified sum as "now due and owing to
said State and county for taxes, back taxes up to 1899, as
well as all lawful costs," is void. Equitable Building, etc.,
Asso. v. State, 115 Ga. 746, 42 S. E- 87.
Direction. — A tax execution which omitted the direction
to any particular officer or officers, but commanded a levy
to be made upon the property of the defendant, was irregu-
lar but not void, and could be amended by adding a di-
rection as provided by law. Winn v. Butts, 127 Ga. 385,
56 S. E. 406.
Where the executions are improperly directed "to any
lawful officer," yet were executed by the proper officer, the
levy and sale by him is not void because of the misdirec-
tion in the execution. Byars v. Curry, 75 Ga. 515, 518.
One Execution for State and County Taxes. — It is proper
to issue one fi. fa. for both state and county taxes. Citi-
zens Bank v. State, 151 Ga. 696, 699, 108 S. E. 161.
The authority of a constable under §§ 1151 and 1166 must
be construed with the limitations imposed by § 1165, which
expressly prohibits such officer from levying "a tax fi. fa.
when the principal amount exceeds one hundred dollars."
State v. Paschal, 27 Ga. App. 357, 108 S. E. 475.
One illegally conducting a stock exchange is not prop-
erly to be regarded as a tax defaulter against whom a
tax-collector has authority to issue an execution with a
view to compelling payment of the occupation tax upon
dealers in "futures." Tones v. Stewart, 117 Ga. 977, 44
S. E. 879.
Apolied to school tax. Georgia R. & B. Co. v. Hutchin-
son, 125 Ga. 762, 770, 54 S. E. 725.
§ 1152. Execution to issue against delinquents. —
In addition to the remedy heretofore given the
State for the collection of special occupation and
license taxes due the State by persons following
the occupation and failing and refusing to pay the
tax or license, as well as for any taxes that may
now be due the State as occupation or license tax,
it is the duty of the officer charged with the col-
lection of said tax or license, where the same is
due, to issue an execution against such delinquent
taxpayer for the amount of said occupation or li-
cense tax. Acts 1903, p. 17.
See note to preceding section.
§ 1153. Other remedies not repealed. — The
remedy here given the State does not repeal the
remedy heretofore given, but the right to prose-
cute criminally persons violating the laws by fail-
ing to ipay the tax and refusing to register shall
be cumulative to the remedy of issuing execution
against such delinquent taxpayer.
an entry to that effect on said execution; and such
tax-collector may then issue summons of garnish-
ment against any persons who he may believe is
indebted to the defendant, or who may have prop-
erty, money, or effects in his hands belonging to
the defendant; which said summons of garnish
ment shall be served by the tax-collector, the sher-
iff, his deputy, or any constable of the county in
which the garnishee may reside, at least fifteen
days before the sitting of the court to which the
same is made returnable, and returned to the su-
perior court of the county for which he is tax-
collector. Acts 1855-6, p. 137.
As to garnishment for city taxes, see § 876.
No Effect Out of State — Garnishment issued under this
section can not take effect on persons or property out of
the jurisdiction of the state at the time it was issued.
Western R. R. v. Thornton, 60 Ga. 300, 304.
No Garnishment on Transferred Execution. — Where a
tax execution has been, by the tax-collector, transferred
to a private person, such transferee can not base upon it
a garnishment proceeding against a debtor of the defend-
ant in execution. Davis v. Milieu, 111 Ga. 451, 36 S. E-
803.
§ 1155. (§ 896.) Proceedings thereon. — Said
tax-collector shall enter on said execution the
names of the persons garnished, and return said
execution to said superior court, and all the subse-
quent proceedings shall be the same as now pro-
vided by law in relation to garnishments in other
cases where judgment has been olbtained or exe-
cution issued. Acts 1855-6, p. 137.
See, as to garnishments in general, § 5265 et seq.
See also, 6 Cum. Dig. 580, 6 Enc. Dig. 718.
SECTION 7.
Garnishment on Tax Fi. Fas.
§ 1154. (§ 895.) Tax-collector may issue garnish-
ment.— When any tax-collector can find no prop-
erty of the defendant on which to levy any tax
SECTION 8.
Insolvent Tax Fi. Fas.
§ 1156. (§ 897.) Insolvent tax fi. fas, may be put
out. — The county authorities of any county in this
State shall place such tax executions as have been
returned insolvent, in the hands of the sheriff or
any constable of the county for collection, to be
levied, and sales thereunder made in accordance
with the regulations governing sales under execu-
tions issued from common-law judgments. Acts
1880-1, p. 45.
As to power of collections in counties having population
of 125,000, see § 1225. As to levy and sale, see §§ 1165,
1166.
§ 1157. Nulla bona entry, practicing after made.
— When a nulla bona entry has, by proper author-
ity, been entered upon an execution issued, by the
tax-collector of any county against any person for
a special tax, such person shall not then be al-
lowed or entitled to have or collect any fees or
charges whatever for his services rendered after
the entry of such nulla bona: Provided, however,
that if, at any time after the entry of nulla bona
has been made, said person whom said execution
issues against shall pay the tax in full with all in-
terest and costs accrued thereon, he shall then
(after such payment) be allowed and entitled to
collect any fees and charges due him, as though
he had never defaulted in the payment of the taxes.
Acts 1896, p. 37.
SECTION 9.
Tax Fi. Fas,, on What Levied.
§ 1158. (§ 898.) Defendants may point out
execution in his hands, it shall be his duty to make | property. — Defendants in fi. fas. issued by tax-col-
[254]
\ 1159
NO JUDICIAL INTERFERENCE
§ 1163
ectors for taxes shall have the privilege of point-
ng out the property upon which to levy said fi.
as., but it shall be within the discretion and
>ower of the collector to have the proper officer
evy the same on any Oither property he may point
>ut, whenever he deems it necessary to secure the
)rompt collection of the tax tfL fas.
As to pointing out property by defendant in judgment
i. fa., see § 6028.
Limitation on Power of Levying Officer.— The taxpayer,
jy this section of the Code, has the privilege of pointing
nit property upon which to levy the fi. fa.; but this is ad
:he restriction upon the officer's power to levy, in his dis-
:retion, upon any property whatsoever that may be sub-
ect; and even this privilege may be overruled by the
:ax collector, who has power to direct a levy on other
>roperty whenever he deems it necessary. Wilson v.
3oyd, 84 Ga. 34, 36, 10 S. E. 499.
Section 6028 does not apply to cases where tax execu-
ions are levied upon the property of the defendant in fi.
a., but this section applies in such cases. Davis v.
Moore, 154 Ga. 152, 113 S. E. 174.
Waiver and Estoppel by Pointing Out Property.— Where
i defendant in fi. fa. for taxes points out to the levy-
ng officer the property to be levied on, this will con-
stitute a waiver of defects in the return, and the levy,
pumpkin v. Cureton, 119 Ga. 64, 45 S. E- 729; National
Bank v. Danforth, 80 Ga. 55, 7 S. E. 546; Byars v. Curry,
r5 Ga. 515.
SECTION 10.
Claims, How Interposed.
§ 1159. (§ 899.) Claim may be interposed when
ax fi. fa. is levied. — When property is levied on
inder a tax fi. fa. issued either by the comptroller-
jeneral or tax-collector, it may be claimed by a
hird person and tried in the same manner as
)ther claims are, except that the claimant shall
jive a bond and security for the eventual condemna-
ion-money, and if found subject, such claimant
md his sureties shall be in all respects liable as on
ippeal bond. Act 1810, Cobb, 1056; Act 1840,
ZIobb, 1072.
See 12 Enc. Dig. 138.
The history of claims, and the distinction between those
.inder ordinary judgments and under tax fi. fas., discussed.
Lingo v. Harris, 73 Ga. 28.
Claim in Forma Pauperis. — A claim can not be inter-
posed in forma pauperis to property levied on under a tax
sxecution issued by a municipal corporation. Such claims
must be made under the provisions of this section of the
Code, and do not fall within § 5164. Ijngo v. Harris, 73
Ga. 28.
To What Court Returnable. — Where a fi. fa. issued by
a tax-collector for State and county taxes was levied by
i constable upon personal property and a claim was inter-
posed thereto, it was properly returned for trial to the
superior court of the county. Winn v. Butts, 127 Ga.
385, 56 S. E. 406.
Adequate Remedy; Injunction Unnecessary. — One upon
whose property an execution against another issued by a
tax-collector is levied may, under this section, interpose a
claim, and consequently has no need of an injunction to
prevent the threatened sale. Herrington v. Ashford, 157
Ga. 810, 122 S. E. 197; Racine Iron Co. v. McCommons, 111
Ga. 536, 36 S. E. 866.
The plaintiff, as owner of land levied on under execu-
tions for taxes assessed by the State, county, and city on
returns by another person, had an adequate and complete
remedy by claim, on the assumption that the property was
not subject to the levies, and he did not need an injunc-
tion to prevent sales thereunder. Herrington v. Ashford,
157 Ga. 810, 122 S. E. 197.
Available Under Drainage Laws. — Upon the levy of an
execution issued by authority of the drainage-district act
of 1918 [Ga. L. 1918, p. 147, § 2, this code § 439 (34)], the
remedy provided in this section, was available to a claim-
ant of the land levied on Campbell v. Board, 156 Ga. 64,
118 S. E. 720.
§ 1160. (§ 900.) Claim if fi. fa. against tax-col-
lector. — When any execution may be issued
\2
against any tax-collector or taxpayer for taxes
due the State, or any county thereof, and the sher-
iff or other officer shall levy the same on property
claimed by a person not a party to such execu-
tion, such claimant shall make oath provided in the
case of other claims, and give bond, and the same
proceedings shall be had thereon as provided for
the trial of the right of property, except that such
trials shall be had in the county wherein the levy
was made.
See note to §§ 1187-1189.
Execution Is for "Taxes." — The money collected by a
tax collector, and in his hands, for which an execution is-
sues against him, is recognized by this section of the Code
as "taxes due the state." Davis v. State, 60 Ga. 77, 78.
See also Perkins v. State, 101 Ga. 291, 293, 28 S. E- 840.
SECTION it.
Cost and Fees.
§ 1161. (§ 901.) Cost of collecting tax fi. fa.—
Whenever the sheriff or other officer of any county
shall collect any tax fi. fa. over one hundred dol-
lars, he shall be entitled to one dollar for costs;
and for collecting any tax fi. fa. of one hundred
dollars or under, fifty cents for costs. Acts 1880-1,
p. 83.
§ 1162. (§ 902.) Fee for issuing tax fi. fas.—
Tax-collectors shall be allowed a fee of fifty cents
for issuing tax fi. fas.; but no tax-collector, sher-
iff, or constable shall receive costs on said fi.
fas., unless the same be collected from the de-
fendant. Acts 1861, p. 80.
A sheriff is not entitled to costs on tax fi. fas., whether
for State or county taxes, unless the same be collected
from the defendants. Nor does the fact that the fi. fas. is-
sued illegally under order of the Inferior Court, alter the
rules. Keen v. Rouse, 44 Ga. 601.
SECTION 12.
No Judicial Interference.
§ 1163. (§ 903.) No judicial interference with
taxes. — No replevin shall lie, nor any judicial in-
terference be had, in any levy or distress for
taxes under the provisions of this Code, but the
party injured shall be left to his proper remedy
in any court of law having jurisdiction thereof.
Act 1840, Cobb, 1051.
See 10 Cum. Dig. 843; 12 Enc. Dig. 138.
As to interference where execution against collector, see
§ 1189.
Editor's Note. — Formerly there was only one provision
as to judicial interference, applicable, by virtue of the hold-
ing that an execution against a defaulting collector is an
execution for taxes, to fi. fas. against collectors as well as
taxpayers. A separate section (§ 1189) now covers the
former case. Some of the cases found in the note to this
section, decided before the division, are also properly ap-
plicable to § 1189, (See Scofield v. Perkerson, 46 Ga. 325)
and the same rules are generally applied to both sections.
Although some conflict appears in the cases certain
general rules have been repeatedly affirmed. No attempt
will be made to cite all the cases which apply these rules,
but reference must be had to the digests. See 12 Enc.
Dig. 138.
When There May Be Interference. — Tax execution may
be resisted in judicial proceedings in the following cases:
An unconstitutional exaction, because what is then called
a tax is no tax. Where the law does not impose the ta*
or authorize the execution, for the same reason. Where
the defendants did not occupy the official positions alleeed
in the execution. Mayo v. Renfroe, 66 Ga. 40S.
The prohibition applies only to taxes properly laid, and
not to taxes laid without authority of law.
oo ]
Vanover
§ 1164
LEVY AND SALE UNDER TAX FI. FAS.
§ 1166
Davis, 27 Ga. 354, 357. See also Atlanta v. Jacobs, 125 Ga.
524, 54 S. E. 534.
Where any ministerial officer of the state is attempting
to collect money out of a person, natural or artificial, un-
der the forms of law, but without any constitutional law
to authorize the process he uses and calls an execution for
taxes, it is the duty of the courts, on a proper case made,
to arrest the proceeding in some of the modes known to
the law, and to afford relief to the party complaining. Wright
v. Southwestern R. Co., 64 Ga. 783.
No Interference on Account of Irregularities. — Where
there is a valid law imposing tax for the state upon bank
stock, there will be no judicial interference in its collection
on account of informalities or irregularities in the return
or assessment. Decker v. McGowan, 59 Ga. 805; Georgia
Mutual Loan Asso. v. McGowan, 59 Ga. 811; Burke v.
Speer, 59 Ga. 353.
Proceeds of Tax Appropriated to Specific Object. — The
fact that the proceeds of a tax are appropriated to a
specific object or purpose does not authorize judicial in-
terference. Yancey v. New Manchester Mfg. Co., 33 Ga.
622, 624. See also Kenny v. Harwell, 42 Ga. 416.
Rule Not Applied in Favor of Collector. — A tax collector
who has settled his tax digest with the state and county,
may use the executions he has issued against delinquent
taxpayers to reimburse himself by collecting from them
their unpaid taxes, but he is not entitled to the immunity
from judicial interference which the law provides for the
state, and he can only collect such tax as is legally due.
White v. State, 51 Ga. 252.
Remedies Unavailable — Prohibition. — The writ of prohibi-
tion does not lie against a tax collector who is alleged to
be proceeding to levy an illegal tax. The parties com-
plaining must pay the tax, and then pursue their remedy
against the tax collector as an individual. Cody v. Len-
nard, 45 Ga. 86.
Same — Mandamus. — Mandamus will not lie as a remedy
to compel a sheriff to accept an affidavit of illegality filed
to an execution issued by the comptroller-general against
a tax-collector in default and his bondsmen for the reason
that the sheriff must make his return to court under this
section and the comptroller- general is not a court. Webb
v. Newsom, 138 Ga. 342, 75 S. E. 106.
Same — Illegality. — The progress of an execution issued by
the tax-collector in due form for State and county taxes
can not be properly resisted by interposing an affidavit of
illegality. Georgia Trading Co. v. Marion County, 114
Ga. 397, 40 S. E. 250.
An execution issued by the comptroller-general against
a tax-collector and his sureties, for money alleged in the
execution to have been collected by the tax-collector and
not accounted for, can not be arrested by an affidavit of
illegality. Perkins v. State, 101 Ga. 291, 28 S. E- 840.
SECTION 13.
Levy and Sale under Tax Fi. Fas.
§ 1164. (§ 904.) Purchase by one bound to
pay. — One who is bound to pay the tax on prop-
erty can not strengthen his title by purchasing at
a tax sale; such purchase will be treated as pay-
ment.
See 12 Enc. Dig. 146.
Editor's Note. — This section is a codification of the hold-
ing in Burns v. Lewis, 86 Ga. 591, 13 S. E- 123. In that
case the purchaser had been in possession of the land un-
der color of title. It would seem that the section applies
only to such cases, where the purchaser buys, merely to
strengthen an imperfect title (See Bourquin v. Bourquin,
120 Ga. 115), and not to a case of a bona fide purchase by
one having an interest in the property for the protection of
his interest. It is to be observed that this latter case is
within the section if construed broadly. (See § 1143).
In the case of Bank v. Athens Sav. Bank, 107 Ga. 246, 33
S. E- 34, the applicability of this rule is not clearly dis-
cussed although the point was involved and was raised by
the plaintiff. The facts were as follows: Defendant ac-
quired a security title giving bond for title. Plaintiff ac-
quired judgment against holder of bond. Property re-
turned for taxation by holder, execution issued, and prop-
erty bought in by defendant. Plaintiff then levied on property
and defendant filed claim. It was held that defendant
had acquired title subject only to redemption by holder of
bond for title, and that plaintiff's judgment lien was di-
vested.
Strictly speaking, defendant could have been held liable
for the taxes, as he did improve his title by the purchase
acquiring a complete title where formerly he had only se-
curity title. However, the decision seems sound if the
section be applied in the light of the case from which it
was codified.
§ 1165. (§ 905.) By whom levied, and sales
under. — Executions may be levied by either of
the officers to whom directed, or other officer
who by law may be authorized in their place;
but a constable can not levy a tax fi. fa. whec
the principal amount exceeds one hundred dol-
lars, and if a tax fi. fa. for less than one hun-
dred dollars be levied by a sheriff, his fee for
said lev3r shall be that now allowed constables,
and if the levy be made upon personalty, the
same shall be advertised and sold as is now pro-
vided for justice-court fi. fas. If the constable
levies on land, it must be returned to and sold
by the sheriff of the county. Acts 1876, p. 30.
Cross References.— See notes to §§ 1151, 1166, 1167.
As to who authorized to levy, see §§ 1121, 1156, 1225.
As to levy in general, see 10 Cum. Dig. 838; 12 Enc.
Dig. 132.
Effect of Misdirection. — Where the executions are im-
properly directed "to any lawful officer to execute and re-
turn," yet were executed by the proper officer, the levy
and sale by him is not void because of the misdirection in
the execution. Byars v. Curry, 75 Ga. 515, 518.
May Levy on Realty Without Return of "No Person-
alty."— In order for a constable to make a legal levy upon
land under a fi. fa. issued for State and county taxes, it
is not necessary that he should make an entry or return
of no personal property to be found. Watson v. Swann,
83 Ga. 198, 9 S. E. 612. See also Smith v. Jones, 40 Ga.
39; Plant v. Eichberg, 65 Ga. 64. See 12 Enc. Dig. 134.
Return Should Show What Officer Levied. — A tax fi. fa.
which has been levied should show by whom it was levied
in order to be used in evidence to support a sheriff's deed
thereunder. Jones v. Easley, 53 Ga. 454.
The authority of a constable under §§ 1151 and 1166 must
be construed with the limitations imposed by this section,
which expressly prohibits such officer from levying "a tax
fi. fa. when the principal amount exceeds one hundred dol-
lars." State v. Paschal, 27 Ga. App. 357, 108 S. E. 475.
Land Previously Sold Under General Fi. Fa. — It is not a
fraud for the sheriff to sell for taxes, upon due levy and
return to him by a constable, the same land which he had
previously sold under a ' general fi. fa. against the same
defendant; nor is it a fraud for anyone to purchase at the
tax sale though having full notice of the prior sale. Wil-
son v. Boyd, 84 Ga. 34, 10 S. E. 499. See § 1141.
Purchaser Not Affected by Fraud of Officer. — A pur-
chaser at a tax sale duly made under a legal levy, who is
neither implicated in nor aware of any fraud contemplated
by the selling officer, is not affected thereby. Boyd v.
Wilson, 86 Ga. 379, 12 S. E. 744.
§ 1166. (§ 9061) Duties of tax-collector and
levying officer. — The tax-collector may place
his fi. fas. in the hands of any one constable of
the county, who shall be authorized to collect
or levy the same in any part of the county, and
it shall be the duty of the constable or con-
stables, or other levying officer to whom the
tax-collector may deliver said tax fi. fas. for col-
lection, to proceed promptly to enforce by levy
and sale the collection of the same, and said
levying or ' collecting officer shall make prompt
settlements with the tax-collectors, and in no
event shall he be allowed longer than ninety
days from the time the fi. fas. are placed in his
hands, within which to make final settlement
with the collector and return to him the tax col-
lected and the uncollected fi. fas. with proper
entries thereon. Any constable or other levy-
ing officer who shall fail or refuse to make such
final return or settlement within the time above
stated shall forfeit all costs that might be due
him on said fi. fas., and be subject to be ruled
before any court of competent jurisdiction and
[256]
§ 1167
LEVY AND SALE UNDER TAX FI. FAS.
§ 1167(2)
made to account as required by this section.
Acts 1899, p. 26.
Cross References. — See notes to §§ 1151, 1165, 1167.
As to levy in any county, see § 1174. As to levy, gen-
erally, see 10 Cum. Dig. 838; 12 Fmc. Dig. 132.
Extent of Constable's Authority. — "The constable is not
treated as the officer of a particular justice's court or
limited to making a levy within his district, but the tax-
collector may place the fi. fa. 'in the hands of any one
constable of the county, who shall be authorized to collect
or levy the same in any part of the county.' " Winn v.
Butts, 127 Ga. 385, 387, 56 S. F. 406.
Duty to Exhaust Smaller Parcels. — Before levy upon
property in a house and lot, indivisible and of great value,
to pay city taxes, the marshal of the city should exhaust
smaller and less valuable parcels assessed by the city at
more than enough to pay double the tax fi. fa. levied; but
if the. sale be postponed at the instance of, and assented to
by, the defendant in fi. fa. he can not attack the levy as
excessive. Jones .v. Johnson, 60 Ga. 261.
§ 1167. (§ 907.) Sales under tax fi. fas.— Sales
under tax fi. fas. shall be made under the same
rules governing judicial sales.
See notes to §§ 1165, 1166, 1151, 1176.
See, generally, 10 Cum. Dig. 843; 12 Fnc. Dig. 141.
Editor's Note. — No attempt is made to collect the various
cases in which the rule of this section has been applied to
different facts. These illustrative cases will be found by
reference to the Digests at the pages cited above.
To What Sales Applicable. — This section of the code ap-
plies as well to sales made under execution issued by the
comptroller- general as to sales made under execution is-
sued by the tax-collector of any county. Bedgood & Royal
v. McLain, 89 Ga. 793, 15 S. E. 670.
This section does not apply to sales by the marshal of
a town or city. Ansley v. Wilson, 50 Ga. 419.
Rule in Absence of Statute. — Prior to the adoption of the
Code, the utmost particularity was required in respect to
sales under executions for taxes, and the law had to be
complied with in every respect ; and such still is the case
as to sales under executions for municipal taxes. Byars v.
Curry, 75 Ga. 515.
Sale Under Tax Fi. Fa. and Judgment. — "Real estate when
sold under a tax fi. fa. being redeemable, and when sold
under a judgment being irredeemable, there is such in-
compatibility in these incidents that they can not com-
bine and both follow from a single sale made by one and
the same act, though sufficient authority for making a sale
of either class be in the officer's hands." Clower v. Flem-
ing, 81 Ga. 247, 251, 7 S. F. 278.
If, however, a sale is made under such circumstances it
will not be void, but will assume the characteristics of a
tax sale. Clower v. Fleming, 81 Ga. 247, 251, 7 S. E- 278.
§ 1167(1). Notice to security deed holder be-
fore sale. — Whenever any real estate is levied
upon for taxes by the Sheriff it shall be his duty,
before proceeding to advertise the same for sale
as now provided by law, to give twenty days
written notice of such levy to the owner of each
security deed and mortgage contained on the
list filed with him as hereinafter provided, the
said period of twenty days beginning to run
from the time the said notice is personally de-
livered or from the date of its mailing when de-
livered by registered mail as hereinafter pro-
vided. Such notice shall contain a description
of the land levied upon, the name of the owner
thereof, the year or years for which the taxes
were assessed and a statement of the amount
thereof with the accrued cost, and shall be de-
livered to such owner either personally or by
registered mail (with return receipt requested)
at the address given on said list. The Sheriff
shall keep a copy of said notice on which he
shall enter the date the same was delivered, how,
where and to whom, and shall file the same
with the list hereinafter provided. In order to
entitle any such owner of a security deed or
mortgage to this notice, a list of each security
deed and mortgage as to which such notice is
desired shall be filed by the owner thereof with
the Clerk of the Superior Court of the county
in which the land covered thereby lies on or be-
fore the twentieth day of December of each
year, whereon shall be shown not only the name
and address of such owner, but also the name
and post office address of each grantor or mort-
gagor and the book and page of the record where
each security deed and mortgage so listed is re-
corded. Such list shall be promptly entered of
record by said Clerk in a book to be kept by
him in his office for that purpose, for which
service the Clerk shall be paid a fee of fifteen
cents for each security deed or mortgage so
listed and entered by him in said book, except
that where ten or more security deeds or
mortgages shall be listed together on one list,
the fee of the Clerk shall be five cents each, for
the number in excess of ten. Within ten days
after the filing thereof, the Clerk shall transmit
the said list to the Sheriff of said county, and
the Sheriff shall file the same in his office as a
record thereof and shall enter on the execution
docket of his office the date said list was re-
ceived by him, together with the date the no-
tice to the owner of a security deed or mort-
gage as hereinbefore provided for was person-
ally delivered and on whom and where, or the
date when it was mailed, to whom and at what
address, when the delivery is by registered mail,
and in this latter event shall file the registered
return receipt with the said list as a record of
his office: Provided, that for the giving of this
notice the Sheriff shall receive when it is per-
sonally delivered the sum of $3.00 and when de-
livered by registered mail the sum of $1.25, the
same together with the fee of the Clerk of the
Superior Court as aforesaid to become a part
of the cost and paid by the owner of the secur-
ity deed or mortgage receiving the notice; Pro-
vided further, that the rights, interests, and se-
curity of any owner of a security deed or mort-
gage complying with the provisions hereof shall
in no wTise be affected by a tax sale and a deed
of conveyance made pursuant thereto unless the
provisions hereof are complied with, nor shall
anything herein contained in any wise whatso-
ever affect or abridge any right or remedy of
any owner of a security deed or mortgage now
provided by law who may fail or neglect for any
reason to file such list with the Clerk of the Su-
perior Court, or in any way change, alter or
limit the right or redemption under existing law
of property sold for taxes. Acts 1925, p. 252.
§ 1167(2). Form of notice.— The form of the
notice required herein to be given by the Sher-
iff to the owner of a security-deed or mortgage
complying with the provisions hereof shall in
substance be as follows:
DELINQUENT TAXES
Sheriff's Notice to Owner of Security-Deed or
Mortgage.
Notice is hereby given to as the
owner of a certain , recorded in the of-
fice of the Clerk of the Superior Court
in book at page of the County
of , State of Georgia, that there are now
due and unpaid taxes for the year
Ga. Code— 9
[257]
§ 1168
REDEMPTION OF PROPERTY SOLD FOR TAXES
§ 1169
amounting to $ with accrued cost of
$ for which a tax execution has been
issued and levy has been made upon the follow-
ing described land, owned by and em-
braced within said and that the same
will be advertised for sale unless the said taxes
are paid within twenty (20) days from the de-
livery hereof as provided by law.
DESCRIPTION OF LAND LEVIED UPON.
Sheriff.
Address.
Date
That the form of the list of security-deeds and
mortgages hereby required to be filed with the
Sheriff to entitle the owner thereof to the notice
herein provided as to delinquent taxes shall be in
substance as follows:
DELINQUENT TAXES
List of Security-Deeds and Mortgages.
To the Sheriff of County, State of Georgia:
The undersigned owner of the security-deeds
and mortgages listed below desires twenty(20)
days' written notice after levy by you on account
of delinquent taxes upon any of the land covered
by said security-deeds and mortgages, and to that
end hereby furnishes you the following list of the
name of each grantor or mortgagor therein, to-
gether with the book and page where the same is
recorded in the office of the clerk of the Superior
Court for the County and State aforesaid:
LIST OF SECURITY-DEEDS AND
MORTGAGES.
Name of Grantor
or Mortgagor
Kind of
Instrument
Book or
Record
Page
Record
Owner.
Address.
Date:
Acts 1925, p. 252..
SECTION 14.
Tax Execution in Rem and Sale Thereunder.
§ 1168, (§ 908.) Property not returned but
assessed, how disposed of. — When property is as-
sessed for taxes which has not been returned by
any one, as soon as assessed the tax-collector shall
at once issue an execution against it for the
amount due and costs, and the sheriff shall ad-
vertise it for sale in some public gazette ninety
days before the day of sale, and if by said day the
taxes are not paid, it shall be sold: Provided, rent-
ing or hiring will not bring the requisite amount.
Whatever overplus there may be shall be paid
over to the ordinary as a part of the educational
fund, with a statement of the property and account
of sales, subject to the claim of the true owner
within four years.
Cross References. — See § 1106.
See 12 Enc. Dig. 126.
As to disposition of surplus, where owner known, see
§ 1175.
Not Applicable Where Property Returned. — This section
is, by its express terms, not applicable to tax sales by a
sheriff, where the property is returned for taxes by the
defendant in execution, and where the fi. fa. is not against
the specific property levied upon, but against the whole
property of the defendant named therein. Lumpkin v.
Cureton, 119 Ga. 64, 45 S. E- 729.
Owner Must Be Unknown. — A tax-collector has no au-
thority of law to issue a tax execution against land in rem
if its owner is in possession thereof at the time when it
becomes the officer's duty, to make a return for him.
Norris v. Coley, 100 Ga. 547, 28 S. E- 222.
Same — Execution Should Show. — Under this section,
where the tax-collector seeks to sell land other than wild,
which is unreturned, the execution should not only show
that the same has been assessed for taxes, has been unre-
turned, but that the owner is unknown; for, in order to
authorize the issuance of an execution for the collection of
taxes in rem, it is necessary to show that the owner
thereof is unknown. Leonard v. Pilkinton, 99 Ga. 738, 742,
27 S. E. 753.
Land Misdescrihed as Wild. — As the tax-collector,
whether unreturned land be wild or improved, has power
to issue execution against it for taxes, it would seem that
a sale is not void because of a misdescription of the land
as wild when in fact it was improved. Gardner v. Donal-
son, 80 Ga. 71, 7 S. E. 163.
Provisions as to Hiring Do Not Apply to Wild Lands. —
The provisions of this section, which require that when
property which has not been returned for taxation is sold,
there shall be an offer to rent or hire the property before
the same is offered for sale, do not apply to sales of wild
lands. Barnes v. Carter, 114 Ga. 886, 40 S. E- 993.
Misapplication of Overplus. — It may be that the persons
having charge of the disbursement of the educational fund
might maintain an action against the ordinary for a mis-
application of the overplus, under this section, if not barred.
Summers v. Christian. 72 Ga. 193.
SECTION 15.
Redemption of Property Sold for Taxes.
§ 1169. Land sold may be redeemed. — Where
real estate has been sold under any State, city,
county, school (or) drainage assessment tax fi. fa.,
the same may be redeemed at any time within
twelve months after the sale by the defendant in tax
fi. fa., his guardian or trustee, heirs or personal rep-
resentatives, or by any tenant in common, re-
mainderman, or other persons having an interest
in such property, or by the holder of any mort-
gage, judgment, lien, or other interest in said
property, or by any creditor of the defendant in fi.
fa., by paying the purchaser the amount paid by
said purchaser for said land, with ten per cent,
premium thereon from the date of the purchase to
the time of payment. Acts 3 898, p. 85; Acts 1924,
p. 48.
Cross References.— See 10 Cum. Dig. 848; 12 Enc. Dig. 153.
As to redemption where property sold for city taxes, see
§ 880. As to redemption of wild lands, see § 1173. As to
redemption where land bought in by county, see § 1179.
Editor's Note The only change made in this section by
the amendment of 1924 (Acts 1924, p. 48) was the addition
of drainage taxes to the list of those to which it is ap-
plicable.
Who May Redeem. — A wife, who was a beneficiary of a
homestead estate sold under tax fi. fas. against the hus-
band, could redeem the property. Lamar v. Sheppard, 80
Ga. 25, 5 S. E. 247.
No construction, however liberal, which could be given
this section, granting the privilege of redeeming land sold
for taxes to the owner thereof, can enure to the benefit
of a party, if the owner be a corporation, and it a mere
[ 258
^ 1170
REDEMPTION OF PROPERTY SOLD FOR TAXES
§ 1173
stockholder therein. Carver Cotton Gin Co. v. Barrett, 00
Ga. 526, 530.
Applicable to Returned Wild Lands. — This section is ap-
plicable to wild land that is returned. Millen v. Howell,
Jl Ga. 653, 8 S. E- 316.
When Time Begins to Run Against Owner. — The year
'or redemption of property sold for taxes runs from the
late of the sale and not from the time when the sheriff's
ieed is recorded. Boyd v. Wilson, 86 Ga. 379, 12 S. E. 744.
May Redeem at Any Time Before Purchase Money Paid.
—Relatively to the right of the owner to redeem the land,
:he sale will not be considered as complete until payment
)f the purchase- money by the bidder, and the owner has
:welve months from the time of such payment within
vhich to tender the money to the purchaser for the purpose
)f redemption. Wood v. Henry, 107 Ga. 389, 33 S. E. 410.
See also Cason v. United Realty, etc., Co., 158 Ga. 585, 123
3. E. 894.
Right of Possession Pending Redemption. — During the
ime allowed for redemption, a purchaser's title is inchoate
md he has not the right to be put in possession of the
jroperty. Elrod v. Owensboro Wagon Co., 128 Ga. 361, 57
3. E. 712. See note to § 1173.
No Exception for Minors. — This section makes no ex-
:eption in favor of minors for redeeming property sold un-
ler a tax execution. Dawson v. Dawson, 106 Ga. 45, 48,
!2 S. E. 29.
Premium Must Be Tendered. — A tender of the amount
)f the purchase money at a tax sale without also tendering
;he premium will not accomplish redemption. Lamar v.
^heppard, 84 Ga. 561, 10 S. E. 1084.
Effect of Subsequent Executions. — It is not necessary for
hose seeking and entitled to redeem to tender the amount
>f tax fi. fas. issued subsequently to the sale. LaRoche
.-. Kinchlo, 154 Ga. 547, 114 S. E. 706.
Rights Concerning Rents. — Since rents accruing within
welve months after a tax sale may not be used to supple-
nent cash tendered- in redemption (Lamar v. Sheppard, 84
}a. 561, 10 S. E. 1084), and a purchaser at a tax sale is
lot entitled to rents, issues, and profits accruing be-
ween the time of his purchase and the redemption of the
jroperty (Jones v. Johnson, 60 Ga. 260), rent for the
)remises after the legal sale, not paid by the tenant pur-
;haser, was recoverable up to the time his deed became
ibsolute. Beckham v. Lindsey, 22 Ga. App. 174, 95 S. E.
'45.
Sale Under Tax Fi. Fa. and Judgment. — Though there
s incompatibility in selling land, at the same time and as
me and the same act, under a tax fi. fa. and a fi. fa.
ounded on the judgment of a court, yet the sale is not
/oid; the result is to annex to the sale as against both fi.
as. the statutory incident of redemption. The property is
edeemable by refunding the whole amount paid by the
jurchaser, with the statutory premium thereon, but not by
efunding a less amount measured by the taxes due, with
jremium on that much. Clower v. Fleming, 81 Ga. 247,
' S. E. 278.
Pleading. — The allegation that within one year after a
ax sale the plaintiff tendered to one who had taken title
inder the purchaser at the tax sale "the amount of the
mrchase-price of the property at the sale, plus ten per
:ent. interest thereon from date," was subject to special
lemurrer on the ground that it did not show the amount
)f the purchase-price or of the tender. Allen v. Gates, 145
5a. 652, 89 S. E. 821.
So also an allegation that as a matter of fact the tender
vas of almost double the amount of the purchase-price was
subject to special demurrer on the ground that it did not
show the amount of such tender. Allen v. Gates, 145 Ga.
552, 89 S. E. 821.
has been made by any creditor of the defendant or
person having any interest in the property, the
amount expended by such creditor or person in-
terested shall constitute a first lien thereon and be
repaid prior to claims upon the property, if the
quitclaim deed hereinafter provided for is
recorded as required by existing laws.
See 10 Cum. Dig. 850; 12 Enc. Dig. 156.
In General. — Where land is redeemed no better title is
acquired than the person redeeming had before, and if the
purchaser at the tax sale has an independent title, it is not
divested by the redemption. Elrod v. Owensboro Wagon
Co., 128 Ga. 361, 57 S. E. 712. See also Morrison v. White-
side, 116 Ga. 459, 42 S. E- 729.
Purchase by Trustee Treated as Redemption. — Where in
consequence of a trustee's breach of duty the estate is sold
for taxes, he can not, even after the expiration of the
redemption period, acquire a title from the purchaser at the
tax sale, good as against his cestui que trust. In equit\
the reconveyance will be treated as a correction of the
wrong, leaving the property impressed with the original
trust. Bourquin v. Bourquin, 120 Ga. 115, 47 S. E. 639.
And upon the revesting of the interest of the cestui que
trust, he may redeem the land when subsequently sold un-
der a tax execution. Bourquin v. Bourquin, 120 Ga. 115,
47 S. E. 639.
§ 1171. Redemption by creditor without a lien.
— If the property is redeemed by a creditor of the
defendant in fi. fa. who has no lien, such creditor
shall have a claim against the property for the
amount advanced by him in order to redeem the
same, in case there is thereafter any sale of the
property under a judgment in favor of such credi-
tor, and if the quitclaim deed is recorded as re-
quired by law.
§ 1172. Quitclaim deed by purchaser. — In all
cases where property is redeemed, the purchaser
at the tax sale shall make a quitclaim deed to the
defendant in fi. fa., reciting therein by whom the
redemption money has been paid, and in what
capacity, or under what claim of right or interest
the same was paid, which shall be prima facie
evidence of the facts stated.
It is no defense to a demand for a deed under this sec-
tion to answer that the purchaser has not yet had the sell-
ing officer make a deed to him. Elrod v. Owensboro Wa-
gon Co., 128 Ga. 361, 57 S. E. 712.
§ 1173. (§ 910.) How redeemed. — Whenever
any wild land is sold by virtue of a tax execution,
the owner thereof, or the executor, administrator,
guardian, or trustees of such owner shall have the
privilege of redeeming said land thus sold, within
two years from the date of such sale, by paying to
the purchaser the amount paid by such purchaser,
together with interest thereon at the rate of
twenty per cent, per annum. Upon the redemp-
tion as aforesaid by any owner of any lot of wild
An allegation that the person to whom the tender was jand ^ said owner/or his agent? shall receive
nade refused it and stated that it was unnecessary to
nake any further tender of any kind, as he would not
surrender the property save at the end of litigation, was
sufficient to show a waiver of further tender, but did not
supply the deficiencies in the allegations that there had
Deen an actual tender of amounts, alleged in an indefinite
way, the plaintiffs relying on actual tender as well as
waiver. Allen v. Gates, 145 Ga. 652, 89 S. E. 821.
A tender after the time allowed by law for redemption
inder a tax sale is without efficacy, and an allegation
:hereof should have been stricken on demurrer. Allen v.
Gates, 145 Ga. 652, 89 S. E. 821.
§ 1170. Effect of redemption. — When property
las been redeemed, the effect thereof shall be to
)ut the title conveyed by the tax sale back into
:he defendant in fi. fa., subject to all liens existing
it the time of the tax sale, and if the redemption
any surplus of money which may remain in the
hands of the sheriff, after deducting the taxes and
costs of such sale; and if said lot or lots are not
redeemed in the time mentioned, all surplus funds
arising from the sale of wild lands shall be paid
over, by the sheriff having possession of such
funds, to the State treasurer, with a list of the
lands for which said sums were derived. Acts
1880-1, p. 45.
See 10 Cum. Dig. 848; 12 Enc. Dig. 156.
Applicable Only to Unreturned Wild Lands.— This sec-
tion, applies only to unreturned wild lands; but when a lot
of wild land had been returned by the agent of the owner,
and the execution for taxes issued against such agent and
the land was sold under the execution, the owner has onlv
[ 259 ]
§ 1174
DELINQUENT TAX-RECEIVERS AND COLLECTORS
§ 1181
one year in which to redeem. Millen v. Howell, 81 Ga.
653, 8 S. E- 316.
Rights of Bona Fide Purchaser After Redemption. —
Where a lot of wild land was sold and the deed made to
the purchaser and placed upon record, but during the time
allowed for redemption the owner paid to the purchaser the
proper amount, and redeemed the land and received the
tax deed into his possession, but took no reconveyance, and
after the lapse of the redemption period the purchaser con-
veyed the land to a third person for value, the latter
would not acquire a title superior to that of the owner who
had in fact redeemed, although he bought without notice
that the redemption had taken place. Bennett v. Southern
Pine Co., 123 Ga. 618, 51 S. E- 654.
Title Pending Redemption. — While under the law of this
State, where property is sold for taxes, the officer mak-
ing the sale executes a deed to the purchaser before the
time for redemption has lapsed, yet the title acquired by
such purchaser is not a perfect fee -simple title, but an
inchoate or defeasible title, subject to the right of the
owner to redeem within the time prescribed by the stat-
ute. Bennett v. Southern Pine Co., 123 Ga. 618, 51 S. E-
654.
Agreement to Redeem after Limitation Period. — A court
of equity will not decree specific performance of a parol
contract whereby the purchaser at a tax sale agreed to let
the owner redeem after the period . of limitation. Etheridge
v. Woodard, 106 Ga. 251, 32 S. E- 122.
SECTION 16.
Tax Fi. Fas. Levied in any County.
§ 1174. (§ 911.) Tax fi. fas. run in any county.
— If there is not sufficient property in the county
where the taxpayer resides to satisfy the taxes,
property situated in any other county is the sub-
ject of levy and sale. Acts 1804, Cobb. 1050.
SECTION 17.
Surplus at Tax Sale; Tax Deeds.
§ 1175. (§ 912.) Excess, how paid.— If there is
any excess after paying taxes and all expenses, it
shall be immediately paid to the person authorized
to receive it.
See 12 Enc. Dig. 150.
As to surplus on sale of unreturned property, see § 1168.
Interest on Surplus. — Where a sheriff sells land as the
property of an unrepresented estate, for taxes, and, after
paymeat of the taxes and cost, a surplus remains in his
hands, and his term of office expires and he thereafter dies,
and a number of years ensue before there is any adminis-
tration upon the estate of the person whose property has
thus been sold, in a suit by the administrator upon such
estate upon the official bond of the sheriff, interest should
be counted from the date of the qualification of the ad-
ministrator. Morrison v. Slaton, 148 Ga. 294, 96 S. E. 422.
§ 1176. (§ 913.) Deed made at sale under tax
fi. fa. valid. — The deed or bill of sale made by such
officer shall be just as valid to the purchaser as if
made under the ordinary process of law issuing
from the superior court.
See notes to §§ 1165, 1166, 1167, 1151.
See 10 Cum. Dig. 847; 12 Enc. Dig. 151.
In General. — "Tax titles are protected by the code equally
with those depending on sales made under judgments of
the superior court." Boyd v. Wilson, 86 Ga. 379, 385, 12
S. E. 744. See 12 Enc. Dig. 151.
Sales for Municipal Taxes. — This section has no applica-
tion to deeds made by a municipal officer founded on sales
for municipal taxes. Johnson v. Phillips & Co., 89 Ga. 286,
15 S. E. 368; Ansley v. Wilson, 50 Ga. 419.
Effect of Recitals. — Under this section recitals in a deed
in regard to the conduct of the selling officer, and of the
levying officer, with respect to advertisements and the like,
are presumptively correct. Livingston v. Hudson, 85 Ga.
835, 12 S. E. 17; Bennett v. Southern Pine Co., 123 Ga.
618, 622, 51 S. E. 654. See 12 Enc. Dig. 152.
Use in Evidence. — This section does not give tax titles
a higher status than belongs to a deed made by the sheriff
under the judgment of a court, and such a deed, unsup-
ported by the execution on which it is based, is generally
not admissible in evidence. Sabattie v. Baggs, 55 Ga. 572,
573. See 12 Cum. Dig. 847; 12 Enc. Dig. 151.
SECTION 18.
Purchaser's Right to Possession.
§ 1177. (§ 914.) Officer to put purchaser in
possession of land. — The officer selling has the
authority to put purchasers in possession of land
sold, as in other cases.
No Right to Possession Pending Redemption. — The pur-
chaser of land at a tax sale is not entitled to be placed in
possession until after the. time for redemption has expired.
Elrod v. Groves, 116 Ga. 468, 42 S. E- 731.
SECTION 19.
Purchase by Counties at Tax Sales.
§ 1178. (§ 915.) Counties may buy property
sold under tax fi. fas. — The board of commis-
sioners of roads and revenues in counties where
such boards have been created, or the ordinaries or
the judges of the county court in such counties as
have such officers in control of their roads and re-
venues, are authorized to purchase and hold in
their official capacity any real property offered for
sale by virtue of tax fi. fas.: Provided, that said
commissioners, ordinaries, or judges shall only be
authorized to bid on such real property when other
bids do not cover the amount of said tax fi. fa. and
cost: And provided further, that said commis-
sioners, ordinaries, or judges shall not bid more
for such property than the amount of taxes and
cost. Said county authorities, upon bidding in any
property as herein provided, shall draw their
warrant on the county treasurer to pay to the
officers the costs due on said tax fi. fas., and ac-
cruing costs in effecting said sales. Acts 1892, p.
252.
§ 1179. (§ 916.) Right of redemption.— Owners
of real property sold under and by virtue of tax fi.
fas., and bid in by the board of commissioners of
roads and revenues, ordinaries or judges, as pro-
vided in the preceding section, shall have the
privilege of redeeming said real property as in
other cases.
See § 1169.
As to redemption of property sold for municipal taxes,
see § 880.
§ 1180. (§ 917.) If not redeemed, may be sold.
— Said board of commissioners of roads and rev-
enues, ordinaries, or judges of the county court
are authorized to dispose of said real property
purchased under said tax fi. fas., and remaining
unredeemed, as provided for in the Code.
CHAPTER 3.
Delinquent Tax-Receivers and Collectors.
ARTICLE 1.
Penalty for Incomplete, Improper, or Useless
Digest.
§ 1181. (§ 918.) Receivers failing to complete
digest. — If a tax-receiver fails to have his digest
completed and deposited by the first day of August
[260]
§ 1182
DEFAULTING RECEIVER, COLLECTOR AND SURETIES
§ 1189
in each year, unless excused by the terms of the
law or by the comptroller-general, he forfeits, for
every week's delay one tenth of his commissions;
and if the delay extends beyond thirty days, he
forfeits one half of his commissions; and if beyond
the time when the governor and comptroller fix
the rate per cent., he forfeits all his commissions.
See § 1116 (7) and note probable effect on this section.
§ 1182. (§ 919.) Failing to make a proper
digest.— If he fails to make out his digest in the
manner prescribed by law, or to comply with the
directions given him by the comptroller-general in
so doing, he forfeits one half his commissions.
§ 1183. (§ 920.) Making a useless digest. — If
such digest is made out so badly as not to answer
the purpose of the tax laws, he forfeits all his com-
missions, and must be removed from office by the
ordinary, on the request of the comptroller-general.
ARTICLE 2.
Execution Against Defaulting Receiver or Collec-
tor and Sureties.
§ 1184. (§ 921.) Becoming indebted to the
State, process to issue. — If he receives commis-
sions which he is not entitled to receive or retain,
or in any other manner becomes possessed of any
money belonging to the State, or incurs any liability
thereto, the comptroller-general is authorized to
issue execution or other legal process against him.
See § 1187.
Interest. — Where a tax receiver is paid by the county
authorities larger amounts than are due him and refuses to
pay back such excess, seven per cent interest should be
charged. Glynn County v. Dubberly, 148 Ga. 290, 96 S. E-
566; 22 Ga. App. 603, 96 S. E. 992.
Penalty. — There is no statute putting the tax- receiver on
the same basis as the tax-collector in this respect, nor do
the same reasons exist for exacting a penalty of twenty
per cent, as in case of defaulting tax-collectors. Glynn
County v. Dubberly, 148 Ga. 290, 96 S. E. 566; 22 Ga. App.
603, 96 S. E. 992.
§ 1185. (§ 922.) Making false return. — If a re-
ceiver makes a false return in either of his digests,
expressive of more than is returned, he shall for-
feit to the party aggrieved, in all cases, one hun-
dred dollars, and if the amount out of which such
party is defrauded by such return is more than one
hundred dollars, then ten dollars for every one
dollar over that amount, to be recovered by a qui
tarn action. Acts 1804 Cobb, 1025.
§ 1186. (§ 923.) Liable for receiving taxpayer.
— If by any device, intentionally, he causes the
taxpayer to pay more than his lawful tax, the pro-
visions of the preceding section apply.
§ 1187. (§ 924.) Comptroller to issue execu-
tions vs. collector and sureties on default. — If any
collector shall fail to settle his accounts with the
comptroller-general in terms of the law, he shall
issue execution against him and his sureties for the
principal amount, with interest at the rate of
twenty per cent, per annum on said amount: Pro-
vided, that if upon a final settlement it should ap-
pear that said collector was entitled to credits at
the time he is required by law to settle, the comp-
troller-general may allow the same, and charge
such interest only on the amount for which the
collector is in default, together with all the costs
and attorney's fees incurred by reason of the is-
suance of said execution. Act 1823, Cobb, 1025
Acts 1889, p. 52.
Cross References.— See S§ 1160, 1184, 1189, and notes.
See 10 Cum. Dig. 822; 12 Enc. Dig. 119.
As to liability of county treasurer, see § 585.
Editor's Note. — The question as to whether this secti in
violated the "due process" clause of the constitution seem.,
not to have been raised until a comparatively recent date.
In the case of Gaulden v. Wright, 14X3 Ga. 800, 79 S. 1"..
1125, it was held that the section was unconstitutional, in
view of § 1189 and the cases construing that section. The
collector was given no opportunity for a hearing. To
meet the objection raised by this holding an act was passed
in 1915 (Acts 1915, p. 55) giving the collector a right to
file an affidavit of illegality to the execution, [1191 (1),
1191 (2), 1191 (3)]. This act manifestly cures the uncon-
stitutionality, and at the same time, practically destroys
the effect of § 1189. Although the present law is not ex-
pressly held constitutional in McWhorter v. Chattooga
County, 154 Ga. 289, 114 S. E. 203, it is applied without
comment.
Not Applicable As Against Usurper. The comptroller
general is only authorized to issue executions against tax
collectors, and their securities, when in default. Where
the state, by its agent, procures the judgment of the court,
declaring one as usurper, exercising the duties of tlie
office of tax-collector without warrant or authority; then,
the Comptroller General, as its agent can not legally issue
an execution to collect for the state from him, as tax col-
lector, the amount of money alleged to have been received
by him as such usurper, and which he had already been
ordered by judgment to pay over to the clerk of the Super-
ior Court of his county. Hartley v. State, 3 Ga. 233, 23X.
Execution Issued by Commissioners of Roads and Rev-
enues.— This section is applicable where a fi. fa. is issued
by the commissioners of roads and revenues against the
tax-collector for moneys claimed to be due the county.
McWhorter v. Chattooga Countv, 154 Ga. 289, 291, 114 S.
E- 203.
Enforcible Against Exemptions. — The comptroller-general's
execution against a defaulting tax-collector and his sure-
ties, is an execution for taxes in the true intent and mean-
ing of the constitutions of 1868 and 1877, and may be en-
forced against personalty set apart and exempt from ordi-
nary judgments, executions and decrees, in possession of
the said collector or his sureties. Cahn v. Wright, 66 Ga.
119. See note to § 1160.
A homestead set apart under the provisions of the con-
stitution of 1868, for the family of a tax collector, is liable
for his default in paying over to the state taxes collected by
him. Davis v. State, 60 Ga. 77.
Subrogation of Surety. — When the comptroller-general is-
sued execution against a defaulting tax-collector and his
sureties, for money due the State for taxes collected and
not paid over, such sureties had the right to pay off said
execution, or the balance due thereon, and to control the
same as against the property of their principal, or prop
erty which he owned at the time of the execution of his
bond. Irby v. Livingston. 81 Ga. 281, 6 S. E. 591.
Liability of County Treasurer. — Under § 5S5, construed
with this section, a county treasurer is liable for the
twenty per cent penalty imposed by that section. Lamb
v. Dart, 108 Ga. 602, 34 S. E. 160.
§ 1188. (§ 925.) Fi. fas." against collectors.—
All executions and other process against collectors
and receivers must be directed to all and singular
the sheriffs of this State, and must be executed by
them, their lawful deputy, or other officer lawfully
in their stead.
Disability of Levying Officer. — Where one of the defend
ants in an execution is the sheriff of the county, he is a
party at interest, and can not levy the execution upon the
property of his co-surety and co-defendant. State v. Jeter,
60 Ga. 489.
The disability of the levying officer being apparent on
the face of the papers, the levy may be dismissed on mo-
tion of the claimant. State v. Jeter, 60 Ga. 489.
§ 1189. (§ 926.) Not to be suspended, etc. —
Executions so issued shall not be suspended or de-
layed by any judicial interference with them, but
the Governor may suspend collection not longer
[261]
§ 1190
COLLECTION PROHIBITED; VACATION OF COMMISSIONS
§ 1192
than the next meeting of the General Assembly.
Act 1840, Cobb, 1092.
See §§ 1163, 1184, 1187, and notes.
See 12 Enc. Dig. 138.
Editor's Note.— Under the earlier tax acts there was no
separate prohibition against judicial interference with exe-
cutions against collectors, but such executions were held
to be for "taxes clue the state," and the rule of § 1163 was
applied. Many of the cases in the note to that section are
applicable here, and vice versa.
By the Acts of 1915, p. 55, §§ 1191 (1) to 1191 (3), the
effect of this section is largely abrogated. As to the ef-
fect of that act see editor's note to § 1187.
Constitutionality. — The rule of this section, since it ex-
isted at the time of the adoption of the constitution, is not
a violation of the guarantee of the right to jury trial. The
constitution protects the right only as it existed at the date
of the adoption of the constitution. In this case the section
was applied to defaulting officers of the Western & At-
lantic Railroad, as was formerly provided by statute.
Scofield v. Perkerson, 46 Ga. 325.
The courts are prohibited from entertaining an affidavit
of illegality to an execution proceeding against a default-
ing tax collector and his sureties. The prohibition is con-
stitutional. Eve v. State, 21 Ga. 50. The ground on which
the constitutionality was questioned, was the failure to
separate legislative and judicial functions. Ed. Note.
When There Will Be Interference. — Tax executions may
be resisted in judicial proceedings in the following cases:
An unconstitutional exaction, because what is then called a
tax is no tax. Where the law does not impose the tax or
authorize the execution, for the same reason. Where the
defendants did not occupy the official positions alleged in
the execution. Mayo v. Renfroe, 66 Ga. 408.
Power of Judiciary. — The issuing of executions by the
Comptroller General, to collect the public revenue due to
the state, is the act of the executive department of the
government; and the courts have no power to prescribe
the kind or sufficiency of the evidence which shall be nec-
essary to authorize the process of execution to issue
against defaulting officers or agents, or to restrain that
department in pursuing this course. Scofield v. Perker-
son, 46 Ga. 350.
Affidavit of Illegality. — Mandamus will not lie as a
remedy to compel a sheriff to accept an affidavit of ille-
gality filed to an execution issued by the comptroller-
general against a tax-collector in default and his bonds-
men, and levied on the property of one of the alleged
bondsmen, who avers in his affidavit of illegality that he did
not sign the tax-collector's bond, or authorize any one else
to do so for him. In such case, . an equitable petition for
injunction is an available remedy when filed by a bonds-
man. Webb v. Newson; 138 Ga. 342, 75 S. E. 106. See
editor's note to § 1187, and see also § 1191 (1).
Suit on Bond No Ground For Interference. — The courts
will not entertain jurisdiction to enjoin an execution
against a defaulting agent of the Western & Atl. R. R.
on the ground that there is a suit pending, at the instance
of the State, against the defaulting agent and their securi-
ties on their bond, or on the ground that the amount for
which the agent is a defaulter, was fraudulently used and
embezzled by him. Scofield v. Perkerson, 46 Ga. 325.
Rule Against Sheriff Not Allowed. — Money raised by the
sheriff, under an execution issued by the comptroller
general against a delinquent tax collector, can not be di-
verted, by judicial interference, from the payment of such
execution. The sheriff can not be required by rule to pay
the money to the plaintiff in a judgment older than the
comptroller's process. His duty is to remit to the comp-
troller without delay. Goldsmith v. Kemp, 58 Ga. 106.
"Whenever a sheriff has money in his hands collected
from a defaulting tax-collector, it is his duty to pay it
over to the comptroller-general at once. There is no law-
ful authority for any person to give him notice to hold it
up until his claim to the fund can be passed upon by a
court." Wilson v. Wright, 83 Ga. 38, 44, 9 S. E. 834.
§ 1190. (§ 927.) Lien on property of principals
and sureties, bound.— The property of collectors,
and of their sureties, is bound, from the execution
of their bonds, for the payment of taxes collected
and the discharge of their duties. Acts 1917, p. 198.
See generally 10 Cum. Dig. 815, 12 Enc. Dig. 115.
Editor's Note.— By an amendment of 1917 (acts 1917, p.
198) the word "receivers" was taken from this section.
The amending act contained a proviso that it should not
apply to bonds of tax receivers in office at the time of the
passage of the act.
Subrogation of Sureties. — When the sureties for a de-
faulting tax collector paid off the execution against him
and took control of the same, they were subrogated to
the rights of the State, and became entitled to the same
lien that the State had on all the property of the principal
at the time he gave the bond. Irby v. Livingston, 81 Ga.
281, 6 S. E. 591.
Lien on Homestead. — The setting apart of a homestead
to the family of a tax collector out of his property in 1869
does not protect it from liability to an execution issued by
the comptroller general against the collector and his sure-
ties for a default which occurred in 1867. Brooks v. State,
54 Ga. 36.
Nor does the possession of the land by the family as a
homestead for four years before a levy is made, discharge
it from the lien created under the statute by the execu-
tion of the bond as tax collector. Brooks v. State, 54 Ga.
36.
§ 1191. (§ 928.) Proceedings in selling, etc.—
The proceedings in selling property under such
executions must be the same as under fi. fas. issued
from the superior court.
See § 6060.
§ 1191(1). Affidavit of illegality of execution
against tax collector and sureties; return and trial.
— Whenever the Comptroller-General shall issue
an execution against any defaulting tax collector
and the sureties on his official bond, as set forth in
Section 1187, the said tax collector or any surety
on his official bond shall have the right, at any
time after the issuance of said execution and before
a sale thereunder, to file an affidavit of illegality
against said execution, which said affidavit of
illegality shall state any matters of defense which
would be available in denial either of the alleged
default or the amount thereof as stated in said ex-
ecution, and which said affidavit of illegality shall
be returned to be tried in and disposed of by the
Superior Court of the county in which said tax
collector held office, in the same manner as pro-
vided by law for the trial and disposition of such
issues. Acts 1915, p. 55.
See notes to §§ 1187, 1189.
§ 1191(2). Right of fast bill of exceptions.—
Upon any final decision by the Superior Court. of
the issue made by such affidavit of illegality, either
party shall have the right of appeal to the Supreme
Court as now provided by law for hearings by
that court of fast bills of exception. Acts 1915, p.
55.
§ 1191(3). Damages for delay. — The provisions
of Section 5308, which relates to the allowance of
damages in cases where affidavits of illegality are
filed for purposes of delay only, shall extend to and
be applicable to the affidavits of illegal^ provided
herein. Acts 1915, p. 55.
ARTICLE 3.
Collection Prohibited, When, and Vacation of
Commissions.
§ 1192. (§ 929.) Collector not to collect till di-
gest filed. — If any collector shall collect, or at-
tempt to collect, any taxes before the receiver bas
completed and transmitted his digest to the comp-
troller-general, unless specially so ordered by such
officer, or allowed by special enactment, he forfeits
to the State double the amount so collected, or at-
[ 262 ]
§ 1193
TAX-RECEIVERS
§ 1198
tempted to be collected, to be recovered by execu-
tion issued by the comptroller-general.
§ 1193. (§ 930.) Governor may vacate the com-
missions, when. — The Governor may vacate the
commissions of defaulting tax-collectors, or of tax-
receivers failing or refusing to do their duty, give
bond, and take the oath required by law; and in
such event the vacancy shall be filled in the manner
prescribed for other vacancies. Acts 1826, Cobb,
1260.
As to oath, bond, and duties of receiver, see §§ 1195, 1197.
As to oath, bond, and duties of collector, see §§ 1206, 1207,
1211.
Constitutionality. — This section authorizing the Governor
to vacate the commission of defaulting tax collectors, is not
"inconsistent with" Article IX of the Constitution, which
provides that county officers "shall be removable, on con-
viction, for malpractice in office, or on the address of two-
thirds of the Senate." State v. Lennard, 48 Ga. 137.
ARTICLE 4.
Tax-Receivers.
SECTION l.
Election and Liability.
§ 1194. (§ 931.) Tax-receivers, how elected.—
The tax-receivers shall be elected on the first
Wednesday in January, biennially, for the term of
two years, and are commissioned and qualified as
clerks of the superior court are. Vacancies are filled
as vacancies for such clerks. Acts 1872, p. 82.
See §§ 4881-4886.
§ 1195. (§ 932.) Receivers' oath and bond.—
Such receiver, whether elected or appointed, before
entering on the duties of his office, besides the oath
required of all civil officers, must take and sub-
scribe the following oath: "I swear that I will
truly and faithfully perform the duties of receiver
of returns of taxable property, or of persons or
things specially taxed in the county to which I am
appointed, as required of me by the laws, and will
not receive any return but on oath or affirmation,
and will before receiving returns carefully examine
each, and will to the best of my ability carry out
all the requirements made upon me by the tax law.
So help me God." He shall also at the same time
give bond and security in a sum equal to one fourth
of the amount of the State tax supposed to be due
from the county for the year in which he shall give
bond; provided, however, that no tax-receiver shall
be required to give a bond exceeding the sum of
ten thousand dollars; the amount of said bond to
be filled by the comptroller-general before being
sent out to the several counties from the Executive
office. Acts 1863-4, p. 124; 1896. p. 38: 1901, p. 23.
See note to following section.
To Whom Payable.— No bond is required of a receiver,
payable to the county or to the ordinary of the county
Fannin County v. Pack, 149 Ga. 703, 102 S. F. 166.
§ 1196. (§ 933.) Liability of receivers, etc. —
Receivers and their sureties are liable on their
bonds for all penalties or forfeitures they may in-
cur under the law, and for all losses, or damage, or
expense the State may sustain by reason of their
conduct.
Liability to County. — Where no bond was given by the
receiver to the ordinary or to the county, but the bond
payable to the Governor as required by § 1195 was given,
conditioned generally lor the faithful discharge of all the
duties required of the receiver, and where the receiver, in
his settlement with the ordinary, by mistake or otherwise,
obtained a warrant on the county treasurer for a sum in
excess of his legal commissions and received payment
thereof out of county funds and retained that sum, and
where the surety himself had never received any county
funds, the ordinary was not authorized to issue an execu
tion against the surety on the bond of the receiver. Fann-
in County v. Pack, 149 Ga. 703, 102 S. R. 166.
SECTION 2.
Duties of Tax-Receiver.
§ 1197. (§ 934.) Duties of receiver enumerated.
— It is his duty —
1. To receive all returns of taxes within the time
and in the manner prescribed by law.
2. To make out and perfect the three digests in
writing and figures plainly, legibly and neatly, and
to properly deposit them.
3. To give ten days' notice in writing of the sev-
eral times and places at which he will attend in the
several militia districts of the county, for the pur-
pose of receiving tax returns.
4. To attend at such place at least three times
during the time allowed in which to make returns.
5. To keep a standing advertisement as to the day
or days when he will be at the county-site for such
purpose.
6. To receive tax returns at any time when a
taxpayer applies to give in.
7. To embrace in his digest to the comptroller-
general, the ordinary, and the tax-collector, respec-
tively, a list of all defaulters, and the amount of their
true and double tax, and of all property assessed
by them and returned by no one, or other special
action had in conformity to the laws.
8. To publish at the door of the court-house, for
thirtjr days, lists of all the defaulters and the
amount of their double taxes.
9. To assess upon the digests deposited with the
ordinary the county taxes according to law. and
the rate per cent, levied by said ordinary.
10. To conform to such rules as he may be fur-
nished with, and to obey such orders as may be
given by the comptroller-general.
11. To perform all other duties that the law re-
quires, and which necessarily under the law ap-
pertain to his office. Act 1804, Cobb, 1045. Act
1807, Cobb, 1054. Act 1812, Cobb, 1057. Act 1813,
Cobb, 1059. Acts 1851-2, p. 290.
Not to Handle County Funds. — The duties of receivers
enumerated in this section, do not include the duty to col-
lect or handle any county funds. Fannin County v. Pack,
149 Ga. 703, 102 S. E. 166.
SECTION 3.
Examination and Correction of Returns by Grand
Jury.
§ 1198. (§ 935.) Grand jury shall inspect re-
ceiver's books. — The tax-receiver in each county
of this State, in each and every year, at the fall
term of the superior court in his county, shall lay
before the grand jury his returns for that year, of
the taxable property in his said county, and the
[ 263
§ 1199
TAX-COLLECTORS
§ 1206
grand jury shall overlook the same, and whenever
they find an undervaluation, correctly assess the
same, according to the market valuation of the
property, and return to the receiver his returns
with the corrections which they have made. Acts
1874, p. 108.
As to statement of special taxes to grand jury, see i
1218.
What Is Sufficient Compliance. — Compliance with this
section would require that the grand jury should at least
designate the owner of the lands and state the valuation
at which they assessed the same, and the mere general
recommendation that returns of lands at less than certain
valuations shall not be received does not carry out the
provisions of the section. Shippen Bros. Lumber Co. v.
Adams, 141 Ga. 354, 355, 80 S. E. 1009.
Effect of Failure to Comply. — Where there is a failure
to comply with this section the enforcement of a tax fi. fa.
may be enjoined. Shippen Bros. Lumber Co. v. Adams,
141 Ga. 354, 80 S. E. 1009.
Not Applicable to Railroads. — The provisions of this sec-
tion for increasing the assessed valuation do not apply to
the return of railroads for county taxation. Columbus So.
Ry. Co. v. Wright, 89 Ga. 574, 594, 15 S. E. 293.
§ 1199. (§ 936.) Corrected returns the guide for
next year. — When the receiver shall receive his re-
turns for the next succeeding year and the cor-
rected returns made by the grand jury, it shall be
his guide for that year, and if the taxpayer shall
return his property below the valuation made by
the grand jury, the receiver and taxpayer each
shall select an arbitrator; and these two shall select
an umpire, to whom the question of valuation
shall be referred; and if the arbitrators fail to agree
on a valuation of the property, or fail to select an
umpire, in thirty days after receiving notice of their
appointment, this fact shall be reported to the or-
dinary or the chairman of the county commis-
sioners (as the case may be)„ who shall forthwith
appoint two arbitrators, who with the arbitrator
appointed by the taxpayer shall fix the value of the
property, and their award shall be returned to the
receiver, and shall be entered by him as the valua-
tion of said taxpayer's property. Acts 1909, p. 81;
1874, p. 108.
§ 1200. (§ 937.) These provisions to be given
in special charge. — The judges of the superior
courts, at each fall term, shall give these provisions
in special charge to the grand juries, that they may
be informed of the duties therein imposed upon
them. Acts 1874, p. 109.
§ 1201. (§ 939.) Return forwarded to comp-
troller.— The ordinary shall forward a copy of a
defaulting taxpayer's corrected return and affidavit
to the comptroller-general instanter, and retain the
originals, for which he shall be entitled to one dol-
lar from the taxpayer.
SECTION 4.
Tax — Receiver's Compensation.
§ 1202. (§ 940.) Receiver's pay, etc. — ' The
county shall pay the receiver the same compensa-
tion the collector gets for collecting the county tax.
Acts 1918, p. 111.
Cross References — See §§ 1234, 1235.
As to salary of tax-receiver and duty to pay over fees
collected to county or state, for all counties having 200,000
popidation or more, see § 6017 (5) ; counties having be-
tween 44,000 and 60,000, and from 70,000 to 150,000 popula-
tion, see § 6017 (12); counties of from 60,000 to 70,000
population, see § 6017 (25).
Editor's Note. — Prior to the amendment of 1918 (Acts
1918, p. 110), the receiver only received half as much as
the collector, instead of the same amount. No correspond-
ing amendment of § 1235, paragraph (3), has been passed
by the legislature, but there is clearly an implied amend-
ment thereof.
When Amendment Effective.— The act of the General As-
sembly, approved August 17, 1918, amending § 1202 of the
Civil Code of 1910, relating to the compensation of tax-
receivers in this State, went into effect from and .after the
date of its passage, and "from and after that date" (for
so much of the year as remained) receivers were intitlcd
to compensation at the rate fixed by the act. Floyd
County v. Salmon, 151 Ga. 313, 106 S. E. 280. See also
Salmon v. Floyd County, 24 Ga. App. 796, 102 S. E. 364;
S. C, 26 Ga. App. 582, 107 S. E. 91.
No Pay In Connection With School Tax.— This section
does not embrace a provision for paying the receiver
commissions for any services in connection with the levy
of the county-wide tax for school purposes, raised under
the school laws. Board v. Drake, 157 Ga. 8, 121 S. E.
645; Hurst v. Board, 157 Ga. 648, 122 S. E. 45.
Not Applicable Where Return to Comptroller — General.—
This section and § 1235 of the Civil Code fix the rate of
compensation where the tax return is entered on the digest
of the tax-receiver, but they have no application to re-
turns made exclusively to the comptroller -general of the
State, and in which case they are not entered on the tax-
receiver's digest. Glynn County v. Dubberly, 148 Ga. 290,
96 S. E. 566. See also Glynn County v. Dubberly, 22 Ga.
App. 603, 96 S. E. 992; Central Ry. Co. v. Meriwether
County, 22 Ga. App. 607, 96 S. E. 886.
§ 1203. (§ 941.) Default and insolvent list.— In
netting the digest, the default list shall be deducted
for the receivers, and the insolvent list for the col-
lectors.
Cross References. — See § 1014.
As to salary of tax- receiver and duty to pay over fees
collected to county or state, for all counties having 200.-
000 population or more, see § 6017 (5); counties having be-
tween 44,000 and 60,000, and from 70,000 to 150,000 popula-
tion, see § 6017 (12); counties of from 60,000 to 70,000 popula-
tion, see § 6017 (25).
ARTICLE 5.
Tax-Collectors.
SECTION l.
Election and Oath.
§ 1204. (§ 942.) Election, commission of tax-
collectors, etc—Tax-collectors are elected at the
same time and in the same manner, for the same
term of office, and are commissioned and qualified
as tax-receivers.
See § 1194.
§ 1205. (§ 943.) Vacancies, how filled.— Vacan-
cies are filled as they are in the office of receiver.
See § 1194.
§ 1206. (§ 944.) Collector's oath. — Before en-
tering on the duties of his office, besides the oath
required of all civil officers, he shall take and sub-
scribe the following oath: "I, , tax-collector of
the county of , do swear that I will faithfully
discharge the duties required of me by law as tax-
collector, and that I will search out and make a
true return of all defaulters, polls, professions, and
all taxable property not found on the tax-receiver's
digest, or not returned to the clerk of the superior
court by the fifteenth of August, and that I will pay
over all taxes collected by me, as required by law.
So help me God."
264 ]
§ 1207
TAX-COLLECTORS' DUTIES
§ 1211
SECTION 2.
Tax-Collectors' Bonds.
§ 1207. (§ 945.) Amount of bonds and their con-
ditions.— He shall also give bond and security for
sixty per cent of the State tax supposed to be due
from the county for the year for which said officer
is required to give bond, the amount of the bond
to be filled up by the comptroller-general before
being sent out to the county from the Executive
office; and shall give another bond with sufficient
security, payable to the ordinary, conditioned for
the faithful performance of his duties as collector
of the county tax, in a sum to be fixed by such or-
dinary, not to exceed fifty thousand dollars. Acts
1863-4, p. 124; 1925, p. 79.
See 10 Cum. Dig. 873; 12 Enc. Dig. 115.
Editor's Note.— This section was amended by the acts
of 1925, p. 79. The amount of the state bond was increased
from 33^3 to 60 per cent more than the supposed tax, and
that of the bond to the county was limited to a maximum
of $50,000.
Irregular Bond.— In Dedge v. Branch, 94 Ga. 37, 20 S.
E. 657, a writing intended as a bond, not under seal, exe-
cuted in blank, and filled in by the ordinary, not approved
or recorded, was enforced against the subscribing parties.
Same — Delay. — Although a tax collector was elected on
January 1, 1879, and did not give an official bond until July
23 thereafter, still, the bond then given stood in the place
of the bond which should have been given. Therefore,
where execution was so issued and levied on the property
of the sureties, it was error to dismiss the levy on the
ground that the -bond was not a statutory bond. Fulton
County v. Clarke, 73 Ga. 665.
What Constitutes Breach. — It is the failure to pay over
taxes collected and not the date of the collection which
constitutes the breach of the bond. Fidelity, etc., Co. v.
State, 148 Ga. 545, 97 S. E. 536.
School Taxes. — The tax collector's bond binds him for a
tax for school purposes as for other county taxes. If it be
too small, that may be reason for legislative change, but
not for injunction. Smith v. Bohler, 72 Ga. 546.
Security on Bond to Governor Not Liable for Default as
to County Taxes. — The securities upon a tax collector's
bond, payable to the Governor of the State, conditioned
for the faithful performance of his duty in the collection of
the general tax of the State, are not liable to the ordinary
for the failure of the tax collector to collect and pay over
the county tax. Barlow v. Sumter County, 47 Ga. 639.
See note to § 1196.
Same — Voluntary Payment. — The bond payable to the
governor does not cover defalcation of county funds, and
if the sureties pay for such defalcations, it is a voluntary
payment, and they are not entitled to subrogation to the
county's right against a bank alleged to have aided the
tax-collector. McWhorter v. Bank, 160 Ga. 894, 129 S. P^.
433.
Precludes Local Laws on Subject.— An act requiring the
sureties on bonds of county officers in a certain county to
be guaranty companies is violative of art. 1, § 4, par. 1,
of the constitution of this State, in that it is a local law
on a subject for which there was provision by an existing
general law at the time of its adoption. Malov v. Wil-
liams, 140 Ga. 376, 78 S. E. 1054.
§ 1208. (§ 946.) Approved by whom. — Such
hond for county taxes when given must be ap-
proved by the ordinary, filed in his office, recorded
in the book with other official bonds, and in all re-
spects is an official bond.
See note to preceding section.
§ 1209. (§ 947.) Bond to be given, etc.— Tax-
collectors shall not collect any portion of the
county tax until such bond is given, and if they fail
to give such a bond, or one satisfactory to such
ordinary, he may appoint some competent person
to collect the county tax. Acts 1823, Cobb, 1065.
§ 1210. (§ 948.) Duty of person so appointed. —
When such an appointment is made, the person ap-
pointed shall give such a bond as is required of a
tax-collector, and he shall lake an oath faithfully
to collect and pay over the county tax, and in all re-
spects shall have the same privileges, discharge
the same duties, and incur the same penalties as
the tax-collector would in collecting the county
tax.
SECTION 3.
Tax-Collectors' Duties.
§ 1211. (§ 949.) Collector's duties enumerated.
— It is the duty of the tax-collector —
See 10 Cum. Dig. 816, 12 Enc. Dig. 116.
There is in this section of the code nothing inconsistent
with § 1213. One defines the duties of the collector, and
the other specifies the particular time in which he shall
account to the State and county for the manner in which
he has performed those duties. Lee v. Taylor, 107 Ga.
362, 364, 33 S. E. 408.
1. To diligently collect and promptly pay over in
the funds allowed by law the State and county
taxes to the comptroller-general and the county
treasurer, respectively.
As to collection of assessment on drainage district bonds,
see § 439 (34). As to compensation of tax collector for
collection of drainage bonds, see § 439 (46).
2. To search out and ascertain as far as possible
all polls and professions, and all taxable property
not returned to the receiver or not found in his
digests.
3. To enter all of such defaults in a book kept for
that purpose, to assess and collect thereon a double
tax and pay the same over to the comptroller-gen-
eral and count}- treasurer, respectively, after de-
ducting single commissions, and to deposit said
book with the comptroller-general, and a copy with-
the ordinary, before the day of final settlement.
4. To have his insolvent lists allowed in the man-
ner required by law before final settlement with the
comptroller-general.
5. To issue executions against all defaulters and
insolvents, and place them with the proper officer
for collection.
6. To give notice of the time and places of his
attending to collect the taxes, and of the days he
will be at the court-house, and there to attend dur-
ing the time for collection required of the receiver.
7. To publish at the door of the court-house, for
thirty days, his insolvent lists, including the taxes
of each person thereon. To furnish to election-
managers of the county lists of all persons who
have not paid their taxes.
8. To pay the receiver his commissions, upon the
production of the comptroller-general's receipt for
his digest, with a specification therein of the
amount of commissions to which he is entitled, and
not otherwise; and to produce said receiver's re-
ceipts, with his receipts thereon, to the comptroller-
general, before he shall be allowed credits for such
commissions.
9. To conform to such rules as may be furnished,
and to obey such orders as may be given by the
comptroller-general.
10. In collecting the special tax that may be
levied year after year on dealers in intoxicating
bitters, or other articles of like character, and upon
dealers in spirituous, vinous, and malt liquors, or
[265 ]
§ 1211(1)
TAX-COLLECTORS' DUTIES
§ 1213
any other person liable to special tax, to report the
name of the person or firm paying said tax, the
amount paid, and the date of said payment, to the
comptroller-general at the time of paying said
special tax into the State treasury.
11. To issue executions against all tax defaulters
who are residents of the counties in which said
tax-collectors are holding their offices, for any and
every year preceding and including the years for
which they are elected, and to collect the tax due
from said defaulter, and pay over the same to the
proper authorities.
As to executions against defaulters on drainage district
bonds, see § 439 (34). As to compensation of collector for
collection of drainage bonds, see § 439 (46).
12. To preform all other duties that the law re-
quires, and which necessarily under the law ap-
pertain to his office. Act 1804, Cobb, 1046. Act 1812,
Cobb, 1058. Acts 1857, p. 31. 1858, p. 104. Acts
1862-3, p. 57. Acts 1878-9, p. 78. Acts 1875, p. 120.
§ 1211(1). Duty as to special-tax digests. — After
January 1, 1925, it shall be the duty of the several
tax-collectors of this State, in addition to their other
duties, to make out and prepare two digests, said
digests to be known as special tax digests, in writ-
ing and figures, plainly, legally [legibly] and neatly
covering all special or occupation taxes of every
character, either due or paid by each individual
firm, partnership or corporation. Acts 1924, pp.
183, 184.
§ 1211(2). Revenue commissioner to supply di-
gests, cash-books; licenses to be posted. — It shall
be the duty of the Commissioner of Revenue of the
State of Georgia to have printed, at the expense of
the State, special tax digests to be used by said
tax-collectors in reports of individuals, firms,
partnerships, and corporations subject to special
and occupation taxes; and also ca^h-books, receipt
license books with stubs, for the use of the said
tax-collectors, and it shall be the duty of every in-
dividual, firm, partnership, or corporation who
may be subject to special or occupation taxes to,
post their State license in a conspicuous place in
their place of business, and to keep it there at all
times during the life of such license. Acts 1924, pp.
183, 184.
§ 1211(3). Pay of tax-collectors for preparing di-
gests.— The said tax-collectors, for the services
rendered in the preparation of special or occupa-
tion tax digest, shall be entitled to a remuneration
of ten cents for the name of each individual, firm,
or corporation subject to pay a special or occupa-
tion tax under the laws of Georgia, in their respec-
tive counties entered on said digests. Acts 1924, pp.
183, 184.
As to salary of tax-collector and duty to pay over fees
collected to county or state, for all counties having 200,000
population or more, see § 6017 (5), counties having be-
tween 44,000 and 60,000, and from 70,000 to 150,000 popula-
tion, see § 6017 (12); counties of from 60,000 to 70,000 popula-
tion, see section 6017 (25).
§ 1211(4). When digests opened; list of de-
faulters.— It shall be duty of the several tax-collec-
tors to open their said digests for the entry or re-
turn of special or occupation taxes on the first day
of January of each year, and to receive special or
occupation taxes, or the returns thereof within the
time and in the manner prescribed by law; to em-
brace in his said digest to the Commissioner of
Revenue, and in the permanent records of his
office, respectively, a list of all defaulters, and the
amount of their true taxes; and to perform all other
duties required by law, and which necessarily, un-
der the law appertains to his office. Acts 1924, pp.
183, 185.
§ 1211(5). Completion of digest, copy for com-
missioner.— It shall be the duty of the several tax-
collectors of this State to complete in a plain, neat
and legible manner the digests of special or occupa-
tion taxes, not later than March 1st of each year,
sending one copy of same immediately to the Com-
missioner of Revenue, and retaining in his own
office as a permanent research of same, the other
copy. Acts 1924, pp. 183, 185.
§ 1211(6). Subsequent lists; duplicates for
Commissioner. — It shall be the duty of the several
tax-collectors of this State, after the completion of
the aforesaid digest in duplicate on March 1st of
each year, to continue to enter in their digests
names of all who then or may later owe the State
special or occupation taxes and all tax-collectors
are required to send a duplicate list of all names so
entered to the Commissioner of Revenue weekly,
in writing, that the returns of said taxes may ba
entered on the digest in the office of the Commis-
sioner of Revenue, so that the tax record of the
State may be kept up-to-date. Acts 1924, pp. 183,
185.
§ 1211(7). Remittances to commissioner. — It
shall be the duty of the several tax-collectors of
this State to remit to the Commissioner of Revenue,
on the first day of each month, of all special or
occupation taxes which are delinquent, after de-
ducting their commission of 10% as now allowed
by law, plus ten cents per name for each individual
firm, partnership, or corporation whose name they
have entered on digest kept in their offices for that
purpose, plus all penalties collected on delinquent
taxes, to the Commissioner of Revenue after de-
ducting ten per cent, of penalties collected by tax-
collectors as their commission. Acts 1924, pp. 183,
185.
§ 1211(8). Records of Tax-Collector. — It shall
be the duty of the several tax-collectors of this
State to keep in their respective offices, as a per-
manent record one copy of the aforesaid tax di-
gest, and all cash-books, receipt license books,
showing stub for every license issued. All the
aibove-described books shall be subject to the in-
spection and. examination of the Commissioner o{
Revenue, or his deputies, at any reasonable time,
and for the benefit of the public. Acts 1924, pp.
183, 186.
§ 1212. (.§ 950.) Collector's negligence no excuse
to defaulting taxpayer. — It is no excuse to any
person for not paying his taxes as the law requires,
that the collector should fail to advertise or fill his
appointments.
As to negligence of receiver, see § 1082.
§ 1213. Monthly statements of taxes collected. — -
It shall be the duty of the State and county tax-
collectors to make monthly statements in dupli-
cate under oath of all taxes, both State and
' county, collected by them, one copy to be filed
[266]
§ 1214
TAX-COLLECTORS' DUTIES
§ 1217(2)
with the comptroller-general and one to be filed
with the ordinaries of their respective counties, or
such other officer as may have the supervision of
the revenues of their counties. Acts 1896, p. 35.
Supplementary to §§ 1218, 1219. — These monthly state-
ments are required in addition to the full statement of
special taxes which are required to be made to the grand
jury under the provisions of § 1218 of the Code, and the
quarterly statements of special taxes to the comptroller-
general as required by § 1219 of the Code. Musselwhite
v. State, 156 Ga. 567, 119 S. E. 527. See S. C, 29 Ga. App.
229, 115 S. E. 28.
Must Report Special Taxes. — This section requires the
tax-collector to make a report of special taxes as well as
general taxes. Musselwhite v. State, 156 Ga. 567, 119 S.
E- 527. See S. C, 29 Ga. App. 229, 115 S. E. 28.
No Obligation to Pay Over Until Report Due. — A tax-
collector is under no obligation to pay to the county
treasurer any money in his hands collected during a cer-
tain month, until he makes his statement on the first
Monday of the succeeding month. L,ee v. Taylor, 107 Ga.
362, 33 S. E. 408.
Same — Mandamus. — A writ of mandamus will not lie
either to compel the collector to pay such moneys to the
county treasurer before the first day of the month suc-
ceeding their collection, or to compel him, after that time.
to pay such moneys to one whose term of office has ex-
pired and whose successor has been elected and qualified.
Lee v. Taylor, 107 Ga. 362, 33 S. E. 408.
§ 1214. Reports, when made, and what to include.
— The monthly statements shall be made on the
first Monday in October in each year, and shall
include all taxes collected for and during that fis-
cal year, and then shall be made monthly there-
after on the first Monday in each month, until the
tax-collectors have made a final settlement with
the State and county for that fiscal year.
See note to preceding section.
§ 1215. Payments, when and how made. — The
tax-collectors when they make their monthly
statements as provided for in the foregoing sec-
tions after, deducting their commissions on the
amount included in their monthly statements, shall
pay into the State treasury, or such banks as are
designated by the Governor as State depositories,
the hundreds of dollars of the State's part of the
amount in said statement, leaving the fractions oi
hundred dollars on hand, and which will consti-
tute the first item in the next month's statement;
they shall also, at the same time, after deducting
their commissions for collecting the county's part
Df the taxes, pay into the county treasury the hun-
dreds of dollars of the county's part of the amount
in said statement, leaving the fraction of hundred
dollars on hand, and which will constitute the sec-
3nd item in the next month's statement.
See note to § 1213.
As to weekly settlement in certain counties, see § 1215.
§ 1216. Forfeiture for failure to report and pay.
—Any tax-collector who shall fail or refuse to
make the monthly statements, and to make
monthly payments to the State and county as is
-equired by the foregoing sections shall forfeit
lis commissions to the State and county for the
month in which the failure was made.
As to the penalty for the violation of this act, see' §
276 (1) P. C.
§ 1216(1) When State taxes in certain coun-
ties paid to treasurer. — Whenever the tax col-
ector, in any such county having a population of
less than thirty thousand, collects State taxes to
:he amount of five thousand dollars, he shall at
snce pay the same over to the treasurer as now
[ 26
required by law; and shall also pay over all the
taxes he may have collected during any two
weeks, on every other Saturday, whether the same
amounts to five thousand dollars or not; so that no
tax collectors in said counties shall have or keep
any of the money of the State in his hands for a
longer period than two weeks. Acts 1925, pp.
79, 80.
§ 1216(2) County taxes, when turned over. —
Said tax collectors, county tax commissioners,
sheriffs, and constables shall each pay over, from
time to time, the county taxes to the proper of-
ficers, as now required by law, so soon as there is
collected five thousand dollars and if he fail to
collect said sum during any two weeks, he shall
then pay over on Saturday all he has collected
during the prior two weeks, together with a list of
the taxpayers, and the amounts paid by them, dur-
ing said period. Acts 1925, pp. 79, 81.
§ 1216(3) Reports by tax collector. — The tax
collector in each of such counties shall make dupli-
cate reports every two weeks to the Comptroller-
General and the county authorities of the aggre-
gate amount of taxes collected during said two
weeks, naming separately the amount of taxes col-
lected for the State and the county, and shall
swear that the same is a correct report of the
taxes collected as aforesaid. Acts 1925, pp.
79, 81.
§ 1216(4) Neglect of duty. — If any of such tax
collectors fail or refuse to make said payment, or
if he make a false return, or if he fail or refuse to
file such list as required, it shall be the duty of the
Comptroller-General, or the Ordinary, or county
officer having charge of the county affairs, as the
case may be, to report said facts to the Governor,
and it shall be the duty of the Governor to cause
a notice to be served on said tax collector, calling
on him to show cause why he should not be re-
moved from office, and if he fail to make a proper
excuse within ten days, it shall be the duty of the
Governor to remove him. Acts 1925, pp. 79, 81.
§ 1216(5) Applicable to what counties. — This
Act shall apply only to counties in the State of
Georgia having a population of less than thirty
thousand. Acts 1925, pp. 79, 81.
§ 1217. Blanks to be furnished by comptroller-
general. — It shall be the duty of the comptroller-
general to have prepared and to furnish the sev-
eral tax-collectors with suitable blanks on which
to make* the monthy statements as provided for in
section 1213.
§ 1217(1). County tax collectors required to keep
a cash book; collections how recorded. — The
County Tax Collectors of the State of Georgia are
hereby required to keep a record in the form of a
cash book, in which they shall record all items oi
cash collected for taxes, the date collected, the
amount collected, the name of the person, firm or
corporation for whose taxes such cash was col-
lected,. All of which items, amounts, entries and
dates shall be entered upon the lines and in the
columns designated in such record book on the
debit side. Acts 1910, pp. 121, 122.
§ 1217(2). Disbursements, how recorded. — The
County Tax Collectors of the State of Georgia, are
7]
§ 1217
WEEKLY REPORTS IN CERTAIN COUNTIES
§ 1124
herelby required to record in such record book all
items of cash paid out by them to the authorities oi
the State or the counties, designating whether to the
State or the counties, and to whom paid for either,
the date same was paid and the amount paid. All
of which items, amounts, entries and dates shall be
entered upon the lines and in the columns desig-
nated in such record book on the credit side. Acts
1910, pp. 121, 122.
§ 1217(3) Audit of cash books. — The County
Tax Collectors of the State of Georgia, are here-
by required to present such record book to the of-
ficials of the several counties having in their
charge the administration of . the county business
at the times prescribed (by law for making their
reports to the authority, they are now by law re-
quired to report to for a checking and auditing of
the same, and the endorsement of the name and
authority' of such official entered therein, the date
of such entry to be noted also. But the check-
ing, auditing and signature of such official in the
record book, shall at no time be construed, nor is
the same intended as a binding or final settlement
with the County Tax-Collectors, but shall only be
evidence that he had reported to the county au-
thority as now required b}' law, and that such re-
port was in check and accord with the record book
that he is hereby required to keep. Acts 1910, pp.
121, 122.
§ 1217(4). Cash book annually balanced and
filed with Ordinary; evidence; Comptroller Gen-
eral to furnish books. — The County Tax Collec-
tors of the State of Georgia, are hereby required
to annually make up and (balance such record, book,
and to file the same in the office of the Ordinaries
in the several counties of the State by not later
than the 1st dajr of July in each year hereafter.
That said record shall be by the Ordinaries pre-
served as permanent records in their offices. And
that such record book, or a transcript therefrom,
when properly authenticated shall be admitted in
evidence in courts of this State as evidence of the
payment of taxes. The Comptroller General at the
expense of the State, to furnish the tax collectors
of this State the book required under this Act.
Acts 1910, pp. 121, 123.
As to penalty for violation, see § 276 (1) P. C.
administered by any duly qualified officer, of all
special taxes collected by them, except those given
in and entered upon the receiver's digest, setting
forth in said returns the names of all persons or
companies paying such tax, when paid, for what
purpose, and the amount thereof. Acts 1878-9,
p. 80.
SECTION 5.
Bonds of Collectors in Certain Counties.
§ 1220. (§ 953.) Separate bonds.— Each of the
tax-collectors of such counties in this State as
have a population of thirty thousand or more shall
enter into two bonds, one to the State for fifty
thousand dollars, with good and approved, security
as now required by law, and one to the county in
the sum of twenty-five thousand dollars, with like
approved security, as now required by law, for the
faithful performance of the duties of such tax-
collector. Acts 1890-1, p. 105.
SECTION 4.
Report to Grand Jury and Comptroller*.
§ 1218. (§ 951.) Statement of special taxes to
grand jury. — It shall be the duty of the tax-col-
lector of each county in this State to la}r before
the grand jury, on the first day of the term of
each court, a full statement of all special taxes re-
ceived by him for the six months immediately
preceding said report, and to state fully the date
of said payments, from whom received, and also
the amounts received. And the judges of the su-
perior courts of this State shall give this law in
charge to the grand jury at each term of their re-
spective courts. Acts 1878-9, p. 78.
See note to § 1213.
§ 1219. (§ 952.) Quarterly returns of special
taxes to comptroller. — It shall be the duty of the
tax-collectors of this State to make quarterly re-
turns to the comptroller-general, under oath to be I
SECTION 6.
Weekly Reports in Such Counties.
§ 1221. (§ 954.) Weekly settlement of amount
due State. — Whenever the tax-collector, in any
such county having a population of thirty thous-
and or more, collects State taxes to the amount of
five thousand dollars, he shall at once pay the
same over to the treasurer as now required 'by
law; and shall also pay over all the taxes he may
have collected during the week, on Saturday of
each week, whether the same amounts to five
thousand dollars or not; so that no tax-collector
in said counties shall have or keep any of the
money of the State in his hands for a longer period
than one week. Acts 1890-1, p. 105.
§ 1222. (§ 955.) Amount due county.— Said tax-
collectors shall each pay over, from time to time,
the county taxes to the proper county officers, as
now required by law, so soon as there is collected
three thousand dollars; and if he fail to collect
said sum during any week, he shall then pay over
on Saturday all he has collected during said week.
Acts 1890-1, p. 105.
§ 1223. (§ 956.) Weekly duplicate reports.—
The tax-collector in each of such counties shall
make duplicate weekly reports to the comptroller-
general and the county authorities of the aggre-
gate amount of taxes collected during said week,
naming separately the amount of taxes collected
for the State and the county, and shall swear that
the same is a correct report of the taxes collected
as aforesaid.
§ 1224. (§ 957.) Reports of failure to discharge
duty. — If any of such tax-collectors fail or refuse
to make said pa3mient, or if he make a false return,
of fif he fail or refuse to file such list as required,
it shall be the duty of the comptroller-general, or
the ordinary, or county officer having charge of
the county affairs, as the case may be, to report
said facts to the Governor, and it shall be the duty
of the Governor to cause a notice to be served on
said tax-collector, calling on him to show cause
vvh}' he should not be removed from office, and if
he fail to make a proper excuse within ten days, it
[268]
§ 1225
EXECUTION-DOCKET, RECEIPTS, AND STUB-BOOK
§ 1233
shall be the duty of the Governor to remove him.
Acts 1892, p. 89.
SECTION 7.
Collector, When Ex Officio Sheriff.
§ 1225. (§ 958.) Collector ex officio sheriff in
some counties. — The tax-collectors of counties
which contain a population of one hundred and
twenty-five thousand or more shall be ex officio
sheriffs in so far as to enable them to collect the
taxes due the State and county, by levy and sale
under tax executions; and said tax-collectors shall
not turn over any tax executions to the sheriffs,
or to any other levying officials of the said State,
except when it may become necessary, for the
purpose of enforcing the same, to send said exe-
cutions to any other county or counties than that
in which issued; but said tax-collectors, by virtue
of their office, shall have full power and authority
to levy all tax executions heretofore or hereafter
to be issued by them in their respective counties;
and the compensation of said tax-collectors shall
not exceed fifty cents for issuing each fi. fa., and
for levying and selling the same fees as are now
allowed by law to the sheriffs of said State; and
said tax-collectors shall have full power to bring
property to sale, and sales made by them shall be
valid, and shall'convey the title to property thus sold
as fully and completely as if made by the sheriffs of
said counties. Acts 1890-1, p. 101; 1915, p. 11.
For sections affected by this provision, see §§ 1121, 1145,
1156, 1165, 1166, 1230.
Editor's Note. — By the act of 1915, p. 11, the minimum
population required in order that this section be applicable
was raised from 75,000 to 125,000.
Effect on Transfer of Execution. — An execution issued by
a tax-collector for State and county taxes can not be law-
fully transferred by the tax collector in a county having a
population of less than 75,000 (Now 125,000). Hill v.
Georgia State Building, etc., Asso., 120 Ga. 472, 47 S. E.
W7. See also Thompson v. Adams, 157 Ga. 42, 120 S. E.
529.
§ 1226. (§ 959.) Levy under general law. — All
levies and sales made by the tax-collectors as ex
officio sheriffs, under the provisions of this Article,
shall, as to the time, place, and manner, and in
all other respects, conform to, and be controlled
by, the general laws of the State regulating sales
under tax fi. fas. Acts 1890-1, p. 101.
See §§ 1165-1167.
§ 1227. (§ 960.) Deputies. — Tax-collectors in
counties under the provisions of this Article shall
have power to appoint one or more deputies, who
shall be vested with the same powers as to levy and
collections as are vested in the tax-collectors; the
said tax-collectors shall be responsible for the acts
of said deputies, and their compensation shall be
paid by said, tax-collectors. Acts 1890-1, p. 101.
Collector Can Not Contract Not to Discharge Deputy. —
A contract, between a collector and his deputy, in so far
as it restricts the right and power of the tax-collector at
any time to discharge the deputy for any reason whatso-
ever, either with or without cause, hampers and encumbers
the tax-collector in performing the public duties of the
office, and for that reason is against public policy.
Andrews v. Richardson, 32 Ga. App. 687, 124 S. E- 378.
SECTION 8.
Execution-Docket, Receipt, and Stub-Book.
§ 1228. (§ 961.) Keep stub-book of tax receipts.
-The several tax-collectors of this State shall
keep a stub-book of tax receipts, and enter on the
receipt and the stub attached thereto the name or
each taxpayer in their respective counties, the
amount of taxes assessed against him, and itemize
the same, stating the amount due the State,
county, poll-tax, or any other professional or spe-
cial tax. Acts 1884-5, p. GO.
§ 1229. (§ 962.) Execution December twentieth
of each year. — They shall keep an execution-
docket, and on the twentieth day of December in
each year issue executions against each delinquent
or defaulting taxpayer in their respective coun-
ties, unless further time is allowed as now pro-
vided by law, and enter the names of such delin-
quent or defaulting taxpayers on said docket, to-
gether with an itemized statement of the taxes
covered by such execution. Acts 1884-5, p. 66.
See § 1151.
§ 1230. (§ 963.) Receipt to be attached.— When
such executions have been issued, it shall be tin
duty of the officer issuing the same to clip from
the stub the unsigned receipt of such taxpayer,
and attach the same to the execution issued,
and place said executions in the hands
of some officer authorized by law to collect the
same, and make an entry on his execution-docket
of the name of said officer and the date of deliv-
ery. Acts 1884-5, p. 66.
Effect of Non-Compliance. — The omission of the tax-
collector to attach an unsigned receipt to the execution, as
required by this section, does not render the execution
void but only irregular. Wilson v. Herrington, 86 Ga. 777,
13 S. E. 129.
§ 1231. (§ 964.) Duty of collecting officer.— Tt
shall be the duty of the officer into whose hand
said execution is placed, to proceed at once to col-
lect the same, and when*said, execution is paid by
the defendant, voluntary or by levy and sale, it
shall be the duty of said officer to detach from the
execution the tax receipt and enter thereon the
amount collected., including all costs and commis-
sions, and also to make a similar entry on said
execution, the receipt to be delivered by the of-
ficer to the defendant, and the execution to be re-
turned to the tax-collector with the amount of tax
collected, who shall at once copy the entry of the
officer on his execution-docket and file said execu-
tion in his office. Acts 1884-5, p. 66.
See §§ 1165, 1166.
§ 1232. (§ 965.) Docket to be submitted to
grand jury. — It shall be the duty of the several
tax-collectors of this State to submit their respec-
tive execution-dockets and cash-books to the
grand jury of the spring term of the superior
court of their respective counties, whose duty it
shall be to thoroughly inspect the same and re-
port thereon by general or special presentment.
Acts 1884-5, p. 66.
§ 1233. (§ 966.) Penalties. — For a violation of
any of the provisions of the five preceding sec-
tions, said tax-collector so violating shall forfeit
all or such part of his commissions as the grand
jury of the county shall recommend; and if he
fails to pay over such penalty imposed, it shall be
enforced, against such tax-collector and his se-
curities by the comptroller-general, as now pro-
vided by law against defaulting tax-collectors,
with twenty per cent, penalty of the amount added
thereto. Acts 1884-5, p. 66.
[ 269 ]
§ 1234
MISCELLANEOUS PROVISIONS
§ 1240
ARTICLE 6.
Compensation of Collectors and Receivers.
§ 1234. (§ 867.) Pay of tax officers,— The com-
missions to !be allowed to each receiver and col-
lector of State and county tax shall be as fol-
lows, viz.:
On all digests for the first one thou-
sand 6 per cent.
On all digests for excess over one
thousand dollars to two thou-
sand dollars 4 per cent.
On all digests for excess over two
thousand dollars to three thou-
sand dollars 3 per cent.
On all digests for excess over three
thousand dollars to four thou-
sand dollars 234 per cent.
On all digests for excess over four
thousand dollars to six thou-
sand dollars 2y2 per cent.
On all digests for excess over six
thousand dollars to eight thou-
sand dollars 2J4 per cent.
On all digests for excess over eight
thousand dollars to twelve thou-
sand dollars .'.... 2 per cent.
On all digests for excess over twelve
thousand dollars to eighteen
thousand dollars 1^4 per cent.
On all digests for excess over eight-
een thousand dollars to thirty-
six thousand dollars V/z per cent.
On all digests for excess over thirty-
six thousand dollars 1% percent.
Acts 1878-9, p. 78.
Cross References. — As to salary of tax-collector and tax-
receiver and duty to pay over fees collected to county or
state, for all counties having 200,000 population or more,
see § 6017 (S) ; counties having between 44,000 and 60,000,
and from 70,000 to 150,000 population, see § 6017 (12);
counties of from 60,000 to 70,000 population, see § 6017 (25).
As to there being no compensation to collector for du-
ties under drainage act, see § 439 (46).
More Than One Digest. — This section does not authorize
the collector to treat as a separate digest, distinct from
all others, the statement or list furnished to him by the
comptroller general, setting forth the names of the pub-
lic service corporations and the amount of taxes due bv
them to the county. Read v. Glynn County, 145 Ga. 881,
90 S. E. 60.
Pay of Receivers for School Taxes. — This section does not
embrace a provision for paying the receiver commissions
for any services in connection with the levy of the county-
wide tax for school purposes, raised under the school laws.
Board v. Drake, 157 Ga. 8, 121 S. E. 645; Hurst v.
Board, 157 Ga. 648, 122 S. E. 45.
§ 1235. (§ 968.) Local laws changing commis-
sions, repealed.
1. All laws heretofore enacted by the General
Assembly, fixing the commission of receivers of
tax returns and collectors of taxes in certain coun-
ties, different from the rates hereinbefore set
forth, are repealed.
2. And no tax-collector shall in any event receive
any greater or different rate of commission or rate
of payment for the collection of county taxes than
he receives by this Article for collecting State
taxes.
3. The commission of tax-receiver, to be paid
from county taxes, shall be one half the amount
allowed by this Article to tax-collectors for col-
lecting county taxes. Acts 1878-9, p. 25.
See § 1202.
Editor's Note — Section 1202 was amended by an act of
1915, to provide that receivers shall be entitled to the same
commissions as collectors, but paragraph 3 of this section
was unchanged. See notes to § 1202.
Not Applicable Where Return to Comptroller General.—
Section 1202 and this section fix the rate of compensation
where the tax return is entered on the digest of the tax-
receiver, but they have no application to returns made
exclusively to the comptroller-general of the State, and
in which case they are not entered on the tax-receiver's
digest. Glynn County v. Dubberly, 148 Ga. 290, 96 S. E\
566. See same case, 22 Ga. App. 603, 96 S. E. 992, and
Central Ry. Co. v. Meriwether County, 22 Ga. App. 607,
96 S. E. 886.
ARTICLE 7.
Miscellaneous Provisions.
SECTION l.
Comptroller to Make Rules.
§ 1236. (§ 969.) Comptroller-general to make
rules for collectors and receivers. — The comp-
troller-general has. authority to make all needful
rules and regulations for the government of tax-
collectors and receivers, and any other rules that
may be necessary to insure the prompt and faith-
ful execution of the laws, if not in violation of
or inconsistent therewith.
§ 1237. (■§ 970.) Furnish collectors and receivers
with the same. — These rules, when made, shall be
entered in a book in his office, kept for that pur-
pose, and be binding upon all successors until
amended or repealed, copies of which shall be
printed and furnished to receivers and collectors
at the time of sending them the forms required.
§ 1238. (§ 971.) May be published.— They shall
also be printed during the month of March every
year in a public gazette published at the seat of
government, if in the discretion of the comptroller
he shall deem it beneficial.
SECTION 2.
Suit on Bonds.
§ 1239. (§ 972.) Bonds may be sued on. —
Nothing shall be so construed as to make the col-
lector's and receiver's bonds not su'bject to be sued
according to due process of law, but which is not
to be done unless some emergency should make it
necessary.
SECTION 3.
Tax-Receiver and Tax-Collector to be Different
Persons.
§ 1240. (§ 973.) Tax offices separated.— All lo-
cal or special laws consolidating the offices of tax-
receivers and tax-collector in any of the counties
in this State are repealed, and the compensation
of said officers shall be governed by the general
laws in force in this State. Acts 1878-9, p. 76.
[270]
§ 1241
DEPARTMENT OF REVENUE
§ 1245(7)
SECTION 4.
Record and Lien of Tax Officers' Bonds.
§ 1241. (§ 974.) Tax officers' bonds, where re-
corded.— In all cases where one or more sureties
on the bond or bonds of county treasurers, tax-
collectors, or tax-receivers shall own real estate
in any county or .counties other than the county in
which such officers shall hold office, such bond,
within thirty days after the execution thereof, shall
be recorded in the county or counties wherein such
real estate is situated, by the ordinary of such
counties, or if the fiscal affairs of such counties
are or shall be by law committed to a board of
commissioners, such bond or bonds shall 'be re-
corded within thirty days after its execution, by
such board, in the book of record of bonds of
county officers. Acts 1890-1, p. 104.
§ 1242. (§ 975.) Bonds forwarded for record. —
After the bond of any such officer shall have been
accepted and recorded in the county in which such
an officer holds such office, the ordinary or board
of commissioners of such county shall forward the
same to the ordinary or board of commissioners
in each county in this State in which any one or
more sureties on such bond shall own any real es-
tate, and such ordinary or board of commissioners
to whom such bond shall be sent shall record the
same in accordance with the preceding section.
Acts 1890-1, p. 104.
§ 1243. (§ 976.) Third parties not affected un-
less bond recorded. — As against the interests of
third parties acting in good faith and without
notice, who may have acquired a transfer or lien
binding the real estate of any surety on the bond
of any county treasurer, tax-collector, or tax-re-
ceiver in this State, situated in any county other
than that in which such officer or officers shall
hold such office, no such real estate of such surety
or sureties shall Ibe bound from the date of such
bonds, unless such bonds shall have been recorded
in such county. When such bond or bonds shall
be recorded after the thirty days, the real estate of
the surety or sureties thereon, situated in any
county or counties other than that in which such
officer or officers shall hold such office or offices,
shall be bound only from the date when such bond
or bonds shall be so recorded. Acts 1890-1, p. 104.
See § 1190.
§ 1244. (§ 977.) Lien between parties un-
affected.— Nothing in preceding three sections
shall be construed to affect the validity or force
of the lien of any such bond from the date thereof
as between the parties thereto. Acts 1890-1, p. 104.
§ 1245. (§ 978.) Directions by Governor, and
costs of. record. — It shall be the duty of the Gover-
nor to give written or printed directions to the
ordinaries and boards of commissioners of the
various counties, upon the requirements of the four
preceding sections, as other instructions and direc-
tions are now given in reference to the bonds of
said officers; and the costs of transmitting and re-
cording said bonds shall be paid by the officer
whose bond it is. Acts 1890-1, p. 104.
SECTION 5.
Interest on Taxes and Settlements of Collectors.
§ 1245(1). Interest after December 20. Rate.—
All taxes due the State or any county thereof re-
maining unpaid on December 20th in each year
shall bear interest at the rate of seven per cent,
per annum from said date, and the several tax-col-
lectors of this State are required to collect the in-
terest on such unpaid taxes and account for same
in their final settlements. Acts 1917, p. 197.
§ 1245(2). Reports by collectors to Comptrol-
ler-General.— On the 20th day of December in
each year the several tax-collectors of this State
shall furnish to the Comptroller-General and to
the ordinary or county officer having charge of
the county affairs, as the case may be, of their re-
spective counties, a report showing the amount of
State taxes and the amount of county taxes re-
maining unpaid on said tax digest, and shall every
thirty days thereafter, until a final settlement is
made with both the State and county, furnish to
said officers a report showing the amount of State
tax collected and the amount of county taxes col-
lected from December 20th to the date of render-
ing such report, and also the amount of interest
collected from said delinquent or defaulting tax-
payers. Acts 1917, p. 197.
§ 1245(3). Record of interest, etc. — The several
tax-collectors of this State shall keep a record
showing the amount of interest collected from the
delinquent or defaulting taxpayers, the date upon
which said taxes and interest was collected and
from whom collected. Acts 1917, p. 197.
§ 1245(4). Final settlements in four months. —
From and after the passage of this Act the several
tax-collectors of this State are required to make
final settlements with both the State and county
within four months from December 20th of the
year in which said taxes become due, and upon
failure of any such tax-collector to make such final
settlement within the time such tax-collector shall
forfeit one-fourth of his commission unless some
good and sufficient reason be given rendering the
making of such final settlement impossible. Acts
1917, p. 197.
§ 1245(5). Interest payments. — All interest so
collected by the several tax-collectors of this State
shall be by them paid to the State and county at
the time and in the same manner the taxes are
now required to be paid. Acts 1917, p. 197.
§ 1245(6). Malpractice, removal for. — The fail-
ure or refusal of any tax-collector of this State to
carry out any of the provisions contained in this
Act shall constitute malpractice in office, and a
conviction therefor shall subject the offender to
removal from office. Acts 1917, p. 197.
CHAPTER 3A.
Department of Revenue.
§ 1245(7). Department created — Commissioner
of revenue; appointment, qualification, term of of-
fice, quarters, and clerical help. — There shall be a
Department of Revenue for the State of Georgia,
and the executive or administrative officers of said
department shall be known as commissioner of
revenue; he shall be appointed by the Governor
for a term of six years, and qualify by giving bond
as herein prescribed. He shall have his office in
the Capitol and be furnished with necessary cleri-
cal help and office supplies. Provided, said com-
[271]
§ 1245(8)
DEPARTMENT OF REVENUE
§ 1245(15)
missioner of revenue may be removed by the
Governor at any time for inefficiency, incompe-
tency, or failure to faithfully discharge the duties of
the office; Provided, further, the commissioner of
revenue may discharge any deputy for inefficiency
or failure to faithfully discharge the duties of such
deputy. Acts 1923, Extra Sess., pp. 13, 14.
Editor's Note.— There are several methods of dealing
with tax delinquents in Georgia. An enumeration of the
various methods will be found in the editor's note under
§ 1H6 (6).
Most of the various laws providing for the tax to which
this act is applicable will be found under §§ 993 (1) et seq.
and §§ 1770 (1) et seq.
The duties of the tax commissioner relating to the re-
ceipt of estate and inheritance tax will be found under §
1041 (1) et seq. It is probable that this section provides
the method for investigating the correctness of the re-
turns required under the 1925 inheritance law, § 1041 (1)
et seq.
§ 1245(8). Deputies; duties. Delinquent tax-
payers; penalty. — Said commissioner of revenue
shall have authority to appoint not more than six
deputies, no two of whom shall be appointed from
the same congressional district or section of the
State, whose duties shall be to look after the col-
lection of delinquent taxes of every kind that
may be due the State of Georgia, particularly
to investigate and collect delinquent license taxes,
special or occupation taxes, automobile tag taxes,
chauffeurs' license taxes, gasoline sales taxes,
and stamp taxes on cigars and cigarettes; it shall
be the further duty of such deputies to check up
estates subject to inheritance taxes and to report
information with reference to said estates to such
officers as may be charged with the administration
of the inheritance tax laws of this State. All de-
linquent taxpayers shall be subject to a penalty
of twenty per cent, for non-payment of said taxes.
All special or occupation taxes shall be deemed
delinquent after thirty days from the expiration of
the quarter in which they are payable. None of
the provisions of this Act shall apply to ad valorem
taxes or those required by law to be returned to
the tax receiver and entered in the tax digest. Acts
1923, Extra Sess., pp. 13, 14.
§ 1245(9). Co-operation of tax collectors with de-
partment of revenue commission. — It shall be the
duty of the tax collectors of this State to co-oper-
ate with the department of revenue in supplying
information as to delinquents, and said depart-
ment shall have access to all records of tax col-
lectors of this State in putting into effect the
operation of this Act, and that said tax col-
lectors shall not be entitled to any com-
mission whatever in the collection of de-
linquent taxes except where such collections are
made directly (by such tax collector, and then such
commission shall not exceed that of ten per cent,
now provided by law, and said tax collectors shall
not then have right to relieve any delinquent of
penalty provided in this Act, but shall collect said,
penalty and remit same, less his commission of ten
per cent, to said revenue department. Acts 1923,
Extra Sess., pp. 13, 15.
§ 1245(10). Compensation. — The commissioner
of revenue shall receive as compensation a salary
of four thousand dollars per annum, together with
his travelling expenses when travelling on business
of the State in connection with his department. The
clerical help in his office shall receive such com-
pensation as may be approved by the Governor;
the deputies employed by said department of rev-
enue shall each be paid salaries not to exceed two
hundred dollars per month, in addition to their
necessary expenses incurred while travelling in
the discharge of the duties required of them, such
expenses to be paid only upon a sworn itemized
statement for such expenses made by said deputy
and approved by the commissioner of revenue.
Acts 1923, Extra Sess., pp. 13, 15.
§ 1245(11). Bonds. — Before entering upon the
duties of their respective offices the commissioner
of revenue shall furnish bond to the Governor in
such sum as the Governor may require, not to ex-
ceed twenty thousand dollars, and each deputy
shall likewise give bond conditioned for the faith-
ful accounting for all moneys collected by him
with security approved by the Governor, in a sum
of not less than five thousand dollars, premiums
on said bonds to be paid by the State. Acts 1923.
Extra Sess., pp. 13, 15.
§ 1245(12). Reports and payments to be made
by commissioner of revenue and deputy commis-
sioner.— Said deputy commissioners shall report
to the commissioner of revenue at least every
week in detail as to amount collected by each and
the source from which the same has been collected,
and pay over to the commissioner of revenue the
amount shown in said report to have been col-
lected; and it shall be the duty of the commis-
sioner of revenue to report all such collections to
the Treasurer of the State once each week, and to
pay into the State Treasury at such times all
amounts that have been paid over to him by his
deputies, except automobile tag taxes and chauf-
feurs' license taxes, which shall be paid to the
Secretary of State. The failure on the part of said
commissioner to so account for the funds paid to
him by the deputies, or the failure on the part of
any deputy to promptly report and pay over to
the commissioner any moneys collected by him,
shall be a breach of their respective bonds, and in
the discretion of the Governor, terminate the term
of said commissioner or deputy. Acts 1923, Extra
Sess., pp. 13, 16.
§ 1245(13). Additional duties of commissioner
of revenue. — In addition to the duties already pre-
scribed for the commissioner of revenue in this
bill, he shall discharge such duties as may, from
time to time, be required of him by law. Acts 1923,
Extra Sess., pp. 13, 16.
§ 1245(14). Oath of commissioner of revenue.
— Said commissioner shall be required to take and
subscribe before the Governor an oath to faith-
fully and impartially discharge the duties of his
office, which oath shall be in addition to the oath
required of all civil officers. Acts 1923, Extra Sess.,
pp. 13, 16.
§ 1245(15). How salaries and expenses of de-
partment paid and manner of payment. — The
salary of the commissioner of revenue shall be pro-
vided for in the general appropriations bill, and a
fund for the payment of salaries of deputies and
clerks, as well as the expenses of the office and field
forces, shall be provided in the general appropria-
[ 272 ]
§ 1245(16)
REVENUE FROM OTHER SOURCES
§ 1248
tions bill. The commissioner of revenue shall make
requisition on the Governor, accompanied by de-
tailed statement covering salaries and expenses for
each month, and the Governor, upon approval of
such requisition, shall issue his warrant upon said
fund for the amount so approved; provided, that
until this can be done at the next regular session of
the legislature, the compensation and expenses of
the commissioner, and of the office force and the
field force, shall be payable out of the twenty-five
per cent, penalty imposed upon delinquent tax-
payers by Section 1245(8), and should the penalties
amount to more than the salaries and expenses of
the department, the amount in excess thereof shall
be paid into the State Treasury at the end of each
quarter. Acts 1923, Extra Sess., pp. 13, 17.
§ 1245(16). Duty of commissioner to prosecute
delinquents. — It shall be the duty of the commis-
sioner of revenue to direct prosecutions instituted
against any person or corporation subject to pay-
ment of any special taxes who may refuse to pay
said taxes upon demand of a deputy, and to require
the tax collector in the county of the residence of
such delinquent taxpayer to issue execution for the
amount of taxes shown to be due. Acts 1923, Extra
Sess., pp. 13, 17.
§ 1245(17). Relief of delinquents; time limit. —
After the passage of this Act, and the same is in
operation, should any individual, who is delinquent
in any of the taxes heretofore prescribed, volun-
tarily remit the amount of delinquency to the office
of the department, within thirty clays, he may be
relieved of the penalty prescribed. This, however,
not to be effective beyond thirty days from date
that office of department is in actual operation.
Acts 1913, Extra Sess., pp. 13, 17.
§ 1245(18). Annual reports of collections and
expenditures to General Assembly. — The depart-
ment of revenue shall be required to keep accurate
accounts of all collections and expenditures, and
shall submit a detailed report of same up to June
the first of each year to the General Assembly of
Georgia, at its regular sessions. Acts 1923, Extra
Sess., pp. 13, 18.
CHAPTER 4.
Revenue from Other Sources.
§ 1246. (§ 979.) State's revenue from other
sources. — The sources from which the State does
or may derive revenue, other than by taxation, are
as follows:
1. The net earnings of the Western and Atlantic
Railroad.
2. Dividends on the bank-stock owned by the
State.
3. Dividends or interest on the stock owned in
the Main Trunk Railroad.
4. Sale of State bonds at a premium.
5. The use by individuals of any other property
of the State.
6. Receipts from military or other claims against
the United States.
7. Receipts from assets of the Central Bank and
other old claims.
1 00
2 00
3 00
4 00
8. Receipts on claims from tax-collectors or
other officers for previous years, which were in
litigation or regarded as insolvent.
9. Dues for the sale of reverted or other land to
which the State may have the title.
10. Fees which the secretaries of the Governor,
the secretary of State, the treasurer, the comp-
troller-general, and librarian may receive for of-
ficial duties.
§ 1247. (§ 980.) Miscellaneous revenue. — All
the receipts from the resources mentioned in the
preceding section, all fees not specially awarded to
any particular officer, all fines and forfeitures not
otherwise disposed of, all moneys collected from
any source or on any account, to which the State
is entitled, not otherwise directed, must be paid in-
to the State treasury.
§ 1248. (§ 981.) Fees to be paid to treasurer.—
The fees which officers are allowed to charge, and
which, when collected, must be paid to the treas-
urer, are as follows:
1. Those by the secretaries of the Governor:
A grant for one hundred acres or under
$
A grant for over one hundred acres or
under three hundred acres
A grant for over three hundred acres or
under five hundred acres
A grant for over five hundred or under
one thousand acres
A grant for one thousand acres and over,
1 per cent, per acre for every addi-
tional acre.
Affixing the great seal of the State, by
order of the Governor, to anything of
a private nature
For every examination of records per
request
Administering oath of office to a salaried
officer and giving certificate thereof
Entering a testimonial
Attaching the seal of the Executive De-
partment
Certified copy of any record not more than
three hundred words
If more than three hundred words, per
one hundred words
2. Those by the secretary of State:
For a grant of land and affixing the seal
thereto, the same as is allowed the
secretaries of the Governor, accord-
ing to the number of acres.
For registering each grant $
For registering bond or other similar
writing
For a testimonial without the great seal..
For a testimonial with the great seal ....
Affixing the great seal to any other
paper
For a certified copy of a grant of land. . . .
For a certified copy of any other paper
not of more words
For more words, per hundred
For every search per request
2 00
50
1 00
50
1 00
1 00
10
50
1
00
1
00
2
00
1
00
1
00
1
00
10
[273]
§ 1248
STATE DEPOSITORIES
§ 1249
For granting charters to railroad com-
panies 100 00
For granting charters to insurance com-
panies 100 00
For granting charters to banking com-
panies ; 50 00
For granting charters to express com-
panies 100 00
For granting charters to canal com-
panies 100 00
For granting charters to telegraph com-
panies i 100 00
For granting charters to navigation com-
panies 100 00
Renewing charters to railroad companies
100 00
For granting charters to purchasers of
railroads 50 00
Renewing charters to insurance com-
panies 100 00
For renewing charters to banking com-
panies 100 00
For renewing charters to express com-
panies 100 00
For renewing charters to canal companies
100! 00
For renewing charters to telegraph com-
panies 100 00
For renewing charters to navigation
companies 100' 00
For amending charters of banking com-
panies 25 00
For amending charters of insurance com-
panies 25 00
For amending charters of railroad com-
panies 25 00
For amending charters of canal com-
panies 25 00
For amending charters of navigation
companies 25 00
For amending charters of express com-
panies 25 00
For amending charters of telegraph com-
panies 25 00
For recording trade-mark 1 00
For granting charters to street or sub-
urban railroad companies 50 00
For renewing charters of street or sub-
urban railroad companies 25 00
For appointing commissioners of deeds.. 5 00
3. Those by the treasurer:
For every extract or copy from any book,
minutes, or file of office, not more
than three hundred words $ 1 00
For every additional one hundred words
10
For every search by request 25
4. Those by the comptroller-general:
Every extract or copy from any book,
minutes, or file of office, not more
than three hundred words $ 1 00
For every additional one hundred words
10
For every search by request 10
5. Those by secretary of State or surveyor-
general:
For examining a plat $ 50
For recording a plat 1 25
For recording a plat of a town, township,
or village 10 00
Transmitting a caveat to Governor, and
attending thereon 1 00
Certified copy of any original record
not more than three hundred words.. 1 00
For every additional one hundred words
10
Certified copy of an original warrant .... 50
Issuing a certificate of record 50
For every search per request 25
6. Those by the librarian:
Certifying to the existence or contents of
any manuscript, map, or other docu-
ment entrusted to his keeping ....$ 1 00
Furnishing copies of his catalogue of
books 50
Acts 1894, p. 39.
CHAPTER 5.
State Depositories.
§ 1249.\ (§ 982.) State depositories provided
for in various cities. — The Governor shall name
and appoint a solvent chartered bank of good
standing and credit in each of the following cities
and towns, to wit: In Atlanta (nine deposito-
ries),1 Athens, Augusta, Columbus, Macon (four
depositories)2, Savannah, Rome, Americus, Al-
bany, Hawkinsville, Gainesville, Griffin, LaGrange,
Thomasville, Newnan, Cartersville, Dalton, Val-
dosta, Milledgeville, Darien, Dawson, Cordele,
Marietta, Richland, Millen, Warrenton, Carroll-
ton, Elberton, Monticello, Fort Gaines, Cedar-
town, Jackson, Harmony Grove, Thomaston, Cov-
ington, Blackshear, Waycross, Brunswick, For-
syth, Jefferson, Washington, Quitman, Green-
ville, Eastman, Moultrie, Toccoa (two deposito-
ries)3, Statesboro, Tifton, Lawrenceville, Doug-
las, Dublin, Madison, Tennille, Sylvania, McRae,
Cornelia, Fitzgerald, Bainbridge, Blue Ridge, Mt.
Vernon, Barnesville, Baxley, Hartwell, LaFay-
ette, Louisville, Montezuma, Pelham, Sanders-
ville, Swainsboro, Thomson, Winder, Calhoun,
Jesup, Lavonia, Donalsonville, Claxton, Ash-
burn, Nashville, Blakely, Dallas, Perry, Fort
Valley, Sparta, Reidsville, Comer, Fayetteville,
Ludowici, Senoia, Cochran, Conyers, Hazelhurst,
Lyons, Ocilla, Talbotton, Bremen, Butler, Cairo,
Franklin, Tallapoosa, Georgetown, Gibson, Jones-
boro, Jeffersonville, McDonough, Ringgold, Ro-
chelle, Pembroke, Chipley, Colquitt, Guyton,
Homerville, Jasper, Summerville, Douglasville,
Canton, Edison, Gordon, Alpharetta, Decatur,
Eatonton, Fairburn, Lumpkin, Reynolds, Rock-
mart, Shellman, Uvalda, Lincolnton, Sylvester,
Temple, Boston, Blairsville, Buford, Camilla,
Dahlonega, Ellaville, Irwinville, Kingsland, Man-
chester, Springfield, Woodbury, Wrightsville,
Metter, Rebecca, Vidalia, Cummings, Vienna,
Adel, Soperton, Glenwood, Greensboro, Morgan,
Pearson, Willacoochee, Alma, Alston, Arlington,
Ellijay, Monroe, Crawford, Collins, Crawford,
Waynesboro, Folkston, Alamo, and Lake-
[274]
§ 1250
STATE DEPOSITORIES
§ 1252
land, which shall be known as State deposi-
tories; provided, that, in each of said cities hav-
ing a population of not less than six thousand
and not more than fifteen thousand, according to
the United States census of 1920, the Governor
may name and appoint not more than two sol-
vent chartered banks of good standing and credit,
which shall be known and designated as State
depositories.
Provided further, That in each of said cities
in the State of Georgia having a population of
15,000 and over, according to the U. S. census
of 1920, the Governor may name and appoint
not more than three solvent, chartered banks of
good standing and credit which shall be known
and designated as State Depositories.
Provided, that in each city in Georgia having
a population of not less than 6,180 and not more
than 6,200, and also in each city in Georgia hav-
ing a population of not less than 11,554 and not
more than 11,560, the Governor may name and
appoint one additional depository to those now
provided by law and under the terms of the
general lav/ governing bank depositories. Acts
1803, pp. 24-29; 1888, p. 34; 1889, p. 54; 1890-1,
p. 67; 1892, pp. 54, 55; 1895, p. 21; 1896, p. 39;
1897, p. 22; 1898, p. 46; 1899, p. 27; 1900, p. 43;
1902, p. 42; 1903, p. 28; 1904, p. 56; 1906, pp. 34-
42; 1907, pp. ,53, 54; 1908, pp. 37-40; 1909, pp.
83-86; 1910, pp. 50-52; 1911, pp. 57-65; 1912, pp.
48-51; 1913, pp. 40-41; 1914, pp. 50-57; 1915, pp.
12-16; 1916, pp. 34-36; 1918, p. Ill; 1919, pp.
83-84; 1920, pp. 69-74; 1921, pp. 98-100; 1922, pp.
43-46; 1923, pp. 47, 54, 55; 1924, p. 49; 1925, pp.
82, 84, 86.
1. Acts 1901, p. 29, 1908, p. 37, 1911, p. 58, 1914, p. 49, 1918,
pp. 141, 142, 1920, p. 70, 1925, pp. 85, 86.
2. Acts 1912, p. 49, 1916, p. 1044.
3. Acts 1916, p. 35.
See 2 Cum. Dig. 637; 2 Enc. Dig. 282.
Editor's Note. — The last two provisos at the end of this
section were added by the acts of 1920 page 69 and 1923 page
54, respectively.
The first proviso in this section was amended once by the
acts of 1925 page 82 changing the population from 6500 and
over to not less than 6,000 nor more than 15,000. The acts of
1925 on page 83 also purported to amend this proviso so that
when amended it would read "in each of said cities having
a population of 9,000 and over, the governor may name and
appoint not more than three solvent chartered banks of
good standing and credit which shall be known and desig-
nated as state depositories." But the caption of this act
provided that the purpose was to change the number of
solvent chartered banks which may be so designated in
such cities from two to three and for other purposes. It
did not mention a change of population between 6,000 and
15,000 to 9,000 and over. Certainly the act does not effect
such a change, and it is probable that the change of the
number of banks was not effected.
§ 1250. (§ 983.) Selection of State depositories,
etc. — Said State depositories shall be appointed
for the term of four years from the date of their
appointment, and shall be liable to be removed
by the Governor in his discretion for any neglect
of their official duty, and they shall receive no
salary or fees from the State of Georgia. Acts
1878-9, p. 88; 1895, p. 22.
§ 1251. (§ 984.) Contracts as to interest to be
paid. — The Governor shall make with deposito-
ries the most advantageous contracts for interest
to be paid by them to the State for the use of
the State's money which may be deposited
therein, as hereinafter provided by this Chapter.
And in the event any depository so named shall
refuse to make satisfactory contract with the
Governor as to interest to be paid, he shall have
authority to remove such depository and appoint
another. In the event only one bank is situated
in any city designated as a legal depository, the
Governor can place deposits in the depository
nearest situated with whom a satisfactory con-
tract has been made: Provided, that no officer
of this State shall be allowed to receive any
commission, interest, or reward to himself from
any source for the depositing of such money in
such depositories, or for continuing such depos-
its. But the receiving of any such benefit by
any officer shall be felony. Acts 1878-9, p. 88;
1895, p. 22.
Interest After Receivership. — Where a bank has made a
contract with the State, whereby it agrees to pay her a
certain rate of interest on daily balances on deposit in
the bank, belonging to the State, and the bank subse-
quently becomes insolvent and a receiver is appointed to
take charge of its assets, the State can recover of the re-
ceiver the principal sum due her and interest at the con
tract rate to the date of the appointment of a receiver for
the assets of the bank, and also seven per cent, per an-
num as legal interest from the date of the receivership to
the date of payment. Central Bank, etc., Corp. v. State, 139
Ga. 54, 76 S. E. 587.
§ 1252. (§ 985.) Depositories to give bond. —
Each of said depositories shall, before entering
upon the discharge of their duties, by their
proper officers, execute a bond, with good and
sufficient securities, to be fixed and approved by
the Governor. Said bond shall be conditioned
for the faithful performance of all such duties as
shall be required of them by the General Assem-
bly or the laws of this State, and for a faithful
account of the money or effects that may come
into their hands during their continuance in of-
fice. Said bond shall be filed and recorded in
the executive office, and a copy thereof, certified
by one of the Governor's secretaries under the
seal of the Executive Department, shall be re-
ceived in evidence in lieu of the original in any
of the courts of this State; and said bonds, shall
have the same binding force and effect as the
bond required by law to be given by State
treasurers, and, in case of default, shall be en-
forced in like manner. In fixing the bond to be
given by a depository under this section, the
Governor shall so fix the same as to make it not
less than the amount of money entrusted to said
depository, and in no case shall a larger amount
of money be deposited in any bank than the
amount of the bond, and the Governor may at
any time require additional bond, if necessary, to
cover fully the amount deposited or intended to
be deposited in such bank. Acts 1903, p. 32;
1878-79, p. 88.
See §§ 218, 224.
See 2 Cum. Dig. 640, 2 Enc. Dig. 282.
Lien of State. — From the date of the execution of the
bond, under this section, the state has a lien on its prop-
erty for the amount thereof, extending to all its property,
tangible and intangible. Seay v. Bank, 66 Ga. 609.
The State has the right of priority of payment out oi
the assets of an insolvent State bank which prior to in-
solvency was a State depository, as against individual
depositors and creditors. Central Bank, etc., Corp. v. State,
139 Ga. 54, 76 S. E. 587; Seay v. Bank, 66 Ga. 609.
Where funds arising partly from oil-inspection fees, and
partly from private donations, had been turned over to
and were in the hands of trustees and where deposited by
the treasurer of the board of trustees in his own name, as
such, in a bank which was a State depository, and which
failed, this did not constitute such a debt due to the State
as created a lien in its favor under the law in reference to
r 275 ]
§ 1253
STATE DEPOSITORIES
§ 1258
State depositories. Knight v. State, 137 Ga. 537, 73 S. i,-
825
Execution.— Upon default of a depository the governor
may issue execution at once, in like manner as against a
defaulting treasurer. Seay v. Bank, 66 Ga. 609.
Effect of Insolvency at Date of Bond.— While it is the
duty of the governor to use his discretion in selecting a
chartered solvent bank, of good standing and credit, as
a state depository, the very object of requiring a bond is
to guarantee the solvency of the bank, and one who be-
comes a surety on such bond can not discharge himself on
the ground that the bank was insolvent. Mathis v. Mor-
gan, 72 Ga. 517. .
One who became a surety on the bond of a bank as a
state depository can not free himself from liability there-
on, on the ground that the governor selected the bank as
a solvent bank, and published it as one of the depositories,
and that the surety was induced to become such by this
fact, though the bank was not solvent at the time of -±s
selection, and the giving of the bond by it. Mathis v.
Morgan, 72 Ga. 517.
False Representations by Governor.— Where one who
signed the bond of a bank as a state depository resided in
the city where the bank was located, and had opportunity
to investigate as to the condition of the bank before sign-
ing the bond, but did sign and enabled the bank to re-
ceive money belonging to the state, he could not relieve
himself from responsibility on the ground of false represen-
tations made by the governor. Mathis v. Morgan, 72 Ga.
517.
When Purchasers Charged With Notice of Suretyship.—
It was the duty of . the president of the bank to make the
bond and furnish the sureties thereon, and having exe-
cuted it as president, and signed it as surety individually,
he could not be relieved from liability because the name
of one of the sureties which he furnished, and which ap-
peared on the bond after his own was signed, was forged,
and not signed by such surety; and purchasers of property
from him, who were charged with notice that he was a
surety, were subrogated to his position, and could make no
defence which he could not make. Colquitt v. Simpson, 72
Ga. 501.
Where purchasers of property from one who was the
president of a bank knew of his position, the law charged
them with notice that the bank was a state depository and
was required to give bond and security; and this was
sufficient to put them on inquiry whether their vendor was
not himself one of the sureties which he had, as president,
to procure; and they w>ere not purchasers without notice
of the state's lien. Colquitt v. Simpson, 72 Ga. 501.
§ 1253. (§ 986.) When Governor may appoint
new depositories. — Whenever from any cause
the State depositories in any locality shall cease
to operate, it shall be the duty of the Governor
to make another appointment, either to fill out
the unexpired term or to enter upon a new term
of four years, as the case may be. Said newly
appointed depository shall have all the powers,
perform all the duties, and be subject to all the
liabilities prescribed for State depositories, and
shall furnish a like bond in which each of the
sureties shall bind themselves for the entire
amount of the bond. In selecting any deposi-
tory, the Governor shall not be confined to
banks chartered by the State, but may, if he
deem it best, select any bank chartered under
the national-bank act of the United States, do-
ing business in this State. Acts 1882-3, p. 138.
§ 1254. (§ 987.) Treasurer to advise Governor
of financial condition of State depositories. — It
shall be the duty of the treasurer to keep ad-
vised, and to keep the Governor advised from
time to time, of the financial condition of the
various State depositories, as well as of the
financial condition and standing of the securi-
ties on the bonds of such depositories, and if at
any time they should become satisfied of the in-
solvency of any of the depositories, or that the
affairs of any of said depositories are in an em-
[2
barrassed condition, it shall be the duty of the
Governor to direct the treasurer to withdraw the
money of the State from such depository, and
the Governor may declare the position vacant
and may proceed to appoint another bank in
the same locality to act as such depository for
the unexpired term under the rules and regula-
tions prescribed by law. In case the Governor
should be advised of the insolvency of the se-
curities on the bond of any of said depositories,
it shall be his duty to notify such depository to
strengthen said bond, and if at the end of ten
days said bond is not strengthened, the Gov-
ernor shall declare said office vacant, and pro-
ceed to fill the same by new appointment. Acts
1882-3, p. 138.
§ 1255. (§ 988.) Sureties, how relieved. — Any
surety on the bond of a State depository, desir-
ing to be relieved from said bond, may give no-
tice in writing to the Governor of such desire,
with the reasons therefor, and the Governor
shall have authority, in his discretion, to relieve
such surety: Provided, the consent of the co-
sureties be first obtained in writing: And pro-
vided further, that the principal will furnish a
new surety to take the place of the surety re-
lieved, who will assume all his liabilities for
past and future transactions. Acts 1882-3, p.
138.
See note to § 1252.
§ 1256. (§ 989.) Amount of State's deposit
limited to amount of bond of depository. — The
treasurer of this State shall not deposit at any
one time, or have on deposit at any one time in
any one of the depositories of this State for a
longer time than ten days, a sum of money be-
longing to this State that exceeds the bond
given by said depository to the State. The
treasurer shall check from any depository the
amount of the State's money that said deposi-
tory holds in excess of its bond, and pay the
sum into the treasury: Provided, that a State
depository may be allowed to hold a sum
greater than fifty thousand dollars, but not in
excess of one hundred thousand dollars, upon
such depository giving a new bond to cover the
maximum amount to be deposited with it, and
when such new bond has been executed and de-
livered to the Governor the old bond shall be
discharged and surrendered, and whenever a
national bank is selected as a State depository
the amount of the bond shall be double the
amount of money to be deposited with it. The
bond to be made by the State depositories may
be a personal bond or may be made by a de-
posit with the State treasurer of United States
bonds or Georgia State bonds, or either one or
both of said methods. Acts 1893, p. 135.
§ 1257. (§ 990.) Monthly statements of de-
positories.— Depositories shall render to both the
Governor and the treasurer such monthly state-
ments as they are now required by law to make
to the treasurer.
§ 1258. (§ 991.) Governor authorized to sell
bonds of defaulting bank. — Whenever any bank
which has been made a State depository, and has
deposited bonds, shall fail to faithfully perform
76 ]
§ 1259
PUBLIC DEBT
§ 1270
such duties as shall be required of it by the Gen-
eral Assembly or the laws of this State; or shall
fail to faithfully account for all the public
moneys or effects that may have come into its
hands during its continuance in office, the Gov-
ernor shall sell a sufficiency of said bonds to re-
imburse the State the amounts due by the State
depository on account of such default. Acts
1889, p. 177.
§ 1259. (§ 992.) Funds subject to check, etc.
— Said depositories shall hold all funds received
by them for and on account of the State, subject
to the check or order of the State treasurer, and
shall render to the State treasurer, on the first
day of every month, a statement of the money
on hand belonging to the State, showing the
time when, and from whom, received, together
with a statement and balance-sheet showing the
<:xact condition of its account with the State
treasurer on that day; and whenever any tax-
collector shall make a deposit in said deposito-
ries, they shall give to said tax-collector a re-
ceipt, which shall be a good and sufficient
voucher to said collector, and they shall mail to
the State treasurer a duplicate of the receipt so
given to said tax-collector, and so soon as the
treasurer shall receive said duplicate receipt, he
shall issue his certificate in favor of the deposit-
ing tax-collector, and transmit the same to the
comptroller-general, who shall pass the amount
therein mentioned to the credit of said tax-col-
lector, and at once mail to him a receipt for said
amount. Acts 1878-9, p. 88.
§ 1260. (§ 993.) Tax-collectors may pay funds
at depositories. — The Governor shall, at the time
of appointing the State depositories, make a list
of the counties whose tax-collectors shall be in-
structed to pay State funds into each depository,
and said tax-collectors shall pay into no other
depository than the one named by the Governor;
and the Governor shall also make known the ap-
portionment of counties by a proclamation duly
published in the city where such depository is lo-
cated, giving the name of the depository, and the
names of the counties whose tax-collectors shall
be instructed to pay into said depository all
moneys collected by them for and on account of
State taxes. Acts 1878-9, p. 88.
§ 1261. (§ 994.) Tax officers may also pay at
treasury. — Nothing contained in this Chapter
shall be construed to prevent tax-collectors from
paying State funds directly into the State treas-
ury. And it shall not be lawful for the State
treasurer to deposit such funds in any bank or
other depositor}- except those established under
this Chapter, and he shall, by check or other
proper means, draw from said depositories such
amounts only, and at such times only, as the ne-
cessities of his department may require. Acts
1878-9, p. 88; §§ 1215, 1221.
§ 1262, (§ 995.) Treasurer's bond not affected.
— Nothing contained in this Chapter shall be
held, taken, or construed as affecting, altering, or
changing the provisions of existing laws as to
the bond of the State treasurer. Acts 1S7S-9,
p. 90.
[27
NINTH TITLE.
Public Debt.
CHAPTER 1.
Public Debt.
§ 1263. (§ 996.) Bonds and certificates, how
authenticated.— All bonds or certificates of the
State for the State debt must be authenticated
by the signature of the Governor, the secretary
of State, and stamped with one side of the seal
of the State, to wit, that side which has on it the
motto, "Wisdom, Justice, and Moderation."
§ 1264. (§ 997.) Amount of, and how payable.
— They shall be, unless otherwise specially or-
dered by the General Assembly, in sums of five
hundred and one thousand dollars each, payable
in twenty years after their date, bearing interest
at six per cent, per annum, which interest is
payable semi-annually by coupons thereto an-
nexed.
As to issue of certificates in the nature of bonds which
have matured and are held by the University, see § 1395.
§ 1265. (§ 998.) Coupons, how signed, and
paid. — Was impliedly repealed by following sec-
tion.
§ 1265(1). Coupons need not be signed by
State Treasurer. — -The coupons that may be at-
tached to any bond of the State need not be
signed by the State Treasurer in order that the
same ma}- be paid upon presentation. Acts 1914,
p. 81.
§ 1266. (§ 999.) When unsigned, not to be
paid. — Was impliedly repealed by following sec-
tion.
§ 1266(1). Payable without presentation of
bond. — Any such coupons issued by authority of
the State may be paid by the duly appointed rep-
resentative thereof, without being accompanied
by the bond to which it belongs. Acts 1914.
p. 81.
§ 1267. (§ 1000.) Public debt, where paid —
The principal and interest shall be made payable
at such place in this State or other of the United
States as the Governor may in his discretion di-
rect, and he may direct the principal payable at
one place and the interest at another.
§ 1268. (§ 1001.) Bonds payable out of the
State may be exchanged. — WThere citizens of
this State become possessed of State bonds pay-
able out of this State, the Governor may give in
exchange for them bonds payable herein: Pro-
vided, there is no loss to the State by the ex-
change, and the expense thereof, if any, is borne
by the holders of the bonds.
§ 1269. (§ 1002.) Bonds taken up not to be
reissued. — When such exchange occurs, the
original bonds so taken up shall not be reissued
on any account whatever, unless specially pro-
vided for by the General Assembly.
§ 1270. (§ 1003.) Lost bonds or coupons —
When any bond and coupon, or coupon, shall be
lost, mutilated, or destroyed, the Governor may
issue to the holder a new bond, with proper cou-
pons attached; or if coupon alone be lost, muti-
7]
§ 1271
BOND ISSUE TO PAY PORTION OF PUBLIC DEBT
§ 1280(1)
lated, or destroyed, be may direct the treasurer
to issue new coupons in lieu of such coupons as
may be lost, mutilated, or destroyed. Acts 1878-
9, p. 57.
§ 1271. (§ 1004.) New bonds, how obtained.
— When mutilated, the mutilated bond, or cou-
pon, must be surrendered; when lost or de-
stroyed, the holder must make affidavit of such
fact, that they were his, in his own or some
other right, at the time of the loss or destruc-
tion; if lost, that he has made diligent search
without avail, and despairs of ever finding them.
Acts 1878-9, p. 58.
§ 1272. (§ 1005.) Bond and surety to be given.
— Having made such affidavit, he shall then, be-
fore receiving the new bond, or coupon, give
bond and surety to the Governor in a sum dou-
ble the amount of the bond and coupon, or cou-
pons alone so issued, as the case may be, condi-
tioned to save the State harmless on account of
issuing such new bond and coupon, or coupons
only, as the case may be.
§ 1273. (§ 1006.) New bonds in lieu of those
stolen. — The Governor is authorized to issue a
new bond or bonds in lieu of a bond or bonds of
the State which may have been stolen, upon the
holders making affidavit as provided for: Pro-
vided, said holders may have given or shall give
twelve months notice of the loss or theft of said
bonds, fully describing the same, at the treasury
of the State, at least twelve months prior to the
time when said new bonds may be or shall be
issued: Provided, that no new bond shall be is-
sued for or in lieu of any lost or stolen bond
until the owner of such bond shall first give to
the State a bond with security, to be approved
by the Governor for the time being, fully in-
demnifying the State against the payment of
the bond so lost or stolen. Acts 1866, p. 18.
As to the affidavit, see § 1271.
§ 1274. (§ 1007.) Bonds, etc., when paid, how
disposed of. — When bonds or coupons are paid,
they must be stamped as paid, and preserved in
the treasurer's office with the same care as the
funds of the State.
§ 1275. (§ 1008.) Appropriations for bonded
debt. — An amount of money stands annually
appropriated sufficient to pay the principal and
interest of any bonded debt of the State becom-
ing due during the year. Any surplus in the
treasury after allowing for all the annual charges
against it, including such claim, is likewise ap-
propriated to the same object.
§ 1276. (§ 1009.) Governor may apply surplus.
— Whatever amount may remain from the ap-
propriations contained in the two preceding sec-
tions, more than enough to pay such debts, may
be applied, by the order of the Governor, to re-
deeming any particular class of bonds not due,
as he may order, and which, in his judgment, it
is to the interest of the State to prefer and an-
ticipate.
§ 1277. (§ 1010.) Bonds redeemed before due.
— All bonds redeemed before maturity must be
by the Governor annually reported to the Gen-
eral Assembly, particularly described, and the
terms upon which they were so redeemed.
CHAPTER 2.
Bond Issue to Pay Portion of Public Debt.
§ 1280(1). Maximum issue; delivery; denomi-
nation; interest; maturity, etc. — The Governor is
hereby authorized and empowered to issue ne-
gotiable bonds of the State in an amount not to
exceed the sum of One Hundred Seventy-four
Thousand Dollars, ($174,000.00) par value, or so
much thereof as may be necessary when added
to the funds now in the Treasury from the sale
of public property of the State will make a to-
tal of Two Hundred Seven Thousand Dollars,
($207,000.00) and to negotiate such bonds for
the purpose of raising money to pay off that
portion of the principal of the public debt falling
due January 1, 1922, amounting to Two Hun-
dred Seven Thousand Dollars, ($207,000.00).
Said bonds are to be issued and negotiated at
such times and in such amounts not exceeding
in the aggregate the sum of One Hundred Sev-
enty-four Thousand Dollars, ($174,000.00), as
§ 1278. (§ 1011.) Registration of State bonds.
— Any holder of the bonds of this State, whether
in his own right or in a fiduciary capacity, may
have the same registered at the office of the
State treasurer upon application and presentation
of said bonds to the treasurer as hereinafter pro-
vided.
§ 1279. (§ 1012.) Book of registration. — It
shall be the duty of the treasurer to procure and
provide, at the expense of the State, a suitable
book or books in which, upon application and
presentation of a bond or bonds as aforesaid, he
shall enter, in a manner to be of easy and ready
reference, a description of said bond or bonds,
giving number, series, date of issue, denomina-
tion, by whom signed, and such other data as
may be necessary for the ready identification
thereof, together with the name of the person
registering the same, the character or capacity
in which such person holds said bond or bonds,
and for whose benefit the same is or are regis-
tered. And the said treasurer shall enter upon
each and every bond so registered, as aforesaid,
the date of said registration, by whom registered,
and in what character or capacity, and shall sign
said entry officially; and shall cut, with a stamp
prepared therefor under the direction of the
treasurer, the letter "R" in the face of said
bonds so registered, and such person or persons
having such bond or bonds so registered shall
be required to pay to the treasurer the sum of
fifty cents for each bond so registered, which
said registry fee shall be paid into the treasury
by the said treasurer.
As to bond book, see § 229.
§ 1280. (§ 1013.) Registered bonds, how trans-
ferred.— None of said bonds shall, after such
registration, be negotiable by delivery, but said
bonds may nevertheless be negotiated or trans-
ferred by the person in whose name they are
registered, by reregistration in the name of the
person to whom the same are to be transferred
or negotiated.
As to negotiability of bonds, see § 4274. As to bonds
held by the trustees of the University, see § 1395.
[ 278 ]
§ 1280(2)
BOND ISSUE TO PAY PORTION OF PUBLIC DEBT
§ 1280(6)
the Governor may, in his discretion, see proper,
and in order to meet the wants of the State.
The Governor may make such temporary
binding agreement to deliver such bonds as may
be necessary, and the bonds, signed by the Gov-
ernor exercising the functions of that office,
whether prior to or after the first day of Janu-
ary, 1922, shall be binding and of full force and
effect and such binding force shall equally be-
long to the other officers required to sign such
bonds who may be in office at the time the Gov-
ernor signs such bonds. Said bonds are each to
be of such varying denomination as the Gov-
ernor may see proper to fix, and shall bear inter-
est at the rate not exceeding 5^% per annum,
the interest payable semi-annually, the principal
of such bonds to mature Jul}' 1, 1945. The
yearly installments to be either varying or uni-
form amounts as the Governor may direct, and
shall be payable, both principal and interest at
the office of the Treasury of the State, in the
City of Atlanta, Ga., and also in the State of
New York, at such place as the Governor may
elect. Said bonds shall be signed by the Gov-
ernor and Secretary of State, and countersigned
by the Treasurer of said State and on its behalf.
To each of said bonds shall be attached cou-
pons for the interest, and upon each coupon
shall be engraved, printed, or lithographed the
signature of the Treasurer of the State for it
and on its behalf. Each coupon may be re-
deemed at the Treasury or place designated for
payment, without being accompanied by the
bonds to which they belong. The bonds shall
not be sold or disposed of for less than their par
value. Acts 1921, pp. 235, 236.
§ 1280(2). Publication of issue; bids. — In or-
der to facilitate the sale and negotiation of such
bonds the Governor, exercising his discretion as
to terms and conditions, may give notice by
publication in such place or places and for such
length of time as he may see proper, of his in-
tention to issue said bonds and he may invite
bids for the same, and the lowest rate of interest
at which the bidder will take such bonds, or any
portion thereof, provided nothing herein pro-
vided shall be held or construed to limit the
Governor to this method of sale and negotia-
tion, but he may reject any and all bids made
in response to such published notice, and in his
discretion may proceed to readvertise as often
as he sees fit, and may proceed to dispose of
such bonds or such portion as he deems ad-
visable by private negotiation, if in his judg-
ment the best interest of the State shall demand
such a course. Acts 1921, pp. 235, 237.
§ 1280(3). Premiums.— If said bonds be sold
at a premium the entire amount of such pre-
miums shall be added to and become a part of
the sinking fund, devoted to and to be used
solely and exclusively in payment and reduction
of the principal of the public debt of the State,
or such premium may be applied and used to
lessen the amount of bonds sold, in the discre-
tion of the Governor. Acts 1921, pp. 235, 237.
§ 1280(4). Issue of registered bonds; interest;
form of transfer. — The Governor is hereby au-
thorized to issue upon such terms and under
such regulations as he may from time to time
prescribe, not inconsistent with existing laws,
registered bonds, in lieu of and in exchange for
any bonds authorized to be issued in pursuance
of the provisions of this Act. Such registered
bonds shall be similar in all respects to the
bonds authorized to be issued by the provisions
of this Act except they shall not be coupon
bonds, and the principal and interest shall be
payable only at the Treasury of the State. Said
registered bonds shall bear interest at a rate not
exceeding \Sl/2 per centum per annum, payable
semi-annually. Said bonds shall be transferable
on the books of the Treasurer of the State, in
person or by power of Attorney, the form of
which shall be as follows:
For value received assign to
the within registered bonds of the State of Geor-
gia, Number of the denomination of
$ and hereby authorize the
transfer thereof on the books of the Treasurer
of the State of Georgia. Dated State of
County of Signature of as-
signor, town of
Personally appeared before me the above
named assignor. Known or proved to be the
'. . payer of the within bond and signed
the above transfer and acknowledged the same
to be his free act or deed.
Witness my hand, official signature and seal
this day of , 19 Said power
of Attorney shall be executed in the presence of
any Judge of a Court of Record in this State, a
Justice of the Peace or Notary Public, when the
power of Attorney is executed in this State, and
if executed out of the State, then in the pres-
ence of any Commissioner of Deeds for the
State of Georgia, resident in the State of the
Assignor, or Ordinary or Judge of the Probate
Court, or like officer of the county of the resi-
dence of the assignor. Acts 1921, pp. 235, 237.
As to exchange of bonds, see § 1268. As to transfer of
registered bonds, see § 1280.
§ 1280(5). Constitutional provisions to be en-
dorsed on bonds. — There be endorsed on each of
the bonds issued in pursuance of this Act the
following extracts from the Constitution of this
State, viz:
"The proceeds of the sale of the Western and
Atlantic Railroad held by the State and any
other property owned by the State whenever
the General Assembly may authorize the sale of
the whole or any part thereof, shall be applied
to the payment of the bonded debt of the State,
and shall not be used for any other purpose
whatever, so long as the State has any existing
bonded debt. The General Assembly shall raise
by taxation each year, in addition to the sum re-
quired to pay the public expenses and interest
on the public debt, the sum of One Hundred
Thousand Dollars, which shall be held as a sink-
ing fund to pay off and retire the bonds of the
State which have not yet matured and shall be
applied to no other purpose whatever." Acts
1921, pp. 235, 238. .
As to sinking fund, see §§ 914, 6571.
§ 1280(6). Bonds not taxable.— All bonds,
whether coupon or registered bonds, issued un-
der the provisions of this Act, shall be exempt
from all taxation by or under the authority of
this State, or any municipal, county or authority
whatsoever. Acts 1921, pp. 235. 239.
279 ]
§ 1281
PUBLIC PROPERTY
§ 1288
TENTH TITLE.
Public Property.
CHAPTER 1.
Public Biddings.
§ 1281. (§ 1014.) Buildings owned by the State.
—The buildings and those appurtenant thereto be-
longing to the State, are — #
The State capitol, at Atlanta.
The Governor's mansion, in the city of Atlanta.
The State arsenals at Milledgeville and Savan-
nah, donated by Act of 1870; the Deaf and Dumb
Asylum at Cave Spring; the Georgia State Sani-
tarium near Milledgeville; the penitentiary at
Milledgeville; the buildings of the Western and
Atlantic Railroad.
The old capitol and Executive mansion at
Milledgeville, with the ground attached to each.
Acts 1870, pp. 494, 495, Acts 1870, pp. 503, 455.
§ 1282. (§ 1015.) Partly owned by the State.—
The State has an interest in —
The University of Georgia, at Athens.
The Asylum for the Blind, at Macon.
The buildings of the Technological School and
of the other branch colleges.
§ 1283. (§ 1016.) Library, .arsenals, and other
property. — The State owns the library at the capi-
tol, the furniture and contents of her various
public buildings, and the public arms, munitions,
and accoutrements of war in her arsenals and in
the charge of her several volunteer companies.
§ 1284. (§ 1017.) Use of capitol.— The use of
the capitol building and grounds shall be limited
to the legitimate departments of 'this State, and to
State and national political organizations, and the
keeper of public buildings and grounds shall not
grant the use of either the capitol or grounds for
any other uses. Acts 1892, p. 95; 1882-3, p. 18;
1884-5, p. 27, 1888, p. 14.
§ 1284(1). Salary of Keeper of Public Buildings.
— The salarjr of the Keeper of Public Buildings
and Grounds shall be the sum of $2,500.00 per
annum. Acts 1919, p. 284.
CHAPTER 2.
Land Owned by the State.
§ 1285. (§ 1018.) Lands owned by the State.—
The lands heretofore specially reserved to the
State are —
The lands known as the "Mcintosh Reserve,"
on which is situated the Indian Spring; a quantity
of land on Flint river, opposite the Old Agency;
one mile square on the Chattahoochee river at
Mcintosh Ferry; five miles square on Chatta-
hoochee river at Cusseta Falls, including the falls;
all islands contained in any of- the navigable waters
not disposed of, and the western bank of the
Chattahoochee river to high-water mark, where it
forms the boundary between Georgia and Alabama;
the lots whereon all the public buildings of the
State are erected; the fractional parts of surveys
created by the different land divisions which are not
granted or otherwise disposed of; all lands omitted
to be surveyed, granted, or sold; parcels of land in
certain cities, to wit:
In the city of Atlanta.
In the city of Columbus.
In the city of Chattanooga.
The land and buildings of the Confederate
Soldiers Home of Georgia. Acts 1889, p. 171.
As to sale of state's property to pay bonded debt, see
§ 6570. As to land lotteries, see §§ 3811-3816. As to
boundaries of the state, see § 16.
CHAPTER 3.
Stock Owned by the State.
§ 1286. (§ 1019.) Stock owned by the State.—
The State owns the following stock:
In the Georgia Railroad and Banking Company,
one hundred and eighty-six shares.
In the Southern and Atlantic Telegraph Com-
pany, indorsed by Western Union Telegraph
Company, four hundred and forty shares.
CHAPTER 4.
The Western and Atlantic Railroad and its
Government.
§ 1287. (§ 1020.) Western and Atlantic Rail-
road property of the State. — The railroad com-
munication from Atlanta, in Fulton county to
Chattanooga, on the Tennessee river, is the prop-
erty of this State exclusively, and shall be known
as the Western and Atlantic Railroad. Acts 1889,
p. 362. 1892, p. 101. 1895, p. 99.
Cross References. — As to when the state is bound by a
statute, see § 3. As to limitation of powers of public offi-
cers, see § 303. As to attorney general as agent of railroad,
see § 257.
Editor's Note. — Prior to 1850, the State of Georgia, as
sole owner, constructed a line of railroad between Chatta
nooga, in the State of Tennessee, and Atlanta. This road
was know and designated as the "Western & Atlantic Rail-
road." To reach the Tennessee river it became necessary
to construct a few miles of the road within the State of
Tennessee. The Tennessee legislature, in 1838, authorized
this extension.
By the Georgia Acts of 1889, p. 362, a law was passed
providing for the lease of this railroad, and for cases con-
struing this leasing act reference should be made to West-
ern, etc., R. Co. v. Roberson, 61 Fed. 592 and State v.
Western, etc., R. Co., 136 Ga. 619, 71 S. E. 1055.
The lease effected under the Act of 1889 expired in 1919.
and the Governor in 1915 in order to meet this situation,
called a special session of the legislature. By the Acts
of 1915 (Extraordinary Session), p. 119, a commission was
created to re-lease the property. The property was leased
by this commission to the Nashville, Chattanooga and St.
IyOuis Railroad Company, a Tennessee corporation.
As the Acts of 1920, p. 1799, in discharging the commis-
sion appointed in 1915, declares that the general supervi-
sion over the railroad be vested in the state railroad com-
mission, it would seem that §§ 1288-1336 of the Code of
1910, providing for the management of the road through a
superintendent, etc., are rendered nugatory, during the con-
tinuation of the lease.
"The relation of the State to the lessee of its railroads
is that of landlord and tenant. The lessee has but a
usufructuary interest in the possession of the leased prem-
ises, for the specific uses named therein. State v. West-
ern, etc., R. Co., 136 Ga. 619, 625, 71 S. E. 1055. Because of
this relation any condemnation proceeding must be insti-
tuted jointly against the State and the lessee, unless the
State gives to the telegraph company permission to oc-
cupy its railroad without condemnation, which it has not
done." Western, etc., R. Co. v. Western Union Tel. Co.,
138 Ga. 420, 430, 75 S. E- 471.
§ 1288. (§ 1021.) Relation of the State to the
Western and Atlantic Railroad. — The State occu-
[ 280 ]
1289
WESTERN AND ATLANTIC RAILROADS; ITS GOVERNMENT
§ 1296
pies the same relation to said road, as owner, that
any company or incorporation does to its railroad,
and the obligations of the State to the public con-
cerning said road, and of the public to said road,
are the same as govern the other railroads of this
State, so far as is consistent with the sovereign
attributes of this State, and the laws of forte for
its conduct.
§ 1289. (§ 1022.) Road laws and penal laws
apply to Western and Atlantic Railroad, proviso.
— All the public-road laws and penal laws touch-
ing the railroads of this State, whether to obligate
or protect, apply to the State road, unless specially
excepted, or some other provision is prescribed in
lieu of some one or more thereof.
§ 1290. (§ 1023.) Laws applicable to Western
and Atlantic Railroad.— All laws of force regulat-
ing the liability of railroad companies in this State,
for damages done by the running of locomotives,
cars, and other machinery, are hereby declared to
apply equally to the Western and Atlantic Rail-
road; and in the bringing of all suits against the
Western and Atlantic Railroad, the same shall be
regulated by the laws in existence on that subject
at the time of the adoption of this Code. Acts
1862-3, p. 182.
§ 1291. (§ 1024.) Preceding laws of force.— All
laws heretofore enacted having a special or local
application to said road, and in force at the time of
the adoption of this Code, are kept in force, unless
herein repealed expressly or by implication. Acts
1857, p. 62.
§ 1292. (§ 1025.) Superintendent appointed by
Governor. — The principal officer of said road shall
be styled the superintendent, who is appointed by
the Governor, and holds his office during his term,
unless sooner removed at his. pleasure. The salar}^
of the superintendent shall be five thousand dol-
lars per annum. Acts 1851-2, p. 110. 1865, p. 249.
§ 1293. (§ 1026.) To give bond and security. —
Before entering on the duties of his office, he shall
give bond and security, to be approved by the
Governor, in the sum of twenty thousand dollars,
which shall be filed in the office of the comptroller-
general and recorded therein.
§ 1294. (§ 1027.) To take oath.— He shall also,
at the same time, besides the oath required of all
civil officers, take and subscribe before the Gover-
nor the following oath, which shall be filed in the
Executive office: "I, , swear that I will faithfully
and impartially ..perform all the duties of my office;
that I will make no appointment nor do any act
from fear, favor, reward, or hope thereof, but in all
things I will be governed solely with regard to the
interest of the State of Georgia, and in the dis-
charge of my duties I will neither make, nor per-
mit to be made, any discrimination, unless so di-
rected by legislative authoritj^, in favor or against
any railroad company, or other persons or parties
having business connections with, or relations to.
said road. So help me God."
§ 1295. (§ 1028.) Powers of Superintendent. —
The superintendent has authority —
1. To conduct all the operations of said road
connected with its repairs, equipment, and man-
agement, including its financial affairs.
2. To appoint or remove all the subordinate of-
ficers, subject to the approval of the Governor, ex-
cept the auditor and treasurer.
3. To fix the rate of passage and freight, and to
make all necessary arrangements touching such
rates and other business with other railroads.
4. To contract for and purchase machinery, cars,
materials, work-shops, and all other contracts
necessary for the general working and business of
said road, not exceeding three thousand dollars,
and over that amount subject to the approval oi"
the Governor in writing.
5. To make contracts with the government of
the United States, with the consent of the Gover-
nor, for the transportation of the mails over said
road.
6. To arrange the schedules for running trains
at such times, either by day or night, as he may
deem expedient.
7. To settle all claims against said road, with the
approval of the Governor.
8. To sue officially for any claim due the State
on account of said road, and defend all brought
against the road.
9. To make all necessary rules for the proper
conduct of the business of the road and the en-
forcement of discipline.
10. To impose penalties for a violation of said
rules and for breaches of duty by all persons in the
employment of the road.
11. To see that the books and accounts of the
road are so kept as at all times to show accurately
its fiscal affairs.
12. To have settlements weekly with all fiscal
agents of said road for all money received by
them, by himself or through some authorized per-
son, and to discharge them for neglecting or re-
fusing to do so.
13. To fix the compensation of all employees
of said road, with the approval of the Governor,
whose compensation is not fixed by law.
14. To draw his warrant on the treasurer in
favor of claimants according to the law.
15. To sue and cause all moneys belonging to or
collected on account of the road to be paid
promptly to the treasurer.
16. To exercise a general supervision over all of-
ficers, agents, and employees under his charge, and
see that they strictly comply with all the requisi-
tions of the law.
17. To make out and transmit to the Governor a
quarterly statement exhibiting the receipts and
expenditures of the road, and once every year a
full statement of all the transactions of the road in
detail, which report shall be published in one or
more of the public gazettes at the city of Atlanta.
Acts 1851-2. p. 111.
§ 1296. (§ 1029.) Rules to be recorded, printed,
and furnished to officers. — The rules adopted by
the superintendent for the government of said
road shall be recorded in a book kept for that pur-
pose, shall be printed, and posted in a conspicuous
[281]
§ 1297
WESTERN AND ATLANTIC RAILROADS; ITS GOVERNMENT
§ 1312
part of his office, and copies placed in the hands of
each officer of the road, who shall also be promptly
supplied with copies of any alterations thereof.
Acts 1851-2; p. 111.
§ 1297. (§ 1030.) Force of said rules. — Such
rules shall have the force and effect of law when
necessary to carry into full effect any law in re-
gard to said road and to improve its organization,
when not inconsistent with the law.
§ 1298. (§ 1031.) Suits against Western and
Atlantic Railroad. — All suits against the road must
be brought against the superintendent in his of-
ficial capacity, in the county of Fulton, where the
office of said road is located, except in those cases
of claims where, by the law, other roads are al-
lowed to be sued elsewhere; but under no circum-
stances are suits against such road to be allowed
against such road, its officers or agents, in the
State of Tennessee, beyond the right, if any, that
may exist under the authority granted to this
State to extend said road into Tennessee. Acts
1851-2, p. 111.
§ 1299. (§ 1032.) Demand necessary before suit
brought. — No suit shall be brought against the
superintendent until a demand has been made up-
on him for payment, accompanied by a statement
of the nature of the claim, and ten days shall be al-
lowed the superintendent to pass upon such claim
before suit shall be brought.
§ 1300. (§ 1033.) Books of road prima facie
evidence.— In suits pending or to be brought by or
against said road, the books of said road shall be
prima facie evidence of what they contain, perti-
nent to the points in issue. Acts 1858, p. 64.
§ 1301. (§ 1034.) Its debtors public debtors.—
All debtors to said road are as debtors to the State
or public, and when any question arises warrant-
ing it, the right or obligations of both parties are
to be determined upon by the laws governing
such relation. Acts 1858, p. 64.
§ 1302. (§ 1035.) Treasurer, by whom ap-
pointed.— The Governor shall appoint an officer
for said road, who shall be styled the treasurer,
who holds his office for the same time and term
that the superintendent does. Acts 1851-2, p. 112.
§ 1303. (§ 1036.) His oath.— Before entering
on the duties of his office, besides the oath required
of all civil officers, he shall take and subscribe be-
fore the Governor the following oath: "I, , do
swear that I will faithfully and diligently receive,
keep, and disburse the funds of the State road ac-
cording to law, in my capacity as treasurer, and do
all other acts that are or may be required of me by
law as treasurer of said road, to the best of my
skill and knowledge. So help me God." Acts 1851-
2, p. 112.
§ 1304. (§ 1037.) Bond and security. — He shall
at the same time give bond and security, to be ap-
proved by the Governor, in the sum of one hun-
dred thousand dollars. Said bond and oath of of-
fice shall be filed and recorded as the superinten-
dent's.
§ 1305. (§ 1038.) Treasurers duties. — It is the
duty of treasurer —
1. To take custody of all funds appertaining to
the road, to receive all moneys from officers or
agents holding the same, and receipt them.
2. To receive all such sums as may be appro-
priated by law for the use of the road.
3. To pay all warrants drawn by the superin-
tendent in the terms of the law.
4. To pay the State treasurer monthly all bal-
ance in the treasury after paying all the current ex-
penses of the road and other lawful claims upon it,
and to take his receipt for the same, retaining such
amount as the superintendent may direct.
5. To keep a book or books to enter all his re-
ceipts and payments and, other official transactions.
6. To make a quarterly statement to the super-
intendent of the receipts and disbursements of his
office, which shall be puiblished with the superin-
tendent's report to the Governor.
7. To discharge such other duties as the laws do
or may require. Acts 1851-2, p. 112.
§ 1306. (§ 1039.) Auditor appointed by Governor.
— The Governor shall appoint an officer for said
road who shall be styled the auditor. Acts 1851-2,
p 112.
§ 1307. (§ 1040.) His oath.— Before entering on
the duties of his office, besides the oath required
of all civil officers, he shall take and subscribe
before the Governor the following oath: "I, ,
swear that I will promptly, justly, fairly, and im-
partially approve or reject all claims against the
State road presented to me for such purpose, and
that I will faithfully and diligently discharge all
other duties that are or may be required of me by
law as auditor, to the best of my skill and knowl-
edge. So help me God."
§ 1308. (•§ 1041.) Give bond and surety. — He
shall, at the same time, give bond and surety, to
ibe approved by the Governor, in the sum of
twenty thousand dollars.
§ 1309. (§ 1042.) Bond and oath filed and re-
corded.— Such bond an oath of office shall be filed
and recorded as the superintendent's.
§ 1310. (§ 1043.) Auditor's duties enumerated.—
It is the duty of the auditor —
1. To examine and approve or reject, without
unnecessary delay, all bills and accounts against
said road, before the superintendent shall draw
a warrant for the same on the treasurer.
2. To keep a book to enter all accounts passed,
stating the person, amount, account, and time.
3. To examine, supervise, and control all books
kept by the subordinate accounting officers or
clerks of the road.
4. To discharge such other duties as the laws do
or may require. Acts 1851-2, p. 113.
§ 1311. (§ 1044.) Remedy of the State against
officers of Western and Atlantic Railroad. — The
remedy of the State against the superintendent, the
treasurer, auditor, and other officers and, agents,
is the same as against tax-collectors or receivers.
Acts 1858, p. 62.
§ 1312. (§ 1045.) Additional bond may be re-
quired.— The Governor may require each of such
officers to give additional bond and surety on the
[ 282 ]
§ 1313
WESTERN AND ATLANTIC RAILROADS; ITS GOVERNMENT
§ 1328
same terms and conditions that he may require it
of the comptroller-general or the State, treasurer.
Acts 1858, p. 63.
§ 1313. (§ 1046.) Monthly reports of agents.—
Each agent of such road having the funds there-
of in his hands shall make out monthly, and from
month to month, on such day as the superintend-
ent may require, a full statement of his account,
and particularly specify what amount of cash on
hand, what amount due from freight delivered or
to be delivered, showing the full amount due from
all sources whatever, and shall sign such ac-
count. Acts 1858, p. 63.
§ 1314. (§ 1047.) Defaulting officer or agent dis-
missed.— Any officer or agent failing to pay over
the funds collected by him weekly, or failing to
furnish the superintendent with a monthly state-
ment of the financial condition of his office, ex-
cept for providential cause, shall be immediately
dismissed Iby the superintendent.
§ 1315. (§ 1048.) Proceedings on a dismissal. —
When such dismissal shall take place, an account
shall at once be had of all the freight on hand,
giving the person dismissed a credit or receipt
therefor, so as to show the amount of his indebted-
ness. Acts 1858, p. 63.
§ 1316. (§ 1049.) Amount due by defaulter, how
treated. — As soon as an agent, or any other per-
son having funds of the road unaccounted for, is
in default, and fails to pay over said funds on de-
mand made by the superintendent or by his au-
thority, or shall abscond or conceal himself, or in
any other way evade or prevent a settlement, said
officer shall promptly cause the true amount d.ue
by such person to be ascertained, and transmit the
same to the comptroller-general as earnings of the
road, stating also the date of the default. Acts
1858, p. 63.
§ 1317. (§ 1050.) Oaths of agents. — Every
agent of said road, before entering on the dis-
charge of his duties, must, besides the oath re-
quired of all civil officers, take and subscribe be-
fore the superintendent, who is hereby made an
officer for such purpose, the following oath: "I,
, swear that I will faithfully perform all the
duties of my appointment that are or may toe
required of me by law, to the best of my skill and
knowledge, and that I will render a true account
of my official conduct, and of all moneys received
by me as such, and pay the same over to the per-
son authorized to receive them, as often as the law
may require. So help me God."
§ 1318. (§ 1051.) Bonds of agents.— They shall
at the same time give bond and surety, payable to
the Governor and his successors in office, to be ap-
proved by the superintendent, in such sum as he
may require.
§ 1319. (§ 1052.) Disposition of affidavit and
bond. — The oath shall be filed in the office of the
superintendent, the original bonds transmitted to
the comptroller-general, and copies retained by
the superintendent in a book kept for that purpose
in his office.
§ 1320. (§ 1053.) Bonds renewed annually.—
Such bonds shall Ibe renewed annually, by the
tenth day of January, after a full and satisfactory
settlement has been had with the agents, and. not
befpre.
§ 1321. (§ 1054.) Settlements with agents.—
Said settlement must be in writing and signed by
the agent and superintendent, and shall contain
a full statement of the agent's account with the
road, whether for cash received, freight on hand,
or from any other source whatever.
§ 1322. (§ 1055.) Governor to examine bond, etc.
— The Governor shall examine every bond trans-
mitted to the comptroller-general by the superin-
tendent, and in case of defect therein, as to matter
or surety, may order another bond given in lieu
thereof to the superintendent, and he or the super-
intendent may at any time, when in the judgment
of either the interest of the State requires it, re-
quire such officer to give additional bond and sure-
ties, as he requires of other officers.
§ 1323. (§ 1056.) Conductor's oath.— Every con-
ductor must, in the same manner, take and sub-
scribe this oath: "I, , swear that I will faith-
fully discharge the duties of my office to the best
of my skill and knowledge, and that I will pay
over all the money that may come to my hands
belonging to the State road, as required by law or
the order of the superintendent. So help me
God." Acts 1855-6, p. 157.
§ 1324. (§ 1057.) No credit for freight. — No
agent at any station of said road is permitted to
give credit for any freight on any produce, goods,
or other commodity conveyed, but shall collect the
freights before the articles are taken away, except
in cases where the freights, toy arrangement, are
chargeable to some other railroad company. Acts
1851-2, p. 113.
§ 1325. (§ 1058.) Conductor's settlements. —
Every conductor of passenger or freight trains
shall make a settlement of the tickets and money
received by them with the treasurer' at the end of
each trip. Acts 1851-2, p. 111.
§ 1326. (§ 1059.) Disbursements, how made. —
All disbursements made on account of said road
shall be by warrant of the superintendent, drawn
upon the treasurer, and be first passed by the audi-
tor. The superintendent may refuse to ratify the
approval of the auditor, and when so refusing, the
claim shall be presented to the Governor to de-
cide; if he allows the claim, or any part thereof,
the superintendent shall draw his warrant and ex-
press therein, "By approval of the Governor." If
he concurs with the superintendent, the party may
accept the decision or bring suit.
§ 1327. (§ 1060.) Proceeds to be paid monthly
into treasury. — The proceeds of said road, after
deducting expenses and all debts which are liens
upon its income, shall be paid into the treasury of
the State monthly, and shall first be applied to the
payment of the principal and interest of the bonds
of the State issued on account of said road.
§ 1328. (§ 1061.) Useless iron, etc., shall be
sold on thirty days notice. — Whenever any iron,
or any tackle or apparel, may become useless to
said road, and the superintendent can not have
the same converted into new iron on reasonable
terms, or for any other good reason, he shall sell
the same at public outcry, at whatever point it may
[283]
§ 1328
WESTERN AND ATLANTIC RAILROADS; ITS GOVERNMENT
§ 1336(5)
be most to the interest and convenience of the
road, to the highest bidder, after giving at least
thirty days notice of the time and place of said
sale, with a description of the property, in a public
gazette at Atlanta. Acts 1855-6, p. 157.
§ 1329. (§ 1062.) Terms of sale.— He may sell
said property for cash or credit, as in his discre-
tion it may be best for the State: Provided, that
if on credit, it shall not be longer than twelve
months, with note or bond and personal security
thereto, payable to the Governor, his successor in
office, or bearer, which shall be deposited in the
State treasury, and when collected be as part of
the net earnings of the road.
§ 1330. (§ 1063.) Officer not to be purchaser. —
Neither the superintendent nor any officer of the
State road shall be a purchaser, directly or indi-
rectly, at said sales, on pain of forfeiting to the
State the property purchased and price paid, and
of being removed by the Governor.
§ 1331. (§ 1064.) Record of sales to be kept.—
The superintendent shall keep a record of all such
property sold, to whom sold., at what price, and
on what terms, and shall embrace the same in his
report to the Governor.
§ 1332. (§ 1065.) Restriction on sale of road
property.— The Governor or superintendent shall
not sell any part of the right of way, nor any prop-
erty or land of the road, that may be necessary
for the erection of depots, wood-yards, water-
stations, or for any other improvement to the con-
venience or interest of said road; but they may
sell any land of the road, if of no use to it, in the
manner iron is sold — advertising it in a public ga-
zette at Atlanta, and in the county where it lies,
and in a public gazette thereof, if one, and the su-
perintendent shall execute deeds thereto in his of-
ficial capacity.
§ 1333. (§ 1066.) Who may travel without
charge. — All lunatics and idiots, and the persons
having them in charge, not more than one to each
of such, when sent from any county to the Georgia
State Sanitarium and the latter returning, and all
deaf and dumb and blind pupils partaking of the
State's bounty, with their necessar}' attendants,
when going and returning from their schools,
shall go from and return to their homes, free of
charge on said road. Acts 1853-4, p. 97.
§ 1334. (§ 1067.) Superintendent to enforce the
laws. — The superintendent of said road is es-
pecially charged with the due execution and faith-
ful fulfillment of all the laws for the government
and regulation of the same.
§ 1335. (§ 1068.) Lime, transportation of. —
Said road shall transport lime for agricultural pur-
poses, by the car-load, from any depot thereof to
Atlanta, from the first day of May to the first day
of August of each year, or at any other time not
conflicting with the interests of said road, at a
rate not exceeding three cents per bushel: Pro-
vided, connecting roads at Atlanta will transport
lime for agricultural purposes at corresponding
low rates, and give the superintendent of the road
notice thereof, with consent to be bound, perma-
nently by such rate. Any connecting road at At-
lanta failing to give such notice and consent
shall not be entitled to the (benefits intended to be
secured to the agricultural interest contiguous to
such road. Before any person shall transport lime
on said road, or any road in connection therewith,
at said rate, he shall make oath in writing, before
receiving said lime and paying said freight, that
it has been or is to be transported for, and will be
used in good faith in, improvement of the soil in
the State; which affidavit shall be filed in the office
of the company to whom the freight is paid. Acts
1859, p. 9.
§ 1336. (§ 1069.) Landowners may build stock-
gaps. — All persons in this State owning land
through which the Western and Atlantic Railroad
passes shall have permission to build stock-
gaps on said road when the line of their fences
may cross the same, and shall have the privilege
of joining their fences to such stock-gaps: Pro-
vided, said landowners shall not improperly in-
terfere with the bed. of said road, or render it less
safe, or interfere with the running of the trains
thereon. Acts 1865-6, pp. 261, 262.
§ 1336(1). Title by condemnation. — The West-
ern and Atlantic Railroad (the corporation exist-
ing by virtue of the lease of the Western and At-
lantic Railroad property from the State of Georgia
by the Nashville, Chattanooga and St. Louis Rail-
way, made May 11, 1917), is authorized and em-
powered to acquire by condemnation the title to
all such real estate, and other property as may be
necessary or proper for the construction or main-
tenance of main line tracks, side tracks, spur
tracks, passing tracks, stations or station facili-
ties, shops, section houses, pumping houses, round
houses, signal telegraph or telephone lines, or for
the maintenance of the track or tracks of said rail-
road or other railroad uses, in connection with the
maintenance or operation of the Western and
Atlantic Railroad properties. Acts 1918, pp. 253,
254.
§ 1336(2). Width of land.— The land, which may
be acquired Iby condemnation under and by virtue
of the provisions of this Act, for the construction
of a track or tracks, shall not exceed in width two
hundred feet. Acts 1918, p. 253.
§ 1336(3). Assessment under Code, Sections
5209-5234. — In the event said Western and Atlan-
tic Railroad Corporation is unable to obtain title
to such real estate or other property from the
owner or owners thereof, by contract, lease or
purchase, it may obtain such title by condemna-
tion, the rights to be acquired by it, and the
amount of compensation to be paid by it therefor
to be assessed and determined in the manner pro-
vided in Sections 5209 to 5234, both inclusive.
Acts 1918, pp. 253, 254.
§ 1336(4). Property to vest in State. — At all
termination of said lease the property rights ac-
quired by condemnation under the provisions of
this Act shall go to and become vested in the
State of Georgia. Acts 1918, pp. 253, 254, 255.
§ 1336(5). Special fund set aside as public
school fund. — The Governor of the State is herdby
authorized and fully empowered to assign and set
aside not exceeding five years of the rental arising
from the existing lease of the Western and At-
lantic Railroad, as a special fund to be used ex-
[ 284 ]
§ 1336(6)
PUBLIC PRINTING
§ 1342
clusively for the purpose of paying warrants
drawn against the same as hereinafter provided,
provided that $100,000 set aside as public school
fund be paid out of the General Fund. Acts 1921,
p. 230.
§ 1336(6). Warrants against fund. — In order to
enable the State to meet its obligations then al-
ready created and. incurred by law, and where
revenue from other sources is, in the opinion of
the Governor, not sufficient, the Governor of this
State is hereby duly authorized and fully empow-
ered, from time to time, to draw his warrant or
warrants against the special fund created by Sec-
tion 1336(5), so held as a special fund in the
Treasury, for such sum or sums as may be re-
quired to meet appropriations duly made by law,
and the Governor is further authorized and em-
powered to discount said warrants so drawn
against said special fund, and, to place the pro-
ceeds arising therefrom in the Treasury for the
purpose of meeting and discharging the obliga-
tions of the State then created and incurred, as
aforesaid, for which appropriations have been
made by law. Said warrants shall be duly counter-
signed by the Comptroller-General. The holders
of said warrants shall further have all the rights
and privileges which the original obligees of said
then incurred obligations might have had against
the State. Acts. 1921, p. 230.
CHAPTER 5.
Public Printing.
§ 1337. (§ 1070.) Public printing, how let.— The
office of public printer shall expire with the term
of the present incumbent, and the public printing
shall be letjto the lowest responsible bidder or bid-
ders, who shall give adequate and satisfactory se-
curity in a sum not less than fifty thousand dol-
lars for the faithful performance of the contract,
and no member of the General Assembly, or other
public officer, shall be interested, either directly
or indirectly, in any such contract: Provided, that
no publications of any volume of the law or
journals shall be paid for until the same or proof
of the same shall have been approved by the sec-
retary of the State. Acts 1909, p. 112; 1878-9,
p. 37.
As to competition for state or county work, see §§ 390-
392. As to awarding of printing contracts by Governor, see
§ 1362 (3).
Editor's Note. — This section and sections immediately fol-
lowing through § 1345, are to be read in connection with the
Acts of 1919, p. 269, creating the office of Superintendent
of Public Printing, which will be found in chapter 7, §§
1362 (19) to 1362 (26). The eighth paragraph of the Act of
1919 provides that all laws governing the letting of public
printing are re-enacted in so far as the same are not in
conflict with that act. See § 1362 (26).
AppKed in Byrd v. Cook, 146 Ga. 657, 92 S. E. 61.
§ 1338. (§ 1071.) Commissioners of public print-
ing.— The secretary of State, the comptroller-gen-
eral, and the treasurer of the State* are commission-
ers of public printing, with full powers to contract
for and superintend the same under this Chapter,
and any two of them shall be sufficient to act.
Acts 1878-9, p. 37.
As to abolition of office of public printer, see § 6575. As
to construction of statute conferring joint power, see §
4, par. 5.
§ 1339. (§ 1072.) Advertisement for bids. — Said
commissioners, on or by the first week in June,
1880, and every two years thereafter, shall give
notice by advertisement in one of the newspapers
published in each of the congressional districts of.
this State, that sealed proposals to do all the pub-
lic printing for the State will be received by them
at the office of the secretary of State, in Atlanta,
for thirty days. On the first Tuesday of the Au-
gust following, all the public printing for tin'
State of Georgia, includng all the printed matter
used by the various departments of State or any
branches thereof, will be awarded to the lowest
and Ibest bidder whose bid is filed in compliance
with law: Provided, it shall appear to the com-
missioners of public printing that such bidder has
the capacity and ability to perform such contract in
such a way as will promote the best interests of
the State, and secure the cheapest and most com-
petent and efficient performance of said, contract.
Acts 1878-9, p. 37; 1887, p. 98; 1909, p. 113.
As to competition for public work, see §§ 340-342.
§ 1340. Assignment of contract. — It shall be un-
lawful for any person awarded the contract for
doing all the public printing for the State of Geor-
gia, as herein provided, to transfer or assign said
contract.
As to contracts against public policy, see § 4253.
§ 1341. Printing for departments. — When the
public printing is awarded as herein provided, the
various departments of State, and all branches
thereof, shall, through their proper officers, make
requisition upon the commissioners of public
printing for all printed matter needed in their
various departments, and upon receipt of such req-
uisitions the commissioners of public printing
shall apply said departments with such printed
matter as they may need, from time to time.
§ 1342. (§ 1073.) Stipulations and specifications.
— When bids are made to do the public printing,
such bids must be based on the following stipula-
tions, specifications, and requirements, to wit:
That the laws shall be completed and delivered in
the office of the librarian of the State, at the capi-
tol, within thirty days from the adjournment of
each session of the legislature. The journals shall
be printed and delivered in the office of the libra-
rian within thirty days from the adjournment of
each session of the legislature. The paper on
which the laws and journals are printed shall be
No. 1, sized and supercalendered white book. That
for the laws, size 26x40 inches and weighing fifty
pounds to the ream. The paper for the journals, size
24x38, weighing fifty pounds to the ream. The paper
used in printing the messages of the Governor, the
reports of heads of departments of State govern-
ment, the reports of committees of the legislature,
and all other documents of similar character, must
be the same as that used on the journals.
All blank books made for the use of the State
shall be manufactured of the best ledger writing-
paper of Byron Weston's, or other equally good
make, and the binding full, with extra russia ends
and bands. The tax and. wild-land digests shall
be ruled, printed, and bound in the same style as
the digests of 1878. The paper for the tax digests
shall be thirty-six pound, double flat-cap of Whit-
ing's, or other equally good make. The wild-land
[ 285 ]
§ 1342
PUBLIC PRINTING
§ 1345
digests shall be of the same paper, twenty-eight
pound demy. The (bills printed for the two houses
of the General Assembly while in session shall be
on Whiting's, or other equally good make, thirty-
six pound double flat-cap, in the same type (small
pica) and the same size sheet as bills of 1878. All
blanks for the use of the State shall be on ^ the
same paper as that used for the bills of the legisla-
ture, unless otherwise directed by those compe-
tent to do so under the law. The type used in
printing the laws shall be new small pica, and for
the head and side notes new nonpareil, to be set
in the same style and measure as the laws of 1877.
The type for the journals shall be new small pica,
set in the same style and measure as the journals
of the legislature of 1877. The reports of heads
of departments, reports of committees of the leg-
islature, the messages of the Governor, and other
similar documents, shall be printed in new small
pica type, and tablework in new nonpareil, or
other suitable type.
The bids for public printing shall be submitted
in writing, under seal, and directed to the com-
missioners of public printing, with the following
specification, to wit:
On the laws. — For composition, cents per
one thousand ems. For paper of No. 1 white,
sized and supercalendered, book size, 24x40 inches,
and weighing sixty pounds to the ream,
cents per pound. For proof-reading, make-up,
and putting to press, for each form of sixteen
pages, cents. For presswork on book-press,
with No. 1 book ink, costing not less than seventy-
five cents per pound, cents per token of two
hundred and fifty impressions for forms of sixteen
pages.
On the journals. — For composition, small pica
type, per one thousand ems, cents. For paper
No. 1, sized and supercalendered, book size, 24x36,
and weighing fifty pounds to the ream, per pound,
cents. For proof-reading, make-up, and put-
ing to press each form of sixteen pages,
cents. For presswork, per token of two hundred
and fifty impressions on book-press, seventy-five
cents book ink, sixteen-page forms, cents.
For folding sixteen-page forms. — Per thou-
sand sheets, .
For stitching pamphlets.
holes, per one hundred,
- One section, two
Two sections, three
holes, per one hundred, - — . Four to six sections,
three holes, per one hundred, . Seven to ten
sections, three holes, per one hundred, .
For stitching journals. — From thirty to sixty
sections, per one hundred, .
For gathering pamphlets. — For two sections.
per one hundred, . For four sections, per one
hundred, . For seven to eight sections, per
one hundred, .
For gathering journals and laws. — For thirty to
sixty sections, per one hundred,
For pressing the laws and journals. — From
thirty to sixty sections of sixteen pages, per one
hundred, .
For stabbing journals, reports, and pamphlets.
—From four to eight sections, per one hundred,
For stabbing, from twenty to fifty sections,
five holes, per one hundred,
For trimming pamphlets. — From one to four
sections, per hundred, . From seven to ten
sections, per hundred, .
For trimming journals. — From thirty to fifty
sections, per hundred copies, .
For covering pamphlets. — From one to five sec-
tions, per hundred, . From seven to nine sec-
tions, per hundred, .
For sewing laws. — From twenty to thirty sec-
tions, per book, .
For making cases for laws. — No. 30 Dary's tar-
board, sheep back and corners; sides Ibest tea
cover, thirty-five pound 20x25 flat paper, per case,
For rounding and casing the laws. — Per copy,
Tax digests. — For ruling, per ream, . For
composition, per thousand ems, . For make-
up and putting to press, each form, . For
presswork, per token of two hundred and fifty
impressions, . For binding and labeling di-
gest, per hundred copies, .
Wild-land digests. — For ruling, per ream, .
For composition, per thousand ems, . For
make-up and putting to press, each form, .
For presswork, per token of two hundred and fifty
impressions, . For binding and labeling wild-
land digests, per hundred copies, .
For blank books (extra russia ends and bands).
— 'Cap books, twenty sheets to the quire, per
quire, . For demy books, twenty sheets to
the quire, per quire, . Medium books, twenty
sheets to the quire, per quire, . For double-
cap books, twenty sheets to the quire, per quire,
. For imperial " books, twenty sheets to the
quire, per quire, . For super-royal books,
twenty sheets to the quire, per quire, — — . For
printed headings on all books, from one line to
six lines, . Acts 1878-9, p. 37.
As to style of printing reports, see § 1348. As to duties
of superintendent of printing, see § 1362 (20).
§ 1343. (§ 1074.) Contract forfeited, when.— In
case the contractors fail to do the work accord-
ing to contract, or fail to furnish materials accord-
ing to contract, then the contractors and their
securities shall be lialble on their bond, and the
commissioners may, for any such failure, declare
the bond forfeited, and may award the contract to
the next lowest bidder, or relet the work at once,
in the same manner as hereinbefore set forth, as
to them may seem best. Acts 1878-9, p. 37.
§ 1344. (§ 1075.) Contractor and sureties, how
bound. — Each of the securities on the bond of a
person, or persons, to whom said contract may bt
awarded, shall, at the time of signing the same,
verify and state distinctly for what amount he be-
comes liable by reason of signing said bond.
§ 1345. (§ 1076.) Duties and pay of printer.— It
shall be the duty of the contractor or person do-
ing the pulblic printing to employ such assistance
as may be necessary to prepare and compile the
several Acts and Resolutions of the General As-
sembly in the shortest possible time.
In compiling the laws, it shall be his duty to ob-
serve the following regulations, to wit:
1. To distinguish in their classifications the pub-
lic laws from those that are local or private, and
to arrange the former under their appropriate
heads.
[286 ]
\ 1346
PUBLICATION OF GEORGIA REPORTS
§ 1355
2. To prepare for publication side and head
lotes, for reference.
3. To add notes referring to such previous leg-
slation as may be modified or repealed, and
lotes giving the decisions of the Supreme Court
since the last publication of acts upon the subject-
natter .of each act of a public nature.
4. Prepare and append a copious and correct in-
lex.
For the additional service of compiling and
:lassifying the laws, as directed in the foregoing,
he contractor or person doing the public printing
shall be entitled to compensation amounting to
hree hundred dollars in addition to that provided
)y law for the printing of the same. Acts 1877,
x 15.
CHAPTER 6.
Publication of Georgia Reports.
§ 1346. (§ 1077.) Reports, how published. — The
supreme Court reports of this State shall be pub-
ished Iby, and at the expense of, the State, in the
nanner hereinafter pointed out. Acts 1878-9, p.
158.
Editor's Note.— This section and the section immediately
Eollowing, through. § 1362, are to be read in connection with
he Acts of 1920, p. 237, which will be found in §§ 1362 (1)
o 1362 (18) of this Code. The eighteenth paragraph of the
\.cts of 1920, contains the following provision: "So much
>f the law now contained in the Code of 1910, tenth title,
ihapter six, as is not necessarily superseded by the terms
if this act, is hereby retained in force." Therefore, a com-
>arison of the sections of this chapter with the Act of 1920
s necessary.
§ 1347. (§ 1078.) Estimate of reporter.— It shall
;>e the duty of the Supreme Court reporter to esti-
mate the number of Supreme Court reports that
will probably be demanded by the public, in addi-
tion to the number required by the State, and file
a report of said estimate in the Executive office
mmediately upon the preparation of any given
volume of reports for the press; and in said report
to the Governor, he shall state the quantity of mat-
ter which the forthcoming volume of the reports
contains. Acts 1878-9, p. 158.
As to duty of reporter, see §§ 6128-6130.
§ 1348. (§ 1079.) Style of printing.— The print-
ing and binding of said Supreme Court reports
shall be done upon the terms and in the manner
that other State printing is done, and the printing,
paper, and binding shall be similar in style to that
now used in the publication of said reports. Acts
1878-9, p. 158.
As to stipulation and specifications for public printing,
see § 1342. As to uniformity of reports, see § 1357.
§ 1349. (§ 1080.) Reporter to contract for print-
ing.— The reporter of the Supreme Court, with
the consent and approval of the Governor, shall
have power to award the contract for the publica-
tion of the Supreme Court reports in the same
general manner as the contract for other public
printing is now awarded, but in making such
award the said Governor and the reporter shall
not Ibe limited to the lowest bidder, but may take
into consideration the responsibility of such bid-
der, and his capacity and ability to perform such
contract, in all cases making such award as will
promote the best interests of the State and secure
[2
the cheapest and most prompt and efficient per-
tormance of said contract. Acts 1882-3, p. 76.
As to provisions affecting public printing generally, see
§§ 1337-1341. As to provisions affecting bidders, see §5
340-342.
Applied in Pc-eples v. Byrd, 98 Ga. 688, 25 S. E). 677.
§ 1350. (§ 1081.) Contractor to give bond. —
Should the contract for the ■printing and binding
of the Supreme Court reports be at any time
awarded to a person other than that to whom the
general public printing is awarded, he shall give
a bond, with good and adequate security, payable
to the Governor of this State, and approved by
him, in the sum of not less than ten thousand dol-
lars, for the prompt and faithful performance of
said contract; should said contract be awarded to
the same person to whom is awarded the contract
for public printing, he shall give a bond of ten
thousand dollars, conditioned as aforesaid, in addi-
tion to the bond given on account of the general
public printing. The sureties on said bond shall
justify, and for a failure, neglect, or refusal to
comply with said contract in any particular, the
principal and sureties on said bond shall be liable.
As to appointment of reporter, see § 6127.
§ 1351. (§ 1082.) Reports, how printed.— It shall
be the duty of the person to whom is awarded the
printing and binding of the Supreme Court re-
ports, to print and bind the same promptly in the
manner provided by this Code.
§ 1352. (§ 1083.) Penalty for delay. — Should
there be any unnecessary delay in such printing or
binding, it shall be the duty of the reporter to no-
tify the Governor of the same, and the Governor
shall deduct from the cost of the volume then be-
ing published one hundred dollars for each week
that such delay is continued, and the amount shall
be forfeited b)' the person having such contract.
If such delay shall arise from providential cause
or other reason standing upon the same basis, the
Governor shall have authority, in his discretion, to
remit all or any part of said forfeiture arising dur-
ing the delay, which was actually caused by such
reason.
§ 1353. (§ 1084.) Reporter to examine accounts.
— Before the bills of the contractor for printing
and binding the Supreme Court reports shall be,
paid by the Governor, the same shall be submitted
to the reporter, whose duty it shall !be to make
such report or suggestion to the Governor as will
aid him in determining the correctness and pro-
priety of the bill presented. Acts 1882-3, p. 76.
As to payments by the State, see § 1362, subsection 17.
§ 1354. (§ 1085.) Defective work re-executed. —
Should the work of printing or binding the reports,
or any part of them, be improperly done, the Gov-
ernor shall have power to require the same to be
re-executed, or make such deductions from the
bills presented as may seem to him reasonable and
proper: Provided, that none of the remedies pre-
scribed in this and the two preceding sections
shall affect the liability of the contractor or his
sureties on his bond, nor shall the discretionary
action of the Governor thereunder work any re-
lease of said, bondsmen. Acts 1882-3, p. 76.
§ 1355. (§ 1086.) Contractor to swear to ac-
count.— The accounts presented by the contractor
for printing and binding the Georgia reports shall
7]
§ 1356
PUBLICATION OF GEORGIA REPORTS
§ 1362(6)
be verified by his oath, and he shall further make
oath that no more copies have been printed than
those delivered to the State.
§ 1356. (§ 1087.) Forfeiture of contract and
reaward. — Should the contractor fail to promptly
and satisfactorily perform his duty in printing and
binding the reports, the reporter, with the consent
and approval of the Governor, may declare the
contract forfeited and reaward the same, but this
shall not affect the liability of the original con-
tractor and his sureties upon their bond.
§ 1357. (§ 1088.) Reports uniform.— It shall be
the duty of the reporter to make the volumes of
the reports as nearly uniform as may be practi-
cable and consistent with the speedy and ad-
vantageous publication thereof.
As to style of printing, see § 1348.
§ 1358, (§ 1089.) Copyright. — The copyright
-of said reports shall belong to the State. Acts
1878-9, p. 158.
§ 1359. (§1090.) Reports to be electrotyped.—
The Governor shall require all the Georgia reports
hereafter published, commencing with the sixty-
sixth volume, to be electrotyped, and it shall be his
duty to see to it that the additional expense thus
incurred shall not exceed that paid for similar
work by other States of the Union. Acts 1880-1, p.
141.
§ 1360. (§ 1091.) Advances to contractors. — It
shall be lawful for the treasurer to advance to the
contractor such sums, not exceeding two thirds of
the value of such portion of a volume as may be
printed, whenever the reporter shall certify that
such portion has been printed, taking a receipt for
the sum or sums thus advanced, which shall be his
voucher and an offset to the executive warrant for
the payment of the completed volume, which pay-
ment shall be made out of any money in the
treasury not otherwise appropriated: Provided,
said contractor shall, at his own expense, effect
such an amount of insurance for the benefit of the
State, upon the volume on which such advance is
to be made, as will protect the State from loss in
case of its injury or destruction by fire. Acts 1882-
3, p. 78.
§ 1361. (§ 1092.) Reports not to contain argu-
ments of counsel.- — The volumes of reports must
not contain any argument or brief of counsel, be-
yond a statement of the points and authorities.
Act 1856, Cobb, 455.
As to duty of reporter, see §§ 6127, 1362 (6).
§ 1362. (§ 1093.) Reports, failure to publish.—
If the reporter fails to publish the volumes of re-
ports within six months of the time of the delivery
to him of the decisions, he forfeits one fourth of
his saJary for every additional month's delay, un-
less a majority of the court will certify that the de-
lay was not from his fault, or of those under his
control; but if he continue to fail to publish and
furnish them as required, and without excuse, he
forfeits one fourth more of his salary, and must be
removed by the Supreme Court.
§ 1362(1). Reports, how published.— The Re-
ports of the Supreme Court and of the Court of
Appeals of this State shall hereafter be published
in the manner hereinafter pointed out. Acts 1920,
p. 237.
§ 1362(2). Definitions.. — For the purpose of this
Act, the following words, as used herein, shall be
construed to have the following meaning: The
word "reporter" shall mean the reporter of the
Supreme Court. The word "Reports" shall mean
the official Reports of the decisions of the Supreme
Court or of the Court of Appeals as the case may
be, together with the usual title pages, indexes,
etc. The word "publisher" shall mean the State
Publisher of Court Reports as defined in this Act
Acts 1920, p. 237.
§ 1362(3). Contract; bidders. — The reporter,
acting with the advice of the Governor, shall from
time to time as the occasion may require, prepare
and outline a proposed contract conforming to the
provisions of the Act in general detail but leaving
blanks to be filled where necessary from the bids
to be submitted as hereinafter provided for and
shall file the same in the office of the Governor for
public inspection. The Governor shall thereupon
advertise for bidders under said contract. Said
advertisement shall be published twice, in sepa-
rate weeks, in some daily newspaper of said State
and shall designate the time, place and manner in
which bids will be received. The' right to reject
any and all bids shall be reserved. The Governor
and reporter to contract with such lowest bidder
in the event such contractor complies with the
terms of this law. Acts 1920, p. 237.
§ 1362(4). Bond. — The person to whom the
contract is awarded shall give bond with adequate
and satisfactory security in the sum of not less
than $10,000.00 to be payable to the Governor and
to be approved by him and to be conditioned that
he will promptly and faithfully perform his con-
tract and carry out all the provisions of the Act so
far as they relate to the duties arising from said
contract. Acts 1920, pp. 237, 238.
§ 1362(5). State publisher of court reports. —
The person to whom said contract shall be
awarded shall, upon the giving and the approval. of
the bond above referred to, become and be known
as the State Publisher of Court Reports. Acts 1920,
pp. 237, 238.
§ 1362(6). Printing; delays. — The reporter shall
furnish to the publisher the manuscript of the de-
cisions and of the index and shall supervise the
printing in substantially the manner as provided in
Section 6127 to 6131, inclusive, of the present Civil
Code of Georgia, and it shall be the duty of said
publisher to cause the Reports to be printed and
bound promptly and within such limit as shall be
set out in the contract. Should there be delay in
such printing or binding beyond the time set, the
reporter shall notify the Governor and the Gover-
nor shall, upon notice to said publisher, declare
said contract broken and said publisher shall for-
feit to the State a sum to be assessed by the Gover-
nor not exceeding one hundred dollars per week
for each week that said delay continues, unless it
appears to the Governor that such delay arose
from providental, unavoidable or excusable
cause; and if the delay is flagrant or continues
more than sixty days the Governor may, in addi-
[ 288 ]
§ 1362(7)
PUBLICATION OF GEORGIA REPORTS
§ 1362(16)
tion, declare the contract forfeited and ended. The
bond given by said publisher shall be liable for
any sum so assessed and an action shall be there-
on in behalf of the State for said amount. Acts
1920, pp. 237, 238.
§ 1362(7). Style and quality of books. — The
printing and binding of the Reports shall be done
substantially in the same manner and in the same
style and quality as now used in the publication of
said Reports, and no variance therefrom shall be
made without the consent of the reporter on such
terms as shall be set by him with the approval of
the Governor. Acts 1920, pp. 237, 238.
§ 1362(8). Matrices of type pages. — As said
Reports are printed, matrices of the type pages
shall be made according to specifications to be
furnished by the reporter and to be stated in the
contract, and as each volume is printed these
matrices shall be carefully packed and boxed and
delivered to the State Librarian or to such other
custodian as shall be designated by the Governor,
free of cost to the State; and these shall be care-
fully preserved for future printing if necessary. In
the discretion of the reporter, with the approval of
the Governor, the publisher may be required to
furnish stereotyped plates, instead of the matrices,
at the actual cost of having the same made from
the matrices or type pages. The publisher shall
also carefully preserve an additional set of the
matrices of each volume he publishes, and shall,
upon his contract expiring, deliver them to his
successor in office, the title to the same to be in
the State at all times. Acts 1920, pp. 237, 239.
§ 1362(9). Number of volumes. — On or before
the time each Report is printed and bound the
State Librarian shall furnish to the publisher a
statement of the number of volumes needed by the
State for the purpose of distribution and exchange
as provided in Sections 178 and 183 and for other
public uses of the State, and, as soon as the Re-
ports are printed and bound, the supply called for
by the requisition of the State Librarian shall be
delivered to the State Librarian; and the
publisher shall be paid therefor at the price set out
in the contract, to be paid as is hereinafter pro-
vided, and if the original requisition proves inade-
quate further requisitions may be made from time
to time and the volume called for shall be delivered
and paid for as stated above. In addition to the
copies so to be furnished for use of the State the
publisher shall at all times during his contract
keep on hand at the Capital City of the State an
adequate supply of the Reports on and after the
day of publication [and] shall sell the same to the
State and citizens of this State at a price not
exceeding that to be set in the contract. Acts
1920, pp. 237, 239.
§ 1362(10). Price. — The price at which such
Reports shall be furnished to the State or sold to
the citizens of the State shall not exceed the cost
price to the State as fixed by the contract with the
publisher herein referred to. Acts 1920, pp. 237,
240.
§ 1362(11). Number of copies printed. — The
publisher shall print such number, not less than
as shall be specified in the contract herein pro-
vided for. Acts 1920, pp. 237, 240.
§ 1362(12). Unsold volumes. — Upon the ex-
piration of his contract the publisher in the event
he does not become his own successor may sell to
his successor all his unsold copies provided he and
his successor can agree upon satisfactory terms
therefor, but if no satisfactory trade is made to his
successor the publisher may hold said unsold cop-
ies for the purpose of sale, and the price of any
such unsold copies shall remain the same as fixed
by the contract under which said unsold copies
shall have been published. Acts 1920, pp. 237, 240.
§ 1362(13). Copyright.— The reports shall be
copyrighted and the copyright shall belong to the
State of Georgia. Acts 1920, pp. 237, 240.
§ 1362(14). Improper work. — Should the work
of printing and binding the Reports or any part of
them be improperly done the Governor shall have
the power to require the same to be re-executed
or in his discretion he may, in lieu thereof, require
the publisher to sell the same to the State and the
citizens of the State at a reduced price to be fixed
by the Governor. This provision shall in no way
affect the liability upon the bond herein provided
for. Acts 1920, pp. 237, 240.
§ 1362(15). Reprinters; ex-publisher's right.—
Except when the State shall have on hand for the
purpose of sale twenty-five or more copies of any
volume of the Reports of which the State may
have matrices, or electrotyped, or stereotyped
plates, whether such matrices or plates were ob-
tained by the State under the provisions of this
Act or any prior existing law, or otherwise, the
publisher shall have the right at any time to call
on the State Librarian or other custodian for the
matrices or plates for such volumes for the pur-
pose of printing therefrom additional copies, and
also it shall be the duty of the publisher, upon de-
mand being made upon his by the reporter, with
the approval of the Governor, to make such re-
prints as may in the judgment of the reporter, with
the approval of the Governor, be necessary to
meet the needs of the State or of the citizens of
the State and to keep such volume or volumes on
hand for sale to the State and to the citizens of the
State. The terms on which the publisher shall
have the use of such matrices and plates and the
prices at which the reprints shall be sold to the
State and to the citizens of this State shall be
stated in the publisher's contract. Provided, never-
theless, that where an ex-publisher has on hand,
unsold, not less than twenty-five copies of any
volume of the Reports, which he stands ready to
sell to the State or to the citizens of this State at
the price named in the contract under which such
volume was printed, no succeeding publisher shall
be allowed to reprint that volume of the Reports
and sell the same in competition with the ex-
publisher. Provided that this exception in favor
of the ex-publisher shall expire at the end of six
years from date of the expiration of his contract
under which the volume in question was published.
Acts 1920, pp. 237, 240.
§ 1362(16). Section 187 partly superseded. — So
1,000 copies, of each current volume of the Reports much of Section 187 of the Civil Code as relates to
Ga. Code— 10 [ 289 ]
1362(17)
SUPERINTENDENT OF PUBLIC PRINTING
§ 1362(22)
the publication of the early reports by the State Li-
brarian is superseded by this Act, but such republi-
cation shall be provided for in letting the contract
with the publisher. Acts 1920, pp. 237, 341.
§ 1362(17). Payments by State.— The expenses
attendant on advertising and letting the contracts
shall be paid from the contingent fund, or other
funds not otherwise appropriated, on warrant of
the Governor. The purchase price of books
bought under the provisions hereof for the use of
the State and the cost of making stereotypes, if re-
quired, and such other things as are properly
chargeable to the State in the carrying out of the
provisions of this Act, and not otherwise provided
for, shall be paid out of the printing fund or any
other fund in the Treasury not otherwise appro-
priated, to be drawn on warrant of the Governor.
Acts 1920, pp. 237, 242.
§ 1362(18). Existing law. — -So much of the law
now contained in the Code of 1910, tenth title,
chapter six, as is not necessarily superseded by the
terms of this Act, is hereby retained in force. Acts
1920, pp. 237, 242.
CHAPTER 7.
Superintendent of Public Printing.
§ 1362(19). Establishment of office; qualifica-
tions; appointment, term, salary, bond. — There
shall be established in this State an office to be
known as the Superintendent of Public Printing,
which shall be filled by a practical printer who
shall have had at least five years experience as
such, who shall be the executive member of the
Commission of Public Printing and shall be known
as the Superintendent of Public Printing. He
shall be appointed by the Governor of the State of
Georgia, said appointment to be ratified by the
Senate for a term of four years, beginning on the
first day of January, 1920, and shall be paid a
salary of $3,000.00 per annum. He shall be re-
quired to give bond in the sum of $5,000.00 for the
faithful performance of his duties. Acts 1919, p.
269.
§ 1362(20). Duties; bids for printing, etc.; con-
tracts; bond. — It shall be the duty of the Superin-
tendent of Public Printing to act in conjunction
with the commissioners of Public Printing and in
the manner required by law, let the contract for
printing the Acts of Legislature, Journals of the
Senate and House, reports of all departments of
the Government and such other printing as may be
required by law or rules of department. The
Commissioners of Public Printing shall, on or
about the first day of June, each year, let out to
the lowest responsible bidder, experience and
facilities possessed at the time of bidding con-
sidered, all the printing, binding, ruling, litho-
graphing and engraving required at that time by
any department of the State and authorized by law
to be done, or required in the execution of any law,
and shall give time and place of letting said work
by advertisements published every other day for
two weeks in one newspaper of general circulation
published in the City of Atlanta, and in not less
than two other daily papers of general circulation
published in other cities of the State, reserving in
said advertisements the right to reject any or all
bids, and shall furnish all bidders, on application,
with printed schedules on which to bid on each
class of work, specifying in detail the items re-
quired in the execution of said work, which bids
shall be opened at the time and place named in the
advertisements, and in the presence of such bidders
as see fit to attend. They may let out the work to
different persons and in such lots or portions
as they may deem proper. They shall fix the vari-
ous times for the delivery of such work or portions
of same as to them may seem reasonable. In every
case they shall require the party or parties under-
taking to do the work, or any part thereof, to enter
into a written contract, stating distinctly the terms
of same, embracing the prices to be paid for com-
position, press work, folding, stitching, ruling,
binding, and all other items in detail, always pro-
viding in such contracts that the printing is to be
executed in a close and compact form, without un-
necessary title pages or useless blank pages, or
useless spacing. They shall provide in such con-
tracts that in case the work so contracted for be
not completed within the time specified therein
they shall deduct and retain from such contract
price such per centum thereof for each day or
week, if such work is delayed, as they may deem
proper, and shall require the person or persons
making such contract to enter into a bond with
security conditional for the faithful performance
and execution of such contract, the penal sum to
be fixed and the security to be approved by the
Governor of the State, and the form of bond to be
prescribed by the Attorney-General. No person
shall be received as surety who is interested either
directly or indirectly in a contract with the State.
Acts 19] 9, pp. 269, 270.
§ 1362(21). Stationery, etc., to be supplied by
Superintendent; bids without advertising. — The
Superintendent of Public Printing shall supply all
the officers, departments, boards and institutions
of the State with such printing, stationery, binding,
lithographing and engraving, etc., as may be re-
quired by them from time to time, without adver-
tising for bids, but after having received competi-
tive bids therefor by printers throughout the State
as far as practicable, provided that the particular
job does not exceed five hundred dollars in cost.
He shall also furnish such printing as may be or-
dered by either House. He shall also cause to be
printed all proclamations and advertisements re-
quired to be made by said officers; all such work,
as far as practicable, to be let to the lowest bidder
without advertisement. Acts 1919, pp. 269, 270.
§ 1362(22). Account books, etc., to be open to
public. — The Superintendent of Printing shall
keep a voucher book in which he shall enter all
accounts for printing, binding, ruling, lithograph-
ing, engraving and advertisements, postage, dray-
age, expressage, etc., also an order book in which
he shall enter the orders for printing, binding, etc.,
received by him from any department, officer or
board of the State, with a brief description of the
work, the date on which it was received, when and
to. what party or parties the work is let; also a con-
tract book in which he shall record all contracts
[ 290 ]
§ 1362(23)
EDUCATION
§ 1366
and bonds; also a schedule book exhibiting in de-
tail the cost of all printing, binding, ruling, adver-
tising, postage, drayage, expressage, lithographing,
etc., executed for each department, officer or
board. Such books shall at all times be open to
public inspection. Acts 1919, pp. 269, 271.
§ 1362(23). Approval and payment of accounts.
— The Superintendent of Public Printing shall ap-
prove all accounts as correct according to contract,
shall present same to the officer, together with all
bids received, for whose department the work was
done or stationery furnished, and when said officer
shall certify said amount as true and correct, the
same is to be paid by warrant drawn on the Treas-
urer by the Comptroller-General. Acts 1919, pp.
269, 271.
§ 1362(24). Non-compliance with contract; re-
letting; suit on bond. — If any officer, department
or board report to the Superintendent of Public
Printing any failure in the prompt and satisfactory
execution of any contract for work done or mate-
rial furnished, and in any case in which the Sup-
erintendent of Public Printing is satisfied that the
contracting party or parties have failed to comply
with the terms of any contract, it shall be the duty
of the Superintendent of Public Printing to re-let
said contract in accordance with the terms and
provisions of this Act, and to bring an action on
the bond of the defaulting party or parties for any
loss which may have been sustained by the State
by virtue of said breach of contract. Acts 1919, pp.
269, 271.
§ 1362(25). Law reports. — The Reports of the
Supreme Court and of the Court of Appeals shall
be printed and supplied as now provided by law,
but the Supreme Court Reporter shall file all con-
tracts for the printing of said Reports with the
Superintendent of Public Printing, who shall re-
cord such contracts as herein provided. Acts 1919,
pp. 269, 272.
§ 1362(26). Re-enactment of laws. — All laws
and parts of laws now governing the letting of
public printing are hereby re-enacted in so far as
the same are not in conflict with the terms of this
Act. Acts 1919, pp. 269, 272.
ELEVENTH TITLE.
Education.
CHAPTER 1.
The University of Georgia and Its Organization.
ARTICLE 1.
The University of Georgia.
§ 1363. (§ 1271.) University of Georgia and its
government.— The government of the University
of Georgia, at Athens, is vested in a board of trus-
tees, who are subject to the General Assembly.
For complete treatment of board of trustees-, see 5 Cum.
Dig. 214 et seq.
§ 1364. (§ 1272.) Name and style; may sue and
be sued. — For such purpose they are a body cor-
porate and politic, by the name of the "Trustees oi
[2
the University of Georgia," by which they shall
have a perpetual succession, have and use a com-
mon seal, and be a person in law, able to plead and
be impleaded, to hold and acquire real and per-
sonal estate, with power to lease and otherwise
manage the same for the good of the University.
All money or property granted by the State, or in-
dividuals, for the advancement of learning in gen-
eral, is in such trustees.
As to gifts and appropriations to the University, see §
6581. As to limiting devise to educational institution to
exclusion of wife or child, see § 3851.
All Branches of University Suable. — By this section the
state expressly gave its consent for the University to be
sued and this includes all the branches of the University.
First Dist. Agri., etc., School v. Reynolds, 11 Ga. App.
650, 652, 75 S. E. 1060.
Property Granted Vested in Trustees. — All money or
property granted by the state, or by individuals, for the
advancement of learning, is vested in trustees. Trustees v.
Denmark, 141 Ga. 390, 399, 81 S. E- 238.
Trustees Exercise None of Functions of Civil Officers. —
Trustees v. Denmark, 141 Ga. 390, 398, 81 S. E- 238.
Devise to the Trustees for Use of University. — A devise
to the trustees of the University of Georgia of certain
property, in trust for the use of the University, is a devise
to the University itself. Trustees v. Denmark, 141 Ga.
390, 81 S. E. 238.
§ 1365. Board of trustees. — The Board of
Trustees of the University of Georgia shall be
composed of one member from each Congressional
district, four from the State at large, three from
the City of Athens, and the chairman ex-officio of
the local board of trustees of each branch of the
State University where by laws now of force they
are made such trustees; all of whom, except the
latter, shall be appointed by the Governor and con-
firmed by the Senate, under the rules governing
the appointment and confirmation of other officers
of this State required by law to be confirmed by
the Senate. The president or chairman of the
Boards of Trustees or Directors of the State Nor-
mal School at Athens, the Medical College of the
University of Georgia, at Augusta, the North
Georgia Agricultural College at Dahlonega, the
Bowden State Normal and Industrial School at
Bowden, the South Georgia Normal College at
Valdosta, and Georgia State Industrial College for
Colored Youth at Savannah, shall be ex-officio
members of the said Board. Acts 1871-2, p. 74;
1878-9, p. 95; 1889, p. 56; 1910, p. 74; 1911, pp. 154,
161; 1914, p. 156; 1919, pp. 85, 262; 1923, p. 56; 1924,
p. 120.
As to Governor ex officio member, see § 1367. As to one
additional non-resident member, see § 1369.
Editor's Note.— By the Act of 1923 (Acts 1923, p. 56), the
number of trustees from the city of Athens was increased
from two to three. The following are by the laws now in
force ex officio members of the Board of Trustees: The
president of the Board of Trustees of the State Normal
School at Athens (Acts 1910, p. 74); the president of the
Medical College of the University at Augusta (Acts 1911.
p. 154) ; the chairman of the North Georgia Agricultural
College at Dahlonega (Acts 1911, p. 161); the president of
the Board of Trustees of the South Georgia Normal Col-
lege at Valdosta (Acts 1914, p. 156) ; the president of the
Board of Directors of the Bowden State Normal and In-
dustrial School at Bowden (Acts 1919, p. 262) ; and the chair-
man of the Board of Trustees of the Georgia State Indus-
trial CoUege for colored youth at Savannah (Acts 1924, p.
120). The Act of 1919 (Acts 1919, p. 85); also made the
president of the University Alumni Association ex officio
a member of the Board.
§ 1366. (§ 1274.) Term of office.— The term of
office of said trustees shall be eight years, and un-
til their successors are appointed, confirmed, and
qualified. The first appointments shall be made by
91]
§ 1367
THE UNIVERSITY OF GEORGIA
§ 1375
the Governor before the first day of September,
1889, and confirmed by the Senate; four of them
shall be appointed for two years, four for four
years, four for six years, and four for eight years,
and as the terms of these appointees expire their
successors shall be appointed and confirmed
biennially thereafter for a full term of eight years.
There shall be two trustees from the city of
Athens, exclusive of one from the Congressional
district in which said city may be located. Acts
1871-2, p. 74; 1878-9, p. 95; 1889, p. 56.
§ 1367. (§ 1275.) Who eligible as trustees.—
Persons to be eligible to the office of trustee shall
be citizens residents of the districts from which
they are appointed; shall be at least twenty-five
years of age, not trustees of any other male college
or university, excluding branch colleges of the
University, and high schools or academies; and
shall be chosen with special reference to their fit-
ness and capacity to exercise the duties of trustee.
The Governor shall be ex-officio a member of the
board of trustees, and shall attend its meeting
when possible, and is entitled to all the privileges
Mof a member of the board.
§ 1368. (§ 1276.) Governor to fill vacancies. —
In case of the death or resignation of any member
of the board, the- Governor shall fill such unex-
pired term in the manner above provided, such ap-
pointment to be confirmed by the Senate at the
session after the same is made.
§ 1369. Office of additional trustee created. —
There shall be the office of one additional trustee
of the University of Georgia; said office to be held
only by a non-resident, native Georgian, to be ap-
pointed by the Governor and confirmed by the
Senate, in the same manner as other trustees for
said institution are appointed. Acts 1906. p. 77.
As to appointment and membership, see § 1365.
§ 1370. His term of office, powers and duties. —
Said non-resident trustee when appointed shall
hold office for the term of eight years, and until his
successor is appointed and qualified, and all the
terms, conditions, and requirements of law appli-
cable to the present trustees of said University
shall be applicable to said non-resident trustee, ex-
cept as hereinafter provided.
§ 1371. Eligibility, etc. — A person to be eligible
tc the office of trustee under the two preceding
sections shall be at least twenty-five years of age,
and shall not be a trustee of any other male college
or university located within this State, but trustee-
ship of other male colleges or universities not
located in this State shall not be a disqualification:
Provided, that no appointment shall be made to
fill the office thus created in case it is made vacant
by death, resignation, or refusal to serve by the
first incumbent.
§ 1371(1). Alumni members of board of trus-
tees.— The membership of the Board of Trustees
of the University of Georgia is hereby increased by
the addition to said Board of four members to be
known as alumni members. Those alumni members
of the Board of Trustees shall be elected by the
Alumni Society of the University of Georgia for
terms of eight years each, provided however, that
at the initial election of said Trustees one Trustee
shall be elected for a term expiring at the first an-
nual meeting of the said Alumni Society which is
more than two years from the date upon which
this Act shall become effective and the other three
Trustees shall be elected for similar terms expiring
with the first annual meeting held respectively
more than four, six and eight years after the date
of this Act so that the term of one of such alumni
Trustees shall expire each second year. The said
Alumni Trustees shall be elected from former stu-
dents of the University of Georgia and shall be
elected in such manner as the Constitution of the
Alumni Society of the University of Georgia pro-
vides from time to time. Trustees so elected by the
Alumni Society shall be commissioned by the
Governor of this State the fact of their election be-
ing certified to him under the hand of the Secretary
and president of said Society. Acts 1925, p. 296.
§ 1372. (§ 1277.) Chairman of the board.— The
board of trustees shall elect one of their number as
their presiding officer, who shall be called the
chairman of the board of trustees. The board may
meet subject to their own order, but they must as-
semble in annual session in the city of Athens on
the Thursday preceding the Sunday of the com-
mencements of the University. They may estab-
lish such rules and regulations for their own direc-
tion as they deem proper; may fix the terms of the
office of their chairman and secretary; and are
vested with all the powers, privileges, and rights
vested in the former board of trustees, and are
charged with all the duties, obligations, and re-
sponsibilities incumbent on the same.
§ 1373. (§ 1278.) Continuance.— It shall be the
duty of the members of the board of trustees of
said institution to attend the meetings of the board,
so as to take part in its deliberations; and when-
ever any trustee shall be engaged, at the time pre-
scribed for the annual meeting of the trustees, as
counsel or party in any case pending in the courts
of this State, and such case shall be called for trial
during the regular session of said board, his ab-
sence to attend such session shall be good ground
for postponement or continuance of the case till
the session of the board shall have come to an end.
As to absence of party as cause for continuance, see §§
5717, 5718.
§ 1374. (§ 1279.) Office vacant for failure to
attend. — The office of any member of the board of
trustees shall be vacated if he neglects to furnish
good and satisfactory excuse, in writing, to the
board for absence from two consecutive meetings
thereof; and if any member, for any cause, fails to
attend three successive meetings of the board, his
office shall be declared vacant by the board; and
■the secretary shall in either event notify the Gover-
nor of a vacancy in the board, and the Governor
shall fill the same as above provided for. Acts
1871-2, p. 74; 1878-9, p. 95; 1889, p. 56.
§ 1375. (§ 1280.) Compensation for board of
trustees. — The members of the board shall each re-
ceive (for the payment of expenses actually in-
curred by them) the sum of four dollars for each
day of actual attendance at the meetings thereof,
and mileage in actual fare to and from the place of
meeting by the nearest practicable route from their
respective homes, said expenses and mileage to be
[ 292 ]
1376
THE UNIVERSITY OF GEORGIA
§ 1384
paid by the Slate treasurer out of the funds of the
State, by executive warrant, on presentation of
vouchers of the members, approved by the chair-
man and signed by the secretary of the board. The
members of said board shall receive no emolument
or compensation for their services as such mem-
bers. Acts 1871-2, p. 74; 1878-9, p. 95; 1889, pp. 55,
58.
§ 1376. (§ 1281.) Annual reports made to Gov-
ernor.— .The board of trustees shall submit to the
General Assembly, through the Governor, annual
reports of their transactions, together with such
information as is necessary to show the condition
of the University, with such suggestions as it may
think conducive to the good of the University and
the cause of education in the State.
§ 1377. (§ 1282.) Course of Bachelor of Arts to
be encouraged. — In prescribing the course of study
to be followed in said University, it shall be the
duty of the trustees, in so far as the same can be
done without detriment to other departments, to
encourage and promote, by the disposition of the
time and attention of the students, the regular
course of . Bachelor of Arts, in order that said
course shall not be subordinated to any other
course in the institution. Acts 1894, p. 64.
§ 1378. (§ 1283.) Efficiency of the two literary
societies to be promoted, etc. — The board of trus-
tees shall, in their discretion, ordain and establish
such rules and measures as will, in their judgment,
tend to secure the efficiency and promote the
success of the two literary debating societies in
said institution, and to the encouragement of
oratory and composition among the students at-
tending the exercises in these societies.
§ 1379. (§ 1284.) Powers specified.— The trus-
tees have power —
1. To elect their own officers, such as chairman,
vice-chairman, secretary, treasurer, or such of them
as they may require, and also all other officers
they may deem necessary for their organization.
2. To elect a presiding officer of said University,
who shall be styled the "Chancellor of the Uni-
versity of Georgia," and in case of a vacancy in his
office, unsupplied, to create such office and make
such arrangement for the conduct of the institu-
tion as to them shall seem meet.
3. To elect or appoint professors, tutors, stew-
ards, or any other officer necessary; to discontinue
or remove them, as the good of the University may
require; and fix their salaries.
4. To prescribe the course of studies to be pur-
sued by the students, the terms and manner of
graduating, and of conferring all the degrees.
5. To operate regular summer sessions of the
Universit}^ of Georgia, in graduate courses and
work closely related thereto, including psychology
and the history and philosophy of education, for
the special benefit of the white teachers of the
State without regard to sex or age.
6. To establish all such schools of learning or
art as may be useful to the State, and to organize
the same in the way most likely to attain the ends
desired.
7. To call on all persons who may have, or have
had, any funds, property, papers, or books belong-
ing to the University, to deliver them up and make
settlements.
8. To adjust and determine the expenses of the
institution.
9. To exercise any power usually granted to
such incorporation, necessary to its usefulness, and
not in conflict with the Constitution and laws
Cobb, 1082, 1095; Acts 1853-4, p. 114; 1858, p. 107:
1859. p. 20; Acts 1898, p. 69.
As to establishment of industrial and agricultural school*
in each congressional district, see § 1552.
§ 1380. (§ 1285.) Meeting of board, how called.
— The chairman of the board and two of its mem-
bers may appoint a meeting at any time by giving
to the others at least ten days notice, by letter or
otherwise. When the chairman does not act, the
senior trustee present shall preside, and in all other
respects discharge his duties; when the board is
divided the presiding officer shall give the casting
vote, or may vote to make a tie. A majority of the
body present shall govern, if a quorum. Nothing
done at a special meeting shall be binding after the
rising of the next annual meeting, unless then con-
firmed.
§ 1381. (§ 1286.) Shall not dispose of stock
subscribed for. — Such trustees shall never dispose
of the stock by them subscribed for, except with
the consent of the General Assembly, but the
dividends therefrom shall be drawn and used as
the various demands of the University may require.
§ 1382. (§ 1287.) Board of visitors.— The Gov-
ernor shall annually appoint five experienced
educators, citizens of the State, as a special board
of visitors to attend the examinations at the Uni-
versity of Georgia, preceding the annual com-
mencement, to examine personally into the condi-
tion and management of said institution. Said visi-
tors, or a majority of them, shall submit their
report in writing, as soon thereafter as possible, to
the Governor, in which they shall report upon the
character of the examinations aforesaid, the condi-
tion and management of said institution, together
with such suggestions and recommendations there-
on as they deem proper. Said reports shall be laid
before the General Assembly by the Governor.
Acts 1887, p. 67.
§ 1383. Experts to be of the board. — Two of the
members qf said special board of visitors shall be
experts in the theory and in the practice of agricul-
ture and horticulture. This provision shall remain
in force and effect as long as "the State College of
Agriculture and Mechanic Arts" may be associ-
ated with Franklin College and the U. S. land
scrip fund shall be utilized for the support and
promotion of the University of Georgia. Acts 1900,
p. 79.
§ 1384. (§ 1288.) Quorum and pay. — A major-
ity of said board shall constitute a quorum. Such
visitors shall receive, as compensation for their
services, four dollars per diem, estimating from the
date of leaving their homes, and mileage each way
by the nearest practicable route to Athens, at the
rate of three cents per mile. The whole service of
said board shall not exceed ten days.
[ 293 ]
1385
THE UNIVERSITY OF GEORGIA
§ 1395
§ 1385. (§ 1289.) When report of board of visi-
tors to be laid before trustees. — The board of visi-
tors for the University of Georgia shall complete
the report required of them, and lay the same be-
fore the trustees of said institution, on or before
the Saturday preceding the annual commencement
day of said institution. The said board of visitors
shall also, at the same time, present to the trustees,
in writing, any matter of importance coming to
their knowledge during their examination of the
institution, which, in their opinion, is material to
the welfare, good management, and success of the
same, making such suggestions touching the
matter as may seem to the said board of visitors
meet and proper: Provided, however, that the
making of the report herein provided for shall not
take the place of the report now required to be
made to the Governor under existing laws. Acts
1894, pp. 63, 64.
§ 1386. (§ 1280.) Consideration to be given re-
port.— The board of trustees of the University of
Georgia shall give to said report and the matter
accompanying the same due and careful considera-
tion, and, in their discretion, take final action on
such matters as may be therein embraced looking
to the welfare, government, discipline, and success
of said institution.
§ 1387. (§ 1291.) Reports of boards of trustees
and visitors. — The Governor shall lay the reports,
respectively, of the board of trustees and the board
of visitors, annually, before the General Assembly,
in connection with his annual message, with such
comments as he may see proper, and when so done
the General Assembly has power to revise and ap-
prove or reject the action of the board of trustees.
As to requirement that copies of reports of the two
boards be furnished state librarian, see § 195.
§ 1388, (§ 1292.) No exclusion for religious
views. — No person of any religious denomination
shall be excluded from equal advantages of educa-
tion and the immunities of the University on ac-
count of their speculative sentiments in religion, or
being of a different religious profession from the
trustees or faculty. Acts 1877, p. 17.
As to provision in constitution for religious liberty, see
§ 6369.
§ 1389. (§ 1293.) Oaths required in the charter.
— The chancellor of the University, its professors
and tutors, shall not be required to take certain
oaths prescribed in its charter.
§ 1390. (§ 1294.) Chancellor may appear before
the legislature. — The chancellor has the authority
to appear before the General Assembly once at
each session, and address them in person on the
condition, interests, and wants of the University.
§ 1391. (§ 1295.) Conferring degrees.— The Uni-
versity may confer degrees as follows:
1. To each graduate of the University the degree
of Bachelor of Arts.
2. To each graduate of the University, or of an-
other college, of three years standing, or to such
graduates as have passed a year in the University
schools (all being of good moral character), the de-
gree of Master of Arts.
3. To all law students who have attended the
lectures of the professors, and are recommended
by them for the same, the degree of Bachelor of
Laws.
4. To the graduates of such medical school as
may be established by the trustees of the Uni-
versity, the degree of Doctor of Medicine.
5. To students in the University sch»ools of two
years standing and proficient in two or more of
them, the degree of Doctor of Philosophy.
6. To persons distinguished for learning, ability,
and character, according to their respective voca-
tions, the degree of Doctor of Laws, or of
Divinity, and, where appropriate, both. It may
also confer such other degrees and honors as may
tend to the promotion of the arts and sciences.
§ 1391(1). Honorary degrees of Georgia School
of Technology. — The local Board of Trustees of
the Georgia School of Technology shall have
authority to recommend to the general Board of
the University of Georgia the granting of honor-
ary degrees to any person whom they deem fit and
proper to receive the same. Such recommenda-
tion, when duly certified to the general Board,
shall receive proper consideration by said Board,
and if the recommendation is adopted, the degree
shall issue in the name of the University of
Georgia and be delivered by the Chancellor there-
of. Acts 1912, pp. 182, 183.
As to passing of examination on constitution as a pre-
requisite to graduation, see § 1551 (21).
§ 1392. (§ 1296.) Preparatory school in connec-
tion with college. — By the authority of the board
of trustees there shall be established, in connec-
tion with the University, an institute combining
the instruction usually given in academies and to
the lower classes in colleges, and University
schools for professional education, including the
application of science to the industrial arts as
well as to the more abstruse and recondite
sciences, and especially for the promotion of
medical and legal education, not omitting the ap-
plication of chemistry to agriculture, and mathe-
matics to civil engineering. By the same au-
thority there may he a reduction of the number of
years usually spent in colleges prior to gradua-
tion.
§ 1393. (§ 1297.) Campus grounds not subject
to alienation. — There is reserved and set apart for
the University campus, not subject to alienation,
thirty-seven acres of the tract of land donated to
the University by the late Governor John
Milledge.
§ 1394. (§ 1298.) The permanent income. —
The permanent income of said University from its
bank-stock shall not be less than eight thousand
dollars annually, and when the dividends from the
bank shall not be equal to said sum, the Governor
is required to make up the deficiency semi-annually
by his warrant on the State treasurer for its pay-
ment out of any money not otherwise appro-
priated.
§ 1395. Redemption of bonds. — Whenever the
trustees of the University of Georgia shall,
through their duly authorized agent or officer,
present at the State treasury for redemption any
[294]
§ 1396
BRANCHES OF THE UNIVERSITY
§ 1389(2)
valid matured bond of this State as the property
. of such University, it shall be the duty of the
Governor to issue such trustees, in lieu of said ma-
tured bond so presented for payment, an obliga-
tion in writing in the nature of a bond, in amount
equal to the principal of matured bond, and falling
due fifty years from the date of such issue, the
same to bear interest at the rate of three and one
half per cent, per annum, and not subject to be
called in for redemption by the State before that
time, nor to be negotiated or transferred by said
trustees, said new bonds or obligations to be pay-
able to the said trustees alone, and to be issued
under the great seal of the State, and signed by
the Governor and countersigned by the secretary
of State. The interest thereon to be paid semi-
annually on the first days of January and July of
each year, the terms prescribed by this section for
the issue of such obligations to be fully expressed
in the body thereof, the amount of money neces-
sary to pay the interest on such obligations being
herein annually appropriated. Acts 1898, p. 68.
As to authentication of bond, see § 1263. As to trans-
fer of registered bonds, see § 1280. As to negotiability of
bonds, see § 4274.
§ 1396. (§ 1299.) Acts relative to University
not repealed. — The various Acts of the General
Assembly relative to said University, in force at
the time of the adoption of this Code, if not em-
braced herein and not inconsistent with what is so
embraced, are still of force.
This section applies to the asylum for the blind. See §
1415.
ARTICLE 2.
Branches of the University.
§ 1397.. (§ 1300.) Branches of the University.
— The Georgia State College for Women, at
Milledgeville; State Normal School, at Rock
College, Athens; State College of Agriculture and
Mechanic Arts, at Athens, with the Agricultural
Experiment Station connected therewith, at
Griffin; North Georgia Agricultural College, at
Dahlonega; Medical College of the University of
Georgia, at Augusta; the Georgia School of
Technology, at Atlanta; Georgia State Industrial
College for Colored Youth, at Savannah; District
Agricultural and Mechanical Schools; South
Georgia Agricultural and Mechanical College,
near Tifton; Georgia Normal School, at State s-
boro; Georgia State College for Women, at
Valdosta; Alexander H. Stephens Institute, at
Crawfordville; Agricultural Industrial and Nor-
mal School for Colored Teachers; Bowden State
Normal and Industrial College, at Bowden, are
branches of the University of Georgia, and are
governed in the manner prescribed in the respec-
tive acts incorporating the same. Acts 1884-5, p.
69; 1894, p. 63; 1889, p. 10; 1890-1, pp. 114, 118,
123, 126; 1893, p. 63; 1888, p. 49; 1877, p. 117; 1893,
p. 506; Act of Dec. 20, 1826; Act of Dec. 19, 1829;
Act of Dec. 20, 1833; Acts 1895, pp. 94, 95; 1906, p.
75; 1911, pp. 154, 159, 161; 1912, pp. 181, 182; 1914,
p. 155; 1916, p. 98; 1917, pp. 193, 195; 1918, p. 143;
1919, pp. 262, 364; 1920, p. 101; 1922, pp. 135, 174;
1924, pp. 165, 177.
As to agricultural and mechanical schools in each con-
gressional district, see § 1552.
Editor's Note. — The following additions to the branches
of the University are to be noticed. The District Agri-
cultural and Mechanical Schools by the Act of 1906 (Acts
1906, p. 72), see § 1552, name changed to Agricultural Dis-
trict Schools by the Act of 1911 (Acts 1911, p. 160); the
South Georgia Agricultural, Industrial and Normal Col-
lege by the Act of 1906 (Acts 1906, p. 75), name changed
to the South Georgia State Normal College by the Act
of 1914 (Acts 1914, p. 155); name again changed to the
Georgia State Women's College at Valdosta by the Act
of 1922 (Acts 1922, p. 174); the Alexander H. Stephens
Institute by the Act of 1916 (Acts 1916, p. 98); the Ag-
ricultural Industrial and Normal School for colored teach-
ers by the Act of 1917 (Acts 1917, p. 185); the Bowden
State Normal and Industrial School by the Act of 1919
(Acts 119, p. 262); the Georgia Normal School at States-
boro and the South Georgia Agricultural and Mechanical
College near Tifton by the Act of 1924 (Acts 1924, pp. 165,
177). The Act of 1911 (Acts 1911, p. 159) changed the name
of the Technological School to the Georgia School of Tech-
nology and the Act of 1922 (Acts 1922, p. 135) changed
the name of the Georgia Normal and Industrial College to
the Georgia State College for women.
In General. — This section simply designates certain in-
stitutions of the state as branches of the University, and
provides that such branches are to be governed "in the
manner prescribed in the respective acts incorporating the
same." Medical College v. Rushing, 1 Ga. App. 468,
471, 57 S. E. 1083.
The Medical College of Georgia is liable for the torts
of its agents in the conduct of its business and within the
scope of its authority. Medical College v. Rushing, 1
Ga. App. 468, 472, 57 S. E. 1083.
Act 1891 Made Normal School Part of University.— The
Act of 1891 (Acts 1890-91, p. 126), establishing the State
Normal School as a branch of the University conferred
upon the trustees of that institution authority "to ordain
and establish such rules and by-laws for the regulation
of the school and the training and governing of the stu-
dents not inconsistent with this act, as in their opinion
may be proper to secure the success of said school" the
powers and duties of this board of trustees have not been
abrogated or changed by any subsequent act of the leg-
islature. Davison-Nicholson Co. v. Pound, 147 Ga. 447,
94 S. E. 560.
§ 1398. (§ 1301.) Females admitted to branch
colleges. — 'All the branch colleges of the State
University of Georgia, now or hereafter estab-
lished, except the last two mentioned in the pre-
ceding section, [Georgia School of Technology
and Georgia State Industrial College for Colored
Youth] shall be open to all white female students
of proper age and qualifications, with equal rights
and privileges as those exercised and enjoyed by
the male students of such institutions, under such
rules and regulations as may be prescribed by the
several boards of trustees of said institutions.
Acts 1889, p. 123.
As to rights of females in general, see § 2167.
Editor's Note. — The reason for the insertion of the
names of the two schools in this section was due to the
fact that § 1397 had been amended several times since this
section appeared and therefore the Technological School
and the Georgia Industrial College were no longer "the
last two mentioned in the preceding section."
§ 1398(1). Admission of women to School of
/Commerce of Georgia School of Technology. —
It shall be lawful to admit women in the School
of Commerce of the Georgia School of Technol-
ogy at the branch thereof which is not located on
the campus and to confer degrees upon them un-
der the regulations to be adopted by the Local
Board of Trustees. Acts 1920, p. 283.
§ 1398(2). Ex-officio trustees of branch colleges.
— The Chairman of the Board of Trustees of the
University of Georgia, upon the passage of this
Act and biennially thereafter, is empowered to
designate and appoint not exceeding three mem-
bers from said Board of Trustees, upon each of the
Boards of the branch Colleges of the University
of Georgia, to-wit, the Georgia State College of
[295 ]
§ 1398(3)
ENGINEERING EQUIPMENT STATION
§ 1398(8)
Agriculture, the Georgia School of Technology,
the State Normal School, the North Georgia Agri-
cultural College, at Dahlonega, the Georgia State
Industrial College for Colored Youths; and when
so designated and appointed said Trustees shall be
ex-officio members of the several and. respective
Boards, and during the term of their appointment
and until their successors are designated and
qualified, shall be clothed with all the rights, pow-
ers and duties pertaining or incident to said trust.
And the Chancellor of the University of Georgia
and the State Superintendent of Schools shall be
ex-officio members of the .board of trustees of the
Georgia Normal School at Statesboro. The
President of the Alumni Association of the North
Georgia Agricultural College at Dahlonega shall
be an ex-officio member of the Board of Trustees
of said college, with all the rights, powers and
privileges now enjoyed by the present members
of said. Board of Trustees, thus adding one mem-
ber to Board as at present constituted. Acts
1'910, p. 74; 1920, p. 277; 1924, p. 165; 1925, p. 228.
Editor's Note.— The Acts of 1920 (Acts 1920, p. 277)
amended this section as it was first enacted (Acts 1910,
p. 74), by stating that this act should not apply to the
Georgia Normal and Industrial College.
A further amendment was made by the Act of 1924 (Acts
1924, p. 165), which provided that the chancellor of the
University and the State Superintendent of Schools should
be ex-officio members of the board of the Georgia Normal
School of Statesboro.
And again in 1925 the section was amended by the addi-
tion of the last sentence.
The power given the trustees by the Act of 1890-91 (es-
tablishing State Normal School) to make rules and regu-
lations for the State Normal School has not been abro-
gated or changed by any subsequent act of the legislature.
Davison -Nicholson Co. v. Pound, 147 Ga. 447, 94 S. 1$.
560.
A wide discretion is necessarily vested in the governing
board to determine the conditions on which persons may
deal with the institutions or student body; and if this
discretion is exercised in good faith, there will, in general,
according to respectable authority, be no liability to one
with whom the students have been forbidden to deal.
Davison -Nicholson Co. v. Pound, 147 Ga. 447, 94 S. E. 560.
§ 1398(3). Tuition fee of Georgia School of
Technology. — The local (board of Trustees of the
Georgia School of Technology be .authorized in
their discretion to fix and collect from the students
who attend said school, a reasonable tuition fee
which shall be charged, and collected from the
students under rules and regulations to be pro-
vided by said local board. Acts 1922, p. 114.
ARTICLE 2A.
Engineering Experiment Station.
§ 1398(4) Engineering experiment station es-
tablished.— To aid in the promotion of engineer-
ing and. industrial research, and for the more com-
plete development and utilization of the natural
resources of Georgia, and for the encouragement
of industries and commerce, and insuring the pub-
lic welfare of the people of Georgia consistent with
modern progress and preparedness there is here-
by established at and in connection with the Geor-
gia School of Technology, a department to be
known and designated as the State Engineering
Experiment Station. Acts 1919, p. 367.
§ 1398(5). Objects. — It shall be the object and
duty of said Experiment Station to conduct origi-
nal researches, perform and verify experiments,
and make tests and investigations in any or all •
branches of engineering, manufacturing and the
industries, and the sciences related thereto, and to
compile data relating to such researches, for the
promotion of the same in the interests of the
people of Georgia, particularly such as are engaged
in engineering and industry; also researches, in-
vestigations and experiments in connection with
the production, preparation and transportation of
materials utilized in engineering and industry; also
researches, investigations and, experiments relating
to transportation, road-building, drainage, irriga-
tion, flood protection, aeronautics, aerodynamics,
fuels, power, lighting, heating, refrigeration,
ventilation, sanitation, architecture and such other
researches, experiments, tests and investigations
bearing upon the industries, occupations and pub-
lic welfare of the people of Georgia as may in each
case be deemed advisable, practicable and within
the resources of said station. Acts 1919, pp. 367,
368.
§ 1398(6). Bulletins. — .Bulletins giving results
of said researches, investigations and experiments,
or reports of progress, shall be published at said
station at least once in twelve months, copies of
which shall be sent to persons, newspapers, insti-
tutions and libraries interested in research, engi-
neering, manufacturing and industry as may re-
quest the same, as far as the means of the station
will permit. Copies of said report are to be sent
to the State Engineer, the State Geologist, and
other State officials requesting same, free of
charge. Acts 1919, pp. 367, 368.
As to furnishing state librarian with public documents,
see § 195.
§ 1398(7). Appropriations to be paid to trustees
of School of Technology. — All moneys now or
hereafter appropriated by the Legislature for the
establishment and operation of the said engineer-
ing experiment station, together with any sums
which may be appropriated by the United States
Congress or apportioned to the State of Georgia
from the Treasury of the United States for pur-
poses substantially the same as specified in this
Act, shall be paid to the Trustees of the Georgia
School of Technology for the prosecution of the
work of the said Engineering Experiment Station
hereby authorized, provided that the Board of
Trustees of the said Georgia School of Technology
shall formally present to the Governor their ac-
ceptance of the conditions of this Act. Acts 1919,
pp. 367, 368.
§ 1398(8). Work to conform to Federal Law,
when aided by Federal appropriation. — In the
event of the Congress of the United States making
appropriations to the States and Territories for the
conduct of work similar to that hereinbefore
specified, the work of the said station is to conform
with the requirements imposed as the conditions
for such Federal appropriations, and as may be
hereafter accepted by the General Assembly of the
State of Georgia, in order that the work of the
State Engineering Experiment Station hereby
established may be aided and extended by means
of such Federal appropriations for engineering
and industrial research. Acts 1919, pp. 367, 369.
[ 296]
§ 1399
ACADEMY FOR THE BLIND
§ 1413
ARTICLE 3.
Farmers' Institutes.
§ 1399. (§ 1302.) Board of directors of Ex-
periment Station. — The board of directors of the
Georgia Experiment Station shall have conducted
throughout the State each year, during the season
most convenient to the agriculturists, a series of
farmers' institutes for the instruction of the citizens
of this State in the better methods of agriculture
in its various branches. These institutes shall be
held at such times and places as said hoard may
direct. The board, shall make such rules and reg-
ulations as it may deem proper for organizing
and conducting such institutes. In selecting
lecturers for said institutes, preference shall be
given to practical, successful farmers possessing
aptitude for the work. The exercises of such in-
stitutes shall be so arranged as to present the
results of the most recent investigations in practi-
cal agriculture. Acts 1889, p. 166.
§ 1400. (§ 1303.) Support of institute It shall
be the duty of said board to apply exclusively to
the support of said institutes any moneys which
may come into its possession under any act which
the Federal Congress may hereafter pass in aid of
farmers' institutes, and any moneys which may be
derived from any other source as a gift or dona-
tion in aid of farmers' institutes. Said board shall
account to the Governor for all such moneys,
quarterly, showing in detail amounts received,
sources whence derived, and how expended. Re-
ports as to moneys which may be received under
any act of the Federal Congress, as above indi-
cated, shall conform to congressional require-
ments. Biennially said board shall, through the
commissioner of agriculture, report to the Gov-
ernor, in detail, its acts and doings as to said in-
stitute. The biennial reports shall embrace all the
facts contained in the quarterly reports herein re-
quired.
As to necessity to send report to State Librarian, see
§ 195.
CHAPTER 2.
Academy for the Blind.
§ 1401. (§ 1304.) Location, etc., of Academy
for Blind. — An institution for the education of the
blind is located at Macon under the control of
seven trustees already appointed.
§ 1402. (§ 1305.) Trustees a body corporate.—
They are a bodjr corporate, and have all the
powers and duties appertaining to similar institu-
tions of this State, in their corporate capacity as
trustees of the Academy for the Blind.
§ 1403. (§ 1306.) Powers of trustees. — The
trustees have the power —
1. To appoint such officers, teachers, and ma-
trons as may be necessary; to prescribe their du-
ties, fix their salaries, and to remove or discontinue
them at pleasure.
2. To prescribe the course of studies, establish
the rates of tuition, and adjust the expenditures of
the institution.
3. To adopt such rules and regulations, not in
conflict with law, as the interest of the Academy
may require.
§ 1404. (§ 1307.) Education of indigent blind.
— All indigent blind persons, between the ages of
seven and twenty-five years, who shall have given
satisfactory evidence of having been a resident of
this State for at least two years prior to his or her
application, shall be selected by the trustees from
the different counties of this State, received into
the Academy, and supported and educated
gratuitously to the extent the funds will permit.
Acts 1882-3, p. 61.
§ 1405. (§ 1308.) Applicants, how apportioned.
— When there are more applicants than can be
accommodated, they shall be apportioned among
the several counties, according to representative
population.
§ 1406. (§ 1309.) Number of pupils, how reg-
ulated.— Unless the funds will otherwise permit,
there shall thereafter be but one indigent pupil from
the counties applying, and in case there are not
means enough to receive one from every county ap-
plying, those shall be received'first who first make
application. A beneficiary shall not remain at the
charge of the institution longer than four years.
§ 1407. (§ 1310.) Pay pupils, how received. —
All others than the indigent are to be received
upon such terms as the trustees may impose.
§ 1408. (§ 1311.) Treasurer must give bond. —
The treasurer of the board shall give bond and
security in the sum of three thousand dollars.
§ 1409. (§ 1312.) Trustees must report to Gov-
ernor.— The trustees .must make annual reports to
the Governor of all the affairs of the institution,
sending therewith the annual report of the princi-
pal or superintendent, and shall propose such al-
terations or improvements as they majr desire,
which the Governor shall lay before the General
Assembly with his annual message.
As to requirement to send copies to State Librarian, see
§ 195.
§ 1410. (§ 1313.) Board of visitors.— The Gov-
ernor shall appoint a board of ten visitors for said
Academy, who shall meet the board of trustees at
the Academy annually, at such time as the latter
may designate.
§ 1411. (§ 1314.) Powers and duty of visitors. —
Said board of visitors shall report to the Gover-
nor such matters as they may deem advisable,
which report shall be by the Governor laid be-
fore the General Assembly in connection with his
annual message.
§ 1412. (§ 1315.) Vacancy in board of trustees,
how supplied. — The trustees fill vacancies in their
own body. When a vacancy occurs and is filled,
it must be reported to the Governor. Their in-
eligibility is likewise the same as those last men-
tioned.
§ 1413. (§ 1316.) Statistics of the blind, how
obtained. — The receiver of each county must keep a
column for and receive the numbers of the blind
between the ages of seven and twenty-five, a
statement of which shall be obtained annually by
said board of trustees from the comptroller-gen-
[ 297
§ 1414
ACADEMY FOR THE DEAF AND DUMB
§ 1428
eral's office. Before the digest is sent by the tax-
receiver to the comptroller, the ordinary of each
county shall examine (with such receiver) his
list of the blind, and correct (by memoranda
thereto attached) any mistake.
§ 1414. (§ 1317.) List of indigent blind.— The
ordinary shall also take down the names of such
as are indigent, and procure their admission into
the asylum, if possible; and if from any cause
they are not received, he shall report to the board
of trustees the names, ages, and sex of such, who
shall keep a record of all such reports.
§ 1415. (§ 1318.) Section 1396 (as to laws kept in
force) applies to the asylum for the blind.
CHAPTER 3.
Academy for the Deaf and Dumb.
§ 1416. (§ 1319.) Academy for Deaf, how gov-
erned.— The Georgia school for the deaf shall be
governed by a board of seven trustees; the Gov-
ernor to have power to remove for cause at any
time, and to fill all vacancies that may occur in
said board. And said board of trustees shall meet
in Cave Spring, take charge of the affairs of said
institution for the deaf and dumb, and adopt such
by-laws for its government, in conformity to this
Chapter, as they may deem necessary. Acts 1877,
p. 32; 1892, p. 83.
The trustees of the asylums as such are not liable to
the process of garnishment. O'Neill v. Sewell, 85 Ga. 481,
11 S. E. 831.
§ 1417. (§ 1320.) Principal, how elected and to
whom responsible. — The principal of said insti-
tution is elected by said board of trustees, and
shall reside in the institution. He is responsible
to them, and his acts subject to their veto.
§ 1418. (§ 1321.) Subordinate officers, regula-
tions, etc. — Said principal has authority to nomi-
nate all his subordinate officers and employees,
subject to the approval of the board. He shall
make all regulations of internal police; shall au-
thorize all purchases of ordinary supplies, and
examine and certify to the correctness of bills of
such supplies to be paid by the treasurer.
§ 1419. (§ 1322.) Exclusive powers and duties
of principal. — He shall ibe the sole official me-
dium of communication between the board and
the subordinate officers and employees of the in-
stitution, and shall have the exclusive direction
and control of the system of religious and moral
instruction.
§ 1420. (§ 1323.) Board of visitors.— The Gov-
ernor may, in his discretion, appoint a board of
visitors, to consist of such a number as he thinks
best, and when appointed, their rights and duties
are the same as those of the visitors of the Acad-
emy for the Blind.
§ 1421. (§ 1324.) Contracts, how made valid.—
No contract of said board of trustees shall be
valid unless it is first recorded by the secretary
in a book kept for that purpose, signed by the
president and countersigned by said secretary.
§ 1422. (§ 1325.) Vacancy in board of trustees,
how filled. — When a vacancy occurs in said
board, the secretary or any member shall notify
the Governor within twenty days, and the va-
cancy must be filled within thirty days from said
notice.
§ 1423. (§ 1327.) Treasurer, how elected and his
duty. — The board of trustees shall elect a treas-
urer, who shall give good and sufficient bond, pay-
able to the president, for the faithful perform-
ance of his duties, and shall keep a full and ac-
curate account of all moneys received and paid
out, and make an annual report to the board; he
shall be required to keep his books in such con-
dition that the financial standing of the institu-
tion may be seen at any time. Acts 1877, p. 32.
§ 1424. (§ 1328.) Election and duty of secre-
tary.— The board of trustees shall elect a secre-
tary, whose duty it shall be to keep a neat and
true record of the meetings of the board, and of
other matters that may be deemed necessary,
and the offices of secretary and treasurer may be
conferred upon one person, if thought advisable.
§ 1425. (§ 1329.) Annual report of trustees. —
The board of trustees shall make an annual re-
port to the Governor, of all their acts and doings,
and a full statement of the condition of said in-
stitution, which report shall be submitted to the
legislature.
As to sending copies of report to State librarian, see
§ 195.
§ 1426. Who are entitled to admission as pupils.
— All persons in the State between the ages of
seven and twenty-five years, who are too deaf to
be educated in the common schools, and who are
otherwise in a condition mentally and physically
to receive instruction profitably, and free from
any immoral conduct or contagious disease, shall
be entitled to admission as pupils to all the privi-
leges of the respective departments of the Geor-
gia school for the deaf, free of cost, to remain
such a number of school terms or portion there-
of as the board of trustees, upon recommendation
by the principal, shall see proper to grant: Pro-
vided, no pupil shall be allowed to remain more
than twelve terms. Acts 1896, p. 83.
§ 1427. Shoes and clothing free of cost.— In
case parents or guardians are unable to furnish
the pupil with such clothing as may be prescribed
by the board of trustees, such clothing may be
supplied by the authorities of the school, free of
cost, upon certificate of the ordinary of the county
from which the pupil comes, with his official seal
attached, that said parent or guardian is not in a
pecuniary condition to furnish said clothing. All
pupils may be furnished shoes from the shop free
of cost.
§ 1428. Railroad fare, and care during vacation.
— In cases of great destitution, which fact shall be
made to appear by certificate of the ordinary of
the county under seal from which the pupil
comes, the railroad fare of such pupils coming to
and from the school may be paid from the sup-
port fund of the school; and in case such pupils
have no home to which they can be sent for the
vacations, the board of commissioners of their
county or other proper authority shall make the
[298]
§ 1429
PUBLIC SCHOOL SYSTEM
§ 1551(5)
necessary provision for their care during vaca-
tion.
§ 1429 (§ 1331.) Day-scholars may be admitted.
— The parent or guardian of any deaf and dumb
mute, or semi-mute, shall be permitted, if they
so desire, to sent such child to the State institu-
tion for the deaf and dumb, at Cave Spring, as
day-scholars, boarding such child at their own
expense outside of said institute at such con-
venient and accessible place as they may select.
§ 1430. (§ 1332.) Teachers may be educated.—
The board of trustees may, in their discretion,
select some educated young men of this State,
who may desire to learn the mute or sign langu-
age, upon the condition that they will obligate
themselves to teach in the institution as many
years as may be agreed upon by the board at the
time they enter the institution. Acts 1876, p. 31;
1858, p. 13.
§ 1431. (§ 1333.) Provisions of previous Chap-
ter applicable. — All the provisions of the preced-
ing Chapter not in conflict with the preceding
sections of this Chapter apply to the Academy
for the Deaf and Dumb, to its board of trustees
and visitors, its officers, and other officers of the
State or county upon whom any duty is enjoined,
the words "deaf and dumb" being substituted'
whenever the words "the blind" occur. The
board of trustees of the Academy for the Deaf
and Dumb, or any one or more of them, may in
the discretion of the Governor be removed by
him, upon recommendation of the board of
visitors of said institution, and he is authorized
to appoint their successors. Acts 1876, p. 31.
CHAPTER 4.
Public School System.
ARTICLE l.
Sections 1432-1551 — Superseded.
Editor's Note.— By the Acts of 1918, p. 225, the legislature
appointed a committee to prepare a Code of school laws
from the existing laws, for adoption or rejection by the
legislature in 1919. The Code prepared by this committee
was adopted as the Acts of 1919, p. 288, which specifically
enacted that it should be "substituted for the existing school
laws of this State, and all the existing school laws of this
State and all laws or parts of laws in conflict therein
are hereby repealed."
Notwithstanding the provision above quoted the Supreme
Court held in Orr v. Riley, 160 Ga. 480, 128 S. F. 669, that
even though § 1360 of the Code of 1895 was neither included
in the Code of 1910 nor this Code of school law, such omis-
sion nevertheless would not operate to repeal it, nothing
appearing in either in conflict with it. See § 1551 (94^4).
The above quotation was interpreted to mean that only
that part of the existing law which was in conflict with it
was repealed by this school Code. The court seemed to
have overlooked entirely the provision "and all the exist-
ing school laws of this State are hereby repealed,"
no reference at all being made to it. This decision was not
by a full bench. Likewise the Court of Appeals seems to
have overlooked this provision for in Board v. Hunt, 29
Ga. App. 665, that court construed and applied sections of
the old Code notwithstanding certain sections of the Code
of school law cover the identical subject matter. See note
under § 1551 (81). The legislature at its session in 1925
purported to amend § 1537 of the old law when as a matter
of fact the identical section was copied into the Code of
school law [see note under § 1551 (141)], thus falling into
the same error of disregarding the above provisions.
Very few, if any, of the important provisions of the old law
are omitted from this Code of school law, therefore the
old law from §§ 1432-1551 are omitted from this Code, the
Code of school law of 1919 and amendatory acts being set
out as §§ 1551 (1) et seq. There has been placed, however,
under each of the following sections references to the cor-
responding provisions of the old law.
Constitutional Provisions.
SECTION 1.
Taxation and School Funds.
§ 1551(1). For what purposes power of taxation
exercised. — The powers of taxation over the
whole State shall be exercised by the General
Assembly for the following purposes only:
For the support of the State government and
the public institutions.
For educational purposes, in instructing chil-
dren in the elementary branches of an English
education only. Acts 1919, pp. 288, 289.
For same provision in constitution, see § 6551.
§ 1551(2). Poll-tax.— No poll-tax shall be levied
except for educational purposes, and such tax
shall not exceed one dollar annually upon each
poll. Acts 1919, pp. 288, 289.
See § 917.
For same provision in constitution, see § 6555.
§ 1551(3). Limitation on taxation by counties.
— The General Assembly shall not have power to
delegate to any county the right to levy a tax for
any purpose, except for educational purposes; to
build and repair the public buildings and bridges,
to maintain and support prisons; to pay jurors and
coroners, and for litigation, quarantine, roads and
expenses of courts; to support paupers and pay
debts heretofore existing; to pay the county po-
lice, and to provide for necessary sanitation. Acts
1919, pp. 288, 289.
For same provision in constitution, see § 6562.
§ 1551(4). Funds for support of common
schools. — The poll-tax, any educational fund now
belonging to the State (except the endowment of,
and debt due to the University of Georgia) a
special tax on shows and exhibitions and on the sale
of spirituous and malt liquors, which the General
Assembly is hereby authorized to assess, and the
proceeds of any commutation tax for military
service, and all taxes that may be assessed on
such domestic animals as from their nature and
habits, are destructive to other property are here-
by set apart and devoted for the support of com-
mon schools. Acts 1919, pp. 288, 290.
For same provision in constitution, see § 6578.
§ 1551(5). Schools maintained by local taxa-
tion.— Authority may be granted to counties,
militia districts, school districts and to municipal
corporations, upon the recommendation of the
corporate authority, to establish and maintain
public schools in their respective limits by local
taxation; but no such laws shall take effect until
the same shall have been submitted to a vote of
the qualified voters in each county, militia dis-
trict, school district, or municipal corporation and
approved by two-thirds majority of persons vot-
ing at such election, and the General Assembly
[ 299 ] •
§ 1551(6)
STATE BOARD OF EDUCATION
§ 1551(11)
may prescribe who shall vote on such questions.
Acts 1919. DD- 288. 290.
For constitutional provision, see § 6579.
§ 1551(6) School funds supplemented in certain
counties. — The board of commissioners of roads
and revenues of all counties in the State of Geor-
gia having a population of not less than 200,000
he and they are hereby authorized and empowered
to supplement the funds of the board of education
of any independent system of schools in said
counties for any current year out of any funds in
the treasuries of said counties which may be as-
certained .by said board of commissioners of roads
and revenues before the end of the current year
not to be necessary for the purposes for which
levied and collected and especially from the tax
levied and collected to pay any other lawful in-
debtedness against the county; Provided, that
such funds shall be paid over to the county board
of education of any independent system of schools
only upon the written application of said boards
of education and upon determination that the pur-
poses for which applied are reasonably necessary;
and provided, further, that said funds shall be
used only for paying teachers and buildings and
maintaining schoolhouses or buying lots or build-
ings for use as schoolhouses in said counties; and
provided, further, that in no year shall said funds
in any county exceed the sum of one hundred
thousand dollars. All laws and parts of laws in
conflict with this Act be and they are hereby
repealed; Provided, however, that nothing in this
Act shall be construed as affecting any existing
laws relating to methods of taxation. Acts 1923,
pp. 120, 121.
§ 1551(7). Local school system not affected. —
Existing local school systems shall not be affected
by this Constitution. Nothing contained in the
first Section of this Article shall be construed to
deprive schools in this State, hot common schools,
from participation in the education fund of the
State, as to all pupils therein taught in the ele-
mentary branches of an English education. Acts
1919, pp. 288, 291.
For same provision in constitution, see § 6580.
By the "first section of this article" is clearly meant §
6576. Section 1551 (8) contains exactly the same provisions
however.— Fd. Note.
SECTION 2.
Common Schools.
§ 1551(8). Tuition free. Separate schools for
races. — There shall be a thorough system of com-
mon schools for the education of the children, as
nearly uniform as practicable, the expense of
which shall be provided for by taxation, or other-
wise. The schools shall be free to all children of
the State, but separate schools shall be provided
for the white and colored races. Acts 1919, pp.
288, 290.
For same provision in constitution, see § 6576.
elected by the people at the same time and man-
ner as the Governor and State-house officers are
elected, whose term of office shall be two years,
and until his successor is elected and qualified.
His office shall be at the seat of the government,
and he shall be paid a salary not to exceed two
thousand dollars per annum. The General As-
sembly may substitute for the State School Com-
missioner such officer or officers as may be deemed
necessary to perfect the system of public educa-
tion. Acts 1919, pp. 288, 290.
For same provision in constitution, see § 6580.
SECTION 3.
State School Commissioner.
§ 1551(a)- Creation of office; term, salary, etc. —
There shall be a State School Commissioner,
ARTICLE 2. •
State Board of Education.
§ 1551(10). Members; appointment; qualifi-
cation.— There shall be a State Board of Educa-
tion composed of six members, as follows: The
Governor, the State Superintendent of Schools,
and four other persons, who shall be appointed
by the Governor of the State, two for two years
and two for four years, their terms of office
thereafter to be for four years each, or until their
successors are appointed and qualified. At least
three of said appointees shall be men of practical
experience in teaching schools and of high stand-
ing in educational work, having at least three
years practical experience as a teacher in the
schools of Georgia, and being thoroughly con-
versant with the operation of rural schools.
Should a vacancy occur at any time in said
Board it shall be filled by the Governor; pro-
vided, that the nomination of the Governor for
membership on the State Board of Education
shall be subject to confirmation by the Senate,
and provided further, that an appointment made
when the Senate is not in session shall be effec-
tive until the Legislature convenes and acts on
the appointment. No person who is now or has
been connected with or employed by a school
book publishing concern shall be eligible to mem-
bership on said State Board of Education, and if
any person shall become so connected or em-
ployed after becoming a member of said Board
his place on said Board shall become vacant. Acts
1919, pp. 288, 291.
As to State superintendent as members of board, see §
1551 (62). As to gifts from school book publishers, see §
1551 (16).
A provision of the Acts of 1911, p. 94 was similar to this
section.
§ 1551(11). Oath of Members and Meetings of
board; compensation. — The said Board of Edu-
cation shall take oaths of office and enter upon
the discharge of their duties immediately after
their appointment. They shall meet in the office
of the State Superintendent of Schools. The
Governor shall preside over their body as Chair-
man of the Board when it is practicable for him
to be present, but when he cannot be present,
they shall select their chairman and proceed with
their business whenever a majority of the Board
is present. The Board shall meet at least quar-
terly in regular session and at any other time
when an emergency arises, and they shall be
called together by the Governor of the State or
State School Superintendent. The four ap-
[ 300 ]
§ 1551(12)
STATE BOARD OF EDUCATION
§1551^16)
pointees shall receive as compensation for their
services $250.00 per annum each, which shall be
paid out of the State Treasury on the warrant of
the Governor and be allowed their actual travel-
ing expenses in going and returning to their
homes, upon submitting a sworn itemized state-
ment, accompanied by proper vouchers, and not
otherwise. The total expenses for the four ap-
pointees shall not exceed $200. Acts 1919, pp.
288, 292.
A provision of the Acts of 1911, pp. 94, 96 was similar to
this section.
§ 1551(12). Powers and duties of board. — The
State Board of Education shall provide rules and
regulations for the supervision of all schools in
the State. They shall provide the course of
study for all common and high schools of the
State receiving State aid, they shall select and
make out a list of text-books to be taught in said
schools, which can be changed only every five
years; unless the peculiar conditions of any
county or community demand certain changes, in
which case, the County Board, together with the
County Superintendent, shall make application to
the State Board suggesting such changes and
give [for] their reasons therefor, whereupon if the
Board sees proper, their request shall be granted,
provided, this clause shall in no way affect the
present State' adoption of books. The Board of
Education shall be the final court of appeal to
hear and decide all matters which have been ap-
pealed from the State Superintendent of Schools.
They shall determine the necessary office force of
the State Superintendent of Schools, and shall
fix the compensation of the same. Acts 1919, pp.
288, 292.
See § 1551 (14).
As to appeal to state board from county superintendent,
see § 1551 (173). As to duties of state superintendent, see
§ 1551 (63). As to appeal from county board of education
to state board, see § 1551 (94).
The court will take judicial cognizance of the rules and
regulations issued for the supervision of schools. Board v.
Bacon, 22 Ga. App. 72, 77, 95 S. E. 753.
A provision of the Acts of 1911, pp. 94, 96 was similar to
this section.
It is the opinion of the editors that the word "for," in-
closed in brackets, should be omitted to ascertain the legis-
lative intent. TS,d. Note.
§ 1551(13). School districts, distribution of
school fund and normal instruction. — Each
count}' in the State shall constitute a school dis-
trict and the public school funds shall be appor-
tioned among the several districts by the State
Board of Education as now provided by law.
They shall also provide for normal instruction of
teachers in each of the districts, either by in-
stitutes or otherwise. They shall have power to
compel the attendance of teachers upon such
normals and institutes, to provide penalties for
non-attendance, to provide for the examination
of the teachers of said State, and to grant licenses
to those that are qualified who desire a State or
special license. Acts 1919, pp. 288, 293.
As to undistributed school fund, see § 1551 (75). As to
county institutes, see § 1551 (79).
A provision of the Acts of 1911, pp. 94, 96 was similar to
this section.
§ 1551(14). An advisory and appellate body. —
The State Board of Education shall constitute an
advisory body, with whom the State School
Superintendent shall have the right to consult
when he is in doubt as to his official duty, and
also a body in the nature of a court to which ap-
peals shall be made from the decisions of the
State School Superintendent upon any question
touching the construction or administration of the
school laws, and the decision of the State Board
shall be final and conclusive. Appeals to the
State Board must be made through the County
Superintendent in writing, and must distinctly set
forth the question at law, as well as the facts, in
the case upon which the appeal is taken. Upon
any question involving the construction or admin-
istration of the school laws, the concurrence of
a majority of the whole Board shall be necessary
in order to give validity to the decision. Acts
1919, pp. 288, 293.
As to powers and duties of board, see § 1551 (12).
This section is similar to § 1436 of the Code of 1910.
When Appeal Provision Applicable. — The right of appeal
given in this section exists only when the county board of
education has heard and decided some matter of local con-
troversy in reference to the construction or administration
of the school law, and is confined to the parties to such
controversy; but is not applicable to a direct proceeding
brought against such board to compel the discharge of
some official duty. Bryant v. Board, 156 Ga. 688, 119 S.
E). 601.
§ 1551(15). Investigation of higher institution
of learning. — No charter giving the right to con-
fer degrees or issue diplomas shall be granted by
any proposed institution of learning within the
State of Georgia until the proper showing has
been made to the State Board of Education that
the proposed University, College, Normal or
Professional School shall give evidence of its
ability to meet the standard requirements set up
by the State Board of Education. Acts 1919, pp.
288, 293.
§ 1551(16). Gifts from or offer of gifts by
school-book publishers or their agents. — No
member of the State Board of Education or any
appointees of said Board or any other person or
persons that has the authority of selecting or in
any way aiding in the selection of school books
for the schools of Georgia shall not for them-
selves or any members of their respective families
receive any gift, compensation or remuneration
of any kind from any school-book publishing
house, corporation, individuals, or the agents or
representatives of either, nor shall any person.
publishing house or corporation engaged in pub-
lishing or the sale of school books offer to any of
said Board or their families or appointees any
gift, compensation or remuneration, directly or
indirectly. Any person violating the provisions
of this Section shall be guilty and punishable for
a misdemeanor. Should any of the aforemen-
tioned publishing houses, corporations or persons
engaged in publishing or selling school books of-
fer to any of the aforementioned officers, their
families or appointees, any such compensation,
remuneration or reward of any kind, it shall be
their duty to report the same to the grand juries
of their respective counties, and on failure or re
fusal to do so, they or either of them so failing or
refusing shall be guilty and punishable for a mis-
demeanor, and such officers on conviction there-
[301]
§ 1551(17) SCHOOL-BOOK COMMISSION, TEXTBOOKS AND SUPPLIES § 1551(20)
of shall be removed from office. Acts 1919, pp.
288, 294.
See § 1551 (10).
As to provision in penal code relating to this subject, see
P. C, §§ 698, 698 (1).
A provision of the Acts of 1911, pp. 94, 107 was similar to
this section.
ARTICLE 3.
School-Book Commission, Textbooks and
Supplies.
SECTION 1.
School-Book Commission.
§ 1551(17). School-Book Commission Created.
— The State Board of Education is the School-
book Commission of the State of Georgia. The
members of the said School-book Commission
shall serve without compensation, the Governor
shall be president and the State School Superin-
tendent shall be the executive officer of said
School-book Commission. Acts 1919, pp. 288,
294.
This section is similar to § 1437 of the Code of 1910.
§ 1551(18). Oath of Office; — Before transacting
any business relating to the duties of this Com-
missioner [Commission], they shall each take an
oath before some person authorized to administer
same, to faithfully discharge all the duties im-
posed upon them as members of the said School-
book Commission, and that they have no interest,
direct or indirect, in any contract that may be
made under this article, and will receive no per-
sonal benefit therefrom. Acts 1919, pp. 288, 295.
This section is similar to § 1438 of the Code of 1910.
SECTION 2.
Uniform Textbooks.
§ 1551(19). Uniform Textbooks Prescribed.— A
uniform series of textbooks shall be used in all
the common schools of this State, to be adopted
in the manner and for the time hereinafter pro-
vided, which uniform series of books shall be in
use in all the common schools of this State, and
shall include the following elements of an English
education only, to-wit: Orthography, reading, writ-
ing, arithmetic, geography, English language
lessons, English grammar, History of Georgia,
containing the Constitution of the State of Geor-
gia, History of the United States, containing the
Constitution of the United States, physiology and
hygiene, the elementary principles of agriculture
and civil government, the elementary rudiments
of vocal music, provided that teaching the ele-
mentary rudiments of vocal music shall be op-
tional with the county and city boards of educa-
tion and not required as in the case of the other
elements of an English education, and such other
branches of study in addition to the above men-
tioned, as may be from time to time provided by
statute, and not conflicting with the Constitution
of this State, provided that none of said text
books so adopted shall contain anything of a par-
tisan or sectarian character, and provided that no
county, city or town, that levies a local tax for the
purpose of maintaining a system of graded
schools which local tax, together with the State
fund, is sufficient to maintain said system of
graded schools, for as long a period as eight
months in each year, shall be included in the pro-
visions of this article, but if the duly constituted
authorities in charge of any local system in this
State should desire to use any of the books se-
lected by said School Book Commission, the lo-
cal system shall have the privilege of buying
books at the same price and on the same terms
at which they are furnished to the common
schools of the State. Acts 1919, pp. 288, 295;
1922, p. 150; 1922, pp. 155, 156.
As to penalty for violation, see P. C, § 698 (2).
As to adoption of school books, see §§ 1551 (41), 1551 (42).
As to provision in penal code punishing use of school books
other than the adopted ones, see P. C, § 697.
Editor's Note. — This section as it originally read (Acts
1919, pp. 288, 295) made no provision for the teaching uf
vocal music. The Act of 1922 (Acts 1922, p. 150) provided
that it should be taught in counties having a population
of not less than 14,598 and not more than 14,600. This was
in turn amended again by the Act of 1922 (Acts 1922, p.
155) which provided that the teaching of vocal music should
be optional with the county and city boards.
This section is similar to § 1439 of the Code of 1910.
Forcing School to Teach Beyond Common School. —
Where a common school only was maintained in a school
district, in which were seven grades, none of them be-
ing beyond the common-school grades, and there being
only sufficient funds arising from the taxes levied for this
purpose to maintain the common school, the authorities
could not be compelled by mandamus to admit a child,
though within the school age, who had completed the
seven grades, for the purpose of having such pupil classed
and taught in a grade higher and beyond the last com-
mon-school grade. Callihan v. Reid, 149 Ga. 704, 101 S.
E. 914.
§ 1551(20). Addition to the state course of study.
Bible reading. — Health and hygiene and special in-
structions as to the nature of alcoholic drinks and
narcotics; the elements and principles of agri-
culture; the elements of civil government shall be
taught in the common or public schools of Geor-
gia as thoroughly and in the same manner as
other like required branches, and the Board of
Education of each county and local system of
this State shall adopt proper rules to carry the
provisions of law into effect. Provided, however,
that the Bible, including the old and the new
Testament shall be read in all the schools of this
State receiving State funds, and that not less than
one Chapter shall be read at some appropriate time
during each school day. Upon the parent or
guardian of any pupil filing with the teacher in
charge of said pupil in the public schools of this
State, a written statement requesting that said
pupil be excused from hearing the said Bible
read as required under this Act, such teacher
shall permit such pupil to withdraw while the
reading of the Bible as required under this Act is
in progress. Such request in writing shall be suf-
ficient to cover the entire school year in which
said request is filed. Acts 1919, pp. 288, 296;
1921, pp. 156," 157.
Editor's Note. — This section has been amended since it
appeared in the Code of School Laws of 1919 (Acts 1919,
pp. 288, 296) by the Act of 1921 (Acts 1921, p. 156) which
provides that one chapter of the Bible shall be read on
each school day in every school receiving state funds and
that children may be excused from attending such read-
ing by a note from their parent or guardian.
This section is similar to §§ 1464-5 of the Code of 1910.
[ 302 ]
§ 1551(21)
UNIFORM TFXTBOOKS
§ 1551(26)
§ 1551(21). Instruction in essentials of Consti-
tution, American institutions, etc. — All schools and
colleges in this State that are sustained or in any
manner supported by public funds shall give in-
struction in the essentials of the United States
Constitution and the Constitution of Georgia, in-
cluding the study of and devotion to American
institutions and ideals, and no student in said
school and college shall receive a certificate of
graduation without previously passing a satis-
factory examination upon the provisions and
principles of the United States Constitution and
the Constitution of the State of Georgia. Acts
1923, p. 130.
As to conferring degrees, see § 1391.
§ 1551(22). Further duties of the commission. —
The School-book Commission shall consider the
merits of the books, taking into consideration the
subject matter, the printing, binding and material
and mechanical qualities and their general suita-
bility and desirability for the purposes intended
and the price of the books, and they shall give due
consideration and weight to the reports and rec-
ommendations of the sub-commission; provided,
that no text-book, the subject-matter of which is
of inferior quality, shall be adopted by the School-
book Commission. The School-book Commis-
sion shall select and adopt such books as will, in
their best judgment, accomplish the ends desired.
Acts 1919, pp. 288, 296.
This section is similar Jo § 1443 of the Code of 1910.
§ 1551(23). Bids, advertisements, terms. — The
School-book Commission shall meet in the office
of the State Superintendent not later than Sep-
tember 1, 1903, and advertise in such manner and
form as they may deem best, that, at a time to be
fixed by the commission to be named in the ad-
vertisement, and not later than November 1, 1903,
the School-book Commission will receive at the
office of the State School Superintendent in the
City of Atlanta, sealed bids or proposals from the
publishers of school-books for furnishing books
to the public common schools of the State of
Georgia through agencies established by said
publishers in the several counties and places in
counties in the State, as may be provided for in
such regulations as the School-book Commission
may adopt and prescribe. The bids or proposals
shall be for furnishing the books specified for a
period of five years, and no longer. The bids or
proposals shall state specifically and clearly the
retail price at which each book will be furnished,
and also the exchange price for the introduction
of such books. Each bid or proposal shall be ac-
companied by specimen copies of each bid and all
books to he furnished in said bid; and it shall be
required that each bidder shall deposit with the
Treasurer of the State of Georgia a sum of
money such as the School-book Commission may
require, of not less than five hundred dollars,
according to the number of books each bidder
may propose to supply, and such deposit shall be
forfeited absolutely to the State if the bidder shall
fail or refuse to make and execute such contract or
bond as is hereinafter required within such time as
the School-book Commission may require, which
time shall not be later than January 1, 1904, and
shall also be stated in the advertisement. All
bids shall be sealed and deposited with the State
Superintendent of Schools, to be by him delivered
to the School-book Commission when they are
in executive session for the purpose of consider-
ing the same, when they shall be opened in the
presence of the School-book Commission; pro-
vided, that the School-book Commission shall
have authority, upon the acceptance of any bid
and the execution of any contract to furnish
school books under the provisions of this Article,
to allow such time, after January 1, 1904, as may
be deemed by the Commission reasonable and
necessary (not more than sixty days), to the con-
tractor making such bid or contract, within
which to furnish to all the schools of this State
coming under the provisions of this Article, with
all the books contracted to be furnished. Acts
1919, pp. 288, 296.
This section is similar to § 1444 of the Code of 1910.
§ 1551(24). Bids may be rejected.— The School-
book Commission shall have and reserve the
right to reject any and all bids or proposals if the
Commission be of the opinion that any or all bids
should, for any reason, be rejected, and in case
they fail from among the bids or proposals sub-
mitted to select any book or books upon any of the
branches of study provided for in this Article
they may re-advertise for sealed bids or proposals
under the same terms and conditions as before
and proceed in their investigation in all respects
as they did in the first instance and as required by
the terms and provisions of this Article. Acts
1919, pp. 288, 297.
This section is similar to § 1445 of the Code of 1910.
§ 1551(25). Adoption.— It shall be the duty of
the School-book Commission to meet at the time
and place noted in said advertisement and take
out the specimen copies submitted and upon
which bids are based. It shall be the duty of the
School-book Commission to open and examine all
sealed proposals submitted and received in pur-
suance of the notice provided for. It shall then be
the duty of the School-book Commission to ex-
amine and consider carefully all such bids or pro-
posals, and determine, in the manner provided in
this Article what book or books upon the branches
herein above-mentioned or that hereafter may be
added by the School-book Commission, or that
may be hereafter provided for in this Article,
shall be selected and adopted, taking into con-
sideration the size, quality as to subject-matter,
material, printing, binding, and the mechanical
execution and price and the general suitability for
the purposes desired and intended. Acts 1919,
pp. 288, 298.
This section is similar to § 1446 of the Code of 1910.
§ 1551(26). Notice to Publisher, and the con-
tract.— After such adoption shall have been made,
the said School-book Commission shall, by reg-
istered letter, notify the publishers or proposers
to whom contracts have been awarded, and it
shall then be the duty of the Attorney-General of
the State to prepare the contract or contracts in
accordance with the terms and provisions of this
Article, and the contract shall be executed by the
Governor and attested bv the Secretary of State
[ 303 ]
§ 1551(27)
UNIFORM TliXTBUUKb
§ 1551(33)
with the seal of the State attached upon the part
of the State of Georgia, and shall be executed
in triplicate, one copy to be kept by the contrac-
tor, one copy by the School-book Commission, and
copied in full upon the minute-book of the Com-
mission, and one cop}^ to be filed in the office of
the Secretary of State. Acts 1919, pp. 288, 298.
This section is similai to § 1447 of the Code of 1910.
§ 1551(27). Bond to be given by the contractor.
— At the time of the execution of the contract the
contractor shall enter into a bond in the full sum
of not less than one thousand dollars nor more
than twenty thousand dollars, payable to the
State of Georgia, the amount of the bond within
said limits to be fixed by said School-book Com-
mission, conditioned upon the faithful, honest and
exact performance of the contracts, and shall
further provide for the payment of reasonable at-
torney's fees in case of recovery on any suit upon
the same, with three or more good and solvent
sureties, actual citizens and residents of the State
of Georgia, or any guarantee company authorized
to do business in the State of Georgia may be-
come the surety on the bond; and it shall be the
duty of the Attorney-General to prepare and ap-
prove the bond, provided, however, that the bond
shall not be executed in a single recovery, but
may be sued upon from time to time, until the
full amount thereof shall be recovered; and the
School-book Commission may, at any time, by
giving thirty days' notice, require additional se-
curity or additional bond within the limits pre-
scribed. Acts 1919, pp. 288, 298.
This section is similar to § 1448 of the Code of 1910.
§ 1551(28). Deposit by bidders; forfeitures,
and recovery on bonds. — 'When any persons, firm
or corporation shall have been awarded a contract
and submitted therewith the bond as required
hereunder, the School-book Commission through
its secretary, shall so inform the Treasurer of the
State, and it shall then be the duty of the Treas-
urer of the State, to return to such contractor the
cash deposit made by him; and the School-book
Commission, through its secretary, shall inform
the Treasurer of the State of the names of the
unsuccessful bidders or proposers, and the Treas-
urer of the State shall, upon receipt of this no-
tice, return to the unsuccessful bidders or pro-
posers the amount deposited in cash by the un-
successful bidders or proposers at the time of the
submission of their bids. But should any person or
persons, firm, company or corporation fail or refuse
to execute the contract and submit therewith his
bond as required within thirty days of the award-
ing of the contract to him and the mailing of the
registered letter containing the notice (and it is
hereby provided that the mailing of the registered
letter shall be sufficient evidence that the notice
was given and received), the cash deposit shall
be deemed and declared forfeited to the State of
Georgia and it shall be the duty of the Treas-
urer to place the cash deposit in the Treasury of
the State to the credit of the school fund, and pro-
vided, further, that any recovery had on any bond
given by any contractor shall inure to the benefit
of the school fund of the State, and when collected
shall be placed in the Treasury to the credit of
the school fund and be pro-rated among the sev-
eral counties of the State. Acts 1919, pp. 288, 299.
This section is similar to § 1449 of the Code of 1910.
§ 1551(29). Suit on bond, how brought. — And
in case any contractor shall fail to execute specifi-
cally the terms and provisions of his contract,
the School-book Commission is authorized, and
directed to bring suit upon the bond of such con-
tractor for the recovery of any and all damages,
the suit to be in the name of the State of Geor-
gia and the recovery for the benefit of the public
school fund. Acts 1919, pp. 288, 300.
This section is similar to § 1450 of the Code of 1910.
§ 1551(30). Contract may be changed.— But
nothing in this Article shall be construed so as to
prevent the School-book Commission, and any
other contractor agreeing thereto, from in any
manner changing or altering any contract, pro-
vided four members of the State School-book
Commission shall agree to the change and think
it advisable and for the best interest of the pub-
lic schools of the State. In all other matters a
majority of said School-book Commission shall
control. Acts 1919, pp. 288, 300.
This section is similar to § 1451 of the Code of 1910.
§ 1551(31). State not liable to contractor. — It shall
be always a part of the terms and conditions of
any contract made in pursuance of this Article
that the State of Georgia shall not be liable to
any contractor in any manner, for any sum what-
ever; but all such contractors shall receive their
pay or consideration in compensation solely and
exclusively derived from the proceeds of the sate
of books, as provided for in this Article. Acts 1919,
pp. 288, 300.
This section is similar to § 1452 of the Code of 1910.
§ 1551(32). Standard of books.— The books
furnished under any contract shall be equal in all
respects to the specimen or sample copies fur-
nished with the bids; and it shall be the duty of
the State Superintendent of Schools to preserve
in his office, as the standards of quality and excel-
lence to be maintained in such books during the
continuance of such contract, the specimen or
sample copies of all books which have been the
basis of any contract, together with the original
bid or proposal. Acts 1919, pp. 288, 300.
This section is similar to § 1453 of the Code of 1910.
§ 1551(33). Prices of books.— It shall be the
duty of all contractors to print plainly on the
back of each book the contract price as well as
the exchange price at which it is agreed to be
furnished, but the books submitted as sample or
specimen copies with the original bids shall not
have the price printed on them before they are
submitted to the Commission, and the School-
book Commission shall not in any case contract
with any person, publisher or publishers for the
use of any book or books which are to be or shall
be sold to patrons for use in any public school in
this State at a price above or in excess of the price
at which such book or books are furnished by said
persons, publisher or publishers under contract
to any State, county or school district in the
United States under like conditions prevailing in
that State and in this Article; and it shall be
[304]
§ 1551(34)
UNIFORM TEXTBOOKS
§ 1551(39)
stipulated in each contract that the contractor is not
now furnishing, under contract, any State, county
or school district in the United States where like
conditions prevail as are prevailing in this State
and under this Article, the same book or books
as are embraced in said contract at a price lower
or less than the prices stipulated in the said con-
tract, and that in case said contractors shall here-
after during the term of the contract, contract to
furnish, or furnish, to any State, county or school
district such book or books at a lower price than
that named in the contract, such lower price shall
become the price of such book or books under the
contract entered into with the said School-book
Commission, and the said School-book Commis-
sion is hereby authorized and directed at any time
they find that any books are being sold at a
lower price, under contract, to any State, county
or school district aforesaid to sue upon the bond
of the contractor and recover the difference between
the contract price and the lower price at which
they find the books are being sold. Acts 1919,
pp. 288, 301.
As to illegal sale of books, see P. C, § 69S.
This section is similar to § 1454 of the Code of 1910.
§ 1551(34). Exchange of Books and Price. —
The said School-book Commission shall stipulate
in the contract for the supplying of any book or
books, as herein provided, that the contractor or
contractors shall take up the school books now in
use in this State and receive the same in exchange
for new books at a price not less than fifty percent
of the contract price, but the exchange period shall
not extend beyond the limit of one year from the
time of the expiration of contracts existing in
counties in which such change shall be required
under this Article. And each person or publisher
making any bid for the supplying of any books
hereunder shall state in such bid or proposal the ex-
change price at which such book or books shall be
furnished. Acts 1919, pp. 288, 302.
This section is similar to § 1455 of the Code of 1910.
§ 1551(35). Proclamation Announcing Con-
tracts.— As soon as the Commission shall have
entered into a contract or contracts for the furnish-
ing or supplying of books for use in the public
schools, it shall be the duty of the Governor to is-
sue his proclamation announcing such fact to the
people of the State. Acts 1919, pp. 288, 302.
This section is similar to § 1456 of the Code of 1910.
§ 1551(36). Depository and Distribution of
Books.— The party or parties with whom the con-
tract or contracts shall be made shall establish and
maintain in some city in this State a depository
where a. stock of their books sufficient to supply all
the immediate demands shall be kept. They shall
also establish and maintain not less than one nor
more than three agencies in ever}' county in the
State as the State School-book Commission shall
deem advisable and demand, for the distribution of
the books to the patrons; but the contractor shall
also be permitted to make arrangements with
merchants or others for the handling and distribu-
tion of the books. Any party not living con-
veniently near an agency or county depository
may order any books desired from the central de-
pository direct, and it shall be the duty of the con-
tractor to deliver any books so ordered to the per-
son so ordering to his post-office address, freight,
express, postage or other charges prepaid, at the
retail contract price, provided, that the price of
the book or books so ordered shall be paid in
advance. All books shall be sold to the consumer
at the retail contract prices, and on the cover of
each book shall be printed the following: "The
price printed hereon is fixed by a State contract,
and any deviation therefrom shall be reported to
your county School Superintendent or to the State
School Superintendent at Atlanta;" and should
any party contracting to furnish books as provided
for in this Article fail to furnish them, or other-
wise breach his contract, in addition to the right of
the State to sue on the bond herein above required,
the County Board of Education may sue in the
name of the State of Georgia in any court having
jurisdiction and recover on the bond of the con-
tractor the full value of the books so failed to be
furnished for the use and benefit of the school fund
of the county; provided, that the right of action
given to the County Board of Education shall be
limited to breaches of the contract committed in
that county. Acts 1919, pp. 288, 302.
This section is similar to § 1457 of the Code of 1910.
§ 1551(37). Powers of Commission. — The
School-book Commission maj' from time to time
make any necessary regulations not contrary to
the provisions of this Article, to secure the prompt
distribution of the books herein provided for and
the prompt and faithful execution of all contracts:
and it is expressly now provided that said Com-
mission shall maintain its organization during the
five years of the continuance of the contract, and
after the expiration of the same to review such of
them as they deem advisable, or re-advertise for
new bids or proposals as required by this Article
in the first instance, and enter into such other con-
tracts as they may deem for the best interest of the
patrons and the public schools of the State; pro-
vided, that any contract entered into or renewed
shall be for a term of five years. Acts 1919, pp. 288.
303.
This section is similar to § 1458 of the Code of 1910.
§ 1551(33). Superintendent to issue circular
letter. — As soon as practicable after the adoption
provided for in this Article the State School Sup-
erintendent shall issue a letter to each County
Superintendent and City Superintendent in the
State, and to such others as he may desire to send
it, which letter shall contain a list of books
adopted, the prices, location of agencies, method
of distribution and such other information as he
may deem necessary. Acts 1919, pp. 288, 303.
This section is similar to § 1459 of the Code of 1910.
§ 1551(39). Books to be used. — The books
adopted under the provisions of this Article shall
be used to the exclusion of all others on the same
subject in all the public common schools in the
State; provided, that supplementary readers may
be used in any of the common schools of the State,
but even supplementary readers shall not be used
until after the regular readers prescribed have been
completed, and in no case shall supplementary
readers be used to the exclusion of the regular
[ 305 ]
§ 1551(40)
FURNISHING BOOKS AND SUPPLIES
§ 1551(46)
readers adopted under this Article. Acts 1919, pp.
288, 304.
As to illegal use of school books, see P. C, § 696.
This section is similar to § 1460 of the Code of 1910.
§ 1551(40). Penalties for violating provisions of
this article. — If any County School Superin-
tendent fails or refuses to enforce the provisions of
this Article, said county shall receive no part of
the public school fund of the State until the provi-
sions of Article have been complied with. Any
teacher of a public common school violating the
provisions of this Article shall not receive any
salary so long as he shall fail to carry out said pro-
visions. Acts 1919, pp. 288, 304.
This section is similar to § 1461 of the Code of 1910.
§ 1551(41). Adoptions; terms of contract. —
The adoptions made under the provisions of this
Article shall continue for five years from the first
day of January, 1904, and any adoption of books
made after this time shall terminate with all other
adoptions on the first day of January, 1904, and all
contracts for school books made by County
Boards of Education now existing and extending
beyond the first of January, 1904, shall not be
affected by this Article, but no new contracts shall
be made by any county board of Education, or by
the Board of Education of any city or town in this
State, except the Boards of Education in Georgia
having under their control a system of graded
schools in part supported by local taxation and
maintained for at least eight months in each year.
Acts 1919, pp. 288, 304.
As to textbooks prescribed, see § 1551 (19).
This section is similar to § 1463 of the Code of 1910.
§ 1551(42). Adoption of school books and the
establishment of exchange rates. — It shall be the
duty of the State Board of Education, acting as the
State Text-Book Commission, to adopt a series of
school books for the schools of the State accord-
ing to the laws now governing the adoption of
school books; Provided, that the said text-book
commission shall not be limited or restrained by,
or restricted to the fifty per cent, exchange rate for
old books as provided in the Act of 1903, known
as the State Uniformity Act, but the said State
Text-Book Commission is hereby authorized and
directed to obtain the best exchange rate for old
books possible, Provided, That the exchange rate
or allowance for the old books shall be as much as
is allowed by the publisher of the new book as the
rate allowed in any other State under like condi-
tions and terms of adoption; Provided, the change
of books made under this Act shall not exceed
fifty per cent, of the entire list for an adoption
period. All the terms, conditions and benefits ob-
tainable and applicable, in the State Uniformity
Act of 1903, and also of the Act of 1916, approved
August 8th, known as the Yeomans' Act, shall
apply to and be available for all the schools of this
State governed by the adoption made under this
Act. Acts 1923, Ex. Sess., pp. 18, 19.
As to textbooks prescribed, see § 1551 (19).
SECTION 3.
Furnishing Books and Supplies.
§ 1551(43). Books, how purchased, sold, or
furnished free.-— All Boards of Education of
counties, cities, local school systems, separate
school districts, and district agricultural schools,
shall adopt all school books required by the course
of study in their schools, other than the regular
basal elementary school books provided for by
the uniform text-book law, Section 1432s et seq.,
from an approved list issued by the State Board of
Education; and shall purchase, and in their discre-
tion may sell, rent or furnish free all school books
to pupils attending their schools, and for that pur-
pose may use such part of the school funds, or
any other funds coming into their hands, as may
be necessary for the purchase of such books. Acts
1919, pp. 288, 304.
A provision of the acts of 1916, p. 104 was similar to this
section.
§ 1551(44). Local option as to free school
books. — For the purpose of furnishing free school
books, either by renting, lending or giving them to
the children of the State, any county, city, separate
districts, or independent school districts may have
the right to use a part of this school fund derived
from State appropriation, local taxation, gifts or
bequests, according to the wish of the local school
authorities. If a county as a whole wishes to rent,
lend, or give free books, the question may be
determined by the Board of Education of the
county. If a local or separate district wishes to so
furnish books the question may be determined by
the Board of Trustees of such district, but must be
approved by the County Board of Education. If
the books are rented to the children, the rental
price shall in no event be greater than fifty per
cent, of the price of the book.
For the purpose of carrying out the provisions
of this section, it shall be the duty of the State
School Board, through the State Superintendent
of Education, to devise plans, methods, rules and
regulations governing the same. Acts 1923, Ex
Sess., pp. 18, 19.
§ 1551(45). Indigents furnished books free. —
School boards of any division handling school
funds, are authorized to furnish books free to
children whose parents or guardians, in the judg-
ment of the school board, are unable to provide
their children with books. Acts 1923, Ex. Sess., pp.
18, 19.
§ 1551(46). Filing of copies and list of books
with prices. — All publishers of school books, or
persons desiring to offer school books, other than
those basal elementary text-books provided for
under the uniform text-book law, Section 1551(17)
et seq., for the use of pupils in the public schools
of Georgia, as hereinafter provided, shall file in
the office of the State Superintendent of Schools a
copy of each book proposed to be offered, together
with the list price as shown by the publisher's
catalogue, and such books shall be approved and
placed upon a list issued by the State Board of
Education, provided the persons or publishers
offering said books comply with the provisions of
this Section, and then they may be legally adopted
and purchased by any public school authorities.
No revised or different edition of any such book
shall be used in the public schools of Georgia un-
less a copy of such edition has been filed in the
office of the State Superintendent of Schools, to-
[ 306]
§ 1551(47)
FURNISHING BOOKS AND SUPPLIES
§ 1551(52)
gether with the publisher's list thereof. The State
Superintendent of Schools shall carefully preserve
in his office the sample copies of all such books
filed and approved by the State Board of Educa-
tion, and the prices thereof. Acts 1919, pp. 288, 305.
A provision of the Acts of 1916, p. 105 was similar to
this section.
§ 1551(47). Sworn statement to be filed.— Each
publisher of any such book filed shall also file in
the office of the State Superintendent of Schools
a sworn statement giving the net wholesale price
at which, each book is sold anywhere in the United
States; the said sworn statement shall also give the
list price and the lowest exchange price given any-
where in the United States when old books on the
same subject and of like kind and grade, but of a
different series, are received in exchange. Acts
1919, pp. 288, 305.
A provision of the Acts of 1916, p. 105 was similar to
this section.
§ 1551(48). Bond of publisher, amount and con-
dition.— Each publisher shall file with the State
Superintendent of Schools a bond payable to the
State of Georgia, with some surety company
authorized to do business in the State of Georgia,
as surety thereon, in a sum to be determined by the
State Superintendent of Schools, said sum being
not less than one thousand ($1,000.00) dollars, nor
more than five thousand ($5,000.00) dollars, ac-
cording to the number of books filed; the bond to
be conditioned as follows: First, that the publisher
will furnish anjr of the books listed in said state-
ment, and in any other statement subsequently
filed by him within five years, to the Board
of Education of any county, city, local school
system, separate school district, and district
agricultural school in the State of Georgia at the
lowest net wholesale price contained in said state-
ment, which price shall not exceed the lowest
price the publisher has made elsewhere in the
United States, and that he will maintain said price
uniformly throughout the State of Georgia on the
books filed under the provisions of this Section.
Second, that the publisher will reduce such price
automatically to the State of Georgia whenever re-
ductions are made elsewhere in the United States,
so that at no time shall any book so filed and listed
be sold to school authorities in Georgia at a higher
net price than is received for such book elsewhere
in the United States; and that upon failure or refusal
of publisher to make such reduction all contracts
for such book or books shall become null and void.
Third, that all such books offered for sale, adop-
tion or exchange in the State of Georgia shall be
•equal in quality to those filed in the office of the
State Superintendent of Schools, as regards paper,
binding, print, illustration, subject matter, and all
other particulars that may affect the value of such
schools books. Fourth, that the publisher shall
not enter into any understanding, agreement, or
combination to control the prices or restrict com-
petition of the sale of school books in the State of
Georgia. Acts 1919, pp. 288, 306.
A provision of the Acts of 1916. p. 106 is similar to this
section.
§ 1551(49). Approval of bond and a new bond
after five years. — Such bond shall be approved by
the Attorney-General, and shall continue in force
for a period of five years after its filing, at or before
the expiration of which period a new bond shall be
given, or the right to continue selling such text-
books in the State of Georgia shall be forfeited.
Acts 1919, pp. 288, 307.
A provision of the Acts of 1916, p. 106 was similar to
this section.
§ 1551(50). State Superintendent to send out list
of books. — The State Superintendent of Schools
shall, within thirty days after the filing of such
text-books and bond for same, send out a list of
such books to the Superintendent of Schools, and
the Chairman of the Board of Education of each
county, city, local school system, separate school
district, and district agricultural school in the
State, and the State Superintendent of Schools
shall, on or before January, l, 1917, and on or by
the first day of January of each following year,
publish and send to the Superintendent of Schools
and the Chairman of the Board of Education of
each county, city, local school s}rstem, separate
school district and district agricultural school, a
printed copy of all such lists then in force in his
office. Acts 1919, pp. 288, 307.
A provision of the Acts of 1916, p. 107 was similar to
this section.
§ 1551(51). Forfeiture by publisher on failure
of duty. — If any publisher shall comply with the
foregoing Sections and then fail or refuse to fur-
nish such books to the Board of Education of any
county, city, local school system, separate school
district, or district agricultural school, upon the
terms herein provided, said school authority shall
at once notify the State Superintendent of Schools
of such failure or refusal, and he shall at once
cause an investigation of such charge to be made.
If the State Superintendent of Schools finds such
charge to be true, he shall at once notify such pub-
lisher and notify the Superintendent of Schools
and the Chairman of the Board of Education of each
county, city, local school system, separate school
district and district agricultural school in the State
of Georgia that such books shall not thereafter be
adopted or purchased by any of the public school
authorities in the State. Said publishers shall for-
feit and pay to the State of Georgia the sum of one
hundred ($100.00) dollars for each failure of re-
fusal to furnish said book or books, to be recovered
in the name of the State of Georgia in an action to
be brought by the Attorney-General in any
proper court, the amount when collected to be
paid into the Treasury to the credit of the com-
mon school fund of the State of Georgia. Acts
1919, pp. 288, 307.
A provision of the Acts of 1916, p. 107 was similar to this
section.
§ 1551(52). Local board's duty as to selecting
books. — The Board of Education of each county,
local school system, separate school district, and
district agricultural school in the State of Georgia,
at a regular meeting to be held between the first
Monday in January and the first Monday in
August of each year, shall adopt text-books for
use in the schools under its control until a com-
[ 307 ]
§ 1551(53)
FURNISHING BOOKS AND SUPPLIES
§ 1551(57)
plete list of text-books covering the entire course
of study has been adopted. A majority vote of the
membership of any board shall determine which of
said books have been selected and adopted by said ] thls section
buying books and renting them to the pupils in the
schools under its control. Acts 191.9, pp. 288, 308.
A provision of the Acts of 1916, p. 108 was similar to
Board of Education, no book shall be changed, nor
any book substituted therefor, for a period of five
years after the date of its adoption, as shown by the
official records of the board, provided that any
such school text-books as may be in use in the
public schools of Georgia when this Section goes
into effect may be continued at the pleasure of the
authorities in charge of such schools, but that
when said books are changed or other books sub-
stituted, the books adopted shall be used for a full
period of five years. This Section shall not affect
any existing contracts for text-books now in force
in this State. Acts 1919, pp. 288, 308.
A provision of the Acts of 1916, p. 108 was similar to
this section.
§ 1551(53). Purchases and payment for books
ordered, free books and rental. — All text-books
adopted as provided for in this Section shall be
bought by the various school authorities direct
from the publishers at the price listed with the
State Superintendent of Schools. That the Board
of Education of each county, city, local school sys-
tem, separate school district, and district agricul-
tural school, shall, at a regular meeting cause to be
ascertained the number of each of such books
adopted as the schools under its charge require.
The secretary of each Board of Education shall
order the books so agreed upon direct from the
publishers, who, on receipt of such order, shall
ship the books as directed without delay. It shall
be the duty of the secretary, or other person named
by the board for such purpose, to examine the
books when received, and if found to be correct
and in accordance with order, a warrant, payable
out of the school fund, or any fund the board may
have on hand, for the proper amount, shall be is-
sued and remitted to the publisher within thirty
days. Each Board of Education shall pay all
charges for transportation of the books. It shall be
the duty of each Board of Education to make all
necessary provisions and arrangements to place
the books so purchased within easy reach and
accessible to all the pupils in the school under its
control. For this purpose each Board of Educa-
tion may make contracts, and take such security
as it deems necessary, for the custody, care and
sale of such books, and accounting for the pro-
ceeds. The proceeds from the sale or rental of
said books shall be paid into the public school
fund of the board. The Board of Education may
also contract with the local or retail dealers to sell
the books to the pupils and patrons of the schools,
at prices to be specified by the said board, each
board being responsible to the publishers for all
books purchased by it. All orders for books un-
der this Section shall be made by a duly authorized
agent of the Board of Education and billed by the
publisher to the Board of Education. That noth-
ing in this Section shall prevent the Board of
Education of any county, city, local school system,
separate school district, or district agricultural
school, from furnishing free text-books to the
pupils in the schools under its control, or from
§ 1551(54). Retail prices of books limited. — No
retail dealer selling said school text-books as the
agent of £ny school shall sell the same at a greater
price than the price agreed upon between such
dealers and said school authorities; provided, that
in no case shall books be sold to the school chil-
dren at a price to exceed fifteen per cent (15 per
cent) advance on the wholesale price of such
books. Acts 1919, pp. 288, 309.
A provision of the Acts of 1916, p. 109 was similar to
this section.
§ 1551(55). Second-hand books, when pur-
chased.— -When pupils remove from any county,
city, local school system, separate school district,,
or district agricultural school, and have text-books
of the kind adopted in said school, and not for the
kind used in the school to which they remove, and
wish to dispose of them, the Board of Education
of the school from which they remove, if re-
quested, shall purchase such books at a fair value
thereof, and resell to other pupils. Acts 1919, pp.
288, 310.
A provision of the Acts of 1916. p. 109 was similar to
this section.
§ 1551(56). Payment for vote or influence for-
bidden.— No publisher of school text-books, nor
agents of such publisher, shall offer or give any
emolument, money, or other valuable thing, or
any inducement, to any member or any Board -of
Education or school official connected with any of
the public schools of Georgia, for his vote, or for
the use of his influence for the adoption of any
school text-book to be used in any of the public
schools of this State, nor shall any member of any
Board of Education or school official connected
with any of the public schools of Georgia, accept
any emolument, money, or other valuable thing, or
any other inducement, from any publisher, or
agent of any publisher, for his vote or promise to
vote, or for the use of his influence for the adop-
tion of any school text-books, provided, that noth-
ing in this Section shall be construed to prevent
any person, publisher, or publisher's agent from
sending a reasonable number of sample copies of
school text-books to any member of a local Board
of Education or school official for examination of
such book or books before the adoption of books,
as provided for in this Section, and nothing shall
be construed to prevent such member of a Board
of Education or school official from receiving such
sample copies. Acts 1919, pp. 288, 310.
A provision of the Acts of 1916, p. 110 was similar to
this section.
§ 1551(57). Penalty for violation. — Any Pub-
lisher of school text-books, or agent of such pub-
lisher, or any' member of any Board of Education
or public official in the State of Georgia, who vio-
lates any of the provisions of this Section [Article],
on conviction thereof shall be punished as for a
misdemeanor; and any member of a Board of
Education or public school official shall, in
addition, be removed from his official position.
Anv retail dealer of school text-books acting as
[ 308
§ 1551(58) STATE SCHOOL SUPERINTENDENT; POWERS AND DUTIES § 1551(65)
agent for any Board of Education who violates
any of the provisions of this Section shall, upon
•conviction, be punished as for a misdemeanor.
Acts 1919, pp. 288, 310.
As to provision in penal code concerning this section,
see P. C, § 698 (2).
A provision of the Acts of 1916, p. 110 was similar to
this section.
§ 1551(58). Non-repeal of certain laws. — This
Section shall not he construed to repeal directly or
indirectly the present law as to adoption of basal
elementary books by the State Board of Education
for the Public Schools of Georgia. Acts L919, pp.
288, 311.
A provision of the Acts of 1916, p. 110 was similar to
this section.
ARTICLE 4.
State School Superintendent, His Powers
And Duties.
§ 1551(59). How elected, powers and duties in
general. — The State School Superintendent shall
be elected by the people at the sanie time and in
the same manner as the Governor and State-house
officers are elected. A suitable office shall be fur-
nished him at the seat of government. lie shall be
charged with the administration of the school laws,
and general superintendence of the business relat-
ing to the common schools of the State. He shall
prescribe suitable forms for the reports required of
subordinate school officers and blanks for their
guidance in transacting their official business, and
shall from time to time prepare and transmit to them
such instructions as he may deem necessary for
the faithful and efficient execution of the school
laws; and by what is thus communicated to them
they shall be bound to govern themselves in the
discharge of their official duty; provided, there
shall always be an appeal from the State School
Superintendent to the State Board of Education.
Acts 1919, pp. 288, 311.
As to state hoard as an advisory body, see § 1551 (14).
This section is similar to § 1466 of the Code of 1910.
§ 1515(60). Qualifications of superintendent. —
To render a person eligible to hold the office of
State Superintendent of Schools he shall be a man
of good moral character, of high educational stand-
ing, have had at least three years' practical ex-
perience as a teacher, or in lieu thereof shall have
a diploma from a reputable college or normal
school, or shall have had five years' experience in
the actual supervision of schools, and be at least
thirty years of age. Acts 1919. pp. 288, 311.
A provision of the Acts of 1911. pp. 94. 96 was similar
to this section.
§ 1551(61). Bond and oath of superintendent. —
Upon entering upon the discharge of his official
duties, the State Superintendent of Schools shall
give bond in the penal sum of ten thousand
($10,000.00) dollars to the State of Georgia, with
some approved surety company which shall be
acceptable to the Secretary of State, conditioned
that he will truly account for and apply all money
or other property which may come into his hands
in his official capacity for the use and benefit of the
purposes for which it is intended, and that he will
faithfully perform the duties enjoined upon him by
law. He shall take and subscribe an oath to
diligently and faithfully discharge the duties of his
office. The bond with certified endorsement there-
on, shall be filed with the Secretary of State, the
premium charged for said bond shall be paid out
of the Treasury of the State. Acts 1919, pp. 288,
312.
A provision of the Acts of 1911, pp. 94, 98.
§ 1551(62). Secretary and agent of board of
education; member of other boards. — The State
Superintendent of Schools shall be the Secretary
and Executive Agent of the State Board of lulu-
cation, for which services he shall receive two
thousand five hundred ($2,500.00) dollars annually.
He is also member of the State Board of Voca-
tional Education, and is a member of the State
Geological Board, State Board of Health and of
the Budget and Investigation Committee by Acts
of 1894, 1903 and 1917. He shall also be an ex-
officio member of the Board of Trustees of each
eleemosynary, corrective or educational institution
to which public funds are appropriated. Acts 1919,
pp. 288, 312.
As to personnel of state hoard, see § 1551 (10).
A provision of the Acts of 1911, pp. 94, 98 was similar
to this section.
§ 1551(63). Additional duties; suspension of
county superintendents. — The State Superin-
tendent of Schools shall carry out and enforce all
the rules and regulations of the State Board of
Education and the laws governing the schools of
the State receiving State aid; he shall from time
to time make such recommendations to the State
Board as may effect the welfare and efficiency of
the public schools throughout the State; he shall
have authority to suspend a county superintendent
of schools for incompetency, willful neglect of
duty, misconduct, immorality or the commission
of crime involving moral turpitude; providing of
course, that all of his acts in this matter shall be
subject to the approval of the State Board of
Education and the party so suspended may appeal
his case to the State Board, whose decision shall
be final. Acts 1919, pp. 288, 312.
As to powers and duties of state board, see § 1551 (12).
A provision of the Acts of 1911. pp. 94, 99.
§ 1551(64). To visit the several counties. — It
shall be the duty of the State School Superintend-
ent to visit, as often as possible, the several coun-
ties of the State for the purpose of examining into
the administration of the school law, counseling
with school officers, delivering popular addresses,
inspecting school operations, and of doing such
other acts as he may deem to the interest of popu-
lar education. Acts 1919, pp. 288, 313.
This section is similar to § 1467 of the Code of 1910.
§ 1551(65). Misapplication of school funds. —
It shall be the duty of the State Superintendent of
Schools, in addition to the powers already granted,
that in the event of a misapplication of any of the
funds apportioned to any of the institutions of
learning or schools receiving State aid he shall at
once proceed to recover the same by the institu-
tion of proper procedure in the courts of com-
petent jurisdiction after demand is made upon the
party misapplying the funds to settle same. Should
it become necessary to procure additional legal
[ 309 ]
§ 1551(66) STATE SCHOOL SUPERINTENDEiNT; POWERS AND DUTIES § 1551(70^)
services other than that of the Attorney-General,
the Governor is authorized to procure special or
local counsel and arrange to pay for the recovery
of said funds, such fee out of the funds collected
as is usual and customary in the locality where the
suit is instituted. Acts 1919, pp. 288, 313.
A provision of the Acts of 1911, pp. 94, 100 was similar
to this section.
As to penalty for violation, see P. C, § 698 (2).
§ 1551(66). Annual Reports.— The State School
Superintendent shall make an annual report to the
General Assembly, in which he shall present a
statement of the condition and amount of all funds
and property appropriated to the purpose of pub-
lic education; a statement of the number of com-
mon public schools of the various grades in the
State; the number of scholars attending such
schools, their sex, color, and the branches taught;
a statement of the average cost per scholar of in-
struction under the common school system in each
county; a statement of the plans for the manage-
ment, extension and improvement of the common
schools; a statement of the number of children of
school age in the State, with as much accuracy as
the same can be ascertained; also, a statement of
the number of private schools and colleges of the
different kinds in the State; the number of pupils
in such schools or colleges; their sex, the branches
taught, the average cost of tuition per scholar in
said schools and colleges. Acts 1919, pp. 288, 313.
This section is similar to § 1473 of the Code of 1910.
§ 1551(67). To prepare text on civics. — The
State Superintendent of Schools is required to pre-
pare with necessary assistance, a text-book on
Civil Government and have it printed and sold to
the schools at cost. Acts 1919, pp. 288, 314.
A provision of the Acts of 1918, p. 919 was similar to
this section.
§ 1551(68). Disbursement of school funds. — It
shall be the duty of the State School Superintend-
ent to disburse the common school fund in the
following manner: He shall, annually, apportion
equitably, the State school revenue to the different
counties, and independent local systems of the
State, upon the basis of the aggregate of children
between six and eighteen years of age inclusive in
each county. Acts 1919, pp. 288, 314.
This section is similar to § 1468 of the Code of 1910.
§ 1551(69). State school Supervisors. — The State
Superintendent of Schools shall have the power,
with the consent and approval of the State Board
of Education to appoint three State School Super-
visors, whose professional qualifications shall he
the same as State Superintendents, who shall act
under the direction of the State Superintendent of
Schools and fill the place of the experts provided
for in the Acts of 1891, which were amended in
1892 and 1893. The salaries paid these Super-
visors shall be fixed by the State Board of Educa-
tion and shall not exceed three thousand dollars
each per annum, together with necessary traveling
expenses; provided, the same shall not exceed
three thousand ($3,000.00) dollars. The Super-
visors shall keep itemized statements of their ex-
penses, which shall be sworn to monthly and ap-
proved by the State Superintendent of Schools and
be paid out of the State Treasury, It shall be
[3
especially the duty of these Supervisors to act as
instructors of institutes to give State normal in-
struction and training as the State Superintendent
may direct in each county; to grade the papers of
applicants for professional certificates or State
licenses and to aid generally in supervising, system-
atizing and improving the schools of the State un-
der the direction of the State Superintendent of
Schools. Acts 1919, pp. 288, 314.
As to qualifications, see § 1551 (60). As to duty to in-
struct at county institutes, see § 1551 (79).
A provision of the Acts of 1911, pp. 94, 99 was similar to
this section.
155-1(69^2). High school supervisor. — The
State Board of Education is hereby directed to
elect from a nomination by the State Superintend-
ent of Schools a High School Supervisor who can
meet the same qualifications prescribed for the
State Superintendent of Schools. It shall be the
duty of the State High School Supervisor to in-
spect the various high schools of the State with a
view to their proper classification and supervision
under the State Board of Education and in accord-
ance with standards set up by said Board. The
State High School Supervisor shall serve as assist-
ant to the State Superintendent of Schools in this
and in other capacities as directed by the State
Board of Education in making effective the school
laws of the State and the regulations of said Board.
The term of office of said High School supervisor
shall be fixed by the State Board of Education;
that, the salary shall be fixed by the said Board not
to exceed four thousand dollars and necessary
traveling expenses, which shall be paid out of the
public school fund or other funds which said
Board may have on hand at its disposal for the
purposes specified in this Act. Acts 1925, p. 206.
§ 1551(70). Auditor. — The State Superintend-
ent of Schools, with the advice and approval of the
State Board of Education, shall appoint one per-
son who shall be a competent and experienced
bookkeeper and accountant at a salary of not more
than three thousand dollars per annum, together
with his actual traveling expenses, whose duty it
shall be to thoroughly audit and check the book
accounts of the County Superintendents and
Treasurers of local school systems, of municipal
systems, of the State University and all its
branches, including the District Agricultural
Schools, the State College of Agriculture, Tech-
nological Schools and all other schools receiving
State aid and making regular and annual reports
to the State School Superintendent, showing the
amount received, for what purpose received, and
for what purposes expended. All such funds held
by officials must be kept in banks separate from
their individual bank accounts. He shall be al-
lowed his traveling expenses from itemized state-
ments sworn to, as the Supervisors are allowed
theirs in the Section 1551(69), provided the total
expenses shall not be be more than $1,000 per
annum. Acts 1919, pp. 288, 315.
A provision to the acts of 1911, pp. 94, 100 was similar to
this section.
§ 1551(70^). Assistant auditor. — The State
Superintendent of Schools, with the consent and
approval of the State Board of Education, is and
shall be authorized to provide an assistant to the
10]
§ 1551(71) STATE SCHOOL SUPERINTENDENT; POWERS AND DUTIES § 1551(73)
State school Auditor in order to more fully audit
accounts of all persons handling public school
funds; and the State Board of Education shall be
authorized to pay such assistant a salary not to
exceed Two Thousand Dollars per annum, to-
gether with necessary traveling expenses not to
exceed those authorized for the State School
Auditor.
The School Audit shall audit only the Grammar
and High Schools of the State.
The State Auditor shall audit the University of
Georgia and all its branches and all Educational
Institutions which receive an Appropriation from
the State Treasury.
The School Auditor shall audit all schools sup-
ported out of appropriations for common and high
schools. Acts 1925, p. 257.
Supersedes this section in part.
§ 1551(71). Salary; clerk and assistants. — The
State School Superintendent shall be entitled to re-
ceive for his services the sum of two thousand
dollars annually, in quarterly installments. All his
necessary traveling expenses incurred in the per-
formance of his official duties, and all postage and
other expenses absolutely necessary arising in his
office, shall be paid by the State. He shall also be
entitled to employ one clerk and secretary and such
other assistants as may be necessary in the judg-
ment of the State Board of Education, to aid him
in his official duties. His clerk shall receive an
annual salary not exceeding two thousand dollars,
to be paid quarterly. The secretary shall receive
an annual salary of eighteen hundred dollars. The
salaries and other expenses named in this Section
shall be paid out of the State School fund on ex-
ecutive warrant. It shall also be the duty of said
Superintendent to keep an itemized account of all
expenses connected with his department which ac-
counts shall be audited by the State Board of Edu-
cation. Acts 1919, pp. 288, 315.
As to right of state board to fix office force, see § 1551 (12).
This section is similar to § 1476 of the Code of 1910.
§ 1551(72). School year coincident with calendar
year; annual statement. — Beginning with January
1, 1895, and continuing thereafter, the school year
shall be coincident with the calendar year, to-wit:
From January 1 to December 31, thereafter, and
the State School Superintendent shall, on or be-
fore the first Tuesdajr in December each year
beginning in 1894, or as soon thereafter as practi-
cable, make an estimate of the entire common
school fund for the State for the next succeeding
school year, and shall at once communicate in
writing to the County School Superintendent of
each county the amount of money that will be
payable to his county; and on the first Tuesday in
January in each year, or as soon thereafter as
practicable, each County Board of Education shall
meet and make the necessary arrangements for
placing the schools in operation for the next school
year, and shall have full authority in their dis-
cretion either to fix salaries for the payment of
teachers, or to pay them according to the enroll-
ment or attendance; provided, that nothing in this
Article shall be construed to affect the right of the
respective counties of the State to select the time
of operating their schools, which shall be left en-
tirely to the County Boards of Education, nor
shall it affect or change the time of operating their
schools under any special or local laws in any
county in this State; provided, further, it shall not
affect the monthly payment of teachers as by this
Article directed. Acts 1919, pp. 288, 316.
As to statement of county superintendent, see § 1551 (101).
As to failure to arrange for schools as forfeiting fund, see
§ 1551 (121).
This section is similar to § 1549 of the Code of 1910.
Effect on Contracts of Disregarding Section. — The fact
that a county board of education has adopted- a school year
in disregard of this section, will not have the effect of
rendering contracts null and void. McKenzie v. Board,
158 Ga. 892. 124 S. E. 721.
Method of Paying Salaries. — The board may fix the sal-
aries of all the teachers; they may pay the teachers ac-
cording to attendance or they may pay them according
to enrollment. Webb v. Jackson, 141 Ga. 55. In the
apportionment of the fund the board may combine one or
more of the methods pointed out, provided that the fund
is fairly and reasonably apportioned. Board v. Freeman.
148 Ga. 243, 96 S. E. 324.
§ 1551(73). Where there are local school laws. —
In those counties having local school laws where
the schools are sustained by local taxation for a
period of five months or more, the State School
Superintendent shall, on the first day of each month,
or as soon thereafter as practicable, notify the Gov-
ernor of the amount of funds standing to the credit
of each of such counties on the books of the Treas-
urer on said dates, arising from the monthly ap-
portionment aforesaid, and thereupon the Gov-
ernor shall issue his warrants for said sums and the
Treasurer shall draw his checks for said sums
without requiring the itemized Statements as pro-
vided; and the State School Superintendent shall
immediately transmit said checks to the officers
under the local school system authorized to re-
ceive its funds, and the State School Superintend-
ent shall in like manner pay over to the proper
officer under the school board of any town or city
having a school system sustained by local taxation
for a period of five months or more, and to which
he is now authorized by law to make direct ap-
portionments, such proportion of the entire county
fund as shown on the books of the Treasurer as
the school population of the town or city bears to
the population of the county, as shown by the last
school census; provided, that all children of school
age resident in said county, and attending the pub-
lic schools of such town or city, shall be counted
in the school population of such town or city and
be entitled to have their share of such county fund
paid over to the proper officer of the school board
of such town or city. Acts 1919, pp. 288, 316.
This section is similar to § 1551 of the Code of 1910.
Divisions According to School Popidation. — This section
declares that the division is to be made according to school
population, not according to the number actually attend-
ing the schools. Clark v. Cline, 123 Ga. 856, 51 S. E- 617.
What Population Includes. — The school population in-
cludes all children between the ages of six and eighteen
years. Clark v. Cline, 123 Ga. 856, 51 S. E. 617.
Same — Children of County to Be Counted. — Children of
school age resident in the county attending the public
schools of such town or city are to be counted in the
school population of such town or city, and are entitled
to have their share of such county fund paid over to the
proper officer of the municipal board. Clark v. Cline, 123
Ga. 856, 51 S. E. 617.
Fund Paid Direct. — The portion of the State school fund
which is devoted to the maintenance of the public-school
system in the city of Rome is not the property of the
county of Floyd, and the county school commissioner of
that county has no authority, in his official capacity.
[311]
§ 1551(74) STATE SCHOOL SUPERINTENDENT; POWERS AND DUTIES § 1551(79)
either to receive or to disburse it. Bridges v. State, 103
Ga. 21, 22, 29 S. E. 859.
§ 1551(74). Twenty schools days a scholastic
month. — Twenty school days shall constitute and
be treated as a scholastic month in the public
schools. Acts 1919, pp. 288, 317.
This section is similar to § 1550 of the Code of 1910.
§ 1551(75). Unused school fund. — In all cases
where any of the counties have heretofore or may
hereafter leave unused in the State Treasury any
part of the public school fund to which they are
entitled under the law, such fund shall be kept
separate and applied to the use and benefit of the
respective counties entitled to it and may be used
by the respective boards of education of the coun-
ties entitled to it for school purposes in their re-
spective counties, and may be drawn on for such
purposes as provided by law; provided, that in
every instance where a new county has been or
hereafter may be created out of the territory of any
one or more of the counties organized prior to
December 1, 1908, and such old counties shall, on
August 18, 1906, have on hand, either in the Treas-
ury of this State or elsewhere, any fund subject to
the provisions of this Section, then such fund shall
be equitably apportioned between such new county
and the old counties whose territory went to the
formation of the new county, the basis of the ap-
portionment between the new county and the old
counties affected to be the school population of
said counties as the same may appear from the re-
cords in the office of the State School Superintend-
ent, or as may be agreed upon by the authorities of
the counties affected. Acts 1919, pp. 288, 317.
As to distribution of school fund, see § 1551 (13).
This section is similar to § 1470 of the Code of 1910.
§ 1551(76). Enumeration of school children. —
It shall be the duty of the county and city Boards
of Education to cause an enumeration of the
children between six and eighteen years of age in-
clusive to be made under instructions from the
State School Superintendent, in the year 1888, and
every five years thereafter, as hereinafter pre-
scribed. Acts 1919, pp. 288. 318.
This section is similar to § 1520 of the Code of 1910.
§ 1551(77). How enumeration is to be taken.—
The different county or city Boards shall employ
one or more competent, reliable persons to take
the enumeration in their respective jurisdictions,
and the persons so employed shall go from house
to house, making a thorough canvass of the terri-
tory assigned them, taking the number of children
between the ages of six and eighteen years in-
clusive and distinguishing between the sexes and
races. The persons thus employed shall be known
as enumerators of the school census, and shall take
and report any additional statistics required by the
State School Superintendent. They shall receive
as compensation a per diem not to exceed four
dollars, to be paid out of the school fund of the
jurisdiction in which the work is done. They
shall, moreover, be required to make oath that the
work done by them has been carefully and faith-
fully done according to the true intent and mean-
ing of this Article, the form of oath to be pre-
scribed by the State School Superintendent. Noth-
ing herein contained shall be construed to prevent
the County Boards from employing the County
T3
School Superintendent to do the work contem-
plated in this Article. Acts 1919, pp. 288, 318.
This section is similar to § 1521 of the Code of 1910.
§ 1551(78). New Enumeration. — The State
Board of Education is hereby empowered to order
at once a new enumeration when they are in doubt
as to the accuracy of the return made from any
county or city; but the enumerators first making
their return shall receive no compensation in case
it is found their enumeration was not correct. In
case their enumeration is verified by the second
enumeration, both shall be paid, but the amount
paid them shall be deducted from the school fund
appropriated to this special territory. Acts 1919,
pp. 288, 319.
This section is similar to § 1522 of the Code of 1910.
§ 1551(79). County Institutes. — He shall
organize and establish in each county in Georgia a
Teachers' County Institute for the assembling
and instruction of the common school teachers of
each county in the State, said institute to hold an
annual session of one week's duration, in each
county in Georgia in the period of June, July and
August, or in such (other) months as the State
School Superintendent may deem best and ex-
pedient; provided, however, that the State School
Superintendent may, in his discretion, combine the
annual session of such institutes, or any number of
them, so that the same may be held in any county
named by him; to prepare a program of exercises,
with a syllabus of each subject in each program,
for each day's session of said institute, to require
County School Superintendents to operate at their
regular per diem, said institute session under such
general rules and regulations as he may deem best;
to require all persons, teaching in Georgia, or hav-
ing licenses entitling them to teach in the State, to
attend all sessions of said institutes held in the
county of their residence, and perform all duties
required of them as members of said institutes,
unless providential!}' prevented, to secure prompt
attendance of the teachers upon said institutes by
causing the County School Superintendents and
County Boards of Education to collect such fines
from absentees as may be deemed just and reason-
able by said Superintendents and Boards; provided,
that no teacher shall be fined till he has stated the
cause of his absence, in writing, to said Superin-
tendents and Boards, and they have duly considered
the same, and all money thus collected shall be
used in purchasing teachers' libraries for the coun-
ties in which said fines may be collected; to pro-
vide separate institutes for the white and colored;
to cause all sessions of said institutes to be held at
county seats, or such other places as may be
selected by the County School Superintendents,
and allow all persons so desiring to attend the
sessions of said institutes; provided, that all visi-
tors shall be subject to the rules and regulations of
said institutes while attending the exercises of the
same, and to prescribe from time to time such
other rules and regulations as he and the County
'School Superintendents may deem best for success-
fully operating said institutes. Acts 1919, pp. 288,
319."
As to provision for normal instruction, see § 1551 (13).
As to supervisors acting as instructors, see § 1551 (69).
This section is similar to § 1474 of the Code of 1910.
12]
§ 1551(80)
COUNTY BOARDS OF EDUCATION
§ 1551(85)
§ 1551(80). Reports from county superintend-
ents. — He shall have the right to require the
County School Superintendents to make such re-
ports as he may prescribe and in default of com-
plying, as far as may be practicable, with this re-
quirement, the County School Superintendents
shall not be entitled to compensation for their
official services. He shall also have the right to
make the requirement mentioned in Section 1434-
(13) of the president of the Board of Education or
the chief executive officer of any public school
organization in this State, operating under any
special law, and until the requirement is complied
with, said organization shall not receive the pro
rata of the State school fund to which it would be
otherwise entitled. Acts 1919, pp. 288, 320.
This section is similar to § 1475 of the Code of 1910.
ARTICLE 5.
County Boards of Education.
§ 1551(81). School districts. — Each and every
county in the State shall compose one school dis-
trict, and shall be confided to the control and
management of a County Board of Education.
Acts 1919, pp. 288, 320.
Editor's Note. — This and the following section relating to
Ccunty Boards of- Education, with the exception of the new
sections passed since the Code of 1910, are in substance
identical with §§ 1478 et seq. of the Code of 1910 and there-
fore supersede such sections by the expressed provision of
the act from which these sections are taken. This seems
to be true notwithstanding that §§ 1478 et seq., were cited
and construed by the court in Board v. Hunt, 29 Ga. App.
665, 116 S. E. 900. Therefore, §§ 1478 et seq. are omitted
from this Code for the reasons stated in the editor's note
under § 1432.
As to county boards of education, see § 1551 (83).
Liability of Board or District to Be Sued. — The county
board of education as created under this Code of school law
is not a body corporate with authority to sue and be sued
in the ordinary sense. Even if such board could be sued
a judgment against it would be of no practical benefit as it
would subject nothing to levy and sale. Mattox v. Board,
148 Ga. 577, 580, 97 S. E. 532; Smith v. Board, 153 Ga. 758,-
1!3 S. E. 14. , Ferguson v. Smith, 27 Ga. App. 806, 110 S.
E. 42; Board v. Hunt, 29 Ga. App. 665, 116 S. E- 900.
This ruling does not conflict .with Board v. Bacon, 22 Ga.
App. 72, 95 S. E. 753, because in that case the suit was
against the board of a town, which may be sued. But in
these cases the county board is acting for the county and
a county can not be sued unless there is a law which ex-
pressly or by necessary implication gives such power. Board
v. Hunt, 29 Ga. App. 665, 116 S. E. 900.
Judge Luke in his dissenting opinion, said that the state-
ment in Mattox v. Board, 148 Ga. 577, 97 S. E. 532, that a
county board is not a corporate body with authority to sue
and be sued in the ordinary sense, is not binding authority
for the proposition that a county board of education can
never be sued. Board v. Hunt, 29 Ga. App. 665, 669, 116 S.
E. 900.
But a school district is such a body corporate that it
may be sued where it has incurred a liability under the
law such, as upon a district contract, bond issues, build-
ing contracts, etc. Ty Ty Consol. Dist. v. Colquitt Lum-
ber Co., 153 Ga. 426, 112 S. E. 561.
§ 1551(82). Membership in county boards. — The
grand jury of each county (except those counties
which are under a local system) in this State shall,
from time to time, select from the citizens of their
respective counties five free holders, who shall
constitute the County Board of Education. Said
members shall be elected for the term of four
years, and shall hold their offices until their suc-
cessors are elected and qualified; provided, how-
ever, that no publisher of school books, nor any
agent for such publisher, nor any person who shall
[31
be pecuniarily interested in the sale of school
books, shall be eligible for election as members of
any Board of Education or as County School
Superintendent; provided, further, that whenever
there is in a portion of any county a local school
system having a Board of Education of its own.
and receiving its pro rata of the public school fund
directly from the State School Superintendent, and
having no dealings whatever with the County
Board of Education, then the members of the
County Board of Education of such county shall
be selected from that portion of the county not
embraced within the territory covered by such
local system. Acts 1919. pp. 288, 320.
As to boards of education in new counties, see § 847.
This section is similar to § 1479 of the Code of 1910.
§ 1551(83). Qualifications of members. — The
County Board of Education shall consist of five
(5) members as now provided by law and selected
by the grand jury as now provided by law, except
that the grand jury in selecting such members
shall not select one of their own number then in
session, nor shall they select any two of those
selected from the same militia district or locality,
nor shall they select any person who resides with-
in the limits of a local school system operated in-
dependent of the County Board of Education, but
shall apportion members of the Board as far as
practicable over the county; they shall select men
of good moral character, who shall have at least a
fair knowledge of the elementary branches of an
English education and be favorable to the common
school system. Whenever a member of the Board
of Education moves his residence into a militia
district where another member of the Board re-
sides, or into a district or municipality that has an
independent local school system, the member
changing his residence shall immediately cease to
be on the board and the vacancy shall be filled as
required by law. Acts 1919, pp. 288, 321.
A provision of the Acts of 1911, pp. 94, 103 was similar
to this section.
Section Mandatory. — The provision in this section is
mandatory, and the election of a member of the county
board of education in violation of this provision creates
no title to the office in the person thus selected; and quo
warranto proceedings will lie for the purpose of declar-
ing such office vacant. Clarke v. Long, 152 Ga. 619, 111
S. E. 31.
§ 1551(84). Compensation of members.— Thaft
the members of the Board of Education in each
county shall be paid a per diem not to exceed two
dollars for each day's actual service out of the
school fund appropriated to the county; and their
accounts for service shall be submitted for ap-
proval to the Ordinary or County School Superin-
tendent; and they shall not receive any other com-
pensation, such as exemption from road duty and
jury duty. Acts 1919, pp. 288, 321.
This section is similar to § 1480 of the Code of 1910.
§ 1551(85). Certificate of election and removal.
— Whenever members of a County Board are
elected or appointed it shall be the duty of the
clerk of the Superior Court to forward to the State
.School Superintendent a certified statement ot
the facts, under the seal of the court, as evidence
upon which to issue commissions. This statement
must give the names of the members of the board
chosen and state whom they succeed, whether the
3]
§ 1551(86)
COUNTY BOARDS OF EDUCATION
§ 1551(90)
offices were vacated by resignation, death or other-
wise. The evidence of the election of a County
Superintendent shall be the certified statement of
the Secretary of the meeting of the board at which
the election was held. Any member of a County
Board of Education shall be removable by the
Judge of the Superior Court of the county, on the
address of two-thirds of the grand jury, for in-
efficiency, incapacity, general neglect of duty, or
malfeasance or corruption in office after oppor-
tunity to answer charges; the judges of ithe
Superior Courts in the State shall have the power
to fill vacancies, by appointment, in the County
Board of Education for the counties composing
their respective judicial circuits, until the next ses-
sion of the grand juries in and for said counties,
when said vacancies shall be filled by said grand
juries. Acts 1919, pp. 288, 322.
This section is similar to § 1481 of the Code of 1910.
§ 1551(86). Resignation. — When any member of
a board, or a County Superintendent of Schools
resigns, his resignation shall be tendered in writ-
ing to the State School Superintendent. Acts 1919,
pp. 288, 322.
§ 1551(87). Officers of county boards. — The
Board of Education shall elect one of their number
president, who shall serve as such during the term
for which he was chosen a member of the Board.
The County School Superintendent shall be ex-
officio secretary of the Board. A majority of the
Board shall constitute a quorum for the transac-
tion of business, it shall be the duty of said secre-
tary to be present at the meetings of the Board,
and to record in a book, to be provided for the pur-
pose, all their official proceedings, which shall be a
public record upon the inspection of any person
interested therein, and all such proceedings, when
so recorded, shall be signed by the president and
countersigned by the secretary. Acts 1919, pp.
288, 322.
As to organization, powers and duties, see § 1551 (94).
This section is similar to § 1482 of the Code of 1910.
§ 1551(88). Sessions. — It shall be the duty of
the County Board of Education to hold regular
sessions on the first Tuesday of the month suc-
ceeding the election, and each month thereafter at
the court house of the county, for the transaction
of business pertaining to the public schools, with
power to adjourn from time to time; and in case of
the absence of the president or secretary, they may
appoint one of their own number to serve tem-
porarily. Acts 1919, pp. 288, 323.
This section is similar to § 1483 of the Code of 1910.
§ 1551(89). School terms; school property; sepa-
ration of races. — The County Boards of Education
shall have the power to define and regulate the
length of the public school terms of their respec-
tive counties, and power to purchase, lease, or rent
school sites; build, repair or rent school houses,
purchase maps, globes, and school furniture, and
make all arrangements necessary to the efficient
operation of the schools. The said boards are in-
vested with the title, care and custody of all school
houses or other property belonging to the sub-
districts now or hereafter defined, with power to
control the same in such manner as they think
will best serve the interests of the common
schools; and when, in the opinion of the board, any
school house site has become unnecessary or in-
convenient, they may sell the same in the name of
the County Board of Education; such conveyance
to be executed by the president or secretary of the
Board, according to the order of the Board. They
shall have the power to receive any gift, grant,
donation, or devise made for the use of the common
schools within their respective counties, and all
conveyances of real estate which may be made to
said Board shall vest the property in said Board of
Education and their successors in office. It shall
also be the duty of said Board of Education to
make arrangements for the instruction of the
children of the white and colored races in separate
schools. They shall, as far as practicable, provide
the same facilities for both races in respect to
attainments and abilities of teachers and for a
minimum six months length of term time; but the
children of the white and colored races shall not be
taught together in any common or public school of
this State. In respect to the building of school
houses, the said Board of Education may provide
for the same, either by labor on the part of the
citizens of the sub-districts, or by a tax on their
property. The construction of all public school
buildings must be approved by the Superintendent
and Board of Education and must be according to
the plans furnished by the county school authori-
ties and the State Department of Education. Acts
1919, pp. 288, 323.
Editor's Note.— The case of Orr v. Riley, 160 Ga. 480,
128 S. 15. 669, reversing Orr v. Riley, 33 Ga. 472, held that
the county board is empowered to employ teachers in the
school under their jurisdiction, and this duty is exclu-
sively vested in them. While the trustees of all local dis-
tricts may recommend desirable applicants and the trus-
tees in districts levying local tax may in addition thereto
fix the salaries of such teachers, they can not employ
teachers, and this is true notwithstanding that the county
board fails to act even though such trustees may be au-
thorized to make such employment by the county school
board.
In arriving at this conclusion the court construed this
section, §§ 1551 (94), 1551 (101), 1551 (178) and 1551 (94J4)
together and concluded that they require this result.
This section is similar to § 1483 of the Code of 1910.
School Sites. — Where the city of Blakely had issued and
sold bonds to a given amount for the purpose of erecting a
new school building, the board of education of that city
had authority to select the site for, and to construct the
building. Chipstead v. Oliver, 137 Ga. 483, 73 S. E- 576.
This authority, in the absence of anything to the contrary
in the charter of the city, carried with it, by necessary
implication, power in such board to possess, control, and
expend the fund so raised, in the performance of their
public duty in erecting the building. Blakely v. Single -
tary, 138 Ga. 632, 75 S. E. 1054.
Same — Equity Jurisdiction. — A court of equity will not
entertain jurisdiction of a controversy arising as to the
location of the site of a school building, but will remand
the parties to their legal remedy. Edge v. Garrett, 138
Ga. 93, 74 S. E- 758; Meadows v. Board, 136 Ga. 153, 71
S. E. 146.
§ 1551(90). Powers of county boards as school
court. — The County Board of Education shall con-
stitute a tribunal for hearing and determining any
matter of local controversy in reference to the con-
struction or administration of the school law, with
power to summon witnesses and take testimony if
necessary; and when they have made a decision,
said decision shall be binding upon the parties.
Either of the parties shall have the right of appeal
to the State School Superintendent, and said ap-
peal shall be made through the County Superin-
tendent in writing and shall distinctly set forth the
[314]
§ 1551(91)
COUNTY BOARDS OF EDUCATION
§ 1551(95)
question in dispute, the decision of the County
Board and testimony as agreed upon by the parties
to the controversy, or if they fail to agree, upon the
testimony as reported by the Superintendent. Acts
1919, pp. 288, 324.
As to appeal to state board of education, see §§ 1551 (12),
1551 (14).
This section is similar to § 1485 of the Code of 1910.
Suspension of Teachers. — The suspension of a teacher is
a matter of "local controversy in reference to the con-
struction or administration of school law," within the mean-
ing of this section, and if not appealed, is binding on the
parties. Pierce v. Beck, 61 Ga. 413.
Suspension of Children. — A board of education having the
charge and control of a system of free schools, have the
power to suspend children whose parents interfere with the
discipline of the school. And this is true even though the
children so suspended have not violated school rules. Board
v. Purse, 101 Ga. 422, 28 S. E. 896.
Appeal from Decision of Board in Laying Off District. —
See notes to § 1551 (125).
Power to Select School Site. — The injunction against the
purchase of the school site by the board of trustees of a
district, which resulted in the selection of another site and
an appeal from that selection, had the legal effect of plac-
ing it within the power of the county board of education to
make the selection of a site for the district schoolhouse.
McCulley v. McFarland, 155 Ga. 700, 118 S. E. 52. See
notes to § 1551 (89).
§ 1551(91). Five year adoption of text-books. —
The Board of Education of each county and local
system shall adopt text-books between the first
Monday in January and the first Monday in Au-
gust of each year for a period of five years. School
texts in use may be continued at the pleasure of
the authorities, but when the books are changed
the text adopted shall be used for five years.
The Board may contract with a local dealer to
act as agent, but must, where satisfactory ar-
rangements cannot be made, arrange itself,
through the Superintendent or otherwise, to buy,
distribute, rent or furnish free the text-books
used. Acts 1919, pp. 288, 324.
§ 1551(92). Duties of as to supply of books
and public notice. — County Boards of Education
shall be required to have on hand a sufficient
supply of books for the various schools under
their charge and shall give public notice five days
prior to the opening of such school session that
such books are available, and the County Boards
of Education may designate some agent or agents
to handle such books for the various schools un-
der their jurisdiction. Acts 1923, Ex. Sess., pp. 18,
20.
§ 1551(93). Vaccination of pupils of public
schools. — The County Board of Education in the
counties of this State, and the Boards of Public
Education for the (city of Savannah and the
other) cities of this State are hereby authorized
and empowered to make such regulations as in
their judgment shall seem requisite to insure the
vaccination of the pupils in their respective
schools and may require all scholars or pupils to
"be vaccinated as a prerequisite to admission to
their respective schools. Acts 1919, pp. 288, 325.
As to compulsory vaccination, see § 1650.
This section is similar to § 1529 of the Code of 1910.
§ 1551(94). Organization; powers and duties.
— The County Board of Education shall have
and exercise all the powers that are now exer-
cised by the County Board of Education except
as may be herein changed; provided, that the
County School Superintendent and County
Board of Education shall make rules to govern
the county schools of their respective counties.
Upon being called together by some one of their
number, after their election, they shall organize
by selecting a chairman. The County Superin-
tendent shall act as secretary of the Board, and
keep the minutes of their meetings and make a
permanent record of the same and do any other
clerical work that they may direct him to do.
Said Board may suspend the County Superin-
tendent same as State Superintendent, and may
suspend teachers same as County Superintend-
ents. In each case they may appeal to State
Board. Acts 1919, pp. 288, 325.
Editor's Note. — The Supreme Court of Georgia, as ex-
plained in the editor's note under § 1432, has held that
this Code of school law (Act 1919, p. 288) is a substitution
for the existing school laws only where there is a conflict
between them. The first sentence of this section is re-
ferred to as conclusively adopting the part of the old law
herein referred to, regardless of whether or not such law
was included in the school Code of 1919.
There are very few, if any, such duties provided in the
old law which are not incorporated in the Act of 1919, and
thus set out in this Code. See editor's note under § 1551 (89).
In view of the holdings as shown in the note under §
1551 (81), it is probably true that a teacher could not
bring suit at law against a county board for salary; man-
damus is the proper remedy. Such suit could be brought
against a city board.
As to power of county board of education to employ
teachers, see § 1551 (94T/2) and note. As to state board,
see § 1551 (12). As to officers of county boards, see §
1551 (87).
A provision of the Acts of 1911, pp. 94, 103 was similar
to this section.
§ 1551(94^2). Powers of board to employ
teachers — contract must be in writing. — The
county boards are empowered to employ teach-
ers to serve in the schools under their jurisdic-
tion, and the contracts for said service shall be
in writing, signed in duplicate by the teacher on
his own behalf, and by the county school com-
missioners on behalf of the board. Code of
1895, § 1360.
Editor's Note. — This section was originally passed as
the Act of 1872, page 64, and was codified as part of §
1360 of the Code of 1895, being omitted from the Code
of 1910. The supreme court in Orr v. Riley, 160 Ga. 480,
held that neither the omission from the Code of 1910, nor
the omission from the Code of school law as passed in
1919 and herein set out as §§ 1551 (1) et seq., operated
to repeal this provision of law, there being nothing at va-
riance with it.
Inasmuch as the law of 1919 [§ 1551 (94) of this Code]
provides that the county board of education "shall have
and exercise all of the powers that are now exercised by
the county board of education except as herein may be
changed," and inasmuch as the act failed to provide for
the employment of teachers, the only reference to such
employment being that found in § 1770 (178), it is to be pre-
sumed that this section in conjunction with the other
laws in force at the time of the adoption of the Act of
1919 [§§ 1551 (1) et seq. of this Code] control as to such
employment. See the editor's note under §§ 1432-1551.
Contracts Must Be in Writing. — Contracts between
county boards of education and teachers in the schools
under their supervision must be in writing. Orr v. Ri-
ley, 160 Ga. 480, 128 S. E. 669.
Superintendent to Sign Contract. — "By § 1551 (164) the
office of county superintendent of education is substituted
for the office of county school commissioner, and he is au-
thorized to execute contracts with teachers on the part of
these boards." Orr v. Riley, 160 Ga. 480, 482, 128 S. E. 669.
§ 1551(95). Reports by teachers. — It shall be
the duty of the teachers to make and file with
the County Superintendent at the expiration of
each term of school, a full and complete report
of the whole number of scholars admitted to the
school during said term, distinguishing between
males and females and colored and white with
the names thereof; the entire and the average at-
[315]
§ 1551(96)
COUNTY BOARDS OF EDUCATION
§ 1551(99)
tendance, the branches taught, the number of
pupils engaged in the study of each of the said
branches, and such other statistics as may be
required to report by the County Superintend-
ent, or by the State School Superintendent.
Until such report shall have been filed by said
teacher, it shall not be lawful for said County
Superintendent to audit the account of said
teacher for his or her services. Acts 1919. pp.
288, 325.
This section is similar to § 1508 of the Code of 1910.
A teacher may be indicted for falsely swearing to a
monthly report made by him to a county school commis-
sioner for the purpose of participating in a public school
fund. Thompson v. State, 118 Ga. 330, 45 S. E- 410.
§ 1551(96). Consolidation. — The Board of Edu-
cation of any county shall have the right if, in
their opinion, the welfare of the schools of the
county and the best interests of the pupils re-
quire, to consolidate two or more schools locatec.
in the same or different districts into one school,
to be located by said Board at a place convenient
to the pupils attending the same, said school house
to be located as near the center of the district or
districts as practicable. Whenever two or more
schools are consolidated as hereinafter provided,
the County Superintendent shall call an election
of trustees for said consolidated schools from the
district or districts concerned; said election shall
be held in accordance with the provisions of exist-
ing law, and the result determined and declared by
the Board of Education. Acts 1919, pp. 288, 326.
Editor's Note. — It was held in Board v. Hunt, 159 Ga.
749, 756, 126 S. E- 789, that this section does not give
county boards authority to consolidate rural schools with
those established and maintained in municipalities, that the
policy of the State has been to keep independent municipal
schools separate and distinct from the county schools.
Section 1551 (140) provides that this act does not annul
or appeal any local law in force in any city or county
providing organization and maintenance of such schools.
However it has been provided by the Act of 1923, herein
codified as §§ 1551 (159) et seq., that high schools for
the children out of counties and municipalities may be es-
tablished and maintained under its provisions.
This section is not unconstitutional as violative of the
constitution. § 6437. Branson v. Long, 159 Ga. 288, 125
S. E. 500.
§ 1551(97). Appropriation for consolidated
schools. — Beginning with the year 1925, the State
Superintendent of Schools shall set aside $253,-
000.00, or so much thereof as may be necessary,
and for 1926 and the years to follow the State
Superintendent shall set aside $300,000.00 or so
much thereof as may be necessary, from funds
derived from the poll tax collected and paid into
the treasury, to aid in the establishment and
maintenance of consolidated schools in this State
When the County Board of Education shall com-
bine smaller schools into a standard or approved
consolidated school with at least four teachers,
and evidence of this fact is furnished by the
County Superintendent and Board of Education
to the State Superintendent of Schools, and when
it is made to appear to the State Superintendent
of Schools that aid is needed to support such con-
solidated school, the State Superintendent of
Schools shall be authorized to transmit $500.00 an-
nually to the support of such school.
If, in addition, the local school authorities pro-
vide for an approved or standard four year hign
school, and evidence of this fact is made to ap-
pear to the State Superintendent of Schools that
[3
aid is needed to support said four year high
school, the State Superintendent of Schools shall
be authorized to transmit $1,000.00 annually to
the support of said school, such funds in both
cases shall be used by local authorities in the
payment of salaries of principal and teachers.
When two or more schools in any County
qualify under this Act, either for the $500.00 aid
or for the $1,000.00 aid, the State Superintendent
of Schools shall determine to which one of such
schools said sums shall be paid, the State Sup-
erintendent of Schools shall be governed in his
decision by the extent to which the consolidated
district has utilized its local ability in building,
equipping and supporting its school, and by the
number of children to ibe reached by [the] such
consolidation, the number of teachers, and the
character of work being done by the school. No
county now receiving, or that may hereafter re-
ceive aid for both the consolidated ($500.00) and
the high school ($1,000.00) aid shall be eligible to
further apply for such aid until every other county
in the State has had an opportunity to apply. If
those counties not receiving both aids fail to
qualify then the State Superintendent of Schools
is authorized to extend further aid to those coun-
ties receiving either or both aids as provided in
this bill and on same conditions as set forth
above. Acts 1925, p. 147.
Editor's Note. — This section supersedes similar provisions
in the Acts of 1919, page 287 and 1922, page 151. The word
"the" in the last paragraph, placed in brackets by the
editors, is superfluous.
Interference with Payment by Citizen. — In order for a
private citizen to maintain action against the superintend-
ent to prevent him from paying over funds to county au-
thorities under the Act of 1922 mentioned above, he must
show that the duty is owed to individuals and that he
incurs special injury by the wrongful act. Sanders v.
Ballard, 160 Ga. 366, 127 S. E. 851.
§ 1551(98). Division of school districts. — The
County Board of Education shall have the further
power, when the best interests of schools de-
mand, to separate or divide any school district
into two or more school districts and to provide
for the election of a Board of Trustees for each,
of said districts, and to do all other things for the
government and control of said districts as is
herein provided for the organization and control
of school districts; provided, that such County
Boards of Education shall have authority to
establish two schools in any school district in
this State if they deem it best to do so. Acts
1919, pp. 288, 326.
A provision of the Acts of 1911, pp. 94, 104 was similar to
this section.
Rearrangements of All Districts of a County. — A county
board of education under this, and kindred sections, has
power to rearrange all the districts or any of the districts
of a county and create new ones. The new school district,
under consideration in this case, was legally created. The
decisions of Hodges v. Talbert, 135 Ga. 253, 69 S. E- 103,
was decided before this section. Stephens v. School Dist.,
154 Ga. 275, 114 S. E. 197.
As to election of trustees, see § 1551 (128).
§ 1551(99). Rearrangement of districts. — When-
ever in the opinion of the County Board of Edu-
cation, the best interests of the school demand,
the Board of Education shall have the right to
consolidate two or more districts or parts of dis-
tricts or to add any part of one district to any
other district or to change the line or lines of any
district at any time, when in their judgment, the
best interests of the schools require such change,
into one school district with the purpose of the
16]
§ 1551(100)
COUNTY BOARDS OF EDUCATION
§ 1551(102)
election of the Board of Trustees and of the loca-
tion of the school at some central place as here-
inbefore provided; but should as many as one-
fourth of the patrons of the said school or schools
object to the consolidation (provided that said
one-fourth of said patrons shall consist of at least
ten) it shall be the duty of the County Superin-
tendent to call an election to be held in said dis-
trict or districts affected, giving thirty (30) days'
notice of same by publishing the same once a
week for four weeks in the paper in which the
county advertisements are published, and also by
posting notice at least at three or more public
places in the district or districts to be affected
thereby, at which election should a majority of
the qualified voters vote for consolidation of
schools shall be consolidated, otherwise not. The
result of such election shall be determined and
declared by the Board of Education and the
same shall be held as other elections are held.
Acts 1919, pp. 288, 326.
A provision of the Acts of 1911, pp. 94, 105 was similar to
(his section.
Prerequisite to Call of Election. — Before the county su-
perintendent is authorized, or can be required, to call an
election for the purposes designated in this section, as many
as one-fourth of the patrons of all the schools of the sev-
eral districts to be affected (provided that one-fourth of
them shall consist of at least ten) by the proposed change
of the districts must object to the rearrangement. Shields
v. Field, 151 Ga. 465, 107 S. E. 44.
Construed with Cognate Sections. — The provision in this
section must be construed, in view of the entire section
and the cognate sections. Harrell v. Williams, 154 Ga. 632,
115 S. E- 97.
Election in Districts Effected. — The election required by
this section must be in the entire consolidated district and
not one of the districts of which it is composed. Harrell
v. Williams, 154 Ga. 632, 115 S. E. 97.
Burden in Attack of Validity. — After such election has
been held the burden is upon those attacking its validity
to show that a proper petition was not presented, and in-
terveners in this case failed to establish their contention.
Wilson v. Dunn, 143 Ga. 361 (85 S. E. 198); Ray v. Swain,
148 Ga. 203 (2) (96 S. E. 209). Davis v. Orland Consol.
School Dist., 152 Ga. 76, 108 S. E. 466.
Evidence held sufficient to support the judgment of val-
idation. Davis v. Orland Consol., School Dist., 152 Ga. 76,
108 S. E. 466.
§ 1551(100). Transportation of pupils. — When-
ever the County Board of Education deems it for
the best interest of the school, they shall have the
right to provide means for the transportation of
the pupils and teachers to and from said school.
Acts 1919, pp. 288, 327.
A provision of the Acts of 1911, pp. 94, 105 was similar to
this section.
"Means for the transportation" as used in this section con-
templates the vehicles or instrumentalities of transporta-
tion, and not merely the money for such purposes. Mc-
Kenzie v. Board, 158 Ga. 892, 124 S. E. 721.
Purchase of Trucks. — The county board of education can
purchase trucks for transportation and pay therefor from
the public-school funds of the county derived from the
State, or raised by county-wide taxation as authorized by
the constitutional amendment ratified November 2, 1920.
(Acts 1919, p. 66.) McKenzie v. Board, 158 Ga. 892, 124
S. E. 721.
Effect of Levy of Local Tax. — The trustees of a school
district which has levied a local tax and has a bonded treas-
urer are without power to furnish means of transportation.
McKenzie v. Board, 158 Ga. 892, 124 S. E- 721.
Expenses of Transportation Precede Equitable Distribu-
tion.— Expenditures for means of transportation, like those
for the purchase, lease, or rent of school sites, building, re-
pairing, or renting schoolhouses, purchase of maps, globes,
and school furniture, and making all arrangements nec-
essary to the efficient operation of the schools in the
county, precede, and do not constitute a part of, the
equitable distribution required in the constitutional amend-
ment, ratified November 1920 (Acts 1919, p. 66). McKenzie
v. Board, 158 Ga. 892, 124 S. E. 721.
[3
Transportation for Illegally Consolidated School. —The
board of education of Houston County was without au-
thority to consolidate two or more rural public schools
of that county with the school established and maintained
by the city of Perry under the Act of 1889, providing for
the establishment and maintenance of an independent school
system in that city, and forbidding said board to estab-
lish and maintain any school in that municipality; and such
board was without authority to contract for the transpor-
tation of pupils to and from said school, and to expend the
school funds of that county for that purpose. Hoard v.
Hunt, 159 Ga. 749, 126 S. E. 789.
§ 1551(101). Statement by County Superintend-
ents of sums due.— On the first day of each month
the county School Superintendent of each county
shall, under the approval of the County Board of
Education, transmit to the State School Superin-
tendent an itemized statement of the various sums
due and unpaid by the County Board of Educa-
tion on said several dates mentioned in the pre-
ceding Section whether the same be for teachers'
salaries, for pay of the County School Superin-
tendent or for any other item of expense properly
charged under the law to the County Board of
Education, and when said itemized statements
have been approved by the State School Superin-
tendent and presented to the Governor, the Gov-
ernor shall issue his warrants upon the Treasurer
for all the funds standing to the credit of each of
the several counties upon the books of the Treas-
urer, or for such part thereof as may be needed
to liquidate the indebtedness of the County
Board of Education of such county, as shown by
each itemized statement aforesaid. And the State
Treasurer shall, upon the presentation of the
warrants aforesaid, draw his checks for the
amount of said warrants in favor of the County
School Superintendent of the several counties and
the State School Superintendent shall immedi-
ately transmit said checks to the several County
School Superintendents, who shall promptly dis-
burse the money so received in payment of the sums
set out in the itemized statement aforesaid; and if
the money is not sufficient to pay said sums in
full, then it shall be pro rated among the various
items, provided, that the expenses of administra-
tion for each month shall first be paid in full, and
the County Board of Education are hereby au-
thorized to make their contracts in such manner
that the amounts payable to teachers for services
rendered shall become due and payable monthly.
Acts 1919, pp. 288, 327.
This section is similar to § 1548 of the Code of 1910.
Proper Action to Enforce Performance of Duties. — Manda-
mus is the proper remedy to compel the superintendent to
perform his duties under this section. Even if an action
at law would lie to recover the unpaid salaries of a teacher
he could not enforce his judgment because there would be
nothing upon which to levy or sell; a suit at law of this
character would be no remedy. Board v. Palmer, 134 Ga.
662, 68 S. E. 583; Mattox v. Board. 148 Ga. 577, 581, 97 S.
E. 532.
The county superintendent is made the responsible dis-
bursing officer under this section. Ferguson v. Smith, 27
Ga. App. 806, 110 S. E. 42.
§ 1551(102). Borrowing to pay teachers. — The
County Boards of Education of the several coun-
ties of this State shall have the power and au-
thority whenever they deem it necessary to bor-
row sufficient amounts of money, and no more,
to pay for the operation of the public schools of
their counties; provided, that no Board of Educa-
tion shall have authority under this law to bor-
row a sum of money greater in the aggregate
than the sum to which the county may be entitled
17]
§ 1551(103)
COUNTY BOARDS OF EDUCATION
§ 1551(112)
from the public school fund. Acts 1919, pp. 288,
328.
A provision of the Acts of 1910, pp. 76, 77 was similar
to this.
A provision of the Acts of 1911, pp. 94, 103 was similar
to this section.
As to power of school district to create indebtedness,
see note under § 1551 (155).
Sale — Creation of Bailment.— Where warrants are so is-
sued and delivered to county superintendent under pro-
visions of the act, such officers have express power to
sell and assign the warrants and collect the money aris-
ing- from- the sale. Having such power, it is competent
in making the sale to create a bailment of the money.
Berrien v. State, 156 Ga. 380, 119 S. F. 300.
States Control of Warrant after Delivery to County. —
The State, after the delivery of the warrant to the county
superintendent, can not legally exercise any control over
it or the proceeds arising from discount. Berrien v.
State, 158 Ga. 380, 119 S. E. 300.
Owner of Money after Discount. — After warrant has
been issued to county superintendent and he endorses it
to "A" for discount, the money realized is the property of
the county. Berrien v. State, 156 Ga. 380, 119 S. F. 300.
Discount — State Officer as Agent for County Superin-
tendent.— A State superintendent acted for the county
when he delivered the warrant to "A" for discounting
and in a prosecution against A for larceny after trust, an
allegation in the indictment that the money was entrusted
to him by the superintendent of schools of the county
would be supported by proof that the money was deliv-
ered to him by the State superintendent of schools. Ber-
rien v. State, 156 Ga. 380, 119 S. E- 300.
§ 1551(103). Resolution authorizing loan. — In
order for' any Board of Education to borrow
money for the purposes hereinbefore stated there
shall be passed by said Board a resolution au-
thorizing said money to be borrowed, in which
resolution it shall be stated the amount of money
to be borrowed, the length of time the same is to
be used, the rate of interest to be paid and for
what purpose borrowed and from whom the same
is to be borrowed, which resolution shall be by
the County School Superintendent recorded on
the minutes of the meetings of said Board of Edu-
cation. Acts 1919, pp. 288, 328.
A provision of the Acts of 1910, pp. 76, 77 was similar to
this section.
§ 1551(104). Term of loan. — No money shall be
borrowed for any longer time than is necessary
and the same shall be paid back out of any funds
coming into the hands of the County School Sup-
erintendent that can be legally applied to the
payment of the same. Acts 1919, pp. 288, 328.
A provision of the Acts of 1910, pp. 76, 77 was similar
to this section.
§ 1551(105). Interest.— Said Board of Educa-
tion so borrowing money shall borrow the same
at as low a rate of interest as possible and they
are authorized to pay the interest on said money
out of the public school fund for said county. Acts
1919, pp. 288, 329.
A provision of the Acts of 1910, pp. 76, 78 was similar
to this section.
§ 1551(106). Reports to grand juries. — At the
opening term of the Superior Court of each
county in this State where money has been bor-
rowed by the Board of Education under the pro-
visions of this law, the County School Superin-
tendent shall include in his report to the grand
jury the amount of money so borrowed during
the preceding year, from whom borrowed, the
rate of interest paid, the date or dates the same
was borrowed and when paid back. Acts 1919,
pp. 288, 329.
A provision of the Acts of 1910, pp. 76, 78 was similar to
this section.
§ 1551(107). Notes for money. — After the res-
olution aforesaid has been passed by any Board
of Education the president of the Board of Edu-
cation, together with the County School Sup-
erintendent, shall have the right to execute a
note or notes in the name of the Board of Educa-
tion of said county for any money that is au-
thorized to be borrowed, under the resolution
passed by said Board of Education. Acts 1919, pp.
288, 329.
A provision of the Acts of 1910, pp. 76, 78 was similar to
this section.
§ 1551(108). Money, how used. — When any
money shall be borrowed under the provisions of
this law, the same shall be paid over to the
County School Superintendent and become a part
of the public school fund of said county and the
same shall be by the County School Superinten-
dent paid out to the teachers of said county and
the County School Superintendent shall be re-
sponsible for any money borrowed under the au-
thority of this law and paid into his hands in the
same way and to the same extent that he is re-
sponsible for any other public school funds com-
ing into his hands. Acts 1919, pp. 288, 329.
A provision of the Acts of 1910, pp. 76, 78 was similar
to this section.
Responsible Disbursing Officers of Borrowed Funds. —
The county superintendent is made the responsible dis-
bursing officer of borrowed funds under this section in
the same way as of State funds under § 1551 (101). Fer-
guson v. Smith, 27 Ga. App. 806, 110 S. F. 42.
§ 1551(109). Excessive appropriations. — It
shall be unlawful for any Board of Education to
make any contract involving the expenditure, of
funds in excess of the total appropriation for the
current fiscal year. Any indebtedness created,
contract made, or order or draft issued in viola-
tion thereof shall be void. Acts 1919, pp. 288, 329.
The appropriation referred to in this section does not
relate to funds set aside by the board of education, but
to funds received by them from all sources for the sup-
port of the public schools in the county for the current
fiscal year. McKenzie v. Board, 158 Ga. 892, 124 S. F.
721.
§ 1551(110). Warrants in anticipation of reve-
nue.— For the purpose of anticipating collection
of the taxes of any year, the Governor is author-
ized to draw his warrant at the end of each and
every month during any year, in the favor of the
State School Superintendent or of the several
County School Superintendents and treasurers of
local school systems, in the discretion of the State
Board of Education, for such amount or amounts
as are then due the teachers. Said warrants shall be
drawn on the funds . appropriated by the Legisla-
ture for any year, and shall not exceed in the ag-
gregate amount the appropriation for the public
schools so made for that year. The honor of the
State is pledged to the payment thereof. Acts
1919, pp. 288, 330.
A provision of the Acts of 1915, p. 56 was similar to this
section.
§ 1551(111). Sale of warrants at discount. — It
shall be lawful to sell at a discount said warrants
to any person, bank, or banking institution, the
said sale to be made at the lowest possible rate of
discount. Acts 1919, pp. 288, 330.
A provision of the Acts of 1915, p. 57 was similar to
this section.
§ 1551(112). Manual labor schools. — The
County Board of Education shall have power to
[318]
§ 1551(113)
COUNTY BOARDS OF EDUCATION
§ 1551(119)
organize in each county one or more manual
labor schools on such a plan as may be self-sus-
taining; provided, that the plan be first approved
by the State Board of Education. Acts 1919, pp.
288, 330.
As to industrial education, see § 1551 (115).
This section is similar to § 1510 of the Code of 1910.
§ 1551(113). Evening schools.— The Board of
Education of any county or municipality shall
have power to establish, at such places as they
may deem proper, a suitable number of evening
or part time schools for the instruction of youths
over fourteen years of age who are prevented by
their daily vocations from attending the all day
schools, subject to such regulations as may be
provided by the State Board for Vocational Edu-
cation. Acts 1919, pp. 288, 330.
This section is similar to § 1511 of the Code of 1910.
§ 1551(114). High schools.— The Board of Edu-
cation of any county or municipality shall have
the right to establish one or more high schools
or junior high schools as in their opinion may be
necessary and may be possible through local tax-
ation funds. Acts 1919, pp. 288, 330.
The language, "local taxation funds," embraces funds
raised both by county -wide taxation and by a tax levied
in the school district. State aid is now provided to en-
able the local authorities to pay the salaries of the prin-
cipal and at least one assistant high-school teacher, where
such authorities .provide for a standard four-year high
school in addition to the establishment and maintenance
of consolidated schools in any county. Smith v. Tolbert,
160 Ga. 268, 271, 127 S. E. 868.
Amount of Tax Which May Be Levied. — See § 6579, and
see McMillan v. Tucker, 154 Ga. 154, 113 S. E. 391; Jen-
nings v. New Bronwood School Dist., 156 Ga. 15, 118 S.
E. 560; Smith v. Tolbert, 160 Ga. 268, 127 S. E- 868.
§ 1551(115). Industrial Education in) public
schools; department of industrial education. —
The Board of Education, or other constituted au-
thorities having charge of the public schools in
those counties or municipal corporations having
a system of public schools supported by local
taxation may open and annex to said public
schools, in their discretion, a department of in-
dustrial education, in which the students may be
taught agriculture, home economics, or trades
and industries under such rules and regulations
as may be prescribed by the State Board for
Vocational Education. It shall be lawful to pro-
cure the necessary equipment and pay teachers
and the said Board, or other constituted authority,
shall determine the number of such schools, the
place where located, and the terms or sessions of
same, together with the ages at which children
may attend the same. Acts 1919, pp. 288, 331.
As to manual labor schools, see § 1551 (112).
This section is similar to § 1530 of the Code of 1910.
Applied in Board v. Butler, 154 Ga. 569, 574, 115 S. E. 10.
§ 1551(116). Agriculture and home economics;
extension work agents. — The Boards of Education
of the several counties of this State may employ
and pay county agents and home demonstration
agents to carry on the extension work in agri-
culture and home economics under the provi-
sions of the Acts of Congress, approved May 8th,
1914 (Barnes Federal Code 8413-8414-8518) the
State's acceptance of the same approved August
14, 1914. Also may employ and pay agricultural
teachers and home economics teachers when em-
ployed in the consolidated schools of the coun-
ties under provisions of the Vocational Educa-
tional Act of Congress of February 23rd, 1917,
and Acts of Georgia approved August 21st, 1917.
Acts 1922, p. 82.
Vocational Training in Local Tax Districts. — The county
board of education of this State, in counties having a sys-
tem of public schools supported by local taxation, are au-
thorized to employ, and pay from the school funds of such
counties, county demonstration agents, vocational agricul-
tural teachers, and home demonstration agents. Board v.
Butler, 154 Ga. 569, 115 S. E- 10.
Consolidate County and City School. — The board of edu-
cation of a county, in which a system of public schools is
supported by local taxation, is without authority to employ
one to teach agriculture in the high school of a city main-
taining an independent public- school system, and to pay
such teacher of the funds belonging to the former system,
although students from the country districts, as well as
those from the city, are taught by such teacher, and al-
though the city furnishes the class-room and laboratory for
conducting such teaching; especially where it is not shown
that the value of the use of the class-room and laboratory
is equal to the funds of the county -school system applied to
the payment of such teacher. Board v. Butler, 154 Ga. 569,
115 S. E. 10. But see § 1551 (159).
§ 1551(117). School fund.— Fifty per cent of all
revenues received by the State from all sources
of income or taxation shall be used and expended
tor the support and maintenance of the common
schools of Georgia for the year in which said in-
come or taxes are due and payable. Acts 1919,
pp. 288, 331.
§ 1551(118). Free tuition, etc. — Admission to
all common schools shall be gratuitous to all
children between the ages of six and eighteen
years residing in the sub-districts in which the
schools are located. Colored and white children
shall not attend the same school; and no teacher
receiving or teaching white and colored pupils in
the same school shall be allowed any compensa-
tion at all out of the common school fund. Acts
1919, pp. 288, 331.
This section is similar to § 1509 of the Code of 1910.
Fees for Nonresidents. — The exaction of an incidental fee
to be paid each pupil as a condition of admission into the
public schools of a town, though constitutional as to non-
resident pupils, would be unconstitutional if applied to
resident pupils also. Irvin v. Gregory, 86 Ga. 605, 13 S.
E- 120.
Mandamus Proper Remedy. — Where a pupil has been
refused admission to a public school because of his fail-
ure to comply with an alleged illegal requirement of the
trustees of the school, the remedy of his parents is by
mandamus to compel the proper officer of the school to
admit him, and not by injunction to restrain the enforce-
ment of the alleged illegal requirement. McCaskill v.
Bower, 126 Ga. 341, 54 S. E. 942; Board v. Felder, 116 Ga.
788, 43 S. E- 56.
§ 1551(119). County line schools. — In special
cases to meet the demand of convenience, child-
ren residing in one sub-district may by express
permission of the county Board, attend the com-
mon school of another sub-district, and when a
common school is located near a county line,
children from an adjoining county shall be permit-
ted to attend the school; provided, such child-
ren reside near such schools or said school is
more accessible to the residence of such children
than any public school in the county of their res-
idence. In such cases the teachers shall report
separately the pupils from each county, but make
the reports to the superintendent of the county
in which the school is located, and with which
superintendent the teacher shall contract and
from whom she shall receive her pay; but such
superintendent shall report to the superintendent
of the other county, and shall be reimbursed by
him for the proportionate amounts paid for main-
[319]
§ 1551(120)
LOCAL TAXATION FOR SCHOOLS
§ 1551(125)
tenance of said school in the ratio of the attend-
ance from the other county to the whole attend-
ance. Arrangement for attendance upon county
line schools is under the authority and direction
of the superintendent concerned representing
their respective boards and provisions shall be
made for such children just as for others. Acts
1919, pp. 288, 331.
This section is similar to § 1509 of the Code of 1910.
§ 1551(120). County entitled to part of funds. —
As soon as the County Board shall communicate
satisfactory evidence to the State School Superin-
tendent that arrangements have been made, by
taxation or otherwise, for continuing the com-
mon schools, free to all, for at least six months
in the year, throughout the entire county, said
county shall be deemed and held entitled to draw
her proportionate part of the State funds. Acts
1919, pp. 288, 332.
This section is similar to § 1512 of the Code of 1910.
§ 1551(121.) Failure to arrange for schools. —
Whenever a Board of Education shall fail in any
year to make arrangements to put schools in
operation, it shall forfeit all rights to participa-
tion in the school funds of that year, unless the
failure to arrange for such , schools was from
Providential cause, or other good and sufficient
reason to be judged of by the State Board of
Education. Acts 1919, pp. 288, 332.
As to the setting aside of money for the county for
school use, see § 1551 (72).
This section is similar to § 1513 of the Code of 1910.
§ 1551(122). Liability for and distribution of
funds. — When the funds drawn under apportion-
ment, and any funds raised by local taxation, are
placed in the hands of any County Superinten-
dent, he shall be holder for all amounts received
on his official bond as treasurer, and shall dis-
burse the same only upon the order of the County
Board of Education, and the said County Superin-
tendent shall not be entitled to compensation for
receiving any funds as herein provided. Acts
1919, pp. 288, 332.
This section is similar to § 1514 of the Code of 1910.
§ 1551(123). School fund to be kept separate. —
When said common school fund shall be received
and receipted for, it shall be the duty of the of-
ficers authorized by law to receive such fund and
keep the same separate and distinct from other
funds and said funds shall . be used for educa-
tional purposes, and none other, and shall not be
invested in bonds of this State, or in other stock,
except when investment is necessary to carry out
the conditions of an endowment, devise or gift,
or bequest; and .when taxes are paid into the
Treasury of the State the Comptroller-General
shall in no case receipt a tax collector for the
same until that part of the tax so paid in, which
was raised for school purposes, is separated in
amount- from the gross amount paid in. Acts
1919, pp. 288, 333.
This section is similar to § 1516 of the Code of 1910.
§ 1551(124). Property exempt from taxation.—
Each and every lot or parcel of land which has
been, or may be hereafter obtained by any County
Board of Education for the use of common
schools, together with any school buildings
erected thereon, and all school furniture, shall be
exempt from all taxes, and from levy and sale
under any execution or other writ or order in the
nature of an execution; provided the lot of land so
exempted shall not exceed four acres, and if there
be any excess over that number of acres, then that
portion not to exceed four acres, most convenient
for school purposes, shall be exempt as aforesaid,
the exempted portion to be set off by order of the
County Board. Acts 1919, pp. 288, 333.
As to exemptions from taxation, see § 998.
This section is similar to § 1517 of the Code of 1910.
§ 1551(124^). Annual budgets to be filed with
State Department of Education, — Eadh county
and independent public school system receiving
funds from the State shall annually, through its
executive officer make out and submit to the State
Department of Education an estimated budget of
its receipts from all sources and its proposed ex-
penditures for the next year, according to blank
forms to be prescribed and furnished by the
State Department of Education, and upon such
dates as may be required by the State Department
of Education, and that the filing of such estimated
budgets shall be made before the State Superin-
tendent of Schools may transmit to such public
school systems any of the State School funds for
the year for which such budget is made. The
budgets provided for in this Act shall be so made
out as to properly systematize and classify the
estimated receipts and proposed expenditures for
the year, showing whether estimated receipts will
be from the State, from the County, the Dis-
trict, the City, Donations, Bonds, or from other
sources; and the estimated expenditures shall
definitely set up amounts to be expended for "ad-
ministrative expenses," "instruction*/* "operat-
ing expenses," "maintenance," "buildings,"
"equipment," "debts," or such other classifica-
tions as the State Department of Education may
prescribe. When the completed budget is made
out as required by the State Department of
Education, it shall be in duplicate and sworn to
by the Chairman of the Board and executive of-
ficer. When duly approved by the board a copy
shall be put on file in its office, and another copy
sent to the State School Superintendent who
shall then be authorized to send such funds as
may be in his hands to the credit of the county,
or independent system, and such County, or in-
dependent system shall in their expenditures of
all public school funds from whatever sources
conform to said budget. No budget of expenses
shall exceed its estimated income. Acts 1925,
p. 135.
ARTICLE 6.
Local Taxation for Schools.
§ 1551(125). Local tax districts; how laid off. —
As soon thereafter as practicable, it shall be the
duty of the County Board of Education of each
county in Georgia to lay off the county into
school districts, the lines of which shall be clearly
and positively defined by boundaries such as
creeks, public roads, land lots, district lines or
or county lines. The school district thus marked
out shall contain an area of not less than sixteen
square miles, provided, that the Board of Edu-
cation may have the right to establish districts
with areas less than sixteen square miles where
there are natural causes of local conditions that
[320]
§ 1551(126)
LOCAL TAXATION FOR SCHOOLS
§ 1551(128)
make it necessary to do so. The natural causes
which will permit the creation of smaller dis-
tricts are mountains, streams over which there
are no bridges and dangerous roads. Local con-
ditions which will permit the creation of smaller
districts must be determined by the Board of
Education. Acts 1919, pp. 288, 333.
As to constitutional provision concerning educational tax,
see § 6579.
This section is similar to § 1531 of the Code of 1910.
A substantial compliance with this section is sufficient.
Beckham v. Gallemore, 147 Ga. 323, 324, 93 S. E- 884.
Lines Not Mentioned in Section. — While the lines of school
districts must "be clearly and positively defined by bound-
aries, such as creeks, public roads, land lots, district lines,
or county lines," boundaries other than those mentioned, if
clearly and positivelv denned, will not render districts void.
Stephens v. School Dist., 154 Ga. 275, 114 S. E- 197.
Entire County Must be Laved Off. — A laying out of less
than the entire county into school districts is not such a
division of the county into school districts as is contem-
plated and provided for; and where there has not been such
a division and laying out of the county as the act pro-
vides for, the levy and collection of a school tax by virtue
of an election held in any particular district is illegal. Grier
v. Loyless, 143 Ga. 428, 85 S. E- 323; Graham v. Roberts,
145 Ga. 758, 89 S. E. 1045. Omission of part of the territory
constitutes a substantial defect and invalidates the whole
proceedings. Tolbert v. Teal, 146 Ga. 644, 92 S. E. 46;
Lansdell v. King, 134 Ga. 536, 68 S. E. 102.
Discretion of Board. — The laying off of school districts is
a matter that must be determined by the board of edu-
;ation, and a court of equity will not entertain jurisdic-
tion of subject where there is no abuse of discretion. Beck-
ham v. Gallemore, 147 Ga. 323, 324, 93 S. E. 884.
Improper Division- Makes Tax Void. — No proper division
->f the county into school districts having been made, the
levy of the tax by virtue of an election was void, and no
estoppel was raised as against any taxpayer to test the
validity of the division of the county into school districts
and the levy of the tax by virtue of an election held in
any such district. Grier v. Loyless, 143 Ga. 428, 85 S. E-
523.
Burden of Proving District Properly Layed Off. — After
the election has been held, and on a proceeding to validate
such bonds, the burden would not be upon the State to
show that the county had been legally laid out into school
districts, although there was an allegation in the petition,
"that School District No. 3 is a district in which a local
tax is now or may hereafter be levied for school purposes."
Davis v. Orland Consol. School Dist., 152 Ga. 76, 108 S. E.
166; Stephens v. School Dist., 154 Ga. 275, 114 S. E. 197. See
§§ 440 et seq.
Railroad as Boundary. — Where a railroad is made the
xmndary between two school districts, the railroad is no
nore in one district than the other. The line is the cen-
:er of the railroad midway between the rails of the main
:rack. Beckham v. Gallemore, 147 Ga. 323, 325, 93 S. E-
m.
Boundaries May Be Altered.— A county board of educa-
tion may, after the county was laid off into school dis-
:ricts, alter the boundaries of a district, but they do not
aave the authority to cut off substantial portions of sev-
eral adjacent districts and out of the portions so cut off
establish a new school district. Hodges v. Talbert, 135 Ga.
>53. 69 S. E. 103.
Militia Districts as School Districts. — The adoption of a
resolution by a county board of education, that the terri-
tory embraced in each militia district in the county shall
constitute a separate school district, is not, without more, a
substantial compliance with the positive requirements of the
statute in relation to the laying off and marking out of
:he county into school districts by the county board of edu-
cation; and a school district sought to be established merely
Dy such a resolution is not a lawful district, and an elec-
tion within such territory for the determination of the
question of imposing a local tax therein for the support of
public schools is illegal. Brown v. Hawkins, 139 Ga. 697,
77 S. E. 1123.
Decision of County Board Not Final.— The decision of the
:ounty board of education and of the State school commis-
sioner, holding that a new school district had been prop-
erly and legally established, was not binding as an adju-
dication so as to prevent an appeal to the courts, upon the
part of the taxpayers and residents of the portion of the
territory so cut off from a district as originally laid out, to
prevent a misappropriation of the funds raised by taxation
upon their property. Hodges v. Talbert, 135 Ga. 253, 69 S.
E 103. As to appeal from decision of board, see § 1551 (90).
Ga. Code— 11
§ 1551(126). Local tax districts across county
lines. — By concurrent consent and action, Board
of Education of two or more adjoining counties
may lay off and define school districts without re-
gard to county lines; provided, that the Board of
Education of the county in which the school
house is located shall have supervision of same
and provided, that the ordinary of the county in
which the school house is located shall order the
election; and provided, that the tax collector of
each county from which territory has been cut,
shall collect the school tax levies [levied] by the
trustees of the school district thus formed in the
territory cut from his county and shall pay the same
when collected to the authorized officer of the board.
And provided further, if either county votes
county-wide local taxation for schools, thus au-
tomatically absorbing existing local tax districts
into the county-wide system, that in such cases
that part of any existing local tax district lying
outside of the county so voting the county-wide
local school tax shall be also automatically in-
cluded for purposes of school support and admin-
istration in the county so voting the county-wide
local school tax so as not to interfere with existing
local school conditions. Acts 1919, pp. 288, 334.
This section is similar to § 1531 of the Code of 1910.
§ 1551(127). Failure to lay off districts. — The
failure on the part of any Board of Education to
perform the duties required by this Article shall
be immediately inquired into by the first grand
jury setting after such neglect of duty, and if
said grand jury shall find any member or mem-
bers of said board have failed to perform their duty
it shall report the same to the judge of the Su-
perior Court, who shall cause a rule nisi to issue
against such member or members, and they shall
be heard by the judge in their own behalf; if said
member or members cannot give a good and suf-
ficient reason why they have not performed their
duties as required by this Article, they shall be
discharged, and the said judge shall fill the vac-
ancies until the next grand jury shall meet. Acts
1919, pp. 288, 334.
Appeal from Appointment. — Filling vacancies by the judge,
as required by this section, is not a judgment of the su-
perior court to which a bill of exceptions may be filed,
bringing such action to the supreme court for review.
Board v. Paulding County Grand Jury, 134 Ga. 839, 68
S. E. 552.
This section is similar to § 1532 of the Code of 1910.
§ 1551(128). Election of trustees. — Within
ninety days after the Board of Education has laid
off the county as required in Section 1531 [§ 1551-
(125) of this Code], said board may or may not
order the citizens of the several school districts
to hold an election for the purpose of electing
three trustees for each district in the county. The
election shall be held at a time and place and in
a manner prescribed by the County Board of
Education. The trustees shall be intelligent citi-
zens of good moral character who are known to
be earnest supporters of public education, and
they shall serve, one for three years, one for two
years, and one for one year, as the County Board
of Education may determine. In districts con-
taining incorporated towns there may be five
trustees, one of whom shall be elected for one
year, two for two years, and two for three years.
The notice of their election shall be filed by the
election managers with the Count}' School Sup-
[ 321
§ 1551(129)
LOCAL TAXATION FOR SCHOOLS
§ 1551(131)
erintendent, who shall submit the same to the
County Board of Education for their approval.
After the local board of trustees have been ap-
proved and properly commissioned by the County
Board of Education it shall meet immediately
and organize by electing one of the members
president, and one secretary and treasurer. If the
County Board of Education should consider any
member or members unqualified for the work, they
shall refuse to confirm the election of such mem-
ber or members and require the citizens of a dis-
trict at a time and place and in a manner pre-
scribed by the County Board of Education to
elect others. At the expiration of the term of of-
fice of the members thus elected the citizens of a
district shall meet at a time and place, and in a
manner prescribed by the County Board of Edu-
cation, and elect their successors, who must be
approved by the County Board of Education as
hereinbefore provided, and the election shall be
for a term of three years. If any member should
refuse to act, or should be guilty of any conduct
unbecoming the dignity of a school trustee, the
County Board of Education shall have the right,
upon written complaint of a majority of the vo-
ters of the district to remove said member and
have his successor elected as hereinbefore pro-
vided. But no trustee shall be removed from of-
fice without sufficient proof, and he shall be
served with a copy of such complaint at least ten
days prior to the day set for the hearing, when
such trustee shall be afforded an opportunity to
be heard in his defense. Acts 1919, pp. 288, 335.
As to provision for trustees where line districts con-
solidated, see § 1551 (96).
This section is similar to § 1533 of the Code of 1910.
This section is not unconstitutional as violative of the
constitution, § 6437. Branson v. Long, 159 Ga. 288, 125
S. F. 500.
Power to Refuse Approval of Trustees. — If intelligent
citizens of good and moral character, who are known to
be earnest supporters of public education, are duly elected
trustees of a school district, the county board of educa-
tion is not clothed with absolute discretion to refuse to
approve their election and to commission them, said board
having power to refuse to confirm the election of such
trustees only when the persons elected are unqualified for
the work; that is, where they lack the qualifications pre-
scribed for such trustees under this section; but in de-
termining whether persons elected trustees possess these
qualifications, the board of education is clothed with offi-
cial discretion which will not be interfered with unless
abused. Bryant v. Board, 156 Ga. 688, 119 S. F. 601.
The county board of education is without authority to
refuse to confirm the election of trustees and to issue them
commissions on the ground that such trustees decline to
assume personal responsibility for an indebtedness in-
curred by their predecessors in office in behalf of the school
district. Bryant v. Board, 156 Ga. 688, 119 S. £. 601.
Mandamus to Compel Issuance of Commission. — Mandamus
will lie against the county board of education, to compel
them to issue commissions to persons duly elected trustees
of a school district in accordance with the provisions of this
section when such board improperly refuses to confirm the
election of such trustees and to issue to them their com-
missions. Harrell v. Williams, 154 Ga. 632, 115 S. F. 97;
Bryant v. Board, 156 Ga. 688, 119 S. F. 601.
A petition for mandamus by the patrons of a public school
of a school district, showing the election of trustees in ac-
cordance with the provisions of this section and that the
returns of the election have been duly made to the proper
office, is not open to attack by general demurrer. Harrell
v. Williams, 154 Ga. 632, 115 S. Fv. 97.
Collateral Attack on Election of Trustees. — The interven-
ors objected to the validation of bonds on the ground, that,
as the trustees were not elected by the citizens of the dis-
trict as required by this section, their appointment, the call-
ing of said election, and the election itself were null and
void. Such trustees were de facto trustees, and their ac-
tion as such in calling this election can not be collaterally
attacked as void on account of the manner of their selec-
tion and appointment. Stephens v. School Dist., 154 Ga.
275, 114 S. F- 197.
§ 1551(129). Duties of trustees; bond of treas-
urer.— Where trustees are elected; they shall be
commissioned by the County Superintendent and
Board of Education through certificates furnished
by the State Superintendent of Schools. This
certificate shall be the warrant for the trustees to
enter upon the performance of the duties of his
office. These duties are as follows:
To visit the schools as often as practicable; to
inspect the school work done; to make recom-
mendations to the Board of Education for the ad-
vancement of the school interests; to aid, by rec-
ommendation of desirable applicants, the County
Superintendent and Board of Education in
keeping the school house and grounds in good
condition and equipped for good work; to aid the
county educational authorities in keeping the
school supplied with fuel, water, and proper san-
itary necessities; to make a written report once a
year and oftener if necessary, to the County Board
of Education, and in addition to the trustee ap-
pointed as treasurer shall keep an accurate ac-
count of moneys received and paid out in a sub-
stantially bound book and submit a report each
year to the County Superintendent and the State
School Auditor. Further, the treasurer shall
make proper bond payable to the County Board
of Education. ' In the event of failure to make
this bond as required, all funds raised by local
taxation, or otherwise, shall be paid over to the
County Board of Education, to be disbursed by
order of that body. Acts 1919, pp. 288, 336.
Powers of Trustees. — "The powers of the trustees of lo-
cal school districts which do not levy a tax for educational
purposes are defined in this section and the powers of the
trustees of such districts as levy a tax for such purposes
are defined in § 1551 (141). Baggerly v. Bainbridge State
Bank, 160 Ga. 556, 561, 128 S. F. 766.
Same — To Borrow Money. — Neither class of trustees can
borrow money to pay operating expenses. Board v. Fudge,
4 Ga. App. 637, 62 S. F- 154; Baggerly v. Bainbridge State
Bank, 160 Ga. 556, 561, 128 S. F. 766. But see § 1551 (102)
as to power of county boards to borrow money.
§ 1551(130). Power to collect taxes. — Power
is hereby delegated to, and conferred upon the
several counties of this State to levy and collect
taxes for educational purposes in such amounts as
the county authorities shall determine, the same
to be appropriated to the use of the County Board
of Education, and the educational work directed
by them. Acts 1922, pp. 81, 82.
Constitutionality. — This act is not violative of the pro-
visions of the constitution, § 6579, in that the act purports
to give county authorities the right to levy taxes within
the independent school districts. Hanks v. D'Arcy, 156 Ga,
55, 118 S. F. 656.
The levy of the county-wide tax sought to be enjoined is
authorized by this act, and the court erred in granting the
injunction. Hanks v. D'Arcy, 156 Ga. 55, 118 S. F. 656.
§ 1551(131). Local tax election for county. —
Whenever the citizens of any county wish to
supplement the public school fund received from
the State by levying a tax upon the property of
the county, it shall be the duty of the Ordinary
to order an election not earlier than twenty days,
nor later than sixty days, after receiving a peti-
tion of one-fourth of the qualified voters of the
county unless the number of qualified voters in a
county shall exceed five thousand, in which event
the ordinary shall order the election after re-
ceiving a petition of one-fourth of said voters,
[ 322 ]
§ 1551(132)
LOCAL TAXATION FOR SCHOOLS
§ 1551(133)
and notice shall be published in at least three
weekly issues of the county newspaper in which
legal advertisements of the county are published.
Said elections shall be held as ordinary county
elections are held. Those favoring the levying
of the local tax shall vote for "local tax for public
schools;" those opposed shall vote "against local
tax for public schools." The returns of said elec-
tions shall be made to the Ordinary of the county,
who shall declare the result, and two-thirds of
those voting shall be necessary to carry said elec-
tion for local taxation for public schools. An
election for the same purpose shall not be held
oftener than every twelve months. No person
shall be allowed to vote in said election except
those regularly qualified to vote in the State and
county elections. If the election is carried for
local taxation, the Ordinary or Board of County
Commissioner, whichever levies the county tax
shall levy a local tax as recommended by the
county Board of Education, or such board of
public education, whether established by a gen-
eral or local law, as has control of the public
schools of the county, upon all the property of
the county, not to exceed one-half of one per cent,
and the same shall be collected by the county tax
collector and paid by him to the County Board of
Education or such board of public education,
whether established by a general or local law, as
has control of the public schools of the county.
The county tax collector shall keep the funds
thus collected separate and distinct from all
county and State funds and he shall receive a
commission of two and one-half per cent for
collecting the same. He shall pay over to the
Board of Education all moneys collected for the
schools once a month; provided, that if there be an
incorporated town in a county holding an elec-
tion as provided in this Section now operating a
public school system, it shall not be included in
the election without the consent of the muni-
cipal authorities, but if the municipal authorities
should so wish, they may abolish their system
by a special x\ct of the Legislature and avail
themselves of the provisions of this Article. This
Section shall not be construed as abridging or
impairing any right of taxation for public schools
now possessed by any educational board of any
county of this State under existing laws. Acts
1919, pp. 288, 337.
As to school tax, see § 1116 (3). As to assessments by
tax receiver, see § 1116 (4).
This section is similar to § 1534 of the Code of 1910.
§ 1551(132). Election expenses. — The expense
of an election held in a county or district to de-
termine whether there shall be local taxation for
the support of common or public schools, as pro-
vided for under the legislation generally known
as the McMichael Act, should be paid by the county
and should not be taken from the common or
public school fund. Acts 1919, pp. 288, 338.
§ 1551(133). Election for school district. —
Whenever the citizens of any school district wish
to supplement the funds received from the State
public school fund by levying a tax for educational
purposes, they shall present a petition from one-
fourth of the qualified voters of the district to
the Ordinary who shall order the election not
earlier than twenty days nor later than sixty days
after the petition is received; provided, that no-
[3:
tice of same shall be posted in at least three con-
spicuous places in the district ten days prior to
the election. The election shall be held at a time
and place prescribed by the proper authorities,
and under rules governing ordinary elections.
Those favoring local taxation for public schools
shall vote "For local taxation for public schools;"
those opposed shall vote "Against local taxation
for public schools." The returns of said election
shall be made to the Ordinary of the county, who
shall declare the results, and two-thirds of those
voting shall be necessary to carry the election
for local taxation for public schools. No person
shall vote in said election except the regularly
qualified voters residing in the district six months
prior to the election. An election for the same
purpose shall not be held oftener than every
twelve months. Acts 1919, pp. 288, 338.
This section is similar to § 1535 of the Code of 1910.
Jurisdiction Prima Facie Determined by Calling Election.
— Where a paper (or petition) was filed, and the election
was held, the calling of the election determined, at least
prima facie, that all the jurisdictional facts required by
law tor such purpose were made to appear, and that the
petitioners were of a sufficient number as required by stat-
ute in such cases. Wilson v. Dunn, 143 Ga. 361, 85 S. E-
198.
Ordinary Declares Result. — Where the requisite majority
has been obtained it is the duty of the ordinary to de-
clare the result. Connally v. Morrison, 140 Ga. 492, 79 S.
E. 119.
Entry on Minutes. — Where the ordinary formally declared
the result of the election, but failed to enter the returns
on the minutes of his court, for the reason that he did not
consider that the law required it, an injunction will not be
granted. Wilson v. Dunn, 143 Ga. 361, 85 S. E. 198.
Substantial Compliance with Ballot Sufficient. — Where
form of ballot is prescribed, a substantial compliance is suf-
ficient where ballots were cast "against local taxation for
schools" (omitting the word, "public") this, clearly expressed
the intention of the voters and such ballots should be
counted. DuPre v. Cotton, 134 Ga. 316, 67 S. E- 876.
Requirements of Voters Strictly Construed. — In a speciai
election called by the ordinary, to submit to the voters of
a school district the question of a special tax for educational
purposes, the notice of the election must be given in strict
conformity with the code section, and a failure to post the
notices as therein required vitiates the election. Roberts
v. Murphy, 144 Ga. 177, 86 S. E- 545.
Notices Not Signed. — The fact that the notices mentioned
in this section were not signed did not render them inef-
fectual or illegal. Mabry v. Fuller. 133 Ga. 831, 67 S.
E. 91.
Petitions Signed by Attorney. — The signature of one act-
ing as an attorney can not take the place of the signature
of the voters. DeLoach v. Newton, 134 Ga. 739, 68 S. E.
708.
Time of Election. -The time prescribed by this section,
is "not earlier than 20 days, nor longer than 60 days, after
the petition for such election is received" by the ordinary.
The time for holding such election is not within any given
time from the granting of the order calling the election.
Dobbs v. Hardin, 137 Ga. 191, 73 S. E. 582. Where the en-
try does not necessarily show the date of the receipt of the
petition, the burden is on the plaintiff of proving the elec-
tion was held less than 20 daggssgfj^ter receipt. Ray v.
Swain, 148 Ga. 203, 96 S. E- £09.
Parol Evidence AdnussibW^o^Show Wher.e Election Held.
Wilson v. Dunn, 143 Ga^n^ 85 f^fcE- l^g-
Oath — Necessity for Jurat. -^-It is not cause for an injunc-
tion against the collection of a local school tax author-
ized by an election that a jurat was not attached to the
form of oath taken bv the superintendents. Wilson v. Dunn.
143 Ga. 361, 85 S. E.|lW»
Combining Election*-n»Where *be" superintendents of elec-
tion combined the eBction on the question of local school
taxation with an election for trustees of the school district.
and one or more of th£ nianagers of the election were elected
as such trustees, sucn\ election was irregular, but it will
not ipso facto invalidates the election as to the question of
taxation in the school o^strict. After the lapse of four
years, during which time the complainants have remained
silent and paid their taxes in support of the school, such
election can not be thus attacked. Wilson v. Dunn, 143
Ga. 361, 85 S. E. 198.
Estoppel. — No estoppel was raised as against any tax-
3]
§ 1551(134)
LOCAL TAXATION FOR SCHOOLS
§ 1551(140)
payer to test the validity of the division of the county into
school districts and the levy of the tax by virtue of an
election held in any district not properly divided. Grier v.
Loyless, 143 Ga. 428, 85 S. E. 323.
Injunction is an available remedy to owners of property
in a taxing district, to stay the collection of taxes at-
tempted to he collected by virtue of the authority of a void
election. Roberts v. Murphy, 144 Ga. 177, 86 S. E. 5"4o
Or of creation by no election at all. Lansdell v. King, 134
Ga. 536, 6S S. E. 102.
The burden of proving that the requisite one-fourth of
the qualified voters did not petition is on the plaintiff. Ray
v. Swain, 148 Ga. 203, 96 S. E. 209.
§ 1551(134). Local tax election for municipali-
ties.— Anj' municipality authorized by law to es-
tablish and maintain a system of public schools
by local taxation, in whole or in part, and which
is not now specifically authorized to hold an elec-
tion on the question of local taxation for school
purposes, shall have the right to submit the ques-
tion of local tax for public schools to the qualified
voters of the municipality. Upon petition of one-
fourth of the qualified voters of such municipality,
the municipal authorities shall order an election to
be held not earlier than forty days after receiving
such petition. Notice of such election shall be
published in a newspaper in the municipality at
least once a week for two weeks before the elec-
tion, or if there be no such newspaper, then notice
of such election shall be posted in at least three
conspicuous places within the municipality ten
days prior to the election. Those favoring local
taxation for public schools shall have written or
printed on their ballots "For local taxation for
public schools," and those opposed shall have
written or printed on their ballots "Against local
taxation for public schools." The returns of such
election shall be made and the result declared, as
prescribed for other elections in and for the mu-
nicipality. Two-thirds of those voting shall be
necessary to carry the election for local taxation.
An election for the purpose herein named shall
not be held oftencr than once every twelve
months. Acts 1919, pp. 288, 339.
A provision of the Act of 1910, pp. 26. 31 was similar to
this section.
Machinery. — This section simply furnishes the machinery
for an election where a municipal charter authorizes the
support of public schools in whole or in part by local tax-
ation, but omits to provide for the submission of the ques-
tion of taxation to a vote of the citizens. Dooly v. Fair-
mount, Mr, Ga. 689. 92 S. E. 209.
Sufficiency of Notice and Resolution. An election will
!>'• held void where (In- resolution of the municipality was
too indefinite as to the amount and rate of tax. and the
notice of the election was not in compliance with this sec-
tion. Dooly v. Fairmonnt, 146 Ga. 6S9, 92 S. E. 209.
§ 1551(135). Election to repeal. — An election
For repealing the local tax law provided for in
this Article when the same has been established
for over three years shall be called as in the first
instance. And if abolished by vote under similar
regulations as in first instance, no new election
for recreating same shall be called within one
year. If not abolished by vote, no election For
the same purpose shall be called within one year;
provided, that in the event such election is Favor-
able to the repealing of the local tax ;i- aforesaid,
the tlnn existing board of trustees of such dis-
trict or county -hall be empowered, authorized
and directed to continue to levy and collect tax
in such district or county to meet all of the then
ting legal obligations and the indebtedness ^i
such district and county to pay ofl the same.
Acts 1919, pp. 288, 339.
This section is similar to § 1536 of the Cede of 1910.
In General. — Properly construed, this section reflects the
legislative design that local application of the law could be
repealed in the district, if, at an election called after the
law had been in effect in such district three years, two-
thirds of those voting at the election should favor the re-
peal. It does not contemplate a repeal by the result of an
election called "to pass upon the question of local tax il
for schools" in the district, at which sixty votes were cast
"fir local taxation for schools" in the district, and thirty -
four votes were cast against it. Connally v. Morrison, 140
Ga. 492, 79 S. E. 119.
The title to public-school money paid into the hands of
trustees of a school district while local taxation for sci 1
purposes was in force is unaffected by the fact that the
local -tax law was thereafter repealed or abolished. Taylor
v. Matthews, 10 Ga. App. 852. 75 S. E. 166.
§ 1551(136). Election for additional tax levy. —
Whenever the voters in a county, municipality,
school district, or in an independent local system,
desire to hold an election in pursuance of para-
graph 1, section 4. article 8 of the Constitution of
the State of Georgia, to determine whether a levy
for public school taxes shall be made additional
to the levy of the maximum tax of five (5)
mills on the dollar allowed by said Constitutional
provision to be made on the recommendation of
Boards of Education without an election, such elec-
tion shall be called held, and the result declared
for counties in the manner prescribed in section
1551(131) and for school districts and independ-
ent local systems in the manner prescribed in
section 1551(133) and for municipalities in the
manner prescribed in section 1551(134). In the
call for said election the additional tax proposed
to be levied shall be specified; and successive
elections may be held until the additional maxi-
mum tax of five (5) mills on the dollar shall be
levied as permitted by said Constitutional provi-
sion. Acts 1022. p. i":;.
§ 1551(137). Levy of tax.— If the election is
carried for the levy of such additional taxe< for
the county, such additional tax shall be levied in
the manner specified in section 1551(120). Acts
1922. p. 154.
§ 1551(138). Election to repeal. — An election
for repealing the additional tax levied in pursu-
ance of an election held as above may be had un-
der the conditions prescribed by and in conform-
ity with section 1551(135). Acts 1922. p. 154.
§ 1551(139). Local school systems. — Authority
is given by the constitution to municipalities to es-
tablish and maintain public or common schools
in their respective limits by local taxation. It is
not in accordance with the laws oi this State to
incorporate a school district and mark off a town
inside of it. the town to exercise all the municipal
functions and the school district none. It shall
not be legal to establish the form of a municipal
corporation in a rural district with practically no
other powers nor purposes than the local control
and management i^\ the schools i^i that territory.
Acts L919, pp. 888,
Editor's Note. Thil section se< IS to I the
ruling of Vaughn v. Simmons, 139 < v E 1004
Hl.ikely. 143 Ga, 117, I S. E. 431.
§ 1551(140). School systems in cities and towns.
— Nothing in this chapter shall be so construed
as to prevent any city with a population greater
than two thousand inhabitant . or any county or
town under the authority of the General As-
sembly i^\ this State, from organizing a public
§ 1551(141)
LOCAL TAXATION FOR SCHOOLS
§ 1551(142)
school system independent of this system, or to
prevent said organization from drawing its pro
rata share of all educational funds raised by the
State; provided, the chief executive officer of such
independent organization shall make the same
regular reports to the State School Superin-
tendent as are required from County Superin-
tendents by this Article. Nothing contained in
this Article shall be construed to annul or repeal
any local law now of force in any city or county
in this State providing for the organization and
maintenance of the common or public schools in
such city or county. Acts 1919, pp. 288, 340.
A city superintendent is an officer of the city board of
education, but he is not such a county officer as the law
requires to be elected by the people, and whose eligibility
is fixed by § 258. Identity or similarity of name is not con-
clusive as to whether the office is identical with that pro-
vided by general law, but reference will be had to the du-
ties required of such an officer. Richter v. Board, 149 Ga.
32, 99 S. E- 28.
§ 1551(141). Trustees and Secretary; powers
and duties. — In those districts which levy a local
tax for educational purposes, the board of trustees
shall make all rules and regulations to govern the
schools of the districts, and build and equip
schoolhouses under the approval of the county
board of education. They shall have the right and
power to use the schoolhouses and school prop-
erties in the district or permit the same to be
used for educational purposes provided, the use of
the schoolhouses and school properties in no
way conflicts with the public school or schools in
the district. They shall have the right to fix the
rate of tuition for non resident pupils, and to fix
the salaries of the teachers. They shall receive
from the county board of education the share of
public-school funds apportioned to the district by
the county board of education. They shall deter-
mine the amount necessary to be raised by local
tax on all the property of the district. The sec-
retary of the board of trustees of said district with
the aid of the county school commissioner of said
county, shall ascertain from the tax returns made
to the tax receiver, and from the tax (returns)
made to the comptroller general, the total value of
all the property in said district subject to taxation
for county purposes and a regular digest of all such
property in said school district shall be made by
said secretary in a book furnished by the board
of trustees and kept for that purpose. At or be-
fore the time of fixing the rate of taxation for
said county, the secretary of each local board of
trustees, with the aid of the county school-com-
missioner, shall levy such rate on the property
thus found as will raise the total amount to be
collected; provided, that such rate shall not ex-
ceed one half of one per cent, the county school
commissioner of each county, at or before, the
time for fixing the rate of said county by the
ordinary thereof, or the county board of com-
missioners, as the case may be, shall certify to
the said ordinary, or said board of commissioners,
as the case may be, and to the Comptroller-Gen-
eral of the State the rate of taxation fixed for
each school district in the county, and said taxing
authority of said county shall levy such special tax
at the same time and in the same manner as is now
prescribed for the levying taxes for county pur-
poses. A copy of the special tax digest of said
local tax district shall be furnished by the sec-
retary of the local board of trustees to the tax
collector of the county. Acts 1919, pp. 288, 341;
1925, pp. 87, 99.
Editor's Note. — This section is in the exact language as
found in the Act of 1925, page 87. This act, however, pur-
ported to amend § 1537 of the Code of 1910 as explained in
the editor's note under § 1432.
Section 1537 of the Code of 1910 was presumably super-
seded by the Act of 1919, § 129, which was in the exact
language of § 1537 with the exception of two clerical er-
rors, each being an omission of a word. This section is
substituted for the section of the Act of 1919 mentioned
above rather than § 1537 for the reason explained under
§ 1432.
The Act of 1925 amends this section by inserting the sec-
ond sentence. This amendment probably annuls the deci-
sion in Claxton v. Stanford, 160 Ga. 752, 128 S. E. 887, to
the effect that when the local board of trustees allowed a
school teacher to continue his school in the school build-
ing after the regular term as provided by law had ended
by charging a matriculation fee to defray expenses, such
extended school should be considered a public school, and
the fee illegal.
Powers of Trustees. — The powers of the trustees of local
school districts which do not. levy a tax for educational
purposes are defined in § 1551 (129) and the powers of the
trustees of such districts as levy a tax for such purposes
are defined in this section. Baggerly v. Bainbridge State
Bank, 160 Ga. 556, 561, 128 S. E. 766.
Same — To Borrow Money. — There is no provision of law
authorizing either class of such trustees to borrow money
with which to pay the operating expenses of schools in their
respective districts. Board v. Fudge, 4 Ga. App. 637 (3),
62 S. E. 154. This being so, no action would lie upon notes
given by trustees of a local school district to a bank, for
money borrowed to maintain and operate the school in said
district. Baggerly v. Bainbridge State Bank, 160 Ga. 556,
561, 128 S. E. 766. But see § 1551 (102) as to power of board
to borrow money.
The probable reason for allowing the trustees to fix the
salaries of teachers was to give the taxpayers of the dis-
trict some control over the expenditure of funds raised by
local taxation. Orr v. Riley, 160 Ga. 480, 128 S. E. 669.
Power to Employ Teachers. — The power to fix the sala-
ries of teachers given by this section does not include the
power to employ teachers and to make contracts with them.
Orr v. Riley, 160 Ga. 480, 485, 128 S. E. 669, reversing Orr
v. Riley, 33 Ga. App. 472, 127 S. E. 236. See editor's note
under § 1551 (89).
Levying Rates a Ministerial Act. — In levying the rate
the secretary and the cotmty school commissioner perform
merely the ministerial act of ascertaining, by mathematical
calculation, what rate of taxation is required to be levied
on the value of the property in the district in order to raise
the amount fixed by the trustees. The mere fact that the
other members of the board of trustees take part in ascer-
taining or levying such rate will not render the tax ille-
gal. Dobbs v. Hardin, 137 Ga. 191, 73 S. E. 582.
Fees for Nonresidents. — The trustees may either contract
with the trustees of an adjoining school district for the
payment of the tuition of nonresident pupils to themselves,
or agree to pay to the trustees of an adjoining school dis-
trict, whether in the same or in an adjoining county. Tay-
lor v. Matthews, 10 Ga. App. 852, 75 S. E. 166.
Compensation of Tax Receiver. — The provision for paying
commissions to the county tax-collector and receiver for
services rendered in connection with State and county tax,
as provided in §§ 1234 and 1202 of the Civil Code, that the
tax-receiver shall receive the same compensation as the
tax-collector for such services, does not embrace a provi-
sion for paying the receiver commissions for any services
in connection with the levy of the county-wide tax for
school purposes, raised under the provisions of our code of
school laws. Hurst v. Board, 157 Ga. 648, 122 S. E- 45;
Board v. Drake, 157 Ga. 8, 121 S. E- 645.
§ 1551(142). Tax collector, duties of.— It shall
be the duty of the tax collector to compute and
collect said taxes, keeping the same separate by
school districts from the county and State funds,
and monthly turn same over to the secretary of
such local school districts, as well as tax received
for said district from railroads and other cor-
porations that make their returns to the Comp-
troller-General taking the receipt for the same
upon order from the County School Superin-
tendent, and said tax collector shall receive as
325 ]
§ 1551(143)
LOCAL TAXATION FOR SCHOOLS
§ 1551(149)
compensation thereof two and one-half per cent
of the amount collected up to eighteen thousand
($18,000.00) dollars and one and one-fourth per
cent on any additional amount collected. Acts
1919, pp. 288, 341.
This section is similar to § 1538 of the Code of 1910.
§ 1551(143). Tax returns of citizens.— In any
case in which it is impossible to determine from
tax returns made to the tax receiver of the county
the value of the property of any citizen situated
in any school district and subject to taxation in
said district, the Secretary of the Board of Trus-
tees shall issue a summons to said tax payer re-
quiring him to make returns within five days to
said secretary of his property situated in said dis-
trict and subject to taxation for school purposes.
Should said return be unsatisfactory to said sec-
retary, he shall reject the same and submit said
returns to arbitration as is now provided by law
for such cases when returns are rejected by tax
receivers. Acts 1919, pp. 288, 342.
As to arbitration, see §§ 1098, 1116 (4).
This section is similar to § 1539 of the Code of 1910.
§ 1551(144). Corporate property subjected to
taxation. — All property, both real and personal
including franchises belonging to railroads, tele-
graph and telephone companies, and to all other
corporations which are now required to make
their returns to the Comptroller-General of this
State, which is in the taxable limit of any school
district shall be, and the same is hereby made sub-
ject to taxation by said school districts as fully
and completely as is the property of the other
corporations within such taxable limits. Acts
1919, pp. 288, 342.
As to corporations required to make returns, see §§ 987-
993. As to railroad report to comptroller, see § 1036.
The tax authorized under this section is a county tax
within meaning of § 1041. Central, etc., R. Co. v. Wright,
148 Ga. 86, 95 S. E. 963.
This section is similar to § 1540 of the Code of 1910.
§ 1551(145). Returns of corporate property and
distribution for taxation. — It is the duty of every
such corporation in this State, in addition to the
facts now required to be performed in their returns
to the Comptroller-General to also show in said re-
turns the value of such corporation's property in
each of said school districts through which it runs.
And for the purpose of enabling such corporation
to show in said returns the value of its property
in such school districts, it is hereby made the
duty of the County Superintendent of Schools of
each county to furnish on or before January 1,
1907, to each such corporation, information as to
the boundaries of each school district in which
such corporation may have property such as will
enable such corporation to determine the amount
of its property in such district, and he shall also
furnish similar information whenever the bound-
aries of any school district may be changed.
The rolling-stock, franchises and other personal
property of said corporations shall be distributed
to said school districts on the same basis that roll-
ing-stock, franchises and other personal prop-
erty are distributed to counties and municipalities
under the law; that is, at the value of the prop-
erty located in the particular district is to the
whole located property, real and personal of said
corporation such shall be the amount of rolling-
stock, franchises, and other personal property to
be distributed for taxing purposes to each school
district. Acts 1919, pp. 288, 342.
As to assessment of rolling stock, see § 874.
This section is similar to § 1541 of the Code of 1910.
§ 1551(146). Other provisions made applicable.
— All of the other provisions of Article 7, Sections
1036, 1037, 1038, 1039, 1040, 1041, so far as they
can be applied are applicable to the assessment
and collection of taxes of all such companies and
corporations which are now required by law to
make their returns to the Comptroller-General by
and for school districts in this State upon the
property and franchises of such companies located
in such school districts and upon the rolling-
stock, franchises and other personal property dis-
tributed under the provisions of this Article. The
Board of Education must exercise supervision
over the local tax as well as the other districts
under its jurisdiction and is authorized to distri-
bute and apportion the public or common school
fund to the different school districts of the county
either on the salary basis of the teachers, or else
according to enrollment or allowance, as may be
for the best interest of the district and county as
a whole. Acts 1919, pp. 288, 343.
This section is similar to § 1542 of the Code of 1910.
§ 1551(147). Secretary and treasurer, reports by,
and compensation of. — The Board of Trustees
ma)' have the right to pay the secretary and treas-
urer a commission on the amount of local tax col-
lector not to exceed two and one-half per cent,
but there shall be no commission allowed on
the amount received from the State. They shall
furnish quarterly to the County Board of Edu-
cation a statement showing all receipts, disburse-
ments and cash on hand. They shall also furnish
statement showing the school population, enroll-
ment, average attendance, course of study and
other data the County Board of Education may
require whenever called upon to do so. Acts
1919, pp. 288, 344.
This section is similar to § 1543 of the Code of 1910.
§ 1551(148). Bond of treasurer. — It shall be the
duty of the treasurer or the secretary and treas-
urer of any Board of Trustees of a public school
receiving money raised by local taxation for pub-
lic schools, to make a good and sufficient bond
for the faithful performance of his duties, pay-
able to the County Board of Education in a sum
not less than double the amount of money likely
to be received by him during his term of office,
the amount and sufficiency of said bond to be
judged by the County Board of Education, which
amount may be increased in the discretion of the
County Board of Education. Acts 1919, pp. 288,
344.
A provision of the Act of 1912, p. 183 was similar to this
section.
§ 1551(149). Failure to give bond. — In the event
the treasurer or secretary and treasurer as afore-
said, shall fail to make the bond as required in
Section 1551(148), then and in that event, any
money raised by local taxation for public schools
or otherwise, which under the laws should have
been paid over to the treasurer or the secretary
and treasurer, shall be paid over to the County
Board of Education to be by them paid out on the
orders of the Board of Trustees of such school
[ 326]
§ 1551(150) BUILDING SCHOOL HOUSES IN LOCAL TAX DISTRICTS § 1551(155)
district in the manner other moneys are paid out
by them. Acts 1919, pp. 288, 344.
A provision of the Acts of 1912, p. 183 was similar to this
section.
§ 1551(150). Method of disbursement. — The
treasurer or secretary and treasurer as aforesaid
shall not pay out any money as held in his hands,
except upon the order of the Board of Trustees,
signed by the president or chairman, of which he
is treasurer or secretary and treasurer. He shall
further in all cases take a receipt for all moneys
expended or paid out, which shall be attached to
the order for same, which when properly done,
shall constitute a proper voucher for the money
thus -paid out. Acts 1919, pp. 288, 344.
A provision of the Acts of 1912, p. 183 was similar to this
section.
§ 1551(151). Audit of books and accounts of
treasurer. — The treasurer or the secretary and
treasurer as aforesaid, shall keep an accurate ac-
count of all money received and paid out by him
in a substantially bound book, which, together
with all vouchers, shall be submitted once each
year to the County Superintendent of Schools to
be audited by the State Auditor when he shall
audit the County Superintendent's books, but the
County Board of Education may direct that any
other competent person audit these books. Acts
1919, pp. 288, 345.
A provision of the Acts of 1912, p. 183 was similar to this
jection.
§ 1551(152). Application of this law. — The pro-
visions of this law shall apply to all school dis-
tricts which have adopted or may adopt local
taxation for public schools under the district plan
is provided under this code. This law shall not
apply to any municipal system of schools in this
State. Acts 1919, pp. 288, 345.
A provision of the Acts of 1912, p. 183 was similar to this
iection.
§ 1551(153). Elections, how governed. — All
elections held under the provisions of this Ar-
:icle shall be governed as to registration and
qualification of voters as the general laws govern-
ng special elections provides. Acts 1919, pp. 288,
>45.
As to ascertainment of number of votes, see § 443.
This section is similar to § 1544 of the Code of 1910.
§ 1551(154). General school laws to be observed.
— While it is the purpose and spirit of this Arti-
:le to encourage individual action and local self-
ielp upon the part of the school districts, it is ex-
pressly understood that the general school laws
Df this State as administered by the County Board
}f Education shall be observed. Acts 1919, pp.
288, 345.
This section is similar to § 1544 of the Code of 1910.
In the absence of express legislation to the contrary, sound
public policy requires that the exercise by the board
>f trustees of a school district of its discretion as to the
:xpenditure of funds raised by taxes for educational pur-
>oses should not be interferred with or controlled, unless
.here is a manifest abuse of discretion, or an expenditure
)f the funds for some purpose wholly disconnected there-
from. Taylor v. Matthews, 10 Ga. App. 182, 75 S. E. 166.
ARTICLE 7.
Building School Houses in Local Tax Districts.
§ 1551(155). Election for bonds to build and
2quip school houses. — When one-fourth of the reg-
istered qualified voters of a school district, con-
[327 ]
solidated districts, or county, in which a local tax
is now, or may hereafter be levied for school
purposes, or of a district in a county now levying
a local tax, shall be filed with the Board of Trus-
tees or Board of Education or such a school dis-
trict, consolidated district, or county, a petition
asking for an election for the purpose of determin-
ing whether or not bonds shall be issued for the
purpose of building and equipping a school house
or houses for said school district, consolidated dis-
trict, or county, the required number of petitioners
to be determined by the said Board of Trustees, or
Board of Education, it shall be the duty of said
Board of Trustees, or Board of Education, to fix
the amount, denomination, rate of interest, and
dates when due, and call such election in terms of
law now provided for a county issue of bonds, ex-
cept as herein otherwise provided. The said Board
of Trustees, or Board of Education, in case the
election is for a bond issue, shall follow the law as
required of county authorities as embodied in Sec-
tion 440, et seq., in the issue thereof. Said Board of
Trustees, or Board of Education, may order such
election to be held on the school site, or other suit-
able place, in the school district, consolidated dis-
trict, or county, of which they shall give notice by
posting at three public places in said school dis-
trict consolidated district, or county, not less than
ten days previous to said election. None but reg-
istered qualified voters shall be permitted to vote
in said election. The Tax collector shall furnish a
certified list of registered voters in such school
district, consolidated district or county, to the
managers of the election ten (10) days before such
election is held. The ballots cast shall have written
or printed thereon: "For School House" or "Against
School House." The ballots cast and the voting
list shall be lodged with the Board of Trustees, or
Board of Education, who shall declare the result.
Said Board of Trustees, or Board of Education,
or a majority of them, shall be the election man-
agers and if for any reason they fail to act, any
three free holders of the school district, consoli-
dated district, or county, may qualify and act.
Said Board of Education shall have nothing to do
with the location of the school site in local dis-
tricts except on appeal. Acts 1919, pp. 288, 346;
1921, pp. 221, 223.
Editor's Note — List of Voters. — Before the amendment of
1921 this section required that when an election was to be
held for the issuance of bond, it should be the duty of the
ordinary to furnish a list of registered voters in the dis-
trict. It was his duty to make up this list from the list
made from the registrar's list in the clerk's office as pro-
vided in § 58 of this Code. It was held in Powell v. Dis-
trict, 26 Ga. App. 135, 105 S. E. 616, that for the ordinary
to make up this list from the voters book of the tax col-
lector rather than from this list, while irregular, would not
operate to vitiate an election where it does not appear
that the list as certified and furnished by proper authority
was in fact incorrect, nothing being shown to indicate that
the list was incorrect. Since the amendment, the list must
be furnished by the tax collector and it is to be presumed
that this list must also be taken from the registered voters
list in the clerk's office as provided by § 58.
Constitutionality.— This section, as amended by the Act
of 1921 (Ga. L. 1921, p. 221), is not in conflict with the
constitution, as amended by Act of 1919 (Ga. L. 1919, p.
66). Jennings v. New Bronwood School Dist., 156 Ga. 15,
118 S. E. 560.
A provision of the Acts of 1912, p. 176 was similar to this
section.
A school district created under this law is such a polit-
ical division of the state as contemplated by the constitu-
tion, § 6563, and therefore these provisions conferring power
to create bonded indebtedness to build school houses are
§ 1551(156)
BUILDING SCHOOL HOUSES IN LOCAL TAX DISTRICTS
§ 1551(157)
valid. Ty Ty Consol. School Dist. v. Colquitt Lumber Co.,
153 Ga. 426, 112 S. E- 561; Jennings v. New Bronwood School
Dist., 156 Ga. 15, 118 S. E- 560.
Section Addition to Act of 1912.— This section as pro-
vided in the Act of 1919 (Acts 1919, pp. 288-345), authorized
a school district in a county levying a local tax for school
purposes to call an election for issuance of bonds as pro-
vided in the act, and to that extent adds to the provisions
of the Act of 1912 (Acts 1912, p. 176), which authorized
elections of that character to be held only in school dis-
tricts that levied such local tax. Sheffield v. Patmos School
Dist., 157 Ga. 660, 122 S. E. 57. See also Lindsey v. Wall,
149 Ga. 617, 101 S. E- 537.
To What Districts Applicable. — By the provisions of this
act only those school districts are authorized to call such
elections which are (1) school districts "in which a local
tax is now or may hereafter be levied for school purposes,"
and (2) school districts "in a county now levying a local
tax." Sheffield v. Patmos School Dist., 157 Ga. 660, 122
S. E. 57.
Qualification for Voters. — To entitle a voter to vote, his
name must appear on the list of registered voters filed
by the county register with the clerk of the supreme court
of the county. Chapman v. Sumner Consol. School Dist.,
152 Ga. 450, 109 S. E. 129; S. C, 28 Ga. App. 152, 110 S.
E. 453.
While the appearance of the voter's name on the voter's
book of the tax collector of the county is prima facie evi-
dence that the voter took the oath prescribed by law, he
must legally have taken such oath, otherwise his voting is
illegal. Chapman v. Sumner Consol. School Dist., 152
Ga. 450, 109 S. E- 129; S. C, 28 Ga. App. 152, 110 S. E. 453.
Two-Thirds of Qualified Voters Defined. — Construing the
1918 amendment of the Constitution, which is § 6563, with
this section and § 442, the two- thirds of the qualified vot-
ers of the district required in favor of bonds need be only
that proportion of the qualified voters voting in the elec-
tion, provided that proportion is also a majority of the to-
tal registered voters. The petition was not defective in
this respect. Chapman v. Sumner Consol. School Dist.,
152 Ga. 450, 109 S. E. 129; S. C, 28 Ga. App. 152, 110 S.
E. 453.
Notice of Election. — The provision in this section, as to
ten days' notice, applied only when the proposed election
is to be held at some place other than the regular voting
or election precinct in the district, without such notice the
election must necessarily be held at the regular voting or
election precinct as required by § 441. Scott School Dist.
v. Carter, 28 Ga. App. 412, 111 S. E. 216.
The ten days' notice herein required is not the notice
required as a condition precedent to the holding of the
election, and therefore does not supersede the provision of
§ 440 as to thirty days' notice required for a county issue
of bonds, which, unless otherwise provided, is applicable to
elections held under this section. Chapman v. Sumner
Consol. School Dist., 152 Ga. 450, 109 S. E. 129; S. C, 28
Ga. App. 152, 110 S. E. 453.
Number of Trustees Required. — The board of trustees or
board of education declares the result of the election under
this section. By this provision a majority of the trustees
may hold the election. Stephens v. School Dist., 154 Ga.
275, 114 S. E. 197.
Forms of Ballots. — The election was not void because the
ballots had printed on them, "For Bonds" and "Against
Bonds." This section under which this election was held
provides that "the ballots shall have written or printed
thereon, 'For schoolhouse' or 'Against schoolhouse.' " The
public notice of the election provided that the voters should
vote "For schoolhouse bonds" and "Against schoolhouse
bonds;" and construing that notice and the form of the
ballots together, it is clear the voters fully understood that
they were voting for or against a schoolhouse. Stephens v.
School Dist., 154 Ga. 275, ,114 S. E. 197.
Who May Sign Notice to Solicitor under § 445. — The no-
tice required by § 445 was signed by two of the trustees
by their attorney; and this was a sufficient compliance
with the statute. Stephens v. School Dist., 154 Ga. 275
114 S. E. 197. See § 445.
Enjoining Levy of Tax by Citizen.— Where an election
held under this section to determine whether bonds should
be issued, resulted in favor of such issuance, and the bonds
were duly validated in accordance with the terms of §§
445 et seq., a citizen and taxpayer of the district who could
have made himself a party to the proceedings to validate
the bonds, but failed to do so, was concluded by the judg-
ment rendered, and could not thereafter enjoin the levy and
collection of a tax to pay the interest and principal of the
bonds, and their issuance and sale, on the ground that
there had never been legally levied, a local tax for school
purposes as provided by the Act of 1912. Whiddon v
Fletcher, 150 Ga. 39, 102 S. E. 350.
District May Sue or Be Sued. — This statute, in effect
makes school districts such subdivisions of the county and
the State that they may sue or be sued. Therefore this
ground of demurrer was properly overruled. Ty Ty Con-
solidated School District v. Colquitt Lumber Co., 153 Ga.
426, 112 S. E. 561; Jennings v. New Bronwood School Dist.,
156 Ga. 15, 118 S. E. 560.
§ 1551(156). Proceeds of bonds, how held and
used. — Should bonds be issued and sold, the pro-
ceeds shall be turned over to the Board of Trus-
tees or Board of Education, in trust for the pur-
pose of erecting a school building or buildings or
purchase buildings already erected which said
Board of Trustees or Board of Education may
deem suitable. Said Board of Trustees, or Board
of Education is authorized to remove, sell or
otherwise dispose of old buildings, or buildings
and grounds and select a new site and erect a new
building thereon, and add to the proceeds from the
sale of bonds any other proceeds which may come
from disposition of buildings or buildings and site,
or from donations or otherwise, all to be held in
trust to be used for the purpose aforesaid, and no
compensation shall be paid to said Board of Trus-
tees, or Board of Education, nor any member
thereof for services. Said Board of Education
shall have nothing to do with the location of the
school site in local districts except on appeal.
Acts 1919, pp. 288, 347; 1925, p. 251.
A provision of the Acts of 1912, p. 176 was similar to this
section.
Appeal from Local Board. — When properly construed, the
power granted by this section gives the county board of
education lawful authority to select the site and order the
erection of buildings thereon where there is an appeal from
the selection of the local board of trustees; and the county
board is not confined to the approval or disapproval of "the
site selected by the local board, but may reject that site
and select an entirely different site. McCulley v. McFar-
land, 155 Ga. 700, 118 S. E. 52.
Accordingly, in this case, the county board had the power
and authority to select a certain site; and after such se-
lection, under the facts of this case, compliance by the lo-
cal trustees with the judgment of the county board did not
constitute a violation of the injunction previously granted
against them. McCulley v. McFarland, 155 Ga. 700, 118
S. E. 52.
Same — Effect of Injunction against Local Trustees. — An
appeal being regular, the decision on appeal rendered by
the county board selecting the site was by due authority,
and conferred the right to locate the school on that site.
An injunction against the local trustees did not enjoin the
exercise of any such right. McCulley v. McFarland, 155
Ga. 700, 118 S. E- 52.
The court intimated that on the hearing of the original
injunction, which was against the local board, there may
have been facts authorizing injunction applicable to that
board which would not authorize it against the county
board, that the ownership by one of the local trustees of
the site selected was such a fact. McCulley v. McFar-
land,' 155 Ga. 700, 118 S. E. 52.
§ 1551(157). Bond election. Tax to provide
sinking fund for retirement of bonds.— -In all
counties of this State in which a local tax is now,
or may hereafter be levied for school purposes
throughout the entire county, or throughout the en-
tire county except that part embraced within the
incorporated limits of a municipality or municipali-
ties, when one-fourth of the registered qualified vo-
ters of such territory shall file with the Board of
Education of such county, a petition asking for an
election for the purpose of determining whether
or not bonds shall be issued for the purpose of
building and equipping a school house or school
houses for said County, or for the purpose of
purchasing sites and buildings to be used for such
purposes, or for the purpose of purchasing a site
and erecting school houses thereon, either one or
[328]
§ 1551(158)
HIGH SCHOOL BUILDINGS FOR JOINT USE
§ 1551(162)
all, the required number of petitioners to be de-
termined by said Board of Education, it shall be
the duty of said Board of Education to fix the
amount, denomination, rate of interest, and dates
when due, and call such election in terms of law
now provided or which may hereafter be pro-
vided for a county issue of bonds, except as
herein otherwise provided. Said Board of Edu-
cation shall order such election to be held at the
various polling places throughout the county or
throughout the territory to be affected of which
they shall give notice by publication thereof once
a week for four (4) weeks previous to said elec-
tion in the newspaper in which the legal advertise-
ments of said County are published. None -but
registered qualified voters residing within the ter-
ritory to be affected shall be permitted to vote in
said election. The Tax Collector shall furnish a
certified list of registered voters in such County,
or in the territory to be affected, to the managers
of the election ten days previous to said election,
and after the same has been purged by the Board
of Registrars as now provided by law in cases of
special elections. The ballots cast shall have
written or printed thereon "For School House
Bonds" and "Against School House Bonds." The
managers of the election including such clerks as
may be necessary, shall be appointed by the Ordi-
nary. The polls shall remain open during the
hours as now fixed by law for general elections,
except that in counties having a population of
100,000 or more, according to the last census, the
polls shall remain open from seven A. M. until
seven P. M. The returns of the election, includ-
ing all ballots cast, tally sheets, voters' lists, and
other papers relating to the election shall be made
to the Ordinary, who shall on the day following
said election consolidate the vote and declare the
result. In the event that two-thirds of the votes
cast at said election shall be in favor of "School
House Bonds" and such two-thirds is also a ma-
jority of the voters qualified to vote in said elec-
tion, then the bonds shall be issued and sold, un-
der all of the regulations now provided by law
for other county bonds; the proceeds shall be
turned over to the Board of Education in trust for
the purpose or purposes aforesaid. Said Board
shall be authorized to remove, sell, or otherwise
dispose of old building or buildings and grounds
and select new sites and erect new buildings
thereon, or to contract for and purchase site or
sites and buildings, and add the proceeds of the
sale of any such property to the proceeds from
the sale of the bonds, and all to be held in trust
for the purposes aforesaid, and no compensation
or commission shall be paid to said Board of
Education nor any member thereof for services
rendered in this respect.
The County Authorities, in levying and as-
sessing taxes for the purpose of paying the in-
terest and retiring and paying off of said bonds
shall, in the event that the entire county is not em-
braced within the area or territory in which said
election is held, levy and assess such taxes only
against the property located within the area or
territory within which said election is held. For
the purpose of taking care of and paying the prin-
cipal and interest of these bonds for the district,
consolidated district, or county, the Board of
and the Board of County Commissioners, or
Ordinary, as the case may be, shall levy upon the
property subjected to taxation in the school dis-
trict, consolidated district, or county, as the case
may be, such tax as may be necessary to provide
a sinking fund for the retirement of said bonds,
and for paying the principal thereof and the in-
terest thereon; this to be in addition to the gen-
eral tax for the maintenance of the schools of
said territory. Acts 1919, pp. 288, 347; 1921, pp.
221, 225; 1922, p. 152.
§ 1551(158). Polls open, when. — See ante, §
1551(157).
ARTICLE 8.
High School Buildings for Joint Use of Counties
and Municipalities.
§ 1551(159). Joint building and maintenance. —
Counties and municipalities located therein (hav-
ing independent school systems supported in
whole or in part by local taxation) may contract
with each other for the joint building and main-
tenance of high school buildings to be located
within such municipalities for the joint use of the
children living in such municipalities and those
living in the county outside of the limit of such
municipalities. Acts 1923, pp. 98, 99.
Editor's Note. — Where a municipality has a local school
created by local act, prior to this act, which fails to au-
thorize such municipalities to consolidate with county
schools, the city board was without authority to so con-
solidate, while the policy of the state has been to keep the
municipal and county systems separate, the Act of 1923,
this section et seq., provides that such systems may be
consolidated for the maintenance of high schools under its
provisions. See editor's note under § 1551 (96).
§ 1551(160). How contract for buildings en-
tered into. — The contract provided for in the pre-
ceding section shall be entered into, in the first
instance, by the city board of education and
county board of education, or by other authori-
ties by whatever name called, having charge of
the educational affairs of the city and county, re-
spectively, upon such terms and conditions as may
be agreed on, and shall then be approved and
confirmed by the mayor and council and board
of county commissioners, or other authorities by
whatever name called, having charge of the fiscal
affairs of the city and county, respectively. Acts
1923, pp. 98, 99.
§ 1551(161). Issuance of bonds; call of elec-
tion.— When such contract has been made and ap-
proved, as provided in the preceding sections, then
the authorities of the county and municipality hav-
ing charge of their fiscal affairs may issue bonds
for their proportion of the cost of such buildings,
as agreed on, in the manner provided by law for
the issuance of bonds by a county or municipal-
ity; and the call for election shall provide that
if the other contracting party shall fail to carry
an election for bonds, for the same purpose, the
election for bonds provided for in the call, even
if carried, shall not be effective and that all pre-
vious Acts in connection with the issuance of
said bonds shall, in such event, be void and of no
effect. Acts 1923, pp. 98, 99.
§ 1551(162). Levy of taxes to pay bonds, etc.
— When an election for such bonds has been car-
ried as provided by law, then the county and mu-
nicipal authorities ma}r thereafter each levy a tax
Trustees or Board of Education shall recommend | sufficient to pay the principal and interest of such
[329 ]
§ 1551(163)
COUNTY SUPERINTENDENT OF SCHOOLS
§ 1551(169)
bonds, issued by each party, and the cost of main-
tenance of such building, in addition to any other
taxes they are now authorized by law to levy.
Acts 1923, pp. 98, 100.
§ 1551(163). Provisions not exclusive. — The pro-
visions of this Act shall not be construed to be
the exclusive means for the building of high school
buildings but the provisions of this Act shall be
construed to be permissive and cumulative to
any other means now or hereafter provided by
law. Acts 1923, pp. 98, 100.
ARTICLE 9.
County Superintendent of Schools.
§ 1551(164). Election, term. — The office of.
County Superintendent of Education shall be
substituted for the office of County School Com-
missioner; provided, that the person now holding
the office of County School Commissioner shall
continue to serve as County Superintendent of
Schools during the remainder of the term for which
they were elected respectively. Acts 1919, pp.
288", 349.
Editor's Note. — It has been held in Orr v. Riley, 160 Ga.
480, 482, 128 S. E- 669, as explained in the editor's note
under § 1432, that only that part of the old school law was
repealed and superseded by this act which was in conflict
with it. By that decision it was held that where the old
law which was not repealed provided duties to be performed
by the county school commissioner, such duties should
now be performed by the county superintendent of educa-
tion by virtue of the substitution made by this section; and
therefore the superintendent should sign contracts as pro-
vided in § 1551 (94V2).
A provision of the Acts of 1911, pp. 94, 101 was similar to
this section.
§ 1551(165). Terms of county superintendents. —
The term of office of County Superintendent of
Schools in each and every county of the State of
Georgia shall begin with the first day of January,
1913, and terminate with the first day of January,
1917, and that said County Superintendent of
Schools shall be elected for a term of four years
as now provided by law at the same time and place
as State and county officers, provided, if there is
in this county one or more independent school
systems not under the supervision of the County
Superintendent, the voters of such independent
system or systems shall not vote in the election
for the County Superintendent. The term of of-
fice of all County Superintendents of Schools be-
ginning during the year 1912, shall continue until
the first day of January 1917, or until their suc-
cessors are elected and qualified as is now pro-
vided by law. Acts 1919, pp. 288, 349.
A provision of the Acts of 1912, p. 180 was similar to this
section.
Constitutionality raised but not decided. Clark v. Col-
quitt County, 158 Ga. 642, , 124 S. E- 40.
Bond Covered Extended Term. — The county board of edu-
cation could not decline to approve the bond on the ground
that the commission issued by the Governor to the county
school commissioner was expressly from May 7, 1912, to
May 7, 1916, when by this section the term of office of the
commissioner was extended to January 1, 1917. Such bond
would bind the securities thereon for any time after the
expiration of the four years until the principal's successor
was elected and qualified. Jones v. Mattox, 146 Ga. 629,
92 S. E. 202.
§ 1551(166). Vacancies; how filled. — In the case
of a vacancy by death, resignation or removal
from office, or from any cause whatever, in the
office of County Superintendent of Schools, in any
county in this State, the County Board of Edu-
cation shall elect a County Superintendent of
Schools for the unexpired term. Acts 1919, pp.
288, 350.
This section is similar to § 1493 of the Code of 1910.
§ 1551(167). Qualifications of county superin-
tendents.— Before any person shall be qualified or
eligible to the office of County Superintendent of
Schools, he shall have had at least three years'
practical experience in teaching, hold a first-grade
high school license, or in lieu thereof shall have
a diploma from a literary college or normal
school, or shall have had five years' experience in
the actual supervision of schools, or stand an ap-
proved examination before the State Board as to
his qualifications, be a person of good moral char-
acter, never convicted of any crime involving
moral turpitude. The County Superintendent
shall perform all the clerical duties which are
now required of the County School Commissioner.
Before being eligible to qualify for election, can-
didates for the position must file at the State De-
partment of Education a certificate as to qualifica-
tion under at least one of the four methods pre-
scribed by law. This certificate must be signed
by the president of the Board of Education. Acts
1919, pp. 288, 350.
As to superintendent as secretary of board, see § 1551 (87).
A provision of the Acts of 1911, pp. 94, 101 was similar to
this section.
Additional qualifications for a superintendent of schools
prescribed by this act are not applicable to a person so
elected prior to the passage of the act. Mattox v. Jones,
141 Ga. 649, 81 S. E. 861.
§ 1551(168). Bond.— "The County Superintend-
ent of Schools must give bond with an approved
surety company, payable to the County Board of
Education, the amount to be decided by the
Board. This bond must be filed with the Ordi-
nary, and a copy recorded on the Ordinary's rec-
ords; and it shall be the duty of said Ordinary to
send a certified copy of said Superintendent's
bond to the State Superintendent of Schools
which copy shall be recorded and kept on file at
the State Department of Education. Acts 1919,
pp. 288, 350. 1925, p. 250.
As to measures of damages on official bonds, see § 299.
This section is similar to § 1492 of the Code of 1910.
Duty to Approve Bond. — Where a person has been elected
to the position of county school superintendent, and the
Governor has duly issued a commission and forwarded the
same to the ordinary to be delivered to the person so elected
upon his giving bond and taking the oath as prescribed by
law, and the bond, conformably to this section, has been
executed, and the amount of the bond and the sufficiency
of the security has been approved by the board of educa-
tion, it is the duty of the latter to approve the bond.
Mattox v. Jones, 141 Ga. 649, 81 S. E. 861.
Mandamus to Compel Approval. — Where a board of edu-
cation refused to formally approve a bond given by a
school superintendent as required by this section, and an
application for a writ of mandamus to compel them to do
so was not filed until ten months after the beginning
of the term for which the applicant was elected, the de-
lay in filing the application will not justify the refusal of
the writ, where it appears that there was no one in office
discharging the duties of the same, and the applicant was
seeking to get his bond approved, but the board of edu-
cation so arbitrarily persisted in their refusal to approve
it. Mattox v. Jones, 141 Ga. 649, 81 S. E. 861.
Sureties on bond are not liable for money borrowed by
county board of education. Williams v. Board, 4 Ga. App.
637, 62 S. E. 154.
§ 1551(189). Compensation.— Each County
School Superintendent within the State of Geor-
gia shall receive a minimum salary of $450.00 per
annum, and an annual allowance of $150.00 for
the purpose of defraying the expenses of visiting
the schools within his county at least every sixty
(60) days, or a total of $600.00 which salary shall
[ 330]
§ 1551(193)
COUNTY SUPERINTENDENT OF SCHOOLS
§ 1551(178)
be paid out of the school funds of Georgia
monthly; and in addition thereto, the County
Board of Education shall allow such additional
compensation for the services to be rendered as
may be in their judgment proper and just. Acts
1919, pp. 288, 350.
A provision of the Acts of 1911, pp. 94, 103 was similar
to this section.
Mandamus to Enforce Payment. — Where a county board
of education, having wrongfully paid the salary incident
to the office of county superintendent of education to the
de facto officer, refuses payment to the de jure officer upon
the establishment of his right, a money judgment against
the board of education would be of no practical benefit to
such de jure officer, and mandamus would be proper rem-
edy. Mattox v. Board, 148 Ga. 577, 97 S. E- 532.
§ 1551(170). Oath. — Before entering upon the
discharge of his official duties the said Superin-
tendent shall take and subscribe to the same oath
required of the other officers of this State. Acts
1919, pp. 288, 351.
§ 1551(171). Removal from office; successor.
— The County School Superintendent may be re-
moved from office before the expiration of his
term by a majority vote of the Board of Educa-
tion for inefficiency, incapacity, neglect of duty or
malfeasance or corruption in office; provided, that
any Superintendent so removed shall have the
right of appeal from the action of the County
Board to the State School Superintendent, and
from the State School Superintendent to the State
Board of Education. Acts 1919, pp. 288, 351.
This section is similar to § 1492 of the Code of 1910.
§ 1551(172). Duties.— The County School Su-
perintendent shall constitute the medium of com-
munication between the State School Superin-
tendent and the subordinate school officers. He
shall be the agent of the County Board in pro-
curing such school furniture, apparatus, and edu-
cational requisites as they may order, and shall
see that none but the prescribed text-books are
used by the pupils; shall audit all accounts be-
fore an application is made to the County Board
for an order for payment; he shall procure a
book in which he shall keep a record of his official
acts, which, together with all the books, papers
and property appertaining to his office, he shall
turn over to his successor. It shall be his duty
to enforce all regulations, rules, and instructions
of the State Superintendent of Schools and of the
County Board of Education according to the laws
of the State and the rules and regulations made
by the said Board of Education that are not in
conflict with the State laws; and he shall, to-
gether with the State Supervisors, superintend
the county normals and institutes for the teach-
ers of his county, and shall visit every school,
both white and colored, within his school district
which receives State aid, at least once every sixty
(60) days and familiarize himself with the studies
taught in said schools, see what advancement is
being made by the pupils, advise with the teach-
ers and otherwise aid and assist in the advance-
ment of education. Acts 1919, pp. 288, 351.
This section is similar to § 1501 of the Code of 1910.
Proper Action to Enforce Performance of Duties. — Man-
damus is the proper remedy to enforce the performance
of duties by this section, and it is the exclusive remedy.
A suit at law will not lie. Ferguson v. Smith, 27 Ga.
App. 806, 110 S. E. 42.
§ 1551(173). Examination and suspension of
teachers. — He shall superintend examinations of
all teachers of his county as provided by law. He
[33
shall hereafter suspend any teacher under his su-
pervision for non-performance of duty, incompe-
tency, immorality or inefficiency, and for other
good and sufficient causes, from which decision
the teacher may appeal to the County Board of
Education, and either being dissatisfied with their
decision, they can appeal to the State Superin-
tendent or from there to the State Board of Edu-
cation, the decision of which shall be final. Acts
1919, pp. 288, 352.
As to right of teacher to appeal from his decision, see
§ 1551 (94). As to powers and duties of state board, see
§ 1551 (12).
A provision of the Acts of 1911, pp. 94, 102 was similar to
this section.
§ 1551(174). Seal to be placed upon teacher's
license. — County School Superintendents shail
place upon all teacher's licenses issued by them
the seal of the Board of Education of the county
for which they are Superintendents. Acts 191!',
pp. 288, 352.
This section is similar to § 1504 of the Code of 1910.
§ 1551(175). Office of superintendent in court
house. — The county authorities of the different
counties of this State shall furnish the County
School Superintendents thereof an office in the
court house; provided, there is sufficient room in
said court house after furnishing the county offi-
cers with offices as now provided by law. Acts
1919, pp. 288, 352.
This section is similar to § 1502 of the Code of 1910.
§ 1551(176). Who may administer oaths. — The
County School Superintendent and members of
the County Board of Education are authorized to
administer oaths necessary in transacting school
business or in conducting investigations before
the County Boards when sitting as judicial tribu-
nals for determining controversies arising under
school laws. Acts 1919, pp. 288, 352.
This section is similar to § 1518 of the Code of 1910.
§ 1551(177). Reports of county superintend-
ents.— It shall be the duty of the County School
Superintendent to make a report of the school
operations of the preceding year to the grand
jury, at the spring term of the court, and to place
his book before them for examination,; and in
making up the general presentments it shall be
the duty of the jury to take proper notice of the
matters thus brought to their attention. Acts
1919, pp. 288, 353.
As to other reports, see § 1551 (80).
This section is similar to § 1519 of the Code of 1910.
§ 1551(178). Examination and license of teach-
ers.— The County Superintendents shall examine
all applicants for license to teach in their respec-
tive counties, giving previous public notice of the
day upon which the examinations are to take
place, and said Superintendents shall be allowed
to employ such persons as they think proper to
assist in these examinations. Said examinations
shall be held throughout the State on days to be
fixed by the State School Superintendent, and on
questions prepared and sent out by him to the
County School Superintendents. The State
School Superintendent shall prepare and supply
the County School Superintendent with printed
instructions as to grading applicants by a uniform
grade, and shall fix the lowest standard for each
class of license. No applicants for teachers' li-
censes shall be examined on any other day than
the one above described except in cases where the
1]
§ 1551(179)
SPECIAL DAYS
§ 1551(185)
County Board of Education shall order a special
examination; no special examination shall be or-
dered by said Board expect for good and suffi-
cient reasons and to meet some special emergency.
In such cases the questions shall be prepared
by the County School Superintendent or by some
competent person under his authority, and their
contents shall not be made known to the appli-
cant or applicants until the examination actually
commences; said examination shall be conducted
under the same rules and regulations as are pro-
vided by law for other examinations, but the li-
censes granted shall be valid only until the next
examination ordered by the State School Super-
intendent. The County Board of Education shall
have power, if they deem best, to employ teach-
ers at a salary. Acts 1919, pp. 288, 353.
As to the power of the county board of education to em-
ploy teachers, see § 1551 (94^0 and note.
This section is similar to § 1494 of the Code of 1910.
§ 1551(179). Schools Locally Established and
Maintained. — It is not the intention of this law
to repeal or interfere with the laws which have
been enacted establishing local tax district schools,
municipal schools, or other schools already estab-
lished by law, except that no person shall be al-
lowed to teach in any school in the State of Geor-
gia receiving State aid without first standing an
examination and procuring a license as provided
by the State Board of Education and State Su-
perintendent; provided, they are hereby author-
ized and directed to prescribe and require a dif-
ferent examination of teachers who are engaged
in teaching primal grades only from that re-
quired of teachers of higher grades; provided,
nevertheless, that the State Board of Education
may, when the authorities in charge of any local
municipal schools are maintaining a sufficiently
high standard of examinations for its teachers,
delegate to the authorities of these systems the
*right to license teachers to teach in their respec-
tive systems, upon examinations to be provided
by such local authorities, reserving however to
the State Board of Education the right to revoke
this delegation of authority as to any local system
whenever it appears that the authorities of that
system have relaxed the standards or failed to
give examination. Nothing herein contained shall
be construed as affecting the right of the author-
ities of local municipal systems to prescribe the
course of study therein, or select text-books in
those schools where they are now allowed to do
so by law. Acts 1919, pp. 288, 354.
As to school systems in cities and towns, see § 1551 (140).
A provision of the Acts of 1911. pp. 94, 106 was similar to
this section.
§ 1551(180). Local county and municipal sys-
tems.— None of the provisions of this Article shall
apply to local county school systems which were
in existence at the time of the adoption of the
constitution of 1877. Nor shall any of the pro-
visions of this Article apply to the school system
of any municipality having a population of one
hundred thousand people or more. Acts 1919, pp.
288, 354.
As to constitutional provision, see § 6580.
A provision of the Acts of 1911, pp. 94, 107 was similar to
this section. ,
§ 1551(181). Grading of applicants. — It shall
be the duty of the County School Superintendent
to grade the applicants according to the instruc-
tions furnished them by the State School Super-
intendent, submitting his report and recommen-
dations thereon in writing to the County Board
of Education, who shall grant to the applicants
licenses of the first, second or third grade, to be
determined by the qualifications exhibited and the
standard attained; provided, they shall attain at
least the lowest grade mark fixed by the State
School Superintendent for each grade; and pro-
vided further, that each applicant submits with
his or her examination paper satisfactory evi-
dence in writing of good moral character. A li-
cense of the first grade shall continue in force for
three years, a license of the second grade for two
years, and a license of the third grade for one
year, which said licenses in any of the common
schools of the county where issued. Licenses to
be good in another county other than the one
in and for which they are issued, must be en-
dorsed by the County School Superintendent of
the county in which the applicant desires to teach.
Acts 1919, pp. 288, 354.
This section is similar to § 1498 of the Code of 1910.
§ 1551(182). Revocation of licenses.
The
County Superintendent shall have power, and it
shall be his duty, to revoke licenses granted by
him or his predecessors, for incompetency, im-
morality, cruelty to pupils, or neglect of his duties
and the revocation of the license of any teacher
shall terminate the connection of said teacher
with any school in which he may have been em-
ployed to teach; but any teacher so dismissed
shall have the right to appeal to the County Board
of Education whose decision shall be final. Acts
1919, pp. 288, 355. .
This section is similar to § 1498 of the Code of 1910.
§ 1551(183)'. Duties of teachers. — After legal
qualification through license or certificate, each
teacher shall keep an accurate account of the
number of pupils entering the school room and
the number of dajrs of actual attendance. For
this purpose the teacher shall be provided with a
register by the local school authorities. Each
teacher shall make reports and returns to the
County School Superintendent required by law,
and it shall not be legal to make the final pay-
ment to any teacher until complete reports and
returns have been made to the Superintendent
of Schools. Acts 1919, pp. 288, 356.
§ 1551(184). Vocational studies; certificates. —
In Vocational Agriculture, Trade and Industrial
and Home Economics Education, the certification
of teachers is authorized by the State Board of
Vocational Education. Acts 1919, pp. 288. 356.
ARTICLE 10.
Special Days.
§ 1551(185). Days to be observed. — The county
and local Boards of Education shall see that the
following days are observed either by holidays or
appropriate exercises and it shall be the duty of
the State Superintendent of Schools to arrange
programs for the proper observance of these oc-
casions, and of the Superintendent and teachers
to direct the attention of the pupils to these dates
and topics by practical exercises:
1. Thanksgiving Day, last Thursday in Novem-
ber.
2. Uncle Remus Day, December 9.
3. Lee's Birthday, January 19.
[ 332]
§ 1551(186)
HEALTH AND PRECAUTIONS AGAINST FIRE
§ 1551(192)
4. Georgia Day, February 12.
5. Washington's Birthday, February 22.
6. Arbor and Bird Day, first Friday in De-
cember.
7. Memorial Day, April 26. Acts 1919, pp.
288, 356.
This section is similar to §§ 1527-8 of the Code of 1910.
§ 1551(186). Temperance Day. — The fourth
Friday in March of each year, being the near-
est Friday to March 28th, the date upon which
prohibition went into effect, shall be designated
and known as Temperance Day in the public
schools of this State. On Temperance Day. at
least two hours shall be devoted in the public
schools of this State to a program, which shall be
educational in nature, teaching the good of tem-
perance and prohibition, and the evils of intem-
perance and disobedience to law. Acts 1922, p.
183.
ARTICLE 10A.
Health and Precautions against Fire.
SECTION 1.
Health Regulations.
§ 1551(187). Regulations by county boards. —
The county qnd municipal Boards of Health of
the several counties shall have full power and au-
thority to adopt, enact, establish, and maintain all
such rules and regulations, not inconsistent with
the laws and constitution of this State and of the
United States, as they may deem necessary and
proper for protecting the health of their respec-
tive counties or municipalities, and for preventing
the introduction, generation, and spread of infec-
tious and contagious diseases therein; provided
that such rules and regulations shall not apply to
any incorporated city or town of this State. Acts
1919, pp. 288, 356.
This section is similar to § 1670, as amended by the Acts
of 1914, pp. 124, 125.
§ 1551(188). Isolation and quarantine in in-
fectious diseases. — No parent or householder shall
permit infected persons (or persons exposed to
infection) clothing, bedding, furniture, school
books, library books, or other articles likely to
convey infection to be removed from the house
until properly disinfected, under the supervision
of the local board of health or its proper officer,
or where no board exists, by the attending phy-
sician, in the manner recommended by the State
Board of Health. The isolation of patients and
duration of quarantine in infectious diseases shall
be as follows:
Diphtheria or membranous croup: For the pa-
tient: Isolation for twenty-one (21) days from
persons and domestic animals, and disinfection of
premises. For persons associated with or in the
house with the patient; adults, quarantine until
after death or recovery of patient and disinfection
of premises; children: quarantine for seven (7)
days after disinfection of premises. Domestic
pets, particularly cats, are frequent carriers of
this infection. That the use of antitoxin lessens
the mortality, but does not attentuate the nerves,
so that the same length of quarantine should be
enforced whether antitoxins are or are not used.
Scarlet Fever (Scarletena, Scarlet Rash, Rose-
ola.) Isolation of patient and quarantine of chil-
dren associated with, or in the house with the
patient, for ten (10) days after complete desqua-
mation or scaling of patient and disinfection of
premises.
Small-pox: For the patient: Isolation until
after all crust or scales have fallen off, and the
disinfection of patient's body and the premises.
For exposed persons: quarantine for sixteen (16)
days from date of last exposure.
Cholera: For the patient: Isolation until after
complete recovery and disinfection of the prem-
ises. For exposed persons: quarantine for five
(5) days from date of last exposure.
Yellow Fever: Isolation in screened room (pro-
tected fire-place) until after complete recovery
and disinfection of premises.
Typhus Fever: For the patient: Isolation un-
til after complete recovery and disinfection of the
premises. For exposed persons: quarantine for
twenty-one (21) days from date of last exposure.
Acts 1919, pp. 288, 357.
SECTION 2.
Precautions against Fire.
§ 1551(189). Ample means of escape from fire
or stampedes required. — It shall be illegal for
any county superintendent, school treasurer, or
other disbursing officer, to pay out any money for
the maintenance of any public school while oper-
ated in a schoolhouse of two or more stories not
provided with ample means of escape from fire or
stampedes from other causes, as hereinafter pre-
scribed. Acts 1923, pp. 88, 89.
§ 1551(190). County school superintendent to
make inspection and report. — No county board
of education of this State shall pay out any funds
for maintenance of the public schools in their re-
spective counties until said board shall have re-
quired and caused the county school superintend-
ent to make an inspection of the school buildings
of said county and file his report of said inspec-
tions with the several county boards of education
that the requirements of this Act as to fire es-
capes and safety as prescribed herein have been
fully complied with. Provided, however, that in
incorporated towns and cities owning and main-
taining school buildings, said inspection and re-
port shall be made and filed by the president of
the board of education or chairman of the board
of trustees or other school authorities in said
towns or cities. Acts 1923, pp. 88, 89.
§ 1551(191). Minimum safety requirements. —
That minimum requirements for safety as required
in this bill shall consist of easy means of exit
from not less than two opposite sides of the school
building, and, further, that all hall doors shall
open outward, and where in cases of old build-
ings there is only one stairway, there must be pro-
vided before the school can be legally operated,
another stairway for exit on the opposite side of
the building, or a safe ladder securely fastened
to the building and extending from one or more
windows on the side of the building opposite the
stairway and reaching to within six feet of the
ground. Acts 1923, pp. 88, 89.
§ 1551(192). Defect in heating installation. — No
public moneys can be legally paid out for the op-
eration of a public school in a house' where the
stove pipe runs through the side of the building,
or through a window, or through the roof without
[ 333 ]
§ 1551(200)
VOCATIONAL EDUCATION
§ 1551(199)
being safely encased in a brick flue. Acts 1923,
pp. 88, 89.
ARTICLE 10B.
Compulsory School Attendance.
§ 1551(193). Duty of parent and guardian; en-
rollment and attendance of child; excuse of ab-
sences.— Every parent, guardian, or other person
having charge and control of a child between the
age of eight and fourteen years, who is not ex-
empted or excused as hereinafter provided, shall
cause the said child to be enrolled in and to at-
tend continuously for six months of each year a
public school of the district or of the city or town
in which the child resides; which period of at-
tendance shall commence at the beginning of the
first term of said school in the year. Such at-
tendance at a public school shall not be required
where the child attends for the same period some
other school giving instruction in the ordinary
branches of English education, or has completed
the seventh grade of school work as prescribed
by the State Board of Education, or where, for
good reasons, the sufficiency of which shall be
determined by the Board of Education of the
county or of the city or town in which the child
resides, the said board excuses temporarily the
child from such attendance, such boards being au-
thorized to take into consideration the seasons for
agricultural labor and the need for such labor, in
exercising their discretion as to the time for
which children in farming districts shall be ex-
cused, provided, that no guardian shall be com-
pelled to send such child or children to school
out of any other than the funds belonging to the
ward or wards. Temporary absence of any child
enrolled as a pupil may be excused by the prin-
cipal or teacher in charge of the school, because
of bad weather, sickness, death in the child's
family, or other reasonable cause. Acts 1919,
pp. 288, 358.
A provision of the Acts of 1916, p. 101 was similar to this
section.
As to authority to establish hospitals, see §§ 1633, 1646.
As to penalty for violation of this act, see § 702 (7), P. C.
§ 1551(194). Duties of board of education and
teachers. — It shall be the duty of the county and
municipal Boards of Education to investigate as
to the attendance and non-attendance of children
required by this Section to attend the schools un-
der their supervision, and it shall also be their
duty to institute or cause to be instituted prose-
cutions against persons violating this Section. It
shall be the duty of the principal or teacher in
charge of any public school, in which pupils be-
tween the ages of eight and fourteen years of
age are instructed, to keep an accurate record
of the attendance of such pupils, and at the end
of each month to make a written report of the
same to the Board of Education having super-
vision of the school, and to note therein ex-
cused absences and the reasons therefor. Acts
1919, pp. 288, 360.
§ 1551(195). Attendance officer. — Each county
and municipal Board of Education shall employ
an attendance officer whose duty it shall be to
report to the Board of Education failure of at-
tendance on the part of pupils between the ages
of eight and fourteen years. For this service
these officials shall be paid not less than one
dollar nor more than three dollars per day dur-
[33
ing the time emplo3',ed, and said payment shall
be paid, so far as possible, from the fines col-
lected. The balance due shall be paid from the
school funds of the county or local system. Any
Board or local school system . failing to comply
with this law for attendance officer shall not be
entitled to receive funds from the State Treas-
ury until it is shown that said attendance officer
has been appointed and has entered upon his du-
ties. Acts 1919, pp. 288, 360.
§ 1551(196). Fines and forfeitures a part of
school fund. — All fines imposed hereunder and all
sums required to be paid as penalties under bonds
given under this Section, shall, after payment of
the cost of prosecution and of recovery thereof,
be paid into the county treasury and become a
part of the school fund of the county. Acts 1919,
pp. 288, 360.
§ 1551(197). Publication of law.— It shall be
the duty of the Board of Education of each
county, at least four weeks before the first day
of January following the adoption of this Ar-
ticle, to cause this Article to be published in a
newspaper of the county, if there be one, and to
cause copies of this Article to be posted at the
court house of the county and at the public
schools thereof. Acts 1919, pp. 288, 361.
ARTICLE IOC.
Vocational Education.
§ 1551(198). Provisions of federal law ac-
cepted.— The State of Georgia accepts and does
hereby accept the provisions of an Act of the
Congress of the United States approved Feb-
ruary 23, 1917, the caption of which said Act
is as follows:
An Act to provide for the promotion of vo-
cational education; to provide for co-operation
with the States in the promotion of such edu-
cation in agriculture and the trades and indus-
tries; to provide for co-operation with the States
in the preparation of teachers of vocational sub-
jects; and to appropriate money and regulate its
expenditure, and for other purposes, and the
provisions of said Act as set forth in Sections
1, 2, 3, and 4 of said Act and the provisions there-
under and appropriations therefor to be used ac-
cording to and as provided in said Act. Acts 1919,
pp. 288, 361.
§ 1551(199). Membership of state board for
vocational education. — A State Board is hereby
created to be known as the State Board of Vo-
cational Education, consisting of seven mem-
bers, made up as follows:
The Chancellor of the University.
The State School Superintendent.
Three members from the State at large.
One of the members of said Board shall be
representative of the manufacturing and com-
mercial interest, one representative of the agri-
cultural interests and one representative of labor.
Two members from the Trustees of the district
agricultural and mechanical schools, and the same
is hereby created and said Board shall have all
necessary power to co-operate as herein pro-
vided with the Federal Board for vocational edu-
cation in the administration of the provisions of
this Act in said Act provided. The Chancellor of
the State University and the State School Super-
4]
§ 1551(170)
SCHOOL OF AGRICULTURE AND MECHANIC ARTS
§ 1552
intendent shall be ex-officio members of said
Board and the Chancellor of the University shall
be the chairman of the same, and the members of
said Board shall be appointed by the Governor
and shall hold office until their successors are
appointed and qualified. All vacancies in said
Board caused by death or resignation or expi-
ration of term of office shall be filled by appoint-
ment of the Governor to fill the unexpired term.
Two of the members of said Board shall be ap-
pointed for two years, for a term of office begin-
ning July 1, 1917, and three members shall be ap-
pointed for four years to hold office from July 1,
1917, and all subsequent appointments, except to
fill unexpired terms, shall be for four years. Acts
1919, pp. 288, 361.
§ 1551(200). Meetings, duties, and compensa-
tion of members. — The Board shall fix the time
and place of their meeting and shall meet at the
call of the chairman or upon the written call of
a majority of said members after five days' no-
tice in writing to all the members, and shall have
as pay for their services four dollars per day and
necessary expenses, said amounts to be paid out
of the Treasury upon the warrant of the Gov-
ernor. The State Board of Vocational Educa-
tion, in offsetting the Federal appropriation is di-
rected to take advantage of whatever appropria-
tions the State of Georgia makes to local schools,
municipal and- county, district agricultural school,
normal schools and the teacher training depart-
ment of the University of Georgia, in order to se-
cure these funds under the regulations provided
by the Federal Vocational Board and also take
State, and carry out the spirit and intent of said
Act of Congress in conformity to its provisions.
Acts 1919, pp. 288, 363.
§ 1551(204). Agriculture and home economics
teacher. — See ante, § 1551(116).
ARTICLE 10D.
Physical Education.
§ 1551(205). Course prescribed; manual. — The
Georgia State Board of Education shall prescribe
a course of study in physical education for all
common schools of the State, and shall fix the
time when said course shall go into effect. This
course shall occupy periods totaling not less than
thirty minutes each school day which shall be de-
voted to instruction in health and safety, to phys-
ical exercises and to recess play under proper su-
pervision.
A manual setting out the details of said course
of study shall be prepared by the State Superin-
tendent of Schools in co-operation with the State
Board of Health and State Board of Education
of Georgia, and such expert advisers as they may
choose.
Said manual when published shall be sent by
said State Board of Education to the teachers
of the common schools in the State of Georgia.
Acts 1920, p. 232.
§ 1551(206). Courses at normal schools. — The
curriculum of all State Normal Schools of Geor-
gia and of all other institutions in the State sup-
ported wholly or in part by public funds having
advantage, when permitted by the Federal Voca— I special courses adopted for the preparation of
tional Board, of any appropriations made by any
municipality or county of the State to any school
of vocational character. To make up any defi-
ciencies that may occur, said Board is empow-
ered to use each year so far as may be necessary,
an amount equal to one-half of the Federal appro-
priation from any funds not otherwise appropri-
ated in the State Treasury. So far as possible said
Vocational Board shall encourage municipal and
county educational boards to meet the conditions
and secure advantages of this Federal appropria-
tion. Acts 1919, pp. 288, 362.
§ 1551(201). Secretary and his duties. — The
Board shall appoint one of its members as Sec-
retary of said Board, and he shall keep written
minutes of the proceedings and he shall do and
perform such other and further duties as may
be required of him by the Board. Acts 1919, pp.
288, 363.
§ 1551(202). Custodian of funds.— The State
Treasurer is hereby made the custodian of any
and all moneys received by the State from the
National Government under this Act, and it shall
be his duty to collect said money and pay out the
same upon the order of said Board, evidenced by
its warrant, signed by the chairman thereof and
countersigned by its Secretary. Acts 1919, pp.
288, 363.
§ 1551(203). Representing the State.— The State
Board of Vocational Education shall have the
full power to represent the State in any and all
matters in reference to the expenditure, distribu-
tion and disbursements received from the United
States Government in said State and to appropri- '
ate and use said moneys in whatever way in their
discretion will best subserve the interests of the
teachers, shall contain one or more courses in
physical education and after the first day of July,
1921, each person graduating from a teachers'
course in any of these institutions shall have com-
pleted one or more courses in physical educa-
tion. Acts 1920, p 232.
§ 1551(207). Special teachers. — County Boards
of Education of cities and of graded common
school districts may employ supervision and spe-
cial teachers of physical education in the same
manner as other teachers are employed, provided
they possess such qualifications as the State
Board of Education may prescribe. Boards of
Education of two or more school districts, city,
graded school, or county, may jointly employ a
supervisor or special teacher of physical educa-
tion. Board of Education may allow the use of
school buildings or school grounds after the
regular school hours and during vacation as
community centers for the promotion of play and
other healthful forms of recreation, under such
rules and regulations as to them seem proper.
Acts 1920, p. 232.
ARTICLE ll.
School of Agriculture and Mechanic Arts.
§ 1552. School in each congressional district. —
The Governor is authorized to establish and cause
to be maintained in each congressional district of
the State an industrial and agricultural school in
accordance with the further provisions of this
Article. Said schools shall 'be branches of the State
College of Agriculture, a department of the Uni-
versity of Georgia. The general board of trustees
[335 ]
§ 1552(1)
SCHOOL OF AGRICULTURE AND MECHANIC ARTS
§ 1560
of the University shall exercise such supervision as
in their judgment may be necessary to secure unity
of plan and efficiency in said schools. Acts 1906,
p. 72.
As to powers of board of trustees, see § 1379.
Stand in Same Relation as University. — These branch
schools are made departments of the University of Georgia
and the University has the right to sue and be sued, and
it was the purpose of the legislature that they should stand
in the same relation to the state and to the public in this
respect as the University stood. First Dist. Agri., etc.,
School v. Reynolds, 11 Ga. App. 650, 75 S. F. 1060.
Not Exempt from Suit. — These schools are not such pub-
lic institutions of the state as would be exempt from suit
on contracts made by their trustees within the scope of
the authority delegated to them by the terms of this and
the following sections. First Dist. Agri., etc., School v.
Reynolds, 11 Ga. App. 650, 75 S. F. 1060.
Contract Made by Trustees Enforceable. — A contract
made by trustees for furniture for school is within the
scope of their authority, and is enforceable against the
school and the trustees thereof in this official capacity.
First Dist. Agri., etc., School v. Reynolds, 11 Ga. App.
650, 75 S. F. 1060.
§ 1552(1). Boundaries of Agricultural District
Schools. — The boundaries of said schools shall re-
main as now fixed by law, without future reference
to Congressional Districts. Acts 1911, pp. 160, 161.
§ 1553. Fund to establish and maintain. — All
fees received from the inspection of fertilizers, oils,
and all other inspection fees received by the De-
partment of Agriculture in this State, after the
present year, over the expenses of such inspection,
and after any portion of sajd fund otherwise ap-
propriated, shall be used as a fund for the purpose
of establishing and maintaining such schools, and,
as far as practicable, be equally divided between
such schools, and the Governor is authorized to
pay to the trustees of the schools, from time to time,
their respective portions of the fund.
Where funds arising partly from oil inspection fees, and
partly from private donations, had been turned over to
and were in the hands ot trustees and were deposited by
the treasurer of the board of trustees in his own name,
as such in a bank which was a state depository, and
which failed, this did not constitute such a debt due to
the state as created a lien in its favor by virtue of its
general sovereignty. Knight v. State, 137 Ga. 537, 73 S.
E. 825.
§ 1554. Trustees. — The Governor is authorized
and directed to appoint from each county in the
respective congressional districts one trustee for
school to be established in such district; such trus-
tee to hold office for the term of six years from
his appointment and until his successor is ap-
pointed; and the trustees so selected in each district
shall constitute a board of trustees for the school
in said district, with power to control the manage-
ment of said school, and make rules and regula-
tions for the same, subject to the provisions of
this Article.
§ 1555. Donations and locations. — The Gover-
nor shall be authorized to receive from any county,
or any of the citizens thereof, a donation of a tract
of land in suc.h county, not less than two hun-
dred acres, on which to locate a school for the
district in which such county is situated, together
with any additional donation in the way of build-
ings or money; and if there are two or more of-
fers of such donations, the Governor, with the aid
of the trustees of such school, shall select which
to accept, taking into consideration the title, value,
the centralness of location, accessibility and suit-
ableness in any respect for the purpose intended,
and upon the acceptance of any such donation, and
the execution of proper deeds vesting title in the
trustees, within a reasonable time, the school for
said district shall be established on the tract selec-
ted, with the right to select another locality should
such deeds not be made to the satisfaction of the
Governor. And if no such donation is made or per-
fected in any district within one year from Au-
gust 18th, 1906, the pro rata share of the fund go-
ing to said district shall go into and be prorated
in the regular common-school fund in that dis-
trict.
§ 1556. Support of students. — The principal of
said schools shall, under the direction of the trus-
tees, keep an account of all receipts from the sale
of the products of the farm or shops which are
not consumed in the school, and one half of the
receipts for each year shall be set aside as a fund
to pay the students. Each pupil, having per-
formed to the satisfaction of the principal his du-
ties for an entire school year, shall receive his
pro rata of the fund, the amount going to each
pupil not to exceed one hundred, dollars, and the
balance, if any, to be replaced in the general fund
of the school.
§ 1557. Course of studies. — The course of
studies in said schools shall be confined to the
elementary branches of an English education, and
practical treatises or lectures on agriculture in
all its branches, and the mechanic arts, and such
other studies as will enable students completing
the course to enter the Freshmen class of the
State College of Agriculture on certificate of the
principal.
§ 1558. The faculty.— The faculty of such
schools shall consist of the principal, who shall be
an intelligent farmer, one superintendent and in-
structor in farm-work, one intelligent mechanic
who shall direct and instruct in all mechanical
work in and out of the shops, one pratical in-
structor in care of stock and dairying, one in-
structor in English, and such other instructors
and assistants as the funds of the college may per-
mit. The trustees may dispense with and com-
bine the duties of any of the above, as necessity
may require, and it shall be the duty of the in-
structors in said schools to co-operate in conduct-
ing farmer's institutes and farm and stock dem-
onstrations in the several counties of their re-
spective districts.
§ 1559. Work of students. — After the first
buildings are erected, before the opening of such
schools, which shall be only such as are absolutely
necessary for temporary use, all work on, in, and
about the schools, or on the farm, or on or in the
barns and shops connected with the schools,
whether it be farming, building, care of stock, or
work of whatever kind, shall be performed ex-
clusively by the students, under such regulations
for the proper division and alternations in the
work as may be provided by the trustees.
§ 1560. Schools, when and how opened. — Tui-
tion in said schools shall be free, and the trus-
tees may limit the number of students, from time
to time, according to the capacity and means of
the institution, and shall make rules of admission
so as to equalize, as far as practicable, the privi-
J36
§ 1561
SCHOOL OF AGRICULTURE AND MECHANIC ARTS
§ 1562(4)
leges of the school among the counties according
to population. And the trustees may defer the
actual opening of the school until such time as
may 'be necessary to prepare reasonably proper
facilities and equipment for beginning the same,
in the meantime accumulating for said, purpose
the funds going to said school which may be re-
ceived from the rent of any portion of the prop-
erty; but it is made the duty of trustees to open
the school, even though it may have to be done
at first on a limited scale, as early as praticable,
and afterwards extend its operations as circum-
stances may permit; and the trustees are author-
ized to rent to the best advantage, from time to
time, any portion of the property not required for
the purposes of the school.
§ 1561. Appropriation for support of said
schools. — The sum of two thousand dollars, or so
much as may be necessary to carry out the pur-
poses of this Article, as set out in the next succeed-
ing section, is hereby appropriated to be paid an-
nually to each of the agricultural and industrial
schools established in each of the Congressional
districts of this State, for the maintenance, sup-
port, and equipment of said schools, in addition
to the revenues now provided by law for said
schools from the fees arising from the inspection
of fertilizers, of oils and from the inspection pre-
scribed by the' pure-food law. Acts 1909, p. 33;
§§ 1795, 1798, 1803, 1804.
As to oil inspectors and fees, see §§ 1800, 1804. As to
fertilizer inspection fees, see §§ 1793, 1798. As to expenses
of fertilizer inspection and disposition of inspection fees,
§ 1795.
§ 1562. Purpose to provide a maximum an-
nual revenue. — The purpose of this and the preced-
ing section is to provide a maximum annual rev-
enue of ten thousand dollars for each of said
schools and so much of the amount hereby ap-
propriated shall be paid to each of said schools an-
nually as will, when added to the inspection fees
aforesaid, make the total of ten thousand dollars,
which shall in no case be exceeded; and any sur-
plus remaining over in any year from the amount
hereby appropriated shall 'be covered into the
treasury of the State for general purpose.
§ 1562(1). Designation of schools. — The twelve
district schools of Agriculture and Mechanical Arts
now established by law under the Acts approved
August 18th, 1906, August 19th, 1911, and August
21st, 1917, shall hereafter be known and designated
as District Agricultural and Mechanical Schools,
prefixed in each case by the numeral of the Agri-
cultural District in which they are respectively lo-
cated. Acts 1918, p. 143, 144.
§ 1562(2). Arrangement of counties into dis-
tricts.— All the counties of the State shall be and
they are hereby regrouped into twelve (12) Agri-
cultural Districts, one around each of these ex-
isting schools, so as to place each school approxi-
mately as nearly central to its district as practic-
able, and that the arrangement of the counties in-
to such district shall be as follows:
First Agricultural District to be composed of
the counties of Burke, Jenkins. Bulloch, Emanuel,
Toombs, Tattnall, Candler, Evans. Screven, Ef-
fingham, Catham, Bryan. Liberty and Mcintosh.
Second Agricultural District to be composed, of
[ 33
the counties of Turner, Ben Hill, Tift, Worth,
Colquitt, Thomas, Mitchell, Grady, Decatur, Mil-
ler, Baker, Early, Calhoun and Dougherty.
Third Agricultural District to be composed of
the counties of Muscogee, Chattahoochee, Marion,
Schley, Taylor, Macon, Stewart, Webster, Sumter,
Dooly, Crisp, Lee, Terrell, Randolph, Quitman
and Clay
Fourth Agricultural District to be composed of
the counties of Harris, Talbot, Meriwether, Troup,
Heard, Coweta, Campbell, Douglas, and Carroll.
Fifth Agricultural District to be composed of
the counties of Fulton, DeKalb, Rockdale, New-
ton, Walton, Barrow, Gwinnett and Milton.
Sixth Agricultural District to be composed of
the counties of Fayette, Clayton, Henry, Spalding,
Butts, Pike, Monroe, Upson, Crawford and Bibb.
Seventh Agricultural District to be composed of
the counties of Haralson, Polk, Paulding, Cobb,
Cherokee, Bartow, Floyed, Chattooga, Gordon,
Pickens, Gilmer, Fannin, Murray, Whitefield,
Catoosa, Walker and Dade.
Eighth Agricultural District to be composed of
the counties of Jones, Jasper, Putnam, Mogan,
Greene, Oconee, Oglethorpe, Clarke, Madison and
Elbert.
Ninth Agricultural District to be composed of
the counties of Baldwin, Washington, Jefferson,
Franklin, Hart, Stephens, Habersham, White,.
Lumpkin, Dawson, Union, Towns and Rabun.
Tenth Agricultural District to be composed of
the counties of Baldwin, Washington, Jefferson,
Glascock, Hancock, Taliaferro, Warren, McDuffie,
Richmond, Columbia, Lincoln and Wilkes.
Eleventh Agricultural District to 'be composed of
the counties of Jeff Davis, Coffee, Berrien, Lown-
des, Clinch, Echols, Appling, Bacon, Brooks, Ir-
win, Ware, Wayne, Pierce, Charlton, Glynn and
Camden.
Twelfth Agricultural District to be composed of
the counties of Houston, Twiggs, Wilkenson,
Pulaski, Bleckley, Laurens, Johnson, Wilcox,
Dodge, Telfair, Wheeler, Montgomery and
Treutlen. Acts 1917, p. 191; 1918 p. 143, 144; 1919,
pp. 234, 235.
§ 1562(3). Appointment of Boards of Trustees.
— The Governor is authorized and directed to ap-
point a Board of Trustees for each school, consist-
ing of one trustee from each county, in the re-
spective Agricultural Districts above named, the
term of such trustees to be six years, but sub-
ject to removal by the Governor at any time. In
the making of the first appointments under this
Act the appointments shall be so arranged by the
Governor as that each Board of Trustees shall be
made up of groups, as nearly equal as practicable,
appointed for two, four and six years, respectively,
and thereafter all subsequent appointments shall
be either for the balance of an unexpired term in
case of a vacancy, or for the full term of six
years, in case of succession to a fully expired term,
as the case ma}^ be. Acts 1918, pp 143, 115.
§ 1562(4). Annual meetings of boards. — Each
Board of Trustees shall be required to hol'J its an-
nual meeting at the school, and any trustee who
fails to attend such annual meeting without being
excused 'by the Board, shall forthwith be removed
by the Governor. It shall be the duty of the chair-
§ 1562(5)
VOCATIONAL REHABILITATION
§ 1562(15)
man or acting chairman of the Board, within ten
d£}^s after such meeting, to file with the Governor
a list of all trustees who were absent and not ex-
cused at the meeting. Meetings of the Boards of
Trustees, other than the annual meetings, may
be held at any point in the district. Acts 1918, pp.
143, 146..
§ 1562(5). Committees of board — secretary and
expense fund. — Such Boards of Trustees through
their chairman shall have authority to appoint
from their body such committees as they may
deem, necessary to handle and manage the affairs
of the school in the intervals between the meet-
ings of the board, and shall have authority in their
discretion to employ one of their numbers as
secretary of the board at a salary of not over one
hundred dollars per annum, which shall cover and
include the expense of stationery, postage, etc.
Acts 1918, pp. 143, 146.
§ 1562(6). Trustees' expenses and pay per
diem. — For their attendance on each meeting of
the board or any committee, the trustees shall be
allowed their actual railroad expenses by the
nearest route and per diem of not over four dol-
lars per day, the same to be paid out of the funds
of the school. Acts 1918, pp. 134, 146.
§ 1562(7). Permanent standing committee;
duties and meetings — expenses. — The chairmen
of the twelve Boards of Trustees of these schools
shall constitute a permanent standing committee,
with right to elect their own chairman and secre-
tary and to fix their terms of office. The duties of
this standing committee shall be to supervise the
interests, and co-ordinate the work and methods of
these schools, and, to make such recommendations
from time to time to the Governor and Legislature
as the needs of this system of schools may, in their
judgment, call for. This committee shall meet at
the State capitol, and shall hold at least one and
not more than three meetings in any year. The
chairman of any school, if unable to attend in per-
son any meeting of this standing committee, may
designate a member of his Board of Trustees to at-
tend in his stead, and represent that school at the
meeting. The members of the standing committee,
or the alternate trustee representing any absent
member shall be allowed their actual expenses in-
curred by them in attending the meetings of the
committee. Acts 1918, pp. 143, 146.
§ 1562(8). Reports required. — Said trustees
shall file with the Governor a report to be trans-
mitted to the General Assembly, in which report
they shall state the amount received from all
sources and the amount paid out and the purpose
for which said amounts were paid. They shall re-
port the numbers in attendance and the number
and pay of all teachers. Acts 1918, p. 147.
§ 1562(9). School for negroes established. — The
Governor is hereby authorized to establish and
cause to be maintained in some county as herein-
after provided, a School for Agriculture and Me-
chanic Arts for the training of Negroes in this
State. Acts 1922, p. 175.
§ 1562(10). Trustees.— The Trustees of the
School authorized by this Act shall be seven in
number of which the Governor and the State
Superintendent of Schools shall be ex-officio
[ 33
members. The other five shall be appointed by
the Governor either from the County in which the
School is located or from the State at large, at
his discretion. In addition to the seven Trustees
mentioned, the board shall have the right to elect
two honorary trustees from within or without the
State for a term of five years. The five trustees
appointed by the Governor shall be appointed for
one, two, three, four and five years, respectively,
and their successors be appointed for a full term
of five years. The honorary trustees named by
the board shall be appointed for a like term of
office. Acts 1922, p. 175.
§ 1562(11). Donation of tract of land— offers.
— The Governor, together with the Attorney-
General and the State Superintendent of Schools,
shall be authorized to receive from any county or
any of the citizens thereof, a donation of a tract
of land in such county, in a quantity deemed by
them sufficient for the purpose on which to erect
the school together with any additional donation
in the way of buildings or money. If there are
two or more offers, the Governor, the Attorney-
General, and State Superintendent of Schools
shall select the location, taking into considera-
tion its centrality relative to the geographical
center of the State, its value and suitability for
the purposes, intended. Acts 1922, p. 175.
§ 1562(12). Sections applicable — appropriation
for maintenance discretionary. — All the provisions
of §§ 1562(1)-1562(8), shall apply to the school
established by this Act, in the same manner and
to the same extent as said Act provides for the
schools referred to in said Act except that it shall
be left to the discretion of the General Assembly
of Georgia, as to the amount of appropriation, if
any, for the maintenance of said school. Acts
1922, p. 175; 1923, p. 125.
ARTICLE HA.
Schools for Illiterate Adults.
§ 15612(13).; Schools authorized.— The County
Commissioners of this State, or the Ordinaries of
such counties as have no Commissioners, shall
have, and they are hereby given, authority in
their discretion to provide for the carrying on in
their respective counties of schools for instructing
adult illiterates in the elementary branches of an
English education only. Acts 1920, p. 249.
§ 1562(14). Expenses. — The expenses of maim
taining said schools, when they shall be estab-
lished in accordance with this Act, shall be paid
out of the county treasury and to that end the
said County Commissioners or Ordinaries are
hereby authorized and empowered to levy such
tax as may be necessary to pay said expenses
over and above the sums for which they are now
authorized to levy a tax. Acts 1920, p. 249.
ARTICLE 11B.
Vocational Rehabilitation.
§ 1562(15). Provision of Act of Congress ac-
cepted.— The State of Georgia does hereby ac-
cept the provision of the Act of Congress, en-
titled "An Act to provide for the promotion of
8]
§ 1562(16)
GEORGIA ILLITERACY COMMISSION
§ 1562(22)
vocational rehabilitation of persons disable in in-
dustry or otherwise and their return to civil
employments," approved June 2, 1920 (Public
236, '66th Congress), and will observe and comply
with all the requirements of such Act. Acts 1920,
pp. 279, 280.
§ 1562(16). Money for vocational rehabilita-
tion.— The State Treasurer is hereby designated
and appointed Custodian of all moneys received by
the State from appropriations made by the Con-
gress of the United State for the vocational re-
habilitation of persons disable in industry, or other-
wise, and is authorized to receive and provide for
the proper custody of the same and to make dis-
bursement therefrom upon the requisition of the
State Board for Vocational Education. Acts 1920
pp. 279, 280.
§ 1562(17). State Board— duties. — The Board
heretofore designated or created as the State Board
for Vocational Education to co-operate with the
Federal Board for Vocational Education in the
administration of the provisions of the Voca-
tional Education Act, approved February 23, 1917,
is hereby designated at the State Board for the
purpose of co-operating with the said Federal
Board in carrying- out the provisions and purposes
of said Federal Act providing for the vocational
rehabilitation of persons disabled in industry or
otherwise and - empowered and directed to co-
operate with said Federal Board in the admin-
istration of said Act of Congress; to administer
any legislation pursuant thereto enacted by the
State of Georgia; to prescribe and provide such
courses of vocational training as may be neces-
sary for the vocational rehabilitation of persons
disabled in industry or otherwise and their return
to civil employment; to provide for the supervi-
sion of such training, and to direct the disburse-
ment and administer the use of all funds provided
by the Federal Government of this State for the
vocational rehabilitation of such persons; and to
do all things necessary to insure the vocational
rehabilitation of persons within the State disable
in industry or otherwise. Acts 1920, pp. 279, 280.
§ 1562(18). Gifts and donations.— The State
Board for Vocational Education is hereby author-
ized and empowered to receive such gifts and
donations from either public or private sources
as may be offered unconditionally or under such
conditions related to the vocational rehabilitation
of persons disable in industry or otherwise as in
the judgment of the said State Board are proper
and consistent with the provisions of this Act.
All the monies received as gifts or donations shall
be deposited in the State Treasury and shall con-
stitute a permanent fund to be called the Special
Fund for the Vocational Rehabilitation of Dis-
able Persons, to be used by the said Board in
carrying out the provisions of this Act, or for pur-
poses related thereto. A full report of all gifts
and donations offered and accepted, together with
the names of the donors and the respective
amounts contributed by each, and all disburse-
ments therefrom shall be submitted annually to
the Governor of the State by said State Board.
Acts 1920, pp. 279, 281.
§ 1562(19). Annual appropriation. — There
shall be appropriated for the purpose of carrying
out the provisions of this Act a sum of money
available to each fiscal year not less than the
maximum sum which may be allotted to the
State under the provisions of the said Federal
Act, and that there is hereby appropriated for
such purposes out of the monies in the Treasury
not otherwise appropriated for the fiscal year end-
ing July 1, 1921, the sum of $2,353.29, or so much
of this sum as may be used. Acts 1920, pp. 279,
281.
ARTICLE UC.
Georgia Illiteracy Commission.
§ 1562(20). Creation of commission, members;
terms of office. — There is hereby created a com-
mission to be known as "The Georgia Illiteracy
Commission," which shall be composed of ten
persons, both men and women, including the
Governor, the State Superintendent of Schools,
who shall be ex-officio members thereof. Said
commissioners shall be appointed by the Governor
of the Commonwealth and shall be selected for
their fitness, ability, and experience in matters
educational, and their acquaintance with the con-
ditions of adult illiteracy in the State of Georgia
and its various communities. Four of said com-
missioners shall hold office for two years and four
for four years from the date of their first appoint-
ment by the Governor; after which all of said
commissions shall hold for a period of four years,
but the term of two of them shall expire bien-
nially. Any and all vacancies occurring in said
commission shall be filled for the unexpired term
by the Governor. Said Commissioners, or any of
them, may be removed at any time for cause. Acts
1919, p. 253.
§ 1562(21). Corporate powers — seal — officers
— bond. — The members of said commission and
their successors in office shall be and are hereby
constituted a body corporate with all the powers
necessary to carry into effect all the purposes of
this Act. Said commissioners, after their ap-
pointment and qualification, shall adopt a seal, and
organize by electing from their membership a
president, secretary and treasurer to serve for the
period of two years, or until their successors are
elected and qualified, but the same person may be
elected to serve both as secretary and treasurer of
the commission; but said secretary and treasurer,
whether or not the office be united in one person,
shall execute a bond to the Commonwealth of
Georgia for the faithful performance of the
trusts of their offices, for the proper handling and
accounting of all the properties, assets and monies
which may come into their hands by virtue of
their offices, and in such amount and such form
and with such sureties as the commission shall
approve. Said secretary or treasurer may at any
time be removed and a successor be appointed by
said commission in its discretion. Acts 1919, pp.
253, 254.
§ 1562(22). Meeting place, etc. — quorum. — Said
Commission may establish a permanent place for
its meetings and shall in such place have an of-
fice which shall be kept open at such regular
times as the commission may prescribe for the
transaction of its business, and a majority of said
[339 J
§ 1562(23)
STATE LIBRARY COMMISSION
§ 1565
commission shall constitute a quorum. Acts 1919,
pp. 253, 254.
§ 1562(23). Duties — reports — authority to use
funds, etc. — It shall be the duty of said commis-
sion and it shall have the power to make re-
searches, collect data and statistics, and procure
surveys of any and all communities, districts or
vicinities of the State, looking to the obtaining of
a more detailed, defined and particular knowledge
as to the true conditions of the State with regard
to its adult illiteracy, and report regularly the re-
sults of its labors to the General Assembly; and
to interest persons and institutions in the dispen-
sation of any and all funds and endowments of
whatsoever kind which will or may aid in the
elimination of the adult illiteracy of the State,
and to do or perform any other act which in their
discretion will contribute to the elimination of the
State's adult illiteracy by means of eduction, in-
struction and enlightment; and said commission
shall be empowered to receive, accept, hold, own,
distribute and expend, to the end of educating, in-
structing, enlightening and assisting in the edu-
cation, instruction and enlightenment of illiterate
persons in the State of Georgia, any and all funds
or other thing of value with which it may other-
wise receive; and in the expenditure and disburse-
ment thereof said commission shall be controlled
by such expedient and discreet regulations as it
may from time to time adopt; provided, however,
that any and all funds which may come to the
hands of said commission shall be expended in
keeping with the general purposes of this Act.
Acts 1919 pp. 253, 255.
§ 1562(24). Rules and regulations. — Said com-
mission shall adopt such rules and regulations as
may deem expedient to it for the carrying on of
its business in the manner which shall seem to it
most systematic and satisfactory. Acts 1919, pp.
253, 255.
§ 1562(25). No compensation for members— ex-
penses.— The members of this commission shall
receive no compensation for their services, but
they shall be reimbursed out of any funds which
shall come into the hands of the commission for
the use of said commission, for their actual ex-
penses incurred in the performance of their duties,
same to be paid monthly, upon vouchers duly ap-
proved by the commission, signed by the secre-
tary and countersigned by the president. Acts
1919, pp. 253, 255.
§ 1562(26). Funds of Council of Defense made
nucleus for fund. — The remainder of the funds
appropriated to the State Council of Defense and
unexpended is hereby made a nucleus for the il-
literacy fund. Acts 1919, pp. 253, 256.
ARTICLE 12.
State Library Commission.
§ 1563. State library commissioners. — The
Governor shall appoint four persons who with the
State Librarian shall constitute a State library
commission and no person shall be eligible to ap-
pointment on said commission who is interested
in any publication house or the sale of any
book or books, or agent for the same. The mem-
bers of said commission shall be appointed for a
[ 340
term of three years, and shall annually elect a
chairman and a secretary. Acts 1897, p. 93; Acts
1919 pp. 86, 89.
Editor's Note.— This section as amended by the act of
1919 (acts 1919, p. 85) provides that the governor shall ap-
point four persons who with the State Librarian shall con-
stitute the State Library Commission. As the act originally
stood no mention was made • of the State Librarian as a
member of the commission, the act simply providing that
the governor should appoint five persons who would con-
stitute the commission.
§ 1564. Duties and reports of commissioners —
travelling libraries — secretary. — The Commission
shall give advice and counsel to all libraries in the
State and to all communities which may propose
to establish them, as to the best means of es-
tablishing and administering such libraries, the
selection of books, cataloguing, and other details
in library management. The Commission may
also conduct a system of traveling libraries and
circulate such libraries within the State among
communities and institutions, free of cost except
for transportation. The Commission is authorized
to purchase and accept gifts of books, periodicals
and traveling libraries. The Commission may
also employ a trained paid secretary, not from
their own number, to carry on the work of the
Commission as herein outlined. The Commis-
sion may also send its members to aid in or-
ganizing new libraries or improving those already
established. The Commission shall make annual
reports to the Governor. Acts 1919, pp. 86, 88.
Editor's Note* — The amendment to this section in 1919 '
(acts 1919, p. 86) gave to the commission actual duties to
perform instead of acting merely in an advisory capacity,
the duties being to conduct traveling libraries, and to. ac-
cept gifts and purchase books and periodicals. By this
amendment they are also allowed a paid secretary, not to
be chosen from their own number.
§ 1565. No compensation for service. — No
member of this commission shall receive any com-
pensation for services and traveling expenses as
a member of this commission, except that the
secretary, in addition to the salary, shall receive
actual traveling expenses while engaged upon the
work of the commission. To enable the commis-
sion created by this law to properly discharge its
duties, the sum of $10,000.00 per annum is hereby
appropriated for the service of the secretary and
other legitimate expenses, to be paid by the
State Treasurer upon warrant based on vouchers
signed by the secretary and approved by the
chairman. Said secretary shall devote his or her
entire time to said office under the direction of the
commission. The commission shall be provided
with suitable quarters in the State Capitol. Pro-
vided that the provisions of this section shall not
become effective until January 1st, 1926. Acts 1919
pp. 86, 89; 1923, p. 50; 1924, p. 57.
Editor's Note. — This section has been amended three
times since it appeared in the Code of 1910. The acts of
1919 (acts 1919, p. 88) appropriated $6000. per annum to the
secretary to enable the commission to perform the duties
given it under § 1564 as amended by acts of 1919 (acts
1919, p. 87) and to pay the secretary a salary of $1500 per
annum. This amendment also provides that the commission
should have suitable quarters in the state capitol. The
act of 1923 (acts 1923, p. 57) changed the provision relat-
ing to the salary of the secretary in the act of 1919 by
striking out the clause relating thereto. As the section
now stands reference is made to the salary of the secre-
tary but the amount of it is not fixed nor .is any method
stated by which the amount is determined.
The act of 1924 (acts 1924, p. 50) increased the appropria-
tion from $6000 to $10000 per annum, this provision be*
coming effective January 1st, 1926.
1
§ 1566
POLICE AND SANITARY REGULATIONS
§ 1572
CHAPTER 5.
Public Libraries,
§ 1566. Public libraries, how maintained —
Any city in the State may, through it properly
constituted municipal authorities, raise by taxa-
tion, from year to year, and permanently appro-
priate money for the purpose of establishing or
erecting or maintaining a public library, or as-
sisting in maintaining a public library. Any such
sum or sums of money so appropriated shall
be expended by and under the direction of the
board of trustees of such public library elec-
ted by the city council of said city. Acts 1901. p.
53; 1904. p. 90.
As to restriction and limitation on purpose and amount
of taxation, see §§ 6561, 864.
§ 1567. Disbursements, how made. — In any
city in which an appropriation shall be made un-
der or by virtue of the authority conferred by this
Article, the money so appropriated shall be drawn
from the treasury of said city on the warrant of
said board of trustees of such public library
elected by the city council of said city, and shall
be paid out from time to time in the payment of
salaries, purchase of books, and other necessary
expenses of said librae, and an itemized state-
ment of the amounts so paid out shall be made
annually to the mayor of said city, and by him
submitted to the properly constitued authorities of
said city.
§ 1568. Donations. — Said board of trustees are
authorized to accept and receive donations, either
in money, land, or other property for the purpose
of erecting or assisting in the erection of suitable
buildings for the use of said public library, for
maintaining the same, or for assisting in maintain-
ing the same.
Donation Becomes Public Property. — A donation made
to the library trustees of a city and accepted by them be-
comes the public property of the municipality; and if the
trustees loan that money, and the borrowers execute a
note therefor, it is no defense to the note that the munici-
pality by ordinance gratuitously released the makers from
liability. Such release was void as being a donation and
a diversion of public property to private use. Tedder v.
Walker, 145 Ga. 768, 89 S. E. 840.
Trustees Making Personal Loan of Donation. — Where a
donation was made to a municipality for a library and the
trustees made a personal loan of it such loan being illegal
•the lenders are personally liable to the city for the money
and the successors of the trustees will not be permitted to
object to the bringing of the suit by the plaintiffs in their
individual names. Tedder v. Walker, 145 Ga. 768, 89 S. K
840.
§ 1569. Duties of board of trustees. — Said
board of trustees shall exercise a strict and rigid
supervision over said public library, and shall
pass all necessary rules and regulations for the
government and control of the same; shall elect
a librarian and, if necessary, an assistant librarian,
or designate some officer or officers to perform
the duties of librarian or assistant librarian, and
shall appoint and discharge the said officer or of-
ficers at pleasure.
§ 1570. Powers of the city. — The municipal
government of any such city shall have authoritv
to enter into a legal and binding agreement to
accept and receive any donation offered by any
person or persons on such terms as may be agreed
upon between said person or persons and said
municipal government, and such agreement so
made shall be legal and binding upon said munici-
pal government and its successors; and all agree-
ments by said municipal government of said city
to pay any sum or sums of money annually there-
after for the use of said public library shall be
legal and binding on the said city; and any ordi-
nance or ordinances carrying said agreement into
effect shall have the force and effect of law and
be binding on the said city during the time men-
tioned in said agreement and said ordinance.
§ 1570(1). Public libraries in certain counties. —
In all counties of the State of Georgia which ac-
cording to the census of 1920, had a population of
not less than twenty-four thousand five hundred
thirty people and not more than twenty-four thou-
sand five hundred fifty people, the Ordinary,
County Commissioner or otber officer having
charge of county affairs, shall be authorized to ap-
propriate such sum, not exceeding six hundred dol-
lars per annum, as said Ordinary or County Com-
missioner shall deem necessary for the support of
a public library in said county, said sum of money
being paid over to a public library to be maintained
by the county, or to be paid over to a corporation
operating a library to which the public of said
county have access. Acts 1925, p. 244.
TWELFTH TITLE.
Police and Sanitary Regulations.
CHAPTER 1.
Georgia State Sanitarium.
ARTICLE 1.
The Trustees.
§ 1571. (§ 1409.) Managed by ten trustees. —
The Georgia State Sanitarium at Midway, near
Milledgeville, is solely the property of the State,
and shall be under the management of nine trus-
tees, one of whom shall be a competent physician,
and no two of whom shall reside in the same
county. Acts 1873, p. 59; 1878-9, p. 70; 1889, p.
58; 1897, p. 109; Acts 1910, p. 39.
Editor's Note. — This section was amended by the act of
1916 (acts 1916, p. 39) which simply decreased the number
of trustees from ten to nine.
§ 1572. (§ 1410). Trustees, how appointed-
terms of office. — Said trustees are biennially ap-
pointed by the Governor, on the first Monday in
December, and in such a manner that three mem-
bers of the board of trustees shall hold office for
two years, and three members for four years, and
three members for six years, so that there may be
always six members of said board who are experi-
enced in the affairs of said Sanitarium. At the
expiration of said terms, their successors shall be
appointed for the term of six years. Acts 1910,
p. 40.
Editor's Note. — This section was amended by the act <•.'
1916 (acts 1916, p. 40). By its present provisions three
members are appointed for two years, three for four years,
and three for six years at the expiration of said terms their
successors shall be appointed for six years thus providing
that there shall always be on the board six men who are
experienced in such affairs instead of only one man who
has had such experience.
[ 341 ]
§ 1573
THE TRUSTEES
§ 1584
§ 1573. (§ 1411.) Authority of trustees.— They
have authority —
1. To prescribe all rules and regulations for
the management of the institution, not conflicting
with the law.
2. To appoint annually all the officers, point out
their duties, and fix their salaries. The salary of
said trustees shall not exceed one hundred and
fifty dollars each per annum, and actual railroad
fare going to and returning from Milledgeville.
3. To create such other offices, and select the
incumbents, if in their judgment such is necessary
to an efficient administration.
4. To remove from office, when the incumbents
fail to discharge well their duties, or are guilty ot
any immoral or unfaithful conduct, and cause to
be prosecuted any officer, or other person, who
shall assault any inmate of said institution, or use
toward such any other or greater violence than
the occasion may require.
5. To hold in trust for said sanitarium any
grant or devise of land, or bequest or donation of
money or other property, for the general use of
the institution, or the particular use defined.
6. To visit the institution monthly by at least
one of the board, semi-annually by a majority, and
annually by all of them, at such time as they may
agree upon.
7. To bring suit in their names for any claims
the institution might have, whether arising upon
contract or tort.
Paragraph (7) of this section does not authorize the trus-
tees to bring suits on tehalf of persons confined therein,
but only for claims which the institution has. La Grange -
Mills- v. Kener, 121 Ga. 429, 434, 49 S. E. 300.
§ 1574. (§ 1412.) Patients, how admitted and
discharged from. Sanitarium. — Lunatics, epilep-
tics, idiots, and demented inebriates shall be ad-
mitted to, and discharged from, the Sanitarium
under such rules and regulations as the trustees
shall prescribe. Acts 1877, p. 113.
A certificate from the superintendent that a "person is
not insane" upon his release is sufficient to overcome any
presumption as to his sanity. Talley v. Beavers, 141 Ga.
110, 80 S. E. 556.
§ 1575. (§ 1413.) Trustees may make and
change regulations. — The trustees shall prescribe
rules and regulations for the purposes aforesaid,
and from time to time, as experience may demon-
strate to be necessary, alter and change the same,
which rules and regulations, when thus estab-
lished, shall be executed and carried into effect by
the superintendent and other officers of said
Sanitarium. Acts 1877, p. 113.
§ 1576. (§ 1414.) Sanitarium free, to whom.—
Said Sanitarium shall be free to all the resident
citizens of this State who may be lunatics, idiots,
epileptics, or demented inebriates, and who, when
admitted, shall receive free the same food, raiment,
and medical and other attention as shall be pro-
vided for the inmates generally: Provided, how-
ever, that if the family or friends of any inmate
shall desire to furnish extra or additional food,
or other comforts, ■ they may be allowed so to do
at their own expense, under such rules and regula-
tions as said trustees may prescribe. Acts 1877, p.
113.
§ 1577. (§ 1415.) Regulations furnished to
ordinaries.. — As soon as regulations have been
made by the trustees for the reception of patients,
it shall be the duty of the trustees to cause to be
furnished, to the different ordinaries of this State,
copies of said rules and regulations. Acts 1877,
p. 113.
§ 1578. (§ 1416.) Harmless lunatics dis-
charged.— The board of trustees shall have power,
upon the certifying thereunto of the medical of-
ficer of the institution, to discharge or remand to
the county authorities whose duty it is made by
law to provide for the paupers of the county from
which he or she was sent, a patient in said Sani-
tarium, whose condition is such that no proba-
bility exists of his or her restoration to full reason
and sanity by medical ministrations thereto, and
who at the same time is regarded harmless and
inoffensive in spirit, and whose remission to so-
cial life would reasonably involve no danger to
the life of those with whom he or she would be
associated. Acts 1874, p. 91; 1884-5, p. 61.
As to rejection of harmless idiots, see § 1597.
§ 1579. (§ 1417.) Officers designated. — The
officers of the Sanitarium, appointed by the trus-
tees, are a superintendent, an assistant physician,
a treasurer, a steward, assistant steward, and
matron, whose salaries are paid quarterly out of
the annual appropriations.
§ 1580. (§ 1418.) Offices to be separate. — The
offices of treasurer and steward shall be separate
and distinct, and no two offices pertaining to said
institution, or its government, shall be held by
one and the same person. Acts 1873, p. 60.
§ 1581. (§ 1419.) Treasurer's bond. — The
treasurer must give bond and security in the sum
of forty thousand dollars. Acts 1878-9, p. 87;
1882-3, p. 68; 1900, p. 44.
§ 1582. (§ 1420.) Itemized accounts, — The
steward and treasurer, or either of them, shall
present to the Governor, with each quarterly ap-
plication for funds from the treasury, an exact
itemized account of his expenditures for the pre-
ceding quarter, accompanied with a duplicate
voucher for the sums disbursed by him for the
said preceding quarter. Acts 1873, p. 58.
§ 1583. (§ 1421.) Annual reports of trustees, —
At the close of each fiscal year, which terminates
on the first day of September, the trustees shall
make to the Governor, to be by him laid before
the General Assembly, in connection with his an-
nual message, a full report of the condition of
the Sanitarium in all its departments, embracing
the amount of each kind of provisions, drugs,
clothing, and bedding purchased, of whom pur-
chased, price paid, and aggregate cost; number
of persons received, died, and discharged; dates
of reception, discharge, and death; male and fe-
male, pauper and pay patients, and partial pay,
if any; and also whether payment was made in
clothing, provisions, or currency. Acts 1893, p.
30; §§ 195, 268.
As to necessity to furnish state librarian with annual
report, see § 195. As to time covered by this annual re-
port, see § 268.
§ 1584. (§ 1422.) Trustees shall present esti-
mates.— The trustees shall present to the Gov-
ernor, at least ten days before the annual meeting
of the General Assembly, an exact estimate of the
amount of money required for the support of the
[ 342 ]
§ 1585
THE SUPERINTENDENT
§ 1593
Sanitarium for the succeeding year; and they
shall set forth, under separate and distinct heads,
a division, to wit, subsistence, clothing, fuel, and
transportation, salaries, wages, medical supplies,
ordinary repairs, and special improvements — the
several amounts required for each of said depart-
ments of expenditures, and the Governor shall
submit the same to the legislature as data upon
which their appropriations may be made for the
annual support of said institution; and said ap-
propriations, or so much thereof as may be neces-
sary, shall only be used for the division of ex-
pense for which it is estimated, and no portion
estimated for each department of expenditure be
diverted to or used for any other department of
expenditure. Acts 1873, p. 59.
ARTICLE 2.
Physicians.
§ 1585. (§ 1423.) Physicians for Sanitarium. —
No person shall be elected a physician of the Sani-
tarium until after he shall have been rigidly and
thoroughly examined by the board of- trustees, and
found to be well qualified to discharge the duties of
the office. The board of trustees shall select three
competent physicians, one of whom shall be a
member and chairman of the board of trustees, and
require all applicants for election to the position of
superintendent' and assistant physicians to appear
before said commission and stand their examina-
tions, and the examination-papers to be returned to
the board, with such recommendations as said
board of physicians may make, and then said
board shall commission said applicants, if the ex-
amination is satisfactory, who shall hold their
respective officers two years, subject to removal by
the board of trustees; all questions, with the an-
swers made by each applicant in the presence of the
board of physicians to be filed in the archives of the
Sanitarium for future reference; said examining
board of physicians to be paid such sum as said
trustees may allow, out of the contingent fund of
the Sanitarium. Acts 1890-1, p. 232.
§ 1586. (§ 1424.) No subsequent examination.
— A second examination shall not be required of
those who have already been examined and elected;
such election shall be held biennially. Those officers
who have served continuously for a period of ten
years shall not be required to stand the examina-
tions provided for. Acts 1890-1, p. 232.
§ 1587. Competitive examinations open to
women. — In the event of a vacancy in the corps of
assistant physicians at the Sanitarium by death, re-
moval, or resignation, it shall be the duty of the
board of trustees to give thirty days notice, in two of
the leading public gazettes of this State of such
vacancy, that a written competitive examination will
be held on a day and at a place to be named in said
notice, for the purpose of filling such vacancy;
further, that such competitive examination will be
open to all physicians in good standing, whether
women or men; such notice shall moreover give
the term of office and salary attached to said of-
fice. Acts 1897, p. 110
§ 1588. Examinations, how conducted. — The
competitive examination provided for in the pre-
ceding section shall be conducted by a board of
physicians in pursuance of the requirements clearly
outlined in section 1585, and the applicant who,
other necessary qualifications being considered,
shall make the highest general average in such
competitive examination, whether woman or man,
shall be employed to fill such vacancy.
§ 1589. When suspended. — As it is the purpose
to have at least one woman physician as assistant at
said Sanitarium, it shall be the duty of the board of
trustees, in the event that a woman physician be
employed in pursuance of the requirements of the
foregoing section to fill the first vacancy that may
occur in the corps of assistant physicians aforesaid,
to suspend the competitive examinations provided
for; but should a man be employed, then the next
vacancy shall be open, through written competitive
examination, to men and women physicians alike.
§ 1590. Terms of office, salary, and duty of
assistant. — The term of office of such assistant
physician, shall be two years, unless sooner removed
for cause. The salary shall be the same as that which
attached to the position at the time the vacancy
occured. In the event a woman physician is em-
ployed to fill such vacancy, the board of trustees
shall assign her to duty in the line of her pro-
fession.
ARTICLE 3.
Marshal.
§ 1591. (§ 1425.) Trustees to appoint marshal.
— The trustees shall have power to appoint a mar-
shal, whose duty shall be to arrest any person or
persons found upon the premises of said institution,
guilty of disorderly conduct; or who shall use any
obscene, profane, or vulgar language; or who shall
play at any game of cards or any game of chance for
money or other thing of value; or who shall sell any
malt beer, wine, or other alcholic liquors; who shall
be found within or upon the premises in a state of
intoxication; or who shall trespass upon the prem-
ises or lands of said Sanitarium after due notice
has been given.
§ 1592. (§ 1426.) Must turn over offenders to
whom. — The said marshal is authorized to turn
over to the municipal authorities of the city of
Milledgeville any person or persons arrested who
may commit offenses that come within the jurisdic-
tion of said municipal authorities (and authority is
hereby conferred upon the municipal authorities of
the city of Milledgeville to try and to punish such
offenders), and to the authorities of Baldwin county
any person or persons arrested who commit offenses
that come within the jurisdiction exercised by said
county authorities, to be dealt with as the law directs
in each case. All witnesses shall be summoned by
said marshal, on process issued by the mayor of
Milledgeville, or by the proper legal authorities of
Baldwin county: Provided, the provisions of this
and the preceding section shall not be so construed
as to increase the expenses of said Sanitarium to the
State.
ARTICLE 4.
The Superintendent.
§ 1593. (§ 1427.) Superintendent of Sanitarium.
— The principal officer of said Sanitarium is the
superintendent, who shall be a skillful physician.
343 ]
1594
ADMISSION, MANAGEMENT, DISCHARGE OF PATIENTS
§ 1607
§ 1594. (§ 1428.) Superintendent's duties.— It
is his duty —
1. To reside constantly on the premises, and
devote his professional services exclusively to the
use of the Sanitarium, for which purpose he must
be furnished with a suitable residence.
2. To take charge of and exercise control, sub-
ject to the trustees, over every department of the
institution, and have control over all resident of-
ficers, attendants and servants employed herein.
3. To discharge all duties in any way connected
with the restoration to health or sanity of the in-
mates.
4. To make an annual report to the trustees,
on the first day of October, of all the affairs of
the institution under his supervision and to account
for all his expenditures on vouchers in the same
form as those which are made in accounting for
disbursements in the commissary department of
the United States. Acts 1865-6, p. 24.
As to superintendent's duty to inspect patients in pri-
vate hospitals, see § 1631.
ARTICLE 5.
The Admission, Management, and Discharge of
Patients.
§ 1595. (§ 1429.) Who may be inmates. —
Persons who may become inmates of said Sani-
tarium are either lunatics, idiots, epileptics, or de-
mented inebriates.
See § 1576.
§ 1596. (§ 1430.) Classification of inmates.—
The inmates are divided into the following classes:
1. Pay or pauper patients residents of this
State.
2. Pay patients being non-residents.
3. Insane penitentiary convicts.
4. Insane negroes, in certain cases.
§ 1597. (§ 1431.) Harmless idiots rejected,
when. — The superintendent may refuse to receive
into the institution all harmless idoits, and such
other harmless subjects as do not actually require
treatment in the Sanitarium, so long as there are
any recent and dangerous cases unprovided for;
this discretionary power is granted to him until
ample accommodations are made to receive within
the institution all persons who, under the law, are
entitled to admittance therein. Acts 1878-9, p.
424.
As to discharge of harmless lunatics, see § 1578.
§ 1598. (§ 1432.) Sanitarium to be divided
into apartments. — The trustee shall see that proper
and distinct apartments are arranged for said
patients, so that in no case shall the negro
and the white person be together, nor the peniten-
tiary convicts with either, and males and females
shall be kept separately.
§ 1599. (§ 1433.) Georgia inmates preferred. —
Citizens of our own State shall have preference to
non-residents when, at the time of the applica-
tion, all can not be accommodated, and if such a
contingency should happen, it must be reported
to the Governor without delay, who shall com-
municate the fact to the General Assembly.
§ 1600. (§ 1434.) Applicants must be citizens
of Georgia. — Every one sent to the Sanitarium
from any county in Georgia must be shown, in
the exemplification of proceedings, to be at the
time strictly a citizen of this State, in terms of
the law relating to citizenship. Acts 1874, p. 91.
§ 1601. (§ 1435.) Resident pay patients, how
admitted. — A pay patient, resident of this State,
shall not be admitted unless accompanied by au-
thentic evidence of lunacy, according to law, or
there is produced the certificate of three respect-
able practicing physicians, well acquainted with
the condition of the patient, or from one of such
physicians and two respectable citizens, stating
the cause of the application. Acts 1857, p. 123.
§ 1602. (§ 1436.) Exemplification must be
certified.— The exemplification of proceedings sent
with the party committed, shall, in all cases, be
certified to be a true copy from the book of record
kept for that purpose. Acts 1874, p. 92.
§ 1603, (§ 1437.) Non-resident pay patients,
how admitted.— A pay patient, not a resident of
this State, shall not be admitted unless accom-
panied by an authentic record of a conviction of a
malady which by the .law of this State is a ground
of admission, from a court having jurisdiction, or
shall produce a certificate like that required in this
State, together with the certificate of the judge
having jurisdiction, who shall state officially that
the certificate of said physicians, and other per-
sons, are genuine and entitled to full credit; and
shall then not be received until the payment of
expenses is secured.
§ 1604. (§ 1438.) Pay patients may be classified.
— Pay patients may be divided into different
classes, according to the accommodation desired
and their means of paying.
§ 1605. (§ 1439.) Pauper patients, and how
they are classified.— When a person has been
convicted of a malady requiring him to be com-
mitted to said Sanitarium, it is the duty of the
court presiding at the trial to certify if said per-
son be a pauper. He shall not be certified a pauper
unless in whole or in part supported by the
county, or the county is bound for his support
under the law. If there are persons who by law
are bound and able to support him, the names of
such persons must be given. If the person has
means enough to support himself in part, the
amount of such means must be stated, and must
be paid toward his support.
§ 1606. (§ 1440.) Pauper patients, how sup-
ported.—-A certificate of pauperism entitles the
person to be supported at the expense of the
State. Those for whose support others are bound
must be furnished with suitable support by the
State, and the expense collected out of such
other persons by the trustees.
§ 1607. (§ 1441.) Pauperism ceasing, patients
must pay. — If a patient committed as a pauper, or
as of limited means, becomes entitled to an estate,
said estate is bound for his support according to
its value, and whoever holds it may be compelled
to secure to the Sanitarium its proper charges, or
to turn over to the trustees the property to be
held for such purpose.
Under this section the state may be entitled to a lien,
[344]
§ 1608
GEORGIA TRAINING SCHOOL FOR MENTAL DEFECTIVES
§ 1614(3)
which is not foreclosed or asserted, against the property
of an insane person on its charge. However this does not
prohibit one who furnished necessaries to insane person's
child from recovery against such person's estate. Ellis v.
Hewitt, 15 Ga. App. 693, 84 S. E). 185.
§ 1608. (§ 1442.) Discharged paupers must
be clad, etc. — A pauper patient shall not be dis-
charged from the Sanitarium without proper
clothing and a sum of money necessary to carry
him to his residence or the county from whence
he was sent.
§ 1609. (§ 1443.) Trial of lunacy may be de-
manded, etc. — Before or after admission of a pay
patient, resident or non-resident, by certificate,
the person alleged to be a lunatic, or his friend or
relative, may make a demand of the superintend-
ent for a trial of the question of lunacy by jury,
which shall be had without delay, according to
law, in the county of Baldwin.
§ 1610. (§ 1444.) How trial may be demanded.
— The like demand and trial may be had by all
patients who have been convicted of lunacy, if
the person demanding it, being relative or friend,
will make an affidavit that he believes the alleged
cause of commitment did not and does not exist,
and that the conviction was obtained by fraud,
collusion, or mistake. The same right exists, when
there is an affidavit that the cause of commit-
ment has ceased to exist, and there is a refusal by
the superintendent to discharge after demand
made.
§ 1611. (§ 1445.) Insane negroes, etc. — Apart-
ments must be provided for insane negroes, resi-
dents of this State, who are able or unable to sup-
port and take care of themselves. Those negroes
who are able must pay for their support; those
unable must be supported as other pauper pa-
tients. The certificate of the ordinary of the
county where the negro resides, of his condition,
mentally and pecuniarily, shall be sufficient to
grant his admittance.
§ 1612. (§ 1449.) Temporary disposition of pa-
tients.— Whenever there shall be an application
for admission unattended by the requisite evi-
dences, the superintendent has authority to receive
and provide for the person for a reasonable time,
provided a sufficient sum shall be advanced for
his maintenance in the meantime.
§ 1613. (§ 1450.) Absentees for twelve months
must be recommitted in form. — When a person
has been properly received as a patient, but is
absent for as long as twelve months, either from
discharge, elopement, or removal by friends, he
can not be received at the Sanitarium without go-
ing through the process required in this Chapter,
according to the class of patients of which he may
be. Acts 1920, p. 74.
Editor's Note.— The act of 1920 (acts 1920, p. 74) in-
creased the time that a party might absent himself from
the sanatarium without being recommitted from three to
twelve months.
§ 1614. (§ 1451.) Insane criminals, how dealt
with. — When a person has been acquitted of a
capital crime on the ground of insanity, and such
person is committed to the Sanitarium, he shall
not be discharged thence except by special act
of the legislature. If the crime is not capital, he
shall be discharged by warrant or order from the
Governor. If sentence is suspended on the ground
of insanity, upon restoration to sanity the super-
intendent shall certify the fact to the presiding
judge of the court where he was convicted.
CHAPTER 1A.
Georgia Training School for Mental Defectives.
§ 1614(1). Georgia Training School for Men-
tal Defectives established. — There is hereby created
in this State an institution to be known as the
"Georgia Training School for Mental Defectives,"
which institution shall be established as provided in
Section 1614(2); the institution shall be managed
and operated as provided in Section 1614(3); per-
sons of the class defined in Section 1014(4) shall be
admitted to the institution in the manner and under
the rules provided in Section 1614(5); persons ad-
mitted for treatment and training in said institu-
tion shall be treated and trained in accordance with
Section 1614(6) thereof; persons who have re-
ceived treatment and training at said institution,
and whose condition has been improved to the ex-
tent that they no longer constitute menaces to
themselves or the communit}^, shall be discharged
or paroled as provided in Section 1614(7) an ap-
propriation for the maintenance of said institution
is authorized as set forth in Section 1614(8).
Acts 1919, p. 377.
§ 1614(2). Temporary board of control — site^-
no pay except expenses. — The Georgia Training
School for Mental Defectives shall be established as
soon as possible after the passage of this Act. To
this end, there is hereby created a temporary Board
of Control of said institution, which Board shall be
composed of the Governor, who shall be its chair-
man, the Attorney-General, and the Secretary of
the State Board of Health, and shall have complete
charge of the establishment and location of said
school. Within sixty days after the passage of this
Act the said temporary Board of Control shall
meet and proceed with the establishment of the
institution. The said Board is, under this Act, em-
powered to use its discretion as to the best method
to pursue in the establishment of the school, and
may either call for bids from towns, cities or coun-
ties, making donations toward, the establishment of
same, or may make any other legal arrangement
which shall have the approval of the Attorney-Gen-
eral as to its legality. Said temporary Board of
Control shall not accept as a donation for this pur-
pose and shall not establish the said institution
upon any tract of land containing less than 300
acres, or which is not suitable for the work herein-
after contemplated. Said Board shall serve with-
out expenses to the State, save that the actual travel-
ing expenses of its members shall be paid when in-
curred in the discharge of the duties imposed upon
said Board by this Act. Immediately upon the es-
tablishment of said institution the said temporary
Board of Control shall cease to exist, and the school
shall be managed and operated as provided in
Section 1614(6). Acts 1919, pp. 377, 3?8.
§ 1614(3). State Board of Health to manage the
institution — Superintendent. — The Georgia Train-
ing School for Mental Defectives shall be under the
sole and direct control and management of the
[ 345
§ 1614(4)
GEORGIA TRAINING SCHOOL FOR MENTAL DEFECTIVES
§ 1614(5)
State Board of Health, and the said State Board of
Health is hereby directly empowered to operate
said institution from and after its establishment.
The said State Board of Health shall appoint a Su-
perintendent for said institution, it being provided
that the said Superintendent shall be a physician
scientifically trained in psychiatry, and with spe-
cial training relating to mental deficiency. The in-
stitution shall be operated, upon thoroughly scien-
tific lines, as set forth in Section 1614(6) and the said
State Board of Health is hereby given the author-
ity, and it shall be its duty, to provide for such
scientific management. Acts 1919, pp. 377, 378.
§ 1614(4). "Mental defectives" defined — class
of inmates preferred. — There shall be admitted to
the Georgia Training School for Mental Defectives
the following type of persons: Any person with
mental defectiveness from birth or from an early
age, or those that become mentally defective from
injury or disease so pronounced that he or she is
unable to care for himself or herself and manage
his affairs with ordinary prudence, and that he con-
stitutes a menace to the happiness of himself or of
others in the community, and therefore requires
care, supervision and control, either for his own
protection or for the protection of others, and yet
who is not insane or of unsound mind. This type
of persons shall be known and designated as "Men-
tal Defectives." Should the institution at any time
not be able to accommodate all who shall under the
terms of Section 1614(6) be admitted thereto, it is
hereby provided, that preference in admission shall
be given to children and women of child-bearing
age. Acts 1919, pp. 377, 378.
§ 1614(5). Method of admission. — Mental de-
fectives shall be admitted to the Georgia Training
School for Mental Defectives in the following man-
ner:
(a) The father, mother or guardian of any men-
tally defective person, or any health officer or school
official of the county in which said mentally defec-
tive person shall live, may apply to the Superin-
tendent of the Georgia Training School for Men-
tal Defectives, supplying such data as the Super-
intendent may require; and if, after examination,
both physical and mental, has been made by or un-
der the direction of said Superintendent, said person
shall be adjudged a mental defective under the
terms of this Act, then the said Superintendent may
receive said person into the said Georgia Training
School for Mental Defectives.
(b) The court of Ordinary shall have juris-
diction in all cases of legal inquiry in regard to
mental defectiveness, and application for com-
mitment of persons to the Georgia Training
School for Mental Defectives shall be filed with the
Ordinary of the county in which said person lives.
Any relative of the person majr make application to
have the person so adjudged; but when the rela-
tives of such a mentally defective person either neg-
lect or refuse to place said person in the Georgia
Training School for Mental Defectives or in some
private institution of a like nature, and shall permit
him or her to go at large, then any reputable citi-
zen of said county may make application for com-
mitment, in writing and under oath, to the Ordi-
nary of said county, and shall not be subject to
exception or demurrer for defects of form.
When application is filed in the court of Ordi-
nary for the commitment of an alleged mentally
defective person, the judge of that court shall ap-
point two physicians to examine such person and
determine whether or not such person is mentally
defective. Both of these physicians shall be se-
lected as being the most capable physicians avail-
able because of knowledge of and, training in men-
tal medicine, and neither of them shall be related, in
any wise to the person sought to be committed, it
being understood and provided that any court of
the State where a prisoner is on trial for a misde-
meanor offense and the judge of such court shall
have cause to 'belive that such prisoner is mentally
defective, then he may appoint two physicians to
examine said prisoner, to ascertain whether or not
said prisoner is in reality mentally defective; and
if said physicians shall pronounce said prisoner
to be mentally defective, then the judge may com-
mit said prisoner to the Georgia Training School
for Mental Defectives. In either of the cases
named above, the physicians making the examina-
tion shall be required to make such examination
complete and thorough, both physically and men-
tally, and shall be required to make to the court
appointing them, certification as to their findings in
the matter. This certification shall be in the
form prescribed by the State Board of Health,
and shall be made in duplicate, one copy of the
same being sent with the patient when committed
to the Georgia Training School for Mental De-
fectives and the other copy being filed with the
court of Ordinary in the county from which said
person is committed; and it shall be the duty of
the Superintendent of said Georgia Training
School for Mental Defectives to refuse ad-
mission to any person unless he, or she,
shall present a copy of said certification. That it
shall be the duty of the sheriff, when directed by
writ by the clerk of the court, to convey such
mentally defective person to the Training School
for Mental Defectives, as ordered 'by the court.
It shall be the duty of the sheriff to protect such
persons until such time as he can be conveyed, to
the institution directed. In the case of a female
being taken to the institution, a female attendant
must be provided. All expenses connected with
the conveying of such mentally defective person
to the Training School for Mental Defectives
shall be borne by the county in which said per-
son has legal settlement.
(c) The relative, guardian or friend of any in-
mate of any State institution shall have the right
and power to appeal to the court placing said in-
mate in said institution, for an order from said
court directing an examination, in the regular and
legal method, of said inmate, to determine
whether or not he or she is mentally defective,
and if such inmate shall be adjudged mentally
defective, then the said court shall have
the right to remove him or her from the institu-
tion in which said inmate might be, and commit
him or her to the Georgia Training School for
Mental Defectives, it being hereby provided that
this shall apply to only those who might have in
the first instance been committed to the said
Georgia Training School for Mental Defectives
and provided in clauses (a) and ('b) of this Sec-
tion; provided nothing, however, in this Act shall
[346]
§ 1614(6)
SANITARIUM FOR TUBERCULOSIS PATIENTS
§ 1623(1)
have the effect of denying the right of appeal to
any person so adjudged a person of feeble mind,
but all issues of fact arising by virtue of any re-
port of any officer or commission herein provided
for, duly traversed by the person so adjudged or
by any one acting for such person, shall be tried
before a special jur}^ in the court in which the
question arises. Acts 1919, pp. 377, 379.
§ 1614(6). Training and treatment. — The
training and treatment of those admitted to the
Georgia Training School for Mental Defectives
shall be along such educational, medical and in-
dustrial lines as have proved effective in the most
approved institutions for this type of persons.
Acts 1919, pp. 377, 381.
§ 1614(7). Discharge or parole. — When, in
the judgment of the Superintendent of the Georgia
Training School for Mental Defectives, a patient
or inmate of said institution, shall, under the
treatment given therein, improve mentally and
physically to such an extent as to no longer con-
stitute a menace to himself or others as set forth
in Section 1614(3) then the said Superintendent
shall have the right and it shall be his duty to pa-
role or discharge such patient or inmate, under
such rules and regulations as may be scientifically
promulgated by the State Board of Health. Acts
1919, pp. 377, 382.
§ 1614(8). Guardian, when appointed. — In
case there is no room in the Training School for
Mental Defectives for the person found, to be
mentally defective, and in case suitable and com-
petent guardian for said mentally defective person
can be found, it is within the jurisdiction of the
court to appoint such person guardian 'both of the
estate and the person of the one so found to be
mentally defective. Acts 1919, pp. 377, 382.
CHAPTER 2.
Sanitarium for the Treatment of Tuberculosis
Patients.
§ 1615. State Sanitarium established. — There
shall be established, as one of the State institu-
tions of the State, a State Sanitarium, where pa-
tients afflicted with tuberculosis or consumption
shall be treated. The same to be located, equip-
ped, and conducted as hereafter provided. Acts
1908, p. 101.
§ 1815(1). Sanatorium instead of sanitarium.
— The term sanatorium shall be applied to the in-
stitution hereafter instead of sanitarium, as used
in the aforesaid section authorizing the establish-
ment of the institution, in order to conform to
the general usage as to tuberculosis institutions,
and for the further purpose of distinguishing it
from the institution for the treatment of insane at
Milledgeville. Acts 1918, p. 237.
§ 1616. Board of Trustees or Managers. — The
Governor shall select two trustees from each
Congressional district of the State, one to be a
licensed practitioner of medicine, who shall con-
stitute for said Sanitarium a board of trustees or
managers, and said Sanitarium shall be located,
equipped, conducted, and managed according to
the rules and regulations prescribed by the board
of managers, or a majority of them.
§ 1617. Term of office of managers. — The
board of managers shall be appointed and shall
continue in office for and. during the full term of
four years, or until their successors are appointed
and qualified.
§ 1618. President and secretary. — As soon as
the managers are appointed and acceptance of
said appointment is signified, they shall meet at
the State capitol at such time as may be designated
by the Governor, and shall organize by electing a
president and secretary, who shall hold their re-
spective offices at the pleasure of said board of
trustees and managers.
§ 1619. When the board shall select a site for
the building. — As soon as such organization is
perfected and the rules and regulations for the
government of said institution shall be formu-
lated and promulgated by said board of trustees
or Governor, the board shall select a suitable site
for the 'building of the Sanitarium, or they may
in their judgment, purchase a building already
constructed.
§ 1620. Board shall select a doctor, assistants,
nurses, etc. — The board of trustees or managers
shall, when the Sanitarium has been built or ac-
quired by purchase, equip the same as a San-
itarium, and shall place in charge thereof a
medical doctor, who shall be selected by said
board of trustees or managers; said doctor shall
be qualified to take charge of said institution by
having had some experience in the treatment of
tuberculosis or consumption; the board shall
select such assistants, nurses, etc., as the success-
ful conduct of the institution shall require.
§ 1621. Two departments, indigent and pay
patients. — The board of trustees or managers
shall have two departments in said Sanitarium;
one for treatment of indigent patients, who shall
be received therein, and treated free of charge:
the other a pay department, where patients shall
be received and treated upon such terms and
conditions and for such fees as the board of trus-
tees or managers shall from time to time pre-
scribe.
§ 1622. No compensation for trustees or
managers. — The board of trustees or managers
shall serve without compensation.
§ 1623. Appropriation. — The sum of twenty-
five thousand dollars, or so much thereof as may
be necessary, is hereby appropriated for the pur-
pose of acquiring a site for said Sanitarium and
the necessary and suitable buildings thereon.
Said sum shall be made available yearly as fol-
lows: $1,000 for the year of 1908; $12,000 for the
year of 1909; and $12,000 for the year 1910.
§ 1623(1). Board of management changed. —
The management of the sanitarium for the
treatment of tuberculosis or consumptive pa-
tients, created under §§ 1615-1616, establishing
and organizing such sanitarium and providing
for the management thereof, be and the same is
vested in the State Board of Health, instead of
in the board of trustees or managers created by
the said sections. The board of trustees or
managers created and provided for by said sec-
tions is herebv abolished, and all of the powers
[347]
§ 1623(2)
PRIVATE HOSPITALS AND SANITARIUMS
§ 1629
conferred and created by this Act are hereby
vested in said State Board of Health, who are
hereby constituted the board of trustees or managers
of said sanitarium. All provisions of said sections
applicable to the board of trustees or managers
therein created are here'by made applicable to the
said State Board of Health, appointed, as the
trustees or managers of said sanitarium. Acts
1918 pp. 237.
§ 1623(2). Appropriations and contributions by
towns, etc.— It shall be lawful for the towns,
municipalities, cities and counties of this State
to appropriate and expend public moneys set
apart as charity funds for the purpose of enlarg-
ing, maintaining and operating hospital facilities
at the State Sanatorium for Tubercular Patients
at Alto, Banks County, Georgia, and such sums
of money, appropriated or other property contri-
buted shall be in addition to the moneys annually
appropriated, by the General Assembly of the
State of Georgia for such purposes. Acts 1922
pp. 184, 185.
§ 1623(3). Expenditures.— The State Board of
Health shall make and enforce all necessary rules,
regulations and requirements relative to the use
and expenditure of the moneys appropriated un-
der the terms of this Act, for the enlargement,
maintenance and operation of the State Sana-
torium for Tubercular Patients. Acts 1922, p.
185.
§ 1623(4). Acceptance of patients. — The terms
and conditions under which patients are to
be accepted, as well as the direction, custody,
discipline and control of such patients shall at
all times be subject to such reasonable rules, regu-
lations and control as may be prescribed by the
State Board of Health. Acts 1922, p. 185.
§ 1623(5). Rules of state board of health.—
The additions and, contributions to the said State
Sanatorium for Tubercular Patients shall at all
times conform to and be expended and disbursed
under rules and regulations prescribed and laid
down by the State Board of Health. Acts i922,
p. 185.
CHAPTER 3.
Private Insane Asylum; Protection of Inmates.
§ 1624. (§ 1452.) Letters of inmates of asy-
lums protected. — Each inmate of every private in-
sane asylum in this State shall be permitted to
select one person, a relative or friend, from the out-
side world, with whom he or she may correspond
by letter whenever he or she may desire, and over
every such letter or letters directed to such chosen
relative or friend there shall be no censorship ex-
ercised or allowed by any of the asylum offi-
cias or employees; but the post-office rights of
such inmates, so far as the person so chosen is
concerned, shall be as free and unrestricted as
those of any citizen of the United Stages and
shall be under the protection of the postal laws;
every such inmate shall have the right, if he or
she so desires, to make a new choice of such cor-
respondent every three months. It shall be the
duty of the superintendent to furnish every such
inmate, if requested to do so, with suitable ma-
terials for writing, inclosing, sealing, stamping,
and mailing at least one letter a week, unless the
inmate is otherwise furnished with such materials,
and all such letters shall be dropped by the writers
thereof, accompanied, by an attendant when nec-
essary, into a United States post-office box; but
the attendant shall in all cases see that such let-
ters are directed to the patient's correspondent, and
if they are not so directed they shall be held sub-
ject the the superintendent's disposal. Acts
1892, p. 109.
See P. C, § 574.
§ 1625. (§ 1453.) Regulating correspondence.
— It is hereby made the duty of the superinten-
dent to keep registered and posted in some pu'b-
lic place in the asylum a true list of the name >
of all persons so chosen, and by whom chosen,
and it is hereb}'' made the duty of the superinten-
dent to inform each person so chosen of the name
of the party choosing him or her, and to request
him or her to write his or her name on the out-
side of the envelope of every letter he or she
writes to such inmate, and all such letters bear-
ing the writer's name on the outside shall be
promptly delivered to the person addressed and
shall not be opened or read by any one without
the voluntary consent of the party to whom the
same is addressed being first obtained: Provided,
however, if there is any reason to believe that
the envelops contains materials which might be
used for medication, then, in that case, the letter
shall be opened in the presence of a competent-
witness, and this substance shall be delivered to
the superintendent to be disposed of at his dis-
cretion, but the letter must be delivered as di-
rected. Acts 1890-1, p. 237.
See P. C. § 574.
§ 1626. (§ 1454.) This law to be posted in
every ward. — A copy of this law shall he printed,
framed, and kept posted in every ward of every
private insane asylum in the State. Acts 1892, p
109.
§ 1627. (§ 1455.) Given in charge to grand
juries.— The judges of the superior courts shall
give this law in special charge to the grand juries
of such counties as have private lunatic asy-
lums located therein, and require said juries to
see that the provisions of this Chapter are en-
forced. Acts 1892, p. 109.
As lo given action in charge to juries, see P. C, § 850.
CHAPTER 4.
Private Hospitals and Sanitariums.
§ 1628. Private hospitals and sanitariums. — It
shall be lawful for any private hospital or sani-
tarium in this State, for inebriate or other per-
sons who are the victims of the excessive use of
alcohol, morphine, cocaine, or other intoxicants,
narcotics, or drugs of a similar character, to re-
ceive such persons therein, for treatment, who
shall voluntarily make application for admission
therein. Acts 1899, p. 81.
§ 1629. Treatment of patients. — When any such
person shall apply for admission, and be received
in such hospital or sanitarium, the authorities
thereof shall have the right to exercise such re-
348 ]
§ 1630
HEALTH AND QUARANTINE
§ 1636
straint upon the person of such patient, and ad-
minister such treatment to him, as may, in their
opinion, be necessary and proper for the care and
treatment, according to the methods in use by
alienists and neurologists in such cases.
§ 1630. Discharge of patients. — The authorities
of such private hospital or sanitarium shall have
the right to discharge such patient at any time
they may deem proper; or whenever the patient,
or other person with whom the contract for his
treatment is made for such treatment, fails to com-
ply with the terms of such contract.
§ 1631. Inspection, subject to. — Any private in-
stitution of the character aforesaid, which shall
receive a patient under the provisions of this Chap-
ter, shall be subject to the inspection and investi-
gation of the superintendent of the Georgia State
Sanitarium, and of the chairman of the State board
of medical examiners. Such inspection and inves-
tigation of said officers may be made at any time,
and any number of times they may deem proper,
and ithey may make such recommendations in
their annual or other reports, as the management
of such institutions, as will, in their opinion, tend
to the improvement of the same.
As to the annual report of superintendent, see § 1593 (4).
CHAPTER 5.
Health and Quarantine.
§ 1632. (§ 1456.) Destroying property fbr
public good. — Analogous to the right of eminent
domain is the power from necessity, vested in
corporate authorities of cities, towns, and counties,
to interfere with and sometimes to destroy the
private property of the citizen for the public good,
such as the destruction of houses to prevent the
extension of a conflagration, or the taking posses-
sion of buildings to prevent the spreading of con-
tagious diseases. In all such cases, any damages
accruing to the owner from such acts, and which
would not otherwise have been sustained, must
be paid by such corporation.
Cross References. — See § 3628.
As to eminent domain, see §§ 3624-3627. As to con-
demnation proceedings by corporations or persons, see §
5206.
Scope of Section. — This section only extends to the tak-
ing possession of a house or surrounding it with a guard,
in which a contageous disease exists to prevent its spread-
ing. A mere quarantine regulation. Markham v. Brown,
37 Ga. 277, 282.
Same — As to Personal Property. — Where the authorities
of a town destroy a house to prevent the spread of a fire,
and in so doing cause the destruction of personal effects
in said house, which would not otherwise have been de-
stroyed, the town is liable to the owner of the goods for
the damages even though he is only a tenant in the house.
Dawson v. Kuttner, 48 Ga. 133.
Authority Exercised — Governmental or Ministerial. — Inas-
much as this section expressly provides that the city shall
be liable for the damages caused by destroying property
to prevent the extension of a fire, it as immaterial whether
the city in destroying the property did so in the exercise
of a governmental or ministerial authority. Vandevender
v. Atlanta, 150 Ga. 443, 444, 104 S. E. 227. As to discussion.
of ministerial and magisterial duty, see notes to § 897.
§ 1633. (§ 1457.) Hospitals, how established.—
The authorities of any town or city may establish
in them, respectively, or in the vicinity thereof,
hospitals or pest-houses, to be subject to such
regulations as the corporate authorities may make
to prevent the spread of infectious or contagious
diseases; but in all casse where such hospitals or
pest-houses shall be established out of the limits
of such towns, they shall be only on land ac-
quired by such corporation, for protection against
the spread of diseases within its own limits; in all
other cases the ordinaries are vested with power
to establish such hospitals and make such regula-
tions.
Cross References. — As to authority to establish small-pox
hospital, see § 1647; as to sanitary regulations by county
authorities, see § 1670. As to establishment of sanatorium,
see § 1677.
Expenses. — As to sharing expense of pest-house main-
tained jointly by county and city, see Macon v. Bibb
County, 138 Ga. 366, 75 S. E. 435.
§ 1634. (§ 1458.) Quarantine, how prescribed
and regulated. — The corporate authorities of such
town may, from time to time, prescribe the quar-
antine to be observed by all vessels arriving
within the harbor or vicinity of such town, and
regulations therefor, not contrary to law; and such
regulations may extend to all persons, goods, and
effects arriving in such vessels, and to all persons
going on board of the same. Any person violat-
ing such regulations, or any of them, after per-
sonal notice, or after other notice thereof, given
for five days, in such manner as may be prescribed
by such corporate authorities, or, in the absence
of any mode so prescribed, by notice of such
regulation for five days in some newspaper in
such town, or, where there is no newspaper, by
notice posted up at some public place in such
town for the same length of time, shall be guilty
of a misdemeanor: Provided, nothing herein con-
tained shall prevent the infliction by the corporate
authorities having power to pass ordinances or
by-laws of such other penalty, not exceeding one
hundred dollars fine, in lieu of the penalty first
above named, as may be prescribed in any such
ordinance or by-law.
As to same provision in penal code, see P. C, § 495. As
to power of state board of health to establish quarantine,
see § 1662.
§ 1635. ((§ 1459.) Quarantine towns. — Any
town may establish a quarantine therefor at any
place within the harbor, if a seaport town, but in
such manner as not to interfere with the rights
of private property; and the jurisdiction of the
corporation of Savannah shall, in cases of quaran-
tine, extend to all ships and vessels which shall
enter at any port or inlet from Ossabaw Sound
to Tybee; and the jurisdiction of the corporation
oi Darien shall, in cases of quarantine, extend to
all ships and vessels which shall enter any port
or inlet from St. Catharine's to Doboy Sound; and
the jurisdiction of the corporation of Brunswick
shall, in cases of quarantine, extend to all ships
and vessels which shall enter any port or inlet
from Altamaha Sound to St. Andrew's Sound;
and the jurisdiction of the corporation of St.
Mary's shall, in cases of quarantine, extend to all
ships and vessels wrhich shall enter any port or
inlet from Cumberland Sound to St. Mary's river,
including all inlets, rivers and creeks within those
limits. Acts 1880-1, p. 70; 1884-5, p. 46.
§ 1636. (§ 1460.) Vessels may be removed to
quarantine-ground. — The health officer or visiting
physician of such town may, under the direction
349 ]
§ 1637
HEALTH AND QUARANTINE
§ 1647
of the corporate authorities, cause any vessel ar-
riving therein, or in the vicinity, if the vessel or
cargo is in his opinion so foul or infected as to
endanger the public health, to be removed to the
quarantine-ground, or other proper place, to be
inspected.
As to same provisions in penal code with penalty, see
P. C, § 496.
§ 1637. (§ 1461.) Persons escaping quarantine,
how dealt with. — If any person ordered to perform
quarantine shall escape, any justice, on complaint
thereof on oath, may issue his warrant to the
sheriff, constable, or town marshal, to arrest and
deliver such person to the custody of the officers
of the quarantine, and any person attempting to
escape may be forcibly detained at the place of
quarantine by such officers.
§ 1638. (§ 1462.) Master of vessels must de-
liver bill of health, etc. — The master of any vessel
ordered to perform quarantine shall deliver to the
officer appointed to see it performed his bill of
health and manifest, log-book, and journal.
As to same provisions in penal code with penaltv, see
P. C, § 497.
§ 1639. (§ 1463.) Inland travelers to perform
quarantine. — Any person coming into town by
land from a place infected with a contagious di-
sease may be compelled to perform quarantine
by the health officer, under the direction of the
corporate authorities, and restrained from traveling
until discharged.
As to same provision in penal code with punishment, see
P. C, § 498.
§ 1640. ( § 1464.) Duty of pilots before en-
tering vessels. — It shall be the duty of any pilot,
before entering on board of any vessel, to make
strict inquiry of every master or commander of the
same as to the state of health in such vessel, and
in case it be found that any malignant, con-
tagious, or infectious disease is on board such
vessel, such pilot shall not enter therein, under the
penalty of one hundred dollars and removal from
office; and any such master or commander refus-
ing to answer any such reasonable inquiry, or
giving false information in answer, may be fined
in a sum not exceeding five hundred dollars.
As to same provision in penal code, see P, C, § 499.
§ 1641. (§ 1465.) Persons on board of vessels
shall observe quarantine. — No person on board
such ship or vessel in which such disease shall
exist, or whilst such ship or vessel is performing
quarantine, shall come or be permitted to come
on shore or land from such vessel, without per-
mission from the proper authority, under rjhe
penalty of fine and imprisonment at the discretion
of the court, and any person going on board such
vessel (except the health officer or visiting physi-
cian) and returning without such permission shall
be liable to the same penalty.
As to same provision in penal code, see P. C, § 500.
§ 1642, (§ 1466.) Proclamation of Governor
as to contagious diseases. — The Governor of this
State may, by proclamation, whenever he shall
deem it necessary, give such orders to prevent
the spread of contagious or infectious diseases
within the State, and make such appointments and
regulations concerning the same, as shall by him
[3
be deemed proper, and be stated in such proclama-
tion.
As to same provision in penal code, see P. C, § 492.
§ 1643. (§ 1469.) Fines, how disposed of. —
All fines and forfeitures arising out of the viola-
tion of any quarantine or other sanitary regula-
tion shall be paid, after deducting the proper ex-
pense of collection, into the treasury of the city
or county, and may be expended in aid of the
quarantine and other sanitary laws, and toward
the support of the poor thereof.
§ 1644. (§ 1470.) Performance of quarantine,
how certified. — It .shall be the duty of the health
officer of any port, or to the authorized visiting
physician thereof, after a vessel shall have duly
performed quarantine, to give a certificate thereof
to the master or commander, under a penalty, for
every refusal, of one hundred dollars; and in case
of such refusal, or if there being no such health
officer or attending physician of the port or place,
such certificate shall be granted by constituted au-
thorities of such port or place; the fee for such
certificate shall be two dollars for every vessel
of more than two hundred tons, and one dollar
for every vessel for not more than two hundred
tons.
§ 1645. (§ 1471.) Fees of health officer, how
paid. — For visiting any vessel when required, and
granting a certificate of the health of the crew and
passengers on board, the fee of the health officer
or visiting physician, to be paid by the master
of such vessel before she shall be permitted- to
enter, shall be two dollars; coasting vessels com-
ing from one inlet* in the State to another inlet
in the same, excepted.
§ 1646. (§ 1472.) Smallpox hospitals— The
ordinary of each county or the corporate authori-
ties of any town or city in this State within the
limits of which the smallpox has appeared, or may
appear, are authorized and empowered to provide
a suitable hospital for those so afflicted, and to fur-
nish them with medical or any other attention
that in their judgment those afflicted may require.
See § 1633.
As to regulation for protection of health by county, see
§ 1670.
Authority to Establish. — By virtue of this section and
§§ 1633, 1670, municipalities and counties are empowered
to establish hospitals and pesthouses for persons afflicted
with the smallpox, the house established by the munici-
pality being for the care and detention of those within the
city limits, and the county pesthouse being for the care of
those who reside in the county but outside of the munici-
pality. Macon v. Bibb County, 138 Ga. 366, 75 S. I). 435.
This case arose from a controversey between the city and
county over a pest house maintained jointly by them. F,d.
Note.
Right to Seize and Convert Private House — The inferior
court may have had the power and authority, under the
law, to provide smallpox hospitals. Yet, such inferior coutt
did not have the power and authority, under the law and
constitution, to seize or impress plaintiff's private prop-
erty for that purpose. Markham v. Brown, 37 Ga. 277.
Application. — The charter of the Town of Sugar Valley,
as incorporated by the act of 1887 (Acts 1887, p. 631), when
considered in connection with the general law as embodied
in this section authorizes the mayor and council of that
town, in their corporate capacity, to employ physicians for
the purpose of treating smallpox patients within the in-
corporate limits. Sugar Valley v. Mills, 146 Ga. 210, 91
S. E\ 17.
§ 1647. (§ 1473.) Quarantine regulations. —
Such ordinary or corporate authorities may also
50 1
§ 1648
HEALTH AND QUARANTINE
§ 1651
provide proper quarantine regulations to prevent
the spread of said disease: Provided, that no per-
son shall be forced to leave his or her home to
go to the hospital aforesaid, when they are prop-
erly provided for and guarded at their own ex-
pense; said court shall not pay any expense of any
case so situated. Acts 1865-6, p. 88.
As to authority of ordinary over quarantine and health
matters, see § 4796. As to authority of state board of
health over quarantine, see § 1662.
§ 1648. (§ 1474.) Expenses. — Said ordinary or
corporate authorities shall make, or cause to be
made, a proper and just account of all expenses
accruing from such quarantine and other atten-
tion, either medical or nursing, of all they may
haye under control, and who submit to the regula-
tions of said court or corporate authorities. Acts
1865-6, p. 88.
The provision that the city shall not pay the expenses of
a person quarantined and provided for at his own home
is applicable only in cases where a suitable hospital has
oeen provided and the person afflicted has been given an
opportunity to be carried there and has insisted on being
treated at home. Smith v. Hobbs, 119 Ga. 96, 46 S. E. 963.
§ 1649. (§ 1475.) Vaccine, how distributed. —
The Governor is authorized and required to pro-
cure the necessary quantity of genuine vaccine
matter, either by purchase or manufacture, at such
reasonable compensation as he may contract for,
and have the same transmitted to the ordinaries
of each county in this State for immediate, use.
Acts 1865-6, p. 88.
There is no authority for officials in charge ot the
financial affairs of a county to purchase vaccine matter
and make the cost of the same a charge against the county.
Daniel v. Putnam County, 113 Ga. 570, 38 S. E. 980.
§ 1650. Vaccination, compulsory measures. —
All county and municipal authorities shall be au-
thorized and empowered to enact such rules, ordi-
nances, or regulations to authorize the proper of-
ficials of said municipalities or county authorities
to require, under penalty all persons at the time
located in said municipalities or counties to sub-
mit to vaccination, in the event the health officers
or the proper authorities think it advisable, for
the purpose of preventing the spread of small-
pox or any other contagious or infectious disease
within the State. Acts 1897, p. 101.
As to vaccination of children of public schools, see §
1551 (93).
§ 1650(1). Regulation of veneral diseases. —
Syphilis, gonorrhoea and chancroid, hereinafter
designated as veneral diseases, are hereby declared
to be contagious, infectious, communicable and
dangerous to the public health. It shall be un-
lawful for anyone infected with these diseases, or
any of them, to expose another to infection. Acts
1918, pp. 275, 276.
As to the penalty for the violation of this act, see §
503 (7), P. C.
§ 1650(2). Report of treatment. — Any physician
or other person who makes a diagnosis in or treats
a case of venereal disease, and any superintend-
ent or manager of a hospital, dispensary or
charitable or penal institution in which there is a
case of venereal disease, shall make report of such
case to the health authorities, according to
such form and manner as the State Board
of Health shall direct. Acts 1918, pp. 275, 276.
[3
§ 1650(3). Examination, treatment and isola-
tion.— State, county and municipal health officers or
their authorized deputies within their respective-
jurisdictions are hereby directed and empowered,
when in their judgment it is necessary to protect the
public health to make examination of persons being
or suspected of being infected with venerea'
disease to require persons infected with venereal
disease to report for treatment to a reputable physi-
cian and continue treatment until cured, or to sub-
mit to treatment provided at public expense, and
to isolate persons infected or reasonably suspected
of being infected with venereal disease. Acts 19 is,
pp. 275, 276.
§ 1650(4). Treatment of prisoners. — All persons
who shall be confined or imprisoned in any State,
county or city prison of this State may be examined
and treated for venereal disease by the health au-
thorities or their deputies. The State, county and
municipal boards of health shall have authority to
take over such portion of any State, county or city
prison as may be necessary for a board of health
hospital, wherein all persons who shall have been
confined or imprisoned and who are suffering with
venereal disease at the time of the expiration of their
terms of imprisonment shall be isolated and treated
at public expense until cured, or in lieu of such iso-
lation, such person may, in the discretion of the
board of health, be required to report for treatment
to a licensed physician or submit to treatment pro-
vided at public expense as provided in Section
1650(3). Acts 1918, pp. 275, 276.
§ 1650(5). Rules and regulations.— The State
Board of Health is hereby empowered and directed
to make such rules and regulations as shall, in its
judgment, be necessary for the carrying out of the
purposes of this Act, including rules and regulations
providing for such labor on the part of isolated per-
sons as may be necessary to provide in whole or in
part for their subsistence, and to safeguard, their
general health, and such other rules and regulations
concerning venereal diseases as it may from time to
time deem advisable. All such rules and regulations
so made shall be of force and binding upon all
county and municipal health officers and other per-
sons affected by this Act. Acts 1918, p. 277.
§ 1650(6). Prevention of blindness from gono-
coccus infection. — It shall be the duty of any person
who shall be in attendance on any childbirth to
apply to the child such prophylactic treatment as
may be prescribed by the State Board of Health to
prevent blindness from gonococcus infection. Acts
1918, p. 255.
As to the penalty for the violation of this act, see §
503 (6), P. C.
§ 1650(7). Report of inflammation of eyes. —
Any person who shall nurse or attend any infant
shall report any inflammation of the eyes of said
child that shall develop within two weeks after birth
to the local health officer or to a licensed physician.
Acts 1918 p. 255.
See § 503 (8), P. C.
§ 1651. Narcotic drugs, sale of, regulated. — It
shall be unlawful for any person, firm, or corpora-
tion to sell, furnish, or give away any cocaine,
alpha or beta eucaine, opium, morphine, heroin,
chloral hydrate, or any salt or compound of any
51]
§ 1651
HEALTH AND QUARANTINE
§ 1655
of the foregoing substances, or any preparation
or compound containing any of the foregoing sub-
stances or their salts or compounds, except upon
the original written orders or prescription of a
lawfully authorized practitioner of medicine,
dentistry, or veterinary medicine, which order or
prescription shall be dated and shall contain the
name of the person for whom prescribed, or, if
ordered by a practitioner of veterinary medicine,
shall state the kind of animal for which ordered,
and shall be signed by the person giving the pre-
scription or order. Such written order or pre-
scription shall be permanently retained on file by
the person, firm, or corporation who shall com-
pound or dispense the articles ordered or pre-
scribed, and it shall not be again compounded or
dispensed except upon the written order of the
prescriber for each and every subsequent com-
pounding or dispensing. No copy or duplicate of
such written order or prescription shall be made
or delivered to any person, but the original shall
at all times be open to inspection by the prescriber
and properly authorized officers of the law: Pro-
vided, however, that the above provisions shall
not apply to preparations containing not more
than four grains of opium, or not more than one
grain of morphine, or not more than one-fourth
grain of heroin, or not more than one-eighth
grain of alpha or beta eucaine, or not more than
twenty grains of chloral hydrate in one fluid
ounce, or, if a solid preparation, in one avoirdu-
pois ounce: Provided, also, that the above pro-
visions shall not apply to preparations containing
opium and recommended and sold in good faith
for diarrhea and cholera, each bottle or package
of which is accompanied by specific directions for
use, and a caution against habitual use, nor to
powder of ipecac and opium, commonly known as
Dover's powder, nor to liniments or ointments
plainly labeled, "For external use only." And
provided further, that the above provisions shall
not apply to sales at wholesale by jobbers, whole-
salers, and manufacturers to retail druggists or
qualified physicians or to each other, nor to sales
at retail by retail druggists to regular practition-
ers of medicine, dentistry, or veterinary medi-
cine, nor to sales made to manufacturers of pro-
prietary or pharmaceutical preparations for use in
the manufacture of such preparations, nor to sales
to hospitals, colleges, scientific or public institu-
tions. Acts 1907, p. 121.
See P. C. 459.
Purpose of Section. — This section was intended not only
to prevent traffic in narcotic drugs, but also to lessen the
evil consequent upon the habitual use of such narcotics.
Silver v. State, 13 Ga. App. 722, 79 S. E- 919.
Constitutionality. — The act of 1907, from which this sec-
tion was codified, is constitutional and did not contain dif-
ferent matter from that expressed in the title; nor did it
contain more than one subject-matter. Stanley v. State,
135 Ga. 859, 70 S. E- 591; Pinckney v. State, 9 Ga. App.
129, 70 S. E. 594.
Every Sale Not Illegal — Exceptions Must Be Negatived.
— The chief enacting clause of the act of 1907 (this section),
does not render the sale of cocaine in every instance il-
legal. Dukes v. State, 9 Ga. App. 537, 71 S. E- 921. And
the exceptions must either be expressly negatived or
negatived by necessary implication. S. C.
Prosecution in City Court. — One charged with a viola-
tion of this section and the following section, can be prose-
cuted in a city court having jurisdiction of misdemeanors,
by accusation filed therein, as well as by indictment of the
grand jury transferred to that court. Cooper v. State, 13
Ga. App. 697, 79 S. E. 908.
Penal Offense — It is a penal offense to give, furnish, or
sell any of the narcotic drugs mentioned in this section,
except upon the conditions prescribed therein. Silver v.
State, 13 Ga. App. 722, 79 S. E. 919.
Punishment.— Any person who shall violate any of the
provisions of this section on the subject of the traffic in and
sale of narcotic drugs shall be guilty of a misdemeanor. P.
C, § 459.
§ 1652. Prescriptions of habitual users. — It
shall be unlawful for any practitioner of medicine,
dentistry, or veterinary medicine to furnish to or
prescribe for the use of any habitual user of the
same any cocaine, heroin, alpha or beta eucaine,
opium, morphine, chloral hydrate, or any salt or
compound of any of the foregoing substances, or
any preparation containing any of the foregoing
substances or their salts or compounds. And it
shall also be unlawful for any practitioner of
dentistry to prescribe any of the foregoing sub-
stances for any person not under his treatment in
the regular practice of his profession, or for any
practitioner of veterinary medicine to prescribe
any of the foregoing substances for the use of
any human being: Provided, however, that the
provisions of this section shall not be construed to
prevent any lawfully authorized practitioner of
medicine from furnishing or prescribing in good
faith, for the use of any habitual user of narcotic
drugs who is under his professional care, such
substances as he may deem necessary for their
treatment, when such prescriptions are not given
or substances furnished for the purpose of evad-
ing the provisions of this and the preceding sec-
tion.
Constitutionality. — This section was codified from the act
of 1907 as was the section immediately preceding, there-
fore for constitutionality of the sections, see notes " to
preceding section.
City Court. — See note to section immediately preceding.
Evidence is admissible showing bad faith of accused prior
to trial in issuing prescriptions. Lee v. State, 8 Ga. App.
413, 69 S. E. 310.
§ 1653'. Board of pharmacy to prosecute. — It
shall be the duty of the board of pharmacy to
cause the prosecution of all persons violating the
provisions of the two preceding sections. No
prosecution shall be brought for the sale of any
patent or proprieta^ medicine containing any of
the drugs or preparations hereinbefore mentioned
until the board of pharmacy shall certify that
such medicine contains any of the said drugs or
preparations in excess of the maximum percentage
hereinbefore mentioned.
§ 1654. Who liable to prosecution. — In any
proceedings under the provisions of the three
preceding sections the charge may be brought
against any or all of the members of a partner-
ship, or against the directors or executive officers
of a corporation, or against the agent of any
person, partnership, or corporation.
One who sells morphine not on the order or prescription
of a licensed physician, dentist, or veterinary surgeon, is
guilty of a misdemeanor without reference to whether the
seller be the proprietor of a drug store, or merely the em-
ployee of such proprietor. Oppenheim v. State, 12 Ga. App.
480, 77 S. E. 652.
§ 1655. (§ 1476.) Regulations for keeping
gunpowder. — The several incorporated towns or
cities of this State, within their corporate limits,
and the ordinaries within their respective counties
(out of said corporate limits) have authority to
make and enforce all needful rules and regula-
tions touching the keeping of gunpowder, so as
[352]
§ 1656
STATE BOARD OF HEALTH
§ 1663
not to endanger the lives and property of the
citizens.
The act of a powder company in maintaining and storing
powder upon one's land is not a nuisance per se. Simp-
son v. Du Pont Powder Co., 143 Ga. 465, 85 S. E. 344.
CHAPTER 6.
State Board of Health.
§ 1656. State board of health created. — A
board to be known as the State Board of Health
is established and made one of the public institu-
tions of the State. Said board shall consist of
fifteen members, three of whom, the Secretary of
the State Board of Health, the State Superin-
tendent of Schools and the State Veterinarian,
shall be members by virtue of their offices, and
"twelve who shall be appointed by the Governor,
one from each congressional district, and a ma-
jority of whom shall be physicians and at least
two of said members shall be doctors of den-
tal surgery in the active practice of their profes-
sion; Provided, however, that the present mem-
bers of the State Board of Health shall serve as
members of the State Board of Health under the
provisions of the law until the termination of
their present terms of office." The appointment
to be made under this section shall be made by
the Governor to succeed the present members of
said board, whose terms expire January 1st,
1925. Acts 1903, p. 72; 1914, p. 124; 1923, p. 126.
Editor's Note. — This section has been amended three times,
first, by the acts of 1912 (acts 1912, p. 51) this amendment
increased the membership from twelve to thirteen; sec-
ond, by the act of 1914 (acts 1914, p. 124), this amendment
increased the membership from thirteen to fifteen and pro-
vided that the two additional members by the state super-
intendent of schools and the state veterinarian who were
to be members by virtue of their office; it also provided
that the time present members of the board should continue
in office until the expiration of their term. The act of 1923
amendment added the provision that two of the members
should be doctors of dental surgery.
§ 1657. Term of office.— The term of office of
the members first appointed shall be so arranged
that the term of two of the members shall expire
on the first day of January of each year for six
years, and subsequent appointments shall be for
the full term of six years, and any vacancy that
may occur shall be filled by appointment by the
Governor for the unexpired term.
§ 1658. Meetings of the board, quorum. —
Meetings of the board shall be semi-annual and
at such place and time as a majority of the board
may determine. The president of the board may
call special meetings in case of emergency. A
majority of the members shall constitute a quo-
rum for the transaction of business.
§ 1659. Election of president. — At the first
meeting, the board shall elect a president from the
members comprising the board.
§ 1660. Secretary, election, salary, and duties.
— At the first meeting, a secretary shall be elected.
He shall not be a member of the board. He shall be
a competent physician, and shall hold his office for
six years unless sooner removed by a majority
vote of the entire board for failure to properly
perform the duties of his office. The secretary
shall receive a salary of two thousand dollars a
year; he shall keep his office in Atlanta, and shall
Ga. Code— 12 [ 3,
keep a record of the transactions of the board; be
.shall be the custodian of all papers, books, docu-
ments, and other property belonging to the board,
and he shall perform such duties as the board
may prescribe.
§ 1661. Salaries and expenses. — The members
of the board shall receive no salary, but each
member shall receive $5.00 per day and necessary
traveling and hotel expenses when on actual duty
by order of the board, with the approval of the
Governor, or attending the meetings of the board.
§ 1662. Powers and duties of the board. — The
State board of health shall have supervision of all
matters relating to the preservation of the life and
health of the people of the State. It shall have
supreme authority in matters of quarantine, and
may declare and enforce it when deemed neces-
sary. It shall make and enforce reasonable orders
or regulations for the prevention of the spread of
contagious or infectious diseases. It shall be the
duty of all local boards of health and the public
and municipal officers of this State to enforce such
quarantine and sanitary rules and regulations as
may be adopted by the State board; and upon
failure of any such officer to obey the quarantine
and sanitary rules and regulations adopted by that
board, such person shall be subject to a fine of
not more than fifty dollars. The State board of
health shall make careful inquiry as to the cause
of diseases and especially when contagious, infec-
tious, epidemic, or endemic, and take prompt ac
tion to control and suppress it. It shall be the
duty of the board to collect and preserve records
of births and deaths and report the same, together
with such other useful information, annually, to
the Governor. It shall respond promptly when
called upon byr the State or local government and
the municipal and township boards of health to in-
vestigate and report upon the wrater supply, sew-
erage, disposal of excreta, or ventilation of any-
place or public buildings. It shall not have powe"
to supersede municipal boards of health where
the same are properly maintained, but shall ace
in harmony with said local boards of health. It is
made the duty of the State board of health to en-
force the provisions of Chapter 5, relating to
health and quarantine, in so far as the same may
be done without violating any of the provisions
relating to the duty of local boards of health; and
the fines and forfeitures arising from the convic-
tion of any person violating any of the laws of
health and quarantine now of force in this State,
or any violation of any reasonable rules and reg-
ulations for the protection of the public health
of this State promulgated by the State board,
shall be paid into the treasury of the city or
county where said conviction was had, and be
expended in aid of the quarantine and other sani-
tary laws.
See §§ 1634, 1639, 1647.
The act of 1903 (acts 1903, p. 72) creating the state board
of health, not declaring the board to be a corporation, and
not conferring upon the board as such, nor its member?
the right to sue, no suit can be brought in the names of
the board in an alleged representative capacity, relating to
matters within jurisdiction of the board. Woodward v.
Westmoreland, 124 Ga. 529, 52 S. E- 810.
§ 1663. Diphtheria antitoxine, distribution of.
— The State board of health shall ship and keep
with the ordinaries a reasonable supply of diph-
§ 1664
COUNTY SANITARY REGULATIONS
§ 1674
theria antitoxine for the purpose of supplying the
needs of the physicians in each county of this
State, for charitable purposes only, and shall keep
the proper dates on all packages so shipped, and
the ordinaries are authorized and" directed to turn
over to the authority of all charity and city hospi-
tals of each county as demands are made by them,
for the treatment of diphtheria in said hospitals,
such amounts as they may need. Acts 1909, p.
130.
§ 1664. Sale of antitoxine by ordinaries. — The
ordinaries of each county, while being required
to furnish antitoxine for charitable purposes only,
are authorized to furnish antitoxine to purchasers
of same, who are unable to purchase antitoxine
from the registered pharmacists in their county,
at a price at the regular retail price at which
said dealers usually sell first-class antitoxine, as
conforms to the United States Pharmacopoea re-
quirements.
§ 1665. Proceeds of sales. — The revenue de-
rived from the sale of antitoxine, with the excep-
tion of ten per cent, which may be deducted by
the ordinaries for their expenses, shall be returned
to the Georgia State board of Health, to be used
in the manufacturing of antitoxine.
§ 1666. Hydrophobia, prevention of. — The
State board of health is empowered and directed,
as soon as practicable, to arrange for the prepara-
tion and manufacture, in its laboratory at the
capitol, of material necessary for the treatment
and prevention of hydrophobia according to the
method of Pasteur, and to keep constantly on
hand the necessary material sufficient in quantity
to meet the requirements that any exigency may
demand, and to distribute the same free of cost
to physicians and surgeons over the State for the
treatment of such of their patients as have been
bitten by an animal suffering with rabies. Acts
(906, p. 112.
§ 1667. Rules and regulations of the board. —
The board shall have authority to make such rules
and regulations as are necessary to carry into ef-
fect the scope and purpose of this Chapter, and
especially such reasonable rules and regulations
for the establishment, maintenance, and enforce-
ment of quarantine regulations as the board in
its discretion may deem necessary, not in conflict
with the laws of the State. Act 1903, p. 72.
§ 1668. Report of local board. — It shall be the
duty of the local boards of health, and of physi-
cains in localities where there are no health au-
thorities, to report to the State board of health,
promptly upon the discovery thereof, the existence
of any of the following diseases, to wit: Asiatic
cholera, yellow fever, scarlet fever, smallpox, dip-
theria, typhus or typhoid fever, and such other con-
tagious or infectious diseases as the State board of
health from time to time may specify; and when
1 any contagious or infectious disease shall become
or threaten to become, epidemic in any county,
city, village or hamlet, and the local authorities
shall neglect or refuse to enforce sufficient meas-
ure for its prevention, the State board of health
may appoint a medical or sanitary officer with
such assistants as he may require, and it shall be | commissioners of the several counties of this State,
[354]
the duty of such officer to enforce the orders or
regulations of the State board.
§ 1669. Annual report of State board.— It shall
be the duty of the State board of health to make an-
nual reports to the Governor of the State on or be-
fore the first day of January of each year, which
shall be for the preceding calendar year; and such
report shall include so much of the proceedings of
the board, and such information concerning vital
statistics, such knowledge respecting diseases, and
such instructions on the subjects of hygiene as may
be thought useful by the board for dissemination
among the people, with such suggestions as to
legislative action as it may deem necessary.
CHAPTER 7.
County Sanitary Regulations, Boards of Health,
Sanitary Districts, Cemeteries, Hospitals,
etc., Contracts for Sanitation.
§ 1670. Regulations by county authorities. — The
county authorities of the several counties who
have charge of county matters, being the ordinary
or county commissioners, as the case may be,
shall have full power and authority to adopt,
enact, establish, and maintain all such rules and
regulations, not inconsistent with the laws and
Constitution of this State and of the United
States, as they may deem necessary and proper
for protecting the health of their respective coun-
ties, and for preventing the introduction, genera-
tion, and spread of infectious and contagious
diseases therein: Provided, that such rules and
regulations shall not apply to any incorporated
city or town of this State. Acts 1901, p. 61.
As to establishment of hospitals, see §§ 1633, 1646.
Editor's Note. — By virtue of this section and §§ 1633,
1646, municipalities and counties are empowered to estab-
lish hospitals and pesthouses for persons afflicted with small-
pox, the house established by the municipality being for the
case and detention of those within the city limits, and the
county pesthouses being for the care of those who reside
in the county, but outside of the municipality. Macon v.
Bibb County, 138 Ga. 366, 75 S. E. 435. This case arose
from a controversy between a city and county over the
joint maintenance of a pesthouse.
See § 1676 (1), creating county board of health and chang-
ing the law of this section.
§ 1671. Rules may be changed. — Said county
authorities shall have power and authority to alter,
amend, add to, or repeal such rules and regulations,
from time to time, as they may deem necessary and
proper for the purpose of this Chapter.
§ 1672. Rules must be approved and advertised.
— Such rules and regulations as may be established
for any county, under the provisions of this Chapter,
and any amendments or alterations thereof, before
the same shall have the force of law, shall have the
written approval of not less than three reputable
physicians of the county, and shall be posted at the
court-house door of the county, and also published
at least once in the newspaper of the county in
which the sheriff's notices are advertised.
§ 1673. Expenses paid out of county treasury. —
All cost and expense necessary and proper for
carrying out the provisions of this Chapter shall be
paid out of the county treasury.
§ 1674. Regulations by certain counties. — The
§ 1675
COUNTY SANITARY REGULATIONS
§ 1676(4)
having therein a city with a population of not less
than 54,000 nor more than 75,000 inhabitants, shall
have full power and authority within the respective
limits thereof but without the corporate limits of
any incorporated city or town, to adopt, establish,
maintain, change, alter, substitute, abolish, repeal,
and enforce all such rules and regulations as they
may from time to time, in their discretion, deem
necessary for the sanitation of said counties, or for
the sanitation of the inhabitants thereof: Provided,
such rules and regulations, before their promulga-
tion, shall have been approved in writing by three
reputable physicians who reside in the county. Acts
1909, p. 135.
As to punishment for violating this section, see P. C,
§ 503.
§ 1675. Advertisement of rules. — Such rules and
regulations shall be promulgated by advertising the
same once a week for four weeks in the newspaper
in which the advertisements by the sheriff of said
county are published.
As to punishment for violating this section, see P. C,
§ 503.
§ 1676. Enforcement of rules. — For effectually
carrying out such rules and regulations, said county
authorities may employ such officers, agents, or
employees, and incur such expenses as they may
deem necessary, which salaries, compensation,
and expenses shall be paid out of the county
treasury as are other county expenses.
§ 1676(1). County board of health; member-
ship; powers; meetings; compensation. — A county
board of health for each county in the State be, and
the same is, hereby created, composed of three
persons, two of whom shall be members of such
board by virtue of their offices, to-wit. : the county
superintendent of schools and the chairman of the
board of roads and revenues of the county, or in
counties having no such board the ordinary of said
county, and one reputable physician elected by the
grand jury of the county at the session of the supe-
rior court for said county next preceding the re-
gular January session of the county board of health
of said county, or at any succeeding session of said
court. The physician so elected shall hold office for
a term of four years, and until his successor is
elected and qualified. All vacancies shall likewise be
filled by elections by the grand jury, and the per-
son so elected shall hold office for the remainder of
the term and until his successor is elected and quali-
fied. Said county board of health shall have super-
vision over all matters relating to health and
sanitation in their respective counties, with
authority to declare and enforce quarantine therein
subject to the provisions of this Act, and all the
powers and authority now vested in the county
authorities by Chapter 7 governing sanitary regu-
lations by county authorities embraced in Sections
1670 to 1676, inclusive, of the Code of 1910, are
hereby conferred upon and vested in the county
boards of health created and established under
provisions of this Act. Said county boards of health
shall hold their regular sessions on the first Thurs-
days of January, April, July and October in the
county court-house, and may also meet in extra
session at any time for county health purposes, or
when an emergency or necessity may require same.
The members of said boards shall receive as their
[ 35;
compensation the sum of two dollars per diem while
actually engaged in the performance of the duties of
said board out of the funds of said county appro-
priated for quarantine and sanitation. Acts 1914,
pp. 124, 125.
Editor's Note. — This section changes the law of § 1<>J(J.
§ 1676(2). Following sections made operative
or suspended by grand juries. — The following pro-
visions of this Act embodied in Sections 1676(3)-
1676(13) shall become operative in any county only
after the recommendation of two successive grand
juries, but on such recommendation it shall become
obligatory on the county boards of health and the
county boards of roads and revenues and, in coun-
ties having no such boards, upon the ordinary of
said county to carry out the provisions of this Act.
The operations of said sections of this Act shall like-
wise be suspended in any county upon the recom-
mendation of two successive grand juries of said
county. Acts 1914, pp. 124, 126.
§ 1676(3). State sanitary districts.— For the
purpose of carrying out the provisions of this Act
the State shall be divided into sanitary districts, as
follows: Each county shall constitute a sanitary
district, except that two or more counties each
having a population of less than thirty-seven
thousand inhabitants, may be combined into one
sanitary district; provided, that the total population
of the counties so combined does not exceed
seventy-five thousand inhabitants. Said combina-
tion of counties into a joint sanitary district shall be
made by State Board of Health upon the recom-
mendation and consent of the county boards of
health of the counties concerned. The last preceding
United State decennial census shall be taken as a
basis for computation of population in all cases
under this Act. Acts 1914, pp. 124, 126.
§ 1676(4). District health commissioner; how
selected; suspension. — In every such sanitary dis-
trict there shall be appointed a district commissioner
of health for a term of four years, provided, that, in
counties having therein a city which now has or
may hereafter have a population of not less than
60,000 nor more than 150,000, the county board of
health may appoint the health officer of any such
city the district commissioner of health in and for
said county, at such salary as may be agreed, which
salary, however, together with all other expenses
incurred in and about the discharge of his duties,
shall be only and by and with the approval thereof,
previously obtained, of the county officers in charge
of levying taxes, and all such expenses, including a
fair part of the salary of said commissioner, incur-
red for or in regard to the public schools or their
scholars shall be paid out of funds raised for neces-
san- sanitation. For a county district the appointing
board shall be the county board of health, and for
districts composed of more than one county the
appointing board shall be composed of the boards
of health of the counties composing said district,
who shall meet in joint session for said purpose.
The district commissioners of health shall be ap-
pointed from an eligible list furnished by the secre-
tary of the State Board of Health. This list shall
contain the names of those who have passed a
satisfactory examination by hygiene and sanitation
and State health laws, and certain books and reports
§ 1676(5)
COUNTY SANITARY REGULATIONS
§ 1676(7)
may be prescribed by the examining board as the
basis of such examinations. The secretary of the
State Board of Health shall, with the aid of a
committee from the State board examine all appli-
cants for the position of district health commis-
sioner under rules prescribed by the State board
and the provisions of this Act, and he shall super-
vise the work of all district commissioners of health,
and shall have the authority to suspend such com-
missioner for incompetency, wilful neglect of duty,
immorality or the commission of a crime involving
moral turpitude, with the right of appeal by the
party so suspended to the State board, whose deci-
sion shall be final. No person shall be examined
except a licensed physician, able bodied, temperate
and of good moral character. The examining board
shall prepare a list of questions on the several sub-
jects upon which the applicants shall be examined,
and send the same to the county superintendents of
education, under whose supervision the examina-
tions shall be held. The applicant shall sign his
examination paper by number, and in a sealed
envelope accompanying said paper shall give his
name and the number he has adopted, so that his
name shall not be known until after the board of
•examiners shall have passed upon the question of
his admission or rejection. The board of examiners
shall prescribe and fix a certain standard percent-
age for passing such examination; provided, that
each person applying for examination shall be a
resident of the State, and shall pay in advance to
the secretary of the State Board of Health the
sum of five dollars as an examination fee. All
such fees shall be covered into the general fund
of the State. Each person passing such examina-
tion shall be entitled to a certificate signed by
the secretary of the State Board of Health, under
the seal of the State Board of Health, which shall
be conclusive of the facts stated herein as to
such examination and qualifications. The said
secretar}'- of the State Board of Health shall, as
soon as the results of an examination have been
arrived at, file a copy thereof in his office showing
the persons who have been passed, and at the
same time send by mail a complete list of those
who have passed to the chairman of each county
board of health within the State. Regular ex-
aminations shall be held by the board in the
months of October and April of each year; and
especial examinations may be held by the secre-
tary of the State Board of Health to fill vacancies,
and he may issue a certificate which will hold
good until the next regular examination, No
examination fee shall be required of one holding
a temporary certificate, provided same was paid
at the time of standing the special examination.
Acts 1014, pp. 124, 127; 1917, p. 106.
§ 1676(5). Appointment of commissioner; salary;
term of office; vacancies; oath; bond. — The various
appointing boards herein authorized and designated
shall meet on the first Thursday in January, 1915,
and every four years thereafter to perform the
duties herein prescribed. They shall on such day
or on any adjourned day when necessary select
from the list of eligible candidates who have
passed any of the examinations herein provided
for, and appoint a health commissioner for the
districts over which jurisdiction is conferred upon
them. Such commissioners shall hold office until
their successors are appointed and qualified, unless
sooner removed, as provided herein. The ap-
pointing boards shall fix the salaries of said of-
ficers as hereinafter provided. In case a vacancy
arises in such office before the expiration of the
term, the appointing board for such district shall
meet within ten days thereafter on the call of the
chairman of said board, or of any two members
thereof, and shall fill said vacancy in the same
manner as is herein prescribed for regular ap-
pointments. Any person so appointed to fill a
vacancy shall hold office for the remainder of
the term, and until his successor is appointed and
qualified. Each health commissioner appointed
shall file his acceptance and his constitutional
oath of office with the ordinary of the county in
the county districts, and with the ordinary of the
county having the larger population in the case
of sanitary districts consisting of more than one
county. Each commissioner shall be required to
give bond in the penal sum of one thousand dol-
lars, conditioned for the faithful performance of
his duties, which bond shall be filed with the same
person, as prescribed for the filing of the oath
of office. Such acceptance, oath of office and
bond shall be filed and approved by the person
receiving same within ten days after such ap-
pointment shall have been made. Acts 1014, pp.
124, 128.
§ 1676(6). Commissioner to give all his time;
State officer; successor wihen suspended!. — Such
commissioner shall give his entire time to the
duties of his office and shall not engage in private
medical practice, or actively in any other line of
business. They shall possess the statutory
powers of a constable within the district fo.r
which appointed in all matters pertaining to pub-
lic health and in enforcement of the health laws.
They are hereby declared to be officers of the
State and may be removed for malfeasance, mis-
feasance or nonfeasance in office and for in-
competency. When a district commissioner of
health is suspended by the secretary of the State
Board of Health, as hereinbefore provided, the
appointing board for said district shall appoint a
successor to such person until he is restored bj'
law, or until his successor is appointed and quali-
fied, and the person so appointed to fill said va-
cancy shall take the oath and give the bond re-
quired by law of the regular incumbent. Acts
1914, pp. 124, 129.
§ 1676(7). Salary; levy to tax. — In sanitary
districts composed of one or more counties the
commissioner of health shall receive from the
county or counties a salary, to be fixed by the
county board of health, or by the boards of health
of the counties composing the sanitary district,
as the case may be, in the sum of not less than
twelve hundred dollars per annum. The salaries
herein provided for shall be paid out of any fund
of the county appropriated therefor, and in the
same manner as the salaries of other officers. It
shall be the duty of the board of health of each
county, at its regular January session, after com-
pliance with the provisions of Section 1676(4),
and each January session thereafter, to deter-
mine and fix the sum necessar}^ to meet the re-
6]
§ 1676(8)
COUNTY SANITARY REGULATIONS
§ 1676(10)
quirements of this Act, and they shall certify to
the board of county commissioners of roads and
revenues, or to the ordinary of the county in
counties having no such board, the amount so
fixed upon and assessed for the purposes of
sanitation and quarantine for said county, and
said taxing authority of said county shall levy
such tax at the time and in the same manner as
is now prescribed for levying taxes for other
county purposes. In districts composed of more
than one county, the appointing board shall pro-
rate the salary so fixed among the several coun-
ties comprised in such districts according to
population. It shall thereupon be the duty of
each county to contribute its portion of such
salary to the commissioner of health, and it shall
be paid out of the sum appropriated therefor and
in the same manner as the salaries of other
county officers are paid. Acts 1914, pp. 124, 129, 30.
§ 1676(8). Annual appropriation for expenses
— levy of tax. — In each sanitary district there
shall be an annual appropriation of not less than
five hundred dollars for the office and traveling
expenses of the commissioner of health for carry-
ing out the purposes of this Act. This sum shall
be in addition to office rent where necessary; pro-
vided, that in sanitary districts comprised of
more than one county, each county shall con-
tribute not less than two hundred and fifty dol-
lars toward the expenses of such commissioner,
not including office rent where necessary. The
expense fund herein provided for shall in all
cases be paid to such commissioner on the first
secular day of each month, in accordance with
an estimate to be filed by the commissioner with
the treasurer of the county at the end of each
preceding month. All expenditures made by the
commissioners of health shall be submitted in
detail at the end of each month to the county
board of health of the county or counties com-
posing said district, as the case may be. It shall
be the duty of the county board of health to as-
sess an amount sufficient to carry out the pro-
visions of this Act and certify the same to the
taxing authority of said county, as aforesaid, and
such taxing authority shall levy a tax for said
purposes as aforesaid, and in the absence of an
appropriation made therefor, the salaries and ex-
penses provided for herein shall be paid out of the
general funds of such county not otherwise ap-
propriated. Acts 1914, pp. 124, 130.
§ 1676(9). Commissioner's office. — Each
county shall provide suitable quarters for the dis-
trict commissioner of health, either in the county
court-house or in rooms rented for such purpose?.
In sanitary districts composed of more than one
county, each county shall provide quarters for
said commissioner, but the commissioner may se-
lect any one of the county seats for his permanent
office, which he may equip out of district funds
provided therefor. Acts 1914, pp. 124, 131.
§ 1676(10). Duties of district commissioner. —
It shall be the duty of the district commissioner
of health to be vigilant- in the work of disease-
prevention, and the conservation of public health,
and to enforce all health laws of the State and
health ordinances of their respective localities,
together with the rules and orders of the State
Board of Health. They shall make such sanitary
[3
inspections and surveys of their districts as may
be required from time to time by the State Board
of Health, or by the county boards of health.
They are hereby authorized and invested with the
power to enter upon and inspect private property
at proper times in regard to the possible presence,
source or cause of disease, to establish quarantine
and in connection therewith to order what is rea-
sonable and necessary for the prevention and sup-
pression of disease, to close schools, churches,
theaters or any place of public assemblage, for
bid public gatherings in order to prevent or stay
epidemics, and to this end may call in the aid of
the sheriff and constables of the county, or the
police of any town or city, who shall in such cases
render him all needed assistance; they shall col-
lect statistics concerning insanty, feeble-minded-
ness, tuberculosis and other infectious diseases;
they shall inspect hotels, ■ inns, railway trains,
street cars, depots, boats and ships, and also all
places where food is sold, and shall see that all
laws pertaining to infectious and contagious dis-
eases are properly enforced. They shall inspect
at least once every six months and make a sani-
tary survey of all public buildings and institutions
in their respective jurisdictions, and shall see
that all health laws are properly enforced therein,
particularly in jails, guard-houses, chaingangs, and
other places of detention, and also shall keep a
report thereof as part of the records of their of-
fice, and shall also file a similar report with the
secretary of the State Board of Health. They
shall at least once every school year inspect and
make a sanitary survey of the buildings, grounds
and the water supply of every school within their
jurisdiction, and shall have power to close any
school when the sanitary conditions are such as
to endanger or imperil the health or life of the
pupils attending same. They shall also examine
the teachers and janitors for infectious and con-
tagious diseases, and shall also examine each
pupil, in the presence of a teacher or nurse, for
infectious and contagious disease and for intesti-
nal parasites, and for defects of eye, ear, nose,
throat, lungs, teeth and other physical defects,
and shall make a report of such inspection and
examination to the State Board of Health, to the
county board of health, and in case of incor-
porated towns and cities tc the school board of
such municipality, and in case of a pupil also to
the parent or guardian. Said commissioner shall
deliver one or more lectures to the pupils of each
school in his district at least once every school
year, and such other lectures as may be requested
by- the county board of health. Said lectures shall
be upon infectious and contagious diseases, the
part played by mosquitoes, flies and other insects
carrying or transmitting diseases, and on general
matters of health and sanitation, and upon such
other subjects as may be prescribed by the State
Board of Health or by the county boards. They
shall make a monthly report of the work done by
them, in such narrative or tabulated form as may
be required to the county boards of health and to
the State Board of Health. A permanent record
of all work done in each county shall be kept by
the district commissioner of health in form books
prescribed by the State Board of Health, which
book shall be open to public inspection and shall
be delivered by him to his successor in office. A
57]
§ 1676(11)
COUNTY SANITARY REGULATIONS
§ 1676(19)
separate record book shall be kept in each county
of the work done in that county. Acts 1914, pp.
124, 132.
§ 1676(11). Districts composed of more than
one county — powers and duties. — In sanitary dis-
tricts composed of more than one county the dis-
trict commissioner of health shall have in each
county the same power, authority and duties as
the commissioner of health in single county sani-
tary districts. In such districts the district com-
missioner of health shall divide his time in proper
ratio among the counties comprising- said district.
Every commissioner of health appointed under
the provisions of this Act shall at all times keep
himself within reach of telephone and telegraph
service where possible, and shall respond without
delay to the calls or orders of the secretary of
the State board or local boards of health or health
officers, when his assistance is required. Acts
1914, pp. 124, 133.
§ 1676(12). Municipal health officers and or-
ganizations.— The provisions of this Act shall not
be held to be inconsistent with the present laws
relating to the appointment and qualification of
the city and town health officers in the cities and
towns of this State. But the district commis-
sioner of health shall be deemed to be the su-
preme authority on all matters affecting the pub-
lic health of his district, not inconsistent with
the authority granted to the State Board of
Health. Any town or city, regardless of popula-
tion, may have a health organization, as provided
in its charter, in addition to the district commis-
sioner of health herein provided for. Otherwise,
all Acts or parts of Acts inconsistent herewith
are hereby repealed. Acts 1914, pp 124, 133.
§ 1676(13). Deputy commissioners and nurses.
— The county boards of health, or district boards
of health may employ as many deputy commis-
sioners of health as they may deem necessary to
serve the best interests of their county or district,
and may also employ visiting nurses to aid them
in the examination of school children and to in-
struct parents in matters pertaining to their chil-
dren, and to perform such other duties as may be
required of them b}^ said boards This section shall
be so construed as to allow any count}'-, whether
in a single county sanitary district, or in a joint
sanitary district, to exercise all the rights and
powers granted in this section. Acts 1914, pp.
124, 133.
§ 1676(14). Cemeteries, hospitals, etc., outside
municipalities. — In all counties in this State hav-
ing a population of one hundred and twenty-five
thousand Cl25,000), or more, the Board of County
Commissioners, or if there be no such Board, the
Ordinary of said county, shall have the power to
grant or refuse permission to establish outside of
the limits of incorporated towns, cemeteries,
hospitals, sanatorium^, or similar institutions.
Act 1910, pp. 130, 131.
As to the penalty for the violation of this act, see § 503
(2) and § 503 (3),_ P. C.
Interference by Court of Equity. — Where the power given
by this section has not been arbitrarily and capriciously
exercised, courts of equity will not interfere. But if there
is such an exercise of power, equity will interfere. No
such facts appeared in this case. Hollman v. Atlanta, etc.,
130 S. F. 814.
Applicability to Fulton County. — This section is appli-
cable to the County of Fulton, and purports to confer au-
thority upon the board of county commissioners of Fulton
County to grant or refuse the use of land outside of the
limits of incorporated towns in the County of Fulton for
burial purposes. Turner v. Atlanta, 160 Ga. 216.
Applicability to Town.— The provisions of this act relat-
ing to the establishment of cemeteries in the rural terri-
tory of certain counties specified, are not applicable to the
establishment of a cemetery by such association in the
Town of Constitution. Sell v. Turner, 138 Ga. 106.
Granting Permit to Member of Board. — Having the power
to grant or refuse permits for the location of a cemetery
under this section, it is contrary to public policy for the
board of county commissioners to grant a permit for the
location of a cemetery to one of its members, or to a com-
pany or association in which one of its members is finan-
cially interested. Hardy v. Gainesville, 121. Ga. 327 (48 S.
F. 921); Tarver v. Dalton, 134 Ga. 462 (67 S. F. 929, 29 h-
R. A. (N. S.) 183, 20 Ann. Cas. 281). Turner v. Atlanta,
160 Ga. 216, 127 S. F- 652.
§ 1676(15). Regulations. — Said county au-
thority as above stated may grant permission to
establish such institutions under such regulations
as they may deem proper for the public good.
Acts 1910, pp. 130, 131.
§ 1676(16). Such institutions, not so estab-
lished, may be abated as nuisances. — No ceme-
tery, or sanatorium, or hospital, or other similar
institution of the character indicated in this Act,
shall be established outside of the corporate limits
of any town or city in said counties, without the
permission of said county authority, and in the
event any may be so established without obtain-
ing said authority, then the parties so establish-
ing the same shall be guilty of a misdemeanor,
and such institution shall be subject to be abated
as a nuisance. Acts 1910, pp. 130, 131.
§ 1676(17). Violations of regulations punish-
able.— Should any such institution be established
as herein provided and it should not abide the
regulations provided by said county authority, the
same may be subject to be abated as a nuisance,
and the parties guilty of such violation shall be
guilty of a misdemeanor. Acts 1910, pp. 130, 131.
§ 1676(18). Such cemeteries, hospitals, etc.,
in adjoining counties. — In all cases where it is
now provided by the operation of existing laws
that cemeteries, sanatoriums, and hospitals and
similar institutions can not be established in the
rural territory of any county without the permis-
sion of the Board of County Commissioners or
Ordinary of such county, it shall be likewise un-
lawful to establish any such cemetery, sanatorium,
hospital or other similar institution in any ad-
joining county without the permission of the
Ordinary or other person or persons in charge of
county business of such adjoining county. In all
cases coming within the provisions of this Act,
the county authorities aforesaid may impose such
conditions on the permission granted as they may
deem necessary for the public good. Acts 1911,
pp. 200, 201.
As to the penalty for the violation of this act, see §
503 (4), P. C.
§ 1676(19). Penalty. — Any person or persons
establishing such cemetery or other institution
in any such adjoining county without first obtain-
ing such permission, shall be guilty of a misde-
meanor, and the said cemetery or other institution
shall be held and deemed a nuisance and may be
abated as such. Acts 1911, pp. 200, 201.
[ 358 ]
■§ 1676(20)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(2)
§ 1676(20). Contracts with cities for sanita-
tion.— Counties having a population of over 150,-
000 as determined by the present or any future
census of the United States, be and they are
hereby authorized and empowered to provide for
public sanitation by contracting with any city
within the county or with health and sanitary
organizations for the protection of the public
health and the detection, prevention and cure of
disease and for the general sanitary welfare of
the public and to appropriate money therefor. Acts
1922, p. 142.
§ 1676(21). Appropriations. — Any such county
ma)' delegate authority to or contract with any
city within the county or any health organiza-
tion or a joint committee or board, selected by
said county and representing it and the said city
and such organization, to use such funds as may
be appropriated by said count}' for the detection,
prevention, treatment and cure of disease and
for the general welfare of the health of the pub-
lic, and authority is hereby granted to such county
to make appropriations of money for such pur-
poses; it being the intent of this provision to en-
able such counties to appropriate from the funds
of such counties money for the necessary sanita-
tion of the county as herein provided. Acts 1922,
p. 142.
§ 1676(22). Acting through authorized offi-
cers.— Said counties, with respect to all things
herein mentioned, may act by and through their
officers authorized to act in such matters, whether
they be ordinaries, commissioners of roads and
revenues, or any other officer or officers whatso-
eve'r; and said cities by and through their re-
spective mayors and councils or other officer or
officers authorized to act in such matters. Acts
1922, p. 142.
§ 1676(23). Effect of Partial invalidity.— If
any provision of this Act shall be held to be un-
constitutional, such provision alone shall be in-
valid and other parts of this Act shall be unaf-
fected thereby and shall remain of full force and
effect. Acts 1922, p. 142.
CHAPTER 8.
Municipal Sanitariums for Consumptives.
§ 1677. Municipal authorities may establish a
sanitarium. — Municipal authorities may establish
a sanitarium. Authority is hereby given to mu-
nicipal authorities of any city in Georgia which
has a population of not less than fifteen thousand
inhabitants, or any city of not less than 5,000 in-
habitants located in a county which has a popula-
tion of not less than 25,000 inhabitants, to estab-
lish and maintain, either alone or in connection
with the county authorities of the county in
which such city may be located, a sanitarium for
the care, treatment and maintenance of the in-
habitants of such city or city and county affected
with tuberculosis or consumption. Such sani-
tarium may be established and maintained any-
where within the limits of said county. Acts 1909,
p. 137; 1918, pp. 112, 113.
Editor's Note. — As this section formerly read, a city had
to have a population of not less than fifty four thousand
and not more than seventy- five thousand to come within
this .section. Now, however, by the act of 1918 (acts 1918,
p. 112), this section applies to any city having a
population of fifteen thousand or any city having a popu-
lation of five thousand located in a county which has a
population of not less than twenty-five thousand.
§ 1678. Rules for their government. — The
said municipal authorities if acting alone, or in
connection with the county authorities if acting
in connection with them, are further authorized
to make rules, regulations, and orders touching
the government of such sanitarium and the care,
custody, and treatment of persons sent there.
§ 1679. Free and pay departments. — Said au-
thorities may establish two departments in said
sanitarium, one for the treatment of indigent
patients who shall be received therein and treated
free of charge; the other a pay department, where
patients shall be received and treated upon such
terms and conditions and for such price as said
authorities shall, from time to time, prescribe.
§ 1680. Expenses, how paid. — Said authorities
are hereby authorized to incur and pay out of the
public treasury the expenses necessarily incident
to the proper conduct of such an institution, and
they are hereby given full authority to employ
such physicians, surgeons, assistants, nurses, and
other employees as may be necessary for the
successful conduct of the same.
§ 1681. Trustees. — Said authority shall have
the right to create a board of trustees of such
number as they may deem best, to whom they
may delegate the active management of such in-
stitution and the making of the rules, regulations,
and orders provided for in section 1678, subject
to the approval of such authorities. Provided,
such trustees shall serve without compensation.
CHAPTER 8A.
Registration of Births and Deaths.
§ 1681(1). State Board of Health in charge-
duties. — The State Board of Health shall have
charge of the registration of births and deaths;
shall prepare the necessary instructions, forms and
blanks for obtaining and preserving such records,
and shall procure the faithful registration of the
same in each primary registration district as con-
stituted in Section 1681(3), and in the central
bureau of vital statistics at the capitol of the
State. The said board shall be charged with the
uniform and thorough enforcement of the law
throughout the State, and shall from time to
time recommend any additional legislation that
may be necessary for this purpose. Acts 1914, p.
157.
As to the validity of the provisions for pay of county
registrars, see note under § 1681 (23).
As to the penalty for the violation of this act, see § 503
(9), P. C.
§ 1681(2). Supervision of secretary — state
registrar of vital statistics — office of bureau. —
The secretary of the State Board of Health shall
have general supervision over the central bureau
of vital statistics, which is hereby authorized to
be established by said board, and which shall be
under the immediate direction of the State
registrar . of vital statistics, whom the State
Board of Health shall appoint within thirty days
after the taking effect of this law, and who shall
[359 ]
§ 1681(3)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(5).
be a medical practitioner of not less than five
years practice in his profession, and a competent
vital statistician. The State registrar of vital
statistics shall hold office for four years, and un-
til his successor has been appointed and has quali-
fied unless such office shall sooner become vacant
by death, disqualification, operation of law or
other causes. Any vacancy occurring in such of-
fice shall be filled for the unexpired term by the
State Board of Health, at least ten days before
the expiration of the term of office of the State
registrar of vital statistics, his successor shall be
appointed by the State Board of Health. The
State registrar of vital statistics shall receive an
annual salary at the rate of $1,800 from the date
of his entering upon the discharge of the duties
of his office. The State Board of Health shall
provide for such clerical and other assistants as
may be necessary for the purposes of this Act,
who shall serve during the pleasure of the board,
and shall fix the compensation of persons thus
employed within the amount appropriated there-
for by the Legislature. The custodian of the
capitol shall provide for the bureau of vital statis-
tics in the State Capitol at Atlanta, suitable of-
fices which shall be properly equipped with fire
proof vault and filing cases for the permanent
and safe preservation of all official records made
and returned under this Act. Acts 1914, pp. 157,
158.
§ 1681(3). Districts for registration. — For the
purpose of this Act the State shall be divided into
registration districts, as follows: Each city, each
incorporated town and each militia district shall
constitute a primary registration district, and that
portion of any militia district outside of the cities
and incorporated towns therein shall constitute a
separate and distinct registration district. And
provided, that the State Board of Health may
combine two or more primary registration dis-
tricts when necessary to facilitate registration
and provided that the State Board of Health shall
fill all vacancies that may occur in the office of
the local registrar, and shall establish such ad-
ditional districts and appoint local registrars for
such districts, and such appointed registrars shall
perform all the duties of a local registrar and re-
ceive such fees as are prescribed for local regis-
trars by the State Statutes, and provided that
every local registrar shall appoint a deputy local
registrar for his district. Such deputy local regis-
trar shall serve when the local registrar is not ac-
cessible for purpose of registration. Acts 1914,
pp. 157, 158; 1919, pp. 273, 274.
§ 1681(4). Local registrars. — In the cities the
city clerk shall be the local registrar, and in the
incorporated towns the town clerk shall be the
local registrar, and that in the militia districts of
the State, the justices of the peace and notary
publics and ex-officio justices of the peace shall
be the local registrars, and for that portion of the
militia districts outside of the cities and incorpo-
rated towns, therein, the justice of the peace and
notary public and ex-officio justice of the peace
shall be the local registrars under the terms of this
Act. Should there be no justice of peace or notary
public or ex-officio justice of the peace in anj'
militia district, or should both of said officials
be absent from their district, in that event, the
justice of the peace or ex-officio justice of the
peace for any adjoining militia district in said
county or of the militia district in which the
county site is situated may perform any of the
duties of the local registrar for said district re-
quired under the terms of this Act; and each
registrar shall in such cases note on each certifi-
cate, over his signature, the date of filing, and
shall forward all certificates to the local registrar
of the district within ten days, and in all cases
before the third day of the following month, and
if there be no local registrar said district shall
be forwarded to the local registrar of the militia
district in which the county site is situated, who
shall make all reports for said district to the
State registrar and shall perform other like
duties of the local registrar for such district un-
der the terms of this Act. Any local registrar,
who in the judgment of the State Board of
Health, fails or neglects to discharge efficiently
the duties of his office as set forth in this Act,
or to make prompt or complete returns of births
or death as required thereby, shall be forthwith
removed by the State Board of Health, and such
other penalties may be imposed as are provided
under Section 168'ly. And provided that in any
cit3^ or incorporated town where the health of-
ficers or other officials are in the judgment of
the State Board of Health conducting an effec-
tive registration of births and deaths, such of-
ficials may be appointed by the State Board of
Health as local registrars for such cities and
towns, and provided that said appointed local
registrars shall be subject to all the rules and
regulations as local registrars otherwise elected
or appointed. Acts 1914, pp. 157, 158: 1919, .pp.
273, 274.
§ 1681(5). Burial or removal permit required.
— The body of any person whose death occurs
in this State, or which shall be found dead there-
in, shall not be interred, deposited in a vault or
tomb, cremated or otherwise disposed of or re-
moved from or into any registration district, or
be temporarily held pending further disposition
more than seventy-two hours after death, unless
a permit for burial, removal or other disposition
thereof shall have been properly issued by the
local registrar of the registration district in which
the death occurred or the body was found. And
no such burial or removal permit shall be issued
by the registrar until where practicable, a com-
plete and satisfactory certificate of death has
been filed with him as hereinafter provided; pro-
vided, that when a dead body is transported
from outside the State into a registration district
of this State for burial, the transit or removal
permit, issued in accordance with the law and
health regulations of the place where the death
occurred, shall be accepted by the local registrar
of the district into which the body has been
transported for burial or other disposition as a
basis upon which he may issue a local burial
permit; he shall note upon the face of the burial
permit the fact that it was a body shipped in for
interment, and give the actual place of death,
and no local registrar shall receive any fee for
the issuance of permit under this Act other than
the compensation provided for in Section 1681-
(23). And provided that when a dead body is
transported from one registration district into
[ 360 ]
§ 1681(6)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(8)
another within this State, the removal permit
may be accepted by the sexton or person in
charge of the cemetery in lieu of a burial permit
at the place of burial, subject to local rules and
regulations, and provided further that this pro-
vision shall not apply to the transportation of
the dead body by common carriers, and provided
further, that any local registrar in any county in
this State shall have authority to issue any
burial or removal permit referred to in this Act,
or in the Act of 1914 codified in this chapter.
Acts 1914, pp. 157, 159; 1919, pp. 273, 275.
§ 1681(6). Stillborn child to be registered twice
— exception. — A stillborn child shall <be registered
as a birth and also as a death, and separate certifi-
cates of both the birth and death shall be filed
with the local registrar, in the usual form and
manner, the certificate to contain in the place of
the name of the child, the word "stillbirth;" pro-
vided, that a certificate of birth and a certificate
of death shall not be required for a child that has
not advanced to the fifth month of uterogesta-
tion. The medical certificate of the cause of
death shall be signed by the attending physi-
cian, if any, and shall state the cause of death as
"stillborn," with the cause of stillbirth, if known,
whether a premature birth and, if born prema-
turely, the period of uterogestation, in months
if known; and the burial or removal permit of
the prescribed form shall be required. Mid-
wives shall not sign certificates of death for still-
born children; but such cases, and stillbirth oc-
curring without attendance of either physician
or midwife, shall be treated as deaths without
medical attendance, as provided for in Section
1681(8). Acts 1914, pp. 157, 160.
§ 1681(7). Certificate of death.— The certifi-
cate of death shall contain the following items,
which are hereby declared necessary for the
legal, social, and sanitary purposes subserved by
registration records.
(1) Place of death, including State, county, in-
corporated town, village or city. If in a city, the
ward, street and house number; if in a hospital
or other institution, the name of the same to be
given instead of the street and house number. If
in an industrial camp, the name of the camp to
be given. (2) Full name of decedent. If an un-
named child, the . surname preceded by "un-
named." (3) Sex. (4) Color or race— as white,
black, mulatto (or other negro descent), Indian,
Chinese, Japanese, or other. (5) Conjugal rela-
tion— as single, married, widowed or divorced.
(6) Date of birth, including year, month, and
day. (7) Age, in years, months, and days. If
less than one day the hours or minutes. (8)
Occupation. The occupation to be reported of
any person, male or female, who had any re-
munerative employment, with the statement of
(a) trade, profession, or particular kind of work;
(b) general nature of industr}T, business or estab-
lishment in which employed (or employer). (9)
Birth place, at least State or foreign country, if
known. (10) Name of father. (11) Birth place
of father, at least State or foreign country. (12)
Maiden name of mother. (13) Birth place of
mother, at least State or foreign country, if
known. (14) Signature and address of informant.
(15) Official signature of registrar, with the date
when the certificate was filed, and registered num-
ber. (16) Date of death, year, month and day.
(17) Certification as to medical attendance on de-
cedent, fact and time of death, time last seen alive
and cause of death, with contributory (secondary)
cause of complication, if any, and duration of
each, and whether attributed to dangerous or un-
sanitary conditions or employment; signature and
address of physician or official making the medi-
cal certificate. (18) Length of residence (for in-
mates of hospitals or other institution, transients
or recent residents) at place of death and in the
State, together with the place where the disease
was contracted, if not at place of death, and for-
mer or usual residence. (19) Place of burial or
removal, date of burial. (20) Signature of under-
taker or person acting as such. The person and
statistical particulars (Item 1 to 13) shall be
authenticated by the signature of the informant,
who may be any competent person acquainted
with the facts. The statement of facts relating to
the disposition of the body shall be signed by the
undertaker or the person acting as such. The
medical certificate shall be made and signed by
the physician, if any, last in attendance on the de-
ceased, who shall specify the time in attendance,
the time he last saw the deceased alive, and the
hour of the day at which the death occurred. And
he shall further state the cause of death, so as to
show the course of the disease or sequent of
causes resulting in the death, giving first the name
of the disease causing death (primary cause) and
the contributory (secondary) cause, if any, and
the duration of each. Indefinite and unsatisfac-
tory terms, denoting only symptoms of disease or
conditions resulting from disease, will not be held
sufficient for the issuance of a burial or removal
permit, and any certificate containing only such
terms, as defined by the State registrar, shall be
returned to the physician or person making the
medical certificate for correction and more
definite statement. Causes of death which may be
the result of either disease or violence shall be
carefully defined; and if violence, the means of in-
jury shall be stated, and whether (probably ac-
cidental, suicidal, homicidal. And for the deaths
in hospitals, institutions, or if non-residents,- the
physician shall supply the information required
under this head (Item 18), if he is able to do so,
and may state where, in his opinion, the disease
was contracted. Acts 1914, pp. 157, 160, 1. 2.
§ 1681(8). Death without medical attendance.
— In case of any death occurring without medical
attendance, it shall be the duty of the undertaker
to notify the local registrar of such a death, and
when so notified the registrar shall, prior to the
issuance of the permit, inform the local health of-
ficer, if there be such officer in the district where
the death occurred, and refer the case to him for
immediate investigation and certification; pro-
vided, that when the local health officer is not a
physician, and in such cases onl\r, the registrar is
authorized to make the certificate and return from
the statement of relatives or other persons hav-
ing adequate knowledge of the facts; provided,
further, that if the registrar has reason to believe
that the death may have been due to unlawful act
or neglect, he shall then refer the case to the
coroner or other proper official for his investiga-
tion and certification. And the coroner or other
proper officer whose duty it is to hold an inquest
[361]
§ 1681(9)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(15)
on the body of any deceased person, and to make
the certificate of death required for a burial per-
mit, shall state in his certificate the name of the
disease causing death, or if from external causes,
(1) the means of death and (2) whether (prob-
ably) accidental, suicidal, or homicidal; and shall,
in any case, furnish such information as may be
required by the State registrar in order to classify
the death properly. Acts 1914, pp. 157, 162.
§ 1681(9). Procedure where death occurs;
burial or removal permit. — The undertaker, or the
person acting as undertaker, shall file the certifi-
cate of death with the local registrar of the dis-
trict in which the death occurred and obtain a
burial or removal permit prior to any disposition
of the body. He shall obtain the required per-
sonal and statistical particulars from the person
best qualified to supply them, over the signature
and address of his informant. He shall then
present the certificate to the attending physician,
if any, or to the health officer, or coroner, as di-
rected by the local registrar, for the medical cer-
tificate of the cause of death and other particulars
necessary to complete the record as specified in
Sections 1681(6) and 1681(7) and he shall then
state the facts required relative to the date and
place of burial or removal, over his signature and
with his address, and present the complete cer-
tificate to the local registrar in order to obtain a
permit for burial, removal, or other disposition of
the body. The undertaker shall deliver the burial
permit to the person in charge of the place of
burial, before interring or otherwise disposing of
the body, or shall attach the removal permit to
the box containing the corpse, when shipped by
any transportation company; said permit to ac-
company the corpse to its destination, where, if
within the State of Georgia, it shall be delivered
to the person in charge of the place of burial.
Acts 1914, pp. 157, 163, 4.
§ 1681(10). Caskets, record and report of sales.
— Every person, firm, or corporation selling a
casket, shall keep a record showing the name of
purchaser, purchaser's post office address, name
of deceased, which record shall be open to inspec-
tion of the State registrar at all times. On the
first day of each month the person, firm or cor-
poration, selling caskets in this State shall report
to the State registrar each sale for the preceding
month, on a blank provided for that purpose; pro-
vided, however, that no person firm or corpora-
tion selling caskets to dealers or undertakers only
shall be required to keep such record, nor shall
such report be required from the undertakers
when they have direct charge of the disposition
of the dead body. Acts 1914, pp. 157, 164.
§ 1681(11). Notice of law, etc., to be inclosed
in caskets sold. — Every person, firm or corpora-
tion selling caskets at retail, and not having
charge of the body, shall inclose within the casket
a notice furnished by the State registrar calling
attention to the requirements of the law, a blank
certificate of death, and the rules and regulations
of the State Board of Health concerning the
burial or other disposition of a dead body. Acts
1914 pp. 157, 164.
§ 1681(12). Disposition of body within state;
burial or removal permit. — If the interment or
in the State, the wording of the burial or removal
permit may be limited to a statement by the regis-
trar, and over his signature, that a satisfactory
certificate of death having been filed with him as
required by law, permission is granted to inter,
remove or dispose otherwise of the body, stating
the name, age, sex, cause of death, and other
necessary details upon the form prescribed by the
State registrar. Acts 1914, pp. 157, 164.
§ 1681(13). Interments, record of; return of
permits. — No person in charge of any premises
on which interments are made shall inter or per-
mit the interment or other disposition of any
body unless it is accompanied by a burial, re-
moval, or transit permit as herein provided, and
such persons shall indorse upon the permit the
date of the interment, over his signature, and
shall return all permits so indorsed to the local
registrar of his district within ten days from the
date of interment, or within the time fixed by the
local board of health. He shall keep a record of
all bodies interred or otherwise disposed of on the
premises under his charge, in each case stating
the name of each deceased person, place of death,
date of burial or disposal, and name and address of
the undertaker, which record shall at all times be
open to official inspection; provided, that the un-
dertaker or person acting as such, when burying
a body in a cemetery or burial ground having no
person in charge, shall sign the burial or removal
permit, giving the date of burial, and shall write
across the face of the permit the words "No per-
son in charge," and file the burial or removal per-
mit within ten days with the registrar of the dis-
trict in which the cemetery is located. Acts 1914,
pp. 157, 165.
§ 1681(14). Births.— The birth of each and
every child born in this State shall be registered
as hereinafter provided. Acts 1914, pp. 157, 165.
§ 1681(15).— Certificate of birth to be filed.-
Within ten days after the date of each birth, there
shall be filed with the local registrar of the dis-
trict in which the birth occurred a certificate of
such birth, which certificate shall be upon the
form adopted by the State registrar, upon advice
and consent of the State Board of Health, with a
view to procuring a full and accurate report with
respect to each item of information enumerated
in Section 1681(16).
In each case where a physician, midwife, or
person acting as midwife was in attendance upon
a birth, it shall be the duty of such person to file
in accordance herewith the certificate herein con-
templated.
In each case where there was no physician,
midwife, or person acting as midwife, in attend-
ance upon the birth, it shall be the duty of the
father or the mother of the child, the householder
or the owner of the premises where the birth oc-
curred, or the manager or superintendent of the
public or private institution where the birth oc-
curred, each in the order named, within ten days
after the date of such birth, to report to the local
registrar the fact of such birth. In such case,
and in case the physician, midwife, or person act-
ing as midwife, in attendance upon the birth is
unable, by diligent inquiry to obtain any item or
items of information contemplated in Section
other disposition of the body is to be made with- 1681(16), it shall be the duty of the local registrar
[362 ]
§ 1681(16)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(19)
to secure from the person so reporting, or from
any other person having the required knowledge,
such information as will enable him to prepare
the certificate of birth herein contemplated, and
it shall be the duty of the person reporting the
birth or who may be interrogated in the relation
thereto to answer correctly and to the best of his
knowledge all questions put to him by the local
registrar which may be calculated to elicit any
information needed to make a complete record of
the birth as contemplated by said Section 1681-
(16), and it shall be the duty of the informant as
to any statement made in accordance herewith to
verify such statement by his signature, when re-
quested *so to do by the local registrar. Acts
1914, pp. 157, 165, 166.
§ 1681(16). What certificate of birth to con-
tain.— The certificate of birth shall contain the
following items, which are hereby declared neces-
sary for the legal, social and sanitary purposes
subserved by registration records.
(1) Place of birth, including State, county, in-
corporated town, village or city. If in a city, the
ward, street and house number; if in a hospital or
other institution, the name of the same to be
given instead of the street and house number. (2)
Full name of child. If the child dies without a
name, before the certificate is filed, enter the
words "Died unnamed." If the living child has
not yet been named, at the date of filing certifi-
cate of birth, the space for full name of child is
to be left blank, to be filled out subsequently by
a supplemental report, as hereinafter provided.
(3) Sex of child. (4) Whether a twin, triplet, or
other plural birth. A separate certificate shall be
required for each child in case of plural births
(5) For plural births, number of each child in
order of birth. (6) Whether legitimate or illegiti-
mate. (7) Date of birth including year, month
and date. (8) Full name of father; provided,
that if the child is illegitimate, the name of the
putative father shall not be entered without his
consent, but the other particulars relating to the
putative father (Items 9 to 13) may be entered if
known, otherwise as "unknown." (9) Residence
of father. (10) Color or race of father. (11)
Age of father at last birthday, in years. (12)
Birth place of father, at least State, or foreign
country, if known. (13) Occupation of father.
The occupation to be reported if engaged in any
remunerative employment, with the statement of
(a) trade, profession, or particular kind of work;
(b) general nature of industry, business or estab-
lishment in which employed (or employer). (14)
Maiden name of mother. (15) Residence ot
mother. (16) Color or race of mother. (17)
Age of mother at last birthday, in years. (18)
Birth place of mother, at least State or foreign
country, if known. (19) Occupation of mother.
The occupation to be reported if engaged in any
remunerative employment, with the statement of
(a) trade, profession, or particular kind of work,
(b) general nature of industry, business or estab-
lishment in which emploj^ed (or employer). (20)
Number of children born to this mother, includ-
ing present birth. (21) Number of children of
this mother, living. (22) The certification of the
attending physician or midwife as to the attend-
ance at birth, including statement of year, month,
day (as given in Item 7) and hour of birth, and
whether the child was born alive or stillborn.
This certification shall be signed by the attending
physician or midwife, with the date of signature
and address; if there is no physician or midwife
in attendance, then by the father or mother of the
child, householder, owner of the premises or
manager or superintendent of public or private in-
stitution where the birth occurred, or other com-
petent person, whose duty it shall be to notify the
local registrar of such birth, as required by Sec-
tion 1681(15). (23) Exact date of filing in office
of local registrar, attested by his official signature,
and registered number of birth, as hereinafter
provided. Acts 1914, pp. 157, 167, 168.
§ 1681(17). Supplemental report of name. —
When any certificate of birth of a living child is
presented without the statement of the given
name, then the local registrar shall make out and
deliver to the parents of the child a special blank
for the supplemental report of the given name of
the child, which shall be filled out as directed, and
returned to the local registrar as soon as the child
shall have been named. Acts 1914, pp. 157, 168.
§ 1681(18). Physicians, midwives and under-
takers must register. — Every physician, midwife,
and undertaker shall, without delay register his or
her name, address and occupation with the local
registrar of the district in which he or she resides,
or may hereafter establish a residence; and shall
thereupon be supplied by the local registrar, with
a copy of this Act, together with such rules and
regulations as may be prepared by the State
registrar relative to its enforcement. Within
thirty days after the close of each calendar year
each local registrar shall make a return to the
State registrar of all physicians, midwives, or un-
dertakers who have been registered in his district
during the whole or any part of the preceding
calendar year; provided, that no fee or other com-
pensation shall be charged by local registrars, to
physicians, midwives or undertakers for regis-
tering their names under this section or making
returns thereof to the State registrar. Acts 1914,
pp. 157, 168.
§ 1681(19). Blanks and forms; alteration of
certificates; filing and index; information as to
communicable diseases. — The State registrar shall
prepare, print and supply to all registrars all
blanks and forms used in registering, recording
and preserving the returns, or in otherwise carry-
ing out the purposes of this Act, and shall pre-
pare and issue such detailed instructions as may
be required to procure the uniform observance of
its provisions and the maintainance of a perfect
system of registration; and no other blanks shall
be used than those supplied by the State registrar.
He shall carefully examine the certificates re-
ceived monthly from the local registrars, and if
any such are incomplete or unsatisfactory he shall
require such further information to be supplied as
may be necessary to make the records complete
and satisfactory. And all physicians, midwives.
informants, or undertakers and all other persons
having knowledge of the facts are hereby required
to supply, upon a form provided by the State
registrar or upon the original certificate, such in-
formation as they may possess regarding any
birth or death upon demand of the State registrar,
in person, by mail, or through the local registrar;
[ 363 ]
§ 1681(20)
REGISTRATION OF BIRTHS AND DEATHS
§ 1681(23)
provided, that no certificate of birth or death,
after its acceptance for registration by the local
registrar, and no other record made in pursuance
of this Act, shall be altered or changed in any re-
spect otherwise than by amendments properly
dated, signed and witnessed. The State registrar
shall further arrange, bind and permanently pre-
serve the certificates in a systematic manner, and
shall prepare and maintain a comprehensive and
continuous card index of all births and deaths
registered, said index to be arranged alphabeti-
cally, in case of deaths, by names of decedents,
and in the case of births, by the names of fathers
and mothers. He shall inform all registrars what
diseases are to be considered infectious, contagi-
ous or communicable, and dangerous to the pub-
lic health, as decided by the State Board of
Health, in order that when deaths occur from
such diseases, proper precautions may be taken
to prevent their spread. Acts 1914, pp. 157,
168, 9.
As to the penalty for the violation of this act, see ?
503 (8), P. C.
§ 1681(20). Birth certificates as evidence. — At
the expiration of six years after the approval of
this Act, certified copies of birth registration cer-
tificates shall be accepted by the public school au-
thorities of this State as prima facie evidence of
age of children registering for school attendance,
and no other proof shall be required. At the ex-
piration of fourteen years from the passage of this
Act, certified copies of birth registration certifi-
cates shall be required by all factor}' inspectors,
and employers of youthful labor as prima facie
proof of age, and no other proof shall be required
from children born in this State, or States which
for fourteen years previous to the date of such
certificate have had registration laws essentially
identical with this Act; provided, that when it is
not possible to secure such certified copy of birth
registration certificate for any child, the school
authorities and factory inspectors may accept as
secondary proof of age any competent evidence
by which the age of persons is usually established.
Acts 1914, pp. 157, 170.
§ 1681(21). Preservation of records; furnishing
transcripts; fees. — If any cemetery company or
association or any church or historical society or
association, or any other company, society, or as-
sociation or any individual is in possession of any
record of births and deaths which may be of value
in establishing the genealogy of any resident of
this State, such company, society, association, or
individual may file such record, or a duly au-
thenticated transcript thereof, with the State
registrar, and it shall be the duty of the State
registrar to preserve such record or transcript and
to make a record and index thereof in such forms
as to facilitate the finding of any information con-
tained therein. Such record and index shall be
open to inspection by the public, subject to such
reasonable conditions as the State registrar may
prescribe. If any person desires a transcript of
any record filed in accordance herewith, the State
registrar shall furnish the same upon application,
together with a certificate that it is a true copy of
such record, as filed in his office, and for his serv-
ices in so furnishing such transcript and certifi-
cate he shall be entitled to a fee of ten cents per
folio (fifty cents per hour or fraction of an hour
necessarily consumed in making such transcript)
and to a fee of twenty-five cents for the certifi-
cate, which fee shall be paid by the applicant.
Acts 1914, pp. 157, 170.
§ 1681(22). Duties of local registrars.— Each
local registrar shall supply blank forms of certifi-
cates to such persons as require them. Each local
registrar shall carefully examine each certificate
of birth or death when presented for record, in
order to ascertain whether or not it has been
made out in accordance with the provisions of
this Act and the instructions of the State regis-
trar. And if any certificate of death is incomplete
or unsatisfactory, it shall be his duty to call atten-
tion to the defects in the return and to withhold
the burial or removal permit until such defects
are corrected. All certificates either of birth or
of death, shall be written legibly, in durable black
ink, and no certificate shall be held to be complete
and correct that does not supply all the items of
information called for therein, or satisfactorily
account for their omission. If the certificate of
death is properly executed and complete, he shall
then issue a burial or removal permit to the un-
dertaker; provided, that in case the death oc-
curred from some disease which is held b}r the
State Board of Health to be infectious, contagious
or communicable or dangerous to the public-
health, no permit for the removal or other dispo-
sition of the body shall be issued by the registrar,
except under such conditions as may be pre-
scribed by the State Board of Health. If a cer-
tificate of birth is incomplete, the local registrar
shall immediately notify the informant, and re-
quire him to supply the missing items of infor-
mation if they can be obtained. He shall num-
ber consecutively the certificates of birth and
death, in two separate series, beginning with
number 1 for the first birth, and the first death
of each calendar year, and sign his name as
registrar in attest of the date of filing in his of-
fice. He shall also make a complete and ac-
curate copy of each birth and each death certifi-
cate registered by him in a record book supplied
by the State registrar, to be preserved perma-
nently in his office as the local record in such
manner as directed by the State registrar. And
he shall, on the tenth day of each month, trans-
mit to the State registrar all original certificates
registered by him for the preceding month. And
if no births or no deaths occur in any month,
he shall on the tenth day of the following
month, report that fact to the State registrar,
on a card provided for that purpose. Acts 1914,
pp. 157, 170'.
§ 1681(23). Fees of local registrars. — Each
local registrar shall be paid the sum of fifty cents
for each birth certificate and each death certifi-
cate properly and completely made out and
registered with him, and correctly recorded and
promptly returned by him to the State registrar
as required by this Act, unless the local regis-
trar shall already be acting as such in cities
where their compensation is otherwise fixed b}r
law. And in case no births and no deaths were
registered during any month local registers shall
be entitled to be paid the sum of twenty-five
cents for each report to the effect, but only if
such report be made promptly as required by
this Act. All amounts payable to a local regis-
[ 364 ]
§ 1681(24)
PRACTICE OF MEDICINE, HOW REGULATED
§ 1632
trar under the provisions of this section shall be
paid by the treasurer of the county in which the
registration district is located upon the certifica-
tion of the State registrar, and the State regis-
trar shall annually certify to the treasurers of
the several counties the number of births and
deaths properly registered, with the names of
the local registrars and the amounts due each
at the date fixed herein. And provided that the
State Registrar, at the discretion of the State
Board of Health, may issue the aforesaid state-
ment at periods of time less than one year, and
the County Treasurer shall pay the amounts due
when such statement is issued. Acts 1 914, pp.
157, 171; 1919, pp. 273, 275.
Editor's Note. — It was held by the Supreme Court in
Smith v. State, 160 Ga. 857, 129 S. E. 542, that under the
constitution, § 6562, the general assembly does not have
power to provide for the payment of local registrars out
of county funds as provided in this section, because the
duties do not fall within the class designated by such sec-
tion of the constitution as "necessary sanitation." There-
fore so much of this act as authorizes such payment for
services rendered hereinunder is unconstitutional and void.
The legislature has no power to require the counties to pay
out of county funds the expenses of a state department or
state bureau.
§ 1681(24). Certified copies of records; fees.
— -The State registrar shall, upon request, supply
to any applicant, a certified copy of the record
of any birth or death registered under the pro-
visions of this Act, for the making and certifica-
tion of which he shall be entitled to a fee of fifty
cents, to be paid by the applicant; provided, that
the United States Census Bureau may obtain
without expenses to the State, transcripts or cer-
tified copies of births and deaths without pay-
ment of the fees herein prescribed. And any
such copy of the record of a birth or death when
properly certified by the State Registrar shall be
a prima facie evidence in all courts and places of
facts therein stated. For any search of the files
and records when no certified copy is made, the
State registrar shall be entitled to a fee of fifty
cents for each hour or fractional part of an
hour of time of search, said fee to be paid by ap-
plicant. And the State registrar shall keep a
true and correct account of all fees by him re-
ceived under these provisions, and turn the
same over to the State Treasurer. Acts 1914,
pp. 157, 172.
§ 1681(25). Violations of the law; penalty. —
Any person, who for himself or for an officer,
agent or employee of any other person, or of
any corporation or partnership, (a) shall inter,
cremate or otherwise finally dispose of the dead
body of a human being, or permit the same to be
done, or shall remove such body from the pri-
mary registration district in which the death oc-
curred, or the body was found, without the au-
thority of a burial or removal permit issued by
the local registrar of the district in which the
death occurred or in which the body was found;
or (b) shall refuse or fail to furnish correctly,
any information in his possession, or shall furn-
ish false information affecting any certificate or
record, required by this Act; or (c) shall will-
fully alter, otherwise than is provided by Sec.
1681(21) or shall falsify any certificate of birth or
death, or any record established by this Act; or
(d) being required by this Act to fill out a cer-
tificate of birth or death and file the same with
the local registrar, or deliver it upon request, to
any person charged with the duty of filing the
same, shall fail, neglect, or refuse to perform
such duty in the maimer required by this Act; or
(e) being a local registrar, deputy registrar or
sub-registrar, shall fail, neglect or refuse to per-
form his duty as required by this Act and by the
instructions and direction of the State registrar
thereunder, shall be deemed guilty of a misde-
meanor and, upon conviction thereof shall lor
the first offence be lined not less than live dol-
lars ($5.00), nor more than fifty dollars ($50.00),
and for each subsequent offence not less than ten
dollars ($10.00), nor more than one hundred
($100.00) dollars, or be imprisoned in the county
jail not more than sixty days, or be both lined
and imprisoned in the discretion of the court.
Acts 1914, pp. 157, 172.
§ 1681(26). Enforcement of the law; duty of
local registrars and State registrar. — Each local
registrar is hereby charged with strict and
thorough enforcement of the provisions of this
Act in his registration district, under the super-
vision and direction of the State registrar, and he
shall make an immediate report to the State reg-
istrar of any violation of this law coming to his
knowledge, by observation or upon complaint
of any person, or otherwise.
The State registrar is hereby charged with the
thorough and efficient execution of the provi-
sions of this Act in every part of the State, and
is hereby granted supervisory power over local
registrars, deputy local registrars, and sub-regis-
trars, to the end that all its requirements shall
be uniformly complied with. The State regis-
trar, either personally or by an accredited rep-
resentative, shall have authority to investigate
cases of irregularity or violation of law and all
registrars shall aid him upon request in such in-
vestigations. When he shall deem it necessary,
he shall report cases of violation of any of the
provisions of this Act to the prosecuting at-
torney of the county, with the statement of the
facts and circumstances; and wrhen any such
case is reported to him by the State registrar,
the prosecuting attorney shall forthwith initiate
and promptly fellow up the necessary court pro-
ceedings against the person or corporation re-
sponsible for the alleged violation of law. And
upon request of the State Registrar, the attorney-
general shall assist in the enforcement of the
provisions of this Act. Acts 1914, pp. 157, 173.
As to the penalty for the violation of this act. see §
503 (9), P. C.
CHAPTER 9.
Practice of Medicine, How Regulated.
ARTICLE 1.
Practitioners.
§ 1682. (§ 1477.) Who may practice.— No per-
son shall practice medicine within this State,
unless he has been heretofore legally authorized
so to do, or shall be hereafter authorized so to do
by a diploma from an incorporated medical col-
lege, medical school, or university, or has, after
attending one or more full terms at a regularly
chartered medical college, been in active practice
[ 365 ]
§ 1683
STATE BOARD OF MEDICAL EXAMINERS
§ 1697(1)
of medicine since the year 1866, or who was by
law authorized to practice medicine in 1866, or
shall have been licensed by the medical board.
Acts 1880-1, pp. 172, 173; 1882-3, p. 68; 1894, p. 86.
See notes to § 1683.
For treatment of former provisions of this section, see 10
Enc. Dig. 346.
No City License Required.— When a physician is licensed
by the state to practice medicine, a city can not require
him to take out another license to practice in that city.
Mayor of Savannah v. Charlton, 36 Ga. 460.
Compensation Where No License. — Notes, bonds and
other assumptions made to a person as a physician without
a license are void. C.oyle v. Campbell, 10 Ga. 570.
Proof as to Medical College.— To prove a diploma given
to a physician by a medical college of another state the
legal existence of the college must be produced. Hunter
v. Blount, 27 Ga. 76; Parkerson v. Burke, 59 Ga. 100.
§ 1683. (§ 1478.) "Practice medicine" defined.
— B'or the purpose of this Chapter, the words
"practice medicine" shall mean, to suggest, recom-
mend, prescribe or direct, for the use of any per-
son, any drug, medicine, appliance, apparatus, or
other agency, whether material or not material,
for the cure, relief, or palliation of any ailment or
disease of the mind or body, or for the cure or
relief of any wound, fracture, or other bodily in-
jury or any deformity, after having received or
with the intent of receiving therefor, either di-
rectly or indirectly, any bonus, gift, or compensa-
tion. Acts 1880-1, p. 173.
See notes to § 1682. See also, § 1696. As to dentists,
•see § 1746.
Burden of Proof on State. — In a prosecution for practic-
ing medicine illegally, the State is required to prove thav
the accused, with intent to receive compensation therefor,
performed services such as are defined in this section,
without registering in the county of his residence as re-
quired by § 1684. The burden is upon the state to prove,
as a material fact in the case, the residence of the ac-
cused as alleged in the indictment; but the prosecution may
rely upon the failure of the accused to attack prima facie
or presumptive proof as to residence, which is sufficiently
strong to compel the production of affirmative proof in
order to rebut it. Hathaway v. State, 14 Ga. App. 415, 81
S. E- 260.
Magic Healer Not a Physician. — -Those who profess to
heal the sick by magic, psychic, or supernatural agency
may be impostors, but they are not physicians, and their
system is in no sense the practice of medicine. Bennett v.
Ware, 4 Ga. App. 293, 61 S. E. 546.
Receiving Compensation Need Not Be Alleged. — Since
by this section's definition the words "practice medicine"
embrace the idea of exacting compensation, an indictment
charging that the accused did unlawfully "practice medi-
cine," and expressly negativing his having any of the
qualifications essential to the lawful practice of medicine,
set forth in § 1682, is good in substance, and will support a
conviction, although there be no allegation that the accused
received or intended to receive compensation. Blaalock v.
State, 112 Ga. 338, 37 S. E. 361.
§ 1684. (§ 1479.) Practitioners must register.
— Every person lawful^ engaged in the practice
of medicine within this, State, before commencing
to practice, shall register in the office of the clerk
of the superior court of the county wherein he re-
sides and is practicing, or intends to commence
the practice of medicine, in a book to be kept for
the purpose by said clerk, his name, residence,
and place of birth, together with his authority for
practicing medicine, as prescribed in this Chap-
ter. The person so registering shall subscribe or
verify, by oath or affirmation, before a person
duly qualified to administer oaths under the laws
of this State, an affidavit containing such facts,
and whether* such authority is by diploma or li-
cense, and the date of same, and by whom
granted, which shall be exhibited to the county
clerk before the applicant shall be allowed to reg-
ister. The county clerk shall receive a fee of fifty
cents for each registration, to be paid by the per-
son so registering. Acts 1880-1, p. 173.
See notes to § 1683.
Registration Only in County of Residence. — This section
only requires one registration by a practitioner of medicine
before he commences to practice medicine in this state and
that registration is required to be made in the office of
the clerk of the superior court of the county wherein the
practitioner resides. Jones v. State, 8 Ga. App. 411, 69
S. E. 315.
Certificate of Clerk Sufficient. — A certificate of the clerk
of the superior court of the county of the physician's resi-
dence, showing that such physician duly registered prior
to the year 1895, in compliance with the provisions of this
section, is prima facie evidence of his right to practice
medicine. Trentham v. Waldrop, 119 Ga. 152, 45 S. E.
988.
Recovery Not Allowed Without Registration. — A physi-
cian who fails to register according to this section can not
recover for professional services rendered. Murray v.
Williams, 121 Ga. 63, 48 S. E. 686.
Attempt to Register — A physician who, in consequence
of the fact that the clerk of the superior court did not have
a book in which he could register, did not succeed in doing
so, but who was called to attend a patient, and did prac-
tice, can recover his fees therefor, it appearing that he
registered as soon as the book was obtained by the clerk,
and as soon as by writ of mandamus the clerk could have
been made to furnish the book of registry. Parish v.
Foss, 75 Ga. 439.
§ 1685. (§ 1480.) Must register again on re-
moval.— Any such registered physician in this
State, who- may change his residence from one
county into another county in this State, shall
register within the clerk's office of the county to
which he removes and wherein he intends to re-
side and to practice medicine, as provided in the
preceding section. Acts 1880-1, p. 173.
A physician who fails to register in compliance with the
provisions of this section, can not recover for professional
services rendered. Murrav v. Williams, 121 Ga. 63, 48 S.
E. 686.
§ 1686. (§ 1481.) Medical officers excepted. —
Nothing in this Chapter shall apply to commis-
sioned medical officers of the United States army
oi navy, or to the United States marine hospital
service, or to legally qualified dentists in the prac-
tice of their profession, or to any woman prac-
ticing only midwifery.
ARTICLE 2.
State Board of Medical Examiners.
§§ 1687-1697: Repealed.
Editor's Note. — §§ 1687 to 1697, inclusive, were expressly
repealed by acts 1913, p. 101, which together with the
amendatory act 1918, p. 173 are here codified as §§ 1697 (IV
1697 (14).
§ 1697(1). Board of medical examiners estab-
lished; qualifications. — A board is hereby estab-
lished to be known by the name and style of the
State Board of Medical Examiners. Said board
shall be composed of ten practicing physicians of
integrity and ability, who shall be residents of and
have been duly licensed to practice medicine in
this State, and who shall have graduated from re-
putable medical schools and have been engaged in
the active practice of their profession within this
State for at least a period of five j^ears, but none
of them shall be connected in any way with any
medical college. Said board shall perform such
duties and possess and exercise such powers re-
lative to the protection of the public health, and
[ 366 ]
§ 1697(2)
STATE BOARD OF MEDICAL EXAMINERS
§ 1697(7)
the control and regulation of the practice of
medicine in the State as shall be in this Act
prescribed and conferred upon it. Acts 1913, p.
101; 1918, pp. 173, 187.
As to the penalty for the violation of this act, see § 462
(1), P. C. .
Powers of Board. — The board of medical examiners has
such implied powers only as are reasonably necessary to
execute the express powers conferred. Bentley v. State
Board of Medical Examiners, 152 Ga. 836, 838, 111 S. E.
379.
This act as amended by the act of 1918 (Ga. Laws 1918,
p. 173), does not expressly confer power upon this board
to bring action to expunge the license of a doctor obtained
from the superior court records. Such power is not rea-
sonably necessary to execute the express powers conferred
upon this board by these acts, and for this reason can not
be implied and the captain does not give such power.
Bentley v. State Board of Medical Examiners, 152 Ga.
836, 838, 111 S. E. 379.
§ 1697(2). Appointment; term of office; re-
moval; vacancies; quorum. — The Governor shall
within thirty days after the passage of this Act,
appoint ten physicians, who shall possess the
qualifications specified in Section 1697(1) to con-
stitute the members of this board, five members
of this board shall be regular physicians, three
shall be eclectic physicians and two shall be
homeopathic physicians, all to be appointed by
the Governor. The successor of each member
shall be an appointee in the same manner; said
members shall be so classified by the Governor
that the term of office of two shall expire in one,
three in two, two in three and three in four years
from the date of appointment. And subsequently
each successor shall be appointed by the Gover-
nor and serve for a term of four years from the
time of the expiration of the term of his prede-
cessor; and these appointments shall be made so
as to preserve the original ratio of regular, eclec-
tics and homeopaths, respectively. The Governor
shall have power to remove from office any mem-
ber of the board for neglect of duty required by
this Act, for incompetency or for unprofessional
conduct. Any vacancy that may occur in said
board in consequence of death, resignation, re-
moval from the State, or from other cause, shall
be filled for the unexpired term by the Governor
in the same manner. A majority of the board
shall constitute a quorum. Acts 1913, p. 101, 102;
1918, pp. 173, 181, 187.
§ 1697(3). Oath of office. — Immediately and
before entering upon the duties of said office, the
members of said Board shall take the Constitu-
tional oath of office, and shall file the same in the
office of the Governor of the State, who, upon re-
ceiving said oath of office, shall issue to each
member a certificate of appointment. Acts 1913,
pp. 101, 102; 1918, pp. 173, 188.
§ 1697(4). Organization; officers; expenses;
meetings; seal; rules; examinations. — Immediately
after the appointment and qualification of said
members said board shall meet and organize.
Said board shall elect president, a vice-president
and a secretary-treasurer from its membership,
whose salaries shall be fixed and paid by the
board. All expenses of the board shall be paid
out of funds collected by the board, the remainder
to be divided equally among the members of the
board. Said board shall hold two regular meet-
ings in each year. One meeting shall be held in
May or June, at such time as suits the con-
venience of graduates of medical colleges in At-
lanta and Augusta; the other meeting shall be
held on the second Tuesday in October in the
State capitol. Call meetings may be held at the
discretion of the president. The regular meetings
shall be held at the capitol building in Atlanta,
and in Augusta. Said board shall adopt a seal,
which must be affixed to all licenses issued by it.
The board shall, from time to time, adopt such
rules and regulations as it may deem necessary
for the performance of its duties, and shall ex-
amine and pass upon the qualifications of ap-
plicants for the practice of medicine in this State,
as herein prescribed. Acts 1913, pp. 101, 103;
1918, pp. 173, 188.
§ 1697(5). License required before practice;
how obtained. — Any person wishing to obtain the
right to practice medicine in this State, who has
not heretofore been registered or licensed so to
do, shall, before it shall be lawful for him to prac-
tice medicine in this State, make application to
the board through the secretary-treasurer thereof,
upon such form and in such manner as shall be
adopted and prescribed by the board, and obtain
from the board a license so to do. Unless such
person shall have obtained a license as aforesaid,
it shall be unlawful for him to practice in this
State, and if he shall practice medicine in this
State without first having obtained such a license,
he shall be demeed to have violated the provisions
of this Act. • All applicants for a license to prac-
tice medicine or for a renewal of any such license
which has been revoked shall furnish the board
with evidence of good moral character. Applica-
tions from candidates to practice medicine or
surgery in any of the branches shall be accom-
panied with proof that the applicant is a graduate
of a legally incorporated medical college or insti-
tution in good standing with the board; the board
shall have the power to revoke the certificate
granted to any applicant who makes any misstate-
ment of any material fact in his application for
examination. Acts 1913, pp. 101, 103; 1918, pp.
173, 181, 189.
§ 1697(6). Recording of certificate; fee; report.
— Before any person who obtains a certificate
from said board may lawfully practice medicine
and surgery in this State, he shall cause the said
certificate to be recorded in the office of the clerk
of the Superior Court of the county in which he
resides. The certificate shall be recorded by the
clerk in a book kept for that purpose. It shall be
indexed in the name of the person to whom the
certificate is granted. The clerk's fee for record-
ing the certificates shall be the same as for
recording a deed. The clerk shall make a report
to the secretary of the board on the 31st of De-
cember of each year of all certificates registered
with him. Each applicant receiving a certificate
from the board shall cause the same to be regis-
tered within thirty days. Acts 1913, pp. 101. 104
1918, pp. 173, 189.
§ 1697(7). Power of board over medical col-
leges.— Said board shall be empowered by this
Act to pass upon the good standing and reputabil-
ity of any medical college. Only such medical
colleges will be considered in good standing as
possess a full and complete faculty for the teach-
ing of medicine, surgery and obstetrics in all their
[ 367 ]
§ 1697(8)
STATE BOARD OF MEDICAL EXAMINERS
§ 1697(13)
branches, afford their students adequate clinical
and hospital facilities, require attendance upon at
least 80 per cent, of each course of instruction,
give four graded courses of instruction, the ag-
gregate of which amounts to at least 120 weeks,
exclusive of holidays of at least forty hours each
week; that require at least forty-two months to
have elapsed between the beginning of the
student's first course of medical lectures and the
date of his graduation, each session composed of
twenty-nine weeks of actual instruction, with at
least forty per cent, of laboratory instruction in
the first and second years and a minimum of
thirty-five per cent, of clinical work in the third
and fourth years; that requires an average grade
in each course of instruction of at least seventy-
five per cent, in examination as a condition of
graduation; that fulfill all their published prom-
ises, requirements and other claims respecting ad-
vantages to their students and the course of in-
struction; that enact a preliminary educational re-
quirement equal to that specified by this Act;
that require students to furnish testimonials of
good moral standing; and that give advanced
standing only on cards from accredited medical
colleges. Students must have attended at least
eighty per cent, of the course in the last year of
the college from which diploma is presented. In
determining the reputability of the medical col-
lege, the right to investigate and make a personal
inspection of the same is hereby authorized. Acts
1913, pp. 101, 104; 1918, pp. 173, 190'.
§ 1697(8). Preliminary educational require-
ments; application fee for certificate. — Beginning
with the session of 1919-20, each medical school
or college in good standing with the board shall
have a minimum preliminary educational require-
ment of the completion of a two-year premedical
college course based upon the completion of a
four-year course of at least 15 units in a standard
accredited high school, or have the equivalent as
demonstrated by examination. The pre-medical
college course shall consist of at least 60 semester
hours of standard college work in an approved
college, of which at least 28 semester hours are in
chemistry, physics and biological sciences; of this
28 hours there must be at least 12 hours of chem-
istry, 8 of physics, and 8 of biology, including at
least ten hours of laboratory work. Evidence of
such preliminary education which will entitle the
applicant to admission to a Georgia medical
school shall be a certificate furnished by the pro-
fessor of secondary education in the State Uni-
versity on the basis of the rating of the high
schools and colleges of this State, or other States
by the accrediting authorities of said States, or
by examinations conducted by him or by some
person designated by him. A fee of $2.00 shall
accompany each application for a certificate and a
like amount shall be paid by the applicant for each
separate subject on which he is examined. Said
official shall also pass upon the pre-medical edu-
cation of all applicants for examination to prac-
tice medicine in this State and certify equal
standards for these as for Georgia students to the
board before the applicant is eligible for exami-
nation. He shall make an annual report to the
board of the work of his office. Acts 1913, pp.
101, 105; 1918, pp. 173, 181, 190.
§ 1697(9). Temporary license. — In the discre-
tion of the secretary-treasurer of said board, with
the approval of the president, he may issue tem-
porary license to an applicant which shall have
the same force and effect of a permanent license
until the next regular meeting of the board, when
said license shall become void. Said license shall
not be recorded. Acts 1913, pp. 101, 105; 1918.
pp. 173, 191.
§ 1697(10). Examination of applicants. — Ex-
amination of applicants for license to practice
medicine shall be made by said board according to
the methods deemed by it to be the most practical
and expeditious to test the applicant's qualifica-
tions. The board shall require the examination to
be wholly or in part in writing, each applicant
shall be designated by a number instead of his
name, so that his identity shall not be disclosed
to the members of the board until after the exami-
nation papers are graded. Examination shall be
on the following subjects: Anatomy, physiology,
chemistry, hygiene, surgery, obstetrics, gyne-
cology, pathology and diagnosis, practice of medi-
cine, materia medica and therapeutics. Acts 1913,
pp. 101, 105; 1918, pp. 173, 182, 191.
§ 1697(11). License fees. — There shall be paid
to the secretary-treasurer of said board by each
applicant for a license b}' examination, a fee of
twenty dollars, which shall accompany the appli-
cation. The same fee shall be charged for issuing
a temporal license, which includes fee for exami-
nation for permanent license; and a fee of fifty
dollars shall be charged for issuing a license by
reciprocity. The board of examiners may grant
a license without examination to licentiates of
boards from other states requiring equal or higher
qualifications, upon the same basis as such States
reciprocate with the State of Georgia. Said board
may grant a license without examination to any
licentiates of the National Board of Medical Ex-
aminers of the United States upon the reciprocity
fee by such licentiate. No part of any fee is re-
turnable under any circumstances; nor shall this
Act be construed as affecting or changing in any
way laws in reference to license tax to be paid by
physicans and surgeons. Acts 1913, pp. 101, 106;
1918, pp. 173, 182, 192.
§ 1697(12). Issuance of licenses; duty of secre-
tary and treasurer. — Said board shall have au-
thority to administer oaths, to summon witnesses
and take testimony in all matters relating to its
duties. Said board shall issue license to practice
medicine to all persons who shall furnish satis-
factory evidence of attainments and qualifications
under the provisions of this Act and the rules and
regulations under the provisions of this Act, and
the rules and regulations of the board. Such
license shall be signed by the president and at-
tested b}^ the secretary-treasurer of the board un-
der its adopted seal, and it shall give absolute au-
thority to the person to whom it is issued to prac-
tice medicine in this State. It shall be the duty of
the secretary-treasurer under the direction of the
board, personally or by deputy, to aid the solici-
tors of the State in the enforcement of this Act
and in the prosecution of all persons charged with
violation of its provisions. Acts 1913, pp. 101,
106; 1918, pp. 173, 192.
§ 1697(13). Refusal and revocation of licenses.
— Said board may refuse to grant a license to
[ 368 ]
1697(13)
STATE BOARD OF MEDICAL EXAMINERS
§ 1697(13)
practice medicine in this State, or may cause a
licentiate's name to be removed from the records
in the office of any clerk of court in this State, on
the following grounds, to-wit: The employment
of fraud or deception in applying for license or in
passing the examination provided for in this Act;
conviction of crime involving moral turpitude;
conviction for the violation of any penal provision
of the "Opium Act of 1914," or "Harrison Act,"
also called the "Harrison Narcotic Law;" the
practice of medicine under a false or assumed
name or the impersonation of another practitioner
of a like or different name; habitual intemperance
in the use of ardent spirits, narcotics, or stim-
ulants to such an extent as to incapacitate him for
the performance of professional duties; the pro-
curing or aiding or abetting in procuring a crimi-
nal abortion; the obtaining of a fee on representa-
tion that a manifestly incurable disease can be
permanently cured; causing the publication and
circulation of an advertisement of any medicine
by means whereby the monthly periods of women
can be regulated, or the menses, if suppressed,
can be re-established; causing the publication and
circulation of an advertisements relative to any
disease of the sexual organs; said board may upon
satisfactory proof made that any applicant or
licentiate has been guilty of any of the offenses
above enumerated refuse to grant a license to said
applicant or 'may revoke the license of said
licentiate upon a majority vote of said board.
There may be an appeal from the judgment of
said board by the party who is refused a license
by the board, or whose license is revoked, as the
case may be, if dissatisfied with the judgment, to
a jury in the Superior Court of the county of the
residence of such dissatisfied party, said appeal to
be had as in other cases now provided by law.
The party whose license is revoked or refused
shall be liable for cost as follows: Preparing
copies of notice, $2.00; procuring service of said
notice, $2.00; each subpoena for witness or for the
production of any book, writing or document, 15c;
transmitting appeal, $2.00; procuring cancellation
of revoked license, 25c. Said board is empowered
to enter up judgment for such cost as may accrue
under the provisions of this Act against the part}'
liable therefor, as herein provided, and issue exe-
cution thereon, which shall bear test in the name
of the president of said board and be signed by
its secretary-treasurer. In all cases wherein a li-
cense has been revoked and no appeal has been
entered within the time allowed by law, it shall
be the duty o.f the secretary-treasurer of said
board, immediately after the expiration of the
time allowed for appeal to transmit to the clerk
of the Superior Court, in whose office the revoked
license is recorded, a copy of the order of said
board revoking said license, certified by said
secretary-treasurer with a fee of 25c, and it shall
be the duty of said clerk to cancel the record of
said license by entering upon the face thereof a
copy of said certified order.
In a case wherein appeal proceedings are had
and not sustained, the revoked license shall be
cancelled in the manner above provided, im-
mediately after the final termination of such case.
The appeal herein provided for shall be had
upon the payment of cost or the making of the
affidavit in lieu thereof, as provided by law in
other cases.
Upon the preferment before said board of either
of said charges above enumerated against any
licentiate or applicant for license it shall be the
duty of said board to cause written notices of the
time and place of hearing upon said charge, to-
gether with a copy of the charge preferred, to be
served upon such licentiate or applicant twenty
days before hearing.
Said board shall prepare two copies of said
written notice and attach to each of said notices
a copy of the charge preferred, and cause the
same to be delivered to the sheriff or his deputy
of the county of the residence of the licentiate or
applicant against whom charge has been pre-
ferred, together with two dollars as a fee for serv-
ice, who shall within ten days deliver to such
licentiate or applicant personally, or leave at the
most notorious place of abode of such party, one
of said notices, with copy of said charge attached,
and then return the other notice with copy (of)
charge attached thereto to said board, together
with said officer's entry of service thereon.
Said licentiate or applicant shall have the privi-
lege to make defense at said hearing, either in
person or by attorney, and on application to said
board he shall be furnished, by said board, with a
subpoena for an}r witness in his behalf, or for the
production of any book, writing, paper or docu-
ment to be used in his behalf on said hearing.
Said board shall have the power to compel the
attendance of any witness or the production of
any book, writing or other document in the
possession, custody or control of any witness or
other person, at such hearing of said board, and
any witness or person refusing to produce any
book, writing or other document, or to appear or
testify, without legal excuse, at such hearing of
said board, after having been served with a sub-
poena issued by said board requiring such witness
to appear, produce any book, writing or other
document, or testify at such hearing, shall be
guilty of contempt, and upon certification of such
act by said board to the judge of the Superior
Court in whose jurisdiction said hearing is held
or to be held, the judge shall punish the same as
though committed before him.
No license of any applicant shall be refused
nor license of any licentiate shall be revoked on
account of the default or failure of the applicant
or licentiate to appear, but in case of default said
board may proceed with the hearing and upon
satisfactory proof made of the truth of the charge
preferred, refuse a license to the defaulting ap-
plicant or revoke the license of such defaulting
licentiate regardless of the absence at said hear-
ing of such applicant or licentiate.
However, at any time after six months from the
final termination of the proceeding, refusing or
revoking a license, said board may, by a majority
vote, issue a new license or grant a license to the
person affected, restoring and conferring all the
rights and privileges of and pertaining to the
practice of medicine as defined and regulated by
this Act. Any person to whom such rights and
privileges have been so restored shall pa}' to the
secretary-treasurer a fee of twenty dollars on the
issuance of a new license. Acts 1913, pp. 101.
107; 1918, pp. 173, 182, 193.
Editor's Note — This section, before the amendment of
1918, pp. 173, 182, 193, was held unconstitutional in Board
v. Lewis, 149 Ga. 716. because there was no provision for
369
§ 1697(14)
PROFESSIONAL NURSING
§ 1700
a notice and hearing before said board. This defect was
presumably cured by the amendment. See note of Hughes
v. Board below.
Interference by Equity. — A court of equity will not en-
join the State Board of Medical Examiners from hearing a
proceeding brought under this section, for the revocation
of the license of a physician upon charges that he had been
convicted of a crime involving moral turpitude and had
caused the publication and circulation of an advertisement
relative to diseases of the sexual organs, where he has a
complete legal remedy by making defense before board and
appealing to the superior court. Hughes v. State Board,
158 Ga. 602, 123 S. E. 879. But see Board v. Lewis, 149 Ga.
716, 102 S. E. 24, and the editor's note above.
§ 1697(14). Terms "practice of medicine," etc.,
defined; practice without license prohibited. — The
terms "practice of medicine," "to practice medi-
cine," "practicing medicine," and "practice medi-
cine," as used in this Act are hereby defined to
mean holding one's self out to the public as being
engaged within this State in the diagnosis or
treatment of disease, defects or injuries of human
beings, or the suggestion, recommendation or
prescribing of any form of treatment for the in-
tended palliation, relief or cure of any physical,
mental or functional ailment or defect of any per-
son with the intention of receiving therefor, either
directly or indirectly, any fee, gift or compensa-
tion whatsoever, or the maintenance of an office
for the reception, examination and treatment of
any person suffering from disease, defect or in-
jury of body or mind, or attaching the title M. D.,
Oph., D., Dop., Surgeon, Doctor, either alone or in
connection with other words, or any other words
or abbreviations to his name, (which) are indicative
that such person is engaged in the treatment or
diagnosis of disease, defects or injuries of human
beings. If any person shall hold himself out to
the public as being engaged within this State in
the diagnosis or treatment of disease or injuries of
human beings, or shall suggest, recommend or
prescribe any form of treatment for the palliation,
relief or cure of any pl^sical or mental ailment
of any person with the intention of receiving
therefor, either directly or indirectly, any fee, gift
or compensation whatsoever, or shall maintain an
office for the reception, examination or treatment
of diseased or injured human beings, or shall at-
tach the title M. D., Oph., D., Dop., Surgeon,
Doctor, either alone or in connection with other
words, or any other word or abbreviation to his
name indicative that he is engaged within this
State in the treatment of diseased, defective or in-
jured human beings, and shall not in any of these
cases then possess in full force and virtue a valid
license to practice medicine under the laws of this
State, he shall be deemed to be practicing medi-
cine without complying with the provision of this
Act, and in violation thereof. Nothing in this
Act shall be construed to prohibit gratuitous serv-
ice in the cases of emergency, nor the practice of
the religious tenets or general beliefs of any
church whatsoever; nor to osteopaths not pre-
scribing medicines or administering drugs, nor to
permanently located opticians at their established
places of business not prescribing or using drugs
or medicines, nor requiring a fee for examination
or attaching to their names titles indicative that
any such person is engaged in the practice of
medicine as defined in this Act, nor shall it apply
to commissioned surgeons of the United States
army, navy or public health service while so en-
gaged, nor to regularly licensed physicians called
in consultation from other States or territories to
attend to special cases in this State, nor to the
practice of dentistry, nor to midwives or nurses.
Acts 1913, pp. 101, 108; 1918, pp. 173, 196.
As to the violation of this act, see § 462 (1), P. C.
CHAPTER 10.
Professional Nursing.
ARTICLE 1.
Board of Examiners.
§ 1698. Board of examiners. — The board of ex-
aminers of nurses for Georgia is hereby created.
It shall be composed of five persons to be selected
and appointed in the following manner:
The Georgia State association of graduate
nurses will nominate to the Governor ten of its
members, none of whom is in any way connected
with any training-school for nurses. The said
nurses must have had at least three years of ac-
tive practice in their profession immediately pre-
ceding their appointment. From this number the
Governor shall, within thirty days thereafter, ap-
point for places on the said board one nurse who
shall hold office for one year from said date of
appointment; and two . who shall hold office for
two years from said date; and two who shall hold
office for three years from said date. All of the
appointments shall have the same date, provided
no two of the nurses so appointed shall have
graduated from the same training-school.
Upon the expiration of the term of office of any
member of said board, the Governor shall appoint
a successor to fill the term of office, who shall
hold office for three years from the date of the
expiration of the term.
The appointment shall be made from a list of
five members of the association to be furnished
to him by the association. Acts 1907, p. 117.
§ 1699. Vacancies in the board.— All vacancies
occurring in this board shall be filled by the
Governor for the unexpired term from like nomi-
nations furnished to him by the association within
thirty days after the vacancy occurs: Provided,
that if the association fails to make the nomina-
tions herein required within the time herein speci-
fied, the Governor shall make such appointments
by nominating such members of the nursing pro-
fession thereto as may seem to him to be proper.
§ 1700. Organization of the board. — The mem-
bers of the board shall, within thirty days after
appointment, organize by the election of one of
its members to be the president of the board and
another to be the secretary and treasurer, who
shall hold office for a period of one year, and until
their respective successors are, elected and have
qualified; said officers shall be elected by the
board annually, and in case of a vacancy in either
of said offices the board shall, within forty days
after the said vacancy occurs, elect one of its
members to fill said office, and in the event there
is no such election within the time named, the
Governor shall appoint a member of the board
to fill the vacancjr.
The secretary is required to certify to the Gov-
ernor the names of the officers so elected, and in
[ 370]
§ 1701
BOARD OF EXAMINERS
§ 1710
the case of a vacancy this shall likewise be certi-
fied by the secretary to him, and in the event of
a vacancy in the office of secretary the president
of the board shall certify the same to him, and
shall certify to him the name of the person chosen
to fill the vacancy, in the event such vacancy is
filled by the board.
§ 1701. Quorum of the board. — Three mem-
bers of the board of examiners shall constitute a
quorum, but no action of the board shall be valid
unless authorized by the affirmative vote of three
members thereof.
§ 1702. Register of applicants and nurses. — The
secretary of the board is directed to keep a record
of the minutes of the meetings of the board and
a record of the names of all persons applying for
registration, and of the action of the board there-
on; and a register of all nurses who have complied
with the requirements of this Chapter, all of
which records shall at all reasonable times be
open to the public inspection.
§ 1703. Official seal and certificate of the secre-
tary.— Said board is authorized to have and use
an official seal, which shall bear the words, "State
Board of Examiners of Nurses for Georgia."
The certificate of the secretary of the board, un-
der the seal thereof, as to the action or non-action
of the board, shall be accepted in evidence in the
courts of this State as the best evidence of the
minutes of the board; and likewise the certificates
of the secretary under said seal, as to the regis-
tration or non-registration of any person, shall be
accepted as the best evidence as to the registra-
tion or non-registration of the person under the
requirements of this Chapter. The secretary will
issue to all nurses admitted to registration a cer-
tificate under the seal of the board, showing the
facts.
§ 1704. Examination of applicants and notice.
— It shall be the duty of said board to meet, for
the purpose of examining applicants for registra-
tion, at least once in each year, and oftener should
it be deemed necessary by the board. Notice of
the meeting shall be given of the time and place
of the meeting b}^ written notice posted, postage
prepaid to last known address of each applicant,
at least ten days before the time of the meeting,
and by publication in a daily paper of general cir-
culation at Atlanta, and in a nurses' journal, if
there be one published in Georgia.
The notices shall be published at the same rates
charged for sheriffs' advertisements. Said notices
shall be inserted at least once, and the first in-
sertion shall be made at least two weeks prior to
the meeting: Provided, the secretary of the board
shall issue a temporary permit to each applicant
for registration, which permit will authorize the
applicant to do nursing as a registered nurse un-
til the next meeting of the board.
§ 1705. Registration fee. — All persons making
application for registration shall deposit with the
secretary of the board, at the. time of making such
application, the sum of ten ($10.00) dollars as an
examination or registration fee. Acts 1921. p. 215.
Editor's Note — This section as amended by the act of
1921 (acts 1921, p. 215) was simply increased as to the
registration fee from five or ten dollars.
§ 1706. Qualification of applicants. — Each ap-
plicant for registration must be at least twenty-
one years of age, of good moral character, a
graduate from a regular chartered training-school
for nurses, connected with a general hospital or
sanitorium (in which medical, surgical, gyne-
cological, and obstetrical cases are treated) where
three years of training with a systematic course
of instruction on the above-mentioned class of
cases is given in the hospital or sanatorium, or
must have graduated from a training-school in
connection with a hospital of good standing, sup-
plying a three years' training corresponding to
the above standard, which training may be ob-
tained in two or more hospitals. All qualifications
of the applicant shall be determined by the board,
which is empowered to prescribe such examina-
tion for the applicants as will best test their fit-
ness and ability to give efficient care to the sick.
All applicants at the same examination shall be
subjected to the same kind of examination.
§ 1707. Graduates of training school. — All
nurses graduating on or before June 1, 1909, from
such training-schools as are referred to in the
preceding section shall be by that fact entitled to
registration without examination, upon paying the
application fee of five dollars, and submitting suf-
ficient evidence of good moral character. Nurses
who shall show to the satisfaction of the board
that they are graduates of training-schools con-
nected with a hospital or sanatorium giving two
years' systematic course of instruction, or if they
graduated before or during the year 1897 from
such a school giving one year's training, and who
are in good moral and professional standing, and
are engaged in the practice of the profession of
nursing on August 22d, 1907, also all nurses in
training at said date who shall graduate hereafter,
and possess the qualifications herein specified,
shall, upon payment of the application fee, be en-
titled to registration without examination: Pro-
vided, application is made for such registration on
or before June 1st, 1909.
§ 1708. Professional nurses required to register.
— After the expiration of six months from August
22d, 1907, it shall be unlawful for any person to
prosecute professional nursing as a registered
nurse in this State without certificate from the>
board. Each nurse who registers in accordance
with the provisions hereof shall be styled and
known as a registered nurse, and no other nurse
shall assume or use such title or use the abbrevia-
tion "R. N.," or any other letters, words or
figures to indicate that he or she is a registered
nurse, and a violation hereof shall be deemed a
misdemeanor.
See P. C.r § 474.
§ 1709. Gratuitous or non-registered nurses. —
The preceding sections shall not be construed to
affect or apply to gratuitous nursing of the sick
by friends or members of the family, and it shall
not apply to any person nursing for hire who does
not in any way assume to be a registered nurse,
and who does not use the title registered nurse or
the letters "R. N.," or other letters, words, or
figures for the purpose of representing that he
or she is a registered nurse within the meaning of
this law.
§ 1710. Certificates of registration revocable. —
The board may revoke any certificate issued by
it for sufficient cause, to be adjudged by it; but no
[371]
§ 1711
STATE BOARD OF EMBALMING
§ 1714
such certificate shall be revoked without a hear-
ing, notice of the time and place of which shall be
given to the holder of the certificate by the secre-
tary at least thirty days before the day set for
said hearing, which notice shall plainly set forth
charges against the holder of said certificate, and
the trial shall be only upon the grounds so speci-
fied. Said notice shall be mailed to the person
so accused at his or her last known address,
postage prepaid, or the same shall be delivered
personally to the person so accused.
The presiding officer of said board is authorized
and empowered to administer oaths to all wit-
nesses giving evidence at such hearing, if the
same is not under oath.
§ 1711. Compensation of secretary and board
members. — Out of the funds of said Board ac-
cruing from the application fees herein provided,
the Secretary of said Board shall be paid a salary
and all necessary expenses; the salary to be de-
termined by the Board of Examiners. The mem-
bers of the Board shall be entitled out of said
funds to receive $5.00 per day for each day ac-
tually engaged in the service of the Board, and
all necessary expenses, all payments out of said
funds, or any funds of the Board, shall first be
approved by the presiding officer of said Board.
Acts 1921, p. 215.
Editor's Note This section as amended by the act of
1921 (acts 1921, p. 215) removed the limit of one hundred
dollars per year to be paid the secretary, and provided
that he should be paid "a salary and all necessary ex-
penses, the salary to be determined by the members of
the board."
§ 1711(1). Certificates to nurses registered out
of Georgia. — The Board of Examiners shall have
authority to issue a certificate or registration
without examination, to graduate nurses of a
State other than Georgia or of a foreign country,
who hold bona fide certificate of registration is-
sued under the laws of such a State or foreign
country, provided the standards of registration
are equivalent to those provided in this Act and
the individual qualifications of the nurse meet the
requirements of this Act.
The registration fee of ($10.00) herein pro-
vided shall accompany each application for a cer-
tificate. Acts 1921, p. 215.
ARTICLE 2.
Georgia State Sanitarium Training School for
Nurses.
§ 1711(2). Authority to establish and regulate.
— -The trustees of the Georgia State Sanitarium
shall have authority to establish a training school
for the benefit of the white male and female
nurses, while in the employ of the Georgia State
Sanitarium, and to establish rules for the sys-
tematic training of such nurses and provided a
course of lectures to be given by the several phy-
sicians employed in said Sanitarium, and to issue
diplomas to all graduates of said training school.
Acts 1910, p. 128; 1916, p. 111.
§ 1711(3). Nurses to be benefited. — Any or all
white male or female nurses now in the employ
of said Sanitarium, or who may hereafter be em-
ployed by the same, shall be entitled to the bene-
fit of such training-school, provided they shall
have satisfactory educational qualifications, and
be of good moral character. Acts 1910, p. 128;
1916, pp. Ill, 112.
§ 1711(4). Rules, and three-year course. — Said
board of trustees shall establish rules and regu-
lations for said training school, so as to provide
for a three years' course of instruction, lectures,
and training, said three years' course to equal the
minimum requirements governing the application
and registration of nurses as set forth by the
State Board of Examiners of Nurses of Georgia.
Acts 1916, pp. Ill, 112.
§ 1711(5). Certificate of trained nurse. — Each
nurse, after having completed the course of train-
ing laid down by said board of trustees, and hav-
ing passed a satisfactory examination, and having
proved herself or himself of good moral character,
^hall be entitled to a certificate, or diploma of
graduation, entitling him or her to register as a
trained nurse in accordance with the Acts of
August 22d, 1907 [§§ 1698-1711], provided such
applicant passes a satisfactory examination before
the State Board of Examiners of Nurses of
Georgia, in accordance with said Act of 1907.
Acts 1916, pp. Ill, 112.
§ 1711(6). Authority to practice nursing. —
Such nurses, after having received such diploma
from the said board of trustees, and having regis-
tered as provided in the foregoing section, shall
be authorized to practice the profession of nurs-
ing as a professional graduate, registered nurse
anywhere in the State of Georgia. Acts 1916, pp.
Ill, 112.
CHAPTER 11.
State Board of Embalming.
§ 1712. State board of embalming created. —
There shall be a board to be known as the
Georgia State board of embalming. The board
shall consist of five members, to be appointed by
the Governor, and all vacancies occurring on the
board shall be filled by the Governor. The mem-
bers of the board shall be practical embalmers,.
having experience in the business and the care of
and the disposition of dead human bodies, and
shall be residents of this State. Acts 1899, p. 70.
§ 1713. Term of office, and removal from office.
— Each member of the board shall serve for a
term of five years from the date of his appoint-
ment going into effect, except those first ap-
pointed, who shall serve as follows: One for one
year, one for two years, one for three years, one
for four years, and one for five years, re-
spectively; the Governor shall designate the num-
ber of years each member shall serve, and any
one having served as a member of said board
shall be eligible for reappointment. The Gover-
nor shall have power to remove from office any
member of the board for neglect of duty, incom-
petency, or improper conduct.
§ 1714. Certificate of appointment, oath of of-
fice.— The Governor shall furnish each person
appointed to serve on the State board of em-
balming a certificate of appointment, and such ap-
pointee shall qualify by taking the usual oath of
office before any officer authorized by law to ad-
minister oaths in this State, within ten days after
said appointment has been made; and this fact
72]
§ 1715
STATE BOARD OF EMBALMING
§ 1717(4)
shall be noted on the certificate of appointment,
and shall be filed with the board of embalmers.
As to oath, see § 269.
§ 1715. Quorum, meetings and notice thereof.
— The board shall meet at least once in each year,
and oftener as the proper and efficient discharge
of its duties may require. At least fifteen days
notice of the time and place of meeting shall be
given by publication in at least three daily news-
papers published in different towns or cities of
the State.' Three members of the board shall con-
stitute a quorum for the transaction of business
and the performance of its duties. Acts 1916, pp.
77, 82.
§ 1716. President, secretary and treasurer. —
The board shall elect a president and secretary
from the members of the board, who shall serve
for one year, or until their successors shall be
elected and qualified. The secretary shall enter
into bond to the State of Georgia in the sum of
not less than $1,000, for the proper discharge of
his duty, and for the care, custody, and disburse-
ment of all moneys that may come into his hands,
in accordance with such rules as may be adopted
by the board. Acts 1916, pp. 77, 82.
§ 1717. Powers of the board. — For the purpose
of better protection of life and health, preventing
the spread of .contagious disease, regulating the
practice of embalming, and the care and disposi-
tion of the dead, the board shall have the power
and it shall be its duty, first, to prescribe a
standard of proficiency as to the qualifications and
fitness of those engaged and who may engage in
the practice of embalming, and the care and dis-
position of dead human bodies in this State, and
the power to revoke the license of any licensed
embalmer for incompetency and conduct not be-
coming an embalmer, or for not strictly obeying
the law and the rules of the State Board of Em-
balming, and said State Board of Embalming
shall have power and authority to adopt a stand-
ard permit for the transportation of dead human
bodies, by common carriers and others. It shall
adopt a common seal and make rules and regu-
lations and by-laws, from time to time, not in-
consistent with the laws of this State or of the
United States, whereby the performance of the
duties of said board and the practice of embalm-
ing of dead human bodies shall be regulated.
Acts 1916, pp. 77, 78.
Editor's Note. — The amendment (acts 1916. p. 51) to this
section increased the power of the Board as it gives them
the right to punish any licensed embalmer for incompetency
or for not obeying their rules and laws by revoking their
license. The act also provided that the Board should have
authority to adopt a standard permit for the transportation
of dead human bodies.
§ 1717(1). Transportation of dead bodies. — A
copy of the original death certificate on the stand-
ard certificate of death form, signed by attending
physician, permit of local board of health or reg-
istrar, and a transit label signed by the shipping
funeral director, and the initial baggage agent,
printed on strong white paper, supplied through
the Georgia State Board of Embalmers by the
public printers, shall be required for the trans-
portation by common carriers of bodies of per-
sons dying in this State. The death certificate
shall contain such information as is required in
the standard form of death certificate if obtain-
[.V
able. The health officers' or registrar's permit
shall authorize the transportation of the body de-
scribed in the physician's certificate. The ship-
ping funeral director shall state on the shipping
label how the body is prepared, and the local bag-
gage agent shall state thereon the route, name
and address of escort.
The physician's certificate and health officers'
or registrar's permit shall be given the escort, to
be delivered with the body at destination. The
shipping label shall be securely attached to the
outside case. If the body is sent by express, the
physician's certificate, an,d the permit shall be at-
tached to the express way-bill, and delivered with
the body at the destination, and the shipping
label shall be attached to the outside case. Act<
1916, pp. 77, 79.
As to the penalty for the violation of this act, see S
411 (1), P. C.
§ 1717(2). Transportation of bodies dead of
small-pox, plague, etc. — The transportation of
bodies dead of small-pox, plague, Asiatic
cholera, yellow fever, typhus fever, diptheria
(membranous croup or diptheretic sore throat),
scarlet fever (scarlet rash or scarlatina), erysipe-
las, anthrox and leprosy shall be permitted only
under the following conditions: The body shall
be thoroughly embalmed with an approved dis-
infectant fluid, all orifices shall be closed with ab-
sorbent cotton, the body shall be washed with
the disinfectant fluid, enveloped in a sheet satu-
rated with the same, and placed at once in the
coffin or casket which shall be immediately closed,
and the coffin or casket, or the outside case con-
taining the same, shall be metal or metal lined,
and hermetically and permanently sealed. Acts
1916, pp. 77, 79.
§ 1717(3). Transportation of bodies dead of
other diseases. — The transportation of bodies dead
of any diseases other than those mentioned in
§1717(2), shall be permitted under the following
conditions :
(a) When the destination can be reached with-
in twenty-four hours after death, the coffin or
casket shall be inclosed in a strong outside box
made of good sound lumber, not less than seven-
eighths of an inch thick, all joints must be tongued
and grooved, top and bottom, put on with cleats
or cross pieces all put securely together, and be
tightly closed with white lead, asphalt varnish or
paraffine paint, and a rubber gasket placed on the
upper edge between the lid and box; provided,
however, that caskets containing embalmed
bodies may be shipped to points in this State in
tight ordinary casket boxes; and provided further,
that bodies addressed to the Anatomical Board of
the State may be received for shipment when pre-
pared in such manner as the State Anatomical
Board may direct.
(b) When the destination cannot be reached
within twenty-four hours after death, the body
shall be thoroughly embalmed, and the coffin or
casket placed in a strong, well-made outside
shipping case. Acts 1916. pp. 77, 80.
§ 1717(4). Disinterred bodies. — Xo disinterred
body, dead from any disease or cause, shall be
transported by common carriers, unless approved
by health authorities having jurisdiction at the
place of disinterment, and a transit permit and
3]
§ 1717(5)
STATE BOARD OF EMBALMING
§ 1721(2)
transit label shall be required, as provided in §
1717(1). The disinterment and transportation of
bodies dead of diseases mentioned in § 1717(2)
shall not be allowed except upon permission of
the health authorities at both places of disinter-
ment and the point of destination. All disinterred
remains for transportation shall be incased in
metal casket or metal lined, boxes, and hermeti-
cally sealed; provided, that bodies in a receiving
vault when prepared by licensed embalmer shall
not be regarded as disinterred bodies until after
the expiration of thirty days. Acts 1916, pp. 77, 80.
§ 1717(5). When outside cases omitted. — The
outside case may be omitted in all instances when
the body is transported in auto or horse-drawn
hearse or funeral directors' wagon. Acts 1916,
pp. 77, 81.
§ 1717(6). Handles of outside cases. — Every
outside case shall bear at least four handles, and
when over five feet six inches in length, shall bear
six handles. Acts 1916, pp. 77, 81.
§ 1717(7)',.. 'Diisiitfifeetants.— An approved disin-
fectant fluid shall contain not less than five per
cent for formaldehyde gas. The term embalming
as employed in these rules shall require the injec-
tion by a licensed embalmer of not less than ten
per cent, of the weight for bodies of persons dead
of diseases in § 1717(2), injected arterially in addi-
tion to cavity injection; and not less than six per
cent, of the body weight injected arterially in all
other cases in addition to cavity injection. Acts
1916, pp. 77, 81.
§ 1717(8). Form of death certificate, etc., to be
used. — The attached form of death certificate,
health officers' or registrar's permit, and label as
described herein, with these rules printed thereon,
shall be used in this State for the shipment of
bodies as herein provided. Acts 1916, pp. 77, 81.
§ 1718. Application for license, and examina-
tion of applicants. — A person desiring to engage
in the practice of embalming dead human bodies
within the State of Georgia shall make a written
application to the State board of embalming for a
license, accompany the same with such license fee
as may have been fixed by said board in its discre-
tion but not to exceed $25.00; whereupon the appli-
cant as aforesaid shall present himself or herself
before said board, at a time and place to be fixed by
the board, and if the board shall find, upon due ex-
amination, that the applicant is of good moral
character, possessed of a knowledge of the venous
and arterial systems, the location. of heart, lungs,
stomach, bladder, womb, and other organs in the
human body, the location of abdominal, pleural
and thoracic cavities; the location of the carotid,
brachial, radial, ulnar, femoral, and tibial arteries,
a knowledge of the science of embalming and the
care and disposition of the dead, and has a reason-
able knowledge of sanitation and the disinfection
of bodies of deceased persons and the apartment,
clothing, and bedding, in case of death from in-
fectious or contagious diseases, the board shall is-
sue to said applicant a license to practice said
science of embalming and the care and disposition
of the dead, and shall register such applicant as
a duly licensed embalmer. Such license shall be
signed by a majority of the board and attested by
provisions of this Chapter shall have said license
registered in the ordinary's office of the county in
the jurisdiction of which it is proposed to carry
on said practice, and shall display the license in a
conspicuous place in the office of such person so
licensed. Acts 1925, p. 188.
As to punishment for not complying with provisions of
this section, see P. C, § 411.
§ 1719. Annual fee. — Every registered em-
balmer, who desires to continue the practice of
his profession, shall annually thereafter, during
the time he or she shall continue in such practice,
the first day of January and not later than the
first day of February of each year, pay the secre-
tary of the board a fee of two dollars for the re-
newal of registration. Acts 1916, pp. 77, 82.
Editor's Note — The act of 1916 (acts 1916, pp. 77, 78)
amended this section by providing that all embalmers
should pay their fees between January the first and Febru-
ary the first, instead of "on such date as the said boar.'
may determine."
The words "or she" appearing in this section were
neither in the section before amendment, nor the enacting
clause of the act of 1916, but did appear in the repealing
portion of the act.
§ 1720. Expenses, how paid. — All expenses,
salary, and per diem to members of this board
shall be paid from fees received under the pro-
visions of this Chapter, and shall in no manner be
an expense to the State. All moneys received in
excess of said per diem allowance and other ex-
penses provided for shall be held by the secretary
of said board, as a special fund for meeting the
expenses of said board: Provided, that the secre-
tary of said board shall make, on the first day of
April in each and every year, a financial statement
of the receipts and expenses of said board, and
shall also pay to the State treasurer any balance
remaining in his hands, which amount shall be
credited to the common-school fund of the State.
§ 1720(1). Enforcement o£ law.— Said board is
also empowered for the purpose of carrying out
the provisions of this Act and to enforce the same
by prosecutions or otherwise to employ legal
counsel to advise with, and to represent the board,
to be paid out of the funds collected by said board,
and likewise to pay any legitimate expense in-
curred to prosecute any one in the courts of this
State for the violation of the provisions of this'Act.
Acts 1925, p. 188.
§ 1721. Application of this law. — Nothing in
this Chapter shall apply to, nor in any manner in-
terfere with, the duties of any officer of local or
State institutions, nor shall this Chapter apply to
any person engaged simply in the furnishing of
burial receptacles for the dead, but shall only ap-
ply to such person or persons as engage in the
business of embalming.
§ 1721(1). Unlawful practice; prerequisite to
registration. — It shall be unlawful for any person,
not a registered embalmer, according to the terms
of this Act, to practice or pretend to practice the
science of embalming, and no person shall be
registered as an embalmer under the provisions
of this Act unless he or she has previously had
one year's actual service, and under the supervi-
sion and instruction of a registered embalmer.
Acts 1916, pp. 77, 82.
§ 1721(2). Assignability of licenses; specifying
its seal. All persons receiving a license under the I to whom granted. — No license granted or issued
[374]
§ 1721(3)
STATE BOARD OF PHARMACY
§ 1728
under the provisions of this Act shall be assign-
able, and every such license shall specify by name
the person to whom it is granted, and not more
than one person shall carry on the practice of em-
balming the dead human bodies under one li-
cense. Acts 1916, pp. 77, 82.
§ 1721(3). Recognition of licenses of other
states. — The State Board of Embalmers is em-
powered to recognize licenses issued to embalmers
by other authorities of other States having prac-
tically equivalent requirements. Acts 1916, pp.
77, 83.
CHAPTER 12.
State Board of Pharmacy.
§ 1722. (§ 1492.) Appointment of. — The Gover-
nor shall appoint five experienced druggists, or
practical pharmacists, from the names of ten per-
sons suggested by the Georgia Pharmaceutical
Association, who shall have been actually engaged
in the drug business within this State for the
three years immediately preceding their appoint-
ment, and the five so appointed shall constitute
the "Georgia State Board of Pharmacy," one of
whom shall hold his office for one year, one for
two years, one for three years, and one for four
years, and one for five years, or until his or their
successors shall have been legally appointed and
qualified; and at each and every annual meeting
the said Georgia Pharmaceutical Association shall
submit to the Governor the names of five regis-
tered druggists, who shall have been actually en-
gaged in the retail drug business within this State
for three years immediately preceding the sub-
mitting of their names, and who are not connected
with any college or school of pharmacy, and the
Governor shall appoint from said names so sub-
mitted one member of the said board, who shall
hold his office for five years, until his successor
is duly appointed and qualified. Vacancies in the
board caused by death, resignation, or removal of
members from the State shall be filled by the
Governor from the list of names last submitted
to him by said association. Acts 1880-1, p. 184;
1889, p. 89; 1904, p. 59.
§ 1723. (§ 1493.) Oath and certificate of ap-
pointment.— Immediately, and before entering
upon the duties of said office, the members of
said board shall take the oath prescribed by the
Constitution of the State for State officers, and
shall file the same in the office of the Secretary
of State, who upon receiving the said oaths of
office, shall issue to each of said examiners a cer-
tificate of appointment.
§ 1724. (§ 1494.) Adopt rules and regulations.
— Said board shall meet and organize as a State
board of pharmacy, elect a chairman and secre-
tary, adopt such rules, regulations, and by-laws
as they shall deem necessary to carry into execu-
tion the provisions of this Chapter. Acts 1880-1,
p. 184; 1889, p. 89.
§ 1725. (§ 1495.) Meetings.— Said board shall
meet at least twice every twelve months, at such
place as a majority of the board may determine,
and the board may also hold special meetings, as
frequently and at such places as the proper dis-
charge of its duties shall require; the same to be
convened by order of the chairman, and the rules
or by-laws shall provide for the giving of proper
notice of the time and place of all such meetings
to the members of the board and to the public.
Acts 1904, p. 60.
§ 1726. (§ 1496.) Their duty.— It shall be the
duty of the board to grant license
1. To druggists, who, after three years ex-
perience in a drug-store managed by a licensed
apothecary or pharmacist, shall have passed a
satisfactory examination before the said board of
pharmacy.
2. To such physicians, graduates of a regular
medical college, and such graduates of schools of
pharmacy as shall have passed a satisfactory ex-
amination before said board of pharmacy.
3. To pharmacists who have obtained licenses
from such other State boards of pharmacy as may
be recognized by said Georgia State board of
pharmacy.
All licenses granted shall be signed by a ma-
jority of the whole board; shall specify the ground
upon which such license is granted; shall be in
such form as the board shall prescribe, and shall
be posted in a conspicuous place in the place of
business of such licentiate: Provided, that this
Chapter shall not apply to physicians who are
graduates of medical colleges in good standing,
and who have been practicing medicine for five
years prior to October 25th, 1889. Acts 1890-1,
p. 234; 1883, p. 146.
As to appointment of chief drug inspector, see § 2094.
§ 1727. (§ 1497.) Permanent license. — Persons
applying for examination and license shall pay to
the board of pharmacy the sum of fifteen dollars,
and, if passing the examination, shall be furnished
with a license as hereinbefore provided. Should
the applicant fail to stand a satisfactory examina-
tion, no fee shall be required for a subsequent
examination and subsequent examinations. It
shall be the duty of the board to keep a record
of its transactions in a book to be kept for that
purpose by the secretary, said book to be turned
over to his successor in office. The salary of the
secretary of said board shall be ten per cent, of
gross receipts annually; all necessary expenses of
the board to be paid out of receipts, and the re-
mainder to be equally divided between the mem-
bers of the board. Said board shall make an an-
nual report to the Georgia Pharmaceutical Asso-
ciation. Acts 1893, p. 108; 1904, p. 61.
§ 1728. (§ 1498.) Registration of druggists and
apothecaries. — All persons now lawfully engaged
in the compounding and vending of medicines,
drugs, and poisons in this State shall, on or be-
fore December 1st, 1881, and every person who
shall be hereafter duly licensed under the pro-
visions of this Chapter, shall, before engaging in
any business under said license, register in the
office of the ordinary of the county wherein he re-
sides, or intends to conduct said business, in a
book to be kept for that purpose by said ordinary,
his name, nationality, and credentials and date
thereof, under which he is entitled to engage in
such vocation. For each registration the ordinary
shall receive fifty cents, to be paid by the party
so registering, and a certificate of such registra-
tion, stating the terms of the same, shall be given
him bv said ordinarv.
[ 375
§ 1729
BOARD OF OSTEOPATHIC EXAMINERS
§ 1735
§ 1729. (§ 1499.) Exemption.— No person shall
engage in the compounding or vending of medi-
cines, drugs, or poisons within this State without a
full compliance with this Article, except —
1. Such druggists as are exempted from the
operations of the present law by the statutes of the
State of Georgia, and such druggists as have here-
tofore obtained license, and are legally authorized
b}^ existing laws to compound and vend drugs,
poisons, and chemicals.
2. Physicians putting up their own prescriptions,
and dispensing medicines from their own office.
3. Merchants selling family medicines not poison,
Paris green, arsenate of copper, arsenate of lead, or
preparations containing any of these articles, used
for killing Lincoln bugs, cabbage worms, cater-
pillars, all and similar insects, provided the lables,
cartons, packages containing such preparations
have the word "poison" printed across the face of
each in red ink, and in type not less than one-half
inch in size. All lables, cartons and packages con-
taining such articles to show the quantity and kind
of poison it contains, give specific directions for use,
and antidote (only), for each poison they contain in
letters of not less than three eighths inch in size.
4. Assistants in drugstores where the manager
lias complied with the requirements of this article.
Acts 1918, pp. 113, 114.
Editor's Note — This section has been amended since it
appeared in the code of 1910. The amendment (acts 1918,
p. 113) gives the merchant the right to sell poisonous in-
secticides if they are labeled "poison" and with directions
how to use on the package, also such package must give
the antidote for the poison. The change indicated appears
in paragraph 3, which formerly provided, merely; "Mer-
chants selling family medicines not poisons, as prescribed
and allowed by the code of Georgia."
Much that appeared in the enacting clause was not set
out in the subsection, setting out the section as amended,
and therefore does not appear in this section.
Relates to all Pharmaceutical Druggists. — This section,
which confines the compounding and vending of drugs and
medicines (with only certain enumerated exceptions) to
licensed druggists, apothecaries, and pharmacists, relates
to all pharmaceutical and medical preparations, whether
recognized by the pharmacopoeia and other standard works
or not. Lewis v. Brannen, 6 Ga. App. 419, 65 S. L. 189.
A merchant May Not Compound Medicines. — Lewis
Brannen, 6 Ga. App. 419, 65 S. E- 189.
§ 1730. (§ 1502.) Penalty.— Any person who
shall violate the provisions of this Chapter, or shall
register fraudulently, shall be guilty of a misde-
meanor. In all cases of prosecution under this
Chapter, the burden shall be upon the defendant to
show his authority.
For same provision of penal code, see P. C., § 460.
§ 1731. (§ 1503.) Fees paid, board, etc.— All the
fees for examinations and licenses, and one half the
fines collected from convictions under this Chapter,
shall be paid to the board of pharmacy, to defray
the expenses of the same, and as compensation for
their services.
CHAPTER 13.
Board of Osteopathic Examiners.
§ 1732. Board, how appointed and oath of mem-
bers.— It shall be the duty of the Governor to ap-
point for this State a board of osteopathic examin-
ers of five members. Said board shall be appointed
from a list of ten practitioners who are eligible as
[3
hereinafter provided for appointment upon said
board, which shall be furnished the Governor by the
president and secretary of the Georgia Osteopathic
Association. Such a list shall be transmitted an-
nually to the Governor under the seal and signed by
the president and secretary of said association, from
which list the Governor shall make further appoint-
ments to said board. In case of failure of said
association to submit said list, the Governor shall
appoint members in good standing of said associa-
tion without restriction: Provided, however, that
said members shall be qualified as hereinafter re-
quired by graduation and practice. Within thirty
days after the Governor shall have notified the
several members of their appointment each mem-
ber shall forward to the Governor the following
oath: "I do swear that I will faithfully perform the
duties of 'a member of the board of osteopathic ex-
aminers for the State of Georgia, to the best of my
ability. So help me God," which when filed in the
office of the Governor of the State, he shall issue to
each examiner a certificate of appointment. Acts
1909, p. 123.
§ 1733. Qualifications of examiners. — Each mem-
ber of said board shall be a practitioner of good
moral and professional character, and a graduate of
a legally incorporated and reputable college of
osteopathy and shall have been licensed to practice
osteopathy under the laws of this State, excepting
in the case of the first appointments on said board,
which shall be appointed as provided in the pre-
ceding section. Each member of said board shall
have been engaged in the practice of osteopathy in
this State for a period of at least three years, and
no member of said board shall be in any manner
financially interested in or connected with the
faculty or management of any osteopathic school
or college.
§ 1734. Terms of office. — The term of office of
the members of said board of osteopathic examiners
shall be for three years: Provided, that two
members shall be appointed for one year, two for
two years, and one for three years; and subse-
quently each appointment shall be for the full term
of three years. Any vacancy that may occur for any
cause shall be filled for the unexpired term by the
Governor.
§ 1735. Organization and meeting of the board.
— The said board shall, at the first meeting after its
appointment, organize by electing a president, vice-
president and secretary-treasurer, who shall hold
their offices until their successors are elected and
qualified. The secretaiw-treas'urer shall give bond
with surety in such sum as the board may deter-
mine, and the board may prescribe rules and regu-
lations and by-laws for its proceedings and govern-
ment. There shall be at least one regular meeting
of the board every year, and this meeting shall be
on the first Tuesday in July of each year, provided,
there are applicants for examination. Special meet-
ings may be held* upon the call of the president
and two other members. A majority of the board
shall constitute a quorum. The board shall keep a
record of its proceedings and a register of all ap-
plicants for license, giving the name and location
of the institution granting the applicant the degree
6]
§ 1736
BOARD OF OSTEOPATHIC EXAMINERS
§ 1738
of doctor in osteopathy, the date of his diploma
and also whether the applicant was rejected or
granted a license and the number of license gran-
ted. The record and register shall be prima facie
evidence of all matters recorded therein. Acts
19 J .6, p. 88.
Editor's Note. — The act of 1916, page 88, purported to
amend the act, from which this section was taken by ex-
tending the provisions to all other non-drug-giving
practitioners except Chiistian Scientists and masseurs. This
act was held unconstitutional in Austbrooks v. State, 147
Ga. 407, 94 S. E. 304, because this matter was not ger-
mane to the act to be amended and was not indicated by
its caption, thus violating the constitution, § 6437. The act
of 1916 purported to amend the act in other respects also.
However these sections do not include any of the provisions
of such act.
§ 1736. Fees and expenses of board. — The fees
provided for in this Chapter shall be paid in ad-
vance to the treasurer of the board to be held as
a fund for the use of said board. No funds shall
be paid out except on a warrant signed by the pres-
ident and secretary of the board, and, no expense
shall be created in excess of the fees and fines as
herein provided, but such funds shall be applied by
the board to the payment of its expenses and to
making a reasonable compensation to the members
thereof.
§ 1737. License to practice. — Any person who is
engaged in the practice of osteopathy in this State
on the first day of May, 1909, may deliver to the
secretary of the board of osteopathic examiners,
within sixty days after August 14th, 1909, a writ-
ten application for a license to practice osteopathy,
together with satisfactory proof that the applicant
is not less than twenty-one years of age, is of good
moral character, and has obtained a diploma from
some legally incorporated and reputable school of
osteopathy requiring a course of study of at least
four terms of five months each for graduation, and
upon the payment of a fee of ten dollars the secre-
tary of said board shall issue to such applicant a li-
cense to practice osteopathy in this State, which li-
cense shall have like effect for all purposes as a li-
cense issued after examination by the board of ex-
aminers as herein provided. Every license issued by
this board shall be signed by each member of the
board of examiners and shall have affixed to it, by
the person authorized to affix the same, the seal of
the State board of osteopathic examiners.
§ 1738. Examination of applicants for license. —
Any person desiring to enter upon the practice of
osteopathy in this State from and after August 14th,
1909, shall make a written application to said board
for a license to practice osteopathy in this State,
accompanied by a fee of ten dollars, together with
satisfactory proof that the applicant is at least
twenty-one years of age, is of good moral charac-
ter, and has obtained a diploma from some legally
incorporated and reputable school of osteopathy
requiring a course of study of at least three terms
of nine months each in separate years: Provided,
that any one who 'has been in the practice of oste-
opathy in some other State for a period of three
years prior to August 14th, 1909, and who is a
graduate from a legally incorporated and reputable
college of osteopathy providing a course of study
of at least four terms of five months each, shall be
[3
eligible for examination upon all other terms and
conditions provided for applicants for examination
under the provisions of this Chapter.
Upon complying with these conditions, the
State board of examiners, if satisfied with the same,
shall admit said applicant to examination before
them, which examination shall include the subjects
of anatomy, physiology, chemistry, toxicology,
pathology, diagnosis, hygiene, obseterics, gynecol-
ogy, surgery, medical jurisprudence, principles of
osteopathy, and such other subjects as the board
require. If the examination is satisfactory to the
committee, and the applicant shall have made an
average of seventy-five per centum on his examina-
tion on all subjects examined upon with not less
than sixty per centum in any one subject, the board
shall then grant said applicant a certificate to prac-
tice osteopathy in this State which certificate is a
license to practice osteopathy in this State when it
shall have been recorded by the clerk of the super-
ior court of the count}^ in which he proposes to prac-
tice, for which he shall pay the same fee as in re-
cording a deed. In case the applicant fails to pass
a satisfactory examination he may at any subse-
quent meeting of the board, within two years, have
the privilege of a second examination without the
payment of additional fee: Provided that, when in
the opinion of the president of the board, any appli-
cant has been prevented by any good cause from ap-
pearing before said board, the president shall name
a committee from the board, who shall examine
such applicant, and may, if satisfactory, grant him
a certificate to practice until the next regular meet-
ing of the board, when, if the applicant fails to ap-
pear for examination, said certificate shall be void.
Provided that the Board of Osteopathic Exam-
iners is vested with the discretion to issue licenses,
without examination of the applicant, where such
applicant has been duly licensed to practice
osteopathy in any other State in the United States,
where the legal requirements for the issuance of
such licenses are as high or higher than the legal
requirements obtaining in the State of Georgia,
upon proof thereof, and upon proof that the ap-
plicant is of good moral character and good per-
sonal and professional standing, and has followed
his profession in such other State for a period of
not less than one year immediately preceding the
date of his application for. license in this State; and
further provided, that such other State from which
any such applicant holds license practices comity
with the State of Georgia by granting licenses
without examination to holders of license from the
State of Georgia, for the practice of osteopathy:
and further provided such applicant pay all fees
and charges required by law or by the rules of the
Board of Osteopathic Examiners for the issuance
of licenses. The authority hereby conferred is en-
tirely discretionary, and the Board of Osteopathic
Examiners may in any and all instances require an
applicant to stand an examination. Acts 192:>.
p. 89.
Editor's Note.— This section has been twice amende.!
since it appeared in the code of 1910, once validly and once
by an act which has been held unconstitutional.
The amendment set out above was taken from the acts
of 1925, p. 89. This amendment added the proviso at the
end of the section which gives the board the right, in their
discretion, to issue a license to an applicant who had been
M
§ 1738(1)
BOARD OF CHIROPRACTIC EXAMINERS
§ 1741(5)
licensed by a state whose requirements were as high or
higher than this state.
The amendment of 1916, having been held unconstitutional,
is not inserted in this code. By this act (p. 88) the scope
of the section was greatly increased as it made the section
apply to all non drug giving practitioners by whatever
name called, except Christian scientists and masseurs. The
act made other changes of less importance.
The 1916 act was held unconstitutional, in Ausbrooks v.
State, 147 Ga. 407, 94 S. E. 304, because it sought to im
part into the act matter not germane to it and not in-
dicated by its caption.
§ 1738(1). Examination of present pactictioners.
—Within sixty days after the passage of this Act
all of those now practicing within this State any
other non-drug-giving school of medical practice,
within the meaning of this Act shall appear before
said board provided in this Act on a date to be fixed
by said board, and stand an examination upon
those subjects required in section 1738. Acts 1916,
pp. 88, 93.
§ 1739. License, what it authorizes. — The li-
cense provided for in this Chapter shall authorize
the holder to practice osteopathy as taught and
practiced in the legally incorporated and reputable
colleges of osteopathy as provided for in this Chap-
ter.
§ 1740. State and municipal regulations.— Oste-
opathic physicians shall observe and be subject to
all State and municipal regulations relating to the
control of contagious diseases, the reporting and
certifying of births and deaths, and all matters per-
taining to public health, the same as physicians of
other schools, and such reports shall be accepted
by the officers or department to whom the same
are made.
§ 1741. Revocation of license. — The board may
refuse to grant a certificate to any person convicted
of a felony, or of gross unprofessional conduct, or
who is addicted to any vice to such a degree as to
render him unfit to practice osteopathy, and may,
after due notice and hearing, revoke such certifi-
cate for like cause.
CHAPTER 13A.
Board of Chiropractic Examiners.
§ 1741(1). "Chiropractic" defined. — The term
"chiropractic" as used in this Act is hereby defined
as adjustment of the articulation of the human
body, including ilium, sacrum and coccyx, and
electricity in the use of X-ray photograph, but the
X-Ray shall not be used for therapeutical means.
Acts 1921, pp. 166. 167.
§ 1741(2). Board of chiropractic examiners
created.— There is hereby created and established
a board to be known by the name and style of the
Georgia Board of Chiropractic Examiners and said
Board shall be composed of five practicing chiro-
practors, who shall be of good moral character and
residents of the State of Georgia, and graduates of
chartered chiropractic schools or colleges, requir-
ing actual attendance in same, and shall have prac-
ticed chiropractic continually and resided in the
State of Georgia for a period of at least two years.
Acts 1921, pp. 166, 167.
As to the penalty for the violation of this act, see §
470 (1), P. C.
§ 1741(3). Members — term — vacancies. — The
Governor of the State of Georgia shall within
thirty days after the passage of this Act appoint
five chiropractics, not over two from the
same school or college, from a list of ten or more
names to be submitted to him by the Georgia
Chiropractic Association, who shall possess the
qualifications specified in Section two of this Act
to constitute the members of this Board. Said mem-
bers shall be so classified by the Governor that the
term of office of two shall expire in one year, two
in two years and one in three years from the date
of appointment. Annually thereafter the Gover-
nor shall appoint to fill vacancies of said Board,
licensed practitioners who possess the qualifica-
tions specified in Section two of this Act, to serve
for a period of three years, and also shall fill vacan-
cies in said Board caused by death or otherwise as
soon as practicable, who shall hold for th.e unex-
pired term of the members whose vacancy is being
supplied. Before appointing the members of said
Board the Governor shall satisfy himself that the
appointees are of character and standing, and pos-
sess the other qualifications hereinabove prescribed,
and to that end he may appoint an Examining
Board. Acts 1921, pp. 166, 168.
§ 1741(4). Election of officers; meetings; seal;
record; quorum; licenses; removals; oath of office. —
Said Board of Chiropractic Examiners shall con-
vene within thirty days after their appointment and
elect a President, Vice-President and Secretary-
Treasurer from their membership, (a) Said Board
shall hold its first session at the Capitol of the
State of Georgia in the City of Atlanta in the first
week of April and October of each year, thereafter
at such place and in such city or town as it may
agree upon, but it shall publish the date of such
meeting, place and city or town, fifteen days be-
fore such meeting in a newspaper published in the
City of Atlanta having general circulation, (b) Said
Board shall adopt a seal, which shall be affixed to
all licenses issued by them, and shall from time to
time adopt such rules and regulations as they deem
proper and necessary for the performance of their
duties, and said Board shall elect annually, a Presi-
dent, Vice President and Secretary-Treasurer. The
Secretary of said Board shall keep a record of the
proceedings of the Board. The majority of the
Board .shall constitute a quorum, (c) A license to
practice chiropractic within the State shall be is-
sued to the individual members of said Board at
the first meeting of said board upon the payment
of the regular fee provided for in this act, and due
qualification as aforesaid.
The Governor shall have power to remove from
office any member of the Board for neglect of duty
required by this Act, for incompetency, or for un-
professional conduct. Immediately and before en-
tering upon the duties of said office the members
of said Board shall take the Constitutional oath of
office, and shall file the same in the office of the
Governor of the State, who, upon receiving said
oath of office, shall issue to each member a certifi-
cate of appointment. Acts 1921, pp. 166, 168.
§ 1741(5). Practitioners; applications; certifi-
cate; fee. — Any person wishing the right to prac-
[ 378 ]
§ 1741(6)
BOARD OF CHIROPRACTIC EXAMINERS
§ 1741(9)
tice chiropractic in this State shall make written
application to said Board of Chiropractic Examin-
ers through the Secretary-Treasurer thereof in
such form as may be adopted and directed by the
Board. Each applicant shall be a graduate of a
resident course of three years of six months each,
from a chartered Chiropractic school or college
. which teaches only attendance courses, and did
not teach any of its courses by mail during attend-
ance; and said applicant shall have had literary
training equaling as much as a regular high school
course, of fourteen Carnegie units, which school
training shall be evidenced by the certificate of
any recognized, State Educational official, that the
Governor may appoint, for which certificate the ap-
plicant shall pay said official a fee of $2.00. and no
applicant shall appear before the Board or be ex-
amined without such certificate, and said applicant
shall be of good moral character. Application* shall
be in writing and shall be signed by the applicant
in his own handwriting, and shall be sworn to be-
fore some officer authorized under the laws of
Georgia to administer oaths, and shall recite the
history of the applicant's educational advantages,
how long he has studied chiropractic, what col-
lateral branches, if any, he has studied, the length
of time he has been engaged in clinical practice,
with proof thereof in the shape of diplomas, certifi-
cates, etc., and shall accompany said application
with satisfactory evidence of good character aad
reputation, (b). There shall be paid to the Secre-
tary-Treasurer of the State Board of Chiropractic
Examiners by each applicant for a license, a fee of
$25.00, which shall accompany said application.
Like fees shall be paid for any subsequent appli-
cation. Acts 1921, pp. 166, 169.
§ 1741(6). Examinations. — All examinations
shall be in writing, the subjects of which shall be
as follows: Anatomy, Physiology, Symptomatol-
ogy, Pathology, Physical Diagnosis, Neurology,
Chemistry, Hygiene, and Sanitation, Chiropractic
Orthopody, Nerve Tracing and adjusting as
taught by standard chiropractic schools or colleges.
A license shall be granted to all applicants who
shall correctly answer seventy-five per centum of
all questions asked, and if any applicant shall fail
to answer correctly sixty per centum of the ques-
tions on any branch of said examination, he or she
shall not be entitled to a license; but in no event
shall a license be granted unless said applicant is of
good moral character. Acts 1921, pp. 166, 170.
§ 1741(7). Practice. — Chiropractors who have
complied with the provisions of this Act shall have
the right to adjust patients in Georgia, according
to specified Chiropractic methods and shall ob-
serve state, municipal and public health regulations,
sign death and health certificates, reporting to the
proper health officers the same as other practi-
tioners. Chiropractors shall not prescribe or ad-
minister medicine to patients, perform surgery, nor
practice obstetricts nor osteopathy. Acts 1921 pp.
616, 171.
§ 1741(8). Licenses. — All Chiropractors bona
fide practicing in this State twelve months prior to
the passage of this Act, including the members of
the Board of Chiropractic Examiners, who are of
[37
good moral character shall be granted a license at
the first meeting of the Board of Chiropractic Ex-
aminers, upon the payment of a fee of Seventy-Five
Dollars and proof submitted in writing of these two
requisites sworn to by two county officials holding
office in the county where said applicant or licenti-
ate has been practicing before an officer authorized
to administer oaths in this State; otherwise a con-
tinuation of said practice, after the first meeting of
said Board, without a license shall be illegal and
punishable as provided by the terms of this Act.
Acts. 1921, pp. 166, 171.
§ 1741(9). Revocation of license; costs; notifica-
tion; defense. — Board of Chiropractic Examiners
may refuse to grant or may revoke a license to
practice Chiropractic in this State, or may cause a
licentiate's name to be removed from the records in
the office of the clerk of the Superior Court in any
county, upon any of the following grounds, to-wit:
The employment of fraud or deception in applying
for a license, or in passing an examination provided
for in this Act, habitual intemperance in the use of
ardent spirits or narcotics, inability or manifest in-
competency or flagrant immorality; conviction of a
crime involving moral turpitude or any violation of
the Opium Act, or the Harrison Narcotic Law, or
guilty of performing or attempting to perform a
criminal abortion or the obtaining of a fee on repre-
sentation that a manifestly incurable disease can be
permanently cured; causing the publication and
circulation of an advertisement of any remedy or
means whereby the monthly periods of women can
be regulated, or the menses, if suppressed, can be
re-established; causing the publication and circula-
tion of an advertisement relative to any disease of
the sexual organs, or guilty of any other unmoral or
unprofessional conduct.
Any person who is a licentiate or who is an appli-
cant for a license to practice Chiropractic, against
whom any of the following grounds for revoking or
refusing a license, is presented to said Board with a
view of having the Board revoke or refuse to grant a
license, said Board may upon satisfactory proof
than any such licentiate or applicant has been guilty
of any of the offenses above enumerated may re-
voke the license of said licentiate, or refuse to grant
the license to said applicant, upon a majority vote of
said Board; provided, that there be an appeal from
the judgment of said Board, but the party who is
refused a license by the board or whose license is
revoked, as the case may be, is dissatisfied with the
judgment, may appeal to the jury in the Superior
Court of the county of the residence of such dis-
satisfied party, said appeal to be had as in other
cases now provided by law. The party whose license
is revoked or refused shall be liable for cost as
follows: Preparing copy of notice, $2.00; procuring
service of said notice, $2.00; each subpoena for wit-
ness, or for the production of any book, writing or
document, $ .15; transmitting appeal, $2.00; procur-
ing cancellation of revoked license, $ .25. Said Board
is empowered to enter up judgment for such cost
as may accrue under the provisions of this Act
against the party liable therefor, as herein provided.
in favor of the board, and issue execution thereon,
which shall bear test in the name of the president of
said board, and be signed by its secretary-treasurer.
§ 1741(9)
BOARD OF CHIROPRACTIC EXAMINERS
§ 1741(15)
In all cases wherein a license has been revoked and
no appeal has been sued out within the time allowed
by law, it shall be the duty of the secretary-treas-
urer of said board, immediately after the expiration
of the time allowed for appeal, to transmit to the
clerk of the Superior Court, in whose office the re-
voked license is recorded, a copy of the order of
said board revoking said license, certified by said
secretary-treasurer with a fee of $ .25, and it shall
be the duty of said clerk to cancel the record of
said license by entering upon the face thereof a copy
of said certified order. In case wherein appeal pro-
ceedings are had and not sustained, the revoked
license shall be cancelled in the manner above pro-
vided, immediately after the final termination of
such case. The appeal herein provided for shall be
had upon the payment of cost or the making of the
affidavit in lieu thereof, as provided by law in other
cases. Upon the preferment before said board of
either of said charges above enumerated against
any licentiate or applicant for license it shall be the
duty of said board to cause written notice of the
time and place of hearing upon said charge, to-
gether with a copy of the charge preferred, to be
served upon such licentiate or applicant twenty
days before said hearing. Said board shall prepare
two copies of said written notice, and attach to
each of said written notices a copy of the charges
preferred, and cause the same to be delivered to the
sheriff or his deputy of the county of the residence
of the licentiate or applicant against whom such
charges has been preferred, together with two dol-
lars as a fee for service, who shall, within ten days,
deliver to such licentiate or applicant personally or
leave at the most notorious place of abode of such
party, one of said notices, with copy of said charge
attached, and then return the other notice, with
copy of said charge attached thereon, to said board,
together with the said officer's entry of service there-
on. Said licentiate or applicant shall have the privi-
lege to make defense at said hearing, either in person
or attorney, and no application to said board he shall
be furnished by said board with a subpoena for any
witness in his behalf, or for the production of any
book, writing, paper or document to be used in his
behalf on said hearing. Said board shall have the
power to cornpel the attendance of any witness or
the production of any book, writing or other docu-
ment in the possession, custody or control of any
witness or other person refusing to produce any
book, writing or other document or to appear or
testify, without legal excuse, at such hearing of said
board, after having been served with a subpoena
issued by said board requiring such witness to ap-
pear, produce any books, writing or other document,
or testify, at such hearing, shall be guilty of con-
tempt, and upon certification of such act by said
board to the Judge of the Superior Court in whose
jurisdiction said hearing is held or to be held, the
Judge shall punish in the same as though committed
before him. No license of any applicant shall be
refused, nor license of any licentiate shall be revoked
on account of the default or failure of the applicant
or licentiate to appear, but in the case of default
said board may proceed with the hearing, and upon
satisfactory proof made of the truth of the charge
preferred, refuse a license to the defaulting appli-
cant or revoke the license of such defaulting licenti-
ate, regardless of the absence at said hearing of said
applicant or licentiate. Acts 1921, pp. 166, 171.
§ 1741(10). New license. — Said Board may at
any time within two years of the refusal or revoca-
tion or cancellation or registration under this Act.
by a majority vote, issue a new license or grant a
license to the person affected, restoring him to or
conferring upon him all the rights and privileges of,
and pertaining to the practice of Chiropractic as
defined and regulated by this Act, upon showing
good moral character and said applicant or licenti-
ate possessing the qualifications required under the
terms of this Act. Any person to whom such have
been restored shall pay to the secretary-treasurer
the sum of Twenty-Five Dollars upon the issuance
of a new license. Acts. 1921, pp. 166, 175.
§ 1741(11). Record of license.— Every person
who shall have received a license from the Board of
Chiropractic Examiners shall have it recorded in
the office of the Clerk of Superior Court of the
county in which he resides and shall likewise have
it recorded in the counties in which he shall sub-
sequently remove for the purpose of practicing
Chiropractic, and pay a fee of $1.00 to record same
in each county, to the Clerk of the Superior Court,
in which the same is recorded. Acts 1921, pp. 166,
175.
.§ 1741(1&). Examination fees; accounts; com-
pensation of board. — All examination fees received
by the State Board of Chiropractic Examiners for
defraying their expenses in carrying out the provi-
sions of this Act. (a). The Secretary-Treasurer
shall keep a true and accurate account of all funds
received and all vouchers issued by the Board, (b).
The members of said board shall receive a per diem
of $10.00 for each day during which they shall be
actually engaged in the discharge of their duties,
and mileage at the rate of three cents per mile
necessarily traveled in going to and from meetings
of said board, (c). Such per diem and mileage and
such other incidental expenses necessarily con-
nected with said board shall be paid out of the fund
of the State Board of Chiropractic Examiners and
not otherwise. Acts 1921, pp. 166, 175-6.
§ 1741(13). Treasurer's bond. — The treasurer of
said Board shall give bond in such sum and with
such securities as the Board may deem proper.
Upon sufficient proof to the Governor of the in-
ability, misconduct, or such other conduct which in
the discretion of the Governor is unbecoming a
member of said board, said member shall be dis-
missed by the Governor, and the Governor shall
appoint as his successor some licensed Chiro-
practor practicing in this State. Acts 1921, pp. 166,
176.
§ 1741(14). Practitioners licensed in other state.
— Persons licensed to practice Chiropractic under
the laws of any other State having equal require-
ments of this Act, may in the discretion of the
board be issued a license to practice in this State
without examination upon the payment of a fee of
$50.00. Acts 1921, pp. 166, 176.
§ 1741(15). Other methods of healing not inter-
fered with. — Nothing in this Act shall be construed
[ 380 ]
§ 1741(16)
BOARD OF EXAMINERS IN OPTOMETRY
§ 1741(23)
to interfere with any other method or science of
healing in this State. Acts 1921, pp. 166, 177.
§ 1741(16). Males and females. — Whenever the
masculine gender is used, the same shall include the
feminine and neuter. Acts 1921, pp. 166, 177.
§ 1741(17). Effect of partial invalidity.— If for
any reason any section, provision, clause, or any
part of this Act shall be held to be unconstitutional,
and invalid, then that fact shall not affect or destroy
the validity or constitutionality of any other section,
provision, clause or part of this Act, which is not
in and of itself unconstitutional or invalid, and the
remaining portions of this Act shall be enforced
without regard to the section, provision, clause or
part so held to be invalid. Acts 1921, pp. 166, 177.
As to the penalty for the violation of this act, see §
(1), P. C.
170
CHAPTER 13B.
Board of Examiners in Optometry.
§ 1741(18). Optometry defined. — Optometry or
the practice thereof is denned to be the employment
of any means, other than the use of drugs, for the
measurement of the powers of vision and the
adaptation of lenses for the aid of some. Acts 1916.
p. 83.
As to the penalty for the violation of this act, see §
473 (1), P. C.
§ 1741(19). Appointment of board; qualifica-
tion.— Within thirty days after the passage of this
Act, it shall be the duty of the Governor to appoint
for this State a Board of Examiners in Optometry
to consist of five members. The said board shall be
styled the Georgia State Board of Examiners in
Optometry, and its members shall be persons who
have been actively engaged in the practice of
optometry in the State of Georgia for five years im-
mediately preceding such appointment; provided
that no person is eligible to appointment on this
board who is connected in any way with a school
teaching optometry or who sells optical goods at
wholesale. Be it further provided, that after the
appointment of the first board only optometrists
registered under the provision of this Act shall be
eligible for appointment. The said board shall file
with the Governor annually a complete list of the
registered optometrists in this State. Within thirty
days after the Governor shall have notified the
several members of their appointment, each mem-
ber shall subscribe and forward to the Governor
the following oath: "I do swear that I will faithfully
and impartially perform the duties of a member of
the Board of Examiners in Optometry for the State
of Georgia to the best of my ability, so help me
God." Upon. such oath being filed in the office of
the Governor of this State, he shall issue to said
examiner a certificate of appointment. Acts 1916,
pp. 83, 84.
§ 1741(20). Terms of office; vacancy.— The
term of office of each member of said board of ex-
aminers in optometry shall be three years, provided
that two members shall be appointed for one year,
two for two years, and one for three years, and after
-the expiration of the terms of office of the members
so first appointed, subsequent appointments shall
be for a term of three years, and any vacancy that
may occur from any cause shall be filled by the
Governor for the unexpired term. Acts 1916, pp. 83,
84.
§ 1741(21). Officers of board; bond of secretary;
meetings; records. — Said board at the first meeting
after the appointment of its members and annually
thereafter, shall elect a president, vice-president
and secretary-treasurer, who shall hold their offices
until their successors are elected and qualified. The
secretary-treasurer shall give a bond with security
in such sum as said board may determine. Said
board shall prescribe such rules, regulations and by-
laws for its proceedings and government as will
carry into effect the provisions of this Act. There
shall be at least two regular meetings of the board
of examiners held every year on the first Wednes-
day in January and July. Special meetings may be
held on the call of the president and two other
members. A majority of said board shall constitute
a quorum. The board shall keep a record of its pro-
ceedings and a register of all applicants for license,
giving the name, age and residence of applicant and
the county in which he proposes to practice; and al-
so show the date of examination, whether the ap-
plicant was rejected or granted a license, and the
manner of the license granted. Act 1916, pp. 83, 84.
1741(22). Fees. — All fees provided for in this
Act shall be paid in advance to the treasurer of the
board, to be held as a fund for the use of said board.
No funds shall be paid out except on a warrant
signed by the president and secretary of the board,
and no expense shall be created in excess of the fees
as herein provided. Such funds shall be applied by
the board to the payment of its expenses and to
making a reasonable compensation to the members
thereof. Acts 193 6, pp. 83, 85.
§ 1741(23). Registry and certificate; conditions,
examination, etc. — All persons engaged in the
practice of optometry or who wish to begin prac-
tice of same in this State shall make application to
the board to be registered and for a certificate of
registration. Such registration and certificates shall
be granted to such applicants, but only upon com-
pliance with the following conditions contained in
subdivisions 1, 2 and 3 of this section.
(1) The applicant shall be registered and given a
certificate of registration on passing a satisfactory
examination limited to a demonstration of practi-
cal work, if he shall present satisfactory proof on
or before March 1, 1917, of being twenty-one years
of age, of good moral character and of having been
continuously engaged in the practice of optometry
in this State for at least two years prior to the pas-
sage of this Act. The fee for registering such ap-
plicants shall be ten dollars.
(2) The applicant shall be registered and given
a certificate of registration if he holds a valid li-
cense from such other State boards of optometr}-
as may be, under the rules of comity, recognized
by the Georgia State Board of Examiners in Op-
tometry. The fee for registering such applicant
shall be ten dollars.
(3) From and after March 1, 1917, any applicant
for registration under this Act shall be required to
pass an examination as hereinafter provided. Such
[ 381
§ 1741(24)
DENTISTS AND PRACTICE OF DENTISTRY
§ 1754(1)
applicant shall be twenty-one years of age, of good
moral character, and shall be possessed of an edu-
cation equal to a two years' high school course. He
shall have been employed as an assistant in the of-
fice of an optometrist, registered under this Act,
for a period of not less than two years, or shall hold
a diploma from a school of optometry, approved by
this board, provided that after July 1, 1917, all ap-
plicants for examination shall hold a diploma from
a school of optometry requiring a two years' at-
tendance course and satisfactory to this board. The
said board shall examine all applicants shown to
have the necessary qualifications, as above set
forth, in the following subjects: Ocular anatomy
and physiology; theoretic optics; theoretic and
practical optometry, including normal and abnormal
refractive, accommodative and muscular conditions
of the eye as applied by recognized methods of
subjective and objective optometry when determin-
ing the need of glasses. When the applicant shall
attain an average standing of 75 per cent, on all
subjects submitted he shall be deemed to have
passed satisfactorily and be given a certificate of
registration, which certificate, and any other certifi-
cate provided for in this section shall operate as a li-
cense to practice optometry in this State when it
shall have been recorded in the office of the clerk
of the superior court of each county in which said
person practices. The clerk of said court shall be
entitled to a fee of one dollar for recording such
certificate. The fees for applicants of this class
shall be fifteen dollars for examination and ten dol-
lars for registration. Failure to pass a satisfactory
examination shall not debar the applicant from par-
ticipating in subsequent examinations before said
board, upon his complying with the provisions of
this Act. Acts 1916, pp. 83, 85.
§ 1741(24). Refusal and revocation of certifi-
cates.— The State Board of Examiners in op-
tometry shall refuse to issue the certificate of reg-
istration, provided for in this Act to any person
who shall have been guilty of grossly unprofes-
sional and dishonest conduct, and said board after
due notice and hearing may revoke the certificate
issued ito any optometrist whose certificate of reg-
istration was obtained or issued through error,
fraud or perjury, or who shall be guilty of an of-
fense involving moral turpitude; provided an ap-
peal may be taken from the action of the board to
the superior court of the county in which the certi-
ficate was refused or revoked by the board, upon
applicant giving a good and satisfactory bond to
be approved by the court, to secure the cost of such
an appeal should the appeal be determined against
him. Acts 1916, pp. 83, 87.
Constitutionality. — The part of this section giving the
Board power to ''refuse to issue the certificate of registra-
tion, provided for in this Act, to any person who shail
have been guilty of grossly unprofessional and dishonest
conduct," is contrary to the constitution, § 6359, which
guarantees due process of law, and therefore is void and
unenforceable. Mott v. Board, 148 Ga. 55, 95 S. E. 867.
Where a legislative act provides for times and places for
the meetings of a board authorized to perform duties dele-
gated to it, no further notice need be given; but where the
act fails to specify any place of meeting, and permits un-
limited meetings besides those provided, and requires no
hearing, the essentials of the constitutional guarantee of
due process of law are not met. Mott v. Board, 148 Ga.
55, 95 S. E. 867.
The provision in the act for an appeal to the superior
[
court after the board has rendered judgment of condemna-
tion is not a compliance with the mandate of the constitu-
tion. Mott v. Georgia State Board of Examiners in
Optometry, 148 Ga. 55, 95 S. E. 867.
§ 1741(25). Unlawful practice.— It shall be un-
lawful for any person to practice optometry in the
State of Georgia unless he shall have first obtained
a license from the State Board of Examiners, as
herein provided and filed same with the clerk of
the superior court of the county in which such prac-
tice is conducted. Acts 1916, pp. 83, 87.
§ 1741(26). Act not applied in what cases.—
Nothing in this Act shall be construed to apply to
physicians and surgeons duly licensed to practice
medicine under the laws of this State, nor to pre-
vent persons from selling spectacles or eyeglasses
on prescription from any duly qualified optometrist
or physician, nor to prevent any person or persons
selling glasses as an article of merchandise or from
using test cards in connection with the sale of such
glasses at a permanently located place in this State
when not trafficking or attempting to traffic upon
assumed skill in optometry. Neither shall any
thing in this Act be construed to authorize any
registered optometrist to prescribe or administer
drugs or practice medicine or surgery in any man-
ner as defined by the laws of Georgia; nor shall
the same be construed to authorize any such per-
son to use the title of M. D. or any other title men-
tioned in section 1697(14). Acts 1916, pp. 83, 87.
As to the penalty for the violation of this act, see §
473 (1), Pt C.
CHAPTER 14.
Dentists and Practice of Dentistry.
§§ 1742-1754 Repealed.
Editor's Note. — While these sections were not expressly
repealed by the act of 1920, §§ 1754 (1) et seq., they are
impliedly repealed by such acts and therefore not set out
in this code.
§ 1754(1). Board of Dental Examiners; members
designated; vacancies; eligibility.— A Board of
Dental Examiners is hereby created for said State
to be known as the Board of Dental Examiners of
Georgia. Said board shall consist of five members
to be appointed as hereinafter stated, provided,
however, that the present members of the Board of
Dental Examiners of said State, to-wit: Thomas
Cole of Newman, D. D. Atkinson of Brunswick,
Sam D. Rambo of Marietta, P. E. Callihan of
McRae and H. Herbert Johnson of Macon, shall
each serve as members of the board herein created
until his respective term as a member of the pre-
sent board of Dental Examiners of Georgia shall
expire and until his successor is appointed. The
members of the board herein created shall be ap-
pointed and commissioned by the Governor of said
State, as follows, to-wit: The Georgia State Den-
tal Society shall, at its first annual meeting after
the passage of this Act and shall at each annual
meeting thereafter, nominate four reputable prac-
ticing dentists, and from those so nominated the
Governor of said State shall appoint one member
to said Board of Dental Examiners, to serve five
years and until his successor is appointed. The
terms of the members of said board shall be for a
period of five years beginning each one every year
82 ]
§ 1754(2)
DENTISTS AND PRACTICE OF DENTISTRY
§ 1754(9)
on the first day of August. In case of a vacancy
on said board, the same shall be filled by appoint-
ment of the Governor, upon recommendation of the
President of the Georgia State Dental Society.
Provided, however, that no one shall be eligible as
a member of said Board unless he shall be a citizen
of said State and shall have been lawfully engaged
in the practice of dentistry for five or more years
at the time of his appointment, and shall not be
financially interested in, nor connected with any
dental college. Provided, further, that the present
organization of the Board of Dental Examiners of
Georgia be continued under the provisions of this
A.ct by the members now composing said board un-
til changed by the members of said board or their
successors." Acts 1920, pp. 132, 133; 1921, pp. 179,
180.
As to the penalty for the violation of this act, see §§
471 (1), 472 (1) and 472 (2), P. C.
§ 1754(2). Officers.— The Board of Dental Ex-
aminers of Georgia herein created shall have the
following officers elected by the board from its
members, to-wit: A President and Secretary and
Treasurer and such other officers as the board in
its discretion may elect, provided, however, that
the office of Secretary and Treasurer shall be filled
by the same person. Acts 1920, pp. 132, 134.
§ 1754(3). Time of meeting.— It shall be the
duty of said Board of Dental Examiners of Georgia
to meet annually at Atlanta at the close of the ses-
sion of a majority of the dental colleges of the
State, and to meet regularly at the same place dur-
ing the same week as the annual meeting of the
Georgia State Dental Society, and to hold such
other meetings when and where the duties of the
board may require. It shall also be the duty of said
board to meet in any call meeting that may be
ordered in writing by not less than three members
of said board, or by its President upon not less than
fifteen days notice in writing, stating the time, place
and object for such call meeting. Acts 1920, pp. 132,
134.
§ 1754(4). Examination of applicants; licenses;
minutes; by-laws. — It shall also be the power and
duty of said board at its annual meeting in Atlanta,
and at such other times and places as it may direct,
to examine all applicants for license to practice
dentistry in said State who are entitled under this
A.ct to be so examined, and to issue license to prac-
tice dentistry according to the provisions of this
Act; to collect and supply all fees as directed by
this Act; to keep a book showing the names of all
persons to whom license has been granted by said
board to practice dentistry; to keep a book of the
names, arranged in alphabetical order, of all per-
sons authorized to practice dentistry in said State;
to keep minutes and a record of all the acts of said
board and such other books and records as may be
accessary to show the acts of said board; to make
ill necessary by-laws and rules for the government
Df said board and the performance of its duties and
to have and use a common seal bearing the name
"Board of Dental Examiners of Georgia." Acts
1920, pp. 132, 134.
§ 1754(5). Records— It shall be the duty of the
Secretary of said board to keep at his office in said
State, the minutes of said board, together with all
books and records of said board, which said books
and records shall be public records, open to the in-
spection of the public, except on Sundays and legal
holidays, a copy of all or any part of any record
or book certified by the Secretary and Treasurer
of the board, with the seal of said board attached,
shall be primary evidence in any Court of the
State, and it shall be the duty of the Secretary and
Treasurer of said board to furnish to any person
making application therefor, a copy of any part or
all of any record or book of said board upon the
applicant paying a fee of fifteen cents per hundred
words so copied, which fee shall be retained by the
Secretary and Treasurer as compensation for his
services in making and certifying such copy, all of
which copies shall be certified by the Secretary and
Treasurer and be under the seal of said board. Acts
1920, pp. 132, 135.
§ 1754(6). Practice of dentistry defined.— All
persons shall be held to be practicing dentistry with-
in the meaning of this Act who shall charge a fee
or salary or any other reward, whether paid or un-
paid to anyone directly or indirectly, for operations
or parts of operations of any kind in the treatment
of diseases or leisions of the human teeth, mouth,
gums or jaws, or extract teeth or attempt to correct
the malposition thereof or who shall fill or crown
a human tooth or teeth, or do any operation what-
soever on the human tooth, or teeth, gums or jaws,
or who shall make examination of any human tooth,
teeth, gums or jaws, or take an impression thereof
for the purpose of treating or operating upon the
same or who shall by any means whatsoever make-
it known, or imply that he will do such operations.
And be it further enacted that proof of any one or
all of the acts mentioned above in the section shall
constitute prima facie evidence of the practice of
dentistry. Acts 1920, pp. 132, 136.
§ 1754(7). Eligibility of applicants for license. —
Said board may examine only those applicants for
license to practice dentistry in said State, who furn-
ish satisfactory evidence of a good moral character,
of having been graduated from a school of dentistry,
whose term and curriculum is equal to that of a ma-
jority of the schools of dentistry in the United
States, and if such examination is satisfactory to the
board, a license to practice dentistry in said State
shall be granted to such applicant. Acts 1920, pp.
132, 136.
§ 1754(8). License without examination. — Said
board may without examination by comity under
such rules and conditions as it may prescribe, license
any one of good moral character, who has been reg-
ularly licensed and authorized by the laws of any
other State to practice dentistry, to practice dentis-
try in Georgia; and said board may also in its dis-
cretion, enter into an agreement with any similar
board of any other State to the effect that the parties
to such agreement under the condition therein stipu-
lated, will grant license to practice dentistry on the
faith of a license granted by either party to said
agreement. Acts 1920, pp. 132, 136.
§ 1754(9). Registration of license; persons in-
tendng not immediately to practice. — All persons
licensed by said board to practice dentistry shall
[ 383 ]
§ 1754(10)
DENTISTS AND PRACTICE OF DENTISTRY
§ 1754(19)
cause such license to be registered by the Clerk
of the Superior Court in the county or counties
in which they may desire to practice dentistry be-
fore beginning of such practice, and that when
a license is issued to any person to practice den-
tistry who does not intend immediately to practice
in the State of Georgia, the same shall be regis-
tered with the Clerk of the Superior Court of the
County of Fulton, said State, and should
such persons subsequently desire to practice
dentistry in said State, then such license shall be,
before the beginning of such practice, registered
in the county or counties in which such persons
practice. Any one who does not desire to im-
mediately practice dentistry upon the issuance of
a license to him by said board, shall cause same
to be registered in the office of the Clerk of the
Superior Court in the county of the residence of
such person, and if such person is a non-resident
of said State, he shall cause the same to be regis-
tered in the office of the Clerk of the Superior
Court of Fulton County, said State. All persons
to whom a license may be granted shall so regis-
ter their license, as provided in this Act, within
six months, from the date of issuance thereof,
whether practicing or not, and to pay the said
clerk a fee of fifty cents for said service, and the
failure of any one to so register his license shall
work a forfeiture thereof and the same shall be-
come null and void, but may be restored by pay-
ing to said board the sum of twenty dollars.
Acts 1920, pp. 132, 137; 1921, pp. 179, 181.
§ 1754(10). Certificate for registration. — The
board shall prescribe a form of certificate for
registration with the Clerk of the Superior Court,
and a copy shall be furnished any one by the
Secretary upon demand, upon a charge of fifty
cents fee. Acts 1920, pp. 132, 137.
§ 1754(11). Unlawful practice. — It shall be un-
lawful for any person to practice dentistry in the
State of Georgia, unless said person shall have
obtained a license to so practice from the Board
of Dental Examiners duly authorized and ap-
pointed under the provision of this Act. Acts
1920, pp. 132, 138.
§ 1754(12). Names of practitioners.— All signs,
cards, announcements or methods used to state or
imply that dentistry may or will be done by any
one at any place in said State must also include
the full names of each individual practicing
dentistry in such place. Acts 1920, pp. 132, 138.
§ 1754(13). Census.— Said Board of Dental Ex-
aminers may, through its members or other
suitable persons, from time to time, take a census
of all practicing dentists of any locality, city or
county in said State when it may consider it
necessary for the purpose of carrying out the
provisions of this Act, and said board may at any
time cause the names of all regular licensed
dentists in any locality, city or county, to be
posted or published, and said board is authorized
to pay for taking such census, and so posting or
publishing such names. Acts 1920, pp. 132, 138.
§ 1754(13^/2). Revocation of license. — If any
dentist shall be guilty of cruelty, incapacity, un-
skillfulness, gross negligence, indecent conduct
toward patients or any such professional misbe-
havior, or show unfitness upon the part of the
[3
dentist to practice, shall be guilty of misde-
meanor, and on conviction in any Court of this
State having jurisdiction of such offense, shall be
fined as prescribed in Section 1065 of the Penal
Code of Georgia, and his license to practice den-
tistry shall be revoked by the board. Acts 1920,
pp. 132, 138.
§ 1754(14). Notice and hearing of charges;
certiorari. — On a trial before the board of any
party for any cause to revoke license, the defend-
ant having due notice of the time and place of
hearing, and a copy of the charges served upon
him fifteen days before said hearing, that upon
conviction of said charges, or any one of them,
shall have the right of certiorari to the Superior
Court; subpoenas signed by the Secretary and
Treasurer, issued in behalf of both parties, testi-
mony can be taken by interrogatories or disposi-
tions as now provided by law. Acts 1920, pp. 132,
139.
§ 1754(15). Enforcement of orders. — Said board
shall have the power to enforce any and all of
its lawful orders or subpoenas and to punish as for
a contempt any one obstructing or violating
same, and shall also have the power to conduct
any and all hearings before it in an orderly and
legal manner, and to punish anyone as for a con-
tempt who may attempt to or who may interfere
with or in any manner obstruct such hearing, and
may also punish as for a contempt any act of in-
decorum or discourtesy committed in the presence
of the board when in session. The said board
may fine anyone for a contempt not exceeding
one hundred dollars, and in default of the pay-
ment thereof may commit the offender to any
common jail not exceeding ten days. Acts 1920,
pp. 132, 139.
§ 1754(16). Service of orders and subpoenas. —
It shall be the duty of the several sheriffs of this
State, their deputies and the constables of said
State to serve any and all lawful orders and sub-
poenas of said board, and that said board may
appoint any person to serve such orders and sub-
poenas whose duty it shall be to execute the
same. Acts 1920, pp. 132, 140.
§ 1754(17). Notice of legal process. — All orders
and processes of the board shall be signed and at-
tested by the Secretary and Treasurer of the
board in the name of the board, with its seal at-
tached, and that any notice or legal process
necessary to be served upon the board may be
served upon its Secretary and Treasurer. Acts
1920, pp. 132, 140'.
§ 1754(18). Filing of addresses by members;
notice. — Each member of the board shall upon
the receipt of his commission, file with the Secre-
tary and Treasurer his postoffice address and
thereafter a notice of any change therein and any
notice mailed to such address by the Secretary
and Treasurer of the board, shall be deemed to
comply with the requirements of this Act as no-
tice to them. Acts 1920, pp. 132, 140.
§ 1754(19). Quorum. — Three members of the
board shall constitute a quorum for the transac-
tion of business at any meeting of the board and
should a quorum not be present on the day ap-
pointed for such meeting, then those members
present may adjourn the meeting from time to
84]
§ 1754(20)
BARBERING AND BOARD OF BARBER EXAMINERS
§ 1754(29)
time until a quorum is present. Acts 1920, pp.
132, 140.
§ 1754(20). Fees; expenses; annual reports. —
Said board shall charge in advance each person
applying to or appearing before it for examination
for license to practice dentistry, a fee of twenty
dollars, and shall also charge each person apply-
ing to it for the renewal of a license or authority
to practice dentistry or for the establishment of
a license or authority that has been lost, five dol-
lars, to be paid in advance, which said charges
shall cover the entire service for granting or is-
suing license to practice dentistry and shall be
paid to the Secretary and Treasurer of the board,
and in no case refunded to the applicant. Out of
such the members of the board may receive a
compensation for their services, the sum of seven
dollars each for each day actually engaged in the
duties of their office, and may also receive all
necessary expenses actually incurred in attending
the meeting of the board or in the prosecution of
its business. The said board may also from such
funds pay the expenses of one of its members to
the annual meeting of the National Association of
Dental Examiners and also the annual member-
ship dues to said association, and all other inci-
dental expenses. All expenditures by the board
shall be paid from the funds received by the board
under the provisions of this Act upon order of the
board by its Secretary and Treasurer, and no part
of the salary of any member or officer of the
board or any other officer of the board or of any
other expense incurred by the board, shall ever
be paid out of the State Treasury. All money
received in excess of the expenses ordered to be
paid by the board shall be held by the Secretary
and Treasurer as a special fund for the meeting of
the expenses of the board and the Secretary and
Treasurer of the board shall give such bond con-
ditioned for the faithful performance of his duty
from time to time, as the board ma}^ direct, and
shall receive such compensation for his services
from funds aforesaid, as the Iboard may prescribe.
The said board shall make an annual report of
its proceedings to the Georgia State Dental So-
ciety, including a report of all money received
and disbursed by said board under the provisions
of this Act. Acts 1920, pp. 123, 140; 1921, pp. 179,
182.
§ 1754(21). Counsel. — Said board is also empow-
ered for the purposes of carrying out the provi-
sions of this Act and to enforce the same by
prosecution or otherwise, to employ and pay
counsel to represent the board out of the funds
collected by the said board and is also empowered
and to so pay counsel to prosecute anyone in the
Courts of. this State for the violation of the pro-
visions of this Act, and to pay other expenses in-
curred in prosecuting cases. Acts 1920, pp. 132,
143.
§ 1754(22). Burden of proof. — It shall be, on the
trial of any one charged with the violation of the
provisions of this Act, or with the illegal prac-
tice of dentistry in said State, incumbent on the
defendant upon proof that he practiced dentistry
in said State, to show that he had authority under
the law to so practice dentistry to exempt himself
from the penalty of such violation. Acts 1920, pp.
132, 142.
Ga. Code— 13 [ 38
§ 1754(23). Practitioner's fee. — No one practic-
ing dentistry in this State without first complying
with the provisions of this Act shall be entitled to
collect any fee or reward for his services. Acts
1920, pp. 132, 142.
§ 1754(24). Persons lawfully authorized to prac-
tice dentistry; registration. — No person lawfully
authorized to practice dentistry in said State at
the time of the passage and adoption of this Act
shall be required to obtain any license or addi-
tional authority to practice dentistry in said State;
provided, however, that all persons now lawfully
practicing dentistry in this State shall register as
a practicing dentist, with the Secretary and
Treasurer of said Board, and pay a fee of fifty
cents therefor to said Secretary and Treasurer
for said service, as provided in this Act. Acts
1920, pp. 132, 142.
§ 1754(25). College clinics. — Nothing in this
Act shall prohibit regularly chartered dental col-
leges or dental departments of reputable colleges
and universities from maintaining regular college
clinics under the supervision of regularly licensed
and registered demonstrators, nor shall this Act
prevent regularly licensed dental practitioners of
other States and counties from giving clinics be-
fore any dental society or association of this State
whose objects are the advancement and. improve-
ment of dentistry as a science. Acts 1920, pp. 132,
142.
§ 1754(26). Application of act. — The provisions
of this Act shall not apply to regularly licensed
physicians of said State in extracting teeth or per-
forming surgical operations and in charging there-
for; and the same shall not apply to any person
extracting teeth without fee or reward. Acts
190, pp. 132, 143.
§ 1754(27). Exemption from jury duty. — Any
person practicing dentistry in this State may be
and is hereby exempt from jury duty, provided
that this exemption shall not operate to disqualify
those dentists who may wish to serve as jurors.
Acts 1920, pp. 132, 143.
As to the penalty for the violation of this act, see §§
471 (1), 472 (1) and 472 (2), P. C.
CHAPTER 14A.
Barbering and Board of Barber Examiners.
§ 1754(28). Barbering unlawful without certifi-
cate of registration. — It shall be unlawful for any
person to follow the occupation of barbering in
cities or towns in excess of five thousand inhabi-
tants unless he will have first obtained a certi-
ficate of registration as provided in this Act. Acts
1914, p. 75; 1920, p. 109.
As to the penalty for the violation of this act, see §§
476 (1), 476 (2), P. C.
Constitutionality — The act as amended by the act of 1920,
is not unconstitutional, because it violates § 6391 of the
constitution or the equal-protection clauses of the four-
teenth amendment of the constitution of the United States
and of the constitution of this State. Cooper v. Rollins,
152 Ga. 588, 110 S. E. 726.
§ 1754(29). Barbering defined. — To shave any
living persons, or trim the beard, or cut or dress
the hair of any such person for hire or pay to the
person performing any such services or to any
5]
§ 1754(30)
BARBERING AND BOARD OF BARBER EXAMINERS
§ 1754(36)
other person, shall be construed as practicing the
occupation of barbering within the meaning of
this Act. Acts 1914, p. 75.
§ 1754(30). Board of barber examiners estab-
lished; appointment, term, qualification, etc. —
There shall be established a board, to be styled
the State Board of Barlber Efxaminers, which will
hereafter be referred to as the board, which said
board shall be composed of three members, which
members shall have attained the age of twenty-
one years, and have had at least five years' experi-
ence in the practice of the occupation of a barber,
and shall be appointed by the Governor of this
State for a term of three years. The first ap-
pointments made under this Act shall be for 1, 2
and 3 years, respectively, from the first day of Oc-
tober next after the approval of this Act, and all
vacancies on said board, however caused, shall be
filled by the Governor for the remainder of the
unexpired term. Each member of said board shall
hold office until his successor is appointed and
qualified, and no person shall Ibe qualified to act
as a member until he shall have given a bond in
the sum of one thousand dollars, with surety to
be approved by the Secretary of the State, condi-
tioned for the faithful and impartial performance
of his duties, which member thereof shall be con-
sidered a public officer, and shall take the oath re-
quired of such. Acts 1914, pp. 75, 76.
§ 1754(31). Rules prescribing sanitary require-
ments; what barber shop a nuisance. — Such board
shall have power to adopt reasonable rules and
regulations prescribing the sanitary requirements
of a barber shop, subject to the approval of the
State Board of Health, and to cause the rules and
regulations to be printed in a suitable form, and
to transmit a copy thereof to the proprietor of
each barber shop in the State. It shall be the duty
of every proprietor or person operating a barber
shop in cities in excess of five thousand inhabi-
tants of this State to keep posted in a conspicuous
place in his shop, so as to be easily read by his
customers, a copy of such rules and regulations.
A failure of any such proprietor to keep such
rules so posted, or to olbserve the requirements
thereof, shall be sufficient ground for the revoca-
tion of his license, but no license shall be revoked
without a reasonable opportunity being offered to
such proprietor to be heard in his defense. Any
member of said board shall have power to enter
and make reasonable examination of any barber
shop in cities in excess of five thousand inhabi-
tants in this State during business hours for the
purpose of ascertaining the sanitary conditions
thereof. Any barber shop in which tools, appli-
ances and furnishing in use therein are kept in an
unclean and unsanitary condition, so as to endan-
ger health, is hereby declared to be a public nui-
sance, and the proprietor thereof shall be subject
to prosecution and punishment therefor. Acts
1914, pp. 75, 76.
§ 1754(32). Compensation of board; secretary.
— Each member of said board shall receive a com-
pensation of ($5.00) dollars per day for actual
services and ten ($-10) cents per mile actually
traveled in attending to the business of the board,
which compensation shall be paid out of any
mone3^s in the hands of the treasurer of said board,
after an allowance thereof by the (board upon an
itemized and verified claim therefore being filed
with the secretary by the member claiming the
same. The secretary's office shall be kept in the
office of the State Board of Health, and, he shall
spend at least a day in each week at such office at-
tending to his official duties, but in no event shall
any part of the expenses of the board or any
member thereof be paid out of the State Treas-
ury. Acts 1914, pp. 75, 77.
§ 1754(33). Certificates of registration; rules,
etc; seal; officers of board; powers. — It shall be
the duty of said board to issue certificates of reg-
istration as hereinafter provided, the same being
under the seal of the board, and signed by its pres-
ident and secretary. Said board shall have power
to adopt all reasonable rules and regulations for
the enforcement of and carrying out the purposes
of this Act, provided same are not inconsistent
with the constitution or laws of the United States
or of this State, or with the terms of this Act.
Said board shall adopt a seal, to be used to
authenticate all its official papers and acts. Said
board shall elect one of its members president,
one secretary and one treasurer of the board, to
hold office during the pleasure of the board. Said
board shall have power to subpoena witness, ad-
minister oaths, hear and take testimony in any
matter over which it may have jurisdiction. Acts
1914, pp. 75, 77.
§ 1754(34). Reports to Governor; payments to
State Treasurer. — Said board shall on the 1st day
of January in each year report to the Governor a
full statement of the receipts and disbursements
of the board for the preceding year, and any
moneys in the hands of the treasurer of said board
at the time of making such reports in excess of
ifive hundred dollars shall be paid over to the State
Treasurer, to be kept by him for the future main-
tenance of said board, and to Ibe disbursed by him
upon warrants issued by said board. Acts 1914,
pp. 75, 77.
§ 1754(35). Examination of applicants to reg-
ister.— Said board shall hold each year throughout
the State at such times and places as it shall des-
ignate beforehand, at least four examinations to
examine applicants for certificates of registration
under this Act; notice of any such examinations
shall be given by publication in one or more news-
papers of general circulation throughout the State
at least ten days before the holding of such exam-
inations. All expenses so incurred shall be paid
out of moneys arising from the terms of this Act.
Acts 1914, pp. 75, 78.
§ 1754(36). Certificate of registration. — Every
person engaged as a barber within this State at
the date of the approval of this Act, and who has
practiced such occupation for a period of three
years prior to the approval of this Act, shall, within
ninety days after the approval of this Act, file
with the secretary of said board, an affidavit, set-
ting forth his name, residence and length of time
during which and the place in which he has prac-
ticed such occupation, and shall pay to the treas-
urer of said board two dollars; a certificate of reg-
istration shall be then issued to him entitling him
to practice the trade or occupation of a 'barber in
this State, subject to the terms and provisions of
[ 386 ]
§ 1754
BOARD OF EXAMINERS OF ARCHITECTS
§ 1754(44)
this Act, and any amendment thereto. Acts 1914,
pp. 75, 78.
§ 1754(37). Examination of applicants for cer-
tificates.— Any person not included in Section
1754(36), or not qualifying under said section,
desiring to obtain a certificate of registration un-
der the terms of this Act, shall make application
to said board therefor, and shall pay to the treas-
urer of said board an examination fee of five dol-
lars, and shall present himself at the next meet-
ing of said board held for applicants, and if upon
such examination it shall be made to appear that
such applicant is above nineteen years of age, is
of good moral character, is free from contagious
or infectious disease, that he has studied the trade
of a barber for at least three years under one or
more practicing barbers, or one or more barbers
registered under this Act, or both, for said period,
or has lawfully practiced such trade or occupa-
tion for a period of three years within this State
or elsewhere, that he is possessed of the requi-
site skill in said trade to properly perform all the
duties thereof, including his ability in the prepara-
tion of tools, shaving, in hair cutting and in all
the duties and services incident thereto, and is
possessed of a sufficient knowledge concerning
diseases common to the face and skin, a certificate
of registration shall then Ibe issued, to him entitl-
ing him to practice the trade or occupation of a
barber in this State, subject to the terms and pro-
visions of this Act and any amendments thereto.
Should an applicant under this section fail to pass
such an examination, the said board shall furnish
to him a statement in writing, stating wherein said
applicant was deficient. Nothing in this Act shall
be construed to debar any applicant from making
repeated efforts to qualify under this section. Acts
1914, pp. 75, 78.
§ 1754(38). Appentices or learners required to
file affidavit and obtain certificate. — Nothing in
this Act shall prohibit any person from learning
said trade under a barber authorized to practice
under this Act, who is pursuing his vocation in a
barber shop or under an instructor in a "barber's
school or college, who, himself, has been a jour-
ney-man barber for a period of at least three years
and has registered under this Act. Every such
person desiring to so learn said trade, shall file
with the secretary of said board a statement in
writing, showing his name, the place of his em-
ployer or instructor, and shall pay to the treas-
urer of the board a fee of fifty cents, and said ap-
plicant shall receive a certificate of registration
showing the capacity in which he is permitted to
practice said trade. Acts 1914, pp. 75, 79.
§ 1754(39). Certificates to be displayed; re-
newal.— The holder of any certificate of registra-
tion issued under this Act shall display same in a
conspicuous place in front of his working chair
in his shop or place of business, and. upon his
failure or refusal to do so, his certificate or regis-
tration shall be revoked by said board. Certifi-
cates of registration issued under the provisions
of this Act shall be renewed on the first day of
January each year by the holder of same paying
to said board a renewal fee of one dollar. Acts
1914, pp. 75, 79.
§ 1754(40). Board to keep record and registry;
certified copie as evidence. — Said board shall keep
a record of all the proceedings, and shall keep a
register in which shall be entered the names of all
persons to whom certificates of registration are is-
sued, which register shall be open at all times for
public inspection. Said records and register shall
be prima facie evidence of all matters required to
be kept therein, and certified copies of same or
parts of same shall be primary evidence of their
contents, and all such copies, other documents
or certificates lawfully issued by said board shall,
when authenticated, under the seal of this board,
be admitted in any investigation to any court or
elsewhere without further proof. Acts 1914, pp.
75, 80.
As to the penalty for the violation of this act, see § 476
(2), P. C.
CHAPTER 14 B.
Board of Examiners of Architects.
§ 1754(41). Appointment; qualifications; terms;
vacancies. — Within thirty days after the passage
of this Act the Governor of this State shall ap-
point a State Board for the examination and
registration of architects, to be composed of five
architects who have been in active practice of
architecture in the State of Georgia for not less
than ten years previous to their appointment.
One of the said members of said Board shall be
appointed to hold office for a period of one year;
one to hold office for a period of two years;
one to hold office for a period of three years; one
for four and one for five years, and thereafter,
upon the expiration of the term of office of the
person so appointed, the Governor of this State
shall appoint a successor to each person whose
term of office shall expire, to hold office for five
years, and said person so appointed shall have
the above specified qualifications. In case a suc-
cessor is nol appointed at the expiration of the
term of any member, such member shall hold
office until his successor has been duly appointed
and has qualified. Any vacancy occurring in the
membership of said Board shall be filled by the
Governor of this State for the unexpired term of
such membership. Acts 1919, p. 125.
§ 1754(42). Oath of members. — The members
of said Board shall, before entering upon the
discharge of their duties, subscribe to and file with
the Secretary of State the constitutional oath of
officers. Acts 1919, pp. 125, 126.
§ 1754(43). President and Secretary. — The
Board for the Examination and Registration of
Architects shall meet for organization within
thirty days after its appointment, and shall elect
from its membership a President and a Secre-
tary. Acts 1919, pp. 125, 126.
§ 1754(44). Rules of Board; two meetings a
year, for examination. — The said Board shall
adopt all necessary rules, regulations and by-laws,
not inconsistent with this Act and the constitu-
tion and laws of this State and of the United
States, to govern its times and places of meeting
for organization and reorganization and the hold-
ing or examinations, the length of the terms of its
officers, and all other matters requisite to the ex-
ercise of its powers, the performance of its duties,
[ 387 ]
§ 1754(45)
BOARD OF EXAMINERS OF ARCHITECTS
§ 1754(58)
and the transaction of its business under the pro-
visions of this Act. At least two meetings shall be
held each year for the purpose of examination for
registration. Acts 1919, pp. 125, 126.
§ 1754(45). Quorum. — Three members of the
said Board shall constitute a quorum, but no ac-
tion at any meeting can he taken without at least
three votes in accord. Acts 1919, pp. 125, 126.
§ 1754(46). Record of proceedings. — The Sec-
retary of the said Board shall keep a true record
of all proceedings of the Board, and may employ
such clerical assistance as the Board may deem
necessary. Acts 1919, pp. 125, 126.
§ 1754(47). Expense of enforcing Act. — The said
Board shall be charged with the duty of enforcing
the provisions of this Act, and may incur such
expenses as shall he necessary, all of which ex-
penses shall be paid only out of the revenue aris-
ing from this Act in the manner hereinafter men-
tioned and provided. Acts 1919, pp. 125, 126.
§ 1754(48). Reports. — The said Board shall
file annually with the Secretary of State a full re-
port of its operations. Acts 1919, pp. 125, 127.
§ 1754(49). Fees collected, use of. — All fees
provided for by this Act shall be paid to and re-
ceipted for by the Treasurer of the State of Geor-
:gia, and shall not be used for any purpose other
than the purposes of this Act. The expenses of
the Board for Examination and Registration of
Architects, subject to the approval of the State
Treasurer, shall be paid Iby him upon written or-
der and warrant of the President and Secretary of
said Board. Acts 1919, pp. 125, 127.
§ 1754(50). Quarters in Capitol provided for. —
The Superintendent, or Custodian, of the State
Capitol Building in the City of Atlanta, Georgia,
shall provide, furnish and' equip suitable quarters
in said Capitol Building for the transaction of the
business of the said Board. Acts 1991, pp. 125,
127.
§ 1754(51). Per diem of members; salary of
Secretary.— Each member of the said Board shall
be entitled to Ten Dollars per diem while actually
engaged in attendance at meetings or in the con-
ducting examinations; in addition to the above-
mentioned sum, the Secretary of the Board is to
receive such salary as may be named by the Board
payable monthly and as provided for in Section
1754(49). Acts 1919, pp. 125, 127.
§ 1554(52). Members reimbursed for expenses,
etc. — The members of the said Board shall be
reimbursed the amount of actual expenses incur-
red in travel to and return from meetings, and for
expenditures for hotel bills, meals, stationery, post-
age, printing, typewriting, and the like necessary
expenses incurred in the performance of their du-
ties under this Act, subject to the approval of the
Treasurer of the State. Acts 1919, pp. 125, 127.
§ 1744(53). Architect's certificate, etc. — Any
person, wishing to practice architecture in this
State, who, before this Act goes into effect, shall
not have been engaged in the practice of architec-
ture in this State under the title of architect, shall
before being entitled to be, or known as, an archi-
tect, secure from the said Board a certificate of
qualifications to practice under the title of archi-
tect, as provided by this Act. Acts 1919, pp. 125,
128.
§ 1754(54). Use of title "architect."— No per-
son presumed to have the right to secure such
certificate, because of his or her use of the title
architect prior to the time this Act goes into ef-
fect, shall assume any title indicating that he or
she is an architect, or any words, letters or fig-
ures to indicate that the person using them is an
architect, unless he or she shall have qualified and
obtained a certificate of registration from said
Board. Acts 1919, pp. 125 128.
§ 1754(55). Employees of registered architects;
making plans, etc., for own building. — Nothing-
contained in this Act shall prevent the draftsmen,
students, clerks of work, superintendents, and
other employees of those lawfully practicing as
registered architects under the provisions of this
Act, from acting under the instructions, control
or supervision of their employers, or to prevent
the employment i of superintendents of the
construction, enlargement or alteration of build-
ings or any appurtenances thereto, or prevent
such superintendents from acting under the im-
mediate personal supervision of the registered ar-
chitect by whom the plans and specifications of
any such building, enlargement or alteration were
prepared. Nor shall anything contained in this
Act prevent persons, mechanics or builders from
making plans and specifications for, or supervis-
ing the erection, enlargement or alteration of
buildings or any appurtenances thereto to be con-
structed by themselves or their employees, pro-
vided that the working drawings for such con-
struction are signed Iby the authors thereof with
their true appellation, as "Engineer," or "Con-
tractor," or "Carpenter," or etc., without the use
in any form of the title "Architect." Acts 1919, pp.
125, 128.
§ 1754(56). Practice of architecture defined;
definition of "building." — Any one or a combina-
tion of the following practices shall constitute the
practice of architecture, namely: The planning or
supervision of the erection, enlargement or altera-
tion of any building or buildings, or of any appur-
tenances thereto, or consultation as to planning of
same, to be constructed for others or by persons
other than himself. A building is any structure
consisting of foundations, floors, walls, columns,
girders, beams, and roof, or a combination of any
number of these parts, with or without other parts
or appurtenance. Acts 1919, pp. 125, 128.
§ 1754(57). When certificate granted without
examination. — Any person residing in or having a
place of business in this State who shall have been
regularly engaged in the practice of architecture
in this State under the title of "Architect" at the
time this Act takes effect, may be granted a cer-
tificate of registration without examination, by the
payment to the said Board of the fee for certifi-
cate of registration as precribed in Section 1754-
(60), on condition that the applicant satisfies the
said Board for the Examination and- Registration
of Architecture [Architects] that he is qualified
to practice architecture. Acts 1919, pp. 125, 129.
§ 1754(58). Qualifications, age, citizenship and
character of applicants; examinations. — Any
citizen of the United States, or any person who
[ 388 ]
§ 1754(59)
BOARD OF EXAMINERS OF ARCHITECTS
§ 1754(64)
has declared his (or her) intention of becoming
such citizen, being at least twenty-one years of
age and of good moral character, may apply for a
certificate of registration, or for such examination
as shall ibe requisite for such certification under
this Act; but before receiving such certificate this
applicant shall submit satisfactory evidence of
having completed the course in a high school or
the equivalent thereof, and of having subsequently
thereto completed such course in mathematics,
history and language as may be approved or pre-
scribed by the said Board for the Examination
and Registration of Architects. The examination
for the above academic requirements shall be
held by the said Board. In lieu of such examina-
tion the said, Board may accept satisfactory diplo-
mas, or certificates, from institutions approved by
the said Board, covering the course or subject-
matter prescribed for examination.
Upon complying with the above requirements
the applicant shall satisfactorily pass an exami-
nation in such technical and professional subjects
as shall be prescribed by the said Board for the
Examination and Registration of Architects. The
said Board may, in lieu of the examination in such
technical and professional subjects, accept satis-
factory evidence of any one of the qualifications
set forth under sub-divisions (a) and (b) of this
Section.
(a) A diploma of graduation or satisfactory
certificate from an architectural college or school
that he, or she, has completed a technical course
approved by the American Institute of Architects,
together with and subsequent thereto of at least
three years satisfactory experience in the office
or offices of a reputable architect or architects.
(b) Registration or certification as an archi-
tect in another State or territory where the quali-
fications prescribed at the time of such registra-
tion or certification were equal to those prescribed
in this State at date of application.
The said Board may require applicants under
these subdivisions to furnish satisfactory evidence
of knowledge of professional practice. Acts 1919,
pp. 125, 129.
§ 1754(59). When only practical examination
required. — That an architect who has lawfully
practiced architecture for a period of more than
ten years outside of this State shall, except as
otherwise provided in sub-division (b) of Section
1754(58), ibe required to take only a practical ex-
amination, the nature of which shall be prescribed
by the said Board for the Examination and Reg-
istration of Architects. Acts 1919, pp. 125, 130.
§ 1754(60). Fees for examination and certifi-
cates.— The fee to be paid to the said. Board by an
applicant for an examination to determine his
fitness to receive a certificate of registration as a
registered architect shall be Ten ($10.00) Dollars.
The fee to be paid to the said Board by an appli-
cant for a certificate of registration as a registered
architect shall be Five ($5.00) Dollars. The fee
to be paid to the said Board for the restoration
of an expired certificate of registration shall be
Ten ($10.00) Dollars. The fee to be paid to the
said Board upon renewal of a certificate of regis-
tration shall be Two ($2.00) Dollars. The fee to
Ibe paid to the said Board by an applicant for a
certificate of registration, who is an architect reg-
istered or licensed under the laws of another
State or Territory of the United States, under sub-
division (b) of Section 1754(58), or under Sec-
tion 1754(59), shall be Twenty-five ($25.00) Dol-
lars. Acts 1919, pp. 125, 130.
§ 1754(61). Filing, etc., of examination papers;
record of architects; certificates to be recorded. —
The filing, recording and renewal of all examina-
tion papers and other evidences of qualification
submitted by each applicant shall be filed with the
said Board for the Examination and Registration
of Architects, and said Board shall keep a record,
open to public inspection at all reasonable times,
of its proceedings relating to the issuance, refu-
sal, renewal, suspension and revocation of certifi-
cate of registration. This record also shall con-
tain the name, known place of business and. resi-
dence, and the date and number of the certificate
of registration of every registered architect en-
titled to practice his profession in the State of
Georgia. Every person granted such certificate
shall have the same recorded with the Superior
Court Clerk of the county in which his principal
office for the practice of architecture is located.
Acts 1919, pp. 125, 131.
§ 1754(62). Renewal of certificate; fees. — Every
registered architect in this State who desires to
continue the practice of his profession shall, an-
nually during the month of July, renew his cer-
tificate of registration, and pay to the said Board
the renewal fee of Two ($2.00) Dollars, required
by Section 1754(60). A person who fails to
renew his certificate of registration during the
month of July in each year may not thereafter re-
new his certificate except upon payment' to said
Board of the fee of Ten ($10.00) Dollars, required
by Section 20 of this Act. Every renewal cer-
tificate shall expire on the thirtieth day of June,
following its issuance. Acts 1919, pp. 125, 131.
§ 1754(63). Revocation of certificate; grounds
for revocation. — The Board for the Examination
and Registration of Architects may revoke any
certificate after thirty days' notice, with grant of
hearing to the holder thereof, if proof satisfactory
to the said Board be presented in the following
cases;
(a) In case it is shown that the certificate was
obtained through fraud or misrepresentation.
(b) In case the holder of the certificate has
been found guilty by the said Board, or by a
court of justice, of any fraud or deceit in his pro-
fessional practice, or has been convicted of a
felony by a court of justice.
(c) In case the holder of the certificate has
been found guilty by the said Board of gross in-
competency or of recklessness in the planning or
construction of buildings.
(d) In case it is proved to the satisfaction of
the said Board that the holder of the certificate is
an habitual drunkard, or is habitually addicted to
the use of morphine, opium, cocaine, or other drug
having a similar effect. Acts 1919. pp. 125. 132.
§ 1754(64). Proceedings for revocation; service
of charges; hearing. — Proceedings for the annul-
ment of registration (i. e., the revocation of a
certificate) shall be begun by filing written
charges against the accused with the Board for
the Examination and Registration of Architects.
[ 389
§ 1754(65)
REGULATION OF NURSERYMEN, TREE SURGEONS
§ 1754(69)
A time and place for the hearing of the charges
shall be fixed by the said Board. Where personal
service or service through counsel can not be ef-
fected, service may be made by publication once
a week for four weeks in a newspaper published
in the county wherein the holder of said certifi-
cate is supposed to reside. At the hearing the ac-
cused shall have the right to be represented by
counsel, to introduce evidence, and to examine
and cross-examine witnesses. The said Board
shall make a written report of its findings, which
report shall be filed with the Secretary of State of
Georgia, and which shall be conclusive. Acts
1919, pp. 125, 132.
§ 1754(65). Registration of practicing archi-
tects.— Every person who is regularly engaged in
the practice of architecture in this State under the
title of Architect at the time this Act takes effect,
shall, within six (6) months after the going into
effect of this Act, record his name, with proof
of his use of such title, with the Board for the Ex-
amination and Registration of Architects, such
recording not to be interpreted as evidence of com-
petency or ability unless applicant applies for and
is granted a certificate of registration. Failure to
record within such period the prior use of such
title shall bar the said persons from thereafter
claiming registration under the provisions
of Section 1754(57). It is, however, provided that
all persons who were practicing architects within
this State within the meaning of said Act of Au-
gust 18, 1919, but who on said date were enlisted
in the military or naval service of the United
States and failed to register and to secure a certifi-
cate from the Board of Architects, may within
six months from the passage of this amendment
apply for and receive a certificate from said Board
to practice architecture provided the requirements
specified in Section 17 of said Act and other sec-
tions of said Act are complied with, and all per-
sons who prior to the passage of said Act were
engaged as an architect or draftsman in work for
any person, firm or corporation doing shipbuild-
ing or other war work for the United States in
any State during any portion of 1917 or 1918
and who prior to the passage of said Act had re-
ceived a certificate from a technological college
or school in Georgia certifying to or showing his
efficiency and had practiced architecture there-
under in this State, alone or in connection with
any person, firm or corporation, are hereby al-
lowed to register under said Act without an ex-
amination and shall immediately receive from said
Board a certificate of qualifications to practice
under the title of architect which shall be irrevoc-
able, and without evidence being required of
qualification or knowledge of professional prac-
tice, upon application and payment of the fee re-
quired by law within six months from the passage
of this amendment. Acts 1919, pp. 125, 132; 1921,
pp. 154, 155.
As to the penalty for the violation of this act. see § 476
(1), P. C
CHAPTER 14C.
Regulation of Nurserymen, Tree Surgeons, Land-
scape Architects, etc.
§ 1754(66). Dealers in nursery stock; license;
application; fee. — It shall be unlawful for any per-
son, firm or corporation to engage in, conduct or
carry on the business of selling, dealing in, or im-
porting into this State for sale or distribution, any
nursery stock, or to act as agent, salesman or solici-
tor for any nurseryman or deader in nursery stock,
or to solicit orders for the purchase of nursery
stock, without having first obtained from the Geor-
gia State Board of Entomology a license to do so,
and it shall be unlawful for any person to falsely
represent that he is the agent, saleman, or represent-
ative of any nurseryman or dealer in nursery stock.
No license shall be issued until the party applying
for the same has filed with his application for the
license the names and addresses of three reliable
parties as reference, (in case of a nurseryman he
shall give three nurserymen as references), and said
application has been approved by the State Board
of Entomology. A nurseryman shall state the ap-
proximate acreage of nursery stock grown by him,
and the kinds of nursery stock grown by him. The
annual license fee shall be $5.00 per annum for
nurserymen and dealers in nursery stock, and $1.00
for agents, salemen, and solicitors. All licenses shall
be in the name of the person, firm or corporation
licensed, and shall show the purpose for which
issued, the name and location of the nursery or place
of business of the nurseryman, or dealer licensed, or
represented by the agent, salesman or solicitor li-
censed, and no license shall be issued to any nurser-
yman, agent, salesman or dealer, unless the nurser-
yman, represented by him when residing in the
State, has 'had an official certificate of inspection
issued by the Georgia State Board of Entomology
as required in section 2130, and all non-resident
nurserymen, unless provided with an official cer-
tificate of inspection issued by the Georgia State
Board of Entomology, as required in section 2131.
All annual licenses shall bear the date of issue and
shall expire on the 31st day of July following the
date of issue. Acts 1922, pp. 136, 137.
As to the penalty for the violation of this act, see §§
476 (6), 476 (7) and 476 (8), P. C.
§ 1754(67). Horticulturists; certificates. — Any
person or persons contracting to render expert ad-
vice or service regarding horticultural practices,
including tree surgeons, landscape architects, and
landscape gardeners as a business or as a part of the
.value received in the sale of nursery stock, shall be
required to furnish satisfactory evidence to the
Georgia State Board of Entomology that he is
qualified and responsible to give such expert advice
or perform such service and shall be required to ob-
tain a certificate to that effect, under the signature
of the Georgia State Board of Entomology. A fee
of $5.00 per annum shall be required for this certi-
ficate. Acts 3 922, p. 138.
§ 1754(68). Revocation of licenses. — The Geor-
gia State Board of Entomology shall have the right
and power to revoke any license issued under this
Act, when it finds that the nurseryman, dealer, or
agent, tree surgeon, landscape gardner or landscape
architect is not properly representing his stock, or
is not faithfully carrying out the nursery rules and
regulations of the Georgia State Board of Entomo-
logy. Acts 1922, p. 138.
§ 1754(69). Invoice duplicates. — All nurserymen,
dealers, landscape gardeners, landscape architects,
[ 390]
§ 1754(70)
REGULATION OF NURSERYMEN, TREE SURGEONS
§ 1754(76)
or horticulturists shall be required to mail to the
Georgia State Board of Entomology, Atlanta, Ga.,
a duplicate of the complete invoice (without price)
of each sale amounting to over one hundred dollars,
within thirty days after date of shipment, with
name and address of salesman and name and ad-
dress of purchaser, name and quality of varieties of
all nursery stock sold in this State, or sold for de-
livery in this State. Acts 1922, p. 138.
§ 1754(70). Fraudulent acts; damages. — Any per-
son or persons who shall deceive or defraud any
person or persons in the sale of nursery stock by
substituting stock other than contracted for, or
different varieties or seedlings from those repre-
sented, or shall falsely represent the age, name or
class, or condition of any nursery stock, or shall
misrepresent by making any false statement or
promise for the purpose of making a sale of nur-
sery stock shall be liable to the party or parties
damaged or injured thereby for the original cost of
stock, expenses and loss of time, and for damages
sustained, the same to be recovered in any court
having jurisdiction thereof, but in no case shall the
total damage awarded exceed three times the origi-
nal cost of that portion of the stock not true to
contract. If no more than five per cent, of the
stock is untrue to contract, then no damages shall
be allowed by the court. Acts 1922, pp. 138, 139.
§ 1754(71). Suits against non-resident dealers, —
Any such suit may be maintained against any non-
resident dealer, nurseryman, corporation, firm or
individual in any county in this State in which the
contract for the sale of such nurses stock was
entered into, and that before the Board shall issue a
license to any non-resident nurseryman, corporation,
firm, or individual, dealer or agent to sell or deliver
such nursery stock, such non-resident dealer, nur-
seryman, corporation, firm or individual shall file
with said Board a written instrument or power of
attorney duly signed and sealed, appointing and
authorizing some person, who shall be a resident of
this State to acknowledge or receive service or pro-
cess, and upon whom process may be served, for
and in behalf of such dealer, nurseryman, corpora-
tion, firm, or individual, in all proceedings that may
be instituted against such dealer, nurseryman, cor-
poration, firm or individual in any court of this
State or any court of the United States in this
State and consenting that service of process upon
agent or attorney appointed under the provision of
this section shall be taken and held as valid as
served upon such dealer, nurseryman, corporation
or firm or individual. Acts 1922, pp. 138, 139.
§ 1754(72). Prosecution, when commenced. —
Prosecutions under this law must commence with-
in five years of shipment of nursery stock com-
plained of. Acts 1922, pp. 138, 140.
§ 1754(73). Copies of plat. — In order to bring
suit the purchaser must within 90 days from date of
shipment, file with the Georgia State Board of
Entomology, Atlanta, Ga., two copies of plat show-
ing the number of each variety, location and from
whom purchased, with statement of cost. Both of
said copies shall be executed before a notary public,
and certified under his notarial seal. One of said
copies shall be sent to the shipper by the said Stale
Board of Entomology. Acts 1922, pp. 138, 140.
§ 1754(74). Bonds of nurserymen. — Any nurser-
yman, corporation, firm or individual selling or of-
fering to sell any nursery stock within this State
shall, before the issuance of the license to sell, file
a bond with the Georgia State Board of Entomol-
ogy, payable to the secretary of said Board, in the
sum of $1,000.00 as required by said Board, condi-
tioned for the payment of any valid judgment that
may be recovered against such nurseryman, cor-
poration, firm or individual in any court of law in
the State having jurisdiction of the subject matter,
growing out of a breach by the vendor of any of the
terms and agreements of any sale of such nursery
stock, that said bond shall be maintained at the sum
so named by said Board; that said bond shall run
for a period of three years. Acts 1922, pp. 138, 140.
§ 1754(75). Effect of partial invalidity.— Should
any section or sections of this law be declared un-
constitutional, it shall not [a] effect the other
section or sections of this law. Acts 1922, pp.
138, 140.
§ 1754(76). Singular and plural interchangeable;
"person"; "nursery stock"; "nursery"; "nursery-
man"; "dealer"; and "agent" defined. — For the pur-
pose of this Act the following terms used in the Act
shall be construed as follows:
(a) The singular and plural forms of any word or
term in this Act shall be construed as interchange-
able and equivalent within meaning of this Act.
(b) The term "person" shall include corporations,
companies, societies, associations, partnerships, or
any individual or combinations of individuals. When
construing or enforcing the provisions of this Act,
omission or failure of any officer, agent, servant or
other individual acting for or employed by anjr per-
son as above defined within the scope of his em-
ployment or office, shall in every case be also
deemed to be the act, omission or failure of such
person, as well as that of the individual himself.
(c) The terms, "nursery stock" shall include all
field grown florist stock, fruit, nut, and ornamental
trees, shrubs, vines, cuttings, grafts, scions, buds,
fruit pits and other seeds of fruit and ornamental
trees, when used for planting purposes, and shrubs
and other plant products for propagation, except
field, vegetable and flower seeds.
(d) The 'term "nursery" shall be construed to
mean any grounds or premises on or in which nur-
sery stock is propagated and grown for sale, or any
grounds or premises on or in which nursery stock
is being fumigated, treated, packed, or stored.
(e) The term "nurseryman" shall mean the per-
son who owns, leases, manages, or is in charge of a
nursery.
(f) The term "dealer" shall be construed to apply
to any person not a grower of nursery stock who
buys nursery stock for the purpose of re-selling and
re-shipping, independent of any control of a nursery.
(g) The term "agent" shall be construed to apply
to any person selling nursery stock under the par-
tial or full control of a nurseryman or of a dealer or
other agent. This term shall also apply to any per-
son engaged with a nurseryman, dealer or agent in
handling nursery stock on a co-operative basis.
Acts 1922, pp. 138, 141.
[391]
§ 1754(77)
PROTECTION OF CEMETERIES
§ 1761
§ 1754(77). Money from licenses. — All money
derived from the sale of any licenses mentioned in
section 1754(66) and section 1751(69), and all fines
paid shall be turned into the State Treasury. Acts
1922, pp. 138, 142.
Editor's Note. — While the above section refers to § 1754
(69) it is thought that § 1754 (67) was meant.
CHAPTER 15.
Protection of Cemeteries. *
§ 1755. (§ 1511.) Board for distribution of bod-
ies.— Professors and demonstrators of anatomy, the
deans of medical and dental colleges now or here-
after incorporated under the laws of this State, are
a board for the distribution and delivery of dead
bodies, hereinafter described, to and among such
institutions as are entitled thereto. The board shall
have power to establish rules and regulations for
its government, and to appoint and remove its
officers; and shall keep minutes of its transactions,
and records shall be kept, under its direction, of all
bodies received and distributed, and of the persons
or institutions to whom the same may be distrib-
uted, which shall be open at all times to the inspec-
tion of members of said board, and of any solicitor-
general, or solicitor of any city or county court.
Acts 1887, p. 86. Penal Code §§ 407-410.
As to provisions in penal code relating to this and the
following sections, see P. C, §§ 407-410.
§ 1756. Delivery of certain bodies. — All public
officers of this State and their assistants, and all
officers and other deputies of every county, city,
town or other municipality, and of every prison,
chain-gang, morgue, public hospital, sanatorium or
sanitarium, in this state (except the Georgia State
Sanatorium, located at Milledgeville, Georgia, which
institution shall have authority to perform autop-
sies on the dead bodies of persons dying as
patients in said institution, all in the discretion of
the Superintendent and Medical Staff of said in-
stitution) having control over any dead human
body, not dead from contagious or infectious
disease, and required to be buried at public expense,
bodies with burial. Acts 1887, p. 86; 1918, p. 114;
1920, pp. 130, 131.
Editor's Note. — This section has been amended twice
since it appeared in the code of 1910. First by the act of
1918 (acts 1918, p. 114) which struck out "penitentiary com-
pany" from the section and added to the list of institu-
tions "sanitariums or sanatoriums." Second, by the act
of 1920 (acts 1920, p. 130) which excepted from the list of
institutions furnishing bodies that of the Georgia State
Sanatorium at Milledgeville and gave it the right to retain
such bodies and perform autopsies on them.
§ 1757. (§ 1513.) Travelers dying suddenly. —
Such notice shall not be given or such bodies be de-
livered if the deceased person was a traveler who
died suddenly, in which case said body shall be
buried. Acts 1887, p. 86.
§ 1758. (§ 1514.) How long retained.— Such body
shall in each and every instance be held and kept by
the person or persons having charge or control of it
or them at least twenty-four hours after death, be-
fore delivery to said board or its agent, during
which period notice of the death of such person
shall be posted at the court-house door of the
county in which said body or bodies are held. Acts
1887, p. 86.
§ 1759. (§ 1515.) Distribution. — Said board, or
its duly authorized agent, may take such bodies so
delivered, and shall, upon receiving them, distribute
them to and among the aforesaid schools or col-
leges, for lectures and demonstrations by said
schools or colleges — the number assigned to each
to be based upon the number of bona fide students
in each dissecting or operative surgery class, which
number of students shall be reported by the schools
or colleges to the board at such times as it may
direct: Provided, that said schools or colleges, upon
receiving them and before any use is made of them,
and without unnecessary mutilation or dissecting,
shall cause them to be properly emblamed and
carefully preserved and kept for a period of sixty
days from the day of their reception, and shall de-
liver them properly prepared for burial to any per-
son mentioned and described in section 1756, who
shall claim such body for burial within or before
the expiration of said period of sixty days, and
satisfy the officers of said school or college that he
are required to notify the Board of Distribution, or or she is such person as is under said section entitled
such person as may from time to time be designated
in writing by said board, or its duly authorized
officer, whenever any such bodies come into their
possession or control, and shall without fee or re-
ward, deliver such bodies and suffer the board and
its duly authorized agents who may comply with
the provisions of this chapter, to remove all
such bodies, to be used only within this State solely
for the advancement of medical science, provided
that no such notice shall be given, or shall any
body or bodies be delivered, if any person claiming
to tbe and satisfying the authorities in charge of said
body or bodies that he or she is of any degree of
kin, or is related by marriage to. or socially or other-
wise connected with and interested in the deceased,
shall claim that the said bodies or body for burial,
but it or they shall be at once surrendered to such
person for interment, or shall be buried at public
expense at request of such claimant if a relative by
blood or connection by marriage; provided he or
she is financially unable to supply such body or
to said body. If at the expiration of sixty days
said body or bodies have not been claimed for
burial, in the manner and by the persons herein de-
scribed, said bodies shall then be used for the pur-
poses specified by said schools or colleges: And
provided further, that when said bodies have been
so used and are no longer needed or serviceable for
the objects herein mentioned, they shall be de-
cently interred by the Said schools or colleges.
§ 1760. (§ 1516.) Carriage of bodies. — The said
board may employ a carrier or carriers for the con-
veyance of said bodies, which shall be well inclosed
in a suitable incasement and carefully deposited free
from public observation. Said carrier or carriers
shall obtain receipts by name, or, if the person
be unknown, by a description for each body de-
livered by him, and shall deposit said receipts with
the secretary of said board, who shall record, and
preserve the same.
§ 1761. (§ 1517.) Bond. — No school or college
392 ]
§ 1762
PLACEMENT OR ADOPTION OF CHILDREN
§ 1762(6)
shall be allowed or permitted to receive any such
body or bodies until a bond shall have been given to
the Governor of this State, and his successors in of-
fice, by or in behalf of such school or college by its
authorized officers, to be approved by the clerk of
the superior court of the county in which said
school or college may be situated, and be filed
in the office of said clerk, which bond shall 'be in
the sum of five thousand dollars, conditioned that
said body or bodies, which the said school or col-
lege shall receive thereafter, shall be used only in
the manner specified and solely for the promotion
of medical science in this State. Suits thereon
shall be in the name of the Governor, the recovery
to be a part of the State educational fund.
§ 1762. (§ 1518.) Expenses, how borne. — Neither
the State, County, municipality, nor officers there-
of shall [be] at any expense by reason of delivery
or distribution of bodies; ibut all expenses thereof
shall be borne by those receiving the body as pre-
scribed bv the board.
CHAPTER 15A.
Placement or Adoption of Children.
§ 1762(1). Children under sixteen; placement
licenses. — No person, agency, hospital, maternity
home or institution or official, public or private in
this State shall receive or accept a child under six-
teen years of age, for placement or adoption, or
place such a child either temporarily or perman-
ently in a home other than the home of the child's
relatives within the second degree, or solicit money
in behalf of such agency, unless it has received a
license from the Judge of Superior Court of the
circuit in which the person or agency has head-
quarters issued after the passage of this Act in
compliance with the provisions set forth herein.
Acts 1922 p. 72.
As to penalty for violation of this chapter, see § 702 (9),
P. C.
§ 1762(2). Conditions of receiving license. — No
such license shall be issued unless the person,
agency, hospital, institution or official is compet-
ent and equipped to comply with the provisions of
section 1762(4). Acts 1922 pp. 72, 73.
§ 1762(3). Application; public welfare board;
investigations. — Application for child placing li-
cense must be filed in duplicate with the Judge of the
Superior Court on forms furnished by the State
Board of Public Welfare, by all persons, agencies,
hospitals, maternity homes, institutions or public
or private officials now engaged in child placing on
or before January 1, 1923; and by others thereafter
who may desire to engage in child placing. It
shall be the duty of the Clerk of the Superior
Court to furnish a copy of each application for
child placing license to the Board of Public Wel-
fare within five days after such application is filed,
and no license shall be granted or denied until six
months after such copy has been thus transmitted.
It shall be the duty of the Clerk of the Superior
Court to furnish the State Board of Public Wel-
fare with a copy of each child placing license
granted by the Judge of the Court.
A period of six months time after application for
child placing license has been filed shall be allowed
by the Judge, during which time applicants may
place children under the provisions of this Act.
Only one six month period of time shall be granted
to an applicant.
For the purposes of sections 1762(2) 1762(3)
1762(4) and 1762(5) the State Board of Public
Welfare shall carefully ascertain the competency
and equipment of each applicant for a child placing
license and submit its findings to the Judge within
six months after the date of each applicant. Said
Board shall make similar inquiries into the child
placing work of licensed persons or agencies at
least once each year and report its findings to the
Superior Court. Acts 1922, pp. 72, 73.
§ 1762(4) Conditions of holding license. —
The holder of a license shall:
(a) Never place a child in a foster home or
boarding home without previously becoming care-
fully acquainted with (1) the conditions which
call for placement of the child, making diligent
effort to avoid separation from the parents, and
afterwards removing the child only when this ac-
tion is found necessary in order to prevent serious
detriment to the welfare of the child; (2) the
home in which the child is to be placed, taking
every proper precaution to place children only in
homes where they will receive proper care and
training; (b) inquire carefully into the care of the
child in its new home, at least once during the
first two months, twice during the first six months
and twice in every year thereafter unless the child
is legally adopted, or until the child reaches the
age of eighteen years; and remove any child
promptly from a home where it is mistreated or
neglected; (c) report immediately to the Board
of Public Welfare every child received by the
agency or institution, or born in the institution,
and every child placed, together with such infor-
mation regarding the child, its family, and the
foster home as the Board may require. Such re-
port to be filed within ten days of such receipt,
birth or placement. The Board of Pulblic Welfare
shall supply the Superior Court with forms for
issuing licenses and the child placing licenses with
record and report forms to be used as required in,
this section. Acts 1922, pp. 72, 73.
§ 1762(5). Revocation of license. — Proof of
failure to comply with the above regulations shall
be grounds for revocation of the license by the
Judge, upon ten days written notice to the licen-
see, and opportunity to answer charges at a for-
mal hearing. Upon the filing of a petition for
revocation of license, the Superior Court shall in
every instance proceed with notice and hearing
on the petition. Acts 1922, pp. 72, 74.
§ 1762(6). Improper placement. — That for the
purposes of section 1762(3), 1762(4) and 1762(5)
the Board of Public Welfare may ascertain by visit
of its agents or otherwise if necessary, the charac-
ter of any private home or private boarding home
in which children are placed or boarded, either
temporarily or permanently by any person or
agency. Whenever the Board shall find that a child
has been placed in an improper home the agency
placing the child shall be notified by the State Board
of Public Welfare and if the child is not removed
within a reasonable time, the Board shall institute
[ 393 ]
§ 1762(7)
EXPLOSIVES
§ 1762(15)
proceedings before the proper court for its re-
moval and placement in a proper home. Acts
1922 pp. 72, 74.
§ 1762(7). Offers to dispose of unborn children,
etc. — No person as an inducement to a woman to
go to any maternity hospital or home during con-
finement, shall in any way offer to dispose of any
child or advertise that he will give children for
adoption or hold himself out as being able to dis-
pose of children in any manner or permit any
child to be left or abandoned in such maternity
home, hospital or private home by its mother or
any other person unless such hospital or home is
duly licensed to place children under this Act.
Acts 1922 pp. '72, 75.
§ 1762(8). Legal adoption.-— No child placed by
an agency under this Act shall be legally adopted
into its foster home until he has lived six months
in said foster home, nor thereafter without writ-
ten permission of the person or agency respon-
sible for the placement. Acts 1922 pp. 72 75.
§ 1762(9). Children brought into State for
placement; bond, notification, reports. — No per-
son shall bring or send into the State any
child for the purpose of placing him out or pro-
curing his adoption, without first filing notice
with the State Board of Public Welfare. He
shall file with the Board a bond to the State for
each child, approved by the Board, in the penal
sum of one thousand dollars, conditioned that he
will not send or bring into the State any child
who is incorrigible or unsound of mind or body;
that he will remove any such child who becomes
a public charge or who, in the opinion of the
Board of Public Welfare, becomes a menace to
the community prior to his adoption or becom-
ing of legal age; that the person with whom the
child is placed shall be responsible for his proper
care and training. Before any child shall be brought
or sent into the State for the purpose of placing
him in a foster home, the person so bringing or
sending such child shall first notify the State
Board of Public Welfare, of his intention, and
shall obtain from the Board a certificate stating
that such home is, in the opinion of the Board, a
suitable home for the child. Such notification
shall state the name, age and personal description
of the child, and the name and address of the per-
son with whom the child is to be placed, and such
other information as may be required by the
Board. The person bringing or sending the child
into the State shall report at least once each year,
and such other times as the Board of Public Wel-
fare shall direct, as to the location and well-being
of the child so long as he shall remain within the
State and until he shall have reached the age oi
eighteen or shall have been legally adopted.
Acts 1922 pp. 72, 75.
§ 1762(10). Disclosure of investigated facts. —
No officer or authorized agent of the State Board
of Public Welfare, or any of its agents, or a holdei
of a child placing license, or any other person,
shall directly or indirectly disclose the contents
of the records herein provided for, or the parti-
culars entered therein, of facts learned about such
homes, or the inmates thereof, except upon in-
quiry before a court of law, at a coroner's inquest
or before some other tribunal, or for information
of the State Board of Public Welfare. Provided,
however, that nothing herein shall prohibit the
holder of the license or the Board of Public Wel-
fare disclosing such facts to such proper persons
as may be in the interest of any child. Acts 1922,
pp. 72, 76.
§ 1762(11). Orders and proceedings. ~ The
Judge shall direct the Clerk to enter all orders
and proceedings under this Acts on the minutes
of the Superior Court and the Clerk shall be
paid such fees as Clerks are allowed for similar
services to 'be paid out of the appropriation for
the Department of Public Welfare upon the cer-
tificate of the Judge. Acts 1922 pp. 72, 76.
§ 1762(12). Disqualification of judges. — If for
any reason the Judge of the circuit is disquali-
fied the duties imposed by this Act may be dis-
charged by any qualified Judge of the Superior
Court who shall order the proceedings entered on
the minutes of the Superior Court of the proper
county. Acts 1922 pp. 72, 77. '
§ 1762(13). Effect of Partial invalidity.— If any
section, clause or sentence of this Act is declared
invalid the remainder of the Act shall be valid,
notwithstanding. Acts 1922, pp. 72, 77.
CHAPTER 15B.
Explosives.
§ 1762(14). Registration by owners of explo-
sives.—It shall be unlawful for any person, asso-
ciation of persons, co-partnerships or corporations
to have, own, possess or control within the State
of Georgia, any dynamite, nitro-glycerine, gun
cotton, or any other high explosive of any name
whatsoever, without first having registered his
their or its name with the Ordinary of the County
where such person, association of persons, co-
partnership or corporation resides, or does busi-
ness, in a book to be kept by said Ordinary to be
known as the Explosive Register, wherein each
and every such person, association of persons,
co-partnership or corporation shall register their
name, date of registration, place of residence, the
amount and name of any such explosive they
may have on hand at the time of such registration,
from whom purchased, when and where pur-
chased, and the purposes for which purchased,
stating where same is kept or stored at the date of
such registration, and shall at the same time ob-
tain from said Ordinary a license authorizing
such person, association of persons, co-partner-
ship or corporation, as the case may be, to own,
possess and control same for a period of ninety
days from the date of such registration in the
county only where same is so registered. Acts
1921, pp. 247, 248.
§ 1762(15). Registration before purchase. —
Before any person, association of persons, co-
partnership or corporation shall be permitted to
buy, or in any other manner obtain or procure any
of the explosives mentioned in Section 1762(14),
they shall first register with the Ordinary, as
provided in Section 1762(14), and shall enter on
such register the name of the person, firm or cor-
poration from whom they intend purchasing the
said explosive, together with the [njsame of the
[394]
§ 1762(16)
REGULATION OF BILLIARD ROOMS
§ 1762(22)
place or places where such person, firm or cor-
poration resides, or does business, the name and
amount of such explosive intended to be pur-
chased, the use for which same is to be purchased,
the place or places where same is to be kept or
stored, and shall at the same time procure from
the Ordinary a license authorizing such person,
association of persons, co-partnership or corpora-
tion to own and possess in said county where
such registration is made, the amount of any such
explosive for which application is made to said
Ordinary. Acts 1921, pp. 247, 248.
§ 1762(16). Records of dealers. — Every dealer
in any of the explosives mentioned in this Act
shall keep a record of every sale of any of such
explosives in which the name and amount of any
such explosive shall be entered, together with the
name of the purchaser, the date of every such
purchase, and the use for which each purchaser
at the time of such purchase stated same was to
be used. Acts 1921, pp. 247, 249.
§ 1762(17). Sale only to licensed purchasers. —
No dealer shall sell any of the explosives men-
tioned in this Act until such purchaser shall first
produce and exhibit a license from the Ordi-
nary of the County of the purchaser's residence
authorizing such purchase. Acts 1921, pp. 247,
249.
§ 1762(18). Dealers' registers open to inspec-
tion.—Every such dealer's register required by
this Act to be kept shall at all times during busi-
ness hours be open to inspection at all times by
any State, County or Municipal Officer, and. every
such dealer is hereby required to exhibit said reg-
ister for inspection and examination when re-
quested so to do by any person interested, or by
any State, County or Municipal Officer of this
State. Acts 1921, pp 247, 249.
§ 1762(19). Ordinary's explosive register. —
Each Ordinary of Georgia shall purchase,
at the expense of the County, a substantially
bound book to be known as the Explosive Regis-
ter, in which all purchases [purchasers] of any of
the explosives mentioned in this Act shall reg-
ister, as required and specified in this Act, and
shall at the time of registering pay to the Ordin-
ary twenty-five cents for such registration and
license, which license shall be in form substan-
tially as follows, to wit:
Georgia, County.
This is to certify that has registered
as required by law, and is hereby authorized to
buy, own, possess, and. use pounds of
Name of explosive to be entered here
, in said
County for and during a period of ninety days
from this date
Date of license entered here.
Signed
Ordinary County, Ga.
Acts 1921, pp. 247, 249.
CHAPTER 15C.
Regulation of Billiard Rooms.
§ 1762(20). "Billiards" defined. — The term
billiards, as used in this Act, shall mean any of the
several games played on a table surrounded by an
elastic ledge of cushions, with balls which are im-
pelled by a cue, and shall include all forms of the
game known as Carom Billiards, Pock | Pocket]
Billiards (formerly called Pool), and English
Billiards. The term Billiard Room shall mean
any public place where the game of billiards is
permitted to be played and for which a charge is
made for use of equipment. Acts 1925, p. 286.
§ 1762(21). Licenses. — Authority is hereby
vested in the Tax Collectors of the State to license
the operation of Billiard rooms in the various
Counties, and in the governing bodies of incorpo-
rated cities and towns, to license and regulate by
ordinance, the operation of Billiard Rooms within
the corporate limits of such incorporated citie>
and towns. Acts 1925, p. 286.
§ 1762(22). Who may secure license; applica-
tion; bend; issue; surrender and forfeiture of
license. — No license to operate a Billiard Room
shall be issued to any person, who is not twenty-
one (21) A^ears of age and a citizen of the United
States; or, who has been convicted of a felony; or
to any person of the White or Caucasian race to
operate a Billiard Room to be used by, frequented
or patronized by persons of the Negro race; or to
any person of the Negro race to operate a Billiard
Room to be used by, frequented or patronized by
persons of the White or Caucasian race. Applica-
tion for license to operate a Billiard Room shall be
first made to the Tax Collector of the County in
which the applicant proposes to conduct said busi-
ness in the form hereinafter provided, and no
license shall be issued by any city or town to any
person to engage in such business until after such
person has made application to and has- been
granted a license by the Tax Collector of the
County in which such city or town is located.
Every application for license shall be accom-
panied by the affidavit of the applicant, sworn to
before an officer authorized by law to administer
oaths, stating that the applicant is a citizen of the
United States; that he' has not been convicted of
a felony: and that, if a White person, he will not
permit Negroes to congregate or play in his place
of business; and, if a Negro, he will not permit any
White person to remain or play in his place of
business; that he will not permit vagrants, or per-
sons under the influence of intoxicating liquors, to
enter or play in his place; that the applicant will
have personal charge and management of said
business; that he will not permit gambling, or the
above described tables to be used in any manner
other than as provided by law.
There shall also be filed wTith the application a
bond in the penal sum of $500.00, payable to the
State of Georgia, and conditioned upon the faithful
performance of all provisions of this Act, signed
by the applicant as principal, and either a surety
company or two individuals as securities, which
bond must be approved by the Tax Collector and
filed in his office.
When said application and bond have been filed
and approved as aforesaid, the Tax Collector shall
issue license for the current year, or unexpired
portion thereof, upon the payment of the license
fees provided by law.
Provided further, that if any licensee hereunder
[ 395 ]
§ 1762(23)
REGULATION OF BILLIARD ROOMS
§ 1762(34)
shall voluntarily relinquish personal supervision,
management and control of such Billiard Room, he
shall surrender his license to the Tax Collector
who may issue a new license to some other per-
son, firm or corporation to continue said business,
under the provisions of this Act, in which event
credit shall be given for the unused portion of said
surrendered license. But if any licensee shall
transfer or sub-lease such place of business to, any-
one, or relinquish management and control of said
business without surrendering his license to the
Tax Collector for reissuance, said license shall be
deemed to be forfeited, and the Tax Collector must
notify the Sheriff of the County who shall close
said place of business. Acts 1925, p. 286.
See § 406 (2), P. C.
§ 1762(23). Application to city clerk. — Before
any person, firm or corporation shall be authorized
to conduct a Billiard Room in any City or Town
in the State of Georgia, it shall be necessary, in ad-
dition to comply with the foregoing provisions of
this Act, to make application to the City Clerk of
such City or Town for a license, and said applica-
tion shall certify that application has been made,
and a license granted to such applicant by the Tax
Collector of the County. Acts 1925, pp. 286, 288.
§ 1762(24). Municipal fees and regulations. —
The governing bodies of incorporated cities and
towns where Billiard Rooms are operated, may fix
a license fee, for the operation of such Billiard
Rooms and shall make such additional regulations,
governing their operation as they may deem
proper, provided that no city or town shall have
power to license or authorize the doing of any act
or thing prohibited by this Act. Acts 1925, pp.
286, 288.
§ 1762(25). Hours prohibited.— It shall be un-
lawful for any person, firm or corporation to
operate a Billiard Room between the hours of
twelve o'clock, midnight, and six o'clock, a. m„
or to permit any person to remain in such Billiard
Room between said prohibited hours, except reg-
ular emplo3rees performing necessary labor with-
in the premises. It shall be unlawful for any
Billiard Room to operate billiard tables on Sunday.
Acts 1925, pp. 286, 288.
§ 1762(26). Minors not admitted.— It shall be
unlawful for any person to play Billiards, or to be
permitted to remain in a Billiard Room for any
purpose, who has not reached the age of twenty-
one (21) years, unless accompanied by a parent or
guardian, or with the written permit from parent
or guardian witnessed by a Notary Public with
seal. In the event that the proprietor of a Billiard
Room is of the opinion that any person desiring
admission thereto is under the age of twenty-one
years, he shall require such person to certify his
age in writing, or produce a legal permit. Acts
1925, pp. 286, 289.
As to penalty for violation of this section, see § 406 (3),
P. C.
§ 1762(27). Gambling prohibited; posting of
sporting results; intoxicating liquors. — No dice,
cards, dominoes or other games of chance shall be
permitted or any form of gambling allowed in any
Billiard Room, or in any other business place
operated in connection therewith, and it is ex-
pressly provided that such games as are now
known as Kelly Pool, Keno; Pigeon Pool, Parker
Pool, Star Pool, Scrub and similar gambling de-
vices are prohibited. No racing or other betting
pool shall be exhibited, or sold in such place of
business. The use of Baseball Tickers and the
posting of results of sporting events is expressly
prohibited in billiard rooms or in any place operated
in connection therewith. No intoxicating liquors
shall be sold, served, or allowed to be used, in or
on the premises. Acts 1925, pp. 286, 289.
§ 1762(28). Sanitation. — All public Billiard
Rooms shall be kept in a clean sanitary condition,
and shall comply with all sanitary rules, and regu-
lations of the Health Department of the State,
County and City. Acts 1925, pp. 286, 289.
§ 1762(29). Partitions and screens prohibited. —
No Billiard Room shall permit any screens, cur-
tains, blinds, partitions, or other obstructions to be
used to prevent a clear view of the interior, which
clear view must be maintained at all times. No
partitions forming rooms, stalls or other enclo-
sures shall be permitted. This provision, however,
shall not be construed to prohibit the maintenance
of wash rooms and toilet rooms for proper pur-
poses, nor the maintenance of closets for storing
purposes exclusively. Acts 1925, pp. 286, 289.
§ 1762(30). Connections with gambling houses;
use of word "pool".— It shall be unlawful for any
Billiard Room to maintain connections with any
place where gambling is conducted, or where per-
sons congregate for liquor drinking, or for immoral
purposes. It shall be unlawful for any licensee to
display or use the word "pool" in or on any win-
dow, sign, building, stationery or advertising
matter used in connection with such place of busi-
ness. Acts 1925, pp. 286, 290.
§ 1762(31). Posting provision of law. — Every
licensee shall post up in his room, where said
tables are operated, a placard having § 1762(26) of
this code conspicuously written, for the informa-
tion of his patrons. Acts 1925, pp.. 286, 290.
§ 1762(32). Inspection by police. — It shall be
the duty of the Sheriff, Police or other constituted
authorities to inspect all public Billiard Rooms in
the County for the purpose of ascertaining whether
or not the provisions of this Act are being ob-
served, and it shall be his or their duty to report
all violations promptly to the Solicitor General of
his circuit, and furnish him with such information
and assistance as is necessary for the prosecution
of such violations. Acts 1925, pp. 286, 290.
§ 1762(33). Club billiard rooms not affected.—
The provisions of this Act shall not be construed
to include Billiard Tables, or Billiard Rooms
operated by private Industrial Concerns, Young
Men's Christain Associations, Religious Orders,
Charitable Institutions, State, County or City
Institutions, Fraternal Orders, or bona fide clubs
using such tables for members or employees only.
Acts 1925, pp. 286, 290.
§ 1762(34). City ordinances not interf erred with.
— This Act shall not ibe construed as authorizing the
issuance of billiard room license by City Officials or
[ 396 ]
\
§ 1762(35)
REGULATION OF JEWELRY AUCTIONS
§ 1762(40)
Tax Collectors for the operation of public Billiard
Rooms in any City or Town in this State where
the operation of a public Billiard Room is now
prohibited by local Ordinance. Acts 1925, pp. 286,
291.
§ 1762(35). Effect of partial invalidity.— If any
section, clause, provision or portion of this Act
shall be held to be invalid or unconstitutional by
any court of competent jurisdiction, such holding
shall not affect any other section or clause of this
Act. Acts 1925, pp. 286, 291.
As to penalty for violation of this and the preceding
sections, see § 406 (2), P. C.
CHAPf ER 15D.
Regulation of Jewelry Auctions.
§ 1762(36). Application of section; time of sales.
— Except as hereinafter provided, it shall be unlaw-
ful for any person, firm or corporation to sell, dis-
pose of or offer for sale in the State of Georgia, at
public auction, or cause or permit to be sold, dis-
posed of or offered for sale at auction in the State
of Georgia, any diamonds, or any other precious
and semi-precious stones or imitations thereof,
watches, clocks, jewelry, gold, silver or plated
ware, china, glassware or leather goods, whether
the same shall be their own property or whether
they sell the same as agent or employees of others,
provided, however, that this section shall not apply
to judicial sale or sales by any executor, admin-
istrator, nor the sale by holder of personal security
under a contract allowing public sale in default of
payment of debt, nor to the sale at public auction
of the stock on hand of any person, firm or corpora-
tion that shall for the period of two years next
preceding the sale have been continuously in busi-
ness in the same city, town or community in the
State of Georgia, as a retail or wholesale merchant
dealing in the articles above mentioned; and pro-
vided further that where such auction sales as are
allowed under this Act shall be held by such
merchant, such sales shall be held continuously
from day to day, and shall not continue longer than
thirty days, Sundays and legal holidays excepted;
nor shall the same dealer, either by himself or an-
other, conduct another auction sale in connection
with such business for a period of twelve months
from the last date of a former sale. Acts 1925, p.
310.
§ 1762(37). License; inventory. — Before any
auction sale of the articles hereinbefore stated
shall be held, such dealer shall first obtain from
Commissioner of Labor of this State a license per-
mitting such a sale, which license shall state the
dates and the place at which the sale shall be held,
and shall displa}' such license in a conspicuous
place of sale during the entire period covered by
it. Such dealer shall also, before commencing such
sale, file with the ordinary of the county in which
the sale is to be had, a full and true inventory of all
the articles to be sold thereat, and opposite each
article listed therein to be sold, shall be plainly
written or printed the correct purchase price of
such article, and shall attach to such list an affi-
davit made by the party desiring to hold such sale,
or if a firm or corporation, by a member of such
firm or an agent of such corporation, that said list
contains a true statement of all the articles to be
sold, and the purchase price of each such article:
and such sworn inventory shall be filed by said
ordinary and kept open for sixty days, subject to
the inspection of any one desiring to inspect same.
At the auction held pursuant to such filing, no
other article shall be sold except those included in
such sworn inventory, nor during the continuance
of such auction sale shall any additional goods,
wares or merchandise of the same or similar
nature to those being sold, be received upon the
premises wherein the articles being sold are kept,
nor where such sale is being held, until such sale
is completed and the time for such sale, under the
license obtained, has expired. Acts 1925, pp. 310,
311.
§ 1762(38). Bond. — Upon securing such license
and before commencing such auction sale covered
thereby, the licensee shall make and file with the
ordinary of the county in which such sale is to be
had, a bond in the sum of one thousand ($1,000.00)
dollars in some good and solvent surety company
doing business in this State, or other good and
sufficient bond subject to the approval of the Ordi-
nary of the county wherein the sale is to be had,
said bond conditioned upon the carrying on of said
sale in accordance with the terms of this Act. Upon
the violation of any of the terms of this Act ii
the carrying on of such auction sale, any person,
firm, or corporation injured by such violation, may
sue and recover upon such bond in the name of the
Governor of this State, for the use of such person,
firm, or corporation, and for the amount of the in-
jury or loss sustained by reason of such violation
to the amount of such bond. In case of the viola-
tion of this Act, where the injury to any person,
firm, or corporation is less than the amount of said
bond, a recovery shall be had for the full amount
of the bond, and a sufficiency of said amount, as
determined by the verdict of the jury, shall be ap-
plied to the payment of loss sustained by such per-
son, firm, or corporation, and the balance shall go
to the common school fund of this State. Upon
the rendition of a verdict for the plaintiff under
this Act, the license under which the sale was had
shall become ipso facto null and void. AcJ^T925,
pp. 310, 312.
§ 1762(39). List of sales submitted daily. - - By
ten o'clock of each morning during the continuance
of any auction sale under this Act, the person, firm,
or corporation holding same shall file with the ordi-
nary of such county, a complete list of articles sold
at such sale on the day previous, showing the true
price received for such (each) article sold, and to
such record of sales shall be attached the affidavit
that the same is a true and correct statement of all
the sales of such previous day. Such daih' reports,
under oath, must also be filed by said ordinary and
kept open for the inspection of the public as are all
public records in such office. Acts 1925, pp. 310,
313.
§ 1762(40). "By-bidders," etc.— It shall be un-
lawful for any person, firm, or corporation con-
ducting such auction to employ or use at such sale
any "by-bidders," "capper," or "booster," nor shall
any person act as "by-bidder," "capper," Or
[ 397 ]
§ 1762(41)
MOTOR VEHICLE LAWS— ACT OF 1910
§ 1770(1)
"booster," nor shall the auctioneer at such sale ac-
cept, nor pretend to accept, any false, misleading or
fictitious bids for any article offered for sale, but
every sale must be bona-fide and for cash. The
auctioneer at such sale shall recognize no bidder
for any article exposed for sale, unless such bidder,
in bidding, shall extend his arm above his head so
as to be plainly seen and identified as such bidder
by those present, and each article sold shall be
immediately and publicly delivered to such suc-
cessful bidder therefor, and' the amount of the bid
then and there publicly paid for such article by the
purchaser. Acts 1925, pp. 310, 313.
§ 1762(41). Descriptive Tags.— Each article ex-
posed for sale at such auction shall have attached
to it a tag, upon which shall be plainly written or
printed in English a true statement of its character
and quality; if a diamond, the exact weight and
the quality of the stone; if any other precious stone,
its true weight and description; if the article be of
metal, whether pure and of what degree of fine-
ness; and if plated, the nature of the plating and
the true nature of the metal covered by said plat-
ing; if the article offered for sale be an imitation of
a precious stone, gold or silver article, the tag must
plainly show that fact; if apparently of leather,
whether real or imitation leather; the purposes of
the above provisions being that each purchaser at
such sale shall have full and correct information of
the nature and quality of the article being sold.
Tags giving this information shall remain firmly
attached to such article sold and be delivered with
it to the purchaser, and the facts stated upon such
tag shall constitute a warranty that the article so
sold is what it is thereupon represented to be and
not otherwise. When watches or clocks are so
sold, such attached tags shall show the true name
of manufacturer of such watch or clock, and no
parts or movements, mechanism of other watches
or clocks, shall be secretly substituted for those
originally forming such watch or clock, nor shall
any false or misleading names or trademarks be
used or substituted in connection with such
watches, clocks, or the works thereof, nor shall
any second-hand works be enclosed in any new
watch case or clock case and sold or offered for sale
as new, but all such substitutions shall be shown
upon such tag, and such fact plainly stated by the
auctioneer in offering such article for sale. If any
second-hand goods or articles covered by this Act
shall be offered for sale at this auction, such fact
shall appear upon said tag attached to the article,
and also be stated by the auctioneer conducting
such sale. Acts 1925, pp. 310, 313.
§ 1762(42). False representations; warranties. —
If at any auction sales held under this Act any per-
son, firm, corporation or their agents conducting
the sale, shall falsely represent that the articles be-
ing offered constitute any bankrupt stock, or fire
salvage stock, or other stock sold under peculiar
circumstances making such sale necessary or de-
sirable, or should they make any false or mislead-
ing statement touching the history or condition of
such articles to be sold, all such statements made
by such person, firm, corporation, or by their
agents at such sale, shall be held and deemed to be
warranties and binding upon parties conducting
such sales as such. Acts 1925, pp. 310, 314.
CHAPTER 16.
Substitutes for Intoxicants.
ARTICLE 1.
Substitutes for Intoxicants.
§§ 1763-1770. Expressly repealed by Acts 1915,
Ex. Sess., p. 76.
CHAPTER 17.
Motor Vehicle Laws.
ARTICLE 1.
Acts 1910 and Amendatory Acts.
§ 1770(1). Motor Vehicles, use of regulated. —
It shall be unlawful for any person or persons, ex-
cept in accordance with the provisions of this Act,
to run, drive, or operate any automobile, locomo-
bile, or other vehicle or conveyance of like charac-
ter, propelled by steam, gas, gasoline, electricity,
or any power other than muscular power, and
which said vehicle shall hereafter be called ma-
chines in this Act, upon or along any public road,
street, alley, highway, avenue, turnpike, or any
private road or way generally used by the public
of this State, except and until such person or per-
sons shall comply with the provisions of this Act.
Acts 1910, p. 90.
Editor's Note. — In 1910 the legislature passed this -act
regulating the use of automobiles upon the public high-
ways, and providing for the licensing of same. In 1913 it
was amended. In 1915 the governor called a special ses-
sion of the legislature to consider the amendment of the
automobile license tax law, among other things not con-
cerning automobiles. The act passed is set out under
Article 2 of this chapter beginning with § 1770 (21) through
§ 1770 (48), passing law regulating not only the taxation
of. automobiles but also the use and operation of them. In
a series of cases beginning with Jones v. State, 151 Ga.
502, 107 S. E. 765, the Supreme Court held different parts
of the Act of 1915 dealing with the use and operation of
automobiles invalid because not related to the object for
which the special session was called notwithstanding that
the act was approved by the governor. , It is to be pre-
sumed that all such portions of the act are unconstitutional.
Wherever this act was held unconstitutional, the corres-
ponding section of the Act of 1910 was held not repealed
and therefore effective.
In 1921 the legislature passed a law [found in this Code
beginning with § 1770 (50)] regulating the use and opera-
tion of automobiles. This act does not expressly repeal
the Act of 1910, but with regard to such subject mattet
passes new or similar regulations so that with regard to
the use and operation of automobiles, the Act of 1910 is
probably superseded.
Inasmuch as many parts of the two acts are identical and
most parts are similar, the cases under the old act are set
out in the annotations thereto. And references are made
from the old act to the new and vice versa.
The Act of 1915 and amendatory acts dealing with
the licensing of automobiles have not been held invalid.
Insofar as they dealt with the same subject matter as the
Act of 1910, and amendatory act. they supersede it, but
there are several sections of the Act of 1910, and the
amendatory act not covered by the Act of 1915 and amenda-
tory acts. However every part of the act of 1910 and
amendatory act is now superseded in the manner explains ;l
under each section.
Due to the uncertainty of the state of the law on this
subject, it is deemed advisable to set out all the acts on
the subject and the amendments thereto. If any of the
superseding acts should be held unconstitutional the old act
would be in force.
There has been placed under each section an Editor's
Note pointing out the probable value of the given section
[ 398 ]
§ 1770(2)
MOTOR VEHICLE LAWS— ACT OF 1910
§ 1770(5)
at the present time together with references to portions ot
the other acts having direct bearing upon it.
For the latest law regulating the licensing of motor ve
hides, providing for certificates of title reference should be
had to the act of 1925 codified as § 1770 (60^)-
The penalty for the violation of this act [sec. 1770 (1)-
(20)] will be found under § 528 (2) of the Penal Code.
Automobile Defined. — See § 1770 (22) for a definition un-
der the act of 1915. The term "automobile" has a definite
popular significance and is understood to refer to a
wheeled vehicle, propelled by gasoline, steam, or electric-
ity, and used for the transportation of persons or mer-
chandise. Carter v. State, 12 Ga. App. 430, 78 S. E. 205.
"The words, 'propelled by steam, gas, gasoline, electric-
ity, or any other power than muscular,' refer to the
phrase 'any other vehicle,' and not to the word 'automo-
bile.' " Carter v. State, 12 Ga. App. 430, 436, 78 S. E. 205.
This act includes a motorcycle propelled by gasoline.
Bonds v. State, 16 Ga. App. 401, 85 S. E. 629.
Local Act Repealed. — The local act of 1904, regulating
the running of automobiles in Monroe county (Acts 1904,
p. 276), was repealed by this act. Jones v. Stokes, 145
Ga. 745, 89 S. E. 1078.
§ 1770(2). Registration of automobiles; regis-
tration fee; registration book kept by Secretary
of State. — Every person now owning or hereafter
acquiring any such machine shall, for every ma-
chine owned by him, file in the office of the Sec-
retary of State, a statement of his name and
address with a brief description of the machine to
'be registered including the name of the maker,
factory number, style of machine and motor
power on a blank to be prepared and furnished
for that purpose, and he shall at the same time
pay to the Secretary of State the sum of five dol-
lars ($5.00) per annum for each machine regis-
tered, which said registration fee shall be paid on
or before March 1st of each year, hereafter. The
Secretary of State shall thereupon file such state-
ment in his office, register such machine in a book
or index to be kept for that purpose and, assign it
a distinctive number, showing the year for which
said registration fee is paid and shall forthwith,
on such registration, issue and deliver to the
owner of such machine a seal of aluminum or
other suitable metal, circular in form and ap-
proximately two inches in diameter, having
stamped thereon "Registered Motor Vehicle No.
, Ga., Motor Vehicle Law, Year "
with the registration number inserted therein and
the year of issue inserted therein, which seal shall
at all times be conspicuously displayed on said
machine. Acts 1910, p. 91; 1913, p. 75.
Editor's Note.— See the Editor's Note under § 1770 (1).
The Act of the special session of 1915 regulating the li-
cense taxes of automobiles is valid. Insofar as it covered
the same subject matter as this act, it superseded it.
Reference should be had to §§ 1770 (24), (25), (26), (27) and
notes thereto for provisions of that act similar to this
section.
The legislature of 1925 passed an act for the registration
of the titles of motor vehicles herein codified as § 1770
(60^). It requires certain information regarding title to
be given- the commissioner of motor vehicles. It is probable
that after such information is given and a certificate of
title obtained a license would be issued upon it without
further information.
§ 1770(3). Number plate. — The Secretary of
State shall also furnish to each owner in addition
to the circular seal mentioned in section 2 a num-
ber plate bearing the ' same number and year of
the seal together with the letters "Ga." and of the
same material as the seal, the number to be in
Arabic numerals not less than three inches in
height and each stroke not less than one-half
inch in width, the date of the year for which said
registration number is issued to be conspicuously
displayed upon said number plate, which shall at
all times be displayed on the rear of the machine
in such manner as to be plainly visible. Acts
1910, pp. 90, 91; 1913, pp. 75, 70.
Editor's Note. — This section was probably superseded by
the Act of 1915. See §§ 1770 (26), (27), (28), for corres-
ponding provisions. Reference should be had to the
Editor's Note under § 1770 (1).
§ 1770(4). Front and rear lights. — From one
hour after sunset to one hour before sunrise, there
shall be displayed on the front of every machine,
while being operated or driven along or upon any
of the highways named in this Act, at least one
white light, throwing a bright light at least one
hundred feet in the direction in which the machine
is going, and shall also exhibit on the rear of each
machine at least one red light, which shall ef-
fectually illuminate the number tag on the rear.
Acts 1910, pp. 90, 91.
Editor's Note. — For the corresponding provision of the
Act of 1915, see § 1770 (29). This act and the Act of 1915 are
probably superseded by the Act of 1921, § 1770 (50) of this
code.
See the Editor's Note under § 1770 (1).
Violation Negligence Per Se. — In view of the provisions
of this act it is negligence per se to operate an automobile
along one of the public highways of this State from one
hour after sunset to one hour before sunrise without carry-
ing a proper light. Sheppard v. Johnson, 11 Ga. App. 280,
75 S. E. 348.
§ 1770(5). Speed. — No person shall operate a
machine on any of the highways of this State as
described in this Act at a rate of speed greater
than is reasonable and proper, having regard to
the traffic and use of such highway, or so as to en-
danger the life or limb of any person or the safety
of any property, and upon approaching a bridge,
dam, high embankment, sharp curve, descent or
crossing of intersecting highways and railroad
crossings, the person operating a machine shall
have it under control and operate it at a speed
not greater than six miles per hour. Acts 1910,
pp. 90, 92.
Editor's Note. — The corresponding section (§ 10) of the
Act of 1915 [§ 1770 (30) -(33) of this code] was held un-
constitutional in Jones v. State, 151 Ga. 502, 107 S. E-
765. [See Editor's Note under § 1770 (1)]. This portion ot
the Act was held not repealed by that Act. A part of
this section as the note below will show, was held un-
constitutional so that between 1915 and 1921 (the time of
the last act), there was no law regulating speed except
the six mile provision above and the common law.
The speed limit is now regulated by § 1770 (51) and this
section is probably superseded by it. As pointed out in
the Editor's note under that section, the act of 1925 [§§
2677 (7), (15)] now regulates the crossing of railroads.
Strict Construction. — -The statute being penal, a strict
construction is required. Central, etc., R. Co. v. L,?rsen,
19 Ga. App. 413, 420, 91 S. E. 517.
Persons Protected. — This section is sufficiently clear and
definite in its terms as to the persons and property pro-
tected and does not provide that the only persons intended
to be protected are pedestrians. Holland v. State, 11 Ga.
App. 769, 771, 76 S. E. 104.
The purpose of the act regulating the use of automobiles
is to protect pedestrians and others lawfully on the high-
ways of this State against the consequences of the negligent
and improper operation of automobiles. Elsbery v. State,
12 Ga. App. 86, 90, 76 S. E. 779.
Validity — As to Criminal Action. — So much of this act as
undertakes to make penal the operation of an automobile
on one of the highways of this State at a rate of speed
greater than is reasonable and proper having regard to
the traffic and use of such highway, or so as to endanger
the life or limb of any person or the safety of any prop-
erty, is too uncertain and indefinite in its terms to be
capable of enforcement. Hayes v. State, 11 Ga. App. 371,
75 S. E. 523. Holland v. State, 11 Ga. App. 769. 770, 76 S.
E. 104. Carter v. State, 12 Ga. App. 430, 78 S. E. 205. This
[399 ]
§ 1770(5)
MOTOR VEHICLE LAWS— ACT OF 1910
§ 1770(6)
case gives excellent criteria for determining when a law is
indefinite. Ed. Note.
But so much of this act as makes it a misdemeanor to
operate an automobile at a rate of speed greater than six
miles per hour upon approaching a crossing of intersecting
highways is sufficiently definite and certain in its terms to
be capable of enforcement. Hayes v. State, 11 Ga. App. 371,
75 S. E- 523; Empire Life Ins. Co. v. Allen, 141 Ga. 413,
415, 81 S. E. 120.
So the construction of the word "descent," as given be-
low in this note, does not make it so indefinite and uncer-
tain in meaning as to render this provision of the act
incapable of enforcement as a penal law. See Elsbery v.
State, 12 Ga. App. 86, 76 S. E- 779.
Same — As to Civil Action. — The act may not be effective
as a rule in criminal cases, but it is sound as a rule of
civil conduct. Quarles v. Gem Plumbing Co., 18 Ga. App.
592, 595, 90 S. E. 92. Indeed, in most respects it is not
greatly different from the rule of ordinary care which would
apply in the absence of a statute. Strickland v. Whatley
142 Ga. 802, 83 S. E. 856.
"Descent" Defined — Rate of Speed. — Construing the
word "descent," as used in this section in the light of its
context and the declared purpose of the act, it will be held
to mean a declivity in the highway over which, from ordi-
nary human experience and observation, it would be deemed
more dangerous to operate an automobile at an excessive
rate of speed than upon level ground. Elsbery v. State,
12 Ga. App. 86, 76 S. E. 779.
"What the General Assembly evidently had in mind was
such an incline on the highway as is commonly denomi
nated a hill; that is, a descent of such degree as that
ordinarily prudent persons, in approaching it in an auto-
mobile would check the speed of the machine." Elsbery
v. State, 12 Ga. App. 86, 90, 76 S. E. 779.
The statute does not in fact require that a speed of
six miles per hour shall be maintained while the machine
is making the descent of a hill or incline; and this con-
struction is- based upon good reason; the object of the
statute, in this respect, being to require the traveler, on
approaching the crest of a hill, and before commencing the
descent, to slow down his car in order to ascertain whether
some other person, whom he could not theretofore discern,
might be using the highway on its machine. If this re-
quirement of the law be complied with, there is nothing
therein that makes it necessary to maintain such a re-
duced speed down the incline, in the absence of some
special cause therefor. Central, etc., R. Co. v. Earsen, 19
Ga. App. 413, 420, 91 S. E. 517.
The only fair test, which can be applied in determining
whether a crime has been committed, would be to submit
to the jury in each case the question whether or not the
operation of the machine upon the particular descent in
question would likely be more dangerous to human life or
limb or the safety of property than if the machine were
being operated upon ordinary level ground. Elsbery v.
State, 12 Ga. App. 86, 90, 76 S. E. 779.
Railroad Crossings. — A new act regulating the crossing
of railroads was passed by the legislature in 1925 which
likely repeals and supersedes this act with respect thereto.
See §§ 2677 (.7) -2677 (15).
In approaching a railroad crossing the distance from the
tracks at which a driver must reduce his speed to six miles
is a jury question to be determined upon the facts. The
court refused to hold that as a matter of law it should
have been reduced at a greater distance than eighty-nine
feet under the particular facts because the facts showed
that eighty-nine feet was not sufficient distance to bring
the car to a stop. It disregards the doctrines of proxi-
mate cause and contributory negligence. Central R. Co. v.
Earsen, 19 Ga. App. 413, 422, 91 S. E. 517.
It would have been error under this section for the judge
to say in charge that ordinary care in crossing a railroad
should have included the additional element of ability to stop
the automobile instantly. Davis v. Whitcomb, 30 Ga. App.
497, 118 S. E. 488. Elberton, etc., R. Co. v. Thornton, 32
Ga. App. 259, 122 S. E. 795.
For proper charge under evidence on speed approaching
crossing, see Elberton, etc., R. Co. v. Thornton, 32 Ga.
App. 259, 260, 122 S. E. 795.
That an automobile approaches a railroad on an unlaw-
ful rate of speed will not necessarily preclude recovery for
negligent operation of train. Payne v. Wells, 28 Ga. App.
30, 109 S. E- 926.
"It was not the legislative scheme that the operator of
a machine owed a statutory duty to the railroad com-
pany to keep the machine under control and not to
cause it to run more than six miles an hour so as to pre-
vent running into a hole or down a declivity, if the com-
pany should negligently leave one on its right of way, but
not immediately on the crossing of the tracks, by failing
to comply with its statutory duty as to keeping the pub ■
lie-road crossing in repair." Western, etc., R. Co. v.
Smith, 145 Ga. 276, 280, 88 S. E. 983.
What Constitutes an Intersection. — A street or high-
way which extends to, but not beyond, another highway,
crosses and intersects such highway, within the meaning oi
this section. Hayes v. State, 11 Ga. App. 371, 75 S. E. 523.
Necessity of Intersection Being Public Highway. —
"Every thoroughfare which is used by the public and is
common to all the public, and which the public has the
right to use, is a highway." Southern R. Co. v. Combs,
124 Ga. 1004, 53 S. E. 508. Hines v. Wilson, 25 Ga. App.
63, 102 S. E. 646.
The "crossing of intersecting highways" within the
meaning of the act of 1910, is an intersection or meeting of
public thoroughfares as distinguished from private ways.
Eaing v. Perryman, 31 Ga. App. 239, 120 S. E. 646.
Where the petition and proof fail to show that the in-
tersecting highway is public the court does not err in
failing to give in charge the language or substance of the
latter portion of the section. Eaing v. Perryman, 31 Ga.
App. 239, 120 S. E. 646.
Speed Approaching Bridge — Proximate Cause. — The act
requires merely that a person "upon approaching a bridge"
shall have his machine "under control and operate it at a
speed not greater than six miles an hour." Whether or
not the approach of the bridge in violation of the statute
could be the proximate cause of an accident 92 feet away,
the petition failed to show in what respect it was. Eaing
v. Perryman, 31 Ga. App. 239, 120 S. E- 646.
When Violation Negligence Per Se. — See note under §
1770 (11) as to violation of city ordinance.
It is negligence to run the machine at a greater rate of
speed than six miles per hour as provided in this section
and without giving the warning which the law requires.
Fuller v. Inman, 10 Ga. App. 680, 695, 74 S. E. 287.
The charge of the court "So, if this chauffeur was driv-
ing the automobile, as it approached N. street, at a greater
rate of speed than six miles an hour, that would, by vir-
tue of the law itself, constitute negligence," is a correct
statement of the law. Ware v. Lamar, 16 Ga. App. 560,
565, 566, 85 S. E. 824. Ware v. Eamar, 18 Ga. App. 673, '90
S. E- 364.
It is also negligence per se to operate without proper
lights [see note under § 1770 (4)]. Ed. Note.
The effect of such negligence per , se is a jury question
and the court properly omits instruction regarding same
from charge. Davis v. Whitcomb, 30 Ga. App. 497, 118 S-
E. 488.
Degree of Care Owed by Driver. — See note under §
1770 (11).
These statutory duties are cumulative, and do not de-
stroy the common-law duties of drivers of automobiles rel-
'atively to persons and property using the highway. The
duty at common law of a driver of an automobile, relatively
to persons and property on the highway, is to exercise
ordinary care to avoid injuring them. What will amount
to ordinary care will depend upon the circumstances of
the case. Giles v. Voiles, 144 Ga. 853, 88 S. E. 207.
Then it was erroneous to charge broadly: "The degree
of diligence which must be exercised in a particular
exigency is such as is necessary to prevent injuring
others." Giles v. Voiles, 144 Ga. 853, 88 S. E. 207.
It is for the jury to determine, from the evidence, in
any case of a collision between an automobile and a
pedestrian, whether it was the duty of the driver to have
stopped the automobile, whether he endeavored to do so,
and whether the failure to stop in the particular case was
due to negligence. O'Dowd v. Newnham, 13 Ga. App. 220,
80 S. E. 36.
§ 1770(6). Signals, — Upon approaching a pe-
destrian in a roadway or highway as described in
this Act, or a horse or horses or other draft ani-
mals being ridden or driven thereon the person
operating the machine shall give reasonable
warning of its approach by the use of a bell,
horn, gong, or other signal and use every reason-
able precaution to insure the safety of such per-
son or animal, and in the case of horses or other
draft animals, to prevent frightening the same.
Acts 1910, pp. 90, 92.
Editor's Note.— Sec. 1770 (35), the part of the Act of 1915
corresponding to this section, was probably unconstitu-
tional, and this section was the valid law of the state.
[ 400 ]
§ 1770(7)
MOTOR VEHICLE LAWS— ACT OF 1910
§ 1770(10)
[See Editor's Note under § 1770 (1)] until the Act of 1921,
which very likely superseded it [see § 1770 (53) for the
corresponding provision of that act; see also § 177Q (50)].
Relative Rights of Pedestrian and Driver.— A pedestrian
and a person with an automobile have each the right to
use the public highway, but the right of an operator of an
automobile upon the highway is not superior to the right
of the pedestrian, and it is the duty of each to exercise his
right with due regard to the corresponding rights of the
other. O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36.
Driver — Degree of Diligence. — See notes under § 1770
(5).
This act imposes certain duties upon drivers, with refer-
ence to persons and property using the highway in the
ordinary course of travel. These are cumulative, and do
not destroy the common-law duties of drivers of automo-
biles relatively to persons and property using the high-
way. The duty at common law of a driver of an automo-
bile, relatively to persons and property on the highway,
is to exercise ordinary care to avoid injuring them. What
will amount to ordinary care will depend upon the circum-
stances of the case. Giles v. Voiles, 144 Ga. 853, 88 S. E-
207.
In O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36,
the court apparently held that the degree of care required
of a driver is that care "necessary to prevent injury." In
Giles v. Voiles, 144 Ga. 853, 857, 88 S. E. 207, exception was
made to a charge of the lower court in the language of
the above holding.
In discussing the charge the court said, "It will be ob-
served, however, that the question there under considera-
tion was not upon a charge of the court; and when the
note referred to it read in connection with the other notes
in the case, it is manifest that it was not intended by the
Court of Appeals to state that the driver of an automobile
was bound to so high a degree of diligence as the lan-
guage of the note implied."
For acts constituting negligence on the part of a driver
so as to exclude contributory negligence, see O'Dowd v.
Newnham, 13 Ga. App. 220, 80 S. E. 36.
Same — Crowded Streets. — The operation of an automobile
upon the crowded streets of a city necessitates exceeding
carefulness on the part of the driver. Thoughtless inat-
tention on his part is the essence of negligence. O'Dowd
v. Newnham, 13 Ga. App. 220, 80 S. E. 36.
Same — Necessity of Giving Signal Jury Question. —
Whether the use of a gong, a horn, or other warning to
pedestrians, is necessary in the exercise of due diligence
by the driver of an automobile, and whether the failure of
the driver to give these or other cautionary signals is
negligence, are jury questions, dependent for solution upon
the peculiar facts of the particular case; and for this rea-
son the judge in this case did not err in refusing to charge
the jury that "there is no law requiring the operator of an
automobile, while properly using the streets, to sound a
gong, a horn, or give other warning to pedestrians of its
approach." O'Dowd v. Newnham, 13 Ga. App. 220, 80 S.
E. 36.
Pedestrian — Degree of Diligence. — A pedestrian who, in
using a public highway, is in the exercise of due care for
his own protection and for the safety of others can not,
as a matter of law, be held to be guilty of contributory
negligence merely because he does not run to escape injury
by an automobile. O'Dowd v. Newnham, 13 Ga. App. 220,
80 S. E. 36.
The driver of an automobile is bound to use reasonable
care and to anticipate the presence on the streets of other
persons having equal rights with himself to be there; and
a pedestrian, when lawfully using the public highways, is
not bound to be continually looking, listening to ascertain
if auto-cars are approaching, under the penalty that if he
fails to do so and is injured, it must be conclusively pre-
sumed that he was negligent. O'Dowd v. Newnham, 13
Ga. App. 220, 80 S. E. 36.
Charge of § 1770 (5) Not Sufficient to Omit This Section.
— In a charge of § 1770 (5) there is no reference to the
provisions of this section with regard to signals on ap-
proaching draft animals. There being a conflict in the
evidence upon the alleged ground of negligence that no
signal was given, and as to whether the defendant could
have seen the plaintiff before striking him on the public
highway, the failure to instruct the jury as to the provi-
sion of the statute quoted was error requiring a reversal.
Eaing v. Perryman, 31 Ga. App. 239, 120 S. E. 646.
§ 1770(7). Precautions in meeting or passing
horses. — A person operating a machine shall, at
request or on signal by putting up the hand or
other sign of distress of a person riding, leading
or driving a restive horse or other animal, bring
such machine immediately to a stop, and if travel-
ing in the opposite direction remain stationary so
long as may be reasonable to allow such horse or
animal to pass, and if traveling in the same di-
rection, use reasonable caution in passing such
horse or animal, and, in case such horse or ani-
mal appears frightened or the person operating
such machine is requested to do so, such person
shall cause the motor of the machine to cease
running so long as shall be reasonably necessary
to insure the safety of others. Acts 1910, pp.
90, 92.
See notes under preceding section.
Editor's Note. — Sec. 1770 (32), the corresponding portion
of the Act of 1915, was likely unconstitutional [see Edi-
tor's Note under § 1770(1)], and this section was the law
until the Act of 1921, which superseded it. Sec. 1770 (51)
is the corresponding portion of that act.
§ 1770(8). Machines sold to be renumbered. —
Should the owner of a machine sell or otherwise
dispose of it after having registered the machine
as provided by Section 1770(2), it shall be the
duty of the' purchaser to procure a new seal and
number in accordance with the provisions of this
Act, and there shall be one number given to each
machine. Acts 1910, pp. 90, 93.
Editor's Note. — This section was likely superseded by
§ 1770 (27), a similar provision of the Act of 1915. The
legislature of 1925 enacted a title registration law provid-
ing also for the transfer of titles. This act will be found
under § 1770 (60 J4).
§ 1770(9). Persons intoxicated or under 16
years old prohibited from operating. — It shall be
unlawful for any person who is intoxicated or
under the age of sixteen years at the time, unless
such minor shall have previously had twelve
months' experience in the operation of automo-
biles and is accompanied by the owner of the ma-
chine at the time, to propel or operate a machine
on any of the highways described in this Act, of
this State. No person shall operate an automo-
bile without the consent and by authority of the
owner, and any person so doing shall be guilty of
a misdemeanor and punishable therefor. Acts
1910, pp. 90, 93.
Editor's Note. — The case from which the following note
was taken held § 1770 (39), the corresponding provision of
the Act of 1915, unconstitutional. It likewise declared that
this section is the valid law on the subject, as the note be
low indicates.
But this section is likeb' superseded by the Act of 1921, §
1770 (56) of this code.
See the Editor's Note under § 1770 (1).
Indictment Valid Under Section. — The indictment may
stand upon this section making it a misdemeanor for one
to operate an automobile over the public streets or roads
while intoxicated, which act was not repealed by the similai
unconstitutional provision of § 15 of the act of 1915 [§ 1770
(39)]. Jones v. State, 151 Ga. 502, 107 S. E. 765. See to
the same effect. McDonald v. State, 152 Ga. 223, 109 S.
E. 656.
§ 1770(10). Liability for damages. — Nothing
in this Act shall be construed to curtail or abridge
the right of any person to prosecute a civil action
for damages by reason of injuries to person or
property resulting from the negligent use of the
highways described in this Act by a machine or
its owner or his employee or agent. Acts 1910,
pp. 90. 93.
Editor's Note. — This section is now superseded by the
Act of 1921, § 1770 (58). There was a similar provision
in the Act of 1915 but it was very likely unconstitutional
[401]
§ 1770(11)
MOTOR VEHICLE LAWS— ACT OF 1910
§ 1770(15)
for reasons stated in the Editor's Note under § 1770 (1)
of this code.
Effect Upon Civil Actions.— This section preserves any
right of action for damages, but does not declare a new
right. Fielder v. Davison, 139 Ga. 509, 512, 77 S. E. 618.
§ 1770(11). Rights to highways.— Every owner
or operator of a machine shall have equal rights
upon the public highways of this State with all
other users of such highways, and no person or
persons shall throw glass, nails, tacks or other ob-
struction upon the public highways used and
traversed by automobiles or unreasonably ob-
struct or impede the right of travel of such owner
or operator while operating propelling or driving-
such machine, and no person or persons shall
give any signal or sign of distress or danger, or
call for assistance upon a person lawfully operat-
ing any such machine on any of the public high-
ways of this State maliciously and without rea-
sonable cause for so doing. Acts 1910, pp. 90, 94.
Editor's Note.— This section is superseded by the Act of
1921, § 1770 (60) of this Code. A corresponding section of
the Act of 1915, § 1770 (48), was probably unconstitutional
for the reasons assigned in the Editor's Note under § 1770
(1).
See annotations under § 1770 (6).
§ 1770(12). Municipal regulation — Nothing
contained in this Act shall be construed as
changing or interfering with any regulation or
ordinance which has heretofore or hereafter may
be adopted by any municipality of this State regu-
lating the running and operation of the machines
described in this Act, provided such regulation or
ordinance is not in conflict with the provisions of
this Act and provided, further, that any munici-
pality of this State shall have the right to pass
ordinances requiring every person, firm or corpo-
ration residing in such municipality for a period
as long as thirty days, and owning or operating
any of the machines or vehicles mentioned in this
Act, to register the State license number with the
Clerk of Council of said municipality or such
other municipal officer as said municipality may
direct, together with a brief description of said
machine or vehicle, and to provide a penalty in
such ordinances for failure to comply therewith.
Acts 1910, pp. 90, 94; 1913, pp. 75, 78.
Editor's Note. — This section is superseded by § 1770 (57)
of this code, the Acts of 1921. There was a similar pro-
vision in the Act of 1915, § 1770 (41) of this code, but it was
very likely unconstitutional for reasons stated in the Edi-
tor's Note under § 1770 (1).
When Ordinance Excludes State Law.— "If the purpose is
that the ordinance shall exclude the operation of the stat-
ute, it must cover the same matter, must make punishable
the same conduct, and must not omit punishment for con-
duct punishable under the statute. It is not to be supposed
that the State would abdicate its right to deal with the
speed of automobiles in populous communities, where fhe
dangers from the operation of such machines are far
greater than elsewhere, if the municipal regulations should
in any respect fall short of the State law on the subject."
Carter v. State, 12 Ga. App. 430, 435, 78 S. E. 205.
Ordinance Inaugurating New Regulations. — "A city ordi-
nance regulating the operation of automobiles may contain
other regulations, not inconsistent with the laws of the
State, and dealing with circumstances which are not in-
cluded within it, but it must accord with the provisions of
§ 5, [§ 1770 (5) above set forth]." Carter v. State, 12 Ga.
App. 430, 434, 78 S. E. 205.
Speed Limit Greater Than Allowed by State. — This sec-
tion does not render the act inoperative in a city or town
which has adopted an ordinance attempting to make
punishable the running of automobiles in certain manner
"at a rate of speed greater than ten miles per hour at
corners and crossings, within the limits of the municipality;"
the ordinance being void because in conflict with section
1770 (5) part of the same act, which makes it a misde-
meanor to operate an automobile at a rate of speed greater
than six miles per hour on approaching a crossing of in-
tersecting highways. (See § 1770 (51), the present state
speed law). Carter v. State, 12 Ga. App. 430, 78 S. E.
205.
Definition of Prohibited Act. — A city ordinance which
undertakes to make punishable the operation of an auto-
mobile upon one of the streets of the city "in a careless or
reckless manner" is null and void, because it fails to
sufficiently define the prohibited act. Hayes v. State, 11
Ga. App. 371, 75 S. E. 523.
Violation of Ordinance Negligence Per Se. — See note un-
der § 1770 (5) for negligence generally.
The operation of an automobile at a rate of speed in ex-
cess of that prescribed by a valid municipal ordinance is
negligence per se. The driver must so operate his auto-
mobile as to have its speed at all times under his control;
and whenever it is necessary, for the preservation of either
person or property, that the automobile should be brought
to a stop, the exercise of reasonable care requires that the
vehicle be stopped instantly. O'Dowd v. Newnham, 13 Ga.
App. 220, 80 S. E. 36.
§ 1770(13). Non-residents. — The provisions of
this Act requiring registration with the Secretary
of State shall not apply to motor vehicles owned
and operated by non-residents of this State, pro-
vided the owners thereof have complied with any
law requiring the registration of owners of motor
vehicles in force in the State, territory or Federal
district of their residence and the registration
number showing the initial of such State, territory
or Federal district shall be displayed on such ve-
hicle substantially as in this Act provided; pro-
vided, that a stay of thirty days in this State by
any person herein described shall make such per-
son liable to the fee as fixed in section 1770(2).
Acts 1910, pp. 90, 94.
Editor's Note — This section is probably superseded- by
the Act of 1915, § 1770 (40), which has not been held un-
constitutional.
§ 1770(14). Disposition of registration fees. —
Of the five dollars to be paid for the certificate a
sufficient amount thereof shall be used in provid-
ing these certificates, and the remainder thereof
shall be paid into the State Treasury. The funds
raised under this Act shall be known as a State
Road Fund and the same shall be apportioned
among the several counties of the State by the
Secretary of State in proportion to the number of
miles of rural route roads in the several counties.
Acts 1910, pp. 90, 95; 1913, pp. 75, 77; 1914, p. 152.
Editor's Note. — This section is very likely superseded by
the Acts of 1915 as amended by the Act of 1919, § 1770 (43)
of this Code (see § 2, Act of 1919, p. 258), and the state
aid road fund act as explained in the Editor's Note to
§ 1770 (43$*).
§ 1770(15). Apportionment of tax by mileage;
ascertained by actual measurement. — The net
amount of automobile tax collected for the year
1914 under the Act approved August 19, 1913, and
printed on pages 75 to 78 of the Acts of that year,
shall be apportioned among the counties of Geor-
gia in the following manner: On or by Septem-
ber 1, 1914, the county commissioners, and the
ordinaries where there are no comriiissioners,
shall report to the Secretary of State the exact
number of miles of rural route road or roads
traveled by rural route postal carriers in their re-
spective counties. The said officials shall have the
rural route mileage ascertained b}T actual meas-
urements, and their reports submitted to the Secre-
tary of State shall specify each route by name or
by number. In ascertaining the number of rural
route miles, no road shall be counted more than
[ 402 ]
§ 1770(16)
MOTOR VEHICLE LAWS— ACT OF 1915
§ 1770(23)
once; that is, where two or more routes go for
any distance over the same road, it shall not foe
counted but once in the report. Acts 1914, p. 152.
Editor's Note. — This section is superseded by the laws
-as explained in the Editor's Note under § 1770 (43 Yz).
§ 1770(16). Report by Secretary of State; treas-
urer to pay shares to counties. — By the 15th day
of October, 1914, or as soon thereafter as possible
the Secretary shall file a report with the Treas-
urer of State showing the number of miles
of rural route roads in each county and the total
number of miles in the entire State. He shall
also apportion the money collected under the au-
tomobile tax among the special counties in the
proportion that the rural route miles of each
county bears to the total number in the State, and
it shall be the duty of the Treasurer of State to
transmit the share of said automobile tax to the
proper authorities in each count}' upon the war-
rant of the Governor. Acts 1914, pp. 152, 153.
Editor's Note. — This section is superseded by the laws
as explained in the Editor's Note under § 1770 (43 Y-i).
§ 1770(17). Warrant on report of Secretary of
State. — It shall be the duty of Secretary of State
to submit a copy of the report to the Governor
of State, who shall immediately draw his warrant
against the State treasury for the amount of
money belonging to each county, so that it may
he transmitted, 'to the same. Acts 1914, p. 152.
Editor's Note. — This section is superseded by the laws as
explained in the Editor's Note under § 1770 (43 J-4).
§ 1770(18). Reports by county officers; annual
apportionment. — After the year 1914 it shall be
the duty of the county officials, as hereinbefore
described, to submit annually their report to the
Secretary of State on or by the 1st day of April
of each year, and he, the Secretary of State, shall
immediately transmit his report to the Governor
and State Treasurer, as hereinbefore provided,
and they, the Governor and Treasurer, shall as
soon as possible, transmit to each county its just
proportion of automobile tax. Acts 1914, p. 152.
Editor's Note. — This section is superseded by the laws
.as explained by the Editor's Note under § 1770 (43 Y2).
§ 1770(19). No funds to county misrepresent-
ing.— If the Secretary of State should obtain proof
in any way that any county has made a misrepre-
sentation of facts for the purpose of securing an
unjust proportion of automobile tax, it shall be
his duty to withhold any funds from that county
in that particular year. Acts 1914, p. 152.
Editor's Note. — This section is superseded as explained
In the editor's note under § 1770 (43 J^).
§ 1770(20). Returns for taxation, or loss of
fund by county. — It shall be the duty of the
county commissioners, or the ordinary, as the
case may ibe, to see as far as they can that all per-
sons owning automobiles in their counties return
the same for taxation, and they shall so report to
the Secretary of State. If it should be proved to
the Secretary of State that as many as ten per
cent, of the automobiles in any county are not re-
turned for taxation, that county shall receive no
part of the automobile tax fund for that year.
Acts 1914, pp. 152, 154.
Editor's Note — This section is superseded by the laws as
explained in the Editor's Note under § 1770 (43 J/2). See
-also § 1770 (44) and note.
ARTICLE 2.
Acts 1915, Ex. Sess., and Amendatory Acts.
§ 1770(21). Secretary of State as Commis-
sioner.— The Secretary of State shall be ex-ofricio
Commissioner of Motor-Vehicles of this State,
and shall be charged with the execution herein-
after enumerated. Acts 1915, Ex. Sess. pp. 107,
108.
Editor's Note. — A part of this act is unconstitutional.
It was passed by a special legislature called only for the
purpose of changing the motor vehicle license law among
other things not here material. Therefore the part of the
act dealing with the regulation of the use of automobiles
is unconstitutional. [See the editor's note under § 1770 (1)|
The penalty for the violation of this act [§ 1770 (21)-
1770 (48)] will be found in the Penal Code, § 528 (3).
§ 1770(22). Motor vehicles defined; "horse
power" and "ton weight." — The term "motor
vehicles" shall apply to all vehicles propelled
by power other, than muscular power, except
fire apparatus, passenger-carrying vehicles owned
and used by counties for transporting chil-
dren to and from schools, and motor vehicles
owned by counties and State, and used in the con-
struction of highways; road rollers, traction en-
gines and railroad and railway cars, and motor
cars running only upon stationary rails or tracks.
The terms "horse power" and "ton weight" shall
in this Act apply to and be governed by the rat-
ings of the National Automobile Chamber of
Commerce. Acts 1915, Ex. Sess. pp. 107, 108;
1921, p. 252.
Editor's Note.— For a similar definition in the Act of
1910 see § 1770 (1).
A reference to the amendatory act of 1921 (Acts 1921, p.
252, § 1) will reveal that a typographical error was made
in the year of the act amended. In other words it stated
that § 2 of the Act of 1919 was thereby amended while the
caption shows it was this section of the Act.
Constitutionality. — The act of 1915, is not violative of
article 3, § 7, par. 8, of the Constitution of Georgia, (§
6437), on the ground that it contains matter in the body of
the act which is not covered by the caption in so far as it
attempts to affect municipal corporations. Tarver v. Al-
bany, 160 Ga. 251, 127 S. E. 856.
Exemption of Municipal Vehicles. — By amendment the
legislature excepted from the operation of the act fire ap-
paratus, passenger-carrying vehicles owned and used by
counties for transporting school children, and motor ve-
hicles owned by counties and the state and used in the con-
struction of highways, etc. But there is no exception, ex-
press or by necessary implication, exempting a munici-
pality owning motor vehicles or motorcycles. Construing
the terms of the act in connection with the amendments
thereto, it is held that the intention of the Legislature is
so plain and clear as to leave no room for reasonable doubt
that the Legislature intended that municipalities owning
motor vehicles and motorcycles do not fall within the ex-
ception, but that they must pay the license fee on those
vehicles as every other owner is required to do. Tarver v.
Albany, 160 Ga. 251, 127 S. E. 856.
The act of 1915 is not invalid as against municipalities
owning motor vehicles, on the ground that they are public
property and exempt from taxation under § 998. Tarver
v. Albany, 160 Ga. 251, 127 S. E- 856.
§ 1770(23). "Motorcycle" and "chauffeur." —
The term "motorcycle" shall apply to motor-ve-
hicles having but two main wheels in contact with
the ground upon which the operator sits astride;
but a motor-vehicle may carry one wheel attach-
ment and seat for the conveyance of a passenger.
The term "chauffeur" shall apply to any person
operating a motor-vehicle other than his own, as
mechanic, employee, for hire; but shall not apply
i to any employee of a licensed dealer, demonstrat-
[403]
§ 1770(24)
MOTOR VEHICLE LAWS— ACT OF 1915
§ 1770(26)
ing or testing cars under said dealer's license.
Acts 1915,, E. Sess. pp. 107, 108.
See note under § 1770 (1) where case is cited holding that
act applicable to motorcycles.
§ 1770(24). Registry and license of motor-ve-
hicles and chauffeurs. — Every owner of a motor-
vehicle or motorcycle shall, on or before the first
day of March in each year, before he shall ope-
rate such motor-vehicle or motorcycle, register
such vehicle in the office of the Secretary of
State, and obtain a license to operate the same for
the ensuing year; and every chauffeur, employed
to operate motor-vehicles shall likewise register
and obtain a license as hereinafter provided. Pro-
vided further, that on and after March 1st, and
before May 1st, each year, every owner of a car
registered for the previous year, shall before send-
ing his application to the office of the Secretary
of State, present it to the Sheriff of his county and
pay such Sheriff a fee of $1.00, and it shall be the
duty of the Sheriff to receipt for same on applica-
tion and. see that it is properly filled out and that
postoffice money order for the proper fee is made
payable to the Secretary of State. Said postoffice
money order and application shall then be for-
warded to the office of Secretary of State by the
owner of the car. Provided further that the Sher-
iff of each county shall arrest every chauffeur and
owner of a motor vehicle or motorcycle operating
same on the public highways of Georgia after
March 1st and 'before May 1st, without a Georgia
State license for the current year, provided this
does not apply to cars purchased after March 1st
each year, nor to those making application
through the Sheriff as herein provided. Acts
1915, Ex. Sess. pp. 107, 108; 1921, pp. 252, 253.
Editor's Note.-— This section supersedes in part § 1770
(2), Act of 1910.
For the 1925 Act providing for the registration of the
titles of motor vehicles reference should be had to § 1770
(60H)- That act probably superseded this one in some
particulars.
Rights Where Driver of Unlicensed Car Injured. — Where
a person driving a motor -truck on a public highway over a
railroad crossing is struck by a passenger-train and injured,
the mere fact that the vehicle has not been registered in tbe
office of the secretary of State, and a license obtained, and
a license fee paid as required by this section, will not
render the person so injured a trespasser, and bar his right
of recovery against the railroad company for negligence.
Central, etc., R. Co. v. Moore, 149 Ga. 581, 101 S. E. 668.
This ruling was made by the Supreme Court in answer to
a question certified to that court by the court of appeals,
and overrules the holding in Knight v. Savannah Elect.
Co., 20 Ga. App. 314, 93 S. E. 17. Central, etc., R. Co. v.
Moore, 24 Ga. App. 716, 102 S. E. 168.
The same rule is applicable where a passenger in an au-
tomobile is injured by reason of the negligence of a railway
company in failing to keep its crossing in repair. Hines
v. Wilson, 25 Ga. App. 63, 102 S. E. 646.
§ 1770(25). Application blanks. — Application
for the registration of a motor-vehicle or motor-
cycle shall be made to the Secretary of State upon
blanks prepared by him for such purpose, by the
owner. Such application shall contain a state-
ment of the name, place of residence, and ad-
dress of the applicant, together with a brief de-
scription of the vehicle to be registered, its name
and the name of its manufacturer; its factory
number, the character of its motive power, the
amount of such motive power in figures, and such
additional information as the Secretary of State
may require. Acts 1915, Ex. Sess. pp. 107, 109.
This section supersedes § 1770 (2) in part.
§ 1770(26). Schedule of annual fees for ve-
hicles; registry and license of manufacturers and
dealers; number plates; tags for purchasers; pen-
alty. — The annual fees for the licensing of the
operation of motor-vehicles and motorcycles shall
be: For each motorcycle, $5.00.
For each passenger-carrying motor-vehicle
seating ten or more passengers, $75.00.
For each passenger-carrying motor-vehicle not
exceeding 23 horsepower, $11.25.
For each motor-vehicle, exclusive of non-pas-
senger-carrying motor-vehicle or truck exceeding
23 horsepower, per horsepower, .60.
For each non-passenger-carrying motor-vehicle
or truck of one ton capacity or less, $15.00.
For each non-passenger-carrying motor-vehicle
or truck (of more) than one and not exceeding one
and one-half tons capacity, $22.50.
For each non-passenger-carrying motor-vehicle
or truck of one and one-half tons and not exceed-
ing two tons capacity, $30.00.
For each non-passenger-carrying motor-vehicle
or truck of more than two tons and not exceeding
two and one-half tons capacity, $37.50.
For each non-passenger-carrying motor-vehicle
or truck of more than two and one-half tons and
not exceeding three tons capacity, $45.00.
For each non-passenger-carrying motor-vehicle
or truck of more than three tons and not exceed-
ing three and one-half tons capacity, $52.50.
For each non-passenger-carrying motor-vehicle
or truck of more than three and one-half tons and
not exceeding four tons capacity, $75.00.
For each non-passenger-carrying motor-vehicle
or truck of more than four tons and not exceeding
five tons capacity, $150.00.
For each non-passenger-carrying motor-vehicle
or truck of more than five tons and not exceeding
six tons capacity, $375.00.
For each non-passenger-carrying motor-vehicle
or truck of more than six tons and not exceeding
seven tons capacity, $750.00.
For each non-passenger-carrying motor-vehicle
or truck exceeding seven tons capacity, $1125.00.
For each motor-vehicle not otherwise classified
herein:
(a) Not exceeding 23 horsepower, $11.25.
(b) Exceeding 23 horsepower, per horsepower,
.60.
And provided further, That whenever a motor
vehicle or motorcycle is registered on or after the
first day of August of any year, the fee of such
registration shall be one-half of the amount of the
annual registration fee, as then prescribed 'by law.
Provided, that hearses, undertakers' wagons,
ambulances, light delivery wagons, and passenger
cars with truck bodies for hauling shall pay the
tonnage rates above described for trucks, the
Secretary of State to furnish these and all trucks
a (tag of) different color than used on passenger
cars; and with the word "truck" on the same in
large letters. The use by any one of a passenger car
tag on a truck is prohibited by law, and violators
of this law shall be punished as for a misdemeanor:
and provided further that every person, firm, associ-
ation or corporation engaged, in the manufacture
or sale of motor vehicles in this State shall register
with the Secretary of State, making application
for a distinguishing dealer's number specifying
[ 404 ]
§ 1770(27)
MOTOR VEHICLE LAWS— ACT OF 1915
§ 1770(29)
the name or make of motor vehicles manufactured
or sold by them, upon blanks prepared by the
Secretary of State, for such purposes, and pay
therefor a fee of $50.00, which fee shall accom-
pany such application, and for which said fee the
Secretary of State shall furnish to said dealers
five number plates to be known as dealers' num-
bers, and to be distinguished from the number
plates herein provided for, of a different and
distinguishing color to be determined by the
Secretary of State, and lettered each consecu-
tively: "A," "B," "C," "D," "E," dealers' tags to
be for the purpose of demonstrating dealers' cars
for sale; no dealer or manufacturer may use
dealers' tags for private use, or on cars for hire,
and the Secretary of State shall discontinue fur-
nishing cardboard tags as heretofore. Acts 1919,
p. 256; 1921, pp. 252, 253.
Editor's Note. — This section supersedes in part, §§ 1770
(2), (3).
As to the disposition of these funds see the editor's note
to §§ 1770 (43) -(43 5-0.
The penalty for using passenger car tags on trucks will
be found in the Penal Code, § 528 (6).
Penalty for unlawful dealings in motor-vehicles, such as
the buying, stealing, receiving or disposing of motor-ve-
hicles or the altering of the serial number of such vehicles
will be found in the Penal Code, § 528 (7), (8), (9).
§ 1770(27). Filing, registry and record; num-
ber plates; seals; or duplicates of lost originals;
transfer and assignment of numbers. — Upon the
receipt of the application and the payment of the
required fee, the Secretary of State shall file the
application, register the vehicle, assign to it a
distinctive number, and make the same a matter oi
record. He shall furnish also, without further
cost, a number plate showing thereon the number
designated to such vehicle. The figures on the
number-plate shall be Arabic in character and
shall 'be at least four inches high and the stroke
thereof at least one-half inch wide, followed by the
letters "Ga.," and figures indicating the year for
which issued. In addition to the number-plate
above described the Secretary of State shall also
furnish to each owner a seal of aluminum or other
suitable metal, circular in form and approximately
two inches in diameter, having stamped thereon,
"Registered Motor- Vehicle No. . Ga. Motor-
Vehicle Law," with the registration number in-
serted therein and the year of issue inserted there-
in, which seal shall at all times be conspicuously
displayed on said machine; provided, that the
number used for motorcycles may be of such size
and design as may be practicable. Duplicate
number-plates, when the originals have been lost,
defaced, or destroyed, may be obtained from the
Secretary of State upon the filing of an affidavit
setting forth the facts of such loss or destruction,
and the payment of a fee of one dollar to cover the
actual cost of such number. A number when issued
shall not !be transferred from one vehicle to an-
other, and shall not be used, by any person, or upon
an}' motor-vehicle other than the motor-vehicle to
which it is assigned, and any use of said number
by any person or persons in any manner not pro-
vided, for in this Act shall be a violation of said
Act; provided, however, that where a motor-
vehicle has been duly registered in the office of the
Secretary of State, and the number assigned to
said motor-vehicle for the year, the owner of said
motor-vehicle to which said number has been as-
signed may, upon the sale or exchange of said
motor-vehicle, transfer and assign the number as-
signed to said motor-vehicle to the purchaser of
said machine, by registering such transfer in the
office of the Secretary of State and the payment of
fifty cents, which shall accompany said transfer or
registration, and upon said transfer the assignee of
said number shall stand in the position of the
original person in whose name sucli number was
recorded. Acts 1915, Ex. Sess. pp. 107, 110.
Editor's Note. — This section supersedes in part §§ 1770
(2), (3).
The legislature of 1925 passed a motor vehicle title
registration law herein codified as § 1770 (60^), which
provides also for the transfer of the titles of motor ve-
hicles. It should be consulted in construing this section.
The penalty for the unlawful making, etc., of license tags
for motor vehicles will be found in the Penal Code, § 528
(5). The penalty for using passenger car tags on trucks
will be found in the Penal Code, § 528 (6).
§ 1770(28). Display of number-plate.— Every
motor-vehicle or motorcycle, which is in use upon
the streets and highways of the State, shall at all
times display the number-plate assigned to it; and
the same shall be fastened on the rear of the ma-
chine, in a position so as not to swing, and shall be
at all times plainly visible. No number-plates
other than those furnished by the Secretary of
State shall be used. Acts 1915, Ex. Sess. pp. 107,
111.
This section probably supersedes § 1770 (3) in part.
§ 1770(29). Brakes, signal-horn or bell, and
lamps. — Every motor vehicle and motorcycle,
while in use or operation upon the streets or high-
ways of this State shall at all times be provided and
equipped with efficient and serviceable brakes and
with a signaling device consisting of a horn, bell,
or some other suitable device. It shall likewise be
equipped with at least two front lamps, throwing
strong lights to a reasonable distance in the direc-
tion in which such vehicle is proceeding, so ar-
ranged that said lights shall not be reflected
higher than three and one-half feet (3^> feet)
above the ground at a distance of seventy-five feet,
or said machine shall be equipped with dimmers,
which shall be put on by the operator of said ma-
chine upon the roads of this State when approach-
ing a machine or vehicle within two hundred yards
from such machine or vehicle, a rear lamp showing
a red light plainly visible in the reverse direction to
to which said vehicle is proceeding and such other
light so reflected as to clearly reveal the figures on
the number plate; provided, that a motorcycle
shall Ibe required to be equipped with one front
light only. All of such lamps or lights shall at all
times be kept burning while such vehicle is in use or
operation or standing in a public street or highway
during a period from one hour after sunset until one
hour before sunrise. Acts 1915 Ex. Sess. 107, 111;
1918, pp. 203, 204.
Editor's Note — Although this Act was probably un-
constitutional until the amendment of 1918, it was rendered
valid by it. See the editor's note to § 1770 {33).
However § 1770 (50) from the Act of 1921, probably super-
sedes it.
Operation Without Burning Lights.— Under the facts of
the case the court did not err in charging, in substance,
that, under this section it is a criminal offense for a per-
son to operate a motor vehicle on a public highway of this
state during the period between one hour after sunset and
one hour before sunrise, without having any lights burn-
ing on the vehicle, whether or not the vehicle was equipped
with such lamps as is required by the statute. Fuller v.
State, 33 Ga. App. 372, 126 S. E. 302.
405 ]
§ 1770(30)
MOTOR VEHICLE LAWS— ACT OF 1915
§ 1770(37)
§ 1770(30). Speed limit and control on highway
or street. — No person shall operate a motor-vehicle
or motorcycle upon any public street or highway at
a speed greater than is reasonable and safe, not to
exceed a speed of 30 miles per hour, having due re-
gard for the width, grade, character, traffic and
common use of such street or highway; or so as
to endanger life, limb or property in any respect
whatever. Acts 1915, Ex. Sess. pp. 107, 112.
Editor's Note. — Although the court of appeals has held
that it was the evident intent of the legislature that this
section should be exhaustive of the entire subject of regu-
lating the speed of all auto-vehicles and automobiles, and
should operate as a substitute for § 5 of the act of 1910
(Ga. E. 1910, p. 92) (Hardy v. State, 25 Ga. App. 287, 103
S. E. 267) the supreme court held in Jones v. State, 151
Ga. 502, 107 S. E. 765, that this section is unconstitutional
for reasons explained in the editor's note under § 1770 (1).
The present law on the subject will be found at § 1770
(51), act of 1921.
§ 1770(31). Approach of bridge, crossing, etc. —
Upon approaching any bridge, railroad-crossing,
dam, sharp curve, dugway or deep descent, or in
traversing such bridge, railroad-crossing, dam,
curve, dugway or descent, the operator of a motor-
vehicle or motorcycle shall at all times have said
vehicle under immediate control, and shall not
operate said vehicle at a greater speed than ten
miles per hour. Acts 1915, Ex. Sess. pp. 107, 112.
This section has been held unconstitutional. See the
editor's notes under §§ 1770 (1) and (5) for an explanation.
The present law on the subject is codified as § 1770 (51)
of this code.
§ 1770(32). Passing by horse or draft animal. —
Upon approaching or passing any person walking
in the roadway, traveling any public street or high-
way, or any horse or other draft animal being led,
ridden or driven thereon, or upon any bridge or
crossing at an intersection of public streets or high-
ways, the operator of a motor-vehicle or motor-
cycle shall at all times have the same under imme-
diate control; and if such animal shall appear to he
frightened, or if the person in charge thereof shall
signal by raising his hand or calling, the operator
shall immediately stop his vehicle. If travelling in
the opposite direction, the operator shall hold his
vehicle stationary until such animal shall have had
reasonable time to pass by; and if traveling in the
same direction, shall use reasonable precaution in
order to avoid frightening the animal or causing
accident; and in approaching or passing such
animal, the operator shall not use exhaust cut-out
of his vehicle, or cause any other unnecessary noise.
Acts 1915 Ex. Sess. pp. 107, 112.
As to constitutionality, see editor's note under § 1770
(5), and see § 1770 (7).
For the law now in force, see § 1770 (51).
§ 1770(33). Passing cars and trains. — No person
operating a motor-vehicle or motorcycle upon a
public street or highway in this State shall drive
the same past the rear step of any street car, in-
terurban or other passenger train, in said street
or highway, while the same is standing still for the
purpose of taking on or letting off passengers to
or from such car or train. Acts 1915 Ex. Sess. pp.
107, 113; 1921, pp. 252, 254.
Editor's Note. — It will be noticed that this section (this
part of § 10 of the act) was amended in 1921. According
to the decision in Edalgo v. So. Ry. Co., 129 Ga. 256, 265, 58
S. E. 846, where it was held that the entire act then before
the court was not void, and it was therefore compe-
tent for the General Assembly to amend the act by re-
lieving it of the infirmity which affected only one portion
thereof, and thus by amendment complete the scheme at-
tempted in the original act, it is possible that the con-
titutional objection to this part of the act was cured, suclr
objection being that the original act was not related to
the object for which the special session at which it was
passed was called.
This would make no material difference inasmuch as an
act approved three days earlier, passed by the same legis-
lature, contains almost an exact statement of this section
[see § 1770 (51)], were it not for the fact that it provides
"past any street car" while this section says "past the
rear step of any street car," this being the only difference
between the two. The words "the rear step" were ex-
pressly added by the amendment of 1921, the section read-
ing prior to that time "shall drive the same past any
street car."
[See the first headnote in Butts Co. v. Strahan, 151 Ga.
417, 107 S. E. 163.]
§ 1770(34). Rule of the road as to passage. — ■
Whenever any operator of a motor-vehicle or
motorcycle shall meet, on a public street or high-
way, any person or persons riding or driving one
or more horses, or any other draft animal, or any
other vehicle, approaching in the opposite direc-
tion, the operator shall turn his vehicle to the right
so as to give one-half of the traveled roadway, if
practicable, and a fair opportunity to the other to
pass by without unnecessary interference; and if
traveling in the same direction, he shall pass to
the left side of the person or vehicle overtaken, and
the person or vehicle overtaken shall give him a fair
opportunity to pass. Acts 1915, Ex. Sess. pp. 107,
113.
This section is likely unconstitutional; see the editor's
note under § 1770 (1) for explanation.
For the law in force, see § 1770 (52).
§ 1770(35). Signal warning. — The operator of
a motor-vehicle or motorcycle in motion on any
public street or highway shall give due and timely
warning, by using his signaling apparatus, to
every person riding or driving any horse or horses
or horse drawn or other vehicle, which he may
meet or approach; and he shall likewise give due
warning and reduce speed upon approaching any
sharp curve, dugway, descent or other dangerous
place upon such street or highway. Acts 1915 Ex.
Sess. pp. 170, 113.
This section is probably unconstitutional; see editor's note
under § 1770 (11). For the similar provision of the Act
of 1910 see § 1770 (6).
For the law in force, see § 1770 (53).
§ 1770(36). Accident; duty to stop and give
name, etc. — In case of accident to any person or
damage to property upon the public street or
highway, due to the operation of a motor-vehicle
or motorcycle thereon, the operator of such ma-
chine shall immediately stop, and, upon request
of the person injured or sustaining damages there-
by or of any other person present, give such per-
son his name and address; and if he is not the
owner of such vehicle, then the name and address
of the owner thereof. Acts 1915, Ex. Sess., pp.
107, 113.
This section is unconstitutional; see editor's note under
§ 1770 (1).
For the law in force, see § 1770 (36).
§ 1770(37). Chauffeur's license, how obtained.
— Application for a chauffeur's license shall be
made to the Secretary of State upon blanks pre-
pared by him for such purpose, and shall he
signed and certified by oath or affirmation. Such
application shall be made annually on or before
the first day of March, and shall contain a state-
ment of the name and address of the chauffeur,
[ 406 ]
§ 1770(38)
MOTOR VEHICLE LAWS— ACT OE 1915
§ 1770(42)
and such other information as the Secretary of
State may require; and shall be signed and en-
dorsed by at least three responsible owners of
motor-vehicles and employers of chauffeurs; pro-
vided, that no such license shall be issued, to any
person under sixteen years of age. A fee of $2.00
shall accompany the application; provided, that if
the application shall be made on or after the first
day of August of any year, the fee shall be one
dollar. Acts 1915, Ex. Sess., pp. 107, 114.
This section is probably not unconstitutional; see edi-
tor's note under § 1770 (1).
But for a law superseding it see § 1770 (55).
§ 1770(38). Filing and record; badges. — Upon
receipt of such application and the payment of the
required fee, the Secretary of State shall file the
iplication, register the same, assign to the appli-
:ant a distinctive number, and make the same a
matter of record in his office. He shall likewise
"urnish such chauffeur a badge, which badge shall
;>e evidence of his right to act as chauffeur until
the first day of March following. Such badge
shall ibe of aluminum or some other suitable metal,
oval in form, the greater diameter not to exceed
two inches; and there shall be stamped thereon
:he words, "Registered Chaueffur No. (Here
insert the registration number designated), State
}f Georgia." The badges shall be of uniform size
lumbered consecutively, beginning with the fig-
ire "1" shall be of a different and distinctive color
tor each year, and shall be issued in consecutive
Drder.
The chauffeur shall at all times, while operating
i motor-vehicle upon the public streets and high-
ways, wear his badge pinned to his clothing
in a conspicuous place. No registered chauf-
feur shall voluntarily or otherwise permit
any other person to wear his badge; nor shall any
person wear a chauffeur's badge belonging to any
other person, or a fictitious badge, while operating
i motor-vehicle upon the public streets and high-
ways. Acts 1915, Ex. Sess., pp. 107, 114.
There is no section or portion of a section corresponding
to this one in either the Act of 1910 or 1921. However this
section was probably constitutional; see editor's note undei-
§ 1770 (1).
§ 1770(39). Persons forbidden to operate.— No
person shall operate a motor-vehicle or motor-
cycle upon any street or highway, whether as
owner or operater of such vehicle, if under six-
teen years of age, or while under the influence of
intoxicating liquors or drugs; and no person shall
take, use or operate any motor-vehicle or motor-
cycle upon the public streets and highways, with-
out the permission of the owner thereof. Acts
1915, Ex. Sess., pp. 107, 115.
Editor's Note. — So much of this section as declares it to
be unlawful for any person to operate a motor-vehicle upon
any public street or highway while under the influence of
intoxicating liquors or drugs is unconstitutional and void,
for the reason that the constitution, art. 5, sec. 1, par. 13
(Civil Code, § 6482), declares that "no law shall be en-
acted at a called session of the General Assembly, except
such as shall relate to the object stated in his [the Gov-
ernor's] proclamation convening them, and such designated
portions of the act above referred to do not relate to any
object stated in his proclamation calling the special ses-
sion, the only reference to motor-vehicles in the procla-
mation being as to amending the automobile license -tax
laws of the State, so as to secure the collection and dispo-
sition of the same. The approval of the act by the gov-
ernor did not effect it. (Jones v. State, 151 Ga. 502, 107 S.
E. 765.) See editor's note to § 1770 (1).
[ 40
For the corresponding section of the act of 1110. see §
1770 (4).
For the law in force, see § 1770 (56).
§ 1770(40). Non-residents, license not required
of. — Motor-vehicles owned by nonresidents ot the
State may be used and operated on the public
streets and highways for a period of thirty days,
without having to register and obtain a license so
to do, or a chauffeur's license; provided, that the
owner or owners thereof shall have fully complied
with the laws requiring the registration of motor-
vehicles in the State or Territory of their resi-
dence, and that the registration number and the
initial letter of such State or Territory shall be
displayed, and plainly visible on such vehicle or
vehicles. In other respects, however, motor-ve-
hicles owned by non-residents of the State and in
use temporarily within the State, shall be subject
to the provisions of this Act; provided, no resi-
dent of this State shall be allowed to operate a
motor-vehicle within this State under a license is-
sued by another State. Acts 1915, Ex. Sess., pp
107, 115.
This section is probably not unconstitutional for the rea-
sons stated in editor's note to § 1770 (1).
For a similar provision in the Act of 1910, see § 1770 (13).
§ 1770(41). Municipal ordinances effective. —
Nothing contained in this Act shall be construed
as changing or interfering with any regulation or
ordinance which has heretofore or may hereafter
be adopted 'by any municipality of this State regu-
lating the running or operation of motor-vehicles
described in this Act; provided such regulation
or ordinance is not in conflict with the provisions
of this Act; and provided further, that nothing
in this Act shall prevent cities and. incorporated
towns from regulating, by reasonable ordinance,
the rate of speed, noisy cut-outs and glaring elec-
tric headlights within said cities and towns; pro-
vided further, that nothing herein shall prevent in-
corporated cities and towns from requiring by or-
dinance the owners of motor-vehicles residing
within the incorporated limits of said cities or
towns to register the number of the State license
with the clerk of council or other officer to be
designated by such city or town, together with a
brief description of such motor-vehicle; and said
incorporated cities or towns shall have the power
to provide a penalty for the violation of such or-
dinance, provied no additional license fee shall be
charged b}' any municipality. Acts 1915, Ex.
Sess., pp. 107. 115.
This section is probably unconstitutional for the reasons
stated in the editor's note to § 1770 (1). For a similar pro-.
vision in the Act of 1910, see § 1770 (12).
For the law in force see § 1770 (57).
§ 1770(42). Sheriffs' and constables duties;
costs; inspector. — The Secretary of State shall,
at least one in each month, call the attention of
the Sheriffs in the several counties of this State
to the provisions of this Act, and it shall be the
duty of the Sheriffs and Constables to make in-
vestigation as to the violations of the provisions
of this Act, and the Sheriffs and Constables shall
have authority, and it is hereby made their duty
to swear out warrant and prosecute any and all
owners of motor vehicles who violate any of the
provisions of this Act. The costs of said Sheriffs
and Consta'bles shall be paid in the same manner
as other criminal costs are paid under the law.
7]
§ 1770(43)
MOTOR VEHICLE LAWS— ACT OF 1915
§ 1770(45)
Provided, however, that upon the failure of the
Sheriff or Constable of any county to enforce the
provisions of this Section, the Secretary of State
shall have the right to employ an inspector in
said county at not more than four dollars per day
and his actual expenses upon an itemized sworn
statement furnished by said inspector, to seek out
and require all owners of motor vehicles to regis-
ter said vehicles in accordance with this Act. Acts
1915, Ex. Sess., pp. 107, 116; 1921, pp. 252, 255.
Editor's Note. — This section is not now subject to the
constitutional objection pointed out in the editor's note un-
der § 1770 (1), because the amendment of 1921 cured the
defect [see case cited in editor's note under § 1770 (33)'J.
However prior to the amendment its application was re-
stricted to the enforcement of the license law of the Act
of 1915, and could not be applied to the regulation of the
use of automobiles in that act.
§ 1770(43). Expense fund; annual budget sheet.
— The necessary expenses to carry out the provi-
sions of this law shall be defrayed out of the sums
collected thereunder and the amount thereof shall
be fixed annually in advance upon an itemized
budget sheet submitted by the Secretary of State,
thirty days prior to the meeting of the General
Assembly, accompanied by an itemized report of
the expenditures made for the preceding year,
when approved by the Governor of this State;
and said expense fund, or so much thereof as shall
be needed, shall be drawn upon warrants of the
Governor, supported by bills of particulars and
vouchers submitted by the Secretary of State;
Provided, said expense fund as shown by said
approved budget sheets shall be set aside out of
the first collections made hereunder in any fiscal
year, and provided the sums used to defray said
expenses shall not exceed 15 per cent of the total
revenue derived under this Act. Acts 1919, pp.
256, 258.
Editor's Note.— This section is not subject to the con-
stitutional objection pointed out in the editor's note un-
der § 1770 (1) because the Act of 1919 amended all parts
of the section of the Act of 1915 as amended by the Act
of 1918 (which was similar language to § 1770 (14), Acts
1910) by substituting the language here found.
[See editor's note to § 1770 (33)].
The amendment of 1919 was intended to provide for the
paying of the expense of enforcing all of the Act of 1915.
The part of that act regulating the use of automobiles
has been held unconstitutional. [See editor's note to §
1770 (1)]. Therefore this section can not apply to it.
The Act of 1921 to regulate the use of automobiles does not
provide for the manner of defraying the expenses. It is
not probable that this section could apply to it.
Refer to the editor's note under the succeeding section to
determine how the fund reaches the Treasury.
§ 1770(43^). Fees turned over to State Treas-
urer.—The full amount of the fees collected under
this Act shall be turned into the State Treasury by
the Secretary of State within thirty days after
collection, in such manner as the State Treasurer
may prescribe, and that it shall be the duty of the
State Treasurer to set aside from said fees the sum
authorized by the budget sheet as prescribed under
Section 1770(43). The remainder of said funds aris-
ing under and by virtue of this Act shall be distri-
buted each year by the State Highway Commission
among the several counties of this State, according
to post-road mileage in each county, and spent by
said Highway Commission in the building, repair-
ing and maintaining public roads in each county
until December 31, 1920, at which time said State
Highway Commission shall apply said fund to
liquidate the bonded indebtedness of said State
created to support and build roads therein, and pay
the interest on same; but should no such bonded
indebtedness be so created, then said State High-
way Commission shall continue to distribute said
funds among the several counties as aforesaid, and
apply the same as aforesaid, until said bonds are
authorized. Acts 1919, pp. 256, 260.
Editor's Note. — By the Act of 1915, § 20, a method of
disposing of the funds collected under the act was provided
which was similar to the provisions of the Act of 1910, §§
1770 (14) -(20) of this code, and it likely superseded it. The
act of 1915 was amended by the Act of 1919 as set out above.
In the case of Putts v. Strahan, 151 Ga. 417, 107 S. E. 163,
it was held that the above section in so far as providing
for the distribution of the fund to the counties is con-
cerned is in conflict with a more recent act of the same
legislature, and therefore the later act, which is herein
codified as § 828 (21), should control.
It will be seen that § 828 (15), a portion of the same act
as 828 (21), provides that "all funds realized from motor
vehicles licenses or fees under present or future laws, less
the expense of collecting the same as provided by law, shall
be deposited with the treasurer of this state. So it seems
to be the intention of the legislature in §§ 828 (15), and
(21) to leave the expense of collecting the funds as before
so that the first part of this act, providing that the funds
shall be paid into the treasurer and he shall immediately
set aside the sum necessary to pay the expense as provided
in the preceding section, is still effective.
§ 1770(44). Duties of county authorities. — It
shall be the duty of the county commissioners of
each county, and ordinaries where there are no
commissioners, to file in the office of the Secre-
tary of State, annually, on or before the first day
of May of each year, a report showing the actual
number of miles of public roads outside of cities
and incorporated towns, in their respective coun-
ties. It shall also be the duty of said commis-
sioners or ordinaries, as the case may be, to' in-
clude in said report a statement from the tax
books of their respective counties, showing the
number of motor-vehicles returned for taxation
for the year previous to their report, and also to
certify in said report that 90 per cent of the own-
ers of motor-vehicles in their respective counties
have returned said motor-vehicles for taxation,
and also have registered the same in the office of
the Secretary of State. It shall be the duty of the
officials above described to cause the arrest and to
prosecute all owners of motor-vehicles who fail
or refuse to register their cars with the secretary
of State, as provided by this Act. If it be as-
certained from said report, or by the Secretary of
State, that as many as ten per cent of the motor-
vehicles in any county are not returned for taxa-
tion, and registered with the Secretary of State,
then that county shall receive no part of the au-
tomobile fund for that year. Acts 1915, Ex. Sess.,
pp. 107, 117.
Editor's Note. — This section is certainly superseded, at
least in part by more recent law. See the editor's note to
§ 1770 (43^).
§ 1770(45). Clerk's duty and salary— The Sec-
retary of State is hereby authorized to employ a
clerk whose duty it shall be to keep a full record
of all motor vehicle owners in a book to be kept
for that purpose. He shall file registrations al-
phabetically by counties, and shall furnish each
year to the County Commissioners or ordinaries,
and also the tax-receivers of the several counties,
a list of all owners of motor vehicles of their re-
spective counties who have registered in this office.
He shall perform any and every duty pertinent to
his office under the direction of Secretary of State.
[ 408 ]
§ 1770(46)
MOTOR VEHICLE LAWS— ACT OF 1921
§ 1770(51)
The salary of said clerk shall be two hundred d.ol-
lars per month, payable out of the fees received
for the registration of motor-vehicles, and the sal-
ary of the Commissioner of Motor Vehicles shall
be one hundred and fifty dollars per month, pay-
able out of the. fees received for the registration
of motor-vehicles. Acts 1915, Ex. Sess., pp. 107,
118; 1919, pp. 80.
Editor's Note. — This section was not subject to the con-
stitutional objection as pointed out in the editor's note
under § 1770 (1).
For schedule of fees provided by registration laws, see
§ 1770- (26). For manner of defraying expenses, see editor's
notes, to § 1770 (43), (43J4).
§ 1770(46). Civil action not affected. — Nothing
in this Act shall be construed to curtail or abridge
the right of any person to prosecute a civil action
for damage sustained Iby reason of injury to per-
son or property resulting from the negligible
[negligent] use of the public streets or highways
by a motor-vehicle, or motorcycle, or his owner,
his employee, or by any other operation thereof.
Acts 1915, Ex. Sess., pp. 107, 118.
For a similar provision in the Act of 1921, see § 1770 (58).
§ 1770(47). Act not avoided by invalid part. —
Should any of the provisions of this Act be held
illegal or unconstitutional, the same shall not viti-
ate the remaining provisions of said Act, but all
cf such provisions not held illegal or unconstitu-
tional shall remain of full force and effect. Acts
1915, Ex. Sess., pp. 107, 118.
§1770(48). Equal rights to use of highway;
forbidden acts. — Every owner or operator of a
machine shall have equal rights upon the public
highways of this State with all other users of such
highways, and no person or person shall throw
glass, nails, tacks, or other obstructions upon the
public highways used and traversed by automo-
biles, or unreasonably obstruct or impede the
right of travel of such owner or operator while
operating, propelling or driving such machines,
and no person or persons shall give any signal
or signs of distress or danger, or call for assistance
upon a person lawfully operating any machine on
any of the public highways of this State, mali-
ciously and without reasonable cause for so doing.
Acts 1915, Ex. Sess,. pp. 107, 119.
Editor's Note. — This section was probably unconstitu-
tional for the reason pointed out in the editor's note to §
1770 (1).
The present law on the subject will be found under §
1770 (60).
§ 1770(49). Automobile inspector for Fulton
County. — There shall be an Automobile Inspector
for Fulton County, to be appointed by the Secre-
tary of State, who shall have authority to swear
out warrants for violators of the Motor Vehicle
Law. Acts 1921, pp. 252, 254.
As to the penalty for the violation of this act, see §
528 (3), P. C.
ARTICLE 3.
Acts 1921, pp. 255 et seq.
§ 1770(50). Equipments. — Every motor vehicle
and motorcycle, while in use or operation upon
the streets or highways of this State, shall at all
times be provided and equipped with efficient and
serviceable brakes, and with a signaling device,
consisting of a horn, bell or some other suitable
devise. It shall likewise be equipped with at least
two front lamps, throwing strong, white lights to
a reasonable distance in the direction in which
such vehicle is proceeding, a rear lamp showing a
red light plainly visible in the reverse direction
to which said vehicle is proceeding, and such
other lights as to clearly reveal the figures on the
numberplate; provided, that a motorcycle shall be
required to 'be equipped with one front light only.
All of such lamps or light shall at all times be
kept burning while such vehicle is in use or opera-
tion or standing in a public street or highway dur-
ing the period from one hour after sunset until
one hour before sunrise. Acts 1921, pp. 255, 25G.
Editor's Note. — This act supersedes both the Acts of
1910 and amendatory act, and the act of 1915, and amenda-
tory acts [§§ 1770 (1) - (48)] insofar as they cover the same
subject matter. A great part of the Act of 1915 was un-
constitutional [see editor's notes under §§ 1770 (1) and
1770 (21)], except as revived by the amendatory acts [for
examples see §§ 1770 (29), (33), (42)].
In deciding that portions of the Act of 1915 (before it was
held unconstitutional) were intended to be exhaustive of the
entire subject-matter dealt with even though the corres-
ponding parts of the Act of 1910 contained regulations dif-
ferent from those of the Act of 1915, the Court of Appeals
in Hardy v. State, 25 Ga. App. 287, 103 S. F. 267, said,
"When a revising statute covers the whole subject-matter
of antecedent statutes, it virtually repeals the former en-
actments, without any express provision to the effect.
Where some parts of the revised statute are omitted in
the new law, they are not, in general, to be regarded as
left in operation if it clearly appears to have been the in-
tention of the legislature to cover the whole subject by
the revision."
Sec. 1770 (29), the corresponding section of the Act ot
1915 as amended by the Act of 1918, provided the distance
the lamps must throw lights and the heighth of such light
and also provided for dimmers all of which were omitted
from this section.
Sections 1770 (33) and 1770 (42) were amended by the
Act of 1921, which was approved a few days later than
this Act. Sec. 1770 (33) is similar to the last paragraph of
§ 1770 (51) but there is a slight difference which would
probably make § 1770 (33) control. (See the editor's notes
to those sections).
The penalty for the violation of this act [§§ 1770 (50)-
1770 (60)] will be found in the Penal Code, § 528 (4).
A violation of this section will very likely be held negli-
gence per se. See notes to § 1770 (4).
Necessity of having lights burning, see note to § 1770 (29).
For a definition of motor vehicles, see § 1770 (22).
Failure to Have Lights Burning. — It was not error un-
der the facts of this case for the court to charge that it is
a criminal offense under this act for a person to operate a
motor vehicle on a public highway during the period of
time prescribed by the section without having any light
burning on the vehicle, whether or not the vehicle was
equipped with lamps as required by the statute. Davis v.
West, etc., 32 Ga. App. 460, 123 S. E. 757.
§ 1770(51). Speed limit; intersections, etc;
pedestrians, horses, etc.; passing stationary street
cars, etc. — No person shall operate a motor ve-
hicle or motorcycle upon any public street or high-
way at a speed greater than is reasonable and safe,
not to exceed a speed of 30 miles per hour, having
due regard for the width, grade, character, traffic
and common use of such street or highway; or
so as to endanger life, limb or property in any re-
respect whatever.
Upon approaching- any intersecting highway,
bridge, railroad crossing, dam, sharp curve, dug-
way or deep descent, or in traversing such inter-
secting highway, bridge, railroad crossing, dam,
sharp curve, dugway or descent, the operator of a
motor vehicle or motorcycle shall at all times have
said vehicle under immediate control, and shall
not operate said vehicle at a greater speed than ten
miles per hour. '
[409 ]
§ 1770(52)
MOTOR VEHICLE LAWS— ACT OF 1921
§ 1770(56)
Upon approaching or passing any person walk-
ing in the roadway, traveling any public street or
highway, or any horse or other draft animal being
led, ridden or driven thereon, or upon any bridge
or crossing at an intersection of public streets or
highways, the operator of a motor vehicle or mo-
torcycle shall at all times have the same under im-
mediate control; and if such animal shall appear
to be frightened, or if the person in charge thereof
shall signal by raising his hand or calling, the opera-
tor shall immediately stop his vehicle. If traveling in
the opposite direction the operator shall hold his
vehicle stationary until such animal shall have had
a reasonable time to pass toy; and if traveling in
the same direction, he shall use reasonable precau-
tion in order to avoid frightening the animal or
causing accident; and in approaching or passing
such animal, the operator shall not use exhaust
cut-out of his vehicle, or cause any other unneces-
sary noise.
No person operating a motor vehicle or motor-
cycle upon a public street or highway in this State
shall drive the same past any street car, interur-
ban or other passenger train, in said street or
highway, while the same is standing still for the
purpose of taking on or letting off passengers to
or from such car or train. Acts 1921, pp. 255, 256.
Editor's Note.— While this section supersedes §§ 1770 (5),
<6), (7), and 1770 (30), (31), (32), the provisions are simi-
lar. Under §§ 1770 (5), and 1770 (6) annotations will -be
found, many notes of which will be applicable to this sec-
tion.
It was held in Hardy v. State, 25 Ga. App. 287, 103 S.
K. 267 that § 10 of the Act of 1915 [§§ 1770 (30) -(33)], con-
taining provisions corresponding to this section, was intended
to supersede § 5 of the Act of 1910 [§ 1770 (5)]. It is
probable that this section likewise was intended to be ex-
haustive of the entire subject of regulating speed (see edi-
tor's note under § 1770 (50).
As pointed out in the editor's notes under §§ 1770 (33)
and (50), the latter paragraph of this section is almost
identical with § 1770 (33) and it is very likely that, if the
difference is material, § 1770 (33) will control as the last
expression of legislative will, as pointed out in the editor's
note to that section.
The legislature passed a new act in 1925, herein codified
as §§ 2677 (7)-2677 (15), regulating the crossing of rail-
roads and it probably supersedes this act relating to rail-
road crossings.
Violation Negligence Per Se— Includes City Streets.— The
plaintiff was guilty of negligence per se in violating that
statute prohibiting an automobile to approach "any inter-
secting highway at a greater speed than ten miles per
hour." This act includes city streets. Faggart v. Rowe
33 Ga. App. 423, 126 S. E. 731.
"Immediate Control" Defined.— The court did not err in
refusing to define the term "immediate control" as mean-
ing such ^ speed as would enable an operator of a vehicle
to bring it to a stop within vision of a railroad crossing or
short curve never to exceed ten miles per hour, and this
without reference as to whether the weather was clear or
rainy. The charge given by the court was a proper state-
ment of a law. Railroad v. Burton, 33 Ga App 199 125
S. E. 868.
Section Cumulative to Common Law. — This section im-
poses certain statutory duties upon drivers of automobiles
with reference to persons and property using the highway.
These are cumulative and do not destroy the common law
duties of drivers relative to such persons and property us-
ing the highway. At common law the driver owes the duty
to exercise ordinary care to avoid injury. Davies v West
etc., 32 Ga. App. 460, 123 S. E. 757. Discussion of ordinary
care relative to such use may be found in this case Ed
Note.
§ 1770(52). Passing moving vehicles. — When-
ever any operator of a motor vehicle or motorcycle
shall meet on a public street or highway, any per-
sons riding or driving one or more horses, or any
other draft animal, or any other vehicle, approach-
ing in the opposite direction, the operator shall
turn his vehicle to the right so as to give one-half
of the traveled roadway, if practicable, and a fair
opportunity to the other to pass by without un-
necessary interference; and if traveling in the
same direction, he shall pass to the left side of the
person or vehicle overtaken, and the person or ve-
hicle overtaken shall give him a fair opportunity
to pass. Acts 1921, pp. 255, 257.
Editor's Note — Section 1770 (34), the Act of 1915, is al-
most identical with this section but it was unconstitutional
for the reason pointed out in the editor's note to § 1770 (1).
This section is the law in force, except that the act of
1925, codified as "§§ 2677 (7) to 2677 (15), regulates the
crossing of railroads.
§ 1770(53). Warning. — The operator of a mo-
tor vehicle or motorcycle in motion on any pub-
lic street or highway shall give due and timely
w-arning, by using his signaling apparatus, to
every person riding or driving any horse or
horses, or horse-drawn or other vehicle, which he
may meet or approach; and he shall likewise give
due warning and reduce speed upon approaching
any sharp curve, dugway, descent or other dang-
erous place upon such street or highway. Acts
1921, pp. 255, 257.
Editor's Note.— Both the Act of 1910 [§ 1770 (6)] and the
Act of 1915 [§ 1770 (35)] contained similar provisions. The
Act of 1915 was unconstitutional for reason there pointed
out.
This section superseded § 1770 (6). Many of the annota-
tions under that section are probably applicable to this
one.
§ 1770(54). Accidents. — In case of accident to
any person or damage to property upon the pub-
lic street or highway, due to the operation of a
motor vehicle or motorcycle thereon, the opera-
tor of such machine shall immediately stop, and,
upon request of the person injured or sustaining
damages thereby, or any other person present,
give such person his name and address, and if he
is not the owner of such vehicle, then the name
and address of the owner thereof. Acts 1921, pp.
255, 258.
Editor's Note. — Sec. 1770 (36) is similar to this section
but it was unconstitutional for the reason there pointed out.
This section is the law in force."
§ 1770(55). Chauffeur's license. — Application
for a chauffeur's license shall be made to the Sec-
retary of State upon blanks prepared by him for
such purpose and shall be signed and verified (by
oath or affirmation. Such application shall be
made annually on or before the first day of March,
and shall contain a statement of the name and ad-
dress of the chauffeur, and such other information
as the Secretary of State may require; and shall
be signed and endorsed by at least three respon-
sible owners of motor vehicles and employers of
chauffeurs. Acts 1921, pp. 255, 258.
Editor's Note. — This section supersedes § 1770 (37). See
also § 1770 (38) for which there is no corresponding sec-
tion in this act, providing for badges. It is very likely that
that section was not unconstitutional for the reason pointed
out in § 1770 (1).
§ 1770(56). Qualification of chauffeur. — No
person shall operate a motor vehicle or motor-
cycle upon any public street or highway, whether
as owner or operator of such vehicle, if under six-
teen years of age, or while under the influence of
intoxicating liquors or drugs; and, no person shall
take, use or operate any motor vehicle or motor-
cycle upon the public streets and highways, with
[410]
§ 1770(57)
TITLE REGISTRATION ACT
§ 1770(601/0
out the permission of the owner thereof. Acts
1921, pp. 255, 258.
Editor's Note. — There were similar provisions both in
the Acts of 1910 [§ 1770 (9)], and 1915, [§ 1770 (39)]. Sec.
1770 (39) was held unconstitutional (see editor's note) and
5 1770 (9) was in force until, this section was enacted.
§ 1770(57). Municipal regulations. — Nothing
contained in this Act shall be construed as chang-
ing or interfering with any regulation or ordinance
which has heretofore or may hereafter be adopted
by any municipality of this State, regulating the
running or operation of motor vehicle described in
this Act; provided such regulation or ordinance
is not in conflict with the provisions of this Act;
and provided further, that nothing in this Act
shall prevent cities and incorporated towns from
regulating, by reasonable ordinance, the rate of
speed, noisy cut-outs and glaring head-lights
within said cities and towns; provided further, that
nothing herein shall prevent incorporated cities
and towns from requiring by ordinance the own-
ers of motor vehicles residing within the incorpo-
rated limits of said cities or towns to register the
number of the State license with the clerk of the
Council or other officer to Ibe designated by such
city or town; together with a brief description of
such motor vehicle; and said incorporated cities
or towns shall have the power to provide a pen-
alty for the violation of such ordinance provided
no additional license fee shall be charged by any
municipality. Acts 1921, pp. 255, 258A.
Editor's Note. — Similar provisions were in both the
preceeding acts [see §§ 1770 (12) and 1770 (41)].
This is the law in force.
Violation of Ordinance Negligence Per Se. — According to
the allegations of the petition and the disputed testimony
offered in support thereof, the defendant was guilty of
negligence per se in violating a municipal ordinance of the
city of Savannah, regulating the manner in which an auto-
mobile should make a turn to the left at an intersecting
street. Faggart v. Rowe, 33 Ga. App. 423, 522, 126 S. E.
731.
Proximate Cause and Contributory Negligence Jury
Questions. — In view of the plaintiff's testimony as to the
defendant's making a left turn in violation of a city ordi-
nance, it was a question of fact for the trial judges to de-
termine what was the proximate cause of the plaintiff's
injury, and whether negligence of the plaintiff or of the de-
fendant caused or contributed to the same. Faggart v.
Rowe, 33 Ga. App. 422, 423, 126 S. E. 731.
§ 1770(58). Action for damages. — Nothing in
this Act shall be construed to curtail or abridge
the right of any person to prosecute a civil ac-
tion for damage sustained by reason of injury to
person or property resulting from the negligent
use of the public streets or highways by a motor
vehicle, or motorcycle by the owner or his em-
ployee, or by any other operation thereof. Acts
1921, pp. 255, 259.
Editor's Note.— For similar provisions in the Act of 1910
and 1915, see §§ 1770 (10) and 1770 (46).
§ 1770(59). Effect of partial invalidity.— Should
any of the provisions of this Act be held illegal or
unconstitutional, the same shall not vitiate the re-
maining provisions of said Act, but all of such
provisions not held illegal or unconstitutional
shall remain of full force and effect. Acts 1921,
pp. 255, 259.
§ 1770(60). Obstructions of highways. — Every
owner or operator of a machine shall have equal
rights upon the public highways of this State with
all other users of such highways, and no person
or persons shall throw glass, nails, tacks, or other
[41
obstructions upon the public highways used and
traversed by automobiles, or unreasonably ob-
struct or impede the right of travel of such. owner
or operator while operating, propelling or driv-
ing such machines, and no person or persons shall
give any signal or signs of distress or danger, or
call for assistance upon a person lawfully operat-
ing any such machine on any of the public high-
ways of this State,' maliciously and without rea-
sonable cause for so doing. Acts 1921, pp. 255,
259, 260.
Editor's Note. — This section was contained in each of
the preceding acts, see §§ 1770 (11) and 1770 (48). T! ■
latter section was unconstitutional for reasons assigned.
This is the law in force.
ARTICLE 4.
Title Registration Act.
§ 1770(60^). Registration of motor vehicles;
evidence of ownership; certificate; transfer; revoca-
tion.— Initial applications for registration by
owners of motor vehicles as defined by law shall
be sworn to and shall include such additional in-
formation of ownership as the Secretary of State
shall deem proper, and no motor vehicle shall be
registered unless the Secretary of State is satisfied
the applicant for registration is entitled to have the
motor vehicle registered in his name. Proof of
purchase at a judicial sale or previous registration
in this State by the applicant may be accepted as
evidence of ownership by the Secretary of State.
A certificate of registration containing such de-
scription and evidence of identification of the
motor vehicle as the Secretary of State considers
proper shall be issued, to the owner of each reg-
istered motor vehicle by the Secretary of State.
The certificate of registration shall be good for the
motor vehicle year in which issued so long as •the
motor vehicle is owned by the original holder of
the certificate of registration. Duplicates may be
obtained at a. charge of fifty cents upon supplying
the Secretary of State such information sworn to
as he considers proper. Upon transfer of a motor
vehicle the owner shall on the certificate of reg-
istration thereof assign in writing in form pre-
scribed thereon said motor vehicle and make a
statement of total amount, if any, liens thereon,
and the certificate of registration shall be delivered
at the time of transfer. The transferee of the cer-
tificate of registration shall immediately surrender
the transferred certificate to the Secretary of State
and apply for and be granted a new certificate of
registration. The Secretary of State shall file the
surrendered certificate of registration so that evi-
dence of ownership to a motor vehicle may be at
all times conveniently traced. Licensed motor
vehicle dealers, however, shall hold and assign
certificates of registration received by them to per-
sons to whom the ownership of the motor vehicle
is transferred. The Secretary of State may refuse
to issue or may revoke a certificate of registration
for cause. The Secretary of State shall maintain
a record of motor vehicles reported stolen within
this State against which all applications for certifi-
cates of registration shall be checked. Applicants
for registration for motor vehicles brought into
Georgia previous^ registered in other states shall
1]
§ 1770(61)
BUSINESS OF MAKING LOANS
§ 1770(66)
be accompanied by an affidavit from the Secretary
of State, or other motor vehicle registering official
of that State, or other satisfactory evidence in-
dicating that the applicant is the lawful owner of
said motor vehicle. When an application for
license tags and certificates is made to the Secre-
tary of State, it shall be accompanied by cash,
cashier's check, postal money order, or express
money order for the license fee required by law.
Money order receipts for the proper fee shall en-
title the applicant to the use and operation of the
motor vehicle sought to be licensed and registered
for a period of fifteen days from the date of said
remittance. The Secretary of State may, in his
discretion destroy all motor vehicle records except
those of the current year and the two years next
preceding. Acts 1925, p. 315.
Editor's Note.— This act is the first title registration law
of motor vehicles in Georgia.
It does not expressly repeal any of the prior laws re-
garding the licensing and registration of motor vehicles.
However it is likely that it supersedes part of the prior
law. Some of the requirements of §§ 1770 (2), (4), (24),
end (27) are probably so superseded.
The penalty for the violation of this law will be found in
the penal code, § 528 (10).
CHAPTER 18.
Business of Making Loans.
§ 1770(61). Interest rate. — No person, co-part-
nership, or corporation, shall engage in the busi-
ness of making loans of money, credit, goods or
things in action in the amount, or to the value of
three hundred dollars ($300) or less, and charge,
contract for, or receive a greater rate of interest
than eight (8) per centum per annum therefor, ex-
cept as authorized by this Act, and without first
obtaining a license from the State Bank Examiner,
hereinafter called the licensing official. Acts 1920,
pp. 215, 216.
As to the penalty for the violation of this act, see §
476 (9), P. C.
Constitutionality.— This act is not invalid as violative of
any of the constitutional provisions set forth in §§ 6358,
6359, 6362, 6372, 6379, 6384, 6391, 6437, 6688, 6700. Badger
v. State, 154 Ga. 443, 114 S. E. 635.
The word "month" as used in this act relates only to
calendar months, whether the particular month for which
the interest is to be computed happens to consist of 28, 29,
30, or 31 days; and if the lender's charges are received in
any sum whatever in excess of that authorized by this
statute the contract of law is null and void and the lender
forfeits his right to recover either principal, or the lawful
interest and charges. Johnson v. Masters, 32 Ga. App. 60,
122 S. E. 724.
Effect of Failure to Comply with Laws. — Where plaintiff
engaged in buying and selling wages and salaries as de-
fined by this statute fails to comply with §§ 3446 et seq. as
to making bond and giving oath, judgment denying re-
covery is proper. Mcl,amb v. Philips, 129 S. E. 570.
Essential Allegations. — A litigant seeking: to recover un-
der this act must as conditions precedent show that he
was properly licensed [see § 1770 (64)], that the contract
was made under such license and at the place of business
designated therein [see § 1770 (68)], that the contract does
not upon its face show any violation of the act or failure
to comply with its mandatory provisions, and that at the
time of the loan he delivered to the borrower the state-
ment prescribed by § 1770 (74). In the absence of any of
these essentials the contract of loan in which the borrower
agreed to pay interest at any rate higher than 8 per cent
per annum is usurious. Jobson v. Masters, 32 Ga. App.
60, 112 S. E- 724.
Petition made case under this act. Atlanta Finance Co.
v. Fulwiler, 158 Ga. 864, 124 S. E- 689.
§ 1770(62). Application for license; fee. — Appli-
cation for such license shall be in writing and
shall contain the full name and address, both of
the residence and place of business, of the appli-
cant, and if the applicant is a co-partnership of
every member thereof, or if a corporation of
each officer thereof; also the county and
muncipality, with street and number, if any,
where the business is to be conducted. Every
such applicant at the time of making such appli-
cation shall pay to the licensing official the sum of
one hundred dollars ($100) as an annual license
fee and in full payment of all expenses of exami-
nations under the administration of this Act; pro-
vided, that if the license is issued for a period of
less than twelve months the license fee shall be
pro-rated according to the number of months that
said license shall run. Acts 1920, pp. 215, 216.
§ 1770(63). Bond. — The applicant shall also,
at the same time, file with the licensing official a
bond in which the applicant shall be the obligor
in the sum of one thousand dollars ($1,000) with
one or more sureties, to be approved by the li-
censing official, which bond shall run to the State
of Georgia for the use of the State and of any
person or persons who may have a cause of ac-
tion against the obligor of said law under the pro-
visions of this Act, such law shall be conditioned
that said obligor will conform to and abide by
each and every provision of this Act, and will pay
to the State and to any such persons any and all
moneys that may become due and owing to the
State and to such person or persons from said
obligor under and by virtue of the provisions of
this Act. Acts 1920, pp. 215, 216.
§ 1770(64). Issuance of license. — Upon the fil-
ing of such applications and the approval of said
bond and the payment of said fee the licensing
official shall issue a license to the applicant to
make loans in accordance with the provisions of
this Act for a period which shall expire the first
day of January next following the date of the is-
suance. Such license shall not be assignable.
Acts 1920, pp. 215, 217.
See note under § 1770 (61).
§ 1770(65) Additional bond. — If, in the opinion
of the licensing official, the bond shall at any
time appear to be insecure or exhausted, or other-
wise doubtful, an additional bond in the sum of
not more than one thousand dollars ($1,000), sat-
isfactory to the licensing official, shall be filed
within ten (10) days after notice to the licensee,,
and upon failure of the obligor to file such ad-
ditional bond, the license shall be revoked by the
licensing official. Acts 1920, pp. 215, 217.
§ 1770(66). Revocation of license. — The licens-
ing official may, upon notice to the licensee and
reasonable opportunity to be heard, revoke such
license if the licensee has violated any provision
of this Act, and in case the licensee shall be con-
victed by a court the second time of a violation of
Section 1770(73), the licensing official shall re-
voke such license. Provided, that the second of-
fense shall have occurred after a prior conviction,
in which case another license shall not be issued
to such licensee, nor to the husband or wife of
the licensee, nor to any co-partnership or corpora-
tion of which he is an officer or member. Acts
1920, pp. 215, 217.
[412]
§ 1770(67)
BUSINESS OF MAKING LOANS
§ 1/70(76)
§ 1770(67). License to be posted. — The license
shall be kept conspicuously posted in the place of
business of the licensee. Acts 1920, pp. 215, 217.
§ 1770(68). Place of business. — No person, co-
partnership or corporation so licensed shall make
any loan provided for by this Act under any other
name or at any other place of business than that
named in the license. Not more than one place shall
foe maintained under the same license, but the li-
censing official shall issue more than one license
to the same licensee upon the payment of an addi-
tional license fee and the riling of an additional
bond for each license. Acts 1920, pp. 215, 217.
See note under § 1770 (61). As to violation, see § 476 (9),
P. C.
§ 1770(69). Change of place of business. —
Whenever the licensee shall change his place of
business he shall at once give written notice
thereof to the licensing official who shall attach
to the license his approval in writing of the
change. Acts 1920, pp. 215, 218.
§ 1770(70). Investigations. — The licensing of-
ficial, for the purpose of discovering violations of
this Act, may either personally or by any person
designated by him, at any time, and as often as he
may desire, investigate the loans and business of
every licensee and of every person, co-partnership
and corporation by whom, or which any such loan
shall (be made whether such person, co-partner-
ship or corporation shall act, or claim to act, as
principal agent or broker or under or without the
authority of this Act, and for that purpose he shall
have free access to the office or place of business,
books, papers, records, safes, and vaults of all
such persons, co-partnerships and corporations;
he shall also have authority to examine under oath
all persons whomsoever whose testimony he may
require, relative to such loans or business. Acts
1920, pp. 215, 218.
§ 1770(71). Records. — The licensee shall keep
such books and records in his place of business as,
in the opinion of the licensing official, will enable
the licensing official to determine whether the pro-
visions of this Act are being observed. Every
such licensee shall preserve the records of final
entry used in such business, including cards used
in the card system, if any, for a period of at least
two years after making of any loan recorded
therein. Acts 1920, pp. 215, 218.
§ 1770(72). Deceptive publication. — No licen-
see or other person, co-partnership or corpora-
tion shall print, publish or distribute, or cause to
be printed, published, or distributed in any man-
ner whatsoever any written or printed statement
with regard to the rates, terms or conditions for
the lending of money, credit, goods, or things in
action in amounts of three hundred dollars ($300)
or less which is false or calculated, to deceive. Acts
1920, pp. 215, 218.
As to the penalty for the violation of this act, see §
476 (9), P. C.
§ 1770(73). Amount of loans; interest. — Every
person, co-partnership and corporation licensed
hereunder many loan any sum of money not ex-
ceeding in amount the sum of three hundred dol-
lars ($300) and may charge, contract for and re-
ceive thereon interest at a rate not to exceed three | when husband and wife have been living separate
[413]
and one-half (3^) per centum per month. Inter-
est shall not be payable in advance or com-
pounded and shall be computed on unpaid bal-
ances. In addition to the interest herein provided
for no further or other charge, or amount what-
soever for any examination, service, brokerage,
commission or other thing, or otherwise, shall be
directly or indirectly charged, contracted, for or
received, except the lawful fees, if any, actually
and necessarily paid out by the licensee to any
public officer for filing or recording in any public
office any instrument securing the loan, which fees
may be collected when the loan is made or at any
time thereafter. If interest or charges in excess
of those permitted by this Act shall be charged,
contracted for or received the contract of loan
shall be null and void and. the licensee shall have
no right to collect or receive any principal, inter-
est or charges whatsoever. No person shall owe
any licensee, as such, at any time more than three
hundred dollars ($300) for principal. Acts 1920,
pp. 215, 219.
Lender's Relief in Equity. — Inasmuch as this section pro-
hibits the collection of any part of the principal, interest, and
expenses, the borrower is not required to pay back any-
thing, and consequently owes no duty in equity to the
lender. Therefore a holding overruling a demurrer to pe-
tition seeking relief against such loan is not inequitable as
violating § 4521, providing that he who would have equity
must do equity. Davis v. Atlanta Finance Co., 160 Ga.
784, 129 S. E. 51.
§ 1770(74). Statement concerning loan; re-
ceipt. — Every licensee shall deliver to the bor-
rower at the time the loan is made a statement in
the English language showing in clear and dis-
tinct terms the amount and rate of the loan and
of its maturity, the nature of the security if any,
for the loan, the name and address of the bor-
rower and of the licensee, and the rate of interest
charged. Upon such statement there shall be printed
in English a copy of Section 1770(73). Given to the
borrower a plain and complete receipt for all pay-
ments on account of any such loan at the time
such payments are made. Upon repayment of
the loan in full mark indelibly every paper signed
by the borrower with the word "paid" or "can-
celled" and release any mortgage, restore any
pledge, cancel and return any note, and cancel and
return any assignment given by the borrower as
security. Acts 1920, pp. 215, 219.
See note under § 1770 (61).
§ 1770(75). Confession of judgment; power of
attorney; stating amount of loan, etc. — No licensee
shall take any confession of judgment or any
power of attorney. Nor shall he take any note,
promise to pay, or security that does not state the
actual amount of .the loan the time for which it is
made, and the rate of interest charged, nor any
instrument in which blanks are left to be filled
after execution. Acts 1920, pp. 215, 220.
§ 1770(76). Salary assignments. — No assign-
ment of, or order for the payment of any salary or
wages, earned or to be earned, given to secure any
such loan shall Ibe valid unless such loan is con-
tracted simultaneously with its execution; nor un-
less in writing signed in person by the borrower;
nor, if the borrower is married, unless signed in
person by both husband and wife; provided, that
written assent of a spouse shall not be required
§ 1770(77)
INSPECTION, ANALYSIS AND SALE OF FERTILIZERS
§ 1771
and apart for a period of at least five months prior
to such assignment. Under any such assignment
or order for the payment of future salary or wages
given as security for a loan made under this Act,
a sum equal to ten (10) per centum of the bor-
rower's salary or wages shall be collectable there-
from by the licensee at the time of each payment
of salary or wages from the time that a copy of
such assignment, verified by the oath of the licen-
see, or his agent, together with a verified state-
ment of the amount upon such loan is served up-
on the employer. Acts 1920, pp. 215, 220.
Absolute Unconditional Sale of Salary. — There is noth-
ing in any of the sections of this act indicating an inten-
tion upon the part of the lawmakers to make penal the
absolute sale of choses in action and the making of a bona
fide contract for such purchase or sale. The transaction in
this case was not a loan, nor a partial assignment of an
account, but was an absolute and unconditional sale of the
applicant's salary or wages earned up to a certain date.
Tollison v. George, 153 Ga. 612, 614, 112 S. E. 896.
§ 1770(77). Maximum interest; to whom ap-
plies; ncn-enforcement. — No person, co-partner-
ship or corporation except as authorized by this
Act shall directly or indirectly charge, contract
for, or receive any interest or consideration greater
than eight (8) per centum per annum upon the
loan, use or foreclosure of money, goods or things
in action, or upon the loan, use or sale of credit,
of the amount or value of three hundred dollars
($300) or less.
The foregoing prohibition shall apply to any
person who, as security for any such loan, use or
forbearance of money, goods or things in action
or for any such loan, use or sale of credit, makes
a pretended purchase of property from any person
and permits the owner or pledgor to retain the
possession thereof, or who by any d.evice or pre-
tense of charging for his services or otherwise
seeks to obtain a greater compensation than is au-
thorized by this Act.
• No loan for which a greater rate of interest or
charge than is allowed by this Act, has been con-
tracted for or received, wherever made shall be en-
forced in this State and any person in any wise
participating therein in this State shall be sub-
ject to the provisions of this Act. Acts 1920, pp.
215, 220.
As to the penalty for the violation of this act, see § 476
(9), P. C.
§ 1770(78). Application of Act— This Act shall
not apply to any person, copartnership or corpora-
tion doing business under any law of the State, or
of the United States relating to banks, trust com-
panies, building and loan associations, or licensed
pawnbrokers. Acts 1920, pp. 215, 221.
§ 1770(79). Notice of assignment. — Before any
notice of assignment or purchase of wages or sal-
aries shall he binding upon any individual, firm or
corporation to whom said notice is directed, said
notice shall be accompained by a copy of the sale
or assignment verified by the assignee to be a
true and correct copy thereof. Provided, that the
assignee shall file said notice within five days from
the time of the execution of the assignment, and
provided further that the contract of assignment
shall be made in duplicate, one copy to be retained
by the assignor and the other by the assignee.
Upon receipt of the notice and verified copy of
contract aforesaid, the individual, firm or corpora-
[41
tion to whom same is delivered if it or they shall
be due the assignor the amount of wages or salarjr
so sold or assigned shall be authority to hold, said
wages or salary in its or their possession for the
benefit of the assignee and thereafter within a rea-
sonable time after the notice aforesaid pay over
to the assignee the amount so assigned upon sur-
render of the original assignment. Any money
earned by the assignor or seller in excess of any
assignment or sale of wages or salary shall be
paid to said assignor when due. Acts 1920, pp. 215,,
222.
CHAPTER 19.
Hotels and Inns.
§ 1770(80). Hotels and Inns required to furnish
clean bed linens. — It shall be the duty of every
hotel or inn keeper in this State covered by this
Act, to furnish clean bed linens, unused by any
other party since the last laundering thereof, on all
'beds assigned to the use of any guest or patron
of such inn or hotel. Acts 1910, p. 88.
As to the penalty for the violation of this act, see §
503 (1), P. C.
§ 1770(81). Screens. — It shall be the duty of
every hotel or inn keeper covered by this Act to-
properly screen with wire, cloth or gatize, the
doors and windows of the kitchen and dining
room, or all openings therein, in such inn or hoteL
Acts 1910, p. 88.
§ 1770(82). Closets, etc.— It shall be the duty
of every hotel or inn keeper in the hotels or inns
covered by this Act, to keep the closets toilet
rooms or privies used, in connection with such inn
or hotel, in a clean and sanitary condition. Acts
1910, p. 88.
§ 1770(83). Fire escapes. — Every hotel or inn
of the class herein covered, that is three stories
in height or over, shall be provided with a fire es-
cape on the outside of such building connecting
on each floor above the first, and accessible to the
occupants of all floors albove the first, and said
fire escape shall be guarded and protected in such
way that said guest or patrons of said hotel or inn
may have reasonable means of escape in case of
fire. Acts 1910, p. 88.
§ 1770(84). Hotels and inns included.— The
hotels or inns covered by this Act shall only in-
clude those hotels or inns charging its patrons or
guests two dollars per day or upwards. Acts
1910, p. 88.
TITLE THIRTEENTH.
Regulations for Particular Branches of Trade
and Agriculture.
CHAPTER 1.
Inspection.
ARTICLE 1.
Inspection, Analysis, and Sale of Fertilizers.
SECTION 1.
Analysis.
§ 1771. Registration, what shall be filed with the
commissioner of agriculture. — All manufacturers,
4]
§ 1772
INSPECTION, ANALYSIS AND SALE OF FERTILIZERS
§ 1773
jobbers, and manipulators of commercial fertiliz-
ers and fertilizer material to be used in the
manufacture of the same, who may desire to sell
or offer for sale in the State of Georgia such fer-
tilizers and fertilizer materials, shall first file with
the commissioner of agriculture of the State of
Georgia, upon forms furnished by said commis-
sioner, the name of each brand of fertilizers, acid
phosphates, fertilizer materials, or chemicals,
which they may desire to sell in said State, either
by themselves or their agents, together with the
name and address of the manufacturer or manipu-
lator, and also the guaranteed analysis thereof,
stating the sources from which the phosphoric
acid, nitrogen, and potash are derived; and if the
same fertilizer is sold under a different name or
names, said fact shall be so stated, and the differ-
ent brands which are identical shall be named.
Acts 1897, p. 115; 1898, pp. 99, 100; 1901, p. 65;
1903, p. 94; §§ 1794, 2068(6); Penal Code, § 643.
See §§ 1794, 2068.
As to punishment for illegal sale of fertilizers, see P. C,
§ 643.
In General. — The act of 1901 (this and the following sec-
tions) respecting the sale and manufacture of fertilizers is
by its terms exhaustive and supersedes former regulations
(except those expressly presumed on the subject covered by
its provisions). Grimer v. Baggs, 4 Ga. App. 232, 61 S. E-
147. This decision was prior to the passage of the act
of 1911 codified as sections 1778 (1) to 1778 (5). Ed. Note.
This and Sections 1773 (l)-(5) Construed Together.— The
act of 1911 [§§ 1778 (1) to 1778 (5)] must be construed with
this and the following sections, and if any conflict exists
the act of 1911 must prevail. Terry v. Swift & Co., 21 Ga
App. 431, 433, 94 S. E. 658.
Does Not Apply to Sales in Bulk. — Upon a comparison of
§ 1796 and this section it appears that the proper construc-
tion to give the latter is, that it does not apply to fertili-
zers or fertilizer material sold in bulk to persons desiring to
purchase the same for their own use on their own land.
Codman v. Roberds, 27 Ga. App. 559, 109 S. E. 536. See
note of this case under section 1772.
In the sale of fertilizer material in bulk it is not neces-
sary for the seller to comply with the provisions of §§
1771 and 1772, but such materials may be sold in bulk to
persons who purchase the same for use on their own lands,
upon a compliance with the provisions of §§ 1796 to 1799
inclusive. Bartow Guano Co. v. Adair, 29 Ga. App. 644,
116 S. E. 342.
Fertilizer Must Be Registered. — Where a contract for
the purchase of fertilizers specifically provides from what
source the phosphoric acid, the nitrogen, or the potash is
to be derived, and where the fertilizer is furnished in ac-
cordance with such special order, such contract of sale
would be void unless the fertilizers so furnished had been
registered as provided by this section. The fact that such
fertilizers were furnished as ordered under a name or brand
properly registered with the Commissioner of Agriculture,
but which registration gives a source other than the ac
tual one from which the phosphoric acid, nitrogen, or potash
is derived, would not operate to change the rule above
stated. Hodges v. Montezuma Fertilizer Co., 150 Ga. 248.
103 S. E. 231.
Burden of Proof in suit for purchase price of fertilizer,
where defense is that seller failed to comply with this sec-
tion is upon defendant. Bartow Guano Co. v. Adair, 29 Ga.
App. 644, 1.16 S. E. 342.
§ 1772. Guaranteed analysis on packages. — All
persons, companies, manufacturers, dealers, or
agents, before selling or offering for sale in this
State any commercial fertilizer or fertilizer ma-
terial, shall brand or attach to each bag, barrel or
package, the weight of the package, the name .and
address of the manufacturer, and the guaranteed
analysis of the fertilizer, giving the valuable con-
stituents of the fertilizer' in minimum percentages
only. These items only shall be branded or
printed on the sacks or packages in the following
order:
1. Weight of package in pounds.
2. Brand name, or trade-mark.
3. Guaranteed analysis.
4. Available phosphoric acid, per cent.
5. Total nitrogen per cent.
6. Water soluble nitrogen per cent.
7. Potash per cent.
8. Name and address of manufacturer.
In bone meal, tankage or other products where
the phosphoric acid is not available to laboratory
methods, but becomes available on the decomposi-
tion of the product in the soil, the phosphoric
acid shall be claimed as total phosphoric acid un-
less it be desired to claim available phosphoric
acid also, in which latter case the guarantee must
take the form above set forth. In the case of
bone meal, and tankage, manufacturers may brand
on the bags or packages information showing the
fineness of the product, providing it takes a form
approved by the Commissioner of Agriculture.
Acts 1924, p. 99.
The purpose of this section, and of the act of 1911, §§
1778 (1) to 1778 (5) is to inform the purchaser of the per-
centage of phosphoric acid, nitrogen, and potash, or other
components, in each sack. It is well known that these
ingredients are used for different purposes in the fertiliza-
tion of crops. Terry v. Swift & Co., 21 Ga. App. 431, 434,
94 S. E. 658.
Inspection of Subsamples. — The laws of this State, re-
lating to the inspection of fertilizers and fertilizer ma-
terials, do not require the subsamples, taken by the in-
spectors from each separate lot inspected, analyzed; but
only require an analysis of a sample made up or taken
from all samples drawn by inspectors from different lots of
the same brand. Swift & Co. v. Duncan, 154 Ga. 487, 114
S. E. 897.
Sale in Bulk. — A charge that "if the sale was in bulk to
one desiring to use it for his own use on his own land, the
seller was under no obligation to brand the potash in ac-
cordance with the provisions of this section" is correct.
Codman v. Roberds, 27 Ga. App. 559, 109 S. E- 536. See note
of this case under § 1771.
Effect of Non Compliance on Contracts and Promissory
Notes. — See notes to § 1794.
Burden of proof is on defendant that seller has failed to
comply with this section. Bartow Guano Co. v. Adair, 29
Ga. App. 644, 116 S. E. 342.
§ 1773. (§ 1553.) Copy as evidence. — A copy of
the official analysis of any fertilizer or chemical,
under seal of the department of agriculture, shall
be admissible as evidence in any of the courts of
the State, on the trial of any issue involving the
merits of said fertilizer.
See §§ 1783, 5798.
Time of Analysis. — After a brand is registered it can
not be changed, hence, a certified copy of an analysis,
made at any time by the State chemist, is admissible in
evidence. Arlington Oil, etc., Co. v. Swann, 13 Ga. App.
562, 79 S. E. 476.
From What Sample Analysis Taken. — The analysis of :i
composite sample is the official analysis referred to in this
section and § 1783; and it is not essential that it should ap-
pear that the analysis was made from a sample taken from
the particular lot of fertilizer for the purchase-price of
which recovery is sought. Swift & Co. v. Duncan, 154 Ga.
487, 114 S. E. 897; Arlington Oil, etc., Co. v. Swann, 13
Ga. App. 562, 79 S. E. 476.
Analysis of Record Official. — The court did not err ;>.i
admitting in evidence the certified copy of the analysis oi
the cottonseed meal, since any analysis which is of record
in the agricultural department is prima facie official, and
the evidence in this case in fact showed that it was made
from samples furnished by an inspector of fertilizers.
Boston Oil, etc., Co. v. Williams, 21 Ga'. App. 685, 94 S.
E. 1041. See also Jones v. Cordele Guano Co., 90 Ga. 14.
20 S. E- 265.
Corrected Analysis Allowed. — After a sample of fertilizer
drawn by the official inspector has been filed with the
Commissioner of Agriculture and has been analyzed by the
State Chemist and certified to the Commissioner of Asti-
[415]
§ 1774
INSPECTION, ANALYSIS AND SALE OF FERTILIZERS
1778
culture and by him recorded and entered as official, the
State Commissioner of Agriculture has the right and power
to make, through the State Chemist, another or corrected
analysis from the same sample, which, upon proper certifi-
cation, is admissible as evidence in the courts of this State
on the trial of any issue involving the merits of said
fertilizer. Hodges v. Montezuma Fertilizer Co., 150 Ga.
248, 103 S. E. 231.
Section Applies to Cottonseed Meal. — Since cottonseed
meal is a commercial fertilizer and fertilizer material, the
provisions of this section are applicable to a suit involving
the merits of cottonseed meal as well as to a suit involv-
ing the merits of any other fertilizer material or com-
mercial fertilizer. Boston Oil, etc., Co. v. Williams, 21
Ga. App. 685, 94 S. E. 1041.
§ 1774. Commercial value only, collectable. — If
any commercial fertilizer or fertilizer material of-
fered for sale in this State shall, upon official
analysis, prove deficient in any of its ingredients
as guaranteed and 'branded upon the sacks or
packages, and if by reason of such deficiency the
commercial value thereof shall fall three per cent,
below the guaranteed total commercial value of
such fertilizer or fertilizer material, then any note
or obligation given in payment therefor shall be
collectable by law only for the amount of actual
total commercial value as ascertained by said of-
ficial analysis, and the person or corporation sell-
ing the same shall be liable to consumer by reason
of such deficiency for such damages, if any, as
may be proved and obtained by him on trial be-
fore a jury in any court of competent jurisdiction
in this State.
As to failure of consideration generally, see § 4250. As to
recoupment, see § 4350.
A variance of less than three per cent, is immaterial.
Cooper v. National Fertilizer Co., 132 Ga. 529, 64 S. FJ.
650.
The burden of proof upon defendant in suit for purchase
price to show section not complied with. Bartow Guana
Co. v. Adair, 29 Ga. App. 644, 116 S. E- 342.
It is incumbent upon the defendant to establish (where
the defense is based on this section) that fertilizer
was deficient in some or all of its ingredients as guaran-
teed and printed on the sacks, and that by reason of
the deficiency the commercial value thereof had fallen three
per cent, below its total commercial value. Cooper v. Na-
tional Fertilizer Co., 132 Ga. 529, 64 S. E. 650. This de-
ficiency in the commercial value of the fertilizer must be
determined by a comparison with the official analysis of the
State chemist. Keaton v. Birmingham Fertilizer Co., 13
Ga. App. 645, 79 S. E. 754.
§ 1775. Constituents. — The words "high grade"
shall not appear upon any bag or other package of
any complete fertilizer which complete fertilizer
contains by its guaranteed analysis less than ten
per cent, available phosphoric acid, 1.65 per cent,
nitrogen (equivalent to 2 per cent, of ammonia
and 2 per cent, of potash), or a grade or analysis
of equal total commercial value; the word "stand-
ard" shall not appear upon any Ibag or other
package of any complete fertilizer which contains
by its guaranteed, analysis less than 8 per cent,
available phosphoric acid, 1.65 per cent, nitrogen
(equivalent to 2 per cent, ammonia), and 2 per
cent, potash, or a grade or analysis of equal total
commerical value; the words "high grade" shall
not appear upon any bag or other package of any
acid phosphate with potash which shall contain by
its guaranteed analysis less than 13 per cent, avail-
able phophoric acid and 1 per cent, of potash, or a
grade or analysis of equal total commercial value;
the word "standard" shall not appear upon any
bag or other package of any acid phosphate with
potash which shall contain by its guaranteed
analysis less than 11 per cent, available phosphoric
acid and 1 per cent, potash, or a grade or analysis
of equal total commercial value; the words "high
grade" shall not appear upon any bag or other
package of any plain acid phosphate which shall
contain by its guaranteed analysis less than 14 per
cent, available phosphoric acid; and the word
"standard" shall not appear upon any bag or other
package of any plain acid phosphate which shall
contain by its guaranteed analysis less than 12 per
cent, available phosphoric acid. No complete
fertilizer, acid phosphate with potash, acid phos-
phate with nitrogen, or plain acid phosphate shall
be offered for sale in this State which contains less
than 12 per cent, of total plant food, namely:
available phosphoric acid nitrogen, when calcu-
lated as ammonia and potash, either singly or in
combination: Provided, that in mixed fertilizers
there shall not ibe claimed, less than 1 per cent, of
potash and 0.82 per cent, nitrogen when one or
both are present in the same mixture.
§ 1776. Wet and unsalable. — No commercial
fertilizer or fertilizer material shall be offered for
sale in this State which contains such an amount
of water as to render the handling or manipulation,
of such fertilizer or fertilizer material difficult, or
to cause the clogging of fertilizer distributors by
reason of its bad mechanical condition; such wet
or bad mechanical condition of any fertilizer shall
be carefully observed by all fertilizer inspectors at
the time of drawing their samples, and be reported
along with the sample to the commissioner of
agriculture, who, if he (or in his absence the State
chemist) confirms the opinion of the inspector
shall forbid the sale of that lot so inspected.
As to manner of making inspection, see § 1781.
Section as Defense to Promissory Note. — In order for
a purchaser to avail himself of this section as a defense
to a promissory note it must be shown that the fertilizer
was inspected and found in such wet and unsalable con-
dition and that its sale had been forbidden by the com-
missioner of agriculture. Bearden v. First Nat. Bank, 29
Ga. App. 129, 114 S. E. 78.
§ 1777. Grade not to be lowered; brand name or
trade-mark. — The guaranteed analysis of each and
every brand of fertilizer or fertilizer material must,
without exception, remain uniform throughout the
■fiscal year for which it is registered, and in no case,
even at subsequent registration, shall the grade Ibe
lowered, although the proportion of the available
constituents may be changed so that the decrease of
one constituent may be compensated for in value
by the increase of the other or others. Such pro-
posed change must first receive the approval of
the commissioner of agriculture. A brand name,
or trade-mark registered by one manufac-
turer shall not be entitled to registration by an-
other, and the manufacturer having first registered
and used the said brand name, and, or trade-mark,
shall be entitled to it, even should said brand
name, and, or trade-mark, not be offered, for cur-
rent registration at the time. Nothing in this
section shall be construed as debarring the right of
any manufacturer to establish his ownership in,
and prior right of registration of, any brand
name and, or trade-mark, whether said brand
name and, or trade-mark, had been previously re-
gistered or not.
§ 1778. Pulverized leather. — No person, com-
pany, dealer, or agents shall sell, expose, or offer
for sale in this State any pulverized leather, raw,
[416]
§ 1778(1)
INSPECTION, ANALYSIS AND SALE OF FERTILIZER
§ 1778(7)
steamed, roasted, or in any other form, either as a
fertilizer or fertilizer material, or as a constituent
of fertilizers, without first making full and explicit
statement of the fact in registration with the com-
missioner of agriculture, and furnishing satisfac-
tory proof that the nitrogen is sufficiently available
and valuable for the purpose for which sold.
§ 1778(1). Fertilizers must be tagged showing
sources and ingredients. — All commercial fertili-
zers containing or which are designed to develop,
as plant food, phosphoric acid, potash and nitrogen
which are sold or offered for sale in this State,
shall, in addition to the present provisions and re-
quirements of the laws of Georgia, have plainly-
marked or branded, by attaching a tag upon each
sack or package thereof the sources and ingre-
dients from which the available phosphoric acid,
potash and nitrogen respectively is generated and
obtained. Acts 1911, p. 172.
As to effect, on notes and contracts, of failure to com-
ply with law, see note to § 1794.
Admissibility of Registered Analysis. — If a brand has
been registered with the commissioner of agriculture it
will be presumed that all fertilizer of that brand, main-
tains substantially the same analysis and it is admissible
in evidence whether taken from samples of the particular
fertilizer in question or not. Arlington, etc. v. Swann, 13
Ga. 562, 79 S. E. 488; Douglass v. Va.-Car., etc., Co., 31
Ga. App. 734, 122 S. E. 82.
Interstate Contract. — -The terms of this act confine it lo
sales made in this State. Therefore where a farmer orders
fertilizer for his' own use by a letter written in Georgia,
which is shipped to Ga., and thereupon notes for the price
are executed in Georgia and sent to South Carolina the
sale is a South Carolina contract to which this act has no
application. This is true notwithstanding that the seller
invites such contract by writing describing such fertilizer.
An offer might be so made as to allow the offeree to de-
termine the particular quality and quantity in his accept-
ance, thus constituting a valid Georgia contract. What
acts are conduct constituting a definite proposal upon
which such a binding contract may be predicated depends
upon the particular transaction. Newton v. Coe, etc., 20
Ga. App. 736, 93 S. E. 235.
Cottonseed meal is a commercial fertilizer material with-
in the meaning of this act. Williams v. Boston, etc., 19
Ga. App. 190; 21 Ga. App. 685, 94 S. E. 1041.
Sufficiency of charge. See Codman v. Roberds, 27 Ga.
App. 559, 109 S. E. 536.
Evidence held sufficient to support verdict. Douglas v.
Va.-Car, etc., Co., 31 Ga. App. 734, 123 S. E- 82.
§ 1778(2). Vendor liable in damages, when. —
If any commercial fertilizer, or fertilizer material
sold in this State shall prove deficient in any of its
ingredients as guaranteed or branded by attaching
a tag or tags upon the sacks or packages contain-
ing the same and if, by reason of such deficiency,
the commercial value of such fertilizers shall fall
more than three per cent, below the guaranteed
commercial value of such fertilizers or fertilizer
material, then the vendor or vendors of such com-
mercial fertilizer or fertilizers shall be liable in
damages to the purchaser or purchasers thereof in
a sum of twenty-five per cent, of the purchase
price plus the shortage of such commercial fertili-
zer or fertilizers. Acts 1911, p. 172.
Liability of Manufacturer to Agent. — Where one acting
as agent for a vendor sent orders to the latter for the ship-
ment of certain fertilizer to a named purchaser, the agent
could not maintain a suit against his principal for the
penalties and damages provided in this section and §
1778 (3), because of an inferiority in the fertilizer or a de-
ficiency in the ingredients stamped upon the sacks in the
guaranteed analysis. Oliver-McDonald Co. v. Swift & Co.,
159 Ga. 1, 124 S. E. 525.
Amount Seller May Collect.— If the actual value falls 3
per cent below the guaranteed value the seller can recover
only the actual value and is liable to the extent of 25 per
cent of the purchased price. Arlington, etc. v. Swann, 13
Ga. App. 562, 78 S. E. 476. See note under § 1778 (3).
§ 1778(3). False or incorrect analysis, vendors
liable in damages. — Any manufacturer, manipu-
lator, dealer or vendor of commercial fertilizers in
this State, who publishes by branding or by
attaching a tag or tags upon the sacks or packages
of fertilizer a false or incorrect analysis of the com-
ponents and ingredients thereof shall be liable in
law to any and every purchaser of such falsely
and correctly branded or tagged, fertilizer in a
sum of twenty-five per cent, of the purchase price
plus the shortage of such commercial fertilizer.
Acts 1911, pp. 172, 173.
What Constitutes Publication of False Analysis. — The
penalty provided by this section is for publishing a false
analysis, and one penalty only, plus the shortage, is recover-
able by a purchaser for a false publication of the analysis
on any one grade of a fertilizer which he has purchased.
Terry v. Swift & Co., 21 Ga. App. 431, 94 S. E. 658.
It is the false or incorrect analysis branded on the pack-
age of fertilizer and the 10 per cent deficiency below the
guaranteed analysis in any one component or ingredient
that constitutes the false branding. Terry v. Swift & Co.,
21 Ga. App. 431, 94 S. E. 658.
Amount of Damages Collectable. — Where the purchaser's
note stipulates that the seller declines to warrant the
quality of fertilizer, but only warrants that the laws ol
the state have been complied with, the purchaser can re-
cover no damages other than provided by this act because
of inferior quality. Arlington v. Swann, 13 Ga. App. 562,
78 S. E. 476. See note under § 1778 (2).
§ 1778(4). What is false branding. — A defi-
ciency of more than ten per cent, below the guaran-
teed analysis of the fertilizers as published and
branded or tagged on the sacks or packages there-
of shall b,e held and declared by the courts of this
State to constitute a false and incorrect publishing,
branding or tagging within the intent, purpose and
meaning of this Act. Acts 1911, pp. 172, 173.
§ 1778(5). This law supplements old law. — This
Act shall be deemed, held, and construed to be sup-
plemental and additional to the existing laws of
this State regulating and. effecting the sale of
commercial fertilizers, and not as conflicting with
or repealing any of said laws. Acts 1911, pp. 172,
173.
This Law Controls in Case of Conflict. — This act must
be construed with the law as embodied in §§ 1771-1775, and
if any conflict exists this act must prevail. Terry v.
Swift & Co., 21 Ga. App. 431, 94 S. E. 658.
§ 1778(6). Certain fillers for fertilizers pro-
hibited.— It shall be unlawful for any manufac-
turer or dealer, or other person to manufacture,
sell or offer for sale in the State of Georgia any
commerical fertilizer containing any pyrites cin-
ders, coal cinders, or any injurious or deleterious
filler. Acts 1912, pp. Ill, 112.
As to the penalty for the violation of this act, see 5
643 (1), P. C.
§ 1778(7). Contents must be printed on bag or
tag. — Everjr manufacturer, mixer or dealer in com-
mercial fertilizers shall be required to print on his
bags or tags the total number of pounds of avail-
able plant food guaranteed and contained in each
bag, the total number of pounds of filler contained
in each bag "worthless as a fertilizer" to be printed
after the word "filler" and the total number of
pounds of all other combined materials contained
in said bags. This Act is not intended to repeal or
modify the provisions of §§ 1778(l)-1778(5) re-
quiring all sources of plant food to be stated on
bags or tags. Acts 1912, pp. 111. 112.
Ga. Code— 14
[417]
§ 1779
INSPECTORS, THEIR DUTIES AND COMPENSATION
§ 1780
SECTION 2.
Cottonseed Meal, Inspection and Analysis of.
§ 1779. Cottonseed meal, inspection and analysis
of.— It shall not be lawful for any person or persons
to offer for sale in this State any cottonseed meal
until the same shall have been inspected as now re-
quired by law in the matter of all fertilizers and
chemicals for manufacturing or composting pur-
poses, nor shall it be lawful to offer such cotton-
seed meal for sale in this State if it be shown iby the
official analysis that the same contains less than
6.18 per cent, of nitrogen, equivalent to 7^2 per
cent, of ammonia; Provided, that the provisions of
this section as to the per centum mentioned in this
section shall not apply to meal manufactured from
Sea Island cottonseed, but the commissioner of
agriculture shall fix and make public a minimum
per centum which shall control as to the cotton-
seed referred to in this proviso: Provided further,
that if any cottonseed meal shall not analyze up to
the required per centum of nitrogen, the same may
be offered for sale as a second-class meal, provided
the analysis be made known to the purchaser and
stamped on the sack. There shall be branched
upon, or attached to each sack, barrel, or package
of cottonseed meal offered for sale in this State,
the guaranteed analysis and the number of pounds
net in each sack, barrel, or package.
Editor's Note.— See, § 1772 and notes thereto.
It would seem that some of this section is superseded by
§§ 1779 (1) to 1779 (3) which were codified from the act of
1910.
Any person violating the provisions of law governing the
inspection, analysis and sale of cottonseed meal shall be
guilty of a misdemeanor, P. C, § 645.
§ 1779(1). How branded. — All manufactures,
dealers or manipulators who shall offer any cotton
seed meal for sale in this State, either as a fertilizer
or as a feed stuff, shall brand upon or attach to the
packages in which such meal is offered for sale,
the grade or quality of the same. Acts 1910, p. 82.
As to the penalty for the violation of this act, see § 6<*?
(1), P. C.
• § 1779(2). "High grade," "standard" and "low
grade." — There shall be three grades of cotton
seed meal, known as High Grade, Standard Grade,
and Low Grade. High Grade meal must con-
tain 6.60 per cent, of nitrogen (equivalent to eight
per cent, of ammonia) as a minimum before it
shall be entitled to 'bear the brand of High Grade.
Standard meal must contain six and 18/100 per
cent, nitrogen (equivalent to 7>4 per cent, of
ammonia) as a minimum before it shall be entitled
to the brand of Standard Grade. All cotton seed
meals containing less titan six and 18/100 per cent,
of nitrogen (equivalent to 7^2 per cent, of am-
mo'nia), shall be branded Low Grade before being
offered for sale in this State. Provided, That
Low Grade shall not contain less than six (6) per
cent, of ammonia, and provided, further, that all
meal made from "Sea Island Cotton" shall be
branded "Sea Island Cotton Seed Meal," and the
guaranteed analysis shall not be less than four
and one-half (4^) per cent, of ammonia, and the
same shall be printed upon the package.
ThQ. words High Grade, Standard Grade and
Low £rade, when branded upon or attached to the
package containing the cotton seed meal shall be
printed just above all other guarantees or de-
scriptions of said meal, and in type larger than
any other descriptive words or matter branded
upon or attached to such package. Acts 1910, p.
82.
§ 1779(3). Duty of commissioner of agriculture.
— It shall (be the duty of the Commissioner of
Agriculture to take all steps necessary to make
this Act effective. Acts 1910, pp. 82, 83.
SECTION 3.
Inspectors, Their Duties and Compensation.
§ 1780. Inspectors, their duties and compensa-
tion.— The Commissioner of Agriculture shall ap-
point not exceedng six general Inspectors, who
shall be known as State Inspectors, and who may
be sent from point to point, or may be located in
the main centers of the State, in the discretion of
the Commissioner, such Inspectors being subject
at all times to his direction. These Inspectors
shall receive a salary of twelve hundred dollars
per year. It shall be their duty to inspect all
fertilizers, acid phosphates, chemicals, cotton seed
meal or other fertilizing material that may be
found at any point within the limits of the State,
and shall see that all fertilizers and fertilizer
materials are properly tagged. In addition to these
duties such Inspectors shall inspect weights and
measures, food and feed, and oils when directed to
do so, and perform such other duties as may be
assigned them by the Commissioner of Agricul-
ture. The Commissioner shall also have authority
to employ such additional inspectors during the
busy season, not to exceed forty in one year, as in
his judgment may be necessary. These additional
inspectors shall only be employed when actually
needed, the term of service not to exceed four
months during any one year. They shall inspect
fertilizers, acid phosphates, chemicals, cotton seed
meal and other fertilizer material wherever found
within the limits of the State, and see that all,
fertilizers and fertilizer materials are properly
tagged, and perform such other 'duties as may be
assigned them by the Commissioner, and go to
any point when so directed by him. The greatest
compensation that these short term inspectors
shall receive shall be at the rate of eighty-three
and one-third dollars per month. In addition to
his salary any general or short term Inspector
may be paid actual transportation expenses and
hotel Ibill incurred by him when absent from his
home on duty for the State, the hotel bill not to
exceed two and one-half dollars per day. All In-
spectors mentioned in this Section shall be re-
quired to devote their entire time to the service
of the State during the period of their employ-
ment. Each Inspector shall be commissioned for
a term of two years subject to the right of the
Commissioner of Agriculture at any time to limit
and designate the number of months any short
term Inspector shall be employed within the pe-
riod named in the commission, the Commissioner
also having the right to discharge any Inspector
for incompetence, neglect of duty, or malfeasance
in office. Acts 1912, p. 52.
Editor's Note. — This section has been greatly changed by
(acts 1912, p. 52) since it appeared in the
still appoints the inspector
the act
code of
of 1912
1910. The
commissioner
[418]
1781
SAMPLES
§ 1788
but the number is limited to six state inspectors who re-
ceive a salary of twelve hundred dollars a year, this num-
ber may be increased during the busy season to not ex-
ceeding forty, these short time inspectors are paid eighty
three and a third dollars a month. The duties of the state
inspector are the same as were set out in . the code of
1910 plus the duty to inspect weights and measures, etc.,
when directed to do so and perform such other duties as
may be required. The inspectors are allowed their trans-
portation expenses and hotel bill.
§ 1781. Samples, inspection and report. — Each
of the inspectors of fertilizers shall be provided
with bottles of not less than eight (8) ounce ca-
pacity in which to place samples of fertilizers and
fertilizer materials drawn by him, and it shall be
the duty of each inspector of fertilizers to draw,
with such an instrument as shall secure a core
from the entire length of the package, such
sample of fertilizers and fertilizer materials as he
may be directed by the commissioner of agricul-
ture to inspect, or that he may find uninspected;
and in the performance of his duty he shall care-
fully draw samples as follows: In lots of ten
packages or less, from every package; in lots of
10 to 100 packages, from not less than 10 packages;
in lots of 100 packages and over, from not less
than 10 per cent, of the the entire number; and
after thoroughly mixing the samples so drawn,
he shall, by the method known as "quartering,"
draw from such thoroughly mixed samples two
subsamples, and with them fill two sample bot-
tles, and shall plainly .write on a label on said
bottles the number of said samples, and shall also
write on the label on one only of said bottles the
name of the fertilizer, acid phosphate, or other
fertilizer material, also the name of the manufac-
turers. He shall then seal both of said, bottles,
and shall forward to the commissioner of agri-
culture the said samples so drawn by him, stat-
ing the numbers of sacks from which the sample
was drawn, and a full report of the inspection
written on a form prescribed by the commis-
sioner of agriculture, which report must be num-
bered to agree with the numiber of the bottle;
and in said report shall be given the name of
the fertilizer, or fertilizer material, the name of
the manufacturer, the guaranteed analysis, the
place where inspected, and the date of inspection,
and name of inspector; and it shall be the duty
of said inspectors to keep a complete' record of
all inspections made by them on forms pre-
scribed by the commissioner of agriculture.
As to wet and unsalable fertilizer, see § 1776.
§ 1782. Oath of inspectors. — Before entering
upon the discharge of their duties they shall also
take and subscribe, before some officer authorized
to administer the same, an oath to faithfully dis-
charge all duties which may be required of them
in pursuance of this Chapter.
§ 1783. State chemist's certificate. — A sample
of all fertilizers or fertilizer material, drawn by
the official inspectors and filed with the com-
missioner of agriculture, shall be marked by
number and delivered by said, commissioner of
agriculture to the State chemist, who shall make
a complete analysis of the same, and certify, un-
der the same number as marked, said analysis
to said commissioner of agriculture, which analysis
shall be recorded as official and entered opposite
the brand of fertilizers or fertilizer material which
the mark and number represent; and the said of-
ficial analysis of such fertilizer or fertilizer
material, under the seal of the commissioner of
agriculture, shall be admissible as evidence in any
of the courts of the State on the trial of any issue
involving the merits of such fertilizer or fertilizer
material.
As to copy of official analysis as evidence, see § 1773,
and notes thereto.
§ 1784. Manufacturers or manipulators. — Noth-
ing in this Chapter shall be construed to restrict
or avoid sales of acid phosphate or any other
fertilizer material to each other by importers,
manufacturers, or manipulators, who mix fertilizer
materials for sale, or as preventing the free and
unrestricted shipments of material to manufactur-
ers or manipulators who have registered their
brands as required by the provisions of this
Chapter.
SECTION 4.
Samples.
§ 1785. Purchaser may require samples to be
taken. — It shall be lawful for any purchaser of
fertilizer from any owner thereof, or agent of
such owner, to require of the person selling, and
at the time of sale or delivery, to take from each
lot of each brand sold a sample of its contents.
§ 1786. Sample, how taken and treated. — Said
sample or samples of fertilizer shall be taken in
the presence of both purchaser and seller in the
following manner: "Two cupfuls of the fertilizer
shall Ibe taken from the top and two cupfuls from
the bottom of each sack, provided there are not
more than ten sacks in the lot, but in lots of 10 to
100 sacks, from not less than 10 sacks; in lots of
100 and over, from not less than 10 per cent, of
the entire number. The samples so taken shall be
intermixed upon some surface so as not to mix
dirt or any other substance with the fertilizer.
Then from different parts of the pile small por-
tions at a time shall be scooped up in the cup and
transferred to a wide-mouthed bottle of not less
than one pint in capacity." This bottle shall now
be corked with a suitable cork. The cork must
either be pressed home flush with the mouth of
the bottle or else cut across until it is flush or
even with the mouth of the bottle. It shall then
be taken by both parties at interest to the ordinary
of the county, who shall seal the same in their
presence in the following manner: he shall com-
pletely cover the entire surface of the cork with
sealing wax, and then impress upon the molten
wax his official seal, bearing his name and the
style of his office. He shall then lable the same
with the names of the parties and of the fertilizers.
§ 1787. Ordinary's duty and fee.— The ordinary
shall safely keep said package, allowing neither
party access to the same, save as hereinafter pro-
vided. The ordinary shall receive a fee of 10
cents from the party depositing such sample for
each sample so deposited.
§ 1788. When sent to chemist for analysis.—
Should said purchaser, after having used sucl
fertilizer upon his crops, have reason to believe
from the yields thereof that said fertilizer was
totally or partially worthless, he shall notify the
[419]
§ 1789
TAGS AND REGISTRATION
§ 1794
seller, and apply to the ordinary to forward the
said sample deposited with him to the State
chemist, without stating the name of the parties,
the name of the fertilizers, or giving its guaran-
teed analysis, the cost of sending being prepaid by
the purchaser. Before forwarding samples to the
State chemist for analysis, the ordinary shall take
the affidavit of the purchaser that he has gathered
his corp and believes from the yield thereof that
the fertilizer used was worthless, or partially
worthless. The ordinary shall notify the State
chemist at the same time that he forwards the
sample that he has taken and filed such written
affidavit of the purchaser.
§ 1789. Duty of chemist. — It shall be the duty
of the State chemist to analyze and send, a copy
of the result to the ordinary.
§ 1790. Legal effect of chemist's statement. —
Should the analysis show that the fertilizer comes
up to the guaranteed analysis upon which it is
sold, then the statement so sent by the State
chemist shall be conclusive evidence against a
plea of partial or total failure of consideration.
But should the analysis show that such fertilizer
does not come up to the guaranteed analysis,
then the sale shall be illegal, null and void, and
when suit is brought upon any evidence of in-
debtedness given for such fertilizer, the statement
of such State chemist so transmitted to the ordi-
nary shall be conclusive evidence of the facts,
whether such evidence of indebtedness is held by
an innocent third party or not.
§ 1791. Some other chemist may be chosen. —
In lieu of the State chemist, should the parties to
the contract agree on some other chemist to
make the analysis, all the provisions of this
Chapter shall apply to his analysis and report to
the ordinary.
§ 1792. When seller refuses to take a sample. —
Should the seller refuse to take the sample when
so requested by the purchaser, then upon proof of
this fact the purchaser shall ibe entitled to his plea
of failure of consideration, and to support the
same by proof of the want of effect and benefit of
said fertilizer upon his crops, which proof shall be
sufficient to authorize the jury to sustain defend-
ant's plea in whole or in part, whether the suit is
brought by an innocent holder or not.
SECTION 5.
Tags and Registration.
§ 1793. Tax tags. — All manufacturers and
manipulators or agents representing them, who
have registered their brands in compliance with
this chapter, shall forward, to the Commissioner
of Agriculture a request for tax tags stating that
said tags are to be used upon brands of fertilizers
or fertilizer material registered in accordance with
this chapter, and said request shall be accompanied
with the sum of 30 cents per ton as an inspection
fee; whereupon it shall be the duty of the Com-
missioner of Agriculture to issue tags to parties
applying who shall attach a tag to each bag, barrel
or package thereof, which when attached to said
package, shall be prima facie evidence that the
chapter. Any tags left in the possession of the
manufacturer may be used for another season and
shall not be redeemed by the Department of
Agriculture. The entire amount arising from the
fee of 30 cents a ton shall be paid into the State
Treasury as rapidly as collected, and a sum which
shall not in an}r event exceed the sum of one
hundred thousand ($100,000) dollars inclusive of
the regular appropriation, or so much thereof as
may be necessary, which shall arise from two-
thirds of the 30 cents a ton fee, that is to say 20
cents a ton, shall be paid to the Department of
Agriculture for the use of the Bureau of Markets,
within said department, in furtherance of the
duties imposed upon, and the work required to be
done by, said Bureau of Markets by the provi-
sions of §§ 2141(13) — 2141(15). The payments to
be made the Department of Agriculture for the
use of the Bureau of Markets shall be paid on the
warrant of the Governor from time to time as
needed. The balance all told shall remain in the
State Treasury for other purposes. Acts 1921, pp.
100, 191.
See notes to § 1794.
As to tax on cotton seed meal, see § 2114.
Editor's Note. — The amendment to this section (Acts
1921, pp. 100, 191) increased the inspection fee from ten
to thirty cents and provided that if there were extra tags
left over they could be used the next year. The act also
added the latter part of the section, beginning with the
words "The entire amount arising," which provides for
disbursements.
Purpose of Section. — This section has a dual purpose:
(1) to raise revenue to cover the costs of inspection; (2)
to prescribe a rule of evidence under which it may be
shown prima facie that the seller has complied with the
requirements of law. Planters Fertilizer Co. v. Wheeler,
142 Ga. 153, 82 S. F. 564.
This section is purely a revenue measure. The law
recognizes the fact that the tags may become detached
from the packages in the ordinary course of trade and
shipment. Ritchey v. Armour Fertilizer Works, 18 Ga.
App. 124, 88 S. F. 916.
§ 1793(1). Tags after 1922. — All orders (for
tags) after 1922 (are) to be filled with tags that do
not bear any date on the face. Acts 1921, pp. 190,
192.
§ 1794. Sale without registration illegal.— It
shall not be lawful for any manufacturer or com-
pany, either by themselves or their agents, to offer
for sale in this State any fertilizer or fertilizer
material that has not been registered with the
commissioner of agriculture as required by this
Chapter. The fact that the purchaser waives the
inspection and analysis thereof shall be no protec-
tion to said party selling or offering the same for
sale.
As to right to waive inspection, see § 10. As to regis-
tration, see § 1771. As to liability for publishing false
analysis, see §§ 1778 (1) et seq.
Scope of Section. — The provisions of this section do not
extend to the tagging of commercial fertilizers. Fletcher
v. Armour Fertilizer Co., 18 Ga. App. 139, 88 S. F- 916;
Hillis v. Comer & Co., 13 Ga. App. 214, 78 S. F- 1107.
The provisions of this section refer to the failure to reg-
ister the fertilizer with the commissioner of agriculture,
which ' is a matter required to be performed in advance
of the issuance of the tax tags and has no reference what-
ever to tags. Planters Fertilizer Co. v. Wheeler, 142
Ga. 153, 82 S. F. 564.
Illustrations. — It has been held that the sale of fertilizer
without tags is not necessarily illegal, nor is a note given
for such sale void. Hillis v. Comer & Co., 13 Ga. App.
214, 78 S. F- 1107. And it has also been held that failure
to attach tags to each separate bag would not render con-
, , . ( , * , ■ i ■ • i tracts or notes executed for the sale of such fertilizer
seller has complied with the requirements of this I void. See Griner v. Baggs, 4 Ga. 232, 61 S. F. 147; Hil-
[ 420 ]
§ 1795
INSPECTION OF OILS
§ 1800
lis v. Comer & Co., 13 Ga. App. 214, 78 S. E- 1107; Plant-
ers Fertilizer Co. v. Wheeler, 142 Ga. 153, 82 S. Fy.564.
Nate.— And a note given for fertilizer is not void for
reason that manufacturers or sellers had not in fact paid
tax required by § 1793. Fletcher v. Armour Fertilizer
Works, 18 Ga. App. 139, 88 S. F- 916.
Also a plea setting up that the sacks containing guano
did not have attached to them the tags which § 1793 re-
quired to be used, and that by reason of the failure to
affix the tags the State was being defrauded of its reve-
nue, and that for that reason the contract was void, con-
stitutes no defense to an action upon the note. Ritchey
v. Armour Fertilizer Works, 18 Ga. App. 124, 88 S. F.
916.
But in International Agri. Corp. v. Spencer, 17 Ga. App.
649, 87 S. F. HOI, it was held that, it appearing from
the record that the consideration of a promissory note
was the sale of certain property alleged to be commercial
fertilizer, contained in sacks which bore no marks in ac-
cordance with the mandatory provisions of § 1772, the sale
and contract evidenced by the note was wholly illegal,
and the court did not err in holding the contract sued
upon to be void and unenforceable, and in directing a
verdict for the defendant. And the maker is not es-
topped from setting up his defense because the note itself
declares that the fertilizer has been inspected, etc., ac-
cording to law. And this is true although suit was brought
on the note by an innocent holder for value.
Same — Under the Bulk Sales Law. — See note to § 1796.
SECTION 6.
Expenses of Inspection.
§ 1795. Commissioner's duty as to collections. —
It shall be the dut}^ of the Commissioner of
Agriculture to 'keep a correct account of mone)'-
received from the inspection of fertilizers and pay
same into treasury from day to day as received,
and the Commissioner of Agriculture shall draw
warrants on the treasury against said funds from
time to time for expenses and salaries of inspectors
and for tags and bottles used in making such in-
spections, and the materials used in recording same,
and for postage and sending out bulletins pertain-
ing to fertilizers, and other expenses incident to
the inspection of fertilizers. The treasurer shall
honor all warrants drawn Iby the Commissioner
of Agriculture for salaries and expenses above
mentioned, and all warrants drawn by the Gover-
nor for the payment of money due the several Dis-
trict Agricultural and Industrial Schools, as pro-
vided by law, and. charge the same against the
funds derived from the inspection of fertilizers
and sale of tags. A sufficient sum, not to exceed
the total amount received from the inspection of
fertilizers and sale of tags, is hereby appropriated
annually for the purpose of paying salaries herein
mentioned and the amounts due the District
Agricultural Schools, as provided by law. Acts
1912, p. 56; 1913, p. 42.
Editor's Note. — This section has been amended twice since
it appeared in the Code of 1910. First, by the Acts of 1912
(Acts 1912, p. 56) which provided that the commissioner
should pay into the treasury from day to day the money
received and draw warrants against such money for ex-
penses thus changing the manner of handling the payment
of expenses; this amendment also provided that warrants
drawn by the Governor for money due the district agri-
cultural and industrial schools should be charged against
the funds derived from inspection of the fertilizers. Sec-
ond, by the Acts of 1913 (Acts 1913, p. 42) which struck
out the provision limiting expenses of materials, etc., to
five hundred dollars.
SECTION 7.
Sales in Bulk.
§ 1796. Fertilizers; sale in bulk.— It shall
be
lawful for manufacturers, jobbers, dealers, and
manipulators of commercial fertilizers and fertili-
zer material to sell or offer for sale in the State
of Georgia acid phosphate or other fertilizer ma-
terals in bulk to persons, individuals, or firms who
desire to purchase the same for their own use on
their own lands but not for sale. Acts 1903, p. 94.
Section Exhaustive. — Sections 1771 and 1772 do not apply
to sales in bulk, a compliance with the provisions of §§
1776 to 1799 is all that is required. Bartow Guano Co. v.
Adair, 29 Ga. App. 644, 646, 116 S. F- 342. See notes of
this case under §§ 1771 and 1772.
Burden of Proving Noncompliance. — In a suit by a dealei
in or manufacturer of fertilizer materials in bulk, either
upon promissory note for the purchase price or upon a
quantum valebat for the value thereof, the defense that
they were sold without a compliance with the law will fail
unless it is alleged and proved by the defendant that the
seller failed to comply with the provisions of this and the
following sections; it being the burden of the defendant to
establish a defense so made. Bartow Guano Co. v. Adair,
29 Ga. App. 644, 116 S. F. 342.
§ 1797. Inspection, etc. — The commissioner of
agriculture of this State shall have the authority
to establish such rules and regulations in regard
to the registration, inspection, sale, and analysis
of acid phosphate or other fertilizer materials, in
bulk, sold to persons, individuals, or firms who de-
sire to purchase and use the same as provided in
the preceding section, as shall not be inconsistent
with the provisions of this section, and as in his
judgment will best carry out the requirements
thereof.
§ 1798. Inspection fees. — The same inspection
fees shall be paid Iby manufacturers, dealers, job-
bers, and manipulators who sell acid phosphate or
other fertilizer materials in bulk, under this sec-
tion as apply to such goods when placed in sacks,
barrels, or boxes under the general fertilizer laws
of this State, and such inspection fees shall be
transmitted to the commissioner of agriculture at
the time notice of shipments of such acid phos-
phate or other fertilizer materials in bulk are
made to the purchaser provided for in this section.
As to inspection fees appropriated to schools, see § 1561.
§ 1799. Commissioner of agriculture to prose-
cute.— It shall be the duty of the commissioner of
agriculture to personally prosecute each and every
offender under the provisions of this Article, and
upon conviction such offenders shall be punished
as for a misdemeanor, and all fines arising there-
from shall be paid into and become a part of the
general education fund of the State.
As to educational fund, see § 1515.
ARTICLE 2.
Inspection of Oils.
§ 18CO. (§ 1579.) Appointment of inspectors;
number; compensation; records; reports. — It shall
be the duty of the commissioner of agriculture of
this State to appoint ten Inspectors of oils; pro-
vided, this Act shall not be construed to repeal
Section 1805 of the Code of Georgia, which gives
the Commissioner of Agriculture discretion to ap-
point additional Inspectors. Inspectors of oils
shall remit to the Treasurer each month, at the
time of making their monthly statements, all fees
received by them, except that they may retain as
compensation for their services the sum of ten
dollars per car for oil inspected, and for small
[421]
§ 1801
INSPECTION OF OILS
§ 1808
barrel lots inspected, they shall receive all fees re-
ceived until same exceeds ten dollars per month,
and one-half of said fees received for inspecting
small barrel lots less than car loads, thereafter,
during the same month, the total amount of com-
pensation received for inspecting oils and gaso-
line and all other services of every character, not
to exceed one hundred dollars per month. Each
Inspector shall keep a record of the amounts of
oils inspected with the name of the person, corpo-
ration or firm for whom said inspection is made,
and also all money received for said inspection,
and he shall forward monthly report on the first
day of each month to the Commissioner of Agri-
culture, and he shall at the same time forward to
the Treasurer of the State the moneys received toy
him as fees during that time, except what he is en-
titled to retain as his compensation. Said reports
shall give the name of the Inspector or Deputy
who inspected each lot of oil. Acts 1912, pp. 59, 60.
As to fees obtained from the inspection of oil appropri-
ated to schools, see § 1561. As to punishment of inspectors
for violating duties, see P. C, § 641.
Editor's Note. — This section was amended in 1912 (Acts
1912, p. 59) to its present form. As it first read it simply-
contained a provision authorizing the commissioner of rev-
enue to appoint inspectors in certain designated towns.
Now however the section gives the commissioner author-
ity to appoint ten inspectors and prescribes their duties and
salaries.
Constitutionality — Interstate and Intrastate Commerce. —
This and the following sections providing for the inspec-
tion of oils, and fixing the fees therefore is a revenue stat-
ute, and unconstitutional, as imposing a tax on interstate
commerce as applied to oils brought into the state for
sale in the original containers and so sold, but valid as to
oil imported for indefinite storage or for sale after break-
ing the original package. Texas Co. v. Brown, 266 Fed. 577.
In this case it was said that the fact that the oils must
inevitably meet the tax, unless sold in the original pack-
ages is immaterial. This is true of all general taxation.
If there is no discrimination because of their being im-
ported, they come within the taxing power of the state, be-
cause they are under its protection, as soon as they are
divested of their interstate character, which is effected either
by a sale or breaking of the original packages by the im-
porters, or by indefinite storage. — Ed. Note.
§ 1801. (§ 1580.) Terms of office and clerks,—
Each of said inspectors of oil shall hold his office
for two years from the date of his appointment,
unless sooner removed by the commissioner of
agriculture for incompetence, malfeasance, or
other sufficient cause. If any vacancy shall occur
in any of the offices of inspectors of oils, the va-
cancy shall be filled by the commissioner of ag-
riculture for the unexpired term. The said in-
spectors shall be authorized to appoint such clerks
or deputies, with consent and approval of the
commissioner of agriculture, as they may find
requisite to the perfect carrying out of the laws of
this State in reference to the inspection of oils, but
each inspector shall be responsible for the perfect
and proper performance of all the duties of his of-
fice, and shall pay his clerk or deputy out of the
compensation provided for himself.
An oil inspector is a public officer and where he is ap-
pointed for the full term of two years, he can not be re-
moved except upon cause shown, with notice and opportu-
nity to be heard. Ledbetter v. Reese, 148 Ga. 633, 97 S.
F,. 669.
§ 1802. (§ 1581.) Board of inspectors. — Each
of said ten inspectors of oil, immediately after his
appointment and before entering upon his duty as
inspector, shall give bond in an amount to be fixed
by the commissioner of agriculture. Said bond
shall be conditioned for the faithful and prompt
accounting with the treasurer of the State for all
moneys received by him and his deputies as fees
for inspecting illuminating oils and other fluids,
that shall be paid into the treasury. This bond
shall Ibe made payable to the Governor and shall
be signed by the said inspector and sureties, and.
approved by the commissioner of agriculture.
§ 1803. (§ 1582.) Compensation. — Repealed by
Acts 1912, pp. 59, 61.
§ 1804. (§ 1583.) Fees. _ The following shall
be the legal schedule of fees for official inspec-
tion of oils in this State: For inspecting lots of
four hundred gallons and upwards, one half cent
per gallon; for inspecting in quantities of more
than two hundred and less than four hundred gal-
lons, one cent per gallon; for inspecting in quanti-
ties of less than two hundred gallons, one and
one half cents per gallon. There shall be no dif-
ference of charges in cases where the oil inspected
is in barrels from charges where the oil is in bulk.
Acts 1890-1, p. 140.
§ 1805. (§ 1584.) Additional inspectors. — The
commissioner of agriculture shall appoint inspec-
tors at such other places in this State, in addition
to the ten provided for, as in his judgment may be
proper and necessary to insure the inspection of
oils throughout the State. These additional in-
spectors may be appointed at any time when the
commissioner of agriculture shall find that a neces-
sity for said inspectors, or any of them, exists;
they shall hold their office for the same time, and
subject to the same conditions and duties, as in-
spectors hereinbefore provided for: Provided, that
the compensation and bond of said inspectors
shall be fixed in the same manner as in case of
the ten inspectors provided for.
§ 1806. (§ 1585.) Territory of inspectors. —
Each of the said inspectors appointed under the
terms of this Article shall, by themselves or their
deputies, respond to all calls and demands for the
inspection of oil from places within thirty miles of
the town or city for which they were appointed.
The mileage and traveling expenses allowed the
inspectors under this Article need not be ac-
counted for in their monthly statements, but are
in the nature of extra compensation allowed said
inspectors for making inspections. Acts 1890-1,
p. 138.
§ 1807. (§ 1586.) Inspection in bulk. — In all
cases where oil is inspected in bulk, before said
oil is put into barrels, it shall be the duty of the
inspector to either see the oil so inspected put in-
to barrels on which he has placed his official
brand, or else he shall again take samples from
among the barrels into which said bulk oil has
been unloaded before he shall place his official
brand upon said barrels. In his discretion, the of-
ficial inspector may refuse to inspect oil in bulk,
and require the owner or dealer in oils to put said
oil into barrels or other packages for retail trade,
^before he will accord it an official inspection:
Provided, always, that no official inspection of
bulk oils shall be made at any place in this State
except where said bulk oils are to be unloaded and
put in barrels or other packages for retail trade.
§ 1808. (§ 1587.) Use of official brands.— The
official brand used by the inspectors of oils shall
[ 422 ]
§ 1809
INSPECTION OF OILS
§ 1809(3)
in no case be used for branding barrels or cases of
illuminating oils by any other person than the
regularly appointed inspector, or his deputy. In
no case shall an inspector 'be a dealer in oils, or
be in the employ of a dealer in oils, or have as his
deputy any person dealing in oils or in the employ
of any person or corporation so dealing in oil.
Whenever any party desires to have oil inspected
he shall, at the time of sending the order for
the inspection to the inspector, send a duplicate of
the order to the commissioner of agriculture.
As to penalty for illegal use of official brands, failure to
send duplicate request to commissioner and wrongful use
of branded vessel, see P. C, §§ 637, 638, 640.
§ 1809. (§ 1588.) Test of oils. — No person
shall manufacture or have in his possession, or
sell, or give away for illuminating or heating pur-
poses in lamp or stoves within the State, any oil
or burning fluid, wholly or partly composed of
naphtha, coal oil, petroleum, or products thereof,
or of other substances or materials, emitting an
inflammable vapor which will flash at a tempera-
ture below 100 degrees Fahrenheit, when tested
in the closed oil tester, known as the New York
State or Elliott Oil Tester, according to the fol-
lowing formula, to-wit: Fill the water bath with
fresh well or hydrant water up to the lead mark
on the inside. Then immerse the oil cup in the
water and pour in oil so as to fill the cup up to
within one eighth of an inch of the plunge. Take a
piece of blotting paper and remove all air-bubbles
from the surface of the oil by lightly touching
them with the paper. Next, carefully, with a dry
towel or cloth, wipe the upper inner parts of the
oil cup so as to remove any drops of oil
that might have spatted on the upper part of
the cup. Then put on the glass cover of the oil
cup, pass thermometer through the hole in the
cork to such a point that the mercury bulb will
just be covered by the surface of the oil. Next
light the lamp and introduce it under the water
<bath; so adjust the flame that the temperature will
rise at the rate of two degrees a minute. Wait un-
til the temperature reaches 99 degrees F., then
light a wooden toothpick and pass the flame
through the semicircular opening in the glass
plate at such angle as to clear the glass cover, and
to a distance about half way between the oil and
the cover. The motion should be steady and uni-
form, rapid and without pause. The appearance
of a slight bluish flame shows that the flashing
point has been reached. If the oil flashes at this
point, it should be branded: "State of Georgia,
Rejected." If it does not flash at this point, it
should be branded: "State of Georgia, Approved."
Naphtha and other illuminating produces of pe-
troleum, which will not stand the flash test re-
quired by this section, may be used for illuminat-
ing or heating purposes in the following cases:
1. In street lamps and open-air receptacles,
apart from any buildings, factory, or inhabited
house in which the vapor is ;burned.
2. In dwellings, factories, or other places of
business when vaporized in secure tanks of metal
generators made for that purpose, in which the
vapor so generated is used for lighting or heating.
3. For use in the manufacture of illuminating
gas in gas manufactories, situated apart from
dwellings and other buildings.
The inspector shall provide at his own expense
instruments for testing oils and stencils for brand-
ing packages, to read thus: "State of Georgia, Ap-
proved," with name of inspector and date of in-
spection. The inspectors should brand all oils and
fluids falling below 100 degrees, flash test, in the
Elliott Tester, "State of Georgia, Rejected," with
the name of inspector and date of inspection. If
the inspector shall find any illuminating oil or
fluid under the flash test required by law, or
falsely branded, he shall cause the offender to be
prosecuted.
4. When the oil inspected shall stand a higher
test, the inspector shall designate the same by his
brand,
5. Inspectors, or other sworn clerks, or depu-
ties, may enter any place where oils or illuminat-
ing fluids are kept for sale or consumption in this
State, and may reinspect any fluid which he has
reason to suspect is below the standard. But no
fee shall be charged for re-inspection.
6. Any person selling oil in violation of this sec-
tion, in addition to the penalty prescribed in the
Penal Code, shall be liable to any person who
shall sustain damage to property or person by
reason thereof: Provided, reasonable prudence
was used 'by the party injured while handling the
fluid.
7. Inspectors shall inspect from time to time
oil in the tanks of retail dealers, whether pre-
viously inspected or not; and if the fluid is below
the standard, the same shall be seized, and, after
ten days notice, be sold for redistillation only.
Proceeds, after deducting necessary expenses of
sale, notice, and seizure, shall be turned over to
to the school fund of the county in which the seiz-
ure is made. Acts 1899, p. 75.
See §§ 1813, 4426.
As to punishment for illegal sale of illuminating fluid,
see P. C, § 639. As to wrongful use of branded vessels,
see P. C, § 640. As to sale of uninspected oil, see P. C,
§ 842.
§ 1809(1). Duty to inspect gasoline, benzine and
naphthas. — It shall be the duty of all inspectors of
illuminating oils to inspect all gasolines, benzines
and naphthas sold or offered for sale in this State.
Acts 1912, p. 149.
§ 1809(2) Compensation for inspecting gas-
olines, etc.; records; reports. — All inspectors
shall receive the same compensation for in-
specting gasolines, benzines and naphthas as is
provided for in the inspection of illuminating oils.
Each inspector shall keep a record of the amount
of gasolines, benzines and napthas inspected,
with the name of the person, firm or corporation
for whom said inspection is made, and also all the
moneys received by him for said inspection. He
shall also forward monthly reports on the first of
each month to the Commissioner of Agriculture
and shall at the same time forward to the Treas-
ury of the State all moneys received by him as
fees during that time, except what he is entitled
to retain as his compensation. The entire com-
pensation of any inspector, including all services
rendered the State, shall not exceed one hundred
dollars per month. Acts 1912, pp. 149, 150.
§ 1809(3). Gasolines, benzines and naphthas
subject to supervision; labels required; adultera-
[423]
§ 1809(4)
INSPECTION OF OILS
§ 1811(1)
tion. — For the purpose of this Act, gasolines, ben-
zines and naphthas shall be deemed to be subject
to the same supervision and control as is now pro-
vided for illuminating oils, except that the inspec-
tors are not required to test them other than to
ascertain their specific gravity at 60 degrees
Fahrenheidt, and it shall be unlawful for any
manufacturer, dealer or vender, to sell, offer for
sale or keep in storage any petroleum product
known as gasoline, benzine or naphtha, unless he
shall label any casks, barrels or packages contain-
ing such product with figures denoting their
gravity and the words "Gasoline," "Benzine" or
"Naphtha" in large red letters at least one and
one-half inches in size. Provided, that this re-
quirement as to labeling shall not apply to car
tanks, storage tanks or delivery wagons.
If any manufacturer, vender or dealer shall
adulterate any gasoline, benzine or naphtha with
any injurious matter or by increasing the bulk
thereof by the addition of water thereto, he shall
be liable to any party who may be injured for any
resultant damages, to be recovered in a civil ac-
tion. Acts 1912, pp.' 149, 150.
As to the penalty for the violation of this act, see §§
642 (1) and 642 (2), P. C.
§ 1809(4). Schedule of fees for official inspection.
— The following shall be the legal schedule of fees
for official inspection of gasolines, benzines and
naphthas in this State: For inspecting lots of four
hundred gallons and upwards, one-half cent per
gallon; for inspecting in quantities of more than
two hundred and less than four hundred gallons,
one cent per gallon; for inspecting in quantities of
less than two hundred gallons, one and one-half
cent per gallon. There shall be no difference of
charges in cases where the oil inspected is in
barrels from charges where the oil is in bulk. The
fees herein prescribed shall be paid by the owners
of the gasolines, benzines and naphthas at the time
inspections are made. Acts 1912, pp. 149, 151.
§ 1809(5). Gasoline, etc., sold elsewhere and
brought into Georgia. — The provisions of this Act
shall apply not only to gasolines, benzines and
naphthas sold or offered for sale in the State of
Georgia, but likewise to all such commodities thai
may be sold elsewhere and 'brought into the State
of Georgia, for consumption or use. Where such
commodities or any of them may be purchased
within the State, or without the State and brought
into the State, by any person, firm or corporation,
not for the purpose of selling or offering the same
for sale, but the purpose of use or consumption by
the purchaser in manufacturing or other lawful
uses, either as fuel or otherwise, the inspections
herein prescribed shall be made, and the fees above
fixed shall be paid therefor, except that no such
purchaser shall be required to pay more than
twelve hundred dollars per year for the inspection
of all such commodities used or consumed by him
as aforesaid, and such payments may, in the dis-
cretion of the Commissioner of Agriculture, be
divided into equal monthly payments of one hun-
dred dollars each. Acts 1913, pp. 110, 111.
§ 1809(6). Labels required of retailers. — Every
person dealing at retail in gasolines, benzines and
naphthas in this State shall from and after the
passage of this act deliver same to the purchaser
only in barrels, casks, cans or packages designated
by labels securely pasted or attached thereto with
the words "Gasoline," "Benzine" or "Naphtha,"
"Dangerous," "Inflammable" printed in bright
red ink; provided, however, that this section does
not apply to tank wagons or car tanks or storage
tanks. If sold from a tank wagon, the person sell-
ing or delivering the same shall show on each sale
ticket the gravity test of the gasoline, benzine or
naphtha delivered to such retail dealer. Nothing
in this section shall prevent dealers from deliv-
ering gasoline by pumping or pouring same into
automobiles. Acts 1912, pp. 149, 151; 1918, p. 164.
As to the penalty for the violation of this act, see §
642 (3), P. C.
§ 1809(7). Kerosene not stenjciled. — No dealer
shall deliver kerosene in barrels, casks, cans or
packages stenciled as set forth in Section 1809(5).
Acts 1912, pp. 149, 152.
§ 1809(8). Provisions of Act enforced by Com-
missioner of Agriculture. — The Commissioner of
Agriculture shall cause to be enforced the provi-
sions of this Act, and shall have the authority to
make such rules and regulations governing the
inspection, sale and storage of gasolines, benzines
and naphthas as in his judgment will effectively
carry out all provisions of this Act. Acts 1912, pp.
149, 152.
§ 1810. General inspector of oils. — It shall be
the duty of the commissioner of agriculture to
appoint a general inspector of oils for the State,
whose duty shall be to go from point to point
about the State at the direction of the commis-
sioner of agriculture to inspect such oils as may
be desired, instruct the local inspectors in the art
of taking fair, correct, and impartial samples of
oils for illuminating purposes, and to test the same,
under the provisions of this Article, to check up
all accounts and books of account of local oil in-
spectors, and to see that said moneys due the
State from fees paid for oil inspections are paid
into the State treasury, and to see that said local
oil inspectors fairly, correctly, and impartially
discharge the duties imposed upon them by law.
and perform such other duties as may be pre-
scribed by the commissioner of agriculture. Acts
1899, p. 75.
§ 1811. Salary of general inspector.— The Gen-
eral Inspector shall be paid a salary not to exceed
three thousand dollars per annum and actual and
necessary traveling expenses while in the discharge
of his duties, and said salary, traveling and, all of-
fice expenses shall be paid out of the fees collected
from oil inspection; provided, however, that this
shall not be in conflict with other Sections of the
Code providing for the appointment and com-
pensation of local oil inspectors. Acts 1913, p. 43;
1919, pp. 86, 90.
Editor's Note. — This section relating to the salary of the
general inspector has been twice amended. First, by the
Acts of 1913 (Acts 1913, p. 43) which increased the salary
from one hundred dollars a month to eighteen hundred dol-
lars a year, but out of this eighteen hundred dollars was
to come all clerk hire in said office. Second, by the Acts
of 1919 (Acts 1919, p. 89) which also increased his salary
to three thousand a year and provided that clerk hire, etc.,
should be paid out of the fees collected from the oil in-
spection and not out of the inspector's salary.
§ 1811(1). Clerk in office of state oil inspector.
— There shall be a clerk in the office of the State
[ 424
§ 1812
INSPECTION OF NAVAL STORKS
§ 1816
oil inspector, who shall be paid a salary of not
more than fifteen hundred dollars per annum.
Such clerk shall be appointed by the Commissioner
of Agriculture of the State, and shall hold his
office during the pleasure of said commissioner.
Acts 1918, p. 208.
§ 1812. State chemist's decision final in cases of
dispute. — Whenever complaint is made to the de-
partment of agriculture in regard to the illuminat-
ing qualities of illuminating oils sold in this State,
it shall be the duty of the general inspector of oils
to secure sample of such oil complained of, which
shall be turned over to the State chemist, who shall
thoroughly analyze and test said oil with reference
to its illuminating quality. If, after analyzing and
testing said oil, the State chemist shall decide that,
although the oil be safe, it is yet of inferior illumi-
nating quality, then the general inspector, on re-
ceipt of the State chemist's report, shall brand
such oil "State of Georgia, Rejected. Quality in-
ferior," with his name and date of inspection. The
State chemist is hereby constituted the referee,
whose decision shall be final in all cases of dispute
regarding oils. Acts 1903, p. 95.
§ 1813. Penalties apply to oils of inferior qual-
ity.— The same penalties applying to oils which
fail to meet the flash test of the State of Georgia
shall also apply to oils of inferior illuminating
quality.
See § 1809, par. 6.
§ 1814. Duty of general inspector to prosecute.
— It shall be the duty of the general inspector of
oils to prosecute violators of the provisions of this
Article, and all fines arising from such prosecu-
tions shall (become a part of the general educa-
tional fund of this State. Acts 1899, p. 75.
See § 1515.
§ 1814(1) Laws not applicable to certain ar-
ticles.— The laws of this State relating to the in-
spection of illuminating oils, gasolines, benzines
and naphthas, and for the making of tests there-
of, and prescribing the fees for such inspections
and tests, and prescribing the duties of the Com-
missioner of Agriculture, and the General Oil In-
spector, and of all local inspectors, as set forth in
Section 1800 to 1814, both inclusive, and provid-
ing a penalty for the selling or keeping for sale, or
in storage, or for consumption or use, in this State,
of any of the aforesaid articles or products, or of
any crude or refined petroleum, naphtha, kerosene,
earthrock, coal, machine, or illuminating oil, the
product of petroleum, earthrock or coal oil, with-
out having the same inspected and paying the fees
of such inspection, as provided in Section 642 of
Penal Code of this State of 1910, and providing a
penalty for the sale or offering for sale any of said
articles which fail to stand the test required under
said laws, as found in Section 639 of the Penal
Code of this State of 1910, shall never be held or
construed to apply to oils and gasoline, benzine,
or naphtha, or other articles mentioned in said laws,
imported into this State in interstate commerce
and intended to be sold in the original and. un-
broken tank cars or other original receptacles or
packages, and so sold, while the same are in in-
terstate commerce. Acts 1920, pp. 163, 164.
§ 1814(2). Duties as to inspection, etc., of such
articles. — Aforesaid laws shall never be so con-
strued as to make it the duty of the Commissioner
of Agriculture, the General Oil Inspector, or of
the several local oil inspectors, to inspect or test
said articles or products mentioned in said Acts,
or to collect fees for so doing, or to apply any of
said laws to said articles or products when im-
ported into this State in interstate commerce and
intended to be sold in the original and unbroken
tank cars, or other original receptacles or pack-
ages, and so sold, while the same are in inter-
state commerce. Acts 1920, pp. 163, 166.
§ 1814(3). Commissioner of Agriculture and oil
inspectors. — The Commissioner of Agriculture of
this State, and the General Oil Inspector and the
several local inspectors provided for in the afore-
said laws, are hereby forbidden and prohibited
from inspecting or testing, or causing to be in-
spected or tested, or from collecting or receiving
fees for making said inspections or tests of any
of said articles or products mentioned in said
laws when imported into this State in interstate
commerce and intended to be sold in the original
and unbroken tank cars, or other original recep-
tacles or packages, and so sold, while the same
are in interstate commerce, provided that said
inspectors shall be authorized to inspect and test
said articles or products in the original and un-
broken tank cars, or other receptacles or pack-
ages, and to collect the prescribed fees therefore,
in cases where the owner, shipper, consignee, or
other persons having the ownership or control
and disposition of the same or his duly authorized
agent, shall in writing , admit that the same are
not in interstate commerce, and duly order or
request that said oils, gasolines, benzines, and
napthas, or other products be so inspected.
Acts 1920, pp. 163, 166.
CHAPTER 2.
Pure Spirits of Turpentine Acts. Inspection of
Naval Stores and Appointment of Inspectors.
ARTICLE l.
Supervising Inspector, Appointment, and
Qualification.
§ 1815. Supervising inspector, appointment, and
qualification. — The Governor shall appoint a com-
petent person, who shall be a citizen of the State
of Georgia, to be the supervising inspector of na-
val stores for the State of Georgia, and who shall
be skilled in the inspection of and familiar with
the grades of naval stores and competent to detect
adulteration thereof. No person shall be ap-
pointed supervising inspector of naval stores who
is a producer, factor, or buyer of or dealer in na-
val stores, or employed by or connected in busi-
ness with any such producer, factor, buyer, or
dealer in naval stores. Acts 1903, p. 77.
As to punishment for violating this section, see P. C, §
650. As to fraudulently branding barrels, see P. C, § 653.
As to overcharging, see P. C, § 651.
§ 1816. Term of office.— He shall hold his of-
fice for four years from and after his appoint-
ment.
[425]
§ 1817
INSPECTION OF NAVAL STORES
§ 1823(4)
§ 1817. Where he shall have his office.— He shall
have his office in the part of the State receiving
the largest amount of naval stores for sale or
shipment.
§ 1818. He shall give bond.— He shall give bond
in the sum of five thousand dollars, with at least
two good and sufficient securities, payable to the
State, conditioned for the faithful discharge of all
the duties of his office; and the bond, before be-
ing accepted, shall be approved by the attorney-
general and the Governor, and filed in the office
of the secretary of State.
§ 1819. His compensation. — He shall receive as
compensation for his services one fourth of a cent
for each barrel of rosin or spirits of turpentine
which may be inspected under the laws of this
State; for a basis of said fee a barrel when ap-
plied to spirits of turpentine shall be fifty gallons,
and the term spirits' of turpentine shall include all
spirits of turpentine mentioned in this Article. A
barrel, when applied to rosin, shall be 280 pounds,
and said fee shall be reckoned on this basis. Said
fee shall be paid equally by the buyer and seller
of such naval stores. In case of naval stores
shipped in packages or receptacles other than
barrels, his compensation shall be reckoned upon
the basis of barrels or fractions thereof, in the
same manner as is provided for the payment of
fees of inspectors under like conditions. He shall
have the right to recover from any person or
corporation the fees allowed him, in appropriate
proceedings in any, court having jurisdiction
thereof.
§ 1820. His powers and duties. — He shall have
general supervision and direction of all inspectors
of naval stores, and it shall be his duty to see
that they fairly and honestly perform all the du-
ties imposed upon them in the manner provided
by law, and to report to the Governor any delin-
quency or irregularity of any such inspector, and
to investigate complaints made by producers or
others of the conduct of such inspector in the dis-
charge by him of the duties of his office. He shall
also have supervision of all naval stores, plants,
yards, warehouses, and it shall be his duty to see
that no adulteration of naval stores is commit-
ted in this State, and to collect evidence of any
adulteration which may come to his knowledge,
or be reported to him, whenever the same may
occur in the State, and to prosecute or cause to be
prosecuted all persons violating the laws of this
State in regard to the inspection, marking, brand-
ing, or adulteration of naval stores. He shall
also perform such other duties as may be con-
ferred upon him by law, but he shall not per-
form the duties of an inspector except when neces-
sary to determine the correctness of any inspec-
tion made by an inspector.
§§ 1821-1823. Repealed by Acts 1925 p. 318 here-
in codified as §§ 1823(l)-1823(5).
§ 1823(1). Naval Stores Standards regulated.—
This Act may be designated and cited as the
"Georgia Naval Stores Act." Acts 1925, p. 318.
§ 1823(2). Definitions. — When used in this
Act—
(a) "Naval Stores" means spirits of turpentine
and rosin.
(b) "Spirits of turpentine" includes gum spirits
of turpentine and wood turpentine.
(c) "Gum spirits of turpentine" means spirits of
turpentine made from gum (oleoresin) from a
living tree.
(d) "Wood Turpentine" includes steam dis-
tilled wood turpentine and destructively distilled
wood turpentine.
(e) "Steam distilled wood turpentine" means
wood turpentine distilled with steam from the
oleoresin within or extracted from the wood.
(f) "Destructively distilled wood turpentine"
means wood turpentine obtained in the destruc-
tive distillation of the wood.
(g) "Rosin" includes gum rosin and wood
rosin.
(h) "Gum Rosin" means rosin remaining after
the distillation of gum spirits of turpentine.
(i) "Wood Rosin" means rosin remaining after
the distillation of steam distilled wood turpentine.
(j) "Package" means any container of naval
stores, and includes barrel, tank, tank car, or
other respectacle.
(k) "Persons" includes partnerships, associa-
tions, and corporations, as well as individuals.
(1) "Commerce" means commerce within the
State of Georgia, and shall be deemed to in-
clude all commerce other than that with foreign
nations and among the several States and with
the Indian Tribes. Acts 1925, p. 318.
§ 1823(3). United States Standards established.
— The standards for spirits of turpentine and
rosin established by the Act of Congress, ap-
proved March 3, 1923, known as the "Naval
Stores Act" and those that may be hereafter es-
tablished and promulgated by the Secretary of
Agriculture of the United States pursuant to the
authority conferred by said Act of Congress,
shall be the Naval Stores Standards of this State.
Said standards shall be referred to as the "Offi-
cial Naval Stores Standards of the United
States," or by • the abbreviated expression
"United States Standards." The various grades
of rosin shall be designated as in said Act of
Congress. Acts 1925, p. 318.
§ 1823(4). Acts injurious to commerce. — The
following Acts are hereby declared injurious to
commerce in naval Stores and are hereby prohib-
ited and made unlawful:
(a) The sale in commerce of any naval stores,
or of anything offered as such, except under or
by reference to United States Standards.
(b) The sale of any naval stores under or by
reference to United States Standards which is
other than what it is represented to be.
(c) The use in commerce of the word "turpen-
tine" or the word "rosin," singly or with any
other word or words, or of any compound, de-
rivitive, or imitation of either such words, or of any
misleading word, or of any word, combination of
words, letters or combination of letters, provided
herein or by the Secretary of Agriculture of the
United States to be used to designate naval stores
of any kind or grade, in selling, offering for sale,
advertising, or shipping anything other than
naval stores of the United States Standards.
(d) The use in commerce of any false, mislead-
I ing, or deceitful means or practice in the sale of
[426]
§ 1823(5)
INSPECTION OF NAVAL STORES
§ 1831
naval stores or of anything offered as such. Acts
1925, p. 318.
As to the penalty for the violation of this section, see
§ 656 (1), P. C.
§ 1823(5). Distribution of copies of act. — The
Commissioner of Agriculture shall cause a suf-
ficient number of copies of this Act to be printed
for public distribution among those engaged in
the naval stores trade in this State. Acts 1925,
p. 318.
§ 1824. Unmarked adulteration forfeited. — Any
person who shall knowingly have in his possession
any spirits of turpentine or wood spirits of turpen-
tine for sale and consignment or shipment, which
shall be in any manner adulterated without being
marked on the outside of the barrel with the
words and in the manner required by this Article,
shall forfeit the same to the State.
When the language of this section is followed there is
sufficient allegation of the defendant's knowledge of adulter-
ation of spirits of turpentine. Peninsular Naval Stores Co.
v. State, 20 Ga. App. 501, 93 S. E). 159.
§ 1825. Proceedings to forfeit. — Upon sworn
information thereof from any person, it shall be
the duty of the solicitor-general of the judicial
circuit, in which such property subject to the
forfeiture under this Article may be found, to pro-
ceed forthwith to have the same forfeited and sold
in the following manner: He shall file with the
superior court' of the jurisdiction in which said
property is found information in the name of the
State, setting forth the property whereof for-
feiture is claimed, the owner thereof, or the per-
son in whose possession the same is found, and
the grounds of forfeiture. Upon the filing of such
information, a copy of which with process attached
and writ of attachment shall be thereupon issued
without bond or affidavit, returnable to the next
term of the superior court where such informa-
tion is filed; but if such superior court shall sit
within fifteen days next after issuing such attach-
ment, it shall be made returnable to the next term
of the superior court thereafter. Such summons
and writ of attachment shall be served in the
manner provided for service of a writ of attach-
ment in civil actions at law. Thereafter the cause
shall proceed in the same manner as the same ac-
tions at law.
§ 1826. Subsequent proceedings. — In case of at-
tachment, and in the event the property shall be
adjudged forfeited, the same shall be sold as is pro-
vided in the case of sales under execution; or
any person claiming to own property attached,
or his agent or attorney, may, in such proceed-
ings, intervene and defend the said proceedings
as in cases of attachment. All such proceedings
shall be governed in other respects by the rules
of pleading and practice applicable to suits at law
in cases of attachment.
§ 1827. Proceeds, how disposed of. — The pro-
ceeds arising from said sale shall be paid into the
treasury of the county in which said case is
tried, to be paid by the treasurer of said county
under order of the court as follows: One half
to the informant upon certificate of the solici-
tor-general that the person claiming the same is
entitled thereto as the informer upon whose in-
formation said action was begun, and the re-
mainder to be paid to the county treasurer of the
county in which the conviction is had, as a part
of the fine-and-forfeiture fund. Neither the super-
vising inspector nor any other inspector shall be
permitted to receive any part of the proceeds of
any such forfeiture; and if the information be
given by any such inspector, the entire proceeds
shall be paid into said fine-and-forfeiture fund.
§ 1828. Inspection and analysis. — The supervis-
ing inspector of naval stores, or any other in-
spector of naval stores, if he shall have reason to
believe that any spirits of turpentine or wood
spirits of turpentine has been or is adulterated in
any manner, shall have the right to enter the
place where the same is stored or kept, and to
open any barrel or barrels, in which the same may
be, and to take therefrom a sufficient quantity, not
exceeding a pint, from every barrel as a sample for
analysis and inspection. Each such sample shall be
sealed by the supervising inspector or other inspec-
tor of naval stores taking the same, who shall at the
same time write, mark, or label the same in such
manner as to indicate the time and place of tak-
ing the same and the ownership of the barrel
from which it is taken, as well as any other facts
necessary to indentify the sample so taken with
the original. The owner, claimant, or custodian
of such spirits of turpentine shall have the right
to be present, if he desires, in person or by agent,
at such sampling, and to demand and receive of
such supervising inspector or inspector of naval
stores a sample in all respects like that taken by
such supervising inspector or inspector of naval
stores.
§ 1829. Analysis as evidence. — The analysis of
any such sample so taken by such inspector or
supervising inspector, sworn to by any witnesses
competent to make such analysis, shall be admis-
sible in evidence in any action wherein the grade
or quality of the original from which the sample
shall have been taken shall be in issue. A certifi-
cate of the result of an analysis made and certified
by the State chemist or assistant chemist shall
be prima facie evidence of the nature, composi-
tion, and character of the contents of the bar-
rel from which such sample was taken and of the
correctness of such analysis, and for such pur-
poses admissible in evidence in any court of this
State.
See § 1772.
§ 1830. Law to be posted. — Every person who
produces, manufactures, consigns, sells, or keeps
for sale, and every manufacturer, producer of, or
dealer, or factor in naval stores in the State of
Georgia shall post and keep posted a written or
printed copy of this Article in a public place at
the still location, warehouse, yard, or other place
where he shall manufacture, store, or keep naval
stores; and it shall be the duty of the secretar)-
of State to cause a sufficient number of copies of
this Article to be printed for public distribution
for the purposes aforesaid.
§ 1831. Penalties and provisions deemed several.
— The penalties, punishments, and other provi-
sions of this Article, for the enforcement of the
same, shall be deemed several, and the enforce-
ment of one shall not preclude or affect the en-
forcement of any other.
[427]
§ 1832
APPOINTMENT OF INSPECTORS BY CITIES: DUTIES
§ 1843
ARTICLE 2.
Inspection of Naval Stores and Lumber.
§ 1832. (§ 1589). Inspector shall be disinterested.
— No inspector of naval stores, now appointed
or hereafter appointed by the corporate authori-
ties of any city, or the ordinary of any county,
shall be or become during his term of office the
agent or clerk of any buyer of naval stores, or of
any factor, brokerage or commission merchant
engaged in the buying or selling of naval stores,
or manufacturer engaged in the production of
naval stores. Acts 1887, p. 110.
As to punishment for violating this section, see P. C,
§§ 647, 650.
§ 1833. (§ 1590). Charges for inspection. — No
corporate authority, incorporation, or ordinary
having the appointment of naval-stores inspectors
shall have the power to authorize or empower in-
spectors of naval stores to charge more than six
cents per barrel for inspecting rosin, including
weighing, inspection, and cooperage, nor more
than nine cents per barrel for inspecting spirits
of turpentine, including guaging, inspection, bung-
ing, and cooperage; any inspector of naval stores
charging and demanding more than six cents for
inspecting a barrel of rosin, or more than nine
cents for inspecting a barrel of spirits of turpen-
tine, shall be guilty of a misdemeanor: Pro-
vided, that no inspector shall be compelled to
make an inspection of rosin or spirits of turpen-
tine until these fees are first paid. Acts 1887,
p. 110.
As to penalty for violating this section, see P. C, § 651.
§ 1834. (§ 1591). What inspectors may be ap-
pointed.— No corporate authority, court, or other
incorporation having the appointment of inspec-
tors of lumber or timber, shall appoint any other
class of inspectors of lumber or timber than those
recognized and authorized by the Code. Acts
1876, p. 32.
See § 1843.
§ 1835. (§ 1592.) Inimical local laws repealed. —
All ordinancies of any city or town inconsistent
with the provisions of this Code are repealed,
and any inspector or other person who shall vio-
late any of the provisions of section 1843, so far
as the same relates to the inspection and measure-
ment of any timber or lumber, shall be punished
as prescribed in section 649 of the Penal Code,
any local law, rule, or regulation, or ordinance
of any city or town, to the contrary notwithstand-
ing. Acts 1873, p. 21.
§ 1836. (§ 1593.) Fees of inspectors.— No cor-
porate authority, incorporation, or court having
the appointment of inspectors, shall have power
to authorize or empower inspectors and measurers
of lumber and timber to charge more than
twenty-five cents per thousand feet for inspecting,
measuring, and trimming lumber and timber.
Acts 1876, p. 32.
As to penalty for over-charge, see P. C, § 646.
§ 1837. (§ 1594.) Penalty for disposing of drifted
timber. — No raftsman or other person shall
dispose, or attempt to dispose, of any drifted tim-
ber or lumber taken up by him within this State,
on pain of paying not exceeding five hundred
dollars for such offense, to be recovered in any
court having jurisdiction of the same, one half of
the penalty to go to the informer, and the other
to the use of the county wherein such offense may
be committed; but nothing herein contained shall
prevent the finder of drifted timber or lumber
from requiring and receiving from the owner
reasonable compensation for delivering to the
owner such timber or lumber.
§ 1838. (§ 1595.) Fees,— The fee for receiving
lumber shall not exceed three cents per thousand
feet, which fee shall be charged only at the time
of receipt, and the fee for boomage shall not ex-
ceed thirty cents per day for each raft. Acts 1876,
p. 33.
§ 1839. (§ 1596.) Pitch, tar, etc., to be inspected
before it is shipped. — No person shall ship, or put
on board any vessel for exportation from this
State, any pitch, tar, rosin, or turpentine before
the same is inspected and marked, provided there
be at the port of exportation a sworn inspector of
such articles, on pain of forfeiting one dollar for
every barrel so shipped, one half to go to the in-
former, and the other half to the use of the town
or place of exportation. The true contents and
quality of every barrel of such articles must be
branded on the barrel.
§ 1840. (§ 1597.) Quality, etc., of turpentine
barrels. — Every barrel of soft turpentine shall be
formed of good and sufficient staves, three quar-
ters of an inch thick, not exceeding five inches
wide, not less than thirty nor more than thirty-
two inches long; the head not less than one nor
more than one and a half inches thick, and the
barrel secured with twelve good hoops.
§ 1841. (§ 1598.) Barrels of turpentine, how
marked. — Each barrel of soft turpentine, after in-
spection, if found in conformity to the foregoing
provisions, shall be branded or marked by the in-
spector as follows: The pure or virgin turpentine
with the letter "V"; the yellow dip, "S"; the
hard, "H."
As to punishment for fraudulent branding, see P. C, §
653.
ARTICLE 3.
Appointment of Inspectors by Cities, and
Their Duties.
§ 1842. (§ 1599.) Powers of corporate authori-
ties.— The corporate authorities of any seaport
town may make such further regulations for the
inspection of rosin, pitch, tar, and turpentine, and
for the discovery of fraud in making and vending
said articles, as to said authorities respectively
shall seem proper.
§ 1843. (■§ 1600.) Inspectors may be appointed
for any article. — Inspectors may be appointed,
their duties prescribed, their fees fixed, and in-
spection and marking regulations adopted, by the
corporate authorities of any city, for the inspec-
tion of guano and other fertilizers, tobacco, salt,
pitch, tar, turpentine, rosin, fish, oil, staves,
shingles, timber, wood, lumber, and liquor, and
such other articles and things as are usualty the
subject of inspection and measurements, and for
measuring and gauging the said articles, or any of
them, within the limits of said cities; and the same
[ 428 ]
§ 1843
INSECTICIDES AND FUNGICIDES
§ 1843(3)
power my be exercised by the ordinary of every
county, outside the limits of such town, and within
the limits of such county: Provided, such regula-
tions be not inconsistent with the following pro-
visions:
1. No person shall be permitted to inspect,
measure or gauge, except such as may be regu-
larly appointed, under a penalty of five hundred
dollars for every offense, one half to go to the in-
former, and the other half to the incorporation or
court having the appointment of inspectors. Every
person so appointed shall be required, to take an
oath or affirmation faithfully to perform the duties
of the office to the best of his skill and ability, and
shall moreover give bond and security for the
faithful discharge of the duties thereof. All va-
cancies may be filled by the appointing power.
2. In all seaport towns where timber or lumber
is brought for exportation, or otherwise, the
same shall be inspected and measured, and bills
for such measurement shall be made out in super-
ficial measurement.
3. All square timber shall be measured as fol-
lows: The length shall be counted from pinhole
and the size from the middle of the stick, taking
the smallest side and the face, throwing off frac-
tions, and allowing one half of the wane-edge on
the side and face; and other flatted timber, usually
known as. saw "or mill logs, shall be measured one
half from the smallest end.
4. All sticks which are rotten, hollow, split, or
broken shall be declared refuse by the inspector,
and the seller shall only be allowed one half the
measurement; but if the defect be at or near the
end, only so much as is defective shall be declared
refuse.
5. The hook to the dip-rod shall not be less than
one inch and three quarters long.
6. Ranging timber, scantlings, and boards shall
be deemed merchantable only when they have
square edges, and are sound and without decay;
nevertheless, if an3r scantling or board to be meas-
ured and inspected shall be split, decayed, or frac-
tured more than two feet,' and less than six feet
from the end thereof, such split, decayed, or frac-
tured part shall be left out and not counted in the
measurement.
7. Heading shall be two and a half feet long, six
inches broad, one inch thick on one edge, and not
less than three quarters of an inch on the other
edge, round and free from decay, worm or knot
holes; shingles to be twenty-two inches long, not
less than three and a half inches wide, a half-inch
thick at the thick end, not decayed, and free from
worm or knot holes.
8. Pipe, hogshead, and barrel-staves shall be
considered merchantable only when conditioned as
follows: Pipe-staves to be at least fifty-four
inches in length, three inches in breadth, and one
inch thick on the thin edge, sound and free from
worm or knot holes; hogshead-staves to be forty-
two inches long, three inches broad, and not less
than three-quarters of an inch thick on the edges,
sound and free from worm or knot holes; barrel-
staves to be two and. a half feet long, three inches
wide, and not less than three quarters of an inch
on their edges, sound and free from worm or knot
holes.
9. Every cord of fire-wood shall measure eight
feet in length, four in breadth, and four in height.
Any person to whom such wood is offered for sale,
who may suspect any deficiency, shall have the
right to have the same measured and corded by
any sworn inspector or measurer of the place; and
in case of any deficiency appearing, the seller shall,
besides paying the fees of the inspector, make
good the deficiency without delay, or forfeit, be-
fore any court having jurisdiction, the sum of
two dollars for every cord so deficient; in case of
no deficiency appearing, the fees of the inspector
or measurer shall be paid by the buyer. The cor-
porate authorities of any town or city may make
such further regulations on this subject as
to them shall appear proper to insure the objects
of this section.
See §§ 1834-1836.
For provisions in penal code relating to this section, see
P. C, §§ 646-649.
It has been held that it was clearly within the powers of
the municipal authorities under this section to enact an
ordinance for the inspection of domestic wines. Such ordi-
nance was not in contravention to the general domestic
wine act of 1877. Stephens v. Henderson, 120 Ga. 218, 220,
47 S. Fy- 498.
CHAPTER 2A.
Insecticides and Fungicides.
§ 1843(1). Filing names of products and dealers,
etc. — All manufacturers and. jobbers of and deal-
ers in calcium arsenate, lead arsenate, and dust
mixtures containing sulphur, lead arsenate and
lime, and other insecticides and fungicides com-
monly used on cotton, field crops, and fruits in this
State, who may desire to offer for sale and sell
calcium arsenate, lead arsenate, and dust mixtures
containing sulphur, lead arsenate and. lime, and
other insecticides and fungicides commonly used
on cotton, field crops and fruit, shall first file with
the Commissioner of Agriculture the name of each
brand of said preparation, which they may wish
to sell either directly or through agents, together
with the name and business address of such manu-
facturers, jobbers or dealers as the case may be.
Acts '1920, pp. 208, 209.
As to the penalty for the violation of this act, see $
656 (2), P. C.
§ 1843(2). Brands. — It shall be the duty of all
manufacturers, jobbers, dealers and agents in ad-
Vance of offering calcium arsenate, lead arsenate,
and dust mixtures containing sulphur, lead arse-
nate and lime, and other insecticides and fungicides
commonly used on cotton, field crops, and fruit,
for sale in this State, to brand on each package,
containing the name, the words, Calcium Arsenate,
Lead Arsenate, and Dust Mixtures containing
Sulphur, Lead Arsenate and Lime, and other in-
secticides and fungicides commonly used on cot-
ton, field crops and fruit, the weight of the pack-
age in full, the name and address of the manufac-
turer, also the contents of goods, the guaranteed
analysis, solubility and density. Acts ]920, pp.
208, 209.
§ 1843(3) Duty of manufacturers of insecticides
as to containers. — On and after the passage of this
bill, all manufacturers of insecticides used for
agricultural or horticultural purposes shall be re-
quired to have printed or have stamped on the
containers of all insecticides, the ingredients of
the insecticide. All laws and. parts of laws in con-
[ 429 ]
§ 1843(4)
MANUFACTURE AND SALE OF ETHYL ALCOHOL
§ 1843(12)
flict with this Act he and the same are hereby re-
pealed. Provided, that nothing contained in this
bill shall be held or construed in any way or man-
ner to repeal any part or provision of section
1843(2). Acts 1923, p. 103.
As to the penalty for the violation of this act, see §
656 (3), P. C.
§ 1843(4) Tags.— All manufacturers, or jobbers
or agents representing them, who have registered
their brands of the preparations heretofore men-
tioned, shall apply to the Commissioner of Agricul-
ture for tags to be attached to each package of the
aforementioned preparation, and with such request,
the sum of twenty-five ($.25) cents per ton, as an
inspection fee. Thereupon, the Commissioner of
Agriculture shall supply all such applicants with
the requisite number of tags which later, attached
to each package of calcium arsenate, lead arsenate,
and dust mixtures containing sulphur, lead arse-
nate, and lime, and other field insecticides and
fungicides commonly used on cotton, field crops,
and fruit, shall be prima facie evidence of com-
pliance with the provisions of this Act. Tags left
over from one season shall not be used next or
succeeding season or be redeemed by the Commis-
sioner of Agriculture. Acts 1920, pp. 208, 209.
§ 1843(5) Samples by Inspectors; expenses. —
Samples of calcium arsenate, lead arsenate, and
dust mixtures containing sulphur, lead arsenate,
and lime, and other insecticides and fungicide^
commonly used on cotton, field crops and fruit
shall be taken by fertilizer inspectors appointed by
the Commissioner of Agriculture, but they shall
not be allowed additional compensation for such
service; they shall, however, be reimbursed in the
matter of actual traveling expenses now paid, un-
der the rules of the Department of Agriculture,
when engaged in inspecting fertilizers. Samples of
calcium arsenate, lead arsenate, and dust mixtures,
containing sulphur, lead arsenate and lime, and
other insecticides and fungicides commonly used
on cotton, field crops, and fruit, shall be taken in
the same manner now observed in taking samples
of fertilizers. Acts 1920, pp. 208, 210.
§ 1843(6) Analyses. — It shall be the duty of
the State Chemist to make the necessary analysis
of all samples of calcium arsenate, lead arsenate,
and dust mixtures containing sulphur, lead ar-
senate, and lime, and other insecticides and fungi-
cides commonly used on cotton, field crops, and
fruit, that may be turned over to him by the
proper authorities. He shall keep a record of all
such analyses and report on the same, as he now
does in the case of fertilizer samples analyzed.
Acts 1920, pp. 208, 210.
§ 1843(7) Standard. — The State Board of En-
tomology is hereby authorized and required to fix
a standard for calcium arsenate, lead arsenate, and
dust mixtures, containing sulphur, lead arsenate,
and lime, and other insecticides and fungicides
commonly used on cotton, field crops, and fruit,
and to make such rules and regulations as, in the
judgment of said Board, as shall be necessary for
the protection of the people, and make thoroughly
effective the provisions of this Act, and such regu-
lations shall have the force of law. Acts 1920, pp.
208, 211.
§ 1843(8) Appropriation for expenses. — The
sum of Five Thousand ($5,000) Dollars, or so
much thereof as may' be necessary, be, and the
same is hereby appropriated to the Department of
Agriculture for the purpose of defraying the ex-
penses that may be incident to making the analy-
sis hereinbefore required. Acts 1920, pp. 208, 211.
§ 1843(9). Prosecutions. — It shall be the duty of
the Commissioner of Agriculture to prosecute
each and every violater of any of the provisions
of this Act. Acts 1920, pp. 208, 211.
§ 1843(10) Drug laws inapplicable. — No pro-
visions of the laws relating to the sale of Drugs
and Poisons shall be construed to apply to the
sale of the above named insecticides and fungi-
cides for use on cotton, field crops, and fruit.
Acts 1920, pp. 208, 211.
CHAPTER 2B.
Manufacture and Sale of Ethyl Alcohol.
§ 1843(11). Manufacture permitted. — From and
after the passage of this Act it shall be lawful for
any person, firm or corporation to manufacture in
this State ethyl alcohol from sawdust, chips, slabs
or any other wood substances, or material or ma-
terials produced therefrom, or from waste mate-
rial of any kind, or from molasses, with the aid of
such fermenting materials or boosters as may as-
sist in the production of such alcohol from any or
all such materials, subject to the conditions and
restrictions hereinafter set out. Acts 1925, pp.
297, 298.
§ 1843(12). Statement; name and address of
applicant and manager; blue print of plant; affi-
davit; fee; supplementary statement. — Before
any person, firm or corporation shall be authorized
to engage in the manufacture of ethyl alcohol as
provided in § 1843(11), such person, firm or cor-
poration shall file with the Ordinary of the county
in which the plant for the manufacture of such al-
cohol is to be located, a statement giving the fol-
lowing information:
1. The name and address of the applicant, if an
individual; and if a firm, the names of all members
thereof with the addresses of the firm and of the
individual members; and if a corporation, with the
name of the president or other chief executive of-
ficer and his address.
2. The name and address of the person who is
to ibe in charge of the proposed plant as manager
or superintendent.
3. A tracing or blue print showing the location
and layout from and including fermentation equip-
ment to finished and/or stored alcohol equipment,
of the proposed plant, with the dimensions shown
thereon.
Such application shall be verified by the affi-
davit of the applicant if an individual, or by a
member if the applicant is a firm, or by an execu-
tive officer if the applicant is a corporation. The
affidavit shall also contain the declaration that the
applicant does solemnly promise that the terms,
conditions and restrictions placed upon the manu-
facture of ethyl alcohol in this Act shall be faith-
fully kept and observed by the applicant in the op-
eration of the proposed plant.
Upon the filing of such statement the applicant
shall pay the Ordinary the sum of Five Dollars
[430]
§ 1843(13)
REGULATIONS OF AGRICULTURE, ETC.
§ 1845
as his fee for filing such statement, and thereupon
shall be authorized to proceed with the construc-
tion of such plant in accordance with the plans
shown in the statement so filed.
If during the course of construction or after
the completion the applicant should make altera-
tions in or additions to the plant as shown by the
tracing or blue print so filed with the application,
a supplemental statement accompanied by a trac-
ing or blue print showing such alterations or ad-
ditions shall be filed in the same manner and with
a similar affidavit. If there should foe a change of
the person in charge of such plant as manager or
superintendent, or a change in the ownership
thereof, the owner of the plant shall file a supple-
mental statement showing such change, verified as
aforesaid. The Ordinary shall be paid a fee of
One Dollar for filing each supplemental state-
ment.
A copy of the statement so filed, certified as ex-
emplifications from the Court of Ordinary are re-
quired to be certified, shall foe admissible in evi-
dence either for or against the applicant or owner
in any court proceeding in which the matter ap-
pearing in such statement would be relevant and
material evidence. Acts 1925, pp. 297, 298.
As to the penalty for the violation of this act, see § 702
(13), P. C.
§ 1843(13) Unauthorized use of equipment. — It
shall not be lawful for any equipment from and
including fermentation equipment to finish and/or
stored alcohol equipment, to be used in the manu-
facture of ethyl alcohol unless such equipment be
shown on the statement or supplements thereto on
file with the Ordinary of the County in which lo-
cated, as provided in the preceding section; nor
shall it foe lawful for any said equipment shown
on such statement to be used for any purpose in
connection with the manufacture, storage or hand-
ling of such alcohol, except for the purpose desig-
nated on said statement or supplements thereto.
Any such unauthorized use of any such equipment
shall not fall within the operation of this Act, but
shall 'be governed by the existing laws of this
State prohibiting such use, and the owner or own-
ers thereof, and any other person or persons
guilty of making such use, shall be subject to the
penalties fixed by existing laws. Acts 1925, pp.
297, 299.
§ 1843(14). Manufacture for use as beverage
prohibited. — No ethyl alcohol shall be manufac-
tured under the provisions of this Act to be used
either within or without this State as a beverage.
Acts 1925, pp. 297, 300.
§ 1843(15). Sale and transportation. — Ethyl al-
cohol manufactured under the terms of this Act
may be sold by the manufacturer in Georgia, and
may be transported to points within the State, in
the same manner and to the same extent and for
the same purposes that such alcohol lawfully may
be purchased outside of the state and brought into
the state under the laws of the United States gov-
erning such matters, and the rules and regulations
prescribed foy the Department of the United
States Government having at the time jurisdiction
and control thereof. All such alcohol manufac-
tured under the terms of this Act not sold and
transported within the State shall be handled and
kept from the date of its manufacture until dena-
tured, or until delivered to some common-carrier
for shipment without the State, and shall be
handled and transported by the common-carrier to
whom delivered, in accordance with the laws of
the United States governing such matters, and the
rules and regulations prescribed by the Depart-
ment of the United States Government having at
the time jurisdiction and control thereof. Acts
1925, pp. 297, 300.
§ 1843(16). Inspections. — Any plant operating
under the provisions of this Act, shall, subject to
the laws and or regulations of the United States,
be open to the inspection of the sheriff, or any
deputy sheriff, or any committee of the grand
jury, or any person designated by the grand jury,
or the solicitor of any city or county court, of the
county in which the plant is located, or of the So-
licitor-General of the circuit in which such county
is located, or any person or persons designated by
him, or of any State, United States, County or
Municipal Prohibition Enforcement Officer within
whose jurisdiction the plant is located, at any and
all reasonable hours, without a search warrant, or
other legal process or authority, providing such
person or persons, officer, representative and or
committee shall tender credentials duly identify-
ing himself and or such committee. Acts 1925,
pp. 297, 300.
§ 1843(17) "Denatured alcohol" defined.— "De-
natured Alcohol" as used in this Act shall mean
ethyl alcohol denatured in accordance with the
rules and regulations prescribed by the Depart-
ment of the United States government having at
the time jurisdiction and control of such matters.
Acts 1925, pp. 297, 301.
CHAPTER 3.
Regulations of Agriculture, etc.
ARTICLE 1.
Cotton, Rice, etc.
§ 1844. (§ 1601.) Scalesmen, weighers of cotton,
and others to be sworn. — It shall not be lawful for
any scalesman, salesman, or other person, in any
of the cities, towns, or villages of this State, to
weigh any foale, bag, or package of cotton, tierce
or half-tierce of rice, or any other articles of pro-
duce disposed of by weight, without first taking
and subscribing an oath, before some person au-
thorized by law to administer it, that he will
justly, impartially, and without deduction, weigh
all such cotton and all other articles of produce
disposed of by weight that may be shown to him
for that purpose, and tender a true account there-
of to the party or parties concerned, if so re-
quired. Acts 1875, pp. 18, 102; 1876, p. 27; 1889,
p. 68.
As to weighers of freight, see § 2763.
Ordinances Not Antagonistic Valid.— The weighing ordi-
nance of the City of Cartersville is not antagonistic to §§
1844-1850, and therefore is not invalid on the ground of spe-
cial legislation concerning matter provided for by a gen-
eral law. Cartersville v. McGinnis, 142 Ga. 71, 82 S. E.
487. See § 1850 and note thereto.
§ 1845. (§ 1602.) Deduction. — The weigher
may, nevertheless, make such deduction for wet,
[431]
§ 1846
COTTON, RICE, ETC.
§ 1850
or other cause, as may be reasonable, when the
seller or his agent shall thereto consent: Pro-
vided, that if the weigher, with the consent of the
seller or his agent, makes a deduction from the
gross weight of any bale, bag, or package of cot-
ton because of the bagging and fastenings on said
bail, bag, or package, the deduction shall be not
more than twenty-four., pounds if it is covered
with jute (bagging, and not more than sixteen
pounds if it is covered with cotton bagging, except
in the case of any bale, bag, or package of cotton
not fastened with iron ties nor with ropes, in
which case the deduction shall be not more than
ten pounds if it is covered with jute bagging, and
not more than five pounds if it is covered with
cotton bagging. And in every case in which a de-
duction is made from the gross weight of any bale,
bag, or package of cotton because of the bagging
and fastenings on said bale, bag, or package, the
weigher, in tendering a true account thereof to the
party or parties concerned, shall state the gross
weight of each bale, bag, or package, and also the
number of pounds deducted for bagging and fast-
enings, and the net weight.
§ 1846. (§ 1603.) Oath to be recorded, and pen-
alty for weighing without oath. — Such oath, when
taken, must be filed in the office of the ordinary of
the county, and a minute made thereof; and if
such person weighs such produce without having
taken and filed such oath, he and the factor or
person who may employ him shall be guilty of a
misdemeanor. Acts 1875, pp. 18, 102.
As to failure to take official oath, see P. C, § 273.
§ 1846(1) Public weigher and grader of cotton.
— Upon the application or petition of at least fifty
citizens or producers of cotton in any county with-
in the State of Georgia, made to the County
Commissioners of a county when they administer
the affairs of a county, or to the Ordinary of the
county when he administers the affairs of the
county, he or they shall appoint one competent
and discreet person who shall be known as the
Public Weigher and Grader of Cotton in such
county. Upon his appointment by them, they
shall issue to him a commission authorizing him
to weigh and grade all cotton that may be brought
to him for such purpose by the citizens of said
county; provided he shall first take an oath to
faithfully perform the duties of such weigher and
grader, and give bond conditioned upon the accu-
rate and faithful performance of his duty subject
to be enforced by any person that shall be dam-
aged on account of a failure in the performance of
his duty. Said recovery to be had in any Court
of this State having jurisdiction of the parties and
subject matter. Acts 1912, p. 155.
§ 1846(2). Deputies. — Said weigher and grader
shall be authorized when it becomes necessary to
appoint a deputy or deputies to act within said
county to assist him in weighing and grading of
cotton. In the appointment of such deputies he
shall not appoint any one who is not of good
character and competent to perform such duties.
Acts 1912, p. 155.
§ 1846(3). Compensation; duties; scales tested.
— As compensation for the weighing, grading, is-
suing certificates, as to weights and grades, and
stamping same upon the bale of cotton, such
weigher and grader shall have for such service,
and be allowed to charge the party desiring to
have said cotton weighed and graded the sum of
twenty cents per bale. It shall be the duty of the
weigher and grader or his deputy, upon their ap-
pointment, to provide a platform and scales with
ample facilities for handling cotton with speed
and at a minimum cost, at which platform or plat-
forms, all cotton sold in said market or shipped
may first be weighed, graded and stamped, if so
desired by the seller, producer, or buyer, and up-
on the application by the parties, it shall be the
weigher's duty to immediately weigh, grade and
stamp upon the cotton weights, grade, and issue
to the applicant a certificate showing the same and
enter the same in a book to be kept by him. The
appointed Public Weigher and Grader shall be re-
sponsible, on his bond, for the official act of his
deputy, and each weigher or deputy shall have
his scales tested at least once every thirty days
by the standard weights in the office of the Ordi-
nary as provided by law. Acts 1912, pp. 155, 156.
§ 1846(4). Removal of Weigher and Grader. —
The County Commissioner or Ordinary, which
ever has the appointing power, upon good and suf-
ficient cause shown, after ten days' notice, in
writing, personally served upon the Public
Weigher and Grader, shall inquire into his con-
duct and if they find sufficient reason, remove any
such officer from office, and appoint another in
his stead, and in the same manner may remove
any deputy by such public weigher appointed.
Acts 1912, pp. 155, 156.
§ 1847. (§ 1604.) Tare on rice.— The tare to be
allowed on rice shall be the actual tare, as nearly
as can be determined, except in cases of the sale
of a single tierce, half-teirce, or barrel, where a
tare of ten per centum shall be allowed, unless
otherwise agreed on between the buyer and seller.
§ 1848. (§ 1605.) Tare on other articles. — In
other cases where tare is usually allowed, the ac-
tual tare, as nearly as the same can be ascertained,,
shall be allowed, except where the seller and pur-
chaser may expressly agree upon a different rule.
§ 1849. (§ 1606.) No deduction to be made for
tiarn of scales, etc. — 'It shall not be lawful for any
purchaser or weigher to make any deduction from
the weight of any article for or on account of the
draft or turn of the scales or steelyard, under a
penalty, for every such offense, of five hundred
dollars, to be recovered in any court having juris-
diction, one half to go to the informer by whom
the suit may be brought, and the other half to the
use of the county where the offense may be com-
mitted.
§ 1850. (■§ 1607.) Corporate authorities may
make further rules. — The corporate authorities of all
cities and. towns may make such further regula-
tions for the weighing of produce of all descrip-
tions, including fees for weighing, as in their
judgment may tend to effect the objects of the
foregoing provisions, and the ordinaries of the re-
spective counties shall have the same power, to be
exercised outside the jurisdiction of said incorpo-
rated cities or towns; but, until altered by such au-
[432 ]
§ 1851
CULTIVATION OF RICK
§ 1858
tborities or ordinaries, fees for weighing shall be
such as are now fixed by law.
Exercise of Police Power. — A municipal ordinance requir-
ing, under appropriate penalty, bulky commodities, like
cotton and coal, for sale within the city limits, to be weighed
on public scales maintained by the city, is a valid ex-
ercise of police power. Cartersville v. McGinnis, 142 Ga.
71, 82 S. E. 487.
§ 1851. (§ 1608.) Produce not taxable by cities
or towns. — No municipal corporation shall levy or
assess a tax on cotton, or the sales thereof, nor
levy or assess a tax on any agricultural products
raised in this State, or the sales thereof (other than
cotton), until after the expiration of three months
from the time of their introduction into said, cor-
porations. Acts 1873, pp. 67, 68.
As to limitation on cities right to tax, see § 864.
Conflicting Ordinance. — An ordinance of a city assessing
on all gross sales of cotton on commission, by warehouse-
men, factors, etc., was in conflict with this provision.
Columbus v. Flournoy, 65 Ga. 231.
Retail Meat Business. — The fact that meat in which a re-
tailer deals was produced in Georgia and was never in the
city until carried in for delivery from the wagon, to the
customers at their doors, will not hinder the city from tax-
ing the retailer on his business. Davis & Co. v. Macon,
64 Ga. 128.
§ 1852. (§ 1609.) Salesmen shall not charge tax.
— No commission merchant, factor, or other sales-
man shall, in his bill of expenses for the sale or
handling of cotton or other produce as aforesaid,
include or collect, directly or indirectly, any tax
or assessment levied upon the sales of cotton or
other produce by any of said corporations; and in
case of violation of the same, he shall be liable to
the party damaged by such violation in the sum of
fifty dollars for every dollar so collected, in an ac-
tion of debt by said party. Acts 1873, p. 68.
As to expenses of agents, see § 3586.
§ 1852(1). Record to be made by purchaser of
seed cotton and filed with ordinary; landlords,
when exempt. — Any person or persons, firm, or
corporation who shall purchase any seed cotton
in this State at any time shall make a record in
writing or printing, at the time of said purchase.
which record shall give a reasonable description,
name and residence of the seller, date of purchase
and quantity of cotton so purchased, which said
record shall be filed in the office of the ordinary
of the county where said purchase is made, to be
kept by him and opened for the inspection of the
public within ten days from the date of such
purchase; provided, the provisions of this Act
shall not apply to the purchase of such cotton by
landlords from their tenants or croppers, where
such cotton was grown or raised by such tenants
or croppers. Acts 1916, p. 156.
As to the penalty for the violation of this section, see
§§ 555 (1) and 701 (4), P. C.
ARTICLE 2.
Cultivation of Rice.
§ 1853. (■§ 1610.) Water not to be diverted.—
No person shall ibe permitted to make or keep up
any dam to stop the natural course of any water,
so as to overflow the lands of any other person,
without his consent, nor shall any person stop or
prevent any water from running off any person's
field, whereby such person may be prevented from
planting in season or receive any other injury
thereby, nor so as to tufn the natural course oi
any water from one channel or swamp to another, to
the prejudice of any person. And whenever the
owner of any land in this State shall refuse to ex-
tend any drain or ditch through the same, that
may be dug to the line of his lot by the owner or
occupant of adjoining land, then the said adjoining
owner or occupant shall be privileged to extend
his drain at his own expense through any such
lands to a proper outlet; and if his land shall be
injured or decreased in value by reason of said
draining, then the party injured shall receive full
compensation from the person so draining for the
injury done. The question of such injury in value
may be submitted, on request of either party and
notice given, to three disinterested freeholders, to
be chosen by the ordinary of said county, and
they shall make an award upon the same rules and
regulations as are now provided by law touching
arbitration and awards: Provided, said award
shall be made and just compensation paid (before
the drain or ditch is commenced. Acts 1866, p. 27.
As to ownership of running water, see § 3669. As to
right to dam streams, see § 3634. As to ditches and levees,
see § 3638. As to watercourses, see § 4475.
§ 1854. (§ 1611.) Rice-dams, when to be opened.
— Every person who shall keep water during the
winter upon grounds where rice will be planted
the ensuing spring shall annually, by the fifth day
of March, open the dams which keep up the water,
and let off the same.
§ 1855. (§ 1612.) Penalty for violating the two
preceding sections. — Upon the violation of the
provisions of either of the preceding sections,
the person offending forfeits five hundred dollars
upon the complaint of any person interested; one
half of the recovery goes to the informer, the other
to the educational fund of the county.
§ 1856. (§ 1613.) Person injured may apply for
survey. — When any person has thus offended in
the manner aforesaid, a person affected thereby
may apply to a magistrate who has jurisdiction in
the district for a warrant of a survey, and shall
also thereupon notify the defendant of the com-
plaint, and. of the time and place of meeting.
§ 1857. (§ 1614.) Proceedings under the war-
rant.— The magistrate shall have summoned three
disinterested freeholders of the neighborhood or
district where the cause of the complaint exists,
one of whom must be chosen by each of the par-
ties, and the other by the magistrate; but if the
defendant neglects before the day of meeting to
make a choice, the magistrate may choose for him;
they must be sworn before such magistrate to de-
termine the matter in dispute justly and impar-
tially, shall proceed to view the obstruction, and
are empowered to do so without the attendance of
either party, unless such are providentially pre-
vented, and must report their proceedings to the
magistrate without delay.
§ 1858. (§ 1615.) Award of freeholders.— If, on
view thereof, a majority of said freeholders decide
that said obstructions do or may prevent the party
complaining from planting his crop of rice in due
time, or otherwise injure him, the}' shall furnish an
immediate remedy in any way they think neces-
sary to give the most effectual relief, the losing
party paying the cost of the proceeding.
[ 433
§ 1859
FLOUR, CORN-MEAL, AND GRAIN
§ 1870
§ 1859. (§ 1616.) Drainage not prohibited.—
Such proceeding does not apply to any person
who shall have made through his own land suf-
ficient drainage, of which said freeholder shall be
the judge, to carry off the waters passing through
the same, in as expeditious a manner as they
could have passed through the natural course or
channels if no such banks had been erected.
As to diversion of water, see § 1853.
§ 1860. (§ 1617.) Proceedings in case of obstruc-
tions.— Any person, between said fifth of March
and the first day of September of each year, may
apply in like manner for warrant of survey on any
obstructions which may impede the conveying of
any surplus water on his rice grounds, and which
by remaining thereon may prove injurious, or
shall keep up any dam which shall stop the
water so as to overflow his lands to his injury. In
such cases the proceedings are the same as here-
tofore set forth.
§ 1861. (§ 1618.) Penalty for stopping up dam. —
If any person shall, by himself or through his or-
ders or by his agent, stop up any dam or replace
any obstruction which has been opened or re-
moved, or which has been thus done by himself
on the said fifth of March until the first day of
July next thereafter, or shall obstruct or hinder
the opening of any dam or removing of obstruc-
tions decided to ibe opened or removed, he forfeits,
as aforesaid in this Article, one thousand, dollars
for each offense to the person aggrieved, besides
his liability for the actual damages.
§ 1862. (§ 1619.) Inadequate dams to be en-
larged.— When any dam has been made to form
reservoirs of water without sufficient wasteway,
and is inadequate to sustain the weight of water,
the owner of such dam shall immediately cause
the same to be enlarged, strengthened, or erected
in a substantial manner, with a sufficient waste-
way. If, on a survey by freeholders, he neglects
to make the improvements they require, within the
time they may designate, he shall forfeit to any
person injured,, or liable to be injured, as last
aforesaid.
§ 1863. (§ 1620.) Compensation of freeholders,
etc. — The freeholders are entitled each to three
dollars per day, and if duly summoned and they
fail to attend, without providential cause or neces-
sary absence from the district, they forfeit to
either party one hundred dollars. The magistrate
and witness, if any, receive the costs allowed in the
trial of forcible entries and detainers.
ARTICLE 3.
Flour, Corn-Meal, and Grain.
§ 1864. (§ 1621.) Inspectors, by whom ap-
pointed.— The ordinaries in the several counties of
this State shall have power to appoint, annually,
one person of good repute to be inspector of flour
in their respective counties, but the same power
may ibe exercised exclusively in any corporate
towns within their corporate limits; vacancies in
such office of inspector may be filled by the ap-
pointing power as soon as may be after the hap-
pening of any vacancy.
As to punishment for neglect of duty, see P. C, § 644.
§ 1865. (§ 1622.) Number of pounds stamped on
each sack. — It shall be the duty of each and every
miller or manufacturer of flour or corn-meal (and
every merchant or dealer), offering for sale said
articles, to stamp or have printed on each sack
in which either of said articles are packed, in plain
figures not less than one and one-half inches in
length, the exact number of pound of flour or
corn-meal contained therein: Provided, the provi-
sions of this section shall not apply to grist
ground for toll. Acts 1890-1, p. 236.
§ 1866. (§ 1623.) Flour shall be merchantable-
All bolted wheat flour and every cask thereof,
brought to the places aforesaid for sale, shall be
made, toy the miller or manufacturer thereof, mer-
chantable and of due fineness, and without mix-
ture of coarse flour, or the flour of any other
grain than wheat.
§ 1867. Flour grits, and corn-meal, how packed
and marked. — All flour, grits, and corn-meal
packed in barrels or half-barrels made of any ma-
terial, or any package made of wood or metal in
which flour, grits, or corn-meal are or may be of-
fered for sale, shall be well made and of good ma-
terial; shall have the net weight of flour, grits, or
meal plainer marked in the head, top, or side of
the barrel or package with a stencil, or paper la- I
bel or pencil, with letters and figures not less than
one inch in length, and the tare marked on the re-
verse end or side of the barrel or package in like
manner. Acts 1906, p. 111.
As to punishment for violating this and the two follow-
ing sections, see P. C, § 565.
§ 1868. Weight in barrels and sacks. — Every
miller, bolter, blender, or mixer, or other person
who manufactures or who buys flour, grits, or corn-
meal for the purpose of repacking, shall put into
each barrel the full quantity and weight of one
hundred and ninety-six pounds of flour, grits, or
corn-meal, and shall put into each half-barrel the
quantity and weight of ninety-six pounds of flour,
grits, or corn-meal.
When flour, grits, or corn-meal is packed in
sacks, the gross weight shall be as follows:
Sacks containing 140 pounds, sacks containing 280
pounds, half-barrel sacks 96 pounds, quarter-bar-
rel sacks 48 pounds, eighth-barrel sacks 24 pounds,
sixteenth-barrel sacks 12 pounds, thirty-second-
barrel sacks 6 pounds.
§ 1869. Variations in weights. — From the
weights above specified variations for inaccuracies
will be allowed as follows: On all packages
weighing ninety pounds or over, an allowance of
one-fourth of one per cent., and on all packages
smaller than ninety pounds an allowance of one-
half of one per cent., less than the weight specified
in the preceding section.
§ 1870. Packages, how marked. — It shall be un-
lawful for any person to pack for sale, sell, or of-
fer for sale any corn-meal except in bags or pack-
ages containing by standard weight two bushels,
or one bushel, or one-half bushel, or one-fourth
bushel or one-eighth bushel, respectively. Each bag
or package of corn-meal shall have plainly printed
or marked thereon, whether the meal is "bolted"
or "unbolted," the amount it contains in bushels or
fraction of a bushel, and the weight in pounds:
Provided, the provisions of this section shall not
[434]
§ 1871
STATE WAREHOUSE DEPARTMENT
§ 1879(4)
apply to the retailing of meal directly to cus-
tomers from bulk stock, when priced and delivered
by actual weight or measure. Acts 1906, p. 118.
As to punishment for violating this section, see P. C,
§ 564.
§ 1871. (§ 1625.) Flour shall be inspected, when.
— All barrels, half-barrels and bags of flour
brought to any place of inspection for sale shall
be submitted to the view and examination of the
inspector, who shall expeditiously inspect the same
by boring into the barrel, half-barrel, or bag, from
head to head, or end to end, with an instrument
of not more than three fourths of an inch in di-
ameter, to be by him provided for that purpose;
and if he shall judge the same well packed and
merchantable, he shall plug the hole and brand
the barrel, half-barrel, or bag with the name of
the place at which he shall be inspector, with a
public brand or mark to be by him provided for
that purpose, and approved by the ordinary, city
council, or corporation, as the case may be, and
shall also mark the degree of fineness which he
shall determine the flour to be on inspection,
which degrees shall be distinguished as follows:
"Extra Family," "Superfine," "Fine," "Middling,"
"First," or "Second." For which trouble the in-
spector shall receive from the owner or consignee
at the rate of five cents per barrel.
§ 1872. (§ 1626.) Fraudulently packing flour.—
If any person shall pack flour in an old barrel
which ma}^ have been marked and branded as
aforesaid, and which shall still have the brand of
the inspector thereon, or shall otherwise fraudu-
lently pack flour for sale, such person or persons
shall forfeit and pay the sum of twenty dollars
for every barrel so packed, to be recovered by an
informer before any justice of the peace, or other
court having jurisdiction thereof — one-half of
such penalty to go to the informer, and the other
half to the miller or manufacturer injured by such
false packing.
§ 1873. (§ 1627.) Inspector can not purchase. —
No inspector shall be permitted, directly or in-
directly, to purchase any flour by him condemned
as unmerchantable, or any other flour whatever,
other than for his own or family use and consump-
tion, under the penalty of thirty dollars for every
barrel by him purchased, to be recovered by any
informer before any justice of the peace, or other
court having jurisdiction; one half of which shall
belong to the informer, and the other half to the
county or corporation having the appointment of
the inspector.
§ 1874. (§ 1628.) Selling without inspection. —
Any person who shall sell flour in or from any of
the places where there is an inspector, without an
inspection as aforesaid, shall forfeit and pay the
sum of ten dollars for each barrel, half-barrel, or
bag so sold, to be recovered by an informer before
any justice of the peace, or other court having ju-
risdiction; one half to go to the informer and the
other half to the inspector.
§ 1875. (§ 1629.) Inspector's oath. — Every in-
spector, before entering on the duties of his of-
fice, shall take and subscribe an oath or affirma-
tion before the clerk of the council, or ordinary, of
which a minute shall be made, that he will faith-
fully perform the duties of his office, inspect all
flour offered to him for inspection, and faithfully
brand and mark the barrels or bags as by law di-
rected.
§ 1876. (§ 1630.) Corn-meal, corn, and other
grain. — Every inspector of flour shall inspect In-
dian corn and corn-meal, wheat, and other grain
in bags or in barrels, or in bulk, when requested
by the owner or consignee to do so, and he shall
brand only such as he may deem to be sound and
merchantable, for which his compensation shall
be three cents per bag or barrel, and, when the
grain inspected is in bulk, the sum of twenty-five
cents per car-load, to be paid by the owner or con-
signee, as aforesaid. Acts 1880-1, p. 77.
As to inspection fees, see § 2110.
ARTICLE 4.
Mills and Millers.
§ 1877. (§ 1631.) Grain to be ground in turn.— All
owners or occupants of mills shall well grind all
clean and dry grain, and in due turn, as far as ten
bushels in the turn, as the same may be brought,
and may take for toll one-eighth part thereof.
§ 1878. (§ 1632.) Penalty for not grinding in
turn. — Every such person who shall not so grind,
except in time of drought, or for other sufficient
cause, or not in due turn, or take or exact more
toll, shall forfeit and pay for such offense, to the
party injured, twenty dollars: Provided, such mil-
ler may do his own grinding first.
§ 1879. (§ 1633.) What are public mills. — All
grist-mills which grind for toll for any person are
public mills within the meaning of this Article.
CHAPTER 3A.
State Warehouse Department.
§ 1879(1). State warehouse commissioner. — The
Director of the State Bureau of Markets shall be
the State Warehouse Commissioner. Acts 1920, p.
282.
§ 1879(2). Duties of warehouse commissioner. —
It shall be the duty of said warehouse commis-
sioner to study the condition under which cotton is
grown, harvested, ginned, baled, covered, stored
and marketed, and as a result of such investigation
to organize a system that will bring about needed
reforms, and provide for the most economical and
scientific handling of this crop from the fields to
the mill and when he has determined upon the best
system of ginning, baling and covering, to recom-
mend its adoption by all ginners as fast as practic-
able, without undue expense. Acts 1918, p. 247;
1920, p. 282.
As to the penalty for the violation of this act, see § 701
(3), P. C.
§ 1879(3). Standard classifications. — The ware-
house commissioner shall accept as authoritative
the standard and classifications of cotton estab-
lished by the Federal Government. Acts 1918, p.
247; 1920, p. 282.
§ 1879(4). May acquire property; duty to encour-
age erection of warehouses. — The warehouse com-
missioner shall have power to acquire property. It
[435]
1879(5)
STATE WAREHOUSE DEPARTMENT
(§ 1879(16)
shall be his duty to foster and encourage the erec-
tion of warehouses in the various counties of the
State, upon plans and specifications adopted by the
board. Acts 1918, p. 247; 1920, p. 282.
§ 1879(5). Employees. — ■ The warehouse com-
missioner shall have the power to appoint graders,
officers, clerks and all necessary employees to carry
out the provisions of this Act and fix the salaries of
same. He shall also have the power, and is hereby
directed, to safeguard the interests of the State by
requiring bonds from such officers, clerks and em-
ployees, for the performance of their duties. He
shall also prescribe rules and regulations not in-
consistent with the intent and spirit of this Act, to
carry the same into effect. Acts 1918, pp. 247, 248;
1920, p. 282.
§ 1879(6). Corporate powers and liabilities;
suits; limitations. — The warehouse commissioner
shall have power to sue and be sued, plead and be
impleaded, upon the same terms as an individual or
corporation, the action to be against or by the com-
missioner, and not as an individual, except in case
of tort or neglect of duty, when the action may be
upon the bond of the officer charged with such tort
or neglect of duty. Suits may be brought in the
County of Fulton, or in the county in which the
cause of action arises; provided, however, that the
weights, classes and grades of cotton on storage
are, under this Act, only guaranteed by the com-
missioner in favor of those who lend money or buy
cotton through the State warehouse board; pro-
vided further, that the board shall not be respon-
sible for such fluctuation in weight as represents
ordinary climatic conditions. Provided further,
that cotton designated as "linters" shall not be re-
ceived for storage under the provisions of this Act.
Acts 1918, pp. 247, 248.
§ 1879(7). Cotton storage, receipts, etc. — The
warehouse commissioner may receive for storage
lint cotton, properly baled, with an inspection tag
showing that it has been legally weighed, and that
a Federal or State grader, as hereafter may be pro-
vided, has graded said cotton. There shall be re-
ceipts issued for such cotton under the seal in the
name of the said commissioner, stating location of
warehouse, identification mark on each bale, its
weight and grade, and whether long or short
staple, so as to be able to deliver on surrender of
receipts the identical cotton for which it was given;
the receipt for cotton so stored to be transferable
only by written assignment and actual delivery;
the cotton which it represents to be delivered only
upon physical presentation of the receipt, or satis-
factory proof of loss of Same, The receipt shall be
marked "cancelled" when the cotton is taken from
the warehouse. Acts 1918, pp. 247, 248.
§ 1879(8). Tags. — The grades, weights and
identification marks herein provided for shall be
evidenced by tags affixed to the bale of cotton, and
the receipts issued must be duplicate of the
identification upon the said tags. Acts 1918, pp.
247, 249.
§ 1879(9). Rate of storage. — The warehouse com-
missioner shall settle the terms upon which cotton
may be stored in the local warehouse coming under
this Act, and fix the rate of storage thereon in such
manner that these warehouses shall pay expenses,
it being the declared purpose of this Act that the
system shall be self-sustaining and without cost to
the State. Acts 1918, pp. 247, 249.
§ 1879(10). Loans or sales. — The warehouse
commissioner may, upon the request of the owner
of warehouse receipts, negotiate loans upon the
same, or make sale of the cotton on storage, and
shall, as soon as practicable after the passage of
this Act, notify the holders of cotton of the steps
which will be necessary to avail themselves of aid
in obtaining loans upon cotton or making sale
thereof. Acts 1918, pp. 247, 249.
§ 1879(11). Compress. — The warehouse com-
missioner shall have the right to erect, buy, lease,
or otherwise contract for a compress plant, or
make contract or contracts with existing compress
owners for the compression of cotton, as may be
necessary in the conduct of the business hereunder.
Acts 1918, pp. 247, 249.
§ 1879(12). Charges. — The warehouse commis-
sioner shall provide for the cost of maintaining this
system by assessing a charge upon each bale of
cotton offered for storage, and for negotiation of
loans or selling cotton, a commission, all of which
charges shall be uniform, and due notice thereof
given, it being the declared purpose of this Act to
operate at cost, without profit to the State. Acts
1918, pp. 247, 249.
§ 1879(13). Annual reports to legislature. — The
Warehouse commissioner shall make an annual re-
port to the General Assembly, setting forth, viz:
(a) Number and location of each warehouse
where cotton has been received for storage by the
State.
(b) Cotton on storage and that delivered on
presentation of receipts.
(c) Such further information as the board may
think would be of benefit to the public. Acts 1918„
pp. 247, 249.
§ 1879(14). Bond of commissioner. — The Ware-
house Commissioner shall give bond payable to the
Governor and his successors in office for the faith-
ful performance of his duties, in the sum of $25,-
000.00. the cost of said bond to be paid by the com-
missioner; said bond to be approved as other
(bonds of State officers. Acts 1918, pp. 247, 250.
§ 1879(15). Receipts; seal.— The Warehouse
receipt books shall be designed by the warehouse
commissioner and furnished the manager of each
warehouse. Receipts must be numbered, and the
warehouse receiving such book must be account-
able for each receipt. The receipts in such books
may have the lithographed or engraved signature
of the State Warehouse Commissioner, but the
name of the manager of the local warehouse shall
be signed by said manager with pen and ink. The
State Warehouse Commissioner shall have a seal,
which must be affixed to each receipt. Acts 1918,
pp. 247, 250.
§ 1879(16). Investigation of liens and titles. — If
the warehouseman to whom cotton is offered for
storage has cause to believe there is an adverse lien,
title, or claim to such cotton, it is hereby made his
duty to make reasonable investigation, and to that
[ 436 ]
§ 1879(17)
WEIGHTS AND MEASURES
§ 1883
end he may require the party so offering such
cotton for storage to make affidavit in writing as to
such liens, adverse title of claims; should such
party make false affidavit he shall, on conviction
therefor, be punished as now prescribed for false
swearing. Any transferee or holder for value of any
receipt issued under this Act, without notice of any
adverse lien, title or claim to the cotton represented
by such receipt shall have a superior claim to such
cotton as against such adverse lien, title or claim,
unless the holder of such adverse lien, title or claim
within seven days after the date on which such
cotton was so stored in such warehouse, begin ac-
tion on such lien, title or adverse claim in some
court of competent jurisdiction, and give to the
warehouse where such cotton is stored written no-
tice of such action. Acts 1918, pp. 247, 251.
As to the penalty for the violation of this act, see §
701 (1), P. C.
§ 1879(17). Interstate board.— It shall be the
duty of the warehouse commissioner to co-operate
with other states where a state warehouse system
is in operation, and to promote the formation of an
interstate board, so that there may be uniformity
in handling and marketing the crop in all the
states, and the Commissioner is authorized to
spend such sums as may be necessary for this pur-
pose. Acts 1918, pp. 247, 251.
§ 1879(18). No State debt.— It is hereby declared
that no debt shall be created against the State by
reason or operation of this Act. Acts 1918, pp.
247, 252.
§ 1879(19). Fire insurance. — The State Ware-
house Commissioner shall insure against fire all
buildings, machinery, or other property owned b}r
him in the name of the State; or where said com-
missioner may be requested, they shall have in-
sured all buildings, machinery leased, owned, or in
his possession other than the State's property
when requested to do so by the owners thereof.
Further, it shall be the duty of said commissioner
to effect fire insurance on cotton that may be in-
sured in said warehouses when so requested by the
owner or owners thereof in the name of the owner.
All insurance obtained by said commissioner under
the provisions of this section shall be placed in fire
insurance companies authorized by law to do busi-
ness in this State, and provided further, that no
commissioner shall act in any capacity for any in-
surance company, or receive any compensation
from any insurance company, insurance agent,
broker, or any person representing any insurance
company as aforesaid, by division of commission,
or otherwise, in connection with the placing of any
insurance. Acts 1918, pp. 247, 252.
§ 1879(20). Expenses; deposits. — The State
Warehouse Commissioner, when away from home
in the discharge of his duties, shall be paid his
actual expenses, for which there shall be filed an
itemized account. The expenses of other officers
acting under his direction shall be paid in the same
manner, upon the approval of the State Warehouse
Commissioner. All sums collected under this law
shall be deposited with the State Treasurer, who
shall keep a separate account of same. Acts 1918,
pp. 247, 252.
CHAPTER 4.
Weights and Measures.
§ 1880. (§ 1634). Legal weights declared.— The
legal weight of the following articles or commodi-
ties per bushel shall be as follows: Of wheat, sixty
pounds; of shelled corn, fifty-six pounds; of corn
in the ear, seventy pounds; of peas, sixty pounds;
of rye, fifty-six pounds; of oats, thirty-two pounds;
of barley, forty-seven pounds; of Irish potatoes,
sixty pounds; of sweet potatoes, fifty-five pounds;
of white beans, sixty pounds; of clover-seed, sixty
pounds; of timothy-seed, forty-five pounds; of flax-
seed, fifty-six pounds; of hemp-seed, forty-four
pounds; of blue-grass seed, fourteen pounds; of
buckwheat, fifty-two pounds; of dried peaches (un-
peeled), thirty-three pounds; of dried peaches
(peeled), thirty-eight pounds; of dried apples,
twenty-four pounds; of onions, fifty-seven pounds;
of stone coal, eighty pounds; of unslacked lime,
eighty pounds; of turnips, fifty-five pounds; of
corn-meal, bolted or unbolted, forty-eight pounds;
of wheat-bran, twenty pounds; of cottonseed,
thirty pounds; of ground-peas, twenty-five
pounds; of plastering hair, eight pounds; of rough
rice, forty-three pounds; of tan-bark, per cord, two
thousand two hundred and fifty p*ounds. Acts 187C>,
p. 107; 1880, p. 150; 1894, p. 110; 1906, p. 118.
In the absence of express agreement otherwise the law
fixes the weight of sweet potatoes at 55 pounds to the bushel.
Fain v. Ennis, 4 Ga. App. 716, 62 S. E. 466.
§ 1881. (§ 1635.) Seal or stamp for marking
weights and measures. — The ordinaries must pro-
cure for their respective counties a marking instru-
ment, seal or stamp, for the purpose of marking all
weights and measures which they may find not to
weigh or measure less than the standard estab-
lished by the Congress of the United States, which
is the standard of this State.
§ 1882. (§ 1636.) Penalty for selling by un-
marked weights. — All persons engaged in selling
by weights and measures shall apply to the ordi-
naries of their respective counties and have their
weights and measures so marked, and in default
thereof shall not collect more than three fourths of
any account, note or other writing, the considera-
tion of which is any commodity sold by their
weights and measures: Provided, this section shall
not apply to any person selling by weights and
measures who has applied to the ordinary of his
county and found that the county has not been sup-
plied with the necessary standards for testing
weights and measures. Acts 1893, p. 31.
Section Does Not Apply to Buyers.— Sections 1882 1885
are not by their terms universal. They do not apply to
persons engaged in buying by weights and measures.
Southwestern R. Co. v. Cohen, 49 Ga. 627, 628.
Section Not Extended.— This section fixes a penalty and
should not be extended beyond its terms. Southwestern
R. Co. v. Cohen, 49 Ga. 627, 628.
Weights Not Tested, Reduction Allowed.— Where it ap-
pears that the weights and measures had not been tested,
a reduction should be allowed on suit on open account.
Carter v. Pitts. 125 Ga. 792, 54 S. E- 695.
The burden of proof of violation of this section is upon
the defendant pleading it. Patillo v. Smith, 61 Ga. 265.
§ 1883. (§ 1637). Selling by deficient weights or
measures, how punished. — Any citizen may
complain to the ordinary of the deficiency of any
weights and measures, whether marked or not,
and when done it is the duty of said ordinary to
[437
§ 1884
PEDDLING
§ 1886
notify the person complained of, and give him the
name of the complainant, and specify a day, not
more than ten days distant, when he shall submit
his weights and measures to the test of the ordi-
nary; and if the complaint is found to be true with-
in the seller's knowledge, he shall be deemed a
person selling by false weights and measures, and
shall be presented by the grand jury as such, if no
person appears and indicts.
§ 1884. (§ 1638). Standards of weights and
measures to be procured. — The Governor shall
procure standards of weights and measures for
each county which does not have them, and they,
together with the marks provided by the ordinary,
shall be kept in his office for the inspection of the
citizens.
§ 1885. (§ 1639.) Ordinary to give notice. —
When such standards are obtained, it is the duty of
such ordinary to give sixty days written notice
thereof at the door of the court-house, and in the
public gazette where the sheriff of the county ad-
vertises his sales.
The ordinaries who are required by this section to give
notice by publication and otherwise when standard weights
and measures are obtained by them will be presumed to
have given such nptice. Nor would a failure to give
such notice relieve the citizen from his obligation to have
his weights and measures duly marked. Finch v. Bar-
clay, 87 Ga. 393, 13 S. E). 566.
CHAPTER 4A.
Cotton Standards.
§ 1885(1). Official standards of United States.
— The official cotton standards of the United States
as established and promulgated from time to time
by the Secretary of Agriculture of the United
States shall, while they are in effect, be the official
cotton standards of this State. Acts 1920, pp. 129,
130.
§ 1885(2). Names of grades. — It shall be unlaw-
ful, in or in connection with any transaction
or transactions in commerce subject to the
jurisdiction of this State or in any publication
in this State of a price or prices for or in connection
with such transaction or transactions, for any in-
dividual partnership, association, or corporation to
indicate the grade of any cotton which is of or
within the grades of the said official cotton stand-
ards by any name, description, or designation or
any system of names, descriptions, or designations
not used in said standards. Nothing in the previous
section is intended to prohibit selling cotton against
type. Acts 1920, pp. 129, 130.
CHAPTER 4B.
Statistics on Leaf Tobacco.
§ 1885(3). Accounts of sales. — The proprietor of
each and every leaf tobacco warehouse doing busi-
ness in this State shall keep a correct account of the
number of pounds of leaf tobacco sold upon the
floor of his warehouse daily. Acts 1921, p. 210.
§ 1885(4). Weekly reports of warehouses. — On
or before the Monday of each succeeding week the
said warehouse proprietor shall make a statement,
under oath, of all the tobacco so sold upon the
floor of his warehouse during the past week and
shall transmit the said statement, at once to the
Commissioner of Agriculture at Atlanta, Georgia.
The reports so made to the Commissioner of
Agriculture shall be so arranged and classified as
to show the number of pounds sold for the pro-
ducers of tobacco from first hand; the number of
pounds sold for dealers, and the number of pounds
resold by the proprietor of the warehouse for his
own account, or for the account of some other
warehouse. Acts 1921, p. 210.
§ 1885(5). Records. — The Commissioner of
Agriculture shall cause said statement to be ac-
curately copied into a book to be kept for this pur-
pose, and shall keep separate and apart the state-
ments returned to him from each tobacco market
in this State, so as to show the number of pounds
of tobacco sold by each market for the sale of leaf
tobacco; the number of pounds sold to producers,
and the number of pounds resold upon each
market. And the said Commissioner of Agricul-
ture shall keep said books open to the inspection of
the public, and shall on or before the tenth day of
each month, and after the receipt of the reports
above required to be made to him, on or before the
fifth day of each month, cause the said reports to be
published in the Bulletin issued by the Agricultural
Department, and in one or more journals published
in the tobacco section of the State of Georgia. Acts
1921, p. 210.
§ 1885(6). Penalty. — Any . warehouse failing to
make the report as required by section 1885(4) shall
be subject to a penalty of twenty-five dollars and
the costs of the case, to be recovered by any per-
son suing for same in any Court of a Justice of the
Peace, and the Magistrate in whose Court the
matter is adjudicated shall include in the costs of
each case where the penalty is allowed, one dollar^
to be paid to the Department of Agriculture for ex-
pense of advertising. Acts 1921, p. 210.
§ 1885(7). Failure to comply; publication of
names. — The Commissioner shall on the twelfth
day of each month publish in some Georgia news-
paper, the names of the tobacco warehouses that
have failed to comply with this Act. Acts 1921, p.
210.
§ 1885(8). Commissioner's certificate admissible
as evidence. — The certificate of the Commissioner
under the seal of the Department shall be admissi-
ble as evidence the same as if it were his deposition
taken in form as provided by law. Acts 1921, pp.
210, 211.
CHAPTER 5.
Peddling.
§ 1886. (§ 1640.) License to peddle. — Every
peddler or itinerant trader, by sample or otherwise,
must apply to the ordinary of each county where he
may desire to trade, for a license, which shall be
granted to him on the terms said ordinary has or
may impose. They are authorized to impose such
tax as they may deem advisable, to be used for
county purposes. The license extends only to the
limits of the county. •
Peddling without License. — For analogous sections in-
cluding, peddling without license, right of taxpayer to de-
[ 438
§ 1887
PEDDLING
§ 1890
mand license, and punishment of violations, see §§ 533 to
535.
Who Is a Peddler. — A peddler is one who goes from place
to place exhibiting his wares and actually selling them
whenever he finds the opportunity. Kimmell v. Ameri-
cus, 105 Ga. 694, 31 S. E. 623; Singleton v. State, 14 Gi.
App. 527, 531, 81 S. E. 596.
A peddler or hawker is in contradistinction to a trader
who has goods for sale and sells them in a fixed place of
business. Gould & Co. v. Atlanta, 55 Ga. 678, 689; Single-
ton v. State, 14 Ga. App. 527, 531, 81 S. E. 596.
Same — Agent Selling by Samples. — An agent engaged in
going from house to house, carrying samples of curtains
and rugs, and taking orders for such goods, which or-
ders are filled by his principal, is a peddler. Kimmel v.
Americus, 105 Ga. 694, 31 S. E. 623; Wrought Iron Range
Co. v. Johnson, 84 Ga. 754, 11 S. E- 233.
Same — Employers of Agents Not Peddlers. — Only the
person who itinerates for trading purposes is a peddler.
His employer, though owning the goods, team and vehi-
cle, is not required to obtain a license, nor subject to any
penalty or forfeiture for failing to do so. Wrought Iron
Range Co. v. Johnson, 84 Ga. 754, 11 S. E. 233.
Fixed Place of Business. — No person bringing a large
stock of goods into a town, opening a house, and selling
them out therein is considered a peddler. Gould & Co. v.
Atlanta, 55 Ga. 678, 687.
Scheme to Evade Law — Both Parties Liable. — When one
person travels through the country as an itinerant, ex-
hibiting samples of goods and taking orders for goods of
like character, and another follows in his wake delivering
the goods thus sold, both should be regarded as peddlers
when it appears that the business was thus conducted in
pursuance of a scheme to evade the law of this State re-
quiring peddlers to register and pay taxes. Duncan v.
State, 105 Ga. 457, 30 S. E. 755.
Section Does Not Include Tax on Bananas. — A tax upon
peddlers of bananas is not authorized under this section;
for bananas are agricultural products. And in the pres-
ent case it appears from an agreed statement of facts
that the bananas which the defendant in error was taxed
for peddling were raised in Louisiana, Florida, and Cal-
ifornia. Chatolis v. Phillips, 142 Ga. 456, 83 S. E. 106.
§ 1887. (§ 1641). Exceptions. — None of the
provisions of this Article shall extend to persons
selling the agricultural products of any State, nor
to persons selling agricultural implements, nor to
persons engaged in the manufacturing and selling
of jugs and flower-pots within the State of Georgia.
Acts 1887, p. 33.
As to the penalty for the violation of this act, see § 476
(5), P. C.
§ 1888. (§ 1642.) Disabled soldiers to peddle
without a license.— Any disabled or indigent Con-
federate soldier or soldiers of the Seminole, Creek
or Cherokee Indian War, or Mexican war, Span-
ish-American war, or late European war, or blind
person who is a resident of this State, may peddle
or conduct business in any town, city, county, or
counties thereof without paying license for the
privilege of so doing, and a certificate from the
ordinary of any county stating the facts of his being
such disabled or indigent Confederate soldier, or
soldiers of the Seminole, Creek or Cherokee Indian
war, or Mexican war, Spanish-American war, or
the late European war, or blind person, who is a
resident of this State, shall be sufficient proof; pro-
vided, that this Section shall not authorize peddling
or dealing in ardent and intoxicating drinks, or
running a billiard, pool or other table of like
character, or dealing in futures, or peddling stoves,
clocks, or carrying on the business of a pawn-
broker or auctioneer, or dealing in lightning-rods;
and provided, further, that the privileges hereby
granted shall not be transferred to or used by any
other person. Acts 1897, p. 24; 1894, p. 46; 1918, p.
116; 1919, pp. 90, 91.
Cross References. — As to peddling without license, see §
533. As to Confederate soldiers' exemption from tax on
auctioneers, see § 923; on practice of medicine, see § 995.
As to parks exempt from tax when owned by Confederate
soldier, see § 996.
Editor's Note. — This seotion has been amended twice
since it appeared in the Code of 1911. First by the Acts
of 1918 (Acts 1918, p. 116) which added blind persons to
the list of those who are not required to have a license
to conduct certain business, and, second, by the Acts of
1919 (Acts 1919, p. 90) which added soldiers of the Span-
ish American War and the late European War to such
list.
Indigency or Disability. — This section is applicable to
those soldiers who are either disabled or indigent, and it
need not appear in a given case that the soldier is both
disabled and indigent and in such a case it need not ap-
pear that the person's disability was brought about by
service in the army. Holliman v. Hawkinsville, 109 Ga.
107, 34 S. E. 214.
Certificate Prima Facie Evidence. — A certificate from an
ordinary, such as is provided for in this section, is at least
prima facie evidence that the recipient is a disabled sol-
dier, and becomes conclusive of the fact when there is no
evidence to the contrary. Holliman v. Hawkinsville, 109 Ga.
107, 34 S. E- 214.
Not Exempt from Reasonable Regulations. — Indigent Con-
federate soldiers who have paid the State tax on the sale of
"near beer" are exempt from the payment of municipal li-
cense fees imposed upon that business, but they are not ex-
empt from the operation of such other reasonable regula-
tions as the municipality may impose upon those engaging
therein. Campbell v. Thomasville, 6 Ga. App. 212, 64 S.
E. 815.
Business Can Not Be Conducted in Cities Which Pro-
hibits Same. — The fact that defendant had the right to
conduct business in any city or county of the State of
Georgia, without paying a license for the privilege of so
doing, under the provisions of this section, did not au-
thorize him to conduct within the limits of a city a busi-
ness prohibited by proper ordinance, in the exercise of the
police power inherent in the municipality. Killebrew v.
Wrightsville, 18 Ga. App. 16, 88 S. E- 708; S. C, 17 Ga.
App. 809, 88 S. E. 590.
Employees of Veteran Also Exempt. — A person entitled
to exemption by this section may employ clerks and other
employees in the operation of the business which his cer-
tificate authorizes him to conduct. Such employees are,
as a matter of course, protected by the certificate, and
can not themselves be called on to pay the license. An-
glin v. State, 12 Ga. App. 159, 76 S. E. 992; Hartfield v.
Columbus, 109 Ga. 112, 34 S. E. 288.
But under the provisions of § 946 of the Code of 1910
[§ 946 has been repealed, but is practically identical with
the first paragraph of § 993 (99) of this Code] it was held
that the agent of a Confederate veteran, was liable for
tax imposed by that section upon the peddling of patent
medicines, even though the veteran was entitled to ex-
emption under this section. Smith v. Whiddon, 138 Ga.
471, 75 S. E- 635, affirmed in Woodson v. Paulk, 139 Ga.
783, 787, 78 S. E. 35.
In Woodson v. Paulk, 139 Ga. 783, 784, 78 S. E. 35, the
court distinguishes the Hartfield case and the Smith case,
which are cited in the two preceding paragraphs. The
reconciliation of these cases is based on the difference be-
tween the meaning of the words "conducting business"
and "peddling." The court rules, in this case, that "ped-
dling" is not covered by "business" as used in this sec-
tion, and substantiates this rule by the fact that both
words are used in the section. — Ed. Note.
Injunction to Restrain Fi. Fa. — An injunction may be
had to restrain a sale of the personal property of a disa-
bled Confederate soldier levied on under a fi. fa. issued by
a municipality for a business tax. Coxwell v. Goddard,
119 Ga. 369, 46 S. E. 412.
§ 1889. (§ 1643.) What other Confederate sol-
diers may peddle without license. — All Confederate
soldiers who are over the age of fifty years, and
who have resided in this State for three years next
preceding the filing of their applications, as herein-
after provided, are authorized to conduct the busi-
ness of traveling life-insurance agents or solicitors,
and fire-insurance agents or solicitors, and peddle
in the State without first obtaining a license there-
for from the State or any county or municipality
thereof, and without being subject to any tax there-
for. Acts 1893, p. 114; 1895, p. 93; 1897, p. 25.
§ 1890. (§ 1644). Oath required of such.— Be-
[439]
1891
REAL ESTATE BROKERS AND SALESMEN
§ 1896(4)
fore any such Confederate soldier shall avail him-
self of the privilege, he shall go before the ordinary
of the county wherein he resides, and make oath in
writing that he served as a soldier in the Confeder-
ate army or navy stating in what company and reg-
iment or command, that he is over fifty years of
age, and has resided in this State three years next
preceding the filing of said affidavit; he shall also
state what business he proposes to conduct, and,
if he proposes to peddle, shall state that the busi-
ness which he proposes to carry on is his own, and
that he will not sell, or offer to sell, any article for
another, directly or indirectly. Acts 1893, p. 114;
1895, p. 93.
As to affidavit to obtain exemptions, see § 997.
§ 1891. (§ 1645.) Certificate of authority. —
Upon making and filing the affidavit provided for
in the preceding section, the ordinary shall issue a
certificate stating that said Confederate soldier has
taken the oath prescribed by law, which certificate
shall authorize the Confederate soldier making
such affidavit and holding such certificate to con-
duct the business hereinbefore designated, in any
county or municipality in this State, without pro-
curing a license or being subject to any tax there-
for: Provided, he shall not sell whisky or sewing
machines. Acts 1893, p. 114; 1895, p. 93.
§ 1892. (§ 1646.) What Confederate soldier
may do without license.-— Any disabled Confederate
soldier of this State, who is a daguerrean, ambro-
type, photographic, or similar artist, may carry on
such business in any county without paying license.
A certificate from the ordinary of any county stat-
ing the fact of his being such disabled Confederate
soldier shall be sufficient evidence thereof. The
privileges hereby granted shall not be transferable,
and shall not extend to any person who, in the con-
duct of such business, has as many as three em-
ployees. Acts 1892, p. 99.
§ 1893. (§ 1647.) Qualifications and oath of
peddler. — Every peddler shall furnish said ordi-
nary with evidence of his good character, and shall
take and subscribed before him this oath: "I swear
that I will use this license in no other county than
the one for which it is granted, nor suffer any per-
son to use it in my name, and that I am a citizen of
this State. So help me God." Said oath and
license must be entered in the book kept for that
purpose, and the license must contain a description
of the person of the peddler.
Under the provisions of this section, a corporation can
not be licensed as a peddler. And the fact that a cor-
poration has paid the fee required by law does not author-
ize an employee, servant, or agent of the corporation, to
peddle without personal compliance with the requirements
of the section. Singleton v. State, 14 Ga. App. 527, 81
S. E- 596; Wrought Iron Range Co. v. Johnson, 84 Ga.
754, 755, 11 S. E- 233.
§ 1894. (§ 1648.) Must be a license for each
vehicle. — There shall be separate license for every
wagon, cart, or other vehicle (or each horse, if the
peddling is clone on horseback) employed or used
in vending such goods, wares, or merchandise,
which shall be shown to any officer, civil or mili-
tary, demanding it; and on failure or refusal so to
exhibit, the peddler forfeits five hundred dollars, to
be recovered on suit of the informer — one half to
go to the informer, the other to the educational fund
of the county.
As to right of taxpayer to demand license, see § 534.
§ 1895. (§ 1649.) Authority of ordinary.— Ordu
naries are authorized to grant licenses to peddle to
indigent and infirm persons, upon such terms as
they in their discretion may impose.
The grant by the ordinary of Fulton county of a license
under this section, does not relieve such person from the
necessity of obtaining a city license from the municipal
authorities of the City of Atlanta, it not appearing that
the person claiming exemption from license was a Con-
federate veteran, or a veteran of any other war. Justice
v. Atlanta, 122 Ga. 152, 50 S. E. 61.
§ 1886. (§ 1650.) Foreigners.— A foreigner, not
a citizen, shall not be granted license to peddle, un-
less he shall have declared his intention to become
a citizen, and he shall swear to such fact instead of
that he is a citizen.
CHAPTER 5A.
Installation and Sale of Lightning Rods.
§ 1896(1). Unlawful act without license. — It
shall be unlawful for any person to erect or install
upon any building or other structure within this-
State any lightning rods except he be duly licensed
by the State as hereinafter provided. Acts 1918, p.
171.
§ 1896(2). License from comptroller-general. —
Before any person shall be authorized to erect or
install any lightning rods upon any building or
other structure in this State, such person shall pro-
cure from the Comptroller-General a license
authorizing him to erect and install lightning rods
within county in which such building or structure
is located, for which such person shall pay a license
of twenty dollars ($20.00) and for each additional
county in which such person shall so act, the sum
of ten ($10.00) dollars. The application for such
licenses shall be made in writing to the Comp-
troller-General and as a prerequisite to its issuance,
the applicant must satisfy the Comptroller-General
that he is a person competent to properly erect
lightning rods, and a certificate to that effect from
a firm, corporation or person engaged within the
United States in the manufacture and sale of light-
ning rods, shall be sufficient, provided its execution
be proven by affidavit before a notary public, or
some other officer authorized by law to administer
oaths, and having official seal, may be taken by the
Comptroller-General as prima facie evidence of the
competency of such applicant. Each license so
issued shall continue in effect until the next suc-
ceeding thirty-first day of December of each year.
The money arising from the collection of such tax,
shall be paid into the State treasury by the Comp-
troller-General. Acts 1918, pp. 171, 172.
§ 1896(3). Contract of sale. — All lightning rods
sold at retail within this State, must be sold by the
job, that is, the contract therefor must state in dol-
lars and cents the aggregate total amount to be
charged and collected therefor. Acts 1918, p. 172.
CHAPTER 5B.
Real Estate Brokers and Salesmen,
§ 1896(4). Licenses in certain counties. — It
shall be unlawful for any person, firm, partnership
[ 440 ]
§ 1896(5)
REAL ESTATE BROKERS AND SALESMEN
§ 1896(10)
association, co-partnership or corporation, whether
operating under an assumed name or otherwise, to
engage in the business or capacity either directly or
indirectly of a real estate broker, or real estate
salesman within any county in this State having a
population of 44,195 or more according to the
United States census of 1920 or any future census
without first obtaining a license under the provi-
sions of this Act. Licenses shall be granted only
to persons who are trustworthy and 'bear a good
reputation for honesty and fair dealing, and are
competent to transact the business of a real estate
broker, or real estate salesman, in such a manner as
to safeguard the interest of the public, and only
after satisfactory proof thereof has been presented
to the Georgia Real Estate Commission. Acts
1925, p. 325.
As to the penalty for the violation of this act, see § 476 (10),
P. C.
§ 1896(5). "Real estate broker" and "real estate
salesman" defined; provisions, where inapplicable.
— Whenever used in this article, "real estate
'broker" means any person, firm or corporation,
who, for another and for a fee, commission or
other valuable consideration, sells, exchanges, buys,
rents, or offers or attempts to negotiate a sale,
exchange, purchase, or rental, of any estate or in-
terest in real estate, or collects, or offers or at-
tempts to collect rent for the use of real estate.
A "real estate salesman" means a person em-
ployed by a licensed real estate broker to sell or
offer for sale, to buy or offer to buy, to negotiate
the purchase, sale or exchange of real estate, or to
lease, rent, or offer to lease, rent or place for rent
any real estate for or on behalf of such real estate
broker.
The provisions of this Act shall not apply to any
person, firm or corporation, who, as owner or
lessor, shall perform any of the acts aforesaid with
reference to property owned by them. Nor shall
the provisions of this Act apply to persons, firms,
or corporations, not real estate brokers or real
estate salesmen, holding a duly executed power of
attorney from the owner for the sale, leasing or ex-
changing of real estate; nor shall said provisions be
held to apply to a receiver or trustee in bankruptcy,
an administrator, or executor, or trustee, or any
person selling real estate under order of court, or
pursuant to the terms of a will, mortgage, or deed
of trust, or deed to secure a debt. Acts 1925, pp.
325, 326.
§ 1896(6). Real estate commission created. —
The Georgia Real Estate Commission is hereby
created. The Governor shall appoint three per-
sons, two of whom shall constitute a quorum, who
shall have been residents of the State of Georgia
for a period of at least ten years and whose voca-
tion for a period of at least five years prior to the
date of their appointment shall have been that of a
real estate broker. One member shall be appointed
for the term of one year, one member shall be ap-
pointed for the term of two years, and one mem-
ber shall be appointed for the term of three years,
the terms to begin January 1, 1926. And there-
after the term of the members of said commission
shall be for 'three years and until their successors
are appointed and qualified. Members filling
vacancies shall be appointed by the Governor for
the unexpired term. The first meeting of the mem-
bers of said commission shall be held on the first
Tuesday in January, 1926, and the said commission
shall organize by selecting from its members a
president and said commission may do all things
necessary and convenient to carry into effect the
provisions of this Act and may from time to time
promulgate necessary rules and regulations. The
commission shall thereafter meet at least once a
month, and remain in session as long as the chair-
man thereof shall deem it necessary to give full
consideration to the business before the commis-
sion. Acts 1925, pp. 325, 327.
§ 1896(7). Secretary; counsel; quarters, etc. —
The commission shall at its pleasure employ a
secretary and treasurer, and such clerks and assist-
ants and attorneys as shall be deemed necessary to
discharge the duties imposed by the provisions of
this act, and shall outline their duties and fix their
compensation, subject to the general laws of this
State. Any of said officers, assistants or attorneys
may be discharged by said commission at any time.
The commission shall obtain such office space,
furniture, stationery, fuel, lights and other conveni-
ences as shall be reasonably necessary to carry out
the provisions of the same. Acts 1925, pp. 325, 328.
§ 1896(8). Seal; records. — The commission shall
adopt a seal, with such design as the commission
may prescribe engraved thereon, by which it shall
authenticate its proceedings. Copies of all records
and papers in the office of the commission duly cer-
tified and authenticated by the seal of the commis-
sion shall be received in evidence in all courts
equally and with like effect as the original. All rec-
ords kept in the office of the Commission under
authority of this act shall be open to public inspec-
tion under such rules and regulations as shall be
prescribed by the commission. Acts 1925, pp. 325,
328.
§ 1896(9). Funds; expenses. — All funds pro-
vided for by this act shall be paid to and receipted
for by the Treasurer of the Commission, and shall
not be used for any purposes other than contem-
plated by this Act. All expenses incurred by the
Commission under the provisions of this act, in-
cluding compensation to members of the Commis-
sion, Secretary and Treasurer, assistants and at-
torneys, shall be paid out of the funds held by the
Commission upon checks signed by the Treasurer
of the Commission and countersigned by its
Chairman. Provided, that the total expenses for
every purpose contemplated by this act shall not
exceed the total funds and charges collected and
paid to said Commission. Any funds raised under
the provisions of this Act which remain in the
hands of the treasurer of the Commission at the
end of the calendar year, after the payment of ex-
penses accrued, shall be paid into the treasurjr of
the State. Acts 1925, pp. 325, 328.
§ 1896(10). Licenses; application; renewals. —
Any person, co-partnership or corporation desiring
to act as real estate broker, or any person desiring
to act as real estate salesman shall file with
the Georgia Real Estate Commission an applica-
tion for license in such form and detail as the Com-
mission shall prescribe, setting forth the following:
[441]
§ 1896(11)
REAL ESTATE BROKERS AND SALESMEN
§ 1896(14)
(a) The name and residence address of the appli-
cant. If the applicant be a co-partnership, the
name and residence address of each member there-
of; or, if the applicant be a corporation, the name
and residence address of each of its officers.
(b) The place, or places, including the city, town
or village, where the business is to be conducted,
with the street number and the manner in which
said place of business is designated.
(c) The business or occupation theretofore en-
gaged in by the applicant, or, if a co-partnership,
by each member thereof, or if a corporation, by
each officer thereof, for a period of two years
immediately preceding the date of such application,
setting forth the place or places where such busi-
ness or occupation was engaged in.
(d) Such further information as the commission
may reasonably require to enable it to determine
the trustworthiness of the applicant, including each
member of the co-partnership, or each officer of
the corporation, as to their competency to trans-
act the business of a real estate broker, or sales-
man in such manner as to safeguard the interest of
the public.
(e) Every application for a real estate sales-
man's license shall also set forth the period of time
in which he has been engaged in the real estate
business, stating the name and address of the real
estate broker then employing him, or in whose em-
ploy he is to enter. Each application for license
under this article shall be verified by the applicant;
if made by a co-partnership, it shall be verified by
a member thereof, or if made by a corporation, by
an officer thereof. An application for license
shall be accompanied by the appropriate license fee
as hereinafter prescribed in this article.
Any license granted under the provisions hereof
may be renewed by the Commission upon applica-
tion therefor by the holder thereof in such form as
the commission may prescribe upon the payment
of the annual fee for such license. In case of the
application for renewal of license, the commission
may dispense with the requirements of such state-
ments as it deems unnecessary in view of those
contained in the original application for license.
Acts 1925, pp. 325, 329.
§ 1896(11). Form and contents of license; display;
change of location; pocket card. — The Commission
shall issue to each licensee a license in such form
and size as shall be prescribed by the Commission.
This license shall show the name and address of the
licensee and in case of a real estate salesman, the
license shall show the name of the real estate
broker by whom he is employed. Each license
shall have imprinted thereon the seal of the Com-
mission, and in addition to the foregoing, shall con-
tain such matter as shall be prescribed by the com-
mission. The license of each real estate salesman
shall be delivered or mailed to the real estate
broker by whom such real estate salesman is em-
ployed and shall be kept in the custody and control
of such broker. It shall be the duty of such real
estate broker to conspicuously display his license
in his place of business. Notice in writing shall be
given to the Commission by each licensee of any
change of principal business location, whereupon
the Commission shall issue a new license for the
unexpired period without charge. A change of
business location without notification to the Com-
mission and without the issuance by it of a new
license shall automatically cancel the license there-
tofore issued. The Commission shall prepare and
deliver each licensee a pocket card not larger than
two and one-fourth inches in width and three and
one-fourth inches in length, which card among
other things shall contain the name and address of
the employer and shall contain an imprint of the
seal of the Commission, and shall certify the name
of the person whose name appears thereon, as a
real estate salesman or broker as the case may be.
The matter to be printed on such card, except as
above set forth shall be prescribed by the Com-
mission. Acts 1925, pp. 325, 330.
§ 1896(12). Termination of employment. —
When any real estate salesman shall be discharged
or shall terminate his employment with the real
estate broker with whom he is employed, it shall
be the duty of such real estate broker to deliver by
mail or registered mail to the Commission such
real estate salesman's license. The real estate
broker shall at the time of mailing such real estate
license to the Commission address a communica-
tion to the last known residence address of such
real estate salesman which communication shall
advise such real estate salesman that his license has
been delivered or mailed to the Commission. A
copy of such communication to the real estate
salesman shall accompany the license when mailed
or delivered to the commission. It shall be unlaw-
ful for any real estate salesman to perform any of
the acts contemplated by this act either directly or
indirectly under the authority of said license from
and after the receipt of said license from said
broker by the commission; provided that another
license shall not be issued to such real estate sales-
man until he shall return his pocket card to the
Commission, or shall satisfactorily account to it
for same, provided further that not more than one
license shall be issued to any real estate salesman
for the same period of time. Acts 1925, pp. 325, 331.
§ 1896(13). Fees for licenses. — The fees for li-
censes shall be as follows: For a broker's license,
the annual fee shall be $25.00. If the licensee be a
corporation, the license issued to it shall entitle one
official or representative thereof to engage in the
business of a real estate broker within the meaning
of this act. For all other officers or representatives
of a licensed corporation who shall engage in the
business of a real estate broker within the meaning
of this, the annual fee shall be $10.00. If the li-
censee be a co-partnership, the license issued to it
shall entitle one member of said co-partnership to
engage in the business of a real estate broker with-
in the meaning of this Act. For every other mem-
ber of such co-partnership, the annual fee shall be
Ten Dollars.
For a salesman's license, the annual fee shall be
Ten Dollars. All applications for license shall be
accompanied by the license fee as herein provided,
and all licenses shall expire upon the 31st day of
December of each year. All applications made
during the year to expire December 31st of said
year. The fee charged shall be prorated on
monthly basis. Acts 1925, pp. 325, 332.
§ 1896(14). Investigations; revocations; dishon-
[442]
1896(15)
REAL ESTATE BROKERS AND SALESMEN
§ 1896(18)
est dealing. — The commission may, upon its own
motion, and shall, upon the verified complaint in
writing of any person, investigate the actions of
any real estate broker or real estate salesman, who
shall assume to act in either such capacity within
this state, and shall have power to suspend, for a
period less than the unexpired portion of the li-
cense, or to revoke any license issued under the
provisions of this Act at any time, where the li-
censee in performing or attempting to preform any
of the acts mentioned herein be deemed to be guilty
of:
(a) Making any substantial misrepresentations.
(b) Making any false promises of a character
likely to influence, persuade, or induce, or
(c) Pursuing a continued and flagrant course of
misrepresentation or the making of false promises
through agents or salesmen or advertising or other-
wise, or
(d) Acting for more than one party in a transac-
tion without the knowledge of all parties thereto,
or
(e) Representing, or attempting to represent, a
real estate broker other than the employer, without
the express knowledge and consent of the em-
ployer, or
(f) Failure to account for or to remit for any
moneys coming into his possession which belongs
to others.
(g) Paying a commission for valuable considera-
tion to any person not licensed under the provi-
sions of this act.
(h) Has demonstrated unworthiness or incom-
petency to act as real estate broker or salesman in
such manner as to safeguard the interest of the
public.
(i) Any other conduct whether of the same or a
different character than heretofore specified, which
constitutes dishonest dealing.
This act shall not be construed to relieve any
person from civil liability or criminal prosecution
under the general laws of this state. Acts 1925, pp.
325, 332.
§ 1896(15). Revocation and suspension of li-
cense.—The Georgia Real Estate Commission may
revoke the license of a real estate broker, salesman,
or suspend same for such period as the Commission
may deem proper, upon the conviction of a licensee
of a violation of any of the provisions of this article,
for material misstatements in the application for
such license, or if such licensee has been guilty of
fraud or violent practice, or has demonstrated un-
trustworthiness or incompetency to act as a real
estate broker or salesman as the case may be.
In the event that the Commission shall revoke or
suspend any license, its determination shall be in
writing and officially signed. The original of such
determination when so signed shall be filed in the
office of the Commission and copies thereof shall be
mailed to the broker or salesman addressed to the
place of business of such broker or saleman and to
the complainant within ten days after the filing
thereof as hereinafter described. Acts 1925, pp.
325, 333.
§ 1896(16). Notice; hearing; subpoenas. — The
Georgia Real Estate Commission shall before
denying an application for license or before sus-
pending or revoking any license, and at least ten
days prior to the date set for hearing, notify in
writing the applicant or the holder of such license
of any charges made, and shall afford said appli-
cant or licensee an opportunity to be heard, in per-
son or by counsel, in reference thereto. Such
written notice shall be served or delivered per-
sonally to the applicant or licensee. If said appli-
cant or licensee be a salesman, the Commission
shall also notify the broker employing him by mail-
ing a copy of the notice by registered mail to the
broker's last known address. The hearing of said
charges shall be at such time and place as the com-
mission shall prescribe.
The Commission shall have power to subpoena
and bring before it any person in this State, or take
testimony of any such person by depositions, with
the same fees and mileage in the same manner as
prescribed by law in judicial procedure in the
courts of this State in civil cases. Acts 1925, pp.
325, 334.
§ 1896(17). Appeals The action of the Georgia
Real Estate Commission in granting, refusing to
grant, or to renew a license under this article, or in
revoking or suspending, or refusing to revoke or
suspend such a license shall be subject to appeal to
the Superior Court and when the Real Estate Com-
mission shall have made and filed its decision, any
person, firm or corporation desiring to appeal from
the decision against them, may enter an appeal to
the Superior Court of the county of the residence
of the person, firm or corporation entering an ap-
peal. The appeal shall be made within thirty days
from the date of the decision of the Real Estate
Commission. The appeal shall be tried by a Jury in
the Supreme Court under the same rules and laws
as appeals from Inferior Courts to Superior Courts
are now tried and in every respect shall be de novo.
The decision of the Real Estate Commission shall
not be effective until the appeal is determined. Acts
1925, pp. 325, 334.
§ 1896(18). Non-residents' applications; irrevoc-
able consent. — A non-resident of this State may be-
come a real estate broker or real estate salesman in
any place in which the provisions of this article are
applicable by conforming to all of the provisions of
this article, except that such non-resident broker or
salesman regularly engaged in the real estate busi-
ness as a vocation, and who maintains a definite
place of business in some other state, shall not be
required to maintain a place of business within this
State. The Georgia Real Estate Commission shall
recognize in lieu of a recommendation and state-
ments required to accompany an application for
license the license issued to nort-resident broker
or salesman by any other state and shall issue a
license to such non-resident broker or salesman up-
on the payment of the license fee, and upon the fil-
ing by the applicant with the commission of a cer-
tified copy of the applicant's license issued by such
other state. Every non-resident applicant shall
file an irrevocable consent that suits and actions
may be commenced against such applicant in the
proper court in the county of the state in which a
cause of action may arise in which the plaintiff may
reside by service of any process or pleadings au-
thorized by laws of this State of the Georgia Real
[443]
§ 1896(19)
PILOTAGE
§ 1899
Estate Commission, or a deputy to be designated
by it, said consent stipulating and agreeing that
said service of such process or pleading shall be
begun and held in all courts to be as valid and
binding as if due service had been made upon said
applicant in the State of Georgia. Said consent
shall be duly acknowledged and if made by a cor-
poration shall be authenticated by the seal of such
corporation. In case any process or pleadings
mentioned in this act are served upon the commis-
sion or upon a deputy to be designated by it, du-
plicate copies shall be made, one of which shall be
filed in the office of the Commission and the other
immediately forwarded by registered mail to the
main office of the applicant against which said
process or pleadings are directed, and no default in
said proceedings of action shall be taken except it
shall be made to appear by affidavit of a member
of the commission, or a deputy designated hy it,
that a copy of the process or pleadings was mailed
to defendant as herein required; and no judgment
•by default shall be taken in any such action or
proceedings within twenty days after the date of
the mailing of such process or pleadings to the
non-resident defendant. Acts 1925, pp. 325, 335.
§ 1896(19). List of licenses. — The commission
shall, at least semi-annually, publish a list of the
names and addresses of all licensees licensed by it
under the provisions of this act and of all persons
whose licenses have been suspended or re-
voked or refused within one year, together with
such other information relative to the enforcement
of the provisions of this act as it may deem of in-
terest to the public. Such list shall be mailed by
the commission to any person in this state upon
request. Acts 1925, pp. 325, 336.
§ 1896(20). Compensation of commissioners. —
Each member of the commission shall receive as
full compensation for each day actually spent on
the work of said commission the sum of twenty-
five dollars, and his actual necessary expenses in-
curred in the performance of the duties pertaining
to his office. Acts 1925, pp. 325, 336.
§ 1896(21). Effect of partial invalidity. —
Should the courts declare any provision of this
act unconstitutional, such decision shall affect only
the section declared to be unconstitutional and
shall not affect any other section or part of this
act. Acts 1925, pp. 325, 337.
As to the penalty for the violation of this act, see §
476 (10), P. C.
CHAPTER 6.
Pilotage.
§ 1897. (§ 1651.) Appointment, number, and
term of commissioners; by whom. — The corporate
authorities of Savannah, Darien, Brunswick, and
St. Mary's shall each have power respectively to
appoint commissioners of pilotage, seven in num-
ber, whose term of office shall be seven years, but
the term of office of the commissioners first ap-
pointed shall be one, two, three, four, five, six, and
seven years respectively; they shall exercise the
duties of the former boards of pilot commissioners
in this State; and for every year thereafter one
pilot commissioner shall be appointed by said cor-
porate authorities to succeed the commissioner
whose term expired for that year. Said commis-
sioners of pilotage to be appointed by the corpo-
rate authorities of Savannah for the bar of Tybee
and river of Savannah and the several bars and
inlets north of sapelo bar; by the corporate author-
ties of Darien for sopelo bar and the river Altamaha,
and for the several bars and inlets south of Sapelo
bar as far as St. Simon's bar; by the corporate
authorities of Brunswick for the bar of St. Somon's
and Turtle river and St. Andrew's bar and the
several bars and inlets north of and including the
Great Satilla river; by the corporate authorities of
St. Mary's for the bar of St. Mary's and all bars
and inlets between the St. Mary's bar and the St.
Andrew's bar. Acts 1894, p. 41.
§ 1898. ;(§ , 1652.) Vacancies. — All vacancies
in boards of commissioners shall be filled by ap-
pointment by said corporate authorities for the
unexpired term of the commissioner who has held
the office vacated; the said boards of commis-
sioners shall be composed of ship agent, exporters,
merchants, pilots, or others who are engaged in or
familiar with marine shipping and with the re-
quirements of their respective ports. Acts 1894.
p. 42; 1914, p. 57.
Editor's Note. — As this section formerly read it con-
tained an express provision prohibiting an owner or part
owner of a pilot boat from acting as commissioner of
pilotage. However the Act of 1914 (Acts 1914, p. 57) did
away with this restriction and an owner of a pilot boat
is as eligible now as any one else.
§ 1899. (§ 1653.) Licensing of pilots. — The
commissioners of pilotage at each of the ports of
this State are empowered to license such persons
(being citizens of the United States) of good
character as they shall think most fit to act as
pilots, for the purpose of conducting vessels in-
ward to and outward from the several ports and
rivers for which they shall be licensed during
their good behavior. Pilots already licensed for
any of isaid ports or rivers shall continue to act
until removed for cause. No additions shall be
made to the present number of licensed pilots un-
til the number shall not exceed twenty for the
port of Savannah, ten for the port of Doboy and
Darien, twelve for the port of Brunswick, two for
the Great Satilla river, and eight for the port of
St. Mary's; and thereafter, when vacancies occur
in the number of pilots in any one of the before-
named ports or rivers, the commissioners of that
port may in their discretion grant licenses as pilots
as hereinbefore provided, until the number of
pilots reaches the number allowed by this section
for that port or river. This section shall not pre-
vent the commissioners of any one of the before-
named ports from, in their discretion, granting li-
censes to such apprentices as were apprentices
December 1st, 1886, when any one of such ap-
prentices has fulfilled the requirements of the laws
of the State of Georgia and the rules and regula-
tions established by the commissioners of the said
port. No person, other than a duly licensed pilot,
shall be entitled to receive any fee, gratuity, or re-
ward for conducting or piloting any vessel inward
to or outward from any of the ports, rivers, or
harbors for which a pilot shall be licensed. If any
person, having no authority or license to act as
[444 ]
§ 1900
PILOTAGE
§ 1901
pilot, or who, having had any authority, has had
it suspended or revoked by the commissioners,
shall, while his license is suspended, pilot or con-
duct any vessel inwards to or outwards from any
of the ports, rivers, or harbors of this State, or if
any person interfers with or disturbs a licensed
pilot in the way of his duty, such person may, on
conviction, be fined and imprisoned at the discre-
tion of any court having jurisdiction; but any per-
son may assist a vessel in distress without any
pilot on board, if such person shall deliver up the
vessel to the first pilot who comes on board and
offers to conduct it, but the vessel must fly the
signal for a pilot until one has been received or his
services tendered. Acts 1886, p. 38; 1896, p. 85;
1901, p. 30; 1921, p. 103.
Editor's Note.— The Acts of 1921 (Acts 1921, p. 103) in-
creased the number of pilots allowed the port of St. Mary's
from four to eight, this being the only change effected by
the amendment.
The courts will not interfere with the commissioners
granting a license unless illegality or an abuse of discre-
tion clearly appear. Healey v. Dean, 68 Ga. 514, 517.
Proper Testimony before Commissioners Presumed. — The
commissioners are vested with full and ample discretion
as to granting licenses to pilots and if it were necessary
to the validity of their judgment to have had the testi-
mony of the mayor as to the existence of an emergency,
jurisdictional facts appearing, the presence of proper tes-
timony will be presumed. Healey v. Dean, 68 Ga. 514.
Contract Limiting Number of Pilots. — A contract be-
tween commissioners and pilots whereby the former agree
to limit the nurnber of pilots to ten for a period of three
years is void. Wright v. Commissioners, 69 Ga. 247.
Licensed Pilot Can Not Claim Entire Business. — Each
licensed pilot has a right to hold his license and receive
his fees for services which he may render; but he has no
right, either alone or in company with others, to claim the
entire business of the port and to prevent the issuance
of license to another pilot, in the discretion of the com-
missioners of pilotage. Wright v. Commissioners, 69 Ga.
247, 248.
Proceedings to License Pilots — Parties. — On an appli-
cation to the commissioners of the port of Darien for a
license to be issued to the applicant as a pilot, pilots al-
ready licensed could not be made parties to the proceed-
ing. Healey v. Dean, 68 Ga. 514.
Certiorari Issuing against Board. — A refusal by the
Commissioners of Pilotage for the Bar of Tybee and River
of Savannah, upon ex parte application, to authorize li-
censed pilots upon that bar to operate a boat separate and
independent from the pilot boat to which, under the rules
of the commissioners, all pilots are required to be at-
tached, is not the exercise of a judicial function by the
commissioners of pilotage, and the writ of certiorari will
not lie to such refusal. Daniels v. Commissioners, 147
Ga. 295, 93 S. E. 887.
§ 1900. (§ 1654.) Removal of pilots.— The com-
missioners shall suspend any pilot, or deprive
him of his license, for want of skillfulness or for
negligently or carelessly losing or injuring any
vessel in his charge, or when he is laboring under
mental derangement, or is so addicted to habits of
intoxication as to unfit him, in their judgment, to
be intrusted with the charge of a vessel; but in
every such case an appeal may be made as is pro-
vided for by law.
As to other causes of removal, see §§ 1909, 1910. As to
default of pilot, see § 1916. As to appeal from commis-
sioner's decisions, see § 1926.
§ 1901. (§ 1655.) Rules, regulations, and fees.
— The commissioners shall have power, and it is
their duty to prescribe rules and regulations for
the government of pilots, and to prescribe the fees
for their services, and they may also impose such
penalties, not inconsistent with this law, for
neglect of duty or for a violation of the orders or
of the rules and regulations of the commissioners,
as they may think proper. They shall, from time
to time hereafter, whenever necessary, revise and
grade the existing pilotage fees, both inward and
outward, on vessels drawing seventeen feet, or
less, when loaded, so that said fees shall not ex-
ceed the average of the fees charged at the ports
of Norfolk, Wilmington, Charleston, Port Royal,
or Beaufort, Fernandina, Pensacola, Apalachicola,
Mobile and New Orleans. They shall exempt
coastwise vessels from the payment of pilotage
fees, both inward and outward, unless pilotage
services are tendered outside the bar, and they
shall provide that coastwise vessels changing
ports of this State shall pay the inward pilotage at
the first port of entry only, and the outward pilot-
age from each port or ports at which such vessels
shall load cargo in whole or in part; but they shall
allow vessels running coastwise under the United
States license to pay, after paying the inward
pilotage for that trip, an annual license fee of
twenty-five cents per registered ton, which shall
belong to the pilot entitled to the inward pilotage
fee, and the payment of said license fee shall ex-
empt at that port said vessel for twelve months
thereafter from compulsory employment of a
pilot, either inward or outward, or payment there-
for, unless services of a pilot are accepted; licenses
shall be granted only after they are paid the in-
ward pilotage for that trip if service has been
tendered outside the bar; and any vessel, while in
a port for which she has had a license, may, within
ninety days after the expiration of said license,
make application for, and, on payment of the
license fee, shall receive a new license for twelve
months from the date of the expiration of the old
license. They shall allow half the regular pilot-
age fees to be collected from all vessels, except
those exempt by laws of the United States, or li-
censed as provided for in this chapter, calling at
the bar of any of the before-named ports or rivers
in ballast, seeking for orders, if they do not load
but leave in ballast, and allow half the regular
pilotage fees, both inward and outward, on all
vessels returning to the port at which they loaded,
before completing the voyage, from stress of
weather, or from being damaged or disabled; but
vessels subject to go into quarantine shall pay
full pilotage fees inward and outward. Acts 1886,
p. 38; 1901, p. 31; 1915, pp. 16, 17.
Editor's Note. — This section was amended in 1915 (Acts
1915, p. 16) the amendment consisted of a provision that
"coastwise vessels changing ports of this state pay the
inward pilotage at the first port of entry only, and that
outward pilotage from each port or ports at which such
vessels shall load cargo in whole or in part." As the sec-
tion formerly stood it provided that coastwise vessels
changing ports of this state shall not pay more than in-
ward pilotage at the first port of entry of this state, and
outward pilotage from the last port from which they
finally go to sea.
Scope of Commissioners' Power. — The power to make
rules for the government of pilots, subject to approval by
the municipal authorities of the city of Savannah, as pre-
scribed by this section and § 1918, construed with reference
to the business involved and qualifications prescribed for
commissioners of pilotage, was sufficiently broad to au-
thorize the commissioners to make rules requiring licensed
pilots to become attached to one or more pilot boats, which
in the opinion of the commissioners would subserve the
business interest of the shipping public, and others involved
in the marine commerce of the port, and to restrict the
number of pilot vessels to be employed on the bar.
Daniels v. Commissioners of Pilotage, 147 Ga. 295, 305, 93
S. E. 887.
Alleging Character of Vessel. — Where a pilot tendered his
[445 ]
§ 1902
PILOTAGE
§ 1909
services under circumstances which would ordinarily re-
quire a vessel to accept the same, the petition is not de-
fective merely because it fails to allege the character of
the vessel, whether coastwise or foreign. If the vessel be-
long to a class exempted by law from the payment of pilot-
age fees, this is a matter of defense and should be set up
by plea. Hagan v. Townsend, 118 Ga. 682, 45 S. E. 471.
§ 1902. (§ 1656.) Vessels refusing to take pilot.
— Any person master or commander of a ship or
vessel, except vessels exempt by United States
laws and vessels while licensed under the provi-
sions of this Article and vessels of less than one
hundred tons burden, bearing towards any of the
ports, rivers, or harbors of this State, who refuses
to receive a pilot on board, shall be liable, on his
arrival in such port, river, or harbor in this State,
to pay the first pilot who may have offered his
services outside the bar, and exhibited his license
as a pilot if demanded by the master, the full rates
of pilotage, inward and outward, established by
law for such vessel. Acts 1886, p. 38.
A helpless and unnavigable vessel, which has sprung a
leak, so as to require the use of two steam pumps, and is
without master, commander, or crew, having but a dozen
laborers aboard, working the pumps, and has only a tem-
porary rudder, and is in tow of a steam tug, is not within
the provisions of this section. The Saehelm, 99 Fed. 456.
Prior Law.— In Thompson v. Spraigue, etc., Co., 69 Ga.
409, it was held that a prior contract between the master of
a vessel and another pilot to receive him on board at a port
nearer the bar will not give the right to reject the pilot
first offering without becoming responsible for his fees.
But this holding was reversed in Spraigue v. Thompson,
118 U. S. 90, 6 S. Ct. 988, 30 L. Ed. 115, because it was de-
cided under § 1512 of the Ga. Code of 1882, which was re-
pugnant to certain sections of the Revised Statutes of the
United States.
§ 1903. (§ 1657.) Pilot bringing in may take
out. — The pilot who brings a vessel into port, or
one attached to his pilot-boat, shall have the ex-
clusive right to take her out, unless the master of
such vessel shall prove to the satisfaction of the
commissioners that such pilot misbehaved him-
self while in charge of the vessel or was in the
meantime deprived of his license, or that such
pilot had obtained the inward pilotage against
the right of some other pilot first offering his serv-
ices, and in any of these cases another pilot shall
be employed and in that event the outward pilot-
age shall belong to the pilot who takes her out.
Acts 1886, p. 38.
As to rights and duties of pilots, see § 1911.
Where a pilot brought into port a wrecked British ves-
sel, which was libelled in admiralty, and was sold under
decree of that court, to which he was a party, and the ves-
sel was thereafter refitted, and her name and nationality
changed, she was a new vessel, and the pilot was not en-
titled to pay, by reason of having tendered his services to
carry her out of port, on the ground that he had brought
in the wreck. Meissner v. Stein, 72 Ga. 234.
§ 1904. (§ 1658.) Mooring and docking. — Every
pilot in any of the ports, rivers, or harbors afore-
said, bringing any vessel to anchor in any of said
ports, rivers, or harbors, shall moor such vessel.
or give proper directions for the mooring <>t" the
same and the safe-riding thereof, or shall dock
such vessel if required by the master on arrival,
and said pilot shall not be entitled to compensa-
tion in addition to his pilotage fees for so doing.
Acts 1886, i>. :ia.
§ 1905. (§ 1659.) Collection of fees.— \ pilot
bringing a vessel into port, or who has tendered
his services to her OUtside the bar. unless his serv-
ices have been refused because ol her being li- j
censed as hereinbefore provided, shall be entitled
to his fees, both inward and outward, before her
departure from port, to be paid in advance, or
security given for the payment, and on failure
thereof he may refuse to carry the vessel out, and
all fees for pilotage may be demanded and re-
covered, in any court having jurisdiction, from
the owner, master, or consignee of the vessel;
and if any licensed pilot shall ask or demand more
fees for his services than are specified in the rates
of pilotage, on due proof thereof before the com-
missioners he shall forfeit double the amount of
such vessel's pilotage. Acts 1886, p. 38.
§ 1906. (§ 1660.) Delivering letters. — When-
ever a vessel shall touch off the bar of any of the
ports, rivers, or harbors of this State for instruc-
tions, any pilots delivering on board such vessel
any letters or orders shall be allowed one half of
the bar pilotage in and out. Acts 1S86, p. 38.
§ 1907. (§ 1661.) Pilot's license and oath. —The
license to a pilot must be in the form of a certifi-
cate of his appointment, which must be signed by
a majority of the commissioners, or by their
chairman by their direction, and each pilot, on re-
ceiving his license, shall take and subscribe an
oath in the following from: '*T, A. B., appointed
pilot for the port and harbor of , do swear
that I will faithfully, and according to the best of
my ability, perform the duties of a pilot in and
for said port and harbor of , and will at all
times — 'wind, weather, and health permitting — use
my best endeavors to repair on board every ves-
sel I shall see, and conceive to be bound for. com-
ing into, or going out of said port and harbor.
unless I am well assured there is some other li-
censed pilot on board the same; that I will, from
time to time, make the best dispatch in my power
to convey any vessel committed to my charge
coming into or going out of said port or harbor;
and will at all times well and truly observe, fulfill,
and follow, to the best of my skill and judgment,
all such orders and directions as I may receive
from the commissioners o\ pilotage in all matters
and things relating to the duty of a pilot."
§ 1908. (§ 1662.) Pilot's bond.— The pilot must
make and deliver to the Commissioners a bond,
payable to the Chairman of the Board, and his
successor in office, in the penal sum of two thou-
sand dollars, with security to be approved by the
Commissioners, and with the condition faithfully
to perform his duties as pilot, which bond shall
be renewable at the discretion of the Commis-
sioners with such security or additional security
as they may require. Suits thereon may be
brought by any person endangered by the mis-
conduct, carelessness or neglect of the pilot in any
court having jurisdiction thereof, without any or-
der for that purpose. Acts 1921. p, 10.r>.
Editor's Note.— This section w.is amended by the Acts
of loji (Acts 1921, p. 105) which added a provision at the
end of tin- section, th.it suits oa the pilot' I bond could be
brought by any person endangered by the misconduct of
(lie pilot in any court havinp jurisdiction without any or-
der for tliat purpose.
§ 1909. (§ 1663.) License, how forfeited. — Any
pilot who fails to act as pilot for three months, or
absents himself for ten flays at any one time with-
out leave of the commissioners, may be deprived
f Hn 1
§ 1910
PILOTAGE
§ 1918
of his license; and any pilot who shall, with
knowledge of the arrest of any vessel under civil
process from any court of record of this State,
conduct or pilot such vessel out of the port or har-
bor where such arrest is made, and whilst such
vessel is in charge of a civil officer, shall forfeit
his license and be forever disqualified from acting
as pilot, besides forfeiting such sum as a jury may
assess for damages.
As to removal of pilots, see § 1900.
§ 1910. (§ 1664.) Duty of pilots,— Every pilot-
boat cruising, or standing out to sea, must offer
the services of a pilot to the vessel nearest the
bar, unless a vessel more distant be in distress,
under penalty of fifty dollars for each and every
neglect or refusal either to approach the nearest
vessel, or to aid her if required, or to aid any ves-
sel in sight showing signals of distress; and the
commissioners, or a majority of them, may, for such
neglect or refusal, deprive the pilot of his license.
As to removal of pilots, see § 1900.
§ 1911. (§ 1665.) Rights and duty of pilots.—
Any pilot having the right to take a vessel out of
port may attend in person, or procure another
person out of the pilot-boat to which he is at-
tached to attend for him; and if any master or
owner of any vessel in port employ any other
pilot to carry his vessel down the river, or to sea,
but the pilot who brought her in, or one belonging
to the same boat, unless good and sufficient cause
shall appear therefor, on due proof thereof before
the commissioners he shall be liable to a fine not
exceeding one hundred dollars — one half to the
pilot lawfully claiming the pilotage of the vessel;
fcut should such pilot neglect or refuse to attend,
and carry down such vessel when ready for sea
(wind, weather, and tide permitting), when there-
unto required by the master, owner, or consignee,
such pilot shall, on conviction thereof before the
board of commissioners, forfeit the upper pilotage
of such vessel, and be liable to a fine not ex-
ceeding one hundred dollars; and any pilot acting
on board such vessel when he has no right shall
be liable to the same penalty, and shall, moreover,
be liable to the pilot having the right for carrying
the same vessel out: Provided, the commis-
sioners have not sufficient evidence of the neces-
sity of his acting.
As to right of pilot bringing vessel in to take out, see §
1903.
§ 1912. (§ 1666.) Pilot to be notified of vessel's
departure. — The master of a vessel in readiness to
leave must, if practicable, give notice, to the pilot
entitled to conduct the vessel out, of his intention
to leave, or to some other pilot belonging to the
same boat: Provided, such pilot be at the place
of departure of such vessel or near thereto.
§ 1913. (§ 1667.) Penalty for carrying off or
detaining pilot. — The owner, master, or con-
signee of any vessel carrying off any pilot of such
vessel, and against his consent, to any port, ei-
ther foreign or on the coast, shall be liable to
such pilot, in action on the case, for the payment
of all reasonable expenses, and for the further
sum of not exceeding three dollars a day, dur-
ing the necessary absence of the pilo>\ Provided,
the carrying away of such pilot be ,iot owing to
[44
any default, misconduct, or negligence on his
part; and the master of a vessel detaining a pilot
on board his vessel, the wind and weather per-
mitting him to go to sea, shall be liable to pay
such pilot three dollars a day for every day he
is so detained.
§ 1914. (§ 1668.) Fees for taking pilot from
vessel. — When any pilot-boat belonging to a
different pilot than the one who may have con-
ducted a vessel out to sea takes such pilot off
from such vessel, such pilot-boat shall be en-
titled to one third of the pilotage.
§ 1915. (§ 1669.) Pilot's fees for carrying vessel
to another port. — Any pilot belonging to any
port in this State, meeting at sea with any vessel
bound to another port within the same, shall, if
capable and thereunto required, take charge of
and pilot such vessel into such port, and shall
be paid two dollars per day, for every day such
pilot may be on board such vessel at sea with-
out the bars, over and above the usual rate of
pilotage, and no other pilot shall interfere while
the former is willing to continue his services.
§ 1916. (§ 1670.) Default of pilot, how pun-
ished.— If any vessel whatsoever, or the cargo or
freight thereof, shall receive any damage or mis-
carriage, or be lost through the negligence or
default of any pilot, after such pilot takes charge
of the same, and the claim exceeds one hundred
dollars, the said pilot shall, in such case, on con-
viction thereof before any court of record in this
State, be obliged to answer and make good to the
sufferers, or the master of said vessel, all and
every the damages he shall sustain thereby.
As to removal of pilot, see § 1900. As to forfeiture o!
license, see § 1909.
§ 1917. (§ 1671.) Other cases of damages, hew
settled. — All other cases of damage or difference
that may arise or be made against any master or
pilot, for or concerning the pilotage of any
vessel, or any other matter relative to the busi-
ness or care of a pilot, in any of said harbors,
shall be heard and determined by the commis-
sioners, or a majority of them, appointed for the
care of the pilotage where such damage or dis-
pute shall arise, who, by their decree or order,
shall lawfully decide and regulate every such
damage or difference, and who shall have power
to enforce such decree or order by execution or
warrant of distress under their hands and seals,
or the hands and seals of any three of them, di-
rected to any sheriff or constable of the county
where such execution issues, commanding the
sale of the offender's goods, or so much thereof
as shall be sufficient to satisfy such execution or
warrant, and all sales thereunder shall be con-
formable to the laws of the State in other cases
of sale; and such sheriff or constable shall be
liable to be ruled before the judge of the superior
court as in other cases, in term time or vacation,
for any default in duly executing such process;
but in case of a sentence or judgment for more
than twenty dollars, an appeal may be had, as
is hereinafter provided.
As to right to appeal from commissioner's decision, see
§ 1926.
§ 1918. (§ 1672.) Commissioners must keep a
record of rules, etc. — The commissioners shall
preserve, in a neatly-bound book, a record of all
7]
§ 1919
PILOTAGE
§ 1926
1928.
of commissioners,
the commissioners
their acts, and of all the rules and regulations
adopted by them for the direction and govern-
ment of the pilots; but in the city of Savannah
such rules and regulations shall not be operative
until approved by the city council. They must
designate one of their number as chairman, and
cause a record thereof to be made, and prescribe
such fees for the service of the pilots, and im-
pose such fines and penalties not inconsistent
with the provisions of this Chapter, as they may
deem expedient. They must also preserve upon
record a list of all persons appointed pilots by
them, as well as those by them suspended.
See notes to § 1901.
§ 1919. (§ 1673.) Fees of secretary.— All per-
sons interested shall have access to, and be per-
mitted to have copies of the records; and copies
thereof certified by the chairman or secretary
shall be presumptive evidence of the facts there-
in stated. The secretary of the commissioners
shall have such salary or fees as the commis-
sioners may determine, and such salary or fees
shall be paid out of fines and forfeitures, or such
other fund as shall be under the control of the
commissioners.
As to fines and forfeitures, see
§ 1920. .(§ 1674.) Office
where kept. — The office of
must be kept in some suitable place, of which
the public shall have notice, and their books,
papers, and records may be kept in such office,
or in the office of any court of record in the
county.
§ 1921. (§ 1675.) Attendance of witnesses. —
When the attendance of any person shall be re-
quired as a witness before the commissioners of
pilotage in any matter or claim of which they
shall have jurisdiction, it shall be the duty of
their secretary, on application, to issue sum-
monses in the nature of writs of subpcena, to be
signed by him and directed to the persons whose
attendance shall be required, when such persons
reside in the county where such matter or claim
may be depending. The summons shall express
the cause and the party at whose suit it shall be
issued, and shall be served on such witnesses at
least twenty-four hours before the meeting of
the commissioners to which it shall be return-
able, and it shall be served by the messenger of
such commissioners, or a constable, and the re-
turn of such officer shall be evidence of the
service of the subpoena.
§ 1922. (§ 1676.) Defaulting witnesses pun-
ished.— Any witness thus summoned, whose
testimony shall appear to be material, and who
shall fail to appear, may be attached by the com-
missioners, and the attachment shall be directed
to a sheriff or constable, and made returnable to
the next superior court of the county; and such
court may fine such witnesses in a sum not ex-
ceeding one hundred dollars, unless a good ex-
cuse be made to the judge of said court; but
such witness shall, nevertheless, be liable to ac-
tion at the suit of the party injured by such non-
attendance.
§ 1923. (§ 1677.) May cite witnesses to answer
interrogatories. — When any witness may be a
seaman or transient person, the commissioners
[448 ]
may issue subpoena to such witness by their
secretary, requiring such witness to appear at a
time and place therein stated, before any justice
of the peace or ordinary of the county, to an-
swer written interrogatories to be propounded to
him.
§ 1924. (§ 1678.) Service of subpoenas, etc. —
The subpcena must be served twenty-four hours
before it is returnable, and notice for the same
length of time must be given to the adverse
party, or attorney, agent, or consignee, of the
time and place of putting such interrogatories.
The officer taking the depositions shall seal up
and properly indorse and return such depositions,
which may be offered by consent or by order of
the commissioners, and shall stand in the place
of the oral examination of such witness, when
his personal attendance can not be procured.
§ 1925. (§ 1679.) Fees for serving subpoenas,
etc. — The secretary's fees for each subpoena shall
be twenty-five cents; for each attachment, fifty
cents; for examining a witness the justice of the
peace shall receive one dollar; the sheriff or con-
stable, for serving any subpcena, shall receive
twenty-five cents, and for executing and return-
ing an attachment to court, fifty cents.
§ 1926. (§ 1680.) Appeal from judgment of
commissioners, etc. — In any case where a pilot
shall be suspended, or where a fine exceeding the
sum of twenty dollars shall be imposed by any
judgment or decision of the board of commission-
ers, or where the license or warrant of a pilot
shall be revoked, then the person so fined, or. the
pilot so suspended or whose license or warrant
shall be revoked, may petition the judge of the
superior court of the county where such judg-
ment or sentence may be made, setting forth on
oath the circumstances of the case, a copy of
which petition shall be served upon the acting
chairman or secretary of such board at least
three days before the return of any rule there-
on; and if, on reading such petition, the judge
shall think there is sufficient ground for the al-
lowance of an appeal, he shall therein direct an
issue to be made up between such commissioners
and the appellant, which issue shall be tried by
a special jury, as in other appeal cases, at the
next term of the superior court, unless good
cause is shown for a continuance; and if upon
such trial a verdict shall be rendered in favor of
the appellant, the said judge shall make rule re-
mitting such fine, or restoring the suspended
pilot or the pilot whose warrant or license may
have been revoked as aforesaid.
Cross References. — As to removal of pilot, see § 1900. As
to forfeiture of license, see § 1909. As to damages, how
settled, see § 1917. As to provisions concerning appeals,
see §§ 4998 et seq.
Judgment for Defendant Not Reviewable. — Where a pilot
was tried before commissioners of a certain port for derelic-
tion of duty, and an appeal to the superior court was taken,
and in that court fie was acquitted, the commissioners could
not move for a new trial, and upon its refusal, prosecute
a writ of error based on such refusal. Proceedings against
pilots for dereliction of duty are criminal proceedings, or
quasi criminal proceedings, and a judgment in favor of the
defendant can not be reviewed. Commissioners v. Tabbott,
72 Ga. 89.
In a proceeding against a pilot for a dereliction of duty,
the commissioners are not parties thereto, except as repre-
sentatives of the state, and they can make no motion for a
new trial, nor can they take a writ of error in their own
names. Commissioners v. Tabbott, 72 Ga. 89.
§ 1927
OYSTERS
§ 1937
§ 1927. (§ 1681.) Commissioners to take testi-
mony, etc. — In the case of an appeal as afore-
said, commissions may issue to take the deposi-
tions of any person not a resident of the county,
or whose oral testimony can not be conveniently
had, as in other cases, before such superior
court; but no such commissions shall issue but
upon three days notice to the opposite party, by
service of a copy of the interrogatories to be ex-
hibited, as in other cases.
As to who may be examined on interrogatories, see §
5886.
§ 1928. (§ 1682.) Fines and forfeitures, how
disposed of. — All fines and forfeitures collected
by the commissioners shall be applied toward
payment of the ordinary expenses of the board,
and the residue shall be expended by the com-
missioners toward improving the navigation of
the port or harbor where such fines and forfei-
tures are inflicted.
As to fines being part of fee of secretary, see § 1919.
§ 1929. (§ 1683.) Term of service of apprentice-
ship.— No person shall receive a certificate to act
as pilot until he shall have served as an appren-
tice two full years in a decked pilot-boat on the
bar for which he seeks to be a pilot (the crew
not to be considered as apprentices unless so
registered in the office of the commissioners of
pilotage), and Jiave given satisfactory evidence
of character and skill, and any certified pilot
shall serve eighteen months before he shall be
entitled to an increased authority; but, in case
of emergency, such additional pilot may be ap-
pointed as the mayor or other chief officer of the
port may determine — the foregoing restrictions
to the contrary notwithstanding. Acts 1882-3, p.
70.
An emergency does not have to exist before issuing a
license to a pilot who has served two years on a decked
pilot boat. Healey v. Dean, 68 Ga. 514.
§ 1930. (§ 1684.) Branch pilots, how appointed.
— All branch pilots must be appointed by the
commissioners; and whenever a vacancy occurs
in a branch, the person who has served the long-
est time as an apprentice must, if deemed com-
petent by the commissioners, be appointed to the
vacancy; but no person can hold a branch who
is not engaged in pilotage.
§ 1931. (§ 1685.) Penalty for discharging bal-
last in harbor. — If any master of a vessel or
water-craft of any description shall throw or
permit to be thrown, from on board such vessel
or water-craft, into any of the waters of any bay
or harbor of this State, or within three miles of
the outside bar of any such bay or harbor, any
stone, gravel, or other ballast, he shall forfeit a
sum not less than five hundred nor more than
two thousand dollars for any such offense, and
may be imprisoned not exceeding three months,
at the discretion of the court; one half the for-
feiture to be paid to an}^ one first giving informa-
tion of the offense to the commissioners, and the
other half to the use of the commissioners of
said harbors, respectively, for improvement of
navigation.
§ 1932. (§ 1686.) Proceeding for violating pre-
ceding section. — Upon the commissioners receiv-
ing satisfactory evidence of the offense specified
in the preceding section, it shall be their duty to
proceed to recover such forfeiture by process of
attachment in the name of the State, which may
be issued as other attachments, on the oath of
the informer or of one of the commissioners,
and be levied on the vessel from which the of-
fense was committed. The vessel may be re-
plevied by the master, owner, or consignee, by
giving bond, payable to the State, in double the
amount of the penalty, with the condition to have
the vessel forthcoming to satisfy such judgment
as may be rendered in the suit.
The attachment provided for by this section is only to
secure and recover the fine to be imposed upon the con-
viction of the offender, and can not be carried to judg-
ment until after the guilty person has been tried and sen-
tence passed, when judgment may be taken in the attach-
ment for the amount of the fine affixed by the judge. Wal-
lace v. State, 46 Ga. 199.
§ 1933. (§ 1687.) Penalty against pilot for con-
cealing such offense. — It shall be the duty of
every pilot, having knowledge of the commission
of the offense specified in the two preceding sec-
tions, to give, as soon as practicable thereafter,
information thereof to the commissioners; and
failing to do so, such pilot shall be deprived of
his license, and be thereafter forever disqualified
for the office of pilot.
§ 1934. (§ 1688.) Incorporated towns may pro-
hibit the discharge of ballast in navigable waters.
— The city council of Savannah shall have au-
thority to prohibit, under proper penalties, the
throwing or depositing in the Savannah river,
and within the jurisdictional limits of said city,
of any substance of any nature or kind which
might in any degree lessen the depth of water in
said river, or any part thereof, within said limits;
and the same authority is hereby vested in the
corporate authorities of the other towns respec-
tively, as to navigable waters within their re-
spective jurisdictions.
§ 1935. (§ 1689.) Suits in name of commission-
ers.— The same boards of commissioners are
hereby authorized, in their own names or in that
of their chairman respectively as such, to sue
for and recover, to their own use and the im-
provement of navigation, any forfeiture which
may accrue under this Chapter, which is not
otherwise specifically appropriated.
§ 1936. (§ 1690.) Present commissioners, etc.,
to stand. — All existing appointments of commis-
sioners of pilotage, and of officers under the
same, as well as their rules and regulations not
contrary to law at the time of the adoption of
this Code, shall continue good and valid in law,
according to their nature and terms, until super-
seded by authority of this Code.
CHAPTER 7.
Oysters.
§ 1937. (§ 1691.) Unlawful to catch oysters
from May first to August thirty-first. — It shall
not be lawful to pick, tong, dredge, or in an}'
other manner take or catch oysters from any of
the waters of this State, except from private
beds, from the first day of May to the thirty-
first day of August, inclusive, of each and every
year, except for the purpose of replanting the
same in the waters of this State; nor shall it be
Ga. Code— 15
[449]
§ 1938
OYSTERS
§ 1943
lawful for oysters to be taken for any purpose
during any season from one hour after sunset
on Saturday until one hour before sunrise on the
succeeding Monday. Acts 1889, p. 143.
As to boundaries of beds, see §§ 3635-3637. As to pro-
vision in penal code, see P. C, § 615.
§ 1938. (§ 1692.) Unlawful to rough take.— It
shall not be lawful to "rough" take and catch
oysters from any of the public beds within the
waters of this State, unless the same shall be
culled over the beds from which they may be
taken, except when the weather is such as to
render it dangerous to remain at the beds: Pro-
vided, the terms of this section shall not apply
to the taking of oysters for the purpose of re-
planting the same in any of the waters of this
State. Acts 1889, p. 143.
As to provision in penal code, see P. C, § 616.
§ 1939. (§ 1693.) Non-residents forbidden to
procure beds in this State. — It shall not be law-
ful for any person or persons, corporation or
corporations, or agents thereof, who are engaged
in any other State in the business of shipping or
canning oysters, to procure the oyster-beds of
this State. Acts 1890-1, p. 214.
As to provision in penal code, see P. C, § 620.
§ 1940. (§ 1694). Unlawful to use scoop, etc.,
in certain waters. — It shall not be lawful to take
or catch any oysters in any of the waters of this
State with or by a scoop, rake, drag, or dredge,
or by the use of any other instrument than the
oyster-tongs heretofore in general use for taking
oysters, except within the waters more than one
thousand feet distant from the shore-line at ordi-
nary mean low tide. Oysters may be taken by
any means or device from any private bed by
the owner or lessee thereof, and for the purpose
of transplanting to other beds in this State from
territory unleased within said limits of one thou-
sand feet; but, in the last case, only upon the
consent and approval of the county commission-
ers for the county within which said territory
may be located, or upon the consent and ap-
proval of the ordinary for those counties which
may have no board of county commissioners.
Acts 1889, p. 143; 1905, p. 73.
§ 1941. (§ 1695). Beds in waters not wider than
one hundred and thirty feet, private property. —
When oyster-banks or beds of oysters of natural
formation are within rivers or creeks of this
State, not exceeding one hundred and thirty feet
in width at ordinary mean low tide, and not used
for purposes of navigation, the persons having
the ownership of the lands of both sides of such
creeks or rivers shall have the exclusive right to
the usufruct of said banks or beds of oysters as
aforesaid: Provided, however, that the rights of
opposite riparian proprietors shall only extend
to the middle of the stream. Acts 1889, p. 143.
For almost identical provision, see § 1957. As to bound-
aries, see §§ 3635 et seq.
§ 1942. (§ 1696.) Leasing and staking lots. —
The county commissioners in any county, or,
where there is no board of county commission-
ers, the ordinary for said county, upon the ap-
plication of any person for certain territory in
any of the navigable waters of this State, and
within a distance of one thousand feet from the
shore at ordinary mean low tide, upon satisfac-
tory proof, on hearing had before the county
commissioners or the ordinary, that said terri-
tory has been duly staked off at the line of ordi-
nary mean high water where the leased ground
is opposite the public marshes of this State, and
in all other cases at the line of low water, except
where the consent of the adjacent landowners is
obtained for the staking off at said line of high
tide, for a period of thirty days before the hear-
ing of such application, shall execute a lease for
twenty years, with a privilege of renewal for
thirty years more, to such applicant as may
first apply for such territory, where there are no
natural beds as evidenced by the survey referred
to in section 1946. Any person who has already
planted any ground within said county shall have
the preference in obtaining the lease of such
grounds; and upon application of any other per-
son for said territory, the proper authorities for.
executing such leases shall give thirty days no-
tice of such application, by posting a notice at
the court-house door, and if the person who has
planted oysters thereon shall make application
therefor before the expiration of said thirty
days, it shall be leased to him, but otherwise to
the aforesaid applicant: Provided, that the pro-
visions of this section shall not apply to oyster-
beds staked out under laws heretofore existing^
nor to territory within one hundred and twenty-
feet of the line of ordinary mean low tide in front
of and adjoining habitable high land returned for
taxation. Acts 1890-1, p. 214.
This section does not authorize any person, in his ca-
pacity as a private citizen, to object to the granting of a
lease of territory for planting and cultivating oysters, on
the ground that the applicant for the lease has not taken
the proper preliminary steps for obtaining the same; nor
does the section confer upon one claiming as owner the
right to set up, in resistance to the granting of the lease,
the contention that the territory in question is not, be-
cause of its being his private property, a proper subject-
matter of the lease applied for. Parsons v. Prey, 115 Ga.
955, 42 S. E. 234.
§ 1943. (§ 1697.) Planting-grounds, etc.— Said
lease shall convey the exclusive privileges of bed-
ding or planting oysters thereon to the distance of
one thousand feet beyond mean low-water mark,
and within such limits each applicant shall be en-
titled to not more than five acres of such territory,
which need not be continuous, Ibut within such al-
lotment* such lessee shall not be entitled to more
than two planting-places: Provided, that such
lessee deposits at least one hundred bushels of dead
shells, or plants one hundred bushels of oysters to
every acre of planting ground, at the rate of
one acre or more each year, until five acres have
been planted: And provided also, that he cause to
be placed, at intervals of one hundred yards along
the line of ordinary mean high water of such
planting-ground in all cases where the leased
ground is opposite to the public marshes of this
State, and in all other cases at the line of low
water, except where the consent of the adjacent
landowners is obtained to the staking off at said
line of high water, a post not less than six feet
above ground, and hoard attached, the latter not-
less than one foot square, upon which the black
letter "O," not less than eight inches long, has
been plainly painted on a white ground: Provided
also, that along navigable streams subject to entry
under this Chapter the right of no lessee of a five-
[ 450
§ 1944
OYSTERS
§ 1950
acre tract shall extend beyond the middle of the
stream: Provided further, that in the event that
said lessee shall fail to comply with the require-
ment of this section as to the cultivation of his
territory, he shall forfeit so much of his territory
as has not been cultivated as hereinbefore required,
and if said lessee shall, at any time during the term
of his lease, abandon said territory and cease to
cultivate oysters for the space of one year, said
lease shall be void and territory shall revert to
the State. Acts 1890-1, p. 214.
As to beds in waters of a certain width, see § 1941. As
to planting leased territory, see § 1949.
The right to proceed in court to have the forfeiture of
the lease declared vests in the state alone. Jones v.
Oemler, 110 Ga. 202, 203, 35 S. E. 375.
§ 1944. (§ 1698.) Notice of application for lease,
advertised. — Upon the application of any person, or
persons, made to the county commissioners of the
county within which said territory may be situated,
or, where there are no county commissioners, then
to the ordinary for said, county, for territory within
the navigable waters of this State, for which no
application has already been duly made, and which
is located more than one thousand feet distant
from any shore-line at ordinary mean low tide, up-
on which to cultivate oysters or propagate the
same by artificial method.s, which said application
shall particularly describe the territory desired,
said county commissioners or said ordinary shall
require the applicant to advertise in the newspaper
which is the official paper of the county in which
the territory is located, for thirty days, a notice
of said application, particularly describing the ter-
ritory desired and its location in reference to the
nearest lands, and upon the expiration of said ad-
vertisement the said county commissioners or said
ordinary shall grant, in the name of and in behalf
of the State, to such person or persons, by written
instrument, a lease of such territory for fifty years
for the purpose of cultivating and propagating
oysters, and thereupon the person or persons to
whom the same may be leased shall, under the di-
rection of the county surveyor, distinctly stake or
buoy the same, and shall cause a survey of said
territory to be made and placed on file in the of-
fice of the clerk of the superior court for record
with said lease: Provided, that no applicant shall
be entitled to receive from said authority a lease
for more than five hundred acres within said
waters; and provided further, that the planting,
cultivating, and. dredging of oysters therein shall
in nowise interfere with navigation. Acts 1889, p.
143.
§ 1945. (§ 1699.) Lease within one thousand
feet, when. — Whenever it is impracticable to ob-
tain as much as five hundred acres of continuous
territory beyond the limits of one thousand feet
from mean low water, or whenever, in the judg-
ment of the county commissioners or the ordinary,
it is for the best interests of the State so to do,
said county commissioners or ordinary, upon
due application thereof, ma}' grant leases to ex-
tend within said limits of one thousand feet to the
line of low water where the land adjacent thereto
consists of marshes, and to a point one hundred
and twenty feet from said line of low water where
the land adjacent thereto is habitable high land
returned for taxation. If impracticable to main-
tain the ibuoys in position, in consequence of the
strength of the current, or for other cause,
ranges and range-stakes, if shown on the survey
recorded in the office of the clerk of the superior
court, shall be deemed sufficient. Acts 1890-1, p.
214.
§ 1946. (§ 1700.) Natural beds. — The natural
oyster-beds of the State shall forever remain the
property of this State, open to all her citizens for
the procuring of oysters for consumption, sale,
seed, or propagating purposes; and for the better
securing of this purpose, the charts made and pub-
lished in consequence of a resolution passed by the
legislature of this State, by United States Geodetic
Survey, known as "Bulletin No. 19," shall be evi-
dence of the location of such natural oyster-beds
and of vacant ground: Provided, that wherever
beds, shown by said "Bulletin No. 19" to be nat-
ural oysterbeds shall as a matter of fact not ex-
tend (below low-water mark, then the territory be-
low low-water mark shall nevertheless be open to
lease. Except as herein stated, it shall not be law-
ful for the county commissioners or ordinary to
grant leases to any grounds shown on said, "Bulle-
tin No. 19" to contain a natural bed, and it shall
be lawful for them to grant leases on any or all
territory indicated on said "Bulletin No. 19" as
vacant. Acts 1890-1, p. 214; 1898, p. 47.
As to rights of citizens to take oysters, see § 1955.
§ 1947. (§ 1701.) Tonging and catching at night.
— It shall not be lawful to tong or catch oysters
between sunset and sunrise, unless an unob-
structed light six feet above the gunwale be car-
ried on board the boat used for such purpose.
As to provision in penal code for tonging at night,
see P. C, § 621.
§ 1948. (§ 1702.) Former leases validated.—
Nothing in this Chapter shall be construed to af-
fect the titles of the lessees of oyster territory
which has heretofore been leased by county com-
missioners or ordinaries, and all leases executed
by them before September 22d, 1891, or any as-
signments which have 'been made of the leases of
five-acre tracts are hereby confirmed and validated.
§ 1949. (§ 1703.) Leased territory planted, how.
— Each person applying for and receiving a lease
of five hundred acres or less shall plant at least
one tenth of said leased territory, at the rate of not
less than one hundred bushels of oysters or shells
per acre, in each and every year, beginning with
the planting season next after a lease therefor has
been executed, and for a failure thereof the lessee
of said territory shall forfeit to the State so much
of said territory as is not so cultivated as pre-
scribed hy this section; and if said lessee shall at
any time during the term of his lease abandon
said territory, and cease to cultivate oysters
thereon for one year, said, lease shall be void,
and said territory revert to the State. Casters
shall not be taken from said territory for sale or
for consumption until at least one year after oys-
ters or shells have been planted thereon in the
proportions hereinbefore prescribed. Acts 1889,
p. 143.
As to planting grounds, see § 1943.
§ 1950. (§ 1704.) Leases recorded. — All leases
and transfers thereof shall be recorded
[451]
§ 1951
POSTING LAND AND REGISTRATION
§ 1961
by the persons to whom such leases or
transfers are made, in the office of the clerk of
the superior court, in like manner as deeds of
real estate are required to be recorded,, in a sepa-
rate book to be kept for that purpose; but no lessee
of tracts larger than five acres shall be authorized
to sublet or assign his lease, or any portion of the
territory conveyed thereby, until he shall have
reduced to cultivation at least one tenth of the ter-
ritory leased by him.
§ 1951. (§ 1705.) One dollar per acre. — The per-
son or persons to whom such leases are made shall
pay to the authorities making such leases the sum
of one dollar for each and every acre so leased, and
all money so paid shall be appropriated to the
school- fund of the State; and in addition to said
sum, a fee of fifty cents for leases of five-acre
tracts or less, and for all leases of territory be-
yond said limit of one thousand feet a fee of two
and one half per cent., estimated upon the amount
paid for the territory thus leased, shall be paid to
the authority making the lease. Acts 1889, p. 143.
§ 1952. (§ 1706.) Leases approved by attorney-
general. — The applications and leases, hereinbe-
fore provided for, shall be in manner and form
as shall be approved by the attorney-general of
this State.
§ 1953. (§ 1707.) Removing oysters from private
beds, or marks. — It shall not be lawful, without
authority from the owner or owners, for any per-
son to take or catch any oysters from any private
bed., nor to remove or deface any oyster-marks.
As to provisions in penal code, see P. C, § 617.
§ 1954. (§ 1708.) Returnable for taxation.— The
lessees of all such leased territory shall return the
same for State and county taxation in the same
manner as other property is returned.
As to returns of interest in land, see § 1008.
§ 1955. (§ 1709.) Rights of citizens protected.—
No provision of this Chapter shall be so con-
strued as in any manner, during the open season
herein provided, to abridge or interfere with the
rights of any citizen of this State to enter upon
and take from any public beds oysters by the
use of such implements as may have been here-
tofore in general use in this State; and no pro-
vision of this Chapter shall be so construed as to
interfere with or abridge the wharfing privileges of
riparian owners. It shall not be lawful for any
applicant for territory upon which to replant
oysters to receive a lease for any of the beds or
planting grounds of any of the natural oyster beds
which are resorted to by the public for the pur-
pose of procuring oysters by the use of tongs for
consumption or sale.
As to right to obtain oysters from natural beds, see §
1946.
§ 1956. (§ 1710.) Planted oyster-beds protected.
— Where any person having taxable land upon the
banks or shores of any of the rivers or creeks of
this State shall plant beds of oysters upon them,
it shall not be lawful for any other person to take
from such beds of oysters: Provided, the same
shall 'be distinctly staked or otherwise marked.
§ 1957. (§ 1711.) Exclusive right of certain land-
owners,— When oyster-banks, or beds of oysters,
of natural formation, be within rivers or creeks
[4
of this State, not exceeding one hundred and
twenty feet in width, and not used for purposes
of navigation, the persons having the ownership
of the lands upon both sides of fuch creeks or
rivers shall have the exclusive right to the usu-
fruct of such banks or beds of ovsters as aforesaid.
CHAPTER 8.
Posting Land and Registration.
§ 1958. Hunting on the land or fishing in the
water of another. — If any person shall hunt with
dogs, firearms, or in any other way on any lands,
enclosed or unenclosed, of another, or fish with
hooks, seine, nets, or in any other way in any
streams, lakes, ponds, or lagoons of another, after
being forbidden so to do or when ordered to de-
sist therefrom by the owner thereof, or by the
person having the same in charge, or his agent,
such person shall be guilty of a misdemeanor. It
shall be the duty of the landowners to post a no-
tice in two or more places on each tract of land
owned by the party posting the same, forbidding
all persons to hunt thereon or fish in the streams,
ponds, lakes, or lagoons belonging to said land-
owners thereof. When said lands are so posted
such posting shall be held and deemed a legal
notice under this section. Acts 1882-3, p. 73;
1874, pp. 21, 22; 1878-9, p. 52; 1895, p. 63; 1897,
p. 36; 1903, p. 44.
For practically same provision, see § 1941. As to bound
aries, see §§ 3635, 3637.
As to punishment, see P. C, § 218.
§ 1959. Register for posting lands. — It shall be
the duty of the ordinaries of the several counties
of this State, or the commissioners of roads and
revenues in such counties where boards of com-
missioners of roads and revenues exist, to furnish
a suitable book, to be known as "the register for
posting lands," to the clerk of the superior court
of their respective counties, in which the land-
owner shall register his or her name, after having
first stated in the presence of the officer in charge
of said book that the two notices have already been
posted upon said landowner's land, as required
by the preceding section.
§ 1960. Posting and registration, effect of. —
The posting of the notices at two or more places
on each tract of land (although such notices, from
any cause, should thereafter be defaced, knocked
down, or destroyed) and the registering of the
landowner's name in the book, to be kept for
that purpose in the office of the clerk of the su-
perior court of each county in this State, shall be
a legal notice under this section.
§ 1961. Registration, how made. — It shall be
the duty of the receivers of tax returns of the
several counties of this State to carry said regis-
ter for posting lands with them on all their
rounds when receiving tax returns, and all land-
owners who have placed a notice at two or more
points on their lands as required by this Chapter
are hereby authorized to register their names in
the register for posted lands in the presence of
the tax-receiver of their county, in the same way
as if registered in the presence of the clerks of the
superior courts of their several counties; it be-
ing the intention of this Chapter to permit the
52]
§ 1962
STATE GEOLOGIST
§ 1971
landowners to register their names in the reg-
ister for posted lands, either in the presence of
the clerk of the superior court of their county, or
in the presence of the receiver of tax returns of
their county. At the time of the registering of
the names of the landowner, he shall also register
a description of the lands that have been posted,
giving the district in which said lands are located
and either the numbers of the lots or other de-
scription of the lands sufficient to put the public on
notice of the lands referred to. For registering
said name and description the officer in whose
presence the registry is made is authorized to
charge and collect a fee of twenty-five cents from
the person so registering.
§ 1962. Register, where kept. — The book known
as the "register for posted lands" shall be kept
in the office of the clerk of the superior court, ex-
cept while being used by the receiver of tax re-
turns while making his rounds; it being the pur-
pose of this Chapter to provide either the parties
posting the lands, as well as the parties desiring
to hunt or fish, the privilege and opportunity to
examine said register.
CHAPTER 9.
State Geologist.
§ 1963. (§ 1712.) State geologist.— The Gover-
nor shall appoint, with the consent of the advisory
board, a competent person as State geologist,
who shall have a thorough, scientific, and practi-
cal knowledge of the science of geology and min-
eralogy, and who is not connected with any school
or college as an instructor. The State geologist
shall enter upon the duties of his office on the first
day of July, 1890, and shall hold until removed by
the appointing power for inefficiency, incompe-
tency, or misconduct, or until the office is abol-
ished by the General Assembly. The office of
the State geologist shall be at the seat of govern-
ment. Acts 1889, p. 18.
§ 1964. (§ 1713.) Advisory board.— There shall
be an advisory board, consisting of the Governor
of the State (who shall be president of the board),
the commissioner of agriculture, the State school
commissioner, the State treasurer, the comp-
troller-general, the secretary of State, and the at-
torney-general. Four members present at any
meeting shall constitute a quorum for the trans-
action of any business. Acts 1894, p. 111.
§ 1965. (§ 1714.) Duty of geologist.— It shall be
the duty of the State geologist to give his atten-
tion to the administration of the affairs of the sur-
vey; to visit all parts of the State, so as to make
himself familiar with the needs of each section;
to supervise the work of his assistants, including
all reports submitted b}^ them for publication; to
undertake such field-work as his time will permit,
and to perform such other duties as properly per-
tain to his office. Acts 1894, p. 111.
§ 1966. (§ 1715.) Assistant State geologists. —
Two competent assistant State geologists shall be
chosen by the State geologist, who may remove
them at any time for incompetency, inefficiency,
or misconduct. So soon as a general outline of
a geological survey of the entire State shall have
[45
been made, the State geologist shall divide up the
work between himself and his assistants in such
way as shall be to the State's best interest, and
under His direction and control the corps shall
proceed to make a careful and complete geolo-
gical, mineralogical, and physical survey of the
State; to enter upon record, to be kept for that
purpose in his office, an accurate statement of the
extent of all water-powers, roads, springs, and
watercourses, and the climate, topography, and
general physical character of the country, and lo-
cate the belts of ores, useful minerals, and building
materials; to report characteristics and composi-
tion of soils, and the deposits of marls and phos-
phates; to collect, analyze, and classify specimens
of minerals, rocks, ores, fossils, and soils, and
enter the same on record; to cause to be pre-
served in a museum specimens illustrating the
geology, mineralogy, soil, and whatever else may
be discovered in the mineral or geological re-
sources of Georgia, having scientific or economic
value; and he shall make a report of the survey
of every county of this State, accompanied with
all necessary maps and illustrations. Acts 1894,
p. 112.
§ 1967. (§ 1718.) Survey of watercourses, lakes,
etc. — It shall also be the duty of said State geol-
ogist to make a survey of the watercourses, ponds,
lakes, and swamp region of Georgia, and submit,
in the reports provided for, a topographical map
showing the location, extent, means, and plans
of drainage, and also an estimate of the cost of
said drainage of the ponds, lakes, and swamps of
Georgia. The said State geologist shall also
make an estimate of the value and extent of the
lands to be reclaimed by said drainage. Acts
1894, p. 113.
§ 1963. (§ 1717.) Employment of topographers
and drivers. — The State geologist is hereby au-
thorized to employ two competent topographers
and four assistant topographers and two drivers,
as may be necessary, to carry out the purpose of
this Chapter.
§ 1969. (§ 1718.) State geologist to supervise. —
The State geologist shall have supervision of the
entire work of the survey, and shall be respon-
sible for the accuracy of the same. It shall be
the duty of the State geologist to make report to
the advisory board once in every three months —
to wit, on the second Wednesdays in March,
June, September, and December of each year.
§ 1970. (§ 1719.) No special surveys. — No indi-
vidual, firm, or corporation shall have the right
to call upon or require the State geologist to enter
upon any special survey for his or their special
benefit; but the survey is to proceed upon a. set-
tled plan for the benefit of the public, and inves-
tors and developers in general.
§ 1971. (§ 1720.) Supervision of expenses by
board. — The advisor}' board shall have the super-
vision of the money expenditures in the prosecu-
tion of the work contemplated: The State geol-
ogist shall make to the advisory board monthly
statements under oath, of all incidental expenses
necessarily incurred by himself and his assist-
ants, accompanied by proper vouchers, in the dis-
charge of their labors. The board shall audit such
3]
§ 1972
STATE BUREAU OF IMMIGRATION
§ 1983
accounts, item by item, and approve or reject the
same, as in .their judgment may be right. When
an account is allowed, the Governor shall draw
his warrant for the amount thereof. The Gov-
ernor, with the advice and consent of the board,
may at any time suspend the field-operations. Acts
1889, p. 18.
§ 1972, (§ 1721.) Office kept where.— The State
geologist shall keep his office in a room to be set
aside for that purpose by the Governor. Acts
1880-1, p. 129; 1889, p. 18; 1897, p. 115.
§ 1973. Salaries of geologist and assistants. —
The salary of the State geologist shall be forty-
five hundred dollars per annum, and each assist-
ant shall receive such salary per annum as shall
be determined by the advisory board of the geo-
logical survey on recommendation of the State
geologist: Provided, that each assistant shall not
receive* more than three thousand dollars per
annum. Acts 1902, p. 96; 1917, p. 52; 1925, p. 90.
Editor's Note. — This section has been amended twice since
it appeared in the Code of 1910. The Act of 1917 and the
Act of 1925, both increased the salaries enumerated.
§ 1974. (§ 1723.) Specialist.— The State geol-
ogist, with the consent of the board of advisement,
may employ a specialist, or specialists, at any
time. Acts 1880-1, p. 129; 1889, p. 18.
§ 1975. (§ 1724.) When results of surveys may
be published.— 'Neither the State geologist, nor
his assistants, shall disclose to any person, except
to the owner of the land, the result of a survey,
until the same is made public by publication of the
report by the advisory board. Acts 1894, p. 113.
§ 1976. (§ 1725.) Maps of surveys State prop-
erty.— The State geologist and his assistants shall
deposit, in the office of the Governor, all maps,
surveys, notes, or memoranda of surveys, when
the surveys are completed, which are hereby de-
clared to be the property of the State. Acts
1880-1, p. 129.
CHAPTER 10.
Phosphate Deposits, and Purchase of Native
Gold.
§ 1977. (§ 1726.) Rights of discoverers of phos-
phate deposits. — Whenever any person shall dis-
cover phosphate rock or phosphatic deposits in
the navigable streams or waters of this State, or
in any public land on their banks or margins,
and shall file with the secretary of State notice of
said discovery, and a description of the location
thereof, he shall be entitled to receive from the
secretary of State a license giving him, or his as-
signs, the exclusive right, for ten years from the
date of said license, of digging, mining, and re-
moving from the aforesaid location, and from an
area for a distance of live miles in any or all
directions therefrom, the phosphate rock and
phosphatic deposits that may be found therein:
Provided, that those receiving or holding such li-
cense shall in no way interfere with the free navi-
gation of the streams and waters of the State, or
the private rights of any citizen residing or own-
ing the lands upon the banks of the said navi-
gable rivers and waters of the State: Provided,
that no person or persons, natural or artificial,
shall have the privilege of locating a claim within
twenty miles of any other claim for which they
have received a license, during the continuance of
such license. Acts 1884-5, p. 125.
§ 1978. (§ 1727.) Fees to State.— Licenses shall
be granted upon the express condition that the
grantees shall pay to the treasurer of this State
the sum of one dollar per ton for every ton of
phosphate rock and phosphatic deposit mined and
removed from the said navigable rivers and
waters of this State and the banks and margins
thereof; said grantees shall pay the treasurer of
this State the sum of one hundred dollars as a
license fee before commencing business under said
license. Acts 1884-5, p. 125.
§ 1979. (§ 1728.) Affidavit and bond.— Before
commencing operations, the holders of each of
said licenses shall file, or cause to be filed in the
office of the treasurer of this State, an affidavit
and bond in the penal sum of twenty thousand
dollars, approved by the attorney-general, and
conditioned that the said holders shall make true
and faithful returns to said treasurer, annually, on
or before the first day of October, and oftener if
required by the said treasurer, of the number of
tons of phosphate rock and phosphatic deposits
mined and removed by him or them from the beds
of the navigable streams and waters of this State
and the banks or margins thereof, and shall
punctually pay to the treasurer of this State, an-
nually, on the first day of October, one dollar
per ton for every ton of phosphate rock and phos-
phatic deposits by him or them mined and re-
moved from the beds of the navigable streams and
waters of this State and the banks and margins
thereof during the year preceding. Acts 1884-5,
p. 125.
§ 1980. (§ 1729.) Lapse of license. — Any license
granted under the provisions of this Chapter shall
lapse and become void unless within three years
from the date of the license the privileges granted
are utilized and work in good, faith is commenced.
§ 1981. Duties of purchasers of gold bullion. —
Every person purchasing within this State, native
gold, gold bullion, gold dust, gold nuggets, or
gold amalgam shall keep a register in a book of
the date of purchase, amount purchased, name of
seller, of the lands from which it was obtained;
and ever}r such purchaser shall file, on or by the
first day of January, April, July, and October of
each year, with the ordina^ of the county of his
residence, a copy of the register kept as aforesaid
for the previous quarter. Acts 1899, p. 66.
As to punishment, see P. C, § 699.
§ 1982. Ordinary to make annual report. — Each
ordinary with whom such report has been filed
shall make an annual report of the same, by certi-
fied copy, on or by the fifteenth of January of
each year, to the State geologist, who shall keep a
record thereof, open for public inspection.
CHAPTER 11.
State Bureau of Immigration.
§ 1983. (§ 1730.) Commissioner of immigration.
— The commissioner of agriculture of this State
shall be ex-officio commissioner of immigration,
[454]
1984
PROTECTION OF TRADE-MARKS, ETC.
§ 1992
with the duties hereinafter enumerated. Acts
1894, p. 104.
§ 1984. (§ 1731.) Information to be collected
and arranged by him. — It shall be the duty of the
said commissioner to collect and arrange in syste-
matized order, in his office, full and accurate in-
formation as to the mineral, geological, metallur-
gical, argicultural, horticultural, and timber and
fishing resources of the State; the cost and pros-
pects of the profitable development and utilization
of the same; as to the adaptation of the soil of the
State and the counties thereof to the various
products of the temperate zone; as to the streams
and waters of the State and their adaptability to
navigation, manufacturing, and other purposes;
as to the advantages of the seaports of the State;
as to the facilities for transportation, both pas-
senger and freight, by water and by rail, with the
cost of same; as to the climatic, health, social, and
religious conditions of the State; as to the capital
invested in the various lines of manufacture in the
State and the records of the same as to profitable-
ness; and as to any and all other matters which
he may deem of interest to home-seekers, invest-
ors, and the general public: Provided, that all such
information shall be arranged according to coun-
ties, as far as practicable, and be so arranged as
to be readily accessible and intelligible to all
parties seeking' information along the lines herein
indicated. Acts 1894, p. 104.
§ 1985. (§ 1732.) Correspondence by him with
bureaus, societies, etc. — It shall be the duty of
the said commissioner to correspond with all
bureaus, societies, corporations, and organiza-
tions having for their purposes the development
of this State and of the Southern States of these
United States, the bringing of capital, home-
seekers, and acceptable immigrants of this and
to the said Southern States; to advise them as to
the resources and advantages of this State; to
communicate, correspond with, and furnish all
information to all persons seeking same along
the lines indicated. Acts 1894, p. 105.
§ 1986. (§ 1733.) Handbook to be prepared,
published, etc. — Said commissioner shall, from
the information collated and arranged as pre-
scribed, prepare, publish, and disseminate two
thousand copies of a handbook of this State,
neatly printed, bound, and arranged according to
counties, plainly and intelligibly setting out the
resources and advantages of the State to home-
seekers, investors, and the general public: Pro-
vided, that said handbook shall not cost in excess
of one thousand dollars. Acts 1894, p. 105.
§ 1987. (§ 1734.) Funds to be used.— The com-
missioner of agriculture is authorized to use and
appropriate to the carrying out of the objects
and purposes of this Article all moneys and funds
now unused in his office or to his credit in the
treasury of the State, or so much thereof as may
be necessary. Acts 1894, p. 105.
§ 1988. (§ 1735.) Sale of handbook.— The com-
missioner of agriculture and ex-officio commis-
sioner of immigration is authorized to sell to all
persons desiring said handbook as many copies
thereof as they may desire, at the actual cost
thereof. Acts 1894, p. 105.
[455 ]
CHAPTER 12.
Protection of Trade-marks, and Names of
Benevolent Organizations.
§ 1989. (§ 1736.) Trade-marks of labor unions.
— -Whenever any person, association, or union of
working men have adopted, or shall hereafter
adopt for their protection, any label, trade-mark,
or form of advertisement announcing that goods
to which such label, trade-mark, and form of ad-
vertisement shall be attached were manufactured
by such person or by a member or members of
such association or union, it shall be unlawful for
any person or corporation to counterfeit or imi-
tate such label, trade-mark, or form of advertise-
ment with intent to use the same for the purpose
of deceiving the public in the sale of the goods.
Acts 1893, p. 134; 1898, p. 118.
As to fraudulent trade marks, see § 4632. As to provi-
sions in penal code concerning trade marks, see §§ 254-257.
§ 1990. (§ 1738.) Union labels and trade-marks
filed with secretary of State. — Every person, as-
sociation, or union of working men that has
adopted or shall hereafter adopt a label, trade-
mark, or form of advertisement may file the same
for record in the office of the secretary of State
by leaving two copies, counterparts or fac-
similes thereof, with the Secretary of State. Said
secretary shall deliver to such person, association,
or union, a duly attested certificate of the record
of the same, for which he shall receive the fee of
one dollar; such certificate of record shall, in all
suits under this Chapter, be sufficient proof of
the adoption of such label, trade-mark, or form
of advertisement, and of the right of said person,
association, or union to adopt the same. No label
shall be recorded that probably would be mis-
taken for a label already of record.
§ 1991. (§ 1739.) Remedies against using coun-
terfeits.— livery such person, association, or union
adopting a label, trade-mark, or form of advertise-
ment as aforesaid may proceed by suit to enjoin
the manufacture, use, display, or sale of any such
counterfeits or imitations, and all courts having
jurisdiction thereof shall grant injunction to re-
strain such manufacture, use, display, or sale,
and shall award the complaint in such suits such
damages resulting from such wrongful manufac-
ture, use, display, or sale as may by said courts be
deemed just and reasonable, and shall require
the defendant to pay such person, association, or
union the profit derived from such wrongful man-
ufacture, use, display, or sale, and such court
shall also order that all counterfeits or imitations
in the possession or under the control of any de-
fendants in such case be delivered to an officer
of the court, or to the complainant, to be destroyed.
Acts 1893, p. 134.
As to equity as ground for relief, see § 4519. As to
when injunction granted, see .§ 5490. As to punishment,
see P. C, § 255.
§ 1992. (§ 1740.) Suits, how brought.— In all
cases where such associations or unions are not
incorporated, suits may be commenced and pros-
ecuted by any officer or member of such associa-
tion or union on behalf of and for the use of such
association or union.
As to representatives of a class representing all, see
§ 5415.
§ 1993
CERTIFIED PUBLIC ACCOUNTANTS
§ 1998
§ 1993. Name and style of benevolent and other
associations. — No person or organization shall
assume, use, or adopt, or become incorporated
under, or continue to use the name and style or
emblems of any benevolent, fraternal, social,
humane, or charitable organization previously
existing in this State, and which has been incor-
porated under the laws of this or any other State,
or of the United States, or a name and style or
emblem so nearly resembling the name and style
of such incorporated organization as to be a
colorable imitation thereof. In all cases where
two or more of such societies, associations, or
corporations claim the right to the same name,
or to names substantially similar as above pro-
vided, the organization which was first organized
and used the name, and first became incorporated
under the laws of the United States or of any
State of the Union, whether incorporated in this
State or not, shall be entitled in this State to the
prior and exclusive use of such name and the
rights of such societies, associations, or corpora-
tions, and their individual members shall be fixed
and determined accordingly. Acts 1909, p. 139.
For complete treatment of this subject, see 2 Cum. Dig.
712. As to punishment for wearing emblem, see P. C,
§ 258.
In General. — The right to the exclusive use of a par-
ticular name as between incorporated associations organ-
ized for beneficial and charitable purposes, etc., depends
upon priority of the act of incorporation, whether the
charter be derived from this State, the United States, or
any other State in the Union. As a general rule apper-
taining to fraternal, charitable, and beneficial associa-
tions, the right to use a particular name for the associa-
tion is dependent upon the prior use of the name in ques-
tion, or one so similar thereto as to lead to confusion,
regardless of whether such association is incorporated or
not. A fraternal order by adopting the same name which
was previously used by a fraternal association acquires
no additional right to the use of the name by incorpora-
tion. Incorporation in this State does not give the fra-
ternal corporation an exclusive right to use its corpo-
rate name as against prior use of the same name by a
fraternal association incorporated under the laws of a
sister State. Graves v. District Grand Lodge, 155 Ga.
147, 116 S. E. 613.
Section Constitutional. — This section is not violative of
the 14th amendment of the Constitution of the United
States. Emory v. Grand United Order, 140 Ga. 423, 78
S. E. 922.
Section Not Applicable to Voluntary Association. — This
section and the section following are for the protection
of any benevolent and other organization which is incor-
porated, against others using or adopting its name, style,
or emblems, and they can not be invoked by voluntary
associations. Faison v. Adair, 144 Ga. 797, 87 S. E. 1080.
Similar Names.— The name "Ancient Order of Odd Fel-
lows Leeds Unity" is substantially similar to and a col-
orable imitation of the name "The Grand United Order
of Odd Fellows in America." Emory v. Grand United
Order, 140 Ga. 423, 78 S. E. 922.
Evidence and Burden of Proof.— See Independent Order
v. Mack, 139 Ga. 835, 78 S. E. 336.
§ 1994. Injunction against infringement. —
Whenever there shall be an actual or threatened
violation of the provisions of the preceding sec-
tion of this Chapter, the organization entitled to
the exclusive use of the name in question, under
the terms of said section, shall have the right to
apply to the proper courts for an injunction to
restrain the infringement of its name and the use
of its emblems; and if it shall be made to appear
to the court that the defendants are in fact in-
fringing or about to infringe the name and style
of a previously existing benevolent, fraternal,
social, humane, or charitable organization in the
manner prohibited in said section, or that the de-
fendant or defendants are wearing or using the
badge, insignia, or emblems of said organization,
without the authority thereof and in violation of
said section, an injunction be issued by the court
under the principles of equity without requiring
proof that any person has been in fact misled or
deceived by the infringement of such name, or
the use of such emblem.
See notes to section immediately preceding.
For complete treatment of this subject, see 2 Cum. Dig.
713.
Equity will enjoin individuals, or a corporation, that
are using the name, insignia, and emblems of an ex-
isting benevolent and fraternal association to the injury
of the latter. Under the facts of this case there was no
abuse of discretion in granting the injunction. Faisan
v. Adair, 144 Ga. 797, 87 S. E- 1080; S. C, 148 Ga. 403,
96 S. E. 871.
Sufficiency of Evidence. — See Emory v. Grand United
Order, 140 Ga. 423, 78 S. E. 922.
CHAPTER 13.
Certified Public Accountants.
§ 1995. Certified public accountants, who are. —
Any citizen of the United States, residing and
having an officer for the regular transaction of
business in the State of Georgia, being over the
age of twenty-one years and of good moral char-
acter, and who shall have received from the Gov-
ernor of the State of Georgia a certificate of his
qualification to practice as a public expert ac-
countant, as hereinafter provided, shall be desig-
nated and known as a certified public accountant.
Acts 1908, p. 86.
As to penalty for acting without certificate, see P. -C,
§ 702.
§ 1996. No other person shall use such title. —
No other person shall assume such title or use the
abbreviation C. P. A., or any other words, letters,
or figures to indicate the person using the same
as such certified public accountant.
§ 1997. Who may use such title. — Every per-
son holding such certificate, and every copartner-
ship of accountants, every member of which shall
hold such certificate, may assume and use the title
of certified public accountants of the abbreviation
thereof, C. P. A.: Provided, that no other per-
son or copartnership shall use such title or ab-
breviation, or other words, letters, or figures to
indicate that the person or copartnership using
the same is such certified public accountant.
§ 1998. Board of examiners and examination. —
The Governor shall appoint a board of three ex-
aminers for the examination of persons applying
for certification under this Chapter. Two of said
examiners shall be public accountants who have
been in practice for at least five years, one of
whom shall be appointed for the term of two
years, and one for the term of three years, and
upon the expiration of each of said terms an ex-
aminer shall be appointed for the term of three
years, and after the year one thousand nine hun-
dred and eight these two examiners shall be cer-
tified public accountants. The other examiner
shall be a practicing attorney in good standing in
any of the courts of the State of Georgia, who
shall be appointed for the term of two years, and
upon the expiration of said term a successor shall
be appointed for the term of three years. The ex-
amination for certificates shall be based upon an
[456 ]
§ 1999
INCLOSURES AND STOCK
§ 2009
examination in theory of accounts, practical ac-
counting, auditing, commercial arithmetic, and
commercial law. Said examinations shall take the
place twice a year in the city of Atlanta, during the
months of May and November of each year, un-
der such rules and regulations as may be adopted
by the board. The fees provided by this Chapter
shall be twenty-five dollars for each applicant, from
which shall be paid the expenses incident to such
examination, including stationary, clerk hire, and
traveling expenses of the examining board. The
results of such examinations shall be certified to
the Governor, and filed in the office of the secre-
tary of State, and kept for reference and inspec-
tion for a period of not less than five years, and
the Governor to issue the certificates.
§ 1999. Certificate may be revoked. — The Gov-
ernor may revoke any such certificate for suffi-
cient cause, upon .the recommendation of the
board of examiners, who shall give written notice
to the holders thereof, and after he has had a
hearing thereon.
§ 2000. Examination may be waived, when. —
The board of examiners may, in its discretion,
waive the examination of any person who shall
have been for the three years immediately pre-
ceding August 17th, 1908, practicing in the State
of Georgia or a sister State as a public account-
ant, and who shall apply in writing for such cer-
tificate within three months after said date.
FOURTEENTH TITLE
Inclosures and Stock.
CHAPTER 1.
Estrays.
§ 2001. (§ 1742.) Who may take up estrays. —
Any person may upon his own freehold or the
highway thereto, or being in charge of one, and
not elsewhere, take up all estrays of animals of a
domestic or useful nature either for their labor or
flesh.
As Defense in Criminal Case. — It was error for the
court to refuse to charge this section where the animal
that defendant was charged with stealing was on or near
his premises and near other animals belonging to him.
Samples v. State, 18 Ga. App. 286, 89 S. E. 375.
§ 2002. (§ 1743.) Estrays, how disposed of. —
The take-up shall, within five days, exhibit said
animal to two freeholders of the militia district
where taken up, who shall take down in writing
a particular description of its marks, natural and
artificial (brands, stature, age, and color), and
annex thereto their appraisement of its value,
which description and appraisement shall be by
the taker-up, within five days more, handed to the
ordinary of the county. He shall, at the time of
handing the same to said ordinary, make an affi-
davit before him that the marks and brands of
said estray are correct, and have not been altered
or disfigured, to his knowledge, since he took
it up.
Cross References. — See § 2011. See also, 1 Cum. Dig. 393;
1 Enc. Dig. 461.
As to how impounded animals disposed of, see § 2034.
Strictly Construed. — The provisions of this section are to
be strictly construed. Lofton v. Garrison, 16 Ga. App.
616, 85 S. E. 927; Walker v. Collier, 61 Ga. 341.
"Marks" in other statutes refer to artificial marks only.
In this section both natural and artificial marks are in-
cluded. Churchill v. Georgia R., etc., Co., 108 Ga. 265, 268,
33 S. E. 972. See § 2016 and notes.
Who Is Freeholder. — The taker-tip of an estray will not
be liable because one of the appraisers was only a free-
holder to the extent of being interested in a homestead
estate. Houser v. Scott, 65 Ga. 425, 427.
Return of Appraisement. — Where the taker-up in good
faith and under advice from the ordinary took up an es-
tray he is not liable for failure to make return in five days.
Houser v. Scott, 65 Ga. 425. See note of this case, under
§ 2011.
§ 2003. (§ 1744.) Estrays, how advertised. —
Such ordinary shall then copy said appraisement,
description, and affidavit in the estray book, and
advertise substantial copies of the two first named
at the door of the court-house for sixty days, at
the place of holding justice's court of the district
where taken up, and in the public gazette where
the sheriff of the county advertises his sales.
As to the filing of the affidavit, appraisement and de-
scription, see § 2012.
After the sheriff of a county has selected a newspaper
as an advertising medium, the ordinary must publish his
advertisements therein. Coffee v. Ragsdale, 112 Ga. 705,
37 S. E. 968.
The ordinary's duties do not begin until the taker-up has
had the estray appraised and returned or forthcoming ac-
cording to law. Houser v. Scott, 65 Ga. 425.
§ 2004. (§ 1745.) Estrays, when sold.— If by the
end of that time the property is not proved and
taken away, the sheriff of the county shall ad-"
vertise and sell said estrays as he does property
under execution, stating it to be an estray and its
appraised value.
As to the sale of estrays, see § 2010.
§ 2005. (§ 1746.) Proceeds, how disposed of. —
The purchase-money, after deducting all lawful
expenses, shall be paid to the treasurer of the
educational fund of the county, to be paid to the
owner of the estray if property is not proved
therein within twelve months.
§ 2006. (§ 1747.) Estrays, how reclaimed by
owner. — Property may be proved by an affidavit
of ownership before the ordinary, and by filing
with him bond and security in double the ap-
praised value, payable to such ordinarjr, condi-
tioned to answer any demand thereon that may be
proved against the obligor within two years.
§ 2007. (§ 1748.) Conflicting claims, how tried.
— If more than one person claims said estray be-
fore delivery is made, or a counter-affidavit to a
claim is filed by any person, an issue shall be
made thereon and tried by a jury in the court of
ordinary, with privilege of appeal.
As to where claims of ownership made, see § 2012.
§ 2008. (§ 1749.) Expenses, how determined. —
The taker-up of any estray shall be entitled to and
receive such compensation as shall be awarded
and determined by the freeholders before whom
said estray may be exhibited, as provided in sec-
tion 2002 of this Code, and said freeholders are
empowered and required to award and determine
such compensation as to them may seem reason-
able and just, from all the circumstances in each
case. Acts 1866, p. 20.
§ 2009. (§ 1750.) Penalty against taker-up for
not appraising, etc. — The taker-up is liable to the
county or the owner, as the case may be, in five
[457]
§ 2010
MARKS AND BRANDS
§ 2018(1)
times the value of the estray, if, after taking it
up, he fails to have it appraised and returned, or
forthcoming, according to law (providential
causes only excepted) ; and if he appropriates it
to his own use, and fails to pay said forfeiture
after demand in writing by the ordinary, he is
guilty of a misdemeanor. Suit may also be
brought, either by the owner or county, for the
same. He is liable, in like manner, for any dam-
age caused by willful abuse or neglect of the
animal.
For criminal responsibility of taker-up for failure to
have estray appraised, see P. C, § 585.
Strictly Construed. — The positive requirement of the law
is that the taker-up of the estray shall have it appraised
by two freeholders of the militia district; and inasmuch as
the owner of the property may be deprived of it by this
proceeding, under the estray law, behind his back, it should
be construed strictly, and such is the rule of law applica-
ble to this class of cases. Walker v. Collier, 61 Ga. 341.
Where one in good faith and under advice from the or-
dinary took up an estray and had it appraised and returned
and it was held in readiness to meet the demand of the
owner, he was not liable for quintuple damages although the
return was made on the sixth day after the appraisement.
Houser v. Scott, 65 Ga. 425.
§ 2010. (§ 1751.) Sale of estrays.— If the prop-
erty is not of sufficient value to pay the expenses
of said proceedings, said ordinary may order it
sold by the sheriff, or constable of the district
where taken up, on the freehold where taken up,
after ten days notice at the court-house door, and
( at the place of holding justice's court of the dis-
trict in which said property is taken up: Pro-
vided, that if such estray or estrays be a sheep,
hog, or goat, it shall only be necessary for the
ordinary to advertise the same at the court-house
door of the district where taken up, and at the
court-house door of the county-site, for ten days,
without advertising the same in a public gazette.
Acts 1877, p. 17.
As to how estrays advertised and when sold, see §§ 2003,
2004.
§ 2011. (§ 1752.) Description and appraisement.
— Whenever any stock taken up in this State as
estrays shall be appraised at the value of twenty
dollars or less, it shall be the duty of the taker-
up to hand the description and appraisement pro-
vided by law, within the time prescribed, to the
justice of peace, or notary public ex-officio justice
of the peace, in the district where taken up, in-
stead of to the ordinary, and to make before such
justice or ex-officio justice the prescribed affi-
davit; and it shall be the duty of such officer to
order the sale of such estrays by the constable of
the district, on the freehold where taken up, after
ten days notice at the door of the courthouse of
the county and at the place for holding justice's
court in said district, and such sale shall take
place pursuant to such order. Acts 1884-5, p. 146.
§ 2012. (§ 1753.) Filing papers, fees, claims,
and costs.. — The said justice shall file the affidavit
and appraisement and description in his office, and
shall at once enter the case on his docket, to-
gether with the order of sale, and for the services
thus rendered shall receive the sum of fifty cents.
All claims of ownership of such property made
before sale shall be made in such justice's court,
under the same rules and regulations provided for
hearing the same before the court of ordinary, and
the costs in such cases shall be the same as now
provided by law for similar services in justice's
court. Acts 1884-5, p. 146.
As to estrays reclaimed by owner, see § 2006.
§ 2013. (§ 1754.) General estray laws applicable.
— All the laws with reference to estrays, and
with reference to the disposition of the proceeds
of sale, shall apply to the class of estray provided
for in section 2011 and 2012, except in so far as
the same are altered by the said two sections.
Acts 1884-5, p. 146.
§ 2014. (§ 1755.) Abandoned and diseased ani-
mals, how dealt with. — For the purpose of putting
an end speedily to the suffering of hopelessly di-
seased and disabled animals, any person finding
any domestic animal which is abandoned, gland-
ered, or otherwise diseased or injured past re-
covery and not properly cared for, may apply to
any justice of the peace of the county, who may
summarily decide whether such animal should be
destroyed, after giving notice to the owner, if
known, whenever such notice can be given with-
out defeating the object of this section. The or-
der authorizing the destruction of such animal
shall not defeat the owner's claim for damages
against the person destroying or procuring the
destruction of such animal. Acts 1878-9, p. 183.
§ 2015. (§ 1756.) Stone-horses may be gelded,
when. — If any stone-horse above eighteen
months old shall be found running at large, it
is lawful for any person to take him up and take
him before the nearest justice of the peace, and,
by permission of said justice, may geld the same,
taking care that it is done by a person competent
to do so, and that the horse is properly cared for
afterwards, the expenses of which shall be paid
by the owner.
CHAPTER 2.
Marks and Brands.
§ 2016. (§ 1757.) Marks and brands must be re-
corded.— All persons having marks and brands on
cattle, or other property in' this State, shall have
them recorded by the ordinary of the county
where the owner resides, or, if a non-resident,
where the property uses, in a book kept by him
for that purpose.
As to the number of marks allowed, see § 2018 (1).
Artificial Marks Intended. — If the statute uses the word
"marks" and not accompanied by any explanatory lan-
guage showing that both natural and artificial marks are
meant, the term embraces only those marks made by ar-
tificial means. Churchill v. Georgia R., etc., Co., 108 Ga.
265, 33 S. E. 972.
§ 2017. (§ 1758.) Preference in favor of marks
and brands recorded. — If property shall be in dis-
pute between one whose marks and brands are
recorded, and one whose are not, both having the
same mark and brand, and such property is found
in possession of him whose marks and brands are
recorded, the party claiming can not get posses-
sion of the same, but must sue, and prove prop-
erty and damage.
§ 2018. (§ 1759.) Oldest record has preference.
— When two or more persons have the same
marks and brands, and both are recorded, the
prima facie .right is with the older record.
§ 2018(1). But one mark and brand allowed. —
No person or corporation owning live stock in
[458]
§ 2018(2)
FENCES
§ 2025
this State running at large on the open ranges
thereof shall be allowed to have but one mark and
brand. Acts 1915, pp. 50, 51.
As to violation, see § 585 (1), P. C.
§ 2018(2). Increase, mark and brand of. — Should
any person or corporation buy live stock for
breeding purposes, they shall mark and brand the
increase thereof in the mark and brand they al-
ready have; in the event they have no mark and
brand, they may adopt the mark and brand so
purchased. Acts 1915, pp. 50, 51.
§ 2018(3). Mark and brand single. — Any per-
son or corporation who already have two or more
stocks of live stock marked in different marks and
brands shall, from and after the passage of this
Act, mark and brand the increase thereof in one
mark and brand. Acts 1915, pp. 50, 51.
§ 2019. (§ 1760.) Marking, etc., by whom done.
- — Marking and branding shall not take place ex-
cept by or under the supervision of some com-
petent person, on pain of forfeiting fifty dollars
for each violation, to be recovered at the suit of
the informer, who shall have one half the re-
covery; the other half goes to the educational fund.
§ 2020. (§ 1761.) Marks, etc., how changed.—
Marks and brands once recorded shall not be
changed, so as to be of any avail to the owner,
without leave is first granted by the ordinary,
and a minute made thereof.
CHAPTER 3.
Inclosures and Fences.
ARTICLE l.
Fences.
§ 2021. (§ 1762.) Lawful fence.— All fences or
inclosures, commonly called worm fences, shall be
live feet high, with or without being staked and
ridered, and from the ground to the height of
three feet the rails shall not be more than four
inches apart. All paling fences shall be five feet
from the ground, and the pales not more than
two inches apart.
For full treatment of fences, see 6 Cum. Dig. 172, 6 Enc.
Dig. 180.
Construed with Local Option Statute. — The code provi-
sions touching fences and the local option statutes engrafted
upon it are to be read, construed and applied as if there
had never been but one statute on the subject. Mathis v.
Jones, 84 Ga. 804, 11 S. E. 1018; Camp v. Tompkins, 84
Ga. 812, 11 S. E. 1021.
Coterminous landowners may by agreement, assume an
obligation to maintain a partition or line fence, each agree-
ing to keep up a designated part, and the validity of this
obligation is not affected by the fact that they did not con-
template maintaining a lawful fence under this section.
Collins v. Cochran, 121 Ga. 785, 49 S. E. 771. But see note
on Tumlin v. Parrott, 82 Ga. 732, 9 S. E. 718, under §
2026, where it was held that an agreement between the
parties to dispense with a dividing fence is not the equiv-
alent of an actual lawful fence to justify the killing of
stock.
Average Height. — Where the fence is too low at some
points and too high at others, its average height will not
make it a legal fence. Hamilton v. Howard, 68 Ga. 288.
§ 2022. (§ 1763.) Inclosures by ditches, etc.—
Any inclosure made by means of a ditch or trench
shall be three feet wide and two feet deep; and if
made of both fence and ditch, the latter shall be
four feet wide, and the fence five feet high from
the bottom of the ditch.
See note to § 2021.
§ 2023. (§ 1764.) Wire fence.— The following in-
closure shall be deemed and held to be a lawful
fence: Any inclosure made by stretching not less
than six horizontal strands of barbed wire be-
tween posts firmly set in the ground or between
growing trees not more than ten feet apart, the
bottom wire to be not more than four inches from
the ground, the next wire to be not more than
four inches from the first, the next wire to be not
more than six inches from the second, the next
wire to be not more than eight inches from the
third, the next wire to be not more than ten inches
from the fourth, and the topmost wire to be not
less than four and a half feet from the ground,
with a plank strip not less than four inches in
width either above or below the topmost wire.
All fences known as woven wire fences con-
structed of substantial wires of size and weight
not less than quality known as American or Page
number twelve wire, and of not less than ten
strands of horizontal wires securely stayed by
vertical wires of similar character from top to
bottom, with spaces between the vertical wires
of not more than twelve inches, and with spaces
between the horizontical wires as follows: First
wire not more than three inches from the general
surface of the ground; first, second, and third
spaces not more than four inches; fourth, fifth,
and sixth spaces not more than five and one half
inches, and the remaining spaces not more than
nine inches; the total height of fence from ground
to top will be not less than four feet. Fences
constructed as above of woven wire of less height
than four feet, and not lower than twenty-six
inches, with horizontal strands or barbed wire
above, and with horizontal spaces from top
barbed wire to woven wire not over twelve
inches, the top barb being not less than four feet
from the ground, shall be deemed lawful fences:
Provided, said fences are tightly stretched and
securely fastened to trees or posts firmly set in
the ground, not more than one rod apart. Acts
1878-9, p. 165; 1893, p. 129; 1882-3, p. 139; Acts
1904, p. 64.
§ 2024. (§ 1765.) Not applicable to "no fence"
counties. — The provisions of the preceding sec-
tion shall not apply to any county in this State
now having, or that may hereafter have , in op-
eration the "no fence" or stock law.
As to fences on lines of stock-law districts, see § 2044.
A fence three feet high, and composed of two wires arm^d
with projecting barbs, is not such a fence as will justify a
railroad company whose line is enclosed thereby in relax-
ing the full measure of diligence required by law in guard-
ing against injuries to live stock from the running of lo-
comotives and cars. Atlanta, etc., Railroad v. Hudson, 62
Ga. 679, 680.
In stock-law counties land lines supply the place of the
statutory fence. Crowder v. State, 10 Ga. App. 355, 73 S.
E- 424.
ARTICLE 2.
Proceedings in Case of Damage by Animals.
§ 2025. (§ 1766.) When owner is liable for tres-
pass, etc. — If any trespass or damage shall be
committed in any inclosure, not being protected
as aforesaid, by the breaking in of any animal, the
[459]
§ 2026
WHEN WATERCOURSES AND LINES ARE FENCES
§ 2031
owner of such animal shall not be liable to an-
swer for the trespass; and if the owner of the
inclosure shall kill or injure such animal in any
manner, he is liable in three times the damage.
See 1 Cum. Dig-. 457; 1 Enc. Dig. 389-391.
As to lawful fences, see §§ 2021-2023.
Strictly Construed. — The proceeding for triple damages is
penal in its nature and should be strictly construed. Lock-
ett v. Pittman, 72 Ga. 815; Lee v. Nelms, 57 Ga. 253.
Necessity of a Legal Fence. — The law defines what con-
stitutes a legal fence; and there is no distinction made
as to the different animals which are likely to enter into
an enclosure, making the fence of one height for one class
and another height for another, and if the fence is not a
legal fence, the killing of the animal is not justified, al-
though the fence was sufficient to keep out that class of ani-
mals. Hamilton v. Howard, 68 Ga. 288.
The protection referred to in this section is that of a law-
ful fence as defined or described in the three preceding sec-
tions. Tumlin v. Parrott, 82 Ga. 732, 9 S. E. 718.
Damages to crop can not be set-off against action for
trespass on animal where the fence around the crop is not
a legal fence. Hamilton v. Howard, 68 Ga. 288.
Owner of Inclosure. — One whose farm is enclosed together
with an adjoining farm by a fence common to both and
who uses a barn situated within the enclosure on the
adjoining farm is deemed to be an owner of an enclosure.
Crawford v. Crawford, 88 Ga. 234, 14 S. E. 609.
Liability of Employer. — An employer is not liable for
triple damages for the killing of plaintiff's animal, unless
done by his command or assented to by him. Lockett v.
Pittman, 72 Ga. 815.
Declaration and Other Pleadings. — The declaration under
this section is not amendable by adding a count praying
exemplary damages independently of this section. Tumlin
v. Parrott, 82 Ga. 732, 9 S. E. 718.
This section is highly penal and when the large penalty
which it prescribes is sought to be recovered, the special
conditions to rest it on this section must appear in the
plaintiff's pleadings. Lee v. Nelms, 57 Ga. 253.
§ 2026. (§ 1767.) When owners of inclosures
may kill stock. — When fences are made pursuant
to law and any animal breaks in, the owner of the
inclosure shall not kill or injure him for the first
breaking, and not until after notice is given to the
owner or agent, if possible, but said last-men-
tioned owner shall be liable for double the dam-
age done by his stock.
See 1 Cum. Dig. 460.
As to lawful fences, see §§ 2021-2023.
Effect of Agreement.— An agreement between the parties
to dispense with a dividing fence is not the equivalent of
an actual lawful fence upon the dividing line so as to jus-
tify the killing of stock escaping by negligence of one of
the parties and depredating on the premises of the other.
This section contemplates actual fences and not contracts
to dispense with them. Tumlin v. Parrott, 82 Ga. 732, 9
S. E. 718.
§ 2027. (§ 1768.) Poisoning crops.— If stock is
killed or injured from poisoning crops, or other
poison upon the premises, the presumption is that
it was done by the person in possession and
charge of the same.
ARTICLE 3.
Gates.
§ 2028. (§ 1769.) Erection of gates.— It shall be
lawful for any person living on or near the line,
and owning or controlling land in counties and
districts of this State, in one of which the "fence
law" is of force, and the adjoining counties and
districts have adopted the "no-fence law," to
erect, on any highway or public road on the line
of said county and districts, gates, which gates
shall be self-latching, opening each way, and shall
be kept in good repair by the person or persons
so erecting said gates, and upon failure to do so
the same shall be removed as other obstructions
across public roads; and said person or persons
shall have hitching-posts placed on each side of
said gate or gates. Acts 1884-5, p. 128.
As to gates erected under the stock-law, see § 2047. As
to penalty for opening and leaving open gates on high-
way, see § 2029, P. C, § 548.
§ 2029. (§ 1770.) Leaving gates open. — After
said gates shall have been so erected, should any
person or persons open and leave the same open
or in a condition for stock to enter, said person
or persons shall be guilty of a misdemeanor. Acts
1884-5, p. 128.
See P. C, § 548 for the same provision.
ARTICLE 4.
Watercourses and Lines Fences, When.
§ 2030. (§ 1771.) When watercourses are
deemed fences.— All watercourses that are or have
been navigable, as far as navigation has ever ex-
tended up said streams, shall be deemed and con-
sidered fences, whenever, by reason of freshet or
otherwise, fences can not be kept on said streams,
and shall be subject to the rules applicable to
other fences.
§ 2031. (§ 1772.) Lines o£ county and district
fences, when. — In each and every county and dis-
trict in this State the boundary lines of each lot,
tract, or parcel of land in said counties and dis-
tricts shall be, and the same are hereby, declared
a lawful fence: Provided, that this section shall
not become operative in any county or district
of this State which has not heretofore abolished
or removed fences, either by a vote of the people
or in pursuance of legal or illegal legislative action;
or which has not heretofore abolished or removed
fences by an election, although not held at the
time prescribed in Act approved September 5th,
1883, unless by an election and in the manner
provided for in section 2036. Acts 1892, p. 105;
1890-1, p. 60.
As to elections for no fences, see §§ 2036, 2037. As to
streams as fences, see § 2050.
Constitutionality. — The act approved November 26th, 1890,
after which the foregoing section is modeled, amending the
fence laws of the state and repealing § 1449 of the Code of
1882 (Acts of 1890-91, vol. 1, p. 69), is a general law, and is
constitutional. It operates generally throughout the whole
state. Every county in the state may avail itself of the
provisions of this act, and of the one of which it is amend-
atory. Whenever and wherever an election is held and
fences are abolished by a vote of the people, this act ap-
plies. No county or section of the state is excluded from
its operation. Thomas v. State, 92 Ga. 1, 6, 18 S. E. 44.
Compared with Section 2780.— This section and §§ 2032-2035
dealing with stock laws are not in pari . materia with §
2780 and 2781 and do not modify or alter the rule of dili-
gence to be observed in the running of trains. Central
Railroad v. Hamilton, 71 Ga. 461.
Election Not Reviewable. — The election abolishing fences
is not reviewable, the common law remedy by quo war-
ranto is not applicable to the case and the courts can not
inquire into the legality of the election. Skrine v. Jack-
son, 73 Ga. 377.
When Territory Changed. — Boundary lines are declared
a lawful fence in every county and district, if the lawful
voters of such districts or counties vote for no fence at
an election held for that purpose and if the no-fence law
had become operative throughout the entire limits of a
county, it would still be of force in that portion of its ter-
ritory cut off into a new county, where the latter was
carved entirely from the territory of the former. Parker
v. Smiley, 153 Ga. 786, 113 S. E. 150.
When the lines of a militia district are legally changed,
the territory thus added to a district becomes subject to
the system of fences or stock law which prevails in this
district. Dew v. Smith, 130 Ga. 564, 568, 61 S. E. 232.
460
§ 2032
IMPOUNDING ANIMALS
§ 2034
ARTICLE 5.
Impounding Animals.
§ 2032. (§ 1773.) Animals shall be confined.—
No horse, mule, cow, or hog, or any other ani-
mal or animals, used or lit either for food or la-
bor, shall be permitted to run at large beyond the
limits of the lands of its owner or manager. Acts
1872, p. 34.
See notes to § 2031.
As to hogs running at large, see § 2052.
Sections 2032-2035 are not in pari materia with §§ 2780
and 2781. Central Railroad v. Hamilton, 71 Ga. 461.
§ 2033. (§ 1774.) Animals impounded, when. —
If any of the animals enumerated in the forego-
ing section shall commit any trespass or damage,
or shall be found going at large on the premises
of any other person than the owner of such
animals or stock, whether inclosed or uninclosed,
and whether such animals wandered from the
premises of the owner in the county in which the
trespass was committed or from another county,
it shall be lawful for the owner of such premises
to impound such animals and retain them until
the owner thereof shall make full satisfaction or
reparation for the damages committed by such
animals, including all costs and expenses, unless
disposed of according to the provisions of the
following sections. Acts 1872, p. 34.
See 1 Cum. .Dig. 463, 464.
As to the impounding of hogs, see § 2054.
By common law, cattle wandering about damage feasant
could have been taken up and impounded. King v. Ford,
70 Ga. 628.
Application in Stock-Law Districts. — The owner of prem-
ises in a stock-law district may lawfully impound animals
going at large upon his premises. Dew v. Smith, 130 Ga.
564, 61 S. E. 232.
Injunction to Restrain Impounding. — Where the stock -
law had not been validly adopted in a district, an injunc-
tion will be granted to prohibit the impounding of animals
as if the stock-law had gone into effect. Johnson v. Tan-
ner, 126 Ga. 718, 721, 56 S. E- 80. See also Beaver v. Lowe,
145 Ga. 52, 88 S. E. 573.
Expenses. — There can be no recovery for expenses of main-
taining stock pending suit for damages. Hamil v. Cox, 90
Ga. 54, 16 S. E. 346.
§ 2034. (§ 1775.) Impounding animals, how
disposed of; and damages, how assessed. — In case
any of the said animals shall be impounded under
the provisions of the preceding section, it shall
be the duty of the party so impounding them to
give them all necessary care, feed, and attention,
for which he shall have such compensation as is
allowed sheriffs for like care, feed, and attention
to stock. And it shall also be his duty to give the
owner, if known, notice of the fact of such im-
pounding in twenty-four hours, and if not known
or ascertained within three days from the taking
up and impounding, such animals shall be dis-
posed of as provided by law in cases of estrays;
except that in case any such animal or animals
shall be sold under the provisions of law, the
proceeds of such sales, after the payment of legal
costs, including advertising, shall be applied first
to the payment of the damages sustained by the
aggrieved party, including compensation for the
care, feed, and attention. In case of disagreement
between taker-up or party claimed to be dam-
aged, and the owner of such animal or animals,
as to the amount of damages sustained on account
of the alleged trespass of such animal or animals,
or for the expenses for care, feed and attention,
the aggrieved part}- ma}r make complaint to the
justice of the peace of the district, and if no jus-
tice in such district, then to the most convenient
justice in any other district, setting forth the
amount claimed. Whereupon such justice shall issue
a summons as in other suits, returnable five days
from the date thereof, requiring the owner or
claimant of such stock to appear at a time and a
place therein named, and which shall be served as
other summons, at least three days before the
time of hearing, when said justice shall proceed
to hear evidence and give judgment against such
owner or claimant for such damages as shall ap-
pear reasonable and just, including the expenses
of care and feeding of such stock, and all legal
costs, which shall be enforced by execution, levy
and sale, as other judgments of such justice:
Provided, nevertheless, that a special lien upon
the trespassing animal or animals for the pay-
ment of such judgment shall attach from the time
of the committing of such trespass, superior to
all liens or previous claims, except public dues,
and superior also to all exemptions under the
homestead and exemption laws; but the defend-
ant in such case against whom a judgment for
damages has been rendered may appeal to a jury,
as other appeals are allowed in justices' courts:
And provided further, that in case of any litiga-
tion, as contemplated by this section, it shall be
lawful for the owner of such animals to redeem
or replevy the same by giving to the complaining
party a bond, with good and sufficient security,
conditioned to pay all damages and costs which
may be finally recovered against him in such suit,
said bond to be approved by the justice of the
peace issuing the summons. And if for any rea-
son said animals, while going at large, can not be
captured or impounded, the person whose prem-
ises or whose property of any kind is damaged
by them may proceed before a justice of the
peace against the owner or claimant of said ani-
mals, for the purpose of collecting his damages,
in the same manner and to the same extent as
is herein provided in the case of disagreement as
to damages committed by animals that have been
impounded. Acts 1872, p. 34r 1888, pp. 36, 37;
1900, p. 45; 1901, p. 33.
Cross References. — See 1 Cum. Dig. 461, 464; 7 Cum. Dig.
960.
As to disposition of estrays, see § 2002. As to rank of
liens for taxes, see § 3333. As to commencement of suits
before justices of the peace, see § 4715. As to property ex-
empt from sale, see § 3416. As to penalty for illegally im-
pounding an animal, see P. C, § 584.
Compared with § 2780.— This section and §§ 2031, 2032,
2033 and 2035 dealing with stock laws are not in pari ma-
teria with §§ 2780 and 2781 and do not modify or alter the
rule of diligence to be observed in the running of trains.
Central Railroad v. Hamilton, 71 Ga. 461.
Justice a Special Tribunal. — In the statutory provisions
for a hearing and judgment by a justice of the peace, where
damages are claimed on account of trespass committed by
certain kinds of animals while going at large it was the
intention of the legislature that persons holding that office
should in such cases act as a special tribunal distinct from
a justice's court and with jurisdiction outside of that of a
justice of the neaee. James v. Thompson, 148 Ga. 201, 96
S. E. 216.
Liability of Agent. — If the agent of the owner of land
takes up stock trespassing on his principal's property, and
if while impounding they are in the possession and under
the control of the principal, and are damaged by the fail-
ure of the principal to give them the proper care and at-
tention, the agent is not responsible for the injur}- thus
caused. Kimbrough v. Boswell, 119 Ga. 201. 45 S. E. 977.
Possessory Warranto — Where one of the animals desig-
nated in § 2032 has been impounded, as authorized by §
2033, and has subsea.uently been disposed of by the
[461]
§ 2035
ELECTION FOR NO FENCES
§ 2036
taker-up as provided by law in cases of estrays a possessory
warrant to recover the animal will not lie in favor of its
owner against the taker-up; but the owner is relegated to
the provisions of this section for the recovery of his prop-
erty so impounded and the determination of the relative
rights arising between him and the taker-up, and the ad-
justment and settlement of any damages claimed by either
in connection with the impounding. Smith v. Whelchel,
11 Ga. App. 45, 74 S. E. 573.
Possessory warrant will lie against one who in a stock-
law county impounds trespassing live stock and fails within
due time to give the notice as required in this section.
Goodwill v. Peeples, 2 Ga. App. 673, 58 S. E. 1115.
Summons. — The summons issued and served should show
the jurisdictional facts that the animals have been im-
pounded by the plaintiff and that there is a disagreement
between the parties as to the amount of the damages
claimed, and the amount claimed for feeding and caring
for the animals impounded. A summons requiring the de-
fendant to appear at a justice's court therein mentioned,
to answer a complaint of the plaintiff, consisting of an ac-
count merely stating so much damages and so much for
feeding and care of cattle, without more, is not sufficient.
Delk v. Pickens, 84 Ga. 76, 10 S. E. 596.
§ 2035. (§ 1776.) Improperly impounding or
breaking pound, penalty. — If any person shall,
under the pretext of the provisions of this law,
unnecessarily or out of mere vexation take up
and impound any such animal or animals, or,
after having taken up and impounded any such
animal or animals, shall fail to give the notice re-
quired by the preceding section, or to estray
them in case the owner is not known or ascer-
tained within the time prescribed by said sec-
tion, or shall fail to give proper care and atten-
tion as herein provided, or in any manner shall
injure or maltreat any such animal or animals,
or if any such person shall break a pound and
release any animal which has been legally im-
pounded or estrayed, without having first paid all
damages that may have been incurred, such per-
son so offending shall be deemed guilty of a
misdemeanor, and in addition shall pay the ow-
ner of such animal or animals, or pounds, double
the amount of damages actually sustained by a
violation of the provisions of this Chapter. Acts
1872, p. 34; 1882-3, p. 51.
See notes to § 2034.
As to election for no fences, see §§ 2036, 2037.
ARTICLE 6.
Election for No Fences.
§ 2036. (§ 1777.) Election, how ordered.—
The provisions of sections 2031, 2032, 2033, 2034,
and 2035 shall become operative in any county
in this State, upon the following terms and con-
ditions: Whenever so many as fifty freeholders
in any county in this State shall petition the
ordinary of any county for the benefit of the
provisions of said sections, said ordinary shall at
once make known throughout said county, by
advertisement in the public gazette, if there be
one published in said county, and by notices at
all election precincts and public places therein,
that such petition has been filed in his office,
such notices to be published twenty days. If a
counter-petition of freeholders is filed amounting
to fifty persons, then the ordinary shall proceed
no further. If such petition of freeholders is not
met by such counter-petition, or, if met by such
counter-petition, is supported by a petition of
so many as twenty-five additional freeholders,
then the ordinary aforesaid shall at once pro-
ceed to have an election held in such county on
first Wednesday in July following, in which the
question shall be submitted to the lawful voters
of said county of "fence" or "no fence," said
election to be held at the court-ground in each
militia district and under the same rules and
regulations as provided for members of the Gen-
eral Assembly, and after thirty days notice at
the most public places in said county: Provided,
that no person shall be allowed to vote at said
election except in the militia district in which
he resides: Provided, that such election shall
not be held oftener than one time in every year.
The returns of said election shall be made to the
ordinary of said county, who, after examining
the same and deciding upon all questions which
may arise out of said election, shall proclaim the
result by notice as aforesaid. If the lawful ma-
jority in said election is for "no fence," then said
provisions shall take effect in such county with-
in six months thereafter. Acts 1880-1, pp. 60,
61; 1882-3, p. 49; 1889, p. 60.
As to election to prohibit hogs from running at large,
see § 2053. As to streams as fences, see § 2050.
Voting in Militia Districts. — The provision requiring vot-
ers to vote in their militia districts, does not conflict with
the constitutional franchise of the citizen to vote, if he has
resided twelve months in the state and six months in the
county. Dyson v. Pope, 71 Ga. 205.
The object of the provision requiring the election to be
held at the court ground of each militia district is to pre-
vent repeating and other illegal voting, and hence no per-
son is allowed to vote at the election except in the militia
district in which he resides. Dyson v. Pope, 71 Ga. 205.
Day Held. — An election held on any other day than the
first Wednesday in July is void, and no right to impound
stock thereunder could arise, although such election was
declared to be in favor of "no fence." Reeves v. Gay, 92
Ga. 309, 18 S. E- 61.
Contesting Election. — Under §§ 1449-1455 of the Code of
1882, there was no provision made for a counter-petition,
or for any contest or hearing before the ordinary. Mead-
ows v. Taylor, 82 Ga. 738, 10 S. E- 204. A counter-peti-
tion is not allowed, but the statute does not allow a method
for contesting the result. Harris v. Perryman, 103 Ga.
816, 30 S. E. 663.
There is no provision of law for attacking the validity
of the election either directly or collaterally until some
actual case arises which puts its validity in issue. Nelms
v. Pinson, 92 Ga. 441, 17 S. E\ 350; Hillsman v. Harris,
84 Ga. 432, 11 S. E. 400.
At an election to determine the question of "fence" or
"no fence," all qualified voters therein are entitled to
vote, yet the power to cause such election to be held, or
to prevent it, is exclusively in the freeholders; and on a
contest of such election, they alone are proper parties.
One not a freeholder has no power to contest such elec-
tion. Tharpe v. Hardison, 69 Ga. 280.
Decision of Ordinary. — The ordinary was without ju-
risdiction to pass any judgment to the effect that the
stock-law attacked had become effective. Johnson v.
Tanner, 126 Ga. 718, 56 S. E. 80; Beaver v. Lowe, 145
Ga. 52, 88 S. E. 573.
Review by Court. — An election upon the stock-law, and
the supervision thereof by the ordinary, being the exer-
cise of political and police powers incident to legislative
and executive government, and not, their general political
and police effect at all judicial, the courts have no ju-
risdiction to interfere except as conferred by the act it-
self. Skrine v. Jackson, 73 Ga. 377; Scoville v. Calhoun,
76 Ga. 263; Ogburn v. Elmore, 121 Ga. 72, 74, 48 S. E-
702; Heath v. Bellamy, 15 Ga. App. 89, 82 S. E- 665.
Questions relating to examining and counting the re-
turns in an election to settle the question of "fence or no
fence," must be made before the ordinary proclaims the
result. Dyson v. Pope, 71 Ga. 205.
Boundary lines are declared a lawful fence in every
county and district, if the voters of such districts or coun-
ties vote for no fence at an election held for that pur-
pose. Parker v. Smiley, 153 Ga. 786, 113 S. E. 150.
Time Stock-Law Becomes Effective. — This section does not
make the building of a fence around the district a con-
dition of the stock-law going into effect, the legislature
plainly declaring the stock -law shall go into effect within
six months after the election. Dover v. State, 80 Ga. 781,
6 S. E. 589. ■ .
[462]
$ 2037
ELECTION FOR NO FENCES
§ 2042(1)
§ 2037. (§ 1778.) Election in militia districts.—
The provisions of sections 2031, 2032, 2033, 2034,
and 2035 shall become operative in any militia
district ot this State, upon the following terms
and conditions: Whenever so many as fifteen
freeholders, or a majority of freeholders, in any
militia district of this State shall petition the or-
dinary of any county in which said district is lo-
cated, for the benefit of the provisions of said sec-
tions, said ordinary shall give notice of said petition
by advertising the same in the public gazette if there
be one published in said county, and by public no-
tices at all election precincts and public places in
said district, which said notices shall be published
for twenty days; and said ordinary shall at once
proceed to have an election held in said militia
district at as early a day as practicable, to be
designated by him, after said notices have been
given, in which the question shall be submitted
to the lawful voters of said district in the follow-
ing form, to wit: "For fence" or "Stock law;"
said election to be held at the places and under
the same rules and regulations as are provided
for members of the General Assembly, and af-
ter fifteen days notice at the most public places
in said district; at which election all persons
who are qualified to vote for members of the
General Assembly, and who have been bona fide
residents of said district for ninety days im-
mediately preceding said election, shall be quali-
fied to vote. The returns of said elections shall
be made to the ordinary of said county, who,
after examining the same and deciding upon all
questions which may arise out of said election,
shall proclaim the result by notice as aforesaid.
If the lawful majority in said elections is for
stock law, then the provisions of said sections
shall take effect in such militia district within
six months thereafter: Provided, that said last
election shall not be held oftener than one time
in every year. And provided further, that with-
in six months after such election, a lawful fence
with proper gates be erected around parts of
such district as touch non-stock law or fence-
law districts or counties as is provided for in
section 2047, and if within such time such fences
and gates shall not be so erected, then the pro-
visions of said section shall not go into effect.
Acts 1899, p. 29.
Cross References. — See note to § 2036.
As to fences around militia districts, see § 2043. As to
gates erected across highways, see § 2047.
Constitutionality. — The last sentence in this section is
constitutional and not unreasonable, impossible of per-
formance, and contrary to public policy. Puckett v. Young,
112 Ga. 578, 37 S. E. 880.
Number of Freeholders. — Where it is alleged that the pe-
tition to the ordinary for an election on the question of
adoption of the stock-law had the names of only thirteen
freeholders signed thereto, instead of fifteen (a majority),
but the record does not show that fifteen freeholders did
not sign the petition, this court can not say whether or
not the signers of such petition comprised less than a
majority of the freeholders. Mize v. Speight, 82 Ga. 397,
9 S. E. 1080.
Notice for Twenty Days. — The failure to advertise the
notice for twenty days did not vitiate the election. It was
a mere irregularity, and did not render the result of the
election void. Mize v. Speight, 82 Ga. 397, 400, 9 S. E-
1080.
Territory Added. — When the lines of a militia district
are legally changed the territory thus added to a district
becomes subject to the systems as to fences or stock-law
which prevails in that district. Hacknev v. Leake, 91
Ga. 141, 16 S. E. 966.
Where, by a vote of the militia district, the stock law
was adopted, and subsequently, but prior to the passage
of the Act of November 26, 1890, the district line was le-
gally changed so as to add territory formerly belonging
to an adjoining district in which the stock law had not
been adopted, this added territory became subject to the
operation of the stock law by virtue of the act aforesaid.
Drummond v. Lowery, 88 Ga. 716, 16 S. E. 28.
Certiorari. — The ordinary's action upon the petition is
ministerial, not judicial, and certiorari will not lie ior
the correction of any error or mistake in his conduct.
Meadows v. Taylor, 82 Ga. 738, 10 S. E. 204.
§ 2038. (§ 1779.) Deposit of cost of notices,
etc. — None of the ordinaries of this State shall
publish and post notices of the filing of a peti-
tion of freeholders for an election upon the ques-
tion of fence or no fence, as provided for in this
Code, until there shall be deposited with such
ordinary an amount sufficient to pay the legal
cost of advertisement and the actual cost of
posting notices. Acts 1882-3, p. 129.
§ 2039. (§ 1780.) Expense of publishing, etc.,
notices after election. — The cost of publishing
and posting the notices required, after the elec-
tion has been had, shall be paid out of the county
treasury of such county as other county ex-
penses are now paid. Acts 1882-3, p. 129.
§ 2040. Election after nine years. — Any militia
district in this State, in which the stock law was
obtained by a district election, and in which said
stock law has been of force for nine years or
more, may vote "for stock law" or "for fence;"
provided a majority of the freeholders of such
district shall file a petition with the ordinary
with sufficient money to pay the cost of posting
the notices of said election. Acts 1905, p. 132.
See note to § 2036.
§ 2041. How ordered and held. — When such
petition shall be so filed, the ordinary shall order
an election to be held in said district within
thirty days, in which election the voters may
vote "for stock law" or "for fense;" the ordinary
shall give twenty days notice of the election
by posting notices thereof in three or more of
the most public places in the district. This elec-
tion shall be held under the same rules and regu-
lations governing elections for members of the
General Assembly.
As to rules of elections for members of the General As-
sembly, see §§ 76 et seq.
§ 2042. Result, how declared. — The returns of
the election shall be made to the ordinary, who
shall declare the result. If a majority of the
votes cast in the election should be "for fence,"
the ordinary shall so declare, and the district
shall return to and be under the same laws now
governing the fence districts of said county,
within six months from the day of the election.
Cross References. — See 6 Enc. Dig. 184, 185.
As to contests over elections, see note to § 2036. As to
attacking its validity, see note to § 2036.
Prohibition. — The writ of prohibition will not lie to pre-
vent the ordinary from determining and declaring the re-
sult of an election held on the question of fence or no fence.
Seymour v. Almond, 75 Ga. 112.
§ 2042(1). How often elections to be held in
certain counties. — Whenever an election has
been, or may hereafter be held in any county in
this State for two years in succession, upon a
submission to the qualified voters thereof of the
question of "Fence" or "No Fence," and shall
have resulted successively against "No Fence"
[463]
§ 2043
MISCELLANEOUS PROVISIONS
§ 2050
no election shall be held in that county for pur-
pose of determining the same question for a
period of three years from the date of the last
election so held: Provided, that the provisions
of this Act shall apply only to those counties
having a population of not less than 33,000 and
not more than 33,044 according to the national
census of 1920. Acts 1925, p. 190.
ARTICLE 7.
Miscellaneous Provisions.
§ 2043. (§ 1781.) Militia districts, fences
around. — Whenever any militia district shall
adopt the provisions of the stock law, it shall be
the duty of the ordinary (or such other tribunal
as may have jurisdiction over county matters),
as soon as practicable after said adoption, to
have good and substantial fences erected around
the lines of said district in order to prevent the
incursion of stock from other counties or dis-
tricts, and for this purpose he is empowered to
enter upon the land of any person of said district
or county, and have fences constructed across
any public or private road: Provided, that proper
gates are established in such public or private
roads: And provided further, that in no event
shall the provisions of the stock law go into ef-
fect, as the result of a militia district election
hereafter held, until and unless within six
months after such election (if in favor of ''stock
law") such fence, with gates, as above provided,
has been erected around portions of such dis-
trict as touch non-stock or fence-law districts
or counties. Acts 1880-1, p. 80; 1899, p. 29.
As to election in militia districts, see § 2037.
Constitutionality. — The last sentence in this section is
constitutional and not unreasonable, impossible of per-
formance, and contrary to public policy. Puckett v. Young,
112 Ga. 578, 37 S. E. 880.
Six Months a Condition Precedent. — When a militia dis-
trict seeks to adopt the stock -law, it is a condition prece-
dent to the law going into effect that within six months
after the election declaring for "no fence," the ordinary
shall have good and substantial fences erected around the
lines of such portions of such district as touch fence law
districts or counties. Johnson v. Tanner, 126 Ga. 718, 56
S. E. 80.
Before the amendment to § 1778 of Code 1895, by Acts of
1899, p. 29, adding the last sentence in the section above,
it was not a condition precedent to the operation of the
law that fences be erected around the district. Dover v.
State, 80 Ga. 781, 6 S. E- 589; Holleman v. Kingery, 81 Ga.
624, 8 S. E. 535. These cases are thus to be distinguished
from that of Johnson v. Tanner, supra.
§ 2044. Stock-law fences legalized. — In any
militia district of this State where a stock-law
election has been held heretofore or thereafter
held, and determined in favor of stock-law, and
an honest effort has been made by the citizens
of the district to build good fences and gates on
or about the district line, and said fences and
gates have been erected and have been recog-
nized as the boundary fence between the said
district and the adjoining district by the county
commissioners or the ordinary, either by direc-
tion or acquiescence, the fence shall be consid-
ered a legal fence, and the district thus having
voted shall be entitled to all the rights and pro-
tection of the stock-law. Acts 1909, p. 158; Acts
1916, p. 41.
Editor's Note. — The words "has been held heretofore or
thereafter held" were substituted for the words "has been
held heretofore," contained in the Code 1910, by Acts 1916,
p. 41.
Constitutionality of Amendment. — The Act of 1916, p. 41,
is not void on the ground that it has no effective enacting
clause. Fowler v. Stone, 149 Ga. 125, 99 S. E- 291.
Before the amendment of Acts 1916, p. 41 to Code 1910,
it was held that this section only applied to fences erected
prior to its passage. Beaver v. Eowe, 145 Ga. 52, 88 S. E-
573.
§ 2045. (§ 1782.) Fences protected.— The laws
of force with regard to the legal fences shall ap-
ply to all fences erected in pursuance of the fore-
going section, and all persons distributing or in-
juring the same shall be punished as now pre-
scribed by law. Acts 1880-1, p. 79.
As to penalty for injuring fences at crossings, see P.
C, § 767.
§ 2046. (§ 1783.) Stock-drivers shall avoid tres-
pass.— It shall be the duty of any person or per-
sons driving stock of any kind through the pub-
lic roads of any district in which the "stock law"
is of force, so to herd and drive the same that
they shall not be allowed to enter upon or work
injury to the lands or crops of the citizens there-
of, and for violation of this section shall be dealt
with as other trespassers. Acts 1880-1, p. 79.
§ 2047. (§ 1784.) Gates to be erected.— It shall
be the duty of the ordinary (or such tribunal as
aforesaid), in any county where any district of
the same has adopted the provisions of the stock
law aforesaid, to have erected substantial and
convenient gates in fences at the crossings of all
public highways and neighborhood roads, and
whenever any person residing in said district
shall desire a crossing on his own lands, he shall
be permitted to erect and keep up such gates at
his own expense. Any gate erected across a
public road under the provisions of this Chapter
shall be so constructed that the same can be
opened and shut without dismounting from any
horse or vehicle that may be desired to pass
through the same. Acts 1880-1, p. 79.
As to penalty for leaving open' or injuring gates, see P.
C, § 767. As to provision for fences around militia dis-
trict, see § 2043. As to erection of gates, see § 2028.
§ 2048. (§ 1785.) Pasturage furnished, when. —
Each owner or proprietor of lands in any militia
district adopting the provisions of this Chapter,
who shall rent his lands or establish a system of
tenantry thereon, shall furnish pasturage for at
least one cow and calf for the family of each ten-
ant: Provided, that said tenant shall do his pro-
portionate part of fencing. Acts 1880-1, p. 79.
§ 2049. (§ 1786.) Rights of voters. — Nothing
herein contained shall prevent any district which
has adopted this law from voting at any county
election on the stock-law.
As to election on the stock -law, see § 2036.
§ 2050. (§ 1787.) Where streams are fences. —
The provisions of sections 2031 to 2036, inclu-
sive, shall become operative in any part of any
county in this State that is divided by any water-
course that is or shall be deemed and considered
a fence, upon the following terms and condi-
tions: Whenever so many as fifty freeholders
residing on that side of such watercourse in any
county in this State that is divided by any water-
course, that is or shall be deemed and considered
[ 464
§ 2051
BOARD OF VETERINARY EXAMINERS
§ 2059
a fence, shall petition the ordinary of said county
for the benefit of said stock-law in that portion
of the county, said ordinary shall at once make
known throughout said porton of said county,
by advertisement in the public gazette if there
be one published in said county, and by posting
notices at all election precincts and public
places therein, that such petition has been filed
in his office, such notice to be published at least
twenty days, and all subsequent proceedings
shall be the same as now provided when whole
counties apply for the provisions of said sec-
tions. Acts 1880-1, p. 177.
As to watercourses as fences, see § 2030.
§ 2051. (§ 1788.) Part of county excepted. —
The result of such election shall have no force
or effect in that part of the county lying on the
opposite side of such watercourse.
ages, or he might bring an action for the trespass. This
right of action is not altered by the statutes of this state,
except that, in counties where the stock law does not ob-
tain, the damage, in order to give a right of action, must
be done on land enclosed by a lawful fence. Bonner v.
DeLoach, 78 Ga. 50, 2 S. E. 546.
Where the stock law obtains, provision is made for tak-
ing up and impounding animals running at large and hold-
ing them until damages and costs of keeping and mainte-
nance are paid, and a summary remedy is given for dam-
ages by proceeding before a justice of the peace; but this
remedy is cumulative and not exclusive, and it docs not
prevent a resort by the plaintiff to an action to test his
rights in the ordinary courts of justice. Bonner v. De-
Loach, 78 Ga. 50, 2 S. E- 546.
§ 2055. Care of impounded hogs. — In cases of
impounding such hog, the person so impounding
shall conform to all the requirements as to care,
feed, and attention as contained in section 203 :.
§ 2056. Provisions made applicable. — The pro-
visions of section 2035, in so far as the same may
be applicable, shall be and are hereby made ap-
plicable to the subject-matter of this Article.
ARTICLE 8.
Hogs Running at Large.
§ 2052. Hogs running at large, prohibited.—
It shall not be lawful for any person to permit
any hog to run at large beyond the limits of his
own land, or of the land of which he is in con-
trol, in those counties in this State which have
not wholly or in part adopted the "stock-law" as
contained in Article 5, whenever the provisions
of the next succeeding section have been com-
plied with. Acts 1903, p. 97.
As to impounding animals in general, see §§ 2032, 2033.
§ 2053. Election to prohibit. — Whenever as
many as one hundred and fifty freeholders of
any county not operating under the "stock law"
wholly or in part shall petition the ordinary of
such county for the benefit of the preceding sec-
tion, said ordinary shall order an election as in
cases of petition under section 2036, except that
there shall be no counter-petition entertained or
accepted by said ordinary against such election;
and said election shall be conducted in conform-
ity with the provisions of said section 2036, and
the qualifications of voters shall be the same as
therein provided; and those who favor the adop-
tion of this Article shall have written or printed
on their ballots the words "Against hogs at
large," and those who are opposed thereto shall
have written or printed on their ballots "For hogs
at large," and whenever such election shall result
in the adoption of this Article the ordinary shall
so announce, and the provisions of this Article
shall not take effect in such county until after
the lapse of six months from such election.
§ 2054. Hogs, when to be impounded. — If any
hog shall commit any trespass or damage or be
found at large on the premises of any other per-
son other than the owner thereof, it shall be law-
ful for such owner of such land to impound such
.hog until such owner of such hog shall make such
satisfaction for the damage committed by such hog,
including cost and expenses.
As to animals in general impounded, see § 2033.
At common law, if, by the negligent keeping of the owner
of hogs, they strayed upon the land of another and in-
jured his crops, it was a trespass for which the owner was
answerable in damages; and the party injured might either
impound the cattle until the owner should satisfy his dam-
ARTICLE 9.
Board of Veterinary Examiners.
§ 2057. Board of veterinary examiners. — A
State board of veterinary examiners is hereby
created, to be appointed by the Governor, and en-
dorsed by the Georgia State Veterinary Associa-
tion; whose terms of office shall be as follows:
One for one year, one for two years, one for
three years, one for four years, and one for five
years, as may be decided by ballot among them-
selves; and at the expiration of the term of any
member, such vacancy shall be filled annually by
a similar appointment for five years; and should
a vacancy occur from any other cause, . the Gov-
ernor shall fill the same for the unexpired term-
by appointment. Acts 1908, p. 88.
§ 2058. Meeting, election of officers, and rules.
— This board shall hold its regular annual meet-
ing on the 22d day of December of each year at
the State capitol in Atlanta, for the purpose of
examining applicants for license to practice vet-
erinary medicine and surgery in the State of
Georgia, and shall continue in session until all
business has been transacted: Provided, if the
date mentioned falls on Saturday or Sunday, the
board will meet the following Monday. Upon
being commissioned, the members of this board
shall meet at the State capitol and organize by
electing from among themselves a president,
vice-president, and secretary, and shall adopt
such rules and regulations for their own govern-
ment as conditions may require. Special meet-
ings, for the transaction of special or urgent
business, may also be held at other times and
places upon the call of the president and secre-
tary.
§ 2059. License, and examination of applicant. —
Every person who desires to practice veterinary
medicine or surgery in this State must obtain a
license to do so from the State board of veterin-
ary examiners, and must apply for same in writ-
ing to said board, and must be examined by said
board as to his knowledge of the following
branches of medicine: Comparative anatomy,
physiology of domestic animals, veterinary path-
[465]-
§ 2060
DEPARTMENT OF AGRICULTURE
§ 2068
ology and therapeutics, materia medica and
chemistry, surgical technique, veterinary ob-
stetrics, and veterinary hygiene; and if upon ex-
amination the applicant be found to possess a
sufficient knowledge of such branches, and be of
good moral character, the board shall at once
issue to him a license to practice veterinary medi-
cine and surgery: Provided, however, that any ap-
plicant holding a diploma from a recognized
veterinary college, giving not less than a three-
years course of instruction in the above-named
subject, shall be licensed by the board upon
presentation of proof of such graduation.
§ 2060. Fee, and re-examination. — All appli-
cations, when filed with the board, must be ac-
companied by an examination fee of ten dollars;
the funds created by such payments to be used
in defraying the expenses of the board. Any
applicant failing to satisfy the board as to his
qualification may, upon application, be re-exam-
ined, in not less than six months, upon payment
of an additional examination fee.
§ 2061. When other than graduate may prac-
tice.— Any person not a graduate of a college
legally authorized to confer a degree in veteri-
nary medicine, who was engaged in the practice
of veterinary medicine in the State of Georgia
for three consecutive years prior to August
14th, 1908, this fact to be proven to the board
by presenting with the application the original
or certified duplicate of the professional tax re-
ceipt as originally issued for the years 1905,
1906, 1907, showing that the applicant was at
that time a bona fide veterinary practitioner,
shall be granted by said board a license to con-
tinue such practice upon the payment of the
regular examination fee. Acts 1918, p. 117.
§ 2062. Who regarded as a practitioner. — Any
person shall be regarded as practicing veterinary
medicine or surgery, within the meaning of this
Article, who, shall publicly profess to be a vet-
eninarian, veterinary surgeon, or veterinary den-
tist, or who appends to his name any initials or
titles implying qualifications to practice the
same. But nothing in this Article shall be so
construed as to prevent any one who does not
claim to be a veterinarian, veterinary surgeon, or
veterinary dentist from receiving voluntary
gratis who may treat, operate upon, or prescribe
. for any physical ailment in or any physical in-
jury to or any deformity of any domestic animal.
§ 2063. Revenue, how obtained; State not li-
able.— It shall not be lawful for the board oi
veterinary examiners or any member thereof, in
any manner whatever or for any purpose, to
charge or obligate the State of Georgia for the
payment of any money or moneys in connection
with this Article, and said board shall look alone
to the revenue derived from the operation of this
Article, for the compensation designated in sec-
tion 2060.
§ 2064. Violation, a misdemeanor. — Any per-
son who shall violate, or aid in violating, any of
the provisions of this Article shall be deemed
guilty of a misdemeanor.
For same provision, see P. C, § 475.
FIFTEENTH TITLE.
Department of Agriculture.
CHAPTER 1.
Commissioner of Agriculture.
§ 2065. (§ 1789.) Agricultural department es-
tablished.— There is established a department of
agriculture for the State of Georgia. Acts 1874,
p. 6.
§ 2066. (§ 1790.) Commissioner, how elected.
— Said department shall be under the control
and management of one officer, who shall be
known as the commissioner of agriculture, who
shall be a practical farmer, elected by persons
qualified to vote for members of the General As-
sembly, at the same time, in the same manner,
and under the same rules and regulations as the
Governor and State-house officers; he shall hold
his office for two years and until his successor
is elected and qualified, unless removed in the
manner now prescribed by law for the removal
of officers of the State government. In case of
a vacancy in the office of commissioner of agri-
culture from any cause, such vacancy shall be
filled by appointment by the Governor, which
appointee shall hold the office until his succes-
sor is elected and qualified. Said commissioner
shall be allowed one clerk, to be chosen by him-
self, to assist in the discharge of the clerical du-
ties of his office. The office of said commis-
sioner shall be held at the capitol of the State,
and the office and furniture necessary for the
transaction of the duties of the officer shall be
furnished him by the Executive of this State.
Acts 1874, pp. 5, 6; 1889, p. 63.
As to appointment by governor to fill vacancy, see § 155.
§ 2067. (§ 1791.) Salaries of commissioner and
clerk. — The salary of the commissioner shall be
five thousand dollars per aiinum, and the salary
of his clerk shall be twenty-five hundred dollars
per annum. Acts 1905, p. 73; 1906, p. 110; 1919,
pp. 75, 94.
Editor's Note. — By the act of 1919, the salaries were
raised from three thousand and eighteen hundred to five
thousand and twenty-five hundred respectively.
§ 2068. (§ 1792.) Commissioner's duties.
1. He shall prepare, under his own direction, a
handbook describing the geological formation of
the various counties of this State, with informa-
tion as to the general adaptation of the soil of said
counties for the various products of the temperate
zone, and for the purpose of giving a more general
and careful estimate of the capacity and character
of the soil of the counties of this State; the above
subjects, and others of interest to those who till
the soil of this State, shall be given in circular or
pamphlet form, to the ordinaries and to the agri-
cultural associations of the various counties in
this State, for distribution at such times as the
commissioner may be prepared to do so.
For duties of commissioner of immigration with respect
to agriculture, see §§ 1984, 1986.
2. Said commissioner shall provide for the pro-
per and careful distribution of any seeds that the
government of the United States may desire to
introduce into the State of Georgia, and he shall
[ 466 ]
2068
COMMISSIONER OF AGRICULTURE
§ 2071
make arrangements for the importation of seeds
that he may deem of value to this State, and for
the proper, careful, and judicious distribution of
the same; also, for the exchange of seeds with
foreign countries or adjoining States, for seed
from this State; and their distribution in a proper
manner shall be entirely under his supervision and
control.
3. Said commissioner shall have under his es-
pecial charge the study of the various insects that
are injurious to the crops, plants, and fruits of this
State, their habits and propagation; and he shall,
at various times, as he may deem proper, issue
circulars, for distribution as aforesaid in this State,
as to the proper mode for their destruction, and
any information upon said subject that he may
deem of interest to the planters, farmers, and
horticulturists of this State.
As to commissioner being member of state board of en-
tomology, see § 2120.
4. Said commissioner shall examine into any
question that may be of interest to the horticul-
turists and fruit-growers of this State, and in all
endeavors that he may deem proper toward en-
couraging these indus'tries.
5. Said commissioner shall have under his es-
pecial charge the diseases of the grain, fruits, and
other crops of this State, and he shall, at various
times, report upon any remedy for said diseases or
any useful information upon said subject, and he
shall employ, in a manner that he may deem fit, a
chemist to assist him in his researches, and a geol-
ogist to assist him in preparing a geological sur-
vey of the State, and other business that he may
deem of importance to advance the purpose for
which this department is created.
As to commissioner being member of state board of en-
tomology, see § 2120. As to appointment of assistant state
geologists, see § 1966.
6. Said commissioner shall have under his es-
pecial charge the analysis of fertilizers. A fair
sample of all fertilizers sold in this State shall be
first submitted to said commissioner, and the
same shall be thoroughly tested by him; and if
any brand of fertilizers so tested by said commis-
sioner is pronounced of no practical value, the
sale of the same shall be prohibited in this State;
and any person violating the provisions of this
Article, or selling any fertilizer in this State with-
out first submitting a fair sample of the same to
said commissioner, under rules to be prescribed
by him, shall be guilty of a misdemeanor.
For provisions on analysis of fertilizers, see §§ 1771-
1799.
7. Said commissioner shall report, as is here-
inbefore set forth upon any matter of interest in
connection with the dairy that he may deem of in-
terest to the people of this State.
8. It shall be the especial duty of said commis-
sioner to investigate and report, as is hereinbe-
fore set forth, upon the culture of wool, the utility
and profits of sheep-raising, and all information
upon this subject that he may deem of interest to
the people of this State.
9. Said commissioner shall investigate the sub-
ject of irrigation, and what portion of this State
can be most benefited thereby, and all informa-
tion upon this subject that he may deem import-
ant to the people of this State.
10. Said commissioner shall give attention to
the subject of fencing, and shall report at such
times as he may deem proper upon said subject,
as is hereinbefore set forth.
11. The commissioner of agriculture shall an-
nually collect, and present in his report, statistics,
accurate and full as possible, relating to agricul-
ture in all of its branches as practiced in this
State. The statistics thus collected shall show,
by counties, the acreage, the total yield, and the
average yield per acre of the crops grown in this
State.
12. Said commissioner may report, in the man-
ner as is hereinbefore set forth, upon any matter
or subject that he may deem of interest to the
agriculture of this State. Acts 1874, p. 6; Acts
1893, p. 136.
§ 2069. Veterinary surgeon, when employed. —
The commissioner of agriculture shall, upon ap-
plication made to him by the ordinary of any
county, or upon the application of the county
commissioners of any county, reciting that an in-
fectious or contagious disease or diseases has ap-
peared affecting the life of the live stock in said
county, and that it is apprehended the disease is
likely to spread unless checked, and the disease
is unknown or beyond the control of the owners
of stock to treat, certifying the application over
his or their seal, and reciting in the opinion of
such ordinary or county commissioners, as the
case may be, that the conditions call for prompt
investigation and treatment by a competent per-
son or persons, it shall be the duty of said com-
missioner of agriculture to employ a competent
veterinary surgeon or expert to investigate the
causes of said disease, to prevent the spread
thereof, and to treat the same; and the commis-
sioner is hereby authorized to pay such expert
the sum not exceeding five dollars per day and
traveling expenses while treating the same. Acts
1905, p. 121.
As to power to quarantine live stock, see § 2074. As to
power to enter premises where live stock is kept, see
§ 2078.
§ 2070. Expenses, how paid. — The commis-
missioner of agriculture, in order to meet the ex-
penses of the employment of said veterinary, is
authorized to retain from time to time as occasion
may require, the needful sum arising from the in-
spection of fertilizers, carefully noting the amount
so paid and to whom and when paid.
As to account of expenses of inspection, see § 1795. As
to expenses in general, see §§ 2084-2084 (3).
§ 2071. Quarantine for cattle. — The commis-
sioner of agriculture shall from time to time as-
certain in what sections of this State cattle are
free from diseases and splenetic fever; and when-
ever the cattle of amr section of this State are
found to be free from contagious and infectious
diseases and splenetic fever, he is authorized and
required to establish and maintain such quaran-
tine lines, and to make and enforce such rules and
regulations as may be necessary for the protec-
tion of such cattle. Acts 1899, p. 97.
As to penalty for violation, see P. C, § 582.
[467]
§ 2072
COMMISSIONER OF AGRICULTURE
§ 2081(1)
§ 2072. Co-operation with other officials.-— Said
commissioners shall co-operate with the officials
of other States, and with the secretary of agricul-
ture of the United States, in establishing such
quarantine lines, rules, and regulations as he shall
deem proper and best for the protection of the
cattle of this State free from any of the diseases
referred to in the foregoing section.
§ 2073. Quarantined stock, rules for governing
movements of. — The commissioner of agriculture
of Georgia shall have full power to make or enact
such rules and regulations as he may deem neces-
sary for governing the movement, transportation,
or disposition of live stock that may be quaran-
tined on account of being infected or affected with
a contagious or communicable disease, or the
cause of the same, the tendency of which is to
cause the death of such live stock. Acts 3 909,
p. 131.
§ 2074. Quarantine of live stock.-— The State
veterinarian or any duly authorized live-stock in-
spector, acting under the authority of the commis-
sioner of agriculture, is authorized and required
to quarantine any stall, lot, yard, pasture, field,
farm, town, city, militia district, county, or any
part or the whole of the State of Georgia, when
he shall determine the fact that live stock in such
place or places are affected or infected with a
contagious disease, or the cause of same. The
State veterinarian or live-stock inspector shall give
written or printed notice of the establishment of
said quarantine to the owners or keepers of said
live stock, and to the proper officers of railroad,
steamboat, or other transportation companies do-
ing business in or through the quarantined part
or parts of the State.
As to employment of state veterinary surgeon, ■ see §
2069. As to eligibility of federal live stock inspector to
state appointment, see § 2081.
§ 2075. Removal of stock to or from quarantine.
— No railroad company, or the owners or mas-
ters of any steam or other vessel or boat, shall
receive for transportation or shall transport live
stock from any quarantined part to any other part
of Georgia, except as hereinafter provided. No
person, company, or corporation shall deliver live
stock for transportation to any railroad company
or vessel or boat in a quarantined part of Georgia,
except as hereinafter provided. No person, com-
pany, or corporation shall drive, or cause to be
driven, or permit to go astray any livestock from
a quarantined part to a non-quarantined part of
Georgia, except as hereinafter provided.
§ 2076. Rules relative to removal. — Live stock
may be moved within the limits of a quarantined
area, or from a quarantined part of Georgia, only
under and in compliance with the rules and regu-
lations of the commissioner of agriculture. It
shall be unlawful to move, or allow to be re-
moved, any live stock within a quarantine area, or
from a quarantined to a non-quarantined part of
Georgia, in any other manner or method, or un-
der any conditions other than those prescribed by
the rules and regulations of the commissioner of
agriculture.
§ 2077. Disinfection. — Owners, renters, or par-
ties in possession of quarantined live stock or
quarantined places shall follow the directions in
the rules of the commissioners of agriculture in
disinfecting diseased or infected live stock, or in-
fected quarantined places, and in destroying the
cause or causes of a contagious or infectious dis-
ease.
Said disinfection of said live stock or quaran-
tined places shall be done by the owners or par-
ties in possession of such live stock and places
within a reasonable time after receiving a written
or printed notice from the commissioners of agri-
culture, as State veterinarian.
§ 2078. Inspection authorized. — The State vet-
erinarian, or any duly authorized live-stock in-
spector, is hereby authorized or empowered to en-
ter upon the premises or into any barn or other
building where live stock are temporarily or per-
manently kept in the State of Georgia, in the dis-
charge of the duties prescribed in this Chapter.
As to employment of state veterinary surgeon, see §
2069. As to eligibility of federal live stock inspector to
state appointment, see § 2081.
§ 2079. Cattle-ticks — suppression of diseases. —
The work of cattle-tick eradiction, or the suppres-
sion or eradication of any contagious or infectious
diseases of animals, shall be taken up under this
Chapter in any county or part of a county, or in
any part or the whole of the State of Georgia, when
the commissioner of agriculture may deem wise
and best and shall issue notice to the effect. The
county commissioners of any county in which the
State or Federal authorities take up the work of
tick eradication, or the suppression of any conta-
gious or infectious disease of live stock, may ap-
propriate for aiding in said work, such sum as
the county commissioners or board of roads and
revenues may deem adequate and necessary.
As to supervision of work, see § 2082 (9).
Constitutionality. — The provision of the Constitution of
Georgia inhibiting the delegation by the Legislature to
any county of the right to levy a tax for any purpose, ex
cept for those specified in article 7, § 6, par. 2, among
which purposes is that of pr©viding for sanitation, is not
offended by an act authorizing the appropriation of funds
for carrying on and aiding in the work of the eradication
of cattle ticks and the suppression of contagious and in-
fectious diseases of live stock. The expression, "provide
for necessary sanitation," is sufficiently comprehensive to
authorize the raising and the expenditure of money for the
purposes within the purview of this section. Townsend v.
Smith, 144 Ga. 792, 87 S. E. 1039.
§ 2080. Annual appropriation. — In order to en-
force and carry out the provisions of this Chapter,
the sum of five thousand dollars annually, or so
much thereof as may be necessary, is hereby ap-
propriated out of any funds in the treasury not
otherwise appropriated; and considering an
emergency exists, this appropriation shall become
available within thirty days after August 16th,
1909.
§ 2081. Federal live-stock inspector.— The com-
missioner of agriculture may appoint or com-
mission Federal veterinarians or live-stock inspec-
tors, who may be doing work in Georgia, as State
live-stock inspectors: Provided, they act without
pay from the State of Georgia.
For provisions with respect to state inspection, see §5
2074, 2078.
§ 2081(1). State veterinarian, appointment, etc.
— The office of State Veterinarian in the Georgia
[468 ]
§ 2081(2)
COMMISSIONER OF AGRICULTURE
§ 2082(5)
State Department of Agriculture is hereby
created, and the Commissioner of Agriculture is
hereby authorized to appoint a competent and
qualified Veterinarian (who must receive the en-
dorsement of the Georgia State Board of Veteri-
nary Examiners) to fill this position under the
title of "State Veterinarian," such officer to con-
tinue in office during good behavior and the
proper performance of his duties. Acts 1910, p. 125.
§ 2081(2). Duties.— The duties of the State Vet-
erinarian shall be to investigate and take proper
measures for the control and suppression of all con-
tagious and infectious diseases among the domesti-
cated animals within the State, under such rules and
regulations as may be promulgated by him and
approved by the Commissioner of Agriculture of
Georgia; he shall assume charge of the work of
cattle tick eradication in co-operation with the
Federal authorities, and shall devote his whole
time to the improvement of the live stock industry
of the State; and he shall make report upon his
work annually, the same to be published in the an-
nual report of the Commissioner of Agriculture.
Acts 1910, p. 125.
§ 2081(3). Salary.— The salary of said State
Veterinarian shall be twenty-five hundred dollars
per annum (($2,500.00), and he shall in addition
be reimbursed his actual traveling expenses in-
curred while traveling in the services of the State
in the regular discharge of his duties. Acts 1910,
p. 125.
§ 2082. Violation of quarantine or rules. — Any
person or persons, company, or corporation, who
shall violate any quarantine provision set forth
in this Chapter, or rules or regulations duly es-
tablished by the commissioner of agriculture of
Georgia, shall be guilty of a misdemeanor.
As to punishment, see P. C, § 582.
Sufficiency of Indictment. — The particular rule or rules
violated should be precisely designated and identified, and
should be set forth in the indictment in the exact language
thereof. Mathews v. State, 16 Ga. App. 312, 85 S. E. 284.
§ 2082(1). Plant for production of hog cholera
serum. — For the benefit of instruction to the Ag-
ricultural students at the State College of Agri-
culture at Athens, and for the protection of the
swine breeding industry of the State, the State
Agricultural College at Athens shall, in connection
with its Veterinary Department, establish a plant
for the production of the Bureau of Animal In-
dustry, or Dorset-Niles, Hog Cholera Serum; this
plant shall at all times be open for the inspection
and instruction of swine breeders in the State of
Georgia, the intention of this Act being not only
to produce the a'bove named preventative serum,
but also to instruct the public in its use and to
disseminate practical information for the preven-
tion of this disease among the breeders of swine.
Acts 1911, p. 41.
As to the penalty for the violation of this act. see § 578
(1), P. C.
§ 2082(2). Distribution of serum. — To prevent
the use of the serum in outbreaks other than true
hog cholera, which would be an economic loss to
the people, the distribution of the serum shall be
under the direction of the State Veterinarian,
whose duty it shall be to investigate reported out-
breaks and then direct the distribution of the
serum to such communities where the disease is
in progress. He shall keep a record of all serum so
distributed, and *to whom, and with what result,
such record to be published annually in pamphlet
form. Acts 1911, p. 41.
§ 2082(3). Training in use of serum and virus;
permits to administer; reports; supply of serum. —
It shall be the duty of the State Veterinarian up-
on request filed with him by the Commissioners of
Roads and Revenues of any county or counties
or by the ordinaries in counties which have no
Commissioners of Roads and Revenues to send
into such county or counties an expert who shall
instruct and train to proficiency in the proper and
efficient use of hog cholera serum and virus, not
less than four persons in such county or counties
so requesting; said four persons to be residents of
different sections of such county or counties. All
persons so trained and qualified shall be issued a
permit by the State Veterinarian to administer
hog cholera serum and virus; and it shall
ibe the duty of all persons holding such per-
mits and all licensed veterinarians to report daily,
on blanks furnished by the State Veterinarian, a
full report on number of hogs inoculated, Federal
License number and serial number of serum and
virus used, the condition of the herd and any other
information that may be necessary or helpful in
the suppression of hog cholera. All persons hold-
ing such permits shall keep on hand a reasonable
supply of serum and virus and shall supply same
to farmers and swine growers at cost. Failure to
make these reports and otherwise co-operate with
the State veterinarian shall revoke the permit. Acts
1919, pp. 32, 33.
§ 2082(4). Permits required; inspection and
regulations. — All serum companies and jobbers in
veterinary biological products, before doing busi-
ness in the State of Georgia, must secure a permit
from the State Veterinarian. The sale or free dis-
tribution of hog cholera virus, Mallein, tuberculin,
or anthrax vaccine, except through the office of
the State Veterinarian, is prohibited. The State
Veterinarian shall inspect or cause to be in-
spected all serum plants within the State, and shall
issued a license only to plants equipped and oper-
ated in conformity with Federal regulations gov-
erning the manufacture of veterinary biological
products. The State Veterinarian shall arrange
to supervise the test of all serum made in such
plants under regulations promulgated by him and
approved by the Commissioner of Agriculture,
uniform, as far as practicable, with regulations of
the United States Bureau of Animal Industry gov-
erning the manufacture of hog cholera serum. No
license shall be issued to any hog cholera serum
plant unless such plant be arranged, equipped, and
conducted as provided by regulations previously
referred to. Acts 1918, p. 34.
§ 2082(5). Appropriation. — That in order to
carry out the provisions of this Act the sum of
twenty thousand dollars ($20,000.00), or so much
thereof as may be necessary, is hereby annually
appropriated out of any funds in the Treasury not
otherwise appropriated. This sum. or so much
thereof as may be necessary, shall be available for
[ 469
§ 2082(6)
COMMISSIONER OF AGRICULTURE
§ 2082(11)
the investigation of reported outbreaks of hog
cholera, field investigation, sanitary control of the
infected districts and supervision of the distribu-
tion of serum under the direct supervision of the
State Veterinarian. Acts 1911, p. 41; 1912, p. 25;
1914, p. 21; 1918, p. 34; 1919, p. 32.
§ 2082(6). Serum furnished at actual cost. — The
serum produced under the provisions of this Act
shall be furnished to all citizens of this State at the
actual cost of production, and all moneys received
from the sale of such serum shall revert back to
the Veterinary Department at the State College
of Agriculture, the intention of this Act being to
make said hog cholera serum plant self sustaining
after this first appropriation of Three Thousand
($3000.00) Dollars. Acts 1911, pp. 41, 42.
§ 2082(7). Extermination of cattle tick; appro-
priation; supervision of state veterinarian; cattle
inspectors. — The sum of twenty-five thousand
($25,000.00) dollars, annually, be, and the same is
hereby appropriated out of any funds in the Treas-
ury, not otherwise appropriated for the purpose of
exterminating the cattle tick and developing the
live stock industry in the State of Georgia. This
work shall be under the supervision and control of
the State Veterinarian who is hereby authorized,
under the rules and regulations now in force
issued under date of November the 9th, 1910,
and approved by the commissioner of Agriculture,
to employ and discharge men qualified to act as
cattle inspectors, or supervising veterinarians,
and a clerk for keeping the records of this work.
Annually he shall file with the Commissioner
of Argiculture a detailed statement of the
expenditure and progress of this work, same
to be published in pamphlet form for free distribu-
tion among the people. All cattle inspectors and
supervising veterinarians employed under the
provisions of this Act be, and they are, hereby
vested with authority to discharge the duties of
live stock inspector as defined in Section 2078 (law
authorizing control of infectious and contagious
diseases of animals in the State of Georgia). Acts
1912, pp. 22, 24; 1914, p. 20.
§ 2082(8). Movement of tick-infested cattle
prohibited. — The movement of cattle infested with
the cattle fever tick (margaropus annulatus) into,
within or through the State of Georgia at any time
or for any purpose, except. as hereinafter provided,
shall be and the same is hereby prohibited. Acts
1918, p. 256.
§ 2082(9). Dipping-vats and chemicals; manda-
mus.— The ordinary, county commissioners or
officers in charge of the county affairs in each and
every county where tick eradication has not been
completed shall construct such number of dipping
vats as may be fixed by the State Veterinarian, or
his authority, and provide the proper chemicals
and other materials necessary to be used in the
systematic work of tick eradication in such coun-
ties, which shall begin on said date or such subse-
quent date as may be fixed by the State Veterin-
arian, with the approval of the Commissioner of
Agriculture. If the ordinary, county commis-
sioners or officials in charge of county affairs of
any county shall fail, refuse or neglect to comply
with the provisions of this Act on or before the
first day of April, 1919, the State Veterinarian shall
apply to any court of competent jurisdiction for
writ of mandamus, or shall institute other legal
proceedings as may be necessary and proper to
compel such official to comply with the provisions
of this Act. Acts 1918, p. 256.
Petition for Mandamus Sufficient. — The petition for
mandamus in this case contains distinct and sufficient al-
legations showing the failure upon the part of the com-
missioners of roads and revenues of the county in ques-
tion to comply with the requirements of this section; and
the judge erred in refusing, upon consideration of the peti-
tion presented to him, to issue a mandamus nisi. Bahnsen
v. Buie, 155 Ga. 13, 115 S. E. 909.
§ 2082(10). Inspectors, — The several counties
shall provide and pay the salaries of the necessary
number of local county inspectors, or agents, to
assist in this work, who shall be appointed by the
county officials in charge of county affairs, subject
to the approval of the State Veterinarian, and com-
missioned by him; the salaries of said inspectors,
shall be fixed by the county authorities, and shall
be sufficient to insure the employment of compe-
tent men. The State Veterinarian shall be em-
powered to employ at least one State Inspector,
whose duty it shall be to inspect the work of the
county inspectors, or .to do any special work at any
time and place when directed by the State Veteri-
narian, and who shall be paid from the funds ap-
propriated by the State of Georgia for the work of
tick eradication. Acts 1918, pp. 256, 257.
§ 2082(11). Quarantine and dipping; notice;
lien for expenses. — Cattle, horses or mules infected
with cattle ticks, or exposed to tick infestation, the
owner or owners of which, after thirty days' writ-
ten notice from a local or State inspector, shall fail
or refuse to dip such animals regularly every four-
teen days in a vat properly charged with arsenical
solution, as recommended by the United States
Bureau of Animal Industry, under the supervision
of the local inspector in charge of tick eradication,
shall be placed in quarantine and dipped and cared
for at the expense of the owner by the local in-
spector. Quarantine and dipping notice for cattle,
horses or mules, the owner or owners of which
cannot be found, shall be served by posting copy
of such notice in not less than three public places
within the county, one of which shall be at the
county court house. Such posting of quarantine
notice shall be due and legal notice. It shall be
the duty of the sheriff of any county in which the
work of tick eradication is in progress to render
said inspector any assistance necessary in the en-
forcement of this Act. Any expense incurred in
the enforcement of this provision shall be con-
stituted a lien. upon any animals so quarantined;
and should the owner fail or refuse to pay said ex-
pense after three days' notice, the animals shall be
disposed of as provided by Section 2034 of the
Civil Code of Georgia, so far as said section refers
to advertising and other proceedings to sell. The
proceeds of said sale shall be applied to the pay-
ment of legal costs, including the expense of ad-
vertising, feed and expense of quarantine and
dipping or disinfecting said animals, and the
balance shall be paid to the owner, if known, and
if unknown, shall, at the expiration of ninety days
from the date of sale, if no legal claim has been
[470]
§ 2082(12)
COMMISSIONER OF AGRICULTURE
§ 2084(1)
established to same, be applied and paid into the
tick eradication fund of the county; provided
further, that the lien herein created shall be super-
ior to all liens except liens for taxes. Acts 1918, pp.
256, 257.
As to violation, see § 578 (1), P. C.
Constitutionality. — This act is not unconstitutional be-
cause it violates the due-process clause of the Federal
constitution and a similar provision in the State constitu-
tion, in that it does not give the owners of cattle notice
and an opportunity to be heard in opposition to their
quarantine and dipping for such purpose. The said act is
not unconstitutional because it violates the fifth amend-
ment to the Federal constitution, or the constitution of this
State, § 6358, or § 6360. Rowland v. Morris, 152 Ga. 842,
111 S. F. 389.
Proceeding Under Warrant. — The inspector and sheriff
were authorized to quarantine and dip the cattle of the
plaintiff without any warrant; and the fact that they were
proceeding to do so under color of an affidavit made by the
inspector and a warrant issued thereon by the judge of
the superior court, when there was no authority for such
procedure, does not render their action illegal and void.
Rowland v. Morris, 152 Ga. 842, 111 S. F. 389.
Liability of Inspector for Damage. — An inspector who is
grossly negligent in causing animals to be dipped under this
law with a wanton and malicious intent to injure is per-
sonally liable in damages. McClellan v. Carter, 30 Ga.
App. 150, 117 S. F. 118.
§ 2082(12). Regulations not affected. — Nothing
contained in this Act shall be construed as affect-
ing any rule or regulation heretofore or hereafter
passed by the Department of Agriculture govern-
ing tick eradication in Georgia. Acts 1918, p. 259.
§ 2082(13). Quarantine along border of Florida
and Alabama.— The State Veterinarian shall pro-
vide and maintain an effective quarantine along the
border between the States of Georgia, Florida, and
Alabama, by the use of patrols or in such other
manner as in his judgment will most effectively
prevent reinfestation of the tick-free area in the
State of Georgia with the cattle-fever tick
(Margaropus Annulatus.) Acts 1924, pp. 78, 79.
§ 2082(14). When reinfestation eradicated with-
out expense to county. — After a county has com-
pleted tick-eradication as evidenced by complete
release of all State and Federal quarantine restric-
tions, any subsequent reinfestation of the tick-free
area shall be eradicated by the State Veterinarian
at the expense of the State and without expense to
the county, as at present provided in Section 2082-
(10). Acts 1924, pp. 78, 79.
§ 2082(15). Fencing on State border, negotia-
tion for, etc.— The State Veterinarian is hereby
authorized to negotiate with the county authorities
and property owners of the border counties re-
garding the construction of suitable fencing on the
State lines, and report to the next session of the
General Assembly his acts, findings and recom-
mendations. Acts 1924, pp. 78, 79.
§ 2082(16). Appropriations. — The sum of
twelve thousand five hundred dollars for the year
1924 and twenty-five thousand ($25,000.00) dollars
for the year 1925 be and the same is hereby appro-
priated to the State Veterinarian, Department of
Agriculture, for the purpose of executing the pro-
visions of this Act. Acts 1924, pp. 78, 79.
§ 2082(17). When transporting hides and use
of pine straw prohibited. — To prevent reinfesta-
tion of the tick-free area of Georgia through tick
infested hides or through pine straw or other
material used for bedding or other purposes, the
shipping or transporting of hides, or the use of
pine straw or other materials exposed to tick in-
festation originating in the tick infested and
quarantined area of any other state into, within or
through the State of Georgia is hereby prohibited.
Acts 1924, pp. 78, 79.
As to the penalty for the violation of this act, see §
578 (2) P. C.
§ 2082(18). Nitrogen setting bacteria; appro-
priation; distribution. — The sum of two thousand
($2,000.00) dollars, or so much thereof as may be
necessary, is hereby appropriated annually out of
the fees arising from the sale of fertilizer tax tags
to the Department of Agriculture, for the purchase
of chemicals and for the equipment and mainte-
nance of a laboratory for growing nitrogen setting
bacteria for leguminous crops.
The Commissioner of Agriculture is hereby
authorized to grow and distribute these bacteria to
the farmers of the State at a price not to exceed
the cost of producing. Acts 1914, p. 14.
§ 2083. (§ 1793.) Rules to be made by commis-
sioner.— The Commissioner shall be empowered
to make all necessary rules and regulations for the
purpose of carrying out the design and intentions
of this Article. Acts 1874, p. 7.
§ 2084. (§ 1794). Appropriation for depart-
ment.— For the purpose of practically carrying out
the designs for which this department of agricul-
ture is instituted in this State, an appropriation
shall be made for the support and maintenance of
said department, and for the payment of employees
that it will be necessary to employ to properly
carry out the intentions of this Article, of ten thou-
sand dollars per annum; said sum not to include
the salary of the Commissioner or his clerk. Said
amount shall be especially appropriated from the
treasury for said purpose, and shall be accounted
as an annual expense of the State; and said amount
shall be drawn from the State treasury by the com-
missioner, under rules to be established for said
commissioner by the Governor. Said commis-
sioner shall make an annual report, and also make
a quarterly report of the receipts and expenditures
of his office; and the same shall be approved by the
Governor before any further amount is drawn by
said commissioner from the treasury. Acts 1874. p.
7.
§ 2084(1). Additional appropriation; quarterly
reports. — For the purpose of carrying out the de-
signs for which the Department of Agriculture
was instituted in this State, an appropriation shall
be made for the support and maintenance of said
department, and for the payment of employees
that it will be necessary to employ to properly
carry out the intentions of this article, and for the
payment of various publications the Commissioner
of Agriculture may deem necessary to issue from
time to time, the intent of said publications to be
the exploiting of the various agricultural interests
of the State of Georgia, of five thousand ($5,000.00)
dollars per annum; said sum not to include the
salary of the commissioner or his clerk. Said
amount shall be especially appropriated from the
Treasury for said purpose, and shall be accounted
as an annual expense of the State; and said
[471]
§ 2085
FOODS, DRUGS AND LIQUORS
§ 2094
amount shall be drawn from the State Treasury,
by the commissioner, under rules to be established
for said commissioner by the Governor. Said
commissioner shall make a quarterly report of the
receipts and expenditures of his office; and the
same shall be approved by the Governor before
any further amount is drawn by said commissioner
from the Treasury. Acts 1914, p. 12.
CHAPTER 2.
Duty as to Propagation and Protection of Fish.
§§ 2085-2087. Repealed by acts 1911, p. 137, which
in turn was superseded in part by Acts 1924, p. 101.
See §§ 2158(1) et seq.
§ 2088. (§ 1798.) "Closed time" for shad. —
There shall be a "closed time" in all the rivers of
Georgia, in which shad are caught, of forty-eight
hours, commencing at sunrise on Saturday morn-
ing of each week, and ending at sunrise on Mon-
day morning of the next week, during which
"closed time" no shad or other migratory fish shall
be caught by nets, wires, pounds, or any other
means whatever, nor shall such nets, wires,
pounds, or other apparatus be left set in said rivers
during said "closed time." The meshes of nets or
other apparatus for catching said fish shall not be
less than five inches.
See §§ 2089 (1) and 2089 (2). As to penalty for violation,
see P. C, §§ 606, 607.
§ 2089. (§ 1799). Taking shad regulated.— Re-
pealed by § 2089(1).
§ 2089(1) Open season for taking shad. — The
open season, during which any person may take
shad fish from the waters of this State in any man-
ner, shall be from February 1st to April 20th,
following, Provided, that on the St. Mary's River
in said State the open season for taking shad shall
be from January 1st to April 20th, following. Acts
1918, p. 270; 1921, p. 234.
§ 2089(2). Closed time during open season. —
During each week of such open season there shall
be a closed time during which no shad fish shall be
taken from the waters of this State in any manner,
beginning at sundown Friday of each week, and
extending until sunrise Monday following, Pro-
vided that nothing contained in this section shall
apply to the St. Mary's River. Acts 1918, p. 270;
1921, p. 234.
As to the penalty for the violation of this act, see §
608 (1) P. C.
§ 2088(3). License required. — Any person who
shall take shad fish from the waters of this State
for purposes of sale, without first procuring a
license from the Commissioner of Game and Fish,
as hereinafter provided, shall be guilty of a mis-
demeanor. Acts 1918, pp. 270, 271.
As to the penalty for the violation of this Act, see §
608 (3) P. C.
§ 2089(4). License fees.— The license as pro-
vided in the foregoing section shall be as follows:
That person's having a residence within this State
and being citizens of the United States, shall pay a
fee of one dollar ($1.00) for such license, and that
citizens of other states residing outside of this
State, and wrho take shad from the waters of this
State for the purposes of sale, shall first procure
from the Commissioner of Game and Fish of this
State a license, the fee for which shall be ten dol-
lars ($10.00), and that aliens, whether residents of
this or other States, who engage in the taking of
shad fish for purposes of sale from the waters of
this State shall first procure a license from the
Commissioner of Game and Fish of this State, the
cost of which shall be ten dollars ($10.00), and
that all licenses provided for in this section of this
Act shall be good for the term of one year from
the first day of the month on which same was
issued. Acts 1918, pp. 270, 271.
As to the penalty for the violation of this act, see §
608 (5) P. C.
§§ 2090-2091. Repealed by Acts 1911, p. 137
which in turn were partly repealed by Acts 1924, p.
101. See §§ 2158(1) et seq.
CHAPTER 3.
Foods, Drugs, and Liquors, Adulteration or Mis-
branding Prohibited.
ARTICLE 1.
Chief Food Inspector and Chief Drug Inspector.
§ 2092. Chief food inspector. — The offices of
chief food and drug inspector, as heretofore exist-
ing, are hereby separated, and the chief food and
drug inspector heretofore appointed by the commis-
sioner of agriculture shall be chief food inspector,
and shall be chargeable with all the duties and shall
exercise all of the powers as prescribed in this
Chapter, except such as appertain to the adultera-
tion, misbranding, and imitation of drugs and
medicines. Acts 1906, p. 83; 1908, p. 80.
§ 2093. His appointment, salary, and duties. —
The commissioner of agriculture is authorized to
appoint, by and with the advice and consent of the
State chemist, a chief food inspector for the State,
who shall receive a salary not to exceed three
thousand dollars per annum, and actual expenses
while discharging his duty. His whole time shall be
at the disposal of the commissioner of agriculture,
and his duty shall be to travel about the State as
directed, and take samples of such articles as
directed, and forward them to the department of
agriculture for scientific examination and analysis.
Acts 1910, p. 84; 1919, p. 281.
§ 2094. Chief drug inspector, his appointment,
duties, and salary. — The commissioner of agricul-
ture shall appoint, upon the recommendation of the
Georgia State board of pharmacy, a chief drug in-
spector, and whenever in future a vacancy may
occur in this office the appointee shall be named
at the suggestion and upon the recommendation of
the State board of pharmacy. The salary of the
chief drug inspector shall not exceed the sum of
three thousand dollars per annum. His whole
time shall be at the disposal of the commissioner
of agriculture, and his duties shall be those pre-
scribed in this Chapter, to visit and inspect manu-
facturing establishments, chemical laboratories
and such other establishments as manufacture and
[ 472]
§ 2094(1)
CHIEF FOOD INSPECTOR AND CHIEF DRUG INSPECTOR
§ 2098
put up for sale such articles as are known as family
remedies, grocers drugs, flavoring extracts, flavor-
ing essences, toilet articles, bottlers' supplies,
stock powders and veterinary remedies, and such
other duties as he may be directed by the commis-
sioner of agriculture to perform, and specifically
the following duty recommended by the State
board of pharmacy: He shall report to the com-
missioner of agriculture any and all violations of
any of the drug laws of the State, and particularly
any person operating without licenses as required
by law. Acts 1911, p. 170; 1919, p. 280.
As to duties of state board of pharmacy, see § 1726.
§ 2094(1). Appropriation for salaries, etc., of
chief food and drug inspectors. — A sum, not to ex-
ceed the total amount received from the sale of in-
spection tax stamps on concentrated commercial
feeding stuffs, is hereby appropriated annually for
the purpose of paying the salaries of the Chief
Food Inspector, and the Chief Drug Inspector, the
traveling expenses of such officials and their assist-
ants, including the cost of obtaining samples, ex-
press, freight, drayage and other expenses incident
to such inspection, and expenses incurred in the
inspection of slaughter houses and dairies, includ-
ing the compensation of veterinarians for that pur-
pose, to be paid out of the funds derived from the
sale of inspection tax stamps on concentrated com-
mercial feeding stuffs.
The Governor shall draw warrants upon the
treasury against such funds from time to time to
pay the salaries and expenses herein provided for,
upon requisition of the Commissioner of Agricul-
ture. Acts 1913, p. 28.
§ 2095. Proceedings to be had on inspector's re-
port.— When such report has -been made to the
commissioner, he shall cite such person to appear
before him and the attorney-general for a hearing,
as provided for in this Chapter. If after such hear-
ing they shall decide that any of the drug laws of
Georgia have been violated, the commissioner of
agriculture shall then certify the facts to the
proper prosecuting official, as directed in this
Chapter. When such facts have' been certified to
any State solicitor, it shall be his duty to prosecute
the offenders, whether the prosecution arise under
the provisions of this Chapter or under the general
drug laws of the State.
§ 2096. State chemist's assistants, and labora-
tory facilities. — The State chemist may appoint, by
and with the consent of the commissioner of agri-
culture, such assistants and experts in his office as
may be required to carry out the provisions of this
Chapter; provided that the number of such assist-
ants and experts and the salaries and compensation
to be paid them shall be first submitted to and ap-
proved by a board composed of the Governor, the
commissioner of agriculture, and comptroller-gen-
eral. The State chemist and the commissioner
may also make such expenditure for apparatus,
chemicals, and increased laboratory facilities, as in
their judgment may be required: Provided, that
the total expenditures for any one }rear shall not
exceed the sum appropriated in this Chapter.
§ 2096(1). Additional appropriation for chemical
department. — The sum of five thousand dollars,
[4
($5,000), or as much thereof as may be necessary,
is hereby appropriated annually in addition to that
already appropriated, out of any funds not other-
wise appropriated, and the Governor is authorized
and directed to issue his warrant on the Treasurer
therefor, for additional assistants, maintenance of
laboratory, purchase of chemicals and all other
necessary expenses in connection with the analysis
of fertilizer and feed-stuffs, to be expended as
follows: $3,000 to employ additional experts and
assistants, $2,000 for equipment and maintenance
of laboratory, purchase of chemicals and all other
necessary expenses incidental to the chemical
analysis of fertilizer and feed-stuffs. Acts 1910, p.
85.
§ 2096(2). Other additional appropriation; chem-
ical department. — The sum of seven thousand five
hundred ($7,500.00) dollars, or so much thereof as
may be necessary, is hereby appropriated annually
to the Department of Agriculture for the employ-
ment of additional assistance to the State Chemist,
for maintenance laboratory, purchase of chemicals
and all other necessary expenses in connection
with the analyses of fertilizers, feeding stuffs,
foods and drugs, and all experimental work which
may be conducted, and all other expenses inci-
dental to the inspection and analyses of fertilizers,
feeding stuffs, food and drugs. This appropriation
to be in addition to the sums now appropriated for
maintenance of the chemical department of the
Department of Agriculture. Acts 1914, p. 13.
§ 2097. Department of agriculture, duties of. —
The State department of agriculture is charged
with the duties of inspection and analysis required
for the proper enforcement of this Chapter. The
commissioner of agriculture is directed to appoint
officers, who shall perform all the duties required
in the execution of this Chapter. The commis-
sioner, realizing the responsibilities resting on him
for the protection of the lives and health of the
people, shall, in making these appointments, be
guided by the results of careful and diligent in-
quiry into the character, fitness, and reputation for
integrity and industry of all the officers whom he
may appoint, who may be in any way entrusted
with the execution of this law. Such officers,
when appointed, shall hold office during good be-
havior and attention to duty, and shall not he re-
moved from office except for cause: Provided,
such term of office of said officers shall terminate
with that of the office of commissioner of agricul-
ture. Acts 1906, p. 83.
§ 2098. Rules for enforcement. — The commis-
sioner of agriculture, with the advice of the attor-
ney-general, shall have authority to establish such
rules and regulations as shall not be inconsistent
with the provisions of this Chapter, and as in his
judgment will best carry out the requirements
thereof. He may exercise discretion as to the class
of products he first subjects to rigorous inspection
and analysis, realizing that the fullest and most
complete execution of this law under a limited ap-
propriation must be a matter of growth. His first
efforts shall be more particularly directed to foster-
ing the young and growing agricultural and manu-
facturing industries of the State, as the dairy, beef,
fruit, cottonseed oil. and syrup industries, by sup-
3]
§ 2099
WHEN AN ARTICLE IS ADULTERATED OR MISBRANDED
§ 2103
pressing adulteration in butter, cheese, milk, feed-
stuffs, ciders, vinegars, syrups, lard and lard com-
pounds.
ARTICLE 2.
Meaning of Certain Terms.
§ 2099. Terms "drug" and "food" defined. — The
term "drug," as used in this Chapter, shall include
all medicines and preparations recognized in the
United States Pharmacopoeia, or National Formu-
lary, for internal or external use, and any sub-
stance or mixture of substances intended to be
used for the cure, mitigation, or prevention of
disease of either man or other animals. The term
"food," as used herein shall include all articles used
for food, drink, confectionery, or condiment by
man or other animals, whether simple, mixed, or
compound. Acts 1906, p. 83.
§ 2100. "Person" or "party," meaning of terms.
— The words "person" or "party," shall be con-
strued to import both the plural and the singular,
as the case demands, and shall include corpora-
tions, companies, societies, and associations.
When construing and enforcing the provisions
-of this Chapter, the act, omission, or failure of any
officer, agent, or other person acting for or em-
ployed by the corporation, company, society, or
association, within the scope of his employment or
office, shall in every case be also deemed to be
the act, omission, or failure of such corporation,
company, society, or association as well as that of
the person.
For similar provisions as to meaning of terms, see § 4,
par. 5 and § 5, and as to responsibility of corporation, see
§ 2225.
ARTICLE 3.
Adulteration or Misbranding Prohibited.
§ 2101. Adulteration or misbranding prohibited.
— It shall be unlawful for any person to manufac-
ture, sell, or offer for sale, any article of food,
drugs, medicines, or liquors, which is adulterated
or misbranded, or which contains any poisonous
or deleterious substance within the meaning of this
Chapter, and any person who shall violate any of
the provisions of this section shall be guilty of a
misdemeanor. Acts 1906, p. 83.
As to when dealer is protected, see § 2116. As to penalty
for violation, see P. C, § 451.
Cited in Evitt v. State, 23 Ga. App. 532, 534, 98 S. E. 737.
§ 2102. Examinations of foods and drugs. — The
examination of specimens of foods and drugs shall
be made by the State chemist, or under his direc-
tion and supervision, for the purpose of determin-
ing from such examination whether such articles
are adulterated or misbranded within the meaning
of this Chapter; and if it shall appear from any
such examination that any of such specimens is
adulterated or misbranded within the meaning of
this Chapter, the commissioner of agriculture shall
cause notice thereof to be given to the party from
whom such sample was obtained. Any party so
notified shall be given an opportunity to be heard
before the commissioner of agriculture and the at-
torney-general, under such rules and regulations
as majr be prescribed by them, and if it appears
that any of the provisions of this Chapter have
been violated by such party, then the commissioner
of agriculture shall at once certify the facts to the
proper prosecuting attorney, with a copy of the re-
sults of the analysis or the examination of such
article, duly authenticated by the analyst or officer
making such examination, under the oath of such
officer. In case it shall appear to the satisfaction
of the commissioner of agriculture and the attor-
ney-general that the violation of this Chapter is
properly a subject of interstate commerce, or
otherwise comes under the supervision and juris-
diction of the United States, then the commissioner
of agriculture shall certify the case to the United
States district attorney in whose district the viola-
tion may have been committed; but if it be under
the jurisdiction of the courts of this State, then the
commissioner shall certify the case to the solicitor
of the court in the county where the offense oc-
curred. It shall be the duty of the State solicitor
to prosecute all persons violating any of the pro-
visions of this Chapter, as soon as he receives the
evidence transmitted by the commissioner of agri-
culture. After judgment of the court, notice shall
be given by publication in such manner as may be
prescribed by the rules and regulations aforesaid.
As to standards fixed by commissioner, see § 2115.
Sufficiency of Indictment. — An indictment charging that
the defendant unlawfully sold "adulterated food," in that
he sold to a named person "a portion of an animal, to wit,
a cow, unfit for food, not manufactured, and said portion
of said cow being the product of a diseased cow, and be-
ing that of a cow that had died otherwise than by slaugh-
ter," was not subject to demurrer because of failure .to
show compliance with statutory provisions as to examina-
tion of food by or under the direction of the State chemist,
notice to the defendant, determination by the commissioner
of agriculture that the provisions of the pure -food law had
been violated, etc. (this section). Nor was it subject to
demurrer because of failure to show how or in what way
the portion sold was unfit for food, or was diseased, or
what kind of product of the diseased cow was sold. Nor
was it ground for abatement of the prosecution that the
statutory provisions referred to above were not complied
with. Evitt v. State, 23 Ga. App. 532, 98 S. E. 737.
ARTICLE 4.
When an Article Is Adulterated or Misbranded.
§ 2103. Adulterated, when an article is. — For
the purposes of this Chapter an article shall be
deemed to be adulterated —
In case of drugs:
1. If, when a drug is sold under or by a name rec-
ognized in the United States Pharmacopoeia or
National Formulary, it differs from the standard
of strength, quality, or purity as determined by the
test laid down in the United States Pharmacopoeia
or National Formulary official at the time of in-
vestigation: Provided, that no drug defined in the
United States Pharmacopoeia or National Formul-
ary shall be deemed to be adulterated under this
provision if the standard of strength, quality, or
purity be plainly stated upon the bottle, box, or
other container thereof, although the standard ma}r
differ from that determined by the test laid down
in the United States Pharmacopoeia or National
Formulary.
2. If its strength or purity fall below the pro-
fessed standard or quality under which it is sold.
[474]
2104
WHEN AN ARTICLE IS ADULTERATED OR MISBRANDED
§ 2104
In the case of confectionery:
If it contain terra-alba, ibarytes, talc, chrome
yellow, or other mineral substance or poisonous
color or flavor, or other ingredient deleterious or
detrimental to health, or any vinous, malt, or
spirituous liquor, or compound or narcotic drug.
In case of food:
1. If any substance has been mixed and packed
with it so as to reduce or lower or injuriously affect
its quality or strength.
2. If any substance has been substituted wholly
or in part for the article.
3. If any valuable constituent of the article has
been wholly or in part abstracted.
4. If it be mixed, colored, powdered, coated, or
stained in a manner whereby damage or inferiority
is concealed.
5. If it contain any added poisonous or other
added deleterious ingredient which may render
such article injurious to health: Provided, that
when in preparation of food products for shipment
they are preserved by any external application ap-
plied in such manner that the preservative is
necessarily removed mechanically, or by macera-
tion in water, or otherwise, and directions for the
removal of said preservative shall be printed on the
covering or the package, the provisions of this
Chapter shall be construed as applying only when
said products are ready for consumption.
6. If the package, vessel, or bottle containing it
shall be of such a composition, or carry any attach-
ment made of such a composition or metal or alloy,
as will be acted upon in the ordinary course of use
by the contents of the package, vessel, or bottle in
such a way as to produce an injurious, deleterious,
or poisonous compound.
7. If it consists in whole or in part of a filthy,
decomposed, or putrid animal or vegetable sub-
stance, or any portion of an animal unfit for food,
whether manufactured or not, or if it is the prod-
uct of a diseased animal, or one that has died
otherwise than by slaughter. Acts 1906, p. 83.
As to standards fixed by commissioner, see § 2115.
Scope. — Plainly, as will appear from a reference to the
third subdivision of this section, it has reference not only
to drugs and preparations recognized by the standard
work, but also to others. Lewis v. Brannen, 6 Ga. App.
419, 421, 65 S. E. 189.
Cited in Evitt v. State, 23 Ga. App. 532, 534, 98 S. E.
737, to sustain the trial court in overruling demurrer to
an indictment under P. C., § 451.
§ 2104. Misbranded. — The term "misbranded,"
as used herein, shall apply to all drugs, or articles
of food, or articles which enter into the composi-
tion of food, the package or label of which shall
bear an}' statement, design, or device regarding
such articles, or the ingredients or substances con.
tained therein, 'which shall be false or misleading
in any particular, and to any food or drug product
which is falsely branded as to the State, Territory,
or country in which it is manufactured or pro-
duced.
For the purposes of this Chapter, an article shall
also be deemed to be misbranded —
In case of drugs:
1. If it be an imitation of, or offered for sale under
the name of, another article.
2. If the contents of the package as originally
put up shall have been removed, in whole or in
part, and other contents shall have been placed in
such package, or if the package fail to bear a
statement on the label, in as conspicuous letters as
is or may be prescribed by the United States law
or rules and regulations, of the quantity or propor-
tion of any alcohol, morphine, opium, cocaine,
heroin, alpha or beta eucaine, chloroform, cannabis
indica, chloral hydrate, or acetanilide, or any
derivative or preparation of any such substances
contained therein: Provided, that nothing in this
paragraph shall be construed to apply to the filling
of written prescriptions, furnished by regular li-
censed practicing physicians, and kept on file by
druggists as required by law, or as to such prepara-
tions as are specified and recognized by the United
States Pharmacopoeia or National Formulary.
3. If its package or label shall bear or contain
any statements, design, or device regarding the
curative or therapeutic effect of such article or any
of the ingredients.
In case of food:
1. If it be an imitation of, or offered for sale un-
der the distinctive name of, another article.
2. If it be labeled or branded so as to deceive or
mislead the purchaser, or purport to be a foreign
product when not so, or is an imitation in package
or label or another substance of a previously
established name, or which has been trade-marked
or patented, or, if the contents of the package as
originally put up shall have been removed in whole
or in part, and other contents shall have been
placed in such package, or, if it fail to bear a state-
ment on the label in conspicuous letters of the
quantity or proportion of any morphine, opium,
cocaine, heroin, alpha or beta eucaine, chloroform,
cannabis indica, chloral hydrate, or acetanilide, or
any derivative or preparation of any of such sub-
stances contained therein.
3. If in package form, the quantity of the con-
tents be not plainly and conspicuously marked on
the outside of the package in terms of weight,
measure, or numerical count; Provided, however,
that reasonable variations shall be permitted, and
tolerances and also exemptions as to small pack-
ages shall be established by rules and regulations
made in accordance with the provisions or Section
2115.
4. If the package containing it or its label shall
bear any statement, design, or device regarding
the, ingredients of the substances contained therein,
which statement, design, or device shall be false or
misleading in any particular: Provided, that an
article of food which does not contain any added
poisonous or deleterious ingredients shall not be
deemed to be adulterated or misbranded in the
following cases:
(1.) In the case of mixtures or compounds which
may be now, or from time to time hereafter, known
as articles of food, under their own distinctive
names, and not an imitation of or offered for sale
under the distinctive name of another article, if
the same be accompanied on the same lable or
brand with a statement of the place where said
article has been manufactured or produced.
(2.) In the case of articles labeled, branded, or
tagged, so as to plainly indicate that they are com-
pounds, imitations, or blends, and the word "com-
pound," "imitation," or "blend." as the case may
[475]
§ 2105
CONCENTRATED COMMERCIAL FEEDING-STUFFS
2110
be, is plainly stated in conspicuous letters on the
package in which it is offered for sale: Provided,
that the term "blend," as used herein shall be con-
strued to mean a mixture of like substances, not
excluding harmless coloring or flavoring ingredi-
ents used for the purpose of coloring and flavoring
only: And provided further, that nothing in this
Chapter shall be construed as requiring or compell-
ing proprietors or manufacturers of proprietary
foods which contain no unwholesome added ingre-
dient to disclose their trade formulas, except in so
far as the provisions of this Chapter may require
to secure freedom from adulteration or misbrand-
ing: Provided, also, that this Chapter shall not
apply to stocks of drugs and medicines on hand in
this State, until the first day of August, 1908. Acts
1913, p. 44.
As to standards fixed by commissioner, see § 2115.
Editor's Note. — This section was amended in 1913 (Acts
1913, pp. 44, 45) to add the third paragraph now appearing
in the first division of this section, the part on drugs.
ARTICLE 5.
Samples.
§ 2105. Samples, how taken. — Samples for
analysis shall be taken by the duly qualified and
sworn inspectors, who shall take samples of such
articles as may be directed by the commissioner of
agriculture, and, whenever practicable, samples
shall be taken in original unbroken packages; said
package shall be wrapped in paper and tied
securely, and sealed over the cord with sealing-
wax, on which the inspector shall impress his
official seal. In cases where it is not practicable to
send a sample for analysis in an original package,
as, for instance, in case of syrups, or other liquids
in barrels, or flour in barrels, etc., the inspector
shall take a fair sample of the same in the presence
of the seller, place it in a suitable receptacle,
securely close and wax it and impress his official
seal upon the wax, and forward the same to the
commissioner of agriculture. In the execution of
his duties the inspector shall have free access at all
reasonable hours into any place where it is sus-
pected that impure foods are being manufactured,
or wherein any article of food or drink, drug or
medicine, adulterated with any deleterious or
foreign ingredients, exists. In calling for and tak-
ing a sample of any goods, the inspector shall
tender to the seller the market price asked for
the same. Acts 1906, p. 83.
ARTICLE 6.
Concentrated Commercial Feeding-Stuffs.
§ 2106. Concentrated com.meri.cal feeding-stuff.
— The term "concentrated commercial feeding-
stuff," as used herein, shall include cottonseed
meal, linseed meal, corn and cob meal, cocoanut
meal, gluten feeds, gluten meal, germ feeds, corn
feeds, starch feeds, sugar feeds, dry brewer's
grains, malt sprouts, dried distiller's grain, dried
beet refuse, hominy feed, cerealine feeds, rice
meals, rice brans, rice polish, peanut meal, oat
feeds, corn and oat feeds, corn bran, wheat bran,
wheat middlings, wheat shorts, ground beef or fish
scraps, mixed feeds, clover meal, alfalfa meal and
feeds, peavine meal, cottonseed meal feeds, whole
seeds and grains and meals, mixed or unmixed, made
from such seeds or grains, and all other materials
of a similar nature. Acts 1906, p. 83.
Scope. — This section is sufficiently broad to include beet
pulp as a "concentrated commercial feeding-stuff;" and
since the litigants specifically contracted for the sale and
purchase of beet pulp in sacks containing 88 pounds, in
direct violation of § 2107, and since § 452 of the Penal
Code penalizes any violation of the provisions of chapter
3 of the fifteenth title of the Political Code, which
includes § 2107, by a fine, or imprisonment, or both, the
contract under consideration was void, and the court erred
in overruling the defendant's demurrer. Southern Flour,
etc., Co. v. Smith, 31 Ga. App. 52, 53, 120 S. E. 36.
§ 2107. Registration of feeding-stuff.— Every lot
or parcel of concentrated commercial feeding-stuff
and condimental feed used for feeding domestic
animals or poultry, sold, offered, or exposed for
sale within this State, shall be registered annually
with the commissioner of agriculture, and shall
have affixed thereto, or printed on the bag or other
package, in a conspicuous place on the outside there-
of, a legible and plainly printed statement, clearly
and truly certifying the number of net pounds of
feeding-stuff contained therein: Provided, that all
concentrated commercial feeding-stuffs shall be in
standard-weight bags or packages of fifty, seventy-
five, one hundred, one hundred and twenty-five,
one hundred and fifty, one hundred and seventy-
five, or two hundred pounds each; also the name,
brand, or trade-mark under which the article is
sold, the name and address of the manufacturer,
importer, or jobber, and a statement of the maxi-
mum percentage it contains of crude fibre, and the
minimum percentage it contains of crude fat and
crude protein, allowing one per cent, of nitrogen to
equal six and one quarter per cent, of protein; both
constituents to be determined by the method in use
at the time by the association of agricultural chem-
ists of the United States.
See note to preceding section.
§ 2108. Samples of
feeding-stuff. — Every
jobber, agent, or seller,
exposing for sale any
concentrated commercial
manufacturer, importer,
before selling, offering, or
concentrated commercial
feeding-stuff as defined in section 2106, shall, for
each and every feeding-stuff bearing a distinct
name or trade-mark, file with the commissioner of
agriculture a copy of the statement named in sec-
tion 2107, and accompany said statements, when
so requested by the commissioner of agriculture,
by a sealed glass jar or bottle containing at least
one pound of the feeding-stuffs to be sold, exposed,
or offered for sale, which sample shall correspond
within reasonable limits to the feeding-stuff which
it represents in the percentage of protein, fat, and
fibre which it contains.
§ 2109. Sample shall be analyzed. — The com-
missioner of agriculture shall cause at least one
sample of each distinct brand of feeding-stuff sold
in this State to be analyzed annually by or under
the direction of the State chemist. Said analysis shall
include determinations of crude fat and of crude
protein, and such other determinations as may at
any time be deemed advisable by the State chemist.
§ 2110. Inspection fees. — Each manufacturer,
importer, jobber, agent, or seller of any con-
[476]
§ 2111
STANDARDS OF PURITY TO BE FIXED
§ 2115
centrated commercial feeding-stuffs, as defined in
section 2106, shall pay to the commissioner of agri-
culture an inspection tax of twenty cents per ton
for each ton of such concentrated feeding-stuffs
sold, offered, or exposed for sale, and shall affix to
each car shipped in bulk, and to each bag, barrel,
or other package of such concentrated feeding-stuff,
a stamp to be furnished by said commissioner of
agriculture, indicating that all charges specified in
this section have been paid: Provided, that the in-
spection tax of twenty cents per ton shall not apply
to cottonseed hulls, hays and straws, whole seeds
and grains and pure meals made from whole grains
and seeds, not mixed with other substances, but
sold separately as distinct articles of commerce.
Should any of these materials otherwise exempt be
mixed or adulterated with any substance for the
purpose of sale, the package which contains it, or
in which it is offered for sale, must have plainly
marked or indicated thereon the true composition
of the mixture, or the character of the adulteration.
Tax stamps shall be in denominations as follows:
One-half cent, three-quarters cent, one cent, one
and one-quarter cents, one and one-half cents, one
and three-quarter cents, two cents, or multiples
thereof. The commissioner of agriculture may
prescribe the form of such tax stamps. Whenever
a manufacturer, importer, or jobber of a con-
centrated feeding-stuff shall have filed the state-
ment named in this Article, and paid the inspec-
tion tax, no agent or seller of said manufacturer,
importer, or jobber shall be required to file such
statement or pay such tax.
As to registration of feeding- stuff, see § 2107.
§ 2111. Registration of feeding-stuffs. — The
commissioner of agriculture shall have the power
to refuse the registration of any feeding-stuffs un-
der a name which would be misleading as to the
materials of which it is made, or when the percent-
age of crude fibre is above, or the percentage of fat
and protein is below, the standards adopted under
section 2107. Should such materials as referred
to above be registered, and it is afterwards dis-
covered that they are in violation of the above pro-
vision, the commissioner of agriculture shall have
the power to cancel the registration. When the
special inspector provided for in this Article is un-
able to cover the territory sufficiently, the commis-
sioner of agriculture may utilize the oil and
fertilizer inspectors in taking samples of drugs,
feed-stuffs, or food products, without other
compensation than that now received.
§ 2112. Penalties. — The sale of mouldy and
damaged feeding-stuff is prohibited as feeds, ex-
cept on full notice in writing to the purchaser of the
nature and extent of the damage. Any manufac-
turer, importer, jobber, agent, or seller who shall
sell, offer, or expose for sale or distribution any
concentrated commercial feeding-stuffs, without
complying with the requirements of the preceding
section of this Article, or who shall sell, offer, or
expose for sale or distribution any concentrated,
commercial feeding-stuff which contains sub-
stantially a smaller percentage of constituents than
are certified to be contained, or who shall adulterate
any feeding-stuff with foreign, mineral, or other
similar substance or substances, such as rice hulls
[ 47
or chaff, peanut-shells, corncobs, oat-hulls, or other
similar material of little or no feeding value, or
with substances injurious to the health of domestic
animals, shall be guilty of a violation of the pro-
visions of this Article, and the lot of feeding-stuff
in question shall be subject to seizure, condemna-
tion, and sale or destruction by the commissioner
of agriculture; and it shall be the duty of the sheriff
to seize and sell by public sale each and every bag,
package, or lot of commercial concentrated feed-
ing-stuffs sold, or offered for sale or for distribu-
tion, which shall not have securely attached the
stamp mentioned in section 2110: Provided, that
should the owner or agent show to the satisfaction
of the sheriff that such stamps were attached and
the same have become detached, the sheriff shall
release the same without cost to the owner or
agent. All moneys or proceeds derived from the
seizure and sale of concentrated commercial feed-
ing-stuffs shall be covered into the State treasury.
§ 2113. Samples, how collected. — The commis-
sioner of agriculture is hereby authorized to have
collected a sample, not exceeding two pounds in
weight, for analysis, from any lot, parcel, or pack-
age of concentrated feeding-stuff as defined in sec-
tion 2098, which may be in the possession of any
manufacturer, importer, agent, or dealer; but said
sample shall be taken from not less than ten per
cent, of the whole lot inspected.
§ 2114. Tax stamps. — All manufacturers and
manipulators, importers, and jobbers, or agents rep-
resenting them, who have registered their feed-
ing-stuff in compliance with this Article, shall for-
ward to the commissioner of agriculture a request
for tax stamps, stating that said stamps are to be
used upon brands of feeding-stuffs registered in ac-
cordance with this Article, and said request shall
be accompanied with the sum of twe'nty cents per
ton as an inspection tax, except in case of cotton-
seed meal, where the present tax of ten cents per
ton must be paid; whereupon it shall be the duty
of the commissioner of agriculture to issue stamps
to the party applying, who shall attach a stamp to
each bag, barrel, or package thereof, which, when
attached to said package, shall be prima facie evi-
dence that the seller has complied with the require-
ments of this Article. Any stamps left in the pos-
session of the manufacturer, manipulator, im-
porter, jobber, or agent, may be used another
season.
For similar provision with respect to fertilizers, see § 1793.
ARTICLE 7.
Standards of Purity to be Fixed.
§ 2115. Commissioner to fix standards. — It shall
be the duty of the commissioner of agriculture and
the State chemist to fix standards of purity for
food products, where the same are not fixed by
this Chapter, in accordance wTith those promulgated
by the secretary of agriculture, the secretary of the
treasury, and the secretary of commerce and labor
of the United States, when such standards have
been published; and when not yet published, the
commissioner of agriculture and the State chemist
shall fix such standards, provided that the standards
]
§ 2116
SANITATION OF FOOD PLACES
§ 2119(3)
for lard, mixed edible fats, and cottonseed oils are
hereby defined as follows: Lard is hereby defined
to be the fat of freshly slaughtered swine. It must
not 'be made from a diseased animal, or any por-
tion of an animal unfit for food, or contain less
than ninety-nine per cent, of pure fat. A mixed
edible fat is defined to be a mixture which contains
not less than ninety-nine per cent, of sweet mixed
fat, and may consist of a mixture of refined cotton-
seed oil or other edible vegetable oils with sweet
beef fat or other edible animal fat, and must be sold
under a registered or proprietary brand and prop-
erly labeled with a distinctive trade-mark or name
bearing the name of the manufacturer. Edible
cottonseed oil is hereby defined as refined cotton-
seed oil, free from disagreeable taste or odors.
White cottonseed oil for edible purposes is cotton-
seed oil which has been refined in such a manner
as to be nearly colorless, flavorless, and odorless.
Winter cottonseed oils for edible purposes are those
from which a portion of the stearine has been re-
moved. They may be either white or yellow.
Whenever the State chemist may find, by analysis,
that adulterated, misbranded, or imitation drugs,
liquors, or food products have been manufactured
for sale or put on sale in this State, he shall forth-
with furnish a certificate of analysis to that effect to
the commissioner of agriculture, who shall trans-
mit the same to the State solicitor in the county
where the said adulterated, misbranded, or imita-
tion drug, liquor, or food product was found. It
shall be the duty of the State solicitor to prosecute
all persons violating any provisions of this Article,
as soon as he receives the evidence transmitted by
the commissioner of agriculture. Acts 1906, p. 83.
For provisions on misbranding, see §§ 2102-2104.
ARTICLE 8.
When Dealer Is Protected.
§ 2116. Dealers, how protected. — No dealer shall
be prosecuted under the provisions of this Chapter
when he can establish a guaranty signed by the
wholesaler, jobber, manufacturer, or other party
residing in this State, from whom he purchases
such articles, to the effect that the same is not
adulterated or misbranded within the meaning of
this Chapter, designating it. Said guaranty, to
afford protection, shall contain the name and ad-
dress of the party making the sale of such articles
to such dealer, and in such case the said party shall
be amenable to the prosecutions, fines, and other
penalties which would attach, in due course, to the
dealer under the provisions of this Article. Acts
1906, p. 83.
As to provision making misbranding a crime, see § 2101.
§ 2117. Prosecutions. — Any article of food, drug,
or liquor that is adulterated or misbranded within
the meaning of this Chapter shall be liable to be
proceeded against in any court within the county
where the same is found, and seized for confisca-
tion by a process of libel for condemnation. And
if such article is condemned as being adulterated or
misbranded, or of a poisonous or deleterious
character, within the meaning of this Chapter, the
same shall be disposed of by destruction or sale, as
ARTICLE 9.
Sanitation of Food Places.
§ 2119(1). Places used for sale, manufacture,
etc., of food. — Every place occupied or used for
the preparation for sale, manufacture, packings
storage, sale or distribution of any food shall be
properly lighted, drained, ventilated, screened and
conducted with strict regard to the influence of"
such conditions upon the health of operatives, em-
ployees, clerks or other persons therein employed,,
and the purity and wholesomeness of the foods,
therein produced. Acts 1914, p. 134.
§ 2119(2). Officers to make rules, etc.; penalty
for violation. — The Commissioner of Agriculture^
State Veterinarian and State Chemist are hereby
authorized and directed to make and cause to be
published such sanitary rules and regulations as,
are necessary in food inspection and to carry out
the provisions of this Act, and any person, or per-
sons or associations violating the provisions of
this Act, or any of the rules and regulations made
or published under the provisions of this Act, shall'
upon conviction be fined in a sum not exceeding
one hundred dollars. Acts 1914, p. 134.
§ 2119(3). Supervision of state veterinarian over
slaughter house, dairies, etc.; report and statistical
bulletin. — The State Veterinarian of the Depart-
ment of Agriculture shall assume supervision and
control over the sanitary conditions of all slaughter
houses, meat and meat food products, dairies, milk
depots, milk and its by-products in the State of
Georgia, under the provisions of this Act, and such-
rules and regulations as shall be promulgated by
him and approved by the Commissioner of Agri-
culture; Provided, that no rule shall be adopted in
the supervision of slaughter houses to prevent the
carrying into and reception in such houses of
cattle infected with ticks intended for slaughter ex-
cept in counties where the work of tick eradication,
the court may direct, and the proceeds thereof, if
sold, less the legal costs and charges, shall be paid
into the treasury of the State, but such goods shall
not be sold in any jurisdiction contrary to the pro-
visions of this Chapter, or the laws of that juris-
diction.
§ 2118. Reports of chemist. — The State chemist
shall make an annual report to the commissioner
of agriculture on work done in execution of this
Chapter, which report may be included in that now
made on commercial fertilizers, and published
therewith.
§ 2119. Appropriation. — In order to enforce and
carry out the provisions of this Chapter, the sum
of ten thousand dollars, or so much thereof as may
be necessary, is hereby appropriated and set aside
out of the fees arising from the inspection and
analysis of fertilizers, and so much thereof as is
necessary is made immediately available. The pro-
ceeds arising from the fees of this office shall be
turned into the treasury for the use of the common-
school fund of the State,
As to expenses of collection, see § 1795.
[478]
§ 2119(4)
SANITATION OF FOOD PLACES
§ 2119(8)
is in progress or where the work is completed and
the county released from quarantine. As far as
practical, the standards recognized and approved
by the United States Department of Agriculture
for such meat and meat food products, milk and
milk food products shall be adopted. The neces-
sary expense incurred in the enforcement of this
Act shall be paid from the fees arising from the in-
spection of food. It shall be the duty of the State
Veterinarian to employ competent assistants of un-
impeachable character, reputation for integrity and
fitness for service to carry into effect the provisions
of this Act. The State Veterinarian shall annually
render a detailed report to the Commissioner of
Agriculture of conditions found upon inspection,
and he shall issue a statistical bulletin showing the
conditions of the dairies and meat markets as far as
they relate to the production of home supplies;
such report may be published jointly with the re-
port of the State pure food inspector and shall be
published for free public distribution. Acts 1914, p.
148.
As to the penalty of the violation of this act, see § -153
(3) P. C.
§ 2119(4). Unlawful to sell certain meat for
food; unsanitary conditions. — It shall be unlawful
for any person or persons, firm or corporation, to
sell within this State or to have in his or their pos-
session to sell 'within this State, for human food,
the carcasses or parts of carcasses of any animal
which has been slaughtered, prepared, handled or
kept under unsanitary conditions, and unsanitary
conditions shall be deemed to exist wherever and
whenever any one or more of the following condi-
tions appear or are found, to-wit. :
If the slaughter house is dilapidated or in a state
of decay, if the floors or side walls are soaked with
decaying blood or other animal matter, if efficient
fly screens are not provided, if the drainage of the
slaughter house or slaughter house yard is not
efficient, if maggots or filthy pools or hog wallows
exist in the slaughter house yard or under the
slaughter house, if the water supply used in con-
nection with the cleaning or preparing is not pure
and unpolluted, if hogs are kept in the slaughter
house yard or fed therein on animal offal, or if the
odors of putrefaction plainly exist therein, if
carcasses or parts of carcasses are transported from
place to place when not covered with clean white
cloths or if kept in unclean, bad smelling refrigera-
tors, or if kept in unclean bad smelling cold storage
rooms. Acts 1914, p. 148.
§ 2119(5). Inspection of meat. — It shall be the
duty of the State Veterinarian to install an adequate
system of meat inspection at any time and in such
places as public welfare may demand, under rules
and regulations which shall provide ways and means
for shipping home-grown and home-killed meats in-
to any city in Georgia. As far as practical the rules
established under this Act shall conform with the
meat inspection requirements of the United States
Bureau of Animal Industry, as far as practical
conform to this Act and to the meat and milk in-
spection requirements of the United States Bureau
of Animal Industry. Acts 1914, pp. 148, 149.
§ 2119(6). Inspection of dairies, etc.; samples
for analysis. — The State Veterinarian at such time
as he may deem proper shall cause to be inspected
all places where dairy products are made, stored
or served as food for pay, and all places where
cows are kept by persons engaged in the sale of
milk or cream, and may require the correction of
all unsanitary practices found therein. He may take
samples anywhere of any dairy products or imita-
tions thereof, and cause same to be sent to the
State Chemist for analysis or bacteriological tests;
such analyses or tests shall be recorded and pre-
served as evidence, and when sworn to by such
chemist shall be prima facie evidence of guilt in
all prosecutions under this Act. In the perform-
ance of their official duties the State Veterinarian
or any duly accredited representative of his, acting
for him, is hereby authorized and empowered to
enter, during business hours, any slaughter house,
meat market, dairy, creamery, butter and cheese
factory, milk depot, or any other place or places
where meat and meat food products, dairy and dairy
products are sold or kept for sale, or any railroad
cars, wagons, boats or other vehicles used in the
transporting of such products. Acts 1914, pp. 148.
150.
§ 2119(7). Statistics of home supply of meat,
dairy products, etc. — The State Veterinarian shall
devise some system by which accurate statistics
regarding the home supply of meat and meat food
products, dairies and dairy products can be cor-
rectly ascertained, and for that purpose he is
authorized to require every owner, agent or man-
ager of every public dairy, creamery, butter and
cheese factory, milk depot and other places where
dairy products are sold or kept for sale, to report
annually on or before September 1st of each year
ending July 1st, on blanks furnished by State
Veterinarian, full and accurate information con-
cerning the quantity of milk or cream bought,
sold or used, the average price paid for same, the
number of cows used in or contributing to the
operation of such creameries, dairies or factories,
and the number, name and address of the patrons
of creameries, public dairies or milk depots, and
the number of cows owned or milked by each said
patron and the number of gallons of milk sold to
such creamery, public dairy, milk depot and other
milk-distributing places. In like manner record
shall be kept of the slaughter of all animals in this
State, and whether or not such animals originated
in this State or were shipped here for slaughter,
and the amount of dressed meat and meat food
products shipped into this State annually. Acts
1914, pp. 148, 151.
As to the penalty for the violation of this act, see §
453 (2) P. C.
§ 2119(8). Municipalities not hindered; ordi-
nances not to conflict herewith. — Nothing in this
Act shall prevent the governing authority of any
municipal corporation from enacting ordinances
providing for the inspection of meat markets,
meats and meat food products, dairies and dairy
products sold within its limits, and to affix penal-
ties for violation thereof, but no such ordinances
shall conflict with any power or authority of the
State Veterinarian or his subordinates. Acts 1914.
pp. 148. 151.
[ 479 ]
§ 2120
HORTICULTURE AND POMOLOGY
§ 2128
CHAPTER 4.
Horticulture and Pomology.
§ 2120. State board of entomology. — The com-
missioner of agriculture and two members to be
appointed by the Governor shall constitute the
State Board of Entomology; one of the members
to be appointed by the Governor shall be engaged
in practical horticulture, and the other in practical
farming or be closely identified with practical
agriculture. One shall be appointed for a period
of six years and the other for a period of four
years; and upon the expiration of their terms of
office, each shall be appointed for a term of six
years. The commissioner of agriculture shall be
chairman of this board; and said board shall have
full power to enact such rules and regulations
governing the inspection, certification, sale, tran-
sporation, and introduction of trees, shrubs, cut-
tings, buds, vines, bulbs, and roots, that they may
deem necessary to prevent further introduction,
increase, and dissemination of insect pests and
plant diseases; and shall also have power to con-
duct experiments for control of seriously injurious
insects and diseases. Acts 1897, p. Ill; 1898, p. 94;
1900, p. 89; 1904, p. 19; 1905, p. 108; 1908, p. 69;
1916, p. 41.
Cross References. — For similar provision in penal code,
see P. C, § 479. As to duties of commissioner of agriculture
in this respect, see § 2068 (3) -(5). As to appropriation for
work, see § 2141 (1).
Editor's Note. — This section and the section next fol-
lowing were amended entirely by the act of August 16, 1916
(Acts 1916, p. 41). The effect of the amendment was to
give the governor discretionary power in the appointment
of the two members of the board to serve with the com-
missioner of agriculture and to limit the terms of the
members of the board. The amendment also enlarged the
powers of the board and provided that the state entomol-
ogist be elected by the board instead of being appointed
by the commissioner of agriculture.
§ 2121. State entomologist; qualifications, duties,
etc. — The State Entomologist elected by the State
Board of Entomology, shall be a man of good
training and experience in entomology, and shall
also have received training in plant pathology, and
be familiar with . the various diseases affecting
plant life of the State. He shall be secretary for
the Board of Entomology, and be required to give
a surety bond sufficient to cover the amount on
hand at any one time, and shall act as inspector
under the provisions of this Act. It shall be the
duty of said board to promulgate rules and regula-
tions in accordance with this Act for the govern-
ment of said Entomologist, and the duties devolv-
ing upon him in the execution of this Act. Acts
1898, p. 94; 1916, p. 41.
See note to preceding section.
§ 2122. Salary of entomologist. — The salary of
the State entomologist shall be three thousand
dollars per annum. Acts 1904, p. 19; 1908, p. 69;
1911, p. 43.
As to appropriation for work, see § 2141 (1).
Editor's Note — The amending act of 1911 (Acts 1911, p.
43) had the effect of increasing the salary of the state
entomologist from $2000.00 to its present figure.
§ 2123. Duty of inspector, appeal to the board.
— The entomologist shall have power, under the
regulations of the board of control, to visit any
section of the State where such pests are supposed
to exist, and shall determine whether any infested
trees or plants are worthy of remediable treatment
or shall be destroyed, and he shall immediately re-
port his findings in writing, giving reasons there-
for, to the owner of the infested plantation, his
agents or tenants, and a copy of each report shall
also be submitted to the said board. In case of
objections to the findings of the inspector an ap-
peal shall be made to the said board, who shall
have the power to summon witnesses and hear
testimony on oath, and whose decision shall be
final. An appeal must be taken within three days,
and shall act as a stay of proceedings until it is
heard and decided. Acts 1898, p. 94.
§ 2124. Treatment prescribed by inspector. —
Upon the findings of the inspector in any case of
infested trees or plants, the treatment prescribed
by him shall be executed at once (unless an appeal
is taken) under his supervision; cost of material
and labor shall be borne by the owner: Provided,
however, that in case the trees or plants shall be
condemned, they shall be destroyed by the inspector
and the expense of such action shall be borne b}'
the owner. No compensation shall be allowed for
any plants that shall be destroyed.
§ 2125. When there is a refusal to execute
directions. — In case any person or persons refuse
to execute the directions of the inspector or of the
said board after an appeal, the county judge, or
ordinary, shall, upon complaint filed by the in-
spector or any freeholder, cite the person or per-
sons to appear before him within three days notice
after being served; and the said judge or ordinary
may hear and determine all these cases in vacation,
and, upon satisfactory evidence, shall cause the
prescribed treatment to be executed, and the ex-
pense thereof and costs of court shall be collected
from the owner or owners of the infested plants.
§ 2126. The board of control not to be ob-
structed.— The board of control, its agents, or
employees are hereby empowered with authority
to enter upon any premises in discharge of the
duties herein prescribed. Any person or persons
who shall obstruct or hinder them or their agents
in the discharge of these duties shall be guilty of a
misdemeanor.
As to penalty, see P. C, § 482.
§ 2127. Prevention of introduction of pests. —
The board shall also have power to adopt rules and
regulations, not inconsistent with the laws and
Constitution of the State and the United States,
for preventing the introduction of dangerously in-
jurious crop pests from without the State, and for
the governing of common carriers in transporting
plants liable to harbor such pests to and from the
State, and such regulations shall have the force of
laws.
§ 2128. Unlawful to ship without inspection. —
It shall be unlawful for any grower, nurseryman,
or corporation to ship within the State any trees,,
shrubs, cuttings, vines, bulbs, roots, without hav-
ing been previously inspected by either a State or
experimental station entomologist or government
officer within twelve months of the date of said
shipment, and certificate of inspection to accom-
pany each box or package. Violation of this clause
will be a misdemeanor.
As to penalty, see P. C, § 479.
[ 480 ]
§ 2129
HORTICULTURE AND POMOLOGY
§ 2137
§ 2129. Quorum, duties of the board. — The
members of the board, any two of whom shall con-
stitute a quorum in the absence of the third, shall
promulgate through the press of the State the
rules and regulations necessary to carry into full
and complete effect the provisions of this Chapter,
carefully defining what diseases or maladies, both
insect and fungus, shall constitute infestation in
trees or plants within the meaning and purview
hereof.
§ 2130. Annual inspection. — Any person resid-
ing in this State, dealing in or handling trees, etc.,
shall be compelled to have his stock inspected
annually on or before the first of November of
each year. If, upon such inspection, such stock
is found to conform to the requirements of the
board of control, the inspector shall furnish a
certificate to that effect. And any such person
making a shipment before the filing of such certifi-
cate with the chairman of the 'board of control
shall be guilty of a misdemeanor.
As to penalty, see P. C, § 480.
§ 2131. Certificate of inspection to be filed. — A
non-resident of this State, dealing in or handling
trees, plants, cuttings, vines, shrubs, bulbs, and
roots in this State shall register his name or firm
and file a copy of his or its certificate of inspec-
tion, furnished -by the entomologist, fruit inspector,
or duly authorized government official of his
State or country, with the chairman of the board
of control. Upon failure so to do said stock shall
be liable to confiscation under order of the in-
spector.
§ 2132. Duty of board and inspector. — When
two reputable citizens of any county shall notify
the board, from belief, that noxious insect or
plant diseases exist in their county, the said in-
spector shall be directed to ascertain as speedily
as possible by personal investigation and in such
other manner as he may deem expedient, the ex-
tent of the infection, and shall act with all due
diligence to suppress and eradicate the said pests,
and give notice to the owner, tenant, or agent of
such premises to treat such infected plants ac-
cording to the methods he may prescribe, or de-
stroy them within ten days from date of such
notice and if after the expiration of such period
of ten days the infested plants have not been
treated or the treatment has not been properly
applied or is not effectual in ridding plants of
the pests, the inspector shall cause such plants
to be properly treated or destroyed as in his
judgment warrants. The cost of the work shall
Oe covered by execution from the owner of the
premises.
§ 2133. Inspector to make report. — It shall be
the duty of the inspector to make a monthly re-
port of his work, both as entomologist and in-
spector, to • the board of control as well as the
expenditure under this Chapter; and said board
shall report annually to the Governor of the
State.
§ 2134. Unlawful to bring Mexican boll-weevil
into this State. — It shall be unlawful for any
person to knowingly bring into this State any
living Mexican boll-weevil, or any cotton bolls,
plants, squares, or seeds containing the adult,
pupal, larval, or egg stage of said weevil, unless
the person shall immediately upon its discovery
destroy it or turn it over to the State entomolo-
gist. Violation of this section shall be a misde-
meanor. Acts 1904, p. 19.
As to penalty, see P. C, § 483.
§ 2135. Cotton products from places where
boll-weevil exists. — No articles from sections of
country known to be infested with Mexican cot-
ton boll weevil shall be brought into this State
except in accordance with rules and regulations
enacted by State Board of Entomology, and
when State of Georgia becomes infested with
Mexican cotton boll weevil, no articles liable
to contain boll weevil shall be carried from in-
fested to non-infested areas except under rules
and regulations enacted by said Board. It shall
be the duty of the State Board of Entomology
to define what articles are liable to contain boll
weevils and to make rules and regulations con-
cerning the shipments of such articles and to
notify transportation companies of such rules
and regulations.
Any steamship, railroad or express company
or other common carrier or any firm, person or
corporation bringing into this State any of the
articles without complying with the rules and
regulations enacted by State Board of Entomo-
logy, shall be deemed guilty of a misdemeanor.
In case any common carrier enumerated violates
this section, then the general manager of such
common carrier, or the captain of such offend-
ing vessel, shall be guilty of a misdemeanor.
Acts 1913, p. 46.
As to penalty, see P. C, § 483.
Editor's Note. — This section and the section next follow-
ing were amended in 1913 (Acts 1913, p. 46) to make more
effective the provisions relating to the fight on the Mexi-
can cotton boll weevil. More regulatory power was given
to the state board of entomology.
§ 2136. Certain other importations prohibited.
— No corn in the shuck or shipments of house-
hold goods, furniture, machinery, glass-ware or
supplies of any description which are packed or
partially packed in or with any materials or ar-
ticles which are liable to contain Mexican cot-
ton boll weevils shall be shipped from territory
known to be infested with this insect or from an
infested to a non-infested part of the State,
when the boll weevil appears in Georgia, except
in accordance with rules and regulations enacted
by State Board of Entomology. Acts 1905, p.
108; 1919, pp. 46, 48.
See note to preceding section.
§ 2137. Transportation companies. — Transpor-
tation companies shall immediately notify the
State entomologist when, by oversight, negli-
gence, or otherwise, and shipment of the nature
designated in the two preceding sections, with-
out a proper certificate attached, shall arrive at
any station or wharf in this State; and it shall
be his duty to proceed as speedily as possible, by
himself or assistant, to investigate such ship-
ment. If, upon investigation, he finds the ship-
ment to be of the nature herein designated, he
shall order same removed from this State. Upon
failure of the owner or shipper to remove same
within forty-eight hours after notice has been
sent him by wire, said shipment shall be seized
and burned. Acts 1904, p. 19.
Ga. Code— 16
[481]
§ 2138
REGULATION OF HONEY BEES
§ 2141(3)
§ 2138. Powers and duties of entomologist. —
The State entomologist and his assistants shall
have authority to enter, during reasonable busi-
ness hours, any depot, warehouse, freight, wharf,
transfer, steamship, or express office in this
State, and shall be allowed full access to all
waybills, books, invoices, and bills of lading
therein when he or they may deem it necessary
to determine the presence or record of any ship-
ment of the nature designated in sections 2127
and 2128. The State entomologist and his as-
sistants shall have authority to enter at any time,
for the purpose of inspecting shipments therein,
or for determining the nature of shipments
therein, any express car or steamship when same
is in transit or lying at dock or depot in charge
of any employee or official of the company own-
ing or operating same. Agents and employees
of railroads shall be required to open for inspec-
tion any car, sealed or unsealed, at any siding,
freight-yard, or depot in this State, when so or-
dered by the State entomologist or his assistant.
Any person who shall refuse to comply with the
instructions of the State entomologist or his as-
sistants, as herein specified, or who shall offer
any hindrance, or shall obstruct the State ento-
mologist or his assistants in the discharge of
their duties as herein specified, shall be guilty
of a misdemeanor.
As to penalty, see P. C, § 482.
§ 2139. Entering premises for inspection and
proceeding. — The State entomologist himself, or
assistants, shall have power to enter during or-
dinary business hours any premises, depot, ware-
house, cotton-mill, oil-mill, or other building or
place in this State where agricultural products
are, or are supposed to be, for the purpose of in-
specting and determining whether any boll-wee-
vils, are there present. In case of finding any ma-
terial therein infested with the boll-weevil he
shall at once give instructions to the owner,
agent, or tenant thereof to destroy, fumigate, or
treat such infested material in such manner as in
his judgment he may deem best. But in the
event said material shall be ordered destroyed,
the owner shall be compensated as now provided
by law in cases where property is condemned
for public use. Failure of the agent, owner, or
tenant to comply with said directions (unless an
appeal be taken as provided for in this Chapter),
or the removal of said infested material, or any
part thereof, from the premises, shall be a mis-
demeanor.
§ 2140. Entomologist to deliver lectures. — The
State entomologist, or one of his assistants, shall
attend the farmers' institutes, and other State
agricultural societies held in this State, for the
purpose of delivering lectures on injurious insect
and plant diseases, for the purpose of dissemi-
nating more fully the information obtained by
his department among the agricultural classes of
the State, whenever it is possible for the State
entomologist or his assistant to attend such
meetings.
§ 2141. Entomologist to investigate diseases of
cotton plant. — It shall be the special duty of the
State entomologist to thoroughly investigate the
cause of the disease of the cotton plant known
as "wilt" or "black root," and other similiar di-
seases, and make such experiments as in his judg-
ment and discretion may be necessary to find a
remedy therefor to be furnished to the farmers
of the State, and for other purposes.
§ 2141(1). Appropriation; purposes stated. —
For the maintenance of the Department of Hor-
ticulture and pomology and the Board of Ento-
mology, for the employment of assistant ento-
mologists, other experts, inspectors and field men,
whose compensation shall be fixed by the State
Board of Entomology, for the payment of travel-
ing expenses, equipment and maintenance ol
laboratories, publication of bulletins and other
reports, for work on the control and eradication
of cotton wrilt or black root, nematode worms,
or root knot, experimental work on the develop-
ment and perfection of types of cotton that will
be better adapted to be grown under bool weevil
and wilt conditions, for conducting cotton va-
riety tests, cotton breeding to improve or de-
velop new strains of cotton better adapted to
Georgia conditions, for fertilizer tests on cotton
and other crops used in relation experiments to
determine best method of growing cotton under
boll weevil conditions and for the elimination of
the nematode worm from the soil, and for the
control or eradication of insects injurious to and
diseases affecting apple, peach, and other fruits,
cotton and other plants, for defraying all other
expenses in carrying out the provisions of the
Act of December 21, 1897, creating and estab-
lishing the department, and the Acts amenda-
tory thereof, the sum of sixty thousand ($60,-
000.00) dollars annually, or so much thereof as
may be necessary, is hereby appropriated. Act>
1918, p. 36.
§ 2141(2). Itemized statement of expenditures
and disbursements. — The State Entomologist
shall annually furnish to the General Assembly
a detailed, itemized statement of ali expenditures
and disbursements of all funds appropriated for
use by the State Entomologist or the State
Board of Entomology; and for every sum so
disbursed by the State Entomologist or the
State Board of Entomology, proper vouchers
shall be kept on file in the office of the State
Entomologist; all bills against this department
shall be audited and approved by the Commis-
sioner of Agriculture before they are paid; all
requisitions to the Governor for warrants shall
be itemized and approved Iby the Commissioner
of Agriculture before the Governor is authorized
to issue his warrants for the same. Acts 1918,
p. 36.
CHAPTER 5.
Regulation of Honey Bees.
§ 2141(3). Certificate of inspection; permits
for shipment. — All honey bees shipped or moved
into the State of Georgia, shall be accompanied
by a certificate of inspection signed by the State
Entomologist, State Apiary Inspector, or cor-
responding official of the State or county from
which such bees are shipped or moved. Such
certificate shall certify to the apparent freedom
of the bees, and their combs and hives, from con-
tagious and infectious diseases, and must be
[ 482 ]
§ 2141(4)
GEORGIA COASTAL PLAIN EXPERIMENTAL STATION
§ 2141(10)
based upon an actual inspection of the bees
themselves within a period of sixty days pre-
ceding the date of shipment; provided, that
when honey bees are to be shipped into this
State from other States or counties wherein no
official Apiary Inspector or State Entomologist
is available the State Board of Entomology of
the State of Georgia, through its chief executive
officer, may issue permits for such shipment, up-
on presentation of suitable evidence, showing
such bees to be free from diseases, and, provided
further, that the provisions of this section shall
not apply to shipments of live bees in wire cages,
when without combs or honey. Acts 1920, pp.
160, 161.
As to the penalty for the violation of this act, see §
483 (2) P. C.
§ 2141(4). Powers of Entomology Board. —
The State Board of Entomology of the State of
Georgia, created by Section 2120 of this Code,
shall have full and plenary power to deal with
the American and European foul brood, Isle of
Night disease, and all other contagious and in-
fectious diseases of honey bees which, in its
opinion may be prevented, curtailed or eradi-
cated; and shall have full power, and is hereby
authorized to make, promulgate and enforce
such rules, ordinances and regulations, and to
do and perform such acts, through its agents or
otherwise, as in its judgment may be necessary
to curtail, eradicate or prevent the introduction,
spread or dissemination of any and all conta-
gious diseases of honey bees, and as far as may
be possible, and all such rules, ordinances and
regulations of said State Board of Entomology
shall have the force and effect of law. Acts
1920,' pp. 160, 162.
§ 2141(5). License of owners. — All persons,
firms or corporations desiring to carry on a busi-
ness of the sale of Bees, Queens, Nuclei, and
etc., shall be required to apply to the Georgia
State Board of Entomology for a license so to
do, and to accompany such application with a
fee of $25.00; upon receipt of the same, the State
Board of Entomology, upon investigation of the
party so applying, and at their discretion, shall
issue a license to the same. Said license to be
revoked by the State Board of Entomology at
any time said person, firm, or corporation shall
fail to comply with this law or to carry out the
rules and regulations established by the Georgia
State Board of Entomology. All fees collected
in this manner shall be turned over to the State
Treasury. Any person, firm or corporation at-
tempting to do business without such license, or
after such license has been revoked, shall be
guilty of a misdemeanor, and upon conviction
thereof, shall be punished as such. Acts 1921,
pp. 260, 261.
As to the penalty for the violation of this act, see §
483 (1) P. C.
§ 2141(6). Inspection; removal of infected
bees, etc. — The State Board of Entomology of
the State of Georgia, its agents and emplo3^ees,
shall have the authority to enter any depot, ex-
press office, store room, warehouse or premises
for the purpose of inspecting any honey bees or
bee-keeping fixtures or appliances therein for the
purpose of ascertaining whether said bees or
fixtures are infected with any contagious or in-
fectious diseases, or which they may have any
reason to believe have been or are being trans-
ported in violation of any of the provisions of
this Act.
The said Board, through its agents or employ-
ees, may require the removal from this State of
any honey bees or beekeeping fixtures which
have been brought into the State in violation of
the provisions of this Act, or if finding any bees
or fixtures infected with any contagious or in-
fectious disease, or if finding that such bees or
fixtures have been exposed to danger of infec-
tion by such diseases, may require the destruc-
tion, treatment or disinfection of any such in-
fected or exposed bees, hives, fixtures or appli-
ances. Acts 1920, pp. 160, 162.
§ 2141(7). Second-hand equipment. — The ship-
ment or movement into this State of any used
or second-hand beehives, honey combs, frames,
or other beekeeping fixtures is hereby prohibited
except under such rules and regulations as may
be prescribed by the State Board of Entomology
in accordance with Section 2141(4). Acts 1920,
pp. 160, 162.
CHAPTER 6.
Georgia Coastal Plain Experimental Station.
§ 2141(8). Establishment of station and farm.
— An agricultural experiment station and ex-
periment farm, to be known as the Georgia
Coastal Plain Experiment Station, -be and the
same is hereby created and established in and
for the coastal plain region of the State of Geor-
gia for the purpose of making scientific investi-
gation and experiment respecting the principles
and applications of agricultural science, and
more particularly as the same may be affected
by soil and climatic conditions in said coastal
plain region of the State. Acts 1918, p. 158.
§ 2141(9). Board of trustees designated; su-
perintendent and officers. — The said Geotrgia
Coastal Plain Experiment Station shall be under
the general control and direction of a board of
trustees, to consist of the Governor of said State,
and the Commissioner of Agriculture of said
State and seven other men to be appointed by
the Governor from the coastal plain section of
said State, and said board of trustees shall ap-
point the superintendent and other officers for
said station, prescribe their powers and duties
and fix their salaries or compensation. Acts
1918, pp. 158, 159.
§ 2141(10). Selection of location; donations;
conveyances of title; report. — The said board
of trustees are hereby authorized and directed
to select a location for the said station in the
following manner, to-wit: Within sixty days
after the approval of this Act the board of trus-
tees of said Georgia Coastal Plain Experiment
Station shall give notice by publication once a
week for eight weeks in at least six newspapers
having a general circulation in the coastal plain
region of this State, that said board will receive
bids for proposals from counties, cities , towns,
communities or persons, to donate lands and
buildings, or lands and money, or money, for
[483]
§ 2141(11)
BUREAU OF MARKETS
§ 2141(13)
the purpose of inducing the establishment at a
given point in the coastal plain region of the State,
of said Georgia Coastal Plain Experiment Sta-
tion and Experiment Farm. In selecting a site
for said station, the board shall have reference
to the accessibility of the place offered, the
healthfulness of the locality and the adaptabil-
ity of the land to represent the variety of the
soils in said portion of the State known as the
coastal plain, and also that the place has a cli-
mate best representative of the climatic condi-
tions of the coastal plain region of the State.
The board shall dispose of all the questions in-
volved in the proposals that may be made, as
their judgment may dictate to be for the best
interests of the State. The board's choice shall
be communicated to the Governor, and the nec-
essary papers shall be drawn and duly recorded
in the deed records of the county where the land
lies, and also in the office of the executive depart-
ment of the State, and then filed in said office. The
property which may come into the possession of
the board under the terms of this section shall
be the property of the State of Georgia. That
said board of trustees shall report to the next
session of the Legislature their acts and doings
in locating and directing said experiment sta-
tion. Acts 1918, p. 159.
CHAPTER 7.
Bureau of Markets.
§ 2141(11). Bureau of markets created. — For
the purpose of promoting proper, sufficient and
economical handling, packing, transporting,
storage, distribution, inspection and sale of ag-
ricultural products of all kinds within this com-
monwealth, and for the further purpose of
assisting producers and consumers thereof in
selling and purchasing the same under fair con-
ditions, and at fair and reasonable prices, there
is hereby created within the Department of Ag-
riculture a Bureau of Markets. Acts 1917, pp.
77, 78.
§ 2141(12). Director; appointment, term, sal-
ary, and expenses; assistants. — The commis-
sioner of Agriculture shall appoint a director of
markets (hereinafter called the director), who
shall be qualified for the performance of his
duties under this Act by practical training and
experience. He shall be appointed for the term
of two years and shall devote his entire time to
the duties of his office and shall receive the sum
of three thousand dollars ($3,000.00) per annum
for his services, and also be allowed his neces-
sary transportation expenses actually incurred
in the performance of his duties, itemized, ac-
companied by proper vouchers.
The Commissioner of Agriculture is hereby
authorized to appoint such competent and ex-
perienced persons to assist the director and such
clerical and other assistants as may be necessary
to carry out the intent of this Act, who shall
serve at the pleasure of the Commissioner of
Agriculture and shall receive such compensation
for their services as he and the director shall de-
termine, provided that all expenditures under
this section shall be accompanied by proper
vouchers and upon itemized statements approved
by the director. Acts 1917, pp. 77, 78.
§ 2141(13). Duties of director; investigations;
information; publications; co-operation; advice
and assistance; prevention of waste and other
measures. — The director shall be the chief executive
officer of the Bureau of Markets and it shall be
his duty to organize said bureau and in co-oper-
ation with the Commissioner of Agriculture to
plan and formulate the work to be done and
carry out the provisions of this Act and he shall,
(a) Investigate methods and practices in con-
nection with the production, handling, standard-
izing , grading, classifying, sorting, weighing,
packing, transportation, storage, inspection and
sale of agricultural products of all kinds within
this commonwealth and all matters relevant
thereto.
(b) Gather, formulate, and disseminate in-
formation in such form and at such time as he
shall deem advisable relating to matters men-
tioned in subsection (a) hereof in all their phases
and by correspondence, publication, advice, ex-
perimentation or by any other practical means
shall keep producers, purchasers, and consumers
informed of the supply and demand of all such
products and of the markets at which the same
can be best and most efficiently and most eco-
nomically sold or procured.
(c) Publish periodical bulletins setting forth
the current market prices for all such products
in the several places of principal market there-
for within the State and elsewhere, and so far as
practicable data regarding the available supplies
thereof and the demand therefor in said places.
(d) Ascertain sources of supply of all such
products and prepare and publish from time to
time lists of the names and addresses of pro-
ducers and consignors thereof and furnish the
same without charge to persons applying there-
for.
(e) Secure in the performance of the duties of
his office the co-operation and assistance of the
office of Markets of the Department of Agricul-
ture of the United States, similar office, bureau
or department of other States, and of the Geor-
gia State College of Agriculture or of any other
organization that may be of assistance therein.
(f) Assist and advise in the organization and
the conduct of co-operative and other associa-
tions for improving relations and services among
producers, distributors and consumers and meth-
ods and practices in connection with the several
matters mentioned in subsection (a) hereof, and
all matters relevant thereto.
(g) Investigate delays, embargoes, condi-
tions, practices, charges, and rates in the trans-
portation and handling of all such agricultural
products, and when the same may be warranted
in his opinion may cause such proceedings to be
instituted before the proper authority or other
tribunals as may be necessary to improve and
adjust the same when he shall deem it advisable,
may cause to be instituted proper proceedings to
unlawful combinations or agreements in restraint
of trade, or for fixing prices, provided that all
costs incurred under this paragraph shall be paid
from the funds hereby appropriated and no one
under this Act has authority to create any further
liability against the State, the Department of
[484]
§ 2141(14)
STATE BOARD OF GAME AND FISH
§ 2158(4)
Agriculture or Market Bureau, established by
this Act.
(h) Whenever it shall appear that any agri-
cultural products are liable to spoil or waste or
depreciate in value for lack of ready market, take
such steps as may be deemed advisable, to bene-
fit the producers, distributors and consumers
thereof, and to prevent waste.
(i) Take such other measures as shall be
proper for carrying out the purposes of this Act,
provided that in carrying out the provisions of
this Act there shall be no trespassing on the ed-
ucational or instructional work of the State Ag-
ricultural College, or extension work, as pro-
vided for under the Federal Smith-Lever Act.
Acts 1917, pp. 77, 78.
§ 2141(14). Standards, grades, and classes. —
The director shall likewise formulate and an-
nounce proper and fair standards, grades and
classes, for and among agricultural products of
all kinds, and may modify or supplement the
same from time to time, and shall recommend
the same to co-operative and other like associa-
tions of producers, distributors and vendors
thereof as the standards, grades, or classes to be
adopted in marketing the same. Acts 1917, pp.
77, 80.
§ 2141(15). Annual reports. — The director
shall make an annual report to the Commis-
sioner of Agriculture on or before the first day
of June one thousand nine hundred and eighteen
and annually thereafter, in which shall be set
forth in detail of the work performed by the
Bureau of Markets during the preceding cal-
endar year; a statement of the plans made for
the development of the work; a detailed finan-
cial budget of receipts and expenditures and of
financial requirements of the division for the
next fiscal year; and such other matters as to
the director may appear advisable. Acts 1917,
pp. 77, 80.
S 2141(16). Bond of director. — 'Before assum-
ing the duties of the office the director shall exe-
cute and file with the Governor a good and sol-
vent bond in the sum of five thousand dollars
to be approved by said official, conditioned upon
the proper and faithful performance of the duties
of said director. Acts 1917, pp. 77, 81.
§ 2141(17). Business of buying and selling
prohibited. — The director and employees are
each prohibited, during their respective terms of
office, or employment, except for the purposes
of the division of markets, from engaging in this
State or elsewhere in the business of buying or
selling or commission dealing in farm products.
Acts 1917, pp. 77, 81.
SIXTEENTH TITLE.
State Board of Game and Fish
CHAPTER 1.
Creation of Board.
§§ 2142-2158. Repealed.
Editor's Note. — These sections were repealed by the act
of 1911, p. 137, which in turn was repealed by the act of
1924 page 101, herein codified as §§ 2158 (1) et seq.
The act of 1911 was intended to repeal all existing gen
eral, special and local law on the same subject matter.
See Hammond v. State, 10 Ga. App. 143, 72 S. E. 937.
§ 2158(1) Members, residences, terms, ap-
pointment; chairman; annual meeting; compen-
sation.— A State Board of Game and Fish is
hereby created and established, to be composed
of three members to be appointed by the Gov-
ernor, with the advice and consent of the Senate,
one of whom shall reside in the northern portion,
one in the southern portion of the State, and one
in the tidewater region of the State. One of
said members shall be appointed for a term of
two years, one for a term of four years, and one
for a term of six years, from the first day of
Janua^, 1925, and until their successors are ap-
pointed and qualified, and their successors shall
be appointed for a term of six years from the
first day of January of the year of their appoint-
ment. All vacancies shall be filled only for their
unexpired term. The Governor shall issue com-
missions to the members of the board appointed
by him, and they shall qualify by taking the oath
required of other officers of the State. Immedi-
ately after appointment and qualification the
said members shall meet and elect a chairman.
The meeting of said board shall be held annually
in the office of the board on the first Monday in
May of each year, but the chairman may call the
board into special session at any time and at any
place in the tidewater counties or elsewhere
within the State most convenient for the transac-
tion of the business to be considered. The mem-
bers of the board shall receive as compensation
ten dollars a day and expenses for each day act-
ually devoted to the service of the board. Acts
1924, p. 101.
Editor's Note. — Reference should be had to the penal
code, §§ 594 (1) et seq. for game and 595 et seq. for fish,
terrapins, etc., in connection with the following provisions.
Legislative Power to Regulate. — In the exercise of the
police power of the State, the legislature may prohibit the
killing of wild game or any traffic or commerce in it, if
deemed necessary for its preservation or protection, or for
the public good, and, to accomplish this end, may make
it criminal for any person to sell or offer for sale any of
such game, or to have in possession any such game dur-
ing the closed season, whether the game which he sells or
offers for sale, or has in his possession, was killed or taken
within or without the State. Allen v. State, 11 Ga. App.
75, 74 S. E. 706.
§ 2158(2). Meaning of "board."— For the pur-
poses cf this Act the word "board" shall mean
the State Board of Game and Fish, unless other-
wise required by the context. Acts 1924, pp.
101, 102.
§ 2158(3). Office in Capitol; powers and du-
ties.— The office of the State Board of Game and
Fish shall be in the State Capitol, and the Gov-
ernor shall make provisions therein for such
offices. The State Board of Game and Fish
hereby created shall be vested with all the au-
thority, powers, and duties now vested in the
State Department of Game and Fish. Acts
1924, pp. 101, 102.
§ 2158(4). Powers of Board as to regulations;
purchase of boats and equipment; opening and
closing lands or waters. — The Board of Game
and Fish is hereby authorized to regulate, pro-
hibit, or restrict, in time, place , character or
dimensions the use of nets, appliances, appar-
atus, and all means employed in taking or kill-
ing fish, any kind of sea-food, to regulate the
season at which the various species may be
taken in the several waters of this State, and to
[485]
§ 2158(454)
CREATION OF GAME AND FISH BOARD
§ 2158(7)
prescribe the minimum size of fish, oyster, and
other sea-food which may be taken in the said
several waters of this State, which may be
bought, sold, or held in possession by any firm,
person or corporation in this State; also to pre-
scribe and adopt forms of leases and applications
therefor, and other forms of reports and appli-
cations provided for by this act; the said board
is also authorized to purchase and hold for and
in the name of the State of Georgia such boats
and other equipment as may be necessary to
carry on the work of the department; also power
to open or close certain designated lands or
waters for hunting or taking fish and oysters
when the same is necessary for the conserva-
tion of the supply. Said board is further
authorized and empowered to employ survey-
ors and other help that may be necessary for
the purpose of surveying any of the oyster
lands in Tidewater Georgia, to be leased under
the provision of this act. All of such regu-
lations after being published once a week for
four consecutive weeks in some newspaper
of general circulation in one of the tidewater
counties of Georgia shall be recorded in the
minutes of the board and shall be of equal
force and effect with the provisions of this Act.
The board shall have power and authority to
make such rules regulating the shipment and
transportation of fish, oysters, clams, crabs,
escallops and other water products as it may
deem necessary. In making regulations the
board shall give due weight and consideration to
all the factors which will affect the right of any
individual or a present investment in fisheries,
and no change in the existing rules and regula-
tions which, if it should go into effect immedi-
ately, would tend to cause persons to sustain
loss to their property, shall go into effect until
one year from the date the change has been made
by the board. Acts 1924, pp. 101, 112.
§ 2158(454). Same — Introduction of animals;
hatcheries; expenses, etc. — The State Board of
Game and Fish is authorized and empowered to:
(1) Make the necessary rules and regulations
to carry into effect the game and fish laws of
this State.
(2) Introduce into Georgia desirable species of
birds, fish and game and fur-bearing animals and
to cause same to be distributed in such localities
as may be best suited to their habits.
(3) Establish hatcheries for the purpose of
propagating fish to be distributed in the various
streams of this State.
(4) Adopt rules and regulations concerning
the operation and management of said game pre-
serves and fish hatcheries.
(5) Set aside or close, with the consent of the
landowners, areas for use as game preserves or
refuges and to prescribe the time, method and
conditions for hunting in said areas, provided,
when such preserves are reopened for hunting
they shall be for the common use of all the people
of said State for hunting in compliance with
the game laws.
(6) To adopt any other rule or regulation hav-
ing for its purpose the conservation and propa-
gation of the fish and game of the State; pro-
vided, however, that none of the rules or regu-
lations shall in any wise conflict with the
established laws of the State, and provided fur-
ther that all monies used for the purpose of car-
rying out any of the powers vested by this section
shall be drawn from the monies actually on hand
to the credit of the Game Protection Fund and
shall in no event be a charge upon the general
Treasury of the State. Acts 1925, pp. 302, 308.
§2158(4*^). Powers of board over fishing dur-
ing spawning seasons; recommendation by
Grand Jury. — Upon the recommendation of the
Grand Jury of any county, the said Board of
Game and Fish shall have the power to regulate
or prohibit the taking of fish from any streams
or other waters of this State during any month
or months in which said fish in said waters com-
monly spawn. When such recommendation has
been made by any Grand Jury and a certified
copy thereof prepared by the clerk of the Su-
perior Court of the county in which such action
is had and transmitted to the Board of Game
and Fish, it shall be the duty of said Board and
it shall be required to immediately pass an order
carrying out the recommendation of said Grand
Jury and advise said order in the county affected
in the newspaper of general circulation therein
once a week for four weeks, and such order shall
not Ibe effective until thus advertised. The recom-
mendation of the Grand Jury as aforesaid shall
specify the period of time during which said
fishing shall be regulated or prohibited. Acts
1925, pp. 302, 308.
§ 2158(5). Hearing as to proposed changes in
regulations. — [When] a petition signed by five
or more voters of the district or community
which will be affected by the proposed changes,
is filed with the board through the Tidewater
Commissioner, they may be heard regarding the
change. The board shall in that event designate
by advertisement for a period of thirty days at
the courthouse and three other public places in
the county, and also by publication in a news-
paper in the said county, ' once a week for two
consecutive weeks, a place at which the said
board shall meet and hear argument for and
against said changes, and may ratify, rescind or
alter this previous order, as may seem just in the
premises. Acts 1924, pp. 101, 113.
§ 2158(6). "Game and fish protection" and
''coastal fisheries and fund." — All moneys collected
or derived from hunting licenses, fines for vio-
lating hunting laws and other receipts derived
from the enforcement of the laws pertaining to
game and fresh water fishing shall be kept in a
fund to be known as the game and fish protec-
tion fund; and all moneys derived from boat
license, salt water fishing, tax on sea-foods, fines,
forfeitures, lessees or other sources from Tide-
water Georgia, shall be kept in a separate fund
known as the coastal fisheries fund. Acts 1924,-
pp. 101, 115.
§ 2158(7). Funds from which expenses paid;
surplus for common schools. — All the moneys
received by the commissioner to the credit of
the game and fish protection fund shall be used
to defray the expenses of the State Board of
Game and Fish, salary of the State Commis-
sioner of Game and Fish, his incidental ex-
[486]
§ 2158(7^)
STATE COMMISSIONER OF GAME AND FISH
§ 2158(8^)
penses, the salaries and expenses of inspectors,
wardens and deputies, and for the conservation
and propagation of game and fish in Georgia,
and all other legally authorized expenses for the
year in which same is collected and the follow-
ing fiscal year, and at the end of said following
fiscal year the surplus, if any, shall be paid over
to the State Treasurer for the benefit of the
common schools of Georgia: Provided, that such
salaries and other expenses shall not be a charge
upon the State fund nor payable out of any other
fund than the monies on hand to the credit of
the game and fish protection fund. The coastal
fisheries fund shall be used to defray the ex-
penses of the State Board of Game and Fish in
Tidewater Georgia, and for the protection, pro-
pagation and distribution of sea-food during the
first year in which received and the following
fiscal year, and at the end of said fiscal year the
surplus remaining shall be paid over to the State
Treasurer for the benefit of the common school
fund of Georgia. Acts 1924, pp. 101, 115; 1925,
pp. 302, 307.
§ 2158(7%). Monies. — No monies expended
pursuant to any of the provisions of §§ 2158-
(4J4), 2158(7) and the first part of § 2158(12)
shall be a charge upon the general fund, but all
of such monies so expended shall be drawn from
any amount actually on hand to the credit of the
Game Protection Fund. Acts 1925, pp. 302,
309.
CHAPTER 2.
State Commissioner of Game and Fish. Tide-
water Commissioner. Wardens, Inspectors
and Patrolmen.
§ 2158(8). State commissioner; election; du-
ties; powers; bond. — The board shall elect a
State Commissioner of Game and Fish, who
shall be the executive officer of the board and
whose duty it shall be to see that all laws now or
hereafter enacted for the protection, propagation
and preservation of game animals, game birds,
or other wild animals or birds and fish in the
State are observed, and that violations thereof
are promptly and speedily prosecuted. He shall
also appoint one or more game and fish wardens
and deputy wardens in each of the several Coun-
ties of this State, and be vested with all the pow-
ers and authority, and do and perform each and
all duties, now vested in the State Game and
Fish Commissioner under the laws of this
State, except as herein modified or changed, un-
der the general supervision and control of the
State Board of Game and Fish hereby created
and established. Said board shall keep a record
of all its acts and doing in minute books
provided for such purpose. The State Game
and Fish Commissioner shall be ex officio Sec-
retary of said board and shall keep the
minutes and records of the board in the office of
the board in the State Capitol, which shall be
opened to public inspection like the other rec-
ords of this State; he shall also give bond in the
sum of ten thousand dollars, payable to the Gov-
ernor of the State, in same good and solvent surety
company to be approved by the Secretary of
State, for the faithful performance of the duties
of his office and a proper accounting of all
moneys that may come into his hands as said
commissioner. The premium of such bond shall
be paid out of the State game and protection
fund. He shall be commissioned by the 'Gov-
ernor and take the usual oath required of other
officers of the State. The State Commissioner
of Game and Fish shall be elected for the term
of four years and until his successor is elected
and qualified. The State Commissioner of Game
and Fish in office on the first day of January,
1925, shall be the State Commissioner of Game
and Fish under the terms of this Act until the
first day of January, 1926, at which time the
board shall elect his successor. All vacancies
shall be filled for the unexpired term. Acts
1924, pp. 101, 102.
The term of office of a county game and fish warden is
the same as that of the state game and fish commissioner,
as to its beginning and duration, under the act of 1911, p.
137. Upon the resignation of a county game warden his
successor is appointed for the unexpired term. McCIeskey
v. Zimmer, 144 Ga. 834, 88 S. E. 188.
Where there is a vacancy in the office of county game
warden, caused by the resignation of the incumbent, the
successor of the warden who has resigned holds the office
for only the rest of the unexpired term, notwithstanding it
may be recited in the certificate of appointment that he is
to hold for two years from the date of the certificate. Mc-
CIeskey v. Zimmer, 144 Ga. 834, 88 S. E. 188.
§ 2158(8%). Other duties of commissioner. —
It shall be the duty of the Game and Fish Com-
missioner, as the executive officer of the Board
of Game and Fish, to enforce all of the game and
fish laws of this state, as well as all rules and
regulations of the Board of Game and Fish. He
shall faithfully account to the Board of Game
and Fish for the operation of the affairs of the
Game and Fish Department and shall be re-
quired to make written reports to said Board,
monthly or oftener upon demand. He shall be
responsible for the conduct of all other officers
and employees of the Game and Fish Depart-
ment and such officers and employees shall at
all times be subject to his direction. Acts 1925,
pp. 339, 340.
§ 2158(8%). Further duties and powers of
commissioner; seal. — Said Commissioner shall
keep a public record correctly disclosing all
monies received and expended, the number of
hunter's licenses, the number of Wardens em-
ployed, with their names and counties in which
they serve. Also, the name of each person
prosecuted for violations of this Act, with the
amount of fines imposed and collected in each
case, and all such other information as may
be necessary to the affairs of the Department.
He shall have a seal of office. It shall be his
duty to seize or cause to be seized, game
bird or other birds, animals and fish caught
or killed at a time or in a manner, or which have
been shipped contrary to the provisions of this
Act. Such game or fish so seized shall be do-
nated to some charitable institution in this State,
except live game birds, or other birds, animals or
fish, which shall be liberated. He shall, with
Wardens and Deputy Wardens and ex-officio
Wardens, be authorized to serve all criminal proc-
ess for violations of this Act which could be
served by sheriffs and constables of this State.
Acts 1911, pp. 137, 138.
[487]
§ 2158(9)
STATE COMMISSIONER OF GAME AND FISH
§ 2158(15^)
§ 2158 (9). Tidewater Commissioner; resi-
dence; election; bond. — The State Board of
Game and Fish shall elect a Tidewater Commis-
sioner, who shall be a resident of Tidewater
Georgia, and who shall be ex officio Assistant
Commissioner of Game and Fish and shall act
in the place and stead of such Commissioner in
the case of a vacancy in such office, until such
vacancy is filled by the board. Such tidewater
commissioner shall be elected for a term expir-
ing four years from the first day of January,
1925; and until his successor is elected and quali-
fied, and his successors shall likewise be elected
for a term of four years and until a successor is
elected and qualified. The Tidewater Commis-
sioner shall give bond to the Governor of the
State in the sum of ten thousand dollars in some
good and solvent surety company to be approved
by the Secretary of State, conditioned for the
faithful performance of the duties of his office,
and a proper accounting of all moneys that may
come into his hands as such Commissioners.
The premium upon such bond shall be paid out
of the coastal fisheries fund. Acts 1924, pp. 101,
103.
§ 2158(10). Records and accounts. — The Game
and Fish Commissioner and Tidewater Com-
missioner shall keep a public record, correctly
disclosing all moneys received and expended
by them and all such other information as
may be necessary or proper in the conduct
of the affairs and business of their offices. The
books and accounts of said Commissioners
shall be audited in the same way as other
books and accounts of the other departments of
the State are audited. Acts 1924, pp. 101, 103.
§ 2158(11). Seal of office. — The Tidewater
Commissioner shall have and keep a seal of of-
fice which shall be used to authenicate all papers
and documents issued and executed by him as
such officer. Acts 1924, pp. 101, 104.
§ 2158(12). Commissioner's salary. — Said
Commissioner of Game and Fish shall receive ?
salary of Three Thousand Six Hundred Dollars
($3,600.00) to be paid monthly in equal monthly
installments to be paid out of the Game and
Fish Protection Fund, and said Tidewater Com-
missioner shall receive a salary of Three Thou-
sand Dollars ($3,000.00) per annum, payable
only out of the fund known as the Coastal Fish-
eries Fund. Acts 1924, pp. 101, 104; 1925, pp.
302, 309.
§ 2158(13). Tidewater Commissioner's power
and duties; inspectors; patrolman, etc. — The
Tidewater Commissioner shall, under the gen-
eral supervision of the State Board, have charge,
control and management of the protection, prop-
agation and distribution of food or game fish,
shell fish, and Crustacea in the following counties
in this State, to- wit: Chatham, Bryan, Liberty,
Macintosh, Glynn, and Camden, which shall be
known as Tidewater Georgia; he shall have the
conduct, control and management of all hatch-
ing and biological stations owned and operated,
or that are hereafter acquired by the State in
such Counties; he shall have charge of the en-
forcement of all laws for the protection of fish,
shell-fish and Crustacea, and lands under water
which shall be or have been designated, sur-
veyed and mapped out pursuant to law, as oys-
ter beds or bottom or shell-fish grounds; the
power to grant leases of lands for shell-fish cul-
ture according to law; and to grant licenses
where the same are prescribed by law; also
power to employ, with the approval of the
Board, inspectors, patrolmen and other helpers
in tidewater Georgia, provided that all inspectors
appointed or employed shall devote their entire
time to the service of the department, and pro-
vided further that the salary of no inspector shall
exceed eighteen hundred dollars per annum. Acts
1924, pp. 101, 104.
§ 2158(14.) Tidewater Commissioner's office;
clerks, etc. — It shall be the duty of the board to
establish and equip an office for the Tidewater
Commissioner in some convenient place in Tide-
water Georgia, and said Commissioner shall em-
ploy such other clerks and employees as may be
necessary for the proper carrying out of the of-
fice work as shall be authorized by said board.
Acts 1924, pp. 101, 105.
§ 2158(15). Bond of inspectors and patrolmen;
powers of wardens, inspectors, and patrolmen. —
Before entering upon the discharge of his official
duties each tidewater inspector and patrolman
shall give bond in the sum of one thousand dol-
lars, payable to the Governor, with sufficient
security, to be approved by the Ordinary of his
resident County, conditioned that he will well
and truly account for and legally apply all mon-
eys which may come into his hands in his official
capacity, and to pay all judgments rendered
against said inspector or patrolman for mali-
cious prosecution or for unlawful search or im-
prisonment, and that he will faithfully perform
all the duties enjoined upon him by law. The
county game warden of this State, the tidewater
inspectors, and the tidewater patrolmen shall be
vested with all the powers and authority now
vested by law in the game and fish wardens of
this State, and also in the sheriff's and constables
of this State, for the protection of game and fish
and shell-fish and the forests of this State. The
tidewater inspector shall exercise all the powers
and perform all the duties of game and fish
wardens in the tidewater counties of this State.
Acts 1924, pp. 101, 112.
§ 2158(1554). Powers, etc., of wardens and
deputy wardens specified. — Wardens and Deputy
Wardens shall enforce all the provisions of this
Act and all other laws in reference to game and
fish in their respective counties. Such Wardens
and Deputy Wardens shall receive three dollars
per day, while acting under the special directions
of the Commissioner with reference to the dis-
charge of their duties, which sum shall be paid
out of the Game Protection Fund provided by this
Act. Each County Warden shall receive one-
fourth of all fines and forfeitures and penalties
collected in the county in which he holds office,
imposed for violations of any of the game and
fish laws of this State, where he does not fur-
nish the evidence necessary to convict. If he does
arrest, or cause the arrest, and furnish the evi-
dence necessary to convict, then he shall have
three-fourths of such fines, forfeitures and pen-
alties. Any person arresting or causing to be ar-
[488 ]
§ 2158(16)
OYSTERS AND OYSTER BEDS
§ 2158(19)
rested offenders under any of the game and fish
laws of this State, and furnish the evidence nec-
essary to convict such offenders, shall receive one-
half of all fines, forfeitures and penalties imposed
and collected from such offenders and legal fees
paid to Constables. The remaining portion of
fines imposed and collected shall be forwarded
to the State Game Commissioner and by him
turned into the treasury to the credit of the Game
Protection Fund. The County Warden shall re-
ceive twenty-five cents for each county license
issued by him, one dollar for each State license,
and three dollars for each non-resident license
issued by him. All County Wardens shall keep
a record in the office of the Clerk of the Court in
their respective counties which record shall be
open to the public, giving names of all parties
holding resident county and State license and
non-resident State licenses issued by him. This
record shall also show the names, offenses and
fines imposed on all persons convicted for viola-
tions of the fish or game laws of this State in the
county of his jurisdiction. Acts 1911, pp. 137,
138; 1912, pp. 113, 115.
CHAPTER 3.
Oysters and Oyster Beds.
§ 2158(16). Leases of oyster beds; how and to
whom granted; terms of lease; applications; sur-
vey.— It shall be lawful for the Tidewater Com-
missioner to lease to any citizen of this State, or
to any corporation chartered under the laws of
this State and having its principal shucking plant
or canning factory in this State, portions of the
oyster beds or bottoms, other than natural or
privately owned beds or bottoms, for a period of
not exceeding twenty years, with the privilege of
renewal at such rate as may be prescribed by the
Tidewater Commissioner, but in no event can
any person, firm, corporation, or combination of
persons, lease or hold in excess of one thousand
acres, not to consist of more than two parcels, and
he shall [not] have the privilege of this section un-
til he has demonstrated to the Tidewater Com-
missioner his willingness, ability and intention to
comply with the laws, as well as the rules and
regulations prescribed by the board for leasing
and cultivating oyster beds. The owners of lands
having water fronts thereon suitable for planting
oysters shall have prior rights over all other ap-
plicants for assignment and lease [of] oyster plant-
ing grounds adjacent thereto. All applications for
lease of land under this Act shall be made on
blanks to be prescribed by the board and shall
be sworn to by the applicant. Each application
shall be accompanied by a deposit of $10.00 as a
guarantee of good faith, and to apply on cost of
survey. Notice of such application shall be pub-
lished once a week for four weeks in the official
gazette of the county or counties in which such
lands lie four weeks prior thereto. If no good
cause is shown to the contrary, the Commissioner
may have said ground surveyed and a plat made
thereof, and grounds marked off, at the cost of
the applicant, at the time the survey is made,
and at the direction of the surveyor, with suitable
stakes, smooth and free from snags, and spurs
and suitable stakes shall be kept by the lessee in
their proper places during the continuance of such
lease, so as to conform accurately to the survey.
Should such stakes be removed, rot down, or be
carried away, the lessee shall replace them at his
own expense in their proper places, and if he fails
to do so within thirty days after being notified
by the patrolman of the district within which the
ground lies, the said lease shall be forfeited.
Acts 1924, pp. 101, 105.
§ 2158(17). Record of survey; annual rental;
deposit of shells or oysters by lessee. — The sur-
vey and plot of any assignment, as soon as prac-
ticable after it is made, and after said grounds
shall have been assigned to said applicant, shall
be delivered to said applicant, who shall record
the same in the office of the Clerk of the Superior
Court of the County or Counties in which said
ground lies, and a copy thereof shall also be filed
in the office of the Tidewater Commissioner. The
surveyor surveying such tract so assigned shall
make plats of such surveys for such office, and
for the person to whom such assignment is made.
Such plat shall be duly recorded in such office in
a well-bound and substantial book, and indexed
in the name of the assignee. The Clerk of the
Superior Court shall receive for recording the
same in his office the fee now required for record-
ing deeds and plats in this State. The annual
rental of land leased under this Section shall be
such amount per acre as the board may fix upon,
but in no case less than twenty-five cents per an-
num, and shall be due on the first of September
of each year after the date of the assignment, and
payable on or before the first day of November
following. If not paid on or before November
first, a twenty-five per cent, fine shall be added,
and the inspector of such district shall proceed to
levy for rental and fines. The lessee shall be re-
quired to deposit, under the supervision of the in-
spector of his district within such time as may be
designated by the board in his lease, shells or
oysters to the amount of not less than ten or
more than one thousand bushels per acre for the
entire area leased, the amount to be fixed by the
Tidewater Commissioner. The lessee shall be
required to deposit, under the supervision and di-
rection of the Tidewater Commissioner, every
year during the life of the lease, a number of
bushels of shells or oysters on each acre of the
tract or parcel of ground leased by him, equal to
twenty-five per centum of the number of bush-
els of oysters taken by him therefrom. The les-
see shall be required to prove compliance with
both of these provisions as to deposit of shells or
oysters on the ground so leased by him, and in
default of such proof thereof the lease shall be
annulled. Acts 1924, pp. 101, 106.
§ 2158(18). Option to lease, given persons
planting oysters before Act. — Any person who
has planted oysters in good faith on lands prior
to the passage of this Act shall have the first op-
tion or refusal to have said land leased to him
by the Tidewater Commissioner, who shall take
the fact into consideration in fixing the lease fee
to be charged. Acts 1924, pp. 101, 107.
§ 2158(19). Reasonable time allowed to remove
oysters, when. — When any resurvey of oyster-
planting grounds or survey made to reestablish
the lines of the State survey of natural oyster
beds, rocks, or shoals, which may hereafter be
made under the direction of the Tidewater Com-
missioner, it shall appear that an\r holder, with-
out his own default and bjr mistake of any offi-
cer of the State, has had assigned to him and in-
[489]
§ 2158(20)
LICENSES
§ 2158(25)
eluded in the plat of his assignment any portion
of the natural oyster beds, rocks, or shoals, as
defined by law, and it shall appear that any such
holder has oysters or shells planted on the said
ground, then before the stakes shall be removed
from said grounds, or the same opened to the
public, the said holder shall be allowed a reason-
able time, the length of which shall be deter-
mined by the said Commissioner in his discre-
tion, within which to remove his planted oysters
or shells from the said ground, under the super-
vision of the Tidewater Commissioner. Acts
1924, pp. 101, 107.
§ 2158(20). Taxes on dealers in oysters and
shrimps; packages stamped with quantity; tax
stamps. — All distributors or dealers (including
manufacturers who are distributors or dealers)
who sell oysters in this State (except those im-
porting and selling the same in the original pack-
age in which brought into this State) shall pay
thereon an occupation tax as follows: one cent
on each sixty ounces of canned oysters; two (2)
cents on each gallon of raw shucked oysters;
five (5) cents upon each bushel of oysters sold
in the shell, and, in addition to the foregoing
taxes, a tax of one-sixteenth (l/16th) of a cent
is hereby imposed upon every pound of shrimps
or prawn caught or taken from the waters of this
State for sale; provided that nothing in this act
shall be construed to place a tax upon or prohibit
the sale of oysters or shrimps for local consump-
tion by peddlers or hucksters who sell direct to
the consumer; provided that no one person shall
take or remove from the public beds of this State
more than (10) bushels of oysters in any one day
for such purpose. Each package containing oys-
ters canned in this State, or raw shucked oysters,
or oysters in the shell, gathered in this State shall
be stamped by the manufacturer or dealer, or dis-
tributor, with quantity of oysters contained in
each can, barrel or other package in which the
same are offered for sale within the State or
shipped. Each distributor or dealer, including the
manufacturers who are distributors or dealers
shall place stamps in the amount necessary upon
each of said packages, to comply with the require-
ments of the payment of the occupation taxes
hereinbefore set out. Acts 1924, pp. 101, 109.
§ 2158(21). Occupation stamps, sale of; no
further tax. — The State Board of Game and Fish
shall adopt an occupation stamp or stamps of
such sizes and denomination as shall be deemed
advisable by the board, which shall have a serial
number, and be of such design as such board shall
select, suitable for the purpose of stamping the
cans and packages in which oysters are canned
or shipped as hereinbefore provided. Said board
shall provide for the sale of such stamps by the
Tidewater Commissioner of Game and Fish di-
rect to the distributors, dealers, and manufactur-
ers, as will best meet the requirements of such.
A can or package of sea food stamped to comply
with the provisions of this act shall not be sub-
ject to a further tax when passing through the
hands of another distributor. Acts 1924, pp. 101,
109, 110.
§ 2158(22). Oysters sold in shell, how meas-
ured; brand to be stamped on measure. — All oys-
ters sold in the shell in this State in Tidewater
Georgia shall be measured in circular tub, with
straight sides, straight and solid bottoms, with
holes in the bottom not more than one-half inch
in diameter. A bushel tub shall measure eighteen
inches from the inside across the bottom, and
twenty-one inches from the bottom to the top of
chime. All measures used for buying or selling
oysters shall have a brand, to be adopted by the
State Board of Game and Fish, stamped thereon
by the Tidewater Commissioner or his lawful in-
spectors or patrolmen. All measures found in the
possession of such person [one violating this sec-
tion] not meeting the requirements of this sec-
tion shall be destroyed by the Tidewater Com-
missioner of Game and Fish. Acts 1924, pp. 101,
110.
§ 2158(23). Dealer's record of oysters and
shrimp; reports to commissioner; file of bills of
lading. — All persons owning or operating canning
factories, shucking plants, or otherwise dealing in
or supplying shrimp or oysters for commercial
purposes, shall keep a record in which shall be
entered the amount of oysters and shrimp taken
from Georgia waters, the name of each person
from whom they shall purchase oysters and
shrimp, together with the date of purchase and
quantity purchased; the name, number and ap-
proximate tonnage of the boat in which they were
brought to the factory, the quantity canned and
packed for shipment, and the date and amount of
each shipment as well as a record of all raw
shipped oysters and shrimp and oysters sold in
the shell, and make an itemized written report to
the Tidewater Commissioner not later than the
fifth day of each month. They shall also keep
on file a copy of the bill of lading for each ship-
ment; said book and said file of bills of lading .to
be open at all times to the inspection of the Tide-
water Commissioner, or to his agent or employ-
ees, or to the Comptroller-General or his agents,
and they shall, between the first and fifteenth day
of May in each year, make a report to the Tide-
water Commissioner of the number of canned
oysters, and the number of stamps of each de-
nomination on hand on the first day of May.
Acts 1924, pp. 101, 111.
§ 2158(24). Owners of private oyster beds may
come under Act. — Any person, firm or corpora-
tion owning private oyster beds in Tidewater
Georgia may come under the provisions of this
act and have the same protection as is afforded
the lessees of State-owned oyster grounds under
the provisions of this act, by planting oysters
upon such grounds and placing oysters or shells
thereon in the manner prescribed for leased oys-
ter lands under the provisions of this act. Acts
1924, pp. 101, 112.
CHAPTER 4.
Licenses.
§ 2158(25). Non-citizens prohibited from catch-
ing shrimp or prawn; license for employers of
alien fishermen. — All persons not citizens of this
State are hereby prohibited from engaging in the
taking or catching of shrimp or prawn from the
salt waters of this State for commercial purposes.
Provided, that where the board is shown that a
bona fide Georgia concern owning and operating
a packing or canning plant, duly licensed by this
State and having its own fleet of boats, can not
operate all or a part of such fleet by reason of
inability to secure competent fishermen, that in
[490 ]
§ 2158(26)
LICENSES
§ 2158(3054)
such event said board shall license such boats to
be manned by alien fishermen by paying ten
($10.00) dollars per fisherman in addition to any
license required of such boats; and provided fur-
ther, that the foregoing provisions of this section
shall not apply to an alien who has had a fixed
and continuous residence in this State for a pe-
riod of three (3) years prior to January 1, 1925,
and who shall have filed his first citizenship pa-
pers signifying his intention of becoming a citi-
zen of the United Sates; these conditions to be
proved to the satisfaction of the Tidewater Com-
missioner before license shall be issued, it being
the full intent of this section that all boats shall
be manned by citizens of this State unless as
herein provided. Acts 1924, pp. 101, 114.
§ 2158(26). Licenses for boats, to whom issued.
— No license to operate a boat for the purpose
of taking fish, oysters or other sea-food from the
waters of this State shall be issued except to a
bona-fide citizen thereof, or to a resident corpo-
ration, or to that class of aliens described in Sec-
tion 2158(25), provided that all persons or cor-
porations holding licenses under this section shall
be prohibited from employing any person not a
citizen of this State, except as provided in Sec-
tion 2158(25), and provided further that should
the owner of any boat duly licensed under the
laws of this State sell or transfer said boat by
bill of sale or otherwise to any person not a citi-
zen of this State or a resident corporation as
aforesaid, then said license shall become null and
void immediately; provided further that the pro-
visions of this section shall not apply to boat li-
cense held at the time of the passage of this act,
but said license shall be good and valid as orig-
inally issued. Acts 1924, pp. 110, 114.
As to violation, see § 621 (11), P. C.
§ 2158(27). Licenses for boats, when granted.
— All boats engaged in taking fish, oysters, or
shrimp, or other sea-food, for the purpose of sale
from any of the waters of this State, shall, before
beginning operation, first secure from the Tide-
water Commissioner a license, and for this pur-
pose the owner of the vessel must present in
writing an application setting forth the name and
description of said vessel, the name and post of-
fice address of the owner and the Captain of said
vessel, the number of the crew, and such other
data or information as the said Commissioner
shall deem necessary. Said application shall be
made on blanks prescribed by the Commissioner
and shall be made under oath and duly witnessed
by the officer authorized by the law to adminis-
ter oaths; thereupon said Commissioner shall
register said vessel and issue license upon pay-
ment of cost thereof. The schedule of license for
boats shall be the same as provided in Section 3
of House Bill No. 267, approved August 19, 1919
[§ 2158(27^)]. Acts 1924, pp. 101, 116.
§ 2158(2754). Schedule of license fees.— A li-
cense fee of five dollars shall be levied on all bat-
teaux, and all boats propelled by sail or power of
less than five tons shall pay a license fee of ten
dollars; all boats of over five tons shall pay a
license fee of two dollars per ton or fraction of
a ton thereof. Acts 1919, pp. 236, 237.
§ 2158(28). License for fishing in salt-waters.
— Any person desiring to take or catch fish from
the salt-waters of this State, for commercial pur-
poses shall first obtain from the Tidewater Com-
missioner a license therefor, and said license shall
have effect for a period of twelve months from
the first day of the month following the date of
issue; the fee for such individual license shall be
two ($2.00) dollars. No such license shall be is-
sued to any person not a citizen of this State, and
said license shall not issue until the applicant
therefor shall state under oath on application pro-
vided therefor by the Tidewater Commissioner,
that he is a citizen of this State; provided that
fish license may be issued to persons not citizens
of this State, under the terms and conditions pre-
scribed in Section 2158(25). Acts 1924, pp. 101,
117.
§ 2158(29). Licenses issued by Tidewater Com-
missioner.^— All boat and fishing licenses and
other permits (except hunting license) heretofore
issued by the Game and Fish Commissioner in
Tidewater Georgia, shall be issued by the Tide-
water Commissioner, after his appointment and
qualification under this Act. Acts 1924, pp. 101,
117.
§ 2158(2954). License tags on boats; fees. —
Every boat required by law to obtain a license, en-
gaged in commercial fishing in Tidewater Georgia
shall have securely fixed on each side of the bow
thereof, and conspicuously displayed, in order
that it may be read from a reasonable distance, a
metal license tag of such style and size as maybe
prescribed by the State Board of Game and Fish.
The licensee of said boat shall be required to pay
in addition to the boat license such fee to cover
the cost of said tags as may be fixed by said
Board.
Provided the price charged for said tags shall
not exceed one dollar per boat. Acts 1925, p. 339.
As to violation, see § 621 (13), P. C.
§ 2158(30). Hunting licenses. — A license shall
be required to hunt in Georgia, and shall be issued
only upon a written application on a form to be
prescribed by the Game and Fish Commissioner.
Any person who shall make a false statement as
to his residence in such application shall be guilty
of a misdemeanor. A license may be issued to a
person to hunt in his resident county upon the
payment of a fee of $1.00; if such application is ac-
companied Iby a fee of three dollars ($3.00) the li-
cense shall authorize the applicant to hunt
throughout the state. A non-resident of Geor-
gia may procure a license to hunt throughout the
State upon the payment of a fee of $25.00. All li-
censes shall be dated, and if issued in open season
shall authorize the holder to hunt during the
remainder of said season; and if issued during the
closed season shall authorize the holder to hunt
during the next succeeding open season. The
fees from the sale of licenses shall be remiited,
less the county warden's commission, to the Game
and Fish Commissioner on the first of the month
following the sale of licenses, provided, that noth-
ing herein shall prevent a landowner, or his ten-
ants and their families with the landowner's con-
sent, from hunting on his own land without a
license. Acts 1925, p. 302.
§ 2158(3014). Trapper's license fee. — One who
traps furbearing animals for the purpose of sell-
ing animals or their hides, skins or pelts shall be
required to provide himself with a trapper's li-
cense to be issued by the Commissioner of Game
[ 491
§ 2158(30^)
DEPARTMENT OF COMMERCE AND LABOR
§ 2158(32)
and Fish on written application upon the same
conditions as are prescribed for the issuance of
hunting license. A trapper's license shall be is-
sued to a resident of the State of Georgia upon
the payment of a fee of $3.00, and to a non-resi-
dent upon the payment of a fee of $25.00. All
trapper's licenses shall authorize the holder to
engage in trapping anywhere in the State of
Georgia. Acts 1925, pp. 302, 305.
§ 2158(30^). Commission to county warden.
— Any county warden shall receive a commis-
sion of $1.00 on each resident trapper's license
sold by him and a commission of $5.00 on each
non-resident trapper's or hunter's license sold
by him. The remaining portion of said license
shall be remitted to the Game and Fish Com-
missioner on the first day of each month fol-
lowing the date of sale, for credit to the Game Pro-
tection Fund. Acts 1925, pp. 302, 305.
CHAPTER 5.
Records Required of Fishing Boats.
§ 2158(3024). Record book, reports.— Every
boat engaged in commercial fishing in Tidewa-
ter Georgia shall be required to maintain and
carry thereon at all times a record book to be
prescribed by the Board of Game and Fish,
showing the amount of fish, oysters, prawn and
other sea food caught daily, to whom sold, the
date of sale and delivery, and such other infor-
mation as may be required by said Board. Such
record shall be open at any and all times to the
duly authorized officers and deputies of the Game
and Fish Department. The owner or licensee of,
or any person operating said boat shall be re-
quired to make such reports, monthly or other-
wise, as may be required by trie Board of Game
and Fish. Acts 1925, pp. 339, 340.
SEVENTEENTH TITLE.
Department of Commerce and Labor.
CHAPTER 1.
Commissioner of Commerce and Labor and
Assistants.
§ 2158(31). Department established; commis-
sioners; duties; election; term of office; chief clerk
and stenographer. — A department of Commerce
and Labor is hereby created and established, the
duties of which department shall be exercised and
discharged by a commissioner, who shall be des-
ignated as Commissioner of Commerce and La-
bor, by an assistant, and by a Chief Clerk who
shall be a stenographer. Said assistant and said
Chief Clerk shall be appointed by the commis-
sioner. Said Commissioner of Commerce and
Labor shall be elected by persons qualified to vote
for members of the General Assembly, at the
same time, in the same manner and under the
same rules and regulations as the Governor and
State House Officers; and shall hold his office for
two years and until his successor is elected and
qualified, unless removed in the manner now pre-
scribed by law for the removal of officials of the
State Government. In case of a vacancy in the
office of Commissioner of Commerce and La-
bor from any cause, such vacancy shall be filled
by appointment by the Governor, which ap-
pointee shall hold office until his successor is
elected and qualified. The first election for
Commissioner of Commerce and Labor shall take
place at the special election which shall be or-
dered and held for Governor to fill the unexpired
term of the present Governor, and such com-
missioner shall hold office until his successor shall
have been elected at the next general election
for State House Officers and until his successor
shall qualify. The office of said department shall
be kept in the capitol and shall be furnished and
provided for as are other departmental offices of
the State. Said commissioner and his assistant
shall devote their whole time to the duties of
their office and shall not hold any other office
during their terms of office. Acts 1911, p. 133;
1913, p. 82.
§ 2158(32). Duties of commissioner and assist-
ants.— The Commissioner, aided by his lawful as-
sistants, shall collect and collate information and
statistics concerning labor and its relation to
capital, showing labor conditions throughout the
State; the hours of labor; the earnings of labor-
ers; and their educational, moral and, financial
condition, and the best means of promoting their
mental, moral, and material welfare; shall inves-
tigate the cause and extent of labor shortage, and
the migration of labor; shall also collect and col-
late information and statistics concerning the lo-
cation, capacity of mills, factories, workshops,
and other industries, and actual output of manu-
factured products, and also the character and
amount of labor employed; the kind and quantity
of raw material annually used by them, and the
capital invested therein; and such other informa-
tion and statistics concerning the natural re-
sources of the State and the industrial welfare
of the citizens as may be deemed necessary and
of interest and benefit to the public and by the
dissemination of such data to advertise the va-
rious industrial and natural resources of Geor-
gia in order to attract desirable settlers and to
bring capital into the State. The Department of
Commerce and Labor is also charged with the
following duties:
Paragraph A. As soon as practicable after
the passage of this Act, the Commissioner shall
organize a Division of Labor or Free Employ-
ment Bureau, having for its purpose the listing
of names of all persons desiring employment in
this State and the endeavor to secure employ-
ment for such persons, and the listing of the
names of such persons, firms or corporations ap-
plying for labor and the endeavor to supply the
demand. In conducting the Division of Labor
the Commissioner of Labor is herewith author-
ized and empowered to assist and act in con-
cert with any person or persons, county organ-
izations, municipal or government agency,
having for its purpose the distribution of labor
in this State, and conducted for profit, and to co-
operate with similar exchanges in other States
and the United States Employment Service, and
in every other way the Commissioner is charged
with the duty of endeavoring to be of assistance
to both employer and employee, and of work-
ing in harmony with others having a like end
in view, and for which no remuneration is re-
ceived. For securing employment for those who
wish employment and for securing labor for
those who need help there shall be no charge
[492]
§ 2158(32)
COMMISSIONER OF COMMERCE AND LABOR
§ 2158(36)
whatever made or accepted, directly or indirectly,
by any person connected with the Department of
Commerce and Labor. All the officials of the
State and the various counties of the State are
herewith charged with the duty of lending such
aid and assistance as may be called for by the
Commissioner. Provided, said Commissioner
may inquire into the cause of strikes and lockouts,
and other disagreements between employers and
employees, and wherever practicable, offer his
good offices to the contending parties with a view
of bringing about friendly and satisfactory adjust-
ment thereof.
Paragraph B. The Commissioner shall exer-
cise jurisdiction over each person, firm or corpo-
ration acting as a private employment agent, in-
telligence bureau or employment agency, herein-
after referred to as agency; shall, as frequently as
may be necessary, examine into the condition of
each agency; shall require each agent to make ap-
plication for license to do business, which appli-
cation must be endorsed by two taxpayers in the
county where such agency proposes to conduct
business, said license to be granted by the Com-
missioner upon payment to the State of such tax
as may be charged, and the filing of a bond in
the sum of five hundred ($500.00) dollars for the
faithful performance of duty, said license to be re-
newed annually. The Commissioner shall re-
quire each agency to report to him once a month
in writing, showing the names, addresses, and
number of persons for whom positions were se-
cured, where secured, the kind of position, the
pay of same, the amount of fee collected and the
amount still to be collected. Nothing in this par-
agraph shall authorize an employment agency or
person connected with such agency, or any em-
ployee thereof, to act as an emigrant agent. If
any agent is found violating the law it shall be
the duty of the Commissioner to immediately
proceed to have such person presented, to the
proper authorities for prosecution and to cancel
the license of such agency to do business.
Paragraph C. The Commissioner shall exer-
cise jurisdiction over each person, firm or cor-
poration acting as an emigrant agent or agency,
hereafter referred to as emigrant agent; shall re-
quire each emigrant agent to make application
for license to do business, said application to be
endorsed by two taxpayers and accompanied by
a bond of one thousand ($1,000.00) dollars for
the faithful performance of duty, and the pay-
ment of such tax as may be required by law.
Each emigrant agent shall make a daily report
to the Commissioner showing the names, ad-
dresses, and number of people carried out of the
State, the points to which they have been car-
ried, the kind and character of work secured for
them, the pay to be received by them, the fee
charged them or to be collected, and from whom.
The emigrant agent must show clearly by whom
employed, if paid a salary, or from whom he re-
ceives a commission, and how much. The Com-
missioner shall inspect the office and work of
each emigrant agent as often as may be neces-
sary, and, if any emigrant agent is found to be
violating the law, it shall be the duty of the Com-
missioner to immediately proceed to have such
person presented to the proper authorities for
prosecution and to cancel the license to do busi-
ness. Each emigrant agent must secure annually
a license to do business. In contemplation of
this Act, the emigrant agent is any person who
shall solicit or attempt to procure labor in this
State to be employed beyond the limits of the
same.
Paragraph D. Any person desiring to secure
labor within the State for the use of himself be-
yond the boundaries of the State must first notify
the Commissioner of his intention to secure labor
within the State for use outside the State, stat-
ing how many laborers are to be secured, where
the labor is to be secured, and where said labor
is to be transported, the pay to be given said la-
bor, why the labor cannot be secured in the State
where it is to be used, the average number of
laborers employed, and any additional facts con-
cerning the movement of such labor desired by
the Commissioner. If satisfied that the person
desiring to secure such labor is acting bona fide
for himself and desires the labor for his sole use
and behalf outside the State, the Commissioner
may issue a permit for the removal of such la-
bor beyond the confines of the State, if in his
judgment the labor can be spared by the section
from which it is sought to be carried. Acts 1911,
p. 133; 1913, p. 82; 1917, p. 88; 1920, pp. 118, 123.
§ 2158(33). Reports and blanks for same.— The
Commissioner shall furnish suitable blanks to the
heads of the various industries of this State, upon
which answers are desired in the collection of
such statistical data.
But no use shall be made in the report of the
Department of the names of individuals, firms or
corporations supplying the information called for
by this Act, such information being deemed con-
fidential, and not for the purpose of disclosing
any person's private affairs.
All officers of the various counties of this State
shall, when called upon, furnish the Commis-
sioner such statistical and other information
within their official knowledge or keeping, con-
cerning such industrial and other interests, within
the purview and intent of this Act. Acts 1911,
pp. 133, 135.
§ 2158(34). Safety of employees; investigation.
— Said Commissioner shall make investigation
concerning the operation of the various laws re-
lating to the safety of the life and limb of em-
ployees, especially those concerning the employ-
ment of child labor, and of women, and he shall
take legal steps looking to the proper enforcement
and due observance of such laws. Acts 1911, pp.
133, 135.
§ 2158(35). Strikes and lockouts; investigation.
— Said Commissioner may inquire into the causes
of strikes and lockouts, and other disagreements
between employers and employees; and, when-
ever practicable, offer his good offices to the con-
tending parties with a view of bringing about
friendly and satisfactory adjustments thereof.
Acts 1911, pp. 133, 136.
§ 2158(36). Reports of commissioner. — The
Commissioner shall annually publish a report ad-
dressed to the Governor, embod3nng therein such
information and statistics as he may deem expe-
dient and proper, which report shall be printed
and paid for by the State just as reports of other
public officers are printed and paid for. The num-
ber of copies of such report to be printed to be
designated by the Commissioner. He shall also
make a full report to the Governor, as other offi-
[493]
§ 2158(37)
DEPARTMENT OF ARCHIVES AND HISTORY
§ 2158(42)
cers are required to do, embodying therein such
recommendations as he may deem calculated to
promote the efficiency of his Department. Acts
1911, pp. 133, 136.
§ 2158(37). Salaries and expenses. — The Com-
missioner shall receive a salary of thirty-six hun-
dred dollars per annum; the Assistant Commis-
sioner twenty-four hundred dollars per annum;
and the chief clerk and stenographer fifteen hun-
dred dollars per annum; and eighteen hundred
dollars per annum shall be allowed for the in-
cidental expenses of said Department, including
the actual traveling expenses of said Commis-
sioner, Assistant and Chief Clerk, while travel-
ing for the purpose of collecting information and
statistics as provided in this Act. Acts 1911, pp.
133, 136; 1913, pp. 82, 84; 1919, p. 278; 1925, p.
141.
§ 2158(38.) Factory inspector; appointment. —
The Commissioner of Commerce and Labor shall
have the power and authority to appoint one fac-
tory inspector to aid in the enforcement and ob-
servance of the new child-labor law, and such
other laws as are now or may hereafter come
under the jurisdiction of the Department of Com-
merce and Labor. Acts 1916, p. 113.
§ 2158(39). Duties of inspector. — Said inspector
shall work under the direction and supervision
of the Commissioner of Commerce and Labor,
and shall make a written report of each inspec-
tion of factories, manufacturing establishments,
workshops, and mercantile establishments, to said
commissioner, to be of file in the Department of
Commerce and Labor, and shall collect such in-
formation and statistics as the commissioner may
direct and under the direction and supervision of
the commissioner may institute proceedings against
any person, firm or corporation found violating
any of the laws with the enforcement of which
said department is charged. Acts 1916, p. 113.
§ 2158(40). Salary of inspector and traveling
expenses. — The inspector shall receive a salary
of $1,200 per annum, payable in the manner pre-
scribed for other State-house officials, and shall
further receive out of the contingent fund of the
Department of Commerce and Labor his neces-
sary traveling expenses while on the road mak-
ing inspections and collecting information and
statistics for the department, said expense vouch-
ers to be approved by the Commissioner of Com-
merce and Labor. Acts 1916, p. 113.
EIGHTEENTH TITLE.
Department of Archives and History.
CHAPTER 1.
Establishment of Department.
State Historical Commission Officers.
§ 2158(41). Department established; objects and
purposes. — To prevent the destruction of its rec-
ords, now threatened with serious loss, there
shall be established for the State of Georgia a
Department of Archives and History, to be lo-
cated in the State Capitol, said department to be
created in lieu of the present office of Compiler
of State Records, quarters to be set aside for
its use by the Governor; and the objects and
purposes of the said department shall be (1) to
provide a central depository in which to as-
semble the official archives of the State, includ-
ing the old records of the various departments
of the State, not in common use; to collect from
the files of old newspapers, court records, church
records, private collections, and other sources,
data of all kinds bearing upon the history of the
State; to secure from private individuals, either
by loan or gift, rare volumes, manuscripts, docu-
ments, and pamphlets for the use of this depart-
ment; and to obtain in like manner historical
trophies, souvenirs and relics. (2) To classify,
edit, annotate and publish from time to time
such records as may be deemed expedient and
proper, including messages of Governors, exec-
utive orders, State papers, military rosters of the
Revolutionary, Indian, Mexican, Civil and Euro-
pean Wars. (3) To diffuse knowledge in re-
gard to the State's history, and to prepare bi-
ennially an official register, giving the latest in-
formation of an official character in regard to
the State, including a full list of State house offi-
cers, legislators, judges and solicitors, members
of Congress, county officials, etc., together with
other pertinent items of information. (4) To
encourage the proper marking of battle fields,
houses and other places celebrated in the his-
tory of the State; to encourage the study of
Georgia history in our public schools, and to as-
sist in the observance of patriotic occasions. (5)
To stimulate historical research, especially in
the prosecution of local histories. (6) To foster
sentiment looking to the better protection, class-
ification and arrangement of records in the va-
rious court houses of the State. (7) To prepare
a Bibliography of Georgia, and to indicate, by
title at least, every book written about Georgia
or by Georgia authors. (8) To collect biograph-
ical information in regard to all public officials
and to keep same on file, in a classified arrange-
ment, for convenient reference by investigators.
Acts 1918, pp. 137, 138.
§ 2158(42). State historical commission; or-
ganization and meetings; director and secretary;
powers of commission. — (1) The said depart-
ment shall be under the control of a State His-
torical Commission, membership of which shall
include the Governor, the Secretary of State,
the Attorney-General, the State Treasurer, the
Secretary of Agriculture, the State School Su-
perintendent, the Commissioner of Commerce
and Labor, the Commissioner of Pensions, the
Tax Commissioner, and the State Librarian. (2)
The said commission shall, on the first Wednes-
day after the approval of this Act, proceed to or-
ganize said department; but the annual meet-
ing thereafter shall be the first Wednesday in
June. The commission shall sit at the State cap-
itol, at least one meeting during the year, and at
said meetings five members shall constitute a
quorum. (3) The director, or State historian, as
hereinafter provided, shall be the secretary of
the commission. (4) Said commission is empow-
ered to adopt rules for its own government and
for the government of the department; to elect a
director; to provide for the selection or appoint-
ment of other officials or employees, as may be
authorized; to provide for the publication of his-
torical material pertaining to the State, under the
supervision of the director; to control and expend
such appropriations as may be made for its main-
[494 ]
§ 2158(43)
DEPARTMENT OF AUDITS AND ACCOUNTS
§ 2158(50)
tenance and to do such other acts and things as
may be necessary to carry out the true intent and
purpose of this Act. Acts 1918, pp. 138, 139.
§ 2158(43). Publications. — Said commission
shall fix a fair price for its publications, the rev-
enue arising from such sales to be devoted to
extending the work of the commission; provided,
that at least one copy of its publications shall be
furnished free of charge to any State institution
making application for same through its consti-
tuted authorities. Said commission is also au-
thorized in its discretfon, either by sale or other-
wise, to dispose of such excess copies of its .pub-
lications as may from time to time accumulate;
and in like manner dispose of any editions here-
tofore published, of which there may be an excess
on hand. Acts 1918, p. 139.
§ 2158(44). Offices. — Said commission shall have
an office or offices set aside for its use by the
Governor in the State capitol; provided, that un-
til such office or offices become available, said
commission may rent an office or offices, the rent
to be paid out of its maintenance fund. Acts 1918,
pp. 137, 139,
§ 2158(45). Director's election, term of office,
and duties. — (1) The department shall be under
the immediate management and control of a di-
rector or State historian, who may be a woman,
who shall be elected by said commission for a
term of six years, and until his successor shall be
elected and qualified. (2) He shall take an oath
of office as other public officials and shall be com-
missioned in like manner. (3) He shall devote
his time to the work of the department, using his
best endeavors to develop and build it up, so as
to carry out the design of its creation, and shall
receive for his services the sum of three thousand
dollars per annum, payable monthly. (4) He shall
have control and direction of the various activ-
ities of the department, he shall preserve its col-
lections, care for its official archives Which may
come into its custody, and perform all of the
duties enumerated in Section 2158(41). (5) He
shall also make an annual report to the commis-
sion, to be by them transmitted to the Governor,
including all receipts and expenditures, together
with a full report of the work accomplished dur-
ing the twelve months immediately preceding,
and he shall contract for the printing and bind-
ing of said report, to be paid for as other print-
ing and binding; and he shall also prepare for
the press, annotate and index the manuscript
volumes compiled by Governor Candler, contract
for and supervise the publication of same, and
perform such other duties as may rightfully per-
tain to his office as director of said department.
Acts 1918, pp. 137, 140.
§ 2158(46). Preservations of books, records,
etc. — Any State, county, or other official is hereby
authorized and empowered in his discretion to
turn . over for permanent preservation therein
any official books, records, documents, original
papers, manuscript files, newspaper files, por-
traits, and printed volumes, not in current use in
his office; said commissioner shall provide for the
preservation of said materials, and when so sur-
rendered, copies thereof shall be made and cer-
tified by the director upon the application of any
person interested, which certification shall have
all the force and effect as if made by the officers
originally in custody of them and for which the
same fees shall be charged. Acts 1918, pp. 137,
140.
§ 2158(47). Statistical register of officials, etc. —
An official and statistical register of the State of
Georgia shall be compiled every two years by
the director to contain: (1) brief sketches of the
several State officials, the members of Congress
from Georgia, the Supreme Court Judges, Judges
of the Court of Appeals, members of the Senate
and House of Representatives, Judges and Solic-
itors-General of the Circuit Courts of the State;
(2) rosters of all State and county officials; (3)
lists of all State "institutions" with official boards;
(4) State and county population and election sta-
tistics, and (5) miscellaneous statistics bearing
upon relative matters of current interest or likely
to be of value to the future historian. Acts 1918,
pp. 137, 141.
§ 2158(48). Printing, etc. — All printing, blanks,
circulars, notices or forms, which may be needed
for the use of said department, and of all official
communications, reports, etc., shall be printed
under the authorities in control of the public
printing of the said State, and shall be paid for
as other printing of the State. Acts 1918, pp. 137,
141.
NINETEENTH TITLE.
Department of Audits and Accounts.
CHAPTER 1.
Department Established. State Auditor.
§ 2158(49). Department created; State Auditor;
appointment, qualification and term of office. —
The Department of Audits and Accounts is hereby
created and established; the head of said depart-
ment shall be an experienced auditor and account-
ant, who shall be appointed by the Governor and
whose appointment shall be confirmed by the
Senate, and who shall serve for a term of four
years and until his successor is appointed and
qualified, and who shall be known and designated
as "State Auditor." The State Auditor may be
removed from office by the Governor on account
of inefficiency or malpractice, but only after be-
ing heard with respect to such charges. Acts
1923, Extra Sess., pp. 7, 8.
§ 2158(49^). No authority to employ other
agencies. — No official of the State of Georgia shall
have authority to employ or hire any other au-
diting agency. The State Auditing Department
shall audit all State institutions, except those ac-
counts now audited by the State School auditor.
Acts 1925, pp. 256, 257.
§ 2158(50). Salary and travelling expenses of
State Auditor; entire time to office; bond. — The
State Auditor shall be paid a salary of six thou-
sand ($6,000.00) dollars per annum, payable
monthly, and shall also be paid his actual trav-
elling expenses while actually engaged in the per-
formance of his official duties, to be proven by
his sworn itemized statement and approved by
the Governor. The State Auditor shall devote his
entire time to the performance of the duties of
his office, and shall give bond, to be filed with
and approved by the Comptroller-General, in the
sum of ten thousand ($10,000.00) dollars, payable
to the Governor and his successors in office, con-
[495 ]
§ 2158(51)
DEPARTMENT OF AUDITS AND ACCOUNTS
§ 2158(55)
ditioned that he shall truly and faithfully per-
form the duties of his office and shall account for
all public funds coming into his hands or under
his control, the premium on which bond shall be
paid by the State. Acts 1923, Extra Sess., p. 7;
1926, p. 256.
§ 2158(51). Assistants and salaries. — The State
Auditor shall be authorized and he is hereby au-
thorized and empowered to appoint and employ
the following officers and assistants, each of
whom shall hold office during the pleasure of the
State Auditor, to-wit:
(a) One assistant State Auditor at a salary of
not to exceed four thousand ($4,000,00) dollars per
annum.
(b) Two examiners at a salary of not to exceed
three thousand ($3,000.00) dollars per annum.
(c) Two assistant examiners at a salary not to
exceed twenty-four hundred ($2,400.00) dollars
per annum.
(d) A steno-bookkeeper at a salary of not to
exceed eighteen hundred ($1,800.00) dollars per
annum.
(e) All the employees of the Department shall
be paid their actual traveling expense while ac-
tually engaged in the performance of their official
duties to be proven by their sworn itemized state-
ment approved by the State Auditor. Provided
no expenses shall be paid to any employee of the
department while they are engaged in the per-
formance of their duties in Fulton County. Acts
1925, p. 256.
§ 2158(52). Duties and powers of State Auditor.
— The duties and powers of the State Auditor
shall be as follows:
(a) To devise, and, with the approval of the
Governor, to promulgate, install, and establish
forms and records for the collecting and paying
out of all monies, funds and revenues of the
State and to insure the protection and proper use
of all stores, equipment and property of the State.
(b) To thoroughly examine all financial trans-
actions of all the State departments, institutions,
agencies, commissions, bureaus and officers and
to keep such accounting records as are necessary
to provide and maintain a current check upon the
fiscal affairs and transactions of all State depart-
ments, institutions, agencies, etc.
(c) To examine and thoroughly audit, at least
once a year, and more frequently if possible, each
and all of the books, records, accounts, vouchers,
warrants, bills and all other papers and records
of each and every department, institution, agency,
commission, bureau and officer of the State of
Georgia which or who receives funds from the
State or which is maintained in whole or in part
by public funds or fees or commissions; and upon
the completion of each such audit the State Au-
ditor shall prepare a complete report of the same
in triplicate, one copy of which he shall file with
the official in charge of the department, institu-
tion, etc., so examined, one copy of which he shall
transmit to the Governor, and the third copy shall
be filed in the office of the State Auditor as a per-
manent record and for the use of the press of the
State; and in which report the State Auditor shall
call special attention to any illegal, improper or
unnecessary expenditures, all failures to keep rec-
ords and vouchers required by the law, and all
inaccuracies, irregularities and shortages, and shall
make specific recommendations for the future
avoidance of the same.
(d) To prepare annual and, whenever required,
special reports to the Governor and the General
Assembly, showing the general financial operation
and management of each State department, insti-
tution, agency, commission and bureau, and
whether or not the same is being handled in an
efficient and economical manner, and calling spe-
cial attention to any excessive cost of operation
or maintenance, any excessive expense, and any
excessive price paid for goods, supplies or labor
by any such department, institution, agency, etc.
(e) To make special examination into and re-
port of the place and manner in which the funds
of the State are kept by the several departments,
institutions, agencies, Commissions, bureaus, and
officers after the same have been drawn from the
State Treasury or after the same have been col-
lected and report who has possession of the same
or where the same are deposited, and whether the
same draw interest, the rate of interest, and
whether the same are properly protected by bond.
Provided, this Act shall not be construed to
authorize the State Auditor to remove or in any
way interfere with any funds so deposited. Acts
1923, Extra Sess., pp. 7, 9.
§ 2158(53). Special examinations and audits;
who may require. — Either the Governor, the State
Investigating and Budget Commission, the Ap-
propriations Committee of the House of Repre-
sentatives or the Appropriations Committee oi
the Senate, shall have the right and authority to
direct and require the State Auditor to make a
special examination into and audit of all of the
books, records, accounts, vouchers, warrants, bills,
and other papers and records, and the financial
transaction and management of any department,
institution, agency, commission, bureau and offi-
cer of the State of Georgia at any time. Acts
1923, Extra Sess., pp. 7, 11.
§ 2158(54). Accounts of certain taxpayers au-
dited.— Said State Auditor shall, upon the re-
quest of either the Governor or the Comptroller-
General, make an examination into and report
upon the necessary books,, records and accounts
of those persons, firms and corporations required
by law to pay an occupation tax as distributors
of motor fuels, as defined in Sections 993(155)-
993(160), and also of those persons, firms and
corporations required by law to pay a tax upon
the retail sales price of cigarettes and cigars, as
defined in Sections 993(149)-993(154) ; said exam-
ination to be made at such time as might be fixed
by the Comptroller-General and for the purpose
and to the extent of ascertaining whether or not
said tax is paid and collected as provided by law.
Acts 1923, Extra Sess., pp. 7, 11.
§ 2158(55). Compliance with rules for and audit
required of all State departments, etc. — All offi-
cers, agents, employees, departments, institutions,
commissions and bureaus of the State are directed
and required to conform to and comply with all
rules, regulations and forms devised, promulgated
and installed by the State Auditor in conformity
with this Act, and shall produce and turn over to
the State Auditor or his assistants, for examina-
tion and audit, whenever demanded by said State
Auditor, all of their books, records, accounts,
vouchers, warrants, bills and other papers dealing
with or reflecting upon the financial transactions
and management of such department, institution,
agency, commission, bureau, or officer, including
any and all cash on hand, but not including cash
[496 ]
§ 2158(56)
STATE INVESTIGATING AND BUDGET COMMISSION
§ 2158(64)
in bank, the amount of cash in bank to be ascer-
tained by certificate furnished the State Auditor
by the bank. Acts 1923, Extra Sess., pp. 7, 11.
§ 2158(56). Co-operation required of State Au-
ditor.— The State Auditor shall co-operate with
and shall furnish all information requested by
the State Investigating and Budget Commission
and the Appropriations Committees of the Gen-
eral Assembly. Acts 1923, Extra Sess., pp.
7, 12.
§ 2158(57). Certain school and banking laws
not affected. — The provisions of this Act shall
in no way affect the duties of the bookkeeper
and accountant as defined and provided for in
Section 1551(70), nor with rights, powers and
duties of the State banking department. Acts
1923, Extra Sess., pp. 7, 12.
§ 2158(58). Quarters of department; expense,
etc. — The department of audits and accounts shall
be provided with suitable apartments at the State
Capitol, furnished at the State's expense, as may
appear proper and necessary by the Governor, and
said department shall be furnished from time to
time, upon approval of the Governor, necessary
equipment, furniture, fuel, light and other proper
conveniences for the transaction of said depart-
ment, the expense of which shall be paid by the
State in the same manner as the expenses of
other offices at the Capitol are paid. Acts 1923,
Extra Sess., pp. 7, 12.
§ 2158(59). Investigations and recommendations
by the State Auditor. — The State Auditor
shall thoroughly investigate the different systems
and methods now practiced by the several depart-
ments, institutions, agencies, commissions, bureaus,
etc., in the handling of their financial affairs and in
the purchasing of supplies and materials, and he
shall recommend to the 1924 session of the Gen-
eral Assembly:
(a) A system of financial accounting and man-
agement under which all bills and items of ex-
pense of each department, institution, agency, com-
mission, bureau, and officer of the State can be
investigated, audited and approved before the
same are paid; and
(b) The practicability of establishing a central
purchasing agent or agency to purchase the gen-
eral or staple supplies and materials for the sev-
eral State departments, institutions, agencies,
etc. Acts 1923, Extra Sess., pp. 7, 12.
TWENTIETH TITLE.
State Investigating and Budget Commission.
CHAPTER 1.
Commission Established; Membership;
Duties, etc.
§ 2158(60). Commission created; membership.
— A State Investigating and Budget Commis-
sion is hereby created and established, composed
of the Governor who shall be its chairman, the
Comptroller-General, the Chairman of the Ways
and Means and Appropriation Committee of the
Senate, the Chairman of the Ways and Means and
Appropriation Committee of the House of Rep-
resentatives and the Attorney General who shall
serve until their successors are elected and qual-
ified. Acts 1922, pp. 128, 129.
§ 2158(61). Reports of departments, etc. — At
least sixty days, and not more than ninety days
before each regular session of the General As-
sembly, the several departments, institutions,
commissions, bureaus and officers of the State
shall report to the Governor, on blanks to be
furnished for such purposes by the Comptroller-
General an estimate in itemized form, stating
the amount of money needed for their respective
wants for the biennial period beginning with the
next regular session of the General Assembly
thereafter, citing the statute or authority, if any
under which the appropriation is requested.
Each department, institution, commission, bu-
reau, and officer of the State shall furnish, as a
part of their several reports, a statement show-
ing the total amount of the appropriation received
by each of said departments, institutions, commis-
sions, bureaus and officers for each of the three
'fiscal years immediately preceding the date of the
filing of such report. Said report shall be directed
to the Governor and the Finance Committees of
the General Assembly. Acts 1922, pp. 128, 129.
§ 2158(62). Itemized statements. — When the
several departments, institutions, commissions,
bureaus, and officers of the State shall make their
reports, as provided in the preceding section, said
departments, institutions, commissions, bureaus
and officers shall file, with the Governor, on blanks
to be furnished for that purpose by the Comp-
troller-General, an itemized report of all expendi-
tures of such departments, institution, commission,
bureau or officer, showing the number of persons
employed, the salary of each, the traveling ex-
penses of each, and in case of eleemosynary in-
stitutions including correctional institutions, re-
quiring or receiving an appropriation from the
State shall report the number of inmates, the cost
of maintenance per capita, the value of the prop-
erty under the control of the department, institu-
tion, commission, bureau or officer, and the
amount of revenue earned if any, and how much,
if any, thereof is paid directly into the State Treas-
ury, and such other itemized report as will put in
the possession of the Commission, a full and com-
plete itemized statement of receipts and disburse-
ments for the fiscal year ending immediately pre-
ceding the filing of such report. Acts 1922, pp.
128, 130.
§ 2158(63). Further information. — Said depart-
ments, institutions, commissions, bureaus and of-
ficers of the State shall forthwith, upon the re-
quest of the Commission, furnish to the Governor
any further information desired in relation to the
affairs of their respective department, institution,
commission, bureau or office. Acts 1922, pp. 128,
130.
§ 2158(64). Appropriation budget blanks. — The
Commission shall make up and furnish through
the Comptroller-General to the said several de-
partments, institutions, commissions, bureaus and
officers, receiving or entitled to receive from the
State, an appropriation of money, suitable blanks
for such department, institution, commission, bu-
reau and officer to make their reports as herein
required. Such blanks shall be called "Appropri-
ation Budget Blanks," and they shall be furnished
by the Comptroller-General as herein provided,
not less than ninety days before each regular ses-
sion of the General Assembly. Acts 1922, pp. 128,
130.
[497]
§ 2158(65)
EXAMINING COMMISSION
§ 2158(73)
§ 2158(65). Budget; submission to General As-
sembly.— The Commission shall examine said re-
ports and after thorough investigation thereof,
shall make up a budget covering each department,
institution, commission, bureau and officer in the
State entitled to an appropriation, setting forth
the amount such department, institution, commis-
sion, bureau or officer may be entitled to receive
in the opinion of the Commission, for the next
bienniem and the Governor shall submit said
budget to the General Assembly at the beginning
of each regular session thereof and said budget
shall show the estimated revenue for the same pe-
riod of time. Said report shall not be binding on
the General Assembly, but shall be furnished for
the purpose of aiding the General Assembly in
making appropriations. Acts 1922, pp. 128, 131.
§ 2158(66). Not applicable to salaried employ-
ees.— The provisions of this Act shall apply to
each department, institution, commission, bureau
and officer of the State in charge of an institution,
bureau, department, or commission, but shall not
apply to any individual who merely draws a sal-
ary from the State. Acts 1922, pp. 128, 131.
§ 2158(67). Audit; appropriation. — The Com-
mission shall have authority to employ an auditor
or an accountant, if there is no State auditor to
investigate the account, or accounts, of any de-
partment, institution, commission, bureau, or of-
fice of the State, required by this Act to make a
report, if, in the opinion of the Commission, after
an examination of such report, such department
or departments, should be audited to show the
true financial condition thereof; provided, how-
ever, before such auditor or accountant is em-
ployed, the Governor shall make known to the
General Assembly, in proper manner, what de-
partment, institution, commission, bureau or of-
fice the Commission believes should be audited,
together with an estimate of the expenses of such
audit, and the General Assembly may appropriate
such sum or sums as it may deem necessary for
such audit or investigation. Acts 1922, pp. 128.
131.
TWENTY-FIRST TITLE.
Examining Commission.
CHAPTER 1.
Commission Created; Membership; Duties;
Powers, etc.
§ 2158(68). Commission created; membership.
— -There shall be created a commission, which
commission shall be composed of the Governor,
who shall be chairman; the Attorney-General, the
Superintendent of Education, and the chairman
of the Appropriations Committees of the Senate
and of the House, which officers shall serve as
members of said commission during their term of
office and until their successors are elected and
qualified. Acts 1918, pp. 155, 156.
§ 2158(69). Duty to examine and report to leg-
islature.— It shall be the duty of said commis-
sion annually to make an examination of the
State's affairs and of all the departments of the
State government, and of the institutions of the
State which are supported in whole or in part by
appropriations from the State treasury. This com-
mission shall examine the needs of the several
departments and institutions as aforesaid, and
shall make to the Legislature such recommenda-
tions as they see fit in reference to the appropria-
tions to be made for the support of said institu-
tions. It shall also make to the General
Assembly of each session a detailed statement of
the State's finances, showing the appropriations
made by previous Legislatures, the amount of
each appropriation which has been paid, and the
amount which, at the time of the report, is still
unpaid. It shall make a detailed report of the
State's finances for the current year, showing the
amount of the State's revenue and the sources
from which the same is obtained, and it shall sub-
mit this report upon the convening of the Legis-
lature, or within ten days thereafter. Acts 1918,
pp. 155, 156.
§ 2158(70). Appropriations; preparation of ap-
propriation bills. — It shall be the duty of said com-
mission to examine into the appropriations for
previous Legislatures and the necessity for the
same, and it shall report its opinion as to whether
or not the same should be discontinued, decreased
or increased in amount. The said commission
shall prepare and submit to the General Assembly
a bill or bills to carry out its recommendations,
and shall also prepare for each General Assem-
bly the General Appropriation Bill, which appro-
priation bill shall be by the said commission de-
livered to the chairman of the Appropriations
Committee of the House. Acts 1918, pp. 155,
156.
§ 2158(71). Powers of the commission. — The
said commission is hereby authorized in the
exercise of these powers to examine all offi-
cers of the departments of the State govern-
ment, and of all the State's institutions, and
they are further authorized to visit the said
institutions and make a thorough examination of
the same, and into their methods of accounting
and finances, and it is authorized to establish in
the various institutions of this State, and in the
various departments of the State government, a
uniform system of accounting, and it is author-
ized in its discretion to send for persons and pa-
pers, and, if necessary, to administer oaths. Acts
1918, pp. 155, 157.
§ 2158(72). Clerical expense. — In the discharge
of its duties the said commission shall be author-
ized to employ the necessary clerical help, but the
said expenses for clerical help shall not exceed
in any year the sum of twelve hundred dollars
($1,200.00). In addition to the said clerical help
the said commission is authorized to employ an
expert accountant whenever it shall deem the
same necessary for the purpose of making the ex-
amination above provided for, and for the estab-
lishing of such uniform system of accounting.
Acts 1918, pp. 155, 157.
§ 2158(73). Recommendations of changes in
laws. — It shall make a careful study of all the
laws governing the various State departments, and
the various State institutions, and shall recom-
mend to the General Assembly such changes in
the laws as it sees fit, and shall prepare a bill or
bills covering these changes in the laws govern-
ing such institutions, and submit the same to the
General Assembly herein provided. Acts 1918,
pp. 155, 157.
[498]
§ 2158(74)
BOARD OF PUBLIC WELFARE
§ 2158(82)
§ 2158(74). Rules and sittings. — The commis-
sion shall have the right to adopt such rules or
regulations governing its investigations as it shall
deem best, and to sit at such times and places as
it shall deem necessary. Acts 1918, pp. 155, 157.
§ 2158(75). Tax-rate advice. — The said com-
mission shall aid and advise the Governor in fix-
ing each year the tax rate to be levied for the
support of the government. Acts 1918, pp. 155,
157.
§ 2158(76). Pay per diem and expenses. — The
members of said commission from the General
Assembly shall receive for their services rendered
as members of such commission the same per
diem as is allowed to the members of the Gen-
eral Assembly for each day's services in the dis-
charge of their duties, and the actual necessary
expenses incurred by them while in the discharge
of such duties, which expenses shall be paid by
the treasurer upon the warrant of the Governor
upon itemized statements furnished to the Gov-
ernor and attached to such warrants. Acts 1918,
pp. 157, 158.
TWENTY-SECOND TITLE.
Board of Public Welfare.
* CHAPTER 1.
Establishment of Board; Powers; Duties, etc.
§ 2158(77). Board of public welfare; number
and appointment of members; term. — A Board
of Public Welfare is hereby established, consist-
ing of five members, who shall be appointed by
the Governor. The terms of the members of the
said Board of Public Welfare first appointed shall
be one, two, three, four, and five years, respec-
tively, commencing on the first day of October,
nineteen hundred and nineteen; and thereafter
upon the expiration of the term of a member of
said Board, his successor shall be appointed for
a term of five years. Appointments to fill vacan-
cies caused by death, resignation or removal, be-
fore the expiration of such term, shall be made
for the residue of such terms in the same man-
ner as herein provided for original appointments.
No director, officer or employee of an institution
subject to the terms of this Act shall be appointed
a member of such Board, nor any kinsman by
blood or marriage to such officer. Acts 1919, pp.
222, 223.
As to the penalty for the violation of this act, see §
339 (1) P. C.
§ 2158(78). Removal of members of board. —
The members of said Board of Public Welfare
may at any time be removed by the Governor in
'his discretion. The failure of any members of
said Board to attend at least one meeting thereof
during any year unless excused by formal vote
of the Board, may be construed by the Governor
as a resignation of such non-attending member.
Acts 1919, pp. 222, 223.
§ 2158(79). Meetings of board; rules and regu-
lations; compensation. — The Board shall hold
regular meetings in May and November in each
year and oftener, as may in their opinion be re-
quired. The Board shall make such rules and
orders for the regulation of its duties as it may
deem necessarv. The members of the Board
shall receive no compensation for their services
except as hereinafter provided. Acts 1919, pp.
222, 223.
§ 2158(80). Appointment of a secretary; sal-
ary and expenses. — The said Board shall ^appoint
a secretary, assistant secretary, and such other
clerks as shall be necessary, who shall be paid
for their services, in addition to necessary trav-
eling expenses, annual salaries to be fixed by said
Board. No person, while a member of the Board,
or within twelve months of retirement therefrom,
shall be eligible for any paid office on said Board.
Acts 1919, pp. 222, 224.
§ 2158(81). Appropriation for maintenance of
board. — The General Assembly shall appropriate
annually for the maintenance of the office of said
Board, including the salaries and traveling ex-
penses of the members of the Board, its employ-
ees, and other expenses, such sum as may be nec-
essary to carry out the purposes of this Act, to be
paid out of any funds in the State treasury not
otherwise appropriated. Acts 1919, pp. 222, 224.
§ 2158(82). Duties of board, certain officers
and persons to furnish information and statistics
and allow access to inmates and departments;
literature to be distributed. — The duties of the
Board shall be strictly visitorial and advisory,
without administrative or executive powers ex-
cept as may afterwards be provided by law. It
is hereby empowered and authorized, and it shall
be a duty as a whole or by committee of its
members, or by its secretary or assistant secre-
tary to visit, inspect and examine once a year, or
oftener, county jails, the State, county, munici-
pal and private institutions and organizations
which are of an eleemosynary, charitable, cor-
rectional or reformatory character, or which are
for the care, custody or training of the orphaned,
defective, dependent, delinquent or criminal
classes; it shall also inspect and report upon the
workings and results of chartered or private in-
stitutions or associations or organizations engaged
in the care and protection of homeless, depend-
ent, defective, and delinquent children or adults.
The Board shall make reports regarding the con-
dition of said institutions or associations, the care
of their inmates, the efficiency of their adminis-
tration and such other matters pertaining thereto
as it may deem proper. All reports shall be duly
signed and filed in the office of the Board. The
officers and all other persons in charge of, or con-
nected in any way with the administration or
management of such public institutions are hereby
required to furnish to the Board, or its commit-
tee, secretary or assistant secretary, such infor-
mation and statistics as may be required, and
allow said Board, its committee, secretary or as-
sistant secretary or other agents of the Board,
full and free access to all inmates and depart-
ments of such institutions, and to all their rec-
ords for the purpose of this Act. With a view
of increasing the efficiency of public and private
officials and bringing institutions for the care and
custody of the dependent, defective, and delin-
quent classes up to a high and modern standard,
the Board shall cause to be distributed among
such officials, literature bearing upon subiectis
embraced under this Act. The Board shall bring
prosecutions for fraudulent solicitation or misap-
propriation of charitable funds and for gross neg-
lect or mistreatment of wards or inmates in m-
[499 ]
§ 2158(83)
COMMUNITY SERVICE COMMISSION
§ 2158(94)
stitutions or in the care of agencies affected by
this Act. Acts 1919, pp. 222, 224.
§ 2158(83). Reports of superintendents and
chief officers; suggestions to certain officials. —
Every superintendent or chief officer having in
charge any institution or organization within the
provisions of this Act shall make quarterly re-
ports to the Board, containing such information
and in such form as said Board may prescribe.
Acts 1919, pp. 222, 225.
§ 2158(84). Plans for new jails, etc., submitted
to board. — All plans for new jails, reformatories,
almshouses, and buildings for charity, supported
by public funds or public collections, shall, before
the adoption of the same by the State, county, city
or voluntary authorities, be submitted to said
Board, who shall promptly return the same with
such suggestions and recommendations as it may
deem reasonable and proper. Acts 1919, pp. 222,
225.
§ 2158(85). Local committee of visitors; duties
of committee. — For each county or city there may
be appointed by the said Board a local commit-
tee of visitors, consisting of three persons, one
of whom shall be a member of the local Board
of Health, and one of whom may be a woman, to
aid the Board in its work. The duty of said Com-
mittee shall be to visit and inspect as often as it
may deem advisable or upon request of the Board,
and to report annually, or upon request to the
Board any matters of importance respecting the
jails and almshouses and private institutions and
agencies in such county or city, and to encour-
age and aid the local authorities in maintaining
such institutions in an efficient manner. The
members of such committees shall receive no
compensation, but shall be provided by said Board
with all necessary stationery and postage, and
forms for keeping proper records and making
their reports to the Board. Acts 1919, pp. 222,
226.
§ 2158(86). Board to collect certain statistics.
— The said Board shall collect, compile, and pub-
lish statistics and information regarding the de-
pendent* defective and delinquent classes both
in and out of institutions, within the State, and
such other data as may be of value in assist-
ing the officials of the institutions and organiza-
tions involved in the Act in the performance of
their duties. Acts 1919, pp. 222, 226.
§ 2158(87). Annual report to the Governor;
copy of report filed with clerk of each county. —
The Board shall annually, not later than May
first in each year, make to the Governor a full
and complete report of its acts and doings dur-
ing the preceding year, stating in detail all ex-
penses incurred all officers and agents employed,
and showing the actual conditions, care of in-
mates, and other pertinent matters, with such
recommendations as may be deemed proper, to
be submitted to the General Assembly. The
Board shall file a copy of said annual report in
the office of the clerk of court in each county,
and in the office of the clerk of each municipal-
ity in this State, and shall also transmit copies
thereof to each institution embraced by this Act,
and to each known charitable institution or or-
ganization. The said Board shall make report
as often as once a month to the State Board of
Health on all matters that are subject to the ju-
risdiction of said Board of Health, so that they
may be kept constantly informed of these mat-
ters. Acts 1919, pp. 222, 226.
§ 2158(88). Election of chairman; payment of
necessary expenses. — The said Board shall an-
nually elect from its members a chairman. The
salaries of the secretary, assistant secretary, and
other necessary expenses incurred by the said
Board shall be paid out of the public treasury,
upon the order of the chairman. Acts 1919, pp.
222, 227.
§ 2158(89). Board to make investigations;
powers. — Whenever the Governor considers it
proper or necessary to investigate the manage-
ment of any institution receiving aid from the
State and required to be inspected under the pro-
visions of this Act, he may direct the Board of
Public Welfare, or any committee thereof desig-
nated by the Governor, to make said investiga-
tion, and said committee as a board shall have the
power to administer oaths and to summon offi-
cers, employees or other persons to attend as wit-
nesses, and to enforce their attendance, and to
compel them to produce documents and give evi-
dence. Acts 1919, pp. 222, 227.
§ 2158(90). Laws not repealed. — Nothing in
this Act shall be construed to interfere, conflict
or repeal Penal Code, §§ 845(1), et seq., or any part
thereof, known as the "Veazey Inspection
Law." Acts 1919, pp. 222, 228.
TWENTY-THIRD TITLE.
Community Service Commission.
CHAPTER 1.
Commission Created; Membership; Duties, etc.
§ 2158(91). Commission Created. — The Com-
munity Service Commission is herein created and
established for the purposes hereinafter named.
Acts 1919, p. 228.
§ 2158(92). Membership. — The said Commis-
sion shall consist of two members, one of whom
shall be a woman, from each congressional dis-
trict. The Governor shall be ex-officio member
and ex-officio chairman thereof, with authority
to appoint an active chairman from the member-
ship of said Commission. Acts 1919, p. 228.
§ 2158(93). Term of office.— The members of
said Commission shall be appointed by the Gov-
ernor, and shall hold office for a term of two years
from the date of their appointment. The Gov-
ernor shall have the power to remove at any time
any appointed member thereof, and to fill any
vacancy that may occur in said Commission.
Acts 1919, p. 228.
§ 2158(94). Powers of the commission. — Said
Commission shall have the power and authority
to consider and investigate all problems of recon-
struction and matters involving the general pub-
lic welfare; to aid in securing employment for
returned soldiers and sailors, and to initiate and
assist movements designed for their welfare; to
initiate plans and policies for voluntary efforts
designed to promote the public interest and wel-
fare in the entire State or any part thereof; to
[500]
§ 2158(95)
VETERANS' SERVICE BUREAU
§ 2158(105)
promote such plans and policies through organi-
zation, publicity, advice and supervision, and to
co-operate with similar efforts and projects ini-
tiated or carried on by official agencies of the
State, by other States and by the federal gov-
ernment; and to have general supervision of the
organizations and administrative methods of the
Community Boards hereinafter provided for.
Acts 1919, pp. 228, 229.
§ 2158(95). Officers, meetings, — Said Com-
mission shall have the power to elect its own
officers, other than its chairman, to .prescribe
their duties and terms of office, to adopt its own
rules and procedure, to determine the times and
places of its meetings, and to designate individ-
uals or appoint committees outside of its own
membership for purposes consistent with its pow-
ers and duties as defined by this law. Acts 1919,
pp. 228, 229.
§ 2158(96). Community boards; term of mem-
bers.— Said Commission may establish Community
Boards in and for all the counties and municipalities
of the State. Said Community Board shall consist
of five, seven, or nine members, and shall be ap-
pointed by the Community Service Commission.
Said members shall be appointed for one year and
until their successors are appointed. Said Com-
munity Service Commission shall fill any
vacancies that may occur. Acts 1919, pp. 228, 229.
§ 2158(97). Duties and powers. — It shall be the
duty of said Community Boards to assist and co-
operate with the Commission in all its authorized
activities, in such manner and to such extent as
said Commission may require; to consider and in-
vestigate all matters of local character which in
their judgment involve or affect the welfare of
their respective counties or the people thereof, in
whole or in part, to advise, consult, aid, and co-
operate with county, township, city, village and
school officers with regard to such matters; to re-
commend actions and policies to the commission;
to initiate plans and policies for voluntary efforts
designated to promote public interest and welfare
in their respective counties or parts thereof; to
promote such plans and policies through organiza-
tions, publicity, advice and supervision; to co-
operate on such behalf with similar efforts and
projects carried on by or through other agencies,
voluntary or official, within such counties; to
promote the erection of community houses or
other memorials for soldiers and sailors. Acts
1919, pp. 228, 229.
§ 2158(98). Election of officers; rules and pro-
cedure, etc. — Said Community Boards shall have
the power to elect their own officers, prescribe
their duties and terms of office, to adopt their own
rules and procedure, to determine the times and
places of their meetings, and to designate individ-
uals or appoint committees outside their own
memhership, for purposes consistent with their
powers and duties as defined by this Act, in so far
as all such actions shall be consistent with the
rules and instructions of this Commission. Acts
1919, pp. 228, 230.
§ 2158(99). No compensation. — Members of
the Commission and Community Boards shall
serve without compensation. Acts 1919, pp. 228,
230.
§ 2158(100). State at no expenses for agents,
etc. — The Commission may employ such agents,
assistants, clerical force and specially qualified
persons as it may find necessary or expedient, but
the State of Georgia shall be at no expense there-
for. Acts 1919, pp. 228, 230.
§ 2158(101). Office at state capitol. — The
keeper of Public Buildings may provide suitable
office room in the State Capitol for said Commis-
sion, and may also furnish such necessary office
furniture, stationery and supplies as shall be re-
quisitioned by said Commission with the approval
of the Governor. Acts 1919, pp. 228, 230.
TWENTY-FOURTH TITLE.
Veterans' Service Bureau.
CHAPTER 1.
Bureau Created; Director; Duties, etc.
§ 2158(102). Bureau created; director. — A serv-
ice bureau is hereby created to be composed of one
director who shall be paid a salary of twenty-four
hundred ($2400.00) dollars per annum. Acts 1923,
p. 121.
§ 2158(103). Appointment. — Said director shall
be appointed by the Governor and be chosen from
ex-service men who were in the military or naval
service of the United States during the period be-
tween April 6th, 1917, and November 11th, 1918,
and honorably discharged therefrom. Acts 1923,
pp. 121, 122.
§ 2158(104). Location of bureau; duties of di-
rector; term of office. — Said service bureau shall
be located in the Pension Commissioner's office
and the duties of said director shall be the dis-
semination of information, regarding the Federal
legislation providing for compensation, hospitali-
zation and vocational training for disabled ex-
service men and women, to all ex-service men
and women in this State, and to assist all disabled
ex-service men and women in securing the benefits
provided for them by the Federal legislation; the
said director shall work in co-operation with the
American Legion Department of Georgia in dis-
semination of said information and in assisting the
disabled ex-service men; the term "ex-service men
and women" to include those who were in the
service of the army, navy or marines of the United
States during the World War or the Spanish-
American War. The term of the office of said
director shall be for two years beginning from the
date of the approval of this Act by the Governor.
Acts 1923, p. 121.
§ 2158(105). Duty as to United States veterans'
bureau.— It shall be the duty of the director of the
service bureau to report to the United States
Veterans' Bureau the names of all ex-service men
who are in his opinion receiving compensation
that they are not entitled to receive together with
his reasons therefor. Acts 1923, p. 121.
[501]
§ 2158(106) GEORGIA STATE CANAL AND WATERWAY COMMISSION § 2158(112)
TWENTY-FIFTH TITLE.
Board of Harbor, Port and Terminal
Commissioners.
CHAPTER 1.
Board Created; Membership; Powers, etc.
§ 2158(106). Board of commissioners created;
members; term; compensation; quorum; secretary
and clerks; officers; meetings. — There is created
and established in the State of Georgia a Board of
Harbor, Port and Terminal Commissioners for
the harbors and terminals of the State of Georgia,
which shall be known as the "Board of Harbor,
Port and Terminal Commissioners for the State of
Georgia." Said Board shall consist of five mem-
bers, composed of the Governor of Georgia, the
Secretary of State, the Commissioner of Agricul-
ture, and one member to be nominated by the
Manufacturers' Association of Georgia, and ap-
pointed by the Governor, and one member nomi-
nated by the Farmers' Union of Georgia, and ap-
pointed by the Governor. Through death or re-
moval from office of any one of said Commis-
sioners, a successor shall be appointed by the
Board for the unexpired term. The commis-
sioners appointed shall serve for a term of five
years. Said commissioners shall serve without
compensation but shall be reimbursed for all
necessary expenses. A majority of said commis-
sioners shall constitute a quorum for the transac-
tion of business, and the commissioners shall
employ a secretary and such other clerks as may
be necessary to keep their minutes and entries of
all orders, regulations, and transactions of said
commissioners, in a book or books to be kept for
that purpose, which said minutes and entries shall
be submitted to the inspection of any person or
persons who shall desire to see and peruse the
same. Said Board shall elect out of its own num-
ber a President, a Vice President, a Secretary,
whose duties shall be those usual to such officers.
Said Board shall meet at regular sessions, not less
than once a month, and at such other times as the
President of the Board shall convene them, or on
written request of three members. Acts 1921, p.
197.
§ 2158(107). Powers. — Said Board shall have
the power and authority to have made any and all
surveys, maps and drawings of all ports and termi-
nal facilities as they exist, and may hereafter exist
in and along the Atlantic coast of the State of
Georgia; also to examine into and ascertain the
immediate and prospective tonnage, and the
character of the same that moves or may hereafter
move by way of such ports and terminal facilities.
Acts 1921, p. 197.
§ 2158(108). Investigations; report. — Said
Board shall examine into and cause to be made,
a survey of the warehousing and storage facilities
as in their opinion may seem needful for the pur-
pose of storing merchandise and farm products,
and the marketing of same, and marketing facili-
ties as they exist and any and all investigations
tending toward development of such shipping,
storing, and marketing facilities as the board may
deem needful to the best interest of the people of
Georgia. It shall be the duty of this Board to re-
port at the next session of the Legislature their
findings with recommendations as to the future
course to be pursued. Acts 1921, p. 197; 1924, p.
118.
TWENTY-SIXTH TITLE.
Georgia State Canal and Waterway
Commission.
CHAPTER 1.
Commission Created; Membership; Duties, etc.
§ 2158(109). Commission created. — There is
hereby created a permanent Commission to be
known as "the Georgia State Canal and Waterway
Commission." Acts 1921, pp. 159, 163.
§ 2158(110). Members; term.— The sa'id Com-
mission shall consist of three members, all of
whom shall be citizens of the State of Georgia.
These three members shall be appointed by the
Governor within thirty days from the passage of
this Act, and shall serve for a term of two years.
In addition to the three members so named, the
Governor of the State shall ipso facto be a mem-
ber of the Commission; shall be entitled, to partici-
pate in its deliberations, and to vote on all ques-
tions coming before it. One of the three nominees
of the Governor shall be designated by him as
Chairman of the said Commission. Acts 1921, pp.
159, 163.
§ 2158(111.) Receipts and expenses. — All
monies paid out by the said Commission shall be
paid through its Chairman on vouchers approved
by the Chairman, or by a majority of the Commis-
sion, and the Commission shall report to the next
Legislature a full statement of all its receipts and
expenditures. No member of the Commission shall
receive any compensation. The said Commission
shall be and is authorized to receive from munici-
palities, counties, commercial and civic organiza-
tions, and other corporations, individuals or other
bodies, any voluntary contributions towards carry-
ing on its work and to expend the same. But the
Commission shall report to the Legislature a full
statement of all such receipts and expenses. Acts
1921, pp. 159, 164.
§ 2158(112). Duties.— The duties of the said
Commission shall be:
a. To thoroughly investigate and report on the
lands and property owned by the State of Georgia
at or adjacent to the Atlantic terminus of the pro-
posed canal; and to recommend to the next Legis-
lature such action in regard to the same, and such
improvement, handling, disposition or develop-
ment of the same as to them may seem wise.
b. The said Commission shall in every proper
way call to the attention of Congress and other
Federal authorities, the importance of, and neces-
sity for, the prompt construction of the said canal
and waterway; and shall in every proper way urge
that the same be constructed at the earliest possi-
ble date. It shall, moreover, co-operate with and
aid in every way possible, any United States engi-
[ 502]
§ 2158(113)
STATE BOARD OF FORESTRY
§ 2159(114^)
neers or other Federal authorities who may be
charged with the survey or the construction of the
said canal; and all officers and employees of the
State are hereby authorized and directed to co-
operate and aid in every proper way in such survey
and construction.
c. The said Commission shall further in every
proper way endeavor to bring to the attention of
the nation as a whole, and particularly to the atten-
tion of the inhabitants of the States adjoining the
said canal and waterway, and the State's tributary
to the rivers flowing into the same, and the States
adjoining the Mississippi River and its tributaries,
the advantages of the construction of the said
canal. And it shall present to, and urge upon, the
Legislators of said States the appointment of
Commissions or Representatives to co-operate
with this Commission in the effort to secure the
early construction of the said canal and waterway.
To that end, the said Commission shall co-operate
with any and all Commissions so appointed by
other States. And through organizations created
for the purpose of developing the waterways of
the United States and its rivers, harbors and water
transportation, and other similar organizations,
it shall endeavor to focus national attention upon
the advantages which will follow the construction
of the said canal and waterway, to arouse national
interest in the effort, and to insure early considera-
tion and early action by Congress upon this
matter.
d. The said Commission shall make a full report
to the next session of the Legislature as to what it
has done, with a full statement of its receipts and
expenditures. Acts 1921, pp. 159, 164.
§2158(113). Waterway development. — The
said Commission shall also thoroughly investigate
and report on the possibilities of waterway develop-
ment in any section of Georgia and shall make pub-
lic its views and findings and make such recommen-
dation with reference thereto as it shall deem .fit,
and shall from time to time urge upon Congress
such Federal aid in the waterway development of
the State as shall seem to the Commission desir-
able. Acts 1921, pp. 159, 166.
TWENTY-SEVENTH TITLE.
State Board of Foresty.
CHAPTER 1.
Board Created; Membership; Duties, etc.
§ 2158(114). Board created; personnel; meetings;
terms of office; vacancies; compensation. — There
is hereby created and established a State Board of
Forestry to consist of the Governor, Secretary of
State, State Geologist, Director of Extension at the
State College of Agriculture, and of five citizens
of the State who shall be appointed iby the Gov-
ernor as follows: One representing the Women's
Civic Organizations of the State, and four rep-
resentatives of the farming, lumbering, lumber
manufacturing, naval stores, or timber land own-
ing interest within the State of Georgia, who will
be named with reference to geographical location.
The meetings of said Board shall be held at the call
of the Secretary of said Board with and by the ap-
proval of the President and at the place or places
designated by him. The term of office of the rep-
resentative of Women's Civic Organizations shall
be one year, beginning on January 1st and ending
December 31st, and the terms of office of the
other four citizens members on said Board shall
expire on the first day of January, 1927, 1928, 1929,
1930, respectively, the term of each to be desig-
nated by the Governor and their successors shall
be appointed by the Governor for terms of four
years, beginning on the day next following the
last day of the expired term, except that any per-
son chosen to fill an unexpired term shall be ap-
pointed only for the unexpired term of the mem-
ber whom he shall succeed. So far as possible all
appointees shall be selected with reference to their
knowledge of and interest in the production and
use of forest products in the industries of the
State.
The members of said Board shall receive no
compensation for their service as such, but they
shall be reimbursed for their reasonable expenses
while engaged in the performances of their duties
as members of said Board, out of the fund herein
provided, upon the certificate of the Secretary of the
Board, when approved by the Governor. The
Governor shall 'be ex-officio chairman and presi-
dent of said board, and the State Forester, herein
after provided for, shall serve as Secretary of said
Board, and shall be custodian of the books, rec-
ords and papers of the said Board, which he shall
keep at some point in Atlanta to be designated by
the Board.
The Board shall meet twice each year at Atlanta
and may meet at such other times and places as
may be designated by the Governor. Acts 1925, p.
199.
§ 2158(114^0. Duties; reports; fire control.. —
It shall be the duty of the Board provided for here-
in, to inquire into and make an annual report upon
forest conditions in Georgia, with reference to
preservation of forests, the effect of the destruc-
tion of forests upon the general welfare of the
State, and all other matters pertaining to the sub-
ject of forestry and tree growth, including recom-
mendations to the public generally as to reforesta-
tion, and approved methods of lumbering and tur-
pentining.
This report shall be made to the Governor, and
shall be given such distribution as the Board, in its
discretion, may think feasible. It shall further be
the duty of said State Board to report to each reg-
ular session of the Legislature the result of its
investigations, and to recommend necessary legis-
lation with reference to forestry, if any, and to
perform such other duties as may be imposed upon
it by laws.
It shall give such advice, aid, assistance, coopera-
tion as may be practicable to Georgia land owners
and forest users when requested, and promote, so
far as it may be able, a proper appreciation in this
State, among all classes of the population, of the
benefits to be derived from forest culture and pres-
ervation.
The Board shall have power to take action such
as may be reasonable and profitable to prevent and
suppress forest fires, to enforce any and all forest
[ 503 ]
§ 2158(115)
GEORGIA CHILDREN'S CODE COMMISSION
§ 2158(120)
fire laws, and may, with the approval of the Gover-
nor, apply such parts of the Forestry Fund as may
be necessary to such purposes, and to provide for
such fire control as it majr establish, either inde-
pendently, or in cooperation with the Federal
Government. Acts 1925, pp. 199, 201.
§ 2158(115). State forester; office.— The Board,
at its first meeting if practicable, and at all events
as soon as possible, shall employ -a State Forester,
who shall be a technically trained forester with at
least two years experience in technical and adminis-
trative work, and shall fix his compensation, and
bond, subject to the approval of the Governor.
Such person shall be charged with the duty of en-
forcing the provisions of this Act, and to perform
all other duties that may be designated by the
said" State Board of Forestry, and may be removed
by said Board if [he] it is, or becomes, in its
opinion, for any cause, unsuitable and incompetent.
The State Forester shall be provided with an
office at a point in Atlanta to be fixed by the
Board, and the furnishings of said office shall be
paid for upon the requisition of the Secretary of
the Board with the approval of the Governor.
Acts 1925, pp. 199, 202.
§ 2l58(115J/0. Acquisition of land— The Gov-
ernor is authorized upon the recommendation of
said Board, to acquire forest land by purchase ap-
proved by an Act of the Legislature, and to accept
gifts of land to the State, the same to be held and
administered by the State Board of Forestry as
State Forests, and to be used as to demonstrate
the practical utility of timber culture. Such gifts
must be absolute, except the mineral and mining
rights over and under said lands, (but no reserva-
tion of any timber in connection therewith, may be
reserved, and except for a stipulation that they be
held and administered as State Forests; and the
Attorney General is hereby directed to see that all
deeds of gift, or other grants to the State, of land
mentioned above, are properly executed and convey
good title before the gift is accepted. Acts 1925,
pp. 199, 202.
§ 2158(116). Policy of reforestation. — It is the
declared policy of this State to encourage reforest-
ation of cut-over lands, and timlber culture
generally, on all lands not better suited for farm-
ing or other purposes. Acts 1925, pp. 199, 203.
§ 2158(116^). Timber licenses; forestry fund.
— Occupation license or privilege tax required of
persons or corporations engaging in any business
dealing with timber or other products from the
forests of this State, shall be separately reported
by the official collecting the same, and when paid
into the treasury shall be kept in a separate fund to
be known as the State Forestry Fund, and the
same shall be used for the administration of this
Act, and the payment of the appropriations herein
made. All monies going into said fund are hereby
appropriated to said State Forestry Board for the
purpose of administering this Act. All necessary
expenses of the State Board shall be paid out of
said fund on the requisition of the Secretary of the
Board with the approval of the Governor.
Provided, however, that any sums so allocated
for any one calendar year not used by said Fores-
try Board in such year shall revert to and become
a part of the general funds in the State treasury
and thereby become available for payment of other
appropriations. Acts 1925, pp. 199, 203, 204.
§ 2158(117). Deputy forest wardens; arrests.
— All sheriffs, deputy sheriffs, constables, mar-
shals, farm demonstrators, and such other persons
as may be willing to serve without compensation,
and who may be appointed by the Governor, are
hereby declared to be deputy Forest Wardens, and
it shall be their duty to report to the said State
Board of Forestry, and to the Solicitor of the
County and Circuit in which the same occurs, any
violations of any provisions of this Act.
Upon the appointment of such persons as afore-
said, there shall be issued to each of them by the
Governor, a commission, for such term as the
Board may determine, clothing said Deputy Forest
Warden with authority to enforce the provisions
of this Act as herein provided and to make sum-
mary arrests for violations of the Fire laws of
Georgia as contained in Sections 227, 228, 229, and
230 of the Penal Code of 1910, and in case of such
arrests, such Deputy Forest Warden shall im-
mediately deliver the arrested party to the custody
of the sheriff of the County wherein offense was
committed. Acts 1925, pp. 199, 203.
§ 2158(117^). Effect of partial invalidity.— If
any section or part of this Act be declared uncon-
stitutional, the remainder of said Act shall not
thereby be affected but shall remain, in full force
and effect. Acts 1925, pp. 199, 204.
TWENTY-EIGHTH TITLE.
Georgia Children's Code Commission.
CHAPTER 1.
Commission Created; Membership; Duties, etc.
§ 2158(118). Commission created. — A Code
Commission is hereby created, to be known as the
Georgia Children's Code Commission. Acts 1922,
p. 71.
§ 2158(119). Duties.— It shall be the duty of
said Georgia Children's Code Commission to study
the existing laws of Georgia which in any way
affect child life; to study conditions of child wel-
fare in the State, to study the laws of other States,
and to consult authorities in this and other States,
and to draft for presentation to the succeeding
Legislatures such laws or amendments to the
existing laws as will better safeguard the welfare
of children in this State. Acts 1922, p. 71.
§ 2158(120). Membership. — Said Georgia Chil-
dren's Code Commission shall consist of ten mem-
bers, to be appointed by the Governor of the State
of Georgia, who shall hold their term of office for
five years, and until their successors are appointed,
and who shall consist of one Superior Court Judge,
one member of the House of Representatives, one
State Senator, and a member or representative
from each the following organizations: Federation
of Women's Clubs, State Council of Social
Agencies, State Board of Health, State Board of
[504]
§ 2158(121)
MANSION LEASE COMMISSION
§ 2158(124)
Public Welfare, State Federation of Labor, State
Department of Education, Georgia League of
Women Voters. Acts 1922, p. 71.
§ 2158(121). No compensation. — The members
of said Georgia Children's Code Commission are
not to be paid any salary or remuneration whatever
by the State of Georgia, nor are they to receive
any salary or remuneration from any one whatso-
ever, for their services. Acts 1922, p. 71.
§ 2158(122). Reports to General Assembly. —
Said Georgia Children's Code Commission shall
make their reports each year to the General As-
sembly of Georgia. Acts 1922, p. 71.
TWENTY-NINTH TITLE.
Mansion Lease Commission.
CHAPTER 1.
Commission Created; Membership; Duties, etc.
§ 2158(123). Commission created; members;
duties. — There is hereby created a Commission, to
be known as the Mansion Lease Commission,
nrhich shall be composed of the Governor of the
State, the Attorney General, the Secretary of
State, and a committee of two to be appointed from
the Senate, and three from the House, and three
business men from the State-at-large, all to be ap-
pointed by the Governor. At least five of these to
be so appointed shall reside without the city limits
of Atlanta, and having no business whatever in
said city, and who shall examine into, receive pro-
posals on and compile data looking to the lease of
the property, at the intersection of Peachtree and
Cain Streets in Atlanta, known as the "Governor's
Mansion." Acts 1921, p. 194.
§ 2158(124). Conditions of lease.— The afore-
said Commission shall have authority to receive
proposals for the lease of said property for a
term of years, not to exceed fifty years; it shall
prepare the terms under which all offers to lease
shall be made; it shall announce through the
newspapers of the State, in the form of news an-
nouncements, it is ready to receive such offers
to lease; said Mansion Lease Commission shall
make lease of said property as soon as possible
for the best interest and income therefrom for
the State, and they shall make contract thereof
and make return of their acts and doings to the
next General Assembly. Acts 1921, p. 194.
Law Library
University of Georgia
Athens, Ga.
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Mhens, w-
Do not remo
[ 505
THE CIVIL CODE
FIRST TITLE.
Of Persons.
CHAPTER 1.
Different Kinds of Persons, Their Rights
and Duties.
ARTICLE 1.
Of Citizens.
§ 2159. (§ 1802.) Natural and artificial persons.
— Persons are either natural or artificial. The
latter are the creatures of the law, and, except
so far as the law forbids it, subject to be changed,
modified, or destroyed, at the will of their crear
tor; they are called corporations.
Cross References. — See § 2239, and notes thereto.
As to who are corporations, see § 2188. As to citizens,
see 3 Enc. Dig. 125. As to persons, see § 5.
Editor's Note. — This section is constantly construed with
§ 2239 which pertains to the withdrawal of franchise. It
seems that the two sections cover practically the same
scope, except that this section is rather broader than §
2239. Indeed, in Central R., etc., Co. v. State, 54 Ga. 401, the
court stated that the legislature, in enacting § 2239, used
the word withdrawal with the idea that it included the
right expressly declared in this section to change and
modify as well as destroy.
Section Incorporated in Charter. — This section of the
code becomes, in substance, a part of the charter of a
corporation. Railroad Co. v. Georgia, 98 U. S. 359, 25 L
Ed. 185.
A corporation is a creature of the law under this section.
Eminent Household v. Thornton, 134 Ga. 411, 67 S. E.
849.
Application to Railroad. — Under this section a railroad
corporation may be confined to a particular route on cer-
tain prescribed conditions as to a portion of a line through
a given county. Macon & B. R. Co. v. Gibson, 85 Ga. 1,
11 S. E- 442.
Privileges Follow Charter. — Section 2239 provides that the
state may withdraw a franchise from a corporation; this
necessarily includes the right to withdraw any privilege
which is a part of the franchise, and this is especially true
in view of the language of § 2159 — this section. Railroad
Co. v. Georgia, 98 U. S. 359, 25 L. Ed. 185.
Dissolution by Congress. — Under this section a corpora-
tion of this state can not be dissolved by an act of con-
gress (bankruptcy). Holland v. Hevman & Bro., 60 Ga.
174, 180.
§ 2160. (§ 1803.) Division of natural persons.
— Natural persons are distinguished, according
to their rights and status, into: 1. Citizens.
2. Residents not citizens. 3. Aliens. 4. Persons
of color.
§ 2161. (§ 1804.) Who are citizens.— All citi-
zens of the United States, resident in this State,
are hereby declared citizens of this State.
Cross References. — See § 22.
As to citizens see generally, 3 Enc. Dig. 125. As to citi-
zens meaning qualified voters, see § 2166.
Distinction between Races Abolished. — Under this sec-
tion all distinction as to rights pertaining to citizenship
between the white and colored races are abolished. Smith
v. DuBose, 78 Ga. 413, 414, 3 S. E. 309.
§ 2162. (§ 1805.) Citizenship may be re-
nounced. — Except in time of war, every citizen
shall have the right of expatriation, with a view
to become a citizen of another State or Country
not a part of the United. States, with which this
State is at peace. The declaration or avowal of
such intention, accompanied by actual removal,
is held a renunciation of all his rights and duties
as a citizen.
§ 2163. (§ 1806.) When citizenship ceases. —
Until citizenship is acquired elsewhere, the per-
son continues a citizen of Georgia and of the
United States.
As to domicile of infants leaving state with stepfather,
see 3 Enc. Dig. 126.
§ 2164. (§ 1807.) Citizenship again acquired. —
If a person, having been thus expatriated, ac-
quires citizenship under some foreign power, he
and his descendants who go with him for the
purpose of residence can be citizens of this State
again only after a residence and taking the oath
of allegiance, as in case of other foreigners.
§ 2165. (§ 1808.) Rights of.— Among the rights
of citizens are the enjoyment of personal security,
of personal liberty, private property and the dis-
position thereof, the elective franchise, the right
to hold office unless disqualified by the Constitu-
tion and laws, to appeal to the courts, to testify
as a witness, to perform any civil function, and
to keep and bear arms.
Cross References. — As to right to sue and testify, see 3
Enc. Dig. 127, and § 2174 and notes thereto. As to effect
of Eaws of other states, see § 9. As to rights of citizens
generally, see §§ 6359 et seq.
Editor's Note. — This section should be read with § 2166
which pertains to the exercise of the rights of citizenship.
Citizens Entitled to Exercise All Their Rights. — All citi-
zens are entitled to exercise all their rights unless pro-
hibited by law. White v. Clements, 39 Ga. 232, 262.
Citizenship Confers Rights to Hold Office. — This section
provides that the right to hold office is one of the rights of
a citizen of this state. White v. Clements, 39 Ga. 232,
244.
When the Constitution declared that all persons born in
the United States, resident in this state, were citizens of
this state, they intended to say that the persons enu-
merated were declared to possess among their rights, "the
right to hold office," and that each of them was entitled
to exercise the right, unless "specially prohibited by law."
White v. Clements, 39 Ga. 232, 263.
Right of Negro to Hold Office. — By the constitution of
1868, the rights of the negro, are the same as the rights of
the white man. The constitution did not make race or
color a disqualification for office and as negroes are citi-
zens under this section and § 2166 it follows that they may
hold office. White v. Clements, 39 Ga. 232, 244, 257.
Negro Competent Witness.— The Act of 17th March, 1866.
Pamp. Acts, p. 239 made persons of color competent wit-
nesses in all cases. Clarke v. State, 35 Ga. 75, 80.
Rights of White Concubine Belong to Colored Concubine.
— Whatever rights and privileges belong to a white con-
cubine, or to a white woman and her bastard children, un-
der the laws of Georgia, belong also to a colored woman
and her children, and the rights of each race are controlled
and governed by the same enactments or principles of
law. Smith v. Dubose, 78 Ga. 413, 434, 3 S. . E- 309.
Negro Allowed to Obtain Title by Prescription. — By the
Laws of 1865-66, p. 239, a person of color was given cer-
tain rights among which was the right to a prescriptive
title bv adverse possession. Beatty v. Benton, 135 U. S.
244, 247, 10 S. Ct. 747, 34 E. Ed. 124.
Rights of Naturalized Citizens. — A naturalized citizen
stands upon the same footing as other citizens, and he has
all the rights anybody has — -unless it is otherwise specially
provided by law. White v. Clements, 39 Ga. 232, 257.
Limiting Rights of Citizen. — One who is a citizen does
not necessarily have the right to exercise all the rights
exercised by any citizen. It is within the power of the
people, by proper methods to deny to any citizen, any
right. But that denial must be made by the proper au-
thority. White v. Clements, 39 Ga. 232, 264.
[ 506 ]
§ 2166
RESIDENTS AND ALIENS
§ 2170
§ 2166. (§ 1809.) Exercise thereof.— All citi-
zens are entitled to exercise all their rights as
such, unless specially prohibited by law.
Construed With Section 2165.— Under § 2165 there is a
clear, definite specification of certain rights, which be-
long to citizens as such, and by § 2166 (this section) a
solemn declaration, that all citizens are entitled to exer-
cise all their rights, unless specially prohibited by law.
White v. Clements, 39 Ga. 232, 262.
§ 2167. (§ 1810.) Females. — Females are en-
titled to the privilege of the elective franchise, to
hold any civil office or perform any civil func-
tions in as full and complete a manner as the
same can be enjoyed by any male citizen of
this State; provided, however, females shall not
be liable to discharge any military, jury, police,
patrol or road duty. Acts 1896, p. 40; 1897, p.
130; 1908, p. 1107; 1912, p. 62; 1916, p. 43; 1918,
p. 118: 1921, pp. 106, 107.
Cross References. — As to rights of females to hold office
under former provisions of the code, see 3 Enc. Dig. 129.
As to admission of females to branch colleges, see § 1398.
As to female assistant physician in state sanitarium, see
§§ 1587:89.
Editor's Note — The Acts of 1921, p. 106, repealed in toto
the former provisions of this section and gave to female
citizens the same privileges in civil functions as are en-
joyed by male citizens, following the nineteenth amend-
ment of the Federal Constitution in this respect. How-
ever, females are still not liable to discharge any military,
jury, police patrol or road duty — here there has been nc
change in the section. Under the former provisions of this
section only a few offices were open to women, namely
state librarian, assistant physician at the Georgia state
Sanatarium, and the right to hold office in the Children's
court. By the Acts of 1912, p. 62 a female was made eligi-
ble to the office of commercial notary public, by the Acts
of 1916, p. 43 the office of clerk of ordinary was opened to
them, and by the Acts of 1918, p. 118, females were made
eligible as deputy clerks. But by the Acts of 1921, p. 1U6
females are allowed to hold any civil office. For status of
females prior to 1921, see 3 Enc. Dig. 129, 3 Cum. Disr
673.
§ 2168. (§ 1811.) Minors.— The law prescribes
certain ages at which persons shall be considered
of sufficient maturity to discharge certain civil
functions, to make contracts, and to dispose of
property. Prior to those ages they are minors,
and are for that disability unable to exercise
these rights as citizens.
Cross References. — For full treatment of infants gen-
erally, see 7 Cum. Dig. 186; 7 Enc. Dig. 292.
As to deeds of infants, see § 4184. As to infants con-
tracts, see § 4233. As to minor's marriage contract, see
§ 3008. As to defense of infancy for a tort, see § 4501.
Infants are citizens, and yet they have not the right to
vote and are denied by the law many civil rights; they can
not contract or make wills. White v. Clements, 39 Ga.
232, 261. Howard v. Tucker, 65 Ga. 323. As to wills see
§ 2169. (§ 1812.) Insane persons.— All persons
non compos mentis, either from birth or from
subsequent causes, constantly or periodically, or
from age, infirmity, drunkenness, or otherwise
incapable of managing their affairs, have their
persons and estates, or either of them, placed in
the control of guardians. Such persons retain all
the rights of citizens which they have the
capacity to enjoy, and which are compatible with
their situation.
Cross References. — See 7 Ctim. Dig. 402; 7 Enc. Dig. 533.
As to for whom trust estates may be enacted, see §
3729. As to power of insane person to make a will, see §
3840. As to contracts of insane persons, see § 4237.
Editor's Note. — In this section the word "may" or
"shall" should be inserted before the word "have" so that
the section would read, "may have (or shall have) their
persons or estates." This was evidently the intention of
the legislature for the section as it reads without the word
"may" or "shall" inserted is useless. All the Codes of
Georgia beginning with the Code of 1863, however, have
been examined and in none of them is found the correct
reading. For cases in which the word "may" was in-
serted by the judge in quoting the section, see Gray v.
Obear, 59 Ga. 675, 679. Sargent v. Burdett, 96 Ga. Ill,
118, 22 S. E. 667. For a case in which the word "shall"
was inserted by the judge in quoting the section, see
Coker v. Gay, 154 Ga. 337, 341, 114 S. E. 217.
Section 3089 provides for whom guardians "may" be ap-
pointed. Considering then, that section and this section it
seems that the word "may" would be the correct one to
read into the section.
In General. — This section prohibits persons non compos
mentis from exercising certain rights of citizens. White
v. Clements, 39 Ga. 232, 271.
Reserves the General Rights of Citizens. — This section
reserves the general rights of citizenship, while it takes
property away from the citizen; and this, too although the
citizen's own property, comes to him free of any trust or
any condition whatever. Gray v. Obear, 59 Ga. 675, 680.
Section 3729 to Be Construed with Section 2169.— Tn de-
termining the meaning of non compos mentis as used in §
3729 the court stated: "It does not matter that this sec-
tion (§ 2169) is placed in the code under the article "Citi-
zens." It is part of our law adopted by the legislature and
ratified by the Constitution of 1868. Gray v. Obear, 59 Ga.
675, 680.
Section Includes Residents and Non- Residents. — This sec-
tion is broad enough to cover resident and non-resident
persons who are non compos mentis. Coker v. Gay, 154 Ga.
337, 341, 114 S. E. 217.
Degrees of Non Compos Mentis. — It is clear from this
section, that the statute law defines the word non compos
mentis as meaning unsoundness of mind in many degrees.
Gray v. Obear, 59 Ga. 675, 679.
Same — Mental Incapacity to Manage Ordinary Affairs. —
Under the code there are various degrees of unsoundness
of mind, one of which, is incapacity to manage the ordinary
business of an ordinary person in the affairs of life. This
degree from whatever cause occurring, will uphold the
creation and the continuance of a trust. Gray v. Obear.
59 Ga. 675.
It will be observed from this section that it is the men-
tal incapability, and not the physicial weakness resulting
from old age, rendering one incapable of managing his es-
tate, which makes him subject to have a guardian ap-
pointed to take charge and manage his estate, for instance
minors, and persons non compos mentis, and persons, who
on account of mental weakness, intemperate habits, are
unfit to be trusted with the control and management of
their property. For a person so situated, a guardian may
be appointed for the preservation and protection of his
estate. Sargent v. Burdett, 96 Ga. Ill, 118, 22 S. E. 667.
ARTICLE 2.
Residents and Aliens.
§ 2170. (§ 1813.) Rights of citizens of the
United States. — Such citizens of the other States
of this Union as are recognized as citizens of the
United States by the Constitution thereof shall be
entitled, while residents of this State, to all the
rights of citizens thereof, except the elective
franchise and. the rights to hold office, and to per-
form such civil functions as are confined by law
to citizens of this State.' Acts 1785, Cobb, 364.
As to who are citizens of Georgia, see § 2161.
Editor's Note. — It is necessary in reading this section to
understand the difference between a property right of the
state which it can confer on its citizens if it so desires and
withhold from residents, and the rights or privileges
of citizens which it can not withhold from citizens of
other states except insofar as this section allows. The
difference between the two is clearly shown in Silver
v. State, 147 Ga. 162, 93 S. E. 145.
Right of Residents Fixed by this Section.— The right ol
persons in this state, other than citizens of this state are
fixed by this section and § 2173. Silver v. State, 147 Ga.
162, 164, 93 S. E. 145.
Property Right of Citizen of One State Not Acquired by
Citizen of Another State.— The right which the citizens of
the state acquire for the taking and cultivation of fish ^ is
a property right, and not a mere privilege or immunity
[507]
§ 2171
OF PERSONS OF COLOR
§ 217S
of citizenship, and does not vest the citizens of one State
with any interest in the common property of citizens of
another state. Silver v. State, 147 Ga. 162, 167, 93 S. F-
145.
Section 9 Acts 1915 Not Amendatory. — Section 9 of the
Acts of 1915 which was repealed by Acts 1924, p. 101 codified
as §§ 621 (1) et seq. of this code, which provided that any
person not a citizen of this state who shall catch any
oysters, fish, etc., shall be guilty of a misdemeanor, is
not amendatory and does not purport to be of this section.
Silver v. State, 147 Ga. 162, 164, 93 S. F. 145.
§ 2171. (§ 1814.) Aliens.— Aliens are the sub-
jects of foreign governments, not naturalized un-
der the laws of the United States.
§ 2172. (§ 1815.) As to persons. — The jurisdic-
diction of this State and its laws extends to all
persons while within its limits, whether as citi-
zens, denizens, or temporary sojourners.
For similar provisions, see § 22 of both the Civil and
Penal Code. As to state jurisdiction generally, see 10 Cum.
Dig. 428, 11 Fnc. Dig. 807.
Extends to All Persons Within Limits of Government. —
All persons found within the limits of a government, are
to be deemed so far citizens thereof, so that the right of
jurisdiction, civil and criminal, will attach to such per-
sons. Molyneux v. Seymour, 30 Ga. 440; Adams v. I(amar,
8 Ga. 83; Dearing v. Bank, 5 Ga. 497.
Yet this jurisdiction is to be so exercised as to conclude
by judgment none but those who are parties. Dearing v.
Bank, 5 Ga. 497; Adams v. Lamar, 8 Ga. 83.
And this jurisdiction extends only where it is not sur-
rendered or restrained by Constitution of United States.
Johnston v. Riley, 13 Ga. 97, 98.
Jurisdiction of Non-residents — Process. — Any court of any
county of this state which can serve process on a non-
resident, traveling through the state, acquires jurisdiction
of his person. Campbell v. Campbell, 67 Ga. 423, 426.
Same— Jurisdiction of Person or Property.— Where the
court gets jurisdiction of the person or property of a non-
resident, it will retain it to administer justice to its own
citizens. Callaway v. Jones, 19 Ga. 277.
The courts have jurisdiction of a non-resident who owns
property in a state, altho he does not come within terri-
torial limits. Molyneux v. Seymour, 30 Ga. 440.
A court has no jurisdiction over a case in which, neither
of the parties is, or has ever been in the State, or a citi-
zen, or a resident of the state, or the owner of property in
the state. House v. House, 25 Ga. 473.
Same— Persons Passing Through State.— A citizen of an-
other State, passing through this, may be sued in this, and
in any county of this State in which he may happen to
be at the time when sued. Murphy v. Winter & Co., 18
Ga. 690.
Same— As to Foreign Executors.— Foreign executors or
administrators coming within jurisdictional limits of the
state are liable to be sued here by creditors, or to be
brought to an account by legatees or distributees. John-
son v. Jackson, 56 Ga. 326, 328. For a full treatment of this
subject, see 5 Fnc. Dig. 850. As to preventing removal of
assets from state, see § 4103.
Exemption from Service Must Be Claimed.— Service on
garnishee temporarily sojourning here as suitor in court
was voidable, yet when there was no objection made to
the service and no answer filed at either return or second
term, default judgment was valid. Thornton v. American
Writing Machine Co., 83 Ga. 288, 9 S. F. 679.
A non-resident invoking aid of court will be afforded as
full justice as is consistent with the laws and policy of the
state. Reeves v. So. Ry. Co., 121 Ga. 561, 49 S. F. 674;
Seaboard Air-Line Ry. v. Burns, 17 Ga. App 1 86 S e'
270.
Voluntary Attendance to Answer for Misdemeanor Is
Not Privileged.— A non-resident of the state, voluntarily
attending upon a city court to answer to an accusation for
a misdemeanor against him is not privileged from arrest
under civil process nor exempt from service of civil proc-
ess upon him. Rogers v. Rogers, 138 Ga. 803, 76 S. F. 48.
Concurrent Jurisdiction of State and Federal Courts —
When the Courts of this State and the Courts of the United
States have concurrent jurisdiction over the subject-mat-
ters and parties to a controversy, that tribunal which first
actually takes the jurisdiction will retain it. Hines &
Hobbs v. Rawson, 40 Ga. 356.
§ 2173. (§ 1816.) Rights of aliens as to realty.—
Aliens, the subjects of governments at peace
with the United States and this State, so long as
their governments remain at peace, shall be en-
titled to all the rights of citizens of other States
resident in this State, and shall have the privi-
lege of purchasing, holding, and conveying real
estate in this State. Acts 1785, Cobb, 364;' Acts
1849, Cobb, 367.
Cross References. — See note to § 2170.
As to aliens generally, see 1 Cum. Dig. 389. As to right
of non-resident to procure oyster beds in this state, see
§ 1939.
Editor's Note. — This section and § 2170 must be con-
sidered together, as this section confers on aliens the same
rights as are given to citizens of other states by § 2170.
§ 2174. (§ 1817.) Rights to sue and testify.—
The citizens of other States of the United States,
or of foreign States at peace with this State, and
friendly Indians, shall by comity be allowed
the privilege of suing in our courts or giving evi-
dence therein, so long as the same comity is ex-
tended in their courts to the citizens of this State.
For full treatment of comity of states, see § 9 and notes
thereto. See also 3 Cum. Dig. 793; 3 Enc. Dig. 239.
§ 2175. (§ 1818.) Liens. — Aliens may receive
and enforce liens Iby mortgage or otherwise on real
estate in this State. Acts 1785, Cobb, 364.
§ 2176. (§ 1819.) Militia duty.— Residents not
citizens and resident aliens shall not be liable to
militia duty, except in so far as repelling local in-
vasions or suppressing insurrections. Acts 1818,.
Cobb, 367.
ARTICLE 3.
Of Persons of Color.
§ 2177. (§ 1820.) Who are persons of color. —
All negroes, mulattoes, mestizos, and their de-
scendents, having one-eighth negro or African
blood in their veins, shall be known in this State
as persons of color. Acts 1865-6, p. 239.
As to gifts for public parks being limited to one race
only, see § 890.
In General. — A person having one-eighth of African blood
in his veins is a person of color. White v. Clements, 39
Ga. 232.
Race May Be Proved by Reputation. — The race of a
person may be proved by reputation. White v. Clements,
39 Ga. 232, 242.
§ 2178. (§ 1821.) Husband and wife, when.—
Persons of color living together on the 9th day
of March, 1866, as husband and wife, sustain
that legal relation to each other, unless a man then
had two or more reputed wives, or a woman two
or more reputed husbands. In such event, the man
shall immediately select one of his reputed
wives, with her consent, or the woman one of her
reputed husbands, with his consent, and the cere-
mony of marriage between these two shall be
performed. If such man thus living with more
than one woman, or such woman living with
more than one man, failed or refused to comply
with the provisions of this section, he or she is
subjected to be prosecuted for the offense of for-
nication, or for fornication or adultery, or for-
nication and adultery, and, punished accordingly-
Acts 1865-6, p. 239.
For full treatment of this section, see 9 Fnc. Dig. 192.
Purpose of Section. — This section was intended to put an
end to living in concubinage of persons of color, and to
establish those marital relations between them which their
freedom permitted and morality and law required, there-
fore, if they continued to live as man and wife on the 9th
[508]
§ 2179
OF DOMICILE, MANNER OF CHANGIN
§ 2181
of March, 1866, by virtue of this section they became so
without any formal ceremony. Williams v. State, 67 Ga.
260. See also Rhodes v. Williams, 143 Ga. 342, 85 S. E.
105.
Marriages Legal, if Parties Lived Together at Time of
Act — Bigamy May Be Predicated on It. — Even if a mar-
riage between persons of color in December 1865, was il-
legal, which is by no means apparent, yet, if they lived
together as man and wife at the date of the Act of 1866
(this section) their marriage relation was thereby estab-
lished, and bigamy could be predicated thereon. Kirk v.
State, 65 Ga. 159.
This section confirms, for all civil purposes, the marriage
of persons of color, living together as man and wife at the
date of this act, and if, after said, act, such persons con-
tinue to live together as man and wife, it will be bigamy
for one of them to marry a third person knowing that
the wife or the husband, thus made by this section a
lawful wife or husband, is still living, and is still the law-
ful wife or husband. King v. State, 40 Ga. 244.
Same — Subsequent Marriage Void. — This section declares
that persons of color living together on the 9th of March,
1866, shall be husband and wife, and shall sustain that legal
relation to each other. The subsequent marriage of defend-
ant was void and hence his second wife was a competent
witness against him. Johnson v. State, 61 Ga. 305, 306.
Separation after March 9, 1866 Does Not Invalidate Mar-
riage. — Two persons after a marriage ceremony while
slaves lived together as husband and wife, and continued
to do so until after Act March 9, 1866 (this section), con-
firming for all civil purposes the marriage of persons of
color. In 1867 they separated and each married another
person. Held, that they were still lawfully married.
Thomas v. East Tennessee, etc., R. Co., 63 Fed. 420.
Negro Living with Two Reputed Wives. — Where a negro
had two reputed wives, espoused during slavery, this sec-
tion contemplates , that he shall not cohabit with both of
them on any condition, that he might continue to cohabit
with one of them by selecting her and making her his law-
ful wife in the mode prescribed which was by having the
usual marriage ceremony performed between her and him-
self. According to the intention as well as the letter of
this act, it required both the selection and the ceremony
to take place at once, but postponing compliance only made
cohabitation penal: it did not disable the parties from
complying or inhibit compliance, at any time however late.
Comer v. Comer, 91 Ga. 314, 18 S. E. 300.
§ 2179. (§ 1822.) Who may perform marriage
ceremony. — It shall be lawful for ordained
colored nuinisters of the gospel to celebrate mar-
riage between persons of African descent only,
under the same terms and regulations as are now
required by the laws of the State for marriage be-
tween white citizens of this State. Acts 1866,
pp. 156, 157.
See § 2936.
As to marriage between whites and persons of African
descent, see § 2941.
Validation Only as to Negroes.— The Act of Dec. 13th,
1866, (this section) declares valid marriages theretofore
celebrated by ordained colored ministers of the gospel be-
tween freedmen and freedwomen, or persons of African de-
scent only. Price v. Brown, 143 Ga. 671, 675, 85 S. E.
870.
§ 2180. (§ 1823.) Child legitimate, when. —
Every colored child born before the 9th day of
March, 1866, is hereby declared to be the legiti-
mate child of his mother; but such child is
the legitimate child of his colored father only when
born within what was regarded as a state of wed-
lock, or when the parents were living together as
husband and wife. Acts 1865-6, pp. 239, 240;
1866, pp. 156, 157.
Cross References. — See § 3012.
As to legitimation of bastards generally, see 2 Enc. Dig.
320. As to who are bastards, see § 3026.
Editor's Note — This section and § 2178 are the same as
the Act of March 9th, 1866, except that the latter provided
that "the child should be the legitimate child of his father
if acknowledged as such." Section 2180 (this section)
omitted this, but provided that the child should be the
legitimate child of his father "only when born within what
was regarded as a state of wedlock, or when the parents
were living together as husband and wife." The Act of
12th Dec, 1866, explanatory of the act March 9th, 1866 de-
clared that the act of March shall be construed to apply
to "only such children born in a state of wedlock or when
parents was living together as husband and wife."
From the foregoing statement it can be seen that as
the law now is, mere acknowledgment by the father is not
sufficient; the child must be born when the parties are
living together as husband and wife or in what is regarded
as a state of wedlock to make the child the legitimate son
of his father.
Meaning of "Wedlock" as Used in This Section. — The
expression in this section "what was regarded as a state
of wedlock," does not mean so regarded merely by the
man and woman. Price v. Brown, 143 Ga. 671, 675, 85 S.
E. 870.
Acknowledgment by Father Legitimated as to Both
Parents. — A colored child, born before emancipation, and
whilst his parents lived in what was regarded as a stati;
of wedlock who has been acknowledged by his father as
his child, is the legitimate child, not only of his mother
but of his father also. Pascal v. Jones, 41 Ga. 220; Mitchell
v. McElvin, 45 Ga. 558. But see Price v. Brown, 143 Ga.
671, 674, 85 S. E. 870.
If the parents separate before that date and the child re-
mained with the mother, she is entitled to the control of
it during minority. But if she voluntarily yield the control
to the father, and he takes the child away she can not
afterwards resume control without assent of father.
Mitchell v. McElvin, 45 Ga. 558.
Child Born between Act March 1866 and Act of Dec. —
Where a colored child was born between the passage of
Act of 9th March 1866, and the Act of Dec. 12, 1866 and
acknowledged by father, he is entitled to inherit as legiti-
mate child of father. White v. Ross, 40 Ga. 339, 340.
Quoted in Day v. Oglesby, 53 Ga. 647; Rhodes v. Wil-
liams, 143 Ga. 342, 344, 85 S. E. 105.
CHAPTER 2.
Of Domicile, and Manner of Changing the
Same.
§ 2181. (§ 1824.) Domicile. — The domicile of
every person of full age, and laboring under no
disability, is the place where the family of such
person shall permanently reside, if in this State.
If he has no family, or they do not reside in this
State, then the place where such person shall
generally lodge shall be considered his domicile.
Acts 1838, Coibb, 530.
Cross References. — For full treatment, see 3 Cum. Dig.
795, 3 Enc. Dig. 240. As to change of domicile, see § 2186.
As to how service of process made, see § 5563.
Legal Residence. — To constitute a legal residence, there
must be the concurrence of an actual residence and an in-
tention to remain permanently. See 3 Enc. Dig. 240. For
a case where the distinction between actual residence and
legal residence was not observed by the court in its charge,
see Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52
S. E. 898.
Residence and Domicile Distinguished. — There must be
a concurrence of actual residence and of intention to re-
main, to acquire a domicile. Residence and domicile are
not synonymous and convertible terms. In order to change
his domicile a person must actually remove to another
place with a present intention of remaining there as his
place of domicile, or, having removed to the new place
avow his intention of remaining there as his place of domi-
cile; but such avowal may be proved by express declara-
tion or acts equivalent thereto. Worsham v. Ligon, 144
Ga. 707, 87 S. E. 1025.
There may be a residence by the family for a long time
at a place not intended as a permanent abode. See Bush
v. State, 10 Ga. App. 544, 73 S. E. 697. Causes of such
temporary residence, are recuperation of health, education
of children, etc. Id.
A man having a permanent residence in one county, does
not under this section, lose such residence by accepting a
contract in another county, and renting a house in the
latter county to which he moved his family, where it is
not his intention to abandon his former domicile in the
county first referred to. Knight v. Bond, 112 Ga. 828, 38
S. E. 206. Under these circumstances the man in question,
did not come within the provisions of § 2182 as "residing
indifferently in two or more places within this state," nor
[509 ]
§ 2182
OF DOMICILE, MANNER OF CHANGING
§ 2184
as a person who habitually resided a portion of the year
in one county and a portion in another, and finally he was
not a transient. See also Smith v. Smith, 136 Ga. 197, 71 b.
E. 158; Kiser v. Oglesby, 11 Ga. App. 190, 192, 74 S. Jv
1036. . „ "' . ■''. :.. (
Meaning of Family as used in Section.-No definition of
the word "family" as used in this section would be satis-
factory that does not convey the idea of unity of the house-
hold in which are gathered the members of the family as
one collective body under the management or control of
the head thereof. Forlaw v. Augusta Naval Stores, 124 Ga.
261, 270, 52 S. E. 898. /.. ...
The meaning of the word "family" in this section is not
necessarily identical with the meaning of the same word as
used in the homestead and exemption laws, and _ there is
a still further variation from the meaning in criminal laws
and police regulations. Forlaw v. Naval Stores, 124 Ua.
261, 269, 52 S. E. 898. '
Section Not Applicable to Minors.— In Darden v. Wyatt,
15 Ga 414, in construing the act of 1838 from which this
=ection is codified, it is said "This act, by its title, pre
amble and body, extends to all persons who are citizens or
inhabitants of this state. It therefore extends to minors.
But this was changed by the code of 1863, which inserted
the words "full age" and as said in Hayslip v. Gillis, 123
Ga 263, 266, the case of Darden v. Wyatt, is no longer
controlling. See also, Jackson v. Southern Flour, etc., Co.,
146 Ga. 453, 91 S. E. 481. And see § 2184.
Applicable to Venue of Suit.— The rules stated in this and
the following section determine where suit should be in-
stituted. Daniel v. Sullivan, 46 Ga. 277; Johnson v. Lowry,
47 Ga. 560, 562.
Boarding.— Where a single person boards and lodges
four nights in the week in a certain district, for the pur-
pose of teaching school, such district will constitute his
residence under this section. Hinton v. Lindsay, 20 Ga.
746. , , ..
Effect of Abandoning Family.— Where a man has a tamuy
but has abandoned them, his residence must be determined
under the latter part of the section, namely, that pertain-
ing to persons with no family. Gilmer v. Gilmer, 32 Ga.
685, 688; Smith v. Smith, 136 Ga. 197, 199, 71 S. E. 158.
Question of Fact for Jury.— Under this section and the
following section, residence is a question of fact to be de-
termined by the jury, so far as it involves ascertainment
of the intention of the party. Forlaw v. Augusta Naval
Stores, 124 Ga. 261, 270, 52 S. E. 898, and in Smith v.
Smith, 136 Ga. 197, 71 S. E. 158, it was held that under
the evidence the question of residence was for the jury.
See also, Mims v. Jones, 135 Ga. 541, 69 S. E. 824; Battle
v. Braswell, 107 Ga. 128, 129, 32 S. E. 838; Jordan v. Car-
ter, 60 Ga. 443.
Whether defendant liable to suit, as a resident of a cer-
tain county under this section, is a question for the jury.
Jordan v. Carter, 60 Ga. 443, 445.
And where the question is for the jury, the cases here
cited, hold that it is not error to charge this and the fol-
lowing section. Ed. Note.
§ 2182. (§ 1825.) Election of one of two. — If a
person shall reside indifferently at two or more
places in this State, such person shall have^ the
privilege of electing which shall be his domicile,
and if such election be made notorious, the place
of his choice shall be his domicile. If no such
election be made, or if made is not generally
known among those with whom he transacts
business in this State, third persons may treat
either one of such places as his domicile, and it
shall be so held; and in all such cases a person
who habitually resides a portion of the year in one
county and another portion in another shall be
deemed a resident of both, so far as to subject
him to suits in either for .contracts made or torts
committed in such county. Transient persons
whose business or pleasure causes a frequent
change of residence, and having no family per-
manently residing at one place in this State, shall
be held and deemed, as to third persons, to be
domiciled at such place as they at the time tem-
porarily occupy.
Cross References — See 3 Cum. Dig. 796. As to venue of
civil cases at law, see § 5526. As to suit against person
[510]
passing through state, see § 5531. As to venue of equita-
ble proceedings, see § 5527.
Editor's Note. — As this section is so frequently construed
with § 2181, it was thought expedient to place decisions
construing both sections under section 2181. The following
note is confined to cases which construe this section solely.
Reference should be made in all instances to § 21-81.
A transient, under this section, has a sufficient residence,
within the meaning of the constitution (Code, § 6540) which
provides that equity cases shall be tried where the de-
fendant resides, to authorize the bringing of an equitable
action in the counties thus declared to be the domicile of
such transient person. Crawford v. Wilson, 142 Ga. 734,
83 S. E. 667.
Railroads. — Under this section railroads may be residents
of several counties. Watson v. Danville R. Co., 91 Ga.
222, 18 S. E. 306.
A juror living in a house which is partly in one county
and partly in another, is competent to serve in the county
in which he claims his residence, votes and pays his taxes.
Chancery v. State, 141 Ga. 54. 80 S. E. 287.
§ 2183. (§ 1826.) Feme covert.— The domicile
of a married woman shall be that of her husband,
except in two cases: 1. Of voluntary separation
and living apart. 2. Of a pending application
for divorce. In which case her domicile shall be
determined as if she were a feme sole.
As to restraints of marriage, see § 2929.
The words "voluntary separation and living apart," as
employed in this section, do not necessarily mean a mu-
tual agreement for a separation; for where the husband has
been guilty of such dereliction of duty in the marital re-
lation as entitles the wife to have it whether partially or
totally dissolved, she may acquire a separate domicile of
her own for the "purpose of conferring jurisdiction on the
proper tribunal in a proceeding for divorce or separation.
Pearlstine v. Pearlstine, 148 Ga. 756, 98 S. E. 264.
Duty of Wife to Follow Husband. — A wife is bound to
go with her husband to reside on a farm despite an an-
tenuptial contract to the contrary. Pace v. Pace, 154 Ga.
712, 115 S. E. 65. See also Perkerson v. Perkerson,. 157
Ga. 589, 122 S. E. 53. For full treatment of this subject.,
see § 2986, and the notes thereto.
§ 2184. (§ 1827.) Of minor.— The domicile of
every minor shall be that of his father, if alive,
unless such father has voluntarily relinquished
his parental authority to some other person. In
such event the domicile of the minor shall be that
of his master, if an apprentice, or his employer;
if neither master nor employer, then the place of
his own choice; if the father be dead, then the
domicile of the minor shall be that of his guard-
ian, if he has one in this State; if no guardian,
then of his mother, if alive; if no mother, then
of his employer; if no employer, then of his own
choice. The domicile of a bastard shall be that
of his mother.
Cross References — See 7 Enc. Dig. 294; 6 Enc. Dig. 820.
As to parent's obligation towards child, see § 3020. As
to appointment or selection of guardian, see § 3035.
Choice by Minor. — Under this section, where a minor has
neither father, mother nor guardian, he may change his
residence at will. Dampier v. McCall, 78 Ga. 609, 3 S. E
563. For general rule, see Harkins v. Arnold, 46 Ga. 657.
When the ward has come to years of discretion, the resi-
dence of the guardian is not the residence of the ward, un-
less the ward choose to make it his residence. Roberts v.
Walker, 18 Ga. 5.
Minor Leaving Home. — A change of domicile does not re-
sult from the minor's leaving home by his father's consent,
to live in another county and conduct a partnership busi-
ness there in his own name for himself and father. Jack-
son v. Southern Flour, etc., Co., 146 Ga. 453, 91 S. E. 481.
Child Taken from Home. — Where one without legal au-
thority took a child from its domicile into another county,
where a third person took it into her family and cared for
it for many years, the ordinary of the latter county, in the
absence of the minor's choice, has no jurisdiction to ap-
point a guardian for it. Hayslip v. Gillis, 123 Ga. 263, 51
S. E. 325.
Same — By Mother. — Where children had been removed
from state by their widow mother, who had married again,
§ 2185
CORPORATIONS
§ 2191
but they frequently avowed an intention of returning to
their former home, on an application for homestead out of
their father's property in the county in which the father
died resident, the question of domicile was for the jury,
and a verdict in favor of the minor's rights will not be
disturbed. Harkins v. Arnold, 46 Ga. 657.
Husband and Wife Separated.— Where husband and wife
are living in a state of separation, the county of the hus-
band's residence is that of the minor children, unless he
has consented otherwise. Hunt v. Hunt, 94 Ga. 257, 21 S.
E. 515.
Cited in Portman v. Mobley, 158 Ga. 271, 123 S. E. 695.
§ 2185. (§ 1828.) Lunatics. — Persons of full age,
who for any cause are placed under the power of
a guardian, have the same domicile with the
guardian.
§ 2186. (§ 1829.) Change of domicile. — The
domicile of a person "sui juris," may be changed
by an actual change of residence with the avowed
intention of remaining. A declaration of an in-
tention to change the domicile is ineffectual for
that purpose until, some act done in execution of
the intention.
See 3 Cum. Dig. 797. See also §§ 2181, 2182, and notes
thereto.
Prerequisites to Change. — In order to change his domi-
cile under this section, a person must actually remove to
another place with a present intention of remaining there
as his place of domicile, or having removed, avow his in-
tention of remaining there as his place of domicile, but
such avowal may be proved by express declaration or acts
equivalent thereto. Worsham v. Eigon, 144 Ga. 707, 87 S.
E. 1025.
Under this section, for a person to change his domicile,
it is essential that he should have a bona fide intent to
make the change. In addition thereto, he must also declare
his intent to change his domicile and do some act in execu-
tion of such intent. Brandt v. Buckley, 147 Ga. 389, 94 S.
E. 233.
Change by Wife. — A wife can not, in the absence of the
husband, and without his consent, change the family resi-
dence so as to change the husband's venue. Sindall v.
Thacker, 56 Ga. 51.
Fleeing from State. — A change of domicile is not effected
by a person fleeing from the state after wounding another,
when his family continues to live in the former state. Bar-
rett v. Black, 25 Ga. 151.
The domicile of a convict sent to a penitentiary in a
county other than that of his domicile, is not changed by
this reason. Barton v. Barton, 74 Ga. 761.
Question for Jury. — The question of the bona fides of an
intent to change a domicile, is one for determination by
the jury. Brandt v. Buckley, 147 Ga. 391, 94 S. E. 233.
§ 2187. (§ 1830.) Of persons net sui juris. — A
person whose domicile for any reason is depend-
ent upon that of another can, by no act of voli-
tion of his, effect a change of his own domicile;
nor can a guardian change the domicile of his
ward by a change of his own or otherwise, so as
to interfere with the rules of inheritance or suc-
cession, or otherwise affect the rights of inherit-
ance of third persons.
See § 3022.
Under this section, a minor has no power to bring about
a change of his domicile. Jackson v. Southern Flour, etc.,
Co., 146 Ga. 453, 455, 91 S. E. 481.
Cited in Harkins v. Arnold, 46 Ga. 657.
SECOND TITLE.
Corporations.
CHAPTER 1.
Corporations, Their Creation, Powers,
and Liabilities.
ARTICLE 1.
How Created.
§ 2188. (§ 1831.) Corporation defined. — A cor-
[5
poration is an artificial person created by law
for specific purposes, the limit of whose exist-
ence, powers, and liabilities, is fixed by the act
of incorporation, usually called its charter.
See § 5.
For a full, comprehensive, and elaborate treatment ot
corporations generally, see 4 Cum. Dig. 143; 3 Enc. Dig.
589.
A corporation is an artifical being, an entity. Simmons v.
Georgia Iron, etc., Co., 117 Ga. 305, 43 S. E. 780; Garmany
v. Eawton, 124 Ga. 876, 53 S. E. 669.
No Existence Before Grant of Charter. — A corporation is
not a person in law until after the grant of its charter.
Venable Bros. v. Southern Granite Co., 135 Ga. 508, 510, 69
S. E. 822, and cases cited.
Effect of Bankruptcy. — The bankruptcy of a corporation
does not put an end to the corporate existence, nor vacate
the office of its directors. The state creating alone can
destroy. Holland v. Heyman & Bro., 60 Ga. 174; National
Surety Co. v. Medlock, 2 Ga. App. 665, 58 S. E. 1131.
Section quoted in Venable Bros. v. Southern Granite Co.,
135 Ga. 508, 510, 69 S. E. 822; First Nat. Bank v. Monroe,
135 Ga. 614, 69 S. E. H23; Eminent Household v. Thornton,
134 Ga. 405, 411, 67 S. E. 849; Central R., etc., Co. v. State,
54 Ga. 401, 407.
§ 2189. (§ 1832.) Public or private. — Corpora-
tions are either public or private.
See generally, 4 Cum. Dig. 149; 3 Enc. Dig. 605.
Corporations have been divided into three classes — cor-
porations de jure, corporations de facto, and corporations
by estoppel. Cason v. State, 16 Ga. App. 820, 828, 86 S. E.
644.
§ 2190. (§ 1833.) Public. — A public corporation
is one having for its object the administration of
a portion of the powers of government, delegated
to it for that purpose — such are municipal cor-
porations.
See § 4798. .
As to counties being a body corporate, see § 383.
When Corporation is Public. — In Cleveland v. Stewart,
3 Ga. 283, it was said that: "A corporation is public when
it has for its object the government of a portion of the
State; and although in such a case it involves private in-
terests, yet as it is endowed with some portion of political
power, the term 'public' has been deemed appropriate.
* * * Incorporation gives to many institutions, as banks,
railroads, colleges, schools, and such like, a certain public
character; the public are interested in them, and they sub-
serve valuable public purposes; but they are not legally
public corporations." Hussars v. Haar, 156 Ga. 21, 24, 118
S. E. 563.
"Another class of Public Corporations are those which
are founded for public, although not political or municipal
purposes, and the whole interest in which belong to the
government." Cleaveland y. Stewart, 3 Ga. 283.
"Municipal corporations are endowed with some portion
of the governmental power, and exercise some of the gov-
ernmental rights of the state, and are strictly public cor-
porations." Medical College v. Rushing, 1 Ga. App. 468,
473, 57 S. E. 1083. For full treatment of municipal cor-
porations, see 8 Cum. Dig. 718, 9 Enc. Dig. 403. See also
§§ 856 et seq. and the notes thereto.
The word "town" is often used as a generic term, em-
bracing cities as well as villages; and when the expression
"incorporated town" is used in an act of the legislature,
it may include "cities," unless the contrary appears from
the whole statute to have been the intent of the legislative
body. Smithville v. Dispensary Comm'rs, 125 Ga. 559, 54
S. E. 539.
Counties. — Except as limited by the Constitution coun-
ties are public corporations which do not stand in the
position of individuals or private corporations. Harmon'!
v. Clark, 136 Ga. 313, 329, 71 S. E. 479. See § 383.
§ 2191. (§ 1834.) Private.— All others are pri-
vate, whether the object of incorporation be for
public convenience or individual profit, and
whether the purpose be, in its nature, civil, reli-
gious, or educational.
Where Partly Supported by State. — Banks founded <m
private capital, hospitals founded on private benefaction,
and colleges founded and endowed by private enterprise
and liberality, although the fund may in part be derived
11]
§ 2192
THEIR CREATION
§ 1294
from the bounty of the government, are private corpora-
tions. Cleaveland v. Stewart, 3 Ga. 283.
An incorporated academy is a private corporation notwith-
standing it may derive its support in part from the state.
Cleaveland v. Stewart, 3 Ga. 283.
The Medical College of Georgia is a private corporation
although it is designated by law as a branch of the Uni-
versity of Georgia. Medical College v. Rushing, 1 Ga.
App. 468, 57 S. E. 1083.
A military corps of cavalry is a private, not a public
corporation, although it subserve public purposes. Hus-
sars v. Haar, 156 Ga. 21, 118 S. E. 563.
ARTICLE 2.
Their Creation.
§ 2192. (§ 1835.) By whom created. — The
power to create corporations in this State vests
in the General Assembly, and the courts, by
whom all charters must be granted. Acts 1853-
4, p. 24; 1855-6, p. 106.
See § 6446.
See 4 Cum. Dig. 157; 3 Enc. Dig. 613.
In England.— See White v. Davis, 134 Ga. 274, 277, 67 S.
E. 716.
In Georgia. — "Under the present law of this state, cor-
porations exercising a public or quasi-public function are
chartered by the secretary of state, except municipal cor-
porations which are chartered directly by the General As-
sembly. All other corporations are chartered by the
superior court." Savannah Ice Co. v. Canal-Louisiana
Bank, etc., Co., 12 Ga. App. 818, 821, 79 S. E. 45.
Necessity for Charter. — Without a charter there is no
corporation; and without organization under the charter,
there can be no corporate act, no corporate property, no
corporate liability. Michael Bros. Co. v. Davidson, 3 Ga.
App. 752, 60 S. E- 362.
Agreements between Individuals. — Corporations can not
be created by a mere agreement between individuals; the
agreement and association must be authorized and sanc-
tioned by law. Meinhard, etc., Co. v. Bedingfield Mer-
cantile Co., 4 Ga. App. 176, 61 S. E. 34.
§ 2992(1). Application for charter, etc.; unlawful
use of name; notice. — Whenever application is
made to the superior courts of this State or to
any of the judges thereof, or to the Secretary of
State, to obtain a charter or the authorization of
articles of incorporation, for any purpose, it shall
be unlawful in such case to use the name of any
person, order, lodge, society or corporation,
either as a corporate name or mentioned in con-
nection with the purpose of such proposed organ-
ization, without the consent of such person,
lodge, order, society or corporation. When ap-
plication is made in such case to obtain a charter
or articles of incorporation it shall be the duty of
the applicant or applicants to notify such person,
order, lodge, society or corporation of such in-
tention to apply for a charter or articles of in-
corporation by registered letter mailed to the per-
son, etc., whose name is to be so used, at his or its
residence or business address, stating the pro-
posed name of the organization, its purposes, etc.,
and the time and place at which such application
will be passed upon by the superior court, or the
judge thereof, or the Secretary of State, as the
case may be, at least fifteen (15) days previous
to the time of passing upon such application for
charter or articles of incorporation. Acts 1923,
p. 82.
§ 2192(2). Objections to grant; time and place
of hearing. — It shall be the right of any person,
order, lodge, society or corporation interested in
the result of such application, and who objects
to the granting of such charter or articles of in-
corporation, to file objections to such grant and
to appear before the superior court or the judge
thereof, or the Secretary of State, as the case
may be, and file written objection thereto and
such court or judge or Secretary of State may,
after hearing the issue formed by the application
and objections filed thereto, and, after hearing
evidence thereon, in its or his discretion grant or
refuse such charter or articles of incorporation.
The hearing on such application and objections
filed thereto may be heard at such time and place
within the county where the application is made
under appropriate order of the superior court or
the judge thereof, or the Secretary of State, as
may be fair and just to all parties concerned.
Acts 1923, p. 82.
§ 2192(3). Exceptions by either party; writs of
error, etc. — Either party to the cause who is dis-
satisfied with the judgment of the superior court
or the judge thereof, or the action of the Secre-
tary of State, may except to such judgment or
action and take the case to the Court of Appeals
or the Supreme Court, by writ of error or mo-
tion for a new trial, as now provided by law for
taking cases to those courts. Acts 1923, p. 82.
§ 2193. (§ 1836.) Charters, how renewed. — Any
banking, insurance, railroad, canal, navigation,
express, and telegraph company, heretofore in-
corporated 'by the General Assembly by special
act, may from time to time renew its charter by
filing with the secretary of State a petition signed
with the corporate name, stating the name and
charter of the corporation, when incorporated,
giving the date of the original act of incorpora-
tion and all amendments thereto, that it desires
a renewal of its charter as set out in the original
act of incorporation and the acts amendatory
thereof; and paying to the secretary of State a
fee of one hundred dollars, to be covered by him
into the treasury of the State; and filing along
with said petition a certified abstract from the
minutes of the corporation, showing that the ap-
plication for renewal has been authorized by proper
corporate action. Acts 1893, p. 88.
See §§ 6446, 2197.
When Applicable. — This section has no application save
to corporations whose charters have expired, or were pres-
ently about to expire. Augusta, etc., R. Co. v. Augusta,
100 Ga. 701, 28 S. E. 126.
§ 2194. (§ 1837.) Form of certificate to be is-
sued.— Thereupon the secretary of State shall is-
sue to the petitioning corporation the following
certificate, to wit:
Georgia. To whom it may concern — Greeting:
(Insert name of petitioning corporation), a
corporation created by an Act of the General As-
sembly of the State of Georgia, by an Act ap-
proved (insert date of approval of act of incor-
poration) and Acts amendatory thereof, ap-
proved (insert date of approval of amending
acts), having petitioned for a renewal of the char-
ter of said corporation in terms of the statute in
such case made and provided, the grant of cor-
porate powers and privileges set out in the
above-recited acts is hereby renewed for the
space of thirty years, as to all parts thereof not
in conflict with the Constitution and laws now or
hereafter of force in this State.
Witness my official hand and the seal of State,
this — day of — , 18 — . Acts 1893, p. 88.
[512]
§ 2195
THEIR CREATION
§ 2199
§ 2195. (§ 1838.) Acceptance of. renewal. — Upon
filing the petition and abstract, and the issu-
ance of the certificate prescribed, the corporation
shall be conclusively presumed to have accepted
the renewal of its 'charter, and said corporation
shall be, and continue for the space of thirty
years, a body corporate, with all the powers,
privileges, and liabilities granted in the original
act of incorporation and the amendments thereto,
so far as the same are not in conflict with the Con-
stitution and laws of the State, now or hereafter
of force. Acts 1893, p. 88.
Method of Acceptance. — Acceptance could be, and in the
present case was, accomplished by the corporation applying
to and obtaining from the city council, under and by vir-
tue of the act of extension, valuable privileges and fran-
chises which it actually used and enjoyed and subsequently
sold to another corporation. And this is true though the
act of extension prescribed the method of acceptance.
Augusta, etc., R. Co. v. Augusta, 100 Ga. 701, 28 S. E. 126.
As to acceptance of charter amendment by user, see § 2199
and note thereto.
Acceptance of Conditions and Restrictions. — The accept-
ance by the company of an act, extending the charter on
certain conditions, made the same the company's charter,
and thereafter its corporate powers, rights and privileges
were to be measured and limited by the provisions of the
act of extension. Augusta, etc., R. Co. v. Augusta, 100
Ga. 701, 28 S. E- 126.
§ 2196, (§ 1839.) To file petition, etc.— The sec-
retary of State shall keep of file the petitions and
abstracts specified, and a book in which he shall
enter the names of all corporations obtaining re-
newals of charters, and the date of the renewal.
Acts 1893, p. 89.
§ 2197. (§ 1840.) Charters, how amended. —
Any banking, insurance, railroad, canal, naviga-
tion, express, or telegraph company, heretofore
incorporated by the General Assembly by special
act, may amend its charter so as to acquire any
or all of the corporate powers and privileges
granted to a like corporation under the acts al-
ready, or to be hereafter passed, providing for
the grant of corporate powers and privileges to
such companies by the secretary of State, by fil-
ing with the secretary of State a petition signed
with the corporate name, stating the name and
character of the corporation, and date of the orig-
inal act of incorporation and all amendments
thereto, that it desires an amendment to its
charter by having granted to it the corporate
powers and privileges granted to similar corpo-
rations by the act, or certain specified sections of
the act, providing for the grant of corporate pow-
ers and privileges to (insert kind of company)
.by the secretary of State, and paying to the sec-
retary of State a fee of twenty-five dollars, to be
covered by him into the treasury of the State, and
also filing along with said petition a certified
abstract from the minutes of the corporation,
showing that the application for amendment has
been authorized by proper corporate action.
Whenever any insurance company which, by its
charter, is permitted to do other than a fire-in-
surance business, desires to abandon the same,
or any part thereof, it may, upon application to
the secretary of State, relinquish and surrender
any or all the powers and privileges granted to
it for the conduct of such other business, pro-
vided no rights of contract be thereby violated.
Acts 1893, p. 89; 1902, p. 49.
Cross References.— For a full and comprehensive treat-
ment of amendment, repeal and extension of corporation
charters, see 4 Cum. Dig. 168, 3 Enc. Dig. 629.
As to renewal of charters, see § 2193. As to amendment
of charters of navigation companies, see § 2576. As to
railroad corporations, see § 2577 et seq.
When Unanimous Consent Necessary. — When a proposed
amendment to a charter of a corporation is fundamental,
radical, or vital, the unanimous consent of the stockholders
to its acceptance is essential. Atlanta Steel Co. v. Myna-
han, 138 Ga. 668, 75 S. E. 980, and cases cited. See § 2201.
Increasing the capital stock constitutes a fundamental
amendment. Id. Also, a proposed addition to the charter
of a railroad of the rights and privileges of the general
railroad law of the state and would require unanimous con-
sent. Alexander v. Atlanta, etc., R. Co., 108 Ga. 151, 33
S. E- 866. See also, Georgia R., etc., Co. v. Maddox, 116 Ga.
64, 42 S. E. 315.
But these illustrations of vital amendments must be
compared with § 2201, as amended in 1913. See the Editor's
Note to § 2201.
Amendment of Banking Company Charters. — See § 2366
(90), and note.
§ 2198. (§ 1841.) Certificate of amendment. —
If the application shall be to amend the charter,
so as to acquire any or all of the corporate pow-
ers and like privileges granted to a like corpora-
tion under the acts already, or to be hereafter
passed, providing for the grant of corporate pow-
ers and privileges to such companies, thereupon
the secretary of State shall issue to the corpora-
tion the following certificate: Georgia. To whom
it may concern — greeting: (insert here name of
petitioning corporation), a corporation created
by an Act of the General Assembly of this State
by an Act approved (insert here date of approval
of act), and Acts amendatory thereof, approved
(insert here date of approval of amendatory
acts), having petitioned for an amendment of the
charter of said corporation, in terms of the law in
such case made and provided, the corporate pow-
ers and privileges set out in the Act (or certain
specified sections of the act), providing for the
grant of corporate powers and privileges by the
secretary to (insert charter of company), are
hereby conferred upon (insert name of company
desiring amendment). Witness my hand and
seal of this State, this day of , 19 — .
If the application shall be to amend the charter
by relinquishing and surrendering any of the
powers or privileges granted to insurance com-
panies as provided in the preceding section, then
the secretary of State shall issue to said insur-
ance company the following certificate: To whom
it may concern — greeting: (insert here name of
petitioning insurance company), a corporation
created by an Act of the General Assembly of
this State by an Act approved (insert here date
of approval of act), and Acts amendatory there-
of, approved (insert here date of approval of
amendatory acts), having petitioned for an
amendment of the charter of said corporation in
terms of the law in such case made and provided,
by (insert here the particular powers or privi-
leges which said insurance company desires to
relinquish or surrender), said amendment is here-
by granted and allowed, and made a part of the
charter of the said (insert name of insurance
company desiring amendment). Witness my
hand and seal of this State, this day of ,
19—.
§ 2199. (§ 1842.) Acceptance of amendment
conclusively presumed. — After the filing of said
petition, and the issuance of the certificate pre-
scribed in the foregoing section, the corporation
Ga. Code— 17
[513]
§ 2200
NON-PAR STOCK
§ 2202(1)
shall be conclusively presumed to have accepted
the amendment specified, and shall have, enjoy,
and exercise all the corporate powers and privi-
leges set out in the act, or the particular section
of the act, specified in the petition and certificate
prescribed in this Code. Acts 1893, p. 89.
Acceptance by User. — "The general rule as to the ac-
ceptance of amendments to charters is, that acts of user
under an amendment to a corporate charter for which no
authority can be found except in such amendment, and
which amendment is supposed in good faith to be beneficial
to the corporation, are evidence of an acceptance of such
amendment by the corporation, and make it the law of the
corporation and binding upon all its members." Georgia
R., etc., Co. v. Maddox, 116 Ga. 64, 75, 42 S. E. 315. As
to acceptance of renewal by user, see note to § 2195.
§ 2200. (§ 1843.) Petition and transcripts to be
kept of file. — The secretary shall keep of file all
petitions and transcripts filed with him, and a
book in which he shall enter the names of all the
companies obtaining amendments to charters, the
date of the amendment, and the act, or portions
of the act, adopted as an amendment. Acts 1893,
p. 90.
§ 2201. (§ 1844.) Change of name or capital
stock, or place of business. — Any banking, rail-
road, insurance, express, telegraph, canal or navi-
gation company in this State, whether incorpo-
rated by special act of the General Assembly or
by the Secretary of State under the general law,
may have its corporate name or its principal of-
fice, or the face value of each share of its capital
stock, or the number of its iboard of directors, or
the amount of its capital stock changed in the
following manner, to-wit: The company desir-
ing to have its name, or its principal office, or the
face value of each share of its capital stock,
or the number of its board of directors, or the
amount of its capital stock changed, shall file in
the office of the Secretary of State, a petition
signed with the corporate name, stating the name
and character of the corporation, the State
[date] of its original charter and all amendments
thereto, that it desires an amendment to its char-
ter changing its corporate name, or its principal
office, or the face value of each share of its capi-
tal stock, or the number of its board of directors,
or the amount of its capital stock, any or all, as
the case may be, and paying to the Secretary
of State a fee of $25.00 to be covered by him into
the treasury of the State; and also file with such
petition a certified abstract from the minutes of
the board of directors, showing that the applica-
tion for the proposed amendment has been au-
thorized by the vote of a majority in amount of
the entire capital stock entitled, (by the terms of
its charter to vote at a meeting of the stock-
holders called for the purpose, b}r resolution of
the board of directors, notice of which meeting
shall be mailed to each stockholder, or, in case of
death, to his legal representatives or heirs at law,
addressed to his last known residence, at least ten
days previously to the day of said meeting; pro-
vided, however, if the petition is to change the
principal office of any of such companies, then
the certified abstract from the minutes shall show
that the amendment was authorized by a two-
thirds vote of the entire capital stock of said
company. Affidavit made and signed, in due form
at [of] law by the president or secretary shall be
attached to said petition, showing that it has been
published once a week for four weeks in that
newspaper in which is published the sheriff's
sales of the county in which the principal office
of said corporation is located. Acts 1895, p. 52-,
1897, p. 26; 1907, p. 55; 1913, p. 49; 1925, p. 91.
Cross References. — See § 6446.
As to increase, issue and diminution of capital stock of
banking corporation, see § 2268. As to canal companies, see
§ 2377. As to navigation companies, see § 2574. As to
insurance companies, see § 2397. As to street railway com-
panies, see § 2601. As to banks, § 2366 (90).
Editor's Note. — This section was amended by the acts of
1913 (Acts 1913, p. 49) by striking therefrom the words "the
unanimous vote of the stockholders present at the meet-
ing held for such purpose" as they appeared after the
words "authorized by" in the latter part of the first sen-
tence, and inserting in lieu thereof the words "two-thirds
vote of the entire capital stock of said company," to read
as the section now appears.
In the public acts of 1913 the word "state" appears be-
tween the word "the" and the words "of its original," in
stead of the word "date" as the section originally read.
This is palpably a typographical error. And again in the
second sentence of the published act we find between the
word "form" and the word "law" the word "at" instead
of the word "of." This also is clearly a typographical error.
The acts of 1925, p. 91 added the words "entitled by the
terms of its charter to vote" beginning in the thirty-first
line of this section.
As to the applicability of this section to banking com-
panies, see § 2366 (90) and note.
Location of Office. — While the location of the principal
office of a railroad corporation, when once established, is
beyond the mere discretionary control, the administrative
offices of such corporation may be changed as often as
necessary. Jossey v. Georgia, etc., R. Co., 102 Ga. 706, 2S
S. E. 273.
Vote of Unpaid Stock. — The purchasers of stock which
has not been fully paid for have a right to vote such stock
at a stockholders meeting, on the question of amending the
charter of the corporation under this section. Georgia Life
Ins. Co. v. Bell, 141 Ga. 502, 80 S. E. 765.
§ 2202. (§ 1845.) Certificate of change.— When
said petition and affidavit have been filed in the
office of the secretary of State, that officer shall
issue to said company, under the great seal of the
State, a certificate in the following form:
To all to whom these presents may come — Greet-
ing:
Whereas, the (here insert name of petitioning
corporation), a corporation created and existing
under the laws of this State, has filed in this of-
fice, in terms of the law, a petition asking that
its charter be amended by changing (its corpor-
ate name or its principal office, or both, as the
case may be) from to , and has complied
with all the requirements of the law in such cases
made and provided; therefore, the State of Geor-
gia hereby amends the charter of the said (insert
name of company) by changing (its corporate
name or principal office, or both, as the case may
be) from (insert old name or old principal office,
or both) to (insert new name or new principal of-
fice, or both).
In witness whereof, these presents have been
signed by the secretary of State, and, the great
seal has been attached hereto, at the capitol in
Atlanta, on this day of — , 18 — . Acts
1895, p. 52.
ARTICLE 2A. '
Non-par Stock.
§ 2202(1). Stock of certain corporations; pre-
ferred and common stock; assets for non-par
stock. — Every corporation having capital stock
heretofore or hereafter incorporated under the
[514]
§ 2202(2)
FOREIGN CORPORATIONS
§ 2203
laws of this State, whether by the secretary of
state, by act of the General Assembly or by the
Superior Court (including corporations with pow-
ers derived from two or more of such sources),
except an insurance, banking or trust company,
may, upon its organization or thereafter in the
manner hereinafter provided, create shares of
stock with or without par value and may create
two or more classes of stock with such prefer-
ences, voting powers, restrictions and qualifica-
tions thereof as shall be designated in its petition,
declaration or other application for incorporation,
or be subsequently determined upon in the man-
ner hereinafter provided; Provided that before
any corporation shall avail itself of the provisions
of this Act it shall procure appropriate corporate
authority therefor, in the manner provided by
law, and the Secretary of State and the Superior
Courts are hereby authorized to grant such pow-
ers to the several classes of corporations of which
they now have jurisdiction to grant or amend
charters; Provided further that no preferred
stock may be issued or offered for sale by any
corporation availing itself of the provisions of
this Act; Provided further that there shall be
but one class of common stock, each share of
which shall stand upon an equality with every
other share; Provided further that before any
such corporation can begin business as a corpora-
tion there must be at least $1,000.00 paid in for
such non-par value common stock either in cash
or in tangible assets at their fairly appraised
valuation. Acts 1925, pp. 224, 225.
§ 2202(2). Par stock laws applicable to non-
par stock; issue and sale; non-assessable. — The
provisions of law relating to the issue of shares
of capital stock with par value, including in the
case of a corporation under the jurisdiction of
the Georgia Public Service Commission the laws
creating and defining the duties and powers of
said Commission, shall, save as herein otherwise
provided, apply also to the issue of shares with-
out par value. A corporation may issue and dis-
pose of its authorized shares without par value
for such consideration as may be authorized or
prescribed in its charter or certificate of incor-
poration or amendments thereof; or, if there be
no provision therein with respect thereto, then
for such consideration as may be fixed by the
stockholders at a meeting duly called for that
purpose, or by the board of directors when act-
ing under general or special authority granted by
the stockholders, or under general authority con-
ferred by the charter or certificate of incorpora-
tion or amendments thereof. Any and all shares
without nominal or par value issued for the con-
sideration prescribed or fixed in accordance with
the provisions of this section shall be fully paid
and not liable to any further call or assessment
thereon, nor shall the subscriber or holder be
liable for any further payment. Acts 1925, pp.
224, 225.
§ 2202(3). Change of par stock into non-par
stock. — Every corporation of the character in-
cluded in § 2202(1) hereof having shares with par
value, whether issued and outstanding or only
authorized, may at a meeting duly called, for the
purpose, by the vote of a majority of all its stock
entitled to vote, or, if two or more classes of
[5
stock have been issued., of a majority of each
class outstanding and entitled to vote, including
in any event a majority of the outstanding stock
of each class affected, change such shares of any
class thereof into an equal or greater number of
shares of the same class without par value, or
provide for the exchange thereof pro rata for an
equal or greater number of shares without par
value; provided that all shares in any one class
shall be changed or exchanged on the same basis
and provided further that the preferences, restric-
tions and qualities of the outstanding shares so
changed or exchanged shall not be otherwise af-
fected., nor the relative voting powers of the dif-
ferent classes of shares be altered. Acts 1925,
pp. 224, 226.
§ 2202(4). Application for incorporation. —
Upon the organization of any corporation having
shares of stock without par value, the petition,
declaration or other application for incorporation
required by law shall state, in addition to other
matters required to be stated, (a) the number of
shares with par value and the number of shares
without par value that may be issued and
the designation of the classes, if any, into which
such shares are divided; (b) the par value of the
shares, if any, other than the shares to be with-
out par value; and (c) if there are to be two or
more classes of stock, a description of the dif-
ferent classes including a statement of the respec-
tive preferences, restrictions and qualities there-
of. Acts 1925, pp. 224, 227.
§ 2202(5). Statements as to non-par stock. —
Any law requiring that the amount or par value
of the capital stock of a corporation be stated in
any certificate, report or other instrument shall be
deemed to be complied with so far as shares
without par value are concerned by stating with
respect to such shares the number authorized,
issued or to be issued as the case may be and that
they are without par value. Acts 1925, pp. 224,
227.
§ 2202(6). Meeting "duly called for the pur-
pose."— A meeting "duly called for the purpose"
as that phrase is herein used shall mean a meet-
ing of the stockholders called and notified for the
purpose in the manner prescribed by the by-laws
of the corporation concerned; and unless required
by the by-law, no publication of the call or no-
tice in an}- newspaper shall be necessary. Acts
1925, pp. 224, 227.
ARTICLE 3.
Foreign Corporations.
§ 2203. (§ 1846.) Foreign corporations. — Cor-
porations created by other States or foreign gov-
ernments are recognized in our courts only by
comity, and so long as the same comity is ex-
tended in their courts to corporations created by
this State.
Cross References.— See §§ 5734, 2227. *
For full treatment of foreign corporations, see 6 Cum.
Dig. 305, 6 Enc. Dig. 268.
As to comity of states, see § 9. As to attachment against
foreign corporations, see § 5072. As to returns of foreign
corporations, see § 2209. As to comity to foreign insurance
companies, see § 2449.
Power to Contract. — A corporation can have no legal ex-
istence out of the sovereignty by which it is created; but
15]
2204
FOREIGN CORPORATIONS
§ 2207(2)
its existence, as a person capable of contracting may be
recognized in another State, and as such, it may there be
contracted with. Union Branch R. Co. v. Tennessee, etc.,
R. Co., 14 Ga. 327. See also Port Royal R. Co. v. Ham-
mond, 58 Ga. 523, 526.
Suits in this State. — The right of the corporations of
one state to sue in another depends upon the comity of
states or nations. American Colonization Society v. Gart-
rell, 23 Ga. 448, 458. For full treatment of comity, see § 9,
and note thereto.
Where this right exists and a foreign corporation is
suing in this state, it is not necessary that it set out in
its petition the terms of its charter showing capacity to
maintain the action. Bass v. African M. B. Church, 150
Ga. 452, 104 S. E. 437.
Recovery of Land. — A foreign corporation can not re-
cover land in Georgia where it does not appear that such
foreign corporation had a right by its charter to hold land.
Carver Cotton Gin Co. v. Barrett & Co., 66 Ga. 526, 529.
See § 2206, and note thereto.
§ 2204. (§ 1847.) What powers they may not
exercise.— No foreign corporation shall exercise
within this State any corporate powers or privi-
leges which by the Constitution or laws of Geor-
gia are denied or prohibited to corporations
created by this State, or the exercise of which is
contrary to the public policy of this State, any-
thing in the charter or corporate powers of the
foreign corporation to the contrary notwithstand-
ing. Acts 1893, p. 32.
§ 2205. (§ 1848.) Penalty.— Whenever any for-
eign corporation shall exercise or attempt to ex-
ercise within this State any corporate power or
privilege denied or prohibited to corporations
created by this State by the Constitution or laws
of this State, or contrary to the public policy of
this State, it shall be the duty of the courts to
declare said corporate powers or privileges in-
valid and of no force or effect within this State,
and to restrain or prohibit, by appropriate pro-
cess, order, or judgment, the exercise of said cor-
porate powers or privileges by said foreign cor-
poration, at the instance of any party at interest,
or at the instance of the attorney-general, when the
latter shall be directed by the Governor to pro-
ceed to that end in the name of the State.
§ 2206. (§ 1849.) Ownership of land by foreign
corporation. — Any foreign corporation or corpo-
rations incorporated by the laws of any other
State, and claiming to own lands in Georgia in
quantity amounting to as much as five thousand
acres, shall be incorporated by the laws of Geor-
gia within twelve months after February 28th,
1877; and on their failing to do so, the State of
Georgia will not consent to the said corporation
owning the said lands so located in her territory.
And any foreign corporation incorporated by the
laws of other States, who shall thereafter claim
to own land in the State of Georgia in quantity
amounting to five thousand acres or upwards,
shall become incorporated by the laws of the
State of Georgia, and in default thereof Georgia
will not consent that said foreign corporation
shall own said lands in her territory; and no foreign
corporation incorporated by the laws of another
State shall own more than five thousand acres of
land except upon the condition of becoming a cor-
poration under the laws of Georgia: Provided,
that this section shall not apply to any foreign cor-
porations, or any corporation incorporated by the
laws of any other State, engaged in the business
of lending money on real estate security, nor to
any such corporation holding a lien upon real es-
tate to secure the payment of any debt, when said
corporation, in order to prevent loss, is compelled
to become the purchaser of lands covered by deed
or mortgage to secure a loan: And provided, how-
ever, that the benefits and privileges of the fore-
going proviso shall not apply to any foreign cor-
poration which does or may lend money in this
State at a greater rate of interest than eight per
cent, per annum. In estimating the amount of in-
terest charged, there shall be included any and all
commissions or fees which may be paid to said
company or its duly authorized agents. Acts 1893,
p. 33; 1895, p. 24.
See § 2203, and note thereto.
As to the right of foreign corporations to exercise the
power of eminent domain, see 5 Cum. Dig. 376.
Who May Raise Question. — The state alone can make
the question as to the right of corporations to hold land
in Georgia. American Mortgage Co. v. Tennille, 87 Ga.
28, 13 S. E. 158.
§ 2207. (§ 1850.) Charter of foreign corporation,
how faf binding here. Where a foreign corpora-
tion does business in this State and relies upon
provisions in its charter different from those im-
posed by the law of this State under similar cir-
cumstances, it must show that the opposite party
had notice of such provisions at the time the con-
tract was made.
§ 2207(1). Power to become domesticated; pow-
ers, etc., after domestication. — All foreign corpora-
tions now doing business in the State of Geor-
gia, or which may hereafter do business in the
State of Georgia, and whose business is not against
the public policy of this State, shall have the
power to become domesticated in the manner
hereinbefore pointed out; and upon becoming do-
mesticated such corporations shall have the same
powers as similar corporations created under the
laws of the State of Georgia have, subject to same
obligations, duties, liabilities and disabilities, as if
originally created under the laws of Georgia; and
shall no longer have that power of removing
causes to the United States Courts which inheres
in foreign corporations. Acts 1920, p. 151.
§ 2207(2). Petition; publication; examination; or-
der1 of domestication; period and renewal. — The
foreign corporations referred to in the foregoing
section, which desires to become domesticated shall
file a petition to that effect in the office of the
Clerk of the Superior Court of the county in which
it desires to have its principal place of business in
the State of Georgia, if the said corporation is
of that kind which, if originally incorporated, under
the laws of Georgia, would have been incorpo-
rated by the Superior Court, and shall set out a
certified copy of the charter granted by its home
State and a certified copy of the resolution adopted
by a majority of its stockholders, in meeting as-
sembled, authorizing the filing of said petition;
and if said corporation is of the kind which would
have been originally incorporated under the laws
of this State by the Secretary of State, the afore-
mentioned petition, certified copy of charter and
certified copy of the resolution of the stockhold-
ers shall be filed with the Secretary of State.
Said petition shall be published in the manner re-
quired by the laws of this State, applicable to the
original incorporation of similar corporations un-
der the laws of this State, and after said publi-
cation the said petition shall be examined by the
Judge of the Superior Court of the county in
[516]
§ 2207(3)
CORPORATION COMMISSIONER
§ 2214
which the application is filed if the same is filed
in the Superior Court, or by the Secretary of
State if the same is filed with the Secretary of
State.
And in the event it is found that the purpose of
said corporation is not against the public policy of
the State, an order shall be entered domesticating
the said company. Provided, however, that if any
provisions of the charter of said corporation be
such as would not have been originally granted if
the charter had been applied for under laws of this
State, such powers shall not be exercised within
this State. Provided further, that this domestica-
tion shall extend for a period of twenty (20) years
with the privilege of renewal as is provided for
similar corporations incorporated under the laws
of this State, unless the charter of said foreign
corporation would earlier expire; in which event
domestication shall extend only to the duration of
the original charter of said foreign corporation,
unless the said charter be renewed by its home
State, and certified copies of the renewals and
amendments to said charter shall be filed in the
office of the Secretary of this State. Acts 1920,
pp. 151, 152.
§ 2207(3). Certified copy of proceedings to be
filed. — Upon the granting of the petition for do-
mestication by the Judge of any Superior Court,
a certified copy of the proceedings granting said
petition shall be filed with the Secretary of this
State. The Judge of the Superior Court is au-
thorized to act on said petitions in term or in va-
cation. The petitioner shall pay the costs pre-
scribed by the laws of this State as though the
said corporation had been originally incorporated
under the laws of this State, and the Secretary of
State shall be entitled, for the filing of certified
copies of the proceedings in the Superior Court
hereinbefore mentioned, to a fee equal to fifteen
(15) cents per hundred words contained in said
proceedings. Acts 1920, pp. 151, 152.
Effect of Failure to File. — Where a foreign corporation
takes all steps to become domesticated under this act in-
cluding order of domestication, except filing certified copy
of proceeding with secretary of state, and exercises the
right of eminent domain, it is held to have accepted order
of domestication, though there was no formal acceptance
thereof. Foy v. Ga.-Ala., etc., Co., 298 Fed. 643; 159 Ga.
414, 124 S. F. 513.
§ 2207(4). Principal office, capital stock, etc. —
In such instance the petition shall state the prin-
cipal office of said company in Georgia, the amount
of capital stock authorized, the amount of capital
stock subscribed for, whether preferred or com-
mon, and the amount actually paid. The said
corporation shall have no power which it could
not have acquired if it had been incorporated un-
der the laws of Georgia. The State of Georgia
shall have the same visitorial power over such do-
mesticated corporations as it has over corporations
created under the laws of this State. Acts 1920,
pp. 151, 153.
ARTICLE 4.
Corporation Commissioner.
§ 2208. Corporation commissioner. — The secre-
tary of State shall be ex-officio corporation com-
missioner of this State, and shall be charged with
the execution of the duties hereinafter enumerated.
Acts 1906, p. 105.
See § 210.
§ 2209. Returns of corporations. — It is the duty
of all corporations, except banks doing business in
this State, whether incorporated by the legislature
of this State, by the secretary of State, or by the
judgment of the superior court, or of any foreign
corporation doing business in this State, to make
a return, annually, through the president or gen-
eral manager on or by the first day of Novem-
ber, embracing the following information:
1. The name of the company.
2. When incorporated.
3. By what authority incorporated.
4. Where incorporated.
5. The amount of capital stock of said corpora-
tion.
6. The business of the corporation.
7. Its principal office.
See §§ 2379, 2823.
As to reports of banks, see § 2288.
§ 2210. Fees. — At the time of making said re-
turn the officer making the same shall remit a fee
of one dollar for the first year, and annually
thereafter fifty cents to cover the cost of record-
ing the return.
§ 2211. Penalty for non-compliance. — Upon
failure and refusal of any corporation to make
said return, the company shall be liable to a pen-
alty of fifty dollars, and the commissioner of cor-
porations is authorized to issue his execution
therefor, including all costs incurred: Provided,
the secretary of State shall have in his discretion
authority to suspend the penalty or issuance of fi.
fas. when he shall be convinced that there has
been no bad faith in failure to comply with the
requirements of this Article.
§ 2212. Returns to be recorded, book as evi-
dence.—The commissioner of corporations shall
procure a book wherein he shall enter said re-
turns, which book shall be kept readily accessible
for public inspection in the office of the secre-
tary of State, and a certified copy thereof, und.er
the seal of his office, shall be sufficient to author-
ize it to be admitted as evidence in any court in
this State.
§ 2213. Salaries of commissioner and clerk. —
The commissioner of corporations shall receive
the sum of twelve hundred dollars per annum for
his services, and one thousand dollars per annum
for clerical expenses in executing the provisions
of this Article, to be paid quarterly out of fees de-
rived from the office. Any surplus over and
above the salaries and expenses herein provided
shall be paid into the treasury for the use of the
State, and the secretary of State shall include in
his annual reports a full statement of all fees col-
lected or received under this Article, and how dis-
posed of.
§ 2214. Certified list for comptroller-general. —
It shall be the duty of the secretary of State to
furnish to the comptroller-general, on or before
January first of each year, a certified list of all
corporations thus registering, showing in detail
the information required to be filed by each of
said corporations.
[517]
§ 2215
POWERS AND LIABILITIES OF CORPORATIONS
§ 2216
ARTICLE 5.
Powers and Liabilities of Corporations.
§ 2215. (§ 1851.) Continuance. — Corporations
have continuous succession during the time
limited by their charter, notwithstanding the
death of their memlbers. Should any charter
granted in future by the General Assembly to a
private corporation be silent as to its continu-
ance, such charter shall expire at the end of thirty
years from the date of its grant.
See § 2823.
Changing Stockholders.— The object of incorporation is to
create an artificial being with perpetual life, or life for a
term of years, and it does not cease to be such, although
all of the natural persons who were first members of the
organization die, sell their interest, or otherwise cease to
be stockholders. Mathis v. Morgan, 72 Ga. 517. See Wilk-
ins v. Warden, etc., of St. Marks Church, 52 Ga. 352.
Bankruptcy. — The bankruptcy of a corporation does not
put an end to the corporate existence, nor vacate the office
of its directors. National Surety Co. v. Medlock, 2 Ga.
App. 665, 58 S. E. 1131; Holland v. Heyman & Bro., 60
Ga. 174.
Unincorporated Academy. — But the trustees of an unin-
corporated academy in the absence of power conferred by
grant, have no authority to perpetuate their succession
by filling vacancies in the board. Thompson v. Hale, 123
Ga. 305, 51 S. E. 383.
§ 2216. ('§ 1852.) Common powers. — All cor-
porations have the right to sue and be sued, to
have and use a common seal, to make by-laws,
binding on their own members, not inconsistent
with the laws of this State and of the United
States, to receive donations by gift or will, to
purchase and hold such property, real or per-
sonal, as is necessary to the purpose of their or-
ganization, and to do all such acts as are neces-
sary for the legitimate execution of this purpose.
See § 2823, par. 5.
For full and comprehensive treatment of powers of a
corporation, see 4 Cum. Dig. 173; 3 Enc. Dig. 641.
As to power to appoint agent, see § 3574.
In General. — The powers of a corporation are limited and
fixed by the act of incorporation, and besides the powers
thus specially granted, it has those which are common to
all corporations. Gunn v. Central Railroad, 74 Ga. 509.
The powers of a corporation organized under the general
railroad law are such only as the statute confers. Under
this section a corporation may do all things necessary for
the legitimate execution of the purposes for which it was
chartered. Brinson Ry. Co. v. Exchange Bank, 16 Ga.
App. 425, 85 S. E. 634.
"Although corporations have only such powers as are
granted in the charter, yet where an express power is
granted, this carries with it the right to do any act which
may be found reasonably necessary to effectuate the power
expressly granted. What is and what is not too remote
from the main purpose must be determined by the particu-
lar facts of each case. Snook v. Georgia Improv. Co., 83
Ga. 61, 9 S. E. 1104." National Bank v. Amoss, 144 Ga.
425, 430, 87 S. E. 406. See also, Savannah Ice Co. v. Canal-
Louisiana Bank, etc., Co., 12 Ga. App. 818, 821, 79 S. E- 45;
Shiflett v. Kelly & Co., 16 Ga. App. 91, 84 S. E. 606.
Every person is presumed to know the law, and is
charged with notice of the limitations on the powers of a
corporation fixed thereby. First Nat. Bank v. Monroe, 135
Ga. 614, 616, 69 S. E. 1123.
Power to Sue and Be Sued — Bill in Equity.— A corpora-
tion aggregate may file an answer to a bill in equity un-
der its corporate seal; but an injunction against a corpora-
tion will not be dissolved on the filing of such an answer,
unless the answer is duly certified by the oath of some of
the corporators, or agents, who are acquainted with the
facts stated therein. Hemphill v. Ruchersville Bank, 3 Ga.
435. For full treatment of actions by and against corpora-
tions generally, see 4 Cum. Dig. 192; 3 Enc. Dig. 672.
Same — To Marshal Assets. — A corporation can not, as a
plaintiff, maintain an equitable suit to marshal its own
assets; and the appointment of a receiver under such a
proceeding, over the objection of creditors, duly made, is
error. Bank v. Empire Realty Co., 142 Ga. 34, 82 S. E. 464;
Martin v. Brown, 129 Ga. 562, 569, 59 S. E. 302.
Same — In Whose Name Action Brought. — A corporation
is empowered to sue in its corporate name, and by that
name it is liable to be sued; it can only be known in legal
proceedings by that name, and if sued by a different name
the suit would be dismissed. Bradford v. Water Lot Co.,
58 Ga. 280; Jones v. Watson, 63 Ga. 679.
Same — Same — Amendment as to Name. — A corporation
may bring suit in its own name and if it fails fully to
describe its legal entity, may amend by alleging that it is
a corporation. Western, etc., R. Co. v. Daltofl Marble
Works, 122 Ga. 774, 50 S. E. 978. For other cases, see 4
Cum. Dig. 193.
Power to Pass By-Laws. — It is within the power of a
corporation to pass such by-laws as are not inconsistent
with its charter and the purposes for which it was created.
Interstate Building, etc., Asso. v. Wooten, 113 Ga. 247, 38
S. E. 738.
Same — Infringing General Law. — By-laws which infringe
the common or statute law of the state or a particular stat-
ute, relating to a corporation (provided the particular stat-
ute does not impair the obligation of the charter), are void.
The general assembly can not confer upon a corporation
the power to repeal by a by-law, a statute of the state.
Haywood v. Savannah, 12 Ga. 404.
Same — Must Be Reasonable. — If the by-laws of a cor-
poration are so unreasonable as to shock one's ideas ot
right and justice, a court of equity will interpose if prop-
erty be at stake. But courts of equity are slow to inter-
fere with the by-laws of an eleemosynary or a charitable
society, especially when the constitution and by-laws have
been passed upon and approved and sanctioned by the act
of incorporation. Hussey v. Gallagher, 61 Ga. 86.
Same — Giving Lien on Stock. — A by-law which asserts a
lien on the stock of members of a corporation, for debts
due the company, is, as between the corporators them-
selves, valid and binding. Tuttle v. Walton, 1 Ga. 43.
Same — Making Members Liable for Debts. — When neither
the charter of a corporation nor any general statute im-
poses on the individual members thereof a liability to pay
its debts, such liability can not be imposed by a by-law of
the corporation, and in such case equity will not entertain
a bill against the stockholders to enforce such liability.
Reid v. Eatonton Mfg. Co., 40 Ga. 98.
Same — Providing for Expulsion of Member. — Corpora-
tions have the power to pass by-laws providing for ex-
pulsion of members, but they have not an uncontrollable
discretion in the enforcement of such by-laws. In a proper
case the same may be construed by the court. State v.
Georgia Medical Society, 38 Ga. 608. See also, Hussey v.
Gallagher, 61 Ga. 86; United Bros. v. Williams, 126 Ga. 19,
54 S. E. 907. See note of the last case cited, under § 2218.
Same — Recital of Necessity Unnecessary. — Where a char-
ter or a statute empowers a corporation to pass such bv-
laws as are necessary, the by-law to be valid need not
recite that it was necessary, but the necessity will be im-
plied from the act of passing it. Tuttle v. Walton, 1 Ga. 43.
Same — Power to Amend. — As an incident to its power to
pass by-laws, a business corporation may make amend-
ments to its by-laws which are not inconsistent with its
charter or constitution. Crittenden v. Southern Home
Bldg., etc., Ass'n, 111 Ga. 266, 36 S. E. 643; Interstate
Bldg., etc., Asso. v. Wooten, 113 Ga. 247, 38 S. E. 738.
Same — Same — Regulating Mode of Business. — An amend-
ment to the by-laws of an insurance company, merely for
the purpose of regulating its mode of business, and adding
no new condition to the policies already issued, is binding
on the assured. Georgia Masonic, etc., Co. v. Gibson, 52
Ga. 640.
Same — Same — Impairment of Vested Rights. — While a
private corporation may at any time exercise in a lawful
manner its inherent right to amend, alter, or repeal its
by-laws, no amendment, alteration, or repeal thereof can
have the legal effect of defeating any vested right of its
stockholders. This is true because, under the fundamental
law of the land, power to adopt by-laws impairing the ob-
ligation of a contract can not be constitutionally conferred
upon a corporation. Interstate Bldg., etc., Asso. v. Wooten,
113 Ga. 247, 38 S. E. 738.
Same — On Whom Binding — Members. — Members of a
corporation are bound, in matters pertaining to their rights
and duties as such, by every by-law lawfully adopted. This
rule results, not from any supposed notice to them of the
by-law, but from the implied terms of their agreement of
membership; hence it is ordinarily immaterial whether
they have notice of a new by-law or not. Crittenden v.
Southern Home Bldg., etc., Asso., Ill Ga. 266, 36 S. E. 643;
Tuttle v. Walton, 1 Ga. 43.
Where given amendments to the by-laws of a corporation
were, under its charter and constitution, allowable, they
were not, as to a particular stockholder, fraudulent or void
[518]
§ 2217
POWERS AND LIABILITIES OF CORPORATIONS
§ 2219
merely because made without his knowledge, or because
he "has never ratified, acquiesced in, or consented to the
same." Maynard v. Interstate Bldg., etc., Asso., 112 Ga.
443, 37 S. E. 741; Crittenden v. Southern Home Bldg., etc.,
Asso., Ill Ga. 266, 36 S. E. 643.
A by-law is binding on a member of a corporation al-
though he was not a member at the time the by-law was
passed. Tuttle v. Walton, 1 Ga. 43.
Same — Same — Officers. — A by-law providing that official
salaries are to be fixed by the president and directors of a
corporation, is within the legal competency of a corpora-
tion to establish, and an officer accepting an appointment
and serving with knowledge of such by-law is to be under-
stood as undertaking the performance of his duties for such
salary as may be fixed by a fair and honest execution of
the by-law. Eagle, etc., Mfg. Co. v. Browne, 58 Ga. 240.
Power to Acquire and Hold Property. — "A corporation
can only purchase and hold such property, real and per-
sonal, as is 'necessary to the purpose of its organization,'
and it can only do such acts as are necessary for the legiti-
mate execution of this purpose." Central R. Co. v. Col-
lins, 40 Ga. 583, 643. For full treatment, see 4 Cum. Dig.
181, 3 Enc. Dig. 650.
The general rule is that where a corporation has ac-
quired possession and title to property, its right to hold it
can not be questioned by a private citizen, but in such a
case the state alone can make the question. Kohlruss v.
Zachery, 139 Ga. 625, 77 S. E. 812.
Same — Property Necessary for Purpose of Organization.
— Where a State statute provides that corporations "shall
make no contract, or purchase or hold any property oi
any kind, except such as is necessary in legitimately carry-
ing into effect" the declared purpose of the corporation,
the courts will not aid the corporation to compel specific
performance of a contract for the purchase of land which
it has no power under its charter to acquire and hold.
Kohlruss v. Zachery, 139 Ga. 625, 77 S. E. 812.
Power to Contract. — The power to make contracts would
seem to be an incident to every corporation, unless the
charter provides the contrary. Wood v. King, 45 Ga. 34.
For full treatment of power of corporations to contract with
illustrative cases, see 4 Cum. Dig. 175; 3 Enc. Dig. 643.
"Many contracts may be made which are not in an ab-
solute sense essential to the conduct of business, and yet
may be legitimate as advancing the principal business or
rendering it more profitable. Such contracts would not be
invalid." Kohlruss v. Zachery, 139 Ga. 625, 632, 77 S. E-
812.
Same — Negotiable Paper.— "Every trading corporation,
unless forbidden by its charter, has the power to issue
negotiable paper, in the due and ordinary course of its
business; and where a corporation having this power makes
or indorses such paper, although for an unauthorized pur-
pose, the defense of v ultra vires will not avail it as against
an innocent purchaser who bona fide and for value ac-
quires title to the paper before maturity." Jacobs' Phar-
macy Co. v. Southern Banking, etc., Co., 97 Ga. 573, 25
S. E. 171; Webb & Co. v. Watkins, 20 Ga. App. 436, 93 S.
E. 108. See 4 Cum. Dig. 175; 3 Enc. Dig. 644.
Same — Contracts of Partnership. — The power to form a
partnership is not one of those which is common to all
corporations, and charter authority is necessary. Gunn v.
Central Railroad, 74 Ga. 509; South Carolina, etc., R. Co.
v. Augusta Southern R. Co., 107 Ga. 164, 33 S. E. 36. For
other cases, see 4 Cum. Dig. 176.
Power to Assign to Officers — It is true that officers of a
corporation are trustees, and a sound public policy for-
bids the assignment to them of any of the corporate as-
sets while the corporation is insolvent, with a view to pre-
fer them as creditors for antecedent debts. Jones v. Ezell,
134 Ga. 553, 559, 68 S. E. 303. For full treatment of power
of corporation to assign for benefit of creditors and to pre-
fer creditors, see 4 Cum. Dig. 183, 3 Enc. Dig. 654.
Power to Alienate Franchise and Property. — For full
treatment of power to alienate Franchise and Property, see
4 Cum. Dig. 181, 3 Enc. Dig. 651. See also, § 2228.
Power to Make Donations.— The president of a railway
company incorporated under the general laws of Georgia
as a common carrier has no power, either with or without
the consent of its board of directors, to donate funds be-
longing to the corporation, or to execute in the corporate
name a note to be discounted in behalf of or to raise funds
as a recognized donation for the erection of a public school.
Brinson Ry. Co. v. Exchange Bank, 16 Ga. App. 425, S5
S. E. 634.
Can Not Be Licensed as a Peddler.— See § 1893, and note
thereto.
§ 2217. (§ 1853.) Visitorial powers. — Visitorial
power over corporations is vested in the superior
court of the county where such corporation is lo-
cated.
§ 2218. (§ 1854.) Rights of corporators.— Cor-
porators have a property interest in the franchise
of voluntary private corporations, of which they
can not be deprived except by due process of law.
Mandamus will lie against the corporation to en-
force such rights, if there is no other legal
remedy.
Cross References. — See § 6359. As to corporation right
in the amendment of charter, see § 2197. As to mandamus
by private person to enforce performance by corporation, see
§ 5442. As to dissolution by surrender of franchises, see
§ 2243. As to transfer of assets and liabilities by bank, sec
§ 2303.
Expulsion from Benefit Society. — Where a member of a
benefit society was expelled for the reason that such mem-
ber had testified as a witness against the society and there
was no claim that the testimony of the member was false,
it was held that the member purporting to have been ex-
pelled was entitled to admission and that mandamus was
an appropriate remedy to secure his restoration to his
rights as a member. United Bros. v. Williams, 126 Ga. 19,
54 S. E. 907.
§ 2219. (§ 1855.) Transfer of shares, when com-
plete.— Except as against the claims of the cor-
poration, a transfer of stock does not require a
transfer on the books of the company.
Cross References — .See § 2583. For full treatment of sale,
transfer and assignment of stock, see 10 Cum. Dig. 542; 11
Enc. Dig. 877. As to liability after transfer, see § 2247, and
note thereto.
Origin of Section. — This section was codified from the de-
cision in Southwestern R. Co. v. Thomason, 40 Ga. 408,
and its meaning is clear in connection with its context in
the decision. On page 411 it is said: "The transfer upon
the books of the company is only for the protection of the
company; it may have liens upon the stock, or it may re-
quire this mode in order that its own management may be
complete and within its grasp." The section does not
mean that an assignee of stock is not a stockholder of the
corporation for lack of a book transfer, when neither char-
ter nor by-law required this mode of transfer. Sylvania &
Girard R. Co. v. Hoge, 129 Ga. 734, 742, 59 S. E. 806. See
also Bank v. Bank, 120 Ga. 575, 48 S. E. 226.
Purpose. — The main reason for entering a transfer on the
books is to afford notice as to the ownership of the stock.
Guarantee Co. v. East Rome Co., 96 Ga. 511, 23 S. E. 503.
Transfer Passes Title. — The transfer and assignment of
stock in a corporation, either by absolute sale or by way
of pledge as security for a debt, passes to the vendee or
pledgee the title to such stock. Scott v. Flint River Pecan
Co., 159 Ga. 668, 126 S. E. 769. And where the stock of a
corporation is transferable only on its books, the purchaser
of the certificate, as between himself and the seller
gets absolute title, and as between himself and the corpora-
tion he acquires an equitable title, which they are bound
to recognize and permit to ripen into a legal title. Witham
v. Cohen, 100 Ga. 670, 674, 28 S. E. 505.
An indorsement in blank passes legal title of the stock
to the transferee. Thompson v. Selcer, 142 Ga. 809, 810, 83 .
S. E. 965.
Stock Subject to By-Law Lien. — If the stock is subject
to a by-law lien at the date the rights of a judgment cred-
itor attaches and notice thereof is given at the sheriff's
sale, the purchaser can not compel a transfer without pay-
ing the amount due the company by the stockholder.
Owens v. Atlantic Trust, etc., Co., 122 Ga. 521, 50 S. E-
379. See Peoples Bank v. Exchange Bank, 116 Ga. 820, 45
S. E. 269; Tuttle v. Walton, 1 Ga. 43.
Lien of Corporation. — But the mere fact that a certificate
of stock in a corporation embraced a recital that the same
was "transferable in person or by attorney only on the
books of the company on surrender of this certificate" did
not ipso facto give to the corporation any lien upon such
stock. Buena Vista Loan, etc., Bank v. Grier, 114 Ga.
398, 40 S. E. 284.
Necessity of Naming Transferee. — A transfer of a stock
certificate may be made without naming the transferee.
Thompson v. Selcer, 142 Ga. 809, 810, 83 S. E. 965.
Another Beneficially Interested. — A shareholder is not
prevented from exercising his right as such because an-
other may be beneficially interested in the ownership of
[519]
§ 2219
POWERS AND LIABILITIES OF CORPORATIONS
§ 2220
the stock. Sylvania, etc., R. Co. v. Hoge, 129 Ga. 734, 59
S. E- 806.
Effect of Pooling Agreement on Transfer. — A sale of
stock, by one who is a party to a pooling agreement, to
some of the other stockholders, in violation of its terms,
does not justify the corporation of its own motion, for that
reason alone, to refuse to recognize the validity of such
transfer. Sylvania, etc., R. Co. v. Hoge, 129 Ga. 734, 59
S. E. 806.
Vote of Assigned Stock. — "Where neither the charter,
the statute, nor corporate by-law requires a book trans-
fer, the assignee of a certificate of stock may vote thereon,
although the stock stands on the books of the company in
the name of the assignor." Sylvania, etc., R. Co. v. Hoge,
129 Ga. 734, 742, 59 S. E. 806. See also, Hardman v. Bar-
row, 147 Ga. 617, 95 S. E. 209.
Notice.— Where notice of a by-law lien is given on the
face of a stock certificate, the transferee takes subject to
any debt due by the stockholder to the corporation at the
time of the transfer, or which may arise before the cor-
poration has notice of the transfer of the script, but where
the certificate makes no reference to the existence of the
lien, a pledgee or transferee of corporate stock is not af-
fected by the terms of a by-law lien of which he has no
notice. Bank v. Bank, 120 Ga. 575, 48 S. E. 226.
Where the charter of a bank provides that no assign-
ment of stock shall be valid, as against it, unless a formal
transfer of the same be made on its books, it is the right of
a bank to treat a stockholder as the true owner of stock
issued to him, and to deal with him accordingly, until it
receives notice that the stockholder has assigned his stock
to a third person; otherwise after notice is brought home
to the bank, even though there has been no attempt on
his part to secure a formal transfer of the stock upon its
books. Peoples Bank v. Exchange Bank, 116 Ga. 820, 45
S. E. 269.
Same — Transferee Not Charged with Notice. — A state-
ment in a stock certificate that the same is "transferable
only on the books of the corporation, in person or by at-
torney, on surrender of the certificate" does not charge
the transferee with notice of what is on the books of the
company, or of the existence of the lien, or of the fact of
the stockholder's indebtedness to the company. Bank v.
Bank, 120 Ga. 575, 48 S. E. 226.
How Made. — A transfer is not necessarily made on the
back of the scrip. A statement in a collateral note that the
stock has been deposited as security for the debt, and
that on default the lender might sell at public outcry and
purchase, is sufficient to give the purchaser at the sale a
title which will support a demand for a transfer and a new
certificate. Bank v. Bank, 120 Ga. 575, 48 S. E. 226. In
fact, in Sylvania R. Co. v. Hoge, 129 Ga. 734, 742, 59 S. E.
806, it is held that any mode or form of conveyance suffi-
cient in law to transfer title^ entitles the assignee to all
the rights and benefits accruing to the owner.
Transfer Not a Warranty of Title. — In the absence of
any fraud or collusion on the part of the company, the mere
transfer of the stock on the books thereof to the purchaser
of the stock, will not make the company liable as a
guarantor or warrantor of the vendor's title to the stock.
The purchaser of the stock must look to him from whom
he purchased it. Central R., etc., Co. v. Ward, 37 Ga.
Rep. 515; Nutting v. Thomason, 46 Ga. 34, 40.
"The remedy of mandamus does not lie to compel the
transfer of stock in a corporation, except in the case of a
judicial sale thereof." Scott v. Flint River Pecan Co., 159
Ga. 668, 126 S. E- 769; Terrell v. Georgia R., etc., Co.,
115 Ga. 104, 41 S. E. 262. For other cases, see 11 Enc. Dig.
880.
Proceeding in Equity by Transferee. — Where the vendor
and the agents of a company refuse to recognize the valid-
ity of a sale or to allow a transfer on the books of the
company, the purchaser may bring an equitable proceed-
ing against the vendor and the company to restrain the
former from disposing of the stock or interfering with its
transfer, and to compel the company to make the trans-
fer and receive the purchaser as a shareholder. Thornton
v. Martin, 116 Ga. 115, 42 S. E. 348. And this same rule
applies to taking shares as a pledge with an assignment in
blank. Scott v. Flint River Pecan Co., 159 Ga. 668.
And whether or not the transfer of the stock by a rail-
road company which issued it was irregular for want of
special power of attorney, yet the complainant having come
into a court of equity, and the sale of the shares by her
agent having conveyed the title to the purchaser, they
could compel a transfer to be made by the company; and
having already been made, it will be confirmed. Blaisdell
v. Bahr, 77 Ga. 381.
But a decree requiring a corporation to make a trans-
fer of stock in the books of the corporation can not be
rendered at an interlocutory hearing. Scott v. Flint
River Pecan Co., 159 Ga. 668, 126 S. E- 769.
Action of Assumpsit on Case. — An action of assumpsit on
case will lie against a corporation for refusing to permit a
transfer of its stock upon the books of the corporation.
Bank v. Harrison, 66 Ga. 696. See Tuttle v. Walton, 1
Ga. 43.
Damages for Refusal.— The illegal refusal of the presi-
dent of a corporation to permit the transfer of stock makes
the corporation liable for any damages resulting from the
refusal. Hilton v. Sylvania, etc., Co., 8 Ga. App. 10, 68 S.
E. 746. See also Citizens Bank v. Bank, 24 Ga. App. 435,
101 S. E. 203.
But a petition must contain allegations of facts showing
damage from the refusal. Hilton v. Sylvania, etc., Co., 8
Ga. App. 10, 68 S. E. 746.
Same — Measure of Damages. — The measure of damages
for the failure to make a transfer and issue a certificate
to the purchase is the value of the stock at the time of
the demand and refusal. Bank v. Bank, 120 Ga. 575, 48
S. E. 226. See also, Bank v. Ray, 21 Ga. App. 620.
Right of Pledgee to Dividends. — The pledgee has a right
to collect dividends in absence of agreement. Guaranty
Co v. East Rome Co., 96 Ga. 511, 23 S. E. 503.
Applied in Massengale v. Hodgson, 148 Ga. 97, 95 S. E.
975; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212,
33 S. E. 175.
§ 2220. (§ 1856.) Organization before capital
subscribed for. — Persons who organize a com-
pany and transact lousiness in its name, before
the minimum capital stock has been subscribed
for, are liable to creditors to make good the mini-
mum capital stock with interest.
Cross References.— See §§ 2247, 2823 (3). For full treat
ment of promoters and acts prior to incorporation, see 4
Cum. Dig. 152, 3 Enc. Dig. 609. As to organization of
Canal Companies, see § 2369. As to organization of Ex-
press Companies, see § 2382.
In General. — As a matter of law, when the stock of a
corporation is not subscribed for up to the minimum
amount of capital fixed by the charter, and none of it is
paid in, if the corporators organize, elect themselves offi-
cers, proceed to business, contract debts up to and be-
yond the nominal capital, having paid in nothing what-
ever, they commit a legal fraud by so doing, and are liable
to creditors to make good the minimum capital, together
with interest thereon, should this be necessary to dis-
charge the corporate debts. Howard v. Long, 142 Ga. 789,
792, 83 S. E. 852; Smith v. Citizens, etc., Bank, 148 Ga.
764, 98 S. E- 466.
Purpose.— The requirement of this section, is obviously
for the purpose of creating a fund, when the subscriptions
to the amount of the minimum capital stock shall have
been paid, for the ultimate benefit of those who may ex-
tend credit to the corporation. Farwell Co. v. Jackson
Stores, 137 Ga. 174, 73 S. E. 13. See also Smith v. Citi-
zens, etc., Bank, 148 Ga. 764, 98 S. E- 466.
Strictly Construed. — As this section is in derogation of
the common law it must be strictly construed. Ham v.
Robinson Co., 146 Ga. 442, 446, 91 S. E. 483; Farwell Co. v.
Jackson Stores, 137 Ga. 174, 73 S. E. 13, and cases there
cited.
This section is remedial, and not penal; and a cause of
action thereunder does not abate with the death of one
liable by virtue of the statute. Ham v. Robinson Co., 146
Ga. 442, 91 S. E. 483.
Applicable to All Corporations. — The provisions of this
section are explicit and apply to all business corporations
chartered under the laws of this State. Walters v. Porter,
3 Ga. App. 73, 76, 59 S. E. 452.
Upon principle this section applies to private corpora-
tions generally including among others banking corpora-
tions. Smith v. Citizens, etc., Bank, 148 Ga. 764, 98 S. E.
466.
Not Applicable to Actions Ex Delicto. — The cause of ac-
tion given to creditors under this section, against per-
sons who organize a company and transact business in its
name before the minimum capital stock has been sub-
scribed, does not include an action by one whose claim or
demand against the corporation is ex delicto and does not
spring from contract, express or implied. Howard v. Eong,
142 Ga. 789, 83 S. E- 852.
What Constitutes "Minimum Capital Stock." — Where
the application for charter and the charter of the corpora-
tion name only one sum as the proposed capital of the
corporation, that sum is the "minimum capital stock"
[ 520 ]
§ 2220
POWERS AND LIABILITIES OF CORPORATIONS
§ 2222
which this section requires to be subscribed for in order
to relieve the organizers of the corporation from individual
liability to creditors. Rosenheim Shoe Co. v. Home, 10
Ga. App. 582, 73 S. E. 953; Smith v. Citizens, etc., Bank,
148 Ga. 764, 98 S. E. 466.
Same — Only Bona Fide Subscriptions Counted. — In de-
termining whether the minimum capital stock in a corpora
tion has been subscribed, only bona fide subscriptions should
be counted; and colorable and illusory subscriptions, and
conditional subscriptions, unless the conditions have been
performed and the subscriptions thus made absolute be-
fore the persons organizing such corporation begin business
in its name, should be rejected. Athens Apartment Corp.
v. Hill, 156 Ga. 437, 119 S. E. 631.
Evasion of Section. — Organizers should not be allowed to
evade this section by disposing of their stock. Farwell Co.
v. Jackson Stores, 137 Ga. 174, 73 S. E. 13; Walters v.
Porter, 3 Ga. App. 73, 59 S. E- 452. See also Smith v.
Citizens, etc., Bank, 148 Ga. 764, 98 S. E. 466.
Liability of Incorporators Not a Corporate Asset. — The
liability which, under this section, attaches to the organi-
zers of a corporation, for beginning to do business before
the minimum capital stock is subscribed for, attaches in
favor of creditors, and not in favor of the corporation it-
self. It is a liability which a trustee in bankruptcy of
the corporation can not legally enforce. Rosenheim Shoe
Co. v. Home, 10 Ga. App. 582, 73 S. E. 953; Hill v. Jack-
son Stores, 137 Ga. 174, 73 S. E. 13; Rigbus v. Hathcock,
138 Ga. 120, 74 S. E- 834; Wells v. Du Bose, 140 Ga. 187,
78 S. E. 715.
Section 2249, making the individual liability of a stock-
holder under the charter of the corporation an asset of
such corporation, applies to those who have subscribed for
stock, and not to the liability prescribed by this section,
which is a liability to creditors imposed upon organizers
of a company who transact business in its name, whether
they be actual stockholders or not. This distinction is
recognized in Commercial Bank v. Warthen, 119 Ga. 990,
994, 47 S. E. 536. Farwell Co. v. Jackson Stores, 137 Ga.
174, 73 S. E. 13. See Editor's Note under § 2249 comment-
ing on the case of Walters v. Porter, 3 Ga. App. 73, 59 S.
E. 452.
Effect Upon Paid up Stockholders. — Under this section
when strictly construed, as it must be, stockholders who
paid their subscriptions in cash are not chargeable with
the deficiency in the minimum capital resulting from the
fact that other subscribers, who had received certificates,
were insolvent or had an illegal agreement as to the pay-
ment for their shares, especially in the absence of aver-
ments charging the defendant stockholders with an agree-
ment to evade a genuine subscription to the minimum
capital stock. Andrews v. Willingham, 286 Fed. 117.
Participation in Transaction of Business Essential to
Liability. — Under this section, participation in the trans-
action of the business as well as in the organization of the
company is essential to liability, so that a bill failing to
allege that defendant stockholders participated in the
transaction of the business by the company was insuffi-
cient. Andrews v. Willingham, 286 Fed. 117. See also
Rozar v. Rosenheim Shoe Co., 14 Ga. App. 13, 80 S. E. 124;
Farwell Co. v. Jackson Stores, 137 Ga. 174, 73 S. E. 13.
Provisional Contracts. — Prior to the formal and com-
plete organization of a corporation, the organizers of it
may make provisional contracts in behalf of the corpora-
tion, which may become binding on the corporation after it
begins business; but in the meantime, and until the cor-
poration is legally organized, the promoters are liable as
partners. Rosenheim Shoe Co. v. Home, 10 Ga. App. 582,
73 S. E. 953.
Breach of Lease Contract Constitutes Debt. — The claim
of- the plaintiff for damages for breach of a contract of
lease, where the persons who organized the company trans-
acted business in its name before the minimum capital
stock had been subscribed, was a debt within the meaning
of this section. American Ice Cream Mfg. Co. v. Economy
Laundry Co., 148 Ga. 624, 97 S. E. 678.
Notice to Creditor. — If at the time credit was extended
the creditor knew that the requisite amount of capital
stock had not been subscribed, he would not have been
misled, and as to him the persons organizing the corpora-
tion and transacting business in its name would not be
estopped from pleading such knowledge as a defense to a
suit brought under this section. Athens Apartment Corp.
v. Hill, 156 Ga. 437, 119 S. E. 631; Lowe v. Byrd, 148 Ga.
388, 390, 96 S. E. 1001; Farmer's Warehouse, etc., Co. v.
Macon Fertilizer Works, 150 Ga. 429, 104 S. E. 207. See
also Rozar v. Rosenheim Shoe Co., 14 Ga. App. 13, 80 S.
E. 124.
Action by One Creditor. — An action at law based on
this section can not be maintained by one creditor among
many for the appropriation of the whole or any part of
such liability to his own benefit, to the possible exclusion
of all or any of the other creditors, but the remedy
is in equity by a petition brought at the instance of one or
more creditors and in behalf of all other creditors who
may come in and be made parties plaintiff to the action.
Horner v. Henning, 93 U. S. 228, 23 L. Ed. 879; Hill v.
Jackson Stores, 137 Ga. 174, 73 S. E. 13.
The decisions of the supreme court to the effect that,
under charter making each stockholder in banking cor-
porations liable to redeem his proportionate share of the
outstanding bills or indebtedness of the bank, a single
creditor may sue at law any individual stockholder, are
not in conflict with the ruling above announced; for there
the liability of the stockholder is several, and is limited
to the amount of his stock, a fixed sum easily ascertained.
See Hill v. Jackson Stores, 137 Ga. 174, 73 S. E. 13.
Action by Receiver. — Action can not be maintained un-
der this section by receivers of creditors. Wells v. Du
Bose, 140 Ga. 187, 78 S. E. 715.
Joinder of Defendants. — There is no misjoinder where a
petition brought by several creditors, makes the corpora-
tion and the individuals who conducted the business, code-
fendants. Bacon v. Michelin Tire Co., 160 Ga. 591, 128 S.
E. 906.
Expenses of Litigation. — In an action brought by the
creditors of a corporation to recover on the liability fixed
by this section, expenses and attorneys' fees for the bring-
ing of the suit are not recoverable as against the defend-
ants. Farwell Co. v. Jackson Stores, 137 Ga. 174, 73 S.
E. 13.
Evidence Sufficient. — Whether, in a suit based upon this
section, a judgment against the corporation is conclusive
of the existence of the debt by the corporation, and that
the person in whose favor such judgment was rendered is
a creditor of the corporation, or whether the judgment is
only prima facie evidence, the finding in favor of the
plaintiff, who had recovered a judgment against the cor-
poration, was authorized by the evidence. Wells v. Ivey,
144 Ga. 548, 87 S. E. 661.
Quoted or Cited.— Riley v. Pare, 168 Fed. 851; Beermann
v. Economy Laundry Co., 153 Ga. 21, 111 S. E. 399.
§ 2221. (§ 1857.) Contracts between corpora-
tions having officers in common. — A contract
otherwise fair is not rendered void by the fact
that the contracting parties consist of corpora-
tions having the same persons or officers in each.
See 4 Cum. Dig. 175.
Contracts Between Private and Municipal Corporations.
— A contract entered into between a private corporation
and a city, under which the former is to perform certain
work for which payment is to be made out of the city
treasury, is void if at the time of its execution one of the
members of the city council was also a stockholder in such
private corporation. Hardy v. Mayor, 121 Ga. 327, 48 S.
E. 921.
Not Necessarily Binding. — Contracts made by one corpora-
tion are not binding upon another corporation merely be-
cause the stock in both is owned by the same persons.
Waycross Air-Line R. Co. v. Offerman, etc., R. Co., 109
Ga. 827, 35 S. E. 275.
§ 2222. (§ 1858.) Directors of insolvent cor-
porations. — Directors primarily represent the
corporation and. its stockholders, but when the
corporation becomes insolvent they are bound to
manage the remaining assets for the benefit of its
creditors, and can not in any manner use their
powers for the purpose of obtaining a preference
or advantage to themselves.
Director Occupies Fiduciary Relation. — While he does not
hold title and is not a strict trustee, a director does oc-
cupy a fiduciary relation to the stockholders with refer-
ence to their shares. Oliver v. Oliver, 118 Ga. 362, 45 S.
E. 232.
The directors and managers of a corporation, who con-
trol and have charge of its effects, are trustees for the
stockholders, and both they and others who, with the
knowledge of their misappropriation, aid them in diverting
its property, would be liable to the injured parties. At-
lanta Real Estate Co. v. Atlanta Nat. Bank, 75 Ga. 40.
Equity Proper Forum. — Equity was the proper forum in
which to seek relief in such a case, and the bill was
properly brought in the name of some of the stockholders
[521]
§ 2223
POWERS AND LIABILITIES OF CORPORATIONS
§ 2224
in behalf of themselves and such of their co-corporators as
are in a similar condition. Atlanta Real Estate Co. v. At-
lanta Nat. Bank, 75 Ga. 40.
Preferences. — Where officers of a private corporation
own all of the stock and the assets are sold, the officers
are under the duty to apply the proceeds primarily to
corporate debts. Such officers could not lawfully apply
the proceeds to the payment of existing debts owing to
them personally, or give preference to debts due other per-
sons for which the directors are primarily liable. Tatum v.
Leigh, 136 Ga. 791, 72 S. E. 236. See also Atlas Tack Co.
v. Exchange Bank, 111 Ga. 703, 36 S. E. 936.
Same — Mortgage. — A mortgage given by a corporation at
a time when the corporation is insolvent to one of its di-
rectors to secure a preexisting debt is void. Monroe Mer-
cantile Co. v. Arnold, 108 Ga. 449, 462, 34 S. E. 176.
But a preference by mortgage given by an insolvent
corporation, for the purpose of securing the payment of an
antecedent debt, is not necessarily void merely because a
director, who has become liable as surety or endorser upon
such debt, would be incidentally benefited by the giving of
the mortgage, if done in good faith. Atlas Tack Co. v.
Macon Hardware Co., 101 Ga. 391, 29 S. E. 27.
Loan By Director to Corporation. — When money is loaned
to a corporation by one of its directors, and a note is given
therefor, with the corporate name signed by its president,
secretary, or treasurer, in which note it is stipulated that
the payee of the note shall be protected in the event of a
failure, or assignment, on the part of the corporation, if it
should appear that this contract was not made through
the duly authorized body of the corporation empowered to
make such negotiation, the mortgage afterwards given to
secure the note is void. Monroe Mercantile Co. v. Arnold,
108 Ga. 449, 34 S. E. 176.
Right of Action in Trustee in Bankruptcy. — Where the
directors or sole managers of an insolvent corporation ob-
tain a preference or advantage the right of action to re-
cover such assets, after the corporation has been ad-
judged a bankrupt, is in the trustee of the bankrupt, and
not in a creditor who sues for himself and all other cred-
itors. Hall Hdw. Co. v. Eadson Brick, etc., Co., 160 Ga.
341. 127 S. E. 754.
Before a creditor can maintain such an action, the peti-
tion disclosing the adjudication of bankruptcy, he should
allege that there is no trustee. Hall Hdw. Co. v. Eadson
Brick Co., 160 Ga. 341, 127 S. E. 754.
§ 2223. (§ 1859.) Majority stockholders entitled
to control. — So long as the majority stockholders
confine themselves within the charter powers, a
court of equity will require a strong case of mis-
management, or fraud, before it will interfere
with the internal management of the affairs of a
corporation.
In General — In Hand v. Dexter, 41 Ga. 454, 461, it was
said that, "The very foundation principle of a corporation
is that the majority of its stockholders have the right to
manage its affairs, so long as they keep within their
charter rights." Winter v. Southern Securities Co., 155
Ga. 590, 602, 118 S. E. 214.
"The majority stockholders, or the majority of the di-
rectors, when directors are chosen to act on behalf of the
stockholders, have the right to determine the business
policy of the corporation, and the minority must submit to
their judgment in such matters, when exercised in good
faith and not involving acts ultra vires, or in breach of
trust." Winter v. Southern Securities Co., 155 Ga. 590,
602, 118 S. E. 214.
Agreement to Name Directors.— An agreement between
two factions of the shareholders of a railroad company in-
corporated by the Secretary of State, to the effect that
one of such factions, owning half of the corporate stock,
shall have the right indefinitely to name a majority ot
the directors of the company, and thus manage and con-
trol its affairs, is against public policy and, therefore, void.
Morel v. Hoge, 130 Ga. 625, 61 S. E. 487.
Municipal Corporations.— The business affairs of a munic-
ipality are committed to the corporate authorities, and
the courts will not interfere except in a clear case of mis-
management or fraud. McMaster v. Mayor, 122 Ga 231
50 S. E. 122.
Quoted and applied in Bartow Eumber Co. v. Enwright,
131 Ga. 329, 62 S. E. 233; Millet v. American Mica Co
147 Ga. 8, 92 S. E. 515.
§ 2224. (§ 1860.) Proceedings by minority
stockholders, when allowed. — A minority stock-
[5
holder may proceed in equity in behalf of him-
self and other stockholders for fraud, or acts
ultra vires, against a corporation, its officers and
those participating therein, when he and they are
injured thereby. But there must be shown — -
1. Some action or threatened action of the di-
rectors beyond the charter powers; or,
2. Such a fraudulent transaction completed or
threatened, among themselves or shareholders or
others, as will result in serious injury to the com-
pany or other shareholders; or,
3. That a majority of the directors are acting
in their own interest in a manner destructive of
the company, or of the rights of the other share-
holders; or,
4. That the majority stockholders are oppres-
sively and illegally pursuing, in the name of the
corporation, a course in violation of the rights of
the shareholders, which can only be restrained by
a court of equity; and it must also appear — ,
5. That petitioner has acted promptly; that he
made an earnest effort to obtain redress at the
hands of the directors and stockholders, or why
it could not be done, or it was not reasonable to
require it.
6. The petitioner must show that he was a
shareholder at the time of the transaction of
which he complains, or that his shares have de-
volved on him since by operation of law.
For full treatment of rights of minority stockholders, see
10 Cum. Dig. 557; 11 Enc. Dig. 885.
Suit by Minority against Third Parties. — Where a peti-
tion sets forth a suit by minority stockholders against a
third party, and the corporation is necessarily joined, but
the right to bring the suit is based upon the sole ground
that the directors refuse to do so and no act ultra vires is
alleged nor any fraud or collusion charged; and since un-
der this section, such a charge is essential to the right
of minority stockholders to question the acts of directors
or majority stockholders it was not error upon general
demurrer to dismiss the petition. Bush v. Bonner, 156 Ga.
143, 118 S. E. 658.
Enjoining Increase of Capital Stock. — The superior court
has jurisdiction to enjoin a corporation from applying for
an increase of its common capital stock in excess of the
amount authorized by its charter, at the instance of the
minority stockholders, in a proper case made. Macon Gas
Co. v. Richter, 143 Ga. 397, 85 S. E- 112.
Delay in Obtaining Redress. — Delay of the complaining
minority to obtain redress is fatal. Winter v. Southern
Securities Co., 155 Ga. 590, 118 S. E. 214.
Suspension of Business. — Where a corporation suspended
active business, due to conditions, a petition by a minority
of stockholders based on such ground held demurrable.
Albright v. Fulton County Home Builders, 151 Ga. 485, 107
S. E. 335.
Suits against Insolvent Corporation. — A petition by mi-
nority stockholders of an insolvent corporation which has
been placed in the hands of a receiver, brought twenty -six
months after his appointment, with a view to obtaining
leave to institute proceedings against the directors of the
corporation, of whom he was one, for the purpose of calling
them to account for alleged misconduct in conducting its
business, is not premature for the reason that the affairs
of the corporation have not been wound up and the extent
of the liability of the directors ascertained; nor are the
petitioners chargeable with laches in not sooner presenting
their petition. Weslosky v. Quarternlan, 123 Ga. 312, 51
S. E- 426.
The receiver not being himself competent to bring such a
proceeding against himself and his fellow-directors, it was
within the discretionary power of the court to permit the
complaining minority stockholders to maintain the action in
behalf of themselves and others similarly situated, joining
the receiver and the corporation as parties defendant. Wes-
losky v. Quarterman, 123 Ga. 312, 51 S. E. 426.
Estoppel. — A minority stockholder who co-operated in the
consummation of the sale of the physical properties of a
corporation, and, with a knowledge that the sale had been
made and the purchase -price paid, stood by and saw the
purchaser expend large sums in the improvement of the
property without objection, and inexcusably waited an un-
22 ]
§ 2225
POWERS AND LIABILITIES OF CORPORATIONS
§ 2225
reasonable time before making objection, will be estopped
by his laches and conduct from attacking the validity of
the sale as ultra vires or as having been irregularly made.
Bridges v. Southern Bell Telephone, etc., Co., 136 Ga. 251,
71 S. E- 161.
Quoted and applied in Smith v. Coolidge Bkg. Co., 147 Ga.
7, 92 S. E. 519; Millett v. American Mica Co., 147 Ga. 8,
92' S. E. 515.
§ 2225. (§ 1861.) Responsibility for acts of
officers. — Every corporation acts through its of-
ficers, and is responsible for the acts of such of-
ficers in the sphere of their appropriate duties;
and no corporation shall be relieved of its lia-
bility to third persons for the acts of its officers
by reason of any by-laws or other limitation up-
on the power of the officer, not known to such
third person.
For full treatment of liability of corporations for acts of
its officers and agents, see 9 Cum. Dig. 66; 9 Enc. Dig. 800.
As to liability of railroad company for injury to person or
property, see § 2779.
Burden of Determining Agency and Extent. — Persons deal-
ing with one who purports to act in behalf of a corporation
do so at their own risk, as to whether such person is in
fact the agent of the corporation and authorized to act for
it, or not, with this proviso, that they are protected if the
agent is held out by the company, as being the agent em-
powered to transact such business. Fitzgerald Cotton Oil
Co. v. Farmers Supply Co., 3 Ga. App. 212, 218, 59 S. E.
713. See also, Johnson v. Waxelbaum, 1 Ga. App. 511, 58
S. E. 56. And this is true notwithstanding a corporate by-
law or other limitation upon the power of the officer, not
known to a party dealing with him. Eminent Household
v. Benz & Co., 11 Ga. App. 733, 76 S. E- 99; Stubbs v.
Fourth Nat. Bank, 12 Ga. App. 539, 77 S. E. 893; Blakely
Artesian Ice Co. v. Clarke, 13 Ga. App. 574, 581, 79 S E.
526; Georgia Hussars v. Haar, 156 Ga. 21, 25, 118 S. E.
563.
Under this rule a note made payable to the order of a
named corporation, indorsed in the name of the corporation
by its secretary and treasurer, is sufficient to transfer the
title to the note, in the absence of notice by the indorser
that the secretary and treasurer had no authority to make
the indorsement and transfer for the corporation. Stubbs
v. Fourth Nat. Bank, 12 Ga. App. 539, 77 S. E. 893.
Adverse Interest of Agent Making Representations. —
Where the agent of a corporation is directly interested by
agreement, with a third person in prospective profits to
result from the purchase by the third person of personal
property from his principal, representations made by him
to the purchaser as to% the quantity, quality, or location
of the property can not have a binding effect against the
interest of the corporation. New Ware Furniture Co. v.
Reynolds, 16 Ga. App. 19, 84 S. E. 491.
Estoppel. — If the holder of an incumbrance upon property
be a corporation, and the agent of such corporation fur-
nishes the purchaser of such property with information as
to the amount of the incumbrance the officer giving the
information acting within the sphere of his appropriate du-
ties, the corporation would be estopped, as against the per-
son who acted on such information, from claiming any
larger amount than the sum fixed by the officer in his
statement. Fulton Building & Loan Association v. Green-
lea, 103 Ga. 376, 29 S. E. 932.
Contracts Generally. — A corporation is not originally bound
by a contract unless the agent purporting ,to make it was
in fact authorized to make the particular contract. South-
ern Exp. Co. v. Cowan, 12 Ga. App. 318, 77 S. E. 208.
For full treatment of liability of corporations for acts
of its officer executing contracts, see 9 Cum. Dig. 67;
9 Enc. Dig. 800.-
If the directors of a corporation, by a long course of
dealing, entrust the management of its business to the
president, and permit him to carry on such business and
td make contracts for the corporation in connection there-
with, contracts made by him incident to and forming part
of the operation of the business will be binding on the
corporation, whether or not expressly authorized by the
by-laws or by formal action of' the directors. Potts -
Thompson Liquor Co. v. Potts, 135 Ga. 451, 69 S. E. 734.
For other cases, see 9 Cum. Dig. 67.
Loan to Corporation. — One who lends money to a cor-
poration upon the note of an officer of the corporation,
who is authorized to execute the note, is not bound to
follow the fund and to see that the corporation actually
receives the money from its agent who executed the
note. Oklahoma Asphalt, etc., Co. v. Phillips, 14 Ga. App.
356, 80 S. E. 863.
Collateral deposited by an agent of a corporation to
borrow money is not recoverable by trover, especially is
this true where the corporation received the money. Ok-
lahoma Asphalt, etc., Co. v. Phillips, 14 Ga. App. 356,
80 S. E. 863.
Sales on Credit. — Where a purchaser is charged with
notice that an agent is only authorized to sell for cash,
a sale on credit may be treated as void by the principal,
hence a conveyance by an agent authorized to sell, if
made to a corporation of which he is president and a
stockholder, may likewise be treated as void by the prin-
cipal. Whitley v. James, 121 Ga. 521, 49 S. E. 600; Red
Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674.
Authority of General Manager. — By conferring upon one
of its officers the title "General Manager," a railroad cor-
poration holds him out to the world as possessing the im-
plied power to make in its behalf a written contract to
repair a sleeping-car used on its line of railway. Raleigh,
etc., Railroad Co. v. Pullman Co., 122 Ga. 700, 50 S. E.
1008, and see Outcault Advertising Co. v. American Fur-
niture Co., 10 Ga. App. 211, 212, 73 Ga. 20.
Authority of Superintendent. — The superintendent of a
waterworks company had authority to make a contract
generally on behalf of the company with its customers.
Milledgeville Water Co. v. Edwards, 121 Ga. 555, 49 S.
E. 621.
Authority of Special Agent. — The appointment by a
corporation of a special agent for a special purpose, no
matter how often made, does not authorize other persons
to deal with him upon the theory that he is a gener.tl
agent of the corporation. Blakely Artesian Ice Co. v.
Clarke, 13 Ga. App. 574, 582, 79 S. E. 526.
Presumption of Authority from Use of Seal. — If a con-
tract is executed under the seal of the corporation, a pre-
sumption of authority arises. Garmany v. Lawton, 124
Ga. 876, 53 S. E- 669; American Inv. Co. v. Cable Co., 4
Ga. App. 106, 60 S. E. 1037; Nelson v. Spence, 129 Ga. 35,
58 S. E. 697. For full treatment, see 9 Cum. Dig. 69, 9
Enc. Dig. 803.
Same — Presumption Rebuttable. — The presumption arising
from the use of the corporate seal is rebuttable. Cannon
v. Gorham, 136 Ga. 167, 71 S. E. 142; Jones v. Ezell, 134
Ga. 553, 557, 68 S. E. 303. For other cases, see 9 Cum.
Dig. 69; 9 Enc. Dig. 803.
Same — Deeds. — Where the corporate name is signed to a
deed by the president thereof, with the corporate seal at-
tached, the presumption is that the official or executive
officer was authorized to execute the conveyance on be-
half of the corporation. Augusta Land Co. v. Augusta
R., etc., Co., 140 Ga. 519, 79 S. E. 138. See Cannon v.
Gorham, 136 Ga. 167, 71 S. E. 142; Taylor v. Hartsfield,
134 Ga. 478, 68 S. E. 70. And in Bank v. Clark, 138 Ga.
798, 76 S. E. 95, it was held that there was no presump-
tion of authority, where a deed was signed in the name of
the company, but contained no reference to its corpo-
rate seal.
Same — Mortgages. — The rule stated in the preceding par-
agraph applies to the execution of mortgages as well as
deeds. See Carr v. Georgia Loan, etc., Co., 108 Ga. 757,
33 S. E. 190; Nelson v. Spence, 129 Ga. 35, 58 S. E. 697;
Jones v. Ezell, 134 Ga. 553, 68 S. E. 303.
Ratification by Accepting Benefits. — If on the trial of
the case it should appear that the officers were without au-
thority to execute the various contracts, but did in fact ex-
ecute them, and the fruits thereof were applied to proper
corporate use, the corporation will still be liable, notwith-
standing its officers may have been without specific au-
thority to execute the particular form of the contract. Jones
v. Ezell, 134 Ga. 553, 556, 68 S. E. 303; Ocilla Southern R.
Co. v. Morton, 13 Ga. App. 504, 79 S. E. 480. See also, Bank
v. Clark, 138 Ga. 798, 76 S. E. 95.
But where a petition alleges that a corporation ratified
the acts of its agent by receiving some of the money col-
lected by him through false representations, and does not
allege that the corporation had full knowledge of all the
facts when the money was received, it does not show a rat-
ification. Butler v. Standard, etc., Trust Co., 122 Ga. 371,
50 S. E. 132. See Whitley v. James, 121 Ga. 521, 49 S. E-
600.
Notice — General Rule. — Notice to an officer or agent of a
corporation, acting for it in connection with its business,
and within the scope of his agency, is notice to his prin-
cipal. Holland v. McRae Oil, etc., Co., 134 Ga. 678, 68 S.
E. 555; Wallis v. Heard, 16 Ga. App. 802, 86 S. E- 391. For
other cases, see 9 Cum. Dig. 71; 9 Enc. Dig. 804.
Same — Notice to a Partner of Officer. — Notice to one part-
ner is usually constructive notice to the other partner but
is not usually notice to a corporation of which that other
partner is an officer. Baskins v. Valdosta Bank, etc., Co.,
5 Ga. App. 600, 63 S. E. 648.
Same — Officer Acting in Private Capacity. — A corporation
[523]
§ 2226
POWERS AND LIABILITIES OF CORPORATIONS
§ 2227
is not to be charged with notice of facts of which its presi-
dent acquires knowledge while dealing in his private capac-
ity and in his own behalf with third persons; nor is knowl-
edge on his part thus acquired imputable to the corpora-
tion when, acting through another official, it deals with
him at arm's length as with any other individual repre-
senting himself alone. Union City Realty, etc., Co. v.
Wright, 145 Ga. 730, 740, 89 S. E. 822; Reed- v. West Loan,
etc., Co., 22 Ga. App. 397, 95 S. E. 1002. See for further
treatment, 9 Cum. Dig. 727; 9 Enc. Dig. 704.
§ 2226. (§ 1862.) No collateral attack as to cor-
porate existence. — The existence of a corpora-
tion, claiming a charter under color of law, can
not be collaterally attacked. All who have dealt
with a corporation as such are estopped from
denying its corporate existence.
See 3 Cum. Dig. 165; 3 Enc. Dig. 623.
Contracts with Corporations. — All who deal with a cor-
poration as such are estopped from denying its corpo-
rate existence or its right to control as such. Dorris v.
Farmers, etc., Bank, 22 Ga. App. 514, 96 S. E. 450; Eden-
field v. Bank, 7 Ga. App. 645, 67 S. E. 896; Brooke v.
Day, 129 Ga. 694, 696, 59 S. E- 769. For a collection of
cases for this proposition, see 3 Cum. Dig. 165; 3 Enc.
Dig. 623.
One who has contracted with a corporation as such, is
estopped to deny its existence as a corporation at the date
of the contract, in any suit arising thereunder; and in
such case the corporation is designated a corporation.
Brown v. Atlantic R., etc., Co., 113 Ga. 462, 39 S. E. 71;
Petty v. Brunswick, etc., R. Co., 109 Ga. 666, 35 S.
E. 82.
If one dealt with a company as a corporation and re-
ceived notes from it as such, he could not afterwards, in
seeking to enforce the contract, deny the corporate ex-
istence. Planters, etc., Bank v. Padgett, 69 Ga. 159.
Estoppel by Matter of Record. — A plaintiff who proceeds
against a defendant as a corporation is estopped to deny
its corporate existence, and is bound by the terms of the
charter as to the principal office of the corporation.
Etowah Milling Co. v. Crenshaw, 116 Ga. 406, 42 S. E-
709; Eester v. Georgia, etc., R. Co., 90 Ga. 802, 17 S. E.
113; Richmond County v. Richmond County Reformatory
Inst., 141 Ga. 462, 81 S. E- 232. See 3 Enc Dig. 626.
Directors Estopped to Deny Existence. — Where the
General Assembly enacted a law incorporating two sepa-
rate and distinct corporations in one act, and such an
association actually organized and existed under such col-
orable authority and used the rights claimed to be con-
ferred by such charter and did business under it as a
corporate body, the directors of such organization, who
acted as such, will be estopped from denying the corporate
existence of such organization as against the corporation
itself, its receiver, and third persons who have dealt with
it as a corporation. Council v. Brown, 151 Ga. 564, 107
S. E. 867.
Where one corporation has dealt with another company
as a corporation and negotiated with its officers as offi-
cers and agents of a corporation, in a subsequent con-
troversy growing out of the subject-matter of such rec-
ognition, the first corporation is estopped from denying the
existence of the second. Imboden v. Etowah, etc., Min-
ing Co., 70 Ga. 86.
One who deals with an "association" as a legal entity
capable of transacting business, and in consequence re-
ceives from it money or other thing of value, is estopped
from denying the legality of its existence or its right to
contract. Petty v. Brunswick, etc., R. Co., 109 Ga. 666, 35
S. E. 82.
Subscription to Stock. — Where the plaintiff dealt with the
defendants not as promoters but as officers of a corpora-
tion, he bought stock from them not as individuals, but
from the corporation. Having thus dealt with the cor-
poration as such he is estopped to deny the legality of
its organization. Orr v. McEeary, 6 Ga. App. 417, 418,
65 S. E. 164. See for further treatment, 3 Cum. Dig. 165;
3 Enc. Dig. 624.
After insolvency of the corporation, whether it was a
de jure or de facto corporation, the subscriber will be es-
topped to deny his liability for unpaid stock subscription
as a corporate asset, because of an irregularity or ille-
gality in the organization of the company. Chappell v.
Eowe, 148 Ga. 717, 720, 89 S. E. 777; Georgia, etc., R. Co.
v. Mercantile Trust, etc., Co., 94 Ga. 306, 314, 21 S. E. 701.
Claim upon Assets. — Any person making a claim upon
the assets of a corporation de facto, whether as its own
creditor directly or as a creditor of such creditor or of a
stockholder, sustains the same relation to it in respect to
such claim as would be sustained under like circumstances
were it a corporation de jure. Georgia, etc., R. Co. v.
Mercantile Trust, etc., Co., 94 Ga. 306, 21 S. E. 701.
Where Name Imports Corporation. — It is not necessary
for a corporation, in bringing a suit, to aver that it is a
corporation, when its name imports a corporate body, or
when the fact of its incorporation is a matter of judicial
knowledge. A party will not be heard to deny that the
opposite party to a suit is a corporation, where he had
dealt with such party as a corporation. Edenfield v.
Bank, 7 Ga. App. 645, 67 S. E. 896.
Fraud in Obtaining Charter. — The fraud of a corpora-
tion in obtaining its charter is not a defense to its debt-
ors. Pattison v. Albany Bdg., etc., Asso., 63 Ga. 374.
See also, Southern Bank v. Williams, 25 Ga. 534; Mc-
Dougald v. Lane, 18 Ga. 444.
Estoppel of Creditor to Sue Incorporators as Copartners.
—See Rozar v. Rosenheim Shoe Co., 14 Ga. App. 13, 80
S. E. 24.
§ 2227. (§ 1863.) Lessee subject to burdens
of lessor corporations. — All corporations, for-
eign or domestic, operating the franchise of a
corporation chartered by this State, are subject
to its burdens, and can be sued when and where
and for like causes for action for which suits
could have been maintained against such other
corporation, were it in possession of the franchise
so acquired or usurped.
Cross References. — For full treatment, see 9 Cum. Dig.
785; 10 Enc. Dig. 764. As to foreign corporations, see
§§ 2203 et seq. As to liability to suit of lessee of rail-
road, see § 2799. As to method of serving process on
lessee of railroad, see § 2800. As to method of serving
notice on railroad company in proceeding by telegraph
comoany to condemn part of railroad right of way, see
§ 5237.
Editor's Note. — Before considering the scope of this and
the following section, it is deemed advisable to direct at-
tention to a palpable typographical error appearing in
the Code of 1910. The clause "for like causes for action"
was obviously intended to read "for like causes of action."
See Seaboard Air-Eine Ry. v. Eeader, 115 Ga. 702, 704,
42 S. E. 38.
This section and § 2228 are corrollaries one of the other.
This section, relates to the liability of the acquiring cor-
poration. It applies to liabilities both ex contractu and
ex delicto. Section 2228 relates to the liability of the dis-
posing corporation. It is confined in application to pub-
lic service corporations, and, seemingly, to actions ex de-
licto. With this explanation in mind the annotations to
the two sections should be more valuable.
Mergers — Reorganizations and Consolidations. — The acquir-
ing corporation by reason of a merger becomes liable for the
payment of all unpaid debts and unperformed contracts
of the acquired corporation, and is bound by the terms of
the contract entered into between the latter and another
corporation prior to the merger. Atlanta, etc., R. Co. v.
Atlantic, etc., R. Co., 138 Ga. 353, 75 S. E. 468; Hawkins
v. Central, etc., R. Co., 119 Ga. 159, 46 S. E. 82. Whether
one of the two corporations involved in a transaction,
ceases to exist entirely seems to be a criterion in deter-
mining liability in merger cases. See Tompkins v. Au-
gusta, etc., R. Co., 102 Ga. 436, 30 S. E. 992.
It would be contrary to public policy to allow a rail-
road company to escape liability by a mere reorganiza-
tion and change of its corporate name. White v. Atlanta,
etc., R. Co., 5 Ga. App. 308, 63 S. E. 234. And in Tomp-
kins v. Augusta, etc., R. Co., 102 Ga. 436, 30 S. E. 992,
it was held that, in case of consolidation, the new com-
pany would be liable for the . wrongful expulsion from its
cars of a passenger riding on a ticket 'issued by the old
company.
Where two corporations have consolidated, each corpo-
ration would continue liable to third persons for all the
obligations it had undertaken before the consolidation, and
for the purposes of enforcing its obligations upon it, those
whom it owes may treat it as still existing and sue and
recover judgment against it. Selma, etc., R. Co. v. Har-
bin, 40 Ga. 706.
Sales. — But where there has been a lawful and absolute
sale the grantee is not responsible for the existing debts
of the corporation. Hawkins v. Georgia R. Co., 119 Ga.
159, 46 S. E. 82; White v. Atlanta, etc., R. Co., 5 Ga. App.
308, 63 S. E. 234.
Same — Of Property. — A mere sale of its property by one
railroad compan)' to another does not alone make the pur-
chaser liable for damages previously caused by the vendor.
Hawkins v. Central, etc., R. Co., 119 Ga. 159, 46 S. E- 82;
[524]
§ 2228
POWERS AND LIABILITIES OF CORPORATIONS
§ 2230
De Loach v. Georgia Coast, etc., R. Co., 137 Ga. 633, 73
S. E. 1072.
There is nothing in this section, construed in the light of
the decision of this court from which it was codified, (87
Ga. 263), which renders a corporation purchasing the line
of railway of another corporation liable either upon the con-
tracts or for the torts of its predecessor in title, in the ab-
sence of an agreement to be so liable. It must appear that
the purchasing company assumes the liability of the prede-
cessor sought to be imposed upon it, or that the law charges
it with liability. Seaboard Air-Line R. Co. v. Leader, 115
Ga. 702, 41 S. E- 653.
Where one corporation conveys its property to another,
this alone does not destroy the corporate existence of the
grantor or constitute a merger of the two corporations, or
render the grantee subject to an action for damages for a
tort previously committed by the grantor. The grantor is
still subject to suit; and if liable, the question of seeking
to subject property to such liability on a judgment ren-
dered thereon is different from suing the grantee directly
for the tort. Louisville, etc., R. Co. v. Hughes, 134 Ga.
75, 67 S. E. 542.
Same — Effect of Agreements. — The fact that the grantee
agreed with the grantor to pay all of the debts or liabili-
ties of the latter, existing at the time of the transfer, did
not authorize one who claimed to have been injured by a
tort of the grantor committed before the making of the
transfer to bring suit therefor against the grantee. Lou-
isville, etc., R. Co. v. Hughes, 134 Ga. 75, 67 S. E. 542.
But of course, the grantee would be liable for injury oc-
curring after the conveyance, irrespective of contract. Id.
§ 2228. (§ 1864.) Corporation liable notwith-
standing sale or lease. — A corporation charged
with a duty to the public can not, by sale or
otherwise, dispose of its property or franchises so
as to relieve itself from liability for acts done or
omitted, without legislative sanction expressly
exempting it from liability.
Cross References. — For full treatment of effect of sale,
lease or merger of railroad corporations, see 9 Cum. Dig.
784; 10 Enc. Dig. 764.
As to failure to record lease, see § 2599. As to service on
leasing corporation, see § 2801.
Editor's Note. — For scope of this section, see editor's note
to § 2227.
Reason for Rule. — In accepting a charter from the state,
containing a grant of rights and franchises, a railroad com-
pany impliedly assumes the duty of public carrier, and can
not divest itself of its public duties nor shirk its liabilities
by allowing another corporation, without legislative au-
thority, to take possession of its track and operate cars
thereon. Gregory v. Georgia Granite R. Co., 132 Ga. 587,
64 S. E. 686.
Legislative Sanction. — It " requires not only the consent,
but a release by the legislature, to absolve railroad cor-
porations from the obligation which they owe the public.
Singleton v. Southwestern Railroad, 70 Ga. 471.
It has been held that a chartered railroad company which,
under legislative authority, leased its tracks and franchises
to another such company, is not liable for the homicide of
an employee of the latter caused by the negligence of a co-
employee. Banks v. Georgia R., etc., Co., 112 Ga. 655, 37
S. E. 992, distinguishing Macon, etc., R. Co. v. Mayes, 49
Ga. 355.
"There is great contrariety of judicial opinion in respect
to the responsibility to the public of a lessor railroad com-
pany for the act of the lessee's servants in operating the
franchise, where the lease is authorized by statute, but
without a provision for the lessor's exemption from liabil-
ity. We apprehend, however, that no case can be found
where it is held, in the absence of a statute creating the
liability, that a proprietary railroad company which has,
by legislative authority, leased its road and franchise, is
responsible for a tort to an employee of the lessee result-
ing from the negligence of a coemployee." Banks v. Geor-
gia R. Co., 112 Ga. 655, 37 S. E. 992.
Extent of Liability. — The company owning a leased rail-
road is liable for injury caused by defective track as though
such company itself were operating the cars. Gregory v.
Georgia Granite R. Co., 132 Ga. 587, 64 S. E- 686. See also,
Louisville, etc., R. Co. v. Curry, 9 Ga. App. 669, 670, 71 S.
E. 1123. For full treatment, see 9 Cum. Dig. 784; 10 Enc.
1123.
Dig. 766
Diligence of Licensee. — Where a railroad company ver-
bally consents for a quarry company to operate cars on its
track, and the quarry company transports over such road
its employees to and from their work, an employee of the
quarry company, who has no connection with the operation
of the train, while being so transported, sustains to the
railroad company the relation of passenger to the extent
that the railroad company and its licensee is bound to ex-
ercise extraordinary diligence to keep from injuring him.
Gregory v. Georgia Granite R. Co., 132 Ga. 587, 64 S. E-
686.
Liability for Torts of Lessee's Servants. — A chartered rail-
road company, - permitting a construction company to use
its franchises by running passenger trains over and upon
its railway, is responsible for torts to persons not connected
with either company, negligently committed by the serv-
ants engaged in such running, and these servants, by whom-
soever employed, are to be deemed and treated, relatively
to the public, as the servants of the railroad company.
Chattanooga, etc., R. Co. v. Whitehead, 89 Ga. 190, 15
S. E- 44.
Conversion. — If a lessee of the property and franchises
of a railroad company, in the operation of its cars and
the exercise of its franchises as a common carrier, com-
mits a conversion of property, the lessor may be held lia-
ble therefor, in the absence of legislative provision to the
contrary. Georgia R., etc., Co. v. Haas, 127 Ga. 187, 56
S. E. 313.
Proper pleading where it is sought to hold a lessor rail-
road company liable for the acts of its lessee, discussed.
Georgia R., etc., Co. v. Haas, 127 Ga. 187, 56 S. E- 313.
See also, White v. Atlanta, etc., R. Co., 5 Ga. App.
63 S. E. 234.
Applied in Central R., etc., Co. v. Phinazee, 93 Ga.
21 S. E. 66; Central R., etc., Co. v. Gamble, 77 Ga.
3 S. E. 161; Heins v. Savannah, etc., R. Co., 114 Ga.
40 S. E- 710. See also, 9 Cum. Dig.
Co. v. Haas, 127 Ga. 187, 56 S. E.
308,
584,
678,
313.
Georgia R., etc.,
§ 2229. (§ 1865.) Railroads using the same ter-
minal tracks. — Two or more chartered railway
companies whose lines terminate in the same city,
may, by contract, within the corporate limits use
the same track in common, with or without com-
mon ownership, and when they do so the com-
pany owning the track is not responsible to its
employees for injuries sustained solely by reason
of the negligent use of the track by the employees
of the other company.
See § 2228 and notes thereto.
Protection of Passengers. — A depot and track used in com-
mon by two chartered railroad companies (in the city where
their lines connect), though belonging to one of them exclu-
sively, may be considered as belonging to each relatively to
its own operations and business. Each must protect its own
passengers from the other's negligence, so long as passen-
gers are in their proper places but not when they are
out of place. Central R., etc., Co. v. Perry, 58 Ga. 461.
Track Used in Reaching Terminal Paint. — A railway
company permitting by contract or otherwise another rail-
way company to use a section of its main line, not at a
terminal point but to reach such point, is liable to one
of its own employees for a personal injury resulting to
him from the negligence of the latter company in running
its train over and upon the section used in common by
both companies, it not appearing that the negligent com-
pany had any legislative authority to adopt and use as
its own any part of the main line of the other company.
Central R., etc., Co. v. Passmore, 90 Ga. 203, 15 S. E-
760.
Liability for Low Bridge. — Where two railway com-
panies, each under its own franchise, use the track of one
of them in common, at a terminal point, the. one owning
the track is responsible for the consequences of its neg-
ligence in failing to render harmless to the employees of
the other company a low bridge spanning the track, if
the duty of taking proper precautions for that purpose
was upon it and it alone. Ellison v. Georgia R. Co., 87
Ga. 691, 13 S. E. 809.
§2230. (§ 1866.) Bonds of corporations to be
certified and recorded. — All public and private
corporations in this State, who shall issue or in-
dorse any bonds for circulation, shall furnish to
the secretary of State a certified statement show-
ing the letter, date of issue, number of bonds,
amount of issue, rate of interest, when and where
payable, and the date of the law, if any, authoriz-
ing such issue. The secretary of State shall re-
cord the same in a book to be kept by him for
that purpose. When such bonds have been paid
[525 ]
§ 2231
THEIR DISSOLUTION
§ 2239
and canceled, the corporation issuing same may
have an entry to that effect made upon the re-
cord by the secretary of State, upon exhibiting to
that official the bonds properly canceled upon the
face thereof, and paying a fee of one dollar. Acts
1876, p. 12; 1900, p. 47.
Cross References.— As to notice of election on issue of
bonds by county, municipality, or division, see § 440. As
to compromise of bonded debt of municipality, see § 905.
As to proceedings before and by the railroad commission
relative to the issuance of stocks and bonds by corpora-
tions under its authority, see § 2665.
§ 2231. (§ 1867.) Corporations fined for default.
— Pulblic or private corporations neglecting or re-
fusing to comply with the provisions of the pre-
ceding section shall be fined in a sum not ex-
ceeding five hundred dollars for each offense, one
half of said fine to go to the party giving informa-
tion of such violation, and the other half to go to
the public-school fund of the county.
Amount of Recovery. — In a proceeding under this sec-
tion, the penalty would be for the omission of duty, and
in no event could more than five hundred dollars be re-
covered; but that amount or any less sum might be re-
covered, the amount being fixed by the jury under all
the circumstances of the case; and as bearing on the
measure of recovery, it may be shown that the defend-
ant acted in good faith in issuing the bonds without hav-
ing made the return required; that it did so in ignorance;
and that as soon as it ascertained what the law was, it
made a return; and these facts may be considered in as-
sessing the amount of the penalty. McDaniel v. Gate
City Gas-Light Co., 79 Ga. 58, 3 S. E- 693.
A civil action could be brought in the name of the
governor against a corporation failing or refusing to com-
ply with the provisions of this section. McDaniel v. Gate
City Gas-Light Co., 79 Ga. 58, 3 S. E. 693. See South-
ern R. v. State, 125 Ga. 287, 54 S. E. 160.
§ 2232. (§ 1868.) Circulation of unrecorded
bonds forbidden. — No bonds shall be placed in
circulation until the provisions with regard to such
bonds shall have been complied with, and any
person placing such bonds in circulation without
such compliance shall be subject to a fine of five
hundred dollars for every bond so put in circula-
tion.
No Civil Action under This Section. — This section acts
upon the individual and subjects him to indictment and
punishment, but does not give a right of suit and recov-
ery for the benefit of an informer or for the school fund.
A count of a declaration based on this section was de-
murrable. McDaniel v. Gate City Gas -Light Co., 79 Ga.
58, 3 S. E. 693.
§ 2233. (§ 1869.) Compensation of secretary of
State.— The secretary of State shall receive as
compensation, for the record and for giving tran-
script of the same, twenty cents per hundred
words; the fee for recording to be paid by the cor-
poration issuing the bond, and the fee for tran-
scripts to be paid by the party applying for the
same.
As to disposition of fees collected under this section,
see § 209.
§ 2234. (§ 1870.) Electricity, rent, or sale of
power. — Any person or corporation creating elec-
tricity in this State may make contracts and lease
power, or any part thereof, to any person or cor-
poration. Acts 1894, p. 114.
As to right of electric railroad company to produce and
sell electric current for light and power, see § 2611. As
to control of electric railroad, light, and power com-
panies by railroad commission, see §§ 2662 and 2663.
§ 2235. (§ 1871.) To redeem certificates for
wages. — Any corporation or person doing busi-
ness of any kind in this State, who shall issue
checks or written evidences of indebtedness for
the wages of laborers, shall redeem at full value, in
cash, such written evidences of indebtedness, on de-
mand and presentation to the proper person on
the regular monthly pay-day, and if there be no
regular monthly pay-day, then upon demand and
presentation on any regular business day after
thirty days from the issuance thereof; and for
every failure to redeem such evidences of in-
debtedness, said corporation or person shall be
liable to the owner thereof in the sum of ten dol-
lars, to be recovered by suit, unless said corpora-
tion or person shall, upon the trial, prove in-
solvency or actual inability to redeem at the time
of demand and presentation. Acts 1888, p. 48.
§ 2236. (§ 1872.) Use or borrowing for personal
use prohibited. — No officer or agent of any 'bank
or other corporation shall use or borrow for him-
self, directly or indirectly, any money or other
property belonging to any corporation of which
he is an officer or agent, without the permission
of a majority of the board of directors, or of a
committee of the board authorized to act. Acts
1887, p. 94.
As to loans to officers of a bank, see § 2275.
§ 2237. Corporations prohibited from contribut-
ing to campaign funds. — It shall be illegal for any
corporation incorporated under the laws of this
State, or doing business therein, or any officer or
agent thereof, from corporate funds to make or
authorize any contributions, directly or indirectly,
to campaign funds or for political purposes, in
any election or primary election held in this
State, or for the purposes of influencing the vote,
judgment, or action of any officer of this State,
legislative, executive, or judicial. Acts 1908, p.
65.
As to the criminal liability of a corporation violating this
section, see P. C, § 672.
ARTICLE 6.
Their Dissolution.
§ 2238. (§ 1879.) Public corporations. — Public
corporations, being established for public pur-
poses, are always suibject to dissolution by the
act of the General Assembly.
As to what is a public corporation, see § 2190.
No Jurisdiction in Equity. — A court of equity has no
jurisdiction in this state to dissolve a corporation. Dan-
iel v. Jones, 146 Ga. 583, 91 S. E- 665.
Modifying, Enlarging and Restraining. — A public corpo-
ration which exists only for public purposes, may be dis-
solved, modified, enlarged or restrained, at the will of the
legislature. Young v. Harrison, 6 Ga. 130. See also,
Churchill v. Walker, 68 Ga. 681.
§ 2239. (§ 1880.) Private charters. — In all cases
of private charters hereafter granted, the State
reserves the right to withdraw the franchise, un-
less such right is expressly negatived in the char-
ter.
See § 6465.
Editor's Note— Prior to the adoption of the Code (1863)
the State had no right to withdraw the franchises of a cor-
poration unless the act incorporating specifically reserved
this power, but by the adoption of this section it would
seem that it is a part of every corporate charter. For
cases pertaining to the right of the State to withdraw the
franchise of a corporation prior to the Code, reference
should be made to 4 Cum. Dig. 143; 3 Enc. Dig. 589.
Applies to All Private Corporations. — This section intro-
duced a new element into the law of private corporations
[ 526 ]
§ 2240
THEIR DISSOLUTION
§ 2243
in this State, and all charters granted by the State to
private corporations since its adoption, are subject to its
provisions. West End, etc., R. Co. v. Atlanta Street R.
Co., 49 Ga. 151, 158.
Includes Power to Modify. — The power to withdraw an
entire franchise necessarily includes the power to modify
or restrict the exercise of it. West End, etc., R. Co. v.
Atlanta Street R. Co., 49 Ga. 151.
Vested Rights. — The State under this section has no con-
trol over vested rights and interests, acquired by the
company, and not constituting a part of the act of in-
corporation. Coast I/ine R. Co. v. Savannah, 30 Fed. 646.
Where the corporation has made contracts, valid under
the laws of the state at the time they were made, the
state can not unmake them, or impose other or different
terms on the corporation, to its injury, and for the benefit
of the other contracting party. Coast I/ine R. Co. v.
Savannah, 30 Fed. 646.
Where a railroad . charter provides that it may locate
and construct its road where it may think proper, there
may be an amendment of such charter after location but
prior to construction. This results from the reserved
power of the state, declared in this section. Macon, etc.,
R. Co. v. Stamps, 85 Ga. 1, 11 S. E. 442.
Repeal by Implication. — Where in an act of incorpora-
tion the legislature have reserved the right of appeal (which
would seem to be in every instance since the adoption of
this section), repeal may be by implication of a precedent
affirmative statute so far as it is contrary thereto. West
End, etc., R. Co. v. Atlanta Street R. Co., 49 Ga. 151, 159;
Union Branch R. Co. v. East Term., etc., R. Co., 14 Ga.
327.
§ 2240. (§ 1881.) Heretofore granted.— Private
corporations heretofore created without the res-
ervation of the right of dissolution, and where
individual rights have become vested, are not
subject to dissolution at the will of the State.
See § 2239 and notes thereto.
The State can not under the provisions of this section
control vested rights and interest, acquired by the com-
pany, and not constituting a part of the act or incorpora-
tion. Coast Iyine R. Co. v. Savannah, 30 Fed. 646.
§ 2241. (§ 1882.) How dissolved. — Every cor-
poration is dissolved, —
1. By expiration of its charter.
2. By forfeiture of its charter.
3. By a surrender of its franchises.
4. By the death of all its members without pro-
visions for a succession.
Expiration Ends Power. — As this section provides that a
corporation is dissolved by expiration of its charter, the
receiver of a corporation so dissolved has no authority in law
to bring a suit against the former directors of the corpo-
ration for negligence in the discharge of their duties. Coun-
cil v. Brown, 151 Ga. 564, 107 S. E. 867.
Special Acts Preventing Expiration. — Under this section
the legislature can not hinder the charter of a business cor-
poration from expiring and the corporation from being dis-
solved, by enacting a special law declaring that the char-
ter be continued in force for the purpose of terminating suits
and litigation pending against the corporation at the time
of the expiration of its charter, and forbidding that the cor-
porate existence should be construed as extended for any
other purpose. Eogan v.. Western, etc., R. Co., 87 Ga.
533, 13 S. E. 516, cited in Council v. Brown, 151 Ga. 564, 567,
107 S. E. 867.
Acts of Stockholders as Preventing Expiration. — The acts
of two persons who owned all of the stock of the defendant
corporation, in continuing to defend the suit after the ex-
piration of its charter, did not prevent the abatement of the
suit because of the expiration of the defendant's charter,
and authorize the plaintiffs to proceed to judgment against
the defendant as a corporation de facto or a corporation by
estoppel. Venable Bros. v. Southern Granite Co., 135 Ga.
508, 69 S. E. 822, cited in Council v. Brown, 151 Ga. 564,
567, 107 S. E. 867.
Same — Resolution to Cease Business. — A corporation does
not cease to exist by the adoption of resolutions by the
stockholders that it will do no more business. A dissolu-
tion requires more than a mere declaration. Young v.
Moses, 53 Ga. 628.
Bankruptcy. — A corporation of this State can not be dis-
solved by an act of Congress, or by the administration
thereof, although in the federal court. Georgia created, and
she alone can destroy. Therefore bankruptcy does not dis-
solve a corporation. Holland v. Heyman, 60 Ga. 174, 181;
National Surety Co. v. Medlock, 2 Ga. App. 665, 58 S. E.
1131.
The failure of a corporation to elect officers does not dis-
solve the corporation. Quitman Oil Co. v. Peacock, 14 Ga.
App. 550, 81 S. E. 908.
Power of Court to Dissolve. — A court has no power with-
out express statutory authority to dissolve a corporation.
Gibson v. Thornton, 107 Ga. 545, 563, 33 S. E. 895.
Voluntary Surrender. — See § 2243 and notes thereto.
§ 2242. (§ 1883.) How forfeited. — A corpora-
tion may forfeit its charter —
1. By a willful violation of any of the essential
conditions on which it is granted.
2. By a misuser or non-user of its franchises.
This dissolution dates from the judgment of a
court of competent jurisdiction, declaring the for-
feiture.
As to forfeiture of charter powers by railroad company,
see § 2584.
Necessity of Court Judgment. — A forfeiture for non-user
or mis-user must be by the judgment of a court of law,
the corporation being first called upon to answer. Young
v. Harrison, 6 Ga. 130. See also, Georgia, etc., R. Co. v.
Tiff on, 109 Ga. 762, 35 S. E. 104; Atlanta v. Gate City Gas
Eight Co., 71 Ga. 127; Greer v. Haugabook, 47 Ga. 282.
A corporation by merely ceasing to exercise its franchise
and selling all of its property does not cease to exist. Ta-
tum v. Leigh, 136 Ga. 791, 72 S. E. 236. See Abrams v.
Cadwalader, 137 Ga. 143, 72 S. E. 903; Young v. Moses, 53
Ga. 628.
What Constitutes Mis-User. — A corporation has such pow-
ers as are necessary for the doing of all such acts as are
essential to the legitimate execution of this purpose but if
they transcend these bounds they are guilty of mis-user of
their franchises. Gunn v. Central R. Co., 74 Ga. 509, 512.
Collateral Attack. — Advantage can not be taken of non-
user or mis-user of an act of incorporation, in any collat-
eral action. Union Branch R. Co. v. East Tenn., etc., R.
Co., 14 Ga. 327; Young v. Harrison, 6 Ga. 130; Atlanta v.
Gate City Gas Eight Co., 71 Ga. 106.
Thus it is no concern of a debtor of a corporation or of
a person who is wrongfully withholding property belonging
to it, that it has not complied with the conditions prece-
dent in its charter, or has made its charter subject to for-
feiture by non-user or mis-user of corporate powers. Mc-
Candless v. Inland Acid Co., 115 Ga. 968, 42 S. E. 449, and
see Brown v. Atlanta R., etc., Co., 113 Ga. 462, 39 S. E. 71.
Applied to Military Company. — Where a corps was organ-
ized and incorporated for military duty, and for nothing
else; and when it ceased to perform military duty under
the laws of this State, the purposes of its incorporation
were at an end, and its charter was subject to forfeiture
for non-user. Cummings v. Hollis, 108 Ga. 402, 406, 33 S.
E. 919; Clarke v. Armstrong, 151 Ga. 105, 106 S. E. 289.
Quoted in Central Railroad v. Collins, 40 Ga. 583, 643.
§ 2243. (§ 1884.) Surrender. — A corporation
may be dissolved by a voluntary surrender of its
franchises to the State. In such cases such sur-
render does not relieve its officers or members
from any liability for the debts of the corpora-
tion.
Cross References. — See generally, 4 Cum. Dig. 201 ; 3 Enc.
Dig. 681. As to rights of corporators in franchise, see §
2218. As to voluntary surrender of charter powers by in-
surance companies, other than fire-insurance companies, see
§ 2197. As to what constitutes a special franchise, see §
1019. As to necessity of voluntary surrender of charter by
corporations created without a reservation by the state of
the power of dissolution, see § 2240. As to surrender of
bank charters, see § 2366 (124).
Editor's Note.— Prior to the Act of 1910 (Acts 1910, p.
106) as codified in § 2823 (2) of this Code there was much
diversity of opinion in the decisions as to the power of the
Superior Court or any other court to accept the surrender
of the charter of a corporation. By § 2823 (2) it is pro-
vided that, upon the corporation doing certain things, that
the Superior Court which granted the charter to such cor-
poration may dissolve it by order and decree of such court
upon a surrender of its charter and franchises. And §§
2823 (3) and 2823 (4) provide for the proceeding to dissolve
and objections to dissolution. For discussion of law prior
to the Act of 1910, see White v. Davis, 134 Ga. 274, 67 S.
E. 716.
Surrender to Avoid Dissolution.— Where a corporation,
being insolvent, commits acts of bankruptcy by preferring
[527]
2244
THEIR DISSOLUTION
§ 2245(1)
certain creditors, the jurisdiction of a court of bankruptcy
to adjudicate it a bankrupt and administer its estate under
the provisions of the bankruptcy act attaches, and the cor-
poration can not avoid such jurisdiction and validate its
preferences by instituting proceedings for dissolution^ in a
state court before bankruptcy proceedings against it are
instituted. In re Adams & Hoyt Co., 164 Fed. 489.
Corporations Created by Legislature. — A corporation made
by the General Assembly of this state, could not prior to
the code terminate its existence by voluntary surrender of
its charter; the surrender must be accepted by the Gen-
eral Assembly. Mechanics' Bank v. Heard, 37 Ga. 401. See
White v. Davis, 134 Ga. 278, 67 S. E- 716.
§ 2244. (§ 1885.) Death of members. — The
death of all the members of a corporation, or of
so many of them as to render it impossible under
the charter to provide a succession, is a dissolu-
tion thereof.
As to power of superior court judges to designate trus-
tees to fill vacancies, see § 3745.
§ 2245. (§ 1886.) Disposition of assets. — Upon
the dissolution of a corporation, for any cause, all
of the property and assets of every description be-
longing to the corporation shall constitute a fund
— first, for the payment of its debts, and then for
equal distribution among its members. To this
end the superior court of the county where such
corporation was located shall have power to ap-
point a receiver, under proper restrictions, prop-
erly to administer such assets under its direction.
Acts 1855-6, p. 226.
Cross References. — For full treatment of disposition of
assets of dissolved corporations, see 4 Cum. Dig. 205; 3
Enc. Dig. 687. As to franchise as an asset, see § 2926.
As to receiver for insolvent trader, see § 3249. As to lia-
bility of stockholder as an asset of insolvent corporation,
see § 2249.
"Equal Distribution among Its Members." — In the ex-
pression "equal distribution among its members" the word
equal implies, not absolute equality of amount, but equal-
ity of right entitling each member to an amount payable
from the proceeds of the assets of the corporation pro-
portionate to his interest in the corporation's property or
to the amount of the share of stock held by each mem-
ber. Clarke v. Armstrong, 151 Ga. 105, 112, 106 S. E. 289.
"Debts" Includes Claim for Torts. — In this section the
word debts is used, and there is a strong probability that
the word was intended to embrace liabilities of all classes,
torts included. Those having claims for torts, not yet re-
duced to judgment, are not strictly creditors; their demands
are not debts in the ordinary and proper meaning of the
term, yet they are clearly within the equity of the statute.
Coggin v. Central R. Co., 62 Ga. 685, 696.
Unpaid Stock Subscriptions. — Where a decree of the chan-
cellor clothed with jurisdiction to administer the estate of
an insolvent corporation directs that its debtors be sued
by the receivers appointed by the court of equity, the de-
cree confers upon the receivers full authority to maintain
against a subscriber to the capital stock of the corporation
an action for the recovery of an unpaid balance of the
subscription. Graves v. Denny, 15 Ga. App. 718, 84 S. E-
187. See 3 Enc. Dig. 687.
Same — Discretion. — Whether a subscription to the capital
stock of a defunct corporation shall be enforced for the
purpose of equalizing by contribution stockholders who have
paid their subscriptions in full is a matter addressed solely
to the discretion of the court charged with the duty of
administering the estate of the corporation. Graves v.
Denny, 15 Ga. App. 718, 84 S. E. 187.
Same — Estoppel of Subscriber. — Subscriptions of stock-
holders may be called in to satisfy creditors, and where such
corporation has held itself out to the world and contracted
debts on the faith of its proper organization, and a stock-
holder has stood by and interposed no objection, he is bound,
and on a suit by a receiver for the benefit of creditors, he
will not be heard to set up any defense as to fraud prac-
ticed on him in the organization or acts of the corporation.
Beck v. Henderson, 76 Ga. 360.
Not Applicable to Public Corporations. — This section does
not apply to the disposition of the assets of a corporation
created for the accomplishment of certain public purposes
(such as a militia company). Clarke v. Armstrong, 151
Ga. 105, 106 S. E. 289. See also, Macon v. Atlanta Fire
Co., 70 Ga. 604.
Jurisdiction in Equity. — On the dissolution of a corpora-
tion with outstanding assets and debts, a court of equity
will lay hold of the assets and administer them for the
benefit of all interested. Hargroves v. Chambers, 30 Ga.
580; Hightower v. Thornton, 8 Ga. 486. And a judicial as-
certainment of the amount due is not an essential pre-
liminary to a suit by the receiver of a defunct corpo-
ration against a debtor of the corporation, when equity in
its discretion determines that assets should be marshalled.
Graves v. Denny, 15 Ga. App. 718, 84 S. E- 187.
And creditors of an insolvent corporation, whose charter
has been forfeited, and who have exhausted their legal rem-
edies against it, may sue in chancery for the assets of that
corporation, and have them applied in payment of their
debts. Hightower v. Mustian, 8 Ga. 506.
But it was held in Bartlett v. Taylor, 148 Ga. 854, 855,
98 S. E- 491, that a corporation could not maintain an eq-
uitable suit to marshall its own assets, see § 2249.
Also, as a court of equity has not the power to dissolve
a corporation it will not do what is tantamount to the same
thing. Thus, it has not the power to appoint a receiver at
the instance of minority stockholders to administer the
property according to the method prescribed by this sec-
tion. Gibson v. Thornton, 107 Ga. 545, 33 S. E. 895. See
also, Croft v. Lumpkin Chestates Mining Co., 61 Ga. 465,
469.
Power of Court over Receiver's Contracts. — Where a re-
ceiver was appointed under this section for the purpose of
liquidating the assets of a corporation whose charter ex-
pired by limitation of time it was held that the court has
power to vacate or modify any agreement or contract which
the receiver had made, and to direct the making of another
agreement, the opposite party to the contract consenting.
Berckmans v. Tarnok, 151 Ga. 117, 106 S. E. 2.
Collection of Assets by Common Law Action. — The fact
that a court of equity, in the exercise of its powers and dis-
cretion, is administering the estate of a corporation in the
hands of a receiver, and that the distribution of the fund
when collected can only be effected in a court of equitable
jurisdiction, affords no bar to the collection of the assets
by the processes of the common law. Graves v. Denny,
15 Ga. App. 718, 84 S. E- 187.
Appointment of Receiver Pending Foreclosure Proceeding.
— Where pending an action in behalf of a corporation by its
treasurer, to foreclose a mortgage, it expired by the limita-
tion of its charter, and certain of its stockholders applied
for a receiver, and the treasurer was appointed as such,
he was entitled to be made a party plaintiff and to prose-
cute the case as receiver, for the interest of all persons con-
cerned either as creditors or stockholders. Houston v.
Redwine, 85 Ga. 130, 11 S. E. 662.
Where Stockholders Agree as to Disposition. — In case of
dissolution where all the stockholders are in unison as to
the disposition of such assets, there is no necessity for the
appointment of a receiver. They succeed to the legal title
thereto, and an action by all of -them upon choses in ac-
tion which belonged to the corporation at the time of its
dissolution is maintainable at law in their own names.
Stone v. Edwards, 32 Ga. App. 479, 124 S. E. 54.
Liability of Directors. — The directors and managers of a
corporation, who control and have charge of its effects, are
trustees for the stockholders, and both they and others who,
with the knowledge of their misappropriation, aid them in
diverting its property, would be liable to the injured par-
ties. Atlanta Real Estate Co. v. Atlanta Nat. Bank, 7S
Ga. 40. See § 2222 and note thereto.
Liability of Organizers. — The liability of persons who or-
ganize a corporation and transact business in its name,
before the minimum capital stock has been subscribed for
is not an asset of the corporation. Wells v. DeBose, 140
Ga. 187, 78 S. E- 715. See note to § 2220.
Voluntary Surrender of Franchise. — This section does not
provide for a dissolution of a corporation by the superior
court, by means of a voluntary surrender of its franchises
to the court and the appointment of a receiver, on its own
petition ex parte. White v. Davis, 134 Ga. 274, 67 S. E.
716. See also, Gibson v. Thornton, 107 Ga. 545, 33 S. E.
895; Croft v. Lumpkin, etc., Mining Co., 61 Ga. 465. And
see editor's note to § 2243.
Applied, the principles of this section were applied in
Perkins v. Talmadge Co., 147 Ga. 527, 94 S. E. 1003, and in
Sommer v. New York Mill End Pants Co., 33 Ga. App.
374, 126 S. E. 266.
§ 2245(1). Causes of action and pending suits.
— The dissolution of a corporation either as a re-
sult of the expiration of its charter, or for any
other cause, shall not bring about its total extinc-
tion nor operate to extinguish any demand or
cause of action against it in favor of any person
[528]
§ 2245(2)
LIABILITY OF STOCKHOLDERS
§ 224S
whomsoever, whether arising from contract or
tort, nor shall such dissolution work the abate-
ment of any suit pending against it at the time
of such dissolution, but all such pending suits
may be prosecuted and enforced to a conclusion
as though such corporation were still undis-
solved. Acts 1918, p. 136.
Order of Dissolution as Evidence. — Under this act, it was
not error to decline to allow movants to introduce in evi-
dence the original order of the superior court dissolving
the Dixie Paper and Box Company as a corporation, more
than four months before the filing of the plaintiff's suit.
Dixie Mfg. Co. v. Ricks, 153 Ga. 364, 112 S. E. 370.
§ 2245(2). Suits and service of process. — Suits
for the enforcement of any demand or cause of
action due by such corporation may to a like ex-
tent be instituted and enforced against it in any
court having jurisdiction thereof at the time of
its dissolution, and service thereon may be per-
fected either by seizure of the property of such
corporation, by any form of legal process, or by
serving with process issued upon said suits any
person who, as an agent or officer of such cor-
poration, was subject to be served as its officer
or agent at the time of such dissolution. Acts
1918, p. 136.
§ 2246. (§ 1887.) Collateral liability.— The dis-
solution of a corporation, from any cause, shall
not in any manner affect any collateral or ulti-
mate or other liability legally incurred by any of
its officers or members. Acts 1858, p. 21.
Common-Law Rule. — For a discussion of the common-
law rule as to extinguishment of debts due to or from a
corporation upon dissolution, see Thornton v. Lane, 11 Ga.
459; Robinson v. Lane, 19 Ga. 337; Hargroves v. Chambers,
30 Ga. 580.
The individual liability of a stockholder for the debts of
a corporation under the terms of the charter is not extin-
guished by the expiration of the charter of the corporation.
Wheatley v. GloveT, 125 Ga. 710, 54 S. E. 626.
Directors. — An action brought, under the rule of a bank
making the directors individually liable, against certain
directors who were guilty of an over-issue, did not abate
by the expiration of the charter, by its own limitation, dur-
ing the pendency and before the termination of the suit.
Moultrie v. Smiley, 16 Ga. 289; Hargroves v. Chambers, 30
Ga. 580. But see Moultrie v. Hoge, 21 Ga. 513; Robison v.
Beall, 26 Ga. 17.
ARTICLE 6A.
Liability of Officers.
§ 2246(1). Declaration of improper dividends. —
Should the president, directors, or other agent
of any corporation, declare a dividend, or divi-
dends, in violation of the provisions of this Act,
they shall, in addition to the punishment pre-
scribed in section two of this Act, be liable to be
sued for double the amount of damages that any
person, or persons may sustain in consequence of
the declaring of such dividend or dividends. Acts
1877, p. 35.
ARTICLE 7.
Liability of Stockholders.
§ 2247. (§ 1888.) Liability of stockholder after
transfer of stock. — Whenever a stockholder in
any corporation is individually liable under the
charter, and shall transfer his stock, he shall be
exempt from such liability by such transfer, un-
less such corporation shall fail within six months
from the date of such transfer. Acts 1894, p. 76.
See § 3575 center.
For full treatment of liability of stockholders generally,
see 10 Cum. Dig. 559; 11 Enc. Dig. 886. As to how stock
transferred, see § 2219 and notes thereto.
Editor's Note.— In 1838 the General Assembly passed the
first act providing a method by which stockholders in banks
and other corporations, who are individually responsible
under the charter, might relieve themselves from such lia-
bility after the transfer of their stock. (Cobb's Dig. 112.)
The codifiers changed the verbiage of this act, but made
no alteration affecting the substance of the law. As it
first appeared in the code it was in the following language:
"When a stockholder in any bank or other corporation is
individually liable under the charter, and shall transfer his
stock, he shall be exempt from such liability, unless he
receives a written notice from a creditor within six months
after such transfer of bis intention to hold him liable; pro-
vided, he shall give notice once a month for six months
of such transfer, immediately thereafter, in two newspa-
pers in or nearest the place where such institution shall
keep its principal office." (Code 1863, § 1445; Code 1882,
§ 1496.) In 1892 (Acts 1892, p. 55) an act was passed amend-
ing the section of the code above quoted, by striking there-
from the proviso, and inserting in lieu thereof the follow-
ing: "Provided, he shall within ten days thereafter cause
notice of such transfer to be published once a week for
four weeks in the newspaper which publishes the sheriff's
sales of the county in which such corporation shall keep its
principal office." The law was further changed by the
Acts of 1894 (Acts 1894, p. 76) by enacting the section as
it appears above.
It is apparent from the history of this section that it
does not impose a liability upon the stockholder, but sim-
ply provides a method by which a stockholder can relieve
himself from pre-existing liability. See Wheatley v. Glo-
ver, 125 Ga. 710, 54 S. E. 626; Crawford v. Swicord, 147
Ga. 548, 554, 94 S. E. 1025.
For cases involving notice under the former reading of
the statute, see Brunswick Terminal Co. v. Nat. Bank,
112 Fed. 812; Brobston v. Downing, 95 Ga. 505, 22 S. E.
277; Chatham Bank v. Brobston, 99 Ga. 801, 27 S. E. 790.
Scope. — This section and the three sections next follow-
ing deal with the individual charter liability of a stock-
holder in any bank or other corporation. Swicord v. Craw-
ford, 148 Ga. 719, 98 S. E. 343.
Unpaid Stock Subscriptions. — Where it did not appear
that the failure of a corporation took place within six
months after the date of the transfer of stock by defend-
ants, the court did not err in granting nonsuit, in an ac-
tion against defendants for unpaid stock subscriptions for
which they were individually liable under the charter of
the corporation. Citizens Bank v. Kent Co., 142 Ga. 115,
82 S. E. 513.
§ 2248. (§ 1889.) Liability when corporation
fails. — The stockholder in whose name the capi-
tal stock stands upon the books of such corpora-
tion at the date of its failure shall be primarily
liable to respond upon such individual liability;
but upon proof made that any shareholders at
the date of the failure are insolvent, recourse may
be had against the person from whom such in-
solvent shareholders received his stock, if within
a period of six months prior to the date of the
failure of such corporation. Acts 3 894, p. 76; 1892.
p. 55.
See note to § 2247. See generally, 10 Cum. Dig. 559; 11
Enc. Dig. 886.
In General. — This section merely prescribes the statutory
rule for locating the burden of liability among successive
owners of stock. Harris v. Taylor, 148 Ga. 663, 98 S.
E. 86.
As to locating the burden amongst the successive own-
ers themselves, apparently the general rule of right would
be, that the last would be first, and the first last; that is,
the loss should fall ultimately upon the successive own-
ers in the inverse order of their ownership in point of
time. Of course special facts, such as transfer for secur
ity only, etc., might dictate a different order, according to
actual equities in the given instance. Chatham Bank v.
Brobston & Co., 99 Ga. 801, 27 S. E. 790.
Only One Recovery. — Where creditors are entitled to re-
covery severally, they can have but one satisfaction, and
this being had, it will operate as a satisfaction as to all,
save in respect to costs. Chatham Bank v. Brobston Co.,
[529 ]
§ 2249
SUITS AGAINST CORPORATIONS OR STOCKHOLDERS
§ 2251
99 Ga. 801, 27 S. E. 790. This case involved failure to give
notice under § 2247 as if formerly read. See editor's note
to that section.
Stock in Name of Party Having No Interest— Suit against
Real Owner. — In action to enforce the individual liability
of stockholders a receiver may, under this section, sue the
stockholder in whose name the capital stock stands upon
the books of the corporation at the time 6l its failure; or
he may sue the real owner of the shares of the capital stock
in such failed corporation, although such shares stand on
the books of the bank in the name of another who in fact
has no interest therein. Harris v. Taylor, 148 Ga. 663, 98
S. E. 86.
Effect of Year's Support to Widow.— Where bank stock
is set aside to decedent's widow as a year's support "after
all just debts are paid," the receivers of the bank upon
insolvency can obtain a legal judgment of the balance due
of the purchase money for the stock. Hartley v. Smith,
26 Ga. App. 212, 105 S. E. 725. This case contained a
strong dissent by Euke, J., in which he contends that this
section must be "construed in the light of § 4041 (year's
support statute) and the decided cases thereunder.— Ed.
Note.
§ 2249. (§ 1890.) Liability of stockholder an as-
set.— Such individual liability shall be an asset of
such corporation, to be enforced by the assignee,
receiver, or other officer having the legal right to
collect, marshal, and distribute the assets of such
failed corporation.
As to disposition of assets, see § 2245.
Section Remedial. — The act from which this section was
codified is purely remedial, and by it the statutory liabil-
ity of the stockholder is neither extended nor restricted,
increased nor diminished. Moore v. Ripley, 106 Ga. 556, 32
S. E. 647; Harris v. Taylor, 148 Ga. 663, 98 S. E- 86; Wheat-
ley v. Glover, 125 Ga. 710, 54 S. E. 626.
Section Retroactive. — Where an act incorporating a bank
provides that each stockholder shall be individually liable
for the ultimate payment of the debts of said corporation
to an amount equal to the amount of stock held by him,
such liability, since the passage of the act from which this
section was codified, may be enforced by the receiver of
an insolvent corporation, notwithstanding the act was
passed subsequently to the act of incorporation which fixed
the liability. Moore v. Ripley, 106 Ga. 556, 32 S. E. 647.
Same — Constitutionality.— This section is not unconstitu-
tional because, as applied to the Exchange Bank of Ma-
con, chartered before the passage of the act from which
this section was codified, it is retroactive and impairs the
obligation of contracts. Harris v. Taylor, 148 Ga. 663, 98
S. E. 86; Lamar v. Taylor, 141 Ga. 227, 80 S. E. 1085.
Conditions Precedent to Suit. — In a suit by the receiver
to enforce the individual liability of stockholders no de-
mand by depositors as a condition precedent to suit is nec-
essary; the liability of the stockholder need not be actually
fixed and determined; the assets, legal and equitable, of
the corporation, need not have been first completely ex-
hausted; and the action to enforce the statutory liability
of the stockholders may be brought at any time within
twenty years after the right of action accrues. Harris v.
Taylor, 148 Ga. 663, 98 S. E. 86.
Not Applicable to Liability of Organizers. — This section
making the individual liability of a stockholder under the
charter of the corporation an asset of such corporation,
applies to those who have subscribed for stock, and not to
the liability prescribed by § 2220, which is a liability to
creditors imposed upon organizers of a company who trans-
act business in its name, whether they be actual stock-
holders or not. This distinction was recognized in Commer-
cial Bank v. Worthen, 119 Ga. 990, 994, 47 S. E. 536; Rig-
bers v. Hathcock, 138 Ga.' 120, 122, 74 S. E. 834; John V.
Farwell Co. v. Jackson Stores, 137 Ga. 174, 73 S. E. 13.
See § 2220 and note thereto.
Same — Apparent Conflict. — A suit for the benefit of cred-
itors, against the stockholders of an insolvent corporation
alleging liability under the provisions of § 2220 is prop-
erly brought by the receiver of such corporation under the
direction of the court. Walters v. Porter, 3 Ga. App 73
59 S. E. 452.
Same — Editor's Note. — The case cited to the paragraph
immediately preceding seems to be out of line with the
weight of authority. As was said in Rigbers v. Hathcock,
138 Ga. 120, 74 S. E- 834, the liability imposed by § 2220
is to the creditors directly, and is not an asset of the cor-
poration which can be collected and administered by a re-
ceiver of the corporation. The ruling in the Walters Case
was based upon the decision in the case of Moore v. Rip-
ley, 106 Ga. 557, 32 S. E- 647. But see the comment of-
fered by Mr. Justice Beck in Rigbers v. Hathcock, supra.
Joinder of All Stockholders. — Where receivers undertake
to enforce by suit in equity the individual liability of the
stockholders of a bank as fixed by the charter in favor of
depositors, all the stockholders so liable may be joined in
one action. There is no misjoinder of causes of action or
of parties defendant. Harris v. Taylor, 148 Ga. 663, 98 S.
E. 86. See also, Moore v. Ripley, 106 Ga. 556, 32 S. E. 647;
Brobson v. Downing, 95 Ga. 505, 22 S. E. 277. And see
note to § 2251.
Sufficient Reason for Omitting Some Stockholders. — In a
suit by a receiver to enforce the individual liability of stock-
holders, an allegation that some of the stockholders are
dead and their estates are unrepresented, that others' are
corporations which are "defunct," and that others are be-
yond the jurisdiction of the court, sets forth a sufficient
reason for omitting them from the suit as parties defend-
ant. Wheatley v. Glover, 125 Ga. 710, 54 S. E. 626.
Sufficiency of Petition. — In a suit by the receiver to en-
force the individual liability of stockholders imposed by the
charter of a corporation, it is not necessary that the pe-
tition should allege that the creditors authorized the suit
to be brought. All that is necessary is an allegation that
the receiver was directed to sue by the court by which he
was appointed. Wheatley v. Glover, 125 Ga. 710, 54 S. E.
626. See also, Moore v. Ripley, 106 Ga. 556, 32 S. E. 647.
Section Quoted or Applied. — Sterling Elect. Co. v.
Augusta Tel., etc., Co., 124 Ga. 371, 52 S. E. 541; Tichenor
v. Williams Pavement Co., 116 Ga. 303, 42 S. E. 505; King
v. Sullivan, 93 Ga. 626, 20 S. E. 76; Riley v. Pope, 186 Fed.
857; Swicord v. 'Crawford, 148 Ga. 719, 98 S. E. 343.
§ 2250. (§ 1891.) List of stockholders to be ex-
hibited. — All corporations, whose shareholders
are individually liable under their charter, shall
keep on hand at all times a true and correct list
of the shareholders, and it shall be the right of
any creditor to inspect the same at any time dur-
ing the business hours of any working day. The
president and other officers shall produce such
lists whenever required by any creditor of said
corporation.
As to duty of presiding officer to give certified list of
stockholders to adversary party, and liability attaching
upon failure, see § 2254. As to list of stockholders in banks,
see § 2307. As to scope of this and the three sections next
preceding, see note to § 2247.
ARTICLE 8.
Suits Against Corporations or Stockholders.
§ 2251. (§ 1892.) Members of joint-stock com-
panies, corporations, etc., how sued. — In all suits
against the members of a private association,
joint-stock company, or the members of existing
or dissolved corporations, to recover a debt due
by the association, company or corporation,
of which they are or have been members, or for
the appropriation of money or funds in their
hands to the payment of such debt, the plaintiff
or complainant in such suit may institute the same,
and proceed to judgment therein against all or
any one or more of the members of such associa-
tion, company, or corporation, or any other per-
son liable, and recover of the member or mem-
bers sued the amount of unpaid stock in his
hands, or other indebtedness of each member or
members: Provided, the same does not exceed
the amount of the plaintiff's debt against such as-
sociation, company, or corporation; and if it ex-
ceed such debt, then so much only as- will be suf-
ficient to satisfy such debt. Acts 1855-6, p. 220.
Cross References. — As to actions by and against corpo-
rations generally, see 4 Cum. Dig. 147; 3 Enc. Dig. 672.
See also, generally, 10 Cum. Dig. 559; 11 Enc. Dig. 886.
As to enforcing liability against organizers of corporations,
see § 2220. As to recovery on unpaid stock subscriptions
when corporation insolvent, see note to § 2245. As to serv-
ice on corporation, see §§ 2258 et seq.
Section Cumulative. — The proceedings against members
[530]
§ 2251
SUITS AGAINST CORPORATIONS OR STOCKHOLDERS
§ 2253
of joint stock companies and corporations provided for iu
this section and the six following sections are cumulative,
not restrictive. Mosely v. Jones, 66 Ga. 466. See § 2257.
Applicable to Recover Debts Due by Corporations. — This
section applies to suits, "to recover a debt due by" cor-
porations. Greer v. Jackson, 146 Ga. 376, 380, 91 S. E. 417.
Not Applicable to Action by Corporation to Recover Un-
paid Subscriptions. — This section while authorizing suit in
cases to which it is applicable, also provides that the re-
covery must not exceed the amount of the debt sued for,
thus excluding from its purpose and authority suits by a
corporation against its subscribers on their subscription
contracts. Greer v. Jackson, 146 Ga. 376, 380, 91 S. E- 417.
Applicable in All Cases Where Stockholder Personally
Liable. — The provisions of this and the six following sec-
tions, may be resorted to in all cases where the stockholders
are personally liable under the charter, unless some specific
and exclusive mode is otherwise provided by the charter.
Heard v. Sibley, 52 Ga. 310.
But it is to be noted that there is a distinction made be-
tween the case where the stockholder is liable by reason
of a charter provision only and the liability for unpaid sub-
scriptions, as to the shareholder's right to a set-off and the
effect of a judgment against the corporation. Ed. Note.
Section Does Not Limit Jurisdiction of Equity. — The
provisions of this section, do not impose any limitation
upon the power of a court of equity to require a complete
adjudication of the rights of all parties interested in the
subject-matter, nor abridge the court's power to prevent a
multiplicity of suits by determining the respective rights
of all parties interested who may be before the court.
Graves v. Denny, 15 Ga. App. 718, 84 S. E. 187.
Effect of Judgments against Corporation. — In a proceed-
ing against a stockholder at the instance of a creditor, to
enforce the individual liability under the charter, a judg-
ment against the corporation establishes prima facie the
amount and validity of the debt. When the stockholder
was not a party to the suit against the corporation, and
had no opportunity to defend in that suit, he may, by way
of defense in the suit against him, set up not only any fact
which would absolve him from liability under the charter,
but also any fact which would establish that the corpora-
tion was not liable upon the debt which was the basis of
the judgment. Wheatley v. Glover, 125 Ga. 710, 54 S. E-
626.
But the judgment is conclusive as to the right of the
creditor to have his debt paid out of the assets of the
corporation. An unpaid subscription is an asset, and in this
case, as distinguished from the case of individual liability
by charter, the creditor's right to recover from the cor-
poration can not be questioned. Wheatley v. Glover, 125
Ga. 710.
Same — Legal Relation of Stockholder to Debt. — Where,
as in the case of Heard v. Sibley, 52 Ga. 310, proceedings
are instituted against a stockholder to enforce against him
an individual liability, imposed by statute, with respect to
the payment of debts contracted by the corporation, it
may with much force be urged that he occupies the position
of a surety, and therefore is not, in that capacity, con-
cluded by a judgment rendered against the corporation in
an action to which he was not a. party and which he had
no opportunity to defend. Harrell v. Blount, 112 Ga. 711,
38 S. E. 56.
Shareholder's Right to Set Off.— Shareholders of an in-
solvent corporation who are indebted to it upon unpaid
stock subscriptions and who are also its creditors can not,
in defense to an equitable proceeding brought by another
creditor in behalf of himself and all the creditors of the
corporation to wind up its affairs and, as an incident there-
to, subject these shareholders to liability upon such stock
subscriptions, set off against the amounts due thereon the
debts due to them by the corporation. In such a case,
"they must pay up what they owe like other debtors, and
then get their dividends like other creditors" when the
court distributes the assets among those entitled to the
same. Wilkinson v. Bertock & Co., Ill Ga. 187, 36 S. E.
623.
To such a case the rules governing the right of a stock-
holder of a corporation to set off a debt due by it to him
in defense to a common law action brought to enforce an
individual liability for its debts imposed upon him by stat-
ute have no application. Wilkinson v. Bertock & Co.,
Ill Ga. 183.
Liability of Transferee. — A mere recital in a stock cer-
tificate that the shares therein specified are "full paid and
non- assessable" will not protect the person named in the
certificate as the owner of such stock from liability for an
unpaid subscription thereon, if he in fact purchased the
stock with knowledge that the subscription was due.
Fouche v. National Bank. 110 Ga. 827, 36 S. E. 256.
In order to enable a creditor of a corporation to recover
from one alleged to be a stockholder therein, and as such
liable upon an unpaid stock subscription, it must appear
that the defendant was in fact such a stockholder at a
time when he was in law so liable. Fouche v. National
Bank, 110 Ga. 827, 36 S. E. 256.
Where Suit for Benefit of Subscribers. — This section has
ho application to a suit in which the receiver is endeavor-
ing to enforce, for the benefit of fully paid subscribers to
the capital stock of the corporation, contribution on the
part of those subscribers who have not paid their sub-
scriptions to the capital stock. Graves v. Denny, 15 Ga.
App. 718, 84 S. E- 187.
Joinder of Shareholders. — Where an industrial corpora-
tion has been adjudged a bankrupt and trustees have been
appointed, shareholders who received dividends from the
corporation before the adjudication of bankruptcy, which
were paid out of the capital assets of the corporation, may,
under this section, be joined in one action instituted by the
trustees, to recover the amount of the dividends so paid.
And such suit may be brought in the county of the resi-
dence of any one of the defendants. In such a case the
jurisdiction will include also a defendant who resides in an-
other county of this state. Carlisle v. Ottley, 143 Ga. 797,
85 S. E. 1010. See note to § 2246.
A trustee in bankruptcy of an insolvent corporation may,
in one equitable action, recover from any number of the
stockholders of the corporation their unpaid stock sub-
scriptions. Spratling v. Westbrook, 140 Ga. 625, 79 S. E-
536.
§ 2252. (§ 1893.) Notice to stockholders, and
effect of. — Plaintiff, within one month after the
institution of any suit against any corporation,
joint-stock or manufacturing company, may pub-
lish once a week for four successive weeks, in
some public gazette of this State, notice of the
commencement of said suit or suits, and said
publication shall operate as notice to each stock-
holder in said corporation, joint-stock or manu-
facturing company, for the purpose hereinafter
mentioned. Acts 1841, Cobb, 541.
"For the Purpose Hereinafter Mentioned." — "For the pur-
pose hereinafter mentioned" as used in this section means
those purposes are to get the names of the stockholders to
authorize the issue of an execution against each one, for
his part, and to authorize a defense of the suit by any
stockholder if the president fails or refuses. Heard v.
Sibley, 52 Ga. 310. See also, Stone v. Davidson, 56 Ga.
180.
Notice Need Not Appear of Record. — The fact of notice by
publication under this section need not appear of record.
Stone v. Davidson, 56 Ga. 180.
Creditors and stockholders of a bank will not be en-
joined from proceeding under this section, at the instance
of the general a'ssignee, where they have not agreed to
the assignment, nor reduced their demands to judg-
ment. Gresham v. Crossland, 59 Ga. 270.
§ 2253. ('§ 1894.) Judgment or decree. — When
notice has been given as provided in the preced-
ing sections, and a judgment or decree has been
obtained against any corporation, joint-stock or
manufacturing company, where the individual or
private property of the stockholders is- bound for
the whole or any part of the debts of said incor-
poration, joint-stock or manufacturing company,
execution shall first be issued against the goods and
chattels, lands and tenements of said corporation,
joint-stock or manufacturing company; and upon
the return thereof by the proper officer, with the
entry thereon of "no property to be found," then
and in that case the clerk, or other officer, upon
an application of the plaintiff, his agent, or at-
torney, accompanied with a certificate as herein-
after directed to be obtained, forthwith shall is-
sue an execution against each of the stockholders
(if required) for their ratable part of said debt
and cost of suit, in proportion to their respective
shares, or other liabilities under their charter of
[531]
§ 2254
CORPORATIONS, HOW SERVED
§ 2258
incorporation. Acts 1841, Cobb, 541; Acts
1855-6, p. 225.
Cross References.— As to liability of stockholders where
corporation fails, see § 2248. As to liability of stockholders
as assets, see § 2249. As to liability of stockholders for
unpaid stock subscription, see § 2823, par. 3.
Necessity of Showing Notice.— The fact of notice by pub*
lication under § 3371, need not appear of record. It need
not appear of record that the president of the company
furnished a certificate of the stockholders, and the number
of shares owned by each at the time the judgment was
rendered against the corporation, under this section. It is
enough that this fact exist; if it does not exist, and the fi.
fa. is for too much or otherwise illegal, the remedy of the
defendant is by affidavit of illegality. Stone v. Davidson,
56 Ga. 180.
Statute of Limitations.— Suit against a bank and notice
by publication to the stockholders, under this section and
§§ 2252 and 2254, in 1866, with judgment and execution and
return of "nulla bona" against the bank, and execution
thereupon in June, 1869, against a stockholder, with re-
turn of "nulla bona" in July of this year, will prevent the
bar of the statute of limitations of 1869 from attaching.
The suit against the stockholder began not later, at least,
than the issue of the execution against him, though no
levy was made upon his property until June, 1870. Stone
v. Davidson, 56 Ga. 180.
Pleadings Should Show Proportion. — As the stockholders
are liable for the debts of the company in proportion to
the stock severally held by them, the pleadings should
show the proportion. If the plaintiff has omitted to set
out the amounts in the original pleadings, he can amend
so as to insert them. Proceedings in this form would not
affect the right of the stockholder, under the charter, to
require any judgment thus obtained to be first enforced
against the property of the company. Andrews & Co. v.
Gwinnett Mfg. Co., 50 Ga. 637.
§ 2254. (§ 1895.) Presiding officer bound to
give the names, etc. — It shall be the duty of the
president or presiding officer of such incorpora-
tion, joint-stock or manufacturing company, by
whatever name he may be designated, upon ap-
plication of the plaintiff, his agent, or attorney,
forthwith to give a certificate, under oath, of the
stockholders in said company, and the number
of shares owned by each at the time of the rendi-
tion of judgment against said company; and if,
upon application by the plaintiff, his agent, or
attorney, the president or officer aforesaid shall
refuse to give a certificate as aforesaid, or shall
abscond or conceal himself to avoid giving the
same, the plaintiff, his agent, or attorney may
make oath of such refusal, and the clerk, or other
officer, shall issue an execution ' against such
president or presiding officer, as aforesaid, for the
amount of principal, interest, and cost of said suit.
Acts 1841, Cobb, 541.
As to liability of stockholder as asset, and authority of
assignee, receiver, etc., to enforce, see § 2249. As to duty
to exhibit list of stockholders to creditors, see § 2250.
§ 2255. (.§ 1896.) Who may defend suit.— If the
president or other officer of said corporation,
joint-stock or manufacturing company, shall fail
or refuse to defend, said suit or suits brought as
aforesaid, any one of the stockholders of the said
company shall be permitted to plead to and de-
fend the same in as full and ample manner as said
company, in its corporate capacity, could, or
might do. Acts 1841, Cobb, 541.
Stockholders Must Have Statutory Authority. — •Stock-
holders, except when expressly authorized by statute, are
not allowed to plead and defend for the corporation when
the suit is against it, and they are not on the record.
Blackman v. Central, etc., Co., 58 Ga. 189. And see Hearn
v. Clarke, 131 Ga. 374, 62 S. E. 187.
Where Stockholder Not Bound by Judgment. — If the
judgment is not to bind the individual property of the
stockholders, the stockholders have no right to defend.
Blackman v. Central R., etc., Co., 58 Ga. 189.
[5
Must Allege Corporation's Refusal. — Stockholders can
not maintain a bill for the protection of corporate prop-
erty, without alleging a refusal of the corporation to act in
its corporate name. Ware v. Bazemore, 58 Ga. 317.
Can Not File Plea to Jurisdiction. — Although stockholders
may, in a proper case, intervene in a suit against a cor-
poration, they can not file a plea to the jurisdiction in the
corporate name. See Hannah v. Union Consol., etc., Co.,
144 Ga. 291, 292, 86 S. F. 1085.
Foreclosure of Mortgage — Injunctions. — In a suit to fore-
close a mortgage made by a corporation it was held that
unless there was fraud or collusion the stockholders could
not interfere by injunction to restrain the foreclosure as
the corporation was the complainant, and the proper remedy
of the stockholders is by an independent suit. Central
Trust Co. v. Marietta, etc., Co., 48 Fed. 14.
§ 2256, (§ 1897.) Illegality of execution.— In a
judgment against a corporation, joint-stock or
manufacturing company, under the provisions of
this Code, the defendant or defendants in execu-
tion shall be entitled to an illegality under the
same rules, regulations, and, restrictions as de-
fendants are in other cases. Acts 1841, Cobb,
541.
See note to § 2251.
As the execution provided for is, in effect, only a mode
of suit, the stockholder, unless the charter otherwise pro-
vides, may set up in his illegality any defense that he
might make to the merits in a suit brought against him in
the ordinary way, and he is not concluded by the judg-
ment against the corporation upon any issue material to
his defense. Heard v. Sibley, 52 Ga. 310. But see the
opinion of the Justice Cobb in Wheatley v. Glover, 125 Ga.
710, 54 S. Fy. 626, where the above case is considered. See
notes of this case under § 2251.
Where an execution issues against a stockholder of a
corporation to enforce individual liability and the defend-
ant sets up his defense by affidavit of illegality, the de-
fendant has all the rights and privileges as to pleas and
amendments that he would have in ordinary suits on con-
tracts. Heard v. Sibley, 52 Ga. 310.
§ 2257. (§ 1898.) Cumulative only. — The pre-
ceding sections in relation to proceedings against
corporations, joint-stock and manufacturing
companies, shall be understood and construed as
cumulative of the common law. Acts 1841,
Cobb 542.
ARTICLE 9.
Corporations, How Served.
§ 2258. (§ 1899.) Service of process, how per-
fected.— Service of all subpoenas, writs, attach-
ments, and other process necessary to the com-
mencement of any suit against any corporation
in any court, except as hereinafter provided, may
be perfected by serving any officer or agent of
such corporation, or by leaving the same at the
place of transacting the usual and ordinary pub-
lic business of such corporation, if any such place
of business then shall be within the jurisdiction
of the court in which said suit may be com-
menced. The officer shall specify the mode of
service in his return. Act 1845, Cobb, 475.
I. Editor's Note.
II. Service Upon Agent.
III. Leaving Copy at Place of Business.
IV. Applied to Foreign Corporations.
V. The Return.
Cross References.
See, generally, 10 Cum. Dig. 244; 11 Fmc. Dig. 523.
As to service in suits against members of corporations,
see § 2251. As to service on lessee of railroad, see § 2800.
As to service on insurance companies generally, see § 2564.
As to service on mutual insurance company, see § 2542. A*
to service in suits against telegraph companies, see § 2814.
As to service on non-resident insurance companies, see
§§ 2446, 2564. As to service on foreign building and loan
companies, see § 2888. As to service on fraternal and
32 ]
§ 2258
CORPORATIONS, HOW SERVED
§ 2258
benevolent corporations, see § 2874. As to service on ex-
press companies, see §§ 2386, 2387. As to serving notice of
traverse to answer of garnishee on non-resident corpora-
tion, see § 5285. As to how suits against counties are
brought and served, see § 385. As to attachments against
foreign corporations, see § 5072 and note.
I. EDITOR'S NOTE.
For a thorough understanding of venue and service in
actions against corporations, it is necessary that this sec-
tion and § 2259 be considered together.
Under the Constitution of this state, § 6543, suit can be
brought only in the county in which the defendant resides.
Generally, a domestic corporation resides where its princi-
pal place of business is located by charter. Superadded
statutory residences for purposes of suit are entirely and
exclusively within the legislative power, and these two
sections constitute the general legislative enactment on
this subject. For sections pertaining to particular kinds
of companies, see the cross references immediately fol-
lowing the analysis of this note, together with the ref-
erences under § 2259.
In determining the venue of suits against corporations
under these sections it is necessary to draw a distinction
between actions ex contractu and actions ex delicto.
Suit in actions ex contractu may be brought in three
places, under the constitution (1) where the corporation
has its principle place of business, under § 2259, (2) where
the contract is made, or, (3) where it is to be performed.
In order for these last two alternatives to be available, the
section expressly provides that there must be in the county
an office where the company transacts business.
After venue has been determined in actions ex contractu
service may be had by following the requirements of this
section (2258) as explained by the decisions which follow in
this annotation.
Actions ex delicto vary from actions ex contractu in the
following respects. (1) The' venue is confined to two places,
(a) under the constitution the venue may be where the de-
fendant resides, (b) under § 2259 the venue may be where
the cause of action originated. (2) Service of process in
actions ex delicto may be by either of the two modes ex-
pressed in § 2258, but in § 2259 these modes are expressly
made disjunctive alternatives, i. e. in order to perfect serv-
ice at the agency or place of business of the corporation it
must appear that the corporation has no agent in the
county with whom a copy of the writ could be left.
To arrive at this conclusion it must be noted that the last
sentence of § 2259, "Service of such suits," etc., applies only
to actions ex delicto, and not to the ex contractu actions
specified in the first part of that section.
To recapitulate, considering the methods enumerated in
this section as first and second, respectively, if the action
is ex contractu, a choice of the first and second methods
exists; while if the action is in tort, the procedure is pre-
scribed by statute, § 2259, so that the second method is
contingent upon the impossibility of following the first
method.
In ascertaining the rules set out in this summary refer-
ence has been made to all the Georgia cases on the sub-
ject. As authority for the most of the statements made,
see Tuggle v. Enterprise Lumber Co., 123 Ga. 480, 51 S.
E. 433; Central Georgia Power Co. v. Parnell, 11 Ga. App.
779, 76 S. E. 157; Padrick v. Kiser Co., 33 Ga. App. 15,
124 S. E. 901.
II. SERVICE UPON AGENT.
Must Be Personal. — In construing this section the Su-
preme Court has rigidly adhered to the ruling that service
on the agent must be personal service and that resident
service is not sufficient. Ellis v. Southern Exp. Co., 27
Ga. App. 738, 110 S. E. 43. In other words, there can not
be a combination of the two methods allowed by this sec-
tion. Ed. Note.
For application of this rule, • where motions to dismiss
were sustained for improper service, see Stuart Lumber
Co. v. Perry, 117 Ga. 888, 45 S. E- 251; Anderson v. Albany,
etc., R. Co., 123 Ga. 318, 51 S. E. 342.
What Constitutes an Agent Within Meaning of Section.
— There is nothing in the language of this section or §
2259, which suggests that the word "agent" as therein used
was intended to be understood in any unusual limited or
restricted sense, or otherwise than is justified by its ordi-
nary signification. Southern Bell Tel. Co. v. Parker, 119
Ga. 721, 728, 47 S. E. 194.
In an ordinary private corporation, whose creation is
primarily for the personal gain of its stockholders, and
which in the conduct of its affairs employs agents to carry
on the general business, service of process on the corpora-
[ 533 ]
tion may be effected on any agent who has some sort of
control or authority over some department or sphere of
the corporation's business. Medical College v. Rushing,
124 Ga. 239, 242, 52 S. E. 333. Southern Bell Tel., etc., Co.
v. Parker, 119 Ga. 721, 47 S. E. 194; Reeves v. Southern R.
Co., 121 Ga. 561, 49 S. E. 674.
Same — Receiver's Agent. — In a suit fur damages against
a corporation in the hands of a receiver, service of process
upon an agent of the receiver is not good service as to the
corporation. Cain v. Seaboard, etc., Ry., 7 Ga. App. 461,
67 S. E. 127.
Same — Employee or Servant. — But it was never intended
that a corporation should be bound by service on a mere
employee or a mere servant of the corporation, in a
limited sense. Southern Bell Tel. Cd. v. Parker, 119 Ga.
721, 727, 47 S. E. 194. See also, Georgia R., etc., Co. v.
Head, 150 Ga. 177, 181, 103 S. E. 168, where it was held
that the evidence was insufficient to take the person upon
whom process was served out of the mere employee class.
And see, Central Georgia Power Co. v. Nolan, 143 Ga.
776, 85 S. E. 945, where it was held that, the evidence was
sufficient to authorize the jury to find that the person
on whom the service of the petition and process was per-
fected was an agent of the defendant company, within the
meaning of this section, rather than a mere servant.
Same — Inferior Clerk. — Where it appeared that the sum-
mons was served upon one who was chief clerk in the
Atlanta offices of the defendant corporation, it was held,
although it appeared that there was another person who
was superior in rank to the one upon whom service was
made, and who bore the official designation of "agent," the
service was nevertheless good, under this section. Louis-
ville, etc., R. Co. v. Mitchell, 6 Ga. App. 390, 64 S. E. 1134.
Same — Subordinate Lodge. — It was held in Jones v. Dis-
trict Grand Lodge, 12 Ga. App. 273, 76 S. E. 279 that un-
der the evidence a subordinate lodge was not the agent of
the superior lodge and under this section jurisdiction over
the subordinate lodge did not give jurisdiction over the
superior lodge. Whether the subordinate lodge is such
an agent depends upon the scheme of organization as set
forth in the constitution and by-laws of the superior lodge.
See the note of Hurley v. District Grand Lodge, 24 Ga.
App. 197, 100 S. E. 233, under § 2563, where it was held that
a subordinate lodge was the agent of a fraternal benefit
society.
Same — Member of College Faculty. — The Medical College
of Georgia is a public eleemosynary corporation, and neither
by its charter nor by-laws adopted under authority of its
charter is a member of the faculty of that institution, or
the dean thereof, such an officer or agent of the corpora-
tion as is contemplated in this section, providing for serv-
ice of suits against a corporation by serving one of its
officers or agents. Medical College v. Rushing, 124 Ga.
239, 52 S. E. 333.
Same — Agent of Foreign Corporation Representing Geor-
gia Corporation. — In this state service can not be perfected
on a domestic corporation by serving an agent of a foreign
corporation, which foreign corporation is alleged to be the
agent of the domestic corporation. Ellis v. Southern Exp.
Co., 27 Ga. App. 738, 110 S. E. 43.
Presumption of Continuance As Proper Agent. — Where
an officer is shown to have been duly authorized to ac-
cept service, in the absence of proof showing affirmative
action terminating his previous relation, he will be pre-
sumed to be a proper agent of the corporation upon whom
service may be perfected. Quitman Oil Co. v. Peacock,
14 Ga. App. 550, 551, 81 S. E. 908.
III. LEAVING COPY AT PLACE OF BUSINZSS.
Service may be perfected on a resident corporation by
leaving a copy at its agency or at the place of its usual and
ordinary public business, if there be one within the juris-
diction of the court in which the action is brought. Geor-
gia, etc., R. Co. v. Bigelow, 68 Ga. 219; Schmidlapp, etc.,
Co. v. La Confiance Ins. Co., 71 Ga. 246. For other cases,
see 11 Enc. Dig. 523.
IV. APPLIED TO FOREIGN CORPORATIONS.
In General. — Under this section a foreign corporation do-
ing business in this state and having agents located there-
in for this purpose may be sued and served in the same
manner as domestic corporations, upon any transitory
cause of action whether originating in this state or other-
wise; and it is immaterial whether the plaintiff be a non-
resident or a resident of this state, provided enforcement
of the cause of action would not be contrary to the laws
and policy of this state. Reeves v. Southern R. Co., 121
Ga. 561, 49 S. E. 674. See City Fire Ins. Co. v. Carrugi, 41
Ga. 660. For full treatment of actions by and against
§ 2258
CORPORATIONS, HOW SERVED
§ 2259
foreign corporations generally, see 6 Cum. Dig. 308; 6 Enc.
Dig. 275.
And it has been frequently held that service on railroad
companies may be made in the same manner as on other
corporations, see Georgia, R., etc., Co. v. Willis, 28 Ga.
317; Hodges v. Atlantic, etc., R. Co., 51 Ga. 244; Cherry
v. North, etc., R. Co., 59 Ga. 446. See also generally, 10
Cum. Dig. 247; 11 Enc. Dig. 524. And see, §§ 2798 et seq
where the cases relating to service on railroads will be
found.
"Doing Business in This State." — A foreign railroad cor-
poration which neither owns, leases, nor operates any line
of road within the state of Georgia is not doing business
within the state, in the sense that liability to service is
incurred because it maintains an office and employs an
agent, resident in the state, for the merely incidental busi-
ness of soliciting freight; especially where the transitory
cause of action did not grow out of, and had no connection
with, business so initiated. Vicksburg, etc., Ry. v. DeBow,
148 Ga. 738, 98 S. E. 381, reversing 21 Ga. App. 732. See
same case 23 Ga. App. 715; see also West v. Cincinnati,
etc., Ry. Co., 170 Fed. 349; see 6 Cum. Dig. 309; 6
Enc. Dig. 276; and where a foreign insurance com-
pany did business in South Carolina and Florida, but
none in Georgia, and had no agency in the latter state, an
agent of the company resided in Georgia, who audited and
approved claims arising in South Carolina and Florida,
gave checks for amounts due on account thereof, and when
in funds, sometimes paid them, it was held that the
courts of Georgia had no jurisdiction of the company; and
upon the facts above stated, a garnishment served upon
an agent residing in this state was properly discharged.
Schmidlapp, etc., Co. v. La. Confiance Insurance Co., 71
Ga. 246.
But where the receiver of a foreign railroad operated a
connecting railroad in this state as part of a through line,
under a contract by which they were to operate the
Georgia branch under the laws of Georgia, furnish their
own rolling stock, for which the Georgia road should pay a
certain amount, that each road should contribute its pro-
portion of the expenses, and the net proceeds should be
divided pro rata, a depot agent on the line of the Georgia
corporation was such an agent of that company as could be
served with process against it, though he might have been
employed by the receivers and made remittances to them,
by whom the proceeds were afterwards distributed under
the contract. Georgia, etc., R. Co. v. Bigelow, 68 Ga. 219.
Agent Attending Court as Witness. — An agent of a
foreign corporation who attends a court in this state for the
sole purpose of testifying as a witness for the state in a
criminal case is exempt from service upon him, as such
agent, of a process against the corporation. The Fidelity,
etc., Co. v. Everett, 97 Ga. 787, 25 S. E. 734.
Acknowledging Service — The agent of a foreign corpora-
tion may acknowledge service of a declaration in attach-
ment so as to authorize a general judgment against his
principal. Grant v. Cosby, 51 Ga. 460.
Railroads and Electric Companies.— See § 2798, and the
notes thereto.
V. THE RETURN.
What Return Should Show. — The officer serving process
on a corporation should specify in his return the manner
in which service was perfected. Where suit was brought
against a corporation and a natural person, a return of
service was not good against the former when made in
these terms: "Served each of the defendants personally
with a copy of the within summons." Hayden v. Atlanta
Savings Bank, 66 Ga. 150. See also, Hunnicutt v. Reed.
149 Ga. 803, 102 S. F. 421.
But where suit was brought in the superior court against
a corporation, process was issued directed to it, and the
sheriff made a return stating that "I have this day served
the defendant's agt. [naming him] with a copy of the
within writ, by handing copy to said agt.," such an entry
of service was not void, and the record of the suit with the
judgment thereon was not inadmissible as evidence on
that ground. Phillips v. Bond, 132 Ga. 413.
A return showing service on a named person, the agent
in charge of defendant's place of business in the county,
was also held sufficient in Albany, etc., R. Co. v. Dunlap
Hardware Co., 8 Ga. App. 171, 68 S. E. 868.
Same — "Defendant Being In Charge." — Where service ot
process in an action for damages was made by serving the
president of the corporation personally, it was not an es-
sential part of the return that the sheriff recited in his
return: "said [defendant] being the officer in charge of
said company's office and business in" the county where the
suit was brought; and on the trial of a plea to the jurisdic-
tion such recital was not evidence that the defendant had
an office in the county. Kimsey v. Macon Lumber Co.,
136 Ga. 369, 71 S. E. 675.
Same — Location. — It is unnecessary that the return of
the officer should show at what point within the county
the company transacted its usual and ordinary business, or
that the agent served was the company's representative
having charge of such business. Southern Bell Tel., etc.,-
Co. v. Parker, 119 Ga. 721, 729, 47 S. E. 194.
Amendment of Return. — Where, in a suit against a cor-
poration, the officer's return of service shows that the
corporation has been served, it is permissible to amend the
return so as to show that service upon the corporation was
perfected be handing a copy to a named person as its
agent in charge of its office and business in the county
where the suit was brought. Seaboard Air-Line Railway
v. Davis, 13 Ga. App. 14, 78 S. E. 687.
§ 2259. (§ 1900.) Where suits may be brought
on contracts or for torts. — Any corporation, min-
ing, or joint-stock company, chartered by author-
ity of this State, may be sued on contracts in that
county in which the contract sought to be en-
forced was made or is to be performed, if it has
an office and transacts business there. Suits for
damages, because of torts, wrong or injury done,
may be brought in the county where the cause
of action originated. Service of such suits may
be effected by leaving a copy of the writ with the
agent of the defendant, or if there be no agent
in the county, then at the agency or place of busi-
ness. Acts 1884-5, p. 99.
Cross References. — As to venue of civil cases generally, see
§ 5526. As to venue of actions against express companies,
see § 2385. As to venue of suits against insurance companies
generally, see § 2563. As to venue of suits on bonds of fidelity
insurance companies, see § 2553. As to venue of actions
against companies under control of railroad commission for
recovery of penalties, see § 2667. As to venue of suits
against railroad companies, see § 2798. As to venue of
suits against telegraph companies, see § 2814. As to venue
of suits against banks, see §§ 2350 and 2364.
See Editor's Note to § 2258. See also, 11 Enc. Dig. 347;
12 Enc. Dig. 648.
Editor's Note. — This section is frequently construed with
§ 2258. In the editor's note to § 2258 will be found a brief
summary of venue and process in actions against corpora-
tions. The summary contains important construction of
this section, and reference should be made thereto.
"Agency," "Office" and "Place of Business" Synony-
mous.— The word "office," as used in this section, is
synonymous with "place of business." General Reduction
Co. v. Tharpe, 11 Ga. App. 334., 75 S. E. 339; Padrick v.
Riser Co., 33 Ga. App. 15, 18, 124 S. E. 901. Agency and
place of business are also synonymous. Tuggler v. Enter-
prise Co., 123 Ga. 480, 481, 51 S. E. 483.
What Constitutes a PJace of Business. — A plant for the
manufacture and distribution of electrical power at which
is maintained a large force of laborers, under the control of
a superintendent or foreman, is a place of business, within
the meaning of this section, qnd an action ex delicto upon
a cause of action originating in a county where such a
place of business is maintained may be brought in that
county, notwithstanding the principal office of the corpora-
tion owning the business is by its charter located in another
county, where its directors meet and its financial opera-
tions are conducted. Central, etc., Power Co. v. Parnell,
11 Ga. App. 779, 76 S. E. 157.
Discontinuance of Office. — Although a corporation had
previously maintained an office in the county where suit is
brought, if such office has been discontinued before suit
was filed it follows that a directed verdict in favor of
defendant's traverse of the entry of service and plea to the
jurisdiction, is not error. . Padrick v. Riser, 33 Ga. App.
15, 124 S. E. 901.
Trover Included in Words "Suits for Damages." — Under
a proper construction of this section an action for trover
would be within the words "suits for damages," and the
venue of such actions is where the wrong is committed.
McGahee v. Hilton, etc., Lumber Co., 112 Ga. 513, 515, 37 S.
E. 708.
Not Applicable to Mandamus — This section does not ap-
ply to mandamus proceedings to compel an express com-
pany to transport goods. Sprinkle Distilling Co. v. South-
ern Express Co., 141 Ga. 21, 80 S. E- 288; Gardner v.
Daughter Express Co., 141 Ga. 23, 80 S. E. 289. See §
2385, and notes thereto.
Not Applicable to Suit for Equitable Relief. — A corpora-
[534]
§ 2260
PRIVATE CORPORATIONS
§ 2366(1)
tion of this state is not subject to a suit for equitable re-
lief by injunction in a county other than that fixed by its
charter as the county of its principal office; and this is
true although the suit embraces also a claim for past
damages. Etowah Milling- Co. v. Crenshaw, 116 Ga. 406,
42 S. E- 709; Porter v. Mutual Ins. Co., 145 Ga. 543, 89 S.
E. 609. See also Georgia Land, etc., Co. v. Savannah River
Lumber Co., 150 Ga. 202, 103 S. E. 167. See § 6540.
Libel. — A resident corporation is suable for libel, under
this section, only in the county of its principle office, or in
the county of the publication of the libel. Wallace v. So.
Express Co., 7 Ga. App. 565, 67 S. E. 694.
Applied in Hatton v. Johnson, 157 Ga. 313, 322, 121 S. E.
404; Gillis v. Helton, etc., Lumber Co., 113 Ga. 622, 38 S.
E- 940.
§ 2260. (§ 1901.) Garnishment proceeding. —
Where such corporation has an agent and place of
business in any county or district in which there
may be a suit, attachment, or judgment upon which
garnishment is sought against such corporation,
the court wherein is pending said proceedings up-
on which the garnishment is based shall have jur-
isdiction also of the garnishment proceeding, and
service of summons of garnishment upon the agent
in charge of the office or business of the corpora-
tion or company in the county or district at the
time of service shall be sufficient service.
Cross References. — See § 5270 and notes thereto. See
also, generally, 6 Cum. Dig. 603; 6 Enc. Dig. 738. As to
attachments, see generally, 2 Cum. Dig. 281; 1 Enc. Dig.
660.
Construed with Section 5270. — The decisions construing
this section and § 5270 (relating to garnishments on cor-
porations), can all be reconciled by noting whether in
the particular case the process was valid or void; whether
the return was void or only defective; whether the issue
was raised before or after judgment, and whether on the
hearing the evidence or pleadings showed that the service
was good or bad. Jones v. Bibb Brick Co., 120 Ga. 321,
48 S. E. 25. And see Phillips v. Bond, 132 Ga. 421 where
decisions construing this section and § 5270 are reviewed
and reconciled. Ed. Note.
Applied in Tifton Compress Co. v. Robinson, 31 Ga. App.
350, 120 S. E. 701; Central, etc., R. Co. v. Collum, 130 Ga.
434, 60 S. E. 1060.
§ 2261. (§ 1902.) When and how service may
be perfected by publication. — In all cases where
any corporation shall have no public place for do-
ing business, or shall have no individual in office
upon whom service of writs or process may be per-
fected, within the knowledge of any party, the
plaintiff may make an affidavit that the said cor-
poration has no public place of doing business, or
has no individual in office upon whom service of
writs or process may be perfected, within the
knowledge of said complainant, -and such affidavit
being filed in the clerk's office of the court to
which the said writ may be made returnable, the
clerk of the said court shall issue a citation to the
said defendants to be and appear at the said court,
to answer the complaint; which citation shall be
published, once a week for three weeks prior to the
court to which the said complainant may be re-
turnable, in some newspaper published in the
county in which suit is brought; if no paper is
published therein, then in the one nearest thereto;
and such advertisement shall be deemed and held
a service upon such corporation for all purposes,
and any copy of the newspaper containing said
publication shall be received in any of the courts
as sufficient evidence of such service. Act 1845,
Cobb, 475. Acts 1855-6, p. 224.
As to general provisions for service by publication, see
§§ 5553, 5554, 5556.
Not Applicable Where Personal Service May Be Had. —
Where there are officers in the state upon which service
might be perfected personally this section has no applica-
tion. Hutcheson Mfg. Co. v. Chandler, 29 Ga. App. 726,
729, 116 S. E. 849.
Not Applicable to Justice Courts. — The provisions of
this section do not apply to courts having no clerk, thus
it is not applicable to justice courts. Nashville, etc., R. v.
McMahon, 70 Ga. 585.
This section is sufficiently complied with where citation
is published in a newspaper in the county where suit is
brought, once a week for three weeks prior to the court
to which the complaint is made returnable, though not
during the week immediately preceding the term to which
the case is returnable. Ellis v. Southern Express Co., 15/
Ga. 629, 122 S. E. 48.
Corporation Ceasing to Do Business. — Where the stock-
holders in a corporation, by resolution, ceased to do busi-
ness, and directed that all its assets be placed in the hands
of one of its officers, for the purpose of being converted
into money for distribution amongst the stockholders after
payment of his debts; though the corporation may have
no public place for doing business, and no one in office upon
whom process may be served, a remedy for such a case
is provided in this section. Young v. Moses, 53 Ga. 628.
Amendment After Long Delay Perfecting Service. —
Where a declaration was filed and process attached against
a corporation, and a regular return made by the sheriff
that the defendant was not to be found, and that the presi-
dent of the corporation was dead, the plaintiff is not en-
titled after the lapse of five terms of the Court without
having taken any further action, or showing sufficient legal
reason for the delay, to amend the process so as to make
it returnable to the then ensuing term, and to perfect serv-
ice by publication under this section. Branch v. Me-
chanics' Bank, 50 Ga. 413.
Attestation by Foreign Notary. — A paper purporting to
be an affidavit attested by a person as a notary public in
another State, with nothing to authenticate his official
character as such, should not be treated as an "affidavit"
authorizing the proceedings prescribed by this section for
perfecting service in certain cases against corporations.
Brunswick Hardware Co. v. Bingham, 107 Ga. 270, 33 S.
E- 56; Brunswick Hardware Co. v. Bingham, 110 Ga. 526,
35 S. E. 772.
CHAPTER 2.
Private Corporations.
ARTICLE l.
Banks.
§§ 2262-2366. — These sections were repealed by
Acts 1919, p. 135 herein codified with amendments
as §§ 2366(1)-2366(196).
For a note on question of notice to officers and agent as
being notice to bank, see § 3599. By referring to the
title "Banks and Banking," 2 Cum. Dig. 591, 2 Enc. Dig.
251 an exhaustive treatment of the banking laws of
Georgia prior to the repeal of the above code sections will
be found. See also editor's note, under § 2366 (1).
SECTION l.
Preliminary Provisions.
§ 2366(1). Bank, definition of. — The term
"bank" as used in this Act means any moneyed
corporation authorized by law to receive deposits
of money and commercial paper, to make loans, to
discount bills, notes, and other commercial paper,
to buy and sell bills of exchange, and to issue bills,
notes, acceptances or other evidences of debt, and
shall include incorporated banks, savings banks,
banking companies, trust companies and other
corporations doing a banking business in this
State, but, unless the context otherwise indicates,
shall not include private bankers, copartnership or
voluntary associations doing a banking business,
or national banking associations, or building and
[ 535 ]
§ 2366(2)
PRELIMINARY PROVISIONS
§ 2366(3)
loan associations or similar associations or corpo-
rations, provided, however, that the following sec-
tions of this Code, to-wit, § 2366(181) defining due
diligence on the part of a bank collections, § 2366-
(182) authorizing the forwarding of collection
items direct to the payor, § 2366(185) providing
for the payment of deposits in two names, § 2366-
(186) authorizing the payment under certain cir-
cumstances of the checks of a deceased, bankrupt
or insane depositor, § 2366(187) authorizing de-
posit accounts by minors, § 2366(188) providing
for the payment of deposits by agents, trustees or
other fiduciaries, § 2366(189) providing for the pay-
ment of deposits in trust, § 2366(190) providing a
limitation for claims on account of forged or raised
checks, § 2366(194) providing for the payment of
deposits of not more than $100.00 of deceased
depositors shall apply to private banks, national
banking associations and all other persons, cor-
porations or associations, by whatever authority
organized, doing a banking business in this State.
The term "bank" shall include a branch bank un-
less the context indicates that it does not. Acts
1919, p. 135; 1925, p. 119.
For other definition of "bank," see 2 Cum. Dig. 594, 2
Enc. Dig. 253.
Editor's Note.— In 1918 the State constitution, § 6490 of
this Code, was amended to increase the salaries of the
state treasurer and his assistants. It was provided that
the amendment should not take effect until the Bank
Bureau should have been separated from the treasury de-
partment according to law. This amendment made way
for a State banking department in charge of a modern
banking system. A banking code was submitted to the
legislature in 1919 the purpose of which was to replace and
supersede all existing banking law. It was adopted and is
herein codified as this and the following sections, together
with its amendment. In this adopting act it was provided
that it should supersede all existing laws regulating bank
and banking in this State and repeal all laws and parts of
laws in conflict therewith.
This law seems to be chiefly modeled after the banking
laws of the state of New York while in some instances it
resembles the national law and in others the law of Ala-
bama. In editing this article these laws are frequently
compared to ascertain the true legislative intent. Also,
many obscure points were clarified by reference to Michie
on Banks and Banking and Parks Banking Law of Georgia.
National Banks. — National banks are private associations
authorized by Congress for the joint purposes of con-
venience and profit to the holders of United States bonds,
and of furnishing the public with a convenient and uniform
circulating medium. Linton v. Chiles, 105 Ga. 567, 32 S. E.
617. See also 2 Cum. Dig. 670 et seq., 2 Enc. Dig. 308 ct
seq.
Trust Companies and Savings Banks. — See 2 Cum. Dig.
669, 676, 2 Enc. Dig. 308.
§ 2366(2). Depositors. — The term "depositor"
as used in this act means any person who shall de-
posit money or commercial paper in any bank, either
on open account, subject to check, or to be with-
drawn otherwise than by check, whether interest
is allowed thereon or not, and shall include holders
of demand and time certificates of deposit lawfully
issued. Acts 1919, pp. 135, 136.
Editor's Note.— The purpose of this section is to define
clearly the status of depositors. It has been held that the
holder of certificates of deposits are depositors within the
meaning of provisions imposing on stockholders a statu
tory liability. See Lamar v. Taylor, 141 Ga. 227, 80 S. E.
1085. So in a suit by a depositor against a bank, upon
certificates of deposit issued by the bank to him or his
agent, the plaintiff made a prima facie case of liability by
proof of the execution and delivery of the certificates as
alleged. Atlanta Trust, etc., Co. v. Close, 115 Ga. 939 (1);
42 S. E- 265; Bank v. Hall, 33 Ga. App. 358, 126 S. E. 728.
The term "subject to check" was held, in Dottenheim v.
Union Sav. Bank, etc., Co., 114 Ga. 788, 40 S. E. 825, to
mean subject to payment without limitation or restriction,
except that the check must be presented to the bank
within banking hours on banking days.
McGregor v. Battle, 128 Ga. 577, 58 S. E. 28, held that
when money is placed in a bank on general deposit the
title of the money immediately passes to the bank, and
the relation of debtor and creditor is created between bank
and the depositor. The moment the deposit is made the
credit of the banker is substituted for the money. For a
further treatment of deposits, see 2 Cum. Dig. 628, 2 Enc.
Dig. 275. Reference should be made to § 3496 of this code
to determine when deposits are naked deposits.
Where money is in the hands of a bank on general de-
posit it is entitled to hold it without payment of interest
in the absence of special contract. Atlanta Nat. Bank v.
Burke, 81 Ga. 597, 7 S. E. 438. See also 2 Cum. Dig. 632,
2 Enc. Dig. 280.
§ 2366(3). Branch banks. — Banks whose capital
has been fully paid in and is unimpaired may es-
tablish branches in the cities in which they are
located or elsewhere, after having first obtained
the written approval of the Superintendent of
Banks, which approval may be given or withheld
by the Superintendent in his discretion, and shall
not be given until he shall have ascertained to his
satisfaction that the public convenience and ad-
vantage will be promoted by the opening of such
branch.
Such branch banks shall be operated as branches
and under the name of the parent bank, and under
the control and direction of the Board of Directors
and executive officers of said parent bank.
The Board of Directors of the parent bank shall
elect a cashier, and such other officers as may be
required to properly conduct the business of said
branch, and a Board of Directors, or loan com-
mittee, who shall be responsible for the conduct
and management of said branch but not of the
parent bank, or of any other branch save that of
which they are officers, directors, or committee.
At the time of the establishment of any branch
the Board of Directors of the parent bank shall
set aside for the exclusive use of said branch such
porportion of its capital or surplus as may be re-
quired by the Superintendent of Banks; in no event
less than is required for the organization of a bank
in the city, town or village in which the branch
shall be located. Provided, that the parent bank
shall not by such assignment of a portion of its
capital reduce the capital to an amount less than is
required for the organization of a bank in the city,
town or village in which said parent bank is
located; nor shall the parent bank by such assign-
ment of a portion of its surplus reduce the surplus
account to an amount less than twenty (20) per
cent, of its capital.
Branch banks shall be taxed on the capital set
aside to their exclusive use in the counties, muni-
cipalities and districts in which they are located,
and the parent bank shall be relieved of taxation
to the extent of the capital set aside for the ex-
clusive use of such branches. Acts 1919, pp. 135,
136; 1920, pp. 102, 108.
Editor's Note.— Prior to the act of 1859, § 2364 of the
Code of 1910, the general law for the incorporation of
banks made no provision for branch banks, however,
special acts chartering banks authorized their establish-
ment. By the act of 1862, § 2364 of the Code of 1910, suits
were authorized against banks in any county in which
there was an agency of such bank. The provision in this
act requiring the directors of the parent bank to set aside
for the exclusive use of each branch such proportion of its
capital as may be required, etc., evidently followed the
requirements of the Federal statute that where national
[536]
§ 2366(4)
DEPARTMENT OF BANKING
§ 2366(8)
banks with branches are created definite proportions must
be set aside. See Federal Statute Annotated (Sec. Fd.)
vol. 6, p. 664, (first Ed.) vol. 5, p. 111.
For a provision in the tax act similar to the last para-
graph of this section reference should be made to § 993 (1381
of this Code, see also § 991 of the Code of 1910.
The provisions in this section relating to surplus were
added by the acts of 1920.
§ 2366(4). Private banks. — No private person,
firm, or voluntary association engaged in the busi-
ness of banking in this State not subject to the
supervision of the Superintendent of Banks, and
no private corporation except a bank duly chartered
and organized under the laws of this State or un-
der the Acts of Congress, shall make use of any
office sign at the place where such business is
transacted, having thereon any name importing a
corporation, or the name of any city, town or
county, or other words, indicating that such office
or place of business is that of a regularly chartered
bank; nor shall such person, firm, or corporation
make use of or circulate any letter-heads, bill-
heads, bank notes, blank receipts, certificates, cir-
culars, or any written or printed paper whereon
such name importing a corporation, or name
wherein the name of any city, town, or county is
used, or any other words, indicating that such busi-
ness is the business of a regularly chartered bank;
Provided that no private bank engaged in business
at the time of the passage of this act shall be re-
quired to change the name adopted and in use by
it.
No person, firm, or voluntary association, or
private corporation, other than a regularly
chartered and organized bank, shall use the words
"bank," "banking company," "banking house," or
any other similar name indicating that the business
done is that of a bank, either upon any office sign
at its place of business or upon any of its letter-
heads, bill-heads, blank notes, receipts, certificates,
circulars, or any other written or printed paper,
without also using therewith the words plainly
written or printed, so that the same may be readily
read, "Private Bank, Not Incorporated," and every
person, firm, association, or private corporation
other than a regularly chartered bank, advertising
to receive, or receiving deposts, shall at the window
or desk at which such deposits are received place a
conspicuous sign with letters not less than one inch
in height, upon which shall be printed the words,
"Private Bank, Not Incorporated." Provided that
any private banker or bankers, engaged in the
banking business at the time of the passage of this
act, may continue to use, without further qualifica-
tion or restriction, the word "Banker" or
"Bankers," where the use of their names convey
unmistakably that they are not incorporated. Acts
1919, pp. 135, 136.
As to the incorporation of private banks, see §§ 2366
(105), (106), (107).
As to violation of this section, see § 211 (35) P. C.
Editor's Note — A private banker is one who exercises in
his business no more than the rights and privileges of all
men, as distinguished from a bank or association or per-
son who has taken advantage of the provisions of statutes
and by a compliance with the conditions of them has
priviliges not natural and common. He is private in his
business in as much as he may conduct it as he pleases
within the law, and is not subject to visitation or scrutiny
by the state. Those -who have a banking business under
an enabling statute are public in as much as the public has
given the right and has the power to demand securities
and to have reports, and to make inquiry into the busi-
ness and how it is conducted. The individual banker of the
statutes is a public banker, but he is different from per-
sons associating for the purpose of becoming public bank-
ers. See 1 Michie, Banks and Banking, p. 11.
For provisions in the prior law regulating private banks
together with the words they may use in connection with
their name, see §§ 2287, 2311 of the Code of 1910, see also
the acts of 1897, p. 59, and 1898, p. 72.
§ 2366(5). Insolvency defined.— A bank shall
be deemed to be insolvent, first, when it can not
meet its liabilities as they become due in the reg-
ular course of business; second, when the actual
cash market value of its assets is insufficient to
pay its liabilities to depositors and other creditors;
third, when its reserve shall fall under the amount
herein required and it shall fail to make good such
reserve within thirty (30) days after being required
to do so by the Superintendent of Banks. Acts
1919, pp. 135, 138.
Editor's Note. — The first part of this definition is the
general definition of insolvency. See 2 Bouvier's p. 1602
(third ed.) ; the second part is very similar to the defini-
tion of insolvency given in the national bankruptcy act of
1898 § 1; while the third part of this definition is original
with this section.
§ 2366(6). Surplus and undivided profits de-
fined.— The term "surplus" as used in this act
means the portion or portions of the "undivided
profits" which have been formally set apart by res-
olution of the board of directors and carried to
surplus account on the books of account of the
bank, as well as such amount as may be paid in by
stockholders for the purpose of creating a surplus.
The term "undivided profits" as used in this act
means the net profits as shown by the books of ac-
count of the bank, in addition to the "surplus," less
such amount as may be held for the payment of
current expenses, taxes, interest on savings de-
posits and dividends to stockholders. Acts 1919,
pp. 135, 138.
See § 2277 of the Code of 1910 for another definition of
"surplus."
SECTION 2.
Department of Banking.
§ 2366(7). Department of banking created. —
There is hereby created a Banking Department of
the State of Georgia to be designated as the "De-
partment of Banking," charged with the execution
of all laws heretofore passed or which may here-
after be passed relating to banks as herein defined.
Acts 1919, pp. 135, 138.
Editor's Note. — Prior to this act the enforcement of
banking laws was under the State Treasury Department
and was known as the Bank Bureau. See § 2279 of the
Code of 1910.
§ 2366(8). Superintendent of Banks. — The chief
officer of the Department of Banking shall be
known as the Superintendent of Banks. He shall
be appointed by the Governor, by and with the
advice and consent of the Senate. The first ap-
pointment hereunder shall be made at least ten
days before this Act takes effect, and the appointee
shall discharge the duties of the office pending con-
firmation by the Senate.
The Superintendent of Banks shall hold office
for the term of four years, and until his successor
is appointed and qualified. Acts 1919, pp. 135, 138.
Editor's Note The state treasurer was the official state
banking examiner under the former Bank Bureau Law, see
§ 2280 of the Code of 1910.
[537]
§ 2366(9)
DEPARTMENT OF BANKING
§ 2366(16)
§ 2366(9). Vacancies, how filled. — In the event
there shall be a vacancy in the office when the Sen-
ate is not in session, caused by death, resignation,
disability, suspension or removal of the Superin-
tendent of Banks, the Assistant Superintendent
shall act, holding the office until the Senate con-
venes and a successor to the Superintendent of
Banks is appointed and qualified. When the As-
sistant Superintendent shall hold the office of
Superintendent, as herein provided, he shall re-
ceive the same salary, and give the same bond as
herein provided for the Superintendent of Banks.
Acts 1919, pp. 135, 139.
§ |2366(10). Qualifications of superintendent. —
The Superintendent of Banks shall be a man of
good character and shall have had at least five
years active experience in the banking business.
He shall not during his term of office be an officer
or employee of any bank, or either directly or indi-
rectly interested in any bank, and shall not carry
on business as a private banker or be an employee
of or interested directly or indirectly in the busi-
ness of any private banker. He shall not be or be-
come indebted directly or indirectly to any bank
as herein defined. The Governor shall immediately
remove from office any Superintendent of Banks
violating the provisions of this section. Acts 3 919,
pp. 135, 139.
Editor's Note. — The only special qualifications for the
performance of the duties required of the State Treasurer
under the prior law was that neither he nor his assistant
should be an officer or stockholder of any bank or firm do-
ing a banking business or be engaged individually in
banking in this state or elsewhere. See § 2285 of the
Code of 1910.
§ 2366(11). Salary of superintendent. — The
Superintendent of Banks shall receive a salary of
Six Thousand ($6,000.00) Dollars per annum, to
be paid in the same manner as the other expenses
of the Department of Banking are paid. He shall
receive no fees or perquisites for any official act,
but the fees prescribed herein shall be collected by
him and deposited to the credit of the Department
of Banking, as hereinafter provided. Acts 1919,
pp. 135, 139.
§ 2366(12). Oath and bond of superintendent
Before entering upon the duties of his office, the
Superintendent of Banks shall, take an oath before
the Governor or one of the Justices of the Su-
preme Court to support the Constitution of the
United States and the Constitution of the State of
Georgia, and faithfully to execute the duties of his
office, which oath shall be in writing and sub-
scribed to by the Superintendent of Bank? and filed
of record in the Executive Office. He shall also
give bond to the State of Georgia with security or
securities approved by the Governor in the sum of
Fifty Thousand ($50,000.00) Dollars, conditioned
as follows:
(1) That he will faithfully discharge, execute,
and perform, all and singular, the duties required
of him, and which may be required by the Consti-
tution and Laws.
(2) That he will faithfully account for all moneys
that may be received by him from time to time by
virtue of his office.
(3) That he will safely deliver to his successors
all books, moneys, vouchers, accounts, and effects
whatever belonging to said office.
The surety on the bond shall be a regular incor-
porated surety company or companies, qualified
to do business in the State of Georgia, and the pre-
mium on the bond shall be paid as other expenses
of the Department of Banking are paid. Acts 1919,
pp. 135, 139.
For the oath required of the treasurer under the old law,
see § 2281.
§ 2366(13). Superintendent, how removed. — The
superintendent of Banks may be suspended or re-
moved by the Governor, whenever the Gover-
nor has trustworthy information, to be judged of by
him, that the Superintendent is insane or has ab-
sconded or grossly neglects his duties or is guilty
of conduct plainly violative of his duties. Acts 1919,
pp. 135, 140.
§ 2366(14). Superintendent's office. — The Super-
intendent of Banks shall be provided with suitable
apartments at the State capitol, furnished at the
State's expense; he shall keep his office open daily,
Sundays and holidays excepted. He shall be fur-
nished from time to time necessary equipment,
furniture, fuel, light and other proper conveniences
for the transaction of the business of his office, the
expense of which shall be paid by the State in the
same manner as the expenses of other officers at
the Capitol are paid. The reference in this Section
to the Residence of the Superintendent, shall be
construed to mean and relate to his official resi-
dence only. Acts 1919, pp. 135, 140; 1920, p. 102;
1925, pp. 119, 122.
Editor's Note. — This section was amended both in 1920
and 1925. The amendment of 1920 added "equipment" to
the list of things furnished the superintendent.
The 1925 amendment struck the provision "he shall reside
at the capital" from the beginning of the first part of the
second sentence and purported to add "and no court of
the state other than the superior court of Fulton County
shall have or take jurisdiction in any suit or proceeding
brought or instituted against the superintendent except
as is otherwise provided in this act." However, when the
section was repeated in the act, in its amended form the
proper words were stricken, but no insertion was made re-
garding the bringing of suits as quoted above. By the
same act the last sentence now appearing in the section
was added, no reference having been made to it in the
amending clause. It will be noticed that the section as
amended makes no reference to the residence of the
superintendent.
Venue of Equity Suits. — The residence of the superin-
tendent of banks is fixed by law at the State Capitol.
Suits in equity must be brought in the county of the resi-
dence of a defendant against whom substantial relief is
prayed. See § 6540. Sayer v. Bennett, 159 Ga. 369, 125 S-
E. 855.
Cited in Bennett v. Simmons, 30 Ga. App. 529, 532, 118
S. E. 493. See notes of this case under § 2366 (51).
§ 2366(15). Seal of department of banking.—
The Secretary of State shall provide the Superin-
tendent of Banks with an official seal. Any paper
executed by him as such Superintendent of Banks
in pursuance of any authority conferred on him by
law and sealed with his seal of office shall be re-
ceived in evidence with the same effect as a duly
recorded deed. Acts 1919, pp. 135, 141.
Editor's Note. — There was no seal for the bank bureau
prior to the enactment of this- section.
§ 2366(16). Assistant superintendent, examiners,
and clerks. — The Superintendent of Banks shall
appoint from time to time, with the right to dis-
charge at will, an Assistant Superintendent who
[ 538
§ 2366(17)
DEPARTMENT OF BANKING
§ 2366(22)
shall be ex-officio an Examiner, and such addi-
tional Examiners and office assistants as he may
need to discharge in a proper manner the duties
imposed upon him by law, provided that such ap-
pointments shall not extend beyond the term of of-
fice of the Superintendent of Banks making such
appointments.
No person so appointed shall during his term of
office be an officer or employee of any bank, or
either directly or indirectly interested in any bank.
He shall not carry on business as a private banker
or be an employee of or interested in the business
of any private banker. He shall not be or become
indebted directly or indirectly to any bank as here-
in defined. The Superintendent of Banks shall
immediately remove from office any Assistant
Superintendent, Examiner, or Office Assistant
violating the provisions of the section.
The Assistant Superintendent, Examiners and
Clerks shall perform such duties as may be as-
signed to them, respectively, by the Superintend-
ent of Banks. Acts 1919, pp. 135, 141.
See notes to § 2366 (51).
Editor's Note. — The power given the superintencfent in
this section to appoint his assistants is similar to the
power of the state treasurer under the prior law. See §
2282 of the Code of 1910.
§ 2366(17). Oath and bond of assistant superin-
tendent and examiners. — The Assistant Superin-
tendent and each of the Examiners shall take the
same oath as that herein prescribed for the Super-
intendent of Banks, and each shall give a bond to
be approved by the Superintendent, with a regular
incorporated surety company qualified to do busi-
ness in the State of Georgia, as security, payable
to the State of Georgia, in the penal sum of Ten
Thousand ($10,000.00) Dollars, with the same con-
ditions contained in the bond as those herein pre-
scribed for the Superintendent of Banks, the pre-
mium on which said bonds shall be paid as other
expenses of the Department of Banking are paid.
Acts 1919, pp. 135, 141.
For a similar provision of the prior law, see § 2383 of the
Code of 1910.
§ 2366(18). Salaries of assistant superintend-
ents, examiners and clerks. — The Assistant Super-
intendent shall be paid a salary of Thirty-six
Hundred ($3,600.00) Dollars per annum.
Each of the Examiners shall be paid a salary of
not exceeding Twenty-four Hundred ($2,400.00)
Dollars per annum.
The salaries of the Clerks and Office Assistants
shall be fixed by the Superintendent of Banks.
Acts 1919, pp. 135, 142; 1920, pp. 102, 103; 1922, p.
63.
Editor's Note. — This section has been twice amended
since its adoption in 1919. By the acts of 1920, the maxi-
mum which clerks and office assistants might receive was
raised from $3,600 to $5,000. By the acts of 1922 these
salaries are to be fixed by the superintendent of Banks.
For similar provisions in the prior law, see §§ 2283 and
2284 of the code of 1910, and the acts of 1911 p. 198, and 1914
p. 74.
§ 2316(19). Traveling expenses.— .The traveling
expenses of the Superintendent of Banks, the
Assistant Superintendent, and the Examiners,
actually paid in the discharge of their duties, shall
be audited and approved by the Superintendent of
Banks, and paid monthly as other expenses of the
Department of Banking are paid. Itemized state-
ments shall be kept by the Superintendent and
Examiners, showing in detail their expenses and
each and every item thereof, in such form and ac-
companied by such vouchers as the Superintendent
shall prescribe, which statements shall be filed in
the office of the Superintendent. Acts 1919, pp.
135, 142.
§ 2366(20). Expenses of the department of
banking, how paid.— All the expenses incurred in
and about the conduct of the business of the De-
partment of Banking, including the salaries of the
Superintendent of Banks, the Assistant Superin-
tendent, the Examiners, and Office Assistants, and
the traveling expenses incurred in examining
banks, except the office expenses including print-
ing, postage, stationery and office supplies, tele-
phone and telegraph tolls, provided for in Section
2366(14), shall be collected from the banks as here-
inafter provided. All amounts so paid shall be de-
posited by the Superintendent of Banks in such
bank or banks as he may see fit and subject to his
check as such Superintendent, and shall be used
for the expenses of the Department of Banking
only. Acts 1919, pp. 135, 142; 1920, pp. 102, 103.
Editor's Note. — The amendment of 1920 added the pro-
vision ''including printing, postal, stationery, and office
supplies, telephone and telegraph," showing what office ex-
penses are accepted.
§ 2366(21). Report of the superintendent of
banks. — The Superintendent of Banks shall make
an annual report to the Governor on or before the
31st day of December, which report shall be filed
in his office, and by him laid before the General
Assembly in connection with his first annual mes-
sage thereafter. Acts 1919, pp. 135, 142.
This section is very similar to § 2294 of the code of
1910.
§ 2366(22). Contents of the Report. — The
Superintendent of Banks shall set forth in his
annual report:
1. A list of all the banks subject to his supervi-
sion, with the date when each began business.
2. A summary of the condition of every bank, as
shown by the last report received in response to
call, and such other information in relation to said
bank as in his judgment may be useful.
3. A statement of all applications for incorpora-
tion of new banks and all applications for the
amendment, renewal, and surrender of charters,
together with his action thereon.
4. A statement of all banks whose business has
been closed during the year.
5. A list of all banks taken possession of by him
during the year, and of the dividends paid to cred-
itors of all banks being liquidated, and of the un-
claimed and unpaid deposits or dividends of each
of such banks.
6. Any suggestion for amendments to the laws
relating to banking by which the system may be
improved and the security to the depositors and
other creditors increased.
7. The names and compensation of his Assist-
ant, Examiners, and Clerks, and the whole amount
of the expenses of the banking department during
the year.
8. An itemized statement of the amounts col-
lected from the banks from examinations, fines,
539 ]
§ 2366(23)
EXAMINATIONS OF BANKS
§ 2366(30)
and forfeitures during the year. Acts 1919, pp. 135,
143; 1922, p. 65.
Editor's Note. — The words "such condition as shown by
the last examination made" which were appeared between
the words "call" and "and" were stricken from the second
subdivision of this section by the act of 1922. This sec-
tion is very similar to § 2296 of the Code of 1910.
§ 2366(23). Copies of report furnished to banks.
— The annual report of the Superintendent of
Banks shall be published in book form, and a copy-
thereof furnished to each bank by mail as soon as
the same shall have been published and transmitted
to the Governor, provided that the superintendent
may in his discretion omit from the published
volume subsections 4, 5 and 6 of § 2366(22). Acts
1919, pp. 135, 143; 1920, pp. 102, 104; 1925, pp. 119,
123.
Editor's Note. — This section is very similar to § 2297 of
the Code of 1910. The 1920 amendment struck the pro-
visions for the expenses of publishing and mailing to be
paid as other expenses. The 1925 amendment added the
proviso at the end of this section.
§ 2366(24). Rules for the department of bank-
ing.— The Superintendent of Banks shall make
such rules and regulations to carry out the provi-
sions of this Act as he may consider of value to the
Department of Banking. He may appoint special
Examiners, when occasion requires, prescribe their
duties, and limit their powers. He shall prescribe
and provide forms, and supply the necessary
blanks for examinations and reports. Acts 1919,
pp. 135, 144.
This section is very simular to §§ 2298 and 2310 of the
Code of 1910.
§ 2366(25). Reports and examinations. — The
reports of all examinations and the reports made
by banks in response to the calls made by the
Superintendent of Banks shall be regularly filed
and preserved by the Superintendent of Banks in
his office for a period of five (5) years, after which
time the Superintendent shall be authorized to
burn the same. Acts 1919, pp. 135, 144.
This section is very similar to § 2312 of the Code of 1910.
§ 2366(26). Reports as evidence. — Every official
report made by the Superintendent of Banks and
every sworn report, duly verified, of any regular
or special Examiner duly appointed by the Super-
intendent of Banks, shall be prima facie evidence
of the facts therein stated, in any action or pro-
ceeding wherein such bank is a party, provided
that the reports of such examinations shall not be
made public except when required in legal proceed-
ings. The expense of furnishing certified copies of
records and reports by the Superintendent of
Banks shall be paid by the person applying for
such certified copies before such copies are de-
livered, except where such copies are called for on
behalf of the State. Acts 1919, pp. 135, 144; 1920,
pp. 102, 104.
See note under § 2366 (39).
Editor's Note.— The amendment of 1920 added the last
sentence to this section. It will be noticed that the
amending clause as set out in the reported act used the
word "striking" when undoubtedly "adding" was meant.
This, however, will probably be considered as a valid
amendment, see note of McGregor v. Clark, 155 Ga. 377, 116
S. E- 823, under § 120 (2) of this code, where a similar
situation was considered.
§ 2366(27). Liability for non-performance of
duty. — The Superintendent of Banks, the Assist-
ant Superintendent, and the Examiners shall be
liable on their official bonds to any person, firm,
or corporation injured on account of the failure of
the Superintendent, the Assistant Superintendent,
or any Examiner, to faithfully discharge the duties
of his office. Suit may be brought thereon in any
court of competent jurisdiction in the name of the
State for the use of the injured party. Acts 1919,.
pp. 135, 144.
§ 2366(28). Solicitors-general to represent sup-
erintendent. — The Solicitors- General, in their
several circuits, when requested by the Superin-
tendent of Banks, shall, as a part of their official
duties, represent the Superintendent of Banks in
any suit that the Superintendent may desire to
bring, or that may be brought against the Superin-
tendent under the provisions of this Act, in regard
to banks in their respective circuits. The fees of
the Solicitors-General for services rendered under
this section shall be fixed by the Superintendent
subject to the approval of the judge of the Superior
Courts of the circuit in which such suits are
brought. Such fees and the costs of any such
suits or proceedings by or against the Superintend-
ent of Banks shall be taxed by the judge of the
Superior Court in which such suit is brought
either against the opposite party to such suit, or
against the bank concerning which the suit is
brought, or against the Superintendent, in which
latter event such costs and fees shall be paid as
other expenses of the Department of Banking are
paid. Acts 1919, pp. 135, 144.
See the constitution, § 6531 of this Code, requiring" the
solicitor-general to represent the state in all cases in the
superior court of his circuit.
§ 2366(29). Attorney general and solicitors-
general to advise superintendent. — It shall be the
duty of the Attorney General to advise the Super-
intendent of Banks on any question of law sub-
mitted to him by the Superintendent, and it shall
likewise be the duty of the Solicitors-General, in
their several circuits, when requested by the Sup-
erintendent of Banks, to advise the Superintendent
on any questions of law submitted to them by the
Superintendent in regard to any existing or pro-
posed banks in their respective circuits. Acts 1919,
pp. 135, 145.
See the constitution, § 6529, and § 254 of this code, making
it the duty of the attorney- general to advise the executive
departments.
SECTION 3.
Examinations of Banks.
§ 2366(30). Semi-annual examinations. — The
Superintendent of Banks shall either personally or
by one' of the Examiners visit and examine every
bank subject to his supervision at least twice in
each year. On every examination, inquiry shall be
made as to the condition and resources of the bank,
the mode of conducting and managing its affiairs,
the manner of keeping its accounts and the correct-
ness thereof, the actions of its directors, the invest-
ment of its funds, the safety and prudence of its
management, and whether the requirements of its
charter and the law have been complied with in the
administration of its affairs, and as to such other
[540]
§ 2366(31)
EXAMINATIONS OF BANKS
§ 2366(34)
matters covered by this Act as the Superintendent
of Banks may prescribe. Acts 1919, pp. 135, 145.
Editor's Note This section is very similar to § 2299 of
the Code of 1910. See also the act of 1889, p. 65, which re-
quired the state treasurer to make an examination of each
bank twice in each year, which was the first Georgia law
requiring the examination of banks.
§ 2366(31). Special examinations. — In addition
to the regular semi-annual examinations the Sup-
erintendent of Banks shall have power and it shall
be his duty in like manner to examine or cause to
be examined any bank under his supervision when-
ever in the judgment of the Superintendent of
Banks the management and condition of the bank
is such as to render an examination of its affairs
necessary or expedient, or whenever in the opinion
•of the Superintendent of Banks the interests of the
public demand an examination. Acts 1919, pp. 135,
146.
See § 2299 of the Code of 1910, and kindred provisions of
the old law.
§ 2366(32). Examinations on oath. — The Super-
intendent of Banks and the Examiners shall have
power and authority to administer oaths and to
examine under oath any person whose testimony
may be required on the examination of any bank,
and shall have the authority and power to compel
the appearance and attendance of any such person
for the purpose, of such examination.
If any person when required so to do by the
Superintendent of Banks, or any one of the Ex-
aminers, shall fail or refuse to appear or to testify
under oath as herein provided, such failure or re-
fusal may be reported in writing to the Judge of
the Superior Court of the county in which such
"bank is located, who shall thereupon cause a sub-
poena to be issued by the clerk of said court requir-
ing such person to so attend and testify, and for
failure to obey such subpoena the person so failing
shall be adjudged in contempt of court by the judge
-of said court and punished accordingly. Acts 1919,
pp. 135, 146.
See § 2299 of the Code of 1910, and kindred provisions of
the old law.
§ 2366(33). Written report of examination. —
The Superintendent of Banks and the Examiner
who shall make an examination of any bank shall
reduce the result thereof to writing in such form as
shall be prescribed by the Superintendent, which
shall contain a full, true, and correct statement of
the condition of such bank so examined, which re-
ports shall be filed in the Department of Banking.
Acts 1919, pp. 135, 146.
For a similar provision in the old law, see § 2299 of the
Code of 1910.
§ 2366(34). Fees for examination. — Each bank
shall pay for each semi-annual examination to the
'Superintendent of Banks, to be deposited by him
to the credit of the Department of Banking, as
hereinbefore provided, in proportion to its total
resources or assets, exclusive of branches, not ex-
ceeding the following amounts:
Where the total resources are $150,000.00, or less,
$20.00;
Where the total resources are more than $150,-
000.00 and not exceeding $200,000.00, $30.00;
Where the total resources are more than $200,-
000.00 and not exceeding $300,000.00, $40.00;
[5
Where the total resources are more than $300,-
000.00 and not exceeding $400,000.00, $50.00;
Where the total resources are more than $400,-
000.00 and not exceeding $500,000.00, $60.00;
Where the total resources are more than $500,-
000.00 and not exceeding $600,000.00, $75.00;
Where the total resources are more than $600,-
000.00 and not exceeding $700,000.00, $85.00;
Where the total resources are more than $700,-
000.00 and not exceeding $800,000.00, $100.00;
Where the total resources are more than $800,-
000.00 and not exceeding $900,000.00, $110.00;
Where the total resources are more than $900,-
000.00 and not exceeding $1,000,000.00, $120.00;
Where the total resources are more than $1,000,-
000.00 and not exceeding $1,200,000.00, $140.00;
Where the total resources are more than $1,200,-
000.00 and not exceeding $1,400,000.00, $150.00;
Where the total resources are more than $1,400,-
000.00 and not exceeding $1,600,000.00, $170.00;
Where the total resources are more than $1,600,-
000.00 and not exceeding $1,800,000.00 $190.00;
Where the total resources are more than $1,800,-
000.00 and not exceeding $2,000,000.00, $210.00;
Where the total resources are more than $2,000,-
000.00 and not exceeding $2,250,000.00, $250.00;
Where the total resources are more than $2,250,-
000.00 and not exceeding $2,500,000.00 $275.00;
Where the total resources are more than $2,500,-
000.00 and not exceeding $2,750,000.00, $300.00;
Where the total resources are more than $2,750.-
000.00 and not exceeding $3,000,000.00, $325.00;
Where the total resources are more than $3,000,-
000.00 and not exceeding $3,500,000.00, $340.00;
Where the total resources are more than $3,500,-
000.00 and not exceeding $4,000,000.00, $360.00;
Where the total resources are more than $4,000,-
000.00 and not exceeding $4,500,000.00, $380.00;
Where the total resources are more than $4,500,-
000.00 and not exceeding $5,000,000.00, $400.00;
Where the total resources are more than $5,000,-
000.00 and not exceeding $6,000,000.00, $425.00;
Where the total resources are more than $6,000,-
000.00 and not exceeding $7,000,000.00, $450.00;
Where the total resources are more than $7,000,-
000.00 and not exceeding $8,000,000.00, $475.00;
Where the total resources are more than $8,000,-
000.00 and not exceeding $10,000,000.00, $500.00;
Where the total resources are more than $10,-
000,000.00 and not exceeding $12,500,000.00, $525.00:
Where the total resources are more than $12,500,-
000.00 and not exceeding $15,000,000.00, $550.00;
Where the total resources are more than $15,-
000,000.00 and not exceeding $17,500,000.00, $575.00;
Where the total resources are more than $17,500,-
000.00 and not exceeding $20,000,000.00, $600.00;
Where the total resources are more than $20,000.-
000.00 and not exceeding $25,000,000.00, $625.00;
Where the total resources are more than $25,000,-
000.00 and not exceeding $30,000,000.00, $650.00;
Where the total resources are more than $30,000.-
000.00 and not exceeding $35,000,000.00, $700.00;
Where the total resources are more than $35,000,-
000.00 and not exceeding $40,000,000.00, $750.00;
Where the total resources are more than $40,000.-
000.00, $800.00.
The word "resources," as used in this Section,
shall be deemed to mean the total resources or
11]
§ 2366(35)
REPORTS OF BANKS
§ 2366(40)
assets of the bank examined as of the date of such
examination.
In addition to the fees hereinabove fixed, each
bank operating branch offices or banks shall pay
for each bank so operated for each semi-annual
examination at the above rates based on the total
resources of such branch.
For any examination herein provided to be made
before permit to begin business is issued, or on any
amendments to a charter, or on any consolidation
or merger, or on any voluntary liquidation, and in
all other cases of like character, other than regular
semi-annual examinations, a fee of $25.00 per day
for each examiner participating in such examina-
tion shall be paid for each examination. Acts 1925,
pp. 119, 123.
Editor's Note. — The corresponding section of the act of
1919 was stricken by the act of 1925 and this section in-
serted in liau thereof.
The substituted section is very similar to the old section
except that the amount was based in the old act upon the
capital, surplus and undivided profits, the schedule of rates
have been changed; the third paragraph from the end, de-
fining "resources" added; the second paragraph from the
end being changed from capital, surplus and undivided prof-
its to total resources; and the last paragraph changed so
that the fee of $25.00 is now paid for each examiner rather
than for the entire examination.
For the rates charged under the old law, see § 2300 of
the Code of 1910.
§ 2366(35). Fees, how collected.— In the event
any bank should fail or refuse to pay on demand
the amount herein fixed as fees for examinations,
the Superintendent of Banks shall forthwith issue
an execution in the name of the State against such
bank for the amount of such fees, which shall be
enforced in like manner as executions issued by the
Superior Courts in the State upon judgments ren-
dered by them. Acts 1919, pp. 135, 148.
§ 2366(36). Record of Fees.— It shall be the
duty of the Superintendent of Banks to keep a rec-
ord of all fees collected by him, together with a
record of expenses incurred in making examina-
tions of all banks, which record shall be embodied
in his annual report to the Governor. Acts 1919, pp.
135, 148.
This section is very similar to § 2308 of the Code of 1910.
§ 2366(37). Examinations not at stated times, —
The Superintendent of Banks shall not visit any
bank or cause same to be visited by an Examiner
for the purpose of examination at stated or regular
times, nor shall the Superintendent or any Exam-
iner permit any one to know when or at what
time he will visit any bank or cause same to be
visited, for examination. Acts 1919, pp. 135, 148.
§ 2366(38). Information kept secret.— The in-
formation which shall be obtained by the Superin-
tendent of Banks or any Examiner in making ex-
aminations into the affairs of any bank shall be for
the purpose of ascertaining the true condition of
said bank, and shall not be disclosed by the person
making the examination, unless called upon to
testify concerning the same in a court of justice,
except that reports shall be made of the condition
of the affairs of the bank ascertained from such
examination to the officers and directors of the
bank examined and to the Superintendent of
Banks, and a summary thereof published in the
Superintendent's annual report, and except that
the Superintendent may take action as the result of
such examination, as herein provided. Provided,
however, that upon the request of the Federal Re-
serve Bank the Superintendent shall be authorized
to furnish to said bank a copy of the report and
other information concerning the condition and
affairs of any bank which shall be a member of the
Federal Reserve System; and provided further,
that the Superintendent of Banks may in his dis-
cretion confer and exchange information with the
Comptroller of the Currency of the United States
and the National Bank Examiners, and may when
he shall deem it to be for the interest of the bank
in question discuss its affairs with other banks or
persons interested therein or affected thereby. Acts
1919, pp. 135, 148; 1920, pp. 102, 105.
Editor's Note. — The last proviso in this section was ad-
ded by the act of 1920.
The first proviso was probably enacted for the purpose
of allowing the Federal Reserve Bank to accept examina-
tion made by state authorities of banks which are mem-
bers of the Federal Reserve System in the place of exami-
nations made by Federal examiners, as provided by the
1917 act of Congress.
§ 2366(39). Reports as evidence. — In the event
the Superintendent of Banks takes charge of the
business and affairs of any bank as herein author-
ized, or in the event proceedings are instituted to
forfeit the charter of any bank, duly authenticated
copies of the reports of the examination of such
bank on file in the office of the Superintendent of
Banks may be used in any court as evidence and as
an aid in arriving at the true condition of the bank.
Such reports shall be received in any court as
prima facie evidence of the truth of their contents.
Acts 1919, pp. 135, 149.
Witness Not Introduced in Trial. — A transcript of the
testimony taken under the authority of the superintendent
of banks in some inquiry within his department, from a
witness who was not introduced in the trial of the present
controversy, and was not a party thereto, was not ad-
missible in evidence under any of the provisions of this
act, providing among other things that reports of the
superintendent of banks and certain reports of banks made
to him may, for some purposes, be admissible in evidence.
Bank v. Hall, 33 Ga. App. 358, 126 S. F. 728. See § 2366.
(26).
SECTION 4.
Reports of Banks.
§ 2366(40). Stated reports.— Every bank shall
make at least four (4) reports each year, and
oftener if called upon by the Superintendent of
Banks, according to the form which may be pre-
scribed by him, verified as true and correct by the
oath or affirmation of the president or cashier, and
accompanied by the certificate of at least two (2)
of the directors of such bank to the effect that they
have carefully read said report and that the. same is
true and correct according to the best of their in-
formation, knowledge and belief, and that the
signature of the president or cashier, is the true-
and genuine signature of such officer. Such report
shall exhibit in detail and under appropriate heads
the resources and liabilities of such bank at the
close of business on any past date specified by the
Superintendent of Banks, and shall be transmitted
to the Superintendent of Banks within ten (10)
days after date of a request therefor from him, and
shall be published in such form as the Superintend-
ent of Banks may prescribe, within ten (10) days
after the same is called for, in a newspaper pub-
[542]
§ 2366(41)
IMPAIRMENT OF CAPITAL
§ 2366(48)
lished in the city or town where such bank is
located, or if no newspaper is published in such
city or town, then in the county in which such
bank is located, and if no newspaper is published
in the county, then in some newspaper having a
general circulation in the county, such publication
to be at the expense of the bank, and proof that
such publication has been made, in such form as
may be required by the Superintendent of Banks,
shall be furnished to him within five (5) days after
such publication is made. Acts 1919, pp. 135, 149;
1920, pp. 102, 105.
Editor's Note. — The amendment of 1920 changed the
provision requiring the report to be transmitted to the
superintendent ten days after "receipt" thereof to ten days
after "date."
This section is very similar to § 2288 of the Code of 1910.
§ 2366(41). Special reports. — The Superintend-
ent of Banks shall have power to call for special
reports from any bank, whenever in his judgment
the same are necessary in order to obtain a full and
complete knowledge of its condition. Such reports
shall be made on forms furnished by the Superin-
tendent of Banks, and shall be verified and certified
as herein provided in the case of stated reports.
Acts 1919, pp. 135, 150.
This section is similar to provisions of § 2288 of the Code
of 1910.
§ 2366(42). Call for reports mailed to banks. —
A copy of each call made by the Superintendent
of Banks for a report from the banks under the
supervision of said Superintendent shall be mailed
to each bank, and such mailing shall be deemed
legal notice of such call. Acts 1919, pp. 135, 150.
This section is similar to § 2309 of the Code of 1910.
§ 2366(43). Dividends to be reported. — In addi-
tion to the reports required in the preceding sec-
tions, each bank shall report to the Superintendent
of Banks within ten (10) days after declaring, and
at least ten (10) days before paying, any dividend,
the amount of such dividend and the amount of the
surplus and undivided profits in excess of such
dividend. Such report shall be verified and certified
in the same manner as is provided herein in the
case of stated reports to the Superintendent of
Banks. Acts 1919, pp. 135, 150.
§ 2366(44). Penalty for failing to report. — Any
bank which fails to make and transmit or to pub-
lish any report as required by this Act shall be
subject to a penalty of $10.00 for each day after the
periods, respectively, herein mentioned that it
delays to make and transmit its report or proof of
publication.
When any bank delays or refuses to pay the
penalty herein imposed for the failure to make and
transmit or to publish its report, the Superintend-
ent of Banks is hereby authorized to issue an exe-
cution against such bank for the amount of such
penalty, which shall be enforced in like manner as
executions issued by the Superior Courts of this
State upon judgments.
All penalties collected shall be held by the Sup-
erintendent of Banks as other funds collected and
deposited to the credit of the Department of Bank-
ing. Acts 1919, pp. 135, 150.
See § 2289 of the Code of 1910 for corresponding provisions
of the old law.
SECTION 5.
Communications from Department of
Banking.
§ 2366(45). Notice of violation of law.— If it
should appear to the Superintendent of Banks that
any bank has violated its charter or any law of the
State or any order or regulation of the Department
of Banking, he may, by an order under his hand
and official seal, addressed to such bank, direct the
discontinuance of such violation, or if it should ap-
pear to the Superintendent that any such bank is
conducting business in an unsafe or unauthorized
manner, he may in like manner direct the discon-
tinuance of such unsafe and unauthorized practices.
Such order shall be read at a meeting of the direc-
tors called for the purpose, and a copy thereof
shall be entered upon the minutes of said board,
and a majority of the board of directors, over their
own signatures, indorsed on said original order,
shall acknowledge that the same has been read at a
meeting of the board and entered upon the minutes
and said original order shall be forthwith returned
to the Superintendent of Banks. Acts 1919, pp.
135, 151.
§ 2366(46). Communications to be read and
entered on minutes. — Each official communication
directed by the Superintendent of Banks to a bank,
pertaining to an investigation or examination con-
ducted by the department, or to the affairs of such
bank, or containing orders, suggestions, or recom-
mendations as to the conduct of the business there-
of, shall be submitted, by the officer receiving it,
to the board of directors of such bank, at the next
meeting of such board, and entered on the minutes,
and written acknowledgment thereof made to the
Superintendent of Banks. Acts 1919, pp. 135, 151.
§ 2366(47). Removal of officer or employee. —
The Superintendent of Banks shall have the right
to require the immediate removal from office of any
officer or employee of any bank who shall be found
by him to be dishonest, incompetent or reckless in
the management of the affairs of the bank, or who
persistently violates the laws of the State or the
lawful orders of the Superintendent. Acts 1919, pp.
135, 152.
Employee Must Come Within Scope of Section.— This is
the only authority conferred upon the superintendent
touching the officers or employees of State banks; and it
is clear that in order to exercise this power the superin-
tendent must first find the officer or employee to be dis-.
honest, incompetent, or reckless in the management of the
affairs of the bank, or to have persistently violated the
laws of the State or the lawful orders of the superintend-
ent. It is true that § 2366 (57) provides that the superin-
tendent may permit a bank to resume business upon such
conditions as may be approved by him; but obviously, if
these conditions refer at all to officers or employees to be
retained by the bank, this section would still apply, to
wit, that he must first find the officer or employee to be
incompetent, reckless, dishonest, etc., before prescribing
such a condition. Milton v. Bank, 30 Ga. App. 55, 60, 115
S. E. 861.
SECTION 6.
Impairment of Capital.
§ 2366(48). Assessment of stockholders. —
Whenever the Superintendent of Banks shall find
that the capitol stock of any bank has become im-
paired or reduced as much as ten per cent, of its
par value from losses or any other causes, the sup-
[ 543
§ 2366(49)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(51)
erintendent of Banks shall notify and require such
bank to make good its capital stock so impaired or
reduced within sixty (60) days, by an assessment
upon the stockholders thereof, and it shall be the
duty of the officers and directors of the bank re-
ceiving such notice to immediately call a special
meeting of the stockholders for the purpose of
making an assessment upon its stockholders suffi-
cient to cover the impairment of the capital, pay-
able in eash, at which meeting such assessment
shall be made, provided that such bank may reduce
its capital to the extent of the impairment if such
reduction will not place its capital below the
amount required by this Act. At any such special
meeting of the stockholders a majority of the
stock outstanding at the time shall be deemed a
quorum, and such assessment may be made upon a
majority vote of the quorum present. Acts 1925,
pp. 119, 126.
Editor's Note.— By the act of 1925 all of the portion of
the act of 1919 dealing with impairment was repealed and
this and the following sections added in lieu thereof. By
the act of 1919 it was provided that an impairment of
capital should be made good, first by a transfer of a suffi-
cient sum from the surplus or undivided profits to the
capital stock, second, if such surplus was not sufficient,
then by an assessment on stockholders.
For the corresponding provisions of the old law see §§
3278 and 2291 of the Code of 1910.
§ 2366(49). Assessment, how enforced. — If any
stockholder should refuse or neglect to pay any
assessment which may be levied by the special
stockholders' meeting for the purpose of making
good any impairment or reduction of capital with-
in thirty (30) days after such assessment shall have
been levied, the directors of such bank shall have
the right to sell to the highest bidder, at public
outcry, for cash, a sufficient amount of the stock of
such stockholder to cover the assessment after
giving previous notice of such sale, once a week,
for two (2) weeks, in the newspaper in which the
sheriff's advertisements of the county in which the
bank is located are published. In the event said
stock is sold for less than the amount of the assess-
ment upon same and necessary costs of sale, the
bank shall have the right to sue such stockholder
for the difference between the amount of the
assessment and the proceeds of the sale. Out of the
proceeds of the sale of said stock, the directors
shall pay the necessary costs of sale and the
amount of the assessment called for thereon, and
the balance, if any, shall be paid to the person or
persons whose stock has been sold, or to the
holder of the certificate therefor upon the surren-
der of such certificate. A sale of the stock as here-
in provided shall effect an absolute cancellation of
the outstanding certificate or certificates evidenc-
ing the stock so sold, and shall make the same null
and void, and the rights of any and all stock holders
thereof shall terminate and a new certificate or
certificates, shall be issued to the purchaser or
purchasers of such stock, free from all liens, or
claims, whatsoever. The bank shall, in addition to
the right herein given to sell said stock also have
the right to sue the stockholder for the full amount
of said assessment in the event that said stock-
holder shall fail to pay the assessment so levied, in
lieu of the sale of such stock and at the option of
the bank. Acts 1925, pp. 119, 126.
See the editor's note under the preceding section. There
provision of the act of 1919 which this act
was a similar
supersedes.
§ 2366(50). Notice to pledgee.— When any stock-
holder shall have pledged or hypothecated any of
his stock and shall not pay any assessment levied
on the stock so pledged, for any reason, it shall be
his duty to give the pledgee notice, by registered
mail at least five (5) days before the ex-
piration of the time within which such assessment
may be paid, of the levy of such assessment and
the amount thereof and of the fact that he does not
expect or intend to pay the same, giving to the
pledgee the privilege of paying the amount of the
assessment should he desire to do so "for his own
protection. Acts 1295, pp. 119, 127.
See editor's note under § 2366 (48). This section is the
identical language of the last paragraph of the act of 1919,
Article 7, § 3.
§ 2366(50^). Notice to pledgee acquiring title.
— When any stockholder shall have pledged or
hypothecated his stock, and the title thereto by
reason of insolvency or other legal process, has
been acquired by the pledgee, the bank shall have
the right to notify the pledgee to cause said stock
to be transferred upon the books of the banks, and
upon failure of said stockholder to present said
stock to the bank for the purpose of having same
transferred, thereon within six months after the
receipt of such notice, then the bank shall cause the
same to be sold in the same manner as Sheriff's
sales are now held. A sale of said stock as herein
provided shall effect an absolute cancellation of
the outstanding certificate or certificates evidenc-
ing the stock so sold, and shall make the same null
and void, and the rights of the holder or holders
thereof shall terminate and a new certificate or
certificates shall be issued to the purchaser of said
stock free from all liens or claims whatsoever.
The proceeds of said sale shall be first applied to
the expenses of the bank in making said sale, and
the remainder if any, shall be paid to the pledgee.
Acts 1925, pp. 119, 128. -
See editor's note under § 2366 (48). There was no cor-
responding provision in the act of 1919.
SECTION 7.
Taking Possession of Bank by Superintendent.
§ 2366(51). Possession may be taken, when. —
Whenever it shall appear to the Superintendent of
Banks that any bank has violated its charter or any
law of the State, or any law or regulation of the
Department of Banking, or is conducting business
in an unsafe or unauthorized manner; or that its
capital is impaired more than ten per cent below
its par value and has not been made good under
the requirement of the Superintendent; or when
any bank shall refuse to submit its papers, books,
and concerns to the inspection of the Superintend-
ent, or any Examiner; or when any officer thereof
shall refuse to be examined on oath touching the
affairs, business or concerns of any such bank; or
when any bank shall suspend payment of its obli-
gations or shall fail to pay any final judgment from
which no further appellate proceedings will He
within ten (10) days after the rendition thereof; or
any other judgment within ten days after the ex-
piration of the time for entering appellate proceed-
[544]
§ 2366(52)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(54)
ings; or when from any examination made by the
Superintendent, or any Examiner, the Superintend-
ent shall have reason to conclude that any bank is
in an unsafe or unsound condition to transact the
business for which it was organized, or that it is
unsafe for it to continue business; or when any
bank shall neglect or refuse to observe any lawful
order of the Superintendent directing or requiring
the doing of any particular matter or thing re-
quired to be done by law, the Superintendent him-
self, or by a duly authorized agent, shall forthwith
take possession of all the assets and business of
such bank and retain possession thereof until such
bank shall be authorized by him to resume busi-
ness, or its affairs be liquidated as herein provided.
Acts 1919, pp. 135, 154.
Editor's Note.— Under the act of 1907, §§ 2305 and 2306
of the Code of 1910, the state treasurer could not take
charge of the bank. He was required to report to the
governor the condition of the bank when an examination
disclosed insolvency, and when so ordered by the governor
was required to take charge. He maintained possession
until an examination was concluded, and then if the bank
was in fact shown to be insolvent the governor appointed
a receiver. If a bank should refuse to allow the treasurer
access to its books, papers, etc., or interfere with the dis-
charge of his duties or refuse to be examined on oath as
to the affairs of the bank, the treasurer with the concur-
rence of the governor was authorized by § 2292 of the
Code of 1910 to institute proceedings for the appointment
of a receiver. In certain instances he could institute pro-
ceedings to forfeit ' the charter of banks, see § 2347 of the
Code of 1910.
Statutory Receiver. — When the superintendent of banks
takes possession of an insolvent bank for the purpose of
liquidating its affairs, he acts in the capacity of a statutory
receiver. Carey v. Giles, 9 Ga. 253; Bennett v. Wheatley,
154 Ga. 591, 599 (115 S. E. 83). Bennett v. Green,- 156 Ga.
572, 578, 119 S. E. 620.
Conduct of Affairs — Agents. — Although the superintendent
is not required to transfer the bank assets and affairs to
his office at the Capitol, he is not expected, under the act,
to be present at all times at the office of the bank, either
in person or by an agent clothed with his power. He may
designate an agent to perform such duties connected with
the liquidation as he himself in person could do. Bennett
v. Simmons, 30 Ga. App. 529, 532, 118 S. E. 493. See notes
of this case, under §§ 2366 (58), (61).
The circumstances of a particular case may not in his
judgment demand the appointment of such agent. He
may conclude to surrender the bank to its officers. Ben-
nett v. Simmons, 30 Ga.,529, 532, 118 S. E. 493. See notes
of this case under §§ 2366 (58), (61).
Injunction. — A court of equity will enjoin any unau-
thorized interference with the possession of the superin-
tendent of banks of the assets of an insolvent bank. Es-
pecially will injunction in such case lie when the plaintiff
also contests the justness of laborers' liens sought to be
enforced against the grantor in a security deed and the
property therein conveyed. Bennett v. Green, 156 Ga. 572,
119 S. E. 620. See § 2366 (54).
§ 2366(52). Suits, conveyance, purchase of
property, extensions and renewals. — For the pur-
pose of executing any of the powers and perform-
ing any of the duties hereby conferred upon him,
the Superintendent may, in the name of the bank,
institute, prosecute and defend any and all actions,
suits and legal proceedings, including suits against
its directors or officers, or any of them, upon any
cause of action which is vested by law in such bank
or in the stockholders or creditors thereof. He
may, in the name of the bank, execute and deliver
any and all deeds, assignments, bills of sale, trans-
fers, satisfactions, or other instruments necessary
or proper to effectuate any sale, lease, or transfer
of real or personal property, or to carry into effect
any power conferred or duty imposed upon him by
this Act or by any order of the Superior Court.
Any instrument executed pursuant to the authority
hereby given shall be as valid and effectual, for all
purposes, as though the same had been executed
by the proper officers of the bank by authority of
its board of directors. He may, when in his opin-
ion it is necessary, in order to fully protect and
benefit the said bank and its creditors to the extent
of any and all equities which said bank may have
in any property, real or personal, by reason of any
mortgage, assignment, security deed, or other
proper legal claim attaching thereto, buy in said
property or pay off such secured claim, and it is
hereby authorized and empowered to use any of
the funds of said bank for that purpose to the
extent the same may be necessary or required. He
may, in the name of said bank, when in his judg-
ment it is for the best interest of the said bank and
its creditors, renew or extend for limited periods,
any of the notes or other bills receivable of said
bank. Acts 1922, p. 65.
Editor's Note. — This section is new with the act of 1922.
Prior to this amendment it was held that the superintend-
ent might sue on claims due the bank whether in his own
name or in the name of the bank. See Sessions v. Ben-
nett, 155 Ga. 193, 196, 116 S. E. 300, and see note under
§ 2366 (58). This section seems to modify the holding.
Retroactive Effect. — Under the act of 1922, this section,
the superintendent of banks has authority to bring suit
and collect moneys and administer the affairs of an in-
solvent bank, although the act was passed after the super-
intendent of banks took possession of the insolvent bank.
Garrison v. Marietta Trust, etc., Co., 155 Ga. 562, 118 S.
E. 48.
Actions Against Stockholders. — By the act of 1922, this
section, the superintendent of banks may, in the name of
the bank, institute an action against the stockholders of
the bank, to recover the liability of shareholders to deposi-
tors. Anderson v. Bennett, 160 Ga. 517, 518, 128 S. E. 660.
This section was applied, and amendment of petition and
necessity of setting out depositors considered, in Anderson
v. Bennett, 160 Ga. 517, 128 S. E- 660.
§ 2366(53). Directors may surrender possession.
— Any bank may place its assets and business un-
der the control of the Superintendent of Banks by
posting a notice on the front door of such bank in-
dicating that the bank is in the hands of the Sup-
erintendent of Banks, which notice shall be signed
in their own handwriting by a majority of the di-
rectors of such bank. Acts 1919, pp. 135, 155.
This section is similar to § 2290 of the Code of 1910.
§ 2366(54). Effect of notice or possession. — The
posting of such notice by the directors, or the tak-
ing possession of any bank by the Superintendent
of Banks, shall be sufficient to place all assets and
property of such bank, of whatever nature, in pos-
session of the Superintendent of Banks, and shall
operate as a bar to any attachment or any other
legal proceedings against such bank or its assets;
and no lien shall be acquired in any manner bind-
ing or affecting any of the assets of such bank after
the posting of such notice or taking possession of
any bank by the Superintendent, and every trans-
fer or' assignment by such bank or its authority, of
the whole or any part of its assets, after the post-
ing of such notice or the taking possession of such
bank, shall be null and void. Acts 1919, pp. 135, 155.
As to enjoining interference with superintendent, see note
to § 3366 (51).
Editor's Note.— The first part of this section is similar
to a part of § 2290 of the Code of 1910. A comparison will
show that the provision relating to transfer or assignment
of assets is new.
Purpose. — "The purpose of this provision of this act 'is
to protect the possession of the assets of the bank by the
Ga. Code— 18
[515]
§ 2366(55)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(59)
superintendent from interference by any legal proceedings,
such as one for receivership, by levy of process upon such
assets, or any proceedings by which the possession of the
superintendent would be disturbed.' Berrien County Bank
v. Alexander, 154 Ga. 775 (115 S. E. 648)." Bennett v.
Green, 156 Ga. 572, 578, 119 S. E. 620.
Suit When Superintendent Rejects Claim. — But where a
claim against a bank, which has been taken over by the
State superintendent of banks, has been rejected by him,
when presented to him for payment, under this section,
the claimant must bring suit against the bank to establish
the justice of such claims, and not against the superin-
tendent of banks. Berrien County Bank v. Alexander, 154
Ga. 775, 115 S. E. 648.
This section must be construed in connection with §
2366 (66) which relates to rejection of claims. Berrien
County Bank v. Alexander, 154 Ga. 775, 115 S. E- 648.
"Any Other Legal Proceedings." — For further construc-
tion of the language "any other legal proceedings against
such bank or its. assets," see Berrien County Bank v.
Alexander, 154 Ga. 775, 115 S. E- 648; S. C, 29 Ga. App. 658,
116 S. E. 231.
§ 2366(55). No assignment for creditors per-
mitted.— No bank shall be authorized or permitted
to make any general assignment for the benefit of
its creditors, save and except by surrendering pos-
session of its assets to the Superintendent of Banks
as herein provided. Acts 1919, pp. 135, 155.
Editor's Note.— Section 2358 of the Code of 1910 permit-
ted an assignment for the benefit of creditors on a sur-
render of the charter of the bank.
§ 2366(56). Notice of taking possession. — On
taking possession of the assets and business of any
bank, as in this Act authorized, the Superintend-
ent of Banks shall forthwith give notice of such
action to all banks and other persons or corpora-
tions holding or in possession of any assets of such
bank. No bank or other person or corporation
shall have a lien or charge for any payment, ad-
vance, or clearance thereafter made, or liability
thereafter incurred, against any of the assets of the
bank, of whose assets and business the Superin-
tendent shall have taken possession as aforesaid.
Acts 1919, pp. 135, 155.
§ 2366(57). Business resumed, how. — After the
Superintendent of Banks has so taken possession
of any bank, the Superintendent may permit such
bank to resume business upon such conditions as
may be approved by him. Acts 1919, pp. 135, 156.
As to construction of this section with § 2366 (47) re-
lating to discharge of employees, see notes to § 2366 (47).
§ 2366(58). Collections and sales, how made. —
Upon taking possession of the assets and business
of any bank, the Superintendent is authorized to
collect all moneys due to such bank, and to do such
other acts as are necessary to conserve its assets
and business, and shall proceed to liquidate the
affairs thereof, as hereinafter provided. The Sup-
erintendent shall collect all debts due and claims
belonging to such bank, and by making application
to the Superior Court of the county in which such
bank is located, or to the judge thereof, if said
Superior Court be not then in session, may procure
an order to sell, compromise or compound any
bad or doubtful debt or claim, and on like order the
Superintendent may sell the real and personal
property of such bank on such terms as the court,
or the judge thereof, shall direct, but on any such
court proceedings the bank shall be made a party
by a proper notice issued from the court, and the
hearing of any such application or petition by the
Superintendent may be had at any time, either .in
term or vacation, after the bank has had five (5)
days notice of such application. Acts 1919, pp.
135, 156.
Status of Superintendent as Receiver — Title to Assets.
— While by this act the title to claims due an insolvent
bank is not expressly declared as being in the superintend-
ent when he takes possession thereof for liquidation, he is
made a quasi-assignee of all the assets of such bank. He
is the statutory receiver, but he does not occupy the posi-
tion of an ordinary chancery receiver or arm of the court
appointing him. He is a representative of the creditors
and may sue on claims due the bank either in his own
name or in the name of the bank. Sessions v. Bennett, 155
Ga. 193, 196, 116 S. E. 300. See Bennett v. Wheatley, 154
Ga. 591, 115 S. E. 83. See also § 2366 (52), which was passed
after the cause of action arose.
Under this section the Superintendent of banks is clothed
with the same powers as a receiver of the national bank
association, appointed by the comptroller of the currency.
This section was evidently modeled upon the national bank
act. See Sessions v. Bennett, 155 Ga. 193, 196, 116 S. E.
300.
Who May Collect in General. — While the superintendent
has possession of a bank only he or his authorized agent
may collect its debts. See §§ 2366 (60), (61). Bennett v.
Simmons, 30 Ga. App. 529, 532, 118 S. E. 493.
Tender to Superintendent. — If a surety upon a note
which is payable to a bank whose affairs are in the con-
trol of the superintendent of banks desires to exercise the
rights given under § 3545, the tender and demand must be
made either to the superintendent himself or to some agent
empowered to act, in the manner provided by law; and if
the tender is made to an agent, the burden of proving his
authority will rest upon the surety. Bennett V. Simmons,
30 Ga. App. 529, 533, 118 S. E. 493. See notes of this case
under §§ 2366 (51), (61).
In amplyfying the preceding paragraph the court said:
— "If this should require that in some instances the tender
should be made at the superintendent's office at the Capi-
tol, and thus work a hardship, we should reply that in the
case now before us the notes were signed after the pas-
sage of the act now in question, and the possibility of such
a burden was thereby assumed. Bennett v. Simmons, 30
Ga. App. 529, 533, 118 S. E. 493.
"The defendant can not be discharged merely by the
failure of the superintendent to have some one at the
bank to accept the tender (although this was not exactly
the plea), nor is it to be presumed that every person who
may be in the physical custody of the building or of the
bank's papers is vested with the power to collect its debts.
The assets of the bank while thus under official control
are held in trust for the depositors and creditors. They
are "really in the custody of the law, and its moneys are
to be handled by those only whom the law shall name.
Bennett v. Simmons, 30 Ga. App. 529, 533, 118 S. E. 493.
§ 2366(59). Superintendent, how enjoined. —
Whenever any bank of whose assets and business
the Superintendent has taken possession, as afore-
said, shall deem itself aggrieved thereby, it may at
any time within ten (10) days after its assets and
business shall have been taken possession of, apply
to the Superior Court of the county in which its
office shall be located, or to the judge of such
court, if the court be not then in session, to enjoin
further proceedings by the Superintendent; and
the said court, or the judge thereof, after citing the
Superintendent to show cause why further proceed-
ings should not be enjoined, and after hearing the
allegations and proof of the parties and determin-
ing the facts, may dismiss such application or en-
join the Superintendent from further proceeding
and direct the said Superintendent to surrender
such business and assets to said bank. Such appli-
cation for injunction may be heard at any time
after three (3) days notice from the time of service
on the Superintendent, in the discretion of the
court, with the right to either party by bill of excep-
tion, as in other cases of applications for tempo-
rary injunction, to carry said case to the Supreme
Court for review. Acts 1919, pp. 135, 156.
See note under § 2366 (66). ,
Venue.— The only provision for suit against the State
[ 546 ]
§ 2366(60)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(66)
superintendent of banks being that contained in this section,
the superintendent can only be sued in the superior court
of the county in which the bank is located, and can not be
sued in a city court. Berrien County Bank v. Alexander,
154 Ga. 775, 115 S. E. 648; S. C, 29 Ga. App. 658, 116 S.
E. 231.
There is nothing to the contrary of what we here hold
in Berrien County Bank v. Alexander, (see preceding
paragraph), in which case we were dealing only with the
venue of a suit under § 8 of article 7 of the act creating
the State Banking Department. Sayer v. Bennett, 159 Ga.
369, 125 S. E. 855. For holding in this case, see notes to
§§ 2366 (14), (59).
§ 2366(60). Superintendent may appoint agent.
—The Superintendent may, under his hand and
official seal, appoint an agent to assist him in taking
possession of, liquidating and distributing the
assets of any hank under the provisions hereof, the
certificate of appointment to be filed in the office of
the Superintendent, and a certified copy thereof
delivered to such agent. Such agent shall receive
a salary, to be fixed as hereinafter provided for the
time he is actually engaged in assisting in liquidat-
ing the affairs of the bank. The Superintendent
may authorize such agent to preform such duties
connected with such liquidation and distribution as
the Superintendent himself could in person do and
perform. Acts 1919, pp. 135, 157.
See notes to §§ 2366 (51), (61).
§ 2366(61). Attorneys, accountants, and assist-
ants.— The Superintendent may employ such at-
torneys and procure such expert accountants and
other experts, assistants and employees as may be
necessary in the liquidation and distribution of the
assets of such bank, and may retain such of the
officers or employees of such bank as he may
deem necessary. Acts 1919, pp. 135, 157.
Authority to Make Collections. — The fact that some per-
son is, during the superintendent's control, in the building
or office of the bank, engaged in work upon its books or
papers, does not, without more, establish that the person
has authority to make collections. This is true for the
reason, among others, that the superintendent may em-
ploy such attorneys, etc., as may be necessary in the
liquidation and distribution of the assets. Bennett v.
Simmons, 30 Ga. App. 529, 532, 118 S. E- 493. See notes of
this case, under §§ 2366 (51), (58).
"Persons so employed might be present at the bank for no
other purpose than that of making an audit. In the interim
the necessity of liquidation and the appointment of an agent
with the authority of collection, entailing expense, may not
nave been determined. It certainly could not be claimed
that during this period the superintendent himself should
(abandon the seat of his office, from which he is to render
his service to the State as a whole, merely for the pur-
pose of remaining at the bank to receive such tenders as
may formally be made by persons indebted." Bennett v.
Simmons, 30 Ga. App. 529, 532, 118 S. E. 493.
§ 2366(62). Bonds of agent and other assistants.
— The Superintendent shall require from the agent
appointed by him, and from such of the assistants
as will have charge of any of the assets of the bank,
such security for the faithful discharge of their
duties as he may deem proper. Acts 1919, pp. 135,
157.
§ 2366(63). Inventory to be filed.— Upon taking
possession of the assets and business of any bank,
the Superintendent shall make an inventory of the
assets thereof in triplicate, one copy to be filed in
the office of the Superintendent and one copy to be
filed, but not recorded, in the office of the Clerk of
the Superior Court of the county in which the bank
is located, and one copy to be kept of file in the
bank. Such inventories shall be open to inspection
[54
during regular office hours of such offices, respec-
tively. Acts 1919, pp. 135, 157.
§ 2366(64). Notice to creditors and proof of
claims. — The Superintendent shall cause notice to
be given by advertisement in the newspaper in
which the sheriff's advertisements of the county
in which the bank is located are published, and in
any other newspaper which in the opinion of the
Superintendent may be necessary or advisable, once
a week for four weeks, calling on all persons who
may have claims against the bank to present the
same to the Superintendent and make sworn proof
thereof, filing the same with said Superintendent
at the office of the bank, and within any time to be
specified in the notice, not less than ninety (90)
days from the date of the first publication of the
notice. A copy of this notice shall be mailed to all
persons whose names appear as creditors upon the
books of the bank. Acts 1919, pp. 135, 158.
See notes to § 2366 (66).
§ 2366(65). Pass-books called in. — The Super-
intendent shall also in like manner notify all de-
positors to bring in their pass books to be balanced
and compared with the books of the bank. De-
posits appearing on the books of the bank which
agree with deposits as shown by the pass-books
shall he held to be prima facie proven claims
against the bank. Acts 1919, pp. 135, 158.
§ 2366(66). Superintendent may reject claims. —
If the Superintendent doubts the justice and
validity of any claim or deposit, he may reject the
same, and serve notice of such rejection upon the
claimant or depositor, either personally or by
registered mail, and an affidavit of the service of
such notice, which shall be prima facie evidence
thereof, shall be filed in the office of the Superin-
tendent. Any action or suit upon such claim so re-
jected must be brought by the claimant against the
bank in the proper Court of the county in which
the bank is located within ninety (90) days after
such service, or the same shall be barred. Acts
1919, pp. 135, 158.
Prerequisite to Suit. — Where the Superintendent has
given the required notice as to the presentment of claims,
as provided in § 2366 (64), a suit can not be brought
against the bank upon any claim, unless the claim, with
sworn proof thereof, has been filed with the Superintendent
of banks or the office of the bank and been rejected by him,
and unless the suit be brought as required by this sec-
tion. Berrien County Bank v. Alexander, 28 Ga. App. 55.
110 S. E. 311.
After Rejection. — Where a claim against a bank when
presented for payment has been rejected by the superin-
tendent as provided in this section, the claimant, under §
2366 (54) must bring suit against the bank to establish the
justice of such claim, and not against the superintendent.
Berrien County Bank v. Alexander, 154 Ga. 775, 115 S.
E. 648; 29 Ga. App. 658, S. C, 116 S. E. 231.
Recovery on Special Deposit. — Where a customer of a
bank made a special deposit of a bond and the bank after-
wards became insolvent, the customer is entitled to re-
cover. And the fact that the defendant bank at the time
of suit was in the hands of the State superintendent of
banks, who admittedly has in his custody sufficient as-
sets of the bank to meet the plaintiff's demand, does not
affect the result. Park v. Carmichael, 20 Ga. App. 36, 92
S. E. 397, and citations; Park v. Swann, 20 Ga. App. 39,
92 S. E. 398; Marietta Trust, etc., Co. v. Faw. 31 Ga.
App. 507, 121 S. E. 244.
Venue. — The only provision for suit against the State
superintendent being that contained in § 2366 (59), the
superintendent can only be sued in the superior court of
the county in which the bank is located, and can not be
7]
§ 2366(67)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(71)
sued in a city court. Berrien County Bank v. Alexander,
154 Ga. 775, 115 S. E. 648.
Construed with Section 2366 (54). — As to construction of
this section and § 2366 (54), which relates to effect of no-
tice or possession, see the notes to § 2366 (54).
§ 2366(67). Objections to claims. ™ Objections
to any claim or deposit not rejected by the Super-
intendent may be made by any party interested by
filing a copy of such objections with the Superin-
tendent, and the Superintendent, after investiga-
tion, shall either allow such objections and reject
the claim or deposit, or present such objections to
the Superior Court of the county in which the bank
is located, which court shall cause an issue to be
made up and tried at the first term thereafter as to
whether or not such claim or deposit should be al-
lowed. Acts 1919, pp. 135, 159.
In General. — This section does not provide for any suit
or action against the superintendent of banks. Berrien
County Bank v. Alexander, 154 Ga. 775, 115 S. E. 648 (66);
29 Ga. App. 658, S. C, 116 S. E. 231. See note to § 2336.
§ 2366(68). List of claims made up and filed. —
Upon the expiration of the time fixed for the pre-
sentation of claims, the Superintendent shall make
in triplicate a full and complete list of the claims
presented and of the deposits as shown by the
'books of the bank, including and specifying any
-claims or deposits which have been rejected by
him, one copy to be filed in the office of the Super-
intendent and one copy to be filed, but not
recorded, in the office of the Clerk of the Superior
Court of the county in which the bank is located,
and one copy to be kept of file in the bank. Such
inventories and list of claims shall be open to in-
spection during regular office hours of such offices,
respectively. Acts 1919, pp. 135, 159.
§ 2366(69). Claims presented after time fixed. —
Claims filed with the superintendent after the
expiration of the time fixed in the notice to cred-
itors, as herein provided, shall be entitled, after they
have besn allowed by the superintendent, to share
in the distribution of the assets of the bank, only to
the extent of the assets undistributed and in the
hands of the superintendent at the time such claims
are filed, provided, however, that no claims
shall be allowed, or shall participate in the distri-
bution of the assets of such bank, but same shall
be completely barred unless the same be filed with-
in twelve months after the expiration of the time
fixed in the notice to creditors, as herein provided.
Acts 1919, pp. 135, 159; 1924, pp. 135, 159; 1925, pp.
119, 128. •
§ 2366(70). Order of paying debts. — After pay-
ment of the expenses of liquidation including com-
pensation of agents and attorneys, the order of
paying off debts due by insolvent banks shall be as
follows:
1. Debts due the State of Georgia;
2. Debts due any county, district or municipality,
including taxes;
3. Debts due by the bank as executor, administra-
tor, guardian, trustee or other fiduciary of like
character;
4. Judgments and debts secured by lien to the
extent of the value of such lien, not void or void-
able under the provisions of this Act or the law of
Georgia; judgments and Hens to have the force,
rank and dignity prescribed by law;
5. Debts due to depositors and other contractual
liabilities pro rata.
6. Unliquidated claims for damages and the like.
Acts 1925, pp. 119, 129.
Editor's Note.— This section taken from the act of 1925
repealed the corresponding section of the act of 1919. The
act of 1919 provided that debts due the United States should
rank third in the order of payment and the expenses of
liquidation, including the compensation of agents and at-
torneys, should rank fourth in order. These were omitted
from the act of 1925.
This section changes the law in force prior to the act of
1919. By § 2353 of the Code of 1910 it was provided that
the order of payment of debts should be the same as pre-
scribed in case of administration to the extent applicable
except where a special preference or postponement is given
by law. These rules, found in § 4000 of this Code were
not appropriate to banks.
Under the old law the state ranked first in priority of
payment, see Central Bank, etc., Corp. v. State, 139 Ga. 54,
59, 76 S. E. 587, but counties were not entitled to priority
over individual depositors, see County of Glynn v. Bruns-
wick, etc., Co., 101 Ga. 244, 28 S. % 604.
As to payment of attorneys, agents, etc., see § 2366 (74).
Deposits for Specified Purpose.— Under the allegations of
the petition the deposit, for which priority is sought, is
not_ a "general" nor, strictly speaking, a "special" deposit.
It is a deposit for a designated or specified purpose, and,
under par. 5 (now 3) of this section, is entitled to priority
of payment over "general" deposits which .fall under par.
7 (now 5) of that section and article. Williams v. Ben-
nett, 158 Ga. 488, 123 S. E. 683. See notes to § 2366 (66).
§ 2366(71). Assessment of stockholders— With-
in ninety (90) days after the Superintendent of
Banks has taken possession of the assets and busi-
ness of any bank, as in this Act authorized, he
shall make a careful estimate of the values of the
cash assets of said bank which can probably be
converted into cash within one year after so taking
possession of the assets and business of said bank,
and of the amount of such cash assets which will
be available to pay depositors, and he shall
immediately thereupon make an assessment upon
the stockholders of said bank sufficient, when added
to the cash assets so available for depositors, to
pay the said depositors in full provided that such
assessment shall not exceed the liability of stock-
holders upon their said stock. Notice of such assess-
ment shall be given by mail to each of the stock-
holders of said bank, and if any stockholder so
notified shall refuse or neglect to pay any such
assessment within thirty days after the levy of
such assessment and notice thereof, the superin-
tendent of banks shall issue an execution against
such stockholders for the amount of such assess-
ment, which shall be enforced in like manner as
executions issued by the superior courts of this
State upon judgments regularly rendered by said
courts; provided, however, that any stockholder
shall have the right by affidavit of illegality, as in
cases of affidavits of illegality to other executions
to contest his liability for such assessment and the
amount and necessity thereof. Where an affidavit
of illegality is filed with the levying officer he shall
return the same, together with the execution, to
the superior court of the count3^ of the residence
of the stockholder to be there tried as illegalities
filed to executions issued on judgments rendered
by said courts are tried. Said executions shall be a
lien on all property of the defendant subject to levy
and sale for the amount which shall be adjudged to
be due thereon from the date of the issuance there-
of by the superintendent. If at any time prior to
the final payment of all indebtedness of such bank
[ 548 ]
§ 2366(71)
TAKING POSSESSION OF BANK BY SUPERINTENDENT
§ 2366(75)
it shall appear to the superintendent that the assess-
ment made by him is insufficient in amount to pay
such depositors in full, said superintendent may
from time to time make other assessments not in
excess of the liability of the stockholders upon their
stock, which shall be enforced and collected in like
manner.
After all the indebtedness of such bank is paid in
full, the remaining assets of such bank shall be
applied first to reimbursing the stockholders who
have paid such assessment or assessments, and
thereafter pro rata to all the stockholders.
Provided that the lien provided for in this sec-
tion shall not be good as against third persons
without actual notice of the same, until the said
execution has been entered on the General Execu-
tion Docket in the office of the clerk of the superior
court in the county of the defendant's residence,
and as to real estate of the defendant, in the county
where the land lies.
Provided, however, that the provisions of this
section shall not apply to any bank or banks which
has heretofore been closed and which is now in
process of liquidation. Acts 1919, pp. 135, 160;
1925, pp. 119, 129.
Editor's Note. — The 1925 amendment to this section made
several changes. Under the section before the amendment
the stockholders could not question the correctness of the
estimate made by the superintendent or the amount of
such assessment but such estimate and amount when fixed
by the superintendent were conclusive. The amendment
gives them such rights.
The act before the amendment did not provide for the
return of affidavits of illegality. Nor did it provide that
the execution should constitute a lien upon the stock-
holders' property ; or include the two provisos at the end.
As to whether or not the amendment is broader than the
title of the act and therefore tmconstitutional, quaere.
Prior to the act of 1919, the receiver, after appointment,
was authorized to bring suit against the stockholders for
the recovery from each of his appropriate shares; in case
of the failure of the receiver to do so any creditor might
have instituted such suit in the receiver's name, see §
2356 of the Code of 1910.
Due Process of Law. — In Bennett v. Schwarz, 154 Ga.
885, 116 S. E. 306, the court was evenly divided upon the
question of whether or not article 7 of § 20 of the act ap-
proved August 16, 1919, (similar to this section as ex-
plained in the editor's note above) which purports to
authorize the superintendent of banks to make a final as-
sessment and to issue executions against bank stock-
holders, without notice and without a hearing, is void be-
cause in violation of due process. See also, Bennett v.
Wheatley, 154 Ga. 591, 115 S. E. 83.
One of the questions for decision by a full bench of six
Justices being whether § 20 of article 7 of the act creating
the Department of Banking of this State (Acts 1919, p.
160) is unconstitutional, and the Justices being evenly
divided in opinion, Russell, C. J., and Hill and Gilbert, JJ.,
being of the opinion that said section of said act is un-
constitutional, and Beck, P. J., and Atkinson and Hines,
JJ., being of the opinion that the same is constitutional,
the judgment of the court below upon this point stands
affirmed by operation of law. Sayer v. Bennett, 159 Ga.
369, 125 S. E. 855.
And in Martin v. Bennett, 291 Fed. 626, it was held that
the provision of this section, making amount of the as-
sessment against stockholders conclusive, does not ren-
der the act unconstitutional as depriving stockholders of
their property without due process of law, in view of the
further provision that any surplus after paying debts of
the bank shall be applied to reimbursement of stock-
holders who have paid assessments.
Remedy of Stockholders. — Stockholders of insolvent
banks (when such banks are taken over by the superin-
tendent of banks for liquidation, and an assessment is
made upon them by said official, on account of their
statutory liability, to pay depositors) have, under this sec-
tion, an ample remedy by affidavit of illegality to contest
their liability for such assessment. Bennett v. Wheatlev,
154 Ga. 591, 115 S. E. 83.
Return of Process. — When an execution issues against a
stockholder, and he files an affidavit of illegality thereto
when levied, the same becomes mesne process, which may
be returned to the superior or other proper court of the
county of the residence of the stockholder for trial. Ben-
nett v. Wheatley, 154 Ga. 591, 115 S. E. 83.
This statute is not invalid because, while it gives the
stockholder assessed, after issuance of execution against
him by the superintendent, "the right by affidavit of il-
legality, as in case of affidavits of illegality to other exe-
cutions, to contest his liability for such assessment," it
does not designate any court to which the affidavit shall
be returnable, that court being, by the plain intent of the
statute, the superior court of the county in which he re-
sides, and where under the constitution, § 6543, civil cases
against him, with specified exceptions, are required to be
brought. Martin v. Bennett, 291 Fed. 626.
§ 2366(72). Dividends, when paid. — At any
time after the expiration of the date fixed by the
Superintendent for the presentation of claims
against the bank, and from time to time thereafter,
the Superintendent may, out of the funds remain-
ing in his hands after the payment of expenses and
priorities, declare and pay dividends to the deposi-
tors and other creditors of such bank, and a dividend
shall be declared when and as often as the funds
on hand subject to the payment of dividends shall
be sufficient to pay ten (10) per cent, of all claims
entitled to share in such dividends.
In calculating dividends, all disputed claims and
deposits shall be taken into account, and the
amount of dividends upon such disputed claims or
deposits shall be held by the Superintendent until
the justice and validity of such claims or deposits
shall have been finally determined. Acts 1919, pp.
135, 161.
§ 2366(73). Funds to be deposited.— All funds
collected by the Superintendent shall be from time
to time deposited in such bank or banks as may be
selected by him, subject to the check of the Super-
intendent of Banks. Acts 1919, pp. 135, 161.
§ 2366(74). Compensation of agents, attorneys,
and others, how fixed. — The compensation of the
agents appointed by the Superintendent and of
attorneys, expert accountants, and other assist-
ants, and all expenses of liquidation and distribu-
tion of a bank whose assets and business shall be
taken possession of by the Superintendent, shall be
fixed by the Superintendent, but subject to be ap-
proved by the Judge of the Superior Court of the
county in which the bank is located, on notice to
such bank. When the compensation shall have
been so fixed and approved and the services ren-
dered, the same shall be paid out of the funds of
such bank in the hands of the Superintendent, and
shall be a proper charge and lien on the assets of
such bank. Acts 1919, pp. 135, 161; 1925, pp. 119.
132.
§ 2366(75). Unclaimed deposits and dividends. —
Where deposits or other claims against the bank
are not filed within twelve months after the expira-
tion of the date fixed by the superintendent for the
presentation of claims against the bank, no divi-
dend shall be paid thereon but dividends accruing
on said claims shall be distributed as other assets
of the bank, and where dividends are not accepted
and collected within six months after they are de-
clared, the}^ shall become a part of the general fund
of the bank and be distributed as other assets. Acts
1925, pp. 119, 132.
Editor's Note.— The 1925 amendment repealed all of the
corresponding sections of the act of 1919 and substituted
[549]
2366(76)
INCORPORATION OF BANKS
§ 2366(80)
the above provisions in lieu thereof. Under the old law
dividends and unclaimed deposits remaining unpaid for
six months were deposited by the superintendent on in-
terest in trust for the several depositors and creditors, then
paid over to the person entitled thereto upon sufficient
proof of ownership. The interest was used to defray ex-
penses; and if there was a remainder it was held as other
funds to the credit of the banking department.
§ 2366(76). Stockholders' meeting to be called.
— -Whenever the Superintendent shall have paid to
each and every depositor and creditor of such bank
whose claim shall have been duly proven and al-
lowed, the full amount of such claim, and shall
have made proper provision for unclaimed and un-
paid deposits and disputed claims and deposits,
and shall have paid all the expenses of liquidation,
the Superintendent shall call a meeting of the
stockholders of such bank by giving notice thereof
by publication once a week for four weeks in the
newspaper in which the Sheriff's advertisements of
the county in which the bank is located are pub-
lished, and by mailing copy of such notice to each
stockholder addressed to him at his address as the
same shall appear upon the books of the bank; and
at such meeting the stockholders shall determine
whether the Superintendent shall continue as
liquidator and shall wind up the affairs of such
bank, or whether an agent or agents shall be
elected for that purpose, and in so determining, the
stockholders shall vote by ballot in person or by
duly executed proxy, each share of stock entitling
the holder to one vote, and a majority vote of the
stock shall be necessary to a determination. In
case it is determined to continue the liquidation
under the Superintendent, he shall complete the
liquidation of the affairs of such bank, and, after
paying the expenses thereof, and reimbursing the
stockholders who have paid any assessments upon
their stock the amount paid by them, respectively,
he shall distribute the proceeds among the stock-
holders in proportion to their several holdings of
stock. Acts 1919, pp. 135, 162.
§ 2366(77). Stockholders' agent, election, powers,
and duties of. — In case it is determined to appoint
an agent or agents to liquidate, the stockholders
shall thereupon elect such agent or agents by
ballot, each share being entitled to one vote, the
majority of the stock present and voting being
necessary to a choice. Such agent or agents shall
execute and file with the Superintendent a bond in
such amount, with such security and in such form
as shall be approved by the Superintendent, condi-
tioned for the faithful performance of all the duties
of his or their trust, and so conditioned that any
party aggrieved may bring or cause to be brought
suits on said bond, and, thereupon the Superintend-
ent shall transfer and deliver to such agent or
agents all the undivided and uncollected or other
assets of said bank then remaining in his hands,
and upon such transfer and delivery the said Sup-
erintendent shall be discharged from any and all
further liability to such bank and its creditors.
iSuch agent or agents shall convert the assets com-
ing into his or their hands into cash, and shall act
for and make distribution of the property of said
bank, as is herein provided in case of distribution
by the Superintendent, the expenses of such liqui-
dation being subject to the control and approval of
the Judge of the Superior Court of the county in
which the bank is located. Acts 1919, pp. 135, 163.
§ 2366(78). Successor of agent, how chosen.—
In case of the death, removal, or refusal to act of
any agent or agents elected by the stockholders,
the stockholders, upon notice given by the Super-
intendent, as is herein provided in case of the origi-
nal election, upon proof of such death, removal,
or refusal to act being filed with said Superintend-
ent, and by the same vote as hereinbefore provided
for, shall elect a successor, who shall have the same
powers and be subject to the same liabilities and
duties as the agent or agents originally elected.
Acts 1919, pp. 135, 164.
§ 2366(79). Superintendent to report banks
liquidated.— The Superintendent shall file as a part
of his annual report to the Governor a list of the
names of the banks so taken possession of and
liquidated, and the sum of unclaimed and unpaid
deposits or dividends with respect to each of them
respectively, and where such unpaid deposits or
dividends are deposited. Acts 1919, pp. 135, 164.
SECTION 8.
Incorporation of Banks.
§ 2366(80). Application for charter . — Any num-
ber of persons not less than five (5) may form a
corporation for the purpose of carrying on the
business of banking, by filing in the office of the
Secretary of State an application in writing signed
by each of them, in which they shall state:
1. The name by which such bank is to be known.
2. The particular city, town, or village, where its
office is to be located.
3. The amount of its capital stock which shall
not be less than Fifteen Thousand Dollars ($15,-
000.00) in any town or village incorporated or un-
incorporated, whose population does not exceed
one thousand (1,000) according to the last preced-
ing census of the United States, and not less than
Twenty-five Thousand Dollars ($25,000.00) in
any city, town, or village, whose population ex-
ceeds one thousand (1,000) and is less than ten
thousand (10,000), and not less than Fifty Thou-
sand Dollars ($50,000.00) in any city or town
whose population exceeds ten thousand (10,000).
4. The number of shares into which such capital
stock shall be divided, provided the par value of
each share of stock shall be One Hundred Dollars
($100.00).
5. The purposes and nature of the business pro-
posed to be conducted, with any other matters
which they may deem it desirable to state.
6. The number of directors of the bank, which
shall not be less than three (3) nor more than
twenty-five (25).
Said application shall be filed in triplicate, and
a fee of Fifty Dollars ($50.00) shall be paid to the
Secretary of State to be covered by him into the
Treasury of the State, on filing the application,
and the Secretary of State shall not receive said
application until said fee shall be paid. The person
filing such application may also acquire all the
rights, powers and privileges and immunities, and
be subject to all of the liabilities and restrictions
conferred and imposed upon, trust companies by-
Sections 2815 to 2821 both inclusive of the Civil
Code of Georgia of 1910 and the several Acts
[550]
§ 2366(81)
INCORPORATION OF BANKS
§ 2366(85)
amendatory thereof, and in addition to the usual
banking powers, as conferred and described in this
Act, providing such applicants shall allege that at
least $100,000.00 of capital stock has been sub-
scribed and actually paid in; provided also such ap-
plicants shall pay to the Secretary of State upon
filing such application to be converted by him
into the Treasury of the State, a fee of $25.00 in
addition to the fee of $50.00 above provided, in all
cases where trust company powers are desired as
above set forth. Acts 1919, pp. 135, 164; 1920, pp.
102, 105.
Editor's Note.— The constitution, § 6446, provides that
all corporation charters to banking companies are required
to be issued and granted by the secretary of state in such
manner as should be prescribed by law and if the secretary
is disqualified the legislature should prescribe by what
person such charter should be granted. Prior to this act,
§§ 2262 et seq. of the Code of 1910, constituted the
laws passed for the incorporating of banks under the con-
stitution. It was provided by § 2263 that if the Secretary
of State should be disqualified the application should be
made to the Comptroller General who should perform in
place of the Secretary.
Under § 2262 there must have been not less than three
persons making application. By § 2269 it was provided
that the capital stock must be not less than $25,000, no
graduation being made in proportion to size of town.
Generally this section follows § 2266 of the Code except as
herein pointed out.
The last paragraph of this section was added by the acts
of 1920.
The provisions of the act of 1893 relating to the issuance
of certificates of incorporation to banking institutions by
nhe Secretary of State were not materially changed by this
act. Manley v. McLendon, 158 Ga. 659, 124 S. E. 138.
Where five persons addressed a petition to the Secre-
tary of State, under the provisions of the above-mentioned
statute, for incorporation of a bank, specifying in their
declaration as the name of the proposed corporation the
"Bank of the State of Georgia," and caused to be fully
accomplished all requirements which the statute provided
should be necessary to the issuance of the certificate of
incorporation, it was the duty of the Secretary of State to
issue a certificate of incorporation in the name as specified
in the declaration; and if he refused to do so, a writ of
mandamus would lie to compel the performance of that
official duty. Manley v. McLendon, 158 Ga. 659, 124 S. E.
138.
§ 2366(81). Application to be published.— When
the application is filed, the Secretary of State shall
certify one of the copies thereof and deliver the
same to the applicants, and the same shall be pub-
lished by the applicants in the newspaper in which
the sheriff's advertisements of the county, in which
the bank is to be located, are published, once a
week for four weeks. Acts 1919, pp. 135, 165.
§ 2366(82). Application referred to superintend-
ent of banks. — Immediately upon the filing of the
application, the Secretary of State shall transmit
one copy thereof to the Superintendent of Banks
for investigation by him. Acts 1919, pp. 135, 165.
Editor's Note. — Prior to the enactment of this section
no investigation of the application for charter was required,
the Secretary of State relied upon the information given
in the application.
§ 2366(83). Information to be furnished super-
intendent by applicants. — When such application
has been referred to the Superintendent of Banks
he shall call upon the applicants for a statement,
showing:
1. The names and places of residence of the
subscribers to the stock of such bank and the
number of shares to be held by each.
2. The names of the stockholders who shall be
directors for the first year of the incorporation of
said bank.
3. How and when it is proposed that the capi-
tal stock shall be paid in.
4. When it is proposed that such bank shall
commence business.
5. Such other information as may be desired by
the Superintendent of Banks.
Which statement it shall be the duty of said
applicants to furnish upon request of said Super-
intendent. Acts 1919, pp. 135, 165.
§ 2366(835/2). Examination by and certificate
of superintendent. — The Superintendent of
Banks shall ascertain from the best source of in-
formation at his command whether the character
and general fitness of the persons named as sub-
scribers to the stock of such bank are such as to
command the confidence of the community in
which such bank is proposed to be located, and
whether the public convenience and advantage
will be promoted by its establishment. If so
satisfied, he shall, within thirty (30) days after
the application shall have been filed with him
for examination, issue under his hand and official
seal a certificate approving the granting of the
charter for such bank, and shall transmit a copy
of such certificate of approval to the secretary of
state, who shall enter the same of record in his
office. The said superintendent shall also keep
of file a duplicate of said certificate in his own
office. If the superintendent shall not be satis-
fied that the establishment of the bank, as pro-
posed, is expedient and. desirable, he shall within
thirty (30) days after the filing of said application
with him notify the secretary of state, in writing,
that he refuses to approve the granting of a char-
ter, and upon such notice any applicant aggrieved
may avail himself of the right of mandamus, as
provided in § 2366(135), provided, however, that
no charter shall be granted or issued by the secre-
tary of state unless the approval herein provided
for shall have been first obtained by the applicant.
Acts 1925, pp. 119, 132.
Editor's Note. — The subject matter of this entire section
is added by the act of 1925.
§ 2366(84). Certificate of publication. — When
said application shall have been published, the
applicants may apply to the Ordinary of the
county in which the proposed bank shall be lo-
cated to certify the fact of such publication, and
the Ordinary shall certify the fact, which certifi-
cate shall be filed by the applicants in the of-
fice of the Secretary of State. Acts 1919, pp. 135.
166.
For a provision of old law similar to this section, see §
2265 of the Code of 1910.
§ 2366(85.) Certificate of incorporation to be
issued. — When the certificate of the Ordinary to
the fact of the publication of the application shall
have been filed by the applicants in the office of
the Secretary of State, the Secretary of State
shall issue to the applicants, their associates, and
successors, a certificate of incorporation under
the seal of the State, certifying that the appli-
cants, their associates, and successors, are a body
politic and corporate under the name and style
designated in the application, and that such cor-
poration has the capacity and powers conferred,
and is subject to all the duties and liabilities im-
[551]
§ 2366(86)
INCORPORATION OF BANKS
§ 2366(90)
posed by law; and the Secretary of State shall re-
cord the application, the certificate of approval of
the Superintendent of Banks, the certificate of
the Ordinary as to publication, and the certificate
of incorporation, in the order named. Acts 1919,
pp. 135, 166.
This section is similar to a portion of § 2265 of the Code
of 1910.
§ 2366(86.) Payment of capital. — At least
sixty (60) per cent, per share of the Capital
Stock of every bank, and in no event less than
Fifteen Thousand Dollars ($15,000.00), shall be
paid in, in cash, before such bank shall be
authorized to commence business, and the re-
mainder of the capital stock shall be paid in with-
in one year, in such installments as may be ap-
proved by the Superintendent of Banks, and the
payment of each installment shall be certified to
the Superintendent of Banks under oath by the
president or cashier of the bank. Acts 1919, pp.
135, 166.
Editor's Note. — Under the prior law, § 2269 of the Code
of 1910, not less than 20% of the capital must be paid in
and in no case not less than $15,000. Under such law banks
might incorporate with a minimum of $25,000, only $15,000
being paid in with no requirement as to when the remain-
der should be paid.
§ 2366(87.) Permit to begin business. — Before
any bank shall transact any business as a bank,
such bank shall file with the Superintendent of
Banks a request for a permit to commence busi-
ness. No bank shall transact any business as a
bank without the written permit of the Superin-
tendent, certifying that such bank has complied
with all the requirements of law, and is author-
ized to transact business as a bank, and that such
business can be safely entrusted to it, which per-
mit shall be recorded in the office of the Superin-
tendent in a book to be kept by him for that pur-
pose; and a certified copy thereof under the hand
and official seal of the Superintendent shall be
furnished to and kept of file by the bank. The
Superintendent, before issuing his permit to any
bank to begin business, shall make an examina-
tion, or cause an examination to be made, in or-
der to ascertain whether the requisite capital of
such bank shall have been paid in, in cash. The
Superintendent shall not authorize any bank to
commence business until it shall be made to ap-
pear to his satisfaction, from such examination,
that the amount of capital herein required has
been subscribed in good faith, and that at least
sixty (60) per cent per share of the authorized
capital stock, and in no event less than Fifteen
Thousand Dollars ($15,000.00), has been paid in,
in cash, and that provision has been made for
collecting the remaining portion of the capital
within one (1) year. The first directors shall be
those named in the application for charter, or
such stockholders as may be substituted, with the
approval of the superintendent, for any therein
named. Acts 1919, pp. 135, 167.
§ 2366(88.) Enforcing payment of capital. —
Whenever any stockholder, or his assignee, shall
fail to pay any installment on the stock when the
same is required to be paid, the directors of such
bank may sell the stock of such delinquent stock-
holder at public sale, after giving four (4) weeks
previous notice thereof in the newspaper in which
the sheriff's advertisements are published, in the
county in which the bank is located, said sale to
be to the highest bidder for cash, provided such
bid shall not be less than the amount unpaid on
such stock, with the expense of advertisement
and sale, and out of the proceeds the bank shall
pay the expenses of sale and the balance due on
the stock, and the excess, if any, shall be paid to
the delinquent stockholder. If no bidder can be
found who will pay for such stock the amount
due thereon to the bank, together with the costs
of advertisement and sale, the amount previously
paid by the stockholder shall be forfeited to the
bank, and such stock shall be sold by the direc-
tors either at public or private sale, as they shall
see fit, within six (6) months from the time of
such forfeiture, and if not sold, it shall be can-
celled and deducted from the capital stock of the
bank. If any such cancellation or reduction
shall reduce the capital of the bank below the
minimum capital required by law for such bank,
the capital shall within thirty (30) days from the
date of such cancellation be increased, to the re-
quired amount, in default of which the Superin-
tendent of Banks shall be authorized to proceed
as in cases where the capital shall have become
impaired by reason of losses or otherwise.
A sale of stock as herein provided shall effect
an absolute cancellation of the outstanding cer-
tificate or certificates evidencing the stock so sold
and shall make the same null and void, and the
rights of any and all holders thereof shall termi-
nate, and a new certificate or certificates shall be
issued to the purchaser or purchasers of such
stock, free from all liens and claims whatsoever.
The remedies of sale or forfeiture herein pro-
vided shall be cumulative to any other remedies
provided by law for the collection of the unpaid
balance of such subscription. Acts 1919, pp. 135,
167.
Editor's Note. — Under the prior law there was no similar
provision for enforcing payment of capital.
§ 2366(89.) Lien on stock for unpaid install-
ment.— Any bank, the stock of which has not
been fully paid for by the subscriber or subscrib-
ers, shall have and is hereby given a special lien
upon said stock, which lien shall not be divested
by sale, transfer, or otherwise, until all install-
ments are fully paid thereon. Any certificate of
stock issued before the stock shall have been paid
for in full shall show upon the face thereof the
amount which has been paid. Save and except
for unpaid installments due thereon, no bank
shall have or enforce, by by-law or otherwise,
any lien on its stock unless the same shall have
Ibeen regularly pledged and the stock certificate
transferred to the bank as in case of other col-
lateral. Acts 1919, pp. 135, 168.
Editor's Note. — Prior to this act § 3375, authorizing cor-
porations to create liens upon their shares for unpaid install-
ments by their by-laws was applicable to banks. This sec-
tion prevents its applicability.
Banks Incorporated Under Former Law. — No statutory
or charter lien upon its stock for unpaid purchase-money
of said stock exists in favor of a bank chartered under the
provisions of the prior law, §§ 2262 et seq. Montrose
Banking Co. v. Ford, 155 Ga. 222, 116 S. F- 783.
SECTION 9.
Amendment of Bank Charters.
§ 2366(90.) What amendments allowed. — Any
bank, whether incorporated by special act of the
[ 552 ]
§ 2366(91)
AMENDMENT OF BANK CHARTERS
§ 2366(96)
General Assembly or by the Secretary of State
under the general law, may have its charter
amended so as to change its corporate name, or
the city, town, or village in which its office is lo-
cated, or the amount of its capital stock, or the
number of shares into which its capital stock is
divided, so as to change the par value thereof to
One Hundred Dollars each and where the capi-
tal stock of such bank subscribed and paid in
shall be not less than one hundred thousand
($100,000.00) dollars, so as to acquire all the
rights, powers, privileges and immunities, and be
subject to the liabilities and restrictions conferred
and imposed upon trust companies by Sections
2815 to 2821, both inclusive, of the Civil Code of
1910, and the several Acts amendatory thereof;
and any bank heretofore incorporated by special
act of the General Assembly may have its special
charter amended so as to incorporate therein any
provision of this act or any amendment thereto.
Acts 1919, pp. 135, 169; 1920, pp. 102, 107.
As to the amendment of charters after merger or con-
solidation, see § 2366 (114).
Editor's Note. — Prior to the enactment of this section
the charter of the bank might have been amended in the
manner provided by either of §§ 2197, 2201, 2268 or 2271.
This section provided for a uniform procedure.
The amendment of 1920 added the provision relating to
the amendment of the charters of banks having no less
than $100,000 capital stock so that such banks shall have
powers conferred aipon trust companies under §§ 2815 to
2822 inclusive, saving the provisions of the act of 1917 from
repeal.
§ 2366(91.) Application for amendment. — The
bank desiring such amendment shall file in the
office of the Secretary of State an application in
triplicate, signed with its corporate name and un-
der its corporate seal, in which it shall state the
name of said bank, the date of its original char-
ter, and all amendments thereto, and the particu-
lar amendment or amendments to its said charter
it desires; and shall pay to the Secretary of State
a fee of Twenty-five ($25.00), Dollars, to be cov-
ered by him into the Treasury of the State. Said
bank shall also file with said application a certi-
fied abstract from the minutes of the stock-
holders thereof showing that the application for
the proposed amendment has been authorized by
a vote of a majority in amount of the entire capital
stock at a meeting of the stockholders, called for
the purpose of acting thereon, by a resolution of
the board of directors, notice of which meeting
shall have been mailed to each stockholder, or
in case of death, to his legal representative or
heirs at law, addressed to his last known resi-
dence at least ten (10) days previous to the date
of said meeting, provided, however, if the appli-
cation is. to change the city, town, or village in
which its office is located, then the certified ab-
stract from the minutes shall show that the
amendment was authorized by the unanimous
vote of the stockholders present at said, meeting.
Acts 1919, pp. 135, 169.
§ 2366(92.) Application to be published. —
When the application for amendment is filed, the
Secretary of State shall certify one of the copies
thereof and deliver the same to the bank and the
same shall be published by the bank in the news-
paper in which the sheriff's advertisements, of the
county in which the bank is located, are pub-
lished, once a week for four (4) weeks. Acts
1919, pp. 135, 170.
This section is similar to provisions of § 2273 of the C-xle
of 1910.
§ 2366(93.) Application referred to superinten-
dent of banks. — Immediately upon the filing of
the application for amendment, the Secretary of
State shall transmit one copy thereof to the Su-
perintendent of Banks for investigation by him.
Acts 1919, pp. 135, 170.
§ 2366(94.) Examination by and certificate of
Superintendent. — When such application for
amendment shall have been referred to the Su-
perintendent of Banks, the said Superintendent
shall immediately investigate either through him-
self or some person appointed by him, and shall
satisfy himself that such amendment is proper
and has been duly authorized by proper corporate
action, and in case application is for the in-
crease of the capital stock, that the amount of
such additional capital has been paid in, in cash,
except where surplus is capitalized, and in case
said application is for the reduction of the capi-
tal stock, that the method by which such reduc-
tion is accomplished is proper and fair to all the
stockholders, and that the capital stock is not re-
duced below the amount required by law for
such bank, and that all the requirements of law
have been fulfilled. If so satisfied the Superin-
tendent of Banks shall, within thirty (30) days
after the application for amendment shall have
been filed with him for examination, issue under
his hand and official seal a certificate approving
the amendment to the charter of such bank, and
shall transmit a copy of such certificate to the
Secretary of State, who shall enter the same of
record in his office. The said Superintendent
shall also keep of file a duplicate of said certifi-
cate in his own office. If the Superintendent
shall not be satisfied that the amendment as pro-
posed is expedient and desirable, or that the law
for such cases made and provided has been fully
complied with, or, if the said amendment is for
the increase of the capital stock, that the said in-
crease has not been paid in, as herein provided,
he shall, within thirty (30) days after the filing of
the copy of said application for amendment with
him, notify the Secretary of State that he refuses
to approve the amendment to the charter, and no
amendment shall in that event be granted by the
Secretary of State. Acts 1919, pp. 135, 170.
§ 2366(95.) Certificate of publication. — When
the application to amend the charter shall have
been published, the bank may apply to the Or-
dinary of the county in which it is located to
certify the fact of such publication, and the Or-
dinary shall certify the fact, which certificate
shall be filed by the bank in the office of the Sec-
retary of State. Acts 1919, pp. 135, 171.
This section is similar to provisions of § 2273 of the Code
of 1910.
§ 2366(96.) Certificate of amendment to be is-
sued.— When the certificate of the Ordinary to
the fact of the publication of the application for
amendment shall be filed by the bank in the of-
fice of the Secretary of State, and the certificate
of the Superintendent of Banks approving the ap-
plication for amendment shall likewise be filed
[553 ]
§ 2366(97)
RENEWAL OF BANK CHARTERS
§ 2366(102)
with the Secretary of State, the Secretary of
State shall issue to the bank a certificate, under
the seal of the State, amending its charter in the
particulars prayed for; and the Secretary of State
shall record the application for amendment, the
certificate of approval of the Superintendent of
Banks, the certificate of the Ordinary as to the
publication, and his certificate of amendment, in
the order named, Acts 1919, pp. 135, 171.
Editor's Note. — A certificate similar to the one herein re-
quired was required by §§ 2198, 2200, 2202, and 2274 of the
Code of 1910. See editor's note under § 2366 (90).
§ 2366(97.) Increase of capital from surplus
and undivided profits. — Any bank may increase
its capital stock from its surplus and undivided
profits where its charter has been amended au-
thorizing such increase and the approval of the
Superintendent of Banks to such increase from
the surplus and profits shall have been previously
obtained,, provided that no increase from surplus
and profits shall be made which will reduce the
unimpaired surplus to an amount less than
twenty (20) per cent, of the capital stock. Acts
1919, pp. 135, 171.
§ 2366(98.) Increase offered to stockholders. —
When the capital stock of any bank shall be in-
creased, the additional stock shall be offered to
the stockholders of record at the time of such in-
crease pro rata, and if any such stock shall not be
subscribed for or taken by such original stock-
holders, the same shall then be offered to the
public upon such terms as may be fixed by the
board of directors subject to the approval of the
Superintendent of Banks, provided that no stock
shall ever be sold for less than par and that no
subscription shall be payable in anything except
cash; provided, however, that the payment of
such increase of capital stock may be made in the
manner set forth in Section 2366(86) providing
for the payment of original capital of such bank.
Acts 1919, pp. 135, 171; 1920, pp. 102, 107.
Editor's Note. — The provision at the end of this section
was added by the Acts of 1920.
SECTION 10.
Renewal of Bank Charters.
§ 2366(99.) Application for renewal. — Any
bank, whether incorporated, by special act of the
General Assembly, or by the Secretary of State
under the general law for the incorporation of
banks, may have its charter renewed and its cor-
porate existence extended for a period of thirty
years by filing with the Secretary of State at any
time within six (6) months prior to the expira-
tion of its charter and application in triplicate,
signed with its corporate name and under its
corporate seal, in which it shall state the name of
the bank, and when and how incorporated, giving
the date of its original charter and all amend-
ment thereto, and pray for a renewal of its char-
ter, and upon filing such application, it shall pay
to the Secretary of State a fee of $25.00 to be cov-
ered by him into the Treasury of the State. Said
bank shall also file with said application a certi-
fied abstract from the minutes of the stockholders
thereof showing that the application for renewal
of its charter has been authorized by a vote of
two-thirds (2/3) in amount of the entire capital
stock of the bank at a meeting of the stock-
holders, called for the purpose of acting thereon,
by resolution of the board of directors, notice of
which meeting shall have been mailed to each
stockholder, and in case of death to his legal rep-
resentative, or heirs at law, addressed to his last
known residence, at least ten (10) days previous
to the date of said meeting. Acts 1919, pp. 135,
172.
As to the amendment of charters after merger or consol-
idation, see § 2366 (114).
This section is very similar to the provision of this Code,
§ 2193, relating to the renewal of the charters of corpora-
tions generally.
§ 2366(100.) Application to be published. —
When said application for renewal of charter is
filed, the Secretary of State shall certify one of
the copies thereof and deliver the same to the
bank, and, the same shall be published once a
week for four (4) weeks, in the newspaper in
which are published the sheriff's advertisements
of the county in which the bank is located. Acts
1919, pp. 135, 172.
Editor's Note. — The provisions of this and the three fol-
lowing sections are very similar to §§ 2366 (92) to 2366 (95).
§ 2366(101). Application referred to the su-
perintendent of banks.— Immediately upon filing
the application for renewal, the Secretary of
State shall transmit one copy thereof to the Su-
perintendent of Banks for investigation by him.
Acts 1919, pp. 135, 173.
See editor's note under § 2366 (100).
§ 2366(102.) Examination by and certificate of
the superintendent. — When such application "for
renewal shall have been referred to the Superin-
tendent of Banks, said Superintendent shall make
or cause to be made a special examination to de-
termine the condition of the bank, and if, from
such examination, or otherwise, it shall appear
to him that said bank is in a safe and satisfactory
condition and has complied with the require-
ments of the law and that such renewal of the
charter is proper and has been duly authorized
by proper corporate action, he shall within
thirty (30) days after the application for renewal
shall have been filed with him for examination,
issue, under his hand and official seal, a certificate
approving the renewal of the charter of buch
bank, and shall transmit a copy of such certifi-
cate of approval to the Secretary of State, who
shall enter the same of record, in bis office. The
Superintendent shall also keep of file a duplicate
of said certificate in his own office. If it should
appear to the Superintendent of Banks from the
examination herein provided for, or otherwise,
that the condition of said bank is not safe or sat-
isfactory, or that the renewal of its charter is
otherwise inexpedient, or that said, bank has
failed to comply with the law, or that the appli-
cation for renewal has not been authorized b3r
proper corporate action, the Superintendent shall
notify the Secretary of State that he refuses to
approve the application for renewal of the char-
ter, and in such event the charter shall not be re-
newed by the Secretary of State. Acts 1919, pp.
135, 173.
See editor's note under § 2366 (100).
Constitutionality. — This section does not violate the pro-
visions of the constitution considered in this case. Fite v.
Henson, 157 Ga. 679, 122 S. E. 412.
Effect. — The provisions of this section deny the right to
[ 554]
§ 2366(103)
NATIONAL BANK CONVERTED INTO STATE BANK
§ 2366(108)
individual persons to institute and prosecute actions in
courts of equity for the appointment of receivers for State
banks chartered under the laws of this State, and require
all such suits to be brought by the superintendent of banks
in the name of the State. Fite v. Henson, 157 Ga. 679, 122
S. E. 412.
§ 2366(103). Certificate of publication. — When
the copy of the application for the renewal of the
charter shall have been published as required by
law, the bank shall apply to the Ordinary of the
county in which it is located to certify the fact
of such publication, and the Ordinary shall
certify the fact, which certificate shall be filed
by the bank in the office of the Secretary of State.
Acts 1919, pp. 135, 173.
See editor's note under § 2366 (100).
§ 2366(104). Certificate of renewal to be issued.
When the certificate of the Ordinary to the fact
of the publication of the application for renewal
of charter shall have been filed by the bank in the
office of the Secretary of State, and the certifi-
cate of the Superintendent of banks approving
the application for renewal shall likewise be filed
the same extent as the private bank held and
owned the same. Acts 1919, pp. 135, 175.
§ 2366(107.) Rights of creditors and others.—
The rights of the creditors and depositors of such
private bank shall not be impaired in any manner
by such incorporation, nor shall any liability or ob-
ligation for the payment of any money due or to
become due, or any claim or demand in any man-
ner or for any cause existing against such private
bank be in any manner released or impaired there-
by, and all the rights, obligations and relations of
all the parties, creditors, depositors, and others
shall remain unimpaired by such incorporation.
But such incorporated, bank into which such pri-
vate bank shall be converted shall succeed to all
obligations,' trusts and liabilities and be held
liable to pay and discharge all such debts and
liabilities and to perform all such trusts in the
same manner as though such incorporated bank had
itself incurred the obligation or liability, and no
suit or other proceeding then pending before any
court or tribunal in which such private bank is
thirty (30) years, and the Secretary of State shall
record the application for renewal, the certificate of
approval of the Superintendent of Banks, the cer-
tificate of the Ordinary as to publication, and his
certificate or renewal, in the order named. Acts
1919, pp. 135, 174.
This section is similar to the provisions of § 2194 of this
Code relating to certificate for renewal of charters of cor-
porations generally.
with the Secretary of State, the Secretary of State ■ a party shall be- deemed to have abated or been
shall issue to the bank a certificate under the seal | discontinued by reason of any such incorporation
of the State, renewing its charter for a period of | but the same may be prosecuted to final judg-
ment in the same manner as if such private bank
had not been so converted and the incorporated
bank may be substituted in place of the private
bank by order of the court in which such action,
suit or proceeding may be pending. Such incor-
porated bank shall likewise be subject to be sued
in any court having jurisdiction upon any cause
of action against such converted private bank, in
the same manner as if such cause of action had
originated against such incorporated bank. Acts
SECTION 11. 1919' PP- ]35< 175-
Private Bank Converted into State Bank.
§ 2366(105). Private bank, how incorporated.—
Any person, firm, or voluntary association doing
a banking business in this State may convert
such private bank into a bank as herein defined
by complying with the laws in regard to the in-
corporation of banks as herein prescribed, and in
the event of such incorporation the capital stock
may be paid by a transfer of the assets of such
private bank, provided the live assets of such
bank shall exceed its liabilities by an amount
equal to the amount of the capital stock, such as-
sets to be taken at the true value thereof, and the
Superintendent of Banks shall cause an examina-
tion of said private bank to be made and its as-
sets and liabilities ascertained before authorizing
payment of the capital by a transfer of such as-
sets and before permitting such private bank to
begin business as an incorporated bank. Acts
1919, pp. 135, 174.
As to the status of private banks, see § 2366 (4).
§ 2366(106.) Effect of incorporation.— Upon the
incorporation of any private bank as herein pro-
vided all the assets of every kind and character,
including the real and personal property,
and choses in action, belonging to such
bank, shall ibe deemed to be transferred to
and vested in such incorporated bank with-
out any deed, transfer, or assignment being
executed, and the incorporated bank shall hold
and enjoy the same in the same manner and to
SECTION 12.
National Bank Converted into State Bank.
§ 2366(108.) National bank, how incorporated
as state bank. — Whenever any National Banking
Association organized under the Acts of Con-
gress and located in this State shall under the
provisions of any act of Congress, be authorized
to dissolve its organization as such National
Banking Association, and shall have taken the
action required by such act of Congress to affect
such dissolution, a majority of the directors (in
no event less than five (5) of such dissolved As-
sociation, by authority of a resolution passed by
not less than two-thirds (^3) of the stock-
holders, at a meeting of such stockholders called
for the purpose of taking such action, notice of
which shall have been given to each stockholder
or to the personal representative or heirs at law
of any deceased stockholders, addressed to his
last known residence, not less than ten (10) days
previous to the date of such meeting, or upon the
authority in writing of the owners of two-thirds
(2/z) of the capital stock of such Association, may
apply to the Secretary of State to become incor-
porated under the terms and provisions of this
Act, and upon the filing of such application in the
office of the Secretary of State and. complying
with the law in regard to the incorporation oi
banks as herein prescribed, the stockholders of
such National Banking Association may become
[555 ]
§ 2366(109)
MERGER OR CONSOLIDATION OF BANKS
§ 2366(113)
incorporated as a State Bank. Acts 1919, pp. 135,
176.
§ 2366(109.) Capital stock, how paid. — In the
event of the incorporation of such dissolved
National Banking Association as a State bank
as herein provided, the capital stock may be paid
by a transfer of the assets of such dissolved
National Banking Association, provided the live
assets of such Association shall exceed its liabili-
ties by an amount equal to the amount of the
capital stock, such assets to be taken at the true
value thereof, and the Superintendent of Banks
shall cause an examination of such dissolved Na-
tional Banking Association to be made and its
assets and liabilities ascertained before authoriz-
ing the payment of the capital by a transfer of
such assets and before permitting it to begin busi-
ness as a State bank. Acts 1919, pp. 135, 176.
§ 2366(110.) Effect of such incorporation. —
Upon the incorporation of any dissolved National
Banking Association as herein provided for, all
the assets of every kind and character, including
the real and personal property, and choses in ac-
tion, belonging to such dissolved Association,
shall immediately, by operation of law, and with-
out any conveyance or transfer, be vested in and
become the property of such State bank.
The directors of such dissolved Association at
the time of its dissolution shall be the directors
of the bank created in pursuance hereof until the
first annual election of directors thereafter, and
shall have power to take all necessarjr measures
to perfect its organization and adopt such reg-
ulations concerning its business and management
as may be proper and just and consistent with the
law. Acts 1919, pp. 135, 177.
§ 2366(111.) Rights of creditors and others. —
The rights of the creditors and depositors of any
dissolved National Banking Association that
shall be so converted into a State bank shall not
be impaired in any manner by suc,h conversion,
nor shall any liability or obligation for the pay-
ment of any money due or to become due, or any
claim or demand in any manner or for any cause
existing against such National Banking Associa-
tion, or against any stockholder thereof, be in
any manner released or impaired thereby, and all
the rights, obligations and relations of all the par-
ties, creditors, depositors, and others shall remain
unimpaired by such conversion. But such bank
into which the Association shall be converted
shall succeed to all obligations, trusts and lia-
bilities and be held liable to pay and discharge all
such debts and liabilities and to perform all such
trusts in the same manner as though such bank
into which the Association shall have become
converted had itself incurred the obligation or
liability, and the stockholders of the National
Banking Association shall continue subject to all
the liabilities, claims and demands existing
against them as such at or before such conver-
sion; and no suit, action or other proceeding then
pending before any court or tribunal in which any
Association that may be so converted is a party
shall be deemed to have abated or been discon-
tinued by reason of any such conversion, but the
same may be prosecuted to final judgment in the
same manner as if said conversion had not taken
place, or the bank into which the Association
shall have been converted may be substituted in
the place of any Association so converted by or-
der of the court in which such action, suit or pro-
ceeding may be pending. Such State bank shall
likewise be subject to be sued in any court hav-
ing jurisdiction upon any cause of action against
such Association in the same manner as if such
cause of action had originated, against such State
bank. Acts 1919, pp. 135, 177.
SECTION 13.
Merger or Consolidation of Banks.
§ 2366(112.) Merger or consolidation, how ac-
complished.— Any two or more banks are hereby
authorized to merge one or more of said banks
into another of them, or to consolidate in the fol-
lowing manner:
The respective boards of directors of said
banks may enter into and make an agreement,
under their corporate names and seals,' for the
merger of one or more of said banks into another
of them, or for the consolidation of the contract-
ing banks, prescribing the terms and conditions
thereof, and the mode of carrying such merger
or consolidation into effect, which agreement
shall be subject to the approval of the Superin-
tendent of Banks. Said agreement shall provide
the name that such bank shall have, upon and
after such merger or consolidation, which may be
the name of any one of the banks merged or the
combined names of two or more of the consoli-
dated banks, or such other name as may be
agreed upon, and shall name the persons, not
less than three (3) nor more than twenty-five
(25), who shall constitute the board of directors
of such bank after the merger or consolidation
shall have taken place, and until a new board of
directors shall be elected by the stockholders,
and shall provide for a meeting of the stock-
holders of the merged or- consolidated banks
within thirty (30) days after the merger or con-
solidation, to elect such board of directors, with
such 'temporary provisions for conducting the af-
fairs of the merged or consolidated banks mean-
while, as shall be agreed upon. Acts 1919, pp.
135, 178.
Editor's Note.— Section 2303 of the Code of 1910 allowed
banks to consolidate with the consent of 2/3 of the stock-
holders provided such consolidation would not defeat or de-
fraud creditors in the collection of their claims. This is
the only provision prior to this section authorizing- consoli-
dation. It did not provide for the manner in which the con-
solidation should be made.
§ 2366(113.) Submission of agreement to stock-
holders.— Such agreement for the merger or con-
solidation of two or more banks, after the same
shall have been approved by the Superintendent
of Banks, shall be submitted to the stockholders,
respectively, of each of such banks at a meeting
thereof to be called upon at least ten (10) days
written notice, specifying the time, place, and
object thereof, addressed to each stockholder at
his last known post office address, and, if such
agreement shall be approved at each of such
meetings of the respective stockholders, sepa-
rately or at any adjournment thereof, by the af-
firmative vote of stockholders owning at least
two-thirds (2/3) of the stock, the same shall be
[ 556 ]
§ 2366(114)
MERGER OR CONSOLIDATION OF BANKS
§ 2366(118)
the agreement of such bank. A certified copy of
the proceedings of such meetings, respectively,
signed by the chairman and secretary thereof,
respectively, and under the seals of the banks, re-
spectively, shall be evidence of the holding and
action of such meetings. Such certified copies
shall be filed in the office of the Superintendent
of Banks, and thereupon such banks shall be
merged or consolidated as specified in such
agreement, and the bank into which the other or
others are merged, or the consolidated bank, as
the case may be, shall thereafter have the new
name specified in such agreement, and the pro-
visions of such agreement shall be carried into
effect as therein provided. Acts 1919, pp. 135,
179.
§ 2366(114.) Amendment of Charter. — When
such agreement for merger or consolidation shall
have been submitted to and approved by the
stockholders of the banks respectively, and copies
of the resolutions approving the same shall have
been filed in the office of the Superintendent of
Banks, as hereinbefore provided, the merged or
consolidated bank shall file in the office of the
Secretary of State an application in duplicate,
signed with the name adopted by the said con-
solidated bank and under its corporate seal, in
which it shall state:
1. The names and locations of the banks which
have been merged, or consolidated, with the dates
of their original charters and all amendments
thereto, respectively.
2. The date of the consolidation agreement,
and the dates of the approval thereof by the Su-
perintendent of Banks, and by the stockholders
of the several contracting banks, respectively.
3. The name under which the consolidated
bank proposes to do business.
4. The amount of capital stock of the consoli-
dated bank.
5. The number of its board of directors.
Said bank shall pay to the Secretary of State,
at the time of filing said application, a fee of
twenty-five ($25.00) dollars, to be conveyed by
him into the Treasury of the State.
Immediately upon filing the application, the
Secretary of State shall transmit one copy there-
of to the Superintendent of Banks. When said
application shall have been approved by the Su-
perintendent of Banks and certificate of such ap-
proval filed by him with the Secretary of State,
the Secretary of State, shall issue to the consoli-
dated bank a certificate under the seal of the
State, certifying that the contracting banks have
been merged or consolidated under the name
adopted and with the capital stock in said appli-
cation set forth, which certificate shall be the
charter of the consolidated or merged bank; and
the Secretary of State shall record the applica-
tion, the certificate by the Superintendent of
Banks approving the same, and his certificate, in
the order named. Acts 1922, pp. 66, 67.
Editor's Note. — The provisions of this section are new with
the Act of 1922. As to the amendment of bank charters
generally, see § 2366 (90) ; renewal of bank charters, see §
2366 (99).
§ 2366(115.) Notice of merger or consolidation.
— Notice of the merger or consolidation of said
banks, in the corporate names, respectively, of
the banks so merged or consolidated, shall be
published once a week for four (4) weeks in the
newspaper which publishes the sheriff's advertise-
ments of the county in which said banks so
merged or consolidated are located; and if the
banks so merged or consolidated are in different
counties, such notice shall be published in such
newspaper in each county. Such notice shall
give the name of the bank into which the other or
others shall be merged, or the name of the con-
solidated bank, and the place at which the office
of such merged or consolidated bank shall be lo-
cated, and it shall state that such merged or con-
solidated bank has taken over the assets of the
banks respectively, entering into the consolida-
tion or merger agreement, and has assumed the
liabilities of such banks, including the liability to
depositors. Acts 1919, pp. 135, 179.
§ 2366(116). Surrender of original and issue of
new certificates of stock. — The bank into which
the other or others have been merged, or the
consolidated bank, as the case may be, shall have
the right to require the return of the original
certificates of stock held by each stockholder in
each or either of the banks, and in lieu thereof
to issue new certificates for such number of
shares of the bank into which the other shall have
been merged, or of the consolidated bank, as un-
der the agreement of merger or consolidation the
said stockholder may be entitled to receive. Acts.
1919, pp. 135, 180.
§ 2366(117). Effect of merger or consolidation.
— Upon the merger or consolidation of any banks
in the manner herein provided, all and singular,
the rights, franchise, duties and liabilities, and
the interests of the bank or banks so merged or
consolidated, and all the assets of every kind and
character, including the real and personal prop-
erty and choses in action thereunto belonging,
shall be deemed to be transferred to and vested
in such bank into which the other or others have
been merged or in the consolidated bank, with-
out any deed, transfer or assignment, and said
bank shall hold, enjoy and be subject to the
same in the same manner and to the same extent
as the merged or consolidated banks, respect-
ively, had, held, owned, enjoyed, and was sub-
ject to the same. Acts 1919, pp. 135, 180.
§ 2366(118). Rights of Creditors and others.—
The rights of creditors of any bank that shall be
so merged or consolidated shall not be impaired
in any manner by any such merger or consolida-
tion; nor shall any liability or obligation for the
payment of any money due or to become due, or
any claim or demand in any manner or for any
cause existing against such bank, or against
any stockholder thereof, be in any manner re-
leased or impaired; and all the rights, obliga-
tions and relations of all the parties, creditors,
depositors, and others shall remain unimpaired by
such merger or consolidation. But such bank in-
to which the other or others shall be merged, or
the consolidated bank, as the case may be, shall
succeed to all obligations, trusts, and liabilities,
and be held liable to pay and discharge all such
debts and liabilities and to perform all such trusts
in the same manner as though such bank into
which the other or others shall have become
[557]
§ 2366(119)
VOLUNTARY LIQUIDATION AND DISSOLUTION
§ 2366(125)
merged, or the consolidated bank had itself in-
curred the obligation or liability; and the stock-
holders of the respective banks shall continue
subject to all the liabilities, claims and demands,
existing against them as such at or before such mer-
ger or consolidation; and no suit, action, or other
proceeding then pending before any court or
tribunal in which any bank that may be merged
or consolidated is a party shall be deemed to
have abated or been discontinued by reason of
any such merger, but the same may be prose-
cuted to final judgment in the same manner as if
said bank had not entered into said agreement,
or the bank into which the others shall have been
merged, or the consolidated bank, as the case
may be, may be substituted in the place of any
bank so merged or consolidated by order of the
court in which such action, suit, or proceeding
may be pending. Such bank into which the other
or others have been so merged, or the consoli-
dated bank, shall be subject to be sued in any
court having jurisdiction, upon any cause of ac-
tion against any of the banks so merged or con-
solidated, in the same manner as if such cause of
action had originated against such bank into which
the other or others have been so merged or against
such consolidated bank. Acts 1919, pp. 183, 180.
SECTION 14.
Voluntary Liquidation and Dissolution.
§ 2366(119). Two-thirds vote of stockholders
required. — Any hank may go into voluntary liqui-
dation and be closed, and may surrender its char-
ter and franchise as a corporation to the State by
the affirmative vote of its stockholders owning
two-thirds of its stock, such vote to be taken at a
meeting of the stockholders duly called by res-
olution of the board of directors, written notice
of which, stating the purpose of the meeting,
shall have been mailed to each stockholder, or in
case of death to his legal representative or heirs
at law, addressed to his last known residence at
least ten (10) days previous to the date of said
meeting. Acts 1919, pp. 135, 181.
§ 2366(120). Approval of superintendent. —
Whenever stockholders shall by such vote at a
meeting regularly held for the purpose, notice of
which shall have been given as herein provided,
decide to liquidate said bank, a certified copy of
all the proceedings of the meeting at which
said action shall have been taken, verified
by the oath of the president and cashier,
shall be transmitted to the Superintendent of
Banks for his approval. If the Superintendent
of Banks shall approve the same, he shall issue
to the said bank, under his hand and official seal,
a permit for such purpose. No such permit shall
be issued by the Superintendent of Banks until
said Superintendent shall be satisfied, that pro-
vision has been made by such bank to satisfy and
pay off all depositors and all other creditors of
such bank. If not so satisfied, the Superintend-
ent shall refuse to issue a permit and shall be au-
thorized to take possession of said bank and its
assets and business and hold the same and liqui-
date said bank in the manner in this Act pro-
vided. Acts 1919, pp. 135, 182.
§ 2366(121). Notice of liquidation. — In the
event the Superintendent of Banks shall approve
the voluntary liquidation of said bank, the direc-
tors shall cause to be published in the newspaper
in which the sheriff's advertisements of the
county in which the bank is located, a notice that
the bank is closing up its affairs and going into
liquidation, and notify its depositors to withdraw
their deposits and its creditors to present their
claims for payment. Acts 1919, pp. 135, 182.
§ 2366(122). Examination of and reports by
liquidating bank.— When any bank shall be in
process of voluntary liquidation, it shall be sub-
ject to examination by the Superintendent of
Banks and shall furnish such reports from time
to time as may be called for by the Superin-
tendent. Acts 1919, pp. 135, 182.
§ 2366(123). Unpaid deposits and claims to be
provided for. — After paying all the creditors of
said bank and all depositors whose claims have
been presented and allowed, the directors shall
cause to be deposited in such bank as may be
designated Iby the Superintendent of Banks, to
the creditor of the Superintendent, an amount
sufficient to cover all unpaid and unclaimed de-
posits, and all other claims against said bank
which for any reason may not have been paid.
Such sum shall be held by the Superintendent in
the same manner as deposits made by him to
cover unpaid deposits of banks liquidated by him
or under his direction. Acts 1919, pp. 135, 183.
§ 2366(124). Remaining assets distributed to
stockholders. — After paying all debts against said
bank and all amounts due to the depositors there-
of and after depositing a sum sufficient to pay
any unclaimed or unpaid deposits or other valid
claims as herein provided, and after deducting
the expenses of liquidation, the remaining assets
shall be distributed pro rata among the stock-
holders in proportion to the number of shares held
by each respectively. Acts -1919, pp. 135, 183.
§ 2366(125). Surrender of charter. — When all
amounts due by said bank shall have been paid or
provided for as herein provided and all remain-
ing assets shall have been distributed to the stock-
holders, the bank may file in the office of the Sec-
retary of State an application, in triplicate, signed
with its corporate name and under its corporate
seal, in which it shall state the name of the bank,
the place where it is located, the date of its orig-
inal charter, and of all amendments thereto, and
the fact that all debts due by the bank have been
paid or provided for, and that its assets have been
distributed to its stockholders, and that it desires
to surrender its charter and franchise to the State.
On filing such application, the bank shall pay to
the Secretary of State a fee of $25.00 to be cov-
ered by him into the State Treasury. Said bank
shall also file with said application a certified copy
of the resolution of the stockholders approving
the surrender of such charter and franchises,
which resolution must be adopted by an affirma-
tive vote of not less than two-thirds (2/3) of all
the stockholders at a meeting called for the pur-
pose of taking such action as herein provided.
Acts 1919, pp. 135, 183.
Editor's Note. — By § 2243 of this Code it is provided that
a corporation may surrender its franchise to the state but
[558 ]
§ 2366(126)
FORFEITURE OF CHARTER
§ 2366(133)
no provision is made as to how such surrender should be
made or who should accept it. Prior to this section the sur-
render must have been accepted by the legislature. For a
discussion of surrender of charters, see White v. Davis, 134
Ga. 274, 67 S. E. 716. This section providing for the sur-
render of charters is very similar to the provisions of the
Act of 1910. By the Act of 1910, § 2823 (2) of this code, a
method of surrender was provided for those corporations
created by the superior court.
§ 2366(126). Application to be published. —
When the said application to surrender the char-
ter is filed, the Secretary of State shall certify one
of the copies thereof and deliver the same to the
bank, and the same shall be published by the bank
in the newspaper in which the sheriff's advertise-
ments of the county in which the bank is located
are published, once a week for four weeks. Acts
1919, pp. 135, 184.
§ 2366(127). Application referred to superinten-
dent of banks. — Immediately upon the filing of the
application to surrender the charter, the Secretary
of State shall transmit one copy thereof to the
Superintendent of Banks for investigation by him.
Acts 1919, pp. 135, 184.
§ 2366(128). Examination by and certificate of
superintendent. — When such application to surren-
der charter shall have been referred to the Super-
intendent of Banks, the said Superintendent shall
immediately investigate or cause an investigation
to be made, and shall satisfy himself that the sur-
render of such charter and the dissolution of such
bank may be allowed without injustice to any
stockholder, or to any person or corporation hav-
ing any claim or demand of any character against
said bank, and that all assets of said bank have
been distributed and all depositors and creditors
paid or properly provided for, and that the sur-
render of the charter and franchises has been au-
thorized by proper corporate action, and that all
requirements of law have been complied with. If
so satisfied the Superintendent of Banks shall
within thirty (30) days after the application for
surrender of charter shall have been filed with him
for examination, issue under his hand and official
seal a certificate approving the application, and
shall transmit a copy of such certificate of ap-
proval to the Secretary of State, who shall enter
the same of record in his office. The said Super-
intendent shall also keep of file a duplicate of said
certificate in his own office. If the Superinten-
dent shall not be satisfied that the surrender of
the charter as proposed is proper and expedient
or that the law for such cases made and provided
has been fully complied with, he shall within thirty
(30) days after the filing of the copy of said ap-
plication with him, notify the Secretary of State
that he refuses to approve the application, and in
such event no order shall be granted by the Sec-
retary of State dissolving the bank, or authorizing
the surrender of its charter. Acts 1919, pp. 135,
184.
§ 2366(129). Certificate of publication. — When
the copy of the application to surrender the char-
ter shall have been published as required by law
the bank may apply to the Ordinary of the county
in which it is located to certify the fact of such
publication, and the Ordinary shall certify the
fact, which certificate shall be filed by the bank
in the office of the Secretary of State. Acts 1919,
pp. 135, 185.
§ 2366(130). Order dissolving bank.— When the
certificate of the Ordinary to the fact of the pub-
lication of the application to surrender the char-
ter shall be filed by the bank with the Secretary
of State, and the certificate of the Superintend-
ent of Banks approving the application shall like-
wise be filed with the Secretary of State, the Sec-
retary of State shall pass an order under the seal
of the State accepting the surrender of the char-
ter and franchises and dissolving the bank, and
the Secretary of State shall record the applica-
tion, the certificate of approval of the Superin-
tendent of Banks, the certificate of the Ordinary
as to the publication, and his order accepting the
surrender of the charter and franchises and dis-
solving the bank, in the order named; and the said
bank shall thereupon be finally dissolved for all
purposes whatsoever. Acts 1919, pp. 135, 185.
SECTION 15.
Forfeiture of Charter.
§ 2366(131). Causes of forfeiture.— Bank char-
ters are subject to forfeiture on the same general
ground as are those of other corporations, and
also:
1. For the violations of any of the provisions of
their charters.
2. For the violation of any obligation imposed
by law.
3. Whenever it is demanded by specific enact-
ment.
4. For refusal or neglect for a period of thirty
(30) days, after the written order of the Super-
intendent of Banks, to comply with any require-
ment lawfully made upon it by such Superintend-
ent. Acts 1919, pp. 135, 185.
Editor's Note. — The causes for forfeiture set out in this
section were provided by the Code of 1910, the first three
being from § 2249 and the fourth from § 2347.
§ 2366(132). Proceedings to forfeit.— The Su-
perintendent of Banks in the name of the State is
authorized to institute quo warranto or other ap-
propriate proceedings to vacate and forfeit the
charter of any bank, where the bank has done
or omitted any such act or acts as under the law
authorizes a forfeiture of its charter. Acts 1919,
pp. 135, 186.
Editor's Note. — Under the prior law, § 2350 of the Code
of 1910, the charter of a bank was forfeitured by the pro-
ceedings instituted by the attorney-general. This seems to
be the only method providing for such forfeiture by the
prior law.
§ 2366(133). Liquidation where charter forfeited.
— Where the charter of any bank shall be for-
feited, the Superintendent of Banks shall take
charge of the business and assets of such bank
and proceed to liquidate it in the same manner
as is herein provided in cases where the Super-
intendent takes charge of a bank. Acts 1919, pp.
135, 186.
Editor's Note.— Prior to this section it was a duty of a
receiver who was appointed by the court to liquidate the
assets of a bank where the charter was forfeitured. See
§§ 2350 and 2351 of the Code of 1910.
Reviving Charter. — Where, under this section the super-
intendent of banks of the State of Georgia took charge of
an insolvent bank, and pending the winding up of the af-
fairs of the bank the charter of the bank expired, such
charter could be revived by complying with the provisions
of § 2823 (9) of this Code. Garrison v. Marietta Trust,
etc., Co., 155 Ga. 562, 118 S. E. 48.
From this section it is evident that it clearly was the in-
[ 559]
§ 2366(134)
POWERS OF BANKS
§ 2366(138)
tention of the legislature to authorize the superintendent
of banks to take charge of and to liquidate the affairs of a
bank, even where the charter of a bank had been for-
feited. Garrison v. Marietta Trust, etc., Co., 155 Ga. 562,
569, 118 S. E. 48.
§ 2366(134). No suits for forfeiture or liquida-
tion except by superintendent. — No suit to for-
feit the charter of any bank, or for the liquidation
of any bank, or for the appointment of a receiver
of any bank, shall be instituted by any person
except by and through the Superintendent of
Banks in the name of the State. Any person shall
have the right to submit to the Superintendent
of Banks any facts which under the law would au-
thorize the forfeiture of the charter of a bank, or
any facts which would authorize the liquidation of
a bank, or the appointment of a receiver therefor,
and on such submission being made, it shall be
the duty of the Superintendent of Banks to in-
vestigate, and if on such investigation, he ascer-
tains that the facts are such as will justify action
for forfeiture of the charter, or for the liquidation
of the bank, or for the appointment of a receiver,
it shall be the duty of the Superintendent to take
appropriate action in the premises. Acts 1919, pp.
135, 186.
SECTION 16.
Mandamus against Superintendent.
§ 2366(135). Superintendent subject to man-
damus.— In the event the Superintendent of Banks
should refuse to issue any permit authorizing the
incorporation of any bank, or the amendment, re-
newal or surrender of the charter of any bank, or
authorizing any bank to begin business, or any
other permit, authority or certificate required to
be given or furnished by him before any act or
thing shall be permitted or done, or should refuse
to do any act or thing authorized or required by
this Act to be done, the person or persons af-
fected by such failure or refusal, or the bank so
affected, may institute appropriate proceedings in
the nature of a mandamus against the Superin-
tendent in the Superior Court of the county in
which such bank is sought to be incorporated or
have its charter amended-, renewed or surrendered,
to compel him to issue such permit or authority,
or to do any such act or thing authorized or re-
quired to be done hereunder, which proceeding
shall be tried as in other cases of mandamus.
Service of such proceeding shall be made on the
Superintendent of Banks by second original as
now prescribed by law. Acts 1919, pp. 135, 187.
See note of Manley v. McLendon, 158 Ga. 659, 124 S. E-
138, under § 2366 (80).
Editor's Note. — Under the prior law the attorney -general
could institute proceedings only at the instance of the gov-
ernor. As to appropriate procedure for mandamus proceed-
ing, see §§ 5447, 6163 of this Code.
§ 2366(136). Trial and judgment. — On the trial
of any such cause the Superintendent shall have
the right to introduce evidence to sustain or tend-
ing to sustain his action or refusal to act in the
premises, and if from the evidence in the case the
court is of the opinion that such permit, or au-
thority, or certificate has been wrongfully or im-
properly refused or withheld by the Superintend-
ent, and that the facts and circumstances author-
ize and require the granting of such permit, au-
thority, or certificate, or that the Superintendent
has wrongfully or improperly refused to do any
act or thing authorized or required by this Act to
be done, and that the same should be done, the
court shall render an order, judgment or decree
directing the Superintendent of Banks to issue
such permit, authority or certificate, or to do such
act or thing, and thereupon the Superintendent
shall issue or do the same, and may state in any
permit, authority or certificate issued by him under
such order, that the same is done by order of the
court. Acts 1919, pp. 135, 187.
§ 2366(137). Exceptions. — A bill of exceptions
may be sued out 'by either party who may be dis-
satisfied with the judgment, and the cause may
be carried to the Supreme Court as in other cases
of mandamus proceedings. Acts 1919, pp. 135,.
188.
SECTION 17.
Powers of Banks.
§ 2366(138). General powers of banks enumer-
ated.— A bank organized under this Act shall have
power:
For a general digest treatment of this section see 2
Cum. Dig. 591, 2 Enc. Dig. 251.
Editor's Note. — Prior to the constitution, § 6446, banks
were incorporated by special acts. The powers of each
bank varied greatly. Reference must be had to the char-
ters of banks created before the time of the adoption of
that section (Acts of 1892), in order to determine the power
of the bank. Since that time the law as found in § 2266 oi
the Code of 1910 has been of force except that part between
1892 and 1893 during which time the act of 1890-91, vol. 1, p.
172 was of force.
The powers set out in this section with the exception of
number nine are the same as those found in § 2266 of the
Code of 1910 with the exception of a few minor changes ~
The ninth power was added by this act.
To § 4 the power to appoint employees was added to
that of the appointment of officers and agents. To number
6 was added "subject to restriction and limitation herein
prescribed;" to number 7 to "issue and sell acceptances,"
otherwise they remain the same.
It should be noticed that by virtue of the power granted
in § 2271 of the Code of 1910 the secretary of state is au-
thorized to amend the special charters granted under the
special acts prior to the constitutional amendment men-
tioned above so as to incorporate any of the privileges
provided by general law.
1. To have continual succession for the term of
thirty (30) years, with the rights of renewal
herein provided for, with all corporate powers and
privileges herein granted.
2. To sue and be sued.
As to powers granted to corporations generally, see §
2216.
3. To have and use a common seal, and at pleas-
ure to alter the same.
As to powers granted to corporations generally, see §
2216.
4. To appoint such officers, agents, and em-
ployees as the business of the bank may require,
prescribe their duties, and fix their compensation
as may be provided by the by-laws.
5. To make such by-laws as may be necessary
or proper for the management of its property and
the regulation of its affairs.
As to powers granted to corporations generally, see 5
2216.
6. To hold, purchase, encumber, dispose of, and
convey such real and personal property as may
be necessary for its uses and business, subject to
the restrictions and limitations herein prescribed.
As to powers of corporations generally to receive don:i-
[560 ]
§ 2366(139)
LIABILITY OF STOCKHOLDERS
§ 2366(142)
tions by gift or will or to purchase and hold property, etc.,
see § 2216.
7. To discount bills, notes or other evidences of
debt; to receive and pay out deposits, with or
without interest; to receive on special deposit,
money, bullion, foreign coin, stocks, bonds, or
other securities, or other property; to buy and
sell foreign or domestic exchange or other ne-
gotiable paper; to issue and sell acceptances; to
lend money upon personal security, or upon
pledges of bonds, stocks, or securities; to take
and receive security, by mortgage or otherwise, on
property real or personal.
Expenditures on Property Acquired. — Where a banking
corporation acquires possession of property, either by lien
or purchase, for the payment of a debt due to it, and ex-
pends money on it or furnishes supplies either for its pre-
servation or to carry on its business in which such prop-
erty is employed, with a view to rendering it productive,
in order to satisfy the debt the bank holds against the
former owner of the property, it is not chargeable with
exceeding its corporate powers by engaging in a business
beyond the scope and purpose of its creation. Reynolds v.
Simpson, 74 Ga. 454.
Abuse of Power a Question of Fact. — Whether a bank
used it's powers of collecting the debts as a pretext for
embarking in a business foreign to its purpose is a jury
question. Reynolds v. Simpson, 74 Ga. 454.
Deposits. — For a further treatment, see 2 Cum. Dig. 628,
2 Enc. Dig. 275.
Same — Lending Money on Deposit. — "The lending of
money on deposit for a customer and depositor by a bank
in this State, at his instance and as his agent, is not nec-
essarily ultra virqs. An agency to lend the money of one
of its customers in his name and in his behalf in good
faith, and using ordinary diligence as an agent, is within
the range of the legitimate business of a bank, unless ex-
pressly prohibited by its charter, and is an incidental
power of the bank when deemed expedient to be exercised
in the course of its business." Morgan County Bank v.
Poullain, 157 Ga. 423, 121 S. E- 813; S. C, 32 Ga. App. 10.
123 S. E. 29; Oconee County Bank v. Marshall, 159 Ga.
515, 518, 126 S. E. 369.
Same — Deposit, for Special Purpose. — See Cooper v. Nat.
Bank, 21 Ga. App. 356, 364, 91 S. E. 611.
Discounts, Loans. — For a full treatment, see 2 Cum. Dig.
649, 2 Enc. Dig. 289.
8. To increase or decrease its capital stock in
the manner herein provided.
9. To increase or decrease the number of its di-
rectors in the manner herein provided. Acts 1919,
pp. 135, 188.
SECTION 18.
Liability of Stockholders.
§ 2366(139). Stockholders' liability, extent of.
— A bank incorporated under this Act shall be re-
sponsible to its creditors to the extent of its cap-
ital and its assets; and each stockholder shall be
individually liable for all the debts of said bank
to the extent of the balance remaining unpaid on
his or her shares of stock; and said stockholders
shall be further and additionally individually lia-
ble, equally and ratably (and not one for an-
other) to depositors of such bank for all moneys
deposited therein, in an amount equal to the face
value of their respective shares of stock; it be-
ing the true intent and purpose of this section, that
as to depositors for all moneys deposited with
said bank there shall be an individual liability upon
each stockholder of such bank, over and beyond
the par value of his or her original shares of
stock equal in amount to the face value of said
shares of stock; provided that said liability of the
stockholders shall not prevent depositors from
having equal right with all other creditors upon
capital, property and assets of said bank, pro-
vided further that the funds realized from the
stockholders' liability, as herein provided for, shall
not be distributed to those depositors holding a
preference or a priority given them by law or
otherwise nor to any depositor holding assets of
said bank pledged as security for said deposit
except to the extent of the amount of the excess
of said deposit over the value of such security,
and this provision shall apply, irrespective of
whether the bank was or was not incorporated
under this Act. Acts 1925, pp. 119, 133.
Editor's Note The amendment of 1925 added the last
proviso to this section.
Prior to 1893, § 2770 of the Code of 1910, there was no
general law of this state regulating the individual liability
of stockholders and banks. Whether such liability ex-
isted depended upon the provisions of charters in the
given case. See editor's note under § 2366 (138). And see
Wheatley v. Glover, 125 Ga. 710, 716, 54 S. E. 626, and cases
cited for enumeration of a number of such bank charters.
Where such stockholders were liable under the charter,
such liability could be enforced by the receivers under §
2249. See Harris v. Taylor, 148 Ga. 663, 98 S. E. 86.
Section 2270 of the Code of 1910 which is a codification of
the law of 1893 is very similar to this section.
§ 2366(140). Exception for trustees and other
fiduciaries. — Persons holding stock as executors,
administrators, guardians, or trustees shall not be
personally subject to any liabilities as stockhold-
ers; but the estates and funds in their hands shall
be liable in like manner and to the same extent
as the testator, intestate, ward, or person inter-
ested in such trust fund would be, if living and
competent to act and hold the stock in his own
name; Provided, that nothing herein contained
shall relieve any executor, administrator, guard-
ian or trustee from individual liability as a stock-
holder upon any unauthorized subscription for or
investment in bank made by such executor, ad-
ministrator, "guardian or trustee. Acts 1919, pp.
135, 189.
§ 2366(141). Liability of stockholder after trans-
fer of stock. — Whenever a stockholder in any bank
is individually liable under the charter, and shall
transfer his stock, and have such transfer entered
upon the books of the bank or give to the bank
written notice thereof, he shall be exempt from
such liability by such transfer, unless such bank
shall fail within six (6) months from the date of
the entry of such transfer, or from the delivery
of such notice to the bank. Acts 1919, pp. 135.
190.
Editor's Note. — This section is similar to § 2247.
Reasonable Construction. — The construction of this sec-
tion and of § 2270 should be neither liberal nor strict, but
reasonable. Newton v. Bennett, 159 Ga. 426, 126 S. E. 242.
No Release from Liability. — A stockholder in a bank
chartered under the laws of this State, who, with knowl-
edge of the insolvency of the bank, transfers his stock to
an irresponsible person, with the intent to avoid the liability
of stockholders to depositors in such bank, is not released
from such liability by such fraudulent transfer. Newton
v. Bennett, 159. Ga. 426, 126 S. E. 242.
Such a transfer is a fraud against both existing and sub-
sequent depositors, and does not exempt a transferring
stockholder from liability to subsequent depositors. New-
ton v. Bennett, 159 Ga. 426, 126 S. E. 242.
Allegation of Insolvency. — An allegation that a bank, at
the time of transfers of its stock by a stockholder, ap-
peared to have been insolvent and in an unsound condition,
is a sufficient allegation that the bank was in fact insolvent
at such time, in the absence of a special demurrer raising
the uoint that it was not sufficient. Newton v. Bennett,
159 Ga. 426, 126 S. E. 242.
§ 2366(142). Liability when bank fails;— The
stockholder in whose name the capital stock
[561]
§ 2366(143)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(150)
stands upon the books of such bank at the date
of its failure, shall be primarily liable to respond
upon such individual liability; but upon proof
made that any stockholder at the date of the fail-
ure is insolvent, recourse may be had against the
person from whom such insolvent stockholder re-
ceived his stock, if within a period of six (6)
months prior to the date of the failure of such
bank. Acts 1919, pp. 135, 190.
Editor's Note. — This section is almost identical with §
2248 nf this Code. See the annotations to that section.
§ 2366(143). Failure of bank defined. — A bank
shall be deemed to have failed within the pur-
view of this Act whenever such bank shall have
become insolvent and its assets and business shall
have been surrendered to or taken possession of
by the Superintendent of Banks. Acts 1919, pp.
135, 190.
§ 2366(144). Premature organization. — Persons
who organize a bank and transact business in its
name before the minimum capital stock under
this Act has been subscribed for and before a
permit has been issued by the Superintendent of
Banks authorizing the transaction of business in
the name of such bank, are jointly and severally
liable to creditors to make good such minimum
capital stock with interest; and liability under
this section shall be enforced as hereinafter pro-
vided. Acts 1919, pp. 135, 190.
Editor's Note. — This section is similar but not identical
with § 2220 of this Code. See the annotations to that sec-
tion.
§ 2366(145). Liability of stockholders or incor-
porators as assets. — The individual liability of
stockholders and that of persons doing business
in the name of a bank before the minimum cap-
ital stock is subscribed and before a permit has
been issued by the Superintendent of Banks au-
thorizing the bank to begin business, shall be as-
sets of such bank to be enforced only by and
through the Superintendent of Banks. Acts 1919,
pp. 135, 190.
For the corresponding provision of the general corpora-
tion law, see § 2249.
§ 2366(146). Collateral liability not affected by
dissolution. — The surrender or forfeiture of a char-
ter of any bank, or its dissolution for any cause,
shall not in any manner affect any collateral or
ultimate or other liability legally incurred by any
of its stockholders, directors or officers. Acts
1919, pp. 135, 191.
This section is identical to § 2246. See notes under that
section.
SECTION 19.
Regulation of the Business of Banking.
§ 2366(147). Board of directors, number and
election. — The affairs of each bank shall be man-
aged by a board of not less than three (3) nor
more than twenty-five (25) directors who shall be
elected by the stockholders at a meeting to be
held at any time before the bank is authorized by
the Superintendent of Banks to commence the
business of banking, and afterwards at meetings
to be held annually at such time as may be fixed
by the by-laws of the bank. The directors shall
hold office for one (1) year and until their suc-
cessors are elected and have qualified. A bank,
at any annual meeting of the stockholders for the
election of directors, provided notice thereof be
given in the notice of the annual meeting, may, by
a majority vote of all the stockholders of such
bank, fix or change by resolution the number of
directors, provided the number of directors shall
not be less than three (3) nor more than twenty-
five (25), which number when so fixed shall be
the lawful number of directors of such bank until
again changed in like manner. Certified copies
of all resolutions fixing or changing the number
of directors under this section shall be immedi-
ately filed with the Superintendent of Banks.
Acts 1919, pp. 135, 191.
Cross References. — For a general treatment of directors,
see 2 Cum. Dig. 615, 2 Enc. Dig. 268. For a similar pro-
vision of the old law, see § 2302 of the Code of 1910. As
to qualifications of directors under the old law see § 2267.
§ 2366(148). Qualification of directors. — Every
director of a bank having a capital stock of Fif-
teen Thousand ($15,000.00) Dollars or more and
not exceeding Fifty Thousand ($50,000.00) Dol-
lars, must own in his own right at least two (2)
shares of such stock; upon which all installments
which are due shall have been fully paid, and
every director of a bank having a capital stock
of more than Fifty Thousand ($50,000.00) Dol-
lars, must so own at least five (5) shares of the
capital stock of the bank of which he is a direc-
tor. Any director who ceases to be the owner
of the number of shares herein required or who
fails to pay any installment thereon when the same
becomes due, or who becomes in any other man-
ner disqualified, shall thereby vacate his place as
a member of the board. Acts 1919, pp. 135, 191.
§ 2366(149). Oath of directors. — Each director,
when elected, shall take an oath that he will, so
far as the duty devolves upon him, diligently and
honestly administer the affairs of the bank, and
that he will not knowingly violate, or willingly
permit to be violated, any of the provisions of
law applicable to such bank or any of the by-
laws thereof; and that he is the owner in good
faith and in his own right, of the number of shares
of stock required by this Act, standing in his own
name on the books of the bank. Such oath shall
be subscribed by the director making it, and cer-
tified by the officer before whom it is taken, and
shall be immediately transmitted to the Superin-
tendent of Banks, and filed and preserved in his
office. Acts 1919, pp. 135, 192.
§ 2366(150). Meeting of the board of directors.
— The board of directors shall hold regular meet-
ings at such times as may be fixed by the by-
laws, at least once each month, and shall at all
times be subject to call by the president or by
any two members of the board. A majority of
the board of directors shall constitute a quorum
for the transaction of business. Correct written
minutes of all meetings shall be kept in well
bound permanent books kept for that purpose, and
the minutes of each meeting shall be signed by
the chairman and secretary thereof, and shall re-
cord the names of the directors present at such
meeting. At each meeting the minutes of the pre-
ceding meeting shall be read, corrected, and ap-
proved. The minute book shall be submitted to
the Examiner at each of their semi-annual exam-
inations, and shall be examined, and the fact of
such examination shall be noted in the Examiner's
[562]
§ 2366(151)
REGULATION OF THE' BUSINESS OF BANKING
§ 2366(154)
report, and in the minute book. Acts 1919, pp.
135, 192.
For the requirement of meetings under the old law, see
§ 2302 of the Code of 1910.
§ 2366(151). Semi-annual examinations by direc-
tors.— It shall be the duty of the board of direc-
tors of every bank, at least once in each six (6)
months, to count the cash and examine fully into
the books, papers, and affairs of the bank of which
they are directors, and particularly into the loans
and discounts thereof, with the special view of as-
certaining the value and security thereof, and the
collateral security, if any, given in connection
therewith, and into such other matters as the Su-
perintendent of Banks may require. Such direc-
tors may conduct such count and examination
by a committee of at least three (3) of its mem-
bers; and shall have the power to employ certi-
fied public accountants, or other expert assistance
in making such examinations, if they deem the
same necessary. Within ten (10) days after the
completion of each of such examinations, a report
in writing thereof, sworn to by the directors mak-
ing the same, shall be made to the board of direc-
tors, which report shall be spread upon the min-
utes of said board; and the original thereof shall
be placed on file in said bank, and a duplicate
thereof filed with the Superintendent of Banks.
Provided, howeyer, that in lieu of the semi-annual
examination of the directors, such semi-annual ex-
amination may be made by accountants, approved
by the Superintendent of Banks; and provided, that
any bank which fails to transmit to the Superin-
tendent of Banks, within ten (10) days after the
completion of the same, a copy of the report made
by such board of directors or such accountants
shall be subject to the same penalty as is pro-
vided by § 2366(44) for failure to make and trans-
mit its report in response to call of the Superin-
tendent of Banks. Acts 1919, pp. 135, 193; 1922, p.
67.
For the requirement of meetings under the old law, see
§ 2302 of the Code of 1910.
§ 2366(152). Report of examination, what must
contain. — Such report shall contain statements in
detail (1) of the assets and liabilities of the bank
examined, as shown by the books, together with
any deductions from the assets or additions to the
liabilities which such directors or committee after
such examination may determine to make; (2) of
loans, if any, which in their opinion are worthless
or doubtful, together with their reasons for so re-
garding them; (3) of loans made on collateral se-
curity which in their opinion are insufficiently se-
cured, giving in each case the amount of the loan,
and the name and market value of the collateral,
if such collateral has any market value, and if not
its actual value as nearly as can be determined;
(4) of all overdrafts and separately of overdrafts
which are considered worthless or doubtful, or
which have been made without authority, with the
name of the officer or employee making or ap-
proving the same; (5) of all past due paper; (6)
of all demand loans upon which no interest has
been paid within the last preceding six (6) months;
(7) of all loans in excess of the amount author-
ized herein to be made; (8) of all loans made to
the officers, agents, employees, and directors of
the bank, with the securities held therefor; and of
all loans to firms or corporations in which the
officers, agents, employees, or directors of the
bank are interested; (9) and of all such other
matters and things as may affect the solvency or
soundness of the bank. No report shall be held
or considered as complying with the provisions of
this section unless it shows affirmatively the ex-
istence or non-existence of all the items concern-
ing which statements are required. Said direc-
tors or such committee shall also in said report
make recommendations to the board as to the
manner of conducting business by the bank, call-
ing attention to any matters which in their opin-
ion are unauthorized or improper, and suggesting
any changes or improvements in the method of
conducting the business or handling the affairs of
the bank which, in their opinion, will be an im-
provement upon the system in operation or tend
in any way to the safety or soundness of the
bank. Acts 1919, pp. 135, 193.
For the requirement of meetings under the old law, see
§ 2302 of the Code of 1910.
§ 2366(153). Action on report. — The board of
directors at the meeting at which such report of
the semi-annual examination is read shall, by res-
olution entered on the minutes, require that all
debts due to the bank, which are past due for a
period of one year and which are not amply se-
cured, shall be collected, placed in suit or charged
to profit and loss; that all past due interest
shall be collected upon any note upon which no
such interest has been paid within the last pre-
ceding twelve (12) months, or that said note shall
be collected, put in suit, or charged to profit and
loss; and that all assets or claims in favor of the
bank, which in the opinion of the directors are
worthless or uncollectible, shall also be charged
to profit and loss and not included in the list of
assets of the bank. Said board shall at such
meeting also require that all loans in excess of
the amount herein authorized to be made shall be
reduced at once so as to bring them within the
proper amount.
A certified copy of the resolutions of the board
acting on the matters brought to their attention in
the report of the semi-annual examination shall be
filed with the Superintendent of Banks within ten
(10) days after said meeting shall have been held.
Acts 1919, pp. 135, 194.
For the requirement of meetings under the old law, see
§ 2302 of the Code of 1910.
§ 2366(154). Failure to comply with preceding
section, result of. — In the event the board of di-
rectors of any bank should fail to make an ex-
amination every six (6) months, the Superintend-
ent of Banks shall, by an order under his hand and
official seal, addressed to the president of the bank,
require that a meeting of the board of directors
shall be called immediately and that the examina-
tion shall be made within ten (10) days after such
special meeting of the board, and if such meeting
be not so held and such examination made within
said time and report thereof made and submitted
to the Superintendent of Banks, the said Super-
intendent shall be authorized to take charge of the
bank as in other cases herein provided for wilful
refusal to obey the lawful orders of the said
Superintendent. If it shall appear from the re-
port of such examination that the bank is carrying
as an asset any worthless paper or other prop-
erty, or that any assets should be charged to profit
[563]
§ 2366(155)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(159)
and loss and not included in the assets of said
bank, and the directors at the meeting aforesaid
should fail to order such assets charged to profit
and loss, or if the Superintendent of Banks shall
ascertain from any examination or otherwise that
any bank continues to carry as assets any worth-
less paper or other property which should be
charged to profit and loss, the Superintendent
shall order the bank to collect or charge or [to]
profit and loss all such worthless assets at once, and
upon failure to comply with such order, may take
possession of such bank as in other cases pro-
vided. Acts 1919, pp. 135, 195.
For the requirement of meetings under the old law, see
§ 2302 of the Code of 1910.
§ 2366(155). Officers. — The board of directors
at their first meeting after the annual election
shall elect one of their number president. They
shall also elect one or more vice-presidents, a cash-
ier, and such other officers and agents as may be
provided by the by-laws or as may be required for
the prompt and orderly discharge of the business
of the bank. Immediately upon their election, a list,
giving the names and addresses of the officers
elected, certified under the seal of the bank, shall
be transmitted to the Superintendent of Banks
and be kept on file by him. The Superintendent
of Banks shall be notified immediately of any
changes in the officers of the bank occurring after
the annual election. Any bank failing to transmit
to the Superintendent of Banks a list of officers
elected at the annual meeting, or any changes
which may occur in said list, shall be subject to
the same penalty as is provided in Section 2366(44)
for failing to transmit its report made subject to
call of the Superintendent of Banks. Acts 1919,
pp. 135, 195; 1922, pp. 67, 68.
Cross References.— See note under § 2366 (147). As to
the liability of corporations generally for the election of
their officers, see § 2225; of banks generally, see 2 Cum. Dig.
615, 2 Enc. Dig. 265. As to duties of cashier, see, 2 Cum.
Dig. 617, 2 Bnc. Dig. 27. As to powers of presidents, see
2 Cum. Dig. 617, 2 Enc. Dig. 269. As to liability of officers
and agents, see 2 Cum. Dig. 619.
§ 2366(156). Bonds of officers. — The board of
directors shall require the cashier and any and all
other officers and employees, having the care,
custody, control, or handling of any of the funds
of the bank, to give bond with a regular incorpo-
rated surety company, qualified to do business in
the State of Georgia, as surety, in such amount as
the board shall fix, the premium on such bond to
be paid by the bank. Such bonds shall be held
by such custodian as the board of directors may
designate. The amount of the bonds of the cash-
ier and other officers and the conditions thereof
shall be subject to the approval of the Superin-
tendent of Banks. Acts 1919, pp. 135, 196; 1920,
pp. 102, 107; 1922, p. 68.
Editor's Note.— This section is very similar to § 2304 of
the Code of 1910, however, under that section the surety
did not have to be a surety company nor did the bank have
to pay the premium. The amendment of 1920 made this
section applicable to employees having any control. The
1922 amendment added the last sentence of the section.
§ 2366(157). Borrowing for personal use by of-
ficers and employees prohibited except by permis-
sion of the directors. — No officer, director, agent,
or employee of any bank shall use or borrow
directly or indirectly for himself, or for any firm
or partnership of which he is a member, any
money, or other property belonging to any bank
[5
of which he is such officer, director, agent or em-
ployee without the express authority and per-
mission previously obtained of a majority of the
directors or of the members of a committee of
the board of directors authorized to act, which
permission shall be evidenced by the written sig-
natures of such directors, the borrow.er not voting
or participating in any way in passing upon any
loan or discount in which he may be interested.
Acts 1919, pp. 135, 196; 1920, pp. 102, 108.
As to violation of this section, see § 211 (22) P. C.
Editor's Note. — Section 2236 of this Code is very similar
to this section. The amendment of 1920 made the section
applicable to directors.
§ 2366(158). Loans to officers.— No banks shall
lend an}' officer, director, agent, or employee any
amount whatever except upon good collateral or
other ample security; and no such loan shall be
made until after it has been approved by a ma-
jority of the directors, or by the members of a
committee of the board of directors authorized to
act, as in the preceding section provided. Acts
1919, pp. 135, 196.
As to violation of this section, see § 211 (22) P. C.
Editor's Note. — This section seems to be based upon I
2275 of the Code of 1910. However that section did not
apply to directors, agents and employees.
§ 2366(159). Loans by bank, limit of. — No bank
shall be allowed to lend to any one person, firm,
or corporation more than twenty (20) per cent,
of its capital and unimpaired surplus. And no loan
shall be made in excess of ten (10) per cent, of
the capital and surplus except upon good col-
lateral or other ample security and with the ap-
proval of a majority of the directors, or of a com-
mittee of the board of directors authorized to act,,
which approval shall be evidenced by the written
signatures of said directors or the members of said
committee. In estimating loans to any person, all
amounts loaned to firms and partnerships of which
he is a member shall be included. Provided.
however, that a bank may buy from or discount
for any person, firm or , corporation, bills of ex-
change drawn in good faith against actually ex-
isting values, or commercial or business paper ac-
tually owned by the person negotiating the same
in addition to loans directly made to the person,
firm or corporation selling the same, such pur-
chase or discount, if in excess of ten (10) per cent,
of the capital and surplus, to be approved in writ-
ing by a majority of the directors, or by a com-
mittee of such board authorized to act; and pro-
vided, that the limit of loans herein fixed shall
not apply to bona fide loans made upon the se-
curity of agricultural, manufactured, industrial
products of live stock, having a market value and
for which there is ready sale in the open market,
title to which by appropriate transfer shall be
taken in the name of the bank, and which shall be
secured by insurance against loss by fire with pol-
icies made payable to the bank, where no more
than eighty (80) per cent, of the market value of
such products shall be loaned or advanced there-
on. In all such cases a margin of twenty (20)
per cent, between the amount of the loan and the
market value of the products shall at all times be
maintained (except where products are intended
for immediate shipment) ; and the bank shall have
the right to call for additional collateral when the
difference between the market value and the
amount loaned shall be less than twenty (20) per
64 1
§ 2366(160)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(166)
cent., and in the event of the failure to comply
with such demand, to immediately sell all or any
part of such products in the open market and pay
the amount of the loan and the expenses of sale,
and the balance to the borrower; and provided,
that the limit herein fixed shall not apply to loans
fully secured by bonds or certificates of indebted-
ness of the United States or of this State, or of
the several counties, districts or municipalities
thereof which have been duly and regularly vali-
dated as provided by law. Liabilities arising to
the makers and endorsers of checks, drafts, bills
of exchange, received b)r the bank on deposit,
cashed or purchased by it, shall not in any way be
considered as borrowed money or loans.
It shall be the duty of the Superintendent of
Banks to order any loan in excess charged to
profit and loss, provided in his opinion such ex-
cess is not well secured, and if such reduction
shall not be made within thirty (30) days after
such notification to proceed as in other cases
provided for violation of the orders of the Super-
intendent. Acts 1919, pp. 135, 197; 1922, pp.
68, 70.
As to right ot pledgee of stock to collect dividends, see
note to § 2219.
§ 2366(160). Liability of directors for allowing
loans exceeding limit. — The directors of any bank
who shall approve or permit any loan to be made
in excess of the limit herein fixed shall be per-
sonally and individually liable and responsible to
the bank for such loan in the event the same shall
not be paid by the borrower; provided, however,
that any director who shall not have voted in favor
of such loan may have his dissent or disapproval
thereof entered upon the minutes at the meeting
at which said loan is authorized, or at the next
meeting held after he has discovered that such
loan has been made, in which event he shall be
relieved of liability therefor. Acts 1919, pp. 135,
198.
§ 2366(161). Loans on real estate, limit of. — No
bank doing a commercial business and receiving
deposits subject to check, shall lend upon real
estate held as an investment, or for the purchase
of real estate, or the improvement thereof, more
than fifty (50) per cent, of the fair market value
of such real estate; and the aggregate amount of
such loans shall at no time exceed the amount of
its savings and time deposits; provided that this
section shall not apply to temporary loans or reg-
ular commercial transactions secured in whole or
in part by real estate, nor to any loan which shall
have been made prior to the approval of this act.
Acts 1919, pp. 135, 198.
§ 2366(162). Overdrafts.— Any officer or em-
ployee of any bank who shall permit any cus-
tomer of the bank to overdraw his account or who
shall pay an3r check or draft, the paying of which
shall overdraw anjr account, unless the same shall
be authorized by the board of directors, or by a
committee of such board authorized to act, shall
be personally and individually liable to such bank
for the amount of such overdraft. Acts 1919, pp.
135, 199.
Editor's Note. — As a general rule a bank may recover
the amount of an overdraft from the drawee. The drawing
of a check on a bank where a drawee keeps his account
implies a promise by him to the bank to pay if the bank
will honor it, and his account is thereby overdrawn. In
other words a transfer of a customer's account amounts to
the simple loan of the money for his own demand. Michie
on Banks and Banking, pp. 1250-1252.
The effect of this section, it would seem, is to make the
officer or employee allowing an overdraft without the con-
sent of the board security for such amount. It is reason-
able to presume that the doctrine of subrogation would be
applicable.
Right of Minority Stockholders. — It is not to be ques-
tioned that under the provisions of this section the bank
can bring a suit for overdrawn accounts against the offi-
cial, but the minority stockholders can not bring such ac-
tion in the absence of fraud, etc., merely upon the ground
that the directors refused to do so. Bush v. Bonner, 156
Ga. 143, 145, 118 S. E. 658.
§ 2366(163). Loans upon collateral. — No bank-
shall lend more than thirty (30) per cent, of its
capital and unimpaired surplus on the stock of
any corporation, although such stock may be
pledged to it by several separate borrowers, and
where loans are made direct to the corporation,
without ample security, these direct loans shall be
included in such total of thirty (30) per cent. No
bank shall make a loan secured by the stock of
another corporation if by the making of such loan
the total stock of such corporation held by it as
collateral will exceed in the aggregate twenty (20)
per cent, of the capital stock of such corporation.
Acts 1919, pp. 135, 199.
§ 2366(164). Certificates of deposit. — No bank
shall issue any certificate of deposit except in ex-
change for lawful money of the United States,
or for checks, drafts, or bills of exchange which
are the actual equivalent of such money: and all
certificates of deposit and the register or stubs in
the book from which the certificates are taken
both shall be signed by an officer of the bank
and counter-signed by another officer or bonded
employee thereof. Acts 1919, pp. 135, 199; 1920, pp.
102, 107; 1922, p. 70.
Editor's Note. — The latter part of this section beginning
with the words "and all certificates of deposits," was ad-
ded by the amendments of 1920 and 1922.
§ 2366(165). Interest to be charged. — Any
bank may take, receive, reserve and charge on
any loan or advance of money or forbearance to
enforce the collection of money, interest at not
exceeding eight (8) per cent, per annum. Acts
1919, pp. 135, 199.
As to calculation of interest on installment contract, see
§ 3436 (1).
Editor's Note. — This section does not change the usury
laws of the state of Georgia. Section 3427 defines usury to
be the reserving and taking, or contracting to reserve and
take, either directly or indirectly, a greater sum of money
than the lawful interest. By § 3436 it is declared unlaw-
ful to charge a greater rate of interest than 8% either by
discounts, exchange or by any contract or contrivance or
devise whatever. In the case of L,oganville Banking Co.
v. Forrester, 143 Ga. 302, 84 S. E. 961, it was held that
for a bank to reserve interest in advance at the highest
legal rate of interest on a loan, whether it be a short or
long term loan, is usurious. Under this ruling it is, there-
fore, unlawful to subtract in advance 8% from the amount
of the loan.
It was held, however, in Cooper v. Nat. Bank, 21 G:-..
App. 356, 9 S. E. 611, and affirmed bv the Supreme Court
of the United States, 251 U. S. 108, 40 S. C. 58, 64 L. Ed.
171, that this ruling is not applicable to national banks in
Georgia, because § 5197 of the U. S. R. S. while specifically
authorizing the national bank to reserve, on any dis-
count made, interest at the rate allowed by the laws of
several states, does not adopt the prohibition of Georgia
law against the taking of interest at the highest author-
ized rate in advance by way of discounts.
Thus, state banks are not placed on equal footing with
national banks .in this respect. Several unsuccessful at-
tempts have been made by legislators to change the law in
this respect.
§ 2366(166). Foreign and domestic accept -
[ 565 ]
§ 2366(167)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(170)
ances. — A bank may accept drafts or bills of ex-
change drawn upon it having not more than six
months' sight to run, which grow out of trans-
actions involving the importation or exporation
of goods; or which grow out of transactions in-
volving the domestic shipment of goods, pro-
vided shipping documents conveying or securing
title are attached at the time of acceptance; or
which are secured at the time of acceptance by a
warehouse receipt or other such document con-
veying or securing title covering readily market-
able staples. No bank shall accept, whether in
a foreign or domestic transaction, for any one per-
son, company, firm, or corporation to an amount
equal at any time in the aggregate to more than
ten per cent, of its paid-up and unimpaired capi-
tal stock and surplus unless the bank is secured
either by attached documents or by some other
actual security growing out of the same transac-
tion as the acceptance and no bank shall accept
such bills to an amount equal at any time in the
aggregate to more than one-half of its paid-up
and unimpaired capital stock and surplus. Pro-
vided, however, that any bank which is a mem-
ber of the Federal Reserve System may, when
so authorized by the Federal Reserve Board, and
under the regulations prescribed by it, accept
such bills to an amount not exceeding one hun-
dred per cent, of its paid-up and unimpaired capi-
tal stock and surplus, but the aggregate of ac-
ceptances growing out of domestic transactions
shall in no event exceed fifty per cent, of such
capital and surplus. Acts 1919, pp. 135, 199.
Editor's Note. — The corresponding provisions of law will
be found in the acts of 1916 p. 76. ♦
§ 2366(167). Loans upon or purchase of bank
stock. — No bank shall make any loan or discount
on the security of the shares of its capital stock,
nor be the purchaser or holder of any such
shares, unless such security or purchase shall be
necessary to prevent loss upon a debt previously
contracted in good faith, and said stock so pur-
chased or acquired shall within six (6) months of
the time of its purchase be sold and disposed of
at public or private sale. The limit of time,
however, may be extended by the Superintendent
of Banks, if in his judgment it is for the best in-
terest of the bank that such extension be granted,
but in no case shall such time be extended longer
than twelve (12) months from the time of the
purchase of the same by the bank. Acts 1919,
pp. 135, 200.
See notes to § 2366 (172).
When Payment for Stock Recovable for Creditors. —
Where stockholder's stock in insolvent bank was pledged
as collateral and credit was made on debt to the amount
of the agreed value, such stockholder believing bank
solvent, the bank holding the stock until appointment of
a receiver, such receiver within two months thereafter
may recover such credit for the benefit of the creditor^
for the stockholder is adjudged to hold subject to their
superior equity. Fitzpatrick v. McGregor, 133 Ga. 332. 65
S. E\ 859.
§ 2366(168). Unauthorized investments. — No
bank shall employ or invest its funds in the pur-
chase or holding of the stock of any industrial,
mercantile or mining corporation, or in the pur-
chase or handling of merchandise, farm or manu-
factured products, except to secure a debt pre-
viously contracted in good faith, and if any such
stocks, merchandise, or products are purchased
to protect the bank from loss, the same shall be
disposed of at public or private sale within six
(6) months after receiving the same, or the same
shall be charged to profit and loss and not car-
ried as assets by the bank. The limit of time,
however, may be extended by the Superintendent
of Banks, if in his judgment it is for the best in-
terest of the bank that such extension should be
granted. Nothing in this section is to be con-
strued as applying to trust companies or savings
banks doing a trust or savings business. Acts
1919, pp. 135, 200.
§ 2366(169). Purchase of stocks or bonds. —
No bank shall subscribe or purchase any stocks
(except stock in the Federal Reserve Bank or in
any State Bank hereafter organized with func-
tions applicable to its members similar in charac-
ter and effect to the functions of the Federal Re-
serve Bank to its members, necessary to qualify
for membership therein, in which case the pur-
chase of stock in said State Bank shall not be
made unless the purchase has first been ap-
proved by the State Superintendent of Banks
and the amount of stock bought shall not exceed
that permitted in the Federal Reserve Bank) or
bonds, except bonds of the United States, of the
State of Georgia, or of the several counties, dis-
tricts, including drainage districts, or municipali-
ties thereof, which have been duly and regularly
validated as provided by law, or of the other
States of the United States, or, with the approval
of the Superintendent of Banks, good interest
bearing bonds of foreign governments; provided
that nothing herein contained shall limit or inter-
fere with regularly authorized trust companies
doing a trust company business, advancing or
lending money on syndicate underwritings, upon
which such trust companies are authorized to
charge such commissions, in addition to interest,
as may be agreed upon by the parties, or from
subscribing, purchasing or holding stocks, bonds
or other securities; Provided: That this section
shall not apply to securities actually owned at
the date of the approval of this Act. Provided
further, That any bank of this State may invest
not exceeding five per centum of its capital and
surplus in the stock of a corporation engaged in
the business, in whole or in part, of holding,
marketing or exporting cotton from the United
States, or any of its dependencies, or insular pos-
sessions, to any foreign country. But no bank
shall subscribe to the capital stock of more than
one such corporation, and shall first receive the
approval of the Superintendent of Banks. Pro-
vided, further, That nothing contained in this
section shall apply to savings banks doing only a
savings business. Provided, further, That any
bank may subscribe for, or purchase, stock in an
agricultural credit corporation duly organized
under the laws of this State having authority to
make loans to the farmers of this State for agri-
cultural purposes and to re-discount the same
with the Intermediate Credit Bank of Columbia^
but no bank shall subscribe for or purchase stock
in more than one such corporation, nor invest
therein more than ten per centum of its capital,
and no such subscription or purchase shall be
made until first approved by the Superintendent
of Banks. Acts 1924, p. 76; 1919, pp. 135, 201.
§ 2366(170). Purposes for which banks may-
hold real estate; exception as to saving banks. —
[ 566 ]
§ 2366(171)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(174)
Any bank may purchase, hold and convey real
estate for the following purposes only: first,
such as shall be necessary for the convenient
transaction of its business, the amount of which,
including its furniture and fixtures, shall not ex-
ceed one-third (1-3) of the paid-in unimpaired
capital and surplus; provided that the Superin-
tendent of Banks may, upon application by any
bank, in his discretion, allow a greater sum in-
vested; second, such as shall be conveyed to it
in satisfaction of debts previously contracted in
the course of its business; third, such as it shall
purchase at sales under judgments, decrees, or
mortgage foreclosures under securities held by
it; but a bank shall not bid, at any such sale, a
larger amount than sufficient to satisfy its debts,
costs and expenses. No real estate acquired in
the cases contemplated in the second and third
sub-sections above shall be held for a longer pe-
riod than five (5) years unless the time shall be
extended by the Superintendent for cause shown:
Provided, that this section shall not apply to any
banking house, furniture or fixtures actually
owned at the date of the approval of this act.
Provided further that nothing contained in this
section shall apply to savings banks doing only a
savings business. Acts 1919, pp. 135, 202.
§ 2366(171). Restriction of bank's liability. —
No bank shall at any time be indebted to an
amount exceeding double the amount of its capi-
tal stock actually paid in and remaining undi-
minished by losses or otherwise, plus the amount
of the unimpaired surplus and undivided profits,
except on account of the following:
First. Moneys deposited with or collected by
the bank.
Second. Bills of exchange or drafts drawn
against money actually on deposit to the credit
of the bank or due thereto.
Third. Liabilities to the stockholders of the
bank for dividends and reserve profits.
Fourth. Commercial paper re-discounted.
Fifth. Acceptances as herein authorized.
Sixth. Liabilities incurred by the bank on ac-
count of the endorsement of checks, drafts, and
bills of exchange, received by the bank on de-
posit, cashed or purchased by it, and endorsed
by the bank.
Provided, however, that in case of temporary
emergency, or to pay its depositors, temporary
loans, in excess of the amount hereinabove fixed,
may be made, when approved in advance by the
Superintendent of Banks. Acts 1919, pp. 135,
202.
§ 2366(172). Purchase of bank's obligations. —
No bank, nor any of its directors, officers, agents
or employees, shall directly or indirectly pur-
chase or be interested in the purchase of any
promissory note, certificate of deposit, or other
evidence of debt issued by it, for a less sum than
shall appear on the face thereof to be due there-
on: Provided that a bank may discount its un-
matured obligations at not more than the legal
rate, which obligations shall be canceled and sat-
isfied forthwith. Acts 1919, pp. 135, 203.
Editor's Note — See § 2342 of the Code of 1910 which re-
quired banks to pay specie for their bills, notes, drafts or
other obligation when due, receive affidavits of their debts
in payment of debts due them and receive their own bills
at par in payment of debts due them. See also, section 211
[ 56
(23) of the penal code for the penalty for the violation of
this section.
Applying Capital Stock to Purchase. — Both under the
laws of this state prior to the present banking law, and
under that act, banking corporations, their presidents and
directors, were and are prohibited from using and apply-
ing any part of the capital stock of a bank to the purchase
of shares of its own stock. Fitzpatrick v. McGregor, 133
Ga. 332, 337-342, 65 S. E- 859, 25 h. R. A., N. S., 50; Craw-
ford v. Roney, 126 Ga. 763, 766, 55 S. E. 499; Knight v.
Davis Banking Co., 31 Ga. App. 440, 120 S. E. 696.
§ 2366(173). Reserve. — Every bank whose de-
posits are subject to check shall at all times
maintain a reserve of fifteen (15) per cent, of the
amount of its demand deposits, and five (5) per
cent, of the amount of its savings and time de-
posits. Savings banks and trust companies
whose deposits are not subject to check without
notice shall maintain a reserve of five (5) per
cent, of the amount of their deposits. Such re-
serve shall consist of lawful money of the United
States, gold certificates, silver certificates, Fed-
eral Reserve or National Bank notes, in the of-
fice and vaults of the bank, and of moneys on
deposit subject to call with other banks or bank-
ers, such banks or bankers to be approved by the
Superintendent of Banks: Provided that the re-
serve against savings and time deposits may be
invested in bonds of the United States or of this
State, at the market value thereof; Provided that
any bank which is a member of the Federal Re-
serve System may in lieu of the reserve herein
required keep and maintain such reserve as is re-
quired under the Acts of Congress relating to
Federal Reserve Banks. Demand deposits within
the meaning of this Section shall comprise all
deposits payable within thirty days, and time de-
posits shall comprise all deposits payable after
thirty days, and all savings accounts and certifi-
cates of deposit which are subject to not less
than thirty days notice before payment; and pro-
vided that a bank shall have the right to pay
checks drawn upon it when presented by any
bank, banker, trust company, or any agent there-
of, either in money or in exchange drawn on its
approved reserve agents, and to charge for such
exchange not exceeding one-eighth of one (1)
per cent, of the aggregate amount of the checks
so presented and paid. Acts 1919, pp. 135, 203;
1920, pp. 102, 107.
Editor's Note. — The first and last provisos of this sec-
tion were added by the act of 1920. This section is in sub-
stances the enactment of the acts of 1918, p. 184. For the
requirement as to reserve under the prior law, see § 2276
of the Code of 1910.
§ 2366(174). Reserve not maintained. — When-
ever the reserve of any bank shall fall below the
amount of fifteen (15) per cent, of its demand
deposits and five (5) per cent, of its savings and
time deposits not subject to check and whenever
the reserve of any savings bank or trust com-
pany whose deposits are not subject to check
shall be below five (5) percent, of its deposits,
such bank, savings bank or trust company shall
not increase its liabilities by making any new
loans or discounts otherwise than by discounting
or purchasing bills of exchange at sight, nor
shall anjr dividend be declared out of the profits
of such bank, savings bank, or trust company,
until the required proportion between the aggre-
gate amount of its deposits and the amount to
be held as a reserve has been restored. The Su-
perintendent of Banks may notify any bank, sav-
]
§ 2366(175)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(180)
ings bank or trust company, whose reserve shall
be below the amount required to be kept on
hand, to make good such reserve; and if such
bank, savings bank or trust company shall fail
within thirty (30) days thereafter to make good
its reserve, the Superintendent of Banks may
take charge of the business and assets of said
bank, savings bank or trust company, as in other
cases herein provided. Acts 1919, pp. 135, 204.
§ 2366(175). Dividends and surplus. — The di-
rectors of any bank may, annually, semi-annu-
ally, or quarterly, declare a dividend of so much
of the net profits of the bank as they may deem
expedient; but such bank shall, before the decla-
ration of any dividend, carry twenty-five (25)
per cent, of its net profits earned since its last
preceding dividend to its surplus until the sur-
plus shall amount to twenty (20) per cent, of its
capital. Each Bank shall report to the Superin-
tendent of Banks, within ten (10) days after de-
claring and at least ten (10) days before paying
any dividend, the amount of such dividend and
the amount of net earnings in excess of the divi-
dend and amount carried to the surplus. Such
report shall be attested by the oath of the presi-
dent or cashier of the bank. Acts 1919, pp. 135,
204.
§ 2366(176). Unearned dividends prohibited. —
No bank shall withdraw or permit to be with-
drawn either in the form of dividends or other-
wise any portion of its capital nor reduce its
surplus below twenty (20) per cent of its capital.
If losses have been sustained at any time by such
bank equal to or exceeding its undivided profits
then on hand, no dividends shall be declared, and
no dividends shall ever be declared by any bank
to an amount greater than its undivided profits
then on hand, deducting therefrom its losses and
bad debts. All debts due to any bank on which
interest is past due and unpaid for a period of
twelve (12) months, unless the same are well se-
cured or in process of collection, shall be consid-
ered "bad debts" within the meaning of this sec-
tion. Acts 1919, pp. 135, 205.
Cross References.— For the prior law of this subject, see
§ 2348 of the Code of 1910. For the penalty provision for
the violation of the prior law, see § 208 of the Penal Code
of 1910; for the penalty provision of the violation of this
law, see § 211 (25) P. C. of this Code.
§ 2366(177). Dividend, how declared and
when losses reduce surplus. — Any losses sus-
tained by any bank in excess of its undivided
profits may be charged up to its surplus ac-
count; provided that its surplus shall thereafter
be re-imbursed from its earnings, and no divi-
dend shall be declared or paid by any such bank
in excess of one-half (%) of its net earnings un-
til its surplus shall be fully restored to its former
amount. Acts 1919, pp. 135, 205.
§ 2366(178). Calculation of profits.— Interest
unpaid, although due or accrued on debts owing
to the bank, shall not be included in the calcula-
tion of its profits previous to a dividend, unless
such interest be accrued upon loans secured by
collaterals as provided for by this Act. The un-
divided profits from which alone a dividend can
be made, shall be ascertained by charging in the
account of profit and loss and deducting from
the actual profits:
1. All expenses paid or incurred, both ordinary
and extraordinary, including taxes, attending the
management of the affairs of the bank, and the
transaction of its business.
2. The interest paid, or then due and accrued,
on debts owing by it.
3. All losses sustained by it. In the computa-
tion of such losses, there shall be included all
debts owing to the bank which shall have been
due, without suit for twelve (12) months; and
upon which no interest shall have been paid dur-
ing that period, except such debts as in the opin-
ion of the Superintendent are well secured.
There shall also be included in such computation
all debts due the bank on which judgment shall
have been recovered, which judgment shall have
remained for more than one (l) year unsatisfied,
and on which no interest shall have been paid
during that period. Acts 1919, pp. 135, 205.
§ 2366(179). Lien against bank for collaterals.
— When any bank is indebted to any other party
and shall deposit with such party any commer-
cial paper or papers as collateral for its debt, and
such collateral shall be afterwards sent back to
the bank in order that it may be collected and
the funds remitted by the bank to the creditor,
the holder of the bona fide receipt of the bank
for such paper to be so collected shall, after any
such collections are made, but not paid over,
have a lien against the assets of the bank to the
extent of such funds as have been actually col-
lected by the bank, and such lien shall rank with
other liens according to date and shall attach
from the date of the collection of any such fund
by such bank. Acts 1919, pp. 135, 206.
Editor's Note. — This section is very similar to § 2354 of
the Code of 1910. The old section was held not to violate
the constitution, §§ 5358, 6359 of the Code, in Collins v.
Fxch. Nat. Bank, 147 Ga. 273, 93 S. E. 880.
§ 2366(180). Lien on bank's assets when
checks are not remitted. — When any bank, or
any officer, clerk, or agent thereof, receives by
mail, express or otherwise, a check, bill of ex-
change, order to remit, note, or draft for collec-
tion, with request that remittance be made there-
for, the charging of such item to the account of
the drawer, acceptor, indorser, or maker thereof,
or collecting any such item from any bank or
other party, and failing to remit therefor, or the
non-payment of a check sent in payment there-
for, shall create a lien in favor of the owner of
such item on the assets of such bank making the
collection, and such lien shall rank with other
liens, according to date, and shall attach from
the date of the charge, entr}^ or collection of any
such funds. Acts 1919, pp. 135, 206.
Editor's Note. — This section changes the ruling in Citi-
zens Nat. Bank v. Haynes, 144 Ga. 490, 87 S. E- 399, which
followed Ober & Sons Co. v. Cochran, 118 Ga. 396, 404, 45
S. E. 382, to the effect that where one bank sends a draft
to another bank for collection with instructions to re-
mit, but instead of obeying the instructions the bank
deposits the collections made to the credit of the sending
bank and uses the money in its own business, such money
is not impressed with the trust in favor of the sending
bank, so as to give the priority over the general creditors
and depositors of the collecting bank.
The case of United States Nat. Bank v. Glanton, 146 Ga.
786, 92 S. E. 625, holds that where such drafts were sent
to another bank for collection without any specific in-
structions and such bank collects the draft by accepting
a check of the drawee, drawn on itself, charging the
amount thereupon against the drawee's account, this
transaction does not establish the relation of trustee and
[568]
§ 2366(181)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(187)
cestui que trust between the two banks; but it does es-
tablish the relation of debtor and creditor, the forwarding
bank having1 no preference to general creditors. In as much
as this section expressly applies to only those drafts, etc.,
where a request that a remittance be made thereof it is
very doubtful whether or not this ruling is affected by it.
See 2 Cum. Dig. 646 for further treatment.
§ 2366(181). Due diligence on part of bank in
collecting. — When a check, draft, note, or other
negotiable instrument is deposited in a bank for
credit, or for collection, it shall be considered
due diligence on the part of the bank in the col-
lection of such check, draft, note or other nego-
tiable instrument so deposited, to forward and
route the same without delay in the usual com-
mercial way, according to the regular course of
business of banks, and the maker, indorser, guar-
antor, or surety of any check, draft, note, or
other negotiable instrument so deposited shall be
liable to the bank until actual final payment is
received; and when a bank receives for collection
any check, draft, note, or other negotiable instru-
ment and forwards same for collection as herein
provided, it shall be liable only after actual final
payment is received by it, except in case of want
of due diligence on its part as aforesaid. Acts
1919, pp. 135, 207.
§ 2366(182). Forwarding check direct to
payor. — Any bank, or banker, doing business in
this State, receiving for collection or deposit,
any check, note or other negotiable instrument
drawn upon or payable at any other bank, lo-
cated in another city or town, whether within or
without this State, may forward such instrument
for collection directly to the bank on which it is
drawn or at which it is made payable and such
method of forwarding direct to the payor shall
be deemed due diligence and the failure of such
payor bank, because of its insolvency or other
default, to account for the proceeds thereof, shall
not render the forwarding bank liable therefor;
provided, however, such forwarding bank shall
have used due diligence in other respects in con-
nection with the collection of such instrument.
Acts 1919, pp. 135, 207.
§ 2366(183). Certifying checks.— No check
shall be certified except by the president, a vice-
president, cashier, or an assistant cashier of a
bank. It shall be unlawful to certify any check,
draft, or order upon the bank, unless the drawer
of such check, draft, or order has on deposit
with the bank, at the time such check, draft, or
order is certified, an amount of money equal to
the amount specified in such check, draft or or-
der. Such certification shall be entered on the
face of such check, draft, or order, and the
check, draft or order so certified shall be charged
against the drawer's account immediately. And
any check certified by a proper official shall be a
good and valid obligation against the bank; but
the act of any officer in violation of this section
shall subject him to the penalties provided in
this Act. Acts 1919, pp. 135, 207.
As to violation of this section, see § 211 (27) P. C.
This section is very similar to § 2301 of the Code of 1910.
§ 2366(184). Membership in Federal Reserve
Bank. — Banks are authorized and empowered to
subscribe for stock and become members of the
Federal Reserve Bank of the district to which
they properly may be assigned by the Federal
[5
Reserve Board, in accordance with the Acts of
Congress regulating Federal Reserve Banks, and
any bank becoming such member shall be au-
thorized to conform to the requirements and
regulations of such Federal Reserve Bank, and
of the Federal Reserve Board. Acts 1919, pp.
135, 208.
This section is very similar to the provisions of the act
of 1915 p. 33.
§ 2366(185). Payment of deposits in two
names. — When a deposit has been made, or shall
hereafter be made, in any bank transacting busi-
ness in this State in the names of two persons,
payable to either, or payable to either or the sur-
vivor, such deposit, or any part thereof, or any
interest or dividend thereon, may be paid to ei-
ther of said persons, whether the other be living
or not; and the receipt or acquittance of the per-
son so paid shall be a valid and sufficient release
and discharge to the bank for any payment so
made. Acts 1919, pp. 135, 208.
Title Upon Death of Depositors. — Where a husband de-
posited in a bank a sum of money belonging to himself, in
the name of his wife but with the understanding that all
or any part thereof might be withdrawn either by him-
self or by the wife, but by no one else, thus reserving to
himself a free right of withdrawal, but giving to the wife
the same right, the effect was to make a joint deposit with
the conditions stated attached thereto. Had the money
been thus withdrawn by the wife or by the husband, as in
Moore v. Citizens Bank of Ashburn, 21 Ga. App. 183, 94
S. F. 90, the bank, under such conditions would in such
disbursement have been protected against a suit by the
legal representative of the other; but where the deposit
remained intact and nothing was withdrawn by either the
husband or the wife, both of whom subsequently died, the
title to such moneys vested jointly in the estates of the
husband and the wife. First Nat. Bank v. Sanders, 31 Ga.
App. 789, 122 S. F. 341.
In the instant case suit was brought, not by either of
said joint depositors, but by the legal representative of
the wife, after both had become deceased. A strict con-
struction of the statute does not authorize such a proce-
dure; and where each of the joint depositors was dead, the
bank was right in requiring the representative of the hus-
band who in fact had owned the moneys to join in claiming
the fund, in the absence of any appropriate proceedings to
adjudicate their respective rights and interests. First Nat.
Bank v. Sanders, 31 Ga. App. 789, 122 S. E- 341.
§ 2366(186). Check of deceased or bankrupt
or insane depositor. — The death or bankruptcy
of a depositor unknown to the bank shall not re-
voke a check given by him, and a bank shall be
authorized to pay through regular channels a
check regularly drawn upon it by a depositor
therein, notwithstanding the death or bankruptcy
of such depositor unknown to the bank at the
time of such payment. A bank paying the check
of an insane depositor in good faith and without
notice or knowledge of the insanity of such de-
positor shall be protected in so doing and may
lawfully charge such check to the account of
such depositor. Acts 1919, pp. 135, 208.
Editor's Note — In American Trust, etc., Co. v. Boone,
102 Ga. 202, 29 S. E. 182, the court held that where a bank
pays the check of a person lawfully adjudged to be insane,
even though the bank at the time of the payment has no
notice of the adjudication, the bank will not be protected.
This ruling is based upon the ground that an insane per-
son has no power to enter into a contract. The same
ruling prevailed generally as to the payment of the check
of a deceased person or bankrupt. This section changes
the ruling.
§ 2366(187). Deposits by minors. — A minor
shall be allowed to deposit money in bank in his
own name, and the money so deposited shall not
be subject to the control of his parent, guardian,
69 1
§ 2366(188)
REGULATION OF THE BUSINESS OF BANKING
§ 2366(193)
or trustee, but may be drawn or checked out by
the minor depositing the same as though he were
of full age. Acts 1919, pp. 135, 208.
Editor's Note. — This section seems to be an exception to
two general rules. As a general rule a minor's contracts
are avoidable, (see § 4233 of this Code) a deposit being a
contract. Also, as a general rule persons standing in loca
parentis may control the funds of the minor. As to con-
trol of infants' earnings generally, see §§ 2995, 3021.
§ 2366(188). Deposit by agent, trustee, or
other fiduciary. — Whenever any agent, adminis-
trator, executor, guardian, trustee, either express
or implied, or other fiduciary whether bona fide
or mala fide shall deposit any money in any bank
to his credit as an individual, or as such agent,
trustee, or other fiduciary, whether the name of
the person or corporation for whom he is acting
or purporting to act be given or not, such bank
shall be authorized to pay the amount of such
deposit or any part thereof, upon the check of
such agent, administrator, executor, guardian,
trustee, or other fiduciary, signed with the name
in which such deposit was entered, without be-
ing accountable in any way to the principal,
cestui que trust, or other person or corporation
who may be entitled to or interested in the
amount so deposited.
Nothing herein contained shall prevent the
person or corporation claiming the beneficial in-
terest in or to any deposit in any bank from re-
sorting to the courts to subject such deposit,
provided such action is brought and served be-
fore such deposit is paid out, and to any action
brought for this purpose both the bank and the
depositor shall be necessary parties defendant.
Acts 1919, pp. 135, 209.
Editor's Note. — In the case of American Trust, etc., Co.
v. Boone, 102 Ga. 202, 29 S. E. 182, it was held that as a
general rule a bank may assume that a trustee will ap-
ply money deposited by him to its proper purposes under
the trust, and the bank is not accountable for any misap-
propriation under their trust funds in which it does not
participate; but a bank can not, without incurring liability
to the true owner, knowingly appropriate to the satisfac-
tion of debt due to it by another trust funds deposited with
it by him after the creation of such debt. This section
seems to be based upon that case and the cases cited there-
in supporting the proof.
Fund Controlled by Church Committee. — Where it ap-
pears, from the undisputed evidence, that the church mem-
bers or a majority of them entrusted their funds to a com-
mittee clothed with authority to deposit the same and to
deal with a bank on behalf of their principals, the bank
was authorized to accept and disburse the monies upon
the terms and under the instructions given it by the com-
mittee. Since the evidence was in conflict with reference
to the instructions given by the church committee as to
the proper method by which checks were to be signed, an
issue was presented for determination by the jury, and it
was error for the court to direct a verdict. Bank v.
Powell, 30 Ga. App. 235, 237, 117 S. E. 264.
The ruling here made does not run counter to the pro-
visions of § 2833, providing that "the majority of those who
adhere to its organization and doctrines represent the
church," since the holding is based upon the theory that
the duly authorized committee represented the majority
who had constituted and empowered it. Bank v. Powell
30 Ga. App. 235, 237, 117 S. E. 264.
§ 2366(189). Payment of deposits in trust. —
Whenever any deposits shall be made in any
bank by any person in trust for another, and no
other or further notice of the existence and
terms of a legal and valid trust shall have been
given in writing to the bank, in the event of the
death of the trustee, the same, or any part there-
of, together with the dividends or interest there-
on, may be paid to the person for whom said de-
posit was made. Acts 1919, pp. 135, 209.
§ 2366(190). Forged or raised checks. — No
bank which in good faith has paid, and charged
to the account of a depositor, any money on a
forged or raised check issued in the name of the
depositor shall be liable to said depositor for the
amount paid thereon, unless, (1) within sixty
(60) days after the return to the depositor of the
voucher representing such payment, the depos-
itor shall notify the bank that the check so paid
was forged or raised, or, (2) in the event the
voucher has not been returned to the depositor,
within sixty (60) days after notice shall have
been given by the bank to the depositor to have
hjs pass book balanced and to call for his vouch-
ers. The notice herein referred to may be given
by mail to said depositor at his last known ad-
dress. Acts 1919, pp. 135, 209.
As to the liability of banks to depositors for paying
forged check, see 2 Enc. Dig. 286.
Excuse for Failure to Give Notice. — Where a wife waited
two years to notify the bank of forgery and demand pay-
ment, her husband, the forger threatening her life if she
did, a cause of action was set out. Citizens, etc., Bank
v. Ponsell, 33 Ga. App. 193, 125 S. E. 775. It would seem
from this case that accidental knowledge of the forgery
is not sufficient to relieve the bank. It does not appear
from the statement of the case that the wife received the
vouchers from the bank, but it was admitted that she
had notice of the forgery two years before bringing suit.
Ed. Note.
§ 2366(191). List of stockholders to be sent to
Superintendent of Banks. — The president and
cashier of every bank shall cause to be kept at
all times, in the office where its business is trans-
acted, a full and correct list of the names and
residences of all the stockholders in the bank,
with the number of shares held by each, re-
spectively. Such list shall be subject to the in-
spection of all stockholders of the bank during
business hours of each day in which business
may be legally transacted. A copy of such list,
verified by oath of such president or cashier,
shall be transmitted on the first Monday in July
of each year, to the Superintendent of Banks,
such copy list also to be subject to inspection as
hereinabove provided. Acts 1919, pp. 135, 210.
For a similar provision of the prior law, see § 2307 of the
Code of 1910.
§ 2366(192). Transfers after or in contempla-
tion of insolvency. — All transfers of notes, bonds,
bills of exchange, or other evidences of debt
owing to any bank, or deposits to its credit; all
assignments, mortgages, conveyances or liens;
all judgments or decrees suffered or permitted
against it; all deposits of money, bills or other
valuable things for its use, or for the use of its
stockholders or creditors; and all payments of
money, either after insolvency or in contempla-
tion of insolvency, with a view to prevent appli-
cation of its assets in the manner prescribed in
this Act, or with a view to the preference of one
creditor over another, shall be null and void, pro-
vided such acts enumerated were committed
within three months prior to the failure of such
bank. Acts 1919, pp. 135, 210.
For a complete treatment of assignments by bank in
contemplation of insolvency, see 2 Cum. Dig. 662, 2 Enc.
Dig. 298. For the corresponding provision of prior law,
see § 2360 of the Code of 1910.
§ 2366(193). Savings deposits; regulations;
limitations. — Sums deposited with any savings
[570]
§ 2366(194)
CREDIT UNIONS
§ 2366(198)
bank and savings deposits taken by any bank do-
ing both a commercial and savings bank busi-
ness, together with interest credited thereto,
shall be re-paid to the depositors, respectively,
or to their legal representatives, after demand,
in such manner and at such times and after such
previous notice and under such regulations as
the board of directors of such bank shall pre-
scribe, and interest thereon shall be credited at
such times and at such rate and under such
regulations as may be prescribed by said board
of directors. The rules and regulations adopted
by board of directors governing deposits shall be
printed in the pass books or other evidences of
deposit furnished by such bank, and shall be evi-
dence between the bank and the depositors hold-
ing the same of the terms upon which the de-
posits therein acknowledged are made. A bank
receiving savings deposits may limit the aggre-
gate amount which any one person, firm, associa-
tion or corporation, may deposit to such sum as
it may deem expedient to receive, and may in its
discretion refuse to receive any deposit, and may
also at any time return all or any part of any de-
posit with the interest accrued thereon, accord-
ing to the rules and regulations adopted by said
bank. Where a bank does both a commercial
and savings business separate records shall be
kept of its savings deposits. Acts 1919, pp. 135,
210.
For Georgia cases upholding reasonable rules regulating
savings deposits, see 2 Cum. Dig. 669.
§ 2366(194). Payment of deposit of deceased
depositor. — Upon the death of any person, intes-
tate, having a deposit in a bank of not more than
$100, such bank shall be authorized to pay over
such deposit (a) to the husband or wife of the
depositor, (b) if no husband or wife, to the chil-
dren, (c) if no children, to the father if living, if
not to the mother of the depositor, (d) if no
children or parent, then to the brothers and sis-
ters of the depositor. The receipt of such per-
son or persons shall be a full and final acquit-
tance to the bank and relieve it of all liability to
the estate of said deceased depositor or the rep-
resentative thereof should one be appointed.
Acts 1919, pp. 135, 211.
For provisions of paying over the wages of deceased em-
ployees to widows, minors, or guardians, see §§ 3134 to 3136
of this Code. As to payment upon death of joint depositors,
see § 2366 (185).
§ 2366(195). Stock certificates to be receipted
for. — All certificates of stock issued by any
bank, both at the time of the organization there-
of and upon each re-issue thereof, shall be re-
ceipted for in ink upon the stub in the stock cer-
tificate book from which said certificates are
taken, by the person to whom such stock is is-
sued or his duly authorized agent. Acts 1922, p.
70.
This section is new with the act of 1922.
Superintendent of Banks shall be appointed and
qualified, the State Treasurer shall turn over and
deliver to the Superintendent of Banks all
moneys in his hands as Ex-Officio State Bank
Examiner and all records, books, papers, prop-
erty, and effects belonging to the Bank Bureau
as now organized and conducted in the State
Treasury. The receipt of the Superintendent of
Banks shall be a full acquittance to the State
Treasurer for all funds, records and property so
turned over and delivered. Acts 1919, pp. 135,
222.
SECTION 20.
Operation and Effect of Act.
§ 2366(196). Supersedes existing laws. — This
Act shall take effect from and after the 1st day
of January, 1920, and shall then supersede all ex-
isting laws regulating banks and banking in this
State. On said date, or as soon thereafter as the
ARTICLE 1A.
Credit Unions.
§ 2366(197). Organization; petition. — Any
number of persons, not less than eight, may in-
corporate for the purpose of organizing a Credit
Union, in accordance with the provisions of this
Act. The persons so desiring to become incor-
porated shall file in the office of the Secretary of
State, a petition, in duplicate and signed by each
of them, stating:
(a) The name of the proposed Credit Union
and the city, town or village in which its princi-
pal business office is to be located.
(b) The names and address of petitioners and
the number of shares subscribed by each.
(c) That incorporation is desired under this
Act and the par value of shares, which shall be
$5.00.
(d) That the purpose and nature of the busi-
ness are to conduct a Credit Union with the
rights and powers granted by this Act.
(e) And any other matters which they may
deem it advisable to state. Acts 1925, pp. 165,
166.
As to penalty for violation of this article, see § 702 (17)
P. C.
§ 2366(198). By-laws.— Said petition shall be
accompanied by a draft of By-laws, and the pe-
tition and By-laws shall be filed, in duplicate, in
the office of the Secretary of State, who shall re-
cord the date of filing and the name of the Credit
Union in a book to be kept for that purpose.
The By-laws shall provide:
(a) The date of the annual meeting (which
shall be in January of each year), the manner of
notification of meetings and of conducting the
same, the number of members constituting a
quorum and regulations as to voting.
(b) The number of directors (which shall not
be less than five), all of whom must be mem-
bers, their powers and duties, together with the
duties of the officers elected by the Board of Di-
rectors.
(c) The qualifications for membership.
(d) The number of members of the credit
committee and of the supervisory committee
(which shall not be less than three each), to-
gether with their respective powers and duties.
(e) The conditions under which shares may
be issued, paid for, transferred and withdrawn,
deposits received and withdrawn, loans made
and repaid and the funds otherwise invested.
(f) The charges which shall be made, if any,
for failure to meet obligations punctually;
whether or not the corporation shall have the
power to borrow; the method of receipting for
[571]
§ 2366(199)
CREDIT UNIONS
§ 2366(203)
money; the manner of accumulating a reserve
fund; the manner of determining and paying a
dividend and such other matters, consistent with
this Act, as may be requisite to the organization
and operation of the Credit Union in question.
Acts 1925, pp. 165, 166.
§ 2366(199). Approval of by-laws by bank
superintendent; certificate. — The duplicate set
of By-laws shall be transmitted by the Secretary
of State to the Superintendent of Banks, who
shall promptly consider same, and, after making
such changes therein, with consent of petition-
ers, not inconsistent with this Act as he may
deem necessary, in writing approve same, if he
is satisfied that the proposed field of operation is
favorable to the success of said corporation, and
that the standing of the proposed incorporators
is such as to give assurance that its affairs will
be properly administered. He shall then
promptly return the said duplicate set of By-
laws as revised, re-writing same in duplicate, if
necessary, with his approval endorsed thereon,
to the Secretary of State, who shall thereupon
if he finds the requirements of this Act have
been complied with, issue to said Credit Union
a certificate of incorporation, under the great
seal of the State, and shall attach said certificate
to one of the duplicate sets of the petition and
By-laws, and deliver same to petitioners, re-
taining the other set on file in his office. Said
certificate shall be substantially as follows, to-
wit:
"To all to whom these presents may come:
Greetings.
Whereas, in pursuance of an Act of the Gen-
eral Assembly of this State, approved day
of (names of persons who signed the
petition), having filed in the office of the Secre-
tary of State a certain petition, seeking the for-
mation of a Credit Union, to be known as
(insert name), and have complied with the law
in such cases made and provided; therefore, the
State of Georgia hereby grants unto the above
named persons, their successors and assigns,
full authority by and under the name of (insert
name) to exercise the powers and privileges of
a Credit Union, subject to the provisions of the
Constitution and the laws of this State, and all
the laws, rules and regulations covering Credit
Unions of force at the date of this certificate, or
that may hereafter become of force, either by
constitutional or statute law.
In Witness Whereof, these presents have been
signed by the Secretary of State, and to which
is annexed the great seal of the State, at Atlanta,
Georgia.
This, the day of "
Acts 1925, pp. 165, 167.
§ 2366(200). Subscribers' meeting; record of
certificate. — Upon receipt of said certificate from
the Secretary of State, petitioners shall call a
meeting of the subscribers for the purpose of
organizing, of which meeting five days notice
shall be given to each subscriber, personally, or
by deposit of such notice in the mails postage
paid, directed to his last known address or to
the address left by him in writing for that pur-
pose. Such notice, however, may be waived.
At said meeting, or adjourned meeting thereof,
petitioners shall accept said certificate and By-
laws, noting such acceptance on the minutes of
the meeting, and proceed to organize by the elec-
tion of officers and performance of all other
things necessary to complete the organization.
The certificate of incorporation, but not the
petition and By-laws attached thereto, shall be
then recorded in the office of the Clerk of the
Superior Court of the County in which the
Credit Union has its principal place of business,
and the Credit Union shall thereupon become
and be a corporation with all the powers and
privileges granted by this Act, for a period of
twenty years from the date of said certificate,
with right of renewal. The Secretary of State,
shall, upon application of the Credit Union and
approval of the Superintendent, issue a renewal
certificate of like form as the original certificate,,
which shall likewise be recorded in the office of
said Clerk. Acts 1925, pp. 165, 168.
§ 2366(201). Certificate as evidence. — A copy of
said certificate or renewal certificate, certified by
the Clerk of the Superior Court in which same
has been recorded, shall be admissible in evi-
dence in any court or place in this State, as proof
of the organization of said Credit Union and its
right to do business as such. Acts 1925, pp.
165, 169.
§ 2366(202). Amendments to by-laws. — No-
amendment to the By-laws shall become opera-
tive until copy thereof, with the approval of the
Superintendent of Banks endorsed thereon, has
been filed with the Secretary of State. The Sec-
retary of State shall record the date of filing
same under the name of the Credit Union in the
record book hereinbefore provided for. Acts
1925, pp. 165, 169.
§ 2366(203). Powers.— A Credit Union shall
have, in addition to the powers common under
the laws of Georgia to all corporations, the fol-
lowing powers:
(1) It may receive the funds and savings of
its members in payment for shares or on deposit.
(2) It may receive deposits from non-members
in such manner as the By-laws may provide.
(3) It may make loans to members, through
its credit committee.
(4) It may also invest, through its board of
directors, its surplus funds:
(a) In any investment which is legal for
savings banks in the State of Georgia.
(b) In the stock of other credit unions, to a
total amount which shall not exceed ten per cent
of the capital stock and reserve funds of the
investing Credit Union, and
(c) May deposit to the credit of corporation
in savings banks, credit unions, state banks, trust
companies and national banks.
(5) It may borrow from any source, but the
total of such borrowings shall at no time exceed
fifty per cent of the capital, surplus and reserve
fund of the borrowing Credit Union.
(6) It may undertake such other activities, not
inconsistent with the provisions of this Act, as
the By-laws may authorize, and exercise the
powers, elsewhere in this Act granted.
(7) It may organize and engage in business
without having any stated amount of capital
subscribed or paid in, and may begin to do busi-
[572 ]
§ 2366(204)
CREDIT UNIONS
§ 2366(209)
ness with only such capital stock subscribed
and paid in as may be provided in its By-laws,
and may increase and decrease its capital stock
and provide for the payment and withdrawal
thereof as and in the manner provided in its
By-laws. Acts 1925, pp. 165, 169.
§ 2366(204). Membership. — The membership
of the Credit Union shall consist of the incor-
porators and such persons, societies, associa-
tions, co-partnerships and corporations as may
be duly elected to membership and have sub-
scribed to one or more shares and have paid for
same in whole or in part and have paid the en-
trance fee and complied with all other require-
ments contained in the By-laws. Acts 1925, pp.
165, 170.
§ 2366(205). Reports to bank superintendent;
examinations; revocation of certificate. — Credit
Unions shall be subject to the supervision of the
Superintendent of Banks and shall make a report
of conditions to him at least semi-annually, upon
call and on blank forms to be supplied by him.
Returns shall be verified under oath of the Pres-
ident and Treasurer and additional reports may
be required by the said Superintendent. Any
credit union which neglects to make the above
reports shall forfeit to the Treasurer of the State
ten dollars for .each day of such neglect, unless
excused by the Superintendent of Banks. Each
Credit Union shall be examined at least annually
by the said Superintendent, or his duly author-
ized deputy. Said Superintendent may order
other examinations and shall at all times be
given free access to all of the books, papers, se-
curities and other sources of information in
respect to said Credit Union. For this purpose
he shall have the power to subpoena and examine
personally, or through one of his deputies, wit-
nesses on oath and documents pertaining to the
business of the Credit Union. If a Credit Union
neglects to make the required reports or to pay
the charges herein required for fifteen days, the
Superintendent of Banks shall notify the Credit
Union of his intention to revoke the certificate
of approval. If said neglect or failure continue
for another fifteen days the Superintendent may
revoke said certificate of approval and he, or one
of his deputies shall take possession of the busi-
ness of such Credit Union and retain possession
until such time as he may permit it to resume
business or liquidate its affairs, pursuant to the
banking laws of the State. Acts 1925, pp. 165,
170.
§ 2366(206). Illegal practices; insolvency. — If
it appears to the Superintendent of Banks that a
Credit Union has violated any of the provisions
of this Act he may, by an order made over his hand
and official seal, after hearing, or an opportunity
for a hearing has been given said Credit Union
direct it to discontinue the illegal methods and
practices. If a Credit Union is insolvent or has,
within a reasonable time, failed to comply with
any order mailed to the last address filed by said
Credit Union with said Superintendent, he shall
immediately, or within a reasonable time there-
after, take possession of the business and prop-
erty of the Credit Union and retain possession
until such time as he may permit it to resume
business or its affairs are finally liquidated. Acts
1925, pp. 165, 171.
§ 2366(207). Fiscal year; special meetings of
members. — The Credit Union fiscal year shall
end at the close of business on the thirty-first
day of December. Special meetings of the mem-
bers may be held by order of the directors, or of
the Supervisor}- Committee and shall be held on
written request of ten per cent of the members.
At all meetings a member shall have but one
vote, irrespective of the number of shares held.
No shareholder may vote by proxy but a society,
association, co-partnership or corporation, hav-
ing membership in the Credit Union, may be
represented by one person, duly authorized by
said society, association, co-partnership or cor-
poration to represent it. At any meeting the
members may decide on any matter of interest to
the corporation, may overrule the board of di-
rectors and, by a three-fourths vote of those
present may amend the By-laws, providing the
notice of the meeting shall have stated the ques-
tion to be considered. Acts 1925, pp. 165, 172.
§ 2366(208). Board of directors; committees.
— At the annual meeting the members shall elect
a Board of Directors, a credit committee and a
supervisory committee. Unless the number of
members of the Credit Union is less than eleven,
no member of the Board shall be a member of
either of said committees. All members of the
board and committee and all officers shall be
sworn to faithfully perform the duties of their
several offices, and shall hold them for such
terms as may be determined by the By-laws.
The oaths shall be subscribed by the individuals
taking it and certified by the officer before whom
it is taken and shall immediately be transmitted
to the Superintendent of Banks and filed and
preserved in his office. Acts 1925, pp. 165, 172.
§ 2366(209). Officers; duties of directors. — At
the first meeting and at each first meeting in the
fiscal year, the Board of Directors shall elect
from their own number a President, Vice-Presi-
dent, Secretary and Treasurer. If the By-laws
so provide the offices of Secretary and Treasurer
may be held by the same person. The Board of
Directors shall have the general management of
affairs, funds and records of the corporation and
shall meet as often as may be necessary. Unless
the By-laws shall specially reserve any and all
of the duties to the members, it shall be the special
duty of the directors:
(1) To act upon all applications for member-
ship and expulsion of members.
(2) To determine, from time to time, rates of
interest which shall be allowed on deposits and
charge on loans.
(3) To fix the amount of the surety bond
which shall be required by each officer having
the custody of funds.
(4) To fix the maximum amount of shares
which may be held by and the maximum amount
which majr be loaned to any one member: to
declare dividends and recommend amendments
to the By-laws.
(5) To fill vacancies in the Board of Direct-
ors and Credit Committee until the election and
qualification of successors.
[573]
§ 2366(210)
CREDIT UNIONS
§ 8366(8174
(6) To have charge of the investment of
funds of the corporation, other than loans to
members, and to perform such other duties as
the members may, from time to time, authorize.
No member of the Board of Directors or of
the Credit Committee or of the Supervisory
Committee shall receive any compensation for
services as a member of said Board or Commit-
tee. Acts 1925, pp. 165, 172.
§ 2366(210). Credit Committee; approval of
loans. — The Credit Committee shall approve
every loan or advance made by the corporation.
Every application for a loan shall be in writing,
on a form prepared by the Board of Directors,
and shall state the purpose for which the loan is
desired and the security, if any, offered. En-
dorsement of a note or assignment of shares in
any Credit Union shall be deemed security in
the meaning of this section. No loan shall be
made unless it has received the unanimous ap-
proval of the members of the Committee present
when the loan was considered, which number
shall constitute at least a majority of the com-
mittee, nor if any member of the Committee
shall disapprove thereof. An applicant for a loan
may appeal to the Directors from the decision of
the Credit Committee, if it is so provided in the
By-laws and in the way and manner therein pro-
vided. The Credit Committee shall meet as of-
ten as may be required, after due notice has been
given to each member. Acts 1925, pp. 165, 173.
§ 2366(211). Supervisory Committee; inspec-
tions. — The Supervisory Committee shall, at
frequent intervals, inspect the securities, cash
and accounts of the Credit Union and supervise
the acts of the Board of Directors, Credit Com-
mittee and officers, any or all of whom the Super-
visory Committee may, at any time, by a unani-
mous vote, suspend. Within seven days after
such suspension, the Supervisory Committee
shall cause notice to be given to the members of
a special meeting to take action on such suspen-
sion, the call for the meeting to indicate clearly
its purpose. By a majority vote the committee
may call a meeting of the shareholders to con-
sider any violation of this Act or of the By-laws
or any practice of the Credit Union, which, in
the opinion of the said committee is unsafe and
unauthorized. The Committee shall fill vacan-
cies in their own number until the next meeting
of the members. At the close of the fiscal year
the Supervisory Committee shall make or cause
to be made a thorough audit of the receipts, dis-
bursements, income, assets and liabilities of the
Credit Union for the said fiscal year and shall
make a full report thereon to the directors,
which report shall be read at the annual meeting
and shall be filed and preserved with the records
of the Credit Union. Acts 1925, pp. 165, 174.
§ 2366(212). Capital; lien; cancellation of
shares; entrance fee; transfer of shares. — The
capital of the Credit Union shall consist of the
payments that have been made to it by the sev-
eral members thereon on shares. A Credit Un-
ion shall have a lien on the shares of any mem-
bers and on the dividends payable thereon for
and to the extent of any loan made to him and of
any dues and fines payable by him. A Credit
Union may, upon the resignation or expulsion
of a member, cancel the shares of such member
and apply the withdrawal value of such shares
toward the liquidation of such member's indebt-
edness. A Credit Union may charge an entrance
fee, as may be provided in the By-laws. Fully
paid up shares of a Credit Union may be trans-
ferred to any person upon election to member-
ship, upon such terms as the By-laws may pro-
vide and upon the payment of a transfer fee
which shall not exceed twenty-five cents. Acts
1925, pp. 165, 174.
§ 2366(213). Shares in trust.— Shares may be
issued and deposits received in the name of a
minor and in trust and in such way and manner
as the By-laws may provide. Acts 1925, pp. 165,
175.
§ 2366(214). Loans to members and officers. —
A Credit Union may lend to its members at
reasonable rates of interest, which shall not ex-
ceed one per cent a month, for such purposes
and upon such security as the By-laws may pro-
vide and the Credit Committee shall approve,
and invest its funds as therein provided. A
member who needs funds with which to pur-
chase necessary supplies for growing crops may
receive a loan in fixing monthly installments in-
stead of one sum. A borrower may repay the
whole or any part of his loan on any day on
which the office of the corporation is open fo*
the transaction of business.
No officer, director or member of the Credit or
Supervisory Committee shall be allowed to bor-
row from the corporation or to become endorser
for a borrower, without a favorable vote of the
member stockholders in special meeting called
for the purpose of passing on the specific loan or
loans. Acts 1925, pp. 165, 175.
§ 2366(215). Fees; reserve fund.— All entrance
fees, transfer fees and charges shall, after the pay-
ment of the organization expenses, be known as
reserve income and shall' be added to the reserve
fund of the Credit Union. At the close of each
fiscal year there shall be set apart to the reserve
fund twenty per cent of the net income of the
corporation which has accumulated during the
year. The members, at an annual meeting, may
increase the proportion of the profits which is
required by this section to be set apart to the re-
serve fund or to decrease it when the reserve
fund equals the paid in capital of the Credit
Union. The reserve fund shall belong to the cor-
poration and shall be held to meet contingencies
and shall not be distributed to the members except
upon dissolution of the corporation. Acts 1925,
pp. 165, 175.
§ 2366(216). Dividends.— At the close of the
fiscal year a Credit Union may declare a divi-
dend from the net earnings. Dividends shall be
paid on all fully paid shares outstanding at the
close of the fiscal year, but shares which may
become fully paid during the year shall be en-
titled to a proportional part of such dividends
calculated from the first day of the month fol-
lowing such payments in full. Acts 1925, pp.
165, 176.
§ 2366(217). Expulsions and withdrawals. —
At any regular or called meeting of the mem-
[574]
§ 2366(218)
CANAL COMPANIES
§ 2370
bers, by a two-thirds vote of those present, the
members may expel from the corporation any
member thereof. A member may withdraw
from a Credit Union and a non-member may
withdraw deposits, as hereinafter provided, by
filing a written notice of such intention. All
deposits of an expelled or withdrawing member,
with any interest accrued, shall be paid to such
member, subject to sixty days notice, and after
deducting any amounts due to the corporation
by such members, said expelled or withdrawing
member shall have no further right in said
Credit Union or to any of its benefits, but such
expulsion or withdrawal shall not operate to re-
lieve said members from any remaining liability
to the corporation. Acts 1925, pp. 165, 176.
§ 2366(218). Liquidation. — Any Credit Union
may go into voluntary liquidation and surrender
its charter and franchises, by complying with the
laws of the State, for the voluntary liquidation
and dissolution of banks, which said laws are
hereby made applicable to the voluntary liquida-
tion or dissolution of Credit Unions, except that
the fees to be paid to the Secretary of State shall
be $10.00, instead of $25.00, and except that the
application to surrender the charter shall be pub-
lished once a week for two weeks instead of four
weeks. Acts 1925, pp. 165, 176.
§ 2366(219).' Change of place of business. — A
Credit Union may change its place of business
on written notice and approval of the Superin-
tendent of Banks. Acts 1925, pp. 165, 177.
§ 2366(220). Taxation.— Credit Unions shall
not be subject to any tax except the ad valorem
tax upon property imposed by the Constitution
of this State, unless made subject thereto by ex-
press provision of law specifically naming Credit
Unions and making them subject thereto. Acts
1925, pp. 165, 177.
§ 2366(221). Effect of partial invalidity. — If any
provision of this Act shall be held to be uncon-
stitutional such provision alone shall be invalid
and other parts of this Act shall be unaffected
thereby and shall be and remain of full force and
effect. Acts 1925, pp. 165, 177.
ARTICLE 2.
Canal Companies.
§ 2367. (§ 1986.) Canal companies, how incor-
porated.— Any number of persons, not less than
five, desiring to be incorporated as a company
for the purpose of constructing, operating, and
maintaining a canal, may file with the secretary
of State a petition setting out the names and
domicile of the petitioners, that they desire to be
incorporated as a canal company, the name under
which they desire to be incorporated, the route
as nearly as possible of the proposed canal, the
headquarters of the corporation, the amount of
the capital stock and the number of shares into
which divided; and pay to the secretary of State
a fee of one hundred dollars to be covered by
him into the treasury of the State. Acts 1893,
p. 81.
See generally, 3 Cum. Dig. 136, 2 Enc. Dig. 627. As to
amendment of Charter, see § 2197.
[5
§ 2368. (§ 1987.) Certificate.— Thereupon the
secretary of State shall issue to the petitioners a
certificate as follows:
Georgia. To whom it may concern — Greetings:
— —having filed their petition in the terms
of the law, praying to be incorporated as a canal
company, they and their associates and succes-
sors are hereby declared to be a body corporate
for the period of thirty years, under the name of
■, with power to construct, maintain, and
operate a canal in and through , with such
powers, privileges, and liabilities as now or here-
after prescribed by law.
Witness my official hand and seal of State,
this day of , 18—. Acts 1893, p. 81.
§ 2369. (§ 1988.) How organized. — Upon the
issuance of the certificate, the persons therein
named, their associates and successors, shall be
and become a body corporate for the period of
thirty years. Said petitioners shall constitute
the first board of directors; they shall organize
by electing one of their number president, and
such other officers as may be necessary , pre-
scribe rules and by-laws, and open books of sub-
scription for the capital stock. When all the capi-
tal stock has been subscribed for and ten per cent
thereof paid in, notice of that fact shall be pub-
lished three times in the public gazette in which
the sheriff's sales are advertised in the county in
which is situated the principal office of the cor-
poration. When this has been done the corpora-
tion is authorized to begin the transaction of
business, but not before; and the directors and
stockholders of said corporation shall be person-
ally liable for all obligations incurred prior to a
compliance with the foregoing requirements.
Acts 1893, p. 81.
See § 2220.
§ 2370. (§ 1989.) General corporate powers. —
All companies incorporated under this Article
shall have power to sue and be sued, make con-
tracts, lease, purchase, hold, and sell such prop-
erty, real and personal, as may be necessary for
the purpose of the corporation; construct and
maintain a canal and branch canals, dams, races,.
weirs, aqueducts, reservoirs, tow-paths, and all
other appliances necessary to divert, take, or use
the water of any stream or body of water in the
State: Provided, they shall not, by building any
dam in or across, or by diverting water from any
navigable stream, destroy or obstruct the navi-
gation of said stream: Provided further, that
such fishways shall be placed in any dams at the
time of the construction of the dam as the fish
commissioner of the State shall direct, and said
rishways shall be kept in good order and repair
by the canal company, and said company shall
notify the fish commissioner of the proposed
construction of any dam: And provided further,
that they shall pay such landholders as may
have riparian rights in any stream or body of
water taken, diverted, or obstructed reasonable
compensation therefor or for any damage done
them. They may also enter upon, take, and ap-
propriate any lands and tenements necessary and
appropriate for the purposes of the corporation,
upon first paying reasonable compensation there-
for: Provided, however, that no company in-
i corporated hereunder shall have power to con-
75 ]
§ 2371
EXPRESS COMPANIES
§ 2381
struct or use any canal within the corporate
limits of any incorporated city, town, or village,
without first obtaining the consent of the proper
corporate authorities of such city, town or vil-
lage. Acts 1893, p. 81.
§ 2371. (§ 1990.) Disputes as to value of lands
taken. — When any person or corporation shall
feel aggrieved or damaged by any appropriation
to the use of said company of any of his or their
lands, tenements, or riparian rights, and can not
agree with the company as to the amount of
damage, the amount of such damage shall be
ascertained as provided in this Code. Acts 1893,
p. 81.
For full treatment of the right of canal corporations to
exercise the power of eminent domain, see 5 Fnc. Dig. 32.
§ 2372. (§ 1991.) Enlargement. — Any company
incorporated under this Article is authorized to
§ 2377. (§ 1996.) Increase or diminution of
capital stock. — All companies incorporated un-
der this Article may increase or decrease their
capital stock by a majority vote of the stock-
holders of the corporation at any meeting called
for the purpose, filing with the secretary of State a
transcript from the minutes of the company
showing the action of the company in increasing
or decreasing the stock. Acts 1893, p. 83.
See § 2201.
§ 2378. (§ 1997.) Principal office to be in Geor-
gia.— The principal office of all companies in-
corporated hereunder shall be always in this
State. Acts 1893, p. 83.
§ 2379. (§ 1998.) Petition for charter to be kept
of file. — The secretary of State shall keep on file
all petitions for incorporation and transcripts
from minutes provided for in this Article, and
enlarge any of the works or appliances of said shall also keep a book in which shall be entered
canal or branch canals, and enlarge said canal
anywhere along the line of the same, by deepen-
ing and widening the same, making basins,
dams, reservoirs, or otherwise; also to construct
and build branch canals to and from said canal from
any and all points, with the same privileges and
rights as are granted in constructing the main
canal and other works, and construct any dams,
races, waste-weirs, weirs, tow-paths, and other
structures, to improve and make available said
canal or canals, under the same limitations as
already set out in this Article. Acts 1893, p. 81.
§ 2373. (§ 1992.) May furnish water to others.
— All such companies are authorized to allow wa-
ter to be drawn from said canal for the purpose
of propelling machinery, irrigating lands, fur-
nishing water for drinking, fire, or any purpose
that the board of directors may deem proper at
any points along the line of the same, and charge
for the use of said water. Acts 1893, p. 82.
§ 2374. (§ 1993.) May permit goods, etc., to be
conveyed through canals, — All companies incor-
porated hereunder may permit all goods, lumber,
rafts of every description, vessels of every kind,
and all other things that can be transported, to
be conveyed through said canal, and may collect
such rates of toll as they may deem proper
therefor. Acts 1893, p. 82.
As to degree of care required as to timber, see 2 Fnc.
Dig. 672.
§ 2375. (§ 1994.) Encroachment upon public
roads. — Whenever any canal or backwaters of
any company incorporated hereunder shall en-
croach upon or cross any public road, said
company shall restore said road to a condition
suitable for use by the public, by bridges or oth-
erwise. All bridges constructed under the pro-
visions of this section shall be built and main-
tained in good order at the expense of the canal
company. Acts 1893, p. 82.
See 2 Enc. Dig. 672.
by him the name of the company, date of incor-
poration, amount of capital stock, location of
principal office, and any increase or decrease of
caoital stock. Acts 1893, p. 83.
See § 2209.
§ 2380. (§ 1999.) Corporation to be subject to
taxation. — The above-named corporations shall
be subject to State, county, and municipal tax-
ation. Acts 1893, p. 83.
For full treatment of canal companies generally, see 3
Cum. Dig. 136, 2 Enc. Dig. 627.
§ 2376. (§ 1995.) Mortgage of canal.— Com-
panies incorporated under this Article may
mortgage, sell, or lease their canal and other
properties, corporate rights and franchises, to
obtain money to purchase, construct, or main-
tain their works and franchises, to any person or
corporation. Acts 1893, p. 82.
[576]
ARTICLE 3.
Express Companies.
§ 2381. (§ 2000.) Express companies, how in-
corporated.— Upon any number of persons not
less than five filing a petition with the secretary
of State, setting forth that they desire to be in-
corporated as an express company, the name
under which they desire to be incorporated, the
amount of capital stock which said company pro-
poses to have, the place where the principal of-
fice of said company is to be located, and the
States, Territories, and countries in which said
company proposes to operate, and paying to the
secretary a fee of one hundred dollars to be cov-
ered by the secretary into the treasury of the
State, the secretary shall issue to the petitioners
the following certificate, to wit:
State of Georgia. To whom it may concern —
Greeting:
having filed their petition in terms of
the statute in such case provided, they and their
associates and successors are hereby created and
declared a body corporate for the period of thirty
years, under the name of , for the purpose
of carrying on an express business in -,
with a capital stock of dollars, with its
principal place of business at , in the
county of , Georgia, with the powers, du-
ties, and liabilities as now or hereafter prescribed
by the laws of this State.
Witness my official hand and seal of this State,
this day of , 18 — . Acts 1893, p. 84.
See §§ 2209, 2660, 6446. For full treatment of express
companies generally, see 6 Cum. Dig. 100, 6 Fnc. Dig.
126. As to amendment of charters, see § 2197. As to
change of name or capital stock, or place of business, see
§ 2201.
§ 2382
INSURANCE COMPANIES
§ 2387(1)
§ 2382. (§ 2001.) Organization. — The petition-
ers shall be the first directors of said company,
and upon receiving the prescribed certificate shall
organize by electing one of their number presi-
dent, and such other corporate officers as may
be necessary; they shall open books of subscrip-
tion to the capital stock of said company. When
all the capital stock has been subscribed for and
one tenth in amount actually paid in, notice of
that fact shall be published in the newspaper in
which the sheriff's notices are published in the
county of the principal office of said company at
least three times; whereupon said company may
begin the transaction of business, but not before.
If the transaction of any business is commenced
except upon compliance with the above require-
ments, the corporators and stockholders shall be
personally liable for all obligations incurred
prior to a full compliance with the requirements
of this section. Acts 1893, p. 84.
As to organization before capital subscribed for, see §
2220.
§ 2383. (§ 2002.) General corporate powers. —
Any company incorporated under the provisions
of this Article is authorized to sue and be sued,
to have a corporate seal, to contract and be con-
tracted with, to take bonds of indemnity with
security from their agents and employees, to ac-
quire by purchase, devise, or otherwise, and to
hold, real and personal estate of any value to the
amount necessary and proper for the purpose for
which the company is incorporated, to sell,
mortgage, or otherwise dispose of the same, to
appoint all necessary officers, to make rules, reg-
ulations, by-laws, and ordinances for the control,
direction, management, and operation of their
affairs and business, not inconsistent with the
laws of this State or of the United States, and to
have, enjoy, and exercise all the rights, powers,
and privileges pertaining to corporate bodies,
and necessary for the purpose for which such
corporation is created within the State of Geor-
gia, and within all the States and Territories of
the United States, and within any foreign coun-
tries enumerated in the certificate of incorpora-
tion, that shall permit or suffer the exercise of
said corporate powers within its or their limits.
Acts 1893, p. 84.
See § 2662. As to common power of all corporations,
see § 2216.
§ 2384. (§ 2003.) Principal office to be in
Georgia. — All companies incorporated under this
Article shall always have their principal office in
this State. Acts 1893, p. 84.
See § 2209.
§ 2385. (§ 2004.) Express companies' venue. —
The court sitting in the county where goods are
received for shipment, or where goods are to be
delivered, shall have jurisdiction over all express
companies which now do or may hereafter do
business in this State, and the judgment shall
bind all the property of said companies. Acts
1862-3, p. 162; 1865-6, p. 222.
See § 2259.
Office, Agent or Agency Unnecessary. — Where a corpora-
tion is an express company with its principal official by its
charter in Richmond county, Georgia, it may be sued in
Bibb county, Georgia, though at the time of the suit it had
no office, agent, or agency in Bibb county and was not
transacting business there. Ellis v. Southern Express Co.,
157 Ga. 629, 122 S. E. 48.
Not Applicable to Mandamus — This section does not ap-
ply to mandamus to compel a domestic express company
to receive goods for transportation over its line, manda-
mus must be instituted in the county of the corporation's
domicile. Sprinkle Co. v. So. Express Co., 141 Ga. 21,
80 S. E. 288. In this case the court said that the provisions
of this section clearly indicate that the section applies to
cases for damage, or at least a judgment for money. Ed.
Note.
Effect of Charter Provisions. — The rule of jurisdiction
provided by this section is not affected by charter pro-
vision as to where the company will be liable. Southern
Express Co. v. B. R. Electric Co., 126 Ga. 472, 55 S. E.
254.
§ 2386. (§ 2005.) Express companies may be
sued, how. — Any express companies may be ef-
fectually sued in any proceeding against them
(in all cases where their chief officer does not
reside in this State), by leaving the petition,
writ, subpoena, attachment, or other original
process necessary to commence the same, at any
of the offices of such company doing business in
this State, or by serving the same upon any
agent of said company within this State; and the
judgment or decree obtained in cases so com-
menced shall bind the property of the defendant
as fully as though service had been effected on
the president or other chief officer. Acts 1862-3,
p. 162; 1865-6, p. 222.
Editor's Note. — This section should read "All express
companies." The wording "Any express companies" is ob-
viously grammatically incorrect.
In holding this section inapplicable to mandamus pro-
ceedings, the court, in Sprinkle Co. v. Southern Express
Co., 141 Ga. 21, 22, 80 S. E. 287, quoted the section and in-
serted after the word "sued" the word "served" followed
by a question mark, thus: "Any express companies may
be effectually sued [served?], etc.
§ 2387. (§ 2006.) Name of chief officer to be
posted. — When the chief officer of any express
company shall reside in this State, it shall be the
duty of such company to post in a public and
conspicuous place, at each office where it trans-
acts business, the name of its president or other
chief officer on whom service can be perfected
in this State; otherwise, service made as pro-
vided for in the preceding section shall be
deemed sufficient and proper service. Acts 1862-
3, p. 162; 1865-6, p. 222.
Effect on Service. — Construing this section it has been
held that service on an agent in the county where suit is
instituted is incomplete where the president or chief offi-
cer resides in Georgia and his name has been posted as di-
rected by this section. Conner v. Southern Express Co.,
37 Ga. 397.
It is only where the president of an express company re-
sides in this State, that service of process is required to
be made upon him by this section. Posting his name in
each office where the company transacts business, is of
no efficacy unless he resides here, whether his office be
in the State or not. Southern Express Co. v. Skipper, 85
Ga. 565, 11 S. E. 871.
After judgment against the company upon a summons
of garnishment served upon the local agent alone, the serv-
ice will be held sufficient until the judgment is set aside,
unless it affirmatively appears that the president resides in
this State at the time of such service. Southern Express
Co. v. Skipper, 85 Ga. 565, 11 S. E. 871.
ARTICLE 4.
Insurance Companies
SECTION y-z.
Insurance Department.
§ 2387(1). Establishment of department; in-
surance commissioner, etc.; seal; records and
Ga. Code— 19
[577 ]
§ 2387(a)
INSURANCE DEPARTMENT
§ 2387(3)
reports.— There shall be established in this State
in the office of the Comptroller-General, a De-
partment which shall be called the "Insurance
Department of the State of Georgia," and which
shall be charged with the enforcement of the
laws which have been or may hereafter be passed
relating to insurance. Its chief officer shall be
the Comptroller-General, who shall be styled
"Insurance Commissioner." Whenever _ in this
Act the designation "Insurance Commissioner"
or "Commissioner" is used, it shall be held to
mean the chief officer of the Insurance Depart-
ment of the State of Georgia. The Insurance
Commissioner shall exercise the powers and per-
form the duties conferred and imposed uponhim
by this Act or any other law of the State. _ He
may appoint a Deputy Insurance Commissioner
to assist him in the discharge and performance
of his duties, and in the event of a vacancy in the
office of Insurance Commissioner, or in his ab-
sence or disability for any reason, the Deputy
shall perform all the duties required of the In-
surance Commissioner. The said Deputy shall
execute a bond with proper security in the sum
of Five Thousand ($5,000) Dollars, said bond
to be approved by the Insurance Commissioner
and conditioned upon the faithful performance of
his duties. The said Deputy shall be removable
at the pleasure of the Commissioner. The In-
surance Commissioner may also appoint a clerk
in addition to the one already employed by the
Comptroller, and a Fire Inspector whose powers
and duties are hereinafter prescribed. The Com-
missioner shall have an official seal of such device
as he shall, with the approval of the Governor
select. Every certificate and other document or
paper executed by such Insurance Commissioner
in pursuance of any authority conferred upon
him by law and sealed with the seal of his office,
and all copies of papers certified by him and au-
thenticated by said seal, shall in all cases be
evidenced equally and in like manner as original
thereof and shall have the same force and effect
as the original would have in any suit or pro-
ceeding in any court in this State. The office of
the Insurance Commissioner shall be deemed a
public office and the records, books and papers
thereof, on file therein, shall be deemed public
records of the State, except as may be provided
otherwise herein. The Commissioner shall pub-
lish and report annually to the Legislature his
official transactions, and shall include in such
report abstracts of the annual statements of the
several insurance companies and bonding and
fidelity companies and an exhibit of the financial
condition and business transactions of the said
companies as disclosed by official examinations
of the same or their annual statements. He shall
include therein a statement of receipts and ex-
penditures of the Department for the preceding
year, and such other information and recom-
mendations relative to insurance and insurance
laws of the State as he shall deem proper. Acts
1912, pp. 119, 120.
§ 2387(2). Collection of fees and taxes. — The
Commissioner shall collect the charges, fees and
taxes as now provided by law and give proper
receipts therefor, and at the end. of every calen-
dar month, or oftener, in the discretion of the
Commissioner, shall pay into the State Treas-
ury, all amounts collected by him. Acts 1912,
pp. 119, 121.
§ 2387(3). Examination of insurance com-
panies.— The Insurance Commissioner may at
any time have the right to examine into the af-
fairs of any insurance company doing business
as an assessment, fraternal, industrial and chari-
table or otherwise, in this State, and into the
affairs of any company organized under the laws
of any other State, having an office in this State,
which company is engaged in or is claiming or
advertising that it is engaged in organizing or
receiving subscriptions for or disposing of stock
of, or in any manner aiding or taking part in the
formation or business of an insurance company
or companies, or which is holding capital stock
of one or more insurance company or companies
for the purpose of controlling the management
thereof or as voting trustee or otherwise. For
such purpose he may appoint as examiners one
or more competent persons, not officers of, or
connected with, or interested in any insurance
company, other than as policyholders, and upon
such examination, he, his deputy or any exam-
iner authorized by him, may examine under oath,
the officers and agents of such company, and all
persons deemed to have material information re-
garding the company's property or business.
Every such company, its officers and agents,
shall produce at the office of the company, where
the same are kept its books and all papers in its
possession relating to its business, and any other
persons may be required to produce any book or
paper in his custody relevant to the examination
for the inspection of the Commissioner, his
deputies or examiners whenever required; and
the officers and agents of such company shall
facilitate such examination and aid the exam-
iners in making the same so far as it is in their
power to do so. Every such examiner shall
make a full and true report of every examination
made by him, verified by his oath, which shall
comprise only facts appearing upon the books,
papers, records or documents of such company,
or ascertained from the testimony sworn to of its
officers or agents or other persons examined un-
der oath concerning its affairs, and said report so
verified shall be presumptive evidence in any
action or proceeding against the company, its
officers or agents as to the facts therein stated.
The Insurance Commissioner shall grant a hear-
ing to the Company examined before filing any
such report; and may withhold any such report
from public inspection for such time as he may
deem proper, not to exceed sixty days, and may
after so filing, if he deems it for the interest of
the public to do so, publish any such report or
the result of any such examination in one or
more newspapers of the State. It shall be the
duty of the Insurance Commissioner to examine
every domestic insurance company at least once
in five years. The expense of all examinations
of insurance companies now required by law,
and the expense of all examinations of such
companies as contemplated by this Act, shall be
paid by the companies so examined; provided,
this Section shall not apply to assessment far-
mers co-operative fire insurance companies do-
[578]
I 2387(4)
INSURANCE DEPARTMENT
§ 2387(11)
ng business in this State in not more than four
bounties in a division. Acts 1912, pp. 119, 121.
As to violation of this section, see § 626 (1), P. C.
§ 2387(4). Blank forms furnished for reports.
-The Commissioner shall annually in the month
if December furnish to each of the insurance
ompanies authorized to do business in this
vtate and required to make annual statements to
he Department, two or more blanks in form ap-
>roved by him and adapted for such statements,
^cts 1912, pp. 119, 125.
§ 2387(5). Orders, how enforced. — The Insur-
.nce Commissioner may invoke the aid of any
rourt of competent jurisdiction through in-
unction or other proceedings, mandatory or
>therwise, to enforce any order made or action
aken in pursuance of the law, and nothing con-
ained in the insurance laws of this State shall be
:onstrued to prevent any company or person
iffected by any order or action of the Insurance
Zommissioner from testing the validity of same
n any Court of competent jurisdiction. Acts
912, pp. 119, 126.
§ 2387(6) Rules and regulations. — The Insur-
mce Commissioner shall have full power and
luthority to prescribe such additional reasonable
ules and regulations as he may deem proper for
he control and government of all insurance
:ompanies mentioned in this Act. It shall be the
luty of such companies to comply fully with
;uch rules and regulations before they shall pro-
:ure any business in this State, either directly
)r indirectly, or to continue to do business in
his State. Acts 1912, pp. 119, 126.
§ 2387(7). Compensation of officers. — The of-
icers of the Insurance Department heretofore
nentioned shall be paid the following salaries:
rhe Insurance Commissioner, $3,000.00 per an-
lum; the Deputy Insurance Commissioner, who
mall be a man of actuarial experience, $3,000 per
mnum; and the additional Clerk of the Depart-
ment, $2,000.00 per annum. All of said sums to
3e paid out of the State Treasury as is now pro-
vided by law for the payment of salaries of all
State House officers, except $500 of the salary of
:he additional clerk which shall be paid out of
insurance fees, and the said officers of the Insur-
ance Department herein enumerated shall not
receive any other fees or compensation whatso-
ever. Provided, that in no event shall the sala-
ries paid said officials exceed the fees received
under the provisions of this Act. Acts 1912, pp.
119, 128; 1919, p. 283.
Editor's Note. — This section, taken from the Acts of
1912, was amended in 1919. The amendment increased the
salary of the additional clerk from $1500 to $2000 per annum,
and provided that the amount of this increase should be
paid out of insurance fees.
§ 2387(8). Fees, taxes, etc. — All fees, license
taxes and other dues and taxes now imposed by
the laws of this State and by this Act on insur-
ance companies, shall be collected as now pro-
vided by law, and paid into the State Treas-
ury as hereinbefore provided. Acts 1912, pp.
119, 129.*
§ 2387(9). State fire inspector; assistant; du-
ties; powers.— -The commissioner shall have the
power, as hereinbefore provided, to appoint a
[5
competent person to be known as State Fire In-
spector, and also a person to be known as As-
sistant State Fire Inspector, and when any
property is destroyed by fire, and the commis-
sioner deem it proper to have the cause of such
fire investigated, he shall cause such State Fire
Inspector, or the Assistant State Fire Inspector,
to make a thorough investigation of all the facts
connected with such fire and report to him in
writing under oath. Such Inspector, or his Assis-
tant, when in his opinion such proceedings are
necessary shall take the testimony of all persons
supposed to be cognizant or have information or
knowledge in relation to the matter as to which
the examination is herein required to be made,
and he shall cause the same to be reduced to
writing, and if he shall be of the opinion that
there is evidence sufficient to charge any person
with the crime of arson, he shall cause such per-
son to be arrested on a warrant, and cause the
same to be fully investigated before an officer as
is now provided for committal trials, or he shall
furnish the Solicitor General of the circuit in
which the fire occurred all such facts, together
with the names of witnesses, and all the informa-
tion obtained by him in such investigation. Such
Fire Inspector, and his assistant, appointed to
conduct such examination, shall have the same
power as justice of the peace for the purpose of
summoning before him, in the county where the
fire occurred, and compelling the attendance in-
stanter or at such other time as may be desig-
nated by the said State Fire Inspector, or his
assistant, to testify in relation to any matter
which, by the provisions of this Act is the sub-
ject of investigation. Said State Fire Inspector,
or his assistant, shall have the right to adminis-
ter oaths to witnesses appearing before him, and
shall have the power to compel witnesses to
answer questions pertaining to any investigation
as now provided by law for committal courts,
and said Inspector, and his assistant, shall have
all the powers now conferred by law on courts of
inquiry in this State in the investigation of any
matter coming before him under this Act. The
office of Assistant Fire Inspector shall be filled
by the Commissioner, and he shall be continued
in office for such term, and at such compensation
as the exigencies of the department may, in the
discretion of the Commissioner, warrant and
require. Acts 1912, pp. 119, 131; 1922, pp. 120,
121.
Editor's Note. — All of this section pertaining to the as-
sistent fire inspector is new with the acts of 1922.
§ 2387(10). Inspector's authority to go upon
premises. — Said Fire Inspector for the purpose
of making the investigation required by this Act,
shall have authority to go upon the premises
where the fire occurred and make investigation
as to the cause and origin of fire. Acts 1912,
pp. 119, 132.
§ 2387(11). Inspector's compensation, how pre-
scribed and paid. — The Insurance Commissioner
shall have power to prescribe the compensation of
the Fire Inspector for all examinations required by
this Act, and said compensation shall be paid and
all other expenses incurred in such examination
shall be defrayed by the fire insurance companies
doing business in this State, and a tax of not more
79]
§ 2387(12)
INCORPORATION OF INSURANCE COMPANIES
§ 2390
than one-tenth of one per cent, in the discretion of
the Insurance Commissioner on the gross pre-
mium receipts of all such companies is hereby
levied for this purpose, to he collected by the In-
surance Commissioner as other taxes on premiums
are now collected. The Insurance Commissioner
shall keep a separate account of all moneys received
and disbursed under the provisions of this Section
and shall include them in his report to the Legisla-
ture, Provided, that should the amount thus
collected in any one year be in excess of the amount
required to meet the expenses herein contemplated,
such excess shall be held subject to the order of the
Commissioner to be used for the same purpose in
the succeeding year, Provided Sections 2387(10)
and 2387(11) &hall not apply to assessment farmers
co-operative fire companies doing business in this
State in not more than four counties in a division.
Acts 1912, pp. 119, 132.
§ 2387(12). Appropriation for payment of sal-
aries.— The sum of $7,500.00, or so much thereof as
may be necessary, be appropriated annually, and
the same is hereby appropriated for the pay-
ment of all salaries herein provided for and fixed
for the first year's service under this Act. Acts 1912,
pp. 119, 133.
§ 2387(13). Supervision of companies by com-
missioner.— Immediately upon the granting of the
charter to any insurance company, and before it
offers for sale any of its capital stock, such com-
pany so receiving a charter in this State or being
chartered in any other State and offering its stock
for sale in this State, before it has been organized
and procured a license to do business in this State,
shall come under the supervision of Insurance
Commissioner, and shall collect, hold and disburse
its funds under such rules and regulations, as In-
surance Commissioner may prescribe. The In-
surance Commissioner shall give directions as to
all use of funds so collected until same are invested
as the law directs and the company fully organized
and licensed to do 'business in the State, thereby
becoming subject to the rules and regulations here-
inbefore provided. Acts 1912, pp. 119, 136.
SECTION 1.
Incorporation of Insurance Companies.
§ 2388. (§ 2007.) Charters to insurance com-
panies.— All corporate powers and privileges to in-
surance companies in this State shall be issued and
granted by the secretary of State, upon the terms,
liabilities, restrictions, and subject to all the pro-
visions of this Article and the laws and Constitu-
tion of this State. If from any cause the secretary
of the State should be disqualified from issuing and
granting said powers, the duties required by this
Article to be preformed by the secretary of State
shall be performed by the comptroller-general.
Acts 1893, p. 73.
See §§ 6446, 2392. For a full, comprehensive and ex-
haustive treatment of insurance companies generally, see
7 Cum. Dig. 256. As to fees for incorporations, see § 2392.
As to incorporation of fraternal orders which are not pri-
marily insurance associations, see § 2877 (2) and note.
§ 2389. (§ 2008.) Formation of company and
petition.— Any number of persons not less than
five may form a company, but, before receiving a
certificate of incorporation under this Article, shall
first file a petition, addressed to the secretary of
State, in which shall be stated the name and resi-
dence of each of the persons desiring to form said
corporation; the name of the company; the kind or
kinds of insurance they propose to carry on; the
amount of the proposed capital stock; the number
of shares each of the petitioners agrees to take;
that they do in good faith intend to go forward
without delay to raise the capital stock and or-
ganize said company; a request to be incorporated
under the laws of this State; that they have given
thirty days notice of their intention to apply for
said charter, by the publication of said petition in'
the newspaper publishing the legal advertisements
of the county where the principal office of said
company is to be located, once a week for four
weeks before the filing of said petition. There
shall be annexed to said petition an affidavit made
by at least two of the persons forming said com-
pany, that the names subscribed are the genuine
signatures of the persons named therein, and that
the facts stated in the petition are true. Said peti-
tion thus sworn to shall be filed in the office of the
secretary of State, who shall indorse thereon the
date of the filing and record the same in a book to
be kept by him for that purpose. Acts 1893, p. 73.
Under this section the statements of the petition are re-
quired to be verified by affidavit. This shows a location
in a particular county, and thus indicates the domicile of
the corporation there; but the law makes no requirement
for naming in the petition for incorporation a particular
house or locality in the county as the home of the com-
pany. Georgia Fire Ins. Co. v. Cedartown, 134 Ga. 87, 88,
67 S. F. 410.
§ 2390. (§ 2009.) Form of certificate to be is-
sued.— When said petition has been filed in the
office of the secretary of State, he shall issue to
said company under the great seal of the State the
following form or certificate, to wit:
To all to whom these presents may come — Greet-
ing:
Whereas, In pursuance of an Act of the General
Assembly of the State of Georgia, approved
December 18th, 1893, and (naming the persons who
signed the petition) having filed in the office of
secretary of State a certain petition seeking the
formation of a corporation to be known as (insert
name), with a capital stock of $ , for the pur-
pose of organizing and running a (kind or kinds)
insurance company, and having complied with the
statutes in such cases made and provided; there-
fore, the State of Georgia hereby grants unto the
above-named persons, their successors and assigns,
full authority, by and under the said name of (in-
sert name), to exercise the powers and privileges
of a corporation for the purposes above stated, sub-
ject to the provisions of the Constitution of this
State, and all the laws, rules, and regulations gov-
erning insurance companies of force at the date of
this certificate, or that may hereafter become of
force either by constitutional or statute law, or by
any rules or regulations of the insurance commis-
sioner of this State or otherwise, which govern in-
surance companies in this State.
In witness whereof, these presents have been
signed by the secretary of State (or when he is
disqualified, by the comptroller-general), and to
[580]
§ 2391
INCORPORATION OF INSURANCE COMPANIES
§ 2396
which is annexed the great seal of the State, at At-
lanta, Georgia, this day of , 18 — . Acts 1893,
p. 74.
§ 2391. (§ 2010.) Corporate powers. — There-
after the persons who signed said petition, and all
persons who shall become stockholders in said
company, shall be a corporation by the name
specified in said certificate, and shall possess the
powers and privileges and be subject to the provi-
sions contained in this Article. Acts 1893, p. 74.
Powers Given Incorporators. — Where an application to
the secretary of State, for a charter for a fraternal bene-
ficiary order, in specifying the powers desired, recited
powers to the incorporators to govern and control the
corporation, and the secretary of State issued a certificate
of incorporation purporting to confer such powers, they
are not to he treated as conferring charter power on the
petitioners for incorporation to control the internal af-
fairs of the corporation after it has been organized. Emi-
nent Household of Columbian Woodmen v. Thornton, 134
Ga. 40S, 67 S. E. 849.
§ 2392. (§ 2011.) Fee. — Before the secretary, or,
when disqualified, the comptroller-general, shall
issue said certificate, the petitioners shall pay to
the treasurer of the State a fee of one hundred dol-
lars. Acts 1893, p. 74.
See §§ 6446, 2388.
§ 2393s (§ 2012.) Certificate prima facie evi-
dence of corporation's existence. — Any certificate
or a duplicate 'thereof, issued under this Article,
shall be prima facie evidence of the existence of
such corporation. Acts 1893, p. 74.
§ 2394. (§ 2013.) Capital stock. — When such
certificate has been issued, the persons named
therein, in case they have not taken the whole
capital stock, may open books of subscription to
fill up the capital stock of the company, and, after
giving such notice as they may deem expedient,
they may from time to time receive subscriptions
until the whole capital stock is subscribed. The
capital stock of said company shall be divided into
shares of one hundred dollars each, and shall not
be less than one hundred thousand dollars for each
class of insurance to be engaged in, and no in-
surance company chartered under this Article shall
commence the insurance business until at least this
amount for each class of insurance to the engaged
in is paid in cash, or invested in bonds of the United
States, of this State, or the cities or counties of this
State, estimated at their cash market value, or in
mortgages on real estate worth twice the amount
for which the same is mortgaged, which invest-
ment must be approved by the secretary of State,
or, when he is disqualified, by the comptroller-
general. When bonds of the cities or counties of
this State are invested in, the secretary of State, or
comptroller-general, as the case may be, shall re-
quire an opinion from the attorney-general of the
State that the bonds are good, legal, and valid
bonds, before approving the investment. Acts
1893, p. 75.
§ 2395. (§ 2014.) Organization. — When the
amount of the capital stock has been subscribed,
the persons named in said certificate are authorized
to call a meeting of the stockholders for the pur-
pose of organization, of which meeting every sub-
scribing stockholder shall have ten days notice
personally, or by depositing said notice in
the post-office, postage paid, directed to him at
the post-office nearest his usual place of residence.
At said meeting there shall be elected a board of
directors of not less than five, nor more than fif-
teen, to manage the affairs of said company, said
directors to be chosen by a majority vote of the
stockholders, each share of stock being entitled to
one vote; said election to be governed by such by-
laws as said company may prescribe; the persons
elected as directors to continue in office until others
are elected to fill their places. No person shall be
elected a director unless he be a stockholder, own-
ing stock in his own name, or as trustee, or per-
sonal representative, and who is qualified to vote
at the election at which he is chosen. If for any
reason the election is not held at the time ap-
pointed, the same may be held at any time there-
after on ten days notice to all stockholders; but at
any meeting of the stockholders or their legal rep-
resentatives, the notice may be waived, and an
election held at once. The directors shall elect
from their number a president, vice-president or
vice-presidents, secretary and treasurer, and such
other officers and agents as they may deem neces-
sary. The regular elections for directors shall be
annually, at such time and place as may be pre-
scribed in the by-laws of said company. All meet-
ings of directors of said company shall be held in
this State. A majority of said directors shall be
bona fide residents of Georgia. Acts 1893, p. 75.
§ 2395(1). Board of directors of life insurance
companies. — The Board of Directors of all life in-
surance companies chartered by the laws of this
State shall consist of not less than five nor more
than twenty members, a majority of whom must
be bona fide residents of this State, and the major-
ity of which Board shall constitute a quorum for
the purpose of transacting business. Acts 1912, pp.
119, 137.
§ 2396. (§ 2015.) Stock to be paid in before be-
ginning business, $100,000. — Said insurance com-
pany shall not begin business until at least one
hundred thousand dollars of the capital stock has
been paid in. The directors may require the sub-
scribers to pay the amount subscribed, in such in-
stallments as they may deem proper, which sums
they may lend until the company is ready to engage
regularly in business. If any subscriber shall
neglect to pay any installment required by resolu-
tion of the directors, the said board shall declare
his stock and all previous payments thereon for-
feited to the use of the company; but they shall not
declare it forfeited until they have served a notice
in writing on him personally, or by depositing said
notice in the post-office, postage paid, directed to
him at the post-office nearest his usual place of
residence, stating he is required to make such pay-
ment at the time and place expressed in such notice,
and if he fails to make the same, his stock and all
previous payments thereon will be forfeited for the
use of the company; which notice must be served
at least sixty days previous to the day on which
such payment is required to be made. Acts 1893,
p. 75.
Remedy Cumulative. — The remedy provided of cancella-
tion of the stock and forfeiture of payments is cumulative
only and does not prevent the corporation from proceeding
to collect the unpaid subscription by a suit upon the
[581]
§ 2397
INCORPORATION OF INSURANCE COMPANIES
§ 2401(1)
original contract. Graves v. Denny, 15 Ga. App. 718, 84
S. E- 187.
Amendment of Charter. — This section being of force, it
was not competent for the General Assembly to pass an
amendment to the charter of an insurance company not
embraced within any of the exceptions above referred to,
authorizing it to transact business without having the
required amount of capital stock or assets. Such an amend-
ment was a special law, within the meaning of the consti-
tution, in a case already provided for by a general law.
Georgia Empire Mutual Ins. Co. v. Wright, 118 Ga. 796,
45 S. E. 606.
Pleading. — A plea alleging that a subscriber to the capi-
tal stock of an insurance company was relieved from lia-
bility because the remedy of the company was to cancel
his stock and forfeit all previous payments to the company,
but which failed to allege that the requisite notice pre-
scribed by this section had been given to the delinquent
subscriber, or that the stock had in fact ever been can-
celled, is subject to demurrer. Graves v. Dennv, 15 Ga.
App. 718, 84 S. E. 187.
§ 2397. Stock may be increased or decreased.—
The capital stock of any fire-insurance company or-
ganized under the laws of this State, whether incor-
porated by special act of the General Assembly, or
by the secretary of State under the general law,
may be increased to such an amount as may be
desired by the stockholders of such company, or
said capital stock may be decreased to any sum,
not less than one hundred thousand dollars, as may
be desired by the stockholders of such company, at
a meeting of such stockholders, called for the
special purpose by order of the board of
directors of such company, of which meeting
notice shall be given to each stockholder (or in
case of death to his legal representative or heirs at
law), personally, or by mail addressed to his last
known residence, at least thirty days previous to
such special meeting, and such increase or decrease
shail be made in such manner as shall have been
determined by the stockholders at such meeting, it
requiring the vote of a majority in amount of the
entire capital stock of such company to authorize
such increase or decrease, and the manner of effect-
ing the same. If at such meeting the stockholders,
holding the majority in amount of such capital
stock, vote for such increase or decrease, the pro-
ceedings of the meeting must be reduced to writing
and entered upon the books or minutes of the com-
pany, and a copy thereof, verified by the president
or secretary thereof, shall be filed and recorded in
the office of the secretary of State, and when so
filed and recorded shall become an amendment to
the charter of said company, and a certified copy
thereof shall be evidence of all facts therein con-
tained, in all courts of this State, without further
proof: Provided, such increase or decrease shall be
approved by the comptroller-general as ex-officio
insurance commissioner of this State, to be evi-
denced by indorsing his approval on the said veri-
fied copy of such proceedings of said stockholders,
which indorsement shall be recorded in the office
of the secretary of State, together with said veri-
fied copy, and become a part thereof. Acts 1900,
p. 76.
See §§ 2201, 2197.
§ 2398. (§ 2016.) Stock deemed personalty. —
The stock in said insurance company shall be
deemed personal, and shall be transferable in the
manner prescribed by the by-laws of the company;
and no share shall be transferable until all previous
Acts
As
calls thereon shall have been fully paid in.
1893, p. 76.
As to what constitutes personal property, see § 3646.
to when transfer of shares complete, see § 2219.
This section was held to distinctly recognize that there
may be ownership of capital stock by a subscriber before
he has paid his subscription therefor. Georgia Eife Ins.
Co. v. Bell, 141 Ga. 502, 507, 80 S. E. 765.
§ 2399. (§ 2017.) Organization and commence-
ment of business, charter, etc. — All the powers and
privileges and said certificate of incorporation of
said insurance company shall cease and determine
at the expiration of two years from the date of said
certificate, if, at the expiration of said two years,
said company has not organized and commenced
business. Acts 1893, p. 76; 1902, p. 52.
§ 2400. (§ 2018.) Powers of life-insurance com-
panies.— Every life-insurance company incorporated
under this law shall have the power to insure the
lives of all persons who apply for insurance therein,
stand the necessary examinations, and comply with
such laws as may hereafter be enacted, and with
such reasonable requirements as the directors of
such company may establish; and to make any and
every insurance appertaining to or connected with
life risks.
For full treatment of life insurance companies generally,
see 8 Cum. Dig. 249, 8 Enc. Dig. 803.
§ 2401. (§ 2019.) Of fire-insurance companies. —
Any fire-insurance company incorporated under
this Article shall have authority to insure against
any loss by fire on all kinds of property, either real,
personal, or mixed; also against all the hazards of
the ocean or inland navigation, and transportation
of every kind; and is hereby granted the power to
insure all classes of property that is now or that
may hereafter be allowed to be insured by the laws
of this State; and may do any and all things neces-
sary for the purpose of carrying on a fire-insurance
company, not in conflict with the laws of this State,
or of the United States.
For full treatment of fire insurance companies generally,
see 6 Cum. Dig. 218, 6 Enc. Dig. 207.
§ 2401(1). Losses from lightning, explosives,
etc.; publication of petition; fee—The Secretary of
State for the State of Georgia is empowered to
grant to fire insurance companies, heretofore or
hereafter incorporated under the laws of the State
of Georgia, authority to cover by their policies
losses ascribable to lightning, explosives, storms of
every character, earthquake, hail, frost, snow, riot
and civil commotion, theft and sprinkler leakage,
provided the company desiring any one or more of
the powers herein mentioned shall file in the office
of the Secretary of State a petition, signed with its
corporate name, stating the name and character of
the corporation, the date of its charter and all
amendments thereto, that it desires an amendment
to its charter covering any one or more of the
powers herein mentioned, and shall file with such
petition a certified abstract from the minutes of the
Board of Directors of the said company, showing
that the application for the proposed amendment
has been authorized by a two-thirds vote of the
entire capital stock of the company at a meeting of
the stockholders called for the purpose by resolu-
tion of the said Board of Directors, notice of which
said meeting shall be mailed to each stockholder,
[582 ]
2402
INCORPORATION OF INSURANCE COMPANIES
§ 2409(1)
or, in case of death, to his legal representatives or
heirs at law, and addressed to his last known resi-
dence at least ten days previous to the day of said
meeting.
Affidavit, made and signed in due form of law by
the president or secretary, shall be attached to said
petition, showing that it has been published once a
week for four weeks in the newspaper in which is
published the Sheriff's Sales of the county in which
the principal office of said corporation is located.
And the said corporation shall pay to the Secretary
of State a fee of twenty-five dollars, to be covered
by him into the Treasury of the State. Acts 1921,
pp. 206-7.
§ 2402. (§ 2020.) Of accident-insurance com-
panies. — Accident-insurance companies, chartered
under this Article, shall have authority to insure
persons against accident, loss of life, or personal
injury; to provide a weekly indemnity to its mem-
bers in case of accident; and shall have all the usual
and ordinary powers incident to accident-insurance,
not in conflict with the Constitution and laws of
this State and the United States.
For full treatment of accident, casualty, health and in-
dustrial insurance companies, see 1 Cum. Dig. 60; 1 Enc.
Dig. 57.
§ 2403. (§ 2021.) Of live-stock-insurance com-
panies.— Live-stock-insurance companies, organized
under this law, shall have the power to insure
against loss arising from the death of or injury to
domestic animals, and shall have all powers incid-
ent to the live-stock-insurance business, which are
not in conflict with the laws and Constitution of
this State or of the United States.
See 8 Cum. Dig. 1340; 9 Enc. Dig. 104.
§ 2404. (§ 2022.) Contracts to be evidenced by
policy. — Contracts of insurance to be entered into
by any company organized under this Article shall
not be binding unless evidenced by a policy of in-
surance in writing or print, or both, and the
liability of said company, in case of loss sustained
by any policyholder, shall be governed by the terms,
stipulations, and conditions appearing upon the
face of the policy. No policy or other contract of
said corporation shall be binding except it be signed
by the president or vice-president and secretary or
assistant secretary of the company.
As to form and requisites of insurance contracts, see 7
Cum. Dig. 551.
In General. — The law of this state expressly requires a
contract of fire insurance to be in writing, and such con-
tract is not valid unless it is in writing. Athens Mutual
Ins. Co. v. Evans, 132 Ga. 703, 709, 64 S. E. 993; Sparks v.
National Union Fire Ins. Co., 23 Ga. App. 38, 42, 97 S. E-
462. See § 2470 and note thereto.
Filling Blanks. — It is not essential to the validity of a
policy that the company's agent, who filled blanks in the
policy, should have been clothed with written authority.
Smith v. Farmers Mutual Ins. Asso., Ill Ga. 737, 36 S.
E. 957.
§ 2405. (§ 2023.) Dividends. — The board of
directors of any company organized under this
Article may declare dividends out of the earnings
of said corporation: Provided, no dividend shall be
declared until the earnings are sufficient to pay the
same, after deducting all expenses and losses, and
after providing for such reserve as may be provided
for by law.
§ 2406. (§ 2024.) Stock dividends. — Corpora-
tions formed under this Article are empowered to
issue stock dividends in lieu of money dividends if
the board of directors shall so decide, and thereby
add to the capital stock, not to exceed the highest
limit of the capital stock of their charter.
§ 2407. (§ 2025.) Participation by policyholders
in net profits. — The board of directors may, after
providing for such reserve as may be required by
law, by a majority vote, give the holders of policies
of said company on any particular line or class of
insurance the right to participate in the net profits
of such company to such an extent, in such manner,
and upon such terms as the board of directors may
agree, the same to be plainly stipulated on the face
of the policy; and unless it be stipulated on the face
of the policy that the policyholder has the right to
participate, it shall not be lawful for any policy-
holder to participate in any of the profits of such
company. If the incorporators of any stock com-
pany see proper, they may embrace this principle
in their charter, stating therein the average amount
of dividends the stockholders shall receive on the
face value of their stock, in which case all net
profits above this dividend and the reserve shall be
paid as a dividend to all the policy-holders.
§§ 2408-2400: Repealed.
Sections 2408, 2409 were repealed by the act of 1918 (acts
1918, p. 120) and in lieu thereof the sections were amended
to read as they now appear in §§ 2409 (1) et seq. of this
code.
§ 2409(1). Investments by insurance com-
panies; conveyances and purchases of realty, etc. —
Every insurance company organized and doing
business by virtue of the laws of this State shall
have authority to invest its money or assets in, and
make loans on, any and all bonds or securities
issued by the United States of America, the Dis-
trict of Columbia, or any State of the United States
of America, or of any county or city therein, also
any bonds of any township or school district there-
in, or bonds issued by the Federal Land Banks un-
der the provisions of the Act of Congress of the
United States of America of July seventeenth, one
thousand, nine hundred and sixteen; its amend-
ments and supplements; first lien on improved
real estate in any of the States of the United States
of America, not exceeding fifty per cent, of the
value of said property; promissory notes amply
secured by pledge of securities in which such com-
panies are authorized to invest their funds; loans
on their own policies not exceeding the reserve
thereon; to invest in a building for home office
purposes; provided, no company chartered under
the laws of Georgia shall hereafter invest in such
building unless its assets exceed one hundred
thousand dollars, nor shall such company invest
more than twenty-five per centum of its assets in
such building; provided further, that any such in-
vestment in a building for home office use shall
first be approved by the Insurance Commissioner;
in bonds in any solvent railroad or street railway
corporation, upon which no default in interest has
been made; and in any evidence of indebtedness
which may, under laws existing at this time, be
purchased or discounted by the Federal Reserve
Banks; but no insurance company shall acquire or
[583]
§ 2410
HOW AUTHORIZED TO DO BUSINESS
§ 2415
hold more than ten per centum of the securities of
any single corporation, nor shall more than ten
per centum of its assets be invested in the above
described securities of any single company. Such
insurance companies organized and doing business
by virtue of the laws of this State are authorized to
invest their funds in the investments and securities
aforesaid and shall not be required to obtain the ap-
proval of the Insurance Commission of Georgia in
making of such investments, except as herein pro-
vided, but should such insurance company desire to
invest their funds in investments and securities
other than those specified herein, they shall be re-
quired to first obtain the approval of the Insurance
Commissioner of this State. Such insurance com-
panies may also sell, assign, transfer and convey,
either with or without warranty, or either with or
without recourse upon it, as it may prefer, and
real estate, personal property, bond, note, mort-
gage, deed of trust, deed to secure debt, or other
form of property, or security in which it may have
invested its money or assets or made loans on as
allowed by law, and may also buy and sell any
realty that may be necessary for the protection of
any loan it may make. Acts 1918, p. 120; 1925, p.
92.
§ 2410. (§ 2028.) Reinsurance and reserve. —
Any company organized under this Article shall
have the right to reinsure any or all its risks; and
every company incorporated under this Article
shall provide for such reserve as may be required
by law.
§ 2411. (§ 2029.) Liability of stockholders. —
Stockholders in corporations organized under this
Article shall be individually liable to the extent of
their unpaid subscription to the capital stock, and
for no greater amount.
See 7 Cum. Dig. 530.
§ 2412. (§ 2030.) Mutual or co-operative com-
panies.— The preceding sections of this Article, in
so far as they are applicable, may be applied to the
formation of mutual or co-operative fire, live-
stock, life, or accident-insurance companies; but
applicants for this class of insurance shall not be
required in their petition to set out the amount of
the proposed capital stock or the number of shares
of the same; nor shall it be necessary for the secre-
tary of State to incorporate in his certificate of in-
corporation any reference to the capital stock of
said company. Acts 1895, p. 53.
See generally, 2 Cum. Dig. 706; 2 Eric. Dig. 330.
Fraternal Benefit Societies. — The General Assembly have
differentiated fraternal beneficiary associations from co-
operative and assessment companies; the latter are classed
as insurance companies, while the former are exempt from
the provisions of the insurance laws. See § 2869. Fra-
ternal Life & Acci. Asso. v. Evans, 140 Ga. 284, 288, 78 S.
E. 915.
It appears from the record that the plaintiff in error is
a fraternal beneficiary association, and, therefore, is exempt
from the requirement in this section that the constitution
or by-laws of insurance companies doing business in this
State shall not be received in evidence as a part of the
insurance policy, or as an independent contract, unless
embodied in or attached to the policy. The trial judge
erred in excluding from evidence the by-law of the plain-
tiff in error. Supreme Ruling of the Fraternal Mystic
Circle v. Blackshear, 13 Ga. App. 329, 79 S. E- 210. See
also Fraternal Life & Acci. Asso. v. Evans, 140 Ga. 284, 78
S. E. 915.
SECTION 2.
Insurance Companies, How Authorized to Do
Business.
§ 2413. (§ 2031.) Insurance commissioner. —
The comptroller-general shall be the insurance
commissioner of this State, and shall be charged
with the execution of all laws regulating the busi-
ness of insurance in the State of Georgia. Acts
1887, p. 113.
§ 2414. (§ 2032.) Companies must be licensed-
It shall not be lawful for any insurance company
chartered by this State, or other States, or foreign
government, to transact any business of insurance
in this State without first procuring a license from
the insurance commissioner. Acts 1887, p. 114.
Effect on Contracts. — No contract of insurance on prop-
erty located in this State is enforceable in this state, unless
the insurer, when the policy was written, was duly li-
censed to do business in this State. Jalonick v. Greene
County Oil Co., 7 Ga. App. 309, 66 S. E. 815.
§ 2415. (§ 2033.) License, how obtained.
Before said commissioner shall issue such license,
such insurance company must fully comply with
all of the provisions of this Article, and file with
said insurance commissioner a statement under
oath of its president and secretary, specifying —
First. The name and locality of the company.
Second. The condition of such company on the
thirty-first day of December then next preceding,
exhibiting the following facts and items in the
following form, namely:
1. The amount of the capital stock of the com-
pany, and what part of the same has been paid in
cash, and what part is in notes of the stockholders,
and how such notes are secured.
2. The property or assets held by the company,
specifying —
(1) The value, as near as may be, of the real
estate held by such company; if encumbered, to
what amount.
(2) The amount of cash on hand and deposited
in banks to the credit of the company.
(3) The amount of cash in the hands of agents
and in the course of transmission.
(4) The amount of loans secured by bonds and
mortgages on real estate.
(5) The amount of other loans, and how secured.
(6) The amount of bonds of this State, of other
States in the United States, and of any stocks
owned by the company, specifying the amount,
number of shares, and par and market value of
each kind of stock.
(7) The amount of interest actually due and un-
paid.
(8) The amount of premium notes on hand upon
which policies have been issued.
(9) The amount of all other assets, real and per-
sonal, not included hereinbefore.
Third. The liabilities of the company, specify-
ing—
1. The amount of losses due and yet unpaid.
2. The amount of claims for losses resisted by
the company.
3. The amount of losses' not yet due, including
those reported to the company on which no action
has yet been taken.
4. The amount of dividends declared and due and
remaining unpaid.
[584]
§ 2415(1)
HOW AUTHORIZED TO DO BUSINESS
§ 2417(3)
5. The amount of dividends declared but not yet
due.
6. The amount of money borrowed.
7. The amount of all other claims against the
company.
8. The amount of reserve for reinsurance.
Fourth. The income of the company during the
preceding year, specifying —
1. The amount of the cash premiums received.
2. The amount of notes received for premiums.
3. The amount of interest money received.
4. The amount of income received from other
sources.
Fifth. The expenditures during the preceding
year, specifying — •
1. The amount of losses paid during the year.
2. The amount of dividends paid during the year.
3. The amount of expense paid during the year,
including fees and commissions to agents and
officers of the company.
4. The amount paid in taxes.
5. The amount of all other payments and ex-
penditures.
Sixth. The greatest amount insured in any one
risk, and the total amount of insurance outstand-
ing.
Seventh. A certified copy of the act incorporating
the company.
See § 2434.
§ 2415(1). Issuance of licenses. — It shall be the
duty of the Insurance Commissioner to issue li-
cense to the insurance companies and agents when
they shall have complied with the requirements of
the laws of this State and the rules and regulations
prescribed by the Commissioner so as to entitle
them to do business. In each case, license shall
be issued under the seal of the Commissioner,
authorizing and empowering the person, firm, asso-
ciation or company to transact the kind of business
specified in the license. Before an insurance com-
pany shall be licensed to transact business in this
State, the Insurance Commissioner shall be satis-
fied by such examination as he may make or such
evidence as he may require that such company is
duly qualified under the laws of this State to trans-
act business herein. Acts 1912, pp. 119, 123.
From Whom License Required. — This section, requiring
insurance companies to procure licenses, was not rendered
applicable to the plaintiff by its contract insuring the de-
fendants against breakage of gears of automobiles on which
lubricant bought from it was used. Evans v. Refining Co.,
31 Ga. App. 303, 120 S. E. 553.
§ 2416. Forfeiture of license. — If any foreign,
fire, life, accident, fidelity, guaranty, or other in-
surance company doing business in this State shall,
without the consent of the other party to any suit
or proceeding brought against it in any court in
this State, remove said suit or proceeding to any
Federal court, it shall be the duty of the commis-
sioner of insurance to forthwith revoke all author-
ity to such company and its agents to do business
in this State, and to publish such revocation in
some newspaper of general circulation published in
this State. Acts 1909, p. 147.
See § 15.
§ 2417. Forfeited license, how renewed. — When
such license is forfeited as provided in the foregoing
section, said license may be renewed by the in-
surance commissioner upon terms to be prescribed
by him: Provided, such license shall not be re-
newed in less than two years from the date of its
forfeiture.
§ 2417(1). How licenses revoked. — Whenever
it shall appear to the Insurance Commissioner that
a license already granted to an insurance company,
should be revoked, the Insurance Commissioner
shall, by first giving such insurance company ten
days notice, require such company to show cause
before a board to be composed of the Insurance
Commissioner, the Attorney-General and the Gov-
ernor of the State why said license should not be
revoked. Upon the hearing of the said cause, the
said Board may in its discretion revoke such license
of any such insurance company or prescribe the
conditions upon which such insurance company
may be allowed to continue business in Georgia.
Acts 1912, pp. 119, 123.
§ 2417(2). Revocation for failure to pay judg-
ments.— If any insurance company, domestic or
foreign, doing business of insuring against loss or
damage resulting to the insured by reason of liabil-
ity assessed against the insured on account of
accident to, injuries to, or the death of any other
person, or injuries or damage to the property of
others, shall fail or refuse to pay off and discharge
any judgments rendered against such insured for
liability covered by such insurance written by said
company in this State, within thirty days after such
judgment shall have become first [final] by reason
of having been affirmed, or by reason of the time
within which proceedings to appeal from the same
having expired, or within thirty days from the pass-
age of this Act, as to judgments which shall have
become final at the time of its passage or prior
thereto, shall not be permitted or licensed to do
business in this State; provided, that this shall not
apply when the amount of the judgment exceeds
the amount of the insurance, and the company has
paid so much of said judgment as equals the
amount stated in its contract of insurance. The
failure of any such company to pay off the amount
of said judgment or the amount stated in its con-
tract of insurance, as the case may be, shall be a
ground for the revocation of any license granted to
it to do business in this State, and for the refusal to
grant or renew such license so long as said com-
pany fails to make such payment. The provisions
of this Act are cumulative of other provisions of the
laws of this State as to revoking the license of such
companies. Acts 1922, pp. 125, 126.
§ 2417(3). Hearing. — Whenever it shall be
brought to the attention of the Insurance Commis-
sioner that any company has failed to pay such
judgment under the circumstances stated in the
preceding section, it shall be the duty of the said
Insurance Commissioner, and it is hereby made
his duty, to notify the said company to show cause
before him in not less than five days why its license
to do business in Georgia should not be revoked.
Upon said hearing if it is made to appear to the
Insurance Commissioner that the said company
failed to pay a judgment, or so much thereof as is
required by this Act, under the circumstances pro-
vided in section 2417(2), it shall be the duty of the
Insurance Commissioner, and it is hereby made his
[ 585 ]
§ 2417(4)
BONDS AND DEPOSIT REQUIRED
§ 2419
duty, to declare the said company's license to do
business in Georgia revoked, and after such dec-
laration the company shall no longer be author-
ized to transact business in this State, except that
it shall be authorized to take such proper steps as
may be necessary to liquidate its existing business
in this State, but shall not be authorized to issue
any new policies of insurance. Acts 1922, p. 126.
§ 2417(4). Renewal of revoked license. — After
a company's license has been revoked under this
Act, the same may be renewed and reinstated by
the Insurance Commissioner whenever it is made
to appear to him that the judgment, or judgments,
of the kind provided in this Act, or so much there-
of as is required by this Act, have been paid, but no
company, the license of which may hereafter be re-
voked under the terms of this Act, shall have its li-
cense reinstated or renewed, or a new license
granted to it, so long as the judgment, or judg-
ments, because of which its license was fevoked,
shall remain unpaid. Acts 1912, pp. 126, 127.
SECTION 3.
Bonds and Deposit Required.
§ 2418. (§ 2034.) Transact business, when. — No
insurance company of whatever class, except such
companies as have already been chartered by the
'State, Masonic, Odd Fellows, religious and mutual
aid societies, and co-operative or assessment life-
insurance companies, shall be allowed to transact
any business of insurance in this State, unless
possessed of at least one hundred thousand dollars
of actual cash capital paid up, or assets, and in-
vested bonds or stocks, estimated at their actual
market value at the date of the statement required
by the preceding section, or in mortgages on real
estate worth double the amount for which the same
is mortgaged. Upon filing such statement, the in-
surance commissioner, when satisfied that it is
correct, and that the company has fully complied
with the laws regulating the business of insurance
in this State, shall issue license to said company to
transact business in this State. Said statement and
license must be renewed annually on the first day
of January, or within sixty days thereafter, and
must show the condition of said company on the
thirty-first day of December. In addition to this
statement, all companies, including co-operative or
assessment life-insurance companies doing busi-
ness in this State, shall, through their chief officer
or agent residing in this State, make to the Gover-
nor of this State semi-annual statements on the
first day of January and July of each year, or with-
in sixty days thereafter. The January statement
shall contain a full and exact report of their condi-
tion on the thirty-first day of December next pre-
ceding; said statement to be made in accordance
with the terms and conditions set forth and re-
quired under the preceding section, which shall be
sworn to by the officer or agent making the same.
The statement for July shall contain a report in
short form of income, assets, expenditures, and
liabilities in gross, as of thirtieth day of June pre-
ceding, and be sworn to by the officer or agent
making the same. At the time of making such re-
port to the Governor, each company shall publish
at its own expense a duplicate thereof in a news-
paper of general circulation published in this State.
Should any one of such insurance companies fail or
refuse to make said statement to the Governor, it
shall, by such failure or refusal, forfeit its right to
do business in this State, until the first of January
of the next year, and on such failure or refusal the
insurance commissioner shall recall and cancel the
license of such delinquent company. Acts 1893, p.
80.
See §§ 6459, 2866.
Cross References. — As to comity to foreign insurance
companies, see § 2449. As to non resident corporations,
see § 6457. As to reports by insurance companies, see §
6461. As to life insurance companies on assessment plan,
see § 2451.
An amendment to the charter of a corporation by the
legislature, which was not within the exception to the class
of corporations requiring it to have a minimum capital
paid in, reducing its capital below the amount required by
this section before transacting business is invalid. Georgia
Empire Mutual Ins. Co. v. Wright, 118 Ga. 796, 45 S.
E. 606.
§ 2418(1). Bonds received as deposits of domes-
tic life, etc., companies. — All deposits of bonds,
collateral or assets which are, or may hereafter be,
required under the laws of this State, of any life,
accident, or casualty insurance company incorpo-
rated under the laws of Georgia, as a condition to
its being authorized to do business in or on any
other account whatsoever, may be made in bonds
of the United States of America, or bonds of this
State, which according to the Acts and resolutions
of the General Assembly are valid, or bonds of any
county or municipality in this State which have
been validated under the laws of this State. The
said bonds shall be accepted by the appropriate
officer of this State for such deposit to the extent
of the face value thereof, but in no event in excess
of such face value; however, if the actual market
value of said bonds be less than their face value,
then they shall be so accepted at only their said
market value at the time they are so offered. Acts
1924, p. 121.
§ 2419. (§ 2035). Deposits by companies of
other states. — All fire, marine, and inland insur-
ance companies, chartered by other States or
foreign government, shall be required to deposit
with the treasurer of this State bonds of the
United States, or bonds of this State which ac-
cording to the acts and resolutions of the Gen-
eral Assembly are valid, or bonds of any county
dr municipality in this State which have been
validated under the laws of this State, and which
amount, according to their face value, to twenty-
five thousand dollars, which bonds shall be re-
ceipted for by the State treasurer, and especially
deposited by him in the vaults of the treasury,
and whenever such company ceases to do busi-
ness in this State, and has settled up all claims
against it as hereinafter provided, said bonds
shall be delivered up to the proper party on
presentation of the treasurer's receipt. While
said bonds are so deposited the owners of the
same shall, subject to the notices hereinafter
provided for or given, be entitled to collect the
coupons and use them. For the bonds so de-
posited the faith of the State is pledged that
they shall be returned to the parties entitled to
receive them, or disposed of as hereinafter pro-
[586]
§ 2420
BONDS AND DEPOSIT REQUIRED
§ 2425(1)
vided. Acts 1887, p. 116; 1899, p. 45; 1905, p.
75.
Cross References.— See §§ 6457, 2449, 232. As to proceed-
ing when amount reduced below amount required, see §
2424. As to annual report of business, see § 2458.
The primary purpose of the deposit, under this and the
following sections, is to secure the payment of fire losses,
which are the only losses "insured against," although it
also secures secondarily, other claims arising on policies,
such as the repayment, after the termination of the risk,
of unearned premiums paid; that even when a company
becomes insolvent, and the deposit is brought into a court
of equity for distribution, fire losses are entitled to priority
of payment from the fund over claims for unearned prem-
iums. Kelsey v. Cogswell, 112 Fed. 599.
§ 2420. (§ 2036.) When notice of loss is
given, bonds to be retained. — Whenever any loss
insured against occurs, the insured, in order to
secure his recovery, may give notice to the State
treasurer of the pendency of said loss, and of the
amount claimed, after which time the State
treasurer shall be bound to retain, subject to the
order of the court trying any suit that may be
brought for the recovery of such loss, a sufficient
amount to pay the judgment in said case in the
event of recovery; and if the amount for which
said company is liable is not paid in ten days,
then said plaintiff may file an application with
the judge of the superior court of the county
where the case was tried, for a receiver to take
charge of so many bonds as shall be necessary to
satisfy the aforesaid judgment.
See § 2559.
Not Extraordinary Remedy. — The appointment of a re-
ceiver under this section is not a suit in equity and does
not involve an extraordinary remedy. Albright v. American
Central Ins. Co., 147 Ga. 492, 94 S. E. 561.
Cited in Denny v. Commercial Credit Co., 157 Ga. 702,
703, 121 S. E. 832.
§ 2421. (§ 2037.) Bond by receiver.— When
said receiver is appointed by the judge, he shall
always require bond and security of him for the
faithful performance of his duty. The State
treasurer, on his application, shall deliver to him
bonds sufficient in their market value, if in his
custody, to satisfy said judgment. Said receiv-
er's receipt shall be a complete discharge to said
treasurer and the State of Georgia. Said re-
ceiver shall apply to the judge of said superior
court for an order of sale, and, in pursuance of
said order, sell said bonds. After deducting such
expenses and commissions as shall be allowed
by said judge, he shall pay over to the plaintiff,
or his attorney, a sufficient amount to satisfy the
judgment; and if there remains any residue in
the. hands of such receiver, he shall pay over the
same to the agent of the company, taking his re-
ceipt for the same, which shall be filed and re-
corded with the other papers in the case. Acts
1887, p. 116.
See §§ 2559, 5485.
§ 2422. (§ 2038.) Conflicting claims to bonds.
— If there are conflicting claims, the State treas-
urer shall deliver over to the receiver, in the or-
der of their application, the aforesaid bonds; and
if there is any contest between creditors, which
can not be settled in this mode, then the party
not receiving sufficient bonds through the re-
ceiver appointed in his behalf may become a
party to the other case, and make known his
claim to the other receiver by making affidavit of
the claim and filing the same with him, and the
receiver shall report such claim to the judge of
the superior court appointing him, who shall, by
order, provide for a bill of interpleader, as in
cases in equity. Acts 1887, p. 117.
See §§ 2559, 5471.
§ 2423. (§ 2039). Withdrawal by company
from the State. — When any company desires to
withdraw from the State, and will satisfy the
commissioner that all suits pending against such
party, and of which no notice has been given,
have been fully satisfied, or whenever no notice
of claim has been given, and when rights under
existing policies have been satisfied and released
as the provisions of this Article require, said
treasurer shall return to said company the bonds
so deposited, upon order from said commissioner.
Acts 1887, p. 117.
See §§ 2425, 2561.
§ 2424. (§ 2040.) When amount reduced be-
low amount required. — Whenever, by means of
the provisions of this Article, the amount of
bonds so deposited are reduced, said treasurer
shall at once notify the insurance commissioner
in writing, who shall give notice to the com-
pany depositing, and require more bonds to be
deposited, so as always to maintain the original
amount; and if the company so notified by the
insurance commissioner fails to comply within
thirty days, the license to do business in this
State shall be revoked, and said insurance com-
missioner shall at the same time give notice, by
publication in a newspaper published at the capi-
tal, of the fact of such failure and revocation of
license; the cost of which publication shall be
paid by the company failing to comply with the
provisions of this Article. Acts 1887, p. 117.
See §§ 2562, 2560.
§ 2425. (§ 2041.) Policies must be satisfied
before withdrawal. — When any company, having
made the deposit required by this Article, has
existing policies on property of citizens of this
State on which no losses have accrued, and the
company wishes to withdraw its deposits, before
being allowed so to do said company shall take
up and satisfy said policies, and give notice of its
intention to withdraw from the State, and of the
fact that it has satisfied all losses and the claims
of policyholders above designated, which notice
shall be published once a week for two months
in a newspaper to be designated by the insurance
commissioner of the State, and at the expense of
said company. Any claims of the citizens of this
State for losses, or on existing policies where no
losses have occurred, must be fully settled before
said deposits shall be withdrawn. Acts 1887, p.
117.
See §§ 2423, 2561.
§ 2425(1). How fire insurance companies may
withdraw from State. — Any foreign fire insur-
ance company or association doing business in
this State and desiring to retire from this State
before the maturity or expiration of its policies
or contracts, may, upon filing with the Insurance
Commissioner a written notice of such intention
to withdraw, together with a sworn statement
of its outstanding liabilities or obligations under
all such policies or contracts, so retire or with-
draw, including any and all securities on de-
posit with the State Official designated by law
[587]
§ 2425(2)
BONDS AND DEPOSIT REQUIRED
§ 2427(1)
for the protection of the beneficiaries of such
policies or contracts, provided such company or
companies, as a condition precedent to such
withdrawal, reinsure all such policies or con-
tracts, in some other company or companies au-
thorized to do business in this State, and shall
file with said Insurance Commissioner a list
showing the name or names of such company or
companies in which such outstanding policies,
contracts or obligations have been so reinsured;
and provided further, that the securities on de-
posit as aforesaid, shall not be so withdrawn
from the custody, control and possession of said
State Official until after such proof as may be
required by said Commissioner has first been
furnished him that there are, at the time of such
withdrawal, no unsettled claim, claims or losses
outstanding against said company or companies
so desiring to withdraw; and provided further,
that said reinsurance shall be approved by the
Insurance Commissioner. Acts 1913, p. 86.
§ 2425(2). Deposits and assets required of
mutual fire insurance companies. — All insurance
companies chartered under the laws of this State
to do a fire insurance business upon the mutual,
co-operative or assessment plan, shall before re-
ceiving a license from the Insurance Commis-
sioner, deposit with the State Treasurer of Geor-
gia registered bonds of the United States or of
the State of Georgia or county or municipal
bonds of this State, registered and validated in
the sum of $10,000.00. Said deposit to be made
under the same conditions that deposits of non-
resident fire insurance companies are made with
the State Treasurer; provided, that this shall not
apply to such companies as operate in not more
than four counties in a division in this State, or
to farmers' co-operative companies doing fire
insurance business in this State on the assess-
ment plan where their policies stipulate that all
the property, real and personal, of the policy-
holders is pledged for the payment of the policy.
Such companies shall always have in good as-
sets an amount equal to the unearned premium
liability of the company required of all classes of
fire insurance companies by the laws of this
State. All policies issued by such companies
shall embrace what is termed an emergency
clause, whereby the company reserves the right
to call for extra assessments from its policy
holders whenever the contingency arises. Sam-
ples of all policy contracts to be used by such
companies shall, before issuance, be submitted to
the Insurance Commissioner for his approval;
provided, that nothing in this Act shall require
any mutual fire insurance company chartered un-
der the laws of this State to embrace in their
policies said emergency clause when such com-
pany shall have deposited with the Treasurer of
the State registered securities in the amount of
$100,000.00, consisting of bonds of the United
States, bonds of the State of Georgia, bonds of
municipalities or counties of the State of Geor-
gia, which have been duly validated, or such
other securities as the Insurance Commissioner
shall deem adequate, nor shall the policy hold-
ers of any such company that shall make said
deposit be liable for any assessments, except for
unpaid premiums, to meet any losses or liabili-
ties that may be incurred by any such company;
which deposit shall be in lieu of any other de-
posit required by this Act, and the amount of
said deposit shall always be maintained as a sur-
plus in excess of the re-insurance reserve re-
quired under the present law. Acts 1912, pp.
119, 142; 1922, pp. 122, 124.
§ 2425(3). Receipt of deposits. — The Treas-
urer of this State is hereby authorized and di-
rected to receive deposit of bonds or other se-
curities as provided in the preceding section
when the deposit of the same is approved by the
Insurance Commissioner, and hold the same
subject to the provisions of the laws of this
State relating to deposits by fire insurance com-
panies. Acts 1922, pp. 124, 125.
§ 2426. (§ 2042.) Deposits of life and accident
companies of other states, etc. — All life and ac-
cident-insurance companies chartered by other
States of the United States, or foreign govern-
ments, shall show, by a certificate from the offi-
cer having supervision of the insurance depart-
ment in the State in which they are chartered or
elect to make their deposit, that they have de-
posited not less than one hundred thousand dol-
lars, in such securities as may be deemed by
such officer as equivalent to cash, subject to his
order, as a guarantee fund for the security of
policyholders of said companies. Acts 1887, p.
118.
See § 6457.
§ 2427. (§ 2043.) Of home companies.— All
such companies chartered by the State of Geor-
gia shall, before doing business in this State, de-
posit with the treasurer of this State, one hun-
dred thousand dollars, in such securities as may
be deemed by the insurance commissioner of this
State equivalent to cash, to be subject to his or-
der, as a guarantee fund for the security of the
policyholders of the company making such de-
posit. All interest and dividends arising from
such securities to be paid when due to the com-
pany so depositing them. Any such securities as
majr be needed by the company may be taken
from the treasurer, at any time, by replacing
them with other securities equally acceptable to
the insurance commissioner. The treasurer's
certificate for the same shall be furnished to the
company. Acts 1887, p. 118; 1905, p. 76.
§ 2427(1). Deposits required of non-resident
life insurance companies. — No life insurance
company chartered, or which may hereafter be
chartered, by the State of Georgia, whether or-
ganized on the mutual or the stock plan, and
which is not now authorized to transact business
in this State, shall be so authorized or licensed,
until such company has deposited with the
Treasurer of this State securities, deemed by the
Insurance Commissioner of this State to be
equivalent of cash, in an amount of not less than
one hundred thousand dollars ($100,000.00), as a
guaranty fund for its policyholders, and no such
company organized, or which may hereafter be
organized, under the laws of any State of this
Union, or foreign State, and not now authorized
to do business in this State shall be authorized or
licensed to transact the business of insurance in
this State until it has produced evidence satis-
factory to the Insurance Commissioner of Geor-
[588]
§ 2427(2)
BONDS AND DtajOSlT RiiUUlKJiD
§ 2431
gia, that it has on deposit in the State in which
it is chartered or organized, with the proper offi-
cer thereof, one hundred thousand ($100,000.00)
dollars in such securities as may be deemed by
such officer, equivalent to cash, subject to his or-
der, as a guaranty fund for the security of policy-
holders, provided, however, that such non-resi-
dent insurance company may make deposit with
the Treasurer of Georgia, instead of in the State
of its organization, should it elect to do so. Acts
1920, p. 212.
§ 2427(2). Annual increases of deposits. — All
life insurance companies now authorized to
transact the business of life insurance in this
State whose deposit is less than one hundred
thousand dollars ($100,000.00), shall annually, on
or before the 31st day of December of each year,
increase its deposit in an amount, not less than
10 per cent, of the amount of deposit which it is
required to have under existing laws, until de-
posit aggregates not less than one hundred thou-
sand ($100,000.00) Dollars. Acts 1920, pp. 212,
213.
§ 2427(3). Industrial life insurance companies.
— The provisions of this Act shall apply to in-
dustrial life insurance companies in the same
manner as to other life insurance companies, pro-
vided such Act shall take effect January 1st,
1921. Acts 1920, pp. 212, 213.
§ 2428. Measure of the required deposit. — The
insurance commissioner shall, as soon as practi-
cable after the filing of the annual statement of
any insurance company organized and doing busi-
ness on the legal reserve plan under the laws of
this State, proceed to ascertain the net reserve
value of each policy in force on the thirty-first
day of December immediately preceding, upon
the basis of calculation fixed by existing laws of
this State; and should any company issue poli-
cies based upon a higher standard, such policy
shall be valued according to such higher stand-
ard. For the purpose of making such valuation
the insurance commissioner may employ a compe-
tent actuary to do the same, who shall be paid by
the company for which the services are ren-
dered; but nothing in this section shall prevent
any company from making said valuation herein
contemplated, which may be received by the in-
surance commissioner upon such proof as he may
determine. The expense of procuring such
proof shall be paid by the company. Upon as-
certaining, in the manner above provided, the net
reserve value of all policies in force issued by
any company desiring to operate under the pro-
visions of this section, the insurance commis-
sioner shall notify such company of the amount
thereof, and within sixty days after the date of
such notification the officers of such company
shall have the right to deposit with the treasurer
of this State, for the security and benefit of all
its policyholders, securities to an amount which,
together with the sum already deposited with
said treasurer, and such sums as may be depos-
ited by said company with other States and gov-
ernments, by requirements of the laws of such
other States or governments in which said com-
pany is doing business, shall not be less than
the amount of such ascertained valuation of all
policies in force. In case the deposits made
with other States and governments are by the
laws of such States and governments held as se-
curity first for the policyholders of such States
and governments, then said policyholders in
such other States shall not participate in the se-
curities held in this State until due allowance or
credit has been given for the securities held by
their own States or government, so that all pol-
icyholders of the company shall stand on equal
terms. The securities shall be such as are de-
scribed in section 2408, or certificates of deposit
in any solvent bank or trust company, or satis-
factory evidences of ownership of unencumbered
improved real estate as may be lawfully acquired
by such company, under the provisions of law,
at such value as may be determined upon by two
disinterested appraisers residing in the county in
which the real estate is situated, such appraisers
to be appointed by the insurance commissioner
of this State. Such real estate shall not be sold
or encumbered unless securities of equal value as
herein required be deposited with the treasurer
of this State in lieu thereof. Acts 1906, p. 107.
See §§ 2408, 2438.
§ 2429. Certificate by insurance companies. —
Upon the deposit being made by any company
as provided in the foregoing section, which
shall be renewed annually, the insurance com-
missioner shall issue a certificate setting forth
the corporate name of the company, its princi-
pal office, that it has fully complied with the
provisions of this law, stating the amount de-
posited and the net reserve value of outstanding
policies, and the table upon which the same is
computed, and that it is authorized to transact
the business of life insurance in this State: Pro-
vided, that any such certificate shall expire on
the thirtieth day of May in the year following
its issue. If requested by such company, the
insurance commissioner shall furnish such com-
pany with a certificate over his signature, to be
attached to or printed on policy issued by such
company, in substance as follows: State of
Georgia, Insurance Department, State Capitol,
Atlanta, Ga., , 190 — . The net reserve value
of policies issued by life insurance company
of , Georgia, is secured by a deposit of accep-
table securities in accordance with the compulsory
reserve deposit laws of this State, enacted in the
year 1906. , insurance commissioner.
§ 2430. Effect of failure to make deposit. —
Upon the failure of any company having once
exercised the privilege of coming under the pro-
visions of the preceding section to make the de-
posit in the time provided therein, the insur-
ance commissioner shall notify such company
to issue no new policies in this State until there
shall have been compliance with said require-
ments. The insurance commissioner shall re-
voke the license of any company issuing policies
after such notice and before compliance with
said requirements.
See § 15.
§ 2431. Changes of securities deposited. — All
companies, coming within the provisions of the
two preceding sections, shall have the right at
any time to change their securities on deposit
by substituting for those withdrawn a like
amount in other securities of the character pro-
[ 589 ]
§ 2432
Kfc,G LIGATION Ub lJNSUKAJNLfc, <J<JMlJAWlh,S
§ 2438
vided for, and whenever the net reserve value
of policies outstanding and in force against any
company is less than the amount of securities
then on deposit with the treasurer of this State,
said company shall have the right to withdraw
such excess; but at least one hundred thousand
dollars shall remain on deposit. Companies
having on deposit stock or bonds as security
may collect the dividends and interest accruing
on such deposits; but upon default by such com-
pany to deposit additional security as called for
by the insurance commissioner, the State treas-
urer shall collect the interest on such security
as it becomes due, and add the same to the se-
curities in his hands belonging to such company.
§ 2432. Approval of deposits. — Securities of-
fered for deposit under the preceding section
shall be passed upon by the insurance commis-
sioner and approved by him before being de-
posited with the State treasurer, and before the
withdrawal of any securities from the treasurer
by the company the insurance commissioner
shall first approve such withdrawal and the sub-
stitution of securities therefor.
SECTION 4.
Regulation of Insurance Companies.
§ 2433. (§ 2044.) Investigation by commis-
sioner.— It shall be the duty of the insurance
commissioner, whenever he shall deem it expe-
dient so to do, and he is hereby empowered, ei-
ther in person or by an expert examiner by him
appointed, to investigate the affairs of any in-
surance company doing business in this State; to
require free access to all books and papers of
any company, or the agents thereof; to summon
and examine under oath any person in this State,
relative to the affairs and condition of said com-
pany; for probable cause, to visit at its principal
office, wherever it may be, any insurance com-
pany not of the State, in which the substantial
requirements of this Article, as to valuations of
policies of life and accident-insurance companies,
and calculations for the reinsurance reserve of
fire, marine, and inland insurance companies, are
not in force, for the purpose of investigating its
affairs and condition; and to revoke its authority
to do business in this State, if said company re-
fuse to permit the examination. All expense in-
curred in the investigation of said companies
shall be paid by the companies so examined.
Acts 1887, p. 118.
§ 2434. (§ 2045.) Calculation of reinsurance
reserve. — For every fire-insurance company do-
ing business in this State, the insurance commis-
sioner shall calculate, or cause to be calculated,
the reinsurance reserve for unexpired fire risks,
by taking fifty per cent, of the premium received
on all policies that are written for a period of
one year or less, and according to the New York
percentage table for calculating reinsurance on
all premiums received that have more than one
year to run; and in marine and inland insurance,
he shall charge all the premiums received on un-
expired risks as a reinsurance reserve. Having
charged against the company the reinsurance re-
serve as above determined for fire, marine, and
inland insurance, and adding thereto all other
debts and claims against the company, he shall,
in case he finds the capital stock of the company
impaired more than twenty per cent., suspend
the license issued to said company and require
the company to cease to do new business within
this State, and give notice to said company to
make good its whole capital stock within ninety
days, and if this is not done he shall revoke the
license of such company and debar the same
from doing business in this State. Acts 1887, p.
199; Acts 1899,- p. 45.
See § IS.
§ 2435. (§ 2046.) Call on stockholders,— Any
such insurance company, receiving the aforesaid
notice of the insurance commissioner to make
good its whole capital stock within ninety days,
shall forthwith call upon its stockholders for
such amounts as will make its capital equal to
the amount fixed by the charter of said company.
Acts 1887, p. 119.
§ 2436. (§ 2047.) Calculations of reinsurance
reserve by commissioners of other States. — In
the case of companies chartered by other States
or foreign governments, the insurance commis-
sioner of this State shall accept calculations of
the reinsured reserve made by the insurance
commissioners of the States in which they are
chartered, when such calculations are made and
furnished to the insurance commissioner of this
State by the first of March in each and every
year. Acts 1887, p. 119.
§ 2437. (§ 2048.) Proceedings when home
companies are insolvent. — Whenever the insur-
ance commissioner shall have reason to believe,
from an examination into the affairs of a com-
pany, that any insurance company of this State
is insolvent or fraudulently conducted or that its
assets are not sufficient for carrying on business,
as contemplated by the laws of this State, he
shall revoke the license of such company and re-
quire said company to cease to do business in
this State, giving public notice of such revoca-
tion of authority. Any insurance company which
has been suspended or which has had its license
revoked may be reinstated upon showing that its
condition is such as to authorize it to do busi-
ness in this State, and the insurance commis-
sioner may reinstate such company whenever it
makes such showing. Acts 1887, p. 119; 1899,
p. 45.
As to proceedings in case of insolvency, see § 2441 et
seq.
§ 2438. (§ 2049.) Calculation of net value of
life-policies. — The insurance commissioner shall,
as soon as practicable in each alternate year, cal-
culate, or cause to be calculated, the net value,
on the thirty-first day of December of the pre-
vious year, of all the policies in force on that
day in each life-insurance company doing busi-
ness in this State, chartered by this State, and
of every other life-insurance company doing
business in this State, that shall fail to furnish
him, as hereinafter provided, a certificate of the
insurance commissioner of the State by whose
authority the company was organized, or by the
State in which it may elect to have its policies
valued and its deposit made, giving the net value
of all policies in force in the company on the
thirty-first day of December of the preceding
[590
§ 2439
PROCEEDINGS IN CASE OF INSOLVENCY
§ 2441
year, which calculation of the net value of each
policy shall be based upon the American Expe-
rience or Actuaries' table of mortality, at four
per cent, interest per annum: Provided, that
when any life company shall have a cash capital
of not less than one hundred thousand dollars,
fully paid up and safely invested, the reserve to
provide for the liabilities on all policies of such
company, not participating in the profits of the
company, shall be computed by the American
Experience or Actuaries' table of mortality, with
interest at not less than three nor more than six
per cent, per annum, in the discretion of the
commissioner, and with reference to the rates
of premiums charged by such company. The
net value of a policy, at any time, shall be taken
to be the single net premium which will at that
time effect the insurance, less the value at that
time of the future net premiums called for by
the table of mortality and rate of interest desig-
nated. Acts 1887, p. 120.
See §§ 2428, 2452, 2453.
§ 2439. (§ 2050.) Where net value of policies
is not on hand. — In case it is found that any life
company doing business in this State has not on
hand the net value of all its policies in force
after other debts, of the company and claims
against it, exclusive of capital stock, have been
provided for, jt shall be the duty of the insur-
ance commissioner to publish the fact that the
then existing condition of the affairs of the com-
pany is below the standard of legal safety estab-
lished by this State, and he shall require the
company at once to cease doing new business;
and it is hereby made the duty of the insurance
commissioner, after having determined, as above,
the amount of the net value of all policies in
force, to see that the company has that amount
in safe legal securities after all debts and claims
against it, exclusive of capital stock, have been
provided for. Acts 1887, p. 120.
§ 2440. (§ 2051.) Valuation by commissioners
of other states. — He shall accept the valuations
made by the insurance commissioner of the
State under whose authority a life-insurance
company is chartered, when such valuations have
been made on the basis mentioned above: Pro-
vided, the company shall furnish to the insurance
commissioner of this State, on or before the first
day of March in each and every alternate year,
a certificate from the insurance commissioner of
such State, setting forth the value, calculated on
the dates designated above, of all the policies in
force in the company on the previous thirty-first
of December, and stating that after all the other
debts of the company and claims against it at
that time were provided for, the company had in
safe securities an amount equal to the net value
of all its policies in force, and that said com-
pany is entitled to do business in its own State;
and every company doing business in the State
during the year for which the statement is made,
that fails to furnish promptly the certificate
aforesaid, shall be required to make full detailed
lists of policies and securities held or owned by
the company to the insurance commissioner of
this State, and shall be liable for all charges and
expenses consequent upon not having furnished
said certificate. Acts 1887, p. 120.
§ 2440(1). Commissions on sale of stock, etc.
— No officer, agent or other person selling, or
negotiating stock in any insurance company in
this State shall receive either directly or indi-
rectly more than ten per cent, of the sales of any
of said stock. No president, vice-president, sec-
retary, treasurer, or director or any other execu-
tive officer of any insurance company shall par-
ticipate in the commissions received by any per-
son selling, negotiating the sale of any stock of
any insurance companies either directly or indi-
rectly, nor shall any salaried officer of any insur-
ance company doing business in this State par-
ticipate in the commissions arising from the sale
of life insurance policies or agency contracts of
such companies. Acts 1912, pp. 119, 129.
To What Sales Applicable. — This section has no applica-
tion where one who happens to be an officer or agent of an
insurance company sells stock belonging to himself or to
some person, firm, or corporation to whom the company had
previously sold stock; the section refers to sales in which
the officers or agents are dealing either directly or indirectly
for the insurance company itself. Prontaut v. Lorick &
Co., 17 Ga. App. 495, 87 S. E. 716.
§ 2440(2). Rebates and discriminatory con-
tracts. Revocation of license. — No insurance
company or insurance agent doing business in
this State shall enter into any contract to rebate
any insurance premium or any part thereof of
any insured or other person. No person shall
sell or offer for sale in Georgia and no insurance
company shall do business in this State which
sells or offers for sale to the public any "special
contract," "board contract" or any other form of
policy or contract whereby any discrimination in
any form or character is allowed to any particu-
lar person or persons. Any insurance company
violating the provisions of this Section shall be
subject to have its license revoked as hereinbe-
fore provided. Acts 1912, pp. 119, 129.
As to penalty for violation of this section, see P. C, §
627 (3).
Effect of Agreement to Rebate on Note. — Where an agent
by parol contract agreed to insure a person's life, and
agreed to rebate a part of the first premium, and took a
note for the amount of the premium less the amount of
the rebate, the agreement to rebate was an integral part
of the contract, and the agreement to rebate being void, the
note given in furtherance of the contract was itself illegal
and void. Jones v. Crawford, 21 Ga. App. 29, 93 S. E\ 515.
Applied. — The contract set out in Leonard v. American
Life & Annuity Company, 139 Ga. 274 was a special dis-
criminatory contract prohibited by this section.
SECTION 5.
Proceedings in Case of Insolvency or
Receivership.
§ 2441. (§ 2052.) Proceedings where home
companies fail to maintain standard. — It shall be
the duty of the commissioner, after he has noti-
fied a life-insurance company, chartered by the
State, to cease doing new business until the net
value of its policies in force is equal to that
called for by the standard of safety established
by the State, at once to cause a rigid examina-
tion into the affairs of such company; in case it
shall appear that there is no fraud or gross in-
competency or recklessness in the management,
he may, upon publishing the facts in the case,
permit such company to continue its business
for one year: Provided, there is, in his opinion,
reason to believe that the company may be able
[591]
§ 2442
WHEN COMMISSIONER TO CONDUCT BUSINESS
§ 2442(3)
to re-establish the legal net value of all its poli-
cies in force. At the end of the year named
above, he may renew the permission, in case on
examination he is satisfied that the company is
likely to retrieve its affairs. Acts 1887, p. 120.
See § 2437.
§ 2442. (§ 2053.) If comptroller knows of in-
solvency. — Whenever the insurance commis-
sioner shall have reason to believe that any in-
surance company of this State is insolvent or
fraudulently conducted, or that its assets are not
sufficient for conducting the business of the
company, or during • any non-compliance with
the provisions of this Article, his duty shall be
as prescribed in section 2434. Acts 1887, p. 121.
See § 2437.
§ 2442(1). Receivership. — Before any insur-
ance company chartered under the laws of this
State or doing business in this State shall here-
after be put in the hands of receiver by any
court of equity in this State, upon any claim or
demand not in judgment, it must first appear
that the cause of complaint and the matters and
grounds upon which the receivership is sought
have been submitted, by the complainant to the
Insurance Commissioner of this State, and that
such complaint of the complainant and the mat-
ters charged against such insurance company
have been passed upon by the Insurance Com-
missioner sitting in connection with the Gov-
ernor and the Attorney General in the manner
hereinafter provided, to-wit: The Insurance
Commissioner, the Governor and the Attorney
General sitting as a board as provided in Section
2417(1), shall, upon such matters and complaint
as referred to previously in this section, being
filed with the Insurance Commissioner, proceed
to hear the same after giving both the complain-
ant and the insurance company in question, op-
portunity to be heard, ample and ' legal time,
however, being given for the production of such
evidence as either party may deem necessary.
During the pendency of such proceedings, the
Insurance Commissioner shall order the com-
pany and its officers to maintain the assets in
statu quo. Upon hearing same, said commission,
or a majority of them, shall render a decision
and judgment recommending or declining to rec-
ommend that the commissioner make application,
in accordance with Section 2442(2), for an order
directing the company to show cause why the
commissioner should not take possession of its
property and conduct its business. No receiver
for an insurance company doing business in this
State shall be appointed on the petition of any
person other than the Insurance Commissioner,
unless it be made to appear to the court where
application for such appointment is made, that
the Insurance Commissioner has failed or re-
fused to comply and proceed with the findings
of said board. Acts 1914, pp. 135, 136, 137.
Cited in Winter v. Southern Securities Co., 155 Ga. 590,
601, 118 S. E. 214.
SECTION 5A.
When Commissioner to Conduct Business
of Insurance Company.
§ 2442(2). Grdunds and proceedings. — When-
ever any domestic life insurance company (a) is
insolvent; or (b) has unlawfully refused to sub-
mit its books, papers, accounts, or affairs to the
reasonable inspection of the Commissioner or his
deputy or examiner; (c) or, in the case of a capi-
tal stock company, has neglected or refused to
observe an order of the commissioner to make
good within the time prescribed by law, any de-
ficiency of its capital, or, in the case of a mutual
company, if its assets have not become equal to its
liabilities within ninety (90) days from the date
of notification thereof by the Commissioner; or,
(d) has, by contract of reinsurance or otherwise,
transferred or attempted to transfer substantially
its entire property or business, or entered into
any transaction the effect of which is to merge
substantially its entire property or business in the
property or business of any other company, as-
sociation, society or order without having first
obtained the written approval of the Commis-
sioner; or (e) is found, after an examination, to
be in such condition that, its further transaction of
business will be hazardous to its policyholders, or
to its creditors, or to the pulblic; or (f) has wil-
fully violated its charter or any law of the State;
or (g) whenever any officer thereof has unlaw-
fully refused to be examined under oath touch-
ing its affairs, the Commissioner may, the At-
torney-General representing him, apply to the
Circuit Court or any judge thereof in the judicial
district in which the principal office of which such
company is located, for an order directing such
company to show cause why the Commissioner
should not take possession of its property and
conduct its business, and for such other relief as
the nature of the case, the interest of its policy-
holders, creditors, stockholders or the public may
require. Acts 1912, pp. 119, 133.
Section Not Exclusive of Other Remedies. — In the ab-
sence of express provision in the section itself or neces-
sary implication, divesting creditors and policyholders of
rights and remedies heretofore existing under the law. the
section should not be construed to be exclusive so as to
deprive policyholders or creditors of their right to make
application to the court for such relief as a court of law or
equity might have afforded them under the laws existing
at the time of the passage of this section. Wright v. State
Mutual Ivife Ins. Co., 142 Ga. 764, 83 S. E. 666. See, how-
ever, dissenting opinion in the same case, where it is stated
that the section should be construed as exclusive.
Temporary Receiver. — The court below having, upon ap-
plication for injunction and receiver, appointed a temporary
receiver to take charge of the property and assets of the
insurance company, it was not error for it to refuse to take
the property and assets thus turned over to the receiver so-
appointed, and turn the same over to the insurance com-
missioner for the purpose of having him administer it un-
der the provisions of this act. See dissenting opinion.
Wright v. State Mutual Life Ins. Co., 142 Ga. 764, 83 S.
E. 666.
Procedure After Commissioner Takes Charge. — It is
competent for the superior court, upon application of the in-
surance commissioner, where the latter has taken charge
of the assets and is conducting the business of an insurance
company under the provisions of this act, to direct, upon
appropriate petition, the execution of a contract of rein-
surance in another company and a contract for the pro-
tection of the assets of the company, fester v. Wright,
147 Ga. 242, 93 S. E. 408.
§ 2442(3). When injunction granted. — On
such application, or at any time thereafter, such
Court may in its discretion, issue an injunction
restraining such company from the transaction of
its affairs or disposition of its property until the
further order of the court. On the return of such
order to show cause, the court shall hear, try and
determine the issues forthwith and shall either
[592]
§ 2442(4)
AGENTS OF INSURANCE COMPANY
§ 2445
deny the application or direct the Commissioner
to take possession of the property, conduct the
business of such company and retain such posses-
sion and conduct such business until on the ap-
plication of either the Commissioner, the Attor-
ney-General representing him, or . such company,
it shall, after a like hearing, appear to the court
that the ground for such order directing the
Commissioner to take possession has been re-
moved, and that the company can properly re-
sume possession of its property and the conduct
of its business. Acts 1912, pp. 199, 134.
§ 2442(4). Liquidation. — If on like application
an order to show cause and after like hearing the
Court shall order the liquidation of the business
of such company, such liquidation shall be made
by and under the direction of the Commissioner,
who may deal with the property and ibusiness of
such company in his own name as Commissioner
or in the name of the company as the court may
direct, and the Commissioner shall be vested by
operation of law with title to all the property,
contracts and rights of action of such company,
as of the date of the order so directing him to liqui-
date. The filing or recording of such order in
the office of the Clerk of the Superior Court of
the county wherein said liquidation is made, shall
impart the same notice that a deed., bill of sale
or other evidence of title duly filed or recorded
by such company would have imparted. Acts
1923, pp. 119, 135.
§ 2442(5). Special deputy commissioners. — For
the purpose of this Section the Commissioner
shall have power to appoint under his hand and
official seal one or more special Deputy Commis-
sioners of Insurance as his agent or agents and
to employ such counsel, clerks and assistants, as
may by him be deemed necessary and give each
of such parties such powers to assist him as he may
consider wise. The compensation of such
Deputy, Special Commissioners, counsel, clerks
and assistants and all expense of taking posses-
sion of and conducting the business of liquidat-
ing any such company shall be fixed by the Com-
missioner subject to the approval of the court, and
shall on certificate of the Commissioner be paid
out of the funds or assets of such company. Acts
1912, pp. 119, 135.
§ 2442(6). Rules and regulations. — For the
purpose of this Section the Commissioner shall
have power subject to the approval of the court
to make and prescribe such rules and regulations
as to him may seem proper. Acts 1912, pp. 119,
136.
§ 2442(7). Annual report. — The Commissioner
shall transmit to the Legislature in his annual re-
port the names of the companies so taken pos-
session of, whether the same have resumed busi-
ness or have been liquidated, or such other facts
as shall acquaint the policyholders, creditors,
stockholders and the public with his proceedings
undef this Section, and to that end the Special
Deputy Commissioner in charge of any such
company shall file annually with the Commis-
sioner a report of the affairs of such company,
similar to that required by law to be filed by such
company. Acts 1912. pp. 119, 136.
SECTION 6.
Agents of Insurance Company.
§ 2443. (§ 2054.) Definition of insurance agent. —
Any person who solicits in behalf of any insur-
ance company, or agent of the same, incorporated
toy the laws of this or any other State or foreign
government, or who takes or transmits, other
than for himself, any application for insurance or
any policy of insurance to or from such company,
or agent of the same, or who advertises or other-
wise gives notice that he will receive or trans-
mit the same, or who shall receive or deliver a
policy of insurance of any such company, or who
shall examine or inspect any risk at any time, or
receive or collect or transmit any premiums of
insurance, or make or forward any diagram of
any building or Ibuildings, or do or perform any
other act or thing in the making or consummat-
ing of any contract of insurance for or with any
such insurance company, other than for himself,
or who shall examine into or adjust or aid in ad-
justing any loss for or in behalf of any such com-
pany, whether any of such acts shall be done at
the instance or request or by the employment of
such insurance company, or of, or by, any broker
or other person, shall be held to be the agent of
the company for which the act is done or the risk
is taken. Acts 1887, p. 121.
Cross References.— See §§ 2466, 2491, 2456, 935, 936, 937.
For full treatment of agents of insurance corporations
generally, see 7 Cum. Dig. 546. See also generally, 1 Cum.
Dig. 261; 1 Enc. Dig. 208.
Constitutionality. — The part of this section denning who
is an agent is not unconstitutional because it impairs the
obligation of contracts. Globe Fire Ins. Co. v. Walker, 150
Ga. 163, 169, 103 S. E. 407. Whether the last clause of this
section, beginning "whether any of such acts," is con-
stitutional was questioned but not decided in this case.
Ed. Note.
The word "supervisor" when used to indicate an agent
of an insurance company, denotes and includes general
agency. New York L,ife Ins. Co. v. Rhodes, • 4 Ga. App.
125, 18 S. E. 14.
Quoted in Rilev & Co. v. Wright, 151 Ga. 609, 612, 107
S. E. 857.
§ 2444. (§ 2055.) Penalty on agents of unau-
thorized companies.— Any person who shall do
or perform any of the acts or things mentioned,
for any insurance company or agent of said com-
pany, without such company having first received
a certificate of authority from the insurance com-
missioner of this State as required by law, shall
be guilty of a misdemeanor, and shall also pay a
sum equal to the State, county, and municipal
taxes and licenses required to Ibe paid by insur-
ance companies legally doing business in this
State; and it is hereby made the duty of the in-
surance commissioner to see that all violators of
the provisions of this section are prosecuted.
Acts 1887, p. 121.
See §§ 2448, 2457, P. C, § 626.
Applied in Bussey v. Gantham, 23 Ga. App. 708, 99 S.
E. 236.
§ 2445. (2056.) Civil liability. — Any person who
shall do any of the acts mentioned in the preced-
ing sections shall also be personally liable to the
holder of any policy of insurance, in respect of
which such act was done, for any loss covered by
the same: Provided, that the penalties provided
for shall not apply to adjusters or inspectors of
authorized insurance companies from whom the
citizens of this State have purchased insurance
[593 ]
§ 2445(1)
AGENTS OF INSURANCE COMPANY
§ 2447
Assembly in providing for the appointment of some person
resident in this state who should be authorized to ac-
knowledge or receive service of process was to require
for themselves, as provided for in this section,
whenever the person or persons purchasing said
insurance shall immediately notify the insurance^ every foreign insurance company, as a condition precedent
to acquiring a right to carry on business in Georgia, to
submit itself to the jurisdiction of the courts of this state
and the Federal courts located therein. The proviso, to
the effect that existing laws "relative to bringing suits
and serving process on foreign corporations doing business
in this state" should remain of force, is to be understood
as an expression of the legislative will that such companies
should still be held subject to suit under the provisions of
§ 2563, in all instances where suit could be instituted in ac-
cordance therewith. Equity L,ife Ass'n. v. Gammon, 118
Ga. 236, 239, 44 S. E. 978.
There is No Conflict between this Section and § 2563. —
This section merely requires insurance companies doing
business in this State to file with the insurance commis-
sioner a written power of attorney appointing some per-
son who shall be authorized to acknowledge service for
such company, or upon whom process may be served, and
is entirelv compatible with the provisions of § 2563. Gaines
v. Bankers Alliance, 113 Ga. 1138, 1140, 39 S. E. 502.
Where No Agency Maintained. — A foreign insurance com-
pany which fails to maintain an agency does not, by ap-
pointing, or having the commissioner of insurance to ap-
point, an agent upon whom service may be perfected un-
der this section, acquire a fixed residence in the county
of such agent's residence. Equity L,ife Asso. v. Gammon,
119 Ga. 271, 46 S. E- 100.
commissioner, giving the name and, locality of
said company in which they have policies, and
at the same time pay to said insurance commis-
sioner the same licenses, fees, and taxes for each
company as are now or may hereafter be required
of fire-insurance companies authorized to do
business by the laws of this State; and when the
license fees for any company have ibeen paid in
any one year by any person or persons who have
purchased insurance from said company, then, in
that case, any person or persons purchasing in-
surance from said company thereafter shall not
be liable for the license fees of said company dur-
ing the said year, but only for such taxes on pre-
miums as may be required from time to time of
insurance companies authorized to do business in
this State: Provided further, that it shall not be
lawful for said inspectors to solicit business for
their companies. Acts 1890-1, p. 205.
See § 2466.
§ 2445(1). False representation unlawful ; penalty.
— It shall be unlawful for any person, firm or cor-
poration to make or cause to be made any fraudu-
lent or false representations as to the form, nature
and character of the policy offered for sale, and
any person selling a different form or character
of policy from that which he represents himself
as selling, or makes any other material misrep-
resentation as to the benefits accruing under any
policy which he sells or offers for sale, shall foe
deemed guilty of a misdemeanor and punished as
provided in Section 1065 of the Code of 1910,
and any note or other evidence of debt given in
consideration of said policy shall be null and void
and any premiums paid on such policy may be
recovered by such policy holder in any Court hav-
ing jurisdiction thereof. Acts 1912, pp. 119, 124.
§ 2446. (§ 2057.) Service on non-resident com-
panies.— Any insurance company not organized
under the laws of this State, desiring to transact
business in this State, shall file with the insurance
commissioner a written instrument or power of
attorney, duly signed and sealed, appointing and
authorizing some person, who shall be a resident
of this State, to acknowledge or receive service
of process, and upon whom process may be
served, for and in behalf of such company, in all
proceedings that may be instituted against such
company in any court of this State, or any court
of the United States in this State, and consenting
that service of process upon any agent or attor-
ney appointed under the provisions of this section
shall be taken and held to be as valid as if served
upon the company; and such instrument shall fur-
ther provide that the authority of such attorney
shall continue until revocation of his appointment is
made by such company 'by filing a similar instru-
ment with said insurance commissioner, whereby
another person shall be appointed as such at-
torney: Provided, however, that the provisions of
this section shall not be construed to alter or
amend the laws now of force in this State relative
to bringing suits and serving process on foreign
corporations doing business in this State. Acts
1887, p. 123.
See §§ 2542, 2258.
Purpose of Section. — The evident purpose of the General
§ 2447. (§ 2058.) Attorney may be appointed to
receive service. — If any attorney so appointed
shall absent himself from this State, or his usual
place of business or abode, or shall secrete him-
self, so that process may not be served upon him,
or shall have become disqualified, from any cause
whatever, or shall die, the insurance com-
missioner shall immediately appoint an attorney
for service for such company, of Avhich appoint-
ment notice in writing shall be immediately given
by said insurance commissioner to such appointee
and also be sent to the company by mail, or to
its general agent or manager, which appointment
shall be as valid as if made by the company, and
shall continue in force until such absent agent or
attorney shall return and give to said, insurance
commissioner written notice thereof, or until the
company shall have made another appointment in
the manner above prescribed. Service of process
as aforesaid, issued by any such court as afore-
said, upon any such attorney appointed by the
company, or Iby the insurance commissioner,
shall be valid and binding, and be deemed
personal service upon such company so long as
it shall have any obligations or liabilities out-
standing in this State, although such company
may have withdrawn, been excluded from, or
ceased to do business in this State. If any com-
pany shall fail, neglect, or refuse to appoint and
maintain within this State such attorney or agent,
it shall forfeit the right to do or continue busi-
ness in this State. Acts 1887, p. 123.
As to service on fraternal beneficiary orders, see § 2874.
Duration of power of commissioner. — The power of the
commissioner to appoint successors to the agent originally
named, and the authority of the latter to acknowledge and
receive service, continues so long as there is any necessity
to sue the company for breach of contracts made in this
State. Equity tife Asso. v. Gammon, 119 Ga. 271, 46 S.
E. 100.
Where Appointee Absented Himself. — Where a foreign
insurance company maintained no place of doing business,
but appointed an agent under this section, and such agent
absented himself from the State, the insurance commis-
sioner could appoint a successor with authority to acknowl-
edge and receive service of process in behalf of such com-
pany, in all proceedings that might be instituted against
it, on contracts here made, in any court in this State.
Equity Life Asso. v. Gammon, 119 Ga. 271, 46 S. E. 100.
[594]
2448
FIRE AND CASUALTY INSURANCE AGENTS
§ 2448(6;
§ 2448. (§ 2059.) Company not complying, fees,
tc. — No person shall act as agent in this State
if any insurance company of this or any other
State or foreign government, doing a business in
ny manner, until said company has fully com-
plied with the provisions of this Article, and re-
eived from the insurance commissioner certifi-
ates of authority for itself and its agents to
ransact business in this State. The fees of the
isurance commissioner shall be as follows: For
iling certified copy of charter, twenty dollars;
or examination of annual statement, twenty dol-
irs; and for certificates of authority or li-
ense to agents, three dollars each, one fifth
f which shall be paid to the commissioner in full
ompensation for services in executing the pro-
isions of this Article: Provided, however, that
11 fire-insurance companies doing business in
his State shall in lieu of such fees and charges,
fey to the insurance commissioner one fee of
200.00, except fire and storm assessments com-
'anies whose business is confined to four counties
>r less or operated by independent divisions
omposed of four counties or less, which shall
>ay a fee of twenty-five dollars; and upon pay-
rig such fee and having otherwise fully complied
vith the provisions of this article such fire insur-
nce companies shall be entitled to receive
rom the insurance commissioner certificates
»f authority for itself, and its agent, to
ransact business in this State. Of the sum so
taid one fifth thereof shall go to the commis-
ioner. In addition to the payment of the above
ees, each of said companies shall make a report
o the commissioner on the first day of May of
:ach year, or within sixty days thereafter, under
»ath of the president or secretary thereof, show-
ng the entire amount of premium receipts of
very character and description (deducting re-
urn premiums on cancelled policies) of said
:ompanies in this State during the year or frac-
ional part of a year ending the 30th day of April
lext preceding, whether said premiums were re-
vived in money or in notes, credits, or any sub-
stitute for money, to ibe taxed as may be pro-
vided by law from time to time. Acts 1887, p. 124;
909, p. 87; 1910, p. 55.
See §§ 2443, 2459.
Editor's Note. — This section was amended by the acts of
1910, p. 55 by adding after the figures "$200.00" the provi-
sion for a smaller fee in case of fire and storm assessment
companies whose business is confined to four counties.
§ 2448(1). Solicitor's license. — All persons shall
3e required to procure a license from the Depart-
nent of Insurance before soliciting business in
:his State, except those agents whose names are
:urnished the Insurance Commissioner by some
•eputalble insurance company as its accredited
igents. Acts 1912, pp. 119, 124.
§ 2448(2). Requisites to obtain license; revo-
cation.— All agents soliciting insurance in the
State of Georgia shall, before procuring the li-
cense from the Department of Insurance, make
application to the commissioner and before the
said Commissioner shall issue such license, he
shall satisfy himself that such agent is authorized
by some reputable insurance company to do busi-
ness in this State and the Commissioner shall Ibe
advised and convinced as to the moral character
and integrity of such applicant for license. The
license of any soliciting agent may be revoked at
any time by the Insurance Commissioner in his
discretion. Acts 1912, pp. 119, 124.
Partial Unconstitutionality. — So much of this section as
provides that "the license of any soliciting agent may be
revoked at any time by the insurance commissioner in his
discretion," is contrary to the state and state Federal
Constitution guaranteeing due process of law. Riley &
Co. v. Wright, 151 Ga. 609, 107 S. E. 857. See, however,
the act of 1925, herein codified as § 2448 (10), which provides
for the revocation of agents' licenses and which is not sub-
ject to the objection made in the case cited above. See also,
§ 2448 (12). Ed. Note.
§ 2448(3) Observation of rules prerequisite to
license. — Anjr person or persons incorporated for
the purpose of soliciting or writing life insur-
ance in Georgia or for the purpose of offering
their stock in said company for sale to the public
before procuring a license for such incorporation,
shall comply with such reasonable rules and
regulations as the Insurance Commissioner may
in his discretion prescribe. Acts 1912, pp. 149,
130.
§ 2448(4). Statement showing agents. — The
managing agent of such insurance company in
this State shall on October 1st, 1912, and each
three months thereafter file with the Insurance
Commissioner a statement showing the agents
of his company, the amount paid for the license of
each agent, and the date of its payment, which
statement shall be verified by such managing
agent. Acts 1912, pp. 119, 127.
SECTION 6A.
Fire and Casualty Insurance Agents.
§ 2448(5). "Insurance agent" defined; "com-
pany" defined. — For the purposes of this Act an
"Insurance Agent" is hereby defined to be an in-
dividual or a corporation or any member of a
copartnership or association or any officer or
agent of a corporation authorized by any insur-
ance company lawfully qualified to transact busi-
ness in the state to solicit, negotiate or effect
contracts of insurance on behalf of any insurance
company. All such agents shall thereby become
liaible to all the duties, requirements, liabilities
and penalties herein provided, but this act shall
not apply to any executive or traveling salaried
employee of any such insurance company. The
phrase "company" or "insurance company" shall
include only insurance companies writing fire or
casualty insurance or both. Acts 1925, pp. 211,
212.
§ 2448(6). Agents licensed by insurance com-
missioner. — No insurance company admitted to
do business in this State shall write or issue any
fire or casualty insurance policy on any risk in
this State except through a resident agent or
resident agents licensed by the Insurance Com-
missioner of this State; nor shall any company
or agent pay any remuneration or commissions
for said business to any one except to an agent
licensed by said Insurance Commissioner, pro-
vided however, that this section shall not apply to
property of railroad companies and other com-
mon carriers. No person except as hereinafter
provided shall be licensed as an Insurance Agent
in this State except upon the application of a
[ 595 ]
§ 2448(7)
FIRE AND CASUALTY INSURANCE AGENTS
§ 2448(12)
company authorized to do business in this State,
which said application shall be accompanied by
a certificate signed by an executive officer of
such company and certifying that after inquiring
into the facts [the facts] to the best knowledge,
judgment and belief of such company, such per-
son is of good character and is or expects to be-
come Ibona fide engaged in the business of an in-
surance agent (as defined in this Act), that he
has such moral and financial standing as to make
it probable that he can carry on such an agency
without detriment to the public, that he expects
bona fide to serve the public and not to procure
the license chiefly for the purpose of getting a re-
bate or commission on insurance written for him-
self or his family or some partnership or corpora-
tion in which he is interested or with which he is
connected, and that he has such knowledge of the
business and, of the law and practices governing
and relating to the same as will enable him to
carry on the business in a competent manner and
without detriment to the public. Acts 1925, pp.
211, 212.
As to qualifications of local agents of mutual insurance
companies, see § 2448 (13).
Editor's Note. — The words "the facts," enclosed in brackets
by the editor, constitute an obvious repetition and typo-
graphical error. They appeared in the printed act of 1925.
§ 2448(7). Non-resident's license. — A license to
be known as a "non-resident's license" (to be
good for one year from date of its insurance)
will be granted by the Insurance Commissioner
to any non-resident of this State upon the writ-
ten application of such non-resident certifying
that he is regularly licensed Iby the Department
of Insurance of the State in which he resides, and
that he will not negotiate nor effect any contract
of insurance on property in this State in whole
or in part in any company not qualified to do
business in this State, and upon payment to the
Insurance Commissioner a fee of $10.00. Acts
1925, pp. 211, 213.
§ 2448(8). Corporations licensed. — No corpora-
tion shall be licensed as an insurance agent un-
less its charter expressly authorized it to engage
in that business and unless the company such
corporation represented or is to represent cer-
tifies in the manner provided for in § 2448(6)
hereof that some officer of said corporation is
qualified to act as insurance agent; the name of
such officer shall (be stated in the license of such
corporation and such license shall automatically
expire as and when such officer so certified
ceased to hold active connection with said, cor-
poration, but may be revived upon the substitu-
tion of some other officer of said corporation, duly
certified to and licensed as provided in § 2488(6)
hereof. Acts 1925, pp. 211, 213.
§ 2448(9). Business, where placed. — No agent
or non-resident shall solicit or be instrumental in
placing insurance upon any risk in this State ex-
cept in a company or companies admitted to do
business in this State; and the violation of this
provision shall be sufficient cause for the revoca-
tion of such agent's or non-resident's license.
Acts 1925, pp. 211, 213.
§ 2448(10). Investigation of agents; revocation
of licenses; rebates, etc. — The Insurance Com-
missioner may, upon his own motion, and must
upon a written complaint signed by a citizen of
this State and filed with the commissioner, in-
quire into any alleged illegal or improper conduct
of any licensed insurance agent in this State, and
any agent's license may be revoked or may be
suspended by the Insurance Commissioner after
giving such agent notice and opportunity to be
heard,, upon satisfactory proof that the agent has!
been guilty of immoral or illegal conduct or
such practices as to render him unfit to carry on
the business or to make his continuance therein
detrimental to the public interests, or that he is
no longer bona fide carrying on the business off
an insurance agent, but holds his license chiefly
for the purpose of securing rebates or commis-
sions on insurance written for himself or his
family or some partnership or corporation in!
which he is interested or with which he is con-
nected, or that the license was improperly orj
improvidently granted. Notice to such agent]
shall be sufficient if given personally or by reg-
istered mail to the last known address of such
agent or if the agent's address be unknown, by
posting in the pulblic office of the Insurance)
Commissioner in the State Capitol for ten days'
prior to the date of such inquiry. In connection
with such inquiry, the Insurance Commissioner
shall have the power to summon witnesses
against any agent and shall, upon the application
of such agent, summon his witnesses for the pur-
pose of testifying at such inquiry. Acts 1925, pp.
211, 214.
§ 2448(11). Revocation of licenses. — The In-
surance Commissioner may, upon his own mo-
tion, and must upon a written complaint signed
by a citizen of this State and filed with the Com-
missioner, inquire into any alleged illegal or im-
proper conduct of any licensed non-resident in-
surance agent in this State, and any non-resi-
dent's license may be revoked or may be sus-
pended by the Insurance Commissioner afterj
giving such non-resident notice and opportunity
to 'be heard, upon satisfactory proof that the
non-resident has been guilty of immoral or il-
legal conduct or such practices as to render him
unfit to carry on the business or to make his con-j
tinuance therein detrimental to the public in-
terests, or that the licenses was improperly orj
improvidently granted. Notice to such non-resi-
dent shall be sufficient if given personally or by
registered mail to the last known address of
such non-resident or if the non-resident's ad-
dress be unknown by posting in the public of-|
fice of the Insurance Commissioner in the Statel
Capitol for ten days prior to the date of such in-j
quiry. In connection with such inquiry, the In-j
surance Commissioner shall have the power to
summon witnesses against any agent and shall
upon the application of such non-resident, sum-
mon his witnesses for the purpose of testifying
at such inquiry. Acts 1925, pp. 211, 214.
§ 2448(12). Code sections 2448(1) and 2448(2)|
superseded in part; Code section 2445(a) and
(b) superseded. — This Act shall supersede the
provisions of §§ 2448(1) and 2448(2) so far as
they relate to the business of fire and casualty in-
surance, except to the extent that the agent
must first be designated by some company au-
[596 ]
§ 2448(13)
ASSESSMENT AND OTHER COMPANIES, REPORTS, ETC.
§ 2450
thorized to do business in this State as its
agent before a license other than a non-resident
license shall /be issued to him. Acts 1925, pp.
211, 215.
§ 2448(13). Code sections 2543(1)-2543(19)
not affected; applicability of act. — Nothing
herein contained shall be construed as repealing
or affecting the provisions of §§ 2543(l)-2543(l9)
relating to mutual co-operative fire insurance
companies; nor shall the provisions of this pres-
ent Act apply to said companies or to their
agents in the transaction of their business.
Provided, also, that mutual, insurance com-
panies licensed to do business in this State,
which issue policies upon which no compensation
is paid to a local agent in this State, shall be en-
titled to have their agents licensed on the appli-
cation for the license and the payment of the
license fee, and the requirements of § 2448(6) as
to the qualifications for agents to obtain license,
shall not apply in such instances. Acts 1925, pp.
211, 215.
SECTION
Comity to Foreign Insurance Companies.
§ 2449. (§ 2060.) When charges on companies
of this State greater than imposed by this State.
— Whenever the laws of any other State of the
United States shall require of insurance com-
panies chartered by this State, and having agen-
cies in such other State, or of the agents thereof,
any deposit of securities in such State for the
protection of policyholders or otherwise, or any
payment of penalties, certificates of authority, li-
cense fees, or otherwise, greater than the
amount required for such purposes from similar
companies of other States by the then-existing
laws of this State, then, and in every such case,
all companies of such States establishing or hav-
ing theretofore established an agency or agencies
in this State shall be and are hereby required to
make the same deposit for a like purpose with
the insurance commissioner of this State, and to
pay to said commissioner, for penalties, certifi-
cates of authority, license fees, or otherwise, an
amount equal to the amount of such charges im-
posed by the laws of such State upon companies
of this State and the agents thereof. Acts 1887,
p. 124.
See §§9, 2203, 6460, 6457. As to deposits by companies of
other states, see § 2419. As to reports of all corporations,
see § 2209. As to bonds and deposit required before trans-
action of business, see § 2418. As to reciprocity between
states, see § 2889.
SECTION 8.
Assessment and Other Companies, Reports, etc.
§ 2450. (§ 2061.) Sworn statement to be filed
by assessment companies, etc. — It shall not ,be
lawful for any corporation or association, or-
ganized under the laws of this or any other State
of the United States for the purpose of furnish-
ing life indemnity or insurance upon the assess-
ment plan by its agents, to do any business in
this State until such corporation or association
shall deposit with the insurance commissioner of
this State a certified copy of its charter or articles
[ 59
of incorporation; a copy of its statement of busi-
ness for the year ending the thirty-first day of
the next preceding December, sworn to by the
president and secretary or like officer thereof, set-
ting forth the number and amount of certificates
of membership or policies in force and a detailed
account of its expenditures, income, assets, and
liabilities, and also a certificate sworn to by the
president and secretary or like officer thereof, set-
ting forth that it has paid, and has the ability to
pa)', its certificates or policies to the full limit
named therein, that its certificates or policies are
payable only to the beneficiaries having a legal
insurable interest in the life of the member or the
insured, that an ordinary assessment upon its
members is sufficient to pay its maximum cer-
tificate of membership or policy theretofore or
thereafter to be issued to the full amount or limit
named therein; a certificate from the insurance
commissioner, or other like officer, charged with
the duty of executing or enforcing the execution
of insurance laws of its home State, certifying
that it is legally entitled to do business in said
home State; a copy of the application for mem-
bership or insurance, and of each form thereof
if more than one form is used; a copy of the con-
stitution and by-laws, and of each and every ad-
dition thereto, which must show that all indem-
nities to beneficiaries are in the main provided
for by assessments upon all surviving members.
And whenever said company shall fail to pay a
valid claim to the full limit named in any policy
issued by them to any resident of this State, the
insurance commissioner shall revoke their author-
ity to do business in this State: Provided, that
all such corporations or associations, organized
under the laws of this or any other State or
country, shall deposit with the treasurer of this
State stock or bonds approved by that officer in
an amount equal to twenty thousand dollars par
value, and of not less than twent}^ thousand dol-
lars market value: Provided, however, that in-
dustrial associations or assessment life-insurance
companies doing business on the industrial or
weekly payment plan, and issuing no policies for
an amount greater than five hundred dollars,
shall be required to deposit a sum equal to one
thousand dollars for each one million dollars in
force, and thereafter such industrial associations
or assessment life-insurance companies doing
business upon the industrial or weekly payment
plan, and issuing a policy for no greater amount
than five hundred dollars, shall be required to
deposit a sum not less than one thousand dollars
in each million dollars of insurance in force on
the last day of the last calendar year, as shown
by its annual statement, until the sum so de-
posited shall Ibe equal to one hundred thousand
dollars. The security so deposited shall be held
in trust for the benefit and protection of, and as
securit3r for, the policy-holders of such corpora-
tion or association, their legal representatives,
and beneficiaries. A corporation or association
organized under the laws of other States or
countries shall not be required to make such de-
posit, provided the corporation or association de-
siring to do business in this State shall make it
appear to the satisfaction of said insurance com-
missioner that it has on deposit with the proper
State official in the State or countrv of its in-
t]
§ 2451
ASSESSMENT AND OTHER COMPANIES, REPORTS, ETC.
§ 2455(1)
corporation a like amount of securities as is re
quired under the terms of this section, and which
are held by said authority in trust for the bene-
fit and protection of, and as security for, the
policyholders of such corporations or associa-
tions, their legal representatives, or beneficiaries.
Said securities shall so remain on deposit until
it has been made to appear to the satisfaction of
said insurance commissioner of this State that all the
debts and obligations of said company or associa-
tion due the citizens of this State have been dis-
charged, or, in case of non-resident companies, that,
after making deposit, or similar deposit has been
made with the proper State officials m the State or
country of its corporation, said securities shall be
subject to the debts due policyholders and bene-
ficiaries under the same rules and regulations as
govern the deposits required to be made by fire-
insurance companies under the laws of this State,
in so far as the same may be applicable. Com-
panies or associations now organized under the
assessment life-insurance laws of this State shall
not be required to make such deposits for and
during the year 1901; but said companies may
make such deposits for and during said year if
they so elect. Acts 1887, p. 124; 1900, pp. 47, 74;
1901, p. 33; 1905, p. 77.
See § 2413. For full treatment of beneficial and benevolent
associations, see 2 Cum. Dig-. 706; 2 Fnc. Dig. 330. For
full treatment of mutual insurance companies, see 8 Cum.
Dig. 780; 9 Fnc. Dig. 543.
§ 2451. Life-insurance on assessment plan. —
Any corporation chartered to do a life-insurance
business on the assessment plan, and doing busi-
ness in this State, may, if it so desire, by a com-
pliance with this and the three succeeding sec-
tions, be relicensed and authorized to transact a
general life-insurance business in this State, upon
filing with the insurance department of the State
all papers and documents and making the pay-
ments required under existing laws, so far as the
same are or may be applicable to such life-insur-
ance companies, and all business thereafter
transacted by such corporations in this State
shall be done in accordance with and governed
Iby the provisions of the laws of this State relat-
ing to life-insurance companies other than those
doing business on the assessment plan, except as
provided in this and the three succeeding sec-
tions. Acts 1900, p. 74.
For full treatment of mutual insurance companies, see 8
Cum. Dig. 780; 9 Fnc. Dig. 543.
§ 2452. Policies and certificates. — Every such
corporation, upon complying with the require-
ments of this and sections 2451, 2453, and 2454,
is authorized to carry out, in good faith, its con-
tracts heretofore made with its members, but all
policies or certificates of insurance heretofore is-
sued by such corporations and now remaining in
force, which contain a provision for a payment
other than the premium stipulated therein, and
under which the donation of premium payments
is coequal with the duration of the contract (en-
dowment policies and endowment certificates ex-
cepted), shall be valued and reserve maintained
thereon on the basis of renewable term insurance
as fixed by age, in accordance with the provisions
of section 2438. To the reserve liability de-
termined as above, the insurance commissioner
shall add the determinate contract reserve under
any other policies or certificates heretofore is-
sued and remaining in force, and in the absence
of such contract reserve shall value them as con-
tracts providing similar benefits are to be valued
under the provisions of section 2438: Provided,
that under no policy or certificate shall a greater
aggregate reserve liability (be charged than is re-
quired by said section.
§ 2453. Reserve. — No policy or certificate of
life-insurance shall be issued by a company li-
censed under section 2451, in this State, unless
in compliance with the provisions thereof. All
policies of life-insurance issued by such corpora-
tion, under this Article, whether or not they con-
tain a provision for a payment other than the
premium specified therein, shall be valued and
the reserve maintained thereon according to the
provisions of section 2438, and the nature of the
insurance as defined in each policy.
§ 2454. Societies to which this applies. — No law
which relates to the formation of corporations to
transact the business of life-insurance upon the
assessment plan, or which provides for the regu-
lation of the business of life-insurance by such
corporations, shall be applicable to companies
doing business under this and the three preced-
ing sections, except to the extent of permitting
the carrying out of contracts heretofore made
with members: Provided, nothing in this and
said preceding sections shall be construed to ap-
ply to any fraternal beneficiary order or society
operating on the system of lodges, councils, or
chapters, as defined by the laws of this State
regulating such orders or societies.
§ 2455. On assessment plan; policies, how writ-
ten.— 'Every policy or certificate issued to a resi-
dent of the State of Georgia by any corporation
transacting therein the business of life-insurance
upon the assessment plan, or admitted into this
State under the assessment laws of Georgia,
shall print in bold type (in red ink), in every
policy or certificate issued upon the life or lives
of the citizens of Georgia, making one of the
principal lines near the top thereof, the words
"issued upon the assessment plan," and, the
words "assessment plan" shall be printed con-
spicuously (in red ink) in or upon every appli-
cation, circular, card, advertisement, and, other
printed documents issued, circulated, or caused
to ibe circulated by such corporation within the
State: Provided, that this section, shall apply
only to such corporations or associations as
shall write or issue policies or certificates on the
post-mortem assessment plan, and shall not ap-
ply to such corporations or associations as shall
only issue policies under which the premiums are
stipulated, and made payable at fixed periods in
advance. If any such corporation or association
shall at any time fail or refuse to comply with
this section, the insurance commissioner shall
forthwith suspend or revoke all authority to such
corporation or association and all its agents to
do business in this State, and shall publish such
revocation in some newspaper published in this
State. Acts 1897, p. 67; 1898, p. 97; 1901, p. 77.
See § 15.
§ 2455(1). Life insurance on mutual plan, regu-
[ 598 ]
§ 2456
ASSESSMENT AND OTHER COMPANIES, REPORTS, ETC.
§ 2462
lations and requirements. — Life insurance com-
panies chartered by the laws of this State to ope-
rate on the mutual co-operative or assessment
plan without limitation as to the amount for
which policies of said company are to be issued,
shall stipulate definitely in the face of the poli-
cies the amount to Ibe paid to the beneficiaries on
the said policies in the event of the death of the
assured. In no event, shall payments to benefici-
aries by such companies be contingent upon the
number of policyholders in the company or on
the number in any division or branch of such
company. The intention of this law being to re-
quire the payment of the full face of the policy
as stipulated therein without regard to sub-divi-
sions of the membership of such insurance com-
panies in the management of their affairs. No
policy shall be issued by such companies without
subjecting applicants for such insurance to medi-
cal examination. It shall be the duty of the In-
surance Commissioner /to investigate the rates
of premiums which are to be charged by all
such companies, and he is hereby authorized to
require said companies to charge such rates as
are deemed by him adequate to pay their policies
at maturity. Acts 1912, pp. 119, 141.
§ 2456. (§ 2062.) Licenses to agents of assess-
ment companies. — After authorizing such corpo-
ration or association to do business in this State,
as provided in this Article, the insurance com-
missioner shall issue licenses to agents thereof,
to be designated by the corporation or association,
or a general agent thereof, authorizing them to
act as such agents during the year for which said
company is licensed; but such licenses must be
renewed annually. Acts 1887, p. 125.
§ 2457. (§ 2063.) Penalty for fraudulently pro-
curing insurance. — Any agent, physician, or other
person who shall knowingly secure, or cause to
be secured, a certificate of membership on any
person without his knowledge or consent, or, by
means of misrepresentations, false, fraudulent,
or untrue statements, be instrumental in secur-
ing a certificate of membership on any aged or in-
firm person, or in restoring to membership any
person not in an insurable condition, shall be
deemed guilty of a misdemeanor, and said certifi-
cate or renewal so secured shall be absolutely
void. Acts 1887, p. 125.
See P. C, § 627. As to penalty on agents of unauthorized
insurance companies, see § 2444.
§ 2458. (§ 2064.) Annual report of business. —
Every corporation or association, which may be
doing business in this State under the provisions
of this Article, shall, on or before the first day of
March in each year after it commences to do
business in the State, make and file with the in-
surance commissioner a report of its affairs ana
operations during the year ending the thirty-first
day of December next preceding. Such annual
reports shall be made upon blank forms to be
provided and furnished by the insurance com-
missioner, and shall be verified under the oath of
the president or secretary, or other like officers,
and shall be published, or the substance thereof,
in the annual report of said insurance commis-
sioner. Acts 1887, p. 126.
See §§ 2209, 986, 2872.
§ 2459. (§ 2065.) Fees to be paid. — There
shall be paid to the insurance commissioner, by
each corporation or association authorized to do
business in this State, the same fees as required
by section 2448, together with all such subse-
quent fees as are prescribed under said section.
In addition to the foregoing fees, every such
corporation or association shall, on or before the
first day of July of each year, report under oath
of its president and secretary, or other like offi-
cers, to the insurance commissioner the gross
amount received on ibusiness done in this State
during the year ending the thirtieth of April next
preceding, and shall at the same time pay into
the treasury of this State a tax of one dollar upon
each one hundred dollars of such gross amount
so received by said association or corporation:
Provided, however, that if such corporation or as-
sociation should at any time be the owner of any
real or personal property situated in this State,
such property shall not ibe exempt from taxation
by reason of the provisions of this section. Acts
1887, p. 126.
§ 2460. (§ 2066.) Failure to make such report
or pay tax. — If such corporation or association
shall at any time fail or refuse to make the an-
nual report, or to pay the tax on the gross amount
received, as hereinbefore provided, the insurance
commissioner shall forthwith suspend or revoke
all authority to such corporation or association,
and all its agents, to do business in this State,
and shall publish such revocation in some news-
paper published in this State, and may proceed
to collect whatever sum of money may be due
or owing on account of such tax by suit or ac-
tion, in the name of the State of Georgia, against
such corporation or association. Acts 1887, p.
126.
§ 2461. (§ 2067.) Exemption of fraternal, se-
cret, and industrial societies, etc. — Nothing in
this Article contained shall apply to or be con-
strued to require any fraternal, or secret, or in-
dustrial societies, or other associations exempt
by law, now organized or to be organized in this
State, to pay any license fee or tax, or to make
or file reports with the insurance commissioner,
or to prevent the same from doing business in
this State, when the money, benefit, charity, or
relief is payable by the grand or supreme body of
the same, and is derived from assessments on
subordinate lodges, councils, or other bodies or
their members. Acts 1887, p. 126.
See § 2866 et seq. For full treatment of beneficial or
benevolent associations, see 2 Cum. Dig. 706; 2 Enc. Dig.
330.
§ 2462. (§ 2068.) License of fidelity companies.
— Any corporation now or hereafter organized
under the laws of this State for the purpose of
transacting the business of fidelity-insurance
shall be licensed to transact business upon com-
pliance with all the requirements in this Article
prescribed with reference to life-insurance com-
panies organized under the laws of this State, so
far as the same may be applicable to such fidel-
ity-insurance compamr; am- fidelity-insurance
company incorporated and organized under the
laws of any other State of the United States, or
foreign governments, and which has a paid-up
capital of not less than two hundred and fifty
[ 599 ]
§ 2463
FIRE-INSURANCE CONTRACTS
§ 2470
thousand dollars, may be licensed to transact
business in this State upon compliance with all
the requirements prescribed by this Article, so
far as the same may be applicable, for license to
foreign life-insurance companies to transact
business in this State. Acts 1887, p. 127.
For full treatment of fidelity «tnc^ guaranty companies,
see 6 Cum. Dig. 197; 6 Enc. Dig. S97.
§ 2463. (§ 2069.) Live-stock and steam-boiler
insurance companies subject. — All live-stock and
steam-boiler insurance companies chartered toy
this State or other States of the United States,
or foreign governments, and doing business in
this State, shall be subject to all the requirements
of this Article in relation to life-insurance com-
panies, except the requirements in relation to
valuation of policies. Acts 1887, p. 127.
See generally, as to live stock companies, 8 Cum. Dig.
340; 9 Enc. Dig. 104.
§ 2464. (§ 2070.) Commissioner and inspectors
may administer oaths. — The insurance commis-
sioner and such person or persons as may be ap-
pointed by him to make inspections are hereby
authorized to administer any and all oaths to
parties and witnesses, as required under the pro-
visions of this Article.
§ 2465. (§ 2071.) Law applicable to individuals.
— 'All laws regulating the business of insurance
in this State by companies are applicable to in-
dividuals, associations, and corporations in like
business. Acts 1893, p. 81.
SECTION 9.
Pooling.
§ 2466. (§ 2085.) Unlawful for companies to
make contracts affecting competition. — It shall
be unlawful for any insurance company, or com-
panies, authorized to do business in this State, or
the agent or agents thereof, to make, maintain,
or enter into any contract, agreement, pool, or
other arrangement with any other insurance com-
pany, or companies, licensed to do (business in
this State, or the agent or agents thereof, for the
purpose of, or that may have the tendency or ef-
fect of, preventing or lessening competition in
the business of insurance transacted in this State.
And when it shall be made to appear to the com-
missioner of insurance that any company, or
companies, agent, or agents have entered into
any such contract, agreement, pool, or other ar-
rangement, said commissioner shall revoke the li-
cense issued to such company or companies, and
the same shall not be, reissued until the president
or chief officer of such company or companies
shall file an affidavit with said commissioner,
stating that such contracts, agreements, pools, or
other arrangements have been annulled and made
void: Provided, that nothing in this Article
shall be so construed as to prevent any insurance
company, legally authorized to transact business
in this State, from separately surveying, inspect-
ing, or examining the premises to be insured, by
and with the consent of the owner, for the pur-
pose of bringing about improvements in fire pro-
tection, so as to lessen the cost of insurance by
reducing rates. Acts 1890-1, p. 206.
See §§ 6466, 4253. See 7 Cum. Dig. 543.
§ 2467. (§ 2086.) Complaints by citizens and ci-
tation.— Any citizen of this State (whose rates of
insurance have been increased, or who has been
refused insurance at reasonable rates) shall have
the right to file a written complaint under oath, to
the ibest of his knowledge and belief, with the in-
surance commissioner, charging any company or
companies authorized to do business in this State-
with a violation of the preceding section, and
thereupon it shall be the duty of said insurance
commissioner to issue a citation, addressed to the
company or companies against whom said com-
plaint is made, requiring it, or them to be and ap-
pear before said insurance commissioner at a
time and place to be fixed by said insurance com-
missioner, not less than twenty nor more than
forty days from the date of the filing of such
complaint, and show cause why their license
should not be revoked as provided by the preced-
ing section. Said citation shall be served, not
less than ten days from the date of filing said
complaint, by the sheriffs or constables of said
State in the same manner as provided by law for
the service of process upon insurance companies.
Acts 1890-1, p. 206.
See §§ 2493, 2563.
§ 2468. (§ 2087.) Practice as to testimony, etc.
— For the purposes of the provision of this Arti-
cle, the insurance commissioner shall have power
to administer oaths, issue subpoenas for wit-
nesses, hear testimony, issue commissions for
taking testimony by interrogatories; and the
party or parties complaining, and the company
or companies defending, shall have the right to
serve notice for the production of books and pa-
pers, under the same rules as now provided Iby
law for civil actions in the superior courts.
§ 2469. (§ 2088.) Forum. — The county in which
the insurance commissioner shall fix the hearing
shall be the loci forum of said hearing or trial.
The costs and fees fof the sheriff or constable,
witnesses, and the commissioners taking inter-
rogatories shall be the same as now provided by
law for similar service in the superior courts of
this State, the same to be taxed against and paid
by the party or parties cast in said suit, and
against whom said insurance commissioner shall
find; for which costs said insurance commis-
sioner is hereby authorized to issue execution to
be levied and collected as executions from the
courts of this State.
As to salary of sheriff and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-
tion or more, see § 6017 (5); counties having between 44,-
000 and 60,000, and from 70,000 to 150,000 population, see §
6017 (12); counties of from 60,000 to 70,000 population, see
§ 6017 (25).
SECTION 10.
Fire-insurance Contracts.
§ 2470. (■§ 2089.) Contract of fire-insurance. —
The contract of ifire-insurance is one whereby an
individual, or company, in consideration of a
premium paid, agrees to indemnify the assured
against loss by fire to the property described in
the policy, according to the terms and stipula-
tions thereof. Such contract,, to be binding, must
[600]
§ 2470
FIRE-INSURANCE CONTRACTS
§ 2470
be in writing; but delivery is not necessary if, in
other respects, the contract is consummated.
Editor's Note.— It is provided by § 2499 that "the princi
pies before stated as to fire insurance, whenever ap-
plicable, are equally the law of life insurance." Therefore
the cases annotated under this and the following sections
pertaining to fire insurance, when they relate to the
general law of insurance rather than to fire insurance
specifically, would also be applicable to life insurance. A
full and comprehensive treatment of fire insurance will
be found by referring to 6 Cum. Dig. 218; 6 Enc. Dig. 207.
The object of all legitimate insurance is to secure in-
demnity only, and a policy of life-insurance which con-
templates anything beyond indemnity is a mere wager. Be
yond all doubt, "to indemnify the assured against loss,"
not to arbitrarily pay him the face value of the policy in
the event of damage by fire to the property insured, is
essentially the only office a policy of fire-insurance can
legally perform. Fireman's, etc., Co. v. Peker, 106 Ga. 1,
13, 31 S. E. 779.
When Contract Complete. — A completed contract of in-
surance exists when the minds of the insurer and of the
person to be insured meet upon the essential elements to
wit: the subject-matter to which the policy should attach;
the risk insured against; the duration of the risk; the
amount of the indemnity; the premium to be paid; subject
to the limitation that by statute in this State the policy
must be written, though not necessarily delivered. Ail
these essentials need not, however, be expressly negotiated
upon, but may be understood from custom, course of deal-
ing, or other circumstances from which assent to them may
fairly be implied,. Todd v. German American Ins. Co., 2
Ga. App. 789, 803, 59 S. E. 94; Ins. Co. of Newark v.
Rowell, 33 Ga. App. 552, 126 S. E. 892.
Filling in Blanks. — It is not essential to the validity of a
policy that the agent of the company, who filled blanks there-
in, should have been clothed with written authority. Smith v.
Farmers Mutual Ins. Asso., Ill Ga. 737, 36 S. E. 957.
Assignment. — To vest legal title to a policy of insurance
in an assignee, it is essential that the assignment be in
writing. This rule applies to life and fire policies. Steele
v. Gatlin, 115 Ga. 929, 42 S. E. 253; Northwestern Nat. Ins.
Co. v. Southern States Phosphate, etc., Co., 20 Ga. App.
506, 93 S. E- 157, and cases cited. As to assignment of
life policy, see § 2498 and notes thereto.
As an assignment of an insurance policy with the as-
sent of the company is a new contract of insurance between
it and the assignee, it must, under the provisions of this
section, be in writing. St. Paul, etc., Co. v. Brunswick
Grocery Co., 113 Ga. 786, 790, 39 S. E. 483.
"Binder." — A memorandum entered by an insurance
agent on the book of policies, pending determination of the
rate, may constitute a complete temporary contract of in-
surance. Queen Ins. Co. v. Hartwell Ice, etc., Co., 7 Ga.
App. 787, 795, 68 S. E. 310.
Contract Partly in Writing. — As the law of this State
requires that a contract for fire insurance shall be in
writing such a contract can not be made partly in writ-
ing and partly in parol. Athens Mutual Ins. Co. v. Evans,
132 Ga. 703, 712, 64 S. E. 993; Sparks v. National Union
Fire Ins. Co., 23 Ga. App. 38, 42, 97 S. E. 462.
Delivery. — "The manual delivery of the policy is not nec-
essary where the policy has been issued by the company
and simply retained by the agent for his individual pro-
tection until reimbursed by the insured." Metropolitan
Life Ins. Co. v. Thompson, 20 Ga. App. 706, 710, 93 S. E.
299.
"The receipt by an agent from his insurance company of
a policy to be unconditionally delivered by him to the ap-
plicant is, in law, tantamount to a delivery to the in-
sured, although the agent never parts with possession of
the policy, and although its delivery to the applicant is by
contract made essential to its validity." Metropolitan Life
Ins. Co. v. Thompson, 20 Ga. App. 706, 93 S. E. 299; South-
ern Life Ins. Co. v. Kempton, 56 Ga. 339; Firemen, etc.,
Co. v. Peker, 106 Ga. 1, 31 S. E. 779.
Same — Right to Withhold for Violation of Condition. —
Where the contract of insurance has been agreed upon by
the insurance company and insured had paid the considera-
tion therefor, it was a good contract, a valid policy, whether
it was delivered to the insured or was still in the hands of
the agent. And the insured is entitled to the policy and
the agent had no right in law to withhold it. The knowl-
edge of the agent that the insured had violated one of the
conditions of the policy by increasing the risk of the com-
pany would not authorize the agent to refuse to deliver »t
upon the insured's demand. Massachusetts Mutual Liff
Ins. Co. v. Boswell, 20 Ga. App. 446, 450, 93 S. E. 95.
Alterations. — In repeated adjudications by the Supreme
Court it has been held that an agreement to alter a con-
tract of fire insurance must be in writing. Lippman v.
Aetna Ins. Co., 108 Ga. 391, 33 S. E. 897, citing Augusta
Southern R. Co. v. Smith, 106 Ga. 864, 867, 33 S. E. 28;
Simonton v. Liverpool, etc., Ins. Co., 51 Ga. 76; Mitchell
v. Universal Life Ins. Co., 54 Ga. 289.
Stipulation as to Time. — No stipulation, under this sec-
tion, is more material than the period of time for which
the insurance is effected. Clark v. Hammond, 62 Ga. 23.
In this case it was held that the writing in question was
not sufficient under this section. Ed. Note.
Necessity for Authority. — A writing in the form of a
policy of fire-insurance will not constitute a valid contract
of insurance when it is not, at the time the contract there-
in purports to go into effect, executed by one authorized
to execute contracts in behalf of the alleged insurer.
Planters, etc., Fire Asso. v. DeLoach, 113 Ga. 802, 39 S. E.
466.
Agent Acting for Customers. — If an insurance company,
knowing or from the surrounding circumstances being
reasonably aware that its local agent is acting or assum-
ing to act for the customers of his agency in applying for
policies of insurance in their names on their property, and
without depending on the skill, advice, or loyalty of the
agent in the transaction, but acting upon its own judg-
ment as to the desirability of the particular risks, au-
thorizes the agent to write the policies, it will not be al-
lowed to complain that such local agent was also the agent
of the opposite parties to the contracts, but it will be held
bound on the policies so written. Todd v. German Ameri-
can Ins. Co., 2 Ga. App. 789, 59 S. E. 94.
Effect of Local Custom. — Where a contract of insurance
is not delivered, an agent whose duty it is to keep the
property of his principal insured is under obligation to see
that, in other respects, the contract is consummated; and
one being sued for a breach of duty, the burden of proving
that it was in fact consummated is on him. If he seeks
to show this by evidence of a local custom whereby it was
the practice of insurance companies to renew any policy
about to expire by sending out a new policy shortly be-
fore the expiration of the former one and presenting a bill
for the premium within a month or two after such expira-
tion, the burden is on him to establish that this custom
was complied with in the particular instance. Thomas v.
Funkhouser, 91 Ga. 478, 18 S. E. 312.
Agent Delegating Authority. — If a local agent of a fire-
insurance company, who is authorized by his principal to
procure insurance, write and countersign policies, collect
premiums, and deliver the policies to the insured, directs
his clerk during his temporary absence to issue policies
and sign the name of the agent thereto and collect prem-
iums, and the clerk, follows such direction, the writing of
the policy and signing of the name of the agent thereto
under these circumstances will be deemed the act of the
agent and binding upon the company. Atlas Insur. Co. v.
Kettles, 144 Ga. 306, 87 S. E. 1.
Effect of Acceptance of Premium. — The mere acceptance
by the person described in a writing in the form of a policy
of fire-insurance as the insurer of a sum of money as an
assessment or premium will neither have the effect of
rendering valid the unexecuted writing, nor of estopping
the alleged insurer from making the defense that the writ-
ing was not executed by any one authorized to act in its
behalf, when it appears that the assessment or premium
was accepted in ignorance of the fact that the writing was
not executed by one authorized at the time of its delivery
to act in behalf of the insurer, and that upon the discovery
of this fact the insurer promptly repudiated the act of the
person who had delivered the writing and returned to the
person claiming to be insured all the money which the
insurer or its authorized agent had received from him.
Planters, etc., Fire Asso. v. DeLoach, 113 Ga. 802, 39 S.
E. 466.
Can Not Recover for Loss Prior to Issuance. — A policy
of insurance bearing a given date, and purporting to in-
sure for the future only, can not be made the basis of an
action to recover for a loss occurring upon a prior date; and
if for any reason such policy is subject to reformation as
to date, it can be reformed only in a court having the
power to grant affirmative equitable relief in such matters.
Fowler v. Preferred, etc., Co., 100 Ga. 330, 28 S. E. 398.
Renewal — By Parol. — An action on a policy of insurance,
renewed or considered as renewed by parol, could not be
amended, so as to recover against the insurance company
for failing and refusing to renew the policy. Such an
amendment having been made, there was no error in dis-
missing the case on demurrer. Roberts v. Germania, etc..
Co., 71 Ga. 478.
[ 601
§ 2471
FIRE-INSURANCE CONTRACTS
§ 2471
construed. It is in the nature of the statute of frauds, de-
signed for the protection of persons insuring their lives
or property, and restricts the right to make parts of the
contract of insurance only the things specifically mentioned,
viz., "the application for insurance," and the "constitu-
tion, by-laws, or other rules of the company." State Life
Ins. Co. v. Tyler, 147 Ga. 287, 288, 93 S. F. 415.
Not Applicable to Suit by Policy Holders. — This section
is not applicable in a case where suit is brought by one or
more policyholders to establish the liability of other policy-
holders to pay assessments, and to compel them to con-
tribute to the payment of losses sustained by the complain-
ants. Alma Gin & Milling Co. v. Peoples, 145 Ga. 722, 89
S. E- 820.
Clause of Constitution Must Affirmatively Appear. — When
it does not appear affirmatively, either by proof or admis-
sion, that there was any clause in the constitution, or that
it was attached to or printed on the policy, by which the
policy was to be void if the insured premises should re-
main vacant 60 days before fire, without permit from the
insurer, it was held that under such facts it is impossible
for the court to declare that there was such a clause which
became a binding part of the contract, under this section.
Farmers Protective Fire Ins. Co. v. Portrum, 145 Ga. 825,
90 S. E. 49.
Necessity of Attaching Copy of Application. — Under this
section the application on which an insurance policy is
based is not to be considered as a part of the insurance
contract, unless a copy of the application is attached to or
accompanies the policy; and this is true even though it be
sought by the express terms of the policy itself to make
such unattached application a part of the agreement. Wilk-
ins v. National Life & Accident Ins. Co., 23 Ga. App.
191, 97 S. E. 879; Bankers Health & Life Ins. Co. v. Mur-
ray, 22 Ga. App. 495, 96 S. E. 347.
Therefore, statements made in the application are not to
be treated as warranties or covenants, on account of the
failure or falsity of which the policy may be avoided, un-
less a copy of the application is attached to the policy or
accompanies it, though representations contained in the
application, if fraudulently made, may give to the insurance
company the right to avoid the policy. Bankers Health &
Life Ins. Co. v. Murray, 22 Ga. App. 495, 96 S. F. 347.
Thus it has been held that while it is true that the repre-
sentations as made in such an unattached application can
not be treated as a part of the contract, and are not to be
taken as covenants or warranties, still if such statements
furnished the actual basis on which the policy was issued,
and they were not only false but were also fraudulently
made by the applicant acting for himself, the insurer may
set up such facts as a means of avoiding the policy, not
under and by virtue of the terms of the contract, but for
the reason that the insurance is thus shown to have been
fraudulently procured. Wilkins v. National Life & Acci-
dent Ins. Co., 23 Ga. App. 191, 97 S. F. 879; Life Ins. Co. v.
Pate, 23 Ga. App. 232, 97 S. F. 874; Johnson v. American,
etc., Ins. Co., 134 Ga. 800, 68 S. F. 731.
Same — Penalty for Failure. — The only penalty fixed by
this section for failing to attach to a policy of insurance a
correct copy of the application therefor, and of any by-
laws or rules, etc., therein referred to, is that they may
not be received in evidence either as a part of the policy
or as an independent contract, and can not be considered
as part of the policy or contract between the parties. This
rule does not apply to fraternal associations. Woodmen of
the World v. Keen, 16 Ga. App. 703, 705, 86 S. F. 88. But
see Heralds of Liberty v. Bowen, 8 Ga. App. 325, 68 S. F-
1008, where a contrary view is expressed as to fraternal
corporations but which seems to be contrary to the weight
of authority. Fd. Note.
Same — Example. — Pursuant to the provisions of this sec-
tion where to a suit on an insurance policy the defendant
filed two pleas: (a) that the policy was fraudulently pro-
cured by the beneficiary upon the life of a person other than
the person described in the application; (b) that certain
representations and statements were made in the applica-
tion for the policy, which also contained a covenant that
the applicant warranted the same to be true, and agreed
that the policy should be null and void if they should be
untrue; and that the representations were in point of fact
untrue and of such a character as to materially alter the
risk. The application was not attached to the policy nor
referred to therein. It was held: The application is not to
be regarded as a part of the contract. Torbert v. Cherokee
Ins. Co., 141 Ga. 773, 82 S. F. 134.
Effect of Attaching Copy of Application. — Where, in
conformity with the requirements of this section, an appli-
cation is actually attached to the policy of insurance, and
by the terms of the contract is made a part thereof, any
misrepresentation made by the agent in the application
[602 ]
An action on a parol renewal of an insurance policy is
demurrable. Roberts v. Germania, etc., Co., 71 Ga. 478.
Same — Necessity of Payment Premium in Cash. — It is
not essential to the validity of a policy of fire-insurance,
issued in renewal of one previously taken out by the in-
sured, that he should pay in cash the renewal premium,
provided the agent of the company, with its express or
implied assent, himself pays or undertakes to become re-
sponsible to it for such premium, in order that credit may
be extended to the insured. Fireman, etc., Co. v. Peker,
106 Ga. 1, 31 S. F. 779; Mechanics, etc., Ins. Co. v. Mutual
Bldg. Asso., 98 Ga. 262, 25 S. E. 457.
Same — Implied Assent. — From a general instruction by a
customer to an insurance agency, that it shall keep cer-
tain specified property of his insured in a designated
amount, his assent may be implied so as to give mutuality
to a contract of insurance, in usual form, and upon the
usual premium, written by that agency to replace a policy
which has become cancelled by the insolvency of the com-
pany originally insuring. Todd v. German American Ins.
Co., 2 Ga. App. 789, 59 S. E. 94.
Same — Acceptance of Offer by Insurer. — Where the
proposal to insure comes from the insurer he must be
notified of the acceptance of the offer by the insured, and
this rule applies to an offer to renew. Pennsylvania Fire
Ins. Co. v. Sorrells, 23 Ga. App. 398, 98 S. E. 358; Harper
& Co. v. Ginners Mutual Ins. Co., 6 Ga. App. 139, 64 S.
E. 567.
Signature to Policy. — The usual and proper place for the
signature is at the end of the matter which it attests. But,
in strict law, it will suffice if, with the intent to constitute
a signing, it is inserted in the writing at another place.
Delaware Ins. Co. v. Pennsylvania Fire Ins. Co., 126 Ga. 380,
55 S. E- 330. This case also pertains to sufficient allega-
tions of signature. Ed. Note.
Agent Representing Several Companies. — Where an agent,
representing several companies, fraudulently misled the
owners of certain goods, so as to induce them to believe
that the goods were insured by one company, but there was
no evidence to show which of the companies the agent
represented he was acting for at the time he did the acts
from which the fraud was sought to be inferred, a verdict
against one of such companies was without evidence to
support it. Underwriters' Agencv v. Seabrook, 49 Ga.
564.
§ 2471. Policies must contain the entire con-
tract.— All life and fire-insurance policies issued
upon the life or property of persons within this
State, whether issued 'by companies organized
under the laws of this State or by foreign com-
panies doing business in this State, which con-
tain any reference to the application for insur-
ance, or the constitution, by-laws, or other rules
of the company, either as forming part of the
policy or contract between the parties thereto or
having any bearing on said contract, shall con-
tain, or have attached to said policy, a correct
copy of said application signed by the applicant,
and of the by-laws referred to; and unless so at-
tached and accompanying the policy, no such
constitution or by-laws shall be received in evi-
dence either as part of the policy or as an inde-
pendent contract in any controversy between the
parties to or interested in the said policy, nor
shall such application or by-laws be considered a
part of the policy or contract between such par-
ties. Acts 1906, p. 107.
Cross References.— See generally 6 Cum. Dig. 224; 6 Fnc.
Dig. 211; 8 Cum. Dig. 260; 8 Enc. Dig. 806. As to good
faith required in application, see § 2479. As to by-laws
of mutual insurance companies forming part of policy con-
tract, see § 2530.
General Rule. — In a suit by the beneficiaries of a life-in-
surance policy against the insurance company, the policy,
and such papers as are made a part thereof, contain the
contract entered into between the insured and the insurer,
and must be looked to, in order to ascertain upon what
terms the parties agreed, and what are the rights and
liabilities of each. Mutual Life Ins. Co. v. Durden, 9 Ga.
App. 797, 72 S. F. 295.
Section Strictly Construed. — This section is restrictive of
the common-law right to contract, and should be strictly
§ 2471
FIRE-INSURANCE CONTRACTS
§ 2472
will be imputed to the insured, and the insured should not
be permitted to claim under the contract, without being
held to have had knowledge of the statements made in the
application actually attached to and forming an integral
part of the contract, as delivered, accepted, and sued on.
Wilkins v. National Life & Accident Ins. Co., 23 Ga. App.
191, 97 S. E. 879.
Same — Failure to State Material Fact. — Representations
made in an application for insurance which is attached to
and made a part of the policy are considered as covenanted
to be true by the applicant, and the policy will be voided
by any variation which changes the nature, extent, or
character of the risk. Any material representation of facts
by the assured, to induce the acceptance of the risk, will
void the policy if untrue; and while failure to . state a ma-
terial fact will not void a policy unless such failure be
fraudulent, a wilful concealment of such a fact, which would
enhance the risk, will void the policy. Mutual Life Ins.
Co. v. Bolton, 22 Ga. App. 566, 570, 96 S. E. 442.
Same — Failure to Include Application in Copy of Policy.
— And in a suit at law where it appears that the applica-
tion was in fact attached to the policy sued on, and was by
its terms made a part thereof, the mere fact that the
plaintiff fails to include the application in the copy of the
policy as attached to the suit would not alter the rule.
Wilkins v. National Life & Accident Ins. Co., 23 Ga. App.
191, 97 S. E- 879.
By-Laws — In September, 1906, a fire-insurance com-
pany, which assessed its members to pay losses, issued a
policy which contained a clause providing that the liability
of the company should cease if the insured should neglect
to pay any assessment within thirty days after the agent's
notices had been issued. The policy declared that the
company and the insured should be bound by the by-laws,
but no by-laws were set out or attached, as provided b\
this section (the provisions of this section were enacted
Aug. 17, 1906). It was held that, on the trial of a suit on
the policy, it was error to admit in evidence a clause of
the by-laws for the purpose of showing the provision as
to the manner of issuing notices of assessments. Puryear
v. Farmers Mutual Ins. Asso., 137 Ga. 579, 73 S. E. 851.
Subsequent Contract. — A contract for life insurance, as
expressed in the policy issued by a company to an indi-
vidual, may be supplemented by a subsequent contract
between the parties, expressed in a promissory note given
by the insured to the insurer for a premium on the policy
and providing for a termination of all rights under the
policy for non-payment of the note, although the policy
contain no such provision. State Life Ins. Co. v. Tyler,
147 Ga. 287, 93 S. E. 415.
Necessity of Attaching Copy of Policy. — In suits to re-
cover money on insurance policies which come under the
provisions of this section it is not necessary to attach a
copy of anything written or printed upon the policy, or to
set up anything other than "what appears upon the face
or in the body of the policy." Woodmen of the World v.
Keen, 16 Ga. App. 703, 705, 86 S. E. 88.
Admissibility of Rate Book.— Suit was brought on a
policy of life insurance containing the following provision:
"If the age of the insured is incorrectly stated, the
amount payable under this policy shall be the insurance
which the actual premiums would have purchased at the
true age of the insured." The age stated in the policy was
55 years. The defendant pleaded fraud in the procure-
ment of the policy, alleging that in fact the insured was
more than 70 years of age, and uninsurable. It was held,
that the rate book of the company was admissible for the
purpose of showing that there was no rate on a person
seventy years of age, and that the misrepresentation was
material. Johnson v. American, etc., Ins. Co., 134 Ga. 800,
68 S. E- 731.
"Condition and stipulations printed on the back of a fire-
insurance policy and not mentioned or referred to on the
face of the policy are not part of the policy or binding on
the assured." Smyly v. Globe, etc., Fire Ins. Co., 28 Ga.
App. 776, 113 S. E. 220.
Fraternal Beneficiary Orders — This section declares what
shall constitute the policy of insurance, and is a distinct
provision of the law of life and fire insurance, and § 2869
has the effect to take from its operation benefit certificates
issued by fraternal beneficiary orders or associations as de-
fined in § 2866. It follows that, where a benefit certificate
oi^ a fraternal association refers to the application, con-
stitution, and by-laws of the association as being a part
Df the contract, in an action on such benefit certificate the
application, constitution, and laws of the association are
receivable in evidence as part of the contract of insurance.
Fraternal, etc., Asso. v. Evans, 140 Ga. 284, 78 S. E. 915.
See also Supreme Ruling, etc. v. Blackshear, 13 Ga. App.
329, 79 S. E- 210; Woodmen of the World v. Keen, 16 Ga.
App. 703, 86 S. E. 88. But see Heralds of Liberty v.
Bowen, 8 Ga. App. 325, 68 S. E. 1008.
§ 2471(1). Standard form of policy. — Each and
every fire insurance company doing business in
this State shall adopt and write a standard or
uniform policy, such as may be prescribed by the
Commissioner, provided that any policy condi-
tion requiring the insured to procure the certifi-
cate of the nearest magistrate or notary public
(not interested in the claim as a creditor or other-
wise, nor related to the insured) living nearest
the place of the fire, stating that he had examined
the circumstances and believes the insured has
honestly sustained loss to the amount that such
magistrate or notary public shall certify, shall be
null and void, and it shall be unlawful to issue
any other class of policy in this State. Pro-
vided, however, that local assessment fire insur-
ance companies doing business in not more than
four counties in a division in the State of Georgia
may issue and write such form of policy as may
be prescribed by the Commissioner. Acts 1912,
pp. 119, 131; 1921, p. 208.
Quoted in Thornton v. German Fire Ins. Co., 26 Ga. App.
659^ 660.
§ 2472. (§ 2090.) Interest of assured.— To sus-
tain any contract of insurance, it must appear
that the assured has some interest in the prop-
erty or event insured, and such as he represented
himself to have. A slight or contingent interest
is sufficient, whether legal or equitable, and sev-
eral having different interests may unite in pro-
curing one policy: so a husband or parent may
insure the separate property of his wife or child,
the recovery being held by him in trust for them;
but a mere expectation of an interest is not in-
surable.
See 6 Cum. Dig. 231; 6 Enc. Dig. 214.
Test of Insurable Interest. — "The test of insurable in-
terest in property is whether insured has such a right,
title, or interest therein, or relation thereto, that he will
be benefited by its preservation and continued existence or
suffer a direct pecuniary loss from its destruction or in-
jury by the peril insured against." New Jersey Ins. Co.
v. Rowell, 157 Ga. 360, 121 S. E. 414.
"It is enough if he (the assured) holds such a relation to
the property that its destruction by the peril insured
against involves pecuniary loss to him." New Jersey Ins.
Co. v. Rowell, 157 Ga. 360, 121 S. E. 414.
Husband Insuring Property of Wife. — Where the insurer,
through the agent issuing it, had actual notice from the
husband, that the property insured belonged to his wife,
the policy will be construed as a valid contract of in-
surance, covering the property of the wife though issued
to the husband, issued to the husband as trustee, and the
husband can recover therefor for the benefit of the wife.
Peoples, etc., Fire Asso. v. Wyatt, 31 Ga. App. 684, 121 S.
E. 708, and cases cited.
Same — Where Wife Joint Owner with Others. — Where a
policy of fire insurance was issued to a husband designated
generally as "trustee," and another, the former, if his wife
was part owner of the property covered by the policy, has
such an insurable interest therein as would authorize him.
for her benefit, to join with the other person insured in an
action upon the policy. Southern, etc., Co. v. Turnley, 100
Ga. 296, 27 S. E. 975.
^Same — Contract Must be Made in Representative Capac-
ity.— Under the provisions of this section, a husband or
parent has such an insurable interest in the separate prop-
erty of his wife or child, but a contract on such property
must be made by the husband or parent in his representa-
tive capacity, not as an individual. Fox v. Queen Ins. Co.,
124 Ga. 948, 53 S. E. 271.
Life Estates. — A policy of fire insurance issued to one
who has only a life-estate in the property insured is in-
operative as to loss occurring after his death, since the
termination of the life-estate by his death terminates his
[603 ]
2472
FIRE-INSURANCE CONTRACTS
2475
insurable interest in the property. Garnett v. Royal Ins.
Co., 23 Ga. App. 432, 98 S. E. 363.
"A lessee has an insurable interest in the leased prop-
erty." New Jersey Ins. Co. v. Rowell, 157 Ga. 360, 121 S.
E- 414.
A suit brought by the lessee of a building on a policy of
fire insurance seeking to recover for loss to the building
and the stock of goods is not subject to a general demur-
rer. New Jersey Ins. Co. v. Rowell, 157 Ga. 360, 362, 121
S. E. 414.
Creditors. — A simple contract creditor, without a lien
either statutory or contract, without a jus in re or jus in
rem, owning a mere personal claim against his debtor, has
no insurable interest in the property of the debtors. North-
western Nat. Ins. Co. v. Southern States Phosphate, etc.,
Co., 20 Ga. App. 506, 93 S. E. 157.
Policy for Benefit of Brother. — A life insurance policy
may be taken out for the benefit of a brother of the in-
sured, and it is immaterial what arrangements are made
between them for the payment of premiums. Fidelity
Mut. Life Ass'n v. Jeffords, 107 Fed. 402.
Sole and Unconditional Ownership. — The insured will be
deemed to have "sole and unconditional" ownership when-
ever, under a claim of right, he has the exclusive and un-
disputed use, possession, and enjoyment of the property.
Giles v. Citizens, etc., Co., 32 Ga. App. 207, 209, 122 S. E-
890.
A policy of fire insurance was issued to A individually,
purporting to insure a described building. There was
nothing in the policy to indicate that A's interest was
other than individual. The policy contained a stipulation
that it should be void "if the interest of the insured be
other than unconditional or sole ownership, or if the sub-
ject of insurance be a building on ground not owned by
the insured in fee simple." After a loss a suit was brought
upon the policy by A as trustee for his children, the peti-
tion alleging that he held title to the property in trust for
his children. It was held, that the petition was properly
dismissed on demurrer. Fox v. Queen Ins. Co., 124 Ga. 948,
53 S. E. 271.
Same — Knowledge of Agent. — While ordinarily a policy
of fire insurance, containing a provision that: if the in-
terest of the insured be other than unconditional and sole
ownership, or if the subject of insurance be a building on
ground not owned by the insured in fee simple; is void if
the insured be not the sole and unconditional owner of the
property covered by the policy, together with the land upon
which the buildings are situated, still, even though the in-
sured be not such sole owner, if the agent of the insurance
company knew at the time of the issuance of the policy the
real facts as to ownership, the policy would nevertheless
be binding, since the company would be estopped, by rea-
son of such knowledge, from setting up the non-compliance
of the insured with this condition of the policy. Black-
stock v. Jefferson Ins. Agency, 23 Ga. App. 642, 99 S. E. 142.
Burden to Disprove Ownership. — The possessor of per-
sonal property is presumed to be its owner, until the con-
trary appears. In an action against an insurance com-
pany upon a policy insuring property as belonging to the
policyholder, where the company sets up the defense that
he is not the owner of the property, the burden is upon it
to disprove his ownership. Giles v. Citizens, etc., Co., 32
Ga. App. 207, 122 S. E. 890.
Necessity of Alleging Ownership. — By virtue of this sec-
tion, in a suit upon a policy of fire insurance, it is in-
cumbent upon the plaintiff to allege in his petition that
the property destroyed by fire belonged to him, or that he
had some insurable interest therein, at the time of the fire.
Where the petition contains no such allegation, no cause
of action is set forth. Northwestern Nat. Ins. Co. v. South-
ern States Phosphate, etc., Co., 20 Ga. App. 506, 93 S. E-
157, and cases cited.
Recital as Constituting Warranty. — The recital of owner-
ship in a policy of insurance is not such a technical ex-
pression as amounts to warranty, under our law. South-
ern Ins., etc., Co. v. Lewis & Bros., 42 Ga. 587.
Change of Title — See § 2484 and notes thereto.
Stolen Property. — "The bona fide possession of stolen
property does not give the holder any sort of title what-
ever, such as would come up to the rule governing an in-
surable interest; nor does his bona fide possession of stolen
property constitute such an exclusive and undisputed claim
as would entitle him to be called the "sole and exclusive"
owner. Not only has the real owner a contrary claim, but
an uncontestable claim, and the fact that he is unable to
assert it until the whereabouts of his property has been
located does not render the claim of the bona fide holder in
possession either undisputed or uncontested. Giles v. Citi-
zens, etc., Co., 32 Ga. App. 207, 209, 122 S. E. 890.
Removal of Property Insured. — It is a well-recognized
general rule that a policy of fire insurance which is ex-
pressly limited to loss occasioned while the insured prop-
erty is located in a definite and particular place does not
impose liability such as will follow the property upon its
being removed to and destroyed at another and different
place. Liverpool, etc., Ins. Co. v. Ga. Auto, etc., Co., 29
Ga. App. 334, 348, 115 S. E. 138. See § 2482 and note
thereto.
The use of the particular words of limitation, "while"
contained in a certain described building "and not else-
where" quoted from the "standard fire policy" clause does
not, however, constitute the only means of manifesting an
intent to impose such a limitation upon the liability of the
insurer. For example, in a policy which did not contain
such a clause, it has been held that, where the insured
property is described in no other way than as being con
tained in a certain building, no liability can extend for loss
incurred elsewhere. Liverpool, etc., Ins. Co. v. Ga. Auto.
etc., Co., 29 Ga. App. 334, 348, 115 S. E. 138.
Assignment. — An assignment of the policy as collateral
security will not enable the assignee to maintain an ac-
tion, unless it is alleged in the petition that at the time
of the fire he had an interest in the property insured.
Northwestern Nat. Ins. Co. v. Southern States Phosphate,
etc., Co., 20 Ga. App. 506, 93 S. E. 157. See § 2484 and notes
thereto.
Description of Property. — While it is true that a plaintiff
can not recover in an action on a fire insurance policy ex-
cept by showing that the property in his possession at the
time the policy was issued was the same as that described
in the policy still where the insured is the actual owner of
the property which is the subject-matter of the contract of
insurance, and has insurable interest therein, the mere fact
that the original factory number of the motor of an insured
automobile may have been changed without his knowledge
would not of itself render the contract of insurance null
and void with reference to the insurance on the car actually
dealt with by the contracting parties. Giles v. Citizens,
etc., Co.. 32 Ga. App. 207, 208, 122 S. E. 890.
Instructions. — When the judge charged the jury, that in
his opinion, A had an insurable interest: It was held, that
this was an improper mode of presenting the case. He ought
to have called the attention of the jury to the facts, and
then stated: "If you believe, etc., etc., then in the opinion
of the Court, under the law, you will find that he had an
insurable interest." Southern Ins., etc., Co. v. Lewis &
Bros., 42 Ga. 587.
§ 2473. (§ 2091.) Insuring interest of another.
— If one undertakes to insure the interest of an-
other, it must be done by his consent, or be sub-
sequently ratified by him; but an insurer may re-
insure to protect himself against loss on his con-
tract.
See § 2472 and notes thereto.
§ 2474. (§ 2092.) Insurance on changing prop-
erty.— A policy of insurance may be made to
cover property changing daily in its specific arti-
cles, as a stock of goods.
See § 2545.
§ 2475. (§ 2093.) Construction. — The contract
of insurance should be construed so as to carry
out the true intention of the parties.
See § 4265 et seq. As to construction of policies as to
interest of insured, see notes to § 2472.
General Rules of Constructions. — The same rules of con-
struction apply to contracts of insurance as to other con-
tracts, and the true rule for their interpretation may be
stated to be, that stipulations and conditions in policies of
insurance, like those in all other contracts, are to have
reasonable intendment, and are to be so construed, if pos-
sible, as to avoid forfeitures and to advance the beneficial
purposes intended to be accomplished. Clay v. Phoenix Ins.
Co., 97 Ga. 44, 53, 25 S. E. 417; State Mutual Life Ins. Co.
v. Forrest, 19 Ga. App. 296; Cherokee Brick Co. v. Ocean
Acci. Co., 21 Ga. App. 702, 94 S. E. 1023. As to construction
of contracts generally, see 4 Cum. Dig. 39, 3 Enc. Dig. 499.
A contract of insurance should not be construed other-
wise than as literally expressed, unless, when so viewed,
its substantial purpose should so require. Cherokee Brick
Co. v. Ocean Acci., Co., 21 Ga. App. 702, 94 S. E. 1032.
The ordinary and legal meaning of the words employed in
an insurance policy must be taken into consideration. North
British & Mercantile Ins. Co. v. Tye, 1 Ga. App. 380,
[604 ]
§ 2476
FIRE-INSURANCE CONTRACTS
§ 2477(1)
58 S. E. HO; Liverpool, etc., Ins. Co. v. Ga. Auto., etc.,
Co., 29 Ga. App. 334, 115 S. E. 138.
In some cases the valuation of the property and the
premium collected thereon may be submitted to the jury, in
ascertaining the intention of the parties, in addition to the
intention to be drawn from the words used to describe the
property insured in the policy. North British & Mercan
tile Ins. Co. v. Tye, 1 Ga. App. 380, 58 S. E. HO.
Where Capable of Two Constructions. — Insurance policies
are prepared and proposed by the insurers; and, where
such a contract is capable of being construed in two ways,
-that interpretation must be placed upon it which is most
favorable to the insured. State Mutual Life Ins. Co. v.
Forrest, 19 Ga. App. 296, 91 S. E- 428; Massachusetts Ben.
Life Asso. v. Robinson, 104 Ga. 256, 30 S. E. 918; Athens Mut.
Ins. Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013; Southern
Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821.
Conditions Repugnant.— If the condition be so repugnant
to the stating clause of insurance as that both can not
stand together, courts should disregard the condition, upon
the idea that it will not be presumed that the insurance
company issues a policy of insurance with an intention
never to become liable thereon. Clay v. Phoenix Ins. Co.,
97 Ga. 44, 52, 25 S. E. 417.
Ambiguties. — Where the meaning of a contract of in-
surance, by reason of inconsistent provisions therein, is
ambiguous, that construction will be adopted which is most
favorable to the insured. Hall v. Royal Fraternal Union,
130 Ga. 820, 61 S. E. 977.
Usages and Customs It is well settled that insurers are
bound to know the customs of a place where they trans-
act business; and are assumed to have made their con-
tracts in reference to such customs. Todd v. German
American Ins. Co., 2 Ga. App. 789, 59 S. E. 94.
Construction as to Kind of Policy. — In the absence of
express language manifesting such an intent, a policy of
fire-insurance will not be construed to be a "valued policy,"
so as to preclude, in case of a fire, full investigation as to
the actual value of the property lost or destroyed. Georgia
Co- Operative Fire Ass'n v. Lanier, 1 Ga. App. 186, 57 S.
E. 910.
Location of Property. — Where no words of limitation are
used, as to the location of the property insured, the intent
of the parties must be gathered in each particular case from
the language used, as viewed in the light of the attendant
circumstances. Liverpool, etc., Ins. Co. v. Georgia Auto.,
etc., Co., 29 Ga. App. 334, 349, 115 S. E. 138. See notes of
-this case under § 2472.
§ 2476. (§ 2094.) Loss, what is. — A loss or in-
jury may occur from fire without the actual
burning of the articles or property; as, a house
blown up to stop a conflagration, or goods re-
moved in imminent danger, or damage by water
used to extinguish the flames.
See § 2545.
Loss by Explosion. — A loss caused from concussion alone
produced by explosion of dynamite employed by the fire
-department in blowing up a neighboring building to pre-
vent a farther spread of a conflagration which threatened
to burn the injured building, fell within an exception in the
policy that the insurer should not be liable for loss caused
directly or indirectly by explosion of any kind, unless fire
ensues, and in that event for damage by fire only, and the
company was not liable therefor; and this is true notwith-
standing the declaration of this section. Westchester Fire
Ins. Co. v. Bell, 151 Ga. 191, 106 S. E- 186, overruling the
holding of the superior court in the same case, reported
in 24 Ga. App- 528, 101 S. E. 590.
The provision of this section, which in effect declares
that a house blown up to stop a conflagration may be con-
sidered a loss by fire, can not be considered a part of a
contract for insurance, where the language embodied in an
exception in the policy necessarily excludes the provisions
of the code section from the contract made by the policy.
Westchester Fire Ins. Co. v. Bell, 151 Ga. 191, 193, 106 S. E.
186. On this reasoning the holding of the superior court in
24 Ga. App. 526 was overruled, the superior court was of
the opinion that the code section should be incorporated in
the policy, thus rendering the exception therein contained
nugatory. Ed. Note.
Injury Caused by Falling Walls. — Where a building had
heen considerably injured by fire and after it was repaired
the insured resumed business and goods were subsequently
injured by the falling of the walls of the building twenty-
five days after the fire, the trial judge did not err in hold-
ing that the loss was not the proximate result of the fire.
Guesta v. Royal Ins. Co., 98 Ga. 720, 27 S. E. 172.
Damages for Packing Goods to Remove, — The insurer is
liable for loss caused by packing and preparing the goods
for removal from the premises, although they are not ac-
tually carried out of the house, if at the time the work of
removal is thus begun the property is in such imminent dan-
ger of being destroyed by fire that a reasonably prudent
man would take measures to protect it. Insurance Co. v.
Leader, 121 Ga. 260, 48 S. E. 972.
Smoke and Soot from Fire in Stove. — An insurance com-
pany which by its policy contracts to insure "against all
direct loss or damage by fire," etc., is not liable for damages
arising from smoke and soot escaping from a defective or
disarranged stovepipe, and emanating from a fire intention-
ally built in a stove. Cannon v. Phoenix Ins. Co., 110 Ga.
563, 35 S. E- 775.
§ 2477. (§ 2095.) Loss unknown to the parties. —
If the loss has already occurred, and both parties
are ignorant of it, the contract is valid; but the
slightest grounds of suspicion known to the in-
sured will vitiate the contract unless made
known to the insurer.
Property Destroyed before Approval of Application. — If
property has been actually destroyed before the application
was approved, and the general agent acted in ignorance of
this fact, approved the application, the company was not
bound either to issue a policy or pay the loss. Firemans
Fund Ins. Co. v. Rogers, 108 Ga. 191, 33 S. E. 954.
Acceptance of Cancellation. — Where a policy contains a
provision that the insurer may cancel the policy upon the
return of the unearned premium the surrender of the policy
for cancellation prior to the loss, and subsequent payment
of the unearned premium to the assured, and acceptance by
him, after destruction of the property insured, both parties
being ignorant of the loss, will not release the company
from liability. Hollingsworth v. Germania, etc., Co., 45
Ga. 294.
§ 2477(1). Application to court for umpire on
appraisal of loss; notice and service; contrary
stipulation void. — When in the event of loss or
damage to property in this State, described in
any policy of fire insurance and covered thereby,
the ascertainment of any such loss or damage is,
as provided in the policy, to be determined 'by
appraisers, one selected by the company, the
other by the insured, and the two so chosen shall
have failed or neglected, for a space of ten days
after both have been chosen, to agree upon and
select an umpire, it shall be lawful for either the
assured or the company to apply to any court of
record in the county in which the property is or
was located, on five days' notice in writing to the
other party of his or its determination so to do,
to appoint a competent and disinterested umpire.
Any such notice in writing, when served, by the
insured, may be served upon any local agent of
the company; and the said court shall, on proof
by affidavit of the failure or neglect of the said
appraisers to agree upon and select an umpire
within the time aforesaid, and of the service of
notice aforesaid, forthwith appoint a competent
and disinterested person to act as umpire in the
ascertainment of the amount of said loss or dam-
age; and the acts of the umpire so appointed shall
be binding upon the insured and the company to
the same extent as if such umpire had been se-
lected in the manner provided for in said policy
of insurnce. Any stipulation in any policy of fire
insurance contrary to the terms of this act shall
be void. Acts 1916, p. 128.
Jurisdiction for Appointment of Umpire. — In Philadelphia
Underwriters v. Folds, 156 Ga. 774, 775, the court said:
This section empowers the court, after due notice, to ap-
point a "competent and disinterested umpire."' Standing
alone, the words quoted are quite indefinite as to where
the jurisdiction lies for such appointment. The caption of
[605 ]
§ 2478
FIRE-INSURANCE CONTRACTS
§ 2479
the act (from which this section is taken), however,
throws much light on the question. It is as follows: "an
act to provide for the appointment of an umpire by any
court of record, in fire insurance appraisals, in the county
where the loss occurs, provided the appraisers chosen fail
to select such umpire within ten days."
Where, from the time of the issuance of a policy of fire
insurance upon an automobile until the day on which it
was damaged by fire, the automobile was located in a
certain county of this State, of which county the insured
was and has continued to- be a resident, and where the
automobile was in another county at the time the damage
occurred, and it was thereafter carried in its salvaged state
into a third county, the superior court of the first-men-
tioned county has not jurisdiction and authority to enter-
tain an application and appoint an umpire upon the peti
tion of the insured, under this section. Philadelphia Un-
derwriters v. Folds, 156 Ga. 773, 120 S. E. 102.
Appointment of Umpire Not Judicial Act.— The order of
the superior court appointing an umpire, can not be re-
viewed by writ of error, and the Court of Appeals has not
the power to entertain an assignment of error based there-
on Philadelphia Underwriters v. Folds, 156 Ga. 773, 120
S. E- 102. S. C, 31 Ga. App. 315, 120 S. F. 703.
§ 2478. (§ 2096.) Diligence by assured. — The
assured is bound to ordinary diligence in pro-
tecting the property from fire, and gross negli-
gence on his part will relieve the insurer. Sim-
ple negligence by a servant, or the assured, un-
affected (by fraud or design in the latter, will not
relieve the insurer. ,
Simple Negligence.— Whether the words "simple negli-
gence" as used in this section mean ordinary or slight
negligence is ambiguous and § 2482, pertaining to increas-
ing risk by negligent acts, may be looked to for aid in
construction. Adair v. Southern, etc., Ins. Co., 107 Ga. 297,
304, 33 S. F. 78; Southern Mutual Ins. Co. v. Hudson, 113
Ga. 434, 38 S. E. 964. See § 2482 and notes thereto.
Question for Jury.— It is for the jury alone to determine
whether the means resorted to by the insured for the pro-
tection of the goods were reasonable or not. Insurance
Co. v. Leader, 121 Ga. 260, 48 S. E. 972.
§ 2479. (§ 2097.) Application, good faith.—
Every application for insurance must be made
in the utmost good faith, and the representations
contained, in such application are considered as
covenanted to be true by the applicant. Any
variation by which the nature, or extent, or
character of the risk is changed will void the
policy.
As to when concealment is fraud, see §§ 4114, 2481. As
to good faith required in mutual insurance, see § 2533.
Editor's Note.— This section and the three sections im-
mediately following are so closely allied, that the annota-
tions under one resemble the annotations under the others,
and the three notes must necessarily be read together. The
cases directly construing this section are comparatively
meager, and for a comprehensive treatment of the subject
reference should be made to Life Insurance, 8 Cum. Dig.
258; 8 Enc. Dig. 804; Fire Insurance, 6 Cum. Dig. 223,
6 Enc. Dig. 210.
In General.— Under this section, applications for insurance
must not only be made in the utmost good faith, but the
representations contained therein are covenanted to be true
by the applicant. Not that they are warranties so as to
vacate the policy, if any of them, whether material or not,
are not true; but any variation in them from what is true,
whereby the nature or extent or character of the risk is
changed, will, if the policy makes them the basis of the
contract of assurance, void the policy, whether they are
or are not willfully and fraudulently made. Southern Life
Ins. Co. v. Wilkinsonj_^53_ Ga. 536.
Wherever an applicant for life insurance makes material
representations in his application or examination, and
covenants that they are true, under this section, and these
representations are made the basis of the contract of in-
surance, such contract is void if the representations vary
from the truth in such manner as to change the nature,
extent, or character of the risk. This is true although the
applicant may have made the representations in good faith,
not knowing that they are untrue. Supreme Conclavie
' Knights v. Wood, 120 Ga. 328, 337, 47 S. F. 940; Morris v.
Imperial Ins. Co., 106 Ga. 461, 32 S. F- 595.
Representation Must Be Material. — The representations
when made, if material, are warranties but they differ
from the ordinary warranty in that their falsity does not
avoid the policy unless they are material and the variation
from truth is such as to change the nature, extent, or
character of the risk. Supreme Conclave Knights v. Wood,.
120 Ga. 328, 337, 47 S. E. 940; Mobile Fire Dept. Ins. Co.
v. Miller, 58 Ga. 421; Rosser v. Georgia Home Ins. Co.,
101 Ga. 716, 29 S. E. 286. See § 2480 and note thereto, and
see 6 Enc. Dig. 210.
Same — Question of Fact. — See note to § 2480.
Statement to Best of Knowledge and Belief. — Where a.
life-insurance policy is made conditional on the statements
in the application being true, and the application states thit
the facts stated are true to the best of the applicant's,
knowledge and belief, it will not avail the company as a
defense to show that the facts stated were false, without
showing that they were known to be false. O'Connell v.
Knights of Damon, 102 Ga. 143, 28 S. E. 282.
Representations as to Health. — A statement in an applica-
tion for reinstatement of a policy of insurance, rendered nec-
essary by the lapse of the same, that the insured is in
"good health," is not to be construed as a warranty that his,
health is absolutely perfect, but only that his health is prac-
tically the same as it was when the policy was issued. Mas-
sachusetts Ben. Life Asso. v. Robinson, 104 Ga. 256, 30 S. F-
918.
In view of this and the three folllowing sections, an un-
true statement by insured that he did not have consump-
tion, or his omission to name, when requested, all physi-
cians, who examined him, would not avoid his policy,
if his answers were made in good faith, and the mis-
statement or omission was not wilful, but due solely to his
ignorance or failure to recollect, notwithstanding he dis-
tinctly certified that his answers were true, and agreed
that, if any concealment or untrue statement or answer be
made, the policy should be void. Fidelity Mut. Life Ass'n
v. Jeffords, 107 Fed. 402.
Same — Misrepresentations as to Age. — In an application*
made for the insurance policy, which was issued by an insur-
ance company and subsequently taken up by another com-
pany, it was stated that the insured was 53 years of age, and
that she was sound physically, and not suffering from any.
disease. The evidence showed that at the time of the ap-
plication she was over 60 years of age, and was suffering;
from cancer, which in a few months caused her death. It
was held that these representations were material to the
risk, and their falsity was unknown to the original com-
pany at the time the policy sued on was substituted for
the policy in the original company. Maddox v. Southern
Mut. Life Ins. Asso., 6 Ga. App. 681, 684, 65 S. E. 789. And
see Southern Life Ins. Co. v. Hill, 8 Ga. App. 857, 70 S-
E. 186. See generally 8 Cum. Dig. 249, 8 Enc. Dig. 803.
Misrepresentations to Examiner. — Where an applicant for
life-insurance convenants in his application that the state-
ments made to the medical examiner are true, and these
statements are made a part of the contract of insurance
and from the basis of the contract, any variation in any
of them which is material, whereby the nature or extent, or
character of the risk is changed, will void the policy,,
whether the statements are made in good faith or fraudu-
lently. Southern States Life Ins. Co. v. Morris, 24 Ga. App.
746, 102 S. E. 179.
Warranty as to TRle. — Even if the mortgage executed by
an assured is a valid and enforceable contract, a warranty
by the assured that the property was not mortgaged, when
in fact it was, does not render the policy of insurance void,
where there was no express stipulation in the policy itself
that such an untrue warranty would void it. Smyly v.
Globe, etc., Fire Ins. Co., 28 Ga. App. 776, 113 S. E. 220,
and cases cited. As to warranty generally, see § 4135, and
the notes thereto.
Policy Void Ab Initio. — Where a material statement in
an application for insurance is fraudulent, and is made to*
induce the acceptance of the risk, the policy or contract of
insurance is void ab initio. Metropolitan Life Ins. Co. v.
Shaw, 30 Ga. App. 97, 117 S. F. 106.
Necessity of Repaying Premiums. — In an action on an
insurance policy, the defense that the contract of insurance
is void because obtained by fraud practiced on the insurer
by the insured may be pleaded without repaying or offer-
ing to repay the premiums or any part thereof received by
the insurer on the policy. Columbian Nat. Life Ins. Co.
v. Mulkey, 146 Ga. 267, 91 S. F. 106. See also, Stausall v..
Columbian Nat. Life Ins. Co., 27 Ga. App. 537, 539, 109 S.
E. 297.
Parol Evidence to Show Knowledge of Insurer. — When
the agent of an insurance company omitted to insert in
a policy on a stock of general merchandise, permission to
the assured to keep kerosene oil and powder in the same
building with such stock, parol evidence was admissible to
[606 ]
2480
FIRE-INSURANCE CONTRACTS
§ 2482
iow knowledge of such keeping by the agent,
ire Dept. Ins. Co. v. Miller, 58 Ga. 421.
Mobile
§ 2480. (§ 2098.) Effect of misrepresentation. —
ny verbal or written representations of facts by
le assured to induce the acceptance of the risk,
material, must be true, or the policy is void.
I however, the party has no knowledge, but
:ates on the representation of others, bona fide,
ad so informs the insurer, the faisity of the in-
>rmation does not void the policy.
See §§ 4113, 2483. See also, notes to § 2479.
What are Material Representations. — A material repre-
mtation is one that would influence a prudent insurer in
:termining whether or not to accept the risk, or in fixing
le amount of the premium in the event of such acceptance,
mpire Life Ins. Co. v. Jones, 14 Ga. App. 647, 82 S. E. 62.
The questions presented for determination in a case as
> whether representations of facts by the assured to in-
lce the acceptance of the risk, if material, must be true
• the policy is void are: (1) Was the representation false?
) Was it made in reference to a matter material to the
sk? Sovereign Camp Woodmen of the World v. Beard,
Ga. App. 130, 105 S. E. 629.
What are Variations. — In the case of Mobile Fire In-
irance Co. v. Miller, 58 Ga. 420, it was held that a mis-
atement in an application for insurance must in some
ay change the nature, extent or character of the risk in
der to void the policy; the court in delivering the opinion
that case, after citing this section, said, "That is to say,
ly variation by which the nature, extent, or character of
e risk is changed, will constitute a breach of that cove-
mt, and will void the policy, but it is not any and every
iriation from the representations contained in the ap-
ication, that will cpnstitute a breach of the covenant of
arranty and void the policy. The variation must be such
; to change the nature or extent, or character of the risk,
order to void the policy. If the insured should state in
s application for a fire-policy, in answer to the question
i to what was his age, that he was thirty years old, when
fact he was thirty-one, it would be a variation, but not
ich a variation as would change the nature, or extent, or
laracter of the risk of the insurance company." Rosser
Georgia Home Ins. Co., 101 Ga. 716, 719, 29 S. E. 286.
Can Not Make Immaterial Matters Material. — Mere im-
aterial matters, although declared to be warranties, do
)t void the policy even though the policy declares them
be such, and under the Code the parties themselves could
)t contract to make immaterial matters material. Aetna
ife Ins. Co. v. Moore, 231 U. S. 543, 58 L. Ed. 356, 34
ip. Ct. 186.
Must Establish Materiality. — In order for an insurance
impany, defending on the ground of false statements in
ie application, to have a verdict directed, it must estab-
>h that the representations were material to the risk and
ere untrue. Aetna Life Ins. Co. v. Moore, 231 U. S. 543,
. L. Ed. 356, 34 Sup. Ct. 186. Watertown Fire Ins. Co.
Grehan, 74 Ga. 642.
Misrepresentation as to Incumberances. — Misrepresenta-
on that the property insured is not incumbered and the
)licy specifying that the statements in application are
arranties, such misrepresentation is a material warranty
id falls within the provisions of this section. Globe &
ufgers Fire Ins. Co. v. Smyly, 155 Ga. 547, 117 S. E. 819.
te S. C, 28 Ga. App. 776, 113 S. E. 220.
Misrepresentation as to M&rriage Relation. — When a man
sured his life for the benefit of a woman represented as
is wife, and the truth of the case was, that the marriage
as void by reason of the reputed wife having a former
wful husband living at the time of the second marriage,
was held that the policy is not void by reason of the II-
gality of the last marriage, unless it further appears that
ie husband and wife knew of the illegality of the marriage
t the time of issuance of the policy. Equitable Life Assur
oc. v. Paterson, 41 Ga. 338.
Misrepresentations as to Value. — Misrepresentations by
ie assured, whether fraudulent or otherwise, as to the
alue of the property insured, but which do not in any
tanner affect the risk, will not, except in case of "valued"
Dlicies, avoid a policy of insurance. Rosser v. Georgia
[ome Ins. Co., 101 Ga. 716, 29 S. E. 286.
Misstatement as to Liquor Consumed. — Where in-
ired was not an excessive drinker, and his death was
ot caused by his use of intoxicants, his misstatement of
ie kind or quantity of liquors consumed daily, or his f ail -
re to state certain facts with reference thereto not ma-
:rial to the risk, was no defense to the policy, nor ground
for voiding it, under this and the following sections. Royai
Union Mut. Life Ins. Co. v. Wynn, 177 Fed. 289.
Question of Fact. — The truth and materiality of repre-
sentations are generally questions of fact, for determina-
tion by the jury; but where all the testimony relating to a
question of fact excludes every reasonable inference but
one, the issue becomes an issue of law, for determination
by the court. Empire Life Ins. Co. v. Jones, 14 Ga. App.
647, 82 S. E. 62; Mutual Life Ins. Co. v. Bolton, 22 Ga. App.
566, 96 S. E. 422; Connecticut Mut. Life Ins. Co. v. Mul-
key, 142 Ga. 358, 82 S. E. 1054. See also Stansall v. Colum-
bian Nat., etc., Co., 27 Ga. App. 537, 109 S. E. 297; Phenix
Ins. Co. v. Fulton, 80 Ga. 224, 4 S. E. 866.
§ 2481. (§ 2099.) Concealment. — A failure to
state a material fact, if not done fraudulently,
does not void; but the willful concealment of
such a fact, which would enhance the risk, will
void the policy.
See § 4114.
Concealment of Previous Illness. — Where an applicant for
life insurance wilfully conceals from the insurer the fact
of a previous illness, such concealment will avoid the policy
if the disease was of such a character as to enhance the
risk. The fact that the insured may have died a short while
after the policy was insured, from a disease with which he
was not affected when the policy was issued, does not
conclusively show that the fact of the previous illness was
not material, within the meaning of the rule above men-
tioned. Aetna Life Ins. Co. v. Conway, 11 Ga. App. 55<,
75 S. E. 915. See notes to § 2479.
Evidence of notice to the company's agent that plaintiff
had hernia was admissible, not to establish a waiver of the
terms of the policy, but to meet the plea of fraudulent con-
cealment, and thereby prevent the avoidance of the whole
contract. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46
S. E- 678.
A representation that the applicant for insurance has
never been rejected by any company, association or agents
is material to the risk and is not true if he has withdrawn
an application at the suggestion of the medical adviser, and
with the knowledge that the company to whom the applica-
tion was made was about to reject it. Aetna Life Ins. Co
v. Moore, 231 U. S. 543, 58 L. Ed. 356, 34 Sup. Ct. 186.
Section Quoted or Applied. Empire Life Ins. Co. v.
Jones, 14 Ga. App. 647, 82 S. E. 62; Mutual Life Ins. Co.
v. Bolton, 22 Ga. App. 566, 96 S. E. 442; Rosser v. Georgia
Home Ins. Co., 101 Ga. 716, 719, 29 S. E. 286; German
American, etc., Ins. Co. v. Farley, 102 Ga. 720, 29 S. E-
615.
§ 2482. (§ 2100.) Increasing risk. — Any change
in the property, or the use to which it is ap-
plied, without the consent of the insurer, whereby
the risk is increased, voids the policy.
See § 2479. As to increase of risk in marine insurance,
see § 2523.
Increased Risk Within Discretion of Insurer. — This sec-
tion leaves within the discretion of the insurer the matter
of the effect of increase of hazard. Royal Exch. Assur. v.
Thrower, 246 Fed. 768.
Duty of Insured. — The insured is bound to ordinary dili-
gence in protecting the property from fire. Adair v. South-
ern, etc., Ins. Co., 107 Ga. 297, 33 S. E. 78. See § 2478.
And if the insured, or one to whom he has entrusted the
entire custody of the property and given full freedom in
its use, should, by doing any acts which one in the exer-
cise' of ordinary care and diligence would not do under like
circumstances, so change the use and occupancy of the
premises as to materially increase the hazard of the in-
surance, the insurance company would not be liable for a
loss directly resulting as a consequence of such increase in
the risk. Adair v. Southern, etc., Ins. Co., 107 Ga. 297, 33
S. E. 78.
Permanent Changes. — A provision in a policy of fire-in-
surance, declaring it shall be forfeited "by any change in
the use or condition of the building, including additions or
repairs, or by the erection of other building, or in any
other manner by which the degree of the risk is increased,
unless due notice is given to the company and a new
agreement is entered into," applies to such changes as are
of a permanent nature, and not to mere temporary changes
in the use and occupation of the premises. Adair v. South-
ern, etc., Ins. Co., 107 Ga. 297, 33 S. E. 78.
Temporary Use of Machine on Premises. — A mere tempo-
rary use of a machine for thrashing grain for a few hours
on the premises where the insured property is located will
not, per se, work either a forfeiture or a suspension of
[607 ]
§ 2482
FIRE-INSURANCE CONTRACTS
§ 2484
such policy. Adair v. Southern, etc., Ins. Co., 107 Ga. 297,
33 S. E- 78.
Carpenter Work in Adjoining Building.— Where one in-
sures property, and, in the policy, carpenter's trade being
carried on within the building is denominated hazardous,
and the proof is that no carpenter's work was done within
the building insured, but was being carried on, not as a
trade, but for the purpose of erecting another building, it
was held that this did not violate the conditions of the
policy and render it void. Southern Ins., etc., Co. v.
Lewis & Bros., 42 Ga. 587.
Where Premises UsecT**for Immoral Purposes. — The fact
that apartments were occupied for barrooms and other loose
and immoral purposes at the time of the loss does not affect
the policy, as substantially the same classes of tenants occu-
pied the house when insured and inspected by the agents.
Virginia Fire, etc., Co. v. Feagin Bros., 62 Ga. 515; Phenix
Ins. Co. v. Clay, 101 Ga. 331, 28 S. E. 853.
Keeping and Use of Inflammable Substance. — A recovery
may be had in case of loss, on a policy stipulating against
keeping inflammable substance, even though it should ap-
pear that such substances were in fact kept and used upon
the premises, provided it shall further appear that the
business in the conduct of which the stock of materials
insured were used is of such a character as that the use
of such inflammable substances is a necessary, usual and
customary incident to the business, and that such sub-
stances were kept only in such quantities and used only in
such manner as, in view of the subject of the insurance,
must have been in contemplation of the parties at the
time the policy was issued. Maril v. Connecticut Fire
Ins. Co., 95 Ga. 604, 23 S. E. 463.
Same — Gasoline on Premises. — If an employee of the
plaintiff had carried a can of gasoline upon the premises
for the purpose of burning the house containing the goods
insured, and it was so used, then such act would not con-
stitute the keeping, using or allowing gasoline on the
premises by the plaintiff, if it was carried there without
his knowledge and not through his complicity, directly or
indirectly. Queen Ins. Co. v. Van Giesen, 136 Ga. 741, 72
S. E. 41.
Removal of Goods. — Where the property is removed to a
different place and there burned and it does not appear
that any authorized agent of the insurer consented to the
removal, the insured is not entitled to recover on the
policy. Black v. Fidelity Phenix Fire Ins. Co., 14 Ga. App.
510, 81 S. F. 584. *And it was held in Simonton v. Liver-
pool, etc., Ins. Co., 51 Ga. 76 that no recovery could be
had where the consent was oral and not entered on the
books of the insurer.
But the consent of a fire insurance company, given,
whether in writing or in parol, by its duly authorized
agent, and acted upon by the insured, that the goods in-
sured might be moved into another building without vitiat-
ing the policy, is, if sufficiently proved, binding upon the
company notwithstanding stipulations in the policy that
"no officer, agent or other representative of this company
shall have power to waive any provisions or condition of
this policy except such as by the terms of this policy may
be the subject of agreement indorsed hereon or added
hereto." Western Assurance Co. v. Williams, 94 Ga. 128,
21 S. E. 370.
And cotton which, while stored in a particular warehouse,
is specifically covered by a policy of fire insurance does not,
until by removal from the warehouse or otherwise it loses
the protection thus afforded, come within the operation of
a "floating" policy which in express terms stipulates that
it shall not be held to "apply to or cover any cotton which,
at the time of the loss, may be covered by any more spe-
cific insurance." Macon Fire Ins. Co. v. Powell & Co., 116
Ga. 703, 43 S. E. 73.
Suspension of Policy. -^-The violation of a condition in a
policy of insurance which marks a forfeiture thereof, merely
suspends the insurance during the violation, and if such
violation is discontinued during the life of the policy, and
is non-existent at the time of the loss, the policy revives,
the insurance is restored and the insurer is liable, although
he had never consented to a violation of the conditions.
Athens Mutual Ins. Co. v. Toney, 1 Ga. App. 492, 495, 57
S. E. 1013. See for further treatment 6 Cum. Dig. 220.
Necessity of Expressing Additional Risk in Face of Policy.
—Where A insures property with B, who is the agent of
the company, and pays B an additional per cent, on the
premium on account of carpenter's work being carried on
in the completion of an adjoining building, and such fact is
not expressed in the face of the policy. It was held that
this did not ^ avoid the policy. When a building is insured
and an adjoining one has some hazardous business carried
on therein, though such fact increases the risk, it is not
necessary to express it in the face of the policy, when it is
known to the agent. Southern Ins., etc., Co. v. Lewis &
Bros., 42 Ga. 587.
Vacancy Clause. — Temporary vacancy caused by change
of tenants not a violation. Athens Mutual Ins. Co. v.
Toney, 1 Ga. App. 492, 499, 57 S. E. 1013.
Vacancy suspends but does not vitiate the policy. Athens
Mutual Ins. Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013.
Same — Knowledge of Agent. — The knowledge of vacancy
by the agent of the insurer is not waiver of a condition in
the policy as to vacancy of the premises. McAfee v. Dixie
Fire Ins. Co., 18 Ga. App. 192, 89 S. E. 181, distinguishing! I
Clay v. Phoenix Ins. Co., 97 Ga. 44, 25 S. E. 717.
§ 2483, (§ 2101.) Willful misrepresentation
Voids policy. — Willful misrepresentation by the!
assured, or his agent, as to the interest of the as-|
sured, or as to other insurance, or as to any otherjj
material inquiry made, will void the policy.
See §§ 2472, 2479, 2480, 2481 and notes thereto.
1
§ 2484. (§ 2102.) Effect of alienation. — An|
alienation of the property insured, and a transfer!
of the policy, without the consent of the insurer]:
voids it; but the ■ mere hypothecation of the
policy, or creating a lien on the property, does
not void.
See 6 Cum. Dig. 233, 6 Enc. Dig. 216.
Editor's Note. — The majority of cases decided under this
section pertain to two classes of litigation namely, en-j
cumbrance of the property upon which the policy is in-l
sured and alienation of the property. Consequently the|
following annotation is divided accordingly — decisions asj
to encumbrance being followed by decisions as to aliena-
tion. It will be noted that conveyances to secure debt are!
treated under the part of the note relating to sales, as this!
seems to be the latest classification of the courts.
Encumbering Property — Effect of Stipulations. — This sec-j
tion, when properly construed, means that the mere act inl
itself of creating a lien on the property insured does not
avoid the policy. It does not mean that the policy can
not be avoided by the creation of a lien on the property in-l
sured where there is an express stipulation in the policy
itself that such an act will void it. Johnson v. Pacificf
Fire Ins. Co., 19 Ga. App. 675, 91 S. E. 1067.
A requirement that "if the subject of insurance be per-
sonal property and be or become incumbered by a chattel]
mortgage" will render the policy void, is a reasonable re-
quirement and when the insured accepts a policy with this!
condition in it and commits a breach of the condition, hej
should not be allowed to recover in case the property isj
destroyed by fire. Alston ■ v. Phenix Ins. Co., 100 Ga. 287,
27 S. E. 981. See also Hartford Fire Ins. Co. v. I,iddell Co.,
130 Ga. 8, 60 S. E. 104; Johnson v. Pacific Fire Ins. Co.,
19 Ga. App. 675, 91 S. E. 1067, and cases cited.
Same — Mortgage Executed by One Partner to Another.
— Where a policy of fire insurance covering personal prop-
erty was issued to a partnership, the fact that one member
thereof subsequently executed and delivered to another
member a mortgage on such property did not constitute!
such an incumbrance as was contemplated by a stipulation
in the policy to the effect that it should be void "if the
subject of insurance be personal property and be or be-j
come incumbered by a chattel mortgage." Alston v. J
Phenix Ins. Co., 100 Ga. 287, 27 S. E. 981.
Sale of Property. — Where property, covered by an in-
surance policy, is conveyed, prior to the execution of the
policy, the policy executed to the former owner is void.
Springfield, etc., Co. v. Bottling Co., 22 Ga. App. 503, 96
S. E. 332. And if subsequently to the issuance of the
policy a one-half interest is conveyed, this constitutes such
a change in interest as will breach a stipulation, con-
tained in the policy, that the interest of insured be un-
conditional and sole. Watts v. Phoenix Ins. Co., 134 Ga.j
716, 68 S. E. 478.
Same — Conveyance to Secure Debt. — Where a policy of
insurance contains a condition that the policy shall be void
if the property should be sold, or the title or possession of
the property, or any part thereof, transferred or changed,
and the holder of the policy conveys the property to a
debtor, under § 3306, this is an alienation of the property
and the holder of the policy can not maintain an action
thereon, in case of loss. Phoenix Insurance Co. v. As-
berry, 95 Ga. 792, 22 S. E. 717; Athens Mutual Ins. Co. V.
Evans, 132 Ga. 703, 64 S. E. 993.
Same — Same — Contrary Hold'ng in Federal Court. — Where
the policy stipulates as follows: "If the property be sold or
transferred, or any changes takes place in title or pos-
[608]
2484
FIRE-INSURANCE CONTRACTS
§ 2489
ission, the policy shall be void," it was held that, in the
bsence of precise stipulations identifying and forbidding the
•ansaction, a deed pledging the property to secure a debt
Dupled with retention of possession by the maker, and the
ight to sell in usual course of his business, and to redeem
ntirely by payment, is not such change of title as will
void the insurance. Nussbaum v. Northern Ins. Co., 37
ed. 524.
Same— Same— Same— Editor's Note.— The latter of these
ises (Nussbaum v. Northern Ins. Co., supra) is not
;concilable with the cases above cited. The latter case is
•om the federal court and is not binding upon the Su-
reme Court. In that case Judge Speer based his decision,
seems, chiefly upon the ruling in Virginia Fire, etc., Co.
Feagin Bros., 62 Ga. 516, where it was held that stipula-
!ons in a policy, that "in case of assignment, before or
fter loss, whether of the whole policy or of any interest
i it, or of any sale, transfer or change of title in the
roperty insured by this company, or of any undivided in-
srest therein, or the entry of the foreclosure of a mort-
age, or the levy of an attachment or execution, or pos-
ession by another of the subject insured, without the con-
ent of the company indorsed thereon, this insurance shall
nmediately cease, was not violated by a deed to secure a
:ote for a specific sum with a provision that in case of
efault in payment the trustee to whom deeds was made
light sell the property and apply the proceeds to the note
nd then account to the insured for the balance, and the
dss could be collected notwithstanding said deed, it being
he opinion of this court that the deed is not such "an
lienation of the property insured" as, under this section,
o render the policy void, but rather the "creation of a lien
hereon." In this case the conveyance was made to a
rustee to secure a debt; but where the deed is given di-
ect to secure a debt, although bond for title is executed to
he grantor to reconvey upon payment of the debt this con-
-eys title to the grantee. In the opinion of the editor the
lecisions of Phoenix 'Ins. Co. v. Ashbury, supra and Athens
lutual Ins. Co. v. Evans, 132 Ga. 703 are sound in princi-
ile and that such a conveyance is not the mere creation of
'. lien upon the property, it is something more, it is an
ilienation.
Same — Policy Ipso Facto Void. — When a policy of fire-
nsurance stipulated that it should cease to be of force in
ase of "a change of title or ownership of the property in-
ured," a conveyance by the insured to another rendered
he policy ipso facto void. Farmers Mut. Ins. Asso. v.
5rice, 112 Ga. 264, 37 S. E, 427.
Same — Mode of Transfer.— Where in a policy it is stipu-
ated that the by-laws of the association by which the same
vas issued should be a part of the contract, and such by-
aws specifically prescribed the manner in which all policies
ihould be transferred, an attempted transfer of the policy
n another and entirely different manner was ineffectual.
?armers Mut. Ins. Asso. v. Price, 112 Ga. 264, 37 S. E. 427.
Where a policy of insurance stipulates that the same
shall be void in the event of a transfer of the property
vithout the assent of the insurance company, a promise by
:he company or its agents to ratify such transfer upon
:ertain conditions imposed upon the transferee, which were
lever complied with, does not amount to a waiver of the
orfeiture. Hubert v. Southern, etc., Co., 103 Ga. 294, 29
3. E- 938.
Executing Bond for Title. — When the insured without the
:onsent of the insurance company, executed to a third per-
son a bond for title to the property, received a part of the
Jurchase-price and delivered possession, a change of in-
:erest in the subject of the insurance was effected, and the
Jolicy became void. Widincamp v. Phenix Ins. Co., 4 Ga.
jpp. 759, 62 S. E. 478.
Change of Title by Death of Owner. — The passing of title
by the death of the insured (as in this case the wife) is
not such a change of title as will void a fire-insurance
policy which contains a provision that "if at any time there
shall be a change of title or ownership of the within-de-
scribed property, the obligations of the insured and the as-
sociation shall at once cease." Peoples, etc., Fire Asso.
v. Wyatt. 31 Ga. App. 684, 121 S. E. 708.
Estoppel. — If there was any breach of the stipulation in
the policy prohibiting any change in the title, interest, or
possession of the assured, the insurance company was es-
topped from claiming a forfeiture on that ground, by rea-
son of the fact that its adjuster, with full knowledge of the
facts giving rise to such claim of forfeiture, demanded of
and caused the assured to incur trouble and expense in
furnishing an estimate of a builder showing the value of
the nroperty insured and destroved bv fire. Scottish Union
& Nat. Ins. Co. v. Colvard, 135 Ga. 188, 68 S. E. 1097.
§ 2485. (§ 2103.) Transfer to one of several. — A
policy issuing to several may be transferred to
one of the assured without the consent of the in-
surer.
§ 2486. (§ 2104.) Partial sale.— A partial sale of
property insured voids the policy only pro tanto.
A sale not fully executed, and possession remain-
ing with the assured, does not void.
See § 2484 and note thereto.
§ 2487. (§ 2105.) Transfer after loss.— After the
loss occurs, a sale of the property and transfer of
the policy does not affect the liability of the in-
surer, but the assignee may recover.
Consent Not Necessary. — An assignment after loss is valid
without the consent of the insurer, although the written
transfer of the policy purports by its terms to be subject to
the consent of the insurer. Georgia Co- Operative Fire
Ass'n v. Borchardt & Co., 123 Ga. 181, 51 S. E- 429.
Assignment to Creditor.— The holder of a fire insurance
policy, after a claim against the company has accrued un-
der it may bona fide assign in writing an interest in the
same to a creditor to the extent of such creditor's debt.
Daniels v. Meinhard Bros. & Co., 53 Ga. 359.
Assignee Not Bound by Adjustment Made by Assignor.
—In a suit upon a fire-insurance policy, brought by an
assignee of such policy against the company which issued
it, the defendant can not be held bound by an adjustment
of a loss sustained under the policy, made after the as-
signment, between the insurer and the assignor of the
policy, unless in such adjustment the assignor acted as the
authorized agent of the assignee. Georgia Co-Operative
Fire Ass'n v. Borchardt & Co., 123 Ga. 181, 51 S. E. 429.
§ 2488. (§ 2106.) Or by operation of law. — A
transfer of the property or policy by operation of
law, or under the order of the court, will confer
on the assignee all the rights of the assured.
Transfer before Loss — Where the owner of property con-
veys it and assigns the insurance, with the consent of the
insurer, and prior to a loss the transfer is declared fraudu-
lent, the rights in the policy are not revested in the owner
by virtue of the decree. This section properly applies to
a transfer after loss. First Nat. Bank v. Colonial, etc.,
Co., 160 Ga. 166, 127 S. E. 455.
§ 2489. (§ 2107.) Second insurance. — A second
insurance on the same property, unless by con-
sent of the insurer, voids his policy.
See § 2544.
For full treatment of re-insurance see 6 Cum. Dig. 241, 6
Enc. Dig. 222.
Right to Fix Maximum. — One of the most important ele-
ments that enter into a contract of insurance is the moral
risk, and an insurer has the right to protect himself by
fixing a maximum amount of insurance, beyond which the
insured will not be allowed to procure protection, in order
to compel the insured himself to carry part of the risk, and,
by thus assuming the liability, to diminish the risk of the
insurer. Johnson v. Sun Fire Ins. Co., 3 Ga. App. 430, 432,
60 S. E- 118.
Additional Amounts Permitted. — Where an insurance
company issues a policy of fire insurance and by endorse-
ment thereon permits other insurance in a specified amount,
and afterwards itself issues another policy in favor of the
same person on the same risk and grants permission for a
different amount of additional concurrent insurance, and
each policy contains the usual provision in present general
use against additional insurance, unless specially permitted,
the insured can not, without avoiding the policies, procure
a total insurance in excess of the largest amount permitted
under either of them. The permits are not cumulative.
DeLoach & Co. v. Aetna Ins. Co., 4 Ga. App. 746, 62 S.
E. 473.
Additional Insurance Covering Furniture Only. — A policy
of fire-insurance covering a house and furniture, and con-
taining a stipulation rendering it void if the insured shall
without the consent of the company procure additional in-
surance on the property covered in whole or in part by
such policy, becomes void if the insured, without such con-
sent, obtains from another company a policy insuring the
furniture only. Phenix Ins. Co. v. Gray, 107 Ga. 110, 32
S. E. 948.
Additional Insurance by Holder of Bond for Title. — The
taking out of another policy by the holder of bond for title
Ga. Code— 20
[609 ]
§ 2489
FIRE-INSURANCE CONTRACTS
§ 2490
Hartford
operates to avoid the original policy. Hughes v
Fire Ins. Co., 144 Ga. 740, 87 S. E. 1042.
Knowledge of Agent. — Although a policy of fire-insurance
stipulated that "the existence or subsequent procurement
of other insurance on the property hereby insured" would,
"unless specially agreed to in writing in or upon this
policy," avoid the contract embraced therein, yet if the
agent of the company at the time of issuing the policy in
fact knew of the existence of prior insurance upon the
property, the policy was not void because the company's
consent to the prior insurance was not expressed in writing
in or upon the policy as required by the stipulation above
mentioned. Swain v. Macon Fire Ins. Co., 102 Ga. 96, 29
S. Fy. 147. For other cases, see 6 Enc. Dig. 223.
But an insurance company will not be estopped from set-
ting up the defense that the policy was void because the
insured had taken out additional insurance without consent
by reason of the facts, that the agent who issued the policies
knew, for about ten days prior to the fire which destroyed
the goods, that the insured had, subsequently to the is-
suance of the policies sued on, procured such excessive ad-
ditional insurance, and failed during that time to notify the
insured that the policies had been forfeited, and also failed
to return the unearned portion of the premiums, but, by
oral statements, led the insured to believe that the policies
were then in force, and urged the insured to allow him to
write other insurance on the goods. Beasley v. Phoenix
Ins. Co., 140 Ga. 126, 78 S. E. 722, and cases there cited.
See also, Columbian National Life Ins. Co. v. Mulkey, 146
Ga. 267, 91 S. E. 106.
Knowledge coming to an insurance agent after the con-
summation of the contract does not operate to create a
waiver, but knowledge prior thereto does so operate.
Niagara Fire Ins. Co. v. Williams, 1 Ga. App. 603, 606, 57
S. E. 1018.
The testimony that the agent of the insurance company
was of the opinion and stated that the insured could take
out more insurance does not effect the rights of the com-
pany. Johnson v. Sun Fire Ins. Co., 3 Ga. App. 430, 60 S.
E. 118.
Mere oral permission to the insured by the agent who is-
sued the policy, to take out additional insurance, was not
binding upon the company, and did not estop it from set-
ting up, as a defense to an action thereon, that the insured,
in violation of the terms and conditions of the policy, had
in fact taken out additional insurance on property covered
by the same. Lippman v. Aetna Ins. Co., 108 Ga. 391, 33
S. E. 897. Distinguishing Carrugi v. Atlantic Fire Ins. Co.,
40 Ga. 135; City Fire Ins. Co. v. Carrugi, 41 Ga. 660.
Effect of Notice of Intent to Get Additional Insurance.
— Consent to additional insurance need not be expressed in
writing or indorsed upon the face of the policy, notwith-
standing such a stipulation as that contained in this policy.
Notice of an intention to get the additional insurance and
consent thereto by the agent of the company is, in the
absence of fraud, sufficient to justify the insured in pro-
curing such insurance. The insured, however, must see
to it that the person to whom the notice is given or whose
consent he relies upon, is authorized to represent the com-
pany whose policy he holds. Greenwich Ins. Co. v. Sabot-
nick, 91 Ga. 717, 719, 17 S. E. 1026.
But notice to a former agent whose authority has been
revoked, although he may have been the person who issued
the policy, will not be sufficient. The insured can not be
protected in his neglect to inquire as to what person has au-
thority in the matter. "He is bound at his peril to give
notice to one authorized to receive it." Greenwich Ins.
Co. v. Sabotnick, 91 Ga. 717, 719, 17 S. E. 1026.
Same — Sufficiency of Notice. — Notice which is sufficient
to excite attention and put one on his guard, and call for in-
quiry, is notice of everything to which such inquiry might
have been let, and this is applicable to the circumstances
under which a waiver of the conditions of an insurance
policy may arise. Insurance Co. v. DeLoach & Co., 3 Ga.
App. 807, 808, 61 S. E. 406.
First Policy Void Though Second Voidable. — A second
insurance on the same property, without the consent of
the insurer voids his policy. Even though the second in-
surance, valid upon its face, is voidable by the second com-
pany on the ground of the failure of the insured to give it
notice, at the time the policy was procured, of a prior in-
surance of the same property in another company. Lackey
v. Georgia Home Ins. Co., 42 Ga. 456.
Insufficient Explanation. — The explanation of the insured,
by which he sought to avoid the effect of the insurance of
an intermediary policy of fire insurance on the same prop-
erty in another company without the consent of the de-
fendant, was not tenable under the evidence, which justi-
fied the direction of a verdict for the defendant, under this
section.
515.
Dover v. Home Ins. Co., 21 Ga. App. 40, 93 S. E-
§ 2490. (§ 2108.) Prescribing regulations. —
Every insurer has a right to prescribe regulations
as to notice and preliminary proof of loss, which
must be substantially complied with by the as?
sured: Provided, the same are made known at
the time of the insurance, and are not materially
changed during the existence of the contract. An
absolute refusal to pay waives a compliance with
these preliminaries.
For full treatment of loss and adjustment, see 6 Cum.
Dig. 245, 6 Enc. Dig. 225.
Section Not Exhaustive.— It is hardly to be presumed
that the legislature, in adopting this section, intended that
what is therein contained should be exhaustive of the law
on that subject. What is there said is controlling so far as
it goes,, but a rule deducible from the general principles of
the law of insurance, not necessarily in conflict with these
provisions, would still be of force notwithstanding the adop-
tion of the code. The section simply says that an absolute
refusal to pay waives, certain things. There is nothing in
the language of the section indicating that it was the in-
tention of the legislature that such a refusal should not
waive other things. At the time the code was adopted
(1863) it was probably the well- settled law, that an abso-
lute refusal to pay amounted to a waiver of notice and pre-
liminary proofs of loss, but the effect of such a refusal upon
other stipulations was not so well settled, and therefore the
General Assembly left the same to be determined by the
courts upon principle. Continental Ins. Co. v. Wickharn,
110 Ga. 129, 136, 35 S. E. 287.
Purpose of Requiring Proof of Loss. — Proofs of loss are
primarily intended for the purpose of securing an adjust-
ment between the insured and the company, and it is in
accordance with sound public policy that our law recog-
nizes the right of insurance companies to make such re-
quirements in their contracts. Moore v. Dixie Fire Ins.
Co., 19 Ga. App. 800, 803, 92 S. E. 302.
To Whom Made. — If proof of loss be made to a general
adjuster of a foreign insurance company who is engaged in
the adjustment of this particular loss, it is sufficient, with-
out also making such proofs to the "home office." Mer-
chants', etc., Ins. Co. v. Vining & Bro., 67 Ga. 661. And
see Williams v. Atlas Assur. Co., 22 Ga. App. 661, 97 S.
E. 91.
It not appearing from the allegations of the petition, that
the person to whom an affidavit as to the loss by fire was
delivered was an agent authorized to receive proof of loss
in behalf of the defendant, it was not made to appear that
the stipulation was complied with. Bailey v. First Nat.
Fire Ins. Co., 18 Ga. App. 213, 89 S. E. 80.
But a petition showing that the plaintiff notified the de-
fendant association of his loss immediately following the
fire, and that payment of the loss was then refused, and
that later the defendant recognized this notice and acted
upon it, but continued to refuse to pay the plaintiff any
sum whatever or to make any assessment to cover said
losses, the judge erred in sustaining a demurrer to the
petition on the ground that it did not show "what officer,
agent, or employee of the company was notified of plain-
tiff's losses." Coffee v. South Georgia Farmers Fire Ins.
Ass'n, 29 Ga. App. 685, 116 S. E. 653.
Who May Make — Mortgagee. — If the mortgagee would not
have the right in all cases to furnish the proof he certainly
would in a case in which the mortgagor refused; but in
every case, unless waived by the underwriter it must be
furnished by one or the other. Southern Home, etc., Ass'ni
v. Home Ins. Co., 94 Ga. 167, 21 S. E. 375. See also,
Southern Home, etc., Ass'n v. Home Ins. Co., 99 Ga. 65, 241
S. E. 396.
Condition Precedent to Recovery. — Stipulations in a policy!
of insurance to the effect that no suit or action for the
recovery of any claim by virtue of the policy should be
sustainable in any court of law or equity unless such suit!
or action should be commenced within twelve months aftcf
loss of the property insured, that a particular statement of
the loss should be presented to the company by the insured
at its office as soon thereafter as possible, and that pay-
ment should be made sixty days after due notice and
satisfactory proofs of loss had been received at the com-
pany's office, were conditions precedent to a recovery on
such policy. Graham v. Niagara Fire Ins. Co., 106 Ga.
840, 32 S. E. 579.
And in Southern Home, etc., Ass'n v. Home Ins. Co., 94
Ga. 167, 21 S. E. 375, it was also held that a stipulation in
a fire insurance policy that a . loss by fire should at once
[610]
§ 2490
FIRE-INSURANCE CONTRACTS
§ 2490
be made known to the company was a condition precedent
to payment of the loss.
Same — Where No Penalty Prescribed for Failure to
Furnish. — If a policy of insurance provides that notice and
proofs of loss are to be furnished within a certain time
after loss has occurred, but does not impose a forfeiture for
failure to furnish them within the time prescribed, and does
impose forfeiture for a failure to comply with other pro-
visions of the contract, the insured may, it is held, main-
tain an action, though he does not furnish proofs within the
time designated, provided he does furnish them at some
time prior to commencing the action upon the policy.
Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S. E- 821.
Formal Proof.— The mere fact that the insured personally
notified the agent of the company which issued the policy
of the fire and the agent visited the scene of the fire, and
had full knowledge of the same, would not dispense with
the necessity of making formal proofs of loss as provided
in the policy. Styles v. American Home Ins. Co., 146 Ga.
92, 90 S. E- 718, and this rule is not affected by the so-
sailed "New York Standard Mortgagee Clause." Southern
Home, etc., Ass'n v. Home Ins. Co., 94 Ga. 167, 21 S. 1$.
375. See Southern Home, etc., Asso. v. Home Ins. Co., 99
Ga. 65, 24 S. E. 396.
Effect of Failure to Make.— It has often been held, and
may now be considered as settled law, that if there is an
express stipulation in a policy of fire insurance that the
furnishing of proofs of loss within a specified time shall be
I condition precedent to a recovery, or that a failure to
submit the proofs within the time limited in the policy shall
forfeit the same, such failure on the part of the insured
will be fatal to his right to recover. Southern Fire Ins.
Co. v. Knight, 111 Ga. 622, 36 S. E. 821. See 6 Enc. Dig.
226.
Time of Furnishing Proofs of Loss. — "A reasonable re-
quirement as to the time in which such proof of loss must
be made has been recognized by our Supreme Court in the
cases of Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36
S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216; Harp v. Fire-
man's Fund Ins. Co., 130 Ga. 726, 61 S. E. 704." Moore v.
Dixie Fire Ins. Co., 19 Ga. App. 800, 803, 92 S. E. 302.
A requirement that proofs of loss must be furnished "as
soon as possible" after loss means that they must be pre-
sented within a reasonable time, having due regard to ail
the circumstances. What is a reasonable time is generally
a question for the jury. Great American Co-Operative Fire
Ass'n. v. Jenkins, 11 Ga. App. 784, 76 S. E. 159. See also,
American Ins. Co. v. Peebles & Co., 5 Ga. App. 731, 64 S.
E- 304.
An amendment to the effect that the insurance company
absolutely declined to pay the loss stipulated for by the
policy, and had thereby waived the preliminary proof pro-
vided for, en general demurrer to the declaration as
amended, will be held to mean that the absolute refusal
to pay was within the sixty days limited for such prelimi-
nary proof, as no subsequent refusal would work such a
waiver, and the demurrer was properly overruled. Aetna
Ins. Co. v. Sparks, 62 Ga. 187.
Waiver — Refusal to Pay Loss. — An absolute refusal by
the insurer to pay, made before the expiration of the rea-
sonable time within which the insured must furnish proofs
of loss will be a waiver thereof, but such refusal made af-
ter such reasonable time has expired will not be a waiver
of such proof. Harp v. Fireman's Fund Ins. Co., 130 Ga.
726, 61 S. E- 704; National Life Ins. Co. v. Jackson, 18 Ga.
App. 494, 89 S. E. 633. See 6 Cum. Dig. 246, 6 Enc. Dig.
227.
Under the evidence submitted, it was a question for the
jury whether tne insurer had absolutely refused to pay the
loss under the policy of fire insurance or had made a bona
fide attempt to adjust it. Moore v. Dixie Fire Ins. Co., 19
Ga. App. 800, 92 S. E. 302.
Same — Refusal to Settle during Pendency of Garnishment.
— A refusal by an insurer to settle with the insured or to
fix the amount of liability, if any, during the pendency of
garnishments served on the insurer, would waive proofs of
loss during that time. Merchants', etc., Ins. Co. v. Vin-
ing & Bro., 68 Ga. 197.
Same — Entry into Arbitration. — Though a fire insurance
policy may stipulate that the insured shall furnish proofs
of loss, yet if it also stipulates that in a certain contingency
no action shall be brought upon the policy until after an
award fixing the amount of the loss or damage, the in-
surance company will be held to have waived such proofs
of loss, if, without receiving the same, it- nevertheless en-
ters with the insured into an arbitration for the purpose of
ascertaining the amount of the loss. Southern Mutual
Ins. Co. v. Turnley, 100 Ga. 296, 27 S. E. 975.
Same — Same — Valid Objection. — A valid objection to the
payment of a loss on a policy of insurance is not a waiver
of all other objections, if the plaintiff go into equity to
avoid the effect of that objection at law. Brown v. Savan-
nah Mut. Ins. Co., 24 Ga. 97.
Same — Same — Sufficiency of Evidence. — The evidence was
sufficient to show a demand by the plaintiff upon the com-
pany for the payment of the death loss, and a refusal to
pay by the company. National Life Ins. Co. v. Jackson,
18 Ga. App. 494, 89 S. E. 633.
Same — Refusal by Agent to Pay Loss. — An agent's notice
of refusal to pay the loss would not bind the company as a
waiver on its behalf of the contractual duty of furnishing
the proofs of loss called for by the terms of the contract of
insurance. Johnson v. Aetna Ins. Co., 123 Ga. 404, 409, 51
S. E- 539.
However, a refusal to pay anything upon a policy of fire-
insurance, if made by an authorized agent of the insurer,
is a waiver of a stipulation in the policy that the loss
thereunder, "shall not become payable until sixty days af-
ter the notice, ascertainment, estimate, and satisfactory
proof of the loss" have been received by the insurer. There
was in the present case sufficient evidence to show that the
defendant's agent had authority to represent it in determin-
ing whether or not the policy should be paid. Continental
Insurance Co. v. Wickham, 110 Ga. 129, 35 S. E- 287; Wil-
liams v. Atlas Assur. Co., 22 Ga. App. 661, 97 S. E. 91.
But to authorize the refusal of the agent to pay as
operating as waiver the proofs of loss must be furnished
within the time stipulated, as a subsequent refusal to pay
would not be a waiver. See Phenix Ins. Co. v. Searles, 100
Ga. 97, 27 S. E. 779; Southern Fire Ins. Co. v. Knight, 111
Ga. 622, 36 S. E. 821.
Same — Offer to Pay Must Be Approximate Loss. — It was
held in Great American Co-Operative Fire Ass'n. v. Jenk-
ins, 11 Ga. App. 784, 76 S. E. 159, that "unless there is a
bona fide attempt by an insurer to adjust a loss under a
policy of fire insurance, by an offer to pay a sum approxi-
mating the loss sustained, there is an 'absolute refusal to
pay,' within the meaning of this section. Moore v. Dixie
Fire Ins. Co., 19 Ga. App. 800, 805, 92 S. E. 302.
Thus where the insured suffered a loss of $300 and the
company, with knowledge of this fact, offered only $60, this
was such an absolute refusal to pay as waived strict com-
pliance with the terms of the policy in reference to the
character of the proofs to be furnished. Great American
Co-Operative Fire Ass'n. v. Jenkins, 11 Ga. App. 784, 786,
76 S. E. 159.
Same — Failure to Demand Appraisement. — Failure of an
insurer to demand an appraisement is a waiver of the re-
quirement in a policy of fire insurance that suit can be
brought only within a specified time after an award by
appraisers. Great American Co-Operative Fire Ass'n. v.
Jenkins, 11 Ga. App. 784, 76 S. E. 159.
Same — Retention of Proofs of Loss. — The reception and
retention by the insurer, without objection, of proofs of
loss is a waiver of the right to set up, in defense to a suit
for the loss, that the proofs furnished were not in strict
compliance with the requirements of the policy. Great
American Co-Operative Fire Ass'n. v. Jenkins, 11 Ga. Aop.
784, 76 S. E. 159.
Same — Where Plaintiff Alleges Compliance. — Where the
plaintiff alleges his compliance with the terms of the policy,
instead of a reason for a noncompliance, and proceeds to
trial and verdict without amending, he is "shut into 'he
case which he makes," and although a demand is alleged
to have been made more than sixty days before the filing
of the suit, and it is alleged that the company "has re-
fused to pay," this must be construed with the other aver
ments, which distinctly disclose that the action is founded,
not on a waiver by the insurer, but upon a compliance bv
the assured with the provisions of the policy. New Zealand
Fire Ins. Co. v. Brewer, 29 Ga. App. 773, 116 S. E. 922.
Same — Oral Proof. — While the mere act of furnishing oral
information to an adjuster as to the fact that a fire had
occurred, together with a written list or memorandum of
the goods alleged to have been destroyed by the fire, would
not, without more, dispense with compliance with the
stipulations as to proofs of loss, yet where the insured,
within the time allowed, in good faith endeavors thus to
comply with the requirements of the policy in regard to
proofs of loss, by giving such notice thereof, and furnishing
to the authorized adjuster of the insurance company such
written list or memorandum of the goods alleged to have
been destroyed, and the company's agent accepts as suffi-
cient such oral and written notice as being in compliance
with the requirements of the policy, and the company makes
no objection thereto, the insurer will be estopped from de-
nying literal compliance with the terms of the policy rel-
ative to such proofs. Williams v. Atlas Assur. Co., 22 Ga.
Apo. 661, 97 S. E. 91.
Where a policy of fire insurance, in addition to the stipu-
[611]
§ 2491
FIRE AND CASUALTY-INSURANCE COMPANIES
§ 2495(1)
lation, provides that the insured shall, within a named
period after the fire, furnish to the insurer certain speci-
fied proofs of loss, signed and sworn to, then even an agent
of the company whose duty it is to ascertain and determine
its liability under the policy has no authority to dispense
with such proof on the part of the insured by a mere verbal
waiver of such contractual requirement. Williams v. Atlas
Assur. Co., 22 Ga. App. 661, 97 S. E. 91.
Pleading.— See Stanford v. Aetna Ins. Co., 32 Ga. App. 9,
123 S. E- 621.
SECTION 11.
Fire and Casualty-Insurance Companies.
§ 2491. Regulating business of fire and casu-
alty-insurance companies, — Fire-insurance com-
panies not incorporated by the laws of the State
of Georgia, but legally authorized to do business
in this State through regularly commissioned and
licensed agents located in this State, shall not
make contracts of fire-insurance on property
herein, save through agents of such companies
regularly commissioned and licensed to write
policies of insurance in Georgia: Provided, how-
ever, that this section shall not apply to property
of railroad companies and other common car-
riers. Accident-liability or casualty-insurance
companies not incorporated by the laws of the
State of Georgia, but legally authorized to do
business in this State through regularly commis-
sioned and licensed agents located in this State,
shall not issue a policy of accident-liability or
vcasualty-insurance to any person, or corporation,
resident in said State, save through agents of
such companies regularly commissioned and li-
censed to write policies of accident-liability or
casualty-insurance in Georgia. Acts 1896, p. 61;
1901, p. 74.
For full treatment of fire insurance companies generally,
see 6 Cum. Dig. 218, 6 Enc. Dig. 207. For full treatment of
accident and casualty insurance companies generally, see 1
Cum. Dig. 60, 1 Enc. Dig. 57.
As to definition of insurance agent, see § 2443. As to
penalty on agents of unauthorized companies, see § 2444.
As to licenses to agents of assessment companies, see a
2456. As to tax required of local insurance agents, see §
935. As to tax required of traveling insurance agents, see
§ 936. As to tax required of assessment, industrial or sick
benefit agents, see § 937.
§ 2492. Affidavit of president or chief officer. —
Before issuing certificate of license to any fire,
accident-liability, or casualty-insurance company
to transact the 'business of fire, accident-liability,
or casualty-insurance in this State, the insurance
commissioner shall require, in addition to require-
ments alreadv provided for by law, that such fire,
accident-liability, or casualty-insurance company
shall file with him the affidavit of its president, or
other chief officer, that it has not violated any of
the provisions of this section for the space of
twelve months last past, and that they accept the
terms and obligations of this section as a part of
the consideration of their license.
§ 2493. Investigation of complaint of violations
of law. — Complaint being filed by any citizen of
this State that a company authorized to do busi-
ness in this State has violated any of the provi-
sions of this section, the comptroller-general shall
diligently investigate the matter, and if necessary
examine, by himself or his accredited representa-
tive at the head offices located in the United
States of America, and also such other offices or
agents of such companies as may be deemed
proper, all books, records, and papers of the same,
and also the officers thereof under oath as to
such alleged violation or violations: Provided,
that before making such examinations the comp-
troller-general shall require the party making
complaint to file with him a good and sufficient
bond to cover any expense or cost that may be
necessary in making such examination; and in
the event that the insurance company be found
not guilty of a violation of this section, then said
bond shall be responsible for all the expense in-
curred by reason of said investigation. But
should the company be found guilty of a viola-
tion of this law, then said company shall be re-
sponsible for the expense thereof.
§ 2494. Forfeiture of right to do business. — Any
fire, accident-liability, or casualty-insurance com-
pany violating any provisions of this section, or
refusing to submit to the aforesaid examination
when required, shall forfeit the right to do busi-
ness in this State for the next twelve months
thereafter, and the insurance commissioner shall
immediately revoke the license already issued to
said company to do business in this State.
§ 2495. Failure to pay expenses of examina-
tion.— If any such company shall fail or refuse to
pay such expense of examination upon the pres-
entation of a bill therefor by the comptroller-gen-
eral, the comptroller-general may issue his fi. fa.
against such company therefor, to (be collected
out of the property of the company or its deposit
with the State treasurer, in the same manner as
judgments against insurance companies not
chartered by this State, but doing business here-
in, are collected. If any company disputes the
amount of such bill and fi. fa., it may contest such
amount and its liability therefor by affidavit of il-
legality returnable to the superior court of Fulton
county, in the same manner as comptroller-gener-
al's executions for railroad county taxes can be
contested.
§ 2495(1). Reserve for outstanding losses. — The
reserve for compensation and liability insurance re-
quired by law of domestic insurance companies
shall be computed according to the provisions of
the following paragraphs:
The reserve for outstanding losses under in-
surance against loss or damages from accident to
or injuries suffered by an employee or other person
and for which the insured is liable shall be com-
puted as follows:
(1) For all liability suits being defended under
policies written more than
(a) Ten years prior to the date as of which the
statement is made, one thousand five hundred
dollars for each suit.
(b) Five and less than ten years prior to the date
as of which the statement is made, one thousand
dollars for each suit.
(c) Three and less than five years prior to the
date as of which the statement is made, eight hun-
dred and fifty dollars for each suit.
(2) For all liability policies written during the
three years immediately preceding the date as of
which the statement is made, such reserve shall be
sixty per centum of the earned liability premiums
of each of such three years less all loss and loss ex-
pense payments made under liability policies writ-
[ 612 ]
§ 2495(2)
FIRE AND CASUALTY-INSURANCE COMPANIES
§ 2495(4)
ten in the corresponding years; but in any event,
such reserve shall, for the first of such three years,
be not less than seven hundred and fifty dollars,
for each outstanding liability suit on said year's
policies.
(3) For all compensation claims under policies
written more than three years prior to the date as
of which the statement is made, the present values
at four per centum interest of the determined and
estimated future payments.
(4) For all compensation claims under policies
written the three years immediately preceding the
date as of which the statement is made, such re-
serve shall be sixty-five per centum of the earned
compensation premiums of each of such three
years, less all loss and loss expense payments made
in connection with such claims under policies writ-
ten in the corresponding years; but in any event in
the case of the first year of -any such three-year
period such reserve shall not be less than the
present value at four per centum interest of the
determined and the estimated unpaid compensation
claims under policies written during such year.
Acts 1920, pp. Ill, 113.
§ 2495(2). "Earned premiums"; "compensa-
tion"; "loss payments" and "loss expense pay-
ments" defined. — The term "*earned premiums,"
as used herein shall include gross premiums
charged on all policies written, including all
determined excess and additional premiums, less
return premiums, other than premiums returned
to policy holders as dividends, and less rein-
surance premiums and premiums on policies can-
celled, and less unearned premiums on policies in
force. But any participating company which has
charged in its premiums a loading solely of divi-
dends shall not be required to include such load-
ing in its earned premiums, provided a statement
of the amount of such loading has been filed and
approved by the Insurance Commissioner.
The term compensation as used in this Act,
shall relate to all insurances effected by virtue of
statutes providing compensation to employees for
personal injuries irrespective of fault of the
employer. The term "liability" shall relate to all
insurance except compensation insurance against
loss or damage from accident to or injuries
suffered by an employee or other person and for
which the insured is liable.
The terms "loss payments" and "loss expense
payments" as herein used shall include all pay-
ments to claimants, including payments for
medical and surgical attendance, legal expenses,
salaries and expenses of investigators, adjusters,
and field men, rents, stationery, telegraph and
telephone charges, postage, salaries and expenses
of office employees, home office expenses, and all
other payments made on account of claims,
whether such payments shall be allocated to
specific claims or unallocated. Acts 1920, pp. Ill,
113.
§ 2495(3). Distribution of unallocated liability
loss expenses payments; unallocated compensa-
tion loss payments; additional reserves. — All un-
allocated liability loss expense payments made in
a given calendar year subsequent to the first four
years in which an insurer has been issuing liability
policies, shall be distributed as follows: Thirty-
five per centum shall be charged to the policies
written in that year, forty per centum to the poli-
cies written in the preceding year, ten per centum
to the policies written in the second preceding
year, ten per centum to the policies written in the
third preceding year and five per centum to the
policies written in the fourth year preceding, and
such payments made in each of the first four
calendar years in which an insurer issued liability
policies shall be distributed as follows: In the first
calendar year one hundred per centum shall be
charged to the policies written in that year, in the
second calendar year fifty per centum shall be
charged to the policies written in that year and
fifty per centum to the policies written in the pre-
ceding year, in the third year forty per centum
shall be charged to the policies written in that
year, forty per centum to the policies written in
the preceding year and twenty per centum to the
policies in the second year preceding and in the
fourth calendar year thirty-five per centum shall
be charged to the policies written in that year,
forty per centum to the policies written in the
preceding year, fifteen per centum to the policies
written in the second year preceding, and ten per
centum to the policies written in the third year
preceding and a schedule showing such distribu-
tion shall be included in the annual statement.
All unallocated compensation loss payments
made in a given calendar year subsequent to the
first three years in which an insurer has been issu-
ing compensation policies shall be distributed as
follows: Forty per centum shall be charged to the
policies written in that year, forty-five per centum
to the policies written in the preceding year, ten
per centum to the policies written in the second
year preceding and five per centum to the policies
written in the third year preceding, and such pay-
ments made in each of the first three calendar
years in which an insurer issues compensation
policies shall be distributed as follows: In the first
calendar year one hundred per centum shall be
charged to the policies written in that year, in the
second year fifty per centum shall be charged to
the policies written in that year and fifty per
centum to the policies written in the preceding
year, in the third calendar year forty-five per
centum shall be charged to the policies written in
that year, forty-five per centum to the policies
written in the preceding year and ten per centum
to the policies written in the second year preced-
ing, and schedule showing such distribution shall
be included in the annual statement.
Whenever in the judgment of the Insurance
Commissioner, the liability or compensation loss
reserves of any insured under his supervision,
calculated in accordance with the foregoing pro-
visions, are inadequate, he may, in his discretion,
require such insurer to maintain additional re-
serves based upon estimated individual claims or
otherwise. Acts 1920, pp. ill, 114.
§ 2495(4). Schedule of experience. — Each in-
surer that writes liability or compensation policies
shall include in the annual statement required by
law a schedule of its experience thereunder in
such form as the Insurance Commissioner may
prescribe. Acts 1920, pp. Ill, 116.
[613]
§ 2496
LIFE-INSURANCE
§ 2498
§ 2495(5). Unearned premium reserve. — On all
policies of casualty insurance in force and written
for one year or less, there shall be maintained the
unearned premium reserve of fifty per centum of
the current year's premium; on all such policies
in force and written for more than one year there
shall be maintained an unearned premium reserve
of fifty per centum of the current year's premium,
plus the entire premium for subsequent years,
provided, such unearned premium reserve may be
reduced by the amount of unearned commissions
on premiums not more than ninety days past due,
which premiums are due from agent, or agencies
whose accounts with the Insurance Company are
secured by bonds executed by companies licensed
to do business in this State. Acts 1920, pp. Ill, 116.
SECTION 12.
Life-insurance.
§ 2496. (§ 2114.) Contract of life-insurance. —
An insurance upon life is a contract by which the
insurer, for a stipulated sum, engages to pay a
certain amount of money if another dies within the
time limited by the policy. The life may be that
of the assured, or of another in whose continuance
the assured has an interest.
Cross References. — For full treatment of contracts of Life
Insurance, see 8 Cum. Dig. 260, 8 Enc. Dig. 806. As to form
and sufficiency, see § 2471 and notes thereto. As to when
consummated, see § 2501. See also 8 Cum. Dig. 262, 8 Enc.
Dig. 807.
Construction. — The principles governing fire-insurance,
whenever applicable are equally the law of life-insurance.
See § 2499 and § 2475. See also, 8 Cum. Dig. 262, 8 Enc.
Dig. 807.
Insurable Interest. — An insurable interest is not neces-
sarily dependent upon marital relation of kinship by affinity
or consanguinity. In a broad sense it may be said that
any one has an insurable interest in the life of another
where the latter feels sufficient interest in his welfare, for
any reason, either to substantially assist him during his
life, or to make him a gift after death, which he perhaps
may not be able to do during life. Grand Lodge Knights
of Pythias v. Barnard, 9 Ga. App. 71, 79, 70 S. E. 678;
Cherokee Life Ins. Co. v. Banks, 15 Ga. App. 65, 67, 82 S.
E- 597. As to insurable interest in fire insurance policies,
see § 2472.
Taken together, the meaning of the section is, that one
may insure his own life without qualification; that he may
not insure the life of another unless he has an interest in
the continuance of the life of that other. Necessarily, in
the first instance, the amount of the policy is to be paid to
some one other than the insured, because ordinarily under
the contract the amount is not payable until his death.
Union Fraternal League v. Walton, 109 Ga. 1, 3, 34 S. E.
317.
An insurable interest depends upon the existence of such
facts as would create a reasonable expectation on the part
of R. of benefit or advantage to her from the continuance
of the life of S. and loss by reason of his death. McFar-
land v. Robertson, 137 Ga. 132, 73 S. E. 490.
Same — Creditor. — A creditor has, for the purpose of in-
demnifying himself against loss, but for no other, an in-
surable interest in the life of his debtor, but this interest
can not exceed in amount that of the indebtedness to be se-
cured. Such indebtedness may, however, include the cost
of taking out and keeping up the insurance, if made a
charge against the debtor, or his estate, or upon the pro-
ceeds of the policy when collected. Exchange Bank of
Macon v. Loh, 104 Ga. 446, 31 S. E. 459.
Same — Brother-in-Law. — One has no insurable interest in
the life of his brother-in-law merely because of the exist-
ence of such relationship. Chandler v. Mutual Life, etc.,
Ass'n, 131 Ga. 82, 61 S. E. 1036.
Same — Uncle and Nephew. — The relationship of uncle and
nephew will not support an insurable interest. Doody Co.
v. Green, 131 Ga. 568, 62 S. E. 984.
Same — Partners. — As the continuance of a partnership af-
fords a reasonable expectancy of advantage and benefit to
one partner, he had an insurable interest in the life of his
co-partner, and as the beneficiary named in the policy is-
sued on the life of such copartner, was entitled to receive
and retain the entire proceeds thereof. Rush v. Hawkins,
135 Ga. 128, 68 S. E- 1035.
Same — When Beneficiary Needs No Interest. — See notes
to § 2498.
Section Does Not Apply in Federal Courts. — The pro-
visions of this section and § 2498 were merely declaratory
of the general law, and hence the federal courts sitting in
Georgia are not bound by a construction of such sections
by the highest court of the state not in accord with the
views of such federal courts. Mutual Life Ins. Co. v. Lane,
151 Fed. 276.
Same — "To Be Paid to Assignee" Construed.— A ruling
which interprets the words "to be paid to an assignee" to
import that such assignee need not have an insurable in-
terest is not construction, but is judicial amendment. Mu-
tual Life Ins. Co. v. Lane, 151 Fed. 276. See notes to § 2498.
§ 2497. (§ 2115.) By whom taken. —Contracts
of life-insurance can be taken only by persons or
corporations specially authorized so to do by law.
§ 2498. (§ 2116.) To whom to be paid. — The
assured may direct' the money to be paid to his
personal representative, or to his widow, or to his
children, or to his assignee; and upon such direc-
tion given, and assented to by the insurer, no other
person can defeat the same. But the assignment is
good without such assent.
For full treatment, see 8 Cum. Dig. 264, 8 Enc Dig. 808.
Naming Beneficiary Material.— The naming of the bene-
ficiaries under a contract of life insurance is a material part
of the contract. The designation of the payees is an es-
sential stipulation. Cason v. Owens, 100 Ga. 142, 145, 28
S. E. 75.
The word "heirs," in a policy of life insurance is to be
construed as meaning next kin according to the statute of
distributions. Hubbard, etc., Co. v. Turner, 93 Ga. 752, 20
S. E- 640. See also Rawson & Co. v. Jones, 52 Ga. 458.
Where Right to Change Beneficiary Not Reserved. — In
ordinary life insurance, where no power of divestitur or to
change the beneficiary is reserved in the policy the is-
suance of the policy confers a vested right upon the per-
son so named as beneficiary, and the insured can not trans-
fer such interest to any other person without the consent
of such beneficiary. Perry v. Tweedy, 128 Ga. 402, 57 S.
E. 782; Farmers State Bank v. Kelley, 155 Ga. 733, 118 S.
E- 197. See 8 Cum. Dig. 267.
Where Right Reserved. — Under this section, a wife,
designated as beneficiary of Jhe life policies, which reserved
to the insured the right to change the beneficiary, has no
vested and indefeasible interest in the policies, though the
designation was assented to by the insurer, which will
prevent the insured from subsequently changing the bene-
ficiary. Malone v. Cohn, 236 Fed. 882. See also Farmers
State Bank v. Kelley, 155 Ga. 733, 118 S. E. 197; In re
Cohen, 230 Fed. 733.
Death of Beneficiary before Death of Insured. — Where a
wife, her executors, administrators, or assigns, were desig-
nated, as beneficiaries to whom the amount of insurance
should be paid, and she died before the death of the in-
sured, without having made any assignment, her interest
in the policy was an asset of her estate. Perry v. Tweedy,
128 Ga. 402, 57 S. E- 782.
Intention of Insured as to Beneficiary. — Ordinarily a
policy of insurance upon the life of a married man, where
no person is named therein as the beneficiary, is not pay-
able to his wife, but is payable to the executor or ad-
ministrator of his estate. Where, however, the provisions
of the policy can be so construed as to raise a fair inference
that it was the intention of the parties to the contract that
the amount due under the policy upon the death of the in-
sured should be paid to the wife, she has a right of ac-
tion against the company, upon its refusal to pay her the
amount due at his death. Pate v. Insurance Co., 19 Ga.
App. 597, 91 S. E. 883.
Where Insured Is Insolvent. — If a husband procures a
policy which names his wife as beneficiary, the wife will
be entitled to the money payable under the policy after the
death of the insured, in a contest with a creditor of the
husband, although at the time the insurance was obtained
and the premiums paid the insured was insolvent and the
premiums were paid with money stolen from the creditor.
Bennett v. Rosborough, 155 Ga." 265, 116 S. E. 788; Smith
v. Head, 75 Ga. 755, affirmed.
Fraternal Benefit Associations. — Unless the constitution
[614]
§ 2499
LIFE-INSURANCE
§ 2500
and laws of a fraternal benefit association place a limitation
upon those who may be beneficiaries under its policies, or
unless the policy itself contains some limitation as to the
beneficiaries, the insured may designate as the beneficiary
whomsoever he pleases. Grand Lodge v. Barnard, 9 Ga.
App. 71, 70 S. E. 678; Ancient Order United Workmen v.
Brown, 112 Ga. 545, 37 S. E- 890. And see Union Fraternal
League v. Walton, 112 Ga. 315, 37 S. E. 389.
Assignment in Writing. — In Steele v. Gatlin, 115 Ga. 929,
42 S. E. 253, it was said that to vest the legal title to a
policy of life-insurance in an assignee, it is essential that
the assignment should be in writing. Sprouse v. Skinner,
155 Ga. 119, 122, 116 S. E. 606.
Assignment to Person Having No Insurable Interest. —
In this state the rule is well settled that a person has a
right to procure an insurance policy on his own life and to
assign it to one who has no insurable interest in his life,
provided it be not done by way of cover for a wagering
contract. Quillian v. Johnson, 122 Ga. 49, 49 S. E- 801; At-
lanta Sav. Bank v. Downing, 122 Ga. 692, 51 S. E. 38; Ry-
lander v. Allen, 125 Ga. 206, 53 S. E- 1032; Sprouse v. Skin-
ner, 155 Ga. 119, 122, 116 S. E. 606. For full and compre-
hensive treatment, see 8 Cum. Dig. 269, 8 Enc. Dig. 809. As
to rule in federal courts, see note to § 2496.
When Assignment Passes Title. — Where the policy of in-
surance, is made payable to the executors, administrators,
or assigns of the insured, a written assignment of such
policy to the person having an insurable interest in the
life of the insured passes the title to the assignee, where
it appears as in the present case that it was intended to
vest the title in the latter. Sprouse v. Skinner, 155 Ga. 119,
122, 116 S. E. 606.
Consent to Assignment. — It is not necessary to the
validity of an assignment of a life policy that the assert
of the insurer be obtained. Rylander v. Allen, 125 Ga. 206.
53 S. E. 1032.
And where the insurer does consent to an assignment,
the assignment is- not rendered invalid because the com-
pany does not attach to the policy its formal written
memorandum of consent until after the death of the in-
sured. Farmers State Bank v. Kelley, 155 Ga. 733, 118 S.
E. 197.
Therefore, neither the assignor nor the beneficiary can
take advantage of the failure of the insurer to consent to
such assignment, and of its neglect to attach such memo-
randum of its consent to the policy during the life of the
insured. Farmers State Bank v. Kelley, 155 Ga. 733, 118
S. E. 197.
Assignment When Insured Legally Unable to Contract.
— If the act of changing the beneficiary in the policy of
insurance be done by the person whose life was insured, at
a time when he is legally unable to contract, then, though
it be done with the assent of the company and in the mati-
ner prescribed in the contract, this change in its terms will
have no binding force, and the original contract will re-
main intact. Cason v. Owens, 100 Ga. 142, 145, 28 S. E.
75; Farmers State Bank v. Kelley, 155 Ga. 733, 118 S. E-
197.
Same — Estoppel. — A wife is not estopped from attacking
the validity of a husband's assignment of the policy, on
the ground of his want of sufficient mental capacity to
make the same, because she joined him in such assign-
ment, for the reason that she could not lawfully assign
even her expectancy under the policy during his life, to
secure his debt, and because she had no such vested in-
terest in the policy with respect to which she could con-
tract. Farmers State Bank v. Kelley, 155 Ga. 733, 118 S.
E. 197.
Sufficiency of Assignment. — As to sufficiency of circum-
stances to operate as a transfer of a policy and authorize
the assignee to bring suit after the death of the insured,
see Southern Mut. Life Ins. Ass'n v. Durdin, 132 Ga. 495,
64 S. E- 264.
Intention of Parties Question for Jury. — The intention of
the insured in taking out the policy and in making the as-
signment, and of the assignee in accepting the assignment,
are questions of fact, for the determination of a jury.
Volunteer State Life Ins. Co. v. Buchannan, 10 Ga. App.
255, 73 S. E. 602.
§ 2499. (§ 2117.) Law of fire-insurance applica-
ble.— The principles before stated as to fire-in-
surance, whenever applicable, are equally the law
of life-insurance.
Pursuant to the provisions of this section the cases an-
notated under §§ 2470-2490 are equally the law, whenever ap-
plicable to both fire and life insurance. Reference should be
had to those sections and the notes thereto. For an ex-
haustive treatment of life and fire insurance and of insur-
ance generally reference should be had to 6 Cum. Dig. 2 IK,
6 Enc. Dig. 207, 8 Cum. Dig. 249, 8 Enc. Dig. 803, and to
7 Cum. Dig. 526.
§ 2500. (§ 2118.) Self -caused death releases in-
surer.— Death by suicide, or by the hands of justice,
either punitive or preventive, releases the insurer
from the obligation of his contract.
See 8 Cum. Dig. 281, 8 Enc. Dig. 816.
Definition of Suicide — Sanity. — Suicide under this section
is intentional self-destruction by one who is sane. If in-
sane or accidental, it is not legally suicide. Mutual Life
Ins. Co. v. Durden, 9 Ga. App. 797, 72 S. E. 295. And if the
insanity be of such character as to free the act of all im-
morality and leave the actor entirely blameless, it is not
suicide under this section. Life Ass'n v. Walter, 57 Ga.
533; Fraternal Relief Ass'n v. Edwards, 9 Ga. App. 43, 70
S. E. 265; Merritt v. Cotton States Life Ins. Co., 55 Ga. 103.
Taking Poison While Intoxicated. — If the assured drank
to intoxication, and while in this condition, by accident or
mistake, took an overdose of laudanum and died therefrom,
this is not a dying by his own hand, even though the mis-
take or accident be in some sense occasioned by the drunk-
enness; but if he took the laudanum with intent to destroy
his life, though it be but the intent of a drunken man, this
is a dying by his own hand. Equitable Life Assur. Soc.
v. Paterson, 41 Ga. 338.
Death by Hands of Justice. — Under this section death by
the punitive hand of justice is when the law commands the
killing. Death by the hands of preventive justice is where
the law permits the killing. In each instance the killing
must be by some person authorized to carry out the com-
mands of the law, or who is permitted by the law to do
the act in the advancement of public justice. Supreme
Lodge v. Crenshaw, 129 Ga. 195, 58 S. E. 628.
Even though the killing by a husband of a paramour of
the wife be under such circumstances that the law would
class the act as justifiable homicide, such killing is not at
the hands of justice, either punitive or preventive under
this section. Supreme Lodge v. Crenshaw, 129 Ga. 195, 58
S. E- 628.
Same — Effect of Incontestable Clause. — A policy provid-
ing that it be incontestable after one year, is not void
though the insured died by the hands of justice. Murphy
v. Metropolitan Life Ins. Co., 152 Ga. 393, lit) S. E. 178.
Fraud in Procuring Policy. — If one should procure life-
insurance upon a false promise, made to the insurer at the
time of making the contract, that he would not commit
suicide, when, in fact, it was his intention to do so, it
would be a fraud, entering into the consideration and into
the procurement of the contract, which would render the
contract void and against public policy, irrespective of this
section. Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797,
72 S. E- 295.
Presumption and Onus. — The law never presumes suicide
from the fact of self destruction. Mutual Life Ins. Co. v.
Durden, 9 Ga. App. 797, 72 S. E. 295.
Therefore, the burden is upon the company to establish
such contention by a preponderance of the evidence. While
the authorities are not uniform upon the question, the
weight of authority seems to hold that the presumption
against suicide is not overcome by introducing at the trial
the proofs of death, in one of the affidavits composing
which the cause of death is stated to be suicide. Mutual
Life Ins. Co. v. Durden, 9 Ga. App. 797, 72 S. E. 295.
Evidence. — "Expert testimony is receivable as to the
cause and manner of death." "The opinion of a non-expert
witness, who describes the facts, as to their relation to the
cause of death, is receivable in evidence." Bullard v.
Metropolitan Life Ins. Co., 31 Ga. App. 641, 122 S. E. 75.
Waiver of Section. — Where an insurance policy contained
the clause, "The company shall not be liable hereunder, in
the event of the insured's death by his own act, whether
sane or insane, during the period of one year after the is-
suance of the policy," the benefit of the provisions of this
section, was waived, unless such waiver was against pub-
lic policy. Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797,
72 S. E. 295.
In the present case there is no clearly defined public policy
opposed to the waiver of this section, and there is a clear
and vitally important public policy demanding the enforce-
ment of the contract according to its terms and the inten-
tion of the parties. Mutual Life Ins. Co. v. Durden, 9
Ga. App. 797, 72 S. E. 295.
The defendant insurer having sufficiently pleaded and re-
lied upon an express clause in the policy, and not upon this
section, the rule governing a defense under this section (see
Life Ass'n v. Waller, 57 Ga. 533), that the self-destruction
must have been a conscious, voluntary, intentional, and
[615]
§ 2501
INDUSTRIAL LIFE, ETC., INSURANCE
§ 2505
rational act, was not here applicable. Bullard v. Metro-
politan Life Ins. Co., 31 Ga. App. 641, 122 S. E. 75.
§ 2501. (§ 2119.) Time, how counted. — A policy
of life-insurance runs from midday of the date of
the policy, and the time must be estimated accord-
ingly, if the policy is limited to a specified number
of years.
See 8 Cum. Dig. 262, 8 Enc. Dig. 807.
No Time Fixed in Policy. — If no time for the commence-
ment of the risk is fixed in the contract of insurance, the
provisions of this section, are to be read into the policy as
a term thereof, and the policy runs from midday of the
date thereof. Metropolitan Life Ins. Co. v. Thompson, 20
Ga. App. 706, 93 S. E. 299.
Effect of Agreement between Parties. — This section is
not applicable where, the parties to the contract make pro-
vision as to the time of the commencement of the risk.
Metropolitan Life Ins. Co. v. Thompson, 20 Ga. App. 706,
93 S. E. 299.
Cited in Mutual Life Ins. Co. v. Stegall, 1 Ga. App. 611,
614, 58 S. E. 79.
§ 2501(1). Medical examinations. — All insurance
companies except companies writing policies of in-
surance on the industrial plan writing life insurance
in this State, including fraternal orders and all
other associations, shall be required to have made
a strict medical examination of each and every per-
son applying for life insurance. Such persons
shall submit to such reasonable rules and regula-
tions as may be prescribed by such insurance com-
panies for the purpose of making such examina-
tions, and after a policy is issued on the life of such
person, the beneficiary of such policy shall be en-
titled to collect the amount of such policy under
the terms of the contract when it matures unless
the applicant or beneficiary has been guilty of
actual fraud or has made material misrepresenta-
tions in procuring such policy, which misrepresen-
tations change the character and nature of the risk
as contemplated in the policy so issued by the com-
pany. All statements, covenants and representa-
tions contained in applications for insurance shall
never be held or construed to be warranties, but
shall be held to be representations only. Acts 1912,
pp. 119, 130.
Noncompliance with Section — Effect of Actual Fraud. —
The failure of an insurance company, other than one writing
policies of insurance on the industrial plan, "to have made
a strict medical examination" of an applicant for life in-
surance will not prevent the insurer from setting up, as a
defense to an action upon the policy written upon such ap-
plication, that the applicant was guilty of actual fraud, or
made material misrepresentations in procuring the policy,
which changed the character and nature of the risk as con-
templated therein, though the falsity of the representations
or statements in the application would have been discover-
able by the making of such strict medical examination,
where the falsity of such statements or representations was
not actually known to the company or any of its agents.
Lee v. Metropolitan Life Ins. Co., 158 Ga. 517, 123 S. E.
737.
Rule as to Material Representations Not Changed. — A
material representation in an application for life insurance
is "one that would influence a prudent insurer in deter-
mining whether or not to accept the risk, or in fixing the
amount of the premium in the event of such acceptance."
This rule was not changed by the provisions of this section.
Lee v. Metropolitan Life Ins. Co., 158 Ga. 517, 123 S. E-
737.
Rule as to Waiver Not Changed. — This section does not
alter cr lepeal the rule, that, in order to work a waiver for
the falsity of material representations in an application for
life insurance, actual notice to the company, or some ait-
thorized agent, or the falsity of such representations is nec-
essary, and that constructive notice is insufficient to effect
such waiver. Lee v. Metropolitan Life Ins. Co., 158 Ga.
517, 123 S. E. 737.
Company Need Not Show Enlargement of Risk. — In ordei
to maintain a defense by the insurer, to an action upon a
policy of life insurance issued by it, that the applicant was
guilty of actual fraud or made material misrepresentations
in procuring such policy, which misrepresentations changed
the character of the risk as contemplated in the policy so
issued by the company, it is not necessary, under this
section, for the insurer to show that the misrepresentations
enlarged the extent of the risk in the particular case. Lee-.
v. Metropolitan Life Ins. Co., 158 Ga. 517, 123 S. E. 737.
SECTION 13.
Industrial Life, etc., Insurance.
§ 2502. Industrial life-insurance defined.
In-
dustrial life-insurance is that insurance for which
the stipulated premiums, advance assessments, or
dues, are regularly payable and collectible weekly,
biweekly, monthly, quarterly, semi-annually or
annually, and the policies or benefit certificates for
which are for sums of not more than five hundred
dollars on a single life, and which policies or
benefit certificates may provide a weekly benefit
for disability, caused by sickness or accident, not
greater than twenty dollars per week. Acts 1905, p.
96; 1924, p. 51.
Editor's Note. — This section was amended by the Acts
1924, p. 51, by lengthening the periods for which the stipu-
lated premiums, advance assessments, or dues may be
collected. The words "monthly, quarterly, semi-annually or
annually" were inserted after the word "bi-weekly."
§ 2503. Companies of that character. — All cor-
porations, associations, relief organizations, socie-
ties, or fraternal orders, with or without capital
stock, and having or not having a ritualistic form
of government, whether operating under the pres-
ent insurance laws as insurance companies; or
operating under the laws governing fraternal
beneficiary orders, and issuing policies or benefit
certificates, and conducting their business in the
manner and within the meaning and definition set
forth in the preceding paragraph, shall be held and
deemed to be doing an industrial life-insurance
business, and shall be subject to this section and all
the other laws of this State not repugnant to this
section, regulating the business of life, health, and
accident-insurance in this State.
§ 2504.; Requirements.— Any corporation, asso-
ciation, society, or fraternal order organized under
the laws of this State, whether organized upon the
mutual assessment plan or as a stock company, for
the purpose of doing the business of industrial life-
insurance as in this Section defined, shall, before
commencing to do business in this State, comply
with the laws of this State regulating the manner
in which other insurance companies shall be
authorized to do business in this State, except that
the deposit, required of companies operating upon
the plan and according to the manner specified in
the two preceding paragraphs of this Section, shall
be five thousand dollars, to be made in such securi-
ties as are required of such other insurance com-
panies as are now required to make a deposit in
this State; and such deposit shall be made prior to
or on the first day of January, 1906.
§ 2505. Deposits by. — Any corporation, associa-
tion, society, or fraternal order, organized under
the laws of any other State upon the mutual assess-
ment plan, or as a stock company, for the purpose
of doing the business of industrial life-insurance as
in this Section defined, shall be authorized to do
[616]
I 2505(1)
INDUSTRIAL LIFE, ETC., INSURANCE
§ 2513(1)
business in this State upon complying with the
other laws of this State regulating the manner in
which foreign insurance companies shall be author-
ized to do business in this State, and filing with the
insurance commissioner of this State a certificate
from the officer having supervision of the insurance
department of the State under the laws of which
such corporation, association, society, or fraternal
order was chartered, or elects to make its deposit,
that such corporation, association, society, or fra-
ternal order has deposited with said State a sum of
not less than five thousand dollars in such securi-
ties as are required to be deposited by insurance
companies.
§ 2505(1). Industrial, life, health, or accident
companies, how incorporated; rights and powers;
deposit required. — Stock companies or corporations
for the purpose of doing an industrial, life, health or
accident insurance business or for the purpose of
doing either of said business, may be created under
the laws of this State, with a minimum capital
stock of $25,000.00, provided, that the petitioners
for such charter shall comply with the laws of this
State applicable to the incorporation of insurance
companies as set out in Section 2394 et sequitor,
Chapter 2, Article 4, of the Code of 1910, except
that the minimum capital stock may be $25,000.00
and that said company so organized may do any or
all branches of said business without increasing its
capital stock, though it shall have all the power,
rights and privileges conferred upon life insurance
companies under the aforementioned Section of the
Code, except that it shall not be authorized to
write ordinary life insurance, nor shall it be permit-
ted to write any polic)^ whatever exceeding the
amount of $500.00. Before being authorized to do
business, the said company shall deposit with the
treasurer of the State of Georgia an amount equal
to 60 per cent, of its capital stock, consisting of
United States bonds, State, County or municipal
bonds. Acts 1912, pp. 119, 126.
§ 2505(2). May do ordinary life insurance busi-
ness, when.— Any corporation organized in pursu-
ance of the preceding Section may be authorized to
do an ordinary life insurance business by complying
with the requirements' of the laws applicable to life
insurance companies and by filing its certificate
with the Secretary of the State showing that it has
made the deposit required for life insurance com-
panies, has procured a license from the Insurance
Commissioner, and has complied with the other
requirements of life insurance companies. Acts
1912, pp. 119, 127.
§ 2506. Companies subject to this law. — The
provisions of this Section shall in no way apply to
any company, association, organization, or society
which does not collect its premiums or dues weekly,
biweekly, monthly, quarterly, semi-annually or
annually; but any company, association, organiza-
tion, societjr, or fraternal beneficiary order, with or
without a ritualistic form of government, which
collects its dues or premiums weekly or biweekly,
monthly, quarterly, semi-annually or annually; and
which for the purpose of securing business or mem-
bers, [and for collection of premiums, dues or as-
sessments,] employs paid agents, collectors, or
solicitors, shall come under the provisions of this
Section. Acts 1924, p. 51.
Editor's Note. — This section was amended by the Acts
of 1924, p. 51, by inserting the words "monthly, quarterly,
semi-annually or annually" in the two places in which they
appear, immediately following in each instance the word
"bi-weekly." This change was made to make the section
conform with § 2502 as amended.
The words in brackets were omitted from this section as
restated in the amending act. This was probably uninten-
tional because the act does not purport to make such an
amendment.
§ 2507. When laws apply. — No law hereafter
passed shall be held, or deemed, to refer to the busi-
ness of industrial life-insurance, unless the same is
expressly referred to in said law.
§ 2508. Solvent assets, amount of. — From and
after the first day of January, 1910, every mutual
aid, benefit, or industrial life-insurance company or
association doing the business of industrial life-in-
surance in this State, as defined by the laws of this
State, whether on the stock or on the co-operative,
or mutual assessment plan, shall at all times own
and possess solvent assets to the amount of one
dollar and fifty cents for each hundred dollars of
insurance at risk by such corporation. In estimat-
ing and determining such amount there must be
deducted therefrom any liabilities of such corpora-
tion for any sums or amounts due or owing for any
purposes on claims other than liabilities upon its
policies, contracts of insurance, or certificates of
membership: [Provided, that any such company
organized on the co-operative or mutual assess-
ment plan may use any part of its guaranty fund
raised under the provisions of this Section which
it may have on hand, in estimating and determining
the amount of its solvent assets;] and any such
corporation with a capital stock may estimate and
use the property or funds in which its capital stock
has been invested in accordance with this Section,
in determining the amount of its said solvent
assets. Acts 1909, p. 169.
Editor's Note. — The part of above section inclosed in brack-
ets was repealed bv Acts 1912, pp. 119, 142, herein codified as
§ 2513 (1).
§ 2509. Amount of insurance, how estimated. —
The amount of insurance in force shall be estimated
by adding to the amount payable under any policy
as a death benefit, the amount of one week's sick
or accident benefits payable under said policy.
§§ 2510-2513.— Repealed by Acts 1912, pp. 119,
142, herein codified as § 2513(1).
§ 2513(1). Income or guaranty certificates, act
repealed, with exceptions. — No income or guaran-
tee fund certificates, as provided for in the Act
approved August 16, 1909, shall be issued in this
State; Provided, that the provisions of this Section
shall not apply to insurance companies now
chartered and organized in this State and issuing
and selling such certificates until the first day of
January, 1913, and said Act being entitled "An Act
to fix the amount of solvent assets, which mutual
aid, benefit and industrial life insurance companies
shall have and maintain; to provide a method by
which said companies, organized under the co-
operative or mutual assessment plan, may procure
such assets; and to provide for the manner of in-
vesting the assets of such companies; to provide
[617]
2514
INDUSTRIAL LIFE, ETC., INSURANCE
§ 2514(5)
for an examination of such companies by the In-
surance Commissioner, and for other purposes,"
which Act provides for issuing of such certificates,
be and the same is hereby repealed. Acts 1912, pp.
119, 142.
§ 2514. Examinations by insurance commis-
sioner.— All companies doing the business of in-
dustrial life-insurance in this State shall, at all
times, be subject to such examination as the insur-
ance commissioner of this State may order, and
shall be liable for the reasonable expense of mak-
ing such examination.
§ 2514(1). Industrial, etc., companies may be-
come stock companies, how. — Any mutual, indus-
trial, life, health or accident insurance company
now existing under the laws of Georgia, or which
may hereafter be organized under the laws of this
State, may become a stock company by filing a
certificate with the Secretary of State, showing
that three-fourths of its outstanding policyholders
have voted in lawful meeting assembled to become
a stock company, and that the capital of said com-
pany is fixed at not less than $25,000, and that the
other requirements of the laws of this State in this
behalf have been complied with; Provided, how-
ever, that no publication or petition for charter
shall be required in such instance, except as is
hereinafter provided. Policyholders in mutual
companies may vote by proxy at meetings held for
the aforementioned purpose. Said stock company
when organized as aforesaid shall have all the
power and authority as though it had been origin-
ally organized as a stock corporation. The man-
aging agent of each insurance company in this
State shall on October 1st, 1912, and each three
months thereafter file with the Insurance Commis-
sioner a statement showing the agent of his com-
pany, the amount paid for the license of each agent,
and the date of its payment, which statement shall
be verified by such managing agent. Acts 1912,
pp. 119, 127.
Certificates. — Where a company, operating as an in-
dustrial company issued a number of certificates, ap-
parently claiming authority so to do under § 2510 of the
code of 1910, now repealed, and then changed to the mutual
plan company and issued other certificates in the same
form, the certificates issued as a mutual company will not
be deemed to be regulated by § 2510, but by their own
terms. Life Ins. Co. v. Davis, 142 Ga. 32, 82 S. E. 445. See
also, Eockridge v. Ins. Co., 142 Ga. 306, 82 S. E. 831.
§ 2514(2). Regulation and requirements of com-
panies.— All industrial life insurance companies
chartered under the laws of this State to do busi-
ness on the mutual co-operative or assessment
plan, and limiting their policies to the sum not
exceeding $500.00, shall stipulate definitely in the
face of the policies the amount to be paid to the
beneficiaries under said policies in the event of the
death of the assured. In no event shall payments
to beneficiaries by such companies be contingent
upon the number of policyholders in the company
nor on the number in any division or branch of
such company. The intention of this law being to
require the payment of the full face of the policy as
stipulated therein without regard to the sub-divi-
sions of the membership by such insurance com-
panies in the management of their affairs. No
policies shall be issued by such companies without
subjecting applicants for such insurance to medical
examination. It shall be the duty of the Insurance
Commissioner to investigate the rates of premiums
which are to be charged by all such companies and
he is hereby authorized to require said companies
to charge such rates as are adequate to pay their
policies at maturity. Provided, that companies do-
ing business on the industrial plan shall not be re-
quired to have medical examiners. Acts 1912, pp.
119, 140.
§ 2514(3). False representations in regard to
policies prohibited. — No insurance company or
association doing business in this State, and no
officer, director or agent thereof shall knowingly
issue, circulate, or cause to be issued or circulated
any estimate, illustration, circular or statement of
any sort misrepresenting the terms of any policy
issued by it, or the benefits or advantages promised
thereby, or dividends or shares of surplus to be
received thereon, or shall use any name or title of
any policy or class of policies which misrepresent
the true nature thereof. Provided nothing con-
tained in this section nor in this Act shall apply to
any company or corporation except to companies
or corporations doing an industrial, life, health or
accident insurance business; nor shall it apply to
any policy, membership or beneficial certificate
except it be an industrial, health, life or accident
insurance policy membership or certificate. Acts
1913, p. 98.
As to penalty for violation of this and the two following
sections, see § 627 (5), P. C.
Editor's Note.— Section 3 of the act of 1913 (Acts 1913, p.
98), which purports to regulate and control fraudulent state-
ments and claims, is unconstitutional as being in violation
of the constitution, § 6437 of this code, which declares that
no law shall pass which refers to more than one subject-
matter, etc. Therefore this section of the act is not included
in this code. But with this section expunged the remainder
of the act is capable of enforcement and valid. See Hawkins
v. State, 146 Ga. 134, 90 S. E. 968, S. C. 19 Ga. App. 66, 90
S. E. 969. See also, Caremblem v. State, 153 Ga. 596, 598;,
113 S. E. 159.
#§ 2514(4). Premium received after insolvency;
fraudulent reinstatement; penalty. — No agents,
director or officer shall knowingly and willfully re-
ceive any premium or assessment on behalf of any
insurance company or association or fraternal
organization, knowing at the time of receipt of said
premium or assessment that said company or
association is insolvent according to the laws of the
State of the organiation [organization] of said
company without giving notice thereof to the per-
son paying the said premium or assessment. No
officer, director, agent, physician or other person
shall knowingly issue or cause to be issued a policy
or benefit certificate, nor aid in the issuing of any
policy or benefit certificate, nor aid in the reinstat-
ing in membership or policy standing of any infirm
or unhealthy person not at the time of such rein-
statement or insurance in an insurable condition,,
with the intent to defraud, [and any violator of this
provision] shall be guilty of a misdemeanor. Acts
1913, p. 98.
Editor's Note. — The words appearing in brackets near the
end of the last sentence of this section were inserted by the
editor, as it is believed that they express the legislative
intent.
§ 2514(5). Agent or solicitor required to procure
license.— No person shall act as agent or solicitor
for any insurance companyj benefit association or
[618]
§ 2514(6)
MARINE-1NSURANCK
§ 2527
fraternal organization in this State without having
first procured a license therefor from the Insurance
Department of this State as required by the law.
Acts 1913, pp. 98, 99.
§ 2514(6). Powers of insurance commissioner or
deputy; contempt. — The Insurance Commissioner
or Deputy Insurance Commissioner of this State
shall have full power to issue subpoenas and pro-
cess requiring the presence of witnesses and the
production of books and papers before him at the
place where any investigation is being had by him,
or either of them; and in the event any person who
is served with such subpoena fails to comply there-
with, he shall be punished as for a contempt by the
Superior Court of the county in which the hearing
is being had, and the Superior Courts of this State
as fully empowered hereunto, including the power
to issue attachments or other processes or notice.
to the end that the person so subpoenaed may have
his proper notice and his day in court. Acts 1913,
pp. 98, 100.
SECTION 14.
Marine-Insurance.
§ 2515. (§ 2120.) Contract of marine-insurance.
— A contract of marine-insurance is one by which a
person or corporation, for a stipulated premium,
insures another against losses occurring by the
casualties of the sea.
See 9 Enc. Dig. 184 et seq.
Contract of Indemnity. — By this section, a contract of
marine insurance is in terms classed as a contract of in-
demnity. Exchange Bank v. L,oh, 104 Ga. 446, 31 S. E.
459.
§ 2516. (§ 2121.) Unlawful commerce. — Pro-
hibited or illegal commerce, or commerce with
an enemy, or goods contraband of war, are not the
subjects of marine insurance.
§ 2517. (§ 2122.) Double insurance. — Double
marine-insurance may be obtained by a party hav-
ing an insurable interest; but in case of loss, he can
recover from both companies only the full value of
such interest. If one underwriter pays the whole
amount, he is entitled to contribution from the
other.
As to contribution in matters of joint or several interests,
see § 4588. As to amount of recovery, see § 2544.
§ 2518. (§ 2123.) Implied warranty. — The as-
sured impliedly warrants that the ship is seaworthy,
and shall not be changed except from necessity, and
that she shall be employed, conducted, and navi-
gated with reasonable skill and according to law.
Cited in Underwriters' Agency v. Sutherlin, 46 Ga. 652,
655.
§ 2519. (§ 2124.) Illegal voyage. — The illegality
of the voyage, whether known to the assured or
not, renders the contract void.
§ 2520. (§ 2125.) Deviation. — A deviation from
the voyage, if voluntary and not from necessity,
voids the policy. This necessity may arise from —
1. Stress of weather.
2. Want of necessary repairs.
3. Joining convoy.
4. Succoring ships in distress.
5. Avoiding capture or detention.
6. Sickness of master or crew.
7. Mutiny on board.
8. Any similar cause founded upon reason.
§ 2521. (§ 2126.) Perils of the sea.— The "perils
of the sea" comprehend all those misfortunes to
which goods and ships at sea are exposed from
earth, air, fire, or water. Loss from enemies is not
included, unless expressly named. The negligence,
or unskillfulness of master or mariners is not in-
cluded in a policy on the ships or goods belonging
to the owners of the vessel. If loss occurs to third
persons therefrom, the underwriter may recover
from the owner of the ship the amount paid by him.
As to diligence by assured, see § 2478.
Includes Rain. — In a marine risk when navigation is
partly by fresh water and partly by salt water and in-
volves transhipment, proof of damage by water of any
kind is prima facie, proof of damage by the perils of navi-
gation, even if the wetting is caused by rains, and whether
the rains fell on board, or on the usual transhipping wharf
whilst the goods were upon the same in the ordinary course
of transit. Underwriters' Agency v. Sutherlin, 55 Ga. 266,
267.
Includes Improper Stowage. — Damage from water in
consequence of improper stowage, unless such improper
stowage was occasioned, or acquiesced in, by the insured
or his agent, is damage from the perils of navigation.
Underwriters' Agency v. Sutherlin, 55 Ga. 266, 267.
Cited in Underwriters' Agency v. Sutherlin, 46 Ga. 652,
655.
§ 2522. (§ 2127.) Continuance of risk. — Gener-
ally the risk continues till the goods are delivered
on shore at the port of destination, or to others by
direction of the assured.
§ 2523. (§ 2128.) Increase of risk. — Any change
by which the risk is increased voids the policy.
See § 2482.
§ 2524. (§ 2129.) Open policy. — An open policy
is where the amount of the interest of the assured
is not fixed by the policy, but is left to be adjusted
in case of loss; such policies may issue in blank to
be filled by the insured as new risks may be desired.
As to valued policy, see § 2545.
§ 2525. (§ 2130.) Value, how ascertained. — The
value stated in policy is always subject to be re-
duced by proof.
As to estimation of value, see § 2546.
§ 2526. (§ 2131.) Former rules applicable. — The
rules as to warranties, misrepresentations, and
concealments, are the same in marine as in fire-in-
surance.
See §§ 2479-2483.
§ 2527. (§ 2132.) Rights of owners of merchan-
dise on vessels. — Whenever any cotton or merchan-
dise, on any vessel loading or loaded, within the
waters of this State is damaged by fire or water, or
both, while within the waters of this State, the
owners or insurers of such cotton or merchandise,
or the agent of either or any of them, shall, after
having given a satisfactory bond for the payment
of the pro rata share of said cotton or merchandise
in any liability for salvage, and in the expenses of
general or particular average, and after having
given a bond to hold the ship harmless against the
liens of those holding the bills of lading for said
cotton or merchandise, be authorized to take pos-
session of and control such damaged cotton or
merchandise, and use, manage, and dispose of the
same for the protection of the -interest of such
owners or insurers in such property, any law, us-
[619]
§ 2528
MUTUAL COMPANIES INSURING AGAINST LOSS
§ 2537
age, custom, or anything in the contract of
affreightment with the owner, master, agent of
such vessel to the contrary notwithstanding: Pro-
vided, that, as between the owner and insurer, the
rights and powers of the owner shall be prior and
superior to the rights and powers of the insurer,
except as specially stipulated in the contract of in-
surance. Acts 1889, p. 165.
§ 2528. (§ 2133.) Owner or master of vessel
must care for damaged property. — Nothing in the
preceding section shall be construed to relieve such
owner or master of such vessel from taking proper
care of such damaged property in the event the
owners or insurers, within a reasonable time after
such damage, fail to take control of such cotton or
merchandise, and nothing herein contained shall be
construed to relieve said damaged property from
the liability imposed by existing laws and customs
to contribute its proportion to the expenses accur-
ing up to the time said property is taken possession
of by the owner, insurer, or agent.
SECTION 15.
Mutual Insurance.
§ 2529. (§ 2134.) Contract of mutual insurance.
— The contract of insurance is sometimes upon the
idea of mutuality, by which each of the assured be-
comes one of the insurers, thereby becoming inter-
ested in the profits and liable for the losses; without
a charter, such an organization would be governed
by the general law of partnership; when incorpo-
rated, they are subject to the terms of their charter.
See 8 Cum. Dig. 780; 9 Enc. Dig. 543.
Effect of Charter. — Under this section the charter stands
in the place of articles of partnership, and modifies the
general law as respects losses and profits, where the two
conflict. But except as changed by the charter, equity
will apply the general laws of partnership in respect to
interest in and division of profits. Carlton v. Southern
Mut. Ins. Co., 72 Ga. 371.
§ 2530. (§ 2135.) By-laws. — The rules and reg-
ulations of such a company, adopted in pursuance
of the charter, become a part of each policy, and all
the assured are presumed to have notice thereof.
But new conditions can not be annexed to the
policy after it is issued, except by the consent of
the assured.
See 9 Enc. Dig. 545.
Section Modified.— This section is modified by § 2471, pro-
viding for attaching the application to the policy. Puryear
v. Farmers Mut. Ins. Ass'n, 137 Ga. 579, 580, 73 S. E. 851.
Ascertaining Terms of Contract. — Under this section a
contract entered into by a benefit society with a member is
executory, and its terms will be ascertained from the cer-
tificate issued to the member, in connection with the
charter and laws of the society, subject to the law of the
State under which it was created. Union Fraternal League
v. Walton, 109 Ga. 1, 34 S. E. 317; Tucker v. Knights of
Pythias, 135 Ga. 56, 58, 68 S. E- 796.
Violation of By-Law by Tenant. — A violation of a by-
law of a mutual co-operative insurance company, which be-
came a part of a policy of insurance issued by it by virtue
of this section avoided the policy, although done by a ten-
ant, and without the knowledge of the insured. Edwards
v. Farmers Mut. Ins. Ass'n, 128 Ga. 353, 57 S. E. 707.
Amendment to By-Laws. — It was held pursuant to the
provisions of this section that an amendment to the by-
laws of an insurance company, merely for the purpose of
regulating its mode of business, and adding no new con-
dition to the policies already issued, is binding on the as-
sured. Georgia Masonic Mut. Life Ins. Co. v. Gibson, 52
Ga. 640.
officers of such a company are the agents of all the
assured, and to the extent of their misconduct or
neglect, shall affect each, upon the general princi-
ples governing principal and agent, except as to the
transaction of making the contract of insurance;
up to the time of its execution, the assured stands
as a third party, and the officer issuing the policy
acts for those already in the company.
As to liability of principal for representations by agent,
see § 3598.
§ 2532. (§ 2137.) Liability for reducing funds—
If a mutual insurance company, by dividends, re-
duces its available funds below the point of remain-
ing able to meet all losses occurring on policies
then in existence, the directors of such company
primarily, and the parties receiving the dividends,
ultimately and pro rata, shall be liable individually,
jointly, and severally, for the amount of such un-
paid losses.
§ 2533. (§ 2138.) Stricter good faith required.—
A stricter good faith as to representations and con-
cealments should be required in mutual insurance
than in any other similar contracts.
As to good faith in application for fire insurance, see §
2479.
§ 2534. (§ 2139.) Agencies of foreign companies
to be licensed. — Agents of all foreign insurance
companies must obtain a license before taking in-
surance in this State, under the penalties and in
accordance with the provisions of this Code.
As definition of insurance agent, see § 2443. As to li-
censes to agent of assessment companies, see § 2456. As
to licenses of local insurance agents, see § 993 (67) ; travel-
ling insurance agents, § 993 (68) ; assessment, industrial or
sick benefit, and live stock insurance agents, § 993 (69).
§ 2531. (§ 2136.) Officers agents of all. — The
SECTION 16.
Mutual Companies Insuring Against Loss by
Burglary, etc.
§ 2535. When to be licensed. — Any insurance
company organized and incorporated on the mutual
plan under the laws of this State, and any other
State of the United States, for the purpose of insur-
ing against loss or damage resulting from burglary
and robbery or attempt thereat, and insuring
against the loss of money and securities in course of
transportation when shipped by registered mail,
shall be admitted and licensed to do business in
this State as hereinafter provided. Acts 1897, p.
64.
As to the contract, see 3 Cum. Dig. 133.
§ 2536. Prerequisites to obtaining license. — Be-
fore such company shall be permitted and licensed
to transact business in this State it shall have in
force five hundred or more policies on which the
premium shall have been paid in cash, or shall be
evidenced by the written contracts of the policy-
holders, on which not less than one fifth of the
amount shall have been paid in cash, and the cash
and net face value of contracts for premiums on
hand shall amount to a sum of not less than fifty
thousand dollars. The premium contracts so held
shall constitute a part of the assets of the company.
§ 2537. Copy of charter and statement of condi-
tion to be filed. — Every such company, association,
or partnership shall file in the office of the commis-
[620]
§ 2538
MUTUAL COMPANIES INSURING AGAINST LOSS
§ 2543(1)
sioner of insurance a certified copy of their charter
or deed of settlement, together with a statement
under oath of the president and vice-president and
secretary of the company for which he, or they, may
act, stating the name of the company and place
where located, a detailed statement of its assets,
showing the number of policyholders, aggregate
amount of premium contracts, the amount of cash
on hand in bank or in the hands of agents, the
amount of real estate, and how the same is incum-
bered by mortgage, the number of shares of stock
of every kind owned by the company, the par and
market value of the same, amount loaned on bond
and mortgage, the amount loaned on other securi-
ties, stating the kind and the amount loaned on each,
and the estimated value of the whole amount of
such securities, and any assets or property of the
company; also stating the indebtedness of the com-
pany, the amount of losses adjusted and unpaid,
the amount incurred and in process of adjustment,
the amount resisted by the company as illegal and
fraudulent, and all other claims existing against the '
company; also a copy of the last annual report, if
any, made under any law of the State by which
such company was incorporated; and no agent shall
be allowed to transact business for any such com-
pany whose reinsurance reserve, as required in
this section, is impaired to the extent of twenty
per cent, thereof while such deficiency shall con-
tinue.
§ 2538. Statement to be renewed. — The state-
ment required by the preceding paragraph shall be
renewed from year to year in such manner and form
as may be required by said insurance commissioner,
with an additional statement of the amount of pre-
miums received in this State during the preceding
year, so long as such agent continues, and the said
insurance commissioner, on being satisfied that the
membership, assets, securities, and investments re-
main secure, as heretofore mentioned, shall furnish
a renewal of the certificate as aforesaid, upon the
payment to the State, at the time of filing the state-
ment here provided for, of a fee of five dollars for
each corporation, and twenty-five dollars for each
foreign corporation.
§ 2539. Certificate of authority before doing busi-
ness.— Nor shall it be lawful for any agent or
agents to act for any company or companies re-
ferred to in this Section, directly or indirectly, in
taking risks or transacting the business of burglary
and robbery insurance, or the insurance of the safe
shipping of money and securities by registered
mail in this State, without procuring from the com-
missioner of insurance a certificate of authority,
stating that such company has complied with all
the requisitions of this Section which apply to such
companies, and the name of the attorney appointed
to act for the company.
As to definition of insurance agent, see § 2443. As to
license of local insurance agent, see § 993 (67).
§ 2540. Line of business and reinsurance reserve.
— Any company permitted and licensed to transact
business in this State under this Section shall con-
fine its line of business to that stated in paragraph
2535, and shall confine its business in this State to
banks, bankers, loan companies, and county treas-
urers, and shall not issue any policy or policies to
any persons, firms, or corporation in this State
other than banks, bankers, loan companies, and
county treasurers. Every such company shall set
aside a reinsurance reserve of fifty per cent, of its
premiums, whether collected in cash or represented
by obligations of the policyholders, as written in
its policies; this reinsurance reserves to be main-
tained so long as the risk is in force.
§ 2541. Membership fee and premium. — Policy-
holders of any company permitted to transact
business in this State under this Section, shall be
held liable to pay the membership fee and pre-
mium on their insurance as paid or contracted to
be paid at the time the policy is taken out or the
risk begins, and shall not be held liable for any
other or further assessments or claims on the part
of the company or its policyholders. The mem-
bership fee and premium agreed upon may be col-
lected in cash at the time the policy is issued, or
evidenced by a written obligation of the policy-
holder as may be agreed upon by the company and
the policyholder. Such payment or obligation
shall be the limit of the liability of the policy-
holder to the company for premium on their in-
surance.
§ 2542. Service on appointed attorney and other-
wise.— It shall not be lawful for any insurance
company, association, or partnership incorporated
by or organized under the laws of any other State
of the United States, for any of the purposes speci-
fied in this Section, directly or indirectly to take
risks or to transact any business of insurance in
this State, by any agent or agents in this State, un-
til it shall first appoint an attorney in this State on
whom process of law can be served, and file in the
office of the insurance commissioner a written in-
strument, duly signed and sealed, certifying such
appointment, which shall continue until another
attorney be substituted, and any process issued by
any court of record in this State, and served upon
such attorney by the proper officer of the county
in which such attorney may reside or may be
found, shall be deemed a sufficient service of pro-
cess upon such company, but service of process
upon such company may also be made in any
other manner provided by law.
As to service on non-resident companies, see §§ 2446,
2564. As to how service of process on corporations per-
fected, see § 2258.
§ 2543. Penalty. — Any violation of any of the
provisions of this Section shall subject the party
violating the same to a penalty of not less than one
hundred dollars or more than five hundred dollars.
SECTION 16A.
Mutual Companies Insuring Against Loss by
Fire, etc.
§ 2543(1). Who may become a body corporate
for mutual insurance purposes. — Any number of
persons, not less than twenty, who shall be bona
fide residents of this State, by complying with the
provisions of this Act, may become, together with
others who may hereafter be associated with them
or their successors, a body corporate for the pur-
[621]
§ 2543(2)
MUTUAL COMPANIES INSURING AGAINST LOSS
§ 2543(10)
pose of carrying on the business of mutual insur-
ance as herein provided. Acts 1923, p. 113.
Cross References — As to penalty for the violation of §§
2543 (1) -2543 (19), see P. C, § 627 (6). Sections 2543 (1)
to 2543 (19) are not affected by the act of 1925, regulating
fire and casualty companies; see § 2448 (13).
§ 2543(2). Articles of incorporation to be sub-
scribed.— Any persons proposing to form any such
company shall subscribe and acknowledge articles
of incorporation specifying:
(a) The name, the purpose for which formed
and the location of its principal or home office,
which shall be within this State.
(b) The names and addresses of those compos-
ing the board of directors in which the manage-
ment shall be vested until the first meeting of the
members.
(c) The names and places of residence of the in-
corporators. Acts 1923, pp. 113, 114.
§ 2543(3). Name; use of certain words; similar
'or misleading names. — No name shall be adopted
by such company which does not contain the word
"mutual" or "co-operative" or which is so similar
to any name already in use by aiw such existing
corporation, company, or association, organized or
doing business in the United States, as to be con-
fusing or misleading. Acts 1923, pp. 113, 114.
§ 2543(4). Issuing of charter; amendment. —
When a petition and articles of incorporation shall
be submitted to 'the Secretary of State and found
by him to comply with this Act, he shall endorse
his approval thereon and shall issue a charter as
now provided by law. A copy of such petition
and charter shall also thereupon be filed in the of-
fice of the Insurance Commissioner. The charter
may be amended in the manner now provided by
law and any such amendment shall be approved,
recorded and filed, as in the case of the original
charter. Acts 1923, pp. 113, 114; 1924, p. 122.
§ 2543(5). Commencement of existence and
business; by-laws, etc. — Such Corporation shall
have legal existence as soon as the charter shall
have been issued by the Secretary of State. The
Board of Directors named in articles of incorpora-
tion may thereupon adopt by-laws, fix the qualifi-
cation of membership of all applicants for insur-
ance, accept applications for insurance, and
proceed to transact the business of such com-
pany; provided, that no insurance shall be put
into force until the company has been licensed to
transact insurance as provided by this Act. Such
by-laws and any amendments thereto shall, within
thirty (30) days after adoption, be filed with said
Insurance Commissioner. Acts 1924, p. 122.
§ 2543(6). Authorized to insure or reinsure;
kinds of insurance. — Any company organized un-
der the provisions of this Act, is empowered and
authorized to make contracts of insurance or rein-
surance or accept re-insurance or any portion
thereof to the extent specified in its articles of in-
corporation for the kind of insurance following:
Fire Insurance. — Against loss or damage to
property and loss of the use and occupancy by fire,
lightning, hail, tempest, flood, earthquake, explo-
sion, fire ensuing, against loss or damage to person
or property occasioned by the operation of duly
licensed public service motor vehicles and auto-
mobiles. Acts 1923, pp. 113, 115.
§ 2543(7). Conditions precedent to doing busi-
ness.—No corporation organized under this Act
shall issue policies or transact any business of in-
surance unless it shall comply with the conditions
following, nor until the Insurance Commissioner
has, by formal license, authorized it to do' so, which
license shall not issue until corporation has com-
plied with the following conditions.
(a) It shall hold bona fide applications- for in-
surance upon which it shall issue simultaneously,,
or it shall have in force at least twenty (20)
policies to at least twenty members for the same
kind of insurance upon not less than two hundred
(200) separate risks, each within the maximum
single risk described herein.
(b) The "maximum single risk" shall not ex-
ceed twenty (20) per cent, of the admitted assets
of three times the average risk of one per cent, of
the insurance in force, whichever is the greater,
any re-insurance taking effect simultaneously with
the policy being deducted in determining such
maximum single risk.
(c) It shall have collected a premium upon each
application, which premium shall be held in cash
or security and which insurance companies are
authorized to invest, and shall be equal to not less
than twice the rhaximum single risk assumed sub-
ject to one fire nor less than ten thousand ($10,000)
dollars.
(d) Satisfy the Insurance Commissioner that its
financial condition, methods of operation and man-
ner of doing business are adequate to meet its ob-
ligations to all policy holders in this State. Acts
1923, pp. 113, 116.
§ 2543(8). Corporations, etc., may be policy
holders. — Any public or private corporation,
board, or association in this State, or elsewhere,
can make application, enter into agreement for,
and hold policies in any such mutual insurance
company. Any officer, stockholder, trustee or legal
representative of any such corporation, board, as-
sociation, or estate may be recognized as acting for
or on its behalf for the purpose of such membership,
but shall not be personally liable upon such con-
tract of insurance by reason of acting in such rep-
resentative capacity. The right of any corporation
organized under the laws of this State to partici-
pate as a member of any such mutual insurance
company is hereby declared to be incidental to the
purpose for which such corporation is organized,
and as much granted as the rights and powers ex-
pressly conferred. Acts 1923, pp. 113, 116.
§ 2543(9). Votes. — Every member of the com-
pany shall be entitled to one vote, or to a number
of votes based upon the insurance in force, the
number of policies held or the amount of prem-
iums paid as may be provided in the by-laws. Acts
1923, pp. 113, 116.
§ 2543(10). Premiums; surplus. — The maximum
premium payable by any member shall be ex-
pressed in the policy, or in the application for the
insurance. Such maximum premium may be a
cash premium and an additional contingent pre-
mium not less than the cash premium, or may be
[622 ]
§ 2543 (11J
MU1UAL UUM-FAlNllib IIMSUKIJNO ALrAlJNbl l^Ubb
§ 2543(19)
solely a cash premium. No policy shall be issued
for a cash premium without an additional contin-
gent premium unless the company has a surplus of
at least one hundred thousand ($100,000) dollars,
or a surplus which is not less in amount than the
capital stock required of domestic stock insurance
companies transacting the same kind of insurance.
Acts 1923, pp. 113, 117.
§ 2543(11). Investment of assets. — No such com-
pany shall invest an)?- of its assets except in ac-
cordance with the laws of this State, relating to the
investment of the assets of domestic stock insur-
ance companies transacting the same kind of in-
surance. Acts 1923, pp. 113, 117.
§ 2543(12). Unearned premiums and reserves
for each kind of insurance. — Such company shall
maintain unearned premiums and other reserves
separately for each kind of insurance, upon the
same basis as that required of domestic stock in-
surance companies, transacting the same kind of
insurance. Acts 1923, pp. 113, 117.
§ 2543(13). Required assets and assessments
therefor; deficiency. — Such company not pos-
sessed of assets at least equal to the unearned pre-
mium reserve and other liabilities shall make an
assessment upon its members lia'ble to assessment
to provide for, such deficiency, such assessment to
be against each member in proportion to such lia-
bility as expressed in his policy; Provided, the In-
surance Commissioner may, by written order, re-
lieve the company from an assessment or order
proceeding to restore such assets during the time
fixed in such order; and, provided, that any do-
mestic company which shall be deficient in provid-
ing the unearned premium reserve required hereby
may, notwithstanding such deficiency, come under
this Act on the condition that it shall each year
thereafter reduce such deficiency at least fifteen
per cent, of the original amount thereof and in such
case it may increase its assessments accordingly.
Acts 1923, pp. 113, 118.
§ 2543(14). Advances of money to mutual com-
pany.— Any director, officer or member of any
such company, or any other person may advance
to such company, any sum or sums of money
necessary for the purpose of its business or to en-
able it to comply with any of the requirements of
the law and such moneys and such interest there-
on as may have been agreed upon shall be payable
only out of the surplus remaining after providing
for all reserves and other liabilities and shall not
otherwise be a liability or claim against the com-
pany or any of its assets. No commission or pro-
motion expenses shall be paid in connection with
the advance of any such money to the company and
the amount of such advance shall be reported in
each annual statement. Acts 1910, pp. 113, 118.
§ 2543(15). Form of policy and endorsements. —
Any law requiring that policies be countersigned
and be delivered to a resident agent shall not ap-
ply to any policy of such mutual company on
which no commission shall be paid to any local
agent. Such mutual companj' may insert in an}'-
form or policy prescribed by the law of this State
any provisions or conditions required by its plan
of insurance which are not inconsistent and in con-
flict with any law of this State. Such policy, in
lieu of conforming to the language and forms pre-
scribed by such law, may conform thereto in sub-
stance, if such policy includes a provision or en-
dorsement reciting that the policy shall be con-
strued as if in the language and form prescribed by
such law, and a copy of such policy and endorse-
ment, if any, shall have been first filed with and
shall not have been disapproved by the Insurance
Commissioner. Acts 1923, pp. 113, 118.
§ 2543(16). Taxable premiums. — The taxable
premiums or premium receipts of any mutual in-
surance company organized in this State, for the
purposes of taxation under any law of this State,
shall be the gross premiums received for direct
insurance upon property or risks in this State, de-
ducting amounts paid for reimbursement upon
which a tax has been or is to be paid in this State,
and deducting premiums upon policies not taken,
premiums returned on cancelled policies, and any
refund or return made to policy holders other than
for losses. Acts 1923, pp. 113, 118.
§ 2543(17). Re-insurance. — Any such mutual in-
surance company organized in this State may re-
insure any part or all of any risk or risks in any in-
surance company or insurer licensed in any state
of the United States or in the District of Columbia;
provided, that no such reinsurance shall be effected
with any company or insurer disapproved there-
for by written order of the Insurance Commissioner
filed in his office. Acts 1923, pp. 113, 119.
§ 2543(18). Revocation of license. — The insur-
ance Commissioner shall have power to revoke the
license of any person or corporation violating the
provisions of this Act. Acts 1923, pp. 113, 119.
Editor's Note. — This section is based on conviction under
§ 627 (6) of the penal code, and it therefore seems to meet
the requirements of the "due process clause" of the con-
stitution. See P. C, § 627 (6).
§ 2543 (19). Certain companies, and laws not af-
fected; excepted companies may elect to become
subject to act. — All laws or parts of laws in
conflict with this Act, so far as companies or-
ganized under this Act are concerned, are hereby
repealed, but no such repeal and nothing in this
Act shall apply to or affect any company or asso-
ciation of this State now doing business, or to any
law under which any such company or association
is organized or doing business.
Any such company or association may, how-
ever, by resolution of its board of directors, duly
approved by a majorit}' of the members at a meet-
ing especiall}' called for that purpose and duly cer-
tified to by the president and secretary and filed
with and approved by the Insurance Commis-
sioner, elect to adopt and become subject to the
provisions of this Act in lieu of any Act or Acts
theretofore governing such companies or associa-
tions. Any company or association so elected [elect-
ing] and fully complying with this Act may there-
after effect insurance as authorized b)r this Act and
specify in its certificate of insurance then in force,
or as then or hereafter amended. Acts 1923, pp. 113,
119.
[623 ]
§ 2544
AMOUNT OF RECOVERY AND DAMAGES
§ 2549
SECTION 17.
Amount of Recovery and Damages.
§ 2544. (§ 2109.) Amount of recovery. — The as-
sured may recover the full amount of his loss: Pro-
vided, the same is within the amount insured. If
he has several policies on the same property, the
recovery from each company will be pro rata as to
the amount insured.
As to recovery on fire insurance contracts, see 6 Cum.
Dig. 250, 6 Fnc. Dig. 229.
Section Not Repealed. — This section was not repealed by
the enactment of § 2545. Fireman's Fund Ins. Co. v. Pekor,
106 Ga. 1, 8, 31 S. F. 779.
Double Insurance. — Where there are several valid policies
in different companies, which insure the same party, upon
the same subject-matter, and assume the same risk, this
constitutes what is denominated "double insurance," and
under this section and according to the rules established
by all of the courts, each policy must in such a case con-
tribute proportionately to the loss, even in the absence of
any specific provision so requiring. Hartford, etc., Ins.
Co. v. Cochran Oil Mill, etc., Co., 26 Ga. App. 288, 105 S.
F- 856.
Where one is insured concurrently in seven companies,
and makes claim for his whole loss against six of the com-
panies and the whole loss is thus settled conformably to
the terms of the policies and paid, the seventh company is
discharged as to him, and its liability, if any, is to the
other companies for contribution. Williamsburg City Fire
Ins. Co. v. Gwinn, 88 Ga. 65, 13 S. F. 837.
Value Estimated upon Erroneous Basis. — An insurance
company being, in any event, liable to pay in full the
amount expressed in its contract, the mere fact that the
auditor estimated the value of the property destroyed
upon an erroneous basis affords to this company no just
cause of complaint. Corporation of the I,ondon Assur. v.
Paterson, etc., Co., 106 Ga. 538, 32 S. F. 650.
§ 2545. (§ 2110.) Valued policy. — All insurance
companies shall pay the full amount of loss sus-
tained upon the property insured by them: Pro-
vided, said amount of loss does not exceed the
amount of insurance expressed in the policy; and
all stipulations in such policies to the contrary
shall be null and void: Provided, that in cases of
loses on stocks of goods and merchandise and
other species of personal property changing in
specifics and quantity by the usual customs of
trade, only the actual value of the property at the
time of loss may be recovered: Provided, the loss
does not exceed the amount expressed in the
policy. Acts 1895, p. 51.
Cross References. — As to liquidated damages, see § 4390.
As to open policies, see § 2524. As to how value ascertained,
see § 2525. As to insurance on changing property, see §
2474.
Constitutionality. — This section does not violate the 14th
amendment of the Federal constitution or § 6391 of the
State Constitution. Aetna Ins. Co. v. Bringham, 120 Ga.
925, 48 S. F. 348.
Investigation as to Actual Value. — In the absence of ex-
press language manifesting such an intent, a policy of fire-
insurance will not be construed to be a "valued policy,"
so as to preclude, in case of a fire, full investigation as to
the actual value of the property lost or destroyed. Geor-
gia Co- Op. Fire Ass'n v. Lanier, 1 Ga. App. 186, 57 S-
E. 910.
Coinsurance. — Construing this section together with the
one which precedes it, the conclusion is irresistible that
there was no intention on the part of the legislature to
declare that notwithstanding there were several policies
covering the same property, the assured could neverthe-
less, in the event of its total or partial destruction, re
cover from each company the face value of the policy is-
sued by it, if the damage by fire suffered was equal there-
to, regardless of the question whether the aggregate
amount recovered from all the companies was or was not
out of all proportion to the amount which would indemnify
the assured against the loss sustained by him. Fireman's
Fund Ins. Co. v. Pekor, 106 Ga. 1, 9, 31 S. F. 779.
A stipulation in a policy to the effect that should the
insured fail to comply with a covenant on his part to "at
all times maintain a total insurance upon the property in-
sured * * * of not less than 75 per cent, of the total
cash value thereof," he shall be deemed to be "a coinsurer
to the extent of the deficiency, and in that event shall bear
his * * * proportion of any loss occurring under this
policy," is not in contravention of this section. Fireman's
Fund Ins. Co. v. Pekor, 106 Ga. 1, 3i S. F. 779.
Mutual Insurance Contracts.— This section is applicable
to contracts for fire-insurance made by a purely mutual
fire-insurance company. Word v. Southern Mut. Ins. Co
112 Ga. 585, 37 S. F. 897.
As this section, applies to purely mutual fire-insurance
companies, the policy-holders of such a company, present
at an annual meeting cf the policy-holders, can not by
passing a resolution, waiving and renouncing the benefits
of this section and instructing the officers and directors of
the company to disregard it in making contracts of in-
surance for the company, prevent the section from operat-
ing upon such contracts made by the company. Word v.
Southern Mut. Ins. Co., 112 Ga. 585, 37 S. F. 897.
The fact that a policy-holder in a mutual fire-insurance
company, after the passage of this section, received divi-
dends upon policies held by him in the company, which
dividends were larger than they otherwise would have
been, because the provisions of this section were ignored
in settlements made by the company with other policy-
holders for losses sustained under policies held by them,
did not;> after he had sustained a loss covered by his policy^
estop him from insisting upon the application of the pro-
visions of this section to the contract between the company
and himself. Word v. Southern Mut. Ins. Co., 112 Ga 585
37 S. E. 897.
§ 2546. (§ 2111.) Estimation of value. —The
value of property is to be estimated at the time of
the loss. Contingent profits are not a part of such
value.
As to remote damages, see § 4394.
The cash value of a house is not necessarily what it cost
to build it, or what it would cost to build a similar house
at the same place. Mobile Fire, etc., Ins. Co. v. Coleman,
58 Ga. 251.
§ 2547. (§ 2112.) Privilege of rebuilding.— The
privilege, of rebuilding or reinstating the property
must be reserved in the policy or it does not exist.
In such cases, the assured has no claim for rents,
if done within a reasonable time, nor the insurer
for increased value from the fact of new and more
valuable materials.
As to casualties as abatement of rent, see § 3711.
§ 2548. (§ 2113.) Recovery back by insurer. — If,
after payment of loss, the insurer discovers evi-
dence to show himself not liable on the policy, he
may recover back the money in an action for
money had and received.
Cross References. — As to loss unknown to parties in fire-
insurance contracts, see § 2477. As to concealment of ma-
terial fact as voiding fire-insurance policy, see § 2481. As
to recovery back of voluntary payments, see § 4317. As-
to what is mistake, see § 4570. As to negligence and con-
cealment in equity, see § 4581.
Burden of Proof. — In order to entitle an insurance com-
pany to recover back money paid upon a policy of in-
surance, it is, under this section incumbent upon the com-
pany to show affirmatively that after making payment it
discovered evidence showing itself not liable on the policy.
Rome Grocery Co. v. Greenwich Ins. Co., 110 Ga. 618, 36 •
S. E. 63.
Sufficiency of Evidence. — Under this section the evidence
entitling a company to recover, must consist of proof show-
ing that, because of the fraud of the insured, the policy was
ab initio void, or that after it issued he was guilty of con-
duct either vitiating the policy, or rendering it uncon-
scionable for him to receive money thereon, and fraudu-
lently concealed from the company, at the time of receiv-
ing payment, the fact that he had been guilty of such
conduct. Rome Grocery Co. v. Greenwich Ins. Co., 110 Ga.
618,-36 S. F. 63.
§ 2549. (§ 2140.) Insurance companies shall pay
damages, when. — The several insurance com-
panies of this State, and foreign insurance com-
panies doing business in this State, in all cases
[624]
§ 2549
FIDELITY-INSURANCE
§ 2550
when a loss occurs, and they refuse to pay the same
within sixty days after a demand shall have been
made by the holder of the policy on which said
loss occurred, shall be liable to pay the holder of
said policy, in addition to the loss, not more than
twenty-five per cent, on the liability of said com-
pany for said loss; also, all reasonable attorney's
fees for the prosecution of the case against said
company: Provided, it shall be made to appear to
the jury trying the same that the refusal of the
company to pay said loss was in bad faith. Acts
1872, p. 43.
As to expenses of litigation as damages, see § 4392. As
to necessary expenses as item of damages, see § 4505.
Constitutionality. — This section is not violative of § 1
of the fourteenth amendment to the constitution of the
United States, § 6700, nor of any of the provisions of
paragraphs 2, 3, and 4 of article 1 of the constitution of
the State of Georgia §§ 6358, 6359, 6360. Harp v. Fire-
man's Fund Ins. Co., 130 Ga. 726, 61 S. F. 704. Phenix Ins.
Co. v. Hart, 112 Ga. 765, 38 S. F. 67; Phoenix Ins. Co. v.
Schwartz, 115 Ga. 113, 41 S. F. 240, are in effect overruled
by this case.
Demand and Refusal. — To render an insurance company
liable for attorney's fees under the provisions of this sec-
tion, a demand and a refusal to pay, sixty days before
suit is brought, must be plainly averred and the truth of
such averment must be established on the trial. Ancient
Order United Workmen v. Brown, 112 Ga. 545, 37 S. F. 890.
fester v. Piedmont, etc., Life Ins. Co., 55 Ga. 475, 476.
But this section does not prescribe any particular form
in which such demand shall be made, nor whether it shall
be in writing, or .a verbal demand will suffice. Hull v.
Alabama Gold Life Ins. Co., 79 Ga. 93, 3 S. F. 903.
And where, proofs of death were promptly made out upon
company forms, and repeated demands for payment were
thereafter made by the agent of the beneficiary, who was
recognized and treated as such by both parties, and after
the time for payment fixed by the policy the beneficiary
notified the company and sent a person to its principal
office, who made a direct demand for payment, there was
ample evidence of a demand made under this section. Hull
v. Alabama Gold Life Ins. Co., 79 Ga. 93, 3 S. F. 903.
Bad Faith. — The term "bad faith" in this section is not
the equivalent of actual fraud, but means any frivolous or un-
founded refusal in law or in fact to comply with the req-
uisition of the policyholder to pay according to the terms
of his contract and the conditions imposed by statute.
Cotton States Life Ins. Co. v. Fdwards, 74 Ga. 220; Mis-
souri Ins. Co. v. Lovelace, 1 Ga. App. 446, 466, 58 S. F. 93.
"Refusal to pay" in bad faith under this section is not
the legal equivolent of "having acted in bad faith" under
§ 4392. Traders Ins. Co. v. Mann, 118 Ga. 381, 386, 45 S.
F. 426.
Same — Jury Question. — Whether there was such bad faith
as would authorize the recovery of attorney's fees under
this section, was, under the facts of this case, a question
for the iury. Continental Aid Ass'n v. Hand, 22 Ga. App.
726, 97 S. F. 206.
Same — Evidence. — A failure upon the part of the in-
surance company to investigate the alleged loss or damage,
and a denial upon the part of the company of any liability
whatsoever upon the ground that such loss or damage was
not recoverable under the policy, but arose from some
cause not covered by the policy, may be considered as evi-
dence of bad faith. Central, etc., Mut. Ins. Co. v. Graham,
24 Ga. App. 199, 99 S. F. 434.
Refusal upon the part of the insurance company to ad-
just or pay for any loss or damage claimed, after having
received notice of loss and demand for payment, constitutes
evidence of bad faith in a suit based upon this section.
Central, etc., Mut. Ins. Co. v. Graham, 24 Ga. App. 199,
99 S. F. 434.
Where the agents of a life insurance company show ac-
tive sympathy with one who claims the proceeds of a
policy, against the legal representative of the insured, and
refuse to pay any part of the same until such claimant is
satisfied, although such claim is for a portion only, it is
evidence of bad faith, in the meaning of this section, and
the company may be proceeded against for 25 per cent,
damages, and counsel fees. Mutual Life Ins. Co. v. Wat-
son, 30 Fed. 653.
Amount of Attorney's Fee. — The evidence of what
amount of counsel fee would be reasonable, should be con-
fined to a certain fee, and inquiry should not extend to a
conditional fee, in the particular case. Nor can any esti-
mate be made to cover future litigation by motion for a
new trial, writ of error, etc., there being no certainty that
such future litigation will occur. If witnesses estimate fees
on a basis which is too comprehensive, or on a miscon-
ception as to what the nature of the case involves, they
should be requested on cross-examination to eliminate the
superfluous elements and correct their estimates accord-
ingly. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.
F. 18.
The amount recoverable for attorney's fees under this
section should be regarded as "costs," and hence, where a
reasonable amount for attorney's fees was necessary to
bring the amount in controversy up to $2,000, the action,
though between citizens of different states, was not within
the jurisdiction of the federal Circuit Court. Peters v.
Queen Ins. Co., 182 Fed. 113.
Time of Liability of Insurer. — Under the provisions of
this section, the liability of the insurer for attorney's fees
and damages could not accrue until the lapse of sixty days
from the date of a demand made when there was a rigut
to demand. New Zealand Fire Ins. Co. v. Brewer, 29 Ga.
App. 773, 116 S. F. 922.
Venue. — Where the policy sued on arises out of business
transacted within this State, whether the contract of in-
surance be concluded here or elsewhere, this section ap-
plies. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.
F. 18.
Such damages and attorney's fees as would be recover-
able by citizens of another State can likewise be recovered
by citizens of this State, where the contract sought to be
enforced is to be performed in such sister State. Missouri
State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S. F. 93.
The burden of proof, where unusual and unnecessary de-
lay is shown, should be upon the company to give reason
for the delay; or, after the delay is shown, it will be pre-
sumed to be vexatious, or in bad faith, if under this sec-
tion. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App.
446, 466, 58 S. F. 93.
Amount of Verdict.— Where the amount of the verdict
was substantially less than the amount claimed in the
proofs of loss and sued for, a verdict for attorney's fees
and damages was unauthorized under this section. Queen-
Ins. Co. v. Peters, 10 Ga. App. 289, 73 S. F. 536.
Awarding Fees without Damages. — That the jury
awarded fees without also awarding damages of twenty -
five per cent., or less, as provided for in this section, is
no ground for setting aside their finding as to the at-
torney's fees. Continental Aid Ass'n v. Hand, 22 Ga. App.
726, 97 S. F. 206.
Judgment without Jury.— It was not error for the judge,
sitting without a jury, to render judgment for damages
and attorney's fees under this section as well as for the
amount stated in the face of the insurance policy, the case
being in default, and no jury having been demanded. Great
Fastern Casualty Co. v. Haynie, 147 Ga. 119, 92 S. F. 939.
Failure to Recover Full Amount Sued for. — A failure on
the part of the insured to recover the full amount claimed
and sued for will not, after a denial of any liability what-
soever by the insurance company, preclude the insured
from recovering against the insurance company penalty or
attorney's fees under this section. Central, etc., Mut. Ins_
Co. v. Graham, 24 Ga. App. 199, 99 S. F. 434.
Applied in Southern Mut. Ins. Co. v. Turnley, 100 Ga.
296, 303, 27 S. F. 975; Northwestern Mut. Life Ins. Co. v.
Ross, 63 Ga. 199, 206; Phenix Ins. Co. v. Clay, 101 Ga. 331,
28 S. F. 853; Morris v. Imperial Ins. Co., 106 Ga. 461, 470,
32 S. F. 595; Fmpire Life Ins. Co. v. Allen, 141 Ga. 413
414, 81 S. E. 120; Phoenix Ins. Co. v. Gray, 113 Ga. 424, 38
S. F. 992.
Cited in Merritt v. Cotton States Life Ins. Co.. 35 Ga.
103, 104; Atlas Assur. Co. v. Kettles, 144 Ga. 306, 87 S. F.
1; Rogers v. American Nat. Ins. Co., 145 Ga. 570, 575, 8^
S. F. 700; Globe, etc., Fire Ins. Co. v. Walker. 150 Ga. 163,
164, 103 S. F. 407; Love v. National Liberty Ins. Co 15/
Ga. 259, 121 S. F. 648; Glover v. Bankers. ' etc.. Ins. Co
30 Ga. App. 308, 117 S. F. 665.
SECTION 18.
Fidelity-Insurance.
§ 2550. (§ 2141.) Contract of fidelity-insurance.
— The contract of fidelity-insurance contemplated
by this Article is one whereby a fidelity-insurance
company, or such other corporation or company as
may be doing a fidelity-insurance business in this
State, for a stipulated sum of money or premium,
[625 ]
§ 2551
FIDELITY-INSURANCE
§ 2554
insures against loss caused by the defalcation, de-
fault, neglect, or dishonesty of a trustee, officer of
the law, officers of court, agents, or other em-
ployees, and such other persons as may be required
to give bond, or guarantees the performance of all
such bonds, or other obligations in favor of the in-
sured as individuals now do under the law who
sign the bond of all such persons as sureties. Acts
1887, p. 108.
Cross References. — For comprehensive treatment of
fidelity and guaranty insurance, see 6 Cum. Dig. 197 et
seq. ; 6 Enc. Dig. 197. As to guarantee companies as surety
on bonds of officers, see § 282. As to fidelity guarantee
companies, see § 986. As to annual reports of companies,
see § 2458.
Distinction between Suretyship and Fidelity Insurance.
— There is, a well-recognized difference between a con-
tract of suretyship under § 3538 and one of fidelity in-
surance as defined in this section. Church Co. v. In-
demnity Co., 13 Ga. App. 826, 831, 80 S. $, 1093.
Necessity for Levy by Sheriff. — Assuming that this sec-
tion et seq. apply as well to summary executions issued
against the defaulting sheriff as they would apply if there
had been a regular suit and judgment, and for the pur-
poses of the present case treating these sections as appli-
cable, nevertheless the remedy provided Oy illegality )s
not available, because an affidavit of illegality will not lie
until there has been a levy on the property. Ben Hill
County v. Massachusetts Bonding, etc., Co., 144 Ga. 325,
87 S. E. 15.
§ 2551. (§ 2142.) What companies may become
sureties on bonds. — Any fidelity-insurance com-
pany or such other corporation or company that
may do fidelity-insurance business in this State, in-
corporated and organized under the laws of this
State, or any other State of the United States, or a
foreign State, for the purpose of transacting busi-
ness of fidelity-insurance, which has a paid-up
capital of not less than two hundred and fifty
thousand dollars, and which shall have complied
with all requirements of law for license to and
transaction of business by such companies in this
State, may, upon proper proof thereof and upon
production of evidence of solvency and credit, sat-
isfactory to the judge, head of department, or
other officer or officers in this State authorized to
approve and accept bonds, be accepted as surety
upon the bond of any person, company, or corpora-
tion required by the laws of this State to execute
bonds, in lieu of any surety or sureties now re-
quired by law; any such fidelity-insurance com-
pany, or other companies in this State doing a
fidelity-insurance business, may be released from
its liability on such bonds on the same terms and
conditions as are by law prescribed for the release
of individuals; it being the true intent and mean-
ing of the provisions of this Article to enable the
companies and corporations doing a fidelity-in-
surance business to become the surety on all bonds
required by law to be taken, with all the rights and
subject to all the liabilities of individuals.
As to bonds of warehousemen, see § 2911. As to ex-
penses of giving bond, see § 4071.
The question was raised but not decided as to whether
this section had the effect to repeal the provisions of §
3942 in reference to whom should be the surety upon the
bond of a non-resident administrator. Jones v. Smith, 120
Ga. 642, 645, 48 S. E. 134. See, however, in this connection,
Sutton v. Hancock, 118 Ga. 436, 45 S. E. 504.
§ 2552. (§ 2143.) Estoppel to deny corporate
power. — Any fidelity-insurance company, or other
corporation or company doing a fidelity-insurance
business in this State, which shall execute any bond
be estopped, in any proceeding to enforce the lia-
bility which it shall have assumed or incurred, to
deny its corporate power to execute such instru-
ment, or assume such liability.
As to estoppels generally, see § 5736.
§ 2553. (§ 2144.) Venue of suits on such bonds.
— In the event any fidelity-insurance company, or
other corporation or company doing a fidelity-in-
surance business in this State, shall become surety
on any of the bonds or obligations mentioned in
this Article, such corporation or company shall be
subject to be sued on such bonds or obligations,
in the county of the residence of the principal in
such bond or obligation, and service may be per-
fected on said corporation or company in the
manner prescribed for service on fire-insurance
companies doing business in this State: Provided,
that said companies, before beginning business in
this State, or signing any bond, shall obtain a li-
cense from the comptroller-general, which license
shall be revoked if said companies as to any bond
as to business in this State shall begin a suit in the
United States courts, or remove or cause to be re-
moved any suit thereto.
Cross References. — As to service against non-resident,
assessment, etc., insurance companies, see § 2564. As to
suit against maker and indorser of note, residing in dif-
ferent counties, see §§ 5530, 5594. As to liability on ware-
houseman's bond, see § 2912.
This section is merely cumulative of provisions as to
venue contained in § 2563. Morris v. George, 3 Ga. App.
413, 414, 59 S. E. 1116.
Joinder of Principals. — The principals in an administra- |
tor's bond on which a non-resident fidelity insurance com
pany is surety may be joined with the surety in a suit |
brought in any county wherein jurisdiction over the surety
may be obtained. Morris v. George, 3 Ga. App. 413, 59 S.
E. 1116.
§ 2554. Bonds of city, county and state officers.
— Solvent guarantee companies, surety companies,
fidelity insurance companies, and fidelity and de-
posit companies, incorporated and organized under
the laws of this State, or any other State of the
United States, for the purpose of transacting busi-
ness of fidelity insurance, which have a paid up
capital of two hundred and fifty thousand dollars,
and which shall have complied with all the require-
ments of law as to license required by the State,
may, upon proper proof thereof, and under produc-
tion of evidence of solvency, be accepted upon the
bonds of all city, county and State officers of this
iState; and the various officers of this State whose
duty it is to approve the sureties upon such bonds
are hereby authorized to accept such company or
companies as one of the sureties, or the only surety
upon such bonds as the solvency of such company
may warrant; provided no company shall be re-
lieved of its liability upon any such bond by rea-
son of the fact that the books and accounts of the
principal have been examined and approved as
correct by the proper authorities, when in fact there
has been a breach of said bond and a loss occurring
from such breach. Provided further, that upon
such a recommendation by the Grand Jury of any
county in regular session convened, immediately
prior to any general election of county officers that
may be held in and for any such county, each
county officer so elected in any such county shall
give as one of the sureties on his official bond
some one of the companies heretofore referred to
as surety under the provisions of this Article, shall and outlined in this section; and such surety com-
[626]
§ 2555
FIDELITY-INSURANCE
§ 2560
pany so given by any such officer may be accepted
as the only surety on said bond, provided such
Grand Jury in any such county shall also include
this in their recommendation. Acts .1896, p. 58;
1897, p. 60; 1920, p. 75.
As to guarantee companies as surety on bonds of offi-
cers, see § 282.
Editor's Note. — The second proviso at the end of this
section, following the word "breach," is new with the Acts
of 1920, p. 75.
Cited in Maloy-v. Williams, 140 Ga. 376. 78 S. E. 105 4.
§ 2555. Attachment bonds. — Such companies
may be taken as the sole surety upon all attach-
ment bonds, whether they have or do not have real
estate in this State.
As to who shall be surety on attachment bond, see §
5059.
§ 2556. Remedies in case of default. — In case of
default upon any bond upon which such companies
are sureties, then the city, county, and State au-
thorities shall have all the remedies against the
principal and sureties upon said bonds, including
the right to issue fi. fas. instanter, as provided by
law. Acts 1897, p. 60.
As to fi. fa. against treasurer failing to perform duties,
see § 224.
§ 2557. Deposit to be made before becoming se-
curity.—All companies described in this Section,
chartered by this State or other States or foreign
governments, now doing business in this State or
hereafter doing business in this State, which offer
or undertake to become security upon any bond re-
quired by law of city, county, and State officers,
before being accepted as surety thereon, shall be
required to deposit with the treasurer of this State
bonds of the United States, or bonds of this State
which according to the acts and resolutions of the
General Assembly are valid, and which amount,
according to their face value, to twenty-five thou-
sand dollars, which bonds shall be receipted for by
the State treasurer, and especially deposited by him
in the vaults of the treasury, and whenever such
company ceases to do business in this State and
has settled up all claims against it, as hereinafter
provided, and has been released from all the bonds
upon which it has been taken, said bonds shall be
delivered up to the proper party on presentation of
the treasurer's receipt.
§ 2557(1). Bonding companies, deposit required.
— Before any surety, or bonding company shall
write any bonds in this State, it shall be required
to deposit the sum of $25,000 with the State Treas-
urer, conditioned as is now provided by law for the
deposits required of such companies in writing
bonds of public officials of this State. Provided,
That whenever any such company shall have al-
ready deposited $25,000.00 as now provided by law
for writing bonds of public officials it shall not be
required to deposit an additional sum. Acts 1912,
pp. 119, 133.
§ 2558. Collection of coupons; faith of the State.
— While said bonds are so deposited, the owner of
the same shall, subject to the notices provided for
or given, be entitled to collect the coupons and use
them. For the bonds so deposited the faith of the
State is pledged that they shall be returned to the
parties entitled to receive them, or disposed of as
hereinafter provided. Acts 1896, p. 58.
As lo deposits by companies of other states, see § 2419.
§ 2559. Proceedings when loss occurs; receiver.
— Whenever any loss insured against occurs, the
insured, in order to secure his recovery, may give
notice to the State treasurer of the pendency of the
loss and of the amount claimed, after which time
the State treasurer shall be bound to retain, sub-
ject to the order of the court trying anj^ suit that
may be brought for the recovery of such loss, a
sufficient amount to pay the judgment in the case,
in the event of recovery; when suit is ended, and
the amount ascertained for which the party sued
may be liable is not paid in ten days, then the
plaintiff may file an application with the judge of
the superior court of the county where the case
was tried, for a receiver to take charge of so many
bonds as shall be necessary to satisfy the judg-
ment.
When a receiver is appointed by the judge, who
shall always require ibond and security of him for
the faithful performance of his duty, the State
treasurer, on his application, shall deliver to him
ibonds sufficient in their market value, if in his
custody, to satisfy the judgment. The receiver's
receipt shall be a complete discharge to the treas-
urer and the State of Georgia. Then the receiver
shall apply to the judge of the superior court for
an order of sale, and in pursuance of the order sell
the bonds. After deducting such expenses and
commissions as shall be allowed by 'the judge, he
shall pay over to the plaintiff, or his attorney, a
sufficient amount to satisfy the judgment; and if
there remains any residue in the hands of the re-
ceiver, he shall pay it to the agent of the com-
pany, taking his receipt for it, which shall be filed
and recorded with the other papers in the case.
If there are conflicting claims, then the State
treasurer shall deliver 'to the receivers, in the order
of their application, the bonds; and if there is any
contest between creditors which can not be settled
in this mode, then the party not receiving sufficient
bonds through the receiver appointed in his behalf
may become a party to the other case and make
known his claim to the other receiver by making
affidavit of the claim and filing the same with him,
and then the receiver shall report such claim to the
judge of the superior court appointing him, who
shall by order provide for a bill of interpleader, as
in cases in equity.
As to interpleader, see § 5471. As to when receiver an
officer of court, see § 5475. As to bond by receivers, see
§§ 5482, 2421. As to retaining bonds, when notice of loss
is given, see § 2420. As to conflicting claims to bonds, see
§ 2422.
§ 2560. When excess of bonds shall be returned.
— The State treasurer, upon demand made upon
him by said companies, shall return to insurance
ajid fidelity and deposit companies and fidelity and
surety companies the excess of the deposits held by
him over and above the deposit required by law of
said companies. In case the deposit required of
said companies is lessened by law, the excess of
the sum required by law after such decrease shall,
upon demand of said companies, be returned to
them by State treasurer. Acts 1899, p. 54.
As to when amount of bond reduced below amount re-
[ 627 ]
§ 2561
FIDELITY-INSURANCE
§ 2561(1)
quired, see § 2424. As to maintaining amount of bonds,
see § 2562.
§ 2561. When a company desires to withdraw
from the State. — When any company desires to
withdraw from the State and will satisfy the in-
surance commissioner that all suits pending against
it, and of which no notice has been given, have been
fully satisfied, or whenever no notice of claim has
been given, and when it has been released from all
bonds theretofore given by it, then the treasurer
shall return to it the bonds so deposited upon order
from the insurance commissioner. When any
company, having made the deposit required by
this law, has assumed any liability, by suretyship
or otherwise, on which no losses have accrued, and
it wishes to withdraw its deposit, before being
allowed to do so it shall have itself released from
such obligation, whether suretyship or otherwise,
and give notice of its intention to withdraw from
this State, and of the fact that it has satisfied all
losses and the claims against it, and has been re-
leased from all obligations assumed by it, which
notice shall be published in a newspaper to be
designated by the insurance commissioner of the
State, and at the expense of said company; and it
is hereby provided, that any claims of the citizens
of this State must, whether for losses accrued or
upon obligations thereinbefore assumed by said
company (where no losses have occurred), be fully
settled before said deposits shall be withdrawn.
Acts 1896, p. 58.
See §§ 2423, 2425.
§ 2561(1). Withdrawal of deposit by retiring
company, how accomplished. — In case any fidel-
ity insurance company, or any surety or bonding
company authorized to do the business of fidelity
insurance or acting as surety on bonds under the
provisions of the statutes of this State touching
that subject has retired from doing that business
in this State, or wishes so to retire, and wishes
to withdraw the deposit required to be made with
the State Treasurer of this State, as required of
such companies, the same may be accomplished
in the following manner: The company so de-
siring to retire from business and to withdraw
the deposit shall file with the Insurance Commis-
sioner a writing, verified by the oath of one of
its executive officers, stating that it has retired,
or on or after the date of the filing of such writ-
ing will retire from doing the business of fidelity
insurance or becoming surety upon bonds in this
State, and stating its desire to withdraw the de-
posit with the State Treasurer of this State made
in pursuance of the statutes of this State regulat-
ing the business of such companies. Addition-
ally thereto the company shall do one of the fol-
lowing three things:
First. Submit a statement under oath verified
by one of its executive officers that such com-
pany has settled all losses which have accrued
against it on account of bonds written or surety-
ships assumed in this State, and that its liability
has terminated as to all obligations incurred on
account of bonds written or suretyships assumed
in this State, and shall, if required by the Insur-
ance Commissioner of this State, make such fur-
ther proof of these facts as will satisfy the Com-
missioner of the truth thereof, and shall further
show that there has been published in some
daily newspaper of general circulation in this
State an advertisement for four insertions in
separate weeks preceding the date of the applica-
tion to withdraw the deposit, a notice stating the
intention of such company to retire from busi-
ness in the State and withdraw its deposit with
the State Treasurer, and that it claims to have
settled all losses and to have procured its release
from all obligations incurred on any and all
bonds and any and all assumptions of
suretyship in this State; and also giving
notice of the date on which application
will be made to the Insurance Commissioner for
authority to withdraw the deposit, and warning
all persons that if they have any cause to show
why said company should not be allowed to
withdraw its deposit that they should make the
same known in writing to the Insurance Com-
missioner on or before the date named. The In-
surance Commissioner shall have jurisdiction to
hear evidence and determine the validity of any
such objection, if filed.
Second. File with the Insurance Commissioner
a bond in a sum to be fixed by the Insurance
Commissioner, and to be approved by him, in an
amount not exceeding the amount of such de-
posit, payable to the State of Georgia, for the use-
and benefit of whom it may concern, conditioned
that said company shall pay all losses which it
may have sustained upon any bond or contract
of suretyship written or assumed in this State
and that it will faithfully perform and fulfill all
of its outstanding obligations so written or as-
sumed according to the legal tenor and effect
thereof. Such bond so to be given shall have as
surety thereon some fidelity insurance company
or surety or bonding company, which shall have
been authorized to do business in this State, and
which shall have made the deposit provided by
the statutes of this State governing the business
of such companies. It shall be stated in said
bond that it is made in pursuance of this Act;
and any person, having a right of action against
the fidelity insurance company, surety or bond-
ing company on account of any bond written or
act of suretyship assumed in this State by the
retiring company may join the surety on the
bond in this subsection of this Act provided for,
as defendant upon the obligation of suretyship-
or indemnity of the retiring company in like-
manner as if it were a joint obligation or joint
surety upon each and every bond or assumption
of suretyship made or executed in this State by
said retiring company. The surety upon the
bond so given by such retiring company shall be
liable to the same extent and in the same man-
ner as if it were a cosurety with the retiring
company upon each and all of the obligations as-
sumed upon risks and bonds written in this
State.
Third. Or make proof to the Insurance Com-
missioner of this State that it has reinsured all
of its risks and obligations, so far as they exist
in this State, in some other solvent fidelity insur-
ance company or companies which have com-
plied with the laws of this State and been au-
thorized to do business in this State and made
the deposit required of such companies in this
State, and shall produce and file with the Com-
missioner a written contract signed by the proper
[628]
§ 2561(2)
FIDELITY-INSURANCE
§ 2562(2)
executive officers of such reinsuring company or
companies, that it or they have reinsured such
risks, and that it or they consent to be bound
thereon in the manner provided in this Act.
The reinsuring company may be joined as de-
fendant in any action on any obligation of sure-
tyship or indemnity of the company whose risks
have thus been reinsured, and it shall be liable
in like manner as if it were a joint promissor or
a cosurety with the retiring company upon each
and every risk upon which such retiring company
may be liable as to business done in this State,
and shall be subject to suit therefor in like man-
ner as if it were the surety solely or in connec-
tion with such retiring company upon each and
all of its obligations of suretyship or indemnity.
Acts 1916, p. 129.
§ 2561(2). Order to treasurer to surrender
bonds. — Upon the Insurance Commissioner be-
ing satisfied that the provisions of either of the
three subsections of the foregoing section of this
Act have been complied with, he shall thereupon
pass an order reciting compliance and directing
the State Treasurer to return to such retiring
company the bonds which have been deposited
with the State Treasurer by such company un-
der the statutes regulating the business of such
companies in this State, and a certified copy of
such orders of the Insurance Commissioner shall
be authority to the State Treasurer thereupon to
deliver such bonds to said company or to such
person, firm, or corporation as it may in writing
direct the State Treasurer to deliver them to;
and upon such company or person duly author-
ized in writing by such company to receive such
bonds for it, receipting the Treasurer therefor,
the Treasurer shall deliver such bonds to said
company or the person to whom said company
shall direct that they be delivered. Acts 1916,
pp. 129, 132.
§ 2561(3). Liability; notice of suit; judgment
conclusive; defense; subrogation; action for re-
imbursement. — Nothing herein shall be con-
strued to relieve any such company so retiring
from business in this State from liability upon
any of its obligations, but it shall still remain
bound thereon until the same shall have been
fully discharged and satisfied. If the company
which shall have guaranteed or assumed the lia-
bility of such retiring company is sued upon a
bond executed or a risk originally assumed by
such retiring company without such retiring
company also being joined therein, it may give
to the company whose risk it has guaranteed or
assumed, notice of the pendency of the suit, and
as between the two companies and their privies
the judgment rendered in such action shall be
conclusive as to the validity and extent of the
liability claimed in the suit; and the company
originally liable may cause itself to be made
party defendant and may defend the action with
like effect as if it were sued in the first instance.
Upon judgment being rendered against the com-
pany assuming or guaranteeing the liability of
the retiring company it shall be subrogated to all
the rights of the company for whose undertak-
ing it shall so have been held liable. Any right
of action for reimbursement which the retiring
company would have had if it had been directly
sued and held liable, against the principal on the
bond, against indemnitors or other third persons
or corporations, or collateral deposited, or upon
funds or against persons to which or to whom it
might otherwise, either in law or equity, have
the right to look for reimbursement, shall sur-
vive and may be enforced by a suit brought in
the name of such retiring company for the use
of the company so held liable. Acts ]916, pp.
129, 132.
§ 2562. Amount of bonds must be maintained.
— Whenever, by means of the provisions of this
Section, the amount of bonds so deposited are
reduced, the treasurer shall at once notify the
insurance commissioner in writing, who will give
notice to the company depositing, and require
more bonds to be deposited, so as to always
maintain the original amount; and if the com-
pany so notified by the insurance commissioner
fails to comply within thirty days, the right of
the company to do business in this State shall be
revoked, and the insurance commissioner shall,
at the same time, give notice, by publication
in a newspaper published at the capital, of the
fact of such failure and revocation of license,
and shall mail written or printed notice to the
several ordinaries of this State, the cost of which
publication shall be paid by the company failing
to comply with the provisions of this law. Acts
1896, p. 58.
See §§ 2424, 2560.
§ 2562(1). Bond and sureties of employees of
common carriers. — No common carrier author-
ized to do business in this State when requiring
of an employee that he give bond or undertaking
of any nature whatsoever shall require as surety
thereon any one or more specific or certain
bonding company or companies as surety there-
on; provided, however, that nothing herein shall
be construed so as to prevent any common car-
rier from specifying the form or verbage of such
bond. Acts 1912, pp. 159, 160.
As to penalty for violation of this and the following sec-
tion, see § 627 (7). P. C.
§ 2562(2). How bond cancelled. — Any such
employee who shall have given any such bond
or undertaking, shall, upon the breach of any of
the conditions thereof by the other party or par-
ties thereto, have the power to cancel the same
by giving the surety or sureties thereon and the
common carrier for the benefit of whom same
shall have been made at least ten days' notice in
writing, setting out in full the reasons for can-
celling the same. Any such notice to a com-
pany, corporation or association may be served
by leaving the same with any person upon
whom service of legal process upon such com-
pany, corporation or association may be had.
Any surety or [on] any such bond or undertak-
ing shall, upon the breach of any of the condi-
tions thereof by the common carrier employee
for whom same shall have been made, have
power to cancel the same by giving such em-
ployees at least ten days notice in writing, set-
ting out in full the reasons for canceling same,
the said notice to be signed by an agent or man-
ager of such surety. Provided, that nothing
therein shall effect any right of action accruing
to any person upon the breach of a contract.
Acts 1912, pp. 159, 160.
[629]
§ 2563
SUITS AGAINST INSURANCE COMPANIES
§ 2564
SECTION 19.
Suits against Insurance Companies.
§ 2563. (§ 2145.) Suits against insurance com-
panies.— Whenever any person may have any
claim or demand upon any insurance company
having agencies, or more than one place of do-
ing business, it shall be lawful for such person
to institute suit against said insurance company
within the county where the principal office of
such company is located, or in any county where
said insurance company may have an agent or
place of doing business, or in any county where
such agent or place of doing business was lo-
cated at the time the cause of action accrued, or
the contract was made out of which said cause
of action arose. Acts 1861, pp. 58, 59; 1862-3, p.
161; 1878-9, p. 54; 1902, p. 53.
Cross References. — As to actions against insurance com-
panies, generally, see 7 Cum. Dig. 545. As to service on
non-resident companies, see § 2446. As to how service of
process on corporation perfected, see § 2258. As to where
suits against corporations may be brought, see § 2259.
Editor's Note. — The word "agency" was changed to
"agent" by the act of 1902 p. 53, and since the passage of
that act the venue of a suit against an insurance company
is determined by the fact of the company having an
"agent" or place of doing business in the county, and serv-
ice is perfected upon the company by leaving a copy of
the petition or writ with the agent under § 2564. (See Great
Eastern Casualty Co. v. Haynie, 16 Ga. App. 643, 85 S.
E- 938.)
The word "agency" and the phrase "place of doing busi-
ness," as employed in this section prior to the amendment
of 1923, were the legal equivalents of each other; and
therefore, when the legislature used the word "agency," it
meant to say, the "place of doing business." (See' Atlanta
Accident Asso. v. Bragg, 102 Ga. 748, 749, 29 S. E- 706.)
It did not necessarily follow that because an insurance
company had an agent who resided and had an office in a
given county and therein transacted the business of solicit-
ing insurance, the company itself had in that county "an
agency or place of doing business." (See Orebaugh v.
Equity Life Asso., 115 Ga. 842, 42 S. E. 208; Equity Life
Asso. v. Gammon, 118 Ga. 236, 239, 44 S. E. 978.)
Constitutionality. — This section is not in conflict with the
constitution of this State or with the Federal Constitu-
tion. Jefferson Fire Co. v. Brackin, 140 Ga. 637, 79 S. E-
467.
The constitutional power of the general assembly to
enact this section and § 2564, was recognized and settled
by the supreme court in Davis v. Central R., etc., Co., 17
Ga. 323. Merritt v. Cotton States Life Ins. Co., 55 Ga.
103. 110.
There is no conflict between § 2446 and this section. — Sec-
tion 2446 merely requires insurance companies doing busi-
ness here to file with the insurance commissioner a written
power of attorney appointing some person who shall be
authorized to acknowledge service for such company, or
upon whom process may be served, and is entirely com-
patible with the provisions of this section. Gaines v. Bank-
ers Alliance, 113 Ga. 113S, 1140, 39 S. E. 503.
Venue of suits against non-resident fidelity insurance
companies may be laid according to this section, and §
2553 is merely cumulative. Morris v. George, 3 Ga. App.
413, 59 S. E. 1116.
Legal Residence of Agent.— It is immaterial that the
agent served had in another county his legal residence for
voting, etc., as indicated by the domicile of his family.
Great Eastern Casualty Co. v. Haynie, 16 Ga. App. 643,
85 S. E. 938.
Service on State Agent. — An authorized agent of an in-
surance company, who, at the time the suit against the
company was instituted, and at the time the cause of ac-
tion accrued, and at the time of the making of the con-
tract out of which the cause of action arose, was acting,
under a state license from the insurance commissioner, as
A State agent for the company, and had his headquarters
and place of business as such agent in the county in
which the suit was instituted, was such an agent of the
insurance company that service upon him in that county
was binding upon the defendant. Great Eastern Casualty
Co. v. Haynie, 16 Ga. App. 643, 85 S. E. 938.
Subordinate Lodge as Agent. — It was held under this
section that a subordinate lodge was the agent of a fra-
ternal benefit society in the county in which the suit was
pending, and that the court had jurisdiction. Hurley v.
District Grand Lodge, 24 Ga. App. 197, 100 S. E. 233. See
the note of Jones v. District Grand Lodge, 12 Ga. App. 273,
76 S. E. 279 under § 2258, where it was held that whether
the subordinate lodge is an agent depends on the constitu-
tion and by-laws of the superior lodge.
Where Local Agency Abolished. — Under this section, a
non-resident insurance company may be sued in the county
where the company had an agent and place of doing busi-
ness when the contract of insurance was made and the-
cause of action arose, although the company has aband-
oned its agency in that county and has no agent there at
the time of the suit. Peters v. Queen Ins. Co., 137 Ga. 440.
73 S. E. 664,
Service Where No Local Agent.— Where a company has
no agent or place of doing business in the county, service
of suit may be perfected, under § 2564, by leaving a copy
of the original suit and process at the place where was
located the agent and place of doing business of the com-
pany continuously from the time of the execution of the
contract to the time of the company's discontinuance of the
agency in that county. Peters v. Queen Ins. Co., 137 Ga.
440, 73 S. E. 664.
Service Where Agent Is Partnership. — See § 3167 and
notes thereto.
Agent's Duty to Notify Principal. — It is the agent's
duty, when service is made under § 2564, to exercise dili-
gence to notify his principal, and in default thereof the
agent will be liable for such damage as the principal may
sustain. Render v. Hartford Fire Ins. Co., 33 Ga. App.
716, 127 S. E. 902.
Issuance of Second Original. — As this section provides
a plain method of procuring service upon an insurance
company in the county where the suit was brought, there
was no necessity or authority for the issuance of a second
original for service upon a person resident in another
county who had been designated by the defendant com-
pany as its agent and attorney upon whom service could!
be made. Great Eastern Casualty Co. v. Haynie, 16 Ga.
App. 643, 85 S. E. 938.
Petition Seeking Equitable Relief. — The provisions of
this section do not authorize the filing of a petition seek-
ing purely equitable relief against an insurance company
having its principal office in this State, as the sole defend-
ant, in a county other than where such principal office is
located. Porter v. State Life Ins. Co., 145 Ga. 543, 89 S.
E. 609.
Applied in Empire State Ins. Co. v. Collins, 54 Ga. 376.
United States Casualty Co. v. Newman, 137 Ga. 447, 73 S.
E. 667.
§ 2564. (§ 2146.) Service on non-resident, as-
sessment, etc., insurance companies. — In all such
suits service shall be perfected upon such insur-
ance companies by leaving a copy of the petition
or writ with the agent of the company, if any.
If no agent should be in the county, then at the
agency or place of doing business, or where the
same was located at the time such cause of ac-
tion occurred, or the contract made out of which
the same arose. In suits upon any certificate or
policy issued by non-resident religious or mutual
aid societies, co-operative or assessment life-in-
surance companies or societies, service upon the
chief executive officer, or the person acting offi-
cially for or as such chief executive officer of a
local lodge in this State, shall be sufficient serv-
ice upon such societies or companies — officers
of local lodges being hereby declared agents of
such non-resident societies or companies, and
such local lodges agencies of said companies or
societies. Acts 1890-1, p. 75.
Cross References.— See notes to § 2563. As to service on
appointed attorney, see § 2542. As to service on fraternal
beneficiary orders, see § 2874.
Constitutionality. — That part of this section which pro
vides that in an action of the character referred to service
may be perfected upon the insurance company by leaving
a copy of the petition or writ where the agency or place
of doing business was located in the county at the time
the cause of action accrued, or the contract made out of
which the same arose, has been held by the Supreme
Court to be unconstitutional, because violative of the due>
process clauses of both the State and the Federal con-
[630 ]
§ 2565
NAVIGATION COMPANIES, HOW INCORPORATED
§ 2571
stitutions. Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 63",
79 S. E. 467; Union Marine Fire Ins. Co. v. McDermott,
31 Ga. App. 676, 679, 121 S. F. 849.
Cited in Porter v. State Mutual Life Ins. Co., 145 Ga.
543, 545, 89 S. F. 609.
ARTICLE 5.
Navigation Companies, How Incorporated.
§ 2565. (§ 2147.) How incorporated. — All cor-
porate powers and privileges to navigation com-
panies in this State shall be issued and granted
by the secretary of State, upon the terms, liabili-
ties, restrictions, and subject to all the provisions
of this Article and the Constitution of this State.
Acts 1894, p. 71.
Cross References. — For full treatment of ships and ship-
ping, see 10 Cum. Dig. 348, 11 Fnc. Dig. 710. As to re-
turns of corporations, see § 2209. As to how corporato
powers granted, see § 6446.
Cited in Southland Steamship Co. v. Dixon, 151 Ga. 216,
220, 106 S. F. HI.
§ 2566. (§ 2148.) Petition, contents, by whom
and where filed. — Any number of persons not
less than five, who desire to be incorporated for
that purpose, may form a company, but, before
receiving a certificate of incorporation, shall first
file a petition in writing, addressed to the secre-
tary of State, in which shall be stated the names
and residences of each of the persons desiring
to form said corporation, the name of the navi-
gation company they desire to have incorpo-
rated, the amount of the proposed capital stock,
the number 6f years it is to continue, the place
where its principal office is to be located, a re-
quest to be incorporated under the laws of this
State; that they have given four weeks notice of
their intention to apply for said charter, by pub-
lication of the petition in one of the newspapers
in which the sheriff's advertisements are pub-
lished for said county, once a week for four
weeks before filing said petition. There shall be
annexed to the petition an affidavit, made by at
least three of the persons forming said company,
that the names subscribed are the genuine sig-
natures of the persons named therein, and that
the facts stated in the petition are true to the
best of their knowledge, information, and belief.
Said petition, thus sworn to, shall be filed in the
office of the secretary of State, who shall indorse
thereon the date of filing, and record the same
in a book to be kept by him for that purpose,
which shall be open to the inspection of the pub-
lic at all times during the office hours of the sec-
retary of State. Acts 1894, p. 71.
Cited in Southland Steamship Co. v. Dixon, 151 Ga. 216.
220, 106 S. F- HI.
§ 2567. (§ 2149.) Certificate of incorporation.
— When said petition shall have been filed with
said secretary, he shall issue to said company,
under the great seal of the State, the following
form of certificate:
To all to whom these presents may come —
Greeting:
Whereas, In pursuance of an Act of the Gen-
eral Assembly of Georgia, approved December
6th, 1894, and (naming the persons who signed
the petition) having filed in the office of the
secretary of State a certain petition seeking the
formation of a corporation to be known as (here
insert corporate name), with a capital stock of
[6
$ , for the purpose of owning, constructing,
equipping, maintaining, and operating vessels,
steamboats, and all other water-crafts to be en-
gaged in navigation, and having complied with
the statutes in such cases made and provided;
therefore, the State of Georgia hereby grants un-
to the above-named persons, their successors,
and assigns, full authority, by and under the said
name of , to exercise the powers and
privileges of a corporation for the purposes
above stated, subject to the provisions of Article
4 of the Constitution of this State, and all laws
governing such navigation companies of force at
the date of the granting of this certificate, or that
may hereafter become of force, either by consti-
tutional or statute law.
In witness whereof, these presents have been
signed by the secretary of State, and to which is
annexed the great seal of the State of Georgia,
at Atlanta, Georgia, this day of ,
18 Acts 1894, p. 72.
Cited in Southland Steamship Co. v. Dixon, 151 Ga. 216,
220, 106 S. F. HI.
§ 2568. (§ 2150.) Incorporated. — Thereupon the
persons who signed said petition, and all persons
who shall become stockholders in such company,
shall be a corporation by the name specified in
said petition and certificate, and shall possess the
powers and privileges and be subject to the pro-
visions contained in this Article. Before the
secretary of State shall issue said certificate, the
petitioners shall pay to the treasurer of the State
a fee of fifty dollars.
§ 2569. (§ 2151.) Certificate evidence of in-
corporation.— Before the secretary of State shall
issue the certificate, he shall satisfy himself that
all the requirements of this Article, anterior to
the filing of said petition, have been substantially
complied with, and any certificate, or duplicate
thereof, issued by the secretary of State, shall
be conclusive evidence of the existence of such
corporation in all the courts and places in this
State, and of a compliance with all the require-
ments of this Article.
§ 2570. (§ 2152.) Stock, subscriptions for. —
When such certificate has been issued, the per-
sons named therein, in case they shall not have
subscribed for the entire capital stock, may open
books of subscription to complete the subscrip-
tion to the capital stock of said company, in such
manner and for such amount per share as they
may deem proper and expedient, and receive
said subscriptions until the entire capital stock
is subscribed. In no case shall said capital stock
be increased except as hereinafter provided.
Acts 1394, p. 73.
§ 2571. (§ 2153.) Organization of company. —
When the amount of capital stock has been sub-
scribed, the persons named in said certificate of
incorporation, or a majority of them, are au-
thorized to call a meeting of the stockholders
for the purpose of organization, which meeting
shall be held in the city, or town, or place where
the principal office of said company shall be lo-
cated, and of which meeting notice shall have
been given as herein provided. At said meeting, at
which a majority of stock subscribed shall con-
stitute a quorum, there shall be elected a board
of directors of not less than three nor more than
1]
§ 2571(1)
NAVIGATION COMPANIES, HOW INCORPORATED
§ 2576
fifteen to manage the affairs of said company,
each share of stock to be entitled to one vote,
and a plurality of votes cast being necessary to
elect. The persons so elected shall continue in
office until relieved by their successors. No per-
son shall be a director in said company unless
he be a stockholder, and a majorit}^ of the direct-
ors must be citizens of this State. The board
of directors shall select from their number a
president, and may elect one or more vice-presi-
dents, and may appoint a secretary, treasurer,
and such other officers, agents, and servants as
they may deem necessary. The regular election
of directors shall be held annually at the princi-
pal office of said company. Vacancies caused by
death, resignation, or otherwise shall be filled in
such manner as shall be provided by the by-laws
of the company. Acts 1894, p. 73; 1913, p. 51.
Editor's Note.— By the Acts of 1913 p. 51, the number
■of those to be elected to the board of directors was
changed from "not less than five nor more than seven"
to "not less than three nor more than fifteen."
§ 2571 (1) Number of directors. — The Board
of Directors of navigation companies organized
under or adopting the provisions of this Article,
and any amendments thereto, shall consist of
not less than three nor more than fifteen direc-
tors, as may from time to time be provided by
the by-laws of the company. Acts 1913, pp. 51,
52.
§ 2572. (§ 2154.) Subscriptions to stock, how
paid. — The directors may require the subscribers
to the capital stock to pay the amounts variously
subscribed fry them, in such installments as they
may deem proper, and the directors may receive
cash or property, real or personal, at the agreed
value thereof, in the payment of such install-
ments. If any subscriber shall neglect to pay
any installments as required by resolution of the
board of directors, the directors may direct suit
to be brought against him, forthwith for the
amount of such call, or may in their discretion,
after thirty days notice to such stockholder,
cause his stock to be put up and sold at auction
to the highest bidder for cash, and any deficiency
in the sum thus realized necessary to make the
amount of the call shall be made good by the
delinquent; any surplus over the amount of the
call and the expenses of said sale shall be paid
over to him. A certificate of stock shall be is-
sued to the purchaser, and he shall stand in the
same relation to the company as the delinquent
would have, had he not so made default. Such
sale shall be in the city, town, or place where
the principal office of the company is located, at
such time and place as the directors may pre-
scribe. If for any reason it is not practicable to
serve such delinquent stockholder with notice of
such sale, personally or by mail, or if he be a
non-resident of this State, then notice may be
given him of such sale by publication in the
newspaper in which sheriff's advertisements are
published in the county of its principal office,
once a week for four weeks prior to the date of
such sale. Acts 1894, p. 73.
§ 2573. (§ 2155.) Stock personal property, how
transferred. — The stock in said company shall be
deemed personal property, and shall be trans-
ferable in such manner as may be prescribed by
the by-laws of said company.
As to when transfer of shares complete, see § 2219. As
to what is personally, see § 3646. As to stock of railroads,
see § 2583. As to stock of insurance companies, see §
2398.
§ 2574. (§ 2156.) How increased. — In no case
shall the capital stock be increased except by a
vote of two thirds of the capital stock of said
corporation represented at an annual or special
meeting of stockholders called for that purpose,
and after not less than ten days notice published
in the newspaper in which the sheriff's adver-
tisements are published in the county of its
principal office. The stock may be voted in
person or by written proxy. Acts 1894, p. 74.
As to change of name or capital stock, or place of busi-
ness, see § 2201.
§ 2575. (§ 2157.) Powers of corporation. — Said
company shall be empowered:
1. To acquire, purchase, hold, and operate all
such real and personal property as may be neces-
sary or convenient for the maintenance and
operation of its said business and to accomplish
the purposes of its organization.
2. To convey persons, vessels, and other prop-
erty, by the use of steam, sail, or other means,
and to receive compensation therefor; and to do
all other things incident to a general navigation
business, including the right to tow, assist, and
rescue vessels.
3. To erect and maintain convenient buildings,
wharves, docks, fixtures, and machinery for the
accommodation and use of their passengers,
freight, and other business.
4. To regulate the time and manner in which
passengers, vessels, and other property shall be
transported, and the compensation to be paid
therefor, subject to any existing law of this
State upon the subject.
5. To borrow such sum or sums of money, at
such rates of interest .and upon such terms, as
said company or its directors may agree upon,
and to execute trust deeds or mortgages, or both,
if in their judgment the occasion may require it,
for securing the payment thereof. Acts 1894, p.
74.
Cited in Southland Steamship Co. v. Dixon, 151 Ga. 216,
220, 106 S. E. 111.
§ 2576. (§ 2158.) Navigation companies hereto-
fore incorporated may acquire benefits of this
Article. — Any navigation company that has been
already incorporated, whether by the General
Assembly or otherwise, may amend its charter
by adopting the provisions of this Article, or by
extending the time of expiration of its original
charter for a period not exceeding fifty years;
and when it has so amended its charter, it may
retain its original organization and the same
amount of capital stock and other rights and
privileges provided for in the said original
charter, except the right of exemption from tax-
ation, which may not be i n conflict with this
Article or any other law in force in this State
relating to the powers and privileges of such
corporations; and such amendments shall be
without prejudice to any of the prior rights or
contracts of said corporation. The provisions
of this Article may also be adopted by any per-
son or persons now owning or operating a navi-
[632]
§ 2577
METHOD OF INCORPORATION
§ 2578
gation business in this State, without prejudice
to such organization as they may have already
effected, and without prejudice to their existing
contracts and obligations. Whenever any navi-
gation company desires to amend its charter, or
any person or persons desire to adopt the provi-
sions of this Article as above provided, it or
they shall file a petition with the secretary of
State, setting forth particularly in what manner
it is desired to amend its charter or adopt the
provisions of this Article. When such petition
is filed, the secretary of State shall issue to said
company, or person or persons, under the great
seal of the State, a certificate setting forth the
manner in which the charter is amended, if the
petition be for amendment; or if the petition be
to adopt the provisions of this Article, then a
certificate setting forth that said persons are a
body corporate, with all the powers, duties, and
liabilities of this Article. Before said certificate
shall be issued, said petitioner or petitioners,
shall pay to the treasurer of the State the sum
of twenty-five dollars. Acts 1894, p. 75.
As to how charters amended, see § 2197. As to privileges
granted to railroad companies already incorporated, see
§ 2596.
ARTICLE 6.
Railroads.
SECTION 1.
Incorporation and Powers.
DIVISION 1.
Method of Incorporation.
§ 2577. (§ 2159.) Corporate powers to railroads
granted by secretary of State. — All corporate
powers and privileges to railroad companies in
this State shall be issued and granted by the
secretary of State, upon the terms, liabilities,
restrictions, and subject to all the provisions of
this Article and of the Constitution of this
State. If by reason of interest in the proposed
corporation the secretary of State should be
disqualified, the duties required to be performed
by the secretary of State shall be performed by
the comptroller-general. Acts 1892, p. 37; 1880-
1, p. 156; 1882-3, pp. 135, 136; 1884-5, p. 40; 1887,
p. 31; 1894, pp. 65, 69.
Cross References. — For full treatment of railroads, see
9 Cum. Dig. 753, 10 Enc. Dig. 741. As to how corporate
powers granted, see § 6446. As to comptroller general
acting when secretary disqualified, in granting banking
charter, see § 2263. As to how street railroads incorporated,
see § 2600.
Editor's Note.— The act of 1915, p. 18, purported to
amend this section by adding the words : "no corporate
power or privilege shall ever be granted by the secretary
of State to any private company to build a line of railway
parallel with the track of the Western & Atlantic Rail-
way so long as the same remains the property of this
State."
It has been held that this amending act while not vio-
lative of art. 3, § 7, par. 8, of the constitution of this
State, § 6437; (containing matter different from caption)
it is a special enactment having reference to a matter for
which the existing general law provided; and is void as vio-
lative of § 6391 of the constitution. See Morrison v. Cook,
146 Ga. 570, 91 S. E. 671. Hence, the amendment is not in-
corporated in this code.
The superior courts have no power, under the constitu
tion of this State, to grant charters to railroad companies.
If, notwithstanding, a superior court should go through
the form of incorporating a railroad company, and the al-
leged company transacted business as a common carrier in
transporting freight and passengers, it may be that the
persons composing it would be estopped from denying that
it was a railroad company, and as such subject to the
laws of this State with respect to the liability of railroad
companies. Ellington v. Lumber Co., 93 Ga. 53, 54, 19 S-
E. 21.
Corporation De Facto. — There being in force a general
law for the incorporation of railroad companies, if sub-
sequent special charters of two railroad companies were
unconstitutional and therefore wholly void, each of said
companies was nevertheless a corporation de facto, and as
such could acquire and own property and would be bound
to its creditors by all acts which would have bound it had
it been duly incorporated under the general law. Georgia
So., etc., R. Co. v. Mercantile Trust, etc., Co., 94 Ga. 306,
21 S. E- 701.
Street Railroads. — Even if, after the passage of this sec-
tion et seq., the General Assembly could not constitutionally
grant a special charter to a railroad company of the kind
contemplated by the provisions of that law, inasmuch as
that law is not applicable to street railroad companies the
General Assembly could, after its enactment, constitu-
tionally grant a special charter to a railroad company of
the latter kind, and in doing so, could authorize such a
company to extend its line to a suburban terminus beyond
the limits of the town or city in which the same was to
be located. Dieter v. Estill, 95 Ga. 370, 22 S. E. 622. See
also, Brown v. Atlanta R., etc., Co., 113 Ga. 462, 470, 39
S. E. 71.
Cited in English v. Rosenkrantz, 152 Ga. 726, 740, 111 S.
E. 198.
§ 2578. (§ 2160.) Petition for incorporation, to
contain what. — Any number of persons not less
than ten, who desire to be incorporated for that
purpose, may form a company, but, before re-
ceiving a certificate of incorporation, shall first
file a petition in writing, addressed to the secre-
tary of State, in which shall be stated the names
and residences of each of the persons desiring to
form said corporation; the name of the railroad
company they desire to have incorporated (but
in no event shall the name selected be the name
of existing railway corporations in the State of
Georgia) ; the length of said road as near as can
be estimated; the general direction of said road;
the counties through which said road will prob-
ably run; the names of the principal places from
which and to which it is to be constructed; the
amount of the proposed capital stock; the num-
ber of years it is to continue; if the capital stock
is to consist of common or preferred stock, the
amount of each class and the rights and privi-
leges of the latter over the former; the place
where its principal office is to be located; that
they do intend in good faith to go forward
without delay to secure subscriptions to the
capital stock, construct, equip, maintain, and
operate said railroad; a request to be incorpo-
rated under the laws of this State; that they have
given four weeks notice of their intention to ap-
ply for said charter, by the publication of said
petition in one of the newspapers in which the
sheriff's advertisements are published, in case
there is a newspaper published in said county, in
each of the counties through which said pro-
posed road will probably run, once a week for
four weeks before the filing of said petition.
There shall be annexed to said petition an affi-
davit made by three of the persons forming said
company, that the names subscribed are the
genuine signatures of the persons named there-
in, and that the facts stated in the petition are
true to the best of petitioners' knowledge, in-
formation, and belief. Said petition thus sworn
[633
§ 2579
ORGANIZATION AND CAPITAL STOCK
§ 2581
to shall be filed in the office of the secretary ol
State, who shall indorse thereon the date of the
filing, and record the same in a book to be kept
by him for that purpose, which said book shall
be open to the inspection of the public at all
times during the office hours of said secretary
of State. Acts 1892, p. 37.
Cited in Bridwell v. Gate City Terminal Co., 127 Ga.
520, 56 S. D. 624.
§ 2579. (§ 2161.) Form of certificate to be is-
sued.— When said petition has been filed with
said secretar}', he shall issue to said company
under the great seal of the State the following
form of certificate, to wit:
*'To all to whom these presents may come —
Greeting:
"Whereas, In pursuance of an Act of the Gen-
eral Assembly of the State of Georgia, approved
December 17th, 1892, and (naming the persons
who sign the petition) having filed in the office
of secretary of State a certain petition seeking
the formation .of a corporation to be known as
(here insert name), with a capital stock of $ ,
for the purpose of constructing, equipping,
maintaining, and operating a railroad from
to , and having complied with the statutes
in such cases made and provided; therefore, the
State of Georgia hereby grants unto the above-
named persons, their successors and assigns, full
authority, by and under the said name of ,
to exercise the powers and privileges of a cor-
poration for the purposes above stated, subject
to the provisions of Article 4 of the Constitu-
tion of this State, and all the laws governing
railroad companies of force at the date of this
certificate, or that may hereafter become of
force, either by constitutional or statute law, or
by any rules and regulations of the railroad
commission of this State, or otherwise, which
govern and control the operation of railroads in
this State.
"In witness whereof, these presents have been
signed by the secretary of State, and to which
is annexed the great seal of the State, at At-
lanta, Ga., this day of , 18 "
Thereupon persons who signed said petition
and all persons who shall become stockholders
in such company shall be a corporation by the
name specified in said petition and certificate,
and shall possess the powers and privileges and
be subject to the provisions contained in this
Article. Before the secretary shall issue said
certificate, the petitioners shall pay to the treas-
urer of the State a fee of one hundred dollars.
Acts 1892, p. 39.
§ 2580. (§ 2162.) Secretary of State to see that
prerequisites are complied with. — Before the
secretary of State shall issue the certificate men-
tioned in the preceding section, he shall satisfy
himself that all of the requirements of this Ar-
ticle prior to the filing of said petition have been
substantially complied with, and any certificate
or duplicate thereof issued under this Article by
said secretary of State shall be conclusive evi-
dence of the existence of such corporation in all
the courts and places in this State, and of a
compliance with all the requirements of this
Article. When such certificate has been issued,
the persons named therein, in case they shall not
[634]
have subscribed for the entire capital stock, may
open books of subscriptions to complete the sub-
scription to the capital stock of said company, in
such places and after giving such notice as they
may deem expedient, and may from time to time
receive subscriptions until the whole capital
stock is subscribed. The capital stock of said
company shall be divided into shares of one
hundred dollars each, and in no case shall said
capital stock be increased except as hereinafter
provided. Acts 1892, p. 39.
As to attested papers as evidence, see § 5798. As to
certificate as evidence of incorporation, see § 2569. As to
transfer of stock of railroad, see § 2583. As to railroad
stocks and bonds, see § 2665.
DIVISION 2.
Organization and Capital Stock.
§ 2581. (§ 2163.) Meeting for organization. — -
When the amount of the capital stock has been
subscribed, the persons named in said certificate
of incorporation, or a majority of them, are au-
thorized to call a meeting of the stockholders
for the purpose of organization, which meeting
shall be held in the city or town in which the
principal office of said company shall be lo-
cated, and of which meeting every subscribing
stockholder shall have notice. At said meeting
persons holding a majority of the stock sub-
scribed shall constitute a quorum, and there shall
be elected a board of directors of not less than
five nor more than fifteen to manage the affairs
of said company. Stock shall be represented at
said meeting in person, or by written proxy,
each share of stock being entitled to one vote,
and a plurality of votes cast being necessary to
elect, said election to be governed by such by-
laws as said company may prescribe, and the
persons elected as directors to continue in office
until others are elected to fill their places. No
person shall be elected a director unless he be a
stockholder owning stock in his own name, and
a majority of the directors must be citizens and
residents of this State. If for any reason the
election is not held at the time appointed, the
same may be held at any time thereafter, of
which meeting every subscribing stockholder
shall have notice. Notice of any organization
meeting under this section shall be given by a
notice to each stockholder in writing, stating
the purpose of the meeting, served upon him
personally, or by depositing said notice in the
postoffice, postage prepaid, directed to him at the
post-office nearest his usual residence, at least
ten days previous to the meeting. The board of
directors shall select from their number a presi-
dent, and may elect one or more vice-presidents,
and may appoint a secretary, a treasurer, and
such other officers and agents as they may deem
necessary. The regular election for directors
shall be held annually, at the principal office of
the company. Vacancies occasioned in the board
of directors by death, resignation, or otherwise,
shall be filled in such manner as shall be pre-
scribed by the by-laws of the company. Acts
1892, p. 40.
Majority Not Present. — Where stockholders attend a
regular annual meeting of stockholders provided for in
this section, they may transact the business of that meet-
ing, and elect officers, although a majority in interest or
§ 2582
CORPORATE POWERS OF RAILROADS
§ 2584
in number of the stockholders are not present. Sylvania,
etc., Co. v. Hoge, 129 Ga. 734, 59 S. E. 806.
Filling Vacancies. — Where the directors are reduced by
death below the minimum number prescribed by the char-
ter, and there is no provision in the charter or by-laws
for filling the vacancy by the directors, the stockholders
may supply the vacancy. Sylvania, etc., R. Co. v. Hoge,
129 Ga. 734, 59 S. E. 806.
Failure to Hold Meeting. — Where stockholders have failed
to hold a regular annual stockholders' meeting and elect
directors, a meeting of the old board of directors on the
day when the stockholders should have acted, in which
they resolve to hold over until their successors are
elected, is not in effect a reelection of them by the stock-
holders for another term. Svlvania, etc., R. Co. v. Hoge,
129 Ga. 734, 59 S. E. 806.
Absence from Meeting. — A shareholder who designedly
absents himself from a stockholders' meeting surrenders no
right appertaining to the ownership of his stock, except
the right to participate in the meeting which he refuses
to attend. Sylvania, etc., R. Co. v. Hoge, 129 Ga. 734, 59
S. E- 806.
Mandamus to Compel Election. — If at any meeting the
stockholders fail or refuse to elect directors, any stock-
holder may by mandamus compel the corporation and the
directors holding over to call a meeting for the purpose of
electing a board of directors. Sylvania, etc., R. Co. v.
Hoge, 129 Ga. 734, 59 S. E. 806.
Cited in English v. Rosenkrantz, 152 Ga. 726, 740, 111 g.
E- 198.
§ 2582. (§ 2164.) Construction not to begin un-
til stock all subscribed. — Said railroad company
shall not begin the construction of said road
until all of the capital stock specified in said
petition has been subscribed. The directors may
require the subscribers to the capital stock to
pay the amounts variously subscribed by them,
in such installments as they may deem proper,
and the directors may receive cash or property,
real or personal, at the agreed value thereof, in
the payment of such installments. If any sub-
scriber shall neglect to pay any installment as
required by resolution of the board of directors,
the directors may direct suit to be brought
against him forthwith for the amount of such
call, or may in their discretion, after thirty days
notice to such stockholder, cause his said stock,
after such advertisement as may seem to them
proper, to be put up at auction and sold to the
highest bidder for cash, and any deficiency in
the sum thus received, necessary to make the
amount of the call, shall be made good by the
delinquent; any surplus over the amount of the
call and the expenses of the advertisement and
sale shall be paid to him. A new certificate of
stock shall be issued to the purchaser, and he
shall stand in the same relation to the company
as the delinquent would, had he not so made de-
fault. Such sale shall be in the city or town
where the principal office of said company may
be located, at such time and place as the board
of directors may prescribe. If for any reason it
is not practicable to serve such delinquent
stockholder with notice of such sale, personally
or by mail, or if he be a non-resident of the
State of Georgia, then notice may be given him
of such sale by publication in any newspaper
published in the town or city where the prin-
cipal office of such company may be located,
once a week for four weeks prior to the date of
such sale. The company may proceed to col-
lect from delinquent subscribers by sale of the
stock as aforesaid, by suit, or by either or both
of said remedies. Acts 1892, p. 40.
As to powers of directors of banks, see § 2267. As to
issue, increase, and diminution of capital stock of banks,
see § 2268. As to necessity for stock being paid in by in-
[ 63
surance companies, see § 2396. As to how subscriptions
to stock of navigation companies paid, see § 2572.
§ 2583. (§ 2165.) Stock transferable.— The stock
in said railroad company shall be deemed per-
sonal property and shall be transferable in the
manner prescribed by the by-laws of the com-
pany, and no share shall be transferable until all
previous calls thereon shall have been fully paid
in. All property, whether real or personal, of
any stockholder in this State shall be exempt
from the debts or liabilities of said company, ex-
cept to the amount of the unpaid subscription of
said stockholder to the capital stock of said
corporation. In no case shall said road be
bonded or capital stock increased except by a
vote of two thirds of the capital stock of said
corporation represented at an annual or a special
meeting of stockholders called for that purpose,
and after each stockholder has been notified in
the manner prescribed for notifying stockhold-
ers; and in addition to said notice there shall be
published in some newspaper in the town or city
where the principal office of said corporation is
located, once a week for four weeks prior to the
time of holding said meeting, a notice stating
that at said meeting so called an increase of the
stock or an issuance of the bonds of the road
will be considered, either or both. No action
contemplated under this section, looking to an
increase of stock or issuance of bonds, shall be
legal unless there shall be present at said meet-
ing a majority of stock, represented in person
or by written proxy. Acts 1892, p. 41.
Cross References. — As to what is personalty, see § 364(-.
As to when transfer of stock complete, see § 2219. As to
how capital stock of street railroads increased, see § 2601.
Amendment of Charter. — The requirements of this sec-
tion for two-thirds vote has no application to the amend-
ment of a charter under § 2596. Alexander v. Atlanta.
etc., R. Co., 108 Ga. 151, 33 S. E. 866.
Waiver of Notice. — The provision of this section re-
quiring notice of meeting of stockholders of railroad to
authorize the creation of a bonded indebtedness, may be
waived by them so far as their interest is concerned.
Georgia Granite R. Co. -v. Miller, 144 Ga. 665, 87 S. E-
897.
Cited in Hilton v. Sylvania, etc., R. Co., 8 Ga. App. 10,
14, 68 S. E. 746.
DIVISION 3.
Corporate Powers of Railroads.
§ 2584. (§ 2166.) Powers, etc., when to cease.
— All the powers and privileges and said certifi-
cate of incorporation of said railroad company
shall cease and determine at the expiration of
three years from the date of said certificate, if
at the expiration of said three years said com-
pany has not constructed, equipped, and are not
operating the same for at least 15 miles of said
road, or the entire road, if the same be of less
length than 15 miles; provided the Secretary of
State, for cause shown, ma}- relieve any forfei-
ture above provided for and extend .the time of
construction, equipping and operating said 15
miles of road, or .the entire road if the same be
of less length than 15 miles of any such railroad
company which has come within the provisions
of the above clause for a period of three years.
Only two such extensions shall be granted in
favor of railroad corporations which have become
subject to such forfeiture during the past three
years. Such relief may be granted in favor of
5]
§ 2584(1)
CORPORATE POWERS OF RAILROADS
§ 2585
railroad corporations which have become sub-
ject to such forfeiture during the last past three
years. Such relief shall not be granted unless
applied for within one year after cause for for-
feiture has arisen; provided the rights, powers
and privileges granted said corporation shall not
continue for a longer period than 101 years, un-
less the same be continued by the laws of force
at the expiration of 101 years. Provided, That
the forfeitures of said section shall not be ap-
plicable to a company heretofore or hereafter
incorporated to build a road to run for its en-
tire length in one county only, with a terminus
in a city of more than eighty-nine thousand
(89,000) population by any census heretofore or
hereafter taken, if such railroad was placed in a
receiver's hands before completion. Acts 1892,
p. 42; 1903, p. 34; 1910, pp. 109, 111; 1913, pp. 32,
52.
As to how charter forfeited, see § 2242.
Editor's Note. — This section was amended by the Acts
of 1910, p. 109, so as to fix the period for the exercise of the
powers and privileges conferred by the certificate of In-
corporation of Railroad companies as therein provided at
three years instead of two, by making this amendment
apply to all certificates heretofore granted which are still
of force under the extension provided for in said amendment
of the Acts of 1903, p. 34, and to regulate the time that
railroad charters become dormant and to provide how for-
feitures may be presented. Portions of the Act of 1903, p.
34, were stricken by this act of 1910. The words "in favor
of railroad corporations which have become subject to
such forfeiture during the past three years" following the
word "granted" near the middle of the section, were added.
The act of 1910 in repeating the section as amended
changes the language slightly in other particulars not pro-
vided for in the enacting part of the acts.
The Acts of 1913, p. 32, provides that two extensions may
be granted instead of one.
The Acts of 1913, p. 52, which adds the proviso at the
end of this section, makes no reference to the first act of
1913, and in repeating the section as amended omits the
amendment contributed by the first act.
The section here contains all the amending acts, properly
inserted.
Length of Road. — This section contemplates that there
may be railroads more than fifteen miles in length, or less
than that length. Bridwell v. Gate City Terminal Co., 127
Ga. 520, 522, 56 S. E. 624.
§ 2584(1). Application and effect of amend-
ments.— The amendments of § 2584 by Acts 1910
and 1913 shall apply to and take effect upon the
certificate of incorporation heretofore granted
under the original Act, and amendment thereto
of August 17th, 1903, which are still of force un-
der the extension provided for in said amend-
ment of August 17th, 1903. Acts 1910, pp. 109,
112; 1913, pp. 32, 34.
§ 2585. (§ 2167.) Powers of such roads.— Said
railroad company shall be empowered —
1. To cause such examinations and surveys to
be made for the proposed railroad as shall be
necessary to the selection of the most advan-
tageous route, and for such purposes to be em-
powered by its officers, agents, servants or em-
ployees to enter upon the land or water of any
person for that purpose: Provided, that said
company shall be responsible for all damage
done by injury to property.
As to location and terminal approach, see § 2594.
2. To take and hold such voluntary grants of
real estate and other property as may be made
to it, to aid in the construction, maintenance,
and accommodation of said road; but the real
estate received by voluntary grant shall be held
and used for the purpose of such grant only.
3. To acquire, purchase, hold, and use all such
real estate and other property as may be neces-
sary for the construction and maintenance of
said road, and the stations, wharves, docks,
terminal facilities, and all other accommodations
necessary to accomplish the object of said cor-
poration, and to condemn, lease, or buy any land
necessary for its use.
Cross References. — As to disputed right of way, see §
2588. As to change of direction and route, see § 2589. As
to condemnation of private property generally, see § 5206.
See also, § 6388.
Quantity of Land Necessary.— The exact quantity of
land that may be necessary for the construction and
maintenance of stations, terminal facilities, and the like
can not be definitely fixed, even by prescribing a maximum
amount, as in case of the right of way; and therefore the
General Assembly has prescribed by this paragraph that
the company may acquire as much "as may be necessary"
for this purpose. A-tlantic, etc., R. Co. v. Penny, 119 Ga.
479, 482, 46 S. E. 665. See next paragraph.
Interest. — Certain expressions occur in this provision
from which it might be argued that the condemnation by
a railroad company for a right of way carried something
more than a mere easement. Georgia Granite R. Co. v.
Venable, 129 Ga. 341, 345, 58 S. E. 864. But, see note un-
der paragraph 4.
A lessee of a railroad company can not exercise the
power of eminent domain, conferred by the legislature on
the lessor, without legislative authority for that purpose.
Harrold v. Central R. Co., 144 Ga. 199, 86 S. E. 552.
Condemning Property of Corporation. — The power of
condemnation conferred by this paragraph and paragraph
6 may be exercised by a railroad company to appropriate
to its use not only the property of an individual, but also
the property of a corporation. Atlanta, etc., R. Co. v.
Atlanta, etc., R. Co., 124 Ga. 125, 129, 52 S. E. 320.
Same — Another Railroad. — The property of another
railroad company may be condemned if the property thus
sought to be acquired is not actually used by the other
company for railroad purposes, and will not be needed by
that company for such purposes in the immediate future.
Atlanta, etc., R. Co. v. Atlanta, etc., R. Co., 124 Ga. 125,
129, 52 S. E. 320.
Lease of Land for Terminal. — A railroad chartered un-
der the general law could accept a lease of land for use as
a terminal yard, from another railroad which had power
under its charter to make the lease. Georgia R., etc., Co.
v. Maddox, 116 Ga. 64, 42 S. E. 315.
Cited in Savannah, etc., Co. v. Southern Ry. Co., 148
Ga. 180, 96 S. E. 257; Piedmont Cotton Mills v. Georgia
Ry., etc., Co., 131 Ga. 129, 141, 62 S. E. 52.
4. To lay out its road not exceeding in width
two hundred feet, and to construct the same, and
for the purpose of cuttings and embankments,
and for obtaining gravel and other material, to
take as much land as may be necessary for the
proper construction, operation, and security of
said road; or to cut down any trees that may be
in danger of falling on the track or obstructing
the right of way, making compensation there-
for as provided by law.
See notes and references under par. 3 of this section.
Meaning of Right of Way. — Right of way is construed
as amounting only to an easement appurtenant to the
land, however extensive its duration and however ex-
clusive and paramount may be the rights conveyed for
the necessary purposes intended. Central R. Co. v. Law-
ley, 33 Ga. App. 375, 126 S. E. 273.
Width. — The railroad company is allowed to appropriate
under this paragraph for a right of way a strip of land
not exceeding in width two hundred feet. Whether a less
quantity shall be taken for this purpose is left to the discre-
tion of the company. Atlantic, etc., R. Co. v. Penny, 119
Ga. 479, 46 S. E. 665.
Injunction against Abuse of Discretion. — If the com-
pany abuses the discretion vested in it by this paragraph
and that preceding, a court of equity may grant injunc-
tion. Atlantic, etc., R. Co. v. Penny, 119 Ga. 479, 46 S.
E. 665.
Cited in Savannah, etc., Co. v. Southern Ry. Co., 148 Ga.
180, 96 S. E. 257.
[ 636
§ 2585
CORPORATE POWERS OF RAILROADS
§ 2585
5. To construct its road across, along, or upon,
or to use any stream of water, watercourse,
street, highway, or canal which the route of its
road shall intersect or touch: Provided, no rail-
road shall be constructed along and upon any
street or highway without the written consent
of the municipal or county authorities, and when-
ever the track of any such road shall touch, in-
tersect, or cross any road, highway, or street, it
may be carried over or under, or cross at a grade
level or otherwise, as may be found most ex-
pedient for the public good.
Cross References.— As to change of general direction and
route, see § 2589. As to general corporate powers of canal
companies, see § 2370. As to appropriation of public hign-
ways, etc., see § 2686.
Compensation Must Be Paid.— Although the General As-
sembly may empower a commercial railroad company to
occupy the streets of a town or city with the consent of
the municipal authorities, yet such permission is subject
to the constitutional restraint that "private property shall
not be taken or damaged for public purposes without just
and adequate compensation being first paid." Athens
Terminal Co. v. Athens Foundry, etc., Works, 129 Ga.
393, 58 S. E. 891.
If the property of an abutting-land owner will be
damaged by the laying and use of a track in the street,
the railroad company must first pay or tender to such
property owner just and adequate compensation for the
damages consequential upon the construction of the track,
and the uses to which it will be put. Upon failure to pay
or tender the amount of such damages, equity will enjoin
the construction of the track. Athens Terminal Co. v.
Athens Foundry, etc., Works, 129 Ga. 393, 58 S. E. 891.
Use of Street. — Where by virtue of this paragraph, and
a contract with the city, the plaintiff had a right to con-
struct and maintain a railroad track through a street, this
would not authorize the company to use the street for
drilling, switching, or transferring cars. Atlantic, etc., R.
Co. v. Montezuma, 122 Ga. 1, 49 S. F. 738.
Injunction by Abutting Lot Owner. — Under this para-
graph, a lot owner can not enjoin the construction of a
railroad along a street on which his lot abuts, with the
consent of the city council, on the ground that the con-
templated change of grade, also approved by the council,
will result in incidental damages to his lot which have not
been ascertained or paid. Whittaker v. Atlanta, etc., Co.,
143 Fed. 583.
Municipal Charter. — The assaults upon the constitution,
ality of the amendment to the charter of a city, authoriz-
ing municipal assent to the construction of a railroad
track longitudinally in its streets, become immaterial, be-
cause such power inheres in the municipality by force of
this paragraph. Harrold Brothers v. Americus, 142 Ga.
686, 83 S. F. 534.
Cited in Harrold v. Central R. Co., 144 Ga. 199, 86 S.
F. 552. Seaboard Air-I,ine Railwav v. Blackwell, 143 Ga.
.237. 248, S4 S. F. 472.
6. To cross, intersect, or join, or unite its railroads
with any railroad heretofore or hereafter to be con-
structed, at any point in its route, or upon the
ground of any other railroad company, with the
necessary turnouts, sidings, and switches, and other
conveniences necessary in the construction of said
road, and may run over any part of any rail-
road's right of way necessary or proper to reach
its freight-depot, in any city, town, or village
through or near which said railroad may run,
under the limitations hereinafter named; but in
crossing another railroad, either over, under, at
grade level, or otherwise, it shall be at the ex-
pense of the company making the crossing, and
in such way and manner, at the time of construc-
tion, as not to interfere with said railroad in its
regular travel or business.
Cross References. — As to disputed right of way, see §
2588. As to railroads joining tracks, see § 2656. As to
how right to connect switches enforced, see § 2658. See
also, §§ 2664, 2671, 2672.
Section Not Repealed. — This section was not repealed by
the railroad-commission act of 1908, § 2664. Savannah, etc.,
Co. v. Southern R. Co., 148 Ga. 180, 96 S. F. 257.
Right to Join Tracks Not Absolute. — The right of a
railroad company to join its tracks with the tracks of
another railroad company is not absolute in all circum-
stances and without qualification. Savannah, etc., Co. v.
Southern R. Co., 148 Ga. 180, 96 S. F. 257.
Inquiries by Court of Equity. — Where a terminal com-
pany seeks, under the right of eminent domain, to make
an additional connection with the main- line track of the
other railroad company at a point within the length of a
city block from the present switch connection, and, in
order to do so, finds it necessary to cross two spur-tracks
of the railroad company leading from its main line, a
court of equity will inquire whether a reasonable necessity
exists for the additional connection, and whether the ad-
ditional connection, if made, will materially interfere with
the railroad company in the discharge of its public duties
and in the free exercise of its franchises. Savannah, etc.,
Co. v. Southern R. Co., 148 Ga. 180, 96 S. F. 257.
Extending Road into Town. — When the charter of a rail-
road company authorizes the construction of the railroad
"to" a given town, the company may construct its line of
road "into" the town; and if in constructing its road into
the town it is necessary to cross the line of another rail-
road in order to reach its terminal point, it may cross
such other railroad under the provisions of this section.
Waycross Air-Line R. Co. v. Offerman, etc., R. Co., 109
Ga. 827, 35 S. F. 275.
Amendment to Charter. — It was held under this section
that an amendment to the charter of a railroad by adopt-
ing the provisions of the general law conferred on such
railroad the power to lease another road. Georgia R., etc..
Co. v. Maddox, 116 Ga. 64, 42 S. E. 315.
Where a charter was amended in certain specified par-
ticulars and also to adopt the provisions of the genera!
railroad law of this State, "as far as applicable," and such
application was granted, this section became incorporated
into its charter, although under the original charter such
right of way could be acquired only by contract, lease, or
purchase. Atlantic, etc., R. Co. v. Seaboard Air-Line Rail-
way, 116 Ga. 412, 42 S. F. 761.
Injunction to Restrain Crossing. — Where a railroad com-
pany is about to cross the track of another railroad com-
pany without having acquired the right to do so, it is
proper to grant an injunction at the instance of the latter
company; but it is error for the court to provide in its
order that the defendant company may cross the track of
the plaintiff upon condition that it put in a certain de-
scribed system of switches. Atlantic, etc., R. Co. v. Sea-
board Air-Line Railway, 116 Ga. 412, 42 S. F. 761.
7. To take and convey persons or property
over their railroads by the use of steam, ani-
mals, electricit}^, or any other mechanical power,
and to receive compensation therefor, and to do
all things incident to railroad business.
8. To erect and maintain convenient buildings,
wharves, docks, stations, fixtures, and machinery,
within or without a city, town, or village, for
the accommodation and use of their passengers
and freight business.
9. To regulate the time and manner in which
passengers and property shall be transported,
and the compensation to be paid therefor, sub-
ject to anjr law of this State upon the subject,
or any rule or regulations governing such mat-
ters by the railroad commissioners of this State.
10. To borrow such sum or sums of money,
at such rates of interest and upon such terms,
as such company or its board of directors shall
deem necessary or expedient, and to execute one
or more trust deeds or mortgages, or both, if
the occasion may require, on said railroad in
process of construction, or after the same has
been constructed, for the amounts borrowed, or
owing by such company. Said company may
make such provisions in such trust deed or mort-
gage for transferring said railroad track, depots,
grounds, rights, privileges, franchises, immuni-
ties, machine-houses. rolling-stock, furniture,
tools, implements, appendages, and appurtenances
[637 ]
§ 2585
CORPORATE POWERS OF RAILROADS
§ 2585(2)
used in connection with said railroad in any man-
ner then belonging to said company, or which
shall thereafter belong to it, as security for any
bonds, debts, or sums of money secured by such
trust deeds or mortgages, as they shall think
proper; and all such deeds of trust and mort-
gages shall be recorded as is provided by law
for the record of mortgages in this State, in each
county through which said road runs; but all
rights to borrow money, issue bonds or other
evidences of debt, and to execute trust deeds or
mortgages to secure the same, shall be exer-
cised within the limitations and in the manner
which shall be prescribed by the law of this
State.
As to corporate stocks and bonds, see § 2665.
Applied in Georgia Granite R. Co. v. Miller, 144 Ga.
665, £7 S. D. 897.
11. In case of sale of any railroad heretofore
incorporated by virtue of any general or special
law, or which may hereafter be incorporated by
virtue of this Article, or any part thereof con-
structed or in course of construction, or by
virtue of any trust deed, or any foreclosure of
any mortgage thereon, or any judicial sale, the
party or parties acquiring titles under such sales,
and their associates, successors, or assigns,
shall have or acquire thereby, and shall exercise
and enjoy thereafter, the same rights, privileges,
grants, franchises, immunities, and advantages
in or by said trust deed enumerated and con-
veyed, which belonged to and were enjoyed by
the company making such deed or mortgage, or
contracting such debt, so far as the same relate
or appertain to that portion of said road or the
part or line thereof mentioned or described and
conveyed by said mortgage or trust deed, and no
further, as fully and absolutely in all respects as
said railroad company, officeholders, sharehold-
ers, and agents of such company might or could
have had, had not such sale or purchase taken
place: Provided, that nothing in this Article
shall be construed to reserve any exemption from
taxation, either State, municipal, or county, or
any special rights, privileges, and immunities
that are not herein authorized to be granted to
each and all railroads alike, in conformity with
the present Constitution of Georgia.
As to rights acquired by purchase, see § 2927.
Necessity for New Charter. — Under this paragraph the
party or parties acquiring by purchase the title to the
property and franchise of a railway company, sold under
judicial process, may, if they choose, operate the railroad
without obtaining a new charter. If they do this, they
are, of course, responsible to the public and to their em-
ployees for the manner in which their business is con-
ducted. Watson v. Albanv, etc., R. Co., Ill Ga. 10, 12,
36 S. E. 324.
Cited in Harrold v. Central R. Co., 144 Ga. 199, 86 S. 15.
552.
12. Such purchasers, their associates, or as-
signs, may organize anew by filing a petition
with the secretary of State, requesting to be
substituted for the original petitioners and
stockholders, with all their powers, rights, privi-
leges, duties, and liabilities under this Article,
when said new incorporators may proceed anew
by electing new directors as provided by this ar-
ticle, and may distribute and dispose of stock, and
may conduct their business generally as provided
by this Article, and such purchaser or purchasers
and their associates shall thereupon be a cor-
poration, with all the powers, privileges, and
franchises conferred by, and be subject to the
provisions of this section. But no debt, trust
deeds, mortgages, or other liens shall be made
or created by the first railroad company, or by
the purchasers, except on the terms and condi-
tions as prescribed in section 2583. Acts 1892
p. 43.
See § 2928.
"Purchasers, etc., Shall Be a Corporation."— The phrase
declaring that the "purchasers and their associates shall
thereupon be a corporation" means, that they shall be a
corporation duly authorized to exercise the franchises of
a railway company only after having proceeded to elect di-
rectors, etc., as in this paragraph expressly provided. Wat-
son v. Albany, etc., R. Co., Ill Ga. 10, 12, 36 S. 3. 324.
Proceeding Anew — The purchasers of a railroad were,
under the provisions of this paragraph, given the right
to "organize anew" by filing the prescribed petition with
the secretary of State; and upon so doing, the "new in-
corporators" were further authorized to "proceed anew"
by electing directors, distributing and disposing of stock,
and conducting generally the business of the newly-formed
corporation. Watson v. Albany, etc., R. Co 111 Ga 10
11, 36 S. D. 324.
Cited in Harrold v. Central R. Co., 144 Ga. 199, 86 S.
I). 552.
§ 2585(1). Authority to build, relocate, etc. —
Any railroad company owning or operating, or
which may hereafter own or operate a railroad
or any part thereof, in this State, whether such
company be chartered under the laws of the
State of Georgia or under the laws of any other
State or States, be and it is hereby authorized
and empowered to reconstruct its lines or tracks,,
or any of them, to build one or more additional
main tracks, and to relocate any line or lines or
portions of a line or lines, and to build embank-
ments for the purpose of avoiding trestles upon
which such railroads may be constructed, or to
widen cuts where necessary for proper construc-
tion or maintenance; to build and maintain such
additional depots, tracks and terminal facilities
as may be necessary for the proper accommoda-
tion of the business of the company; to con-
struct, maintain and operate tracks for the pur-
pose of connecting two or more lines of rail-
road operated by the same company not more
than ten miles apart; provided, however, that
under the provisions of this Act no railroad
company shall be authorized to so change the
location of an existing line as to leave off of the
line of railroad to be operated by it any of the
passenger or freight stations now existing un-
der the same without the express approval of
the railroad commission of this State, and pro-
vided further, that the right of condemnation
under this Act shall not be exercised until the
railroad commission of this State, under such
rules of procedure as it may provide, shall first
approve the taking of the property or right of
way designated for the public use or uses de-
sired. Acts 1914, pp. 144, 145.
§ 2585(2). Power to acquire property; con-
demnation.— For the purpose mentioned in the
foregoing section, authority and power are here-
by^ granted to such railroad companies to ac-
quire by purchase or gift, and to hold such real
estate as may be necessary, and power and au-
thority are also granted to such railroad com-
panies to acquire such real estate as may be
necessary for all of the purposes mentioned in
the foregoing section, if the same cannot be ac-
[ 638 ]
§ 2585(3)
CORPORATE POWERS OF RAILROADS
§ 2589
quired by purchase or gift, by condemnation in
the manner provided in Sections 5206-5235, in-
clusive, Code of Georgia, 1911, Volume I, for the
condemnation and taking of private property for
public purposes. Acts 1914, pp. 144, 145.
§ 2585(3). Powers are cumulative. — The
powers and authority conferred by this Act are
in addition to the powers and authority which
railroad companies may have by virtue of then-
charters, or by virtue of the general laws of this
State, as they now exist. Acts 1914, pp. 144, 145.
§ 2586. (§ 2168.) Purchasers, how incorporated.
— The application for incorporation by the pur-
chaser or purchasers may be made by said pur-
chaser or purchasers alone, or with such as-
sociates as may be desired, and the petition shall
set forth only the facts showing the sale and
purchase as in this section provided. If the pur-
chasers desire any additional powers not con-
tained in the original charter of the railroad com-
pany, but which may be obtained under this
Article, the said petition shall set forth specific-
ally what additional powers are so desired. The
petition shall be verified by one of the pur-
chasers or by his counsel. When the petition is
filed as aforesaid, the secretary of State shall
examine the same and issue a certificate under
the great seal of the State in the form prescribed,
varied to suit the particular case. The petitioners
shall pay to the treasurer of the State a fee of
fifty dollars for this service. Acts 1894, p. 65.
As to how charters amended, see § 2197.
Necessity for Certificate. — The issuance by the secretary
of State of a certificate of incorporation to those who had
purchased at judicial sale the property and franchises of a
railway company does not, ipso facto, create a corpora-
tion authorized to operate the railroad and exercise the
franchises of that company. Such a corporation does not
come into complete existence until after organization un-
der the certificate in the manner prescribed by law. Wat-
son v. Albany, etc., R. Co., Ill Ga 10, 36 S. E. 324.
§ 2587. (§ 2169.) Extensions and branch roads.
— Every railroad company may extend its rail-
road from any point named in the petition for
charter, or may build branch roads from any
point or points on its line of road. Before mak-
ing any such extensions or building any such
branch roads, said company shall, by resolution
of its board of directors, to be entered in the
records of its proceedings, designate the route
of such proposed extension or branch, and ad-
vertise same in all of the counties through which
said extension or branch road will run, for the
time and in the manner provided by section 2578,
and file a certified copy of such resolution and
advertisements in the office of the secretary of
State, which shall be by him recorded as original
petitions for charters are filed, and said company
shall pay to the treasurer of the State for the
same a fee of twenty-five dollars for each ex-
tension or branch road. Thereafter said rail-
road shall have the right, within one year from
the filing of said resolution with said secretary,
to begin the construction and equipment of said
branch or extension, and if they fail to construct
as much as twenty miles within two years, or
complete the same if it be less in length than
twenty miles, the powers and privileges to do so
shall cease and determine. For the purpose of
such extension or branch road said company
shall have all the rights and privileges of con-
demning rights of way or acquiring the same,
provided for constructing and building the main
line. All the provisions of this Article relative
to the issuance of stocks and bonds on the road
authorized under the original petition for incor-
poration shall be applicable to, and control the
issuance of stocks and bonds on said proposed
extensions. Acts 1892, p. 45.
As to charters revived or amended becoming subject to
the constitution, see § 6465. As to stock transferable, sec
§ 2583. As to corporate stocks and bonds, see § 2665. As
to extension of lines of street or suburban railroads, s«.-t:
§ 2603.
§ 2588. (§ 2170.) Disputed right of way, etc. —
In the event any company does not procure from
the owner or owners thereof, by contract, lease,
or purchase, the title to the lands, or right of
way, or other property necessary or proper for
the construction or connection of said railroad
and its branches or extensions, or its depots,
wharves, docks, or other necessary terminal
facilities, necessary or proper for it to reach its
freight or passenger depot, in any city, town, or
village in the State, as hereinafter provided, said
corporation may construct its railroad over any
lands belonging to other persons, or over such
rights of way or tracks of other railroads as
aforesaid, upon paying or tendering to the owner
thereof, or to his or her or its legally authorized
representative, just and reasonable compensation
for said lands or said right of way. When the
compensation is not otherwise agreed upon, it
shall be assessed and determined in the manner
provided in this Code. Acts 1892, p. 45.
Cross References. — For full treatment of railroad right
of way, see 9 Cum. Dig. 770, 10 Enc. Dig. 750. As to man-
ner of condemnation, see § 5206. As to railroads joining
tracks, see § 2656. See also, §§ 2585, pars. 3, 4, 2589.
Manner Provided in Code. — It is provided by this sec-
tion that in the event the company can not procure from
the owners title to the right of way or other lands neces-
sary and proper for the construction of stations, terminal
facilities, and the like, such property may be acquired in
the manner prescribed in the code. The manner prescribed
in the code is that set forth in § 5206 et seq. Atlantic, etc.,
R. Co. v. Penny, 119 Ga. 479, 482, 46 S. E. 665; Bibb Brick
Co. v. Central Ry. Co., 151 Ga. 83, 84, 105 S. E. 833.
Location of Route. — Where a railroad company has the
right to condemn private property for public uses in the
construction and operation of its road, it has a large dis-
cretion in the selection of a location for its route over
such property ; and unless such discretion has been abused,
it will not be controlled or interfered with by the courts.
Piedmont Cotton Mills v. Georgia Ry., etc., Co., 131 Ga.
129, 62 S. E. 52.
Same — Bad Faith in Selection. — Upon the trial of a case
wherein the owner of the property through which it is
proposed to run such road complains that such discretion
of the company has been abused by it, it is error to ex-
clude testimony relevant and material upon the issue as to
whether or not the company has acted in bad faith in the
selection of such location. Piedmont Cotton Mills v.
Georgia Ry., etc., Co., 131 Ga. 129, 62 S. E. 52.
"The property of another railroad company may be con-
demned if the property thus sought to be acquired is not
actually used by the other company for railroad purposes,
and will not be needed by that company for such purposes
in the immediate future." Atlanta, etc., R. Co. v. At-
lanta, etc., R. Co., 124 Ga. 125, 129, 52 S. E. 320.
Injunction against Condemnation. — Upon the trial of a
case wherein the owner of land seeks to have a party
having the right of condemnation enjoined from condemn-
ing his land, it is not error to admit testimony of such
condemnor that he made an effort, before instituting such
condemnation proceeding, to acquire by contract the prop-
erty sought to be condemned and failed in such effort.
Piedmont Cotton Mills v. Georgia Ry., etc., Co., 131 Ga
129, 62 S. E. 52.
§ 2589. (§ 2171.) Change of general direction
and route. — Said railroad company shall have the
[ 639]
§ 2590
CORPORATE POWERS OF RAILROADS
§ 2594
power to change the general direction and route
of said railroad from that stated in the original
petition, by a two-thirds vote of the capital stock
of said corporation represented in person or by
written proxy at any annual or special meeting
of the stockholders of said corporation, and
when the same is so changed shall have the right
and power to enter upon, condemn rights of
way, and construct said road on the new or
changed line as they had on the original line;
but no change shall be made in any town or city
after the road has been constructed, without the
•consent of such town or city expressed through
its proper authorities; and in case the route is
changed after grading is commenced, compensa-
tion shall be made to all persons owning lands
on the original route which have been injured by
such grading or other work on such original
route. If no agreement can be made, such
amounts are to be ascertained in the method
provided for condemning right of way. Acts
1892, p. 48; 1903, p. 36.
See §§ 2585, par. 5, 2588. As to method of condemnation,
see § 5206.
Amendment of Charter. — The requirement of this section
as to a two-thirds vote, has no application to the amend-
ment of a charter under § 2596. Alexander v. Atlanta, etc.,
R. Co., 108 Ga. 151, 156, 33 S. E. 866.
Exhausting Power of Choice. — Where a railroad com-
pany to which has been given the power to choose its
particular route between designated termini has exercised
its discretion in this regard, its power of choice is ex-
hausted, and it can not subsequently change its location
without express legislative authority. Brown v. Atlantic,
etc., R. Co., 126 Ga. 248, 55 S. E. 24.
After Road Constructed and Put in Operation. — This sec-
tion does not authorize a railroad company which obtained
its charter from the secretary of State under the general
law for the incorporation of railroads, after having located,
constructed, and put in operation its road, at its mere vo-
lition to tear up such read, or a section thereof nineteen
miles in length, and relocate the same at a different place;
nor is such authority conferred although the portion of the
road sought to be taken up and relocated lies outside the
limits of a town or city. Brown v. Atlantic, etc., R. Co.,
126 Ga. 248, 55 S. E. 24.
Charter Providing for Road to Run in Easterly Direc-
tion.— Where the charter of a railroad company fixed one
of its termini at a station some distance outside of the
corporate limits of a city, and described the road to be
located as running easterly to a point at or near the cen-
ter of the city, but in fact a line run due east would not
entei the city at all, the corporation had a discretion to
locate the other terminus at a point within the city, at or
near its center; and where a line was located from the
initial point to the terminus so fixed, running in a general
southeasterly direction, this was not a violation of the
charter, nor a change of direction under this section.
Bridwell v. Gate Citv Terminal Co., 127 Ga. 520, 56 S. E-
624.
§ 2590. (§ 2172.) Crossings. — In all cases when
said railroad shall cross a highway and the cut-
ting shall make a change in the line of any such
highway, or a change is desirable with a view
to more easy ascent or descent, the said com-
pany may take such additional lands for the
construction of such highways upon a new fine
as may be deemed requisite by the directors, un-
der the mode provided for condemning right of
way and other property. Acts 1892, p. 49.
§ 2591. (§ 2173.) Contracts to connect, merge,
or consolidate with, or purchase, etc., other com-
panies.— Said railroad company shall have the
power to make contracts with any railroad com-
pany which has constructed or shall hereafter
construct any railroad within this State or any
other State, that will enable said company to
run their roads in connection with each other,
and merge their stocks, or to consolidate with
any such company within or without this State,
or to lease or purchase the property of any other
such company and hold, use, and occupy the
same in such manner as they may deem most
beneficial to their interest: Provided, that no
railroad shall purchase a competing line of rail-
road, or enter into any contract with a competing
line of railroad calculated to defeat or lessen
competition in this State; and any violation of
this section shall subject the corporation to all
the penalties incident to such violation of the
law. Acts 1892, p. 49.
Cross References.— For full treatment of leases, merger
and sales of road and rolling stock and running powers,
see 9 Cum. Dig. 784, 10 Enc. Dig. 764. As to buying stock-
in other corporations, see § 6466. As to electric railway
companies controlling other like companies, see §§ 2607-
2610, 2614. As to liability of lessee to burdens of lessor
corporations, see § 2227. As to liability of lessor, see §
2228. See also, §§ 2597, 2598.
Lease. — Under the charter of a railroad company and
the amendment thereto adopting the general law including
this section it has lawful authority to lease to another its
franchises as to the transportation of both freight and
passenger on another road. Georgia, etc., R. Co. v. Maddox,
116 Ga. 64, 42 S. E. 315.
Cited in State v. Central Ry. Co., 109 Ga. 716, 729, 35 S.
E. 37. Gregory v. Georgia Granite R. Co., 132 Ga. 587, 64
S. E. 686; Bridwell v. Gate City Terminal Co., 127 Ga.
520, 56 S. E. 624.
§ 2592. (§ 2174.) Own and operate steamboats.
— Such companies may build, construct, and run
as part of their corporate property such number
of steamboats or vessels as they shall deem
necessary to facilitate the business operations of
such company or companies. Acts 1892, p. 4-9.
Contracts to Operate Steamboat. — It was held under this
section that there was, no public policy which prohibited a
railroad company from entering into a contract with a
firm, by which the latter was to acquire and operate a
steamboat, and each party was to receive and deliver its
freight to the other at the usual rates, in consideration of
which the railroad company agreed to erect a hoist for
the speedy and economical handling of freight between the
cars. Graham v. Macon, etc., R. Co., 120 Ga. 757, 49 S.
E. 75.
§ 2593. (§ 2175.) Custody of books.— The secre-
tary or other officer or agent of said company,
who is the custodian of the books, records,
papers, or other property of said company, shall
keep the same in his possession at all times
during business hours; have the same ready to
be exhibited to any officer, director, or commit-
tee of stockholders of said company, and furnish
them or either of them with transcripts from the
records of proceedings of the board of directors
under his official hand and seal, on the payment
to him of the same fee as that provided by law
for the clerk of the court for transcripts from the
records of his office; and the said secretary shall,
on resigning his office or otherwise vacating the
same, make over all such books, records, papers,
and all other property of the corporation, which
are in his possession, to his successor in office,
or, when no successor has been appointed or
elected, to the board of directors, if any, or to
the person or persons appointed by the stock-
holders of such company. Acts 1892, p. 49.
§ 2594. (§ 2176.) Location and terminal ap-
proach.— In selecting the route of said railroad
from and to where said road is to be built, and
in selecting the general route and in constructing
said road, if another railroad is already con-
[640]
2595
CORPORATE POWERS OF RAILROADS
§ 2597
tructed, or route selected and chartered between
aid points, the general direction and location of
he railroad shall be at least ten miles from the
ailroad already constructed or laid out and
elected to be constructed; but this section shall
ot be construed to refer to any point within ten
liles of either terminus, or to prevent said roads
rom running as near to each other for the first
en miles from either terminus as the interest
f such company building the new route may
ictate: Provided, however, that whenever the
onditions imposed by this section are imprac-
icable by reason of the physical conformation
f the country surrounding any initial or
erminal point, or by reason of the number of
ailroads centering in an initial or terminal point,
nd the railroad companies interested fail to
gree, then and in that case this section shall
ot apply; but in all such cases the location of
uch proposed new railroad with reference to
litial or terminal points shall be made and fixed
nder the order and by direction of the railroad
ommission of this State, which shall locate said
ew railroad on such a route as may be found
racticable, and as will the least interfere with
xisting lines: Provided further, that the power
erein given to the railroad commission shall
nly extend to fixing and providing the location
y which any new railroad may have access to
ither of its terminal points; and nothing here-
l shall be so construed as to otherwise change
he general policy of this State, which requires
he general direction and location of railroads
ought to be constructed, to be ten miles from
railroad already constructed. Acts 1895, p. 60.
See §§ 2664, 2600.
Parallel Roads. — This section can only apply to railroads
rhich run practically parallel with each other. Waycross
kir-Line R. Co. v. Offerman, etc., R. Co., 109 Ga. 827, 831,
5 S. E. 275.
Same Terminal Points. — This section has application only
men the two railroad companies involved connect by
heir lines the same terminal points. Hawkinsville, etc.,
I. Co. v. Waycross Air-Line R. Co., 114 Ga. 239, 39 S.
J. 844.
A road being only about three miles in length, does not
all within the restriction contained in this section. Brid-
/ell v. Gate City Terminal Co., 127 Ga. 520, 56 S. E. 624.
Tramroad of Private Corporation. — This section does not
irevent a purely private corporation from constructing,
nd itself operating for its own exclusive use upon its
wn land, a tramroad. Waycross Air-l,ine R. Co. v.
Southern Pine Co., Ill Ga. 233, 36 S. E. 641.
Injunction lies against an interference with the route by
ocating another line within the distance prohibited by
his section. Waycross Air-Iyine R. Co. v. Offerman, etc.,
?. Co., 109 Ga. 827, 35 S. E. 275.
§ 2595. (§ 2177.) Exercise of franchises, etc.,
i other States. — Said railroad company may
xercise all its rights, franchises, and privileges
n any other State or Territory of the United
States, under and subject to the laws of the
state or territory where it may exercise or at-
empt to exercise the same, and may accept from
my other State or Territory, and use any other
dditional power and privilege applicable to the
'.arrying of persons and property by railway,
iteamboats, and ships in said State, Territory,
>r the high seas, or otherwise applicable to the
)perations of said company as herein provided.
\cts 1892, p. 50.
§ 2596, (§ 2178.) Privileges granted to railroad
:ompanies already incorporated.; — Any railroad
:ompany that has been already incorporated,
Ga. Code— 21
whether by act of the General Assembly incor-
porating the same by name or under the provi-
sions of the general railroad law of the State,
and whether organized or not, is hereby declared
to be a legal and subsisting corporation under
the laws of Georgia, and may amend its charter
either by adopting the provisions of this article
or by extending the time of expiraton of its
original charter for a period of fifty years, and
when it so amends its charter it may retain its
original organization and the same amount of
capital stock provided for in its original charter,
and any other powers and privileges, except ex-
emption from taxation, granted in its original
charter, which may not be in conflict with chis
Article or any other act relating to the powers
and duties of railroad companies, and such
amendments shall be without prejudice to any
of its prior rights or contracts; and the provi-
sions of this Article may also be adopted by any
person or persons now owning or operating a
railroad in this State, without prejudice to such
organization as they may have already effected,
and without prejudice to their existing contracts
and obligations. Whenever any railroad com-
pany desires to amend its charter, or any person
or persons desire to adopt the provisions of this
Article as above provided, it or they shall file a
petition with the secretary of State, setting forth
particularly in what manner it is desired to
amend or adopt the provisions of this Article.
When such petition is filed, the secretary of
State shall issue to said company or persons,
under the great seal of the State, a certificate
setting forth the manner in which said charter
is amended, if the petition be for amendment;
or if the petition be to adopt the provisions of
this Article, then a certificate setting forth that
said persons are a body corporate with all the
powers, duties, and liabilities of this Article.
Before said certificate shall issue, said petitioner
or petitioners shall pay to the treasurer of the
State the sum of fifty dollars. Acts 1892, p. 50.
As to how charters amended, see § 2197. As to naviga-
tion companies, see § 2576.
Cited in Alexander v. Atlanta, etc., R. Co., 108 Ga. 151,
156, 33 S. E. 866. Gardner v. Georgia R., etc., Co.. 117
Ga. 522, 43 S. E. 863.
§ 2597. (§ 2179.) Sale, etc., to, or consolidation
with, other companies. — Any railroad company
incorporated under the provisions of this Article
shall have authority to sell, lease, assign, or
transfer its stock, property, and franchises to, or
to consolidate the same with, those of any other
railroad company incorporated under the laws
of this or any other State or of the United
States, whose railroad within or without this
State shall connect with or form a continuous
line with the railroad of the company incorpo-
rated under this law, upon such terms as may
be agreed upon; and conversely any such corpo-
ration organized under the provisions of this
Article may purchase, lease, consolidate with,
absorb, and merge into itself the stock, prop-
erty, and franchises of any other railroad com-
pany incorporated under the laws of this or any
other State or the United States, whose railroad
within or without this State shall connect with
or form a continuous line or system with the
railroad of such company incorporated under
this law, upon such terms as may be agreed
[641]
§ 2597
CORPORATE POWERS OF RAILROADS
§ 2597(3)
upon. And it shall be lawful for any railroad
company or corporation now or hereafter formed
by the consolidation of one or more railroad
companies, or corporations, organized under the
laws of this State, or under the laws of this State
and any other States, with one or more com-
panies or corporations organized under the laws
of any other State, or under the laws of this and
other States, to issue its bonds and stock as pro-
vided for in this Article, in such amounts as
they may deem necessary for the purpose of
paying or exchanging the same for or retiring
any bonds or stocks theretofore issued by either
of the said companies, or corporations, so
merged, purchased, or consolidated, or for any
other purpose, and to the amount authorized by
the laws of the State under which either of said
companies, or corporations, so consolidated was
organized, and to secure the same, in case of
bonds, by mortgages or trust deeds upon its
real or personal property, franchises, rights, and
privileges, whether within or without this State:
Provided, that no railroad company shall make
any contract under the provisions of this section
with any other railroad company which is a
competing line, that is calculated to defeat or
lessen competition in this State or to encourage
monopoly. Acts 1892, p. 51.
Cross References. — For full treatment of leases, merger
and sales of road and rolling stock and running powers,
see 9 Cum. Dig. 784 et seq., 10 Fnc. Dig. 764 et seq. As
to contracts to connect, merge, or consolidate with or pur-
chase, etc., other companies, see § 2591. As to electric
railway companies controlling like companies, see §§ 2607-
2610, 2614. As to buying stock in other corporations, see §
6466.
Majority Vote of Stock. — Under this section proper
corporate action for the purpose of merger and consolida-
tion of railroads is a majority vote of the • stock of the
corporation. Dady v. Georgia, etc., Railway, 112 Fed. 838.
Where an officer of a corporation is also a member of a
voting trust, a merger or consolidation brought about
through his vote is not necessarily void; but the burden
is on the interest for which he acts to show that the
transaction was free from any taint of wrongdoing, bona
fide, lawful, and for a fair consideration, to the parties at
interest. Dady v. Georgia, etc., Railway, 112 Fed. 838.
Monopoly Not Created. — Where separate lines of rail- '
way start out at a right angle from a seaport, transport
freight and passengers from widely-separated sections of
two states, and no point en either road can be reached in
any reasonable time by a passenger starting out on the
other, such consolidation does not tend to defeat competi-
tion and create monopoly merely because both lines cross
two shallow rivers, on which steamboats carrying freight
and passengers occasionally ply. Dady v. Georgia, etc.,
Railway, 112 Fed. 838.
Rights and Liabilities of New Corporation. — Where by
reason of the consolidation of two corporations one of them
goes entirely out of existence, and no arrangements are
made respecting the liabilities of the one which ceases to
exist, the corporation resulting from such combination
will, as a general rule, be entitled to all the property arid
answerable for all the liabilities of the corporation thus
absorbed. Tompkins v. Augusta So. R. Co., 102 Ga. 436,
30 S. F. 992.
A consolidation under this section between two com-
panies is effected by a written contract providing for the
absorption of one of them by the other, but making no
provision at all for a certain class of liabilities existing
against the absorbed company, these liabilities become
binding upon the new or surviving company, at least to
the extent of the assets of the absorbed company, or of
its ability to perform the contracts out of which such
liabilities arose. Tompkins v. Augusta So. R. Co., 102 Ga.
436, 30 S. F. 992.
Where an agreement in effect provided that the second
party should cease to exist, that all its property, rights
and franchises should go to the first party, and stipulated
that "the first party hereby assumes the payment of all
and every indebtedness of the second party, it being under-
stood and the second party hereby covenanting that there
are no liabilities for unsecured debts and that the only
secured debt and liability is its bonded debt:" Held, that
such an agreement did not provide for the performance of
contracts of carriage embraced in mileage or trip tickets
which had been issued by the second party, and it was
incumbent on the new company to carry out such con-
tracts as if they had been made by itself. Tompkins v.
Augusta So. R. Co., 102 Ga. 436, 30 S. F. 992.
Cited in State v. Central Ry. Co., 109 Ga. 716, 729, 35
S. F. 37; Georgia R., etc., Co. v. Maddox, 116 Ga. 64, 74, 42.
S. F. 315; Bridwell v. Gate City Terminal Co., 127 Ga. 520,
56 S. F. 624; Morrison v. Cook, 146 Ga. 570, 91 S. F. 671.
§ 2597(1). Interurban railroads defined. — In]
terurban railroads are hereby defined to be rail-
roads operated by gas or electricity from, into
and between corporate cities or towns, including
such as operate from a corporate town or city
to and from a corporate city or town in an ad-
joining State. Acts 1916, pp. 44, 45; 1921, pp.
107, 108.
§ 2597(2). Incorporation of Interurban rail-
road companies municipal control. — All the
provisions of the general Act for the incorpora-
tion of railroads, approved December 17th, 1892,
as amended by the Act for the incorporation of
street railroads, approved December 18th, 1894,
and embodied in Code Sections 2577 to 2614 in- 1
elusive, shall apply to and govern in the incor-
poration, control and management of interurban
railroad companies, in so far as the same are ap-
plicable and appropriate thereto. Any number
of persons, not less than ten, who desire to be
incorporated for that purpose, may form a com-
pany as provided in Section 2578 with additional
requirements that they must, in their petition,
specify what cities, towns or villages and in
what streets thereof, they propose to construct
and build said interurban railroad; provided,
that no interurban railroad incorporated under
this law shall be constructed within the limits
of any incorporated town or city, without the
consent of the corporate authorities; and pro-
vided", further, that all such interurban railroad
companies incorporated under this law shall be
subject to all just and reasonable rules and regu
lations by the corporate authorities and liable
for all assessments and other lawful burdens
that may be imposed upon them from time to
time with reference to that part of the interurban
railroad located within the limits of said munici-
pal corporation, and the provisions of said Act
as embodied in the Code, which apply to other
railroads located in the country shall apply to
it so far as that portion of its road located in the
country is concerned, and provided, further, only
such of the powers and franchises that are con
ferred by this law shall belong to said street rail
road companies as shall be necessary. Acts 1916,
pp. 44, 45; 1921, pp. 107, 108.
§ 2597(3). Gas or electric power. — Interurban
railroad companies may use gas or electricity in
propelling their engines, turning machinery, and
other purposes, and may generate gas or elec-
tricity for heat, light or power, and may generate
and furnish, for a reasonable compensation, gas
and electric heat, light and power to consumers
thereof, and to that end may operate gas and
electric plants, and generate and furnish gas and
electric lights and power to any county, townjfi
or city and also to corporations, companies and
private citizens, and may charge and collect rea-lls
[642]
} 2597(4)
SURRENDER OF FRANCHISE
§ 2599(3)
ionable compensation for the same to be fixed
.nd determined by the railroad commission of
he State of Georgia. Acts 1916, pp. 44, 4(5;
921, pp. 107, 109, 110.
§ 2597(4). Additional powers. — Interurban
ailroad companies may buy, lease, own, hold
Liid use such property as may be necessary or
.onvenient to the exercise of the foregoing
>owers, including the right to occupy and use
my street, road or public place, subject to the
•.onditions herein imposed and also the laws of
:minent domain. Acts 1916, pp. 44, 46; 1921,
>p. 107, 110.
§ 2597(5). Jurisdiction of railroad commission;
>enefits extended; Western & Atlantic Rail-
oad. — Nothing in this law shall be construed as
lepriving or limiting in any way the jurisdiction
►f the Railroad Commission of Georgia over
laid companies, but all of the laws of this State
vhich apply to steam railroads and to street and
uburban railroads, as far as applicable or ap-
iropriate to interurban railroads shall apply
hereto, unless interurban railroads shall be ex-
>ressly excluded from the provisions of said laws
>y the terms thereof, and the benefits of this
aw shall extend to all companies heretofore in-
:orporated in this State with the power to build
>r operate electric street and suburban railroads
ind which may now operate street and suburban
ailroads partly in an incorporated town or city
ind extending through the country to another
ncorporated town or city including such as
)perate from a corporate city or town in Georgia
o and from a corporate city or town in an ad-
orning State, provided that the provisions of
his law shall never be construed to affect, change
)r repeal the provisions of the Act of the Gen-
:ral Assembly approved August 11th, 1915, pro-
libiting the paralleling of the W. & A. R. R. so
ong as the same remains the property of the
State, and the Secretary of State in issuing any
>roposed charter under the provisions of this
aw shall be controlled and governed by the pro-
visions of said Act approved August 11th, 1915,
n so far as said Western & Atlantic Railroad
nay be affected or any other railroad or trans-
udation system that may hereafter be acquired
)r owned by the State; and provided, further,
hat no interurban railroad existing now or
:hartered under the provisions of this law, shall
tcquire by purchase, lease or otherwise any ex-
sting interurban or street railroad, or any here-
ifter chartered, the effect of which will be to
Darallel the W. & A. R. R. so long as the same
•emains the property of the State of Georgia,
ind the provisions of this law shall not either
lirectly repeal or modify the Act approved Au-
gust 11th, 1915, and nothing in this law shall
iver be used or construed to confer the right on
:he part of any railroad, or interurban railroad
:ompany, to parallel the W. & A. R. R. so long
is it shall remain the property of the State.
Provided, however, that nothing herein shall be
construed to impair any valid, subsisting con-
:ract now in existence between any municipality
ind any railroad company or any street or inter-
irban railroad or railway company, and pro-
vided this Act shall not operate as a repeal of
my existing municipal ordinance. And the
Railroad Commission shall not have the power
and authority under this Act to increase the
fares on the lines of such companies which have
heretofore been fixed by contract between such
companies and any municipality. Acts 1916, pp.
44, 47; 1921, pp. 107, 110.
Editor's Note The act of August 11th, 1915, referred to
in this section, was held unconstitutional in Morrison v.
Cook, 146 Ga. 570. The act purported to amend § 2577 of
the code. See note to that section.
§ 2598. Railroad leases to be recorded. — All
railroad companies in this State, which have al-
ready leased or which may hereafter lease their
property or line of road to another railroad com-
pany or to a private person, shall have the con-
tract of lease or other contract of like nature,
evidencing the change of control and possession
of such property or line of road, recorded in the
clerk's office of the superior court in each county
through which said line of road may run. Acts
1899, p. 54.
§ 2599. Failure to record the lease. — A failure
or refusal to comply with the preceding section
will authorize any person having a right of ac-
tion against said railroad or the lessee thereof,
including any employee of the same, to file and
prosecute said action against said railroad com-
pany in all respects, as if the same were the
proper party defendant, and any plea or other
defense attempting to shift liability to such lessee
or denying control or possession of such prop-
erty or line of road filed either to the suit of a
person belonging to the general public or to a
suit filed by an employee as aforesaid, shall not
avail to protect any such railroad against lia-
bility that fails or refuses to record as provided
in the preceding section.
As to liability of corporation notwithstanding sale or
lease, see § 2228. As to service on leasing railroad, see §
2801. As to lessee's liability to suit, see § 2799.
DIVISION 3A.
Surrender of Franchise.
§ 2599(1). Surrender on order of commission.
— Any railroad corporation chartered by the
Secretary of State of this State, and owning and
operating any railroad, other than a street rail-
road, not over five miles long, in this State, may
cease, temporarily or permanently, to exercise
its franchises and to perform its duties as a com-
mon carrier, and may surrender its franchises to
the State, by order of the Railroad Commission.
Acts 1918, p. 211.
§ 2599(2). Application to be filed.— Before any
such order shall be granted, such corporation
shall file with said commission an application for
the same, verified by the affidavit of the president
and secretary of such corporation, containing a
copy of a resolution adopted by a unanimous
vote of the stockholders of such corporation au-
thorizing such application. Acts 1918, p. 211.
§ 2599(3). Hearing.— Said commission shall
fix a date for the hearing of such application,
and before such date such application shall be
published once a week for four weeks in the
newspaper in which the sheriff's advertisements
are published in each county through which said
railroad may run. Acts 1918, p. 211.
[643]
§ 2599(4)
STREET- RAILROADS
§ 2604
§ 2599(4). Investigation; freedom from debt.
— Said commission shall have authority to fully
investigate the matter of such application and to
grant such an order, if they shall conclude that
the condition of the affairs of such corporation
and the public convenience warrant it. No such
railroad shall be allowed to surrender its charter
as herein provided so long as it owes any debts
whatever. Acts 1918, pp. 211, 212.
DIVISION 4.
Street-Railroads.
(§ 2180.) Street-railroads, how incor-
porated.— All the provisions of the preceding
division shall govern in the incorporation, con-
trol, and management of suburban and street-
railroad companies, in so far as the same are ap-
plicable and appropriate thereto. Any number
of persons, not less than ten, who desire to be
incorporated for that purpose, may form a com-
pany as provided in the preceding division, with
this additonal requirement: That they must in
their petition specify what city, town, or village,
and in what streets thereof, they propose to con-
struct and build said railroad: Provided, that no
street-railroad incorporated under this division
shall be constructed within the limits of any in-
corporated town or city without the consent of
the corporate authorities: And provided further,
that all such street-railroad companies incorpo-
rated under this division shall be subject to all
just and reasonable rules and regulations by the
corporate authorities, and liable for all assess-
ments and other lawful burdens that may be im-
posed upon them from time to time: And pro-
vided further, only such of the powers and fran-
chises that are conferred by said divisions shall
belong to said street-railroad companies as shall
be necessary and appropriate thereto; and in case
any street-railroad incorporated under this di-
vision shall be partly located in an incorporated
town or city and partly located in the country,
then the provisions of the preceding division
which apply to other railroads located in the
country shall apply to it so far as that portion
of its road is concerned: And provided further,
that nothing in paragraph 2594 of the preceding
division, which provides that the general direc-
tion and location of railroads sought to be con-
structed in this State shall be ten miles from a
railroad constructed or laid out and selected to
be constructed, shall be or be held applicable to
electric street, suburban, or interurban railways,
or the selection of the route or the construction
of the same. Acts 1894, pp. 69, 70; 1903, p. 38.
Cross References. — For full treatment of street rail-
ways, see 10 Cum. Dig. 578 et seq., 11 Fnc. Dig. 908 et
seq. As to incorporation of railroads generally, see §§
2577-2597. As to power of General Assembly to authorize
street railways, see § 6448. As to returns of corporations,
see § 2209.
Condemnation. — Suburban and street railroad companies
incorporated under the general law pursuant to this sec-
tion, have power to condemn private property outside of
the limits of incorporated towns and cities. Piedmont Cot-
ton Mills v. Georgia Ry., etc., Co., 131 Ga. 129, 62 S. E. 52.
Taxation by Municipalities. — The municipal authorities
had power, under the second proviso of this section, to
levy and collect an occupation or business tax from street-
railroad companies for the use and occupation of the city
streets by their tracks and cars, when such companies'
principal business was the transportation of passengers
from points within the city limits to other like points.
Savannah, etc., Railway v. Savannah, 112 Ga. 164, 37 S.
E- 393.
§ 2601. Street-railroads; capital stock, how in-
creased.— Any corporation owning or operating
a street or suburban railroad in this State shall
have the right to increase its capital stock from
time to time: Provided, that in no case shall an
increase be made, except by a vote of two thirds
of the capital stock, entitled by the terms of its
charter to vote, at the time outstanding, repre-
sented, either in person or by proxy, at an an-
nual or special meeting of stockholders called
for the purpose, and after each stockholder has
been notified in the manner, if any, prescribed
for giving notice of stockholders' meetings in
the by-laws of the corporation, and in addition
to such notice there shall be published in some
newspaper in the town or city where the prin-
cipal office of said corporation is located, once a
week for four weeks prior to the time of hold-
ing said meeting, a notice stating that at said
meeting an increase of the stock of the company
will be considered. Acts 1902, p. 68; 1925, p. 94.
Cross References. — As to change of name or capital
stock, or place of business of corporations, see § 2201. As
to stock of railroads transferable, see § 2583.
Editor's Note. — This section was amended by the acts of
1925, p. 94, by adding after the words "except by a vote
of two-thirds of the capital stock," the following words:
"entitled by the terms of its charter to vote."
§ 2602. Preferred stock to retire bonds. — Any
such corporation owning or operating a street
or suburban railroad in this State, which now has
an issue of bonds outstanding, may issue pre-
ferred stock, having such terms of preference
as the vote authorizing the issue shall provide,
with which to retire, take up, and replace said
bonds, in whole or in part, with the consent of
the bondholders: Provided, that said preferred
stock shall not be issued for a greater amount
than the par value of the bonds that shall be re-
tired by such stock or the proceeds thereof: And
provided further, that notice shall be given in the
same manner as is prescribed in the preceding
section, and said issue shall be authorized by a
vote of at least two thirds of the capital stock of
said company, at the time issued and outstand-
ing: And provided further, that such preferred
stock shall not be issued for any other purpose
than to take up, retire, and replace said bonds
now outstanding.
§ 2603. Street or suburban railroads, extension
of lines. — Any corporation owning and operating
a street or suburban railroad, situated wholly or
partly in a county contiguous to any State line,
may extend its railroad and appurtenances
into said adjoining state, and may maintain and
operate said railroad and its cars therein, and may
exercise all of its rights, franchises, and privileges
in said State, under and subject to the laws of said
State where it may exercise or may attempt to ex-j
ercise the same, and may accept from any other
State and use any additional powers and privileges,
applicable to the exercise of its franchises and the|
carrying of passengers, and doing such other acts
as are incident to a street or suburban railway.
Acts 1902, p. 69.
See § 2587.
§ 2604. Property in foreign state not taxed. —
Said corporation shall not be required to pay to
[ 644 ]
§ 2605
STREET-RAILROADS
§ 260r,
this State or any county or municipality therein,
any taxes with respect to so much of the prop-
erty or capital stock of said company as shall be
situated or employed in said foreign State.
§ 2605. Free passes for policemen and others.
— It shall not be unlawful for any street-railway
company of this State to issue free transporta-
tion to the members of the police force and fire,
sanitary, and water departments, and the mar-
shals and their deputies, and county police offi-
cers, of cities of this State, over their lines
operated in the cities of the State, when said
cities have regularly organized police forces and
fire, sanitary, and water departments: Pro-
vided, nevertheless, that nothing in this section
contained shall authorize such company to grant
individual members of such police and fire de-
partments any transportation or other special
privilege not participated in by all of the mem-
bers thereof on like terms and under like condi-
tions: And provided further, that all such grants
or concessions shall be made to the governing
authority of such city, for and in behalf of the
members of such police force and fire, sanitary,
and water departments, and formally accepted
by such authority. Acts 1909, p. 168.
As to passes to former employees, see § 2735. As to im-
peachment of judges for receiving free passes, see § 324.
§ 2606. Electric street-railroad companies may
furnish steam. — Electric street-railroad com-
panies, incorporated under the laws of this State,
shall have power, in addition to the powers they
now have, to furnish steam for heating and
power purposes to any person or corporation
within the limits of the counties in which such
corporations operate, with power and authority
to charge and collect reasonable compensation
for the same, and with full power to do any and
all things necessary or convenient to carry the
power herein conferred into full effect, and to
use the streets and public places to lay and main-
tain their pipes and other appliances for convey-
ing and distributing such steam: Provided, that
before any of said companies shall be entitled to
use any of the streets of any city in this State,
the consent of such city shall be obtained. Acts
1903, p. 684.
§ 2608(1). Companies authorized to acquire
stock, etc., in motor-bus corporations. — All elec-
tric street, suburban or interurban railroad com-
panies now or hereafter incorporated under the
laws of this State shall have the power, in addi-
tion to the powers they now have to purchase,
acquire, own, hold, lease, operate, mortgage,
sell, assign, transfer, pledge, or otherwise dis-
pose of motor busses or trackless trolleys, and,
to purchase, acquire, own, hold, mortgage, sell,
assign, transfer, pledge or otherwise dispose of
the capital stock, bonds or other securities or
evidences of indebtedness of corporations organ-
ized to own and operate motor busses or track-
less trolleys, and to issue their own capital
stock or bonds or other securities in payment
therefor, and while the owners of such stock in
such companies, to exercise all the rights of a
stockholder.
Provided, nevertheless, that nothing herein
contained shall be construed to confer upon any
person or corporation any exclusive or irrevoca-
ble right or franchise to operate any motor
busses or trackless trolleys upon the public
highways of this State nor upon the public
streets, lanes or alleys of any municipality, as
the case may be; and such person or corpora-
tion shall in reference to the operating of such
motor busses and trackless trolleys be subject
in addition to its other occupation taxes or other
taxes or assessments, to the same occupation or
other taxes as those engaged exclusively in the
business of operating motor busses or trackless
trolleys; and this Act shall not be construed to
confer any right to use the public streets, lanes
or alleys of any municipality of this State unless
its consent [is] first obtained; and such municipal-
ity, shall have no authority to confer any irrevocable
right to such companies to use such public
streets, lands or alleys. Acts 1924, p. 99; 1925,
p. 219.
Editor's Note. — The first paragraph of this section was
enacted by the Acts of 1924. This act of 1924 was amended
in 1925, the title of such act of 1925 being "an act to amend
the act approved August 13, 1924, entitled 'an act to en-
able * * *' so as to enable electric street, suburban, or
interurban railroad companies, to acquire, own, lease and
operate motor busses or trackless trolleys and for other
purposes." The amending clause follows this title. No
reference is made to the last paragraph of this section
as it now reads or to § 2 of act, which is § 2606 (2) of the
code. Whether the caption of the act contains all the mat-
ter set out in the act seems very questionable.
§ 2606(2). Regulation of public service com-
mission.— And such motor busses and trackless
trolleys when operating by any such railroad
company shall be subject to the rules and regula-
tion of the Public Service Commission of
Georgia that may now be in force or hereafter
promulgated. Acts 1925, pp. 219, 220.
See note to § 2606 (1).
§ 2607. Electric railroad companies may con-
trol other like companies: — By a vote of a major-
ity of the outstanding capital stock, any corpora-
tion, now or hereafter formed under the laws of
this State for the purpose of operating by elec-
tricity a street railroad, suburban railroad, or
interurban railroad, or for the purpose of gen-
erating electricity, may guarantee, purchase, or
otherwise acquire, own, hold, mortgage, pledge,
sell or assign, transfer or otherwise dispose of
all the capital stock, bonds, securities or other
evidences of indebtedness of any such corpora-
tions, and may issue its bonds and stock in pay-
ment therefor; and any electric railroad corpora-
tion, organized under the laws of this or any ad-
jacent State, for the purpose of connecting its
railroad, constructed, or about to be constructed,
with any railroad or railroads constructed by
any other such electric railroad company or
companies, or for the purpose of obtaining motive
power for its operation, may acquire, by lease,
purchase, merger, or consolidation, the prop-
erty, rights and franchises of any other such
electric railroad corporation or corporations, or
of any corporation or corporations formed for
the purpose of generating electricity, organized
under the laws of this or any adjacent State, and
any corporation aforesaid organized under the
laws of this State is authorized in any such case
to dispose, in like manner, of its property, rights
and franchises; provided, that no act shall be
deemed authorized hereunder which shall be in-
hibited by any provision of the Constitution of
[ 645 ]
§ 2608
STREET-RAILROADS
§ 2612
this State or by any provision of the Constitu-
tion or statutes of the United States, or which
shall have the effect or be intended to have the
effect to defeat or lessen competition or en-
courage monopoly. Acts 1909, p. 163; 1910, pp.
95, 96.
As to buying stock in other corporations, see § 6466. As
to power to lease or sell to other companies, see § 2614.
As to contracts to connect, merge or consolidate with, or
purchase, etc., other companies, see § 2591. As to sale,
etc., to, or consolidation with, other companies, see § 2597.
§ 2608. How effected. — No guaranty or acqui-
sition of stock, securities, property, rights, or
franchises of any corporation heretofore organ-
ized shall become effective hereunder until the
expiration of thirty days from the authorization
thereof by the stockholders, nor, if any stock-
holder thereof who shall not have voted in favor
of such action shall within such time file with
the secretarjr of such corporation his written
disapproval thereof, shall such action become
effective until the ascertainment and payment
of the award in this section provided for. If
such disapproval shall be so filed, either such
dissenting stockholder or such corporation may,
within ten days thereafter, apply by petition to
the railroad commission of this State, on fifteen
days notice, for an adjudication of the railroad
commission of the State as to whether the action
so authorized is for the public benefit. If the
railroad commission of the State shall not find
that such action is for the public benefit, the
same shall not become effective unless the con-
sent of all the stockholders shall be given there-
to within thirty days thereafter; but if the rail-
road commission of the State shall find that such
action is for the public benefit, the value of the
stock of such dissenting stockholder, without re-
gard to appreciation or depreciation thereof in
consequence of such action, shall be ascertained
by a proceeding to be held in the county of the
principal office of the corporation, and thereafter
paid to such dissenting stockholder, all in accord-
ance with the provisions of sections 5208, 5221,
5222, 5228, and 5234, all inclusive, and the acts
amendatory thereof, so far as such sections and
acts may be applicable; and thereupon such dis-
senting stockholder shall transfer his stock to
the corporation, to be disposed of by the direc-
tors or to be retained for the benefit of the re-
maining stockholders.
As to when proceedings by minority stockholders al-
lowed, see § 2224. As to power of commission over street
railways, see . § 2662.
§ 2609. How ratified. — Before any acquisition
hereunder of the physical property, rights, and
franchises of any corporation shall become ef-
fective, the directors of the selling and purchas-
ing corporations shall enter into a joint agree-
ment prescribing the terms and conditions there-
of, the name by which the purchasing or con-
solidated corporation shall be known, the num-
ber, names, and places of residence of the first
directors and the officers thereof (who shall
hold their offices until their successors have been
chosen or appointed), the number of the shares
of the capital stock, whether common or pre-
ferred, and the amount or par value of each
share thereof of such purchasing or consolidated
corporation, together with all such other provi-
sions and details as such first-mentioned directors
shall deem necessary to perfect such acquisi-
tion. The said agreement shall thereafter be
considered by the stockholders of each of said
corporations, and if ratified by a vote of a ma-
jority of the stock of each of said corporations,
that fact, together with a statement in the case
of corporations heretofore organized that thirty
days have elapsed from the date of such stock-
holders' action without the filing of any disap-
proval thereof by any stockholder who had not
voted in favor thereof, or that the payment of
any award made by virtue of the preceding sec-
tion has been made, shall be certified upon said
agreement by the secretaries of the respective
corporations, under the seals thereof, and the
agreement so adopted ratified, and certified,
shall be filed in the office of the secretary of
State, who, if he shall be satisfied that the pro-
visions of the two preceding sections have been
complied with in relation to such acquisition, and
that the same is not inhibited by any provision
of the Constitution of this State or of the Con-
stitution and statutes of the United States, shall
thereupon issue his certificate that said corpora-
tions have complied with the provisions of said
sections, and that such purchasing or consoli-
dated corporation shall thenceforth constitute a
corporation by the name provided in said agree-
ment; and thereafter such purchasing or con-
solidated corporation shall be possessed of all
the rights, privileges, powers, and franchises, as
well of a public as of a private nature, and be
subject to all the duties and liabilities, debts and
obligations of each of the corporations partici-
pating in such agreement; and said certificate of
the secretary of State, or a duplicate 'thereof duly
certified, shall be conclusive evidence of the ex-
istence of such corporation in all the courts of
this State.
As to exemplifications of records and documents, see §
5798. As to certificate as evidence of incorporation of
navigation companies, see § 2569. As to secretary of
state seeing that prerequisites complied with, see § 2580.
§ 2610. Bonds of consolidated company. — Any
corporation named therein shall have authority
to issue its bonds, notes, and other evidences "of
indebtedness, and to secure the same by mort-
gage or trust, or otherwise, upon all its prop-
erty or franchises then owned or thereafter ac-
quired, for any corporate purpose thereof, with-
in the limitations and in the manner now or
hereafter prescribed by the laws of this State.
As to corporate stocks and bonds, see § 2665.
§ 2611. (§ 2181.) Electric railroad companies
may sell light and power. — Electric street and
suburban railroad companies, now or hereafter
incorporated, may operate electric plants and
furnish electric light and electric power to any
town or city within the limits of the county in
which such railroad is located, and also to cor-
porations, companies, and private citizens resid-
ing or doing business within the limits thereof,
and may charge and collect reasonable com-
pensation for the same. Acts 1894, p. 70.
See § 2234.
§ 2612. (§ 2182.) May acquire property for the
purpose. — Such companies may buy, own, hold,
and use property necessary or convenient to the
exercise of the foregoing powers.
[ 646]
§ 2613
GEORGIA PUBLIC SERVICE COMMISSION
§ 2618
§ 2613. (§ 2183.) Privileges, how acquired. —
Any railroad company desiring to accept the pro-
visions of this Division, as a part of its charter,
may, by resolution of its boards of directors, filed
with the secretary of State, so signify, and the cer-
tificate of the secretary of State that such resolu-
tion has been filed with him shall be conclusive
evidence thereof and shall clothe such company
with the powers herein contained.
As to privileges granted to railroad companies already
incorporated, see § 2596.
§ 2614. (§ 2184.) Street-railroad's power to lease
or sell to other companies. — All street-railroad
companies may lease or sell their road, franchises,
and other property to any other corporation
created by the laws of this State for street-rail-
road purposes; and their franchises and property
so sold shall remain liable in the hands of the les-
see or purchaser for all debts or claims against
the company making the conveyance. Nothing
in this section shall be construed to authorize
airy such company to sell, lease, or otherwise dis-
pose of any of its property or franchises so as to
defeat or lessen competition, or to encourage
monopoly. Acts 1890-1, p. 170.
Cross References. — As to buying stock in other corpora-
tions, see § 6466. As to control of other like companies,
see § 2607. As to rights and liabilities of lessee and lessor
corporations, see §§ 2227, 2228. As to connection, merger,
consolidation, purchase or sale to or with other companies,
see §§ 2591, 2597.
Defeating Competition. — A lease or sale can not be made
for the purpose of defeating or lessening competition.
Trust Co. v. State, 109 Ga. 736, 35 S. E. 323.
§ 2614(1). Use of electricity, gasoline or gas;
sale of heat, light and power. — Any street rail-
road company, now incorporated or hereafter in-
corporated, may use electricity, gasoline or gas
in propelling their engines, turning machinery,
and for other purposes, and may generate gas or
electricity for heat, light or power, and may gen-
erate and furnish for a reasonable compensation
gas and electric heat, light and power to con-
sumers thereof and to that end may operate gas
and electric plants and generate and furnish gas
and electric light and power to any county, town or
city, and also to corporations, companies and pri-
vate citizens, and may charge and collect reason-
able compensation for the same, to be fixed and
determined by the Public Service Commission of
the State of Georgia. Acts 1923, pp. 128, 129.
§ 2614(2). Ownership and use of necessary
property. — Any street railroad company may buy,
own, hold, lease and use such property as may be
necessary or convenient to the exercise of the
powers bestowed in the foregoing section. Acts
1923, pp. 128, 129.
SECTION 2.
Georgia Public Service Commission.
§ 2615. Commissioners' election. — From and
after August 23d, 1907, the Georgia public serv-
ice commission shall consist of five members to
be elected by the qualified voters of the whole
State who are entitled to vote for memlbers of the
General Assembly, said election to be held un-
der the same rules and regulations as apply to the
election of Governor of the State; and said com-
missioners shall be elected at the first general
election preceding the expiration of their terms of
office respectively. Acts 1878-9, p. 125; 1906, p.
100; 1907, p. 72.
See 3 Cum. Dig. 154, 2 Enc. Dig. 154. As to manner of
election, see § 94.
Editor's Note. — By the acts of 1922, p. 143, herein codi-
fied as § 2670 (1) the name of the "Railroad Commission
of Georgia" was changed to "Georgia Public Service
Commission." The change has been made in this and the
sections following.
New Office Not Created.— The acts of 1906, p. 100, amend-
ing this section creates no new office, but simply provides
a new way of filling an office already existing. With re-
spect to their functions, duties, powers, etc., including the
liability to removal from office and the method of effecting
the same, the officers elected would be subject to the pro-
visions of law existing at the time the method of selection
to office was changed. Gray v. McLendon, 134 Ga. 224,
228, 67 S. E. 859.
Cited in Southern Ice, etc., Co. v. Atlantic Ice, etc.,
Corp., 143 Ga. 810, 815, 85 S. E. 1021.
§ 2616. Terms of office.— The terms of office of
the two additional commissioners provided for in
the preceding paragraph shall expire, one on De-
cember 1st, 1911, and the other December 1st,
1913, and thereafter the terms shall be for six
years each. The Governor, by and with the con-
sent of the Senate, shall appoint the two addi-
tional commissioners, but the appointees shall be
commissioned only until December 1st, 1908, said
positions to be filled for the unexpired terms by
two commissioners to be elected at the regular
general election on the first Wednesday in Oc-
tober, 1908. In order that there may be uniform-
ity of expiration of the terms of all the railroad
commissioners, the term of the commissioner ex-
piring October 15th, 1909, shall be extended to
December 1st, 1909; the term of the commissioner
expiring October 15th, 1911, shall be extended to
December 1st, 1911, and the term of the commis-
sioner expiring October 15th, 1913, shall be ex-
tended to December 1st, 1913, their respective
successors to be elected for full terms of six
years each.
Terms of Office.— Section 3 of the Act of 1918, p. 154, as
amended by the act of 1921, p. 232, which attempts to fix
the term of the members of the public service commission,
being unconstitutional, the beginning of such term is de-
termined by this section. Bennett v. Public Service
Comm., 160 Ga. 189, 127 S. E. 612.
§ 2617. Vacancies. — In case of a vacancy caus-
ing an unexpired term, the same shall be filled by
executive appointment, and the person appointed
shall hold his office until the next regular general
election, and until his successor for the balance
of the unexpired term shall have been elected and
qualified.
See § 155.
§ 2618. (§ 2185.) Suspension of commissioner
from office. — ■ Any commissioner may be sus-
pended from office by order of the Governor,
who shall report the fact of such sus-
pension, and the reason therefor, to the next Gen-
eral Assembly; and if a majority of each branch
of the General Assembly declare that said com-
missioner shall be removed from office, his term
of office shall expire.
See § 2620.
Section Not Repealed. — This section was not repealed by
the Acts 1906, p. 100, providing for the election of com-
missioners by the people instead of being appointed by
the Governor. Nor was it repealed by the Acts 1907, p.
72. Gray v. McLendon, 134 Ga. 224, 67 S. E. 859.
Constitutionality. — This section did not constitute a
[647]
§ 2619
GEORGIA PUBLIC SERVICE COMMISSION
§ 2628
special law and is constitutional in every respect. Gray v.
McLendon, 134 Ga. 224, 67 S. E. 859.
The word "next" in this section, is to be construed in
connection with its context, and means nearest in point of
time; and if a General Assembly is in session when the
suspension is made by the Governor, it is his duty to
make his report to that General Assembly. Gray v. Mc-
Ivendon, 134 Ga. 224, 67 S. E. 859.
Approval of Governor. — Where a resolution is passed by
a majority of the members of both houses, both of
which resolutions declare that a commissioner is removed
from office, the removal is not rendered inoperative be-
cause the resolutions were not approved by the Governor.
Gray v. McLendon, 134 Ga. 224, 67 S. E. 859.
Review by Courts. — The action of the Governor in sus-
pending', and of the majority of the members of the House
and Senate in removing a suspended commissioner, is not
subject to review by the courts. Gray v. McLendon, 134
Ga. 224, 67 S. E. 859.
§ 2619. (§ 2185.) Oath of office.— Said commis-
sioners shall take an oath of office, to foe framed
by the Governor.
§ 2620. (§ 2185.) Qualification of members. —
Said commissioners shall not, jointly or severally,
or in any way, be the holders of any railroad
stock or bonds, or be the agent or employee of
any railroad company, or have any interest in any
way in any railroad, and shall so continue dur-
ing the term of office; and in case any commis-
sioner becomes disqualified in any way, he shall
at once remove the disqualification or resign, and
on failure so to do he must be suspended from of-
fice by the Governor and dealt with as hereinafter
provided. In any case of suspension the Gover-
nor may fill the vacancy until the suspended com-
missioner is restored or removed. Any person
thirty years of age, who is qualified to vote as an
elector in this State, and who is not directly or in-
directly interested in any mercantile business or
any corporation that is controlled by or that par-
ticipates in the benefit of any pool, combination,
trust, contract, or arrangement that has the effect
or tends to increase the cost to the public of car-
riage, heat, light, power, or of any commodity or
merchandise sold to the public, shall be eligible to
membership on said commission, without reference
to his experience in law or railway business. Acts
1878-9, p. 125; 1907, p. 72.
See § 2618 and notes thereto.
§ 2621. (§ 2185.) Salaries.— The salary of each
commissioner, except the chairman of the com-
mission, shall be thirty-six hundred dollars per
annum to be paid from the treasury of the State.
Each of the members of said commission shall
give his entire time to the duties of his office.
Acts 1919, pp. 92, 93.
Editor's Note.— The acts of 1919, p. 92 changed the
salaries of the commissioners from "twenty- five hundred"
to "thirty-six hundred dollars." The words "per annum"
were also added by this act as well as the last sentence of
the section.
§ 2622. Chairman. — It shall be the duty of the
commission to elect from its membership the
chairman of the Georgia public service comm-is-
sion who shall hold the position of chairman for a
term of two years, and who shall give his entire
time to the duties of his office, and who shall re-
ceive therefor during his term as chairman a sal-
ary of five thousand dollars per annum, to be
paid from the State treasury. Acts 1919, pp.
92, 93.
Editor's Note. — This section was amended by the acts
of 1919, p. 92, by striking the word "four" from the old
provision and substituting in lieu thereof, the word "five."
§ 2623. Rate experts. — The commission is au-
thorized to employ one or more rate experts at a
total cost not to exceed four thousand dollars per
annum, for the entire service to be rendered un-
der the direction of the commission.
§ 2624. Attorney for the commission. — The of-
fice of attorney to the Georgia public service com-
mission is hereby created, and the Governor is
authorized to appoint said attorney, whose term
of office shall be for four years and until his suc-
cessor is qualified, and who shall receive a salary
of twenty-five hundred dollars a year, and he may
be removed by the Governor at anjr time.
As to attorney-general representing railroad commission,
see § 2648.
§ 2625. Domicile of the commission. — The
domicile of the Georgia public service commission
is hereby fixed at the capitol of the State in At-
lanta, Fulton county; and no court of this State,
other than those of Fulton county, shall have or
take jurisdiction in any suit or proceeding ibrought
or instituted against said commission or any of
its orders or rules.
As to venue of civil cases at law, see § 5526.
§ 2626. Evidence of reports, schedules, and or-
ders.— The printed reports of the Georgia public
service commission, published by its authority,
shall be admissible as evidence in any court in
Georgia without further proof, and the schedules
of rates made by the commission and any order
passed or rule or regulation prescribed by the
commission shall be admissible in evidence in
any court in Georgia upon the certificate of the
secretary of the commission.
As to records and public documents and exemplications
thereof, see §§ 5797, 5798. As to rates and publication of
same, see §§ 2631, 2632.
Cited in Atlanta v. Georgia Ry., etc., Co., 149 Ga. 411,
100 S. E. 442; Wadley So. Ry. Co. v. State, 137 Ga. 497,
504, 73 S. E. 741.
§ 2627. (§ 2186.) Location of office, clerk, ex-
penses, etc. — Said commissioners .shall be fur-
nished with an office, necessary furniture, and sta-
tionery, and may employ a secretary or clerk at
a salary of eighteen hundred dollars at the ex-
pense of the State. The office of said commis-
sioners shall be kept at Atlanta, and all sums
of money authorized to be paid by this Article
out of the State treasury shall ibe paid only on the
order of the Governor: Provided, that the total
sum to be expended by said, commissioners for
office rent, furniture, and stationery shall in no
case exceed the sum of eight hundred dollars, or
so much thereof as may be necessary, per annum.
Acts 1878-9, p. 125; 1905, p. 95.
See § 2670.
§ 2628. (§ 2187.) Extortion by railroads forbid-
den.— If any railroad corporation organized, or do-
ing business in this State under any act of incor-
poration or general law of this State now in force,
or which may hereafter be enacted, or any rail-
road corporation organized or which may here-
after be organized under the laws of any other
State, and doing business in this State, shall
charge, collect, demand, or receive more than a
fair and reasonable rate of toll or compensation
for the transportation of passengers or freight of
any description, or for the use and transportation
of any railroad-car upon its track, or any of its
[ 648]
§ 2629
GEORGIA PUBLIC SERVICE COMMISSION
§ 2630
branches thereof, or upon any railroad within this
State which it has the right, license, or permis-
sion to use, operate, or control, the same shall be
deemed guilty of extortion, and, upon conviction
thereof, shall be dealt with as hereinafter pro-
vided. Acts 1878-9, p. 125.
Cited in Sorrell v. Central Railroad, 75 Ga. 509; Central
Ry. Co. v. Milledgeville Ry. Co., 138 Ga. 434, 75 S. E. 614;
Southern Bell Tel., etc., Co. v. Beach, 8 Ga. App. 720, 70
S. E- 137.
§ 2629. (§ 2188.) Unjust discrimination forbid-
den. — If any railroad corporation as aforesaid
shall make any unjust discrimination in its rates
or charges of toll or any compensation for the
transportation of passengers or freights of any
description, or for the use of and transportation
of any railroad-car upon its said road, or upon
any of the branches hereof, or upon any railroad
connected therewith which it has the right, li-
cense, or permission to operate, control, or use
within this State, the same shall be deemed guilty
of having violated the provisions of this Article,
and, upon conviction thereof, shall toe dealt with
as hereinafter provided. Acts 1878-9, p. 125.
Cross References — See §§ 2657, 2761, 2630. See 3 Cum.
Dig. 157. As to prohibition of misleading rebates, see §
6467. As to accommodations of passengers, see §§ 2717,
2718. As to storage charge, see § 2651.
Intrastate Rates.— Under § 2630, and this section pro-
hibiting unjust discrimination in rates, the Georgia Com-
mission can not order an intrastate rate which would
discriminate against other intrastate rates, and the fact
that the rate ordered was originally established by the
railroad to promote a new industry and subsequently with-
drawn, does not affect the rule. Atlantic Coast Line R.
Co. v. Trammell, 287 Fed. 741.
Undercharge — Free transportation, or lower rates for
freight or demurrage than those fixed by the commission,
could not lawfully be agreed upon by the railroad com-
pany. Sipple v. Railway Co., 28 Ga. App. 16, 110 S. E. 39.
The rates of freight fixed by the commission must be
observed; and if a lower rate of freight than that allowed
by the railroad commission is collected, an action to re-
cover the remainder of the true amount is maintainable,
even though the consignee accepted the freight and paid
the smaller amount in good faith, and although in his
dealings with his customers he has conducted his business
upon the basis of the rate of freight collected. Georgia
Railroad v. Creety, 5 Ga. App. 424, 63 S. F. 528; Railway
Co. v. Willingham, 8 Ga. App. 817, 70 S. F. 199.
Passenger Fares.— Under this section a railroad com-
pany can not lawfully demand of one passenger more fare
for his transportation from one station to another upon its
line than it is in the habit, under like conditions and cir-
cumstances, of charging others for the same service.
Phillips v. Southern Railway Co., 114 Ga. 284, 40 S E.
268.
Although a railroad company has a right to adopt and
enforce a rule requiring passengers getting on its trains
without tickets to pay more fare than it charges persons
who purchase tickets, yet it can not exact such higher
rate from a passenger who has no ticket, unless it has af-
forded him a reasonable opportunity to purchase one be-
fore entering the cars. Phillips v. Southern Railway Co.,
114 Ga. 284, 40 S. E. 268.
Carrying Goods Back for Repair.— This section is not
contravened by a contract of a carrier with a consignee
of damaged goods to- carry them back for repair. Sipple
v. Seaboard, etc., Ry. Co., 154 Ga. 376, 114 S. F. 435.
Privileges of Baggage Transfer Company. — A railway
company does not violate any public duty or deprive any
citizen of any lawful right by granting to a single corpora-
tion or ^ individual the exclusive right of entering its trains
to solicit the transportation of passengers and baggage, or
by renting to such corporation or individual a portion of
its baggage-room and conceding to it or him the privileges
necessarily incident to the occupancy and use thereof, pro-
vided that so doing does not interfere with the exercise by
any other person of any right which he may lawfully de-
mand of the company as a common carrier. Kates v. At-
lanta, etc., Co., 107 Ga. 636, 34 S. E. 372.
Cited in Central, etc., R. Co. v. Milledgeville R. Co., 138 I to jurisdiction of commission and powers,' see §§ 2663, 2664
[ 649 ]
Ga. 434, 439, 75 S. E. 614; Wimberly v. Ga. So., etc., Ry.
Co., 5 Ga. App. 263, 265, 63 S. E. 29; Southern Bell Tel.,
etc., Co. v. Beach, 8 Ga. App. 720, 724, 70 S. E. 137.
§ 2630. (§ 2189.) Duty of commissioners. — The
power to determine what are just and reasonable
rates and charges is vested exclusively in said
commission; and the commissioners shall make
reasonable and just rates of freight and passenger
tariffs, to be observed by all railroad companies
doing business in this State, on the railroads
thereof, shall make reasonable and just rules and
regulations, to be observed by all railroad com-
panies doing business in this State, as to charges
to any and all points for the necessary handling
and delivering of freights; shall make such just
and reasonable rules and regulations as may be
necessary for preventing unjust discriminations
in the transportation of freight and passengers on
the railroads in this State; shall have the power
to make just and reasonable joint rates for all
connecting railroads doing business in this
State, as to all traffic or business passing from
one of said roads to another: Provided, however,
that (before applying joint rates to roads that are
not under the management and control of one and
the same company, the commissioners shall give
thirty days notice to said roads of the joint rate
contemplated, and of its division between said
roads, and give hearings to roads desiring to ob-
ject to the same; shall make reasonable and just
rates of charge for use of railroad-cars carrying
any and all kinds of freight and passengers on
said railroads, no matter by whom owned or
carried; and shall make just and, reasonable rules
and regulations, to be observed by said railroad
companies on said railroads, to prevent the giving
or paying of any rebate or toonus, directly or in-
directly, and from misleading or deceiving the
public in any manner as to the real rates charged
for freight and passengers: Provided, that noth-
ing in this Article contained shall be taken as in
any manner abridging or controlling the rates for
freight charged by any railroad company in this
State for carrying freight which comes from or
goes beyond the boundaries of the State, and on
which freight less than local rates on any rail-
road carrying the same are charged iby such rail-
road; but said railroad companies shall possess
the same power and right to charge such rate for
carrying such freights as they possessed before
October 14th, 1879. Said commissioners shall
have full power, by rules and regulations, to desig-
nate and fix the difference in rates of freight and
passenger transportation to be allowed for longer
and shorter distances on the same or different
railroads, and to ascertain what shall be the lim-
its of longer and shorter distances. And said
public service commissioners shall have power to
require the location of such depots, and the estab-
lishment of such freight and passenger buildings,
as the condition of the road, the safety of freight,
and the public comfort and convenience may re-
quire, upon the giving of such railroad company
to be affected thereby the same notice as herein
provided. Acts 1879, p. 125; 1889, p. 131; 1907,
p. 72.
Cross References.— See notes to § 2629. See 3 Cum. Dig.
158 et seq. As to power of commissioners over contracts
between railroads, see § 2638. As to requirement that rail-
roads deliver freight to connecting lines, see § 2655. As
§ 2630
GEORGIA PUBLIC SERVICE COMMISSION
§ 2632
As to selling tickets of and to connecting roads, see §§ 2753,
2754. As to rebates, see § 6467.
Constitutionality. — The railroad-commission act of 1907
(Acts 1907, p. 72 amending this section) does not offend
the constitution of Georgia. Wadley Ry. Co. v. State, 137
Ga. 497, 73 S. E. 741.
Nature of Commission. — The railroad commission (now the
public service commission) is an administrative, and not a
legislative, body. It has only such powers as the legislature
has expressly, or by fair implication, conferred upon it.
Zuber v. So. Ry. Co., 9 Ga. App. 539, 71 S. E. 937. See also
Southern Ry. Co. v. Melton, 133 Ga. 277, 65 S. E. 665.
Authority to Make Regulations. — Construing this section
and §§ 2662, 2729, 2750, in harmony, it is evident that the
power of a common carrier to make reasonable regulations
must yield where regulations have been made by authority
of the State, unless they are invalid. Railroad Commis-
sion v. Louisville, etc., R. Co., 140 Ga. 817, 827, 80 S. E.
327.
A "joint rate" under this section is one prescribed to be
charged for the transportation of goods or passengers over
the connecting lines of two or more railroads, and to be
divided among them for the service rendered by each
respectively. Hill v. Railway Co., 128 Ga. 705, 57 S. E.
795.
There is no fixed and arbitrary rule for the making of a
joint rate. It is often done by deducting some prescribed
per cent, from each of the local rates and adding together
to two rates thus reduced; but this is not the only possible
method of fixing a rate which will fall within the term,
"joint rate," as used in this section. Hill v. Railway Co.,
128 Ga. 705, 57 S. E. 795.
Distinction between "Transportation" and "Switching"
or "Transfer" Service. — The test of distinction between
"transportation" service relatively to loaned freight-cars
for which a railway company can lawfully charge tonnage
rates, and "switching" or "transfer" service for which it
is restricted to a fixed charge per car under this section,
is not whether the movement of the cars involves the use
of a portion of the company's main line, or that of an-
other, for there may be a transportation service over one
or more spur-tracks of the same company, if the con-
tract of affreightment requires no movement over other
tracks or lines of railway; whereas a switching or trans-
fer service is one which precedes or follows a transporta-
tion service, and applies only to a shipment on which legal
freight charges have already been earned, or are to be
earned. Dixon v. Central Ry. Co., 110 Ga. 173, 35 S. E.
369.
Rule Affording Equal Facilities to All. — The Com-
mission under the authority to make "such just and
reasonable rules and regulations as may be necessary for
preventing unjust discriminations in the transportation of
freight," has power to promulgate a rule requiring railroad
companies, in the conduct of their intrastate business, to
"afford to all persons equal facilities in the transportation
and delivery of freight, without unjust discrimination
against any." Augusta, etc., Co. v. Central, etc., Ry. Co.,
121 Ga. 48, 48 S. E. 714.
Notice and Hearing to Company. — This section and §§
2630, 2641, and 2633, do not provide for notice and hear-
ing to a railroad company before the entry of an order
by the Commission, changing freight classification so as
to reduce intrastate freight rates. Central, etc., Ry. v.
Georgia R. R. Commission, 215 Fed. 421.
Dispensing with Prepayment of Charges.— Under the power
given by this section it is competent for the commission
to declare as an unlawful discrimination a course of con-
duct whereby a railroad company, connecting with other
railroad companies at each of its termini, which converge
to a common point, affording a choice of routes from the
common point to stations on its own line, receives from
one of its connections freights destined to points on its
own line without requiring prepayment of the earned
charges of the favored carrier, and declines to receive
from the connecting carrier at the other terminus freight
destined to points on its own line without prepayment ot
the freight charges earned by that connecting carrier,
where the conditions are substantially similar, and the
effect of the course of conduct is to seriously curtail
competition in rates and service to the patrons on its own
line. Wadley R. Co. v. State, 137 Ga. 497, 73 S. E. 741.
Venue upon Failure to Erect Depot. — If a railroad com-
pany of this State refuses to comply with an order passed
by the commissioners, requiring it to erect a depot
building as empowered by this section, such refusal, in
contemplation of law, is at the company's principal office,
or place of business, and consequently controls the venue.
Railway Co. v. State, 104 Ga. 831, 31 S. E. 531.
Cited in Brown v. Georgia, etc., Ry. Co., 119 Ga.
88, 90, 46 S. E. 71; Wight v. Pelham, etc., R. Co., 18 Ga.
App. 195, 89 S. E. 176.
§ 2631. (§ 2190.) To make rates. — The public
service commissioners are required to make for
each of the railroad corporations doing business
in this State, as soon as practicable, a schedule of
just and reasonable rates of charges for transpor-
tation of passengers and freights and cars on each
of said railroads; and said schedule shall, in suits
Ibrought against any such corporation, wherein is
involved the charges of any such corporation for
the transportation of any passenger or freight or
cars or unjust discrimination in relation thereto,
be deemed and taken in all the courts of this State
as sufficient evidence that the rates therein fixed
are just and reasonable rates of charges for the
transportation of passengers and freights and cars
upon the railroads; and said commissioners shall,
from time to time and as often as the circum-
stances may require, change and revise such
schedules. Acts 1878-9, p. 125; 1889, pp. 131, 138.
Cross References. — See 3 Cum. Dig. 158 et seq. As to
evidence of reports, schedules and orders of commission,
see § 2626. As to sale of tickets of connecting roads, see
§ 2753.
When Reasonable. — Rates within those fixed by the
commission are not unreasonable under this section. There-
fore, where a suit was brought against a railroad company
on account of alleged over-charges beyond a reasonable
rate, but the declaration did not allege either that no
rates had been fixed for the defendant's road or that the
charges were beyond the rates so fixed, it was demurrable.
Sorrell v. Railroad, 75 Ga. 509.
Revision. — It was to meet conditions arising from emer-
gency, no doubt, that the legislature provided in this sec-
tion, that the "commissioners shall, from time to time
and as often as the circumstances may require, change and
revise such schedules" of rates. Atlanta v. Gas-Eight
Co., 149 Ga. 405, 410, 100 S. E. 439.
Contracts Fixing Rates. — Shippers and common carriers
can not by contract between themselves fix the rates to
be charged on shipments of freight. Wight v. Pelham.
etc., R. Co., 18 Ga. App. 195, 89 S. E. 176.
Cited in Wadley So. Ry. Co. v. State, 137 Ga. 497, 73 S.
E. 741; Central, etc., R. Co. v. Milledgeville R. Co., 138
Ga. 434, 75 S. E. 614.
§ 2632. (§ 2191.) Publication of rates.— When
any schedule shall have been made or revised as
aforesaid, it shall be the duty o<f said commission
to give notice of such schedule, amendment or re-
vision, by circulars, tariff publications, its annual
reports, or in such other manner and form as it
deems advisable or necessary. And after the
same shall be so published, it shall be the duty
of all such railroad companies to post at all of their
respective stations, in a conspicuous place, a copy
of said schedule for the protection of the people:
Provided, that the schedules thus prepared shall
not be taken as evidence as herein provided un-
til schedules have been prepared and, published
as aforesaid, for all the railroad companies now
organized under the laws of this State, or
that may be organized at the time of such publi-
cation; and all such schedules purporting to be
printed and published as aforesaid shall be re-
ceived and held in all such suits as prima facie
the schedules of such commissioners, without
further proof than the production of the schedules
to be desired to be used as evidence with a certifi-
cate of the public service commission, that the
same is a copy of the schedule prepared by them
for the railroad company or corporation therein
named, and that the same has been duly published
[ 650]
§ 2633
GEORGIA PUBLIC SERVICE COMMISSION
§ 2636
as required by law. Acts 1883, p. 133; 1888, p. 37;
1889, pp. 138, 131; 1917, pp. 53, 54.
As to evidence of reports, schedules and orders of com-
mission, see_ § 2626.
Editor's Note. — This section was amended by the acts
of 1917, p. 53, by substituting the words "to give notice of
such schedule, amendment, or revision, by circulars, tariff
publications, its annual reports, or in such other manner
and form as it deems advisable or necessary," in lieu of
"to cause publication thereof to be made one time in some
public newspaper published in the cities of Atlanta, Augusta,
Albany, Savannah, Macon, Rome, Columbus, Americus
and Athens in this State, and at a rate not to exceed fifty
cents per square of usual advertising space, when less than
a column is occupied by inserting any schedule or change
of any schedule; so that said newspaper shall not charge
for such advertising any rate in excess of that allowed for
county legal advertising."
§ 2633. (§ 2192.) Jurisdiction and power of com-
missioners.— It shall be the duty of said commis-
sioners to investigate the books and papers of all
the railroad, companies doing business in this
State, to ascertain if the rules and regulations
aforesaid have been complied with, and to make
personal visitation of railroad offices, stations, and
other places of business for the purpose of ex-
aminations, and to make rules and regulations
concerning such examinations, which rules and
regulations shall be observed and obeyed as the
other rules and regulations aforesaid; said com-
missioners shall also have full power and authority
to examine all agents and employees of said rail-
road companies, and other persons, under oath or
otherwise, in order to procure the necessary in-
formation to make just and reasonable rates of
freight and passenger tariffs, and to ascertain if
such rules and regulations are observed or violated,
and to make necessary and proper rules and regula-
tions concerning such examination, and which
rules and regulations herein provided for shall be
obeyed and enforced as all other rules and regula-
tions provided for in this Article. Acts 1887-9, 125.
See notes to § 2630. See also, § 2663.
§ 2634. May regulate transportation of freights.
— The Georgia public service commission shall be
and is hereby vested, with full power and author-
ity to make, prescribe, and enforce all such rea-
sonable rules, regulations, and orders as may be
necessary in order to compel and require the sev-
eral railroad companies in this State to promptly
receive, receipt for, forward, and deliver to desti-
nation all freight of every character which may
be tendered or received by them for transporta-
tion; and as well as such reasonable rules, regula-
tions, and orders as may be necessary to compel
and require prompt delivery of all freights, on ar-
rival at destination, to the consignee. Acts 1905,
p. 120.
Cross References. — As to duty of carrier as to reception
of freight, see § 2729. As to duty to deliver without de-
lay, see § 2736. As to duty to receive live stock, see § 2767.
As to limitation of action to enforce penalties, see notes to
§ 2635.
The "junk ordinance" of the City of Atlanta is not void
for the reason that it is in conflict with this section. Shur-
man v. City of Atlanta, 148 Ga. 1, 95 S. E. 698.
Applied in Zuber v. So. Ry. Co., 9 Ga. App. 540, 71 S.
E. 937.
§ 2635. Shippers, requirements of. — Whenever
a shipper or consignor shall require of a railroad
company the placing of a car or cars to be used
in car-load shipments, then, in order for the con-
signor or shipper to avail himself of the forfeitures
[ 65
or penalties prescribed by the rules and regula-
tions of said, public service commission, it must
first appear that such shipper or consignor made
written application for said car or cars to said
railroad: Provided, that such public service com-
mission shall, by reasonable rules and regula-
tions, provide the time within which said car or cars
shall be furnished after being ordered as aforesaid,
and the penalty per day per car to be paid by said
railroad company in the event such car or cars
are not furnished as ordered: And provided fur-
ther, that in order for any shipper or consignor to
avail himself of the penalties provided by the
rules and regulations of said public service com-
mission, such shipper or consignor shall likewise
be subject, under proper rules to be fixed by said
commission, to the orders, rules and regulations
of said public service commission.
Cross References. — As to duty to furnish shipping facili-
ties, see 3 Cum. Dig. 292. See also, § 2664. As to transpor-
tation of perishable products, see § 2774.
Constitutionality.— The act of 1905 (Acts 1905, p. 120) was
not unconstitutional and void on the ground that the title
was not sufficient to include the conferring of power in
the body of the act upon the commission to impose "pen-
alties," or on the ground that the title did not cover the
provision in the body of the act making regulations as to
the placing of cars. Southern Ry. Co. v. Melton, 133 Ga.
277, 65 S. E. 665.
This section is merely cumulative and a shipper who
may have sustained damages by reason of a breach of
the common-law duty of a railroad company, as a com^
mon carrier, to furnish cars for the transportation of
freight within a reasonable time was not prevented by
this section from instituting a common- law action for
damages, instead of pursuing the remedy provided by this
section. Southern Ry. Co. v. Moore, 133 Ga. 806, 67 S.
E. 85.
When Section Applicable. — This section is applicable
only where the gist of the plaintiff's claim is based on the
violation of the carrier's public duty, irrespective of con-
tract. Georgia Coast, etc., R. Co. v. Durrence, 6 Ga. App.
615, 65 S. E. 583. See also, in this connection, Southern
Ry. Co. v. Melton, 133 Ga. 277, 65 S. E. 665; Georgia R.
Co. v. Snellgrove, 16 Ga. App. 344, 85 S. E. 790.
Where the gist of the plaintiff's claim as set out in his
petition is based on the failure of the carrier to perform a
specific contract, this section is not applicable. Georgia R.
Co. v. Snellgrove, 16 Ga. App. 344, 85 S. E. 790.
Point Where Cars Required. — A demand to furnish cars,
made by shipper to a railway company and addressed to
the agent of the company at a named point of its line,
will, where nothing to the contrary appears, be held to
mean that the cars were required at the point at which
the demand upon the agent was made. Georgia Railway
Co. v. Rabun, 21 Ga. App. 402, 94 S. E. 598.
Remedy in Favor of Shippers. — The remedy given by this
section, and the rules of the commission made in pur-
suance thereof, is one in favor of shippers; and a per-
son entering a demand for cars, without at that time dis-
closing his agency for another, can not recover the penalty
thus imposed, where it appears that at the time of the
shipment it was disclosed that the cars were intended
solely for the use of another, and the bill of lading was is
sued in the name of the true owner and shipper of the
goods. Georgia Railway Co. v. Rabun, 21 Ga. App. 402, 94
S. E. 598.
Limitation of Action under Section. — An action brought
under this section, to recover from a railroad company the
sum fixed by rule of the commission for failing to furnish
cars on demand, is so far penal in its nature as to be bar-
red, under the provisions of § 4370. Railway Co. v. Inman,
11 Ga. App. 564, 75 S. E- 908.
Applied in So. Ry. Co. v. Melton, 133 Ga. 277, 65 S. E.
665.
§ 2636. May compel witnesses as to rebates and
rmderbilling. — In the investigation of complaints
by the Georgia public service commission of vio-
lations of the laws against giving or granting re-
bates, or of underbilling, by common carriers,
said commission is hereby given the power and
authority to compel the .shipper or consignee, or
1 1
§ 2637
GEORGIA PUBLIC SERVICE COMMISSION
§ 2640
any officer, agent, or employee of a common car-
rier, to give evidence touching such complaints.
Before any such person shall be compelled to give
evidence touching such complaints, the public
service commission shall make an order that such
witnesss is required by the commission to testify,
and that he is exempt thereafter from indictment
or prosecution for any transaction about which he
is so compelled to testify. When such ord,er is
made the witness shall be compelled to give evi-
dence touching such complaints, and he shall be
forever free from indictment or prosecution in
any court of this State touching the matters about
which he is compelled to testify. Acts 1896, p. 57.
As to misleading rebates, see § 6467. As to power of
commissioners over witnesses, see § 2653. As to penalties
for aiding and abetting in violations of rules, see § 2668.
See also § 2663.
§ 2637. Witness compelled to testify in suit or
prosecution. — When a witness is exonerated from
indictment or prosecution, as herein provided, he
shall in like manner be compelled to give evi-
dence in any suit or prosecution instituted in any
of the courts of this State against any common
carrier or against any person on account of the
transactions about which he is compelled to tes-
tify before the public service commission.
As to penalties for aiding and abetting in violations of
rules, see § 2668.
§ 2638. (§ 2193.) Power of commissioners over
contracts between railroads. — All contracts and
agreements between railroad companies doing
business in this State, as to rates of freight and
passenger tariffs, shall be submitted to said com-
missioners for inspection and correction, that
it may be seen whether or not they are a vio-
lation of the law or of the provisions of
the Constitution, or of this Article, or of
the rules and regulations of said commission-
ers; and all arrangements and agreements what-
ever as to the division of earnings of any kind
by competing railroad companies doing business
in this State, shall be submitted to said commis-
sioners for inspection and approval, . in so far as
they affect rules and regulations made by said
commissioners to secure to all persons doing busi-
ness with said companies just and reasonable
rates of freight and passenger tariffs; and said
commissioners may make such rules and regula-
tions as to such contracts and agreements as may
be then deemed necessary and proper, and any
such agreements not approved by such commis-
sioners, or by virtue of which rates shall be
charged exceeding the rates fixed for freight and
passengers, shall be deemed, held, and taken to
fbe violations of Article 4, section 1, paragraph 4,
of the Constitution, and shall be illegal and void.
Acts 1878-9, p. 125.
Cross References.— As to power and authority of regulat-
ing railroad tariffs, see § 6463. As to duty of commis-
sioners, see § 2630. As to selling tickets of and to connect-
ing roads, see §§ 2753, 2754. As to buying stock, etc., in
other corporations, see § 6466.
Constitutionality. — This section is not in violation of the
fourteenth amendment of the constitution of the United
States, as being an unlawful interference with the liberty
of contract, or a taking of property without due process
of law. Nor does it not violate the due -process clause of
the State constitution. Railroad Commission v. Louis-
ville, etc., R. Co., 140 Ga. 817, 80 S. E. 327. Section ap
plied in same case.
§ 2639. (§ 2194.) Inspection of roads by cora-
[6
mission, required. — The public service commis-
sion, upon complaint made, shall inspect for
themselves, or through an agent, any railroad or
any part of any railroad in this State, and if the
same is found in an unsafe or dangerous condi-
tion, it shall require the same put and kept in such
condition as will render travel over the same safe
and expeditious; reasonable time shall be given
the railroad authorities in which to accomplish the
work or repairs required. This section shall not
limit or affect the liability of railroads in cases of
damage to person or property. Acts 1890-1, p. 150.
§ 2640. (§ 2197.) Injuries resulting from viola-
tion of rules. — If any railroad company doing
business in this State shall, in violation of any
rule or regulation provided by. the commissioners
aforesaid, inflict any wrong or injury on any per-
son, such person shall have a right of action and
recovery for such wrong or injury in the county
where the_same was done, in any court having ju-
risdiction thereof, and the damages to be recov-
ered shall be the same as in actions between in-
dividuals, except that in cases of willful violation
of law such railroad companies shall be liable to
exemplary damages: Provided, that all suits un-
der this Article shall be brought within twelve
months after the commission of the alleged wrong
or injury. Acts 1878-9, p. 125.
As to liability of railroad for unlawful acts, see § 2666.
As to remedy for violation by railroad of provision as to
storage, see § 2652.
Exemplary Damages. — In a suit for damages sustained
on account of a violation of a rule of the commission,
exemplary damages may be recovered, if it appears that
the conduct of the company amounted to a wilful violation
of law under this section; and therefore allegations of the
petition which, if proved, would throw light on the ques-
tion as to whether the conduct of the company was wilful,
should not be stricken as irrelevant and impertinent.
Augusta, etc., Co. v. Central, etc., Ry. Co., 121 Ga. 48, 48
S. E. 714.
Mandamus by Shipper. — A railroad company owes to the
public a duty to obey the reasonable tariff rates fixed by
the State commission, and a shipper, whose shipment has
been rejected on the ground that one of the rates of the
commission's schedule is, in the opinion of the carrier, too
low, has such special interest in the observance by the
railroad company of its duty to the public in this regard
as that he may compel its performance by mandamus.
Southern Railway Co. v. Stove Works, 128 Ga. 207, 57 S.
E- 429. '
The existence of a temporary injunction granted in a
suit by a third person against the commission and the
respondent, in a different forum, temporarily restraining
the commission from putting into effect similar rates pre-
scribed in other circulars, is no bar to the petitioner from
prosecuting the remedy by mandamus. Southern Railwav
Co. v. Stove Works, 128 Ga. 207, 57 S. E. 429.
Limitation of Action. — This section has no application to
a suit brought by a railway company to recover the dif ■
ference between the amount actually collected as freight
and that which should have been collected under the rules
of the State commission; and such a suit would not be bar-
red if brought within four years from the accrual of the
right of action. Railway Co. v. Lumber Co., 14 Ga. App.
302, 80 S. E. 725.
A railway company is not estopped to proceed against
a consignee to recover the difference between the amount
of freight collected and that which should have been col-
lected, merely because of delay in bringing suit, not ex-
tending beyond the period prescribed by the statute of
limitations, and because during that time the consignor
(who by agreement with the consignee was liable for the
freight) became insolvent. Railway Co. v. Lumber Co.,
14 Ga. App. 302, 80 S. E- 725.
Under this section, , bringing suit within twelve months
is a condition precedent, and the right of renewal within
six months after the dismissal of one suit, though more
than twelve months from the time the right of action ac-
crues, does not exist under the section. Parmelee v.
Savannah, etc., R. Co., 78 Ga.. 239, 2 S. E- 686.
52 1
§ 2641
GEORGIA PUBLIC SERVICE COMMISSION
§ 2652
§ 2641. (§ 2198.) Rules of evidence. — In all
cases under the provisions of this Article, the
rules of evidence shall be the same as in civil ac-
tions, except as hereinbefore otherwise provided.
All fines recovered under the provisions of this
Article shall ibe paid into the State treasury, to be
used for such purposes as the General Assembly
may provide. The remedies hereby given the
persons injured shall be regarded as cumulative
to the remedies now given by law against rail-
road corporations, and this Article shall not be
construed as repealing any statute giving such
remedies. Acts 1878-9, p. 3 25.
As to notice and hearing, see notes to § 2630.
§ 2642. (§ 2199.) Meaning of terms. — The
terms "railroad corporation," or "railroad com-
pany," contained in this Article, shall be deemed
and taken to mean all corporations, companies, or
individuals now owning or operating or which
may hereafter own or operate any railroad, in
whole or in part, in this State, and the provisions
of this Article shall apply to all persons, firms,
and companies, and, to all associations of per-
sons, whether incorporated or otherwise, that
shall do business as common carriers upon any
of the lines of railroad in this State, the same as
to railroad corporations hereinbefore mentioned,.
Acts 1878-9, p. .125.
The term "railroad company" employed in § 2697 in-
cludes natural persons as well as corporations. Railroad
Co. v. State, 135 Ga. 545, 69 S. E. 725.
Cited in Savannah, etc., Ry. v. Williams, 117 Ga. 420,
43 S. E. 413.
§ 2643. (§ 2200.) Duplicate freight receipts.—
All railroad companies in this State shall, on de
mand, issue duplicate freight receipts to shippers,
in which shall be stated the class or classes of
freight shipped, the freight charges over the road
giving the receipt, and so far as practicable shall
state the freight charges over other roads that
carry such freight. When the consignee presents
the railroad receipt to the agent of the railroad
that delivers such freight, such agent shall deliver
the article shipped on payment of the rate
charged for the class of freights mentioned in the
receipt. Acts 1878-9, p. 125.
As to how freight lists made out, see § 2747. As to
damage to property in transportation, see § 2777.
§ 2644. (§ 2201.) Reports of commissioners. —
It shall be the duty of the commissioners herein
provided, for, to make to the Governor annual re-
ports of the transactions of their office, and to
recommend from time to time such legislation as
they may deem advisable under the provisions of
this Article. Acts 1878-9, p. 125; 1S89, p. 133.
§ 2645. (§ 2202.) Commissioners to investigate
through rates. — It shall be the duty of the public
service commission to investigate thoroughly all
through freight rates from points out of Georgia
to points in Georgia, and from points in Georgia
to points out of Georgia. Acts 1890-1, p. 147.
Cited in Gray v. McEendon, 134 Ga. 231, 67 S. E. 859.
§ 2646. (§ 2203.) Report improper charges to
railroad officials. — Whenever the commission
'finds that a through rate, charged into or out of
Georgia, is in their opinion excessive or unrea-
sonable, or discriminating in its nature, it shall call
the attention of the railroad officials in Georgia
to the fact, and urge upon them the propriety of
changing such rate or rates.
§ 2647. (§ 2204.) If not changed, to report to
interstate commission. — Whenever such rates are
not changed according to the suggestion of the
public service commission, it shall be the duty of
the commission to present the facts, whenever it
can legally ibe done, to the interstate commerce
commission, and to appeal to it for relief.
§ 2648. (§ 2205.) Attorney-general to represent
public service commission. — In all such work de-
volving upon the public service commission, they
shall receive, upon application, the services of the
attorney-general of this State, and he shall also
represent them, whenever called upon to do so,
before the interstate-commerce commission.
As to attorney for the commission, see § 2624.
§ 2649. (§ 2206.) To fix storage charges. — The
public service commission are required to fix and
prescribe a schedule of maximum rates and
charges for storage of freight to be made and
charged by railroad companies doing business in
this State, and to fix at what time after the recep-
tion of freight at place of destination such charges
for storage shall begin; with power to vary the
same according to the value and character of the
freight stored, the nature of the place of destina-
tion, residence of consignee, and such other facts
as in their judgment should be considered in fix-
ing the same. Acts 1890-1, p. 149.
As to rule in Georgia as to time of carriers' responsibility,
see § 2730.
Cited in Dixon v. Central Ry. Co., 110 Ga. 173, 185, 35
S. E. 369; Gray v. McEendon, 134 Ga. 224, 231, 6> S. E. 859.
§ 2650. (§ 2207.) Public service commission
law applicable. — All of the provisions prescribing
the procedure of said, commission in fixing freight
and passenger tariffs, and hearing complaints of
carriers and shippers, and of altering and amend-
ing said tariffs, shall apply to the subject of fixing
and amending rates and charges for storage, as
aforesaid.
See § 2630.
§ 2651. (§ 2208.) Railroads not to charge stor-
age greater than that fixed. — No railroad com-
pany shall make or retain, directly or indirectly,
any charge for storage, of freight greater than
that fixed by the commission for each particular
storage, nor shall they discriminate, directly or
indirectly, by means of rebate or any other de-
vice, in such charges (between persons.
As to forbidding of unjust discriminations by railroads,
see § 2629.
Applied in Sipple v. Railway Co., 28 Ga. App. 16, 110 S.
E- 39.
§ 2652. (§ 2209.) Remedy for violations by rail-
roads.— If any railroad company shall violate the
provisions of the three preceding sections, either
by exceeding the rates of storage prescribed or
by discriminating as aforesaid, the person or per-
sons so paying such overcharge, or subjected to
such discrimination, shall have the right to sue for
the same in any court of this State having juris-
diction of the claim, and shall have all the reme-
dies and be entitled to recover the same penalties
and measure of damages as is prescribed in the
case of overcharge of freight rates, upon making
[ 653 ]
§ 2653
GEORGIA PUBLIC SERVICE COMMISSION
§ 2657
like demand as is prescribed in such case, and
after like failure to pay the same.
As to injuries resulting from violation of rules, see §
2640. As to liability for unlawful acts of railroads, see
§ 2666.
§ 2653. (§ 2210.) Power of commissioners over
witnesses. — Said public service commissioners, in
making any examination for the purpose of ob-
taining information pursuant to this Article, shall
have power to issue subpoenas for the attendance
of witnesses by such rules as they may prescribe.
And said witnesses shall receive for such attend-
ance two dollars per day, and five cents per mile
traveled by the nearest practicable route in going to
and returning from the place of meeting of said
commissioners, to be ordered paid iby the Gov-
ernor upon presentation of subpoenas, sworn to
by the witnesses, as to the number of days served
and miles traveled., before the clerk of said com-
missioners, who is hereby authorized to adminis-
ter oaths. In case any person shall willfully fail
or refuse to obey such subpoena, it shall be the
duty of the judge of the superior court of any
county, upon application of said commissioners,
to issue an attachment for such witness, and com-
pel him to attend before the commissioners and
give his testimony upon such matters as shall be
lawfully required by such commissioners, and said
-court shall have power to punish for contempt,
as in other cases of refusal to obey the process
and order of such court. Acts 1878-9, p. 125.
As to hearing and notice, see notes to § 2630. As to
compelling witnesses as to rebates and underbilling, see §
2636.
§ 2654. (§ 2211.) Railroad officers to report to
commissioners. — Every officer, agent, or em-
ployee of any railroad company, who shall wilfully
neglect or refuse to make and furnish any report
required b)r the commissioners, as necessary to the
purposes of 'this Article, or who shall willfully and
unlawfully hinder, delay, or obstruct said com-
missioners in the discharge of the duties hereby
imposed upon them, shall forfeit and pay a sum
of not less than one hundred dollars, nor more
than five thousand dollars, for each offense, to be
recovered in an action of debt in the name of the
State. Acts 1878-9, p. 125.
As to returns of corporations, see § 2209.
§ 2655. (§ 2212.) Railroads required to deliver
freights to connecting lines. — - All railroad com-
panies in this State shall, at the terminus or any
intermediate point, be required to switch off and
deliver to the connecting road having the same
gauge, in the yard of the latter, all cars passing
over their lines, or any portion of the same, con-
taining goods or freights consigned, without re-
bate or deception, by any route, at 'the option of
the shipper, according to customary or published
rates, to any point over or beyond such connecting
road, and any failure to do so with reasonable
diligence, according to the route by which such
goods or freights were consigned, shall be deemed
and taken as a conversion in law, of such goods
or freights, and shall give a right of action of the
owner or consignee, for the value of the same,
with interest, and not less than ten per cent., nor
more than twenty-five per cent., for expenses and
damages: Provided, that should the defendant, in
[6
any suit brought under this section, set up as a
defense that the plaintiff has accepted a rebate or
practiced fraud or deception touching the rate, it
shall be a complete reply to such defense if the
plaintiff can prove that defendant, or its agents,
have allowed a rebate or rebates, or practiced like
fraud or deception from the same competing point
against the rival line. Acts 1874, p. 94.
Cross References. — For full treatment of connecting car-
riers, see 3 Cum. Dig. 820, 3 Fnc. Dig. 252. See also, notes
to § 2657. As to illegal discriminations, see § 2657. As to
liability of roads for unlawful acts, see § 2666. As to con-
necting roads receiving freights tendered in cars, see § 2756.
As to rebates, see § 6467.
What Constitutes! a Connecting Line. — A connecting line,
in the sense of this section, is where any railroad at its
terminus, or any intermediate point along its line, joins
another, or where two railroads have the same terminus.
Georgia, etc., R. Co. v. Maddox, 116 Ga. 76, 42 S. E. 315;
Logan & Co. v. Central Railroad, 74 Ga. 684.
Furnishing Cars without Compensation Not Required. —
A railroad company is not compelled to make a contract
to forward goods beyond its own line; though if it should
make such a contract and fail to carry it out, it would be
liable in damages. This section means that if the initial
company receives cars from another line consigned to a
point beyond its terminus, it shall deliver them to the
connecting road running to that point; but there was no
intention to compel one company to furnish its own cars
to another without any compensation for their use. Coles,
etc., Co. v. Railroad & Banking Co., 86 Ga. 251, 12 S. F.
749. See also, State v. Wrightsville, etc., R. Co., 104 Ga.
437, 30 S. F- 891; Augusta, etc., Co. v. Central, etc., Ry.
Co., 121 Ga. 48, 48 S. F- 714; Seaboard Air Line Ry. v.
Dixon, 140 Ga. 802, 804, 79 S. F. 1118.
Cited in Central, etc.. R. Co. v. Milledgeville R. Co.,
138 Ga. 434, 439, 75 S. F- 614.
§ 2656. (§ 2213.) Railroads may join their
tracks, etc. — Where any railroad in this State
joins another at any point along its line, or where
two of such roads have the same terminus, either
line, having the same gauge, may, at its own ex-
pense, join its track by proper and safe switches
with the other, should such other road or com-
pany refuse to join in the work and expense. Acts
1874, p. 94. ■
See §§ 2658, 2664; §§ 2585, par. 6, 2588.
History of Section. — This section, though taken from the
act of 1874, has never been repealed. In substance it was
re-enacted in the general railroad incorporation act of
1892, and now appears in § 2585, as par. 6 thereof. These
sections were not repealed by § 7 of the act of 1907, p.
76, nor by the act of 1908 (Acts 1908, p. 68), contained in
§ 2664. Savannah Terminals Co. v. Railway Co., 148 Ga.
180, 184, 96 S. F. 257.
Adjacent Roads. — Under this section, it was held that
where a railroad is adjacent to another and capable of be-
ing joined to it by a switch, either at its terminus or any-
where along its line where they meet or converge, the
right is given to make such connection, whether it be
voluntarily granted or not. Logan & Co. v. Central Rail
road, 74 Ga. 684.
Running Through City. — This section makes no provi-
sion for taking or condemning the property of any other
person than the railroad refusing the connection, and does
not confer power on the railroad to run through an in-
corporated city for the purpose of reaching" and joining
another railroad. City Council v. Port Royal, etc., Rail-
way, 74 Ga. 658.
§ 2657. (§ 2214.) Discriminations illegal— No
railroad company shall discriminate in its rates or
tariff of freights in favor of any line or route con-
nected with it as against any other line or route,
nor, when a part of its own line is sought to be
run in connection with any other route, shall such
company discriminate against such connecting
line or in favor of the balance of its own line, but
shall have 'the same rates for all, and shall afford
the usual and like customary facilities for inter-
54 ]
§ 2658
GEORGIA PUBLIC SERVICE COMMISSION
§ 2662
change of freights to patrons of each and all routes
or lines alike; any refusal of the same shall give a
like right of action as mentioned in section 2655
of this Code. Acts 1874, p. 93.
Cross References.— See §§ 2629, 2761. As to charges of
connecting carriers, see 3 Cum. Dig. 833, 3 Enc. Dig. 272.
As to power of regulating railroad tariffs, see § 6463. As
to rebates, see § 6467. As to liability of road for wrongful
acts, see § 2666.
Section Not Restricted to Physical Connections and Ap-
pliances.—This section should not be restricted in its ap-
plication only to physical connections and physical ap.
pliances. It applies to every facility necessary for the
safety and convenience of passengers and for the prompt
transportation of freight. Wadley So. Ry. v. State, 137
Ga. 497, 509, 73 S. E- 741.
Receiving Freight without Prepayment. — Under this sec-
tion it is competent for the commission to declare as an
unlawful discrimination a course of conduct whereby a
railroad company, connecting with other railroad com-
panies at each of its termini, which converge to a common
point, receives from one of its connections freights des-
tined to points on its own line without requiring prepay-
ment of the earned charges of the favored carrier, and de-
clines to receive from the connecting carrier at the other
terminus freight destined to points on its own line without
prepayment of the freight charges earned by that con-
necting carrier. Wadley So. Ry. v. State, 137 Ga. 497, 73
S. E. 741.
Who May Bring Action. — While a competing railroad
might sue for damages to its general business, the shipper,
who is damaged by the wrongful requirement of unship-
ping, draying and re-shipping, and the consequent waste,
delay and injury, has a right of action against the rail-
road company causing the same. Logan & Co. v. Central
Railroad, 74 Ga. 684.
Lessor as Party. — Where suit was brought against a
railroad company, which operated another railroad under
lease, for a refusal to receive goods and transport them
over the line so operated by it, there was no necessity to
make the lessor a party defendant to the action under this
section. Railroad v. Logan & Co., 77 Ga. 804, 2 S. E. 465.
Penalty. — If a railroad company had not complied with
the law as prescribed in this section, it was liable to the
penalty prescribed in § 2655. Railroad v. Logan & Co., 77
Ga. 804, 2 S. E. 465.
Under this section and § 2655, upon a refusal to receive
and transport goods brought over a connecting line, when
such facilities are afforded to other connecting roads, or
to the patrons of other roads or of its own road, damages
are presumed up to ten per cent, of the value of the prop-
erty, and in order to increase the recovery for damages and
expenses from ten per cent, to the limit of twenty- five per
cent, fixed by the statute, all the elements of real or actual
damages which are admissible in other actions may be
shown. Central Railroad v. Logan & Co., 77 Ga. 804, 2
S. E- 465.
Applied in Logan & Co. v. Central Railroad, 74 Ga. 684.
Cited in Wimberly v. Ga. So., etc., Ry. Co., 5 Ga. App.
263, 265, 63 S. E. 29; Kates v. Atlanta, etc., Co., 107 Ga.
636, 34 S. E. 372; Augusta, etc., Co. v. Central, etc., Ry.
Co., 121 Ga. 48, 48 S. E. 714.
§ 2658. (§ 2215.) Right to connect switches,
how enforced. — Should any railroad company re-
fuse to allow the connecting switches put in its
line when requested under section 2656, it shall
and may be lawful for the other road, seeking
such connection, to proceed to procure right to
use so much of the franchise of the former as may
be necessary for such purpose, in the manner
pointed out in the charter of the Central Railroad
and Banking Company for ascertaining the value
of and paying for private property taken for use
of said road. Acts 1874, p. 95.
See §§ 2656, 2664, 2585, par. 6.
This section makes no provision for taking or condemn-
ing the property of any other person than the railroad re-
fusing the connection, and does not confer power on the
railroad to run through an incorporated city for the pur-
pose of reaching and joining another railroad. City Coun-
cil v. Port Royal, etc., Railway, 74 Ga. 658.
§ 2659. (§ 2216.) Application of the foregoing.
— None of the provisions of the foregoing sec-
tions shall apply to shipments or consignments of
freights from points beyond the limits of this
State, except such as come by sea, and except
such as pass over the Western and Atlantic Rail-
road, and in respect to said road these provisions
shall be construed as in harmony with, and in
furtherance of, the provisions of the law and con-
tract under which the same is leased, by which
discriminations against other lines are forbidden.
Acts 1874, p. 95.
See §§ 2630, 2655, 2658.
§ 2660. (§ 2217.) Express and telegraph com-
panies under commissioners' control. — All com-
panies or persons owning, controlling, or operat-
ing a line or lines of express or telegraph, which
are in whole or in part in this State, shall be under
the control of the public service commissioners of
this State, who shall have full power to regulate
the prices to be charged by any company or per-
sons owning, controlling, or operating any such
line or lines, for any service performed by such
company or persons, and all the powers given to
said commissioners over railroads in this State,
and all the penalties prescribed against railroad
companies or persons operating railroads, are
hereby declared to be of force against corpora-
tions, companies, or a person or persons owning,
controlling, or operating a line or lines of express
and telegraph, doing business in this State, whose
line or lines is or are, wholly or in part, in this
State, so far as said provisions can be made appli-
cable to any corporation, person, or persons, own-
ing, controlling, or operating a line or lines of ex-
press and telegraph. The said commissioners shall
also have power and authority to require said com-
panies to locate agencies at railroad stations. Acts
1890-1, p. 151.
See §§ 2662, 2663. See also, 10 Cum. Dig. 862. As to incor-
poration of express companies, see § 2381. As to incorpora-
tion of telegraph companies, see § 2803. As to construction of
telegraph or telephone-lines, see § 2811.
§ 2661. (§ 2218.) Regulation of charges.— The
powers of the commissioners to regulate charges
by corporations, companies, and persons herein
referred to, shall apply only to charges by express
for transportation from one point to another in
this State, and to messages sent by telegraph
from one point to another in this State.
§ 2662. Powers and duties extended. — The
powers and duties hereinbefore conferred by law
upon the public service commission are hereby
extended and enlarged, so that its authority and
control shall extend to street-railroads and street-
railroad corporations, companies, or persons own-
ing, leasing, or operating street-railroads in this
State: Provided, however, that nothing herein
shall be construed to impair any valid, subsisting
contract now in existence between any munici-
pality and any such company; and provided that
this section shall not operate as a repeal of any
existing municipal ordinance; nor shall it impair
nor invalidate any future contract or ordinance of
any municipality, as to the public uses of such
company, that shall receive the assent of the pub-
lic service commission; over docks and wharves,
and corporations, companies, or persons owning,
leasing, or operating the same; over terminals or
terminal stations, and corporations, companies, or
[655 ]
§ 2662
GEORGIA PUBLIC SERVICE COMMISSION
§ 2663
persons owning, leasing, or operating such;
cotton-compress corporations or associations, and
persons or companies owning, leasing, or operat-
ing the same; and over telegraph or telephone
corporations, companies, or persons owning, leas-
ing, or operating a public telephone service or
telephone lines in this State; over gas and electric-
light and power companies, corporations, or per-
sons owning, leasing, or operating public gas
plants or electric-light and power plants furnish-
ing service to the public: "Provided, that the
above provision, to-wit: 'that nothing herein shall
be construed to impair any valid, subsisting con-
tract now in existence between any municipality
and any such company,' shall not apply to any
suburban and street railroad company which has'
its principal office and operates lines of railroads
in counties having a population of not less than
75,000 and not more than 125,000 population."
Acts 1907, p. 73; 1908, p. 67; 1919, p. 94.
Cross References.— See § 2660. As to powers of naviga-
tion companies, see § 2575. As to what corporations created
by superior court, see § 2823. As to rent or sale of electric
power, see § 2234.
Editor's Note.— The Acts of 1919, p. 94 amended this sec-
tion by adding the last proviso. It would seem that if
this proviso is to be of any effect, it would permit the sec-
tion to be construed so as to impair the obligation _ of sub-
sisting contracts of the companies mentioned therein. This
of course would be unconstitutional in itself and therefore
the ultimate effect of the proviso is nugatory.
Constitutionality.— This section and § 2663 are not void
as in opposition to the clauses in the Federal and State
constitutions prohibiting the passage of any ex post facto
law, or law impairing the obligation of contracts, or the
taking of property without due process of law, or for a
public use without just compensation; nor do they violate
art. 4, § 1, par. 1 of the state constitution. Dry Goods Co.
v. Public Service Corp., 142 Ga. 841, 83 S. E. 946.
As to the constitutionality of the proviso added by the
acts of 1919, see the Editor's Note immediately preceding
this paragraph.
Application of Section General.— The provisions of this
section, which restrict the power of the commission in
regard to contracts existing at the time of the passage of
the act embodied in this section, and contracts which might
be made subsequently to that act, apply alike to all of the
several classes of companies specified. Atlanta v. Railway
& Power Co., 149 Ga. 411, 100 S. E. 442.
Authority to Make Regulations.— Construing this sec-
tion and §§ 2630, 2729, 2750, in harmony, it is evident that
the power of a common carrier to make reasonable regula-
tions must yield where regulations have been made by
authority of the State, unless they are invalid. Railroad
Commission v. Louisville, etc., R. Co., 140 Ga. 817, 827, 80
S. E. 327.
Maximum Rates Reasonable.— Where the legislature con-
fers upon the Commission the power to fix maximum rates
for service rendered to the public by individuals or corpora-
tions engaged in a public service, the maximum rates fixed
by the commission are presumptively reasonable, and
public -service companies may demand such maximum rates.
Dublin v. Ogburn, 142 Ga. 840, 83 S. E. 939. See also, At-
lanta v. Gas-Light Co., 149 Ga. 405, 100 S. E. 439.
Revisal or New Rates. — That part of the proviso of this
section which declares "that this act shall not * * *
impair nor invalidate any future contract or ordinance of
any municipality, as to the public uses of such company,
that shall receive the assent of the commission," does not-
deprive the commission of power, after assenting to a con-
tract or ordinance of the character mentioned in such pro-
vision, made after the passage of the act, to revise or make
new rates, where future conditions render the rates speci-
fied in the contract or ordinance unreasonable and unjust
to the companies or to the public. Atlanta v. Railway &
Power Co., 149 Ga. 411, 100 S. E. 442.
Telephone Rates. — The commission of this State has the
right to fix the rates to be charged by telephone companies
for the use of their telephones in sending and receiving
messages within the State. Dawson v. Telephone Co., 137
Ga. 62, 72 S. E. 508.
Street Railway Fares. — In the absence of a valid subsist-
ing contract and ordinance upon the subject of fares, it
was the duty of the Commission, upon application by, a
street-railroad company, to fix and determine the rates of
fare upon the lines of the street-railroad in the city, in
accordance with the law defining the powers and duties of
the commission. Railway & Power Co. v. Railroad Com-
mission, 149 Ga. 1, 98 S. E. 696.
Same — Where Contract Subsisting. — Under this section,
the Commission was without authority to exercise the
powers conferred and extended by this section, so as to
determine or fix fares upon lines of street railroads within
the limits of any town or city between which and the
street-railroad company operating such lines, there was a
valid, subsisting contract at the time of the passing of
the law. Railway & Power Co. v. Railroad Commission,
149 Ga. 1, 98 S. E. 696.
Electric Light and Power Rates. — The commission of
this State has statutory power to prescribe schedules of
"just and reasonable rates" of charges for services by
electric-light and power companies. Atlanta v. Railway
& Power Co., 149 Ga. 411, 100 S. E. 442.
If a patron of a public- service corporation, furnishing
electrical power and light, sees fit to make a contract
covering a definite period of time, where no rates have
been prescribed by the commission, he will be taken to
have done so subject to subsequent schedules of rates law-
fully prescribed by the commission, Union Dry Goods Co.
v. Public Service Corp., 142 Ga. 841, 83 S. E. 946.
Gas Rates. — The Commission of this State has authority
to fix just and reasonable gas rates to be paid by the con-
sumers to the corporation owning or operating public gas
plants. Atlanta v. Gas-Light Co., 149 Ga. 405, 100 S. E-
439.
Same — Presumption and Onus. — An order of the com-
mission fixing gas rates is presumed to be valid, but may
be attacked on the ground that it is unjust and unreason-
able, or void for other cause; and where such order is
attacked as being void, the burden is upon the party at-
tacking it. Atlanta v. Gas -Light Co., 149 Ga. 405, 100 S.
E. 439.
Certiorari does not lie to an order by the commission
lowering or raising rates by virtue of this section. Mutual
Light, etc., Co. v. Brunswick, 158 Ga. 679, 124 S. E. 178.
Cited in Western, etc., R. Co. v. W. U. Tel. Co., 138 Ga.
420, 424, 75 S. E. 471; Smith v. Whiddon, 138 Ga. 471, 75 S.
E. 635; Mayor, etc. v. Standard Fuel Supply Co., 140 Ga.
353, 78 S. E. 906; Georgia Ry., etc., Co. v. Railroad Com.,
149 Ga. 1, 15, 98 S. E. 696.
§ 2663. Jurisdiction of the commission. — The
public service commission shall have and exercise
all the power and authority heretofore conferred
upon it by law, and shall have the general supervi-
sion of all common carriers, railroads, express
corporations or companies, street-railroads, rail-
road corporations or companies, dock or wharfage
corporations or companies, terminal or terminal-
station corporations or companies, telephone and
telegraph corporations or companies within this
State, gas or electric-light and power companies
within this State; and while it may hear com-
plaints, yet the commission is authorized to per-
form the duties imposed upon it of its own initia-
tive, and to require all common carriers and other
public-service companies under their supervision
to establish and maintain such public service and
facilities as may be reasonable and just, either by
general rules or by special orders in particular
cases, and to require such publication by common
carriers, in newspapers of towns through which
their lines extend, of their schedules as may be rea-
sonable and which the public convenience de-
mands. Said commission is hereby given au-
thority to examine into the affairs of said com-
panies and corporations and to keep informed as
to their general condition, their capitalization,
their franchises, and the manner in which their
lines, owned, leased, or controlled, are managed,
conducted, and operated, not only with respect to
the adequacy, security, and accommodation
afforded by their service fo the public and their
[656]
§ 2663
GEORGIA PUBLIC SERVICE COMMISSION
§ 2664
employees, but also with reference to their com-
pliance with all provisions of law, orders of the
;ommission, and charter requirements. Said
:ommission shall have the power and authority,
whenever it deems advisable, to prescribe, estab-
ish, and order a uniform system of accounts to
>e used by railroads and other corporations over
vhich it has jurisdiction hereunder; the same to
>e as far as practicable in conformity with the
ystem of accounts prescribed by the interstate-
:ommerce commission; to examine all books, con-
racts, records, and documents of any person or
orporation subject to their supervision, and
ompel the production thereof. Said commission
hall have the power, through any one or more of
ts members, at its direction, to make personal
■isitation to the offices and places of business of
aid companies for the purpose of examination,
nd such commissioner or commissioners shall
tave full power and authority to examine the
gents and employees of said companies under
iath, or otherwise, in order to procure informa-
ion deemed by the commissioners necessary to
heir work or of value to the public: Provided,
hat nothing in this section shall be so construed
s to repeal or abrogate any existing law or rule
f the public service commission as to notice or
earings to persons, railroads, or other corpora-
ions interested in their rates, orders, rules, or reg-
lations issued by said commission before the
ame are issued, nor to repeal the law of this
itate as to notice by publication of a change in
ates.
Cross References.— See §§ 2630, 2633. As to express and
elegraph companies under commissioners' control, see §
660. As to powers of telephone or telegraph corporation,
ee § 2807. As to general corporate powers of express com-
anies, see § 2383. As to construction of telegraph and
elephone lines, see § 2811. As to rent or sale of electric
ower, see § 2234. As to compelling witnesses as to re-
ates and underbilling, see § 2636.
Constitutionality of Section. — See notes to § 2662.
Notice and Opportunity for Hearing. — This section con-
smplates that notice and an opportunity of a hearing be
iven and that provision may be made for such notice
ither by statute or rule of the commission. This section
i to be construed to mean that the commission shall not
>sue a special order in a particular case,' directed to a
erson or corporation, without first giving notice and an
pportunity for hearing to the person or corporation so
d be affected thereby. Wadley So. Ry. Co. v. State, 137
ra. 497, 73 S. E. 741. See also, Atlanta v. Railway &
*ower Co., 149 Ga. 411, 415, 100 S. E. 442.
Electric Light and Power Companies. — The public na-
ure of the business conducted by electric-light and power
ompanies is clearly indicated by this section placing them
nder the general supervision of the Commission. Power
!o. v. Ham, 139 Ga. 569, 572, 77 S. E. 396.
Discontinuance of Service. — Under this section the com-
lission has no express or implied statutory power to de-
srmine whether a chartered street-railroad company may
ntirely discontinue or abandon service upon a line, or
art thereof, voluntarily constructed by it and devoted to
de public use. Railroad Comm. v. Macon Ry. & Light
|., 151 Ga. 256, 106 S. E- 282.
Fixing Rates — See notes to § 2662.
Regulating Mileage Books.— The commission had statu-
ary authority to pass an order providing that "all rail-
Dads selling mileage or penny scrip books are hereby re-
uired, to pull the same on the trains of the company sell-
ig the same, when presented by the holders for trans -
ortation between points wholly within the State of
reorgia, except where passengers board trains in cities of
5,000 population or more according to the United States
ensus of 1910, in which places mileage or penny scrip
hall be exchanged for tickets." Railroad Commission v.
,ouisville, etc., R. Co., 140 Ga. 817, 80 S. E. 327.
Cited in Ezell v. Atlanta, 13 Ga. App. 95, 78 S. E. 850;
Savannah Elect. Co.
313.
v. Lowe, 27 Ga. App. 350, 108 S. E.
§ 2664. Further powers. — The public service
commission shall have authority to. ascertain the
cost of construction and the present value of prop-
erties in Georgia owned by said corporations or
companies, and to that end may employ necessary
experts. Said commission shall have authority to
prescribe rules with reference to spur-tracks and
side-tracks, with reference to their use and con-
struction, removal, or change, with full power to
compel service to be furnished to manufacturing
plants, warehouses, and similar places of business
along the line of railroads, where practicable and
in the judgment of the commissioner the business
is sufficient to justify, and on such terms and
conditions as the commission may prescribe. It
shall have power and authority to order and com-
pel the operation of sufficient and proper
passenger service when in its judgment inefficient
or insufficient service is being rendered the public
or any community. It shall have power and au-
thority, when in its judgment practicable and to
the interest of the public, to order and compel the
making and operation of physical connection be-
tween lines of railroad crossing or intersecting
each other, or entering the same incorporated
town, or city in this State. It shall have authority
to fix penalties for neglect on the part of railroad
companies to adjust overcharges and losses, or
failure to decline to do so, if deemed unjust, in a
reasonable time. It shall have power and au-
thority to prescribe rules and penalties covering
and requiring the prompt receipt, carriage, and
delivery of freight, the prompt furnishing of cars
to shippers desiring to ship freight, and shall also
be authorized to prescribe rules and penalties for
the transfer of cars through yards of connecting
roads. Said commission shall have power and
authority to order the erection of depots and sta-
tions where it deems the same necessary, and to
order the appointment and service thereat of depot
or station agents. The commission shall also have
the power and authority to regulate schedules and
compel connections at the junction points of com-
peting lines.
Cross References. — See § 2630. As to railroads crossing,
joining, etc., other roads, see §§ 2656, 2585 par. 6, 2671. As
to right to connect switches, see § 2658. As to require-
ments of shippers, see § 2635. As to station accommodation
for passengers, see § 2727. As to location and terminal
approach, see § 2594. As to regulating transportation of
freights, see § 2634.
Section 2585, par. 6 was not repealed by this section.
Savannah Terminals Co. v. Railway Co., 148 Ga. 180, 96
S. E- 257.
Spur Track and Side Track. — Under this section, the
Commission has power and authority to require railroad
companies to build spur-tracks and side-tracks: (1) when
such construction is practicable, and the business to be
derived by the railroad company shows the order to be
reasonable; and (2) when the facts show that such track
is a public track and constructed for the benefit of the
public. Railroad Commission v. Louisville, etc., R. Co.,
148 Ga. 442, 96 S. E. 855.
In suit by a railroad attacking as unconstitutional a state
order under this section requiring it to establish and
operate an industrial spur track, the pecuniary amount in-
volved includes, not only the cost of construction, but also
interest thereon, depreciation, maintenance and operating
expenses, capitalized at a reasonable rate. Western, etc..
Railroad v. Railroad Commission, 261 U. S. 264, 43 S. Ct.
252.
The commission has power, under this section, to per-
mit a carrier to remove spur-tracks and sidetracks. Rail-
[657]
§ 2665
GEORGIA PUBLIC SERVICE COMMISSION
§ 266;
road Comm. v. Macon Ry. & Light Co., 151 Ga. 236, 259,
106 S. E- 282.
Physical Track Connections. — In determining whether
public necessity exists to require railroad companies to
make physical track connections just regard should be
given on the one side to probably resulting advantages,
and, on the other side, to the necessary expenses to be
incurred. Seaboard Air Line Ry. v. Railroad Commission,
240 U. S. 324, 60 L. Ed. 669, 36 Sup. Ct. 260.
A finding of public necessity for a physical track con-
nection can not be supported by the mere declaration of
the commission; there must be sufficient evidence to sup-
port it. Seaboard Air Line v. Railroad Commission, 240
U. S. 324, 60 L. Ed. 669, 36 Sup. Ct. 260.
Cited in Atlantic, etc., R. Co. v. Snodgrass, 14 Ga. App.
668, 82 S. E. 153; Farmers, etc., Co. v. Brooke, 14 Ga. App.
7/8, 82 S. E. 372.
§ 2665. Corporate stocks and bonds. — Each of
the companies or corporations over which the au-
thority of the public service commission is ex-
tended iby law shall be required to furnish said
commission a list of any stocks and bonds, the is-
suance of which is contemplated, and it shall be
unlawful for any of said companies or corpora-
tions to issue stocks, bonds, notes, or other evi-
dences of debt, payable more than twelve months
after date thereof, except upon the approval
of said public service commission, and then
only when necessary and for such amount as may
be reasonably required for the acquisition of
property, the construction, and equipment of
power plants, car-sheds and the completion, ex-
tension, or improvements of its facilities or prop-
erties, or for the improvement or maintenance of
its service, or for the discharge or lawful refund-
ing of its obligations or for lawful corporate pur-
poses falling within the spirit of this provision,
the decision of the commission to be final as to the
validity of the issue. Before issuing such stocks,
bonds', notes, or other evidences of debt, as above
mentioned, such corporations or companies shall
secure an order from the commission authorizing
such issue, the amount thereof, and the purpose
and use for which the issue is authorized. For
the purpose of enabling the commission to deter-
mine whether such order should be issued it shall
make such inquiry or investigation, hold such
hearings, and examine such witnesses, books,
papers, documents, or contracts as it may deem
advisable or necessary. Such corporations or
companies may issue notes or other evidences of
indebtedness for proper corporate purposes and
not in violation of any law, payable at periods of
not more than twelve months from date, without
such consent, but no such notes or other evidences
of indebtedness shall in whole or in part, directly
or indirectly, be refunded by any issue of stocks
or bonds or by any evidence of indebtedness
running for more than twelve months, without the
consent of the commission. Any public service
commissioner of this State or any employee of
said public service commission who shall disclose
or impart to any one, except when legally called
upon by a court of competent jurisdiction, any
fact, knowledge of which was obtained in his
official capacity from or through any proceeding
filed with the said public service commission un-
der this section, shall be guilty of a misdemeanor:
Provided, that this shall not apply to such facts or
information obtained through public hearings or
such as are not confidential in their nature.
As to contracts against public policy, see § 4253. As to
[6
certifying and recording bonds of corporations, see § 2230
As to stock transferable, see § 2583. As to railroad bor^
rowing money, see § 2585 par. 10. As to extensions anc
branch roads, see § 2587. As to sale to or consolidatioi
with other companies, see § 2597. As to bonds of consoli'
dated company, see § 2610. As to penal provision for un-
lawful disclosures, see § 528, P. C.
§ 2666. Liability for unlawful acts. — In case a
common carrier or other corporation or company
mentioned in this section shall do, cause to be
done, or permit to be done any act, matter, or thing
prohibited, forbidden, or declared to be unlawful
or shall omit to do any act, matter, or thing re-
quired to be done, either by any law of the State
of Georgia, by this section, or by an order of the
commission, such common carrier or other cor-|
poration or compamr shall be liable to the persons
or corporations affected thereby for all loss, dam-j
age, or injury caused thereby or resulting there-'!
from, and in case of recovery, if the jury shall!
find that such act or omission was willful, ill!
may fix a reasonable counsel's or attorney's fee I
which fee shall be taxed and collected as part oil
the costs of the case. An action to recover foil
such loss, damage, or injury may be brought in
any court of competent jurisdiction, by any such
person or corporation.
Cross References. — For full treatment of crimes and of-
fenses by and against railroads, see 9 Cum. Dig. 833, 1(
Enc. Dig. 811. As to how costs taxed, see § 5992. As tc
when insurance companies shall pay damages, see § 2549.
As to defense to action, see § 3714, par. 2. As to injurie;
resulting from violation of rules, see § 2640. As to remedy
for violation of storage provisions, see § 2652. As to de
livery to connecting lines, see § 2655. As to illegal dis
crimination, see § 2657.
"Any law of the State of Georgia," is to be construed
as referring to statute law. Southern Bell Tel., etc., Co,
v. Beach, 8 Ga. App. 720, 70 S. E. 137.
The expression "order of the commission," used in this
section has reference to special orders of the commission
and not to its general rules. Southern Bell Tel., etc., Co.
v. Beach, 8 Ga. App. 720, 70 S. E. 137.
Attorney's Fees. — This section does not authorize the
recovery of attorney's fees (in cases where they are not
otherwise recoverable under the general law) where the
thing done or omitted has not been forbidden by some
statutory enactment in this State or by some order of the
commission. Southern Bell Tel., etc., Co. v. Beach, 8 Ga.
App. 720, 70 S. E. 137.
Cited in Savannah Elect. Co. v. Lowe, 27 Ga. App. 350.
108 S. E. 313.
§ 2667. Penalties; proceedings to recover. —
Every common carrier, railroad, street-railroad,
railroad corporation, street-railroad corporation,
express, telephone, telegraph, dock, wharfage, and
terminal company or corporation within the State
and other corporations, companies, or persons!
coming under the provisions of this section, and
all officers, agents, and employees of the same,!
shall obey, observe, and. comply with every order
made by the commission under authority of law.
Any common carrier, railroad, street-railroad,
railroad corporation, street railroad corporation,
express, telephone, telegraph, dock, wharfage, or
terminal company or corporation, cotton-compress
company within this State, and other corporations,
companies, or persons coming under the
provisions of this section, which shall violate
any provision of this section or the acts
heretofore passed, or which fails, omits, or neg-
lects to obey, observe, and comply with any order,
direction, or requirements of the commission here-
tofore or hereafter passed, shall forfeit to the State
of Georgia a sum not more than five thousand
58 ]
§ 2668
GEORGIA PUBLIC SERVICE COMMISSION
§ 2670(1)
dollars for each and every offense, the amount to
be fixed by the presiding judge. Every violation
of the provisions of this section or any preceding
act, or of any such order, direction, or require-
ment of the railroad commission shall be a sepa-
rate and distinct offense, and, in case of a con-
tinued violation, every day a violation thereof
takes place shall be deemed a separate and dis-
tinct offense. An action for the recovery of such
penalty may be brought in the county of the prin-
cipal office of such corporation or company in this
State, or in the county of the State where such
violation has occurred and wrong shall be
perpetrated, or in any county in this State through
which said corporation or company operates, or
where the violation consists of an excessive charge
for the carriage of freight or passengers, or serv-
ve rendered, in any county in which said charges
ire made, or through which it was intended that
such passengers or freight should have been
carried or through which such corporation
operates, and shall be brought in the name of the
State of Georgia by direction of the Governor.
\ny procedure to enforce such penalty shall be
:riable at the first term of the court at which it is
Drought and shall be given precedence over other
business by the presiding judge, and the court
mall not be adjourned until such proceeding is
egally continued or disposed of. The decision in
such case may be taken to the Supreme Court as
low provided in cases of the grant or refusal of
njunctions by judges of the superior courts.
Cross References. — As to trial of cases when State is
party, see § 24. As to definition of penal action, see §
5510. As to where suits against corporations in action for
:ontract or tort brought, see § 2259. As to venue of civil
;ases at law, see § 5526. As to continuance, see § 5710. As
to how causes called and tried, see § 6284. As to fast bills
Df exception, see § 6153. As to fast writs of error, see §
5245.
Constitutionality. — See notes to § 2630.
This section is not unconstitutional under the Fourteenth
Amendment as denying an opportunity to be heard. Wad-
ley Railway Co. v. Georgia, 235 U. S. 651, 35 Sup. Ct. 214,
59 I,. Ed. 405.
Discrimination. — See notes to § 2630.
By Whom Suit Brought. — Under this section a suit for
i penalty for disobedience to the order of the commission
tnust be brought in the name of the State by direction of
the Governor. Wadley So. Ry. v. State, 137 Ga. 497, 509,
73 S. E. 741.
Cited in Savannah Elect. Co. v. Lowe, 27 Ga. App. 350,
108 S. E- 313.
§ 2668. Penalties for aiding and abetting in
Eolations of rules. — Every officer, agent, or em-
ployee of any such common carrier, corporation,
Dr company who shall violate, or procures, aids, or
ibets any violation by any such common carrier
3r corporation or company, of any provision of
this Section, or which shall fail to obey, observe,
Dr comply with any order of the commission or
my provision of any order of the commission, or
who procures, aids, or abets any such common
:arrier or corporation or company in its failure to
Dbey, observe, and comply with any such order,
direction, or provision shall be guilty of a mis-
demeanor, and shall be subject to prosecution in
any county in Georgia in which said common
carrier or corporation or company or officer,
agent, or employee violates the provisions of this
Section or any provision of any order of the com-
mission, or in any county through which said
corporation operates. Any officer, agent, or em-
ployee shall also be subject to indictment under
the provisions of this Section, in any county in
which a subordinate agent or employee of the
company violates the provisions of this Section,
by the approval or direction, or in consequence of
the approval or direction of such officer, agent, or
employee; and the agent or employee who locally
in any county violates the rules or directions of
said commission in pursuance of the direction or
authority of his superior officer or agent of said
company may be called as a witness, and be com-
pelled to testify, showing the authority by which
he acted, and such testimony shall not be used
against such subordinate employee or agent, nor
shall he thereafter be subject to indictment for
said offense.
As to compelling witnesses, see §§ 2636, 2637. As to
penal provision, see § 527 P. C.
Constitutionality. — See notes to § 2630.
Cited in Savannah Elect. Co. v. Lowe, 27 Ga. App. 350,
108 S. E. 313; Wight v. Pelham, etc., R. Co., 18 Ga. App.
195, 89 S. E. 176.
§ 2669. Penalties applicable to all orders of the
commission. — The penalties prescribed by this
Section and the procedure to enforce the same are
made applicable to any and all violations of the
rules, orders, and regulations established by the
commission.
§ 2670. Salaries and expenses. — The contingent
expense fund of the public service commission
shall not exceed three thousand dollars per
annum, out of which it shall pay for office sup-
plies, furniture, postage, stationery, travelling, and
other actual expenses of any commissioner in-
curred by order of the commission in the
discharge of his duties, etc., the said sum or so
much thereof as may be necessary to be paid out
of the State treasury on the order of the Governor.
The salary of the secretary of the public service
commission is fixed at three thousand dollars per
annum. The printing fund of the commission is
fixed at the sum of two thousand dollars per an-
num. The commission is authorized and em-
powered to employ a stenographer at a salary not
to exceed twelve hundred dollars per annum. Acts
1919, pp. 94, 95.
See § 2627.
Editor's Note. — This section was amended by the acts
of 1919, p. 94, by changing the salary of the secretary of
the commission to three thousand dollars per annum in-
stead of two thousand.
§ 2670(1). Name changed to public service
commission, authority, rights, etc. — The name of
the Railroad Commission shall be, and the same
is hereby changed to that of the Georgia Public
Service Commission; that all of the authorit}\
rights, powers, duties, privileges and jurisdiction
of the Railroad Commission of Georgia are hereby
expressly conferred upon the Georgia Public
Service Commission as fully as if so named in any
laws of this State; that all actions and proceedings
now or hereafter pending in the name of the Rail-
road Commission shall survive; and be continued,
heard and determined by and in the name of
Georgia Public Service Commission; and that no
rights, privileges, immunities or appropriations
granted to or made in behalf of the Railroad Com-
mission of Georgia shall merge, lapse, or be lost
[ 659 ]
§ 2670(2)
OPERATION OF RAILROADS
§ 2671
by reason of such change of name, but shall be
conferred, transferred and imposed upon the
Georgia Public Service Commission. Acts 1922,
pp. 143, 144.
Quasi Legislative Character of Order. — An order of the
Georgia Public Service Commission lowering the rates
charged for electricity, is quasi legislative in character, and
the writ of certiorari will not lie from the superior court
to review such an order. As to the hearing, etc., refer to
this case. Mutual Light, etc., Co. v. Brunswick, 158 Ga.
677, 682, 124 S. E. 178.
§ 2670(2). Employees and officials.— The Com-
mission shall have power to employ during its
pleasure, such officers, experts, engineers, statis-
ticians, accountants, inspectors, clerks and em-
ployees as it may deem necessary to carry out the
provisions of this Act, or to perform the duties
and exercise the powers conferred by law upon the
Commission. The compensation of such officials
and all other employees shall be fixed by the Com-
mission at such sum as it may deem reasonable
and proper. Acts 1922, p. 144.
§ 2670(3). Procedure; hearings. — The Com-
mission shall prescribe the rules of procedure and
for taking' of evidence in all matters that may
come before it. In the investigations, prepara-
tions and hearing of cases, the Commission shall
not be bound by the strict technical rules of plead-
ing and evidence, but it may exercise such discre-
tion as will facilitate its efforts to ascertain the
facts bearing upon the right and justice of the
matters before it. In all formal cases heard and
determined, when deemed needful, the Commis-
sion shall render an opinion, setting out the issues
involved in the case, and its decision ruling and
finding thereupon.
The Public Service Commission shall conduct
hearings and investigations in different parts of
the State, when, in the opinion of the Commission,
such hearing will best serve the interest and con-
venience of the public. Acts 1922, pp. 144, 145.
§ 2670(4). Record. — A full and complete record
shall be kept of all proceedings had before the
Commission, on any formal investigation had and
all testimony shall be taken down by the official
reporter appointed by the Commission. Acts 1922,
pp. 144, 145.
§ 2670(5). Deposition of witnesses. — The Com-
mission, or any party, may, in any investigation,
cause the deposition of witnesses residing within
or without the State to be taken in the manner
prescribed by law, for like depositions in civil
actions in civil courts. Acts 1922, pp. 144, 145.
§ 2670(6). Public service corporationis; fees;
default. — There shall be paid by all public service
corporations, or utilities, subject to the jurisdic-
tion of the Public Service Commission, a special
fee in addition to those now required by law.
Such fee shall be fixed by the Comptroller-General
of Georgia, upon each of such public service cor-
porations or utilities, according to the value of its
property, as ascertained by the last preceding
State tax assessment, and shall be apportioned
among such public service corporations or utili-
ties, upon the basis of such valuation, so as to pro-
duce a revenue of seventy thousand ($70,000.00)
dollars per annum, or so much thereof, as may be
necessary, which shall be paid on or before the
20th day of January in each year. The Comp-
troller-General shall notify each public service
corporation or utility of the State of the amount
due by it under the provisions of this Act, not later
than December 1st of each year, and said fee shall
be paid to the State Treasurer on or before the
20th day of January as above provided; such sum
of seventy thousand ($70,000.00) dollars, or so
much thereof as may be necessary, is hereby ap-
propriated and set aside for the purpose of paying
the salaries, compensation, costs and expenses of
the Public Service Commission, its members and
employees, and the public utility counsel above
provided, and no other sum shall be appropriated
therefor.
In case of default in payment by any public
service corporation, company or ' person of such
fee as provided in this section, the Comptroller-
General shall proceed to collect the same, in the
same manner as franchise taxes are now collected.
Acts 1922, pp. 144, 145.
§ 2670(7). Salaries; Expenses; public service
commission fund. — The annual salary of each
Commissioner and of the Chairman of the Com-
mission shall be as at present provided by law, in-
cluding the special attorney now provided by law,
whose term of office and appointment shall con-
tinue as heretofore, except that the special at-
torney's salary shall be four thousand ($4,000.00)
dollars per year. All officers, experts, engineers,
statisticians, accountants, inspectors, clerks and
employees of the Commission shall receive such
compensation as may be fixed by the Commission,
and the salaries as fixed by the Commission foi
the officers, experts, engineers, statisticians, ac-
countants, inspectors, clerks and other employees
and as fixed by this Act for Commissioners, shall
be paid monthly from the funds provided for the
use of the Commission, after being approved by
the Commission.
All expenses incurred by the Commission pur-
suant to the provisions of this Act, including the
actual and necessary traveling and other expenses
and disbursements of the Commissioners, their
officers and employees incurred while on business
of the Commission shall be paid from the funds
provided for the use of the Commission, after be-
ing approved by the Commission.
The funds assessed and collected as hereinbe-
fore provided for shall be specially designated as
the Public Service Commission Fund, and shall be
expended only and exclusively as herein provided
and directed. Acts 1922, pp. 144, 146.
SECTION 3.
Operation of Railroads.
§ 2671. Railroads may cross each other. — Any
railroad company chartered by the legislature of
this State, and also any person or persons or com-
pany owning or operating a public or private rail-
road in this State, when necessary to reach
minerals, timber, or other materials, shall have the
right to cross any other railroads heretofore or
hereafter built, or to be built, in this State, upon
the following terms: they shall be allowed to cross
at grade points, or at any other point where the
[ 660]
§ 2672
OPERATION OF RAILROADS
§ 2674
same shall not obstruct the other road, and may be
allowed to cross by a tunnel or bridge, if necessary,
said tunnel or bridge being absolutely secure. Acts
1870, p. 428; 1899, p. 31.
See §§ 2585, par. 6, 2664. See also, 9 Cum. Dig. 775.
Condition Attached to Crossing. — A railroad corporation
which is permitted to construct its tracks across an exist-
ing city street or public road does so subject to the con-
dition that it must submit to the increased inconvenience
to it which may result from the growth and development
of the city or country and the consequent increase of
travel in the usual methods along such street or road.
Southern R. Co. v. Atlanta R., etc., Co., Ill Ga. 679, 36 S.
E. 873.
Taking by Private Railroad. — Even if this section be con-
strued to authorize the taking of private property by a
private railroad for the purpose of crossing another road,
and when so construed is a valid and constitutional law,
there is no law of force in this State which provides a
method for fixing the compensation to be paid the owner
of the railroad sought to be crossed, when the right to
cross is refused. Lumber Co. v. Georgia, etc., Railway, 111
Ga. 714, 36 S. E. 942.
Street Railway. — Even if the provisions of this section,
are applicable to the crossing by a street-railroad of any
other railroad, the phrase, "heretofore or hereafter char-
tered by the legislature of this State," embraces a street-
railroad company whose charter, though granted by the
secretary of State, has been confirmed and made valid by
an act of the General Assembly. A company having such
a charter may properly be termed one "chartered by the
legislature." Southern R. Co. v. Atlanta R., etc., Co., Ill
Ga. 679, 36 S. E. 873.
A company owning and operating such a street-railway
may under the permission of the proper municipal or county
authorities, construct its lines across the track of a steam-
railroad company and use the same without instituting
condemnation proceedings or being required to pay dam-
ages. Southern R. Co. v. Atlanta R., etc., Co., Ill Ga. 679,
36 S. E. 873.
Same — Charter Power to Use Steam. — That a street-
railway company has under its charter authority to use
steam as well as electricity as a motive power is a matter
of no consequence in testing its right in a given instance
to cross a railroad on a street under a municipal grant re-
stricting the company to the use of electric power, and
where it is not seeking to employ steam power. Southern
R. Co. v. Atlanta R.. etc., Co., Ill Ga. 679, 36 S. E. 873.
§ 2672. Railroads availing of the privilege sub-
ject to restrictions. — Any public or private rail-
roads availing themselves of the privileges of 'the
^receding section shall be subject to the same
■estrictions, liabilities, and penalties, and governed
)y the same rules, as to crossings, as now pro-
/ided by law for chartered railroads: Provided,
:hat where any tram or unchartered road crosses
i chartered road it may be required of said tram
)r unchartered road to put in the necessary and
proper safety switches and signal service on both
sides of said chartered road.
See § 2585 par. 6. As to stopping trains at crossings, see
§ 2687.
§ 2673. (§ 2220.) Railroad crossings. — All
•ailroad companies shall keep in good order, at
heir expense, 'the public roads or private ways
:stablished pursuant to law, where crossed by
:heir several roads, and build suitable bridges and
nake proper excavations or embankments, accord-
ng to the spirit of the road laws. Acts 1838,
2obb, 95.
For full treatment of crossings, see 4 Cum. Dig. 511 et
seq., 4 Enc. Dig. 82 et seq.
Private Way. — This section et seq. does not apply to a
private way not established by law. Willingham v. Rail-
way Co., 113 Ga. 374, 38 S. E. 843.
The words, "established pursuant to law." appearing in
this section, limit and qualify only the words, "private
ways," and have no reference to the words, "public roads."
Southern Railway Co. v. Combs, 124 Ga. 1004, 53 S. E. 508. ' feet beyond
661 ]
Path or Unfrequented Way. — Railroads are not bound to
keep in good order and maintain or establish bridges, etc.,
wherever their roads happen to cross a path or unfre-
quented way. Such ways are not private ways in the
sense or spirit of the road laws. Berry v. Railroad, /2
Ga. 137.
Streets. — The duties required of railroad companies by
the provisions of this section apply to streets as well as
public and private road crossings. Western, etc., Railroad
v. Atlanta, 74 Ga. 774.
Crossing of Two Roads in City Streets. — Where there is
a crossing of the tracks of two railroad companies in a
city street, it is ordinarily, as between the companies, the
duty of the crossing company, at whose instance and for
whose benefit the crossing was made, to keep the cross-
ing in repair. Macon R., etc., Co. v. Southern R. Co., 28
Ga. App. 339, 110 S. E. 912.
Where the track of a railroad company crosses the track
of another railroad company in a city street, the duty of
keeping the crossing in repair rests upon both companies,
and either may and should make all necessary repairs, but
the company making them may recover the expense of
such repairs from the other company, if, as between the
companies, the duty of making the repairs was upon the
latter. Macon R., etc., Co. v. Southern R. Co., 28 Ga.
App. 339, 110 S. E. 912.
Roads Parallel to Railroad. — This section and § 2674 ap-
ply to road crossings, not to roads running parallel to
railroads. Collier v. Railroad, 76 Ga. 611.
Unfinished Railroad. — The provisions of this section ap-
ply to a railroad company where the public road is crossed
only by an excavation made for the purpose of laying
therein, across such public road, a railroad-track of the
company, and before any railroad-track has been laid and
before the work of constructing the railroad is completed
across such public road. Mixon v. Railway, 152 Ga. 670,
111 S. E. 197.
Same — Defense of Railroad. — A wrongful act or neg-
ligence of an employee or independent contractor in failing
to keep a public road in good order where crossed by an
excavation made for the purpose of constructing a railroad
therein, being an act in violation of this section, the rail-
road is not absolved from liability upon the ground that
the alleged tort was committed by an employee or inde-
pendent contractor. Mixon v. Savannah, etc., Railway, 28
Ga. App. 390, 111 S. E. 690.
Bridges. — Railroads are not required by this section to
build bridges for crossings which are neither public nor
private ways established by law, nor are they responsible
for damages resulting from the construction of a bridge
narrower than the road at such a crossing. Cox v. East
Tennessee, etc., Railroad, 68 Ga. 446.
It was held under this section that where a bridge over
the track reasonably required a railing to project from the
bridge a short distance along the margin of the highway,
in order to render the ciossing safe, and a traveler whose
mule took fright while being driven across the bridge was
precipitated from the highway and injured in consequence
of the absence of such railing, the company is liable in
damages. Railroad, etc., Co. v. Mayo, 92 Ga. 223, 17 S.
E. 1000.
Same — Keeping in Repair of Own Volition. — Where a
railroad builds and undertakes to keep in repair for the
accommodation of the public a bridge over or approach to
a private road crossing, this is such an invitation to the
public to use the same as would render the company liable
for injuries resulting from defects negligently permitted to
exist, even though it be not affirmatively shown that such
crossing is one which the company is bound by this sec-
tion to keep in safe order and condition. This case is dis-
tinguishable from Cox v. Railroad, 68 Ga. 446. Railroad,
etc., Co. v. Robertson, 95 Ga. 430, 22 S. E. 551.
Same — Mandamus to Compel Building. — Mandamus is
the proper remedy under this section, to require a rail-
road to construct a bridge across a street in certain cases.
Railroad Co. v. Atlanta, 156 Ga. 251, 119 S. E. 712; Miller
v. Macon, 28 Ga. App. 390, 111 S. E. 213.
Applied in King v. Central, etc., R. Co., 107 Ga. 754, 33
S. E. 839; Western, etc., R. Co. v. Smith, 145 Ga. 276, 88
S. E. 983.
Cited in Atlantic, etc.. R. Co. v. Wildman, 29 Ga. App.
745, 116 S. E- 858.
§ 2674. (§ 2221.) Extent of such crossings. —
Such crossings include the width of land on both
sides of the road allowed by charter or appro-
priated by the company therefor, and for as many
each way, as is necessary for a
§ 2675
OPERATION OF RAILROADS
§ 2677(2)
traveler to get on and off the crossing safely and
conveniently.
See notes to § 2673.
§§ 2675-2677.— Repealed by Acts 1918, p. 212,
herein codified as §§ 2677(l)-2677(4).
Editor's Note. — These sections were repealed by the acts
of 1918, p. 212. The new provisions will be found codified
as §§ 2677 (l)-2677 (4). For full treatment of cases on the
subject of these sections, see 4 Cum. Dig. 515 et seq., 4
Enc. Dig. 85 et seq. See also, notes to § 2677 (2).
§ 2677(1). Bell and whistle. — Each locomotive
engine operated on the line of any railway in this
State shall be equipped with a signal bell and a
steam signal whistle of at least the power of those
with which the engines of the several railroads in
this State are equipped at the time of the passage
of this Act. Acts 1918, p. 212.
§ 2677(2). Blow-post; signal of crossing; look-
out and exercise of care. — Upon the line of such
railway in this State, and at a point four hundred
yards from the center of its intersection at grade
with any public road or street used by the public
generally in crossing the tracks of said railway,
and on each side of said crossing, there shall be
erected by the railroad company, persons or cor-
porations owning and operating said railway, a
blow-post to indicate the direction of such cross-
ing, and the engineer operating the locomotive
engine of any railroad train moving over the track
of said railroad shall be and he is hereby required,
when he reaches the said blow-post, as a signal of
approach to said crossing, to blow through said
whistle two long and two short blasts at intervals
of five seconds between each blast; said blasts to
be loud and distinct. In addition thereto, after
reaching the blow-post furtherest removed from
said crossing, and while approaching said cross-
ing, he shall keep and maintain a constant and
vigilant lookout along the track ahead of said
engine, and shall otherwise exercise due care in
approaching said crossing, in order to avoid doing
injury to any person or property which may be on
such crossing, or upon the line of said railway at
any point within fifty feet of such crossing. Acts
1918, p. 212.
Cross Reference. — As to the penalty for violation of this
section, see P. C, § 518 (1). As to distance from crossing
at which speed must be reduced, so § 1770 (5).
Editor's Note. — This section was codified from the Acts
of 1918, p. 212. It replaces § 2675, changing the law as
contained in that section in two main particulars. The
older section required the whistle to be blown upon reach-
ing the blow post, until the locomotive arrived at the pub-
lic road. This section requires a blowing of two long and
two short loud and distinct blasts, at intervals of five sec-
onds between each blast.
The older section provided that the speed of the loco-
motive must be simultaneously and continuously checked,
so as to enable the engineer to stop in time to prevent ac-
cidents. This section is less stringent in that it only re-
quires the engineer to keep a constant and vigilant look-
out on the track ahead, and use due care in avoiding acci-
dent on the crossing, or upon the line at any point within
fifty feet of such crossing.
Those constructions of § 2675 which will be of help to the
searcher in applying this section are given in this note.
For the purpose of convenience the phrase "this sec-
tion" is used in the following note, although most of the
cases were actually decided under § 2675. For full treatment
of the cases on this subject, see 4 Cum. Dig. 514 et seq. ; 4
Enc. Dig. 85 et seq.
Strict Construction. — This section being penal, should be
strictly construed. Morgan v. Central Railroad, 77 Ga. 788.
Definition J»nd Proof of Public Road. — See 10 Cum. Dig.
636, 637, 638. See also, Bugg v. Cook, 32 Ga. App. 116,
122 S. E. 714.
What Is a Road Crossing. — A road crossing, such as is
referred to in this section, is the crossing by a railroad of
a public highway, not only used but maintained as such
by the proper authorities having the same in charge. Coast
Line Railroad Co. v. Bunn, 2 Ga. App. 305, 58 S. E. 538.
The provisions of this section have no application except
to crossings where a public road established pursuant to law
crosses the track of a railroad, and consequently the
statutory duties are not incumbent upon an engineer when
approaching the intersection with a railroad of a road
which, though to a greater or less extent used by the pub-
lic, has never been established as a public road in the
manner pointed out by law. Comer v. Shaw, 98 Ga. 543-,
25 S. E. 733.
The crossings of public roads only, and not those of
private ways, are embraced in this section. Railroad Co.
v. Cox, 61 Ga. 455.
This section is not applicable to a footway crossing a
track in town although a harmless reference thereto in a
charge is not a cause for reversal. Central Ry. v. Bond,
114 Ga. 913, 41 S. E. 70.
Overhead Trestle or Bridge. — This section is not ap-
plicable to a crossing where the railroad-tracks cross a
public highway by means of a trestle over the public road.
Barton v. Southern Ry. Co., 132 Ga. 841, 64 S. E. 1079;
Railway Co. v. Tapley, 145 Ga. 792, 89 S. E. 841.
This section is applicable to grade crossings only and
not to public roads passing above or beneath the track of
a railroad. McElroy v. Georgia, etc., R. Co., 98 Ga. 257.
25 S. E. 439.
Collision Not Necessary. — A defendant may be liable un-
der this section, although there is no actual collision of the
engine and cars with the person or property injured by
such negligence. Railroad & Banking Co. v. Wynn, 42
Ga. 332.
If, by reason of a failure to observe the duty required
by this section the locomotive comes within such close
proximity to the animal that it takes fright, runs away,
and injury results to the person in consequence of being
thrown from the vehicle, the company is liable for such
injury, although there be no actual contract between the
locomotive and the vehicle or its occupant. Railway Co.
v. Shobe, 142 Ga. 767, 83 S. E. 786. Bowen v. So. R. Co.,
95 Ga. 488, 22 S. E. 695.
Trains Working between Blow-Posts. — This section ap-
plies in terms to trains approaching or passing beyond
points where blow-posts should be located, and not to those
working exclusively between such points. Morgan v.
Central Railroad, 77 Ga. 788.
Person Standing on Track.— The protection of life and
property on the highway where it is crossed by a railroad
track is within the purpose of this section; and whether a
person on the crossing is in actual motion or is tem-
porarily standing does not make two such distinct situa-
tions that the section applies wholly for the protection of
persons in the one and not at all for those in the other.
Railway Co. v. Motz, 130 Ga. 414, 418, 61 S. E. 1.
Trespassers. — Though the person upon the line of the
railway, not on the crossing, at a point within fifty feet of
the crossing, if there without license or permission, would
be a trespasser, nevertheless the duty would be on the
engineer to maintain a lookout and exercise due care not
to injure him. Atlantic Coast Line R. Co. v. Fulford, 159
Ga. 812.
The fact that a new duty as to a trespasser is, by the act
of 1918, (this section) imposed upon the engineer to exer-
cise care not to injure a person on the railway 'track, that
does not relieve the person on the railway track of the
character of a trespasser, if, prior to the passage of the
act, he would have been a trespasser on account of being
on the track. Atlantic Coast Eine R. Co. v. Fulford, 159
Ga. 812.
While this act does not change the character of the act
of a person walking on the railroad-track without permis-
sion or license and not at a crossing, it does impose, in pars.
2 and 4 upon the engineer operating a locomotive engine
of a railroad-train moving over the track of such railroad,
the duty to blow the whistle of the engine in the manner
prescribed, and in addition thereto it makes it the duty of
the engineer while approaching the crossing to maintain a
constant and vigilant lookout along the track ahead of the
engine and to otherwise exercise due care in approaching
the crossing, in order to avoid doing injury to any per-
son or property which may be on the crossing or upon the
line of railway at any point within fifty feet of such cross-
ing. Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812.
Stock Killed. — This section applies where stock is killed
between the blow -post and the crossing. Port Royal, etc.,
[ 662 ]
2677(3)
OPERATION OF RAILROADS
§ 2677(6)
k. Co. v. Phinizy, 83 Ga. 192, 9 S. F. 609; Bugg v. Cook,
2 Ga. App. 116, 118, 122 S. F- 714.
j Failure to Comply with Section as Negligence. — Failure
o comply with the "blow-post law" is negligence per se,
f such failure is the proximate cause of the injury,
southern Railway Co. v. Combs, 124 Ga. 1004, 1013, 53 S.
E 508; Georgia & Alabama Ry. Co. v. Cook, 114 Ga.
60, 40 S. F- 718; Western & Atlantic R. Co. v. Strick-
and, 114 Ga. 133, 39 S. F. 943; Central Railroad Co. v.
smith, 78 Ga. 694, 3 S. F. 397; Western & Atlantic R.
^o. v. Jones, 65 Ga. 631; Augusta and Savannah R. Co.
/. McFlmurry, 24 Ga. 75. Seaboard Air-L,ine Railway v.
Hollis, 20 Ga. App. 555, 559,- 93 S. F. 264; Davis v. Whit-
:omb, 30 Ga. App. 497, 118 S. F. 488.
Although a failure to observe statutory requirements as
:o duties required of those in charge of a train when ap-
woaching a crossing is not negligence per se as to one not
it the crossing, a failure to perform any of the acts re-
mired by this section may, independently of the statute,
inder the circumstances of the particular case, amount to
legligence. Hines v. Rubnitz, 26 Ga. App. 354, 106 S. E.
i89.
Care Used by Traveler.— Though a traveler may not
(bserve that amount of care and diligence which would be
ixercised under like circumstances by an ordinarily prudent
)erson, he is not necessarily precluded from recovering
or injuries to his person, received on the crossing, if, af-
er it is apparent that the engineer of the company is dis-
>beying the provisions of this section, he then exercises
trdinary care and diligence in endeavoring to escape the
onsequences of the company's negligence. Louisville &
vTashville Railroad Co. v. Hames, 135 Ga. 67, 70, 68 S.
J. 805; Comer v. Barfield, 102 Ga. 485, 31 S. F. 89; Rail-
oad Co. v. McTendon, 119 Ga. 297, 46 S. F. 106; Railroad
:o. v. Floyd, 17 Ga. App. 461, 87 S. F. 688.
Observation by Engineer. — A charge that an engineer
aust exercise his faculties of sight and hearing so that
Key will be effective is erroneous; this section makes no
uch requirement. See Flberton v. Thornton, 32 Ga. Apr.
59, 122 S. F. 795. PP'
Applied in So. Ry. Co. v. Pair, 32 Ga. App. 378, 123 S.
§ 2677(3). Penalty for neglect by engineer;
ell in cities, towns and villages; lookout and
xercise of care; ordinances. — If any engineer
Derating a locomotive engine along the line of
aid railroad shall neglect to blow said whistle, or
eglect to exercise due care, or neglect to keep and
laintain a constant and vigilant lookout along the
rack of said road ahead of his engine, in order to
void doing injury to persons or property which
light be upon such road crossing, or upon the line
f said railroad within fifty feet of such crossing,
e shall be guilty of a misdemeanor; provided!
owever, that within the corporate limits of cities!
:>wns and villages of this State the said railroad
ompany shall not be required either to erect the
low-post hereinbefore provided for, or to blow
lie whistle of their locomotives in approaching
be crossing or public roads in said corporate
mits, but in lieu thereof the engineer of said
Dcomotive shall be required to signal the approach
f his train to such crossing in said corporate
mits by constantly tolling the bell of said locomo-
!ve, and on failure to do so the penalties of this
ection shall apply to such offense; provided fur-
ber, that nothing in this proviso contained shall
e held to relieve said engineer or the said
ailroad company of his or its duty of keeping and
laintaining a constant and vigilant lookout along
ie track ahead of its engine while moving within
ie corporate limits of said city, town or village,
r excusing such railroad company or such engi-
eer from exercising due care in so controlling the
lovements of such trains as to avoid doing injury
3 persons or property which may be on such
rossing within said city or within fifty feet of said
rossing on the line of such railway, or for failure
to observe any ordinance of such city, town, or vil-
lage, which may lawfully be passed, regulating the
speed at which railroad trains may be run therein.
Acts 1918, pp. 213, 214.
As to penalty for the violation of this act, see §§ 518 (1)
and 519 (1) P. C.
Instructions. — In view of the fact that it was proved
that the defendant blew the whistle of its locomotive, it
was not error for the court to fail to charge the portion of
this section, relative to the manner of approach within the
corporate limits of a town. Henes v. Owens, 27 Ga. App.
373, 108 S. F. 478. This was on the ground that the plain-
tiff had not relied on this section. Fd. Note.
In W. & A. Railroad v. Mathis, 32 Ga. App. 308, it was
held harmless error to charge this section after stating
that the rest of the act of 1918 was inapplicable, where the
action was for injury within the 'corporate limits of a
city, and this section contains matter inapplicable to such
actions.
In view of this section the court did not err in refusing
to charge that where the injury was within the corporate
limits if the railroad company either blew its whistle or
tolled its bell there was sufficient compliance with the
statute, but if the whistle were blown it would not be
necessary to toll the bell, and vice versa. Flbertan R.
Co. v. Thornton, 32 Ga. App. 259, 122 S. F. 795.
Since the passage of the act from which this section was
derived, it is no longer necessary for the engineer to check
and keep checking his engine so as to stop in time if any
person were crossing the track, hence, it was error for
the court to charge that failure to have the engine so un-
der control, amounted to negligence as a matter of law.
Louisville & N. R. Co. v. Faust, 30 Ga. App. 310, 117 S.
E. 761.
§ 2677(4). Existing duties. — The enumeration
of certain specific duties as in this Act expressed
shall in nowise be so construed as to relieve any
railroad company from any duty or liability which
may be imposed upon them by existing laws.
Acts 1918, pp. 212, 214.
§ 2677(5). Erection of sign boards required. —
Every person, firm or corporation operating a
railroad in this State, shall be required to erect
and maintain a sign board at least four feet and
six inches in height at a point on such right-of-
way not less than one-half mile nor more than
one mile on each side of every station at which
there is a switch, not less than one-half mile nor
more than one mile on each side of every draw
bridge; and not less than one-half mile nor more
than one mile on each side of every railroad
crossing at grade; the said boards, to be where
they can be plainly seen by persons operating
locomotives, and to be on the right hand side of
the track approaching such station, draw bridge
or railroad grade crossing. Acts 1913, pp. 114,
115.
As to the penalty for the violation of this section, see §
526 (2) P. C.
§ 2677(6). Standard signs required. — It shall
be the duty of the railroad commission to desig-
nate a standard sign, or signs, and require its
use by railroad to designate a crossing of a pub-
lic highway across a railroad, and it shall be un-
lawful for any person, firm or corporation to use
a sign in similitude of said sign for advertising
or for any other purpose except at a place desig-
nated by a railroad to designate a regular cross-
ing; and it shall be the duty of the county au-
thorities having in charge the working of the
roads of the county in any county where a sign
is erected contrary to this law to remove and
destroy the same. Acts 1918, p. 268.
As to the penalty for the violation of this section, see
§ 528 (1) P. C.
[663 ]
§ 2677(7)
OPERATION OF RAILROADS
§ 2677(14'
§ 2677(7). Designation of crossings as "safe"
or "unsafe." — Wherever in this State a public
highway shall cross the main line of any railroad
at grade, not in an incorporated town or city, it
shall be the duty of the County Commissioners,
Ordinary, or other authority in charge of roads
in said county to designate each such grade
crossing in their respective counties either as a
"'safe crossing" or "unsafe crossing." To be
designated as a "safe crossing" it must be one
with an open and clear view of the railroad
track in each direction for at least two hundred
yards from said crossing, and the approaches
thereto, without obstruction of view. They shall
designate as "unsafe crossing" all such crossings
where there is no such clear and unobstructed
view as stated above or where there is an ab-
rupt crossing, or where the public road runs
parallel or practically parallel with the railroad
on approaching the crossing, or wherever on ac-
count of the great frequency of the use of the
crossing or for other cause, the same is par-
ticularly dangerous to travel in the judgment
of said authorities. Acts 1925, p. 322.
As to the penalty for violation of this section, and the
eight sections next following, see P. C, § 528 (11).
Editor's Note. — This act insofar as it regulates the
crossing of railroads by motor vehicles supersedes the
provisions of § 1770 (51) of this code insofar as that sec-
tion regulates the crossing of railroads.
§ 2677(8). Notice to railway company. —
Wherever said crossings have been so classified
as provided in § 2677(7), it shall be the duty of
the county authorities aforesaid to notify each
railroad company on whose line the respective
crossings exist in said county, of the location
and classification of the crossings aforesaid.
Said notice to the railroad companies shall be
given by mail to the General Manager, or other
executive officers of said railroad, and shall be
given on or before November 1, 1925. Pro-
vided, nevertheless, that said county authorities
shall have the authority from time to time in the
future wherever new hazards arise, to change
the classification of any crossing from safe to
unsafe, and to designate the classification of such
new crossings as shall hereafter be established
and to give sixty days notice to the railroad
companies in like manner as stated above.
Acts 1925, p. 322.
§ 2677(9). Signs at dangerous crossings. — The
said railroad companies shall on or before the
first day of January, 1926, or thereafter on sixty
days notice, from the county authorities afore-
said, erect at the approach to each crossing
designated as a dangerous crossing a white sign
with red letters thereon, raised not less than ten
feet from the ground, and not less than thirty
inches by forty inches in size, which shall be
placed on the right hand side of the approach to
said crossing, and approximately one hundred
feet from the rails of said railroad track, except
where two roads intersect less than one hun-
dred feet from the crossing, when the same
shall be placed approximately at the intersec-
tion, which sign shall be lettered with the words
"Georgia Law — Stop — Unsafe R. R. Crossing,"
which lettering shall not be less than nine inches
in height. Acts 1925, pp. 322, 323.
§ 2677(10). Full stop by motor vehicles at un-
safe crossings. — Every person operating a motoi
vehicle on approaching a crossing so designatec
as an unsafe crossing, shall be and is hereby re-
quired to bring his vehicle to a full stop at j
distance of not exceeding fifty feet from th<
nearest rail of the track and before he shall
cross thereover, or attempt to do so. Acts 1925!
pp. 322, 323.
§ 2677(11). Signs at safe crossings. — At all
crossings designated as safe crossings the saici
railroad companies shall erect a sign similar tcj
the sign required in § 2677(9) in size and shape;
which shall have thereon the words "R. Rj
Crossing — Slow Down to 6 Miles — Ga. Laws.'
Acts 1925, pp. 322, 323.
§ 2677(12). Speed of motor vehicles at saf<|
crossings. — It shall be the 'duty of every person
operating a motor vehicle over a railroad cross-
ing, so designated as a safe crossing, and marked
with warning sign as above, to slow down his
said vehicle on approaching said crossing to i
speed of not more than six miles per hour, anc
shall not cross over said railroad crossing, or at-
tempt to do so, at a greater speed than six miles
per hour. The offenses created herein shall nol
be considered as warrantable offenses but prose-
cutions shall be by indictment or accusation.
Acts 1925, pp. 322, 323.
As to distance from crossing at which speed must bej
reduced, see notes to § 1770 (5).
§ 2677(13). Applicability of act.— The provi-j
sions of this Act shall apply to the tracks oi
street railroads and interurban railroads - only
outside of the incorporated limits of municipali-|
ties, and it shall not interfere with the regula-
tions prescribed by the ordinances of the various!
municipalities. It shall not apply to a railroadji
crossing regularly protected by gates or watch-'
men. Acts 1925, pp. 322, 324.
§ 2677(14). Act of negligence; not to apply
to damage suits; error. — A failure to observe
this Act shall not be considered as an Act oil
negligence per se in any action against the rail-l
road company for injury to person or property;
but the facts relating to any failure to observe
the requirements hereof may be considered along!
with the other facts in the case in determining!
the questions of negligence, if any.
Provided, nevertheless, that the rule of law in]
reference to presumptions against railroads shall
not be affected by this Act, and provided further!
that in the trial of any Civil Case involving dam-
ages to person or property at or near any suchj
crossing, it shall be unlawful for this Act to bel
read to, or commented before any jury empan-
nelled to try any such civil case, nor shall the
judge upon the trial of such civil case, charge!
the provisions of this Act; the true intent of this)
Act being not to change the existing law in
reference to civil cases for the recovery of dam-|
ages on account of personal injuries or property!
damage at or near any railroad crossing.
Provided, further, that the charging, reading
or discussing of this Act within the hearing of
a jury in the trial of a case arising from injuries
sustained or suffered at or near a railroad cross- [
ing shall be and constitute reversible error. Acts
1925, pp. 322, 324. . |
[664]
2677(15)
OPERATION OF RAILROADS
§ 2683
§ 2677(15). "Main line" defined.— The phrase
main line" as used in the § 2677(7) shall mean
ny railroad track or set of tracks over which
igularly scheduled trains are customarily oper-
ted. Acts 1925, pp. 322, 325.
As to the penalty for violation of this section, and the
ight sections next preceding, see P. C, § 528 (11).
§ 2678. (§ 2225.) Injuries. — When such injury
ccurs, the onus is upon the company to prove
ach fault on the part of the injured persons.
See § 5746. As to damages by running of cars, etc., see
2780.
§ 2679. (§ 2226.) Suits, where brought.— Such
lits may be located in the county where the in-
iry occurs, and service perfected as in case of
illing stock.
See § 2798.
§ 2680. (§ 2227.) Railroads over which cross-
.gs are required. — When any road over which a
ossing is required shall be obstructed, or not in
Dod order at such crossing, a road commis-
oner, or an overseer of the road district where
le crossing is, must notify the nearest agent or
nployee of the company, in writing, to remove
i'ch obstructions, or to put such crossing in
-oper order, within fifteen days from the date
: such notice. Act 1838, Cobb, 956; Acts 1894,
37.
§ 2681. (§ 2228:) Requisition, when to be cora-
ied with. — If such requisition is not complied
ith, it must be done by the overseer of the
>ad, and within five days after he shall have
scharged such dut3^ he must report under
ith, in writing, to the commissioner of the dis-
ict, 'the amount and value of the services per-
rmed.
§ 2682. (§ 2229.) Execution shall issue.— The
)mmissioners shall then issue execution, under
leir hands and seals, directed to any lawful
ficer, for the amount of such value and the
>sts of the proceeding against such defaulting
tilroad company, as in case of other road de-
ulters.
§ 2683. (§ 2230.) Money raised, how disposed
I — The amount, when collected, must be paid
t the persons who performed the labor, pro
tta, and according to the labor performed by
ich, and for other expenses of said work, if any.
§ 2684. (§ 2231.) Defenses.— The defendants
ay defend themselves from such fi. fas. as
:her defaulting road-workers may.
§ 2685. (§ 2232.) Plank and other roads sub-
:ct to the same provisions. — The provisions of
lis Article are, so far as applicable, extended to
ly plank, macadamized, turnpike, or other road
longing to private individuals or a joint-stock
)mpany.
§ 2686. (§ 2233.) Public highways, etc.— Pub-
c highways, bridges, or ferries can not be ap-
ropriated to railroads, plank roads, or any other
)ecies of road, unless express authority is
ranted by some constitutional provision of their
larter.
Cross References.— See § 2585, par. 5. As to aquisition
j right of way by grant, see 9 Cum. Dig. 770, 10 Enc. Dig.
i0. As to what are public roads, see § 629. As to com-
lissioners or ordinary suing railroads, see § 692.
Highways Under Section. — Under this section highways,
in the broad sense, include streets. Davis v. Railway Co.,
87 Ga. 605, 608, 13 S. E. 567.
Consent of City. — Where a street railway has power un-
der its charter to lay tracks along streets, a city may
consent to such use of streets, though it is not expressly
authorized by its charter to grant such a privilege. Almond
v. R. Co., 108 Ga. 417, 34 S. E. 6.
Where a railroad company and another are owners of
property lying upon the opposite sides of, and abutting
upon, a street the fee to which is in them, it is primarily
no abuse of discretion for the municipal authorities, hold-
ing the mere easement as for a right of way, to authorize
such lot owners to so construct across such street a rail-
road track as to connect the premises of the two respective
lot owners; provided the proposed plan of construction be
not inconsistent with the reasonable exercise upon the
part of the public of its right of way. Hanbury v. Wood-
ward Lumber Co., 98 Ga. 54, 26 S. E. 477.
§ 2687. (§ 2234.) Trains must stop at railroad
crossings. — Whenever the tracks of separate and
independent railroads cross each other in this
State, all engine-drivers and conductors must
cause the trains which they respectively drive
and conduct to come to a full stop within fifty
feet of the place of crossing, and then to move
forward slowly. The trains of the road first con-
structed and put in operation shall have the
privilege of crossing first: Provided, that when-
ever either or any of the railroads whose tracks
shall cross in the manner herein contemplated
shall place at such crossing or crossings modern
automatic interlocking and derailing switches,
and shall establish and maintain at such cross-
ings signal towers in which an operator shall
continually be present, it shall not be necessary
for trains to stop at such crossings; and the pro-
visions of this section shall not apply to trains
crossing other tracks guarded in the manner
herein provided; but all trains approaching
crossings so guarded shall be under such control
that they may be stopped on signal. Acts 1882,
p. 137; 1901, p. 36.
See §§ 2671, 2672.
Street Railway — This section does not apply to an in-
tersection by a street-railroad track of a commercial rail-
road track. Georgia Railway & Electric Co. v. Joiner, 120
Ga. 905, 48 S. E. 336; Railway & Electric Co. v. Carroll,
143 Ga. 93, 84 S. E. 434.
Diligence Required of First Passing Train. — While this
section declares that whenever the tracks of different rail-
roads cross each other, the trains of the road first con-
strued and put in operation have the privilege of crossing
first, nevertheless, in making the prescribed stop within
50 feet of the crossing and in approaching it as provided
by this section, those in charge of the train which has the
right of passing first must use extraordinary care and dili-
gence to protect the safety and welfare of its passengers.
Coast Line Railroad Co. v. Adeeb, 15 Ga. App. 842, 84 S.
E. 316.
Exemplary Damages. — Where the proof merely shows a
failure to observe this section, exemplary damages are
not recoverable. There must be proof of wilfulness, wanton-
ness, malice or oppression. So. Ry. Co. v. Davis, 132 Ga.
812, 65 S. E. 131.
Cited in Little v. So. Ry. Co., 120 Ga. 347, 47 S. E. 953.
§ 2688. (§ 2235.) Railroads to post bulletins of
delayed trains. — Whenever any passenger-
train, on any railroad in this State, shall be more
than one half of one hour behind its schedule
time when it passes a depot at which there is a
telegraph-operator, during the hours that such
operator is required to be on duty, it shall be the
duty of such railroad company to keep posted at
every succeeding telegraph-station along its line
the time such train is behind its schedule: Pro-
vided, that such bulletin shall not be required to
be posted at any station until one half hour be-
fore the regular schedule time at which such
[ 665 ]
§ 2689
OPERATION OF RAILROADS
§ 2698(1
train is to arrive at the station at which such
bulletin is required to be kept. Acts 1884-5, p.
119.
§ 2689. (§ 2236.) Penalty.— For every willful
violation of the requirements of the preceding
section, said railroad company shall be liable to
pay to the State of Georgia twenty dollars, which
may be collected by suit in any court having
competent jurisdiction.
§ 2690. (§ 2237.) Qualifications of railroad tele-
graph-operators. — No railroad company shall
employ in this State any telegraph-operator to
receive and transmit dispatches governing the
movement of trains, who is less than eighteen
years of age, and who has not had at least one
year's experience as a telegraph-operator, and
who has not stood a thorough examination be-
fore the railroad superintendent or trainmaster,
and received a certificate of his competency from
such officer. A written record of said certificate
shall be kept in the office of the officer issuing it,
and be subject to inspection at any time. Acts
1890-1, p. 186.
§ 2691. (§ 2238.) Penalty.— Any railroad com-
pany violating the requirements of the preced-
ing section shall forfeit for each offense not less
than fifty dollars, and not more than five hun-
dred dollars. All forfeitures collected shall be
paid into the State treasury to the credit of the
public-school fund.
§ 2692. (§ 2239.) Suits for collection of penal-
ties.— Suits for the collection of forfeitures shall
be brought in the county where such violations
occur, and shall be prosecuted by the solicitor-
general.
§ 2693. (§ 2240.) Limiting hours of service for
trainmen. — No railroad doing business in this
State shall require or permit its employees, who
are engaged in the business of operating its
trains over its roads, to make runs of over thir-
teen hours, or make runs aggregating more than
thirteen hours in any twenty-four hours, except
when such train is detained by reason of casualty,
or other cause, from reaching its destination on
schedule time, and no trainman, after having
been on a run or runs for as much as thirteen
hours out of the twenty-four hours, shall be
required to again go on duty until after ten
hours rest, except in the case above stated. No
employee of any railroad company shall be de-
prived of his right to recover damages for per-
sonal injury by reason of the fact that he, at the
time of such injury, was making a run of more
than thirteen hours, or making a run aggregating
more than thirteen hours in twenty-four, or
had gone on duty after a thirteen hours run, or
runs aggregating thirteen hours, before ten hours
rest. Acts 1890-1, p. 186.
As to hours of labor in factories, see § 3137. As to
hours of labor by minors, see § 3141.
§ 2694. (§2241.) Penalty.— Any railroad violat-
ing any of the provisions of the preceding sec-
tion shall be subject to a forfeiture of not less
than fifty nor more than five hundred dollars; all
forfeitures collected shall be paid into the State
treasury to the credit of the school fund.
§ 2695. (§ 2242.) Suits to collect forfeitures.—
Suits for the collection of forfeitures, under tin
provisions ot the preceding sections, shall b<
brought in the county in which the principal of
fice of the railroad employing trainmei
offending is situated; or if such company shal
have no principal office in this State, then sucl
suit may be brought in any county in which sucl
company has a track and an agent.
§ 2696. Qualification of locomotive engineer.—
No railway company operating trains in this Stat'
shall have employed or allow in charge of ono
of its locomotives in this State, as a locomotiv
engineer (except such engines used in yard serj
vice), any person who shall not have had a
much as three years actual bona fide experienc
as a fireman or engineer on a railway locomotive
or who shall not have served an apprenticeship
of four years in a regular railroad machine shop
and have had in addition thereto one year bon|
fide experience as a locomotive fireman. Act;
1908, p. 49.
As to penal provisions, see § 525 P. C.
§ 2697. Electric headlights for locomotives.-
All railroad companies are required to equip an*
maintain each and every locomotive used by sue!
company to run on its main line after dark with ;|
good and sufficient headlight which shall con
sume not less than three hundred watts at th
arc, and with a reflector not less than twenty-
three inches in diameter, and to keep the sam
in good condition. The words main line, a
used herein, mean all portions of the railway linf
not used solely as yards, spurs, and sidetracks
Acts 1908, p. 50.
As to penal provision, see § 526 P. C.
This section is not violative of either the State or Fed
eral constitutions. Atlantic, etc., R. Co. v. State, 135 Ga
545, 69 S. E. 725; S. C, 8 Ga. App. 478, 69 S. E. 914; 23
U. S. 280.
The term "railroad company" employed in this sectio-
includes natural persons as well as corporations. Railroa>
Co. v. State, 135 Ga. 545, 69 S. E- 725.
§ 2698. Exceptions. — The preceding sectioi
shall not apply to tramroads, mill-roads, am
roads engaged principally in lumber or logginj
transportation in connection with mills; and sai<
section shall go into effect July 1st, 1909.
See note to § 2697.
§ 2698(1). Fire-box door, how constructe<
and operated; engines to which not applicable .-
All steam railroad companies operating stean
locomotive engines on its railroad or railroadj
in or through this State shall provide and equi]}
each and every steam locomotive engine s<
operated over its said road or roads in this Stat
with an automatic door to the fire-box of sucl
locomotive engine. Such automatic door shal
be so constructed and operated by steam, com
pressed air or electricity, as deemed best an<
most efficient by officer of such railroad. The de
vice for operating such door shall be so con
structed that it may be operated by the fireman o
said engine by means of a push button or othe
appliance located on the floor of the engine dec!
or floor of the tender at a suitable distance fronj
such floor to enable the fireman while firing sucl
engine by pressure with his feet to operate sucl
door for firing of such engine: Provided, how
ever, that the provisions of this Act shall not ap
ply to locomotive engines weighing less thai
[666]
§ 2699
FARM CROSSINGS AND CATTLE-GUARDS
§ 2701
L25,000 pounds on the driver or less than 21 inch
;ylinder, or logging or tram roads or mechani-
;ally by fired engines. Acts 1924, pp. 173, 174.
As to penalty for violation, see § 526 (1) P. C.
SECTION 4.
Farm Crossings and Cattle-Guards.
§ 2699. (§ 2243.) Railroad companies to build
ind maintain farm crossings, etc. — Every rail-
oad company shall be required to build and
naintain at its own expense good and sufficient
:attle-guards on each side of every public road or
>rivate way established, pursuant to law, and on
he dividing line of adjoining landowners, where
he railroad may cross such public roads, private
vays, or dividing lines, when necessary to pro-
ect said lands. Thirty days written notice to
>uild such cattle-guards shall be served on any
igent or officer of such company, by the owner
>f the lands to be affected by such cattle-guards;
aid notice shall be directed to said railroad cora-
>any, and contain a description of the point
vhere such cattle-guard is desired, be signed by
he said landowner or his agent or attorney, and
ittested by some officer with a seal; a certified
:opy of the same being prima facie evidence of
he contents of the original notice. Acts 1889 p.
58.
See 9 Cum. Dig. 779, 10 Enc. Dig. 760.
"Owner." — The word "owner" has no technical meaning,
ind, being nomen generalissimum, should, be construed
iberally in favor of the parties whom it is the duty and
ntention of the legislature to protect. Hardin v. Rail-
oad Co., 113 Ga. 357, 359, 38 S. E. 839.
One in possession of land under a bond for title, with a
>art of the purchase-money paid, is not the "owner" of
;uch land within the meaning of this section. Hardin v.
Railroad Co., 113 Ga. 357, 38 S. E. 839.
For a breach of duty imposed by this section the owner
if the lands only is entitled to maintain an action; a son
>f the owner can not recover. Railroad Co. v. Judge, 100
ia. 600, 28 S. E. 379.
Tenant. — The right of action given by this section et
;eq., is a statutory right, and applies only to the owner
>f the land, and not to a tenant. Railroad Co. v. Nanny,
.37 Ga. 607, 73 S. E. 1052.
Action by Landlord. — A landlord can not recover in a
iuit for damages against a railroad company for failure to
ceep in good repair a stock- guard, where the sole damage
dleged is to the crop of a tenant. Railroad Co. v. Nanny,
,37 Ga. 607, 73 S. E. 1052.
Abutting Landowner. — -This section is intended for the
)rotection of landowners, whose lands are intersected by
i railroad right of way, and not for the benefit or protec-
:ion of the owners of land abutting on a railroad right cf
vay. Railroad Co. v. Butler, 140 Ga. 717, 79 S. E. 776.
Good and Sufficient Cattle-Guard. — This section requires
i railroad company to build and maintain "good and suffi-
:ient" cattle-guards on each side of every public road
vhere the railroad crosses it. It is inaccurate to instruct
.he jury that the character of the cattle -guards should be
>uch "as first-class roads use in the construction of their
•oad;" but such inaccuracy of instruction will not require
i new trial in every case. Railroad Co. v. Plemons, 139
Sa. 67, 76 S. E. 562.
The cattle-guard required by this section, is intended to
srotect the adjacent land from the trespass of live stock
?oing over the railroad right of way; and the contrivance
nust be sufficiently extensive to embrace the entire width
if the right of way. Southern Railroad Co. v. Dawkins,
143 G~. 415. 85 S. E. 343.
Building Guard of Own Volition. — Where a railway com-
pany, has voluntarily built the cattle-guards at the alleged
private way over the plaintiff's land, it is estopped from
low saying that they were not erected at a "private way
established pursuant to law." Having built the cattle-
guards "for the convenience of the plaintiff" as shown by
the defendant's evidence, it was the duty of the railway
:ompany to build proper and effective ones and to keep
them in good repair. Savannah & Atlanta Railway v.
Hart, 27 Ga. App. 743, 110 S. E. 410.
Guard on Dividing Line of Two Owners. — Where a rail-
road company builds a cattle-guard on the dividing line
between adjacent land of different owners, it is bound to
maintain it, and this section, does not require the land-
owner to give the railroad company thirty days notice to
repair the same. Railroad Co. v. Dawkins, 143 Ga. 415, 85
S. E. 343.
Showing Necessity for Guard. — In a suit against a rail-
road company by a landowner for a failure to erect cattle-
guards as required by this section, it is incumbent upon
the plaintiff to show upon the trial that such cattle- guards
were necessary to protect his lands. Southern R. R. Co.
v. Fowler, 104 Ga. 148, 30 S. E. 243.
Necessity for Notice. — It is immaterial whether the no-
tice to build cattle-guards required by this section, was
given, where they were voluntarily built by the railroad
company without such notice, at a public road, "or private
way established pursuant to law." Savannah & Atlanta
Railway v. Hart, 27 Ga. App. 743, 110 S. E. 410.
Sufficiency of Notice. — A notice served upon a railroad
company under this section, calling upon the company to
erect a cattle-guard between two named land lots, "where
your line of road crosses said line," sufficiently describes
the point where it is desired that the cattle-guard be
erected to require a compliance therewith by the railroad
company, the notice otherwise meeting all requirements.
Fenn v. Railway Co., 116 Ga. 942, 43 S. E. 378.
Service of Notice. — This being a suit for a penalty un-
der § 2700, and it appearing from ' the evidence that the
chief clerk on whom service of the notice provided for in
§ 2243, was made was not an agent or officer of the defend-
ant, the court committed no error in awarding a nonsuit.
Smith v. Railway Co., 132 Ga. 57, 63 S. E. 801.
Sufficiency of Petition. — To recover the penalty for fail-
ure of a railroad company to build and maintain good and
sufficient cattle-guards as provided for in this section and
§ 2700, the plaintiff's petition must allege such facts as
bring it within the provisions of this law. Gill v. Atlantic,
etc., Railway Co., 24 Ga. App. 780, 102 S. E. 457.
§ 2700. (§ 2244.) Liability for failure.— If the
railroad company shall fail to build such cattle-
guards within thirty days, then the railroad com-
pany shall be liable to the owner of the land for
all damages resulting from the failure so to
build; and for each day elapsing after the thirty
days have expired, until the said cattle-guard is
built, in the sum of twenty-five dollars, to be
recovered by said landowners in any court hav-
ing jurisdiction over the same.
See notes to § 2699.
§ 2701. (§ 2245.) Additional cattle-guards.—
Whenever the owner of any lands over which
any railroad company may have acquired the
right of way may desire additional cattle-guards
other than those provided for in the preceding
section, or any farm crossing on his land, it shall
be the duty of the railroad company, upon writ-
ten notice as provided in the preceding section,
within ten days after the service of the said no-
tice, to submit to the landowners, or his agent, if
to be found, a written estimate of the cost of
such cattle-guard or farm crossing; whereupon
the said landowner, or his agent, if satisfied with
the same, shall pa}- to the company the sum so
estimated, when the company shall at once pro-
ceed to build such cattle-guards or farm cross-
ings; the cost of the farm crossings to cover only
the road-bed of the said railroad. In the event
the landowner and the company can not agree
as to the correctness of the said estimate, then
the same shall be determined in the same man-
ner as damages for right of way. The award
may be had at the instance of the landowner, or
his agent, as well as at the instance of the railroad
company. In the event the railroad company
shall fail to comply with the provisions of this
[667 ]
§ 2702
RAILROADS AS COMMON CARRIERS
§ 2712
section, or to keep in good repair the guards or
crossings, it shall be liable for all damages re-
sulting to such landowner by the failure to build
or keep in good repair such cattle-guards or
farm crossings, to be recovered in any court hav-
ing jurisdiction thereof.
See notes to § 2699.
§ 2702. (§ 2246.) Does not affect existing laws.
— Nothing in the two preceding sections shall be
construed in any way to change the liability of
railroad companies for damages to live stock, or
to prevent landowners from joining their fences
to stock-gaps, or of free access from and to the
said farm crossing. This and the two preceding
sections shall not apply to any roads, ways, or
crossings within the limits of any incorporated
town or city.
This section does not require landowners to extend their
fences across the entire railroad right of way, in order to
connect with the cattle -guard on the track of the railroad.
Railroad Co. v. Dawkins, 143 Ga. 415, 85 S. E. 343.
SECTION 5.
Injuries to Stock.
§ 2703. (§ 2247.) Record of stock killed.—
Every railroad company shall require of every
engine-runner employed by them to render daily,
to a proper officer, an account of any stock or
other property injured, which returns shall be
kept recorded in a book, and open for the inspec-
tion of all persons. For the failure to keep such
a record, and to require such returns, the com-
pany shall be liable for ten per cent, extra dam-
ages to every person whose propert}^ is injured
by them.
For full treatment of injuries to animals by railroads,
see 7 Cum. Dig. 367 et seq. ; 7 Enc. Dig. 509 et seq.
§ 2704. (§ 2248.) Report of overseers, etc. — All
overseers or track-menders on the different rail-
roads in this State shall file weekly, with the
station-agent nearest where the stock was killed,
within their respective sections, if any; if not, then
with the nearest agent where said stock was killed,
a list of the different marks and brands of all stock
killed upon their respective sections the preced-
ing week, so as to be compelled to identify, in
their weekly reports, on what part of their sec-
tion such stock was, or may have been killed, by
some designated places on said section. Acts
1863-4, pp. 65, 66; 1901, p. 37.
The word "marks" in this section, refers only to artificial
marks and brands placed upon stock. Churchill v. Ga.
R. Co., 108 Ga. 265, 33 S. E. 972.
Evidence of Report — It not appearing that the report of
the killing of the cow of the plaintiff was made by an
agent of the defendant company with authority to bind the
company, the justice did not commit error in refusing to
allow the auditor of the company to testify that a report
was made of the killing. Young v. Railroad Co., 1 Ga.
App. 317, 57 S. E. 921.
§ 2705. (§ 2249.) Report to be posted, where.—
Said list shall be placed in a conspicuous place in
the office of the said station-agent, for the in-
spection of all persons concerned. Acts 1863-4,
pp. 65, 66.
§ 2706. (§ 2250.) Overseer, when liable. — Upoi:
failure of any overseer or track-mender to com-
ply with the provisions of section 2704, he shall
be liable to pay the owners of said stock double
the value of all stock killed on his particular sec-
tion, and not reported; the same to be recovered
in the manner as now provided by law for the
collection of other claims in this State. Acts
1863-4, pp. 65, 66; 1898, p. 49.
§ 2707. (§ 2251.) Railroad company liable,
when. — In case the overseer or track-mender is
insolvent, then and in that case the railroad com-
pany in whose employ they are, shall be liable
to pay according to the provisions of section
2706: Provided, that in all cases where the pen-
alty shall be collected from the overseer or
track-mender, the liability of the railroad com-
pany in whose employment they may be shall
thenceforth cease. Acts -1863-4, pp. 65, 66.
§ 2708. (§ 2252.) Damages to live stock, or
other property.— The several railroad compa-
nies in the State, including the Western and At-
lantic Railroad, shall be held liable, under the
rules hereinafter prescribed, for any damage
done to any live stock or other property (except
for the assessment of damages for right of way),
to the owner or owners thereof, by the running
of cars, locomotives, or other machinery uponj
their roads respectively, and for damages done byj
any person or persons in the employ or service
of railroad companies, and for damages done by
any such railroad company by any means what-
ever. Act 1840, Cobb, 396; Act 1843, Cobb, 396;
Act 1847, Cobb, 397; Act 1850, Cobb, 398; Acts
1853-4, p. 93(e); 1863-4, p. 65.
See § 2780 and notes thereto.
§ 2709. (§ 2261.) Owner may kill live stock
rendered useless. — When any live stock is so in
jured by the cars of any railroad company as to
become valueless for ordinary uses, it shall be
lawful for the owner of said live stock to procure
the attendance of two disinterested persons tc
examine said stock; and if said persons deter-
mine the injury to be of such character as to reri
der the stock valueless for the purpose of which
said owner kept said stock, then the owner may
put said stock to death, or procure it to be done
without impairing in any way his right to re-
cover damages from the company inflicting the
injury upon his said stock. Acts 1882-3, p. 146
As to how abandoned and diseased animals dealt with,
see § 2014.
§ 2710. (§ 2262.) Railroad may kill stock.—
Nothing in the preceding section contained shall
be construed to prevent the authorities of any
railroad company inflicting serious injury of the
character named in said section from putting
such live stock to death.
SECTION 6.
Railroads as Common Carriers, and Herein of
Other Carriers.
§ 2711. (§ 2263.) Definition. — Any person un
dertaking to transport goods to another place, for a
compensation, is a carrier, and as such is bound
to ordinary diligence.
See notes to § 2712. See also 3 Cum. Dig. 151; 2 Enc
Dig. 701. As to definition of bailment, see § 3467. As to
carrier of deposits, see § 3497.
§ 2712. (§ 2264.) Common carrier. — One whc
pursues the business constantly or continuously
[668]
2712
RAILROADS AS COMMON CARRIERS
§ 2712
or any period of time, or any distance of trans-
ortation, is a common carrier, and as such is
ound to use extraordinary diligence. In cases
1 loss the presumption of law is against him,
nd no excuse avails him unless it was occa-
ioned by the act of God or the public enemies
f the State.
I. Who Are Common Carriers.
II. Liability.
II. Defenses.
Cross References.
See § 2585 (7). For full treatment of carriers, see 3 Cum.
)ig. 143 et seq.; 2 Enc. Dig. 701 et seq. As to definition
1 bailment, see § 3467. As to burden of proof, see § 5746. As
o effect of notice to limit liability, see § 2726. As to dam-
ges by running of cars, see § 2780. As to definition of ex-
inordinary diligence, see § 3472. As to carriers of pas-
engers, see § 2714 and note thereto.
I. WHO ARE COMMON CARRIERS.
See 3 Cum. Dig. 152, 2 Enc. Dig. 702.
Carrying Goods as Common Employment. — To make a
>erson a common carrier, he must exercise it as a com-
non employment; he must undertake to carry goods for
)ersons generally, and he must hold himself out as ready
o engage in the transportation of goods for hire as a
)usiness, and not as' a casual occupation pro hac vice. Fish
r. Chapman, 2 Ga. 349.
Compensation. — "To make one a common-carrier, _ he
nust be entitled, either by the bargain or by implication,
:o toll or hire." Self v. Dunn, 42 Ga. 529, 531.
Length of Road.— This section does not indicate any
ength of road which the company must have in order to
)e a common carrier. Bridwell v. Terminal Co., 127 Ga.
520, 523, 56 S. E. 624.
Ferries.— One who keeps a ferry for his own use and for
;he convenience of customers to his mill, but who charges
10 ferriage, is not a common-carrier within this section,
ind is only bound to ordinary diligence. Self v. Dunn, 42
Ga. 529.
Single Contract of Transportation. — One who contracts
to transport goods from one point to another and deliver
them in good order and condition, unavoidable accidents
anly excepted, is not a common carrier, but is responsible
3n his contract as one. Fish v. Chapman, 2 Ga. 349.
Public ferrymen being common carriers, no allegation
of negligence was necessary in a suit brought to recover
damages for the loss of property accepted for shipment. L-
& N. Railroad v. Warfield, 129 Ga. 473, 59 S. E. 234. Deen
v. Wheeler, 7 Ga. App. 507, 67 S. E. 212.
An express company which pursues continuously, for any
period of time, the business of transporting goods, pack-
ages, etc., is a common carrier under this section. Southern
Express Co. v. Newby, 36 Ga. 635.
Chartered Car. — Under this section there is no excep-
tion made in the case of a chartered car. Railroad &
Banking Co. v. Anderson, 58 Ga. 394, 396.
Cited in Helmly v. Savannah Office Bldg. Co., 13 Ga.
498, 500, 79 S. E. 364.
II. LIABILITY.
See 3 Cum. Dig. 163, 2 Enc. Dig. 705 and references there
given.
The word "loss," as used in this section, includes injury
or damage to the goods. Central Railroad Co. v. Has-
selkus, 91 Ga. 382, 385, 17 S. E. 838.
The rule of "extraordinary" diligence imposed upon com-
mon carriers by this section, requires the exercise of that
degree of diligence to avoid needlessly exposing goods to
injury or destruction by an unforeseen act of God, such as
an extraordinary flood or freshet, and also to protect and
preserve the goods after the peril has become apparent.
Railroad Co. v. White, 88 Ga. 805, 15 S. E. 802.
Extraordinary diligence is defined as "that extreme care
and caution which very prudent and thoughtful persons
use" under like circumstances. (See § 3472). In determin-
ing what very prudent and thoughtful persons would do
under certain circumstances, the situation and surround-
ing facts, including the existence of an emergency, if there
was one, are to be considered by the jury. Atlantic, etc.,
Railroad Co. v. Pharmacy Co., 135 Ga. 113, 68 S. E. 1039;
Railroad Co. v. White Co., 88 Ga. 805, 15 S. E. 802;
A carrier may be liable for the loss of freight, in spite
of the most extraordinary diligence. Coweta County v.
Railway Co., 4 Ga. App. 94, 60 S. E. 1018.
Distinguished from Ordinary Carrier. — A carrier is
bound to exercise ordinary diligence under § 2711 while a
common carrier is bound to use extraordinary diligence un-
der this section. Railroad Co. v. Waldrip, 18 Ga. App. 263,
89 S. E. 346.
Partial Loss. — The rule under this section which places
upon a common carrier the burden of showing the exer-
cise of extraordinary diligence in the transportation of
goods applies not only in cases of total loss, but also in
case of partial loss by injury or damage to the goods from
delay in transportation or delivery, and requires that
extraordinary diligence shall be shown as to the time of
completing this service. Southern Cotton-Oil Co. v. Louis-
ville, etc., Railroad Co., 15 Ga. App. 751, 84 S. E. 198.
Carrying Live Stock. — While a common carrier of goods
who also transports live stock is as to the latter property
a common carrier, certain exceptions have grown up in
his favor, exempting- him from liability for loss or injury
caused by the nature and propensities of the animals.
Cooper v. Railroad Co., 110 Ga. 659, 36 S. E. 240; Railway
Co. v. Hall, 124 Ga. 322, 52 S. E. 679.
In the trial of an action brought against a carrier of live
stock, to recover damages for loss of, or injury to, stock
which he had undertaken to transport, after proof of loss
or injury there is a presumption under this section that
he was at fault, and the burden rests upon him of show-
ing that he is not liable, by reason of the happening of
some cause which the law recognizes as an excuse. Cooper
v. Railroad Co., 110 Ga. 659, 36 S. E. 240.
Presumptions and Onus. — In case of loss the presumption
is against the carrier under this section. The burden,
however, is on the plaintiff to show the loss; but for the
purposes of a prima facie case this may be done by show-
ing such circumstances as would create the inference
against the defendant that the goods are lost; as, for in-
stance, they were bailed to the carrier a sufficient length
of time to be transported to destination and have not ar-
rived there. Southern Railway Co. v. Montag, 1 Ga. App.
649, 650, 57 S. E. 933.
What Shipper Must Show. — A shipper seeking to re-
cover damages of a common carrier for an injury to the
thing shipped, must show some injury which can not be
the result of its inherent nature or defects, or some care-
lessness or negligence on the part of the carrier likely to
cause the injury, before the burden is cast on the carrier
to show that he is not in fault. Hussey v. Saragossa, 12
Fed. Cas. 1066.
III. DEFENSES.
See § 2713, and notes thereto.
Generally. — "When a carrier fails to deliver the goods
intrusted to his care, or delivers them in a damaged con-
dition, no excuse avails him, unless it was occasioned by
the act of God, the public enemy, an inherent vice or
natural deterioration of the object carried, or, in case of
live stock, the viciousness of the animals, or that he is
excused by special contract made with the shipper, by
statute, or by negligence of the shipper." Hines v. Vann,
26 Ga. App. 704, 106 S. E. 921.
Act of God — Distinguished from Unavoidable Accident.
— "There is, doubtless, a distinction between an act of
God and an unavoidable accident. The former covers only
natural accidents, such as lightning, earthquakes, tempests,
and the like, and not accidents arising from the negligence
or act of man." Telephone Co. v. Potts, 24 Ga. App. 178,
180, 100 S. E. 236. But see, Fish v. Chapman, 2 Ga. 615.
Same — Negligence of Carrier. — See § 2713 and notes. A
common carrier who, in violation of his general and uni-
form usage in dealing with consignees, fails to give no.
tice of the arrival of goods, or who wrongfully detains
them after they have been applied for by a consignee ready
to receive them, is guilty of such negligence in exposing
the goods to loss or damage by a subsequent freshet occur-
ring whilst they are in store in his depot, and before giv-
ing any of their arrival, as to deprive him of excuse by
the act of God, so far as these goods are concerned. Rail-
road Co. v. White, 88 Ga. 805, 15 S. E. 802.
Same — Late Arrival of Goods Preventing Notice. — As to
goods which arrived too late to admit of giving the usual
notice to consignees before a flood occurred, the carrier
was bound to the exercise of extraordinary diligence in
protecting them from damage by the flood while they were
in his cars or his warehouse. But if they were damaged in
spite of such diligence, he would be excused. Railroad Co.
v. White, 88 Ga. 805, 15 S. E. 802.
Injury from inherent qualities is somewhat in the na-
ture of damages resulting from the act of God; and in the
more recent development of the rules as to the liability ot
carriers it has been held that they are not liable for loss
or damage due to the intrinsic qualities of the goods car-
ried. Ohlen v. A. & W. P. R. Co., 2 Ga. App. 323, 58 S.
E- 511. See also Forrester v. Georgia Railroad, etc., Co.,
92 Ga. 699, 704, 19 S. E. 811; Susong v. Florida Central &
[669 ]
§ 2713
RAILROADS AS COMMON CARRIERS
§ 2714
Peninsular Railroad Co., 115 Ga. 361, 363, 41 S. E. 566; Oil
Co. v. Railway Co., 16 Ga. App. 750, 753, 86 S. E. 57.
When goods, though perishable or liable to rapidly de-
teriorate from internal causes, are damaged while in the
hands of the carrier, the burden of proof is upon him to
show either that he was free from negligence, or that not-
withstanding his negligence the damage occurred without
his fault; that is, that his negligence did not contribute to
the damage. Central Railroad Co. v. Hasselkus, 91 Ga.
382, 17 S. E. 838. See also, So. Express Co. v. Bailey, 7
Ga. App. 331, 66 S. E. 960.
Destruction by Public Enemy— Burden of Proof.— As the
presumption of the law is against the carrier in case of
loss under this section, it is incumbent on him to prove,
by clear and satisfactory evidence, that the goods were
destroyed by the public enemies of the State; whilst in
his possession, in order to exonerate him from liability
therefor. Winkle & Co. v. Railroad Co., 38 Ga. 32.
Contributory Negligence of Shipper. — The presumption
of liability raised by this section may be rebutted, if_ it
appears that the injury was caused by the plaintiff him-
self, whether the act which caused the injury be due to
negligence or design. In other words, the provisions of
this section have no reference to a case where the loss is
attributable, either in whole or in part, to the act of the
shipper himself. Coweta County v. Railway Co., 4 Ga.
App. 94, 60 S. E. 1018, So. Ry. Co. v. Morrison, 105 Ga. 543
546, 31 S. E. 564.
Goods Seized under Legal Process.— If goods are seized
and taken from the carrier's possession under legal proc-
ess, its liability ceases. Savannah R. Co. v. Wilcox, 48
Ga. 432.
§ 2713. (§ 2265.) Bailee must show no concur-
ring negligence. — In order for a carrier or other
bailee to avail himself of the act of God or ex-
ception under the contract as an excuse, he must
establish not only that the act of God or ex-
cepted fact ultimately occasioned the loss, but
that his own negligence did not contribute
thereto.
Cross References.— See 2 Cum. Dig. 529; 2 Enc. Dig. 210;
3 Cum. Dig. 324, 348; 2 Enc. Dig. 826, 843. See also notes
to § 2712. As to effect of notice to limit liability, see fc
2726. As to burden of proof in cases of bailment, see §
3469.
Editor's Note.— This section is a codification of the rule
as laid down in headnote 1 of Richmond, etc., R. Co. v.
White, 88 Ga. 805, 15 S. E. 802. See notes of this case
under § 2712.
Where goods are shipped "released" the burden under
this section is upon the carrier to show that the loss was
within the exemption and not occasioned by his negligence.
Georgia Southern, etc., R. Co. v. Johnson, etc., Co., 121 Ga.
231, 48 S. E. 807.
Peril from Fire. — The diligence required of a common
carrier in regard to preserving goods in the course of
transportation by him from loss by fire is not limited to
avoiding setting fire to such goods, but extends also to
protecting and preserving them from destruction after a
peril from fire has become apparent. Atlanta, etc., R. Cc.
v. Pharmacy Co., 135 Ga. 113, 68 S. E. 1039.
Loss Caused by Fault of Shipper. — If a common carrier
relies upon the defense that the loss was occasioned by the
fault of the shipper or his agent, he must, as in the case
where he relies upon the loss having occurred by the act
of God or the public enemy, bring himself within the de-
fense by negativing contributing fault on his own part.
Atlanta, etc., R. Co. v. Pharmacy Co., 135 Ga. 113, 68 S.
E. 1039.
Delay Caused by Act of God. — Under this section where
a carrier is sued for loss or destruction of goods in transit,
resulting from unreasonable delay in delivery, the defense
that the delay was caused by an unprecedented flood or
some other act of God will not avail where it appears that
the delay was attributable not merely to this cause, but
largely to the negligence of the carrier. Lamb v. Mitchell
& Co., 15 Ga. App. 759, 84 S. E. 213.
Goods Destroyed by Inherent Qualities. — "When the
goods composing a shipment are of such intrinsic character
as to be self-destructive or incapable of safe transporta-
tion, the presumption that damage which occurred in the
course of the transportation was due to the negligence of
the carrier is rebutted by showing that the damage was
due to the inherent qualities of the shipment." Oil Co. v.
Railway Co., 16 Ga. App. 750. 753, 86 S. E. 57.
Condition of Car. — Evidence as to the condition of a car
is admissible, enabling the jury to determine whether the
car was or was not a safe car, and whether the injury (if
any) was caused by the act of God, or by the negligence
of the carrier. Railway Co. v. Barfield, 1 Ga. App. 203, 58
S. E- 236.
Stated in Central of Ga. Ry. Co. v. Hall, 124 Ga. 322, 52
S. E. 679.
Cited in So. Ry. Co. v. Montag, 1 Ga. App. 649, 57 S. E*
933; Atlanta & W. P. R. Co. v. Broome, 3 Ga. App. 641^
60 S. E. 355; So. Ry. Co. v. Frank & Co., 5 Ga. App. 574,
63 S. E. 656; Payne v. West Point, etc., Co., 151 Ga. 46,
105 S. E- 608.
§ 2714. (§ 2266.) Carrier of passengers. — A
carrier of passengers is bound also to extraordi-
nary diligence on behalf of himself and his
agents to protect the lives and persons of his
passengers. But he is not liable for injuries to
the person, after having used such diligence.
Cross References. — For full treatment of carriers of pas-
sengers, see 3 Cum. Dig. 167; 2 Enc. Dig. 707. See also,
3 Cum. Dig. 187; 2 Enc. Dig. 723. As to effect of notice
to limit liability, see § 2726. As to provisions as to com-
mon carriers generally, see § 2712. As to liability of rail-
road companies to employees, see § 2751. . As to definition
of extraordinary diligence, see § 3472.
Distinction between Common and Passenger Carrier. —
The use of the word "also" in this section, following the
definition of a common carrier, and declaring that com-
mon carriers shall be bound to extraordinary diligence, is
clearly indicative of the legal distinctions which existed
between common carriers and passenger carriers. Georgia
Railway Co. v. Lippman, 110 Ga. 665, 36 S. E. 202.
Street Railways. — The rule of this section applies to
street railway carriers. City & Suburban Railway v. Find-
ley, 76 Ga. 311, 317. See also, Holly v. The Atlanta Street
Railroad, 61 Ga. 215.
In the conduct of operating electric street cars as a
common carrier it was bound to use extraordinary diligence
under this section. Electric Co. v. Wheeler, 128 Ga. 550,
553, 58 S. E. 38.
Elevator as Carrier. — The owner of an office building,
equipped with an elevator which is operated for conveying
his tenants and their employees and patrons to and from
the various floors, is not a common carrier in the sense
that he is bound to serve all the public; yet his duty as
to protecting passengers in the elevator is the same un-
der this section as that chargeable to carriers of passengers
by other means. Grant v. Allen, 141 Ga. 106, 108, 80 S.
E. 279.
One who carries passengers on an elevator from floor
to floor of a large office building, or of a hotel, constantly
and continuously, is a carrier of passengers. No rational
distinction in principle can be based on the fact that the
passengers are carried vertically rather than horizontally;
and the distance the passengers are carried is not material.
Helmly v. Savannah Office Building Co., 13 Ga. App. 498,
500, 79 S. E. 364.
Extraordinary Diligence. — The "extraordinary" diligence
due by railroad companies to passengers is "that extreme
care and caution which very prudent and thoughtful per-
sons" exercise under like circumstances. See § 3472. East
Tenn., etc., Railway Co. v. Miller, 95 Ga. 738, 22 S. E- 660..
If a duty of protecting a passenger on board of a railway
train arises, either in the ordinary course of business or
under special circumstances, the measure of diligence re-
quired to be exercised by the carrier is extraordinary care
under this section. Georgia Railway Co. v. Madden, 135
Ga. 205, 69 S. E. 165.
"Our section on the subject of extraordinary diligence as
applied to railroads is merely declaratory and explanatory
of the common law. The Civil Code, § 3472, defines extra-
ordinary diligence to be 'that extreme care and caution
which very prudent and thoughtful persons use in securing
and preserving their own property;' and while this rule ap-
plies particularly to diligence in the preservation of prop-
erty, it has always been recognized as tending with equal
force to diligence to prevent injury to the person. Under
the uniform decisions of this court, the degree of care re-
quired of a carrier of passengers is somewhere between the
comparative and superlative. A distinction is drawn be-
tween 'very great' and 'greatest.' Thus, in East Tenn. R.
Co. v. Miller, 95 Ga. 738, it was held error to charge that
a railroad company is required to observe the utmost care
and diligence for the safe carriage of passengers. See also
Florida R. Co. v. Lucas, 110 Ga. 123. It follows that the
rule of diligence laid down by the trial judge, viz., 'the
highest degree of care and diligence known to skilled per-
[ 670]
2714
RAILROADS AS COMMON CARRIERS
§ 2714
ms engaged in that business,' was far too sweeping, and
aced upon the defendant company a burden greater than
lat imposed by the law." Alabama Midland Ry. Co. v.
uilford, 119 Ga. 523, 525, 46 S. E. 655.
Same— Requirements Vary. — "What extraordinary care
:quires depends upon circumstances. One circumstance
ir consideration in dealing with a passenger is the condi
on of such passenger, known to the carrier or its agents,
• so apparent as to charge them with knowledge." Geor-
ia Railway Co. v. Madden, 135 Ga. 205, 69 S. E. 165.
What will amount to extraordinary diligence varies with
ie character of the train. Georgia Railway Co. v. Lipp-
lan, 110 Ga. 665, 36 S. E. 202.
Same— On Part of Agents.— Under this section a carrier
bound not only for extraordinary diligence on his part
r "behalf," but also on the part of his agents, for the
rotection of his passengers. Mason v. Nashville, etc.,
.airway Co., 135 Ga. 741, 70 S. E. 225.
Extraordinary degree of care is imposed upon the ser-
ants of the railway company to prevent and protect pas-
:ngers from all injuries, and the railway company is ^ re-
Donsible for any injury that the servant could have avoided
y the exercise of such diligence. Bennett v. Georgia Rail-
ay Co., 6 Ga. App. 185, 187, 64 S. E. 700.
Extraordinary diligence is the measure of care which
anductors must exercise toward passengers under this
;ction. Georgia Railroad v. Homer, 73 Ga. 251.
Same— Same— Slight Neglect. — Under this section the
Dmpany will be liable to passengers for injuries to them
nless extraordinary care and diligence be used, and slight
eglect on the part of the agents and servants of the
Dmpany will be sufficient evidence to fix its liability,
rawford v. Georgia Railroad, 62 Ga. 567.
Same — Liability for Failure to Use. — "Under this sec-
bn there certainly can be no doubt that if a railroad com-
any fails 'to exercise extraordinary diligence for the safety
f its passengers, it will be liable for injuries occasioned
ecause of such failure to a passenger who himself exer-
ised the proper care for his own protection." East Tenn.,
tc, Railway Co: v. Miller, 95 Ga. 738, 22 S. E. 660.
Waiver or Release of Duty. — The duty imposed by this
ection can not be waived or released even by an express
ontract. Being one in which the public has an interest,
ublic policy forbids such a waiver or release. Georgia
Lailway Co. v. Lippman, 110 Ga. 665, 36 S. E. 202; Hearr.
. Ga. Ry. Co., 22 Ga. App. 1, 3, 95 S. E. 368.
An express contract entered into by the carrier and the
assenger, under the terms of which the carrier is re-
used from all liability to the passenger for personal in-
iiries received while a passenger on such freight-train, is
a effect a contract by which the carrier undertakes to re-
ieve itself from the consequences of the negligence of it-
elf and servants, and can not be enforced. Georgia Rail-
way Co. v. Lippman, 110 Ga. 665, 36 S. E. 202.
Presumption of Negligence. — Upon proof of injury to a
lassenger of a railroad company by the running of its
ocomotive, cars, or other machinery, or by any person in
ts employment and service, the law raises a presumption
hat the injury was caused by the negligence of the cora-
>any. Douthitt v. Louisville, etc., R. Co., 136 Ga. 351, 71
5. E- 470. See also, Central R. v. Freeman, 75 Ga. 331.
Same — Rebuttal. — In a suit by a passenger against a
itreet-railway company on account of a personal injury,
ifter a presumption of negligence arises from the evidence,
n order to rebut it the defendant must make it appear from
.he evidence that its agents or servants exercised extra -
>rdinary care and diligence in connection with those things
n which it was charged that its negligence consisted.
Georgia Railway & Electric Co. v. Gilleland, 133 Ga. 621,
i6 S. E. 944; Brunswick R. Co. v. Gale, 56 Ga. 322, 324.
Where an injury to a passenger is proved to have been
:aused by a company's negligence, the presumption against
:he company will not be rebutted by the company show-
ing that it exercised only ordinary care and diligence; as
"ailroad companies are bound to use extraordinary care and
diligence for the safety of passengers by reason of this
section. Douthitt v. Louisville, etc., R. Co., 136 Ga. 351.
■ S. E. 470; East Tenn., etc., Ry. Co. v. Miller, 995 Ga. 738,
22 S. E. 660.
Passenger Boarding Train and Paying Fare. — After a
person becomes a passenger by boarding a train and pay-
ing cash fare, the carrier is bound to extraordinary dili-
gence by this section. Williamson v. Georgia Railway
Co., 127 Ga. 125, 56 S. E. 119.
Injury through Fault of Passenger. — No person shall re-
cover from a railroad company for an injury to himself or
his property, where the same is done by his consent, or is
caused by his own negligence. If the plaintiff and the
agents of the company are both at fault, the former may
[6
recover, but the damages shall be diminished by the jury
in proportion to the amount of default attributable to him.
Railroad v. Brinson, 70 Ga. 207, 208.
Passenger Who Has Not Entered Cars. — One who has a
railroad ticket and is present to take the train at the
ordinary point of departure, is a passenger, though he has
not entered the cars. In duties toward him, directly in-
volving his safety, the company is bound to extraordinary
diligence, and in those touching his convenience or ac-
commodation, to ordinary diligence. Railroad & Banking
Co. v. Perry, 58 Ga. 461.
Leaving Passenger.— The rule of extraordinary diligence
of this section applies to the receiving, keeping, carrying,
and discharging of passengers. It does not apply to pre-
cautions adopted to prevent them from being left, if they
are unnecessarily late in taking their places after full and
fair opportunity for doing so safely has been afforded.
Railroad & Banking Co. v. Perry, 58 Ga. 461.
Receiving Passenger on Freight Trains. — A carrier who
receives a passenger on one of its freight trains is bound
by the same standard of diligence as if the passenger were
being transported on a regular passenger-train. Georgia
Railway Co. v. Lippman, 110 Ga. 665, 36 S. E. 202.
A passenger who voluntarily seeks to be transported on
a freight-train takes the risk of the usual and necessarv
jolts and jars which occur in the operation of such train,
but the carrier is not relieved from the use of extraordi-
nary diligence to the passenger to prevent unusual and
unnecessary jolts and jars. Georgia Railway Co. v. Lipp-
man, 110 Ga. 665, 36 S. E. 202.
Coach Placed on Siding. — The duty imposed by this sec-
tion remains applicable where in the course of the trans-
portation the coach in which the passenger is being con-
veyed is detached from the train and placed for the night
upon the railway's siding. Georgia Railway Co. v. Deas,
22 Ga. App. 425, 96 S. E. 267.
Servant Slamming Door. — In a suit to recover damages
for personal injuries received by a passenger from the
sudden slamming of a car door by a servant of a railway
company, in order to show a cause of action it is not nec-
essary to allege that the servant had actual knowledge of
the dangerous position of the passenger at the time the
injuries were, received, or that the act of the servant was
intentional. Negligent ignorance on the part of the serv-
ant, in connection with the act which caused the injury,
may be sufficient to warrant a recovery under this section.
Bennett v. Georgia Railway Co., 6 Ga. App. 185, 64 S. E.
700.
Injury or Humiliation Caused by Third Persons. — A rail-
road company is bound to use extraordinary care and dili-
gence to protect its passengers, while in transit, from vio-
lence, injury, or outrage and humiliation by third per-
sons. This protection must be afforded by the conductor
to the extent of all the power with which he is clothed by
the company or by the law, and his failure to afford it,
when he has knowledge that there is occasion for his in
terference, will subject the company to liability in damages.
Hillman v. Railroad & Banking Co., 126 Ga. 814, 56 S.
E. 68.
When passengers are injured by riotous fighting among
other passengers, it is for the jury to say, under all the
facts, whether the company was negligent in not providing
la suitable conductor to preserve order, or whether the
person in charge of the car as driver was negligent in the
preservation of order thereof, and the safe carriage of
the passengers to the place of destination. Holly v. Atlanta
Street Railroad, 61 Ga. 215.
Passenger Becoming 111 in Transit. — If a passenger on
a railway train becomes ill in transit, and this is known
to the servants of the carrier in charge of such train, or
is so apparent that they are charged with knowledge of it,
it is their duty to give him such care and protection be-
yond that demanded under ordinary circumstances as is
reasonably practicable with the facilities at hand, and
consistent with the safe and proper conduct of the business
and the safety and comfort of the other passengers. Geor-
gia Railway Co. v. Madden, 135 Ga. 205, 69 S. E. 165.
Leaving Train before Destination. — Ordinarily where a
passenger obtains a ticket entitling him to transportation
over a railway between two designated points, no duty
exists on the part of the carrier to afford him opportuni-
ties to leave the train before reaching his destination, or
to assist him in so doing. Georgia Railwav Co. v. Mad-
den, 135 Ga. 205, 69 S. E. 165.
Helping Passenger Alight. — As a general rule, it is not
the duty of the employees of a railway company in charge
of a passenger-train to physically assist passengers in
alighting therefrom, but to furnish reasonable opportunity
and facilities for leaving the train; but the duty of render-
n]
§ 2715
RAILROADS AS COMMON CARRIERS
§ 272S
ing assistance may arise from special circumstances.
Georgia Railway Co. v. Madden, 135 Ga. 205, 69 S. E- 165.
Petition.— Where a petition under this section alleged in
general terms that at the time of the homicide the person
killed "was a passenger" on a passenger-train of the de-
fendant, but did not allege any antecedent facts sufficient
to show the status of such person as a passenger, the
petition was subject to special demurrer on the ground
that the petition did not contain allegations of such char-
acter. Payne v. Allen, 155 Ga. 54, 116 S. E. 640.
Applied in Stiles v. Atlanta, etc., R. Co., 65 Ga. 370;
Central, etc., R. Co. v. Johnston, 106 Ga. 130, 32 S. E- 78.
Cited in Savannah Electric Co. v. Bennett, 130 Ga. 597,
61 S. E- 529; Turner v. City R. Co., 134 Ga. 869, 68 S. E-
735.
§ 2715. (§ 2267.) Who a passenger.— A carrier
may demand prepayment of fair; but if, by its
permission, persons enter its vehicle with the
intention of being carried, an obligation to pay
fare is implied on the part of the passenger, and
the reciprocal liability of the carrier arises.
See 3 Cum. Dig. 169; 2 Enc. Dig. 708. As to what pas-
sengers may be refused, see § 2750.
Editor's Note. — This section is a codification of the rule
as stated in Chattanooga R. Co. v. Huggins, 89 Ga. 494,
15 S. E. 848. A quotation similar to the rule of this sec-
tion, from Hutch. Carr., § 565 is cited by that case as au-
thority. And it is suggested further that the relation of
passenger may thus arise although the conveyance has not
started on its journey. See 2 Shearm. & Redf. Neg. §§
488, 490.
Section Not Exhaustive. — This section affords one in-
stance of a definition of passenger, but is not exhaustive.
There is no statute in this State giving a complete and
exhaustive definition of the term "passenger." The re-
lation arises out of contract express or implied, and must
depend upon the facts of each case, which are necessarily
variable. Payne v. Allen, 155 Ga. 54, 55, 116 S. E. 640.
Person on Shuttle Train. — Proof that a railroad com-
pany ran a shuttle train from a city to its railroad shops
near by, for the purpose of carrying its employees to and
from their work, and that occasionally other persons
boarded the train and were carried either to or from the
shops without the payment of fare, does not entitle a per-
son who was upon the train and was not an employee
to recover for injuries occasioned by a sudden jerk of the
train, when there was no payment of fare exacted or
knowledge of the presence of the person. Carter v. Sea-
board Air-Line Railway, 21 Ga. App. 251, 94 S. E. 280.
Cited in Payne v. Allen, 28 Ga. App. 8, 110 S. E. 345;
Atlanta Terminal Co. v. Lowndes, 30 Ga. App. 115, 117 S.
E. 111.
§ 2716. (§ 2268.) Railroads must accommodate
all alike, when. — The different railroads in this
State, acting as public carriers, are required to
furnish equal accommodations to all, without
regards to race, color, or previous condition.
Any railroad in this State violating the condi-
tions of this section, by any of its employees,
may be sued in the superior court of the county
where the offense is committed, and any person
so wronged may recover such sum as the discre-
tion of the court thinks right and proper in the
premises, not to exceed ten thousand dollars.
Acts 1870, pp. 427, '428.
See § 2717. As to penal provision, see § 533 P. C.
Cited in Gainesville v. Jackson, 1 Ga. App. 632, 57 S. E-
1007. Scott v. Ga. Ry., etc., Co., 23 Ga. App. 106.
§ 2717. (§ 2269.) Equal accommodations in sep-
arate cars. — All railroads doing business in this
State shall furnish equal accommodations, in
separate cars, or compartments of cars, for white
and colored passengers; but this section shall
not apply to sleeping-cars. Acts 1890-1, p. 157.
As to forbidding unjust discriminations, see § 2629. As
to penal provision, see § 534 P. C.
"This section manifestly does not apply to street cars."'
Electric Co. v. Lowe, 27 Ga. App. 350, 353, 108 S. E. 313.
Cited in Central Ry. Co. v. Fleming, 13 Ga. App. 464, 79
S. E. 369.
§ 2718. (§ 2270.) Must assign passengers tc
their cars. — All conductors or other employees
in charge of such cars shall be required to assign
all passengers to their respective cars, or com-
partments of cars, provided by the said corri^i
panies under the provisions of the preceding sec-
tion; and all conductors of dummy, electric, and
street cars shall be required, and are hereby em
powered, to assign all passengers to seats on the
cars under their charge, so as to separate the
white and colored races as much as practicable;
and all conductors and other employees of rail-
roads and all conductors of dummy, electric, andi
street cars shall have, and are hereby invested
with, police powers to carry out said provisions.
See § 2724. As to penal provision, see § 535 P. C.
Duty to Assign.— Under this section and § 2719 it is not
only the right, but the express duty, of street -railroad
conductors to assign all passengers to seats in the cars in
which they are riding, "so as to separate the white andi
colored races as much as practicable." Electric Co. v. Lowe,
27 Ga. App. 350, 108 S. E. 313.
Duty as to Sick Passenger. — See Central Ry. Co. v.
Fleming, 13 Ga. App. 464, 79 S. E. 369. See also, 3 Cum.
Dig. 218.
Powers of Conductor. — To effectuate the provisions of
this section and § 2719 designed for the benefit and pro-
tection of both races, so as to preclude the possibility of
racial contact and friction, conductors are invested with
ample police powers. Electric Co. v. Lowe, 27 Ga. App.
350, 108 S. E. 313.
A reasonable construction of the power of a conductor in-
cludes not only the right to thus assign a seat at the time
a passenger enters the car, but the right to make such
necessary reassignments as the exigencies of the traffic
may require. Electric Co. v. Lowe, 27 Ga. App. 350, 108
S. E- 313.
Cited in Hillman v. Ga. R., etc., Co., 126 Ga. 814, 819, 56
S. E. 68. Gainesville v. Jackson, 1 Ga. App. 632, 57 S. E.
1007.
§ 2719. (§ 2271.) Penalty for remaining in car.
— Any passenger remaining in any car, or com-
partment, or seat, other than that to which he
may have been assigned, shall be guilty of a mis-
demeanor. The conductor and any and all em-
ployees on such cars are clothed with power to
eject from the train' or car any passenger who
refuses to remain in such car or compartment or
seat as may be assigned to him.
See notes to § 2718. See also §§ 2724, 2725. As to penal
provision, see § 536.
For a violation by a passenger of the penal provisions of
this section, not only may he be ejected from the car, but
he is subject to summary arrest by the conductor, with-
out warrant. See §§ 926, 927 P. C. Electric Co. v. Lowe,
27 Ga. App. 350, 108 S. E. 313.
§ 2720. (§ 2272.) Where car divided into com-
partments.— When a railroad-car is divided into,
compartments, the space set apart or provided
for white and colored passengers, respectively,
may be proportioned according to the proportion
of usual and ordinary travel by each on the road
or line on which said cars are used.
As to penal provision, see § 534.
§ 2721. (§ 2273.) White and colored passengers
to occupy different cars. — Officers or employees
having charge of such railroad-cars shall not
allow white and colored passengers to occupy
the same car or compartment; and for a viola-
tion of this section any such officer or employee
shall be guilty of a misdemeanor.
As to penal provision, see P. C, § 537.
§ 2722. (§ 2274.) Not applicable to nurses.—
But these provisions shall not apply to nurses or
servants in attendance on their employers.
As to penal provision, see P. C, § 540.
[672 ]
2723
RAILROADS AS COMMON CARRIERS
§ 275db
§ 2723. (§ 2275.) Seats, lights, etc.— All com-
mies operating and using compartment cars or
jparate cars shall furnish to the passengers
Dmfortable seats, and have such cars well and
lfficiently lighted and ventilated, and a failure
> do so shall be a misdemeanor.
As to penal provisions, see P. C, §§ 539, 529.
§ 2723(1). Cinder deflectors on railroad trains.
-All railroad companies operating passenger
•ains or coaches by steam within or throughout
lis State, are hereby required to put cinder de-
ectors, the same as are used on Pullman
Daches or that will keep cinders from entering
ie car, upon all windows of passenger coaches,
3 as to protect the passengers when the win-
ows are raised. Acts 1912, p. 157.
As to penalty for violation, see P. C, § 540 (1).
§ 2724. White and colored .passengers on
leeping-cars separated. — Sleeping-car com-
anies and railroad companies operating sleep-
lg-cars in this State shall have the right to as-
ign all passengers to seats and berths under
heir charge, and shall separate the white and
olored races in making said assignments, and
he conductor and other employees on the train
f cars to which said sleeping-car or cars may be
ttached shall not permit white and colored pas-
engers to occupy the same compartment. And
ny passenger remaining in any compartment
ther than to which he may be assigned shall be
uilty of a misdemeanor: Provided, that noth-
ig in this section shall be construed to compel
leeping-car companies or railroads operating
leeping-cars to carry persons of color in sleep-
lg or parlor-cars: Provided, that this section
hall not apply to colored nurses or servants
raveling with their employers. Acts 1899, p. 66.
See §§ 2716-2722. As to penal provision, see P. C, §
38.
§ 2725. Police powers of conductors and em-
•loyees. — A conductor or other employee of a
leeping-car, as well as a conductor or other em-
iloyee of the train to which a sleeping-car may
te attached, shall have full ^police power to en-
orce the preceding section, and a conductor or
)ther employee of a sleeping-car, or of a train
•.arrying sleeping-cars, who fails or refuses to
issist in ejecting a passenger violating the pro-
visions of said section, shall be guilty of a
nisdemeanor.
See §. 2719. As to penal provision, see P. C, § 538. As
o acting as peace officer without authority, see P. C, §
138.
§ 2726. (§ 2276.) Effect of notice to limit.— A
:ommon carrier can not limit his legal liability
>y any notice given, either by publication or by
mtry on receipts given or tickets sold. He may
nake an express contract, and will then be gov-
erned thereby.
I. Special Contract.
II. Bills of leading and Receipts.
III. Particular Limitations.
IV. Presumptions and Onus.
Cross References.
For full treatment, see 3 Cum. Dig. 336 et seq. ; 2 Enc.
Dig. 826 et seq. As to bill of lading with draft attached,
see § 4134. As to liability of carriers, see §§ 2714, 2712. As
to contracts respecting receiving live stock, see § 2768. As
to damage to property in transportation, see § 2777. As to
Ga. Code— 22 [ 6
injuries to person or property, see § 2779. As to limit as to
value of baggage, see § 2742.
I. SPECIAL CONTRACT.
See 3 Cum. Dig. 336, 2 Enc. Dig. 836.
Express or Implied Contract.— A common carrier may,
by special contract, limit his liability, and this contract
may be either an implied one, or an express one. Cooper
v. Berry, 21 Ga. 526, 551.
Parties Governed by Express Contract. — "When a com-
mon carrier makes an express contract, the contract is
the rule by which the parties are governed, and not the
general law as to the liability of common carriers, and the
intent of the parties to the contract is to measure their
rights and liabilities, and not the law which governs com-
mon carriers." Central Railroad v. Bryant, 73 Ga. 722,
725.
Contract Must Be Independent of Receipt.— The express
contract made with the shipper of the goods, limiting the
legal liability of the common-carrier under this section,
must be made independently of the receipt given for the
goods, and be proved independently thereof, as any other
contract is proved, when entered into by two or more par-
ties to it. Southern Express Co. v. Purcell, 37 Ga. 103,
112.
Limiting Losses Caused by Negligence. — A common
carrier can not, by special contract, exempt himself frcm
liability for loss occasioned by his own negligence. Pur-
cell v. Southern Express Co., 34 Ga. 315; Berry v. Cooper,
28 Ga. 543; Ga. R. Co. v. Gann, 68 Ga. 350.
The railroad company is under the duty, as a common
carrier, of exercising diligence in transporting goods; and
although it may relieve itself from its liability as an in-
surer of such goods, it is well established that it may not,
by special contract under this section, limit or procure re-
lease from its liability for negligence in so doing. Hearn
v. Georgia Ry. Co., 22 Ga. App. 1, 3, 95 S. E. 368; Evans v.
Mills, 124 Ga. 318, 322, 52 S. E. 538.
A defendant railway company rented a portion of its
right of way as a pasture for live stock, under a contract
containing a provision that the tenant will save and hold
harmless the company, from all damage, that may arise
from injury of any building, or personal property of any
description, or from any other cause whatever, whether the
same should be attributable to the negligence of the em-
ployees of said company or not, where such damage, in-
jury, or liability is caused or increased by reason of the
use of the premises hereunder. The provision of the con-
tract exempting the railway company from liability for
negligence was not void as contrary to public policy. Hearn
v. Georgia Ry. Co., 22 Ga. App. 1, 95 S. E. 368.
Same — Passenger on Freight Train. — An express con-
tract entered into by the carrier and the passenger, un-
der the terms of which the carrier is released from all
liability to the passenger for personal injuries received
while a passenger on a freight-train, is in effect a con-
tract by which the carrier undertakes to relieve itself from
the consequences of the negligence of itself and servants,
and can not be enforced. Georgia Railway Co. v. Lipp-
man, 110 Ga. 665, 36 S. E. 202.
Agent Delivering Property to Carrier. — If the agent de-
livers the property in his own name and his principal is
undisclosed, the latter is bound by any special contract,
but if the company receives the goods as those of the
principal, and, without the knowledge or consent of the
latter, the carrier attempts to make a special contract with
the agent, the principal is not bound thereby, unless he
does some act from which the law infers a ratification.
Wellborn v. Southern Ry. Co., 6 Ga. App. 151, 64 S. E. 491.
Parol Evidence to Show Contract. — Parol evidence is ad-
missible to show a special contract between a shipper and
a common carrier under this section, notwithstanding the
carrier's clerk had given a receipt, specifying the terms
on which the freight was received. Purcell v. Southern
Express Co., 34 Ga. 315.
Applied in Central Ry. Co. v. City Mills Co., 128 Ga.
841, 58 S. E. 197; Atlantic Compress Co. v. Central, etc.,
Ry. Co., 135 Ga. 140, 68 S. E. 1028.
II. BILLS OF LADING AND RECEIPTS.
See 3 Cum. Dig. 337, 2 Enc. Dig. 837.
Notice Not Sufficient — Contract Necessary. — Under this
section the liability of the carrier can not be limited by a
mere notice in the bill of lading; but if a special contract
be incorporated in the bill of lading, and signed by both
parties, it is sufficient. Georgia Railroad v. Spears, 66
Ga. 485: Ga. R. Co. v. Gann, 68 Ga. 350.
Signature of Shipper. — Under this section a provision of
the bill of lading that the railroad should only be liable
for the safe delivery of the goods to its connecting carrier
is without effect to relieve it from liability for damage to
'3]
§ 2726
RAILROADS AS COMMON CARRIERS
§ 272(
the goods while in the possession of the connecting carrier,
unless such bill of lading is signed by the shipper. Georgia
Ry. Co. v. Kavanaugh, 92 Fed. 56.
Where bill of lading attached to the plaintiff's petition
shows that it was signed by the carrier's agent alone, and
not by the shipper, the plaintiff was not bound by any
stipulation therein by which it was sought to limit the
liability of the carrier under this section. I,amb v. Mc-
Han, 17 Ga. App. 5, 86 S. E. 252.
It was held under this section that a carrier could not
limit its liability by inserting in a bill of lading a pro-
vision that, for all loss or damage occurring in the transit,
the legal remedy should be sought and held only against
the particular carrier in whose custody the cotton might
be at the time thereof, there being no express contract to
that effect, the bill of lading being signed only by the
agent of the company, and not having been agreed to by
the shipper. Central Railroad v. Dwight Mfg. Co., 75 Ga.
6°9- . , . . ,.„ c
Assent of Shipper Necessary.— A stipulation in a bill ■ ot
lading which exempts the carrier from liability unless no-
tice is given of the damage within a specified time, is one
of the matters forbidden by this section, and is not ef-
fectual without proof of assent thereto by the shipper.
Central Railroad Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838;
McElveen v. So. Ry. Co., 109 Ga. 249, 255, 34 S. E. 281.
See also, Railway Co. v. Merchants, etc., Bank, 137 Ga.
391, 73 S. E. 637.
Same— Contained in Contract.— Where the stipulations re-
ferred to were not only assented to by the shipper, but were
contained in an express written contract, the shipper is
bound thereby. Southern Railway Co. v. Adams, 115 Ga.
705, 708, 42 S. E. 35.
Reference in Receipt to Provision in Bill of Lading.— The
inclusion in a receipt given by a compress company to the
owner of a cotton of a provision that it was "subject to all
the conditions of bill of lading of the carrier, which may
be issued in exchange for this receipt," and the existence
in the printed conditions on the back of the bill of lading
of a statement that "No carrier or party in possession of
all or any of the cotton hereby described shall be liable
for any loss therefor or damage thereto by * * * fire,"
did not constitute such an express contract between the
shipper and carrier as to relieve the latter from liability
for loss occurring by fire, under this section. Atlantic
Compress Co. v. Central, etc., Ry. Co., 135 Ga. 140, 68 S.
E. 1028; Seaboard Air-Line Ry. v. Atlantic Compress Co..
135 Ga. 413, 69 S. E. 566.
Prior Parol Agreement as Affecting Contract in Bill. —
Under this section resort can not be had to a. prior parol
agreement to add to or vary, in behalf ol the shipper, the
terms of a special contract contained in a bill of lading ac-
cepted and signed by him before the goods were shipped,
it not appearing that his signing was the result of fraud or
mistake. Richmond °; Danville R. Co. v. Shomo, 90 Ga.
496, 16 S. E. 220
Stipulation '"A Receipt. — The mere insertion, in a printed
form of ~2ceipt used by an express company, of terms
limiting as liability, and the delivery of such a receipt to
a -bipper, without more, will not under this section suffice
Jo make an express contract for the purpose of limiting its
liability as a common carrier. Southern Express Co. v.
Hanaw, 134 Ga. 445, 67 S. E. 944.
The carrier, can not under this section limit his liability
by entry on receipts given, though he may make an ex-
press contract. This section intended to require the as-
sent of the shipper to be given to any modification of +he
common-law contract of common carriers. Southern Ex-
press Co. v. Newby, 36 Ga. 635, 645.
A stipulation in a receipt, not known to the shipper, given
to him by an agent of an express company, does not limit
the company's liability as a common carrier. Mosher v.
So. Express Co., 38 Ga. 37.
III. PARTICULAR LIMITATIONS.
Notice or Special Acceptance. — A carrier can not vary
his responsibility by notice or special acceptance, such be-
ing void as contravening the policy of the law. Fish v.
Chapman, 2 Ga. 349.
Carriage of Live Stock. — A common carrier of live stock
may limit his liability by special contract, as recognized in
this section. Georgia R. v. Beatie, 66 Ga. 438, 442; Georgia
R. v. Spears, 66 Ga. 485.
Same — Reduced Rate as Consideration. — A contract for
the carriage of live stock, limiting the liability of a car-
rier in consideration of a reduced rate, is valid and bind-
ing under this section. Western & Atlantic R. Co. v. Wa!-
rip, 18 Ga. App. 263, 89 S. E. 346.
Same — Liability only in Event of Gross Negligence. — A
carrier of live stock may by special contract so limit its
[674]
liability for loss or damage that it will be liable only ir
the event that it is guilty of gross negligence. Georgia
Railway Co. v. Hall, 124 Ga. 322, 52 S. E. 679. See alsoj
Ga. So., etc., Ry. Co. v. Greer, 2 Ga. App. 516, 58 S. E.
782.
Same — Viciousness of Animals or Defects in Car. — Under
this section for a sufficient consideration a shipper relieved
the carrier of injuries to the live stock caused by vicious-
ness of the animals or defects in the car, which had been
examined by the shipper. Ragsdale v. Southern Ry. Co.,
119 Ga. 627, 46 S. E. 832.
Baggage. — See § 2742. Where the evidence showed that
the plaintiff had entered into an express contract in which
it was agreed that the defendant would not be liable for
loss of baggage beyond its own line, and that the bag-
gage alleged to have been lost was delivered by the de-
fendant to the connecting line, and not returned to the
defendant, a recovery for the plaintiff was unwarranted.
Southern Ry. Co. White, 108 Ga. 201, 33 S. E. 952.
Carrier of Passengers. — While this section applies only
to carriers of goods, yet, under general law, a carrier c-f
passengers can not limit his legal liability for the con-
sequences of his own negligence, by such notice, or even
by express contract. Southern Railway Co. v. Watson,
110 Ga. 681, 36 S. E. 209.
A carrier of passengers can not limit his obligation to.
exercise extraordinary diligence for the care of his pas-
sengers by a notice or publication, nor can he do so even
by an express contract, because such a contract would be
void, as being against public policy. Central of Ga. Ry.
Co. v. Lippman, 110 Ga. 665, 36 S. E. 202; Southern Rail-
way Co. v. Watson, 110 Ga. 681, 687, 36 S. E. 209; Hearn
v. Georgia Ry. Co., 22 Ga. App. 1, 3, 95 S. E. 368.
Through Tickets. — A railroad company which sells tickets
to passengers over its own lines of road and lines of road
of other companies, is liable for the sure and safe trans-
portation of such passengers to the point of destination,
notwithstanding there may be indorsed or printed on the
tickets so sold and issued a notice that the company is-
suing and selling such tickets shall not be liable, except
as to its own lines of road. Central Railroad v. Combs, 70
Ga. 533.
Entry on Ticket as to Duration of Usefulness. — An en-
try on the ticket to the effect that it must be used within
a time therein specified does not make an express contract
under this section, unless the purchaser at the time the
ticket was delivered knew of the entry and assented to its
terms. Body v. Spencer, 103 Ga. 828, 30 S. E. 841.
Exacting Signature of Passenger as Condition of Re-
turning Ticket. — Under this section, without making an
express contract with the passenger, a railroad company
can not, after selling a return ticket and receiving pay
therefor, exact of the passenger as a condition of return-
ing of the ticket that he shall sign it and that the signa-
ture shall be attested by a given agent who shall stamp
it. Phillips v. Georgia Railroad, etc., Co., 93 Ga. 336, 20
S. E. 247.
Free Pass. — The railroad company is permitted to re-
lieve itself from liability for injury caused by its negligence
to one riding on a gratuitous pass, because in such case
the relation of carrier and passenger does not in its full
sense exist. Hearn v. Georgia Ry. Co., 22 Ga. App. 1, 3,
95 S. E. 368. See also, Holly v. So. Ry. Co., 119 Ga. 767y 47
S. E. 188.
As a general rule, a stipulation in a free pass given by a
carrier, to the effect that the person who accepts it as-
sumes all risks of injury in transportation, is enforceable:
and as to a passenger who has accepted transportation un-
der such a pass a carrier is liable only for injuries result-
ing from wantonness or wilful negligence; but an excep-
tion to this rule is presented in the provision of the
"Hepburn act" [U. S. Comp. St. Supp. 1911, p. 1288] which
permits a railroad company to issue free transportation tc
its employees and members of their families. Railway Co.
v. Thompson, 13 Ga. App. 528, 80 S. E. 1097.
Limitation as to Amount Recoverable. — While a bona
fide agreement may be made as to the value of property
to be transported, as a basis for fixing the charges, and
may be valid, yet a common carrier can not, even by ex-
press contract, put an arbitrary limitation upon its lia-
bility for damages. Such a contract is contrary to public
policy. Southern Express Co. v. Hanaw, 134 Ga. 445, 67
S. E. 944; Central of Georgia R. Co. v. Hall, 124 Ga. 322,
52 S. E. 679.
A stipulation in the receipt given by the carrier at the
time of the shipment, as to the value of the goods shipped,
is not binding upon the owner unless expressly agreed to
by him; and in the event of a breach of the contract of
carriage by the carrier, he is entitled to recover full
damages as shown by the evidence, regardless of such
2727
RAILROADS AS COMMON CARRIERS
§ 2729
tatement as to the value of the goods. Southern Ex-
ress Co. v. Briggs, 1 Ga. App. 294, 57 S. E. 1066.
Telegraph Companies.— The supreme court seems to
onsider telegraph companies as standing upon a similar
asis with common carriers, as to the question of limit-
ig liability. Johnston v. Western Union Tel. Co., 33 Fed.
52, 364.
IV. PRESUMPTIONS AND ONUS.
See 3 Cum. Dig. 348, 2 Enc. Dig. 348.
Presumption against Carrier. — Where there was a
pecial contract shown, limiting the liability of the car-
ier of live stock, where the plaintiff proved that the stock
ras lost or injured while in the possession of the carrier,
fie law would raise a presumption of negligence against
tie carrier, which must be rebutted by proof showing the
xercise of that degree of diligence required by the con-
ract. Georgia Southern, etc., Ry. Co. v. Greer, 2 Ga. App.
16, 58 S. E. 782.
Shipper's Burden. — Where a shipper signs a contract un-
er this section limiting the liability of the common car-
ier and reciting that it is made in consideration of a re-
uced rate of freight, such recital is prima facie true, and
he burden is upon the shipper to prove the contrary.
Georgia Southern, etc., Ry. Co. v. Greer, 2 Ga. App. 516,
3 S. E. 782.
§ 2727. Station accommodations for passengers.
-All railroad companies operating passenger-
-ain, and taking on and putting off passengers,
r that operate passenger-trains at or through
ounty seats and towns and cities having a popu-
ition of more than 1,000, in this State, are re-
uired to keep open at least one hour before the
rrival of and half an hour after the departure,
ccording to the- scheduled time for the arrival
f and the departure of said trains, a lighted and
omfortable room, between the hours of 6 o'clock
. m. and 6 o'clock a. m., for the comfort and
onvenience of their passengers. Acts 1906,
. 101.
Cross References.— See 3 Cum. Dig. 192; 2 Enc. Dig. 728.
ls to powers of commission over such matters, see §
664. As to penal provision, see P. C, § 532.
Passengers. — Where a. carrier does maintain' and keep
pen a waiting-room for the convenience of through pas-
engers, although not required so to do by this section thus
npliedly inviting them to avail themselves of the accom-
odation of the waiting-room, a passenger who avails
imself of such accommodation by accepting the invitation
nd occupying the waiting-room is, by virtue of his right
s a passenger, entitled to remain in the waiting-room and
njoy its accommodations while waiting to make connec-
ion with the outgoing train; and if the carrier's agent in
harge of the depot unjustifiably evicts him, he may main-
ain an action against the carrier. This ruling is not in
onflict with Smith v. Seaboard Air-Line Ry., 10 Ga. App.
27, 73 S. E. 523. Mooneyham v. Nashville, etc., Ry. Co.,
3 Ga. App. 406, 126 S. E. 736.
Cited in Riley v. W. & T. R. Co., 133 Ga. 413, 65 S. E.
90. Smith v. Seaboard Air Line Ry., 10 Ga. App. 227, 73
I. E. 523.
§ 2728. (§ 2277.) Injuries by common carriers,
•utside of corporate authority. — In all cases
vfiere the persons or property of an individual
tiay be injured or property destroyed by any
orporation engaged as a common carrier in the
ransporation of freight or passengers, or both,
ither by land or water, such corporation shall
ie liable to pay damages to any one whose person
>r property may be so injured or destroyed, not-
vithstanding the fact that such corporation was
.cting without the scope of its charter, if such
orporation would be liable for such damages if
cting within its chartered powers and authority.
Vets 1884-5, p. 136.
§ 2729. (§ 2278.) Duty as to reception of goods,
>tc. — A common carrier, holding himself out to
he public as such, is bound to receive all goods
ind passengers offered that he is able and accus-
[6
tomed to carry, upon compliance with such rea-
sonable regulations as he may adopt for his own
safety and the benefit of the public.
Cross References. — As to duties and liabilities of car-
riers generally, see 3 Cum. Dig. 163; 2 Enc. Dig. 705. As
to duty to receive and carry passengers, see 3 Cum. Dig.
167; 2 Enc. Dig. 707. As to duty to receive and carry
goods, see 3 Cum. Dig. 286, 2 Enc. Dig. 806. As to duty to
receive and carry live stock, see 3 Cum. Dig. 378. See also
§§ 2767-2769. As to regulating transportation of freight,
see § 2634. As to what passengers may be refused, see §
2750. As to connecting roads receiving freights tendered in
cars, see § 2756.
In General. — A carrier is bound under this section to re-
ceive ordinary merchandise for transportation with the full
measure of liability and at reasonable rates on demand,
and in case of its refusal to do so the shipper has a remedy
in damages. Inman & Co. v. Seaboard Air-Eine Ry. Co.,
159 Fed. 960.
Duty to Furnish Cars. — A railroad company is under a
duty to provide sufficient cars for transporting, without
reasonable delay, the usual and ordinary quantity of
freight offered to it, or which might be ordinarily ex-
pected in its business. Wadley So. Ry. Co. v. Kent, 145
Ga. 689, 89 S. E. 765.
Same — Character of Goods. — There may be things of
such an unusual character that a railroad company is not
bound, under its general duty as a common carrier, to
provide cars or special facilities for their transportation.
But if in the ordinary course of its business it is ac-
customed to receive lumber which requires cars forty feet
in length for transportation, or holds itself out as a com-
mon carrier thereof, the duty to furnish cars for that pur-
pose arises. Wadley So. Ry. Co. v. Kent, 145 Ga. 689,
89 S. E. 765.
Same — Considerations for Jury. — The condition of busi-
ness, the demand for cars, whether usual and ordinary, or
unusual and extraordinary, what the defendant had done-
with a view of providing facilities for the usual and ordi-
nary demands of its business, and the ability or inability
to get cars at the time in question, were facts for the
consideration of the jury in determining whether the de-
fendant had complied with its duty. Wadley So. Ry. Co.
v. Kent, 145 Ga. 689, 89 S. E. 765.
If a railroad company failed to perform its duty in re-
gard to providing facilities for reasonably prompt trans-
portation of freight of a kind and quantity offered to it in
the usual and ordinary course of business, in a suit for
damages arising therefrom the mere fact that the com-
pany expected to get cars from other railroad companies,
and that they refused to let it have such cars because they
had an unusual demand therefor, would not necessarily re-
lieve the defendant company from liability. Wadley So.
Ry. Co. v. Kent, 145 Ga. 689, 89 S. E. 765.
Carrier by Sea Making Bookings.— The obligation of re-
ceiving goods without preference under this section did not
inhibit a common carrier by sea from making bookings, —
that is, from making specific arrangements for the trans-
portation of goods by a particular vessel in advance of its
sailing day, provided this privilege is indifferently extended
to all patrons, or if the grant of this privilege to shippers
of one commodity does not interfere with the carrier's dis-
charge of its duty to the shippers of other commodities
with respect to the receipt and transportation of goods.
Ocean Steamship Co. v. Savannah Locomotive Works, etc.,
Co., 131 Ga. 831, 63 S. E. 577; Merchants, etc., Transp. Co.
v. Granger, 132 Ga. 167, 170, 63 S. E. 700.
Invalid Ordinance as Excuse for Non- Reception of
Goods.— A common carrier, able and accustomed to trans-
port and deliver goods, can not lawfully refuse to do so
merely because of the passage of an invalid municipal
ordinance regulating the transportation of the goods in
question. Southern Express Co. v. Rose Co., 124 Ga. 581,
53 S. E. 185.
Liability of Carrier for Conversion.— Where a common
carrier receives goods offered under this section, the pos-
session thereof by the person offering the same as freight
being apparently rightful, though as a matter of fact it
may not be actually so, the carrier will not be liable as for
a conversion, in an action brought by the true owner, un-
less the latter intervenes before the goods are delivered
and demands them or gives notice of his right to the prop-
erty in question and of his intention to enforce it. Shell -
nut v. Georgia Ry. Co., 131 Ga. 404, 62 S. E. 294.
Power to Make Regulations. — Construing this section
and §§ 2662, 2750, 2630 in harmony, it is evident that the
power of a common carrier to make reasonable regula-
tions must yield where regulations have been made by
authority of the State, unless they are invalid. Railroad
75]
2730
RAILROADS AS COMMON CARRIERS
§ 273(
Comm. v. Louisville, etc., R. Co., 140 Ga. 817, 827, 80 3.
E- 327.
The law will not sanction any practice of a common car-
rier, under the guise of regulating its business, that will
relieve the carrier of its legal obligation. Merchants, etc.,
Transp. Co. v. Granger, 132 Ga. 167, 171, 63 S. E. 700.
Requiring Knowledge of Goods. — A carrier may adopt
reasonable rules and regulations for his own safety and
the benefit of the public, such as requiring the nature and
value of the goods delivered to him to be made known, and
any fraudulent acts, sayings or concealments by his cus-
tomers, will release him from liability. Southern Express
Co. v. Newby, 36 Ga. 635.
No Responsibility until Goods Received with Instruc-
tions.— A rule that no responsibility for freight would be
assumed until received with proper shipping instructions
and receipted for, is valid, under this section. Central,
etc., Ry. Co. v. Smith, 31 Ga. App. 135, 120 S. E. 30.
Reserving Ship Space. — Under this section it was held that
a rule that ship space must be reserved before lumber cars
are switched from railroad yards to ship docks, was rea-
sonable. Georgia R. Co. v. Dixon, 141 Ga. 755, 82 S. E- 37.
Stopping Only at Designated Places.— In the absence of
statutory prohibition or regulation, a railroad company may
adopt a rule under this section, that certain passenger-
trains, running regularly on its road, will stop only at
designated places. Southern Ry. Co. v. Flanigan, 10 Ga.
App. 745, 74 S. E. 85.
Non-Stoppage at Certain Place. — If a railway company
may under this section make reasonable regulations in the
conduct of its business, in the absence of a statute to the
contrary a schedule which provides for the non-stoppage
of a certain train at a particular place will not be considered
unreasonable, where it appears that other trains are sched-
uled to stop at such place, and it is not alleged that they
•do not afford adequate service. Southern R. Co. v. Bailev,
143 Ga. 610, 85 S. E. 847.
Mandamus to Enforce Duty of Carrier. — A private party
may, by mandamus, enforce the performance of the pub-
lic duty imposed by this section by a common carrier as to
matters in which such party has a special interest. South-
ern Express Co. v. Rose Co., 124 Ga. 581, 53 S. E. 185.
Instructions. — The court having charged the jury in the
language of this section, as to the duty of a common car-
rier generally, it was not error not to repeat the expression
"which he is able and accustomed to carry" in other por-
tions of his charge dealing with the duty of a railroad com-
pany to furnish cars for transportation of freight without
unreasonable delav. Wadley So. Rv. Co. v. Kent, 145 Ga.
689, 89 S. E. 765.'
Cited in Miller v. Georgia R. Co.. 88 Ga. 570, 15 S. E-
316; Southern Rv. Co. v. Watson, 110 Ga. 681, 36 S. E-
209; Southern R. Co. v. Moore, 133 Ga. 806, 67 S. E. 85.
§ 2730. (§ 2279.) Time of responsibility.— The
responsibility of the carrier commences with the
delivery of the goods, either to himself or his
agent, or at the place where he is accustomed or
agrees to receive them. It ceases with their de-
livery at destination according to the direction
of the person sending, or according to the cus-
tom of the trade.
Cross References. — As to what constitutes delivery to car-
rier, see 3 Cum. Dig. 300; 2 Enc. Dig. 807. As to de-
livery to consignee, see 3 Cum. Dig. 316, 2 Enc. Dig. 818.
As to fixing of storage rates, see § 2649. As to force of
custom as law, see § 1, par. 4. As to how freight lists
made out, see § 2747. As to evidence of usage, see § 5793.
As to when undelivered goods may be sold, see §§ 2757-2760
As to responsibility where there are several connecting
roads, see § 2752.
Editor's Note. — This section follows what is known as
the Massachusetts Rule, to the effect that when the
transportation is ended and the goods are ready for de-
livery at destination, the liability imposed as a common
carrier is ended regardless of notice or of reasonable time.
for removal. This is the minority rule in this country, but
is founded on good reason as stated in the leading case
of Norway Plains Co. v. Boston, etc., R. Co., 1 Gray
(Mass.) 263, 274. The reason urged for the support of this
rule is in part that, as a railroad is unequipped to make
personal delivery and as it has successfully carried out
the severe responsibilities imposed by law, during trans-
portation, there is no good reason for applying the same
severe rules of liability, after storage in a freight house.
The majority view, however, sometimes called the New
Hampshire Rule, is to the effect that the carrier is liable
as an insurer, not only during the transit, but until it ha;
notified the consignee of the arrival of the goods at tin
point of destination, and until he has reasonable time tc
effect their removal. The leading case in support of thiif
rule is Moses v. Boston, etc., R. Co., 32 N. H. 523, 538
The courts of most states follow this rule including thosej
of Alabama. For a clear and concise discussion of the dif-
ferent rules of liability, see 18 L. R. A. 427; 10 C. J. 234
where each rule is stated with citations. See also, Georgia
Cotton Co. v. Georgia R. Co., 19 Ga. App. 580, 91 S. E. 933.
Reception of Goods by Carrier. — "The reception of thtf
goods to be carried, makes the carrier liable for their safe
custody and transportation within a reasonable time; anc|
if he would relieve himself from liability, he should by|
proof, show such facts as may be necessary for ■ that pur -j
pose." Southern Express Co. v. Newby, 36 Ga. 635, 647.
Same — At Depot. — If the agent of a carrier agrees to re-
ceive goods at the depot where they are at the time, the
liability as a common carrier begins under this section.
Southern Express Co. v. Newby, 36 Ga. 635.
Loading Car on Side Track as Beginning of Liability.—
Where a railroad company, in pursuance of an agreement
with a warehouse company, places one of its cars on a
side-track in front of the warehouse, for the purpose of hav-j
ing the car loaded with cotton stored in the warehouse, for]
immediate shipment, the railroad company to pay for the
work of loading, and the cotton is loaded on to the car by
employees of the warehouse company, properly marked as
to destination, and with name of consignor and consignee,)
this is a delivery under this section to the railroad com-
pany as a common carrier of the cotton, and the railroad
company would be responsible to the owner of the cotton
for its destruction by fire while in its possession. Georgiaj
Ry. Co. v. Bird, 10 Ga. App. 423, 73 S. E. 599.
Removing Car from Side Track. — There is nothing in the!
laws or public policy of this State which prevents a ship-
per and a railroad company from making a contract in
relation to the use of a side-track, wherein it is agreed
that, as to cars loaded by the shipper on the side-track,i
delivery to the carrier is understood to have taken place
whenever the carrier removes the car from the side-track
and places it in its freight-train for shipment. Grocery
Co. v. Railroad Co., 8 Ga. App. 677, 70 S. E- 154.
Delivery to Carrier Must Be Proved. — Delivery of the
goods must be proved in order to charge a common car-
rier for their loss. It is a fact for the jury to determine,!
and if there is any evidence of delivery, the case will go
to the jury on that fact. Dibble v. Brown, 12 Ga. 217.
Ending of Responsibility as Carrier. — "As a general rule
a railroad company is responsible as common carrier onlyj
for the safe deposit of goods shipped by freight upon the
platform or in the warehouse of the road at the end of
their transit, there to await delivery to the consignee when
he should call for them; and from the time of such deposit,
even without notice by the carrier to the consignee, the
liability of the railway is usually changed from that of a
common carrier to that of a warehouseman." Georgia,
etc., R. v. Pound, 111 Ga. 6, 7, 36 S. E- 312. See ante, this
note, "Editor's Note."
Where goods are shipped by railway, and arrive at their
destination within the usual time required for transporta-
tion, and are there deposited by the company in a place of
safety and held by them ready to be delivered on demand,
their liability as common carriers ceases under this sec-
tion (unless the custom of the trade is shown to be other-
wise as to delivery), and that of warehouseman begins.
Allen v. Southern Ry. Co., 33 Ga. App. 209, 126 S. E. 722;
Southwestern R. Co. v. Felder, 46 Ga. 434; Knight v. R. B.
Co., 127 Ga. 204, 56 S. E. 363.
Delivery to Agent. — A delivery of goods to the duly au-
thorized agent of the owner or assignee, is a good delivery
under this section. Southern Express Co. v. Everett, 37
Ga. 688.
Boat Landing as Destination. — If the owner of a boat di-
rects cotton to be left at a particular landing on the river,
agreeing to receive it there, a deposit of the cotton at that
place constitutes a good delivery. Fleming v. Hammond,
19 Ga. 145.
Delivery beyond Terminus. — Whether a railroad com-
pany is bound to carry or transport goods to a point of
destination beyond the terminus of its road, depends upon
the contract between the parties. Savannah, etc., Ry. Co.
v. Western Ry. Co., 77 Ga. 376, 3 S. E- 416.
Delivery under Through BUI of Lading. — Under this sec-
tion a through bill of lading bound the railroad to deliver
the cotton, at the destination, notwithstanding a stipula-
tion in the bill of lading that the company shall not be
responsible as common carriers of property beyond its line
of road, it not appearing that the shipper of the cotton had
[676]
§ 2731
RAILROADS AS COMMON CARRIERS
§ 2732
) expressly assented to the stipulation. Albany, etc., R. Co.
I v. Merchants, etc., Bank, 137 Ga. 391, 73 S. E. 637.
Goods Remaining in Car after Verification. — "Where a
railroad company has transported a carload of goods and
notified the consignee of their arrival, the delivery is
complete when the agent of the consignee verifies the
goods in the car and gives his receipt for the same;" and
"where the agent of the consignee removes most of the
goods, but leaves some in the car on account of approach-
ing night, and the car is broken open after having been
closed and sealed by the agent of the railroad company,
and some of the goods stolen therefrom, the railroad com-
pany, if liable at all, is liable only for gross neglect, as a
gratuitous bailee." Allen v. Southern Ry. Co., 33 Ga. App.
209, 126 S. E. 722.
Delivery of Loaded Cars to Consignee. — Under this sec-
tion, it was held that the carrier's relation as such ceased
on delivery of loaded cars to the consignee, and until it
retook possession of the cars after unloading. The railroad
was not liable, therefore for a destruction of the cars by
fire. Central, etc., R. Co. v. Milledgeville Ry. Co., 138 Ga.
434, 75 S. E. 614.
Notice to Consignee. — "The law nowhere imposes upoti
common carriers the obligation of notifying consignees of
the arrival of their freight at the point of destination, pro-
vided it has arrived in the due course of transportation."
Georgia, etc., R. Co. v. Pound, 111 Ga. 6, 7, 36 S. E. 312;
Southwestern R. Co. v. Felder, 46 Ga. 434. See ante, this
note, "Editor's Note."
If goods arrive cut of time, and after they have been
demanded by the consignee, it might require notice of
their arrival to the consignee, and a reasonable time after,
to relieve the company from the extraordinary liability im-
posed by law upon a common carrier. Southwestern R.
Co. v. Felder, 46 Ga. 434.
Custom of Trade. — The custom of the trade, under this
section, refers to -the custom "at destination." Albany,
etc., Ry. Co. v. Merchants, etc., Bank, 137 Ga. 391, 397, 73
S. E. 637.
Same — As Varying Written Contract. — -Under this section
parol evidence of usage and custom to vary the terms of a
plain, unambiguous written contract is not admissible.
Albany, etc., Ry. Co. v. Merchants, etc., Bank, 137 Ga.
391, 397, 73 S. E. 637.
Proving Custom as to Notice. — In order to show the ex-
istence of a custom varying the general rule as announced
in this section at a particular place, by reason of the rail-
road company having observed a usage of notifying con-
signees of the arrival of goods, it must be affirmatively
proved that this usage was of an established and general
nature. Georgia, etc., R. v. Pound, 111 Ga. 6, 36 S. E.
312; Seaboard Air-Line Co. v. Salios, 14 Ga. App. 711, 82
S. E. 59.
Chartered Car. — In the case of a chartered car, as in
other cases of carriage of freight, the responsibility is that
prescribed by this section. Central R., etc., Co. v. Ander-
son, 58 Ga. 394.
Measure of Damages. — When a common carrier fails to
deliver goods according to the terms of the contract, the
measure of damages is the value of the goods at the time
and place at which it is agreed to deliver them, less the
transportation charges. Albany, etc., Ry. Co. v. Mer-
chants, etc., Bank, 137 Ga. 391, 73 S. E. 637; Taylor &
Co. v. Collier. 26 Ga. 122; Lamb v. McHam, 17 Ga. App.
5, 86 S. E. 252.
Question for Jury. — As to what constitutes a good de-
livery, under the facts of a case is a question for the jury.
Central, etc., Co. v. Hines, 19 Ga. 203.
Cited in Baugh v. McDaniel, 42 Ga. 641, 655.
§ 2731. (§ 2280.) For baggage.— The carrier oi
passengers is responsible only for baggage placed
in his custody; yet a passenger can not relieve
himself from liability for freight by assuming to
take care of his own baggage.
Cross References. — For full treatment, see 3 Cum. Dig.
250, 2 Enc. Dig. 787. As to limit as to value of baggage,
see § 2742. As to lien on baggage, see § 2743.
Editor's Note. — In the opinion of the editors the word
"freight" in this section means charges. With this con-
struction the section becomes more clear.
Baggage Defined. — By baggage is understood such arti-
cles of necessity or personal convenience, as are usually
carried by passengers, for their personal use. What
articles are usually carried by passengers, is a question
to be left to the jury. Dibble v. Brown, 12 Ga. 217.
By baggage is meant the ordinary wearing apparel
customarily carried by travelers, and such other articles
[ 677 ]
as may be needed for his comfort or amusement. Hutchins
& Co. v. Western, etc., Railroad, 25 Ga. 61.
Money and Merchandise. — Money, except for the pay-
ment of expenses, and merchandise are not included in
the term baggage. Hutchins & Co. v. Western, etc., Rail-
road, 25 Ga. 61. See also, Dibble v. Brown, 12 Ga. 217.
Carrier of Baggage Liable as Common Carrier. — Those
who carry passengers for hire, as regards the passengers'
baggage, are like common carriers, liable for its loss, un-
less caused by the act of God or the public enemy. Dib-
ble v. Brown, 12 Ga. 217.
"At common law, as v/ell as by the law of this state,
no excuse avails a carrier for the loss of the baggage of
one who sustains to it the relation of passenger, except
act of God, irresistible accident, or destruction by public
enemy." Southern R. Co. v. Rosenheim & Sons, 1 Ga.
App. 766, 768, 58 S. E. 81.
Same — Extra Baggage. — If railroads receive extra bag-
gage, to be carried for compensation, they are, as to such
extra baggage liable as common carriers. Dibble v.
Brown, 12 Ga. 217.
Detention of Baggage. — "During the time within which a
railroad company may reasonably detain a passenger's
baggage, the relation of carrier and passenger still exists
between the parties, and the liability of tbe railroad com-
pany does not become that of a mere warehouseman."
Georgia R., etc., Co. v. Phillips, 93 Ga. 801, 802, 20 S. E-
646.
If the plaintiff demanded her baggage of the company
immediately after reaching her destination, and the rail-
road refused to deliver until morning, and before morning
the baggage was destroyed by fire, then the railroad is
liable as a common carrier. Georgia R., etc., Co. v. Phil-
lips, 93 Ga. 801, 20 S. E. 646.
Through Ticket. — Where a passenger with a through
ticket over a connecting line of railroads checks his bag-
gage at the starting point through to his destination, and
upon arriving it is damaged or has been broken open and
robbed, he may sue the road which issued the check, or
he may sue the road delivering the baggage in bad order.
Wolff v. Central R. Co., 68 Ga. 653.
The storage of a trunk for a night was not for an un-
reasonable length of time, and if it was removed the next
morning from the room to the platform for the purpose of
being sent forward with the passenger on the other road,
and the company's agent undertook to perform this duty,
but neglected it, the company would be liable, at least, for
want of ordinary care. Rome Railroad v. Wimberly, 75
Ga. 316.
Leaving Trunks in Baggage Room. — One who, having
been a passenger, arrives with his baggage at destination,
surrenders his checks, opens up the trunks in the bag-
gage-room, and afterwards leaves the trunks in the bag-
gage-room by permission of the baggage clerk, upon a
statement that he will be going off again next day and will
then recheck them, can not hold the railway company re-
sponsible, as a carrier of baggage, for the destruction of
the trunks by fire during the night. Southern R. Co. v.
Rosenheim & Sons, 1 Ga. App. 766, 58 S. E. 81.
§ 2732. (§ 2281.) Checks for baggage.— It shall
be the duty of the railroad companies to cause
their conductors, agents, or employees to be pro-
vided with checks, so as to check all trunks
or separate baggage or passengers from
station to station on their roads, when re-
quired; and it shall be the duty of the con-
ductor of every passenger-train to cause, upon
application to him, all trunks and baggage to be
checked from any station to any point of desti-
nation on their road, or any road running under
the control of the company of which he is con-
ductor, under a penalty of fifty dollars for every
failure to comply promptly with such requisition,
to be recovered, in the justice court of the dis-
trict where the demand for check was made, out
of the company upon whose conductor the de-
mand was made. Act 1847, Cobb, 398; Acts
1857, p. 65.
See 3 Cum. Dig. 251; 2 Enc. Dig. 789. As to selling
tickets of connecting road, see § 2753.
A baggage check is in legal effect a bill of lading for the
baggage. Lewis v. Ocean Steamship Co., 12 Ga. App. 191,
76 S. E. 1073.
§ 2733
RAILROADS AS COMMON CARRIERS
§ 273
§ 2733. Traffic in non-transferable tickets. — It
shall be unlawful for any person, other than the
authorized agent of the common carrier issuing
the same, to sell or otherwise deal in, or offer to
sell, any railroad, railway, steamship, or steam-
boat passenger ticket which shows that it was
issued and sold below the standard schedule rate
under contract with the original purchaser, en-
tered upon such ticket and signed by such origi-
nal purchaser, to the effect that such ticket is
non-transferable and void in the hands of any
person other than the original purchaser thereof:
Provided, however, that nothing in this section
shall be construed as depriving the original pur-
chaser of a transferable ticket of the right to sell
same to a person who will in good faith person-
ally use it in the prosecution of a journey. Acts
1904, p. 102.
As to assignment of choses in action, see § 3653. As to
penal provision, see P. C, § 636.
§ 2734. Unused portion to be redeemed. — It
shall be the duty of every common carrier that
shall have sold any ticket or other evidence of
the purchaser's right to travel on its line, or on
any line of which it forms a part, if the whole of
such ticket be unused, to redeem the same, pay-
ing the original purchaser thereof the actual
amount for which said ticket was sold; or, if any
part of such ticket be unused, to redeem such
unused part, paying the original purchaser there-
of at a rate which shall be equal to the difference
between the price paid for the whole ticket and
the price of a ticket between the points for which
said ticket was actually used: Provided, such
purchaser shall present such unused or partly
used ticket for redemption, within six months
after the date of its issuance, to the officer or
agent who shall be authorized or designated by
such common carrier to redeem unused or partly
used tickets; and the said officer shall, within
fifteen days after the receipt of such ticket, re-
deem the same as hereinbefore provided for.
Such redemption shall be made without cost of
exchange or other expense to the purchaser of
the ticket.
As to penal provision, see P. C, § 636.
§ 2735. Common carriers may grant passes to
former employees. — Common carriers in this
State may grant passes upon their transportation
lines to any former employee of the company
and his immediate family, who, from length of
service or having been injured in the service
of the same, has been retired from the service
but is kept upon the pay-roll of the company un-
der a system of pensioning or similar system,
such passages [passes] to be good only for intra-
state passage. Acts 1909, p. 163.
As to free passes from street railroads to policemen and
others, see § 2605. As to receiving free pass as grounds
for impeaching judge, see § 324.
§ 2735(1). One-half fare to Confederate vet-
erans.— It shall be lawful for all railroads, steam-
ship companies and common carriers within the
State of Georgia to sell tickets and transporta-
tion privileges to Confederate veterans at one-
half of the usual fare. The Public Service Com-
mission be and is hereby instructed to formulate,
prescribe and publish all suitable, needful and
[6
necessary rules to put this Act into immediat<
effect. Acts 1923, p. 902.
§ 2736. (§ 2282.) For delay.— The commoi
carrier is bound not only for the safe transpor
tation and delivery of goods, but also that the
same be done without unreasonable delay. Ac
1847, Cobb, 398.
Cross References. — See notes to § 2729. As to recovery
for delay, see 3 Cum. Dig. 349, 2 Enc. Dig. 843. As to regu>
lation by commission, see § 2634. As to damages for delay
see § 2773.
Diligence Required of Carrier. — Where a common car-
rier receives goods for transportation and is sued for delaj
in delivering them, it is error to charge that the carriei
is bound to extraordinary diligence as to the time ci
transportation. Ordinary and reasonable diligence is the
rule. Johnson v. East Tenn., etc., R. Co., 90 Ga. 810, |
S. E. 121.
Liability of Connecting Carrier. — Where a railroad com-j
pany receives goods on a contract made with the owner orj
his agent, to carry them to ' their destination beyond the
terminus of that company's line, and while in the course
of transportation they come into the hands of a connecting
railroad company by whose negligence there is unreason-1
able delay in delivering them at destination, the latter isj
liable in an action of tort for the delay, although there be
no contract relations between the two companies nor anyj
contract between the owner of the goods and the com-J
pany causing the damage. Tohnson v. East Tenn., etc.,|
R. Co., 90 Ga. 810, 17 S. E. 121.
Live Stock Carried Past Destination. — Though a shipper
of live-stock contracted with the transporting railroad thatj
it was not to be responsible for attention, feeding or water- j
ing of the stock, but that it should afford the shipper rea-
sonable facilities for those purposes, yet if the railroad
carried the stock beyond the destination fixed by the bill of
lading, and there detained them for several days before
their return, it would not be relieved from liability for
failure to care for the stock after passing the proper
destination. Bryant v. Southwestern R. Co., 68 Ga. .805.
Goods Retained for Payment of Freight. — There can be
no recovery for damage to the goods sustained without
fault or negligence of the carrier, while they were right-
fully detained to await payment as preliminary to making
a delivery to the consignee. Georgia R., etc., Co. v. Mur-
rah, 85 Ga. 343, 11 S. E- 779.
Acceptance of Portion of Goods. — Mere acceptance of a
portion of the goods shipped by railroad, on arrival at their
destination, is not a waiver of all claim for loss resulting
from delay. Georgia R. Co. v. Cole & Co., 68 Ga. 623.
Reasonable Time Implied. — Where the bills of lading are I
silent as to the time within which delivery was to be made,
the law presumes it was to be done in a reasonable time
under this section, and parol evidence is not admissible to
negative this presumption by showing that a definite ' and
specific time was agreed upon either expressly or by im-
plication. Central R. Co. v. Hasselkus, 91 Ga. 382, 17 S.
E. 838.
Evidence to Show What Is Reasonable Time. — "The law
implies a reasonable time; but aliunde evidence must be
invoked to show what is a reasonable time." Rome R.
Co. v. Sullivan, 32 Ga. 400, 405.
The declaration alleging an undertaking to deliver in a
specific time, but none to deliver in a reasonable time, evi-
dence of what would be a reasonable time was inadmissible,
and no recovery could be had under the declaration as it
stands for failure to deliver in a reasonable time. Central
R. Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838.
Question for Jury. — Whether goods shipped are delivered
by the carrier within a reasonable time under this section
is a question of fact for the jury, and depends on the
facts of each case. Columbus, etc., Ry. v. Flournoy, 75
Ga. 745.
Cited in Southern R. Co. v. Moore, 133 Ga. 806, 67 S.
E. 85.
§ 2737. (§ 2283.) Strikes as excuses to carrier.
— Where a carrier receives freight for shipment,
it is bound to forward within a reasonable time,
although its employees strike or cease to work;
but if the strike is accompanied with violence
and intimidation so as to render it unsafe to
forward the freight, the carrier is relieved as to
liability for delay in delivering the freight, if the
violence and armed resistance is of such charac-
'8]
§ 2738
RAILROADS AS COMMON CARRIERS
§ 2741
ter as could not be overcome by the carrier or
controlled by the civil authorities when called
upon by it.
See 3 Cum. Dig. 324, 2 Enc. Dig. 827.
Editor's Note. — This section is a codification of the
principles enunciated in the case of Haas v. Kansas City,
etc., R. Co., 81 Ga. 792, 794, 7 S. K. 629. The rule, though
recognized, was held not to apply in the case of Central R.
Co. v. Ga. Fruit Exchange, 91 Ga. 389, 394, 17 S. E. 904.
The evidence in that case showed that the delay in for-
warding the freight resulted because of the carrier's in-
ability to secure new men to take the place of the strikers,
and was not caused by lawless violence on the part of its
former servants.
Trend of Decisions. — "It appears, from the general trend
of the later decisions of courts, that a strike accompanied
with violence and intimidation may be treated as an act
of God, so far as it may cause delay on the part of a car-
rier in transporting goods." Southern Cotton Oil Co. v.
Louisville, etc., R. Co., 15 Ga. App. 751, 753, 84 S. E. 193.
Use of Ordinary Diligence as a Defense. — The defendants
might have a complete defense under this section, upon
proof that Jhey used only ordinary diligence to prevent
the loss, if the damage for which recovery was sought had
not been on account of injury to the subject-matter of the
shipment, but had resulted solely from the delay without
injury to the property transported. Southern Cotton Oil
Co. v. Louisville, etc., R. Co., 15 Ga. App. 751, 757, 84 S.
E. 198.
§ 2738. (§ 2284.) Stoppage in transitu.— A
stoppage in transitu by the vendor or consignor
relieves the carrier from his obligation to deliver,
nor is he thenceforward responsible for more
than ordinary diligence in the care of the goods.
As to right of stoppage in transitu by vendor, see §
4132.
§ 2739. (§ 2285.) When it exists.— The right of
stoppage in transitu exists whenever the vendor
in a sale on credit seeks to resume the possession
of goods while they are in the hands of a carrier
or middleman, in their transit to the vendee or
consignee, on his becoming insolvent. It con-
tinues until the vendee obtains actual possession
of the goods.
See 11 Enc. Dig. 906. As to protection of bona fide as-
signee of bill of lading, see § 4133.
Stated in Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14
S. E. 707.
§ 2740. (§ 2286.) Estoppel on carrier.— The
carrier can not dispute the title of the person
delivering the goods to him, by setting up ad-
verse title in himself, or a title in third persons
which is not being enforced against him.
Cross References.— See 3 Cum. Dig. 298, 327, 353, 2 Enc.
Dig. 831, 847. As to estoppels generally, see § 5736. As to
estoppel of agent to dispute principal's title, see § 3584.
Section Allows Bailee to Dispute Bailor's Title. — This
section qualifies the general rule that a bailee can not deny
the title of his bailor, and that the recognition of a ven-
dee of the bailor as the owner, puts the bailee in the same
position, as to the vendee, as he was to the original bailor,
so far as to permit the bailee to do this, if there is an out-
standing title actually being enforced against him. Pat-
ten v. Baggs, 43 Ga. 167, 173.
True Owner Must Assert Rights. — In accordance with
the provisions of this section and § 2729, a common carrier
is not liable to the true owner, in an action of conversion,
unless he has given notice or asserted his rights before de-
livery. Shellnut v. Central R. Co., 131 Ga. 404, 407, 62 S.
E. 294.
Under this section it has been held that it is no defense
to an action of trover brought against the carrier by the
true owner, that the carrier carried and delivered the
property in accordance with the shipment. Georgia R. Co.
v. Haas, 127 Ga. 187, 56 S. E. 313.
Defense of Constructive Delivery to True Owner. — A
carrier can excuse constructive delivery to a stranger only
by showing in accordance with this section that he was in
fact the true owner of the freight and asserted his claim
thereto before delivery could be made to the consignee for
whom the shipment was intended. Atlantic, etc., R. Co. v
Howard Supply Co., 125 Ga. 478, 54 S. E. 530.
Right of Action by Agent of Undisclosed Principal. — Un-
der this section, it has been held that a person who hav-
ing in charge as agent the goods of another makes with a
common carrier a contract to ship such goods, in which
the agency is not disclosed, may maintain an action in his
own name for a breach of such contract. Carter v. South-
ern R. Co., Ill Ga. 38, 36 S. E. 308.
Borrower of Article Has No Rights. — A nonsuit was
properly awarded in an action against a carrier, by a
borrower of an oil painting, for the value of same, where
it was destroyed in transit. This section did not apply.
Lockhart v. Western, etc., Railroad, 73 Ga. 472, 474.
Applied in Wallace v. Mathews, 39 Ga. 617, 630.
Stated in Central Georgia Ry. Co. v. Rabun, 21 Ga. App.
402, 405, 94 S. E. 598.
Cited in Inman & Co. v. Seaboard Air Line R. Co., 159
Fed. 960, 975.
§ 2741. (§ 2287.) Lien. — The carrier has a lien
on the goods for the freight, and may retain pos-
session until it is paid, unless this right is waived
by especial contract or actual delivery. This lien
exists only when the carrier has complied with
his contract as to transportation. He can re-
cover pro rata for the actual distance trans-
ported, when the consignee voluntarily receives
the goods at an intermediate point.
Cross References. — For full treatment, see 3 Cum. Dig.
370, 371, 2 Enc. Dig. 855, 856. As to legality of carrier's
lien, see § 3329, par. 11. As to method of disposing of un-
delivered goods, see § 2757. As to rank of carrier's lien,
see § 3360. As to lien for passenger's fare, see § 2743.
Origin of Section. — This section did not have its origin
in a statute of this state. It appears for the first time in
the Code of 1863. It has, however, all the binding effect of
an original act of the legislature, because of the adoption
by the legislature of the codes wherein it appears. Cen-
tral Railway Co. v. State, 104 Ga. 831, 31 S. E. 531, 42 L.
R. A. 518. Wilensky v. Central R. Co., 136 Ga. 889, 891,
72 S. E. 418.
Lien and Right of Personal Recourse. — Under this sec-
tion, carriers have a lien upon the goods for freight, and
may detain them for payment; whilst they, at the same
time, have recourse personally, upon the. owner of the
goods, unless the lien and the personal liability of the
owner are waived or modified, in the contract of shipment.
Brown v. Clayton, 12 Ga. 564.
Lien Lost if Contract Is Void. — The company has no
lien under this section growing out of void contracts. Hill
v. Mitchell, 25 Ga. 704.
No Lien Where Goods Are Lost. — No lien under this sec-
tion for freight could arise in favor of a carrier against
the consignee for charges upon the goods which were lost.
Robinson v. Dover, etc., R. Co., 99 Ga. 480, 482, 27 S. E.
713.
Right of Carrier to Prevent Reshipment. — Where a car-
rier has a lien under this section on the property for
freight charges, the consignor is under an obligation to
settle with the company for the freight and storage charges
before exercising the right to receive the shipment or to
direct a reshipment of the property. Penn. Steel Co. v.
Ga. R. Co., 94 Ga. 636, 21 S. E. 577; Southern R. Co. v.
Born Steel Range Co., 126 Ga. 527, 530, 126 S. E. 173.
Lien by Last Carrier Where Mistake by Initial Carrier.
— Where there was a mistake by the first carrier in direct-
ing the goods, under this section, the last carrier will have
a lien upon them for the freight earned by it, unless the
owner gave notice of the route and the lines of road over
which his goods were to be transported. Bird v. Georgia
R. Co., 72 Ga. 655, 658.
Lien as Defense to Contract Action. — A shipper can not
maintain against a carrier an action ex contractu for the
value of goods consigned to the carrier for shipment and
not delivered, when the carrier tenders the goods at desti-
nation in a damaged condition but refuses to deliver them
unless the shipper pays the usual freight charges in ac-
cordance with this section, notwithstanding the damages
to the goods amount to more than the freight charges, and
the shipper demands that the damages to the shipment be
offset against the freight bill. Wilensky v. Central R.
Co., 136 Ga. 889, 72 S. E. 418.
Lien as a Defense to Bail-Trover. — Under this section
it has been held that the consignee of goods transported
by a railway company can not, ordinarily, recover them in
an action of bail-trover against the carrier, unless he has
first paid or tendered the freight and storage charges
[679]
§ 2742
RAILROADS AS COMMON CARRIERS
§ 2751
which have accrued, according to the rates and rules of the
railroad commission. Seaboard Air-Line R. v. Shackelford,
5 Ga. App. 395, 63 S. E. 252.
§ 2742. (§ 2288.) Limit as to value of baggage.
A carrier of passengers may limit the value of
the baggage to be taken for the fare paid; in
case of loss, however, and though no extra
freight has been demanded or paid, the carrier
is responsible for the value of the baggage lost:
Provided, the same be only such articles as a
traveler for business or pleasure would carry for
his or her own use.
Cross References.— See 3 Cum. Dig. 255, 2 Enc. Dig. 792.
As to liability of carrier for baggage, see § 2731. As to
effect of notice by carrier limiting liability, see § 2726.
General Limitation Not a Contract. — Under this section
a carrier of passengers may bona fide agree with the pur-
chaser of a ticket on the value of baggage; but a mere
general limitation as to value, expressed in a printed form
of contract, though signed by the carrier and the purchaser
of the ticket, is not a bona fide agreement as to the
value of the particular baggage. Southern R. Co. v. Dink-
ins, etc., Co., 139 Ga. 332, 77 S. E. 147.
Money as Baggage. — Merchandise and money, except
money for the payment of expenses, are not embraced un-
der the term baggage as used in this section. Hutchings
6 Co. v. Western, etc., Railroad, 25 Ga. 61, 64.
Cited in Central R. Co. v. Lippman, 110 Ga. 665, 676, 36
S. E. 202.
§ 2743. (§ 2289.) On baggage. — The carrier of
passengers has a lien on the baggage, not only
for its freight, but for the passenger's fare.
Cross References. — See 2 Enc. Dig. 793. As to legality of
liens, see § 3329, par. 11. As to liability for freight on bag-
gage retained by passenger, see § 2731. As to liens for
freight, see § 2741.
Carrier Liable Where Goods Under Lien Are Lost. —
Where a railroad company retains the trunk of a passenger
under its lien as provided by this section for her fare, it
is liable for any articles that may be taken therefrom
whilst in its possession. Southwestern R. Co. v. Bently,
51 Ga. 312.
Applied in Hutchings & Co. v. Western, etc., Railroad,
25 Ga. 61, 62.
§ 2744. (§ 2290.) Fraud on carrier.— The car-
rier may require the nature and value of the
goods delivered to him to be made known, and
any fraudulent acts, saying, or concealment by
his customers will release him from liability.
For full treatment, see 3 Cum. Dig. 302, 2 Enc. Dig. 809.
Requirement by Carrier Contemplated. — This section con-
templates a requirement by the carrier, not a general duty
on the part of the shipper to disclose, without such re-
quirement. Southern Exp. Co. v. Hanaw, 134 Ga. 445, 452.
67 S. E. 944.
Value of Article May Require Voluntary Disclosure. — A
shipper tendering to a carrier for transportation an article
of an unusual value, not apparent from a casual inspec-
tion of the package as tendered, is in duty bound to dis-
close to the carrier the nature or the value of the article.
Under this section a failure so to disclose, will absolve the
carrier from liability for the loss of the property. And this
is also true, under the interstate-commerce law. South-
ern Exp. Co. v. Pope, 5 Ga. App. 689, 63 S. E. 809.
Method of Packing Articles as a Legal Fraud. — Where
the shipper resorts to any artifice, to give a box, con-
taining a valuable diamond breast-pin, a mean appearance,
thereby, to induce the carrier to think it of trifling value,
it is a legal fraud upon the carrier, which under this sec-
tion will relieve him from liability. Southern Exp. Co. v.
Everett, 37 Ga. 688.
Recovery in City Court Based on Receipt. — This section
does not apply where a shipper made out an express re-
ceipt as follows — "one package, five pieces silk, 59 pounds,
valued at . A recovery to the amount of fifty dollars,
in accordance with the terms of the receipt, was properly
granted in the city court. High Co. v. Adams Exp. Co.,
5 Ga. App. 863, 63 S. E. 1125.
Jewelry and Wearing Apparel Not Household Goods. —
Where the statement was made that bundles contained
household goods, but in fact a considerable portion of the
articles delivered were jewelry or ornaments and wearing
apparel, under this section no recovery can be had for thi
latter article if lost. Charleston, etc., R. Co. v. Moore, 8
Ga. 522, 5 S. E. 769.
Stated in Fish v. Chapman, 2 Ga. 349; Wood v. South
ern Exp. Co., 95 Ga. 451, 452, 22 S. E. 535.
Cited in Southern Exp. Co. v. Newby, 36 Ga. 635, 645
Georgia R., etc., Co. v. Keener, 93 Ga. 808, 810, 21 S. F
287; Central, etc., R. Co. v. Hall, 124 Ga. 322, 52 S. E. 679
§ 2745. (§ 2291.) Gunpowder must be marked
— All owners, agents, or others who have anj
gunpowder, more than five pounds, or dynamite
or other dangerous explosive, transported upoi
water, railroad, or otherwise, shall have thej
word "Gunpowder," "Dynamite" or other name!
of the explosive marked upon each package sol
transported, in large letters.
Cited in Simpson v. DuPont Powder Co., 143 Ga. 465,1
467, 85 S. E. 344.
§ 2746. (§ 2292.) Penalty for transporting con-
trary to law. — Gunpowder, dynamite, or other
dangerous explosive transported in violation ol
said provision shall be liable to seizure and for-
feiture by any officer who may execute a crimi-
nal warrant, under warrant for that purpose, is-
sued by any officer who may issue such first-
named warrants, one half of the same to go toi
the informer, the other half to go to the military
fund of the State, after public sale by order of
the officer issuing the warrant, or one of like
power.
Cited in Simpson v. DuPont Powder Co., 143 Ga. 465,!
467, 85 S. E. 344.
§ 2747. (§ 2293.) Freight lists, how made out.
— All freight bills or freight lists charged against
or to be collected out of any person for whom a
railroad shall carry freight, in this State, shall
contain the items of freight- charged in said bills
or freight lists, by some certain and specific de-
scription, before they shall be collectible. Acts
1855-6, p. 155.
As to duration of carrier's responsibility for goods, see
§ 2730. As to duty of carrier to deliver duplicate freight
receipts, see § 2643.
§ 2748. (§ 2294.) Owners of boats may grant
bills of lading, etc. — It shall be the duty of all
owners or agents of boats employed in the navi-
gation of the navigable waters of this State, to
grant to each and every boat, respectively, pre-
viously to its departure from the wharf or land-
ing, a certificate or bill of lading, showing its
destination, contents, and the name of its captain
or patroon and consignee, which certificate or
bill of lading shall at all times be subject to the
examination of any person requiring the same.
As to rights of drawee of a draft attached to a bill of
lading, see § 4134.
§ 2749. (§ 2295.) Failing to grant bill, etc.—
Any such owner or agent neglecting or refusing
to furnish certificate or bill of lading, and any
such captain or patroon refusing to exhibit the
same on demand as aforesaid, may be severally
indicted, and for every offense be fined in a sum
not exceeding fifty dollars, one half the penalty
in such case to go to the informer, and the other
half to the use of the county where such con-
viction takes place.
As to failure to grant or exhibit a bill of lading as a
misdemeanor, see §§ 684, 685, P. C.
§ 2750. (§ 2296.) What passengers may be re-
fused.— Carriers of passengers may refuse to
admit, or may eject from their conveyances, all
[680]
§ 2751
CONNECTING ROADS; RECEIPT AND DELIVERY
§. 2752
persons refusing to comply with reasonable reg-
ulations, or guilty of improper conduct, or of
bad, dissolute, doubtful, or suspicious characters;
so they may refuse to convey persons seeking to
interfere with their own business or interest.
Cross References.— See 3 Cum. Dig. .167, 2 Fnc. Dig. 707;
As to definition of passengers, see § 2715. As to right of
carrier to adopt reasonable rules, see § 2729. As to dam-
ages for wrongful expulsion, see §§ 4502-4504.
Regulations of Company Yield to Authority of State. —
Construing this section and §§ 2630, 2662 and 2729 in har-
mony, it is evident that the power of a common carrier to
make reasonable regulations must yield where regulations
have been made by authority of the state, unless they are
invalid. Railroad Comm. v. Louisville, etc., R. Co., 140 Ga.
817, 827, 80 S. F. 327.
Transportation of Lunatics. — Common carriers can not
absolutely refuse by virtue of this section to transport per-
sons who are insane, but may in all cases insist that they
be properly attended, safely guarded, and securely re-
strained. Owens v. Macon, etc., R. Co., 119 Ga. 230, 46 S.
E. 87.
Under this section it has been held that the right of
other travelers to a safe and comfortable passage warrants
a carrier in refusing to receive one who has been adjudged
a lunatic, and who, though in charge of attendants, is
loudly cursing and using obscene language at the time of
boarding car. Owens v. Macon, etc., R. Co., 119 Ga. 230,
46 S. F. 87.
Mistake of Conductor Immaterial. — It is no excuse for
expulsion that the conductor made a negligent mistake as
to the station indicated on the face of the ticket which the
plaintiff had exhibited and surrendered to the same con-
ductor. Georgia R., etc., Co. v. Fskew, 86 Ga. 641, 12 S.
F- 1061.
Ejection of Child.— A conductor has a right, under this
section, to eject a child for non-payment of his fare.
Georgia R., etc., Co. v. Turner, 33 Ga. App. 101, 104, 125 S.
% 598.
§ 2751. (§ 2297.) Liability of railroad com-
panies to employees. — Railroad companies are
common carriers, and liable as such. As such
companies necessarily have many employees
who can not possibly control those who should
exercise care and diligence in the running of
trains, such companies shall be liable to such
employees as to passengers, for injuries arising
from the want of such care and diligence. Acts
1855-6, p. 155.
Cross References.— For full treatment, see 3 Cum. Dig.
172, 174, 2 Fnc. Dig. 709, 710. See also 6 Cum. Dig. 159, 6
Fnc. Dig. 171. As to definition of common carriers, see §
2712. As to fellow servant rule generally, see § 3129. As
to liability of principal for injuries by co-agent, see § 3602.
As to liability of railroad for injury to person or property,
see § 2779. As to liability for death of employee, see § 2782.
As to receiver's liability to employees, see § 2788. As to
duty of carrier to passengers, see § 2714.
History of Section. — The words "necessarily have many
employees who can not possibly control those who should
exercise care and diligence in the running of trains," of this
section, do not appear in the act of 1856, but were ap-
parently codified from Judge Stephens' opinion in Cooper
v. Mullins, 30 Ga. 146. Savannah, etc., Railway v. Wil-
liams, 117 Ga. 414, 421, 43 S. F. 751.
Exception to Common-Law Rule.— This section is an ex-
ception to the common-law rule that a master is not liable
to one agent for injuries arising from the misconduct or
negligence of other agents in and about the same business.
Lamb v. Floyd, 148 Ga. 357, 361, 96 S. F. 877.
Injury Must Result from Running of Trains.— This sec-
tion does not apply except where the injury resulted from
the running of trains. McDonnell v. Central R. Co., 118
Ga. 86, 44 S. F- 840.
An injury to a railroad employee by a dangerous structure
placed too near the track is not an injury caused by neg-
ligence "in the running of trains," within the meaning of
this section. Central Trust Co. v. Fast Tennessee, etc.,
R. Co., 69 Fed. 353.
Section Not Extra-Territorial in Effect. — This section
has no extra-territorial effect, and can not apply to an
injury occurring in the State of Alabama. Southern R.
Co. v. West, 4 Ga. App. 672, 678, 62 S. F. 141.
Chartered Street Railway within Section. — A chartered
street railroad is a railroad company within the meaning
of this section. Savannah, etc., Railway v. Williams, 117
Ga. 414, 43 S. E. 751.
Fellow Servants of Train Employees May Recover. —
The employees protected by this section include all who
fall within the descriptive words, "can not possibly control
those who should exercise care and diligence in the run-
ning of trains," whether they may or may not be properly
classed as fellow- servants of the train employees. Ellington
v. Beaver Dam Co., 93 Ga. 53, 61, 19 S. F. 21.
Indirect Control Not Bar to Action. — It has been held
under this section that indirect control, by informing or
reporting to common superiors, is not a very effective re-
source against the negligence or misconduct of a co-em-
ployee invested with this direct control. Hence a train
hand can recover where injured by negligence of an engi-
neer. Georgia R., etc., Co. v. Goldwire, 56 Ga. 197, 198.
In a suit against a railroad company it made no differ-
ence whether the track-hand, was a fellow servant of the
employees on the train or not, because, under this section
all employees except those who may be able to control those
engaged in the running of trains are placed upon the foot-
ing of passengers. Atlanta, etc., R. Co. v. Ayers, 53 Ga. 12:
Ellington v. Beaver Dam Co., 93 Ga. 53, 19 S. F. 21.
Injury on Lines of Other Roads. — Where the employee of
a railroad is injured while being transported over the line9
of other railroads, to his work, under this section, he is a
passenger as to his employer. Western, etc., Railroad v.
Henderson, 6 Ga. App. 385, 386, 65 S. E. 48.
Injury to Agent by Falling into Hole. — Under this sec-
tion it has been held that where the injury resulted from
the existence of a dangerous hole in the ground held by
the company in connection with its depot at which the in-
jured party was an agent, it would be necessary for him
to be wholly blameless to authorize a recovery. Central
Railroad v. Henderson, 69 Ga. 715.
Employee of Quarry Company as a Passenger. — Where
a railroad company verbally consents for a quarry com-
pany to operate cars on its track, and the quarry company
transports over such road its employees to and from their
work, under this section, an employee of the quarry com-
pany, who has no connection with the operation of the
train, while being transported, sustains to the railroad com-
pany the relation of passenger. Gregory v. Georgia, etc.,
R. Co., 132 Ga. 587, 64 S. E. 686.
Track Laborer Protected. — A workman employed by a
railroad company to do the work of an ordinary laborer on
its track and who is injured while he is being carried on a
train of the company from the place of his work to the
camp where he stays at night, comes within the provisions
of this section. Atlanta, etc., R. Co. v. Ayers, 53 Ga. 12.
Telegraph Linesman Injured during Transportation. —
One employed by a railroad company as a telegraph lines-
man, and who is transported to and from his work free of
charge by the railroad company, and who while so travel-
ing has nothing to do with the control or operation of the
train on which he is riding, is a passenger by reason of
this section. Carswell v. Macon, etc., Co., 118 Ga. 826, 45
S. F. 695.
Pleading of Injury. — A petition brought to recover dam-
ages for personal injuries against a railroad company,
wherein the facts set forth show liability arising from the
relation of employer and employee, is sufficient to submit
to the jury and to let in proof of the allegations going to
establish such liability, although the plaintiff claims in
the petitions that under this section he was a passenger
when injured, and as such, entitled to recover. Southern
R. Co. v. West, 4 Ga. App. 672, 62 S. F. 141.
Cited in Romland v. Cannon, 35 Ga. 105, 107; Central R.
Co. v. Mitchell, 63 Ga. 173, 181; Central R. R. Co. v. Rooch,
70 Ga. 435, 438; Georgia Railroad v. Homer, 73 Ga. 251, 258;
Falvey v. Georgia Railroad, 76 Ga. 597, 599; Holland v.
Durnham Coal Co., 131 Ga. 715, 722, 63 S. E. 290; Southern
R. Co. v. Diseker, 13 Ga. App. 799, 811, 81 S. F. 269.
SECTION 7.
Connecting Roads; Receipt and Delivery of
Freight, etc.
§ 2752. (§ 2298.) When there are several. —
When there are several connecting railroads
under different companies, and the goods are in-
tended to be transported over more than one
railroad, each company shall be responsible only
to its own terminus and until delivery to the
connecting road; the last company which has
[681]
§ 2753
CONNECTING ROADS; RECEIPT AND DELIVERY
§ 2757(1)
received the goods as "in good order" shall be
responsible to the consignee for any damage,
open or concealed, done to the goods, and such
companies shall settle among themselves the
question of ultimate liability.
Editor's Note. — This section is superseded insofar as it
applies to interstate shipments. A suit for damages based
upon the provisions of this section, can not be maintained
against the last of several connecting carriers, if the loss
or damage to the shipment occurred in the course of in-
terstate transportation; for under the provisions of the
Carmack amendment, (34 Stat. 595, c. 3951, pars. 11, 12),
the initial carrier alone is liable for damages to interstate
shipments, and under the Federal regulation of interstate
commerce (which supersedes all State regulation upon the
same subject) the remedy against the initial carrier is
exclusive. See Southern R. Co. v. Bennett, 17 Ga. App.
162, 86 S. E. 418. The decision of the court of the appeals
to the contrary, in the case of Yesbwc v. Central, etc., R.
Co., 19 Ga. App. 252, 91 S. E. 274, was overruled by the
supreme court. See same case, 146 Ga. 769, 778, 92 S. E-
527. See also Davis v. Peacock, 29 Ga. App. 122, 124, 113
S. E. 697; Southern R. Co. v. Morris, 147 Ga. 729, 195 S.
E. 284; Fleshnar v. Southern R. Co., 160 Ga. 205, 127 S.
E. 768.
As stated in Davis v. Davis, supra, a common law action
of tort may still be brought against others than the initial
carrier. Section 2777 of this code, which is similar to the
provision of the Carmack amendment, controls if the action
is in contract on an intrastate shipment.
Hence, it is apparent that this section has been rendered
practically nugatory and it is therefore not deemed neces-
sary to have set out constructions from the cases decided
prior to the changes noted. For a complete treatment of
the former law, see 3 Cum. Dig. 822-839, 3 Enc. Dig. 261-
275. See also, 3 Cum. Dig. 357, 361, 2 Enc. Dig. 848.
§ 2753. (§ 2299.) Railroads must sell tickets of
connecting roads. — No railroad company having
an office or agency within the State of Georgia
shall refuse to put on sale, or refuse to sell, any
ticket of any other railroad company, with which
the same may be directly or indirectly connected,
at the price or rate fixed by the railroad commis-
sion of this State, for .passage over lines of such
connecting roads, less such amount as may be
directed to be deducted from such rate by any
one or more of said connecting lines; and it shall
be unlawful, after the sale of such ticket, to re-
fuse to issue checks for baggage over such con-
necting lines, to the extent that the baggage may
be allowed to be checked under the ordinary rules
and regulations of said companies. Acts 1890-1,
p. 155.
Cross References.— See 3 Cum. Dig. 177, 2 Enc. Dig. 713.
As to duty of carrier to issue baggage checks, see § 2732.
As to duties of railroad commissioners, see § 2630. As to
powers of commissioners over contracts between railroads,
see § 2638.
Purpose of Section.— The purpose of this section and §§
2754, 2755, is solely for the protection of railroad companies
against unlawful discriminations arising from the refusal
of a railroad company to sell tickets good for passage over
a connecting line. Wimberly v. Georgia, etc., R. Co., 5
Ga. App. 263, 63 S. E. 29.
This section is constitutional. Stephens v. Central, etc.,
R. Co., 138 Ga. 625, 75 S. E. 1041.
Statute of Limitations. — The statute of limitations ap-
plicable to a suit against a railroad company under this
section et seq, is provided by § 4370. Atlanta, etc., R. Co.
v. Coleman, 142 Ga. 94, 82 S. E. 499.
Pleading.— Where the petition neither alleged that the
defendant had been furnished tickets by a connecting car-
rier, nor that it has been tendered such tickets for sale
and had refused to put them on sale, no cause of action is
stated. Jones v. Louisville, etc., R. Co., 132 Ga. 11, 63
S. E. 627.
Evidence of Rule of Railroad Commission. — A rule of the
railroad commission was not admissfble in evidence on
the trial of a case against a railroad company for the re-
covery of a penalty alleged to have been incurred, under
this section et seq., by reason of the collection of a rate in
excess of that prescribed by the railroad commission, it
not appearing that the rule was applicable, or in effect at
the time of the trial. Central R. Co. v. Stephens, 141 Ga.
342, 80 S. E. 1044.
Cited in Bridwell v. Gate City Terminal Co., 127 Ga. 520,
524, 56 S. E. 624; Southern R. Co. v. Melton, 133 Ga. 277,
308, 65 S. E. 665.
§ 2754. (§ 2300.) Must sell to connecting roads.
— No railroad company operating or doing busi-
ness wholly or partly within this State shall re-
fuse to put on sale with the agents of any other
railroad company, wherewith it may be directly
or indirectly connected, tickets for any point
upon its lines of road, or refuse to receive such
tickets for passage over its lines, or refuse to
receive and transport baggage which may be
checked upon said tickets so sold. Any com-
pany, so placing its tickets upon sale, may de-
mand reasonable security, to secure the price of
such tickets so placed on sale, and may demand,
from time to time, such renewals of deposits, or
other security, as will protect it from any loss
from the sale of such tickets. Acts 1890-1, p. 155.
See 3 Cum. Dig. 177, 2 Enc. Dig. 713. As to duty to sell
tickets of connecting lines, see § 2753, and note thereto.
§2755. (§ 2301.) Penalty.— For every violation
of any of the provisions of the two preceding
sections, the railroad company shall be subject
to a penalty of one thousand dollars, which may
be recovered in any superior or city court of the
county in which such violation may occur. Suit
may be brought by the railroad company whose
road may be discriminated against, or by the
person offering to buy a ticket over such road;
and such penalty may be recovered by each of
said parties, and the recovery by one shall' not
be a bar to recovery by the other.
See 3 Cum. Dig. 163, 177, 2 Enc. Dig. 713.
When Liable. — No liability for the penalty provided by
this section attaches to a refusal to sell the tickets of a
connecting railroad company where, for any reason, it does
not desire its tickets sold by other than its own agents,
or where it has not expressed a desire that tickets to sta-
tions on its line shall be- sold by another connecting there-
with. Wimberly v. Georgia, etc., R. Co., 5 Ga. App. 263,
63 S. E. 29.
Applied in Stephens v. Central, etc., R. Co., 138 Ga. 625,
75 S. E. 1041.
§ 2756. (§ 2302.) Connecting railroads to re-
ceive freight tendered in cars. — All railroad
companies in this State, at the terminus or any
intermediate point, shall receive from the con-
necting road having the same gauge all cars
containing freight consigned to any point on the
road to which the same is offered, and shall trans-
port the cars to their destination with reasonable
diligence; and any failure or refusal to comply
with this requirement shall give to the consignee,
shipper, or owner of said goods and freight a
right of action against the company so refusing,
and the damages received in such action shall
not be less than ten per cent, nor more than
twenty-five per cent, of the value of the goods so
refused to be received. Acts 1882-3.
Cross References. — As to duty of carrier to receive
freight generally, see § 2729. As to liability of railroad for
failing to deliver freight to connecting carrier, see § 2655.
Section Construed with Section 2729. — This section should
be construed in connection with § 2729. Central R. Co. v.
Dixon, 141 Ga. 755, 760, 82 S. E. 37.
§ 2757. (§ 2303.) Undelivered goods may be
sold, when.— Repealed by § 2757(1).
§ 2757(1). Sale of non-perishable goods fifteen
days after notice of arrival; thirty days after no-
[ 682 ]
§ 2757(1)
CONNECTING ROADS; RECEIPT AND DELIVERY
§ 2765
tice of sale. — Where non-perishable property
which has been transported to destination by any
common carrier is refused by the consignee or
where the party entitled to receive it fails to re-
ceive it within fifteen days after the notice of
arrival shall have been sent or given to the con-
signee or to the party entitled to receive it, the
carrier may sell the same at public auction to the
highest bidder at such place as may be desig-
nated by the carrier: provided that the carrier
shall have first mailed, sent or given to the con-
signee notice that the property has been refused
or remains unclaimed as the case may be, and
that it will be subject to sale if disposition be not
arranged for, and shall have published notice
containing a general description of the property,
the name of the party to whom consigned, or, if
shipped order notify, the name of the party to be
notified, and the time and place of sale, once a
week for two successive weeks in a newspaper
of general circulation at the place of sale or
nearest place thereto. Provided further that
thirty days shall have elapsed before publication
of notice of sale after said notice that the prop-
erty was refused or remains unclaimed was
mailed, sent or given as hereinbefore provided.
Acts 1925, pp. 142, 143.
§ 2758. (§ 2304.) Live stock, etc., how sold.—
Repealed by § 2758(1).
§ 2758(1). Sale of perishable goods; notice;
live freight perishable. — Where perishable prop-
erty has been transported by any such carrier to
destination and is refused by consignee or by the
party entitled to receive it or said consignee or
party entitled to receive it shall fail to receive it
promptly, the carrier may in its discretion, to
prevent deterioration or further deterioration,
sell the same to the best advantage at private or
public sale: provided that if time serves for noti-
fication to the consignor or owner of the refusal
of the property or of the failure to receive it and
for a request for disposition of property, such
notification shall be given in such manner as the
exercise of due diligence requires before the
property is sold. Live freight is hereby declared
to be perishable property. Acts 1925, pp. 142,
143.
§ 2759. (§ 2305.) Deposit of proceeds. — Re-
pealed by § 2759(1).
§ 2759(1). Proceeds of sale. — The proceeds of
any sale under §§ 2757(1) and 2758(1) shall be
applied by the carrier to the payment of freight,
demurrage, storage and other lawful charges,
and the expense of notice, advertising, sale, and
other necessary expense, and the caring for and
maintaining the property if proper care of the
same requires special expense, and should there
be a balance, it shall be held by the carrier in
special trust to be paid to the owner of the prop-
erty or his order on demand. Acts 1925, pp. 142,
144.
§ 2760. (§ 2306.) Carrier relieved, when.— On
compliance with the provisions of the three pre-
ceding sections, such carriers shall be relieved
from all liability as to the safe-keeping of such
freight after transportation, and also as to the
proceeds of sale. Acts 1878-9, p. 177.
As to duration of carriers, responsibility for goods, see ?
2730.
§ 2761. (§ 2307.) To prevent unjust discrimina-
tion.— If any person, or any officer or agent of
any company or corporation, by payment of
money or other thing of value, solicitation, or
otherwise, induce any common carrier of freight
within this State, or any of its officers or agents,
to discriminate unjustly in his, its, or their favor,
as against any other consignor or consignee in
the transportation of property from and to
points in this State, or shall aid or abet any com-
mon carrier in any such unjust discrimination,
such person or such officer or agent of such cor-
poration or company shall be deemed guilty of
a misdemeanor; and such person, corporation, or
company shall also, together with said common
carrier, be liable jointly or severally in an action
on the case to be brought by any consignor or
consignee discriminated against, in any court of
competent jurisdiction, for all damages caused
by or resulting therefrom. Acts 1889, p. 134.
Cross References. — See 3 Cum. Dig. 164. As to power
of legislature to prevent unjust discrimination, see § 6463.
As to liability of carrier who discriminates unjustly, see §
2629. As to illegality of discriminations, see § 2657. As to
criminal liability for inducing unjust discrimination, see §
733, P. C.
Cited in Kates v. Atlanta Cab Co., 107 Ga. 636, 644, 34
S. E. 372.
§ 2762. (§ 2308.) Facilities for weighing freight
furnished by transportation company. — Every
railroad or transportation company in this State
shall furnish suitable and adequate facilities for
correctly weighing all freight offered for ship-
ment in car-load lots in this State at points
where the volume of business offered is sufficient
to warrant the expense; and if any officer or
agent of a railroad or transportation company,
or person acting for or employed by such rail-
road or transportation company, shall, by reason
of overweights or false billing, cause such rail-
road or transportation company to charge on
any shipment for more than the actual weight of
such shipment, the said railroad or transporta-
tion company shall be liable to the owner of such
shipment in damages for an amount equal to
twice the charges on the excess weight so
charged. Acts 1889, p. 134.
§ 2763. (§ 2309.) Sworn weighers to weigh
freight. — Whenever any railroad company in
this State shall weigh any cars loaded with
freight to be shipped and charged for by the car-
load, such weighing shall be done by a sworn
weigher, as provided for the weighing of cotton,
rice, and other produce. Acts 1882-3, p. 127.
As to oath to be administered to weighers, see § 1844.
§ 2764. (§ 2310.) Cars to be uncoupled.— When
such cars are weighed singly, they shall be un-
coupled at both ends and weighed one at a time.
§ 2765. (§ 2311.) Lumber cars weighed three
together. — When any railroad company shall
transport timber, lumber, or other like articles
of freight, which, from length, laps over from
one car to another, such company may cause as
may [many] as two or three such cars so loaded
to be weighed together, after uncoupling them at
both ends from other cars, and in all such instances
the aggregate weight of the freight upon said two
or three cars shall be averaged so that each of the
cars shall be charged with an equal amount of
the total weight, and the shipper be made to pay
[ 683 ]
§ 2766
CONNECTING ROADS; RECEIPT AND DELIVERY
§ 2773
freight as if each of the cars so weighed together
did actually contain an equal portion of the whole
load: Provided, that in such cases the shipper
shall not pay less than the amount of freight due
on full car-loads.
§ 2766. (§ 2312.) Penalty. — Any railroad com-
pany failing to comply with any of the provi-
sions of the three preceding sections shall be
held liable in an action for damages, to be
brought in the county where such weighing is
done, at the instance of any person aggrieved,
and the recovery shall be in a sum not less than
one hundred dollars nor more than two hundred
dollars for each offense.
§ 2767. (§ 2313.) To receive live stock.— All
common carriers of this State shall receive for
transportation all live stock of every description
and domestic animals, when tendered for ship-
ment by the consignor, without enforcing or re-
quiring said consignor to contract for a liability
less than the actual value of such animals in case
of loss or injury to the same resulting from the
negligence of said common carrier, its agents, or
employees. Common carriers shall not be re-
quired to receive for shipment animals diseased,
or physically disabled. Acts 1890-1, p. 167.
Cross References.— See 3 Cum. Dig. 360, 379, 2 Enc. Dig.
862. As to sale of undelivered livestock, see § 2759 (1).
As to lien for live stock killed by railroad, see § 2795. As
to right of railroad commissioners to regulate freight, see
§ 2634. As to right of carrier to make reasonable regula-
tions, see § 2729.
Rule Stated. — Where live stock is properly tendered for
transportation to a common carrier, it is bound, under the
common law as enlarged by this section and § 2769 to re-
ceive and transport it with due diligence, and a breach of
such duty will render the carrier liable for all proximate
damages flowing from the breach of such duty. Youmans
v. Georgia, etc., R. Co., 142 Ga. 781, 785, 83 S. E. 784.
This section and § 2768 do not apply when the shipper
voluntarily assented to all the stipulations in the contract
of shipment. Cooper v. Raleigh, etc., R. Co., 110 Ga. 659,
664, 36 S. E. 240.
Cited in Atlanta, etc., R. Co. v. Jacobs Pharmacy Co.,
135 Ga. 113, 68 S. E. 1039.
§ 2768. (§ 2314.) Contracts in violation of pre-
ceding, void. — All stipulations in contracts of
shipment hereafter made, which limit the lia-
bility of common carriers, in violation of the
preceding section, shall be void and of no effect
unless the shipper shall voluntarily assent to said
stipulations.
Cross References. — As to right of carrier to limit liability
by express contract, see § 2726. As to liability of railroad
for destruction of property, see § 2779. As to liability cf
initial carrier for property damaged during interstate ship-
ment, see § 2777.
§ 2769. (§ 2315.) Penalty for refusing to receive
stock. — When any common carrier refuses to
receive live stock and domestic animals, such
carrier shall be liable to the owner for all dam-
ages accruing from the refusal to receive said
stock or domestic animals for shipment.
§ 2770. (§ 2316.) Railroads to make prompt
settlements for overcharges. — In all cases where
any railroad or other common carrier shall de-
mand and receive, for goods shipped from with-
in or without this State to any point in this State,
any overcharge or excess of freight over and
beyond the proper or contract rate of freight,
and a demand in writing for the return or repay-
ment of such overcharge is made by the person
paying the same, said railroad or common car-
rier shall refund said overcharges within thirty
days from said demand; and if said cortimon
carrier shall fail or refuse to settle within thirty
days, or within said time to refund said over-
charge or overpayment, then said railroad or
common carrier shall be liable to said person
making the overpayment in an amount double
the amount of the overpayment, to be recovered
in any court having jurisdiction of the same; and
more than one claim for such excess may be
joined in the same suit. Acts 1889, p. 136.
Cross References. — See 3 Cum. Dig. 374. As to liability
of carrier who fails to furnish cars to transport perishable
products, see § 2775. As to penalty for failure to pay
claims, see § 2778.
Action Independent of Section Maintained. — Independently
of this section a carrier is Hable to suit by a shipper for
the recovery of an overcharge of freight which such ship-
per has paid, under protest, in order to obtain his goods
and which the carrier refused to repay on demand. Sou-
thern R. Co. v. Schlittler, 1 Ga. App. 20, 58 S. E. 59.
Pleading under Section. — Allegation that the payment
was made under protest, and that the carrier refused to
deliver him his property except upon his paying the over-
charge are unnecessary under this section. Southern R.
Co. v. Schlittler, 1 Ga. App. 20, 58 S. E. 59.
Statute of Limitations. — A suit under this section for the
recovery of a penalty incurred by a railroad company by
reason of its failure to refund an overpayment of freight
is barred by § 4370 when not brought within one year
from the time the company's liability therefor was dis-
covered. Central, etc., R. Co. v. Huson, 5 Ga. App. 529,
63 S. E. 597.
Applied in Stewart v. Comer, 100 Ga. 754, 28 S. E. 461.
Cited in Southern R. Co. v. Atlanta Stove Works, 128
Ga. 207, 57 S. E. 429.
§ 2771. (§ 2317.) Carriers must trace freight. —
When any freight that has been shipped, to be
conveyed by two or more common carriers to its
destination, where, under the contract of ship-
ment or by law, the responsibility of each or
either shall cease upon delivery to the next "in
good order," has been lost, damaged, or de-
stroyed, it shall be the duty of the initial or any
connecting carrier, upon application by the ship-
per, consignee, or their assigns, within thirty
days after application, to trace said freight
and inform said applicant, in writing, when,
where, how, and by which carrier said freight
was lost, damaged, or destroyed, and the
names of the parties and their official position, if
any, by whom the truth of facts set out in said
information can be established. Acts 1800-1,
p. 156.
Editor's Note. — The provisions of this section and sec-
tion 2772, imposing a duty on a carrier to trace lost freight,
are unconstitutional when applied to interstate shipments.
See Central, etc., R. Co. v. Murphey, 196 U. S. 194, 25 S.
Ct. 218, reversing same case, 116 Ga. 863, 43 S. E- 265, 60
E- R. A. 817.
The case of Payne v. Domestic Elect. Co., 154 Ga. 189,
113 S. E. 811 held that this section was rendered inoperative
as far as the initial carrier was concerned by the provisions
of § 2777. See Seaboard Air-Eine Ry. v. Davis, 139 Ga.
547, 77 S. E. 803; 10 C. J. 585, (§ 991). For cases decided
before the section was rendered inoperative, see 3 Cum.
Dig. 332, 334, 335, 2 Enc. Dig. 834, 835.
§ 2772. (§ 2318.) Penalty for failing to trace.—
If the carrier to which application is made shall
fail to trace said freight and give said informa-
tion, in writing, within the time prescribed, then
said carrier shall be liable for the value of the
freight lost, damaged, or destroyed, in the same
manner and to the same extent as if said loss,
damage, or destruction occurred on its line.
See editor's note to § 2771.
§ 2773. (§ 2319.) Damages for delay. — Where
[ 684 ]
§ 2774
CONNECTING ROADS; RECEIPT AND DELIVERY
§ 2777
a carrier fails to deliver goods in a reasonable
time, the measure of damages is the difference
between the market value at the time and place
they should have been delivered and the time of
actual delivery.
Cross References.— See 3 Cum. Dig. 349, 350, 2 Enc. Dig.
843. As to damages recoverable by shipper of perishable
products where cars are not furnished, see § 2775. As to
liability of carrier for unreasonable delay, see § 2736.
Editor's Note.— This section is a codification of the rul-
ings of the supreme court in Columbus, etc., Railway v.
Flournoy, 75 Ga. 745; Atlanta, etc., R. Co. v. Texas Grate
Co., 81 Ga. 602, 9 S. E. 600; East Tennessee R. Co. v. John-
son, 85 Ga. 497, 11 S. E. 809, wherein it was decided what
damages are recoverable against a common carrier for the
breach of the contract of carriage in failing to deliver goods
within a reasonable time. This measure of damages by delay
is exclusive. If the delivery of goods has been unreason-
ably delayed by the carrier, the owner must sue for the
damage prescribed in this section. He may not abandon
the goods and sue for their value. The title to the goods
in such a case remains in the owner. See Wilensky v.
Central, etc., R. Co., 136 Ga. 889, 892, 72 S. E. 418.
Full Value of Goods Recovered. — Where the evidence
shows that at the time of the acjtual delivery the goods
had been rendered valueless by the negligent delay of the
carrier, under this section, a recovery for the full value of
the goods when and where they should have been delivered
will be upheld. Southern Exp. Co. v. Briggs, 1 Ga. App.
294, 57 S. E. 1066.
The rule of damages under this section does not strictly
apply to a suit for the recovery of the value of potatoes
that have been totally destroyed. Louisville, etc., R. R. v.
Lovelace, 26 Ga. App. 286, 287, 106 S. E. 6.
Contract Contrary to Section Not Valid. — A common car-
rier can not by, special contract relieve itself from the
measure of damages under this section, where the goods
are damaged by reason of its negligence. Seaboard Air-
Line R. Co. v. Pruitt, 24 Ga. App. 748, 120 S. E. 182.
Damage to Green Hides by Loss of Weight. — An action
for damages under this section is maintainable where an
excessive loss in weight of a carload of green hides is due
to negligent delay in transportation. Southern R. Co. v.
Bloch, 18 Ga. App. 767, 90 S. E. 656.
Province of Jury. — Whether the delay is unreasonable
within the provisions of this section, is a question for the
jury. Flowers v. Ga. Northern R. Co., 32 Ga. App. 52, 122
S. E. 647; Central, etc., R. Co. v. Griner, 33 Ga. App. 705,
127 S. E. 878.
Applied in Western, etc., R. Co. v. Summerour, 139 Ga.
545, 77 S. E. 802; Southern R. Co. v. Bunch, 25 Ga. App.
45, 102 S. E- 462.
Cited in Americus Grocery Co. v. Brackett, 119 Ga.
489, 491, 46 S. E. 657.
§ 2774. Transportation of perishable products.
— It shall be the duty of the railroad companies
of this State to furnish to any grower of peaches,
apples, cantaloupes, watermelons, or other per-
ishable products, suitable icing and refrigerator
cars, or other suitable cars for the transporta-
tion of such products, whenever application
is made therefor in writing by the shipper
twenty-four hours in advance of the time such
car or cars are wanted for loading. Such appli-
cation to be filed with the nearest agent of the
railroad company to the point from which ship-
ment is to be made, and it shall state the time
and place from which shipment is desired. Acts
1907, p. 84.
See 3 Cum. Dig. 292. As to power of railroad commis-
sioners to prescribe requirements on shippers, see § 2635.
Action at Common Law. — The provisions of this section
and § 2775, do not prevent a shipper from bringing an ac-
tion at common law. Thompson v. Atlantic, etc., R. Co.,
26 Ga. App. 487, 106 S. E. 322.
Section Does Not Apply to Live Stock. — This section and
§ 2775, have no application to the matter of receiving live
stock for transportation. Youmans v. Georgia, etc., R.
Co., 142 Ga. 781, 83 S. E. 784.
§ 2775. Failure to furnish cars, liability. —
Whenever any railroad company shall fail to
furnish such icing and refrigerator cars as re-
quired in the preceding section, and the shipper
places his product in car-load lots, or, in cases of
less than car-load lots, expresses to the agent of
the railroad company his willingness to pay
charges for car-load lots, then such railroad
company shall be liable for the market value of
such product with interest thereon. The market
value to be determined by the market value of
the product less the cost of carriage and the
usual expense of selling in the market to which
the shipper intended shipping same, on the day
such product would have arrived, had the same
been carried in the usual course of transportation
on schedule time for such freight. In order to
avail himself of this rule of damage, the shipper
shall in writing notify the agent of the railroad
company of the market to which he intended to
ship his product. Payment shall be made by the
railroad company for such product within thirty
days after written claim has been filed with the
company therefor. In the event that such rail-
road company shall fail to make payment as
herein provided, or tender the correct amount
thereof, it shall be liable for an additional fixed
sum of fifty dollars for each car as liquidated
damages for failure to perform its duty in the
premises; such liquidated damages to be recov-
ered in any cause brought for the recovery of
damages on the main claim, in the event recov-
ery is had thereon.
As to definition of liquidated damages, see § 4390. As to
damages for unreasonable delay of goods, see § 2773. As
to applicability to live stock, see note to § 2774.
§ 2776. Liability of shippers for failure to ac-
cept cars. — In the event the shipper fails or
refuses to accept such car or cars, when fur-
nished under condition and as herein required,
he shall be liable to the railroad company for the
sum of ten dollars per car, and the cost of the
first or initial icing in the event the same is iced,
and should he fail or refuse to pay same within
thirty days after written demand therefor, he
shall be liable for twenty dollars instead of ten
as herein fixed, together with the cost of icing,
and judgment may be rendered for said sums by
any court having jurisdiction of the cause.
See 3 Cum. Dig. 292.
§ 2777. Damages to property in transportation.
— Any common carrier, railroad, or transporta-
tion company, receiving property for transpor-
tation between points wholly within this State,
shall issue a receipt or bill of lading therefor, and
shall be liable to the holder thereof for any loss,
damage, or injury to such property caused by it
or by any common carrier, railroad, or transpor-
tation company to which such property may be
delivered or over whose line or lines such prop-
erty may pass, and no contract, receipt, rule, or
regulation shall exempt such common carrier,
railroad, or transportation company from the
liability herein imposed: Provided, that nothing
in this section shall deprive any holder of such
receipt or bill of lading of any remedy or right
of action which he has under existing law. Acts
1906, p. 102.
Cross References.— See 3 Cum. Dig. 303, 2 Enc. Dig. 810.
As to duty of carrier to issue receipts, see § 2643. As to
effect of notice by carrier limiting liability, see § 2726. As
to liability of railroad for injury to property, see § 2779.
Editor's Note. — The provisions of § 2771, known as the
"tracing act," are rendered inoperative, so far as the
[ 685 ]
§ 2778
INJURIES BY RAILROADS
§ 2780
initial common carrier is concerned, by the provisions of
this section. See Payne v. Domestic Elect. Co., 154 Ga.
189, 113 S. E- 811.
Under this section and § 2778, it is not incumbent upon
the plaintiff, in order to recover for damages, to show rn
which of the railroads the alleged negligence occurred. See
Atlanta, etc., R. Co. v. Fairburn Marble Co., 145 Ga. 708,
89 S. E- 817.
Law Prior to Section. — Prior to the passage of what is
known as the Carmack amendment to the Hepburn inter-
state-commerce act (34 Stat. 595, 3591, § 7, pars. 11, 12),
and the enactment of this section relative to intrastate
shipments in conformity thereto, it was the rule that a
common carrier was not bound to issue a bill of lading for
transportation of freight beyond its own terminus; and if
it did so, it might stipulate, as a condition to the under-
taking, that its liability should extend only to injuries oc-
curring on its own lines. Central R. Co. v. Avant, 80 Ga.
195, 5 S. E. 78; Kavanaugh v. Southern R. Co., 120 Ga.
62, 47 S. E- 526, 1 Ann. Cas. 705; DeBow v. Vicksburg, etc.,
Ry., 21 Ga. App. 732, 734. 95 S. E. 261.
Applied in Central, etc., R. Co. v. Alford, 154 Ga. 863,
864, 115 S. E- 771.
Cited in Southern Pacific Co. v. Crenshaw, 5 Ga. App.
675, 688, 63 S. E. 865; Wellborn v. Southern R. Co., 6 Ga.
App. 151, 152, 64 S. E. 491; Lamb v. McHan, 17 Ga. App.
5, 9, 86 S. E. 252; Heath v. Sandersville R. Co.. 23 Ga.
App. 255, 256, 98 S. E- 92; Director- General of Railroads
v. Beard, 27 Ga. App. 365, 108 S. E- 310; Georgia, etc., R.
Co. v. Temples, 143 Ga. 312, 314, 85 S. E. 197.
§ 2778. Claims, when to be paid; penalty for
failure. — Ever}^ claim for loss or damage to
property, or overcharges for freight, for which
any common carrier may be liable, shall be ad-
justed and paid by such common carrier within
sixty days in cases of shipments wholly within
this State, and within ninety days in cases of
shipments between points without and points
within this State, after such claim, duly verified
by oath of the claimant or his agent, shall have
been filed with the agent of the initial carrier, or
with the agent of the carrier upon whose line the
loss or damage or overcharge actually occurred.
In the event such claim is not adjusted and paid
within the time limited, the carrier shall be liable
for interest thereon at the legal rate from the
date of the filing of the claim until the payment
thereof, and shall also be liable for a penalty of
fifty dollars for every such failure to adjust and
pay said claim, to be recovered by the party
damaged in any court of competent jurisdiction:
Provided, that unless such claimant shall in such
action recover the full amount claimed, no pen-
alty shall be recovered, but the recovery shall be
limited to the actual loss or damage or over-
charge, with interest thereon from the date of
filing said claim.
See 3 Cum. Dig. 2,77, 378, 838.
This section is constitutional. — Southern R. Co. v. Lowe,
139 Ga. 362, 77 S. E. 44.
Penalty and Claim Recovered in Same Action. — Although
recovery of the penalty provided by this section for fail-
ure of a carrier to adjust and pay a claim within the time
limit is absolutely dependent upon the establishment of a
right to recover the full amount of the claim itself, both
the damages and the penalty are recoverable in the same
action. Georgia, etc., R. Co. v. Anderson, 12 Ga. App. 117,
76 S. E. 1056.
Cited in Southern Pacific Co. v. Crenshaw, 5 Ga. App.
675, 688, 63 S. E. 865; Central, etc., R. Co. v. Butler Marble,
etc., Co., 8 Ga. App. 1, 2, 68 S. E. 775.
SECTION 8.
Injuries by Railroads.
§ 2779. (§ 2320.) Injury to person or property.
— In all cases where the person or property of an
individual may be injured, or such property de-
stroyed, by the carelessness, negligence, or im-
proper conduct of any railroad company, or
officer, agent, or employee of such company, in
or by the running of the cars or engines of the
same, such company shall be liable to pay dam-
ages for the same to any one whose property or
person may be so injured or destroyed, notwith-
standing any by-laws, rules, or regulations, or
notice which may be made, passed, or given by
such company, limiting its liability. Acts 1855-
6, p. 155.
Cross References. — See 8 Cum. Dig. 507. As to liability
of corporation for acts of officers, see § 2225. As to em-
ployees of carriers as passengers, see § 2751. As to effect
of notice by carrier limiting liability, see § 2726. As to
prohibition of contracts concerning transportation of live-
stock, see § 2768. As to liability of initial carrier for loss
during intrastate shipments, see § 2777. As to contracts of
exemption under employers 'liability act, see § 2785.
Scope of Section. — This section is not applicable to a case
in which there is no evidence of any by-laws, rules, or
regulations. Willingham v. Macon, etc., R. Co., 113 Ga.
374, 38 S. E. 843.
Limitation by Section 2729. — This section does not ap-
ply where the company interposes a regulation made in
conformity with § 2729. Central Georgia R. Co. v. Smith,
31 Ga. App. 135,. 136, 120 S. E. 30.
Ejection of Passenger Where Negligence Not Involved. —
Where an action against a carrier is founded upon the
alleged wrongful ejection of the plaintiff as a passenger,
and no negligence of the carrier or his employees is alleged,
the wrong complained of is to be regarded not as negli-
gence, but as "improper conduct," under this section, and
the law relating to diligence and negligence on the part of
carriers with reference to their passengers is not involved.
Georgia R., etc., Co. v. Turner, 33 Ga. App. 101, 125 S. E.
598.
Malice of Employee Not a Defense. — It is no defense to
an action under this section by a person who was injuied
because his horse ran away, frightened by the blowing of a
whistle by an engineer, that the latter acted malicious-ly.
Georgia R. R. v. Newsome, 60 Ga. 492, 494.
Applied in Mitchell v. Western, etc., Railroad, 30 Ga. 22.
Cited in Holmes v. Central, etc., Co., 37 Ga. 593, 595;
Cato v. Southern R. Co., 26 Ga. App. 578, 107 S. E. 98.
§ 2780. (§ 2321.) Damages by running of cars,
etc. — A railroad company shall be liable for any
damage done to persons, stock, or other prop-
erty by the running of the locomotives, or cars,
or other machinery of such company, or for
damage done by any person in the employment
and service of such company, unless the com-
pany shall make it appear that their agents have
exercised all ordinary and reasonable care and
diligence, the presumption in all cases being
against the company. Acts 1855-6, p. 155; 1873,
p. 24.
I. In General.
II. Applications of Rule.
III. Practice and Pleading.
Corss References.
For full treatment, see 3 Cum. Dig. 187, 223-226, 234, 281,
387, 2 Enc. Dig. 757, 759, 868. See also 9 Cum. Dig. 794, 817,
820, 10 Enc. Dig. 796. In addition, see 8 Cum. Dig. 521, 523,
556, 10 Cum. Dig. 591, 592.
As to burden of proof where whistle not blown before
injury, see § 2678. As to duty of carrier to receive live-
stock, see § 2767. As to liability for injury to livestock,
see § 2708. As to when an act of God is good defense, see
§ 2713. As to burden of proof in bailments, see § 3469. As
to definition of presumptions of law, see § 5735. As to
liability of carrier for death or injury to employees, see
§ 2782. As to defenses excusing carrier from liability, see
§ 2712. As to duty of carrier to passengers, see § 2714.
I. IN GENERAL.
See 9 Cum. Dig. 817, 10 Enc. Dig. 796; 3 Cum. Dig. 223-
226, 2 Enc. Dig. 757; 10 Cum. Dig. 591, 592.
Editor's Note. — Construing this section and §§ 2779 and
4426 together, a presumption of negligence is raised against
the company from the mere fact of inflicting the injury,
and on combining that presumption with the whole sum of
[686]
§ 2780
INJURIES BY RAILROADS
§ 2780
the evidence, one of four results may follow: First, if the
presumption is totally overcome, the verdict should be for
the company; secondly, whether it is overcome or not, if
the plaintiff either caused the injury by his own negligence,
or could by ordinary care have avoided it, the verdict
should still be for the company; third, if the plaintiff was
faultless, neither contributing to the injury nor omitting
ordinary care to avoid it, the verdict should be against the
company for full damages; and, fourth, if the plaintiff con-
tributed to the injury, but did not of himself cause it, and
could not have avoided it by ordinary care, the verdict
should be against the company, not for full damages, but
for the damages diminished in proportion to the default at-
tributable to the plaintiff. See Vickers v. Atlanta, etc., R.
Co., 64 Ga. 308, 309. Central Railroad v. Brinson, 64 Ga.
475.
Scope of Section. — This section does not declare that its
provisions shall not be applicable in cases where the loco-
motive, car, or other machinery in question is not being
employed in the transaction of the company's regular busi-
ness as a carrier, but does declare in general terms that
the presumption against railroad companies shall arise in
all cases where injury ensues by reason of the running of
the cars, etc. Savannah, etc., R. Co. v. Phillips, 90 Ga.
829, 835, 17 S. E. 82.
This section "imposes the burden of proving the observ-
ance of such diligence as was due, not the burden of prov-
ing that none was due." Hall v. Western, etc., R. Co.,
123 Ga. 213, 215, 51 S. E. 311.
This section states a rule of evidence, and does not dis-
pense with proper pleadings. South Ga. R. Co. v. Ryals,
123 Ga. 330, 332, 51 S. E. 428.
Basis of Presumption. — The presumption, under this sec-
tion, is based on two cognate principles; the one usually
declared by the maxim res ipsa loquitor, and the other em-
bodied in the presumption arising from the failure of a
party to produce proof in his possession. It is a pure rule
of evidence. Southern R. Co. v. Robertson, 7 Ga. App. 154,
160, 66 S. E. 535; Chenall v. Palmer Brick Co., 117 Ga. 106,
108, 43 S. E. 443.
Presumption Held Constitutional. — This section is not in
violation of amendment 14 of the constitution of the United
States, on the ground that it bridges the privileges and im-
munities of the company and puts upon it a presumption
not enforced against private citizens. Augusta, etc., R. Co.
v. Randall, 79 Ga. 304, 4 S. E. 674; Christian v. Columbus,
etc., R. Co., 79 Ga. 463, 7 S. E. 216.
Unavoidable Accidents. — A railroad company is not
liable for an unavoidable accident. This section does not
apply in such a case. Macon R. Co. v. Vaughn, 48 Ga.
465, 466.
"Running" Denned. — The word "running," as used in
-this section, does not refer so much to actual motion as
it does to the general operation of the things named here-
in. Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214,
221, 62 S. E. 1022.
Section 2714 In Pari Materia. — This section must be con-
strued in connection with § 2714, and the words "and rea-
sonable care and diligence," used in this section with ref-
erence to injuries to passengers, mean "extraordinary" care
and diligence. Douthitt v. Louisville, etc., R. Co., 136 Ga.
351, 71 S. E. 470.
Duty to a Non-Passenger.— Where the plaintiff was not
a passenger of the company, the defendant is liable for the
exercise of ordinary care only. In such a case the phrase,
"all ordinary and reasonable care and diligence," which oc-
curs in this section, means, in its last analysis, only "ordi-
nary" care. Phillips v. Georgia R., etc., Co., 27 Ga. App.
21, 107 S. E. 357.
This Section in Pari Materia with Stock Laws. —
What are known as the stock laws, embodied in §§ 2032-
35 are not in pari materia with this section and § 2781, and
do not modify or alter the rule of diligence to be observed
in the running of trains. Central R. v. Hamilton, 71 Ga.
461.
Street Railroad within Section. — A chartered street-
railroad company is a railroad company within the meaning
of this section. Cordray v. Savannah, etc., Ry., 117 Ga.
464, 43 S. E. 755.
"Agents" Includes "Employees." — This section seems to
treat employees of carriers as agents thereof in their
particular lines of duty, and this court, in construing these
different sections, has frequently treated them as agents.
Mayfield v. Savannah, etc., R. Co., 87 Ga. 374, 376, 13 S.
E. 459.
Pullman Conductor Not Railroad Employee. — A con-
ductor on a Pullman car who is employed by the Pullman
Company is not an employee within this section or pas-
senger of the railway company. Cato v. Southern R. Co.,
"26 Ga. App. 578, 107 S. E. 98.
Action by Employees Not within Section. — This section
does not apply to an action by an employee of a railroad
company to recover damages for an injury sustained by
him. Campbell v. Atlanta, etc., R. Co., 53 Ga. 488, 490;
McDonnell v. Central, etc., R. Co., 118 Ga. 86, 87, 44 S. E.
840; Hubbard v. Macon R., etc., Co., 5 Ga. App. 223, 62
S. E. 1018; Atkinson v. Swords, 11 Ga. App. 167, 74 S. E.
1093; Ocilla Southern R. Co. v. Beavers, 28 Ga. App. 178,
110 S. E. 498. See § 2751, and note thereto.
This section makes railroad companies liable for damages
done by, not to, any person in their employment. West-
ern, etc., R. Co. v. Vandiver, 85 Ga. 470, 11 S. E. 781.
Servant Jointly Sued Not within Presumption. — This
section has no application to a servant of the company, who
is sued with the company as a joint tort-feasor. Louis-
ville, etc., R. Co. v. Hames, 135 Ga. 67, 68 S. E. 805.
Passengers Alighting from Trains. — The presumption
under this section applies to injuries received by persons
alighting from trains or locomotives. Southern R. Co. v.
Parham, 10 Ga. App. 531, 539, 73 S. E- 763.
Duty to Trespassers. — A railroad company owes to a
trespasser walking upon its tracks the duty not to hurt
him wilfully, or negligently after his presence becomes
known to its servants in charge of one of its trains. Ken-
drick v. Seaboard Air-Line Ry., 121 Ga. 775, 49 S. E- 762.
Liability for Wanton Ejectment of Child Trespasser. —
Where the plaintiff's child was wantonly pushed from a
car forming a part of a moving train of the defendant and
seriously injured, though the child may have been a tres-
passer, the company was, under this section, liable for the
injuries he sustained. Smith v. Savannah, etc., R. Co.,
100 Ga. 96, 27 S. E. 725.
To Move Car Not Negligence Per Se. — This section does
not make it negligent per se merely to move a car. West-
ern, etc., R. Co. v. Roberts, 144 Ga. 250, 86 S. E. 933.
Injuries in Another State within Presumption. — The pre-
sumption, under this section, applies to suits in this state
for injuries sustained in another state. Southern R. Co. v.
Robertson, 7 Ga. App. 154, 160, 66 S. E. 535; Hill v. Chat-
tanooga R., etc., Co., 21 Ga. App. 104, 93 S. E. 1027; Cen-
tral, etc., R. Co. v. Dixon, 32 Ga. App. 686, 124 S. E.
II. APPLICATIONS OF RULE.
36'
821,
See 3 Cum. Dig. 224, 2 Enc. Dig. 759, 9 Cum. Dig
10 Enc. Dig. 796.
Section Not Applicable Where Altercation Arose be-
tween Passengers.— Where in a difficulty between two
passengers on a railroad-train one cuts the other with a
knife, and the injured passenger sues the railroad company
for damages, it is not error for the trial judge to refuse to
give this section in charge to the jury. Davis v. Georgia
R., etc., Co., 110 Ga. 305, 34 S. E. 1001.
Passenger Hurt by Jerking of Cars. — If a car contain-
ing passengers is stopped while in transit, and the passen-
gers are directed by the conductor to change to another
car which is on a track parallel to the first, and if while
they are so doing the employees of the company put out
the lights of the first car, and cause it to jerk suddenly,
resulting in injury to a passenger who is in the act of mak-
ing the change, this would be an injury resulting from the
running of the cars of the company, within the meaning of
this section. Georgia R. Co. v. Reeves, 123 Ga. 697, 51 S.
E. 610.
Projection of Rock Through Window Insufficient to Raise
Presumption.— Under this section the projection of a rock
through the window of a moving train can not be attribut-
able to the running of the train, unless some causal con-
nection is shown. Georgia R., etc., Co. v. Moore, 146 Ga.
108, 111, 90 S. E. 852.
Injury to Live Stock — The owner of a mule is prima facie
entitled to compensation in full, upon establishing the killing
and proving the value of his property. Georgia R., etc.,
Co. v. Neely, 56 Ga. 540.
Where two mares belonging to the plaintiff were, unat-
tended by any one, returning to plaintiff's home along a
public road, and, when just in the act of crossing the track
oyer a public crossing at grade, were frightened by the run-
ning of the locomotive and cars of the defendant at a
speed of about 35 or 40 miles an hour, in approaching the
crossing and passing over the same, thereby causing them
to run from the crossing, and along the track and right of
way of the company, in front of the engine, and in leaving
the track, which was on a hill some 12 or 15 feet high,
were thereby injured in the manner claimed, it was not er-
ror to charge this section. Louisville, etc., R. Co. v. Biggs,
141 Ga. 562, 81 S. E. 900.
Cotton Damaged Where Yard of Carrier Needed Repairs.
— Where a railroad company had a cotton yard which had
been planked over for public use in the removal of cotton
and damage to property has been occasioned by the negli-
[ 687 ]
§ 2780
INJURIES BY RAILROADS
§ 2780
gence of the company in not keeping such yard in repair,
the company is liable under this section unless its agents
exercised all ordinary and reasonable care and diligence to
prevent such damages. Central Railroad Co. v. Gleason,
69 Ga. 200.
Homicide of Customer by Depot Agent.— Under this sec-
tion a railroad company is liable in damages for the wrong.
fill homicide of its customer, committed by its depot agent
in his office, whilst the customer, was lawfully there for
the transaction of business with such agent appertaining
to his agency. Christian v. Columbus, etc., R. Co., 79 Ga.
460, 7 S. E. 216.
Homicide of Trespasser.— Where an action is brought for
the homicide of a trespasser, shown to have been occasioned
by the operation of defendant's cars, under this section,
the presumption of negligence does not arise against the
defendant, unless it appears that at the time of the injury
there was due from the company to the person injured a
degree of diligence to prevent such injury. Holland v.
Sparks, 92 Ga. 753, 18 S. E. 990; Pope v. Seaboard Air-
Line Ry., 21 Ga. App. 251, 94 S. E. 311.
Laborers of Contractor Injured. — A railroad company is
not liable, under this section, for injuries sustained by-
laborers in the employ of a contractor who . was working
for said company, though it may have furnished imple-
ments and materials for the performance of such work.
Central R., etc., Co. v. Grant, 46 Ga. 418.
Proof of Fire and Cause Thereof by Plaintiff.— The bur-
den is on the plaintiff to prove the fire, that it was caused
by the locomotive of the defendant, and the resulting in-
jury, before a presumption, under this section, of negligence
arises against the company. Atlantic Coast Line R. Co.
v. McRee, 11 Ga. App. 790, 791, 76 S. E. 152.
When it has been shown that the operation of the engine
set out the fire, a presumption under this section arises
against the company that it or its agents were guilty of
the acts of negligence charged in the petition and con-
nected with the injury; and the burden is shifted to it to
show the exercise of all ordinary and reasonable care and
diligence, in respect thereto. Talmadge v. Central, etc., R.
Co., 125 Ga. 400, 54 S. E. 128. Southern R. Co. v. Thomp-
son, 129 Ga. 367, 369, 58 S. E. 1044.
Fire Communicated from Box Car Used for Housing
Purposes. — Damage to property of another, caused by fire
spreading from a burning box-car belonging to a railroad
company, the car catching fire, through the carelessness of
the employees of the company, from an overheated stove
inside the car, which box-car was used by the employees for
camping or housing purposes and was located on one of
the company's side-tracks adjacent to the property dam-
aged, was damage caused by a person in the employment
and service of the railroad company, and there was a pre-
sumption of negligence against the railroad company as
provided in this section. Wilkes Lumber Co. v. Seaboard
Air-Line R. Co., 31 Ga. App. 699, 121 S. E- 694.
Failure to Heat Waiting Room. — This section does not
apply in a suit against a railroad company for personal in-
juries, where the plaintiff's sole contention was that the al-
leged injury resulted from the failure of the defendant
company to have a fire in its waiting-room during cold
weather. Louisville, etc., R. Co. v. Newsome, 30 Ga. App.
621, 118 S. E. 566.
Injury from Defective Steps. — The presumption of this
section does not arise in an action to recover damages for
alleged negligence of the defendant in maintaining steps in
its railroad station for passengers to descend to reach
trains. Flanders v. Atlanta Terminal Co., 21 Ga. App.
812, 95 S. E. 307.
Wood from Engine Injuring Person at Crossing. — Where
the plaintiff, while in his proper place on a crossing, was
injured by a stick of wood which either fell or was thrown
from the tender of a passing locomotive on the defendant's
railway, under this section, a presumption of negligence
arose in favor of the plaintiff. Savannah, etc., R. Co. v:
Slater, 92 Ga. 391, 17 S. E- 350.
In a suit against a railroad company to recover damages
for a personal injury, where the plaintiff purchased a
ticket, and then went to a restaurant for supper and on
his return to the depot, while walking upon a public street
over which the public were accustomed to travel in
approaching the depot, and as he was passing the tender
of the engine attached to the train which he intended to
board, a piece of wood fell from the tender striking the
plaintiff on the head, it was not erroneous to charge this
section. Georgia Coast, etc., R. Co. v. Jones, 140 Ga. 132,
78 S. E. 765.
Violation of Municipal Ordinance Regulating Speed of
Cars. — When in an action to recover damages from a rail-
road company for injuries to person and property, oc-
casioned by the running and operation of a train of cars
over a street-crossing in a city, it was conclusively shown
that the speed at which the train was being run was higher
than that prescribed by a valid municipal ordinance, and
that no effort was made to so check the speed in passing
over the crossing as to be able to stop, if necessary to pre-t
vent injury to one attempting to cross, under this section,
the company was, relatively to such person, negligent as a
matter of law. Central, etc., R. Co. v. Tribble, 112 Ga.
863, 38 S. E. 356; Brunswick, etc., Railroad v. Hoover, 74
Ga. 426.
Positive Evidence Will Overcome Presumption. — Where
only a prima facie presumption, under this section, arises
that certain additional facts exist in favor of one party, and
positive, unequivocal, and uncontradicted testimony is in-
troduced in behalf of the other party, emphatically denying
the facts thus presumed, such presumption is legally re-
butted and can not prevail against such testimony. At-
lantic Coast Line R. Co. v. Drake, 21 Ga. App. 81, 94 S.
E. 65.
Presumption Rebutted Where Injury Could Not Be
Avoided. — The presumption of this section can not with-
stand positive evidence that the company's employees exer-
cised ordinary diligence, both as regards maintaining a
lookout for stock, and endeavoring to avoid injury to the
same when discovered. South Carolina R. Co. v. Powell,
108 Ga. 437, 33 S. E. 994; Georgia Southern, etc., R. Co. v.
Sanders, 111 Ga. 128, 36 S. E. 458; Seaboard Air-Line R. v.
Walthour, 117 Ga. 427, 43 S. E. 77.
Presumption Not Rebutted by Proof of Probable Cause
of Injury. — Under this section it has been held that where
the company showed, from the appearance of the car only,
that the train on which the horses were brought to the
place where the owner found them, had not been derailed,
and showed how the injury might have happened, but not
how it actually happened, and none of the employees in
charge of the train were introduced as witnesses on the
trial, to account for the injury, a verdict finding against
the company was sustained by the evidence. Columbus,
etc., R. Co. v. Kennedy, 78 Ga. 646, 647, 3 S. E. 267.
Malice of Engineer as a Defense. — The presumption fixed
by this section against a railroad, is not rebutted by proof
that the engineer, whose negligence, in the use of the en-
gine and whistle attached thereto, caused the injury, was
prompted by personal malice and revenge towards -the
plaintiff. Georgia R. Co. v. Newsome, 60 Ga. 492.
Homicide by Agent to Resent Insult. — Under this section
a railroad company is not liable in damages for a homicide
committed by an employee, where the homicide was not
committed in the prosecution of its business and within the
scope of his employment, but was his personal act in re-
senting a real or fancied insult. Louisville, etc., R. Co. v.
Hudson, 10 Ga. App. 169, 73 S. E. 30.
III. PRACTICE AND PLEADING.
See 3 Cum. Dig. 281, 2 Enc. Dig. 866, 868; 10 Cum. Dig.
591, 592.
Action in Justice's Court. — Where the suit instituted by
the plaintiff is in a justice's court and is based upon . a
summons, according to the practice in such courts, and
there is no petition alleging negligence, the presumption
under this section of negligence will apply to, and there-
fore authorize a finding upon, any theory of negligence de-
ducible from the facts appearing from the evidence ad-
duced upon the trial, and the plaintiff will be entitled to all
legitimate inferences consistent with the facts that will
authorize a finding that the defendant was negligent.
Georgia Southern, etc., R. Co. v. Converse, 29 Ga. App.
411, 116 S. E. 20.
Specific Acts of Negligence Must Be Alleged — Under this
section, it has been held that a plaintiff suing a railroad
company for damages to person or property by the run-
ning of its trains must set out specifically in his petition the
acts of negligence upon which he relies for a recovery, and
a petition which is deficient in this respect is subject to
a special demurrer. Blackstone v. Central, etc., R. Co.,
105 Ga. 380, 31 S. E. 90; Russell v. Central, etc., R. Co.,
119 Ga. 705, 46 S. E. 858; Seaboard R. Co. v. Pierce, 120
Ga. 230, 47 S. E. 581; Central, etc., R. Co. v. Weathers, 120
Ga. 475, 47 S. E. 956.
Same — Ownership of Stock. — Where suit was brought for
the negligent killing of stock by a railroad company, and
the declaration failed to allege the ownership of such
stock, it was subject to special demurrer on that ground.
South Ga. R. Co. v. Ryals, 123 Ga. 330, 51 S. E. 428.
Preponderance of Evidence. — It has been held under this
section that it is not incumbent upon the plaintiff, in a
case where the injury complained of is caused by the run-
ning of the defendant's cars, to prove the allegation of
negligence of the defendant by a preponderance of the evi-
dence. Killian v. Georgia R., etc.,- Co., 97 Ga. 727, 730, 25 S.
[688]
2780
INJURIES BY RAILROADS
§ 2781
5. 384; Murphy v. Georgia R., etc., Co., 146 Ga. 297, 298, 91
5. E. 108.
Evidence of Alteration of Curve. — Upon the trial of a
;uit, under this section, against a street railroad company
or an injury sustained by careless driving over a sharp
•urve and sudden elevation, it was competent to show that
he defendant had altered the curve since the accident.
Augusta, etc., R. Co. v. Renz, 55 Ga. 127.
Province of Jury. — In cases where the presumption of
legligence ;irises under this section against a railroad
:ompany, it is generally a question for the jury, and not
or the court, as to whether or not by the proof of certain
pecific facts this presumption is removed. Savannah, etc.,
t. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82.
Fright of Horse Aggravated by Street Car. — Where a
letition alleges that, after seeing the frightened condition
if the horse, the motorman failed to stop his car, thereby
.ggravating the fright of the horse and causing him to run
way, no presumption of negligence arose, under this sec-
ion, against the defendant upon proof of the injury. At-
anta R., etc., Co. v. Johnson, 120 Ga. 908, 48 S. E. 389.
Agents of Company as Witnesses. — To rebut the pre-
umption of this section against a railroad company where
, mule was killed by an engine, it is better that the agents
if the company stationed on the engine should be all called.
Jast Tennessee, etc. v. Culler, 75 Ga. 704.
Non-Suit Improperly Awarded. — Where negligence is pre-
umed from some of the facts proved, and where there is
cope for legitimate reasoning by the jury, as to whether
he presumption under this section is, or is not, rebutted
iy other facts :n the plaintiff's evidence, a non-suit should
tot be awarded. Hankerson v. Southwestern R. Co., 59 Ga.
93.
Refusal of Supreme Court to Set Verdict Aside. — Where
he evidence as to the diligence, used by the employees of
railroad was conflicting, the presumption under this sec-
ion of negligence being in all cases against the company,
.nd the jury find for the plaintiff and the presiding judge
s satisfied with the verdict, this court will not interfere.
Georgia R., etc., Co. v. Cox, 64 Ga. 620.
Duty to Charge Section Without Request. — Upon proof
if the injury this section ought to have been given in
he charge without any request to that effect. Killian v.
Georgia R., etc., Co., 97 Ga. 727, 25 S. E. 384.
Charge Improperly Construing Section. — Where, in an
iction for killing a horse, the court, after charging this
ection, added, "that is, a full measure of care and dili-
fence all that could be expected," such charge was error.
Western, etc., Railroad v. King, 70 Ga. 261.
A charge of the court requiring of a railroad company
ill possible care to avoid killing live stock by the running
if its trains, is contrary to this section. East Tennessee,
:tc, R. Co. v. Daniel, 91 Ga. 768, 18 S. E. 22.
In an action to recover damages for personal injuries sus-
ained by a passenger in alighting from a moving car, it
vas error in the presiding judge to read to the jury this
lection, when in immediate connection therewith the judge
nstructs the jury that the duty of carriers to passengers
s that of extraordinary diligence, and that the burden is
>n the carrier to show such diligence, when the injury has
>een made to appear. Sanders v. Southern R. Co., 107 Ga.
132, 32 S. E. 840.
Charge of Presumption Where Misconduct Proved. —
Where the plaintiff, a passenger, ejected by the defendant
:arrier's conductor, the court committed no error in giv-
ng in charge the principle contained in this section, with
"espect to the presumption which arises against a railroad
.•ompany under certain circumstances. This section, may
De given in charge not only where the action is founded
ipon negligence, but also where it is founded upon "mis-
xmduct" on the part of the carrier's servants. Georgia R.,
fcc., Co. v. Turner, 33 Ga. App. 101, 125 S. E. 598.
Section Charged Where Sparks from Engine Set Fire.
—This section was properly charged in an action brought
igainst a railroad company for damages alleged to have
been caused by fire arising from sparks emitted from one
af its locomotives. Atlantic, etc., R. Co. v. Sumner, 134
Ga. 673, 68 S. E. 593.
Charge of Section Where Passenger on Platform Injured.
—Where suit was brought for an injury resulting to a
passenger on a railroad train by being thrown therefrom
while riding upon a platform of a car, because it was
claimed that the car was so crowded that he could not ob-
tain entrance to it, and where it was contended that the
company was negligent in not providing room for the pas-
senger, thus causing the injury, there was no error in
giving in charge the principle embodied in this section.
Southern R. Co. v. Nappier, 138 Ga. 31, 74 S. E. 778.
§ 2781. (§ 2322.) Consent or negligence. — No
person shall recover damage from a railroad
company for injury to himself or his property,
where the same is done by his consent, or is
caused by his own negligence. If the com-
plainant and the agents of the company are both
at fault, the former may recover, but the dam-
ages shall be diminished by the jury in propor-
tion to the amount of default attributed to him.
Cross References. — For full treatment, see 3 Cum. Dig.
705-716, 3 Enc. Dig. 156-162. See also 3 Cum. Dig. 225, 350,
2 Enc. Dig. 754; 4 Cum. Dig. 95, 97, 3 Enc. Dig. 541. In
addition, see 9 Cum. Dig. 794, 813, 10 Cum. Dig. 585, 598.
As to degree of care required of bailee, see § 3470. As to
duty of plaintiff to avoid injury, generally, see § 4426. As
to consent as a defense, see § 4490. As to effect of plea of
justification, see § 4488. As to contributory negligence of
injured employee, see § 2783. As to definition of due care
by child, see § 3474. As to doctrine of imputed negligence,
see § 3475.
In General.— This section means that where both parties
are at fault, and the alleged injury is the fault of both,
and if the jury should find from the evidence that the plain-
tiff, by the exercise of ordinary care and diligence, could
not have avoided the alleged injury caused or occasioned by
the defendant's negligence, then, though the plaintiff may
have been to some extent negligent, the plaintiff would be
entitled to damages, but the amount shall be diminished
by the jury in proportion to the amount of fault attribut-
able to the plaintiff; but the plaintiff can not recover if
guilty of negligence contributing to the injury, unless it
is made to appear that the negligence of the defendant
preponderated in causing the injury. Lamb v. McAfee, 18
Ga. App. 584, 90 S. E. 103.
Under this section and § 4426, where a person who is
killed by the running of a railroad-train could by the ex-
ercise of ordinary care for his own safety have avoided the
consequences to himself of the defendant's negligence after
it came into existence and was known to him or could have
been discovered by the exercise of ordinary care, an action
for damages against the railroad company on account of
negligence will not lie. Georgia R. Co. v. Tapley, 145 Ga.
792, 89 S. E. 841.
This Section Not Identical with Section 4426.— The de
fence provided for in § 4426 is not identical with that un-
der this section; and while the doctrine of contributory
negligence applies to both sections, yet the particular act
of negligence in proof must be such as contributes to the
thing that caused the injury sued for. Central R. Co. v.
Harris, 76 Ga. 501.
This Section and Section 4426 Are in Pari Materia. —
Southern R. Co. v. Nichols, 135 Ga. 11, 68 S. E. 789;
Wrightsville. etc., R. Co. v. Floyd, 17 Ga. App. 461, 87
S. E. 688.
This section treats of an active plaintiff who himself
caused the injury. Section 4426 deals with a plaintiff who
may have been passive, and may therefore not have
caused, but might Tiave avoided the injury. Neither sec-
tion is exhaustive of defenses which may be made. But
relating, as they do, to different conditions, the two sec-
tions should not be charged in immediate connection one
with the other, but separate and apart. Macon, etc., R.
Co. v. Anderson, 121 Ga. 666, 49 S. E. 791.
Plaintiff's Duty Before Negligence Is Apparent. — Failure
to exercise ordinary care on the part of the person in-
jured, before the negligence complained of is apparent, or
should have been reasonably apprehended, will not pre-
clude a recovery, but under this section will authorize the
jury to diminish the damages in proportion to the fault
attributable to the person injured. Western, etc., R. Co. v.
Ferguson, 113 Ga. 708, 39 S. E. 306.
Because the duty to avoid negligence does not arise un-
til after the negligence "is existing, and is either ap-
parent, or the circumstances are such that an ordinarily
prudent person would have reason to apprehend its ex-
istence," the doctrine that recovery can not be had for a
homicide if the deceased could by the exercise of ordinary
care have avoided the consequences of the defendant's negli-
gence, has no application to a case where the negligence
came into existence at a time when the deceased was in
such a condition that he could not have done anything to
avoid the consequences of the negligence. Central of
Georgia Ry. Co. v. Pelfrv, 11 Ga. App. 119, 122, 74 S. E.
854.
Comparative Negligence Law.— This section embodies the
law of comparative negligence and consequent diminution
of damages. Central of Georgia Ry. Co. v. Rountree, 10
Ga. App. 696, 73 S. E. 1095.
Comparative Negligence Not Common Law. — So much ot
[ 689 ]
§ 2781
INJURIES BY RAILROADS
§ 2781
this section, as relates to comparative negligence and di-
minution of damages is not a common-law doctrine. Sea-
board Air- Line Ry. v. Andrews, 140 Ga. 254, 78 S. E. 925.
Accidents Not within Section. — Where the injury re-
ceived by the plaintiff resulted from a mere accident, this
section does not apply. Murphy v. Atlanta, etc., R. Cc,
89 Ga. 832, 15 S. E. 774.
"Consent" Defined.— Under this section, one who know-
ingly and voluntarily takes a risk of injury to his person
and property, the danger of which is so obvious that the
act of taking such risk, in and of itself, amounts to a fail-
ure to exercise ordinary care and diligence for his own
safety and that of his property, can not hold another liable
for damages from injuries thus occasioned. Southern R.
Co. v. Hogan, 131 Ga. 157, 62 S. E- 64; Georgia, etc., R.
Co. v. Greer, 7 Ga. App. 292, 298, 66 S. E. 961.
Same — Injury Resulting from Mis-Judgment of Plain-
tiff.—Where the plaintiff, having previously seen the mov-
ing train approaching the crossing, miscalculated the time
in which he could safely cross, and placed himself on the
track immediately in front of the moving locomotive, was
caught by the pilot and injured, such injury is directly at-
tributable to the negligence and want of ordinary care on
the part of the plaintiff, which bar his right of recovery
under this section. Southern R. Co. v. Blake, 101 Ga. 217,
29 S. E- 288.
Same— Horse Improperly Loaded on Car. — This section
is a defense to an action by the owner of a horse that was
injured because of the improper manner used by the plain-
tiff in loading the animal on a car. Southern R. Co. v.
Bivins, 3 Ga. App. 552, 60 S. E. 289; Cometa County v.
Central Georgia R. Co., 4 Ga. App. 94, 60 S. E. 1018.
Same— Non Passenger on Train in Search for Family. —
Where defendant's passenger train was temporarily stopped
some distance from the depot for receiving and delivering
passengers until two freight trains in advance of it could
be moved out of the way, and the plaintiff boarded such
train in search of his wife and child, who were thereon as
passengers, and in attempting to move from one car to
another, by passing around an intervening car, stepped off
the platform into a culvert fifteen or twenty feet deep,
which he could not see on account of the darkness of the
night, thereby sustaining serious personal injury, under
this section the company was not liable therefor, even
though the lights in some of the cars had been blown out
by drunken and disorderly men. Stiles v. Atlanta & West
Point Railroad, 65 Ga. 370.
Care by Person in an Emergency.— Under this section,
the duty of person for his own safety, in an emergency, is
not to be measured by the ordinary standard, but that al-
lowance is to be made for the state of his emotions. At-
lanta, etc., R. Co. v. Roberts, 116 Ga. 505, 508, 42 S. E.
753.
Duty to Persons Allowed to Walk on Track.— It has beer
held under this section that the use of the track by pedes-
trains with the company's knowledge, does not bind it to
the exercise of extraordinary cart and diligence to protect
them. If such use amounts to a license, it must be on
condition that the pedestrian shall exercise ordinary care
and diligence to avoid injury. White v. Central R., etc.,
Co., 83 Ga. 595, 10 S. E. 273. See also, Central Ry. Co. v.
Pelfry, 11 Ga. App. 119, 74 S. E. 854.
It has been held under this section that a person who
declares that he was upon a railroad track by its consent
and was injured by the running of the cars caused by un-
usual loading of the same — the timbers projecting seven
feet beyond the track and he standing that distance from
it at night, supposing himself safe at such a distance from
the rail — several other trains properly loaded having passed
without injury 1o him — has the right to go to the jury
upon the question of negligence. Baston v. Georgia Rail-
road, 60 Ga. 339.
Defenses Where Cow Killed by Train. — Where it was
proved that a cow was killed by a railroad train, this sec-
tion imposed on the company the burden of showing that
it was in the exercise of all ordinary and reasonable care
and diligence, or that the damage was caused solely by the
negligence of the owner of the cow, or to diminish dam-
ages, that both were at fault. Georgia Railroad v. Bird,
76 Ga. 13.
Failure of Carrier to Keep Train Under Control. — This
-section is no defense if the company, after- omitting to warn
the traveler of the impending danger, follows up its neg-
ligence by a total failure to observe the additional duty
imposed upon it of having its train under perfect control,
and itself inflicts the injuries by negligently running hint
down with its locomotive. Comer v. Barfield, 102 Ga. 485,
489, 31 S. E. 89.
Negligent Homicide within Section. — In a suit for a neg-
ligent homicide, the failure to charge this section is error.;
Georgia R. Co. v. Prior, 142 Ga. 536, 83 S. E. 117.
Injury to Employee of Patron While Unloading Car.
It has been held under this section that a railway company
is not liable for personal injuries received by an employee
of one of its patrons in moving a loaded freight-car which
had been delivered and left safely standing on a side-trackj
for the purpose of being unloaded, even though such in-
juries may have been occasioned because of a defect in all
brake attached to the car and the company was charge- jj
able with notice of its condition, if the person was injured!
in consequence of his having voluntarily placed himself in I
a perilous situation. Southern R. Co. v. Morrison, 105 Ga.M
543, 31 S. E. 564.
Recovery by Guest of Driver of Team. — If the negligence II
of the defendant and the driver of a mule hitched to all
buggy concurred in causing the injuries, under this sec-B
tion, the plaintiff could recover, provided he could not byH
the exercise of ordinary care have avoided being injured; !{
and his damages should not be diminished on account of J
the driver's negligence, even if such negligence amounted 1
to the want of ordinary care on the driver's part, as thejl
negligence of the driver could not be imputed to the plain- 81
tiff a guest of the driver. Central, etc., R. Co. v. Reid.jl
23 Ga. App. 694, 696, 99 S. E. 235.
Collision of Automobile and Train. — This section wasl
properly charged in an action against a railroad company jl
for damages from injuries to an automobile and to the per- |j
son who was operating it, where it appeared that the in-
jury occurred on a public crossing, and that at the time
of the injury the plaintiff was driving his car in violation
of the statute in regard to running automobiles over rail-
road crossings, and that the defendant was violating the
statute and a city ordinance in regard to running trains
over public crossings within the city. Louisville, etc., R.
Co. v. Stafford, 146 Ga. 206, 91 S. E. 29.
Collision of Vehicle and Car. — It has been held under this
section that in an action by a traveler upon a highway,
against a railway company, for damages resulting from
collision between a car of the company and the vehicle in
which the traveler was riding, it is error to charge the
jury that "the plaintiff's contributory negligence in such a
case defeats recovery, and your verdict must be for the
defendant." Thomas v. Gainesville Elect. R. Co., 124 Ga.
748, 52 S. E. 801; Savannah Elect. Co. v. Crawford, 130 Ga.
421, 60 S. E. 1056.
Violation of Stock Law as Evidence. — It has been under
this section that the existence of a stock law in any
locality is a fact which the jury may consider, in ascer-
taining the amount of care and diligence exercised by each
of the parties to the transaction, and in apportioning the
extent of the liability of the company, if any. Central, etc.,
Railroad v. Hamilton, 71 Ga. 461.
Right of Jury to Consider Youth of Plaintiff.— Under this
section the jury had the right to weigh all the facts, to
consider the youth of the injured party, the circumstances
surrounding him and urging his return to his home with
his young companions on the train where the injury oc-
curred, the short time allowed for decision and action, and
the invitation given by an employee of the road, dressed in ]
its uniform, and who, though humble, was in this action
the representative of the company, and one for whose ac-
tion it was responsible. Western, etc., Railroad v. Wil-
son, 71 Ga. 22.
This Section and Section 4426 to Be Charged Separately.
— The different rules contained in this section and § 4426
should not be so stated as to mislead the jury into be-
lieving that they would be authorized to find that the
plaintiff, in an action for personal injuries against a rail-
road company, can recover when, by the use of ordinary
care, he could have avoided the consequences to himself
caused by the defendant's negligence. Railroad Co. v.
Gornto, 129 Ga. 204, 210, 58 S. E. 769.
In a suit for damages alleged to have been occasioned by
the negligence of a defendant railroad company, a charge
"that the plaintiff must further show that his injury, if
any, was not caused by his own negligence and that he
could not have avoided the injury by the exercise of ordi-
nary care and diligence," is not open to the criticism that
it confused and blended § 4426, and this section to the pre-
judice of the defendant. Southern R. Co. v. Wallis, 133 Ga.
553, 66 S. E. 370.
Defense — Burden of Proof. — In order to sustain the de-
fense, the burden of proof is upon the defendant to make
it affirmatively appear that the injury is the result of the
negligence of the plaintiff's husband. Railway Co. v. North,
129 Ga. 106, 107, 58 S. E. 647.
Ordinary Care Necessary. — "Where the plaintiff by the
exercise of ordinary care could have avoided the conse-
quences to himself caused by the defendant's negligence,
[ 690]
2782
INJURIES BY RAILROADS
§ 2782
: is not entitled to recover." L,owe v. Payne, 156 Ga. 312,
4, 118 S. E. 924.
In a suit brought by an employee of a common carnei
' railroad against the company, for personal injuries, he
,n not recover if his injuries were caused by his own
.relessness amounting to a failure to exercise ordinary
re; or if by the exercise of ordinary care he could have
voided the consequences of the defendant's negligence.
auisville, etc., R. Co. v. Dunn, 21 Ga. App. 379, 94 S. E-
1.
Where the evidence shows reckless conduct on the part
the decedent, under this section the railroad company is
>t liable in damages for her death, unless it was guilty of
anton or criminal negligence. Hopkins v. Southern R.
d., 110 Ga. 85, 89, 35 S. E. 307.
Request to Charge Express Words of Section. — The
.urt having instructed the jury that the plaintiff could not
cover if the decedent could have avoided his death by the
:ercise of ordinary care or if his negligence was the proxi-
ate cause of his death, and having also fully instructed
e jury upon the law of comparative negligence, there was
) error, especially in the absence of a written request, in
e failure of the court to give in charge the express terms
this section. Georgia, etc., Co. v. Wallis, 29 Ga. App.
6, 116 S. E. 883; Southern R. Co. v. Weatherby, 20 Ga.
pp. 399, 93 S. E. 31.
Charge of Section Held Harmless. — While there was no
ridence whatsoever that the deceased child consented to
.e tort, it is not reversible error that the court charged,
substance, the entire first sentence of this section, re-
rring to "negligence" and "consent" on the part of the
:ison injured, the part of the charge as to negligence be-
g applicable. The giving of the inapplicable part as to
insent was not prejudicial. Sarman v. Seaboard Air-
ine R. Co., 33 Ga. App. 315, 125 S. E. 891.
Equal Duty to Adults and Minors. — Under this section,
railroad company is not liable to either a grown person or
minor for damages' to him caused by his own negligence,
■ where he could have avoided the consequences of the
;fendant's negligence by the use of due care. Lender v.
rown, 137 Ga. 352, 73 S. E. 734.
Injury to Passenger Boarding Moving Train. — Where a
tssenger waited until a train began to move, and was in-
tred in an attempt to get on board by seizing the rail-
g of the car, under this section, he can not recover dam-
jes on the ground that the railroad company was negii-
;nt in allowing trucks to be placed near the track,
outhern R. Co. v. Nichols, 135 Ga. 11, 68 S. E. 789.
Person Alighting from Train Knowing It Will Not Stop.
A person consents under this section to any injury he sus-
lins when attempting to get off from a moving train at
station at which he knows that the train will not stop,
eorgia, etc., R. Co. v. Greer, 7 Ga. App. 292, 66 S. E. 691.
Applied in Macon, etc., R. Co. v. Davis, 18 Ga. 679, 680;
mericus, etc., R. Co. v. Euckie, 87 Ga. 6, 13 S. E. 105;
runswick, etc., R. Co. v. Gibson, 97 Ga. 489, 497, 25 S. E.
54; Central R. Co. v. McKenney, 116 Ga. 13, 17, 42 S. E.
29; Western, etc., R. Co. v. Burnham, 123 Ga. 28, 32, 50
. E. 984; Macon, etc., R. Co. v. Parker, 124 Ga. 471, 56 S.
;. 616; Central R. Co. v. Brown, 138 Ga. 107, 111, 74 S. E-
59; Georgia Southern, etc., R. Co. v. Thornton, 144 Ga.
?1, 482, 87 S. E. ?88; Charleston, etc., R. Co. v. Camp. 3
ta. App. 232, 234, 59 S. E. 710; Hines v. Malone, 25 Ga.
.pp. 781, 782, 105 S. E. 37; Atlantic, etc., R. v. Fulfoid, 33
la. App. 631, 127 S. E. 812.
§ 2782. Injury by coemployee. — Every com-
mon carrier by railroad shall be liable in
amages to any person suffering injury while he
5 employed by such carrier, or, in case of death
f such employee, to his or her personal repre-
entative, for the benefit of the surviving widow
r husband, or child, or children of such em-
loyee, and if none, then of such employee's
'arents, and if none, then of the next of kin de-
'endent upon such emplo}^ee, for such injury or
leath resulting in whole or in part from the
tegligence of any of the officers, agents, or em-
iloyees of such carrier, or by reason of any
lefects or insufficiency, due to its negligence, in
ts cars, engines, appliances, machinery, track,
oad-bed, works, boats, wharves, or other equip-
nent; Provided, nevertheless, no recovery shall
>e had hereunder if the person killed or injured
brought about his death or injury by his own
carelessness amounting to a failure to exercise
ordinary care; or if he, by the exercise of ordi-
nary care, could have avoided the consequences
of the defendant's negligence. The measure of
damage in case the injury results in death of the
employee shall be that prescribed in sections
4424 and 4425: Provided, that the party or
parties for whose benefit recovery may be had
under this and the five succeeding sections may
sue and recover in their own name or names in
the manner prescribed by section 4424, in case
no administrator or executor has been appointed
at the time suit is filed. In case death results
from injury to the employee, the employer shall
be liable unless it makes it appear that it, its
agents, and employees have exercised all ordinary
and reasonable care and diligence, the presump-
tion being in all cases against the employer, if
death does not result from the injury, the pre-
sumption of negligence shall be and remain as
now provided by law in case of injury received
by an employee in the service of a railroad com-
pany. Acts 1909, p. 160.
Cross References.— For full treatment, see 8 Cum. Dig.
441, 487, 488, 521-524, 9 Enc. Dig. 271, 294. See also 6 Cum.
Dig. 159, 166, 6 Enc. Dig. 171, 176. In addition, see 4 Cum.
Dig. 629, 7 Cum. Dig. 428. As to injured employees as pas-
sengers, see § 2751. As to receivers liability to injured rail-
road employees, see § 2788. As to liability of master to
servant, generally, see §§ 3129-3131. As to liability of prin-
cipal where agent injured by co-agent, see § 3602. As to
general death statute, see § 4424. As to duty of plaintiff to
avoid injury, see § 4426. As to liability of railroad for in-
juries to person or property, see § 2780.
Editor's Note. — Before the adoption of the act approved
August 16, 1909 (Acts 1909, p. 160, codified in this section
et seq.), common carriers by railroad were liable for injuries
to their employees resulting from negligence attributable
to the employer where the injured employee was without
fault. See editor's note to § 4422. This law was amended by
the act above mentioned, and since the amendment it is no
longer essential that the injured employee must have been
without fault, but he may recover provided the injury was
not brought about "by his own carelessness, amounting to
a failure to exercise ordinary care," or if he could not have
avoided the consequences of defendant's negligence "by the
exercise of ordinary care." But in cases where the negligence
of the employee in some degree, less than indicated above,
contributed to the injury, he may recover diminished dam-
ages. See Central, etc., R. Co. v. Allen, 140 Ga. 333, 335, 78 S.
E. 1052.
This act is not superseded by the Workmen's Compensa-
tion Act. See §§ 3154 (9), 3154 (15) and note; see also edi-
tor's note under § 3154 (1).
In Davis v. Menefee, 131 S. E. 527, this act was applied
by the Industrial Commission in a hearing concerning an
injury received by an employee while improving certain real
estate for another person. The question of jurisdiction was
not raised, but the application seems to be incorrect.
Section Not Passed for Benefit of Estate. — The right oi
action to recover for a homicide, whether it arises under
this section or the Federal employers' liability act, or un-
der the general death statute (§ 4424), is not for the bene-
fit of the decedent's estate, or for all of the heirs at law,
but is for the benefit solely of certain designated bene-
ficiaries named in these acts. Cooper v. Cooper, 30 Ga.
App. 710, 119 S. E. 335.
Section Is Constitutional. — This section et seq. are not
violative of art. 3, § 7, par. 8, of the constitution (Civil
Code, § 6473). Georgia Coast, etc., R. Co. v. Hines, 138
Ga. 713, 76 S. E. 60.
That portion of this section which provides that common
carriers by railroad shall be liable to the "next of kin de-
pendent upon" an employee of such common carrier, where
there is no widow or husband or child or children of such
employee is not unconstitutional on the ground, that it
conflicts with the equal-protection clause of the Federal
constitution. Georgia So., etc., R. Co. v. Adkins, 156 Ga.
826, 120 S. E. 610.
Fellow Servant Rule Abrogated. — The fellow-servant rule
has been abrogated by this section and § 2751. Southern
[ 691
§ 2783
INJURIES BY RAILROADS
§ 27*
R Co v. Diseker, 13 Ga. App. 799, 811, 81 S. E. 269. See
also, Lamb v. Floyd, 148 Ga. 357, 361, 96 S. E. 877.
Presumption Under Section Not Rule of Evidence.— The
presumption of negligence against the employer "in case
death results from injury to the employee," created by this
section, is a part of the integral right to recover, and is
not alone a rule of evidence. Wallace v. Southern R. Co.,
10 Ga. App. 90, 72 S. E. 606.
In a suit for the homicide of an employee of a railroad
company, under this section, a presumption of negligence
against the company does not arise upon a prima facie
showing that the deceased met his death while discharging
the duties of his employment. The presumption arises only
upon proof that the deceased was killed by the running of
the locomotives, or cars, or other machinery of the com-
pany, or from an act done by some person in its employ-
ment and service. Smith v. Southern R. Co., 20 Ga. App.
609, 93 S. E- 166.
Venue of Action.— The venue of a cause of action, under
this section, against a railway company for a negligent
homicide is in the county in which the fatal injury, was
inflicted, and not in the county where the injured person
afterwards may have died. The cause of action inheres in
the wrong as consummated by the injury, and not in the
death itself. Atkinson v. Hardaway, 10 Ga. App. 389, 73
S. E. 556.
Pleading Under Section.— Where this section gives a
prior right of action to beneficiaries other than the plain-
tiff, the petition must negative the existence of any person
who has such primary right to sue. Lamb v. Tucker, 146
Ga. 216, 91 S. E. 66.
Parties to Action.— Under this section, the action must be
brought by the parents of the deceased employee, if any,
he being unmarried and there being no administration
upon his estate. Williams v. Western, etc., R. Co., 142
Ga. 696, 83 S. E. 525; Western, etc., R. Co. v. Smith, 144
Ga. 737, 87 S. E. 1082.
Where a suit to recover damages for the homicide of the
plaintiff's son was not brought by the personal representa-
tive of the deceased, and the petition fails to allege that no
administrator or executor for , the deceased had been ap-
pointed at the time it was filed, it is obvious that the suit
was brought under the provisions of § 4424 and not un-
der this section. Georgia R. Co. v. Bessinger, 17 Ga. App.
617, 87 S. E. 920.
Prima Facie Case.— The plaintiff makes a prima facie
case in one action, under this section, by merely showing
that the decedent met his death while discharging the du-
ties of his employment. Atkinson v. Hardaway, 10 Ga.
App. 389, 73 S. E. 556; Walton v. Georgia, etc., R. Co., 12
Ga. App. 106, 76 S. E. 1060.
Measure of Damages. — The measure of damages for a
negligent homicide falling within the purview of this sec-
tion is the "full value of the life of the deceased," which,
by reference to § 4425, is amplified to mean "the full value
of the life of the deceased without deduction for necessary
or other personal expenses of the deceased had he lived."
Atkinson v. Hardaway, 10 Ga. App. 389, 73 S. E. 556.
Death of Car Inspector Resulting Where Signals Not
Used. — Where suit was brought by the administratrix of
a deceased employee, who was engaged as a car inspector
of receivers operating a railroad as a common carrier,
whose death was caused by being run over by an engine of
the carrier, alleged to have been negligently run at an
improper speed, without proper signals, and without any
lookout, though it was running backward through a rail-
road yard where many employees were constantly at work,
a presumption of negligence arose, under this section. At-
kinson v. Alexander, 142 Ga. 124, 82 S. E. 561.
Action Against Federal Receiver. — The employer's lia-
bility act, found in this section et seq., is applicable to a
suit brought, under authority of § 2788, by an employee
against a Federal receiver of a railroad operated partially
within this State. Atkinson v. Swords, 11 Ga. App. 167,
74 S. E. 1093.
Applied in Tidewell v. Central Ga. R. Co., 140 Ga. 250,
253, 78 S. E. 898; Dunbar v. Hines, 152 Ga. 865, 870, 111 S.
E. 396; Wrightsville, etc., R. Co. v. Tompkins, 9 Ga. App.
154, 70 S. E. 955; Central Georgia R. Co. v. De Loach, 18
Ga. App. 362, 89 S. E. 433; Western, etc., R. Co. v. State,
23 Ga. App. 225, 97 S. E. 878; Sherrod v. Atlanta, etc., R.
Co., 27 Ga. App. 510, 108 S. E. 908.
Cited in Massee, etc., Co. v. Georgia, etc., Railway, 12
Ga. App. 436, 438, 77 S. E. 366.
§ 2783. Contributory negligence and ordinary
care. — In all actions hereafter brought against
any such common carrier by railroad, under or
by virtue of any of the provisions of this, the
preceding, or the four succeeding sections,
recover damages for personal injuries to an en
ployee, or where such injuries have resulted i
death, the fact that the employee may have bee
guilty of contributory negligence, not amountin
to a failure to exercise ordinary care, shall nc
bar a recovery, but the damages shall be dimir
ished by the jury in proportion to the amount c
negligence attributable to such employee: Pre
vided, that no such employee who may be ii
jured, or killed, shall be held to have been guilt
of contributory negligence in any case where th
violation by such common carrier of any statut
enacted for the safety of employees contribute
to the injury or death of such employee.
Cross References.— See 3 Cum. Dig. 708, 4 Enc. Dig. 9
As to effect of consent by injured person, see § 2781. A
to abolition of fellow servant rule in railroad cases, see
2782. As to duty of plaintiff to avoid injury, see § 4426. |
Rule Stated. — Under this section, contributory negligenc
amounting to a failure to exercise ordinary care will at
solutely bar recovery, while contributory negligence of
less degree will diminish the recovery, Seaboard Air-Lit:
Ry. v. Hunt, 10 Ga. App. 273, 275, 73 S. E. 588.
Section Is Constitutional. — This section is constitutiona
Georgia Coast, etc., R. Co. v. Hines, 138 Ga. 713, 76 5
E- 60.
Section Identical with Federal Act. — The provisions t
this section and § 3 of the Federal Employee's Liability at
are practically identical. Central Ga. R. Co. v. Lindsej
28 Ga. App. 198, 202, 110 S. E. 636. For suits under th
Federal "employers liability act," see Charlester & W. C
R. Co. v. Sylvester, 17 Ga. App. 85, 86 S. E- 275; Ivey I
Louisville & N. R. Co., 18 Ga. App. 434, 89 S. E. 629; Louis
ville & Nashville R. Co. v. Pasehal, 145 Ga. 521, 89 S. I
620.
Federal Safety Appliance Acts. — This section eliminate
the defenses of assumed risk and contributory negligenc
when a violation of the Federal Safety Appliance Act
contributes to cause injury. Louisville, etc., R. Co. -\
Layton, 243 U. S. 617, 61 L. Ed. 931, 37 S. Ct. 456.
Pleading Under Section. — Under this section an allegaj
tion in the petition of freedom from fault on his part, an
a plea that he failed to exercise ordinary care, puts in is
sue the question whether the recovery should be diminishe
by reason of the fact that he was guilty of contributor
negligence not amounting to a failure to exei-cise ordinar
care. Georgia Railroad v. Hunter, 12 Ga. App. 294, 77 S. I
176.
"May" Improperly Used for "Shall." — The use of th
word "may" for "shall" by the court charging thi
section to the jury is error. Central of Georgia Ry. Co. ^
Brown, 138 Ga. 107, 113, 74 S. E. 839.
Cited in Robinson v. State, 158 Ga. 47, 52, 122 S. E. 386|
Atkinson v. Boggs, 16 Ga. App. 738, 739, 86 S. E. 62; Cen
tral of Ga. R. Co. v. Hartley, 25 Ga. App. 110, 103 S. 1
259; Massee & Felton Lumber Co. v. Georgia & Florid
Ry., 12 Ga. App. 436, 438, 77 S. E- 366.
§ 2784. Risk of employment.— In any actio)
brought against any common carrier under am
by virtue of an}^ of the provisions of the twi
preceding sections, to recover damages for in
juries to or the death of any of its employees
such employee shall not be held to have assume
the risks of his employment in any case wher
the violation by such common carrier of an;
statute enacted for the safety of the employee
contributed to the injury or death of such em
ployee.
As to duty of servant to master, generally, see § 3131
As to recovery for injury by co-employee, see § 2782.
Cited in Atkinson v. Boggs, 16 Ga. App. 738, 739, 86 S
E. 62; Massee & Felton Lumber Co. v. Georgia & Florid.
Ry., 12 Ga. App. 436, 438, 77 S. E. 366.
§ 2785. Contract to exempt from liability, an<
set-off of indemnity. — Any contract, rule, regula
tion, or device whatsoever, the purpose or inten
of which shall be to enable any common carrie
to exempt itself from any liability created by thi
f 692 1
2786
ROLLING-STOCK OF RAILROADS
§ 2790
hree preceding sections, shall, to that extent, be
void: Provided, that in any action brought
jigainst any such common carrier, under or by
virtue of any of said sections, such common
carrier may set off therein any sum it has con-
tributed or paid to any insurance, relief, benefit,
or indemnity that may have been paid to the
linjured employee, or, in the event of death, to
the person or persons entitled thereto on ac-
ount of the injury or death for which said
ction is brought.
Cross References. — See 8 Cum. Dig. 511, 512. As to
contracts exempting master from liability for negligence,
generally, see § 3132. As to contracts against public policy,
see § 4253. As to liability of carrier for wrongful conduct
of agents, see § 2779. As to liability of employee for crimi-
nal negligence, see § 117 P. C.
Constitutionality of Section. — This section is not violative
of the fourteenth amendment to the Federal Constitution.
Washington v. Atlantic Coast Line R. Co., 136 Ga. 638, 71
S. E- 1066.
Contract of Employment Prior to Act Immaterial. — An
employee who joined the relief department of a railroad
company prior to the passage of this section, but who was
injured after its passage is bound by its provision. Wash-
ington v. Atlantic Coast Line R. Co., 136 Ga. 638, 71 S. E.
1066.
Cited in Louisville & Nashville R. Co. v. Bradford, 135
Ga. 522, 523, 69 S. E. 870; Honser v. Savannah Electric Co.,
9 Ga. App. 766, 767, 72 S. E. 276; Massee & Felton Lumber
Co. v. Georgia & Florida Ry., 12 Ga. App. 436, 438, 11 S.
E- 366.
§ 2786. Limitation to right of action. — No ac-
tion shall be maintained under the four preceding
sections, unless commenced within two years
from the day the cause of action accrued.
As to limitation of actions for injuries to the person, see
S 4496.
§ 2787. "Common carrier," what the term in-
cludes.— The term "common carrier," as used in
the preceding section, shall include the receiver
or receivers or other person or corporation
charged with the duty of the management and
operation of the business of a common carrier.
As to liability of receivers of carriers, see § 2788.
§ 2788. (§ 2324.) Receiver's liability to em-
ployees.— The liability of receivers, trustees,
assignees, and other like officers operating rail-
roads in this State, or partially in this State, for
injuries and damages to persons in their employ,
caused by the negligence of coemployees, or for
injuries or damages to personal property, shall
be the same as the liability now fixed by the law
governing the operation of railroad corporations
in this State for like injuries and damages; and
a lien is hereby created on the gross income of
any such railroad while in the hands of any such
receiver, trustee, assignee, or other person, in
favor of such injured employees, or plaintiff,
superior to all other liens against defendant un-
der the laws of this State. Acts 1895, p. 103;
Axts 1896, p. 63.
Cross References.— See 9 Cum. Dig. 902, 906, 909, 910. il
Enc. Dig. 82. See also 8 Cum. Dig. 41. As to appointment
of receivers, see § 5475. As to garnishment of receivers,
see § 5485. As to duties of receivers of railroads, see §
2797. As to receivers of railroad as common carriers, see
§ 2787.
Common Law Changed. — This section changed the rule
of common law. Youngblood v. Comer, 97 Ga. 152, 25 S.
E. 838; Barry v. McGhee, 100 Ga. 759, 763, 28 S. E. 455.
Charleston & Western Carolina R. Co. v. Robinson, 11 Ga.
App. 492, 75 S. E. 820.
Employer's Liability Act Held Applicable. — The em-
ployer's liability act, found in § 2782 et seq., is applicable
to a suit brought, under authority of this section, by an
[ 693
employee against a Federal receiver of a railroad operated
partially within this State. Atkinson v. Swords, 11 Ga.
App. 167, 74 S. E. 1093.
Injuries Arising Before Appointment.— A receiver of a
corporation, without the permission of the court which ap-
pointed him, can not be sued for any acts of negligence of
the corporation prior to his appointment as receiver. Har-
rell v. Atkinson, 9 Ga. App. 150, 70 S. E. 954.
Statute of Limitations. — Under this section, it has been
held that the mere appointment of a receiver does not in
any way affect the running of the statute of limitations.
Cain v. Seaboard Air-Line Railway, 138 Ga. 96, 74 S. E-
764.
Cited in Lamb v. Floyd, 148 Ga. 357, 362, 365, 96 S. E
877; Hancock v. Miller, 28 Ga. App. 387, 111 S. E. 80; Birm-
ingham Trust & Savings Co. v. Atlanta, etc., R. Co., 2.S"
Fed. 561.
§ 2789. (§ 2325.) Suits, how and where
brought. — Suits may be brought against either
of such officers in the same county, and service
may be perfected by serving them or their agents
in the same manner, as if the suit had been
brought against the corporation whose property
or franchise is being operated by them, and all
such suits may be brought without first having
obtained leave to sue from any court. Acts 1895,
p. 103.
Cross References.— See 9 Cum. Dig. 909, 910. As to duty
of receivers to pay laborers liens, see § 2794. As to venue
in suits against railroads, see § 2798. As to exemption of
receivers from garnishments, see § 5485.
Tort or Contract Action. — This section applies whether
the action arises in contract or tort. Munson v. Houser,
9 Ga. App. 346, 71 S. E. 595.
Section Not Applicable to Non- Employees. — This section
does not apply to a suit brought against the receivers of a
railroad company to recover damages arising from personal
injuries to one not an employee of the receivers. Fried v.
Sullivan, 27 Ga. App. 326, 108 S. E. 127; Hancock v. Mil-
ler, 28 Ga. App. 387, 111 S. E. 80.
Applied in Lamb v. McElwaney, 143 Ga. 490, 85 S. E-
705.
SECTION 9.
Rolling-Stock of Railroads.
§ 2790. (§ 2326.) Contract for conditional sale
of rolling-stock, etc. — Any person or corporation
may make a contract in writing with any rail-
road company or person owning or operating a
railroad in this State to furnish said company or
person with rolling-stock or other equipment, de-
liverable either immediately or subsequently at
stipulated periods; by the terms of which con-
tract the purchase-money for said property, in
whole or in part, is to be paid thereafter, and in
which contract it may be agreed that the title to
the property so sold or contracted to be sold shall
not pass to or vest in the vendee until the pur-
chase-money for the same shall have been fully
paid, notwithstanding the delivery of such prop-
erty to and the possession of the same by the
vendee; but that until said purchase-money shall
have been fully paid, the title to said property
shall remain in said vendor and his or its assigns.
Acts 1889, p. 188.
As to execution of conditional sales, generally, see §
3318.
Contracts Before Act Not Within Section. — This section
et seq. validating contracts of the sale of rolling stock
made or to be made to the owner or operator of a railway
within the state of Georgia, with reservation of title, and
requiring such contracts to be recorded within six months
after execution, has no application to such a contract, made
before the passage of such act, by two foreign corpora-
tions, outside of the state, for the sale of rolling stock to
be used within the state, neither corporation being the
owner or operator of a railway in the state. Central Trust
Co. v. Marietta, etc., R. Co.. 48 Fed. 32, 865, 868. 875.
§ 2791
LIENS AGAINST RAILROADS
§ 279!
§ 2791. (§ 2327.) Contracts for the lease of
rolling-stock. — The manufacturer, owner, or
assigns of any railroad equipment or rolling-
stock may make a written contract for the lease
of such equipment or rolling-stock to any railroad
company or person owning or operating a rail-
road in this State; and in such contract it shall
be lawful to stipulate for a conditional sale of
said property to the said lessee on the termina-
tion of such lease, and to stipulate that the rental
received for said property may as paid, or when
fully paid, be applied and treated as purchase-
money, and that the title to such property shall
not vest in such lessee or vendee until the amount
of such purchase-money shall have been paid in full
to the lessor or vendor, or to his or its assigns, not-
withstanding the delivery of such property to
and possession of the same by such lessee or
vendee, but that until such purchase-money shall
have been fully paid the title to such property
shall remain in said lessor or vendor, or in his
or its assigns.
See 9 Cum. Dig. 785, 786. As to leasing of the Western
& Atlantic Railroad, see notes to § 1288.
To What Railroads Applicable. — This section and § 2792
apply to all railroads, whether chartered or not, in
the operation of which cars and locomotives are es-
sential. Real Estate Bank & Trust Co. v. Baldwin Loco-
motive Works, 148 Ga. 821, 98 S. E. 486; Real Estate Bank
& Trust Co. v. Baldwin locomotive Works, 145 Ga. 831,
90 S. E. 49.
§ 2792. (§ 2328.) Validity and record of con-
tracts.— Every such contract hereby authorized
shall be good, valid, and effectual to retain the
title to said property in said vendor or lessor, or
in his or its assigns, as against the said vendee
or lessee, and against all persons claiming there-
under. Such contracts, if made within this State,
shall be executed in the presence of, and attested
by, or be proved before a notary public, or jus-
tice of any court in this State, or a clerk of
the superior court. If made without this State, it
shall be executed in the presence of, and at-
tested by. or proved before a commissioner
of deeds for the State of Georgia, a notary
public having authority to act as such in the
State or other jurisdiction within the United
States where the contract is made, or a con-
sul or vice-consul of the United States (the
certificates of the foregoing officers, under their
seals, being evidence of the fact), or by a judge
of a court of record in the State where executed;
such contract shall be recorded, within six
months after the date of its execution, in the of-
fice of the clerk of the superior court of the
county where is situated the principal office, in
this State, of the said railroad company. Each
locomotive engine and each car so sold or con-
tracted to be sold or leased, as aforesaid, shall
have the name of the vendor or lessor, or the
assignee of such vendor or lessor, plainly placed
or marked on the same, or be otherwise so
marked as to plainly indicate the ownership
thereof. Acts 1917, p. 55.
Cross References. — See notes to § 2791. As to execution
of conditional sales, generally, see § 3318. As to method
of recording conditional sales, see § 3319. As to form and
execution of a mortgage, see § 3257. As to method of
attesting deeds out of state, see § 4203.
Editor's Note. — This section was amended by the acts
of 1917 (Acts 1917, p. 55), by inserting after the word
"Georgia" in the third sentence of the section the follow-
ing words, to-wit: "a notary public having authority to act
as such in the state or other jurisdiction within the Unitec
States where the contract is made."
Applied in Real Estate Bank & Trust Co. v. Baldwin,
145 Ga. 831, 90 S. E. 49; S. C, 148 Ga. 821, 98 S. E. 486. '
SECTION 10.
Liens Against Railroads.
§ 2793. (§ 2329.) Liens for wages of railroad
employees. — The amounts due employees by
any railroad company for wages earned by serv
ice rendered to said railroad company shall con
stitute a lien upon the railroad and other prop-
erty of said railroad company, and shall be
superior in dignity to the lien of any mortgage
or other contract lien executed or created byi
said railroad company since December 13th,
1893: Provided, that no employee shall be en-
titled to said lien under this section to an amount
exceeding five hundred dollars. Acts 1893, p. 91.
As to validity of laborers liens, see § 3329.
Adjoining Carrier Not Entitled to Lien. — The amount
claimed by the intervenor (a connecting railroad company)
for the switching of cars for the defendant railroad com-
pany was not wages for services rendered by an employee
for the railroad company, within the meaning of this sec-
tion. Valdosta, etc., R. Co. v. Atlantic Coast Line R.
Co., 148 Ga^ 842, 98 S. E. 465.
The Seaboard Air-Line Railway did not acquire a lien
under this section for services of its agents and employees,
rendered in the maintenance and operation of the joint
depot at Vidalia, or for labor of its employees in repairing
cars belonging to the Georgia & Florida Railway. Balti-
more Trust Co. v. Seaboard Air-Line Ky., 149 Ga. 260, 99
S. E. 867.
Cited in Birmingham Trust & Savings Co. v. Atlanta,
etc., R. Co., 287 Fed. 561, 563; S. C, 300 Fed. 173, 174,
§ 2794. (§ 2330.) Receiver or trustee to pay.—
Whenever any railroad has been seized by any
order or process from any court appointing a re-
ceiver for said railroad company, it shall be the
duty of the judge presiding in said court to order
payments on account of liabilities specified in the
preceding section to be made out of any funds of
said company available for said purpose, so soon
as the amount of said liabilities is liquidated, and
if the same are disputed, then so soon as they
can be judicially ascertained, and without await-
ing the final judgment in said cause. And when-
ever any railroad has been seized by any trustee
or other person by authority of any provision in
any trust deed or other conveyance to secure
debt, it shall be the duty of said person so seiz-
ing said railroad to pay said liabilities out of the
first moneys coming into his hands, so soon as
the amount of the same can be ascertained, or
determined judicially or otherwise. And in all
cases where a railroad has been seized as last
aforesaid, the persons having such claim of lia-
bilities shall have the same right to proceed
against said property, to collect and secure the
amount due on account of said liabilities, as if
said railroad had not been seized by any trustee
or other person under said trust deed or other
conveyance for the security of debt.
Cross References. — See 9 Cum. Dig. 782. As to venue of
suits against receivers, see § 2789. As to receivers as offi-
cers of the courts, see § 5475. As to effect of a receiver-
ship on liens for supplies and livestock, see § 2796. As to
duties of receivers of railroads, see § 2797.
§ 2795. (§ 2331.) Liens for supplies and live
stock. — All persons furnishing material, supplies,
or other articles necessary to the operation of
any railroad company which is operated in this
[694]
§ 2796
SUITS AGAINST RAILROADS AND ELECTRIC COMPANIES
§ 2798
State, and all persons having claims against such
company for live stock killed by its engines or
cars, shall have a lien upon the property of the
company for the amounts due for such supplies,
material, or other necessary articles furnished
within six months preceding the institution of
proceedings to enforce the same, or for the
amounts clue to them for damages for the killing
of such live stock, which lien shall be superior
in dignity to any mortgage or other contract lien
created by said railroad company. Acts 1894,
p. 68.
See 9 Cum. Dig. 782. As to validity of liens for supplies
furnished railroads, see § 3329, par. 13.
Necessity of Enforcing Lien. — A lien under this section
for coal furnished to a railroad perished, where no action
was taken to enforce it, though bills accrued within six
months before receivership. Birmingham Trust & Savings
Co. v. Atlanta, etc., R. Co., 300 Fed. 173.
Supplying of Cars. — The supplying of cars as necessary
to the operation of a railroad is the "furnishing of ma-
terial, supplies, or other articles," within the meaning of
this section. Valdosta, etc., R. Co. v. Atlantic Coast Line
R. Co., 148 Ga. 842, 98 S. E. 465.
Premiums on Insurance Policies. — Premiums on policies
of fire insurance, issued under the circumstances of this
case, were not a lien upon the property of the company
under the provisions of this section. Jones v. Peoples, 145
Ga. 335, 89 S. E- 195.
Lien Arising from Maintenance of Joint Depot. — Under
this section, the Seaboard Air-Line Railway acquired a lien
for use and hire of its cars and equipment, for. coal, for
material used in repairing cars, for rental of water-tank,
for tariffs, and for' any material used in maintaining and
operating the joint depot at Vidalia ; the lien, however,
extending only to such portions of such material of any of
the foregoing classes as were furnished within six months
immediately preceding the filing of the intervention. Balti-
more Trust Co. v. Seaboard Air-Line Ry., 149 Ga. 260, 99
S. E. 867.
§ 2796. (§ 2332.) Such liens not defeated by
receivership or other seizure. — Whenever any
railroad in operation in this State has been put
in the hands of a receiver by any court in this
State, it shall be the duty of the presiding judge
to order the payments on account of the liabili-
ties specified in the preceding section, out of the
income of the property available for that pur-
pose, so soon as the amounts aforesaid have been
liquidated, or, if disputed, have been judicially as-
certained, without awaiting the final judgment in
said cause. Whenever such railroad shall be
seized by a trustee or other person than through
the instrumentality of a court of justice, it shall
be the duty of such person so seizing said rail-
road to pay the liabilities aforesaid out of the
first moneys arising from the operations of the
road next after the payments due for wages of
employees and other claims superior in dignity
to the claims aforesaid. No such seizure by such
trustee or other person, other than through a
court of justice, shall have the effect to prevent
proceedings against the railroad property, on the
part of persons having such claims, to collect
and secure the same by due process of law.
As to receivers as officers of the court, see § 5475. As
to venue of actions against receivers, see § 2789. As tc
duty of receivers to pay liens for wages of railroad em-
ployees, see § 2794.
§ 2797. (§ 2333.) Duties of receivers of rail-
roads.— In all cases where the business of any
corporation operating a railroad, either wholly
or partially in this State, shall, by an order or
decree of any court, be placed in the hands of a
receiver for the benefit of the creditors or stock-
holders of said corporation, it shall be the duty
of said receiver to apply the income of said rail-
road to the payment of the incidental expenses
necessary to the carrying on said business, which
shall include the wages of employees, wood,
cross-tires, and other material furnished, and
which may be necessary for conducting said busi-
ness, and keeping the property in repair, and the
damages which may arise from the loss or injury
to goods, wares, and merchandise received by
said road for transportation, and for injuries to
persons and property, caused by the running of
the cars on said road, and for which said road is
now liable as common carriers by the laws of
this State; and a lien is hereby created on the
gross income of said road, while in the hands of
such receiver, in favor of such creditors or claim
ants, superior to all other liens under the laws of
this State. If said receiver should be removed,
or a vacancy occur in said office and a successor
be appointed, it shall be his duty to pay the liens
herein provided for, according to their date, out
of any funds in his hands as such receiver,
whether such liability occurred before or after
his appointment. Acts 1876, p. 122; 1871-2, pp.
288, 289.
See 9 Cum. Dig. 912, 913, 11 Enc. Dig. 76, 95. As to a
receiver as an officer of the court, see § 5475.
Constitutionality of Liens. — The lien created by the pro-
visions of this section, in favor of certain classes of cred-
itors designated therein, does not unreasonably interfere
with interstate commerce, and is not offensive to the com-
merce clause of the Federal constitution. Standard Steel
Works Co. v. Williams, 158 Ga. 434, 124 S. E. 21.
Receiver Appointed Where Mortgage Foreclosed. — This
section is applicable to the case of the appointment of a
receiver for a railroad company under mortgage -foreclosure
proceedings. Standard Steel Works Co. v. Williams, 155
Ga. 177, 116 S. E. 636.
Interest on Receivers Certificates Not Incidental Ex-
penses.— The interest on the underlying bonds and the re-
ceivers' certificates partook of the nature of the debts out
of which they issued, and does not fall under the head of
incidental expenses for the payment of which provision is
made in this section. Standard Steel Works Co. v. Wil-
liams, 155 Ga. 177, 116 S. E. 636.
Cited in Birmingham Trust & Sav. Co. v. Atlanta, etc.,
R. Co., 287 Fed. 561, 563.
SECTION ll.
Suits Against Railroads and Electric Companies.
§ 2798. (§ 2334.) Must be sued where action
originates; definition of "electric companies." —
All railroad and electric companies shall be sued
in the county in which the cause of action origi-
nated by any one whose person or property has
been injured by such railroad or electric com-
pany, its officers or agents or employees, for the
purpose of recovering damages for such injuries;
and also on all contracts made or to be per-
formed in the county where suit is brought; any
judgment rendered in any other county than the
one in which the cause so originated shall be
utterly void. But if the cause of action arises in
a county where the railroads or electric company
liable to suit has no agent, then service may be
perfected by the issuance of a second original,
copy to be served upon said company in the
county of its principal office and place of busi-
ness, if in this State, and if not, then on any
agent of such company, or then suit may be
brought in the county of the residence of such
company. Whenever any railroad or electric
[ 695 ]
§ 2798
SUITS AGAINST RAILROADS AND ELECTRIC COMPANIES
§ 2798
company incorporated under the laws of this
State shall have in violation of the provisions of
Paragraph 4, of Section 2, of Article 4, of the
Constitution of this State, acquired by purchase,
lease or otherwise the ownership or control of
the line of railroad of a competing railroad com-
pany in this State, or whenever any railroad or
electric company incorporated under the laws of
this State shall have, in violation of the provis-
ions of Paragraph 4 of Section 2 of Article 4 of
the Constitution of this State, acquired by pur-
chase, lease or otherwise, the ownership or con-
trol of the generating plant or transmission line
of a competing electric company in this State,
the venue of a suit brought against said first
described railroad or electric company for the
purpose of setting aside and having annulled
such unlawful act of acquisition shall be in any
county through which may run the line of rail-
road, or in any county through which may run
the transmission line of such electric company or
in which may be located the generating plant of
such electric company so unlawfully acquired.
The words "electric company" as used herein
shall embrace and include both all joint stock
companies and also all corporations engaged
in the business of either generating or trans-
mitting electricity for light, heat, power or
other commercial purposes. The following
electric companies shall be embraced within
the provisions of this Code Section, to-wit:
First, electric companies owning a generat-
ing plant in one county and having its situs or
principal office either in some other county of
this State, or beyond the limits of this State; sec-
ond, an electric company operating a generating
plant, whether under lease or otherwise, in one
county and having its situs or principal office,
either in some other county of this State or be-
yond the limits of this State; third, an electric
company owning a transmission line located in
one county and having its situs or principal of-
iice in some other county of this State or beyond
the limits of this State; fourth, an electric com-
pany operating, whether under lease or other-
wise, a transmission line located in one county
and having its situs or principal office in some
other county of this State or beyond the limits
of this State; fifth, an electric company owning
a transmission line located in, or extending
through, more than one county; sixth, an electric
company operating, wmether under lease or oth-
erwise, a transmission line located in or extend-
ing through more than one county. Acts 1892,
p. 59; 1898, p. 50; 1912, p. 66.
Cross References. — For full treatment, see 11 Cum. Dig.
346-354, 12 Enc. Dig. 649-658. See also 3 Cum. Dig. 270,
272, 333, 352, 356, 2 Enc. Dig. 806, 847. As to service on cor-
porations, generally, see § 2258. As to service on agents of
corporations in contract or tort actions, see § 2259. As to
venue of actions against carriers who violate orders made
by railroad commission, see § 2667. As to venue of actions
to recover penalties, see § 2692. As to venue to actions
for injuries where whistle of engine was not blown, see §
2679. As to venue of suits to collect forfeitures imposed
for compelling trainmen to work over thirteen hours a day,
see § 2695. As to venue of actions where carrier fails to
furnish equal accommodations to all, see § 2716. As to
venue of actions for penalties where carrier fails to sell
tickets of connecting carriers, see § 2755. As to venue of
actions where carrier fails to weigh lumber cars, see §
2766. As to venue of actions against railroad receivers, see
§ 2789. As to venue of action by telegraph company to con-
demn right of way owned by a railroad, see § 5238. As to
power of legislature to authorize corporations to create a
monopoly, see § 6466.
Editor's Note. — The legislature passed an act in 1856,
[Acts 1856, p. 154], allowing any one whose person or prop-
erty was injured by the running of trains to bring an ac-
tion in the county where the cause of action originated.
This section was amended in 1859, [Acts 1859, p. 48], by a
provision allowing actions to be brought in the county
where a contract was made, or to be performed. In 1869,
[Acts 1869, p. 14], this section was amended further, so as
to embrace actions other than those resulting from thei
running of trains. See Arnold v. Georgia R., etc., Co., 50
Ga. 304, 306.
In 1892, [Acts 1892, p. 59], this section as it then stood
was made mandatory, instead of permissive. This amend-
ment was held to be constitutional in the case of Gilbert
v. Georgia R., etc., Co., 104 Ga. 412, 30 S. E. 673.
By an amendment in 1898, [Acts 1898, p. 50], the venue
of a suit against a railroad to set aside an unlawful ac-
quisition of the line of a competing railroad was added to
this section. See Bracewell v. Southern R. Co., 134 Ga.
537, 543, 68 S. E. 98.
This section was again amended in 1912 (see acts 1912, p.
66). The effect of this amendment was to extend the pro-
visions of this section so as to include electric companies
therein. The amending act also defined the words "electric
company."
This amendment is constitutional (See Central Georgia
Power Co. v. Stubbs, 141 Ga. 172, 80 S. E. 636). This lat-
ter amendment also provided for service by issuance of a
second original where the company has no agent where the
cause of action arose. The effect of this amendment was
to overrule the case of Tuggle v. Enterprise Eumber Co.,
123 Ga. 480, 51 S. E. 433. (See Central Georgia Power Co.
v. Stubbs, 141 Ga. 172, 179, 80 S. E. 636; Towaliga Falls
Power Co. v. Foster, 143 Ga. 688, 85 S. E. 835.)
The amendment was wholly unnecessary in so far as the
same affected suits against railroad companies. (See Cen-
tral Georgia R. Co. v. Afford, 154 Ga. 863, 864, 115 S. E-
771.)
Purpose of Section. — The scheme of this section is to
make the jurisdiction exclusive in the county where the
cause of action originates when there is such resident
agent, but elective when there is not. Devereux v." At-
lanta R., etc., Co., Ill Ga. 855, 36 S. E. 939.
Section as Exception to General Rule. — The only excep-
tions to the general rule that a railroad corporation must
be sued in the county where its principal office is located
are contained in this section. McCall v. Central, etc., R.
Co., 120 Ga. 602, 604, 48 S. E. 157.
Absence of Agent in County Where Tort Occurred. — Un-
der this section an action against a railway company for
a tort may be brought in the county of the residence of
the company when it has no agent in the county where the
cause of action arose. Georgia Southern, etc., R. Co. v.
Pearson, 120 Ga. 284, 47 S. E. 904; Southwestern R. Co. v.
Vellines, 14 Ga. App. 674, 82 S. E. 166.
Section Is Mandatory. — This section does not allow a
railroad company, expressly or by silence, to give jurisdic-
tion to the court of a county other than that in which the
tort was committed. Its provisions are mandatory. Sum-
mers v. Southern R. Co., 118 Ga. 174, 175, 45 S. E. 27.
"Injury to Property," Defined. — The expression "injury
to property" is used in this section, in its broad and gen-
eral sense; and is broad enough to comprehend a wrong-
ful conversion of property. Crawford v. Crawford, 134 Ga.
114, 67 S. E^ 673, 28 E- R. A., N. S., 353, 19 Ann. Cas. 932,
and citations; Lamb v. Howard, 145 Ga. 847, 850, 90 S.
E. 63.
What Constitutes an Agent of a Railroad. — For service
upon a railroad corporation to be effectual by reason of
service upon an agent, at the . time of the service he must
be its agent. Pennington & Evans v. Douglas, etc., R.
Co., 6 Ga. App. 854, 65 S. E. 1084, and citations. See also,
Ocean Steamship Co. v. Wilder & Co., 107 Ga. 220, 226, 33
S. E. 179.
An agent of the state, under a receiver who has pos-
session of the road in consequence of a seizure by the gov-
ernor for non-payment of interest on bonds which the state
has indorsed, is not the agent of the corporation. Cherry
v. North & South Railroad Co., 59 Ga. 446.
Foreign Corporations Within Section. — This section fix-
ing the venue of suits against railroad companies, applies
to foreign as well as domestic corporations. Mitchell v.
Southern R. Co., 118 Ga. 845, 45 S. E. 703; Bracewell v.
Southern R. Co., 134 Ga. 537, 68 S. E. 98.
A foreign corporation not operating under a domestic
franchise, has no residence in this State, within the mean-
ing of this section, and the action, if brought in this State,
must be brought in the county in which the cause of ac-
[696]
§ 2798
SUITS AGAINST RAILROADS AND ELECTRIC COMPANIES
§ 2798
tion originated, whether the defendant have an agent in
that county or not. Coadley v. Southern R. Co., 120 Ga.
960, 48 S. E- 372.
Injuries Sustained in Another State — Foreign Corpora-
tion.— This section does not apply to a suit against a railroad
company for injuries sustained in a foreign state on ac-
count of the negligence of the agents and servants of the
company in that state. Atlanta, etc., R. Co. v. Wilson, 116
Ga. 189, 42 S. E. 356; Reeves v. Southern R. Co., 121 Ga.
561, 49 S. E. 674, 70 L. R. A. 513.
Venue of Implied Contracts. — Where an agent of rail
road in one county, is claimed by the principal office in
another county to be in arrears, and he pay up, at the
principal office, the amount claimed, and afterwards sues
to recover back the money, this is a suit on an implied con-
tract to repay the money if not properly paid, and it is
neither made or to be performed in the first. Georgia
Railroad & Banking Co. v. Seymour, 53 Ga. 500.
Suits in Equity — Partial Assignment of Wages. — This
section does not fix the venue of suits in equity. The
venue of such suits is fixed by § 6540. An action by an
assignee against the railroad company and its employee,
which involves the partial assignment of wages due by
said company to its employee, is an equitable action, or
a case in equity, to which both the company and the em-
ployee are necessary parties. King v. Atlantic Coast Line
R. Co., 160 Ga. 842, 846, 129 S. E- 86.
Venue of Action for Injuries by Previous Owner. — This
section does not apply to a suit brought against a rail-
road company having its principal office in this state, to
recover upon the liability attaching to it as the purchaser
or successor in title of another corporation or an individual,
to whom the injuries alleged were primarily chargeable.
White v. Atlanta, etc., R. Co., 5 Ga. App. 308, 63 S. E.
234.
Action for Failure to Build Spur Track Not Under Sec-
tion,— Where a common carrier neglects or refuses to obey
an order of the railroad commission, requiring it to build a
spur or side-track in a certain county, and suit is brought
by an individual to recover for damage, resulting there-
from, the venue of the suit is not determined by this sec-
tion. English v. Central of Ga. R. Co., 7 Ga. App. 263, 66
S. E. 969.
Section Not Applicable to Joint Action of Trespass.—
Where the company and third person are joint trespassers,
this section does not determine the venue of the suit. Cen-
tral, etc., R. Co. vi Brown, 113 Ga. 414, 38 S. E. 989. As
to venue of suits against joint trespassers, see § 6541.
Action Against Joint Obligors Not Within Section. —
This section does not apply to a suit on a bond made by a
railroad company in a county other than that in which its
principal office is located, conditioned to pay damages to
another railroad company resulting from the delay incident
to the prosecution of a writ of error complaining of the re-
fusal to enjoin the latter company from crossing the tracks
of the former in still another county. Waycross Air-Line
R. Co. v. Offerman & Western R. Co., 114 Ga. 727 40 S
E. 738.
Failure of Railroad to Trace Freight. — The venue of a
suit against a railroad company for damages for failure to
trace freight under the provisions of § 2771, is the county
where the principal office or place of business of the initial
carrier is located. This section does not apply to such a
case. McCall v. Central, etc., R. Co., 120 Ga. 602, 48 S. E
157.
Constructor of Plant Not "Electric Company."— A general
contracting corporation, engaged in the construction of a
tunnel, building a dam and power house, is not an "electric
company" within the meaning of this section. Northern Con-
tracting Co. v. Maddux, 144 Ga. 686, 87 S. E. 892.
Ejectment of Passenger Who Sues Initial Carrier.— Where
a passenger purchase a ticket for his transportation over
several connecting railroads, and, after using the same for
his passage over the initial road, was ejected from a train
gp a connecting road, under this section his cause of ac-
tion against the company that sold him the ticket, for such
wrongful ejection, originated in the county where the
ejection occurred. Georgia Southern, etc., R. Co. v. Pear-
son, 120 Ga. 284, 47 S. E. 904.
Venue of Continuous Tort to Passenger.— The county in
which the transportation and the alleged injuries com-
menced is not a wrong venue, under this section, for an
action by a passenger against a carrier who tortiously and
continuously failed to provide for the plaintiff's comfort
during a journey from a point in this state to a point in
another state. Bryant v. Atlantic Coast Eine R. Co., 1<3
Ga. App. 536, 91 S. E. 1047.
Action Against Initial Carrier in County of Destination.
—Where there is an interstate shipment of goods and they
are damaged in transit, under this section, the superior
court of the county of the destination of the shipment has
jurisdiction of a suit for damages therefor against the initial
nonresident carrier. Adair v. Atlantic Coast Line R. Co.,
21 Ga. App. 564, 94 S. E. 840.
Recovery of Overcharge of Freight. — It has been held
under this section that a cause of action against a carrier
for an overcharge of freight arises, whether ex delicto or
ex contractu, at the time and place of the actual payment
of the overcharge. If the cause of action is one ex con-
tractu, the contract upon which it is based was made and
was to be performed at the time and place where the over-
charge was paid. Drake v. Davis, 29 Ga. App. 790, 116 S.
E. 552.
Action for False Arrest of Passenger.— If, after the ar-
rest of a person stealing a ride, the train stops at a station
in another county, and the plaintiff is there delivered to
an officer and imprisoned, and if the detention, failure to
prosecute, or other act in such latter county gives rise to
a cause of action, this section, imperatively requires that
suit should be there brought. Summers v. Southern K.
Co., 118 Ga. 174, 45 S. E. 27.
Venue of Action for Homicide. — An action under § 4424
by a widow against a railroad company for the homicide of
her husband may, under this, section, be tried in the
county where the killing was done, although such county
is not that in which, by the charter, the principal place of
business of the company is located. Georgia Railroad &
Banking Co. v. Oaks, 52 Ga. 410.
No matter where the contract of employment by the
company with the agent was made, the homicide being
committed at the place where the agent was assigned to
duty, and where he was serving the company at the time
of the wrongful act, this section the cause of action origi-
nated at that place, and the superior court of that county
has jurisdiction. Christian v. Columbus & Rome R. Co.,
79 Ga. 460, 7 S. E. 216.
Election between Counties by Plaintiff to Contract. —
Under this section railroad companies are suable, on causes
of action arising upon contracts, either in the county in
which the contract is made, or in the county in which it
lis to be performed, at the option of the plaintiff. Central
of Ga. R. Co. v.. Crapps, 4 Ga. App. 550, 61 S. E. 1126.
Same — Assignee of Bill of Lading. — Under this section,
it has been held that where the assignee of a bill of lad-
ing has the option to sue the carrier either in tort or for
a breach of the contract, and elects the former remedy,
and the case is dismissed for want of jurisdiction, the elec-
tion to proceed in tort does not prevent a subsequent suit
on the contract. Louisville, etc., R. Co. v. Pferdmenges,
Preyer & Co., 8 Ga. App. 81, 68 S. E. 617.
Service on Agent. — Where a suit was brought against a
railroad company in the county where the injury com-
plained of took place, and the sheriff returned that he had
served a certain person as agent for defendant at the depot
in that county, and a second original of the declaration and
process also had been served upon the president of fhe
company, such service was sufficient. Mitchell v. South-
western Railroad, 75 Ga. 398.
Personal service upon a ticket-agent in charge of ticket
office of a railroad company, and selling tickets and hand-
ling passenger business for it is sufficient service. Seaboard
Air-Line Ry. v. Browder, 144 Ga. 322, 87 S. E. 6.
Pleading — Held Sufficient — It has been held under this
section that a declaration against a railroad company show-
ing upon its face that the company is duly chartered un-
der the laws of the State, and complaining that it damaged
the plaintiffs by constructing a railroad upon their land in
the county in which the suit is located, shows substantially,
though not in accurate form, that the railroad of the com
pany is wholly or partly in that county. East Ga. & F.
R. Co. v. King, 91 Ga. 519, 17 S. E. 939; Gilbert v. Georgia
R., etc., Co., 104 Ga. 412, 30 S. E. 673.
Same — Contract Action — Tn an action against a railroad
company on a contract instituted in a county other than
the one where its chief office of business is located, under
this section, the pleadings should show that the contract
was either made or was to be performed in the county
where such suit was brought. Corley & Dassett v. Georgia,
etc., R. Co., 49 Ga. 627.
Defect Is Amendable. — Failure to show jurisdiction, un-
der this section, is an amendable defect in a petition, and
unless such defect is challenged by demurrer, and op-
portunity given to amend, a dismissal entered for another
and different reason will not be upheld because of such
omission. Burton v. Wadlev Southern R. Co.. 25 Ga. App.
599. 103 S. E. 881.
Burden of Proof. — It has been held under this secticn
when a suit is brought against the Georgia Railroad Com-
pany, ex contractu, in a county other than Richmond, al-
though the defendant may plead to the merits, it is in-
[ 697 ]
2799
SUITS AGAINST RAILROADS AND ELECTRIC COMPANIES
2801
cumbent on the plaintiff to show that the contract was
made or to be performed in the county where the suit is
brought, and on failure of the plaintiff to make such proof,
the defendant may move to dismiss for want of jurisdic-
tion. Georgia Railroad & Banking Co. v. Seymour, 53 Ga.
500; Atlantic Coast Line R. Co. v. Guinnip, 23 Ga. App.
804, 99 S. E. 541.
Action of Tort in Justice Court.— For a tort to personal
property a railroad company must, under this section, be
sued in the county where the tort was committed, if the
company has an agent in that county. The action may be
brought in the justice's court of any militia district in
which the company's railroad is located. Southern R. Co.
v. Johnson, 96 Ga. 655, 23 S. E. 836.
Statute of Limitations Tolled by Suit in Wrong County.
—A suit brought in the wrong county, contrary to this sec-
tion, may be the basis of a renewed action, tolling the stat-
ute of limitations, as provided by § 4381. Lamb v. Howard,
150 Ga. 12, 102 S. L\ 436.
Applied in Central Railroad v. Flournoy, 69 Ga. 763;
Mitchell v. Southwestern Railroad, 75 Ga. 398, 406; South-
ern R. Co. v. Brock, 115 Ga. 721, 42 S. E. 65; Le Croix v.
Western, etc., R. Co., 118 Ga. 98, 44 S. E. 840; Southern R.
Co. v. Grizzle, 124 Ga. 735, 739, 53 S. E. 244; Atlanta, B. &
A. R. R. v. Atlantic Coastline R. Co., 138 Ga. 353, 75 S.
E. 468; Atkinson v. Olmstead, 140 Ga. 100, 78 S. E. 720;
Wright v. Southern R. Co., 7 Ga. App. 542, 67 S. E. 272;
Ocilla Southern R. Co. v. McAllister, 20 Ga. App. 400, 93
S. E. 26; Davis v. Seigel, 28 Ga. App. 418, 111 S. E. 439;
Taylor v. Central of Georgia R. Co., 31 Ga. App. 374, 382,
121 S. E. 348.
Cited in Hodges v. Atlantic, etc., R. Co., 51 Ga. 245;
Southern R. Co. v. Moore, 133 Ga. 806, 812, 67 S. E. 85;
Flint River, etc., R. Co. v. Sanders, 18 Ga. App. 766, 90 S.
E. 655; Griffler v. Southern R. Co., 30 Ga. App. 20, 21,
116 S. E. 655; Atlantic & Flint R. Co. v. Western R. Co.,
50 Fed. 790, 792.
§ 2799. (§ 2335.) Lessees liable to suit.— The
lessees of any railroad, or the person, or persons,
or company having possession of the same, shall
be liable to suit of any kind in the same court or
jurisdiction as the lessors or owners of the rail-
road were before the lease. Acts 1861, pp. 58,
59; 1862-3, p. 151.
Cross References.— See 11 Cum. Dig. 347, 12 Enc. Dig.
648. As to liability of lessee for burdens of lessor corpora-
tions, see § 2227. As to liability of lessor (railway) where
lease not recorded, see § 2599. As to notice by telegraph
company to lessee of railroad, under condemnation pro-
ceedings, see § 5237. As to impossibility of corporation to
dispense witn public duty, by sale or lease, see § 2228.
Identity of Roads Retained. — Although one railroad maj
be leased to and operated by another, by which in accord-
ance with this section, the latter makes itself responsible
for acts done on the road leased, yet neither loses its iden-
tity, and any tort committed upon the line of the one or
the other should be so alleged and proved. Especially is
this true where both roads are constructed through the
territory of the same county. Central R. Co. v. Brinson,
64 Ga. 475.
Foreign Corporations Within Section. — This section ap-
plies to foreign as well as domestic corporations. Breed v.
Mitchell, 48 Ga. 533; Williams v. East Tenn., etc., R. Co..
90 Ga. 519, 524, 16 S. E. 303.
Where a foreign corporation leases or operates a domes-
tic franchise, under this section, suit may be brought in
the county of the residence of the company owning the
franchise. Coakley v. Southern R. Co., 120 Ga. 960, 48 S.
E. 372.
Venue of Tort Where Line Operates Partly in Another
State. — The lessee of a line of railroad partly within this
State and partly within the State of Alabama is subject to
an action here, in accordance with this section, by an em-
ployee for a personal injury sustained in Alabama whilst
engaged in his duties as an employee upon the line. Wat-
son v. Richmond, etc., R. Co., 91 Ga. 222, 18 S. E. 306.
Section Not Applicable to Lessee of Western Railroad. —
An action against the lessee of the Western & Atlantic
Railroad was governed by the act of 1889. This section did
not apply in such a case. Nashville, Chattanooga, etc.,
R. Co. v. Edwards, 91 Ga. 24, 25, 16 S. E. 347.
Service of Summons. — Under this section, service ol
summons in an action against a lessee railroad company
by leaving a copy at the office of the superintendent in /
the county in which the declaration alleges were and are
situated the principal offices of the lessor and lessee, is
good. Hills v. Richmond, etc., R. Co., 37 Fed. 660.
Evidence of Lease. — Under this section, it has been helc
that the fact of the lease could be proved without produc-
ing the writing. Central Railroad v. Whitehead, 74 Ga,
441.
Applied in Logan & Co. v. Central Railroad, 74 Ga. 684
685.
§ 2800. (§ 2336.) Service on lessee road.— When
any person or corporation is sued as lessee
of a railroad, service of writ, summons, or other
process, by delivering a copy thereof to the de-
pot agent or other officer of such lessee in the
county where suit is pending, or by leaving 1
copy at the place of transacting the usual and
ordinary public business of such lessee in said
county, shall be deemed sufficient service. Acts
1884-5, p. 49.
As to service on corporations, generally, see § 2258. As
to liability for lessee for burdens of lessor corporation, see
§ 2227.
Single Service though Defendant Sued in Double Capa-
city.— Under this section, it has been held that where at
corporation is sued in its corporate name generally, and also!
as lessee of another corporation, for a tort committed]
jointly by the corporation individually and as lessee, service]
of process properly made upon an agent of the corporation!
is good against it in both capacities. Snipes v. Atlanta &j
West Point R. Co., 7 Ga. App. 700, 67 S. E. 1046.
Prior Law. — Leaving a copy of a declaration and process
with a depot agent is not sufficient service on an individual
lessee of the railroad. Jones v. Georgia Southern Railroad,
66 Ga. 558. See also 11 Enc. Dig. 525.
§ 2801. (§ 2337.) Service on leasing railroad. —
Whenever any railroad company incorporated
under the laws of this State, or whose line of
road may extend into this State, may have leased
their line of road to any person or corporation,
and if said lessee or lessees are in possession of
said road, service on such leasing company may
be perfected as follows: The plaintiff shall file
with the clerk of the court, judge of the county
court, or justice of the peace, where such suit is
commenced, a notice in writing, directed to the
president of the leasing company, informing him
fully of the pendency of such suit and its nature,
which shall be enclosed in a stamped envelope
to be furnished by and at the expense of the
plaintiff, and sent by said clerk, county judge, or
justice through the mail to the president of the
leasing company, at his residence, at least fif-
teen days before the appearance term; and said
clerk, judge, or justice shall, in addition, deliver
to the sheriff or constable a copy of the writ or
summons, who shall serve the same on the de-
pot agent of said lessees, and make return there-
of as in other cases. Acts 1889, p. 137.
Cross References.— See 10 Cum. Dig. 248, 11 Enc. Dig.
525. As to liability of lessor corporation after sale or lease,
see § 2228. As to effect of failure to record lease on liability
of leasing railroad, see § 2599.
Editor's Note. — The legislature, in 1876, (see acts 1876,
p. 121) passed an act that was similar to the provisions of
this section. The act was repealed by an act passed in
1885. (Acts 1884-5, p. 49). See Atlanta, etc., Ry. v. Har-
rison & Bros., 76 Ga. 757.
Section Is Constitutional. — The provisions for perfecting
service on leasing railroads, as set forth in this section, do
not contravene the State constitution in respect to due proc-
ess of law, nor the Federal constitution on the like sub-
ject, nor the latter constitution as to the equal protection
of the law. Georgia R. & Banking Co. v. Bennefield, 138
Ga. 670, 75 S. E. 981.
Section Is Cumulative. — This section is merely cumu
lative, and provides another and different method of serv-
ice from that provided for in § 2798, to be resorted to
where it is desired to bind both the lessor and the lessee.
Southwestern R. Co. v. Vellines, 14 Ga. App. 674, 682, 82
S. E. 166.
Tort Committed by Agent of Lessee. — Under this sec-
tion, the court of the county where a cause of action origi-
[698]
§ 2802
TELEGRAPH AND TELEPHONE COMPANIES
§ 2807
nated against a lessor railroad company, by reason of the
tort of an agent of the lessee company, has jurisdiction of
the lessor company, though it has no agent or place oi
business in that county, but its office and principal place
of business is in a different county in this State. Georgia
R. & Banking Co. v. Bennefield, 138 Ga. 670, 75 S. E. 981.
§ 2802. (§ 2338.) If president's address un-
known.— If the residence of the president of the
leasing company is unknown to the party and to
his attorney bringing such suit, an affidavit
showing the fact, filed together with the declara-
tion, shall be sufficient, instead of notice to the
president, required in the preceding section:
Provided, that the plaintiff shall not be com-
pelled to bring suit against any such lessee and
give the notice as herein provided, but may do
so at his option; but when such notice is given
to the lessee, the judgment rendered in said suit
shall be as binding upon the lessee as though
service had been made as now provided by law
for service upon railroad companies.
Stated in Southwestern R. Co. v. Vellines, 14 Ga. App.
674, 682, 82 S. 3. 166.
ARTICLE 7.
Telegraph and Telephone Companies.
SECTION 1.
Telegraph Companies, Their Incorporation.
§ 2803. (§ 2339.) Telegraph companies, how in-
corporated.— All corporate powers and privileges
hereafter granted to telegraph companies in this
State shall be granted in the manner following:
Cross References. — As to control of telegraph companies
by the railroad commission, see § 2660. As to qualifica-
tions of railroad telegraph-operators, see § 2690. As to
amendment of charters of telegraph companies, see § 2197.
As to procedure to change name or capital stock, or place
of business by telegraph companies, see § 2201. As to duty
of corporations to file annual returns, see § 2209.
§ 2804. (§ 2340.) Declaration filed with secre-
tary of State. — Whenever any number of per-
sons, citizens of the United States, not less than
five, shall propose to form a corporation for
constructing, equipping, and operating any tele-
graph-line, or for carrying on the business of
telegraph}-, they shall make and file in the office
of the secretary of State a written declaration to
that effect, under their hands and seals, duly at-
tested in the same manner as is required by law
For the attestation of deeds to land in this State,
setting forth the name of the corporation pro-
posed, the object for which it is formed, its pro-
posed capital stock, the number of shares of
such capital stock, the places from and to which
such telegraph-line is intended to be constructed,
equipped, and operated, or, if already con-
structed, then the place from and to which the
same is intended to be operated, giving as nearly
as practicable the county or counties, as well as
the cities, towns, and villages through which it
may or does pass; the location of the principal
office thereof, which shall be in this State; the
time of commencement and duration of said
corporation, which shall not exceed fifty years;
the name and the residence of each applicant.
Said applicants shall then pay to the treasurer
of the State a fee of one hundred dollars, and
file with the secretary of State the treasurer's
certificate of the fact of the payment of such
fee. The secretary of State shall then issue to
said applicants a license as commissioners to
open books of subscription to the capital stock
of said corporation at such times and places as
a majority of said commissioners may determine
after having given public notice of the same in
one or more of the public gazettes of this State
for at least two weeks. Acts 1893, p. 86.
§ 2805. (§ 2341.) Meeting of subscribers for
organization, etc. — As soon as may be after the
capital stock shall have been fully subscribed, the
commissioners shall convene a meeting of the
subscribers to the capital stock of said corpora-
tion, for the purpose of electing directors, and
the transaction of such other business as may
come before them. Notice thereof shall be given
by depositing in the post-office, properly ad-
dressed to each subscriber, at least ten days be-
fore the time fixed, a written or printed notice
stating the object, time, and place of such meet-
ing. In all elections for directors of the pro-
posed corporation, each subscriber to the capital
stock shall be entitled to one vote for each share
of the capital stock subscribed for by him or
her, which may be cast in person or by written
proxy.
§ 2806. (§ 2342.) Report of meeting of incor-
porators.— The commissioners shall make a full
report of their proceedings and of the proceed-
ings of the meeting of the stockholders, includ-
ing therein a copy of the notice provided in the
preceding section, a copy of the list of subscrib-
ers, with a statement of their respective resi-
dences and the number of shares subscribed for
by each, the names and residences of the direct-
ors elected at the stockholders' meeting, and
their respective terms of office; which said re-
port shall be sworn to by at least a majority of
the commissioners and be filed with the secre-
tary of State. The Secretary of State shall there-
upon issue a certificate of the complete organization
of said corporation, duly authenticated under his
official signature and the seal of the State, and the
same shall be recorded in his office in a book for
that purpose, for which the usual recording fee
shall be paid, and also in the office of the clerk of
the superior court of the county in which shall be
located the principal office of the corporation. The
clerk of the superior court so recording such pro-
ceedings shall be paid by said corporation a fee of
ten cents per one hundred words. Upon the record-
ing of such proceedings in the manner hereinbe-
fore required, said corporation shall be deemed
fully organized and become and be duly incor-
porated under the corporate name set forth in
the written declaration of file in the office of the
secretary of State, and is then authorized to pro-
ceed to business. But unless such corporation
shall have so completed its organization within
two. years after the date of the filing of the writ-
ten declaration for that purpose in the office of
the secretary of State, the license to the commis-
sioners shall be held and deemed revoked and
forfeited.
§ 2807. (§ 2343.) Powers of corporation. — Cor-
porations created under and by virtue of the pro-
visions of this Article shall exist and have and
enjoy succession under their respective corporate
names, and under such names, respectively, may
[ 699 ]
§ 2808
CONSTRUCTION OF TELEGRAPH AND TELEPHONE LINES
§ 2811
make and enter into contracts, sue and be sued,
purchase and hold such real, mixed, or personal
property as may be required for the purposes of
said corporation within the scope of its business,
and the same, with all rights and privileges there-
with connected, to sell, alien, mortgage, pledge,
and convey, or otherwise dispose of under the
corporate name, and make and establish such
by-laws, rules, and regulations for its govern-
ment as may be requisite or necessary; to have
and use a corporate seal, and the same to alter
at pleasure, and to appoint such officers or agents
as may be necessary for the proper management
of the affairs of such corporation. Such corpora-
tion shall also have power to erect and maintain
telegraph and dispatch lines in and throughout
the State of Georgia, or elsewhere in the United
States of America, with all necessary stations,
offices, apparatus, improvements, and machinery,
and to employ the same with any new inven-
tions which may from time to time be acquired,
in the rapid transmission, for remuneration and
profit, of information, messages, and intelligence,
by means of electric agencies and magnetic tele-
graph, to and from the various places and sta-
tions on the telegraph-line of such corporation.
As to assent of railroad commission to municipal ordi-.
nances over telegraph companies, see § 2662.
§ 2808. (§ 2344.) Condemnation of private
property. — Such corporation shall have the right
and power to condemn land or other property
necessary for the construction and operation of
their telegraph-lines, which condemnation shall
be made as provided in this Code.
Cross References. — See 10 Cum. Dig-. 864. As to authority
of corporations to take private property, see § 5206. As to
construction of telegraph or telephone lines, see § 2811. As
to proceedings of condemnation by telegraph company, see
§§ 5236-5239.
SECTION 2.
Construction of Telegraph or Telephone Lines.
§ 2809. (§ 2345.) Telegraph companies may oc-
cupy right of way of railroads. — Any person or
any duly incorporated telegraph company having
the right to do business in this State shall have
the right to construct, erect, and maintain upon
the right of way of the several railroad com-
panies in this State, and along the lines there-
of, their posts, fixtures, and wires, and to operate
the same. Acts 1873, p. 69.
§ 2810. (§ 2340.) Such occupation regulated.—
Said fixtures, posts, and wires shall be erected
at such distances from the tracks of said rail-
roads as will prevent any and all damages to
said railroad companies by the falling of said
fixtures, posts, or wires upon said railroad tracks;
and such telegraph companies shall be liable to
said railroad companies for all damages result-
ing from a failure to comply with the provisions
of this section. Acts 1873, p. 69.
§ 2811. (§ 2347.) Construction of telegraph or
telephone-linies. — Any telegraph or telephone
company, chartered by the laws of this or any
other State of the United States, shall have the
right to construct, maintain, and operate tele-
graph and telephone-lines, or both, upon, under,
along, and over the public highways of this
State, with the approval of the county or munici-
pal authorities in charge of such highway; and,
upon making due compensation, shall have the
right to construct, maintain, and operate tele-
graph or telephone-lines, or both, through or
over any lands of this State, and on, along, and:
upon the right of way and structures of any
railroads, and, where necessary, under or over
any private lands in this State, and to that end
may have and exercise the right of eminent do-
main: Provided, that the posts, arms, insulators,
and other fixtures of such lines be so erected,
placed, and maintained as not to obstruct or in-
terfere with the ordinary use of such public
highways, railroads, or with the convenience of
any landowners, more than may be unavoidable:
Provided further, that where it is necessary for
such companies to exercise the right of eminent
domain, they shall proceed to exercise the same
in the same manner as heretofore provided by
law for the exercise of such right of eminent
domain by telegraph companies: and further
provided, that no corporation, person, or part-
nership shall have the benefit of this section un-
til it has filed with the railroad commission of
the State its, his, or their consent that the said,
railroad commission shall have jurisdiction over
said person, partnership, or corporation for the
purpose of regulating tolls charged on long-dis-
tance messages originating and ending within
the State of Georgia, and rents or tolls for use
of the telephone-lines of said person, partner-
ship, or corporation, in so far as the same are
used for conducting the intrastate business of the
said person, partnership, or corporation. And
all the powers given to the said commissioners
over telegraph companies in this State, and all
the penalties prescribed against telegraph com-
panies, or persons operating telegraph companies,
are hereby declared to be of force against cor-
porations, companies, and person or persons con-
trolling, owning, or operating a line or lines of
telephone companies doing business in this
State, whose line or lines is or are wholly or in
part in this State, so far as said provisions can
be made applicable to corporations, person, or
persons controlling, owning, or operating a tele-
phone-line or lines, but these provisions shall
apply only to such persons, partnerships, or com-
panies owning, operating, or controlling the tele-
phone companies who have accepted the benefits
of the provisions of this section: Provided, that
all laws fixing the method in which telegraph
poles, posts, fixtures, or wires shall be set up are
made applicable to all telephone companies doing
business in this State, and that all liabilities fixed
against telegraph companies for damages re-
sulting from a failure to properly set up their
fixtures, posts, or wires along any highway or
railroad shall be and are hereby made applicable
to all telephone companies doing business in this
State: Provided further, that any lines con-
structed on the right of way of any railroad
company shall be relocated to conform to any
uses and needs of said railroad company for rail-
road purposes. Acts 1889, p. 141; 1905, p. 79.
Cross References.— See 10 Cum. Dig. 864, 12 Enc. Dig.
163. As to right of telegraph company to condemn private
property, see § 2808. As to power of corporations to take
private property, generally see § 5206. As to control of
telegraph companies by the railroad commission, see §§
2660, 2662. As to procedure by telegraph companies to con-
[ 700]
2812
TRUST COMPANIES
§ 2815
lemn right of way belonging to railroad, see §§ 5236-5239.
\s to necessity of just compensation where private ways
ire granted, see § 6388.
Condemnation of State Property.— Although this section
:xpressly declares that any chartered telegraph company
nay exercise the right of eminent domain over the bonds
)f this state, the legislature has not enacted any statute
naking this declaration effective. Hence, a right of way
)elonging to the Western and Atlantic R. R. is not sub
ect to this procedure. Western Union Tel. Co. v. Western,
:tc, R. Co., 142 Ga. 532, 83 S. E. 135 overruling same case,
'38 'Ga. 420, 75 S. E. 471, headnote 6.
Telegraph Company Not Consenting to Jurisdiction of
Zommission.— The provisions of this section, about filing a
:onsent to submit to the jurisdiction of the railroad com-
nission, are not applicable to telegraph companies. West-
ern & A. R. Co. v. Western Union Tel. Co., 138 Ga. 420,
125, 75 S. E. 471.
Cited in Chestatee Co. v. Cavenders Co., 119 Ga. 354,
157, 46 S. E. 422.
SECTION 3.
Duties as to Transmitting and Delivering Mes-
sages.
§ 2812. Good faith, impartiality, diligence, re-
niired. — Every electric telegraph company, with
1 line of wires wholly or partly in this State, and
jngaged in telegraphing for the public, shall,
luring the usual hours, receive dispatches or
nessages, whether from other telegraphic lines
)r from individuals, and on payment or tender of
he usual charge according to the regulations of
mch company shall transmit and deliver the
same with impartiality and good faith and with
lue diligence, under penalty of twenty-five dol-
ars, which penalty may be recovered by suit in
1 court having jurisdiction thereof, by either
:he sender of the dispatch or message or the
person to whom sent or directed, whichever may
sue first: Provided, that nothing herein shall be
;onstrued as impairing or in any way modifying
the right of any person to recover damages for
my breach of contract or duty by any telegraph
company, and said penalty and said damages
may, if the party so elect, be recovered in the
same suit. Acts 1908, p. 94.'
Cross References.— See 10 Cum. Dig. 861, 875. As to con-
demnation of private property by telegraph companies, see
§ 2808. As to authority of corporations to take private
property, see § 5206. As to control of telegraph companies
by the railroad commission, see §§ 2660, 2662. As to duty
of common carrier to receive goods, see § 2729. As to lia-
bility of carrier for delay in transportation, see § 2736.
Editor's Note In 1887, an act similar to the provisions
of this section, but prescribing a penalty of $100, was
passed. (See Acts, 1887, p. 111.) By an amendment passed
in 1892 (see Acts 1892, p. 96), the penalty was reduced to $50.
This act was constitutional. See Western Union Tel Co.
v. James, 162 U. S. 650, 16 S. Ct. 934, 40 L. Ed. 1105. The
Act of 1887 was repealed in 1894, (See Acts, 1894, p. 79).
Cases construing this Act will be found in 12 Enc. Dig.
169.
Presentation of Claim Under Section. — Where a suit for
the recovery of the penalty provided for in this section and
§ 2813, is brought within sixty days after the message is
filed with the company for transmission, no other or
further presentation of the claim is necessary. Petty v.
Western Union Tel. Co., 138 Ga. 314, 75 S. E. 152.
Questions for Jury. — See Western Union Tel. Co. v.
Travis, 144 Ga. 110, 86 S. E. 221; Cheshire v. Western
Union Tel. Co., 16 Ga. App. 790, 86 S. E. 405.
§ 2813. Messages delivered, when. — Such com-
panies shall deliver all dispatches or messages
to the persons to whom the same are addressed
or to their agents, on payment of any charges
due for the same: Provided, such persons or
agents reside within one mile of the telegraphic
station, or within the city or town in which such
station is located.
See 10 Cum. Dig. 861, 876.
Inference by Jury from Pleading.- -Although it is not ex-
pressly stated in the evidence that the telegraphic station
of the defendant company was located in the city at the
time the message was sent, the jury might have inferred
from the fact that the agent of the defendant company
in another city, the point from which the message was
sent, received a message directed to the first mentioned
city, that the station was then located within that city.
Petty v. Western Union Tel. Co., 138 Ga. 314, 316. 75 S.
E. 152.
SECTION 4.
Suits Against Telegraph Companies.
§ 2814. (§ 2348.) Telegraph companies, where
suable. — Whenever any person may have any
claim or demand upon any telegraph company
having offices or more than one place of doing
business in this State, it shall be lawful for such
person or persons to institute suit against such
telegraph company within the county where the
principal office of such company is located, or in
any count}' where such telegraph company may
have an agency or place of business, or where
such place of business was located at the time
the cause of action accrued, or the contract was
made out of which said cause of action arose. In
all suits brought under the provisions of this
section, service shall be effected upon such tele-
graph company by leaving a copy of the writ
with the agent of the company, if any; if no such
agent should be in the county, then at the
agency, or place of doing business, where the
same was located at the time such cause of ac-
tion accrued, or the contract was made out of
which the same arose. Acts 1880-1, p. 115.
See 10 Cum. Dig. 860. As to service on corporations
generally, see § 2258.
Pleadings Held Sufficient. — A petition against a tele-
graph company, alleging that it has "an office and agent
in (the) county, doing business therein," sufficiently shows
jurisdiction in the courts of the county, under this section.
Western Union Tel. Co. v. Bailey. 115 Ga. 725. 42 S. E. °>9.
ARTICLE 8.
Trust Companies.
SECTION 1.
Their Incorporation.
§ 2815. How incorporated. — Any number of
persons, not less than five, may associate them-
selves together for the purpose of organizing a
trust company in accordance with the provisions
of this Article. The persons so desiring to be-
come incorporated shall file in the office, of the
secretary of State a declaration in writing, signed
by each of them, stating their names and resi-
dences, the name and style of the proposed cor-
poration, the location of the principal business
thereof, the amount of capital stock, and such
other matters as they ma}- deem it desirable to
state. Such declaration must be accompanied by
the affidavit of at least three of the subscribers
that at least twenty-five thousand dollars of the
capital stock subscribed has been actually paid
in bjr the subscribers and that the same is in
fact held and is to be used solely for the business
and purposes of the corporation. A fee of fifty
[701]
§ 2816
POWERS OF TRUST COMPANIES
§ 2817
dollars shall be paid on filing the application in-
to the treasury, and the secretary of State shall
not issue any charter before its payment. Acts
1898, p. 78.
Cross References. — ■ See 2 Cum. Dig. 624. As to how
corporate powers are granted, see § 6446. As to power of
banking bureau over trust companies, see § 2279. As to
duty of trust companies to conform with banking laws, see
§ 2286. As to reports to be filed by trust companies, see
§ 2288. As to examination of trust companies, see § 2299.
As to powers of state bank examiner, see § 2305. As to
forfeiture of charter where lawful requirements of bank
examiner not complied with, see § 2347.. As to annual re-
turns of corporations, see § 2209.
Section is Constitutional.— This section authorizing the
secretary of State to grant charters to trust companies with
banking privileges, is constitutional. Mulherin v. Kennedy,
120 Ga. 1080, 48 S. E. 437.
Trust Company Not a "Chartered Bank" Within Penal
Laws. — A trust company incorporated under the provisions
of this section is not a "chartered bank," within the mean-
ing of the penal laws of this State relating only to such
banks. Dunn v. State, 13 Ga. App. 314, 79 S. E. 170.
Cited in In re Supreme Lodge, 286 Fed. 180, 181.
§ 2816. Notice; certificate of incorporation. —
Before filing the declaration, as provided in the
preceding section, a notice of intention to organ-
ize such trust company shall be published at
least once a week for four weeks in a newspaper
of general circulation, published in the city in
which the principal office of the proposed corpo-
ration will be located, which notice shall specify
the names of the proposed corporators, name of
the proposed trust company, and the location of
the same. When such declaration shall have
been filed and notice of intention shall have
been published as herein provided, the secretary
of State shall issue to the subscribers, their as-
sociates, and successors, a certificate of incor-
poration under the seal of the State, certifying
that the subscribers, their associates, and suc-
cessors are a body politic and corporate under
the name and style designated in the declaration,
and that such corporation has the capacity and
powers conferred, and is subject to all the duties
and liabilities imposed by law. The secretary
of State shall record the declaration, affidavit,
and certificate of incorporation.
SECTION 2.
Their Powers.
§ 2817. Corporate powers. — All trust companies
organized under this Article are corporations
possessed of the powers and functions of corpo-
rations generally, and as such shall have power —
1. To make contracts.
2. To sue and be sued, complain, and defend,
in any court, as fully as natural persons.
3. To act as the fiscal or transfer agent of any
State, municipality, body politic, or corporation,
and in such capacity to receive and disburse
money, and transfer, register, and countersign
certificates of stock, bonds, and other evidences
of indebtedness.
4. To receive deposits of trust moneys, securi-
ties, and other personal property from any per-
son or corporation, and to loan money on real
estate or personal securities.
As to deposits by interstate building and loan associa-
tions, see § 2883. As to redemption fund of investment
companies, see § 2899
5. To lease, purchase, hold, and convey any
and all real estate necessary in the transaction
of its^ business, or which the purposes of the cor-
poration may require, or which it shall acquire in
satisfaction or partial satisfaction of debts due
the corporation under sales, judgments, or mort-
gages, or in settlement or partial settlement of
debts due the corporation by any of its debtors.
6. To act as trustee under any mortgage or
bond issued by any government, State, municipal-
ity, body politic, or corporation, and accept and
execute any other municipal or corporate trust
not inconsistent with the laws of this State.
As to appointment of new trustee when old trustee fails
to act, see § 3747. As to enforcement of trust deeds to
secure debts, see § 3311. As to retention of surplus of en-
forced trust deed to meet instalment debts, see § 3317.
7. To accept trusts from and execute trusts
for married women in respect to their separate
property, whether real or personal, and to be
their agent in the management of such property,
or to transact any business in relation- thereto.
As to what constitutes a wife's separate property, see §
2993. As to creation of a trust estate for a wife, see §
3730. As to conveyances by husband to wife during covert-
ure, see § 3000. As to appointment and removal of trustee
of wife's estate, see § 3004. As to powers of wife over her
separate property, see § 3007.
8. To act under the order or appointment of
any court of record as guardian, receiver, or
trustee of the estate of any minor, the annual in-
come of which shall not be less than one hundred
dollars and as depository of any moneys paid in-
to court, whether for the benefit of any such
minor or any other person, corporation, or party.
As^ to appointment of general guardian selected by ward,,
see § 3035. As to appointment of collateral heirs as guard-
ians, see § 3037.
9. To take, accept, and execute any and all
such legal trusts, duties, and powers in regard
to the holding, management, and disposition of
any estate or property, real or personal, and the
rents and profits thereof, or the sale thereof, as
may be granted or confided to it by the superior
court, or by any other court of record, or by any
person, corporation, municipality, or other au-
thority, and the said corporation shall be ac-
countable to all parties in interest for the faithful
discharge of every such trust, duty, or power i
which it may so accept.
As to power of judge in chambers to control trusts, see § !
3744. As to power of corporations to act as trustees of a
charitable trust, see § 2840.
10. To take, accept, and execute any and all
such trusts and powers, of whatever nature or
description, as may be conferred upon or en-
trusted or committed to said company by any
person or persons, or any body politic, corpora-
tion, or other authority, by grant, assignment,
transfer, devise, bequest, or otherwise, or which
may be entrusted, or committed, or transferred
to or invested in said company by order of the
superior court or any other court of record, or
any ordinary, and to receive and take and hold
any property or estate, real or personal, which
may be the subject of any such trust.
As to provisions concerning trust deeds to secure debts,
see §§ 3311-3317.
11. To purchase, invest in, and sell stock, bills
of exchange, bonds and mortgages, and other
170
Cited in Dunn v. State, 13 Ga. App. 314, 319, 79 S. E. securities; and when moneys or securities for
' moneys are borrowed or received on deposit or
[ 702 ]
2817
ORGANIZATION AND MANAGEMENT
§ 2818
»r investment, the bonds or obligations of the
mipany may be given therefor; but nothing
>rein contained shall be construed as giving the
ght to issue bills to circulate as money.
12. To be appointed and accept the appoint-
tent of executor or of trustee under the last will
id. testament or administrator with or without
le will annexed, of the estate of any deceased
arsons, and to be appointed and to act as the
)mmittee of the estate of lunatic, idiots, persons
: unsound mind and habitual drunkards.
As to definition of administration with will annexed,
:e § 3940. As to division of good from bad parts of will,
•,e § 3833. As to rules for granting letters of administra-
on, see § 3943.
Powers Under Sections Are Incidental. — The powers,
mferred by this section, are merely incidental to the
ain object, which is to authorize bodies corporate to act
> guardian, executor, receiver, or other trustee, and as
tch to exercise certain incidental powers, some of which
■e also performed by banks. Dunn v. State, 13 Ga. App.
.4, 319, 79 S. E. 170.
Applied in Mulherin v. Kennedy, 120 Ga. 1080, 1081, 43
, E. 437.
13. To engage in the business of guaranteeing
le payment of bonds and notes secured by mort-
age or deed to real estate within the State of
eorgia; provided, that every such company
mst, before it may issue any such guarantee,
;t apart an amount of not less than $50,000 in
tiy case, as a guaranty fund, which said guaranty
ind shall be maintained unimpaired so long as
tiy guaranty is outstanding.
Editor's Note. — This paragraph is a codification of one
t the acts of 1917. [See Acts 1917, p. 56.]
14. To engage in the business of certifying to
le ownership of title to real property or fur-
ishing information relative thereto, or of guar-
nteeing such titles or of guaranteeing owners
f real property or other persons interested
herein against loss by reason of defective titles
r incumbrances thereon or adverse claim of
tie; provided that every such company must,
efore it may issue any title guarantee policy or
uaranteed certificate of title, set apart an
mount not less than one-third of its capital and
urplus, and not less than $50,000 in any case, as
guaranty fund, which said guaranty fund shall
I maintained unimpaired so long as any title
;uarantee policies or guaranteed certificates of
itles are outstanding.
Editor's Note. — This paragraph is a codification of one
if the amendatory acts of 1917. [See Acts 1917, pp. 56,
<2.]
15. No trust company organized under the pro-
risions of this article shall exercise any of the
ights and powers conferred until at least fifty
housand dollars of the capital stock shall have
>een subscribed and paid in, nor shall such com-
>any receive deposits subject to check on de-
nand or discount commercial paper unless and
intil such company shall have complied with
he laws of this State regulating the incorpora-
ion of banks; but such company may acquire
ind exercise all the rights and privileges and be
mbject to the same liabilities and restrictions as
ipply to banks upon compliance with the laws
)f this State providing for the incorporation and
"egulating the business of banks.
As to methods of incorporating banks, see § 2262. As
to regulations of trust companies by the bank examiner.
see § 2286.
Editor's Note.— By an amendment in 1920, [Acts 1920, p.
771, it was provided that the amount of stock subscriptions
required before a company could start business should be
fifty thousand dollars, instead of one hundred thousand
dollars.
16. Every such company exercising the powers
granted by paragraph 13, or those granted by
paragraph 14, aforesaid, may invest the guaranty
fund therein provided for in legally issued bonds
or securities of the United States, or of any
State thereof, not estimated above their current
market value; or in legally issued bonds, war-
rants or securities of any county, incorporated
city, or town, or school district in this State, not
estimated above their par value, or their current
market value; or in lawful bonds and notes se-
cured by mortgage or deed creating first lien on
real estate^within this State, .and where buildings
constitute a material part of the value of the
mortgaged premises they shall be kept insured
against loss or damage by fire; such guaranty
fund and the securities evidencing the same from
time to time shall be deposited with the State
Treasurer or with sqme trust company or one
of the State depositories selected by the com-
pany so depositing them and approved by the
State Treasurer, as custodian, such custodian
giving proper receipts therefor.
Editor's Note. — This paragraph was taken from the
amendatory act of 1917. [See Acts 1917, p. 56.]
17. Every such company exercising the powers
granted by paragraph 13 or those granted by
paragraph 14, aforesaid, shall make at least one
report each year, and oftener if called upon by
the State bank examiner, and in the same manner
and subject to the same penalties as required of
trust companies engaged in the banking busi-
ness. Acts 1917, pp. 56, 57; 1920, pp. 76, 77.
Editor's Note. — This paragraph was taken from the
amendatory act of 1917. [See Acts 1917, p. 56.]
SECTION 3.
Organization and Management.
§ 2818. Trustees, their election. — The affairs of
said company shall be managed and its corporate
power exercised by a board of trustees of such-
number, not less than five nor more than twenty-
five, as shall from time to time be prescribed by
its by-laws. The persons named in the declara-
tion of organization shall constitute the first
board of trustees of the said company, and may
add to their number not exceeding the limit
of twent3'-nve, and shall severally continue in
office until others are elected to fill their places.
The election of trustees shall be held annually
at the office of the company, in such manner and
at such time as shall be prescribed in the by-
laws. In the case of failure to elect on the day
named, the shareholders may adjourn to another
time, or, in the event of their failing so to do,
the president may call a special meeting for the
purpose of electing trustees, of which special
meeting ten days notice shall be given by pub-
lication in at least one newspaper of general cir-
culatio/n in the city in which such company is
located. The vacancies occurring in the inter-
vals of election shall be filled by the board of
trustees. Acts 1917, p. 62.
Editor's Note. — This section was amended in 1917, [see
Acts 1917, p. 62], by a provision that the maximum num.
ber of trustees shall be twenty- five instead of fifteen.
[ 703 ]
§ 2819
OTHER CORPORATIONS MAY ACQUIRE LIKE POWERS
§ 2821(3)
§ 2819. Powers of trustees. — The trustees shall
have power from time to time to make and es-
tablish such by-laws, rules, and regulations, not
inconsistent with the laws of this State or the
United States, as they shall deem expedient for
the conduct and management of the business,
affairs, and property of such company. They
shall elect one of their number president of the
board, and may elect or appoint such other offi-
cers and agents as they may deem proper, and
fix their compensation.
§ 2820. Capital stock. — The capital stock of the
trust company may be increased from time to
time by a vote of two-thirds of the shareholders
present at any regular annual meeting or special
meeting called for that purpose. Provided, the
two-thirds of the capital stock amounts to a
majority of the capital stock. The capital stock
shall be divided into shares of one hundred dol-
lars each, which shares shall be deemed personal
property and shall be transferable in such man-
ner as shall be prescribed by the by-laws of the
company. Acts 1923, p. 58.
As to definition of personalty, see § 3646, as to transfer of
shares generally, see § 2219.
Editor's Note. — This section was amended in 1923 (Acts
1923, p. 58). The words "to a sum not exceeding two mil-
lion dollars," in the last line of the first sentence were
stricken out.
SECTION 4.
Other Corporations May Acquire Like Powers.
§ 2821. How other corporations may acquire
rights. — Any savings bank, trust, security, or
guarantee company having a paid-in capital of
not less than one hundred thousand dollars,
heretofore incorporated by the General Assembly
of this State, with authority to exercise any trust
powers, may acquire all the rights, privileges,
and immunities with the same restrictions as
are specified in Section 2, paragraph 2817, in the
following manner: The shareholders at any
regular or special meeting called for that pur-
pose may, by a vote of two thirds of the stock-
holders present, pass a resolution declaring their
desire to acquire the rights, privileges, and im-
munities, subject to the restrictions, specified in
said paragraph; which resolution shall be certi-
fied by the president and secretary or treasurer
of the corporation, and filed with the secretary
of State. Whereupon the secretary of State
shall issue a certificate declaring that such reso-
lution having been filed, such corporation has
become vested by law with all the rights, powers,
and privileges, and subject to the restrictions,
conferred, defined, and limited by Section 2 of
this Article. The corporation filing such resolu-
tion shall pay into the treasury of the State a
fee of twenty-five dollars, and the Secretary of
State shall cause said resolution and his certifi-
cate to be duly recorded.
Editor's Note. — This section was affected by the Acts
1910, p. 98. This act is found codified as sections 2821 (10)
to 2821 (14) inclusive. In 1917, [Acts 1917, pp. 81, 84], this
section was again amended. This act is codified as sec-
tions *2821 (1) to 2821 (9) inclusive.
Cited in Dunn v. State, 13 Ga. App. 314, 320, 79 S. E.
170.
§ 2821(1). Powers of trust companies may be
acquired by banking company. — Any banking
company, heretofore or hereafter incorporated
under the Constitution and laws of this State,
having and exercising the rights, powers and
privileges incident to banks, and having not less,
than one hundred thousand dollars ($100,000.00)
of capital stock subscribed and paid in, may ac-
quire all the rights, powers, privileges and im-
munities, subject to the liabilities and restrictions
conferred and imposed upoin trust companies by
§§ 2815-2821, in the manner hereinafter provided.
Acts 1917, pp. 81, 82.
This act is a recognition of the fact that at least prior
to the act of 1898 the superior courts could grant charters
to companies to perform many, if not all, of the functions
exercised by trust companies under the act of 1898. Dunri
v. State, 13 Ga. App. 314, 319, 79 S. E. 170.
§ 2821(2). Petition; exhibits; certificate; sign-
ing and sealing. — Any such incorporated 'banking
company, desiring to acquire the aforesaid rights,
powers, privileges and immunities, shall file with
the Secretary of State its petition setting forth:
(a) The name of such banking company, when
and by what authority incorporated and. its prin-
cipal place of business;
(b) That it has a paid-in capital of not less than
one hundred thousand" dollars ($100,000.00);
(c) That a resolution has been adopted by a
majority vote of its board of directors express-
ing the desire that such banking company acquire
the rights, powers, privileges and immunities, sub-
ject to the liabilities and restrictions, of trust
companies under §§ 2815-2821.
And there shall be attached to said petition as
exhibitions:
(1) The certificate of the ordinary of the county
in which the principal office of such banking com-
pany is located or, in the absence or disability of
the ordinary, the certificate of such other official
as may be authorized by law to perform the duties
of the ordinary, to the effect that he is satisfied,
after investigation, that the petitioning banking
company has a paid-in capital of not less than onfe
hundred thousand dollars ($100,000.00).
(2) A copy of the resolution of its board of di-
rectors, expressing the desire to acquire such
rights and privileges, certified by the cashier or
secretary of such banking company, under its
corporate seal, to be a true and correct extract
from the minutes.
And such petition shall be signed on behalf of
the banking company by its president or a vice-
president and its corporate seal shall be affixed
thereto, attested by its secretary or an assistant
secretary; and said petition shall be verified by
the oath of the president or a vice-president of
such banking company to the effect that the facts
set forth therein are true. Acts 1917, pp. 81, 82.
§ 2821(3). Publication. — After petition has
been filed with the Secretary of State as herein-
before provided, a copy of such petition, without
the exhibits, shall be published, once a week for'
four (4) weeks in the newspaper in which the
sheriff's advertisements are printed in the county
in which the principal office of such banking com-
pany is located, and, after such publication, the pe-
titioning banking company shall file with the
Secretary of State the certificate of the ordinary
of such county, or, in his absence or disability, the
certificate of such other official as may be au-
[ 704]
J821(4)
HOW INCORPORATED AND DISSOLVED
§ 2823
)rized by law to perform the duties of the ordi-
ry to the effect that a copy of such petition has
;n published as herein required. Acts 1917, pp.
83.
} 2821(4). Certificates by Secretary of State. —
hen any such banking company shall have corn-
ed with the foregoing provisions, the Secretary
State shall issue to it a certificate under the
il of the State declaring its charter to be
ended by the acquisition of, and by having
sted in it, all the rights, powers, privileges and
munities, and subject to all the liabilities and
trictions conferred, defined, imposed and limited
§§ 2815-2821. Acts 1917, pp. 81, 83.
\ 2821(5). Fee. — The banking company filing a
:ition for an amendment to its charter under the
nrisions hereof shall pay into the treasury of
: State a fee of twenty-five dollars ($25.00), and
: Secretary of State shall cause such petition
i his certificate to be duly recorded. Acts
17, pp. 81, 84.
} 2821(6). Directors as trustees. — Any bank-
j? company, amending its charter by the acqui-
ion of the powers of trust companies hereun-
', shall not be regarded to ibe managed and to
;rcise its corporate powers by a board of trus-
s, but the business of such corporation shall
itinue to be under the management and control
a board of directors, who shall possess all the
wers, and, be subject to all the duties conferred
i imposed upon the directors of banking com-
lies and upon the trustees of trust companies
der the laws of this State. Acts 1917, pp. 81, 84.
) 2821(7). National banks as trustees, etc. — It
ill be lawful for any National Bank located in
s State, when empowered so to do by the laws
the United States, to act in this State by any
d every method of appointment and in any
Dacity whatever as trustee and as executor, ad-
nistrator or registrar of stocks and bonds,
ts 1917, pp. 84, 85.
$ 2821(8). Oath.— The oath prescribed by the
vs of this State to be taken by executors and
ministrators may be taken when a National
tik acts in such capacity, either by the presi-
|t, or a vice-president, or the cashier, or some
ist officer designated for that purpose by the
itional bank proposing to so act. The oath as
istee, if required, may be taken in a similar
inner. Acts 1917, pp. 84, 85.
§ 2821(9). Bond. — Nothing herein contained
all be considered to relieve a National bank
>m giving a bond, when such bond under the
vs of this State is required to be given by an
lividual acting in any of the aforesaid capacities.
:ts 1917, pp. 84, 85.
§ 2821(10). Financial corporations chartered by
s Superior Court. — Any corporation heretofore
artered by the Superior Courts of this State for
e purpose of engaging in the borrowing and
iding of money, or dealing in real estate, mort-
ges, ibonds, and other evidences of debt, or for
ercising any of the privileges granted to Trust
)mpanies in §§ 2815-2821, and which desires to
ail itself of all of the privileges of said sections,
all have power to do so by securing from the
Ga. Code— 23 [ 7
Secretary of State an amendment to the charter
under which such corporation now exists, which
amendment shall confer upon it all the privileges
of said sections applicable to Trust Companies.
Acts 1910, p. 98.
§ 2821(11). Directors shall authorize. — Before
such amendment can ' be obtained the Board of
Directors of such corporation, at a regular meet-
ing, shall by a majority vote, authorize such
amendment to the charter of such corporation.
Acts 1910, pp. 98, 99.
§ 2821(12). Capital stock. — No corporation shall
avail itself of this privilege until it has actually
subscribed and paid in, either in actual cash, or
property taken at a fair valuation, a capital stock
of at least $100,000. Acts 1910, pp. 98, 99.
§ 2821(13). When laws applicable. — When such
amendment to the charter has been obtained, all
the provisions applicable to trust companies shall
thereupon apply to such corporation. Acts 1910,
pp. 98, 99.
§ 2821(14). Fee — Recordation of amendment. —
The corporation filing its application for such
amendment shall pay into the State Treasury a
fee o.f twenty-five ($25.00) dollars, and the Sec-
retary of State shall cause such amendment and
his certificate to be duly recorded. All such
amendments granted by the Secretary of the State
shall be recorded on charter book in the office of
the clerk of the Superior Court where such origi-
nal charter was granted. Acts 1910, pp. 98, 99.
ARTICLE 9.
Corporations Created by Superior Court.
SECTION 1.
How Incorporated and Dissolved.
§ 2822. (§ 2349.) Special terms to grant chart-
ers.— The judges of the superior courts of this
State are authorized in their discretion to call
and hold special terms of said courts for the pur-
pose of granting charters to corporations. Acts
1887, p. 57.
Cross References.— See 4 Cum. Dig. 160, 3 IJnc. Dig. 619.
As to power of judges to grant charters in vacation, see §
2823 (1).
This Section Is Constitutional. — Branch v. Augusta Glass
Works, 95 Ga. 573, 23 S. E. 128.
§ 2823. (§ 2350.) Superior courts may create
what corporations. — The superior courts of this
State shall have power to create corporations, ex-
cept for banking, insurance, railroad, trust, canal,
navigation, express, and telegraph companies, by
compliance with the following provisions:
Cross References.— See 3 Cum. Dig. 874, 10 Cum. Dig.
570. As to who may create corporations, generally, see §
2192. As to restrictions on general assembly creating cor-
porations, see § 6446. As to protection of name and style
of benevolent or other associations, see § 1993. As to duty
of corporations to file returns to secretary of state, see §
2209.
Legislative Powers Conferred by Section. — The power
conferred by this section upon the courts to grant charters
to corporations is legislative and not judicial in its char-
acter; and there is no provision of law authorizing any one
to appear and object to the grant of corporate powers by
the courts, nor is there any provision for a review by this
court, by writ of error or otherwise, of the action of the
05 ]
§ 2823
HOW INCORPORATED AND DISSOLVED
§ 285
superior court in granting corporate powers to private
companies. The Gas-Light Co. v. West, 78 Ga. 318; Cres-
will v. Grand Lodge K. P., 133 Ga. 837, 844, 67 S. E. 188;
In re Union Club, 142 Ga. 261, 82 S. E. 643.
Property Deeded before Charter Granted Did Not Pass
Title to Corporation.— A deed to designated persons "as
incorporators" of a named "company" which had not in
fact been incorporated did not, upon the granting under this
section by a superior court of a charter to a company of
like name and composed of these same persons, ipso facto
operate to pass to such company the legal title to the
property in the deed described. McCandless v. Inland Acid
Co., 112 Ga. 291, 37 S. E- 419.
Cited in Aultman v. Hodge, 150 Ga. 370, 384, 104 S. E-
1; English v. Rosenkrantz, 152 Ga. 726, 111 S. E- 198.
1. The persons desiring the charter shall file,
in the office of the clerk of the superior court of
the county in which they desire to transact busi-
ness, a petition or declaration, specifying the ob-
ject of their association, and the particular busi-
ness they propose to carry on, together with their
corporate name, and the amount of capital to be
employed by them actually paid in, and their
place of doing business, and the time, not exceed-
ing twenty years, for which they desire to be in-
corporated; which petition or declaration shall be
published once a week for four weeks in the near-
est public gazette to the point where such business
is located, before said court shall pass an order de-
claring said application granted. After the grant-
ing iby the court of the order of incorporation, the
petition and said order shall be recorded together
by said clerk in a book to be kept for that pur-
pose, to be known as "The Record of Superior
Court Charters," and which shall be kept appro-
priately indexed by said clerk; but this shall not
dispense with the recording of the order of incor-
poration upon the minutes of the court also, as a
part of the proceedings of the court. And it may
be lawful for any association of churches to be
chartered for the purpose of promoting the cause
of the Christian religion, charity, or education, by
complying with the provisions of this section, ex-
cept that they need not state the amount of capi-
tal to be used by them actually paid in; and when
the meetings of said association are ambulatory,
they shall not ibe required to set forth their place
of business: Provided, that said association may
be chartered in any county in which a church be-
longing thereto may be located. And paragraph 3
of this section shall not apply to such corporations,
and the publication of notice required shall be in
the nearest public gazette to the county where the
application is made.
As to incorporation of schools and churches, see § 2824
As to situs of educational and religious corporations, see
§ 2837.
In Pari Materia with Paragraph 5.— This paragraph must
be construed in pari materia with the provisions of the
third paragraph of this section. Bing v. Bank of Kingston.
5 Ga. App. 578, 582, 63 S. E. 652. Hence, it is unnecessary
to recite in the application that the capital has been paid
in.
Charter Granted in County Where No Property Is Held.
— A charter granted under this section by a superior court
upon a petition alleging that the principal office of the
company is to be located in the county in which the peti-
tion is filed is a valid charter, notwithstanding the corpora-
tion owns no property in that county and the work in
which the corporation is to be engaged is to be carried on
in another county. McCandless v. Inland Acid Co., 115
Ga. 968, 42 S. E. 449.
Cited in Etowah Milling Co. v. Crenshaw, 116 Ga. 406,
410, 42 S. E- 709.
2. If, upon hearing such petition, the court shall
be satisfied that the application is legitimately
within the purview and intention of this Code, it
shall pass an order declaring the said applicatic
granted, and the petitioners and their successoi
incorporated for and during a term not exceedin
twenty years, with the privilege of renewal one (
more times, according to the provisions above s<
forth. A certified copy of this petition and orde
under the seal of the court, shall be evidence <
such incorporation in any court in this State.
As to surrender of bank charters, § 2366 (124).
Editor's Note. — This paragraph was amended in 192
[Acts 1925, p. 95], by striking from the first sentence, tl
words "at the expiration of that time," and inserting tl
words — "one or more times" in lieu thereof. This amene
ment followed the case of Consolidated Textile Corp.
Exposition Cotton Mills, 158 Ga. 747, 124 S. E. 707.
Cited in White v. Davis, 134 Ga. 274, 281, 67 S. E. 7h
Putnam Mills & Power Co. v. Stonecypher, 151 Ga.
106 S. E- 87.
3. No corporation created under this sectio
shall commence to exercise the privileges confe;
red by the charter, until ten per cent, of the cap
tal stock is paid in; and no charter shall have an
force or effect for a longer period than two year
unless the corporators, within that time, shall il
good faith commence to exercise the powei
granted by the act of incorporation; and in cas
of the failure of said corporation, the stockholc
ers shall be bound, in their private capacity, t
any creditors of said corporation for the amour]
of stock subscribed for by them, until the sai
subscription is fully paid up, or until the stocl
holder shall have paid, out of his private propert;
debts of the said corporation to an amount equ*
to his unpaid subscription.
Cross References. — See 4 Cum. Dig. 163. As to "liabilit
of organizers before minimum of stock is subscribed fo
see § 2220. As to liability of stockholders where corponj
tion fails, see § 2248. As to judgments or decrees again:
stockholders, see § 2253. As to suits against stockholdei
of banks, see § 2356. As to organization of canal con
panies, see § 2369. As to organization of express con
panies, see § 2382. As to chartering of turnpike-roads, s<
§§ 2841-2842. As to incorporation of charitable institutioi
for the custody of children, see § 2845. As to suits again:
members of joint stock companies, see § 2251.
Rule Stated. — Under this paragraph, ten per cent, of tl
amount of the capital stock designated in the charter mu:
be actually paid in before the corporation begins busines
The other ninety per cent, need not be paid in, provide
the corporation holds unpaid stock subscriptions, bona fie
taken, for that amount. Bing v. Bank of Kingston, 5 G
App. 578, 63 S. E. 652; Rosenheim Shoe Co. v. Home,
Ga. App. 582, 585, 73 S. E. 953.
This paragraph must be construed in pari materia wit
the provision of the first paragraph of this section. Bin
v. Bank of Kingston, 5 Ga. App. 578, 582, 63 S. E. 652.
"Actually Paid in," Construed. — The words "actuall
paid in" as used in this paragraph do not relate to tr.
time of the filing of the application for charter, but to tl
time when the organization is completed. Bing v. Bail
of Kingston, 5 Ga. App. 578, 582, 63 S. E. 652.
"To Exercise the Privileges Conferred by Charter," Cor
strued. — The phrase, "to exercise the privileges conferre
by the charter" in this paragraph refers to the right <
the corporation to transact the business for which it wt
chartered. Before beginning the transaction of such bus
ness, it must organize and be in a position to deal wit
third persons, and one of the essential elements of organ
zation is the collection .of at least a portion of the capita
stock in available funds. Branch v. Augusta Glass Work
95 Ga. 573, 576, 23 S. E. 128. •
The act of a corporation in selling and indorsing over 1
a third person a note, given in payment of a subscriptio
to its capital stock, is not an exercise of "the privilege
conferred by the charter," within the meaning of th:
paragraph. Wikle v. Avary, 12 Ga. App. 148, 76 S. E. 103'
Charters Granted General Assembly. — The first two pre
visions of this paragraph does not apply to a chart
granted by the general assembly, but only to those grante
by the courts. Atlanta v. Gate City Gas Light Co., 71 G;
106, 127.
Defense to Action by Director.— Where a director es
[ 706]
\ 2823
HOW INCORPORATED AND DISSOLVED
§ 2823(1)
tends credit to a corporation, a subscriber to stock will
lot be estopped as against such director, in a suit for the
imount of his subscription, from denying the binding ef-
iect of the subscription contract on account of a failure to
lave the minimum amount of capital stock subscribed as
required by this paragraph. L,owe v. Byrd, 148 Ga. 388.
)6 S. E. 1001.
Defense by Stockholder of Insolvent Corporation.— Where
the subscription agreement to stock in a proposed corpora-
tion recites the amount of the capital stock to be sub-
scribed and designates the number of shares and the value
;hereof, the entire amount of the capital stock must be
subscribed, as a condition precedent to the liability of the
subscribers signing the agreement. The subscriber's lia-
Dility being dependent upon the terms of the contract, he
nay, in a suit against him by a creditor of the corporation
ifter it has become insolvent, defend upon the ground that
the minimum capital stock has not been subscribed as re-
quired by this paragraph, where it does not appear that he
las committed any act that would estop him from setting
jp this defense against the creditor. Holliday v. Persons,
29 Ga. App. 784, 116 S. E. 907.
Inference Drawn from Pleadings. — Where petition al-
leges that defendants are "doing business," and does not
negative the idea that this paragraph had not been com-
plied with, it is a legitimate inference that at least ten per
sent, of the capital stock of the corporation had been paid
in when the business was commenced. Wright Co. v. Saul,
51 Ga. App. 129, 134, 120 S. E. 23.
Cited in Hendrix v. Academy of Music, 73 Ga. 437, 440;
Andrews Co. v. Willingham, 286 Fed. 117, 119.
4. The clerk of the court, for his services, shall
■eceive the usual fees allowed for similar services
n other cases.
5. Corporations thus created may exercise all
:orporate powers necessary to the purpose of
:heir organization, but shall make no contract, or
purchase or hold any property of any kind, ex-
:ept such as is necessary in legitimately carrying
!nto effect such purpose, or for securing debts
due to the company.
Cross References. — See 4 Cum. Dig. 174. As to defini
tion of a corporation, see § 2188. As to common powers of
a corporation, see § 2216. As to distinction between cor-
porations and natural persons, see § 2159. As to power of
charitable corporation for custody of children, to hold real
estate, see § 2846.
"Necessary" to Be Given Reasonable Construction. — The
word "necessary," as employed in this section is to be
given a reasonable construction, and not to be so con-
strued as to hamper and obstruct, or practically prevent,
the profitable and reasonable exercise of the corporate
powers and the conduct of the corporate business. Kohl-
russ v. Zachery, 139 Ga. 625, 632, 77 S. E. 812.
Restriction of Powers — Under this paragraph, the stock-
holders in a corporation are granted no rights and clothed
with no powers except such as are expressly set forth in
the charter or as arise therefrom by necessary implication.
Savannah Ice Co. v. Canal-Louisiana Bank, etc., Co., 12
Ga. App. 818, 821, 79 S. E. 45.
Decree of Specific Performance Refused. — Under this sec-
tion it has been held that the courts will not aid the cor-
poration to compel specific performance of a contract for
the purchase of land which it has no power under its char-
ter to acquire and hold. Kohlruss v. Zachery, 139 Ga.
625, 77 S. E. 812.
Cited in Brinson R. Co. v. Exchange Bank of Springfield,
16 Ga. App. 425, 85 S. E. 634.
6. The powers conferred in this section shall
extend to the amendment and renewal of all
charters contemplated in the section, within the
jurisdiction of said courts, whether the original
charter sought to be amended or renewed was ori-
ginally granted by the General Assembly of the
State or by a superior court of this State, and the
said Court shall have the power to amend and re-
new all such charters for one or more times, and
all amendments to and renewals of charters here-
tofore granted by the Superior Courts of this
State are hereby confirmed and declared to be of
full effect from the dates of such amendments and
renewals.
Editor's Note.— This paragraph was amended in 1925,
[Acts 1925, p. 95], by adding at the end thereof, the words—
"and the said court shall have power to amend and renew
all such charters for one or more times, and all amend-
ments to and renewals of charters heretofore granted by
the superior courts of this state are hereby confirmed and
declared to be of full effect from the dates of such amend-
ments and renewals." See Consolidated Textile Co. ".
Exposition Cotton Mills, 158 Ga. 747, 124 S. E- 707, which
was decided before this amendment.
Cited in Macon Gas Co. v. Richter, 143 Ga. 397, 398, 85
S. E. 112.
7. The renewal of charters by the superior-
courts, under the powers conferred by this sec-
tion, shall be granted by said courts in advance of
the expiration of such charters, but to take effect
from the date of such expiration, upon the filing
in the office of said court of a petition signed with
the corporate name of the company whose charter
is sought to be renewed, stating the name of the
corporation, when incorporated, the date and man-
ner of its original incorporation, and all amend-
ments thereto, that it desires a renewal of its
charter as set out in the original act of incorpora-
tion and the amendments thereto, together with
any further amendments which may be desired in
the renewal of said charter; and it shall file
along with said petition a certified abstract from
the minutes of the corporation, showing that the
application for renewal and amendment has been
authorized by proper corporate action, and shall
in all other respects comply with the require-
ments of this section, so far as the same applies to
the grant of incorporation for the company or as-
sociation whose charter is sought to be renewed.
As to method of reviewing charters, see § 2823 (9).
Section Declaratory of Existing Law. — So far as this
paragraph concerns an application for the renewal of char-
ters, it was simply declaratory of the existing law, which
already provided for an extension of the term of a corpora-
tion chartered by the superior court. McKemie v. Eadv-
Baker Grocery Co., 146 Ga. 753, 757, 92 S. E- 282.
8. The said Superior Courts, upon complying
with the provision of this Section, either on origi-
nal application or by amendment, shall be author-
ized to grant to such corporations as may be created
by the Superior Courts of. this State the power to
either lease or mortgage, or to lease and mort-
gage, their property, real and personal, and their
franchises, and to execute conveyances appro-
priate to such purposes, provided that no lease of
both property and franchises shall be effective un-
less expressly authorized or ratified by three-
fourths vote of the entire voting stock of the cor-
poration. Acts 1878-9, p. 172; 1889, p. 160; 1890-1,
p. 70; 1876, p. 33; 1919, pp. 95, 96; 1925, p. 95.
As to common powers of corporations, see § 2216.
Editor's Note. — This paragraph was enacted in 1919,
[Acts 1919, pp. 95, 96], and provides for an extension of the
common powers of a corporation provided its provisions are
complied with.
§ 2823(1). Charters granted in vacation.— The
judges of the Superior Courts of this State shall
be authorized and empowered to grant charters to
private companies and to amend and renew such
charters in vacation at chambers in the same
manner and subject to the same restrictions as
now provided by law for granting, amending and
renewing charters in term time, and the appli-
cants for such charters, amendments and renewals
shall comply with all the provisions of law so far as
07 ]
§ 2823(2)
HOW INCORPORATE© AND DISSOLVED
§ 2823(7)
the same may be applicable as provided in Sec-
tion 2823, and companies so chartered, amended
and renewed in vacation shall be subject to all
the privileges, powers, conditions and liabilities
as provided in said Section. Acts 1913, p. 100;
1925, pp. 95, 96.
Cross References. — As to general powers of a judge dur-
ing vacation, see § 4854. As to power of legislature to au-
thorize courts to grant charters, see § 6446. As to grant-
ing of charters during special terms, see § 2822.
Editor's Note.— In 1913, [Acts 1913, p. 100], this section
was passed by the legislature authorizing judges to grant
charters in vacation. This section was amended in 1925,
[Acts 1925, pp. 95, 96], extending the authority to cases
where an amendment or renewal of a charter is applied
for.
Act Changed Rule. — What is said by the Supreme Court
in White v. Davis, 134 Ga. 274 (67 S. E- 716), with regard
to the lack of power of the superior court to dissolve a
corporation appears to have been met by this act. Stone
v. Edwards, 32 Ga. App. 479, 485, 124 S. E. 54.
Power to Grant Out of County. — Even though this sec-
tion gives the judge power to amend charters in vacation,
he can not do so out of the county where the petition is
pending. Rogers v. Power Co., 131 S. E. 517.
§ 2823(2). When dissolution allowed. — Any cor-
poration heretofore or hereafter created and or-
ganized under a charter granted by any Superior
Court of this State, may, by petition to the Su-
perior Court which granted such charter, sur-
render its said charter and franchises, as a corpo-
ration, and be dissolved by the order and decree of
such Superior Court, provided it shall be satisfac-
torily shown to the court, that at a meeting of
the stockholders of such corporation, duly called
for the purpose, a resolution has been adopted by
the affirmative vote of the owners of two-thirds
of the capital stock of such corporation, resolving
that the corporation shall surrender its charter
and franchise to the State and be dissolved as a
corporation, and provided it shall be satisfactorily
shown to the court that such dissolution may be
allowed without injustice to any stockholder, or
to any person having claims or demands of any
character against said corporation. Acts 1910, p.
106.
See §§ 2243, 2366 (124) and notes.
As to how corporations are dissolved, see § 2241.
Editor's Note.— This section and §§ 2823 (3) -2823 (8) were
passed by the legislature in 1910. [Acts 1910, pp. 106, 108].
The ruling in the case of White v. Davis, 134 Ga. 274, 67
S. E. 716, is no longer the law.
Proceeding Not Auxiliary to Petition in Equity. — The
proceeding under this section is in no sense a part of or
auxiliary to an equitable proceeding to liquidate the affairs
of a corporation. Bank of Saperton v. Holland, 142 Ga.
796, 83 S. E. 782.
Surrender of Charter Must Be Accepted. — The al-
legation in an amendment that, since the filing of the
original petition, the corporation had instituted proceedings
for a surrender of its charter and a dissolution, under this
section, but not showing that the surrender had been ac-
cepted, did not confer the right upon these plaintiffs, who
sued as directors and stockholders, to obtain the appoint-
ment of a receiver and the grant of an injunction against
creditors of the company. Bank of Soperton v. Empire
Realty Trust Co., 142 Ga. 34, 82 S. E- 464.
Statute of Frauds. — An oral promise by the defendant to
pay the plaintiff the debt owed to the latter by a corpora-
tion that has not been dissolved under this section is
within the statute of frauds. Fields v. Bullington, 20 Ga.
App. 102, 92 S. E. 653.
§ 2823(3). Proceedings to dissolve. — The pro-
ceeding for the surrender of such corporate
charter and franchises, shall be by petition in the
name of the corporation seeking dissolution, ad-
dressed to the Superior Court which granted its
charter, and shall be duly verified by the oath of
any officer or stockholder of the corporation, and
shall be presented to the Judge of said court, who
shall grant an order thereon, fixing a time for the
hearing of such petition at the courthouse in said
county, either at a regular term or in vacation,
not less than four weeks from the date of such or-
der, and further directing that such petition be
filed in the office of the clerk of said court, and
that a copy of such petition and order be pub-
lished once a week for four weeks in the news-
paper wherein Sheriff's sales in <ind for such
county are published, the expense of which pub-
lication shall be defrayed by the petitioning cor-
poration. Acts 1910, pp. 106, 107.
Cited in Bank of Soperton v. Empire Realty Trust Co.,
142 Ga. 34, 82 S. E- 464; Bank of Soperton v. Holland, 142
Ga. 796, 83 S. E- 782.
§ 2823(4). Objections to dissolution; hearing. —
Any stockholder of such corporation, or any per-
son having a claim or demand of any character
against it, shall have the right to -appear at the
time and place of such hearing and file written ob-
jections to the dissolution of such corporation, set-
ting out clearly and distinctly the grounds of such
objections, whereupon the Judge aforesaid shall
then and there or at such future time and place
as may then be fixed by him, hear such petition
and all objections thereto, and also such material
evidence as either party may submit on the ques-
tions at issue. Should, it satisfactorily appear to
said Judge on such hearing that the prayer of the
petition should be granted, he shall sign a decree
accepting the surrender of the charter and
franchises of such corporation and ordering
its dissolution; but if it shall not satisfactorily
appear to such Judge that such relief should
be granted, he shall sign a decree refusing the
prayer of such petition. Acts 1910, pp. 106, 107.
§ 2823(5). Administration of assets. — On the
dissolution of any corporation under the pro-
visions of this Act, the assets of such dissolved
corporation may be administered, under the provi-
sions of Section 2245, for the purpose of winding
up the affairs of such corporation as therein pro-
vided, if found to be necessar)^. Acts 1910, pp.
106, 108.
§ 2823(6). Exceptions to decree. — Any party
to the aforesaid proceedings for the dissolution of
any such corporation, being dissatisfied with the
decree of the court aforesaid granting or refusing
to grant the dissolution of such corporation, may
sue out a bill of exceptions assigning error on
such decree, and carry the case to the Supreme
Court for review, by fast writ of error as in
cases of injunction. Acts 1910, pp. 106, 108.
As to writ of error in injunction proceedings, see § 5502.
As to fast bills of exception, see § 6153.
§ 2823(7). Record of proceedings and decree. —
The petition and all written objections thereto
filed under the provisions of this Act, and all pro-
ceedings, orders and decrees thereon, shall ibe, by
the clerk of the Superior Court, wherein the same
is pending, recorded on the minutes of such court,
and when a final decree dissolving any corpora-
tion is granted, an entry of such fact shall be, by
such clerk, made across the face of the record of
the charter of such corporation in the Record of
Charters of Corporations in his office. Acts 1910,
pp. 106, 108.
[ 708 ]
§ 2823(8)
SCHOOLS, CHURCHES, SOCIETIES, ETC.
§ 2825
§ 2823(8). Costs. — All the costs of proceedings
for the dissolution of a corporation under this
Act, shall be paid by the petitioning corporation,
unless the court shall otherwise decree, in the ex-
ercise of its discretion, in cases where objections
are filed and overruled, in which event, the court
may award a portion of the costs against the ob-
jecting party. Acts 1910, pp. 106, 109.
As to awarding of costs under special verdicts, see §
5423. As to who liable for costs, see § 5980.
§ 2823(9.) How charters revived. — In all cases
where a charter of any corporation, incorporated
by an Act of the Legislature or by a certificate of
the Secretary of State of the State of Georgia or
by any Superior Court of this State, has expired,
and such corporation has continued in business in
ignorance of such expiration, said charter may be
revived, if granted by an Act of the Legislature
or by a certificate from the Secretary of State of
the State of Georgia, in the same manner as ori-
ginal charters are now procured from the Secre-
tary of State of the State of Georgia at any
time within five years from the date of such expi-
ration and if incorporated by judgment of any
Superior Court of this State, said charter may be
revived by a judgment of the Superior Court of
the county of residence of the original corporation,
in the same manner as the original charter was
procured, at any time within five years from the
date of such expiration; provided, that a majority
of the stockholders of such corporation, at a regu-
lar or called meeting, notice of the purpose having
been given to the stockholders, adopt a resolution
asking for such reviver and all the stockholders
shall 'be bound by the resolution.
Upon the Secretary of State issuing a certificate
reviving such corporation, or upon the Superior
Court passing an order reviving such corporation,
all the property and other rights of such corpora-
tion shall continue in the corporation as so re-
vived and the acts and doings of such corporation,
in the period 'between the date of expiration and
date of reviver, shall be thereby confirmed and
held as the acts and doings of the original corpo-
ration so revived, and such corporation shall con-
tinue from the date of such certificate by the Sec-
retary of State or the date of such order by the
Superior Court for the full period allowed by law
for such corporations. Acts 1912, p. 107; 1914, pp.
96, 97, 98.
Editor's Note — In 1914, [Acts 1914, pp. 96, 97, 98], this
section was enacted. It expressly repealed the act of 1912.
[Acts 1912, p. 107] which did not provide for the revival
of charters granted by legislature, or by a certificate is-
sued by the secretary of state.
Revival of Bank Charter.— A bank charter which has ex-
pired, the corporation having continued in business in ignor-
ance of such expiration, may be revived under this section,
in the manner therein provided, at any time within five
years from the date of such expiration. Garrison v.
Marietta Trust & Banking Co., 155 Ga. 562, 118 S. E. 48.
Reviver by Superintendent of Banks.— Where, under §
2366 (133) of this code, the superintendent of banks took
charge of an insolvent bank, and pending the winding up
of the affairs nf the bank the charter of the bank expired,
such charter could be revived by complying with the pro
visions of this section. Garrison v. Marietta Trust &
Banking Co., 155 Ga. 562, 118 S. E- 48.
SECTION 2.
Schools, Churches, Societies, etc.
§ 2824. (§ 2351.) Incorporation of schools,
churches, etc. — The superior court, upon the peti-
tion of one or more discreet and proper persons,
showing that a school, academy, college, univer-
sity or church has been, or is about to be, estab-
lished in the county where such court is sitting,
and asking for corporate authority to enforce
good order, receive donations, make purchases,
and effect all alienations of realty and personalty,
not for the purpose of trade and profit, but for
promoting the general design of such institution,
and to look after the general interest of such es-
tablishment, may grant such person or persons
and their legal successors such corporate powers
as may be suitable and not inconsistent with the
laws of this State, nor violative of private rights,
the charter so granted to remain of force twenty
years, or for such longer or greater term or per-
iod as may be specially prayed for in said, petition
and granted by said court unless sooner revoked
by law; and upon petition iby the corporators, or
their legal successors in charge of any such insti-
tution, however and whenever incorporated, the
superior court of the county where the same is lo-
cated shall have power to amend the charter
thereof in any way prayed for: Provided, the
same is not contrary to the laws of this State nor
violative of private rights. The cost of recording
such proceedings on the minutes shall be paid by
the petitioners, and a certified copy of the same,
under the seal of the court, shall be sufficient evi-
dence in any case of the corporate powers and
privileges so granted. Acts 1884-5, p. 58; 1914, pp.
58, 59.
As to proceeding before court to secure a charter, see §
2823, par. 1.
Editor's Note. — This section was amended by the legis-
lature in 1914. [Acts 1914, p. 58]. Universities were added
to the enumerated objects to be incorporated as herein
provided. The amendment also provided that the duration
of the charter shall depend upon the term prayed for in
the petition and granted by the court. The word "corpora-
tion," in a restatement of the section was used instead of
"corporators." This was clearly a mistake.
Reference to §§ 2829 and 2830 will disclose the fact that
secret organizations such as Masonic, Odd Fellows, etc.,
that do not have as their principal object the issuance of
benefit certificates to members, are incorporated under this
law rather than under the insurance law, §§ 2388 et seq.
(See Daniel v. Jones, 146 Ga. 583, 592, 91 S. E- 665), or the
fraternal benefit society law, §§ 2866-2877 (43). See §§ 2877,
2877 (36).
Such orders are specifically exempted from their opera-
tion. It will be noticed, however, that the act of 1912, §
2877 (l)-(3), does not expressly make such exemptions.
Charter to Corporation Seeking Pecuniary Profits For-
bidden.— This section does not authorize the issuance of a
charter to enable a stock company to engage in the busi-
ness of education purely for pecuniary profits to its stock-
holders. Brenan Asso. v. Harbison, 120 Ga. 929, 48 S. E.
363.
Unincorporated Society Not Party to Action. — No ac-
tion can be maintained against a religious society when
sued as such, when such society has not been incorporated
under this section, nor had recorded its name and objects,
as provided by § 2830. The members of such society are
liable on its contracts as joint promissors or partners.
Thurmand v. Cedar Spring Baptist Church, 110 Ga. 816,
36 S. E- 221.
Validity of Grant — Testing. — An information in the na-
ture of quo warranto, and not injunction, was held to be
the proper method of testing the right of trustees to hold
office, by grant under this section. Harris v. Pounds, 64
Ga. 121. See also, McCarthy v. McKinnev, 137 Ga. 292, 73
S. E. 394.
Cited in Tosev v. Union Loan, etc., Co., 106 Ga. 608, 611,
32 S. E. 628.
§ 2825. (§ 2352.) To revive the charters of such
corporations. — In all cases where the charter of a
corporation created for library, church, charitable,
[709]
§ 2826
SCHOOLS, CHURCHES, SOCIETIES, ETC.
2830
school or education purposes, may have heretofore
expired, or may hereafter expire, such corporation
may be revived for the same purposes at any time
within ten years after the expiration of its charter,
where such corporation has ceased operation, and
at any time within twenty-five years after the ex-
piration of its charter, where such corporation has
continued in operation in ignorance of such expi-
ration, by the Superior Court of the county in
which the former charter was granted. The appli-
cation for reviver may be made by the former
corporators, or trustees, or their successors in
trust, or any of them, and the application and all
proceedings thereon shall be as prescribed by law
for making application and proceedings thereon in
cases of similar and original charters. The corpo-
ration, as revived, shall stand clothed with all the
powers, and possessed of all the property and
other rights, and be subject to all the debts, lia-
bilities and burdens of the old corporation which
is revived in it. And in all cases where a charter of
any such corporation has expired, and such corpora-
tion has continued in operation in ignorance of such
expiration, upon the Superior Court passing an or-
der reviving such corporation, the acts and doings
af such corporation in the period between the date
of expiration and date of reviver, shall be there-
by confirmed and held as the acts and doings of
the original corporation so revived, and such cor-
poration shall continue from the date of such or-
der of the Superior Court for the full period al-
lowed by law for such corporations. Acts 1889, p.
182; 1897, p. 29; 1921, pp. 112, 113.
Editor's Note. — By an amendment to this section in
1921, [see Acts 1921, pp. 112, 113], a corporation that has
continued in operation in ignorance that its charter has
expired, may revive the same within twenty- five years
from the date of said expiration. The application for re-
viver was extended to the successors of the former trustees.
The Act also provided for the affirmation of acts and do-
ings between the date of expiration and reviver, and that
such corporation shall continue from the date of order re-
viving the corporation for the full period allowed by law.
As to reviver of charters, generally, see § 2823 (9).
§ 2826. (§ 2353.) Conveyances to churches, etc.,
confirmed. — All deeds of conveyance heretofore
made, and which may hereafter be made, to any
person or persons, for any lots of land within this
State, to any church or religious society, or to
trustees for the use of such church or religious
society, for the purpose of erecting churches or
meetinghouses, are, and shall be deemed and taken
to be good and valid, and available in law for the
intents, uses and purposes contained in said deeds
of conveyance; and all lots of land so conveyed
shall be fully and absolutely vested in such church
or religious society, or in their respective trustees,
for the uses and purposes in said deed expressed;
to be holden to them, or their trustees, for their use
bjr succession, according to the mode of church
government, or rules of discipline exercised by
such churches or religious societies respectively.
Acts 1805. Cobb, 899.
As to method of filling vacancies in church societies, see
§ 3778.
Trust Held to Attach to Office. — It has been held under
this section that where the title was conveyed to a Bishop
for the use of the Protestant Episcopal church in fee simple,
such trust did not attach to his person, but to the office
of bishop, and passed to his successor in office. Beckwith
v. Rector, etc., of St. Phillips Parish, 69 Ga. 564.
Trust Partly for Educational Purposes. — Where a trust
was created for an educational as well as a religious pur-
Harris v. Brown, 124
192, 198; Harris v.
pose this section does not control it.
Ga. 310, 318, 52 S. E. 610.
Cited in Gilham v. Wells, 64 Ga.
Pounds, 64 Ga. 122.
§ 2827. (§ 2354.) Trustees, to whom subject-
All trustees to whom conveyances are or shall be
made, for the purposes expressed in the preced-
ing section, shall be subject to the authority of
the church or religious society for which they hold
the same in trust, and may be expelled from said
trust by such church or society, according to the
form of government or rules of discipline by which
they may be governed. Act 1805, Cobb, 899.
Cross References. — As to appointment of trustees to va-
cancies in corporations by the court, see § 3745. As to dis-
solution of a corporation by death of all members, see §
2244. As to method for filling vacancies in a church so-
ciety, see § 3778.
Cited in Gilham v. Wells, 64 Ga. 192, 198.
§ 2828. (§ 2355.) Failure to record certificate of
appointment. — Every church or religious society
is authorized to fill all vacancies which may hap-
pen in the said trusts by death, -removal, expul-
sion, or otherwise; and when any vacancy shall be
filled, the same shall be certified under the hand or
hands of the person presiding in the society, and
according to the form of government or discipline
practiced by said church or society, which certifi-
cate shall express the name of the person appointed
to fill the vacancy and the name of the person in
whose place he shall be appointed; and the said
certificate being recorded in the office of the clerk
of the superior court of the county in which the
land lies, the person so appointed to fill such va-
cancy shall be as fully vested with such trust as if
a party to and named in the original deed: Pro-
vided, the failure so to have recorded the certificate
of appointment aforesaid shall not operate to dis-
qualify, or render incompetent to act in any pro-
ceeding, any trustee duly appointed by the form of
government or discipline practiced by the church
or society having the power to appoint trustees.
Acts 1884-5, p. 51.
As to method of filling vacancies in trusts of church so-
cieties, see § 3778.
Suit Against Church as an Entity. — In order for a church
to sue or be sued as an entity, it must have been incor-
porated, or else certificates of the appointment of trustees
must have been filed as provided by this section. Kelsey
v. Jackson, 123 Ga. 113, 50 S. E. 951.
Trust Property Liable for Debt. — If trustees hold title
to property for a church which has not been incorporated,
and where no certificate has been filed as provided by this
section, nevertheless the trust property may be subjected,
by proper proceeding, to a debt for which it is liable. Kel-
sey v. Jackson, 123 Ga. 113, 50 S. E. 951.
§ 2829. (§ 2356.) The three preceding sections
construed. — The three preceding sections shall be
so construed as to apply to all societies, whether
social, charitable, secret, Masonic, or by what-
ever name they may be called; and all criminal
laws for the protection of religious societies shall
be so construed as to apply to all societies, by
whatever name they may be called. Acts 1855-6,
p 272.
§ 2830. (§ 2357.) Societies incorporated. — Said
societies, in their distinct and proper names, by
their trustees or officers, shall be entitled and au-
thorized to receive, by purchase, gift, or bequest,
all property, (both personal and real, and they
shall be capable in law of suing and being sued,
pleading and being impleaded, contracting and be-
[710]
j 2831
SCHOOLS, CHURCHES, SOCIETIES, ETC.
§ 2835
ng contracted with; and they are hereby made
jodies politic and corporate for the purposes
named, when any of the said societies shall have
entered their names as trustees or officers of any
such societies, for the purposes herein specified,
and they shall be capable in law of defending and
being defended, and entitled to all the benefits of
the three preceding sections before mentioned:
Provided, that the said societies shall have recorded
the name, style, and objects of their association.
Acts 1855-6, p. 272.
See 9 Cum. Dig. 1004, 11 Enc. Dig. 175.
Effect of Section. — This section converts an unincorpo-
rated religious organization into a corporation. Langford v.
Mount Zion Baptist Church, 22 Ga. App. 696, 97 S. E. 102.
Unincorporated Society Not Party to Suit. — A religious
society, which is not incorporated according to law, or
which has not recorded its name and objects, as provided
jy this section, can not be sued as such. Its members are
iable on its contracts as joint promisors or partners.
Wilkins v. St. Mark's Protestant Episcopal Church, 52
5a. 352; Thurmond v. Cedar Spring Baptist Church, 110
ja. 816, 36 S. E. 221; Kelsey v. Jackson, 123 Ga. 113, 50 S.
S. 951.
But when it appears that the title to certain trust prop-
.Tty is in named trustees, though they appear to represent
in unincorporated religious association, a proceeding to
oreclose a mortgage executed thereon by them, in order
:o subject the property to a debt for which it is liable,
nay be brought under this section, and to such action the
rustees are the only necessary parties. Holmes v. Banks -
on, 149 Ga. 668, 101 S. E. 792.
Action for Goods Converted before Incorporation. — An
iction in tort is not maintainable by a church incorporated
mder this section, fn its corporate name, against some of
ts former members, to recover the value of property which
telonged to the members of the church and which had been
[legally converted to other uses by the defendants, prior
0 the incorporation of the church. Mountain Top Mis-
ionavy Baptist Church v. McLarty, 133 Ga. 548, 66 S. E-
43.
Action Not Amendable. — A suit against an unincorporated
hurch can not be converted by amendment into a suit
gainst a corporation or body politic. Langford v. Mount
lion Baptist Church, 22 Ga. App. 696, 97 S. E. 102.
Under this section it'has been held that an action in the
lame of an unincorporated "church," purporting to be
rought "by" named persons as its officers and trustees,
3 not maintainable, nor can the petition in such a case
e so amended as to make it an action in the name of
hose persons for the use of the church. Mutual Life Ins.
)o. v. Inman Park Presbyterian Church, 111 Ga. 677, 36
1 E. 880.
§ 2831. (•§ 2358.) Intrusion on camp-ground. —
To person shall camp upon a camp-ground used
3r religious purposes, without the consent of the
rustees or persons in charge of such grounds, ex-
ept during the progress of religious services at
aid grounds; nor shall any person place any ani-
lal of any kind within any booth, tent, stall, or
nbor on such camp-grounds, without the consent
f the owner or owners thereof, or the persons in
harge of the same. Acts 1889, p. 179.
As to action against intruders on camp-grounds, see §
584.
§ 2832. (§ 2359.) Penalty. — Any person violat-
lg the preceding section shall be deemed guilty
f a misdemeanor: Provided, that the preceding
ection shall only apply to such camp-grounds
aving their boundary lines plainly and distinctly
larked by stakes, posts, or otherwise.
As to criminal liability of intruders on camp -grounds, see
422, P. C.
§ 2833. (§ 2360.) Majority represent church.—
'he majority of those who adhere to its organiza-
on and doctrines represent the church. The
withdrawal by one part of a congregation from
[71
the original body, or uniting with another church
or denomination, is a relinquishment of all rights
in the church abandoned.
Editor's Note. — This section is a codification of the
principles enunciated in the case of Bates et al., Trustees v.
Houston et al., 66 Ga. 198, 201. Equitable relief was
granted to prevent a minority of church members from
retaining control of the church government and property.
Binding Effect of Church Tribinals. — Under this section
it has been held that a voluntary religious society which
constitutes a subordinate part of a religious organization
having established tribunals authorized, either expressly or
impliedly, to decide all questions of faith, discipline, rule, or
ecclesiastical government, is bound by the decisions rf
such tribunals on all questions determined by them within
the respective jurisdictions of each. Mack v. Kime, 129
Ga. 1, 58 S. E. 184.
Applied in Everett v. Jennings, 137 Ga. 253, 254, 73 S. E.
375; Tucker v. Paulk, 148 Ga. 228, 96 S. E. 339.
Cited in Sharon v. Powell, 30 Ga. App. 235, 237, 117 S.
E. 264.
§ 2834. (§ 2361.) Church edifice liable for sale.
— In the absence of other property, where a con-
gregation has incurred a valid debt, the church
edifice and site are liable to sale for its payment.
See 11 Enc. Dig. 182. As to enforcement of trust claims
at law, see § 3786.
Editor's Note. — This section is a codification of the
principles enunciated in the case of Lyons v. Planter's Loan,
etc., Bank, 86 Ga. 486, 12 S. E. 882, where the sale of the
church site and edifice was ordered, for the purpose of
paying a debt owed a former pastor for his services. In
Kelsey v. Jackson, 123 Ga. 113, 50 S. E. 951, the Lyons
case was followed and the section applied.
Cited in Timmons v. Citizens Bank, 11 Ga. App. 69, 74,
74 S. E. 798.
§ 2835. (§ 2362.) Interference by courts. —
Courts are reluctant to interpose in questions af-
fecting the management of the temporalities of a
church; but when property is devoted to a spe-
cific doctrine or purpose, the courts will prevent it
from being diverted from the trust.
See 9 Cum. Dig. 1007, 11 Enc. Dig. 185. As to nature of
relief in cases of trust, see § 3783.
Editor's Note. — This section is a codification of the
principles enunciated in the case of Bates et al., Trustees
v. Houston et al., 66 Ga. 198, 202. The trustees of a church,
appointed by the superior court, have prima facie a right
to represent the trust committed to them and to protect it
from an improper diversion by others.
Rule Stated. — When property acquired by an ecclesiasti-
cal organization is devoted, by the express terms of a gift,
grant, or sale, to the support of any specific religious doc-
trine or belief, under this section, the civil courts, when
necessary to protect the trust to which the property has
been devoted, will inquire into the religious faith or prac-
tice of the parties claiming its use or control, and will see
that it shall not be diverted from that trust. But if prop-
erty is acquired in the ordinary way of purchase or gift,
for the use of a religious society, the civil courts will only
inquire as to who constitute that society, or its legitimate
successors, and award to them the use of the property,
but will not, in case of a schism in the organization, in-
quire into the existing religious opinion of those who ad-
here to the acknowledged organization. Mack v. Kime, 129
Ga. 1, 58 S. E. 184.
Departed Majority Can Not Divert Trust. — Under this
section it has been held that if the majority of the church
depart from its organization and doctrines, they do not
represent the church, and such majority can not divest the
church property from the trust to which it has been de-
voted. Tucker v. Paulk, 148 Ga. 228, 96 S. E. 339.
Necessity of Property Rights to Create Jurisdiction. —
Under this section a court of equity will not interfere with
the internal affairs of a religious organization, when no
property rights are involved; for the reason that civil
courts have no jurisdiction of such matters and can not
take jurisdiction of them, whether they have been adjudi-
cated by the ecclesiastical courts or not. Grant Jeter Co.
v. American Real Estate Co., 159 Ga. 80, 125 S. E. 73.
This section does not apply where the only property
right in issue is as to which of the two factions of the
church should have possession and control of the property,
which was purchased and devoted to the use of such church
1]
2836
CHARITABLE INSTITUTIONS FOR CUSTODY OF CHILDREN
§ 284,
for religious purposes generally. Grant -Jeter Co. v. Ameri-
can Real Estate Co., 159 Ga. 80, 125 S. E. 73.
Cited in Harris v. Brown, 124 Ga. 310, 52 S. E. 610.
SECTION 3.
Literary and Other Similar Corporations.
§ 2836. (§ 2363.) Literary societies, how incor-
porated.— Library and other literary, charitable,
or social organizations, which have no capital
stock, and are not organized for individual pecu-
niary gain, may be incorporated under the provi-
sions of this Code, all of whose provisions are
hereby made applicable to the organizations
aforesaid. Acts 1878-9, p. 166.
See 3 Cum. Dig. 874. As to protection of names of benev-
olent associations, see § 1993.
Court Not Compelled to Grant Charter. — A writ of er-
ror, complaining of a refusal to grant a literary club the
right to incorporate, as provided by this section, will be
dismissed. In Re Union Club, 142 Ga. 261, 82 S. E. 643.
Cited in In re Supreme Eodge of Masons Annuity, 286
Fed. 180, 181.
§ 2837. (§ 2364.) Educational and religious
corporations, situs of. — In all cases where it is
the design of religious or educational associations
or societies to extend their operations and hold
property in different counties in this State, without
having any principal place of business, it shall be
lawful for the petition for incorporation to be filed
in, and the order of incorporation to be granted by,
the superior court of any county of this State, and
the said county shall be deemed 'and held to be the
county of the residence of said corporation. Acts
1876, p. 34.
As to procedure to obtain charter from the court, see §
2823, par. 1.
§ 2838. (§ 2365.) Legal residence may be
changed. — 'By resolution of the corporation entered
on the minutes thereof, the county of its legal
residence may be changed from the county where
it was incorporated, by the order of the superior
court, to some other county where its head or chief
executive officer resides: Provided, that such res-
olution of the corporation shall be recorded on the
minutes of the superior court which granted the
charter of the corporation, and also on the minutes
of the superior court of the county in which the
corporation seeks to locate its legal residence. Acts
1889, p. 161.
§ 2839. (§ 2366.) Validity of contract. — All
contracts made with the said corporations, or all
deposits of title made for the purpose of securing
to the said corporation moneys held and owned by
them, shall be legal and valid, and payment may
be enforced in the same manner and in the same
way as if done by a private individual. Acts 1889,
p. 161.
§ 2840. (§ 2367.) Charitable trusts. — Said cor-
porations now created or hereafter created pursu-
ant to the provisions of this Article are authorized
to act in their corporate capacity as trustee to ad-
minister and carry into effect any charitable trust
heretofore or hereafter created by deed or by will,
which is consistent with the objects of the cor-
porate existence. Acts 1889, p. 161.
As to equitable enforcement of a charitable bequest, see
§ 4603. As to corporate powers of trust companies, see §
2817.
SECTION 4.
Plank Roads.
§ 2841. (§ 2368.) Turnpike-roads, how char
tered. — When five or more persons desire a chartei
for a shell or plank road or turnpike in any of th<
counties of this State, they shall file, in the office o
the clerk of the superior court of the county ir
which said shell, plank, or turnpike-road is intendec
to be located, a petition or declaration specifying as
near as possible the route and termini, and thtj:
corporate name, and amount of capital to be]
employed by them in building such roads, with the
privilege of increasing it to any amount named ir.l
said petition, and the time, not exceeding twenty
years, for which they desire to be incorporated
with the privilege of renewal of the expiration o
said twenty years, which petition or declaration
shall be recorded by said clerk, and shall also be
published once a week for one month in the near-
est public gazette to the location of such plank,
shell, or turnpike-road company, before said court
shall pass an order declaring said application!
granted. Acts 1882-3, p. 113.
As to definition of public roads, see § 629. As to creation
of turnpike commission, see § 782. As to liability for col-'
lecting tolls on unrepaired turnpike, see § 790.
§ 2842. (§ 2369.) Void if ten per cent, not paid
in and work begun. — No shell, plank, or turnpike-
road under the preceding section shall commence!
to exercise the privileges conferred by the charter
until ten per cent, of the capital stock is paid in,
and no charter shall have any force or effect for a
longer period than five years unless the corpora-
tion within that time shall in good faith commence
to exercise the powers granted by the act of incor-
poration. Acts 1882-3, p. 113.
As to right of corporations to commence business before
stock is paid for, see § 2823, par. 3.
§ 2843. (§ 2370.) Fee— The clerk of the court
shall receive for his services the usual fee allowed
for similar services in other cases. Acts 1882-3, p.
113.
As to salary of clerk and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-
tion or more, see § 6017 (5), counties having between 44,-
000 and 60,000 and from 70,000 to 150,000 population, see § I
6017 (12), counties of from 60,000 to 70,000 population, see §
,6017 (25).
§ 2844. (§ 2371.) Damage, how assessed. —
When any person shall feel aggrieved or injured
by said shell, plank, or turnpike-road being carried
through his or her lands, or when the said com-
pany cannot agree with persons through or on
whose lands the said shell, plank, or turnpike-road
may be constructed, as to the damage sustained,
the amount of such damage or injury shall be as-
certained and determined as provided in this Code.
Acts 1882-3, p. 113.
As to tender of payment under condemnation proceedings,
see § 5207.
SECTION 5.
Charitable Institutions for Custody of Children.
§ 2845. (§ 2372.) Charitable institutions, how
incorporated.— Any three or more persons desiring
a charter for any benevolent institution shall file, in
the office of the clerk of the superior court of the
[712]
§ 2846
CHARITABLE INSTITUTIONS FOR CUSTODY OF CHILDREN
§ 2850
county in which they desire to transact business,
a petition or declaration specifying the objects of
their association, together with their corporate
name, and the time (not exceeding fifty years) for
which they desire to be incorporated; which peti-
tion shall be recorded by said clerk, and shall also
be published once a week for four weeks in the
nearest public gazette to the point where such in-
stitution is to be located, before said court shall
pass an order declaring said application to be
granted. Acts 1894, p. 80.
As to equitable enforcement of a charitable bequest, see
§ 4603.
Constitutionality— Even if the act of 1894 (Acts 1894, p.
80), now contained in this section and §§ 2846-2860, inclusive,
is subject to the objection that the body of the act con-
tains matter different from what is expressed in the title,
or that it refers to two subject-matters, such act, having
been incorporated in the Code of 1895, became, by the
adoption of that code, a valid law of this state, without
reference to any defects of the character above referred to
that might have existed in the original act. See Kennedy
v. Meara, 127 Ga. 68, 56 S. E. 243.
§ 2846. (§ 2373.) May hold real estate and re-
vive gifts. — Said corporation shall have power to
)urchase and hold real estate sufficient for the
ictual occupation and necessary uses of the society
>r institution, and may receive, by gift or devise,
>roperty of any kind on the terms contained in the
?ift or devise. Acts 1894, p. 80.
As to powers granted to corporations, see § 2823, par. 5.
§ 2847. (§ 2374.) Government of such institutions.
—The directors or board of managers of such in-
stitution shall have power to make by-laws and
egulations for the government of the institution,
ind may control the children under their care, and
describe their course of instruction and manage-
nent to the same extent and with the same rights
is in the case of natural guardians. Acts 1894, p.
10.
§ 2848. (§ 2375.) Custody, care, and indenture
>f children. — In all cases where a child shall have
>een surrendered by its natural guardian or custo-
lian to the care and management of any such in-
stitution by any instrument or declaration in writ-
ng, or committed to its custody according to law,
t shall be lawful for the directors or board of
nanagers, at their discretion, to place such child,
>y adoption or at service, in some suitable employ-
nent, and with some proper person or persons:
Provided, that in all such cases the terms of the in-
lenture shall be first approved by the ordinary of
he county, which approval shall be signified on
such indenture by the signature of said ordinary;
>ut in every such case the requisite provisions
shall be inserted in the -indenture or contract of
)inding to secure to the child so bound such treat-
nent, education, or instruction as shall be suitable
md useful to its situation and circumstance in life;
ind in all such cases where a child shall have been
iurrendered by its natural guardian or other legal
custodian to the care and management of such in-
stitution without, any instrument or declaration in
vriting, but because of proverty or other inability
o care for such child, it shall be lawful for the
>oard of managers to place such child for adoption
>r at service, in the manner hereinbefore provided,
ifter having kept such child at least one year, and
here being no reasonable probability of such par- !
ent or custodian being able to resume the care of
such child. Acts 1894, p. 80.
Cross References.— As to subjects of charity, in equity,
see § 4605. As to power of parent to bind out minor chil-
dren, see § 3123. As to power of ordinary in certain cases,
see § 3124. As to master's duty to an apprentice, see §
3119.
Applied in Fay v. Burton, 147 Ga. 648, 95 S. E. 224.
§ 2849. (§ 2376.) Abandoned children, how
committed to such institutions. — In case of the
death or legal incapacity of a father, or of his im-
prisonment for crime, or of his abandoning and
neglecting to provide for his family, the mother
shall be deemed the guardian of her children for
the purpose of making such surrender as aforesaid,
and if in any such case the mother be either dead,
or legally incapable of acting, or imprisoned for
crime, or an inmate of a house of ill fame, or shall
have abandoned or neglected to provide for her
child or children, the ordinary of the county in
which such institution is established shall be, by
virtue of his office, the legal guardian for the like
purpose; and in all cases where said child has been
abandoned by the person legally entitled to its
custody, the said ordinary shall be ex-officio such
guardian for the same purpose, and in either case,
whether such surrender be made by the mother or
by the ordinary, and whether before or after ad-
mission into said institution, it shall be deemed a
legal surrender for the purposes and within the
true intent and meaning of this Article. Acts 1894,
p. 81.
§ 2850. (§ 2377.) Destitute children, how com-
mitted.— Whenever any girl under the age of
fourteen, or any boy under the age of ten years,
shall be found, by any policeman or other officer
of the county in which any such institution devoted
to the relief or care of children is located, in any
street, highway, or public place in said county, or
and city therein, in circumstances of destitution and
suffering or abandonment, exposure, or neglect, or
of beggary, or in any house of ill fame, it shall be
the duty of any such policeman or other officer to
bring such child before the mayor, recorder, or
other judicial officer in said county, or any city
therein, for examination as to the cause of such
suffering, exposure, or neglect; whenever any such
child is so brought before the mayor, recorder, or
other magistrate, and it shall be proved to the
satisfaction of such mayor or other judicial officer,
<by competent testimony, that, by reason of the
neglect, habitual drunkenness, or other vicious
habits of the parents or lawful guardians, or the
person having the custody of such child, it is a
proper object for the care and instruction of such
institution located in such county, such mayor, re-
corder, or other magistrate, instead of committing
such child to the almshouse, or such other place,
if any, as may have been provided by the city or
county authorities of such county, may, in his dis-
cretion, by warrant in writing under his hand,
commit such child to such institution, to be and
remain under the guardianship of its managers un-
til therefrom discharged in the manner prescribed
by law. Acts 1894, p. 81.
Cross References. — As to commitment to Georgia In-
dustrial Home, see § 2862. As to protection of children by
commitments to charitable institutions, see § 3024. As
to power of ordinary to bind out minor children, see § 3124.
Nature of Judgment of Commitment. — The judgment of
[713]
§ 2851
CHARITABLE INSTITUTIONS FOR CUSTODY OF CHILDREN
§ 2859
commitment under this section to the benevolent institu-
tion is a judgment made by a court of competent juris-
diction; and so long as it stands unreversed it is binding
upon the parties. It was therefore not erroneous to re-
ject evidence tending to impeach the validity of this judg-
ment. Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243.
§ 2851. (§ 2378.) Commitment, how executed. —
Any order so made by any such mayor, recorder,
or magistrate may be executed by any policeman
or constable to whom it shall be delivered by the
official issuing it, by conveying the child therein
named to such institution, and such child shall be
detained in said institution until discharged or re-
moved therefrom in the manner hereinafter pro-
vided. Acts 1894, p. 82.
§ 2852. (§ 2379.) Notice of commitment. —
Immediately upon the making of any such order,
the officer making the same shall deliver to the
policeman or constable a notice in writing ad-
dressed to the father of such child, if its father be
living and resident within the county, and if not,
then to its mother if she be living and so resident,
and if there be no father or mother of such child,
then addressed to the lawful guardian of such
child, if any, or to the person with whom, accord-
ing to the examination of the child and the testi-
mony, if any, received by the mayor, recorder, or
magistrate, such child may reside; in which notice
the party to whom the same is addressed shall be
informed of the commitment of such child to said
institution, and shall be notified that, unless taken
therefrom in the manner prescribed by law within
ten days after the service of such notice, the child
therein named shall be deemed legally surrendered
to the institution for the purposes and within the
true intent and meaning of this Article. Acts
1894, p. 82.
§ 2853. (§ 2380.) Service of notice. — Such
notice shall served by the officer to whom it shall
be delivered, by delivering the same to the party to
whom it shall have been addressed, personally, or
by leaving it with some person of sufficient age, at
the place of residence or business of such party,
and it shall be the duty of such officer immediately
to report the fact and the time and manner of such
service to the officer issuing the notice. Acts 1894,
p. 82.
§ 2854. (§ 2381.) Parent or guardian may re-
cover custody of child. — If the party to whom such
notice shall have been addressed or any other per-
son shall, within the time specified therein, prove
to the satisfaction of the officer issuing the same
that the circumstances of want and suffering, or
other circumstances under which the child shall
have been found, have not been occasioned by the
habitual neglect or misconduct of the parents or
legal guardian of such child, then it shall be the
duty of such magistrate, by order in writing ad-
dressed to the directors or managers of said institu-
tion, to direct such managers to deliver such child to
the custody of the party named in such order, who
shall thereupon be entitled to take such child
away from the said institution. Acts 1894, p. 82.
As to custody of children after a divorce, see § 2971.
§ 2855. (§ 2382.) Officer's duty.— If such proof
shall not be produced within the time above pre-
scribed, it shall be the duty of the officer by whom
such child shall have been committed to said in-
stitution, to make and transmit to the directors or
managers thereof a notice in writing to that effect.
Acts 1894, p. 83.
§ 2856. (§ 2383.) Second commitment final. —
If any child who has been previously arrested and
delivered to the parent or guardian, as hereinbefore
provided, shall again be found in either of the
conditions hereinbefore described, the officer be-
fore whom such child is brought, upon proof1
thereof, may afterwards make a final order com--
mitting such child to the care and instruction of
the institution, without giving the notice herein-
before provided for. Acts 1894, p. 83.
§ 2857. (§ 2384.) Managers of such institution
may surrender custody of children to parents or
guardians. — If, at any time after the child shall
have been committed as above provided, it shall be
made to appear to the satisfaction of the directors or
board of managers that such child was on insuffi-
cient cause, false or deficient testimony, or other-
wise wrongfully or improvidently so committed,
the directors or board of managers shall, on the
application of the parents, guardian, or protector,
and also, if, after a child shall have been properly
committed to said institution, any circumstances
should occur which, in the judgment of the direc-
tors or board of managers, would render expedient
and proper the discharge of such child from the
guardianship of said board, having due regard for
the welfare of such child and the purposes of the
institution, the directors or board of managers, on
the application of the parents, guardian, or pro-
tector of such child,, may, in their discretion, deliver
up the child to its parents, guardian, or protector,
on such reasonable condition as the said directors
or board of managers may deem right and proper:
Provided, the consent of the ordinary shall be first
obtained. Acts 1894, p. 83.
Remedy Not Exclusive. — The remedy under this section
given the parent by application to the authorities of the
institution is not exclusive, and does not oust the court of
jurisdiction to entertain a petition for a writ of habeas
corpus. Kennedy v. Meara, 127 Ga. 68, 81, 56 S. E. 243
§ 2858. (§ 2385.) Debased children may be
restored to committing officer. — The directors or
board of managers shall have power, and it shall
be their duty, whenever any child entrusted or
committed to their charge shall, by the commis-
sion of any infamous crime, or by confirmed habits
of vagrancy, have become so degraded and de-
based as to be an improper subject for their care
and management, to return such child to the com-
mitting officer or other proper authority, to be dis-
posed of in due course of law. Acts 1894, p. 83.
§ 2859. (§ 2386.) Indentures, how revoked. — If
any party to whom the directors or board of man-
agers of said institution shall have entrusted a
child shall be guilty of any cruelty, misuse, and]
refusal or neglect to furnish the necessary provi-j
sions or clothing, or of any other violation of the
terms of indenture or contract, to any such child;
so indentured, such child, or any reliable person,
may make complaint thereof to any justice of the!
peace of the county in which such child is so in-
dentured, or to the mayor, recorder, or other judi-
cial officer in any city in the county in which such
child is bound to service; and it shall be the duty of]
[714]
§ 2860
GEORGIA INDUSTRIAL HOME
§ 286
such officer to summon the parties before him and
examine into, hear, and determine the said com-
plaint, and if, upon such examination, the said com-
plaint shall appear well founded, such officer shall,
by certificate under his hand, discharge such child
from his obligation of service and restore him or
her to the charge and management of such institu-
tion in the same manner and with like powers as
before the indenture of such child. Acts 1894, p.
83.
§ 2860. (§ 2387.) Guardians of children inden-
tured.— The directors or board of managers of
such institution shall be the guardian of every
child indentured by virtue and in pursuance of the
provisions of this Article, to the extent that they
shall take care that the terms in the contract be
faithfully fulfilled, and that such ward be properly
treated; and it is made their special duty to in-
quire into the treatment of every such child and
redress any grievance in the manner prescribed by
law; and it shall be the duty of the person to whom
any such child shall be indentured, and he shall by
the terms of the indenture be required, as often as
once in six months, to report to said directors or
board of managers the conduct and behavior of
said apprentice and anything of special interest
pertaining to his welfare. Acts 1894, p. 84.
§ 2861. Extended to institutions heretofore in-
corporated. — The provisions of the preceding
paragraph of this Section shall apply to orphans'
homes and charitable or benevolent institutions
incorporated under the laws of this State prior to
December 18th, 1894, in addition to the rights,
powers, and privileges already vested in said insti-
tutions. Acts 1898, p. 104.
SECTION 6.
Georgia Industrial Home.
§ 2862. Courts to commit certain classes of
children. — Any judge of the superior court,
or of • the court of ordinary, or any other
court of record in this State shall have au-
thority, upon presentation before him of the
facts hereinafter recited, to commit to the Georgia
Industrial Home, or any other similar undenomina-
tional institution in this State that may be ready
and willing to receive them, any of the following
classes of children who may be brought before
him:
1. All children over four and under fourteen
years of age who may be found roaming the
streets of any city or town or the public highways
of this State, begging, or who may be homeless
and without parental care.
2. All children between the ages of four and
fourteen who may be found in the hands of pro-
fligate, immoral, or destitute parents, or other per-
sons, neglected or in want and likely to grow up
and suffer, and by reason of such suffering and
neglect liable to become paupers or criminals.
3. All children between the ages of four and
fourteen who may be confined in the poorhouses
or pauper-farms of this State.
4. All children between the* ages of four and
fourteen who may be found in any house of ill
fame or in the hands of persons or parents who are
living lives of shame.
5. All children between the ages of four and
fourteen whose parents have been convicted of
crime and sentenced to the penitentiary or any
chain-gang in this State, or who may be confined
in any common jail under sentence of the law in
this State. Acts 1904, p. 93.
Cross References. — As to power of ordinary to commit
certain classes of children, see § 3024. As to power of ordi-
nary to bind out children, see § 3124. As to commitment
of destitute children to charitable institutions, see § 2850.
As to crime of enticing a child from the Georgia Industrial
Home, see § 112, P. C. ; as to crime of harboring abscond-
ing child of same, see § 113, P. C.
Exceptions by Mother Not Proper Procedure. — The mother
of the child committed to the Industrial Home who was
not a party to the proceeding, can not bring to the Supreme
Court a judgment of commitment under this section, for re-
view, by bill of exceptions. If any rights of hers with
respect to the child have been invaded, habeas corpus or
some other appropriate proceeding may furnish her a
remedy. Murray v. Tarver, 127 Ga. 378, 56 S. E. 417.
§ 2863. Duty of officers and others to report
children to judge. — It shall be the duty of any
arresting officer in this State, or any citizen of the
commonwealth, who may know of such child or
children embraced in the class or classes described
in the preceding section, to make the facts known
to any judge of the superior court or court of rec-
ord in this State by a written affidavit; where-
upon such judge shall order the child or children
brought before him and shall carefully examine
into the facts, and also examine said child or chil-
dren, and should, in his judgment, the child or chil-
dren, under the facts, come within the class or
classes of children named in the preceding section,
then, in that case, he may in his discretion order
such child or children committed to the Georgia
Industrial Home, or some other similar undenom-
inational institution in this State willing and
ready to receive them, until such child or children
shall have attained the age of sixteen years: Pro-
vided, however, that any child so committed to
such institution may be withdrawn from the same
upon the application for or in behalf of such child,
made to the ordinary of the county from which the
child is committed, upon sufficient reason therefor
shown as for the best interests of said child, in the
discretion of said ordinary.
§ 2864. Maintenance fund. — The proper au-
thorities of the county from which such child or
children is committed may pay out of the pauper
or educational funds of such county, to the
proper authorities of said institution to which said
child or children is committed, a maintenance fund
such as may be agreed on by said county author-
ities and the authorities of said institution, not to
exceed the sum of $50.00 per annum for each child
so committed, as long as such child is an inmate of
such institution, and the proper officers of such
institution shall have the right to make claim up-
on the county from which such child be committed
for such agreed amount per annum for each child
so committed.
§ 2865. Committee from the General Assembly
to visit institution. — The president of the Senate
and speaker of the House of Representatives of
this State shall annually appoint from the mem-
bers of the General Assembly of this State a
[715]
2866
FRATERNAL BENEFICIARY ORDERS
§ 2871
special committee of nine, six from the House and
three from the Senate, whose duty it shall be to
visit the Georgia Industrial Home, and such other
institutions as shall have inmates committed to
them under this law, and look into the conduct
and management of such institutions. The officers
of each and all such institutions shall make a re-
port to the General Assembly, through the com-
mittee, of the number and names of the inmates
from each county under this law, together with
date of entrance, and as to the general work of the
institution. And such committee so appointed
shall visit said institution without notice, inspect
same, and render a report to the General Assembly
of this State as to the condition of each and every
institution so visited, together with such com-
ments upon the work there being done as they
may see fit and proper.
SECTION
Fraternal Beneficiary Orders.
§ 2866. Defined. — A fraternal beneficiary order,
association, or society is a corporation, society, or
voluntary association which has "no capital stock,
but is formed or organized and carried on for the
benefit of its members and their beneficiaries, and
having a representative form of government and a
lodge system, with ritualistic form of work for the
meeting of its lodges, chapters, councils, or other
designated subordinate bodies, and the benefits,
insurance, charity, or relief shall be payable by a
grand or supreme body of the same, excepting
sick benefits, which may also be paid by local or
subordinate bodies. Such grand or supreme
bodies may be composed of its officers, incorpora-
tors, representatives elected by local, district, or
grand bodies, past officers, and standing com-
mittees. Such orders or associations may make a
constitution, by-laws, rules, and regulations con-
sistent with the existing laws of the State, for the
government of all under its authority, for the
management of its properties, and the due and
orderly conduct of its affairs. Acts 1900, p. 71.
Cross References. — See 2 Cum. Dig. 708, 754. As to
when insurance companies may transact business, see §
2418. As to chartering domestic fraternal orders, see §
2877. As to definition of lodge system, see § 2877 (5). As
to criminal liability for acting for illegal fraternal order,
see §§ 629, 630, P. C.
Editor's Note — As § 2877 (38) of this code provides that
the acts of 1914, [Acts 1914, p. 99], which are incorporated
in this code as §§ 2877 (4) -2877 (39), shall not apply to
societies whose membership does not exceed 5000 members,
this section and §§ 2867 to 2873 seem to be still in effect.
No Opportunity to Be Initiated Not Defense to Note. —
Where a fraternal benefit order as defined by this section
issues a policy of insurance and accepts from the policy-
holder a note for the premium, it is no defense to an ac-
tion on the note that the maker thereof has never had an
opportunity to be initiated into one of the subordinate lodges
of the order. Brown v. Bowman, 10 Ga. App. 707, 73 S. E-
1078.
Effect of Admission that Society Is a Benefit Order. —
The admission that a mutual benefit society, organized to
do an insurance business, is a fraternal benefit order, duly
licensed as such by the state, is equivalent to an admis-
sion that the order has a representative form of govern-
ment and a lodge system such as is described in this sec-
tion. Brown v. Bowman, 10 Ga. App. 707, 73 S. E. 1078.
Cited in Puryear v. Farmers Mutual Ins. Asso., 137 Ga.
579, 580, 73 S. E. 851; Fraternal Life, etc., Asso. v. Evans,
140 Ga. 284, 78 S. E. 915.
[7
§ 2867. Benefits. — Such orders or associations
may make provision for the payment of benefits in
case of death, sickness, temporary or permanent
physical disability, either as the result of disease,
accident, or old age: Provided, the period of life at
which payment for old age commences shall not be
under seventy years. Any such order or association
may also accumulate, maintain, apply, or disburse
among its membership a reserve, emergency, or
other funds, as may be provided in its constitution
and laws: Provided, however, that no profit or
gain shall be added to the payments made by a
member.
§ 2868. Assessments; payments. — The funds
from which the payment of benefits shall be made,
and the funds from which the expenses shall be
defrayed, shall be derived from assessments, dues,
or other payments collected from its members, as
may be provided by the constitution or- by-laws of
such order or association. Payment of death bene-
fits shall be to families, heirs, blood relatives,
affianced huslband, or affianced wife of, or to per-
sons dependent upon, the member, as may be
designated by the member.
As to definition of a life insurance contract, see § 2496.
§ 2869. By what law governed. — Such orders or
associations shall be governed by this Section, and
shall be exempt from the provisions of the insur-
ance laws of this State; and no law hereafter
passed shall apply to fraternal beneficiary orders or
associations unless it is expressly designated there-
in.
As to exemption of fraternal orders from insurance laws,
see § 2461.
§ 2870. Existing associations; reports. — Any
fraternal beneficiary order, association, or society
of this or any other State, district, province, or
territory, now having members, or any lodge,
chapter, council, or subordinate branch duly estab-
lished and organized in this State, may continue
its operations and business in this State: Pro-
vided, that it hereafter complies with the provi-
sions of this Section regulating annual reports, and
the designation of the insurance commissioner as
the person upon whom process may be served, as
hereinafter provided.
§ 2871. Associations of other states. — Any
fraternal beneficiary order, association, or society
coming within the description as set forth in
paragraph 2866, organized under the laws of any
other State, province, district, or territory, not now
having lodges, councils, or other bodies or mem-
bers in this State, shall be permitted to do business
within this State when it shall have filed with the
insurance commissioner a certificate from the
official in charge of insurance matters in its home
State of incorporation that it is authorized to
transact business therein as a fraternal beneficiary
order or association; also a duly certified copy of
its charter and articles of association, and a copy
of its constitution and laws, certified to by its
secretary or corresponding officer, together with
the appointment of the insurance commissioner as
the person upon whom legal process may be
served as hereinafter provided.
As to right of associations of other states to do business
in this state, see §§ 2877 (1), 2877 (21).
16]
2872
FRATERNAL BENEFICIARY ORDERS
§ 2877(1)
§ 2872. Reports. — Every such corporation,
society, order, or association doing business in
this State shall, on or before the first day of March
each year, make and file with the insurance com-
missioner a report of its affairs and, operations
during the year ending the thirty-first day of De-
cember immediately preceding, which annual re-
port shall be in lieu of all other reports required by
any other law. Such reports shall be made on
blanks provided by the insurance commissioner,
and shall be verified under oath by the duly au-
thorized officers of any such order, and shall be
published, or the substance thereof, in the annual
report of the insurance commissioner under a
separate head, entitled "Fraternal Beneficiary
Societies."
As to annual reports of assessment companies, see §
2458. As to annual reports of fraternal orders, under act
of 1914, see § 2877 (28).
§ 2873. Reports; failure to make. — Any such
order, association, or society refusing or neglecting
to make said report to the insurance commissioner
shall be excluded from doing business within this
State, and the insurance commissioner shall at
once recall and .cancel their license.
As to right to revoke licenses, see § 15.
§ 2874. Service on such associations. — Each
such corporation, society, or association now do-
ing, or hereafter admitted to do, business in this
State, and not having its principal office within this
State and not being organized under the laws of
this State, may be served with each and all pro-
cesses of law, whether mesne or final, in any action
or special proceedings against said corporation,
society, or association, as follows: The party in
whose favor suit is being brought, through his at-
torney at law, shall notify in writing the insurance
commissioner of Georgia of his intention to bring
such suit or action, and request the said insurance
commissioner to appoint some resident of the
county of the residence of said plaintiff in said
case, and it shall be the duty of the insurance com-
missioner immediately to appoint some resident of
said county to accept service of process in all
cases in the name of the said corporation, society,
or association, and the said service when so made
shall be deemed and held and accepted by said
corporation, society, or association to be legal per-
sonal service and binding, the same as if made up-
on any agent or officer of said society or corpora-
tion: Provided, that the said party or his attorney
shall, twenty days before the appearance term for
said suit or action, cause to be sent to the insurance
commissioner a copy of the petition. When such
service has been made upon such attorney for serv-
ice on any such corporation, society, or associa-
tion, and copy of same has been forwarded to said
commissioner as hereinbefore provided, it shall be
the duty of said insurance commissioner immedi-
ately to notify the said corporation, society, or
association of such service by letter, enclosing
copy of said petition, together with process filed in
said case, prepaid, and directed to the secretary or
its corresponding officer.
Cross References. — As to service, on domestic insurance
companies, see § 2563, on foreign companies, see § 2564. As
to appointment of attorney by insurance commissioner to
receive service, see § 2447. As to .service of process under
Act of 1914, see § 2877 (22).
Section Is Cumulative. — The method of service on fra*
ternal beneficial associations, provided by this section, is
only cumulative. Service may be perfected upon an in-
surance association by serving its agent who procured the
issuance of the contract which is the basis of the suit, pro-
vided the agency continues until service. Liberty v. Bowen,
8 Ga. App. 325, 68 S. E. 1008.
§ 2875. Record of suits. — The insurance com-
missioner shall keep a record of all such attorneys
appointed for such service, together with the rec-
ord of when any such petitions with process were
received by him in any case, and forwarded to any
such corporation, society, or association.
§ 2876. License fee.— Superseded by §§ 2877(1)
and 2877(2).
Editor's Note. — This section has been superseded by §§
2877 (1) and 2877 (2) taken from the Acts of 1912, pp. 119,
139, 140.
§ 2877. Not applicable to certain orders. — Noth-
ing in this Section shall be held to affect or to ap-
ply to grand or subordinate lodges of Masons,
Knights of Pythias, Odd Fellows, Red Men,
Junior Order American Mechanics, or similar
orders that do not have as their principal object
the issuance of benefit certificates to members.
As to similar provision, see § 2877 (36). As to manner of
incorporating orders herein exempted, see editor's note to-
§ 2824.
Cited in National Council, J. O. U. A. M. v. Caraway,
13 Ga. App. 819, 81 S. E\ 243; In re Lodge of Masons-
Annuity, 286 Fed. 180, 186.
§ 2877(1). Non-resident fraternal orders; li-
censes.— Fraternal beneficiary societies or organi-
zations chartered under the laws of other States or
foreign governments, except societies which limit
their membership to any one hazardous occupa-
tion, shall not be allowed to do business in this
State with a membership of less than 1,000 mem-
bers, and they shall be required to submit evidence
to the Insurance Commissioner that they have in
cash or approved securities at least one assess-
ment on said membership. Said societies or as-
sociations shall file with Insurance Commissioner
of this State a certified copy of the rates charged
on classes of policies being issued by them. Said
societies or associations shall stipulate definitely
in the face of the policy the amount to be paid to
the beneficiaries under said policies, and said
amount shall not be contingent upon the amount
collected from the membership of any division or
branch of said society or association. No policies
shall be issued by such societies or associations
without subjecting applicants for insurance, to
medical examination.
The Insurance Commissioner is hereby author-
ized to investigate fully the financial condition of
such societies or associations, and if in his judg-
ment, the management of their affairs is not such
as to justify the issuance of a license to said society
or association, he is hereby fully empowered to
decline to license such societies or associations,
and in case they have already been licensed to re-
voke their authority to do business in this State as
hereinbefore provided for the revocation of license
of insurance companies. In the event such socie-
ties or associations fully comply with all the
requirements of the laws of this State, they may be
licensed to do business in Georgia upon the pay-
ment of a license fee of $40.00. Acts 1912, pp. 119,
138.
See editor's note under § 2877 (2).
[717]
§ 2877(2)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(7)
§ 2877(2). Chartering; domestic fraternal or-
ders; licenses. — Domestic fraternal beneficiary
societies or associations shall be chartered by the
Secretary of State, and shall conform to all the re-
quirements of the Act of 1893 with reference to the
incorporation of insurance companies except that
they shall not be required to have any capital
stock.
When such companies or associations have been
duly chartered by the Secretary of State and have
received a certificate from said officer of their in-
corporation, upon application to the Insurance
Commissioner, they may be authorized by said
officer to solicit applications for membership in
said societies or associations, under such rules and
regulations as may be prescribed by the Insurance
Commissioner. When such societies or associa-
tions have obtained not less than 300 bona fide ap-
plications for insurance, the advance assessments
on which have been paid, and a list of the sub-
scribers with their postoffice address and the
amount of their advance assessments has been
submitted to the Insurance Commissioner, and by
him verified, together with affidavit that said as-
sessments are deposited with some bank or trust
company duly certified by said bank or trust com-
pany, the Insurance Commissioner, if satisfied that
the character of the officers of such societies or
associations guarantees honest and efficient man-
agement of the association's affairs, shall issue li-
cense to such societies or associations to do busi-
ness in this State upon the payment of a license fee
of $40.00. No policies shall be issued by such
societies or associations without subjecting appli-
cants to medical examination. The Insurance
Commissioner is hereby authorized to investigate
fully the financial conditions of such societies or
associations at any time, and if in his judgment
the management of the affairs of such society or
association is not such as to justify the issuance of
the license, he is hereby fully empowered, to refuse
license to such societies or associations, and in case
they have already been licensed such license may
be revoked, as hereinbefore provided for the revo-
cation of license of insurance companies. Acts
1912, pp. 119, 139.
Editor's Note. — This act does not expressly exempt
secret orders that do not have as their principle object the
issuance of benefit certificates to members, as other similar
acts do, see editor's note under § 2824.
§ 2877(3). Form of government. — All foreign
or domestic fraternal companies, corporations,
orders, associations and beneficiary societies
soliciting business in this State must have a rep-
resentative form of government. Any such com-
pany, corporation, order, association or beneficiary
society shall be deemed to have a representative
form of government when it shall provide in its
constitution and laws for a supreme legislative or
governing body composed of representatives
elected either by the members or by delegates
elected either directly or indirectly by the mem-
bers together, with such other members as may be
prescribed by its constitution and laws; provided,
that the elective members shall constitute a ma-
jority in number, and have not less than .two-
thirds of the vote, nor less than the votes re-
quired to amend its constitution and laws. No
member of any domestic insurance fraternity, who
is a director or manager of such insurance frater-
nity, shall have a contract for fees or premiums
from such fraternity. Acts 1912, pp. 119, 140.
SECTION 7A.
Other Regulations of Fraternal Benefit
Societies.
§ 2877(4). Fraternal benefit society defined. —
Any corporation, society, order or voluntary asso-
cation, without capital stock, organized and car-
ried on solely for the mutual benefit of its members
and their beneficiaries and not for profit, and hav-
ing a lodge system with ritualistic form of work
and representative form of government and which
shall make provision for the payments of benefits,
in accordance with Section 2877(8), is hereby de-
clared to be a fraternal benefit society. Acts 1914,
p. 99.
See § 2866.
As to the penalty for the violation of this section, and
the thirty- five sections next following, see P. C... § 630 (1).
Editor's Note. — In view of the holding in W. O. W. v.
Beard, 26 Ga. App. 130, 105 S. E. 629 it seems that the pro-
visions of these statutes regulating fraternal benefit so-
cieties is merely an amplification of the provisions for the
regulation and government of such corporate entities, per-
taining to their duties and responsibilities to the state, the
public, and their members, and was not intended to change
radically or materially the provisions enacted prior thereto
relating to the regulation' of policies, etc., or to legislate
inferentially or by implication upon the settled rule of con-
struction governing contracts of insurance. See the note
under § 2877 (7).
Cited in Columbian Woodmen v. Eppes, 24 Ga. App. 762,
102 S. E- 174.
§ 2877(5). Lodge system defined. — Any society
having a supreme governing legislative body and
subordinate lodges or branches by whatever name
known, into which members shall be elected,
initiated, and admitted in accordance with its con-
stitution, laws, rules, regulations, and prescribed
ritualistic ceremonies, which subordinate lodges
or branches shall be required by the laws of such
society to hold regular or stated meetings at least
once in each month, shall be deemed to be operated
on the lodge system. Acts 1914, p. 99.
§ 2877(6). Representative form of government.
— Any such society shall be deemed to have a rep-
resentative form of government when it shall
provide in its constitution and laws for a supreme
legislative or governing body, composed of rep-
resentatives elected either by the members or by
delegates elected directly or indirectly by the mem-
bers, together with such other members as may be
prescribed by its constitution and laws; provided,
that the elective members shall constitute a ma-
jority in number and have not less than two-thirds
of the votes, nor less than the votes required to
amend its constitution and laws: and provided
further, that the meetings of the supreme or gov-
erning body, and the election of officers, represen-
tatives or delegates shall be held as often as once
in four years. The members, officers, representa-
tives or delegates of a fraternal benefit society
shall not vote by proxy. Acts 1914, pp. 99, 100.
§ 2877(7). Insurance laws not applied. — Except
as herein provided, such societies shall be governed
by this Act, and shall be exempt from all provi-
sions of the insurance laws of this State, not only
[718]
§ 3B77W
K.£,LjU1v/^1 1U1NO KJV ri^Al CJ\1N AL, £> rViN r, r 1 ± DUU£/liJ2r0
§ mniW)
in governmental relation with the State, but for
every other purpose, and no law hereafter enacted
shall apply to them, unless they be expressly
designated therein. Acts 1914, pp. 99, 100.
The general insurance law is not applicable to mutual
benefit associations, such as the one involved in the pres-
ent case. Union Fraternal League v. Walton, 112 Ga.
315, 37 S. E. 389; Fraternal Life Association v. Evans, 140
Ga. 284, 78 S. F. 915; Perry v. Tweedy, 128 Ga. 402, 57 S. F.
782, 119 Am. St. R. 393, 11 Ann. Cas. 46; District Grand
Lodge No. 18 v. Cothran, 156 Ga. 631, 632, 119 S. F. 594.
This section does not change the law of §§ 2479, 2480, 2481,
and 2483 so as to render a certificate of insurance issued by
a fraternal benefit society null and void on account of un-
true but immaterial statements contained in the applica-
tion; this is the rule although such statements are war-
ranted to be true, with the further proviso that if any of
them be untrue the policies become null and void. W. O.
W. v. Beard, 26 Ga. App. 130, 105 S. F. 629. See editor's
note under § 2877 (1).
§ 2877(8). Benefits; powers of society. — Sub-
section 1. Every society transacting business under
this Act shall provide for the payment of death
benefits, and may provide for the payment of
benefits in case of temporary or permanent
physical disability, either as the result of disease,
accident or old age; provided, the period of life at
which the payment of benefits for disability on ac-
count of old age shall commence, shall not be un-
der seventy years, and may provide for monuments
or tombstones to the memory of its deceased mem-
bers, and for the payment of funeral benefits. Such
societ}- shall have the power to give a member,
when permanently disabled or on attaining the
age of seventy, all, or such portion of the face
value of his certificate as the laws of the society
may provide; provided, that nothing in this Act
contained shall be so construed as to prevent the
issuing of benefit certificates for a term of years
less than the whole of life which are payable upon
the death or disability of the member occurring
within the term for which the benefit certificate
may be issued. Such society, shall, upon written
application of the member, have the power to ac-
cept a part of the periodical contributions in cash,
and charge the remainder, not exceeding one-half
of the periodical contribution, against the certifi-
cate with interest payable or compounded annually
at a rate not lower than four per cent per annum;
provided, that this privilege shall not be granted
except to societies which have readjusted or may
hereafter readjust their rates of contributions, and
to contracts affected by such readjustments.
Sub-section 2. Any society which shall show by
the annual valuation hereinafter provided for that
it is accumulating and maintaining the reserve not
lower than the usual reserve computed by the
American Experience Table and four per cent, in-
terest, may grant to its members extended and
paid-up protection, or such withdrawal equities as
its constitution and laws may provide; provided,
that such grants shall in no case exceed in value
the portion of the reserve to the credit of such
members to whom they are made. Acts 1914, pp.
99, 100.
Effect of Material Misrepresentations. — There can be no
valid recovery where the policy is void because of ma-
terially false statements contained in the application. Those
representations covenanted to be true by the applicant
which constituted the basis of the issuance of the contract
are material. Trav. Pro. Asso. v. Belote, 21 Ga. App. 610,
91 S. E. 834.
Color Blindness as Total Blindness. — Where the provisions
[7
of a policy insured against total blindness in one or both
eyes but not against impaired eyesight, the holder can not
recover as for a total and permanent blindness upon a peti-
tion alleging that he had become color blind in both eyes.
Fallin v. Locomotive Engineers' Mut. Life & Accident Ins.
Asso., 24 Ga. App. 764, 102 S. E. 177.
Impairment of Contracts by Change of Laws of Society.
— An order can not defeat or abridge an essential and sub-
stantial right created in a certificate issued by it sub-
sequently adopting amendments to its constitution or by-
laws. A provision in the certificate that a certain propor-
tionate part of the value of the covenant will be paid to the
assured as an accident benefit creates such an essential and
substantial right in the assured. Columbian Woodmen v.
Eppes, 24 Ga. App. 762, 102 S. E. 174.
This is true even though the certificate stipulated that it
was accepted by the holder subject to the laws of the order
then of force or which might thereinafter be enacted. Colum-
bian Woodmen v. Eppes, 24 Ga. App. 762, 102 S. E. 174.
An alteration made subsequently to the certificate will
be given a prospective operation in the absence of a clear
intent that it shall operate retrospectively. Columbian Wood-
men v. Eppes, 24 Ga. App. 762, 102 S. E. 174.
§ 2877(9). Beneficiaries. — The payment of
death benefits shall be confined to wife, husband,
relative by blood to the fourth degree, father-in-
law, mother-in-law, son-in-law, daughter-in-law,
stepfather, stepmother, stepchildren, children by
legal adoption, or to a person or persons dependent
upon the member; provided, that if after the is-
suance of the original certificate the member shall
become dependent upon an incorporated charitable
institution, he shall have the privilege with the
consent of the society to make such institution his
beneficiary. Within the above restrictions each
member shall have the right to designate his bene-
ficiary, and, from time to time, have the same
changed in accordance with the laws, rules or reg-
ulations of the society, and no beneficiary shall
have or obtain any vested interest in the said bene-
fit until the same has become due and payable
upon the death of the said member, provided, that
any society may, by its laws, limit the scope of
beneficiaries within the above classes; provided,
however, this section shall not be construed as
prohibiting the payment by such society of any
benefit or benefits to other members of the society
in good standing when the said benefit or benefits
are provided for in the policies or certificates of
such society. Acts 1914, pp. 99, 101; 1917, p. 104.
Change of Beneficiary — Power of Beneficiary to Prevent.
— Although a beneficiary in a certificate does not have such
interest as to prevent the member from changing the bene-
ficiary, yet where a third party by false and malicious de-
famation of such beneficiary induces the member to change
the certificate and appoint such person as the new bene-
ficiary, who collects the amount of the certificate upon the
death of a member, when otherwise the original beneficiary
would have received such payment, the original beneficiary
may bring an action for damages against a person so act-
ing. Mitchell v. Langley, 143 Ga. 827, 85 S. E. 1050.
Same — Parol Agreement as Basis for Action. — Where th<»
beneficiary for a valuable consideration possesses the policy
but later the insured indicated to a third party the desire to
make him beneficiary and such third party gained posses-
sion of the policy by instituting a bail-trover suit and giv-
ing bond, there was no such unqualified right of possession
in the third party as would authorize him to surrender the
policy to the association for a change of beneficiary as
contemplated by its by-laws, nor was the payment of a
part of the fee a satisfaction for making such change, and
where the association failed to change the policy, the in-
sured dying in the meantime and the trover suit being dis-
missed, the third party can not bring action to enforce a
change of beneficiary. Page v. Bell, 146 Ga. 680, 92 S. E. 54.
Dependent — Niece Living with Parents. — The evidence in
W. O. W. v. Warner, 25 Ga. App. 409, 103 S. E. 861, was
held sufficient to sustain a verdict holding the niece of the
insured wife a dependent even though she lived with her
19]
§ 2877 I 10;
KnU-Uiv/VlIUlNb Ui1 fKAlJiKWAI^ ±5±!<JN JiJF 1 1 b'Utlli 110,$
§ 2877(15)
parents for a great part of her life, though receiving finan-
cial aid from the insured.
Petition Insufficient to Show Beneficiary. — A petition
which neither showed that the plaintiff was an actual bene-
ficiary in a certificate or that she was one who in a court
of equity was entitled to be treated as a beneficiary, failed
to set out a cause of action. Smith v. Lodge, 145 Ga. 607,
89 S. E. 688.
§ 2877(10). Qualifications for membership. —
Any society may admit to beneficial membership
any person not less than sixteen and not more than
sixty years of age, who has been examined by
legally qualified physician, and whose examination
has been supervised and approved in accordance
with the laws of the society; provided,, that any
beneficiary member of such society who shall ap-
ply for a certificate providing for disability bene-
fits, need not be required to pass an additional
medical examination therefor. Nothing herein
contained shall prevent such society from accept-
ing general or social members. Acts 1914, pp. 99,
101.
Effect of Official Falsely Stating Age of Applicant.— If an
application to join an order is made by one who in fact
knows that he is beyond the age for membership according
to the constitution, and, without the knowledge of the ap-
plicant, the application is falsely filled out by a "delegated
member" so as to make the age of the applicant come with-
in the rule prescribed by the order, and is in due course
forwarded to the proper officials, by whom it is in good
faith passed upon and accepted, the act of such "delegated
member" in falsely filling out the application can not be
taken as the act of the association, he not then acting
within the scope of his duties and authority. Trav. Pro.
Assoc, v. Belote, 21 Ga. App. 610, 94 S. E. 834.
Same — Estoppel or Ratification by Acquiescence. — The fact
that the insurer, without knowledge of the above facts, con-
tinued to recognize and treat such person as a regular
member of the association would not operate as a waiver
or estoppel; nor could it be held that in so doing the in-
surer extended the authority of the person falsely filling
out the application, by ratifying his unknown act. Trav.
Pro. Asso. v. Belote, 21 Ga. App. 610, 94 S. E- 834.
Cited in Columbian Woodmen v. Eppes, 24 Ga. App. 762,
102 S. E. 174.
§ 2877(11). Certificate. — Every certificate is-
sued by any such society shall specify the amount
of benefit provided thereby, and shall provide that
the certificate, the charter or articles of incorpora-
tion, or, if a voluntary association, the articles of
association, the constitution and laws of the society
and the application for membership and medical
examination, signed by the applicant, and all
amendments, to each thereof, shall constitute the
agreement between the society and the member,
and copies of the same certified by the secretary of
the society, or corresponding officer, shall be re-
ceived in evidence of the. terms and conditions
thereof, and any changes, additions or amend-
ments to said charter or articles of incorporation,
or articles of the association, if a voluntary associa-
tion, constitution or laws duly made, or enacted
subsequent to the issuance of the benefit certificate
shall bind the member and his beneficiaries, and
shall govern and control the agreement in all re-
spects the same as though such changes, additions
or amendments had been made prior to and were
enforced at the time of the application for member-
ship. Acts 1914, pp. 99, 102.
Cited in Columbian Woodmen v. Eppes, 24 Ga. App. 762,
102 S. E- 174.
§ 2877(12). Funds; periodical contributions;
tables of experience; liabilities. — Sub-section 1.
Any society may create, maintain, invest, disperse
and apply an emergency, surplus or other similar
funds in accordance with its laws. Unless other-
wise provided in the contract, such funds shall be
held, invested, and disbursed for the use and bene-
fit of the society and no member or beneficiary
shall have or acquire individual rights therein or
become entitled to any apportionment or the sur-
render of any part thereof, except as provided in
sub-section two of section 2877(8). The funds
from which benefits shall be paid and the funds
from which the expenses of the society shall be de-
frayed, shall be derived from periodical or other
payments by the members of the society and ac-
cretions of said funds; provided, that no society
shall hereafter be incorporated which does not pro-
vide for stated periodical contributions sufficient
to provide for meeting the mortuary obligations
contracted, when valued upon the basis of the
National Fraternal Congress Table of Mortality
as adopted by the National Fraternal Congress,.
August 23d, 1899, or any higher standard with in-
terest assumption not more than four per cent,
per. annum, nor shall any such society be admitted
to transact business in this State which does not
provide for stated periodical contributions suffi-
cient to provide for meeting the mortuary obliga-
tions contracted when valued upon one of the
bases named in Section 2877(29) and applicable
thereunder to such society.
No society, domestic or foreign, shall hereafter
be incorporated or admitted to write or accept
members for permanent disability benefits except
upon tables based upon reliable experience with an
interest assumption not higher than four per cent.
Sub-section 2. Deferred payments or install-
ments of claims shall be considered as fixed liabili-
ties on the happening of the contingency upon
which such payments or installments are thereafter
to be paid: such liability shall be the present value
of such future payments or installments upon the
rate of interest and mortality assumed by the
society for valuation, and every society shall main-
tain a fund sufficient to meet such liability regard-
less of proposed future collections to meet any
such liabilities. Acts 1914, pp. 99, 102.
§ 2877(13). Investments. — Every society shall
invest its funds only in securities permitted by the
laws of this State for the investment of the assets
of life insurance companies; provided, that any
foreign society permitted or seeking to do business
in this State, which invests its funds in accordance
with the laws of the State in which it is incorpo-
rated, shall be held to meet the requirements of
this Act for the investment of funds. Acts 1914,
pp. 99, 103.
§ 2877(14). Distribution of funds. — Every pro-
vision of the laws of the society for payment iby
members of such society, in whatever form made,
shall distinctly state the purpose of the same and
the proportion thereof which may be used for ex-
penses, and no part of the money collected for
mortuary or disability purposes on the net accre-
tions of either or any of said funds shall be used
for expenses. Acts 1914, pp. 99, 104.
§ 2877(15). Organization. — Seven or more per-
sons, citizens of the United States, and a majority
of whom are citizens of this State, who desire to
[720 ]
2877(15)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(15)
rm a fraternal benefit society, as defined by this
ct may make and sign (giving their addresses)
id acknowledge before some officer competent to
ke acknowledgment of deeds, articles of incor-
>ration, in which shall be stated:
First: The proposed corporate name of the
ciety, which shall not so closely resemble the
.me of any society or insurance company already
ansacting business in this State as to mislead the
iblic or to lead to confusion:
Second: The purpose for which it is formed —
hich shall not include more liberal powers than
e granted by this Act, provided that any lawful
cial, intellectual, educational, charitable, benev-
ent, moral or religious advantages may be set
rth among the purposes of the society — and the
ode in which its corporate powers are to be exer-
sed.
Third: The names, residences and official titles
all the officers, trustees, directors or other per-
ns who are to have and exercise the general con-
d1 and management of the affairs and funds of
e society for the first year or until the ensuing
action at which all such officers shall be elected
' the supreme legislative or governing body,
hich election shall be held not later than one
:ar from the date of the issuance of the permanent
rtificate. Such articles of incorporation and
ily certified copies of the constitution and laws,
les and regulations, and copies of all proposed
rms of benefit certificates, applications therefor
id circulars to be issued by such society and a
md in the sum of five thousand dollars, with
reties approved by the Insurance Commissioner,
mditioned upon the return of the advanced pay-
ents as provided in this section, to applicants, if
e organization is not completed within one year,
tall be filed with the Insurance Commissioner,
ho may require such further information as he
:ems necessary, and if the purposes of the society
•nform to the requirements of this Act, and all
•ovisions of law have been complied with, the In-
irance Commissioner shall so certify and retain
id record, (or file), the articles of incorporation,
id furnish the incorporators a preliminary certifi-
ite authorizing said society to solicit members as
;reinafter provided.
Upon receipt of said certificate from the Insur-
lce Commissioner, said society may solicit mem-
;rs for the purpose of completing its organization
id shall collect from each applicant the amount of
Dt less than one regular monthly payment, in ac-
)rdance with its table of rates as provided by its
institution and laws, and shall issue to each such
jplicant a receipt for the amount so collected, but
3 such society shall incur any liability other than
>r such advanced payments, nor issue any benefit
^rtificate nor pay or allow, or offer, or promise to
ay or allow, to any person any death or disability
enefit until actual bona fide applications for death
enefit certificates have been secured upon at least
ve hundred lives for at least one thousand dollars
ich, and all such applicants for death benefits
aall have been regularly examined by legally
ualified practicing physicians, and certificates of
Jch examinations have been duly filed and ap-
roved by the chief medical examiner of such
Dciety; nor until there shall be established ten
[<
subordinate lodges or branches into which said
five hundred applicants have been initiated; nor
until there has been submitted to the Insurance
Commissioner under oath of the president and
secretary, or corresponding officers of such society,
a list of such applicants, giving their names, ad-
dresses, dates examined, dates approved, dates
initiated, name and number of the subordinate
branch of which each applicant is a member,
amount of benefits to be granted, rate of stated
periodical contributions, which shall be sufficient
to provide for meeting the mortuary obligations
contracted, when valued for death benefits upon
the basis of the National Fraternal Congress Table
of Mortality, as adopted by the National Fraternal
Congress, August 23d, 1899, or any higher stand-
ard at the option of the society, and for disability
benefits by tables based upon reliable experience
and for combined death and permanent total dis-
ability benefits by tables based upon reliable
experience, with an interest assumption not higher
than four per cent, per annum; nor until it shall be
shown to the Insurance Commissioner by the
sworn statement of the treasurer, or corresponding
officer of such society, that at least five hundred
applicants have each paid in cash at least one regu-
lar monthly payment as herein provided per one
thousand dollars of indemnity to be effected, which
payments in the aggregate shall amount to at least
twenty five hundred dollars; all of which shall be
credited to the mortuary or disability fund on ac-
count of such applicants, and no part of which may
be used for expenses.
Said advanced payment shall, during the period
of organization, be held in trust, and if the organi-
zation is not completed within one year as herein-
after provided, returned to said applicants.
The Insurance Commissioner may make such
examination and require such further information
as he deems advisable, and, upon presentation of
satisfactory evidence that the society has complied
with all the provisions of law, he shall issue to such
society a certificate to that effect. Such certificate
shall be prima facie evidence of the existence of
such society at the date of such certificate.
The Insurance Commissioner shall cause a rec-
ord of such certificate to be made and a certified
copy of such record may be given in evidence with
like effect as the original certificate.
No preliminary certificate granted under the pro-
visions of this section shall be valid after one year
from its date or after such further period, not ex-
ceeding one year, as may be authorized by the In-
surance Commissioner, upon cause shown; unless
the five hundred applicants herein required have
been secured and the organization has been com-
pleted as herein provided; and the articles of in-
corporation and all proceedings thereunder shall
become null and void in one year from the date of
said preliminary certificate, or at the expiration of
said extended period, unless such society shall
have completed its organization and commenced
business as herein provided. Acts 1914, pp. 99,
104.
As to applicability of this act to societies whose member-
ship do not exceed five thousand, see § 2877 (38).
Editor's Note As to whether or not this section con-
forms to the constitutional requirements for the granting of
corporate franchises and privileges, quaere.
Organization of New Posts — Fraternal Regulation Con-
21]
§ 2877(16)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(2i;
strued. — The provisions of the constitution of a fraternal
benefit association were construed to mean that the officials
of a State division of the association may delegate some
member of the order to organize a "local post" in any town
or city within its jurisdiction upon the application of not
less than "twenty members in good standing" in the order,
who are residents of such place, and the member so dele-
gated in accordance with the provisions of the constitution
represents the association itself in organizing such members
into a "local post" and in delivering to it the charter; but
under such provision the member delegated for such pur-
pose is not empowered to represent the association in fill-
ing out, receiving, and forwarding applications for new
members. Trav. Pro. Asso. v. Belote, 21 Ga. App. 611, 94
S. E. 834.
§ 2877(16). Charter, when void. — When any
domestic society shall have discontinued business
for the period of one year, or has less than four
hundred members, its charter shall become null
and void. Acts 1914, pp. 99, 107.
§ 2877(17). Power to adopt constitution and by-
laws.—Every such society shall have the power to
make a constitution and by laws for the govern-
ment of the societjr, the admission of its members,
the management of its affairs and the fixing and
readjusting of the rates of contribution of its mem-
bers from time to time; and it shall have the power
to change, alter, add to or amend such constitu-
tion and by-laws and shall have such other powers
as are necessary and incidental to carry into effect
the objects and purposes of the society. Acts 1914,
pp. 99, 107.
§ 2877(18). Societies already in business, rights
of. — Any society now engaged in transacting busi-
ness in this State may exercise, after the passage
of this Act all of the rights conferred thereby, and
all of the rights, powers and privileges now exer-
cised or possessed by it under its charter or articles
of incorporation not inconsistent with this Act, if
incorporated; or, if it be a voluntary association,
it may incorporate hereunder. But no society al-
ready organized shall be required to reincorporate
hereunder, and any such society may amend its
articles of incorporation from time to time in the
manner provided therein or in its constitution and
laws, and all such amendments shall be filed with
the Insurance Commissioner and shall become
operative upon such filing, unless a later time be
provided in such amendments or in its articles of
incorporation, constitution or laws. Acts 1914, pp.
99, 107.
§ 2877(19). Mergers and transfers. — No domes-
tic society shall merge with or accept the transfer
of the membership or funds of any other society
unless such merger or transfer is evidenced by a
contract in writing setting out in full the terms
and conditions of such merger or transfer, and filed
with the Insurance Commissioner of this State, to-
gether with a sworn statement of the financial
condition of each of said societies, by its president,
and secretary, or corresponding officers, and a
certificate of such officers, duly verified under oath
of said officers of each of the contracting societies,
that such merger or transfer has been approved by
a vote of two-thirds of the members of the supreme
legislative or governing body of each of said
societies.
Upon the submission of said contract, financial
statements and certificates, the Insurance Com-
missioner shall examine the same, and, if he shall
find such financial statements to be correct and th(
said contract to be in conformity with the provi
sions of this section, and that such merger or trans
fer is just and equitable to the members of eacl
of said societies, he shall approve said merger o)
transfer, issue his certificate to that effect anc
thereupon the said contract of merger or transfei
shall be of full force and effect.
In case such contract is not approved, the fact o
its submission and its contents shall not be dis
closed by the Insurance Commissioner. Acts 1914
pp. 99, 108.
§ 2877(20). Annual license. — Societies whiclj
are now authorized to transact business in thii
State may continue such business until the firs!
day of April next succeeding the passage of thi:
Act, and the authority of such societies may there]
after be renewed annually, but in all cases ,to terj
minate on the first day of the succeeding April
provided, however, the license shall continue ill
full force and effect until the new license be issueu
or specifically refused. For each such license oj
renewal the society shall pay the Commissioner oj
Insurance forty dollars. A duly certified copy oj
duplicate of such license shall be prima facie evij
dence that the license is a fraternal benefit society
within the meaning of this Act. Acts 1914, pp. 99J
109.
§ 2877(21). Admission of foreign society. — N«j
foreign society now transacting business, organj
ized prior to the passage of this Act, which is no
now authorized to transact business in this State
shall transact any business herein without a licens
from the Insurance Commissioner. Any sucl
society shall be entitled to a license to transac
business within this State upon filing with th
Commissioner a duly certified copy of its charte
or articles of association; a copy of its constitutioi
and laws, certified by its secretary or correspond
ing officer; a power of attorney to the commis
sioner as hereinafter provided; a statement of it
business under oath of its president and secretary
or corresponding officers, in the form required b
the commissioner, duly verified by an examinatioi
made b3r the supervising insurance official of it
home State or other State satisfactory to the Com
missioner of Insurance of this State; a certificat
from the proper official in its home State, provinc
or country, that the society is legally organized
a copy of its contract, which must show that bene
fits are provided for by periodical, or other pay
ments by persons holding similar contracts; am
upon furnishing the commissioner such other in
formation as he may deem necessary to a prope
exhibit of its 'business and plan of working, an-
upon showing that its assets are invested in accord
ance with the laws of the State, territory, districl
province or country where it is organized, he shal
issue a license to such society to do business in thi
State until the first day of the succeeding April
and such license shall, upon compliance with th'
provisions of this Act, be renewed annually, but h
all cases, to terminate on the first day of the sue
ceeding April; provided, however, that licens
shall continue in full force and effect until the ne\
license be issued or specifically refused.
Anv foreign society desiring admission to thi
[722 ]
2877(22)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(27)
:ate, shall have the qualifications required of
)mestic societies organized under this Act, upon
valuation by any one of the standards authorized
Sec. 2877(29), and have its assets invested as re-
ared by the laws of the State, territory, district,
tuntry, or province where it is organized.
For each such license or renewal the society
all pay the commissioner twenty dollars. When
e commissioner refuses to license any society, or
vokes its authority to do business in this State,
: shall reduce his ruling, order or decision to writ-
er and file the same in his office, and shall furnish
copy thereof together with a statement of his
ason, to the officers of the society, upon request,
d the action of the Commissioner shall be re-
awable by proper proceedings in any court of
mpetent jurisdiction within the State; provided,
iwever, that nothing contained in this or the pre-
ding section shall be taken or construed as pre-
nting any such society from continuing in good
ith all contracts made in this State during the
ne such society was legally authorized to trans-
t business herein. Acts 1914, pp. 99, 109.
§ 2877(22). Power of attorney and service of
ocess. — Every society, whether domestic or
reign, now transacting business in this State
all, within thirty days after the passage of this
;t, and every such society hereafter applying for
mission, shall, before being licensed, appoint in
•iting the Insurance Commissioner and his suc-
ssors in office to be its true and lawful attorney,
on whom all legal process in any action or pro-
eding against it shall be served, and in such
•iting shall agree that any lawful process against
which is served upon such attorney shall be of
I same legal force and validity as if served upon
e society and that the authority shall continue in
rce so long as any liability remains outstanding
this State.
Copies of such appointment, certified by said In-
rance Commissioner, shall be deemed sufficient
idence thereof and shall be admitted in evidence
th the same force and effect as the original there-
might be admitted. Service shall only be made
ton such attorney, must be made in duplicate
>on the Insurance Commissioner, or in his absence
'On the person in charge of his office, and shall be
emed sufficient service upon such society; pro-
ied, however, that no such service shall be valid
binding against any such society when it is re-
tired thereunder to file its answer, pleading or
fense in less than thirty days from the date of
ailing the copy of such service to such society,
hen legal process against any such society is
rved upon said Insurance Commissioner he shall
rthwith forward by registered mail one of the
iplicate copies prepaid and directed to its secre-
ry or corresponding officer. Legal process shall
>.t be served upon any such society except in the
anner provided herein. Acts 1914, pp. 99, 110.
Hris section is not unconstitutional because in violation
the constitution, § 6437 or §§ 6358, 6359. Wilson v. Su-
eme Forest Woodmen Circle, 156 Ga. 403, 119 S. E. 394.
Effect of Failure to Serve as Herein Provided. — The
rnishee not having been served with a summons of
rnishment in this case in accordance with the provisions
this section, the garnishee did not have its day in court,
d the judgment rendered against it is void for that rea •
n. Wilson v. Supreme Forest Woodmen Circle, 156 Ga.
J, 118 S. F. 394.
[7
§ 2877(23). Place of meeting — location of office.
— Any domestic society may provide that the meet-
ings of its legislative or governing body may be
held in any State, district, province, or territory
wherein such society has subordinate branches,
and all business transacted at such meetings shall
be as valid in all respects as if such meetings were
held in this State; but its principal office shall be
located in this State. Acts 1914, pp. 99, 111.
§ 2877(24). No personal liability.— Officers and
members of the supreme, grand or any subordinate
body of any such incorporated society shall not be
individually liable for the payment of any disability
or death benefit provided for in the laws and agree-
ments of such society; but the same shall be pay-
able only out of the funds of such society and in
the manner provided by its laws. Acts 1913, pp.
99, 111.
§ 2877(25). Waiver of provisions of laws of
society. — The Constitution and laws of the society
may provide that no subordinate body, nor any
of its subordinate officers or members shall have
the power or authority to waive any of the provi-
sions of the laws and constitution of the so-
ciety, and the same shall be binding on the so-
ciety and each and every member thereof and on all
beneficiaries of members. Acts 1914, pp. 99, 112.
Waiver of Condition by Local Officers. — This case is con-
trolled by the ruling in Sovereign Camp v. Ricks, 26 Ga.
App. 374, 106 S. F. 185. ■ In that case it was held that the
express terms of the identical insurance contract, provid
ing, as here, that the insured, within 30 days after enter-
ing upon certain kinds of described military service, should
notify the home office of the society of such fact, and pay
directly to it a prescribed additional war-risk premium,
could not be waived by the local agent of the society.
Sovereign Camp v. Griffin, 30 Ga. App. 217, 117 S. F. 261.
Same — Estoppel. — The principle of estoppel, although not
specifically dealt with in what was said in the Ricks' case,
can not operate to change the effect of the ruling there
made. Sovereign Camp v. Griffin, 30 Ga. App. 217, 117 S.
F. 261.
Waiver by Custom or Usage. — Where the by-laws of a
society provided that no officer, employer or agent of any
local lodge, nor any custom of any lodge or lodges with or
without the knowledge of any -officer should not have the
effect of changing or modifying, or waiving any of the
customs of a beneficiary certificate, it is impossible under
the terms of this section for the officers of any lodge to
change this rule by custom or usage. Bryant v. W. O.
W., 29 Ga. App. 259, 115 S. E. 285.
§ 2877(26). Benefit non-attachable.— No money
or other benefit, charity, or relief or aid to be paid,
provided or rendered by any such society shall be
liable to attachment, garnishment or other process,
or be seized, taken, appropriated or applied by any
legal or equitable process or operation of law to
pay any debt or liability of a member or benefici-
ary, or any other person who may have a right
thereunder, either before or after payment. Acts
1914, pp. 99, 112.
§ 2877(27). Amendments to constitution and
laws. — Every society transacting business under
this Act shall file with the Insurance Commissioner
a duly certified copy of all amendments of or ad-
ditions to its constitution and laws within ninety
days after the enactment of the same. Printed
copies of the constitution and laws as amended,
changed or added to, certified by the Secretary or
corresponding officer of the Society, shall be prima
facie evidence of the legal adoption thereof. Acts
1914, pp. 99, 112.
23 ]
§ 2877(28)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(28). Annual reports. — Every society
transacting business in this State shall annually,
on or before the first day of March, file with the
Insurance Commissioner, in such form as he may
require, a statement under oath of its president
and secretary or corresponding officers, of its
condition and standing on the thirty-first day of
December next preceding, and of its transactions
for the year ending on that date, and also shall
furnish such other information as the commis-
sioner may deem necessary to a proper exhibit
of its business and plan of working. The com-
missioner may at other times require any fur-
ther statement he may deem necessary to be
made relating to such society.
In addition to the annual report herein re-
quired, each society shall annually report to the
commissioner a valuation of its certificates in
force on December 31st, last preceding; exclud-
ing those issued within the year for which the
report is filed, in cases where the contributions
for the first year in whole or in part are used for
current mortality and expenses; provided, the
first report of valuation shall be made as of De-
cember 31st, 1912. Such report of valuation
shall show, as contingent liabilities, the present
mid-year value of the promised benefits, pro-
vided in the constitution and laws of such society
under certificates then subject to valuation; and,
as contingent assets, the present mid-year value
of the future net contributions provided in the
Constitution and laws as the same are in prac-
tice actually co'llccted. At the option of any so-
ciety, in lieu of the above, the valuation may
show the net value of the certificates subject to
valuation hereinbefore provided, and said net
value, when computed in case of monthly con-
tributions, may be the mean of the terminal
values for the end of the preceding and of the
current insurance years.
Such valuation shall be certified by a compe-
tent accountant or actuary, or, at the request
and expense of the society, verified by the actu-
ary of the department of insurance of the home
state of the society, and shall be filed with the
commissioner within ninety days after the sub-
mission of the last preceding annual report. The
legal minimum standard of valuation for all
certificates, except for disability benefits, shall
be the National Fraternal Congress Table of
Mortality as adopted by the National Fraternal
Congress, August 23, 1899, or at the option of the
society, any higher table; or, at its option, it
may use a table based upon the society's own
experience of at least twenty years and covering
not less than one hundred thousand lives with
interest assumption not more than four per cent
per annum. Each such valuation report shall
set forth clearly and fully the mortality and in-
terest basis and the method of valuation. Any
society providing for disability benefits shall
keep the net contributions for such benefits in a
fund separate and apart from all other benefits
and expense funds, and the valuation of all other
business of the society; provided, that where a
combined contribution table is used by a society
for both death and permanent total disability
benefits, the valuation shall be according to
tables of reliable experience and in such case a
separation of the funds shall not be required.
The valuation herein provided for shall not be
considered or regarded as a test of the financial
solvency of the society, but each society shall
be held to be legally solvent so long as the funds
in its possession are equal to or in excess of its
matured liabilities.
Report of such valuation and an explanation
of the facts concerning the conditions of the so-
ciety thereby disclosed shall be printed and
mailed to each beneficiary member of the society
not later than June 1st, of each year; or in lieu
thereof, such report of valuation and showing of
the society's condition as thereby disclosed may
be published in the society's official paper and
the issue containing the same mailed to each
beneficiary member of the society. The laws o^
such society shall provide that if the stated peri-
odical contributions of the members are insuffi-
cient to pay all matured death and disability
claims in full, and to provide fqlr the creation and
maintenance of the funds required by its laws,
additional, increased or extra rates of contribu-
tions shall be collected from the members to
meet such deficiency; and such laws may provide
that, upon the written application or consent oi
the member, his certificate may be charged with
its proportion of any deficiency disclosed by
valuation, with interest not exceeding five per
centum per annum. Acts 1914, pp. 99, 112.
§ 2877(29). Provisions to insure future se-
curity.— If the valuation of the certificates, as
hereinbefore provided, on December 31st 1917
shall show that the present value of future nel
contributions, together with the admitted assets
is less than the present value of the promisee
benefits, and accrued liabilities, such society shal
thereafter maintain said financial condition al
each succeeding triennial valuation in respect oi
the degree of deficiency, as shown in the valua
tion as of December 31st, 1917. If at any sue
ceeding triennial valuation such society does nol
show at least the same condition, the commis-
sioner shall direct that it thereafter comply witl
the requirements herein specified. If the nexi
succeeding triennial valuation after the receipij
of such notice shall show that the society has
failed to maintain the condition required herein
the commissioner may, in the absence of gooc
cause shown for such failure, institute proceed
ings for the dissolution of such society, in ac
cordance with the provisions of Section 2877(31'
or in the case of a foreign society, its license may
be cancelled in the manner provided in this Ac
Any such society shown by any triennia
valuation subsequent to December 31st, 1917
not to have maintained the condition herein re
quired, shall, within two years thereafter, mak<
such improvement as to show a percentage o
deficiency not greater than as of December 31st
1917, or thereafter as to all new members ad
mitted, be subject, so far as stated rates of con
tribution are concerned, to the provisions of Sec
tion 2877(15), applicable in the organization o
new societies; provided that the net mortuary oi
beneficiary contributions and funds of such nev
members shall be kept separate and apart fron
the other funds of the society.
If such required improvement is not shown b]
the succeeding triennial valuation, then the said
new members may be placed in a separate clas;
[ 724 ]
2877(30)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(31)
nd their certificates valued as an independent
Dciety in respect of contributions and funds.
ptS 1914, pp. 99, 114.
§ 2877(30). Valuation of certificates in lieu of
jquirements of the two preceding sections. — In
eu of the requirements of §§ 2877(28), 2877(29)
nd society accepting in its laws the provisions of
lis section may value its certificates on a basis,
erein designated "accumulation basis" by credit-
ig each member with the net amount contributed
>r each year and with interest at approximately
le net rate earned, and by charging him with
is share of the loisses for each year, herein
ssignated "cost of insurance,"- and carrying the
alance, if any, to his credit. The charge for
le cost of insurance may be according to the
;tual experience of the society applied to a
ible of mortality recognized by the law of this
tate, and shall take into consideration the
nount at risk during each year, which shall be
le amount payable at death, less the credit to
le member.
Except as specifically provided in its articles
• laws or contracts, no charge shall be carried
irward fropn the first valuation hereunder
gainst any member for any past share of losses
cceeding the contributions and credit. If, after
le first valuation, any member's share of losses
tr any year exceeds his credit, including the
mtribution for the year, the contribution shall
i increased to, cover his share of the losses.
Any such excess share of losses chargeable to
ly member may be paid out of a fund or con-
ibutions especially created or required for such
irposes.
Any member may transfer to any plan adopted
i the society with net rates on which tabular
serves are maintained, and oln such transfer
mil be entitled to make such application of his
edit as provided in the laws of the society,
ertificates issued, rerated or readjusted on a
isis providing for adequate rates with adequate
serves, to mature such certificates upon as-
imptions for mortality and interest recognized
I the law of this State shall be valued on such
isis, herein designated as the "Tabular Basis,"
•ovided, that if on the first valuation under this
:ction a deficiency in reserve shall be shown for
ly such certificate, the same shall be valued on
ie accumulation basis.
Whenever in any society having members
Don the tabular basis and upoin the accumula-
on basis, the total of all costs of insurance pro-
ded for any year shall be insufficient to meet
be mingled with the assets of other classes of
the society. A table showing the credits to in-
dividual members for each age and year of en-
try and showing opposite each credit the tabular
reserve required on the whole life or other plan
of insurance specified in the contract, according
to assumptions for mortality and interest recog-
nized by the law of this State and adopted by the
society, shall be filed by the society with each
annual report, and also be furnished to each
member before July 1st of each year.
In lieu of the aforesaid statement there may be
furnished to each member within the same time
a statement giving the credit for such member,
and giving the tabular reserve and level rate re-
quired for a transfer carrying out the plan of in-
surance specified in the contract. No table or
statement need be made or furnished where the
reserves are maintained on the tabular basis. For
this purpose, individual bookkeeping accounts
for each member shall not be required, and all
calculations may be made by actual methods.
Nothing herein contained shall prevent the
maintenance of such surplus over and above the
credits on the accumulation basis and the re-
serves on the tabular basis as the society may
provide by or pursuant to its laws, nor be con-
strued as giving to the individual member any
right or claim to any such reserve or credit other
than in manner as expressed in the contract and its
laws, nor as making any such reserve or credits
a liability in determining the legal solvency of
the society. Acts 1914, pp. 99, 115.
§ 2877(31). Examination of domestic societies.
— The Insurance Commissioner, or any person
he may appoint, shall have the power of visita-
tion and examination into the affairs of any do-
mestic society. He may employ assistants for
the purpose of such examination, and he, or any
person he may appoint, shall have free access to
all the books, papers and documents that relate
to the business of the society and may summon
and qualify as witness under oath and examine
its officers, agents and employees or other per-
sons in relation to the affairs, transactions and
conditions of the society. The expense of such
examination shall be paid by the society exam-
ined, upon statement furnished by the Insurance
Cofaimissioner, and the examination shall be
made at least once in three years.
Whenever, after examination, the Insurance
Commissioner is satisfied that any domestic so-
ciety has failed to comply with any provisions of
this Act, or is exceeding its powers, or is not
e actual death and disability losses for the year, carrying out its contracts in good faith, or is
ie deficiency shall be met for the year from the
mailable funds after setting aside all credits in
ie reserve or from increased contributions or
t an increase in the number of assessments ap-
ied to the society as a whole or to classes of
lembers. as may be specified in its laws. Sav-
gs from a lower amount of death losses may
; returned in like manner as may be specified
. its laws.
If the laws of the society so provide, the as-
:ts representing the reserve of any separate
ass of members may be carried separately for
ich class so set apart, as if in an independent
)ciety, and the required reserve accumulation
such class so set apart shall not thereafter
transacting business fraudulently; or whenever
any domestic society, after the existence of one
year or more, shall have a membership of less
than 400 (or shall determine to discontinue busi-
ness), the Insurance Commissioner may present
the facts relating thereto to the attorney gen-
eral, who shall, if he deem the circumstances
warrant, commence an action in quo warranto in
a court of competent jurisdiction, and such
court shall thereupon notify the officers of such
society of a hearing, and if it shall then appear
that such society shall be closed, said society
shall be enjoined from carrying on any further
business, and some person shall be appointed
receiver of such society, and shall proceed at
[725]
§ 2877(32)
REGULATIONS OF FRATERNAL BENEFIT SOCIETIES
§ 2877(36}
once to take possession of the books, papers,
moneys and other assets of the society and shall
forthwith, under the direction of the court, pro-
ceed to, close the affairs of the society and dis-
tribute its funds to those entitled thereto.
No such proceedings shall be commenced by
the attorney general against any such society
until after notice has been duly served on the
chief executive officers of the society and a rea-
sonable opportunity given to it, on a date to be
named in said notice, to show cause why such
proceedings should not be commenced. Acts
1914, pp. 99, 118.
§ 2877(32). Application for receiver, etc. — No
application for injunction against of proceedings
for the dissolution of or the appointment of a
receiver for any such domestic society or branch
thereof shall be entertained by any court in this
State unless the same is made by the attorney
general. Acts 1914, pp. 99, 119.
The provisions of this section do not apply to the order
of Odd Fellows because such order is expressly excepted by
provisions of § 2877 (36). Daniel v. Jones, 146 Ga. 583, 91
S. E. 665.
§ 2877(33). Examination of foreign societies.
— The Insurance Commissioner, or any person
whom he may appoint, may examine any foreign
society transacting or applying for admission to
transact business in this State. The said com-
missioner may employ assistants, and he, or any
person he may appoint, shall have free access to
all the books, papers and documents that relate
to the business of the society, and may summon
and qualify as witness under oath and examine
its officers, agents and employees and other per-
sons in relation to the affairs, transactions and
conditions of the society. He may, in his dis-
cretion, accept in lieu of such examination the
examination of the Insurance Department of
the State, territory, district, province or country
where such society is organized. The actual ex-
penses of examiners making any such examina-
tion shall be paid by the society upon the state-
ment furnished by the Insurance Commissioner.
If any such sojciety or its officers refuse to
submit to such examination or to comply with
the provisions of the section relative thereto, the
authority of such society to write new business
in this State shall be suspended or license re-
fused until satisfactory evidence is furnished the
commissioner relating to the condition and af-
fairs of the society, and during such suspension
the society shall not write new business in this
State. Acts 1914, pp. 99, 119.
§ 2877(34). No adverse publications. — Pending,
during or after an examination or investigations
of any such society, either domestic or foreign,
the Insurance Commissioner shall make public
no financial statement, report or finding, nor
shall he permit to become public any financial
statement, report or finding affecting the • status,
standing or rights of any such society, until a
copy thereof shall have been served upon such
society, at its home office, nor until such society
shall have been afforded a reasonable oppor-
tunity to answer any such financial statement,
report or finding and to make such showing in
connection therewith as it may desire. Acts
1914, pp. 99, 119.
§ 2877(35). Revocation of license.— When the
Insurance Commissioftier, on investigation, i<
satisfied that any foreign society transacting
business under this Act has exceeded its powers
or has failed to comply with any provisions oi
this Act, or is conducting' business fraudulently
or is not carrying qut its contracts in gooc
faith, he shall notify the society of his findings
and state in writing the grounds of his dissatis-
faction, and after reasonable notice require saic
society, on a date named, to show cause why it;
license should not be revoked. If on the date1
named in said notice such objections have no
been removed to, the satisfaction of the said
commissioner, or the society does not preseiv
gqod and sufficient reasons why its authority
to transact business in this State should not a
that time be revoked, he may revoke the author]
ity of the society to continue business in thiif
State. All decisions and findings of the commis
sioner made under the provisions of this section
may be reviewed by proper proceedings in anjl
court of competent jurisdiction, as provided ii
Section 2877(21). Acts 1914, pp. 99, 120.
§ 2877(36). Exemption of certain societies. —
Nothing contained in this Act shall be con
strued to effect or apply to grand or subordinate
lodges of Masons, Odd Fellows or Knights o:|
Pythias (exclusive of the insurance departmen
of the Supreme Lodge, Knights of Pythias), and
the Junior Order of United American Mechanic;
(exclusive of the beneficiary degree or insurance
branch of the National Council Junior Ordei
United American Mechanics), or societies whicl
limit their membership to any one hazardou;
occupation, nor to similar societies which dc
not issue insurance certificates, nor to an as-
sociation of local lodges of a society now doing
business in this State which provides deatli
benefits not exceeding five hundred dollars tc
any one person or disability benefits not exceed
ing three hundred dollars, in any one year tc
any one person, or both, nor to any contracts os
reinsurance business on such plan in this State
nor to domestic societies which limit their memi
bership to the employees of a particular city oj
town, designated firm, business house or corpo-
ration, nor to domestic lodges, orders or associ
ations of a purely religious, charitable anc
benevolent description, which do not provide foil
a death benefit of more than one hundred dol-;
lars, or for disability ibenefits of more than ond
hundred and fifty dollars to any one person ir
any one year. The Insurance Commissioneij
may require from any society such informatiorj
as will enable him to determine whether such
society is exempt from the provisions of this
Act.
Any fraternal benefit society heretofore organ-
ized and incorporated and operating within the:
definition set forth in Sections 2877(4), 2877(5^
and 2877(6), providing for benefits in case o:
death or disability resulting solely from acci-
dents, but which does not obligate itself to paj
death or sick benefits, may be licensed under the
provisions of this Act and shall have all the
privileges and shall be subject to all the provi-
sions and regulations of this Act, except tha:
the provisions of this Act requiring medical ex-
aminations, valuations, of benefit certificates
726 ]
§ 2877(37)
BUILDING AND LOAN ASSOCIATIONS
§ 2878
ind that the certificates shall specify the amount
}f benefits, shall not apply to such society. Acts
L914, pp. 99, 120.
As to the manner of incorporating orders herein exempted,
see editor's note to § 2824.
Jurisdiction of Superior Court. — The superior court was
lot deprived of jurisdiction by this act, which provides that
10 application for injunction against, or proceedings for the
lissolution of, or the appointment of a receiver for any such
iomestic society or branch thereof shall be entertained by
iny court in this State unless the same is made by the at-
:orney-general; inasmuch as this section, expressly excepts
rom its operation grand or subordinate lodges of Odd Fel-
ows. Daniel v. Jones, 146 Ga. 583, 91 S. E. 665.
The superior court has jurisdiction of an equitable peti-
:ion filed by a member and certificate-holder of a fraternal
>enefit association chartered by the superior court, in be-
lalf of himself and of all others similarly situated, against
iuch association, for the purpose of appointing a receiver
:o conserve the property of the association and to keep it
i going concern until other officers can be legally elected.
Daniel v. Jones, 146 Ga. 583, 91 S. E. 665.
§ 2877(37). Taxation, exemption from. — Every
raternal benefit society organized or licensed
inder this Act is hereby declared to be a chanta-
ge and benevolent institution, and all of its
unds shall be exempt from all and every State,
-.ounty, district, municipal and school tax, other
han taxes on real estate and office equipment.
\cts 1914, pp. 99, 121.
§ 2877(38). To what societies applicable. — The
>rovisions of this bill shall not apply to fraternal
>enefit societies whose membership does not ex-
:eed five thousand members, and all societies
writing insurance for employees of the Federal
government and public utilities companies shall
:ome within the provisions of this Act. Acts
.914, pp. 99, 122, 12b.
See note to § 2877 (26).
Constitutionality. — This section does not violate the con-
stitution, of §§ 6437, 6512, 6445, 6391. NeSmith v. NeSmith,
158 Ga. 175, 122 S. E. 682.
This section is not a special law and in violation of § 5272.
NeSmith v. NeSmith, 158 Ga. 175, 122 S. E.. 692.
What Societies May Be Garnished. — Under this section, the
provision exempting fraternal benefit societies from gar-
lishment does not apply to such societies whose member-
ship does not exceed five thousand members. NeSmith v.
NTeSmith, 158 Ga. 175, 122 S. E. 682. See § 2877 (38).
Same — Burden of Proof. — The burden is on the society
when garnished, and the answer is traversed. Pupke v.
Vfeador, 72 Ga. 230; Barkley v. May, 3 Ga. App. 101,
105, 59 S. E. 440, to show that the membership exceeds five
:housand, and that it has complied with the other require-
ments of the statute, in order to free itself from garnish-
ment. This burden was not carried by such society in the
present case; and for this reason the court erred in direct-
ing a verdict in its favor. NeSmith v. NeSmith, 158 Ga.
175, 122 S. E. 682. See § 2877 (38).
§ 2877(39). Subject to rules and regulations.^-
A.11 such societies and organizations as are men-
tioned in this Act shall be subject to such rules
md regulations as may be prescribed by the In-
surance Commissioner of the State. Acts 1914,
|p. 99, 123.
As to the penalty for the violation of this section, and the
thirty-five sections next preceding, see P. C, § 630 (1).
§ 2877(40). Certificates to persons under 16
years of age. — Any fraternal benefit society may
issue to persons under sixteen years of age bene-
fit certificates, provided such persons are related
to a member of said society as son, daughter,
ward, stepson, stepdaughter or shall be depend-
ent upon a member; provided, however, the
amount of death benefit payable under the terms
of such benefit certificate may be made to in-
crease as the years of the assured increase, and
provided, further, that no benefit certificate shall
be issued wherein the death benefit payable
shall exceed the sums specified in the following
table, the ages therein specified being the ages
at time of death:
and
and
years.
years.
years.
years.
years,
years,
years,
years,
years.
years
years.
years,
years
years ,
• •$
35.00
39.00
45.00
50.00
60.00
150.00
175.00
200.00
250.00
350.00
380.00
4G0.00
600.00
1000.00
Between the ages of 1 and 2
Between the ages of 2 and 3
Between the ages of 3 and
Between the ages of 4 and
Between the ages of 5 and
Between the ages of 6
Between the ages of 7
Between the ages of 8 and 9
Between the ages of 9 and 10
Between the ages of 10 and 11
Between the ages of 11 and 12
Between the ages of 12 and 13
Between the ages of 13 and 14
Between the ages of 14 and 16
Acts 1917, p. 102.
§ 2877(41) Premiums, how based. — The peri-
odical dues or premiums charged for the bene-
fits in such certificates of membership must be
based upon some recognized mortality table the
premium in which is not less than the National
Fraternal Congress Tables of Mortality and an
interest assumption of four per centum per an-
num, or upon a table of the actual experience of
at least twenty years of any similar society com-
piled from a membership of not less than one
hundred thousand members. Acts 1917, p. 102.
§ 2877(42). Benefit certificates in classes. —
Any fraternal benefit society now operating in
this State or that may hereafter seek admission
to do business in this State may issue benefit
certificates to its members in accordance with
its laws providing for the establishments of its
membership into divisions and classes of the
same age of entry, and may provide in its laws
and certificates for the payments of benefits from
special funds created for such purposes to the
oldest membership of a division and class upon
the death of a member in the same division and
class. Acts 1917, p. 102.
§ 2877(43). Premiums, how based. — The peri-
odical dues or premium charges for such bene-
fits shall be based upon the National Fraternal
Congress Tables of Mortality and a four per
centum per annum interest assumption, or upon
some higher standard. The method of determin-
ing the dues or premium charges shall be the
joint life plan at equal ages, and shall be so com-
puted that each member's dues or premium
charges shall be based upon the exact amount
of death benefit which the membership certificate
provides shall be payable to the legal benefici-
aries named in such certificate in event of the
death of the member and the other benefits pro-
vided for in the certificates of membership. Acts
1917, p. 102.
SECTION 8.
Building and Loan Associations and Their Regu-
lation.
§ 2878. (§ 2388.) Building and loan associations
may loan to persons not members. — All building
and loan associations, and other like associations
[ 727
§ 2878
BUILDING AND LOAN ASSOCIATIONS
§ 2882
doing business in this State and the term other
like associations shall include a corporation or-
ganized to do a general savings and loan busi-
ness, and among other things lending its funds
to members of the industrial and working
classes, or others, and secured in whole or in
part by personal endorsements and its own fully
paid or installment stock, or its own fully paid
or installment certificates of indebtedness, or
other personal property, are authorized to lend
money to persons not members thereof, nor
shareholders therein at eight per cent or less,
and to aggregate the principal and interest at
the date of the loan for the entire period of the
loan, and to divide the sum of the principal and
the interest for the entire period of the loan in-
to monthly or other installments, and to take
security by mortgage with waiver of exemption,
or title, or both, upon and to real estate situated
in the county in which said building and loan
association may be located; and such building
and loan association shall be construed to be
located in any county wherein it has an office,
agent or resident correspondent; provided, how-
ever, and nevertheless, the associations referred
to and as defined herein shall not be compelled
to lend their funds exclusively in the manner
hereinbefore specified, but in addition thereto
also have authority to make loans to members
of the industrial and working classes and to all
other persons, due at fixed intervals not exceed-
ing twelve months, and secured in whole or in
part by personal endorsements and by its own
fully paid stock, or stock payable on the install-
ment plan, certificates of indebtedness, fully paid
or payable on the installment plan, or both en-
dorsements and such securities, or other personal
security and choses in action, and on such loans
so made and secured as aforesaid, it shall be
lawful to deduct interest in advance, but not to
exceed eight per cent discount, and the install-
ment payments, if any, made on such hypothe-
cated stock or certificates of indebtedness dur-
ing the time the loan is of force may or may not
bear interest, at the option of the association
and the taking of said installment payments on
said hypothecated stock, certificates of indebted-
ness, choses in action, or other evidences of in-
debtedness shall not be deemed usurious. Acts
1888, p. 47, 1910, pp. 55, 56; 1913, p. 54.
Cross References.— See 3 Cum. Dig. 102, 2 Enc. Dig. 641.
As to form and execution of a mortgage, see § 3257. As
to legal rate of interest, see § 3436.
Editor's Note. — This section was amended and construed
by the acts of 1910, p. 55, which provided that the situs of
a building and loan association shall be construed to be lo-
cated in any county wherein it has an office, agent or resi-
dent correspondent. This amendment was omitted
(probably inadvertently) in a restatement of the section
when it was again amended by the Acts 1913,, p. 54. This
latter amendment defined the term "other like associa-
tions," and also authorized loans on choses in action for a
period not exceeding twelve months, granting the right to
deduct interest in advance, this last amendment was ac-
complished by adding the proviso at the end of the section.
See Atlanta Loan, etc., Co. v. Norton, 24 Ga. App. 771,
772, 102 S. E. 539.
Amendment Is Constitutional. — The amendatory act of
1913, is a general law, and does not fail of effect because
the company's charter antedated it and was never amended
for the purpose of adopting the privileges it offers. At-
lanta Loan, etc., Co., v. Norton, 149 Ga. 805, 102 S. E. 536.
The act of 1913 amending this section, is a general law,
and does not fail of effect because the company's charter
antedated it and was never amended for the purpose of
adopting the privileges it offers. Atlanta Loan, etc., Co.
v. Norton, 149 .Ga. 805, 102 S. E. 536; Atlanta Loan, etc.,
Co. v. Norton, 24 Ga. App. 772, 102 S. E. 539.
"Like Character to a Loan Association," Defined. — In
an order for an incorporated company to come within the
classification of like character to a building and loan as-
sociation under this section so that it may conduct busi- j
ness on the plan of a building and loan association and
escape the penalty of taking an excess of legal interest, its
charter must indicate that its method of business with re-
lation to mutual participation in profits and losses in loans!
made by it has some distinctive feature of the plan of a
building and loan association. Mcintosh v. Thomasville
Real Estate, etc., Co., 138 Ga. 128, 74 S. E. 1088.
Adoption of Section by Stockholders Immaterial. — An as-
sociation incorporated as a building and loan association,!
can not voluntarily convert itself into such a corporation,}
by the adoption of this section by its stockholders. Mc- 1
Intosh v. Thomasville Real Estate, etc., Co., 138 Ga. 128,1
134, 74 S. E. 1088.
Effect of Verdict for Legal Interest. — Where the court I
directed a verdict for only the principal and legal interest,
it is not necessary to determine whether the plaintiff is
entitled to the privileges granted by this section. West v.
Atlanta Loan, etc., Co., 22 Ga. App. 184, 95 S. E. 721.
Notes Held Not to Be Usurious. — As the answer, ad-
mitted that the plaintiff was a building and loan associa-
tion and was authorized as such to do business in this
state, and as that the notes sued on did not exceed the
aggregate of the principal sum and 8 per cent, interest there-
on for the full period of the loan, divided into monthly in-
stallments as represented by the notes sued on, under this
section, the transaction was not usurious. Moore v. Calvert]
Mortgage, etc., Co., 13 Ga. App. 54, 78 S. E- 1097.
Applied in Paulk v. Calvert Mortgage Co., 160 Ga. 7, 127!
S. E. 134; Ficken v. Bank, 25 Ga. App. 644, 104 S. E. 14.
Cited in Atlanta National Building, etc., Asso. v. Stewart,
109 Ga. 80, 101, 35 S. E. 73.
§ 2879. (§ 2389.) Construed valid.— All con-
tracts made and securities taken in accordance
with this Article shall be valid for the full amount
of principal and interest charged, and shall not
be held usurious. Acts 1888, p. 47.
§ 2880. (§ 2390.) Not apply unless stockholders
adopt. — Nothing in this Article shall be held to
apply to any building and loan association here-
tofore incorporated, unless said association shall,
by a vote of a majority of its stockholders,
adopt the provisions of this Article as an amend-
ment to its charter. Acts 1888, p. 47.
As to prohibition against interest over eight per cent, see
§ 3436.
§ 2881. (§ 2391.) Provisions to apply to all
saving institutions.— All the provisions of this
Article are to apply to all saving institutions
which pay interest to depositors, and whose de-
posits are not subject to check. Acts 1889, p.
180.
See 2 Cum. Dig. 664, 2 Enc. Dig. 308.
Section Is Constitutional. — This section is a general law
operative throughout the State upon all persons coming
within the terms of the act, and is constitutional. Union
Savings Bank, etc., Co. v. Dottenheim, 107 Ga. 606, 34 S.
E- 217. But see contra, dissenting opinion in Dottenheim v.
Union Savings Bank, etc., Co., 114 Ga. 788, 40 S. E. 825.
Time of Incorporation Immaterial. — This section applies
regardless of the time of incorporation. Dottenheim v.
Union Savings Bank, etc., Co., 114 Ga. 788, 40 S. E. 825.
Question for Jury. — Whether a particular banking in-
stitution has shown itself to be a savings institution, with-
in the meaning of this section, may be a question of fact
for the jury under the evidence. Dottenheim v. Union
Savings Bank, etc., Co., 114 Ga. 788, 40 S. E. 825.
Applied in Ficken v. Bank, 25 Ga. App. 644, 104 S. E. 14.
Cited in Atlanta Savings Bank v. Spencer, 107 Ga. 629,
33 S. E. 878.
§ 2882. (§ 2392.) Foreclosure by building and
loan associations, how made. — No judgment of
foreclosure shall be given in favor of any build-
ing and loan association, upon any mortgage
executed to them, unless they shall have served
upon the mortgagor, at least thirty days before
[ 728 ]
§ 2883
INTERSTATE BUILDING AND LOAN ASSOCIATIONS
§ 2886
:he court at which such judgment shall be taken,
i complete' statement of the amount for which
:hey claim judgment, fully setting out the amount
;laimed for principal, interest, and fines or
penalties, and also setting out the credit allowed
:or stock transferred to them as collateral, and
iny other credit to which the mortgagor may be
entitled. Acts 1876, p. 103.
See 2 Enc. Dig. 640. As to proceedings to foreclose a
mortgage, see § 3276.
Effect of Compliance with Requirement of Notice. —
Where the declaration conveys to the defendant all the
nformation which this section requires shall be given in
;he notice therein provided for, the purpose of the law is
iccomplished and further notice may be dispensed with.
Hawkins v. Americus National Building, etc., Asso., 96
5a.' 206, 22 S. E. 711.
Demurrer to Plea at First Term. — A plea in abatement
)y the mortgagor filed at the first term, alleging that the
lotice required by this section was not served upon her,
vas demurrable. Graham v. Atlanta, etc., Assoc, 110 Ga.
!87, 34 S. E. 847.
SECTION 9.
Interstate Building and Loan Associations.
§ 2883. (§ 2393.) Deposit by such associations.
—All building and loan associations incorporated
mder the laws of this State which do business
vithin and without the State, and all such as-
•ociations organized under the laws of other
states and doing business in this State, and which
ire required by law to make deposit of securities,
ire hereby required to deposit and keep on de-
)osit with some one of the legally authorized
State depositories of this State, or with a legally
ncorporated and duly authorized trust com-
>any, to be selected by the board of directors of
iuch association, in trust for all its members and
:reditors, seventy-five per cent, of the amount of
dl mortgages or other securities received by it
n the usual course of its business. Such securi-
:ies to be held and kept by such depository as
low required by law. Acts 1897, p. 62.
Cross References. — See 3 Cum. Dig. 104. As to power
>f trust companies to receive deposits of securities, see §
2817, par. 4. As to duty of corporations to file annual re-
;urns, see § 2209.
Section Does Not Charge Any Particular Securities. —
Fhe provisions of this section do not operate to charge any
particular mortgages or securities, not deposited, with a
trust as against persons taking them bona fide and for
/alue, nor are persons dealing with such an association
Dona fide and for value, put on inquiry, by reason of such
law, to ascertain whether the association has complied
with it. Steed v. American National Bank, 136 Ga. 693, 71
3. E- 1116.
§ 2884. Duties of treasurer. — The treasurer of
:he State shall not be permitted to accept and
lold the deposit of securities as herein provided
:or, nor shall he be required to make any ex-
imination of the affairs of said associations to
iscertain whether said associations have de-
Dosited seventy-five per cent, of all their securi-
:ies and otherwise complied with the require-
ments of law, but the certificate of the particular
depository or trust company that such deposit
las been made by the particular association
shall be sufficient evidence of that fact to the
xeasurer. The certificate issued by such deposi-
tory or trust company shall state on its face that
the securities so deposited have not been exam-
ined by any State authority in order to ascertain
whether or not seventy-five per cent, of the assets
[
of such association have been deposited. Acts
1897, p. 62.
§ 2885. (§ 2393.) Duties of association and
depository. — When such mortgages (or other
securities) are deposited with the said trust com-
pany or State depository, such company or State
depository shall certify to the treasurer of this
State that the said securities have been and are
deposited with it, and the same shall not be sur-
rendered to or returned to the said association
without the sanction of the treasurer of this
State: Provided, that every such corporation
heretofore or hereafter organized, whose mort-
gages or other securities so deposited do not
amount to twenty-five thousand dollars, shall
have fifteen months after organization to deposit
with said State depository or trust company such
additional securities as with the securities so de-
posited shall equal in value the sum of twenty-
five thousand dollars; and every such corpora-
tion, within fifteen months after commencing to
do business, shall deposit with the said State de-
pository or trust company, in trust as aforesaid,
securities of the value of twenty-five thousand
dollars. The securities mentioned in this proviso
shall -consist of bonds or treasury notes of the
United States, National or State bank-notes, or
bonds of this State or any other State of the
United States, or of any solvent city, town, or
county of this State having legal authority to is-
sue the same, or first mortgages on real estate,
ot other legal securities aggregating in value
twenty-five thousand dollars; and such securities
may be withdrawn, from time to time, when
mortgage securities of corresponding value shall
be deposited in lieu and place, thereof, or when
other securities of equal character and value are
substituted therefor. Whenever any association
incorporated under the laws of this State is re-
quired by the laws of any other State, Territory,
or nation to make a deposit of securities in such
State, Territory, or nation as a condition of
doing business therein, such association may de-
posit a portion of its securities with the properly
authorized officer of such other State, Territory,
or nation: Provided, however, that the amount
of securities kept on deposit in this State shall
at all times equal seventy-five per cent, of the
amount of the loans made and then outstanding
in this State: And provided further, that the
securities so deposited in this State shall not
thereby be reduced below the sum of twenty-five
thousand dollars. Acts 1890-1, p. 176; 1896, p.
52; 1897, p. 62.
§ 2886. (§ 2394.) Interest, dues, etc., on de-
posits.— All interest and dividends and premiums
which may accrue on securities held by said State
depository or by such trust company, and all
dues or monthly payments which may become
payable on stock pledged as security for loans,
the mortgages for which are so deposited, may
be collected and retained by the association de-
positing such securities. Any mortgage or se-
curities which shall have been fully paid to said
association, or which the borrower desires to pay
off and discharge, and any mortgage or securi-
ties upon which default has been made and of
which said association shall desire possession for
the purpose of collection for foreclosure, and
all securities needed by it for deposit in any other
29 ]
§ 2887
INTERSTATE BUILDING AND LOAN ASSOCIATIONS
§ 2890
State, Territory, or nation (according to the
provisions of the preceding section), shall be
surrendered by said State depository or trust
company to the association depositing same4
upon filing with said depository or trust com-
pany an affidavit of the president and secretary
thereof, stating the reasons for desiring to with-
draw such securities, and such securities shall
not be used for any purpose other than that
stated in the affidavit: Provided, that when said
association is dissolved according to the provi-
sions of its charter, and ceases to do business, all
securities deposited by it shall be returned to it
upon furnishing said State depository or trust
company with satisfactory evidence of the fact
of its dissolution. Bonds or stocks deposited
with said State depository or trust company, as
aforesaid, shall, if deemed advisable by the as-
sociation, be surrendered to the association de-
positing same, for the purpose of being con-
verted into cash and loaned on real estate. Acts
1890-1, p. 176; 1897, p. 62.
§ 2887. (§ 2395.) Deposits by associations or-
ganized in other states, and other requisites for
doing business. — No building and loan associa-
tion organized under the laws of any other State,
Territory, or foreign government shall do busi-
ness in this State unless said association shall
deposit, and continually thereafter keep de-
posited, in trust for all of its members and
creditors, with some responsible trust company,
or with the State depository of this or some other
State of the United States, seventy-five per cent,
of all its securities; all of the personal obligations
of its members taken in the ordinary course of
business of such association and secured by first
mortgages on real estate; seventy-five per cent.
of all dividends and interest which may accrue on
securities held in trust, as aforesaid, by the trust
company or the State depository, as provided for
herein. All dues or monthly payments which
ma}^ become payable on stock pledged as security
for loans, the mortgages for which are on de-
posit in accordance with the provisions of this
Article, may be collected and retained by the as-
sociation depositing such securities or mortgages.
Any securities on deposit, of said building and
loan association in this State, if the amount of
said securities so deposited is less than all of its
securities, may, from time to time, be drawn, if
others of equal value are substituted therefor.
Every building and loan association, organized
under the laws of any State, Territory, or for-
eign government, shall, before commencing to
do business in this State —
1. File with the secretary of this State, a duly
authenticated copy of its charter or articles of
incorporation.
2. File with the secretary of this State the
certificate of the proper State officer of another
State, or the president or secretary of some re-
sponsible trust company, certifying that it has on
deposit seventy-five per cent, of all the securities,
not less than twenty-five thousand dollars, of the
kind and amount required by the laws of such
other State, taken in the regular course of busi-
ness, in trust for all the members and creditors
of such building and loan association.
3. File with the secretary of this State a duly
authenticated copy of a resolution adopted by
the board of directors of such association, stipu-
lating and agreeing that if any legal process af-
fecting such association be served on said secre-
tary of State, and a copy thereof be mailed,
postage prepaid by the party procuring the issu-
ing of the same, or his attorney, to said associa-
tion, addressed to its home office, then such
service and mailing of such process shall have
the same effect as personal service on said as-
sociation in this State.
4. Pay the secretary of this State fifty dollars
as fees for filing the papers mentioned in this
section. Acts 1890-1, p. 176.
As to how building and loan associations are licensed,
see § 2898.
Cited in Paulk v. Calvert Mortgage Co., 160 Ga. 7, 127
S. E. 134.
§ 2888. (§ 2396.) Process against foreign com-
panies.— When process against or affecting any
foreign building and loan association is served
on the secretary of State, the same shall be by
duplicate copies, one of which shall be filed in
the office of said secretary of State, and the other
by him immediately mailed, postage prepaid, to
the home office of said association. The word
"process" in this Article shall include any writ,
summons, complaint, declaration, or order,,
whereby an action, suit, or proceeding shall be
commenced, or which shall be issued in or upon
any action, suit, or proceeding at law or in equity
authorized by law in this State. Thirty days
time shall be allowed to answer in any action,
suit or proceeding. Acts 1890-1, p. 176.
As to service on corporations, generally, see § 2258.
§ 2889. (§ 2397.) Reciprocity.— When, by the
laws of any other State, Territory, or nation, any
taxes, fines, penalties, license fees, deposits of
money, or securities, or other obligations or pro-
hibitions are imposed on building and loan as-
sociations of this State, doing business in such
other State, Territory, or nation, or upon their
agents therein, so long as such laws continue of
force, the same obligations or prohibitions of
whatever kind shall be imposed upon all build-
ing and loan associations of such other State,
Territory, or nation doing business in this State,
and upon their agents here.
As to comity to foreign insurance companies, see § 2449.
§ 2890. (§ 2398.) What "building and loan as-
sociation" inclfudesi. — The name "building and
loan association," as used in this Article, shall
include all corporations, societies, or organiza-
tions or associations doing a savings and loan
or investment business on the building society
plan, viz., loaning its funds to its members,
whether issuing certificates of stock which ma-
ture at a time fixed in advance or not, except
those which restrict their business to the county
of their domicile and not more than two other
adjacent counties. Acts 1890-1, p. 176; 1896, p.
52.
As to power of association to loan to non-members, see'
§ 2878.
Definition of Section Not Exclusive. — This section does
not include every form of an organization that may properly
be denominated a building and loan association; but is
sufficient to give a correct idea of what particular class is
meant. Cook v. Equitable Building, etc., Asso., 104 Ga.
814, 822, 30 S. E. 911.
Mere Grant of Extra Powers Immaterial. — It has been
[730]
2891
INTERSTATE BUILDING AND LOAN ASSOCIATIONS
§ 2898
;ld under this section that the fact that the charter in-
>rporating a company gives it power to enter into other
isiness not strictly within the usual scheme of such as-
iciation, does not destroy the building and loan character
the association, where there has been no attempt on its
irt to exercise any of such powers. Cook v. Equitable
uilding Asso., 104 Ga. 814, 30 S. E- 911.
Charter to Carry on General Loan Business. — A corpora -
an whose charter authorizes it to lend "on real or per-
nal property such sums of money as shall be from time
time paid in by stockholders in such manner as shall be
escribed by the by laws of said association, * * * and
so for the purpose of transacting any and all business
;ual and lawful for the carrying on of the general busi-
es of a building and loan association as the same is now
may hereafter be conducted," is a building and loan as-
ciation within the meaning of this section. Paulk v.
ilvert Mortgage Co., 160 Ga. 7, 127 S. E- 134.
Cited in Atlanta National Building, etc., Asso. v. Stewart,
3 Ga. 80, 103, 35 S. E. 78.
§ 2891. (§ 2399.) Solicitation of stock subscrip-
ts, etc., in foreign companies. — No officer, di-
ctor, or agent of any foreign building and loan
sociation shall, in this State, solicit subscrip-
ts to the stock of such association, or sell, or
sue, or knowingly cause to be sold or issued,
a resident of this State, any stock of an as-
ciation while said association has not on de-
isit, as required by section 2887, seventy-five
r cent, of all its securities, or before said as-
ciation has complied with all the provisions
this Article. Any violation thereof shall be
emed a misdemeanor.
\s to similar provision, see § 624, P. C.
§ 2892. (§ 2400.) Sale of stock of home com-
ny to non-residents. — No officer, director, or
ent of any building and loan association incor-
irated under the laws of this State shall sell,
;ue, or knowingly cause to be sold or issued,
any person not a resident of the State in
lich the home office of said company is located,
y stock of said association while said associa-
m does not have on deposit, as required by
ction 2885, seventy-five per cent, of all the se-
rities of said association taken in the regular
urse of business. Any violation hereof shall
deemed a misdemeanor. Acts 1890-1, p. 176.
Vs to similar provision, see § 625, P. C.
§ 2893. (§ 2401.) Fines, etc., not usurious. — No
es, interest, or premiums paid on loans in any
ilding and loan association shall be deemed
urious, and the same may be collected as debts
like amount are now collected by law in this
ate, and according to the terms and stipulations
the agreement between the association and the
■rrower.
:ross References.— See 3 Cum. Dig. 102, 2 Enc. Dig. 634,
As to charges of interest over eight per. cent., see §
6. As to loans by associations to non-members, see §
8.
section Is Constitutional. — The provisions of this sec-
n is simply declaratory of the preexisting law and hence
constitutional. Cook v. Equitable Building, etc., Asso.,
Ga. 814, 30 S. E. 911.
*rovince of Jury. — Under this section it has been held
it whether the particular transaction under investiga-
n is within the general scope of a building and loan as-
:iation plan, or is a plan devised by schemers to make
mey for themselves under the form of building and loan
itracts with the view of evading the usury laws of the
ite, is a question of fact for the jury. Cook v. Equit-
e Building, etc., Asso., 104 Ga. 814, 30 S. E. 911; Union
vings Bank, etc., Co. v. Dottenheim, 107 Ga. 606, 34 S.
217.
§ 2894. (§ 2402.) Annual statements.— Every
ilding and loan association governed by this
•tide shall file with the treasurer of this State
[ 73
annually, within sixty days after the expiration
of its fiscal year, a statement of its assets and
liabilities at the end of said fiscal year; such re-
port shall be filed under oath by the president
and secretary, or by three of the directors of the
association. Such association shall pay to the
State treasurer ten dollars on filing such report.
If any such association shall willfully fail to fur-
nish to the State treasurer any report required
by this Article at the time so required, it shall,
in the discretion of a court of competent juris-
diction, forfeit the sum of twenty-five dollars
per day for every day such report shall be de-
layed or withheld, and the State treasurer may
maintain an action in his name of office to re-
cover such penalty, and the same shall be paid
into the treasury of the State.
§ 2895. (§ 2403.) Annual fees. — Every associa-
tion depositing securities with a State depository
or trust company, as provided for by law, shall
annually pay to said depository or trust com-
pany a fee of fifty dollars. Acts 1897, p. 62.
§ 2896. (§ 2404.) Bonds of officers.— All officers
of any building and loan association governed by
this Article and doing business in this State, who
handle or have the custody of any of the funds
of such association, shall give sufficient bonds
for the faithful performance of their duties as
the board of directors may require, and no such
officer shall be deemed qualified to enter upon
the duties of his office until his bond is approved
by the board of directors with whom such bond
shall be filed. The penalty for a failure of any
association to file and maintain the bonds or
policy as required by the provisions of this sec-
tion, shall be a fine of one hundred dollars for
each day such association transacts business
after such bond has become due under the pro-
visions of this Article. Said bond or policy
shall be held in trust for the benefit and protec-
tion of the members of such association, and
shall be enforceable by any member, whenever
cause of action shall accrue thereon.
§ 2897. (§ 2405.) Not to apply to associations
ceasing to do interstate business. — The provisions
of this Article shall not apply to building and
loan associations, or other associations of like
character, which cease to do interstate business;
and upon satisfactory evidence being produced to
the State treasurer that such building and loan
associations have ceased to do business outside of
this State, he shall not demand the special tax on
said associations so long as they cease to do busi-
ness out of this State; but this sh?U not be con-
strued as relieving said association from paying the
same license or tax required of other associations
doing business in this State. Acts 1893, p. 90.
As to tax returns of building and loan associations, see
§ 985.
§ 2898. (§ 2406.) Building and loan associations,
how licensed. — The fees required by this Article to
be paid by building and loan associations, when
paid, shall operate as a license to such associations
to carry on business in the State of Georgia, and
shall be in lieu of any and all licenses or fees,
whether State, county, or municipal, to be exacted
of such associations for doing business in this
State, except a business license by the town or city
1]
2899
INVESTMENT COMPANIES
§ 2901
in which the principal office of any such association
is located: Provided, that this shall not be con-
strued to exempt such associations from liability
for such ad valorem tax on their capital stock as
may now be required by law to be paid to the
State and county in the county of their domicle,
or on any real and personal property other than
their capital stock held and owned by such as-
sociations. Acts 1894, p. 79.
As to tax returns of building and loan associations, see
§ 985. As to duties of foreign associations doing business
in this state, see § 2887.
SECTION 10.
Investment Companies.
§ 2899. Investment companies, redemption fund.
— Every corporation of the character generally
known as investment companies, organized under
the laws of this State for the purpose of conducting
a business of placing or selling certificates, bonds,
debentures, certificates of interest, or investment
securities of any kind on the partial payment, in-
stallment, or any other plan of payment, and pro-
viding for the redemption and retiring of the same,
or any part thereof, and every company, corpora-
tion, partnership, or association conducting such
business in this State shall provide a redemption
and reserve fund of not less than seventy-five per
cent, of the amount collected in premiums, for the
benefit and protection of its investors, and so much
of said fund as shall not be immediately distributed
to investors shall be invested as hereinafter pro-
vided, and every such company, corporation, part-
nership, association, or individual now doing such
a business in this State, within ninety days after
August 13th, 1904, shall deposit with one of the
State depositories of some trust company a sum
not less than $25,000 in cash or in bonds, State,
county or municipal, or bonds of the United States,
or loans as provided in this Section; said funds so
deposited shall be for the protection of investors in
such certificates, debentures, or other investment
securities wherever residing. Acts 1904, p. 74.
As to power of trust companies to receive deposits, see
§ 2817, par. 4. As to annual returns to be filed by corpora-
tions, see § 2209. As to criminal liability for violation of
this section, see § 628, P. C.
§ 2900. Statement of assets and liabilities. — Said
company, corporation, partnership, or association
shall file with the comptroller-general a statement,
verified by its president or secretary, showing its
assets and liabilities as fixed herein, its income for
the preceding year, the total amount of its reserve
fund now on hand, the number of certificates or
parts of certificates redeemed or paid, and the
amount of money used therefor: Provided, said
companies have been doing business in this State
for such a length of time.
§ 2901. License and renewal thereof. — When-
ever such company, corporation, partnership, or
association shall have deposited the above-men-
tioned amount and filed the verified statement as
required by the provisions of this Section, the
comptroller-general shall issue to said company,
corporation, partnership, or association a license to
do business in this State, which license shall expire
on the fifteenth day of the succeeding July; and
whenever such company, corporation, partnership
association, or individual shall make the deposi
and file the verified statement required herein, th«
comptroller-general shall issue to such company
corporation, partnership, association, or individua
a renewal of its license until the fifteenth day o
the succeeding July. A certificate from the officer;
of the depository shall be evidence to the comp
troller-general that such deposit has been made a;
herein required.
§ 2902. Annual statement required. — Ever;
such company, corporation, partnership, associa
tion, or individual shall, on or before the fifteentl
day of July of each year, file with the comptroller
general of the State of Georgia a statement of it
business for each twelve months preceding the firs
day of July in each year, which statement shall b
verified by the affidavit of its president or secretary
and shall show the assets and liabilities of the com
pany, corporation, partnership, or association mak
ing the statement, and the amount of its premium
receipts during the preceding year, and the amoun
passed to its reserve fund during the precedinj
year, and the amount distributed to investors.
§ 2903. License fee. — For every license issued b.
the comptroller-general, and for every renewal c
said license the company, corporation, partnership
or association shall pay to the comptroller-genera
a fee of $50.00.
§ 2904. Loans to holders of securities. — N
company, corporation, partnership, or associatio
as above defined shall hereafter loan to holders c
its bonds, certificates, debentures, or other invest
ment securities, out of its reserve fund, on sue
bonds, certificates, debentures, and other invesl
ment securities in force, an amount greater tha
the proportionate share of such bonds, debenture;
certificates, or other investment securities in sai
reserve fund; but when any such loan is made
shall be evidenced by the note of the borrowe
secured by a deposit of the bonds, debentures, cei
tificates, or other investment securities on whic
the same is made, as collateral security, which sai
note and collateral may be deposited with th
designated depository as a part of deposit hereir
before required, and shall be computed as makin
up so much of said required deposit as proportioi
ate share of said bonds, certificates, debentures, c
other investment securities so deposited in the m
tire reserve fund to not exceeding, however, M
amount loaned.
§ 2905. Interest on securities may be used. -
Every company, corporation, partnership, or a:
sociation may collect and use the interest on anj
security deposited as herein required, and ma
exchange any such securities for other securities (
equal value and of the kind authorized by this Se<
tion.
§ 2906. Reserve fund and capital stock, how ii
vested. — Every such company, corporation, par
nership, or association is hereby authorized to ii
vest its reserve fund, capital stock, and any increas
thereof in such real estate as may be authorized b
its charter, or in bonds, mortgages, lien notes, c
deeds of trust on unencumbered real estate, i
may be approved by the majority of the board <
[ 732 ]
2907
BONDED PUBLIC WAREHOUSEMEN
§ 2910
ectors, and in the bonds of this State or any
ler State of the United States, or in bonds of the
lited States, or in bonds of any county or incor-
rated city or town of this State or any other
ite of the United States, authorized to be issued
law, and any other security approved by the
ijority of the board of directors of such company,
rporation, partnership, or association.
§ 2907. Expert accountant, governor may ap-
int. — The Governor shall have the power, at any
ie that he may deem proper, to appoint expert
countants at the expense of any company, cor-
ration, partnership, or association operating uri-
r the provisions of this Section, to make an ex-
lination of its affairs, and if it shall be ascertained
said expert accountants that any company, cor-
ration, partnership, or association operating
der the provisions of this Section shall not have
sets sufficient to equal in value the reserve fund
ntributed by every contract in force, plus the
terest at three and one half per cent, per annum,
mpounded annually, said company shall be de-
ired insolvent and its license revoked.
\s to revocability of licenses, see § IS.
§ 2908. Bonds to be given by the officers. — All
icers of any company, corporation, partnership,
association governed by this Section, and doing
isiness in this State, who handle or have the
stody of any fund of such company, corporation,
rtnership, or association, shall give sufficient
mds for the faithful performance of their duties,
the board of directors may require, and no such
ficer shall be deemed qualified to enter upon the
ities of his office until his bond is approved by the
>ard of directors with whom such bond shall be
ed. The penalty for a failure of any company to
e and maintain the bonds shall be a fine of fifty
)llars for each day such company transacts busi-
es after such bonds become due. Said bonds
tall be held in trust for the benefit and protection
: all investors of such company, corporation,
irtnership, or association.
§ 2909. Non-resident companies. — Every such
Eipany, corporation, partnership, or association
•ganized under the laws of any other State, which
lall make a deposit with the proper authorities
i said State, or any other State of the United
tates, either in cash or in acceptable securities for
ie benefit and protection of its investors wherever
Biding, or shall comply with the laws of this State
pon the following conditions, to wit: It shall file
Eh the secretary of State of the commonwealth
certified copy of its charter or articles of incor-
oration, and a statement giving the location of
I office or officers in this State, and the name or
ames of its agents upon whom process can be
srved; and shall file with the comptroller-general
certificate from the proper authorities of the State
l which it may have been organized or had made
uch deposit, showing that the deposit aforesaid
ad been made. Such corporation shall, on or be-
Dre the fifteenth day of July in each year, make an
nnual statement as required by this Section, and
hall furnish to the comptroller-general a certifi-
ate from the proper officer of the State where it
hall have been organized or have made such de-
tosit, showing that the deposit herein required of
the companies organized under the laws of this
State for the preceding year has been made with
the authorities of such State for the protection of
its investors; and upon so doing, it shall be entitled
to a renewal of its license for one year from the
expiration of that already held by it: Provided,
when by the laws of any other State any taxes,
fines, penalties, or deposits of money or of securi-
ties, or other obligations or prohibitions or re-
quirements are imposed upon investment com-
panies organized under the laws of said State and
transacting business in such other State, or upon
the agents of such investment companies, greater
than those imposed upon similar companies by the
laws of this State, or when such laws of other
States shall require investment companies to de-
posit money or security for the protection of certifi-
cate-holders of such other States, or shall prohibit
companies of this State from transacting business
in said State without a special examination of said
companies or a computation of their liabilities by
the officers of said State, the same taxes, fines,
penalties, deposits, and all other requirements shall
be imposed upon all investment companies organ-
ized in such other State and doing business in this
State as are imposed upon such company or cor-
poration by the laws of the State in which said
company may be corporated: And provided further,
that where any such corporation, company, part-
nership, or association organized in any other State
shall have made a deposit in any other State of the
United States for the protection of holders of its
certificates, bonds, debentures, certificates of inter-
est, or other investment securities, wherever resid-
ing, less in amount than that required by the laws
of this State, it shall before doing business in this
State file a certificate of such deposit as herein re-
quired, and shall deposit an amount with the
treasurer of this State which, together with the
amount so deposited in such other States, shall
make up the total amount required by this Section
to be deposited by said companies in this State:
And provided, that when by the laws of another
State anyt such company shall have been required
to make, and shall have made, a deposit in such
State for the security of holders of its certificates,
bonds, debentures, certificates of interest, or other
investment securities in such State alone, said com-
pany shall not be required to make a deposit in this
State of its reserve fund accruing from its certifi-
cates, bonds debentures, certificates of interest, or
other investment securities, which, under the laws
of such other States, are secured by special deposit
in such State, and the holders of said bonds in such
State shall not be entitled to the benefit of securi-
ties deposited as herein provided under this Sec-
tion.
SECTION 11.
Bonded Public Warehousemen.
§ 2910. Bonded public warehousemen. — Any
person engaged in the business of a warehouseman,
or any corporation organized under the laws of
this State, and whose charter authorizes them to
engage in the business of a warehouseman within
this State, may, if they so desire, become a bonded
public warehouseman, and authorized to keep and
[ 733 ]
§ 2911
BONDED PUBLIC WAREHOUSEMEN
§ 291
maintain bonded public warehouses for the storage
of cotton and other goods, wares, and merchandise
as hereinafter prescribed, upon their giving the
bond hereinafter required. Acts 1899, p. 84.
As to rights and duties of a depository for hire, see §§
3501-3503. As to crime of unlawful disposition of deposited
goods, see § 701, P. C.
§ 2911. Bond to be given; the sureties. — Every
person or corporation desiring to become a bonded
public warehouseman, under the authority granted
by the preceding section, shall give bond to an
amount based on the estimated value said ware-
houseman will provide storage for. Said bond shall
be made payable to the clerk of the superior court
of the county wherein such bonded public ware-
house is situated, and be conditioned for the faith-
ful performance of his duties and liabilities as a
bonded public warehouseman under the provisions
of this Section. The surety or sureties upon said
bond shall be some one or more of the guarantee,
surety, fidelity-insurance, or fidelity and deposit
companies which are described in paragraphs 2554
to 2562, all of which paragraphs are applicable to
bonds given under this section so far as they are
pertinent. The clerk of the superior court shall fix
the amount of the bond and approve the surety.
As to provisions relating to fidelity insurance, see S§
2550-2562.
§ 2912. Liability of principal and surety. — When-
ever such bonded public warehouseman fails to
perform his duty as such, or violates any of the pro-
visions of this law relating to bonded public ware-
housemen, any person injured by such failure or
violation may bring his action in a court of com-
petent jurisdiction against the principal and sure-
ties upon the bond of said warehouseman.
As to venue of suits on fidelity bonds, see § 2553.
Cited in Roanoke Banking Co. v. Dunson, etc., Co., 30
Ga. 341, 117 S. E. 826.
§ 2913. Insurance of property stored and re-
ceipts.— Every such bonded public warehouseman
shall cause to be insured for the benefit of whom it
may concern, unless requested not to insure by the
owner, all property placed in storage with him in
his said bonded public warehouse, such insurance
to be so taken out as to cover and protect said
property from the time it is so stored with him.
Every such warehouseman shall, except as herein-
after provided, give to each person depositing
property with him for storage a receipt therefor,
which shall be negotiable in form, and shall de-
scribe the property, distinctly stating the brand or
distinguishing marks upon it, and, if such property
is grain, the quantity and inspected grade thereof.
The receipt shall also state the rate of charges for
storing the property, and amount and rate of insur-
ance thereon, and also the amount of the bond
given to the clerk of the court, as hereinabove pro-
vided: Provided, however, that every such ware-
houseman shall, upon request of any person de-
positing property with him for storage, give to such
person his non-negotiable receipt therefor, which
receipt shall have the words "non-negotiable"
plainly written, printed, or stamped on the face
thereof: And provided, that no assignment of such
non-negotiable receipt shall be effective until re-
corded on the books of the warehouseman issuing
it: Provided further, that the non-negotiable re-
ceipt may be surrendered at any time by the owne
thereof, and a negotiable receipt issued in lieu c
the same.
As to negotiation of notes, see § 4273. As to negotiatio
of bonds, etc., see § 4274.
§ 2914. Title passes by transfer of receipt. — Th
title to cotton and other goods, wares, and mer
chandise stored in such bonded public warehouse
shall pass to a purchaser or pledgee thereof by th
delivery to him of the said warehouseman's receip
therefor, with an endorsement thereon to sue:
purchaser or pledgee, signed by the person to whon
such receipt was originally given by said ware
houseman or by the endorsee of such receipt.
As to assignment of choses in action, see § 3653. As t
sale by agent in possession of a receipt, see § 4119. As t
necessity of delivery of goods to 'complete a sale, see
4125.
§ 2915. Mixed grain or other property. — Whe
grain or other property is stored in such bonde
public warehouses in such a manner that differen
lots or parcels are mixed together, so that th
identity thereof can not be accurately preservec
the warehouseman's receipt' for any portion of suci
grain or property shall be deemed a valid title to I
much thereof as is designated in said receipt, with
out regard to any separation or identification.
As to loss of title by agent who mixes goods willfully
see § 3592. As to burden of proof where goods are inter
mingled, see § 4587.
§ 2916. Shall keep books open to inspection. -
Every such warehouseman shall keep a book ii
which shall be entered an account of all his -trans
aofc^ns relating to warehousing, storing, and de
livering cotton, goods, wares, and merchandise, am
to the issuing of receipts therefor, which book shal
be open to the inspection of any person actually in
terested in the property to which such entrie
relate.
§ 2917. Sale for overdue storage. — Every bonde*
public warehouseman who shall have in his posses
sion any property by virtue of any agreement o
warehouse receipt for the same, on which a clain
for storage of the same is at least one year overdue
may proceed to sell the same at public auction, am
out of the proceeds may retain all charges for stor
age on such goods, wares, and merchandise, an<
any advances that may have been made thereon b;
him on them, with legal interest thereon, and th
expenses of advertising and sale thereof. But m
sale shall be made until after the giving of printei
or written notice of such sale to the person or per
sons in whose name such goods, wares, and mer
chandise were stored, requiring him or them, nam
ing them, to pay the arrears or amounts due fo
such storage; and in case of default in so doing
the goods, wares, and merchandise may be sold t<
pay the same at a time and place to be specified ii
such notice.
As to duty of depositories for hire, see § 3501. As to lien
of depositories, see § 3363.
§ 2918. Notice, how served, or given. — The no
tice required in the last preceding section shall b<
served by delivering to the person or persons ii
whose name such goods, wares, and merchandis<
were stored, or by leaving it at his usual place o
abode, if within this State, at least thirty days be
fore the time of such sale, and a return of the serv
[734]
f 2919
FRANCHISES CONSIDERED, AND RIGHTS ACQUIRED
§ 2927
ce shall be made by some officer authorized to
erve civil process, or by some other person with
tn affidavit of the truth of the return. If the party
toring such property can not with reasonable
liligence be found within this State, then such no-
ice shall be given by publication once in each week
or two successive weeks, the last publication to be
t least ten days before the time of such sale, in a
lewspaper published in the city or town where
uch warehouse is located, or, if there is no such
iaper, in one of the principal papers published in
he county in which said city or town is located. In
he event that the party storing such goods shall
lave parted with the same, and the purchaser shall
lave notified the warehouseman, with his address,
uch notice shall be given to such person in lieu of
he person storing the goods.
§ 2919. Proceeds of sale. — Such bonded public
warehouseman shall make an entry, in a book kept
or the purpose, of the balance or surplus of pror
eeds of sale, if any, and such balance or surplus, if
ny, shall be paid over to such person or persons
ntitled thereto, on demand.
§ 2920. Sale of perishable property. — Whenever
bonded public warehouseman has in his posses-
ion any property which is of a perishable nature,
b will deteriorate in value by keeping, or upon
which the charges for storage will be likely to ex-
eed the value thereof, or which by its odor, leak-
ge, inflammability, or explosive nature is likely to
njure other goods, such property having been
tored upon non-negotiable receipt, and when said
warehouseman has notified the person in whose
lame the property was received to remove said
iroperty, but such person has refused or omitted to
eceive and take away such property and to pay
he storage and proper charges thereon, said
londed public warehouseman may, in the exercise
if a reasonable discretion, sell the same at public
ir private sale without advertising, and the pro-
eeds, if there are any proceeds, after deducting the
mount of said storage and charges and expenses
tf sale, shall be paid or credited to the person in
whose name the property was stored; and if said
lerson can not be found, on reasonable inquiry, the
ale may be made without any notice, and the pro-
:eeds of such sale, after deducting the amount of
torage, expenses of sale, and other'proper charges,
hall be paid to the person entitled to the same.
§ 2921. Unsalable property. — When a bonded
>ublic warehouseman, under the provisions of the
receding section, has made a reasonable effort to
;ell perishable and worthless property, and has
)een unable to do so because of its being of little
)r no value, he may then proceed to dispose of
such property in any lawful manner, and he shall
lot be liable in any way for property so disposed
)f.
§ 2922. Storage, liability for. — When a bonded
Dublic warehouseman, under the provisions of the
:wo -preceding sections, has sold or otherwise dis-
Dosed of property, and the proceeds of such sale
lave not equaled the amount necessary to pay the
storage charges, expenses of sale, and other
:harges against said property, then the person in
whose name said property was stored shall be
[7
liable to said bonded public warehouseman for any
amount which, added to the proceeds of such sale,
will be sufficient to pay all the proper charges
upon said property; or in case such property was
valueless and there were no proceeds realized from
its disposition, the person in whose name said
property was stored shall be liable to said public
warehouseman for all proper charges against said
property.
SECTION 12.
Waterworks Companies.
§ 2923. (§ 2407.) Rights conferred on corpora-
tions operating waterworks. — Corporations, com-
panies, partnerships, or individuals, constructing,
owning, operating, or carrying on waterworks in
this State, shall have the right, power, privilege,
and authority to lease, purchase, or condemn land,
receive donations, grants, easements, or other uses
of land for the purpose of constructing and carry-
ing on waterworks in this State. Acts 1889, p. 184.
See 11 Cum. Dig. 473.
Right of Eminent Domain Conferred. — By this section and
§ 2924, the legislature conferred upon the corporations and
individuals operating a system of waterworks the privilege
of exercising the right of eminent domain, whenever the
exercise is essential to acquire land necessary to effectuate
its legitimate purposes. Thorn v. Georgia Mfg., etc., Co.,
128 Ga. 187, 190, 57 S. E. 75.
§ 2924. (§ 2408.) Assessors to condemn rights
of way or sites. — In the event any of the above-re-
cited corporations or individuals do not procure
from the owners thereof, by contract, title to the
land necessary or proper for the construction and
successful operation of waterworks, and the parties
can not agree upon the damage done, the same
shall be assessed as provided in this Code.
As to right of corporations to take private property, see
§ 5206. As 1o what condemnation is applicable, see § 5235.
§ 2925. (§ 2409.) Consent of city. — None of the
provisions of the two preceding sections shall be-
come operative until after the said corporation,
company, or individual shall have bona fide entered
into a contract with the proper authorities of some
incorporated city or village of this State, for sup-
plying water for public purposes.
SECTION 13.
Franchises Considered, and Rights Acquired.
§ 2926. Franchises considered as assets, when. —
Whenever any private corporation, created under
any general or special law of this State, shall be-
come insolvent, and its assets be the subject of
administration by the court, the franchises pos-
sessed and enjoyed by such corporation in virtue of
its charter or order of incorporation shall be con-
sidered assets, and the same may be sold, under
order of the court, through a receiver or otherwise.
Act,s 1897, p. 61.
As to disposition of corporate assets, see § 2245. As to
when a franchise is exclusive, see § 3640.
§ 2927. Rights acquired by purchase. — The
purchaser or purchasers of such franchises, their
associates, successors, and assigns, shall, upon com-
plying with the requirements of this Section, have
and acquire and may thereafter exercise and enjoy
35 ]
§ 2928
UNDER ACTS OF 1920
§ 2928(5)
the same rights, privileges, immunities, and advan-
tages conferred in the charter or order of incor-
poration of such insolvent corporation, as fully and
absolutely, in all respects, as the former company
might or could have had and enjoyed the same had
no such sale and purchase taken place: Provided,
that nothing in this Section shall be construed to
reserve to such purchaser or purchasers any ex-
emption from State, county, or municipal taxation,
or any special rights, privileges, or immunities in-
consistent with the Constitution of this State.
As to property exempt from taxation, see § 998. As to
right of purchasers of a railroad to claim special tax ex-
emptions, see § 2585, par. 11. As to prohibition on legis-
lature exempting private corporations from taxation, see
I 6554.
§ 2928. Purchasers may organize anew. — Such
purchasers, their associates, and assigns may or-
ganize anew in the manner prescribed by law.
As to right of purchasers of a railroad to organize anew,
see I 2585, par,
12.
ARTICLE 10.
Co-operative Marketing Associations.
SECTION l.
Under Acts of 1920.
§ 2928(1). Organization; capital stock; applica-
tion; title; dividend; reserve; profits. — Five or
more citizens of the State of Georgia may associate
themselves together with such other persons as
they desire, as a co-operative corporation plan for
the purpose of conducting any agricultural, dairy,
mercantile, manufacturing, or merchanical, or
other business on the co-operative plan, either with
or without capital stock, but when the organiza-
tion is organized or conducted for profit, it must
have capital stock, and when the purpose of the
members is for mutual help only, no capital stock
shall be required. Provided that the provisions of
this Act shall apply only to those persons engaged
in agricultural pursuits, dairy business, nut growers
and fruit growers. The title of such corporation
shall begin with "the," and end with "association,"
"company," "corporation," "exchange," "society" or
"union." For the purpose of this Act the "co-oper-
ative plan," shall be construed to mean a business
firm, when organized with a capital stock, that dis-
tributes the net profits of this business, by: First,
the payment of a fixed dividend not to exceed 8 per
cent, on its capital stock. Second, by setting aside
a fixed per cent, annually not to exceed ten per
cent, of the remaining profits until the reserve fund
reaches an amount not to exceed 50 per cent, of the
capital stock; third, the remaining profits to be
divided each year among the stockholders or
patrons, or both as provided by by-laws, in propor-
tion to patronage. Provided that any agricultural
or dairy business incorporated hereunder, shall
have the right to manufacture, and deal in any
article, necessa^r to the conduct of their respective
business. Acts 1920, pp. 125, 126.
Editor's Note. — There are two co-operative marketing acts
in Georgia. One was passed in 1920, the other in 1921, they
are set out under §§ 1 and 2V respectively, of this article.
The act of 1920 was passed for the purpose of incorporat-
ing "any agricultural, dairy, mercantile, manufacturing,
mechanical or other business on a co-operative plan whether
with or without capital stock" as provided in this section.
The scope of businesses which it includes is broader than
that of the act of 1921, because the act of 1921 is limited to
co-operative associations of persons engaged in the produc-
tion of agricultural products. See § 2928 (14).
§ 2928(2). Articles of incorporation. — They shall j
sign and acknowledge written articles of incor-j
poration, which shall contain the names of the cor-
poration, the names and residence of the persons
forming same, the purposes of the organization, the
principal place of business, the amount of capital
stock, if any, the number of shares and par value of
each share, the number of directors and the names
of those selected for the first term and the time for
which the corporation is to continue not to exceed
fifty years. Acts 1920, pp. 125, 126.
§ 2928(3). Certified copy filed. — A certified
copy of the articles of incorporation shall be filed
with the Secretary of State, who shall file them and
in his discretion issue his official acknowledgment
of said filing which shall be returned to said incor-
poration, for which he shall receive the sum of one
dollar. A certified copy of the original articles of
incorporation and of the certificate of filing of the
Secretary of State shall be filed with and recorded
by the Clerk of the Superior Court in the charter
book of the county in which said incorporation has
its office, or principal place of business, and for
which said clerk shall be paid the sum of three
dollars.
Said clerk shall thereupon deliver to said cor-
poration a certificate of such filing and recording
which is hereby made their certificate of incorpora-
tion and right to commence business as such. Acts
1920, pp. 125, 126.
§ 2928(4). Commencement of business. — No
corporation organized under the provisions of this
Act, when organized with capital stock shall com-
mence business until at least 20 per cent, of its
capital stock has been paid for in actual cash and a
sworn statement has been filed with the Secretary
of State. This section shall apply to only those
organized with capital stock. Acts 1920, pp. 125,
127.
§ 2928(5). Directors and officers; election; re-
moval; voting. — Every association shall be man-
aged by a board of directors of not less than five.
The directors shall be elected by and from the
stockholders of the association at such time and for
such term of office as the by-laws may prescribe
and shall hold office for the time which elected and
until their successors are elected and shall enter
upon the discharge of their duties. But a majority
of the stockholders shall have the power at any
regular or special stockholders meetings legally
called, to remove any director or official for cause,
and fill the vacancy, and thereupon the directors or
officials so removed shall cease to be directors or
officials of said association. The officers of every
such association shall be a President, one or more
Vice-Presidents, a Secretary and Treasurer, who
shall be elected annually, by the directors, and each
of said officers must be a director of the association.
The office of Secretary and Treasurer may be com-
bined. Each stockholder shall be entitled to only
one vote on all matters regardless of the amount
held or owned. Voting [is] permissible, by written
[736]
§ 2928(6)
CO-OPERATIVE MARKETING ASSOCIATIONS— ACTS OF 1921 § 2928(15)
proxy, when subject is plainly specified in writing.
Acts 1920, pp. 125, 127.
§ 2928(6). Stock limit, 20 per cent. — No person
shall be allowed to own or have an interest of
more than 20 per cent, of the capital stock of such
corporation. Acts 1920, pp. 125, 127. ■
§ 2928(7). Membership; powers. — Such associa-
tions shall have the power to adopt by-laws for
qualifications for membership and on what condi-
tions and when membership shall cease and the
mode of manner of expulsion of a member, and
that such association shall have the right to carry
on said business, or any branches thereof, or any
other business, and such associations shall have
and may exercise the powers authorized by this
Act and all other powers necessarily incidental
thereto with such powers as may be exercised by
private corporations under the laws of this State
where the same are not inconsistent with these
granted by this Act. Acts 1920, pp. 125, 128.
§ 2928(8). By-laws. — Each corporation shall
formulate by-laws prescribing the duties of the di-
rectors and officials; the manner of distributing the
profits of the business, the manner in becoming a
member, and such other rules and regulations for
its officials and members as will tend to make the
corporation an effective business organization; buy,
sell and own real estate and other property, and to
sue and be sued in its corporate name. Acts 1920,
pp. 125, 128.
§ 2928(9). Annual report; application of act. —
Each corporation organized under the provisions
of this Act shall make an annual report to the secre-
tary of State; provided, such co-operative corpora-
tions shall be required to report the names of its
stockholders and the amount of stock owned by
each for such years only as may be required by the
Secretary of State. Be it further enacted, That all
co-operative corporations, companies or associations
heretofore organized and doing business under the
prior statutes or which have attempted to organize
and do business, shall have the benefit of the pro-
visions of this Act, and may be bound thereby on
the paying of the fees provided for in this Act, and
filing with the Secretary of State written declara-
tion, signed and sworn to by the President and
Secretary to the effect that such co-operative cor-
poration or association has by a majority vote of
the stockholders decided to accept the benefit of
and be bound by the provisions of this Act. No as-
sociation organized under this Act shall be required
to do or perform anything not specifically required
herein in order to become a corporation or to con-
tinue its business as such. Such corporations as
may be organized and operated under the provi-
sions of this Act may subscribe for, own, hold and
vote stock in any similar corporation or become a
member of such corporation where organized
without capital stock. Acts 1920, pp. 125, 128.
§ 2928(10). Title "co-operative." — No corpora-
tion, or company, hereafter organized or doing
business for profit in this State shall be entitled to
use the title "co-operative" as part of its corporate
or business name or title, unless it has complied
with the provisions of this Act, and any corpora-
tion, association or company violating the provi-
Ga. Code— 24 [ 7
sions of this section may be enjoined from doing
business under such name at the instance of any
stockholder or any association legally organized
hereunder. Acts 1920, pp. 125, 129.
§ 2928(11). Charter. — A charter under this law
may be granted for any amount. Acts 1920, pp.
125, 129.
§ 2928(12). Dissolution. — Any co-operative
corporation association under the terms of this Act
may dissolve said corporation on written request
by two-thirds of the members of said corporation.
Acts 1920, pp. 125, 129.
SECTION 2.
Under Acts of 1921.
§ 2928(13). Definitions of terms; associations
deemed non-profit. — As used in this Act,
(a) The term "agricultural products" shall in-
clude horticultural, viticultural, forestry, dairy,
livestock, poultry, bee and any farm products.
(b) The term "member" shall include actual
members of associations without capital stock and
holders of common stock in associations organized
with capital stock.
(c) The term "association" means any corpora-
tion organized under this Act; and
(d) The term "person" shall include individuals,
firms, partnerships, corporations and associations.
Associations organized hereunder shall be
deemed non-profit, inasmuch as they are not or-
ganized to make profits for themselves, as such, or
for their members, as such, but only for their mem-
bers as producers.
This Act shall be referred to as "Co-operative
Marketing Act." Acts 1921, pp. 139, 140.
Editor's Note. — For a comparison of this act with the act
of 1920 see the editor's note under § 2928 (1).
It was held in Harrell v. Association, 160 Ga. 30, 126 S. E.
531, that the title of this act is sufficiently broad to include
the provisions of §§ 2928 (15), (16), (17) (before the amend-
ment of 1925), (27), and (35), and is therefore not violative
of the constitution, § 6436.
Tn his specially concurring opinion Mr. Chief Justice Rus-
sell indicated that this act is not unconstitutional because
it permits one who has contracted to deliver his products
to be restrained from breaching and violating the contract
to the irreparable injury of the opposite party. He takes
the position also that the act is not unconstitutional be-
cause it creates a monopoly in favor of the association
within the meaning of the constitution, § 6466, in that one
association may own shares in another; nor is the act in-
valid because in restraint of trade. In reaching this con-
clusion it is pointed out by the Chief Justice that the as-
sociation has no capital stock, is forbidden to make any
profits, that the purpose of this act is to promote intelli-
gent and orderly marketing of agricultural products through
co-operations. See note under § 2928 (27).
§ 2928(14). Co-operative associations. — Five
(5) or more persons engaged in the production of
agricultural products may form a non-profit, co-
operative association, with or without capital
stock, under the provisions of this Act. Acts
1921, pp. 139, 140.
§ 2928(15). Activities. — An association may be
organized to engage in any activity in connection
with the marketing or selling of the agricultural
products of its members, or with the harvesting,
preserving, drying, processing, canning, packing,
storing, handling, shipping, ginning or utilization
,7]
§ 2928(16) CO-OPERATIVE MARKETING ASSOCIATIONS— ACTS OF 1921 § 2928(18)
thereof; or in connection with the manufacturing,
selling or supplying to its members of machinery,
equipment or supplies; or in the financing of the
above enumerated activities; or in any one or more
of the activities specified herein. Acts 1921, pp. 139,
140.
See editor's note under § 2928 (13).
§ 2928(16). Powers. — Each association incor-
porated under this Act shall have the following
powers:
(a) To engage in any activity in connection with
the marketing, selling, harvesting, preserving, dry-
ing, processing, canning, packing, storing, handling,
ginning or utilization of any agricultural products
produced or delivered to it by its members; or the
manufacturing or marketing of the by-products
thereof; or in connection with the purchase, hiring,
or use by its members of supplies, machinery or
equipment; or in the financing of any such activi-
ties; or in any one or more of the activities specified
in this section. No association, however, shall
handle the agricultural products of any non-mem-
ber.
(b) To borrow money and to make advances to
members.
(c) To act as the agent or representative of any
member or members in any of the above mentioned
activities.
(d) To purchase or otherwise acquire, and to
hold, own, and exercise all rights of ownership in,
and to sell, transfer, or pledge shares of the capital
stock or bonds of any corporation or association
engaged in any related activity or in the handling
or marketing of any of the products handled by the
association.
(e) To establish reserves and to invest the funds
thereof in bonds or such other property as may be
provided in the By-Laws.
(f) To buy, hold and exercise all privileges of
ownership over such real or personal property as
may be necessary or convenient for the conducting
and operation of any of the business of the associa-
tion or incidental thereto.
(g) To establish, secure, own and develop
patents, trade marks and copyrights.
(h) To do each and everything necessary, suit-
able or proper for the accomplishment of any one
of the purposes or the attainment of any one or
more of the objects herein enumerated; or con-
ducive to or expedient for the interest or benefit
of the association; and to contract accordingly; and
in addition to exercise and possess all powers,
rights and privileges necessary or incidental to the
purposes for which the association is organized or
to the activities in. which it is engaged; and in addi-
tion, any other rights, powers, and privileges
granted by the laws of this State to ordinary cor-
porations, except such as are inconsistent with ex-
press provisions of this Act; and to do any such
thing any where. Acts 1921, pp. 139, 140-1, 142.
See editor's note under § 2928 (13).
§ 2928(17). Members to handle products only
through association. — Under the terms and con-
ditions prescribed in its By-Laws, an association
may admit as members (or issue common stock
to) only persons or associations or corporations
composed solely of persons engaged in the pro-
duction of the agricultural products to be handled
by or through the association, including the
lessees and tenants of land used for the production
of such products and any lessors and landlords
who receive- as rent all or part of the crop raised
on the leased premises; and any such persons or
associations of persons or corporations may be
citizens of or organized under the laws of this
State or any other state of the United States, and
shall handle such agricultural products for mem-
bers only.
If a member of a non-stock association be
other than a natural person, such member may be
represented by any individual, associate, officer or
member thereof, duly authorized in writing.
One association organized hereunder may be-
come a member or stockholder of any other as-
sociation or associations organized hereunder.
Acts 1921, pp. 139, 142; 1925, p. 150.
See editor's note under § 2928 (13).
§ 2928(18). Articles of incorporations. — Each
association formed under this Act must prepare
and file Articles of Incorporation, setting forth:
(a) The name of the association.
(b) The purpose for which it is formed.
(c) The place where its principal business wilt
be transacted.
(d) The term for which it is to exist, not ex-
ceeding fifty (50) years.
(e) The number of directors thereof, which
must not be less than five (5) and may be any
number in excess thereof, and the term of office of
such directors; and the names and addresses of
the persons who are to serve as incorporating di-
rectors until their successors are elected and
qualified.
(f) If organized without capital stock, whether
the property rights and interest of each member-
shall be equal or unequal: and if unequal, the
articles shall set forth the general rule or rules
applicable to all members by which the property
rights and interests, respectively, of each member
may and shall be determined and fixed; and the
association shall have the power to admit new
members who shall be entitled to share in the
property of the association with the old members,
in accordance with such general rule or rules.
This provision of the Articles of Incorporation
shall not be altered, amended, or repealed except
by the written consent or the vote of three-fourths
of the members.
(g) If organized with capital stock, the amount
of such stock and the number of shares into which
it is divided and the par value thereof. The capital
stock may be divided into preferred and common
stock. If so divided, the Articles of Incorporation
must contain a statement of the number of shares
of stock to which preference is granted and the
number of shares of stock to which no preference
is granted and the nature and extent of the pre-
ference and privileges granted to each.
The articles must be subscribed by the incor-
porators and acknowledged by one of them before
an officer authorized by the law of this State to*
take and certify acknowledgments of deeds and'
[738]
2928(19) CO-OPERATIVE MARKETING ASSOCIATIONS— ACTS OF 1921 § 2928(22)
onveyances; and shall be filed in accordance
nth the provisions of the general corporation
iw of this State. . When so filed the said Articles
f Incorporation, or certified copies thereof, shall
e received in all the Courts of this State, and
ther places, as prima facie evidence of the facts
ontained therein, and of the due incorporation of
ach association. Acts 1921, pp. 139, 142, 143.
§ 2928(19). Amendments. — The Articles of
ncorporation may be altered or amended at any
jgular meeting or any special meeting called for
lat purpose. An amendment must first be ap-
roved by two-thirds of the directors and then
dopted by a vote representing a majority of all
le members of the association. Amendments to
ie Articles of Incorporation when so adopted
lall be filed in accordance with the provisions of
ie general corporation law of this State. Acts
921, pp. 139, 143.
§ 2928(20). Adoption of by-laws. — Each as-
Dciation incorporated under this Act must, with-
l thirty (30) days after its incorporation, adopt
)r its government and management, a code of
y-Laws, not inconsistent with the powers
ranted by this Act. A majority vote of the
lembers or stockholders, or their written assent,
necessary to adopt such By-Laws. Each as-
Dciation under its By-Laws may also provide for
ny or all of the following matters:
(a) The time, place and manner of calling and
Dnducting its meetings.
(b) The number of stockholders or members
Dnstituting a quorum.
(c) The right of members or stockholders to
ote by proxy or by mail or by both, and the con-
itions, manner, form and effects of such votes.
(d) The number of directors constituting a
uorum.
(e) The qualifications, compensation and duties
nd term of office of directors and officers; time
f their election and the mode and manner of
iving notice thereof.
(f) Penalties for violations of By-Laws.
(g) The amount of entrance, organization and
lembership fees, if any; the manner and method
f collection of the same, and the purposes for
rhich they may be used.
(h) The amount which each member or stock-
older shall be required to pay annually or from
ime to time, if at all, to carry on the business of
tie association; the charge, if any, to be paid by
ach member or stockholder for services rendered
y the association to him and the time of payment
nd the manner of collection; and the marketing
ontract between the association and its members
r stockholders which every member or stock-
older may be required to sign.
(i) The number and qualification of members
r stockholders of the association and the condi-
ions precedent to membership or ownership of
ommon stock; the method, time and manner of
ermitting members to withdraw or the holders of
ommon stock to transfer their stock; the manner
>f assignment and transfer of the interest of mem-
>ers, and of the shares of common stock; the con-
iitions upon which, and time when membership
of any member shall cease. The automatic sus-
pension of the rights of a member when he ceases
to be eligible to membership in the association,
and mode, manner and effect of the expulsion of a
member; manner of determining the value of a
member's interest and provision for its purchase
by the association upon the death or withdrawal
of a member or stockholder, or upon the expulsion
of a member or forfeiture of his membership, or,
at the option of the association, by conclusive ap-
praisal by the board of directors. In case of the
withdrawal or expulsion of a member, the board
of directors shall equitably and conclusively ap-
praise his property interests in the association and
shall fix the amount thereof in money, which shall
be paid to him within one year after such expul-
sion or withdrawal. Acts 1921, pp. 139, 144, 145.
§ 2928(21). Meetings. — In its By-Laws, each
association shall provide for one or more regular
meetings annually. The Board of Directors shall
have the right to call a special meeting at any
time, and ten per cent, of the members or stock-
holders may file a petition stating the specific
business to be brought before the association and
demand a special meeting at any time. Such meet-
ing must thereupon be called by the Directors.
Notice of all meetings, together with a statement
of the purpose thereof, shall be mailed to each
member at least ten days prior to the meeting:
provided, however, that the By-Laws may require
instead that such notice may be given by publica-
tion in a newspaper of general circulation, pub-
lished at the principal place of business of the
association. Acts 1921, pp. 139, 145.
§ 2928(22). Directors; election; appointment;
compensations; vacancies. — The affairs of the as-
sociation shall be managed by a Board of not less
than five directors, elected by the members or
stockholders from their own number. The By-
Laws may provide that the territory in which the
association has members shall be divided into
districts and that the directors shall be elected ac-
cording to such districts. In such a case the By-
Laws shall specify the number of directors to be
elected by each district, the manner and method of
reapportioning the directors and of redisricting
the territory covered by the association. The By-
Laws may provide that primary elections shall be
held in each district to elect the directors appor-
tioned to such districts and the result of all such
primary elections must be ratified by the next reg-
ular meeting of the association.
The By-Laws may provide that one or more
directors may be appointed by the State Commis-
sioner of Agriculture, the Dean of the College of
Agriculture or any other public official or commis-
sion. The Director or Directors so appointed
need not be members or stockholders of the as-
sociation, but shall have the same powers and
rights as other directors.
An association may provide a fair remuneration
for the time actually spent by its officers and di-
rectors in its service. No director, during the
term of his office, shall be a party to a contract
for profit with the association differing in any way
from the business relations accorded regular mem-
bers or holders of common stock of the associa-
[ 739 ]
§ 2928(23) CO-OPERATIVE MARKETING ASSOCIATIONS— ACTS OF 1921 § 2928(27)
tion, or to any other kind of contract differing
from terms generally current in that district.
When a vacancy on the Board of Directors
occurs, other than by expiration of term, the re-
maining members of the Board, by a majority
vote, shall fill the vacancy, unless the By-Laws
provide for an election of directors by district. In
such a case the Board of Directors shall immedi-
ately call a special meeting of the members or
stockholders in that district to fill the vacancy.
Acts 1921, pp. 139, 146.
§ 2928(23). Officers. — The Directors shall
elect from their number a President and one or
more Vice-Presidents. They shall also elect a
Secretar}' and Treasurer, who need not be di-
rectors, and they may combine the two latter
offices and designate the combined office as secre-
tary-treasurer. The Treasurer may be a bank or
any depositary, and as such shall not be considered
as an officer but as a function of the Board of Di-
rectors. In such case the Secretary shall pre-
form the usual accounting duties of the treasurer,
excepting that the funds shall be deposited only as
authorized by the Board of Directors. Acts 1921,
pp. 139, 147.
§ 2928(24). Members without capital stock;
issuance of stock; liability; common stock;
votes; preferred stock. — When a member of an
association established without capital stock has
paid his membership fee in full, he shall receive
a certificate of membership.
No association shall issue stock to a member
until it has been fully paid for. The promissory
notes of the members may be accepted by the
association as full or partial payment. The as-
sociation shall hold the stock as security for the
payment of the note, but such retention as se-
curity shall not affect the member's right to
vote.
Except for debts lawfully contracted between
him and the association, no member shall be
liable for the debts of the association to an
amount exceeding the sum remaining unpaid on
his membership fee or his subscription to the
capital stock, including any unpaid balance or
any promissory notes given in payment thereof.
No stockholder of a co-operative association
shall own more than twenty per cent. (20%) of
the common stock of the association; and an as-
sociation, in its By-Laws, may limit the amount
of common stock which one member may own
to any amount less than twenty per cent, of the
common stock.
No member or stockholder shall be entitled to
more than one vote.
Any association organized with stock under
this Act may issue preferred stock, with or
without the right to vote. Such stock may be
redeemable or retirable by the association on
such terms and conditions as may be provided
for by the Articles of Incorporation and printed
on the face of the Certificate.
The By-Laws shall prohibit the transfer of the
common stock of the association to persons not
engaged in the production of the agricultural
products handled by the association, and such
restrictions must be printed upon every certifi-
cate of stock subject thereto.
The association may at any time, except when
the debts of the association exceed fifty per cent.
(50%) of the assets thereof, buy in or purchase
its common stock at book value thereof as con-
clusively determined by the Board of Directors
and pay for it in cash within one (1) year there-
after. Acts 1921, pp. 139, 147-8.
§ 2928(25). Removal of officers. — Any mem-
ber may bring charges against an officer or di-
rector by filing them in writing with the secre-
tary of the association, together with a petition
signed by ten per cent, of the members, request-
ing the removal of the officer or director in
question. The removal shall be voted upon at
the next regular or special meeting of the asso-
ciation and, by a vote of a majority of the mem-
bers, the association may remove the officer or
director and fill the vacancy. The director or
officer against whom such charges have been
brought shall be informed in writing of the
charges previous to the meeting and shall have
an opportunity at the meeting to be heard in
person or by counsel and to present witnesses;
and the person or persons bringing the charges
against him shall have the same opportunity.
In case the By-Laws provide for election of;
directors by districts with primary elections in|
each district, then the petition for removal of a!
director must be signed by twenty per cent, of
the members residing in the district from whichj
he was elected. The Board of Directors must
call a special meeting of the members residing]
in that district to consider the removal of the di-
rector. By a vote of the majority of the mem
bers of that district, the director in question
shall be removed from office. Acts 1921, pp
139, 148.
§ 2928(26). Special meetings of stockholders
— Upon demand of one-third of the entire Board
of Directors, any matter that has been approved
or passed by the Board must be referred to the
entire membership or the stockholders for deci
sion at the next special or regular meeting; pro-l
vided, however, that a special meeting may be
called for the purpose. Acts 1921, pp. 139, 149
§ 2928(27). Marketing contracts. — The asso
ciation and its members may make and execute
marketing contracts, requiring the members tc
sell, for any period of time, not over ten years
all or any specified part of their agricultura
products or specified commodities exclusively tc
or through the association or any facilities to be
created by the association. The contract maj
provide that the association may sell or re-sel
the products of its members, with or withou
taking title thereto; and pay over to its member;
the re-sale price, after deducting all necessarj
selling, overhead and other costs and expenses
including interest on preferred stock, not ex
ceeding 8 per cent, per annum, and reserves foi
retiring the stock, if any; and other proper re
serves; and interest not exceeding eight pe
cent, per annum upon common stock; or othei
items deemed proper.
The By-Laws and the marketing contract maj
fix, as liquidated damages, specified sums to b<
paid by the member or stockholder to the asso-
ciation upon the breach by him of any provisior
of the marketing contract regarding the sale O!
delivery or withholding of products; and ma]
[ 740]
§ 2928(28) CO-OPERATIVE MARKETING ASSOCIATIONS— ACTS OF 1921 § 2928(34)
further provide that the member will pay all
costs, premiums for bonds, expenses and fees in
case any action is brought upon the contract by
the association; and any such provisions shall
}e valid and enforceable in the courts of this
State.
In the event of any such breach or threatened
preach of such marketing contract by a member,
:he association shall be entitled to an injunction
;o prevent the further breach of the contract,
ind to a degree of specific performance thereof.
Pending the adjudication of such an action and
ipon filing a verified complaint showing the
>reach or threatened breach, and upon filing a
sufficient bond, the association shall be entitled
o a temporary restraining order and prelimi-
lary injunction against the member. Acts 1921,
)p. 139, 149.
See editor's note under § 2928 (13).
Constitutionality. — So much of this section, as seeks to
mthorize the by-laws and marketing contract to fix liqui-
lated damages and to require the members to pay all costs,
jremiums for bonds, expenses and fees, as well as providing
or injunction and a decree of specific performance, is not
mconstitutional and void as being in conflict with the con-
stitution, § 6391, in that the general laws of the State have
provided for the issuing of temporary injunction, for the
)ayment of court costs, and other provisions stated in said
section. Harrell v. Association, 160 Ga. 30, 126 S. E. 331.
Although for technical reasons the court failed to con-
;ider the question, Mr. Chief Justice Russell in his specially
incurring opinion held that this section is not unconsli-
utional because it creates a monopoly or is in restraint of
rade. He held further that the plaintiff in error, being a
nember and officer of the association organized under this
ict, is not in position to attack the act upon this ground,
larrell v. Assn., 160 Ga. 30, 43, 126 S. E. 531.
§ 2928(28). Interest on preferred stock. —
Whenever an association organized hereunder
vith preferred capital stock, shall purchase the
tock or any property, or any interest in any
iroperty of any person, firm, or corporation, or
ssociation, it may discharge the obligations so
ncurred, wholly or in part, by exchanging for
he acquired interest, shares of its preferred
apital stock to an amount which at par value
rauld equal a fair market value of the stock or
titerest so purchased, as determined by the
Soard of Directors. In that case the transfer to
he association of the stock or interest pur-
hased shall be equivalent to payment in cash
or the shares of stock issued. Acts 1921, pp.
39, 150.
§ 2928(29). Reports of associations.— Each
ssociation formed under this Act shall prepare
nd make out an annual report on forms fur-
ished by the Secretary of State containing the
ame of the association, its principal place of
usiness and a general statement of its business
perations during the fiscal year, showing the
mount of capital stock paid up and the number
f stockholders of a stock association or the
umber of members and amount of membership
ees received, if a non-stock association; the to-
al expenses of operations; the amount of its in-
ebtedness, or liability, and its balance sheets,
^.cts 1921, pp. 139, 150.
§ 2928(30). Inapplicable provisions of law. —
Iny provisions of law which are in conflict with
his Act shall not be construed as applying to
he associations herein provided for. Acts 1921.
>p. 139, 150.
§ 2928(31). Word "co-operative" in business
names. — No person, firm, corporation or asso-
ciation, hereafter organized or doing business in
this State as a co-operative association to mar-
ket agricultural products shall be entitled to use
the word "co-operative" as part of its corporate
or other business name or title unless it has
complied with the provisions of this Act or of
the Act on Co-operative Marketing Associations
approved August 17, 1920 [§§ 2928(1)-2928(12) ].
Any person, firm, corporation or association
now organized and existing or doing any such
business in this State, and embodying the word
"Co-operative" as part of its corporate or other
business name or title, and which is not organ-
ized in accordance with the provisions of this
Act or those of the Act of August 17, 1920,
must, within six months from the date at which
this Act goes into effect, eliminate the word
"Co-operative" from its said corporate or other
business name or title. Acts 1921, pp. 139, 151.
§ 2928(32). Privileges of associations. — An
association may organize, form, operate, own,
control, have an interest in, own stock of, or be
a member of any other corporation, or corpora-
tions, with or without capital stock, and engaged
in preserving, drying, processing, canning, pack-
ing, storing, handling, shipping, ginning, utiliz-
ing, manufacturing, marketing, or selling of the
agricultural products handled by the association,
or the by-products thereof. If such corpora-
tions are warehousing corporations, they may
issue legal warehouse receipts to the association
or to any other person and such legal warehouse
receipts shall be considered as adequate collat-
eral to the extent of the current value of the
commodity represented thereby. In case such
warehouse is licensed or licensed and bonded
under the laws of this State or the United
States, its warehouse receipts shall not be chal-
lenged or discriminated against because of own-
ership or control, wholly or in part, by the as-
sociation. Acts 1921, pp. 139, 151.
§ 2928(33). Agreements among associations.
— Any association may, upon resolution adopted
by its Board of Directors, enter into all neces-
sary and proper contracts and agreements, and
make all necessary and proper stipulations,
agreements and contracts and arrangements
with any other co-operative corporation, associa-
tion or associations, formed in this or in any
other State, for the co-operative and more eco-
nomical carrying on of its business, or any part
or parts thereof. Any two or more associations
may, by agreement between them, unite in em-
ploying and using or may separately employ and
use the same methods, means and agencies for
carrying on and conducting their respective busi-
ness. Acts 1921, pp. 139, 152.
§ 2928(34). Admission of associations. — Any
corporation or association organized under any
statute of this or any other State may by major-
ity vote of its stockholders or members, be
brought under the provisions of this Act by lim-
iting its membership to the classes mentioned in
this Act and adopting the other restrictions pro-
vided herein; and securing a charter, if it has
not done so already, from the judge, or the Su-
perior Court, of the circuit in which such asso-
[741]
*928(35)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(46)
ciation has or is to have its principal office and
place of business, which charter shall be re-
corded, as are charters of other corporations cre-
ated by Superior Courts, or the judges thereof;
and such corporations shall thereby become en-
titled to all the privileges and immunities, and
subject to all the restrictions contained in this
Act. Acts 1921, pp. 139, 152; 1925, pp. 150, 151.
§ 2928(35). Associations not deemed illegal.
— No association organized hereunder shall be
deemed to be a combination in restraint of trade
or an illegal monopoly; or an attempt to lessen
competition or fix prices arbitrarily; nor shall
the marketing contracts or agreements between
the associations and its members or any agree-
ments authorized in this Act be considered ille-
gal or in restraint of trade. Acts 1921, pp. 139,
153,
See editor's note under § 2928 (13).
§ 2928(36). Effect of partial invalidity.— If any
section of this Act shall be declared unconstitu-
tional for any reason, the remainder of the Act
shall not be affected thereby. Acts 1921, pp.
139, 153.
§ 2928(37). General corporation laws appli-
cable.— The provisions of the General Corpora-
tion laws of this State, and all powers and rights
thereunder, shall apply to the associations or-
ganized hereunder except where such provisions
are in conflict with or inconsistent with the ex-
press provisions of this act. Acts 1921, pp. 139,
153.
§ 2928(38). License. — Each association organ-
ized hereunder shall pay an annual license fee
of Ten Dollars ($10.00), but shall be exempt
from all franchises or license taxes. Acts 1921,
pp. 139, 153.
§ 2928(40). Section 2928(1)-2928(12) not af-
fected.— The provisions of this Act shall in no
way interfere with, or make void, the co-opera-
tive Act or statutes approved August 17, 1920
[§§ 2928(1)-2928(12)], as these affect associa-
tions previously organized, or prevent the for-
mation, organization, and incorporation of asso-
ciations in the future under the said Act of Au-
gust 17, 1920; nor shall the said Act of August
17, 1920, in any way interfere with or make void
the provisions of this Act, as it affects associa-
tions organized hereunder; and from and after
the passage of this Act, articles of incorporation
of co-operative marketing associations shall set
forth specifically under which Act the said asso-
ciation is incorporated, and the Act so specified
shall be the law governing the said association.
Acts 1921, pp. 139, 153.
§ 2928(41). Associations declared valid. —
Whereas the Co-operative Marketing Act of said
State, approved August 15, 1921 [§§ 2928(13)-
2928(40')] provides for the organization of the
associations therein referred to, by filing of ar-
ticles of incorporations "in accordance with the
provisions of the General Corporation law of
this State," and
Whereas there has been some doubt as to the
meaning of said last-quoted expression, but it
was the intention of the Legislature, in using
the same, to provide for the incorporation of
such associations under charters granted by the
Superior Courts, or the judges thereof,
Now, therefore, all such associations as have
been heretofore incorporated under such char-
ters are hereby recognized and declared to be
valid corporations of said State. Acts 1924, pp.
83, 84.
CHAPTER 3.
Sale of Stocks, Bonds, etc. "Blue Sky Law."
§ 2928(42). Law designated.— This Act shall
be known as "The Georgia Securities Law."
Acts 1920, p. 250.
As to the penalty for the violation of this act, see §§ 461
(9), 461 (11), 461 (12), 461 (13) and 461 (14), P. C.
Editor's Note — This act provides that "it shall repeal and
supersede the act approved August 19, 1913, known as the
"Georgia Blue Sky Law."
Act Not Retrospective. — Liability of the maker of a pro-
missory note executed in June in the year of 1920 was not
affected by the provisions of this act which was approved
in August of that year, or by any violation thereof by the
payee. Niemeyer v. Dougan, 31 Ga. App. 99, 119 S. E. 544.
§ 2928(43). Securities commission created. —
There is hereby created, and established a Se-
curities Commission, which shall be composed
of the Secretary of State, who shall be Chair-
man of said Commission; the Attorney-General,
and the Commissioner of Commerce and Labor,
all of whom shall serve upon and perform the
duties of said Commission without additional
compensation; provided, that should any of the
above-named members of said Commission be
or become, directly or indirectly, interested in
any firm or corporation which is a dealer in se-
curities coming within the supervision of said
Commission, then the Governor shall name and
appoint either the Comptroller-General, the Tax
Commissioner or the Commissioner of Agricul-
ture to take the place of the member or mem-
bers of said Commission so interested, and
thereby disqualified, and such appointee shall
serve on said Commission so long as such dis-
qualification shall last. Acts 1920, p. 250.
Power to Make Enforcement Rules. — This act empowers
that commission to make rules and regulations for the en-
forcement of said act, and to require statements as to
financial condition and the manner of selling securities, as
a condition precedent to issuing a license for the sale of the
latter. Motor Finance, etc., Corp. v. Ga. Securities Com-
mission, 158 Ga. 75, 122 S. E\ 782.
§ 2928(44). Examiners, clerks, stenographers,
etc. — The Commission shall have authority to
employ a chief examiner at a salary of not to
exceed three hundred ($300.00) dollars per
month, and such other examiners, clerks and
stenographers, and other employees as the ad-
ministration of its office and affairs may require,
whose salaries shall be fixed by said Commis-
sion, and paid out of the fees collected as herein
provided. The office supplies, printing, and
equipment, and other expenses, and traveling
expenses of the Commission and its examiners,
shall be defrayed out of said fees which are
hereby allocated to defray expenses of the Com-
mission. Acts 1920, pp. 250, 251.
§ 2928(45). Office.— The Commission shall
keep and maintain its office in the office of the
Secretary of State. Acts 1920, pp. 250, 251.
§ 2928(46). Definition of terms. — The words
and phrases used herein shall, unless the context
[ 742]
§ 2928(47)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(49)
otherwise indicates, have the following mean-
ing:
The word "securities" shall include stocks,
bonds, debentures, notes, certificates of partici-
pation, certificates of shares of interest, pre-or-
ganization certificates and subscriptions, certifi-
cates evidencing shares in trust estates or asso-
ciations, and profit sharing certificates.
For the purposes of this Act, the word "se-
curities" shall further include all contracts for
the sale of territorial rights for which a consid-
eration is paid or to be paid, and all contracts
which entitle the purchaser thereof to receive
from the vendor compensation, whether the
same be for services to be performed, for dis-
counts or special rates not afforded the general
public on goods to be purchased; or any other
compensation whatever accruing to the pur-
chaser solely by virtue of the purchase of such
contract.
The word "issuer" shall include every person
and every company, trust, partnership or asso-
ciation incorporated or unincorporated hereto-
fore or hereafter formed for any lawful purpose
and organized under the laws of this State or
any foreign State or country which shall have
issued any security sold or offered for sale to
any person or persons in this State.
The term or- word "dealer" shall be deemed
to include any person, company, trust, partner-
ship or association, incorporated or unincorpo-
rated, selling or disposing of or offering to sell
or dispose of any such securities through agents
or otherwise, or engage in the marketing or quo-
tation of securities either directly or indirectly
or through agents or underwriters, or any stock
promotion scheme whatever. Acts 1920, pp. 250,
251; 1922, pp. 156, 157.
§ 2928(47). License necessary. — Except as
otherwise provided in this Act, no dealer shall,
within this State, dispose or offer to dispose of
any stocks, bonds, debentures, certificates of
participation, or other similar instrument (all
hereinafter termed "securities"), evidencing title
to or interest in property issued or executed by
any private or quasi-public corporation, co-part-
nership, or association (except corporations not
for profit), without first being licensed so to do
as hereinafter provided. Acts 1920, pp. 250, 252.
§ 2928(48). Classes of securities. — For the
purpose of this Act, securities are divided into
four classes, as follows:
(1) Securities, the inherent qualities of which
assure their sale and disposition without the
perpetration of fraud, which shall be known as
securities in Class "A;"
(2) Securities, the inherent qualities of which,
or in the nature of one or of both parties to the
sale thereof, assure the sale and disposition
without the perpetration of fraud, which shall
be known as securities in Class "B;"
(3) Securities based on established incomes
or on assets, the fair market value of which in
the judgment of the commission gives the in-
vestor a reasonable margin of safety shall be
known as securities in Class "C;"
(4) Securities based on prospective incomes
which shall be known as securities in Class "D."
Acts 1920, pp. 250, 252; 1922, pp. 156, 158.
As to the penalty for the violation of this act, see § 46J
(8), (10), P. C.
§ 2928(49). Class "A" defined; act not ap-
plicable.— Securities in class "A" shall comprise:
(1) Those issued or guaranteed by the United
States or any territory or insular possession
thereof or by the District of Columbia, or by
any State or political subdivision or agency
thereof.
(2) Those issued or guaranteed by any for-
eign government with which the United States
is at the time of sale or offer of sale thereof
maintaining diplomatic relations, or by any
State, Province or political subdivision thereof
having the power of taxation or assessment.
(3) Those issued by a National Bank or any
Federal Land Bank or joint stock land bank or
National farm loan association under the provi-
sions of the Federal Farm Loan Act of July 17,
1916, or by the War Finance Corporation, or by
any corporation created by or acting as an in-
strumentality of the Government of the United
States pursuant to authority granted by the
Congress of the United States; provided, that
such corporation shall be subject to supervision
or regulation by the Government of the United
States.
(4) Those issued by any bank or trust com-
pany, or insurance company operating under the
supervision of the Insurance Commissioner of
this State.
(5) Those issued or granted as to principal,
interest, or dividend by a corporation owning or
operating a railroad or any other public service
utility; provided, that such corporation is sub-
ject to regulation or supervision either as to its
rates and charges or as to the issue of its securi-
ties by a public commission, board or officer of
the Government of the United States, or of any
State, territory or insular possession thereof or
of the District of Columbia, or by the Dominion
of Canada or any Province thereof.
(6) Those issued by a corporation organized
exclusively for educational, benevolent, fraternal,
charitable or reformatory purposes, and not for
pecuniary profit.
(7) Those appearing in any list of securities
dealt in on the New York, Chicago or Philadel-
phia stock exchange or other stock exchanges of
like standing to be selected by the Securities
Commission, pursuant to official authorization by
such exchanges, and securities senior to any se-
curities so appearing, whereof the current prices
shall have been quoted from time to time for not
less than one year next preceding the offering
for sale thereof in tabulated market reports pub-
lished as news and not as advertisements in a
daily newspaper of general circulation in this
State.
(8) Bonds or notes secured by a deed to se-
cure debt or first mortgage lien upon real estate
or leasehold where the entire deed or mortgage
together with all the bonds and notes based
thereon are sold or offered for sale to a single
purchaser as a single sale.
(9) Bills or notes evidencing the acquisition
[743]
§ 2928(50)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(54)
of personal property under conditional sale con-
tracts; and, when running for a period of not
more than one year, negotiable promissory notes
given for full value, commercial paper, and bank
acceptances.
(10) Subscriptions to the capital stock of any
company, incorporated or to be incorporated un-
der the laws of this State, made and to be paid
by the organizers thereof, where no commission
or other remuneration is paid or to be paid for
the disposition of such securities.
Securities in class "A" and the sale thereof
shall not be subject to the provisions of this
Act. Acts 1920, pp. 250, 254; 1922, pp. 156, 158.
Sale of Class "A" No Offense. — Where a defendant was
indicted for the sale of securities falling within "Class A"
as denned by the Georgia securities law, such sale con-
stituted no ofrense under said law. Taylor v. State, 160
Ga. 331, 127 S. E. 652.
§ 2928(50). Class "B" defined; act not ap-
plicable.— Securities in class "B" shall comprise:
(1) Those sold by the owner or his repre-
sentative for the owner's account, such sale be-
ing in the nature of an isolated transaction and
not made in the course of repeated and succes-
sive transactions of a similar nature by such
owner, or by such representative, and such
owner or representative not being the under-
writer of such securities.
(2) Increased capital stock, bonds and other
securities of a corporation sold by it to its
stockholders or employees without the payment
of any commission or expense to solicitors,
agents or brokers in connection with the distri-
bution thereof; capital stock, bonds or other se-
curities distributed to the security holders or
other creditors of a corporation in the process of
a bona fide re-organization of such corporation
either in exchange for the securities or claims of
such security holders or creditors or partly for
cash or partly in exchange for the securities or
claims of such security holders or creditors; or
increased capital stock distributed to stockhold-
ers as dividends out of earnings or surplus.
(4) Those sold by or to any National or
State bank or trust company, functioning as a
bank or trust company and not engaged in deal-
ing in securities, or insurance company doing
business in this State under the supervision of
the Insurance Commissioner or any public sink-
ing fund trustees, or to any corporation or any
dealer or broker in securities.
(5) Those sold or offered for sale at any ex-
ecutor's or administrator's sale or at any sale by
a receiver or trustee in insolvency or bankruptcy,
or at a public sale or auction held at an adver-
tised time and place; or sold by or for the ac-
count of a pledge holder or mortgagee selling or
offering for sale or delivery in the ordinary
course of business to liquidate a bona fide debt.
Securities in class "B" when disposed of by
the persons and in the manner provided by this
section, shall not be subject to the provisions of
this Act. Acts 1920, pp. 250, 254; 1922, pp. 156,
160.
§ 2928(51). Class "C" defined.— Securities in
Class "C" shall comprise:
Those issued by a person, corporation, firm,
trust, partnership, or association owning a prop-
[7
erty, business or industry, which has been in
continuous operation not less than two years
and which has shown net profits, exclusive of all
prior charges, as follows:
(1) In the case of interest bearing securities
not less than one and one-half times the annual
interest charge upon all outstanding interest
bearing obligations;
(2) In the case of preferred stock not less
than one and one-half times the annual dividend
on such preferred stock;
(3) In the case of common stock not less
than three per cent, per annum upon such com-
mon stock.
Provided, however, that nothing in this section
shall be construed so as to prohibit the Securi-
ties Commission in its discretion from licensing
in class "C" securities which are unable to meet
the foregoing requirements where it is conclu-
sively shown that the purchaser would be un-
dergoing no greater risk than he would in the
purchase of securities meeting said requirements.
Acts 1920, pp. 250, 255; 1922, pp. 162, 163.
As to the penalty for the violation of this section, see P.
C, §§ 461 (8), 461 (10).
§ 2928(52). Conditions for sale of Class *'C."
— Securities in Class "C" may be disposed of,
sold, or offered for sale, upon compliance with
the following conditions, and not otherwise:
A statement shall be filed in the office of the
Securities Commission:
(1) Describing the evidences of indebtedness,
preferred stock or common stock intended to be
offered or sold;
(2) Stating the law under which and the time
when the issuer was organized;
(3) Giving a detailed statement of the assets
and liabilities of such issues, and income or
profit and loss statement, and giving an analysis
of surplus account;
(4) Giving the names and addresses of its
principal officers and trustees;
(5) Giving pertinent and necessary facts and
data and information establishing that the secu-
rities to be offered are securities in Class "C."
Such statement shall be accompanied by a
filing fee of five ($5.00) dollars, and shall be
verified by the oath of not less than two credible
persons having knowledge of the facts. Acts
1920, pp. 250, 256.
§ 2928(53). Class "D."— All securities other
than those falling within Classes "A," "B," and
"C," respectively, shall be known as securities
in Class "D." Acts 1920, pp. 250, 256.
As to the penalty for the violation of this section, see P.
C, § 461 (8).
§ 2928(54). Conditions for sale of Class "D."
— No securities in Class "D" shall be sold or
offered for sale until there shall have been filed
in the office of the Commission, statements and
documents as follows:
(1) A description and amount of the securi-
ties intended to be offered for sale;
(2) If the insurer is a corporation, a certified
copy of the charter or articles of incorporation
and by-laws;
44 ]
§ 2928(54)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(55)
(3) If the issuer is a firm, trust, partnership,
or unincorporated association, a copy of the ar-
ticles of partnership, association or trust agree-
ment;
(4) The names, addresses and prior occupa-
tions during a period of not less than eight
years prior to filing such statement (giving de-
tails as to time, place and address of employer,
and reasons for discontinuance of employment)
of the officers, directors, or trustees of the is-
suer, if it be a corporation, or of the persons
composing the issuer, if the issuer be a non-in-
corporated association, together with the names
and addresses of all agents or salesmen desig-
nated to represent the issuer in this State;
(5) Location of the issuer's principal office
and of his principal office in this State, if any;
(6) A description of the nature of the indus-
try engaged in or intended to engage in and the
approximate time when such industry was or
will be established;
(7) An inventory and appraisement of the
assets of the issuer;
(8) A statement in detail of the gross in-
come of the issuer and the source or sources
thereof and of its operating and other expenses
for a period of twelve (12) months prior to the
date of filing such statement, or for the period
of the existence of the issuer if less than two (2)
years prior to the date of filing;
(9) A copy of the most recent balance sheet
of the issuer, showing the financial condition of
the issuer at a date not more than thirty (30)
days prior to the date of filing, and giving an
analysis of surplus account from inception of
such issuer;
(10) A copy of the mortgage, trust deed, in-
denture or writing securing these securities, or
whereunder the same are issued, if any such in-
struments there be.
(11) A copy of the form of the securities in-
tended to be offered;
(12) A copy of any and all subscription
blanks to be used in the sale thereof.
(13) A statement as to the manner in which
the securities are to be offered and sold;
(14) If the securities be intended to be of-
fered and sold by the issuer through solicitors,
agents or brokers, an irrevocable contract exe-
cuted by each such solicitor, agent, or broker,
authorized to offer or sell such securities by or
on behalf of the issuer to the effect that the is-
suer will receive in cash not less than seventy-
five (75) per cent of the proceeds of each sale
of the securities without deduction for any com-
mission or expenses, directly or indirectly, and
without liability to pay any sum whatsoever as
commission or expenses for any services in and
about such sales;
(15) If the securities shall have been or be
intended to be sold to any dealer, solicitor,
agent or broker and intended to be by such
dealer, solicitor, agent or broker, sold to the
public for their own account, a statement veri-
fied under oath, establishing that the price paid
to the issuer was or will be without any fixed or
contingent right in the issuer to demand or re-
ceive any additional sum on account of such se-
curities or sale thereof;
(16) Such other facts relative to such securi-
ties and the sale thereof as the Commission
shall prescribe.
Such statements and accounts shall be accom-
panied by a filing fee of five ($5.00) dollars, and
shall be verified by the oath of not less than two
of the officers of the issuer, if the issuer be a
corporation, or by not less than two members of
a firm, trust, partnership or association, if the is-
suer be not incorporated. The Commission may
require further and additonal verification under
the oaths of other persons. Acts 1920, pp. 250,
256.
Failure of Corporation to Comply Valid Defense. — Where
an action was brought by a corporation on a subscription
for its stock, designated as securities in Class "D," it was
a valid defense that the corporation, at the time of taking
the subscription, had not complied with the provisions of
this section, as to the filing of certain statements with the
securities commission, notwithstanding a license had been
applied for and obtained from the commission. Witt v.
Trustees Loan, etc., Co., 33 Ga. App. 802, 127 S. E. 810.
§ 2928(55). Action arising on sales; non-resi-
dent applicants; attorney; service of process. —
The applicant, if not a resident of, or was not
organized under the laws of this State, shall at
the same time, and before any license shall is-
sue, file with the Commission a duly executed
written instrument, irrevocable, consenting that
any action brought against such applicant, aris-
ing out of and founded upon the sale or disposal
of such securities by him or his agents may be
brought in any county in the State where such
securities were sold; and shall at the same time,
when the applicant is not a resident of, or was
not organized under, the laws of this State, file
with said Commission a written instrument as
power of attorney, duly signed and sealed, ap-
pointing and authorizing some person, who shall
be a resident of this State, to acknowledge or
receive service of process, and upon whom proc-
ess may be served, for and in behalf of such ap-
plicant, in all proceedings that may be instituted
against such applicant in any Court of this State,
or any Court of the United States in this State,
and consennting [consenting] that service of proc-
ess upon any agent or attorney appointed under the
provisions of this section shall be taken and held to
be as valid as if served upon applicant, and such in-
strument shall further provide that the authority
of such attorney shall continue until revocation
of his appointment is made by such applicant
by filing a similar instrument with said Com-
missioner, whereby another person shall be ap-
pointed as such attorney.
If any attorney so appointed shall absent him-
self from this State, or his usual place of busi-
ness or abode, as designated by the applicant, or
shall secrete himself so that process may not be
served upon him, or shall have become disquali-
fied from any cause whatsoever, or shall die, the
Commission shall immediately appoint an attor-
ney for service for such applicant or licensee, oi
which appointment notice in writing shall be im-
mediately given by the Commission to such ap-
pointee, and also be sent the applicant or licen-
see by registered mail, or to its general agent or
manager, which appointment shall be as valid
as if made by the applicant or licensee, and shall
continue in force until such absent agent or at-
[745]
§ 2928(56)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW
§ 2928(58)
torney shall return and give to said Commis-
sion written notice thereof, or until the appli-
cant or licensee shall have made another ap-
pointment in the manner above prescribed.
Service of process as aforesaid, issued by any
such Court as aforesaid, upon any such attorney
appointed by the applicant or licensee, or by the
Commission, shall be valid and binding, and be
deemed personal service upon such applicant or
licensee so long as it shall have any obligations
or liabilities outstanding in this State, although
such applicant or licensee may have withdrawn,
been excluded from, or ceased to do business in
this State. If any applicant shall fail, neglect or
refuse to appoint and maintain within this State
such attorney or agent, it shall forfeit the right
to do or continue business in this State. Acts
1920, pp. 250, 258.
§ 2928(56). Dealers' statements. — Every
dealer not the issuer engaged in the business of
buying and selling securities as denned in sec-
tion 2928(46), whether as owner, underwriter or
broker, and every dealer in securities based upon
real estate mortgages shall file with the Com-
mission statements and documents as follows:
(1) Giving address of applicant, principal of-
fice and branch office in Georgia, if any.
(2) If applicant is a corporation, names and
addresses of officers and directors and a certified
copy of articles of incorporation and by laws; if
a co-partnership, names and addresses of active
partners.
(3) Detailed account of the character of se-
curities dealt in by applicant with estimated pro-
portion of the whole falling within classes "A,"
"B," "C" and "D."
(4) If applicant is a subsidiary of or con-
nected with any other corporation, firm or busi-
ness, a detailed showing of the relationship or
connection with such corporation, firm or busi-
ness.
(5) Three references, one of which shall be
a bank with which applicant has an account;
and such other data as applicant may deem nec-
essary to a complete showing as to his good
character, business qualifications and claim to
public confidence.
Such statement shall be accompanied by a
filing fee of five ($5.00) dollars and shall be veri-
fied on oath of applicant, if an individual; or by
two of the partners, if a partnership; or by two
of the officers, if a company or unincorporated
association. Acts 1922, pp. 156, 162.
§ 2928(57). Licensing; right to revoke; ex-
emptions; non-resident applicants; half fee,
when chargeable. — If the Commission be satis-
fied with the good repute in business of such ap-
plicant, it shall, on the payment of a fee of fifty
($50.00) dollars renewable annually on the first
of January of each year on a showing made that
all of the provisions of this Act and the regula-
tions of the Commission have been complied
with, register such applicant as a licensed dealer
or broker in securities, and shall require of such
licensed dealer or broker no additional fees or
statements evidencing the nature and character
of the securities offered for sale by him, except,
in the case of securities in class "C," notice of
[7
his intention so to do, followed within such time
as may be prescribed by the Commission, by a
brief statement under oath showing that the se-
curity to be offered is in said class, and in the
case of securities based on real estate mort-
gages, proof of the value of the real estate mort-
gaged and a sworn opinion by a reputable attor-
ney supporting the title thereto; and such dealer
or broker will not be required for himself or the
issuer to file separate applications for each issue
of securities in class "C" sold or dealt in by
him:
Provided, however, that this section shall not
be construed as limiting or curtailing the right
of the Commission to refuse to grant or revoke
a license for sale of any securities coming within
the provisions of this Act; and
Provided further, that the exemptions of this
section shall not apply to securities in class "C"
or to notes or bonds based upon real estate
mortgages, where the Commission has good
cause to believe that fuller investigation is nec-
essary; nor to any securities whatever in class
"D," in all of which cases detailed statements
must be filed and the license fee paid for each
security as elsewhere stipulated in this Act for
issuers.
Non-resident applicants having no branch of-
fice in Georgia, shall before a license can issue,
execute the power of attorney required in section
2928(55), but it shall not be necessary for
each issuer of securities offered by licensed deal-
ers to execute such power of attorney.
If application for license is made after " the
thirtieth of June of any year, one-half of the an-
nual fee shall be charged. Acts 1922, pp. 156,
163.
§ 2928(58). License; fees. — If the Commission
be satisfied with the showing made in the applica-
tion filed by or in behalf of any issuer and with its
investigation thereof, it shall register such appli-
cant as a licensed dealer in such security, said li-
cense to be renewable annually as hereinafter
provided in the Act, upon the payment of the fol-
lowing fees:
For permission to offer securities not exceeding
twenty-five thousand ($25,000) dollars, twenty-
ifive ($25.00) dollars; in amounts greater than
twenty-five thousand ($25,000) dollars and not ex-
ceeding one hundred, thousand ($100,000) dollars,
fifty ($50.00) dollars; in amount greater than one
hundred thousand ($100,000) dollars and not ex-
ceeding two hundred thousand ($200,000) dollars,
one hundred ($100.00) dollars; in amounts greater
than two hundred thousand ($200,000) dollars and
not exceeding three hundred thousand ($300,000)
dollars, one hundred and fifty ($150.00) dollars;
in amounts greater than three hundred thousand
($300,000) dollars and not exceeding five hun-
dred thousand ($500,000) dollars, two hundred
($200.00) dollars; in amounts greater than five
hundred thousand ($500,000) dollars and not ex-
ceeding one million ($1,000,000) dollars, two
hundred and fifty ($250.00) dollars; in amounts
greater than one million ($1,000,000) dollars,
three hundred ($300.00) dollars.
Such license shall be taken out at the begin-
ning of each calendar year, but may be issued at
any time for the remainder of such year, and in
46 ]
§ 2928(59)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(63
such case the annual fees shall be reduced as fol-
lows for each expired calendar month:
For fees of twenty-five ($25.00) dollars, two
($2.00) dollars; for fees of fifty ($50.00) dollars,
four ($4.00) dollars; for fees of one hundred
($100.00) dollars, eight ($8.00) dollars; for fees
of one hundred and fifty ($150.00) dollars,
twelve ($12.00) dollars; for fees of two hundred
($200.00) dollars, sixteen ($16.00) dollars; for
fees of two hundred and fifty ($250.00) dollars,
twenty ($20.00) dollars; for fees of three hun-
dred ($300.00) dollars, twenty-four ($24.00) dol-
lars; provided, however, that in no case the fee
charged be l.ess than ten ($10.00) dollars. AH
renewals shall be made as of the first day of
January of each calendar year upon proper ap-
plication therefor, filed not less than twenty (20)
days nor more than sixty (60) days next preced-
ing such date.
This and the next preceding section shall not
apply to issuers of or dealers in securities who
have obtained their licenses for the calendar year
of the adoption of this Act until the expiration
or revocation of said license. Acts 1920, pp. 250,
260; 1922, pp. 156, 164.
§ 2928(59). Agents and employees. — On such
showing of good character as the Commission
may require, it.shall license agents of issuers of
securities and of dealers and ibrokers therein on
written application of their principals. Such
agents shall pay a fee of ten ($10.00) dollars
each of which five ($5.00) dollars shall be for
registration and five ($5.00) dollars for a copy
of the license issued to their principals, certified
as such by the Chairman of the Commission,
whose certificate attached to said copy shall bear
the agent's name and address. All agents' li-
censes shall expire at the end of the calendar year
during which they are issued. Employers of
agents shall immediately notify the Commission
when any agent is dismissed or leaves their em-
ployment, giving reasons for change of employ-
ment. Change of employment shall automatic-
ally cancel the license of any agent, but an appli-
cation to the Commission by a new employer
said agent may be registered as the agent of said
new employer without the payment of an addi-
tional registration fee. Acts 1920, pp. 250, 260;
1922, pp. 156, 165.
§ 2928(60). Form and contents of license;
amended licenses. — The printed license for deal-
ers on a form to be prepared by the Commis-
sion shall contain in bold face type the words
"Neither the State of Georgia nor the Securities
Commission assumes any responsibility for
statements made by any licensed dealer, nor
recommends the securities offered by him." Be-
sides a brief description of the securities author-
ized to be sold and a statement of the uses to
which the proceeds shall be applied, the issuers'
licenses shall Ibear at the top in bold face type
the following language: "License for the sale of
securities in class 'C (or class 'D' as the case
may be) under the Georgia Securities Law.
Neither the State of Georgia nor the Securities
Commission assumes any responsibility for any
statement contained herein, or recommends the
securities described below."
On the petition of any licensee, with such ex-
hibits attached thereto as may be pertinent, veri-
fied in the manner required of exhibits attached
to the original statement, the Commission may
take up the original license and issue in lieu
thereof an amended license and a fee of $10 shall
be paid for such amended license and a fee of
$1 each for certified copies thereof to be supplied
agents already qualified under the original li-
cense. Acts 1920, pp. 250, 261; 1922, pp. 156, 166.
§ 2928(61). Revocation and relicensing; prose-
cution.— The Commission may at any time re-
voke any license granted by it or refuse to re-
new the same, upon ascertaining that the licen-
see:
(1) Is of bad repute;
(2) Has violated any provision of this Act; or,
(3) Has engaged in or is about to engage in,
under favor of such license, illegitimate business
or fraudulent transactions.
No dealer whose license has been revoked
shall be re-licensed within six (6) months from
the date of such revocation.
The Commission shall at once lay ibefore the
Solicitor-General of the proper county any evi-
dence which shall come to its knowledge of the
violation of the provisions of this Act, and it
shall be the duty of such Solicitor-General to
prosecute diligently any person or persons named
in the information furnished by the Commission.
Acts 1920, pp. 250, 261.
§ 2928(62). Notice before revocation — At
least five (5) days before revoking or refusing to
grant or renew a license, the Commission shall
send by registered mail to the licensee or appli-
cant, at the address named in the application,
written notice of its intention so to do, specify-
ing therein the reason for such revocation or re-
fusal and giving such applicant an opportunity
to be heard in his or its own behalf. Acts 1920,
pp. 250, 262.
§ 2928(63). Petition to reverse action of commis-
sion; judgment; representation. — Anyone whose li-
cense shall be refused or revoked, or to whom a re-
newal of license may be denied, may file, within
thirty (30) days thereafter, in the Superior Court of
Fulton County, a petition against the Commis-
sion officially as defendant, alleging therein, in
detail, the petitioner's qualifications to be li-
censed and praying for a reversal of the official
action complained of. Upon service of summons
upon said Commission, returnable within ten
(10) days from its date, but otherwise made
as in civil actions, it shall file an answer in
which it shall allege by the way of defense the
grounds previously assigned in its notice to such
applicant or licensee, and such other grounds as
shall, in the meantime, accrue or be discovered.
All allegations of the answer shall be deemed
to stand denied without further pleadings, and
upon application of either party, the cause shall
be advanced and heard without delay. The
Court's decision shall consult only the rights of
the plaintiff and the protection of the public, and
the Commission shall prosecute no proceedings
to obtain a reversal, modification or vacation of
the judgment rendered in favor of the plaintiff
and in such event shall forthwith issue the li-
cense applied for. A judgment sustaining the re-
[ 747 ]
§ 2928(64)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW
§ 2828(67)
fusal of the Commission to grant or renew a li-
cense shall not bar after sixty (60) days a new
application by plaintiff for a license, nor shall a
judgment in favor of the plaintiff prevent the
Commission from thereafter revoking such li-
cense for any proper cause which may thereafter
accrue or be discovered. The Commission shall
in such Court proceedings be represented by the
Attorney-General. Acts 1920, pp. 250, 262.
§ 2928(64). Escrow agreements. — If the appli-
cant's statement as to securities in Class "D"
shall disclose that any of such securities shall
have been or shall be intended to be issued for
any patent right, copyright, trade mark, process
or good will, or for promotion fees or expenses,
or for other intangible assets, the amount and
nature thereof, shall be fully set forth, and se-
curities issued in payment of such patent rights,
copyrights, trade mark, process or good will or
for promotion fees or expenses or for other in-
tangible assets, shall be delivered in escrow to
such bank or trust company as shall be desig-
nated by the Commission under the escrow
agreement that the owners of such securities
shall in case of dissolution or insolvency not par-
ticipate in the assets of the corporation until
after the owners of all other securities have
been paid in full. Such escrow agreements shall
remain in full force until the securities of the is-
suer thereof are qualified under Class "C" hereof.
Acts 1920, pp. 250, 263.
§ 2928(65). Supplemental statements; verifica-
tion.— So long as any security is sold or offered
for sale under the provisions of this Act, such
persons, the issuer, either solicitor or broker,
shall on or before the expiration of each six (6)
month period from the date of filing the original
statements and documents, and oftener if re-
quired by the Commission, file new or supple-
mental statements disclosing:
(1) The amount of securities sold and, in the
case of securities in class "D," the names and ad-
dresses of the parties to whom the same were
sold, the sale price thereof, and the amount of
cash proceeds received therefor by the issuer;
(2) All changes in the financial condition of
the issuer of in its management or property, ac-
companied by a copy of the most recent balance
sheet of the issuer showing the financial condi-
tion of the issuer at a date not more than thirty
(30) days prior to the date of such filing, and
such other facts as the Commission may require.
Such supplemental statement shall be verified
in the same manner as the original statement;
and upon failure or refusal to file such statement
the Commission may revoke the license issued by
it. Acts 1920, pp. 250, 263; 1922, pp. 156, 166.
§ 2928(66). Contents of statements, etc.— Each
financial statement, prospectus, advertisement,
circular and document circulated, published, ex-
hibited or distributed, for the purpose of effect-
ing sales of securities in Class "D" shall contain
the words in bold faced type, "Securities in
Class 'D' under Georgia Securities Law. These
are speculative securities." But it shall be un-
lawful to make any other reference in any such
matter to the fact that the issuer, solicitor, agent
or broker has complied with the provisions of
this Act. All such statements, prospectuses, ad-
vertisements, circulars, and documents, shall al-
so contain a statement of the assets, liabilities,
income and expenses of the issuer, the law under
which the issuer was incorporated or organized,
and the names and addresses of all officers, di-
rectors, or trustees of the issuer or of the owner
of the property constituting the basis of the is-
sue of such securities. A copy of each such fi-
nancial statement, prospectus, advertisement, cir-
cular, and document, so circulated, published, ex-
hibited or distributed shall be filed in the office
of the Commission within five (5) days after the
(first circulation, publication, exhibition or distri-
bution thereof. Acts 1920, pp. 250^ 264.
§ 2928(67). Real estate not located in Georgia.
— No person, partnership or company, unless li-
censed so to do in the manner hereinafter provided,
shall within this State deal in any interest in real
estate not located in Georgia. Each and every
dealer in such real estate shall first be required to
file with the Commission statements and docu-
ments as follows:
(1) Name and address of applicant; state
whether individual, co-partnership, corporation
or unincorporated association; give three refer-
ences as to character and business qualifications.
(2) A description of real estate to be offered
in Georgia, giving applicant's interest therein
and appraisal by a disinterested party of the
value thereof.
(3) Amount paid for such real estate by
owner at time statement is filed, date of his acqui-
sition thereof; certified copy of deed or deeds, to-
gether with exemplified copy of any mortgage or
other encumbrance thereon; certificate of repu-
table attorney or responsible title guaranty com-
pany attesting the validity of the title thereto; and
last returns made for State, county and (in the
case of realty located in an incorporated town)
city taxes.
(4) Detailed account of the manner and terms
on which said real estate is to be offered in
Georgia, whether as timber lands, developed ot
undeveloped farm property, city lots, home sites,
oil or mineral leases, etc.
(5) Such other information and data as the
Commission may require for the prevention of
fraud in the disposal of said real estate.
Such statement shall be accompanied iby a fil-
ing fee of five ($5.00) dollars and shall be verified
by the oath of the individual applicant, if an indi-
vidual; or by two members of a firm or partnership,
if a partnership; or by two officers of a company, if
a company or unincorporated association. When
said statement shall have been approved by the
Commission, such applicant shall be granted a li-
cense to deal in such real estate upon the pay-
ment of a fee of fifty ($50.00) dollars renewable an-
nually on the first day of January of each calen-
dar year. At any time during the year for which
license is granted, a dealer in such real estate
may be authorized to offer for sale additional
tracts of real estate on filing with the Commis-
sion statements and documents regarding such
real estate verified as in the case of the original
statement and accompanied by a fee of ten ($10.-
00) dollars. The same provisions as to registra-
[ 748 ]
§ 8928(68)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(71)
tion and fees for agents offering securities shall
also be applicable to agents of dealers in real es-
tate lying outside of this State.
This section shall apply where the title to such
property is held in the name of a trustee for any
corporation or for any such described person or
company, but it shall not be deemed to prohibit
the disposal of his own property by any owner
or by his representative for the owner's account
in good faith and not for the purpose of avoid-
ing the provisions of this Act, where the trans-
action is not one of repeated transactions of a simi-
lar nature performed as part of the business of
dealing in real estate. Acts 1920, pp. 250, 264;
1922, pp. 156, 167.
§ 2928(68). Preceding section applicable to
certain real estate in Georgia. — The provisions of
the foregoing section shall apply to the sale or
offer for sale or real estate located in Georgia in
the case of oil, gas and mineral leases and of
subdivisions of larger tracts to be offered as city
or suburban lots, or as fractional portions thereof
planted in nuts or fruits commonly known as
orchard units, or as small farms for colonizing
purposes, when said lots or tracts are offered
outside of the county in which the land is located.
Provided, however, that it shall not apply to
the offer of lots of a city or territory suburban
thereto in any . of the counties included in such
city or suburban territory; nor to the offer of
tracts as orchard units or small farms in any of
the counties of the location of the larger tract
subdivided to form such orchard units or farms;
nor to the advertisements of such offers in a
newspaper published in any county in which the
offer or sale is exempt from the provisions of this
Act. Acts 1922, pp. 156, 168.
§ 2928(69). Examinations of issuer of securi-
ties; expenses. — The Commission shall have
power to make or cause to be made such exami-
nations of the issuer of securities within the pro-
visions of this Act, or of the property named in
the next preceding section [§ 2928(67)] at any
time, both before and after the issuance of a
dealer's license, as it may deem advisable. When
in the discretion of the Commission all or any
part of the expense of such examination should
be paid by the applicant, such applicant shall de-
posit with the Commission such sum of money
as the Commission may order, out of which said
sum the Commission shall pay such portions of
the expense of such examinations as it determines
said applicant should pay. The commission shall
render to the applicant an itemized statement of
the expenditure and a proper record thereof shall
be kept. Acts 1920, pp. 250, 265.
Jurisdiction to Examine Affairs After Surrender of Li-
cense.— Where a license has been issued authorizing a cor-
poration to sell designated securities until a specified date,
and the licensee engages in business under authority of
the license, the mere return of the license before expira-
tion will not oust the commission of jurisdiction to conduct
an examination into the affairs of the licensee. Motor
Finance, etc., Corp. v. Ga. Securities Commission, 158 Ga.
75, 122 S. E. 782.
§ 2928(70). Additional liabilities; action on lia-
bility.— In addition to the liability now imposed
by law, any person, company, association, co-
partnership or corporation that 'by written or
printed letter, circular, prospectus, statement,
advertisement or document of any kind, shall of-
fer for subscription or purchase any security, or
receive the profit accruing from the disposal of
securities so advertised shall be liable to any
person, who on the faith of such letter, circular,
prospectus, statement, advertisement or docu-
ment, acquires such security, for the loss or dam-
age sustained by him by reason of any untrue
statement contained therein, unless such person,
company, association, copartnership or corpora-
tion shall establish that he or it has no knowl-
edge or notice of the publication of such adver-
tisement prior to the transaction complained of,
or had just and reasonable grounds to believe
the statement thereof to be true. Whenever any
corporation shall be so liable, the directors there-
of shall also be under like limitations jointly and
severally liable. Any such director, upon the
payment of a judgment so obtained against him,
shall be subrogated to the rights of the plaintiff
against such corporation and shall have the right
of contribution for the payment of such judg-
ment under like limitations against any of his fel-
low directors. Lack of reasonable diligence to
ascertain the facts of such publications or the
falsity of any statement therein contained, shall
be deemed to be knowledge of such publication
and of the falsity of any untrue statement thereof.
Any action based, upon the liability hereby im-
posed, shall be brought within two (2) years
after the acquisition of the security by any per-
son so damaged or after payment of the judg-
ment for which contribution is sought. Acts
1920, pp. 250, 265.
§ 2928(71). Rules and regulations; appeals; in-
vestigation of business; chief examiner.— The
Securities Commission shall have the power
to make such rules and regulations from
time to time as it may deem necessary and proper
for the enforcement of this Act; provided, how-
ever, that any party affected adversely by any
ruling of the Commission shall have the right of
appeal within thirty (30) days thereafter to the
Superior Court of Fulton County.
The Commission shall at such times as it
deems advisaJble and whenever it may have rea-
son to believe that fraud is being or about to be
perpetrated, investigate the business and affairs
of every licensee, and for that purpose shall have
free access to the vaults, books and papers there-
of, and other sources of information with re-
gard to the business of such licensee and whether
it has been transacted in accordance with this
Act. The Commission, in making investigations
may by subpoena compel the attendance of wit-
nesses and the production of books and papers
before it relating to any matter as to which
it has jurisdiction under this Act. Any member
of this Commission or the chief examiner shall
have the power to administer oaths. Such sub-
poena may be issued by any Commissioner or the
chief examiner and shall Ibe served in such man-
ner as the Commission may provide, so long as
the provisions of law relative to service of sub-
poenas in a court of law shall apply to sub-
poenas issued under this Act, in so far as they
are possible. Witnesses, when testifying under
subpoenas from the Commission, shall be allowed
the same fees and expenses as are allowed wit-
[ 749 ]
;••
§ 2928(72)
SALE OF STOCKS, BONDS, ETC., "BLUE SKY LAW"
§ 2928(78)
nesses testifying before the Railroad Commission,
such fees' to be charged against the party at
whose investigation the witness was subpoenaed
or against the funds of the Commission to be
paid out on the order of the Chairman. In case
any person shall willfully fail or refuse to obey
such subpoena, it shall be the duty of the Judge
of the Superior Court of any county, upon ap-
plication of the Commission, to issue an attach-
ment for such witness and compel him to attend
before the Commission or the chief examiner
and give his testimony upon such matters as
shall be lawfully required by the Commission,
and said court shall have the power to punish
for contempt as in other cases of refusal to obey
the process and order of said court.
The Commission shall have the right to dele-
gate to the chief examiner, who shall be its ad-
ministrative officer, such powers and duties as it
may see fit, and the acts of the chief examiner
shall be regarded as the acts of the Commission
when approved by that body. Acts 1920, pp.
250, 266; 1922, pp. 156, 169.
§ 2928(72). Seal; matters withheld from pub-
lic inspection; report. — The Securities Commis-
sion shall have an official seal upon which shall
be engraved the words "Securities Commission
of Georgia," and in addition thereto such design
as the Commission may prescribe. The Com-
mission may prescribe and furnish forms for all
statements and documents and summaries re-
quired by this Act to be filed in its office and
such statements, documents and summaries shall
follow substantially the forms so prescribed.
All statements and documents and all other mat-
ters filed in the office of the Commission under
the provisions of this Act shall at all proper
hours be available for public inspection; pro-
vided, that the Commission may within its dis-
cretion withhold from the public such matters
of a private and confidential nature as may be
required by it of licensees in the administration
of the law and exhibit them to such persons only
as can show that they have a legal right thereto.
The Commission shall, on or before the first
day of June of each year and as often in addi-
tion thereto as it may be required, furnish the
Governor a complete report of the administration
of its office, giving a detailed account of the
number of applicants licensed and rejected, of all
fees collected by it together with a sworn item-
ized statement of the expenditures of the Com-
mission. Acts 1920, pp. 250, 267; 1922, pp. 156,
170.
§ 2928(73). Invalidity of sales or contracts by
one without license. — Every sale or contract of
sale made by a dealer or his agent, or other per-
son, coming within the provisions of this Act,
who has not first secured a license from the Se-
curities Commission, or whose license has been
revoked or has expired, shall be void and may
be rescinded by the purchaser within one year5
but not thereafter.
This Act shall not apply to those corporations
which have, in good faith, qualified and are now
engaged in the sale of its securities under exist-
ing laws until the full amount of its securities it
was authorized to sell under its original permit
from the Secretary of State are sold. Provided,
said corporations file with said Securities Com-
[7
mission on or before January 1, 1921, a written
statement that it intends to avail itself of this
provision and pays the fees as provided in this
Act. Said Commission shall thereupon issue to
said corporation a license or permit in the terms
of its original permit issued by the Secretary of
State. No corporation which received its origi-
nal permit more than two years prior to Janu-
ary 1, 1921, shall be exempted from the opera-
tion of this Act. Acts 1920, pp. 250, 267.
§ 2928(74). No relief from registration and
fee; foreign corporations. — Nothing in this Act
shall be construed to relieve corporations from
making the annual registration now required by
law to be made to the Secretary of State or pay-
ing the fee required for the filing of such report.
This Act shall not be construed to repeal any
law now in force regulating the organization of
corporations in this State or the admission of
any foreign corporation, but the provisions of
this Act shall be construed to be additional to
any provision regulating the organization of a
corporation under the laws of Georgia, or the
admission of a foreign corporation to do busi-
ness in this State. Acts 1920, pp. 250, 268.
§ 2928(75). Fee for copies of license. — For
each copy of license issued by said Commission,
other than original, said Commission shall be
paid the sum of five ($5.00) dollars by the appli-
cant therefor, and each such copy shall be certi-
fied as such by the Chairman of said Commis-
sion. Acts 1920, pp. 250, 268.
§ 2928(76) Certified copy of license.— Each
and every dealer, broker, solicitor, agent or
other person selling or offering for sale any of
the securities coming within the provisions of
this Act shall before selling or offering for sale
any of such securities obtain a certified copy of
the license issued by the Commission authoriz-
ing the sale of such securities, which certified
copy shall contain the name and address of such
dealer, broker, solicitor, agent or other person,
and such dealer, broker, solicitor, agent or other
person shall before selling or offering for sale
any such securities, produce and exhibit to any
and every prospective purchaser such certified
copy of license. Acts 1920, pp. 250, 268.
§ 2928(77). Manner of selling class "D" se-
curities.— It shall be unlawful for any agent,
broker, solicitor, officer, director, or other per-
son to sell or offer for sale any securities in
Class "D" as described in this Act, in any other
manner or form than as specifically set forth in
this Act, and any offer or sale upon any other
terms or conditions other than as set forth in this
Act shall be prima facie evidence that such agent,
broker, solicitor, officer, director, or other per-
son, offered or sold such securities for the pur-
pose of defrauding the purchaser to whom such
securities were offered or sold. Acts 1920, pp.
250, 269.
§ 2928(78). Unlawful sales. — Every sale and
contract of sale made in violation of any of the
provisions of this Act shall be void at the in-
stance of the purchaser at any time within
twelve (12) months from the date of such pur-
chase, or contract of purchase; and the seller of
the securities so sold in violation of any of the
50 1
§ 2928(79)
MARRIAGE, HOW AND BY WHOM CONTRACTED
§ 2929
provisions of this Act, and each and every so-
licitor, agent or broker, of or for such seller,
who shall have knowingly performed any act or
in any way furthered such sale, shall be jointly
and severally liable, upon tender to the seller or
in Court of the securities sold, to the purchaser
for the amount paid, together with his reason-
able attorney's fees in any action brought to re-
cover such amount. Acts 1920, pp. 250, 269.
Failure to Comply — Contract Voidable. — It was held in
Evans v. Brisson, 146 Ga. 278, 91 S. E. 71, and following in
Niemeyer v. Dougan, 31 Ga. App. 99, 119 S. E. 544 that a
note given for payment of stock in a corporation subject to
the provisions of the Blue Sky I,aw of 1913, which was re-
pealed by this section, is not void because of the failure of
the company to comply with the act, but voidable only and
is enforceable in the hands of an innocent purchaser taking
before maturity. This ruling is applicable in favor of
creditors who become such after the sale and purchase of
the stock.
§ 2928(79). Selling without license; injunc-
tion.— Any dealer in securities or issuer of se-
curities in class "C" as defined in this Act, his
agent, broker, solicitor, officer, director, or other
person who shall sell or offer securities for sale
without first having obtained a license so to do
shall be guilty of a misdemeanor and on convic-
,tion therefor shall be punished as prescribed in
section 1065 of the Penal Code of Georgia, 1910.
In addition to the penalty above provided, the
Commission may through the Attorney-General
apply to the Superior Court of the County of
the residence of any dealer for an injunction
against such dealer who shall offer or sell se-
curities without first securing a license so to do
or who shall continue to offer or sell securities
after his license has been revoked or not re-
newed; and the court shall, on proof of the find-
ings presented by the Attorney-General for the
Commission, issue an order declaring the busi-
ness of such dealer to be a public nuisance and
restraining him from further exercise thereof
for such time as the court may deem necessary
and proper. Acts 1922, pp. 156, 171.
§ 2928(80). Exemptions; pleading and proof.
— In any suit, complaint, information, indict-
ment, or other writ or proceeding, civil or crimi-
nal, laid or brought under this Act, it shall not
be necessary to negative any of the exemptions
provided by this Act; and the burden of proof
of any such exemption claimed by the defendant
shall be upon the defendant. Acts 1922, pp. 156,
171.
§ 2928(81). Nonresident applicants. — The
Commission may in its discretion grant the ap-
plication of a licensee of another State having
requirements to be met preliminary to the offer-
ing of securities in said State substantially
equivalent to those of this Act, on the filing by
such applicant of a transcript of the record and
documents filed with such other State together
with a copy of the license issued him where a
license is required, certified as correct by the
proper official of said State, and on the payment
of the necessary fees.
Provided, that said State shall grant the same
privilege to applicants who are Georgia licen-
sees; and provided, further, that an investiga-
tion of such applicant has been made by said
State department within a period of not more
than six months prior to the filing of such ap-
plication with the Georgia Commission. Laws
1922, pp. 156, 172.
§ 2928(82). Effect of partial invalidity.—
Should any Court of this State declare any sec-
tion or clause of this Act unconstitutional or in-
valid for any cause or reason, then such deci-
sion shall- affect only that section or clause so
declared to be unconstitutional or invalid, and
shall not affect any other section, clause or part
of this Act. Acts 1920, pp. 250, 270.
§ 2928(83). Fees under Act of 1913.— The
Secretary of State shall be required and is here-
by directed to deliver to the Securities Commis-
sion as soon as it shall have been formally or-
ganized, all fees collected by him and held in his
office under the provision of the Act approved
August 19, 1913, known as the "Georgia Blue
Sky Law." All receipts given by him or his
predecessors in office to dealers in securities un-
der provision of the aforesaid Act shall expire
on and not until January 1st, 1921; and all deal-
ers in securities under Classes "C" and "D"
must qualify and be licensed under the provi-
sions of this Act. Acts 1920, pp. 250, 271.
As to the penalty for the violation of this act, see § I 461
(9), 461 (11), 461 (12), 461 (13), and 461 (14), P. C.
THIRD TITLE.
* Of Domestic Relations.
CHAPTER 1.
Of Husband and Wife.
For full and comprehensive treatment, see 7 Cum. Dig.
35, 7 Enc. Dig. 121.
ARTICLE 1.
Of Marriage and Divorce.
See 7 Cum. Dig. 35, 7 Enc. Dig. 121, 8 Cum. Dig. 408, 9
Enc. Dig. 188; 4 Cum. Dig. 975, 4 Enc. Dig. 584.
SECTION 1.
Marriage, How and by Whom Contracted.
§ 2929. (§ 2410.) Restraints of marriage. —
Marriage is encouraged by the law, and every
effort to restrain or discourage marriage by con-
tract, condition, limitation, or otherwise, is invalid
and void. Prohibiting marriage to a particular per-
son or persons, or before a certain reasonable age,
or other prudential provisions looking only to the
interest of the person to be benefited, and not in
general restraint of marriage, will be allowed and
held valid.
As to limitation of estates to widow upon her marriage,
see § 3684. As to consent of trustees to marriage, see §
4618.
Termination of Alimony in Event of Re-Marriage. — A
provision for permanent alimony which provides that in
the event the wife should obtain a divorce and should marry
again, or should marry again in the event of the death of
her husband, the alimony should terminate is not violative
of this section and contrary to public policy in that it is
in restraint of marriage. Watson v. Burnley, 150 Ga.
460, 104 S. E. 220.
Marriage After Institution of Breach of Promise Suit-
Attorneys Fees. — The. whole spirit and policy of our law
favors marriage. In an action for breach of promise to
marry, if the plaintiff and defendant are married after the
[751]
I
§ 2930
MARRIAGE, HOW AND BY WHOM CONTRACTED
§ 2935
Jl
institution of the suit, the counsel for plaintiff can not
maintain an action for attorney's fees as this is contrary
to public policy and in restraint of marriage. Harris v.
Tisom, 63 Ga. 629.
Apprenticeship of female not void when she becomes
eighteen years old, as being in restraint of marriage. Dent
v. Cock, 65 Ga. 400, 401.
Provision of deed for an estate to daughter held under
facts of case, not void as being in restraint of marriage.
Graham v. McRae, 147 Ga. 49, 92 S. E. 871.
§ 2930. (§ 2411.) Essentials of marriage. — To
constitute a valid marriage in this State there must
be—
1. Parties able to contract.
See § 2931.
For full treatment of capacity to contract marriage, see
8 Cum. Dig. 409, 9 Enc. Dig. 189.
The law is more regardful of nuptial than of ordinary
contracts, and persons incapable of contracting generally,
may contract marriage. Unlawful marriages are not void
unless so declared. Park v. Barron, 20 Ga. 702.
2. An actual contract.
By the common law and the law of this state a mutual
agreement to be husband and wife, by parties able to con-
tract, followed by cohabitation, is recognized as a valid
marriage. Wynne v. State, 17 Ga. App. 263, 86 S. E. 823;
Askew v. Dupree, 30 Ga. 173; Dillon v. Dillon, 60 Ga. 204,
209. For other cases, see 8 Cum. Dig. 409.
Marriage is in law complete, where parties, able to con-
tract, have actually contracted to be man and wife in the
forms and with the solemnities required by law. Pitts v.
State, 147 Ga. 801, 803, 95 S. E. 706.
3. Consummation according to law.
See § 2936.
§ 2931. (§ 2412.) Who is able to contract— To
be able to contract marriage, a person must be of
sound mind; if a male, at least seventeen years of
age, and if a female, at least fourteen years, and
laboring under neither of the following disabili-
ties, viz. :
1. Previous marriage undissolved.
2. Nearness of relationship by blood or mar-
riage, as hereinafter explained.
3. Impotency. „
See § 2935 and note thereto. See also, 8 Cum. Dig. 409, 9
Enc. Dig. 189.
In General. — In this state, "to be able to contract mar-
riage, a person must be of sound mind; if a male, at least
seventeen years of age, if a female, at least fourteen years,"
and laboring under none of the disabilities pointed out in
this section. Bentley v. Bentley, 149 Ga. 707, 708, 102 S.
E. 21.
Sound Mind. — It is essential to the validity of a mar-
riage in this state that the parties should be of sound
mind; and marriages of persons unable to contract are
void. Bell v. Bennett, 73 Ga. 784. For other cases, see 9
Enc. Dig. 189.
"Where a claim or defense depends upon the question
whether a person was of sound or unsound mind at the
time of the marriage, it is not necessary that there should
have been a decree of nullification in his lifetime; the
question may be made and decided in a suit for dower, dis-
tribution and the like." Bell v. Bennett, 73 Ga. 784, 786.
Infancy. — Any attempt oh the part of a female under
fourteen years of age to contract marriage is void. Crapps
v. Smith, 9 Ga. App. 400, 71 S. E. 501.
Same — Consent.— The marriage of a female minor over
fourteen years of age is valid, under this section, though
the parents may not consent. Gibbs v. Brown, 68 Ga. 803.
Same— Recovery of Alimony. — Under this section, to be
able to contract marriage the person must be, if a male, at
least seventeen years of age. And where a marriage cere-
mony was performed between a person under that age and
a woman, the woman can not recover alimony as there was
no valid marriage between the parties. Morgan v. Mor-
gan, 148 Ga. 625, 97 S. E. 675.
Same — Ratification. — Although this section prescribes the
"consentable age" of parties, if a boy below the age mar-
ries, but after he reaches the consentable age he affirms the
marriage, and there is cohabitation, the marriage will there-
after be valid and binding. Americus Gas, etc., Co. v.
Coleman, 16 Ga. App. 17, 18, 84 S. E. 493. See Editor's note
under § 2935.
Where a plaintiff sues on account of the homicide of her
alleged husband, and proof is made that the ceremony of
marriage was performed between herself and the deceased
when the latter was less than 17 years of age, it must
further appear that after the alleged husband reached the
age of 17 years he nevertheless ratified and confirmed the
marriage by continuing to cohabit with his wife as such,
in order to warrant a recovery in behalf of the alleged
widow. Americus Gas, etc., Co. v. Coleman, 16 Ga. App.
17, 84 S. E. 493; Murchison v. Green, 128 Ga. 339, 57 S.
E. 709.
Previous Marriage. — Where a woman having a living
husband married another man or a husband a living wife
and married another woman, the second marriage is void.
Curlew v. Jones, 146 Ga. 367, 91 S. E- 115; Murchison v.
Green, 128 Ga. 339, 57 S. E. 709. For other cases, see 8.
Cum. Dig. 411.
Knowledge of a former marriage by the innocent party to
the second marriage is not requisite to render void the sec-
ond marriage. Clark v. Cassidy, 62 Ga. 407.
When a marriage has been proved, the relation is pre-
sumed to exist until evidence of its dissolution by divorce
or death, and the party asserting the dissolution must
prove it. Clark v. Cassidy, 62 Ga. 407, 408.
§ 2932. (§ 2413.) Prohibited degrees. — Mar-
riages between persons related by affinity in the
following manner are prohibited, viz. : A man shall
not marry his stepmother, or mother-in-law, or
daughter-in-law, or stepdaughter, or granddaughter
of his wife. A woman shall not marry her corres-
ponding relatives. Marriages within the degrees
prohibited by this section are incestuous.
See 7 Cum. Dig. 243, 7 Enc. Dig. 243. As to punishment
for incestuous marriages, see § 371, Penal Code.
A man who marries the mother of an illegitimate
daughter becomes the step-father of such child within the
meaning of this section. I,ipham v. State, 125 Ga. 52, 53
S. E. 817; Nephew v. State, 5 Ga. App. 841, 63 S. E. 930.
§ 2933. (§ 2414.) Consent. — To constitute an
actual contract of marriage, the parties must be
consenting thereto voluntarily, and without any
fraud practiced upon either. Drunkenness at the
time of marriage, brought about by art or con-
trivance to induce consent, shall be held a fraud.
As to force, menaces or fraud in obtaining the marriage
as grounds for divorce, see § 2945.
§ 2934. (§ 2415.) Marriage brokerage bonds.—
The policy of the law being opposed equally to
restrictions on marriage and to marriages not the
result of free choice, all contracts or bonds made
with a view to trammel or to force marriage are
deemed fraudulent and void.
§ 2935. (§ 2416.) Void marriages. — Marriages
of persons unable to contract, or unwilling to con-
tract, or fraudulently induced to contract, are void. •
The issue of such marriages, before they are an-
nulled and declared void by a competent court, are
legitimate. In the latter two cases, however, a sub-
sequent consent and ratification of the marriage,
freely and voluntarily made, accompanied by co-
habitation as husband and wife, shall render valid
the marriage.
As to legitimation of children, see §§ 3012 et seq. See also
2 Cum. Dig. 689, 2 Enc. Dig. 311. As to previous marriage
as disibility, see § 3931, par. 1 and note thereto.
Unlawful marriages are not void unless declared so.
Park v. Barron, 20 Ga. 702. But see statement of court in
Equitable Life Assur. Soc. v. Paterson, 41 Ga. 338, 364.
Issue of Second Marriage. — Where a wife, after the ab-
sence of her husband for nineteen years, marries again, the
issue of such second marriage" is legitimate. Eubanks v.
Banks, 34 Ga. 407.
Where no criminal prosecution has been instituted against
parties to a bigamous marriage, the issue are not bastard-
ized. Park v. Barron, 20 Ga. 702.
And even where a party to a bigamous marriage is con-
[752]
2936
MARRIAGE, HOW AND BY WHOM CONTRACTED
§ 2938
cted of the offense of bigamy, "the issue of such mar-
age, born before the commencement of any prosecution
r polygamy, shall, notwithstanding the invalidity of
ich marriage, be considered as legitimate. Perkins v.
evy, 158 Ga. 896, 124 S. E. 799.
Ratification.— TEe marriage of a boy in his sixteenth
;ar, although declared by the code to be void in the
'nse of being absolutely void, may nevertheless be rati-
sd and confirmed by continuing, after arriving at the age
seventeen years, to cohabit with his wife as such. Smith
Smith, 84 Ga. 440, 11 S. E- 496; Morgan v. Morgan, 143
a. 625, 97 S. E. 675.
A marriage by a female under the age of fourteen years
ay, notwithstanding its invalidity, be ratified by her af-
r she has reached that age. Powers y. Powers, 138 Ga.
;, 74 S. E. 759; Dunson v. State, 25 Ga. App. 172, 102 S.
. 899.
Same — Editor's Note.— This section enumerates three
asses of marriages. By the express language of the see-
on ratification of marriages in the latter two classes
ilidates the marriages in those classes. Now as to the
:maining classes, namely, marriages by persons unable to
infract .J^see § 2931), it would seem that under the rule
lat "the expression of one thing is the exclusion of an-
;her," that there is no probability that there was any in-
mtion to allow ratification by mere consent and cohabita-
on, if either of the parties were unable to contract at the
me the marriage was celebrated. But this construction
i to be considered in the light of § 1653, of the Code of
$63 which was in restraint of Common Law marriages,
hese new conditions (the restraint of common law mar-
iages) introduced by the code of 1863 were not long, ac-
eptable to the legislature and by an act (Dec. 14, 1863 ;
le common law as to informal marriages was restored-
'he repeal of this restraint in effect, abrogated the pre-
umption of an implied prohibition against validating such
larriages. In Smith v. Smith, 84 Ga. 440, 446, 11 S. E.
?6, the count expre'ssly says that "while the code put an
nplied negative upon the power of ratification except in
he two instances enumerated it failed to negative the
ower in any express terms; and we think the implied
egative underwent an implied repeal by the act of 1863. "
'his holding has been followed in Luke v. Hill, 137 Ga.
59, 73 S. E. 345; Powers v. Powers, 138 Ga. 65, 74 S. E.
59; Americus Gas, etc., Co. v. Coleman, 16 Ga. App. 17,
4 S. E- 493 and by the trend of our decisions since the
Imith case. It would seem that the above state of affairs
lerits the attention of the legislature.
Husband Estopped to Deny. — In a suit by the reputed
rife for alimony, the husband is estopped from denying her
ompetency to contract marriage by reason of race or
olor, if he has in fact married her, lived with her many
'ears as his wife, and reared a family of children by her.
Bell v. Bennett, 73 Ga. 784, 786; Dillon v. Dillon, 60 Ga.
!04, 209.
§ 2936. (§ 2417). Licenses, how granted. —
Carriage licenses shall be granted by the Ordi-
laries, or their deputies, of the several counties
vhere the female to be married resides, if resident
n this State; provided, that if she be a nonresident
)f this State, then by the ordinary of the county in
vhich the ceremony is to be performed; directed
o any Judge, Justice of the Peace, or Minister of
he Gospel, authorizing the marriage of the per-
sons therein named, and requiring such Judge,
[ustice of the Peace, or Minister of the Gospel to
•eturn the said license to the ordinary, with his
:ertificate thereon as to the fact and date of the
narriage, within thirty days after the date of said
narriage, which license with the return thereon
shall be recorded by the ordinary in a book kept
by him for this purpose.
No marriage license shall be granted until the
ordinary or his deputy shall have secured in writ-
ing answers under oath from the contracting par-
ties of either of them to the following questions
concerning each: Name, Residence, City, County,
and State, Age, Relationship, White or Colored.
Previously Married, Divorced, Upon What
Grounds, When and Where, Any Legal Impedi-
ment, Date and Place of Contemplated Marriage,
Parent's Residence, Parent's Nationality; which
answers shall be certified to by the ordinary or his
deputy and recorded on or attached to the mar-
riage license. Acts 1809, Cobb, 282; 1805 Cobb,
282; Acts 1851-2, p. 50; 1924, p. 53.
Editor's Note.— This section was amended by Acts of 1924
(acts 1924, p. 53) by providing that: if the female be a non-
resident of the state, then the license should be issued by
the ordinary of the county in which the ceremony is to be
performed. And further amended by providing that, the
certificate as to the facts and date of the marriage should
be returned within thirty days after date of said marriage.
And still further amended by adding the last paragraph of
the above section as it now appears.
Who May Issue.— No authority is granted by the laws
of this state to any one to grant marriage license except
the ordinary, his deputy or clerk. The duty is not wholly
ministerial, but to these officers is entrusted a public duty
looking to the protection of parents and guardians by mak-
ing proper inquiries as to the age of the female and re-
fusing license for the marriage of females known to them
to be domiciled in another county. Brewer v. Kingsberry,
69 Ga. 754.
Same — Issued in Blank. — For an ordinary to issue mar-
riage licenses in blank to one who is wholly unauthorized
to determine the rights of parties to receive them, is il-
legal, and the ordinary can not recover amounts received
by such person for licenses so disposed of by him, under
a contract, express or implied. Brewer v. Kingsberry, 69
Ga. 754.
Effect of Improper Issuance.— Where license was issued
by the ordinary of a county in which female (who was a
resident of the state) did not reside, while improper and
contrary to this section, this would not in itself render the
marriage under said license illegal. Minshew v. State, 25
Ga. App. 240, 102 S. E. 906.
A marriage may be legal without any license at all. —
Clark v. Cassidy, 64 Ga. 662, 663; Dale v. State, 88 Ga. 552,
556, 15 S. E. 287; Minshew v. State, 25 Ga. App. 240, 102
S. E. 906.
Notwithstanding the statute directs a license to issue in
case of marriage, and inflicts a penalty upon any minister
of the gospel or magistrate who performs the ceremony
without such license; yet in the absence of any positive en-
actment declaring that all marriages not celebrated in the
forms prescribed shall be void, a marriage deliberately and
intentionally entered into — per verbi de presenti — that is, "I
take you to be my wife," and, "I take you to be my hus-
band"— by parties able to contract, is to all intents and
purposes a valid marriage, notwithstanding the parties have
failed to comply with the statutory provisions. Askew v.
Dupree, 30 Ga. 173.
§ 2937. (§ 2418.) Return of marriage banns. —
If any judge, justice, or minister shall connect in
marriage persons whose banns have been pub-
lished, such judge, justice, or minister shall certify
the fact to the ordinary of the county where such
banns were published, who shall record the same
in the same book with marriage licenses.
§ 2938. Notice of application to be posted; con-
sent of parents or guardian. — Immediately upon
receiving application for a license, the ordinary or
his deputy shall post in the ordinary's office a no-
tice giving the names and residences of the parties
applying therefor, and the date of the application.
No license shall be issued earlier than five days
following the date of application for such license,
within which period of five days objections to the
proposed marriage may be entered; provided, that
in case of emergency or extraordinary circum-
stances, the Judge of the Court having probate
jurisdiction may authorize the license to be issued
at any time before the expiration of said five days.
It shall be the duty of the ordinary and his deputy
to inquire as to ages of all persons for whom
marriage licenses are asked, and if there be any
grounds of suspicion that the female is a minor
under [the] age of eighteen years, such ordinary
and his deputy shall refuse to grant the license un-
>
[753]
§ 2939
DIVORCES, HOW OBTAINED
§ 2944
til the written consent of the [parent or guardian]
parents or guardians, if any, controlling such
minor, shall be produced and filed in his office;
and any ordinary who, [by] himself or deputy,
shall fail to post in his office facts pertaining to the
application, or who shall issue a license in viola-
tion of the time provisions, shall knowingly grant
such license without such consent, or without
proper precaution in inquiring [as to] into the
fact of minority, or for the marriage of a female to
his knowledge domiciled in another county, shall
forfeit the sum of $500 for every such act, to be
recovered at the suit of the Clerk of the Superior
Court, and added to the educational fund of the
county. The posting of said notice may be dis-
pensed with in case the parents or guardian of the
female appears in person before the Ordinary and
consents in writing to the issuance of said license.
Acts 1924, pp. 53, 54.
Editor's Note — The amendment of 1924 extended the sec-
tion so as to provide that notice for application of license
should be posted five days before issuance, during which
time objections may be made, by providing for the consum-
mation of marriage within a shorter period of time in cases
of emergency, and by providing a penalty for a failure to
post the notice as required.
The last sentence of this section as herein set out does not
appear in either the amending clause or the caption. This
sentence was added in the re-statement of the section as
amended.
The words inserted in brackets in this section indicate the
form in which they appeared in the section Before it was
amended. The words "the" and "by" were ommitted in the
amended section. The amendment changed "parent or
guardian" from the singular to the plural number. The
words "as to" were used in the place of the word "into"
which immediately follows them. The legislature expressed
no intent in this act to make such changes.
It is to be presumed that this amendment does not affect
the validity of common law marriages which are legal in
this state, because it makes no expressed reference to mar-
riage per verbi de presenti. See note to section 2936. For
a case discussing the validity of common law marriage, see
Askew v. Dupree, 30 Ga. 173.
§ 2939. (§ 2420.) Penalty on person officiating.
—Any judge, justice, or minister who shall join in
marriage any couple without such license, or the
publication of banns, shall forfeit the sum of five
hundred dollars, to be recovered and appropriated
as set forth in the foregoing paragraph.
As to violation as constituting misdemeanor, see P. C„
§ 677. As to what marriages are void, the status of the
issue thereof, and how void marriages may be validated,
see § 2935. As to effect of want of authority in minister
or justice, see § 2942.
§ 2940. (§ 2421.) Jewish marriages. — Upon
request, the ordinary may direct the marriage li-
cense to any Jewish minister, or other person of
any religious society or sect, authorized by the
rules of such society to perform the marriage
ceremony, who shall make return thereon as be-
fore required.
§ 2941. (§ 2422.) Amalgamation prohibited. —
The marriage relation between white persons and
persons of African descent is forever prohibited,
and such marriage shall be null and void.
As to criminal liability of officer or minister issuing li-
cense or marrying persons in contravention of this sec-
tion, see P. C, § 678. As to estoppel of husband to deny
relation, see note to § 2935.
This section is not in conflict with § 6374 which declares
that the social status of citizens shall not be subject to
legislation. See Scott v. State, 39 Ga. 321, for a very able
and comprehensive discussion of this subject, see also ap-
proving the above holding, In re Hobbs, 12 Fed. Cas. 262.
This section is not in conflict with the provision of the
Constitution prohibiting the impairment of the obligation
of a contract. State v. Tutty, 41 Fed. 753.
§ 2942, (§ 2423.) Want of authority in minister
or justice. — A marriage valid in other respects,
and supposed by the parties to be valid, shall not
be affected by want of authority in the minister or
justice to solemnize the same; nor shall such ob-
jection be heard from one party who has fraudu-
lently induced the other to believe that the mar-
riage was legal.
As to validity of marriage without license, see § 2936,
and note thereto.
Where a marriage in this state is in question, proof by
a witness who was present, of a marriage in fact, is suffi-
cient, without evidence as to the authority of the person
officiating. Dale v. State, 88 Ga. 552, 556, 15 S. E. 287;
Murphy v. State, 50 Ga. 150.
§ 2943. (§ 2424.) Marriage in another state. —
All marriages solemnized in another State by par-
ties intending at the time to reside in this State
shall have the same legal consequences and effect
as if solemnized in this State. Parties residing in
this State can not evade any of the provisions of
its laws as to marriage by going into another
State for the solemnization of the marriage cere-
mony.
While the lex loci, as a general rule, governs questions
of marriage, it is subject, in practice, to the great con-
trolling idea, that it will not be enforced, by comity, if it
involves anything immoral, contrary to general policy, or
violative of the conscience of the State called on to give it
effect. Eubanks v. Banks, 34 Ga. 407.
This section was cited in Smith v. Smith, 84 Ga. 440, 11
S. F. 496, and cited and approved in State v. Tutty, 41
Fed. 753.
SECTION 2.
Of Divorces, and How Obtained.
For full treatment, see 4 Cum. Dig. 975, 4 Fnc. Dig. 584.
§ 2944. (§ 2425.) Total and partial, how granted-
— Divorces may be granted by the superior court,
and shall be of two kinds — total, or from bed and
board. The concurrent verdict of two juries, at
different terms of the court, shall be necessary to
a total divorce. A divorce from bed and board may
be granted on the verdict of one jury. Acts 1866,
p. 21; 1880-1, p. 66.
Cross References. — For general treatment of divorce, see
4 Cum. Dig. 975, 4 Fnc. Dig. 584. As to form of verdict
for divorce, see §§ 2957, 2958. As to the venue in divorce
cases, see § 6536.
Editor's Note. — This section was taken from the acts of
1866, p. 21, and amended by acts 1880-1, p. 66. The only
law of divorce in force in Georgia prior to the adoption of
the constitution of 1789 was that branch of the common law
known and distinguished as the ecclesiastical law. But
the constitution of 1789 and various statutes have virtually
repealed the English ecclesiastical and common law on the
subject of divorce. It is the general policy of the law to
look upon divorce with disfavor and the interest of so-
ciety requires that the marriage relation should be sur-
rounded with every safeguard and its severence allowed
only in the manner prescribed and for the causes specified
by law.
Constitutional Restraint. — It must be apparent to the
most careless reader, that the constitution of 1798 is in
restraint of divorce; the wise framers of that instrument
were careful to hinder facility in their procurement. Head
v. Head, 2 Ga. 191, 194.
Necessity for Judicial Determination. — In this state, no
decree can be rendered, separating man and wife, where
there has been a marriage de facto, except under the
statutory divorce laws. Brown v. Westbrook, 27 Ga. 102.
Kinds of Divorce Distinguished. — Divorces are either
such as dissolve a vinculo matrimonii, and set the parties
at liberty, so that they may marry when they please after-
wards, or such as separate a mensa et thoro, from bed and
[754]
2945
DIVORCES, HOW OBTAINED
§ 2945
ard only; in which last case the marriage continues in
rce, so that, if either of them marry, such other mar-
xge is void. Head v. Head, 2 Ga. 191, 205.
Same— Necessity of Instruction.— The judge charged that
their discretion the jury might grant a total or partial
vorce, but did not explain the difference between the
ro. It would be proper to explain the difference as set
rth in this section but in the absence of an appropriate
quest such omission was not sufficient ground for the
ant of a new trial. Zachary v. Zachary, 141 Ga. 404, 81
E. 120.
Proceedings to Obtain.— In this state two concurring ver-
;ts, at separate terms of court, are required in order to
ant a total divorce. If at the first trial the jury find in
vor of the defendant, the case will not proceed to a
rther trial. If they find for the plaintiff on the first
ial, the case will stand upon the docket to be tried by
tother jury at another term, when the issue as to
nether a divorce shall be granted will again be tried and
verdict rendered upon it. In the second trial, if there is
le, the questions of disability of the parties to remarry,
e custody of children if there are children, and the ques-
Dn of alimony, if such questions be raised by the pleadings
id evidence, are for determination. None of the last-
entioned questions are for determination on the first
ial. Anglin v. Anglin, 145 Ga. 822, 90 S. E. 73. See also
wens v. Owens, 157 Ga. 397, 121 S. E. 337; Rorie v. Rorie,
2 Ga. 719, 64 S. E. 1070.
When Dissolution Effective. — It has been held that after
te rendition of two verdicts in favor of a total divorce, it
not indispensable that a judgment declaring the divorce
•anted should be entered in order for the marriage to
; legally dissolved. Rorie v. Rorie, 132 Ga. 719, 723, 64
, E- 1070.
§ 2945. (§ 2426.) Grounds for total divorce. —
he following grounds shall be sufficient to au-
lorize the granting of a total divorce:
Cross References. — For full treatment, see 4 Cum. Dig.
'6, 4 Enc. Dig. 587. As to jurisdiction in divorce cases,
;e §§ 2950, 6538. See also 4 Cum. Dig. 980, 4 Enc. Dig.
>2.
Editor's Note. — This section was taken from the acts of
550, Cobb. 226. Prior to this act grounds of divorce re-
lained as at common law. Head v. Head, 2 Ga. 191. By
lis act the ante-nuptial causes of total divorce recognized
ere as they appear here with two changes, the first
instituting "prohibited degrees" for "levitical degrees"
nd the second by introducing "fraud" as an additional
round. These changes were made in the Code of 1863.
he act of 1850 was probably brought about by the decision
l the Head case, supra, as the effect of the judgment
sndered in that case was to cut off divorces on some of
le grounds on which they had previously been granted
l Georgia; and the purpose of the act was evidently to
xtend the law so as to increase the number of grounds
pon which divorces can be obtained.
Lex Fori Controls. — The grounds of divorce are regulated
y the lex fori. Standridge v. Standridge, 31 Ga. 223.
1. Intermarriage by persons within the pro-
ibited degrees of consanguinity and affinity.
See §§ 2931, 2932.
2. Mental incapacity at the time of the marriage.
Proceedings for Dissolution. — A libel to dissolve the mar-
iage union, on account of mental incapacity, is to be filed
.nd tried, and is subject to all the incidents regulating
livorces, by the statutes of force on that subject. Brown
'. Westbrook, 27 Ga. 102.
A proceeding to declare marriage a nullity, on account
>f the mental incapacity of one of the parties to consent to
he contract, at the time it was entered into, is unknown
o our judiciary system, and is repugnant to the feelings
md policy of our people. Brown v. Westbrook, 27 Ga. 102.
Conclusiveness of Decree.— A husband filed suit for di-
vorce against his wife, a non-resident of the State. The
)etition for divorce alleged the mental incapacity of the
vife at the time of the marriage, unknown to the husband.
Hie wife had both actual and legal notice of the pendency
>f the divorce case, but failed to appear and defend the
same. The wife will not be heard to complain fourteen
rears later that the divorce was procured by fraud. Conklin
v. Conklin, 148 Ga. 640, 98 S. E- 221.
3. Impotency at the time of the marriage.
As the procreation of children is one of the prime ob-
jects of the marriage contract, a natural impotence to ful-
fill its end, existing at the time of marriage, will avoid
it. Head v. Head, 2 Ga. 191, 205.
4. Force, menaces, duress, or fraud, in obtaining
the marriage.
See §§ 2933, 2935.
A man who elects to stop a prosecution for seduction, by
marrying the woman alleged to have been seduced, and
giving bond for her support, pursuant to the Penal Code,
§ 388, can not have the marriage declared void, as procured
by duress. Griffin v. Griffin, 130 Ga. 527, 61 S. E. 16.
Where a woman prior to her marriage falsely and
fraudulently represented to her prospective husband that
he was the father of a child with which she was then preg-
nant, such representation would not be ground for the
grant of a divorce based upon fraud as defined in this
section where the petition for divorce alleges that he mar-
ried her to avoid a prosecution for seduction. Owens v.
Owens, 157 Ga. 397, 121 S. E. 337.
5. Pregnancy of the wife, at the time of the
marriage, unknown to the husband.
As to the allowance of temporary alimony to the wife
where the husband sues for divorce under this section, see
§ 2976.
6. Adultery in either of the parties after mar-
riage.
An act of illicit sexual intercourse committed by a party
to a marriage contract prior to the marriage is not a
ground of divorce in this State. Stanley v. Stanley, 115
Ga. 990, 42 S. E. 374.
The libelant in a divorce case is an incompetent witness
to prove adultery on the part of the respondent. Wool-
folk v. Woolfolk, 53 Ga. 661; Cook v. Cook, 46 Ga. 308.
7. Willful and continued desertion by either of
the parties for the term of three years.
Must Be "Willful."— The desertion must not only have
been continued for three years but must be "willful."
Siniard v. Siniard, 145 Ga. 541, 89 S. E. 517.
Consent. — If the plaintiff "was consenting" to the de-
sertion, the desertion was not a ground for divorce. Word
v. Word, 29 Ga. 281. See § 2949. Phinizy v. Phinizy, 154
Ga. 199, 114 S. E. 185.
Denial of Conjugal Rights. — Within the meaning of this
section, it is desertion by the wife, though she continue to
reside in the matrimonial domicile, for her wilfully, per-
sistently and without justification to deny her husband all
his conjugal rights with the intention of casting him off as
a husband completely and forever. The continuance of
this state of affairs for three years affords cause of divorce
on the grounds of desertion. Whitfield v. Whitfield, 89
Ga. 471, 15 S. E. 543; Pinnebad v. Pinnebad, 134 Ga. 496,
68 S. E. 73.
Parties as Witnesses. — In an action for divorce by the
husband against .his wife alleging willful and continued
desertion of the wife for a term of three years, the husband
is a competent witness; but he could not testify as to any
facts derived by him from the confidential relation of hus-
band and wife. Castello v. Castello, 41 Ga. 613, 614, see
§ 5861.
Evidence. — In a libel for divorce, founded on desertion,
evidence going to show that the desertion was not "will-
ful," or, that the plaintiff was consenting thereto, is ad
missible for the defendant. Word v. Word, 29 Ga. 281.
Sufficiency of Petition. — Under this section, wilful and con-
tinued desertion by either of the parties for the term of three
years will authorize the granting of a total divorce. The
allegations of the petition as set out in the first division of
the opinion, based on the ground of desertion, are suffi-
cient to withstand a demurrer on the ground that the
plaintiff should have alleged in addition that he was de-
nied by the defendant his conjugal rights "with the in-
tention of casting him off as a husband completely and for-
ever." Wilkinson v. Wilkinson, 159 Ga. 332, 125 S. E. 856.
Amendment of Petition to Include Discretionary Ground.
—See notes to § 2946.
8. The conviction of either party for an offense
involving moral turpitude, and under which he or
she is sentenced to imprisonment in the penitenti-
ary for the term of two years or longer. Acts
1850, Cobb, 226.
"There are three essential ingredients in this ground for
divorce; the commission of the offense involving moral
turpitude, the conviction for the same, and a sentence for
[755]
§ 2946
DIVORCES, HOW OBTAINED
§ 2946
a term of two years or longer in the penitentiary." Hollo-
way v. Holloway, 126 Ga. 459, 461, 55 S. E. 191.
The conviction of a married person of voluntary man-
slaughter followed by a sentence of imprisonment in the
penitentiary for a term of two years or longer, gives to
the other party to the marriage a right to a divorce; and
this right is not affected by an executive pardon granted
after the sentence has been imposed. Holloway v. Hollo-
way, 126 Ga. 459, 55 S. E. 191.
§ 2946. (§ 2427.) Discretionary grounds. — In
case of cruel treatment or habitual intoxication by
either party, the jury, in their discretion, may
grant either a total or partial divorce. Acts 1850,
Cobb, 226.
See §§ 2945, 2948. For full treatment, see 4 Cum. Dig.
978, 4 Enc. Dig. 590.
Editor's Note.— In applications for divorces in Georgia
on the ground of cruelty it seems by the weight of au-
thority that the courts are limited to those acts held by
the English ecclesiastical courts to be sufficient. Prior to the
adoption of the act of 1850 the common law prevailed in
this state. By that act the law was changed so as to au-
thorize the jury trying the case to grant a total or partial
divorce on the ground of cruelty, according to the circum-
stances of the case. But there is nothing in the act to
indicate that the legislature intended to enlarge on the con-
struction placed upon this ground by our leading case of
Head v. Head, 2 Ga. 191. It has always been the policy of
the law of this state to refuse divorces when sought for
reasons of convenience or an account of differences of
temperament or petty grievances between man and wife.
Cruel Treatment— Defined.— "Cruel treatment," within the
meaning of this section is the wilful infliction of pain,
bodily or mental, upon the complaining party, such as
reasonably justifies an apprehension of danger to life,
limb, or health. Wilkinson v. Wilkinson, 159 Ga. 332, 125
S. E. 856; Phinizy v. Phinizy, 154 Ga. 199, 114 S. E. 185;
Ford v. Ford, 146 Ga. 164, 91 S. E. 42; Ring v. Ring, 118
Ga. 183, 44 S. E. 861, citing Odom v. Odom, 36 Ga. 286,
approved and followed. Gholston v. Gholston, 31 Ga. 625,
and Myrick v. Myrick, 67 Ga. 771, doubted, criticized, and'
distinguished. For other cases, see 4 Cum. Dig. 978.
In charging upon the subject of cruel treatment the
court should not omit reference to the element of wilful-
ness in the offense against the complaining party, nor fail
to instruct the jury that it must be such as reasonably
justifies the apprehension of the injuries referred to.
Skellie v. Skellie, 152 Ga. 707, 111 S. E. 22.
Intoxication. — It is not, in order to prove "habitual in-
toxication" on the part of the respondent in a libel for di-
vorce, essential to show that he was constantly and con-
tinuously drunk. Fuller v. Fuller, 108 Ga. 256, 33 S. E-
865.
Same — Use of Morphine. — The habitual and intemperate
use of morphine, unaccompanied by any conduct justifying
an apprehension of danger to life, limb, or health, is not
such cruel treatment as the law recognizes as a ground for
divorce, and does not constitute intoxication within the
meaning of this section. Ring v. Ring, 118 Ga. 183, 44 S. E-
861.
Charge of Adultery. — Charging a wife who was under-
going "the change of life," in her presence, with incestuous
adultery with her brother, and these charges producing such
mental pain to the libelant as to cause her to become ill
and to keep her in bed, at times for as long as two weeks
is sufficient to authorize a verdict for total divorce on the
ground of cruel treatment. Miller v. Miller, 139 Ga. 282,
77 S. E. 21.
But it is not cruel treatment to charge a wife with un-
chastity if she has been guilty thereof. Fuller v. Fuller,
108 Ga. 256, 33 S. E. 865.
Kicking one's wife, wounding and bruising her eye, head
and face, is sufficient cruel treatment to justify a divorce.
Ozmore v. Ozmore, 41 Ga. 46. See § 2948.
Turning the wife out of doors, and driving her away, a
houseless and penniless wanderer, in a state of pregnancy,
is such an act or gross cruelty as would authorize a di-
vorce in any court where cruelty is a ground. Myrick v.
Myrick, 67 Ga. 771, 781. But see Ring v. Ring, 118 Ga. 183,
44 S. E. 861, where the holding in the above case is criticized.
Dishonesty on the part of a husband in his dealings with
a third party, not connected with his domestic relations or
his treatment of his wife or the grounds of cruelty alleged
in her petition, should not be brought to the attention of
the jury in the charge, as possibly illustrating the conduct
of the parties in respect to each other, on the issue of
whether or not the plaintiff cruelly treated his wife. Anglin
v. Anglin, 145 Ga. 822, 90 S. E. 73.
Slight disagreements, and words inspired by transitory
temper, were never intended by the statute as cause for
setting aside a marriage contract. Brown v. Brown, 12JM
Ga. 246, 247, 58 S. E. 825.
That a wife brings suit against her husband and recovers
judgment against him for a debt due to her, and that after
separation she sues him for temporary alimony and ob-
tains a judgment in such action, does not constitute cruel
treatment or furnish to the husband any basis for a suit*
for divorce. Pinnebad v. Pinnebad, 134 Ga. 496, 68 S. E. 73.
Refusal to Cohabit. — Mere proof that a wife declined to
cohabit with her husband will not authorize the grant of a
divorce to him on the ground of cruel treatment. Pinne-
bad v. Pinnebad, 134 Ga. 496, 68 S. E- 73. As to refusal to
cohabit and denial of conjugal rights as constituting deser-
tion, see notes to § 2945, par. 7.
Circulating Slanderous Reports. — Unquestionably the cir-
culation of reports of infidelity is such cruelty as would
not only justify a separation, but would sustain an action
for total divorce. Myrick v. Myrick, 67 Ga. 771; Glass v.
Wynn, 76 Ga. 319. This holding was said to be obiter in
Ring v. Ring,. "118 Ga. 183, 44 S. E. 861. Ed. Note.
Mere Austerity of temper, petulance of manners, rude-
ness of language, a want of civil attention, even occasional
sallies of passion, if they do not threaten bodily harm, do
not amount to the cruelty against which the law can re-
lieve. Ring v. Ring, 118 Ga. 183, 185, 44 S. E- 861.
Single Act of Violence. — As a general rule, a single act
of personal violence is not considered cruel treatment, but
two or more such acts alone may furnish ground for di-
vorce. Yet a single act of cruelty may be so severe and
atrocious as to justify a divorce; and a single act of cruel
and inhuman treatment, accompanied by circumstances in-
dicating a probability of a repetition of similar conduct,
will warrant a divorce. Phinizy v. Phinizy, 154 Ga. 199r'
114 S. E. 185.
Where a suit for divorce is based upon a single act of
violence and upon frequent previous outbursts of temper,
the origin of such violence and outbursts of temper, and:
the circumstances attending the same should be fully laid
before the jury, and it should be made to appear that the
wife was at fault and the husband did not provoke the
same. Phinizy v. Phinizy, 154 Ga. 199, 114 S. E. 185.
Amendment of Petition to Include Discretionary Ground.
— A petition for divorce, on the statutory ground of three
years continuous desertion, can be amended before the first
verdict by adding thereto a discretionary ground based on
cruel treatment perpetrated before the suit was filed.
Zachary v. Zachary, 141 Ga. 404, 81 S. E. 120; Phinizy v..
Phinizy, 154 Ga. 199, 114 S. E. 185.
But in Ring v. Ring, 112 Ga. 854, 38 S. E. 330, it was held
that a petition for divorce on the ground of habitual in-
toxication can not be amended by adding thereto the ground
of cruel treatment, . although the facts alleged to constitute
such treatment are substantially the same as those sett
forth in the original petition.
However, Judge Atkinson in Zachary v. Zachary, supra,
states: The case of Ring v. Ring, 112 Ga. 854, 38 S. E-
330, was decided by four Justices, and is not controlling in
so far as it may conflict with the ruling above announced.
And this decision was approved in Phinizy v. Phinizy, 154
Ga. 199, 114 S. E. 185.
Jury Discretion. — It is discretionary with the jury, in
determining whether the plaintiff is entitled to a divorce,
and also to grant a divorce a vinculo matrimonii or a di-
vorce a mensa et thoro. And their discretion will not be
interfered with unless palpably abusive. Camp v. Camp,
141 Ga. 407, 81 S. E. 128; Pedrick v. Pedrick, 134 Ga. 662,
68 S. E. 515; Wolf v. Wolf, 121 Ga. 113, 48 S. E. 691. See
also, Ford v. Ford, 146 Ga. 164, 91 S. E- 42.
Same — Duty of Court to Charge. — Where a suit for di-
vorce was predicated on the ground of cruel treatment, if
there was evidence authorizing the submission of the issue
on that subject to the jury, the court should, even with-
out request, have instructed them as to their discretionary
power to grant a total or partial divorce, if from the evi-
dence they should find in favor of the plaintiff. Anglin v.
Anglin, 145 Ga. 822, 90 S. E- 73.
Cruelty a Question of Law. — What constitutes cruel treat-
ment within the meaning of this section is a question of
law for the court. Brown v. Brown, 129 Ga. 246, 58 S. E-
825. Gholston v. Gholston, 31 Ga. 625, 628.
As to sufficiency of evidence to support a verdict for:
plaintiff in an action for cruel treatment, see Gordon v.
Gordon, 156 Ga. 106, 118 S. E. 643; Zeigler v. Zeigler, 149
Ga. 508, 101 S. E- 183; Phinizy v. Phinizy, 154 Ga. 199, 114
S. E. 185; Black v. Black, 149 Ga. 506, 101 S. E- 182; Ring
[ 756 1
§ 2947
DIVORCES, HOW OBTAINED
§ 2951
v. Ring, 118 Ga. 183, 44 S. E. 861; Brown v. Brown, 129 Ga.
246, 247, 58 S. E. 825.
§ 2947. (§ 2428.) Grounds for partial divorce. —
Divorces from bed and board may be granted on
any ground which was held sufficient in the
English courts prior to May 4th, 1784. Acts
1850, Cobb, 226.
§ 2948. (§ 2429.) Condonation, collusion, etc. —
[f the adultery, desertion, cruel treatment, or in-
oxication complained of shall have been occa-
sioned by the collusion of the parties, and with the
ntention of causing a divorce, or if the party com-
)laining was consenting thereto, or if both parties
lave been guilty of like conduct, or if there has
>een a voluntary condonation and cohabitation
iubsequently to the acts complained of, and with
lotice thereof, then no divorce shall be granted;
tnd in all cases, the party sued may- plead in de-
ense the conduct of the party suing, and the jury
hay, on examination of the whole case, refuse a
livorce. Acts 1850, Cobb, 226.
For full treatment, see 4 Cum. Dig. 983, 4 Enc. Dig. 595.
Condonation Defined and Considered Generally. — Condona
ion is forgiveness, either express or implied, by a husband
)f his wife, or by a wife of her husband, for a breach of
narital duty, with an implied condition that the offense
ihall not be repeated, and condonation is more readily pre-
sumed against the husband than the wife. Phinizy v.
Phinizy, 154 Ga. 199, 114 S. E. 185; Odom v. Odom, 36 Ga.
!86.
And if there is no breach of the condition after condona -
ion and cohabitation, the forgiveness stands as complete
md absolute. Condonation is not revocable at will. Davis
I Davis, 134 Ga. 804, 68 S. E. 594; Phinizy v. Phinizy,- 154
Ja. 199, 114 S. E. 185.
But condonation will not prevent divorce if that condona-
ion was upon a condition which has been broken by the
lusband. Ozmore v. Ozmore, 41 Ga. 46.
Sexual intercourse is not an essential element of condona -
ion, although it is conclusive evidence thereof. Phinizy v.
Phinizy, 154 Ga. 199, 114 S. E. 185. And where a husband
lept for two nights in the same hotel room with his wife,
le denying and she affirming that there was sexual inter-
:ourse, such conduct on the part of the husband amounted
0 condonation of past offenses of the wife. Phinizy v.
Dhinizy, 154 Ga. 199, 114 S. E. 185.
What Constitutes Condonation. — If a husband is guilty
1 cruel treatment toward his wife, or of adultery, and with
ull knowledge thereof she condones the offense and co-
labits with him, and he is not guilty of any further mis-
onduct, she can not thereafter, at her mere will, desert him.
)avis v. Davis, 134 Ga. 804, 68 S. E. 594. For other cases,
ee 4 Cum. Dig. 983.
If, after an act of cruelty done by the husband to the
vife, she lives with him for many years, and has by him
tumerous children, and would probably still live with him
mt for the interference of a child, the act is condoned by
ter. Buckholts v. Buckholts, 24 Ga. 238.
Where there is undisputed evidence of a voluntary con-
lonation and cohabitation after notice to the plaintiff of
illeged acts tending to show the defendant had committed
tdultery, and the expression by him of belief in her guilt,
md no evidence that adulterous acts, if committed at all,
vere repeated or committed after the condonation, a ver-
tict for the plaintiff is erroneous. Phillips v. Phillips, 91
5a. 551, 17 S. E. 633.
Same — Condonation After First Verdict. — Where pending
i divorce suit by the wife against the husband, or even
tfter the obtaining of the first verdict, they cohabited as
lusband and wife, this operated as a condonation, furnishes
rood reason for a refusal to grant a second verdict. Mc-
leod v. McLeod, 144 Ga. 359, 87 S. E. 286.
What Does Not Constitute Condonation.— The fact that
he plaintiff had a friendly interview with his wife, and
equested her to return home and live with him, does not
imount in law to a condonation of the libel. Johns v.
Fohns, 29 Ga. 718.
Revival of Right.— If after the condonation the conduct
)f the husband is such as to revive the condoned acts and
five her a right to assert them, she is not debarred from
so doing; nor is she prevented from setting up misconduct
>n his part after the condonation, for the consideration of
he jury in determining whether a divorce should be
r 75
granted. Davis v. Davis, 134 Ga. 804, 68 S. E. 594; Ham v.
Ham, 155 Ga. 502, 117 S. E. 383. For other cases, see 4
Cum. Dig. 983.
§ 2949. (§ 2430.) Confessions of party. — The
confessions of a party to acts of adultery or cruel
treatment should be received with great caution,
and if unsupported by corroborating circum-
stances, and made with a view to be evidence in
the cause, should not be deemed sufficient to grant
a divorce.
See 4 Cum. Dig. 987.
When Admissible.— Confessions of parties against them-
selves are admissible in a libel for a divorce, when there
is no suspicion of collusion. Johns v. Johns, 29 Ga. 718.
In a suit for divorce on the ground of adultery, an in-
criminatory admission made by one spouse to the other in
the known presence of a third person is not confidential or
privileged, and the third person in whose presence the ad-
mission was made may testify to such admission on the
trial of a divorce case between the parties. Cocroft v.
Cocroft, 158 Ga. 714, 124 S. E. 346.
Uncorroborated Confessions. — The confession of the re-
spondent as to acts of adultery since his marriage, un-
corroborated by other circumstances, will not authorize the
granting of a divorce. Woolfolk v. Woolfolk, 53 Ga. 661.
See also Head v. Head, 2 Ga. 191, 210.
A total divorce will not be granted on evidence consist-
ing, exclusively, in confessions of the defendant. Buck-
holts v. Buckholts, 24 Ga. 238.
§ 2950. (§ 2431.) Petitioner to be a resident. —
No court in this State shall grant divorce of any
character to any person who has not been a bona
fide resident of the State twelve months before the
filing of the application for divorce. Acts 1893, p.
109.
Cross References.— For full treatment of jurisdiction in
divorce proceedings, see 4 Cum. Dig. 980, 4 Enc. Dig. 592.
As to venue in divorce suits, see § 6538. As to domicile
and residence generally, see §§ 2181 et seq. and the notes
thereto.
Applies to All Kinds of Divorce. — The jurisdictional
averment of twelve months bona fide residence is essential
to every application for divorce of any kind. Griffin v.
Griffin, 130 'Ga. 527, 532, 61 S. E. 16.
Section Does Not Apply to Application for Alimony. —
There is no provision of law extending the requirements of
this section to the application of the wife for alimony and
attorney's fees. Lee v. Lee, 154 Ga. 820, 115 S. E. 493.
Voluntary Submission. — The husband, in filing his suit in
the county of Chatham, voluntarily submitted himself to
the jurisdiction of that court. On the face of his petition
jurisdiction appeared complete. Only when the wife filed
her plea was the jurisdictional fact challenged. On the trial
the husband did not appear. No evidence was admitted.
The court, erroneously because of the sworn plea of the
wife, adjudged the court to be wholly without jurisdiction
in the case for anv purpose. Lee v. Lee, 154 Ga. 820, 115
S. E. 493.
Former Law. — A court has no jurisdiction over a case in
which, neither of the parties is, or have ever been, in the
state, or is a citizen, or a resident of the state, or the
owner of property in the state. House v. House, 25 Ga.
473. This case was decided before the enactment of the
above statute. Ed. Note.
Applied in Lamont v. Lamont, 134 Ga. 523, 68 S. E. 96.
§ 2951. (§ 2432.) Proceedings. — The action
for divorce shall be by petition and process, as in
ordinary suits, filed and served as in other cases,
unless the defendant be non-resident of this State,
when service shall be perfected as prescribed in
this Code in causes' in equity. The same rules of
pleading shall obtain as in other causes at law.
Act 1802, Cobb, 223.
Cross References. — For full treatment, see 4 Cum. Dig.
980, 4 Enc. Dig. 592. As to service of process, see 10 Cum.
Dig. 228, 11 Enc. Dig. 502. As to service on non-residents,
see § 5553. As to deposit of cost required in divorce cases,
see § 5986.
Parties. — An infant married woman may maintain an ac-
tion for divorce. Besore v. Besore, 49 Ga. 378, 379.
No divorce can or ought to be bad in any case but
7]
§ 2952
DIVORCES, HOW OBTAINED
§ 2955
through the agency and will of the injured party. Hence
a suit for a total divorce, brought in the name of a luna-
tic wife, by prochein ami, against her husband can not be
maintained. Worthy v. Worthy, 36 Ga. 45. For other
cases, see 4 Enc. Dig. 594.
Service by Publication. — In compliance with this section
the judge of the court in which the suit is pending may
order service to be perfected by publication in the paper in
which the sheriff's advertisements are printed, twice a
month for two months. The published notice shall con-
tain the name of the parties plaintiff and defendant, with a
caption setting forth the court and term and character of
the action, and a notice directed and addressed to the
party defendant, commanding him to be and appear at the
next term of the court, and shall bear test in the name of
the judge and be signed by the clerk of the court. Conklin
v. Conklin, 148 Ga. 640, 645, 98 S. E. 221.
The laws of Georgia recognize the necessity of actual
notice to the defendant of the pendency of the divorce pro-
ceeding, and require such notice to be given, where that is
practicable, by mail, or actual service, not by publication
merely. See §§ 5556, 5557. Joyner v. Joyner, 131 Ga. 217,
223, 62 S. E. 182. •
Same — When Domiciled in This State. — Although the de
fendant may have had business interests outside of the
state, which required much of his time; and although,
when the suit was brought, he may have been absent from
the state for an indefinite length of time, this did not au-
thorize service of the original petition and process upon
him as a non-resident, if he had a legal residence in Georgia
at which service could have been perfected on him. Stall -
ings v. Stallings, 127 Ga. 464, 56 S. E. 469.
Same — Effect of Appearance. — Where a citizen of this
State files a Libel for Divorce against a nonresident de-
fendant, service must be made by publication; and if the
defendant appears by Attorney and without pleading to
the jurisdiction of the Court, files a plea of the general is-
sue, and a special plea to the merits, the jurisdiction of
the Court is complete, and the judgment will be valid and
binding to all intents and purposes whatsoever. Standridge
v. Standridge, 31 Ga. 223.
§ 2952. (§ 2433.) Respondent may ask a di-
vorce, when. — When a libel for divorce is in-
stituted, the respondent may, in his or her plea and
answer, recriminate, and ask a divorce in his or her
favor; and if on the trial the jury believe such
party is entitled to divorce instead of the libelant,
they may so find upon legal proof, so as to avoid
the necessity of a cross-action. Acts 1863-4, p. 45.
Causes. — The true rule, it seems, is to allow the defend-
ant to recriminate for any of the causes which would dis-
solve the contract whether it be eodum dilectum or not.
Johns v. Johns, 29 Ga. 718, 723.
Same — Adultery. — To a libel for divorce, on the ground
of cruelty in the wife, she may recriminate the adultery of
the plaintiff, her husband. Johns v. Johns, 29 Ga. 718.
Competency of Libelant as Witness. — Where to the suit
of the wife the husband files a cross -libel on the ground of
adultery, the wife is competent to testify concerning the
grounds of her libel, but is incompetent to testify to any
fact pertaining to the charge of adultery made in the cross-
libel. Anderson v. Anderson, 140 Ga. 802, 79 S. E- 1124. For
other cases, see 4 Enc. Dig. 599.
Where plaintiff fails to make out a case, respondent may
proceed to introduce evidence to support his allegations for
a divorce under this section. Owen v. Owen, 54 Ga. 526,
527.
§ 2953. (§ 2434.) Libelant can not dismiss,
when. — If one verdict is found in favor of the re-
spondent, the libelant can not dismiss his or her
suit without the consent of the opposite party.
Acts 1863-4, p. 45.
§ 2954. (§ 2435.) Schedule. — In all suits for
divorce, the party applying shall render a schedule,"
on oath, of the property owned or possessed by the
parties at the time of the application — or at the
time of the separation, if the parties have separated
— distinguishing the separate estate of the wife, if
there be any, which shall be filed with the petition,
or pending the suit, under the order of the court.
The jury rendering the final verdict in the cause
may provide permanent alimony for the wife,,
either from the corpus of the estate or otherwise,,
according to the condition of the husband and the
source from which the property came into the
coverture. Act 1806, Cobb, 225; Act 1806, Cobb,
224.
As to general provisions for alimony, see §§ 2975 et seq.
See also 1 Cum. Dig. 390, 1 Enc. Dig. 319.
Editor's Note This and the four following sections were
taken from the acts of 1806, Cobb 224, 225. Under this
statute, up to the adoption of the code of 1863, it was held
that after the payment of the debts the property was sub-
ject to equal division between the children of the parties,
except that the jury might allow either party a part
thereof. But since the adoption of the Code of 1863 the
jury can only give the wife alimony. This change made in
the Code of 1863 was upheld in Odom v. Odom, 36 Ga. 286,
319. See § 2975.
This section is strictly construed, and the effect should
not be extended beyond its terms. Landis v. Sanner, 146
Ga. 606, 91 S. E. 688. See note of this case under § 2956.
The jury have a discretion to award a part of the prop-
erty to each or both of the parties. The term "either,"'
used in this section may mean "each" or "both." Jack-
son v. Stewart, 20 Ga. 120.
A second verdict which finds alimony for the wife and
makes provision for the child is not contrary to law or
void on the ground that the first verdict, being against the
wife, was conclusive against her right to alimony. Brown
v. Brown, 152 Ga. 463, 110 S. E. 234.
What Property Subjected.— The court and jury * trying
and deciding a divorce case under our law, can only dis-
pose of such property as was owned by the husband or the
wife at the time of the application for divorce, or at the
time of the separation of the parties. Cason v. Walton, 62
Ga. 427, 428. But the jury is not confined in the allow-
ance of alimony to the property owned by the husband at
the date of the verdict. The verdict may cover any prop-
erty mentioned in the schedule. Halleman v. Halleman.
65 Ga. 476.
The decree in a divorce suit can, as a judgment in rem,
operate only upon property embraced in the schedule or
described in the decree itself. Russell v.' Rice, 103 Ga. 310,
313, 30 S. E. 37; Williams v. Williams, 94 Ga. 627, 20 S.
E. 108.
When Alimony Disallowed. — Where in a suit for divorce
the verdict of the second jury finds in favor of a total di-
vorce and expressly disallows anything for alimony to the
wife, the husband's property embraced in the schedule filed
with the divorce proceedings remains his property just as
though the jury had disposed of it by awarding it to him.
Burns v. Lewis, 86 Ga. 591, 13 S. E. 123.
Divorces a Mensa et Thoro. — A schedule of property
need not be filed in an application for a partial divorce.
Whitaker v. Strong, 16 Ga. 81, 87.
Rights of Creditors. — The property set forth in the sched-
ule filed at the commencement of the suit does not vest,
on the finding of the jury in favor of the libellant, in the
issue of the marriage, absolutely and unconditionally. The
creditors, if any, have the first claim on the property.
Jackson v. Stewart, 20 Ga. 120.
Ante-Nuptial Agreements. — In a libel for divorce, the
ante-nuptial agreement between the parties is admissible
in evidence, for the purpose of showing the source from
whence the property was derived. Odom v. Odom, 36 Ga.
286.
Injunction, at the wife's instance, will not issue to re-
strain the husband from collecting his choses in action,,
pending a suit for divorce, unless it is obvious that the
fund will be put in peril by coming into his hands. John-
son v. Johnson, 59 Ga. 613.
§ 2955. (§ 2436.) Transfer pending suit. — After
a separation, no transfer by the husband of any of
the property, except bona fide in payment of pre-
existing debts, shall pass the title so as to avoid'
the vesting thereof according to the final verdict of
the jury in the cause.
See 1 Enc. Dig. 331.
Contrary to Public Policy. — This restriction upon the
free alienation of property by the owner is contrary to
public policy, and will not be extended by construction be-
yond the plain intent and meaning of the law. Lamar v.
Jennings, 69 Ga. 392; Russell v. Rice, 103 Ga. 310, 30 S.
E. 37.
. Section Does Not Operate in Favor of Third Parties. —
58 ]
\ 2956
DIVORCES, HOW OBTAINED
§ 2961
Phis section restricts the alienation of property by the hus-
)and after separation, for the purpose of securing alimony
;o the wife when sought by her, and does not operate in
avor of third parties. Lamar v. Jennings, 69 Ga. 392.
Property Not Disposed by Verdict Unaffected. — The re-
itraint on alienation imposed by this section is operative
>nly in so far as it renders the alienation subordinate to
my disposition of the specific property which may be made
ly the jury in the final verdict; and this restraint does not
iffect property not disposed of by the final verdict granting
he divorce. Almand v. Seamans, 89 Ga. 309, 15 S. E. 320.
Property Disposed before Institution of Suit. — This section
onstrued in connection with its cognate sections, does not
estrict a transfer by a husband of his property, made bona
ide and for value, prior to the institution of a divorce suit,
tut is operative only on conveyances by the husband made
luring the pendency of a libel for divorce. Singleton v.
:iose, 130 Ga. 716, 61 S. E. 722.
In case of Partial Divorce, no lien is created on the hus-
and's property until the rendition of the judgment or de-
ree. Whitaker v. Strong, 16 Ga. 81.
When Purchaser Protected — Scheduled Property. — Where
Toperty sold was included in the schedule, the sale not be-
tig in payment of pre-existing debts, it did not vest the
itle in the purchaser so as to prevent the vesting thereof
ti the wife, according to the verdict of the jury. The pur-
haser bought subject to the said verdict, and his want of
ctual notice does not protect him. Venable v. Craig, 44
}a. 437.
Same — Property Not Scheduled. — A conveyance made by
he husband of land not included in the schedule though
xecuted after a separation between his wife and himself
nd While a divorce action is pending, is not affected by
bis section. Russell v. Rice, 103 Ga. 310, 30 S. E. 37;
Coulter v. Lumpkin, 94 Ga. 225, 21 S. E. 461. See also, In
e Westmoreland, 298 Fed. 484; .Singleton v. Close, 130 Ga.
16, 719, 61 S. E- 722, and see 1 Enc. Dig. 331.
Same — Supplies Furnished Wife. — One who furnishes the
rife board and other necessaries after separation and be-
3re provision has been made for her support stands upon
he same plane as any other creditor of the husband and
as no lien which he can assert on property of the husband
old to a bona fide purchaser for value before his claim has
een reduced to judgment. Lamar v. Jennings, 69 Ga. 392.
The mere pendency of a suit for alimony will not disable
he defendant therein from making a bona fide mortgage
r conveyance of unincumbered property over which the
ourt has not taken nor been asked to take any direct
urisdiction in order to administer or secure it for applica-
ion to the claim for alimony, and the mortgagee of such
roperty has priority over a judgment for alimony subs-
equently rendered. Coulter v. Lumpkin, 94 Ga. 225, 21 S.
5. 461.
Judgment Obtained for Pre-Existing Debt. — A valid judg-
lent obtained against the husband during the pendency of
suit for a divorce, founded on a debt contracted before
he separation of the husband and wife, is a good lien upon
>roperty set apart to the wife on the final hearing.
!arithers v. Venable, 52 Ga. 389.
Notice. — When, in a schedule, filed with a libel for di-
orce, there is contained an item of "a city lot in At-
mta, worth $5,000.00." It was held that, as the schedule
lurports to be all the property of the husband, the descrip-
ion is sufficient to put everybody upon notice, if there be,
a fact, but one such lot. Venable v. Craig, 44 Ga. 437.
>ee also, Russell v. Rice, 103 Ga. 310, 30 S. E. 37.
Writ to Restrain. — Equity will, by injunction, prevent the
lusband from alienating his property to defeat alimony, it
leing well established, if others co-operate with him to
lerpetrate such wrong, the same remedy is proper as
gainst them. Gray Bros. v. Gray, 65 Ga. 193, 194.
But injunction should not issue solely because the wife
nay be entitled to have her husband pay her alimony,
/here he is neither attempting nor threatening to sell or
incumber his property, and no other grounds for the is-
uance of the writ is shown. Melvin v. Melvin, 129 Ga.
2, 58 S. E. 474.
§ 2956. (§ 2437.) Verdict of jury. — The ver-
lict of the jury shall specify the kind of divorce
;ranted, and the disposition to be made of the
cheduled property.
Property Subject. — The "disposition to be made of the
schedule property" as used in this section, has reference
mly to property owned by the defendant at the time of
iling of the libel and scheduled as indicated in § 2954.
wandis v. Sanner, 146 Ga. 606, 91 S. E. 688.
Same — Trust Property. — A verdict for a total divorce
does not vest property held in trust for the husband, wife
and children, in the children, although the property was
scheduled, the verdict of the jury being silent as to the
disposition of the property. Barclay v. Waring, 58 Ga. 86.
Wife Takes Fee in Award. — Where by the final verdict
the wife is granted a total divorce with permanent alimony
consisting of specific real estate and negotiable securities
and a stated sum of money, the wife is entitled to a decree
vesting absolute legal title to the property in her without
restrictions. And a decree limiting the estate to her for
life is erroneous. Wise v. Wise, 156 Ga. 459, 119 S. E. 410.
Finality of Decree. — Where after a final verdict a de-
cree has been rendered, dissolving the marital relations be-
tween the parties and awarding alimony for the wife and
stated sums for the support of the children, the decree thus
rendered is final in its nature and passes beyond the dis-
cretionary control of the trial judge, and he has afterwards
no authority either to abrogate it or modify its terms.
Gilbert v. Gilbert, 151 Ga. 520, 107 S. E. 490.
Attorney's Fees.— Where the verdict of the jury grants
a total divorce and permanent alimony to the wife, award-
ing to the wife specific property, the judge is not authorized
to enter a decree on such verdict directing that attorney's
fees be paid out of the property awarded the wife. Wise
v. Wise, 156 Ga. 459, 119 S." E. 410.
§ 2957. (§ 2438.) Verdict for total divorce. —
The form of a verdict in case of a total divorce may
be as follows, to wit: "We, the jury, find that
sufficient proofs have been submitted to our con-
sideration to authorize a total divorce — that is to
say, a divorce a vinculo matrimonii, upon legal
principles, between the parties in this case." Act
1802, Cobb, 224.
§ 2958. (§ 2439.) Verdict for partial divorce. —
In case of a partial divorce, the form of a verdict
may be as follows, to wit: "We, the jury, find that
sufficient proofs have been submitted to our con-
sideration to authorize a partial divorce between
the parties — that is to say, a divorce a mensa
et thoro, upon legal principles. That the plaintiff
shall pay on the day of , to the defend-
ant during her natural life, the sum of dollars,
for the support and maintenance of the issue of
such marriage during their natural lives."
§ 2959. (§ 2440.) No verdict by default. — No
verdict or judgment by default shall ever be taken
in a suit for divorce, but the allegations in the peti-
tion must be established by evidence before the
juries. Acts 1895, p. 46.
See § 5658.
Under this section it is the duty of the court not to per-
mit a verdict for divorce to be taken, unless the evidence
makes a prima facie case showing that the defendant in
the divorce suit was a resident of the county at the time
the suit was filed, and it is the duty of the jury to refuse
a divorce unless this fact is proved by a preponderance of
the testimony. McConnell v. McConnell, 135 Ga. 828, 830,
70 S. E. 647.
§ 2960. (§ 2441.) New trial. — New trials may
be granted from verdicts on applications for di-
vorce, as in other cases.
For full treatment of new trials generally, see 8 Cum.
Dig. 847, 9 Enc. Dig. 574 and see §§ 6078 et seq.
General Verdict. — It is not cause for the grant of a new
trial that the verdict found generally in favor of the libel-
ant for a total divorce, without in express terms referring
to the status or disabilities of the defendant. Miller v.
Miller, 139 Ga. 282, 77 S. E. 21.
First Verdict. — A party to a libel for divorce, who may
be dissatisfied with the first verdict has a legal fight to
move that the verdict be set aside and a new trial granted.
Gholston v. Gholston, 31 Ga. 625. See also, Rorie v. Rorie.
132 Ga. 719, 64 S. E. 1070. And also 4 Cum. Dig. 985.
§ 2961. (§ 2442.) Judgment or decree. — The
verdicts of juries disposing of the property in di-
vorce cases shall be carried into effect by the
[759]
§ 2962
DIVORCES, HOW OBTAINED
§ 2971
courts, by entering up such judgment or decree, or
taking such other steps usual in chancery courts,
as will effectually and fully execute the same.
See § 2956 and note thereto.
The decree should carry the verdict into effect, and not
destroy it. Wise v. Wise, 156 Ga. 459, 119 S. E. 410; Gilbert
v. Gilbert, 151 Ga. 520, 523, 107 S. E. 490.
By the constitution of 1868, a final verdict in favor of a
total divorce was sufficient to dissolve the marriage, though
it was silent as to rights and disabilities, and though no
judgment declaring the marriage dissolved was actually
entered up. Burns v. Lewis, 86 Ga. 591, 13 S. E. 123.
§ 2962. (§ 2443.) Conscientious scruples. — A
juror having conscientious scruples as to granting
divorces is incompetent to serve on such applica-
tions. At the request of the complainant, the
court may inquire of the panel touching such
scruples. Act 1840, Cobb, 225.
§ 2963. (§ 2444.) Effect of total divorce. — A
total divorce annuls the marriage from the time of
its rendition, except it be for a cause rendering the
marriage void originally; but in no case of divorce
shall the issue be rendered bastards, except in
cases of pregnancy of the wife at the time of the
marriage. Acts 1806, p. 225; 1861, p. 62.
For full treatment, see 4 Cum. Dig. 988, 4 Enc. Dig. 601.
As to legitimacy of children, see § 3012.
Upon the dissolution of a marriage by total divorce the
wife ceases to be a member of the husband's family as ef-
fectually as if she were dead. Burns v. Lewis, 86 Ga. 591,
13 S. E. 123.
So on the other hand, upon a divorce vinculo matrimonii
obtained by a wife, the defendant ceases to be her hus-
band and accordingly his marital rights terminate. Barclay
v. Waring, 58 Ga. 86.
§ 2964. (§ 2445.) Disabilities, how determined.
—-When a divorce is granted, the jury rendering
the final verdict shall determine the rights and dis-
abilities, subject to the revision of the court.
See § 6537. As to removal of disabilities, see § 2966.
Where the final verdict renders the husband disable to
remarry, this disability to remarry is no obstacle to remar-
rying the same v/oman. Atlanta v. Anderson, 90 Ga 481
16 S. E. 209.
And where a party remarries the same woman and later
she institutes a libel for a second divorce and the verdict
of the second proceeding relieves the defendant of all
disabilities, this dissolves all ties between the parties and
the husband is free to marry again. Atlanta v. Anderson
90 Ga. 481, 16 S. E. 209.
§ 2965. (§ 2446.) Name changed in divorce
cases, when. — In all divorce cases now pending,
or hereafter brought, the wife may pray in her
pleadings for the restoration of the name which
she bore at the time of her last marriage; and in
the event a total divorce shall be granted to her in
said case, the judgment or decree therein rendered
shall specify and restore to her the names so
prayed for in her pleadings. Acts 1880-1, p. 121.
§ 2966. (§ 2447.) Disabilities, how relieved. —
When any person, laboring under disabilities im-
posed by the granting of a divorce by the courts,
shall desire to be relieved of the same, such
person shall petition the superior court of the
county wherein the divorce was granted, in which
petition there shall be stated the date of the appli-
cation for the divorce, the grounds for the di-
vorce, and the substance of the last verdict, which
petition shall be filed with the clerk of the superior
court of said county, and notice of said application
shall be published, for sixty days before the first
day of the term of the court to which the same is
returnable, in a newspaper wherein the legal
advertisements of the ordinary or sheriff of such
county are published, and where and when the
same is to be heard; and if the divorced person is
in life and resides in the county, such divorced per-
son shall be served personally with a notice of such
application twenty days before the first term of the
court to which the same is returnable. Acts 1872,
p. 14.
§ 2967. (§ 2448.) Application, by whom re-
sisted. — It shall and may be lawful for the di-
vorced person, or any citizen of said county, to*
resist the application; and should no person resist
the same, then the solicitor-general shall represent
the State, with full power to resist the same, as in
ordinary divorce cases. Acts 1872, p. 14.
§ 2968. (§ 2449.) Application, when and how
tried. — Said application shall be tried at the first
term of the court by a jury, selected as juries are
selected for the trial of common-law cases, who
shall hear all the facts, and if, in their judgment,
the interest of the applicant or of society demands
the removal of such disabilities, the jury shall so
find, and the party relieved shall be allowed to con-
tract a second marriage, as though no marriage
had ever existed between the, applicant and the
divorced person. Acts 1872, p. 14; 1878-9, p. 51.
§ 2969. (§ 2450.) Rules for continuances. — All
the statutes and rules in reference to continuances
in other cases in the superior court shall apply to
the applications provided for in the three preced-
ing sections. Acts 1872, p. 14.
For full treatment of continuances generally, see 3 Cum.
Dig. 960, 3 Enc. Dig. 407.
§ 2970. (§ 2451.) Effect of partial divorce. — A
divorce from bed and board authorizes neither party
to marry; and, if a sufficient provision for the main-
tenance of the wife has been made by the verdict of
the jury, the husband shall not be liable for her
future support. The wife shall be a feme sole as to
her earnings and property, as well as liberty, after
a divorce from bed and board. Act 1806, Cobb,
225.
See §§ 2955, 2956 and notes thereto.
§ 2971. (§ 2452.) Custody of children, — In all
cases of divorce granted, the party not in default
shall be entitled to the custody of the minor chil-
dren of the marriage. The court, however, in the
exercise of a sound discretion, may look into all
the circumstances, and, after hearing both parties,
make a different disposition of the children, with-
drawing them from the custody of either or both
parties, and placing them, if necessary, in posses-
sion of guardians appointed by the ordinary. The
court may exercise a similar discretion pending the
libel for divorce.
For full treatment of parent and child generally, see 9
Cum. Dig. 155, 10 Enc. Dig. 54, and see § 3012 et seq.
As to new trials, see § 2960. As to alimony for children
on final trial, see § 2981.
Editor's Note. — This statute confers on the judge a
supervisory control, with respect to the custody of the
children, over the whole divorce proceedings, and in the
exercise of a wise discretion he may award their custody
to the parent in fault or even to strangers, in case a di-
vorce is granted. This discretion, it was said in Miller v.
Wallace, 76 Ga. 479, "must be governed by rule, not by
humor; it must not be arbitrary, vague and fanciful but
legal and regular." It seems that prior to the Acts of
1913 (see § 3022 (1) of this code) the uniform holding was
that a prima facie presumption existed that the custody
[ 760]
\ 2972
DIVORCES, HOW OBTAINED
§ 2972
jf the child should be in the father, but by this act it is
expressly stated that "there shall be no prima facie right
;o the custody of the child or children in the father.
Construed with Section 2980. — This section and § 2980
[relating to support pending suit), being in pari materia,
nust be construed together. Zachry v. Zachry, 140 Ga.
179, 79 S. E- US.
Section Does Not Apply Unless Divorce Granted.— Under
.his section, the court can make a final disposition of chil-
Iren only where divorce is granted. Where the case is
erminated without a divorce being granted to either of
he parties, the court can exercise no such power, though
he attempt to exercise it be made during the term in
vhich the final verdict, refusing a divorce, was rendered.
iCeppel v. Keppel, 92 Ga. 506, 17 S. E. 976.
Exception to Decree Necessary to Review Judge's Dis-
:retion. — Under this section it is the office of the judge,
md not the jury, to determine in whose custody the minor
ihildren of the marriage shall be placed; and where there
s no exception to the decree, the discretion of the judge
n awarding the custody of a child to one of the parents
:an not be brought under review. Johnson v. Johnson, 131
5a. 606, 62 S. E. 1044.
Effect of Former Award. — In cases of final divorce the
■ustody of the children will be awarded to the party not
n default (if approved by the presiding judge), notwith-
itanding their custody may have been given to the other
>arty in a former habeas corpus proceeding. The statutory
lesign seems to be that on the final verdict for divorce the
:ourt shall not be hampered by any former decree or judg-
nent in "habeas corpus case, but that the court will be at
ull liberty in providing for the welfare of the children.
Zachry v. Zachry, 140 Ga. 479, 481, 79 S. E. US.
Same — Decree as Prima Facie Evidence. — A decree in a
livorce suit awarding the child to one of the parents is
)rima facie evidence of the legal right to its custody, but
s not conclusive in habeas corpus proceedings where the
:ircumstances and conditions or unfitness of the parent,
trising since the date of the decree, are involved. If since
hat decree the circumstances have so changed, a habeas
:orpus court may award the custody to the other parent
>r to a stranger, if the welfare of the child demands it.
Williams v. Crosby, 118 Ga. 296, 45 S. E. 282; Milner v.
Ratlin, 143 Ga. 816, 820, 85 S. E. 1045.
Determination of Right to Visit Child. — Where the
custody is awarded to one parent, it is usual and proper
:o permit the other parent to have reasonable access to the
:hild. But the court may in a proper case forbid access
>y one spouse to the child whose custody is awarded to the
)ther, or limit the right to visit the child to a particular
:ime and place; but mere past delinquency of a parent is
lot a ground for withholding enjoyment of the right.
Scott v. Scott, 154 Ga. 659, 661, 115 S. E. 2. For other
:ases, see 6 Cum. Dig. 783.
Where a decree is rendered awarding the custody of the
ninor child, a daughter, to the plaintiff, it is not an abuse
)f discretion, under this section for the court to provide for
/isits by the child to its paternal grandparents. Scott v
Scott, 154 Ga. 659, 115 S. E. 2.
Duty of Father to Support After Award to Mother. —
Where the wife obtains a decree granting her a divorce
md awarding to her the custody of their minor child, and
10 question as to the support of such child by the father
las been made or passed on, the father is not relieved of
iiis legal obligation for a proper support of such child.
Brown v. Brown, 132 Ga. 712, 64 S. E. 1092.
Consideration of Child's Welfare. — The principles of
award in suits for divorce seem to be the same as those
jf habeas corpus proceedings, see § 2972 and notes thereto.
Evidence touching the character, conduct, and reputa-
tion of either of the parties, or any other evidence tending
to throw light on their fitness to be the custodian of the
child, is admissible; but conclusions deducible from this
testimony are not the subject-matter of opinion by the
witnesses. Moore v. Dozier, 128 Ga. 90, 57 S. E. HO; Mil-
ner v. Gatlin, 143 Ga. 816, 820, 85 S. E. 1045. For other
cases as to sufficiency, see 6 Cum. Dig. 782.
Pending a libel for 'divorce the judge in the exercise of a
sound discretion may, as between the parties, temporarily
award custody of the children. Cason v. Cason, 158 Ga.
395, 123 S. E. 713. See also § 2980.
§ 2972. (§ 2453.) Habeas corpus for wife or
child. — In all writs of habeas corpus sued out on
account of the detention of a wife or child, the
court, on hearing all the facts, may exercise its dis-
cretion as to whom the custody of such wife or
child shall be given, and shall have power to give
such custody of a child to a third person. Act
1845, Cobb, 335.
Cross References.— See notes to § 2971. For full and
comprehensive treatment of habeas corpus proceedings, see
6 Cum. Dig. 760, 7 Enc. Dig. 1. As to mother's right to
possession, see § 3022. As to power of superior court judges
to grant writs of habeas corpus, see § 4850.
Editor's Note. — This section was taken from acts 1845
Cobb, 335. After a review of all the authorities and look-
ing to the statutes upon the awarding of the custody of
children, it is manifest that the purpose is to guard the
welfare of the child. The discretion of the trial court is
wide and will not be interferred with unless it has been
flagrantly abused. This discretion, as applicable to habeas
corpus cases, did not originate with the compilers of our
Code; they took it from the common law, and, in adopting
it they adopted also the meaning and limitations placed
upon it by the venerable sages and authorized expounders
of that system. And any presumption as to the custody
of the child may be rebutted, the parens patriae must
protect the innocent. The multiplicity of cases aiding in but
not directly construing this section make a reference to the
digests necessary. In 6 Cum. Dig. 780 and 7 Enc. Dig. 16,
a comprehensive and exhaustive treatment of the subject
will be found.
Section Applies to Court of Ordinary. — The discretion
conferred on courts by this section is applicable to all
courts authorized to grant the writ, including the ordinary.
Barlow v. Barlow, 141 Ga. 535, 81 S. E. 433.
Paramount Consideration. — In a habeas corpus proceed-
ing for the possession of a minor, the paramount considera-
tion is the welfare of the child. Walker v. Jones, 1 Ga.
App. 70, 57 S. E. 903; Evans v. Lane, 8 Ga. App. 826, 70
S. E. 603; Weatherby v. Jordan, 124 Ga. 68, 52 S. E. 83.
Discretion Vested in Trial Court. — In passing upon the
questions raised by the petition and answer in a habeas
corpus case for the possession of minor children, the dis-
cretion given by the law is to the trial judge, who sees and
hears the parties, the witnesses, and the children, and who
necessarily has superior opportunities for determining cor-
rectly the issues involved. Weathersby v. Jordan, 124 Ga.
68, 52 S. E. 83. See also, Starr v. Barton, 34 Ga. 99; Payne
v. Payne, 39 Ga. 174, 176.
Same — Abuse of Discretion.— Where a husband and par-
ent are both claiming the custody of a minor wife, the dis-
cretion of the presiding judge in awarding the possession
of her person will not be interfered with unless grossly
abused. Gibbs v. Brown, 68 Ga. 803; Boyd v. Glass, 34
Ga. 253. For a collection of cases, see 7 Enc. Dig. 16. See
also Atkinson v. Atkinson, 160 Ga. 480, 128 S. E. 765.
Where the evidence is uncontradicted that the father is
a man of high character and financially able and willing to
care for and educate the child, and is a proper and fit per-
son to raise him, and the evidence preponderates that it
will be to the best interest of the child that he be intrusted
with the father, it is an abuse of discretion to refuse to
award the custody of the child to the father. Williman v.
Williman, 138 Ga. 188, 74 S. E. 1077.
Right of Father. — Prima facie the right of custody of
an infant is in the father, and if it is claimed that the
custody should be taken from him and awarded to the ma-
ternal grandmother, the power ought to be exercised in
favor of the father, unless he has relinquished as forfeited
his right. This seems to be the uniform holding, but see
the Editor's Note under § 2971. Ed. Note.
Where the court in the exercise of its discretion awards
the custody of a child to its father instead of its maternal
grandmother, who had cared for and reared the infant at
her own expense, the judgment will not be reversed. Rourke
v. O'Neill, 150 Ga. 282, 103 S. E. 428.
On the hearing of a writ of habeas corpus brought by a
father on account of the detention of his child, he is not
entitled as matter of right to its custody, but the matter
is in the discretion of the court, on hearing all the facts.
Such discretion is vested in the court hearing the habeas
corpus and not in a reviewing court. Smith v. Bragg, 68
Ga. 650.
To Widowed Mother. — Upon the trial of a habeas corpus
proceeding, involving the right to the custody of a girl
thirteen years of age, the court did not err in awarding
such custody to the child's widowed mother, rather, than
to the child's brother, who was twenty-one years old and
unmarried, and it being shown that the mother was of
good character and able to care for her daughter. Beck
v. Beck, 134 Ga. 137, 67 S. E. 543.
To Stranger. — Ordinarily, when habeas corpus is brought
to determine the custody of a child, the court has a broad
discretion, and may award it even to a stranger; the best
[761]
§ 2973
ALIMONY
§ 297G
interest of the child being the paramount consideration.
Crapps v. Smith, 9 Ga. App. 400, 401, 71 S. E. 501.
But "as against strangers, the father, however poor and
humble, if of good moral character and able to support the
child in his own style of life, can not be deprived of the
privilege by any one whatever, however brilliant the ad-
vantage he may offer." Sloan v. Jones, 130 Ga. 836, 856,
62 S. E- 21.
Preferences of Child. — In habeas-corpus proceedings to
determine who is entitled to the custody of a minor over
the age of fourteen, the wish of the minor, while entitled
to due consideration, is not in all circumstances necessarily
controlling. Brown v. Harden, 150 Ga. 99, 102 S. E. 864;
Chunn v. Graham, 117 Ga. 551, 43 S. E. 987. For other
cases, see 6 Cum. Dig. 782, 7 Enc. Dig. 16.
Fitness of Custodian. — It is usually material and proper
for one of the parties to show that the other is unfit to
have the custody of the child. Crapps v. Smith, 9 Ga. App.
400, 401, 71 S. E. 501; Beck v. Beck, 134 Ga. 137, 67 S. E.
543. For other cases, see 6 Cum. Dig. 782.
§ 2973. (§ 2454.) Renewed cohabitation. —
Parties divorced from bed and board, on subse-
quent reconciliation, may live together again as
husband and wife, by first filing in the office of the
ordinary of the county where the divorce was
granted, their written agreement to that effect,
attested by the ordinary.
See § 2970. As to effect of subsequent cohabitation be-
fore award of alimony, see § 2990.
§ 2974. (§ 2455.) Ex parte cases. — In divorce
cases proceeding ex parte, it is the duty of the
judge to see that the grounds are legal, and sus-
tained by proof, or to appoint the solicitor-general,
or some other attorney of the court, to discharge
that duty for him.
Policy. — It is the policy of our constitution and legis-
lative enactments, for the preservation of domestic rela-
tions, to hinder facility in the procurement of divorces as
will be seen by this section. See also, §§ 2944, 2950, 2959,
2967, 6536. Divorce suits are not governed by the same
rules that control other actions; therefore § 5078 dealing
with waiver of jurisdiction has no application. Ed. Note.
Payment of Solicitor General — Where the Solicitor Gen-
eral is appointed to see that the grounds of a divorce are
legal, and sustained by proof, under this section he may
introduce evidence, and enter fully into the defense of the
case. But the court has no authority to compel the hus-
band to pay the solicitor general for his services. Creamer
v. Creamer, 36 Ga. 618, 619.
SECTION 3.
Of Alimony.
For full and comprehensive treatment, see 1 Cum. Dig.
390, 1 Enc. Dig. 319.
§ 2975. (§ 2456.) Permanent and temporary. —
Alimony is an allowance out of the husband's
estate, made for the support of the wife when liv-
ing separate from him. It is either temporary or
permanent.
Cross References.— See 1 Cum. Dig; 391, 1 Enc. Dig. 320.
As to how allowance is made, see §§ 2954, 2976. As to
limitation on power of husband to transfer his property to
defeat award, see § 2955. As to liability of husband for
support of wife after partial divorce, see § 2970.
Editor's Note. — Section 3 of article 1 pertains to alimony,
and is comprised of §§ 2975 to 2991. In order to obtain a
thorough understanding of the subject as treated in the
code it must be noted that §§ 2975 to 2981 relate to tem-
porary alimony and the remaining sections (with the ex-
ception of §§ 2986, 2987 and 2988 which relate to both) re-
late to permanent alimony. This fact is not apparent from
reading the catchlines to the sections, and seems to have
lead to some confusion in prior codes where the distinction
has not been observed in annotating. An excellent treat-
ment of the subject alimony, which maintains the appro-
priate division of permanent and temporary alimony, will
be found in 1 Cum. Dig. 390, 1 Enc. Dig. 319.
In its origin alimony was the method by which the
spiritual courts enforced the duty of support owned by a
husband to his wife during such time as they were legally
separated. Prior to the act of 1806, upon separation, the
property of the husband and wife were subject to legal di-
vision between the children except the jury might award a
part to either party. Under this statute, the uniform rul-
ing was that the whole question was with the jury. By the
adoption of the Code of 1863 this rule was changed and un-
der the rule since the Code the jury can only give the wife
alimony. It has been held in Georgia (see Davis v. Davis,
134 Ga. 804, 68 S. E. 594, and cases there cited) that the
wife may be granted alimony though the husband be
granted a total divorce, but see the dissent of Mr. Justice
Fish in the case cited.
Right Terminated by Death of Wife. — Alimony being for
the support of the wife during life, her interest therein
ceases at her death, and the unpaid balance of the sum
awarded can not be recovered by her administrator. Buffi
fington v. Cook, 147 Ga. 681, 95 S. E. 214.
§ 2976. (§ 2457.) Proceedings to obtain. —
Whenever an action for divorce, at the instance of
either party, is pending, or a suit by the wife for
permanent alimony, the wife may, at any regular
term of the court in which the same is pending, ap-
ply to the presiding judge, by petition, for an order
granting to her temporary alimony pending the
cause; and after hearing both parties, and evidence
as to all the circumstances of the parties and as to
the fact of marriage, the court shall grant an order
allowing such temporary alimony, including ex-
penses of litigation, as the condition of the husband
and the facts of the case may justify.
Cross References. — For full treatment for proceedings to
obtain alimony pendente lite, see 1 Cum. Dig. 391, 1 Enc.
Dig. 321. As to alimony without suit for divorce, see §
2986.
Editor's Note. — Alimony pendente lite is a common law
right and, formerly, as a wife had no separate property,
what she had at marriage and what she acquired after-
wards vesting in her husband, it was almost a matter of
course to grant temporary alimony to the wife where a
divorce suit was pending between the parties. This rule
has been somewhat modified and now the granting of
temporary alimony vests in the sound discretion of the
court, thus distinguishing it from permanent alimony
which is for the jury rendering the final verdict, see Met-
calf v. Metcalf, 153 Ga. 775, 112 S. E- 828.
When the original code was adopted there were no pro-
vision for granting temporary alimony except pending a
divorce suit. In 1870 an act was passed (acts 1870, p. 413)
which allowed temporary alimony where there was an ac-
tion for permanent alimony pending (see § 2986). It was
said in Higgs v. Higgs, 144 Ga. 20, 85 S. E. 1041, that this
section contemplated alimony pending the case. And as
such a hearing is not a final adjudication between the par-
ties the rulings of the court as to notice or continuance
will not be scanned closely (see Champion v. Champion,
68 Ga. 835). Nor is the granting of temporary alimony a
trial within the meaning of the constitutional guarantee of
jury trials. McGee v. McGee, 10 Ga. 477.
This section, though not so expressed in the catchline, is
applicable to temporary alimony only. For the law relat-
ing to permanent alimony, see §§ 2983 et seq., and the
notes thereto.
Preexisting Elements. — It should be carefully observed,
that two things are necessary to entitle the plaintiff in di-
vorce to temporary alimony, namely, marriage, and the
pendency of a suit for divorce, because the duty of the hus-
band to support his wife is based upon the existence of. a
marriage between them. Frith v. Frith. 18 Ga. 273: Meth-
vin v. Methvin, 15 Ga. 97; Pennaman v. Pennaman, 153
Ga. 647, 112 S. E. 829. For other cases, see 1 Cum. Dig.
396, 1 Enc. Dig. 324. And now, as stated in the editor's
note above, the application may be based on a suit for per-
manent alimony without divorce. See § 2986.
Limited to Support. — Alimony pendente lite, is less than
permanent alimony, and is limited to support. McGee v.
McGee, 10 Ga. 477.
May Be Retroactive. — Temporary alimony may be granted
so as to relate back to the commencement of the suit.
Swearingen v. Swearingen, 19 Ga. 265.
Prior Advances. — In adjusting alimony pendente lite, the
court should allow prior advances by the husband as a
credit against past alimony. Pinckard v. Pinckard, 22
Ga. 31.
Notice to Husband. — Before alimony Is granted in court,
[762]
§ 2976
ALIMONY
§ 2977
the husband against whom alimony is allowed, should have
notice and an opportunity of being heard. Goss v. Goss,
29 Ga. 109. See also, Luke v. Luke, 154 Ga. 800, 115 S. E.
666.
Conduct of Wife as Bar. — The wife is entitled to tem-
porary alimony, though the husband is suing for divorce
on the ground that his wife was, without his knowledge
pregnant at the time of the marriage. Frith v. Frith, 18
Ga. 273. See also Methvin v. Methvin, 15 Ga. 97. But see
Williams v. Williams, 114 Ga. 772, 40 S. E. 782, where it
was held that the granting of temporary alimony to the
wife who had committed adultery uncondoned by the hus-
band was an abuse of discretion. See 1 Cum. Dig. 395, 1
Enc. Dig. 322.
When prior to the marriage the wife had been a prostitute
and the husband with full knowledge voluntarily married
her, it is error to refuse to grant her temporary alimony
and allowance for counsel fees on this ground. Kendrick v.
Kendrick, 105 Ga. 38, 31 S. E- 115.
Provision for Maintenance as Bar. — It is no sufficient
answer to an application for temporary alimony that the
husband has made provisions for her maintenance and wiil
do so in the future. Pinckard v. Pinckard, 22 Ga. 31.
Settlement of Annuity as Bar. — But where the parties
have by deed of settlement agreed upon an annuity for
her maintenance, no temporary alimony will be allowed.
McLaren v. McLaren, 33 Ga. Sup. 99.
Counsel Fees. — Attorney's fees, under this section, are
treated as part of the temporary alimony and may be al-
lowed by the court although there was no separate prayer
for them eo nomine. Stokes v. Stokes, 127 Ga. 160, 56 S.
F. 303. For other cases, see 1 Cum. Dig. 400, 1 Fnc. Dig.
327. See also Durham v. Durham, 160 Ga. 586, 128 S. F.
788.
The allowance of attorney's fees is a necessary provision
to enable the wife to properly protect her interest, which
has been recognized from earliest times. Preston v. Pres-
ton, 160 Ga. 200, 127 S. F. 860.
Same — Discretion as to Amount. — On the hearing of an
application for "temporary alimony, including expenses of
litigation," the judge may allow as counsel fees such sum
as in his discretion appears proper under all the facts and
circumstances of the case, although there is no evidence be-
fore him fixing any amount as the value of the services
rendered and to be rendered by the plaintiff's counsel.
Sweat v. Sweat, 123 Ga. 801, 51 S. F. 716; Preston v.
Preston, 160 Ga. 200, 127 S. F. 860.
Same — Criterion. — Reasonable compensation for such
counsel as are necessary in the case should be the criterion
in determining the amount to be allowed as expenses of
litigation. Preston v. Preston, 160 Ga. 200, 127 S. F. 860;
Rogers v. Rogers, 103 Ga. 763, 30 S. F. 659.
Same— Notice and Process. — "A petition for alimony
pending a divorce suit or a suit for permanent alimony is
in the nature of an ancillary proceeding, and does not re-
quire the issuance and service of a new process returnable
to another term of court. Upon it the presiding judge is-
sues an order nisi which is served and under which the
hearing is had." This principle will also apply where the
cross -action for divorce embodies a petition for alimony
and also for attorneys fees. Luke v. Luke, 154 Ga. 800, 115
S. F. 666.
Same — After Verdict.— In a suit for permanent alimony,
without divorce, where an application for counsel fees was
made after verdict, and such fees are granted, the allowance
is not void. Durham v. Durham, 160 Ga. 586, 128 S. E
788.
But a different rule may be applied where there is an
application for attorney's fees after verdict in a suit for di-
vorce. Wise v. Wise, 157 Ga. 814, 122 S. F. 210; Luke v.
Luke, 15*9 Ga. 551, 126 S. E. 374.
Same — Effect of Previous Settlement. — Where husband
and wife have entered into a contract for alimony and
counsel fees were paid in that settlement, it is no bar to
an allowance of fees to the wife to defend a later divorce
suit brought by the husband. Phinizy v. Phinizy, 151 Ga.
393, 107 S. F. 53.
Same— Action in Justice Court.— Whilst a libel for divorce
in favor of the wife is pending, an action against the hus
band for the counsel fees of the wife in the divorce suit
can not be maintained in a justice court. Glenn v. Hill, 50
Ga. 94.
Same — Review. — An order for attorneys' fees and alimony
will not be reviewed by the supreme court pending the ac-
tion for advice. Ozmore v. Ozmore, 41 Ga. 46.
Termination. — Temporary alimony pending an action for
permanent alimony, does not cease with the verdict and
judgment in the superior court, where the case is brought
to the supreme court, but continues until the termination
of the litigation in all the courts. Holleman v. Holleman,
[76
69 Ga. 676. As to the effect of granting a new trial by the
supreme court upon temporary alimony, see Black v. Black,
150 Ga. 672, 104 S. E. 775.
And the dismissal by the husband of the divorce pro-
ceedings, if the parties continue to live apart, will not
terminate the alimony allowed under a previous order.
Sumner v. Sumner, 118 Ga. 408, 45 S. E. 315. See 1 Cum.
Dig. 402, 1 Enc. Dig. 328. As to effect of subsequent co-
habitation, see note to § 2990.
Hearing Testimony. — On the hearing for temporary ali-
mony, the judge has the discretion to hear the testimony
either by affidavits or orally. Rogers v. Rogers, 103 Ga.
763, 30 S. E. 659.
Hearing in Vacation. — See § 2980 and notes thereto.
Pleading. — A petition for alimony pending a divorce suit
or a suit for permanent alimony is in the nature of an an-
cillary proceeding, and does not require the issuance and
service of a new process returnable to another term of
court. Upon it the presiding judge issues an order nisi
which is served and under which the hearing is had. Luke
v. Luke, 154 Ga. 800, 115 S. E. 666. For full treatment of
pleading and practice, see 1 Cum. Dig. 410, 1 Enc. Dig.
334.
§ 2977. (§ 2458.) Discretion of judge. — In ar-
riving at the proper provision, the judge shall con-
sider the peculiar necessities of the wife, growing
out of the pending litigation; he may also consider
any evidence of a separate estate owned by the
wife, and if such estate is ample, as compared with
the husband's, temporary alimony may be refused.
See § 2976 and note thereto. See also § 2979. See 1 Cum.
Dig. 391, 1 Enc. Dig. 319.
Conflicting Testimony. — Where the testimony as to the
material facts on an application for alimony are conflicting,
and there is enough to support the finding of the lower
court, the supreme court will not interfere with his dis-
cretion. Glass v. Wvnn, 76 Ga. 319; Heaton v. Heaton, 102
Ga. 578, 27 S. E. 677; Kelly v. Kelly, 146 Ga. 362, 91 S. E.
120. For other cases, see 1 Cum. Dig. 393, 394.
Amount. — The discretion of the court in fixing the amount
of alimony will not be interferred with unless it has been
flagrantly abused, especially as the court may modify its
order from time to time as the condition and circumstances
of the parties may require. McGee v. McGee, 10 Ga. 477;
Besore v. Besore, 49 Ga. 378; Stanley v. Stanley, 115 Ga.
990, 42 S. E. 374. For a collection of cases, see 1 Cum. Dig.
399, 1 Enc. Dig. 326. But the descretion is to be founded
on the evidence and not the mere whim or notion of the
courts. Wardlow v. Wardlow, 39 Ga. 53.
Review of Discretion. — The Supreme court will not con-
trol the discretion of the trial court in allowing temporary
alimony, unless it has been flagrantly abused. Etheridge
v. Etheridge, 149 Ga. 44, 99 S. E. 37; Besore v. Besore, 49
Ga. 378, 379; Carlton v. Carlton, 44 Ga. 216; Osborne v.
Osborne, 157 Ga. 902, 122 S. E. 877; Brown v. Brown, 159
Ga. 323, 125 S. E. 713; Metcalf v. Metcalf, 153 Ga. 775, 112
S. E. 828; Preston v. Preston, 160 Ga. 200, 127 S. E. 860.
Same — Condition of Wife Considered. — The condition of
the wife was considered, in Collins v. Collins, 94 Ga. 490,
19 S. E. 823; 'Clark v. Clark, 78 Ga. 79. See 1 Enc. Dig.
327.
But where a wife has been previously married and has
issue of the first marriage the husband of the second mar-
riage is not liable for the support of the stepchild; and the
stepchild should not be considered in estimating the wife's
alimony out of the husband's separate estate. Melvin v. Mel-
vin, 129 Ga. 42, 43, 58 S. E. 474.
Same — Separate Estate. — Where it appears that the wife
has a separate estate the court should take into considera-
tion its present value and annual income as compared to the
husband's and his obligations to support other members oi
the family before putting the entire burden of the wife's
support upon him. Hawes v. Hawes, 66 Ga. 142. See also
Methvin v. Methvin, 15 Ga. 97.
Same — Condition of Husband. — The discretion of the
judge should depend on the condition of the husband. Mc-
Gee v. McGee, 10 Ga. 477. For a full treatment of this sub-
ject including sufficiency of evidence of ability to pay, see
1 Cum. Dig. 399, 1 Enc. Dig. 327. See also, Preston v.
Preston, 160 Ga. 200, 127 S. E. 860.
Counsel Fees. — As to discretion of court in allowing, see
note to § 2976.
Sufficiency of Evidence of Exercise of Proper Discretion
— For a collection of cases in which it was held under the
evidence that the trial court did not abuse its discretion in
granting alimony and attorney's fees, see 1 Cum. Dig. 394.
3]
§ 2978
ALIMONY
§ 2880
§ 2978. (§ 2459.) Revision and enforcement. —
The order allowing alimony shall be subject to re-
vision by the court at any time, and may be en-
forced either by writ of fieri facias or by attach-
ment for contempt against the person of the hus-
band. A failure to comply with the order shall not
deprive the husband of his right either to prosecute
or defend his cause.
See §§ 2976, 2977 and notes thereto. For full treatment,
see 1 Cum. Dig. 413, 1 Enc. Dig. 335.
Section Does Not Apply to Permanent Alimony. — This
section applies exclusively to the revision and review of
allowances of temporary alimony. Coffee v. Coffee, 101 Ga.
787, 28 S. E. 977. See also Wilkins v. Wilkins, 146 Ga. 382,
91 S. E- 415; Gilbert v. Gilbert, 151 Ga. 520, 107 S. E. 490;
Cureton v. Cureton, 132 Ga. 745, 752, 65 S. E. 65.
Review of Courts Discretion to Revise. — While in cases
of conflicting evidence the discretion of the trial court will
not be readily interfered with yet, the evidence of the de-
fendant as to his inability to comply being uncontradicted
it is error to refuse to modify the decree. Potter v. Potter,
145 Ga. 60. 88 S. E. 546. See 1 Cum. Dig. 414, 415.
Change of Circumstances Not Necessary to Revision. —
In granting or refusing to grant temporary alimony the
judge of the superior court is wisely permitted, under the
law, to exercise a wide discretion. His order allowing
temporary alimony "shall be subject to revision of the
court at any time," either in term or vacation, and, modified
in any direction, or revoked. Osborne v. Osborne, 146 Ga.
344, 91 S. E- 61. Hence, a change of circumstances in the
parties is not a prerequisite to the alteration, modifica-
tion or revocation of a decree for temporary alimony. An
order granting temporary alimony is always in the breast
of the court, and may be revised as having been improvi-
dently granted, just as an order or judgment may be re-
voked or modified during the term at which it was passed.
Jennison v. Jennison, 136 Ga. 202, 211, 71 S. E. 244; Potter
v. Potter, 145 Ga. 60, 88 S. E. 546; Pinckard v. Pinckard.
23 Ga. 286. The first case cited here greatly weakens or
perhaps overrules Sumner v. Sumner, 123 Ga. 118, 50 S. E-
1013; S. C, 118 Ga. 408, 45 S. E. 315, where it was held that
after the affirmance by the supreme court of a judgment
granting to the wife temporary alimony and attorney's fees,
the trial court is without jurisdiction to review the same
and modify or vacate it upon any ground relied on by the
husband before review.
In the Jennison case, supra, the court said: "Some of the
language used in the decision of Sumner v. Sumner, 123 Ga.
118, 50 S. E. 1013, is too broad. The statement made
therein that 'after an order granting temporary alimony
and attorney's fees has been duly passed, the court is
without jurisdiction to revise the same or to set it aside
on any grounds save one based on a change of circum-
stances occurring subsequently to the granting of the
order' is incorrect." In view of the language of this sec-
tion it seems that the Jennison case states the true doctrine.
Ed. Note.
Adultery on the part of the wife subsequent to the grant
of temporary alimony, or prior thereto but unknown to
the husband until after the granting of the order for
temporary alimony, is a sufficient cause to" warrant the
court in modifying or revoking the order. Jennison v.
Jennison, 136 Ga. 202, 71 S. E. 244.
Effect of Agreement of Parties — The fact that an order
is based upon the agreement of the parties and granted by
their consent does not make such order an exception to
the ones referred to in the statute, and does not preclude
the court from modifying or revoking it. Jennison v.
Jennison, 136 Ga. 202, 209, 71 S. E- 244.
Enforcement — Execution. — The right to temporary ali-
mony may be enforced by a writ of fieri facias. Gibson v.
Patterson. 75 Ga. 549. But see Goss v. Goss, 29 Ga. 109
where it is said that the proper mode of enforcing an or-
der for alimony is by attachment and not by fieri facias.
The rule now is, as stated in this section, that enforce-
ment may be either by writ of fieri facias or attachment.
See Beavers v. Beavers, 148 Ga. 506, 97 S. E. 65. And see
1 Cum. Dig. 416.
Same — Attachment for Contempt. — Generally orders or
decrees for alimony are enforced by attachment for con-
tempt. For a full treatment of the subject reference should
be made to 1 Cum. Dig. 417, 1 Enc. Dig. 336.
An attachment for contempt for failure to pay an amount
awarded as temporary alimony is in the nature of a civil
proceeding; it is remedial, its purpose being merely to
compel obedience to the order of the court requiring the
payment of the amount allowed as temporary alimony.
Beavers v. Beavers, 148 Ga. 506, 97 S. E- 65. And see
Bentley v. Bentley, 149 Ga. 707, 712, 102 S. E. 21.
Where the husband is attached for contempt for failure
to comply with the mandate of the court compelling him to
pay temporary alimony, it was not erroneous to admit
evidence of the wife as to his ability to pay. Beavers v.
Beavers, 148 Ga. 506, 97 S. E- 65.
Where a judgment has been rendered awarding temporary
alimony and counsel fees to the wife, and a rule nisi is is-
sued calling upon the husband to show cause why he
should not be attached for contempt for not having paid
the counsel fees, and he answers that he is unable, on ac-
count of his proverty, to pay them, it is error to reject evi-
dence offered to prove the truth of this answer. It is also
error in such a case to strike the answer, and to attach
the husband for contempt without permitting him to be
heard. Wester v. Martin, 115 Ga. 776, 42 S. E. 81. For
other cases, see 1 Enc. Dig. 336.
Same — Failure to Apply for Remedy. — Failure to apply for
a remedy to enforce an order for temporary alimony dur-
ing the pendency of the suit can not operate to deprive the
plaintiff of the right to sue for it after the final verdict
disallowing permanent alimony. Gibson v. Patterson, 75
Ga. 549.
§ 2979. (§ 2460.) Merits not in issue. — On ap-
plication for temporary alimony, the merits of the
cause are not in issue, though the judge, in fixing
the amount of alimony, may inquire into the cause
and circumstances of the separation rendering the
alimony necessary, and in his discretion may refuse
it altogether.
See §§ 2976, 2977 and notes thereto. See also, 1 Cum. Dig.
392.
Editor's Note. — While this section states that the judge
may in his discretion refuse the alimony, it was thought
advisable to collect the cases, pertaining to discretion of
the court with relation to temporary alimony, in one place.
Hence reference should be made to § 2977 which is deemed
the most appropriate place for such a note.
Hearing One Party Only. — On the hearing of an applica-
tion for temporary alimony, the judge may inquire into
the cause and circumstances of the separation; and if he
hear testimony of the movant on this subject, it is error
to refuse the respondent a like privilege. Rogers v. Rogers,
103 Ga. 763, 30 S. E. 659. See also Ray v. Ray, 106 Ga.
260, 39 S. E. 91. For other cases, see 1 Enc. Dig. 324.
§ 2980. (§ 2461.) Support and custody of chil-
dren pending suits for divorce. — In suits for di-
vorce, the judge presiding may, either in term or
vacation, grant alimony, or decree a sum sufficient
for the support of the family of the husband de-
pendent upon him, and who have a legal claim up-
on his support, as well as for the support of his
wife; and may also, on said motion, hear and de-
termine who shall be entitled to the care and
custody of the children pending the litigation, as
if the same were before him on a writ of habeas
corpus; and in case a sum is awarded for the sup-
port of said family, the husband shall not be liable
to third persons for necessaries furnished them.
Acts 1870, p. 413.
See §§ 2971, 2972 and notes thereto.
Editor's Note. — This section was taken from acts of 1870.
p. 413. The purpose of the act it seems, was to modify or
relax the rule requiring applications for alimony where an
action was pending for divorce, to be made "at any regular
term of the court" as is required by § 2976. And also to
take a proceeding under this section out of the operation
of any former judgment on habeas corpus and to confer
upon the Judge plenary powers for the exercise of a sound
discretion in awarding the custody of the children of the
parties to the divorce libel. This section and § 2971, being
in pari materia, must be construed together. Prior to the
passage of the section the converse rule was applied, and
judges were denied the vacation authority. See Goss v.
Goss, 29 Ga. 109. The section as it now reads has been
applied in Ray v. Ray, 109 Ga. 465, 34 S. E. 562; Way-
coster v. Waycoster, 150 Ga. 75, 102 S. E- 353.
Notice and Process. — This section and § 2976, construed
together, authorize applications for temporary alimony,
when a suit for divorce is pending, to be made either in
64 ]
§ 2981
ALIMONY
§ 2984
term or vacation, and such a petition does not require new
process returnable to any other term of court. Luke v.
Luke, 154 Ga. 800, 115 S. E. 666. See also, § 2976 and note
thereto.
Effect of Previous Proceedings. — Where a motion, based
on pending libel for divorce is made to the judge, under
this section for temporary alimony and the custody of
children of the marriage pending the litigation, the judge.
in determining the custody of the children, is not bound
by a previous judgment in habeas corpus between the same
parties. Zachry v. Zachry, 140 Ga. 479, 79 S. E. 115.
A settlement entered into between husband and wife
whereby the husband is released from all future claims for
temporary and permanent alimony, but making no pro-
visions for a minor child, will not operate as a bar to au
action under this section for support of such minor child.
Norrell v. Norrell, 138 Ga. 64, 74 S. E. 757; Johnson v.
Johnson, 131 Ga. 606, 62 S. E. 1044. See also King v. King,
151 Ga. 361, 106 S. E. 906, where it was held that it was no
bar to a suit for permanent alimony for the support of the
wife and children where both parties had been refused a
divorce in a subsequent suit.
Review by Fast Writs of Error. — A judgment rendered
at chambers denying an application for temporary alimony,
filed by a wife under this section in behalf of herself and a
minor child pending an action for divorce by her against
her husband, is, under § 2987, reviewable upon a "fast"
writ of error. Bender v. Bender, 98 Ga. 717, 25 S. E. 924.
See 1 Cum. Dig. 421.
But an order modifying a previous order passed on a
motion for alimony, determining the custody of children
pending litigation, can not be reviewed on fast writ of er-
ror. Thompson v. Thompson, 124 Ga. 874, 53 S. E. 507.
§ 2981. (§ 2462.) Alimony for children on final
trial. — If the jury, on the second or final verdict,
find in favor of 'the wife, they shall also, in provid-
ing permanent alimony for her, specify what
amount the minor children shall be entitled to for
their permanent support; and in what manner, how
often, to whom, and until when it shall be paid;
and this they may also do, if, from any legal cause,
the wife may not be entitled to permanent alimony,
and the said children are not in the same category;
and when such support shall be thus granted, the
husband shall likewise not be liable to third per-
sons for necessaries furnished the children em-
braced in said verdict who shall be therein speci-
fied. Acts 1870, p. 413.
See 1 Cum. Dig. 421. As to parental obligations for sup-
port of children, see 9 Cum. Dig. 137, 10 Enc. Dig. 56.
The words "when such support shall be thus granted,"
as used in this section, mean "when such support is pro-
vided for the children in the verdict and decree in the di-
vorce proceeding." Brown v. Brown, 132 Ga. 712, 715, 64
S. E. 1092.
Previous Settlement. — A settlement made between hus-
band and wife, in which no provision is made for a child
of the marriage, is not to be considered by the jury in
estimating the allowance to a child which had not
been previously awarded to her by decree of the court.
Johnson v. Johnson, 131 Ga. 606, 62 S. E- 1044. See note to
§ 2980.
Future Revision. — A decree under this section is not sub-
ject to future revisions, as in case of temporary alimony.
See § 2978. Coffee v. Coffee, 101 Ga. 787, 28 S. E. 977.
Excessive Award. — An award of alimony to the child by
the jury of the full amount of the husband's earning capac-
ity is excessive. Johnson v. Johnson, 131 Ga. 606, 62 S.
E. 1044.
Verdict for Education Alone. — A verdict merely finding
an amount for the education of the child is contrary to
law. While it would scarcely be possible to educate a child
without supporting it, such a verdict leaves the question
of support undecided and in such case a new trial should
be granted. Flyn v. Flyn, 149 Ga. 693, 101 S. E. 806.
For use of children exclusively, see note to § 2979.
Separate Property of Wife. — If in the final verdict the
jury gives property which is the separate estate of the
wife, she being the libellant, to the children, if the giving
of the property to the children could be excepted to, it was
a matter of which the libellant only could complain, and
not the defendant. O'Halloran v. O'Halloran, 49 Ga. 301.
Question for the Jury. — This section differs from the
section pertaining to temporary alimony, in that in grant-
[7
ing such temporary alimony the question is for the court.
See Metcalf v. Metcalf, 153 Ga. 775, 112 S. E. 828, where
the distinction is made.
Same — Second Verdict Controlling. — The second or final
verdict awarding alimony to the wife and. providing for the
child is not contrary to law or void, although the first ver-
dict was against the wife, such prior verdict not being
conclusive against her right to alimony. Brown v. Brown,
152 Ga. 463, 110 S. E. 234.
§ 2982. (§ 2463.) Judgments, how enforced. —
Such orders, decrees, or verdicts, permanent or
temporary, in favor of the children or family of the
husband, may be enforced as those in favor of the
wife exclusively. Acts 1870, p. 413.
As to how decrees and verdicts in favor of the wife arc-
enforced, see § 2978 and note thereto.
§ 2983. (§ 2464.) Permanent alimony, when
granted. — Permanent alimony is granted in the
following cases: 1. Of divorce, as considered in the
former section. 2. In cases of voluntary separa-
tion. 3. Where the wife, against her will, is either
abandoned or driven off by her husband.
Cross References. — For full treatment of permanent ali-
mony, see 1 Cum. Dig. 404, 1 Enc. Dig. 328. As to per-
manent alimony without divorce, see § 2986 and notes there-
to. As to what estate the wife takes in property awarded
as permanent alimony, see § 2956.
The words "former section" as used above in clause I,
mean § 2, of art. 1, being §§ 2944 to 2974 inclusive. Camp-
bell v. Campbell, 90 Ga. 687, 689, 16 S. E. 960. As this is the
state of the law, it is necessary to refer to the section in-
dicated and the notes thereto. Ed. Note.
Effect of Submitting to Arbitrators. — Where a husband
and wife have voluntarily separated but failed to agree upon
any claims of the wife upon the husband for alimony, and
the matter of granting such alimony is submitted to arbi-
trators, and they make an award which the wife accepts
and uses, she living thereafter separate and apart from
her husband, such award has the force and effect of a de-
cree granting permanent alimony under this section. Har-
ris v. Davis, 115 Ga. 950, 42 S. E. 266.
Matter of Right. — Where a total divorce is granted upon
the application of the wife permanant alimony generally fol-
lows as a matter of right. And this may be true whether
the divorce be total or partial. Campbell v. Campbell, 90
Ga. 687, 16 S. E. 960.
But where it appears that the wife voluntarily left the
home of the husband without sufficient cause and remained
away without his consent, a verdict refusing the wife ali-
mony will not be disturbed. Rorie v. Rorie, 134 Ga. 69, 67
S. E. 410; Ward v. Ward, 144 Ga. 312, 87 S. E. 17, and see
1 Cum. Dig. 405. And see also Davis v. Davis, 134 Ga. 804.
68 S. E. 594, where it was held that it does not follow that
the wife would be entitled to alimony as of course, where
her conduct has been so grossly improper that it caused
her husband to obtain a total divorce from her.
On What Property Given.— See § 2954 and notes thereto.
Form of Petition. — A judgment rendered in an alimony
proceeding will not be void because the petition upon which
it was rendered did not use the language of this section, to
wit: "Voluntary separation," or that the wife against her
will was "either abandoned or driven off by her husband."
Fountain v. Tarver, 150 Ga. 628, 104 S. E- 443.
§ 2984. (§ 2465.) Husband's voluntary deed-
In either of the two latter cases the husband may
voluntarily, by deed, make an adequate provision
for the support and maintenance of the wife, con-
sistent with his means and her former circum-
stances, which shall be a bar to her right to per-
manent alimony.
Installments. — Where the husband promises to pay a
lump sum for the wife's support, payable in installments,
and the wife dies before all the installments are paid, her
executor may sue for the unpaid installments as they
severally mature. Melton v. Hubbard, 135 Ga. 128, 68 S.
E- 1101. As to recovery of administrator of installments
awarded by jury, when libellant died before all install-
ments were paid, see note to section 2984.
Maintenance and Annuity as Bar to Temporary Alimony.
— See notes of Kendrick v. Kendrick, 105 Ga. 38, 31 S. E.
115 and Pinckard v. Pinckard, 22 Ga. 31. under § 2976.
65 1
§ 2985
ALIMONY
§ 2987
§ 2985. (§ 2466.) Decree in equity. -— In the
absence of such provision, on the application of the
wife a court of equity may, by decree, compel the
husband to such provision for the support of the
wife and such minor children as may be in her
custody, as indicated in the foregoing paragraph.
§ 2986. (§ 2467.) Proceeding for alimony be-
fore the judge. When husband and wife are liv-
ing separately, or are bona fide in a state of separa-
tion, and there is no action for divorce pending, the
wife may, in behalf of herself and her minor chil-
dren, if any, or either, institute a proceeding by
petition setting forth fully her case; and upon
three days notice to the husband, the judge may
hear the same in term or vacation, and grant such
order as he might grant were it based on a pending
libel for divorce, to be enforced in the same man-
ner, together with any other remedy applicable in
a court of equity, such as appointing a receiver and
the like; and should such proceeding proceed to a
hearing before a jury, they shall decree as pro-
vided by section 2985 of this Code for such cases,
but such proceeding shall be in abeyance when a
libel for divorce shall be filed, bona fide, by either
party, and the judge presiding shall have made his
order on the motion for alimony, and when so
made, such order shall be a substitute for the afore-
said decree in equity, as long as said libel shall be
pending and not finally disposed of on the merits.
Acts 1870, p. 413.
See § 2976 and note thereto. As to property subject to
alimony, see note to § 2983. As to enforcement of judg-
mEcUto"s §Note!-As to the effect this section has upon
§ 2983 it seems that two different views may be advanced.
It could be contended that this section (which was taken
from the acts of 1870, p. 413), did not enlarge the three in-
stances stated in § 2983. On the other hand it may be
contended that the act was broad and comprehensive in its
terms and was not limited by a literal construction of §
2983 In construing these sections, regard should be had
to harmonizing them as far as practicable, remembering
that the act of 1870 was the later expression of the legis-
lative will, and that its effect should not be destroyed by
placing a narrow and restricted construction on the law
as it already existed, and then limiting the effect of the
later act by the older law so construed. See Sikes v. bikes,
143 Ga. 314, 85 S. % 193.
When the original code was adopted (code of 1863) there
was no provision for granting temporary alimony except
pending a divorce suit. It is obvious from the above sec-
tion that the legislative purpose was to modify this rule
and place the granting of temporary alimony pending a
suit for permanent alimony on the same footing as an ap-
plication for temporary alimony pending a divorce suit.
Constitutionality.— The act of October 28,_ 1870, from which
this section was taken, is not unconstitutional as referring
to more than one subject matter, or as containing matter
different from that expressed in its title. An examination
of the act"will show that alimony, custody of children, etc.,
was the only subject matter referred to therein. Halleman
v. Halleman, 65 Ga. 476.
What Constitutes Voluntary Separation.— Where a hus-
band and wife agreed that she should live at her sister's
(he living at a different place), and that he would support
her, it amounted to a voluntary separation, and a peti-
tion for alimony under this section could be brought. Hawes
v. Hawes, 66 Ga. 142.
The cause of the separation is immaterial in a suit un-
der this section. Glass v. Wynn, 76 Ga. 319. But in Sikes
v. Sikes, 143 Ga. 314, 318, 85 S. E. 793, the court in discuss-
ing this holding said that it does not establish an inviolable
rule that the mere fact of separation (not mutually volun-
tary) will give to the wife the right of alimony. See also
Coley v. Coley, 128 Ga. 654, 658, 58 S. E. 205. And an
abandonment by the wife without just cause will defeat
any recovering under this section. See Pace v. Pace, 154
Ga. 712, 115 S. E. 65, which also holds that refusal of wife
to follow husband to new residence constitutes abandon-
ment. See also, Perkerson v. Perkerson, 157 Ga. 589, 122
S. E. 53; Brisendine v. Brisendine, 152 Ga. 745, 111 S. E. 22.
And see 1 Cum. Dig. 405.
Obeyance to Libel for Divore — Suit in Another County.
— A suit for permanent alimony can not be instituted un-
der this section, in the county of the husband's residence,
after the filing of a petition for divorce by the husband
against the wife in a different county in which the latter re-
sided, it appearing that the petition for divorce had been
duly served upon the wife, and that the suit for divorce
was pending at the time the wife instituted her proceeding
before the judge for permanent alimony. Wallace v. Wal-
lace, 157 Ga. 897, 122 S. E. 594.
Applicability to Minors — Necessity for Guardian. — A wife
can not maintain against her husband who is a minor, with-
out a guardian ad litem, a proceeding under this section.
Huley v. Huley, 154 Ga. 321, 114 S. E. 184. It seems that
it was the intention of the court in the above case to over-
rule the holding in Besore v. Besore, 49 Ga. 378, and Bent-
ley v. Bentley, 149 Ga. 707, 102 S. E. 21, in as much as they
held contra to the Huley case. The Huley case contains
strong dissents by Beck, p. 3, and Hill, J. Ed. Note.
The amount of alimony to be granted is within the dis-
cretion of the court after looking to all the circumstances
of both parties (see § 2976 and notes thereto). For a col-
lection of illustrative cases as to what regulates the amount
payable and sufficiency of evidence to support the amount
granted, see 1 Cum. Dig. 399, 407, 1 Enc. Dig. 325, 330. Ed.
Note.
Temporary Alimony — Necessity of Pending Suit. — This
section provides that the judge may grant such order as
he might grant were it based on a pending libel for divorce.
The annotations to § 2976 show conclusively that a pend-
ing suit for divorce is a necessary condition to the grant
of temporary alimony. Hence to recover temporary ali-
mony under this section it is necessary that there be a
pending suit for permanent alimony. Ed. Note. And where
a petition was filed for temporary alimony without perma-
nent alimony, a subsequent independent suit for permanent
alimony would not save the former petition. Stalvey v.
Stalvey, 132 Ga. 307, 64 S. E. 91.
Until there is "a proceeding by bill or petition on the
equity side of this court," the judge at chambers has no
jurisdiction of the matter of granting alimony under this
section. And there is no such proceeding until the bill or
petition is filed in the clerk's office. Yoemans v. Yoemans.
77 Ga. 124, 3 S. E. 354.
Same — At Chambers. — Where, pending a suit for perman-
ent alimony, an application is made for temporary ali-
mony under this section the judge at chambers, and in a
county other than that in which the defendant resides, has
jurisdiction, where proper notice has been given to the de-
fendant, to award temporary alimony and counsel fees to
the wife. Yoemans v. Yoemans, 77 Ga. 124, 3 S. E. 354;
Hughes v. Hughes, 133 Ga. 187, 65 S. E. 404. See 1 Cum.
Dig. 413.
Prior Decree Refusing Divorce No Bar. — The verdict and
decree against the wife in the suit for divorce was no bar
to the allowance of alimony to her in a subsequent proceed-
ing brought under this section. King v. King, 151 Ga. 361.
106 S. E. 906; Brisendine v. Brisendine, 152 Ga. 745, 111 S.
E. 22.
The "notice" required by this section must be served
upon the defendant himself, and not upon his counsel, and
the service must be personal, and made by the sheriff or
his deputy, in order to confer upon the court jurisdiction
of the defendant and the subject-matter. Chapman v. Chap-
man, 157 Ga. 330, 121 S. E. 328. See also Stallings v. Stall-
ings, 127 Ga. 464, 56 S. E. 469.
And leaving such notice at the defendant's most notorious
place of abode is insufficient to give the court jurisdiction.
Baldwin v. Baldwin, 116 Ga. 471, 42 S. E. 727.
Joinder of Parties. — In a proceeding for alimony under
this section, injunction and receiver and other necessary '
relief may be granted, and to this end all necessary par-
ties may be joined as defendants with the husband. Price
v. Price, 90 Ga. 244, 15 S. E. 774.
A writ of ne exeat may be granted in this state at the
instance of a wife against her husband, pending an ap-
plication for alimony, and prior to any decree therefor.
Lamar v. Lamar, 123 Ga. 827, 51 S. E. 763.
Quoted and controlling in Clark v. Clark, 78 Ga. 79.
§ 2987. (§ 2468.) Bill of exceptions and pro-
ceedings thereon. — The judgments of the judges
of the superior court in such cases, whether at law
or in equity, in term or vacation, or in the pro-
gress of the cause, shall be the subject of writ of
[766]
2988
RIGHTS AND LIABILITIES OF HUSBAND AND WIFE
§ 2993
rror and on the same terms as are prescribed in I voked on motion and proof of subsequent cohabitation.
Weeks v. Weeks, 160 Ga. 369, 127 S. E. 772.
ases of injunctions. Acts 1870, p. 414.
Cross References.— See note to § 2980. See also 1 Cum.
)ig. 620, 1 Enc. Dig. 124. As to terms prescribed in cases
f injunctions, see § 6153.
A judgment committing a party to jail for refusal to com-
ly with an order passed on a motion for alimony and at-
orneys' fees, must be brought to the supreme court by
ast writ of error. Gray v. Gray, 127 Ga. 345, 56 S. E-
38.
An assignment of error upon a judgment awarding ali-
lony and counsel fees in a proceeding under § 2986, that
uch judgment is contrary to law, raises the question that
lie same is without evidence to support it; and a bill of
xceptions to review such judgment, in which this is the
ole assignment of error, will not be dismissed because the
ame does not specifically assign any error. Pace v. Pace,
54 Ga. 712, 115 S. E- 65.
§ 2988. (§ 2469.) Liability to third person be-
>re, etc. — Until such provision is made, volun-
irily or by decree or order of the court, the hus-
and shall be liable to third persons for the board
nd support of the wife, and for all necessaries
irnished to her, or for the benefit of his children
l her custody.
See 7 Cum. Dig. 74, 7 Enc. Dig. 179.
As to liability of the father to third parties for support
f the children, see note to § 2971.
Allegations. — An allegation that a husband and father
riled to supply his wife and daughter with necessaries,
nd that they were furnished by the plaintiff at the re-
uest of the wife and mother, set forth a cause of action
nder this section. Humphreys v. Bush, 118 Ga. 628, 45 S.
}. 911.
Creditor Has No Lien. — One furnishing the wife with ne-
essaries as set out in this section stands on the same
lane as any other creditor of the husband, and has no
en which he can assert on property of the husband sold
o a bona fide purchaser for value before his claim has
een reduced to judgment. Lamar v. Jennings, 69 Ga. 392.
lee § 2955.
§ 2989. (§ 2470.) After alimony granted. —
Vhen permanent alimony is granted, the husband
eases to be liable for any debt or contract of the
/ife; on the other hand, he ceases to have any
ower to control her acquisitions by purchase, or
escent, or gift, or otherwise; and the property of
he husband set apart for the support of the wife
5 not subject to his debts or contracts as long as
he lives.
Monthly Installments. — Divorce judgment, awarding wife
pecified sum monthly as permanent alimony, with hus-
tand's consent, is a judgment for alimony, with all in-
idents, under this section. In re Westmoreland, 298 Fed.
84.
And where in the trial of a suit for divorce the jury in
he final verdict awarded to the libellant, as permanent
.limony the sum of "35.00" per month until a total sum
tf $840 should be paid and the libellant died before the ex-
)iration of the period through which the monthly install-
nents should be paid, her administrator could not recover.
Bufnngton v. Cook, 147 Ga. 681, 95 S. E. 214. As to re-
:overy of installments where allowance of husband is to
)e thus paid, see note to § 2984.
Verdict Not Considering Husband's Debts. — The verdict
illowing alimony to the wife making no provision for the
)ayment of the debts of the husband, does not render it
llegal. Halleman v. Halleman, 65 Ga. 476.
§ 21990* (§ 2471.) iSubsequent cohabitations. —
rhe subsequent voluntary cohabitation of the hus-
>and and wife shall annul and set aside all provi-
sion made, either by deed or decree, for permanent
ilimony. The rights of children under any deed
)f separation or voluntary provision or decree for
ilimony shall not be affected thereby.
See 7 Cum. Dig. 74, 7 Enc. Dig. 179. As to how cohabi-
tation may be renewed after partial divorce, see § 2973.
The rule of this section is applicable to temporary ali-
mony, and the order for temporary alimony should be re-
A deed, not made as a provision for alimony for the wife
while living separate and apart from her husband, but made
in consideration of the wife's agreement to return to the
husband and to resume her marital relations, is not ren-
dered void by the subsequent cohabitation of the husband
and wife under this section. Young v. Young, 150 Ga.
515, 104 S. E. 149. See also Lemon v. Lemon, 141 Ga. 44R,
81 S. E. 118.
§ 2991. (§ 2472.) Interest of wife in husband's
estate. — After permanent alimony granted, upon
the death of the husband the wife is not entitled to
any further interest in his estate in her right as
wife, but such permanent provision shall be con-
tinued to her, or a portion of the estate equivalent
thereto shall be set apart to her.
Under this section, the allowance of permanent alimony
to a wife bars her of her rights of dower and year's sup-
port from her husband's estate. Harris v. Davis, 115 Ga.
950, 42 S. E. 266; Stewart v. Stewart, 43 Ga. 294.
Where permanent alimony was allowed a wife out of
her husband's estate, and he died thereafter, it should
have been continued to her, or a portion of his estate equi-
valent thereto should have been set apart to her, and in a
contest between the wife's decree for permanent alimony
and a prior common law judgment, the former would take
precedence. Smythe v. Banks, 73 Ga. 303.
ARTICLE 2.
Of the Rights and Liabilities of Husband
and Wife.
§ 2992. (§ 2473.) Husband is head of family. —
In this State the husband is the head of the family,
and the wife is subject to him; her legal civil
existence is merged in the husband, except so far
as the law recognizes her separately, either for her
own protection, or for her benefit, or for the pres-
ervation of public order. Acts 1855-6, p. 229;
Code 1863, § 1701.
See § 2995.
See 1 Enc. Dig. 177.
Editor's Note It is well settled in Georgia that where
the husband and wife reside together, whatever else she
may be the head of, he is the head of the family. And this
status was not effected by the married womans act of 1866
or the 19th amendment to the Federal constitution. For a
collection of cases in which this section was quoted, see 1
Cum. Dig. 72.
Conclusiveness.— The legal status of the husband as head
of the family can not be affected even by sworn testimony
to the effect that in the particular case the wife is in fact
the head of the family. Patterson v. State, 8 Ga. App. 454,
69 S. E. 591.
Homestead. — A married woman living with her husband
as a member of his family is not entitled to have a home-
stead set apart to her as the head of a family, out of her
separate estate, notwithstanding the fact that the husband
may be physically unable to work and possessed of no
property nor means of support. Johnson v. Little, 90 Ga.
781, 783, 17 S. E. 294. See also Simmons v. Anderson, 56
Ga. 54. See § 3392.
Presumption of Possession. — "When husband and wife
live together upon land, the possession is presumptively in
him as the head of the family, and such joint residence
would not alone be sufficient to give notice of any claim
of interest in the land by the wife." Smith v. Jerman,
8 Ga. App. 262, 271, 68 S. E. 1014.
Maintaining Civil Actions. — Under this section a married
woman's legal civil existence is so merged in the husband
as to prevent her maintaining an action for the homicide
of her father. Georgia Ry., etc., Co. v. Beale, 25 Ga. App.
364, 368, 103 S. E. 434.
Co-residence of the wife alone does not rebut the legal
presumption that the house and all the household effects
belong to the husband as the head of the family. Smith v.
Berman, 8 Ga. App. 262, 68 S. E. 1014.
§ 2993. (§ 2474.) Wife's property, when sepa-
rate. — All the property of the wife at the time of
[767]
§ 2993
RIGHTS AND LIABILITIES OF HUSBAND AND WIFE
§ 2993
her marriage, whether real, personal, or choses in
action, shall be and remain the separate property
of the wife; and all property given to, inherited, or
acquired by the wife during coverture shall vest in
and belong to the wife, and shall not be liable for
the payment of any debt, default, or contract of the
husband. Acts 1866, pp. 146, 147.
Cross References.— See § 6456. For full treatment of this
subject, see 7 Cum. Dig. 35, 7 Enc. Dig. 121. As to effect
of transactions between husband and wife upon creditors,
see §§ 3007, 3011, 3224. As to husband as agent of wife, see
§§ 3593 et seq. As to wife being feme sole as to her separate
estate, see § 3007 and note thereto. As to attestation of deed
to land in which the wife has an interest, see § 4204. As
to liability of husband for torts of his wife, see 4413 and
note thereto.
Editor's Note.— This section was taken from the acts of
1866, p. 146. The spirit and purpose of the act was to
completely emancipate the property of married women and
to prevent the appropriation of the wife's property to the
payment of the husband's debts.
An instance which suffices to illustrate the potency and
extent of the policy of emancipation is the fact that in this
state the wife may recover money which has been paid to
a creditor of her husband in extinguishing his debt, even
in a cash sale, with her funds. The husband has as little
interest or control over his wife's property as she has over
his, in fact less, for she is entitled to support out of his.
Since this act the wife stands very much upon the same
footing as a feme sole (except as to contracts of surety-
ship, etc.), as to her separate estate. But even though the
policy of the law of this state is strongly in favor of
completely emancipating the property of the married wo-
man, comity will not be allowed the laws of a sister state,
where she is able by statute of that state to go surety for
her husband (see Woolen Co. v. Magill, 155 Ga. 555, 117 S.
E. 657). All constructions relating to contracts of surety-
ship exclusively, are treated under § 3007, but as to con-
tracts of a wife as a joint maker of a note see infra this
note. For editorial comment upon the effect of this stat-
ute upon the wife's real estate, see the later part of this
note, catch-line, "Same — Editor's Note."
Husband's Control of Property. — A husband can not use
his wife's separate money to pay his own debts and if his
creditor knowingly receives her separate funds for her
husband's debt, she can recover the amount so paid. If
the fund has been invested in realty by the husband's cred-
itor, the husband being insolvent, the land is subject to her
claim, and she may enforce a lien thereon in a court of
equity. Maddox v. Oxford, 70 Ga. 179. For full treatment
of payment of husband's debts by wife, see § 3007, and notes
thereto.
Title Acquired by Purchaser From Husband. — When a
husband, for the purpose of paying his debt, sells to his
creditor personal property of his wife, and the creditor
knows at the time that the property belongs to the wife,
such creditor acquires no title thereto, although the wife
consented to the sale or transfer. Grant v. Miller, 107 Ga.
804, 33 S. E. 671.
Investments by Husband. — A husband can not use his
wife's separate money to buy property for himself; and if
he invests her funds in real estate in his own name, equity
will fix a trust upon the land; and having jurisdiction icr
one purpose, it will do complete justice and give full relief
between the parties. Sasser v. Sasser, 73 Ga. 275.
Assignment of Insurance Policy. — See note of Farmers
Bank v. Kelly, 155 Ga. 733, 118 S. E- 197. Under § 3007.
Gift by Wife.— See § 3010, and notes thereto.
Power of Wife to Ratify Sale. — "A wife can not ratify a
sale of her property, if made by her husband to pay his
debts. This, in effect, was decided in the case of Chappell
v. Boyd, 61 Ga. 662." Grant, v. Miller, 107 Ga. 804, 806, 33
S. E. 671.
Power to Execute Promissory Note — As Joint Maker. —
By the common law a married woman could not make a
note at all; nor could she ratify it during coverture, or
afterwards, except on a new consideration. In this state
while a married woman can not legally become a security
for another's debt, yet where she has signed a negotiable
note with another, as a joint maker, for the purpose of
securing the debt of the latter, and it has been transferred
to a bona fide purchaser for value before due and without
notice, it is valid, and binds her. Howard v. Simpkins,
70 Ga. 322; Farmers, etc., Bank v. Eubanks, 2 Ga. App
839, 59 S. E. 193.
But a note made by the wife for her husband and indorsed
by him, where the payee of the note knows this fact at the
time of its execution, can not be collected from her by the
payee. Knox v. Harrell, 26 Ga. App. 772, 107 S. E. 594, 108
S. E- 117.
Same — Deed Executed to Cover Note Executed by Hus-
band.— A deed executed by the wife to the payee of a note
given for the husband, does not bind her separate estate.
This is true although the note and the deed were made by
the wife to secure a loan contemporaneously made to the
husband. Knox v. Harrell, 26 Ga. App. 772, 107 S. E. 594,
108 S. E. 117, citing Gross v. Whitely, 128 Ga. 79, 57 S. E-
94; Klink v. Boland, 72 Ga. 485.
Same — Presumption that Separate Estate Exists. — In
view of the law in this state, when a married woman signs
a promissory note, or an order for money or goods, the
legal presumption is that she has a separate estate out oi
which she intends to pay it. Wilcoxson v. State, 60 Ga.
185, citing Huff v. Wright, 39 Ga. 41.
Same — Burden on Wife to Show Illegality. — And where a
wife is sued on her promissory note, the burden is on het
to show that the note falls within some of the restrictions
on her right to contract, and that the holder of the note hac
notice of its invalidity when he took it. Farmers and
Traders Bank v. Eubanks, 2 Ga. App. 839, 59 S. E. 193.
But in the absence of any evidence that the wife herseli
purchased the goods which formed the basis of the con-
sideration of a note sued upon, or that she has constituted
her husband her agent for that purpose, a finding that ir
signing the note the wife became merely a surety for hei
husband's debt was demanded. Hill Bros. v. Bagemore, 1/
Ga. App. 107, 86 S. E. 397.
Wife as Undisclosed Principal of Husband. — See § 3596
and notes thereto.
Earnings of Wife. — At common law the earnings of th(
wife belonged to her husband. . Cotter v. Gazaway, 141 Ga
534, 81 S. E. 879. For a full treatment of husband's right;
in wife's earnings, see 7 Cum. Dig. 42, 7 Enc. Dig. 132.
Same — Since Act of 1866. — Notwithstanding the genera
contractual emancipation of married women in this state bj
reason of the act of 1866, embodied in this section, it i
still the law in the absence of any contract or agreement
express or implied, on the part of the husband that th<
earnings of the wife shall be retained by her as her sepa
rate estate, they belong to him. Roberts v. Haines, 11!
Ga. 842, 38 S. E. 109; Mock v. Neffer, 148 Ga. 25, 95 S. E
673. For other cases, see 7 Cum. Dig. 43.
But this rule will not apply if the wife is living separat<
from her husband. Wrightsville, etc., R. Co. v. Vaughan
9 Ga. App. 371, 71 S. E. 691; Belcher v. Craine, 135 Ga. 73
68 S. E. 839; Cotter v. Gazaway, 141 Ga. 534, 81 S. E. 879
For other cases, see 7 Cum. Dig. 43.
Same — Consent of Husband. — The wife, however, is en
titled to her earnings when her husband consents that sh<
shall receive them. Central of Ga. Railway Co. v. Cheney
20 Ga. App. 393, 93 S. E. 42.
When a wife, by the consent of her husband, makes
contract for her own labor, in which contract it is agree<
that she is, herself, to receive the compensation, she may
under our law, sue and recover in her own name. Meri
wether v. Smith, 44 Ga. 541.
Same — Capacity of Wife to Sue For. — Ordinarily tin
earnings of a married woman are not a part of her sepa
rate estate, but belong to her husband. Hence, where sh<
has received a tortious personal injury, permanently im
pairing or destroying her earning capacity, her husband
and not she, has the right to sue for the loss, so far a I
relates to the period of their joint lives. Wrightsville, etc.l
Co. v. Vaughan, 9 Ga. App. 371, 71 S. E. 691. See § 2994f
For other cases, see 7 Cum. Dig. 75, 7 Enc. Dig. 179. As t'
suit where the husband has consented, see the paragrapi
immediately preceding.
Real Estate of Wife— Prior to Statute.— Under the stat
utes of this State as they were in force prior to the ac
approved December 13, 1866 (Acts 1866, p. 146), all the rea
estate of the wife in her possession and to which she hai
title at the time of the marriage vested in and belonged i
the husband. Hudgins v. Chupp, 103 Ga. 484, 30 S. E- 30lj
Same — Editor's Note. — The act of 1866 and the constitu
tion of 1868 made a sweeping and radical change in th
status of married women in respect to rights of property'
Prior to this change, separate estates depended generall;
on the express provisions of marriage settlements, wills ami
other conveyances; now they exist by virtue of the generjj
lav/ of the land, as a miiversal rule of property. In viev
of the above facts, it was deemed expedient by the editot
to omit from this note the cases dealing with property right
of married women prior to the act. A full, comprehensiv
and exhaustive collection of cases prior to 1866 may b
found under the title "Husband and Wife," 7 Cum. Dip
35, 7 Enc. Dig. 121 and the title "Separate Estate of Mar
ried Women." 10 Cum. Dig, 221, 11 Enc. Dig. 472.
[ 768 ]
I 2994
RIGHTS AND LIABILITIES OF HUSBAND AND WIFE
§ 2996
Trusts.— For an elaborate and comprehensive treatment
{ this subject reference should be made to Separate Estate
f Married Women, 11 Fnc. Dig., pp. 486 to 494. See also
he same title in 10 Cum. Dig. 225.
A conveyance in trust for a woman, married or single, of
ull age and sound mind, with no remainder to protect, and
lothing prescribed for the trustee to do, operates to pass
he legal title immediately into the beneficiary, the con-
eyance being made since the passage of the act of 1P66.
tome v. Shropshire, 112 Ga. 93, 37 S. F. 168. The trust is
xecuted. Sutton v. Aiken, 62 Ga. 734. As to words n^c-
ssary to create a trust estate for the wife, see § 3730.
Since the passage of the married woman's act, if a trust
s created for the sole use and benefit of a married woman,
t' is, under this section, executed eo instanti and she takes
he property discharged of the trust. Griffin v. Stewart,
01 Ga. 720, 722, 29 S. F. 29.
Hence, a husband who paid for land with his own money
nd took a conveyance in 1881, describing himself in the
.eed as trustee for his wife, acquired the property for her,
nd it became her separate estate both legally and equi-
ably. The trust was executed as soon as created. Payton
. Payton, 86 Ga. 773, 13 S. F. 127.
Same— Power to Sell.— And although a trust for a mar-
ied woman may have been created prior to the act of 1866,
'et after that act she had power to sell and convey the
rust property, and the trust became executed. Banks v.
jloat, etc., Co., 69 Ga. 330.
Also a deed, on January 2, 1867, by T. as trustee for the
rife of said T. no other cestui que trust being mentioned
herein, was the same in legal effect as if it had been made
tirectly to the wife. The legal title was in the wife, and
he could, after the making of said deed, have sold the
and and made a good title thereto, without leave of court.
yathrop v. White, 81 Ga. 29, 6 S. F. 834. See Kile v. Flem-
ng, 78 Ga. 1.
Liability for Breach of Warranty.— Under this section a
named woman can not be made liable for the breach of a
warranty of title contained in a deed executed jointly by
ler husband and herself, describing and undertaking to
onvey as one tract two separate and distinct parcels of
and, one of which belonged to her and the other to him,
.nd when it appears that the breach of warranty occurred
>y reason of the fact that he was compelled to pay off a
nortgage given by the husband upon his parcel of the land
>efore the execution of the joint conveyance. Sorrells v.
Worrells, 105 Ga. 36, 31 S. F. 119.
§ 2994. (§ 2475.) Torts to wife. — If a tort be
ommitted upon the person or reputation of the
vife, the husband or wife may recover therefor; if
he wife is living separate from the husband, she
nay sue for such torts, and also torts to her chil-
Iren, and recover the same to her use. She may
mforce contracts made in reference to her own
icquisitions.
Cross References.— See §§ 4412, 4490. For full treatment,
see 7 Cum. Dig. 75, 7 Fnc. Dig. 181. As to capacity of wife
:o maintain suit for her earnings, see note to § 2993.
Construed With Section 2993. — A wife, although living
with her husband may sue and recover in her own name
for a tort committed to her person causing physical injury
to her. Insofar as this section restricts the rights of a
married woman to sue in such case, it is modified by §
2993. Atlanta v. Dorsey, 73 Ga. 479; Athens v. Smith, 111
Ga. 870, 36 S. F. 955. -For other cases, see 7 Fnc. Dig. 181.
Action for Slanderous Words. — And a wife may maintain
in her own name, and without joining him with her, an ac-
tion for slanderous words alleged to have been used of and
concerning herself. Panlonski v. Thornton, 89 Ga. 829, 15
S. F. 822.
Expenses Incurred as Consequence of Injury. — A married
woman can not recover for expenses incurred by her in
consequence of an injury, unless actually paid by her, there
being no testimony going to show that she was living
separate from her husband, that she was a free trader, that
she had any separate property, or that she personally un-
dertook to pay these expenses or in any manner bound her-
Iself to do so. The married woman's law does not have the
effect of giving her the right to recover for such expenses,
without joining her husband in the action. Lewis v. At-
lanta. 77 Ga. 756.
| Recovery Against Husband. — Under the statute law of
|Georgia a wife can not recover from a husband with whom
jshe is living in lawful wedlock, for a tort resulting from
his negligent operation of an automobile in which they
were riding at the time of the injury. Heyman v. Heyman,
19 Ga. App. 634, 92 S. F. 25.
Ga. Code— 25 [ 7
Same — Before Marriage. — When a woman suffers a torti-
ous personal injury, impairing or destroying her earning
capacity, the cause of action arising therefrom becomes
a "chose in action," within the meaning of § 2993, and a
part of her separate estate, notwithstanding her subsequent
marriage, though the damages which under the law she
would have been entitled to recover as a result of the tort
may include compensation for loss of earning capacity, which
the after-acquired husband would have been entitled to
enjoy if it had not been previously destroyed by the tort.
Wrightsville, etc., Railroad Co. v. Vaughan, 9 Ga. App. 371,
71 S. F. 691.
Injuries to Minor Child. — Under this section a mother
has a right of action for a tort which deprives a minor of
his ability to render valuable services when the father has
abandoned his family and all custody and control of the
minor. The allegation in the petition of such abandon-
ment by the father is sufficient as against a general de-
murrer. Amos v. Atlanta R. Co., 104 Ga. 809, 31 S. F. 42.
But this rule applies only to injuries inflicted upon the
child after the separation took place, and by reason of
which she is deprived of its services. If the cause of ac-
tion arose to the father and he dies, it will not survive to
the mother. Savannah, etc., Ry. Co. v. Smith, 93 Ga. 742,
21 S. F. 157; King v. Southern Ry. Co., 126 Ga. 794, 797, 56
S. F. 965.
Two Distinct Causes of Action. — When a married woman
is injured by the wrongful conduct of another, two different
causes of action may arise: the one in her favor for her
own pain and suffering, and the other in favor of the hus-
band for the loss of his wife's services and for expenses
incurred as a consequence of the injuries to her. Georgia
R., etc., Co. v. Tice, 124 Ga. 459, 461, 22 S. F. 916.
§ 2*95. (§ 2476.) Acquisitions of wife living
separate from her husband. — When living separate
froi^L her husband, the acquisitions of a wife and
of he*, children living with her shall be vested in
the wife for her separate use, free from the debts,
contracts, or control of her husband, and at her
death, intestate, the same shall descend to her
children, and if none, to her next of kin. Acts
1851-2, p. 237.
See § 2992 and note thereto. For full treatment of sepa-
rate estates of married women, see generally 10 Cum. Dig.
221, 11 Fnc. Dig. 472. As to control of deposits by minor,
see § 2366 (187).
§ 2996. (§ 2477.) Agency of wife in respect to
necessaries. — The husband is bound to support and
maintain his wife, and his consent shall be pre-
sumed to her agency in all purchases of neces-
saries suitable to her condition and habits of life,
made for the use of herself and the family. This
presumption may be rebutted by proof.
See §§ 2988, 3573. For full treatment, see 7 Cum. Dig.
67, 7 Enc. Dig. 171.
Editor's Note. — The theory of the law as embraced in
this and the following section is based upon the legal obli-
gation of the husbani to support and maintain his wife.
He has the right to ner labor, and he not only owes her
support by the laws of morality and nature but by the law
of the land.
Presumption qf General Agency. — Where necessaries are
furnished to the wue in the absence of any express agree-
ment whereby she will be personally liable therefor, the
presumption is that she contracted for them in the right
of her general agency for her husband, and that he, and
not she, is liable. And this is true even though the cred-
itor may have himself intended to credit the wife and not
the husband, unless it be that such intention was expressly
declared or cummunicated to the wife. Brazell v. Hearn,
33 Ga. App. 490, 127 S. F. 479, citing Ga. Grocery Co. v.
Brunson, 24 Ga. App. 484, 101 S. F. 130, and other cases.
And the fact that the wife was earning an amount suffi-
cient to maintain her would not of itself be sufficient to
relieve the husband of his legal obligation to support her.
Nipper v. Nipper. 133 Ga. 216, 65 S. F. 405.
Same — Joint Use of Purchase. — Cohabitation and joint
use of the goods purchased is presumptive evidence of the
wife's authority to contract, and it is for the husband to
rebut the presumption by showing that the goods were
supplied under such circumstances that he is not bound to
pay for them. Robinson v. McCommons, etc., Co., 24 Ga.
69 ]
§ 2997
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 3000
App. 106, 100 S. F. 43; Cannerat v. Goldsmith, 6 Ga. 14;
Mitchell v. Treanor, 11 Ga. 324.
Same— Evidence Necessary to Rebut.— The presumption
of the wife's agency which arises under this section can only
be rebutted by positive and unequivocal evidence that the
articles furnished were not necessaries, or that the seller
had either actual or constructive notice of an allowance to
the wife by the husband, either permanent or temporary,
sufficient to enable her to procure necessaries without ob-
taining them upon her husband's credit. Adler v. Morrison,
15 Ga. App. 139, 82 S. F- 783.
Where Wife Contracts Individually. — The contract of a
wife for goods sold to her on her own credit alone is not
binding on the husband, though the seller may have ex-
pected her to get the money from her husband. Mitchell
v. Treanar, 11 Ga. 324; Morris v. Root, 65 Ga. 686. See also
Goodson v. Powell, 9 Ga. App. 497, 71 S. F. 765.
And where the wife gives her note for goods, although
she and her husband are living together, it was held that
the credit was given to the wife and that the husband was
not liable. Connerat v. Goldsmith, 6 Ga. 14.
What Constitutes Necessaries.— The husband is responsi-
ble for all the necessaries and supplies absolutely necessary
that the family needs. Hamilton v. Jenkins, 7 Ga. App.
136, 66 S. F. 397; Wrightsville, etc., Ry. Co. v. Vaughan,
9 Ga. App. 371, 378, 71 S. E. 691.
Same — Purchases for Third Parties. — A wife's agency to
bind her husband extends only to necessaries. And under
this section goods bought for the use of third parties can
not be charged to the husband. Suiter v. Mustin, 50 Ga.
242.
Same — Dental Work. — Unless there be proof of an ex-
press contract on the part of a married woman to pay for
dentistry done for herself and child, she being accompanied
by her husband when introduced with the child ^o the
dentist, there can be no recovery against the wife. Free-
man v. Holmes, 62 Ga. 556.
Same — Groceries (and Clothing. — Groceries and clothing^are
clearly within the territory of necessaries. Hamilton v.
Jenkins, 7 Ga. App. 136, 66 S. F. 397. '*
Same — Funeral Expenses. — When a married woman dies
leaving a husband surviving her, the husband is primarily
liable, and not the estate of the deceased, for the payment
of her funeral expenses. Kenyon v. Brightwell, 120 Ga.
606, 48 S. E- 124.
But the estate of a deceased husband will not be held lia-
ble for the funeral expenses of a widow who has taken
dower and year's support. The holding in the above case,
refer to the liability of living husbands and not dead ones.
Haralson v. White, 31 Ga. App. 105, 119 S. F. 454.
Subsequent Provisions for Alimony. — Subsequent provision
made by the court for past alimony will not bar the right
of recovery for goods previously furnished. Mitchell v.
Treanor, 11 Ga. 324.
This section gives to the creditor no preferred claim on
the husband's estate. One furnishing the wife with nec-
essaries stands on the same plane as any other creditor of
the husband, and has no lien which he can assert on prop-
erty of the husband sold to a bona fide purchaser for value
before his claim has been reduced to judgment. Eamar v.
Jennings, 69 Ga. 392.
Pleading. — An allegation that a husband and father failed
to supply his wife and daughter with necessaries, and that
they were furnished by the plaintiff at the request of the
wife and mother, set forth a cause of action under this sec-
tion. Humphreys v. Bush, 118 Ga. 628, 45 S. F. 911.
§ 2997. (§ 2478.) Liability of husband for neces-
saries; separation. — The husiband is bound for
necessaries furnished to the wifetwfien separated
from him, subject to the limitations hereinbefore
provided. If the wife be living in adultery with
another man, the husband is not liable; but no-
tice by the husband shall not relieve him from
liability, if his wife is separated from him by rea-
son of his own misconduct; if she voluntarily
abandons him without sufficient provocation, no-
tice by the husband shall relieve him of all lia-
bility for necessaries furnished to her.
See § 2996 and note thereto.
Separation — When Presumed. — Where a husband left the
state as a fugitive from justice, carrying his wife with him,
and she later returned and lives upon the land of her hus-
band, the husband still remaining away, it does not nec-
essarily demand the presumption that the parties were liv-
ing in a state of separation as husband and wife under such
[7
circumstances that the husband would not be liable for nec-
essaries furnished to the -wife. Ward v. Johnson, 23 Ga.
App. 479, 98 S. F. 405.
Same — Burden of Proof. — Where the husband and wife
are living apart, it is for the tradesman to show that the.
separation has taken place under such circumstances as
will render the husband liable. Mitchell v. Treanor, 11 Ga.
324.
Same — Question for Jury. — Whether the parties were liv-
ing in a state of separation as husband and wife under such
circumstances as would make him liable for necessaries
furnished her is a question for the jury. Ward v. Johnson,
23 Ga. App. 479, 98 S. F. 405; Mitchell v. Treanor, 11 Ga.
324.
Alimony. — This section does not deal with divorce or
alimony cases, or the power of the judge and jury to grant
or refuse alimony. Davis v. Davis, 134 Ga. 804, 68 S. F.
594.
Pleading. — Under this section the plaintiff is not required
in his petition to negative facts which the defendant may
set up by way of defense. Humphreys v. Bush, 118 Ga.
628, 45 S. F. 911.
§ 2998. (§ 2479.) General agency of wife The
wife may act as attorney and agent for the hus-
band, ibut, except in cases before mentioned, proof
of such authority must be made as in other cases.
As to power of wife to be agent of another than her
husband, see § 3573. For full treatment of power of wife
to bind husband, see generally, 7 Cum. Dig. 67, 7 Fnc. Dig.
171. See also, §§ 2996, 2997 and notes thereto.
ARTICLE 3.
Of Marriage Contracts and Settlements.
For full treatment, see 8 Cum. Dig. 417, 9 Fnc. Dig. 196.
§ 2999. (§ 2480.) Marriage article or parol
agreement. — Any agreement between the parties
to a marriage, contemplating a future settlement
upon the wife, whether by parol or in writing, may
be executed and enforced by a court of equity at
the instance of the wife at any time during the life
of the husband: Provided always that the rights of
third persons, purchasers or creditors, in good
faith and without notice, are not affected thereby.
An agreement perfect in itself, and which needs no
future conveyance to effect its purposes, in an ex-
ecuted contract, and does not come under thd
definition of marriage articles.
See generally 8 Cum. Dig. 417, 9 Fnc. Dig. 196.
Editor's Note. — The language of this section which readd
"whether by parol or in writing, may be executed and enj
forced by a court of equity at the instance' of the wife al
any time during the life of the husband" constitutes an ex I
ception to the statute of frauds (§ 3222, par. 3). This exl
ception is given to the wife and must be .executed durrmj
the life of the husband and will not prevail after his deatll
against third parties.
It should be noted that in the annotations to previouj
codes, decisions appear which are misleading. These easel
in effect state that the parol agreements contemplated b;l
this section are within the statute of frauds. The casesl
of course, were decided prior to the adoption of this sectiol
and they are no longer controlling.
Conveyance to Third Party. — Where a husband, prior tl
marriage, agrees to convey certain property to the wife M
consideration of marriage, but after the marriage conveyl
the property to a third party the latter takes a good titll
as against the widow of the deceased husband. Hammonl
v. Hammond, 135 Ga. 768, 70 S. F. 588. And this is trul
even where a will was made prior to the conveyance, sucl
will devising the land to the widow. S. C.
The husband can not alter an antenuptial agreement b
postnuptial deed. Maxwell v. Hoppie, 70 Ga. 152.
Jurisdiction of Equity. — Fquity has jurisdiction to s(
aside marriage settlements. Gefken v. Groef, 77 Ga. 340,
§ 3000. (§ 2481.) Voluntary execution and trus
deeds. — The husband may voluntarily execute sue
agreement, or he may at any time during tb
coverture, either through trustees or directly to hi
70]
3001
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 3004
ife, convey any property to which he has title,
ibject to the rights of prior purchasers or credit-
rs without notice.
See the section immediately preceding and the notes
lereto. As to effect of conveyances between husband and
ife upon creditors, see §§ 3011, 3224 and notes thereto.
§ 3001. (§ 2482.) Construction of contract. —
,very marriage contract in writing, made in con-
:mplation of marriage, shall be liberally construed
> carry into effect the intention of the parties, and
o want of form or technical expression shall in-
alidate the same. Such contract must be attested
y at least two witnesses.
See 8 Cum. Dig. 418, 9 Enc. Dig. 197.
Editor's Note.— This section was codified from the deci-
10ns of Blake v. Irwin (3 Ga. 367) and Lafitte v. IvOwton,
3 Ga. 305. .
Some of the principles here enunciated are similar to the
ules of construction as applied to wills. See § 390O, and the
otes thereto.
Surrounding Circumstances.— Attendant and surrounding
ircumstances may always be resorted to, and proof of the
ical usage or understanding of words is admissible to ar-
ive at the meaning intended by the parties. Brown v.
Lonsey, 74 Ga. 210.
Children provided for in a marriage settlement, where
here are no words to indicate affirmatively a different im-
ort, are presumed to be children of the marriage which
ives occasion to the settlement. Knorr v. Raymond, 73
la.. 749.
Grammatical Construction. — "The intention of the parties
lust be carried out, even though we have to disregard rules
f grammatical construction to effectuate it." Brown v.
tansey, 74 Ga. 210, citing Ardis v. Printup, 39 Ga. 648.
§ 3002. (§ 2483.) Record of marriage contracts.
-Every marriage contract and every voluntary
ettlement made by the husband on the wife,
whether in execution of marriage articles or not,
nust be recorded in the office of the clerk of the
uperior court of the county of the residence of the
msband, within three months after the execution
hereof. On failure to comply with this provision,
uch contract or settlement shall not be of any
orce or effect against a purchaser, or creditor, or
urety who, bona fide and without notice, may be-
:ome such before the actual recording of the same,
if such contract or settlement is made in another
|tate, and the parties subsequently move into this
State, the record must be made within three
nonths from such removal. If the settled prop-
:rty be in this State, and the parties reside in an-
ther, then the record must be made in the county
vhere the property is, and within the time speci-
led above. Acts 1847, Cobb, 180.
As to time instruments required to be recorded take ef-
fect, see § 3320.
As to recording acts generally, see 9 Cum. Dig. 915, 11
Enc. Dig. 98.
Editor's Note.— This section was codified from the acts
of 1847, Cobb, 180. Prior to the passage of the act there
was no distinct act requiring marriage settlements to be
recorded. It is obvious that the purpose of the act was
to protect purchasers, creditors and sureties of the hus-
band.
Strictly Construed.— The effect of this section is to re-
quire a record of the instrument, on pain of forfeiture, fis
against certain dealers with the husband. It is but fair,
that a law of this character should be strictly construed,
and not extended beyond its terms. And such has been
the course pursued by this court, in its previous adjudica-
tions, upon this subject. Cummings v. Boston, 25^ Ga.
277; Cloud v. Dupree, 28 Ga. 170; Cunningham v. Schley, 41
Ga. 435.
Section Not Applicable to Actions Between the Parties.
—As between the parties to a marriage contract, it is valid,
though it be not recorded. Reinhart v. Miller, 22 Ga. 402;
Lagon v. Goodall, 42 Ga. 95, and even so when by parol,
see § 2999.
Bona Fide Creditors. — Under this section a bona fide
creditor is one who gives credit to the husband on the faith
of the property contained in the marriage settlement.
Brown v. Spivey, 53 Ga. 155, 159; Cloud v. Dupree, 28 Ga.
173. And he must have become such before actual record
of the settlement. Brown v. Spevey, 53 Ga. 155. That the
credit must be based on the property involved in the set-
tlement is emphasized by Sims v. Albea, 72 Ga. 751 and
Gentry v. Cowan, 66 Ga. 720, 724.
A claim will not be dismissed because the settlement was
unrecorded, as notice may be brought home to the creditor
without recordation, thus making him not a bona fide
creditor. Fulcher v. Royal, 55 Ga. 69.
What Constitutes a Voluntary Settlement.— A deed from
the husband to the wife for love and affection, is a volun-
tary settlement, within the meaning ot this section and
must be recorded within three months to vest title in the
wife against the claim of a surety who indorses for the
husband before the date of the record. Sumner v. Bryan,
etc., Co., 54 Ga. 614.
Same — Conveyances After Marriage. — This section ap-
plies to marriage agreements and marriage settlements
only, and its terms will not be extended by construction so
as to embrace conveyances of property by a husband to a
wife, after marriage, upon an independent consideration not
connected with the marriage contract. Coleman v. Walker,.
102 Ga. 576, 27 S. E. 973.
Hence, a voluntary conveyance by the husband to the
wife, he being solvent at the time of the execution of the
deed, will be upheld as against creditors even though the
same was not recorded in the manner pointed out by this
section. Coleman v. Walker, 102 Ga. 576, 27 S. E. 973.
Effect Upon Mortgagee with Notice. — Where a husband
deeded property to himself, as trustee, for the benefit of
his wife and children, and such deed was recorded in com-
pliance with this section, and later the husband mortgaged
the property to a third party, it was held that the con-
veyance was good as against the mortgagee who had notice
before the mortgage was executed. Wilson v. Riddley, 123
U. S. 608, 615, 8 S. Ct. 255, 31 L. Ed. 280.
Nonresident. — This section does not require the record of
an antenuptial contract between a woman who was a resi-
dent and a man who was a nonresident, by which the lat-
ter attempted to release certain supposed rights in her
property located within the state. Boarden v. Benner, 136
Fed. 258.
Residence of Husband — Subsequent Removal. — A mar-
riage settlement, duly recorded within the time prescribed
by law, in the county of the residence of the husband, need
not be again recorded in the county or counties to which
the husband may subsequently remove. The first registra-
tion, if properly done, is sufficient. Clark v. Way, 33 Ga.
149.
Where a husband, at the time of entering into a marriage
contract, lives in one county but after the consummation
of the marriage resides in another, the record of the con-
tract in the latter county is proper. Hayden v. Mitchell,
103 Ga. 431, 30 S. E. 287.
Applied in Adair v. Davis, 71 Ga. 769.
§ 3003. (§ 2484.) Wife may force a record. —
If the trustee or husband having possession of such
contract or settlement fails, or refuses to have the
same recorded, the wife, or any friend of hers, may
apply to the judge of the superior court at any time
for an order compelling such record; and the
trustee thus refusing, after demand, shall be per-
sonally responsible to his cestui que trust for all
damages sustained by reason of the failure to re-
cord ; and such application of the wife, or her friend,
when entered on the minutes of the superior court,
shall be a notice equivalent to the record of the
marriage contract or trust deed.
§ 3004. (§ 2485.) Appointing and removing
trustee. — The judge of the superior court of the
county of the wife's domicile may at any time,
upon petition, exercise the powers of a chancellor in
appointing, or removing, or substituting trustees,
or granting any order for the protection of the
trust estate, exercising a wise discretion as to the
terms on which such appointment shall be made,
or such order granted. The proceeding in each
case shall be transmitted to the clerk of the supe-
[771]
§ 3005
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 3007
rior court, to be recorded in the book of the
minutes of such court, next to the minutes of the
last term thereof.
§ 3005. (§ 2486.) When executed in favor of
volunteers. — Marriage contracts and postnuptial
settlements will be enforced at the instance of all
persons in whose favor there are limitations of the
estate. Marriage articles will be executed only at
the instance of persons coming within the scope
of the marriage consideration; but when executed
at their instance, the court may execute also in
favor of volunteers. All persons are volunteers
except the parties to the contract and the offspring
of the wife.
Parties Within Scope of Marriage Settlements. — Those
having natural claims upon the parties, such as the wife
and offspring, and those claiming under or through them,
alone come within the scope of the marriage consideration.
The fact that collaterals are first mentioned in the limita-
tions of the articles does not bring them within the reach
and influence of the agreement. Merritt v. Scott, 6 Ga. 563.
Volunteers. — Where a court of equity executes articles
in favor of persons within the scope of the marriage con-
sideration, it will at the same time execute them also as
to volunteers. Merritt v. Scott, 6 Ga. 563; Vason v. Bell,
53 Ga. 416.
But where, upon application to a court of equity, the
marriage articles are executed partially, namely, in behalf
of one of the settlers, without being executed ag to the
volunteers, upon a subsequent application to a court of
equity, at the instance of volunteers, the former decree can
not be invoked in their favor. Merritt v. Scott, 6 Ga. 563.
Reformation. — Persons, though provided for in a mar-
riage settlement, if they are not parties to it, nor heirs at
law of parties thereto, and are not embraced within the
scope of the marriage consideration, can not have it re-
formed in a court of chancery. Cook v. Walker, 21 Ga.
3~0; Merritt v. Scott, 6 Ga. 563; Cartledge v. Curliff, 29
Ga. 758.
Parties. — Where the construction of a doubtful marriage
settlement is sought it is proper to make all persons, who
may have an interest under any possible construction of
the instrument, parties. Carswell v. Schley, 56 Ga. 101.
And if a bill is demurred to for want of equity, the court
will not dismiss it for want of proper parties (a trustee),
provided there be equity in the bill. Ferrill v. Perryman,
34 Ga. 576.
§ 3006. (§ 2487.) Valuable consideration. —
Marriage is a valuable consideration, and the wife
stands, as to property of the husband settled upon
her by marriage contract, as other purchasers for
value: Provided, that by such contract the husband
does not incapacitate himself from paying his ex-
isting just debts.
See § 4243.
Marriage is a valuable consideration and an innocent pur-
chaser on such consideration will be protected even against
subsequent bona fide purchaser. Nally v. Nally, 74 Ga.
669.
Marriage is sufficient consideration to support a deed.
And if the woman is guilty of no fraud, and enters into
the settlement without notice of a debt, due from the man
to a third party, she will be protected in the property con-
veyed by the settlement, against that debt. Marshall v.
Morris, 16 Ga. 368. See also Sheridon v. Sheridon, 153 Ga.
262, 111 S. E. 906.
§ 3007. (§ 2488.) Wife feme sole as to her sepa-
rate estate. — The wife is a feme sole as to her sepa-
rate estate, unless controlled by the settlement.
Every restriction upon her power in it must be
complied with; but while the wife may contract,
she can not bind her separate estate by any con-
tract of suretyship, nor by any assumption of the
debts of her husband, and any sale of her separate
estate, made to a creditor of her husband in extin-
guishment of his debts, shall he absolutely void.
I. In General.
A. Editor's Notes.
[7
B. Power of Married Woman to Contract in Gen-
eral.
II. Contracts of Suretyship.
A. Generally.
B. Conveyance to Secure Husband's or Son's Debts.
C. Original Undertaking.
III. Assumption of Husband's Debts.
A. In General. \
B. Existing Lien on Land.
C. Loan to Wife to Pay Debts of Husband.
IV. Sale to Creditor of Husband in Extinguishment of
Debt.
Cross References.
See 7 Cum. Dig. 37, 7 Enc. Dig. 1.21. For full treatment
of separate estates of married women, see 10 Cum. Dig.
221, 11 Enc. Dig. 472. For full treatment of suretyship
generally, see 10 Cum. Dig. 702, 12 Enc. Dig. 1.
I. IN GENERAL.
A. Editor's Notes.
See post, this note, "Generally," II, A.
History. — This section was enacted by the Code of 1863
and has retained its original form.
Effect of Married Woman's Act. — Prior to the married
woman's Act (Act 1866, p. 146) whether the wife's prop-
erty was her separate estate depended upon the marriage
contracts and settlements. Whenever there was a separate
estate created for her, the law treated her as a feme sole,
as to the property so embraced. The wife could then ' as
now, contract with respect to her separate estate, except
to make contract coming within the prohibited restrictions
above. Under the married woman's Act, the separate es-
tate of the wife depends, not upon marriage contracts and
settlements, but upon whether title passed to her. If she
owned the property at the time of her marriage, no change
in the title is effected by the marriage. Therefore, it is
obvious that the only effect of the Act of 1866 upon this
section was to enlarge the separate estate of married wo-
men; and this section was neither repeated or modified by
that act. It was said in Humphrey v. Capeland (54 Ga.
546) and approved in Webb v. Harris, (124 Ga. 723, 53 S.
E. 247), that "these restrictions upon the wife's power, im-
posed for her own benefit and protection, are perfectly con-
sistent with the Act of 1866 and the New Constitution,
(1868), which simply secured to the wife all her property
and make it her separate estate.
Purpose. — It was stated in Farmers, etc., Bank v. Eu-
banks (2 Ga. App. 839, 59 S. E. 193) that "these* restric-
tions were designed to protect the wife against the 'kicks
and kisses' of her husband, her conjugal leanings, the im-
portunities of her husband's creditors, and the pliant nature
of feminine character." But this law, although designated
for the protection of married women, has been construed
by the Supreme Court from the beginning in tender re-
gard to the rights and equities of innocent persons.
Wife as Administratrix — Anomaly of Sections. — There
seems to be an apparent anomaly between this section and
§ 3977 as to the capacity of the wife to be an administratrix
with another. The latter section declares that "if two or
more administrators unite in a common bond they are mu-
tual sureties for each other's conduct." But applying this
section, if one of the two administrators be a married wo-
man (and she is competent to serve in that capacity by §
3944) then her separate estate would not be liable for a
devastavit of her co-administrator, because she is not liable
on any contract of suretyship. See Wilson v. Wood, 127
Ga. 316, 318, 56 S. E. 457. See, however, § 3945.
Annotations Under This Section. — The notes of this sec-
tion and § 2993 should be read together. In the opinion of
the editor the construction to be placed upon the restric-
tions of this section is that the wife may not voluntarily
use her property for any extinguishment of her husband's
debts in any form, and § 2993 goes further and says that
her property may in no case be taken to satisfy the debts
of her husband. The citations have been treated accord-
ingly.
B. Power of Married Woman to Contract in General.
In General. — The wife may contract as to her separate
estate, with certain exceptions, enumerated in this section,
as a feme sole. Howard v. Simpkins, 70 Ga. 322. See also,
§ 2993 and notes thereto. And the section applies not only
to a separate estate of the wife created by deed, but to any
property held by her as "separate estate." Dunbar, etc.,
Co. v. Mize, 53 Ga. 435.
Contract Between Husband and Wife. — Under the pro-
visions of this section the wife is a feme sole as to her
separate property and if her husband has become indebted
to her in connection therewith, she may take a mortgage]
to secure her claim, and she will have the same rights as
72]
§ 2007
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 300/
against other creditors of the husband as if she were not
his wife; provided the debt so secured is a bona fide, sub-
sisting debt, and the transaction is without fraud. Comer
& Co. v. Allen, 72 Ga. 1. ,
Married Woman a Partner. — In this State a married wo-
man may engage in business as the partner of her hus-
band, and may pledge her separate property for the pay-
ment of the partnership debts. Vizard v. Moody, 119 Ga.
918/47 S. E- 348. See also, Harden v. Harden, 26 Ga. App.
192, 105 S. E. 869.
Contract of Hire for Benefit of Husband. — Under this sec-
tion a wife may, upon her own responsibility and volun-
tarily, enter into a contract with another to render serv-
ices for her husband and for his benefit, and from which
she may receive no personal benefit; and for the value cf
such services she may be held liable under her contract.
Wimpee v. McHenry, 18 Ga. App. 475, 89 S. E. 607.
II. CONTRACTS OF SURETYSHIP.
A. Generally.
Editor's Note. — It may be safely asserted that there is
no matter of public policy more firmly fixed in this state
than that which outlaws a contract of suretyship, on the
part of the wife, of any debt of the husband from her
separate estate. In Woolen Co. v. Magill, (155 Ga. 555, 117
S. E. 657) Chief Justice Russell, in answer to a query from
the court of appeals says: the question whether there is any
conceivable instance which the laws of Georgia will aid in
the enforcement of an obligation of suretyship would be
answered in the negative.
Therefore, pursuant to the provisions of this section, it is
held that a married woman can not make any contract of
guaranty or suretyship. Thompson v. Wilkinson, 9 Ga.
App. 367, 71 S. E. 678; Blackburn v. Lee, 137 Ga. 265, 7 S.
E. 1; Hester v. Dreyer, 19 Ga. App. 816, 92 S. E. 299. For
an exhaustive collection of cases, see 7 Enc. Dig. 50, 7 Enc.
Dig. 148.
Applies to All Contracts. — And this restriction applies to
all contracts whether in behalf of her husband or another.
Saulsbury Co. v. Weaver, 59 Ga. 254.
Test as to What Constitutes Suretyship Contract.— Where
an arrangement makes a married woman ultimately liable
to pay the debt of another, such an arrangement falls with-
in the provisions of this section condemning contracts of
suretyship by a married woman. Nat. Bank v. Smith, 142
Ga. 663, 83 S. E- 526; Milton v. Sibge, 146 Ga. 26, 90 S.
E. 469.
Voidable at Wife's Election Only. — Contracts of surety-
ship and payment or transfers of property by a wife to a
creditor as obligations or payments for the indebtedness oi
the husband, which are declared "absolutely void" by this
section are "not illegal, but merely void or voidable at her
election as against the original payee," the legislative in-
tent being "only that such contracts of the wife should be
unenforceable." Colquitt v. Dye, 29 Ga. App. 247, 114 S. E.
643; Palmer Co. v. Smith, 88 Ga. 84, 13 S. E. 956.
Wife Fraudulently Induced to Go Surety — Damages. —
When a married woman was fraudulently induced to sign a
note as coprincipal with another, when her undertaking was
one of suretyship only, upon the express understanding that
she should never be liable to pay the same, and that she
was compelled by suit to pay the note to an innocent pur-
chaser who acquired title to same bona fide, she may re-
cover damages of the party so fraudulently inducing her.
Jones v. Crawford, 107 Ga. 318, 33 S. E. 51.
Conflict of Law — Comity Not Granted. — Where the stat-
ute law of another state provides that "a married woman
is liable upon her contract of suretyship" a contract made
under such a statute will not be enforced in this state, as
being contrary to the public policy of the state, as expressed
in this section. Sally v. Bank of Union, 150 Ga. 281, 103
S. E. 460; Ulman, etc., Co. v. Magill, 155 Ga. 555, 117 S. E
657. For full treatment of conflict of law generally, see 3
Cum. Dig. 792, 3 Enc. Dig. 228.
Pkrol Evidence Admissible to Prove. — It may be shown
by parol evidence that the married woman signed the con-
tract as surety. Colt Co. v. Miller, 30 Ga. App. 148, 117 S. E.
113. See § 3556.
No Special Plea Required. — Where the plaintiff himself
proves the contract sued upon to be one of suretyship on
the part of a married woman, (one of the defendants in the
action), no special plea is requisite to make the evidence
available for her defense. Saulsbury, etc., Co. v. Weaver.
59 Ga. 254.
B. Conveyance to Secure Husband's or Son's Debts.
In General. — A conveyance or mortgage of the wife's land
to secure the husband's debt is void. Cambell v. Murray,
62 Ga. S6; Dunbar v. Mize, 53 Ga. 435; Gass v. Whitely.
[7
128 Ga. 79, 57 S. E. 94. For other cases, see 7 Cum. Dig.
52, 7 Enc. Dig. 153.
And where a wife executes her notes to a creditor of her
husband, to pay the husband's debt to such creditor, and
makes the creditor a deed to her realty and a bill of sale to
her personalty to secure them, under this section sue!)
transaction is void; and the wife can proceed by lier peti-
tion in equity to cancel such deed and bill of sale as clouds
upon her title, and to cancel her notes so given in pay-
ment of her husband's debt. Jackson v. Reeves, 156 Ga.
802, 120 S. E. 541.
But, as stated above, such a conveyance is voidable at
the election of the wife only. See ante, this note, "Gener-
ally," II, A.
To Secure Garnishment Bond. — Where suit was brought
against a husband and wife jointly and a garnishment was
issued and served, and in order to secure a surety on the
bond to dissolve the garnishment, the wife conveyed her
separate property to him, and he thereupon became the
surety both of herself and husband, it was held that her
deed amounted to a conveyance to indemnify the surety of
her husband and pursuant to the provisions of this section
was invalid. Beatie v. Calhoun, 73 Ga. 269.
Notice. — Notice that a married woman who has conveyed
is still the owner without more, is enough to put a stranger
on inquiry into the facts. Sutton v. Aiken, 62 Ga. 734.
And where a lender took a deed from a married woman
with knowledge that she was conveying her land to secure
her husband's debt, she could recover the land from him,
and her deed would not estop her from so doing. Ruffin v.
Paris, 75 Ga. 653.
Conveyance to Extinguish Debts of Law. — If a married
woman conveyed land to her son for the purpose of enab-
ling him to pledge it to a third person as security for a
debt due, or to become due, to that person by the son, and
this was a mere colorable transaction growing out of a
scheme suggested by the creditor in order to make her in
fact a surety for the son's debt, although she did not be-
come nominally bound therefor, the transaction was, as to
her, contrary to law, and void. National Bank of Athens
v. Carlton, 96 Ga. 469, 23 S. E. 388. See also Blackburn v.
Lee, 137 Ga. 265, 266, 73 S. E. 1.
If, on the other hand, there was no element of surety-
ship in the transaction, and the mother deliberately con-
veyed the land to the son simply to enable him to secure
thereby his own debt, she was bound by her deed. And
this same analogy would be true where the mother exe-
cuted a note for the payment of her son's debts. The test
being whether it was upon her own credit. National Bank
of Athens v. Carlton, 96 Ga. 469, 23 S. E. 388.
Question for Jury. — It is a question for jury determina-
tion whether a deed is an absolute gift or a part of a color-
able scheme to secure her husband's debts. Hawkins v.
Kimbrell, 158 Ga. 760, 124 S. E. 351; Colquitt v. Dye, 29 Ga.
App. 247, 114 S. E. 643, citing principal cases.
Defense Personal to Wife. — As the plea of coverture is
a personal privilege, available only to the feme covert or
her privies in blood or estate, a mere creditor of a mar
ried woman, even in case of her insolvency, can not attack
a mortgage executed by her, upon the ground that it was
given to secure the debt of her husband and son. Hawes v.
Glover, 126 Ga. 305, 55 S. E. 62; Taylor v. Allen, 131 Ga.
416, 62 S. E. 291.
It follows from this section that it is not for the pro-
tection of a man sui juris who takes a deed from her and
warrants the title to another. Taylor v. Allen, 131 Ga. 416,
419. 62 S. E. 291.
Promissory Notes — Protection of Bona Fide Holder. —
See post, this note, "In General," III, A.
Ejectment to Recover. — A wife who has made a deed of
conveyance to settle the debts of her husband can recover
in an action of ejectment without filing equitable pleadings
for the cancellation of such deed. Taylor v. Allen, 112 Ga.
330, 37 S. E. 408; Band v. Sullivan, 133 Ga. 160, 65 S. E-
376.
C. Original Undertaking.
Test. — In all the cases where a wife has been held liable
on her contract, her liability was primary and not second-
ary. Gross v. Whitely, 128 Ga. 79, 82, 57 S. E. 94.
Promissory Notes. — A wife is liable on notes signed by
the husband and wife as joint makers, according to the face
of the notes, and given for a loan for the benefit of the
wife or for the joint benefit of the husband and wife.
Harden v. Harden, 26 Ga. Apo. 192, 105 S. E. 869.
Goods Furnished Another. — While a married woman may
not contract a debt of suretyship that will bind her, she
may, as an original undertaker, become liable for goods
furnished to another from which she derives no personal
benefit. Hester v. Dreyer, 19 Ga. App. 816, 92 S. E. 299.
Extinguishing Debts cf Another. — While under this sec-
7?>
3007
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 3007
tion a married woman can not bind her separate estate by
any contract of suretyship, yet she may extinguish the
debts of her son, or cause them to be extinguished, on her
own credit, as an original undertaking, with a mortgage
upon her property as security for the performance of her
own contract. Tindol v. Breedlove, 19 Ga. App. 73, 90 S.
E. 977.
Assumption of Contract.— Where the husband rented land
and his wife attempts to give her note for her husband's
obligation, but later the rental contract is rescinded and
the wife enters into a, new contract to rent the same land;
this is an original undertaking on the part of the wife and
does not come within the prohibitory provisions of this
section. Burgess v. Torrence, 23 Ga. App. 193, 98 S. E.
170. See also International Harvester Co. v. Simmons, 22
Ga. App. 359.
HI. ASSUMPTION OF HUSBAND'S DEBTS.
A. In General.
General Rule.— It follows from this section that a mar-
ried woman can not bind her separate estate by any as-
sumption of the debts of her husband. Gross v. Whitely,
128 Ga. 79, 57 S. E- 94; Farmers, etc., Bank v. Eubanks, 2
Ga. App. 839, 59 S. E. 193. For other cases, see 7 Cum.
Dig 53, 7 Enc. Dig. 157. And a deed made for such pur-
pose is void. Gilmore v. Hunt, 137 Ga. 272, 73 (S. E. 364.
The creditor who receives money from the wife's separate
estate, in payment by the husband's estate acquiring no
title. Humphrey v. Copeland, 54 Ga. 543.
A mortgage given by a wife upon her own property in
settlement of a debt of her husband is not binding upon
her, although she may have given the mortgage under the
impression that the creditor holding this debt could for
some reason subject the property in question to its pay-
ment, and intended by giving the mortgage to effect a
compromise of what she regarded as a doubtful claim
against the property. First National Bank v. Bayless, 96
Ga. 684, 23 S. E. 851.
After Husband's Death.— This section does not effect the
power of a widow to contract with reference to debts of
her husband after his death. Thorpe v. Thorpe, 54 Ga.
501; Walker v. Walker, 139 Ga. 547, 77 S. E. 795; Booker
v. Small, 147 Ga. 566, 94 S. E. 999; Brazell v. Hearn, 33 Ga.
App. 490, 127 S. E. 479.
Where Part of Consideration Wife's Debt.— If a married
woman signs a promissory note the consideration of which
is partly her own debt and partly the debt of her husband,
the payee can recover in a suit on the note that portion
which was based upon the debt of the wife, the amount of
her debt and of that of the husband being clearly shown
by the evidence. Jones v. Harrell, 110 Ga. 373, 35 S. E.
690.
Same— Contract Not Divisible.— But sale by the wife of
her separate estate, made to a creditor of her husband in
extinguishment of her husband's debt in part and in set-
tlement of the wife's debt in part, the contract being entire
and not divisible, is under this section void. Cross v.
Cordell, 149 Ga. 383, 100 S. E- 365; James v. Greene, 152
Ga. 814, 111 S. E. 187. See also Cambell v. Trumnell, 67
Ga. 518. As to when contracts entire and when divisible, see
§ 4228, and notes thereto.
Validity of Indirect Method of Assuming Husband's Debts.
—Pursuant to the provisions of this section a wife has the
right to repudiate a colorable scheme or device by which
she was induced by the creditor and her husband to as-
sume the previous debt of her husband to such creditor
without any consideration flowing to her, no matter how
the true inwardness of such illegal and void transaction
had been concealed. Jackson v. Reeves, 156 Ga. 802, 120 S.
E. 541. For other cases, see 7 Cum. Dig. 53.
Promissory Note — Merely Avoidable. — A promissory note
given by a married woman for the purpose of paying her
husband's debt is not illegal, but merely void or voidable
at her election as against the original payee. Jones v.
Harrell, 110 Ga. 373, 35 S. E. 690. As to power of married
woman to execute a promissory note, see note to § 2993.
Bona Fide Holder Protected. — While a married woman
can not legally become a security for another's debt, yet
where she has signed a negotiable note with another, as a
joint maker, for the purpose of securing the debt of the
latter, and it has been transferred to a bona fide purchaser
for value before due and without notice, it is valid, and
binds her. Howard v. Simpkins, 70 Ga. 322; Farmers, etc..
Bank v. Eubanks, 2 Ga. App. 839, 59 S. E. 193. But see
March, Price & Co. v. Clark, 9 Fed. 753, where it
was held that a negotiable instrument was subject to
fense that the consideration of same was the assumptic
husbands debts even in the hands of bona fide holder.
Note.
But by virtue of the construction placed upon this section
a holder who took the note after due is not protected.
Strauss v. Friend, 73 Ga. 782.
The words, "shall be absolutely void" shall not be con-
strued literally against rights of bona fide purchasers. In-
surance Co. v. Toney, 1 Ga. App. 492, 497, 57 S. E. 1013.
Property Held in Trust for Husband and Wife. — Pur-
suant to the provisions of this section where a husband set-
tled property on his wife free from all his liabilities, ex-
cept such incumbrances as the two together shall request
the trustee to make, a mortgage given thereon to secure a
debt of the husband is valid. Aetna Ins. Co. v. Brodinax,
48 Fed. 892; 128 U. S. 236, 9 S. Ct. 61.
Assignment of Insurance Policy. — Where a husband
made a policy of life insurance payable to his wife at his
death, it became her property, and if she transferred it to
a creditor of her husband to secure his debt, such transfer
was void; and if, after his death, without any other con-
sideration, she ratified such transfer, it would still be void,
and the ratification would not render it valid. Smith v.
Head, 75 Ga. 755.
Estoppel. — Where the wife was the beneficiary in an in-
surance policy and she jointly with her husband assigned
the policy to a creditor of the husband to secure his debts,
the wife is not estopped from attacking the validity of the
assignment, for the reason that, under this section she could
not lawfully assign even her expectancy under the policy
during his life to secure his debt, and because she had no
such vested interest in the policy with respect to which
she could contract. Farmers Bank v. Kelley, 155 Ga. 733,
113 S. E. 197.
Where a married woman gave a mortgage upon her sepa-
rate estate to secure a note made by her husband, and the
mortgage recited that the debt for which the note was
given was contracted for the benefit of the wife and family,
it was held that the wife was not estopped by this recital
from showing that the same was untrue, and that the debt
was wholly her husband's debt. Dunbar, etc., Co. v. Mize,
53 Ga. 435.
B. Existing Lien on Land.
Assumption of Lien in Purchasing Property. — There is no
reason why a married woman who buys property from her
husband with a lien on it may not assume such lien; pay-
ment of a debt so assumed can be enforced against" her
without contravening the provisions of this section. Vizard
v. Moody, 119 Ga. 918, 47 S. E- 348; Taylor v. American
Freehold Co., 106 Ga. 238, 32 S. E. 133; Lomenstein v.
Meyer, 114 Ga. 709, 40 S. E. 726. For full treatment, see
7 Cum. Dig. 56, 7 Enc. Dig. 159.
C. Loan to Wife to Pay Debts of Husband.
General Rule. — In the absence of fraud or collusion, a
married woman may borrow money (the husband's creditor
not being the lender) to furnish to her husband, in order
that he may pay his debts, notwithstanding the lender or
purchaser knows of such purpose. Jackson v. Reeves, 156
Ga. 802, 120 S. E- 541; Third Nat. Bank v. Poe, 5 Ga. App.
113, 62 S. E. 826. For other cases supporting this paragraph,
and also for a full treatment of the subject, see 7 Cum.
Dig. 56, 7 Enc. Dig. 160.
Where lender is not husband's creditor nor party to a
scheme between husband and wife to the borrowing of
money to pay her husband's debts, pursuant to the con-
struction placed upon this section, the transaction is valid.
Road v. Wright, 124 Ga. 848, 53 S. E. 390; Cline v. Mill-
edgeville Banking Co., 131 Ga. 611, 62 S. E- 984.
Lender Husband's Creditor. — But if the lender is the hus-
band's creditor and makes the loan to the wife for the pur-
pose of paying the husband's debt to him, the transaction
falls within the construction of this section. Ginsbery v.
Peoples Bank, 145 Ga. 815, 89 S. E. 1086.
Gift to Husband. — And where the wife borrows money and
gives it to her husband it is not an assumption of his debts.
Suint v. Milner Banking Co., 30 Ga. App. 733, 119 S. E.
336; Gross v. Whitely, 128 Ga. 79, 82, 57 S. E. 94. As to
gifts between husband and wife, see § 3010.
The knowledge of the lender of her object in borrowing
and of the use intended to be made of the money, will not
affect the validity of the transaction. McCrory v. Grandy
& Son, 92 Ga. 319, 18 S. E. 65. But see White v. Stacker,
85 Ga. 200, 11 S. E. 604. And see 7 Enc. Dig. 160.
Illustration. — Where certain securities on the bond of a
tax-collector borrowed money from a bank and loaned it to
the wife of the tax-collector, who paid it to the county in
settlement of a shortage due the county by the collector,
and the wife executed a mortgage to the sureties on her
to secure the payment of the money thus loaned, such
nsaction would come within the provisions of this sec-
and is therefore void. Sharpe v. Denmark, 143 Ga.
4 S. E. 554.
§ 3008
MARRIAGE CONTRACTS AND SETTLEMENTS
§ 3009
IV. SALE TO CREDITOR OF HUSBAND IN EX-
TINGUISHMENT OF HIS DEBT.
General Rule. — Under this section a married woman can
not sell her property in extinguishment of her husband's
indebtedness. Goss v. Whitely, 128 Ga. 79, 57 S. E. 94;
Sharpe v. Denmark, 143 Ga. 156, 84 S. E. 554; Webb v.
Harris, 124 Ga. 723, 53 S. E. 247. For other cases, see 7
Cum. Dig. 58, 7 Enc. Dig. 161.
Applies to Money and Property. — This section in declar-
ing a sale void when made by the wife to "a creditor of the
husband in payment of his debt, comprehends, in its reason
and spirit, a transaction in money, as well as a transaction
in property. Humphrey v. Copeland, 54 Ga. 543.
Creditor Taking With Knowledge. — When a husband, for
the purpose of paying his debt, sells to the creditor per-
sonal property of his wife, and the creditor knows at the
time that the property belongs to the wife such creditor
acquires no title thereto, although the wife assented to the
sale or transfer. Grant v. Miller, 107 Ga. 804, 33 S. E-
671, citing principal case.
§ 3008. (§ 2489.) Minority of party to contract.
— The minority of either party to marriage articles,
or a marriage contract, shall not invalidate it: Pro-
vided, such party is of lawful age to contract
marriage.
See § 4236.
§ 3009. (§ 2490.) Sale to husband or trustees. —
No contract of sale of a wife as to her separate
estate with her husband or her trustee shall be
valid, unless the same is allowed by order of the
superior court of the county of her domicle
[domicile].
Editor's Note. — This section was incorporated in the Cod^
of 1863 and has retained its original form. It is obvious
that the purpose of the section was to protect the separate
estate of married women and therefore it is not affected by
the Married Woman's Act (1866, p. 146). This section is not
applicable to a loan, because a loan is not a sale, (see
Turner v. Woodward, 133 Ga. 467, 66 S. E. 160). And it
can not apply to a gift (see Cain v. Legon, 71 Ga. 692). Tt
was said in Humphrey v. Copeland, 54 Ga. 543 that "al-
though the word 'sale' does not in the letter comprehend a
transaction in which money alone passes, yet with respect
to its effect upon the wife's estate it would be the same"
and that "money is clearly within the spirit and restriction
upon the wife's power." Hence, it would seem that a
transfer of the husband's property to the wife when pay-
ment for the same was from the wife's separate estate
would constitute a transaction within the restriction of
this section. And see notes to § 3007.
The policy of this section is to declare invalid every sale
made by a wife to her husband, whatever may be the form
of the transaction. The law looks to the essence of the
transaction, and the wife will not be estopped even by her
solemn deed to dispute that the real contract was a sale.
Dunbar v. Mize, 53 Ga. 435; Gordon v. Harris, 141 Ga. 24,
SO S. E. 276.
Absolutely Void. — Under this section, a sale by a mar-
ried woman to her husband without being allowed by an
order of the superior court of the county of her domicile
is not only voidable but void. Echols v. Green, 140 Ga.
678, 79 S. E. 557. For other cases, see 7 Cum. Dig. 70, 10
Cum. Dig. 224.
Deed as Color of Title — Prescription. — A deed from a
wife to her husband, though void, will serve as color to
title; the possession of the husband, however, can not be
adverse if the husband and wife are living together. At-
lantic Coast Iyine R. Co. v. Williams, 5 Ga. App. 647, 63 S.
E. 671; Carpenter v. Booker, 131 Ga. 546, 62 S. E. 983.
And if the husband should induce his wife to sell her land
to him, and both should continue to live on the land for
seven years, in such a case it would circumvent the stat-
ute to hold that the husband's possession would ripen into
a prescriptive title. Carpenter v. Booker, 131 Ga. 546, 548,
62 S. E. 983.
Also, a deed from a wife to her husband, unless approved
by the superior court as provided by this section, will not
confer upon the husband such a title as will comply with
the condition of a fire-insurance policy that it is to be void
if the insured does not hold the property by an uncondi-
tional fee-simple title. American Ins. Co. v. Bagley, 6 Ga.
App. 736, 65 S. E. 787.
Deed to Secure Debt — Reconveyance. — A wife may be a
creditor of her husband and may take from him a deed to
[775 ]
land to secure the debt. On payment of the debt the wife
may reconvey the land to the husband. Such a transaction
is not a sale of the wife's separate estate to the husband
under the provisions of this section. Turner v. Woodward,
133 Ga. 467, 66 S. E. 160.
And where a wife conveyed land to her husband the hus-
band conveys to a creditor to secure a debt with a power
of sale, and a sale is made under the power, and the wife
voluntarily yielded possession to the purchaser, it was held
that the wife is not entitled to recover from her husband's
creditor the proceeds of such sale. Buckannan v. James,
135 Ga. 392, 69 S. E. 543.
But a transfer by a married woman to her husband of a
bond for titles, upon the consideration that he carry out
her obligation as to the payment of the debt therein referred
to, is a sale by the married woman of her separate
property, and is invalid in the absence of an order of the
superior court of her domicile, allowing the same. Webb
v. Harris, 124 Ga. 723, 53 S. E. 247.
Sales Made During Separation. — The provision of this
section makes no exception, and applies to sales by the
wife of her separate estate to her husband while they are
living in a state of separation, as well as while they are
living together. Echols v. Green, 140 Ga. 678, 79 S. E. 557.
Same — Estoppel. — A deed of sale between husband and
wife being void, the wife will not be estopped, as against the
husband, from setting up that it is void, on account of the
circumstances that the deed, which conveys the property
to her husband, reserving a life-estate to herself, was exe-
cuted while the husband and wife were living in a state of
separation, and that she received a consideration. Echols
v. Green, 140 Ga. 678, 79 S. E. 557.
Settlement of Dower as Sale. — An agreement by a wife
to accept certain land from her husband, still in life, in
lieu of dower, is, in effect, a sale by the wife to the hus-
band. Butts v. Trice, 69 Ga. 74.
Effect of Fraudulent Transaction. — When the husband,
for the purpose of defeating his existing creditors, caused
the title to realty purchased with his means to be made to
his wife, the transaction, as between these two, was valid,
and pursuant to the provisions of this section a subsequent
conveyance by her of the property to him, executed in
consideration of the assumption by him of her debt, was a
sale of her separate estate to him, and void unless author-
ized by an order of the superior court of the county of her
domicile. Flannery v. Coleman, 112 Ga. 648, 37 S. E. 878.
As to fraudulent sales and conveyances generally, see 6
Cum. Dig. 477, 6 Enc. Dig. 610.
A wife, acting as administrator, can not sell to her hus-
band property belonging to the estate to be administered.
Lowery v. Idleson, 117 Ga. 778, 45 S. E. 51. The holding in
this case was by analogy to this section, the court stating
that as the wife could not, under this section sell her prop-
erty to her husband, for similar reasons she should not be
allowed to sell to him the property of others. Ed. Note.
Deed Reciting Consideration Constitutes Sale on Face. —
Where a deed from a wife to her husband, shown, in effect,
to be a gift to the husband and recites a "further considera-
tion of five dollars cash in hand paid," such deed upon its
face is a contract of sale by the wife to her husband. Martin
v. White, 115 Ga. 866, 42 S. E. 279; Shackelford v. Arris,
135 Ga. 29, 68 S. E. 838; Rich v. Rich, 147 Ga. 488, 94 S.
E- 566. See also Gordon v. Harris, 141 Ga. 24, 80 S. E. 276.
Therefore, it was error, as shown by the cases above
cited, to sustain a demurrer to a petition to cancel such a
deed. But as shown by the notes to § 3010, parol evidence
is admissible to prove that a deed apparently founded on
valuable consideration is a gift. Ed. Note.
Evidence having been submitted tending to show the
deed to be one of gift, the court committed no error in
admitting it in evidence over objection that it showed on
its face that it was a deed of bargain and sale of the wife's
private property and it did not appear that it had been al-
lowed by the superior court of her domicile. Shackelford
v. Orris, 135 Ga. 29, 68 S. E. 838.
Ratification of Sale. — The wife having no power to con-
sent to the application of her money to her husband's debts,
has no power to ratify such application, even on compensa-
tion being made to her by her husband in property, with-
out the al!owance or approval of a court of chancery, or of
the superior court of the county of her domicil. Chappell
v. Boyd, 61 Ga. 662. See note to § 3007.
Cancellation. — A court of equity may cause a deed, made
in contravention of this section, to be delivered up and
cancelled. Fulgham v. Pate, 77 Ga. 454; Chappell v. Poyd,
61 Ga. 662. See to the same effect, Echols v. Green, 140 Ga.
578, 79 S. E. 557. And though ten years have elapsed the
wife will not be charged with laches in moving to cancel.
S. C, 140 Ga. 678, 79 S. E. 557.
Who May Attack.— Even if a deed from a husband to a
§ 3010
LEGITIMATE CHILDREN
§ 3012
wife, conveying land for a money consideration, is invalid
under this section the right to assail its validity on this
ground is personal to the wife and her privies in blood or
estate, and can not be asserted by a stranger to her title.
Scaife v. Scaife, 134 Ga. 1, 67 S. E. 408; Munroe v. Bald-
win, 145 Ga. 215, 88 S. E- 947; Williams v. Rhodes, 149 Ga.
170, 99 S. E. 531.
Jurisdiction to Grant Order in Vacation. — The judge of
the superior court of the county of the wife's domicile has
no jurisdiction to grant the order required by this section
in vacation, and a contract of sale made in pursuance of
such vacation order is void. Frank v. McEachin, 148 Ga.
858, 98 S. E. 497. Citing Roland v. Roland, 131 Ga. 579, 582,
62 S. E. 1042.
§ 3010. (§ 2491.) Wife may give to husband. —
A wife may give property to her husband, but a
gift will not be presumed. The evidence to sup-
port it must be clear and unequivocal, and the in-
tention of the parties must be free from doubt.
Cross References.— See 7 Cum. Dig. 70, 7 Enc. Dig. 175.
For full treatment of gifts generally, see 6 Cum. Dig. 651,
6 Enc. Dig. 764. As to fraudulent and voluntary con-
veyances generally, see 6 Cum. Dig. 477, 6 Enc. Dig. 610.
History. — This section is a codification of the principles
laid down in Brooks v. Fowler (82 Ga. 329, 9 S. E. 1089).
This case was decided in the March term of 1889. And the
section first appeared in the Code of 1895. Ed. Note.
Gifts Subject to Careful Scrutiny. — A gift between hus
band and wife will be scrutinized with great jealousy, and
upon the slightest evidence of persuasion or influence, will
be declared void, at the instance of the donor or her legal
representative, at any time within five years after the
making thereof. Cain v. Ligon, 71 Ga. 692; Sasser v. Sas-
ser, 73 Ga. 275.
No Approval Required — Parol Evidence. — A deed of gift
from a wife to her husband does not require the- approval
of the judge of the superior court, in order to pass a valid
title. Parol evidence is admissible to show that a deed
apparently founded on a valuable consideration is in fact
a deed of gift. American Ins. Co. v. Bagley, 6 Ga. App.
736, 65 S. E. 787; Rowland v. Rowland, 131 Ga. 579, 62 S.
E. 1042; Frank v. McEalchin, 148 Ga. 857, 98 S. E. 495. For
other cases, see 6 Cum. Dig. 658.
The wife may borrow money and give it to her husband,
although the lender knows that the husband is to have the
use of the same. Gross v. Whitely, 128 Ga. 79, 82, 57 S. E-
94. As to loans to wife to pay debts of husband, see notes
to § 3007.
Deed Reciting Consideration Prima Facie Sale.— See notes
to § 3009.
Evidence. — There must be clear an unequivocal evidence
that the transaction between the husband and wife was a
gift and not a sale. See Frank v. McEachin, 148 Ga. 858,
98 S. E. 497.
Ratification of a deed of gift may operate as an estoppel,
and not merely as an admission, after it has been acted
upon as affording security for money advanced upon the
faith of it. Hadden v. Earned, 87 Ga. 634, 13 S. E. 806.
Burden of Proof. — Burden is upon husband and wife to
show that the transaction was fair, see note to § 3011.
It is a question of fact whether or not a deed is an ab-
solute gift or part of a colorable scheme to secure husband's
debt. Hawkins v. Kimbrell, 158 Ga. 760, 124 S. E- 351.
§ 3011. (§ 2492.) A married woman may
contract; presumptions. — A married woman may
make contracts with other persons; but when a
transaction between husband and wife is at-
tacked for fraud by the creditors of either, the
onus is on the husband and wife to show that
the transaction was fair. If the wife has a sepa-
rate estate, and purchases property from other
persons than her husband, and the property is
levied on as the property of the husband, the
onus is upon the creditor to show fraud, or that
she did not have the means wherewith to pur-
chase the property.
Cross References.— See 7 Cum. Dig. 68. As to fraudulent
transfers between husband and wife see § 3224 and note
thereto. As to power of wife to contract, see §§ 2993, 2996,
2997, 30G7, 3009 and notes thereto. '
This section was applied in Pope v. Bennett, 157 Ga. 357,
121 S. E- 333; Gill v. Willingham, 156 Ga. 728, 120 S. E. 108;
Simmons v. Realty Investment Co., 160 Ga. 99, 127 S. E.
279.
In the following cases the evidence was held sufficient
to charge as to the burden of proof and issue of fraud.
Strickland v. Jones, 131 Ga. 409, 62 S. E- 322; Mitchell v.
Nixon, 148 Ga. 596, 97 S. E. 528; Jenkins v. Flournoy, 157
Ga. 618, 122 S. E. 304; Durden v. Royster, etc., Co., 158
Ga. 234, 123 S. E. 603; Brand v. Bagwell, 133 Ga. 750, 66
S. E. 935; Adams v. First Nat. Bank, 147 Ga. 470, 94 S-
E. 568.
CHAPTER 2.
Of Parent and Child.
For full treatment, see 9 Cum. Dig. 155, 10 Enc. Dig. 54.
ARTICLE l.
Legitimate Children.
§ 3012. (§ 2493.) Legitimate children.— All
children born in wedlock, or within the usual
period of gestation thereafter, are legitimate.
The legitimacy of a child thus born may be dis-
puted. Where possibility of access exists, ex-
cept in cases of divorce from bed and board, the
strong presumption is in favor of legitimacy,
and the proof should be clear to establish the
contrary. If pregnancy existed at the time of
the marriage, and a divorce is sought and ob-
tained on that ground, the child, though born in
wedlock, is not legitimate. The marriage of the
mother and reputed father of an illegitimate
child, and the recognition of such child as his,
shall render the child legitimate; and in such
case the child shall immediately take the sur-
name of his father.
Cross References.— As to legitimation of colored children
born prior to 9th day of May 1866, see § 2180. As to
legitimacy of issue of void marriages, see § 2935. As to
effect of total divorce upon children of the marriage, see
§ 2963.
Law Favors Legitimation. — The law favors marriage,
and likewise the legitimizing of children, where it can be
done with safety to society. Harrison v. Odum, 148 Ga.
489, 96 S. E. 1038.
"Children," as a general rule, mean legitimate children.
Hicks v. Smith, 94 Ga. 809, 22 S. E- 153.
Recognition. — Where a man had a living wife and enters
into a ceremonial marriage with another woman who had
no knowledge of the first marriage, and there is issue of
the second marriage, such issue becomes legitimated by
cohabitation as recognition of the parties after the death
of the first wife. Smith v. Reed, 145 Ga. 724, 89 S. E. 815.
Evidence held sufficient to find that the father and mother
subsequently married and that the father recognized the
child. Harrison v. Odrum, 148 Ga. 489, 96 S. E. 1038.
Presumption of Legitimacy — Rebuttal. — The presumption
of legitimacy of children born in wedlock can be overcome
by clear and convincing proof, the common law doctrine not
being of force in Georgia. Harris v. Shelton, 151 Ga. 615,
618, 107 S. E. 842. See also, Jones v. State, 11 Ga. App.
760, 76 S. E. 72.
Where the husband and wife have had the opportunity
of sexual intercourse, a very strong presumption arises,
that the child in question is the fruit; but it is only a very
strong presumption, and no more. Wright v. Hicks, 15 Ga.
160.
The jury may not only take into their consideration,
proof tending to show the physical impossibility of the
child, born in wedlock, being legitimate; but they may de-
cide the question of the paternity by attending to the re-
lative situation of the parties, their habits of life, the evi-
dence of conduct, and of declaration connected with con-
duct, and to any induction which reason suggests, for de-
termining upon the probabilities of the case. Wright v.
Hicks, 15 Ga. 160.
Same — Ante-Nuptial Conception. — In question of illegiti-
macy, in cases of ante -nuptial conception, slighter proof is
required to rebut the presumption of legitimacy, arising
from subsequent marriage, than in cases of post-nuptial
conception. Wright v. Hicks, 15 Ga. 160.
Who May Question Legitimacy. — The question of legiti-
[ 776 ]
§ 3013
LEGITIMATE CHILDREN
§ 3016
macy may be made by any one whose right it is to con-
test. Wright v. Hicks, 12 Ga. 1SS.
Lex Loci Governs in questions of legitimation proceed-
ings. Eubanks v. Banks, 34 Ga. 407.
§ 3013. (§ 2494.) Legitimacy by order of
court.— A father of an illegitimate child may
render the same legitimate by petitioning the su-
perior court of the county of his residence, set-
ting forth the name, age, and sex of such child,
and also the name of the mother; and if he de-
sires the name changed, stating the new name,
and praying the legitimating of such child. Of
this application the mother, if alive, shall have
notice. Upon such application, presented and
filed, the court may pass an order declaring said
child to be legitimate, and capable of inheriting
of the father in the same manner as if born in
lawful wedlock, and the name by which he or
she shall be known.
As to rights of mother if the father does not legitimate
child, see § 3028. As to mode of adopting children of others
than parents, see § 3016.
Editor's Note This section was taken from the acts of
1856. The purpose of this act, as expressed in its title, was
to "prescribe the manner in which persons born illegitiate
should be made legitimate." In the leading case of Hicks
v. Smith, (94 Ga. 809, 22 S. E. 153), the court in construing
this section says that the words "upon such application,
presented and filed, the court may pass an order declaring
said child to be legitimate" do not have the effect to render
legitimate a bastard child according to the full significance
of that term, but only the effect to render him so far
legitimate as will enable him to inherit from his father.
In Shelton v. Wright, (25 Ga. 636) the holding is contra'
to the rule as stated in the Hicks Case; but the Shelton
Case was decided under one of the many temporary legiti-
macy statutes which had the word "fully" before the word
"legitimate" and the court construed this to remove all
disabilities of illegitimacy. The word "fully" was omit-
ted from the act of legitimation from which this section
was codified. In the opinion of the editor it was the legis-
lative purpose to give the reputed father of a bastard child
the opportunity to made reparation, as far as possible, for
the wrong he had done the unfortunate and innocent off-
spring of his lustful desire. And, if it had been the inten-
tion of the legislature to render the bastard child capable
of inheritance in all instances the words "and capable of
inheriting of the father in the same manner as if born in
lawful wedlock" would be surplusage and no such con.
struction can be placed upon this section. For further
editorial comment upon the status of a bastard child, see
§ 3029.
§ 3014. (§ 2495.) Manner of changing names.
— Any person desirous of changing his or her
name, and the names of his or her children, may
present a petition to the superior court of the
county of their residence, setting forth fully and
particularly the reason why such change is
asked, which shall be sworn to by the petitioner,
and said petition shall be placed on the proper
docket in the suoerior court, and shall be acted
on by the presiding judge any time at or after
the second term following its being filed. Acts
1875, p. 103.
For full treatment of names generally, see 8 Cum. Dig.
189, 9 Enc. Dig. 553.
§ 3015. (§ 2496.) Judge may pass order. —
Said judge shall, on hearing said petition, if the
petitioner has made such a case as, in his opin-
ion and discretion, would be proper, pass an or-
der authorizing said change: Provided, nothing
herein shall ever operate to authorize any per-
son, or persons, to change their name with a
view to fraudulently deprive another of any le-
gal right under the law. Acts 1875, p. 103.
For full treatment of names generally, see 8 Cum. Dig.
789, 9 Enc. Dig. 553.
[ 77
§ 3016. (§ 2497.) Mode of adopting child.—
Any person desirous of adopting a child, so as
to render it capable of inheriting his estate, may
present a petition to the superior court of the
county in which said child may be domiciled,
setting forth the name of the father, or, if he be
dead or has abandoned his family, the mother,
and the consent of such father or mother to the
act of adoption; if the child has neither father
nor mother, the consent of no person shall be
necessary to said adoption. The court, upon be-
ing satisfied with the truth of the facts stated in
the petition, and of the fact that such father or
mother has notice of such application (which
notice may be by publication, as required in eq-
uity cases for non-resident defendants), or if the
father or mother has abandoned the child, and
being further satisfied that such adoption would
be to the interest of the child, shall declare said
child to be the adopted child of such person and
capable of inheriting his estate, and also what
shall be the name of such child; thenceforward the
relation between such person and the adopted
child shall be, as to their legal rights and liabili-
ties, the relation of parent and child, except that
the adopted father shall never inherit from the
child. To all other persons the adopted child
shall stand as if no such act of adoption had
been taken. Acts 1855-6, p. 260; 1859, p. 36;
1882-3, p. 59; 1889, p. 69.
See 7 Cum. Dig. 214, 7 Enc. Dig. 325.
Compliance With Statute Necessary for Legal Adop-
tion.— Adoption of a child so as to give it a right of inheri-
tance from its adopted parent is a matter of statute, and
legal adoption is effected in the manner provided in this
and the following section. Lansdell v. Lansdell, 144 Ga. 571,
87 S. E. 782.
Non-Compliance With Statute — Equity Jurisdiction. — A
parol obligation by a person to adopt the child of another as
his own, accompanied by a virtual though not a statutory
adoption, and acted upon by all parties concerned for many
years and during the obligor's life, may be enforced in
equity upon the death of the obligor, by decreeing the child
entitled as a child to the property of the obligor, undis-
posed of by will. Ansley v. Ansley, 154 Ga. 357, 114 S. E.
182; Lansdell v. Lansdell, 144 Ga. 571, 87 S. E. 782; Craw-
ford v. Wilson, 139 Ga. 654, 78 £. E. 30. See also 7 Cum.
Dig. 216.
And such an equitable suit is maintainable by the child
in her own name against the administrator of the obligor.
Crawford v. Wilson, 139 Ga. 654, 78 S. E. 30.
As Beneficiary of Homestead. — A child formally adopted
under this section, by a person who was the head of a
family became a beneficiary of an existing homestead estate
which had been set apart to the adopter under the con-
stitution of 1868. Hilliard v. Hilliard, 135 Ga. 168, 68 S.
E. 1110,
Domicile of Child Determines Place of Order. — An order
for the adoption of a child under this section can only be
rendered in the county of the child's domicile. Portman v.
Mobley, 158 Ga. 269, 123 S. E. 695.
Recission of Order.— After the Superior Court has passed
an order under this section, making a child the adopted"
child of a person not his parent, if the same court have the
power to rescind the order, it is a matter of discretion with-
in which the Supreme Court can not control. Rives v.
Sneed, 25 Ga. 612.
Orders Can Not Be Attacked Collaterally. — Orders of
adoption are in the nature of judgments in rem and can
not be collaterally attacked. Jossey v. Brown, 119 Ga. 758,
47 S. E. 350.
Foreign Decrees.— A judgment of a court of competent
jurisdiction in another State, awarding ' the custody of a
child to a named person, which judgment is regular on its
face and unimpeached for fraud, is conclusive of the status
at the time of its rendition, and will be accorded full faith
and credit when introduced in proceedings in this State
for the custody of the child. Jernigan v. Garrett, 155 Ga.
390, 117 S. E. 327. See also Spann v. Edwards, 139 Ga. 715,
77 S. E. 1128; Milner v. Gatlin. 139 Ga. 109, 76 S. E. 860.
Question for Court. — Under this section the issues made
7]
§3017
LEGITIMATE CHILDREN
§ 3021
by objections filed to a petition for the adoption of a child
are for determination by the court, and the statute makes
no provision for the trial of such issues by a jury. Jernigan
v. Garrett, 155 Ga. 390, 117 S. E- 327.
§ 3017. (§ 2498.) Objections by relations. —
It shall be the privilege of any person related by
blood to such child, if there be no father or
mother, to file objections to such application,
and the court, after hearing the same, shall de-
termine, in its discretion, whether or not the
same constitute a good reason for refusing the
application.
§ 3018. (§ 2490.) Adopting of adult person.
— Adult persons may be adopted in like manner,
and have their names changed, on giving con-
sent to such adoption. Acts 1859, p. 36.
§ 3019. (§ 2500.) Age of majority. — The age
of legal majority in this State is twenty-one
years; until that age all persons are minors.
Cross References.— See § 2168 and note thereto. For a
full and comprehensive treatment of infants, see generally
7 Cum. Dig. 168, 7 Enc. Dig. 292. As to the appointment
of an infant as an executor, see § 3884.
Quoted in Dent v. Cock, 65 Ga. 400; McDowell v. Georgia
Railroad, 60 Ga. 320.
§ 3020. (§ 2501.) Parent's obligation. — Un-
til majority, it is the duty of the father to pro-
vide for the maintenance, protection, and educa-
tion of his child.
Cross References.— See § 2981 and notes thereto. For full
treatment, see 9 Cum. Dig. 157, 10 Enc. Dig. 56. As to
support of child pending suit for divorce, see § 2980 and
note thereto. As to father's obligation to support bastard,
see § 3027. As to custody of child upon divorce, see §
2971. As to award of custody cf child upon hearing of
habeas corpus, see § 2972.
Support of Child. — Under this section it is the duty of
the father, having the ability to do so, to support, educate
and maintain his minor children, although they may have
property of their own. Hines v. Mullins, 25 Ga. 696; Nunn
v. Burger, 76 Ga. 705. For other cases, see 10 Enc. Dig. 56.
And a husband is not excused from the support of his
wife and children because he lacks an estate. If he has the
capacity to labor, he should labor for their support; and
if reluctant, he may be compelled by the court to do so.
Johnson v. Johnson, 131 Ga. 606, 608, 62 S. E. 10'44.
But in case of inability of the father to so provide for
his children from his own means, the ordinary may grant
an order allowing the use of estate in his hands as guard-
ian of his child. Prine v. Mapp, 80 Ga. 137, 5 S. E. 66; Craw-
ford v. Broomhead, 97 Ga. 614, 617, 25 S. E. 487.
Same — Loss of Custody Does Not Relieve Father. — The
award of the custody of the child to some other person, by
reason of misconduct on the part of the father, of itself
does not relieve him of his legal obligation to support his
child. Brown v. Brown, 132 Ga. 712, 715, 64 S. E. 1092.
§ 3021. (§ 2502.) Parental power, how lost.-—
Until majority, the child remains under the con-
trol of the father, who is entitled to his services
and the proceeds of his labor. This parental
power is lost —
1. By voluntary contract, releasing the right
to a third person.
2. By consenting to the adoption of the child
by a third person.
3. By the failure of the father to provide nec-
essaries for his child, or his abandonment of his
family.
4. By his consent to the child receiving the
proceeds of his own labor, which consent shall
be revocable at any time.
5. By consent to the marriage of the child,
who thus assumes inconsistent responsibilities.
[ 778 ]
6. By cruel treatment of the child.
For full treatment, see 9 Cum. Dig., pp. 165, 169, 10 Enc.
Dig., pp. 63, 65. As to control of deposits by minor, see
§ 2366 (187).
In General — Editor's Note. — This section was incorporated
in the Code of 1863, and has not changed its original form.
Prior to the passage of the Act of 1913 (Acts 1913, p. 110),
now § 3022 (1), the prima facie presumption was that the
right of custody was in the father, but this act changed
this rule and places it within the sound discretion of the
court hearing the issue. The welfare of the child is the
paramount consideration. But in the opinion of the editor,
§ 3022 (1) does not affect this section except where the
father has lost parental control in one of the ways enumer-
ated above, and the custody of the child is in issue.
Same— Father Natural Guardian. — No guardian can be
appointed, under § 3035, unless the father's rights are volun-
tarily relinquished or forfeited in accordance with the pro-
visions of this section; such forfeiture must be declared in
a regular proceeding, authorized by law, with notice to the
father. Robison v. Robison, 29 Ga. App. 521, 116 S. E. 19,
citing Jordan v. Smith, 5 Ga. App. 559, 560, 63 S. E. 595.
Same — Right to Earnings. — Under this section, unless his
parental power has been lost or relinquished, a parent is
entitled to the value of the services of his minor child,
whether the contract for the services is made by the parent
or by the minor; and even as to advances or payments
made by an employer to a minor for necessaries, the bur-
den is upon the employer to show that such were really
necessary. Royal v. Grant, 5 Ga. App. 643, 63 S. E. 70S.
See also Newton v. Cooper, 13 Ga. App. 458, 79 S. E. 356.
Paragraph 1 — Contract Must Be Clear. — The contract by
which it is sought to establish that a parent has relin-
quished his parental rights must be clear, definite, and cer-
tain; but, though these essentials are required in order to
create and constitute the contract of relinquishment, it is
not required that the evidence as to the contract shall be
undisputed. Manning v. Crawford, 8 Ga. App. 835, 70 S. E-
959; Miller v. Wallace, 76 Ga. 479; Richards v. McHan,
129 Ga. 275, 58 S. E. 839; Eooney v, Martin, 123 Ga. 209,
51 S. E. 304; Broxton v. Fairfax, 149 Ga. 122, 99 S. E. 292.
Same — Not Revocable at Will. — Under this section, when
the "parental power" is lost by the parent and passes to
one who stands in loco parentis, it remains in the third
person until the child reaches majority. Of course con-
ditions might arise which would authorize the annulment
of the contract. Cars well "Moxley & Son v. Harrison, 33 Ga.
App. 140, 126 S. E. 293, citing Howard v. Randolph, 134 Ga.
691, 692, 68 S. E. 580; Carter v. Brett, 116 Ga. 114, 42 S. E.
348; Bentley v. Terry, 59 Ga. 555.
Same — Contract of Separation. — A contract of separation,
there being no stipulation expressed as to who shall sup-
port and maintain the children, does not release the parental
rights of the father to the mother, within the meaning of
this section, nor relieve the father of the obligation to sup-
port the children. McCarter v. McCarter, 10 Ga. App. 754,
74 S. E. 308.
Same — Not Applicable to Contracts of Apprenticeship. —
This section does not relate to a contract of a parent ap-
prenticing his child to a third person, and such voluntary
contract of a father may be valid and binding on the father
although he does not therein apprentice his child. Eaves
v. Fears, 131 Ga. 820, 64 S. E. 269, and cases there cited.
Same — Consideration. — Under this section an agreement
to care for a child, and the fact that the child is taken when
sick, and nursed into health and strength, and supported
properly and comfortably for five years, is sufficient con-
sideration to support a voluntary contract by the father,
releasing his parental power to another a contract; and the
contract, though made with the wife by the child's father,
will be enforced if acquiesced in by the husband. Bently v.
Terry, 59 Ga. 555.
Same — Father's Right to Sue for Services. — A father
loses the right to sue for and recover the value of his minor
child's services by voluntarily releasing his parental control
to a third person, or by failing to provide for his or her
maintenance. Southern R. Co. v. Flemister, 120 Ga. 524,
48 S. E. 160. See also Eaves v. Fears, 131 Ga. 820, 64 S.
E. 269.
Same — Gift to Third Party. — If a mother gives her in-
fant child to another, who takes and cares for it, and the
father acquiesces in this disposition of the child, he is
bound by it. Manning v. Crawford, 8 Ga. App. 835, 70 S.
E. 959; Eaves v. Fears, 131 Ga. 820, 64 S. E. 269. See also
Daye v. Drew, 158 Ga. 233, 122 S. E 878.
Paragraph 2. — Under this section wh"* a father con-
sented to an adoption of his child • °r this had the
effect of transferring his parental er. Jordan v.
Smith, 5 Ga. App. 559, 562, 63 S. I 59S.
§ 3022
LEGITIMATE CHILDREN
§ 3022(1)
Paragraph 3. — Under this section the parental power is
lost by his failure to provide necessaries for his child; but
it is restored by a reconciliation with his family and a re-
sumption of parental control. Wigley v. Mobley, 101 Ga.
124, 125, 28 S. E. 640.
Under this section, by abandonment of his family a
father loses parental control over his minor children and
the right to their services and the proceeds of their labor.
Newton v. Cooper, 13 Ga. App. 458, 79 S. E. 356; Southern
R. Co. v. Flemister, 120 Ga. 524, 48 S. E- 160. For other
cases, see 9 Cum. Dig. 162.
Paragraph 4 — Contract Between Father and Minor. —
Where the father allowed the son to receive the proceeds
of his labor and made a contract with him by which he was
to do farm work for a year for the father and to receive
therefor an agreed compensation, this amounted to an
emancipation of the son from the control of the father, and
the son could have enforced the contract unless the father
had revoked his consent before the performance of the
work. Hargrove v. Turner, 112 Ga. 134, 135, 37 S. E. 89.
Same — Implied Consent. — Where a minor son, without his
father's consent, makes a contract for his services with a
third person, and the father knows that he is in the em-
ployment of such person, and neither makes any objection
nor demands pay for his child's services from such em-
ployer, there is an implied assent by the father that the
son shall receive his earnings in such employment. Cul-
berson v. Alabama Constr. Co., 127 Ga. 599, 56 S. E. 765.
Same — Temporary Consent. — But even if a parent should
allow a child to engage in a particular employment and re-
tain for himself the wages for his services rendered while
so engaged, it would by no means follow that the minor
had been manumitted by his father for the whole period of
his minority. Hunt v. State, 8 Ga. App. 374, 376, 69 S.
E. 42.
Same — Rights Relinquished to Minor. — Where all parental
rights and control have been relinquished to the minor
himself, it gives him a right to his earnings but does not
give the minor a right to contract generally. Wickham v.
Torley, 136 Ga. 598, 71 S. E. 881.
Same — Assignment of Wages by Minor. — Under this sec
tion a father who has neither forfeited nor relinquished
his parental power is entitled to the proceeds of the labor of
his minor son, and the minor can not defeat his father's
right to the same by assigning his wages to a third per-
son. Southern R. Co. v. King Bros. & Co., 136 Ga. 173, 70
S. E- H09.
§ 3022. (§ 2503.) Mother's rights. — Upon
the death of the father, the mother is entitled to
the possession of the child until his arrival at
such age that his education requires the guard-
ian to take possession of him. In cases of sepa-
ration of the parents, or the subsequent mar-
riage of the survivor, the court, upon writ of ha-
beas corpus, may exercise a discretion as to the
possession of the child, looking solely to his in-
terest and welfare.
Cross References. — See § 3021, par. 1, and note thereto. As
to discretion of court in awarding custody of children to the
mother, see note to §§ 2971, 2972. For full treatment of
habeas corpus proceedings generally, see 6 Cum. Dig. 760,
7 Enc. Dig. 1.
Mother's Right Not Defeated by Father's Contract. —
The first clause of this section declares the right of a
mother to custody of a child after the death of its father,
and the father can not contract such right away. His
right to control the custody of his child ceases with his
life. His contract may be binding as against himself, but
can not deprive the wife of her right to custody of he:
child after the father's death. Eandrum v. Landrum, 159
Ga. 324, 328, 125 S. E. 832.
Gift by Mother. — Although under this section there is no
expression of any means by which the mother can transfer
her right to another or substitute any one in the place, the
gift of a child by the mother raises the rights and duties
as if it were made by the father. Albany v. Lindsey, 11
Ga. App. 573, 75 S. E. 911.
Mother Entitled to Services. — A mother who has the care
and custody of a minor child who has been abandoned by
his father is entitled to the services of the child and the
proceeds of his labor. Newton v. Cooper, 13 Ga. App. 458,
79 S. E. 356.
Same — Actions by Stepfather Not Maintainable. — A step-
father of minor children, who has not received from their
mother a gift or transfer of her parental rights, is not en-
titled to the value of their services or to prosecute a
laborer's lien therefor, such right, where not transferred
by her, remaining solely in the mother. Eucas v. Oglesby,
28 Ga. App. 427, 111 S. E. 579.
The ordinary has jurisdiction to issue and try a habeas
corpus to determine the rights of a husband and wife liv-
ing separately as to the possession of the children. Moore
v. Moore, 66 Ga. 336. See also Barlow v. Barlow, 141 Ga.
535, 81 S. E. 433.
Discretion of Court. — In all writs of habeas corpus sued
out on account of the detention of a child, the court, on
hearing all the facts may exercise its discretion in award-
ing the custody of the child, and shall have authority to
award such custody to a third person. Such discretion,
however, is not arbitrary or unlimited, but is a discretion
guided and governed by the rules of law. Miller v. Wal-
lace, 76 Ga. 479. See note to § 2972.
§ 3022(1). Custody of minor children, no
prima facie right in father. — In all cases where
the custody of any minor child or children is in-
volved between the parents, there shall be no
prima facie right to the custody of such child or
children in the father, but the court hearing
such issue of custody may exercise its sound
discretion, taking into consideration all the cir-
cumstances of the case, as to whose custody
such child or children shall be awarded, the duty
of the court being in all such cases in exercising
such discretion to look to and determine solely
what is for the best interest of the child or chil-
dren, and what will best promote their welfare
and happiness, and make award accordingly.
Acts 1913, p. 110.
Cross References. — For digest treatment of subject, see
9 Cum. Dig. 161 et seq; 10 Enc. Dig. 60 et seq. As to
award of custody in case of divorce, see § 2971. As to
custody where habeas corpus sued out for detention of child,
see § 2972. As to duty of parent to provide for child, see 3
3020. As to how parent's power is lost, see § 3021. As to
mother's right to custody generally, see § 3022. As to the
natural guardian of a child, see § 3032.
Editor's Note". — Prior to the enactment of this section the
right of custody of an infant was prima facie in the father.
But where his custody was resisted by the mother upon
the ground of his unfitness for the trust the court would
look to the interest of the child and award the possession
to the parent who would be most likely to treat it properly.
For a full treatment, see 10 Enc. Dig. 60, 62; 9 Cum. Dig.
161 et seq.
The effect of this section is to deprive the father of this
prima facie right. As to the effect of this section upon §
2971 which provides for the award in cases of divorce, see
the editor's note under that section.
Applicability to Contest Between Mother and Guardian —
Award Discretionary. — While in terms this statute relates
to cases between parents where the custody of a minor child
is involved, it is not inapplicable in a case like this, between
the mother and a testamentary guardian appointed by the
deceased father. And giving the statute the effect it would
have if the controversy over the custody of the child were
between the father and the mother, the disposition of the
child under habeas-corpus proceedings rested in the sound
discretion of the court; and under all the facts it is not
made to appear that the discretion of the court was abused.
Raines v. Harris, 150 Ga. 103, 105, 102 S. E. 827.
In Raines v. Harris, 150 Ga. 103, 105, 102 S. E. 827, the
court said: If this section had' not changed the law on
this subject, we might have concluded that under § 3022
the minor in question here having reached the age of fit-
teen years, which is such an age that her "education re-
quires the guardian to take possession," the court should
have awarded the custody of the minor to the guardian,
clearly shown to be a fit person to have the custody.
Application Unaffected by Final Divorce. — This enact-
ment applies to situations growing out of the domestic rela-
tion of husband and wife, as unaffected by any final divorce
proceedings. Miller v. Gatlin, 143 Ga. 816, 821, 85 S. E. 1045.
See § 2971.
Binding Effect of Decree — After Change of Status of Par-
ties.— Where there has been a divorce decree, in which dis-
position of the child has been made, that decree (where it
is not successfully attacked for fraud in its procurement)
is binding on the parties, so as to conclude their respective
rights to the custody of the children at the time of its
rendition. As to conditions subsequently occurring, the
judge of a habeas-corpus court has full discretion in award-
[ 779 ]
§ 3023
LEGITIMATE CHILDREN
§ 3024
ing the custody of the child, and in exercise of such dis-
cretion he may look to the circumstances relating to the
child's ordinary comfort and contentment, its intellectual
and moral development, and award the custody to either
of the parents, according as it may be to the best interest
of the child. Milner v. Gatlin, 143 Ga. 816, 821, 85 S. E.
1045; Gillens v. Gillens, 148 Ga. 631, 97 S. E- 669. See the
cases below pertaining to credit given foreign decrees.
Credit Given Foreign Decrees. — The general rule is that
a decree of divorce, awarding the custody of the children
of the parties, rendered by a court of another state, haying
jurisdiction of the subject matter and of the parties, will
be given full effect in another state. Brandon v. Brandon,
154 Ga. 661, 666, 115 S. E- 115.
But such decree can not anticipate changes which may
occur in the condition of the parents, or in their character
and fitness for the care of their children. For this reason
such decree is at best but prima facie evidence of the legal
right to the child's custody; and is not conclusive in habeas
corpus proceedings where neglect or mistreatment of the
child, or unfitness of the parent since the date of the de-
cree, is envolved. (.See Williams v. Crosby, 118 Ga. 296, 45
S. E. 282; Barlow v. Barlow, 142 Ga. 535, 81 S. E. 432, 52
L. R. A. (N. S.) 683; Milner v. Gatlen, 143 Ga. 816, 85 S.
E. 1045, E. R. A. 1916 B. 977; Gillens v. Gillens, 148 Ga. 631,
97 S. E. 669.) Brandon v. Brandon, 154 Ga. 661, 115 S. E-
115.
If there is no apparent change in the status of the par-
ties before the institution of the proceeding in this state.
the decree of the foreign state awarding the custody will
not be changed, where the court had jurisdiction of the
subject matter and of the parties. Hammon v. Hammon,
90 Ga. 527, 16 S. E. 265; Blandon v. Blandon, 154 Ga. 661,
115 S. E. 115.
Same — Effect of Lack of Jurisdiction. — If the court does
not have proper jurisdiction of the parties or the subject
matter the decree will not be recognized. The court indi-
cated in Brandon v. Brandon, 154 Ga. 661, 667, 115 S. E-
115, that if the foreign court had jurisdiction of the plain-
tiff and the child, although constructive service by pub-
lication of the defendant was relied upon, the decree might
be binding and conclusive upon the defendant in this state
in a habeas corpus proceeding brought by the plaintiff to
secure the custody of such children. The rule would be
otherwise in case of fraud to obtain jurisdiction.
But if the foreign court did not have jurisdiction of the
children, but such children were in this state with the de-
fendant at the time of such decree, it will not be recognized.
The domicile of a minor is that of his father. (See Jack-
son v. Southern Flour Co., 146 Ga. 453, 91 S. E- 481.)
Brandon v. Brandon, 154 Ga. 661, 668, 115 S. E. 115. Un-
der such circumstances the decree is void for want of proper
jurisdiction so far as awarding custody is concerned.
Even though the child was in the foreign state when the
suit was started, if the child's presence was only temporary
such temporary residence would not give jurisdiction. 10
E. R. A. (M. S.) 690, 123 Am. St. R. 809.
In such cases lack of jurisdiction in the foreign court
may be shown as to the subject matter, or the person, or,
in proceedings in rem, as to the res. Brandon v. Brandon,
154 Ga. 661, 668, 115 S. E. 115.
Same — Where Based Upon Fraud as to Jurisdiction. —
Where the foreign court does not have jurisdiction of the
plaintiff cr the defendant, constructive service being re-
lied nnon, the judgment awarding the child will not be re-
garded as conclusive when based upon fraudulent repre-
sentation in order to confer jurisdiction. Brandon v.
Brandon, 154 Ga. 661, 667, 115 S. E- 115, and cases cited.
Evidence — Opinion as to Fitness of Parent In a contest
between parents over the possession of a child of the mar-
riage, witnesses should not be permitted to give their
opmion that one or the other of the parents is an unfit and
improper person, or that the interest of the child will be
best subserved by awarding the custody to the one of the
contesting parties. Milner v. Gatlin, 143 Ga. 816, 85 S
E. 1045.
Heresay Evidence — Denouncing Character. — Testimony
that peonle in the neighborhood of one of the parties had
denounced his character as bad, but refuses to give an affi-
davit to that effect because of fear of injury to person or
property is hearsay and inadmissible. Milner v. Gatlin
143 Ga. 816. 85 S. E. 1045.
Cases Where Award Upheld. — Barlow v. Barlow, 141 Ga.
535, 81 S. E. 433; Tippins v. Tippins, 146 Ga. 616, 95 S. E^
195; Turner v. Turner, 150 Ga. 191, 103 S. E. 413; McCallum
v. McCallum, 157 Ga. 795, 122 S. E. 231. see dissenting
opinion.
§ 3023. (§ 2504.) Cruel treatment by par-
ents.—-Any person may apply to the ordinary of
the county, alleging the cruel treatment of a
child by his father, who shall cite the father to
answer the allegation; and such ordinary may at
any time hear evidence, and, in his discretion,
appoint a guardian of the person of such child,
who shall be entitled to the possession of him.
Cross References. — As to criminal liability for cruelty to
children, see P. C. 758. As to care of children in charitable
institutions, see § 2848. As to loss of parental power by
cruel treatment, see § 2021, par. 6.
§ 3024. (§ 2505.) Children, how protected.—
Whenever any child under the age of twelve
years shall be brought before the ordinary of
the county of such child's residence, upon the
sworn allegation of any citizen that such child
was found under circumstances of destitution
and suffering, or abandonment, exposure, or of
begging, or that such child is being reared up
under immoral, obscene, or indecent influences
likely to degrade its moral character and devote
it to a vicious life, and it shall appear to such
ordinary by competent evidence, including such
examination of the child as* may be practicable,
that by reason of the neglect, habitual drunken-
ness, lewd, or other vicious habits of the parents
or guardians of such child, it is necessary to the
protection of such child from suffering, or from
degradation, that such parents or guardians shall
be deprived of the custody of such child, such
ordinary may commit such child to any orphan
asylum or other charitable institution established
according to law in this State which is willing
to receive 'such child, or appoint a proper guard-
ian therefor, or make such other disposition, of
them as now is, or may hereafter be, provided
by law in cases of disorderly, pauper, or desti-
tute children. Acts 1878-9, p. 162.
Cross References. — See § 2972 and note thereto. As to
care and custody of children committed to sectarian insti-
tutions, see § 2848. As to classes of children committed to
the Georgia Industrial Home, see § 2862. As to authority to
bind in certain cases, see § 3124.
Section Strictly Construed. — The proceeding authorized
by this section is a very harsh one, permitting as it does
the taking of a child from its parent at the instance of any
citizen, without regard to the individual right of the ap-
plicant. A statute thus in derogation of parental rights
should be considered strictly, and the prescribed allega-
tions must be specifically made and sworn to before the
statute can be set in operation. Hammond v. Hammond,
90 Ga. 527, 530, 16 S. E. 265,
Section Not Repealed by Act for Commitment to Ga.
Industrial Home. — This section was not repealed by the
act of 1904 touching the committing of children in certain
cases to charitable institutions. Moore v. Dozier, 128 Ga.
90, 57 S. E. HO. See § 2862.
Who May Petition. — Under this section any citizen, if
he knows that young children are being reared under these
improper influences, may make a sworn statement of the
facts, and the ordinary is authorized to take the children
away from their parents or guardians and make such dis-
position of them, under the law, as he may think proper.
Haire v. McCardle, 107 Ga. 775, 777, 33 S. E. 683.
Effect of Divorce Decree. — A decree in a divorce suit
awarding the child to one of the parents is no obstacle to a
proceeding under this section. Williams v. Crosby, 118 Ga.
296, 45 S. E. 282..
Validity of Commitment to Sectarian Institution. — Where
under this section, or a writ of habeas corpus sued out
against the mother of illegitimate children under twelve
years of age, their custody was awarded to a charitable in-
stitution, the mother subsequently sued out another writ
of habeas corpus, and objected to the admission in evidence
of the record of the first proceeding, upon the ground that
the name showed that the institution to which they were
awarded was sectarian in character and this was a viola-
tion of the constitutional guaranty of religious liberty was
nroperly overruled, and the evidence was rightly admitted.
Moore v. Dozier, 128 Ga. 90, 57 S. E. 110.
Evidence. — Tn such case evidence that the mother's gen-
[ 780]
§ 3025
ILLEGITIMATE CHILDREN-, OR BASTARDS
§ 3029
eral reputation for chastity in the community where she
lived was bad, and that she was generally reputed to be an
immoral woman, was admissible, as well as evidence of
specific acts tending to show that she was an improper per-
son to have the care and custody of the children. Moore
v. Dozier, 128 Ga. 90, 57 S. E. HO. But it was not compe-
tent for witnesses to testify generally that the mother was
an unfit person to rear the children.
Amendment to Answer. — An answer in a habeas corpus
case involving the custody of a child previously awarded
to petitioner may be amended so as to bring the case un-
der this section against petitioner. Haire v. McCardle, 107
Ga. 775, 33 S. E. 683.
§ 3025. (§ 2506.) Mutual protection.— Par-
ents and children may mutually protect each
other, and justify the defense of the person or
reputation of each other.
See P. C, § 74 (and note thereto) which is identical with
this section.
Where a man has debauched a minor girl and induced
her to abandon her parental abode and live with him in a
state of adultery and fornication, and persists in a con
tinuance of such conduct, equity will afford a remedy by
injunction, and to that end, in a suit by the father, will
enjoin the man from associating and communicating with
the girl, either by writing, telephoning, or telegraphing,
personally or through the aid or agency of any other per-
son. Stark v. Hamilton, 149 Ga. 227, 99 S. E. 861.
ARTICLE 2.
Illegitimate Children, or Bastards.
§ 3026. (§ 2507.) Bastard.— A bastard is a
child born out of wedlock, and whose parents
do not subsequently intermarry, or a child the
issue of adulterous intercourse of the wife dur-
ing wedlock.
Cross References. — For full treatment of bastards and
bastardy proceedings, see 2 Cum. Dig. 689, 2 Enc. Dig. 311.
See also, P. C, §§ 1330-1336. As to legitimation of bastard
child, see § 3012, et seq. As to concealment of death ot
bastard child as a crime, see P. C, § 79. As to effect of
total divorce upon issue of the marriage, see § 2963.
Who Are Bastard Children. — Both at common law, as it
was interpreted in England at the time of our adopting
statute, and under the statute of this state, a child of a
married woman begotten by one who is not the husband of
the mother, is a bastard. Jones v. State, 11 Ga. App. 760,
76 S. E. 72.
Presumption of Legitimacy. — While there is a strong pre-
sumption that a child born during wedlock is legitimate,
this presumption is not conclusive, and will be held to have
been rebutted, where the proof to the contrary is clear.
Wright v. Hicks, 12 Ga. 155, 156; Sullivan v. Hugly, 32 Ga.
316, 321; McLoud v. State, 122 Ga. 393, 50 S. E. 145; Jones
v. State, 11 Ga. App. 760, 76 S. E. 72.
§ 3027. (§ 2508.) Father's obligation,— The
father of a bastard is bound to maintain him.
This obligation shall be good consideration to
support a contract by him. He may voluntarily
discharge this duty; if he fails or refuses to do
it, the law will compel him.
As to proceedings to compel father to support an illegiti-
mate child, see P. C, §§ 1330-1336.
Action Against Father for Support. — An action will not
lie in favor of a person who has expended money in the
support and maintenance of a bastard child, against the
reputed father of such child, to recover the amount so ex-
pended. The only mode of requiring the reputed father of
a bastard to support the child is that pointed out in P.
C, § 1336. Nixon v. Perry, 77 Ga. 530, 3 S. E. 253.
Proceedings Against Administrator. — A bastard, acknowl-
edged and supported by its father in his lifetime, can not
(in the absence of any contract for its support by the
father) by suit against his administrator, compel him, un-
der this section to furnish maintenance out of . the estate
of his intestate to such bastard during his minority, even
though the father may have stated that he intended the
child should be supported out of his estate after his death.
Duncan v. Pope, 47 Ga. 445.
Liability of Father as Consideration for Settlement. —
Pursuant to the provisions of this section the liability of
the putative father of a bastard child to maintain the same,
is a good consideration for a settlement, made in trusts for
the benefit of the mother. Davis v. Moody, 15 Ga. 175. See
also Jones v. Peterson, 117 Ga. 58, 43 S. E. 417; Franklin
v. Ford, 13 Ga. App. 469, 79 S. E. 366. And see 2 Cum.
Dig. 693.
§ 3028. (§ 2509.) Mother's rights.— The
mother of a bastard is entitled to the possession
of the child, unless the father shall legitimate
him as before provided. Being the only recog-
nized parent, she may exercise all the paternal
power.
As to legitimacy by order of court, see § 3013. As to
rights of mother of legitimate child, see § 3022.
Control of Illegitimate. — Under this section the control ot
a minor bastard child who has not been legitimated by his
father belongs exclusively to his mother; and even if he
could, where she abandoned him, or refused to support
him, make a valid contract of service with another, he
certainly can not against her consent do so when she has
neither abandoned nor refused to support him. Terry v.
State, 113 Ga. 936, 39 S. E. 315.
Apprenticing Child by Ordinary. — The ordinary of the
county of the mother's residence has no authority to ap-
prentice an illegitimate without the consent of the mother,
unless she be unable to support her child, or some other
legal reason be shown why she should be deprived of the
custody of it. Alfred v. McKay, 36 Ga. 441.
Relinquishment of Rights. — Where the mother of illegiti-
mate children relinquishes all of her rights to the father of
such children, she can not thereafter regain possession of
the children in a habeas corpus proceeding, the condition of
the father to maintain and support them being unchanged.
Kirkland v. Canty, 122 Ga. 261, 50 S. E. 90.
Action for Death. — As to mother's right to recover for
the homicide of an illegitimate son, see note of Robinson v.
Georgia R., etc., Co., 117 Ga. 168, 43 S. E. 452, under §
4424.
§ 3029. (§ 2510.) Inheritance by bastard-
Bastards have no inheritable blood, except that
given to them by express law. They may in-
herit from their mother, and from each other,
children of the same mother, in the same man-
ner as if legitimate. If a mother have both le-
gitimate and illegitimate children, they shall in-
herit alike the estate of the mother. If a bastard
dies leaving no issue or widow, his mother,
brothers, and sisters shall inherit his estate
equally. In distributions under this law the
children of a deceased bastard shall represent
the deceased parent. Act 1816, Cobb, 293; Act
1850, Cobb, 299; Acts 1855-6, p. 228.
Cross References. — As to rule of inheritance, see § 3921.
As to inheritance of illegitimate colored children born prior
to 1866, see §§ 2178, 2180, and notes. As to legitimation of
children by order of court, see § 3013.
Editor's Note. — At common law the rights of a bastard
were few, and they such only as he could acquire (Hicks v.
Smith, 94 Ga. 809, 22 S. E. 153). Having no inheritable
blood by operation of the law of descent no estate could be
imposed upon him. For in order to take by descent he
must be capable of -inheriting, and this he could not do be-
cause he was not and could not be an heir. Being with-
out inheritable blood, he was of kin to no one, could have
no ancestor, could be heir to no one, and, for the same
reason, he could have no heirs save those of his own body.
In process of time, however, the rigor of the common law
has been much abated, and its asperities so softened and
tempered by human legislative enactments until the con-
dition of the bastard is vastly improved. The progress of
civilization and the spread of correct ideas has now almost
obliterated the old notion that illegitimates are outcast.
They do not inherit from their father, because the marriage
tie (the proof that they are his children) does not exist
between him and the mother. But no such proof being
needed as to their connection by blood with the mother, or
with the brothers and sisters of the same mother, they in-
herit. It is in Georgia, now, only a question of legal proof
of blood connection, since now legitimates and illegitimates
inherit equally from the mother, and a legitimate brother
or sister may. in some cases inherit from an illegitimate
(see § 3030). The whole spirit of our law is to put thero
[781]
§ 3030
GUARDIAN AND WARD
§ 3033
©n the same footing of legitimates, as to their mother and
children of the same mother.
Inheritance from Each Other. — Where an illegitimate
dies leaving property, his brothers and sisters by the same
mother who were also illegitimates, inherit his property.
Curlew v. Jones, 146 Ga. 367, 91 S. E. US. And if the
brothers and sisters be dead, their children take per capita,
and not per stirpes, just as do legitimates under the same
circumstances. Houston v. Davidson, 45 Ga. 574.
Inheritance from Putative Father.— An illegitimate son
does not inherit from the putative father in this state. Pair
v. Pair, 147 Ga. 754, 757, 95 S. E. 295, citing Johnstone v.
Taliaferro, 107 Ga. 6, 16, 32 S. E. 931.
Inheritance from Material Grandparent. — A bastard, is
not by this section capable of inheriting from a maternal
grandparent. Thigpen v. Thigpen, 136 Ga. 541, 71 S. E-
790.
Inheritance as between Legitimates and Illegitimates. —
When there are two sets of children, born of the same
mother, the one legitimate and the other illegitimate, and
one of the latter dies intestate and without issue, the legiti-
mate brothers and sisters on the maternal side, are not by
the Statute of this State, co- distributees of the estate of
the deceased, with the illegitimate. Allen v. Donaldson, 12
Ga. 332. And where there are no full brothers or sisters
■of the bastard, the mother is the sole heir. Langmade v.
Tuggle, 78 Ga. 770, 3 S. E- 666.
§ 3030. (§ 2511.) By legitimate from illegiti-
mates.— If a bastard dies intestate, leaving no
widow or lineal descendant, or illegitimate
brother or sister, or descendant of a brother or
sister, or mother, but shall leave a brother or
sister of legitimate blood, such brother or sister,
*or descendant of such brother or sister, may in-
herit the estate of such intestate; but in default
of any such person, the brothers and sisters of
the mother of such bastard or their descendants,
or the maternal grandparents of such bastard,
may inherit the estate of such bastard, to be di-
vided amongst said persons in accordance with
the degrees of consanguinity prescribed in the
laws for the distribution of other estates. Acts
1859, p. 36; 1865, p. 102.
See § 3029 and note thereto. As to rules of inheritance,
see § 3931.
CHAPTER 3.
Of Guardian and Ward.
For full and comprehensive treatment, see 6 Cum. Dig.
716, 6 Enc. Dig. 820.
ARTICLE 1.
Their Appointment, Powers, Duties, Liabilities,
Settlements, Resignation, etc.
SECTION l.
How and by Whom Appointed.
§ 3031. (§ 2512.) Kinds of guardians. —
Guardians of minors may be either — 1. Natural
guardians. 2. Testamentary guardians. 3.
Guardians of person and property, or either.
See note to § 3035. For full treatment of guardians
generally, see 6 Cum. Dig. 716, 6 Enc. Dig. 820.
§ 3032. (§ 2513.) Natural guardian. — The
father, if alive, is the natural guardian; if dead,
the mother is the natural guardian. The natural
guardian can not demand or receive the prop-
erty of the child until a guardian's bond is filed
and accepted by the ordinary of the county. If
such natural guardian fail or refuse to give bond
and surety, the ordinary may appoint another
guardian to receive such property. Act 1823,
Cobb, 322; Act 1845, Cobb, 335; Acts 1851-2, p.
101.
As to prima facie presumption of right of father to
custody of child, see § 3022, par. 1.
General Rule. — The common law of England, and, it is
believed, the statute law of every state in this country, if
not in the civilized world, recognizes the father as the
legitimate, natural guardian of his child. L,amar v. Har-
ris, 117 Ga. 993, 997, 44 S. E. 866.
It follows from this section that the father, if living is
the natural guardian both of the person and of the prop-
erty of his legitimate child, as to the child's person un-
conditionally; and as to the child's property conditionally
and dependent upon his giving bond. Jordan v. Smith, 5
Ga. App. 559, 560, 63 S. E. 595. '
Section Applies to Law and Equity Courts. — This section
is for the protection of the rights of minor children and is
as imperative and binding in courts of equity as in courts
of law. Southwestern R. Co. v. Chapman, 46 Ga. 538, 543.
Bond. — The provision of this section which require that
the guardian shall give bond before he can demand and
receive property of the child applies to the income of the
property as well as to the corpus thereof. Southwestern R.
Co. v. Chapman, 46 Ga. 538, 543.
But this section does not make the receipt of property of
a minor by the guardian before bond has been given to
the ordinary illegal in such a sense, as that the person
paying it can not recover it back,' or show that it has, in
fact, been accounted for by the natural guardian to the
ward, or applied to the benefit of the ward. Southwestern
R. Co. v. Chapman, 46 Ga. 557.
Mother's Rights. — As to obligation of ordinary to super-
sede the mother as natural guardian of ward over fourteen
years of age, see Beard v. Dean, 64 Ga. 259, under § 3035.
§ 3033, (§ 2514.) Testamentary guardian —
Every father may, by will, appoint guardians for
the persons or property, or both, of his children,
and such guardians shall not be required to give
bond and security, except in case of waste com-
mitted or apprehended, or property coming' to
the ward from sources other than the father's
will, when the ordinary shall require the same.
If a testamentary guardian fails to give bond as
required, the ordinary may dismiss him as
guardian and appoint another, or may appoint
another guardian for the property thus accruing.
In all other respects a testamentary guardian
shall stand on the same footing with other
guardians appointed by the ordinary. Acts 1851-
2, p. 101.
See 6 Cum. Dig. 721, 6 Enc. Dig. 827.
Appointment of Wife — Where the husband's will exempted
the wife from accounting for profits of the estate, and
named her guardian of the children in the event of his
death, this was sufficient to constitute her testamentary
guardian. Southern Marble Co. v. Stegall, 90 Ga. 236, 15
S. E. 806.
Where Child Awarded Another. — One to whom the par-
ental power over a minor is awarded has no power to ap-
point a testamentary guardian for such minor. Lamar v.
Harris, 117 Ga. 993, 44 S. E. 866.
A testamentary guardian can not, by will, transfer the
custody of his ward to another. Taylor v. Jeter, 33 Ga.
195.
Bond. — The general rule is that a testamentary guardian
is not required to give bond and security as to property
coming to the ward under the father's will. Southern
Marble Co. v. Stegall, 90 Ga. 236, 15 S. E. 806.
The bond provided for in this section (as property com-
ing to ward from sources other than the father's will) is
not an additional bond, but a first bond, and to require it
is not discretionary with the ordinary, but he "shall re-
quire the same." Huson v. Green, 88 Ga. 722, 725, 16 S.
E. 255.
Where by a will a testator appointed a guardian of the
property of his children, at the same time appointing others
to act as guardian of their persons and after his death, his
children inherit property from an uncle, it was held that the
guardian could not recover the property of the uncle's ad-
ministrator as he had not given the bond required by this
section for the proper management of the property. Poe
v. Schley, 16 Ga. 364.
[ 782 ]
§ 3034
HOW AND BY WHOM APPOINTED
§ 3037
§ 3034. (§ 2515.) Appointed by widows. —
The mother, if a widow, shall have the power
by will to appoint testamentary guardians for
such children as have none, as to their persons,
and as to such property as they may inherit
from her. Act 1845, Cobb, 335.
A judgment or decree divorcing husband and wife, a
vinculo matrimonii, and giving the custody and education
of a child of the marriage to the wife, does not empower
her to appoint a testamentary guardian for that child, the
father surviving. Taylor v. Jeter, 33 Ga. 195.
§ 3035. (§ 2516.) General guardian. — The
ordinary of the county of the domicile of a
minor having no guardian shall have the power
of appointing a guardian of the person and prop-
erty, or either, of such child. If the ward shall
be above the age of fourteen years before a
guardian is appointed, he shall have the privilege
of selecting a guardian, and if such selection be
judicious the ordinary shall appoint him. The
ward having once exercised this privilege can
not do so again, except upon cause shown for
the removal of the first selection. Act 1839,
Cobb, 286; Act 1850, Cobb, 338.
For full treatment of this subject, see 6 Cum. Dig. 722,
6 Enc. Dig. 831.
Definition of Guardian of Person. — A guardian of the
person is defined to be "one who has been lawfully in-
vested with the care of the person of an infant whose
father is dead, and is considered as standing in the place
of the- father." Nicholson v. Spencer, 11 Ga. 607; Jordan v.
Smith, 5 Ga. App/ 559, 561, 63 S. E. 595.
Ordinary Acts for Benefit of Child. — The power of ap-
pointment is vested in the ordinary for the benefit of the
child, not of the applicant. Watson v. Warnopk, 31 Ga.
716.
When Father Living. — The ordinary has no power, under
this section to appoint a guardian of the person of a child
whose father is living, unless the parental rights of the
latter have been forfeited and the forfeiture has been as-
certained and declared in some regular proceeding au-
thorized by law, after due notice to him. Jordan v. Smith,
5 Ga. App. 559, 63 S. E- 595.
When Ward May Choose Guardian.— Pursuant to the pro-
visions of this section a ward, after he has attained the age
of fourteen years, has the right to choose his guardian, and
for that purpose to have the letters of guardianship issued
under the appointment of the ordinary to a former guard-
ian, revoked. Bryce v. Wynn, 50 Ga. 332.
Same — Proceeding for New Guardian. — "The first step
which a ward must take to remove a guardian appointed
by the ordinary, and substitute therefor one of his own
selection, alter he has arrived at the age to make such
selection, is to institute a proceeding to revoke the letters
of his guardian. He can only do this by a petition filed in
the court of ordinary of the county of the guardian's ap-
pointment." Dickerson v. Bowen, 128 Ga. 122, 124, 57 S. E.
326.
And before such order of revocation is granted, a selec-
tion of the successor in the guardianship should be made,
which selection must be judicious in the judgment of the
ordinary, and the person chosen should give his consent to
his appointment. Bryce v. Wynn, 50 Ga. 332. See also
Dickerson v. Bowen, 128 Ga. 122, 57 S. F. 326.
Same — Mother Not Superseded. — It is not obligatory upon
the ordinary to supersede the mother as natural guardian
of a daughter over fifteen years of age, and appoint as
guardian the person elected by the latter. Beard v. Dean,
64 Ga. 259.
It was said by the court in the above case that "to
harmonize- all the provisions of these three sections (re-
fering to this section and §§ 3032, 3037) they must be read
attentively. Natural guardianship, pure and simple, is of
the person only, and is incident to the relation of parent.
* * * For the mother or the father either to have guard-
ianship of the child's property, the ordinary must be con-
sulted; bond must be given, and by the ordinary accepted.
When this is done the parent is guardian of both person
and property. But if the bond is not given by the natural
guardian the ordinary merely appoints some one else
guardian to receive the property. Nothing is said of any
authority to displace the parent as guardian of the person.
For a minor having no guardian, the ordinary may ap-
point a guardian of person and property, or of either; but
if the minor has a natural guardian, it certainly can not
be said in a broad sense that he or she has no guardian.
In such case the range of appointment is limited to guard-
ianship of the property, for it is only as to property that
there is no guardian." Jordan v. Smith, 5 Ga. App. 559, 561,
63 S. E. 595.
Jurisdiction of Court of Ordinary. — Whether the letters
of guardianship be a part of the record of the court of
ordinary granting them or not, the fact that they did not
show the ground for jurisdiction of the court on their face,
as is necessary in the proceedings of a court of limited
jurisdiction, is immaterial, because such court, so far as
testate and interstate estates are concerned, can not be
deemed a court of limited jurisdiction. Perkins v. Attaway,
14 Ga. 27; Wood v. Crawford, 18 Ga. 526; Bush v. Linclsey,
24 Ga. 245. As to jurisdiction of ordinary generally, see
§ 4790.
The rule as laid down in the cases of Grier v. McLendon,
7 Ga. 362, 364, and Worthy v. Johnson, 8 Ga. 236, 243, were
in effect, if not expressly, overruled by the above cases,
as it was said in the Perkins Case, supra, that the rule as
laid down in the Grier Case must be relaxed. Ed. Note.
Same — At Chambers. — Letters of guardianship can be
granted only at a regular term of the court of ordinary.
Where the proceedings showed on their face that the let-
ters were granted by the ordinary at chambers, the appoint-
ment was made without jurisdiction, and was void. Bell
v. Love, 72 Ga. 125, approved in Dooley v. Bell, 87 Ga. 74,
13 S. E. 284.
Same — Where Appointment Made — Letters testamentary
should be granted in the county of the testator's residence
at the time of his death. McBain v. Wimbish, 27 Ga. 259.
See also, Shorter v. Williams, 74 Ga. 539.
An ordinary has no jurisdiction to appoint a guardian for
an infant whose residence is out of his county. Rives v.
Sneed, 25 Ga. 612. See 6 Enc. Dig. 833.
Where the ward is over fourteen years of age, and re-
sides in a county different from that of the guardian's ap-
pointment, the ordinary of the county of the ward's resi-
dence approves the ward's selection of a guardian. Dicker-
son v. Bowen, 128 Ga. 122, 57 S. F. 326.
Same — Estoppel. — A person who has been appointed
guardian by a court of ordinary and has taken possession
of the property, and otherwise acted as such guardian, is
concluded from saying, when sued as such guardian, that
the ward did not reside in the county of the court, and
therefore that the court had no jurisdiction to make the
appointment. Hines v. Mullins, 25 Ga. 696.
Collateral Attack upon Judgment Appointing. — The judg
ment of a court of ordinary appointing a guardian can not
be collaterally attacked, unless want of jurisdiction appears
on the face of the record. Sturtevant v. Robinson, 133 Ga.
564, 66 S. E. 890.
Appeal.— On appeal the whole case goes up to be tried
anew, and the discretion of the ordinary vests in the supe-
rior court for that trial. Watson v. Warnock, 31 Ga. 716.
§ 3036. (§ 2517.) Of property of non-resident
ward. — If a minor is non-resident, but has prop-
erty in this State, the ordinary of the county
where the property is may appoint a guardian,
who shall have control only over such property.
See § 3035 and note thereto.
Under this section jurisdiction is based upon the presence
of property within the county. Coker v. Gay, 154 Ga. 337,
342, 114 S. E. 217.
§ 3037. (§ 2518.) Appointment of collaterals.
— Among collaterals applying for the guardian-
ship, the nearest of kin by blood, if otherwise
unobjectionable, shall be preferred. The ordi-
nary, however, in every case may exercise his
discretion according to the circumstances, and,
if necessary, grant the letters to a stranger in
blood. Act 1828, Cobb 327; Act 1845, Cobb, 335;
Acts 1876, p. 19; 1922, p. 46.
Editor's Note.— This section was amended by the acts cf
1922, p. 46. Prior to the amendment the catchline of the
section was, "Mother Guardian." The amending ict
changed this to "Appointment of Collaterals," and omitted
the first sentence of the section as it formerly read,
namely, "In the appointment of guardians the widowed
mother shall have preference upon complying with the law."
At the end of the first sentence of the section, as it now
reads, . there was a provision that "males should be pre-
[783 ]
§ 3038
HOW AND BY WHOM APPOINTED
§ 3047
ferred to females," this also was omitted. It seems that
the effect of this amendment is to divest the widowed
mother of the preference of guardianship heretofore given
by this section, and to place the preference with the near-
est of kin by blood, if otherwise unobjectionable.
Application to Guardianship of Person.— This section is
applicable to a contest for the guardianship of the person
and property of one who has been adjudged incapable of
managing his estate and therefore liable to have a guardian
appointed for him. Armor v. Moore, 104 Ga. 579, 30 S. E.
821.
Nearest of Kin. — Under the provisions of this section,
the ward's nearest of kin by blood, if unobjectionable, is,
in such a contest, entitled to the appointment; and the
preference of those to whom, as remaindermen, the ward's
estate may eventually belong is not, in legal contemplation,
material. Armor v. Moore, 104 Ga. 579, 30 S. E. 821. See
also Johnson v. Kelly, 44 Ga. 485, 486; Chalker v. Thornton,
31 Ga. App. 791, 122 S. E- 244.
§ 3038. (§ 2519.) Married women may be
guardians, when. — A married woman may be
guardian of the person or property, or both, of
any minor, whether her own child or that of
another, by complying with all the requisitions
required by law of other guardians in this State.
Acts 1876, p. 19; 1922, pp. 46, 47.
As to capacity of married women to contract generally,
see §§ 2993, 3007. As to mother as natural guardian, see
§ 3032.
This section was taken from the acts of 1876, p. 19, and
was amended by acts of 1922, p. 47, by striking out the
words "married women shall be authorized to act as guard-
ians for their minor children by a former husband" and in-
serting in lieu thereof the words, "A married woman may
be guardian of the person or property, or both, of any
minor, whether her own children or that of another." The
effect Of this amendment, it seems, was to remove the
inability of a married woman to act as guardian for chil-
dren other than her own. This amendment was in all
probability brought about by the decision in Sturtevant v.
Robinson, 138 Ga. 734, 75 S. E. 1121. Ed. Note.
§ 3039. (§ 2520.) Appointment of clerk or
stranger. — If there be no application for letters
of guardianship, and a necessity for a guardian
exists, the ordinary, after giving notice for thirty
days, may vest such guardianship in the county
guardian, clerk of the superior court of the
county, or in any person or persons residing in
said county, whom he shall deem fit and proper
in his discretion, requiring bond and security as
in other cases. Act 1826, Cobb, 324; Act 1845,
Cobb, 336; Act 1850, Cobb, 339.
The sureties upon the official bond of a clerk of the
superior court are not liable thereon for his default as a
guardian appointed by the ordinary under the provisions of
this section. Hardwick v. Fidelity, etc., Co., 29 Ga. App.
567, 116 S. E. 220.
§ 3040. (§ 2521.) County administrators
county guardians. — County administrators are
ex-officio county guardians, and shall accept all
appointments as guardians in cases where there
is no application for letters of guardianship, and
a necessity for a guardian exists. Acts 1890-1,
p. 102.
§ 3041. (§2522.) Bond as such.— County ad-
ministrators shall give another bond with good
security, to be judged by the ordinary, in the
sum of five thousand dollars, payable to the or-
dinary for the benefit of all concerned, and to
be attested by him or his deputy, conditioned
for the faithful discharge of the duties of county
guardian, as required by law; suits thereon may
be brought by any person aggrieved by the mis-
conduct of the county guardian, as provided by
law for suits on the bonds of other guardians.
§ 3042. (§ 2523.) Letters of guardianship.—
The ordinary shall grant to said county guard-
ian, separate letters of guardianship upon each
appointment; he shall be subject to all liabilities,
and entitled to all the rights and emoluments
prescribed for other guardians, and shall be gov-
erned by the law provided for other guardians.
§ 3043. (§ 2524.) Additional security. — The
ordinary shall require additional security upon
all bonds, or an additional bond with security,
whenever he may deem it best for all parties
concerned, or whenever it shall be made to so
appear to said ordinary by any other person in
interest or as prochein ami.
See §§ 3049, 3050.
§ 3044. (§ 2525.) Law as to county adminis-
trator applicable. — All the provisions of this
Code creating the county administrator, appli-
cable to the duties and powers conferred by this
Article, are made part of the same.
As to provisions creating county administrators, see §§
3952, et seq.
§ 3045. (§ 2526.) Guardian of bastard.— The
ordinary may appoint a guardian for the person
and property of an illegitimate child in all cases
where he may deem it necessary.
For full treatment of bastards and bastardy proceedings,
see 2 Cum. Dig. 689, 2 Enc. Dig. 311. As to who are
bastards, see § 3026.
§ 3046. (§ 2527.) Notice of application.— Ev-
ery application to be appointed guardian of a
minor under the age of fourteen years, other
than the child of the applicant, shall be made to
the ordinary, and notice thereof given by him
in some public gazette of this State, at least
thirty days before such letters shall be granted.
At the regular term next after the expiration of
the notice, the letters may be granted either to
the applicant or some other person, in the dis-
cretion of the court. In the meantime a tempo-
rary guardian may be appointed under the same
rules as apply to the appointment of temporary
administrators. Acts 1850, Coblb, 338.
As to granting temporary letters of administration, see
§ 3935. As to rules for granting letters of administration,
see § 3943.
§ 3047. (§ 2528.) Bond and oath.— Every
guardian appointed by the ordinary, before en-
tering on the duties of his appointment, shall
take before the ordinary an oath, or affirmation,
well and truly to perform the duties required of
him as guardian, and faithfully to account with
his ward for his estate; and shall also give bond
with good and sufficient security, to be approved
by the ordinary, in double the amount of the
supposed value of the property of the ward, for
the faithful discharge of his duty as guardian;
such bond shall be payable to the ordinary and
his successors. A substantial compliance as to
all matter of form shall be sufficient. Act 1820,
Cobb, 320; Act 1826, Cobb, 325; Act 1841, Cobb,
333; Acts 1851-2, p. 96; 1857, p. 61.
As to additional bond for after-acquired property, see
§ 3049. As to bond required of natural guardians, see §
3032.
Substantial Compliance. — The policy of the law as to all
bonds required by statute, and especially as to bonds of
guardians, administrators, and like trustees, is to disregard
mere formalities, and to require only substantial com-
pliance to secure all statutory remedies to persons injured
by their breach. United States Fidelity, etc., Co. v. Davis,
2 Ga. App. 525, 529. 58 S. E. 777. In this case it was held
[ 784
§ 3048
HOW AND BY WHOM APPOINTED
§ 3052
that the bond executed was in substantial compliance with
this section.
Conditions of Bond. — The condition prescribed by thc
statutes for the official bond of a sheriff and that of a
guardian are similar. Harris v. Black, 143 Ga. 497, 503, 83
S. E. 742. See § 4906.
Bona Fide Purchasers. — In all cases of the appointment
by the ordinary of the guardian of a minor— whether the
clerk of the superior court or some other proper person-
bond should be required; but the grant of letters without
taking bond would not be void as against a bona fide pur-
chaser under the guardian, without notice of the want o'.
a bond. Cuyler v. Wayne, 64 Ga. 79.
§ 3048. (§ 2529.) Taken in vacation. — The
taking of the oath and giving the bond may be
done at any time in vacation, the appointment
being made at a regular term. The bond when
taken shall be recorded by the ordinary in a
book to be kept by him for that purpose, and
the original kept of file in his office. Act 1820,
Cobb, 320; Act 1829; Cobb, 327; Act 1850, Cobb,
339.
§ 3049. (§ 2530.) Additional bond. — If at any
time after the appointment other property shall
descend, or come, or be given, or otherwise ac-
crue to the ward, the ordinary may require the
guardian to give an additional bond with secu-
rity in double the amount of such property, and
on his failure to comply the ordinary may ap-
point a special guardian for such property; and
whenever it shall come to the knowledge of the
ordinary, either' by annual returns or otherwise,
that the bond and security of any guardian is
not of sufficient amount to be of double the
amount of the property or funds in the hands of
such guardian, or that such bond and securities
are otherwise insufficient in the judgment of
such ordinary, it shall be his duty to give notice
to said guardian to come forward at the next
term of the court of said ordinary, and give ad-
ditional security to said ordinary, or give a new
bond with good securities; and on failure to do
so, the authority of said guardian shall cease;
and said ordinary shall appoint, in terms of the
law, a guardian to take the place of said default-
ing guardian. Acts 1861, p. 33.
The additional bond required by this section, upon other
property coming in, is discretionary with the ordinary, and,
if required, would be cumulative and not exclusive as to
these assets. Without some order of discharge, the
surety on an existing bond is liable for future default of
the principal, though an addition bond be taken. The
original bond, not being restricted to any class of assets,
would operate as to all alike, no matter when the title to
them accrued or when received, provided they were re-
ceived whilst the guardianship was on foot and the letters
in full force. Huson v. Green, 88 Ga. 722, 724, 16 S. E. 255,
see also to the same effect that the additional bond is
cumulative. Remington v. Hopson, 137 Ga. 95, 72 S. E. 918.
§ 3050. (§ 2531.) New sureties. — If one or
more of the sureties on the guardian's bond
shall die, or become insolvent, or remove from
this State, or from other cause the security be-
comes insufficient, the ordinary may, of his own
motion or at the instance of any relative of the
ward, require the guardian to give other and
sufficient security, and on his failure so to do in
compliance with such order, the court shall re-
voke his letters of guardianship ' and appoint
some other person in his place.
See §§ 3976, 3043.
Effect of Failure to Demand New Sureties. — Where a
guardian has been regularly appointed and has given bond,
the death of the only surety on such bond will not abate
the letters of guardianship and render any act of the
guardian thereafter illegal and void. Prine v. Mapp, 81
Ga. 137, 5 S. E. 66.
Same — Bona Fide Purchasers. — If upon the death of the
surety upon the guardian's bond, the ordinary fails to re-
quire a new bond, and the guardian continues to act as
such and the ordinary recognizes the appointment and re-
ceives his returns, a purchaser at a guardian's sale will
not be affected by the failure of the ordinary to require
additional security of the guardian. Prine v. Mapp, 80 Ga.
137, 5 S. E. 66.
Status of New Sureties. — Where a guardian's bond was
executed for a specific amount, and subsequently one of
the sureties dies, and in a proceeding under this section
the guardian executed a second bond with new sureties, the
sureties upon such bond were co-sureties with those on the
first bond for any past or future waste. Remington v. Hop-
son, 137 Ga. 95, 72 S. E. 918.
§ 3051. (§ 2532.) Proceedings in case of mis-
conduct.— If the ordinary knows, or is informed,
that any guardian wastes or in any manner mis-
manages the property, or does not take due care
of the maintenance and education of his ward
according to his circumstances, or refuses to
make returns as required by law, or for any
cause is unfit for the trust, the ordinary shall
cite such guardian to answer to such charge at
some regular term of the court, when, upon in-
vestigation of his action, the ordinary may, in
his discretion, revoke his letters, or pass such
order as in his judgment is expedient under the
circumstances of each case. Act 1799, Cobb,
312; Act 1819, Cobb, 317; Act 1821, Cobb, 321;
Act 1828, Cobb, 326.
The religious belief of a guardian does not render him
unfit to discharge the guardianship, whatever that may be.
Maxey v. Bell, 41 Ga. 184.
New Guardian. — As to appointment of new guardian be-
fore letters of old guardian revoked, see note to § 3035.
Equity. — An infant may maintain a bill in equity, by
next friend, against guardian for misappropriation of funds.
Poullai v. Poullai, 76 Ga. 420, 422.
Appeal. — Where the court of ordinary rendered a de-
cision revoking letters of guardianship, an appeal will lie
from such decision to the superior court, though no issue
of fact be involved. Teasley v. Vickery, 133 Ga. 721, 66 S.
E. 918. For other cases, see 6 Cum. Dig. 755. As to re-
view of judgment of ordinary refusing to remove guardian,
see Martin v. Moore, 20 Ga. App. 569, 93 S. E. 223.
§ 3052. (§ 2533.) Motion by surety.— The
surety of any guardian on his bond, or, if dead,
his representative, may at any time make com-
plaint to the ordinary of any misconduct of his
principal in the discharge of his trust, or for any
other reason show his desire to be relieved as
surety; thereupon the ordinary shall cite the
guardian to appear at a regular term of the
court, and show cause why such surety shall not
be discharged; and upon hearing the parties and
their evidence, the ordinary may, at his discre-
tion, pass an order discharging such surety from
all future liability, and requiring such guardian
to give new and sufficient security or be dis-
charged from his trust; such new sureties shall
be liable for past as well as future waste or mis-
conduct of the guardian. And such discharged
surety shall be relieved only from the time the
new security shall be given. If new security is
not given, and the guardian's trust is revoked,
the discharged surety shall be bound for a true
accounting of such guardian with the new
guardian, or his ward if no other guardian is ap-
pointed. The death of a surety shall be a suffi-
cient ground for his discharge from future lia-
bility, on application of his representative and
the granting of the order. In all cases where
letters of guardianship are revoked, the sureties
[785]
§ 3052
HOW AND BY WHOM APPOINTED
3054
on the bond are liable for all the acts of the
guardian in relation to his trust up to the time
of his settlement with the new guardian or his
ward. Act 1805, Cobb, 314; Act 1810, Cobb, 317.
As to removal of guardian to another county, see § 3056.
As to application of this section to administrator's bonds
see § 397b.
Grounds for Discharge.— Under this section, a surety on
a guardian's bond can obtain relief in two distinct con-
tingencies; first, in case of misconduct of the guardian in
the discharge of his trust; second, when for any other rea-
son, the surety desires to be relieved. Means v. American
Bonding Co., 23 Ga. App. 453, 457, 98 S. E. 399. See also
National Surety Co. v. Morris, 111 Ga. 307, 36 S. E. 690.
Same— Misconduct.— "The words, 'any misconduct of his
principal in the discharge of his trust,' are obviously ex-
haustive of all acts, whether of commission or omission,
which pertain to the guardian's mismanagement oi the
estate, or the non-performance of any of the duties de-
volving upon him in his office. It follows that the words,
'any other reason,' which the surety may allege as con-
stituting the basis of 'his desire to be relieved' from the
bond, must relate to some other ground or grounds of re-
lief not ejusdem generis with those which arise from the
guardian's official misconduct. Want of personal integrity,
lack of business capacity, extravagant or reckless living,
indulgence in vicious or immoral habits, criminality, and
scores of other things which might be suggested, would
certainly afford good reasons for *a desire to be relieved as
surety.' " National Surety Co. v. Morris, 111 Ga. 307, 30S,
36 S. E. 690; Means v. American Bonding Co., 23 Ga. App.
453, 457, 98 S. E. 399.
Same— Illustration.— Under this section the discharge of
the surety was authorized where it appeared that the
guardian used funds of the ward in paying for land bought
by the guardian for herself and the title to which she took
in her own name, although she executed a promissory note,
payable to herself as guardian, for the amount so used and
■seven per cent, interest thereon, and, to secure its pay-
ment, mortgaged to herself as guardian land sufficient for
that purpose. Means v. American Bonding Co., 23 Ga.
App. 453, 98 S. E. 399.
When Surety May Move.— A surety is not bound to wait
till he becomes liable for actual waste or mismanagement.
He may reasonably anticipate the same and move for re-
lief in time to get relief. National Surety Co. v. Morris,
111 Ga. 307, 309, 36 S. E. 690.
Proceedings.— The surety on a guardian's bond can ob-
tain no discharge under this section, without a petition, as
required by § 4812, and having the ordinary to cite the
guardian to appear and show cause against the application.
The surety must sue in this manner for his discharge, and
process must isssue in terms of the law, that is, the guard-
ian must be cited. DuPont v. Mayo, 56 Ga. 304.
Same— Order of Discharge.— An order of discharge, based
on no such proceeding, but simply accepting a new bond al-
ready executed by the guardian, with satisfactory security,
in place of the old, and declaring a former surety dis-
charged, is void. DuPont v. Mayo, 56 Ga. 304. And there
is no presumption that more was done than is set forth in
the record. DuPont v. Mayo, 56 Ga. 304.
Effect of Discharge.— The discharge of the sureties upon
a guardian's bond releases such sureties from all future
responsibility. The new sureties are bound for all past and
future waste. Wood v. Wood, 1 Ga. 84.
Same— As Between Subsequent Sureties.— A surety af-
ter obtaining his discharge under this section although
liable to the ward for any past default of the guardian, is
not liable to a surety of the guardian upon a second bond
who has answered for that default in consequence of his
own statutory liability upon the second bond. This
liability of the second surety is primary, as between
himself and the first surety, and he has no right either
of indemnity or of distribution from the latter. Tit-
tle v. Bennett, 94 Ga. 405, 21 S. E. 62. The above case was
reviewed and approved in Snow v. Brown, 100 Ga. 117, 28
S. E. 77.
Rights of Discharged Surety. — Where a surety bond has
been discharged and the guardian continued in his office
upon giving new sureties, the former surety is not en-
titled, because of any devastavit or acts of mismanage-
ment committed prior to the discharge of the first surety,
to have the guardian pay into court the funds in his hands
belonging to his ward. Hooks v. Fidelity, etc., Co., 135 Ga.
396, 69 S. E. 484.
Nor can the outgoing surety, by proceedings instituted
subsequently to his discharge, interfere with the guardian,
who is continued in his office, in the discharge of his du-
ties, because of acts of mismanagement and the failure to
comply with the requirements of the law relative to his
duties which occurred prior to the discharge of the first
surety. Hooks v. Fidelity, etc., Co., 135 Ga. 396, 69 S. E.
484.
Primarily Liable for Past Devastavit. — Where a guardian
was appointed and gave bond, and subsequently one of the.
sureties, upon application, was released and discharged,
and the guardian was required to give a new surety, which
he did, on a subsequent proceeding by bill in equity, on
behalf of the wards, to recover from all the sureties for a
devastavit of the guardian, the liability of the discharged
surety and the second surety was not joint but several,
both being primarily liable to the wards and, as between
themselves, the last surety being first bound. Sutton v. Wil-
liams, 77 Ga. 570, 1 S. E. 175.
New Bond Cumulative. — See notes to § 3049.
§ 3053. (§ 2534.) Revocation does not abate
suit. — The revocation of letters of guardianship
shall not abate any suit pending for or against
the guardian, but the new guardian shall be
made a party by scire facias, as in case of the
death of a party.
As to proceeding in case of death of a party, see § 5613.
§ 3054. (§ 2535.) Suit on guardian's bond. —
Suit may be instituted against the guardian and
his sureties on his bond in the same action at
the instance of his ward, or a new guardian, or
any other person interested, without first suing
the guardian; and if the guardian is beyond the
jurisdiction of the court, or places himself in the
position of a debtor liable to attachment, or is
dead and his estate unrepresented, suit may be
commenced against the sureties alone: Pro-
vided, that the fi. fa. issued upon a judgment
obtained against the guardian and his sureties
shall not be levied upon the property of the
sureties until a return of 'nulla bona as to the
guardian, unless the property of the sureties is
being removed from the county. If the failure
to sue the guardian arose from his voluntary act,
the judgment against the sureties shall be con-
clusive in any suit against him. Act 1820, Cobb,
320; Acts 1851-2, p. 235; 1855-6, p. 145.
Cross References. — For full treatment, see 6 Cum. Dig.
727, 6 Enc. Dig. 838. As to practice in suits against ex-
ecutors and administrators, see §§ 4083, 4084. As to neces-
sity of acceptance of trust by trustee, see § 3774.
Section Applies to Suits Against Guardians Only. — The
exception to the rule that there shall first be a return of
nulla bona as to the guardian before proceeding against
the sureties, as to judgments recovered on bonds of guard-
ians, established by this section, does not apply to judg-
ments founded on the bonds of any other trustees. This
section will not be extended by construction. Manry v.
Shepperd, 57 Ga. 68.
Creditors of the guardian are interested in the adminis-
tration of the estate, and, therefore, when the provisions
of this section are complied with, such creditors are en-
titled to sue the guardian and his sureties. Eewis v.
Oliver, 96 Ga. 260, 22 S. E. 949.
Demand on Surety. — In a proceeding under this section,
where the guardian is dead, it is not necessary to make a
demand on the surety before suit. United States Fidelity,
etc., Co. v. Davis, 2 Ga. App. 525, 58 S. E. 777.
Estoppel to Deny Validity of Appointment. — Where a
guardian, upon his own motion is appointed as such, and
as a condition precedent to his appointment gives bond with
security for the faithful administration of the ward's es-
tate, he and the sureties on his bond are estopped, in a
suit on the bond, to deny the validity of his appointment.
Griffin v. Collins, 122 Ga. 102, 49 S. E. 827. See also, Hines
v. Mullins, 25 Ga. 696.
Must Obtain Judgment Against Guardian. — There must
be a binding judgment against a guardian generally, and
not on a particular fund, before his ward, who claims that
he has committed a breach of his bond, can sue the surety
thereon, unless the guardian be joined in the action, or is
without the jurisdiction, or has placed himself in the posi-
tion of a debtor liable to attachment, or is dead and his
estate is unrepresented. Forrester v. Vason, 71 Ga. 49.
Pursuant to the provisions of this section the guardian
[ 786 ]
§ 3055
POWERS, DUTIES, AND LIABILITIES OF GUARDIANS
§ 3059
shall be sued, so that his whole estate, present, and future,
be liable to a judgment which the sureties may have exe-
cuted on that estate before it can come upon heirs; and
more, that they may control such judgment and execution
against him so long as it remained of force, to reimburse
them what they had to pay. Forrester v. Vason, 71 Ga.
49, 53.
Equity Has No Jurisdiction. — By the laws of this state,
ample provision is made for actions at law on guardians',
administrators' and ' other trustees' bonds; and to that
forum parties must resort, unless they make a special case
by the bill. Osborn v. Ordinary, 17 Ga. 123.
§ 3055. (§ 2536.) A ward may sue his guard-
ian.— When any guardian shall fail or refuse to
settle and account with his ward upon his com-
ing of age, such ward may institute his suit in
the first instance against his guardian and sure-
ties without first suing his guardian.
See 6 Cum. Dig. 751.
§ 3056. (§ 2537.) Removing proceedings to
another county. — A guardian whose residence
is, or by removal or otherwise becomes, in a
different county from that of his appointment,
may have the privilege of removing the trust to
the jurisdiction of the ordinary of his own
county, by first giving bond and good security
to such ordinary, as if first appointed by him,
and filing a certificate of such fact with the or-
dinary by whom he was appointed. He shall
also obtain from such ordinary an exemplifica-
tion of all the records concerning his guardian-
ship, and of tHe order passed transferring the
same to the county of his residence, which ex-
emplification shall be filed with and recorded by
the ordinary of said county, who shall then have
the same jurisdiction over such guardian as if
first appointed by him. The sureties upon such
guardian's first bond shall be liable only for past
misconduct; the sureties upon the new bond
shall be liable for both past and future miscon-
duct. Acts 1851-2, p. 235; 1855-6, p. 145.
See § 3052 and note thereto.
When the provision of the act of 1812 (§ 4096) are fully
complied with the sureties on the first bond are discharged
from all further liability on account of their principal. Sel-
man v. Selman, 6 Ga. 432. The section above referred to
deals with removals of administrators, executors and
guardians to another county. Ed. Note.
§ 3057. (§ 2538.) Guardian ad litem.— When-
ever a minor is interested in any litigation pend-
ing in any court in this State, and has no guard-
ian, or his interest is adverse to that of his
guardian, such court shall have power to appoint
a guardian ad litem for such minor, which
guardian shall be responsible to such minor for
his conduct in connection with such litigation,
in the same manner as if he were a regularly
qualified guardian.
Cross References. — For full treatment of appointment of
guardians ad litem, see 7 Cum. Dig. 199, 7 Fnc. Dig. 305.
As to guardian ad litem in probate of wills, see § 3860.
As to application of next friend for homestead, see § 3393.
As to consent of guardian ad litem to rendition of decree
in vacation, see § 5428. As to appointment of guardian in
proceedings at chambers, see § 5439. As to guardians ad
litem in equitable proceedings, see § 5416. As to amend-
ment to allow appointment of guardian ad litem, see §
5524.
Rules for Admission. — A rule or order for the admission
of a guardian ad litem, must usually be applied for by the
minor, before pleading, and a copy of the order appointing
him, ought to be annexed to the plea, or recited in it.
Nicholson v. Wilborn, 13 Ga. 467. But a defect occurring
by not following these principles may be remedied at any
time before verdict, see § 5524.
Appearance by Attorney. — Generally, an infant can not
appear by attorney, but must appear by a guardian ad
litem, appointed for that purpose by the court, and the ap-
pointment of a guardian ad litem, is a power incident to
all courts. Nicholson v. Wilborn, 13 Ga. 467. And if the
minor has appeared by attorney, the plaintiff may move
to strike out such appearance and for the appointment
of a guardian. Nicholson v. Wilborn, 13 Ga. 467.
When Proper to Appoint. — A minor defendant to a bill
in equity having been served, in the absence of a guardian,
the appointment of a guardian ad litem to represent her
interest was proper. Kilpatrick v. Strozier, 67 Ga. 247.
Same — When Interest Adverse Guardian Already Ap-
pointed.— Under this section, a minor who has a guardian,
may sue by next friend when their interest is adverse to
that of the guardian. Sloan v. Nance, 45 Ga. 310.
Same — Feme Coverts. — Where suit is instituted against
a married woman she being an infant, she must appear by
guardian in all cases, where she has a separate estate, or
where, on any other account, her defense may be distinct
from that of her husband. Nicholson v. Wilborn, 13 Ga.
467.
Presumption. — In the absence of proof to the contrary,
the superior court will presume the acceptance of appoint-
ments made under this section, and that the court exercised
a proper discretion in such appointments. White v. Row-
land, 67 Ga. 546.
Irregular or Void Appointment. — If an irregular or void
appointment be made, it does not avoid the suit. Suits by
an infant are not void, and though defective in wanting a
guardian or next friend, the defect is amendable before ver-
dict and cured by verdict. White v. Rowland, 67 Ga. 546.
See § 5524.
Same — Necessity of Formal Order. — Where a guardian
ad litem is appointed and accepts, or does not decline the
trust, no formal order making minors parties by guardian
ad litem is necessary. Barclay v. Kimsey, 72 Ga. 725, 739;
Brown v. Anderson, 13 Ga. 171, 184; Deyton v. Bell, 81 Ga.
370, 8 S. E. 620.
And a decree against minors is good as to person ac-
quiring rights thereunder, though no formal order apnears
appointing the guardian ad litem for the minors. Watkins
v. I,awton, 69 Ga. 671.
SECTION 2.
The Powers, Duties, and Liabilities of
Guardians.
§ 3058. (§ 2539.) Power and duty of guard-
ian.— The power of the guardian over the per-
son of his ward is the same with the father over
his child, the guardian standing in his place; and
in like manner it is the duty of the guardian to
protect and maintain, and, according to the cir-
cumstances of the ward, to educate him.
For full and comprehensive treatment of the powers and
duties of guardians, see generally, 6 Cum. Dig. 734, 6 Fnc.
Dig. 844. As to parental obligation to support, educate, and
protect child, see § 3020.
In case there should be no father or mother, then the
guardian becomes the head of the family. Rountree v.
Dennard, 59 Ga. 629, 631.
Upon the marriage of an adult with a ward under age,
the rights and powers of the guardian cease, both as re-
spects her person and her estate, and the husband acquires
the same right and incurs the same obligations which he
acquires and incurs in case his wife is of age. Nicholson
v. Wilborn, 13 Ga. 467.
§ 3059. (§ 2540.) Returns. — Every guardian,
within twelve months after his appointment,
and by the first Monday in July in every year
thereafter, shall make a return to the ordinary
under oath, making an accurate exhibit of all
the property of his ward received by him up to
that time and since his last return, together with
an account current of his receipts and expendi-
tures, accompanied with the vouchers for the
same, and any other matter connected with the
said property, which said returns shall be exam-
ined by the ordinary, and if found correct shall
be allowed by him and entered of record with
the vouchers; and the judgment thus rendered
by the ordinary shall be prima facie evidence of
[787]
§ 3060
POWERS, DUTIES, AND LIABILITIES OF GUARDIANS
§ 3060
the correctness of said return in favor of said
guardian. If the guardian shall have, removed
beyond the limits of this State, the oath of his
surety shall be sufficient to verify the return;
and if the guardian be dead, his representatives
may make his returns as provided in case of de-
ceased administrators. Act 1799, Cobb, 312; Act
1810 Cobb, 317; Act 1820, Cobb, 320; Act 1843,
Cobb, 333; Act 1850, Cobb, 340; Acts 1851-2, p.
97; 1855-6, p. 146; 1860, p. 35; 1860, p. 33.
For full treatment of returns of guardians, see 6 Cum.
Dig. 746, 6 Enc. Dig. 873.
Editor's Note—The returns required of a guardian ate
not applicable to executors (see Lane v. -Carver, 153 Ga.
570 584, 113 S. E. 452). A guardian can make his returns
at any time within twelve months of his appointment. The
executor must make his first returns by the first Monday
in Tuly of the first year after his appointment, and one m
each year thereafter by the same date. The ordinary can
only cite a guardian to appear and show cause for his de-
lay in making his returns after the expiration of twelve
months from his appointment; and the guardian only for-
feits his commissions when he fails to make his return be-
fore the end of the year (see § 3063). Immediately after the
session of the July term of the court of ordinary in each
year the ordinary can cite the executor to show cause for
his neglect (see § 3996) and the executor failing to make
the returns required of him forfeits all commissions for
transactions during the year which no return is made.
Allowance of Returns.— See 6 Cum. Dig. 747, 6 Enc. Dig.
874. , ,. ,
Same— As Evidence.— The returns of a guardian, made
in good faith, are only prima facie evidence against him,
and may be explained by parol evidence so as to show the
actual truth of his accounts. Napier v. Jones, 45 Ga. 520;
Johnson v. McCullough, 59 Ga. 212, 228; Munroe v. Phil-
lips, 64 Ga. 32, 40; Lewis v. Allen, 68 Ga. 398, 401. For
full treatment, see 6 Enc. Dig. 875.
Accounts and Vouchers.— In all cases, the guardian mak-
ing his return should lay his account before the ordinary,
plainly setting forth, with sufficient certainty, his charges
against his ward. This account is the case he should prove.
The vouchers are his evidence to support it, and they should
be closely examined, and, if not satisfactory to the ordinary,
ought to be supported by other proof. Hendry v. Hurst,
22, Ga. 312, 316. But see Stell v. Glass, 1 Ga. 475 and Davie
v. McDaniel, 47 Ga. 195, 201.
Fraud committed by the guardian upon the ordinary in
procuring the allowance of his annual returns will vitiate
the returns and their approval only in so far as the fraud
extended. If it went to the whole of a return, the whole
would be vitiated; if only to certain items, these only
would be vitiated. Bonner v. Evans, 89 Ga. 656, 15 S. E-
906.
Pleading which attacks the returns made by a guardian
to the court of ordinary which have been examined and al-
lowed by the court, should point out specifically the items
of the returns on which the attack is made, and as to each
should disclose the cause or ground of the attack. It is
not enough to allege that the return for such and such a
year is unlawful as to a specific amount, without pointing
out the items alleged to be unlawful, and without stating
in what they consist. Bonner v. Evans, 89 Ga. 656, 15
S. E. 906.
Burden of proof is upon the party who seeks to impeach
the correctness of the return. Peavy v. Clemons, 10 Ga.
App. 507, 73 S. E. 756.
§ 3060. (§ 2541). Amount of expenditure. —
Every guardian shall be allowed all reasonable
disbursements and expenses suitable to the cir-
cumstances of the orphan committed to his care.
But the expenses of maintenance and education
must not exceed the annual profits of the estate,
except by the approval of the ordinary pre-
viously granted. The ordinary may, in his dis-
cretion, allow the corpus of the estate, in whole
or in part, to be used for the education and
maintenance of the ward. Act 1799, Cobb, 312;
Acts 1859, p. 37.
Cross References.— See 6 Cum. Dig. 742, 6 Enc. Dig. 860.
As to encroachment upon corpus of ward's estate for com-
missions, see note to § 3071. As to binding effect upon
[7i
ward's estate of contracts made for maintenance of ward,
see § 3071. As to expenditures for minors by executor or
administrator, see § 4007. As to expenditures by trustee,
see § 3769.
Primarily the income, and not the corpus, of a ward's
property is to be resorted to for the purpose of education,
maintenance, and making necessary repairs on the ward's
property. Little v. West, 145 Ga. 563, 89 S. E. 682.
Accumulated Interest. — If in the series of years in which
the guardian has managed his wards' estate, he has not
expended the corpus, he can not be held responsible for the-
profits or interest of the estate, though he may have spent
for his wards more than the profits and interest of a given
year that year, or less another year; provided, during the
whole period of his guardianship, he has not expended
more than the entire interest, and has disbursed it rea-
sonably and suitably to the circumstances of his wards, and
legally in other respects. Speer v. Tinsley, 55 Ga. 89, 90.
Discretion of Ordinary. — This discretion to encroach
upon the corpus for the maintenance and education of the
ward is confided to the ordinary, and to him only; he
represents the State, which, as parens patriae, stands in
loco parentis to minors, and does for them what it is rea-
sonable to suppose their parent, if in life, would do, and
what is for his family's interest and honor. The ordinary
is the chosen organ to exercise this authority, and he can-
not relegate it to another. Shipp v. McCowen, 147 Ga. 711,
715, 95 S. E. 251.
Same — Ratification. — It seems that where the trustee has
acted fairly and properly without the consent of the ordi-
nary previously given, and where prompt and regular an-
nual returns of his actions in that behalf have been made,
the ordinary, by his approval of such returns, may ratify
the action. Dowling v. Feeley, 72 Ga. 557; Shipp v. Mc-
Cowen, 147 Ga. 711, 95 S. E. 251.
One of the modes of giving the ordinary's consent to
the expenditure of more than the annual profits of the
ward's estate for the expenses of maintenance and educa-
tion, is by approving the regular annual returns of the
guardian when the returns show on their face that the
expenses have exceeded the income. Cook v. Rainey, 61
Ga. 452; Sturgis v. Davis, ' 157 Ga. 352, 121 S. E. 318.
Same — For Payment of Taxes. — -Where real estate of a
ward is impressed by liens for municipal taxes and street-
pavement assessments, and his guardian pays them off, the
guardian will be allowed, in an equitable accounting, to en-
croach upon the corpus of the estate for reinbursement.
where there are not sufficient funds arising from income.
The provisions of this section do not militate against this
ruling. English v. English, 149 Ga. 404, 100 S. E. 362.
Same — For Permanent Improvements. — But a guardian is
not authorized to sell or encumber the property of his ward
for the purpose of erecting permanent improvements on it;
or, if he erects permanent improvements on it with his own
money, he can not obtain a legal order of the ordinary, or
court of ordinary, to sell it to reimburse himself. Little */.
West, 145 Ga. 563, 89 S. E. 682; Sturgis v. Davis, 157 Ga.
352, 121 S. E. 318; Burke v. Mackenzie, 124 Ga. 248, 52 S.
E. 653.
Same — Editor's Note. — There is a distinction between
contracts of this nature (for improvements) and contracts
for maintenance and support of the ward. The former
cases are totally unauthorized and can not be ratified by
the ordinary (Sturgis v. Davis, 157 Ga. 352, 354, 121 S. E.
318). And this is true although the expenditures are em-
braced in prompt and regular returns of the guardian
which have been approved by the ordinary.
•Quality of Board Furnished. — The character and quality
of the board furnished and the clothing, etc., supplied may
be proved by one acquainted with the worth of them at the
various times when furnished,- but the amounts allowed as
credits on this account must not exceed the annual income
of the property during the minority of the beneficiary.
Dowling v. Feeley, 72 Ga. 557.
Necessities — Representations of Ward. — The mere fact
that a minor represents to his guardian that it is necessary
to have money for clothes, etc., will not per se make it a
necessity. It might operate on the question of good faith;
or if she represented there were such necessities, and he
acted on these representations in good faith, they might
estop her from denying that the necessities in fact existed.
Little v. West, 145 Ga. 563, 567, 89 S. E. 682. See 6 Cum.
Dig. 862.
Same — Unnecessary Traveling. — Where a guardian ex-
pends money to send the ward without the state to pre-
vent her marriage against the guardian's wishes, and the
evidence disclosing no valid objection to the man whom the
ward wished to marry, it was no error to refuse to allow
the guardian expenses incurred. Wynn v. Bryce, 59 Ga.
529.
3]
§ 3061
POWERS, DUTIES, AND LIABILITIES OF GUARDIANS
§ 3065
Same — Medical Services. — A guardian is entitled to
;harge his ward with necessary medical expenses incurred.
Poole v. Wilkinson, 42 Ga. 539, 540.
Same— Attorney's Fees.— Where a guardian puts out the
money of his ward at interest, and has to resort to suits
co collect it back, it is right to allow him reasonable at-
torney's fees from the collection of moneys which were cer-
tainly the ward's. Royston v. Royston, 29 Ga. 82; Zellner
V. Cleveland, 69 Ga. 631, 634.
§ 3061. (§ 2542.) Binding out indigent or-
gans.— If the annual profits of the estate of any
>rphan, with or without a guardian, are not
;ufficient for his education and maintenance, and
he ordinary shall not allow the corpus of the
sstate to be used for such education and main-
enance, it shall be the duty of the ordinary
orthwith to bind out such orphan for the whole
>r such part of the time of his minority as to
nm shall seem best, and on such conditions as
pll most promote the interest of such orphan,
n all cases requiring that such orphan shall be
illowed to attend the nearest school, where edu-
ction is free to him, at least three months in
he year. Act 1799, Cobb, 313; Acts 1865-6, p.
I.
As to power of parent to bind out minor child, see § 3123.
§ 3062. (§ 2543.) Ill treatment.— It shall be
he duty of the ordinary and of the guardian of
uch orphan to be informed as to his treatment,
tnd on complaint of ill usage, or any conditions
>roken, the ordinary shall bind such orphan to
ome other person. Act 1799, Cobb, 313.
§ 3063. (§ 2544.) Failing to make returns. —
rhe ordinary shall keep a docket of all the
guardians liable to make returns to him, and
ipon the failure of any one to do so by the time
equired by law, he shall cite the said guardian
o appear and show the reason for his delay;
md every guardian who shall fail or refuse to
nake his return before the end of the year, shall
eceive no commission or compensation for any
ervice done during that year, unless by special
>rder of the court of ordinary, exonerating him
rom all blame. Act 1764, Cobb, 304, 305; Act
850, Cobb, 340; Acts 1855-6, p. 147.
Cross References. — See Editor's Note to § 3059. As to
mnual returns of administrators, see § 3992. As to amount
>f commissions, see §§ 3071, 4062.
Effect of Failure to Make Returns. — The failure of an
:xecutor or guardian to make returns is an omission of
iuty, and therefore a breach of trust, and throws on him
:he burden of proving to the satisfaction of the court that
le has discharged his trust with fidelity. Wellborn v.
Rogers, 24 Ga. 558.
But the failure of the guardian to make returns of the
nterest accumulated in his hands is not by itself sufficient
:o authorize the finding of fraud and the charging of com-
xnmd interest. Royston v. Royston, 29 Ga. 82.
Forfeiture. — If returns are shown to have been made by
:he first Monday of July, or by the end of the year, com-
nissions are to be allowed; otherwise not for the year of
lefault, if guardian be cited to appear and does not show
:ause for delay satisfactory to the ordinary. Byne v. Ander-
son, 67 Ga. 466, 473. For cases before this section, see
i Enc. Dig. 877.
§ 3064. (§ 2545.) Guardians may sell estates
or reinvestment. — By order, in term or vaca-
ion, of the judge of the superior court of the
county of the guardian's appointment, any
guardian may sell the whole or any part of the
:state of their wards, for reinvestment, upon
such terms and at such time and place as said
udge may order. Acts 1889, p. 156.
Cross References.— See 7 Cum. Dig. 207, 7 Enc. Dig. 315.
As to investments in stocks, see § 3070. As to invest-
ments in land, see § 4008.
Editor's Note.— This section was taken from the act of
1889, p. 156. Prior to the enactment of this section tb»
power to grant orders for the sale of property of wards
for the purpose of reinvesting was vested in the ordinaries.
(See Mills v. Geer, 111 Ga. 275, 36 S. E- 673.) By the act
of 1889 (as embodied in this section) the legislature took
this power away from the ordinaries and conferred it upon
the judges of the superior court. This legislative action
doubtless emanated from the fact that judges would exer-
cise bet'ter judgment and discretion than ordinaries in mat-
ters of this nature (See Crawford v. Broomhead, 97 Ga. 614,
617, 25 S. E. 487). Sales of the guardian for all other pur-
poses are still within the direction of the ordinary. (See
§ 3066.)
Section Not Retroactive. — This section was not applied
in the following cases as the orders involved in the con-
troversies were issued prior to the enactment of the sec-
tion. Mills v. Geer, 111 Ga. 275, 36 S. E. 673; Webb v. Hicks.
117 Ga. 335. 43 S. E. 738; Morehead v. Allen, 131 Ga. 807,
63 S. E. 507; Powell v. Heyman, 143 Ga. 728, 85 S. E. 89:.
In the first three of these cases, it is obvious from the re-
ports that the order emanated before the section was passed,
and in fact in Morehead v. Allen this is stated as the rea-
son for not applying the section. An examination of
Powell v. Heyman, however, fails to disclose the date of
the litigated order; but as the rule there stated is the con-
verse of that declared by this section it is to be presumed
that one case is in line with the others here cited. This
supposition is strengthened by the fact that Webb v. Hicks
is cited in the Morehead case as authority.
Section Applicable to Lunatics. — The provisions of this
section are applicable to guardians of lunatics, and confer
authority on the judge of the superior court to grant an
order for the sale for reinvestment, by the guardian of a
lunatic, of the whole or any part of his ward's estate.
Ocmulgee River Lumber Co. v. Applebv, 136 Ga. 26, 70 S.
E. 346.
Applied in Dickey v. Sweeney, 16 Ga. App. 559, 85 S. E.
766.
§ 3065. (§ 2546.) Notice of application.— Be-
fore such application is made, such guardian
shall publish once a week for four weeks in the
newspaper in which county advertisements are
usually published in the county of said guard-
ian's appointment, and, if the property sought to
be sold is land, also in the county where the
land lies, a notice of his intention to apply for
such order to. sell and reinvest, which notice
shall describe the property sought to be sold,
and the reasons for making the application, and the
time and place where said application will be made.
If said application is made in vacation, the judge
may hear and pass upon the same at any place
within his judicial circuit, as business heard in
chambers. Said guardian shall, in his petition, fully
describe the property sought to be sold, the in-
come thereon, the expense, if any, of keeping the
same, the reasons for asking the sale, describe the
property in which he wishes to reinvest the pro-
ceeds, and whether he seeks to sell the property
private^ or at public outcry. Said petition shall be
verified by the oath of the guardian. The guardian
shall cause a copy of said petition to be served per-
sonally upon each of his wards who is over the age
of fourteen, and shall also cause a copy of said peti-
tion to be served personally upon one or more of
of the next of kin of said ward, which next of kin
shall be other than the guardian. Service of all
said copies shall be made at least ten days before
the time of hearing the application. At the hearing
the judge, before granting the application, shall
carefully examine into the matter, and satisfy him-
self by evidence other than the verified petition that
said order to sell and reinvest should be granted.
The judge shall also appoint a guardian ad litem,
as provided for the sale of trust estates where
[ 789
§ 3066
POWERS, DUTIES, AND LIABILITIES OF GUARDIANS
§ 3070
minors are interested. Acts 1889, p. 156; 1890-1, p.
229.
See § 3760. As to appointment of guardians ad litem, see
§ 3057.
Notice. — The record upon the minutes of the superior
court of a proceeding under section 3064 and this sec-
tion is not such notice as will disclose plaintiff's equity as
to charge a purchaser for value. Williams v. Smith, 128
Ga. 306, 57 S. E. 801.
The newspaper in which the sheriff advertises being the
medium or official organ for county advertisements, this
section manifestly means that the notices required therein
shall be published in that paper.. Coffee v. Ragsdale, 112
Ga. 705, 37 S. E. 968.
Service. — In a proceeding brought by a guardian for the
purpose of making a sale of property of minors and a re-
investment of the proceeds, it is not necessary that minors
under the age of fourteen years should be served. Furr v.
Burns, 124 Ga. 742, 53 S. E. 201.
§ 3066. (§ 2547.) Sales. — All other sales of any
portion of the property of the ward shall be made
under the direction of the ordinary, and under the
same rules and restrictions as are prescribed for
sales by administrators of estates. Act 1811, Cobb,
319; Act 1827, Cobb, 325; Acts 1851-2, p. 95.
As to sale of infant's property, generally, see 7 Cum. Dig.
207, 7 Enc. Dig. 315. As to sale of perishable property, see
§ 4021.
Purposes of Sale Limited. — The purposes for which an
ordinary may order an encroachment on the corpus of a
minor's property do not include a desire on the part of the
guardian to buiid additional houses, or to make permanent
improvements or betterments. Little v. West, 145 Ga. 563,
89 S. E. 682.
Private Contracts for Sale. — A private contract made
with a guardian for the purchase of the ward's land for a
stipulated price, at a future public sale, under a proper leave
from the ordinary, is contrary to public policy. Downing v.
Peabody, 56 Ga. 40.
And money advanced to a guardian upon such a contract,
in anticipation of a s'ale which he did not live to consum-
mate, can not, as against the ward, be treated as a pay-
ment to a succeeding guardian. Downing v. Peabody, 56
Ga. 40.
Sale for Maintenance of Ward by Father. — Although it
is the duty of a father to provide for the maintenance and
education of his children until their majority yet if he is
unable to do so from his own means, but has in his hands
as their guardian an estate belonging to them, the ordi-
nary may lawfully grant an order to sell the property for
that purpose. Crawford v. Broomhead, 97 Ga. 614, 617, 25
S. E. 487; Prine v. Mapp, 80 Ga. 137, 5 S. E. 66.
Same — Necessity of Service. — Section 5565 (providing for
service on minors) is not applicable to a proceeding by a
guardian in the court of ordinary for an order authorizing
him to sell the lands of his minor ward for his support and
education. Allen v. Morris, 156 Ga. 41, 118 S. E. 640.
Guardian Ad Litem Not Necessary. — Where a guardian
applies to the ordinary for leave to sell the estate of his
ward, it is not necessary to appoint a guardian ad litem to
represent such ward, and a failure so to do will not avoid a
sale made under an application which has been published,
and upon which leave to sell has been granted, as pro-
vided by the provisions of this section. Prine v. Mapp,
80 Ga. 137, 5 S. E. 66. This holding was approved in Allen
v. Morris, 156 Ga. 41, 118 S. E- 640.
Effect of Sale Without Order.— A sale of realty belonging
to minors by their guardian without an order from the
court of ordinary, is not binding upon them. Wells v.
Chaffin, 60 Ga. 678.
When a purchaser of real estate claims title thereto by
virtue of a guardian's sale, he must show an order of the
ordinary granting to the guardian leave to sell it. Wells
v. Chaffin, 60 Ga. 678, 679.
That a _ guardian might be justifiable under this section,
in collecting a note belonging to his ward in Confederate
money, would not authorize him to sell it for such money
to a third person, without an order of sale from the ordi-
nary. Johnson v. McCullough, 59 Ga. 212.
Sale by Ward. — An infant ward can not make a valid
contract of sale of his personal property, with or without
the consent of his guardian. And where a sale is made by
the ward, the guardian can recover the property so sold, at
any time during the infancy of his ward. Hughes v. Mur-
phy, 5 Ga. App. 328, 63 S. E. 231.
Notice of Purchaser.— One who buys municipal or State
bonds from a guardian at private sale and without any court
order, after he has had actual or constructive notice that
they belong to the estate, is liable to the ward for the
bonds, if their proceeds are misappropriated by the guard-
ian. Ignorance of the law in respect to such sales will not
protect the buyer. Dickey v. Sweeney, 16 Ga. App. 559,
85 S. E. 766.
§ 3067. (§ 2548.) Renting of lands. — Every
renting of lands of an orphan, unless by special or-
der of the ordinary, shall be in public to the highest
bidder, and under the same rules as sheriff sales,
except that credit may be given on good security.
§ 3068. (§ 2549.) May contract for labor. —
Guardians may make contracts for labor or service,
for the benefit of the estates of their wards, upon
such terms as they may deem best, and all such
contracts made in good faith shall be a charge upon
and bind said estates whenever the same are ap-
proved by the ordinary of the county. Acts 1866,.
p. 87.
As to allowance of money expended by the guardian out
of the corpus of the estate for permanent improvements, see
note to § 3060. As to such contracts by other fiduciaries,.
see §§ 3766, 4013. As to limitations on power of guardian to-
find his ward's estate, see § 3074.
§ 3069. (§ 2550.) Cultivation and managing
plantation. — When it is manifestly expedient,,
guardians, under an order of the court of ordinary,,
may cause plantations of their wards to be man-
aged and cultivated for their benefit.
Editor's Note. — This section was enacted in 1829.
Cobb 327. The original purpose of the act was to remedy
the injuries sometimes resulting to slaves and plan-
tations belonging to minors, from the practice of hir-
ing and renting them indiscriminately to the highest
bidder, and to allow the guardian under certain con-
ditions to keep such slaves together and have them
marked for the benefit of the minor. This act was codi-
fied in the code of 1863 and remained on the statute books
in its original form until the acts of 1879, (Acts 1878-9, p.
69). By this act the act of 1829 was amended by striking
out that portion which allowed the guardian to invest in
lands for the purpose of cultivation, which appeared in the
code of 1867 as § 1823. The effect of this amendment was
to leave this original act as it now appears in this section
(For a case construing this section as it was originally en-
acted. Skelton v. Ordinary, 32 Ga. 266). It was said ii
Johnson v. Parnell, 60 Ga. 661, 665, that "since the aboli
tion of slavery the policy of the state * * * seems to be
that the property of intestates shall not be kept together
by administrators from year to year, and marked for the
benefit of the estate, but that the same shall be duly ad-
ministered and turned over to the guardians of the minors,
if there be any, who may have the plantations of their
wards worked by hired labor for the benefit of their wards"
(See § 3068). This seems to be the true construction to
be placed upon these sections (this section and § 3068).
§ 3070. (§ 2551.) Investment in stocks. — Any
guardian, in his discretion, may invest any funds of
his ward in his hands in stocks, bonds, or other
securities issued by this State. In every such case
his return shall set forth the time of such purchase,
the price paid, and the name of the person from
whom purchased. Act 1845, Cobb, 333; Act 1847,
Cobb, 337; Acts 1851, p. 32.
Cross References.— See 6 Cum. Dig. 738, 6 Enc. Dig. 854 j
As to investments in lands, see § 4008. As to sales for re-
investment, see § 3064. As to investments in municipa
bonds, see § 3765. As to investments by administrator, se<
§ 4011. As to investments by trustee, see §§ 3763, 3764.
Not Compulsory. — By the provisions of this section thf|
guardian may invest the funds of his ward in state se
curities, but this is not compulsory upon the guardian!
Brown v. Wright, 39 Ga. 96, 100; Springer v. Oliver, 2
Ga. 517, 521.
In Confederate Bonds. — For a collection of cases dealing
with investments in confederate bonds, see 6 Cum. Dig
857.
[ 790 ]
§ 3071
SETTLEMENT OF GUARDIAN
§ 3076
§ 3071. (§ 2552.) Commissions. — Guardians
shall be allowed the same commissions for receiv-
ing and paying out the estates of their wards as are
allowed to administrators. Extra compensation
ind traveling expenses shall be allowed to them up-
3n the same principles as to administrators. Acts
1847, p. 337; 1851-2, pp. 99, 100; 1857, p. 61.
Cross References.— See 6 Enc. Dig. 876. As to forfeiture
of commissions, see §§ 3063, 3073, 4069. As to commissions
allowed ordinaries, see § 4062. As to extra compensation,
see § 4067.
General Rule. — Where a guardian receives and disburses
the estate of his ward, he is entitled to statutory commis-
sions, unless he forfeits them on grounds provided by law;
and in an accounting between the guardian and his ward,
such commissions may be charged against the corpus of
the estate as well as the income. English v. English, 149
Ga. 404, 100 S. E. 362.
On Interest Made. — Guardians are entitled to ten per cent
:ommissions on interest made provided they shall return
the interest so made "to the ordinary so as to become
;hargeable therewith as part of the corpus of the estate."
Griffin v. Collins, 125 Ga. 159, 53 S. E. 1004. See § 4063.
Commissions on Commissions. — In a guardian's account
jommissions should not be allowed en commissions paid by
the guardian to himself. Griffin v. Collins, 125 Ga. 159, 53
3. E. 1004.
§ 3072. (§ 2553.) If there be two guardians. —
'.i the guardian resigns or dies, or is removed under
iny circumstances, no commissions .shall be
illowed for turning over the estate to a new guard-
an, or to the new guardian for receiving the same;
ind where a guardian is removed for waste or gross
nismanagement, no commissions shall be allowed
or any of h#is services.
§ 3073. (§ 2554.) Sureties bound, etc. — If the
ippointment of a guardian for any cause is declared
roid, his sureties shall nevertheless be responsible
)n the bond for any property which may have been
eceived by him by virtue or reason of his appoint-
nent.
Pursuant to the provisions of this section the sureties
ipon a guardian's bond are estopped to deny the guardian-
ship of one who was guardian by estoppel. Griffin v. Col-
ins, 125 Ga. 159, 53 S. E. 1004. See also Griffin v. Collins,
122 Ga. 102, 49 S. E- 827.
§ 3074. (§ 2555.) Contracts by guardians. — The
juardian can not borrow money and bind his ward
herefor, nor can he, by any contract other than
hose specially allowed by law, bind his ward's
>roperty, or create any lien thereon.
Cross References. — As to contracts for labor, see § 3770.
For a collection of cases in which this section was applied,
see 6 Cum. Dig. 737. See also 6 Enc. Dig. 849.
Necessaries Purchased on Credit.— A guardian is not per-
mitted by law to bind the estate of his ward by a contract
'or the purchase of goods on credit, even though the goods
je for the use of the ward and properly classed as neces-
saries. Fidelity, etc., Co. v. Rich & Bros., 122 Ga. 506, 50
3. E. 338; First Nat. Bank v. Mead, 145 Ga. 608, 89 S. E-
581.
Contracts for Maintenance. — Without the approval of the
ordinary, a contract entered into by one as guardian of
;he property of his ward to pay another for the mainte-
lance and education of the ward can not support a judg-
ment binding the corpus of the ward's estate. McQueen v.
Fisher, 22 Ga. App. 394, 95 S. E. 1004.
Improvement of Real Estate. — A contract for the im-
provement of the real estate of the ward by the erection
>f buildings and improvements thereon is not one which the
aw authorizes the guardian to enter into and charge the
ward's estate therefor. Sturgis v. Davis, 157 Ga. 352, 121
3. E. 318; Burke v. MacKenzie, 124 Ga. 248, 52 S. E. 653.
Insurance. — The fact that, pursuant to this section, a
guardian can not by any contract other than those specially
illowed by law, bind his ward's estate, would not relieve him
:rom the duty of insuring the ward's property, if ordinary
:are and prudence required its insurance. Clark v. Leverett,
159 Ga. 487, 494, 126 S. E. 258. Lack of funds, might, how-
ever, excuse him for neglect to insure. S. C. Where such
insurance is taken and the property is destroyed by fire,
the proceeds stand in the place of the property and should
be used to rebuild the property. S. C.
Promissory Note of Guardian. — Guardians, and other per-
sons acting en autre droit are by our law generally held
personally liable on promissory notes, because they have
no authority to bind ex directo the persons for whom, or
for whose benefit, or for whose estate they act; and hence
to give any validity to a note they must be deemed per-
sonally bound as makers. Howard v. Cassels, 105 Ga. 412,
415, 31 S. E. 562; Lovelace v. Smith, 39 Ga. 130.
Liability of Surety. — A guardian can not, by any con-
tract, bind the estate of his ward so as to render his se-
curity liable therefor, other than such as are especially al-
lowed by law. Lovelace v. Smith, 39 Ga. 130.
Where Power Given by Will. — If the power to contract
was conferred by will, then the contract made by the
guardian depends for its validity on that instrument, and
the effect of the judgment rendered on such a contract is
determined, not by the law regulating the power of guard-
ians, but by the powers given him by the will. Howard
v. Cassels, 105 Ga. 412, 416, 31 S. E. 562.
Power of Assignment. — The legal title to promissory
notes and other evidences of debt taken by a guardian, is
in such guardian, and he had the right to collect or sell
and transfer the same passing the legal title thereof to the
transferee. Fountain v. Anderson, 33 Ga. 372; Dean v.
Donalson, 2 Ga. App. 462, 58 S. E. 679. For other cases,
see 6 Cum. Dig. 851.
Burden of Proving Authority.— It is incumbent upon one
seeking to charge the ward's property by a contract of the
guardian to show that the claim set up by him is one which
the law specially authorized the guardian to contract and
bind the ward's property therefor. If the claim of the
plaintiffs is such that the ward's estate is chargeable there-
for, it must be under the provisions of § 3068; for there is
no other which has any bearing upon the subject.
Burke v. MacKenzine, 124 Ga. 248, 249, 52 S. E. 653.
§ 3075. (§ 2556.) May appoint attorney. — The
guardian may appoint an attorney in fact to act for
him where he is unable to act himself, and he and
his sureties are bound for the acts of such attorney
as if it were his personal deed. Acts 1855-6, p. 148.
1860, p. 31.
See §§ 3572, 4004.
Pursuant to the provisions of this section a guardian had
power to appoint an agent to act for him in his absence in
the confederate army, and any act of the agent within the
scope of his authority would be as valid as that of the
guardian. Tarpley v. McWorter, 56 Ga. 410.
SECTION 3.
Settlement of Guardian, Resignation, and Letters
Dismissory.
§ 3076. (§ 2557.) Settlements before the ordi-
nary.— A ward, on arriving at majority, or a new
guardian legally appointed, may apply to the ordi-
nary for an order requiring the guardian to ap-
pear and submit to a settlement of his account.
Such citation shall be served as other citations,
and shall be returnable to a regular term of the
court. If the guardian fails or refuses to appear
as cited, the court may proceed ex parte.
Constitutionality. — This and the five following sections
were held to be constitutional in Davis v. Harper, 54 Ga.
180.
Substantial Compliance. — A petition by a ward directed
to the ordinary for the purpose of citing her guardian to a
settlement, which alleged that the petitioner was twenty-
one years of age, and that the defendant was her guardian,
and asked that he be cited to appear before the court for
an account and settlement with petitioner, was in sub-
stantial compliance with this section. Weldon v. Patrick,
69 Ga. 724.
Marriage of Ward. — Under the proper construction of the
Act of 1866 (§ 2993), securing to the wife the property she
had at marriage, or that may come to or be acquired by
her during coverture, a guardian can not make a com-
promise or accord and satisfaction with his female ward and
her husband for her claim against him as her guardian,
[791]
§ 3077
SETTLEMENT OF GUARDIAN
§ 3084
who being at the time a minor and having married after
the passage of said act. Johnston v. Janes, 48 Ga. 554.
Deceased Guardians. — In the absence of extraordinary
circumstances such as threatened waste, insolvency and
the like,, the executor of a deceased guardian will not be
compelled to turn over to the ward property of the trust
estate, within the twelve months allowed the executor by
§ 5596. Cunningham v. Schley, 34 Ga. 395, 396. .
Nonresident Guardians.— A guardian who has obtained
letters of guardianship in one county but lives in another
county becomes a quasi officer of the court appointing him,
and may be cited by the ordinary of that county. Usry
v. Usry, 82 Ga. 198, 8 S. E. 60. See § 4073.
But an ordinary does not have jurisdiction to cite a guard-
ian for settlement who was not appointed by him and
where the guardian had never, in any way, been subject
to the jurisdiction of such ordinary. And the acknowledg-
ment of service of the citation was no waiver of the juris-
diction where the guardian did not appear or plead to the
citation. Jackson v. Hitchcock, 48 Ga. 491.
Former Guardian. — Upon arriving at age, the ward can
cite a former guardian, to appear before the ordinary for
a settlement of her accounts, whether she was in fact,
guardian at the time of such citation and hearing or not.
Hood v. Perry, 73 Ga. 319.
§ 3077. (§ 2558.) At instance of the guardian.—
The guardian shall, in like manner, be allowed to
cite his ward, or a new guardian, to appear and be
present at a settlement of his account.
As to right to reopen settlement, see § 3084. As to con-
stitutionality of this section, see note of Davis v. Harper,
54 Ga. 180, under § 3076.
§ 3078. (§ 2559.) Duty of the court.— Upon the
return of such citation, the court shall proceed to
examine all the returns and accounts of such
guardian; to hear all evidence which may be pro-
duced by either party; and to make a full, fair,
and final settlement between such guardian and
his ward,, making a full record of such final set-
tlement.
Cross References. — As to returns of guardian, see § 3059.
As to right of ward to reopen settlement, see § 3084. As
to allowance of expenditures, see § 3060. As to when let-
ters of dismission may be granted, see § 3086.
Examination by Ordinary. — It is the duty of the ordi-
nary, in passing upon all these accounts, and especially
upon the final account, with a view to granting the guard-
ian a discharge, to ascertain, before doing so, that all
the duties of the trust have been fully performed, and this
essential fact must be made to appear by a careful
scrutiny and examination by him of the various items
thereof and the vouchers sustaining them. Poullain v.
Poullain, 76 Ga. 420, 447, 6 Enc. Dig. 883.
§ 3079. (§ 2560.) Continuance. — The court may
allow such continuances as the principles of jus-
tice require.
As to continuances, generally, see §§ 5710, et seq. For a
full and comprehensive treatment of continuances, generally,
see 3 Cum. Dig. 960, 3 Enc. Dig. 407.
§ 3080. (§ 2561.) Proceedings.— Such other pro-
ceedings may be had in the case as are usual in
other causes in said court.
For full treatment of court of ordinary, see generally,
9 Cum. Dig. 125, 10 Enc. Dig. 35.
Removal to Federal Court. — A court of ordinary has juris-
diction to render a full and final judgment on a citation
for final settlement by a guardian; and after trial in such
court, and appeal to the superior court, an application for
removal to the circuit court of the United States came too
late. Stafford v. Hightower, 68 Ga. 394.
The right of appeal extends to cases where the ordinary
has given judgment against a guardian under a citation for
a settlement. Hobbs v. Cody, 45 Ga. 478.
§ 3081. (§ 2562.) Power of ordinary.— It shall
be in the power of the ordinary to order any
property in the hands of the guardian to be de-
livered to the ward or the new guardian, and
also to issue an execution for any balance of
money found due by the guardian to the ward.
If the ward does not appear, the court may pass
an order stating the balance found due from the
guardian, which balance shall not bear interest
from that date until demanded by the ward or
new guardian.
Attachment for Contempt. — Defendant can not be at-
tacked for contempt for failure to pay judgment. See note
of Barrow v. Gilbert, 58 Ga. 70, under § 3082.
Judgments of Court of Ordinary. — The orders of courts
of ordinary in this state, connected with the settlements
of guardians and wards, are judgments of courts of gen-
eral jurisdiction, and the necessary jurisdictional facts need
not appear on the face of the proceedings to render them
valid. Weldon v. Patrick, 69 Ga. 724.
§ 3082. (§ 2563.) Enforcement of decision. — If
the guardian shall fail or refuse to deliver to the
ward the property in his hands, ordered to be de-
livered by the court, the ordinary shall have
power to attach him for contempt, and imprison
him in the common jail until he shall comply with
such order, such proceedings to be had in the is-
suing of such attachments as are usual in courts
of equity.
Attachment for Contempt.— A judgment for money found
to be due by a guardian to his ward, on a settlement be-
fore the ordinary, must be collected by process of execu-
tion. An attachment for contempt, based on the failure of
the guardian to pay such judgment, and a return of nulla
bona on the execution, does not lie. Barrow v. Gilbert, 58
Ga. 70.
The fact that the guardian holds property which has been
set apart to him as a homestead, does not render the pro-
ceedings for contempt proper. Barrow v. Gilbert, 58 Ga. 70.
And in Browning v. Hadley, 33 Ga. 271, it was held that
where on account of existing conditions the guardian was
unable to comply with the order of the court to pay the
amount of his indebtedness he was not subject to attach-
ment for contempt.
Section Applicable to Foreign Judgments. — See § 3111.
§ 3083. (§ 2564.) Final receipts. — Any guardian,
by having his final receipt from his ward attested
by a judge, justice of the peace, or notary public,
may cause the same to be recorded by the clerk
of the superior court of the count}'- of his resi-
dence; and the original, or a copy thereof, shall
be admitted in evidence on the same terms as reg-
istered deeds. Act 1834, Cobb, 329.
As to conclusiveness of settlements, see § 3084. As to rec-
ord of final receipt to administrator, see § 4079.
Receipts in full by wards to their guardian, which, hi ex-
press terms, discharge the guardian from all liability, may
be explained by parol, and will only cover such matters as
were intended to be covered thereby. Alexander v. Alex-
ander, 46 Ga. 284.
A receipt in full by a ward to his guardian, discharging
him from all claims the ward may have against him, in
law or in equity, does not convey- to the guardian any title
to the land held by the guardian for him, even though the
same be held under an implied trust, especially if, at the
time of the receipt, the ward has reason to believe that the
title of the land is to the guardian as guardian. Alexander
v. Alexander, 46 Ga. 284.
§ 3084. (§ 2565.) Right of ward to reopen set-
tlement. — No final settlement made between
the guardian and ward shall bar the ward, at any
time within four years thereafter, from calling
the guardian to a settlement of his accounts, un-
less it is made to appear that the same was made
after a full exhibit of all the guardian's accounts,
and with a full knowledge by the ward of hisi
legal rights.
Cross References. — For a full and comprehensive treat
ment of limitation of actions, generally, see 8 Cum. Dig.:
300, 9 Enc. Dig. 1. As to right to reopen administrator's
settlements, see § 4090. As to fraud on part of guardian
as extending time, see § 4380.
General Rule. — If, after the ward arrived at full age, the
guardian or trustee settled with her and took her receipt!
[792]
§ 3085
SETTLEMENT OF GUARDIAN
§ 3087
and acquittance from all further liability to her, and if this
was done without fraud, she would have to proceed within
four years after the settlement was made to open the same;
otherwise she would be barred under this section. Stidham
v. Sims, 74 Ga. 187.
Condition of the Estate. — If a guardian settle with his
ward out of court, it is his duty to inform her concerning
the condition of her estate, that she may act with full
knowledge, but it is not incumbent on him in all cases to
make a precise and detailed statement of receipts and ex-
oenditures, debts with interest on them, etc. Steadham v.
Sims, 68 Ga. 741. .
Prima Facie Binding. — "In the case of Steadham v. Sims,
38 Ga. 741, this section was, in effect, construed as mean-
ing that in the absence of a full exhibit of the guardian's
accounts, and full knowledge by the ward of his rights,
receipts in final settlement of the guardian's account would
oe prima facie binding upon the ward only after the lapse
of four years." Griffin v. Collins, 122 Ga. 102, 109, 49 S.
EJ. 827.
Same — Onus. — And if the ward desires to show fraud or
other lawful reason in avoidance of them, the onus is on
ler to do so. Steadham v. Sims, 68 Ga. 741.
Ward Acting with Knowledge.— If the ward at the date
of the settlement was of full age, and acted with her eyes
open to the facts of the case, she will be concluded by the
settlement, though she seeks to open it in less than four
years from its date; but if she was ignorant of the facts,
or mistaken, or defrauded, she will not be concluded.
Adams v. Reviere, 59 Ga. 793.
Re-opening Relates to Parties. — The right to re-open a
final settlement between a guardian and ward within four
years after it is made, relates to settlements between the
parties themselves, without the interposition of a court of
ordinary, and not to a discharge of that court, upon final
settlement and after due citation and publication of no-
tice. Poullain v. Poullain, 72 Ga. 412.
Receipt Before Termination of Guardianship. — A receipt
by a ward, acquitting the guardian in full of all claims
against him, is not valid if signed before the termination
jf the guardianship. This is so even though the ward at
the time be of sound mind. Griffin v. Collins, 122 Ga. 102,
49 S. E. 827.
Suit on Guardian's Bond. — The period of limitation with-
in which suit may be brought on a guardian's bond is
twenty years (§ 4359), and this is not affected by this sec-
tion. Griffin v. Collins, 122 Ga. 102, 49 S. E. 827.
Effect of Fraud. — An exception to the running of a stat-
ute of limitations is, that if the defendant be guilty of fraud
by which the plaintiff has been debarred or deterred from
[lis action, the period of limitation shall begin with the dis-
:overy of the fraud. (§ 4380). But before the plaintiff can
fix a new point for the running of the statute on the
ground of concealed fraud, she must exercise reasonable
diligence to detect the fraud. Bennett v. Bird, 139 Ga. 25,
27, 76 S. E. 568, citing Marler v. Simmons, 81 Ga. 611, 613,
I S. E- 190.
This section and § 4380 are to be construed in pari ma-
teria; the former does not refer to or embrace a fraudulent
settlement; the latter does. Stidham v. Sims, 74 Ga. 187.
Same — Knowledge.— If the settlement was fraudulent, the
fraud must have been known to the infants, and they must
have acquiesced for the period of the statutory bar. Binion
v. Miller, 27 Ga. 73.
Effect Upon Sureties.— A receipt signed by a ward ac-
quitting her guardian of all claims against him does not
"increase the risk" of the sureties on the guardian's bond,
so as to release them from liability. Griffin v. Collins, 122
Ga. 102, 49 S. E. 827.
§ 3085. (§ 2566.) Resignation of guardian.—
Any guardian who, from age, infirmity, removal
from the county, or for any other cause, desires
to resign his trust as such may apply to the ordi-
nary having jurisdiction of the trust, setting forth
the reasons therefor, and also the name of some
suitable person willing to accept the trust; where-
upon the ordinary shall cite such person, and also
the nearest of kin of such ward, to appear at the
next term of said court, and if the ordinary shall
be satisfied that such change of guardians will not
be detrimental to the interest of the ward, and no
good cause is shown against it, he shall grant the
prayer of the applicant, discharging him from his
trust on the following condition, viz: that he shall
[7
forthwith deliver all property and pay all money
held by him as such guardian, upon a fair settle-
ment of his accounts, to his successor; and upon
the filing of the evidence of such settlement, and
the receipt in full of his successor, the guardian
shall be discharged from his said trust. The ward
shall have the privileges, within five years after
he comes of age, to reopen such settlement and
call for an account. Acts 1850, Cobb, 339; Acts,
1853-4, p. 36; 1857, pp. 60, 61.
As to liability of sureties, see § 3979. As to resignation
of administrator, see § 4095.
Suitable Person Willing to Accept as Prerequisitee. — Be-
fore a guardian or administrator is permitted to resign he
must present a fit and suitable person to the ordinary as
his successor who is willing to accept. Bryce v. Wynn,
50 Ga. 332, 334; King v. Hughes, 52 Ga. 600. See also Sel-
man v. Selman, 6 Ga. 432.
Accounting. — When one petitioned to be permitted to re-
sign as the guardian of a lunatic, and an order be put upon
the minutes, that the petition be granted, and on the same
day another guardian was appointed, who gave a bond and
was duly qualified: It was held, that the granting of the
order permitting the resignation, is no judgment that a
full settlement and accounting had been had. King v.
Hughes, 52 Ga. 600.
Debts Due Guardian from Successor. — A guardian can
not discharge his trust by turning over to his successor
debts due himself individually from that successor. Such
is the rule, though the successor be solvent at the time, if,
owing to his subsequent insolvency, the ward is injured bY
the settlement. Maynard v. Cleveland, 76 Ga. 52, 62, 63;
Manning v. Manning, 61 Ga. 138.
Evidence. — In charges of fraud and defense thereof, much
latitude is allowed in introducing evidence; therefore,
where a guardian was charged with fraud in procuring
another to take his place, the fact that he acted openly and
with full knowledge of the family, including the mother of
the minor wards, may go to the jury, though such acts be
in strictness res inter alois acta. Manning v. Manning, 61
Ga. 138.
§ 3086. (§ 2567.) Letters of dismission. — Letters
of dis-mission may be granted by the ordinary to
any guardian, upon his compliance wjth the fol-
lowing provisions:
1. An application in writing, setting forth his
full discharge of the duties of his trust.
2. An examination of his accounts and vouchers
by the ordinary, to verify the truth of the petition.
3. The publication of such application once a
week for four weeks in the public gazette where
the legal notices of the ordinary's office are usu-
ally published.
4. The examination of any objections filed, and
the proof to the ordinary that the ward is of age.
Act 1826, Cobb, 324; Act 1850, Cobb, 340.
See 6 Cum. Dig. 753. As to dismissal for misconduct,
see § 3051.
In General. — Letters of dismission granted to a guardian
under the provisions of this section, like other judgments of
courts of competent jurisdiction, are a bar as to matters
cured by them, unless set aside for fraud in their procure-
ment or for other sufficient cause. Poullain v. Poullain, 72
Ga. 412, 419, and 76 Ga. 420; Mobley v. Mobley, 9 Ga. 247.
Paragraph 2. — Where upon the examination of the guard-
ian's report the evidence tended to show a surcharge upon
the final account rendered by the guardian, the law pre-
sumes that one palpable item casts suspicion upon the en-
tire account. Poullain v. Poullain, 76 Ga. 420.
Paragraph 3. — Under this section publication for four
weeks of notice of the application of a guardian for letters
of dismission is necessary before the guardian can obtain a
valid discharge. Consequently, where a discharge was
granted without compliance with this requirement of the
law, it was net a bar to a suit on the guardian's bond.
Griffin v. Collins, 122 Ga. 102, 49 S. E. 827.
§ 3087. (§ 2568.) Disposition of money, etc., in
hand. — If it shall appear that such guardian has
in his hands any money, property, or effects of
93 ]
§ 3088
GUARDIANS OF LUNATICS, IDIOTS, ETC.
§ 3092
his ward, the ordinary may cause the same, if
money, to be deposited in some solvent bank, and
if other property, to be delivered to some proper
person to be appointed by the ordinary, under
such restrictions as he may deem best for the
preservation of the property, and then grant the
letters dismissory; or the ordinary may, if he
sees proper, pass an order requiring the guardian
to retain the funds in his own hands at an inter-
est not exceeding four per cent, per annum, his
sureties being still responsible therefor. Act
1826, Cobb, 324; Act 1840, Cobb, 332.
While a guardian may have the right to hold funds ol
the ward, uninvested, for the purpose of paying off a judg-
ment as to which there is pending litigation, yet where the
guardian does not do this but mingles such funds with his
own, he is liable for the interest thereon, even though he
individually has at all times with banks, enough money to
settle fully with his ward, none of such money being de-
posited by him as guardian. Jones v. Nolan, 120 Ga. 588,
48 S. E. 166.
§ 3088, (§ 2569.) Ward dying, guardian shall
act as administrator. — When a ward shall die in-
testate, pending his minority, the guardian shall
proceed to distribute his estate in the same manner
as if he had been appointed administrator upon
such state, and the sureties on his 'bond shall be
responsible for his faithful administration and dis-
tribution of such estate. Acts 1858, p. 57.
When Section Applicable. — This section vests the adminis-
tration of the estates of wards in their guardians, where the
former died pending the relationship of guardian and ward,
and not after it had been terminated by the ward's be-
coming of age. Morgan v. Woods, 69 Ga. 599.
Guardian Must Be Made Party. — Where upon the death
of the ward the ordinary brings suit against the adminis-
trator of the heir of the ward for failing to pay over a
legacy the guardian of such deceased party must be made
a party. Beavers v. Brewster, 62 Ga. 575.
Garnishment. — Under § 5304, an administrator, is in cer-
tain cases therein provided for, subject to garnishment;
but the provisions of this section being in derogation of
the jurisdiction of the court of ordinary, the garnishment
proceedings must be in strict compliance with the terms of
the exceptions therein provided. National Lumber Co. v.
Turner, 2 Ga. App. 750, 59 S. E. 15.
ARTICLE 2.
Guardians of Lunatics, Idiots, and Persons non
Compos Mentis.
§ 3089. (§ 2570.) For whom guardians may be
appointed. — -The ordinaries of the several coun-
ties of this State may appoint guardians for the
following persons, viz: Idiots, lunatics, and in-
sane persons, and deaf and dumb persons when
incapable of managing their estates, habitual
drunkards, and persons imbecile from old age or
other cause, and incapable of managing their es-
tates. Act 1818, Cobb, 342; Acts 1840, p. 345.
Cross References.— See § 2169. For full treatment of
guardians for insane persons, see generally, 7 Cum. Dig.
402, 7 Enc. Dig. 533. As to creation of trust estates for
persons non compos mentis, see § 3729.
Ordinaries Have Exclusive Jurisdiction. — Only the ordi-
naries of the several counties of this state have power to
appoint for insane persons. Meadors v. Walden, 28 Ga.
App. 409, 111 S. E. 227.
Blindness. — There is no provision of law in this state for
the appointment of a guardian for a person sui juris solely
on the ground of blindness and limited education. Griffin
v. Collins, 122 Ga. 102, 106, 49 S. E. 827.
Non-Resident Lunatics. — Courts of ordinary in this state
have no jurisdiction to appoint guardians for lunatics re-
siding in and who have been committed to the lunatic asy-
lum of another state. Beall v. Stokes, 95 Ga. 357, 22 S. E-
637.
But the courts of ordinary of this State have jurisdiction
to appoint guardians for the lands of lunatics who reside
beyond the limits of this State, where property is located
in the territorial limits of the State in which such courts
act. Coker v. Gay, 154 Ga. 337, 114 S. E. 217.
Petition May Be Amended. — A petition for the appoint-
ment of a guardian under this section which alleges that
a certain person "is aged and infirm mentally and physic-
ally, and is subject to have a guardian appointed on ac-
count of mental incapacity," is amendable by adding, af-
ter the words "aged and infirm mentally," that the said
person is "imbicile from old age and incapable of managing
her estate." Otwell v. Haskins, 25 Ga. App. 219, 102 S.
E. 839.
§ 3090. (§ 2571.) Oath and bond, powers and
duties. — Guardians so appointed shall take the
same oath and give a like bond with guardians of
minors, and their powers, duties, and liabilities
shall be the same, and be exercised under the
same rules and regulations.
As to bond of guardians, see § 3047.
Power to Sue. — The guardian of a lunatic may sue in his
own name as guardian, to recover possession of personal
property belonging to his ward, and which has been con-
verted since his appointment. Field v. Lucas, 21 Ga. 447.
Right to Possession of Property. — The guardian of the
person and property of a lunatic is entitled to retain pos-
session and control of his ward's effects so long as he con-
tinues guardian; and to deprive him of such possession and
control before the ward is restored to sanity, it is nec-
essary that his letters be revoked and another guardian
appointed. Bonner v. Evans, 89 Ga. 656, 15 S. E. 906.
Sales for Reinvestment. — Service of the petition in cases
of application for an order to sell for reinvestment by the
guardian of a lunatic must be made upon the ward per-
sonally, when the latter is over the age of fourteen years,
as in cases of application to sell for reinvestment by guard-
ians of minors. Ocmulgee River Lumber Co. v. Appleby,
136 Ga. 26, 70 S. E. 346. See §§ 3064, 3065 and notes thereto.
Proceeding by Next Friend for Waste. — If a next friend
suing in behalf of a lunatic can maintain an action for
waste committed by the guardian, or recover money in his
hands, it can be done only in connection with a proceed-
ing to remove the guardian and revoke his letters. A re-
covery for so much money, without any disposition of the
case in so far as relates to removal or revocation, is con-
trary to law. Bonner v. Evans, 89 Ga. 656, 15 S. E- 906.
Title to Lunatic's Property. — See Scott v. Winningham,
79 Ga. 492, 494, 4 S. E. 390.
§ 3091. (§ 2572.) Wife may be guardian.— The
wife shall, in all cases, be entitled to the prefer-
ence in the appointment as guardian, and her
bond and all acts as guardian shall be held and
construed as if she were a feme sole. Acts 1818,
Cobb, 342.
See 7 Cum. Dig. 533.
§ 3092. (§ 2573.) Examination of capacity to
manage his estate. — Upon the petition of any
person, on oath, setting forth that another is
liable to have a guardian appointed (or is sub-
ject to be committed to the Georgia State Sani-
tarium), the ordinary, upon proof that ten days'
notice of such application has been given to the
three nearest adult relatives of such person, or
that there is no such relative within the State, or
where such notice is waived in writing by such
relative, and affidavit is made by any one of such
relatives, or other person, that such person is
violently insane and is likely to do himself bod- i
ily injury, and where the truth of such affidavit j
has been verified in writing by a practicing phy-
sician appointed by the ordinary to examine such
person, shall issue a commission directed to three
reputable persons, two of whom shall be prac-
ticing medical physicians in good standing^ said
physicians to be residents of the county, if that
number reside therein, and the county attorney
or solicitor of any city court located in said
county, and if no county attorney or solicitor of
[ 794 ]
§ 3092
GUARDIANS OF LUNATICS, IDIOTS, ETC.
§ 3094
said city court, the solicitor-general of the circuit
or some attorney of the county appointed by
him, requiring them to examine by inspecting the
person for whom guardianship or commitment
to the sanitarium is sought, and to hear and ex-
amine witnesses on oath, if necessary, as to his
condition and capacity to manage his estate, and
to make return of such examination and, inquiry
to the said ordinary, specifying in such return un-
der which such classes they find said person to
come. Such commission shall be sworn by any
officer of this State authorized by the laws of this
State to administer an oath, well and truly to
execute such commission to the ibest of their skill
and ability, which oath shall be returned with
their verdict. No guardian shall be appointed
for the estate of such person, nor shall such per-
sons be committed to the sanitarium without the
unanimous verdict of such commission. Act,
L834, Cobb, 343; Acts 1838, Cobb, 345; Acts
L855-6, p. 151; 1889, p. 70; 1897, p. 109; 1901, p.
58; 1915, p. 20; 1918, p. 162.
Editor's Note. — This section has been twice amended
since its appearance in the code of 1910, once expressly
3y the acts of 1915, p. 20, and later by implication by the
icts of 1918, p. 162.
The act of 1915 made one change only, namely, the in-
sertion following the words "or that there is no such rel-
itive within the State," which permits the relatives to
vaive notice on proper affidavit.
The act of 1918, made other important changes in the sec-
:ion, which should be noted. Formerly the commission
ssued to eighteen discreet and proper persons, rather than
:o three reputable persons as it now does. One of these
^instead of two) was required to be a physician, the quali-
ication by the words "practicing" and "medical" was also
idded. The provision making the county solicitor, the
iolicitor general, or some attorney appointed by him, a
nember of the commission was added by the same act. It
nay be said that the most radical effect of the act was the
ibolition of the former provision for a jury trial of six per-
sons (or twelve if demanded by the party being tried).
The act of 1918 and § 3101 provifle for different classes of
nsane persons who shall be brought before a commission
»r the ordinary, as the case may be, for investigation, and
his act is not in conflict with, and does not repeal, that
lortion ot § 3101, which provides that where any person
hall make oath that an insane person, for public safety or
ither good and sufficient reasons, should not be longer left
.t large, the ordinary shall issue a warrant as in criminal
ases for the arrest of such insane person to be brought
lefore him on a day specified, etc. (See Dickson v. Hicks,
60 Ga. 487, 128 S. E. 770.)
In the annotations which follow only decisions which are
till in force will be found — obsolete holdings have been
iiscarded.
Constitutionality of section raised but not decided. Smith
| Garrison, 155 Ga. 260, 116 S. E. 599.
Section Strifctly Construed — Inspection Mandatory. — This
ection is to be strictly construed, and the provision that
he person for whom it is sought to have a guardian ap-
pointed shall be "examined by inspection" by the commis-
ioners is mandatory, and requires formal examination by
he commissioners in a body. Singer v. Middleton, 135 Ga.
25, 70 S. E. 662; Morton v. Sims, 64 Ga. 298.
Where the uncontradicted evidence showed failure to com-
ly with the essential requirements of this section, it was
iot error to direct a verdict for the plaintiff in an action
o set the appointment aside. Singer v. Middleton, 135 Ga.
25, 70 S. E. 662.
Section Not Applicable to Persons Accused of Crime. — It
/as not lawful for the ordinary of the county, upon peti-
ion of the mother of a prisoner to proceed under this sec-
ion to appoint a commission to examine into the question
f sanity and make a return to him. McGriff v. State, 135
ia. 259. 69 S. E. 115. See also Baughn v. Wiley, 98 Ga. 364,
5 S. E. 444, and 7 Cum. Dig. 397.
Jurisdiction of Ordinary. — The ordinary, acting under this
ection, exercises a special and limited jurisdiction. The
roceedings should show on their face such facts, especially
ouching the giving of notice, as will authorize the judg-
lent appointing a guardian. Morton v. Sims, 64 Ga. 298.
Object of Notice.— The object of the notice is that there
may be due warning to make objection for legal cause to
the commission or any of the commissioners, as well as to
prepare for adducing evidence on the main question. Mor-
ton v. Sims, 64 Ga. 298.
The three relations notified are not parties in their own
behalf but are notified for the benefit of the person to be
considered and given an opportunity to be heard in his be-
half. They are not summoned by process; no judgment can
be rendered against them merely because of such notice;
and there is no provision for taxing costs against thein.
Slaughter v. Heath, 127 Ga. 747, 758, 57 S. E. 69. As to
taxing costs against relatives, see notes of this case, un-
der § 3102.
Notice Where Nearest Relatives Bring Proceeding. —
If the nearest adult relatives of the alleged imbecile are
themselves the petitioners for the appointment of a guard-
ian, the ten days' notice provided for in this section, should
be given to three of the next nearest. Morton v. Sims, 64
Ga. 298.
Effect of Appearance by Attorney on Lack of Notice. —
A commission issued without the requisite notice, is not
aided by the presence of the imbecile and his representa-
tion by counsel, even where the counsel gives his consent
to the judgment appointing the guardian, it appearing that
the commission was executed on the next day after it was
issued, and that the judgment followed immediately. Mor-
ton v. Sims, 64 Ga. 298.
Effect of Failure to Give Notice. — A judgment appoint-
ing a guardian for a person alleged to be insane is void
where the record shows that the proceedings were begun
and concluded in one day, and that there was an absence
of the statutory notice to the relatives, or of like notice to
a guardian ad litem if there were no such relatives in this
state. Allen v. Barnwell, 120 Ga. 537, 48 S. E. 176. Or,
as pointed out in the editor's note above, notice is waived.
Necessity of Recording Proceedings. — The certificate of
the ordinary to the exemplification of the proceedings on a
commission of lunacy under this section, is not inadmissible
because the proceeding was not recorded, or because no
judgment was entered on the verdict which found that the
person proceeded against was not a lunatic. Verdery v.
Savannah, etc., R. Co., 82 Ga. 675, 9 S. E. 1133.
Pending an appeal from the judgment of the ordinary,
entered upon the return of a committee appointed under
the provisions of this section to inquire whether a person
alleged to be of unsound mind is a fit subject for commit-
ment to the State Sanitarium, such person can not legally
be confined in that institution unless a guardian for him
has been duly appointed or his mental condition becomes
such as to justify recourse to the summary proceeding au-
thorized by § 2581. Reagan v. Powell, 125 Ga. 89, 54 S. E.
580. See § 3094.
Pending such appeal, however, the person adjudged in-
sane by the ordinary may be held in jail under proceed-
ings instituted pursuant to § 3101. Dickson v. Hicks, 160
Ga. 487, 128 S. E. 770.
Inquisition as Evidence. — An inquisition of lunacy and
the appointment of a guardian consequent thereon, is prima
facie evidence only, and not conclusive against third per-
sons who were not parties to it. Slaughter v. Heath, 125
Ga. 747, 756, 57 S. E. 69; Field v. Lucas, 21 Ga. 447. See 7
Cum. Dig. 400.
Appeal. — See § 3094, and notes thereto.
§ 3093. (§ 2574.) Return and appointment.—.
Upon such return finding the person to ibe as al-
leged in the petition, or within either of said
classes, the ordinary shall appoint a guardian for
him or commit him to the Georgia State Sani-
tarium. Act 1834, Cobb, 343; Cobb's Analysis, p.
684.
See § 3092 and notes thereto.
§ 3094. (§ 2575.) Appeal. — The applicants for
a commission, or the person for whom the guard-
ianship is sought, or any friend or relative for
him, dissatisfied with the return of the committee,
may, upon paying all costs, and. giving bond and
security for all future costs and damages, within
four days after the report has been acted on by
the ordinary, enter an appeal to the superior
court of the county, where the issue shall be sub-
mitted to a special jury, selected as in other
cases; but the guardian appointed by the ordinary
[795]
§ 3095
GUARDIANS OF LUNATICS, IDIOTS, ETC.
§ 3102
shall act as such pending the litigation. Act
1834, Cobb, 343.
Prerequisites. — Under this section the payment of costs
and giving bond and security for all future costs and dam-
ages is a prerequisite to entering an appeal to the superior
court. Forester v. Camp, 145 Ga. 48, 88 S. F. 575; Raffaelli
v. Raffaelli, 25 Ga. App. 611, 103 S. F. 860.
Appeals in Forma Pauperis.— This section is not modified
by § 5010, so as to allow an appeal to the superior court
without paying costs and giving bond by one who has been
declared a lunatic, and who has made a pauper affidavit
that owing to poverty he is unable to pay the cost or give
security as required by law. Forester v. Camp, 145 Ga.
48, 88 S. F- 575; Raffaelli v. Raffaelli, 25 Ga. App. 611, 103
S. F. 860.
Status of Lunatic Pending Appeals. — Pending appeal, the
person adjudged insane may be held in jail under proceed-
ings instituted pursuant to § 3101, but the appeal is not
invalidated thereby. Dickson v. Hicks, 160 Ga. 487, 128 S.
F. 770.
Vacating Judgment. — If it be shown that the person has
not had his day in court, in a proceeding under § 3092, the
judgment may be vacated, notwithstanding its recitals to
the contrary. Singer v. Middleton, 135 Ga. 825, 70 S. F-
662. See 7 Cum. Dig. 403.
§ 3095. (§ 2576.) Second application. — When
one application for guardianship under this article
has failed upon the merits, the ordinary shall not
issue a second commission, unless the petition is
verified by at least three respectable disinterested
neighbors, in addition to the oath of the appli-
cant.
One who, after suing out a commission of lunacy, volun-
tarily dismisses the proceeding is not compelled to pay the
costs which have accrued therein, as a condition precedent
to instituting a second proceeding of the same character,
relative to the same person and involving the same ques-
tions which were presented by the first. Hinton v. Brewer,
129 Ga. 232, 58 S. F. 708.
§ 3096. (§ 2577.) Witnesses. — The ordinary
may issue subpcenas for witnesses to appear be-
fore the commission thus appointed; and, on their
failure to appear, the ordinary may take the same
steps to compel attendance as if the proceeding
were before his court.
§ 3097. (§ 2578.) Proceedings to end a commis-
sion. — Any person for whom a guardian is ap-
pointed under this Article, upon restoration to
sanity and capacity, may personally or by at-
torney petition the ordinary, setting forth the
fact and praying the revocation of such guardian-
ship. Upon such petition the ordinary may ex-
amine into the truth thereof, and if satisfied of
its truth, and the guardian consenting thereto,
the ordinary shall grant the prayer and order the
guardian forthwith to deliver over to such per-
son his property, money, and effects. Acts
1855-6, p. 149.
§ 3098. (§ 2579.) Issue, how made and tried.—
If the ordinary is not satisfied as to the truth of
the petition, or the guardian or any relative of
the applicant objects to the revocation of the let-
ters, the ordinary shall require the sheriff to sum-
mon eighteen men, competent to serve as jurors,
to appear before said ordinary on a day specified,
any twelve of whom, being duly sworn, shall con-
stitute a jury before whom shall be tried the is-
sue as to the truth of the application; upon a
verdict affirming its truth, the ordinary shall
grant the prayer and order above specified.
Acts 1855-6, p. 150.
§ 3099. (§ 2580.) Other provisions same as gen-
eral guardians. — All the provisions made in this
Code as to the settlements of guardians of min-
ors, their resignation, letters of dismission, and
distribution of the estates of deceased wards,
shall apply to guardians appointed under this
Article.
See §§ 3076 to 3088.
§ 3100. (§ 2581.) Confining ward. — Guardians
of insane persons are authorized to confine them,
or place them in the Georgia State Sanitarium, if
such a course is necessary either for their own
protection or the safety of others; and a guard-
ian willfully failing to take such precaution with
his ward shall be responsible for injuries inflicted
on others by such ward.
§ 3101. (§ 2582.) Proceedings by third persons.
— When there is no guardian for an insane per-
son, or the guardian, on notice, refuses or fails to
confine his ward, and any person shall make oath
that such insane person, for public safety or
other good and sufficient reason, should not
longer be left at large, the ordinary, or in his ab-
sence from the county, or when he is unable to
act for any cause, the judge of the superior court
before whom said oath is made, shall .issue a
warrant as in criminal cases for the arrest of such
insane person, to bring him before him on a day
specified; and said ordinary, or in his absence
from the county, or when he is unable to act for
any cause, the judge of the superior court, on an
investigation of the facts, may commit such in-
sane person to the Georgia State Sanitarium,
and, if necessary, cause him to be temporarily
committed to jail until he can be removed to the
Sanitarium, and the expense of such confinement
and the proceedings shall be paid out of the estate
of such insane person, if any, and if none, out of
the county funds. The fees of the ordinaries of
the several counties of this State, for making out
commissions of lunacy and all other services con
nected therewith, shall ibe five dollars and no
more; and the fees of sheriffs and bailiffs, for
summoning juries and other services connected
with cases of lunacy, shall be three dollars and
no more. Act 1838, Cobb, 344; Acts 1866, p. 22;
1887-9, p. 77; 1894, p. 43.
The act of 1918, amending § 3092 by implication, is not in
conflict with and does not repeal this section. Dickson v.
Hicks, 160 Ga. 487, 128 S. F. 770.
Pending an appeal from a judgment committing one to a
sanatorium (§§ 3092 et seq.), the provisions of this section
may be enforced in the interest of public safety, but such
appeal is not invalidated thereby. Dickson v. Hicks, 160
Ga. 487, 128 S. E. 770.
The fixed amount of costs given by this section to the
ordinaries of the several counties of this state, for making
out commissions of lunacy, must be held to include their
compensation for all services necessary or incidental there-
to, including the swearing of the commissioners, when such
act is performed by the ordinary. McAlpin v. Chatham
County, 26 Ga. App. 695, 107 S. F- 74.
A county is not liable in damages for maltreatment of
a person committed to jail by the ordinary, preparatory to
being sent to the lunatic asylum, under this section, but
such person, or his legal representative or guardian, if he
was found to be a lunatic and still so remains, must sue
personally the jailer and sheriff and those who maltreated
him while in jail. Wilson v. Fannin, 74 Ga. 818. See also
Hammond v. Richmond, 72 Ga. 188.
§ 3102. (§ 2583.) Expenses of proceedings, how
paid. — ■ It shall be the duty of each ordinary of
this State to draw his warrant upon the treasurer
of his county for such sum or sums as shall be
actually necessary or requisite to defray the ex-
penses of trying every commission of lunac)',
[796]
§ 3102(1)
GUARDIANS OF LUNATICS, IDIOTS, ETC.
§ 3106
provided the sum to be paid in each case shall not
exceed $10.00, and actual expenses to each of said
reputable physicians, the reputable person not a
physician shall not receive more than $5.00 in
in each case, and for carrying on or conveying
such insane person from such county to the sani-
tarium when such insane person shall be law-
fully committed to the sanitarium. When fe-
males are committed to the sanitarium, they shall
be accompanied thereto by a relative, female
nurse or female attendant, at the expense of the
county; provided that no money shall be drawn
from the county treasury for the purposes herein
set forth when the estate of such insane person
is sufficient to defray such expenses. Acts
1880-1, p. 182; 1918, pp. 162, 163.
Editor's Note. — This section was impliedly amended u>
the acts of 1918, p. 160. The amendment made two addi
tions to the section, which were (1) the proviso limiting the
amount paid to the physicians to $10.00 and actual expenses
and the amount paid to the reputable person to $5.00, and
(2) the provision at the beginning of the last sentence re-
lating to by whom females are- to be accompanied en route
to the sanitarium.
Taxing Costs Against Relatives. — There is no provision
of law for taxing cost against the three nearest relatives
required to be notified by § 3092 of a proceeding under that
section. Slaughter v. Heath, 127 Ga. 747, 758, 57 S. E. 69.
Authority of Sheriff. — The sheriff of a county has no
power to contract a county debt or engage the credit of the
county for a conveyance, such as a hack, team and driver,
for use by him in executing a warrant issued by the ordi-
nary against a lunatic or insane person. Hutcherson v.
Robinson, 82 Ga. 783, 9 S. E. 722, 723.
§ 3102(1). Sanitarium free, to whom. — Said
sanitarium shall Ibe free to all the resident citi-
zens of this State, who may be lunatics, idiots,
epileptics or demented inebriates, and who are
paupers, and who, when admitted, shall receive
free the same food, raiment and medical and
other attention as shall be provided for the in-
mates generally, and all resident citizens of this
State of the above description whose estate does
no exceed the sum of three thousand dollars or
sufficient to provide for them, may be admitted
upon the payment for such reasonable sum for
board and keep as may be prescribed by the
trustees; provided, however, that no paralytics,
epileptics, imbeciles, idiots, drug or alcoholic ad-
dicts, persons suffering from tubercular, venereal
or other contagious diseases, whether paupers or
not, who are harmless and inoffensive in spirit,
and who, if unconfined, would reasonably involve
no danger to the life or limb to those whom they
would be associated, shall ibe committed or ad-
mitted to said sanitarium, and provided further,
that if the family or friends of any inmate shall
desire to furnish extra or additional food or other
comforts they may be allowed so to do, at their
own expense, under such rules and regulations
as said Trustees may prescribe, and providing
further, that any funds belonging to any inmate
of said sanitarium where there has been no
guardian appointed for such inmate, shall be
turned over to the board of trustees of the State
sanitarium and used toward the board and
clothing and other expense of such inmate, and
in the event any such inmate shall be dis-
charged as being cured, any balance remaining
in the hands of said board of trustees shall be
turned over to such inmate. Acts 1918, pp. 162.
164.
§ 3103. (§ 2584.) Appointed without trial when
[ 797
in Sanitarium. — The ordinaries of the several
counties of this State are authorized to appoint
guardians for idiots, lunatics, and insane persons,
without a trial, as in section 3092, whenever it
shall be made to appear to them that such idiot,
lunatic, or insane person is in the Georgia State
Sanitarium upon commitment thereto, or when it
is shown, by the certificate of the superintendent
of the lunatic asylum in which the party is con-
fined, that such person is hopelessly insane, and
it is necessary for such idiot, lunatic, or insane
person to have a guardian to take charge of his
property. Such Ordinaries are also authorized
to appoint guardians without a trial, as in Sec-
tion 3092 of the Civil Code of Georgia of 1910,
for any person entitled to the benefits of the
Acts of Congress, approved June 7, 1924, and
amendments thereto, known as the "World War
Veterans' Act," where it shall appear from the
certificate of the Regional Manager in charge of
the United States Veterans' Bureau in Georgia,
or of the Medical Officer in charge of any gov-
ernment hospital for mental and nervous di-
seases, that such veteran of the World War has
Ibeen declared by the United States Government
as incompetent to receive the funds to be paid to
him under said Act of Congress, and such certifi-
cate shall be all the proof required as to the in-
capacity of said veteran to receive such funds,
and as to the necessity of a guardianship. Guard-
ians for such veterans shall be subject to the
same provisions of law as guardians of idiots,
lunatics, and insane persons in this State. Acts
1884-5, p. 130; 1925, pp. 270, 271.
§ 3104. (§ 2585.) Rules governing such guard-
ians.— Such guardians shall be appointed under
the same rules and regulations as govern the ap-
pointment of guardians for minor children, and
the ordinary of the county where such idiot, luna-
tic, or insane person lived at the time he was
sent to the Sanitarium shall have jurisdiction of
the appontment of such guardian.
As to rules governing the appointment of guardians for
minors, see §§ 3031-3088. As to salary of ordinary and
sheriff and duty to pay over fees collected to county or
state, for all counties having 200,000 population or more,
see § 6017 (5) ; counties having between 44,000 and 60,000,
and from 70,000 to 150,000 population, see § 6017 (12); coun-
ties of from 60,000 to 70,000 population, see § 6017 (25).
§ 3105. (§ 2586.) Physicians to be on jury.—
Physicians actually engaged in the practice of
their professions shall be liable to serve as jurors
in the examinations of persons for whom guard-
ianship or commitment to the Georgia State
Sanitarium is sought, and nothing in this Code
shall be construed to exempt such physicians
from jury duty in such examination of said per-
sons. Acts 1882-3, p. 99.
See §§ 871 and 3092 and notes thereto.
§ 3106. (§ 2587.) Pay of jurors in lunacy trials.
— Ordinaries, upon the trial of cases of lunacy,
shall draw their warrant upon the county treas-
urer, in favor of each juror serving at such trial,
for one dollar for each day such juror shall serve,
which amount the county treasurer shall pay out
of the funds in his hands levied to pay jurors, or
any other funds not otherwise appropriated. Acts
1887, p. 66.
§ 3107
FOREIGN GUARDIANS
§ 3115
ARTICLE 3.
Foreign Guardians.
See 6 Cum. Dig. 755, 6 Enc. Dig. 894.
§ 3107. (§ 2588.) Foreign guardian may recover
property, etc. — When a minor, idiot, lunatic, or
insane person resides in another State, and by
any reason is entitled to property in the hands
of any executor, administrator, trustee, or guard-
ian within this State, and there is no sufficient
reason why such property should not be trans-
ferred to a guardian appointed under the laws
of such other State, the same may be done in the
following manner:
1. The foreign guardian shall give bond (with
good security) to the proper authority in his own
State, for the faithful execution of such guardian-
ship, in double the amount of the value of the
property in this State, over and above the sum in,
which he may be bound for the guardianship of
property then in that State.
2. He shall produce to the ordinary to whose
court such executor, administrator, trustee, or
guardian is bound to make returns, an exempli-
fication, authenticated as required by the Act of
Congress, showing that he has complied with the
above condition, and having also the certificate
of the proper officer as to the sufficiency of the
security to his bond.
3. He shall give twenty days notice to such exec-
utor, adminstrator, trustee, or guardian, of such
intended application. Act 1837, Cobb, 329; Act
1850, Colbb, 341; Acts 1855-6, p. 146.
Paragraph 1 — New Bond. — If it. appear that the value of
the property is more than half the amount of the bond
given by the foreign guardian in pursuance of this section,
the presiding judge may, in his discretion, allow a new
bond to be given in accordance with the provisions of the
section, giving adverse parties reasonable time in which
to investigate the sufficiency of the bond. Sturtevant v.
Robinson, 133 Ga. 564, 66 S. E. 890.
Paragraph 2 — Exemplification as Evidence of Domicile.
— The exemplification, showing compliance with all the
provisions of this section, furnishes, in the absence of any
evidence to the contrary, sufficient proof of the domicile
of the applicant and his ward within the jurisdiction of
the foreign court from which the exemplification came.
Sturtevant v. Robinson, 133 Ga. 564, 66 S. E. 890.
Paragraph 3 — Sufficiency of Notice. — In Sturtevant v.
Robinson, 133 Ga. 564, 66 S. E. 890, the evidence held suffi-
cient to show notice to resident guardian of application of
foreign guardian for transfer of property.
§ 3108. (§ 2589.) Order of ordinary. — Upon
compliance with these conditions, the ordinary may
order a transfer of all such ward's estate to the
foreign guardian, and may order the sale of any
real estate, if necessary for settlement with such
foreign guardian. If there exists any reason why
such estate, or any portion of it, should not be re-
moved from this State, the ordinary may hear any
one interested in the question, and refuse the order
in his discretion. Act 1837, Cobb, 321; Acts 1851-2,
p. 102.
Where the property which a foreign guardian seeks to
have transferred to him consists of an undivided interest
of his ward in an estate in the hands of a resident adminis-
trator, the court has no power to order such administrator
to sell such undivided interest for the purpose of a settle-
ment with the foreign guardian. Sturtevant v. Robinson,
133 Ga. 564, 66 S. E. 890.
§ 3109. (§ 2590.) Discretion of ordinary. — The
exemplification and certificate produced by the
court may hear evidence as to the fitness and com-
petency of the guardian for his trust, or the suffi-
ciency of his security, or any other matter or thing
going to show the impropriety of granting the or-
der asked for, and in his discretion the ordinary
may refuse such order. Acts 1851-2, p. 102.
§ 3110. (§ 2591.) Receipt. — The receipt of the
foreign guardian under such order shall be a suffi-
cient voucher for the trustee in Georgia.
§ 3111. (§ 2592.) Enforcing order. — The court
may enforce such order in the same manner as
provided in cases of settlements made with guard-
ians, and the foreign guardian, after such order,
may sue for the property of his ward in the posses-
sion of any person, in any court of law or equity in
this State. Act 1837, Cobb, 330.
See §§ 3081, 3082.
§ 3112. (§ 2593.) Removal of guardian and
ward, etc. — If any guardian appointed in this State
shall desire to remove to another State and carry
his ward with him, before removing the person or
property of his ward, he shall, in the proper court
of his intended domicile, first comply with all the
conditions required in the preceding sections of a
foreign guardian, and obtain the order of the ordi-
nary consenting to such removal.
§ 3113. (§ 2594.) Foreign guardian or trustee
may sue. — Any guardian or trustee who resides
out of this State, and who is regularly appointed as
such in the State in which he resides, may institute
his suit in any court in this State to enforce any
right of action or recover any property belonging
to his ward or cestui que trust, or according to said
guardian or trustee as such. Acts 1895, p. 85.
Editor's Note. — By the law of England and of this coun-
try, a guardian appointed by the courts of one state has
no authority over the ward's person or property in another
state, except so far as allowed by the comity of that state,
as expressed through its legislature or its courts; (Hoyt
v. Sprague, 103 U. S. 613, 631, 26 L. Ed. 585), but the
tendency of modern statutes and decisions is to defer to the
law of the domicil, and to support the authority of the
guardian appointed there. This state has granted comity
to suits of foreign guardians from an early period, as will
be seen from the acts of 1837 (Acts 1837, Cobb 329) and acts
of 1850 (Acts 1850, Cobb 341) and again in the acts of 1895
(Acts 1895, p. 85) from which this section was taken. This
authority of the foreign guardian to sue has been recog-
nized by the early decisions to apply as well to actions ex
delicto as to actions ex contractu. (See Averitt v. Pope, 50
Ga. 660).
Suit for Support of Ward. — A guardian residing out of
the jurisdiction in which the property of his ward is situ-
ated, may sustain a bill to have an allowance for past ex-
penses, and a decree, that sums suitable to the circum-
stances of his wards shall, at stated periods, be deposited
in court, at his disposal, for their future maintenance and
education. Ponder v. Foster, 23 Ga. 489.
If a ward attain his majority during the pendency of a
suit by his non-resident guardian, he may be substituted as
party plaintiff in Jieu of his guardian. Sims v. Renwick, 25
Ga. 58.
§ 3114. (§ 2595.) Copy of letters to be filed. —
Pending the action a properly authenticated exem-
plification of the letters of guardianship, or of the
appointment as trustees, shall be filed with the
clerk of the court, to become a part of the record,
provided the cause is pending in a court of record.
If it be a summary process, the exemplification
shall be filed with the papers. Acts 1895, p. 85.
§ 3115. (§ 2596.) Resident parties protected. —
foreign guardian shall not be conclusive, but the ' If any citizen of this State is interested as creditor,
[ 798 ]
3116
MASTER AND SERVANT
§ 3123
eir, or legatee in {he estate of which such guardian
r trustee is the representative, he may, by applica-
on to the proper court, compel such foreign
uardian or trustee to protect his interest according
) equity and good conscience, before removing
jch assets beyond the limits of this State.
§ 3116. (§ 2597.) Foreign guardian or trustee
lay sell. — Any guardian or trustee who resides in
try other State shall be and he is hereby authorized
) sell and convey any property of his ward or
;stui que trust, lying or being in this State, under
le same rules and regulations as are now
rescribed for the sale and conveyance of
:al estate by executors, administrators, guard-
ns, or trustees of this State: Provided, such for-
gn guardian or trustee shall file and have re-
Drded in the ordinary's or other proper office, at
le time of making his application for sale, an
ithenticated exemplification of his letters of
uardianship, or of his appointment as trustee, and
lall also file with the ordinary or other proper
jthority bond with good and sufficient security, in
Duble the value of the property to be sold, for the
.ithful execution of such guardianship, or trustee-
lip, as required by law.
CHAPTER 4.
Master and Servant.
For a comprehensive and exhaustive treatment of mas-
.r and servant, see 8 Cum. Dig. 425, 9 Fnc. Dig. 239. See
so, 2 Cum. Dig. 8, 1 Fnc. Dig. 450.
ARTICLE 1.
Indented Servants and Apprentices.
§ 3117. (§ 2598.) Indenture service. — Any per-
)n of full age may bind himself for a valuable con-
deration to any citizen of this State for a limited
umber of years, not exceeding five; the contract
i apprenticeship shall be in duplicate, and wit*
essed in the same manner as deeds; the original
lall be kept by the master, and the duplicate shall
2 filed and recorded either in the office of the
idge of the county court or in the ordinary's
5fice. Acts 1866, p. 8.
Cross References. — For full treatment of apprenticeship,
anerally, see 2 Cum. Dig. 8, 1 Fnc. Dig. 450. As to man-
sr of attestation of deeds, see § 4202. As to power of
laritable institution to bind out children in its custody,
:e §§ 2848, 2860. As to duty of ordinary in binding out
idigent children, see § 3061.
Editor's Note. — This and the following eleven sections
ere taken from the acts of 1866, p. 6. The original pur-
Dse of this act was evidently designed to make provisions
tr that large class of persons (colored minors) who, by the
isults of the Civil War were thrown upon society, help-
:ss from want of parental protection, want of means of
ipport, inability to earn their daily bread, and from age
ad other causes. It was the imperative duty of the legis-
.ture to make provisions for this portion of our people, to
ive them the full protection of the law, and prevent their
scorning burdensome upon the industry of the country,
.s was said in Smith v. Bell (35 Ga. 236) "the spirit of
lis act is wise, just and humane, and comprehends, alike,
le white and black, without discrimination. It is, more-
ver, clear and perspicuous, and should be enforced in
ood faith." Public functionaries should be vigilant in
reventing anyone under the name of master, from getting
le control of the labor and services of such minor ap-
rentice without affording the minor some opportunity of
taming a useful occupation.
Strictly Construed. — The provisions of this section should
e strictly complied with, and it should so appear on the
face of the proceedings. Ballenger v. McLain, 54 Ga. 159,
160; Adams v. Adams, 36 Ga. 236; Comas v. Reddish, 35
Ga. 236.
§ 3118. (§ 2599.) Minor need not sign. — It shall
not be necessary for the apprentice to sign the in-
denture of apprenticeship. Acts 1865-6, pp. 6-8.
§ 3119. (§ 2600.) Master's duty.— It shall be the
duty of the master to teach the apprentice the busi-
ness of husbandry, house service, or some other
useful trade or occupation, which shall be specified
in the instrument of apprenticeship; shall furnish
him with protection, wholesome food, suitable
clothing, and necessary medicine and medical
attendance; shall teach him habits of industry,
honesty, and morality; shall cause him to be taught
to read English; and shall govern him with
humanity, using only the same degree of force to
compel his obedience as a father may use with his
minor child. Acts 1865-6, pp. 6-8.
§ 3120. (§2601.) Right of master.— The master
shall be entitled to his reasonable labor under his
direction, and shall have a right of action against
any other person who, with notice, shall employ
such servant. If the indented servant shall have
been imported by the master, he shall recover dam-
ages at least equal to double the amount per month
for which such indented person contracted to serve.
As to interference with the relation of employer and em-
ployee, see §§ 3712 to 3715.
Cited in Hadden v. Stone Mountain Granite Corp., 25
Ga. App. 298, 301, 103 S. F. 266.
§ 3121. (§ 2602.) Evidence of indenture. — The
attestation of any consul of the United States shall
be evidence of the execution of the articles of in-
denture of apprenticeship or contract of service of
such imported servant. Acts 1860, p. 11.
§ 3122. (§ 2603.) Rights of servants. — Such
indented person is entitled to maintenance, protec-
tion, and humane treatment; and upon proof to the
court in which the contract was filed and recorded
that he is denied either of them, or the considera-
tion of his indenture, the court shall pass an order
declaring the indenture, revoked and annulled.
Cited in Hadden v. Stone Mountain Granite Corp., 25
Ga. App. 298, 301, 103 S. F. 266.
§ 3123. (§ 2604.) Parents may bind out minor
children. — All minors may, by whichever parent
has the legal control of them, be bound out as ap-
prentices to any respectable person until they at-
tain the age of twenty-one years, or for a shorter
period. Acts 1865-6, p. 6.
See 2 Cum. Dig. 9, 1 Fnc. Dig. 452. As to binding out
indigent orphans, see § 3061.
Application of Section. — This section relates to matter
distinct from that mentioned in § 3021 par. 1 (referring to
the release of parental power by contract). "Voluntary
contract" as used in the latter section does not mean con-
tracts of apprenticeship. Faves v. Fears, 131 Ga. 820, 64
S. E. 269.
Indenture of a female is not void as being in restraint
of her right of marriage. Dent v. Cock, 65 Ga. 401.
By Mother During Absence of Husband. — Where a child
has been apprenticed by the mother without the consent of
the father, during temporary separation, the father may,
on resuming the marital relations, recover such child.
Wigley v. Mobley, 101 Ga. 124, 28 S. F. 640.
Habeas Corpus. — Where a mother is induced by threats
of sending the child out of the state, to sign articles ap-
prenticing the child to a third person, it may be recovered
by the father on a habeas corpus; and especially where the
mother testifies that she did not wish to deprive the father
of its custody. Mitchell v. McFlvin, 45 Ga. 558. And a
[799]
§ 3124
MASTER'S LIABILITY TO SERVANT
§ 3129
contract between the father and a third person, conveying
right of custody to a third party, will not be admissible
where the mother brings habeas corpus against such third
party, after the death of the father. L,andrum v. Landrum,
159 Ga. 324, 125 S. F. 832.
§ 3124. (§ 2605.) Ordinary may bind out in cer-
tain cases. — It shall be the duty of the judge of
the county court, or the ordinary, to bind out in like
manner all minors whose parents are dead,
or whose parents reside out of the county,
the profits of whose estate are insufficient
for their support and maintenance; also, all
minors whose parents, from age, infirmity, or
poverty, are unable to support them: Provided, be-
fore the judge of the county court or ordinary shall
bind out any such minor, such judge or ordinary
shall give fifteen days notice, by a plainly written
citation, calling upon all persons interested, to
show cause why such minor should not be bound
out, and specifying the time and place when he
will pass upon the same; one of which citations
shall be posted on the court-house door of the
county, and the other at some public place in the
militia district in which said minor may then be,
and shall also cause copies of said citation to be
served upon the next of kin of said minor, if any be
found in said county, at least ten days before the
hearing, and if no next of kin are found in the
county, then the citation to be published once a
week, for four weeks, in the paper in which the
legal advertisements are published; and in all such
cases the judge or ordinary shall appoint for such
minor a guardian ad litem before binding him or
her out, which guardian ad litem shall not be the
applicant nor any relation of his. After a full hear-
ing such judge or ordinary may bind out such mi-
nor or minors, if no blood kin of said minor or
minors who are willing and competent to
undertake their support and maintenance appear,
and if no other good cause to the contrary be shown
by such guardian ad litem, or any other person.
Acts 1865-6, pp. 6, 8; 1875, p. 19.
For full treatment of apprentices, generally, see 2 Cum.
Dig. 8, 1 Fnc. Dig. 450. As to protection of children, see
§ 3024.
Vagrancy Law. — Pursuant to the construction placed upon
this section it is doubtful whether the penal law on the
subject of vagrancy was intended to apply to one who is
a minor. Teasley v. State, 109 Ga. 282, 34 S. F. 577.
Jurisdiction. — The ordinary has no power to apprentice a
colored child who resides with and is maintained by its
father, the father being a resident of the county and able
to support the child. Comas v. Reddish, 35 Ga. 236.
The ordinary of the county of the mother's residence has
no authority to apprentice an illegitimate child without the
censent of the mother, unless she be unable to support her
child, or some other legal reason be shown why she should
be deprived of the custody of it. Alfred v. McKay, 36 Ga.
441.
§ 3125. (§ 2606.) Jurisdiction over dispute. —
In all controversies between a master and his ap-
prentice, pending the existence of the relation, the
judge of the county court, or the -ordinary, may
exercise jurisdiction, and on complaint of either
party, and notice to the other, may cause justice to
be done in a summary manner. If the master be in
default, he shall be fined, at the discretion of the
court, not exceeding fifty dollars; and if the ap-
prentice, the court may order such correction as
the circumstances may demand, not extending to
cruelty. Acts 1865-6, p. 6.
The superior court has jurisdiction of an action brought
for the breach of an indenture of apprenticeship executed
under the provisions of §§ 3117 et seq. Tritt v. Bize, 51 Ga.
494.
§ 3126. (§ 2607.) Relation, how dissolved or
changed. — By consent of the parties, the judge of
the county court or the ordinary may dissolve the
relation at any time; and on the death of the master,
the said judge, or ordinary, may either dissolve it
or substitute in place of the deceased his legal rep-
resentative, or some member of his family; in
which event the person substituted, by filing a
written acceptance, shall thenceforth have all the
rights, and be bound for all the duties, of the origi-
nal master. Dissolution by consent, or for the
death of the master, shall be subject to the sound
discretion of the judge of the county court, or of
the ordinary, as also shall be the selection of a
successor to the master as above mentioned; but if
no successor be designated, and his acceptance filed
within three months after the death of the master,
then the relation shall no longer exist. The judge
of the county court, or the ordinary, may also dis-
solve the relation, at the instance of the master, for
gross misconduct in the apprentice; or at the in-
stance of the apprentice, or any friend of his, for
cruelty in the master, or for failure to furnish food,
clothing, medicine, or medical attendance, or for
jeopardy of the good morals of the apprentice, by
reason of the master's depraved conduct. Acts
.1865-6, pp. 6-8.
Cited in Hadden v. Stone Mountain Granite Corp., 25
Ga. App. 298, 301, 103 S. F. 266.
§ 3127. (§ 2608.) Allowance at the expiration of
service. — To the master shall belong the proceeds
of the apprentice's labor; but at the expiration of
his term of service a faithful apprentice shall be
entitled to a small allowance from the master with
which to begin life; the amount to be left, in the
first instance, to the master's generosity. If the
master offer less than one hundred dollars, the ap-
prentice may decline it, and cite the master before
the judge of the county court, or the ordinary; and
after hearing both parties and their witnesses, if
any, the said judge, or the ordinary, shall fix the
sum to be paid, increasing or diminishing the
amount offered, according to the merits of the ap-
prentice, the means of the master, and the length
and fidelity of the service. Acts 1865-6, pp. 6-8.
§ 3128. (§ 2609.) Right of action against person
employing apprentice. — The master shall have a
right of action against any person employing his
apprentice with notice of the fact, and the damages
recovered shall not be less than twenty-five dollars.
Acts 1865-6, pp. 6-8.
Cited in Hadden v. Stone Mountain Granite Corp., 25 Ga-
App. 298, 301, 103 S. F. 266.
ARTICLE 2.
Master's Liability to Servant.
§ 3129. (§ 2610.) Injuries to coemployees. — ?
Except in case of railroad companies, the master is
not liable to one servant for injuries arising from
the negligence or misconduct of other servants
about the same business.
Cross References. — For a full, comprehensive and exhaus-
tive treatment of master and servant, see 8 Cum. Dig. 425,
9 Fnc. Dig. 239. For a provision similar to this section
[ 800]
3129
MASTER'S LIABILITY TO SERVANT
§ 3129
;lating to agents, see § 3602. As to liability of railroad
Htipanies to employees, see §§ 2751, 2782.
Editor's Note. — This section is a codification of the orig-
lal commort law rule of the fellow- servant doctrine, with
le exception of railroad companies. The common law
ale may be stated as follows: "A master who has ex-
rcised the requisite degree of care in performing the per-
jnal duties owed by him to his employees is not answer-
ble to one of them for an injury which is the result of
egligence of others in the same service." (See Shields v.
'onge, 15 Ga. 349; Baxley v. Satilla Mfg. Co., 114 Ga.
JO, 40 S. E. 730). One reason which has been assigned
>r the fellow-servant rule is that of supposed public pol-
:y, it being assumed that the want of recourse against
le master not only makes the servant more careful for
imself, but induces him to stimulate others to like dili-
ence, and thus promote the safety of all engaged in the
ervice (Cooper v. Mullins, 30 Ga. 146, 150). Another, and
l the opinion of the editor, the true rule is that the
laster escapes liability, not on the theory that to corn-
el the servants to look to each other for protection, nor
n the ground that they should not be allowed recourse on
he master because they are in better position than the
laster to guard against the result of each others negli-
ence; but for the reason that the whole matter falls
/ithin the domain of implied contract. It would seem that
fter the master has performed the duty of selecting with
ue care a sufficient number of servants properly to carry on
he work, there is an implied contract on the part of the
ervant by which he assumes the ordinary risk incident to
lis employment, among such assumed risks is the danger
f being injured by the negligence of a fellow- servant prop-
rly selected by the master to engage in the same com-
non employment. The risk assumed by the servant of
legligent acts of his fellow-servant are perils incident to
he service, and which can be as distinctly foreseen and
•rovided for in the rate of compensation as any other. The
;earcher will find a full and comprehensive treatment of
he fellow- servant rule in 6 Cum. Dig. 157, 6 Enc. Dig. 169.
?or cases construing the liability of railroad companies for
njuries to employees, see § 2751, and as to injuries by co-
•mployees, see § 2782.
The defenses of the assumption of risks and the fellow
servant doctrine are not available to the employer who
ails to elect to operate under the Workmen's Compensation
\ct. For a full treatment of this subject reference should
oe made to the editor's note under § 3154 (1).
At Common Law. — Under the common law, one servant
:an not recover damages from the master for personal in-
jury caused by the negligence of a fellow servant. Lay v.
Nashville, etc., R. Co., 131 Ga. 345, 62 S. E- 189; Whitfield
I Louisville, etc., R. Co., 7 Ga. App. 268, 270, 66 S. E. 973;
Lamb v. Floyd, 148 Ga. 357, 361, 96 S. E- 877. For other
:ases, see 6 Cum. Dig. 157.
Definition of Fellow Servants. — Where employees are in
the service and subject to the general control and direction
of a common master and the labor of each' conduces to the
accomplishment of the same general purpose for which they
are employed, they are fellow- servants within the meaning
of the rule stated in this section, although they may be
employed in different departments of duty, and so far re-
moved from each other as that one can in no degree con-
trol or influence the conduct of the other. Brush Flectric
Light, etc., Co. v. Wells, 110 Ga. 192, 35 S. E- 365; Colley
v. Southern Cotton Oil Co., 120 Ga. 258, 47 S. F. 932; Ce-
dertown Cotton Co. v. Hanson, 118 Ga. 176, 44 S. F- 992.
See 6 Fnc. Dig. 174.
Employees of a common master, engaged in labor for the
furtherance of the general purpose of the business in which
they contract to serve, are fellow-servants within the pur-
view of this section. Georgia Coal, etc., Co. v. Bradford,
131 Ga. 289, 62 S. F. 193; Foundation Co. v. ' Gobay, 24
Ga. App. 494, 101 S. E. 392; Georgia Coal, etc., Co. v. Brad-
ford, 131 Ga. 289, 62 S. E. 193. For other cases, see 6 Fnc.
Dig. 174.
Two persons subject to control and direction by the same
general master in the same common object are fellow-
servants, and if one is injured by the negligence of the
other, the master, save when by statute otherwise provided,
is not liable, although the negligent servant has the right
to direct the work of the other. Hamby v. Union Paper-
Mills Co., 110 Ga. 1, 35 S. E. 297.
Same — Servants Engaged in Different Departments. —
Where two employees are in the same service and subject
to the general control and direction of a common master,
though each receives his order from a different superior, and
the labor of each is exerted for the furtherance of the gen-
eral purpose of the business in which they are employed,
they are fellow servants, notwithstanding they may be
employed in different departments of duty, and so far re-
moved from each other as that one in no degree controls or
Ga. Code — 26 [ SOI ]
influences the conduct of the other. Winn v. Fulton Bag,
etc., Mills, 15 Ga. App. 33, 82 S. E- 586; Falla v. Pine
Mountain Granite Co., 22 Ga. App. 651, 9/ S. E. 114; Odum
v. Edgar Bros. Co., 25 Ga. App. 144, 103 S. E. 183. For
other cases, see 6 Enc. Dig. lt>3.
Same — Same — Editor's Note. — In the opinion of the ed-
itor the limitation of the fellow servant rule, sometimes
called "the different department rule," no longer exists in
Georgia. In Brush Electric Light, etc., Co. v. Weils, 110
Ga. 192, 35 S. E. 365, and Odum v. Edgar Bros. Co., 25
Ga. App. 144, 103 S. E. 183, the doctrine was clearly re-
jected. For other cases in which this doctrine has in ef-
fect been rejected, see 6 Cum. Dig. 163, 0 Enc. .Dig. l/o.
Instances of Fellow Servants — Foreman. — While doing a
servant's work engaged solely in executing the ordinary
details of labor in connection with another servant, a
foreman who in other respects stands in the place of the
master is a fellow servant, and his negligence therein will
not render the master liable to the otner servant, except
where the master is a railroad company. McGovern v.
Columbus Mfg. Co., 80 Ga. 227t 5 S. E- 492; Wallace v.
Kimball Co., 20 Ga. App. 617; 93 S. E. 260. For other cases,
see 6 Cum. Dig. 164.
Same — Workman Directing Labor. — A workman engaged
in the same job with two or three others, and having the di-
rection of it, is not a general superintendent of a corpora-
tion so as to bind it as such, but stands on the footing of
a mere fellow-servant. McDonald v. Eagle, etc., Mfg. Co.,
67 Ga. 761; Shepherd v. Southern Pine Co., 118 Ga. 292, 45
S. E- 220. For other cases, see 6 Cum. Dig. 164.
Same — Illustrations. — Pursuant to the construction placed
upon this section, a teamster engaged in hauling for a
company is a fellow servant with the engineer and fireman
of a locomotive operated in the yards of the company.
Georgia Coal, etc., Co. v. Bradford, 131 Ga. 289, 62 S. E.
193. And the servants of a sawmill company, operating a
logging train are fellow servants of the employees of the
company being transported to the mill. Roland v. Tift, 131
Ga. 683, 63 S. E. 133. Also, a wood-cutter, an engineer, and
a brakeman, engaged in cutting, loading, and transport-
ing timber over a tramway to a sawmill for a common
master, are fellow servants. Stevens v. Bunn, 6 Ga. App.
315, 64 S. E. 1002. And in Donaldson v. Marsh Cypress Co.,
9 Ga. App. 267, 70 S. E- 1121, it was held that a helper and
machine repairer were fellow servants.
For many other illustrations, see 6 Cum. Dig. 164; 6 Enc.
Dig. 175.
liability as Affected by Duty to Furnish Appliances. —
When safe appliances are furnished, and an injury to a
servant is plainly attributable solely to negligence of fel-
low servants in the manner of using them or he failing to
use them, the master is not chargeable therewith. Hen-
derson v. Ocean Steamship Co., 15 Ga. App. 790, 84 S. E.
230.
Substitution of Improper Appliance by Fellow Servant. —
See Eraser v. Smith, etc., Co., 136 Ga. 18, 70 S. E. 792;
Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48
S. E- 438.
Contracts releasing master from liability for negligence
of fellow servant. For full treatment, see 6 Cum. Dig.
169; 6 Enc. Dig. 180.
Duty of Master to Select Competent Servants. — See § 3130
and note thereto.
Vice-Principal. — For a full and comprehensive treat-
ment of this subject, including many illustrations, see 6
Cum. Dig. 166; 6 Enc. Dig. 177.
The acts of a person authorized by the master to per-
form a duty which the master owes to his servant, in so far
as they pertain to that duty, are the acts of the master
himself; and when the servant is injured by reason of a
failure to perform it, the master can not escape liability
by setting up that the duty devolved upon a fellow -servant
of the person injured. Corcoran v. Merchants, etc., Transp.
Co., 1 Ga. App. 741, 745, 57 S. E. 962. See 6 Cum. Dig.
166; 6 Enc. Dig. 177.
Same — Definition. — The term "vice-principal," as used in
the fellow- servant law, has been defined as including any
servant who represents the master in the discharge of
those personal or absolute duties which every master owes
to his servants, such duties being often referred to as the
non-assignable duties of a master. Moore v. Dublin Cot-
ton Mills, 127 Ga. 609, 56 S. E. 839. For a collection of
cases, see 6 Cum. Dig. 166.
Same — Title No Test. — It is not the grade, or title, or the
position in the service, that determines whether a person
is a fellow-servant or a vice-principal of the master, but
it is the duty which the servant performs toward the other
servants. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56
S. E. 839.
Same — Effect of Assumption of Authority.— A fellow serv-
ant without the master's knowledge can not, by an assump-
§ 3130
MASTER'S LIABILITY TO SERVANT
^^^L§ 3130
tion of authority, convert himself into a vice-principal or
alter ego of the master. Hilton, etc., Lumber Co. v. In-
gram, 119 Ga. 652, 46 S. E. 895; Chenall v. Palmer Brick
Co., 125 Ga. 671, 676, 54 S. E- 663.
Same — Servants Charged with Duty of Providing Appli-
ances.— Under the allegations as made in the petition in
International Cotton Mills v. Webb, 22 Ga. App. 309, 96 S.
E. 16, the one who furnishes the alleged defective and un-
safe instrumentality to the employee, and who assured him
that it might be safely used, occupied the position of vice-
principal to the master. See Stevens v. Bibb Mfg. Co.,
16 Ga. App. 793, 86 S. E. 445.
Same — Duty to Employ Other Servants. — In Moseley v.
Schofield's Sons Co., 123 Ga. 197, 200, 51 S. E- 309, it was
held that one who had authority to employ laborers, and
was in charge of the work is a vice-principal. Ingram v.
Hilton, etc., Lumber Co., 125 Ga. 658, 660, 54 S. E. 648.
Application under Child Labor Law. — See note to §
3149 (1).
Pleading and Practice. — See 6 Cum. Dig. 169.
Section Applied. — For a collection of cases in which this
section has been construed, quoted and applied, see 6
Cum. Dig. 158; 6 Enc. Dig. 171.
§ 3130. (§ 2611.) Duty of master. — The master
is bound to exercise ordinary care in the selection of
servants, and not to retain them after knowledge of
incompetency; he must use like care in furnishing
machinery equal in kind to that in general use, and
reasonably safe for all persons who operate it with
ordinary "care and diligence. If there are latent de-
fects in machinery, or dangers incident to an em-
ployment, unknown to the servant, of which the
master knows or ought to know, he must give the
servant warning in respect thereto.
I. Editor's Note.
II. Duty to Provide Competent Fellow Servants.
A. In General.
B. Illustrations of Rule.
III. Duty to Provide Safe Machinery and Appliances.
A. In General.
B. Latent Defects.
C. Knowledge of Defects by Master or Servant.
D. Instrumentality Owned by Third Person.
E. Persons Employed to Repair Machinery.
IV. Duty to Provide Safe Place to Work.
A. In General.
B. Basis of Rule.
C. Application of Rule.
1. In General.
2. Illustrations.
V. Duty to Warn and Instruct Servant.
VI. Duty in Regard to Inspection and Repair.
VII. Duty in Regard to Rules for Conduct of Business.
VIII. Pleading and Practice.
Cross References.
See §§ 3129, 3131 and notes thereto. For a comprehensive
and exhaustive treatment of master and servant generally,
see 8 Cum. Dig. 425; 9 Enc. Dig. 239. For full treatment
of injuries by fellow servants, see § 3129 and note thereto.
See also, 6 Cum. Dig. 157; 6 Enc. Dig. 169. As to con-
stituting negligence as a bar to recovery, see § 2783.
I. EDITOR'S NOTE.
This and the following section are not statutory in ori-
gin. As was said in Southern States Portland Cement
Co. v. Helms, 2 Ga. App. 308, 58 S. E. 524, "they are
not, and do not purport to be, exhaustive of the subject
of the reciprocal liabilities and duties of master and serv-
ant; they are mere codifications of particular phrases of
the law as applied by the Supreme Court in certain re-
ported cases" (Ellington v. Beaver Dam Lumber Co.,
95 Ga. 53, 19 S. E. 21; May & Co. v. Smith, 92 Ga. 95,
18 S. E. 360; Georgia R., etc., Co. v. Nelms, 83 Ga. 70,
9 S. E- 1049) and, for the most part, rest on statements
culled in those cases from text-books; and are therefore
merely declaratory of the general law as it previously
existed, and must be construed in connection with the
entire general law on the subject. "The fact of their
being codified into the written law does not add to them
any quality of exhaustiveness, but still leaves them to be
construed in accordance with all the various exceptions,
qualifications, and extensions to which the principles an-
nounced therein were subject before they were placed in
the Code" (King v. Seaboard, etc., Ry., Co., 1 Ga. App. 88,
93, 58 S. E. 252). These doctrines, thus defining the ex-
tent of a servant's right to recover damages for injuries
received by him in the course of his employmeif\, repre-
sent the result of a compromise between thj! principal
that the servant agrees to assume all the risk/ incident to
the work undertaken by him, and the principal that the
master is answerable for the consequence of any negligent
act which may be committed by himself or his agents.
Prima facie, a servant does not assume any risks which
may be obviated by the exercise of reasonable care on
the master's part. Obviously the servant does not as-
sume the abnormal, unusual, or extraordinary risk as
being incidental to the work undertaken by him or those
which would not have existed if the master had fulfilled
his contractual duties. A second proposition, which is
also beyond the reach of controversy, is that every risk
which an employment still envolves after a master has
done everything that he is bound to do for the purpose
of securing the safety of his servants is assumed, as a
matter of law, by each of those servants. This doctrine
prevents recovery unless evidence is introduced which
warrants the inference that the injured person was inca-
pable in appreciating the risk from which his injury re-
sulted.
In all prior Georgia Codes the annotations under this
section and § 3131 have been compiled in one general note.
It was deemed expedient by the editor to separate the
notes of these two sections and to place the construc-
tions of each section in its proper place. And, although
the notes of the two sections are to be read together it is
obvious that they embrace two distinct subjects, viz.
"Duty of Master" and "Duty of Servant," and therefore,
to eliminate the tediousness for the searcher in a general
note of this nature the citations have been treated ac-
cordingly.
Although, the policy of this work is to confine the notes
to "direct constructions" the editor has in this and the
following note varied from this rule slightly to give to
the searcher all of the leading citations dealing with the
subject embraced in these sections.
For application of general principles under child labor
law, see note to § 3149(1).
The defenses of the assumption of risks, the fellow serv-
ant doctrine and the negligence of the employee are not
available to an employer who fails to elect to operate under
the Workmen's Compensation Act. For a full explanation
see editor's note . under § 3154 (1).
II. DUTY TO PROVIDE COMPETENT FELLOW
SERVANTS.
A. In General.
Essential Elements to Recovery. — Construing this sec-
tion and §§ 3129 and 3131 a servant may recover of the
master for an injury occasioned by the act of a fellow
servant. It is incumbent upon the injured servant, how-
ever, except where the employer is a railroad company,
to show the following facts: first that the fellow servant
was incompetent; second, that the injury complained of
resulted directly or proximately from such incompetency;
third, either (a) that the master knew of such incompe-
tency, or (b) that by the exercise of ordinary care he
could have known of it; fourth, that the injured servant
did not know of such incompetency; fifth, that by the
exercise of ordinary care he (the injured servant) could
not have known of it; and, sixth, that he did not have
equal means with the master for acquiring knowledge of
such fact. Camilla Cotton Oil, etc., Co. v. Walker, 21
Ga. App. 603, 94 S. E. 855. See § 3129 and note thereto.
See also, for full treatment of fellow servant doctrine, 6
Cum. Dig. 157; 6 Enc. Dig. 169.
In other words, the liability of the master arises be-
cause of his omission of the duty to provide the injured
employee with a competent fellow servant, not because
the negligence of the latter is in law imputable to the
master. Corcoran v. Merchants, etc., Transp. Co., 1 Ga.
App. 741, 746, 57 S. E- 962; Ingram v. Hilton, etc., Lumber
Co., 108 Ga. 194, 197, 33 S. E- 961; Cheeney v. Ocean
Steamship Co., 92 Ga. 726, 19 S. E- 33. For other cases,
see 8 Cum. Dig. 452; 9 Enc. Dig. 258.
As to liability of master for injury by fellow servant
generally, see § 3129 and note thereto.
The word "competent" should be given a comprehen-
sive interpretation and include within its range of mean-
ing all that "is essential to make up a reasonable safe
person, considering the nature of the work, and the gen-
eral safety of those who are required to associate with
such person in the common general employment." Swift
Mfg. Co. v. Phillips, 8 Ga. App. 425, 69 S. E. 585.
Degree of Care. — As the liability of the master depends
on the exercise of ordinary care it is necessary to de-
termine a standard, and the well established rule is that
the master must exercise such care as every prudent man
would exercise under the circumstances. This criterion,
[ 802
§ 3130
MASTER'S LIABILITY TO SERVANT
§ 3130
as to what would be done under the circumstances, varies
according to the time, place, and conditions. Otis Ele-
vator Co. v. Rogers, 159 Ga. S3, 54, 125 S. E. 60.
The master is not required to anticipate that a serv-
ant may be negligent, and to warn one of them of dan-
gers which may arise from the possible negligence of oth-
ers. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.
E. 13.
Presumption That Duty Is Discharged. — It is always
presumed that the master has discharged his duties to
the servant, and this includes the duty to provide a suffi-
cient force of competent workmen as well as all the other
personal duties of the master. Baxley v. Satilla Mfg.
Co., 114 Ga. 720, 40 S. E. 730; Georgia R., etc., Co. . v.
Nelms, 83 Ga. 70, 75, 9 S. E. 1049.
Duty to Charge Distinction between Negligence and In-
competency.— In a case so requiring, the distinction between
the negligence of a competent servant and the unskillful -
ness of an incompetent servant should be clearly pointed
out to the jury. Ingram v. Hilton, etc., Lumber Co., 108
Ga. 194, i3 S. E- 961.
B. Illustrations of Rule.
Leaving Servant in Dangerous Emergency. — There is a
plain breach of the master's nondelegable duty, when he
leaves the servant in a dangerous emergency through the
lack of an adequacy of helpers. Sparta Oil Mill v. Rus-
sell, 6 Ga. App 293, 295, 65 S. E. 37.
Inadequacy of Fellow Servant — Misrepresentations by
Master.— Beard v. Georgia Mfg. Co., 8 Ga. App. 618, 70
S. E. 57. For other illustrations, see 9 Enc. Dig. 259.
Incompetent Servant Acting Beyond Scope of Authority.
—See 8 Cum. Dig. 454.
Application under Child Labor Law. — See note to §
3149H).
III. DUTY TO PROVIDE SAFE MACHINERY AND
APPLIANCES.
A. In General.
The master is not an insurer with reference to the char-
acter of his machinery. Merchants, etc., Transp. Co. v.
Jackson, 120 Ga. 211, 47 S. E. 522.
Best Appliances Obtainable Not Required.— It is not in-
cumbent upon the master to procure the best and safest
machinery which can be made. It is sufficient if the ma-
chinery is of a kind in general use, and reasonably safe
for all persons who operate it with ordinary care and dil-
igence. Vinson v. Willingham Cotton Mills, 2 Ga. App.
53, 58 S. E. 413; Belk v. Lee Roy Myers Co., 17 Ga. App.
584, 87 S. E. 1089. See 9 Enc. Dig. 255, 256.
Purposes for Which Machinery Obtained. — Ordinary dil-
igence requires a master to furnish to his servant appli-
ances reasonably suited for the uses intended, but the
law does not exact of the master the extraordinary dili-
gence which would be demanded if it were required that
instrumentalities intended for one use should be safe and
suitable for every unintended use to which they might
be casually or unexpectedly applied. Babcock Bros. Lum-
ber Co. v. Johnson, 120 Ga. 1030, 48 S. E. 438. For other
:ases, see 8 Cum. Dig. 448.
But if the master requires a servant to use or knows
that he will necessarily use, an appliance originally in-
tended for another purpose, he will thereby be held re-
sponsible, as if the instrumentality had originally been
intended for such new use. Babcock Bros. Lumber Co.
r. Johnson, 120 Ga. 1030, 48 S. E. 438.
Applicable to Defective Tools. — This section is now ap-
plicable in cases of injuries arising from defective tools.
Williams v. Garbutt Lumber Co., 132 Ga. 221, 231, 64 S.
E 65.
Illustrations of Rule.— See 8 Cum. Dig. 448.
B. Latent Defects.
General Rule. — -Where defects in machinery or appliances
ire such as to deceive human judgment the master as well
is the servant stands excused for a failure to discover
them. Georgia R., etc., Co. v. Nelms, 83 Ga. 70, 9 S. E-
1049; Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S. E.
*30; Holland v. McRea Oil, etc., Co., 134 Ga. 678, 68 S.
E). 555. For other cases, see 9 Enc. Dig. 256.
Though a latent defect, under this section, it would be
negligent not to warn the servant of its existence, if the
naster knew, or by the exercise of ordinary care could
lave known, of its existence. Lawrenceville Oil Mill v.
Walton, 143 Ga. 259, 263, 84 S. E. 584. See post, this note,
'Duty to Warn and Instruct Servant," V.
Illustration.— A master who, after purchasing from an-
Jther a permanent structure or plant for the carrying on
if a particular business, puts his servant to work therein
Dr thereon, is not liable to such servant for injuries sus-
tained by reason of a latent defect therein, if the master
!ias exercised ordinary and reasonable care to detect the
[ 803 ]
same and has failed to discover it. Atlantic, etc., R. Co.
v. Reynolds, 117 Ga. 47, 43 S. E. 450.
C. Knowledge of Defects by Master or Servant.
If the facts show that the servant's knowledge of the
danger is equal to that of the master, a non-suit is proper.
Central, etc., R. Co. v. Henderson, 6 Ga. App. 459, 461,
65 S. E- 297. For other cases, see 8 Cum. Dig. 450; 9
Enc. Dig. 257. See note to § 3131, catchline "Assumption
of Risks by Servants," II.
Where in a suit for personal injuries it is manifest
from the allegations of the plaintiff's petition that he had
at least equal opportunities with the master (the defend-
ant) of discovering the defective condition of an appliance
from which the injuries complained of resulted, a general
demurrer to the petition was properly sustained. Lee v.
Atlantic Coast Line R. Co., 125 Ga. 655, 54 S. E. 678.
D. Instrumentality Owned by Third Person
A master is not relieved from his liability to his serv-
ant who is injured by defective instrumentality, by the
mere fact that the same is owned by a third person. If
the master uses the instrumentality in his business, and
so deals with it as to practically adopt it as his own, he
becomes, relative to a servant injured, the owner, and is
under the same duty to the servant as an owner would
be. Georgia Ry. Co. v. McClifford, 120 Ga. 90, 47 S. E-
590; Southern Bell Tel., etc., Co. v. Covington, 139 Ga.
566, 77 S. E. 382.
E. Persons Employed to Repair Machinery.
Where a master employs a servant not to work with
machinery, but to repair it when defective or out of or-
der, the provisions of this section do not apply to the ma-
chinery to be repaired. Green v. Babcock Bros. Lumber
Co., 130 Ga. 469, 60 S. E- 1062, citing, Dartmouth Spinning
Co. v. Achord, 84 Ga. 14, 10 S. E- 449, 6 L. R. A. 190.
IV. DUTY TO PROVIDE SAFE PLACE TO WORK.
A. In General.
Among the nonassignable duties of the master is that
of providing the servant a reasonable safe place to work.
Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S. E. 443;
Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S. E-
932; Turner v. Seville Gin, etc., Co., 127 Ga. 555, 56 S.
E. 739; Eagle, etc., Mills v. Johnson, 131 Ga. 44, 61 S. E.
990; International Cotton Mills v. Webb, 22 Ga. App. 309,
96 S. E. 16. For an exhaustive collection of cases on this
proposition, see 8 Cum. Dig. 442; 9 Enc. Dig. 251.
Protection of Servant While Engaged in Work. — The
master is bound to make reasonable provision for the pro-
tection of the servant against dangers to which he is ex-
posed while engaged in the work he is employed to per-
form. Jackson v. Merchants, etc., Transp. Co., 118 Ga.
651, 45 S. E. 254; Collev v. Southern Cotton Oil Co., 120
Ga. 258, 47 S. E. 932; Chenall v. Palmer Brick Co., 117
Ga. 106, 43 S. E. 443.
Degree of Care. — The duty of the master to furnish a
safe place for the servant to work is not absolute and un-
qualified. Some kinds of work are necessarily attended
with dangers against which the master can not by any
degree of diligence provide. In such case the law does
not require of him impossibilities; but if, by exercising
ordinary care, he can make safe the place wherein the
servant is to labor, it is the master's duty to do so. Otis
Elevator Co. v. Rogers, 159 Ga. 53, 55, 125 S. E. 60;
Merchants, etc., Transp. Co. v. Jackson, 120 Ga. 211, 47
S. E. 522. And. a charge to the jury which omits to qual-
ify the word "safe" by "reasonably" is inaccurate, but
will not constitute reversible error if the evidence is
clear and convincing. Eagle, etc., Mills v. Moncrief, 17
Ga. App. 10, 86 S. E. 260.
Servant Can Rely upon Performance of Duty. — Pursuant
to the provisions of this section "a servant can rely upon
the performance of the duty of furnishing a safe place in
which to work. Danger arising from an unsafe place is
not included within the risks assumed by the servant.
Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95
S. E. 765; Tufts v. Threlkeld, 31 Ga. App. 452, 460, 121
S. E. 120, citing, City of Atlanta v. Trussell, 21 Ga. App.
340, 94 S. E. 649; International Cotton Mills v. Carroll, 22
Ga. App. 26, 95 S. E. 472. See § 3131 and note thereto.
B. Basis of Rule.
This rule of safe premises is but a phase of the broader
and more anciently recognized doctrine of the common
law that every person who expressly or impliedly invites
another to come upon his premises or to use his instru-
mentalities is bound to use ordinary care to protect the
invited person from injury. Seaboard Air-Line Railway
v. Chapman, 4 Ga. App. 706, 62 S. E. 488: Brown v. Rome
Mach., etc., Co., 5 Ga. App. 142, 150, 62 S. E. 720.
§ 3130
MASTER'S LIABILITY TO SERVANT
§ 3131
C. Application of Rule.
1. In General.
See post, this note, "Illustrations," IV, C, 1.
Places to Which Rule Relates.— This rule is usually ap-
plied to a permanent place, or one which is quasi perma-
nent. It does not apply- to such places as are constantly
shifting and being transformed as a direct result of the
servant's labor, and where the work in its progress nec-
essarily changes the character for safety of the place in
which it is performed as it progresses. Upchurch v. Cul-
pepper, 17 Ga. App. 577, 87 S. E. 834. For other cases, see
8 Cum. Dig. 443.
But in Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390,
394, 112 S. E- 374, it was held that "The general rule in
regard to the duty of the master to furnish a safe place to
work is not rendered inapplicable merely because the serv-
ant was engaged in construction work, and that at the
time of the injury the object being constructed was in an
unfinished state, to some extent changing from day to day.
If it were otherwise, it would be difficult to find a case
where a workman was engaged in performing labor for
a master where the rule would apply. Practically all labor
normally tends to change the condition of the thing la-
bored upon; otherwise it would be useless." Tufts v.
Threl.keld, 31 Ga. App. 452, 461, 121 S. 15- 120.
2. Illustrations.
Buildings. — The master is not obliged to keep a build-
ing, Which his . servant are employed in erecting, in a safe
condition at every moment of their work, so far as its
safety depends on the due performance of that work by
them and their fellow servants. Byrd v. Thompson, 146
Ga. 300, 91 S. E. 100. For other illustrations generally, see
8 Cum- Dig. 444; 9 Enc. Dig. 252.
Platforms and Scaffolds. — The master is not, under his
general duty of respecting the servant V safety, held to the
same quantum of care in the erection of platforms and scaf-
folds intended only for temporary use as he is in the build-
ing and maintenance of more permanent structures. Riv-
erside Mills v. Brooks, 6 Ga. App. 67, 64 S. E- 282. See
also Dunn & Bro. v. Morris, 132 Ga. 440, 64 S. F. 321.
Excavation on Premises. — See King Mfg. Co. v. Walton,
1 Ga. APP- 403, 58 S. F. 115.
City Sewers. — A city acting under authority of its char-
ter in the repairing or construction of sewers is bound to
the same rule of diligence as to providing a reasonably safe
place for its employees to work that applies in the case of a
private contractor. Atlanta v. Trussell, 21 Ga. App. 340,
94 S. E. 649.
Telephone Poles. — Southern Bell Tel., etc., Co. v. Coving-
ton, 139 Ga'. 566, 77 S. F- 382.
V. DUTY TO WARN AND INSTRUCT SERVANT.
Editor's Note. — For a statement of the general rule to
instruct the' servant and illustrative cases, see 8 Cum. Dig.
459 et seqi; 9 Enc. Dig. 263 et seq.
The instruction of servants is a nonassignable duty of
the master. Moore v. Dublin Cotton Mills, 127 Ga. 609,
56 S. E. 839.
"But if a danger is obvious and as easily known to the
servant as to the master, the latter will not be liable for
a failure to warn. Crown Cotton Mills v. McNally, 123 Ga.
35, 51 S.: E. 13." Tufts v. Threlkeld, 31 Ga. App. 452, 460,
121 S. E. 120; Hendrix v. Vale Royal Mfg. Co., 134 Ga.
712, "68 S. E- 483. See note to § 3131, catchline "Assump-
tion' of Risks by Servants," II.
Inexperienced Servants. — The master is borind to instruct
inexperienced servants, without reference to their age, in
the operation of machinery, and appliances which they are
not acciuainted. Moore v. Dublin Cotton Mills, 127 Ga.
609, 56 S. E. 839.
The purpose of instruction by the master to inexperienced
servants is to inform them of the danger. Crown Cotton
Mills v. McNally, 127 Ga. 35, 51 S. E- 13.
Application under Child Labor Law. — See note to §
3149 (1).
Newly Developed Dangers. — The master is under abso-
lute duty to his servant to warn him of any unusual or
newly developed changes which arise in the course of the
employment and which are likely to escape an ordinary
prudent servant's knowledge under the circumstances.
Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58
S. E. 249.
Latent Dangers.— Under this section "if there are latent
defects in the construction of the place of work which are,
or in the exercise of ordinary care could be, known to the
master, and which are unknown to the servant, it is the
duty of the master to warn the servant thereof." Southern
Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95 S. E- 765;
Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S. E. 13.
For other cases, see 8 Cum. Dig. 460.
Implied Warning. — An adult servant of ordinary intelli-
gence will be held to be affected with knowledge of a
manifest risk or danger incident to the doing of a particu-
lar thing in the operation of a machine, during his em-
ployment, although he may be inexperienced as to such op-
eration and though the master may have failed to instruct
him in respect thereto. Hendrix v. Vale Royal Mfg. Co.,
134 Ga. 712, 68 S. E. 483.
Illustrations of Rule.— See 8 Cum. Dig. 461; 9 Enc. Dig.
263.
VI. DUTY IN REGARD TO INSPECTION AND
REPAIR.
Statement of Rule. — Among the absolute duties of the
master is that of making inspections for the discovery
of defects and dangers in those instrumentalities within
the range of which the servant is likely to come, in the
discharge of his duties; hence, by law, the master ought
to know of such defects as a reasonable inspection would
disclose. Southern States Portland Cement Co. v. Helms,
2 Ga. App. 308, 58 S. E. 524; Southern Bell Tel., etc., Co.
v. Shamos, 12 Ga. App. 463, 469, 77 S. E- 312; Moore v.
Dublin Cotton Mills, 127 Ga. 609, 56 S. E- 839; Spencer
v. Lauer, etc., Co., 4 Ga. App. 35, 37, 81 S. E. 387. For
full treatment of this proposition, see 8 Cum. Dig. 454;
9 Enc. Dig. 260.
Same — Illustrations of Rule. — See Rome Scale Mfg. Co. v.
Harvey, 15 Ga. App. 381, 385, 83 S. E. 434; Brown v.
Rome Mach., etc., Co., 5 Ga. App. 142, 62 S. E- 720; Hub-
bard v. Macon R., etc., Co., 5 Ga. App. 233, 224, 62 S.
F. 1018. For other illustrations, see 8 Cum. Dig. 465; 9
Enc. Dig. 260.
Duty of Servant to Inspect. — As a general rule, a serv-
ant is under no obligation to inspect the appliances about
which he works, or that part of the plant by which his
.safety may be affected, for the purpose of discovering con-
cealed dangers which would not be discovered by super-
ficial observation. Southern States Portland Cement Co.
v. Helms, 2 Ga. App. 308, 58 S. E- 524; Decatur Lumber
Co. v. Fulton, 26 Ga. App. 499, 106 S. E. 609.
Same — Presumption of Knowledge. — Not only is it true
that "the duty of inspecting for defects which would not
be disclosed by superficial observation is not primarily
imposed upon a servant" who is employed merely to op-
erate a machine or to see that it is operated, but, "ex-
cept where the injured employee is an inspector, the "mas-
ter's means of knowledge of latent defects in the machin-
ery furnished are primarily to be considered as greater
than those of the servant." Decatur Lumber Co. v. Ful-
ton, 26 Ga. App. 499, 106 S. E- 609.
VII. DUTY IN REGARD TO RULES FOR CONDUCT
OF BUSINESS.
For full treatment of duty of master to provide rules
for the conduct of the business, see 8 Cum. Dig. 456; 9
Enc. Dig. 261.
VIII. PLEADING AND PRACTICE.
The impracticability of compiling in a work of this na-
ture all the law of practice and procedure is obvious.
By referring to the note of § 3131, catchline "Actions for
Injuries to Servants," the searcher will find a collection
of illustrative cases.
By referring to 8 Cum. Dig. 535; 9 Enc. Dig. 299, the
searcher will find a comprehensive and exhaustive treat-
ment of this subject.— Ed. Note.
§ 3131. (§ 2612.) Duty of servant. — A servant
assumes the ordinary risks of his employment, and
is bound to exercise his own skill and diligence to
protect himself. In suits for injuries* arising from
the negligence of the master in failing to comply
with the duties imposed by the preceding section,
it must appear that the master knew or ought to
have known of the incompetency of the other
servant, or of the defects or danger in the machin-
ery supplied; and it must also appear that the
servant injured did not know and had not equal
means of knowing such fact, and by the exercise
of ordinary care could not have known thereof.
I. Editor's Note.
II. Assumption of Risks by Servants.
A. Effect of Contributory Negligence.
B. Risks Ordinarily Incidental to Service.
1. In General.
2. Illustration of Rule.
C. Patent and Obvious Defects and Dangers.
D. Risk Arising from Master's Negligence.
[ 804 ]
§ 3131
MASTER'S LIABILITY TO SERVANT
§ 3131
E- Assumption of Risks by Infants or Weak
Minded Persons.
F. Continuing- in Employment after Knowledge of
Master's Delinquency.
G. Abrogation of Implied Agreement to Assume
Risk.
H. What Risks Assumed Question of Fact.
III. Actions for Injuries to Servants.
A. In General.
B. The Declaration or Petition.
C. Instructions.
I. EDITOR'S NOTE.
This section is not statutory in origin but is based upon
the cases of Davis v. Augusta Factory, 92 Ga. 712, 18 S- E-
974; Georgia R., etc., Co. v. Nelms, 83 Ga. 70, 9 S. E. 1049,
and McDonald v. Eagle, etc., Mfg. Co., 68 Ga. 839. The
notes of this and the proceeding section should be read to-
gether by the searcher. The annotations here given have
been confined to cases involving assumption of the risks by
servants and suits to recover for injury by servants. The
citations given for the latter proposition, are not, and do
not purport to be exhaustive of cases of procedure but are
used as illustrations. For full treatment of practice and
procedure in cases between master and servant, see 8 Cum.
Dig 535; 9 Enc Dig. 299.
The defenses of the employee's negligence, assumption of
risks, and fellow -servant doctrine are not available to em-
ployers who fail to elect to operate under the workmen's
compensation act. The defenses are available where the
employer does so elect but the employee fails to elect to
operate under it. For a full explanation, see editor's note
under § 3154 (1).
II. ASSUMPTION OF RISKS BY SERVANTS.
A. Effect of Contributory Negligence.
For full treatment, see 8 Cum. Dig. 483; 9 Enc. Dig. 2/0.
As to distinction between contributory negligence and as-
sumption of risks, see Holland v. Durham Coal, etc., Co.,
131 Ga. 715, 722, 63 S. E- 290; Brown v. Rome Mach., etc.,
Co., 5 Ga. App. 142, 62 S. E. 720.
B. Risks Ordinarily Incidental to Service.
1. In General.
Assumption of risk is a term of the contract of employ-
ment, express or implied from the circumstances of the
employment, by which the servant agreed that dangers of
injury obviously incident to the discharge of the servants'
duty shall be at the servants' risk. In such cases, the ac-
quiescence of the servant in the conduct of the master does
not defeat a right of action on the ground that the serv-
ant causes or contributes to cause the injury to himself;
but the correct statement is that no right of action arises
in favor of the servant at all, for, under the terms of the
employment, the master' violates no legal duty to the serv-
ant in failing to protect him from dangers, the risk of which
he agreed, expressly or impliedly, to assume. Prather v.
Richmond, etc., R. Co., 80 Ga. 427, 9 S. E. 530; East Tenn.,
etc., R. Co. v. Reynolds, 93 Ga. 570, 20 S. E. 70; Worlds v.
Georgia R. Co., 99 Ga. 283, 25 S. E. 646; Plunkett v. Geor-
gia R. Co., 105 Ga. 203, 30 S. E. 728. For other cases, see
8 Cum. Dig. 470; 9 Enc. Dig. 267.
As a general proposition it may be stated that every risk
which is not caused by a negligent act or omission on the
master's part is assumed by the servant. Neary v. Geor-
gia Public Service Co., 27 Ga. App. 238, 243, 107" S. E. 893.
"Ordinary Care."— The skill and diligence which the law
requires an adult employee to exercise to protect himself
from being injured by defective or dangerous machinery
must at least come up to the legal standard expressed in
the words "ordinary care." Georgia Cotton Oil Co. v.
Jackson, 112 Ga. 620, 37 S. E. 873; Western, etc., R. Co. v.
Bradford, 113 Ga. 276, 278, 38 S. E. 823.
And the standard of diligence which these words are used
to define is well settled. By "ordinary care" is meant that
degree of care which might reasonably be expected of an
ordinarily prudent person under like circumstances. Geor-
gia Cotton Oil Co. v. Jackson, 112 Ga. 620, 622, 37 S. E-
873.
2. Illustration of Rule.
A servant engaged in carrying a heavy load assumes the
risk of stumbling therewith. Rush v. Southern R. Co.,
19 Ga. App. 521, 523, 91 S. E. 89S.
A servant assumes the risk incidental to the use of
dangerous machinery, where he has all the information
concerning the same, which due instructions from the mas-
ter could give him. Crown Cotton Mills v. McNallv, 127
Ga. 404, 56 S. E. 452; Short v. Cherokee Mfg. Co., '3 Ga.
App. 377, 59 S. E. 1115. See post, this note, "Patent and
Obvious Defects and Dangers," II, C.
Risks arising from the mode in which railroad yard is
conducted and tracks arranged are assumed. Kirbo v, So.
Ry. Co., 18 Ga. App. 187, 89 S. E- 179.
Risks incidental to inspection are assumed when dele-
gated to a servant. Redding v. Georgia Tel. Co., 6 Ga.
App. 831, 65 S. E. 106S.
For other cases illustrating the principle, and also for
fuller statement of facts in the cases set out above, see
8 Cum. Dig. 472; 9 Enc. Dig. 266.
C. Patent and Obvious Defects and Dangers.
See 8 Cum. Dig. 474; 9 Enc. Dig. 267.
General Rule.— Obvious risks incident to an employment
are assumed by the servant in his contract of employment.
Howard v. Georgia R. Co., 138 Ga. 537, 75 S. E- 624; In-
ternational Cotton Mills v. Carroll, 22 Ga. App. 26, 95 S.
E- 472. See ante, this note "In General," II, B, 1..
In Place of Work. — One who contracts to work upon a
swaying skeleton steel framework assumes all the .risks
reasonably incident to that kind of employment. Spencer v.
Eauer, etc., Co., 14 Ga. App. 35, 37, 81 S. E. 387. For other
cases, see 8 Enc. Dig. 474; 9 Enc. Dig. 268.
In Machinery and Appliances.— A servant is not obligated
to obey his master's command to do work in a dangerous
manner as with defective machinery, if the danger or the
defect is known to the servant, or is so patent and .obvi-
ous that by the exercise of ordinary care he ought to
know it. In such a case when the servant obeys the mas-
ter's command and is injured, pursuant to the construc-
tion placed upon this section, the former assumes the risk
and can^ not hold the master liable. Wood -v. Pynetree
Paper Co., 29 Ga. App. 81, 114 S. E. 83; Georgia R. Co. v.
Lindsey, 28 Ga. App. 198, 110 S. E- 636; Niblett v. La
Grange Mills, 18 Ga. App. 173, 88 S. E. 1009. For other
cases, see 8 Cum. Dig. 475, 496. As to acting in obedience
to orders resulting in injury to servant, see 8 Cum/ Dig.
496; 9 Enc. Dig. 277.
In Method of Work. — There can be no recovery when the
injury might have been anticipated as the natural and prob-
able consequence of the method of work. Noble v. Jones,
103 Ga. 584, 30 S. E. 535. See 8 Cum. Dig. 476; 9 Enc. Dig.
269.
D. Risk Arising from Master's Negligence.
Statement of Rule. — Prima facie, a servant does not as-
sume any risks which may be obviated by the exercise of
reasonable care on the master's part. King v. Seaboard
Air Eme Ry., 1 Ga. App. 88, 58 S. E. 252. See Editor's
Note under § 3130. See also 8 Cum. Dig. 477; 9 Enc. Dig.
269.
And the assumption by the servant of the known risks,
even of a dangerous employment, does not carry with it
the assumption of an unknown supervening extraordinary
hazard occasioned by the master's negligence. Atlanta,
etc., Ry. v. McManus, 1 Ga. App. 302, 309, 58 S. E- 258.
See also Georgia R. Co. v. Allen, 140 Ga. 333, 335, 78 S. E.
1052.
The expression "extraordinary risks," is generally used
to describe risks arising from the negligence of the mas-
ter, and they are generally held not to be assumed unless
they are known or obvious. Emanuel v. Georgia, etc., R.
Co., 142 Ga. 543, 545, 83 S. E- 230.
Illustrations of Rule. — See 8 Cum. Dig.. 477.
E. Assumption of Risks by Infants or Weak Minded
Persons.
As to effect of child labor law, see §§ 3149 (1) and notes
thereto.
Infants over the age of fourteen years are presumed to
assume the risk which the law makes incident to their
contracts of employment. Young v. Stuart Lumber Co.,
17 Ga. App. 410, 87 S. E- 149. See note to § 329. See also
6 Cum. Dig. 169; 6 Enc. Dig. 179. And see §.'§ 2787, 3474.
But this would not seem to be true as to infants between
the age of 14 and 16 in the employments enumerated as
dangerous in § 3149 (3).
Children under the age of fourteen are not to be consid-
ered as having assumed the risks of ordinarily patent, ob-
vious and known dangers not within the scope of their ca-
pacity to appreciate and avoid. Eagle, etc.. Mills v.
Moncrief, 17 Ga. App. 10, 29, S6 S. E. 260. See also King
v. Seaboard Air-Line Ry., 1 Ga. App. 88, 95, 58 S. E. 25J.
As to effect of child labor law, see note under § 3149 (1).
Elk Cotton Mills v. Grant, 140 Ga. 727, 79 S. E. S36.
Fellcw-Servants' Negligence. — The risk arising from the
negligence of fellow- servants is not patent, and there is no
presumption that the same was assumed by an infant of
tender years. Evans v. Mills, 119 Ga. 448, 46 S. E- 674.
F. Continuing in Employment after Knowledge of Master's
Delinquency.
Continuing in employment with knowledge of delinquen-
[ 805 ]
§ 3131
MASTER'S LIABILITY TO SERVANT
§ 3133
cies is an assumption of risk. Mills v. Bartow Lumber
Co., 9 Ga. App. 171, 70 S. E- 983. See 8 Cum. Dig. 481.
G. Abrogation of Implied Agreement to Assume Risks.
By Express or Implied Contract.— The agreement of the
servant to assume the risks incident to his employment,
which may ordinarily be implied as one of the stipula-
tions of the contract of employment, may be abrogated
by an express or implied contract to the contrary. Smith
v. Southern R. Co., 8 Ga. App. 822, 70 S. E. 192; Bush
v. West Yellow Pine Co., 2 Ga. App. 295, 58 S. E. 529.
For other cases, see 8 Cum. Dig. 479.
The master may, as a part of the contract, himself
assume the risk of injury to the servant, even from the
use, in the ordinary and usual way a defective or dan-
gerous instrumentality. He may lawfully contract to com-
pensate the servant for injuries resulting from an obvi-
ous defect or danger known to the servant. Elliott v.
Tipton Mill, etc., Co., 12 Ga. App. 498, 77 S. E. 667.
Master's Command and Assurance of Safety. — If the
servant complains to the master that the instrumentality
appears to be dangerous and thereupon the master com-
mands him to proceed with the work and assures him
there is no danger, then, unless the danger be so obvious
and manifest that no prudent man would expose himself
thereto the law implies a quasi new agreement whereby
the master relieves the servant of his former assumption
of the risk and places the responsibility for resulting in-
juries upon the master. Bush v. West Yellow Pine Co.,
2 Ga. App. 295, 58 S. E. 529; Massee, etc., Lumber Co.
v. Ivey, 12 Ga. App. 583, 77 S. E- 1130; Brown v. Rome
Mach., etc., Co., 5 Ga. App. 142, 150, 62 S. E. 720. See
for further treatment, 8 Cum. Dig. 479.
Master's promise to remove danger abrogates the as-
sumption of risk. Freeman v. Savannah Elect. Co., 130
Ga. 449, 60 S. E- 1042. For full treatment, see 8 Cum.
Dig. 480.
H. What Risks Assumed Question of Fact.
See 8 Cum. Dig. 481; 9 Enc. Dig. 270.
III. ACTIONS FOR INJURIES TO SERVANTS.
A. In General.
Editor's Note. — The citations here given are but illus-
trations of the practice and procedure applicable to ac-
tions by the servant against the master for injuries. By
referring to 8 Cum. Dig. 539; 9 Enc. Dig. 299, the searcher
will find a comprehensive and exhaustive treatment of this
subject.
Nature of Action. — In an action brought by a servant
against his master, for damages resulting from personal
injury received through a breach of one of the master's
duties, under the relationship between them, presents a
case of tort in which the broken duty "flows from rela-
tions created by contract." In some cases the duty and
the right of action for its breach are modified by the terms,
express or implied, of the underlying contract. Brown v.
Rome Mach., etc., Co., 5 Ga. App. 142, 62 S. E. 720.
B. The Declaration or Petition.
What Must Be Alleged. — In a suit by a servant against
the master, the petition should plainly and distinctly set
forth the elements necessary to a recovery. Legal results
arising from the facts alleged may be pleaded in general
terms or in the form of a legal conclusion. A petition so
drawn is good against demurrer. Southern States, etc.,
Co. v. Helms, 2 Ga. App. 308, 58 S. E. 524.
Same — Master's Dereliction of Duty. — In a proceeding
under this section it is essential that the servant, in for-
mulating his cause of action against the master, shall al-
lege facts from which the master's dereliction of duty is
made to appear; he must allege, either in so many words
or in the statement of facts from which the implication
may be drawn, that the injury was not the result of a
risk of danger assumed by him. Roland v. Tift, 131 Ga.
683, 687, 63 S. E- 133.
Same — Proximate Cause. — The petition must show that
the specific acts of negligence alleged therein were the
proximate cause of his injuries. Charleston, etc., R. Co.
v. Patton, 22 Ga. App. 554, 556, 96 S. E. 504.
Same — Knowledge. — It must appear from the petition
that the servant did not know, and had not an equal means
of knowing of defective machinery, and by the exercise of
ordinary care could not have known thereof. Bowers v.
Louisville, etc., R. Co., 33 Ga. App. 692, 127 S. E- 667. See
also, Niblett v. La Grange, 18 Ga. App. 173, 88 S. E. 1009;
Williams v. Georgia Southern, etc., Ry. Co., 31 Ga. 688,
121 S. E. 700.
The petition, however, need not contain allegations of
fact (a statement being sufficient) showing that the dan-
ger complained of was known or ought to have been known
by the defendant. Cedartown Cotton, etc., Co. v. Miles, 2
Ga. App. 79, 58 S. E. 289. For other cases, see 8 Cum. Dig.
537.
A petition by a servant against his master for injuries
resulting from defective machinery is not deficient under
this- section, as failing to allege that the servant injured
did not know and had not equal means of knowing of such
defect, "and by the exercise of ordinary care could not
have known thereof," where the petition alleges that the
defect was "unknown to" petitioner, "and could not have
been known to him upon inspection or the exercise of
care, but same was known or should have been known to
the defendant;" such allegations being taken as the equiv-
alent of the requirement set forth by the code. Dacatur
Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S. E. 609; Law-
renceville Oil Mill v. Walton, 143 Ga. 259, 84 S. E. 584. For
other cases, see 8 Cum. Dig. 537.
Same — Actions for Injuries Resulting from Dangerous
Condition in Place of Employment. — Taylor v. Virginia-Car-
olina, etc., Co., 4 Ga. App. 705, 62 S. E. 470.
Same — Actions for Injuries Resulting from Dangerous or
Defective Instrumentality. — See 8 Cum. Dig. 538.
Pleadings Strictly Construed against Pleader. — Since
pleadings are to be most strictly construed against the
pleader, an allegation that the master knew or ought to
have known of the defects and dangers is equivalent to a
charge of implied notice rather than of actual knowledge.
Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48
S. E. 438.
Declaration Held Sufficient. — The declaration or petition,
in actions for injuries to servants, in the following cases
were held sufficient. Seaboard Air-Line Ry. v. Pierce, 120
Ga. 230, 47 S. E. 581; Williams v. Garbutt Lumber Co.,
132 Ga. 221, 64 S. E. 65; Hobbs v. Small, 4 Ga. App. 627,
62 S. E. 91; Green v. Brinson R. Co., 16 Ga. App. 639, 85
S. E. 931; Atlanta v. Hagan, 20 Ga. App. 822, 93 S. E-
541. For other cases, see 8 Cum. Dig. 538.
Allegations Held Insufficient. — In the following cases the
declaration or petition failed to set forth a cause of action
and were subject to general demurrer. Babcock Bros. Lum-
ber Co. v. Tohnson, 120 Ga. 1030, 48 S. E- 438; Turner v.
Seville Gin, etc., Co., 127 Ga. 555, 56 S. E. 739; Williams v.
Southern R. Co., 144 Ga. 565, 87 S. E- 771. For other cases,
see 8 Cum. Dig. 540.
C. Instructions.
See 8 Cum. Dig. 550; 9 Enc. Dig. 304. .
§ 3132. (§ 2613.) Contracts exempting master
from liability for his negligence, void. — All con-
tracts between master and servant, made in con-
sideration of employment, whereby the master is
exempted from liability to the -servant arising from
the negligence of the master or his servants, as
such liability is now fixed by law, shall be null and
void, as against public policy. Acts 1895, p. 97.
Contracts for Benefits in Case of Injury. — A contract be-
tween an employee and his master, or another acting in
the latter' s interest, by the terms of which the employee
when physically injured, whether as a result of his own
negligence or not, or when sick, is to receive pecuniary
and other valuable benefits, and which stipulates that his
voluntary acceptance of any of such benefits in case of
injury is to operate as a release of the master from all
liability on account thereof, is not contrary to public pol-
icy. Petty v. Brunswick, etc., R. Co., 109 Ga. 666, 35 S.
E. 82; Houser v. Savannah Elect. Co., 9 Ga. App. 766,
72 S. E. 276. See 8 Cum. Dig. 511.
Applies to Contracts between Master and Servant. — This
section by its express terms applies exclusively to "con-
tracts between master and servant." It cannot, therefore,
by construction, be applied to any other contracts. New
v. Southern R. Co., 116 Ga. 147, 151, 42 S. E- 391.
Therefore, this section is not applicable to a contract
whereby a father hires his son to another, and releases
him from all liability for "damages for any injury sus-
tained" by the son while in the employer's service. New
v. Southern R. Co., 116 Ga. 147, 42 S. E. 391.
§ 3133. (§ 2614.) Term of employment. — That
wages are payable at a stipulated period raises the
presumption that the hiring is for such period; but
if anything in the contract shows that the hiring
was for a longer term, the mere reservation of
wages for a lesser time will not control. An indefi-
806 ]
§ 3133(1)
HOURS OF LABOR IN MANUFACTURING ESTABLISHMENT
§ 3138
nite hiring may be terminated at will by either
party.
For full treatment of right to discharge servant, see 8
Cum. Dig. 437; 9 Enc. Dig. 249. As to suit on breach of
contract for employment where the contract is for a year,
see § 3588 and note thereto.
Editor's Note. — This section is practically an adoption
of § 1291 of the 2nd volume of Story on Contracts which
is quoted with approval by Justice Simmons in Maga-
rahah v. Wright, 83 Ga. 773, 10 S. E. 584, from which this
section was taken. See Webb v. McCranie, 12 Ga. App.
269, 77 S. E- 175.
A contract for permanent employment continues indefi-
nitely, and is terminable by either of the parties at any
time. Bentley v. Smith, 3 Ga. App. 242, 59 S. E. 720.
A contract of employment, indefinite as to its duration,
is to be deemed a hiring for the term of one month only ;
and after the expiration of that period it was the right
of the defendants to terminate the employment at will.
Odom v. Bush, 125 Ga. 184, 53 S. E. 1013. See also Haag
v. Rogers, 9 Ga. App. 650, 72 S. E. 46.
Contract Held Terminable at Will of Employer. — See
Thompson v. Read Phosphate Co., 18 Ga. App. 535, 89
S. E. 1048.
For Month. — Where the wages were payable by the
month the contract may be terminated at the end of any
month. Foundation Co. v. Brannen, 25 Ga. App. 120, 102
S. E. 833.
For Year. — Where a slave was hired to make a crop and
no time was fixed for the termination of the contract of
hiring it was held that it would be presumed to be for a
year. Hobbs v. Davis, 30 Ga. 423.
Same — Editor's Note. — The above holding is in accord-
ance with the English rule which is to the effect that a
general hiring or a hiring by the terms of which no time
is fixed, is a hiring by the year, but this rule is not uni-
versally applicable « to all contracts of hiring in this coun-
try. See Mondon v. Western Union Tel. Co., 96 Ga. 499.
505, 23 S. E. 853.
By Week. — The fact that wages are payable weekly
raises the presumption that the contract of hiring was by
the week; and, there being no evidence that the hiring
in the present case was for a longer term, the judge of
the superior court did not err in rendering a final deci-
sion upon the certiorari, and entering a judgment against
the defendant for the sum admitted to be the weekly
wages of the plaintiff. Webb v. McCranie, 12 Ga. App.
269, 77 S. E. 175.
As to sufficiency of petition in an action for breach of
contract of employment, see Foundation Co. v. Brannen,
25 Ga. App. 120, 102 S. E. 833.
Instructions. — Where one of the issues in a case being
whether the plaintiff was employed by the month, and
there being testimony that he was so employed, as well
as testimony that he was employed by the day, it was
not error for the court to charge this section. Phillips
Iyumber Co. v. Smith, 7 Ga. App. 222, 66 S. E. 623.
§ 3133(1). Payments to employees twice a month,
when. — Every person, firm or corporation, includ-
ing steam and electric railroads, but not including
farming, saw-mill and turpentine industries, em-
ploying wage-workers, skilled or unskilled, engaged
in manual, mechanical or clerical labor including all
employees-, except officials, superintendents, or
other heads or sub-heads of departments, who may
be employed by the month or year at stipulated
salaries shall make payments in lawful money, or
checks, of the United States to said employees,
laborers and workers or to their authorized repre-
sentatives; such payments to be made on such dates
during the month as may be decided upon by such
person, firm or corporation, provided, however,
that such dates as may be selected shall amount to
an equal division of the month in respect to the
time of payments, the full net amount of wages or
earnings due said employees, laborers and wage-
workers. Acts 1919, p. 388.
§ 3134. Wages of deceased employer paid to
widow, minors or guardian. — It shall be lawful
upon the death of any person employed by any rail-
road company or other corporation doing business
in this State, who may have wages due him by said
railroad company or other corporation, and who
shall leave surviving him a widow or minor child or
children, to pay all of said wages, when they do not
exceed three hundred dollars, and in case such
wages exceed three hundred dollars, to pay the
sum of three hundred dollars thereof to the surviv-
ing widow of such employee, and in case he has no
surviving widow, but leaves surviving a minor child
or children, then said sum shall be paid to said
minor child or children without any administration
upon the estate of said employee; and said fund to
the amount of three hundred dollars, after the
death of said employee, is hereby exempt from any
and all process of garnishment. Acts 1901, p. 60;
1898, p. 91; 1915, pp. 21, 22.
As to rules of inheritance, see § 3931, par. 1. As to ex-
emption of laborer's wages from garnishment, see § 5298.
This section was amended by the Acts of 1915 (Acts
1915, p. 21), by striking therefrom the words "one hun-
dred" wherever they appeared in said section and substi-
tuting therefor the words "three hundred." — Ed Note.
§ 3135. Fund to be paid over on demand. — It
shall be the duty of such railroad company, or other
corporation, to pay over said fund on the demand
of the widow, and in case there be no surviving
widow, then on the demand of the minor child or
children, or the guardian thereof.
§ 3136. Payment operates as a release. — The
paying over of the fund under the preceding sec-
tions shall operate as a release from all claims
against said fund or railroad company or corpora-
tion by the estate of said employee or creditors
thereof, or the claims of the widow or minor child
or children, or the guardian thereof.
ARTICLE 3.
Hours of Labor in Manufacturing Establishments.
§ 3137. (§ 2615.) Hours of labor in factories. —
The hours of labor required of all persons em-
ployed in all cotton or woolen manufacturing es-
tablishments in this State, except engineers, firemen,
watchmen, mechanics, teamsters, yard employees,
clerical force, and all help that may be needed to
clean up and make necessary repairs or changes in
or of machinery, shall not exceed ten hours per day;
or the same may be regulated by employers, so
that the number of hours shall not in the aggregate
exceed sixty hours per week: Provided, that noth-
ing herein contained shall be construed to prevent
any of the aforesaid employees from working such
time as may be necessary to make up lost time, not
to exceed ten days, caused by accidents or other un-
avoidable circumstances. Acts 1889, p. 163; 1911,
p. 65.
For full treatment of labor, see 8 Cum. Dig. 1 ; 8 Enc.
Dig. 529. As to hours of service for trainmen, see § 2693.
This section was amended by Acts 1911 (Acts 1911, p. 65),
by striking therefrom the word "eleven" and inserting in
lieu thereof the word "ten," and by striking therefrom the
word "sixty- six" and inserting in lieu thereof the word
"sixty." — Ed. Note.
§ 3138. (§ 2616.) Contracts for longer time,
void. — All contracts made or entered into, where-
by a longer time for labor than is provided in the
foregoing section shall be required of said em-
ployees, shall be absolutely null and void, so far as
the same relates to the enforcement of said con-
[ 807]
§ 3139
CHILD LABOR REGULATED
§ 3149(1)
tracts with said employees, any law, usage, or cus-
tom to the contrary notwithstanding.
§ 3139. (§ 2617.) Penalty. — Any cotton or
woolen manufacturing establishment that shall
make or enforce any contract in violation of the
foregoing section, with any person as an employee
therein, shall be subject to a forfeiture of an amount
not less than twenty and not more than five hun-
dren dollars for each and every such violation.
§ 3140. (§ 2618.) Suits for violation. — Any per-
son with whom said contracts is made, or any per-
son having knowledge thereof, shall be competent
to institute suit against said cotton or woolen manu-
facturing establishment; and the amount as a
forfeiture shall inure to the benefit of the board of
education of the county in which said violation may
have occurred.
§ 3141. (§ 2619.) Hours of labor by minors. —
The hours of labor by all persons under twenty-one
years of age, in all other manufacturing establish-
ments or machine-shops in this State, shall be from
sunrise until sunset, the usual and customary times
for meals being allowed from the same; and any
contract made with such persons or their parents,
guardians, or others, whereby a longer time for
labor is, agreed upon or provided for, shall be null
and void, so far as relates to the enforcement of
said contracts against such laborers. Acts 1853-4,
p. 37.
As to employments of minors in factory, see § 3145.
For full treatment of infants, generally, see 7 Cum. Dig.
186; 7 Enc. Dig. 292.
§ 3142. (§ 2620.) Corporeal punishment to min-
ors. — No boss or other superior in any manufac-
turing establishment shall inflict corporeal punish-
ment upon minor laborers; and the owners of such
factory or machine-shop shall be directly liable for
all such conduct on the part of their employees; and
such minor may sue in his own name for damages
for such conduct, and the recovery shall be his own
property, and not belong to his parents.
As to parties to actions for torts, generally, see § 5517.
As to validity of suits by infants, see § 5524.
This section does not lessen the obligation of the em-
ployer to look to the safety and protection of the minor
operative, or interfere with the right of the parent to the
earnings of his minor child, but affords another safeguard
against the personal abuse of the minor by limiting the
authority over him so far as it expresses, but no far-
ther. Augusta Factory v. Barnes, 72 Ga. 217.
ARTICLE 4.
Child Labor Regulated.
§§ 3143-3149. — Repealed by Acts 1914, p. 88,
which was in turn repealed by acts 1925, pp. 291,
herein codified as §§ 3149(1)-3149(5).
§ 3149(1). Employment of children under 14 in
mills, etc., prohibited. — No child under the age of
fourteen years of age shall be employed by or per-
mitted to work in or about any mill, factory, laun-
dry, manufacturing establishment, workshop, Pro-
vided that it shall not be construed that this Act
shall affect domestic employment or agricultural
pursuits. Acts 1925, pp. 291, 292.
Cross References. — As to the penalty for the violation
of this section, and the four sections next following, set%
P. C, § 759 (1). As to applicability of workman's com-
pensation act to minor, see § 3154 (2). As to general
principles of master and servant, see §§ 3129-3131.
Editor's Note. — The first child's labor law was passed
in 1906 and appeared in the Code of 1910 as §§ 3143-3149.
This was repealed by the Act of 1914 which in turn was
repealed by this act.
The following annotations were taken from cases con-
struing the statute prior to the adoption of this act, but
the same rules very likely apply here.
"Law Prior to Enactment of Child Labor Law. — Al-
though in this state, prior to the adoption of the child'
labor law of 1906, the proprietor of a cotton factory, might,
without violating any criminal statute, and consequently
without thereby being guilty of negligence per se, employ
in such factory a child of tender years, yet even then such
employer was held to a high degree of care in protecting
such a child from danger. Beck v. Standard Cotton Mills,
1 Ga. App. 278, 57 S. F. 998."
The question as to what age a minor might be employed'
was not to be determined as a matter of law by the courts,
but as a matter of fact by the jury. Canton Cotton Mills
v. Fdward, 120 Ga. 447, 47 S. F. 937.
Object of Statute. — One of the objects of the statute
was to prevent the exposure of children under a desig-
nated age, and of the employers who would otherwise be
called upon to work with such children, to the dangers
incident to the presence of these immature and indiscreet
persons in such places. Piatt v. So., etc., Co., 4 Ga. App..
159, 60 S. F. 1068.
Illegal Employment Negligence Per Se. — The em-
ployment of a minor under the prescribed age in a fac-
tory, in disobedience of the Act of 1914, which was re-
pealed by this statute, was negligence per se, and if
injury to such child proximately resulted from employ-
ment a right of action in its favor arose. There is no-
apparent reason why this rule should not apply with equal
force to the present statute. Flk Cotton Mill v. Grant,
140 Ga. 727, 79 S. F. 836; Talmage v. Tift, 25 Ga. App.
630, 104 S. F. 91; King v. Crosby, 125 Ga. App. 595, 103
S. F. 850; Ransom v. Nunnally Co., 26 Ga. App. 222, 105
S. F. 822; Hodges v. Sav., etc., Co., 28 Ga. App. 406, 111
S. F. 441. See also 48 L- R. A. (N. S.) 656; 39 C. J., p.
297, § 424.
It is the violation of the statute which makes the neg-
ligence per se. Unless there is such a violation, there is rid
such negligence from mere employment of a child. See
39 C. J., p. 284, § 411.
In Pratt v. So., etc., Co., 4 Ga. App. 159, 60 S. F- 1068,
the court denned the term "negligence per se" as herein
used, and held that where the child is not within the
age prohibited, the negligence is not per se.
Same — Employer's Defense. — Ati employer may defend by
showing that he exercised due diligence to find out the
minor's age before employing her; and whether such dili-
gence was exercised was a question for the jury. Ransom
v. Nunnally Co., 26 Ga. App. 222, 105 S. F- 822. This rule
does not appear to be general, see 31 C. J., p. 996, § 16*
Same — Effect Where Injury Did Not Grow Out of Em-
ployment.— In a suit by a child alleging injury as result of
his employment and violation of the statute, if the injury
is not the result of the employment, but of some wholly in-
dependent cause disconnected from his employment, there
can be no recovery. Flk Cotton Mills v. Grant, 140 Ga.
727, 79 S. F. 826. But where injury is sustained in the
course of duty, the unlawful employment is ordinarily re-
garded as in itself the proximate cause of the injury. See
39 C. J., p. 300, § 427.
Same — Effect of Consent or Knowledge and Acquiescence
of Parent. — Where in violation of the Act of 1914, a child
under the age of fourteen years is employed in any of the
prohibited establishments named, and while so employed is
killed, his mother, who is dependent upon him in whole or
in part for a support, is not estopped from bringing an ac-
tion for the recovery of the value of his life although the
father is living, where she did not hire or place such child
in such plant, otherwise than by knowing he worked there
and by receiving his wages. Under such circumstances the
mother would not be in pari delicto with the corporation in,
whose employment the child was when killed. Hodges v.
Savannah Kaolin Co., 155 Ga. 143, 116 S. F- 303, reversing
the same case in 28 Ga. App. 406, 111 S. F- 441, and fol-
lowed in 30 Ga. App. 294, 117 S. F- 829.
See 23 A. L. R. 636, citing the Hodges case reported in
28 Ga. App. and discussing the general rule, and see 23
A. L. R. 641. See also King v. Floding, 18 Ga. App. 280,
89 S. F. 451. It is probably true that the Supreme Court
would have held otherwise if the parent in this case had
made the misrepresentation. See note under catchline fol-
lowing.
Accepting Employment as Contributory Negligence. —
A minor under the age of 14 years, by accepting employ-
ment in a cotton mill in violation of this section, is no*;
[ 808 ]
§ 3149(2)
CHILD LABOR REGULATED
§ 3149(4)
guilty of contributory negligence proximately causing in-
juries to his hands, caught between rollers. International
Cotton Mills v. Burnham, 284 Fed. 351. See § 3154 (2)
par. (b) providing that the workman's compensation act
shall be applicable to such minors.
Effect of Misrepresentation of Age — Estoppel.— A minor
who falsely represents herself to be over sixteen years of
age for the purpose of securing employment in a manufac-
turing plant is not estopped from showing in an action
against an employer to recover damages for personal injuries
that she was under the age at which the statute permitted
her to be employed in such plant. Ransom v. Nunnally
Co., 26 Ga. App. 222, 105 S. E. 822. See 31 C. J., p. 1006,
§35.
As a general rule a misrepresentation by a child, his par-
ent or guardian, or his friend is no defense to an employer
when sued by a child who is injured while unlawfully em-
ployed, unless allowed by a statute. See L. R. A. 1915, p.
1081. But where the parent is seeking to recover, having
himself made misrepresentation, the rule seems to be dif-
ferent. See 23 A. L,. R. 635, 641. However, if the misrep-
resentation were made by the other parent or the child,
there might be a recovery. See paragraph from Hodges v.
Sav., etc., Co., in this note.
Evidence Where Age at Issue — Father's Conversation
with Employer. — In an action for injuries to an employee
under the age of 14 years, who alleged employment in
violation of this section, where his age was an issue under
the pleadings, his father's testimony as to conversation
with defendant's superintendent after the accident, during
which the superintendent urged the father to sign a card,
was admissible as against the objection that it was irreve-
lant. International Cotton Mills v. Burnham, 284 Fed. 351.
Legal Employment — Negligence Question of Fact. — In a
case not covered by the statute, the question of the de-
fendant's negligence in employing the young person at the
particular occupation is usually one for the jury. Piatt v.
So., etc., Co., 4 Ga. App. 159, 60 S. E. 1068.
Assumption of Risks. — The statutory prohibition against
employing children under a prescribed age in a factory ex-
cludes the defense of the assumptions by them of risks in-
cident to such employment. Ranson v. Nunnally Co., 26
Ga. App. 222, 105 S. E. 822.
• Diligence Required of Children. — The diligence required
of children of tender years is not to be measured by the
ordinary care required of an adult; but due care in such a
child is such care as its capacity, mental and physical,
fits it for exercising in the actual circumstances of the oc-
casion and situation. Infants under 14 years of age are
chargeable with contributory negligence resulting from a
want of such care, and assuming the risk of those patent,
obvious, and known dangers which they are able to appre-
ciate and avoid. Evans v. Josephine Mills, 119 Ga. 448, 46
S. E. 674.
Dangerous Machinery — Effect of Statute upon General
Rule.— It was held in Piatt v. So., etc., Co., 4 Ga. App. 159,
60 S. E- 1068, that the child labor law of 1906 by specifically
providing that the employment of children under a desig-
nated age in certain occupations should be absolutely un-
lawful, has in nowise limited the general law in regard to
putting immature persons of tender years to work in or
near dangerous machinery. As to charging master with
actual knowledge where method used is dangerous within
itself. See 39 C. J., p. 290, § 416. It seems that the same
rule would apply to the present act. — Ed. Note.
Diminution of Damages. — Under the statute, if the plain-
tiff is not guilty of such negligence, as will prevent a re-
covery but is guilty of some negligence the doctrine of dimi-
nution of damages will also be invoked. Elk Cotton Mill
v. Grant, 140 Ga. 727.
Application of Fellow- Servant Doctrine. — As a general
rule the master is not liable to one servant for injuries in-
flicted by a fellow servant, because the risk thereof is one
of those assumed in the contract of the employment. But
this doctrine does not apply to infants of tender years and
the question of such negligence should be submitted to the
jury. Evans v. Josephine Mills, 119 Ga. 448, 46 S. E- 674.
In King v. Floding, 18 Ga. App. 280, 89 S. E- 451, the court
held that the master was not negligent where the minor
selected the fellow servant.
Change of Character of Employment. — See King v. Flod-
ing, 18 Ga. App. 280, 89 S. E. 451.
Workmen's Compensation Law.— See § 3154 (2).
Ordinances Held Valid.— The Act of 1914 was cited in
Sherman v. Atlanta, 148 Ga. 1, 15, 95 S. E- 698, in hold-
ing valid an ordinance prohibiting the employment of
minors under 21 years of age in the junk business.
§ 3149(2). Employment of children under 16 be-
tween 7 P. M. and 6 A. M. — No child between the
ages of fourteen and sixteen shall be employed by
or permitted to work in or about establishments or
occupations named in § 3149(1) between the hours
of 7:00 p. m. and 6:00 a. m. according to the stand-
ard time of the community in which such establish-
ment is located and unless all of the requirements
of the compulsory education law have been com-
plied with. Acts 1925, pp. 291, 292.
For annotations to this act, see note § 3149 (1).
§ 3149(3). Employment of children under 16 in
certain dangerous occupations specified. — No child
under the age of sixteen years of age shall be em-
ployed, permitted, or suffered to work at any of the
following occupations or in any of the following
positions: operating or assisting in operating any of
the following machines; circular or band saw; wood
shapers; wood jointers; planers; sand paper or
wood polishing machinery; wood turning or boring
machinery; machine used in picking wool, cotton,
hair, or any other material; job or cylinder printing
presses; boring or drilling presses; stamping ma-
chines used in sheet metal or tin ware, or in paper
or leather manufacturing or in washer or nut
factories; metal or paper cutting machines; corner
staying machines; steam boilers; dough brakes or
cracker machinery of any description; wire or iron
straightening of [or] drawing machinery; rolling
mill machinery; power punches or shears; washing,
grinding, or mixing machinery; laundrying machi-
nery; nor engaged in any work in or about a roll-
ing mill, machine shop or manufacturing establish-
ment, which is hazardous, or dangerous to health,
limb or life; or in proximity to any hazardous or un-
guarded gearing; or upon any railroad, whether
steam, electric, or hydraulic; or upon any vessel or
boat engaged in navigation or commerce within the
jurisdiction of this State. Nor shall any child under
the age of sixteen years be employed, permitted, or
suffered to work in any capacity, in, about, or in
connection with any process in which dangerous or
poisonous acids are used; nor in the manufacture or
packing of paints, colors, white or red lead; nor in
soldering; nor in occupations causing dust in in-
jurious quantities; nor in the manufacture or use of
poisonous dyes; nor in the manufacture or prepara-
tion of compositions with dangerous or poisonous
gases; nor in the manufacture or use of composi-
tions of lye in which the quantity is injurious to
health; nor on scaffolding; nor in heavy work in the
building trades; nor in any tunnel or excavation;
nor in, about, or in connection with any mine, coke
breaker; coke oven, or quarry; nor to be employed
to operate any automobile, motor car or truck; nor
to work in any bowling alley; nor in any place or
occupation which the State Board of Health may
declare dangerous to life or limb or injurious to the
health or morals of children under sixteen years of
age, provided this Act shall not apply to job or
cylinder presses operated in connection with charit-
able or Eleemosynary institutions. Acts 1925, pp.
291, 292.
For annotations to this act, see note to § 3149 (1).
§ 3149(4). Employment certificate issued by
superintendent of schools; revocation. — No child
between the ages of fourteen and sixteen shall be
employed by or permitted to work in or about any
of the establishments named in § 3149(1) unless
and until a certificate issued by the superintendent
[ 809 ]
§ 3149(4)
CHILD LABOR REGULATED
§ 3149(6)
of the schools (or by some member of his staff au-
thorized by him in writing) in the county or city
where said child resides is issued; showing the true
age of such child and that said child is not less
than fourteen years of age and is physically fit to
follow the employment sought to be obtained. A
like certificate shall be issued in cases of all children
between the ages of sixteen and eighteen. The
certificates must show that the said child is fully
sixteen years of age to qualify said child to work
between the hours of seven p. m. and six a. m. and
to be employed in any of the occupations enum-
erated in § 3149(3). No employment certificate
shall be issued to any child until he has submitted
to the issuing officer:
(1) A statement from the employer that at the
present time if he were furnished with a certificate
from the school superintendent as required by law
he could place the child at work, giving the char-
acter of employment, it being understood that the
employer does not undertake to employ the child
for any specific length of time.
(2) A showing satisfactory to the authority issu-
ing such employment certificate that such child has
attained the age specified and that such child is able
to read and write simple sentences in the English
language. One of the following evidences of age,
showing such child to have attained the age of four-
ten years, shall be required in the order herein
designated:
(a) A birth certificate or duly attested transcript
thereof issued by the registrar of vital statistics or
other officer charged with the duty of recording
births.
(b) A baptismal certificate or transcript of the
record of baptism duly certified, showing the date
of birth and place of baptism of child.
(c) A bona fide contemporary record of the date
of the child's birth comprising a part of the family
record of births in the Bible, or other documentary
evidence satisfactory to the issuing officer such as a
certificate of arrival in the United States issued by
the United States immigration officers and showing
the age of the child, or a life insurance policy:
Provided, that such other satisfactory document-
ary evidence has been in existence at least one year,
and in case of life insurance policy at least four
years:
And provided further, that a school record or a
school census record or a parent's guardian's or
custodian's affidavit or other statement of age shall
not be accepted except as specified in the succeed-
ing paragraph.
(d) A certificate signed by a public-health physi-
cian or public-school physician, or if neither of such
physicians is available a certificate from a physician
designated by the issuing officer stating, in his
opinion, the physical age of the child. Such cer-
tificate shall show the height and weight of the child
and other evidence of physical age revealed by the
physician's examination or upon which the opinion
of the physician is based. A parent's, guardian's,
or custodian's signed statement as to the age of
the child, and a record of age as given on the reg-
ister of the school first attended by the child, or in
any school census, if obtainable shall be submitted
with the physician's certificate showing physical
age. No certificate shall be issued if the physician's
certificate of physical age or the parent's statement
or the register of the school first attended or the
school census shows the child to be under fourteen
years of age.
The evidence of age stated in paragraph (a) shall
be required in preference to that specified in any
subsequent paragraph, and evidence of age per-
mitted by any later paragraph shall not be accepted
unless there shall be received evidence that the
proof of age required by the preceding paragraph
or paragraphs cannot be obtained. Upon the
termination of the employment of any child be-
tween 14 and 16 years of age, the employer know-
ing of such termination, his employer shall return
within 5 days the employment certificate to the au-
thority issuing same, and thereafter a new certifi-
cate shall be issued only upon presentation by the
child of a new statement for emploj^ment. If the
employer has no knowledge of the child having
terminated employment, but the child has failed to
appear for work during the period of thirty days,
the employer shall then return the certificate to the
authority issuing same. That the certificate men-
tioned in the foregoing paragraph shall state the
full name, date and place of birth of the child, with
the name and address of the parent, guardian, or
person sustaining the parental relationship to such
child, and that the child has appeared before the
officer, and the evidence of age required herein.
Blank forms of these certificates shall be furnished
by the Commissioner of Commerce and Labor to
the Superintendent of Schools in the respective^
cities and counties. A duplicate copy of each cer-
tificate shall be filed with the Commissioner of
Commerce and Labor within four days from its
issuance. The Commissioner of Commerce and
Labor may, at any time, revoke any certificate if.
in his judgment the certificate was improperly is-
sued. He is authorized to investigate the true age
of any child employed, hear evidence, and require
the production of relevant books or documents. If
the certificate is revoked, the then employer shall
be notified, and said child not thereafter be em-
ployed or permitted to labor until a new certificate
has heen legally obtained. Acts 1925, pp. 291, 294.
For full annotations to this act, see note to § 3149 (1).
Effect of Failure to File.— If the child employed is above
the designated age, a failure on his employers' part to take
and file the affidavit prescribed by § 3147 of the Code of
1910 hereby repealed, though criminal, is not such an act
of negligence, relative to the child, as to make the em-
ployer liable as a matter of law for his injuries. Piatt v.
So., etc., Co., 4 Ga. App. 159, 60 S. E. 1068.
Under the prior law the affidavit had to be filed for all
minors, while under the Act of 1925, this section, certificates
have to be filed up to eighteen years of age.
While the prior law pertains to an affidavit, it would seem
that the same rule would be applicable to failure to file the
certificate required by this section. — Ed. Note.
§ 3149(5). Enforcement by commissioner of
commerce and labor. — It shall be the duty of the
Commissioner of Commerce and Labor and his au-
thorized assistants to see that the provisions of this
Act are enforced. Acts 1925, pp. 291, 296.
Cross References. — As to the penalty for the violation of
this section, and the four sections next preceding, see P.
C, § 759 (1). For annotations to this act, see note to §
3149 (1).
§ 3149(6). Employment of minors as messen-
gers. — No minor under 16 years of age shall be
[810]
§ 3150
WORKMEN'S COMPENSATION ACT
§ 3154(1)
employed in the delivery of messages by any con-
cern or person engaged in the messenger service
business, or in the general work of the messenger
service between the hours of nine p. m. and six a.
m. Acts 1910, p. 117.
As to the penalty for the violation of this section, see
P. C, § 759 (2).
ARTICLE 5.
Seats and Fire-escapes.
§ 3150. (§ 2621.) Seats for female employees.—
All persons and corporations employing females in
manufacturing, mechanical, or mercantile establish-
ments must provide suitable seats, and permit their
use by such females when not necessarily engaged
in the active duties for which they were employed.
Acts 1889, p. 167.
See P. C, § 130.
§ 3151. (§ 2622.) Fire-escapes. — Owners of
every building more than two stories in height, not
including the basement, used in the third or higher
stories, in whole or in part, as factory or workshop,
shall provide more than one way of egress from
each story of said building, above the second story,
by stairways on the inside or outside of said build-
ing, and such stairways shall be, as nearly as may
be practicable, at apposite [opposite] ends of each
story, and so constructed that, in case of fire, the
ground can be readily reached from the third and
higher stories. Stairways on the outside of said
buildings shall have suitable railed landings at each
story above the first, and shall connect with each
of said stories by doors or windows opening out-
wardly, and such doors, windows, and landings
shall be kept at all time clear of obstructions. All
the main doors of such buildings, both inside and
outside, shall open outwardly, and each story shall
be amply supplied with means for extinguishing
fires. Acts 1889, p. 168.
See § 511, P. C.
The owner of a building who has provided fire-escapes
in accordance with the provisions of this section, and who
has rented certain stories above the second story in said
building to firms engaged in legitimate manufacturing busi-
ness, is not bound to exercise supervision over the portions
of the building rented, so as to insure that the passages or
entrances to the fire-escapes are at all times kept open.
West v. Inman, 137 Ga. 822, 74 S. E. 527.
Nor is such owner liable in damages to an employee in
said building, working on a floor above the second floor,
who suffered injuries from fire in consequence of obstruc-
tions placed in the passageway to the fire-escape by a ten-
ant who had rented that portion of the building around and
about the fire-escape. West v. Inman, 137 Ga. 822, 74 S.
E. 527.
§ 3152. (§ 2623.) Examination of buildings. —
The municipal authorities of the town or city where
such building is situated, or the ordinary of the
county if the building is situated outside of any
town or city, shall require the fire-marshal or chief
officer of the fire department, and if there is no fire-
marshal nor chief fireman, then some other suitable
official, to examine such buildings at least once a
year, and report in writing to said municipal au-
thorities, or said ordinary, that said requirements
have or have not been complied with. If not com-
plied with, the municipal authorities or the ordinary,
as the case may be, shall notify in writing the
owner of such building to provide needful altera-
tions or additions. Acts 1889, p. 168.
See § 511, P. C.
[81
§ 3153. (§ 2624.) Authority of municipal au-
thorities. — The municipal authorities of any town
or city in this State may, by ordinance, provide that
the provisions of this Article shall apply to all build-
ings not used as private residences, three or more
stories in height, within their limits.
§ 3154. (§ 2626.) Examination and report. — The
owners of buildings referred to in this Article shall
make all alterations or additions necessary to com-
ply with the requirements of this Article. Ex-
aminations and reports shall be made during the
month of December of each vcar.
ARTICLE 6.
Workmen's Compensation Act.
§ 3154(1). Titles. — This Act shall be known as
the Georgia Workmen's Compensation Act. Acts
1920, p. 167.
As to the penalty for the violation of this act, see P. C,
§ 702 (15).
Editor's Note. — This article constitutes the first Georgia
Workmen's Compensation Act. Prior to its enactment
rights and liabilities of employers and employees, which
now come under the act, were regulated by §§ 3129-3136,
inclusive, of the Code. For a general note on liability for
physical injury to another, see editor's note to § 4422.
The purpose is to furnish a speedy, inexpensive and final
settlement of claims of an injured employee against the
employer coming within its provision. Under § 3154 (12)
it excludes all other remedies.
This act, by §§ 3154 (9) -3154 (15), expressly exempted
from its operation railroads whose motive power is steam,
casual employers, charitable institutions, employers of
farm labor, domestic servants and all employers who regu-
larly employ less than ten men, except that such em-
ployees and employer may elect to accept the provisions of
this act.
The employers and employees exempted in the manner
stated above, failing to accept the provisions of the
Workmen's Compensation Act, are governed by the law as
it existed prior to its enactment. Therefore, railroads in
this respect continue to be controlled by the provision or
§§ 2782 et seq., and the provision of this act in no way af-
fects that statute. Others so exempted where the relation
of master and servant exists come within the provision of
§§ 3129 et seq. and as to such persons this statute in no way
affects the applicability of those sections, unless such per-
sons expressly accept its provisions. In all cases where the
Workmen's Compensation Act is applicable, § 3129, decla-
tory of the fellow servant rule, and § 3131, enunciating the
doctrine of the assumption of risks, do not apply.
The effect of the failure of employers and employees, who
are not expressly exempted, to accept the terms of this act
will be found in §§ 3154 (16) -3154 (18). It is provided by
those sections that in case the employer fails to elect to
operate under the act he shall be deprived of the defense
of negligence of the servant, the fellow servant rule and the
doctrine of the assumption of risks, this being true even
though the employee also fails to elect to accept the act.
But in case the employee rejects it, it having been ac-
cepted by the employer, those defenses are available to the
employer.
To recapitulate the only instances in which §§ 3129 and
3131 are applicable are where the employer and employees
are expressly exempted from the operation of the Work-
men's Compensation Act by § 3154 (15), electing not to be
bound by it, and in cases where the employee elects not to
ooerate under the act. the employer so electing. Section
2782 et seq., the employer's liability act applying to rail-
roads, is inapplicable to them, the Workmen's Compensa-
tion Act applying in lieu thereof, only in case such rail-
roads and their employees elect to operate under the Work-
men's Compensation Act under the terms of § 3154 (15).
In the case of Davis v. Menefee, 131 S. E- 527, the In-
dustrial Commission seems to have held one employing
labor to improve real estate, liable under the railroad em-
ployer's liability act. §§ 2782 et seq., but applied the rules
of the Workmen's Compensation Act, § 3154 (59), in deter-
mining the grounds upon which such decision might be set
aside in case of error. It may be that the citation of the
railroad employer's liability act was an error in the re-
1]
§ 3154(2)
WORKMEN'S COMPENSATION ACT
§ 3154(2)
port of this case for it is difficult to understand how on*;
employed to improve real estate can be brought within its
terms.
Whether Liberally or Strictly Construed.— While this act
is in derogation of the common law, yet, in view of its
beneficent purpose and remedial character, it should be #so
liberally and broadly construed as to effect its general pur-
pose in every instance in which its language is such as to
render judicial interpretation necessary. Austin Bros.
Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S. E- 345;
New Am. Cas. Co. v. Sumrell, 30 Ga. App. 682, 118 S. E-
786; Von Vueck v. Troy. Ins. Co., 157 Ga. 204, 121 S. E-
215.
But this language had reference to the application of the
remedy as between the master and the servant, and not
to the scope of the act with respect to others. With re-
gard to that, the general rule would be applicable, that
statutes in derogation of common law and in contraven-
tion of the public policy of the State should be strictly
construed. Hotel Equipment Co. v. Liddell, 32 Ga. App.
590, 593, 124 S. E. 92.
§ 3154(2). Definition of terms; compensation on
basis of wage. — In this Act, unless the context
otherwise requires:
(a) "Employers" shall include any municipal
corporation within the State and any political divi-
sion thereof, and any individual, firm, association
or corporation engaged in any business operated
for gain or profit, except as hereinafter excepted,
and the receiver or trustee of the same, and the
legal representative of a deceased employer, using
the service of another for pay. If the employer is
insured it shall include his insurer so far as ap-
plicable.
Cross References. — As to when the relationship of em-
ployer and employee exists in specific instances, and tests
for determining relationship, see note under subsection "b"
of this section.
Agent Held Liable as Employer. — Where the agent of an
undisclosed principal while acting within his authority em-
ploys another, either the principal or agent may be held
liable to the employee for injuries in course of employ-
ment under the principles set out in § 3596, but not botb
jointly. But if such agent acts beyond the authority of
his principal he alone is liable under § 3613 of the Code.
Davis v. Menefee, 131 S. E. 527.
Application to Person Other than Employer. — There is
no reason for holding that if another corporation or per-
son other than the employer is guilty of negligence which
results in injury or death, such corporation or person should
have the benefit of the act which establishes the rate of
compensation for injury to an employee as against an em-
ployer, where the employer and employee have accepted the
provisions of this act. Athens Ry., etc., Co. v. Kinney,
160 Ga. 1, 6, 127 S. E. 290. See also the case of Atlantic Ice
& Coal Cor. v. Wishard, 30 Ga. App. 730, 119 S. E. 429,
which decision was approved in this case.
(b) "Employee" shall include every person, in-
cluding a minor, in the service of another under any
contract of hire or apprenticeship, written or im-
plied, except one whose employment is not in the
usual course of the trade business, occupation or
profession of the employer and, except as herein-
after set out. Minors are included even through
working in violation of any child labor law or other
similar statute, provided that nothing herein con-
tained shall be construed as repealing or altering
any such law or statute. Any reference to any em-
ployee who has been injured shall, when the em-
ployee is dead, include also his legal representa-
tives, dependents and other persons to whom com-
pensation raajr be payable, pursuant to the
provisions of this Act.
As to child labor law, see §§ 3149 (1) et seq.
Tests for Determining Relationship. — The real test by
which to determine whether a person is acting as the serv-
ant of another is to ascertain whether at the time when
the injury was inflicted he was subject to such person's
orders and control, and was liable to be discharged by him
for disobedience of orders or misconduct. See Brown v.
Smith, 86 Ga. 274, 12 S. E. 411, 22 Am. St. Rep. 456; 1 Shear-
man & Redfield on Negligence (6th ed.), 160. If the con-
tract reserve to the proprietor the power of appointment
and dismissal, and control of the details of the work to be
performed, the proprietor becomes an employer and the
other an employee. I LaBatt's Master & Servant, § 18.
New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682,
684, 118 S. E. 786.
Must Be Workman.— The only possible limitation that
can be placed upon the character of the employee entitled
to compensation is that he must be a workman. If an em-
ployee of a city is a workman, he is not debarred from
compensation merely because he is a workman performing
a duty which is denominated governmental. "Laborer" is
synonymous with "workman;" and a laborer is one who
performs "work, the doing of which properly would de-
pend upon a mere physical power to perform ordinary
manual labor." A public official is not an employee. Oliver
v. Macon Hdwe. Co., 98 Ga. 249, 25 S. E. 403, 58 Am. St.
R. 300. See § 3154 (8). Atlanta v. Hatcher, 31 Ga. App.
633, 634, 121 S. E. 864.
While the court in the above case did not hold that only
persons performing manual labor exclusively, without the
exercise of mental skill, are entitled to recover as em-
ployees under the act, it did hold that one who is a laborer,
or workman, in every sense of the word, is an employee en-
titled to recover under the act, even though his duties are
governmental. Atlanta v. Hatcher, 31 Ga. App. 633, 634,
121 S. E. 864. Distinguishing Marlow v. Mayor, etc., of
Savannah, 28 Ga. App. 368, 110 S. E. 923.
Necessity of Being Paid Wage. — See note under sub-
section C of this section.
Policeman of Municipality. — The term "employee" in this
section does not apply to a policeman of a municipality.
The relation of employer and employee does not exist be-
tween a municipality and a policeman so as to create a
liability and benefits under the act; for a policeman is a
public officer. Marlow v. Mayor, etc., of Savannah, 28 Ga.
App. 368, 110 S. E- 923.
One employed by a city to drive a sanitary cart is an
"employee" entitled to compensation under this act. At-
lanta v. Hatcher, 31 Ga. App. 633, 121 S. E. 864.
Salesman. — The award of compensation to a salesman- on
highway by" the Industrial Commission on the second hear-
ing of this case was authorized by the evidence. New
Amsterdam Cas. Co. v. Sumrell, 33 Ga. App. 299, 126 S. E-
271.
Fisherman in Navigable Waterway. — This act is ap-
plicable to one employed in fishing in a boat in navigable
waterway around bars in sight of land. Trav. Ins. Co. v.
Bacon, 30 Ga. App. 728, 119 S. E. 458.
Use of Another's Employee. — Where the employer fur-
nishes another the service of its employees, there being no
contractual relationship between the employee and such
person, although such employee was to carry out certain
instructions of such person, the relationship of master and
servant does not exist between the servant and such third
person. Ga. R. & P. Co. v. Middlebrooks, 128. S. E. 777.
Employees of Independent Contractors. — The evidence is
this case shows that the workman, for whose death com-
pensation, under the workmen's compensation act, was
sought, was not an employee of the insured company in the
work in which he was engaged when he was killed, but
was an employee of an independent contractor. The
superior court therefore erred in sustaining the award
against the insurance company. United States, etc., Co.
v. Corbett, 31 Ga. App. 7, 119 S. E. 921.
Question One of Fact — Commissions Finding Conclusive.
— Where the evidence authorizes an inference that a per-
son is an employee entitled to compensation, a finding to
that effect by the industrial commission is conclusive as to
the fact and will not be set aside. Trav. Ins. Co. v. Bacon,
30 Ga. App. 728, 119 S. E. 458. See § 3154 (59).
(c) The basis for computing the compensation
provided for in this Act shall be as follows:
The compensation of an injured person shall
be computed on the basis of the regular wage re-
ceived by the employee on the date of the accident.
The compensation of the injured person who has
not been receiving regular wages and has been
employed for such a short period of time that it is
impracticable to accurately determine his wages,
the wages of the employees of the same class, in
the same employment, in the same localitj^ or, if
that be impracticable, of neighboring employees
[812]
§ 3154(2)
WORKMEN'S COMPENSATION ACT
§ 3154(2)
of the same kind shall be used as a basis for
determining the wages of such injured employee.
Compensation Not Based Upon Value of Life.— This act
puts a limit upon the amount that may be recovered for
injuries to or death of one of its employees, that may be
far less than the actual value of the life destroyed. Athens
Ry., etc., Co. v. Kinney, 160 Ga. 1, 5, 127 S. E. 290.
Basis for Figuring Expectancy. — An award of compen-
sation which is based upon evidence relating solely to the
qualifications of the employee as a salesman, his earnings
in commissions during a period of less than one month,
and the prospect of an increase in his earnings had he lived
is without sufficient competent evidence to support it. For
this reason, irrespective of any other, the judgment of the
superior court affirming the award on the appeal of the
insurance carrier is reversed. New Amsterdam Casualty
Co. v. Sumrell, 30 Ga. App. 682, 118 S. E. 786.
Necessity of Receiving Some Wage. — While paying of
wages is not necessary to render one a master, paying is
necessary to bring one within the workmen's compensation
act. The entire act contemplates that the compensation of
the injured employee shall be fixed in proportion to his
wages as applied to the particular injury. Ga. Ry. & P.
Co. v. Middlebrooks, 128 S. E. 777.
(d) "Injury" and "personal injury" shall mean an
injury by accident, arising out of and in the course
of employment and shall not include a disease in
any form except that resulting naturally and un-
avoidably from the accident. Nor shall "injury"
and "personal injury" include injury caused by the
wilful act of the third person directed against the
employee for reasons personal to such employee.
When an employee coming under provisions of
this Act receives an injury for which compensation
is payable under this Act and which injury was
caused under circumstances creating a legal liability
in some person other than the employer to pay
damages in respect thereto, the employee, or benefi-
ciary, may take proceedings both against that per-
son to recover damages and against the employer
for compensation but the amount of compensation
to which he is entitled under this Act shall be re-
duced by the amount of damages recovered. If the
employee, or beneficiary of the employee, in such
case recovers compensation under this Act, the em-
ployer by whom compensation was paid, or the
party who has been called upon to pay the compen-
sation, shall be entitled to indemnity from the per-
son so liable to pay damages as aforesaid, and shall
be subrogated to the rights of the employee to re-
cover therefrom, to the extent of the compensation.
I. General Considerations.
II. Accident in Employment.
III. Disease Arising from Accident.
IV. Wilful Injury by Third Person.
V. Compensation from Employer and Third Person — Sub-
rogation.
I. GENERAL CONSIDERATIONS.
Limitation of Act to Employers and Employees. — See §
3154 (2), par. (a).
Proximate Cause. — For a full treatment, see 8 Cum. Dig.
821, 9 Enc. Dig. 567. And see post, this note, "Disease
Arising from Accident," III.
Effect of amendment of 1922, see post, this note "Wilful
Injury by Third Person," IV. "Compensation from Em-
ployer and Third Person — Subrogation," V.
II. ACCIDENT IN EMPLOYMENT.
As to defeat of recovery where injury caused by wilful act
personal to employee, see post, this note, "Wilful Injury by
Third Person," IV.
When Injury Arises in Course of Employment. — An in-
jury arises "in the course of employment," when it oc-
curs within the period of the employment, at a place
where the employee reasonably may be in the performance
of his duties, and while he is fulfilling those duties or
engaged in doing something incidental thereto. New Ams-
terdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118 S.
E. 786.
An accident arises "out of" the employment when it
arises because of it, as when the employment is a contrib-
uting proximate cause. New Amsterdam Casualty Co.
v. Sumrell, 30 Ga. App. 682, 118 S. E. 786.
Necessity of Concurrence. — The injury must not only
arise out of but also in the course of employment, neither
alone being enough. Cas. Co. v. Sumrell, 30 Ga. App. 682,
118 S. E. 786. And see Ga. Ry. & P. Co. v. Glore, 129 S.
E. 799.
Certain convict guards were leisurely gathered in camp.
One of the guards, the deceased, took from the pocket of
another a gun in a joking fashion, snapped it, unbreacheu
it, and then in this condition delivered it to its owner. In
attempting to breach it preparatory to returning it to his
pocket, the gun fired killing the deceased. The commission
properly found that while this accident arose in the course
of employment it did not arise out of the employment,
there being nothing to indicate that such handling of the
gun was an incident to the employment. Ga. Cas. Co. v.
Martin, 157 Ga. 909, 122 S. E. 881. Overruling 30 Ga. App.
712, 119 S. E. 337; and see same case in 32 Ga. App. 453, 123
S. E. 732.
Before and After Working Hours. — A reasonable time
must ensue after an employee reaches the employers
premises prior to the time when work should begin, and
a reasonable time after work ends before leaving the premi-
ses during which time an accident occurring should be con-
strued as arising out of and in the course of the employ-
ment. A holding by the commission that two hours is an
unreasonable length of time was not disturbed by the
court. Jackson v. Cas. Co., 33 Ga. App. 35, 125 S. E. 515.
To and From Work. — Death or injury to an employee on
his way to work while pursuing a course of his own selec-
tion does not arise out of and in the course of employment
within the meaning of this act. Ga. Ry. & P. Co. v.
Clore, 129 S. E. 799.
Individual Work During Working Hours. — Where black-
smith's helper assisted blacksmith in making hinges for
helper's own use, which blacksmith made at his request,
and where it was the custom of company to do work for ios
employees, and helper had, under instrxictions from blacic-
smith, performed such work for other employees, inference
was authorized that helper, when helping to make hinges,
notwithstanding the fact that the work was in violation of
a company's rule, no order therefor having been obtained,
performed the work as "employee" acting in course of em-
ployment and injuries sustained by him while so working
was compensable within workmen's compensation act.
Sheffield v. Ref. Co., 129 S. E. 667.
Accidents on Public Highway. — If the work of an em-
ployee or the performance of an incidental duty involves an
exposure to the perils of the highway, the protection of the
compensation act extends to the employee while he is pass-
ing along the highway in the performance of his duties.
New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682,
118 S. E. 786.
One who is employed to drive an ice-wagon and deliver
ice to various points in a city, off the premises of the em-
ployer, and who in the discharge of such duties must travel
along a certain route which crosses a railroad track, is,
when driving the wagon loaded with ice along such route
for the purpose of making deliveries and crossing the rail-
road track, acting within the course of his employment. It
being necessary to expose himself to injury from railroad
trains when in the aat of passing over the railroad cross-
ing, his death, when caused by a collision at such cross-
ing between the wagon driven by him and a railroad train
while he was in the discharge of his duty in attempting to
drive across the railroad crossing, arises out of the em-
ployment. Atlanta Ice, etc., Corporation v. Wishard, 30
Ga. App. 730, 119 S. E. 429.
Ship Employee Killed on Land. — Where an employee
upon a ship, while the ship was docked, obtained leave for a
few hours to go into an adjacent city, he was in the course
of his employment when he attempted, on his way back to
the ship, to enter a gate maintained by his master between
its private docks and terminals and a public street, for the
entrance and exit of the master's employees, the relation
of master and servant not being suspended, though per-
haps being dormant. Holliday v. Merchants, etc., Co., 32
Ga. App. 567, 124 S. E. 89.
Riding Upon Truck. — A laborer who is employed to as-
sist in hauling logs upon an automobile from a swamp to
his employer's sawmill located elsewhere, and who is per-
mitted by his employer to ride upon the truck when going
to the mill from the swamp for the purpose of bringing
back logs, is in the discharge of his duties when so riding
upon the truck; and where injured by falling from the truck,
his injury arises out of and in the course of his employ-
ment. Integrity Mutual Cas. Co. v. Jones, 33 Ga. App. 489,
126 S. E. 876.
[813]
§ 3154(2)
WORKMEN'S COMPENSATION ACT
§ 3154(2)
Injury to express messenger who slipped and fell under
train, which : was coming into station, while speaking to
another express messenger who was on the ground, was
from an accident arising out of and in the course of em-
ployment. Southeastern Exp. Co. v. Edmondson, 30 Ga.
App. 703.
Evidence Authorizing Denial — Injury Not Proximate
Cause.— A decree denying compensation on grounds that
death was not from injury arising out of course of em-
ployment was authorized by evidence showing that de-
ceased did not show symptoms of alleged poisons from
gases of exploding dynamite until three or four days after
exposure thereto, that mine was well ventilated, and that
person inhaling quantity of such gas sufficient to cause death
is affected within twenty-four hours. Cas. Co. v. England,
159 Ga 306, 129 S. E. 446.
Finding of Fact Conclusive. — Since the finding of facts by
the commission are conclusive where there is evidence to
sustain it, a finding of facts which fail to show that an
accident arose out of employment is conclusive and the
claimant is not entitled to recover compensation. Ga. Cas.
Co. v. Martin, 157 Ga. 909, 122 S. E- 811; 32 Ga. App. 453,
123 S. E. 732. See § 3154 (59).
Where there is conflict in evidence, one view tending to
establish that the accident was within the employment and
the other negativing it, and the commission accepts one
view rather than the other, its finding is conclusive.
Southeastern Exp. Co. v. Edmondson, 30 Ga. App. 697, 119
S. E. 39.
III. DISEASE ARISING FROM ACCIDENT.
The word "naturally," as here employed means accord-
ing to the laws of nature or the usual course of things. It
is unimportant that it is unusual for persons to be afflicted
with the disease in question provided it seizes the par-
ticular person in the way usual to the disease. Cas. Co.
v. Smith, 129 S. E- 880.
The word "unavoidably" is to be given a reasonable in-
terpretation according to the general acceptation, having in
mind the general requirements of the law as to the care
and diligence which ordinarily a person now exercises for
his own safety and protection. It is not employed in the
absolute sense, and does not imply that the disease must
follow certainly. A thing is generally considered unavoid-
able when common prudence and foresight can not prevent
it. Where (he evidence shows that the employee consulted
a physician promptly and was constantly under treatment, it
was sufficient to establish that he could not have avoided
the disease by ordinary care. Cas. Co. v. Smith, 33 Ga.
App. 269, 129 S. E. 880.
When Disease Results Naturally and Unavoidably. — A
disease results naturally and unavoidably from a injury
within the meaning of this statute when it is contracted in
a way that it is natural to the disease, and when it could
not have been avoided by the victim through the exercise
of reasonable care and caution. Cas. Co. v. Smith, 33 Ga.
App. 269, 129 S. E. 880.
Effect Upon Proximate Cause Doctrine. — The industrial
commission was authorized to find that the employee was
suffering from the disease of blastomycosis that resulted
naturally and unavoidably from his original injury. This
statute in providing that a disease must have resulted
naturally and unavoidably from the accident, does not
abolish the well established proximate cause doctrine, but
defines it so far as it relates to disease, in compensation
cases.
The defense, however, does appreciably change the gen-
eral rule and might have been inserted for the purpose of
excluding diseases developing in the course of the em-
ployment but not caused by some antecedent injury. Cas.
Co. v. Smith, 33 Ga. App. 269, 129 S. E. 880.
IV. WILFUL INJURY BY THIRD PERSON.
As to defeat of recovery by wilful acts of employee, see
§ 3154 (14)..
Editor's Note. — Prior to the amendment of 1922 the
words "or because of his employment" appeared at the end
of the first paragraph of this section following the word
"employment." See post, "Compensation from Employer and
Third Person — Subrogation," V.
Amendment Retrospective. — Although the amendatory
act of 1922 striking the words "or because of his employ-
ment," was enacted subsequent to the day of the injury,
the purpose was to clarify by legislation what had only
been held by judicial constructions, and therefore could be
applied in this case. Keen v. Cas. Co., 129 S. E. 174.
What Wilful Acts Excepted. — In Pinkerton, etc., Co. v.
Walker, 30 Ga. App. 94, 117 S. E- 281, the court said: "It
is not the .letter of the Georgia Workmen's compensation
act that all injuries caused by the wilful act of third per-
[
sons shall be excepted from its operation; and, from a read-
ing of the letter of the act, we are safe in saying that the
legislature did not intend to except all injuries caused by
the wilful act of a third person. Had that been the in-
tention, the qualify-phrases, for reasons personal to such
employee,' would not have been used. It was intended
that certain injuries, though inflicted by the wilful act of
a third person, should come, for purposes of compensa-
tion, within the scope of the law. And if the injury here
can be seen to have been a natural incident of the work,
and to have been contemplated by a reasonable person as
a result of the exposure occasioned by the nature of the
employment, it may be said to have arisen out of the em-
ployment, and could be regarded as fairly within the con-
templation of the parties at the time when the contract of
employment was made." See also Keen v. Cas. Co., 129
S. E. 174.
Assaults Not for Reasons Personal to Employee. — Where
a garage employee, while asking instructions from the em-
ployer, was shot by customer of employer, irritated at
employer's refusal to do without further charge, additional
work on car, the injury occurred not only while employee
was engaged in work of employment but also in perform-
ance of ordinary duties, arising ovit of and in course of
employment within this law the assault not being directed
against the employee for reasons personal to him. Keen
v. Cas. Co., 129 S. E. 174.
The exception stated in this section, which excludes "in-
jury caused by a wilful act of a third person directed
against an employee for reasons personal to such employee
did not apply, under the facts of this case, to the homicide
of a detective who was assigned by his employer, a de-
tective agency, to service in a jewelry store for the pur-
pose of protecting it from thefts, and who was in the front
of the store for this purpose, without anything on his per-
son to indicate the nature of his employment when shot
and killed by a thief fleeing with a diamond ring taken
from the store, whom he had just grabbed to prevent the
thief from escaping. Pinkerton Nat. Detective Agency v.
Walker, 30 Ga. App. 91, 117 S. E. 281.
Assault for Personal Reason. — Where a dispute arose be-
tween the employee, a superintendent, and a customer
about a wheel which had been left for repair, and the em-
ployee did some act of violence to the customer, the cus-
tomer leaving the place of business and later returning
with the gun, raised it and killed the employee without
further alteration, the employee was not killed within the
scope of employment under this section, but falls within
the exception, being a wilful act for reasons personal to
employee. High Tower v. Cas. Co., 30 Ga. App. 123, 117 S.
E. 98.
Assault by Fellow- Servant in Dispute Over Master's
Business. — The general rule is that where a servant is in-
jured by a fellow servant in a dispute arising over the con-
duct of the master's, business, the injury will not be held
not to arise out of the employment though it may have
been unjustifiably and wilfully inflicted, whether the
vicious or violent character of the assailant was known or
should have been anticipated by the master. The court did
not undertake to say what should be the rule under the
Georgia act. Holliday v. Merchants, etc., Co., 32 Ga. Apo.
567, 570, 124 S. E- 89.
V. COMPENSATION FROM EMPLOYER AND THIRD
PERSON— SUBROGATION.
Editor's Note — The parts of this section specifically de-
claring that an injured person may have right of action
both against the employer and the third person because
of the injury, and the part providing for subrogation, are
new with the act of 1922.
Prior to that time it was held that such injured person
might bring action against both parties without the amount
for which the employer is liable being reduced by the
amount recovered from the third person, and without sub-
rogation. See Atlanta Coal Corp. v. Wishard, 30 Ga. App.
730, 119 S. E. 429; Rome Ry. Co. v. Jones, 33 Ga. App. 617,
127 S. E- 786.
Of course if the amount recovered against one of the
parties was full compensation for the injury he could not
have recovered against the other. Hotel Equipment Co.
v. Liddell, 32 Ga. App. 594, 124 S. E. 92.
It is not the theory of the workmen's compensation act
to provide full compensation for the value of the life de-
stroyed by negligence or otherwise. In this respect the act
is intended for the protection of employers as well as em-
ployees. The amount recoverable may be for less than the
actual value of the life. (See Athens, etc. v. Kinney, 160
Ga. 1, 5, 127 S. E. 290). But the compensation pro-
vided under this act is similar in character to benefits un
der an insurance policy, and its receipt by an injured em-
14]
§ 3154(3)
WORKMEN'S COMPENSATION ACT
§ 3154(5)
ployee can afford no ground upon which a third person who
wrongfully inflicted the injury should escape liability, either
wholly or in part. Hotel Equipment Co. v. L,iddell, 32 Ga.
App. 590, 124 S. E. 92.
Constitutionality of Amendment. — This amendment does
not violate the constitution, § 6437 prohibiting a law with
more than one subject matter. Athens, etc., Co. v. Kin-
ney, 160 Ga. 1, 127 S. E. 290.
Amount Recoverable from Third Person. — The amendment
does not have the effect of preventing a recovery against a
tort-feasor other than the employer, of a greater amount
than that fixed in the settlement and award which she has
had under the provisions of the Workmen's Compensation
Act. Athens Ry., etc., Co. v. Kinney, 160 Ga. 1, 127 S. E.
290.
(e) In all claims for compensation for hernia re-
sulting from injury by accident arising out of and
in the course of the employee's employment, it
must be definitely proven to the satisfaction of the
Industrial Commission: First, that there was an
injury resulting in hernia; second, that the hernia
appeared suddenly; third, that it was accompanied
by pain; fourth, that the hernia immediately fol-
lowed an accident; fifth, that the hernia did not ex-
ist prior to the accident for which compensation is
claimed. All hernia inguinal, femoral or otherwise,
so proven to be the result of an injury by accident
arising out of and in the course of the employment,
shall be treated in a surgical manner by radical op-
eration. If death results from such operation the
death shall be considered as a result of the injury,
and compensation paid in accordance with the pro-
vision of section 3154(38). In non-fatal cases, time
loss only shall be paid unless it is shown by special
examination, as provided in section 3154(28), that
the injured employee has a permanent partial dis-
ability resulting after the operation. If so, compensa-
tion shall be paid in accordance with the provisions
of section 3154(38) with reference to partial dis-
ability. In case the injured employee refuses to
xindergo the radical operation for the cure of said
hernia, no compensation shall be allowed during
the time such refusal continues. If, however, it is
shown that the employee has some chronic disease,
or is otherwise in such physical condition that the
Commission considers it unsafe for the employee
to undergo said operation, the employee shall be
paid as provided in Section 3154(31). Acts 1920, p.
167; 1922, pp. 185, 190.
Proof of Prior Hernia. — Where, as in this case, the claim
is for a complete strangulated hernia, proof merely that,
prior to the accident from which the complete hernia arose,
the claimant showed a possible sign of a partial hernia a
few inches from the place of the complete hernia, but not
attended by partial or reduced capacity for work, does not
even authorize, much less demand, a finding that the
hernia alleged to have resulted from the accident in ques-
tion really existed. London Guarantee, etc., Co. v. Shock-
ley, 31 Ga. App. 762, 122 S. E. 99.
§ 3154(3). Pending litigation. — The provisions
of this Act shall not effect [affect] pending litiga-
tion. Acts 1920, pp. 167, 171.
§ 3154(4). Exemption; notices to reject. — Everv
employer and employee, except as herein stated,
shall be presumed to have accepted the provisions
of this Act respectively to pay and accept compen-
sation for personal injury or death by accident aris-
ing out of and in the course of the employment, and
shall be bound thereby, unless prior to any accident
resulting in injury or death, notice to the contrary
shall have been given in the manner herein pro-
vided, and in substantially the following form, to-
"wit:
[ 815
Employer's Notice to Reject.
To the Employees of the Undersigned, and the In-
dustrial Commission of Georgia:
You and each of you are hereby notified that the
undersigned rejects the terms, conditions and pro-
visions to provide, secure and pay compensation to
the employees of the undersigned for injuries re-
ceived as provided in that Act of the General As-
sembly of Georgia, known as the Georgia Work-
men's Compensation Act, and elects to pay dam-
ages for personal injuries received by such em-
ployees under the common law and statutes of this
State, as modified by provisions of said Workmen's
Compensation Law.
(Signed)
State of Georgia,
County of
The undersigned being first duly sworn deposes
and says that a true, correct and verbatim copy of
the foregoing notice was, on the. . . .day of
19...., posted at
State Fully Place Where Posted.
Sworn to and subscribed before me this . . . .day
of 19
Notary Public.
Employee's Notice to Reject.
To and Industrial
Name of Employer.
Commissioner of Georgia:
You and each of you are hereby notified that the
undersigned hereby elects to reject the terms, con-
ditions and provisions of an Act of the General As-
sembly of Georgia for the payment of compensa-
tion known as the Georgia Workmen's Compensa-
tion Act, and elects to rely upon the common law,
as modified by statutes of this State and by the pro-
visions of said Act, for the right to recover for any
personal injury which I may receive growing out of
and arising from said employment while in the line
of duty for my employer above named.
Dated this day of 19
(Signed)
State of Georgia,
County of
The undersigned being first duly sworn deposes
and says that the above and foregoing written no-
tice was on the day of 19 . . . . ,
served on the within named employer of the under-
signed by delivering to
State Name of Person Served
a true, correct copy thereof.
day
Sworn to and subscribed before me this
of 19 ....
Notary Public
Acts 1920, pp. 167, 171.
Allowing Amendment Showing Failure to Come Under
Act. — It is proper to allow an amendment to a petition al-
leging that employer employed over 10 men but failed to
elect to come under act. Crutchfield v. Akin, 35 Ga. App.
668, 127 S. E. 816.
§ 3154(5). Waiver of exemption; notices of
waiver. — Either an employer or an employee, who
has exempted himself, by proper notice, from the
operation of this Act, may at any time waive such
exemption and thereby accept the provisions of this
Act by giving notice as herein provided, which no-
§ 3154(5)
WORKMEN'S COMPENSATION ACT
§ 3154(8>
tice of waiver of such exemption shall be substanti-
ally in the following form, to-wit:
Employer's Notice of Waiver of Exemption.
To the Employees of the Undersigned, and the In-
dustrial Commission of Georgia:
You and each of you are hereby notified that the
undersigned hereby waives exemption from the
operation and effect of that Act of the General As-
sembly of Georgia known as the Workmen's Com-
pensation Act, which exemption was heretofore ac-
complished through notice to reject said Act, given
as provided by said Act, on the .... day of
19...., and accepts terms, conditions and provi-
sions to provide, secure and pay compensation to
employees of the undersigned for injuries received
as provided in said Act.
(Signed)
State of Georgia,
County of
The undersigned being first duly sworn deposes
and says that a true, correct and verbatim copy
of the foregoing notice, was on the day of
19 ...., posted at
State Fully Where Posted.
Sworn to and subscribed before me this
day of . . 191
Notary Public.
Employee's Notice to Waive Exemption.
To and Industrial Corn-
Name of Employer,
mission of Georgia:
You and each of you are hereby notified that
the undersigned hereby waives his exemption
from operation and effect of that Act of the Gen-
eral Assembly of Georgia, known as the Georgia
Workmen's Compensation Act, which exemption
was accomplished through notice as provided in
said Act, given on the ....day of 19....,
and accepts the provisions of said Act for the pay-
ment of compensation to employees for personal
injury growing out of and arising from the em-
ployment while in line of duty for my employer
above named.
Dated this .... day of 19 ... .
(Signed)
State of Georgia,
County of
The undersigned being first duly sworn deposes
and says that the above and foregoing notice was
on the day of ".19....,
served on the within named employer of the un-
dersigned by delivering to
Name Person Served.
a true, correct and verbatim copy thereof.
(Signed)
Sworn to and subscribed before me this
day of 19
Notary Public.
The notice to exempt from the operation and
effect of said Act, and the notice of waiver of such
exemption and of acceptance of said Act, in Sec-
tion 3154(4) and in this section respectively re-
ferred to, shall be given, in order to be effective
wifh respect to a particular accident resulting in
injury or death, thirty days prior to such accident,
provided that if any such accident occurred less-
than thirty days after the date of employment, no-
tice of. such exemption or waiver thereof and ac-
ceptance given at the time of employment, shall
be sufficient notice thereof. Any such notice shall
be in writing or printed and in substantially the
appropriate form heretofore set out. Any such
notice referred to in this or the preceding section
of this Act shall be given by the employer by
posting the same in a conspicuous place in the
shop, plant, office, rooms or place where the em-
ployee is employed, or by serving it personally
upon him; and shall be given by the employee by
sending the same in registered letter, addressed
to the employer at his last known residence or
place of business; or by giving it personally to
the employer or any of his agents upon whom a
summons in civil action may be served under the
laws of this State. A copy of any such notice, in
prescribed form, whether given by the employer
or employee, shall be filed with the Industrial
Commission, and unless filed within ten days
from the time when any such notice is served, due
and proper notice shall be deemed not to have
been given. Acts 1920, pp. 167, 172.
§ 3154(6). Contracts of service. — Every con-
tractor [contract] of service between any employer
and employee covered by this Act, written or
implied, now in operation or made or implied
prior to the taking effect of this Act, shall,
after the Act has taken effect, be presumed
to continue subject to the provisions of this
Act, and every such contract made subse-
quent to the taking effect of this Act shall be
presumed to have been made subject to the pro-
visions of this Act, unless either party shall give
notice in the manner provided in Section 3154(5)
to the other party to such contract, that the
provisions of this Act, other than Sections
3154(16), 3154(17) and 3154(18), are not intended
to apply. A like presumption shall exist equally
in the case of all unions [minors], unless notice of
the same character be given by or to the parent or
guardian of the minor, or, in cases where such
minor has no parent or guardian, then by or to
the next kin of said minor, sui juris. Acts 1920,
pp. 167, 175.
Editor's Note. — The words inserted in brackets By the
editor express the obvious legislative intent, though the
words immediately preceding the brackets were used.
§ 3154(7) Relief from obligations. — No con-
tract or agreement, written or implied, no rule,
regulation or other device, shall in any manner
operate to relieve any employer in whole or in
part of any obligation created by this Act, except
as herein otherwise expressly provided. Acts
1920, pp. 167, 175.
§ 3154(8). Provisions not applicable to public
employees. — Neither any municipal corporation
within the State, nor any political subdivision
thereof, nor any employee of any such corpora-
tion or subdivision shall have the right to reject
the provisions of this Act relative to payment
and acceptance of compensation; and the provis-
ions of Sections 3154(5), 3154(6), 3154(16), 3154-
(17) and 3154(18) shall not apply to them. Acts
1920, pp. 167, 176.
[816]
} 3154(9)
WORKMEN'S COMPENSATION ACT
§ 3154(15)
§ 3154(9). Provisions not applicable to inter-
itate carriers. — This Act shall not apply to any
ommon carrier by railroad engaging in com-
nerce between any of the several States or Ter-
itories or between the District of Columbia and
ny of the States or Territories and any foreign
lation or nations, nor to any person suffering
njury or death while he is employed by such
arrier in such commerce, nor shall this Act be
onstrued to lessen the liability of such common
arrier or to diminish or take away in any re-
pect any right that any person so employed or
he personal representative or kindred or relation
I dependant of such person may have under the
let of Congress relating to the liability of com-
rion carriers by railroads to their employees in
ertain cases, approved April 22nd, 1908. Acts
920, pp. 167, 176.
Editor's Note.— It will be seen that this act exempts only
he common carriers by railroad which are engaged in
ommerce between any of the several states or territories
r between the District of Columbia, and any of the states
I territories in any foreign nations. A reference to the
'ederal Employers Liability Act of 1908, will show that it
; applicable only to such carriers and therefore supersedes
he state law only where the railroad and employee are
ngaged in interstate commerce in so far as they cover the
ame field.
§ 3154(10). Act not applicable to prior acci-
[ents.— The provisions of this Act shall not ap-
»ly to injuries or death, nor to accidents which
»ccurred prior to the taking effect of this Act.
lets 1920, pp. 167, 176.
§ 3154(11). Insurance of compensation. — Every
mployer who accepts the compensation pro-
isions of this Act shall insure the payment
»f compensation to his employees in the manner
lereinafter provided, and while such insurance
emains in force he or those conducting his busi-
less shall only be liable to any employee for
personal injury or death by accident to the ex-
ent and in the manner herein specified. Acts
920, pp. 167, 176.
§ 3154(12). Other remedies excluded by Act.
-The rights and remedies herein granted to an
tnployee where he and his employer have ac-
:epted the provisions of this Act respectively to
»ay and accept compensation on account of per-
onal injury or death by accident shall exclude
ill other rights and remedies of such employee,
lis personal representative, parents, dependents
>r next of kin, at common law or otherwise on
iccount of such injury, loss of service or death.
\cts 1920, pp. 167, 176.
Right to Common Law Action. — If the parties to the
•.ontract were otherwise subject to this law, the plaintiff's
>nly redress against the employer would be under it, and
f she had none there because of the particular facts, she
urould not merely for that reason be entitled to maintain
in ordinary suit for damages. Where the act is operative
t is exclusive as between the employee and employer.
Mliday v. Merchants, etc., Co., 32 Ga. App. 567, 570, 124
3. E- 89.
Application to Suit Against Third Person.— Upon a con-
sideration of the language "shall exclude all other rights
ind remedies of such employee, * * * at common law or
Jtherwise," In connection with the entire act, and with re-
gard to the purposes of the act, that provision, while it
excludes "all other rights and remedies of such employee,
lis personal representative," etc., and while the expres-
sion, "all other rights," is general and unqualified by the
mmediate context, it is applicable only to such rights or
remedies as the plaintiff would have had against the em-
ployer of her husband independently of the law embraced
that law. But there is no reason in this law for holding
that as to a third party, who was a tort-feasor and whose
negligence resulted in the death of the husband of the
plaintiff, she should be deprived of her right under the law
allowing her, to sue for and recover the full value of her
husband's life. Athens Ry., etc., Co. v. Kinney, 160 Ga. I,
7, 127 S. E. 290. See § 3154 (2), subsection d.
§ 3154(13). No relief from penalty. — Nothing
in this Act shall be construed to relieve any em-
ployer or employee from penalty for failure or
neglect to perform any statutory duty. Acts
1920, pp. 167, 177.
§ 3154(14). Employee's misconduct. — No com-
pensation shall be allowed for any injury or
death_ due to the employee's wilful misconduct,
including intentional self-inflicted injury, or
growing out of his attempt to injure another, or
due to intoxication or wilful failure or refusal to
use a safety appliance or perform a duty required
by statute, or the wilful breach of any rule or
regulation adopted by the employer and ap-
proved by the Industrial Commission, and
brought prior to the accident to the knowledge
of the employee. The burden of proof shall be
upon him who claims an exemption or forfeiture
under this section. Acts 1920,. pp. 167, 177.
Section Exhaustive of Misconduct Barring Recovery. —
The only conduct of an injured employee that would bar
a recovery for compensation for an injury arising out of
and within the course of the employment is some act of
wilful misconduct on the part of the injured employee,
causing the injury, as provided in § 3154 (14). Martin v.
Georgia Casualty Co., 30 Ga. App. 712, 119 S. E. 337.
Wilful Conduct Not Presumed. — Where an employee,
while riding on the fender of a truck, was thrown off by
the swerving of the truck, caused by the action of th<»
driver, and was killed, although the employee had been
ordered by the driver, with authority from the employer,
not to ride there, the inference is authorized that his death
was caused by negligence of himself or of his employer, and
not by wilful misconduct on his part. Integrity Mutual
Cas. Co. v. Jones, 33 Ga. App. 489, 126 S. E. 876.
Approved of Rules Beyond Scope of Power. — Any rule
governing the safety of money and valuables would not
be approved by the commission, as the commission would
regard these rules as outside the limitations of the act,
as rules governing the safety of money in no way tend to
prevent industrial accidents. Southeastern Exp. Co. v.
Edmondson, 30 Ga. App. 697, 701, 119 S. E. 39.
Effect of Rule Not Approved. — Although at the time of
the injury an employee was riding at a dangerous place on
the fender of the truck, where he had voluntarily placed
himself after having been warned of the danger and al-
though the employer had issued a rule to the effect that
the employees riding upon the truck should not ride in
such position, yet where it does not appear that such rule
had been approved by the industrial commission, the em-
ployee is not barred from a recovery of compensation by
reason of any breach by him of the rule, since such bar
applies only where the rule has the approval of the com-
mission. Integrity Mutual Cas. Co. v. Jones, 33 Ga. App.
489, 126 S. E. 876.
§ 3154(15). Common carriers. — This Act shall
not apply to common carriers, engaged in in-
trastate trade commerce, the motive power of
which is steam, nor shall this Act be construed
to lessen the liability of such common carriers or
to take away or diminish any right that any
employee, or in case of his death, the personal
representative of such employee, of such com-
mon carrier may have, under the laws of this
State; employees not in the usual course of the
trade, business, occupation or profession of the
employer or not incidental thereto; farm labor-
ers or domestic servants; nor to employees of
institutions maintained and operated as public
charities; nor to employers of such persons; nor
jioyer oi ner nusrjana maepenaentiy oi tne iaw emurauai » . . .
n the workmen's compensation act and the provisions oi I to any person,, firm or private corporation,. 111-
[817]
§ 3154(16)
WORKMEN'S COMPENSATION ACT
§ 3154(20)
eluding any public service corporation, that has
regularly in service less than ten employees in
the same business within this State; unless such
employees and their employers voluntarily elect
to be bound by this Act. When an employer
and his employees elect to be bound by this Act
the election shall continue until recalled by joint
action of employer and employees and shall be
effective after notice is given to the Industrial
Commission, and shall include employees sub-
sequently employed, unless they elect to reject
the Act. Acts 1920, pp. 167, 177; 1925, pp. 282,
283.
As to who are employees under this act, see note to §
3154 (2) par. b.
Editor's Note.— By the act of 1925 the words "employees
not in the usual course of the trade, business, occupation
or profession of the employer are not incidental thereto,'
appearing in this section, were substituted for the words
"nor to casual employees" as they appeared prior to the
amendment. The last sentence in this section was also added
by the act of 1925.
Number of Employees Question of Fact. — Whether or not
the defendant employed ten or more men within the pur-
view of the compensation act was a question of fact, to be
determined by the jury; and there was sufficient evidence
to authorize the finding that this requisite number was not
so employed. Critchfield v. Aikin, 33 Ga. App. 668, 127 S.
E. 816.
"Regularly in Service" Construed. — It is not necessary
that an employee work exclusively for his employer, in
order to be "regularly in service," as provided in this sec-
tion. Empire Glass, etc., Co. v. Bussey, 33 Ga. App. 464,
126 S. E. 912.
§ 3154(16). Action against exempted employer.
— -An employer who elects not to operate under
this Act, shall not in any suit at law instituted
by an employee, subject to this Act, to recover
damages for personal injury or death by accident,
be permitted to defend any such suit at law upon
any or all of the following grounds:
(a) That the employee was negligent.
(b) That the injury was caused by the neg-
ligence of a fellow employee.
(c) That the employee had assumed the
risk of the injury. Acts 1920, pp. 167, 177.
As to the effect of the provisions of this section, upon
the prior law, see editor's note under § 3154 (1).
Defenses Not Available Under Act. — The question of
negligence being immaterial under the workmen's compen-
sation act,- and the employer, when he refuses to operate
under that act as well as when the case is brought under
it, being deprived of the defense of negligence of the em-
ployee, or negligence of a fellow servant, or of assumption
of risk, the amended petition was not subject to demurrer
on the ground that it showed that the injury was caused
by the negligence of the plaintiff or of a fellow servant.
Critchfield v. Aikin, 33 Ga. App. 668, 127 S. E. 816.
Object to Get Away from Common Law. — "One of the
main objects of the workmen's compensation act was to
enable an injured employee to recover from an employer
when, of course, he comes under the act, according to a
scheduled and limited j;ate of compensation, regardless of
assumption of risk or of whose negligence caused the in-
jury; thus assuring the employee of some compensation
for the injury and assuring the employer that his liability
will be limited." Critchfield v. Aikin, 33 Ga. App. 668, 672,
127 S. E- 816.
Alleging Failure to Operate Under Act. — An amendment
to a petition alleging that the defendant had "in his regu-
lar employ in said plant and business * * * more than 10
men, and -was not operating under the workmen's com-
pensation act," was properlv allowed. Critchfield v. Aikin,
33 Ga. App. 668, 127 S. E. 816.
Necessity of Making Common Law Case. — "The plaintiff,
in order to have a cause of action under the workmen's
compensation act, or where the employer refuses to operate
under the act, need not have a cause of action under the
laws applicable where the workmen's compensation act is
not involved; and to hold that a petition under this act
must set out a cause of action under the laws pertaining
to negligence would defeat the very object of the act."
Critchfield v. Aikin, 33 Ga. App. 668, 672, 127 S. E. 816.
§ 3154(17). Action of exempted employee. —
An employee who elects not to operate under
this Act shall, in any action to recover damages
for personal injury or death brought against an
employer accepting the compensation provisions
of this Act, proceed at common law, and the
employer may avail himself of the defenses of
contributory negligence, negligence of a fellow
servant and assumption of risk, as such defenses
exist at common law. Acts 1920, pp. 167, 178.
As to the effect of this section upon prior law, see edi-
tor's note under § 3154 (1).
§ 3154(18). Action when both employer and
employee are exempt. — When both the employer
and employee elect not to operate under this Act,
the liability of the employer shall be the same as
though he- alone rejected the terms of this Act,
and in any suit brought against him by such em-
ployee the employer shall not be permitted to avail
himself of any of the common law defenses cited
in Section 3154(16). Acts 1920, pp. 167, 178.
§ 3154(19). Settlements encouraged. — Nothing
herein contained shall be construed so as to pre-
vent settlements made by and between the em-
ployee and employer, but rather to encourage
them, so long as the amount of compensation
and the time, and manner of payment are in
accordance with the provisions of this Act. A
copy of such settlement agreement shall be filed,
by the employer, with the Commission and no
such settlement shall be binding until approved
by the Commission. Acts 1920, pp. 167, 178.
§ 3154(20). Contractor, when liable; recovery.
A principal, intermediate or subcontractor shall
be liable for compensation to any employee in-
jured while in the employ of his subcontractors
and engaged upon the subject matter of the con-
tract to the same extent as the immediate em-
ployer.
Any principal, intermediate or subcontractor
who shall pay compensation under the foregoing
provisions may recover the amount paid from
any person who, independently of this section,
would have been liable to pay compensation to
the injured employee," or from any intermediate
contractor.
Every claim for compensation under this sec-
tion shall be in the first instance presented to
and instituted against the immediate employer,
but such proceedings shall not constitute a
waiver of the emplo3^ee's rights to recover com-
pensation under this Act from the principal or
intermediate contractor, provided that the col-
lection of full compensation from one employer
shall bar recovery by the employee against any
others, nor shall he collect from all a total com-
pensation in excess of the amount for which any
of said contractors is liable.
This section shall apply only in cases where
the injury occurred on, in or about the premises
on which the principal contractor has under-
taken to execute work or which are otherwise
under his control or management. Acts 1920,
pp. 167, 178.
As to who are employers generally, see § 3154 (2), i
par. (a).
Employees of Independent Contractor. — Where one is in-
jured under the employment of an independent contractor,
[818]
3154(21)
WORKMEN'S COMPENSATION ACT
§ 3154(26)
he person for whom the independent contractor is doing
he work is not liable as an employer of the employee of
he independent contractor in the absence of an express
:ontractor to that effect. And such person is not liable
or the injury to the employee of such independent con-
ractor. U. S. Fid. & Guar. Co. v. Corbett, 31 Ga. App.
( 119 S. E. 921. See Davis v. Menefee, 129 S. E. 527, for
:ase where one held not independent contractor, but a co-
:mployee.
§ 3154(21). Priority of claims. — All rights of
:ompensation granted by this Act shall have the
:ame preference or priority for the whole there-
>f against the assets of the employer as is al-
owecl by law for any unpaid wages for labor.
\cts 1920, pp. 167, 179.
§ 3154(22). Claims not assignable. — No claim
or compensation under this Act shall be assign-
tble, and all compensation and claims therefor
hall be exempt from all claims of creditors. Acts
920, pp. 167, 179.
§ 3154(23). Notice of accident or injury by
:mployee. — Every injured employee or his rep-
esentative shall immediately on the occurrence
>f any accident, or as soon thereafter as practic-
tble, give or cause to be given to the employer,
lis agent, representative, foreman, or the imrae-
liate superior of the injured employee, a notice
)f the accident. This notice shall be given by
he employee, either in person or by his repre-
entative, and until such notice is given the
:mployee shall not be entitled to any physician's
ees nor to any compensation which may have
tccrued under the terms of this Act prior to the
jiving of such notice. In the event a notice has
lot been given within thirty days after the acci-
lent, either in person by the employee or his
•epresentative, to the employer, his agent, repre-
sentative, foreman, or the immediate superior of
he injured employee, a written notice must be
Byen. This written notice will not be required
vhere an injured employee or his representative
las given notice in person to the employer, his
igent, representative, foreman, or the immediate
superior of the injured employee. No compen-
sation will be payable unless such notice, either
Dral or written, is given within thirty days after
.he occurrence of an accident or within thirty
lays after death resulting from an accident, un-
ess it can be shown that the employee had been
prevented from doing so by reason of physical or
mental incapacity or by fraud or deceit, or that
:he employer, his agent, representative, foreman,
:>r the immediate superior of the injured em-
ployee had knowledge of the accident, or unless
i reasonable excuse is made to the satisfaction
3f the commission for not giving such notice,
and it is reasonably proved to the satisfaction of
the commission that the employer had not been
prejudiced thereby. Acts 1920, pp. 167, 180;
1923, pp. 92, 93.
Editor's Note. — The provisions of this section that writ-
ten notice of the accident is not required where employer
has knowledge of the accident and that knowledge on the
part of the employer, as his agent, representative, or fore-
man, or immediate superior of the employer will be knowl-
edge on the part of the employer, were added by the
amendment of 1923.
When Lack of Notice Immaterial. — Where commission's
finding that injury did not grow out of course of employ-
ment was proper and was not influenced by its finding that
there was a lack of the notice required by this section.
The order denying compensation will be sustained irre-
[8
spective of any error affecting the finding that there was a
lack of notice. Cas. Co. v. England, 129 S. E. 446.
Actual Notice to Foreman Sufficient. — Under this sec-
tion, a foreman in charge of the special work in which the
employee is engaged is an "agent" or "representative"
within the meaning of said section, whose knowledge of an
accident, derived from the employee, within a day or two
thereafter, makes written notice by the employee within
thirty days, as provided by the act, unnecessary. Van
Treeck v. Travelers Ins. Co., 157 Ga. 204, 121 S. E. 215.
Giving of Notice Question of Fact. — Where the commis-
sion finds as a matter of fact that an agent or representa-
tive of an employer has actual notice of an injury to an
employee it is error for the superior court to reverse such
holding upon the grounds that no written notice was given.
Van Treeck v. Ins. Co., 31 Ga. App. 603, 121 S. E. 584.
§ 3154(24). Contents of notice; defect; deliv-
ery.— The written notice provided in the forego-
ing section shall state in ordinary language the
name, and address of the employee, the time,
place, nature and cause of the accident and of
the resulting injury or death, and shall be signed
by the employee or by a person in his behalf, or
in the event. of his death by any one or more of
his dependents or by a person in their behalf.
No defect or inaccuracy in the notice shall be a
bar to compensation unless the employer shall
prove that his interest was prejudiced thereby,
and then only to such extent as the prejudice.
Said notice shall be given personally to the em-
ployer, or his agent, representative, foreman, or
immediate superior of the injured employee, or
may be sent by registered letter addressed to
the employer at his last known residence or
place of business. Acts 1920, pp. 167, 180; 1923,
pp. 92, 94.
Editor's Note. — The amendment of 1923 changed this sec-
tion to correspond with § 3154 (23) as amended by the
same act.
§ 3154(25). Time of filing claim.— The right
to compensation under this Act shall be forever
barred, unless a claim be filed with the Industrial
Commission within one year after the accident,
and, if death results from the accident, unless a
claim therefor is filed with the Commission with-
in one year thereafter; except that if a claimant
proceeds in good faith against a corporation, the
charter of which had expired, but which was still
doing business, he shall have the right to then
proceed against the person or persons operating
under the corporate name, and the one year limit
shall not apply. Acts 1920, pp. 167, 181; 1925,
pp. 282, 284.
Editor's Note. — The exception appearing at the end of
this section beginning after the word "thereafter" was
added by the amendment of 1925.
Application to Review of Award. — The provisions of this
section to the effect that the right to compensation should
be forever barred unless a claim be filed with the com-
mission within one year after the accident, has no applica-
tion where the employee is seeking a review of an award
of settlement under § 3154 (45). Cas. Co. v. Smith, 129 S.
E. 880.
§ 3154(26). Medical attention; failure to pro-
vide.— For a period of not exceeding thirty days
after an accident the employer shall furnish or
cause to be furnished free of charge to the in-
jured employee, and the employee shall accept
such necessary medical attention as the nature
of the accident may require. The Industrial
Commission may at any time, for good cause
shown or in its discretion, order a change in such
medical attentions so furnished by the employer.
Provided, that the total liability of the employer
for necessary medical attention shall not exceed
19]
§ 3154(27)
WORKMEN'S COMPENSATION ACT
§ 3154(30)
$100.00. During the whole or any part of the
remainder of disability resulting from the in-
jury, the employer may, at his own option, con-
tinue to furnish or cause to be furnished, free of
charge to the employee, and the employee shall
accept, an attending physician unless otherwise
ordered by the Industrial Commission, and in
addition such surgical and hospital service and
supplies as may be deemed necessary by said at-
tending physician or the Industrial Commission.
The refusal of the employee to accept any medi-
cal, hospital or surgical service when provided
by the employer, or on order by the Industrial
Commission, shall bar said employee from fur-
ther compensation until such refusal ceases, and
no compensation shall at any time be paid for
the period of suspension unless in the opinion of
the Industrial Commission the circumstances
justified the refusal, in which case the Industrial
Commission may order a change in the medical
or hospital service. If in an emergency on ac-
count of the employer's failure to provide the
medical care during the first thirty days, as here-
in specified a physician other than provided by
the employer is called to treat the injured em-
ployee, during the first thirty days, the reason-
able cost of such service, not to exceed $100.00
as above set out, shall be paid by the employer
if ordered to do so by the Industrial Commis-
sion, Acts 1920, pp. 167, 181.
When Allowance of Expenses Unauthorized. — In a com-
pensation case, where the undisputed evidence shows there
is no medical expenses and that funeral expenses are paid
by employer, award of such expenses is unauthorized. Cas.
Co. v. Taylor, 129 S. E. 1.
§ 3154(27). Liability for medical attention lim-
ited.— The pecuniary liability of the employer
for medical, surgical and hospital service herein
required when ordered by the Commission shall
be limited to such charges as prevail in the same
community for similar treatment of injured per-
sons of a like standard of living when such treat-
ment is paid for by the injured persons, and shall
not, in any event, exceed the aggregate of $100.-
00 in amount. The employer shall not be liable
in damages for malpractice by a physician or
surgeon furnished by him pursuant to the pro-
visions of this section, but the consequences of
any such malpractice shall be deemed part of the
injury resulting from the accident and shall be
compensated for as such. Acts 1920, pp. 167,
182.
§ 3154(28). Physical examination; refusal to
submit to treatment. — After an injury and so
long as he* claims compensation, the employee, if
so requested by his employer, shall submit him-
self to examination, at reasonable times and
places, by a duly qualified physician or surgeon
designated and paid by the employer or the In-
dustrial Commission. The employee shall have
the right to have present at such examination
any duly qualified physician or surgeon provided
and paid by him. No fact communicated to, or
otherwise learned by any physician or surgeon
who may have attended or examined the em-
ployee, or who may have been present at any
such examination, shall be privileged, either in
hearings provided for by this Act, or in any ac-
tion at law brought to recover damages against
any employer who may have accepted the com-
pensation provisions of this Act. If the em-
ployee refuses to submit himself to or in any
way obstructs such examination requested and
provided for by the employer, his right to com-
pensation and his right to take or prosecute any
proceedings under this Act shall be suspended
until such refusal or objection ceases, and no
compensation shall at any time be payable for
the period of suspension unless in the opinion of
the Industrial Commission the circumstances
justify the refusal or obstruction. The employer,
or the Industrial Commission, shall have the
right in any case of death to require an autopsy
at the expense of the party requesting the same.
No compensation shall be payable for the death
or disability of an employee if his death be
caused by, or in so far as his disability may be
aggravated, caused or continued by an unreason-
able refusal or neglect to submit to or follow any
competent or reasonable surgical treatment.
Acts 1920, pp. 167, 182.
§ 3154(29). Period of incapacity. — No compen-
sation shall be allowed for the first seven calen-
dar days of incapacity resulting from an injury,
including the day of the injury, except the bene-
fits provided for in section 3154(26)'. Acts 1920,
pp. 167, 183; 1922, p. 190.
Editor's Note The acts of 1922 amended this section so
as to provide a seven day waiting period.
§ 3154(30). .Total incapacity. — When the in-
capacity from work resulting from an injury is
total, the employee shall pay, or cause to be paid
as hereinafter provided for the employee during
such total incapacity, a weekly compensation
equal to one-half of his average wages, but not
more than fifteen dollars per week or less than
four dollars per week, except when the weekly
wage is below four dollars, then the regular
wages on the date of the accident shall be the
weekly amount paid; and in no case shall the
period covered by such compensation be greater
than 350 weeks nor shall the total amount of
compensation exceed $5,000.00. Acts 1920, pp.
167, 183; 1922, p. 190.
Cross References. — As to compensation not being based
upon value of life, see note to § 3154 (2), par. (c). As to
necessity of employee receiving some wage, see § 3154 (2),
par. (c).
Editor's Note.— This section was amended by the acts of
1922 to increase the maximum compensation to $15.00 a
week, and the minimum to $4.00 a week, except where the i
weekly wage is less than that amount in which case it
should be the amount of the wage, and to increase the
maximum amount of compensation payable to $5000.
Scope of Section. — This section covers all total incapa-
cities, whether permanent or temporary, except total in-
capacity arising from the loss of one of the members enu-
merated in § 3154 (32); in such case that section is ex-
clusively applicable. Ga. Cas. Co. v. Jones, 156 Ga. 664,
119 S. K. 721; 31 Ga. App. 196, 120 S. E. 358, overruling
same case in 30 Ga. App. 207, 117 S. E. 467.
The "capacity" with which the law is concerned is
"earning capacity." Austin Bros. Bridge Co. v. Whit-
mire, 31 Ga. App. 560, 121 S. E- 345.
Total Incapacity Defined. — Incapacity for work resulting
from an injury is total, not only so long as the injured em-
ployee is unable to do any work of any character, but also
while he remains unable, as a result of his injury, either
to resume his former occupation or to procure remunerative
employment at a different occupation suitable to his im-
paired capacity. Austin Bros. Bridge Co. v. Whitmire,
31 Ga. 560, 121 S. E. 345.
Partial Capacity Defined. — A period of total incapacity
may be followed by a period of partial incapacity, during
which the injured employee is able both to procure and to
perform work at some occupation suitable to his then-ex-
[ 820]
§ 3154(31)
WORKMEN'S COMPENSATION ACT
§ 3154(32)
isting capacity, but less remunerative than the work in
which he was engaged at the time of his injury. That
situation constitutes partial incapacity. Austin Bros.
Bridge Co. v. Whitmire, 31 Ga. 560, 121 S. E. 345.
When Partial Incapacity Terminated. — Except as specif-
ically provided in § 3154 (32) of the act, such partial in-
capacity terminates when the employee agjain becomes
:apable of earning the same wage he earned before his in-
jury, whether at the same or at a different occupation, and
without regard to such personal inconveniences as may re-
sult to him solely from his injury and which are not
;aused or aggravated by his new employment. Austin
Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S. E-
545.
How Amounts Determined. — The amounts of compensa-
tion allowed an injured employee coming within the terms
jf this act, the periods for which such compensation is al-
lowed, and the conditions upon which it may be increased,
iiminished, or suspended altogether are determined by the
provisions of this section and §§ 3154 (31), 3154 (32) and
5154 (33). Austin Bros. Bridge Co. v. Whitmire, 31 Ga.
A.pp. 560, 121 S. E. 345.
§ 3154(31). Partial incapacity; compensation;
imit. — Except as otherwise provided in the
lext section hereafter, when the incapacity for
vork resulting from the injury is partial, the em-
ployer shall pay, or cause to be paid, as herein-
ifter provided, to the injured employee during
>uch incapacity, a weekly compensation equal to
me-half the difference between his average
vcekly wages before the injury and the average
vveekly wages which he is able to earn thereafter,
>ut not more than twelve dollars a week, and in
16 case shall the period covered by such com-
pensation be greater than three hundred weeks
from the date of the injury. In case the partial
incapacity begins after a period of total incapac-
ity, the latter period shall be deducted from the
maximum period herein allowed for partial in-
capacity. Acts 1920, pp. 167, 183.
Cross References. — As to effect of refusing employment
in case of partial incapacity, see § 3154 (33). As to nec-
essity of employee receiving some wage, see § 3154 (2),
par. (c).
Scope of Section. — This section provides for compensation
in cases of partial incapacity, whether temporary or per-
manent, in all cases unless such incapacity is caused by
the loss of one of the members of the body enumerated in
§ 3154 (_32) ; in such case that section applies exclusively.
Ga. Cas. Co. v. Jones, 156 Ga. 664, 119 S. E- 721; 31 Ga.
A.pp. 196, 120 S. E- 358, overruling same case in 30 Ga. App.
207, 117 S. E. 467.
When Entitled to Compensation Under This Section. —
For the period of total disability, whether resulting from
injuries specifically mentioned in § 3154 (32) or from in-
juries covered only by § 3154 (31), the employee is en-
titled to the compensation provided by this section. Austin
Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S. E-
345.
This Section Construed with Following Section. — For the
succeeding period of partial disability, if resulting solely
from one or more of the injuries specifically mentioned in
§ 3154 (32), the compensation must be as prescribed by
§ 3154 (32), and not otherwise; but if such partial disability
results solely from such injuries as are covered only by
this section, then the compensation must be as provided
by this section; if, however, such partial disability re-
sults ^ in part from injuries described only in this section,
and in part from injuries specifically mentioned in § 3154
(32), then the aggregate compensation is that allowed by
the act for both classes of injuries, the amount allowed
for each injury being dependent upon the section of the act
providing for it and the aggregate amount being kept
within the maximum allowed by the statute. Austin Bros.
Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S. E- 345.
Effect of Pain and Suffering While Working.— With the
exceptions indicated in this section, the act fails to provide
for compensation in cases of partial incapacity, except
where the average weekly wages after the injury are less
than those prior thereto. There is no recognition of the
elements of pain and suffering, or of increased discom-
fort and difficulty in performing the labors for which wages
are paid after the injury; and as long as the average of
these remain the same or more than those previously re-
ceived, the law allows no compensation through the ma-
chinery of the industrial commission. American, etc., Ins.
Co. v. Hampton, 33 Ga. App. 476, 127 S. E. 155.
§ 3154(32). Compensation payments. — In the
cases included by the following schedule the per-
manent partial industrial handicap, in each case,
shall be compensated by payments for the period
specified, and the compensation so paid for such
handicap shall be as specified therein, and shall
be in lieu of all other compensation for the per-
manent partial handicap. In addition to the com-
pensation provided in the schedule for perma-
nent partial handicap, compensation for total
incapacity for work, as provided in Section 3154-
(30), shall be paid, but compensation for total
incapacity for work shall in no case be paid for a
period longer than ten weeks.
(a) For the loss of a thumb, fifty per centum
of the average weekly wages during thirty weeks.
(b) For the loss of a first finger, commonly
called the index finger, fifty per centum of the
average weekly wages during thirty-five weeks.
(c) For the loss of a second finger, fifty per
centum of the average weekly wages during
thirty weeks.
(d) For the loss of a third finger, fifty per
centum of the average weekly wages during
twenty weeks.
(e) For the loss of a fourth finger, commonly
called the little finger, fifty per centum of average
weekly wages during fifteen weeks.
(f) The loss of the first phalange of the thumb
or any finger shall be considered to be equal to
the loss of one-half of such thumb or finger, and
the compensation shall be for one-half of the
periods of time above specified.
(g) The loss of more than one phalange shall
be considered the loss of the entire finger or
thumb; provided that in no case shall the amount
received for one finger exceed the amount pro-
vided in this schedule for the loss of a hand.
(h) For the loss of a great toe, fifty per
centum of the average weekly wages during
thirty weeks.
(i) For the loss of one of the toes other than
a great toe, fifty per centum of the average
weekly wages during ten weeks.
(j) The loss of the first phalange of any toe
shall be considered to be equal to the loss of one-
half of such toe, and the compensation shall be
for one-half of the periods of time above speci-
fied.
(k) The loss of more than one phalange shall
be considered as the loss of the entire toe.
(1) For the loss of a hand, fifty per centum of
the average weekly wages during one hundred
and fifty weeks.
(m) For the loss of an arm, fifty per centum
of the average weekly wages during two hun-
dred weeks.
(n) For the loss of a foot, fifty per centum of
the average weekl}^ wages during one hundred
and twenty-five weeks.
(o) For the loss of a leg, fifty per centum of
average weekly wages during one hundred and
seventy-five weeks.
(p) For the loss of an eye, fifty per centum of
[821]
§ 3154(33)
WORKMEN'S COMPENSATION ACT
§ 3154(38)
the average weekly wages during one hundred
weeks.
(q) For the complete loss of hearing in both
ears, fifty per centum of average weekly wages
during one hundred and fifty weeks.
(r) Total loss of use of a member or loss of
vision of an eye, shall be considered as equiva-
lent to the loss of such member or eye. The
compensation for partial loss of or for partial
loss of use of a member or for partial loss of
vision of an eye shall be such proportion of the
payments above prescribed for total loss as such
partial loss bears to total loss. Loss of both
arms, hands, legs or feet, or of any two of these
members, the permanent total loss of vision in
both eyes, shall be deemed permanent total in-
capacity and shall be compensated under Section
3154(30).
The weekly compensation payments referred
to in this section shall be subject to the same
limitations as to maximum and minimum as set
out in Section 3154(30). Acts 1920, pp. 167,184;
1923, pp. 92, 95.
As to effect of refusing employment in case of partial
disability, see § 3154 (33).
Editor's Note — This section was amended in 1923 to pro-
vide compensation for temporary total disability for ten
weeks where the injury resulted in the loss of or loss of use
of one of the members specified in this section.
Compensation Hereunder Bars Right Under Other Sec-
tions for Same Injury. — When compensation is allowed un-
der this section, it is barred under the two preceding sec-
tions for the same injury. Ga. Cas. Co. v. Jones, 156 Ga.
664, 119 S. E. 721, 31 Ga. App. 196, 120 S. E. 358, overrulling
the same case in 30 Ga. App. 207, 117 S. E- 467.
Compensation for Disability from Other Cause. — See
note under § 3154 (31).
While not deciding the question, the court stated in Ga.
Cas. Co. v. Jones, 156 Ga. 667, 119 S. E- 721, that it might
be, that, if one of the specific injuries herein named
should be accompanied or followed by a partial, permanent,
or temporary disability due to some other cause, such as
infection or paralysis, and not to the loss of such member,
whereby a superadded injury follows, the employee would
be entitled to additional compensation, citing Stiffen v. Red
Star Mill, etc., Co., 106 Kan. 369, 187 Pac. 861.
Loss of Hearing in One Ear. — While § 32 (q) of the act
just referred to provides that compensation shall be paid
'for the complete loss of hearing in both ears,' there is no
express provision in the act for the loss of hearing in one
ear. Travelers Ins. Co. v. Ablin, 33 Ga. App. 666, 668, 127
S. E. 804.
The word "member" does not embrace the ear. Travelers
Ins. Co. v. Albin, 33 Ga. App. 666, 127 S. E. 804.
§ 3154(33). Refusal of employment. — If an in-
jured employee refuses employment procured for
him suitable to his capacity, he shall not be en-
titled to any compensation at any time during
the continuance of such refusal, unless in the
opinion of the Industrial Commission such re-
fusal was justified. Acts 1920, pp. 167, 186.
Duty to Find Employment— Effect of Justifiable Refusal
to Work. — It is the duty of a partially injured employee
to endeavor to obtain employment for himself; but, be-
fore such apparent capacity to work can operate either to
suspend his compensation or to terminate his period of
total incapacity, it must be made to appear that such em-
ployment has been procured for him and that he has un-
justifiably refused to accept it. Austin Bros. Bridge Co.
v. Whitmire, 31 Ga. App. 560, 121 S. E. 345.
The mere refusal of an employee to continue in the em-
ployment of the employer after having received an injury
does not, under this section, bar him from compensation.
Empire Glass, etc., Co. v. Bussey, 33 Ga. App. 464, 126 S.
E. 912.
§ 3154(34). Injuries not specified in section
3154(32). — If an employee who suffers an injury
in his employment has a permanent disability or
has sustained a permanent injury, such as speci-
fied in Section 3154(32), suffered elsewhere, he
shall be entitled to compensation only for the de-
gree of incapacity which would have resulted
from the later accident if the early disability or
injury had not existed. Acts 1920, pp. 167, 186.
§ 3154(35). Two injuries. — If an employee re-
ceives an injury for which compensation is pay-
able, while he is still receiving or entitled to
compensation for a previous injury in the same
employment, he shall not at the same time be en-
titled to compensation for both injuries, unless
the later injury be a permanent injury, such as
specified in Section 3154(32); but he shall be
entitled to compensation for that injury and
from the time of that injury which will cover the
longe'st period and the largest amount payable
under this Act. Acts 1920, pp. 167, 186.
§ 3154(36). Two permanent injuries. — If an
employee receives a permanent injury as speci-
fied in Section 3154(32) after having sustained
another permanent injury in the same employ-
ment, he shall be entitled to compensation for
both injuries, but the total compensation shall be
paid by extending the period and not by increas-
ing the amount of weekly compensation, and in
no case exceeding three hundred and fifty weeks.
When the previous and subsequent permanent
injuries received in the same employment result
in total disability, compensation shall be payable
for permanent total disability, but payments
made for the previous injury shall be deducted
from the total payment of compensation - due.
Acts 1920, pp. 167, 187.
§ 3154(37). Accidents outside of State.— (a)
Where an accident happens while the employee
is employed elsewhere than in this State, which
would entitle him or his dependents to compensa-
tion if it had happened in this State, the employee
or his dependents shall be entitled to compensa-
tion, if the contract of employment was made in
this State, and if the employer's place of business
is in this State, or if the residence of the employee
is in this State; provided his contract for em-
ployment was not expressly for service exclu-
sively outside of the State, (b) Provided, how-
ever, if an employee shall receive compensation!
or damages under the laws of any other State,
nothing herein contained shall be construed sol
as to permit a total compensation for the same
injury greater than is provided for in this Act.
Acts 1920, pp. 167, 187.
Section Applied. — In view of this section, an objection toi
an award for an injury while in another State, upon the I
ground that the employment,, being without the State, does
not come within the act, is without merit; and since the!
constitutionality of this provision of the compensation act!
is not questioned, an objection to the award upon thej
ground that the award was for an interstate employment!
is without merit. Empire Glass, etc., Co. v. Bussey, 35 j
Ga. App. 464, 126 S. E. 912.
§ 3154(38). Death; funeral; dependents. — j
When an employee is entitled to compensation!
under this Act for an injury received, and death t
ensues from any cause not resulting from the!
injury for which he was entitled to the compen-J
sation, payments of the unpaid balance for such,
injury shall cease and all liability therefor shal
terminate.
If death results instantlv from an accident
[ 822 ]
\ 3154(38)
WORKMEN'S COMPENSATION ACT
§ 3154(39)
irising out of and in the course of the employ-
pent, or if during the period of disability caused
>y an accident death results proximately there-
rom, the compensation under this Act shall be
is follows:
Editor's Note.— The second paragraph in this section as
t now appears was enacted in 1922. Prior to then the pro-
vision relating to instant death was not included. The pur-
lose of the amendment seems to have been to clarify this
•aragraph.
(a) The employer, shall, in addition to any
>ther compensation, pay the reasonable expenses
»f the employees' last sickness and burial ex-
tenses not to exceed $100.00. If the employee
eaves no dependents, this shall be the only com-
»ensation.
(b) The employer shall pay the dependents of
he deceased employee wholly dependent on his
:arnings for support at the time of the injury a
veekly compensation equal to 85 per cent of the
ompensation which is provided for in § 3154(30)
or total disability for a period not exceeding 300
veeks from date of injury.
Editor's Note. — Before the amendment of 1922 this para-
graph of this section provided that rate of compensation
hould be one half the average weekly wage, but in no
ase should it be more than $10 nor less than $5 per week,
or a period of 300 weeks. That amendment changed it to
he form in which it now appears.
Manner of Determining Dependency. — In view of this
ection, as amended in 1922, and the following section a
luestion of dependency is one of facts to be determined
rom the amounts, frequency, and continuity of actual con-
ributions of cash or supplies, needs of claimant, and legal
>r moral obligation of employee. Cas. Co. v. Campbell,
29 S. E. 447.
While dependency must have actually existed at time of
xcident and three months prior thereto, physical contribu-
ions of cash or supplies are only evidential of such de-
tendency, and the fact that they were temporarily
nterrupted by unemployment, or some other cause in-
lependent of will and desire of employee and were not
nade continuously for three months immediately preced-
ng injury, will not necessarily negative dependency where
ither evidence showed such dependency. The evidence in
his case was sufficient to show dependency of mother on
;on. Cas. Co. v. Campbell, 129 S. E. 447.
(c) If the employee leaves dependents only
)artially dependent on his earnings for support
it the time of his injury, the weekly compensa-
ion for those dependent shall be in the same
>roportion to the compensation for persons
vholly dependent as the average amount con-
xibuted weekly by the deceased to the partial
lependents bears to his average weekly wages
it the time of his injury.
Editor's Note. — The act of 1922 amended this paragraph
)f this section by striking the old provision and substitut-
ng therefor the provisions as they now appear. See the
jaragraph immediately following in this note.
The method of computation before the amendment of 1922
was that: the weekly compensation awarded would be to
:he sum which would have been awarded had the depend-
ents been totally dependent as the amount of the weekly
:ontribution which had been made by the deceased to the
partial dependents was to the amount representing the
total dependency at the time of the injury. Aetna Life
ms. Co. v. Smith, 29 Ga. App. 628, 116 S. E. 322.
"Total dependency," as used in this section befcfre amend
ment of 1922, means the total amount contributed to the
support of the dependents of the deceased employee from
ill sources, including the contribution made by the de-
ceased employee. Aetna Life Ins. Co. v. Smith, 29 Ga.
App. 628, 116 S. E. 322.
Amount Not Affected by Contributions Made by Others.
—Under this section the compensation to partial depend-
ents shall be in the same proportion to the compensation
for persons wholly dependent that the contribution by the
deceased employee bears to his average weekly wages, ir*
respective of contributions made to the claimants by another
or others upon whom they are also partially dependent.
Maryland Cas. Co. v. Bess, 33 Ga. App. 798, 127 S. E. 828.
Deduction of Employee's Living Expenses. — Where an
employee nineteen years of age lived in his father's house-
hold as a member of the family, all of whom were depend-
ent upon his earnings for a support, and his earnings were
contributed to that cause, the cost of his own maintenance
as a member of the family was not to be considered in de-
termining the amount of compensation to be awarded upon
the claim of the fdther, under the workmen's compensa-
tion act, made in behalf of himself, his wife, and other
members of Ihe family, as dependents. Maryland Cas. Co.
v. Bess, 33 Ga. App. 798, 127 S. E. 828.
Effect of False Testimony as to Contribution.— Where the
commission on sufficient evidence found it was impossible
for a deceased employee to have contributed $1.00 per day
to dependent, and where it was warranted in finding that
his testimony, though corroborated by another witness was
either true or knowingly false, it was authorized, under §§
5583, 5584, to discard his evidence and in absence of unim-
peached evidence, refuse claim. Fid. Co. v. Hall, 129 S-
E. 305.
When Award Equals Amount of Total Dependancy. — Un-
der this section where the deceased employee contributed
his entire wages to persons who were partially dependent
upon him there is no difference between the amount of
compensation to be awarded and that which the claimants
should receive as total dependents. Maryland Cas. Co. v.
Bess, 33 Ga. App. 798, 127 S. E. 828.
Awards Held Reasonable. — An award of $3.91 per week
for 300 weeks to the mother of a deceased employee in this
case was authorized by this section and § 3154 (30). Cas.
Co. v. Campbell, 129 S. E- 477.
The judgment of the industrial commissioner, sustained
by the commission as a whole and by the judge of the
superior court on appeal, allowing $4.75 weekly for partial
dependency, appears to have been painstakingly arrived at,
and is sustainable under several theories of the evidence.
Cas. Co. v. James, 32 Ga. App. 99, 122 S. E. 651.
(d) When weekly payments have been made to
an injured employee before his death, the compen-
sation to dependents shall begin on the date
of last of such payments, but shall not con-
tinue more than 300 weeks from the date of
the injury, nor except during dependency. The
total compensation to be paid to all dependent
of a deceased employee shall not exceed in the
aggregate $12.75 per week.
Editor's Note — It would seem that it was intended to
use either "dependents of" or "dependent on" rather than
"dependent of" in the last sentence of this subsection.
This section was amended by the acts of 1922, to provide
an increase in compensation to a maximum of $12.75 per
week.
(e) If the employee does not leave dependents,
citizens of or residing at the time of the accident
in the United States or Dominion of Canada, the
amount of compensation shall not in any case
exceed $1,000.00. Acts 1920, pp. 167, 187; 1922,
pp. 190, 191, 192; 1923, pp. 92, 95.
§ 3154(39). List of dependents; termination of
dependence. — The compensation provided for in
Section 3154(38) shall be payable only to depen-
dents and only during dependency. The follow-
ing persons shall be conclusively persumed to be
the next of kin wholly dependent for support
upon the deceased employee:
(a) A wife upon a husband whom she had not
voluntarily deserted or abandoned at time of the
accident.
(b) A husband upon a wife with whom he
lived at the time of her accident if he is then in-
capable of self-support and actually dependent
upon her.
(c) A boy under the age of eighteen, or a girl
under the age of eighteen upon a parent. If a
child is over the age specified above, but physi-
cally or mentally incapacitated from earning a
[ 823 ]
§ 3154(40)
WORKMEN'S COMPENSATION ACT
§ 3154(45)
livelihood, he or she shall be presumed to be
totally dependent.
As used in this section, the term "boy," "girl,"
or "child" shall include stepchild, legally adopted
children, posthumous children, acknowledged il-
legitimate children, but shall not include married
children; the term "parent" shall include step-
parents and parents by adoption.
If the deceased employee leaves dependent
surviving spouse, as above described, and no
dependent child or children, the full compensa-
tion shall be paid to such spouse; if the deceased
employee leaves a dependent surviving spouse,
as above described, and also a dependent child,
or children, then the full compensation shall be
paid to such spouse for his or her use and that of
such child or children, the Commission, however,
to have the power in proper cases, in its discre-
tion, to apportion the compensation; if the de-
pendent surviving spouse dies before payment is
made in full, the balance remaining shall be paid
to the person or persons wholly dependent, if
any, share and share alike. If there be no person
or persons wholly dependent, then the payment
shall be made to partial dependents.
In all other cases, questions of dependency, in
whole or in part, shall be determined in accor-
dance with the facts as the facts may be at the
time of the accident, but no allowance shall be
made for any payment made in lieu of board and
lodging or services, and no compensation shall
be allowed, unless the dependency existed for a
period of three months or more prior to the acci-
dent; and in such other cases if there is more
than one person wholly dependent, the death
benefit shall be divided among them, and per-
sons partially dependent, if any shall receive no
part thereof; if there is no one wholly dependent
and more than one person partially dependent,
the death benefit shall be divided among them
according to the relative extent of their depen-
dency.
For the purpose of this Act the dependence
of a widow or widower of a deseased employee
shall terminate with remarriage. The depen-
dence of a child, except a child physically or
mentally incapaciated from earning a livelihood,
shall terminate with the attainment of eighteen
years of age. In all cases, except such as are
hereinbefore specifically provided for, where there
are both total and partial dependents, and the
total dependents die, re-marry or cease to be
dependents, the partial dependents shall be en-
titled to the balance of compensation, if any.
Acts 1920, pp. 167, 188.
§ 3154(40). Total compensation. — The total
compensation payable under this Act shall in no
case exceed five thousand dollars. Acts 1920,
pp. 167, 190; 1923, pp. 92, 95.
Editor's Note.— The amendment of 1923 changed this sec-
tion from the maximum of $4,000 to $5,000 to make it cor-
respond to the similar provisions of § 3154 (30).
§ 3154(41). Payments not due when made. —
Any payments made by the employer to the in-
jured employee during the period of his disabil-
ity, or to his dependents, which by the terms of
this Act were not due and payable when made,
subject to the approval of the Industrial Com-
mission, [shall] be deducted from the amount to
be paid as compensation; provided, that in the
case of disability such deductions shall be made
by shortening the period during which compensa-
tion must be paid and not by reducing the
amount of the weekly payments. Acts 1920, pp.
167, 190.
§ 3154(42). Monthly or quarterly payments. —
The Industrial Commission, upon application of
either party, may, in its discretion, having regard
for the welfare of the employee and the con-
venience of the employer, authorize compensation
to be paid monthly or quarterly, instead of
weekly. Acts 1920, pp. 167, 191.
§ 3154(43). Payment in lump sum. — Whenever
any weekly payment has been continued for not
less than twenty-six weeks, the liability therefor
may, where the parties agree and the Industrial
Commission deems it to be the best interests of
the employee or his dependents, or where it will
prevent undue hardships on the employer, or hisi
insurance carrier, without prejudicing the inter-
ests of the employee or his dependents, be rein
deemed, in whole or in part, by the payment, by
the employer, of a lump sum, which shall bo
fixed by the Commission, but in no case to ex-
ceed the commutable value of the future install-
ments which may be due under this Act; pro-
vided that the lump sum to be paid shall be fixed
at an amount which will equal the total sum of
the probable future payments, capitalized at their
present value upon the basis of interest calcu-
lated at five per centum per annum. Acts 1920,
pp. 167, 191.
§ 3154(44). Trustees. — Whenever the Indus-
trial Commission deems it expedient, any lump
sum, subject to the provisions of the foregoing
section, shall be paid by the employer to some
suitable person or corporation appointed by the
Superior Court of the county wherein the acci-
dent occurred, or the original hearing was held,
as trustee, to administer the same for the benefit
of the person or persons entitled thereto in the
manner provided by the Commission. The re-
ceipt of such trustees for the amount as paid
shall discharge the employer or any one else
who is liable therefor. Acts 1920, pp. 167, 191.
§ 3154(45). Review of awards. — Upon its own
motion before judicial determination or upon the
application of any party in interest on the ground
of a change in condition, the Industrial Commis-j
sion may at any time review any award or any
settlement made between the parties and filed
with the Commission, and, on such review, may
make an award ending, diminishing or increasing
the compensation previously awarded or agreed-
upon, subject, to the maximum or minimum pro-
vided in this Act, and shall immediately send td
the parties a copy of the award. No such review
shall effect [affect] such award as regards any
monies paid. Acts 1920, pp. 167, 191. .
Applicability of Limitation Provision to Review. — The!
provisions of § 3154 (25) to the effect that the right to com-
pensation should be forever barred unless a claim be filed1
with the commission within one year after the accident,
has no application where the employee is seeking a review,
of an award of settlement under this section. Cas. Co. v,
Smith, 129 S. E. 880.
When Prior Decision in Case Not Res Judicata. — If future
developing facts and circumstances should show "a change
in condition'' with reference to the employee by reason of]
his previous injury, such as would actually diminish the
average weekly wages received by him, so that an award
[ 824]
3154(46)
WORKMEN'S COMPENSATION ACT
§ 3154(50)
hould be made, the law provides for such a contingency;
nd the ruling in this case denying recovery would not
perate as res judicata barring a proper award. American,
tc, Ins. Co. v. Hampton, 33 Ga. App. 476, 127 S. E. 155.
Hearing Questions Settled by Prior Agreement.— Where
be insurance carrier and the employee made a settlement
y agreement approved by the industrial commission, upon
be hearing of a subsequent application by the employee
>r a review of the settlement, upon the ground of a change
l his condition, the insurance carrier in the absence of
■aud, accident or mistake, and in the absence of a reserva-
ion of such right in the agreement, was precluded from
aising the question of whether the original injury arose out
f and in the course of the employment. Cas. Co. v. Smith,
29 S. E- 880.
Power to Rehear Case Upon Merits. — Neither upon its
wn motion, nor upon application of the employer and
::e claimant, has the Industrial Commission the power and
uthority, under this section or other provisions of the
wkman's compensation act, to pass an order reopening
case and granting another hearing for the taking of evi-
ence, and to reconsider the case upon its merits, and there -
pon to award compensation to the claimant, after the com-
lission has entered an order, finding that the employee was
farm employee and therefore exempt. Gravitt v. Ga.
lasuaity Co., 158 Ga. 613, 123 S. E. 897. See editor's note
nder § 3154 (59)
Waiver of Right by Contract. — A stipulation in the set-
lement agreement, that the employer and the insurance
arrier were relieved and forever discharged from all claims
nd demands whatsoever for the reason of the original in-
iry, did not bar such application from review, nor pre-
lude an award thereon contrary to the stipulation. Cas.
:o. v. Smith, 129 S. E- 880.
§ 3154(46). Receipts; from widow, minor and
uardian. — (a) Whenever payment of compensa-
ion, in accordance with the terms of this Act, is
lade to a widow or widower for her or his use
r for her or his use and the use of the child or
hildren, the written receipt thereof of such
/idow or widower shall acquit the employer;
b) whenever payment in accordance with the
erms of this Act is made to any minor employee
ighteen years of age or over, the written receipt
f such person shall acquit the employer. In
ases where an infant or minor under the age of
ighteen years shall be entitled to receive a sum
1 sums amounting in the aggregate to not more
han three hundred dollars as compensation for
tijuries, or as a distributive share by virtue of
his Act, the father, mother, natural guardian or
egally appointed guardian of such infant or
tiinor shall be authorized and empowered to re-
eive such monies for the use and benefit of said
ninor and to receipt therefor; and the release or
lischarge of such father, mother, natural guar-
lian or legally appointed guardian shall be in full
.nd complete discharge of all claims or demands
if such infant or minor thereunder; (c) when-
:ver payment of over three hundred dollars, in
iccordance with the terms of this Act, is made
o a minor under eighteen years of age, or to a
ninor child over eighteen physically or mentally
ncapable of earning, the same shall be made
o his duly and legally appointed guardian or to
ome suitable person or corporation appointed
>y the Superior Court as hereinbefore provided,
ts a trustee, and the receipt of such guardian or
»uch trustee shall acquit the employer; (d) pay-
nent of death benefits by an employer in good
aith to a dependent subsequent in right to
mother or other dependents shall protect and
iischarge the employer unless such dependent
)r dependents prior in right shall have given
lotice of his or their claim. In case the em-
ployer is in doubt as to the respective rights of
rival claimants, he may apply to the Industrial
Commission to decide between them. Acts 1920,
pp. 167, 192.
§ 3154(47). Minor's or lunatics' trustee. — If an
injured employee is mentally incompetent or is
under eighteen years of age at the time when
any right or privilege accrues to him under this
Act, his guardian, or trustee, may in his behalf
claim and exercise such right or privilege. Acts
1920, pp. 167, 193.
§ 3154(48). No time limit against lunatics or
minors without trustees. — No limitation of time
provided in this Act for the giving of notice or
making claim under this Act shall run against
any person who is mentally incompetent, or a
minor dependent, so long as he has no guardian
or trustee, or to a person who proceeds in good
faith against a corporation supposed to have a
legal entity, but which is proved to be defunct by
reason of the expiration of its charter. Acts
1920, pp. 167, 193; 1925, pp. 282, 284.
Editor's Note. — This section was amended by the act of
1925, by adding the provision that the limitations as to
time should not run against a person who proceeds in good
faith against a defunct corporation.
§ 3154(49). Joint service of more than one
employer. — Whenever any employee for whose
injury or death compensation is payable under
this Act shall at the time of the injury be in the
joint service of two or more employers subject
to this Act, such employers shall contribute to
the payment of such compensation in proportion
to their wage liability to such employee; Pro-
vided, however, that nothing in this section shall
prevent any reasonable arrangement between
such employers for a different distribution as
between themselves of the ultimate burden of
compensation. Acts 1920, pp. 167, 193.
What Constitutes Joint Employment. — In order for one to
be in the employment of two employers, in the sense of
collecting compensation from each, under this section, it
would seem to be necessary that he receive compensation
from each, in view of the holding in Ga. Ry. and P. Co.
v. Middlebrooks, 128 S. E. 777. See note from this case
under § 3154 (2).
§ 3154(50). Industrial Commission created. —
There is hereby created a Commission to be
known as the Industrial Commission, consisting
of the Commissioner of Commerce and Labor,
who shall be ex-ofncio Chairman; of the At-
torney-General, and two members to be ap-
pointed by the Governor. One of the members
of this Commission to be appointed by the Gov-
ernor, shall serve for two years, and another for
the term of four years; and thereafter each
member shall be appointed for a term of
four years; no more than one member of said
Commission appointed by the Governor shall
be a person who on account of his previous vo-
cation, employment or affiliation, shall be classi-
fied as a representative of employers, and not
more than one of such appointees shall be a
person who, on account of his previous vocation,
employment or affiliation shall be classed as a
representative of employees. Each of the ap-
pointees by the Governor on said Commission
shall devote his entire time to the duties of his
office, and shall not hold any position of trust or
profit, or be engaged in any occupation or busi-
ness interfering or inconsistent with his duties
as such member. Acts 1920, pp. 167, 193.
825 ]
§ 3154(51)
WORKMEN'S COMPENSATION ACT
§ 3154(56)
§ 3154(51). Salaries; clerical help; expenses. —
(a), The Commissioner of Commerce and Labor,
as ex-officio chairman of said Industrial Com-
mission, shall receive the sum of twelve hundred
($1,200.00) dollars per annum; and the salary of
each member of the commission appointed by
the Governor shall be four thousand ($4,000.00)
dollars per annum; the commission may appoint
a secretary-treasurer and shall fix his salary,
who shall give bond in the sum prescribed by the
Commission, and who may be removed by the
Commission; (b) The Commission may also,
subject to the approval of the Governor, employ
such clerical or other assistance that may be
deemed necessary, and fix the salaries of all per-
sons so employed; (c) Members of this Com-
mission and its assistants shall be entitled to re-
ceive the actual necessary expenses while travel-
ing on the business of the Commission, but the
expenses shall be sworn to by such person,
incurring the same and shall be approved by the
chairman before payment is made; (d) All of
the salaries of the Commission, including the
Commissioner of Commerce and Labor as ex-
officio chairman, and expenses shall be audited
and paid out of the funds in the hands of the
secretary-treasurer, according to rules and regu-
lations prescribed by the Commission. Acts,
1920, pp. 167, 194; 1922, pp. 77, 78.
Editor's Note. — This section was amended in 1922 to pro-
vide a salary for the commission of Commerce and Labor
as ex-officio Chairman of the Industrial Commission.
§ 3154(52). Officers; deputies.— (a) The Com-
mission shall be provided with adequate offices
in the Capitol or some other suitable building in
the City of Atlanta, in which the records shall be
kept and its official business transacted during
regular business hours; it shall also be provided
with necessary office furniture, stationery and
other supplies, (b) The Commission may ap-
point deputies from time to time, as required, to
serve only, as and when needed, without perma-
nent positions, who shall have the power to
subpoena witnesses and administer oaths, and
who may take testimony in such cases as the
Commission may deem proper. Such testimony
shall be transmitted in writing to the Commis-
sion and the Commission shall fix the compen-
sation of such deputies. (c) The Commission
or any member thereof may hold sessions at any
place within the State as may be deemed neces-
sary by the Commission, subject to the other
provisions of this Act. Acts 1920, pp. 167, 195.
§ 3154(53). Rules; subpoenas, etc.; quorum. —
(a) The Commission may make rules, not in-
consistent with this Act, for carrying out the
provisions of this Act. Processes and proce-
dure under this Act shall be as summary and
simply as reasonably may be. The Commission
or any member thereof or any person deputized
by it shall have the power for the purpose of this
Act to subpoena witnesses, administer or cause
to have administered oaths, and to examine or
cause to be examined such parts of the books and
records of the parties to a proceeding as relate
to questions in dispute, (b) The sheriffs of this
State within their respective jurisdictions, and
their respective deputies, shall serve all subpoe-
nas of the Commission or its deputies and shall
receive the same fees as are now provided by law
for like civil actions; each witness who appears
in obedience to such subpoena of the Commis-
sion shall receive for attendance the fees pre-
scribed by law for witnesses in civil cases in
courts. The Superior Courts shall, on applica-
tion of the Commission or any member or deputy
thereof, enforce by proper proceedings the at-
tendance and testimony of witnesses and the
production and examination of books, papers
and records. (c) Any two members of the
Commission shall constitute a quorum for the
transaction of any business or the rendition of
any decision herein provided to be made by the
full Commission. Acts 1920, pp. 167, 195; 1925,
p. 282.
Editor's Note. — Sub- division (c) of this section was
amended by the act of 1925 to provide that a quorum for
the transactions of business should be two members of the
commission rather than three.
Effect of Admitting Hearsay Evidence. — That certain
heresay evidence may have been admitted over defendants
objection will not justify setting aside the finding in such a
hearing, which this section provides shall be as simple as
reasonable may be. Davis v. Menefee, 131 S. E. 527. See
§ 3154 (59).
§ 3154(54). Publications. — The Commission
shall prepare and cause to be printed, and upon
request furnish free of charge to any employee
or employer such blank forms and literature as
it shall deem requisite to facilitate or promote
the efficient administration of this Act. The
Commission shall tabulate the accident reports
received from employers in accordance with
Section 3154(65), and shall publish the same in
the annual report of the Commission and as of-
ten as it may deem advisable, in such detailed or
aggregate form as it may deem best. The name
of the employer or employee shall not appear in
such publications and the employers' reports
themselves shall be private records of the Com-
mission, and shall not be open for public inspec-
tion except for the inspection of the parties directly
involved, and only to the extent of such interest.
These reports shall not be used a s evidence
against any employer in any suit at law brought
by any employee for the recovery of damages,
or in any proceeding under this Act. Acts 1920,
pp. 167, 196.
§ 3154(55). Agreements. — If after fourteen
days from the date of the injury or at any time
in case of death, the employer and the injured
employee or his dependents reach an agreement
in regard to compensation under this Act, a
memorandum of the agreement in the form pre-
scribed by the Commission shall be filed with the
Commission for approval as herein provided;
otherwise such agreement shall be voidable by
the employee or his dependents. If approved
by the Commission, thereupon the memorandum
shall for all purposes be enforced by decree or
judgment of the Superior Court, as herein speci-
fied. Acts 1920, pp. 169, 196.
§ 3154(56). Hearings regarding disagreements.
If the employer and the injured employee or his
dependents fail to reach an agreement in regard
to compensation under this Act, or if they have
reached such an agreement which has been
signed and filed with the Commission and com-
pensation has been or is due in accordance
therewith, and the parties thereto then disagree
as to the continuance of any weekly payment
[ 826 ]
§ 3154(57)
WORKMEN'S COMPENSATION ACT
§ 3154(59)
under such agreement, either party may make
application to the Commission for a hearing in
regard to the matters at issue and for a ruling
thereon. Immediately after such application has
Deen received the Commission shall set a date
:or a hearing, which shall be held as soon as
Dracticable, and shall notify the parties at issue
}f the time and place of such hearing. The hear-
ng shall be held in the county where the injury
Dccurred, if the same occurred in this State, un-
ess otherwise agreed to between the parties and
tuthorized by the Commission. If the injury
>ccurred without the State of Georgia, and is
>ne for which compensation is payable under
his Act, then the hearing above referred to may
)e held in the County of the employer's resi-
lence or place of business, or in any other county
)f this State which will, in the discretion of the
Commission, be the most convenient for a hear-
ng. Acts 1920, pp. 167, 197.
§ 3154(57). Conduct of hearings.— The Com-
nission or any of its members shall hear the
>arties at issue and their representatives and
vitnesses and shall determine the dispute in a
ummary manner. The award, together with a
tatement of the findings of fact and other mat-
ers pertinent to the questions at issue shall be
iled with the record of the proceedings, and a
opy of the award shall immediately be sent to
he parties at dispute. The parties may be heard
>y a deputy, in which event he shall swear or
ause the witnesses to be sworn and shall trans-
ait all testimony to the Commission for its de-
ermination and award. Acts 1920, pp. 167, 197.
As to rules of construction of act, see § 3154 (1).
Purpose of Statement of Facts. — This section requires that
he award of the Industrial Commission shall be accom-
anied with a statement of the findings of fact upon which
i is made, in order that the losing party may intelligently
repare his appeal and that the cause may thereupon be
ntelligently reviewed. See § 3154 (59). Southeastern Ex-
ress Co. v. Edmondson, 30 Ga. App. 697, 119 S. E. 39.
Comprehensiveness of Statement. — This requirement con-
emplates a concise but comprehensive statement of the
ause and circumstances of the accident as the commission
hall find it in truth to have occurred. A repetition of the
vidence heard is not a compliance with this requirement,
ut will not vitiate the findings if otherwise sufficiently
tated. Nor is it enough to state merely in the language of
he statute that the injury is found to have arisen out of
nd in the course of the employment. Southeastern E)x-
ress Co. v. Edmondson, 30 Ga. App. 697, 119 S. E. 39.
Adoption by Commission of Commissioner's Finding. —
f. upon an application for a review under the provisions
f § 3154 (58), the full commission shall find the facts as
hey were found by the sole commissioner, it will be suffi-
ient for the statement of the findings of the latter to be
dopted by the full commission, without the necessity of a
estatement in detail. Southeastern Express Co. v. Ed-
londson, 30 Ga. App. 697, 119 S. E- 39.
Effect of Failure to State Findings. — A failure of the
ommission to state its findings will not necessarily re-
uire a rehearing de novo, but the case may be recommit-
ed merely in order that the commission may state its find-
igs from the evidence already heard, according as the
eviewing court may direct. Southeastern Express Co. v.
Jdmoridson, 30 Ga. App. 697, 119 S. E. 39.
Power to Pass Temporary Orders — The Industrial Com-
mission^ is an administrative body, and there is no pro-
ision in the act for temporary orders. Gravitt v. Ga.
Casualty Co., 158 Ga. 613, 123 S. E. 897.
§ 3154(58). Review. — If an application for re-
iew is made to the Commission within seven
ays from the date of notice of the award, the
ull Commission shall review the evidence, or, if
eemed advisable, as soon as practicable, hear
he parties at issue, their representatives and
witnesses, and shall make an award and file the
same in like manner as specified in the foregoing
section, together with its rulings of law in the
premises. A copy of the award so made on re-
view shall immediately be sent to the parties at
dispute. The full Commission may remand to a
single Commissioner any case before the full
Commission for review for the purpose of taking
additional evidence, said evidence shall be deliv-
ered to the full Commission and it shall be taken
into account before rendering any decision or
award in such case. Acts 1920, pp. 167, 198;
1925, pp. 282, 285.
As to effect of waiting until rehearing by commission to
make objection thereto, see note to § 3154 (59).
Editor's Note.— The last sentence of this section was ad-
ded by the act of 1925. For the effect, see the annotations
to this section below.
Newly Discovered Evidence. — While § 6086, relating to
newly discovered evidence as a ground for a new trial, is
no part of the workmen's compensation law, yet upon an
application for review the full commission, in determining
whether on account of newly discovered evidence it will re-
hear the witnesses, may properly be guided by similar con-
siderations to those referred to in this section. South-
eastern Express Co. v. Edmondson, 30 Ga. App. 697, 119
S. E. 39.
Necessity of Retaking Testimony. — After a finding and
award by one of the commissioners, the full commission,
upon an application for review^ is not required to retake the
testimony, unless it deems it advisable so to do. South-
eastern Express Co. v. Edmondson, 30 Ga. App. 697, 119
S. E. 39.
Conceding (but not deciding) that the exercise of its
discretion upon such a matter may in a proper case be the
subject of review, there was no abuse of discretion in the
refusal of the full commission to rehear the evidence, with
that alleged to have been newly discovered, upon the ap-
plication of the employer, in the case now under considera-
tion. Southeastern Express Co. v. Edmondson, 30 Ga. App.
697, 119 S. E. 39.
Remanding Case to Commissioner to Take Additional
Testimony. — When a case is pending on review before the
full commission, as is provided by this section, the power
of the commission is limited by the provisions of the sec-
tion, and it has no authority to remand a case to one of
the commissioners for the purpose of taking additional testi-
mony and making a new award. Home Accident Ins. Co.
v. Williams, 33 Ga. App. 540, 126 S. E. 868. This rule was
changed by the amendment of 1925, giving the commission
such power. Ed. Notes.
§ 3154(59). Appeals to Superior Court; writ
of error. — Any award of the Commission, pro-
vided for in Section 3154(57), with respect to
which no application for a review thereof be filed
in due time, or an award of the Commission up-
on such review as provided in Section 3154(58)
shall, in either event, as the case may be, and
subject to the other provisions of this Act, be a
final award and shall be conclusive and binding
as to all questions of fact; but either party to
the dispute may, within thirty days from the
date of any final award, or within thirty days
from the date of any other final order or judg-
ment of said Commission, but not thereafter, ap-
peal from the decision in such final award or
from any other final decision of said Commission
to the Superior Court of the county in which the
injury occurred, or if the injury occurred with-
out the State, then to the Superior Court of the
county in which the original hearing was had, in
the manner hereinafter outlined, and upon the
following grounds, viz.: The party conceiving
himself to be aggrieved may file an application
in writing with the Commission asking for an
appeal from any such order or decree, stating
generally the grounds upon which such appeal
is sought. In the event such appeal is filed as
[827]
§ 3154(59)
WORKMEN'S COMPENSATION ACT
§ 3154(59)
hereinbefore provided, the Commission shall,
within thirty days from the filing of the same,
cause certified copies of all documents and pa-
pers then on file in its office in the matter, and a
transcript of all testimony taken therein, to be
transmitted with its findings and order or decree
to the Clerk of the Superior Court to which the
case is appealable, as hereinbefore set out. The
cause so appealed may thereupon be brought on
for a hearing in either term time or vacation be-
fore said Superior Court upon such record by
either party on ten days written notice to the
other; subject, however, to an assignment of
the same for hearing by the Court. The findings
of fact made by the Commission within its power
shall, in the absence of fraud, be conclusive, but
upon such hearing the Court shall set aside said
order or decree of the Industrial Commission, if
it be found:
(1) That the Industrial Commission acted
without or in excess of its powers.
(2) That the order or decree was procured by
fraud.
(3) That the facts found by the Industrial
Commission do not support the order or decree.
(4) That there is not sufficient competent evi-
dence in the record to warrant the Industrial
Commission in making the order or decree com-
plained of or,
(5) That the order or decree is contrary to
law.
No order or decree of the Industrial Commission
shall be set aside by the Court upon any grounds
other than one or more of the grounds above
stated. If not set aside upon one or more of
such stated grounds, the Court shall affirm the
order, judgment, decree or decision of the Com-
mission so appealed from. Upon the setting
aside of any such order, decree or decision of the
Commission, the Court may recommit the con-
troversy to the Commission for further hearing
or proceedings in conformity with the judg-
ment and opinion of the court, or such
court may enter the proper judgment
upon the findings, as the nature of the case may
demand. Such decree of the Court shall have
the same effect and all proceedings in relation
thereto shall, subject to the other provisions of
this Act, thereafter be the same as though ren-
dered in a suit heard and determined by said
Court. The Court of Appeals of Georgia shall,
within thirty days after this Act takes effect,
prescribe such rules of procedure, not inconsist-
ent with the above and foregoing, as may be
necessary or proper to fix the details of the form
and manner of such appeal.
The Commission of its own motion may cer-
tify questions of law to the Court of Appeals of
Georgia for decision and determination by the
said Court. Any party in interest who is ag-
grieved by a judgment entered by the Superior
Court upon an appeal from an order or decree of
the Commission to the Superior Court, may
appeal therefrom to the Court of Appeals of
Georgia by writ of error and bill of exceptions
within the time and in the manner provided by
law for appeals by fast bills of exception from
other orders, judgments and decrees of the
Superior Court made by law reviewable upon
fast bills of exception. In case of an appeal
from the decision of the Commission, or of a
certification by said Commission of questions of
law to the Court of Appeals, said appeal or cer-
tification shall operate as a supersedeas, if the
emplo3^er has complied with the provisions of
this Act respecting insurance, and no such em-
ployer shall be required to make payment of the
award involved in the questions made in the case
so appealed or certified, until such questions at
issue therein shall have been fully determined in
accordance with the provisions of this Act. Acts
1920, pp. 167, 198.
Editor's Note. — An order of the industrial commission may
be set aside only upon the grounds specified in this section.
This rule is strictly construed. The judge of the superior
court does not have the discretion to remove, the case for
a rehearing which he exercises on motions for a new trial
in his own court. See Guaranty Co. v. Hall, 129 S. E.
305.
So where the finding of facts by the commission is not
as a matter of law demanded, though being within its
power, free from fraud and supported by evidence, the
holding of the superior court erroneously setting aside the
finding, upon one of the grounds enumerated in this sec-
tion, should not be sustained by the court of Appeals upon
the theory that it was the first grant of a new trial.
Casualty Co. v. England, 129 S. E. 75, 129 S. E. 446.
By referring to the note under § 3154 (45), it will be seen
that the commission does not have power to grant a re-
hearing to reconsider the case upon its merits, in the ab-
sence of a change in the condition of the parties, after it has
entered a final order deciding the case. In view of al! of
these holdings it would seem that unless the rehearing is
ordered upon one of the grounds enumerated in this sec-
tion, the case can not be reopened for another hearing upon
its merits after a final disposition of it by the commission.
Admission of Hearsay Evidence as Ground. — In view of
this section, admission of hearsay over a party's objection
will not justify the setting aside of a finding of the In-
dustrial Commission that work was not being done through
independent contractor. Davis v. Menefee, 131 S. E. 527,
See note under § 3154 (53).
Waiting Until Rehearing to Make Objection Thereto. —
Where a case was reopened and a second hearing was al-
lowed by the commission, the insurance carrier could
await until the second hearing on the merits of the claim,
fand, within 30 days after final decision of the commission,
make objection to the granting of such rehearing, as pro-
vided in this section. Gravitt v. Ga. Casualty Co., 158
Ga. 613, 123 S. E. 897, 32 Ga. App. 640, 124 S. E. 198.
Raising New Point on Appeal. — Where an application for
an award of damages is made ' to the industrial commis-
sion, questions not raised when the case is heard by one of
the commissioners, or on appeal to the full commission,
can not be raised for the first time on appeal to the supe-
rior court. Integrity Mutual Cas. Co. v. Hankins, 33 Ga.
App. 339, 125 S. E. 554.
Finding of Fact Must Be Supported by Competent Evi-
dence.— The findings of the commission on questions of
fact, if supported by any evidence, are conclusive. New
Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118
S. E. 788. See Travelers Ins. Co. v. Bacon, 30 Ga. App.
728, 119 S. E. 458. ''Any evidence," as used above, means,
of course, any "competent evidence." See London Guaran-
tee <t Accident Co. v. Shockley, 31 Ga. App. 762, 122 S.
E. 99; Ga. Casualty Co. v. Martin, 157 Ga. 909, 122 S. E. 81;
American Mutual Liability Ins. Co. v. Adams, 32 Ga.
App. 759, 761, 124 S. E. 901.
Finding of Fact Conclusive. — Finding of fact made by
commission, if supported by evidence will, in an absence of
fraud, be conclusive. Fid. Co. v. Hall, 129 S. E. 305; Cas.
Co. v. Sumrell, 30 Ga. App. 682, 118 S. E. 786; New Ams-
terdam Cas. Co. v. Sumrell, 30 Ga. App. 686 (1) ; London
Guarantee &c. Co. v. Shockley, 31 Ga. App. 762 (1); Ameri-
can Mutual Liability Ins. Co. v. Adams, 32 Ga. App. 759,
761; Cas. Co. v. Hankins, 33 Ga. App. 339; Jackson v. Lum-
berman's Mutual Cas. Co., 33 Ga. App. 35; Cas. Co. v. Eng-
land, 129 S. E. 75.
The commission's finding that the beneficiary was em-
ployee entitled to compensation is conclusive where au-
thorized by evidence. Trov. Ins. Co. v. Bacon, 30 Ga. App.
728, 119 S. E. 458. See note under § 3154 (2) (d).
Sufficiency of Evidence Equlvolent to Verdict Approved
by Judge. — With respect to the sufficiency of the evidence
to support it, an award made by the commission stands in
[828]
§ 3154(60)
WORKMEN'S COMPENSATION ACT
§ 3154(66)
this court upon the same footing as the verdict of a jury
approved by the trial judge in other cases. Jackson v. Cas.
Co., 33 Ga. App. 762, 122 S. E\ 99; London Guarantee &c.
Co. v. Shockley, 31 Ga. App. 762, 122 S. E. 99.
Necessity of Judge Pointing Out Error to Be Cured. —
When the superior court, in reviewing the findings of the
industrial commission, recommits the controversy to the
;ommission for further hearing or proceedings, it is es-
sential that the judgment be accompanied by an opinion
directing the attention of the commission to the precise er-
rors to be cured or the precise deficiencies to be supplied
upon a reconsideration of the case by the commission.
Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121
S. E. 345.
§ 3154(60). Judgment in accordance with
Commission.- — Any party in interest may file in
the Superior Court of the county in which the
injury occurred, or if the injury occurred with-
out the State of Georgia, then in the county in
which the original hearing was had, a certified
:opy of a memorandum of agreement approved
by the Commission, or of a iinal order or decis-
ion of the Commission, or an award of the Com-
mission unappealed from, or of an award of the
Commission affirmed upon appeal, whereupon
said Court shall render judgment in accordance
therewith and notify the parties. Such judg-
ment shall have the same effect, and all proceed-
ings in relation thereto shall thereafter be the
same, as though said judgment had been ren-
iered in a suit duly heard and determined by said
Court. Provided, however, that where the pay-
ment of compensation is insured or provided for
in accordance with the provisions of this Act, no
such judgment shall be entered nor execution
thereon issued, except upon application to the
Court and for good cause shown. Upon presen-
tation to the Court of a certified copy of a decis-
ion of the Commission ending, diminishing or
increasing a weekly payment under the provis-
ions of this Act, particularly of Section 3154(60)
thereof, the Court shall revoke or modify the
order or decree to conform to such decision of
the Commission. Acts 1920, pp. 167, 200.
§ 3154(61). Proceedings without reasonable
grounds. — If the Commission or any Court be-
fore whom any proceedings are brought under
this Act shall determine that such proceedings
have been brought, prosecuted or defended with-
out reasonable ground, it may assess the whole
cost of the proceedings upon the party who has
brought or defended them. Acts 1920, pp. 167,
201.
§ 3154(62). Appointment of physician.— -The
Commission or any member thereof may, upon
the application of either party or upon its own
motion, appoint a disinterested and duly quali-
fied physician or surgeon to make any necessary
medical examination of the employee and to tes-
tify in respect thereto. Said physician or sur-
geon shall be allowed travelling expenses and
a reasonable fee to be fixed by the Commission,
not exceeding ten dollars for each examination
and report, but the Commission may allow ad-
ditional reasonable amounts in extraordinary
cases. The fees and expenses of such physician
or surgeon shall be paid by the State. Acts
1920, pp. 167, 201.
§ 3154(63). Fees, — Fees of attorneys and phy-
sicians and charges of hospitals for services
under this Act shall be reasonable and measured
[8
according to the employee's station and shall be
subject to the approval of the Commission. Acts
1920, pp. 167, 202.
§ 3154(64). Questions settled by commission. —
All questions arising under this Act, if not set-
tled by agreements of the parties interested there-
in, with the approval of the Commission, shall be
determined by the Commission, except as other-
wise herein provided. Acts 1920, pp. 167, 202.
§ 3154(65). Records and reports of injuries,
and termination of incapacity. — (a) Every em-
ployer who accepts the provisions of this Act,
relative to the payment of compensation, shall
hereafter keep a record of all injuries, fatal or
otherwise, received by his employees in the
course of their employment, on blanks approved
by the commission. Within ten days after the
occurrence and knowledge thereof, as provided in
Section 3154(23), of an injury to an employee
requiring medical or surgical treatment, or caus-
ing his absence from work for more than seven
days, a report thereof shall be made in writing
and mailed to the commission on blanks to be
procured from the commission for this purpose.
(b) The records of the commission, in so far as
they refer to accidents, injuries and settlements,
shall not be open to the public; but only to the
parties satisfying the commission of their inter-
est in such records and the right to inspect them.
(c) Upon the termination of the disability of
the injured employee, the employer shall make a
supplementary report to the commission on
blanks to be procured from the commission for
the purpose, (d) The said report shall contain
the name, nature and location of the business of
the employer, and name, age, sex and wages and
occupation of the injured employee, and shall
state the date and hour of the accident causing
the injury, the nature and cause of the injury
and such other information as may be required
by the commission. (e) Any such employer
who refuses or wilfully neglects to make report
required by this section shall be liable for a pen-
alty of not more than twenty-five dollars for
each refusal or wilful neglect, to be assessed by
a commissioner in an open hearing, with the
right of review as in other cases. In the event
the emplo3'er has transmitted the report to the
insurance carrier for transmission by the insur-
ance carrier to the industrial commission, the
insurance carrier wilfully neglecting or failing to
transmit the report when made to the insurance
carrier by the employer shall be liable or shall
pay the fine. Acts 1920, pp. 167, 202; 1923, pp.
92, 96.
Editor's Note. — The amendment of 1923 altered sub-di-
vision (a) of this section, by changing the minimum num-
ber of days of absence for which a report is required to be
made from fourteen to seven. It also amended sub-division
(e) by providing that the commission might assess the fine
subject to review rather than collect it in a court of compe-
tent jurisdiction by suit, and by adding the last sentence,
making the insurance carrier liable in certain instances.
§ 3154(66). Insurance ; security. — Every employee
[employer] who accepts the provisions of this Act
relative to the payment of compensation shall fully
insure and keep fully insured, unless otherwise
ordered or permitted by the Commission, his
liability thereunder in some corporation, associa-
tion, or organization, licensed as provided by law.
to transact the business of Workmen's Compen-
29 ]
§ 3154(67)
WORKMEN'S COMPENSATION ACT
§ 3154(70)
sation Insurance in this State, or in some mutual
insurance association formed by a group of em-
ployers so licensed, or shall furnish to the Com-
mission satisfactory proof of his financial ability
to pay direct the compenstion in the amount and
manner and when due as provided for in this
Act. In the latter case the Commission may in
its discretion require the deposit of an acceptable
security, indemnity or bond to secure the pay-
ment of compensation liabilities as they are in-
curred. Provided, that it shall be satisfactory
proof or the employer's financial ability to pay
direct the compensation in the amount and man-
ner when due, as provided for in this Act, and
acceptable security, indemnity or bond to secure
the payment of compensation liabilities as they
are incurred, if the employer shall show to the
Commission that he is a member of a mutual
insurance company, duly licensed to do business
in this State by the Insurance Commissioner, as
provided by the laws of this State, or of an asso-
ciation or group of employers, so licensed, and
as such is exchanging contracts of insurance
with the employers of this and other States,
through a medium as specified and located in
their agreements between each other, but this
provisio shall in no wise restrict or qualify the
right of self-insurance as hereinbefore author-
ized. Nothing herein shall be construed to re-
quire an employer to place his entire insurance
in a single insurance carrier. Acts 1920, pp.
167, 203.
§ 3154(67). Evidence of compliance to be filed;
refusal or neglect to comply.— (a) Every em-
ployer accepting the compensation provisions of
this Act shall within thirty days after this Act
takes effect file with the commission as pre-
scribed by it, and thereafter annually, or as often
as the commission, in its discretion, may deem
necessary, evidence satisfactory to the commis-
sion of his compliance with the provisions of
Section 3154(66) and all others relating thereto,
(b) If such employer refuses or wilfully neg-
lects to comply with these provisions he shall be
guilty of a misdemeanor and shall be punished
as provided in Section 1065 of the Penal Code of
1910. In addition thereto, the industrial com-
mission hearing any application for compensation
by an injured employee of such delinquent em-
ployer may assess against such employer com-
pensation in an amount greater by ten per cent,
than that provided for in this Act, and shall also
fix a reasonable attorney's fee for the represen-
tative of the employee to be paid by the em-
ployer in addition to the increased compensa-
tion. The said attorney's fee and said increase of
compensation shall be due and payable at once,
and the payment of same shall be enforced as
provided elsewhere in this Act. Acts 1920, pp.
167, 204; 1923, pp. 92, 97.
Editor's Note.— The act of 1923 purports to amend this
section by providing a penalty for an employer who re-
fuses or willfully neglects to comply with its provisions
"and others relating thereto." The amending clause
struck all of sub -division (b) and substituted therefor the
provisions appearing above in such sub-division. Prior to
the amendment such employer was punished by a fine and
was subject to certain penalties for each day of refusal
and neglect to comply, until he should comply. It was also
provided that the employer should be liable during the
continuance of such refusal and neglect to an employee,
at the option of the employee, either for compensation
under the act or at law in the same manner as provided
in § 3154 (16).
Applicable Only to Employers Accepting Act. — Subsection
b of this section does not penalize the refusal or neglect
of an employer to perform the duty, imposed upon him un-
der subsection a of the section, to file with the commis-
sion within thirty days after the act goes into effect "evi-
dence satisfactory to the commission of his compliance with
the provisions of § 3154 (66) and all others relating there-
to." Turner v. Albany Coca-Cola Bottling Co., 32 Ga.
App. 518, 123 S. E. 910.
Under the foregoing ruling the defendant employer came
within the terms of the act, and the petition, filed in the
superior court by the employee, seeking to recover in tort
at common law, for an injury received in 1921 (prior to
amendment of 1923, in editor's note), failed to set out a
cause of action, and was properly dismissed. Turner v.
Albany Coca-Cola Bottling Co., 32 Ga. App. 518, 123 S. E-
910.
§ 3154(68). Certificate. — Whenever an em-
ployer has complied with the provisions of Sec-
tion 3154(66), relating to self-insurance, the
Commission shall issue to such employer a cer-
tificate which shall remain in force for a period
fixed by the Commission, but the Commission
may upon at least sixty days' notice and hearing
to the employer revoke the certificate upon satis-
factory evidence for such revocation having
been presented. At any time after such revoca-
tion the Commission may grant a new certificate
to the employer upon his petition. Acts 1920,
pp. 167, 204.
§ 3154(69). Substitute systems; termination.
— (a) Subject to the approval of the Commission,
any employer may enter into or continue any
agreement with his employees to provide a sys-
tem of compensation, benefit or insurance in lieu
of the compensation and insurance provided by,
this Act. No such substitute system shall be ap-
proved unless it confers benefits upon injured
employees at least equivalent to the benefits
provided by this Act, nor if it requires contribu-
tion from the employees unless it confers bene-
fits in addition to those provided under this Act
at least commensurate with such contribution,
(b) Such substitute system may be terminated
by the Commission on reasonable notice and
hearing to the interested parties if it shall appear
that the same is not fairly administered or if its
operation shall disclose defects threatening its
solvency, or if for any substantial reason it fails
to accomplish the purpose of this Act; and in
this case the Commission shall determine upon
the proper distribution of all remaining assets,
if any, subject to the right of any party at interest
to take an appeal to the Superior Court of the
count)r wherein the principal office or chief place
of business of the employer is located. Acts
1920, pp. 167, 205.
§ 3154(70). Knowledge of injury. — All policies
insuring the payment of compensation under this
Act, including all contracts of mutual, reciprocal
or inter-insurance, must contain a clause to the
effect that as between the employer and the in-
surer or insurers the notice to or knowledge of
the occurrence of the injury on the part of the
insured employer shall be deemed notice or
knowledge, as the case may be, on the part of
the insurer or insurers; that jurisdiction of the
insured for the purpose of this Act shall be juris-
diction of the insurer or insurers; and that the
insurer or insurers shall in all things be bound
by and subject to the awards, judgments or de-
[ 830 ]
3154(71)
GENERAL PRINCIPLES OF PARTNERSHIPS
§ 3155
rees rendered against such insured employer.
|fcts 1920, pp. 167, 205.
§ 3154(71). Policy or contract of insurance. —
vfo policy or contract of insurance against lia-
•ility arising under this Act shall be issued
inless it contains the agreement of the insurer
ir insurers that it will promptly pay to the per-
on entitled to same all benefits conferred by this
jt, and all installments of the compensation
hat may be awarded or agreed upon, and that
he obligation shall not be affected by any de-
ault of the insured after the injury or by any
efault in giving notice required by such policy,
r otherwise. Such agreement shall be con-
trued to be a direct promise by the insurer or
isurers to the person entitled to compensation
nforceable in his name. Acts 1920, pp. 167,
06.
§ 3154(72). Policies subject to this Act; ex-
eptions. — (a) Every policy for the insurance of
he compensation herein provided, or against
iability therefor, including all contracts of mu-
ual, reciprocal or inter-insurance, shall be
eemed to be made subject to the provisions of
his Act. No corporation, association or organi-
ation, and no mutual, reciprocal or inter-insur-
rs shall enter into or make any such policy or
ontract of insurance unless its form shall have
>een approved by the Commission. (b) This
fet shall not apply to policies of insurance
gainst loss from explosion of boilers or fly
vheels or other similar catastrophe hazards.
lets 1920, pp. 167, 206.
§ 3154(73). Rates of insurance carriers; report
o commission. — (a) The rates charged by all
arriers of insurance, including the parties to
try mutual, reciprocal, or other plan or scheme,
writing insurance against the liability for
ompensation under this Act, shall be fair,
easonable and adequate, with due allowance
or merit rating, and all risks of the same kind
.nd degree of hazard, shall be written at the
ame rate by the same carrier. The basic
ates for policies or contracts of insurance
gainst liability for compensation under this Act
hall be filed with the Insurance Commissioner
or his approval, and no policy of insurance
.gainst such liability shall be valid until the basic
ate thereof has been filed with, approved and
lot subsequently disapproved, by the Insurance
rommissioner. Any plan or scheme for modi-
ication of such basic rates by physical inspec-
ion or experience or merit rating shall likewise
>e filed with the Insurance Commissioner and
)y him approved, and no carrier of insurance
■hall write any such policy or contract until after
iling and approval of a basic rate therefor and a
schedule or plan to be employed in producing in-
dividual rates for risks, (b) Each such insurance
:arrier, including the parties to any mutual,
•eciprocal, or other plan or scheme writing in-
surance against the liability for compensation
mder this Act, shall report to the Insurance
Commissioner as provided by law, and in ac-
:ordance with such reasonable rules as the In-
surance Commissioner may at any time prescribe
or the purpose of determining the solvency of
:he carrier, and the adequacy or reasonableness
)f its rates and reserves; for such purpose the In-
surance Commissioner may inspect all the books
and records of such insurance carrier and of its
agent or agents, and examine its agents, officers
and directors under oath. Acts 1920, pp. 167,
206.
§ 3154(74). Effect of partial invalidity. — If any
section of the provisions of this Act be decided
by the Courts to be unconstitutional or invalid,
the same shall not affect the validity of this Act as
a whole or any part thereof other than the part so
decided to be unconstitutional or invalid. Acts
1920, pp. 167, 207.
§ 3154(75). Prorating of commission expenses;
reports; audits. — The total expenses of the Com-
mission shall be prorated among the insurance
companies writing compensation insurance in
this State and the employers permitted by the
Commission to pay compensation direct, herein-
after referred to as self-insurers; on the basis, in
the case of the insurance companies, of the gross
earned premium; in the case of self-insurers, on
the basis of the amount of premium which such
self-insurer would have to pay in the event the
self-insurer had insured his liability in a casualty
company writing this class of business in Geor-
gia. Prorated advances based on the experience
of the previous year, shall be made on each
January first and July first by the insurance car-
riers, and self-insurers on a budget furnished by
the Commission, the said advances for the pre-
ceding year to be adjusted as soon after January
first of each year as complete reports have been
received by the Commission. Sworn reports of
the compensation premium writings of the in-
surance carriers and sworn payroll statements of
the self-insurers for the preceding year, ending
December 31st, must be filed with the Industrial
Commission not later than March 1st, of each
year. The books of the Commission shall be
audited annually and copy of such audit shall be
furnished all parties among whom the expenses
of the Commission are prorated. All moneys
assessed against and that may be payable under
this Act by the insurance companies writing
compensation insurance in this State and the
employers permitted by the Commission to pay
compensation direct, shall be by the same paid into
the State treasury of Georgia, and by it held as
a special fund subject to the charge of salaries,
expenses, etc., as provided in this Act, to be paid
out by the State treasury only upon warrant
signed by the Governor and countersigned by
the Comptroller General. Acts 1920, pp. 167,
207; 1922, pp. 78, 79.
Editor's Note. — This section was amended in 1922 to pro-
vide an assessment for the support of the commission to
be collected from the insurance carriers and self-insurers,
instead of a flat per cent tax on the premium rate.
FOURTH TITLE.
Of Relations Arising from Other Contracts.
CHAPTER 1.
Of Partnership.
ARTICLE 1.
General Principles.
§ 3155. (§ 2626.) How created. — A partnership
may beL created either by written or parol con-
[ 831
§ 3156
GENERAL PRINCIPLES OF PARTNERSHIPS
§ 3160
tract, or it may arise from a joint ownership, use,
and enjoyment of the profits of undivided prop-
erty, real or personal.
Editor's Note.— This section is constantly construed with
§ 3158, and reference should be made to the cases cited
under that section. The sections are not inconsistent. See
Huggins v. Huggins, 117 Ga. 151, 43 S. E- 759. And it must
be continually borne in mind that there are different tests
as to the existence of partnerships inter se and partner-
ships as to third persons. See Floyd v. Kicklighter, 139
Ga. 133, 76 S. E. 1011.
This section is not exhaustive of what may create a part-
nership inter se. Floyd v. Kicklighter, 139 Ga. 133, 137,
76 S. E. 1011.
For an exhaustive and comprehensive treatment of part-
nership, see 9 Cum. Dig. 266; 10 Enc. Dig. 173.
Two Distinct Methods of Creation under This Section. —
Under this section if the parties, by written or parol con-
tract, expressly agree to become partners, a partnership
is created; further, if they enter into an agreement whereby
there is a joint ownership, use, or enjoyment of the profits
of undivided property, real or personal, a partnership arises
by implication. Butler v. Frank, 7 Ga. App. 655, 656, 67
S. E. 884.
And when a partnership is expressly created, there need
not necessarily be anything said about joint ownership of
property, or profits, or joint liability for losses. Huggins
v. Huggins, 117 Ga. 151, 155, 43 S. E- 759.
A charge as to the existence of a partnership is errone-
ous, if it fails to recognize the creation of a partnership
under the last clause of this section in a case which in-
volves the question of joint ownership. Gillis v. Estroff,
31 Ga. App. 501, 121 S. E. 339.
Effect on Tenure of Partnership Lands. — This section
seems to contemplate that lands may be partnership prop-
erty, but not in a more strict sense than they were for-
merly in this state. The members of a firm are tenants in
common in the partnership realty, and each member can,
for a debt of the partnership, incumber his own interest.
Sutlive v. Jones, 61 Ga. 676, 679.
Subsequent Acquisition of Joint Ownership by One Not
Originally a Partner. — One who originally contributed no
capital, but was to receive a part of the profits as com-
pensation for his services, then permits a portion of such
profits to remain in the business as firm assets thereby
acquires a joint ownership in the undivided property, and
becomes a partner within the meaning of the last clause
of this section. Huggins v. Huggins, 117 Ga. 151, 43 S.
E. 759.
§ 3156. (§ 2627.) Extent of partnership.— As
among partners, the extent of the partnership is
determined by the contract and their several in-
terests. As to third persons, all are liable, not
only to the extent of their interest in the part-
nership property, but also to the whole extent of
their separate property.
See generally, 10 Enc. Dig. 191; 9 Cum. Dig. 281. As to
effect of judgment against partnership, see § 5592.
§ 3157. (§ 2628.) Open partner, etc. — An os-
tensible partner is one whose name appears to
the world as such, and he is bound, though he
have no interest in the firm. A dormant or secret
partner is one whose connection with the firm is
really or professedly concealed from the world.
See 10 Enc. Dig. 217. As to dissolution and notice thereof,
see § 3163.
This section recognizes the fact, that one may be bound
as a partner, though he has no interest. But he is liable
as a partner only to those persons who have acted on
the faith of the truth of the appearance. American Cot-
ton College v. Atlanta Newspaper Union, 138 Ga. 147,
149, 74 S. E. 1084.
One who tacitly permits himself to be held out to the
public as a partner, though he in fact has no interest
in the partnership, will be estopped from denying his
connection with the firm, and will be bound, where the
opposite party was misled by the putative status and
acted thereon. Shapleigh Hdw. Co. v. McCoy, 23 Ga.
App. 265, 98 S. E. 102. See also Robert v. Curry Gro-
cery Co., 18 Ga. App. 53, 88 S. E. 796.
When once established, the existence of a partnership
is presumed to continue until notice of dissolution is
given. Brady v. Phillips Mule Co., 27 Ga. App. 444,
108 S. E- 809. Cited in Daniel v. Bank of West Point,
147 Ga. 695, 698, 95 S. E. 255.
§ 3158. (§ 2629.) What constitutes a partner-
ship.— A joint interest in the partnership prop-
erty, or a joint interest in the profits and losses
of the business, constitutes a partnership as to
third persons. A common interest in profits
alone does not.
For full treatment, see 9 Cum. Dig. 271; 10 Enc. Dig.
180.
Editor's Note. — The rule in Georgia on the subject of
partnerships is peculiar. In England, since the decision
of Cox v. Hickman, 8 H. L,. Cas. 268, and in America
generally, following this decision, there is little distinc-
tion between partnerships inter se and partnerships as
to third parties. But in Georgia the common law wasj
adopted as it existed before, Cox v. Hickman, and as a
consequence there is a very marked distinction.
A discussion of this situation will be found in Floyd
v. Kicklighter, 139 Ga. 133, 76 S. E. 1011.
Numerous examples will be found in the reported cases]
of the application of this section to particular agreements. J
See 10 Enc. Dig. 180; 9 Cum. Dig. 271. The general rules
to be derived therefrom are set out below.
This section is declaratory of the law existing before!
its adoption. Brandon & Dreyer v. Conner, 117 Ga. 759,!
45 S. E. 371; Clegg v. Lyons, 30 Ga. App. 482, 485, 118 S.f
E. 432.
It was not intended by the code to change the well-
settled rule, that if parties go into an adventure, one
furnishing money or stock and the other skill or labor,
and to share the net profits, they are partners, since it
follows that in such a case they have a joint interest in|
the profits, as contra -distinguished from a common inter-]
est, which would not constitute such a relation. Camp
v. Montgomery, 75 Ga. 795, 798; Sankey v. Columbus Iron
Works, 44 Ga. 228.
Joint and Common Interest Distinguished. — Under this
section a joint interest is that of an owner, who has a
right to dispose of the profits, and that makes him a
partner; but a common interest in the profits confers no
title jointly with the other, and gives no power to control
and dispose of the profits as the owner. Camp v. Mont-;
gomery, 75 Ga. 795, 798; Sankey v. Columbus Iron Works, 44
Ga. 228; South Carolina, etc., R. Co. v. Augusta South-
ern R. Co., 107 Ga. 164, 33 S. E. 36.
According to this section, a joint interest in the profits
of a business involves joint ownership, while a common
interest negatives joint ownership by the interested par-
ties, and implies that one of them, at least, has no own-
ership of the profits whatever, and is therefore no part-
ner. Phillips v. Trowbridge Furniture Co., 92 Ga. 596, 20
S. E- 4.
Extent of Joint Interest. — This section does not require
that there should be a joint interest in both the partner
ship property and the profits and losses of the business,
but simply a "joint interest in either. Gray Bros
Blasingame, 110 Ga. 34T/ 345^ 35 S. E. 653.
Where Interest on Profits Is "Merely Compensation.— A
contract stipulating that one of/ the parties thereto • shall
receive as compensation for certain services a half of the
profits of the business to be conducted, and shall not pro-
vide any of the assets nor be bound for any of the losses
is not a contract of partnership. Falk v. LaGrange Cigar
Co., 15 Ga. App. 564, 84 S. E. 93.
Necessity for Agreement as to Profits and Losses. — It
is not necessary in every case, to constitute a partnership,
that there must be an agreement to share the profits and
losses. Powell v. Moore, etc., Co., 79 Ga. 524, 526, 4 S
E. 383.
Under this section if two or more persons put into an
enterprise property, money, or other things of value, other!
than mere personal services, upon an agreement that they
shall each have an interest in the profits as such — that the
earnings on the investment shall determine the extent of
the profits, if any, to be received — it is a partnership. It
is not necessary to specify as to the liability for the losses
in such cases, for if the business venture proves unsuc-
cessful or unprofitable, the loss occurs as the inevitable
concomitant. Butler v. Frank, 7 Ga. App. 655, 657, 67 S.
E- 884.
Landlord and Tenant at Partners. — A contract may cre-
ate the dual relation of landlord and tenant and of part-
ners. Maynard v. Jackson, 159 Ga. 20, 124 S. E. 892.
§ 3159. (§ 2630.) Time of commencement. — I!
no time, is specified for the commencement of the
partnership, it commences immediately.
§ 3160. (§ 2631.) Death of a partner as it afc
fects continuance. — If the contract specifies the
[832]
3161
GENERAL PRINCIPLES OF PARTNERSHIPS
§ 3166
jrm for which the partnership is formed, it will
ontinue for that time, or till the death of one
artner. If it is desired to continue notwith-
tanding the death of a partner, it must be so
oecified.
§ 3161. (§ 2632.) Duration and dissolution. — If
lere is no agreement as to the time of continu-
nce, the partnership is at will, and may be dis-
Dlved at any time by any partner on giving
iree months notice to his copartners.
§ 3162. (§ 2633.) How it is dissolved. — Every
artnership is dissolved at any time by the mu-
ial consent of the parties, by the death, insanity,
r conviction for felony of one of the parties, by
le extinction of the business for which it was
Drmed, or by such misconduct of either partner
s will justify a court of equity to decree a dis-
Dlution.
See 9 Cum. Dig. 296; 10 Enc. Dig. 230. Quoted in Ben-
ett v. Watson, 31 Ga. App. 367, 120 S. E. 802.
§ 3163. (§ 2634.) Notice of dissolution.— The
issolution of a partnership by the retiring of an
stensible partner must be made known to cred-
ors and to the world. By the retiring of a
ormant partner, it must be made known to all
•ho had knowledge of his connection with the
rm.
For full treatment see 10 Enc. Dig. 212; 9 Cum. Dig.
S8.
What Creditors Included. — The word "creditors," as em-
loyed in this section, is not limited to persons who were
[■editors at the time of the dissolution. A person who
ad previously sold goods and given credit to the firm
uring its continuance was within its meaning. Bush v.
IcCarty Co., 127 Ga. 308, 56 S. E- 430. See also Mims v.
irook, 3 Ga. App. 247, 59 S. E- 711.
Notice to Agent. — Notice may be given to an agent of
le creditor. Bennett v. Watson, 31 Ga. App. 367, 120
. E. 802; Franklin Buggy Co. v. Carter, 21 Ga. App. 576,
4 S. E- 820.
Not Applicable to Individual Creditors. — This section ap-
lies only to the creditors of the partnership, and not to
lie creditors of an individual partner. First Nat. Bank
. Wade, 25 Ga. App. 132, 135, 102 S. E. 836.
Notice to Customer Who Was Not Creditor. — Personal
otice is not necessary as to one who had never been a
reditor but had only purchased goods from the firm,
kefhngton v. Daniel, 18 Ga. App. 262, 89 S. E- 458; Askew
. Silman, 95 Ga. 678, 22 S. F. 573.
Sufficiency of Notice. — Under this section the notice
diich a creditor has to have is actual. The world would
e bound by such notice as a publication in a public ga-
ette. Fwing v. Trippe, 73 Ga. 776, 777.
As to the notice which must be given to the world-; no
lflexible rule can be laid down. Fair and reasonable pub-
cation in a public gazette circulated in the locality in
/hich the business of the partnership has been conducted
s generally sufficient; and any means of fairly publishing
he fact of such dissolution as widely as possible, in order
o put the public on its guard, are proper to be consid-
red on the question of such notice. Bush v. McCarty
W, 127 Ga. 308, 56 S. F- 430; Askew v. Silman, 95 Ga. 678,
2 S. E. 573.
Who Is a Dormant Partner. — A partner is dormant,
vithin this section, if his name does not appear in the
irm name. Austin v. Appling, 88 Ga. 54, 13 S. E. 955.
§ 3164. (§ 2635.) Effect of dissolution.— A dis-
olution puts an end to all the powers and rights
esulting from the partnership to the partners,
■xcept for the purpose of a general account and
rinding up the business. As to third persons, it
ibsolves the partners from all liability for future
•ontracts and transactions, but not for the trans-
tctions that are past.
For full treatment, see 10 Enc. Dig. 231.
In General. — Under this section, after dissolution, a part-
ler has no power to bind the firm by a new contract, nor
o revive one for any cause extant, nor to renew or con-
Ga. Code — 27 [ 833
tinue an existing liability, nor change its dignity or its
nature. Louderback, etc., Co. v. Lilly, 75 Ga. 855, 856.
One partner can not, therefore, execute the partnership
note for an unpaid firm debt. Bennett v. Watson, 31 Ga.
App. 367, 120 S. E. 802.
And dissolution by operation of law ends all executory
contracts. Lesser v. Gray, 8 Ga. App. 605, 609, 70 S. E.
104.
Liability in Tort. — Where conversion is committed by a
surviving partner, whose firm received goods for storage,
the firm would not be liable for such tort by the surviv-
ing partner. Blanchard v. Farmers State Bank, 158 Ga.
780, 124 S. E. 695.
Liability on Past Transactions. — Under this section, the
dissolution of a partnership does not absolve the pytners
from, liability upon past transactions. First Nat. Bank
v. Cody, 93 Ga. 127, 147, 19 S. E. 831.
Partnership Preserved for Dissolution — Renewal.— A mer-
cantile partnership may sell its entire stock of goods and
retire from active business and Estill preserve its partner-
ship entity for purposes of liquidation; and where such a
partnership did both, a notice that the "store" had been
"sold out," given by a partner to one of its creditors during
the existence of the partnership as above indicated and be-
fore the creditor took a note executed in its name by an-
other partner in renewal of a partnership debt, was insuffi-
cient as notice to the creditor of a dissolution of the part-
nership, even if the sale amounted to such a dissolution.
Williams v. Madison County Bank, 33 Ga. App. 507, 126
S. E.. 895.
The partner not in fact executing such renewal note is
nevertheless bound thereon in the absence of express no-
tice to the creditor of objection by him to the execution of
the renewal note. Williams v. Madison County Bank, 33
Ga. 507, 126 S. E. 895.
§ 3165. (§ 2636.) False partner. — No partner-
ship may lawfully insert in their firm name or
style the name of the individual not actually a
copartner, nor continue in such firm name or
style the name of a retired partner. And
each member of the firm violating this pro-
vision shall forfeit the sum of one hundred dol-
lars for every day's violation, to be recovered
by any person who may prosecute for the same.
Acts 1837, Cobb, 588.
§ 3166. (§ 2637.) Denial by defendant.— Part-
ners suing or being sued in their firm name, the
partnership need not be proved unless denied by
the defendant, upon oath, on plea in abatement
filed. Act 1841, Cobb, 590.
See 9 Cum. Dig. 308; 10 Enc. Dig. 243.
Character of Plea. — A plea denying partnership is a plea
in bar although sworn to, and not a dilatory plea. Long
v. McDonald, 39 Ga. 186, 187, 190. See also Solomon &
Son v. Creech, 82 Ga. 445, 9 S. E- 165. This holding is disap-
proved in part, in Crockett & Co. v. Garrard & Co., 4
Ga. App. 360, 61 S. E. 552.
Sufficiency of Denial. — A simple denial of a paragraph al-
leging that the defendant is a partnership composed of cer-
tain persons is not equivalent to a plea of no partnership.
Crockett & Co. v. Garrard & Co., 4 Ga. App. 360, 61 S.
E. 552. Followed in Wiggins v. McCalla, 20 Ga. App. 739,
93 S. E. 231.
Amending the Plea. — A plea not denying partnership can
not, by an unsworn amendment, be made to deny the ex-
istence thereof. Waterman v. Glisson, 115 Ga. 773, 42 S.
E. 95.
Effect on Burden of Proof. — A plea of non est factum, or
of non -partnership, sworn to by the defendant "to the best
of his knowledge and belief," does not cast the onus upon
the plaintiff. Martin v. Lamb & Co., 77 Ga. 252, 3 S. E- 10.
Partnership Alleged by Amended Petition. — This section
applies where the original petition alleged that the plain-
tiff was a corporation, and the partnership was alleged in
an amendment to the petition. National Pencil Co. v. Pin-
kerton's Nat. Detective Agencv, 19 Ga. App. 429, 91 S. E.
432.
Waiver by Failure to Raise Point. — Where defendant
proves by uncontradicted evidence, which is not objected
to, that no such partnership as alleged in the petition ex-
isted at the time that the plaintiff's cause of action arose,
a verdict finding against the alleged firm, in the absence
of an appropriate amendment to the petition, should be set
aside and a new trial granted, notwithstanding, the de-
fendant's omission to file a verified plea of no partnership.
Howard & Son v. Cowan, 17 Ga. App. 760, 88 S. E. 695.
§ 3167
LIABILITY OF PARTNERS BETWEEN THEMSELVES
§ 3176
Process of garnishment is a suit within the intent and
meaning of this section. Blakeney v. Franklin, 26 Ga. App.
305, 105 S. E. 872.
Suit in Firm Name. — This section implies that partners
may be sued in the firm name; even declared upon by that
name alone. If so declared upon, and if the firm answer
to the name by which they are sued, it would be too late
to deny the name and dismiss the suit or plead in abate-
ment. DeLeon v. Heller, etc., Co., 77 Ga. 740, 743.
§ 3167. (§ 2638.) Suits by and against.— Judg-
ments may be entered up and execution issue in
the name of the firm or against a firm. And serv-
ice of process on one partner, with a return of
non est inventus as to the others, shall authorize
a judgment against the firm binding all the firm
assets and the individual property of the one
served. Act 1840, Cobb, 589.
Cross References. — For full treatment of actions by and
against partnerships, see 10 Fnc. Dig. 238; 9 Cum. Dig.
302. As to effect of judgment, see § 5592. As to suits on
written partnership obligation where one obligor dies be-
fore suit, see § 5597. As to form of judgment or execution,
see § 5941.
Effect Where All Are Served. — Although this section does
not apply where all are served, by implication, in such case,
the property of each is bound. Parler v. Johnson, 81 Ga.
254, 7 S. F. 317.
Judgment on Bond by One Partner. — When in defense of
an action instituted against a partnership a bond is per-
mitted or required, any partner may in the name of the
partnership execute the bond. But the judgment thereon
binds only the property of the partnership and of the mem-
ber who signed, not the individual property of the other
partners. Taylor v. Felder, 3 Ga. App. 106, 110, 59 S. F-
328.
Denial That Party Served Is a Partner. — In a suit against
a partnership, where service of process was made on a
partner, who appeared and defended the suit for the firm,
the court did not err in refusing to dismiss the petition on
the ground that he was in fact not such a partner. Guy
& Montgomery v. Kaulman, 11 Ga. App. 350, 75 S. E- 269.
Process of garnishment is a suit within the intent and
meaning of this section. Blakeney v. Franklin, 26 Ga. App.
305, 105 S. F. 872.
Where a partnership is an agent, the partnership may
be served by service upon one of the partners, and such
service upon the partnership is service upon the principal.
Render v. Hartford Fire Ins. Co., 33 Ga. App. 716, 127 S.
F. 902.
§ 3168. (§ 2639.) Executing bond.— In all legal
proceedings wherein it becomes necessary for
partners to give bond, anjr one of the partners
may execute such bond in the firm name. Act
1838, Cobb, 589.
For similar provision applicable to appeals and garnish-
ment, see §§ 5005, 5267.
A bond executed under this section does not bind the
individual partners who do not sign. Taylor v. Felder, 3
Ga. App. 106, 119, 59 S. F. 328.
ARTICLE 2.
Rights and Liabilities of Partners Among
Themselves.
§ 3169. (§ 2640.) Interest of each. — Unless
otherwise provided in the agreement, partners
are equally interested in all the stock or property
brought into the business, it matters not by
which; partners are equally entitled to share the
profits, and equally bound to pay the losses.
§ 3170. (§ 2641.) Contribution in case of insol-
vent partner. — If one of several partners proves
to be insolvent, each ' partner is bound to con-
tribute according to his interest to sustain the
pro rata loss of such insolvent in the debts of the
firm.
See 10 Fnc. Dig. 191; 9 Cum. Dig. 281. As to contribu-
tion inter se in general, see § 4588.
§ 3171. (§ 2642.) Good faith inter se. — The
strictest good faith is required among partners,
and that which would not amount to fraud as to
third persons may be such a violation of this
faith as to justify a court of equity to compel a
partner to give up any advantage thus obtained.
§ 3172. (§ 2643.) Power of each partner. —
Every partner has a right to examine into the
affairs of the firm, and, unless otherwise agreed,
to have joint possession of its effects, to collect
and apply its assets, to contract or otherwise
bind the firm in matters connected with its busi-
ness, and to execute any writing or bond in the
course of the business; at no time transgressing
the privileges of other partners or seeking in bad
faith to evade or violate their wishes.
Cross References. — See § 3164. For full treatment, see
10 Fnc. Dig. 194; 9 Cum. Dig. 283. As to authority to re-
ceive payment, see § 4311.
Negotiable Paper. — Under this section a member of a
non-commercial or non-mercantile partnership may bind
the other members of the firm by negotiable papers signed
in the firm name. Haskins v. Throne, 101 Ga. 126, 127, 28
S. E. 611. See also, Griffin v. Colonial Bank, 7 Ga. App.
126, 66 S. F. 382. See § 4294 (41).
Note under Seal. — One member of a commercial partner-
ship can bind it by signing its name to a promissory note
under seal, in the course of the business of the partner-
ship. Merchants, etc., Bank v. Johnston, 130 Ga. 661, 61
S. E- 543. See also Swygert Bros. v. Bank, 13 Ga. App.
640, 79 S. F. 759.
Mortgage. — One partner can not execute a mortgage
binding the assets of the firm against the protest of a fel-
low-member. Fidelity Banking, etc., Co. v. Kangara Val-
ley Tea Co., 95 Ga. 172, 177, 22 S. F. 50.
Sales.— A bill of sale executed by one member of a part-
nership, conveying partnership assets to secure an existing
debt of the firm, passes title to the creditor, though the
other partner has no knowledge of the execution or exist-
ence of the instrument. Denton Bros. v. Hannah, 12 Ga.
App. 494, 77 S. F. 672.
No allegation that a particular sale is within the scope
of the business of a partnership is necessary, in an action
on a contract of sale made in the firm name. Matthews
v. American Textile Co., 23 Ga. App. 675, 99 S. F. 308.
Retraxit. — Neither partner has a right to enter a retraxit
for the firm without the express consent of the other part-
ner. Harvey v. Boyd, 24 Ga. App. 561, 101 S. F. 708.
§ 3173. (§ 2644.) Introducing new partner. —
No partner, by assigning his interest or other-
wise, can introduce a new partner without the
consent of the others, unless such power is re-
served in the contract.
§ 3174. (§ 2645.) Incoming partner bound for
debts, when. — An incoming partner is not bound
for the old debts of the firm in the absence of an
express agreement, on sufficient consideration,
to assume the old indebtedness.
..See generally, 10 Fnc. Dig. 191.
§ 3175. (§ 2646.) Power of majority.— Unless
otherwise stipulated, a majority of the partners
must control on any question within the scope
of the partnership business; but outside of such
business, any partner may veto the use of the
partnership assets.
§ 3176. (§ 2647.) Surviving partner.— The sur
viving partner, in case of death, has the right to
control the assets of the firm to the exclusion oi
the legal representatives of a deceased partner,
and he is primarily liable to the creditors of the
firm for their debts. But where copartnerships
have been, or shall be, dissolved by the death of
one or more partners, and the debts of the firm
are all paid, then the assets of the firm, as far as
possible, may be divided in kind, between surviv-
[834]
§ 3177
LIABILITY OF PARTNERS TO THIRD PERSONS
§ 3184
ing copartners and the representatives of the
:lead copartner, by three disinterested appraisers,
:hosen by the parties as arbitrators, or appointed
Dy the ordinary of the county where the surviv-
ors reside, either in term or vacation, on appli-
:ation of either party, said appraisers to be
>worn to make fair appraisements and divisions
:o the best of their ability; and after such divi-
sion, the representatives of the dead partners
mall have the right to sue in their own names
ipon all choses in action assigned to them in the
livision. Acts 1869, p. 132.
For full treatment, see 10 Enc. Dig. 210; 9 Cum. Dig.
.'86. As to notice taken of this situation in inventories of
issets of deceased partner, see § 3986.
One year is a reasonable time within which to settle the
>artnership accounts. Huggins v. Huggins, 117 Ga. 151,
13 S. E. 759.
Liability for Delay. — The refusal of the administrator of
i deceased partner to accept a settlement is no excuse for
lelay. The surviving partner should settle the debts and
Droceed as provided by this section. Huggins v. Huggins,
17 Ga. 151, 43 S. E. 759.
If a surviving partner continues the business beyond the
ime allowed by law, the final account with the adminis-
rator should be stated as of the day when the settlement
mould have been made, the administrator being entitled
o the sum then due, with interest; or at his option he
nay take such principal sum with his proportion of the
n-ofits. Huggins v. Huggins, 117 Ga. 151, 43 S. E- 759.
Death of Surviving Partner. — Under this section the ad-
ninistrator of a deceased "surviving partner," may collect
md distribute partnership assets and this includes choses
n action. Juhan v* Juhan, 104 Ga. 253, 30 S. E. 779.
Effect of Failure to Sue Surviving Partner. — Whe/e no
■eason appears why suit was not brought against the sur-
viving partner, and the action is barred as to him, he be-
ng primarily liable, this delay on the part of the plain-
;iff will discharge the administrator of the deceased part-
ler. McNaught & Co. v. Bostick, 71 Ga. 782.
Powers of Surviving Partner. — A surviving partner has
he entire title and sole control of the property, and rep-
resents the power of the former partners. August v. Cal-
oway, 35 Fed. 381, 383.
The surviving partner has, at least in case of insolvency,
n order to wind up the power to transfer property to an
tssignee for the benefit of the partnership creditors. Au-
gust v. Calloway, 35 Fed. 381, 383.
A surviving partner can not make an assignment with
•references unless both he and the partnership are insolvent.
August v. Calloway, 35 Fed. 381.
Land conveyed to a firm but never used in the partner
ship business, can not, under this section, be recovered in
;jectment by the surviving partner, the partnership having
)een dissolved before the death of his copartner. Baker v
VTiddlebrooks, 81 Ga. 491, 8 S. E. 320.
§ 3177. (§ 2648.) Powers of surviving partner
is to personalty. — Title to personal property
rests in the surviving partners, who have the
ight to dispose thereof for paying the debts and
naking distribution.
§ 3178. (§ 2649.) Power of survivor as to real
;state. — In equity real estate of the firm is con-
sidered personal property to the extent neces-
sary to pay debts. The surviving partner can
lispose of the entire equitable interest therein,
md the purchaser may compel a conveyance
rom the heirs of the deceased partner.
This section has general application to "real estate of
:he firm," and is not limited to real estate used in the
prosecution of the business of the partnership. Bank v.
McGarrah, 120 Ga. 944, 949, 48 S. E. 393.
ARTICLE 3.
Rights and Liabilities of Partners to Third
Persons.
§ 3179. (§ 2650.) Secret stipulations.— Third
[ 83
persons arc bound by no stipulations among the
partners themselves, unless actual notice of such
stipulation be proved prior to their actions.
See 10 Enc. Dig. 202.
This section has been applied to agreements for dissolution
and agreements to incorporate. St. Louis Lamp Co. v.
Marshall, 78 Ga. 168, 1 S. E. 430; Michael Bros. Co. v. Da-
vidson, 3 Ga. App. 752, 60 S. E- 362.
§ 3180. (§ 2651.) Bound by acts of partner.—
All the partners are bound by the acts of any
one, within the legitimate business of the part-
nership, until dissolution or the commence-
ment of legal process for that purpose, or express
notice of dissent to the person about to be con-
tracted with.
For full treatment, see 10 Enc. Dig. 194; 9 Cum. Dig. 283;
2 Enc. Dig. 360; 2 Cum. Dig. 783. As to payment to part-
ner, see § 4311.
Statements or admissions made by a partner as such,
and with reference to matters connected with the business,
are binding upon the partnership. Ward-Truitt Co. v.
Nicholson, 23 Ga. App. 672, 99 S. E. 153.
Contract of Sale. — A partnership will be bound on a con-
tract of sale made by one partner although the other part-
ners sell the same goods to another person. Bass Dry
Goods Co. v. Granite City Mfg. Co., 113 Ga. 1142, 39 S.
E- 471.
Waiver of Homestead. — Under this section, one partner
can not waive the individual right to homestead and ex-
emption, under the law, in real estate belonging to the
other partner, for partnership debts. Winkles & Co. v.
Simpson Grocery Co., 138 Ga. 482, 484, 75 S. E- 640.
Negotiable Paper. — Prima facie, the execution of a ne-
gotiable note in the name of the partnership by one part-
ner is within the scope of the partnership business, and
binds the firm and individual members thereof. Griffin v.
Colonial Bank, 7 Ga. App. 126, 66 S. E- 382, citing this sec-
tion.
Payment to One Partner. — One partner may receive pay-
ment of a debt to the firm, and such payment will bind
the firm. Brady v. Phillips, 27 Ga. App. 444, 108 S. E. 809,
citing this section.
§ 3181. (§ 2652.) Duty of agent.— An agent of
the partnership is generally bound to obey each
partner. If contradictory instructions are given
by different partners, he is not bound to obey
either, but should act for the best interest of the
partnership.
§ 3182. (§ 2653.) Matters outside of partner-
ship.— Third persons acting with a partner in a
matter not legitimately connected with the part-
nership have no right against the firm or any
other member.
For full treatment, see 10 Enc. Dig. 196; 9 Cum. Dig. 283.
§ 3183. (§ 2654.) Lending money to partner. —
A person lending money to a partner for the
firm is not bound to see to its application, but if
he knows, or has reasonable grounds to suspect
that it is intended to be applied to other pur-
poses than the business of the firm, he can not
recover it from the partnership.
Grounds for Suspicion. — The mere fact that a partner ne-
gotiating a loan on behalf of his partnership had previ-
ously applied to the same person for a loan, on behalf of a
corporation in which he was interested, is not sufficient to
cause the lender to suspect that the money borrowed for
the partnership would be used in the business of the cor-
poration. Bishop v. Bank of Calhoun, 7 Ga. App. 432, 67
S. E. 119.
§ 3184. (§ 2655.) Purchasing from partner. —
Third persons acquire no title to partnership
assets by purchase from one member, when
notice or a reasonable ground of suspicion is
known to them that the partner is misapplying,
or seeks to misapply such assets.
Under this section any person receiving firm property
5]
§ 3185
LIABILITY OF PARTNERS TO THIRD PERSONS
§ 3189
in payment of an individual debt of one of the partners,
with notice or reasonable ground of suspicion that the part-
ner is misapplying such assets can not be an innocent pur-
chaser, and is liable for such property. Clarke v. Farrell
& Co., 80 Ga. 622, 624, 6 S. E. 20.
The rule that a partner can not, in payment of his in-
dividual debt to a third person, dispose of what belongs
to the partnership applies not "only to property but to labor
and services performed on the part of the partnership.
Lovelace v. Reliable Garage, 33 Ga. App. 289, 125 S. E-
877.
§ 3185. (§ 2656.) Indorsements, etc. — A guar-
anty or an accommodation indorsement is not
within the legitimate business of ordinary part-
nership.
See 2 Enc. Dig. 360; 2 Cum. Dig. 784.
An accommodation indorsement by one partner may be
ratified, but the plaintiff would have the burden of proof
of ratification. Sibley v. Amer. Exch. Nat. Bank, 97 Ga.
126, 25 S. E- 470. See also American Exch. Nat. Bank v.
Georgia Constr., etc., Co., 87 Ga. 651, 13 S. E- 505.
§ 3186. (§ 2657.) Liability for fraud of one
partner. — All the partners are responsible to in-
nocent third persons for damages arising from
the fraud of one partner in matters relating to the
partnership.
' As to limited partnership, see § 3209.
Under this section the partnership is liable for the fraud
of a partner even though such fraud be also a tort. Al-
exander v. State, 56 Ga. 478. 479. See also Thompson v.
Harris, 7 Ga. App. 21.2, 66 S. E. 629.
§ 3187. (§ 2658.) For torts of partner or ser-
vant.— Partners are not responsible for torts
committed by a copartner. For the negligence
or torts of their agents or servant they are re-
sponsible under the like rules with individuals.
See 10 Enc. Dig. 192; 9 Cum. Dig. 282.
Editor's Note.— This section is a marked departure from
the rule in most jurisdictions and does not seem to be
founded on sound principle. It disregards, entirely, the
well settled rule that a partner is an agent of the partner-
ship. It is contrary to the rule of the uniform Partnership
Act.
As said in Corbett v. Connor, 11 Ga. App. 385, 75 S. E-
492: "The language is a statutory declaration that any
tort committed by one partner is beyond the scope of the
partnership business and does not bind the partnership."
And yet if the tort is committed by an agent instead of a
partner, the partnership is liable.
For instance, if partners engaged in a small grocery busi-
ness, should hire a driver of their delivery wagon, the part-
nership would be liable to a person injured by his negli-
gent driving. But apparently it would not be liable if a
partner were driving.
Tort Joined in by All Partners. — A partnership is liable
as such in an action for malicious prosecution, when the
same was instituted in furtherance of the partnership's
interests and bv direct authority of all its members. Page
v. Citizens Banking Co., Ill Ga. 73, 36 S. E- 418.
If all the partners join in the commission of a tort within
the scope of the partnership business, the partnership, as
well as the individual members of the firm, might be lia-
ble. Corbett v. Connor, 11 Ga. App. 385, 75 S. E- 492.
Not Liable by Ratification. — The fact that all the part-
ners approved of a tort committed by one of their number
can not make the partnership liable for such tort upon the
idea of ratification. Ozborn v. Woolworth, 106 Ga. 459,
460, 32 S. E- 581.
Partners Not Agents within Section. — The latter part of
this section, was manifestly intended to apply to "agents
or servants" who are not members of the partnership, and
not to the partners themselves. Ozborn v. Woolworth, 106
Ga. 459, 460, 32 S. E. 581. For application of this part of
the section, see Malone v. Hammond, 6 Ga. App. 119, 64
S. E- 666.
Partnership Liable to Servant.— The rules of law applica-
ble to the relationship of master and servant where there
is a failure on the part of the master to perform the non-
delegable, absolute duty to safeguard the servant apply to
partnerships. Zakas Bakery v. Lipes, 27 Ga. App. 712, 109
S. E. 537.
False Imprisonment. — Where a member of a partnership
has a person arrested on a charge of larceny of partnership
effects, and the person so arrested sues the partnership
for false imprisonment, the partnership, under this section
is not liable for these acts of the individual partner. Mar-
tin v. Simpkins & Co., 116 Ga. 254, 42 S. E. 483.
Libel and Slander.- — A partnership is not liable for slan-
der or libel committed by one partner even though for the
benefit of the partnership. Goodrich v. Goldstein, 32 Ga.
App. 405, 406, 123 S. E- 754; Hendricks v. Middlebrooks Co.,
118 Ga. 131, 136, 44 S. E. 835.
Where Firm. Acts as Agent. — Where a member of a part-
nership breaches the duty owing by it to a principal of
which the partnership is an agent, the principal, in a suit
against the partnership for such breach of duty, in the
event he establishes his case, will be entitled to a judg-
ment not only against the member who committed the
breach, but also against the partnership and all the indi-
vidual members thereof who are served. Render v. Hart-
ford Fire Ins. Co., 33 Ga. App. 716, 127 S. E- 902.
§ 3188. (§ 2659.) Power after dissolution. —
After dissolution, a partner has no power to bind
the firm by a new contract, or to revive one al-
read}^ for any cause extinct, nor to renew or con-
tinue an existing liability, nor change its dignity
or its nature.
Cross References. — For full treatment, see 10 Enc. Dig.
208; 9 Cum. Dig. 286. As to powers in general, see § 3164.
As to effect of new promise on statute of limitations, see
§ 4387.
Dissolution by death is within this section. Carter v.
Lipsey, 70 Ga. 417, 418.
Dissolution by Retirement. — -After dissolution of a part-
nership by the retirement of one of the partners, the con-
tinuing partner has no power to bind the retiring partner
by a new agreement, or, as to him, renew or continue a
liability of the firm. In such case the retiring partner
becomes a surety to his copartner as the debts of the part-
nership before dissolution. Maclntyre v. Massey, 11 Ga.
App. 458, 75 S. E. 814.
Discharge of Other Partners. — If a creditor with knowl-
edge of dissolution accepts a note made by one of the for-
mer partners in the firm name, the other members who
do not consent are discharged. Minis v. Brook, 3 Ga. App.
247, 59 S. E. 711; First Nat. Bank v. Cody, 93 Ga. 127, 128,
19 S. E. 831; First Nat. Bank v. Ells, 68 Ga. 192.
A creditor of a partnership, with notice of its dissolu-
tion and with notice of an agreement by the continuing
partner to assume the debts of the partnership, is bound
thereafter to accord to the retiring partner all the rights of
a surety. Maclntyre v. Massey, 11 Ga. App. 458, 75 S.
E- 814.
If, without the knowledge or consent of the retiring part-
ner, the creditor of the partnership, upon a sufficient con-
sideration, extends the time of payment of the firm in-
debtedness, the retiring partner is released from the in-
debtedness, and the creditor must thereafter look only to
the firm assets and to the individual assets of the contin-
uing partner. Maclntyre v. Massey, 11 Ga. App. 458, 75
S. E. 814.
The receipt from the continuing partner by the holder
of the partnership note of any part of the principal of the
note or of any part of the interest in advance of the time
when due, without the knowledge or consent of the retiring
partner, as a consideration for an extension of the time of
payment of the note, would amount in law to a release of
the latter's liability on the note. Maclntyre v. Massey, 11
Ga. App. 458, 75 S. E- 814.
Giving Firm Draft. — Under this section, after dissolution
one partner can not endorse a new draft and substitute it
for an old one enclosed by the firm. First Nat. Bank v.
Ells, 68 Ga. 192.
Other Partners May Be Estopped. — Although after dis-
solution there is no power in one partner to execute a note
in the firm name, the other surviving partners may be es-
topped by acquiescence. Roberts & Co. v. Barrow, 53 Ga.
314, 315.
Quoted in Maclntyre v. Massey, 11 Ga. App. 458, 460, 75
S. E. 814.
§ 3189. (§ 2660.) Disposition of assets among
creditors. — When a partnership is insolvent, and
one of the partners is deceased insolvent, the
creditors of the partnership, in equal degree with
individual creditors, can not claim to share in
the individual assets of the deceased partner un-
til the individual creditors shall have first re-
836 ]
§ 3190
LIMITED PARTNERSHIP
§ 3196
ceived upon their debts such a percentage from
the individual assets as such partnership credi-
tors have received from the partnership assets.
See generally, 10 Knc. Dig. 225; 9 Cum. Dig. 295. Com-
pare § 4602 as to distribution of joint assets.
Editor's Note.— The rule announced in this section dif-
fers from the rule in most jurisdictions, in that individ-
ual assets are first applied to individual debts, only in so
far as partnership creditors have been first satisfied from
partnership assets. The rule is clearly explained in John-
son V. Gordon, 102 Ga. 350, 358, 30 S. D. 507.
Compared with Common Law Rule. — Partnership assets
must first satisfy partnership debts before individual debts,
or debts of a former partnership, can be paid. The con-
verse of this proposition is also true at common law. The
converse, but not the rule itself, has been modified in Geor-
gia by this section. Camp v. Mayer, 47 Ga. 414, 428.
Priorities of Several Debts Not Affected. — The rule laid
down by this section is simply a rule for the division of the
assets, firm and individual, into proper funds to be applied
respectively to firm and individual debts. The rights and
priorities of these several debts in and to payment out of
these funds is in nowise affected by this rule of division
of the estate into such funds. Johnson v. Gordon, 102 Ga.
350, 359, 30 S. E). 507.
Equity Will Not Divert Assets. — A court of equity will
not decree specific performance of a contract which would
divert assets from proper administration under this sec-
tion. Bagwell v. Bagwell, 72 Ga. 92.
Effect on Power to Prefer Creditor. — While this section
prescribes the mode of distribution of the assets of an in-
solvent firm when done by the law it does not limit the
power of a debtor to give legal preference to one creditor
over another. Princeton Mfg. Co. v. White, 68 Ga. 96.
Cited in Berckmans v. Tarnok, 151 Ga. 117, 122, 106 S.
E. 2.
§ 3190. (§ 2661.) Garnishment on partner's in-
terest.— The interest of a partner in the partner-
ship assets may be reached by a judgment credi-
tor by process of garnishment served on the firm,
and shall not be subject to levy and sale. The
lien on such interest shall attach from the date
of the judgment against the partner.
As to attachments, see § 5067.
Former Rule Changed. — This section changes the rule
that formerly existed. Holifield & Co. v. White, 52 Ga.
567; Willis v. Henderson, 43 Ga. 325, 326.
Effect of Dissolution. — The interest is not subject to levy
even after dissolution. Anderson & Co. v. Chenney, 51
Ga. 372.
Levy on Individual Property. — A judgment against a
named partnership composed of named individuals, in a
garnishment proceeding under this section is binding not
only as to the firm assets of the partnership, but as to the
individual property of any partner who had been served;
and an execution following the terms of such judgment was
leviable on the individual property of such a partner.
Blakeney v. Franklin, 26 Ga. App. 305, 105 S. E. 872.
ARTICLE 4.
Limited Partnership.
§ 3191. (§ 2662.) By whom formed, for what
purposes. — Limited partnership, for the trans-
action of any mercantile, commercial, mechani-
cal, manufacturing, mining, or agricultural busi-
ness within this State, may be formed by two or
more persons, upon the terms, with the rights
and powers, and subject to the conditions and
liabilities herein prescribed; but the provisions
of this Article shall not be construed to author-
ize any such partnership for the purposes of
banking or making insurance. Acts 1837, Cobb,
585.
§ 3192. (§ 2663.) How constituted.— Such part-
nerships may consist of one or more persons,
who shall be called general partners, and who
shall be jointly and severally responsible as gen-
[ 83
eral partners, and of one or more persons who
shall contribute in actual cash a specific sum as
capital to the common stock, who shall be called
special partners, and who shall not be liable for
debts of the partnership beyond the fund so con-
tributed by him or them to the capital, except as
hereinafter provided. Act L837, Cobb. 585.
§ 3193. (§ 2664.) Business, by whom trans-
acted.— The general partners only shall be au-
thorized to transact business, and sign for the
partnership, and to bind the same. Act 1837,
Cobb, 585.
§ 3194. (§ 2665.) Specifications of certificate-
Persons desirous of forming such partnership
shall make, and severally sign, by themselves or
attorney in fact, a certificate which shall con-
tain—
1. The name of the firm under which such
partnership is to be conducted.
2. The general nature of the business intended
to be transacted.
3. The names of all the general and special
partners inserted therein, distinguishing which
are general and which are special partners, and
their respective places of residence.
4. The amount of capital which each special
partner shall have contributed to the common
stock.
5. The period at which the partnership is to
commence, and the period at which it shall ter-
minate; and when made by such attorney in fact,
the power of the attorney duly authenticated
shall be recorded along with such certificate. Act
1837, Cobb, 585.
§ 3195. (§ 2666.) How acknowledged.— The cer-
tificate shall be acknowledged by the several
persons signing the same, or their attorney in
fact, before a judge of the superior court, ordi-
nary, or a justice of the peace, or notary public,
and such acknowledgment shall be certified by
the officer before the same is made. Act 1837,
Cobb, 585.
§ 3196. (§ 2667.) Certificate and power of at-
torney, when and where filed. — The certificate
and power of attorney in fact, so acknowledged
and certified, shall be filed in the office of the
clerk of the superior court of the county in which
the principal place of business of the partnership
shall be situated, and also be recorded by him
at large in a book to be kept for that purpose,
open to public inspection. If the partnership
shall have places of business situated in different
counties, a transcript of the certificate, and power
of attorney in fact, and of acknowledgment there-
of, duly certified by the clerk in whose office it
shall be filed, under his official seal, shall be filed
and recorded in like manner in the office of the
clerk of the superior court in every such county;
and the clerk for each and every registiw re-
quired by this Article shall be entitled to the sum
of five dollars. Act 1837, Cobb, 585.
As to salary of clerk and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-
tion or more, see § 6017 (5) ; counties having between 44,000
and 60,000 and from 70,000 to 150.000 population, see §
6017 (12); counties of from 60,000 to 70,000 population, see §
6017 (25)."
§ 3197
LIMITED PARTNERSHIP
§ 3204
§ 3197. (§ 2668.) Affidavit.— At the time of fil-
ing the original certificate, with the evidence of
the acknowledgment thereof, as before directed,
an affidavit or affidavits of the several general part-
ners shall also be filed in the same office, stating
that the sums specified in the certificate to have
been contributed by each of the special partners
to the common stock have been actually and in
good faith paid in cash, and a certified copy of
such certificate, power of attorney, and affidavits
shall be evidence in all courts and places what-
ever. Act 1837, Cobb, 586.
§ 3198. (§ 2669.) Informal partnerships. — No
such partnership shall be deemed to have been
formed until such certificate as is herein men-
tioned shall have been made, acknowledged, filed,
and recorded, nor until an affidavit shall have
been filed as above directed; and if any false
statement be made in such certificate or affidavit,
or if such partnership business be commenced
before such certificate or affidavit is filed, all the
persons interested in such partnership shall be
liable for all the engagements thereof as general
partners. Act 1837, Cobb, 586.
§ 3199. (§ 2670.) How published.— The part-
ners shall publish the terms of the partnership,
when registered, for at least six weeks immedi-
ately after such registry, in at least two news-
papers published in the county in which the place
of business is situated: Provided, there are two
newspapers there published; but if not, then in
one; and if no newspaper should be published in
the county in which the business is to be trans-
acted, the notice shall be published in the news-
paper in which the sheriff advertises; and if such
publication be not made within two months from
the filing of such certificate and affidavit, the
partnership shall be deemed general. Act 1837,
Cobb, 586; Acts 1873, p. 24.
§ 3200. (§ 2671.) Evidence of publication.— The
affidavits of the publication of such notice by the
printers, publishers, or editors of the newspapers
in which the same shall be published may be filed
in the office of the clerk of the superior court in
which the certificate has been filed, and shall be
evidence of the facts therein contained. Act
1837, Cobb, 586.
§ 3201. (§ 2672.) Renewal or continuance of
partnership. — Every renewal or continuance of
such partnership beyond the time fixed for its
duration shall be certified, acknowledged, and
recorded, and an affidavit of a general partner be
made and filed, and notice be given in the man-
ner herein required for its original formation;
and every such partnership which shall be other-
wise renewed or continued shall be deemed a
general partnership. Act 1837, Cobb, 586.
§ 3202. (§ 2673.) Alteration of names, etc.,
deemed a dissolution; continuation. — Except as
provided in this Section, every alteration made
in the names of the general partners, in the na-
ture of the business, or in the capital or shares
thereof contributed, held, or owned or to be con-
tributed held, or owned by any of the special
partners, or the death of any partner, whether
general or special, dissolves the limited partner-
ship, or if such partnership be continued, con-
stitutes such partnership a general partnership
in respect to all business transacted after such
alterations or death, unless the articles of part-
nership provide that in the event of the death of
a partner the partnership may be continued by
the survivors, in which case it shall be so con-
tinued with the consent of the personal repre-
sentatives of the deceased partner, and the per-
sonal representative may succeed to the partner-
ship rights of such deceased partner and continue
the business the same as if such partner had
remained alive. But any special partner may
from time to time increase the amount of capital
stock contributed, held, or owned by him, or one
or more special partners may be added to the
partnership, on actually paying in an additional
amount of capital, to be agreed on by the gen-
eral and special partners, and on filing in the
office of the clerk with whom the original cer-
tificate was filed an additonal certificate of the
general partners, in the partnership name veri-
fied by the oath of one of them, stating the in-
crease of capital stock, and by whom, and the
names and residences of such additional special
partners, and whether of full age, and the
amounts contributed by each to the common
stock, together with the affidavit of one or more
of the general partners stating that the amounts
specified in such additional certificates have been
actually and in good faith paid in cash; and such
alteration does not make the partnership general.
No additional publication of the terms of the
partnership, nor of the alteration thereof, is re-
quired in any of the cases provided in this Sec-
tion. Any special partner, or the legal represen-
tatives of any such special partner deceased,
may sell his interest in the partnership or any
portion thereof without working a dissolution
thereof or rendering the partnership general, if a
notice of such sale be filed within 10 days there-
after in the office of the clerk with whom the
original certificate of partnership was filed, and
the purchaser thereof thereupon becomes a
special partner, with the same rights as an origi-
nal special partner. Acts 1837, Cobb, 586; 1919,
pp. 96, 97.
Editor's Note. — This section was materially changed by
an amendment of 1919 (Georgia Laws, 1919, p. 96), the ef-
fect of which was to name several specific changes which
would effect a dissolution, namely, death of a partner, where
provision in the partnership articles permits continuation
by survivors, increase of stock of special partner, and sale
of special partner's interest after 10 days' notice.
§ 3203. (§ 2674.) Firm name.— The business of
the partnership shall be conducted under a firm
in which the names of the general partners only
shall be inserted without the addition of the
word "company," or any other general term; and
if the name of any special partner shall be used
in such firm, he shall be deemed a general part-
ner. Act 1837, Cobb, 587.
§ 3204. (§ 2675.) Suits.— Suits to be brought by
any partnership to be formed under this Code
shall be in the name or names of the general
partners only, and suit against such partnership
shall be brought against the general partners
only, except in cases where the special partners
shall be rendered liable as general partners, in
which cases suits may be brought against all the
partners jointly or severally, or any one or more
[ 838
§ 3205
LIMITED PARTNERSHIP
§ 3214
of the special partners may be sued in the same
action with the general partners. Act 1837,
Cobb, 587.
§ 3205. (§ 2676.) Privileges of special partner. —
A special partner may at any time examine into
the conditions and progress of the partnership
concerns, may advise as to the management of
the same, and, when the general partner or part-
ners may be rendered incompetent to act on ac-
count of illness, temporary absence, or other
cause, may direct and control the business of the
partnership as a general partner may do: Pro-
vided such special partner, before assuming such
direction and control, shall cause to be placed in
a position easily to be seen by all parties dealing
with said partnership a placard or sign showing
who are the general and who the special partners
constituting such partnership; otherwise the
special partner or partners shall not transact any
business on account of the said partnership, nor
be employed for that purpose as agent or in any
capacity akin thereto. If, contrary to the pro-
visions of this section, the special partner shall
in any manner interfere with the business and
affairs of the partnership, he shall be deemed a
general partner; but a special partner may act as
the attorney or counselor at law for the partner-
ship without being liable to become a general
partner. "Act .1837, Cobb, 587; Acts 1884-5,
p. 47.
§ 3206. (§ 2677.) Capital stock not to be with-
drawn.— No part of the sum which any special
partner shall have contributed to the capital
stock shall be withdrawn by him or paid or
transferred to him in the shape of dividends,
profits, or otherwise, at any time during the con-
tinuance of the partnership, but any partner may
annually receive lawful interest on the sum so
contributed by him, if the payment of such in-
terest shall not reduce the original amount of
such capital; and if, after the payment of such
interest, any profits shall remain to be divided,
he may also receive his portion of such profits,
but shall not be liable for any debts previ-
ously contracted by the general partners. Act
1837, Cobb, 587.
§ 3207. (§ 2678.) Interest and profits, etc.— If
it shall appear that, by the payment of interest
or profits to any special partner, the original
capital has been reduced, or the firm shall be un-
able to pay its debts, the partner receiving the
same shall be bound to restore the interest or
profits received by him necessary to make good
his original share of the original stock. Act 1837,
Cobb, 587.
§ 3208. (§ 2679.) Liability of general partners.
— The general partners shall be liable to each
other, and to the special partners, for their man-
agement of the business of the firm, both in law
and equity, as other partners are now by law and
equity. Act 1837, Cobb, 587.
As to liability of general partner, see § 3171.
§ 3209. (§ 2680.) Partners guilty of fraud, etc.
— Every partner who shall be guilty of any fraud
in the affairs or business of the partnership shall
be liable civilly to the party injured, to the ex-
tent of his damage, and shall also be liable to an
indictment for a misdemeanor. Act 1837, Cobb,
587.
For identical section, see P. C, 727.
§ 3210. (§ 2681.) Fraudulent assignments in-
valid.— Every sale, assignment, or transfer of
any of the property or effects of such partner-
ship, made by such partnership when insolvent
or in contemplation of insolvency, or after or in
contemplation of the insolvency of any partner,
with the intent of giving a preference to any
creditor of such partnership or insolvent partner
over other creditors of such partnership, and
every judgment confessed, lien created, or se-
curity given by such partnership, under the like
circumstances and with the like intent, shall be
void as against the creditors of such partnership.
Act 1837, Cobb, 587.
§ 3211. (§ 2682.) By general or special part-
ners.— Every such sale, assignment, or transfer
of any of the property or effects of a general or
special partner, who may have become liable as
a general partner, made by such general or spe-
cial partner when insolvent or in contemplation of
insolvency, or after or in contemplation of the
insolvency of the partnership, with the intention
of giving to any creditor of his own, or of the
partnership, a preference over creditors of the
partnership, and every judgment confessed, lien
created, or security given by any such partner
under the like circumstances, and with the like
intent, shall be void as against the creditors of
the partnership. Act 1837, Cobb, 588.
§ 3212. (§ 2683.) Liability of special partners,
etc. — Any special partner who shall violate any
provisions of the last two preceding sections, or
who shall concur in, or assent to, any such viola-
tion by the partnership, or by any individual
partner, shall be liable as a general partner. Act
1837, Cobb, 588.
§ 3213. (§ 2684.) Special partners, etc. — In case
of the insolvency or bankruptcy of the partner-
ship, no special partner shall, under any circum-
stances, be allowed to claim as a creditor until
the claims of all the other creditors of the part-
nership shall be satisfied. Act 1837, Cobb, 588.
§ 3214. (§ 2685.) Dissolution, how effected. —
No dissolution of such partnership, by the acts
of the parties, shall take place previously to the
time specified in the certificate of its renewal, un-
til a notice of such intended dissolution shall
have been filed and recorded in the clerk's office
in which the original certificate was recorded, and
published at least once a week for four weeks in
a newspaper printed in each of the counties
where the partnership has places of business; but
if no newspaper be printed in such counties, then
the notice shall be published for four weeks in
the newspaper in which the sheriff of said county
advertises, which notice shall be signed by all
the partners, or their representatives: Provided,
that nothing herein contained shall be so con-
strued as to affect the collection of any demand
against either of the special partners which may
have been contracted previously to the com-
mencement of such special partnership. Act
1837, Cobb, 588.
[ 839 ]
§ 3215
DEBTOR AND CREDITOR— GENERAL PRINCIPLES
§ 3220
CHAPTER 2.
Debtor and Creditor.
ARTICLE l.
General Principles.
SECTION 1.
Relation Denned, Etc.
§ 3215. (§ 2686.) Relation of debtor and cred-
itor.— Whenever one person, by contract or by
law, is liable and bound to pay to another an
amount of money, certain or uncertain, the rela-
tion of debtor and creditor exists between them.
See 4 Cum. Dig. 648.
Meaning of "Creditor."— While the generic meaning of
the term "creditor," is defined by this section, it is used
in § 2220 in its more circumscribed and ordinary meaning
as denoting the holder of an obligation arising ex con-
tractu. Howard v. Long, 142 Ga. 789, 793, 83 S. E. 852.
Liability for Trespass.— The words "liable and bound by
law to pay another an amount of money, certain or un-
certain," under this section certainly are broad enough to
embrace a person liable to pay for a trespass, and that be-
fore the amount of the trespass, or the extent of the dam-
age, is ascertained; for the words are, "an amount of
money, certain or uncertain." See § 3224. Westmoreland
v. Powell, 59 Ga. 256, 258.
Liability for Conversion. — "This definition is much broader
than is generally supposed, and would seem to include^ a
liability for a wrongful conversion of property for which
trover would lie." Banks v. McCandless, 119 Ga. 793,
798, 47 S. E- 332.
Loan Association and Stockholder. — The true relation
between the holder of a certificate of stock in a Loan and
Building Association and the association, is neither more
nor less than that of debtor and creditor. Cashen v. South-
ern Mut. Bldg., etc., Ass'n, 114 Ga. .983, 41 S. E. 51; Cook
v. Equitable Building, etc., Ass'n, 104 Ga. 814, 30 S. E- 911.
Paying Debts of Another.— See 4 Cum. Dig. 649.
§ 3216. (§ 2687.) Rights of creditors favored. —
The rights of creditors should be favored by the
courts, and every remedy and facility afforded
them to detect, defeat, and annul any effort to
defraud them of their just rights.
As to petitions of creditors, see § 4600.
Debtors Can Not Shift Assets at Will—If not a violation
of the letter of this section and § 3217, it would certainly
not accord with their spirit and purpose to hold that a' firm
of debtors could shift their assets at will, and impose on
their creditors duties by mere notice, but could prevent a
creditor from accepting for his benefit the status which
they had thrust upon him for their own. Sheppard v.
Bridges, 137 Ga. 615, 632, 74 S. E. 245.
An interlocutory appointment of a receiver under a cred-
itor's bill, attacking a voluntary assignment for fraud, was
not error, in view of this section. Oliver & Co. v. Victor,
74 Ga. 543.
An intervention by a former partner is authorized by this
section and § 3217 to wind up affairs, where his allegations
are sufficient. Sheppard v. Bridge, 137 Ga. 615, 632, 74 S.
E. 245.
Creditor's Pleadings. — Creditors are favored by this sec-
tion but it is essential that the pleadings should set forth
the facts entitling each of the creditors to maintain his ac-
tion. Fouche v. Brower, 74 Ga. 251.
Stated in Daniel v. Frost, 62 Ga. 697, 708; Banks v. Mc-
Candless, 119 Ga. 793, 47 S. E. 332.
Cited in Stewart v. Mundy, 131 Ga. 586, 62 S. E. 986:
Robert v. Tift, 60 Ga. 566, 571; Turnipseed v. Schaefer, 76
Ga. 109, 111; Hood v. Perry, 75 Ga. 310, 312; Orton v. Mad-
den, 75 Ga. 83, 88; Taylor Lumber Co. v. Clark Lumber
Co., 33 Ga. App. 815, 127 S. E. 905.
§ 3217. (§ 2688.) Equitable assets. — Courts of
equity should assist creditors in reaching equit-
able assets in every case where to refuse inter-
ference would jeopard the collection of their
debts.
Cross References. — See notes to § 3216. For similar pro-
[ 840
vision, see § 4601. As to marshalling assets, see § 4598. As
to receiver for insolvent trader, see § 3249.
Exhausting Legal Remedies. — Generally, if a creditor
would exhaust his legal remedies against an estate so as-
to entitle himself to reach assets through a court of equity,.
he should obtain a judgment and fi. fa. which can be levied
on the goods, etc., of the testator or intestate, and procure-
a return of nulla bona. Lemon v. Thaxton, 59 Ga. 706.
Injunction. — A judgment creditor was granted an injunc-
tion and receiver in the state court, where the only fundi
out of which he could get his rights was in danger. Mer-
chants', etc., Nat. Bank v. Trustees, 63 Ga. 549, 551.
Cited in Turnipseed v. Schaefer, 76 Ga. 109, 111; Taylor
Lumber Co. v. Clark Lumber Co., 33 Ga. App. 815, 127 S,
E. 905.
§ 3218. (§ 2689.) Attacking judgments. — Cred-
itors may attack as fraudulent a judgment or
conveyance, or any other arrangement interfer-
ing with their rights, either in law or in equity.
Cross References. — For full treatment of fraudulent sales-
and conveyances, see 6 Cum. Dig. 481, 6 Enc. Dig. 610,
For full treatment of fraudulent judgments, see 8 Enc. Dig.
231 ; as to provision for setting aside judgment for fraud,
see § 5111. For provision similar to this, see § 5966.
Collateral Attack. — An unreversed judgment of a com-
petent court can not be collaterally attacked except for
fraud or collusion, or for some defect apparent upon the
face of the record or pleadings under this section and §
5966. Hammock v. McBride, 6 Ga. 178; Smith v. Cuvler,
78 Ga. 654, 3 S. E. 406; Williams v. Lancaster, 113 Ga.
1020, 39 S. E. 471. See. also, in this connection, §§ 4629,
4630, 5965; McArthur v. Matthewson, 67 Ga. 134; Brooke
v. Farmers', etc., Bank, 27 Ga. App. 250, 108 S. E. 135.
Judgment of Foreclosure. — A judgment foreclosing liens
was not void upon its face but was on its face valid and
regular, and the plaintiffs were not, so long as it re-
mained of force, entitled to the injunction for which they
prayed. Dixon, etc., Co. v. Baxter & Co., 106 Ga. 180, 32
S. E- 24; Suwannee Turpentine Co. v. Baxter & Co., 109'
Ga. 597, 35 S. E. 142.
A judgment of foreclosure in favor of one creditor, may
not be set aside by another, except for fraud. Maha"n v..
Cavender, 77 Ga. 118.
Same — Consolidating Four Liens. — When in a suit for the
foreclosure of such liens four different liens for different
amounts, each on land different and distinct from that af-
fected by the other liens, were consolidated in one peti-
tion and judgment prayed setting up and establishing the
liens for the aggregate sum of all the liens on all the land,,
and such a judgment was rendered by the court, it was
irregular but not void. Suwannee Turpentine Co. v. Bax-
ter & Co., 109 Ga. 597, 35 S. E. 142.
Stated in Seagraves v. Powell Co., 143 Ga. 572, 579. S?
S. E. 760.
§ 3219. (§ 2690.) Pursuing two remedies.— The
creditor can not pursue the person and property
of the debtor at the same time, except in cases
specially provided for; but the process last sued
out shall be void.
See 5 Cum. Dig. 271, 4 Enc. Dig. 799. As to election, by-
plaintiff between two suits, see § 4331.
§ 3220. (§ 2691.) Compulsory election. — As
among themselves, creditors must so prosecute
their own rights as not unnecessarily to jeopard
the rights of others; hence a creditor having a
lien on two funds of the. debtor, equally accessi-
ble to him, will be compelled to pursue the one
on which other creditors have no lien.
Cross Reference. — For full treatment, see 8 Cum. Dig.
421, 9 Enc. Dig. 210. As to when a case of election arises,
see § 4609. As to election in cases of marshalling assets,
see § 4599. As to when plaintiff required to elect between;
suits, see § 4331.
Must Be Common Debtor. — The doctrine of two funds-
applies only to cases where contending creditors have a
common debtor. Carter v. Neal, 24 Ga. 346.
Section Not Applicable Between Debtor and Creditor. —
The rule of this section does not apply between the debtor
and the creditor. Union Point Ginnery, etc., Co. v. Har-
riman Nat. Bank, 142 Ga. 727, 83 S. E. 657.
Section Not Applied to Detriment of Third Person With-
Equity. — This section is subject to the limitation that such
marshaling must not be applied to the detriment of a
§ 3221
STATUTE OF FRAUDS
§ 3222
third person with an equity equal to or greater than that
of the creditor seeking to invoke the rule. Beneficiaries
of a homestead have such an equity and interest in the
homestead estate as to be within the protection of this
limitation. Mulherin v. Porter, 1 Ga. App. 153, 58 S. E. 60.
Creditor Must Not Be Delayed. — The equitable remedy
of marshaling securities will not be so extended as to de-
lay or inconvenience a creditor in the collection of his debt
secured by collateral notes, by confining him to particular
•collaterals at the instance of one whose note is included
among the collaterals and who claims an equitable set-off
against the payee of his note. Hanesley v. National Park
Bank, 147 Ga. 96, 92 S. E. 879.
Where One of Securities Without State. — A creditor hav-
ing two securities, one within this state, and one beyond
it, will not, at the instance of a competing creditor hold-
ing a junior lien on the former security, be driven out of
the state to exhaust his security there before being al-
lowed to proceed here. Calloway v. Peoples' Bank, 54 Ga.
572; Denham v. Williams, 39 Ga. 312.
Mortgagees with Defeasible Deed to Debtor's Realty. —
That the mortgagees sought to be postponed had a de-
feasible deed to certain realty from the debtor, would not
compel them to relinquish their lien upon the money in
the hands of the sheriff to be distributed, and to proceed
against the land, they having no judgment lien against it,
nnd it not appearing that the deed to them contained a
power authorizing them to sell the land for the purpose
of paying their debt. Vance v. Roberts, 86 Ga. 457, 12 S.
E. 653.
Mortgage Holder Purchasing Property in Good Faith. —
Equity will not compel election by the holder of a mort-
gage, who purchased the property in good faith, to protect
his title. Georgia Chemical Works v. Cartledge, 77 Ga.
547.
Creditor Abandoning One of Claims. — Where one credi-
tor, in order to bring a fund into court, abandoned a claim
which he had on other property, equity will not permit
another creditor, who has a claim on the money and also
or. the property relinquished, to take the money, but will
remand him to the property, it being accessible to him ,
especially so, where he stood by, and took no part in the
fight which resulted in a compromise verdict under which
the fund was brought into court. Sims v. Albea, 72 Ga.
751.
Bonds With Indorsement. — In an action between trans-
ferees and other original purchasers, the fact that some of
■the bonds were indorsed did not make this section ap-
plicable. The indorsement was not a lien, not equally
accessible, and was not even a liability of the common
debtor. Weed v. Gainesville, etc., R. Co., 119 Ga. 576, 46
S. E. 885.
Application of Proceeds by Attorney. — That an attorney
at law who represented two judgment creditors applied to
the junior judgment money arising from a judicial sale of
property subject to both, did not pro tanto satisfy the
senior judgment so as to postpone its lien under this sec-
tion upon the proceeds of other property subject thereto in
favor of still another judgment having a lien upon the
property last mentioned and junior to both of the judg-
ments first mentioned. Richardson v. Conn, 100 Ga. 39, 27
S. E. 978.
Charging Mortgagees WMi Solvent Collaterals Mort-
gagees could not charge other mortgagees of equal rank
with solvent collaterals unless they had collected them.
Vance v. Roberts, 86 Ga. 457, 12 S. E. 653.
Applied in Newsons v. McEendons. 6 Ga. 392, 393:
Moore v. Cofield, 10 Ga. App. 197, 73 S. E. 45: Ash v. Fitz-
gerald Cotton Oil Co., 27 Ga. App. 35, 107 S. E. 342.
Stated in Johnson v. Lewis. 8 Ga. 460, 462; Hardv v.
Truitt. 20 Ga. App. 529, 93 S. E. 149.
Cited in National Cash Register Co. v. Stubbs, 29 ©4.
App. 543, 116 S. E. 44; Shemwell v. Garrett, 159 Ga. 222
125 S. E- 497.
§ 3221. (§ 2692.) Composition by debtor.— If a
debtor misrepresents or suppresses any material'
fact in the statement of his affairs either as to
the amount of his property or of his indebted-
ness, the composition is void; so, too, if he pri-
vately agrees to give one creditor a better secur-
ity or to pay one more than the other, the
contract with the others is void.
For full treatment, see 3 Cum. Dig. 733, 3 Enc. Dig. 185.
Editor's Note. — This section is based on the decision of
Woodruff & Co. v. Saul, 70 Ga. 271, the first clause of
the section being the second headnote of this case, and the
second clause being the first headnote. These provisions
first appeared in the code of 1895.
Applied in Burgess v. Simpson Grocery Co., 128 Ga. 423,
57 S. E. 717; Saul v. Buck, 72 Ga. 254.
SECTION 2.
Statute of Frauds.
§ 3222. (§ 2693.) Obligations which must be
in writing. — To make the following obligations
binding on the promisor, the promise must be in
writing, signed by the party to be' charged there-
with, or some person by him lawfully authorized,
viz.:
Cross References. — For full treatment, see 6 Cum. Dig.
433, 6 Enc. Dig. 563. As to creating relation of landlord
and tenant for a time less than a year by parol, see §
3693. As to when such relation exists, see § 3691. As to
necessity for fire insurance contract to be in writing, see
§ 2470. As to express trusts, see § 3731. As to letters to
obtain credit, see § 4411. As to creating remainders by
parol, see § 3679. As to contracts with ordinary, see §
386. As to sales by auction, see § 4107. As to new
promise after discharge in bankruptcy, see § 4384.
Editor's Note. — The purpose of this section was to
place the contracts mentioned in the 4th and 17th sec-
tions of the English statute of frauds (29 Charles II. See
Cobbs Dig. 1127) under the same rules. The words
"agreement" and "bargain" are entirely eliminated, and
the statute declares that the writing shall contain the
promise. The effect of this was to declare that a writing
which contains the names of the parties, the subject-mat-
ter of the agreement, and the promise to be enforced,
signed by the party to be charged therewith, or some per-
son by him lawfully authorized, would be sufficient to
make the obligation binding, although no consideration
for the promise was stated in the writing. See Turner
v. Eorillard Co., 100 Ga. 645, 649, 28 S. E. 383.
The searcher will find much general material, common
to all paragraphs, under the specific paragraphs, such as
requisites of the memorandum, and questions of pleading.
Memorandum — Agreement on Separate Papers. — See 6
Cum. Dig. 464, 6 Enc. Dig. 595.
The statute of frauds does not require that all the terms
of the contract should be agreed to or written down at
one and the same time, nor on one piece of paper; but
where the memorandum of the bargain is found on sepa-
rate pieces of paper, and where these papers contain the
whole bargain, they form together such a memorandum as
will satisfy the statute, provided the contents of the signed
paper make such reference to the other written paper or
papers as to enable the court to construe the whole of
them together as containing all the terms of the bargain.
If, however, it be necessary to adduce parol evidence, in
order to connect a signed paper with others unsigned, by
reason of the absence of any internal evidence in the
signed paper to show a reference to or connection with
the unsigned papers, then the several papers taken to-
gether do not constitute a memorandum in writing of the
bargain, so as to satisfy the statute. North & Co. v.
Mendel & Bro., 73 Ga. 400; Killarney Realty Co. v. Wim
pey, 30 Ga. App. 390, 118 S. E- 581. See also Turner v.
Eorillard Co.. 100 Ga. 645, 650, 28 S. E. 383.
Same — Must Be Complete. — A written memorandum can
not depend upon parol evidence to supply necessary or
additional portions of the contract but must be complete
in itself. Hamby v. Truitt, 14 Ga. App. 515, 81 S. E. 593.
Same — Identification of Property. — The option contract of
certain land and over $50 worth of goods on which this suit
was based failed to identify the property which was the
subject-matter of the contract; and the court did not err
in dismissing the action on demurrer. Minis v. Gillis, 19
Ga. App. 53, 90 S. E. 1035.
Parol Evidence to Prevent Admitting Defective Writ-
ing.— "While parol evidence will never be admitted in aid
of a party who has an incomplete writing, it will be ad-
mitted to defeat a party who is attempting to impose upon
the court in writing which is not really a compliance with
the statute." Turner v. Lorillard Co.. 100 Ga. 645, 650, 28
S. E. 383.
Parol Authority to Make Memorandum. — There is no
statute in this State requiring the authority to make the
memorandum required by the statute of frauds to be in
writing, and such authority may be conferred by parol.
Brandon v. Pritchett. 126 Ga. 286, 55 S. E. 241.
Presumption that Contract is Written. — It is not to be
[841 ]
§ 3222
STATUTE OF FRAUDS
§ 3222
presumed that a contract was not in writing. Long v.
Lewis, 16 Ga. 154, 162.
Exceptions to Section. — See § 3223.
The question of mutuality is one distinct and apart from
any question that might arise under the statute of frauds.
Johnston v. Trippe, 33 Fed. 530.
Defense of Statute a Personal Privilege.— "The defense
of the statute of frauds, like that of a plea of usury, is in
the nature of a personal privilege, of which the defendant
can avail himself or not, as he sees proper." Tift v.
Wight, etc., Co., 113 Ga. 681, 685, 39 S. E. 503; Draper,
etc., Co. v. Macon Dry Goods Co., 103 Ga. 661, 663, 30 S.
E. 566. See also, Armour & Co. v. Ross, 110 Ga. 403, 413,
35 S. E. 787.
Defense Must Be Raised in Trial Court. — Unless the de-
fense that the contract relied on by the opposite party is
unenforceable for lack of compliance with the statute of
frauds is raised in the trial court, the right to raise it
will be deemed to have been waived. Miller v. Smith, 6
Ga. App. 447, 65 S. E. 292. See also Lindale Co-Operative
Store v. Ailey,l32 Ga. App. 30, 33, 122 S. E- 718.
Statute Must Be Pleaded. — As a general rule, for the
defendant to avail himself of the statute of frauds he must
specially plead it. Bentley v. Johns, 19 Ga. App. 657, 91
S. E. 999.
Same — Exception — Motion to Nonsuit. — In the absence of
a plea of the statute of frauds the defendant can avaii
himself of this defense by a timely motion to non-suit the
case. Bentley v. Johns, 19 Ga. App. 657, 91 S. E. 999.
See also Tift v. Wight, etc., Co., 113 Ga. 681, 684, 39 S.
E. 503.
Demurrer — When Not Allowed. — Where proceedings are
brought to enforce rights arising under a contract required
to be in writing under this section, failure to allege in
the pleadings that such contract was in writing can not
be taken advantage of by demurrer. The silence raises no
presumption that the contract exists only in parol. Free-
man v. Matthews. 6 Ga. App. 164, 64 S. E. 716.
Same — When Allowed. — "The defense of statute of frauds
can be raised by demurrer to the petition only when the
facts alleged in the petition affirmatively show that the
contract is oral and that there has not been such perform-
ance as to raise an exception." Marks v. Talmadge's Sons
& Co., 8 Ga. App. 557, 69 S. E. 1131; Kinney v. Kinney, 20
Ga. App. 816, 93 S. E. 496; Port Wentworth Lumber Co.
v. McLean, 22 Ga. App. 737, 97 S. E. 194.
1. A promise by an executor, administrator,
guardian, or trustee to answer damages out of
his own estate.
2. A promise to answer for the debt, default,
or miscarriage of another. Acts 1851-2, p. 243.
Cross References. — For full treatment, see 6 Cum. Dig.
436, 6 Enc. Dig. 565. For full treatment of guaranty, see
6 Cum. Dig. 701, 6 Enc. Dig. 809. For full treatment of
suretyship, see 10 Cum. Dig. 702, 12 Enc. Dig. 1.
Editor's Note. — The early construction of this provision
of the statute of frauds, required that the special promise
to answer for the debt of another, must not only be in
writing, but also the consideration of the agreement. See
Henderson v. Johnson, *§T~Ga. 390; Hargroves v. Cooke, 15
Ga. 321. The act of 1852 (Acts 1851-2, p. 243) declared that
this section shall be so construed as not to require this
consideration^ to be expressed in writing. Baker v. Hern
don, 17 Ga. 568, held that this act applied to an agreement
made before its passage. Apparently the Act of 1852 is
repealed by Acts 1855-6, p. 240, but such is not the case,
as is pointed out in the cases of Sorrell v. Jackson, 30 Ga.
901 and Black v. McBain, 32 Ga. 128. The compiler of the
laws for 1856 erred in supposing that this act was re-
pealed. A glance at the titles of these acts will demon-
strate that the Act of 1856 repealed the Act of 1854, p. 58
and not th* Act of 1852.
Nature of Promise Under Section. — The "promise to an-
swer for the debt, default, or miscarriage of another," re-
quired by this provision of the statute of frauds to be evi-
denced by writing, and not otherwise, is that collateral
contract by which - the second promisor becomes bound
along with the original promisor; and does not include an
original undertaking whereby a new promisor, for a valu-
able consideration between him and the promisee, sub-
stitutes himself as the party who is to perform, and re-
leases the original promisor from liability under the • con-
tract. Evans v. Griffin, 1 Ga. App. 327, 57 S. E. 921;
Daniel Sons, etc., Co. v. Dickey, 6 Ga. App. 548, 65 S. E.
301; Harris v. Paulk, 10 Ga. App. 334, 73 S. E. 430; Hol-
comb v. Mashburn, 10 Ga. App. 781, 783, 74 S. E. 307;
Hicks v. Walker, 17 Ga. App. 391, 87 S. E. 152; Foote v.
Reece & Son, 17 Ga. App. 799, 88 S. E. 689; Ferst's Sons
& Co. v. Bank, 111 Ga. 229, 232, 36 S. E- 773; Williams v.
Garrison, 21 Ga. App. 44, 93 S. E. 510.
Particular Promises Held Within This Provision. — See
6 Cum. Dig. 437, 6 Enc. Dig. 566.
A parol agreement, absolute or conditional, to pay the
debt of a third person, is void under this provision. John-
son v. Morris, 21 Ga. 238.
Same — Promise to Assume Wife's Debt. — A parol prom
ise by the husband to pay the debt of his wife is void un-
der the statute of frauds. Connerat v. Goldsmith, 6 Ga.
14.
Same — Promise to Pay Notes Given by Another. — See,
Bluthenthal v. Moore, 111 Ga. 297, 36 S. E.. 689.
Same — Agreement to Pay Account of Third Person in
Order to Prevent His Prosecution. — An agreement on the
part of A. B. to pay a certain account for C. D., in order
to prevent the prosecution of C. D., is a promise to an-
swer for the debt, default, or miscarriage of another,
within the terms of this provision, and must be in writ-
ing. Bush v. Roberts, 4 Ga. App. 531, 62 S. E. 92.
Promise Not Within This Provision. — See 6 Cum. Dig.
439, 6 Enc. Dig. 567.
Same — Promise by One Taking Bonds for Titles to Pay
Purchase Money. — One taking a bond for titles by assign-
ment, under a contract to pay the purchase money due
to the original vendor, may be compelled by a Court of
Equity to perform his contract. It is not a parol promise
to answer for the debt of another under this provision.
Ford v. Finney, 35 Ga. 258.
Same — Agreement to Pay Loan in Consideration of Re-
leasing Third Person From Contract. — See Evans v. Grif-
fin, 1 Ga. App. 327, 57 S. E. 921.
Same — Agreement to Pay Debts in Consideration of
Loan. — Where one interested in a business conducted by
a corporation agreed orally with a creditor of the cor-
poration, in consideration of a loan made to the promisor,
'to be used in the business, that he would see the debt
of the corporation paid, and would likewise see that all
future obligations of the corporation to the creditor were
discharged, the agreement was not void under the statute
of frauds. Holcomb v. Mashburn, 10 Ga. App. 781, 74 S.
E. 307.
Same — Person Becoming Debtor by Substitution. - —
"Where a creditor, his debtor, and a third person who
owes the debtor agree in parol that such third person shall
be substituted for the debtor and that the latter shall be
released, the case if not within the statute of frauds, but
the debt is extinguished as to the debtor, and the third
person becomes, by substitution, the debtor in his place."
Foote v. Reece & Son, 17 Ga. App. 799, 88 S. E. 689.
Same — Agreement to Remove Crops. — Where, in con
sideration that a third person be allowed to take posses
sion of and remove from the premises of B. to the premi-
ses of A. certain crops raised by the third person on the
lands of B., and to which B. had title, A. agreed to be-
come responsible for and pay to B. the amount due the by
third person to B., as soon as a settlement could be had
between them and the exact amount of the indebtedness
ascertained, the contract was an original undertaking,
based upon a valuable consideration, and not a contract
which this provision of the statute of frauds required to
be in writing. Hicks v. Walker, 17 Ga. App. 391, 87 S.
E- 152.
Same — Forbearance to Enforce Lien. — Where one has a
statutory lien for supplies upon personal property be-
longing to a firm, which property is sold to another firm
composed in part of the same members, and thereupon the
purchasing firm, to prevent a foreclosure and sale under
the lien, agree with the creditor to pay the debt if he will
grant certain indulgence and furnish other like supplies
to them for their use, and the creditor complies with his
undertaking, the case is not within this provision of the
statute of frauds, and he may recover of the . second firm
upon their contract to pay the debt of the firm. Wooten
v. Wilcox, etc., Co., 87 Ga. 474, 13 S. E. 595.
Non-interference by Creditor Having No Lien. — A parol
promise to pay an existing debt of another who still re-
mained bound, though such promise was made in con-
sideration of an agreement by the debtor to sell goods be-
longing* to him to the person making the promise, and in
further consideration of an agreement by the creditor (he,
however, having no lien upon the goods) to "refrain from
interfering with or preventing" such sale by "endeavoring
to secure or collect" the amount due him by the debtor, is
not binding, and can not be enforced. The fact that a por-
tion of the goods was actually sold, delivered and paid for
under and in pursuance of such an arrangement does not
alter the rule above announced. Strauss v. Garrett &
Sons, 101 Ga. 307, 28 S. E. 850.
842 ]
§ 3222
STATUTE OF FRAUDS
§ 3222
Where both parties were primarily liable for the debt,
this principle of law is not involved. Bohler v. Texas Co.,
17 Ga. App. 382, 87 S. E- 157.
A promise by one person to indemnify another for be-
coming security to a third, is not within the statute of
frauds, and need not be in writing. Jones v. Shorter, 1
Ga. 294.
Sufficiency of Writing. — In order to bind the promisor,
the written promise of one who undertakes to pay the debt
of another under this provision must contain a clear state-
ment of the agreement, indicate knowledge of the amount
promised to be paid, and show who is the promisee, as
well as the promisor. The terms of a promise to assume
the debt of another can not be settled by parol. Johnson
v. Rycroft, 4 Ga. App. 547, 61 S. E. 1052.
Same — Consideration Need Not Be Written. — See ante,
this note, "Editor's Note."
Same — Must Identify Debt. — A writing relied on to
satisfy this provision of the statute of frauds, which re-
quires a promise to pay the debt of another to be in writ-
ing, must either itself or in connection with other writ-
ings identify the debt which is the subject of the promise,
without the aid of parol evidence. Pearce & Co. v. Stone
Tobacco Co., 125 Ga. 444, 54 S. E. 103.
• Same — Account Books. — Account books, per se, are not
sufficient to charge the defendant with the debts and ac-
counts of third persons. Bower v. Smith, 8 Ga. 74.
When Demurrer Lies. — The action being a suit for breach
of promise to pay the debt of another, and it not being-
alleged that the promise was in writing, or that the other
party to the contract had either partly or wholly per-
formed it by furnishing in whole or in part the considera-
tion which induced the promise, it was error to overrule
a demurrer based upon the ground that the contract sued
on was within the statute of frauds. Pidcock v. Nace, 14
Ga. App. 183, 80 S. E. 526.
Cited in Armstrong v. Reynolds, 33 Ga. App. 27, 28, 125
S. E. 512.
3. Any agreement made upon consideration
of marriage, except marriage articles as herein-
before provided.
As to marriage article contemplating settlement on wife,
see § 2999. As to construction of marriage contracts, see
§ 3001.
Marriage Settlement. — A parol agreement, before mar-
riage, to make and execute in writing a settlement after
marriage, is within this provision. Bradley v. Saddler, 54
Ga. 681.
A promise to marry is not an agreement within this
provision. Spence v. Carter, 33 Ga. App. 279, 125 S. E. 883.
Applied in Hammond v. Hammond, 135 Ga. 768, 770, 70
S. E. 588.
4. Any contract for sale of lands, or any in-
terest in, or concerning them.
Cross References. — For full treatment, see 6 Cum. Dig.
442, 6 Enc. Dig. 573. As to when specific performance of
parol contracts as to lands will be decreed, see § 4634.
Editor's Note. — Section 4107 appears to be an exception
to this provision, as was pointed out by the court in Ho-
well v. Shewell, 96 Ga. 454, 23 S. E. 310. That section
provides that in cases of sales by auction, the auctioneer
shall be considered the agent of both parties, so as to dis-
pense with any further memorandum in writing than his
own entries. The preliminary provisions of this section
provide that the writing shall be signed by the party to
be charged therewith, or some person by him lawfully au-
thorized. The auctioneer gets his authority to make en-
tries as agent of the parties by § 4107, and is not a, "per-
son by him lawfully authorized," or, a person authorized
by the party to be charged, as required by this section.
Source of Provision.— "This is a condensed statement of
one of the provisions of the English statute of frauds, and
may be taken as meaning the same as did the provision in
that statute as it was understood prior to the adoption of
■the code." Roughton v. Rawlings, 88 Ga. 819, 822, 16 S.
E. 89.
Verbal Agreement to Bid at Sale. — Where two persons,
not stipulating that either shall not bid, agree verbally,
without reducing the agreement to writing, that one or
the other of them shall bid off, at an executor's sale about
to take place at auction, a tract of land adjoining the
premises of each of the parties respectively, and that the
tract shall then be divided equally between them, the
agreement is within this provision. Roughton v. Rawlings.
88 Ga. 819, 16 S. E. 89.
Contract Between Broker and Real Estate Owner An
oral contract between broker and the owner of the real
estate sold, upon which this suit for commissions was
based, was not within this provision of the statute of
frauds. Lingo v. Blair, 32 Ga. App. Ill, 122 S. E. 802.
Agreement to Sell Within Given Time. — An agreement
resting wholly in parol, whereby one promises to sell to
another an interest in land upon tender within a given time
of a specified amount, is within this provision clearly.
Lyons v. Bass, 108 Ga. 573, 34 S. E. 721.
Agreement to Take Deed as Security for Loan. — Where
a contract was made to loan money, take a deed to land
as security, and give bond to reconvey on payment of the
debt, and the money was loaned and the deed taken, but
by inadvertence it was not signed by the debtor, a bill for
specific performance would lie. Storey v. Weaver, 66 Ga.
296.
Agreement between Owners to Sell.— An agreement by
the parties interested that the land in which they are
jointly interested may be sold, not a contract for its sale,
made with one who contemplates purchasing, is not a
contract to which this provision was intended to apply.
Goode & Son v. Rawlins, 44 Ga. 593, 596.
A parol lease of lands for more than three years is void
by the Statute of Frauds, and has the force and effect of
an estate at will, which for the purposes of notice to quit,
and some other purposes, has been by judicial construction
converted into a tenancy from year to year. Cody v.
Quarterman, 12 Ga. 386.
A parol purchase of lands is obnoxious to this provision.
Blance v. Goodnow, 68 Ga. 264.
Trust in Land — Rule Before Code. — Though a trust in
land need not be created in writing, yet, to take the case
out of the statute of frauds, it must be proved by writ-
ing, and parol testimony is inadmissible for that purpose.
Miller v. Cotten, 5 Ga. 341.
Same — Express Trusts. — See § 3733 and notes thereto.
Same — Implied Trusts. — See § 3741 and notes thereto.
A contract of sale of growing trees concerns an interest
in realty, and under this provision must be in writing.
Corbin v. Durden, 126 Ga. 429, 55 S. E. 30; Bancom v.
Pioneer Land Co., 148 Ga. 633, 97 S. E. 671.
What Writing Must Contain. — Every essential element
of the sale must be expressed in the writing, to meet the
statutory requirement of this provision. One of the es-
sentials is that the land must be so described that it is
capable of identification. While it is not necessary that
the land be described with such precision that its location
and identity are apparent from the description alone, yet
the description must be sufficiently clear to indicate with
reasonable certainty the land intended to be conveyed.
Tippins v. Phillips, 123 Ga. 415, 417, 51 S. E. 410; Durham
v. Davison, 156 Ga. 49, 54, 118 S. E. 736. See also Doug-
lass v. Bunn, 110 Ga. 159, 35 S. E. 339.
Same — Reference to Purchase Price. — A writing signed
by an owner of land or his authorized agent, acknowledg-
ing the receipt of a part of the purchase -money, but en-
tirely omitting any reference to the purchase-price, does
not comply with this provision of the statute of frauds.
Kinderland v. Kirk, 131 Ga. 454, 62 S. E. 582; Corbin v.
Durden, 126 Ga. 429, 55 S. E- 30; Hill v. Jones, 7 Ga. App.
394, 66 S. E. 1099.
Same — Signature of Party to Be Charged. — Under this
provision of the statute of frauds, a contract for the pur-
chase of lands need only be signed by the party against
whom the contract is sought to be enforced. Fraser v.
Jarrett, 153 Ga. 441, 112 S. E. 487.
A receipt given by an alleged vendor to the alleged
vendee 'for a part of the purchase-money for lands, signed
by the former alone, is not sufficient to charge the other
with a contract therein stated and sought to be enforced
at the instance of the former, where the statute of frauds
is invoked by the latter. Smith v. Jones, 66 Ga. 338; Fra-
ser v. Jarrett, 153 Ga. 441. Killarney Realty Co. v. Wim-
pey, 30* Ga. App. 390, 118 S. E. 581.
Same — Modification by Parol. — While parol evidence may
be admitted to explain ambiguities in the description, it
can not be admitted to supply a description which is en-
tirely wanting in the writing. Douglass v. Bunn, 110 Ga.
159, 35 S. E. 339. See also Tippins v. Phillips, 123 Ga. 415,
418, 51 S. E. 410.
A contract for the sale of land which must, under this
provision, be in writing, and which accordingly is put in
writing and duly executed, can not be subsequently modi-
fied bv a parol agreement. Willis v. Fields. 132 Ga. 242.
63 S. E. 828: Moore v. Collier. 133 Ga. 762. 66 S. E. 1080;
Jarman v. Westbrook, 134 Ga. 19. 67 S. E..403; Elrod v.
Camp, 150 Ga. 48, 50. 102 S. E. 357.
Where several writings are relied on to establish a sale
of land or of timber growing thereon, or to show authoriza-
tion by the owner for another to sell the same, and pare!
evidence is necessary to connect and explain such writings.
[843]
§ 3222
STATUTE OF FRAUDS
§ 3222
in order to constitute a contract of sale or to establish
such authorization, such writings will not satisfy this pro-
vision. Peacock v. Home, 159 Ga. 707, 126 S. E. 813.
Oral Ratification of Change in Agreement. — When a
buyer submits a written offer to the owner of lands for
the purchase thereof, which in all respects meets the re-
quirements of the statute of frauds, which offer the owner
declines to accept unless a material change in one of the
terms thereof is made, which change is made in such of-
fer by a real-estate agent negotiating the sale, without
authority from the buyer, after which the owner in writ-
ing accepts the offer so changed, and after such change
and acceptance the buyer orally confirms and ratifies said
change so made by such agent, the contract of sale em-
braced in such offer becomes complete and binding upon
the owner by her written acceptance of the terms of such
offer, although the offer was signed for the plaintiff under
an oral authorization only, and the confirmation by the
plaintiff of the same as changed was in parol, especially
when the latter brings suit to enforce the contract. Fraser
v. Jarrett, 153 Ga. 441, 112 S. E. 487.
Parol Ratification of Agent's Contract. — A parol ratifica-
tion of a contract for the sale of land, made by one with-
out authority assuming to act as agent in behalf of the
owner is valid and binding upon the owner, providing the
agent signed a memorandum which in its terms complied
with the provisions of the statute of frauds, which showed
upon its face that it was executed in behalf of the owner.
Brandon v. Pritchett, 126 Ga. 286, 55 S. E. 241.
This Provision Must Be Pleaded. — • In McDougald v.
Banks, 13 Ga. 451, this court held that, "to take advantage
of this section of the statute of frauds, declaring parol
leases void, it is necessary to plead it, unless the pleadings
of the plaintiff show that his case is not within the ex-
ceptions to that statute." Johnson v. Eatimer, 71 Ga. 470,
475.
Sufficiency of Petition — Where Contract Rests in Parol.
—In a suit for the specific performance of a contract for
the sale of land required to be in writing by this provision
where the allegations of the petition do not affirmatively
show that the contract rested merely in parol, it will be
presumed, upon demurrer, that the contract was in writ-
ing. Crovatt v. Baker, 130 Ga. 507, 61 S. E- 127.
The petition, in this case properly construed, is a suit
for damages for the breach of a parol contract for the
sale of land, and, as there are no facts alleged which bring
the case within any of the exceptions to the statute of
frauds, the court erred in overruling the demurrer, which
raised this issue. Sutherland v. Terrell, 30 Ga. App. 134,
118 S. E. 69.
Same — Failure to Allege Contract Written. — The peti-
tion in an action for the breach of a contract for the sale
of land is not demurrable because it fails to allege that
such contract was in writing as required by this provision.
Taliaferro v. Smiley, 112 Ga. 62, 37 S. E- 106.
Same — Copy of Agreement Attached. — In an action by
an alleged vendor for specific performance, where a copy
of the alleged written contract for sale of land as required
by this provision relied on as foundation for a suit is em-
bodied in the petition, and the paper appears to be signed
by persons alleged in the petition to be agents of the ven-
dor, but does not contain the signature of the alleged
vendor nor in any way disclose his name, the petition is
subject to general demurrer. Moore v. Adams, 153 Ga.
709, 113 S. E. 383.
Answer Admitting Parol Agreement. — If the defendant
should, by his answer, admit the parol agreement .respect-
ing land and yet, insist upon the benefit of the Statute of
Frauds he will be entitled to it, notwithstanding such ad-
mission. Hollingshead v. McKenzie, 8 Ga. 457.
5. Any agreement (except contracts with
overseers) that is not to be performed within
one year from the making thereof.
Cross References. — For full treatment, see 6 Cum. Dig.
446; 6 Enc. Dig. 575. As to contracts between employers
and overseers, see § 3616. As to contracts between land-
lords and tenants, see § 3693.
Time of Performance Depending on Contingency. — Where
the time when the contract is to be performed depends
on some contingency, it is within this provision, provided,
the contingency can not happen within the year but if
it may happen it is not within the statute, whether it ac-
tually does happen or not. Burney v. Ball, 24 Ga. 505.
A contract of hiring for a year, to begin in presenti, is
not within the operation of this provision of the statute of
frauds.. Hudginsv. State, 126 Ga. 639, 55 S. E. 492.
Contract for Services to Begin in Future. — A verbal con-
tract for services, which are to begin at a future date and
r s
continue for a period of a year, is void under this pro-
vision of the statute of frauds. Hudgins v. State, 126 Ga.
639, 643, 55 S. E- 492; Bentley v. Smith, 3 Ga. App. 242, 59
S. E- 720, unless the party claiming its invalidity has ac-
cepted some benefit thereunder, to the loss or injury of
the other party, by reason of such part performance of
some act essential to the contract as would take it out
of the operation of the statute. Bagwell v. Milam, 9 Ga.
App. 315, 71 S. E. 684; Williams v. Garrison, 21 Ga. App.
44, 93 S. E- 510.
Contract Made in 1854 to Perform Services for Year 1855.
— An agreement made before Christmas, in 1854, to perform
services for the year 1855, not being in writing and no
memorandum thereof in writing signed by the party sought
to be charged, is void under this provision, not being an
agreement to be performed within the space of a year from
the time of the making thereof. Kelley v. Terrell, 26 Ga.
551.
A contract for a writing which might be executed in a
year, is not within this provision. Henderson v. Touch-
stone, 22 Ga. 1.
Contract to Be Performed Within Year, Price to Be
Paid Later. — A parol contract for the sale of goods, to be
delivered, and which the parties reasonably expected would
be delivered, within a year, though the price was to be
paid after that period, is not within the statute of frauds.
Johnson v. Watson, 1 Ga. 348.
Relation of Landlord and Tenant — Contracts for Year
Made Before Year Begins. — For development of this rule,
see notes of Steininger v. Williams, 63 Ga. 475; Atwood v.
Norton, 31 Ga. 507, and other cases there cited, undei
§ 3693.
A promise to marry is not an agreement within this
provision. Spence v. Carter, 33 Ga. App. 279, 125 S. E. 883.
Nonsuit Where Contract Is Oral and Nothing to Bring
Case Within Exception. — It is not error to grant a non-
suit, where it appears from the evidence, without contra-
diction, that the contract of employment on which the
plaintiff's right of action depended is for a period exceed-
ing one year and is not in writing as provided for in this
provision and there is no evidence which brings the case
within "the exception provided by § 3223. Bentley v. Smith,
3 Ga. App. 242, 59 S. E- 720.
6. Any promise to revive a debt barred by the
acts of limitation. Acts 1855-6, pp. 235, 236.
Cross References. — For full treatment, see 6 Cum. Dig.
447, 6 Enc. Dig. 577. As to administrator reviving debt
which was barred, see § 4009.
Editor's Note. — There is a conflict as to whether this
provision was a codification of the acts 1855-6, pp. 235, 236
or p. 238 of the same acts. The codifiers of the later
codes of 1895 and 1910 have indicated on the margin that
pp. 235, 236 contain the act from which this provision came
while the codifiers of the codes of 1882 and earlier codes
believed that this paragraph of the section, is a codifica-
tion of a statute of 1853-4, omitted to be published in the
acts of that year, but afterwards found in the acts of
1855-6, p. 238. The substance of this provision is again
codified in § 4383. Reed v. Thomas, 66 Ga. 595, 597. It
was thought unnecessary as well as impractical to have
full annotations under both sections, so notes applicable to
this provision will be found under § 4383.
.7. Any contract for the sale of goods, wares
and merchandise in existence, or not in esse, to
the amount of fifty dollars or more, except the
buyer shall accept part of the goods sold and act-
ually receive the same, or give something in
earnest to bind the bargain, or in part payment.
Cross References. — For full treatment, see 6 Cum. Dig.
447, 6 Enc. Dig. 579. See also "Editor's Note" under Par.
4 of this section, construing § 4107 as an exception.
Executory Contracts. — Contracts for the sale of goods,
wares and merchandise, are not excluded from the opera-
tion of the statute of frauds, because they are executory.
Cason v. Cheely & Co., 6 Ga. 554.
Executed Contract. — Where the contract has been fully
executed this provision of the statute of frauds does not
apply. Good Roads Machinery Co. v. Neal & Son, 21
Ga. App. 160, 93 S. E. 1018. See § 3223, par. 1, nor does the
section apply where there has been part performance by
acceptance. Daniel v. Hannah, 106 Ga. 91, 31 S. E- 734;
ElHston v. English, 160 Ga. 387, 128 S. E. 190.
Contract of Resale. — A parol agreement between the par-
ties to an executed contract of sale covering several arti-
cles, that the seller would accept a return of one of the
articles of a greater value than $50, at a stated credit on
441
§ 3222
STATUTE OF FRAUDS
§ 3222
the notes given for the whole, is a contract of resale by
the vendee to the vendor and is invalid under the statute
of frauds. Walker v. Malsby Co., 134 Ga. 399, 67 S. E-
1039.
Sale of Corporation Stock— Weight of Authority.— A con-
tract ' for the sale of stock in an incorporated company, at
the price of fifty dollars or more, is within this provision
which requires contracts for the sale of goods, wares, and
merchandise, to the amount of fifty dollars or more, to be
in writing. Hightower v. Ansley, 126 Ga. 8, 54 S. E. 939.
See also, Weatherly v. Cotter, 142 Ga. 457, 83 S. E. 104.
Same— Minority View. — A valid subscription to the
capital stock of a manufacturing company (unless other-
wise provided in its charter) is not required to be in writ-
ing. A contract to purchase such shares does not come
within this provision, the subject of the purchase beinft
neither 4he "goods," "wares," nor "merchandise" con-
templated by the statute. Rogers v. Burr, 105 Ga. 432, 31
S. E. 438.
This last case and Hightower v. Ansley, 126 Ga. 8, 54 S.
E. 939, are directly in conflict and can not be harmonized.
The early English decisions were conflicting and the rule
was not definitely settled in that jurisdiction until 1839,
when the rule was adopted that stock in a corporation was
neither "goods, wares, nor merchandise." In the United
States, it has been very generally held that stock is a
species of intangible property and is within the statute.
In this state, Walker v. Supple, 54 Ga. 178 held that an
account was within the statute and an account is but a
chose in action, a form of intangible property; and if the
spirit of the section should be construed to include ac-
counts, a fortiori, corporate stock should be included. This
decision was ignored in Rogers v. Burr, 105 Ga. 432, 31 S.
E. 438, but Hightower v. Ansley, 126 Ga. 8, 54 S. E. 939,
followed the Walker case, it being the older and more
popular rule in Georgia. Ed. Note.
A contract to purchase an account for $50.00, or more, is
within the reason 'and spirit of this provision and must be
in writing. Walker v. Supple, 54 Ga. 178.
Contracts for goods not in esse at the time, and of a
peculiar character so as to be unsuited to the general
market, to be made by the work and labor and with the
material of the vendor, at the instance of the purchaser,
are not within this provision. Cason v. Cheely & Co., 6
Ga. 554; Schreiber v. Wolf, 28 Ga. App. 817, 113 S. E. 53.
Cotton prepared for market is "goods and merchandise,"
within the meaning of the statute. Cason v. Cheely &
Co., 6 Ga. 554. See also Groover, etc., Co. v. Warfield, 50
Ga. 645.
Dissolution of Partnership Vendee. — Where the dissolu-
tion of a partnership was unknown to the sellers of goods
over $50, till after their delivery, the retiring partner is
liable. Moore, etc., Co. v. Duckett, 91 Ga. 752, 17 S. E-
1037.
Order Taken by Agent Subject to Principal's Approval.
— Where an agent for the sale of personal property re-
ceives an order for its purchase, in which is a recital that
the order is taken subject to the approval of his principal,
no sale is completed until the principal approves the order;
and where the purchase-price exceeds $50, such approval
must be in writing, in order to comply with this provision
of the statute of frauds. City Drug Co. v. American Soda-
Fountain Co., 13 Ga. App. 485, 79 S. E. 376.
Sufficiency of Writing. — All the material terms of a
contract for the sale of goods worth more than $50 must
be in writing signed by the party to be charged therewith.
Steward & Son v. Cook, 118 Ga. 541, 45 S. E. 398.
A memorandum failing to set out the purchasers or the
quantity and price of the article sold is not sufficient and
parol evidence was not admissible to supply these defects.
North & Co. v. Mendel & Bro., 73 Ga. 400.
Same — Assent of Parties. — The memorandum must show
all the terms of the contract, and that both parties there-
to assented to those terms. Wilkerson v. Patton Sash,
etc., Co., 10 Ga. App. 697, 73 S. E. 1088; Borum v. Swift
& Co., 125 Ga. 198, 202, 53 S. E. 698.
Same — Price and Time of Delivery. — The requirement of
this provision was not complied with in a written acknowl-
edgment of an oral order for a stated number of tons of
merchandise, the price of which and the time for delivery
of which were stated in the oral order but not in the writ-
ten acknowledgment. Stapleton ' v. Muscogee Guano Co.,
29 Ga. App. 199, 114 S. E. 906.
To satisfy the requirements of this section which we
have adopted in lieu of the statute of frauds, if an inten-
tion be shown, either by the writing itself or by extrinsic
evidence, to contract specifically as to price, then the price
is a part of the promise and must be embraced in the writ-
ing to meet the requirements of the section. Turner v.
Lorillard Co., 100 Ga. 645, 650, 28 S. E. 383.
Same — Identifying Parties. — A memorandum relied upon
to take out of this provision of the statute of frauds a
contract thereby required to be in writing must in some
way indicate or' show who are the parties to such con-
tract, "nut only who is the promisor, but who is the prom-
isee as well." Oglesby Grocery Co. v. Williams Mig.
Co., 112 Ga. 359, 37 S. E. 372.
Same — Letters Acknowledging Terms. — Letters written
by defendant acknowledging the terms of the contract are
sufficient to take the case out of the statute of frauds.
Foster v. Leeper & Menafee, 29 Ga. 294.
Same— Sales Ticket.— A sale and delivery of cotton for
cash to the amount of $50.00 or more, with a "sale ticket"
or memorandum in writing signed by the seller, is a con-
tract binding on the buyer, under this section. Groover,
etc., Co. v. Warfield, 50 Ga. 645.
' Connecting Two Writings. — Two writings in identical
form, containing the terms of an executory contract of
purchase and sale of personalty by named parties, and
each identified by the same contract number and purport-
ing within itself to be a duplicate of another to be signed
by the opposite party, can, when so executed, be connected
together, without the aid of parol testimony, and thus
meet the requirements of the statute of frauds. McFadden
v. White City Mfg. Co., 22 Ga. App. 467, 96 S. E. 581.
Parol Evidence — To Modify Writing. — "A contract which
must, under this provision, be in writing, and which ac-
cordingly is put in writing and duly executed, can not be
subsequently modified by a parol agreement." Willis v.
Fields, 152 Ga. 242, 63 S. E. 828.
Same — To Explain Ambiguity. — Although, under this
provision an agreement where the value of the goods is
over $50, must be in writing to bind the promisor, yet
an ambiguity, such as appears in this case, in the writ-
ing may be explained by parol. Wilson v. Coleman, SI
Ga. 297, 6 S. E. 693.
Same— To Show Price and Weight of Bales.— Where the
contract is silent as to the price, evidence as to the rea-
sonable price may be offered; and where, in a sale of cot-
ton, it is silent as to the weight of bales, evidence of the
trade meaning of such term may be supplied by proof.
Steward & Son v. Cock, 118 Ga. 541, 45 S. E. 398.
Evidence that an agent had authority to bind his princi-
pal was not inadmissible merely because an offer by him
was made orally, and because it related to a matter which,
under the statute of frauds, required a writing to consti-
tute a binding contract. Armour & Co. v. Ross, 110 Ga.
403, 35 S. E. 787.
Acceptance and Receipt Under This Provision. — The ac-
ceptance and receipt of merchandise of a greater value
than fifty dollars, under an oral contract of sale, which is
contemplated by this provision as relieving the contract
from the operation of the statute of frauds, must be such
a transfer of the physical possession of the property as
places the goods beyond the control of the vendor, and
within the control of the vendee. Such a transfer is not
accomplished where, under a contract of the nature in-
dicated, the goods are left in the possession and control of
the vendor, pending the taking of an inventory by him to
determine the price to be paid for the goods. . Brunswick
Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E- 366.
So long as the buyer continues to have a right to ob-
ject either to the quantum or the quality of the goods,
there has been no acceptance and receipt within the mean-
ing of this provision. Lloyd v. Wright, etc., Co., 25 Ga.
215.
Same — Acceptance by Agent. — Where, in an oral order
given for the purchase of goods exceeding fifty dollars in
value, the seller is instructed by the buyer to deliver them
to a certain named person, who receives them without
objection, and the goods are in fact such as were ordered
and are without any defect or deficiency whatever, they
are to be deemed as received and accepted by the pur-
chaser himself through his agent constituted for that pur-
pose. An action for the price is not within the statute
of frauds as embodied in § 1950 of the code. Schroder v.
Palmer Hdw. Co., 88 Ga. 578, 15 S. E- 327.
Same — Acceptance and Use of Engine. — Where suit was
brought for the price of an engine sold under verbal con-
tract, and the evidence for the plaintiff showed that the
engine had been delivered to the buyer, who accepted ami
used it for several months, the court did not err in charg-
ing that if this was true, the contract was not with-'n
this provision of the statute of frauds. Patrick v. Shields,
10 Ga. App. 506. 73 S. E. 703.
Same — Removal of Goods to Public Agreed Upon. —
Where a debtor verbally agreed to sell to his creditor a
definitely specified number of bales of cotton of the value
of over fifty dollars, to be credited on an account due by
the former to the latter at the market value of the cot-
[ 84 =
§ 3222
STATUTE OF FRAUDS
§ 3223
ton at a certain time and place, there is a complete ac-
ceptance and delivery of the property sold, within the
meaning of this provision when the debtor moves the cot-
ton to a public place designated by the creditor and agreed
upon by the parties in their contract of sale. Daniel v.
Hannah, 106 Ga. 91, 31 S. E. 734.
Same — Goods Remaining on Vendor's Premises or in
Warehouse.— The mere stipulation in the contract of re-
sale that the article should remain on the premises of the
vendor at the place where it was stored, until sold by the
vendee, did not amount to an act of delivery and accept-
ance which would bring the transaction within the ex-
ception of the statute. Walker v. Malsby Co., 134 Ga.
399, 67 S. E. 1039.
Where one person orally sells to another merchandise
of greater value than $50, with the understanding that it is
to be a cash transaction, and the seller, in pursuance <*f
the direction of the purchaser, weighs up the articles and
puts them aside in a designated portion of his storeroom
or warehouse, where they are to be turned over to the
purchaser's drays, and the purchaser refuses to send for
and pay for the articles; it was held, that there is no such
acceptance and receipt of the merchandise as is contemplated
by this provision of the statute of frauds to make the
transaction enforceable under the statute. Blumenfeld v.
Palmer Hdw. Co., 8 Ga. App. 79, 68 S. E. 618.
Same — Shipping Goods. — A, by a written order, bought
from B $180 worth of goods and merchandise. B, on re-
ceiving the order, executed it by shipping the goods covered
by it to A. Held, that the contract was not within this
provision of the statute of frauds, and was mutually bind-
ing. Maine & Co. v. Howell, 7 Ga. App. 311, 66 S. E- 804.
Delivery of and Payment for Portion of Goods. — An
executory contract in parol for the sale of personal prop-
erty amounting to more than $50 is not void under this
provision of the statute of frauds, where the contract is
afterwards partly executed by delivery of a portion of the
goods and acceptance and payment therefor, such delivery
and payment being in pursuance of the contract, within
the time stipulated for delivery, and while both parties
recognize its existence. Columbus Crate Co. v. Evans,
130 Ga. 432, 60 S. E. 1065.
Defense Must Be Pleaded. — Whether the contract was
void as being within the statute of frauds can not be con-
sidered where no such defense was made on the trial. Such
a defense must be specially pleaded. Johnson v. Latimer,
71 Ga. 470; Tift v. Wight, etc., Co., 113 Ga. 681, 39 S. E.
503.
If a contract is of a character which under this pro-
vision of the statute of frauds, is required to be in writ-
ing, and it does not meet the requirement of the statute
in that regard, and suit is brought upon it, if the defend-
ant in his answer admits the contract without insisting on
the statute of frauds, he will be treated as having re-
nounced the benefit thereof. But if the defendant by his
answer admits the agreement but pleads and insists upor
the benefit of the statute, he will be entitled to it, not-
withstanding such admission. Mendel v. Miller, 134 Ga.
610, 68 S. E. 430.
Effect of Failure to Invoke Section. — Where this pro-
vision was not pleaded, and there was no demurrer, mo-
tion for non-suit, or objection to testimony, so as to in-
voke a ruling in the court below on that subject, this
court will not grant a new trial on the ground that the
verdict is contrary to law, because it appears that the
contract sought to be enforced should have been in writ-
ing. Johnson v. Latimer, 71 Ga. 470.
Sufficiency of Petition. — The court did not err in sus-
taining the general demurrer and dismissing the suit. The
suit was upon an alleged contract for the sale of certain
goods, as set forth in the plaintiff's petition; and the peti-
tion as amended showed upon its face that the contract
was for the sale of goods to the amount of more than $50.00.
The petition as amended further showed that the con-
tract was not in writing, and failed to show anv part per-
formance thereof, or anything else that would relieve it
from the operation of the statute of frauds. Herbener v.
Boston Oil, etc., Co., 17 Ga. Anp. 437, 87 S. E. 607.
Applied in Linton & Co. v. Williams, 25 Ga. 391; McCaw
Mfg. Co. v. Felder, 115 Ga. 414, 41 S. E. 664; Bass v.
Postal Tel. Co., 127 Ga. 423, 428, 56 S. E. 465; Oiley v.
Lindale Co-Operative Store, 33 Ga. App. 63, 125 S. E. 717.
8. An acceptance of a bill of exchange. Acts
1880-1, p. 62.
See 6 Cum. Dig. 453, 6 Enc. Dig. 583.
Necessity for Signature. — An acceptance of a bill of ex-
change though written upon the bill by the party directed
to pay, but not signed by any one, was not binding as an
acceptance under .this provision. Ingle v. Davis, 81 Ga.
766, 8 S. E. 192.
Efficacy of Oral Promise of Drawee. — As the acceptance
of a bill, to be obligatory, must be made in writing under
this provision, an oral promise by the drawee to pay so
much upon it as may be ascertained to be due has no
efficacy in holding off creditors of the drawer who may
serve garnishment upon the drawee before the bill is either
accepted or paid in whole or in part. Baer v. English &
Co., 84 Ga. 403, 11 S. E- 453.
A written agreement to accept a bill of exchange to be
drawn in the future is valid and binding, if the bill is
drawn in strict accordance with the provisions of the
agreement and within a reasonable time, in favor of any
person who on the faith thereof receives the bill for a
valuable consideration. Parrish v. Taggart-Delph Lum-
ber Co., 11 Ga. App. 772, 76 S. E. 153.
Stated in Atlanta Nat. Bank v. Fertilizing Co., 83 Ga.
356, 9 S. E. 671; Lewin v. Greig, 115 Ga. 127, 41 S. E. 497.
§ 3223. (§ 2694.) Exceptions. — The foregoing
section does not extend to the following cases,
For full treatment, see 6 Cum. Dig. 454, 6 Enc. Dig. 583.
As to specific performance of parol contract for land, see
§ 4634.
Editor's Note. — The first exceptions to the statute of
frauds were adopted by the legislature by the acts 1S53-
4, p. 58. This act provided that the statute of frauds was
not to operate, where there had been a performance in
whole or in part. This act was repealed by act 1855-6, p.
240, although the latter act purported to repeal Acts 1851-
2, p. 243. This was an error of the codifiers. See "Editor's
Note" under § 3222, par. 2. The three present exceptions
were first codified in the code of 1863, in substantially the
same form that they now appear.
Exceptions Liberally Construed. — The courts are rather
inclined to give a liberal construction to the exceptions
which have been established to withdraw cases from opera-
tion of the preceding section. Jackson v. Gray, 9 Ga. 77.
"Mere non-action is not performance, either partial or
complete, under this section and will not, therefore, take
a parol contract out of the statute of frauds." Augusta
Southern R. Co. v. Smith, etc., Co., 106 Ga. 864, 33 S. E.
28; Hesterlee v. Hester lee, 27 Ga. App. 169, 107 S. E. 889.
Sufficiency of Petition. — Where suit is brought to compel
specific performance of a parol contract for land, and no
facts are alleged to bring the case within any of the ex-
ceptions to the statute of frauds, the petition is demur-
rable. Edwards v. Trustees, 147 Ga. 15, 92 S. E. 531.
Charging Exceptions. — There was no error in giving in
charge to the jury the exceptions to the statute of frauds,
contained in this section, the defendant having pleaded the
7th paragraph of § 3222 in defense, and there being evi-
dence to authorize such a charge. Wholesale Mercantile
Co. v. Jackson, 2 Ga. App. 776, 59 S. E. 106.
Cited in Bluthenthal v. Moore, 111 Ga. 297, 36 S. E. 689;
Sherman v. Stephens, 30 Ga. App. 509, 510, 118 S. E. 567.
Applied in Hall v. Wingate, 159' Ga. 630, 126 S. E. 796.
1. When the contract has been fully executed.
In General. — The statute of frauds has no application to
a contract which has been fully performed on both sides.
Johnson v. Watson, 1 Ga. 348; Steininger v. Williams, 63
Ga. 475. See also Strickland v. Jelks, 18 Ga. App. 86, 88
S. E. 906. In addition, see § 3222, par. 7.
Although an agreement was in parol, it was removed,
by execution under this section from the operation of the
statute of frauds; and this is so irrespective of whether
such second assignee became a tenant at will or for the
period of the written lease. Mendel v. Barrett & Son, 32
Ga. App. 581, 124 S. E. 107.
Answer Setting Up Executed Contract. — The allegation
in the answer of the defendant setting up a parol purchase
of the land, fully executed, comes within this exception to
the statute of frauds. Varnell v. Varnell, 156 Ga. 853, 120
S. E. 319.
Other Applications of the Rule. — See 6 Cum. Dig. 454, 6
Enc. Dig. 583.
2. Where there has been performance on one
side, accepted by the other in accordance with
the contract.
See 6 Cum. Dig. 455, 6 Enc. Dig. 584.
Promise to Pay Another's Debt. — Under this section a
promise to pay the debt of a third person is binding when
there has been a full performance by the creditor of the
[ 846 ]
§ 3223
STATUTE OF FRAUDS
§ 3223
conditions of the promise, and which was accepted by th*.
promisor in accordance with the contract. Goolsby v.
Bush, 53 Ga. 353.
An agreement by a corporation to pay the debts of a
partnership, which it succeeded, is held not within the pre-
ceding section because not in writing, where it received the
assets of the partnership as the consideration, there beiny
full performance on one side under this section. In re
Stone -Moore -West Co., 292 Fed. 1004.
This section is not applicable where H. was indebted to
B., and the debt secured by a mortgage which had been
foreclosed; and W. purchased the mortgaged goods from
H., assumed his debt, and gave notes therefor to B.; anJ
M. orally agreed to see that W.'s notes were paid; and B.
thereupon released H. and cancelled the mortgage, there
being no acceptance by M. Bluthenthal v. Moore, 111 Ga.
297, 36 S. E. 689.
Contract for Sale of Land— Tendering Deed. — A parol
contract for the sale of land is not brought within the ex-
ceptions to this section, requiring such contracts to be
in writing, by the vendor's making out and tendering to
the vendee a deed to the land, unless the vendee accepts
the same. Graham v. Theis, 47 Ga. 479.
Same — Same — Acceptance and Possession. — Where, in
consideration of a parol promise, a deed to land is exe-
cuted and delivered, the maker of the promise is not re-
lieved from performing it, by the statute of frauds, there
having been full performance by the maker of the deed and
acceptance together with possession thereunder, by the
other party. Stringer v. Stringer, 93 Ga. 320, 20 S. E-
242.
Same— Executing Deeds.— Where the owner of land, on
payment of the entire purchase price, at the request of one
of the vendees, executes deeds, the oral contract falls
within this exception to the statute of frauds. Flagg v.
Hitchcock, 143 Ga. 379, 85 S. E. 125.
Same— Full Payment.— Full payment for land, accepted
by the vendor, is sufficient performance under this pro-
vision. Rawlins v. Shropshire, 45 Ga. 183.
Contract of Hiring for Year— Performing Duties.— Where
a parol contract was made between the plaintiffs and the
defendant in August, 1867, by which the former were em-
ployed as the agents of the latter for the period of one
year from the 1st of the ensuing October, and the salary
agreed upon with the view of the necessity imposed upon
the plaintiffs by the duties of such agency of employing
clerk, and a clerk was employed and paid by them, such
action amounted to a part performance under this section,
which would prevent the defendant, on refusing to comply,
from setting up the statute of frauds. Barnett Line cf
Steamers v. Blackmar, 53 Ga. 98.
Sufficiency of Petition. — The petition, construed as a
whole, showed that the contract was oral; but as it fur-
ther showed a full performance thereof on the part of the
plaintiff, which was accepted by the other party to the
contract, the contract did not fall within the statute of
frauds. Alford v. Davis, 21 Ga. App. 820, 95 S. E. 313.
See also English v. Richards Co., 109 Ga. 635, 34 S. E. 1002.
3. Where there has been such part performance
of the contract as would render it a fraud of the
party refusing to comply, if the court did not
compel a performance. Acts 1853-4, p. 58;
1855-6, p. 240.
See 6 Cum. Dig. 455, 6 Enc. Dig. 584.
When Whole Performance Necessary to Prevent Fraud.
— Equity will decree the whole performance of an agree-
ment which is within the Statute of Frauds, whenever
there has been such a part performance as that the whole
performance is necessary to prevent a fraud; and the whole
performance is necessary to prevent a fraud in a case
where the parties have proceeded so far on the faith of
the agreement, that they can not be restored to their
statu quo nor adequately compensated in damages, by
avoiding the agreement and leaving them to their action
for damages. Chastain v. Smith, 30 Ga. 96. See also Gil-
more v. Johnston, 14 Ga. 683.
Part Performance Must Be Done in Pursuance of Con-
tract.— The act of part performance done must be in per-
formance of and in pursuance of the parol contract. The
contract, it must be remembered, is void at law, and is
only enforced because the courts of equity have, for the
prevention of fraud, set up certain defined exceptions to
the statute by this section in which they will grant relief.
Simonton v. Liverpool, etc., Ins. Co., 51 Ga. 77, 82.
Part performance by the seller of another contract, ma-
terially different from the contract sued upon, is not a
part performance of the contract sued upon under this
section and therefore will not operate to take the contract
sued upon without the statute of frauds. Curry Grocery
Co. v. Brown, 30 Ga. App. 711, 119 S. E. 217.
Non- Action as Performance. — See ante, general note, un-
der this section.
Damages for Breach. — A party to a parol contract which
would ordinarily fall within the statute of frauds, who has
so far performed the same under this section as to render
it a fraud for the other party to repudiate the agreement,
is not prevented by the statute from recovering damages
for its breach. McLeod v. Hendry, 126 Ga. 167, 54 S. E-
949; Clemons v. Estes, 24 Ga. App. 480, 101 S. E. 312. See
also Finney v. Cadwallader, 55 Ga. 75.
A contract of guaranty is no less subject to the pro-
visions of this section than are other contracts therein re-
ferred to. Sikes v. Mallonee, 11 Ga. App. 632, 75 S. E.
988. See 6 Cum. Dig. 456, 6 Enc. Dig. 586.
The surrender of a bill of lading by a bank undoubtedly
constituted such a part performance as would have sup-
ported the parol agreement by the drawee to accept the
draft and have it charged against his account with the
collecting bank. Empire Cotton Oil Co. v. Sellers, 18 Ga.
App. 377, 383, 89 S. E. 454.
One Firm Buying Out Another. — An agreement by one
firm buying out another, to pay off a lien, to prevent fore-
closure, is taken out of the statute of frauds as an ex-
ception under this section, by performance. Wooten v.
Wilcox, etc., Co., 87 Ga. 474, 13 S. E. 595.
Contracts Relating to Land. — See 6 Cum. Dig. 456, 6
Enc. Dig. 588.
The statute of frauds will apply to a verbal contract for
the sale of land, unless there is part performance, or some
matter to prevent it from so applying. Lumpkin v.
Johnson, 27 Ga. 485; Alderman v. Chester, 34 Ga. 152.
Same — Nearly Performed on Both Sides. — When a ver-
bal contract, as to land, has been so largely acted on as
to be almost fully performed on both sides, the effect is
to take the case out of our statute of frauds. Knight v.
Knight, 28 Ga. 165.
Same — Part Execution of Substance of Agreement. —
Wherever there has been a partial performance of a parol
agreement for the conveyance of land, within the statute
of frauds, a part execution of the substance of the agree-
ment, acts done and performed, unequivocally referring to
and resulting from the agreement, and such that the party
in whose favor the agreement was made would suffer an
injury amounting to fraud, by the refusal of the other
party to execute it, a court of equity will in such cases
decree a specific performance of the agreement. Robson v.
Harwell, 6 Ga. 589, 590.
Same — Payment of Purchase Money. — Payment of the
purchase money, in the case of a parol contract, concern-
ing lands, is not, per se, such performance, or part per-
formance, as will take the case out of the Statutes of
Frauds. But such payment, taken in connection with
other acts, as the taking of possession and putting im -
provements on the land, will constitute such performance.
These other acts, however, must unequivocally refer to,
and result from the agreement. Black v. Black, 15 Ga. 445.
See also Terrell Land Co. v. Newberry, 29 Ga. App. 77, 113
S. E. 817.
Same — Same — Possession. — Where partial payment, ac-
companied by possession, is relied upon to take a parol
contract for the sale of land out of the operation of this
provision of the statute of frauds, the possession of the
vendee must be actual, definite, and exclusive of the
vendor, and with the express or implied consent of the
vendor. Kinderland v. Kirk, 131 Ga. 454, 62 S. E. 582.
Same — Same — Same — Improvements. — When the defend-
ant in execution remains in possession of the land under
some parol agreement with the purchaser as to its re-
demption, makes valuable improvements thereon, and the
purchaser acknowledges himself satisfied as to the man-
ner in which the repayment has been arranged, the tenant
acquires a complete equity to the premises, and one upon
which he may rely to protect his possession against an
action brought by the purchasers. Vanduzer v. Christian,
30 Ga. 336.
The purchase of land, payment of the consideration, tak-
ing possession and making valuable improvement, is suffi-
cient to relieve a parol agreement for the purchase from
the operation of the statute of frauds. Scott v. Newsom,
27 Ga. 125.
Same — Full Performance on One Side.— When an agree-
ment is entered into, upon sufficient consideration to sell
real and personal property and divide the proceeds, and
the same has been fully performed, on one side, the other
party will be decreed to execute it in full, notwithstanding
the agreement is by parol, and relates to land as well as
personalty. Watkins v. Watkins, 24 Ga. 402.
[ 847 ]
§ 3223
ACTS VOID AS AGAINST CREDITORS
§ 3224
Same— Part Payment of Purchase Price and Agreement
to Sell to Another. — Where the allegations of the petition
go merely to show that the plaintiff paid $10 on the pur-
chase price of land bought under a parol contract, and that
he proceeded to bargain the land to another at a named
profit, which he seeks to recover, the averments are not
sufficient to show such part performance of the parol con-
tract as would prevent it from falling within the statute
of frauds, and would not authorize the maintenance of
such claim for damages. Wimberly v. Bryan, 55 Ga. 198;
Hill v. Jones, 7 Ga. App. 394, 66 S. E. 1099. This ruling
is not to be taken to mean that such a purchaser would
be precluded from maintaining his action to recover the
portion of the purchase-price actually paid. Clemons v.
Estes, 24 Ga. App. 480, 101 S. E. 312.
Same — Agreement to Pay Difference of Purchase Price.
— Where one agrees to purchase land and pay for part of
it, and another orally agrees to pay him the difference,
the case is not within the statute of frauds, where notes
were given by the first party for the entire purchase.
Ambrose v. Ambrose, 94 Ga. 655, 19 S. E- 980.
Same — Building of Party Wall. — The building of a party
wall by the plaintiff, under a parol agreement with the de-
fendant that he would pay for one -half of as much of the
wall as he used, when he built, is such a part performance
of the contract under this section as takes it out of the
Statute of Frauds. Rawson v. Bell, 46 Ga. 19.
Landlord and Tenant — Possession and Payment of Rent.
— A parol contract establishing the relation of landlord and
tenant if within the statute of frauds, possession there-
under and payment of rent for two months would take the
contract out of the operation of the statute by virtue of
this section. Steininger v. Williams, 63 Ga. 475.
Same — Repairing Fences and Paying Rent. — Where the
tenant repaired fences under a parol contract and paid the
rent, except of the cotton, which he retained, the landlord
still owing upwards of $40.00 after allowing for the rent
cotton, for work done in repairs:- Held, there was such a
performance of the contract by the tenant under this sec-
tion, that the landlord could not, on the expiration of the
first year, treat him as a tenant at will, so as, on a no-
tice to quit, without payment, or tender of what was due
for repairs, "to be entitled to a warrant to dispossess him
as a tenant holding over. Petty v. Kennon, 49 Ga. 468.
Contract Not to Be Performed Within One Year. — See
6 Cum. Dig. 460, 6 Enc. Dig. 592.
The part performance as provided for in this provision
which will take a contract out of the operation of the
statute of frauds is such as is, within the terms of the
agreement, an essential part of the contract, and, as such,
is essential to the performance of the contract. The fact
that the person who has contracted to serve another, one
year, to commence at a future day, enters upon the per-
formance of his contract does not take the case out of the
statute. Bentley v. Smith, 3 Ga. App. 242, 59 S. E. 720.
Same — Rent for Five Years. — A parol contract for the
rent of lands for a period of five years is invalid, in the
absence of such part performance as will take it out cf
the statute of frauds as provided in this provision. Mar-
shall v. Hicks, 159 Ga. 871, 127 S. E. 273.
Party Going to Another City and Opening Business. —
After part performance of an oral contract to the extent
of going to New York and opening business, the defense
of the Statute of Frauds can not set up to a contract
which stipulates that one party shall go to that city and
there open and conduct a business on his own account for
the sale of a commodity to be furnished by the other party.
Fontaine v. Baxley, etc., Co., 90 Ga. 416, 17 S. E- 1015.
Contracts for Sale of Goods, etc. — A contract may be en-
forceable under this section where there is no delivery and
acceptance under § 3222, subsection 7. Castlen v. Marsh-
burn, 8 Ga. App. 400, 404, 69 S. E. 319. See § 3223, par. 7.
See also, 6 Cum. Dig. 450, 6 Enc. Dig. 580.
Same — Possession and Payment. — Under a written con-
tract modified by a parol contract the plaintiff delivered
125 bales of cotton to the defendant, who retained 47 bales
and paid the plaintiff for them. This partial performance
of the modified contract was sufficient under this section
to take it out of the statute of frauds. Strickland v. Jelks,
18 Ga. App. 86, 88 S. E. 906.
Same — Taking Inventory and Announcement of Trans-
fer of Goods. — Allegations in a petition which seeks to re-
cover on a contract, to the effect that in pursuance of the
contract the plaintiff proceeded with the taking of an in-
ventory, and that at the solicitation of the defendants the
plaintiff made announcement to various persons of the
transfer of the goods in question and sent to them orders
to be filled for defendants in lieu of the plaintiff, are not
sufficient to take the case out of the statute on the ground
of a part performance of the contract under this section
by the plaintiff. Brunswick Grocery Co. v. Lamar, 116 Ga.
1, 42 S. E. 366.
Same — Purchaser of Stock Giving Up Lucrative Posi-
tion.—If the holder of stock agrees to sell the same at a
stipulated price, on condition that the purchaser shall give
up a lucrative position and enter into the service of the
corporation at a fixed salary, and the latter complies with
this condition, the contract will be taken out of the stat-
ute of frauds by such performance on his part under this
section. Hightower v. Ansley, 126 Ga. 8, 54 S. E. 939.
Same — Delivery Under One of Two Separate Contracts.
—Where two parties simultaneously agree with a third
party to sell to the latter certain goods which are in two
separate and distinct lots, one lot being the property of
one of the sellers and the other lot being the property of
the other seller, the transaction constitutes two separate
and distinct contracts, although one of the sellers is the
agent of and acts for the other seller and only one agree-
ment is made; and a delivery by one of the sellers of the
goods bought is not such a part performance of the con-
tract of the other party as will take the latter contract
out of the statute of frauds under this section. Smith v.
Bradshaw, 26 Ga. App. 304, 106 S- E. 20.
Same — Negotiation of Resale. — -Where it is agreed in ana
oral contract for the sale of goods that the seller is not to
perform until the purchaser has negotiated a contract for
resale, the negotiation of such a contract for resale by the
purchaser in compliance with the condition is not such a
part performance of the original contract under this sec-
tion as will take it out of the statute of frauds, if there
has been no acceptance and receipt of a part of the goods-
by the buyer, nor any giving of earnest money to bind the
bargain or any part payment; such part performance by
the buyer not being such part performance of the contract
as would render it a fraud of the party refusing to com-
ply. Smith v. Bradshaw, 26 Ga. App. 304, 106 S. E. 20.
Same — Fruit Packed and Shipped. — Fruit packed and
shipped by the seller in pursuance of an oral agreement
would be performance within this section. Armour & Co.
v. Ross, 110 Ga. 403, 413, 35 S. E. 787.
Same — Sufficiency of Evidence of Performance. — There
was sufficient evidence in this case to show that a parol
contract for the delivery of cross-ties was taken out of
the statute by part performance. Bryan v. Southwestern
R. Co., 41 Ga. 71.
Parol Acceptance of Draft. — It is doubtless true that un-
der this exception a case might arise where even a verbal1
promise to accept a bill would be enforced. But even if
such a promise will ever be enforced, it would seem to be
clear that it must have been made directly to the party
who parted with the money or other valuable property
upon the faith of the promise. Parrish v. Taggart-Delph
Lumber Co., 11 Ga. App. 772, 776, 76 S. E. 153.
The sale of goods on faith of parol acceptance of draft,
is not such part performance as to take the case out of the-
previous section, when the acceptance is not made as an
inducement to, or in contemplation of the sale. Lewin v.
Greig, 115 Ga. 127, 128, 41 S. E. 497.
Sufficiency of Petition. — A petition contains some gen-
eral allegations of possession and part performance of the
contract by the plaintiff; but when the facts stated in
connection therewith are considered, the allegations are
insufficient to comply with this section. Edwards v. Trus-
tees, 147 Ga. 15, 92 S. E. 531.
Questions for Jury. — Where the evidence tends to prove
a part performance of a parol contract, the Court should
permit the case to go to the jury, and instruct them as to
the legal principles applicable to the facts proved. Bryan
v. Southwestern R. Co., 37 Ga. 26.
Stated in Stone Mountain Granite Corp. v. Patrick, 19'
Ga. App. 269, 91 S. E. 286.
Applied in Nellis & Co. v. Houser, 33 Ga. App. 266, 125
S. E. 790; Norman v. Shealey, 33 Ga. App. 534, 126 S. E-
887.
ARTICLE 2.
Acts Void as against Creditors.
§ 3224. (§ 2695.) Void acts.— The following
acts by debtors shall be fraudulent in law against
creditors and others, and as to them null and •
void, viz.:
Cross References. — For full treatment, see 6 Cum. Dig.
481, 6 Enc. Dig. 481. As to corporation assigning for bene-
fit of creditors, see § 3231. As to legislative power to punish
for property concealment, see § 6387. As to fraudulent
transfers by banks, see § 2360.
[ 848 ]
«<
§ 3224
ACTS VOID AS AGAINST CREDITORS
§ 3224
Editor's Note.— Prior to the adoption of the Code of 1863,
the validity of conveyances made to defraud creditors was
determined by the act of 13th Elizabeth. When that code
was adopted taking this section from the act of 1818 (Cobb,
p. 168), however, such conveyances were declared null and
void simply as to creditors (§ 1954, Code 1863). The same-
restriction was made by § 1942 of the Code of 1868, and by
§ 1952 of the Code of 1873. While this provision of the
Code of 1873 was in force, the court had under considera-
tion the case of Westmoreland v. Powell, 59 Ga. 256. There..
P. sued W. to recover damages for a trespass and the ques-
tion arose, whether P. was such a creditor as rendered a
deed void as to him. In considering that question, the
court held that the statute of 13th Elizabeth was not re-
pealed by § 1952 of the Code of 1873, but that such statute
was in force in this State. The statute of the 13th Eliza-
beth (Schley's Digest, 214) declares that conveyances made
for the purpose and with the intent to delay, hinder, or
defraud creditors and others of their just and lawful ac-
tions, suits, debts, accounts, damages, etc., are void. Fol-
lowing this decision, the compilers of the Code of 1895 added
to the section found in the Code of 1882 the words "and
others." The term "and others," now appearing in this sec-
tion, simply means to include with creditors such persons,
other than creditors, who have any rightful claim or de-
mand against the grantor for which such person is entitled
to have a judgment in any court of law or equity. A clear
enunciation of the statute of the 13th Elizabeth is, that
such conveyances are void only as to such persons. See
Boswell v. Boswell, 147 Ga. 734, 736, 95 S. E. 247. See also
McDowell v. McMurria, 107 Ga. 812, 815, 33 S. E- 709. In
addition, see the notes following.
In holding that the statute of Elizabeth was still in force
the case of Westmoreland v. Powell, 59 Ga. 256, stated that
insofar as tort feasors were embraced in that statute the
same law applied in Georgia. And in Banks v. McCand-
less,. 119 Ga. 793, 47 S. E. 332, it was held a plaintiff in
trover is protected -by this section.
Section Liberally Construed. — See 6 Cum. Dig. 481, 6 Enc.
Dig. 610.
A deed void as to creditors may, nevertheless, be good
between the parties. Jones v. Dougherty, 10 Ga. 273.
Charging These Provisions Together. — Though the trans-
action be one of sale to persons not creditors, and falls un-
der the second paragraph of this section, yet for illustra-
tion, the court may give in charge to the jury the first
paragraph of this section, as well as the second, since they
serve to illustrate each other with regard to benefits re-
served by the debtor. Cribb & Co. v. Bagley, 83 Ga. 105,
10 S. E. 194.
Preferences for Benefit of Creditors.— See notes to § 3230.
1. Every assignment or transfer by a debtor,
insolvent at the time, of real or personal prop-
erty, or choses in action of any description, to
any person, either in trust or for the benefit of,
or in behalf of, creditors, where any trust or ben-
efit is reserved to the assignor or an}^ person for
him.
I. In General.
II. Reservation of Trust or Benefit.
III. Insolvency of Grantor.
Cross References.
For full treatment, see 6 Cum. Dig. 490, 6 Enc. Dig. 635;
6 Cum. Dig. 481, 6 Enc. Dig. 611. As to sales to defraud
creditors and purchasers, see § 4109. As to gifts void
against creditors, see § 4149. As to fraudulent omission in
schedule for homestead, see § 3380. As to fraudulent as-
signments of partnership property, see § 3210.
I. IN GENERAL.
Editor's Note. — This provision was codified from an act
of legislature (Act 1818,' Cobb, p. 168) and under its pro-
visions as it appeared in the Code of 1863, an assignment
by an insolvent debtor of his property, in trust for the
benefit of any one or more of his creditors, to the exclusion
of any other creditor, in equal participation of such prop-
erty, was declared to be void. The act of 1865-6, p. 29, re-
pealed this provision and enacted a new paragraph in its
stead, under which, only such assignments of property by
an insolvent debtor are declared void, where any trust or
benefit is reserved to the assignor, or any person for him,
see § 3230. See also Embry v. Clapp, 38 Ga. 245, 250.
Since this act of 1865-6 was codified, it has remained in
force to date. The distinction between the two provisions
should be kept in mind by the searcher, so that he may
understand the reason for the holdings prior to 1866. See
"Editor's Note" under § 3230.
Only such early cases are included in this note, as will
be of help to the searcher in applying the present law. For
cases under the earlier act, see 6 Enc Dig. 611, 635.
Assignment Excluding Creditors Under this Provision. —
Under this section as it now stands an insolvent debtor
may make an assignment of his property in trust, bona
fide, for the benefit of one or more creditors, to the exclu-
sion of others: Provided, no trust or benefit is reserved t<>
the assignor, or any person for him. Embry v. Clapp, 38
Ga. 245.
Effect of Assignment on Non-Accepting Creditor. — An
assignment by an insolvent debtor for the benefit of his
creditors, provided they would take the property thereby
conveyed in full satisfaction of their claims, is not binding
on a creditor who refuses to accept the same. McBride &
Co. v. Bohanan, 50 Ga. 527, 528. See also Miller v. Conklin
& Co., 17 Ga. 430.
Assignment for Equal Benefit of Creditors Made in
Foreign State. — An assignment by a debtor for the equal
benefit of all his creditors, valid under this section violates
no law or public policy of this state. Therefore, such an
assignment lawfully made in South Carolina by a resident
thereof, will pass personal assets found in Georgia. Millet
v. Kernaghan, 56 Ga. 155.
Purpose of Defrauding Creditors. — The declaration by
this provision of this section is a declaration of substantive
law, and, so far as we know, has always been so considered;
and no court would ever inquire whether the assignment
was actually made for the purpose of defrauding creditors
of the assignor or not. Jaques, etc., Co. v. Carstarphen
Warehouse Co., 131 Ga. 1, 17, 62 S. E. 82.
Power of Sale Given Trustee by Fraudulent Transfer. —
If an assignment or transfer prohibited by this section is
made to a named trustee with power of sale, an execution
of the power conveys no title to a purchaser, and a deed
purporting to convey to him any part of the property so
transferred is likewise void. Coleman, etc., Co. v. Rice,
115 Ga. 510, 42 S. E. 5.
Attacking Assignment. — An assignment or transfer by a
debtor, insolvent at the time, of any kind or character of
property, when any trust or benefit is reserved to the as-
signor, is fraudulent and void under this section. Being
void, such transfer or assignment may be attacked by a
party interested, in either a direct or collateral legal pro-
ceeding, when it is sought to be set up. Coleman, etc..
Co. v. Rice, 115 Ga. 510, 42 S. E. 5.
II. RESERVATION OF TRUST OR BENEFIT.
See 6 Cum. Dig. 490, 6 Enc. Dig. 635.
Corporation Purchasing Another. — As to claims against
one corporation whose property has been purchased by
another, the general law would apply, prohibiting any
transaction in fraud of creditors, and preventing an as-
signment by an insolvent wherein it or the stockholders
reserved any benefit or trust. Citing this section. Hawk-
ins v. Central, etc., R. Co., 119 Ga. 159, 46 S. E. 82; White
v. Atlanta, etc., R. Co., 5 Ga. App. 308, 314, 63 S. E. 234.
Conveyance With Reversionary Clause. — The stipulation
in a deed of conveyance by a debtor to his creditor, that
"It is understood that should the said grantee depart this
life before the grantor, then the above-described property
is to revert back to the said grantor and become his prop-
erty as if this deed had not been made," did not render the
deed void because repugnant to this paragraph. Davie V.
Tanner, 150 Ga. 770, 105 S. E. 355.
Reservation of Surplus — Under Act of 1818. — See 6 Enc.
Dig. 636.
Same — Sale by Creditor. — A deed to land given by an in-
solvent debtor to a creditor in trust to secure the payment
of his debt, which deed provides that if the debt is not paid
in four months the creditor may sell the land at public out-
cry, and reimburse himself out of the proceeds for his debt,
cost and expenses, and that he is "to pay the balance, if
any there is," to the grantor, is not, on account of such
provision for payment of the balance, void under this sec-
tion. The law would give that direction to the balance
without the provision. Lay v. Seago, 47 Ga. 82.
Conveyance Larger Than Debt. — The conveyance of ef-
fects in amount larger than the debt to be paid does not
make the assignment void, under this section; but it is a
badge of fraud, to be considered by the jury. Banks v.
Clapp, 12 Ga. 514, 515.
The transaction between the plaintiffs in error and the
trustees of the Atlanta Clearing-House Association was in
the nature of a loan and the pledge of collaterals to secure
the same; and although the amount of the collaterals ex-
ceeded the amount of the debt they were intended to se-
cure, no such trust as is prohibited by this paragraph was
thereby created. Booth v. Atlanta Clearing-House Ass'n.
132 Ga. 100, 63 S. E. 907.
849 1
§ 3224
ACTS VOID AS AGAINST CREDITORS
§ 3224
Same— Provision that Excess to Be Returned to Grantor.
—An assignment made by an insolvent bank to pay an ex-
isting debt to a creditor, is not void in law by the general
law, or under the Act of 1818, because the amount of ef-
fects assigned is larger than would be reasonably sufficient
to pay the debt; and because there is a stipulation that the
excess shall be returned to the bank. Such a transfer held
to be valid in law, per se. The excess in this case, held not
to be even a badge of fraud in fact, but a reasonable al-
lowance to cover bad debts and the expenses of collection;
and held, further, that the stipulation that the excess shall
be returned upon the face of this assignment to the bank,
does not create such a trust as is condemned by the Act of
1818. Carey v. Giles, 10 Ga. 9.
Possession of Property after Conveyance. — See 6 Cum.
Dig. 487, 6 Enc. Dig. 622; 6 Enc. Dig. 676. The possession
of property, real or personal, remaining with the vendor
after an absolute conveyance is evidence of fraud. Peck v.
Land, 2 Ga. 1; Fleming v. Townsend, 6 Ga. 103; Perkins v.
Patten, 10 Ga. 241; Smith v. McDonald, 25 Ga. 377; Willing -
ham v. Smith, 48 Ga. 580; Stephens v. Southern Cotton Oil
Co., 147 Ga. 410, 94 S. E. 245; Virginia-Carolina Chemical
Co. v. Hollis, 23 Ga. App. 634, 99 S. E. 154; Greene v. Mat-
thews, 31 Ga. App. 265, 120 S. E- 434.
If the debtor, recently after conveying to the claimant
absolutely, is in possession of the premises, and so con-
tinues until the levy is made, his possession, in the ab-
sence of evidence to show when or how it commenced, may
be presumed to have existed at the date of the conveyance;
and such continuous possession, unexplained, is a badge of
fraud. Collins v. Taggart, 57 Ga. 355.
When a creditor, who is the mortgagee, forecloses his
mortgage, and purchases the mortgaged property at sher-
iff's sale under it, and suffers the property so purchased
to remain in the possession of the mortgagor after the
sale, such retention of possession, by the mortgagor, is a
badge of fraud as against other judgment creditors. Wil-
liams v. Kelsey, 6 Ga. 365.
Same — During Life. — If it be agreed between an insolvent
debtor and the purchaser of property from him, that he
shall remain in possession thereof during his life, it is
such a reservation of a benefit to the debtor under this
section as may avoid the conveyance. Barber v. Terrell,
50 Ga. 146.
Same — Consistent With Object of Deed. — Where personal
property is conveyed, by a husband, to a trustee for the
benefit of his wife and children, the subsequent possession
of the husband being consistent with the object of the
deed, is not evidence of fraud. Clayton v. Brown, 17 Ga.
217.
Same — Rebutting Presumption of Fraud. — Proof of the
payment of a valuable consideration for property, rebuts
the presumption of fraud arising from the continued pos-
session by the seller. Scott v. Winship, 20 Ga. 429.
Indorsement Releasing Benefit. — Even if an assignment,
as originally executed, was obnoxious to the provisions of
this section it would not be so after the execution of an
indorsement releasing the benefit and its acceptance by the
assignee. Cohen & Sons v. Summers, 54 Ga. 501, 502.
III. INSOLVENCY OF GRANTOR.
Effect of Insolvency — As to Corporations. — The fact that
a man is insolvent when he transfers his effects, does not
make the conveyance void; and the same rule applies to
corporations or artificial persons, as to natural. Thornton
v. Lane, 11 Ga. 459. See also Hadden v. McQueen, 138 Ga.
406, 75 S. E. 333; 6 Cum. Dig. 494, 495. And see notes to
§ 4149.
Petition Need Not Allege that Assignee Had Notice of
Insolvency. — In an action to set aside as fraudulent an
assignment or transfer of property under this section al-
leged to have been made by an insolvent debtor in trust
or for the benefit of one of his creditors, where a benefit
was reserved to the debtor, the petition need not allege
that the assignee or transferee had notice of the debtor's
insolvency at the time of the transfer. McKenzie v.
Thomas, 118 Ga. 728, 45 S. E- 610.
Charges. — A charge that if a deed "was a voluntary con-
veyance on the part of the grantor, and was fraudulently
made with intention of defeating his creditors, it would be
void" was not error as against the movants, by reason of
this section. Jackson v. Kight & Sons, 159 Ga. 584, 126
S. E. 379.
2. Every conveyance of real or personal es-
tate, by writing or otherwise, and every bond,
suit, judgment and execution, or contract of any
description, had or made with intention to delay
or defraud creditors, and such intention known
to the party taking. A bona fide transaction on
a valuable consideration, and without notice or
ground for reasonable suspicion, shall be valid.
I. In General.
II. Fraudulent Intent.
III. Character of Transaction and Badges of Fraud.
IV. Bona Fide Purchasers.
Cross References.
For full treatment, see 6 Cum. Dig. 483, 6 Enc. Dig. 614.
As to sales to defraud creditors and purchasers, see § 4109.
As to presumption of fraud in sales of goods in bulk, see
§§ 3228, 3229.
I. IN GENERAL.
This section clearly refers to creditors at the time of
the conveyance. Mitchell v. Langley, 148 Ga. 244, 246, 96
S. E. 430.
Fraudulent Conveyance Good as Between Parties. — A
deed made to defraud creditors, though void as to them
under this section is good between the grantor and the
grantee, and the former after executing such deed has no
title to the property thereby conveyed, and therefore can
not have the same set apart and exempted as a homestead
under the laws of this State. "In attempting to place his
property beyond the reach of his creditors, he has placed
his exemptions beyond his own reach." McDowell v. Mc-
Nurria, 107 Ga. 812, 33 S. E. 709.
Conveyance Not Set Aside at Instance of Grantor. —
Under this section, the courts will not set aside a convey-
ance to hinder, delay, or defraud creditors, at the instance
of the grantor. Watkins v. Nugen, 118 Ga. 375, 45 S. E-
260; Tune v. Beeland, 131 Ga. 528, 530, 62 S. E. 976.
Condemnation of Property by Debtor. — If a debtor trans-
fers property to defraud his creditor, the property may be
condemned by the creditor, although the transfer is good
as against the debtor, and although the condemnation will
work to his benefit; but it can not be condemned if there
is any arrangement between the creditor and the debtor,
by which the debt is paid off, or by which the debtor is
to have the proceeds of the condemned property. Feagan
v. Cureton, 19 Ga. 404.
Rights of Administrator to Recover Property. — Where a
debtor, to defraud his creditors under this section .con-
veys his property to another, his administrator can not
maintain an equitable action against such grantee to re-
cover the property for the purpose of paying the creditors
of the decedent. Boswell v. Boswell, 147 Ga. 734, 95 S. E-
247; Crosby v. De Graff enreid, 19 Ga. 290.
Charging this Section with Section 3230. — See notes to §
3230.
Cited in Fourth Nat. Bank v. Consolidated Steamboat
Co., 12 Ga. App. 864, 76 S. E. 1057.
II. FRAUDULENT INTENT.
See 6 Cum. Dig. 484, 6 Enc. Dig. 617. See also, post, this
note, "Bona Fide Purchasers," IV.
Necessity for Intent. — It is impossible that a sale can de-
fraud creditors, unless it was made with a fraudulent . in-
tent; and the nature of the intent will not be presumed as
matter of law, but must be inferred by the jury from the
facts in evidence. Nicol v. Crittenden, 55 Ga. 497; Almand
v. Thomas, 148 Ga. 369, 96 S. E. 962.
Effect of Intent. — Under this section if a debtor con-
veys his property with intent to delay or defraud his credi-
tors, and the grantee takes with knowledge of such intent,
the land can be subjected to the judgment of one of such
creditors, rendered after the conveyance. If the convey-
ance is not made with such intent, but is a bona fide trans-
action on a valuable consideration and without notice or
ground for reasonable suspicion, it is valid. Horton v.
Black, 137 Ga. 577, 73 S. E. 833.
Same — Knowledge of Grantee. — If a defendant sells his
property in order to prevent his creditors from making
their claims out of it, the sale will be void as to him; and
if at the time of the sale the purchaser has reasonable
ground to suspect that such is his object, the sale will be
void also as to the purchaser under this section. Smith v.
Wellborn, 75 Ga. 799; Greene v. Matthews, 31 Ga. App. 265.
120 S. E. 434; Virginia-Carolina Chemical Co. v. Hollis, 23
Ga. App. 634, 99 S. E. 154. See also, McLendon v. Rey-
nolds, 160 Ga. 763, 129 S. E. 65.
Under this section a fraudulent intent in the execution
of a deed, upon the part of the grantor, which was un-
known to the grantee and which he had no reasonable
ground to suspect, will not vitiate the title of the latter
Hollis v. Sales, 103 Ga. 75, 29 S. E. 482. See also Lamkin
v. Clary, 103 Ga. 631, 637, 30 S. E. 596.
This provision in terms, applies to a conveyance made
by one of his own property, with an intention to delay or
defraud known to the taker. Jones v. Foster, 150 Ga. 277,
[ 850]
§ 3224
ACTS VOID AS AGAINST CREDITORS
§ 3224
103 S. E- 491. See also Ernest v. Merritt, 107 Ga. 61, 32
S. E. 898.
Same— Deed Made Also to Secure Debt. — Under this
section, an absolute deed made with intent to delay or
defraud creditors, though made also to secure a debt, is
void as against creditors if the grantee takes it with no-
tice of the fraudulent intention. Palmour v. Johnson, 84
Ga. 91, 10 S. E- 500; McLendon v. Reynolds, 160 Ga. 763,
129 S. E. 65.
Same — Full Consideration. — A creditor, or third person,
may pay a full and fair price to an insolvent debtor, for
property, still, if the purchase if made with intention to
delay or defraud creditors of their rights, it is void as to
them. Peck v. Land, 2 Ga. 1.
Intention Not Presumed. — That a given act was followed
necessarily by delay to creditors, in the particular case,
however strong as a circumstance to be weighed by the
jury, is not ground for presuming, as matter of law, that
it was intended to have that effect. Nicol v. Crittenden,
55 Ga. 497.
Delay, Hinder or Defraud are Disjunctive. — In the trial
of an action by a creditor to set aside and cancel a fraudu-
lent conveyance, it was inaccurate and therefore erroneous
to charge that if the debtor made the conveyance with in-
tention to "delay, hinder and defraud" his creditors, it
would be void. The acts voiding the conveyance should
have been stated disjunctively. Stating them conjunctively
imposed upon the creditor a greater burden than the law
does. Evans v. Coleman, 101 Ga. 152, 28 S. E. 645.
Verdict Finding Intent to Delay Merely. — On the trial
of an issue before a jury as to whether a conveyance or
lien was created by the debtor with intent to delay or de-
fraud creditors under this section, and with such intent
known to the party taking, a verdict finding no such in
tent to defraud, but an intent to delay, is not void for
inconsistency or uncertainty. A substantial right of the
creditor is involved in the time of performance by the
debtor of his contract, and the debtor who attempts to
postpone the time of payment endeavors to deprive his
creditor of a valuable right, and thereby perpetrates a
legal fraud, it matters not what his motive may be in
such act. Monroe Mercantile Co. v. Arnold, 108 Ga. 449,
34 S. E. 176.
Questions for Jury. — Under this section, whether a con-
veyance to a wife was made with the intention to delay or
defraud his creditors, and whether such intention was
known to the party taking, were all questions for the jury,
under the evidence and a proper charge. Primrose v.
Browning, 59 Ga. 69.
Plea Failing to Allege Intent or Notice. — A plea to an
action of ejectment, to the effect that a certain deed, con-
stituting one link in the plaintiff's chain of title, was made
in fraud of the rights of creditors, under this section, un-
der whom defendants hold and is fraudulent and void but
which did not allege intent to defraud or notice to the
grantee should, on motion, be stricken. Baird v. Evans, 58
Ga. 350.
OF TRANSACTION AND BADGES
OF FRAUD.
488, 6 Enc. Dig. 629; 6 Cum. Dig. 486,
III. CHARACTER
See 6 Cum. Dig.
6 Enc. Dig. 620.
Transactions between near relatives are to be scanned
with care and scrutinized closely, and slight evidence of
fraud shown between them may be sufficient to set the
transaction aside. McLendon v. Reynolds, 160 Ga. 763, 129
S. E. 65.
Sale of Insolvent Partnership Assets and Agreement by
Purchaser to Employ Partner. — The mere fact that in a
sale of all its assets made by an insolvent partnership,
there is an agreement by the purchasers to employ one of
the partners at a stipulated compensation per month to
manage the business, will not per se render the sale void
as against creditors. If there was no intention to defraud,
delay or hinder the creditors, and if the sale was for full
value above and beyond the agreement for employment,
the transaction was valid. Cribb & Co. v. Bagley, 83 Ga.
105, 10 S. E. 194; McKenzie v. Thomas, 118 Ga. 728, 736, 45
S. E- 610.
One Corporation Purchasing Another. — See ante, this
note, par. 1, "Reservation of Trust or Benefit," II.
Purchase of Judgment by Attorney. — Under this sec-
tion, the purchase by an attorney at law, from a client or
her agent, of a judgment or execution belonging to the
client in the hands of the attorney for collection, is pre-
sumptively invalid as against the client's creditors.
Stubinger v. Frey, 116 Ga. 396, 42 S. E. 713.
An assignment of assets of a bank, insolvent at the time,
and about making a general assignment, and against whicli
proceedings are pending to revoke its charter, made to a
creditor cognizant of these things, and by collusion with
him to defraud the other creditors: Held, to be void; and
that the assets so assigned to him is a trust fund, to be
applied to the payment of the debts of the corporation.
Hightower v. Mustian, 8 Ga. 506.
Bankrupt Mortgaging Entire Stock and Pledging Choses
for Loan. — Where a bankrupt, with knowledge of in-
solvency, mortgaged its entire stock of goods and pledged
its choses in action for a large loan secured by a demand
note, and used the proceeds to pay three creditors, leav-
ing a considerable number unprotected, and the lender had
reasonable grounds for suspicion that the transfer was
made with intent to delay the bankrupt's other creditors,
it was invalid, under this section providing that every
conveyance made with intention to delay or defraud credi-
tors, known to the party taking the same, or in case the
latter shall have ground for reasonable suspicion thereof,
shall be fraudulent and void against creditors, and was
therefore unsustainable in bankruptcy. In re Walden
Bros. Clothing Co., 199 Fed. 315.
Withholding Mortgages from Record. — A mortgage
given for valuable consideration more than four months
before the petition was filed, held fraudulent and void as
to creditors because fraudulently withheld from record un-
til the day the petition was filed. National Bank v.
Shackelford, 239 U. S. 81, 60 L. Ed. 158, 36 S. Ct. 17.
Mortgages withheld from record, by secret agreement
between bankrupt and a creditor, inducing other creditors
to sell the bankrupt goods, is a fraudulent conveyance
within the meaning of this provision. Clayton v. Exchange
Bank, 121 Fed. 630.
Purchase by Father in Trust for Daughter. — See post,
this note, par. 3, note to Cohen v. Parish, 105 Ga. 339, 31
S. E. 205.
Transactions Between Husband and Wife. — See 6 Cum.
Dig. 487, 6 Enc. Dig. 626.
In a transaction involving the transfer of property be-
tween husband and wife, the utmost good faith must be
made to appear. The wife must show with great clear-
ness that she was a bona fide purchaser, and that she
had no reason to believe that the transfer was made to
delay or defraud the creditors of her husband. Curtis v.
Wortsman, 25 Fed. 893.
Same — Conveyance to Creditor and Reconveyance to
Wife. — When a conveyance of an entire stock of goods by
a debtor to a favored creditor, in payment of a moiety of
the debt, and a reconveyance from the creditor to the
debtor's wife, she undertaking to become responsible for
such moiety, is had in one day, and the wife carries on
the business of the debtor in her name, employing her
husband as clerk, a strong presumption of fraud exists
as against a creditor whose claim for the purchase monej
of a large portion of the stock is thus defeated; especially
is this true where all the conveyances are embraced in
one document, paged 1, 2, and 3. Curtis v. Wortsman,
25 Fed. 893.
Same — Wife Insuring Property. — Under this section,
where a husband conveys property to his wife for the pur-
pose of defrauding his creditors, and she subsequently has
the same insured for her own benefit, and a loss covered
by the policy occurs, the insurance company, if in any
event liable to the husband for such loss, certainly is not
if it issued its policy in ignorance of the fraudulent trans-
action between him and his wife, and hence can not, in
such a case, be by garnishment made liable to his credi-
tors. Saint Paul Fire, etc., Ins. Co. v. Brunswick Grocery
Co., 113 Ga. 786, 39 S. E. 483.
Same — Alleging Conspiracy. — An equitable petition
brought by creditors of a husband against him and his
wife, alleging a conspiracy by them to defeat his creditors
by fraudulently placing in her the title to property be-
longing to him and justly subject to the payment of his
debts was not demurrable. In such a case the remedy at
law would not be adequate and complete. Earnest v. Mer-
ritt, 107 Ga. 61, 32 S. E- 898.
Debtor Incorporating Property and Transferring His
Shares to Wife. — Where a debtor in failing circumstances,
has all his visible property on which he obtained the credit,
incorporated under a manufacturing charter, and divided
into shares between his father and himself, and afterwards
makes over to his wife his shares so set apart to him, the
father having paid debts of the son to himself and other
creditors for his shares of the stock, the transaction may
be obnoxious to this section as made to delay or defraud
creditors; and whether made with such intent or not, and
whether such intent was known to the father, or he had
grounds for reasonable suspicion of such intent, or the
transaction was for a valuable consideration and bona fide,
and without such notice or grounds of suspicion, is a ques-
[851]
§ 3224
ACTS VOID AS AGAINST CREDITORS
§ 3224
tion for the jury. Planters', etc., Bank v. Willeo Cotton
Mills, 60 Ga. 168, 169.
Evidences of Fraud.— See 6 Cum. Dig. 486, 6 Enc. Dig.
620. The fact that suits were pending against the vendor
at the time of the sale is a circumstance which the jury
may have a right to consider on the trial of the. issue as
to whether the sale was fraudulent as against his credi-
tors (Barber v. Terrell, 54 Ga. 146), as is also the fact of
insolvency of the vendor at the time of the sale (Tillman
v. Fontaine, 98 Ga. 672, 677, 27 S. E. 149; Warren v. Citi-
zens Nat. Bank, 145 Ga. 505, 89 S. E. 520); and where a
question as to solvency or insolvency of a person is in-
volved, a fi. fa. against him, with an entry of nulla bona
thereon, is admissible in evidence. Lawson v. Wright, 21
Ga. 242; Buttram v. Jackson, 32 Ga. 409; Jennings v.
National Bank, 74 Ga. 782; Greene v. Matthews, 31 Ga.
App. 265, 120 S. E. 434; Virginia-Carolina Chemical Co. v.
Hollis, 23 Ga. App. 634, 99 S. E. 154.
Same— Disposing of Entire Property.— To sell or mort-
gage his entire property by an insolvent debtor pending
suit, is a badge of fraud, and to do so in an unusual mode
differing from the manner in which such business is gener-
ally transacted, to the extent that suspicion would be ex-
cited that the transaction was unfair, is also a badge of
fraud. Hoffer v. Gladden, 75 Ga. 532.
The rule, that the sale of the whole of an insolvent debt-
or's property is a badge of fraud, does not apply in a
contest between the creditors and one who has purchased
a very inconsiderable portion thereof; and especially when
enough was left, at the time, to pay the debts. Scott v.
Winship, 20 Ga. 429.
Same — Nature and Adequacy of Consideration. — Whether
the consideration for which a mortgage is alleged to have
been executed, is bona fide, or merely colorable to defraud
creditors or so inadequate as to constitute a badge of
fraud, is a question of fact for the jury. Williams v. Kel-
sey, 6 Ga. 365. See post, this note, par. 3, note to Almond
v. Gairdner, 76 Ga. 699.
Where the judge charged this provision of this section,
a new trial will not be granted because of his failure, with-
out a request, to charge as to the effect of inadequacy of
consideration, — the inadequacy, if any, not being sufficient
to manifest fraud as a matter of law, and the verdict show-
ing that the jury found as a fact that the purchase was
bona fide and without notice of an intent by the insolvent
grantor to delay or defraud creditors. Oglesby v. Walton
& Co., 118 Ga. 203, 44 S. E. 990.
Same — Proceeds of Sale Kept Inaccessible to Creditors. —
If on a trial involving the validity of a deed transfering
property in trust for debtor's daughter, it appeared that
the money received by the father was kept inaccessible to
his creditors, this would be a strong circumstance evidenc-
ing a fraudulent intention in procuring the deed to be exe-
cuted as stated. Cohen v. Parish, 100 Ga. 335, 28 S. E. 122.
Same — Possession After Conveyance. — See ante, this
note, paragraph 1, "Reservation of Trust or Benefit," II.
Same — Sale Pending Litigation — Retention of Possession.
— Fraud was inferred under this section from a sale pend-
ing litigation, and from vendor's retention of property.
Bozikis v. Anestos, 33 Ga. App. 422, 126 S. E. 555.
IV. BONA FIDE PURCHASERS.
See 6 Cum. Dig. 496, 6 Enc. Dig. 641. See also §§ 4531,
4535. See also, ante, this note, "Fraudulent Intent," II.
Protection Given Bona Fide Purchasers. — The law pro-
tects bona fide purchasers under this section even where
they hold under a fraudulent conveyance, when they have
purchased for a valuable consideration and without notice
or reasonable grounds for suspicion. Thornton v. Carver,
80 Ga. 397, 399, 6 S. E. 915.
An innocent purchaser at a sale intended to defraud
creditors does not become affected by the fraud of the
seller, though the property be attached in the purchaser's
hands before it is paid for, and before negotiable notes
given for the price have passed to innocent holders. Nicol
v. Crittenden, 55 Ga. 497. ,
Purchaser Without Knowledge of Fraudulent Intent. —
To be protected under this section, the purchaser must be
without notice or grounds for reasonable suspicion — not
simply without knowledge. Nicol v. Crittenden, 55 Ga.
497.
A bona fide purchaser, without notice of a promissory
note and mortgage to secure it, who buys before the debt
becomes due, is protected by this section against a de-
fense that the mortgage was made by the debtor, in an-
ticipation of bankruptcy and to defraud his creditors. Mur-
ray & Co. v. Jones, 50 Ga. 109, 110.
Purchaser of Bankrupt Goods Before Set Apart. — A
vendee who purchases from the bankrupt before the goods
are set apart under the state law by the ordinary gets a
good title thereto, unless the sale was made to delay or de-
fraud the creditors of the vendor under this section who had,
the right to subject the exemption, and this intention was
known to the purchasers. Pincus v. Meinhard & Bro., 139-
Ga. 365, 77 S. E. 82.
Purchaser with Knowledge of Fraudulent Intent. — There
is no exception in this section in favor of a party taking
a conveyance based upon a valuable consideration, who*
takes with knowledge of the fraudulent intent. But the
kind of a transaction, based upon a valuable consideration,,
which is declared to be valid is "a bona fide transaction on
a valuable consideration, and without notice or ground&
for reasonable suspicion." Conley v. Buck, 100 Ga. 187,
206, 28 S. E. 97.
This section and § 3225 were construed in Ilinkle v. Smith
& Son, 133 Ga. 255, 65 S. E- 427; and it was held, that, be-
ing in pari materia, they should be construed together;
and that if a conveyance from a debtor to the first grantee
was void because of fraud on the creditor, and the second
grantee took with notice of the fr,aud, the property could
be subjected in the latter's hands, although he may have
paid value therefor; but that reasonable grounds of sus-
picion alone would not suffice to render the second grantee's-
title void. Warren v. Citizens Nat. Bank, 145 Ga. 503, 504,
89 S. E. 520.
Volunteer Grantees. — If a tort feasor was not insolvent.,
and the conveyance was made with intent to delay or de-
fraud the party damaged — if it was not only voluntary, but
tainted with fraudulent intent — then the conveyance is void
as against the party damaged, whether the grantees, be-
ing volunteers, had notice of the fraudulent intent or not.
Westmoreland v. Powell, 59 Ga. 256.
Incorrect Instructions. — It was error to charge under this
section that a subsequent purchaser of the property from
the fraudulent grantee acquires no title as against such
creditors, if he has grounds to reasonably suspect the fraud
in the conveyance to his grantor. Hinkle v. Smith & Son,
133 Ga. 255, 65 S. E. 427.
In applying this provision it was not a correct instruc-
tion that if the defendants took the property "in good faith
with no suspicion even of the purpose * * * to defraud,
if there was no such purpose, then they would be pro-
tected." Norton v. Neely Co., 148 Ga. 652, 98 S. E. 76,
3. Every voluntary deed or conveyance, not
for a valuable consideration, made by a debtor
insolvent at the time of such conveyance. Act
1818, Cobb, 168; Acts 1865-6, p. 29.
For full treatment, see 6 Cum. Dig. 493, 6 Enc. Dig. 638.
Liberal Construction. — Though this provision is strict,
the courts will give a liberal construction to its provisions.
Duncan v. Freeman, 152 Ga. 332, 110 S. E. 5.
This section is mandatory and admits of no exception
King v. Poole, 61 Ga. 373, 374, yet it is well settled that
a person may, though in debt at the time, make a volun-
tary conveyance under such circumstances as that it will
be valid and binding even as against existing creditors.
Cohen v. Parish, 105 Ga. 339, 347', 31 S. E- 205.
Conveyance Must Be Fraudulent Under Statute of Eliza-
beth.— To make a voluntary conveyance void against credi-
tors and purchaser within the Statute of Elizabeth, it
must be covinous and fraudulent, and not voluntary only.
Clayton v. Brown, 17 Ga. 217.
Receiver in Bankruptcy as Creditor. — After a national
bank has become insolvent and has been by order of the
controller of the currency placed in the hands of a receiver,
a voluntary conveyance by an insolvent shareholder of
such bank, though made before the levying of an assess-
ment against the shareholder by the controller of the cur-
rency, may, at the suit of the receiver, be declared null
and void as to him and subject to the lien of a judgment
obtained by the receiver against the shareholder in a suit
previously brought by the' receiver against the shareholder
to recover the amount of the assessment. In such circum-
stances the liability (duty) of the share holder is a legal
obligation running to the receiver for the benefit of the
creditors of the bank, and the receiver occupies the status
of a "creditor" or "other person," within the meaning of
this section. Duncan v. Freeman, 152 Ga. 332, 110 S. E. 5.
An assignee in bankruptcy has no standing to impeach
a voluntary conveyance made by the bankrupt to his chil-
dren prior to the adjudication in bankruptcy, unless such
conveyance was void because of fraud; and under this
section it is not fraudulent and void when the property con-
veyed forms an inconsiderable part of the ' grantor's estate,
and there is no purpose to hinder and delay creditors. Only
existing creditors have a right to assail such a conveyance.
The assignee, there being no fraud, takes only such rights
[ 852 ]
; 3224
ACTS VOTD AS AGAINST CREDITORS
§ 3226
is the bankrupt had. Adams v. Collier, 122 U. S. 382, 30
Z Ed. 1207, 7 S. Ct. 1208.
Transaction Between Husband and Wife. — If a husband,
nsolvent at the time and having no property subject to
he demands of judgment creditors, makes a gift of prop-
:rty to his wife, such a gift would be void as against credi-
ors, under this section whether or not the wife had knowl-
dge or notice of the husband's fraudulent intent. Garner
'. State Bkg. Co., 150 Ga. 6, 102 S. E. 442.
A settlement in favor of wife and children, or either,
vill be supported, if made in good faith and with no in-
ent to defraud creditors; but one by debtor in greatly em-
iarrassed circumstances of the bulk of his estate, leaving
jut a pittance, and insufficient for the debts, can not be
upported. Clayton v. Brown, 30 Ga. 490. See also, Reese
J Shell, 95 Ga. 749, 22 S. E. 580.
Same — Charge as to Consideration. — The court charged
hat gross inadequacy of consideration, if it existed, was a
>adge of fraud and a circumstance that the jury might
onsider in determining whether the conveyance to the
laimant was fair and honest or was fraudulent, and also
harged that if the husband bona fide and for a valuable
onsideration, conveyed the land in dispute to his wife in
>ayment, or part payment, of an indebtedness to her, and
5 the consideration was fair and just, they would find for
he claimant, this furnishes no ground for a reversal. Al •
apnd v. Gairdner, 76 Ga. 699.
Same — Marriage as Consideration. — Marriage is a valuable
onsideration, and sufficient to support a deed; and if the
/oman is guilty of no fraud, and enters into the settle-
lent without notice of a debt, due from the man to a
hird person, she will be protected in the property conveyed
y the settlement, against that debt. Marshall v. Morris,
6 Ga. 368.
Purchase by Father in Trust for Daughter. — When a
ather purchases land with his own funds, and causes the
itle to be made by the vendor to himself as trustee for a
linor daughter, this, in the absence of any valuable con-
ideration as between these two, is equivalent to a gift of
he land by the father to the daughter. Its validity when
ttacked by his creditors depends upon his solvency at the
ime of the conveyance, and the absence of any intention
n his part to hinder, delay, or defraud his creditors. Cohen
-. Parish, 105 Ga. 339, 31 S. E. 205.
The plaintiff suing for land on equitable title, and con-
ending that defendant's conveyance was fraudulent and
•oluntary, held not to be within this section. Wommack
■. Wommack, 150 Ga, 401, 104 S. E. 421.
Conveyance Valid Where Debtor Solvent. — See 6 Cum.
)ig. 495, 6 Enc. Dig. 639.
There being evidence tending to show that the convey-
nce in question was voluntary, and not for a valuable
onsideration, the judge should have instructed the jury un-
ier this section in compliance with a proper and timely
written request, that if the conveyance was voluntary it
iras not void unless the husband was insolvent at the time
t was executed. Jones v. Foster, 150 Ga. 277, 103 S. E.
91.
A person though in debt, may in good faith make a
■oluntary conveyance of a part of his property, if the part
vhich he retains, is amply sufficient to pay his debts.
/Veed v. Davis, 25 Ga. 684.
When Debtor Insolvent Within Meaning of this Pro-
dsion. — A debtor whose entire property consisted of a
ingle parcel of realty and cash in hand was not, within
he meaning of this section, par. 3, insolvent, if the market
•alue of the land added to the amount of his cash made,
n the aggregate, a sum sufficient to pay in full all his
lebts. Cohen v. Parish, 100 Ga. 335, 28 S. E. 122.
Solvency Question for Jury. — If a tort feasor was insol-
vent, or was left insolvent, when he made the voluntary
'.onveyance, it was " void as against the party damaged;
md whether insolvent or not, was a question for the jury.
Westmoreland v. Powell, 59 Ga. 256. See also, Primrose v.
Browning, 59 Ga. 69.
Charge Where There Is No Evidence of Insolvency. —
fhere being no evidence touching the solvency or insolvency
>f the defendant in fi. fa. at the time he made the volun-
:ary conveyance to his wife, or that the plaintiffs' debt
vas then in existence, the court erred in charging the
ury that, if he was insolvent, the deed was void as against
:reditors whose debts were in existence at the time. Hen in
t Kiser & Co., 88 Ga. 306, 14 S. E. 585.
When This Provision is Proper Charge. — Where the
:reditor of a husband was seeking to subject property
.vhich was claimed by the debtor's wife, on the ground
:hat the conveyance by the husband to the wife was made
:o hinder, delay and defraud creditors, and where there
was evidence to show, or from which the jury might in-
:er, that the conveyance from the husband to his wife was
[8i
without consideration, it was proper for the court to give
in charge this section in reference to voluntary conveyances
and their effect upon the rights of creditors. Almond v.
Gairdner, 76 Ga. 699.
Stated in Burnside v. Terry, 51 Ga. 191. Adams v. First
Nat. Bank, 147 Ga. 470, 94 S. E. 568.
§ 3225. (§ 2696.) Innocent subsequent vendee.
— Where a sale void as against creditors is made,
and the property has not been seized, and no
step taken to set the sale aside, the fraudulent
vendee can convey to an innocent purchaser
from him, for value and without notice of the
fraud, a title good as against the claims or judg-
ments of the defrauded creditors.
Cross References. — For full treatment, see 6 Cum. Dig.
496, 6 Enc. Dig. 641. As to protection afforded purchaser
without notice of fraud, see § 4120. As to protection af-
forded innocent purchaser for value, of fraudulent transfers
by bank, see § 2360.
Source of Section. — This section is based on the decision
in Sawyer v. Almond, 89 Ga. 314, 15 S. E. 315, in which
case the debtor made a fraudulent sale of a mule, and the
court, in holding the title of a bona fide purchases good,
enunciated the rule of this section. This case cited
Colquitt v. Thomas, 8 Ga. 258.
Ownership in Vendee Until Rescission. — Under this sec-
tion a vendee who has obtained title to property under a
sale induced by fraud is the owner of the property until
the seller elects to rescind the sale. Mashburn & Co. v.
Dannenberg Co., 117 Ga. 567, 44 S. E. 97.
What Constitutes Notice. — The title of a purchaser from
a fraudulent grantee is not invalidated by ground for rea-
sonable suspicion, short of notice to him. Hinkle v. Smith
& Son, 133 Ga. 255, 65 S. E. 427. See also Warren v.
Citizens Nat Bank, 145 Ga. 503, 89 S. E- 520. And it would
seem that a transaction between a relative of the debtor
was not in itself sufficient to constitute notice. See Beas-
ley v. Smith, 144 Ga. 377, 380, 87 S. E- 293.
The sale of a stock of goods in bulk, without compliance
with the following sections is good as to a bona fide pur-
chaser from one who was not a "merchant, trader or
dealer" in such articles. See §§ 3226-9. Grove Mfg. Co.
v. Salter, 26 Ga. App. 369, 106 S. E. 208.
Impounding Unpaid Purchase Money. — If the fraudulent
grantee sells the property to an innocent purchaser, any
unpaid purchase-money due on such sale will be im-
pounded as an equitable asset of the debtor for distribution
to his creditors. Beasley v. Smith, 144 Ga. 377, 87 S. E-
293. In this case the facts showed that the plaintiff was
not in laches in prosecuting this remedy.
Reclaiming Goods from Bankrupt's Trustee. —Under this
section, § 4120 and Bankr. Act, one induced to sell goods
to a bankrupt by fraud can not reclaim them from the
bankrupts' trustee. In re Whatley Bros., 199 Fed. 326.
§ 3226, Merchandise, how sold in bulk. — It
shall be the duty of every person who shall bar-
gain for or purchase any stock of goods, wares,
or merchandise in bulk, for cash or credit, before
paying or delivering to the vendor any part of
the purchase-price therefor, to demand and re-
ceive from the vendor thereof, and if the vendor
be a corporation, then from the managing offi-
cer or agent thereof, a written statement under
oath of the names and addresses of all the cred-
itors of said vendor, together with the amount of
indebtedness clue or owing by said vendor to each
of such creditors; and it shall be the duty of such
vendor to furnish such statement. It shall fur-
ther be the duty of said vendor to give to the
vendee a statement of his assets and liabilities
and the cost price of the merchandise to be sold,
said cost price to be arrived at by an inventory
taken at the time by the seller and purchaser.
Acts 1905, p. 92.
I. General Consideration.
II. Application of Section.
III. Sworn I,ist.
IV. Pleading and Practice.
Cross References.
For full treatment, see 6 Cum. Dig. 527. As to sales to
defraud creditors and purchasers, see § 4109.
§ 3226
ACTS VOID AS AGAINST CREDITORS
§ 3226
I. GENERAL CONSIDERATION.
See 6 Cum. Dig. 527.
Editor's Note — Prior to 1903 sales of stocks of merchan-
dise in bulk could only be attacked for fraud under the
same rules as were applicable to sales generally, (§§ 3224,
4109). See International Silver Co. v. Hull & Co., 140 Ga.
10, 78 S. E. 609. In order to protect creditors more com-
pletely against fraudulent sales by debtors, a "Bulk Sales
Act" was passed by acts 1903, p. 98. This act was codified
in the code of 1910 as this section, §§ 3227, 3228, and 3229.
In some jurisdictions, by the terms of the bulk sales
statutes, a sale of "any portion" of a stock of merchan-
dise otherwise than in the ordinary course of trade is
covered by the provisions of the act; in other jurisdictions
the statutes deal with such a sale of a "material portion;"
in others a "major part;" "but 'bulk sales acts' is a generic
term descriptive of a class of statutes designed to prevent
the defrauding of creditors by the secret sale in bulk of
substantially all of a merchant's stock of goods. The
general scheme of these statutes is to declare such bulk
sales fraudulent and void as to creditors of the vendor, or
presumptively so, unless specified formalities are observed."
(See 27 C. J. 873-890; Long Cigar Co. v. Harvey, 33 Ga.
App. 236, 125 S. E. 870).
Constitutionality of Sections. — This section et seq. are
not in violation of either the state constitution (§ 6359)
or United States Constitution (§ 6700); Jaques, etc., Co. v.
Carstarphen Warehouse Co., 131 Ga. 1, 62 S. E. 82. The
constitutionality of these sections were raised again in
Stovall Co. v. Shepherd Co., 10 Ga. App. 498, 73 S. E. 761,
but not decided in view of the former case.
Purpose of Sections.— "The object of the legislature in
passing this section was the protection of persons who had
extended credit to merchants on the faith of apparent
prosperity indicated by a stock of goods, wares, and mer-
chandise, which would not be sold in bulk to one person,
but which would be sold out gradually, and replenished
from time to time. When merchants sell their entire stock
of goods to one person without notice of any kind to their
creditors, a fraud is frequently perpetrated upon the cred-
itors; and it was the intention of the legislature to afford a
remedy to the victims of these fraudulent sales." Cooney,
etc., Co. v. Sweat, 135 Ga. 511, 512, 66 S. E. 257. See also
Stovall Co. v. Shepherd Co., 10 Ga. App. 498, 73 S. E. 761.
Section Not a Rule of Evidence.— See 6 Cum. Dig. 529.
Strictly Construed — "This section et seq. is in derogation
of the common law, and of a person's right to alienate his
property without restriction and is therefore to be strictly
construed. Jaques, etc., Co. v. Carstarphen Warehouse
Co., 131 Ga. 1, 62 S. E. 82; Sampson v. Brandon Grocery
Co., 127 Ga. 454, 56 S. E- 488; Carstarphen Warehouse Co.
v. Fried, 124 Ga. 544, 52 S. E. 598." Cooney, etc., Co. v.
Sweat, 133 Ga. 511, 512, 66 S. E. 257; Yancey v. Lamar-Ran-
kin Drug Co., 140 Ga. 359, 78 S. E. 1078; Martin v. Taylor
24 Ga. App. 598, 101 S. E. 690; Bank v. Rutland, 27 Ga.
App. 442, 108 S. E. 821, and is applicable only to cases
which fall clearly within its purview. Taylor v. Folds, 2
Ga. App. 453, 58 S. E. 683; Cooney, etc., Co. v. Sweat, 133
Ga. 511, 66 S. E. 257; Stovall Co. v. Shepherd Co., 10 Ga.
App. 498, 501, 73 S. E. 761; Long Cigar Co. v. Harvey, 33
Ga. App. 236, 125 S. E. 870.
Criminal Liability Under Section.— See § 718, P. C.
Contemplation of Inventory.— This section contemplates
that the contract of sale shall be followed by an inventory.
South Ga. Grocery Co. v. Wade-Chamers Grocery Co., 12
Ga. App. 213, 77 S. E. 6.
II. APPLICATION OF SECTION.
See 6 Cum. Dig. 530,
Applies to Secured Creditors.— This section et seq. ap-
plies to secured as well as to unsecured creditors. National
Cash Register Co. v. Stubbs, 29 Ga. App. 543, 116 S. E. 44.
Transactions Under Section.— Under this section the fol-
lowing transactions are declared to be fraudulent and void
as against creditors of the vendor, when the provisions of
the act are not complied with: (1) Every sale or transfer
of a stock of goods, wares, or merchandise in bulk, (2)
or of substantially the entire business theretofore con-
ducted by the vendor as such a stock, (3) or every sale or
transfer of such a stock out of the usual or ordinary
course of business or trade of the vendor. Yancey v.
Lamar -Rankin Drug Co., 140 Ga. 359, 78 S. E. 1078. See
Long Cigar Co. v. Harvey, 33 Ga. App. 236, 125 S. E. 870.
Bona Fide Purchaser. — See notes to § 3225.
Deed to Secure Debt. — A deed to secure the payment of
a debt, although purporting to pass the title to the pur-
chaser, is not covered by the provisions of this section et
seq. Avery & Sons v. Carter, 18 Ga. App. 527, 89 S. E. 1051;
Bank v. Rutland, 27 Ga. App. 442, 108 S. E. 821; Wright v.
Cline, 27 Ga. App. 129, 107 S. E. 593.
Sale in Extinguishment of Debt. — A sale by a debtor to
creditor, in extinguishment of a debt, in whole or in part is
within the provisions of this section. Sampson v. Brandon
Grocery Co., 127 Ga. 454, 56 S. E. 488.
Same — Secured by Bill of Sale. — The provisions of this
section apply to a sale of a stock of goods in bulk by a
debtor to a creditor, in total or partial exinguishment of
his debt secured by a bill of sale, and such a sale made
in disregard of this act is fraudulent and void as against
other creditors of the common debtor. Sampson v. Brandon
Grocery Co., 127 Ga. 454, 56 S. E- 488; Bank v. Rutland,
27 Ga. App. 442, 108 S. E. 821.
Where the owner of a stock of goods, without comply-
ing with the provisions of this section et seq, has sought
to make an absolute transfer of the goods to the holder of
a security bill of sale and for a consideration consisting in
part of the extinguishment of the security bill of sale, but
where the security bill of sale remains uncanceled of record,
another creditor of the seller is not permitted to levy upon
the goods in the hands of the transferee, without first dis-
charging the amount due on the valid security bill of sale.
Whatever might be the rights of the parties to the at-
tempted transfer in treating it as binding between them-
selves (see McDowell v. McMurria, 107 Ga. 812, 816, 33 S-
E- 709) an attachment creditor, as the moving party, hav-
ing treated the sale as void as to himself, can not at the
same time be heard to insist upon its validity as between
the parties thereto. Under the statute, the rights of such
a creditor are to be taken precisely as if the attempted
transfer had not been made. By virtue of the act he is
simply restored to what rights he would otherwise have
lost. It is not intended to improve his condition by giving
him superior rights. Such an attempted sale is merely a
legal fraud (Jaques, etc., Co. v. Carstarphen Warehouse
Co., 131 Ga. 1, 16, 62 S. E. 82), and it is not the purpose
of the statute to impose punitive forfeitures of pre-exist-
ing valid liens in favor of other creditors. Bank v. Rut-
land, 27 Ga. App. 442, 103 S. E. 821.
Retention of Title to Property to Secure Debt. — A cred-
itor is not barred from the protection of this section et seq.
merely because, as security for his debt, he has retained
title to property sold by him to the person by whom the
sale of the stock of merchandise in bulk is made, nor even
by the additional fact that the property to which he has
so retained title is excluded by the parties thereto from
the operation of the sale in bulk. National Cash Register
Co. v. Stubbs, 29 Ga. App. 543, 116 S. E- 44.
An assignment of bankrupt's exemption to existing
creditor, in proceeds of sale of goods, is not within this
section. Strickland Hdw. Co. v. Fletcher, 152 Ga. 445
446, 110 S. E. 229.
Not Applicable to Sale of Partnership Interest. — Thf
provisions of the "sale in bulk" law do not apply to
sale by a partner of his interest in a stock of merchandist
to his copartner. Stovall Co. v. Shepherd Co., 10 Ga. App
498, 73 S. E- 761. Cited and approved in Yancey v. Lamar
Rankin Drug Co., 140 Ga. 359; 78 S. E. 1078.
Two Transfers at Different Times. — Where the owner o
a stock of goods sells a half interest therein to another
and a short time thereafter sells to his partner the othej
half interest in the business, the sale is void as to the cred
itors of the vendor, unless the provisions of this section e
seq. have been complied with. Virginia-Carolina Chemi
cal Co. v. Bouchelle, 12 Ga. App. 661, 78 S. E. 51.
General Settlement by Debtor with Creditors. — This sec
tion has no application to a general settlement made by j
debtor with creditors, where, by the terms of the settle
ment, all the creditors agree that the debtor's stock o
goods, wares, and merchandise shall be turned over to
third person, who shall sell the same solely for the benefi
of the creditors, and where the third person, in pursuanc
of a common agreement, does sell the stock in bulk an
pays over to the creditors, according to the agreed pr
rata, all the proceeds of the sale. Stovall Co. v. Shepher|
Co., 10 Ga. App. 498, 73 S. E. 761.
Transfer from Corporation to its President and Stock
holder, Who Sells Bulk. — Where a mercantile corporatio
turns over its stock of merchandise to its president an
principal stockholder, who undertakes to buy up at a dis
count the claims against the corporation, and who, afte
purchasing a majority of such claims, sells the stock (
merchandise in bulk to a third person who knows at tin
corporation's president is buying up the claims against tb
corporation, and that some of the claims had not bee
purchased at the time of the sale, such a transaction fal
within the operation of this section and the sale by tV
president of the corporation to such third person withoi
complying with the terms of the statute is void as again;
[854]
} 3226
ACTS VOID AS AGAINST CREDITORS
§ 3228
:reditors of the corporation. Knight v. Stephen Putney
shoe Co., 137 Ga. 493, 73 S. E. 740.
Fixtures and Accessories. — While the words "goods, wares,
>r merchandise" as used in this section are not to be taken
n such a restricted sense as to exclude the usual and
:ustomary accessories used in connection with a business
0 which they are appropriate, whenever their transfer is
ncluded in the sale of any stock of "goods, wares, oi
nerchandise" in bulk out of the usual or ordinary course
if the business or trade of the vendor, so as to include
ubstantially the entire business (Parham & Co. v. Potts-
fhompson Liquor Co., 127 Ga. 303, 5'6 S. E. 460; Cooney,
tc., Co. v. Sweat, 133 Ga. 511, 66 S. E. 257; Virginia-Caro-
ina Chemical Co. v. Bouchelle, 12 Ga. App. 661, 78 S. E- 51),
till, in order for the provisions of the bulk-sale law to
tave application, there must be an intent between the par-
ies to substantially effect a sale of a stock of "goods,
vares, or merchandise," and where such is not the case,
he mere sale of fixtures and accessories alone would not
•ring the transaction within the scope and purview of
his section et seq. Martin v. Taylor, 24 Ga. App. 598, 101
>. E. 690.
Same — Particular Fixtures. — Bar -fixtures, safes, desks,
•ash-registers, cigar-cases, pool-tables, refrigerators, and
he like, used in connection with a business to which they
re appropriate, in facilitating the operation of such busi-
tess and the sale of the goods connected therewith, have
ieen held to be included in the sale of the business, within
he meaning of this section. Parham & Co. v. Potts-
^hompson Liquor Co., 127 Ga. 303, 56 S. E. 460; Cooney,
tc, Co. v. Sweat, 133 Ga; 511, 513, 66 S. E. 257.
Sale of Lumber. — This section has no application to a
ale of substantially all the lumber manufactured by one
/ho operates a sawmill at which trees are manufactured
nto lumber. Cooney, etc., Co. v. Sweat, 133 Ga. 511, 66
>. E. 257.
Same — Small Quantity of Wood. — The mere fact that
lending the negotiations a small remnant of wood amount -
ng to six and one quarter cords unexpectedly came into
he hands of the vendor, and that one of the defendants,
s an individual, bought and paid for the same with his
lersonal check, would not bring the case within the pro-
visions of this section. Martin v. Taylor, 24 Ga. App. 598,
01 S. E. 690.
Stock of Meat and Market Goods. — This section et seq.
s applicable to a stock of meat and other merchandise
uch as is usually sold in a market. Virginia -Carolina
:hemical Co. v. Bouchelle, 12 Ga. App. 661, 78 S. E- 51.
III. SWORN LIST.
See 6 Cum. Dig. 532.
Omission of Creditor's Name. — The fact that a cred-
tor's name was omitted from the sworn list, whereby no-
ice was not given him, does not render the sale void, the
turchaser having paid the agreed price without reason to
uspect that such name was omitted, and the vendor be-
ng insolvent. International Silver Co. v. Hull & Co., 12
}a. App. 812, 78 S. E. 610; S. C, 140 Ga. 10, 78 S. E. 609.
Cited in Phillips & Crew Co. v. Jones & Hancock, 139
}a. 160, 76 S. E. 1019.
IV. PLEADING AND PRACTISE.
See 6 Cum. Dig. 534.
Attachment. — A sale of a stock of merchandise in bulk,
lot in compliance with the provisions of this section et
ieq., is void as to creditors, on the ground of fraud; and
i creditor may proceed by attachment against his fraudu-
ent debtor. Carstarphen Warehouse Co. v. Fried, 124 Ga.
144, 52 S. E. 598; Right v. Stephen Putney Shoe Co., 137
5a. 493, 73 S. E. 740.
The pendency of a common-law action does not preclude
:he suing out of an attachment under this section. John-
ion & Son v. Friedman- Shelby Shoe Co., 15 Ga. App. 561,
13 S. E. 969.
Levy.— See 6 Cum. Dig. 535.
Garnishment. — -Where a sale of merchandise in bulk is
nade without compliance with the provisions of this sec-
tion et seq. the purchaser is liable in garnishment to a
:reditor of the vendor, although the purchaser may have
disposed of the goods prior to the service on him of the
process of garnishment. Jaques, etc., Co. v. Carstarphen
Warehouse Co., 131 Ga. 1, 62 S. E- 82. The fact that the
debtor was a partnership, and that prior to the illegal sale
to the garnishee one of the partners has sold out his in-
terest to the other, would not defeat the rights of the
:reditor. Moultrie Grocery Co. v. Holmes-Hartsfield Co.,
22 Ga. App. 512, 96 S. E. 346. See also, Morgan v. Weil
Co., 31 Ga. App. 611, 121 S. E. 703.
Instructions.— The instruction to the jury that if the hus
band made a sale of a stock of merchandise in bulk to
his wife, the sale would be void unless the piovisions oi
this section et seq. had been complied with, even if the
instruction was not applicable to any issue raised by the
evidence, was, nevertheless, harmless to the claimant.
Smith v. Rothschild & Co., 13 Ga. App. 293, 79 S. E- 88.
Sufficiency of Evidence. — The evidence in this case was
sufficient to show that a scheme was entered into between
the vendor and purchaser to evade the provisions of this
section. Hagan Supply Co. v. Morris & Co., 11 Ga. App.
456, 75 S. E. 672.
§ 3227. Duty of purchaser. — Thereupon it shall
be the duty of the purchaser, at least live days
before the completion of the purchase or the
payment therefor, to notify, personally or by
registered mail, each of said creditors, of the
said proposed sale, the price to be paid therefor,
and the terms and conditions thereof, together
with a copy of the statement of the assets and
liabilities as furnished him by the vendor.
See cross references and notes to section preceding.
Purpose of Section. — The purpose of the statute codified
in this section was to give to creditors of the seller an op-
portunity to garnish the buyer before payment of the pur-
chase-price or the delivery of any negotiable promissory
note or other evidence of indebtedness by him, and thus
protect them against being defrauded in the collection of
their debts. The act contemplates that the contract of
sale shall be followed by an inventory, and a demand by
the buyer from the seller of a statement on oath of his
creditors and the amount due to each of them, and five
days notice to the creditors. South Ga. Grocery Co. v.
Wade-Chambers Grocery Co., 12 Ga. App. 213, 77 S. E. 6.
Strict Construction of Section. — See note, "General Con-
sideration," I, under § 3226.
Omission of Creditor's Name from List. — See note "Sworn
List," III, under § 3226.
Notices Must Be Sent — Not Received in Time. — Under
this section the requirement that the purchaser shall,
"notify, personally or by registered mail," is met by send-
ing the proper notice by registered mail at least five days
before the completion of the purchase of the payment there-
for. It is not necessary that the notice so mailed shall be
received by the creditor five days before such completion.
Wyone Shoe Co. v. Daniels & Co., 136 Ga. 192, 71 S. E. 1.
Verbal Notice by Vendor. — The purchaser of merchandise
in bulk is not relieved from the duty of notifying the cred-
itors of the vendor of such proposed sale, as prescribed by
this Sjection, by reason of a verbal notice given to them
by the vendor himself. Moultrie Grocery Co. v. Holmes-
Hartsfield Co., 22 Ga. App. 512, 96 S. E. 346.
Terms and Conditions. — It was not a sufficient com-
pliance with the requirement of this section to send a no-
tice which contained only the following statement of the
terms and conditions of the sale: "The terms and condi-
tions of said purchase being as follows: Cash payment $3,-
000, $6,000 in stock in the Wyone Shoe Company, balance
in deferred payments." Wyone Shoe Co. v. Daniels & Co.,
136 Ga. 192, 71 S. E. 1.
Knowledge by Attorney Does Not Relieve Purchaser
from Giving Notice. — Mere knowledge by the attorney who
holds for collection the claim of such a creditor, of those
matters in reference to the sale in bulk of which notice to
creditors is required by this section will not relieve the
purchaser of the duty of giving such notice. National Cash
Register Co. v. Stubbs, 29 Ga. App. 543, 116 S. E- 44.
Garnishment. — See note, "Pleading and Practice," IV,
under § 3226.
§ 3228. When fraud is presumed. — Whenever
any person shall purchase any stock of goods,
wares, or merchandise in bulk, and shall pay the
price or any part thereof, or execute or deliver
to the vendor thereof, or to his order, or to any
person for his use, any promissory note or other
evidence of indebtedness for said purchase-price,
or any part thereof, without having first de-
manded and received from said vendor the state-
ment under oath, mentioned in section 3226, and
without first giving to each of said creditors the
notice provided for in the preceding section, such
sale or transfer shall, as to any and all creditors
[ 855 ]
§ 3229
ASSIGNMENTS FOR BENEFIT OF CREDITORS
§ 3230
of the vendor, be conclusively presumed to be
fraudulent.
See cross references under § 3226. See also § 3224, par. 2.
Strict Construction of Section.— See note, "General Con-
sideration," I, under § 3226.
Security Deed Not Within This Section. — The petition
for certiorari disclosed the fact that the defendant in fi. fa.
had conveyed her stock of merchandise in bulk to her
father, the claimant, and that, to secure the payment of a
certain sum that he loaned to her, she executed a security
deed purporting to pass title to him. This transaction did
not come within the purview of this section and § 3229 and
therefore no presumption that it was fraudulent arose by
reason of the fact that the mortgagor made no attempt to
comply with the provisions of this section as to furnishing
a vendee with the statement under oath required by § 3226,
and without first giving to each creditor of the mortgagor
a notice of the transaction as required by the last-men-
tioned section. Avery & Sons v. Carter, 18 Ga. App. 527,
39 S. E. 1051.
Attachment Proceedings Against Debtor. — See note,
"Pleading and Practise," IV, under § 3226.
Garnishment. — See note, "Pleading and Practise," TV,
under § 3226.
§ 3229. What sales shall be deemed fraudulent.
—Any sale or transfer of a stock of goods, wares,
or merchandise out of the usual or ordinary
course of the business or trade of the vendor, or
whenever thereby substantially the entire busi-
ness or trade theretofore conducted by the ven-
dor shall be sold or conveyed, or attempted to
be sold or conveyed, to one or more persons, shall
be deemed a fraudulent transaction or transfer
in bulk in contemplation of this and the three
preceding sections: Provided, that nothing con-
tained in this and the three preceding sections
shall apply to sales by executors, administrators,
receivers, or any public officer under judicial
process.
See cross references under § 3226. See also § 3224,
par. 2.
Strict Construction. — See "General Consideration," I, un-
der § 3226.
Security Deed Not Within This Provision. — See notes to
I 3228.
CHAPTER 3.
Preferences and Assignments for Benefit of
Creditors.
§ 3230. (§ 2697.) Legal preference. — A debtor
may prefer one creditor to another, and to that
end he may bona tide give a lien by mortgage or
other legal means, or he may sell in payment of
the debt, or he may transfer choses in action as
collateral security, the surplus in such cases not
being reserved for his own benefit.
Cross References. — For full treatment, see 2 Cum. Dig.
183, 1 Enc. Dig. 613; 6 Cum. Dig. 492, 6 Enc. Dig. 638. As
to no preferences upon appointment of receiver for insolvent
trader, see § 3252. See also § 3231 and notes thereto.
Editor's Note.— Prior to Acts 1866, p. 27 (see "Editor's
Note" under § 3224 par. 1), the policy of this state, as
shown by the Acts 1818 (Cobb 168) was that a debtor should
not prefer one creditor to another, but there was a proviso
to that act that a debtor might extinguish his debt to a
.creditor by a bona fide sale of property for that purpose,
not reserving any part thereof in trust for himself or any
one else. Under this proviso, the court decided the case
of Eastman v. McAlpin, 1 Kelley 157, and others on the
same line, where a debtor was allowed to sell his property
to a creditor and prefer other creditors as to the surplus.
Other decisions were made somewhat in conflict with these.
In order to harmonize these decisions and make the policy
of the law consistent with the plain provisions of the Act
■of 1818, the codifiers probably added the words "or that of
any other favored creditor, to the exclusion of other credi-
tors," so that while a debtor could still make a bona fide
sale of his property to pay a debt, he could not, under
fihese words, prefer one creditor to another by directing
[8
a surplus to be paid to the preferred creditor. The law
thus stood from the time of the adoption of the code un-
til 1866, when the legislature thought proper to change the
law, .so they passed an act (Acts 1865-6, p. 29) in which
they allowed a debtor to prefer one creditor to another.
That act in the opinion of the court in Powell, Bro. & Co.
v. Kelly Bros., 82 Ga. 1, 12, 9 S. E- 278, repealed by impli-
cation the latter part of this section, i. e. the words quoted
above, the words being in direct conflict with the act. The
act (now codified in § 3224, par. 1) allows a debtor to pre-
fer one creditor to another, and as it prescribes no manner
or form, there can be no reason why a debtor may not sell
his property bona fide to pay a debt, and devote the sur-
plus, to a particular creditor or creditors, in preference to
others. Accordingly, the codifiers of the code of 1895 drop-
ped these words. The words "choses in action," were sub-
stituted in that code for "negotiable papers." See post,
unis note, Boykin v. Epstein, 94 Ga. 750, 751, 22 S. E. 218.
Preferences Void under Act 1818. — See notes to § 3224,
par. 1. See also, 1 Enc. Dig. 613.
Section Not Repealed by Bulk Sales Act. — This section is
not repealed by §§ 3226-9, but a sale of a stock of goods in
extinguishment of a debt, in whole or in part, is permis-
sible, where § 3226 is complied with. Sampson v. Brandon
Grocery Co., 127 Ga. 454, 455, 56 S. E- 488.
Kind of Creditors and Property. — Under this section, no
distinction is made as to the kind of creditors who may be
preferred or as to the kind of property which may be used
for this purpose. Ellison & Son v. Lucas, 87 Ga. 223, 226,
13 S. E. 445.
Methods of Preferring Creditors — Good Fiaith. — An in-
solvent debtor may, by the laws of Georgia, give a prefer-
ence in a great variety of ways to one creditor, to the ex-
clusion of others, provided it be done with good faith.
McWhorter v. Wright, etc., Co., 5 Ga. 555.
A debtor may prefer creditors by a direct sale to them,
in extinguishment of their claims, or he may bona fide
sell his property to a stranger, and apply the proceeds to
the debts of favored creditors ; but he can not discrimi-
nate, in a trust deed, between creditors. Brown v. Lee, 7
Ga. 267, 268. See also Hobbs v. Davis, 50 Ga. 213, and
McLendon v. Reynolds, 160 Ga. 763, 7685> 129 S. E. 65.
Construing this section and § 3224, together, as being,
in pari materia, the intention of the legislature, is . quite
plain, that an insolvent debtor may make an assignment
of his property in trust, for the benefit of one or more
of his creditors, to the exclusion of others, so that it is
done bona fide, and no trust or benefit be reserved to
Ihe assignor, or any person for him. Embry v. Clapp,
38 Ga. 245, 250.
"An assignment made by an insolvent debtor of all his
property for the benefit of part of his creditors is not al-
lowed by the laws of this state;" "but a party in debt may
sell a part of his property to pay one of his creditors."
He can make a sale of his property to a creditor; he can
divest himself of every article he owns, and no other cred-
itor has a cause of complaint if it was for a valuable con-
sideration and in good faith. Bones v. Printup Bros. &
Co., 64 Ga. 753, 757.
Dividing Debt into Smaller Debts. — If an insolvent debtor,
preferring one creditor to the others, divides the debt which
he owes to that creditor, into smaller debts, so that they
shall be within the jurisdiction of a court in which a judg-
ment may be obtained on them that shall be such as toj
give that creditor an advantage over the others, the debtor;
does what is not unlawful. Bank v. Planters Bank, 22 Ga.j
466; Andrews & Co. v. Kaufmans, 60 Ga. 669, 672.
No Necessity for Recording Agreement. — The fact that
an agreement by a debtor to prefer a certain creditor in
case of insolvency is not recorded does not render it
fraudulent, since such an agreement is not required by lawj
to be recorded, and its record would therefore not constitute!
notice. Fechheimer v. Baum, 43 Fed. 719.
Corporations. — See § 3231 and notes thereto.
Partnerships — Individual Indebtedness. — Under this section,
and under the law generally, each of partnership mem-
bers has the right, with the consent of his partner, to sel!>
his share in the firm assets in payment of his individual
indebtedness. Ellison & Son v. Lucas, 87 Ga. 223, 226, lc\
S. E- 445.
It was held in the case of Veal v. Keely Co., 8<!
Ga. 130, 12 S. E- 297, that a mortgage given by 1
partnership on partnership property to secure a debt due
by one of the partners was valid against creditors of the I,
firm, and that this was especially true when the debt duet
by the individual member had, by consent of the partners j
been made a debt of the firm. Ellison & Son v. Lucas |
87 Ga. 223, 225, 13 S. E. 445.
Bankrupt Debtor. — A voluntary bankrupt has an assign-
able interest in the property claimed by him in his peti-
56 ]
§. 3231
ASSIGNMENTS FOR BENEFIT OF CREDITORS
§ 3234
tion as exempt under the constitution and homestead laws
of this state; and he may assign the property in good faith
to an existing creditor before the property is set apart by
the trustee in bankruptcy, and therefore before the exemp-
tion is confirmed by the referee in bankruptcy. Strickland
Hdw. Co. v. Fletcher, 152 Ga. 445, 110 S. E. 229.
Preferring Creditors by Mortgage. — A mortgage, exe-
cuted by a debtor, in insolvent circumstances, to a creditor,
to secure the payment of a bona fide pre-existing debt, is
not per se fraudulent, as against creditors. Davis v.
Anderson & Bro., 1 Ga. 176. See also I,ee v. Brown, 7 Ga.
275.
That an insolvent firm is seeking to prefer certain
creditors by mortgage, under this section, constitutes no
ground for equitable relief. Heidingsfelder v. Slade, 60
Ga. 396, 397.
Under this section, where a mortgage is given by an in-
solvent debtor to one of his creditors on all his property,
and is followed immediately by other mortgages which in
effect constitute a general assignment for creditors, the
first mortgage does not constitute part of the assignment.
Fechheimer v. Baum, 43 Fed. 719.
Accounts and Books of Account as Collateral Security.
— The case of Hale-Berry Co. v. Diamond State Iron Co.,
94 Ga. 61, 22 S. E. 217, was correctly decided with reference
to this section as it appeared in the code of 1863, but it is
not a correct exposition of the law of the code as modified
by the act of 1866, p. 29, and is therefore overruled in so
far as it holds accounts, or books of account, not assign-
able as collateral security for a debt owing by an insolvent
assignor to the assignee without complying with the statu-
tory requirements as to sworn inventory and schedule.
Baer v. English & Co., 84 Ga. 408, 11 S. E- 453, explained.
Boykin v. Epstein, 94 Ga. 750, 22 S. F. 218. [The holding in
the Hale-Berry case was based on this section of the code
as it read and not as it actually stood as modified by Acts
1866, p. 29. This act inserted the words "or choses in ac-
tion" in § 3224, par. 1 and accordingly "choses in action"
was the proper phrase in this section in place of "negotiable
papers." The codifiers of the code of 1895 changed these
words to meet the decision of the Boykin case. (See ante,
"Editor's Note" to this section). The rule now can be
safely stated that, accounts may be transferred as collateral
security. Ed. Note.]
Charges — Evidence to Support. — There was evidence in
this case tending to show that the security deed to the
claimant was a bona fide preference by the debtor. The
evidence was sufficient to show an issue on the point; and
it was error requiring the grant of a new trial to omit to
give this section in charge, though no request for such a
charge was made. Mobley v. Merchants, etc., Bank, 157
Ga. 658, 122 S. E. 233.
Same — Request. — The court having given a full charge
upon the precise issue involved in the attack upon the deed
from the husband to the wife (which charge is not ex-
cepted to as inaccurate, incomplete, or incorrect in the
statement of the law), a failure to give in charge this sec-
tion relating to preference of a creditor by a debtor, was
not erroneous in the absence of a written request, al-
though it would have been pertinent and appropriate un-
der the facts. Durden v. Royster Guano Co., 158 Ga. 234,
123 S. E. 603.
Same — Adding Portion of Section 3224 to this Section.—
The court gave this section in charge on an issue as to
whether a deed from husband to wife was fraudulent, but
added thereto a portion of the second paragraph of § 3224,
as a qualification or explanation of this section by saying:
"provided it is done in good faith, and not for the purpose
of hindering or defrauding creditors." The court held that
having attempted an explanation of the section he was re-
quested to charge, he should have further stated that in
order to render the conveyance void, where it was made in
payment of a valid debt, the wife must have known of
such purpose or have had reasonable grounds to suspect
the existence of the same. Lamkin v. Clary, 103 Ga. 63:,
637, 30 S. E. 596.
Cited in Cowan v. Bank, 159 Ga. 123, 125 S. E. 194.
Stated in Fechheimer v. Baum, 37 Ga. 167.
§ 3231. (§ 2698.) Corporation, not municipal,
may assign. — Any corporation, not municipal,
may make an assignment for the benefit of cred-
itors, but no such corporation shall be allowed
therein to prefer any creditor or class of cred-
itors, except such as have debts entitled to pri-
ority by the laws of this State. Acts 1894, p. 90;
Acts 1884-5, pp. 53, 100; 1889, p. 108; 1878-9,
p. 148.
See 1 Enc. Dig. 608.
Editor's Note. — There was, prior to the passing of this
section, some conflict in opinion as to whether or not a
corporation could prefer creditors. In Milledgeville Bank-
ing Co. v. Mclntyre Alliance Store, 98 Ga. 503, 507, 25 S. R}.
567, it was held that a corporation had an equal right wi'.h
an individual under § 3230, allowing preference, but clearly
under this section, a corporation "shall not be allowed t'>
prefer any creditor or class of creditors, except such as
have debts entitled to priority by the laws of this State."
Sections 3243, 3244, as to Attacking Assignments Refer
to this Section et seq. — See notes to § 3243.
Existing Corporation. — In Georgia no statute prevents-
an assignment by an existing corporation. McCallie v.
Walton, 37 Ga. 611, 613; Albany, etc., Steel Co. v. Southern
Agri. Works, 76 Ga. 135, 169.
Insolvent Corporations. — Whether or not, under the gen-
eral mercantile and commercial law, an insolvent corpora-
tion is capable of making a general assignment for the
benefit of creditors, either with or without giving prefercici
and priority of payment to certain of them, yet under the
provisions of the act of 1880-81 p. 124, it may do so. Albany-,
etc., Steel Co. v. Southern Agri. Works, 76 Ga. 135.
Assignments by Banks — See §§ 2358-2363 and notes
thereto.
Indirect Benefit to Directors. — As ruled in the case
of Weihl, etc., Co. v. Atlanta Furniture Mfg. Co., 89 Ga.
297, 15 S. E- 282, the right of the debtor corporation \o
prefer a creditor, and the right of the creditor to be pre-
ferred, can not be lost simply because, as a mere incident
to the transaction by which the preference is effected, the
directors may themselves gain some benefit. Milledgeville
Banking Co. v. Mclntyre Alliance Store, 98 Ga. 503, 507,
25 S. E. 567. See also, Atlas Tack Co. v. Macon Hdw.
Co., 101 Ga. 391, 29 S. E. 27.
§ 3232. (§ 2699.) Persons may assign and pre-
fer.— Persons and firms may make assignments
and prefer creditors. Acts 1894, p. 90.
See notes to § 3230.
§ 3233. (§ 2700.) Execution, filing and record-
ing.— In all cases the deed of assignment shall
be executed, filed, and recorded as provided in
case of deeds. Acts 1894, p. 90.
As to when instruments requiring record take effect, see
§ 3320. As to when and where deeds are recorded, see ?
4198. As to notice of filing assignment, see § 3247.
§ 3234. (§ 2701.) Assignment to convey all
property of assignor. — All such assignments
shall convey all of the property of every sort,
claimed or owned by the assignor at the time of
the execution thereof; shall identify any lands
owned or any interest in lands; shall identify
goods, wares, and merchandise by general words
of description, indicating the location, kind, and
quality thereof, with a statement as near as may
be of the purchase-price and selling-price of the
lot as a whole, and shall also describe in general
terms any shares of capital stock, live stock, per-
sonal property, not connected with any mercan-
tile or manufacturing business. Said assignor
shall attach a list of all creditors, with their post-
office addresses and amounts due to each. Acts
1894, p. 90.
Description of Property. — A deed of assignment is not
invalidated because authority is given the assignee to dis-
pose of property in a storehouse "where the same is now-
situated or elsewhere." Anthony v. Price, 92 Ga. 170, 17
S. E. 1024.
Describing Nature and Character of Debts. — It is not
necessary for assignors in their schedule of creditors to-
describe the nature and character of the debts, and to
state therein whether they consist of "notes or accounts,
whether barred or not, whether secured or unsecured." If
the schedule set forth in detail the name of, the amount
due to, and the residence of each of the creditors of the
assignors, no further description of the debts is required.
Stultz v. Fleming, 83 Ga. 14, 9 S. E- 1067.
Schedule and Inventory.— See § 3237 and notes thereto.
See also 1 Enc. Dig. 620.
Assignments by Banks— See §§ 2358-2363.
[857]
§ 3235
ASSIGNMENTS FOR BENEFIT OF CREDITORS
§ 3239
§ 3235. (§ 2702.) Assignment conveys all
books, liens, etc. — Such assignment shall convey
all books, books of account, choses in action,
notes, drafts, bills, judgments, liens, and mort-
gages, held or owned, indicating, as near as may
be, the aggregate amount thereof, with a state-
ment as to the total amounts which are con-
sidered good, doubtful, or bad. Acts 1894, p. 90.
See 2 Cum. Dig. 182, 1 Enc. Dig. 610. See also notes to §
3230.
§ 3236. (§ 2703.) Affidavit to be annexed to
assignment. — At the time of signing said deed of
assignment, the person or firm making an assign-
ment, or the officer acting for the corporation
making an assignment, shall make an affidavit an-
nexed to such assignment, that "the said assign-
ment conveys all property held, claimed, or
owned by the assignor at the time of making the
assignment; that all recitals and all estimates of
totals and values therein and all list creditors are
true to the best of his knowledge and belief; and
that the debts set out as due to the preferred
creditors are bona fide just, due, and unpaid; and
that said assignment is not made for the purpose
of hindering, delaying, or defrauding creditors."
See notes to § 3237.
§ 3237. (§ 2704.) List to be prepared and at-
tached.— Within fifteen days after the recording
of such assignment, said assignor shall, in con-
nection with the assignee, prepare a full and
complete list of all property of every kind, char-
acter, and description held, claimed, owned, or
possessed by said assignor at the date of making
such assignment, to which shall be attached the
affidavit of the assignor that said list is true. The
assignee shall also attach an affidavit that he has
examined the books and other papers of the as-
signor, that he assisted in the preparation of the
list as far as possible, and that to the best of his
knowledge, information, and belief the list is cor-
rect. Or if he can not make such affidavit, he
shall state the reason therefor. Acts 1894, p. 91.
For full treatment, see 1 Enc. Dig. 620.
Editor's Note. — The following cases were decided under
the Acts 1880-1, p. 174 and Acts 1884-5, p. 100, although the
section is codified verbatim from the Acts 1894, p. 91. It
was thought that it would be of help to the searcher to in-
clude these cases under this section, in ' view of the fact
that the ramifications and qualifications of the two earlier
acts are somewhat similar in nature to those of the act
from which this section is codified.
The act of 1880-81, p. 174 is a remedial statute and should
be strictly construed as against the assignor and his as-
signee, and liberally in favor of creditors. Turnipseed v.
Schaefer, 76 Ga. 109.
Act 1880-81, p. 174 is mandatory and an assignment by
an insolvent debtor for the benefit of creditors was void
under this act, and conveyed no title, where no schedule or
inventory was attached to the deed of assignment. Crit-
tenden Bros. v. Coleman & Co., 70 Ga. 293; S. C, 74 Ga.
331.
Schedule No Part of Contract.— Acts of the legislature
requiring schedules to be annexed to deeds of assignment,
do not make those schedules a part of the contract.
Birdseye v. Underhill, 82 Ga. 142, 7 S. E. 863.
Completeness of Inventory and Schedule. — The inventory
and schedule of property attached to the assignment,
covering in terms all the property owned by the assignors,
containing a specification of all classes of the goods as-
signed, and designating the locality at which they were
to be found, was, in legal contemplation, sufficiently full
and complete. Claflin & Co. v. Vonderau & Co., 97 Ga.
224, 22 S. E. 405.
Same — Values of Items. — It is not essential to the validity
of a deed of assignment that values should be affixed to
the various items of property included in the inventory and
schedule thereto attached. Anthony v. Price, 92 Ga. 170,
17 S. E. 1024.
Same — Must Be Specific. — It is essential to the rights
of creditors that the schedule of property assigned be made
out specifically, so that it may be seen if the assignment
covers property sold by them, and whether, by reason of
fraud in the debtor, they can claim title thereto. Critten-
den Bros. v. Coleman & Co., 70 Ga. 293.
Attaching Schedule to Deed — Time of. — The schedule
must be made out and attached to the deed of assignment
at the time of execution. It will not be sufficient to pre-
pare a schedule afterwards and fold it within the deed.
Crittendon Bros. v. Coleman & Co., 70 Ga. 293.
Same — Failure of Writings to Declare that They are At-
tached.— Where the schedules are in fact attached to the
deed of assignment and there is no reason to conclude or
even suspect that they were not attached at the time the
assignment was executed, failure of the writings to de-
clare expressly on their face that they were then attached,
is of no consequence. Drucker & Bro. v. Wellhouse &
Sons, 82 Ga. 129, 8 S. E. 40.
Omissions from Schedule. — See § 3248.
While the omission from the schedule of assets of some
slight or unimportant article, of little or no value, or some
one or more creditors whose claims amounted to a trifle,
and which would probably be overlooked or forgotten by the
most careful, deliberate and painstaking person in prepar-
ing his schedule, might not have the effect of invalidating
the assignment, yet in a case where assets amounting to
nearly $1200 were omitted the rule is different. Turnip-
seed v. Schaefer, 76 Ga. 109.
Same — Right of Redemption. — Where one who made a
voluntary assignment for the benefit of creditors omitted
from the schedule attached thereto the right of redemption
which he had in certain premises which he had conveyed
for the security of a debt, the omission was fatal to the
assignment. McMillan v. Knapp, 76 Ga. 171.
Same — Intention to Defraud. — Intention to defraud by
material omissions from schedule will always vitiate the as-
signment. Wood v. Haynes, etc., Co., 92 Ga. 180, 18 S.
E. 47.
Same — General Clause in Assignment Conveying Omitted
Property. — A general clause in an assignment conveying to
the assignee such property of the assignor as was left" out
of the schedule of assets does not render the assignment
valid. Turnipseed v. Schaefer, 76 Ga. 109.
Affidavit. — An affidavit covering only the property ac-
tually in the assignor's possession and under his control at
the time the assignment was made is not sufficient. Mc-
Millan v. Knapp, 76 Ga. 171.
Where an assignment for the benefit of creditors was
made, and the schedule or list of creditors thereto attached
did not show that it was full and complete, and the affi-
davit thereto did not so state, but stated that it was just
and true, the assignment was void. Being void, the as-
signment could not be perfected after the filing of a bill
by creditors to set it aside. Fort v. Martin Tobacco Co.,
77 Ga. Ill, 1 S. E. 223.
Same — Separate Verification. — The schedules of assets of
the assignor and of his creditors' should be sworn to sepa-
rately. Fort v. Martin Tobacco Co., 77 Ga. Ill, 1 S. E-
223.
§ 3238., (§ 2705.) List to remain on file ten
days. — Said list shall remain on file in the clerk's
office for ten days, subject to examination of any
person interested. Acts 1894, p. 91.
§ 3239. (§ 2706.) Foreign assignments must
conform to law of this State. — No property in
this State shall pass under any assignment made
by corporations, persons, or firms out of this
State, unless such foreign assignment shall com-
ply with the law of assignments in this State.
Acts 1894, p. 91.
Cross References. — See 1 Enc. Dig. 610. As to lex loci
governing validity, form and effect of written instruments,
see § 8. As to comity of states, see § 9.
Effect on Assets. — A foreign assignment, at variance with
the domestic law, will not be suffered to take effect on
domestic assets to the prejudice of domestic creditors, but
an assignment, whether foreign or domestic, that presents
no conflict with any law, is to have full effect on all assets
to which its terms apply. Miller v. Kernaghan, 56 Ga. 155,
158; Princeton Mfg. Co. v. White, 68 Ga. 96. See also
Herschfeld v. Dexel & Co., 12 Ga. 582; Strieker & Co. v.
Tinkham, 35 Ga. 176, 89 Am. Dec. 280; Mason v. Strieker
[ 858 ]
\ 3240
ASSIGNMENTS FOR BENEFIT OF CREDITORS
§ 3247
& Co., 37 Ga. 262; Princeton Mfg. Co. v. White, 68 Ga.
)6, 98.
The situs of a debt follows the creditor, and the law of
lis domicile prevails where he and the debtor are residents
| different states. Birdseye v. Underhill, 82 Ga. 142, 7 S.
i 863.
Change of Law After Assignment. — An assignment which
vas contrary to the law of this state at the time it was
nade, is void, although the law was afterwards altered.
Mason v. Strieker & Co., 37 Ga. 262.
§ 3240. (§ 2707.) Bond of assignee. — Upon the
equest of any three of the creditors of the as-
:ignor, the assignee shall make and file a
>ond with surety, in a sum to be fixed by
he judge of the superior court, conditioned
or the faithful performance of his trust, which
>ond shall be made payable to the ordinary
>f the county and his successors in office,
or the benefit of all creditors of the said
.ssignor. In no case shall the bond be less than
he estimated value of the property assigned.
Vets 1894, p. 91.
Mandatory. — The giving of a bond is required by the act
if 1889, p. 108, and this requirement must be obeyed be-
ore the assignee can legally begin the discharge of his
luties, whether the deed of assignment provides for the
fiving of a bond or not. The act distinctly provides for
arrying assignments into effect in case the assignee named
ails to give bond. Anthony v. Price, 92 Ga. 170, 17 S.
E 1024.
§ 3241. (§ 2708.) Duties of assignee. — Said as-
ignee shall proceed to carry out the duties im-
>osed upon him by said assignment, but he shall
lot pay any preferred debt until after sixty days
rom the filing of said assignment in the clerk's
>fnce. Acts 1894, p. 91.
§ 3242. (§ 2709.) Powers and rights of as-
signee.— The assignee shall succeed to all rights
>f the assignor, but may attack and set aside any
raudulent conveyances, or recover property
onveyed by the assignor for the purpose of hin-
lering, delaying, or defrauding creditors. Acts
.894, p. 91.
' See 2 Cum. Dig. 184, 1 Enc. Dig. 624.
Suits by Assignee. — An assignee in an assignment for the
)enefit of creditors stands in no better situation than the
issignor as to suits or prior equitable liens. He takes only
such title as the assignor had, encumbered with all the
tquities existing between the assignor and a third party,
bobbins v. Walton, 37 Ga. 614, 619; Seay v. Bank, 66 Ga.
>09; Carter v. Lipsey, 70 Ga. 417; Fouche v. Brower, 74
ia. 251, 269.
A voluntary assignee can not maintain suits for the bene-
it of creditors, for whom he holds in trust the effects as-
signed, which the assignor could not have maintained.
Fouche v. Brower, 74 Ga. 251.
A trustee or assignee who holds the legal title of choses
n action, under a valid deed of assignment for the benefit
>f creditors, can sue for the amount of an account included
n the deed of assignment, for the use of one who pur-
:hased the account at a public sale held by him as such
:rustee or assignee. May v. McCarty, 11 Ga. App. 454,
'5 S. E. 672.
§ 3243. (§ 2710.) Direct attack on assignment.
— <No assignment shall be set aside except in a
iirect proceeding filed for that purpose, and no
creditor shall obtain any priority or preference
}f payment out of the assets assigned, on any
ludgment rendered after the filing of a petition
:o set aside assignment, in case the same is set
iside and decreed to be void. Acts 1894, p. 91.
See 2 Cum. Dig. 185, 1 Enc. Dig. 627. As to appointment
}f new assignees and trustees, see § 3746.
This Section Refers to Sections 3231 et seq. — This sec-
tion and § 3244, refer to such assignments as are made under
the act of 1894, the law relating to which is codified in §§
Rice,
See
3231 et seq. of the Civil Code. Coleman, etc., Co.
115 Ga. 510, 42 S. E. 5.
Rights of Creditors Favored. — See 1 Enc. Dig. 626.
also § 3216.
Reducing Claims to Judgment. — See § 3246.
In Burns v. Beck, etc., Hdw. Co., 83 Ga. 471, 493, 10 S.
E. 121, it was held that the bill having for one of its objects
the attack of an assignment as fraudulent, the complain-
ants could proceed without first reducing their claims to
judgment.
What Creditors May Attack Assignment. —See 1 Enc.
Dig. 627.
Sufficiency of Bill Attacking Assignment. — A bill filed by
creditors, attacking a voluntary assignment of their debt-
ors and seeking to set aside certain claims preferred
thereby, alleged that such preferences were not bona fide;
that the debts preferred were not real; that the goods
assigned were procured by fraudulent representations; that
the preferred creditors furnished none of these goods; that
the principal one of them is nearly related to the assignors;
and that mortgages were executed to them on the eve of
the assignment, and with a view to give color to the pref-
erence made, was enough to justify the chancellor in secur-
ing the fund in the hands of the assignee by the grant of
an injunction and appointment of a receiver, until the mat-
ter can be fully investigated on the final hearing of the
case. Oliver & Co. v. Victor & Co., 74 Ga. 543.
Question for Jury. — At the final hearing, the jury, un-
der proper instructions, and in view of the sur/ounding
facts and circumstances, should decide whether or not the
assignment should be set aside. Wood v. Haynes, etc., Co.,
92 Ga. 180, 18 S. E. 47.
§ 3244. (§ 2711.) Parties to proceedings to set
aside. — In all proceedings to set aside assign-
ments, the assignee and assignor shall be nec-
essary parties, and any preferred or unpreferred
creditor may be made party plaintiff or defendant
at any time in term or vacation.
Cross References.— See 2 Cum. Dig. 185, 1 Enc. Dig. 627.
As to parties to creditors' bills, see § 5418. As to cred-
itors' petitions in administration of assets, see § 4600. As
to who may set aside assignment by bank, see § 2359.
This Section Refers to Sections 3231 et seq. — See notes to
§ 3243.
An alleged mortgage creditor could be made a party to
a suit to set aside an assignment and sale thereunder,
where a decree required the purchasers from the assignee
to pay the purchase money into court. Crittendon Bros,
v. Coleman & Co., 74 Ga. 803.
Preferred Creditors. — It would have been proper, if not
necessary, to make the creditors preferred by the assign-
ment parties to a bill to set aside an assignment where the
preference given to them was alleged to have been fraudu-
lent. Old Hickory Distilling Co. v. Bleyer, 74 Ga. 201.
§ 3245. (§ 2712.) Not necessary to show fraud
or notice in assignee. — When the assignment is
attacked as fraudulent or void for any reason, it
shall not be necessary to show fraud or collusion
or notice thereof in the assignee, in order to ren-
der the same void.
Cross References. — As to necessity of showing notice of
insolvency in assignee, see 2 Cum. Dig. 185.
Federal Courts. — The equity courts of the United States
having jurisdiction can enforce rights under this section.
Bernheim v. Birnbaum, 30 Fed. 885.
§ 3246. (§ 2713.) Creditor not having judgment
may ask relief. — No creditor shall be required to
reduce his debt to judgment before asking equit-
able relief in any proceedings against the as-
signor or assignee, or both. Acts 1894, p. 92.
As to rights of creditors without liens, see § 5495.
Applied in Burns v. Beck, etc., Hdw. Co., 83 Ga. 471,
493, 10 S. E. 121; Cohen & Co. v. Morris & Co., 70 Ga.
313.
§ 3247. (§ 2714.) Notice of filing assignment. —
Within thirty days after filing the assignment,
the assignee shall notify each creditor that the
same has been filed; and where proceedings are
instituted attacking the same within thirty days
thereafter, the assignee shall also give notice
[859]
§ 3248
INSOLVENT TRADERS
3254
thereof to each creditor named. Depositing a
letter in the post-office, stamped and properly
addressed, shall be sufficient notice under this
section. Acts 1894, p. 92.
§ 3248. (§ 2715.) Innocent mistake in lists, etc.
— If it shall be made to appear that an innocent
or unintentional mistake or omission has been
made in the description of the propert)r, or in the
list of assets, or in the method of preparing the
list of assets, or in the list of creditors, the same
may be amended upon proof thereof to the court.
Acts 1894, p. 92.
Under the Acts 1880-1 and 1884-5, no provision was made
for perfecting a schedule which was hot full and complete
and by that means upholding the assignment; nor were
the courts authorized to amend such schedules. See Turnip-
seed v. Schaefer, 76 Ga. 109, 132. See also notes to §
3237.
CHAPTER 4.
Insolvent Traders.
§ 3249. (§ 2716.) Receiver for insolvent trader.
— In case any corporation not municipal, or any
trader, or firm of traders shall fail to pay, at ma-
turity, any one or more matured debts, payment
of which has been properly demanded of such
debtor, and by him refused, and shall be insol-
vent, it shall be in the power of a court of equity,
under a creditor's petition, to which one or more
creditors, representing one third in amount of
the unsecured debts of such insolvent corpora-
tion, trader, or firm of traders, whose debts are
matured and unpaid, shall be necessary parties,
to proceed to collect the assets, real and personal,
including choses in action and money, and ap-
propriate the same to the creditors of such
trader, firm of traders, or corporation. Acts
1880-1, p. 125; 1889, p. 74; 1894, p. 89.
Cross References. — For full treatment, see 2 Cum. Dig.
586, 2 Fnc. Dig. 245. As to when receiver is officer of
court, see § 5475. As to creditors' petitions in administra-
tion of assets, see § 4600. As to equity assisting in reach-
ing equitable assets, see § 3217. As to disposition of assets
upon dissolution of a corporation, see § 2245.
Editor's Note. — There is a conflict as to whether or not
the Bankruptcy Act of 1898 suspended the operation of the
chapter on insolvent traders (§§ 3249-3255.) The federal
court in the cases of In re Macon Co., 112 Fed. 323, and
Carling v. Seymour Lumber Co., 113 Fed. 483, held that the
federal bankruptcy Act did suspend the operation of this
chapter saying, in effect, that in the case of Comer & Co.
v. Coates & Co., 69 Ga. 491, 495, it was held that this
chapter in many respects resembles the bankruptcy acts
of Congress (See also Ryan v. Kingsbery, 88 Ga. 361, 389,
14 S. F. 596), and that said chapter is clearly a state in-
solvency law, within the power of a state to enact when
the congress has not exercised its powers to pass a uni-
form bankrupt law. The congress having exercised their
power by passing the Bankruptcy Act of 1898, the effect
was to render this sta'ce insolvency law a nullity. These
federal decisions were decided in 1901 and 1902.
In 1905, the state supreme court in the case of Boston
Mercantile Co. v. Ould-Carter Co., 123 Ga. 458, 461, 51 S.
E. 466, had for determination the same question. They
decided, in effect, that when proceedings have been begun
under the federal bankruptcy act, the operation of this
chapter, is, as to the subject of the suit, suspended; but
in the absence of any proceeding in the United States
Courts, the state courts have jurisdiction to try all cases
coming within the purview of the state insolvency law (§§
3249-3255). This court criticised the federal decisions and
the obiter of the case of Comer v. Coates, upon which it
was based, saying that they proceeded on the idea that the
insolvent traders act (this chapter) contains the essentials
to a valid bankrupt law. The state court grants that this
chapter is an insolvency law; but holds that it lacks one
essential element of a bankruptcy law, viz., a provision
that after discharge the debtor shall be released from further
liability on his debts. Section 3255 was interpreted by
them not as a provision for discharge of the debts of the
debtor, but as meaning nothing more than that the judge
shall have power to express his opinion in open court as
to the good faith which the defendant has shown in sur-
rendering his assets to the receiver, and to give some benev-
olent but useless advice to the creditors. As a conclusion,
they held that the judge in the case of Carling v. Seymour
was misled by the dictum of the case of Comer v. Coates,
and that the rule should now be stated, in effect, that
where there is no bankruptcy proceeding, this chapter of
the code is still in force. (For further discussion of the
Boston Co. case, see 2 Cum. Dig. 589).
The federal court, in 1908, again rendered in Re Pickens
Mfg. Co., 158 Fed. 894, substantially the same opinion as
in the two prior federal cases above cited, making no men-
tion of the decision of the. state court case of Boston Mer-
cantile Co. v. Ould-Carter Co., 123 Ga. 458, 51 S. F. 466.
The state court, however, continued to decide cases under
this chapter until 1913, when the last case that the editor
has been able to find, appeared in Vol. 139 of the Ga. re-
ports. For a comprehensive treatment of the cases under
this, chapter, see 2 Cum. Dig. 586, 2 Fnc. Dig. 245.
§ 3250. (§ 2717.) Chancellor's power in such
cases. — The chancellor, under such proceedings
as are usual in equity, may grant injunctions, and
appoint receivers for the collection and preserva-
tion of the assets in the cases provided by this
Chapter, and may at any time appoint an auditor
and take all proper steps to bring the matter to a
final hearing.
See editor's note under § 3249.
§ 3251. (§ 2718.) Who may be parties.— Any
creditor may become a party to said petition, un-
der an order of the court, at any time before the
final distribution of the assets, he becoming
chargeable with his proportion of the expenses
of the previous proceedings. Acts 1880-1, p_ 125.
See editor's note under § 3249. See also, 2 Cum. Dig.
588, 589; 2 Fnc Dig. 248. As to parties to creditors bills,
see § 5418. As to regulation of counsel fees, where a re-
ceiver is appointed, see § 5488. As to receiver's fees, see
§ 5489.
§ 3252. (§ 2719.) No preferences; assets, how-
distributed. — Upon the appointment of a re-
ceiver, no creditor shall acquire any preference,
by any judgment or lien, on any suit or attach-
ment, under proceedings commenced after the
filing of the petition, and all assignments and
mortgages to pay or secure existing debts, made
after the filing of said petition, shall be vacated,
and the assets be divided pro rata among the
creditors, preserving all existing liens. Acts
1880-1, p. 125.
See editor's note under § 3249. See also, 2 Cum. Dig.
587; 2 Fnc. Dig. 249. As to legal preferences generally, see
§ 3230. As to assignments by corporations, see § 3231. As
to legal and equitable assets, see § 4594.
§ 3253. (§ 2720.) Allowance for defendant's
support. — It shall be in the power of the judge
to make a suitable allowance for the defendant
for a support during the pendency of the pro-
ceedings, having in so doing respect to the con-
dition of the defendant and the circumstances of
the failure. Acts 1880-1, p. 125.
See editor's note under § 3249.
§ 3254. (§ 2721.) Who is a trader. — Any person
or firm shall be considered a trader who is en-
gaged, as a business, in buying and selling real
or personal estate of any kind, or who is a banker
or broker or commission merchant, or manufac-
turer manufacturing articles to the extent of five
thousand dollars per annum. Acts 1880-1, p. 125.
See editor's note under § 3249. See also, 2 Cum. Dig.
587; 2 Fnc. Dig. 246.
[ 860
3255
MORTGAGES
§ 3256
§ 3255. (§ 2722.) Chancellor may recommend
lebtor's release. — It shall be in the power of the
hancellor, in his final judgment in the cases pro-
ided for, to express his opinion, if the facts au-
horize it, that, from the facts as they have trans-
lired during the progress of the cause, the de-
endant has honestly and fairly delivered up his
ssets for distribution under the law, and to rec-
mimend to the creditors of the defendant that
hey release him from further liability. Acts
880-1, p. 125.
See editor's note under § 3255, discussing this section.
See also, 2 Cum. Dig. 589.
CHAPTER 5.
Mortgages.
ARTICLE l.
General Principles.
§ 3256. (§2723.) What is a mortgage, and what
t may embrace. — A mortgage in this State is
»nly security for a debt, and passes no title. It
nay embrace all property in possession, or to
vhich the mortgagor has the right of possession
gj the time, or may cover a stock of goods, or
>ther things in bulk, but changing in specifics, in
vhich case the lien is lost on all articles disposed
I by the mortgagor up to the time of foreclos-
ire, and attaches to the purchases made to sup-
)ly their places. A mortgage given by a person
§ a corporation to a trustee or trustees, to se-
:ure an issue of bonds, shall, when it is expressly
,o stipulated therein, embrace and cover after-
icquired property of such person or corporation.
jets 1899, p. 32.
I. General Consideration.
II. Title.
II. After Acquired Interest and Increase.
V. Stock cf Goods.
Cross References.
For full treatment, see 8 Cum. Dig. 657; 9 Enc. Dig. 413 ;
! Cum. Dig. 591; 3 Enc. Dig. 96. As to insurance on ch'ang-
hg property, see § 2474. As to effect of alienation of in-
jured property, see § 2484. As to liens in favor of mort-
gages, see § 3329, p. 5.
I. GENERAL CONSIDERATION.
See 8 Cum. Dig. 657; 9 Enc. Dig. 413.
Use of Word "Mortgage." — Under Georgia law, the word
'mortgage" is used in a double sense. Sometimes it re-
:ers to a conveyance which creates a lien, and at others to
me which passes title as security for a debt. Denton Bros.
| Shields, 120 Ga. 1076, 48 S. E. 423.
What May Be Mortgaged. — This section in declaring what
things may be mortgaged does not declare that other things
nay not be. Peyton v. Lamar, 42 Ga. 132, 133.
Same — Growing Crop. — A mortgage may be of part of a
growing crop, if the part mortgaged be so described as to
be identified by parol evidence. Stephens v. Tucker, 55
Ga. 543.
Distinction between Mortgage and Conditional Sale. — "If
the relation of debtor and creditor remains, and a debt still
subsists, it is a mortgage; but if the debt be extinguished
by the agreement of the parties, or the money advanced
was not by way of loan, and the grantor has the privilege
of refunding, if he pleases, by a given time, and thereby
entitled himself to a reconveyance, it is a conditional sale."
Gait v. Jackson, 9 Ga. 151, 156. For full treatment of
conditional sales, see § 3318, and the notes thereto.
Instruments Containing Defeasance Clauses. — An instru-
ment containing a defeasance clause, describing the debt, and
showing on its face that it is intended as security, is a
mortgage, and passes no title under this section. Lane
v. Smart, 21 Ga. App. 292, 293, 94 S. E- 325. citing Denton
v. Shields, 120 Ga. 1078, 48 S. E. 423.
Trust Deeds in Form. — In equity, however it might be at
law, it makes no substantial difference that mortgages are
trust deeds in form and convey absolutely; they ought, in
this forum and on a question of priority to be considered
as mortgages pure and simple. So considered, they pass
no title but are only securities for debts, under this sec-
tion. Green v. R. Co., 97 Ga. 15, 23, 24 S. E. 814. See §
3258.
A title reservation note for the price of property sold can
not by agreement be treated as a mortgage under this sec-
tion. Wynn v. Tyner, 139 Ga. 767. See also, Bacon v.
Hanesley, 19 Ga. App. 69, 90 S. E. 1023, where cases hold-
ing to the contrary are cited and overruled.
The deposit of deeds as collateral security for a debt, does
not create such a lien on the land as can be foreclosed at
law. English v. McElroy, 62 Ga. 414.
Power of Sale — Revocation. — A power of sale given by
mortgage, under this section, was held to be revoked by
the mortgagors' death before the note fell due. See § 3574.
Wilkins v. McGehee, 86 Ga. 764, 13 S. E- 84.
The power of sale in a security deed being coupled with
an interest, was noj revoked by the death of the grantor.
This case differs from those of Lathrop & Co. v. Brown,
65 Ga. 312; Miller, Trustee v. McDonald, 72 Ga. 20, and
Wofford v. Wyly, Ibid., 863. Roland v. Coleman, 76 Ga.
652.
Same — Exchange. — A contract by a mortgagee, made on
receiving the mortgage, that he will hold the securities,
and that the mortgagor may "sell the property named in
said deeds and make titles thereto, the proceeds of the sale
to go to the credit of" the mortgagee, gives to the mort-
gagor power to sell for cash, free from the mortgage, but
not to exchange for other lands; and does not cast upon
the purchaser for cash the duty of seeing that the mort-
gagor appropriates the proceeds according to the agreement.
Woodward v. Jewell, 140 U. S. 274, 35 L. Ed. 478.
Exemption in Bankruptcy. — Under this section, where an
exemption has been granted by a judge or register in bank-
ruptcy out of lands subject to a mortgage lien, such ex-
emption is no more subject to levy and sale than if it had
been set apart by the ordinary having jurisdiction thereof.
Brady v. Brady, 71 Ga. 71.
Effect of Bankruptcy Discharge on Lien. — A discharge in
bankruptcy under the Act of 1898, as amended, does not af-
fect the lien of a mortgage created by this section ob-
tained more than four months prior to the filing of the pe-
tition in bankruptcy, relatively to property set apart as
exempt under the bankrupt's claim of homestead exemp-
tion, although holders of such liens may have proved their
claims in bankruptcy. McBride v. Gibbs, 148 Ga. 380, 96
S. E. 1004.
Effect of Statute of Usury on Security. — A security by
mortgage, as it passes no title under this section, is not
rendered void by the statute of usury, § 3442. Hodge v.
Brown, 81 Ga. 277, 278, 7 S. E- 282.
Judgment for damages precedes mortgage on railroad un-
der this section, as to income in hands of receiver. Green
v. R. Co., 97 Ga. 15, 24 S. E. 814.
II. TITLE.
Rule at Common Law — Title Passed. — At common law the
legal estate vested in the mortgagee and was forfeited by
default. The title passed to the mortgagee by the deed.
Ward v. Lord, 100 Ga. 407, 409, 28 S. E. 446. See also, Pus-
ser v. Thompson, 132 Ga. 282, 64 S. E. 75.
Present Rule — No Title Passes. — A mortgage in Georgia
is only a security for a debt, the title to the property re-
mains in the mortgagor. See, on this question, Jackson
v. Carswell, 34 Ga. 279; Solomon v. Sparks, 27 Ga. 385;
Butt v. Maddox, 7 Ga. 495; Ragland v. Justices, 10 Ga.
65; Morgan v. Morgan, 10 Ga. 297; Davis v. Anderson, 1
Ga. 176; Winter v. Garrard, 7 Ga. 183; Frost v. Allen, 57
Ga. 326; Murphy v. Vaughan, 55 Ga. 361; Thomas v. Mor-
risett, 76 Ga. 384; Mixon v. Stanley, 100 Ga. 372, 28 S. E-
440; Cully v. Bloomingdale, 67 Ga. 756; Hudson v. Gunn,
20 Ga. App. 95. 92 S. E- 546.
Same — Same — South Carolina. — In South Carolina mort-
gage sought to be enforced on lands lying in Georgia, can
only be regarded (looking to the case made by the record)
as a security for the payment of the debt due. Tucker v.
Toomer, 36 Ga. 138, 157.
Possession under Mortgage as Defense to Ejectment. —
A mortgage in this State is only a lien, and conveys no
title. Possession by virtue of it, therefore, furnishes no
defense against an action of ejectment by the holder of the
title. Phillips v. Bond, 132 Ga. 413, 64 S. E. 456.
Mortgage as Basis of Claim to Property. — A mortgage
does not pass title under this section and therefore can not
be made the basis of a claim to the mortgaged property;
nor can the holder of an unforeclosed mortgage claim the
proceeds of such property without showing equitable rea-
sons entitling him to do so, and among these it must, in a
case like the present, appear that the mortgagor is insol-
861 ]
§ 3256
MORTGAGES
§ 3257
vent. Ennis v. Harralson, etc., Co., 101 Ga. 282, 28 S. E-
839.
Creditor Taking Conveyance of Mortgaged Property.—
Where a creditor whose debt is secured by mortgage, in sat-
isfaction of such debt, takes a conveyance of the property
mortgaged, such conveyance is not effectual to vest in him
a title which would prevail upon the trial of a claim after-
wards filed by such creditor to prevent the sale of such
property under an execution issued from a judgment, jun-
ior to the mortgage, but older than the deed. Maclntyre
& Co. v. Ferst's Sons & Co., 101 Ga. 682, 28 S. E- 989.
Agreement of Mutual Title. — The parties could not by an
agreement make the instrument one both retaining title
and not retaining title; nor could they by such agreement
make a summary statutory proceeding applicable by law
to one character of instruments applicable by agreement 'to
another. Wynn v. Tyner, 139 Ga. 765, 78 S. E- 185. See
also, Bacon v. Hanesley, 19 Ga. App. 69, 90 S. E. 1023,
where cases holding to the contrary are cited and over-
ruled.
One holding title under a mortgagor "can not acquire an
interest in the property adverse to rights of the mortga-
gee of which he had previous notice. Hudson v. Gunn, 20
Ga. App. 95, 92 S. E. 546.
Title in Third Person. — According to the express recit-
als contained in a mortgage, upon the foreclosure of which
the execution issued by virtue of which the sheriff took
possession of the property in controversy, the property de-
scribed in the mortgage was not in the possession of the
mortgagor at the time the instrument was executed, and
the title thereto was vested in another person. Conse-
quently the mortgage did not take effect then or thereafter
as a valid, subsisting lien upon the property it purported
to cover. Hogg v. Fuller, 17 Ga. App. 442, 87 S. E- 760.
Divesting Intervening Title. — The mortgagee can not, by
an attempted purchase of mortgaged property, divest an in-
tervening title of which notice is had. Mclntyre v. Ferst's
Sons & Co., 101 Ga. 682, 28 S. E. 989; Booze v. Neal, 6
Ga. App. 279, 281, 64 S. E. 1104; Hudson v. Gunn, 20 Ga.
App. 95, 92 S. E. 546.
III. AFTER ACQUIRED INTEREST AND INCREASE.
Editor's Note. — The last sentence in this section was added
by the Acts of 1899, p. 32. The general rule, is that after-
acquired property, is not included in a mortgage. This ad-
dition to the section makes an exception to the general rule
of mortgages given to trustees to secure an issue of bonds,
when it is expressly stipulated that after-acquired property
is to be included in the mortgage. This sentence was first
codified in the Code of 1910.
General Rule. — Except in the instances provided for by
statute, a mortgage can not be given on property to be
thereafter acquired, under this section. Georgia Southern,
etc., Ry. Co. v. Barton, 101 Ga. 466, 28 S. E. 842; Lubro-
line Oil Co. v. Athens Bank, 104 Ga. 376, 30 S. E. 409;
Durant v. Duchesse D'Auxy, 107 Ga. 456, 33 S. E. 478;
Penton v. Hall, 140 Ga. 235, 238, 78 S. E. 917; Hogg v. Ful-
ler, 17 Ga. App. 442, 87 S. E. 760.
The general rule (with certain statutory exceptions), is
that a mortgage can not be made to include personal prop-
erty, under this section, as to which the mortgagor has
neither possession nor the right of possession at the time of
making the mortgage, but for which it is sought to pro-
vide by a clause including any personal property which may
be subsequently acquired by the mortgagor. Penton v.
Hall, 140 Ga. 235, 237, 238, 78 S. E. 917; Real Estate Bank
& Trust Co. V. Baldwin Locomotive Works, 145 Ga. 831,
90 S. E. 49.
A mortgage, though it purported to create in the mort-
gagee's favor a lien upon any interest in the described
reality which the mortgagor might acquire after the time
of its execution, was not, under the law now embodied in
this section, valid as to any such after-acquired interest.
Durant v. Duchesse D'Auxy, 107 Ga. 456, 33 S. E. 478.
Exception as to Railroads. — Future acquired property can
not be mortgaged (except by railroads; see notes to § 2585,
par. 10) unless within the terms of this section. Ga. S.
R. Co. v. Trust Co., 84 Ga. 319.
The Selma, Rome & Dalton Railroad Company had law-
ful charter power, when it executed the first mortgage, to
mortgage future -acquired property; and the lien of the first
mortgage was superior to that of the second mortgage on
all of the property acquired by the company after the date
of the first mortgage, there being then in existence no con-
stitutional inhibition of the enactment of a special law in
any case for which provision had been made by an existing
general law. Southern Railway Co. v. Lancaster, 149 Ga.
434, 100 S. E. 380.
Title Acquired Subsequent to Making Mortgage.— If one
gives a mortgage on land in his possession, to which he
at the time has no title, but afterwards acquires title to the
same, such title enures to the benefit of the mortgagee,
and the mortgage lien attaches to the land, as against the
mortgagor, the moment the mortgagor's title thereto is ac-
quired. Hill v. O'Bryan Brothers, 104 Ga. 137, 30 S. E- 996.
Mortgage of Income by Corporation. — In view of the pro-
visions of this section, a corporation of this State can not,
in the absence of express legislative authority so to do,
make a valid mortgage upon its income. Lubroline Oil
Co. v. Athens Savings Bank, 104 Ga. 376, 30 S. E. 409.
See also, Vason v. Ball, 56 Ga. 269.
Rents, Profits, Increase and Subsequent Purchases. — The
mortgagor holds the title until sold out and dispossessed by
foreclosure; hence the rents, issues and profits are the
mortgagor's, and are not embraced or covered by the mort-
gage; nor is stock, or cattle, or the increase thereof, or
plantation tools, subsequently bought, unless expressly stip-
ulated for in the mortgage. Vason v. Ball, 56 Ga. 269.
A mortgage on domestic animals does not cover the in-
crease thereof where there is no express mention of such
increase. Dixon v. Pierce, 22 Ga. App. 291, 95 S. E. 995.
IV. STOCK OF GOODS.
Loss and Substitution. — Under this section "a mortgage
may cover a stock of goods, or other things in bulk, but
changing in specifics, in which case the lien is lost on all
articles disposed of by the mortgagor up to the time of fore-
closure, and attaches on the purchases made to supply their
places."
This incident of loss and substitution of lien as to goods,
sold and bought takes place by operation of law whenever
there is a mortgage upon a stock of goods, and it is not
necessary that the parties expressly contract that this shall
be an incident of the giving of the mortgage, in order for
it so to be enforceable. Powers & Co. v. Georgia -Florida
Grocery Co., 7 Ga. App. 592, 67 S. E. 685.
Same — Lien Attaches to Value of Stock Originally Mort-
gaged.— Where a mortgage is executed upon a stock of
goods, some of which are subsequently sold and others pur-
chased to supply their place, the mortgage lien attaches,
under this section, to the purchases made, to the extent of
the value of the stock originally mortgaged. Anderson v.
Howard & Sims, 49 Ga. 313.
A mortgage of a stock of goods, under this section can
not, by subsequent purchase and addition of new goods to
such stock, be made to cover an amount greater in value
than the original stock mortgaged. Chisolm v. Chittenden
& Co., 45 Ga. 213.
Same — Where Goods Sold under Conditional Sale. — While
a mortgage covering a stock of goods, changing in specifics,
covers also under this section additional goods purchased
in the usual course of business to replenish the stock and
to keep the business going. (In re Caldwell, 178 Fed. 377),
there is no such statutory provision where the original
stock of goods is sold under a conditional bill of sale wherein
the title is reserved in the vendor. Smith v. Long Cigar,
etc., Co., 21 Ga. App. 730, 94 S. E- 905, citing Clarke v.
McNutt, 132 Ga. 610, 64 S. E. 795.
Lien Lost on Goods Sold. — The lien of a mortgage upon
a stock of goods changing in specifics, under this section,
is lost upon goods sold, and does not attach to the pro-
ceeds thereof. Ainsworth v. Mobile Fruit & Trading Co.,
102 Ga. 123, 29 S. E. 142.
Mortgage on Articles Particularly Described. — In this
State a valid mortgage may be created under this sec-
tion, upon a stock of goods and merchandise exposed for
sale in the regular course of business; but a mortgage upon
certain articles particularly described therein, though valid
as such, is not a mortgage upon a stock of goods chang-
ing in specifics, so that the lien would be lost upon such
mortgaged articles as might be disposed of in the regular
course of trade. National City Bank v. Adams, 30 Ga. App,
219, 117 S. E. 285.
Sufficiency of Description.— Where a mortgage, after de-
scribing specifically the fixtures and furniture of a bar,
described the stock generally as consisting of articles of a
certain kind, without any specification as to quantity,
quality or value, and all of the fixtures, furniture and stock
were stated as then being in the mortgagor's bar-room,
though, in fact, none of these things were in the bar-room,
but they were either in the railroad depot or en route to
that place, and in two or three days afterwards were placed
in the bar-room. The description was sufficiently specific
under this section to cover a stock of goods in bulk, but
changing in specifics. Wardlaw v. Mayer, Son & Co., 77
Ga. 620.
§ 3257. (§ 2724.) Form and execution. — No
particular form is necessary to constitute a mort-
gage. It must clearly indicate the creation of a
lien, specify the debt to secure which it is given,
and the property upon which it is to take effect-
[ 862 ]
§ 3257
MORTGAGES
§ 3257
It must be executed in the presence of, and at-
tested by, or proved before, a notary public or
justice of any court in this State, or a clerk of
the superior court (and in case of real property
by one other witness), and recorded. Acts 1870,
p. 34.
I. In General.
II. Particular Instruments.
[II. Descriptions.
[V. Execution.
Cross References.
660; 9 Enc. Dig.
As to security by
For full treatment, see 8 Cum. Dig
419; 3 Cum. Dig. 594; 3 Enc. Dig. 97.
mortgage for loan by building and loan associations, see
5 2878. As to attestation of deeds out of state, see § 4203.
A.s to attestation of conditional sales, see § 3318. See also,
lotes to §§ 3256, 3264.
I. IN GENERAL.
See 8 Cum. Dig. 660, 9 Enc. Dig. 419, 3 Cum. Dig. 593, 3
Snc. Dig. 96.
Editor's Note. — It will be noticed that the last words oJ
this section read "and recorded," without specifying any
prescribed time within which a mortgage is to be recorded.
In the Codes of 1863 and 1873, the words "within three
months from its date" appeared after the word "recorded."
rhe Acts of 1876, p. 34 changed this period of time from
:hree months to thirty days, and such change appeared in
the Code of 1882. But the Code of 1895 dropped this time
:lause and contained the section worded as it is in this
:ode.
Although the codifiers of the Code of 1910 did not include
the Acts 1889, p. 106 (codified in § 3320) on the margin of
this section, undoubtably it was the act that modified this
section and is accountable for omitting the time clause.
Such was the effect of this act on the section relating to
the recording of deeds (§ 4198). Prior to the act, deeds
were required to be recorded within one year; whereas,
under the law as it has read since the Act of 1889, no time
is prescribed within which a deed may be recorded so as
:o preserve its priority. (See Henderson v. Armstrong, 128
Ga. 804, 58 S. E. 624). Such must be the effect of the act
Dn this section, in view of the fact, that it places "deeds,
mortgages and liens of all kinds" on the same footing.
The Act of 1889 is somewhat misleading as it appears in
the Code as § 3320 in that it provides for "deeds, mort
gages, and liens of all kinds, which are now required to be
recorded * * * * within a specified time." This makes
it appear that there is still a specified time within which
to record a deed or mortgage, but construing the act as
of the time at which it was passed, it is palpable that it
referred to the specified times prior to its passage, and
that, at present, no time is specified. Other sections
throughout the code (see §§ 3260, 3263) make reference to
a specified time, but these sections were a part of the
:ode prior to the Act of 1889, and in- so-far as they refer to
specified times, are now of no value, as to record of mort-
gages generally.
Section Requires No More Than Common Law. — This sec-
:ion is, in truth, nothing more than what the common law
required, and amounts only to saying that the form of the
undertaking is immaterial. If the material elements of a
mortgage are there — sufficient certainty as to what the
parties intend — the paper is good as a mortgage thqugh
there be no words of conveyance or any other of the usual
forms of a mortgage. Allen v. Lathrop & Co., 46 Ga. 134,
136.
This section dispenses with formalities in the execution
of mortgages. Matters of form are no longer, under this
section considered of any consequence in determining
whether or not a given instrument amounts to a mortgage.
Mason v. Parker, 101 Ga. 659, 661, 28 S. E- 985.
Language Necessary. — There must be proper words used
in order to create a lien. In Georgia, where no particular
form is required in a deed or mortgage, under this sec-
tion, it is not necessary to use "grant," "bargain," or
other technical words; but any language showing an in-
tent to convey or mortgage is sufficient. Horton v. Mur-
den, 117 Ga. 72, 43 S. E. 786.
Must Be in Writing. — Under this section, a mortgage
must necessarily be in writing and be duly executed by
the party to be bound thereby. Printup v. Barrett, 46 Ga.
407. Duke v. Culpepper, 72 Ga. 842; Pierce v. Parrish, 111
Ga. 725, 37 S. E. 79.
Notes Payable in Specifics. — It makes no difference, un-
der this section, that notes, to secure which the mortgage
was given, are payable in specifics. The value of the
specifics may be recovered. Hatcher v. Chancery, 71 Ga.
689.
Applied in Jackson v. Carswell, 34 Ga. 279; Burnside v.
Terry, 45 Ga. 621; Cully v. Bloomingdale, 68 Ga. 756; Park
v. Snyder, 78 Ga. 571, 3 S. E. 557; Horton v. Murden, 117
Ga. 72, 43 S. E- 786.
Cited in Cottrell v. Merchants Bank, 89 Ga. 508, 15 S. E-
944; Bond v. Brewer, 96 Ga. 443, 23 S. E. 421; Franklin v.
Callaway, 120 Ga. 382, 47 S. E. 970; Rowe v. Spencer, 140
Ga. 540, 79 S. E. 144; Brown v. Aaron, 20 Ga. App. 592, 93
S. E. 258; In re Marshall Co., 291 Fed. 268; Woodward v.
Jewell, 140 U. S. 247; Wyley v. Bird, 159 Ga. 246, -125 S.
E. 496; Winn v. Herring, etc., Co., 35 Ga. App. 419, 126
S. E- 879.
II. PARTICULAR INSTRUMENTS.
What Instruments Construed as Mortgages. — Any in-
strument creating a lien, specifying the debt to secure
which it is given and the property upon which it is to
take effect, is to be construed as a mortgage under this
section, notwithstanding that there may be some language
in the instrument which would indicate an intention to
convey the legal title. Powers & Co. v. Georgia -Florida
Gro. Co., 7 Ga. App. 592, 67 S. E. 685.
Instrument Indicating that Title Should Pass. — An in-
strument, after reciting that the makers were indebted to
F. in an amount named, for which a note had been given,
conveyed to him certain personalty, specifying that it was
intended that the title should pass. It provided further,
that if the note was not paid when due, F. should take
possession of said property, and after advertising, sell it,
and apply the proceeds to the debt; that if the note was
met at maturity, he should reconvey by quit-claim deed.
It was held that the instrument was a mortgage, under
this section, and might be foreclosed as such. Frost v.
Allen, 57 Ga. 326.
Assignment of Bond for Title. — Under this section, an
assignment of a bond for title as security for a debt, which
clearly expresses its purpose and specifies the debt and
the property, is in legal effect a mortgage, and, to be ef-
fective against subsequent liens, must be recorded. Fuller
v. Atlanta Nat. Bank, 254 Fed. 278.
A deed of bargain and sale, absolute in its terms, and
purporting to convey the fee in consideration of ninety dol-
lars in hand paid, passes title; and an entry endorsed upon
it and signed by the grantee to the effect that the deed is
to be returned to the grantor cancelled, on condition that
the grantor shall pay to the grantee ninety dollars by a
specified time, with interest, does not convert the instru-
ment into a mere mortgage, under this section. Jay v.
Whelchel, 78 Ga. 786, 3 S. E. 906.
Bill of Sale. — Where an instrument was executed by a
party in the nature of a bill of sale, but the language used
showed the intent of the parties to be the execution of a
mortgage: it was held to be a mortgage. Stokes v. Hol-
lis, 43 Ga. 263.
Purchase-Money Notes. — Promissory notes, reciting that
they were given for the purchase-money of certain described
chattels, but neither reserving title in the property sold
nor containing a mortgage to secure the purchase-money,
evidence no lien upon such chattels and confer no right
upon the holder to have his debt paid out of funds, in the
hands of the sheriff, arising from the sale of such chattels.
Bush v. Kimbrell, 25 Ga. App. 424, 103 S. E. 686.
Second Agreement Written on Mortgage. — See Howard
v. Rumble, 4 Ga. App. 327, 6 S. E. 297.
III. DESCRIPTIONS.
See 8 Cum. Dig. 661, 9 Enc. Dig. 420; 3 Cum. Dig. 594,
3 Enc. Dig. 97.
Between Parties and to Impart Notice. — "The words of
description in a mortgage may be sufficient to create a
lien, and yet be insufficient of themselves to impart no-
tice of the lien which they create." Nussbaum v. Water-
man, 9 Ga. App 56, 70 S. E. 259; Reynolds v. Tifton Guano
Co., 20 Ga. App. 49, 51, 92 S. E. 389.
In a case where one claims the proceeds of ' a sale of
mortgaged property, under a subsequently acquired lien,
the sufficiency of the mortgage description is not governed
by the rule which would obtain between the parties to the
writing, but such a degree of definiteness is required as
would be sufficient to impart record notice to third par-
ties. Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 92 S
E. 389.
General descriptions, such as "all the estate, both real
and personal, of the grantor," "all my land in a certain
town, county, and State," and "all my land, wherever
situated," have been held good and sufficient under this
section. Bennett v. Green, 156 Ga. 572, _ 119 S. E. 620.
Equal Division of Opinion as to Description. — See 1 Cum.
Dig. 1050.
[ 863 ]
§ 3257
MORTGAGES
§ 3257
Parol Evidence to Aid Description. — In providing that
a mortgage or a conditional bill of sale shall specify the
property on which it is to take effect under this section,
the law does not require such a description as will serve
to identify the property without aid of parol evidence.
Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga.
S79, 48 S. F. 333.
Describing Cotton. — See Stephens v. Tucker, 55 Ga. 543.
Mares. — A paper, providing for a lien on a "bay mare,"
and showing that the mare was purchased by the mort-
gagor from the mortgagee, is a sufficient description of
the property mortgaged under this section. Nichols v.
Hampton, 46 Ga. 253.
Whether or not a description in a mortgage, of mares,
by name, age, and color was sufficient to put the pur-
chaser on notice, was a question for the jury. Reynolds v.
Jones, 7 Ga. App. 125, 66 S. F. 395.
Seven Head of Mules and Horses. — A writing which pur-
ports to create a mortgage lien upon property described as
"seven head of mules and horses" is void under this sec-
tion as against one claiming the proceeds of a sale thereof
under a subsequently acquired lien by attachment. Rey-
nolds v. Tifton Guano Co., 20 Ga. App. 49, 92 S. F-*389.
Stock of Goods in Store. — Considering the caption and
body together, the mortgage in this case covers goods in
the brick store of the mortgagor in a certain place on the
street named, and between two other stores named. It in-
cluded all the merchandise in that store and to be in it
to supply the place of old goods sold; and the description
was sufficient. Welsh v. Lewis & Son, 71 Ga. 387.
The following description: "Our entire stock of dry
goods, boots, shoes, hats, clothing, and notions, and such
other goods as are usually kept in a first-class country
store," (without any location of the goods, or without any
other language of identification), is not a sufficient descrip-
tion under this section. Jaffrey v. Brown, 29 Fed. 476.
Property Description — Questions of Law and Fact. — It is
only when the terms descriptive of property intended to be
conveyed by a written instrument are manifestly too mea-
ger, imperfect, or uncertain to serve as adequate means
■of identification that the court can, as a matter of law,
adjudge the description to be insufficient. "Whether such
terms will serve to identify the premises is a question of
fact, and not of law. Balchin v. Jones, 10 Ga. App. 434,
73 S. F- 613.
Boundaries of Land. — A mortgage, which described the
land as having a frontage of a certain number of feet and
extending back a stated distance, and which set out the
boundaries on each side, and further described the prop-
erty as being the same which was conveyed to the mort-
gagor by a deed of certain date and recorded on a speci-
fied date, fully identified the land, under this section. In
re Corbitt, 248 Fed. 988.
In a mortgage description of land, the words, "bounded —
by F. M. S." will be construed as meaning "bounded by
lands of F. M. S." Smith v. Downing Co., 21 Ga. App.
741, 95 S. F. 19.
A description of land in a mortgage in these terms :
"Two hundred and sixty-one acres of land off of lots num-
bers five, twenty-seven and twenty-eight, in the ninth
district of Randolph County," is fatally defective for want
of sufficiently definite description, under this section. At-
kins v. Paul, 67 Ga. 97.
Twelve Acres of Cotton.— A mortgage on "twelve acres
of cotton," without any further description, does not suffi-
ciently specify the property upon which it is to take effect,
under this section. Hampton v. State, 124 Ga. 3, 52 S.
B. 19.
Description of Indebtedness Secured. — This section is to
have a reasonable construction, and is to be construed in
reference to its intent, to-wit: to facilitate and not to
hamper and restrict mortgage liens. It requires that the
debt or duty of the mortgagor shall be specified; it does
not say that such duty shall be specific and precise. It
may be indefinite, as to indemnify a surety for whatever
he may pay in a certain event, or to hold one harmless for
whatever may happen under certain circumstances. The
paper must point out what the parties intend. Allen v.
Lathrop & Co., 46 Ga. 134, 136.
Same — Different Rule as to Deed to Secure Debt. — While,
under the provisions of this section, one of the requisites
to the validity of a mortgage is that the debt which it is
given to secure shall be therein specified, a different rule
obtains as to a deed given to secure a debt, and it is not
necessary that such a conveyance shall specify the amount
of the indebtedness that it is given to secure (McClure v.
Smith, 115 Ga. 709, 712, 42 S. F. 53). Troup Co. v. Speer,
23 Ga. App. 750, 99 S. F- 541.
Securing "Aforesaid Promissory Notes." — Where a chat-
tel mortgage is executed which describes the debt in-
tended to be secured as the "aforesaid promissory notes,"
and it appears that two papers in the form of promissory
notes, the one duly executed and attached to and preceding
the mortgage, and the other written on the same, paper
with and immediately preceding the mortgage but un-
signed by the maker, such mortgage sufficiently describes,
under this section, the debt intended to be secured to
create a lien for the sum of the notes in favor of the mort-
gagee upon the mortgaged property. Mason v. Parker, 101
Ga. 659, 28 S. F. 985.
Securing Advances. — A mortgage upon real estate given
to secure "advances" to be made by the mortgagee to the
mortgagor, for the purpose of carrying on the farm of the
mortgagor for 1870, is not invalid for want of a sufficient
description of the debt intended to be secured, under this
section. Allen v. Lathrop & Co., 46 Ga. 134.
Mortgage to Secure Note and Future Advances. — A
mortgage which recites that it is given to secure the pay-
ment of a promissory note for a specified amount and
"such future advances in money, stock, merchandise and
plantation supplies" as may be made to the mortgagor by
the mortgagee during a given year, is valid only as a
mortgage to secure the payment of the note, under this
section. Any indebtedness above the amount of the note
is to be treated as an indebtedness on open account.
Benton- Shingler Co. v. Mills, 13 Ga. App. 632, 79 S. F.
755.
Under this section, a mortgage to secure a note due, as
well as any general or special balance due from the mort-
gagor up to the value of the property, which was described
as being of the value of $5,000, is sufficiently definite to be
valid as a mortgage for future advances up to $5,000. In
re Corbitt, 248 Fed. 988.
Indemnifying Surety Upon Bond. — Under this section,
where a mortgage is given to indemnify one who becomes
a surety upon a bond in which the mortgagor is principal,
a. misdescription of the particular bond may be corrected
by parol testimony so as to indentify the bond described in
the mortgage with the one upon which the mortgagee be-
came surety. And the mere misdescription of the bond
will not have the effect to render the mortgage invalid as
a lien upon the property described, either as to the mort-
gagor himself or his vendees. Fmerson v. Knight, 130 Ga.
100, 60 S. F. 255.
Parol Evidence to Explain Indebtedness. — "There was no
error in admitting parol evidence to show that the indebted-
ness secured by the deed when it was made was greater
than the amount of consideration expressed on its face."
Hester v. Gairdner, 128 Ga. 531, 537, 58 S. F. 165.
IV. EXECUTION.
See 8 Cum. Dig. 664, 9 Fnc. Dig. 423; 3 Cum. Dig. 596, 3
Fnc. Dig. 100.
Mortgage Takes Effect Upon Execution. — A paper con-
taining all the requisites of a mortgage of personal prop-
erty, is a mortgage from the date of its execution, under
this section, even though it be not attested by an officer.
Nichols v. Hampton, 46 Ga. 253.
Execution of Conditional Sales .Governed by This Section.
—See § 3318 and notes thereto.
A seal is not necessary to the validity of a mortgage,
even upon real estate, under this section, and a mortgage
is valid, as between the parties thereto, without any at-
testing witness and without being recorded. . Hawes v.
Clover, 126 Ga. 305, 55 S. F. 62.
Necessity for Official Witness. — Notwithstanding the em-
ployment of the word "must," under this section it has
never been held that a mortgage was totally void for want
of an official witness, it is surely safe to say that a duly
executed reservation of title should not, for such a reason,
be held wholly invalid. The contract containing it can not
be lawfully recorded unless the same be attested by "or
proved before" one of the designated officials; nor can the
holder get the protection which would result from the con-
structive notice to others given by the record; but surely
he ought to be protected in his rights as against one who
takes with actual notice of the fact that the title has been
reserved. Hill v. Ludden, etc., Music House, 113 Ga. 320,
323, 38 S. F- 752.
Same — Attestation Pertains to Record. — An unattested
mortgage is good as between the parties thereto, or as be-
tween the maker and a transferee. The requirement rel-
ative to attestation, as prescribed by this section pertains
to the prerequisite necessary to its record, and has appli-
cation only so far as the intervening rights of third persons
without notice are concerned. Futch v. Taylor, 22 Ga.
App. 441, 96 S. F. 183. See also, Donalson v. Thomason,
137 Ga. 848, 74 S. F. 762; Jacobs v. State, 4 Ga. App. 509,
61 S. F. 924.
[861]
3257
MORTGAGES
§ 3258
Attesting Witnesses— Judge of Superior Courts.— Where
lis section provides that a mortgage may be attested by
a notary public or justice of any court in this state," the
ord "justice" is used as being interchangeable with
judge," and under this provision a judge of the superior
jurt of this state is authorized to attest mortgages. Strauss
. Maddox, 109 Ga. 223, 34 S. E. 355.
Same— Stockholder of Corporation.— A stockholder, though
(competent to take an acknowledgment of a mortgage as
notary, because he is a stockholder of the mortgagee
n-poration, is not incompetent as a non-official witness to
le signature of the mortgagor, under this section. Peag-
r v. Davis, 143 Ga. 11, 84 S. E- 59.
A stockholder of a corporation bears such financial rela-
on to it that he is disqualified from attesting, as a notary.
mortgage to which the corporation is a party. Southern
on & Equipment Co. v. Voyles, 138 Ga. 258, 75 S. E- 248;
eagler v. Davis, 143 Ga. 11, 15, 84 S. E. 59.
Same— Employee of Bank.— A mortgage to a bank at-
:sted by an employee of the bank as a notary public does
at render it invalid under this section. In re Virgin, 224
ed. 128.
Same— Probate.— The attesting witness of a deed of mort-
age swore that he was "a subscribing witness to the
lortgage; that he saw the maker of the same assign it:
nd also saw the other subscribing witnesses assign it."
: was held, that the probate was insufficient to admit the
lortgage to record. Stanley v. Suggs, 23 Ga. 137.
Certificate of Acknowledgment. — Under this section which
squires a mortgage to be attested before a notary public
i- justice of a court, it is not necessary that the notary
hould attach a formal certificate of acknowledgment. In
( Virgin, 224 Fed. 128.
A certificate, under this section, which merely stated
sworn to and subscribed before me," shows that the same
ne who subscribed the instrument swore to it, and is suffi-
ient, whether it refers to the grantor or to the attest -
lg witnesses since - probate by either would be sufficient,
n re Hammett, 286 Fed. 392.
Signing Acknowledgment. — Under this section and §§
318, 3319, the subsequent signing of an acknowledgment
f an original signature before a notary public, who at-
ests the last signature, to a previously executed contract
f conditional sale, is in effect a re-execution. Saranac
:o. v. Heyward, 293 Fed. 499.
The signature of a notary to the acknowledgment or pro-
ate can be construed as an attestation, under this sec-
ion. Saranac Co. v. Heyward, 293 Fed. 499.
Place of Execution. — A mortgage on real estate, which
ontains no recital as to its place of execution, except the
aption, "Georgia, Washington County," and the attest-
ng clause wherein the official witness signs his name with
he addition, "J. P., Bartow, Jefferson County, Georgia,"
s to be construed as showing upon its face that it was at-
ested by the official witness in Jefferson County, and, if
•therwise entitled to record, may be recorded in that
.ounty. If the word Bartow had been omitted, it would be
>resumed to have been attested in Washington County.
Bryant v. Davis, 145 Ga. 531, 89 S. E- 512.
Affidavit of Execution as Substitute for Attestations. —
Jnder this section, an affidavit of the execution of a bill
)f sale, given as security, made before a notary public, by
me who was not an attesting witness, was insufficient as
'proof" to substitute due attestation, and did not render
;he instrument eligible to record. In re Smith, 281 Fed.
574.
Husband Signing Wife's Name. — Under this section where
i husband signs his wife's name to a mortgage purport-
ing to be executed by her, in her immediate presence and
by her express request and direction, the effect of such
signature is the same as if she had signed the mortgage
Herself. Hawes v. Glover, 126 Ga. 305, 55 Ga. 62.
Mortgages on Realty. — In order to be entitled to record,
mortgages on realty must be attested by two witnesses
under this section. Bryant v. Davis, 145 Ga. 531, 532, 89
S. E. 512.
Same — One Witness. — A mortgage of real estate attested
by but one witness is not void under this section, and, if
a subsequent mortgage or purchaser buys or takes his
mortgage with actual notice of a prior mortgage, he takes
subject to it, even though if have but one witness. Gardner,
etc., Co. v. Moore, etc., Co., 51 Ga. 268; Donalson v.
Thomas, 137 Ga. 848, 74 S. E- 762.
Same — Crops of Cotton and Corn. — Crops of cotton and
corn being realty, in order to be entitled to record, a mort-
gage of the same must have been attested by two wit-
nesses, one an official, under this section. Farmers Ware-
house Co. v. First Nat. Bank, 152 Ga. 262, 109 S. E. 133;
Whatley v. Virginia-Carolina Chemical Co., 31 Ga. App.
226, 120 S. E. 436.
Ga. Code— 28 [ 865
A bill of sale to the immature and growing crop, in order
to be entitled to record, must have been attested by two
witnesses, one of whom is an official witness under this
section. Farmers Warehouse Co. v. First National Bank,
152 Ga. 262, 109 S. E- 133.
Contract for Conditional Sale of Personalty. — Though
attestation of a written contract for the conditional sale
of personalty in compliance with this section is necessary
to its being legally recorded, yet it is not essential that the
attesting witness be an official, if proper probate is made.
Burgsteiner v. Street -Overland Co., 30 Ga. App. 140, 117
S. E. 268.
Bill of Sale with Reservation of Title. — To be valid as
against third persons, an instrument purporting to be a
bill of sale with reservation of title must be executed in the
presence of and attested by and approved before one of
the officials named in this section and must be recorded
within thirty days from its date. Forbes Piano Co. v.
Oliver, 11 Ga. App. 65, 74 S. E- 713.
Admissibility of Parol Evidence. — Parol evidence of the
facts attending the execution of a security deed can not be
considered to aid it, but the validity of the record must be
established by the face of the record, and of the recorded
instrument, since this section requires not only the execu-
tion of such a deed in the officer's presence but also the
attestation by him, or a subsequent probate before him,
and that fact must appear by official certificate and not
otherwise. In re Hammett, 286 Fed. 392.
Time of Record. — See ante, this note, "Editor's Note."
Under "In General," I.
§ 3258. (§ 2725.) Reducing deed to mortgage.
— A deed or bill of sale, absolute on its face and
accompanied with possession of the property,
shall not be proved (at the instance of the par-
ties) by parol evidence to be a mortgage only,
unless fraud in its procurement is the issue to be
tried. Act 1837, Cobb, 274.
Construction with other Sections. — This section is con-
strued together with §§ 4183, 4268, 5752. Eewis v. Board,
70 Ga. 487.
Section Applicable Only between Parties. — The principle
announced in this section is applicable only where the par-
ties to deeds absolute in form undertake to prove by parol
that they are only security for debt. Stern v. Howell, 160
Ga. 261, 266, 127 S. E. 776.
Possession. — When the deed is accompanied by the pos-
session of the property the court interpreted this section
to mean an actual possession, and not that sort of pos-
session which consists in agreeing to hold possession lor
the grantee in the deed. The section evidently recognizes
the formal change of possession as an act indicating on the
part of the grantor in the deed, by the deliberate abandon-
ment of his own possession, that his agreement is fully
expressed in the deed. Spence v. Steadman, 49 Ga. 134,
140.
Same — Effect of Possession in Vendor. — Where a paper,
on its face, indicated that the possession remained with
the vendor, the case does not come within the provisions
of this section, prohibiting parol evidence. Denton Bros,
v. Shields, 120 Ga. 1076, 1079, 48 S. E. 423.
Under this section, a deed absolute on its face may be
shown by parol evidence to have been intended to convey
title only for the purpose of securing a debt, where the
grantee has not taken possession of the property. Askew
v. Thompson, 129 Ga. 325, 58 S. E- 854; Mercer v. Mor-
gan, 136 Ga. 632, 71 S. E. 1075; Spencer v. Schuman, 132
Ga. 515, 64 S. E. 466; Berry v. Williams, 141 Ga. 642, 81
S. E. 881; Lowe v. Findley, 141 Ga. 380, 81 S. E. 230; Paulk
v. Dorminey, 154 Ga. 785, 115 S. E. 488; Copelin v. Williams,
152 Ga. 692, 111 S. E. 186; Renitz v. Williamson, 149 Ga.
241, 99 S. E. 869; Daniel v. Charping, 151 Ga. 34, 105 S.
E. 465; Dykes v. Porter, 31 Ga. App. 86, 119 S. E. 455.
Bond for Title — Under this section a transfer of a bond
for title to land, absolute in form, may be shown to have
been made for the purpose of securing a loan, where the
transferor retains the possession of the land. Renitz v.
Williamson, 149 Ga. 241, 99 S. E- 869.
Deed to Secure Debts.— Under this section where a deed
absolute on its face is made to secure a debt, the legal title
will vest in the grantee and the equitable title, or right to
have the property reconveyed on payment, of the debt, will
remain in the grantor. Waller v. Dunn, 151 Ga. 181, 106
S. E. 93; Paulk v. Dorminey, 154 Ga. 785, 115 S. E. 488;
Copelin v. WTilliams, 152 Ga. 692, 111 S. E. 186. And in
Hester v. Gairdner, 128 Ga. 531, 58 S. E. 165, it is stated
that the same rule applies whether the deed was for pre-
existing liabilities or future liabilities.
3259
MORTGAGES
§ 3259
Quitclaim Deed to Secure Debt.— Where tenants in com-
mon of a tract of land conveyed the same by quitclaim deed
to a third person, but remained in possession of the land,
and the grantee in such security deed was never in pos-
session thereof, the rule of this section applies, and it can
be shown by parol evidence, by the heir of one of the ten-
ants in common, that the deed was made only to secure a
debt for money borrowed. So. Ry. Co. v. Williams, 160
Ga. 541, 128 S. % 681.
Bill of Sale to Secure Debt.— A writing in the form of an
absolute bill of sale, but in fact intended only as security
for a debt, conveys title, but is treated as an equitable
mortgage, under this section. Denton Bros. v. Shields, 120
Ga. 1076, 1078; Farmer v. State, 18 Ga. App. 307, 89 S. E.
382. See also, Ellison v. Wilson, 7 Ga. App. 214, 66 S. E.
631.
Deed to Enable Grantee to Sell for Owner.— Parol evi-
dence was admitted to show that a deed absolute in form
was made only to enable the grantee to sell or pledge prop-
erty for the owner. This holding does not conflict with the
provisions of this section. Simpson Grocery Co. v. Knight,
148 Ga. 410, 96 S. E. 872.
Parol Agreement to Reconvey. — When a party contracts
on the purchase of a property in payment of a debt, to
reconvey on the payment of the amount at which he was
taken in a settlement, and agrees to reduce it to writing,
but does not, and refuses to comply, it is not a case in
which parol evidence can not be admitted under the Act
of 1837, (this section). Henderson v. Touchstone, 22 Ga. 1.
Implied Trust. — This section is not applicable to a case
seeking to set up an implied trust. Jenkins v. Lane, 154
Ga. 454, 115 S. E. 126; Stern v. Howell, 160 Ga. 261, 266.
127 S. E. 776.
Reformation of Security Deed into Mortgage for Mis-
take of Law. — See § 4576 and notes thereto.
Fraud in Procurement. — The principle of this section,
that, when fraud in the procurement is the issue to be
tried, parol evidence will be admissible to reduce the in-
strument to a mortgage, was applied in Brown v. Carmi-
chael, 149 Ga. 548, 101 S. E. 124; Berry v. Royal, 152 Ga.
425, 110 S. E. 167.
Sufficiency of Petition. — A grantor in a deed absolute in
form but made to secure a debt, who remains in posses-
sion of the land conveyed, may, upon the payment of the
debt, have the deed canceled as a cloud on his title. A
petition alleging facts as just indicated is not demurrable
upon the grounds that it states no cause of action, con-
tains no equity, and seeks by parol evidence to add to,
take from, or vary a written contract, under this section.
Blankenship v. Cochran, 151 Ga. 581, 107 S. E- 770.
The petition in this case does not set out a cause of ac-
tion for reformation of the deed so as to convert it into a
mortgage under this section. Brown v. Carmichael, 149
Ga. 548, 101 S. E. 124.
A petition to have a warranty deed declared a security
deed in which it is not alleged that the petitioner could not
read, or that any fraud was practiced which excused her
from reading the instrument which she signed, is subject
to general demurrer. Burns v. Washington, 149 Ga. 42, 99
S. E. 115.
Charging Section. — The charge in this case does not con-
tain error harmful to the excepting party in this case, but
would have been open to challenge by the defendants had
they, instead of prevailing, been the losing parties, on the
ground that it should have been qualified by a statement
in this connection, or elsewhere in the charge, of the pro-
visions of this section. Walker v. Lastinger, 141 Ga. 435,
81 S. E. 203.
Applied in Mitchell v. Fullington, 83 Ga. 301, 9 S. E. 1083;
King v. Herrington, 158 Ga. 148, 122 S. E. 879; Wilkes v.
Carter. 149 Ga. 240, 99 S. E. 860.
Cited in Murphy v. Purifoy. 52 Ga. 480; Pusser v. Thomp-
son, 132 Ga. 282, 64 S. E. 75; Marshall v. Pierce, 136 Ga.
543, 71 S. E. 893.
§ 3259. (§ 2726.) Registry. — Mortgages on
realty must be recorded in the county where the
land lies; on personalt}', in the county where the
mortgagor resides at the time of its execution, if
a resident of this State. If a non-resident, then in
the county where the mortgaged property is. If a
mortgage be executed on personalty not within the
limits of this State, and such property is afterwards
brought within the State, the mortgage shall
be recorded according to the above rules within
six months after such property is so brought in.
All chattel mortgages of stocks of goods, wares,
[ 866 ]
and merchandise, or other personal property, shall
be recorded, in case the same is upon property or
goods located in some other county than that of
the mortgagor's residence, in the county where
said goods or personal property is located at the
time of the execution of said mortgage, in addi-
tion to the record of said mortgage in the county
of the mortgagor's residence. And in cases where
a mortgage either upon realty or personalty is
executed to secure the payment of money or
other thing of value, and the same is not re-
corded as now provided by law, but such mort-
gage is renewed or re-executed, in every case of
renewal or re-execution of a mortgage which has
not been recorded, such mortgage shall operate
as a lien upon the property of the mortgagor
only as against the mortgagor himself and those
having actual notice of such mortgage, except
from the date of the record of such mortgage.
Act 1755, Cobb, 159; Act 1768, Cobb, 162; Act
1827, Cobb, 171, 172; 1876, p. 34; Acts 1878-9,
p. 139.
Cross References.— For full treatment of registry of mort
gages generally, see 8 Cum. Dig. 660, 9 Enc. Dig. 424; 9
Cum. Dig. 919, 11 Enc. Dig. 104. As. to registry of chat-
tel mortgages, see 3 Cum. Dig. 598, 3 Enc. Dig. 100. As
to registry of conditional sales, see 3 Cum. Dig. 628,
Enc. Dig. 100, and see also, § 3319. As to probate for
record, see § 3264.
This Section Repealed English Statute.— The registry act
of 1755, Cobb, 159 (from whence this section came) was
held to be repugnant to the Statute 32 Henry VIII, chap-
ter 9, and therefore the act repealed the statute, if it was
ever in force in Georgia. Cain v. Monroe, 23 Ga. 82.
Time for Recording. — See "Editor's Note," under § 3257
Record as between Parties. — Generally, as among them-
selves, the priority of mortgage liens is fixed by the date
of the record, in the absence of the elements of notice,
under this section and § 3260. Durden v. Aycock Bros.,
13 Ga. App. 420, 79 S. E- 213. See § .3260, and the notes
thereto.
Mortgages Effective from Time of Record as to Third
Persons. — Mortgages, as against the interest of third par-
ties acting in good faith and without notice, who may have
acquired a transfer or lien binding the same property, take
effect from the time they are filed for record, under this
section. Patterson Co. v. Peoples Loan, etc., Co., 158 Ga
503, 509, 123 S. E. 704. See also, Albany Nat. Bank v
Georgia Banking Co., 137 Ga. 776, 74 S. E. 267.
The due record of a mortgage is notice from the time of
record to all the world. Hays v. Reynolds, 53 Ga. 328, 330.
Filing and Probate for Record. — See Albany Nat. Bank
v. Georgia Banking Co., 137 Ga. 776, 74 S. E. 267.
Record of Conditional Sales. — The writing which evi
dences a conditional sale of personalty has to be recorded
in the county where the vendee resides, under this section
Record in another county will not suffice. Cohen &, Co. v
Candler, 79 Ga. 427, 7 S. E. 160. See also, Bank v. Baldwin
L. Works, 145 Ga. 831, 90 S. E- 49. And in order for th«
reservation of title to be good against third persons, it if
essential that a conditional sale contract should be sc
recorded. Pickard v. Garrett, 141 Ga. 831, 82 S. E. 251.
A conditional bill of sale may be executed before and at
tested by a clerk of a superior court in the county whereir
he holds his office, and may thereupon be properly recorder
in any other county wherein the vendee resides at th«
time of its execution. Anderson v. Leverette, 116 Ga. 732
42 S. E. 1026.
In Williams v. Small, 19 Ga. App. 600, 91 S. E- 920, ii
was held that the evidence was insufficient to show that i
conditional sale contract had not been recorded in tht
county of the vendee's residence.
Same — Executed in Another State. — In view of this sec-
tion and §§ 3260 and 3319 it follows that a conditional bil
of sale to personalty, executed in another state where thi
property was at the time of the execution of the instruf
ment, by a resident of that state to a resident of thi;
state, should have been recorded in the county of this stati
where the vendee resided, within six months after it wa;
brought into this state, and record within such time ii
another county of this state where the property wa:
temporarily was not sufficient. North v. Goebel, 138 Ga
739, 76 S. E- 46.
But in re Bondurant Hdw. Co., 231 Fed. 247, it was hel>
§ 3259
MORTGAGES
§ 3260
that the portion of this section which provides that mort-
gages executed on personalty not within the limits of the
state should be recorded within six months after the prop-
erty was brought in, does not apply to a conditional sale
contract of goods to be shipped into the state.
The rules of the two preceding paragraphs seem to be
in direct conflict, and are not reconcilable. Ed. Note.
Chattel Mortgage — Failure to Properly Record. — See §
3260 and notes thereto.
A chattel mortgage which is not recorded in the county
of the mortgagor's residence, as required by this section,
is postponed to judgment against the mortgagor. Thomp-
son v. Morgan, 82 Ga. 549, 9 S. F. 534.
Where a resident of C. county purchased a mule in B.
county, and gave a note and chattel mortgage, which was
also signed by a resident of B. county because the seller
was unwilling to sell to the buyer on credit, the recording
of the mortgage in B. county was a substantial compliance
with this section and § 3262, and was sufficient to give no-
tice to a prudent purchaser. In re Hughes, 214 Fed. 270.
Same — Execution in this State by Non-Resident. — Where
a mortgage on personal property, then in Georgia, is exe-
cuted in this state by a non-resident thereof, this section
requires it to be recorded in the county where the prop-
erty is when it is executed. Where a mortgage so exe
cuted was not thus recorded until long after the time pro-
vided by law, and until the property had been surrendered
by the mortgagor to the person from whom he bought it,
and to whom he had given a mortgage with a reservation
of title in the vendor until payment, which was recorded in
Alabama, and until the property had been sold after such
surrender to a third person, the Georgia mortgage lost its
lien, and the last purchaser took the title freed therefrom.
Hunt v. Bowen, 75 Ga. 662.
Mortgage of Personalty Executed in Another State. —
A mortgage executed in another state on personalty sub-
sequently brought into this state, but not recorded in the
county where the 'property is brought, within six months
provided by this section, is postponed to a purchase of the
same property, made in good faith and without notice, un-
der the foreclosure of a duly recorded junior mortgage, al-
though the purchase was made before the expiration of the
six months allowed by law for the senior mortgagee to
record his incumbrance. Hubbard v. Andrews, 76 Ga. 177,
and Peterson v. Kaigler, 78 Ga. 464, 3 S. F. 655, dis-
tinguished. Armitage-Herschell Co. v. Muscogee Real
Fstate Co., 119 Ga. 552, 46 S. F. 634; Malone, etc., Co. v.
Hammond, 6 Ga. App. 114, 64 S. F. 666.
Where a mortgage on personal property was regularly
made and recorded in another state, and the property hav-
ing been brought into this state, the mortgagee followed it
and foreclosed his mortgage in the county where the prop-
erty was found, and caused it to be levied, which was done
before the expiration of the time allowed for the registry of
such a mortgage in this state, under this section, the fore-
closure was valid as against a bona fide purchaser of the
property without notice of the encumbrance, although the
mortgage was not recorded in this state until after its fore-
closure. Hubbard v. Andrews & Co., 76 Ga. 177.
If a mortgage containing a power of sale be duly re-
corded, it may be exercised as against the mortgagor, and
those claiming under him, either by deed, or as purchasers
at a judicial sale, under process to which the mortgage is
superior in its lien. Calloway v. Peoples Bk., 54 Ga. 441.
Re-execution. — The subsequent signing of an acknowledg-
ment of an original signature before a notary, who attests
the last signature, to a previously executed contract of
conditional sale, is in effect a re-execution under this sec-
tion which authorizes re-execution of an instrument not
recorded. Saranac v. Heyward, 293 Fed. 499.
Re-recordation. — The record of a mortgage defectively at-
tested or probated amounts to no record of it. If the mort-
gage afterwards be attested so as to entitle it to record, it
must be recorded anew in order for it to be constructive
notice. The entry of the name of the new attesting offi
cial upon the old record is improper and will not suffice.
Donalson v. Thomason, 137 Ga. 848, 74 S. F. 762.
Additional Recordation in County Other than Mortgagor's
Residence — When Section Applicable. — This section does
not apply where a chattel mortgage was recorded in the
county in which the mortgagor resided at the time of its
execution, and in which the mortgaged property was lo-
cated when he executed a subsequent mortgage therein to
another, the second mortgage had sufficient notice of the
first mortgage, although when the first mortgage was exe-
cuted the property was in a different county and the first
mortgage was not recorded in that county. Grady Trading
Co. v. Ireland, 29 Ga. App. 172, 114 S. E- 86.
Cited in Toomer v. Dicker son, 37 Ga. 428; Rowe v.
Spencer, 140 Ga. 540, 79 S. E. 144; Atkinson v. Brunswick
Co., 144 Ga. 694, 87 S. E- 891; Real Estate Co. v. Baldwin,
148 Ga. 821, 98 S. E. 486; Roanoke Banking Co. v. Dunson,
30 Ga. App. 341, 117 S. E. 826.
§ 3260. (§ 2727.) Effect of failure to record.—
Mortgages not recorded within the time required
remain valid as against the mortgagor, hut are
postponed to all other liens created or obtained,
or purchases made prior to the actual record of
the mortgage. If, however, the younger lien is
created by contract, and the party receiving it
has notice of the prior unrecorded mortgage, or
the purchaser has the like notice, then the lien of
the older mortgage shall be held good against
them. Acts 1827, Cobb, 172.
I. In General.
II. Priority and Time in General.
III. Conditional Sales, Crop Mortgages, Attachment .Liens
and Creditors' Bills.
IV. Construed with Bankruptcy Act.
V. Notice.
Cross References.
For full treatment, see 8 Cum. Dig. 668, 9 Enc. Dig. 430;
3 Cum. Dig. 601, 3 Enc. Dig. 104. As to when instruments
requiring record take effect, see § 3320. As to when judg-
ments take effect against property out of county, see §
3322.
I. IN GENERAL.
Meaning of Record. — This section refers to the "actual
record;" and that means the spreading of the mortgage on
the record, not the filing of it with the clerk. Benson v.
Green, 80 Ga. 230, 231, 4 S. E. 851.
Section Not Applicable to Equitable Rights Generally. —
This section makes it the duty of a mortgagee to record
his mortgage, and if he fails, it puts the penalty upon him
that, as to such liens as are cast upon the property by op-
eration of law, he shall be postponed. If the mortgagee
has failed to record, it is a piece of gross negligence, which
he ought to suffer for. If the record is defective, if the
clerk is at fault, the mortgagee has his remedy against
him. At any rate it is the positive provision of the stat-
ute, that a failure to record or a defective record, is not
good against a judgment. Notice has nothing to do with
it, since the judgment was not taken because there was no
notice. It is simply a regulation of law, providing for the
priority of one lien over another, under certain prescribed
and definite circumstances. But it extends only to the
case mentioned in the statute, to-wit: the case of an un-
recorded or defectively recorded, mortgage. It does not ex-
tend to equitable rights generally. They still stand upon
the footing that they are good against the parties and their
privies, except only in the case of a bona fide purchaser,
without notice. Burke v. Anderson, 40 Ga. 535, 541.
Rule in Equity as to Mistakes Not Changed- — This sec-
tion does not change the rule in equity as to the mistakes
in the instruments themselves. Such mistakes are still re-
lievable except as against bona fide purchasers without
notice. Burke v. Anderson, 40 Ga. 535. See also, Phillips
v. Roqumore, 96 Ga. 719, 23 S. F. 855.
Section Refers to Liens Obtained During Life of Mort-
gagor.—See Hawes v. Glover, 126 Ga. 305, 55 S. F. 62.
Mortgage Not Ineffectual as to All Third Persons. — The
failure to record a mortgage on personalty does not render
it ineffectual as to all third persons, but, under this sec-
tion, simply postpones it to "other liens created or ob-
tained, or purchases made prior to the record of the mort-
gage." Rhode Island Locomotive Works v. Empire Lum-
ber Co., 91 Ga. 639, 642, 17 S. F. 1012.
Not Applicable to By-Law Lien.— The validity of a by-
law lien does not depend upon record or registration. The
judgment creditor therefore had no right to complain that
he had no notice of its existence, as in cases under this
section. Owens v. Atlanta Trust & Banking Co., 122 Ga.
521, 522, 50 S. F. 379.
Failure to Record as Discharging Security. — The failure,
under this section, of the creditor to record his mortgage in
this State, within six months after the removal of the prop-
erty therein, was such an act of omission of duty required
by law as increased the risk of the security and exposed
him to greater liability, and therefore, under the well set-
tled rule of law in this State, the security was discharged.
Toomer v. Dickerson, 37 Ga. 428.
Condemnation under Liquor Law. — Under this section, the
rights of an innocent holder of an unrecorded mortgage,
are protected, in case of condemnation under the liquor
law. Shrouder v. Sweat. 148 Ga. 378. 96 S. F. 881; Valdosta
867 ]
§ 3260
MORTGAGES
§ 3260
Co. v. Studstill, 148 Ga. 698, 98 S. E- 262. See also, Whites
v. State, 23 Ga. App. 178, 98 S. E- 171.
II. PRIORITY AND TIME IN GENERAL.
See 8 Cum. Dig. 667, 9 Enc. Dig. 430; 3 Cum. Dig. 601,
3 Enc. Dig. 104.
Priority between Parties.— Generally, as among them-
selves, the priority of mortgage liens is fixed by the date
of the record, in the absence of the elements of notice under
this section. Durden v. Aycock Bros., 13 Ga. App. 420, 79
S. E- 213.
Failure of Second Mortgagee to Record.— By the ruling
in Myers v. Picquet, 61 Ga. 260, failure by the second mort-
gagee to record is as fatal to his claim of priority as actual
notice. This section provides or implies that, if the younger
contract lien was taken without notice, it would prevail
over a prior unrecorded mortgage. But the generality of
this is qualified by the requirement that mortgages shall
be recorded, and by Myers v. Picquet, 61 Ga. 260, to the
effect that if the younger contract lien is itself an un-
recorded mortgage, it must yield to the elder mortgage.
Cottrell v. Merchants Bank, 89 Ga. 508, 518, 15 S. E- 944.
Time of Record. — There is now no time specified for
recordation of mortgages. See the editor's note to § 3257,
under "In General," I.
Same — Failure to Record in Time — Former Rule. — See
Hardaway v. Semmes, 24 Ga. 305; Smith v. Jordan, 25 Ga.
687; McGuire v. Barker, 61 Ga. 339; Janes v. Penny, 76 Ga.
796.
Junior Judgments. — This section requires the junior judg-
ment lien although acquired since the making of the mort-
gage and since the improper record thereof, to take pre-
cedence of the mortgage lien. New England Mortgage
Security Co. v. Ober & Sons Co., 84 Ga. 294, 296, 10 S. E.
625.
The failure to show that the mortgage was recorded be-
fore the judgments were rendered was, of itself, fatal to
the mortgagee's claim of priority, under this section. Hoist
v. Burrus, 79 Ga. Ill, 115, 4 S. E- 108.
Same — Founded on Debt Antecedent to Mortgage. — Un-
der this section, a judgment junior in date to a mortgage
illegally recorded for want of probate, but founded on a
debt antecedent to the date of the mortgage, has priority
of lien to the mortgage, and the purchaser under the fi. fa.
issued from such judgment, will acquire good title against
the mortgage, though both the judgment creditor and the
purchaser had actual notice of the defectively recorded
mortgage. Andrews v. Mathews, 59 Ga. 466.
Same — Notice Immaterial. — "Under this section it has
been held that the lien of a mortgage rests on the con-
tract, and not on the foreclosure, and an unrecorded mort-
gage, senior in date to a judgment lien, will be postponed
thereto, although the judgment creditor have actual notice
of the mortgage and the mortgage be foreclosed before the
judgment was obtained. Andrews v. Tvlathews, 59 Ga. 466;
Richards v. Myers, 63 Ga. 763; New England Co. v. Ober,
84 Ga. 294, 10 S. E- 625. The doctrine established by these
cases is, that a junior lien by operation of law will take
precedence of an older unrecorded mortgage lien, though
actual notice of the latter be had by the holder of the
junior lien. Consequently the attaching creditor, or the
landlord, would take priority over the conditional vendor
who failed to record, the latter having a lien by contract
and being placed by the statute on the same footing as a
mortgagee with respect to the matter of record." Cot-
trell & Sons v. Merchants & Mechanics Bank, 89 Ga. 508,
518, 15 S. E. 944.
Same — Same — Foreclosure Proceedings Started. — The lien
of a judgment rendered before the recording of a prior
mortgage is superior to the lien of the mortgage, under this
section, though at the time of the rendition of the judg-
ment a petition to foreclose the mortgage (on realty) has
been filed and a rule nisi has been issued thereon and
served. In such a case notice, actual or constructive, to
the judgment creditor, at the time when the judgment was
rendered, of the existence of the unrecorded mortgage, is
immaterial. Cambridge Title Co. v. Scaife & Sons Co., 137
Ga. 281, 73 S. E. 492.
III. CONDITIONAL SALES, CROP MORTGAGES, AT-
TACHMENT LIENS AND CREDITORS' BILLS.
Conditional Sales. — This section applies to contracts of
conditional sale. Rhode Island Works v. Empire Lumber
Co., 91 Ga. 639, 17 S. E- 1012; Holland v. Adams, 103 Ga.
612, 30 S. E. 432. See §§ 3318, 3319.
Under § 3319 and this section, the record of a conditional
sale within 30 days is not necessary as against unsecured
creditors of the buyer. In re Brown Wagon Co., 224 Fed
266.
An unrecorded reservation of title was held valid even as
against a subsequent creditor without notice, who had
given credit on the faith of the property and taken a mort-
gage thereon, his mortgage being unrecorded. Cottrell v.
Merchant's Bank, 89 Ga. 508, 15 S. E- 944-
Crop Mortgage — Priority over Older Judgment. — A mort.
gage given under § 3349 to secure money furnished to aid
in making the crop for that year, is superior to the lien
thereon of an older common- law judgment even though
such mortgage was not recorded until after the levy of the
fi. fa. on the matured crop. Franklin v. Callaway, 120 Ga.
382, 47 S. E. 970.
Same — Applying Portion of Mortgaged Property to Ante-
cedent Indebtedness. — Under this section an unrecorded
mortgage on a growing crop, made by a cropper to a third
person for a valuable consideration, can not be defeated by
applying a portion of the mortgaged property to an in-
debtedness existing at the time the mortgage was made,
even though the application be made with the consent of
the tenant and to one without actual notice of the mort-
gage. Fountain v. Fountain, 7 Ga. App. 361, 66 S. E- 1020.
Priority of Lien of Attachment. — Under this section, a
lien of attachment has priority over an unrecorded mort-
gage, where the attachment was levied after commence-
ment of the suit to foreclose the mortgage and prior to
judgment. Hosch v. Smith, 31 Ga. App. 91, 119 S. E- 667.
A creditors' bill which is filed before the mortgage is filed
for record does not deprive the mortgage of priority to an
unsecured debt. Thompson v. Dodds, 95 Ga. 754, 22 S. E-
673.
IV. CONSTRUED WITH BANKRUPTCY ACT.
Mortgage Not Required to Be Recorded. — Under this
section, a mortgage was not a transfer required to be, re-
corded, within Bankr. Act, § 60b. Martin v. Commercial
Nat. Bank, 228 Fed. 651.
Mortgage Not Recorded Until Within Four Months. —
Under this section, a chattel mortgage executed by a
merchant in good faith more than four months prior to
his bankruptcy, when both he and the mortgagee believed
him solvent, and with the express agreement that he should
buy no more goods on credit, is not invalid as preferential,
because not recorded until within the four months, but will
not be given priority over a debt created by the bankrupt
before it was recorded. In re Virgin, 224 Fed. 128.
When the state law recognizes unrecorded chattel mort-
gages as valid between the parties, and merely postpones
them to liens created and purchases made while they re-
main unrecorded under this section, delay of recordation
until within four months before the initiation of bankruptcy
proceedings against the mortgagor does not enable the
trustee to assail such a mortgage as a preference, as of the
date of its recordation, under § 60b of the Bankruptcy Act,
if he represents no lien on the property other than his lien
under § 47a, arising subsequently. Martin v. Commercial
Nat. Bank, 228 Fed. Rep. 651, affirmed. Martin v. Com-
mercial Nat. Bank, 245 U. S. 513, 62 L- Ed. 441, 38 Sup.
Ct. 176.
Mortgages Withheld from Record. — Under this section,
mortgages withheld from record are held to be fraudulent
as to subsequent creditors and postponed to claims of such
creditors in bankruptcy proceeding. Clayton v. Exchange
Bank, 121 Fed. 630.
Recovery of Preferential Payment by Trustee in Bank-
ruptcy.— Under this section, a preferential payment to an
unrecorded mortgage is not recoverable by a trustee in
bankruptcy, where it is made bona fide, where there were
no other lien creditors, and where none of the creditors
extended credit after the date of the mortgage. Dickenson
v. Stults, 120 Ga. 632, 48 S. E. 173.
V. NOTICE.
Cross References. — As to equitable rule as to mistakes
regarding purchaser without notice, see ante, this note,
"In General," I. As to notice of by-law lien by judgment
creditor, see ante, this note, "In General," I. As to ef-
fect of notice on priority between parties, see ante, this
note, "Priority and Time In General," II. As to imma-
teriality of notice as to junior judgments, see ante, this
note, "Priority and Time In General," II.
Where Both Liens Rest on Contract. — "Where both liens
rest on contract, as in this case, actual notice would de-
feat the later lien whether recorded or not." Cottrell &
Sons v. Merchants, etc., Bank, 89 Ga. 508, 518, 15 S. E.
944.
Proceedings to Foreclose as Notice. — Under this section,
proceedings to foreclose an unrecorded mortgage do not
constitute such a lis pendens as would be notice to the
purchaser of the mortgaged property. The notice must be
actual, such as would affect the conscience of the pur-
chaser and charge him with fraud. Douglass v. Mc-
Crackin, 52 Ga. 596.
[ 868 ]
§ 3261
MORTGAGES
§ 3264
Purchaser with Notice from Purchaser Without Notice.
— Under this section, the purchaser, with notice, of land
covered by an unrecorded mortgage, from a purchaser with-
out notice, will be protected. Douglass v. McCrackin, 52
Ga. 596.
Junior Mortgagee with Notice. —Under Acts 1827 (this
section), a junior mortgagee, with notice of the prior lien,
gains no preference by having his mortgage recorded. Neal
v. Kerrs & Hope, 4 Ga. 161.
Purchaser with Seven Years' Possession without Notice.
— A bona fide purchaser for value from mortgagor, with
seven years' possession of land, will hold the land free
from the encumbrance of a mortgage not recorded in the
time prescribed by law, the purchaser having neither ac-
tual nor constructive notice of the mortgage, under this
section. Parker v. Jones, 57 Ga. 204.
Disregard of Notice. — A security deed not properly re-
corded is subsequent to a lien by operation of law regard-
less of actual notice, under this section. In re Hammett.
286 Fed. 392.
Burden of Showing Notice. — Under this section, the
burden is on the holder of the senior unrecorded mortgage
to show clearly actual notice of the mortgage to the mort-
gagees. Lewis v. Jones, 232 Fed. IOC.
Evidence to Show Notice. — The evidence in this case was
not sufficient to show actual knowledge by the junior mort-
gagees of a prior unrecorded mortgage, so as to give the
latter mortgage priority under this section. Lewis v. Jones.
232 Fed. 100.
Applied in Albanv Nat. Bank v. Georgia Banking Co..
137 Ga. 776, 74 S. E. 267; North v. Goebel, 138 Ga. 739, 76
S. K. 46; Real Estate Bank, etc., Co. v. Baldwin L,oc.
Works, 148 Ga. 821, 98 S. E- 486.
§ 3261. (§ 2728.) How admitted in evidence-
Mortgages when duly executed and recorded
shall be admitted in evidence under the same
rules as registered deeds.
See § 3257 and notes thereto. See also, 8 Cum. Dig. 666;
9 Cum. Dig. 931, 11 Enc. Dig. 120.
Seal Not Necessary. — Where the execution of a deed or
mortgage has been admitted or proved, it is not a ground
to exclude it from evidence that it is not under seal. Viz-
ard v. Moody, 119 Ga. 918, 47 S. E- 348.
Record in Another State. — The recording of a mortgage
in the proper office in another state does not make a cer-
tified copy of it admissible in evidence, or dispense with
proof of the execution of the original. Pepper v. James,
7 Ga. App. 518, 67 S. E. 218.
Whether or not a mortgage executed in Alabama con-
veyed title, and whether or not it would be enforced in
this state as title, the fact that such a mortgage was
recorded in Alabama was no proof of its execution, on a
trial in Georgia, and in the absence of other proof of exe-
cution, it was properly rejected from evidence. Baskin v.
Vernon, 74 Ga. 370.
Evidence of Record in Another County than Mortgagor's
Residence. — Evidence that a mortgage on personal prop-
erty was filed for record and recorded in Elbert County was
not sufficient to dispense with proof of the execution of the
mortgage, where it appeared without contradiction that the
mortgagor resided in Wilkes County. Williams v. State,
13 Ga. App. 338, 79 S. E. 207. See notes to § 3259.
Bill of Sale. — When recorded, a bill of sale is admissible
in evidence under the same rules as govern the admission
of registered mortgages under this section. Anderson v.
Leverette, 116 Ga. 732, 42 S. E. 1026.
Cited in Winn v. Herring, etc., Co., 33 Ga. App. 419, 126
S. E. 879.
§ 3262. (§ 2729.) Defective record. — A mort-
gage recorded in an improper office, or without
due attestation or probate, or so defectively
recorded as not to give notice to a prudent in-
quirer, shall not be held notice to subsequent
bona fide purchasers or younger liens. A mere
formal mistake in the record shall not vitiate it.
See notes to §§ 3257, 3259, 3260. See 8 Cum. Dig. 668, 9
Enc. Dig. 431; 9 Cum. Dig. 934, 11 Enc. Dig. 124.
Effect of Section as to Younger Liens. — This section
makes it the duty of a mortgagee to see that his mortgage
is duly attested for record; and if he fails in this regard,
then his mortgage is postponed to younger liens. The
question is not an open one; for it has been distinctly de-
cided that a judgment junior in date to a mortgage il-
legally recorded for want of probate, but founded on a
debt antecedent to the date of the mortgage, has priority
of lien to the mortgage. Andrews v. Mathews, 59 Ga. 4oo;
Richards v. Myers, 63 Ga. 762; New England, etc., Co. v.
Ober, 84 Ga. 294, 10 S. E- 625; Cottrell v. Merchants &
Mechanics Bank, 89 Ga. 508, 15 S. E. 944; Southern Iron &
Equipment Co. v. Voyles, 138 Ga. 258, 264, 75 S. E. 248.
Defective Attestation or Probate. — The record of a mort-
gage defectively attested or probated amounts to no record
of it. If the mortgage afterwards be attested so as to
entitle it to record, it must be recorded anew in order for
it to be constructive notice under this section. The entry
of the name of the new attesting official upon the old record
is improper and will not suffice. Donalson v. Thomason,
137 Ga. 848, 74 S. E. 762.
The record of a mortgage, made without due attestation
or probate, will not be held to be constructive notice to a
subsequent bona fide purchaser under this section. Donal-
son v. Thomason, 137 Ga. 848, 74 S. E- 762; Winn v. Her-
ring, etc., Co., 33 Ga. App. 419, 126 S. E. 879.
Although a mortgage on realty may have been properly
attested by two witnesses, yet where it is so imperfectly
recorded as to show attestation by one witness only, such
record is no record and is no notice to third persons with-
out notice, under this section. Brown v. Aaron, 20 Ga. App.
592, 593, 93 S. E. 258.
Same — Security Deed. — The record of a security deed on
insufficient attestation or probate is equal to no record at
all, under this section. In re Hammett, 286 Fed. 392.
Same — Attestation by Officer of Corporation Mortgagee.
— A mortgage attested by a notary public, who is an offi-
cer of the corporation to which it is given, is not properly
executed, and therefore not admissible for record ; and a
record of such a mortgage is not constructive notice to
persons dealing with the mortgagor. Barrow v. Tris
Napier Co., 16 Ga. App. 309, 85 S. E. 267.
Same — Attestation by Mortgagee's Attorney. — An affi-
davit, probating a mortgage, taken before the attorney of
the mortgagee, who is a Notary Public, is not a legal
affidavit, and a mortgage recorded on such probate is not
legally recorded. Nichols v. Hampton, 46 Ga. 253.
Mortgage Filed with Superior Court Clerk. — The lien of
a mortgage filed in the office of the clerk of the superior
court of the county where the land lies, though not prop-
erly recorded, is superior to that of common-law executions
entered on the docket after the filing of the mortgage.
Merrick v. Taylor, 14 Ga. App. 81, 80 S. E. 343.
Protection of Purchaser — Payment of Purchase- Money.
— Actual payment of the purchase-money, or what is equiva-
lent thereto, before notice of a defectively recorded mortgage,
is necessary 1o the protection of a subsequent pur-
chaser under this section. If there has been a partial pay-
ment (or what is equivalent) of the purchase-money be-
fore notice, the purchaser will be entitled to protection to
that extent; but appropriate equitable pleadings are nec-
essary for this purpose. Donalson v. Thomason, 137 Ga.
848, 74 S. E. 762.
Same — Purchaser Giving Notes. — Where a purchaser buys
land without notice of any mortgage thereon, and gives
his negotiable notes therefor, which are negotiated by the
payee, so as to cut off any defense, before the purchaser
receives notice of the prior lien, and the price paid is a
full and fair consideration, such person will be deemed to
be a bona fide purchaser, and as such entitled to protec-
tion, under this section. Donalson v. Thomason, 137 Ga.
848, 74 S. E- 762.
Conditional Sales. — The same rules govern the priority
of conditional bills of sale, as affected by registration un-
der this section, as govern the registration of mortgages.
Phillips, etc., Co. v. Drake, 13 Ga. App. 764, 765, 79 S. E-
952.
§ 3263. (§ 2730.) Record not in time.— The due
record of a mortgage, though not made in the
time prescribed, is notice from the time of record
to all the world.
See "Editor's Note" under § 3257.
§ 3264. (§ 2731.) Probate for record.— All the
rules prescribed for the probate of deeds to land,
where the witnesses are dead, insane, or removed
from the State, or to the acknowledgment before
or attestation by consuls or commissioners, shall
apply to the probate of mortgages.
Cross References.— See § 3259 and notes thereto. As to
when instruments requiring record take effect, see § 3320.
As to authorization of record of a deed executed out of
cfofp sec s 4203.
Cited in In re Marshall Co., 291 Fed. 268.
869 ]
§ 3265
MORTGAGES
§ 3270
§ 3265. (§ 2732.) Tacking.— There shall be no
tacking of mortgages in this State.
§ 3266. (§ 2733.) Mortgage to sureties.— Mort-
gages may be taken by sureties and guarantees
to indemnify them against loss.
As to foreclosure of mortgage by surety or indorser, see
§ 3555. As to surety compelling co-surety to transfer
mortgage to him, see § 3566.
The mere misdescription of the bond in a mortgage to a
surety executed under this section will not have the effect
to render the mortgage invalid as a lien upon the prop-
erty described, either as to the mortgagor himself or his
vendees. Emerson v. Knight, 130 Ga. 100, 60 S. E. 255.
§ 3267. (§ 2734.) Redemption in ten years.— li
the possession of the property is given to the
mortgagee, the mortgagor may redeem at any
time within ten years from the last recognition
by the mortgagee of such right of redemption.
As to when actions on specialties should be brought, see
§ 4359.
Object of Section — Deductions from Debt. — It may be
unusual for a mortgagee in Georgia to enjoy the posses-
sion; but this section anticipates that it may occur, and
takes care to' prescribe the time within which the mort-
gagor may redeem. Doubtless, in redeeming, the debtor
would be entitled to proper deductions from the debt on
account of the profits of the land realized by the creditor
while in possession. Biggers v. Bird, 55 Ga. 650, 653.
Twenty years' possession of the mortgaged property by
the mortgagee, under the mortgage, will, prima facie, bar
the mortgagor's right to redeem, and this is true whether
the mortgage is upon real estate or personal property.
Morgan v. Morgan, 10 Ga. 297. See also, Davidson v.
Lawrence, 49 Ga. 336.
Presumption of Sale of Equity of Redemption. — Under
this section, a mortgage will ripen into title if the mort-
gagee remains in possession for ten years without recogni-
tion of any right in the mortgagor to redeem. After such
possession the law will presume a sale of the equity of
redemption, either under foreclosure proceedings or by the
act of the parties. Horton v. Murden, 117 Ga. 72, 43 S. E.
786.
Property Sold at Foreclosure Sale.— Neither the defend-
ant in fi. fa. nor any person representing him has a right
to redeem property sold at a mortgage foreclosure sale.
Suttles v. Sewell, 105 Ga. 129, 31 S. E. 41.
Even if the right of redemption by a mortgagor, or his
privies in estate, exists in this State, as to realty sold un-
der a foreclosure in equity to which the mortgagor or his
privy was not a party, the second mortgagees of this case,
on account of the lapse of time and because of their laches,
are barred from exercising such alleged right. Southern
R. Co. v. Lancaster, 149 Ga. 434, 100 S. E. 380.
Mortgagor Acquiescing in Acts of Ownership. — The mort-
gagor can not redeem where he stands by and acquiesces
in acts of ownership and improvement. DeLaigle v. Den-
ham, 65 Ga. 482.
Grantee in Possession Under Security Deed. — Where the
grantee in a security deed enters into possession of the
property conveyed by such deed, the right of the grantor
to redeem by the payment of the debt is never barred s:j
long as the grantee recognizes a right to redeem, and equity
would by analogy decree that the right to redeem would ir
no event be lost until after the expiration of ten years from
the date of the last recognition by the grantee of the right
to redeem under this section. Gunter v. Smith, 113 Ga.
18. 38 S. E. 374. Cited in Jones v. Laramore, 149 Ga. 825,
829, 102 S. E. 526; Laramore v. Jones, 157 Ga. 366, 369, 121
S. E. 411.
Same — By Virtue of Sheriff's Deed. — The grantor in a
security deed, or borrower, has at least ten years in which
to redeem the land, if the grantee is in possession; but if
the grantee is in possession under a sheriff's deed made in
pursuance of an illegal sale, .such a deed, being color of
title, may bar the grantor in seven years, if acquiesced in
by him for that length of time. An action brought to set
aside the sale in six years is not too late. Benedict v.
Gammon Theological Seminary, 122 Ga. 412, 50 S. E. 162.
Working Out Debt. — The old English mode of allowing h
mortgagee to enter and work out a debt does not exist in
this state. Wofford v. Wyly, 72 Ga. 863.
Cited in Jones v. Laramore, 149 Ga. 825, 102 S. E. 526.
§ 3268. (§ 2735.) Debt barred, mortgage may
still be foreclosed. — That the note or other evi-
dence of debt is barred does not prevent the
creditor thereafter availing himself of the mort-
gage or other security.
History — Construction of Words "Or Other Security." —
This section appears in the code of 1895 for the first time,
and is codified from the decision in Elkins v. Edwards, 8
Ga. 324, and from that in the case of Reid v. Flippen, 47
Ga. 273, the latter case being to the effect that mere de-
lay by a creditor to sue the principal debtor until the bar
of the statute of limitations has attached as between them
does not discharge the security if he has been sued in
time. The words "or other security" will therefore be
read in the light of the decisions from which they are codi-
fied, and will be presumed to go no farther than the su-
preme court has hitherto gone, unless a different construc-
tion is required. The section can be applied in its entirety.
Duke v. Story, 116 Ga. 388, 390, 42 S. E. 722.
Security Deed Not Referring to Debt. — Under this sec-
tion, a security deed which does not refer in any way to
the debt to secure which it was given, or furnish any evi-
dence of its existence, can not be foreclosed as an equit-
able mortgage, and a money judgment obtained thereon, if
the obligation secured by the deed is barred by the stat-
ute of limitations. Duke v. Story, 116 Ga. 388, 42 S. E. 722.
Transfer of Insurance Policy as Security. — Under this
section where a policy of insurance was transferred as
security for a debt, the fact that the remedy on the latter
was barred did not destroy the debt itself, nor did it pre-
vent the holder of the collateral from enforcing her rights
thereunder. Conway v. Caswell, 121 Ga. 254, 48 S. E. 956.
Bar of action on account, was applied though the account
was for goods sold under sealed contract retaining title in
seller until payment. Hinson v. Davis, 30 Ga. App. 356, 118
S. E. 481.
Purchase-Money Notes Barred. — Under this section the
fact, that notes given by a vendee to a vendor for the pur-
chase-money of land have become barred does not extinguish
the title of the vendor; and the latter can, although the
purchase -money notes are barred, assert his title by claim
to the land, when advertised for sale by the administrator
of the vendee, under an order of the court of ordinary^ as
the property of the vendee, until the purchase-money is
paid in full. Myers v. Warrenfells, 153 Ga. 648, 113 S. E.
180.
Enforcing Equitable Lien Arising from Absolute Con-
veyance.—See Story v. Davis, 110 Ga. 65, 35 S. E. 314.
Cited in Harris v. Black, 143 Ga. 504, 85 S. E. 742.
§ 3269. (§ 2736.) Purchaser from mortgagor,
when bound by foreclosure. — A purchaser from
a mortgagor after proceedings to foreclose the
mortgage have been begun will be concluded by
the judgment of foreclosure.
See 8 Cum. Dig. 682.
History. — This section was codified from the decision of
Stokes v. Maxwell, 59 Ga. 78, which held that the pur-
chaser of land subject to the lien of the mortgage, who buys
after the mortgagor has been sued and served with the
rule nisi to foreclose the mortgage, will be concluded by
the judgment of foreclosure, although the mortgagor was
not served until after the term to which the rule was re-
turnable.
Prior to Commencement of Proceedings. — In Williams \T.
Terrell, 54 Ga. 462, it was held that one who purchases
mortgaged property, prior to the commencement of statu-
tory proceedings to foreclose, and who is not a party to
such proceedings, is not bound by the judgment of fore-
closure, and may, when the mortgage fi. fa. is levied, go
behind the judgment and set up the mortgage was barred
by the statute of limitations at the date of the filing of the
petition to foreclose. Washington Exchange Bank v. Hol-
land & Co.. 121 Ga. 305, 307, 48 S. E. 912.
§ 3270. (§ 2737.) Cancellation of mortgage. —
Any mortgagor in this State, who may have paid
off his mortgage, may present the same, together
with the order of the mortgagee or transferee di-
recting that the mortgage be canceled and record
the order across the face of the record, to the
clerk of the superior court of the county or coun-
ties in which the same is recorded, and such
.clerk shall write across the face of such record
the word "satisfied," and the date of such entry,
[870]
§ 3271
MORTGAGES
§ 3274
and sign his name thereto officially. Acts 1884-5,
p. 129.
Cross References. — For full treatment of discharge and
payment of mortgage, see 8 Cum. Dig. 689, 9 Fnc. Dig.
462. As to cancellation of deeds in cases where property is
conveyed to secure a debt, see § 3309. As to how satisfac-
tion of bond for title is entered of record, see § 4215.
No Necessity for Seal. — There is no requirement that a
cancellation of a mortgage should be under seal. Sims v.
Scheussler, 5 Ga. App. 850, 64 S. 15. 99.
Forged Order to Cancel. — When a mortgagor presents to
a. clerk an original mortgage of record and an order to the
clerk, purporting to have been signed by the mortgagee,
to cancel such mortgage on the record as provided in this
section, and the clerk has no knowledge of the invalidity
of the order, nor any reason to suspect the same, the act
of recording the order does not render the clerk and the
sureties on his official bond liable to a person injured by
such entry, notwithstanding the order was forged. Luther
v. Banks, 111 Ga. 374, 36 S. F. 626.
Forged Entry of Satisfaction. — Where the mortgagor
fraudulently substituted a copy for the original, and forged
an entry of satisfaction thereon and had it cancelled of
record, it did not affect the mortgagee, even as to a bona
tide purchaser. Luther v. Clay, 100 Ga. 236, 28 S. F- 46.
Where the mortgagee takes new security and enters upon
the note and mortgage the word "satisfied," and surren-
ders 4hem to the mortgagee, and the mortgage is duly-
canceled on the record, this amounts to an extinguishment
of the mortgage, and the new security is inferior to an in-
tervening mortgage on the same property, of which the
first mortgagee had notice at the time he canceled his
mortgage and accepted the new security. Farkas v. Third
Nat. Bank, 133 Ga. 755, 66 S. F. 926.
Extinguishment of Power of Sale. — While a power of sale
in a mortgage is extinguished by the payment of the debt
the mortgage was given to secure, if the mortgagor failed
to have the satisfaction of the debt entered of record as
provided for in this section, and a sale was thereafter had
under the power, one who purchased in good faith and for
value at such sale, without notice of the fact of the satis-
faction of the debt, will be protected in his title. Garrett
v. Crawford, 128 Ga. 519, 57 S. F. 792.
Cancellation Under Mistake of Fact. — See Woodside v.
Lippold, 113 Ga. 877, 39 S. F. 400.
§ 3271. (§ 2738.) Clerk's fees.— For such serv-
ices the clerk shall receive fifteen cents, to be
paid by the mortgagor.
As to salary of clerk and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-
tion or more, see § 6017 (5) ; counties having between 44,»
000 and 60,000 and from 70,000 to 150,000 population, see §
6017 (12); counties of from 60,000 to 70,000 population, see
§ 6017 (25).
§ 3272. (§ 2739.) Debts due by installments.—
If the mortgage is given to secure several debts
falling due at different times, the mortgagee may
foreclose when the first becomes due, and the
court will control the surplus so as to protect
the lien created for the debts not due.
Cross References.— See § 3285. As to when proceeds of
sale of mortgaged property may be retained by court, see
§ 3285. As to proceedings as to levy and sale, see § 3288.
As to debts due by instalments in trust deeds to secure
debts, see § 3317.
Former Rule as to Equitable Relief. — Formerly, resort
could be had to equity for a provisional judgment, when one
instalment of a mortgage debt was due and unpaid. Jones
v. Lawrence, 18 Ga. 277; Lawrence v. Jones, 20 Ga. 342.
Present Rule as to Equitable Relief. — Under this section
where partial payments were made on the first two in-
stalments, but nothing was paid on the third, and the pur-
chaser was wholly unable to pay for the land, the vendor
might, by equitable proceedings, obtain judgment for the
indebtedness, and a decree ordering the sale of the land
and providing that, if, after paying the instalments due,
there should remain a surplus, the sheriff should return it
to satisfy the instalment thereafter to become due. If the
debtor be insolvent, this could be done as well where title
was retained as security as where a mortgage is taken for
that purpose. Littleton v. Spell, 77 Ga. 227, 2 S. E. 935.
Only One Foreclosure. — As a general rule, no decree of
foreclosure of a common-law mortgage (where the title was
conveyed as security) could be made, unless all the parties
entitled to the mortgage money were before the court. In
this State there can be but one foreclosure of a mortgage.
Strickland v. Lowry Nat. Bank, 140 Ga. 653, 79 S. F. 539.
The policy of the law is against repeated foreclosures oi
the same mortgage, and in harmony with this policy, this
provision is made for a single foreclosure where the debt
secured thereby falls due in installments. Georgia Realty
Co. v. Bank, 19 Ga. App. 219, 227, 91 S. E. 267.
Notes Payable in Specifics. — It makes no difference, un-
der this section, that notes, to secure which the mortgage
was given, are payable in specifics. Hatcher v. Chancery,
71 Ga. 689.
Mortgage by Two Tenants in Common. — When a mort-
gage was executed by two tenants in common, it may be
foreclosed against one as to his interest. Baker v. Shep-
herd, 37 Ga. 12.
Where two give a lien on their separate interests in the
same property to a common creditor, the mortgage may be
foreclosed separately against each. Baker v. Shephard, 30
Ga. 706.
Mortgage to Secure Note for Principal and Separate
Notes for Interest. — A mortgage to secure a promissory
note for a stated amount of principal, and separate notes
maturing at different times for the interest to accrue
thereon, can not, in advance of the maturity of the principal
note, unless specially so stipulated, be absolutely fore-
closed for the full amount of the principal and the ma-
tured interest notes, and the collection thereof summarily
enforced by a process amounting to no more than an ordi-
nary mortgage execution. In such a case the remedy pro-
vided by this section is available. Cumberland Island Co.
v. Bunkley, 108 Ga. 756, 33 S. F. 183.
Security Notes Passed to Several Holders. — A mortgage
having been made to secure several negotiable notes, and
the notes having been passed to several different holders,
and one of the holders having obtained a general judgment,
and another having foreclosed the mortgage in the name
of the mortgagee for his use, a sale of the premises under
the general judgment passed the title free from the mort-
gage lien. The notes not covered by either judgment can
not be enforced against the land, but are thrown, in equity,
upon the fund produced! by the sale, for their pro rata
share thereof. Smith v. Bowne, 60 Ga. 485.
Execution on Aggregate Amount. — If the mortgage debt
be payable by instalments, some of which are overdue and
others not due, the foreclosure may, under this section,
embrace the whole, and execution may issue and be levied
for the aggregate amount, the facts as to the maturity of
a part and non-maturity of the residue being stated in the
affidavit of foreclosure. Paul v. Roney, 94 Ga. 133, 21 S.
E. 283.
Court's Control over Surplus.— Under this section, the
court will control the surplus so as to protect the lien cre-
ated for the debts or installments not due. The court may
order the part which is in judgment to be paid, and the
balance to be invested to meet the indebtedness still un-
paid. Hatcher v. Chancery, 71 Ga. 689. See also, McCur-
rey v. Pitner, 159 Ga. 807, 126 S. F. 781.
Cited in Lathrop v. Brown, 65 Ga. 312.
§ 3273. (§ 2740.) Several distinct mortgages. —
So, if there be several mortgages of equal date or
embraced in the same mortgage, and one fore-
closes, the court will control the proceeds of the
sale to distribute to the several mortgagees ac-
cording to their claims.
Evidence Showing Single Mortgage in Fact Several. —
Where a single mortgage is taken for two separate amounts
due to two distinct parties, in legal effect it is equivalent
to two mortgages taken contemporaneously upon the same
property; and upon a suit by one of the parties secured
thereunder against the other, it is permissible to show that
the mortgage was collected as to only one of the amounts
secured, and not as to the other. Bass v. West Point
Wholesale Grocery Co., 5 Ga. App. 746, 62 S. E. 1004.
Applied in Russell v. Carr, 38 Ga. 459.
§ 3274. (§ 2741.) Claiming proceeds of sales. —
Property mortgaged may be sold under other
process, subject to the lien of the mortgage. If
the mortgage is foreclosed, the mortgagee
may place his execution in the hands of the of-
ficer of the law making the sale, and cause the
title unencumbered to be sold, and claim the
proceeds according to the date of his lien.
See 8 Cum. Dig. 671, 9 Enc. Dig. 437. As to disposition
of proceeds of sale of mortgaged property, see § 3284.
Option of Holder of Mortgage. — Under this section the
[871]
§ 3274
MORTGAGES ON REAL ESTATE, HOW FORECLOSED
§ 3276
holder of the mortgage has the option to place his mort-
gage fi. fa. in the hands of the officer, cause the title unin-
cumbered to be sold, and claim the proceeds, according to
the date of his lien, or else he may simply allow the sale
to proceed subject to the lien of his mortgage. Kirby v.
Reese, 69 Ga. 452. See also, Toney v. Puckett, 18 Ga. App.
514, 89 S. E. 1102.
This section dees not apply to a case of two mortgages,
unless both mortgages are given by the same person on
the same property. Pasley v. Beland, 111 Ga. 828, 36 S. E-
296; Crawford Bank v. Britt- High tower Co., 17 Ga. App.
804, 88 S. E- 691.
Sale of Equity of Redemption. — "It has been held that
the equity of redemption in mortgaged property in this
state is subject to levy and sale. Winter v. Garrard, 7 Ga.
183; Harwell v. Fitts, 20 Ga. 723; Tarver v. Ellison, 57 G i.
55." Sims v. Jones, 158 Ga. 384, 392, 123 S. E. 614.
Construing together this section, §§ 4801 and 4808, when
the cost fi. fa. was levied upon land to the decedent in
order to satisfy that fi. fa., only the equity of redemption
could be sold. Johnson v. Goins, 157 Ga. 430, 433, 121 S. E-
830.
Same — Tax Sale. — Where property is sold under a tax fi.
fa., upon which there is a pre-existing mortgage, only the
equity of redemption can be sold. Doane v. Chittenden, 25
Ga. 103, 108; Johnson v. Goins, 157 Ga. 430, 433, 121 S. E.
830.
Same — Sale Under Junior General Judgment. — Where it
is undisputed that before and at the time of sale of prop-
erty the attorney for the mortgagee gave all prospective
and actual bidders upon the property, which was being sold
under a junior general judgment, public notice that the
property was being sold subject to the lien of a senior
mortgage fi. fa. which he held, the purchaser at the sale
acquired only the equity of redemption held by the defend-
ant in the junior fi. fa. Garrett v. Fields, 22 Ga. App. 381,
95 S. E. 1014.
Effect of Sale of Unrecorded Senior Mortgage. — If a
senior unrecorded mortgage is foreclosed, and the mort-
gagees become the purchasers at the sale thereunder, they
obtained only the equity of redemption under a junior re-
corded mortgage, and the holder of such junior mortgage
could thereafter foreclose it and subject the property to
levy and sale thereunder. Nor is he compelled to look to
the proceeds of the sale under the senior mortgage fi. fa.
Kelly v. Shepherd, 79 Ga. 706, 4 S. E- 880.
Rights of Holder of Unforeclosed Mortgage. — An unfore-
closed mortgage can not be the basis of a claim for money
on a rule to distribute, unless it be shown that the holder
of the mortgage would otherwise be remediless. DeVaughn
v. Byrom, 110 Ga. 904, 36 S. E- 267.
Under this section the holder of an unforeclosed mort-
gage can not claim at law the balance of a fund arising
from the sale of the property covered by the mortgage, after
paying the judgment under which it was sold, and which
was older than the mortgage, but he can make such a
claim in equity, and this could be done on a money rule,
with proper allegations. Baker v. Gladden, 72 Ga. 469.
Under this section the holder of an unforeclosed mort-
gage on property brought to sale under a general judg-
ment junior to the mortgage, could not, without the con-
sent of the mortgagor and the plaintiff in execution, cause
the entire estate to be sold and afterwards claim the fund
in the sheriff's hands. Hynds Mfg. Co. v. Oglesby &
Meador Grocery Co., 93 Ga. 542, 21 S. E. 63.
Illegal Foreclosure.— A fi. fa. based on an illegal fore-
closure, has no standing in court, and can not take pro-
ceeds of the sale, under this section. Rich v. Colquitt, 65
Ga. 115.
Lien of Mortgage Superior to Subsequent Judgment. — Tn
this case it was held that the lien of a mortgage was su-
perior to a subsequent judgment, in a distribution of pro
ceeds of the sale under this section. Ragan v. Coley, 4 Ga.
App. 421, 61 S. E. 862.
Lien of Older Judgments Divested by Sale on Fore-
closure.— The sale of property under an execution issued
upon the foreclosure of a mortgage thereon, will divest the
lien of a judgment against the mortgagor of older date
than such mortgage, and will pass to the purchaser at
such sale the title to the mortgaged property freed from the
encumbrance of the lien imposed by the older judgment.
Brunswick, etc., Co. v. Nat'l Bk., 102 Ga. 766, 29 S. E. 688.
Choses in action in the hands of the receiver were legal
assets, and as the mortgagee had obtained no decree on
his bill, the common law judgments were entitled to the
fund. Dowell v. Dickie & Co., 55 Ga. 177.
Setting Up Outstanding Title in Third Person. — One
claiming property under levy can not defeat the plaintiff
in execution by setting up outstanding title in a third per-
[8
son; and it is equally true that one claiming funds by in-
tervention in a rule to distribute money, derived from the
sale of property under execution, can not support such a
claim by showing that title to the property was vested in
some person other than the defendant in execution. Craw-
ford County Bank v. Brott-Hightower Co., 17 Ga. App.
804, 88 S. E. 691.
Equitable Pleadings to Foreclose as Amendment to Claim.
— The claimant of property levied on under a judgment
can not, by equitable pleadings offered as an amendment
to the claim, foreclose a mortgage against the defendant
in execution and thereupon obtain a decree for the satis-
faction of such mortgage out of the proceeds of the prop-
erty when sold under this section. Cabot v. Armstrong,.
100 Ga. 438, 28 S. E- 123.
Cited in Smith v. Bowne, 60 Ga. 485; Roberts v. Hinson,
77 Ga. 589, 2 S. E. 752.
§ 3275. (§ 2742.) Purchasers giving bond to
respond to lien. — Purchasers at public sales of
property subject to the lien of a mortgage shall
give bond and security in double the value there-
of to the officer making the sale, conditioned not
to remove the property out of the State, and for
its forthcoming to answer to the said lien: Pro-
vided, the mortgagee, or his agent, files with the
officer, prior to the sale, an affidavit of the
amount due on such mortgage, and that he appre-
hends the loss of said property unless such bond
be taken. On failure to give such bond, the
property shall be resold at the risk of the pur-
chaser. Act 1830, Cobb, 513.
As to purchaser's liability at public sale, see § 6071.
A purchaser is not liable on a bond to one having lien
from cestui que trust signed individually, where the claim-
ant had no equitable claim on the proceeds. Miller v. Red-
wine, 75 Ga. 130.
Cited in Calloway v. People's Bank, 54 Ga. 441.
ARTICLE 2.
Mortgages on Real Estate, How Foreclosed.
SECTION l.
Application to Foreclose; When, Where, and
How Made, and Proceedings Thereon.
§ 3276. (§ 2743.) Foreclosure of mortgage on
realty. — Mortgages on real estate in Georgia may
be foreclosed in the following manner, to wit:
Any person applying and • entitled to foreclose
such mortgage shall, by himself or his.
attorney, petition to the superior court of
the county wherein the mortgaged prop-
erty may be, which petition shall contain a state-
ment of the case, the amount of the petitioner's
demand, and a description of the property mort-
gaged; whereupon the court shall grant a rule
directing the principal, interest, and costs to be
paid into court on or before the first day of the
next term immediately succeeding the one at
which such rule is granted; which rule shall be
published twice a month for two months, or
served on the mortgagor, or his special agent or
attorney, at least thirty days previous to the time
at which the money is directed to be paid into
court, as aforesaid: Provided, that where the
land covered by mortgage consists of a single
tract of land divided by a county line or county
lines, such mortgage may be foreclosed on the
entire tract in either of the counties in which part
of it lies: Provided further, if the mortgagor
resides upon the land, the mortgage shall be
foreclosed in the county of his residence. Act
2]
§ 3276
MORTGAGES ON REAL ESTATE, HOW FORECLOSED
§ 3276
1799, Cobb, 570; Act 1829, Cobb, 572; Act 1830,
Cobb, 572; Acts 1878-9, p. 50; 1920, p. 78.'
I. In General.
II. Pleading and Practice Generally.
III. Publication, Service and Return.
Cross References.
For full treatment, see 8 Cum. Dig. 673, 9 Enc. Dig. 441.
As to foreclosure by building and loan associations, see §
2882. As to supplemental provisions as to service by pub-
lication, see §§ 5554, 5555.
I. IN GENERAL.
Editor's Note. — The original sources of this section are
the following acts of legislature: Act 1799, Cobb, 570; Act
1829, Cobb, 572; Act 1836, Cobb 572. The section first ap-
peared in codified form as § 3866 of the Code of 1863, with-
out the two provisos, which were contributed by the Acts
of 1878-9, p. 50. The length of time of publication and for
personal service, which now reads, "twice a month for two
months" and "thirty days" appeared in prior codes as
"once a month for four months" and "three months." This
change was wrought by the Acts 1920, p. 78. As to effect
of § 5556 on this section, see post, this note, Swift v. Van-
Dyke, 98 Ga. 725, under "Publication, Service and Return,"
III.
Foreclosure Consequence of Power to Mortgage -From
the existence of the power to mortgage, and its due exer-
cise, the right to foreclose under this section on a breach
of the condition is a necessary legal consequence. Adams
v. Mayor and Council, 59 Ga. 765.
Locus of Land Gives Jurisdiction. — Under this section the
locus of the land gives jurisdiction, and the only judgment
the court can pass is that the lands shall be sold to satisfy
the debt. No other property can be levied on. DeGive v.
Lewis, 52 Ga. 588, 590. And where judgment is granted in
the county of the. mortgagor's residence, which is not where
the land is situated, the claimant of the land under a mort-
gage fi. fa. may raise the objection on the trial of the claim.
Hackenhull v. Westbrook, 53 Ga. 285.
Jurisdiction of City Court — See 8 Cum. Dig. 675.
Lack of Title in Mortgagor.— Where the mortgagor of
land has no title to it, but only a bargain for it, with part
payment of the purchase-money, the mortgagee can not
have the aid of a court of equity to foreclose his mortgage
as against the holder of the title, without offering to pay
the remainder of the purchase-money. Crummey v. Me-
chanics', etc., Bank, 30 Ga. 670.
Attorney's Liens— Venue.— A proceeding to foreclose an
attorney's lien upon real property is to be brought as is a
proceeding to foreclose a mortgage upon property of like
kind; and hence the venue of such a proceeding is the
county wherein the land lies as provided for in this sec-
tion. McCalla v. Nichols, 102 Ga. 28, 28 S. E. 988.
Same— Process.— An attorney's lien on land is foreclosed
hy petition and rule issued by the court as in cases of
mortgage foreclosure on land under this section, and pro-
cess is not issued by a clerk as in ordinary cases. Moss v
Strickland, 138 Ga. 539, 75 S. E. 622.
Same— Time of Rendering Judgment. — When a petition
for foreclosure of an attorney's lien was filed in the super-
ior court during a regular term thereof, under this sec-
tion, and ^ thereafter the defendant acknowledged due and
legal service of such proceedings, the court had jurisdic-
tion to render a judgment of foreclosure at its next suc-
ceeding term. Ray v. Hixon, 107 Ga. 768, 33 S. E- 692.
Applied in Lankford v. Peterson, 20 Ga. App 147 92 S
E. 764.
Cited in Allen v. Glenn, 87 Ga. 414, 416, 13 S. E- 565;
Michelson v. Cunningham, 96 Ga. 601, 24 S. E. 144.
II. PLEADING AND PRACTISE GENERALLY.
See 8 Cum. Dig. 678, 9 Enc. Dig. 445.
Proceeding Statutory.— The proceeding to foreclose un-
der this section was statutory, and not an equitable ac-
tion. Smith v. First Nat. Bank, 143 Ga. 543, 85 S. E. 696.
Foreclosure as "Suit" — Within Statute of Limitations. —
The foreclosure under this section, is a suit, within the
contemplation of the Act of March 16th, 1869; and if the
instrument was executed before June 1st, 1865, and pro-
ceedings to foreclose were not instituted until after Jan-
uary 1st, 1870, they are barred by the provisions of said
Act. George v. Gardner, 49 Ga. 441.
In seeking to foreclose a mortgage which on its face ap-
pears to be barred by the statute of limitations, which it
is sought to avoid the bar by reason of z. new promise of
partial payment, such relieving facts must be alleged with
sufficient certainty under this section to enable the defend-
lint to meet the same by plea as well as proof. Jesup v.
Epping, 66 Ga. 334.
Pendency of Foreclosure Proceedings No Hindrance to
Action on Security. — The pendency of proceedings to fore-
close a mortgage under this section, is no hindrance to a
regular action upon the notes to secure which the mort-
gage was given. Juchter v. Boehm, etc., Co., 63 Ga. 72, 74.
Effect of Waiver of Statutory Requirements. — Waivers by
the defendant of statutory requirements, of this and the
following section, and consents that the rules nisi and ab-
solute may be issued and the mortgage finally foreclosed
at the first term, do not bind third persons, nor confer
such jurisdiction on the court as will authorize it to render
a final judgment of foreclosure at the first term. As to
third persons such a judgment is void. Smith v. First
Nat. Bank, 143 Ga. 543, 85 S. E- 696.
The evidence in a claim case pending a fi. fa. on a mort-
gage was sufficient to show that a rule nisi and a rule
absolute were granted. Redding v. Anderson, 144 Ga. 100,
86 S. E- 241.
No appeal lies from a rule absolute awarded by the court,
for the foreclosure of a mortgage. Clifton v. Livor, 24
Ga. 91.
III. PUBLICATION, SERVICE AND RETURN.
See 8 Cum. Dig. 676, 9 Enc. Dig. 444. See also ante, this
note, Editor's Note, "In General," I.
Service by Publications. — Where the plaintiff seeks a
judgment in rem, and not a judgment in personam, serv-
ice by publication, in accordance with the terms of this sec-
tion, is no less effective than personal service. Smith v.
Downing Co., 21 Ga. App. 741, 95 S. E- 19.
Same — Effect of Section 5556 on This Section. — The act
of October 29th, 1889 (Acts of 1889, p. Ill, § 5556), "to pro-
vide for the time and mode of perfecting service by pub-
lication," as amended by the act of October 14th, 1891
(Acts of 1890-91, vol. 1, p. 110), is applicable to a proceed-
ing for the foreclosure of a mortgage upon realty; and con-
sequently, where the mortgagee is a non-resident of this
State, service may be perfected by publication twice a
month for two months, in compliance with the terms of
these acts. To the extent indicated, these acts modified
this section though it is neither referred to nor described in
either of them. Swiff v. Van Dyke, 98 Ga. 725, 26 S. E- 59.
Rule Nisi Is only Process. — In a statutory proceeding to
foreclose a mortgage on realty, the only "process" that
is necessary is the rule nisi prescribed by this section, and
the only prayer for process that is necessary is a prayer
for such a rule. Smith v. Downing Co., 21 Ga. App. 741,
95 S. E. 19. See also, Montgomery v. King, 123 Ga. 14,
50 S. E- 963.
Leaving a Copy at Defendant's Residence. — In cases of
foreclosure of mortgages, the service must be personal, or
by publication under this section. Service by leaving a
copy at the residence of the defendant is not sufficient.
Dykes v. McClung, 74 Ga. 382; Hobby v. Bunch, 83 Ga.
1, 10 S. E. 113; Southern States, etc., Co. v. Clark, 149
Ga. 647, 101 S. E. 536.
If the only service of the rule nisi to foreclose the mort-
gage under this section, was by leaving copy at the most
notorious place of abode of the defendant, and there was
no personal service, this furnished a good ground of de-
fense to the foreclosure. Meeks v. Johnson, 75 Ga. 629.
Service by an unofficial person is not legal under this
section. Falvey v. Jones, 80 Ga. 130, 4 S. E. 264; Hobby v.
Bunch, 83 Ga. 1, 11, 10 S. E. 113; Montgomery v. King,
123 Ga. 14, 50 S. E. 963; Southern States Phosphate, etc.,
Co. v. Clark, 19 Ga. App. 376, 385, 91 S. E. 573; Southern
States Phosphate, etc., Co. v. Clark, 149 Ga. 647, 101 S.
E- 536.
Where the entry of service is signed by one assuming
to act as deputy sheriff, and an affidavit of illegality is
interposed alleging that such person is not in fact a deputy
sheriff, if both the sheriff and the person acting as deputy
sheriff are not made parties to the traverse, there is no
such attack upon the return as would justify a judgment
setting it aside, and on motion such a ground of illegality
should be dismissed. So. Phosphate Co. v. Clark, 19 Ga.
App. 376, 91 S. E. 573.
Service by Special Bailiff. — Service undei this section
made by a special bailiff appointed by the judge of the
superior court under § 6310, is not legal, although the serv-
ice was made by the bailiff during the term of court at
and for which he was appointed. The rule nisi must be
served by the sheriff or his deputy. The sheriff can not
be affected by the act of omission of such special bailiff.
Southern States Phosphate, etc., Co. v. Clark, 149 Ga. 647,
101 S. E. 536.
The service of the rule on a trustee to foreclose mort-
gage on land, is sufficient under the statute; and the cestui
[873]
§ 3277
PLEAS, DEFENSES, ETC., WHEN AND HOW MADE
§ 3279
que trust need not be made a party. Wood v. Nisbet, 20
Ga. 72.
Right of Creditor of Mortgagor to Show Improper Serv-
ice.— Where service was regularly returned as made upon
a special agent of the mortgagor, a creditor of the mort-
gagor could not dispute the legality of the service by show-
ing that the person served was not in fact a special agent,
it not appearing that the mortgagor had repudiated the
service. Flannery v. Fertilizer Co., 94 Ga. 696, 21 S. E. 587.
Debt Not Due at Commencement of Terms but Matured
When Petition Represented. — Although, when the term
commenced at which the rule nisi to foreclose was taken,
the debt, to secure which the mortgage was given, was not
due, yet if, when the petition and rule nisi were repre-
sented, the debt had matured and the rule nisi was served
on the defendant more than three months before the next
term, at which the money due on the mortgage was required
to be paid; this is all that the mortgagee was entitled to,
under this section. Hart v. Altmeyer & Co., 74 Ga. 367.
Defective Service Rendering Judgment Voidable. — Where
service of a rule nisi was acknowledged by the mortgagors
four days before the rule absolute was granted by the
court, and the judgment absolute recited that the mort-
gagors named had "acknowledged service on this rule
nisi," such defective service did not render the judgment
absolute void, but voidable. Milltown Lumber Co. v. Blitch,
146 Ga. 253, 91 S. E- 62.
Day of Serving Rule Counted. — The day on which the
rule nisi to foreclose a mortgage on land was served,
should be counted, and counting that day, three months had
elapsed before the first day of the next term, and the serv-
ice upon the defendant was sufficient, under this section.
English v. Ozburn, 59 Ga. 392.
Late Service Returnable to Next Term. — Where a rule
nisi upon a petition to foreclose was issued at the January
term, of the superior court, and more than three months
before the next term of the court, which convened in April,
and at the latter term the mortgagor was required to pay
the money into court, and personal service of the rule nisi
was effected prior to the term at which the payment was
required to be made, but too late to be due service to that
term, it would go over and become returnable to the next
succeeding term. Vaughan v. Farmers and Merchants
Bank, 145 Ga. 338, 89 S. E. 195.
Where quarterly terms of the superior court in a par-
ticular county are provided for by law, and a rule nisi on
a petition to foreclose a mortgage on realty is granted
at one term under this section, and the first day of the
next regular succeeding term will occur within less than
three months after the grant of the rule nisi, it should be
made returnable to the first term thereafter for which
lawful service can be had, or the next term but one.
Southern States Phosphate & Fertilizer Co. v. Clark, 19
Ga. App. 376, 91 S. F. 573.
The return day in case of a foreclosure of a mortgage
on real estate, under this section, was tie day to which
the rule nisi was returnable. Swint v. Milner Bkg. Co.,
30 Ga. App. 733, 119 S. E. 336.
Recital of Service Silent as to Mode Read with Return.
— A recital of service under this section, if silent as to the
mode of service, is to be read in connection with the sheriff's
return. Hobby v. Bunch, 83 Ga. 1, 10 S. E. 113.
Amendment of Petition.— A petition, under this section,
to foreclose a mortgage on realty is pleading, and is with-
in the statute of amendment embraced in § 5681 of the
code. Ledbetter v. McWilliams, 90 Ga. 43, 15 S. E. 634.
§ 3277. (§ 2744.) By representatives of deceased
mortgagee. — If the person entitled to foreclose
the mortgage on real estate be dead, the appli-
cation and proceeding to foreclose may be made
and prosecuted by his executor or administrator.
As to parties to foreclosure generally, see 8 Cum. Dig.
675, 9 Enc. Dig. 443. As to foreclosure of personalty by
representative, see § 3303.
The administrator of the mortgagee is entitled to fore-
close at law against the administrator of the mortgagor,
and the heirs of the mortgagor are not necessary parties.
Dixon v. Cuyler, 27 Ga. 248.
Foreclosure in Administrative Capacity. — When a mort-
gage, made to W, his heirs and assigns, was transferred by
W, by written assignment to J as administrator of S, de-
ceased, such assignment, if properly stamped, conveyed
the mortgage to the estate, and it became assets in the
hands of the administrator, and the proceedings to fore-
close it, must be in the name of said J, as administrator
and not in his individual character. Flagg & Fish v. John-
ston, 39 Ga. 26.
§ 3278. (§ 2745.) Transferee may foreclose,
how. — A mortgage transferred by written as-
signment may be foreclosed in the name of the
mortgagee suing for the use of such assignee,
and the proceedings before and after judgment
may be amended by making the mortgagee a
party.
As to parties to foreclosure generally, see 8 Cum. Dig.
675, 9 Enc. Dig. 443. As to transfer and foreclosure of
liens, see §§ 3345-3347.
History of Section. — This section was codified from the
decisions of Nicholson v. Whaley, 90 Ga. 257, 16 S. E. 84
and Burgwyn Tobacco Co. v. Bentley, 90 Ga. 508, 16 S.
E. 216. It appeared for the first time in the Code of 1895
and has remained unchanged to date. Ed. Note.
Holder of Note. — A blank indorsement of the payee of a
mortgage-note is sufficient to pass the legal title in the
note and mortgage to the holder thereof, and the mort
gage may be foreclosed by the holder in his own name.
Patillo v. Hallet, etc., Piano Co., 26 Ga. App. 327, 106 S.
E. 206.
Same — Using Mortgagee's Name. — The purchaser of
notes secured by mortgage may foreclose the mortgage at
law by using the name of the mortgagee for his use, even
against the consent of the mortgagee, by giving proper
indemnity. Calhoun v. Tullass, 35 Ga. 119.
Transferee Foreclosing Where First Foreclosure Ir-
regular.— A transferee of a mortgage fi. fa. can foreclose
the mortgage in his own name as transferee, if for any
reason the first foreclosure on which the fi. fa. is based is
irregular or defective. Ragan v. Coley & Bro., 4 Ga. App.
421, 61 S. E. 862.
Amendment of Inaccurate Description of Plaintiff. — Al-
though the bearer of a mortgage, as such, has no right to
foreclose it in his own name, yet where it appears that one
so proceeding had, in fact, a transfer in writing to him, the
verbal inaccuracy in describing his character as plaintiff
could have been amended instanter. Taylor v. Blasingame,
73 Ga. 111.
Amendment of Judgment After Adjournment. — After the
adjournment of the term at which it was rendered, a judg-
ment can not be amended on the merits of the cause- by
reason of facts or conditions subsequently transpiring.
Richards v. McHan, 139 Ga. 37, 76 S. E. 382.
Stated in Montgomery v. King, 123 Ga. 14, 50 S. E. 963.
SECTION 2.
Of Pleas, Defenses, etc., When and How Made.
§ 3279. (§ 2746.) Defense against foreclosure
of mortgage on realty. — When a rule nisi to fore-
close a mortgage on real estate has been granted,
and the same has been published or served as
hereinbefore required, the mortgagor, or his
special agent or attorney, may appear at the
term of the court at which the money is directed
to be paid, and file his objections to the foreclos-
ure of such mortgage, and may set up and avail
himself of any defense which he might lawfully
set up in an ordinary suit instituted on the debt
or demand secured by such mortgage, and which
goes to show that the applicant is not entitled to
the foreclosure sought, or that the amount
claimed is not due: Provided, that the facts of
such defense are verified by the affidavit of such
mortgagor, or special agent or attorney, at the
time of filing the same. Act 1799, Cobb, 570;
Act 1839, Cobb, 572.
Cross References. — For full treatment, see 8 Cum. Dig.
679, 9 Enc. Dig. 447. As to amendment of affidavits to
foreclose, see § 5706. As to recoupment, see §§ 4350-4355.
Editor's Note.— The following defenses will be found to
be alphabetically collated with such additional catchlines
as are thought to be of help to the searcher. This seemed
to be the more logical arrangement for a note of this kind,
as each of the defenses are of nearly the same _ efficacy
and are ruled upon by the courts for the same point.
Accumulative Defenses. — In a proceeding to foreclose, it
is competent for the mortgagor, at the second term, to
show cause why the rule absolute should not be gran-
74]
§ 3279
PLEAS, DEFENSES, ETC., WHEN AND HOW MADE
§ 3280
ted, that the mortgage debt is usurious, that it is founded
upon a gaming consideration, or that it was contracted 10
compound a felony, or that the mortgage was given un-
der duress or has been released, or to avail himself of any
other defense which goes to show that the mortgagee is
not "entitled" to a judgment of foreclosure, or, that the
amount claimed is not due. Dixon v. Cuyler, 27 Ga. 248.
Bankruptcy— Property Subject to.— That mortgaged prop-
erty is subject to be administered in bankruptcy, will not
entitle the mortgagor to resist the administration of it by
foreclosure and sale under proceedings in the appropriate
court of the State. Broach v. Powell, 79 Ga. 79, 3 S. E-
763.
Same— Discharge.— That the defendant has been adjudged
a bankrupt, and the property covered by the mortgage
regularly set apart to him as his exemption, is not a good
plea in bar to the foreclosure of said mortgage, where it is
not alleged that the mortgagee proved his lien in the bank-
rupt court, or that the assignee has interfered in any man-
ner with the mortgage. Cumming v. Clegg, 52 Ga. 605. See
also Hatcher v. Jones, 53 Ga. 208.
A discharge in bankruptcy is no defense to the foreclosure
of a mortgage executed more than four months prior to the
filing of the petition in bankruptcy, when the debt secured
by the mortgage has not been proved in the bankrupt
court. Camp v. Young, 119 Ga. 981, 47 S. E. 560. See also
Evans v. Rounsaville, 115 Ga. 684, 42 S. E. 100.
A plea interposed to a proceeding to foreclose a mort-
gage on land, that, pending the proceedings to foreclose,
the mortgagor was adjudicated a bankrupt, and praying
that such proceedings be stayed until the question of the
discharge in bankruptcy of the mortgagor is determined,
is not good. Carter v. Peoples Nat'l Bank, 109 Ga. 573,
35 S. E. 61.
Damages as Set-Off. — A mortgagor may plead damages
arising from a breach of an independent contract, as a
set-off in bar of a proceeding to foreclose a mortgage on
land, under this section. Mahone v. Elliott, 141 Ga. 214,
80 S. E- 713. See also Alston v. Wheatley and Co., 47 Ga.
646.
Equitable Defense. — Where a defense is purely equitable,
a party is not foreclosed from asserting his right, by suf-
fering judgment at law to go against him by reason of
sickness. Clifton v. Livor, 24 Ga. 91.
Fraud in Procurement of Draft. — See post, this note, note
of Hall v. Davis, 73 Ga. 101.
Homestead Property Mortgaged.— See 8 Cum. Dig. 680.
Where a homestead was set apart under the constitu-
tion of 1868, and a mortgage on the homestead property
was given in 1898, it was permissible for the defendant to
set up the homestead in defense under this section to an
action to foreclose the mortgage. Ach & Co. v. Milan, 118
Ga. 105, 44 S. E. 870.
In a suit against a mortgagor individually to foreclose
a mortgage on land, it is no defense to the foreclosure that
after the mortgage was given a part of the land covered
by the mortgage had been set apart to the defendant as
the head of a family for a homestead. Rathel v. Fort, 134
Ga. 268, 67 S. E. 417.
Indebtedness — Plea of Not Indebted. — A plea of not in
debted, though supplemented by the allegation that the
mortgage "was obtained by fraud on the part of the plain-
tiff," without alleging the particular fraudulent acts re-
lied upon to defeat a recovery, is not such an issuable de-
fense as prevents the granting of a rule absolute. Woods
v. Roberts, 97 Ga. 254, 22 S. E. 986.
Same — Debt Not Due. — In view of this section a plea
which denied that the debt was due, and alleged want of
consideration and fraud in the procurement of the draft to
secure which the mortgage was made, should not have been
dismissed on demurrer. Hall v. Davis, 73 Ga. 101.
Same — Payment. — A mortgage on land given to secure the
payment of promissory notes can not, after they have been
paid, be foreclosed. Ryan v. Rice, 109 Ga. 448, 34 S. E-
569.
A general allegation in an answer, that the mortgagee
has paid $50 or $60 for which no credit has been given, and
that she is unable to give the sum or date of each pay-
ment, without alleging to whom, or when, or where such
payments were made, is demurrable. Montgomery v. King,
125 Ga. 388, 54 S. E. 135.
Same — Jury Determining Consideration. — Whether the
consideration for which a mortgage is alleged to have been
executed, is bona fide, or merely colorable to defraud credi-
tors, or so inadequate as to constitute a badge of fraud, is
a question of fact for the jury. Williams v. Kelsey &
Halsted. 6 Ga. 365.
Judgment Improperly Rendered. — A petition filed by the
defendant to set aside and vacate a judgment of fore-
closure improperly rendered, and to enjoin the sale of his
property under a levy of the execution issued thereon, was
not subject to a general demurrer in view of this section.
Walton v. Wilkinson Bolton Co., 158 Ga. 13, 123 S. E. 103.
Support — Of Mother of Mortgagor. — Where property has
been mortgaged, which is subject to the support of the
mother of the mortgagors during her natural life, and pro-
ceedings are instituted to foreclose by the mortgagees, there
is no good legal or equitable ground why the mortgages
should not be foreclosed, as between the mortgagors and
mortgagees. Colquitt v. Tarver, 45 Ga. 631.
Same — Year's Support to Widow. — That the land covered
by a mortgage lien had been set apart to the widow of
the mortgagor as a year's support, over objections filed by
the mortgagee, constituted no defense to the foreclosure
of the morcgage. Derrick v. Sams, 98 Ga. 397, 25 S. E-
509.
Title — Pleading Want of. — Where a person executed a
mortgage upon certain property, his administrator is es-
topped, in a suit brought to foreclose the mortgage, to
plead want of title in his intestate at the time the mort
gage was executed. Carter v. Jackson, 115 Ga. 676, 42 S.
E. 46.
Same — Forgery of Deed in Vendor's Title. — To the fore-
closure of a mortgage on land for the purchase money
thereof, it was no defense that one of the deeds in the ven-
dor's title appeared on its face to be a forgery; there be-
ing no allegation that he warranted the title to the ven-
dee, nor that there was fraud in the transaction, nor that
any of the purchase money had been paid. O'Neal v.
Carmichael, 84 Ga. 511, 11 S. E- 352.
Same — Denial that Title to Notes in Usees. — The proceed-
ings were instituted to foreclose a mortgage, in the name
of the original mortgagee, for the use of certain persons
to whom it was alleged that the security notes had been
transferred, and no effort was made to cut off any de-
fense which the mortgagor might have, a mere denial that
the title to the notes was in the vtsees, and an allegation
that they held such notes only as securities, did not fur-
nish any valid defense to the foreclosure. Montgomery v.
King, 125 Ga. 388, 54 S. E. 135.
Trust Property Mortgaged. — In a proceeding to foreclose
a mortgage on real estate, the mortgagor can not set up
as a defence for himself against the mortgagee, that the
property so mortgaged was trust property, and that he
had no right to mortgage it. Boisclair v. Jones, 36 Ga. 499.
Usury. — Upon a rule to foreclose a mortgage, the mort-
gagor may show, by way of defence, that the contract upon
which it was given was usurious. Bailey v. Lumpkin, 1
Ga. 392. See also, Patterson v. Clark, 28 Ga. 526.
Applied in Lankford v. Peterson, 20 Ga. App. 147, 92 S.
E. 764.
§ 3280. (§ 2747.) Third person can not defend.
If the mortgagor, or his special agent or attor-
ney, fail to set up the defense provided for in the
preceding section, it is not competent for any
third person to' interpose; neither will the court
itself, of its own motion, do so.
As to how third person may contest mortgage lien, see
§ 3304. As to enforcement of liens on realty, see § 3365.
In General. — A third person, who is not a party to the
record, will not be permitted to make objections to the
foreclosure of a mortgage, under this section, until he has
been regularly made a party by the judgment of the court
but those not parties are not concluded by judgment. Mc-
Dougald v. Hall, 3 Ga. 174; Jackson v. Stanford, 19 Ga. 14;
Sutton v. Sutton, 25 Ga. 383; Williams v. Terrell, 54 Ga.
462; Frost v. Borders, 59 Ga. 817; Lilienthal v. Champion,
58 Ga. 158.
A claimant against a mortgage fi. fa. can not take ad-
vantage of the fact that the mortgage was foreclosed
within twelve months from the granting of letters of ad-
ministration upon the estate of the deceased mortgagor.
Baker v. Shephard. 30 Ga. 706.
Junior Vendee Not a Party. — A foreclosure of a mort-
gage by the statutory method, to which proceeding a junior
vendee of the land is not a party, while not conclusive on
such vendee is valid as between the holder of the mort-
gage and the mortgagor. Roberts v. Atlanta Cemetery
Asso., 146 Ga. 490, 91 S. E. 675.
Intervention — Resort to Equity. — Creditors who are not
parties, have no right to intervene to prevent a foreclosure,
by virtue of this section, but they may resort to equity to
prevent the foreclosure of a fraudulent mortgage which
jeopardize their rights. Albany, etc., Co. v. So. Agricultural
Works, 76 Ga. 135.
In a statutory proceeding by rule nisi to foreclose a mort-
[875]
§ 3281
DISPOSITION OF MORTGAGED PROPERTY
§ 3283
gage, it is not competent for parties who claim that prop-
erty belonging to them has been misappropriated, and that
they have an interest in the property of the mortgagor,
to intervene as defendants to the foreclosure of the mort-
gage and seek equitable decrees in their favor in such
proceeding, by reason of this section. If they have any
equitable rights, they can not be thus asserted. Trust Co.
v. Sessions, 136 Ga. 862, 72 S. E- 347.
Same — Defendant Estopped from Denying Title. — By vir-
tue of this section the defendant was estopped by his deed
from denying title to the mortgaged premises, and neither
he nor the court, at his suggestion, could intervene for the
protection of the rights of a third person, who would not
be bound by a judgment to which he was not, and could
not be made, a party. Hall v. Davis, 73 Ga. 101.
Collateral Attack. — All others, than parties or privies,
may attack the judgment of foreclosure whenever and
wherever it comes in their way; may therefore attack it
"collaterally." Johnston v. Crawley, 22 Ga. 348, 351.
Bill to Redeem by Junior Mortgagee. — Under this sec-
tion which does not require or permit a junior mortgagee
to become a party to a statutory proceeding to foreclose
the senior mortgage, where the property has been sold
in such foreclosure proceedings the remedy of the junior
mortgagee is by a bill to redeem. American Loan, etc., Co.
v. Atlanta Electric Ry. Co., 99 Fed. 313.
§ 3281. (§ 2748.) Proceedings to foreclose when
mortgagor dead.— When the mortgagor is dead,
the proceedings to foreclose the mortgage on
real estate may be instituted against his executor
or administrator.
As to foreclosure of mortgage on personal property by
representative, see § 3303.
If a mortgager die insolvent, and there is no administra-
tion on his estate, and the equity of redemption has been
sold, the mortgagee may proceed to foreclose, in equity,
'against such purchaser and his vendees. May & Stokes v.
Rawson, 21 Ga. 461.
Sale. — If, pending a regular proceeding to foreclose a
mortgage upon realty given by a testator, his executor
validly sells the mortgage property, this will bar the ren-
dition of a judgment of foreclosure. Reed v. Aubrey, 91
Ga. 435, 17 S. E. 1022. See also, Newsom v. Carlton, 59
Ga. 516.
Applied in Harvey v. Beasley, 144 Ga. 517, 87 S. E. 655.
§ 3282. (§ 2749.) Issue, how tried.— When pro-
ceedings to foreclose a mortgage are instituted,
and a defense is set up thereto, as hereinbefore
provided, the issue shall be submitted to and
tried by a special jury.
As to trial generally, see 9 Enc. Dig. 451.
At What Term Issue Tried. — Where a rule nisi on a pe-
tition to foreclose in the superior court, directed that the
money due on the mortgage be paid into court on or be-
fore the first day of the term next immediately succeed-
ing the term at which it was granted, and the rule was
served on the defendant at least three months before the
term designated for the payment, the issue made by a de-
fense filed at that term was triable at that term. Lankford
v. Peterson, 20 Ga. App. 147, 92 S. E- 764.
SECTION 3.
Of the Judgment and Disposition of Mortgaged
Property.
§ 3283. (§ 2750.) Judgment, and sale of mort-
gaged property. — When the mortgagor, after
being directed so to do, fails to pay the principal,
interest, and cost, as hereinbefore required, and
also fails to set up and sustain his defense against
the foreclosure of the mortgage, the court shall
give judgment for the amount which may be due
on such mortgage, and shall order the mortgaged
property to be sold in the manner and under the
same regulations which govern sheriff's sales un-
der execution. And the provisions of section
3304. of this Code shall apply as well to mortgages
upon real property as to mortgages upon per-
sonal property. Act 1790, Cobb, 571; Acts
1866, p. 25.
For full treatment, see 8 Cum. Dig. 581, 9 Enc. Dig. 452.
As to how third person may contest mortgage lien, see
§ 3304.
Conclusiveness of Judgment. — A decree foreclosing a
mortgage is conclusive upon the defendant in the bill, and
upon any purchaser from him who purchased after the de-
cree was rendered. Gunn v. Wades, 62 Ga. 21.
The foreclosure of a mortgage is conclusive between par-
ties and privies, and in a subsequent controversy between
them evidence is not admissible to go behind the judgment
of foreclosure. Spinks v. Glenn, 67 Ga. 744.
Ordinarily a judgment of foreclosure bars only the rights
of the mortgagor, his heirs and legal representatives.
Howard v. Gresham, 27 Ga, 347.
Impeaching Judgment. — Upon the trial of a claim case,
where the claimant claims through a judgment of fore-
closure of mortgage, made by the defendant in execution
to his vendor, the plaintiff in execution may impeach that
judgment and mortgage, and prove- it fraudulent on the
trial. Williams v. Martin, 7 Ga. 377.
Same — Burden of Proof. — Where on its face a mortgage
fi. fa. is valid, the burden of proving that it was based on
an invalid judgment of foreclosure is on the claimant.
Redding v. Anderson, 144 Ga. 100, 86 S. E- 241.
Judgment Not within Dormant Judgment Acts. — A judg-
ment foreclosing a mortgage, is not within the Acts pro-
viding for the dormancy of judgments (§ 4355). Horton v.
Clark, 40 Ga. 413; Butt v. Maddox, 7 Ga. 495; Redding v.
Anderson, 144 Ga. 100, 86 S. E- 241.
Sufficiency of Judgment. — A judgment of foreclosure of
real estate which substantially complies with this section
is sufficient. Dickerson v. Powell, 21 Ga. 143.
On the trial of a rule to foreclose a mortgage, the main
question is, whether the plaintiff is entitled to recover (as
respects the mortgaged property) the debt which the mort-
gage describes, and it not the whole, how much of it. A
verdict for so many dollars as principal, with interest, is
sufficiently formal and full. This section directs what judg-
ment is to be rendered by way of rule absolute in the fore-
closure proceeding. Byrd v. Turpin. 62 Ga. 591.
Court's Judgment Without Jury. — When the mortgagor,
upon proceedings to foreclose a mortgage, fails to pay the
money into court as directed by the rule nisi duly served
upon him, and also fails to set up and maintain any de-
fense against the foreclosure of the mortgage, there is, in
such case, no issue for trial by jury, and it is the province
of the court, upon hearing competent and sufficient evi-
dence, to render judgment under this section for the amount
which may be due on such mortgage and to order the mort-
gaged property sold. Ray v. Atlanta Bkg. Co., 110 Ga.
305, 35 S. E. 117. See also Sutton v. Gunn, 86 Ga. 652, 12
S. E. 979.
Amendment to rule absolute to show credits is not al-
lowed. Cherry v. Home Bldg., etc., Asso., 57 Ga. 361.
Waiver of Statutory Requirements. — See "Pleading and
Practise Generally," II, under § 3276.
Levy — On Property in Possessiqn of Third Person. — It is
not a trespass for a sheriff to levy a mortgage fi. fa. upon
the mortgaged property named in the process, in the pos-
session of a third person and held by him adversely to the
mortgagor — in such a case he has no discretion, but must
levy at all events. Wallace v. Holly, 13 Ga. 389.
Same — Description. — Whether the property described in
the levy was the same as that described in the mortgage
and the rule absolute was a question of fact and not of
law. Ray v. Atlanta Bkg. Co., 110 Ga. 305, 35 S. E. 117.
Same — Omitting to Recite Land as Defendant's Property.
— Where the sheriff, while making the levy, omitted to
recite that the land was levied upon as the property of
the defendant named in the execution, the levy was not for
that reason void, or inadmissible upon the trial of a claim
case between the plaintiff in execution and a third person.
Thornton v. Ferguson, 133 Ga. 825, 67 S. E- 97.
Rights of Purchaser at Sale. — A bona fide purchaser of
land under a mortgage fi. fa. will be protected in his title,
notwithstanding any irregularity in the proceeding of the
foreclosure; especially after the same has been acquiesced in
for nearly thirty years. Delorme v. Pease, 19 Ga. 220.
And where property sold under a void foreclosure of a
mortgage as the property of a mortgagor, has been pur-
chased at sheriff's sale, and the purchase money applied
to the payment of the mortgage, and the sale and purchase
:are afterwards set aside and declared void, the purchaser
can be subrogated to the rights which the mortgagee origi-
nally had to have his mortgage foreclosed and the prop-
erty therein conveyed sold in discharge of the lien of the
mortgage. Dutcher v. Hobby, 86 Ga. 198, 12 S. E. 356.
[876]
§ 3284
MORTGAGES OF PERSONALTY
§ 3286
Bona Fide Purchaser in Possession for Four Years. —
Judgments on foreclosure of mortgages are not within the
provisions of § 5950, providing that a bona fide purchase of
real property and possession for four years discharges the
property "from the lien of any judgment against the per-
son from whom he purchased." Redding v. Anderson, 144
Ga. 100, 86 S. F- 241.
Applicability of Section 3304. — It was held under this sec-
tion that where a creditor of a mortgagor, whether his
debt be in judgment or not, desires to contest the validity
or fairness of the mortgage lien claimed by another credi-
tor, adequate remedy is afforded by affidavit of illegality
under § 3304. Dumas v. Tyus, 147 Ga. 307, 93 S. F. 894.
It was held under this section that if a mortgage debt be
infected with usury, and the mortgagor is insolvent, it is
the equitable right of a creditor of the mortgagor to com-
pel the mortgagee to purge his claim of the usury charged
their common debtor. See § 3304. Parker v. Barnesville
Sav. Bank, 107 Ga. 650, 34 S. E- 365.
Cited in Fathrop v. Brown, 65 Ga. 312; Ach v. Milam,
118 Ga. 110, 44 S. F. 870; James v. Douglasville Banking
Co., 26 Ga. App. 509, 106 S. F. 595.
SECTION 4.
Proceeds of Sale of Mortgaged Property, How
Appropriated.
§ 3284. (§ 2751.) Disposition of proceeds. — The
money arising from the sale of mortgaged prop-
erty, brought to sale under the regulations here-
inbefore prescribed, shall be paid to the person
foreclosing the mortgage, unless claimed by
some other lien in the hands of the officer, which
in law has priority of payment over the mort-
gage; and when there shall be any surplus after
paying off such mortgage or other liens, the same
shall be paid to the mortgagor, or his agent. Act
1799, Cobb, 571.
See § 3274 and notes thereto. See also, 8 Cum. Dig. 686,
Oldest Lien Usually Has Priority. — The mortgagee, hav-
ing the oldest lien, was equitably entitled to have the pro-
ceeds in the hands of the sheriff applied thereto. Winter
v. Garrard, 7 Ga. 183. See also, Thomson v. McCordel, 27
Ga. 273.
Second Mortgage Referring to Older Mortgage. — A first
mortgage was entitled to priority over a second which re-
cited that there was an older mortgage on same property,
in a distribution of the proceeds of the mortgaged property,
raised at a sale made by a receiver. Kiser & Co. v. Car-
rollton Dry Goods Co., 96 Ga. 760, 22 S. F- 303.
Two mortgages executed on the same day are of equal
date, and if both are recorded in time, are entitled to share
pro rata in a fund not sufficient to satisfy them both. The
law will not note fractions of a day except to prevent in-
justice, and in cases specially provided for by law. Rus-
sell v. Can- & Co., 38 Ga. 459.
Where facts apparent on the faces of mortgages executed
on same day show that it was the intention of the parties
to give the preference to one over the others, that lien so
preferred will be enforced. Coleman & Co. v. Carhart, 74
Ga. 392.
Judgment Creditor Entitled to Easily Obtained Fund. —
When there is a fund in court on which a judgment credi-
tor can lay his hands without trouble, expense or delay,
a court of equity will not, at the instance of other credi-
tors, holding junior mortgage liens on the fund, force the
judgment creditor to proceed with his judgment against
property in the hands of third persons, where he must en-
counter expense and delay in collecting his debt. Behn v.
Young & Co., 21 Ga. 207.
Judgment Obtained between Mortgage and Novation. —
On a rule for distribution of money in the sheriff's hands,
judgments junior to mortgages to W will prevail over a
mortgage fi. fa. junior to the judgments and founded on a
mortgage to W & Co., alleged to have been given in re-
newal of the former mortgages, but shown by the record
to be a novation. Williams & Co. v. Donalson, 84 Ga. 593,
10 S. F. 1015.
Judgment Younger than Mortgage but Older than Gen-
eral Judgment on Same. — The owner of a mortgage on
realty, did not foreclose the mortgage, but obtained a gen-
eral judgment on the debt secured by it, and the prop-
erty embraced in the mortgage was sold by the sheriff.
Another creditor, who had a judgment younger than the
mortgage but older than the general judgment brought a
rule against the sheriff for distribution of the funds realized
from the sale of the property and the fund was properly
awarded to the older of the two judgments. Thomasville
Live Stock Co. v. Burney, 19 ('.a. App. 703, 91 S. F- 1062.
Creditor Holding Bonds as Collateral. — At a time subse-
quent to the deposit of bonds with a creditor as collateral,
he became the purchaser of the bonds under circumstances
which rendered void the transaction culminating in a sale
of the bonds to him. If the sale was void, the holder of
the bonds claiming to be purchaser was relegated to his
position of holder of the bonds as collateral security, and
as such was the proper beneficiary in the proceedings to
foreclose the trust deed to secure the payment of the bonds.
Valdosta, etc., R. Co. v. Valdosta Bank, etc., Co., 144 Ga.
761, 87 S. F. 1083.
Cited in Mixon v. Stanley, 100 Ga. 372, 378, 28 S. F. 440;
Tefft v. Sternberg, 40 Fed. 3. •
§ 3285. (§ 2752.) When proceeds may be re-
tained by the court. — If the mortgage is given to
secure a debt due by installments, and is fore-
closed before any one of the installments falls
due, and there is a surplus of funds, as above
stated, the court may retain the funds, or order
the same invested to meet the installments still
unpaid.
See cross references and notes to § 3272.
Cited in Smith v. Bowne, 60 Ga. 485* Hatcher v. Chan-
cey, 71 Ga. 689; Littleton v. Spell, 77 Ga. 227, 2 S. F. 935;
Stricland v. Lowry Nat. Bank, 140 Ga. 653, 79 S. F. 539.
For notes to the above cases, see notes to § 3272.
ARTICLE 3.
Of Mortgages on Personal Property, and Bills
of Sale to Secure Debts, How Foreclosed.
SECTION l.
Application to Foreclose, by Whom and How
Made.
§ 3286. (§ 2753.) Mortgages on personalty,
how foreclosed. — Mortgages on personal prop-
erty shall be foreclosed in the following manner,
to wit: Any person holding a mortgage on per-
sonal property, and wishing to foreclose the
same, shall, either in person, or by his agent, or
attorney in fact or at law, go before some officer
of this State who is authorized by law to admin-
ister oaths, or a commissioner for this State re-
siding in some other State, and make affidavit of
the amount of principal and interest due on such
mortgage, which affidavit shall be annexed to
such mortgage, or to a copy thereof verified as
correct by the affidavit thereon of the owner or
his agent or attorney, and when such mortgage,
or sworn copy with such affidavit annexed there-
to, shall be filed in the office of the clerk of the
superior court of the county wherein the mort-
gagor resides at the date of the foreclosure, if a
resident of this State, or where he resided at the
date of the mortgage if not a resident of this
State, it shall be the duty of such clerk to issue
an execution directed to all and singular the
sheriffs, or their lawful deputies, and coroners of
this State, commanding the sale of the mort-
gaged property to satisfy the principal and inter-
est, together with the cost of the proceedings to
foreclose the said mortgage. Act 1799, Cobb,
571; Act 1839, Cobb, 572; Acts 1871-2, p. 20;
1882-3, pp. 109, 74.
I. In General.
II. What May Be Foreclosed.
III. Affidavit and Petition.
IV. Execution and Sheriff's Duty.
7]
§ 3286
MORTGAGES OF PERSONALTY
§ 3286
Cross References.
For full treatment, see 3 Cum. Dig. 609, 3 Enc. Dig. 113.
As lo foreclosure before justice, see § 3293. As to transfer
and foreclosure of liens, see §§ 3345-3347. As to amend-
ment of affidavits to foreclose, see § 5706.
I. IN GENERAL.
Editor's Note. — Although the codifiers of the Codes of
1910 and 1895 did not include Act 1892, pp. 62, 63 on the mar-
gin of this section, yet it was an amendment to it. In its
terms, it added the phase "or their lawful deputies" after
the word "sheriffs" near the bottom of the section. This
amendment, however, seemed to have been unnecessary, as
was pointed out in Jones v. Rountree, 96 Ga. 231, 23 S. E-
311. That case held that even before the passage of the
Acts 1892, a deputy sheriff could levy an execution under
this section.
It should be noted that while this section provides for
foreclosure in the event that the mortgagor resides in the
state or in the event that he resided in the state at the
time of the mortgage, there is no express provision relating
to foreclosure of mortgages made by non-residents who
were not residents and who never became residents. This
omission was the basis of litigation in several cases where
chattel mortgages were made by non-residents and the prop-
erty was subsequently brought into the state, the mort-
gagors never coming into the state. In Griffin v. Marshall,
45 Ga. 549, it was held the terms of this section would be
extended by implication to cover this class of cases, and
that the mortgage could be foreclosed whenever the property
could be paid. While the headnote of this case in the
official reports is rather misleading, inasmuch as it refers to
the acts of 1799 as amended in 1839 and this section as sepa-
rate provisions whereas they are in fact substantially the
same, the decision as here stated is obviously correct. See
also Rich v. Colquitt, 65 Ga. 114, 115.
Nature of Foreclosure Proceedings. — Foreclosing a mort-
gage on personalty, under this section, is a proceeding at
law. Manheim v. Clafiin & Co., 81 Ga. 129, 133, 7 S. E. 284.
And such a foreclosure is a proceeding of the state court,
within the meaning of Rev. St. U. S. § 720, providing that
no injunction shall be granted by a federal court to stay
proceedings in a state court. Tefft v. Sternberg, 40 Fed. 2.
Proceeding on Debt at Time of Foreclosure. — A mortgagee
of personalty may foreclose under this section and proceed
at the same time on the mortgage debt by ordinary ac-
tion. Juchter v. Boehm, etc., Co., 63 Ga. 72.
Foreclosure as Disaffirmance of Title. — A foreclosure un-
der this section is such a disaffirmance of title by the mort-
gagee as waives the assertion of title, although the mort-
gage may be only a part of a contract which also contains
a reservation of title, and although the instrument in ques-
tion might either be foreclosed as a mortgage or afford the
basis of an assertion of title in the payee by trover. Ken-
nedy v. Manry, 6 Ga. App. 816, 66 S. F. 29; Puett v. Ed-
wards, 17 Ga. App. 645, 88 S. F. 36.
Place of Foreclosure. — A mortgage on personalty must be
foreclosed in the county of the residence of the mortgagor,
if a resident of this state; and that it is so foreclosed should
affirmatively appear from the record. Rich v. Colquitt, 65
Ga. 114.
Foreclosure on Copy of Mortgage.— See post, this note,
"Affidavit and Petition," III.
Substantial Compliance with Section. — A substantial com-
pliance with the method pointed out for foreclosing a chat-
tel mortgage by this section is essential to a judgment of
foreclosure. Duke v. Culpepper, 72 Ga. 842.
If the requirements for the foreclosure of a chattel mort-
gage have been substantially complied with, and all de-
fects in the proceedings appear to be amendable, the pro-
ceeding is not void, and' third persons acquiring rights to
the property sold thereunder will be protected therein.
Hardy v. Luke, 18 Ga. App. 423, 89 S. F- 540.
Rights of Trustee in Bankruptcy — If a mortgage on per-
sonalty was foreclosed, ' as provided in this section, and the
sheriff took possession, a trustee in bankruptcy of the mort-
gagor, appointed after a subsequent adjudication, would not
have the right to have the property delivered to him. al-
though the petition in involuntary bankruptcy was filed be-
fore the mortgage was foreclosed. The mere fact that in
the bankruptcy proceeding a temporary receiver had been
named, but had not taken possession when the sheriff seized
the property under the mortgage foreclosures, would not
alter the case. Neill v. Barbaree, 135 Ga. 771, 70 S. F. 638.
Same-r-Contesting Validity of Lien. — Upon summary fore-
closure of a mortgage on personalty under this section and
seizure of the property, the mortgagor or other creditor
may contest the validity of the lien or the amount claimed
to be due. A trustee in bankruptcy may do so. Neill v.
Barbaree, 135 Ga. 771, 774, 70 S. F. 638.
Attorney's Fees. — By the terms of a contract, attorneys
fees were as much a part of the debt secured as were the
notes themselves. The court was right in awarding ten per
cent to the plaintiff's attorney as fees in the foreclosure
under this section. McCall v. Walter, 71 Ga. 287.
Cited in Berckmans v. Tarnok, 151 Ga. 117, 121, 106 S.
F. 2.
II. WHAT MAY BE FORECLOSED.
Mortgage to Secure Note for Advances to Make Crop. —
A chattel mortgage properly executed and recorded, to se-
cure the payment of a promissory note given for advances
to make a crop, is a valid mortgage, and may be fore-
closed under this section, and it is error in the court to
dismiss the levy thereon, because "the affidavit of fore-
closure is not made in compliance with the statute on fore-
closure of liens." Stephens v. Tucker, 55 Ga. 543.
Single Mortgage Securing Two Creditors. — Where a
debtor made a single mortgage covering a stock of goods
to secure two creditors to the amounts respectively due
them (stating each), the mortgage cuuld be foreclosed in
favor of both creditors at the same time; and such fore-
closure would not be the joining of distinct and separate
claims in the same action. See § 5515. Chamberlin & Co.
v. Beck, etc., Co., 68 Ga. 346.
Note with Reservation of Title. — A purchase-money note
for an amount exceeding one hundred dollars, which con-
tains a reservation of title to the personalty for the pur-
chase-price of which the note was given, and does not in-
clude a mortgage, can not be foreclosed as a mortgage.
Puett v. Edwards, 17 Ga. App. 645, 88 S. F. 36.
A purchase-money note, duly recorded, in which it was
provided that the title should be reserved until payment
could not be foreclosed by affidavit as provided by this
section, but where execution was placed in sheriff's hands,
there was no error in ordering proceeds of the sale to be
paid to such vendors. Browder v. Blake, 135 Ga. 71, 68 S.
E- 837.
III. AFFIDAVIT AND PETITION.
See 3 Cum. Dig. 608, 3 Enc. Dig. 112.
Necessity for Affidavit. — The affidavit provided for in
this section is a necessary basis of the mortgage fore-
closure, and without it the foreclosure proceeding, and the
fi. fa. and levy based upon it, are mere nullities, and are
subject to collateral attack in any court for lack of such
affidavit. Edwards v. Price, 11 Ga. App. 658, 75 S. E.
1067.
Affidavit before Clerk. — See post, this note, "Execution
and Sheriff's Duty," IV.
Stating Venue. — An affidavit to foreclose a chattel mort-
gage which alleged the residence of the defendant and the
location of the goods to be in a named city, sufficiently
stated the venue. Clayton v. May, 67 Ga. 769.
An affidavit upon which to base the foreclosure of a
chattel mortgage must allege that the defendant resides
in the county of such proceeding. Callaway v. Walls,' 54
Ga. 167; Harper v. Grambling, 66 Ga. 236.
Necessity for Signature of Affiant. — A paper purporting
to be an affidavit made by the attorney at law for the
mortgagee in foreclosure proceedings, but which appears
not to have been signed by the affiant or attested by any
officer, is not an affidavit, and can not be the basis of a
mortgage foreclosure. In this state the signature of the
affiant is necessary to the validity of the affidavit. Ed-
wards v. Price, 11 Ga. App. 658, 75 S. E. 1067.
A paper, the truth of the contents of which has been
sworn to, but which has not been signed by the affiant, is
not an affidavit, and can not be amended. Meadows v.
Alexander, 1 Ga. App. 40, 57 S. E. 901.
Signature of Bank President.— An affidavit signed by the
president of a bank as president of the bank instead of
signing as president of the corporation by its corporate
name, if irregular, is not material. Kirkpatrick v. Bank,
30 Ga. 465.
Affidavit by Attorney — When the affidavit to foreclose a
mortgage is made by an attorney, the recital in it that he
is attorney-at-law for the mortgagee, is sufficient. Den-
ham v. Williams, 39 Ga. 312.
A mortgage is not illegal because the affidavit of the
mortgagee for foreclosure is made before a notary public
who is also an employee in the office of the attorney at law,
employed by the mortgagee to foreclose the same. Good-
rich v. Williams, 50 Ga. 426.
Omission of Oath. — Where it is shown that no oath was
in fact administered to one who apparently swore to an
affidavit made to foreclose a chattel mortgage, an affidavit
of illegality should be sustained. Green v. Rhodes, 8 Ga.
[ 878 ]
§ 3286
MORTGAGES OF PERSONALTY
§ 3287
App. 301, 68 S. E. 1090. See also, Hillis v. Comer & Co.,
14 Ga. App. 30, 79 S. E. 930.
Instrument Need Not Show Oath.— A signed statement of
facts, purporting to be the statement of the signer, fol-
lowed by the certificate of an officer authorized to ad-
minister oaths that it was sworn to and subscribed before
him, is a lawful affidavit. It is not necessary that it should
be stated in the instrument, prior to the signature of the
affiant, that the declaration was made under oath, if in
fact the oath was administered. Miller v. Caraker, 9 Ga.
App. 255, 71 S. E. 9.
Statement of Amount. — That there is a variance in the
amount stated in the mortgage and that stated in the affi-
davit for foreclosure, does not make the foreclosure void.
If the amount claimed in the affidavit be too large, the
defendant or an opposing creditor can contest the amount
and have it reduced. Vance v. Roberts, 86 Ga. 457, 12 S.
E- 653.
Same — No Foreclosure for Debt Owing to One Not Holder
of Mortgage. — "This section clearly contemplates that the
affidavit shall be made as to the amount of principal and
interest due to the holder of the mortgage; and it follows
that a chattel mortgage can not be foreclosed, under the
statutory proceeding, for a debt owing to any one other
than- the holder of the mortgage." Jones v. Norton, 136
Ga. 835, 840, 72 S. E. 337.
Mortgage Given by Trustee. — Where a chattel mortgage
was given by C, trustee for E. C, and the affidavit to
foreclose it alleged that E- C. was indebted, etc., C. being
her agent, and credit having been given to the principal,
such foreclosure was insufficient, and was properly dis-
missed. Nor could this foreclosure be amended. Duke v.
Culpepper, 72 Ga. 842.
Affidavit on Back of Mortgage. — Sufficiency of state-
merits where the affidavit to foreclose a mortgage was
written on the back thereof, it was annexed thereto within
the meaning of this section. And where such endorsement
states that the affiant is the holder and owner of the mort-
gage that the mortgagor owes the affiant a specified sum
(stating the exact amount which the mortgage was to
secure) and that the affidavit is made to foreclose the mort-
gage on the property therein described, such affidavit is
in substantial compliance with this section and is sufficient.
Lilly v. Willis, 73 Ga. 139.
Foreclosure on Copy of Mortgage. — When an original
mortgage of personal property has been lost or destroyed,
the mortgage may be foreclosed on a certified copy from
the record of the mortgage, under this section. Holt v.
Holt, 23 Ga. 5.
Same — Verification of Copy. — The copy of the mortgage,
attached to the foreclosure affidavit, was verified by the
statement in the affidavit. Hardy v. Luke, 18 Ga. App.
423, 89 S. E. 540.
A copy is not sufficiently verified under this section by
a certificate signed by the attorney for the mortgagee and
by the attesting officer which recites merely: "I hereby
certify on oath that the above is true and correct copy of
the original mortgage which is now in my possession." Hil-
lis v. Comer & Co., 14 Ga. App. 30, 79 S. E- 930.
Petition Without Note Attached. — A petition to foreclose
a mortgage given to secure a note, which note is not at-
tached to the petition, and the amount of indebtedness and
rate of interest do not appear, was subject to general de-
murrer. Kern v. Herring, 145 Ga. 776, 89 S. E. 829.
IV. EXECUTION AND SHERIFF'S DUTY.
The issuing of an execution is essential to a complete
foreclosure of a chattel mortgage under this section. The
making of the affidavit required by law will not alone con-
stitute a foreclosure. Devaughn v. Byrom, 110 Ga. 904, 36
S. E- 267.
Affidavit Before Clerk — Execution Without Order from
Judge. — Under this section the affidavit to foreclose a mort-
gage on personalty may be made before the clerk of the
superior court, and execution may thereupon issue without
any order from the judge. Cbamberlin & Co. v. Beck, etc.,
Co., 68 Ga. 346.
Execution is Final Process. — This section provides for is-
suance of an execution under which the property shall be
levied on and sold, upon filing with the clerk of the court
the mortgage or a copy thereof with an affidavit attached
as prescribed. This is a summary remedy, and the fi. fa.
is final process which may be levied immediately, without
any provision for the holder of the note to give notice as
prescribed in § 4252. Watters & Co. v. O'Neill, 151 Ga.
680, 682, 108 S. E- 35.
Levy of Execution by Deputy Sheriff. — A deputy sheriff
could levy an execution under this section, even before Acts
1892, pp. 62, 63, which amended this section and § 3290. This
[8
act seems to be unnecessary. Jones v. Rountree, 96 Ga.
231, 23 S. E. 311. See ante, this note, "Editor's Note."
Directing Sheriff to Sell. — A direction in a mortgage fi.
fa. that of the personalty covered thereby the sheriff make
a specified sum, is in effect a direction to sell for that pur.
pose. Chamberlin & Co. v. Beck, etc., Co., 68 Ga. 346.
Omissions or irregularities on the part of the sheriff are
not chargeable to the buyer. The only questions with which
a purchaser is concerned are the judgment, the levy, and
the delivery of the property, all other questions are between
the parties to the judgment and the sheriff. Parr, etc.,
Furniture Co. v. Barnett, 16 Ga. App. 550, 85 S. E. 823.
§ 3287. (§ 2754.) Foreclosure before debt due.
— Whenever process of attachment can be le-
gally sued out against any person upon any debt
or demand secured by mortgage on personal
property or whenever the purchaser of mort-
gaged property is seeking to remove the same
beyond the limits of the county, or when the de-
fendant is seeking to fraudulently dispose, or is
fraudulently disposing of said mortgaged prop-
erty, and a disposing of said property will lessen
the security, it shall be lawful for the creditor to
foreclose his mortgage in the manner now pre-
scribed by law, except that the affidavit need not
state that the debt or demand is due, but shall
state that the debtor has placed himself in some
one of the positions where process of attachment
could legally issue against him, or when, the de-
fendant is disposing, or seeking to dispose, of
said mortgaged property, and a disposing of said
property will lessen the security, and shall state
the amount of the debt or demand claimed, and
when the same will be due. Acts 1902, p. 53;
1882-3, p. 109.
Cross References — See 1 Cum. Dig. 256, 3 Cum. Dig. 608,
611. As to grounds of attachment, see § 5055. As to at-
tachment for purchase-money, see § 5084. As to attach-
ments where debtor is fraudulently disposing of his prop-
erty, see § 5088.
Affidavit Must Show that Defendants are Purchasers. —
An allegation in an affidavit for the foreclosure of a mort-
gage before maturity of the debt, that the "defendants" are
about to remove the mortgaged property beyond the limits
of the county, is not a compliance with this section where
the affidavit does not show that the defendants are pur-
chasers of the mortgaged property. Upchurch v. Nichols,
15 Ga. App. 359, 83 S. E. 273.
Sufficiency of Statement as to when Debt Due The re-
quirement in this section that the affidavit shall state when
the amount of the debt or demand "will be due," was suffi-
ciently met by the assertion in the affidavit of foreclosure
that "there is now due on said mortgage the sum of $500
principal and $15 interest, and that the amount of said
several sums is now due." Hardy v. Luke, 18 Ga. App.
423, 89 S. E. 540.
Showing Defendant's Intention to Make Fraudulent Dis-
posal.—Where a chattel mortgage is foreclosed and levied
before its maturity, under this section and § 5055, upon the
grounds that the mortgagor is actually disposing or at-
tempting to dispose of the mortgaged property so as to
lessen the security, and that he is about to remove from
the county of his residence, it is not necessary for the plain-
tiff to show that the defendant was attempting to dispose
of the property or was about to remove from the county on
the very day upon which the affidavit to obtain the fore-
closure was made. It is sufficient to show the existence of
such a present design or intention and the defendant's pur-
pose to carry it into execution at or about the time of the
foreclosure. Citing Perryman v. Pope, 102 Ga. 502, 505, 31
S. E. 37; Stix v. Pump, 36 Ga. 526, 531; Nichols v Wards
27 Ga. App. 501, 108 S. E. 832.
Amendment of Affidavit. — An affidavit to foreclose a
mortgage under this section stating that the mortgagor has
"placed himself in some one of the positions where proc-
ess of attachment could legally issue against him," is
amendable. Hardy v. Luke, 18 Ga. App. 423, 89 S. E. 540
Bainbridge Stock Co. v. Krause-McFarlin Co., 8 Ga. App!
220, 68 S. E. 1013. And the plaintiff should be allowed to
amend by stating that the defendant was a nonresident of
the state, and that this was the ground relied on. Bain-
bridge Stock Co. v. Krause-McFarlin Co., 8 Ga Add ^0
68 S. E. 1013. ■ . '
79 ]
§ 3288
MORTGAGES OF PERSONALTY
§ 3292
And an affidavit alleging that the defendant "resides oiu
of the state" alleges a ground of attachment, if the further
allegation that the mortgagor has placed himself in a posi-
tion where process of attachment could legally issue against
him is a necessary averment, it may be added by amend-
ment. Hardy v. Luke, 18 Ga. App. 423, 89 S. E- 540.
When Bond Required.— The bond required by § 3304 is
required where an interested party other than the mort-
gagor seeks to interpose an illegality, or where mortgagor
is liable to attachment, etc., under this section. Hayes v.
Savannah Chemical Co., 17 Ga. App. 376, 86 S. E. 1073.
§ 3288. (§ 2755.) Proceedings as to levy and
sale. — All subsequent proceedings respecting the
levy and sale of the mortgaged property shall
be conducted in the manner now prescribed by
law, and the money realized from the sale of said
property shall be distributed by the proper of-
ficer under the terms and rules now prescribed
by law, except that the same shall not be paid
over to the plaintiff in fi. fa. until the debt se-
cured by the mortgage shall become due. Acts
1882-3, p. 109.
As to debts due by instalments, see § 3272. As to when
proceeds of sale of mortgaged property may be retained by
court, see § 3285.
§ 3289. (§ 2756.) Defendant may file affidavit
of illegality. — After the levy of the execution on
the mortgaged property, the defendant may file
his affidavit of illegality, in which he may avail
himself of any defense that he could have set up
in an ordinary suit upon the demand secured by
the mortgage, and show that he is not justly in-
debted to the plaintiff in the sum claimed in said
affidavit of foreclosure. The subsequent pro-
ceedings, as to giving bond and the trial of the
issue made in said case, shall be conducted in the
manner prescribed by section 3304 of the Code.
Acts 1882-3, p. 109.
See § 3300 and notes thereto. As to how illegality of exe-
cutions taken, see § 5305.
In Crawford v. Scott, 137 Ga. 760, 74 S. E. 520, it was
held that it was error to dismiss an affidavit of illegality,
on motion, on the ground that it was not the proper remedy
of the defendant,, without passing upon its merits.
Cited in Anderson v. Hilton, etc., Co., 121 Ga. 688, 49 S.
E. 725; Berry v. Robinson, 122 Ga. 575, 50 S. E- 378; Berck-
mans v. Tarnok, 151 Ga. 117, 121, 106 S. E- 2.
§ 3290. (§ 2757.) Levy and sale of property. —
When the execution shall be delivered to the
sheriff or his deputy, or coroner, as the case may
be, it shall be his duty to levy on the mortgaged
property wheresoever the same may be found,
and after advertising the same in one or more
public gazettes of this State weekly for four
weeks before the day of sale, the said sheriff or
his deputy, or coroner, shall put up and expose
said property to sale at the time and place and
in the same manner as govern in case of sheriff's
sales. Act 1799, Cobb, 571; Acts 1866, p. 163;
1880-1, p. 56.
See 3 Cum. Dig. 618.
Editor's Note — Although the codifiers failed to include the
Acts of 1892, p. 63 on the margin of this section, yet it is
an amendment to it. The words "or his deputy" following
the word "sheriff" were added by this act, although the
case of Jones v. Rountree, 96 Ga. 231, 23 S. E. 311, holds
that this amendment was unnecessary, and that a deputy
sheriff could levy an execution under this section before
the Act.
Entry Not Stating County. — Where upon an execution,
there appears an entry of levy, signed by a deputy sheriff,
but not stating in what county the levy was made, there
will be a presumption, until the contrary appears, that the
officer has not exceeded his authority, and that the seizure
was within his bailiwick. Booker v. Bass, 127 Ga. 133, 56 S.
E. 283.
Duty to Levy — Failure of Mortgagor to Point Out Prop-
erty.— While it is true that, when a mortgage is foreclosed
and the fi. fa. placed in the hands of the levying officer, it
is his duty to find and levy upon the property, and a fail-
ure of the mortgagor either to produce or point it out to
the officer will not be an offense, yet it may be a very
strong circumstance to indicate fraud, if the mortgagor will
not assist the officer to find the property. Coleman v. Al-
len, 79 Ga. 637, 5 S. E. 204.
Variance of the levy from the mortgage in describing the
property will not render the levy illegal, where both descrip-
tions are fairly applicable to the property. Smith v. Camp,
84 Ga. 117, 10 S. E- 539.
Dismissal of Levy as to Some of Property. — Where a
mortgage of personalty embraces various items of property,
all of which are levied upon under the mortgage fi. fa., the
dismissal of the levy as to some of the property and its
restoration to the mortgagor by the levying officer under
instruction from the plaintiff's attorney, will not defeat the
right of the mortgagee to sell the residue of the property,,
provided any sum would remain due on the mortgage debt
after deducting the value of the property so released from
the levy and returned to the mortgagor. Lamar v. Cole-
man, 88 Ga. 417, 14 S. E. 608.
Advertising Property. — This section should be construed
with §§ 6062, 6067, which deal generally with the advertise-
ment of all property by the sheriff. Construing these sec-
tions together, it would seem that it is not sufficient to ad-
vertise mortgaged property in any public gazette of this
state, but that it must be advertised in a newspaper pub-
lished at the county site of said county, if there be such,
and if there be no such paper published in the county, then
in the nearest newspaper having the largest or a general
circulation in such county. Rish v. Clements, 21 Ga. App.
287, 290, 94 S. E. 318.
Same — When Property Perishable or Expensive to Keep.
— This section requires sales to be advertised for four weeks,
but by special order they may take place, where the prop-
erty is perishable or expensive to keep, after ten days ad-
vertisement. Kimbrell v. Walters' Sons & Co., 86 Ga. 99,
101, 12 S. E. 305.
Same — Rule against Sheriffs. — Where a sheriff fails to ad-
vertise and sell under this section goods levied on under a
mortgage fi. fa. on the 10th of April, 1871, until the first
Tuesday in October, upon the ground that the defendant
notified him that he would apply for a homestead exemp-
tion in said property, which exemption was not set apart
until September 19th, 1871, upon application in behalf of
plaintiffs in fi. fa., a rule absolute should be issued against
him. Kimbro & Co. v. Edmondson, 46 Ga. 130.
Cited in Dawson v. Garland, 70 Ga. 447; Brantley v.
Baker, 75 Ga. 676.
§ 3291. (§ 2758.) Mortgage fi. fa. may claim
money, when. — If other fi. fas. are levied on the
mortgaged property, and the same is sold, the
mortgage fi. fa. may nevertheless claim the pro-
ceeds of the sale if its lien is superior.
See notes to § 3274. Stated in Brunswick, etc., Co. v. Nat.
Bank, 102 Ga. 776, 781, 29 S. E- 688; Ragan v. Coley, 4 Ga.
App. 421, 422, 61 S. E. 862.
§ 3292. (§ 2759.) Mortgaged property, when
sold without foreclosure. — If a mortgage on
realty or personalty is not foreclosed, and the
equity of redemption is levied on by other fi. fas.,
by consent of the mortgagor and mortgagee and
the plaintiff in the fi. fa. levied, the entire estate
may be sold, and the mortgagee claim under his
lien in the same manner as if his mortgage were
foreclosed.
See notes to § 3274.
Necessity for Consent. — Where the equity of redemption
is levied on, it requires the consent of the mortgagor, mort-
gagee, and plaintiff in fi. fa. under this section, to sell the
entire interest in the property so as to free the same from
the lien of the mortgage. Milner v. Pitts, 117 Ga. 794, 45
S. E. 67. See also, DeVaughn v. Byrom, 110 Ga. 904, 36
S. E. 267; Hynds Co. v. Oglesby Co., 93 Ga. 542, 21 S. E- 63.
Same — Reason for Rule.— The reason for the consent rule
is patent. In the first place, the mortgage creditor with an
unforeclosed mortgage is not in a position to assert a claim
to the fund. Generally, a creditor can not claim the pro-
ceeds of a sale, when he has not the power himself to en-
force a sale. Again, the debtor has the right under the law
to insist upon a foreclosure before his property can be
seized to satisfy the mortgage, and has the privilege of
[ 880 ]
5 3293
MORTGAGES OF PERSONALTY
§ 3296
redeeming the property at any time pending the proceed-
ings to foreclose and to sell. Hence, the section requires
nis consent, as well as the mortgagee's, before a sale can
iivest this special lien. Brunswick Sav., etc., Co. v. Nat.
Bank, 102 Ga. 776, 780, 29 S. E- 088.
Consent Need Not Be in Writing.— It is not necessary,
under this section, that the consent of the mortgagor, mort-
gagee and plaintiff in fi. fa., levied, to sell the entire fee in
the land levied on, should be in writing. Goode v. Rawl-
ings, 44 Ga. 593.
To deprive mortgagees of the priority acquired at a sale
ay consent, the other creditors must show clearly a superior
squity. Baker v. Wimpee, 22 Ga. 69.
Lien of Mortgage Older than Judgment.— A mortgagee
sued the mortgage notes to judgment and had the execu-
tion levied on the premises covered by the mortgage. By
virtue of an agreement between the mortgagor and mort-
gagee, who was also plaintiff in fi. fa., the entire estate
was sold; and it brought full value. Just prior to the sale
i third person lodged with the sheriff a general common -
law judgment against the mortgagor, of date younger than
the mortgage but older than the judgment based on the
mortgage debt, and ordered the sheriff to hold up the fund
arising from the sale. It was held, that on a rule brought
against the sheriff for a distribution of the fund, the mort-
gage should first be paid and the residue applied to the
judgment of the intervenor. Both judgment creditors have
liens, but the lien of the mortgage is older, and is there-
fore entitled to priority. Hughes v. Mount Vernon Bank,
4 Ga. App. 23, 60 S. E- 809.
Sale by Virtue of Execution on Junior Judgment. — The
sale of land by virtue of execution issued on a judgment
junior to a mortgage, not foreclosed, conveys to the pur-
chaser only the property sold, which, in this state, is the
equity of redemption, or its equivalent, which is the estate
in the land subject to the mortgage debt, and such sale
divests the lien of a judgment older than the mortgage, only
upon that interest or estate in the land which is sold.
Tarver v. Ellison, 57 Ga. 55.
Sale by Virtue of Execution on Older Judgment. — If there
be not money enough raised from the sale of the equity of
redemption, or interest in the land subject to the mortgage,
to pay off the judgment which is older than the mortgage,
an execution issued upon such older judgment may be
levied upon the residue of the estate in the land, and be-
ing older than the mortgage, it will sell the land free from
its incumbrance, and the title of the purchaser will be good
against the mortgage. Tarver v. Ellison, 57 Ga. 55.
Sale of Entire Estate After Sale of Equity of Redemp-
tion.— Under this section, the mortgagor can not, after a
sale of the equity of redemption by joining in a consent with
the mortgagee, lawfully cause the entire estate in the land
to be sold and conveyed under another common -law judg-
ment in favor of the mortgagee against him. Hitch v.
Bailey, 115 Ga. 891, 42 S. E- 252.
Claiming Money Arising from Sale of Property Not Mort-
gaged.— Mortgagees may waive the lien of their mortgages
and claim the money with consent of mortgagor, without
foreclosure, but they can not claim, against the rights of
other judgment creditors, even with the consent of the de-
fendant, money arising from the sale of property not mort-
gaged. Byars v. Bancroft, 22 Ga. 34.
Mortgagee Abandoning Lien and Claiming Proceeds. —
Until foreclosed, a younger fi. fa. can sell only the equity
of redemption, unless the mortgagee abandons his lien and
suffers the entire property to be sold, coming in for distri-
bution of the proceeds. Except by agreement, the mortga-
gee can not claim the proceeds of such sale. Harwell v.
Fitts, 20 Ga. 723.
Sales by Receivers. — This section does not apply to sales
by receivers, the statute being restricted in its operations to
sales where the equity of redemption is levied on under an
execution. McLaughlin v. Taylor, 115 Ga. 671, 672, 42 S.
E. 30.
Retention of Title Note. — Where a firm bought certain
mules, and gave to the vendors a purchase-money note in
which it was provided that the title should remain in the
latter until payment and the mules were sold under later
common-law executions, the facts do not make a case fall-
ing within this section. Browder v. Blake, 135 Ga. 71, 68
S. E. 837.
§ 3293. (§ 2760.) Foreclosure before justice of
the peace. — Any person having a mortgage on
personal property to secure a debt not exceeding
one hundred dollars principal, and desiring to
foreclose the same, may himself, his agent, or
attorney, make affidavit of the amount of princi-
[8
pal and interest due on such mortgage, which
affidavit shall be annexed to such mortgage; and
when such mortgage, or verified copy, with such
affidavit annexed thereto, shall be tiled with any
justice of the peace, or notary public who is ex-
officio justice of the peace, in the county where
the mortgagor resides, if a resident of this State,
or, if not a resident of this State, then in the
county where such mortgaged property may be,
it shall be the duty of such magistrate to issue
an execution, directed to all and singular the con-
stables of this State, commanding the sale of the
property to satisfy the principal and interest,
together with the costs of the proceedings to
foreclose said mortgage. Acts 1878-9, p. 152.
See § 3286 and notes thereto.
Concurrent Jurisdiction with County Court. — A county
court has no jurisdiction to try and determine an issue
made upon the foreclosure of a chattel mortgage and a
counter- affidavit filed thereto, where the amount involved
is less than fifty dollars. See § 4775 (24). In such cases, the
justice's court of the district of the defendant's residence hari
jurisdiction under this section. Where the principal sum
secured does not exceed one hundred dollars, but is more
than fifty dollars, the two courts have concurrent juris-
diction. Aycock v. Subers, 73 Ga. 807.
Return to Proper Court. — Where a chattel mortgage was
foreclosed in a justice's court under this section, and upon
the levying of the execution issued thereunder a claim was
interposed, it was properly returned to the court where the
foreclosure took place and whence the execution issued.
Ridling v. Stewart, 77 Ga. 539.
Filing Papers with Justice. — Where an affidavit to fore-
close a chattel mortgage and the mortgage itself have been
handed to a justice of the peace, this is a sufficient "filing"
of these papers with that officer. Adams v. Goodwin, 99
Ga. 138, 25 S. E. 24.
Cited or applied in Devaughn v. Byrom, 110 Ga. 904, 36 S.
267; Berry v. Robinson, 122 Ga. 575, 50 S. E- 378; Kelly v.
Overland Co., 25 Ga. App. 277, 103 S. E- 41; Hamilton v.
Kerr, 84 Ga. 105, 10 S. E- 502.
§ 3294. (§ 2761.) Levy and sale of property. —
When the execution mentioned in the preceding
section shall be delivered to a constable, it shall be
his duty to levy on the property wherever it may
be found, and after advertising the same, giving
full description of the property to be sold, and
process under which he is proceeding, by written
advertisement at three or more public places in
the district, in which the property may be found,
for ten days next preceding such sale, he shall
put up and expose to sale said property as herein
provided: Provided, such sale shall be had with-
in the legal hours of sale on a regular court day,
and at the usual place of holding justice courts
for said district; the said constable shall put up
and expose said property to sale at the time and
place, and in the same manner, as now govern
at constable's sales. Acts 1878-9, p. 152; 1882-3,
p 67.
§ 3295. (§ 2762.) Defenses by mortgagor.—
Such mortgagor may avail himself of any defense
he may have to such foreclosure, in the same
manner and upon the same conditions as now
allowed by law in case of foreclosure of chattel
mortgages in the superior courts; and whenever
any such defense is filed by such mortgagor, the
magistrate issuing such execution shall have
power and jurisdiction to hear and determine the
issues made thereon, as in other cases at law.
Acts 1878-9, p. 152.
See § 3300 and notes thereto.
Cited in Berry v. Robinson, 122 Ga. 575, 50 S. E. 378.
§ 3296. (§ 2763.) Mortgagor to have notice. —
It shall be the duty of the justice of the peace, or
§ 3297
DEFENSES, WHEN AND HOW MADE
§ 3300
notary public, with whom the affidavit and mort-
gage are filed, to give notice to the mortgagor of
said proceedings at the time of issuing execution.
Acts 1880-1, p. 126; 1882-3, p. 67.
Execution Reciting Notice.— This section does not require
that the execution shall recite that the notice has been
given. Spooner v. Coachman, 18 Ga. App. 705, 90 S. E. 373.
Special Plea Raising Issue on Appeal. — Where a mort-
gage is foreclosed in a justice's court and an affidavit of
illegality is interposed by the defendant, and it does not
appear from the record that the failure of the justice of the
peace to give notice to the mortgagor, in compliance with
this section was therein urged or suggested as a ground of
defense, or by way of abatement, and where it appears that
the case was appealed by consent to the superior court, and
several months thereafter a plea, denominated by the de-
fendant a "special plea in bar," was filed in the superior
court, which raised for the first time the issue that the
mortgage foreclosure was invalid because of the failure to
give such notice, and the court upon motion struck the plea,
there is no merit in the exceptions pendente lite complaining
of his action in so doing, and of his refusal to dismiss the
levy. Spooner v. Coachman, 18 Ga. App. 70S, 90 S. E. 373.
Same — Testimony Showing No Notice. — Since there was
no plea raising issue of notice after the court had dismissed
the plea in abatement because it was not filed at the time
fixed by law, the court did not err in declining to admit
testimony tending to prove that no notice had been given
the mortgagor by the justice of the peace at the time the
execution was issued thereon. Spooner v. Coachman, 18
Ga. App. 705, 90 S. E. 373.
Waiver of Notice.— As there was no motion to dismiss the
levy on the ground that the notice prescribed by this sec-
tion had not been given, and the defendant in fi. fa., al-
though reciting such failure, entered a plea to the merits
without actual protestation, the failure to give the notice
referred to must be taken as waived. Futch v. Taylor, 22
Ga. App. 441, 96 S. E- 183; McFarlin v. Reeves, 10 Ga. App.
581, 73 S. E. 862.
§ 3297. (§ 2764.) Fees of justice and constables-
— In all foreclosures of chattel mortgages before
justices of the peace, as provided by the four
preceding sections, the fees of the justice in each
case shall be one dollar for the entire proceeding,
whether litigated or not; and the fees of the con-
stable in each case shall be the same as in pro-
ceedings with a common-law fi. fa. Acts 1880-1,
p. 86.
§ 3298. Bill of sale or written contract retain-
ing title to secure debt, foreclosure of. — The
owner of any bill of sale to personal property to
secure a debt (or written contract where title is
retained to personal property to secure a debt)
may foreclose the same in the same manner as
mortgages on personal property are now fore-
closed under the laws of this State. Acts 1899,
p. 82; 1921, p. 114.
Cross References. — See 3 Cum. Dig. 625. As to foreclosure
before justice of peace, see § 3293. As to sales to secure
debts, see § 3306.
Editor's Note. — This section was amended quite sub-
stantially by the Acts of 1921, p. 114. The phrase "or writ-
ten contract retaining title" following the word "sale" in
the catchline was included by this amendment. In the body
of the section, the phrase, "or written contract where title
is retained to personal property to secure a debt," follow-
ing the word "debt," was added, and the words "where the
principal sum does not exceed one hundred dollars," ap-
pearing in the code of 1910, were omitted.
Remedy by Section Not Exclusive. — The remedy provided
in this section is not exclusive. The owner has the right
also to bring trover. Hill v. Marshall, 18 Ga. App. 652, 90
S. E. 175.
Retention of Title Note. — A promissory note given by a
purchaser of personal property, in which it is agreed that
title shall remain in the seller until the purchase-money is
paid, is not a bill of sale, and therefore can not be fore-
closed in a justice's court under this section. Wynn v. Ty-
ner, 139 Ga. 765, 78 S. E. 185; Berry v. Robinson, 122 Ga.
575, 50 S. E. 378.
Showing that Bill Given to Secure Debt.— An absolute bill
of sale intended to secure a debt not exceeding $100 may be
foreclosed as provided in this section, whether the fact that
it is intended as security is shown by a bond to reconvey,
or by other appropriate evidence. Denton Bros. v. Shields,
120 Ga. 1076, 48 S. E. 423.
Where it appeared from the evidence offered by the state,
in connection with the fi. fa., that it was issued upon a pro-
ceeding, under this section to foreclose a bill of sale which
was • absolute upon its face, and that the affidavit upon
which the fi. fa. was based failed to show that the bill of
sale was given to secure a debt, the fi. fa. was not legal
process, and, upon proper objection made by the accused,
should not have been admitted in evidence. Searcy v. State,
114 Ga. 270, 40 S. E. 235.
Variance in Amount. — Where there is a variance between
the amount stated in the bill of sale and the amount stated
in the affidavit of foreclosure, the foreclosure is not void
for this reason. If the amount claimed in the affidavit be
too large, the defendant or an opposing creditor can contest
the amount and have it reduced. Robinson v. Bothwell
Grocery Co., 22 Ga. App. 56, 95 S. E. 316.
Applied in Browder v. Blake, 135 Ga. 71, 68 S. E. 837;
Kelly v. Overland Co., 25 Ga. App. 277, 103 S. E. 41.
§ 3299. After proceedings, — In the event any
such bill of sale is foreclosed as above provided,
the after proceedings of the said foreclosure shall
be the same as proceedings to foreclose mort-
gages, with the same rights to mortgagors to de-
fend in the manner as defenses to foreclosure of
mortgages as are now provided by the laws of
this State.
See §§ 3294, 3295, 3298.
SECTION 2.
Of the Defenses, When and How Made.
§ 3300. (§ 2765.) Affidavit of illegality to mort-
gage fi. fa. — When an execution shall issue upon
the foreclosure of a mortgage on personal prop-
erty, as hereinbefore directed, the mortgagor, or
his special agent, may file his affidavit of ille-
gality to such execution, in which affidavit he may
set up and avail himself of any defense which he
might have set up, according to law, in an ordi-
nary suit upon the demand secured by the mort-
gage, and which goes to show that the amount
claimed is not due. Act 1799, Cobb, 571.
For full treatment, see 3 Cum. Dig. 613, 3 Enc. Dig. 114.
See also, §§ 3286, 3289.
Execution Final Unless Affidavit Filed. — Unless an exe-
cution, issued upon the foreclosure of a chattel mortgage,
be arrested by a counter-affidavit, it is final process. Col-
lier v. Blake, 16 Ga. App. 382, 85 S. E. 354; Ford v. Farga-
son, 120 Ga. 606, 48 S. E. 180.
Who Authorized to File Affidavit. — Under this section, the
only persons authorized to file a counter-affidavit are the
mortgagor, his special agent or legal representative, and a
creditor of the mortgagor. Ford v. Fargason, 120 Ga. 606,
48 S. E. 180.
Raising Defense for First Time. — Under this section, the
defendant is given the opportunity for the first time to make
his defense to the mortgage debt after the mortgage has
been foreclosed and the execution has been levied upon the
mortgaged property. Water v. Hughes, 131 Ga. 725, 63 S.
E. 214.
Equitable Defenses. — In a proceeding which is in some
measure, a substitute for a bill in equity, the defendant may
under this section rely upon any fact or principle of law
which would entitle him to relief in a court of equity. Duke
v. Culpepper, 72 Ga. 842, 845.
Damages for breach of contract in mismanaging estate
could be set up as a defense under this section, and a resort
to equity is unnecessary. Alston v. Wheatley, 47 Ga. 646.
Breach of Warranty.— Where there was no allegation of
a breach of warranty, and it did not appear that the war-
ranty was part of the consideration of the purchase, the
court did not err in striking the affidavit of illegality, by
which it was sought to set up the breach of warranty as a
defense, under this section. Cook v. Cobb, 22 Ga. App. 328,
95 S. E. 1022.
Recoupment and Set-Off.— While the mortgagor is per-
mitted to avail himself of a valid defense under this section
by .way of recoupment, he is not entitled to plead the de-
[ 882 ]
§ 3300
DEFENSES, WHEN AND HOW MADli
§ 3301
fense of set-off in such a summary proceeding, since the
latter defense is not one which goes to the justice of plain-
tiff's demand. Arnold v. Carter, 125 Ga. 319, 54 S. E. 177;
Mahone v. Elliott, 141 Ga. 214, 216, 80 S. E. 713; Futch v.
Taylor, 22 Ga. App. 441, 96 S. E. 183.
The general denial that the defendant was indebted set up
no defense under this section. Cook v. Cobb, 22 Ga. App.
328, 329, 95 S. E. 1022.
Alleging No Indebtedness and Want of Consideration. —
An affidavit of illegality to an execution alleging that the
deponent is not legally indebted to the plaintiff in any
amount, and that the mortgage foreclosed is utterly with-
out consideration and void, is, under this section good in
substance, and it was error to dismiss the same on a gen-
eral demurrer for want of sufficiency. Smith v. Walker, 93
Ga. 252, 18 S. E- 830.
Failure of Consideration and Set-Off. — It was error to
strike, on the ground that the same was insufficient in law,
an affidavit alleging facts showing failure of consideration
in the notes, and also setting up a set-off against the plain-
tiff's demand. Garner v. Cohen, 99 Ga. 78, 24 S. E. 851.
Payment of Debt. — By an affidavit of illegality under this
section, a defendant may resist an execution which has been
issued against him, upon the ground that the mortgage debt
bad been fully paid and satisfied before the execution was
issued. Mathews v. Gelders, 129 Ga. 103, 58 S. E. 649.
• Same — Enjoining Sale. — Where the remedy by affidavit of
illegality under this section is complete, an injunction will
not be granted to enjoin a sale, on the ground of payment.
Mathews v. Gelders, 129 Ga. 103, 58 S. E. 649.
Partial Payment. — It was erroneous to strike a paragraph
of the defendant's answer, alleging that in defense to the
foreclosure proceeding the defendant had filed an affidavit
of illegality, under this section, setting up partial payment
of the notes. Stevens v. Stembridge, 104 Ga. 619, 31 S. E-
413.
Directing Payment. — A mortgagor has the right to direct
that an unquestioned indebtedness due to him by the holder
of the mortgage shall be applied towards the payment of
the mortgage and the discharge of its lien, and such direc-
tion is equivalent to payment. McCook v. Laughlin, 9 Ga.
App. 550, 71 S. E. 917.
Attacking Order for Sale. — The allegations of the affi-
davit of illegality as to whether no order for the sale was
granted at all, or whether one was granted which was
averred to be illegal, and as to any illegality in the manner
of conducting the sale, were vague, general, and insufficient
to make any issue requiring submission to the jury. Armi-
stead v. Weaver, 140 Ga. 740, 79 S. E. 783.
Usury as Defense. — A plea that a mortgage is infected
with usury is a good plea under this section. Alston v.
Wheatley, 47 Ga. 646.
Claimant Filing Affidavit on New Issues. — Personalty
levied on under mortgage fi. fa., claimed and found sub-
ject, claimant being also a defendant in fi. fa., may file affi-
davit of illegality under this section on new issues. Harper
v. Grambling, etc., Co., 66 Ga. 236.
Wife Claiming Property Exempt — Husband Filing Affi-
davit.— Where the foreclosure was against husband and wife,
and the wife claimed the property levied on as exempt, an
affidavit of illegality under this section subsequently filed
by the husband, introducing a new issue, was properly dis-
missed on demurrer. Allen v. Frost, 59 Ga. 558.
Failure to Urge Claims at Foreclosure Does Not Prevent
Protection of this Section. — The husband and father's fail-
ure to urge the claims of his family in resistance to the fore-
closure of a mortgage upon exempt property, will not hinder
him from arresting a sale under the mortgage fi. fa. by
affidavit of illegality. Frost v. Borders, 59 Ga. 817.
Merits of Affidavit Must Be Passed On Before Dismissal
Proper. — It was held to be error to dismiss an affidavit of
illegality, on motion, on the ground that it was not the
proper remedy of the defendant, without passing upon its
merits. Crawford v. Scott, 137 Ga. 760, 74 S. E. 520.
Defect in Jurat — The jurat being no part of the affidavit,
of illegality under this section, a general demurrer to the
sufficiency of the affidavit will not reach a defect in the
jurat. Smith v. Walker, 93 Ga. 252, 18 S. E. 830.
Amendment of Affidavit — Amplifying Ground. — There was
no error in the allowance of an amendment to the affidavit
of illegality, which merely amplified a pre-existing ground
alleging payment. McCook v. Laughlin, 9 Ga. App. 550, 71
S. E. 917.
Amendment of Claim — Alleging No Indebtedness. — When
an execution is levied upon mortgaged property, and a
claim is interposed, the claimant can not, upon the trial of
the issue, amend the claim by alleging that the mortgagor
is not indebted to the mortgagee, nor will be allowed to
introduce testimony tending to show it. Collier v. VB'ake,
16 Ga. App. 382, 85 S. E. 354; Ford v. Fargason, 120 Ga.
606, 48 S. E. 180.
Amendment of Fi. Fa. — When a mortgage on personalty
has been foreclosed by affidavit, and a counter-affidavit has
been interposed and returned for trial, the fi. fa. is mesne
process, or in the nature of mesne process, and is amend-
able. Dawson v. Garland, 70 Ga. 447.
Cited in Weaver v. Roberson, 134 Ga. 149, 159, 67 S. E.
662; Dawson v. Planters Bank, 31 Ga. App. 530, 121 S. E.
242; Berckmans v. Tarnok, 151 Ga. 117, 121, 106 S. E. 2.
§ 3301. (§ 2766.) Replevy bond.— When an af-
fidavit of illegality shall be filed as in the preced-
ing section provided for, and the mortgagor, or his
special agent or attorney, shall give bond, with
good and sufficient security, in a sum not larger
than double the amount of the execution levied
(and when the property levied on is of less value
than the execution, the amount of the bond shall
be double the value of the property levied upon, at
a reasonable valuation to be judged by the levy-
ing officer), conditioned for the return of the
property when called for by the levying officer,
which bond shall be made payable to the plain-
tiff (who may sue thereon for condition broken),
the levying officer shall postpone the sale of said
property, and return all the proceedings and pa-
pers in the case to the court from which the exe-
cution issued, where the issue shall be tried as
other cases of illegality, and the jury shall be
sworn to give at least twenty-five per cent, dam-
ages to the plaintiff on the principal sum in case
it shall appear that the affidavit was made for
delay only; and when the mortgagor is unable
from poverty to give the bond as required and
security, and will make affidavit of the fact, stat-
ing also in said affidavit that he has been advised
and believes that his grounds of illegality will be
sustained, such affidavit shall be accepted by the
levying officer in lieu of the bond and security
hereinbefore provided for; but the property shall
remain in the hands of the levying officer, unless
sold under special order of court as in cases of
property that is perishable or that is expensive
to keep or liable to deteriorate from keeping. Act
1799, Cobb, 571; Acts 1890-1, p. 81.
Cross References. — For full treatment, see 6 Cum. Dig.
386, 6 Enc. Dig. 379. As to measure of damages on forth-
coming bond, see § 6043. As to validity of bonds taken by
officers, see § 6041.
Condition Precedent — Substantial Compliance. — The giv-
ing of a bond is a condition precedent to the return of the
papers to court for trial, where an affidavit of illegality is
tendered to the execution issued on the foreclosure of a
chattel mortgage, and if the bond be not conditioned sub-
stantially as this section requires, the papers ought not to
be returned to court and the sale suspended. Brantley v.
Baker, 75 Ga. 676; Glass v. Austin, 28 Ga. App. 311, 111 S.
E. 84.
Conditioned for Return and Payable to Plaintiff. — The
requirements of this section are not met by a bond the
condition of which is that should the defendant "well and
truly deliver said property so levied upon at the time and
place of sale, in the event .said illegality shall be dismissed
by the court or withdrawn, then this obligation to be void,
else of full force and effect," and which is made payable to
the sheriff of the county. Glass v. Austin, 28 Ga. App. 311,
111 S. E. 84.
But, such a bond, while not a good statutory bond, is
good as a common-law obligation. Kinney v. Avery & Co.,
14 Ga. App. 180, 80 S. E. 663.
And, in Salmon v. Lynn, 16 Ga. App. 298, 85 S. E. 203, it
was held that, whether or not a bond was by its terms
made payable to the plaintiff, as provided by this section,
is immaterial, since such a bond would be a good common-
law bond, and suit could have been brought on it in the
name of the sheriff [levying officer] for the use of plaintiff
in fi. fa.
Acceptance by Levying Officer. — In order to make a bond
given under this section a binding contract between the par-
[ 883 ]
§ 3301
DEFENSES, WHEN AND HOW MADE
§ 3304
ties and to render the person signing the bond as an obh
gor liable thereon, it is essential, not only that the bond
should be signed by the obligors, but that the same should
be accepted by the levying officer as a forthcoming bond.
Glass v. Austin, 28 Ga. App. 311, 111 S. E. 84.
The mere fact that the sheriff officially attested a bond as
that prescribed in this section would not make the same a
binding contract upon the parties whose names were there-
to signed. His acceptance of it would be essential to giv-
ing it this effect. Fountain v. Napier Brothers, 109 Ga.
225, 34 S. E- 351.
Amendment.— A bond was amendable by changing obligee
and condition, before final judgment, so as to make it con-
form to the requirements of the statute. Gelders v.
Mathews, 6 Ga. App. 144, 64 S. E. 576.
A bond given under this section, falls under § 5707, and
if the penalty be too small and the condition variant from
that prescribed by statute, it is amendable in both respects.
Lytle v. DeVaughn, 81 Ga. 226, 7 S. E. 281.
The bond required by § 3304 is not required where an affi-
davit of illegality is interposed by the mortgagor to the
foreclosure of a mortgage on personal property, and where
the defendant has executed a replevy bond as provided for
by this section. Hayes v. Savannah Chemical Co., 17 Ga.
App. 376, 86 S. E. 1073.
Liability of Obligors on Breach — Defenses. — In an action
for an alleged breach of a bond, executed under the pro-
visions of this section, the obligors are liable for the full
value of the property replevied, if it does not exceed the
amount of the mortgage debt, or, in case it does exceed
such debt, then in a sum equal to the latter, unless they
show affirmatively that their failure to return the property
when called for by the levying officer was caused by the
act of God, and was in nowise the result of their conduct
or negligence. Carr v. Houston Guano, etc., Co., 105 Ga.
268, 31 S. E. 178. See also Early v. Hampton, 15 Ga. App.
95, 82 S. E. 669.
Same — Where Property Taken by Other Process. — If prop
erty described in a bond be taken from the custody of the
principal obligor under superior legal process, this may be
shown as a defense to an action on the bond. But if the
principal obligor surrenders the property under a process
which is invalid or which for any reason is inferior to the
lien of the mortgage, this would be no defense to a suit
upon the bond. Kinney v. Avery & Co., 14 Ga. App. 180,
80 S. E- 663.
Demand Not Necessary to Establish Breach. — There is
no law in Georgia requiring a demand by the sheriff on
either the principal or the surety on a forthcoming bond,
in order to establish a breach of the bond. Legal adver-
tisement of the property described in the bond is sufficient
notice to the parties, and proof of the advertisement will
suffice to show such breach, if the property be not produced
at the time and place of sale. Early v. Hampton, 15 Ga.
App. 95, 82 S. E. 669. See also, Taylor v. Boynton, 7 Ga.
App. 233, 66 S. E. 5501; Hogan v. Morris, 7 Ga. App. 232.
66 S. E. 550.
When Estopped to Deny Recitals of Bond. — When defend-
ant gives a bond intended to be such as this section re-
quires in such cases, and thereupon the papers are re-
turned to court and the issue thus formed tried upon its
merits, the parties treating the bond as being in conformity
to the statute are estopped to deny its recitals. Stroud v.
Hancock, 116 Ga. 332, 42 S. E. 496.
Failure to Give Proper Bond or Pauper Affidavit. — Where
the affiant neither gave bond with security for the forth-
coming of the property nor made affidavit of his inability,
from poverty, to do so as required by this section, the affi-
davit of illegality was properly dismissed. Shannon v.
Vincent, 76 Ga. 837.
As no bond was given as required by this section, but
only a bond under § 6041, , and no pauper affidavit was filed,
the trial judge properly dismissed the affidavit of illegality.
Dawson v. Planters Bank, 31 Ga. App. 530, 121 S. E- 242.
Payment to the levying officer, by a mortgagor, of the
amount admitted to be due in his affidavit of illegality, is
not a condition precedent to its acceptance and return into
court for trial of the issues therein made. Waters v.
Hughes, 131 Ga. 725, 63 S. E. 214.
Failure to Replevy Property — Sale — Where a mortgage
is foreclosed in the statutory manner, and the defendant
interposes an affidavit of illegality, but fails to replevy the
property, it may be sold by special order of the court as
provided by this section. Armistead v. Weaver, 140 Ga.
740, 79 S. E. 783.
Section Has No Application to Common Law Executions.
— This section applies exclusively to levies under mortgage
foreclosures, and is not applicable to common law executions.
Crayton v. Fox, 100 Ga. 781, 782, 28 S. E- 510.
Controverting Levy- — A defendant in fi. fa. who has re-
cited a levy, both in his affidavit of illegality and the bond
given for the forthcoming of the property under this sec-
tion, will not be heard to controvert the fact of such levy
at the trial of the affidavit of illegality. Smith v. Camp, 84
Ga. 117, 10 S. E. 539.
When an attempt to foreclose a partnership mortgage is
made, the objecting partner may defend in the name of the
partnership, and to this end may in its behalf file a proper
affidavit of illegality and the statutory pauper affidavit in
lieu of the bond required of solvent defendants in such
cases, by this section. McCord Company v. Callaway Co.,
109 Ga. 796, 35 S. E. 171.
Affidavit Returned Without Order from Judge. — In dis-
missing an affidavit of illegality interposed under this sec-
tion, the ground of dismissal being that the affidavit was
returned into court without an order from the judge, it
was mere surplusage to add, "with leave to the defendant
to apply for such order." Haynes v. Richardson, 61 Ga.
390.
Damages for Plaintiff. — The court in effect instructed the
jury that if they found that the plaintiff was entitled to
damages, the amount should be 25 per cent, of the princi-
pal sum claimed. It was held, that the instruction was not
error against the defendant, since this section fixes the
measure of damages on affidavits of illegality arising on
foreclosures of chattel mortgages, when it appears that the
affidavit was made for delay only, "at not less than twenty-
five per cent, damages to the plaintiff on the principal sum."
Covington v. Case Threshing Machine Co., 26 Ga. App. 781,
107 S. E. 370.
Applied in Arnold v. Rhodes, 26 Ga. App. 86, 91, 105 S.
E. 453; Ellington v. Conrad, 29 -Ga. App. 139, 113 S. E. 822.
§ 3302. (§ 2767.) Sale of mortgaged property
and disposition of proceeds. — If the mortgagor
fails to set up and sustain his defense as herein-
before authorized, the mortgaged property shall
be sold, and the proceeds of the sale shall be ap-
plied to the judgment of said mortgage execu-
tion, unless such proceeds are claimed by some
other lien in the hands of the officer, entitled in
law to priority of payment; and if, after the sat-
isfaction of such fi. fa. or other lien, there may be
any surplus, the same shall be paid to the mort-
gagor or his agent. Act 1799, Cobb, 571.
. See notes to §§ 3283, 3284, 3290. See also 3 Cum. Dig. 619.
Cited in Cook v. Cobb, 22 Ga. App. 328, 329, 95 S. E- 1022.
§ 3303. (§ 2768.) Representative of deceased
mortgagee may foreclose. — When the holder of
a mortgage on personal property is dead, the
affidavit and proceedings to foreclose may be
made and prosecuted by his executor or admin-
istrator; and if the mortgagor be dead, his legal
representative may set up the same defenses
which he could do if living."
As to foreclosure of mortgage on real estate by represen-
tative of deceased mortgagee, see § 3277. As to proceedings
to foreclosure mortgage on real estate when mortgagor
dead, see § 3281.
Cited in Ford v. Fargason, 120 Ga. 606, 48 S. E- 180. See
notes of this case under § 3304.
§ 3304. (§ 2769.) How third person may con-
test mortgage lien. — If any creditor of the mort-
gagor, whether his debt be in judgment or not,
desires to contest the validity or fairness of the
mortgage lien or debt, he may make an affidavit
of the grounds upon which he relies to defeat
such mortgage, and upon filing the same with
the levying officer, together with a bond and
good security, payable to the mortgagee, and
conditioned to pay all costs and damages incurred
by the delay if the issue be found against the
contestant, it shall be the duty of such officer to
return the same to the court to which the mort-
gage fi. fa. is made returnable, to be tried in the
manner prescribed above for an affidavit of ille-
gality by the mortgagor.
Cross References. — See 3 Cum. Dig. 616. As to judgment
and s51e of mortgaged property, see § 3283. As to filing by
[ 884 ]
£ 3305
FORLECLOSURE IN EQUITY
§ 3305
defendant of affidavit of illegality, see § 3289. As to third
person defending mortgage, see § 3280. As to enforcements
of liens on realty, see § 3365.
Purpose of Section. — This section is a means provided for
creditors (including those who have no lien) to test the
validity and fairness of a mortgage which purports to have
been executed by one of their debtors, and which may be
injurious to their interest. Barkley v. May, 3 Ga. App. 101,
59 S. E- 440.
Applicable to Real and Chattel Mortgages. — The provi-
sions of this section "apply as well to mortgages upon real
property as to mortgages on personal property." Dumas V.
Tyus, 147 Ga. 307, 93 S. E- 894.
Applicable Whether Debt in Judgment or Not. — Where a
creditor of a mortgagor, whether his debt be in judgment
or not, desires to contest the validity or fairness of the mort-
gage lien claimed by another creditor, adequate remedy is
afforded by affidavit of illegality under this section. Dumas
v. Tyus, 147 Ga. 307, 93 S. E. 894.
Not Applicable to Determine Priority. — On the question
of priority between a judgment and mortgage, this section
is not applicable. Thompson v. Morgan, 82 Ga. 548, 9 S. E-
534; Barkley v. May, 3 Ga. App. 101, 59 S. E. 440.
Who May File Counter-Affidavit. — The only persons au-
thorized to file a counter-affidavit are the mortgagor, his
special agent or legal representative, and by this section a
creditor of the mortgagor. Ford v. Fargason, 120 Ga. 606,
-48 S. E. 180.
Third parties, not creditors of the mortgagors, do not
•come within this section. Allen v. Lathrop, 46 Ga. 134, 138.
Wife as Creditor of Husband. — Where a husband buys
land with his wife's funds and executes a mortgage on it,
the debt of which is usurious, the wife, as a creditor, may
avail herself of the remedy provided by this section. Parker
v. Bank, 107 Ga. 650, 34 S. E- 365.
Equity has no jurisdiction to grant an injunction or other
remedy, if there be any remedy under this section. Gate-
wood v. Bank, 49 Ga. 45, 46; Manheim v. Claflin & Co., 81
Ga. 129, 7 S. E. 284.
Right of Partner to Mortgage Partnership Property. —
Whether or not one partner, without the knowledge of the
other, can legally execute a mortgage on partnership prop-
erty to secure a firm debt, can ba tested as well at law
under this section as in equity by the unsecured creditors.
Heidingsfelder v. Slade, 60 Ga. 396.
Trustee in Bankruptcy Setting Up Usury in Bankrupt's
Mortgage.— Under § 3428, providing that the plea of usury
is personal, but that a creditor has no right to collect usuri-
ous interest from an insolvent debtor to the prejudice of
other creditors, and this section, the trustee in bankruptcy
ca/i set up usury in a mortgage executed by the bankrupt,
though reduced 4o judgment; but this does not invalidate
the mortgage, but would only reduce the amount collectible
on the fi. fa. Broach v. Mullis, 228 Fed. 551.
When Bond Required. — The bond provided for by this
section is required where an interested party other than the
mortgagor seeks to interpose an illegality, or where under
§ 3287 the debtor has placed himself in some one of the
positions in which process of attachment could legally issue
against him, or where the defendant is disposing or seek-
ing to dispose of the mortgaged property and such disposal
would lessen the security thereof. Hayes v. Savannah
Chemical Co., 17 Ga. App. 376, 86 3. E. 1073.
ARTICLE 4.
Foreclosure in Equity.
§ 3305. (§ 2770.) Foreclosure in equity.— The
bolder of any mortgage of real or personal prop-
erty, or both, whether as original mortgagee or
as executor, administrator, or assignee of the
original mortgagee, shall be at liberty to fore-
close such mortgagee in equity according to the
practice of courts in equitable proceedings, as
well as by the methods prescribed in the Code.
Acts 1880-1, p. 127.
Cross References.— See 8 Cum. Dig. 688, 9 Enc. Dig. 460.
As to transfer and foreclosure of liens, see §§ 3345-3347. As
to equitable remedy where party has legal rights, see §
4538.
History of Equitable Foreclosures. — Formerly the process
Df foreclosure of a mortgage in England was by bill in
:hancery. Bailey v. Lumpkin, 1 Ga. 392; Mahone v. Elliott,
141 Ga. 214, 80 S. E- 713. This was a well-defined branch of
equity jurisprudence. It was taken from the superior courts
by the adoption of the statutory method of foreclosing mort-
gages in cases where no special equitable relief was prayed
for. The effect of this section was to open the door of
equity again to parties wishing to foreclose mortgages. Tht-
holders of mortgages may now resort to equity for their
foreclosure, without alleging any special grounds of equit-
able interference. DeLay v. Latimer, 155 Ga. 463, 469, 117
S. E. 446.
Courts Have Fuller Power by This Section. — This
section allowing mortgages to be foreclosed in equity
conferred fuller powers upon the court by this mode of
procedure than it had at law; and in addition to the fore-
closure, a personal decree may be rendered against the
mortgagor. Clay v. Banks, 71 Ga. 363.
Purpose of Equitable Relief.— Equity readily receives the
"excuses of the mortgagor, not only for the purpose of giv-
ing him time to procure the money previously to the fore-
closure, but also for the purpose of opening the foreclosure.'
Golden v. Fowler, 26 Ga. 451.
Where Foreclosure Already Had at Law. — Where the
creditor has an honest mortgage on personalty, and has
foreclosed the same at law, he has no occasion, either as a
substitute for, or in aid of his foreclosure proceeding, to
file a bill in a court of equity under this section in order to
realize the fruits of his foreclosure as against fraudulent
mortgages of prior date on the same property, which are
also foreclosed, and under which the property has been
seized and is about to be sold. Manheim v. Claflin & Co.,
81 Ga. 129, 7 S. E. 284.
Mortgage of Realty in This State Executed in Another
State. — When a mortgage of realty in this state, is exe-
cuted in another state before a commissioner of deeds only,
without any other witness, a court of chancery has juris-
diction to reform and foreclose the mortgage. McCrary &
Co. v. Austell, etc., Co., 46 Ga. 450.
County of Foreclosure of Mortgage on Realty. — A mort-
gage on land can not be foreclosed in a county other than
where the land lies, under a legal proceeding, but it might
be otherwise if the foreclosure were sought in equity un-
der this section. Allen v. Glenn, 37 Ga. 414, 13 S. E. 565.
Action for Damages for Breach of Bond with a Prayer of
Foreclosure. — An action of an equitable nature under this
section by a building and loan association for damages re-
sulting from the breach of a bond given to it by a member
to whom it had made an advance upon his stock, with a
prayer for the foreclosure of a mortgage which he had exe-
cuted to secure the payment of such damages, was well
brought. Morgan v. Interstate Bldg., etc., Ass'n, 108 Ga.
185, 33 S. E. 964.
The holder of one of several notes secured by the same
mortgage may foreclose the mortgage in equity. The holder
of the other notes is a proper, even if not a necessary party
to the proceeding. Willingham v. Huguenin, 129 Ga. 835,
60 S. E. 186.
Where the mortgagor of land has no title to the land, but
only a bargain for it, with part payment of the purchase-
money, the mortgagee can not have the aid of a court of
equity to foreclose his mortgage as against the holder of
the title, without offering to pay the remainder of the pur-
chase-money. Crummey v. Mechanics', etc., Bank, 30 Ga.
670.
If a mortgagor die insolvent, and there is no administra-
tion on his estate, and the equity of redemption has been
sold, the mortgagee may proceed to foreclose, in equity,
against such purchaser and his vendees. May v. Rawson,
21 Ga. 461.
Payment to Purchaser from Mortgagor before Foreclosure.
—Where A, the owner of land, borrows money from B and
gives a security deed, taking a bond for titles, and sub-
sequently mortgages the land to C to secure the payment
of money borrowed, and then sells and transfers the bond
for titles to D, who has notice of the mortgage, and D
pays off the claims of B, C can not in equity foreclose his
mortgage on the land and have it sold without first pay-
ing or tendering to D the amount paid by the latter to B.
Crawford v. Maddox, 117 Ga. 135, 43 S. E. 421.
Sufficiency of Petition. — The plaintiff in this case did not
allege sufficient facts to justify an equitable foreclosure of
its mortgage under this section. Ford v. Tifton Guano Co.,
144 Ga. 353, 355, 87 S. E. 274.
Same — Proceedings Not Void Under State Insolvency Act.
— A petition in equity filed in the superior court, which,
under this section has jurisdiction of mortgage foreclosure
suits, alleged that the plaintiff was a mortgage creditor of
defendant, and contained all allegations necessary to au-
thorize a foreclosure, alleged that defendant was insolvent,
and asked the foreclosure of the mortgage, and the appoint-
ment of a receiver for the debtor's property; but other al-
legations and prayers for relief showed that the plaintiff
had the insolvency in view in framing his petition. It was
[ 885 ]
§ 3306
SALES TO SECURE DEBTS
§ 3306
held, that the proceedings would be sustained as a mort-
gage foreclosure suit within the jurisdiction of the superior
court, even though the bill was imperfect, and required
amendment; and that the proceedings were not void as
taken under the Georgia insolvency law. See §§ 3249-3255,
which were suspended by the passage of the bankruptcy act.
Carling v. Seymour Lumber Co., 113 Fed. 483.
Personal Judgment Against Debtor Becoming Barred. —
Under this section the fact that a personal judgment against
the debtor had become barred did not render dormant that
part of the decree which declared that the creditor held a
valid legal title to the policy to the extent specified. Con-
way v. Caswell, 121 Ga. 254, 48 S. E. 956.
Failure to Issue Execution on Judgment.— Where upon a
petition to foreclose a mortgage in equity under this sec-
tion a judgment was rendered foreclosing the mortgage,
while, so far as the same may purport to be a general per-
sonal judgment, it is dormant because of failure to issue an
execution thereon in terms of the statute relating to dor-
mancy of judgments, it is valid and enforceable as a decree
foreclosing a mortgage. Conway v. Caswell, 121 Ga. 254, 48
S. E. 956; Lindsey v. Porter, 140 Ga. 249, 78 S. E. 848.
Cited in Duke v. Culpepper, 72 Ga. 842, 845; Smith v.
Bank, 143 Ga. 543, 85 S. E. 696.
CHAPTER 6.
Sales to Secure Debts.
§ 3306. (§ 2771.) Absolute deeds and not mort-
gages.— Whenever any person in this State con-
veys any real property by deed to secure any
debt to any person loaning or advancing said
vendor any money or to secure any other debt, and
shall take a bond for titles back to said vendor
upon the payment of such debt or debts, or shall
in like manner convey any personal property by
bill of sale and take an obligation binding the
person to whom said property is conveyed to
reconvey said property upon the payment of said
debt or debts, such conveyance of real or perr
sonal property shall pass the title of said prop-
erty to the vendee till the debt or debts which
said conveyance was made to secure shall be
fully paid, and shall be held by the courts of this
State to be an absolute conveyance, with the right
reserved by the vendor to have said property re-
conveyed to him upon the payment of the debt
or debts intended to be secured agreeably to the
terms of the contract, and not a mortgage. No
bond to reconvey shall be necessary when such
deed shows upon its face that it is given to se-
cure a debt. Acts 1871-2, pp. 44, 45; 1872, p. 47;
1884-5, p. 57; 1924, p. 56.
I. General Consideration.
II. Determining Whether Instrument Is Mortgage or Deed
to Secure Debt.
III. Form and Requisites.
IV. Lien of Security Deed, Fi. Fa. and Priorities.
V. Rights of Grantor and Creditor.
VI. Transfer or Assignment.
VII. Foreclosure.
Cross References.
For full treatment, see 3 Cum. Dig. 623, 8 Cum. Dig. 692,
4 Enc. Dig. 253. As to levy, when contract of purchase or
bond for title made, see § 6037. As to title to cropper's
crop, see § 3705. As to attachment by vendor for purchase
money, see § 5083. As to certain liens confirmed, see § 3330.
As to foreclosure of bill of sale to secure debt, see § 3298.
For treatment of liens, see §§ 3446-3466.
I. GENERAL CONSIDERATION.
See 4 Cum. Dig. 692, 4 Enc. Dig. 243.
Editor's Note, — This section emanates from the acts 1871-
2, pp. 44, 45; 1872, p. 47, and its first codification was in
1873. As it appeared in that code and the code of 1882, the
consent of the wife was necessary (see Buffington v. Hilley,
55 Ga. 655). The words "Provided, that the consent of the
wife has first been obtained" were inserted between the
words "vendee" and "till" near the center of the above sec-
tion. The wife's consent to a conveyance of her husband's
realty, to secure a debt, so as to vest title in his creditor
until the debt is paid, did not have to be manifested in the
form prescribed by the colonial act of 1760. It was suffi-
cient that it be in writing and signed (see Wynn v. Fick-
len, 54 Ga. 529.) The consent of the wife was no longer nec-
essary after the passage of Acts 1884-5, p. 57. The clause
above mentioned providing for such consent was stricken
from the section by that act.
The last sentence of the section, as it now reads was added
by the Acts 1924, p. 56. Prior to the passage of that
act, although an instrument purported on its face to se-
cure a debt, and referred particularly to this section, yet
it did not fall within the provisions of this section unless
there was a bond to reconvey the land upon payment of
the debt. Where an instrument contained nothing to indi-
cate that there was no bond for a reconveyance, it was pre-
sumed that such a bond was given. (See Pirkle v. Equit-
able Mortgage Co., 99 Ga. 524.) A debtor could, howeve-.
execute an absolute deed to his creditor for the purpose of
securing a debt, without receiving from the creditor a bond
to reconvey the property described in the deed upon pay-
ment of the debt. (See Jewell v. Walker, 109 Ga. 241, 34
S. E. 337; Cross v. Citizens Bank & Trust Co., 160 Ga. 647,.
128 S. E. 898.) Under this section as amended by Acts 1924.
p. 56, no bond to reconvey shall be necessary where sucr.
deed shows upon its face that it is given to secure a debt.
Instruments purporting to be security deeds, but unaccom
panied by bond for title were considered as mortgages. See
In re Moore, 146 Fed. 187; Williamson v. Orient Ins. Co., 10
Ga. 791, 28 S. E. 918.
Similar to Deed with Subsequent Mortgage. — Under this
section, the situation is not different from that which would
arise if a vendor made a deed to the vendee and then takes
a mortgage back to secure the indebtedness. Guin v. Hil-
ton & Dodge Lumber Co., 6 Ga. App. 484, 486, 65 S. E. 330.
Possession. — This section contemplates that the grantor
might remain in possession of the property. Tift & Co. v.
Dunn, 80 Ga. 14, 5 S. E. 256.
Security Deeds Not Included in Section 4198.— While the
language in § 4198 "every deed conveying lands," standing
alone, is broad enough to embrace security deeds, it is not
applicable to security deeds. These deeds are the creatures
of statute. Randall v. Hamilton, 156 Ga. 661, 663, 119 S. E.
595.
Vesting Title. — Generally in Georgia the mortgage passes
no title to lands; yet landed securities made in a particular
way by this section, which were once held to be equitable
mortgages, do pass title now; and the passing the title in
such securities, whether in accordance with this section or
not, wherever intended by the instrument to pass title, by
many decisions of this court, do have that effect and pa^s
title. Thomas v. Morrisett, 76 Ga. 384, 413.
A security deed to land conveys the legal title to the ven-
dee, and the rights of the vendee can not be affected by
subsequent acts of conveyance by the vendor to third par-
ties. But the vendor has such an equitable interest in the
premises conveyed as that he may create a valid second
security deed, or lien, subject to the paramount right of the
original grantee to have all the land appropriated to the
payment of his debt. Cook v. Georgia Fertilizer & Oil Co.,
154 Ga. 41, 113 S. E. 145.
Same — Judgment Against Grantor. — An absolute deed,
though made as a security for a debt, passes title under
this section, and a judgment subsequently rendered against
the grantor, has no lien on the land which can be enforced
by levy and sale until the title can become reinvested by
redemption. Groves v. Williams, 59 Ga. 614.
Same — Security Subject to Levy and Sale as Vendee's
Property. — Land held by absolute deed as security for a debt
still unpaid, is subject to levy and sale as the property of
the vendee, under a judgment against him, no matter
whether the judgment creditor gave credit on the faith of
the property so held or not. Parrott v. Baker, 82 Ga. 364,
9 S. E- 1068.
Divesting Title. — Title by virtue of a deed under this sec-
tion was not divested by the subsequent voluntary bank-
ruptcy of the grantor, and his consequent discharge from
all his debts. Broach v. Barfield, 57 Ga. 601.
Title under this section was not divested by the bankrupt
causing the land to be set apart in bankruptcy as his home-
stead exemption, he being the head of a family of children.
Broach v. Barfield, 57 Ga. 601.
Title under this section was not divested by the grantee's
filing, in the bankrupt court, objections to the allowance of
such exemption, nor by the pendency of such objections,
nor by an adjudication adversely to the objectors, they not
having proved their debts as claims against the bankrupt's
estate. Broach v. Barfield, 57 Ga. 601.
Title as Authorizing Recovery in Ejectment. — A deed to
secure a debt passes the legal title under this section and
[886]
\ 3306
SALES TO SECURE DEBTS
§ 3306
yill authorize a recovery in ejectment. Dykes v. McVay,
ft Ga. SC2.
Title as Defense to Ejectment.— A deed under this sect:on
jassing title to the grantee therein named, for the purpose
)f securing a debt, can, after the maturity of the debt, be
iet up as outstanding title to defeat an action of ejectment
jrought by one claiming under the grantor, if the possession
)f the defendant is connected with such title. Ashley v.
:ook, 109 Ga. 653, 35 S. E~ 89.
Ejectment by Vendee After Debt Matures.— The vendee in
i security deed, after the debt matures, can bring ejectment
igainst the vendor upon the title put in him by such deed.
Zarswell v. Hartridge, 55 Ga. 412; Biggers v. Bird, 55 Ga.
,50; Dykes v. McVay, 67 Ga. 502; Bennett v. Green, 156
S». 572, 579, 119 S. E. 620.
Rights to Homestead in Land Secured. — A conveyance to
secure a debt, made under this section, passes title, and de-
:eats all right to homestead in the land covered by such a
ieed. Isaacs v. Tinley, 58 Ga. 457. See also, Christopher
/. Williams, 59 Ga. 779; Kirby v. Reese, 69 Ga. 452; John-
son v. Griffin, etc., Co., 55 Ga. 691.
Dower Rights in Land Secured. — Where a husband bor-
-owed money and made to the lender an absolute deed under
this section, receiving a bond for title from the lender, and
it the time of his death none of the notes given by him for
the borrowed money had been paid, he had no interest in
the land except the equity of redemption, and it was error
to hold that his widow was entitled to dower in such land.
McDonald v. McDonald, 120 Ga. 403, 47 S. E. 918.
Taxation Based on Beneficial Ownership. — In Georgia the
law looks, in matters of taxation, rather to the substantial,
beneficial ownership of property conveyed under this sec-
tion, than to the shadowy, technical ownership of the legal
title. Central of Georgia R. Co. v. Wright, 124 Ga. 630, 632,
53 S. E. 207.
Deed Under this Section as Alienation Voiding Insurance
Policy. — Where § 2484 provides that "an alienation of prop-
erty insured, and a- transfer of the policy without the con-
sent of the insurer, voids the insurance, but the hypotheca-
tion or creation of a lien thereon does not void it," held,
that a deed to a creditor under this section, to secure a
debt, with reservation of balance, and the right to redeem
all by payment, is not such alienation. Nussbaum v.
Northern Ins. Co., 37 Fed. 524. And a stipulation in the
policy that change of title or possession will render the
policy void, does not cover a change effected by taking a
security deed under this section. Nussbaum v. Northern
ins. Co., 37 Fed. 524.
But where a policy of insurance covering a building on
the premises is issued, containing a condition that the policy
shall be void if the property should be sold, or the title or
possession of the property, or any part thereof, transferred
or changed, the holder of the policy conveys under this
section the property insured, the policy is thereby rendered
void. Phoenix Ins. Co. v. Asberry, 95 Ga. 792, 22 S. E-
717, affirmed in 102 Ga. 565, 27 S. E. 667.
Rights of Lessee from Debtor Making Security Deed. —
Where, the leasehold of the plaintiff is under one who, by
making a security deed to his creditor under this section,
has divested himself of the legal title, and the plaintiff has
no more than a mere possession of the land upon which the
trespass is alleged to have been committed, he can not main-
tain his action for damages to the realty. Flowers Lumber
Company v. Bush, 18 Ga. App. 269, 89 S. E. 344.
Trover to Recover Property Securing Debt. — In an action
of trover, it was error for the trial court to refuse to ad-
mit proof that cattle transferred to the defendant, as se-
curity for a debt, had died prior to maturity of the debt
or demand by the plaintiff. McCord v. Hill, 10 Ga. App.
254, 73 S. E. 559.
Power of General Agent to Execute Security Deed. — A
mere general agency to conduct the business of farming
will not include the power to execute a security deed, un-
der this section upon, a part of the farm to secure a re-
newal of past-due notes given by the agent for fertilizers
used in the farming operations. Hargrove v. Armour Ferti-
lizer Works, 31 Ga. App. 465, 120 S. E. 800.
A wife may be a creditor of her husband and may take
from him a deed to land to secure the debt under this sec-
tion. Turner v. Woodward, 133 Ga. 467, 66. S. E. 160.
Separate Deeds as Security for Two Notes. — Where sepa-
rate deeds executed under this section securing separate
promissory notes, but by collateral contract the debtor
agrees that each deed shall operate as security for the note
described in the other, title to all the realty described in
both notes passes, as between the debtor and the creditor,
to the creditor, and the security is effectual against other
creditors who obtain no lien. Johnson v. Gordon, 102 Ga.
350, 30 S. E. 507.
Security Deed to Guardian and Reconveyance. — The se-
curity deed to A, guardian of B, as between the grantor
and the grantee, had the effect to vest the legal title to
the property described in the grantee for the purposes
therein mentioned; and a deed under the provisions of this
section reconveying the property to the debtor for the pur-
pose of levy and sale, and executed by A, guardian of B,
conveyed all the interest of the grantor in' the land in
question, and put title into the defendant as completely as
it had been prior to the execution of the security deed. Ar-
rowood v. McKee, 119 Ga. 623, 46 S. E. 871.
Estoppel After Allegation that Instrument Is a Deed.—
Where the holder of a promissory note, secured by an in-
strument purporting to be a deed, obtains a judgment
thereon, stating in his declaration that the instrument is
a deed, he will not afterwards be heard to allege that the
instrument is a mortgage and not a deed passing title. Mc-
Candless v. Yorkshire Corp., 101 Ga. 180, 28 S. E- 663.
Sale of Land Under Fi. Fa. Against Holder of Equity.—
By virtue of this section the sale of land under a fi. fa.
against the holder of an equity therein, who has conveyed
the legal title to another to secure a debt, and while the
legal title is thus held, is void. Dickenson v. Williams, 151
Ga. 71, 105 S. E. 841.
Applied in Tufts v. Little, 56 Ga. 140; Roland v. Coleman
& Co., 76 Ga. 654; Brice v. Lane, 90 Ga. 295, 15 S. E. 823;
Hubert v. Merchants Bank, 137 Ga. 70, 72 S. E- 505; Wood
v. Dozier, 142 Ga. 540, 83 S. E. 133; Beckcom v. Small, 152
Ga. 149, 108 S. E. 542.
II. DETERMINING WHETHER INSTRUMENT IS
MORTGAGE OR DEED TO SECURE DEBT.
See 8 Cum. Dig. 695. See also, post, this note, "Form and
Requisities," III.
Section Not Exclusive. — A conveyance of absolute title
may be made to a creditor to secure a debt, outside of this
section et seq. Roland v. Coleman, 76 Ga. 652; Ward v.
Lord, 100 Ga. 407, 410, 28 S. E. 446.
Same — Equitable Mortgages. — If a deed is not made un-
der this section, but is made for the purpose of securing a
debt, it would be what was known before the passage of
the act embodied in this section, as an equitable mortgage,
conveying the title of the land with the equitable right of
redemption. Mitchell v. Fullington, 83 Ga. 301, 302, 9 S.
E. 1083.
Compliance with Section. — A failure to comply strictly
with the provisions of this section does not necessarily make
a conveyance given to secure a debt a mortgage. William-
son v. Orient Ins. Co., 100 Ga. 791, 793, 28 S. E. 914.
Effect of Referring to "This Mortgage."— Especially is the
instrument construed in this case a mortgage and not a
deed passing title under this section because its first words
are: "This mortgage, made this the 18th day of September,
1915," and in several other places therein it is described
as "this mortgage;" indicating that it was the intention of
the parties that the instrument be construed to be a mort-
gage. Massillon Engine, etc., Co. v. Burnett, 19 Ga. App.
487.
Effect of Reciting that "This is a Deed."— A bill of sale
of personalty to secure the payment of a debt, which re-
cites that "this is a deed conveying title, and a bond to
reconvey is this day given," is not a mortgage, but a con-
veyance under this section. Watts v. Wight Invest. Co.,
25 Ga. App. 291, 103 S. E. 184.
Mortgage in Form of Security Deed. — An instrument in
the usual form of a security deed under this section, but
containing a clause providing that should the grantor
"faithfully perform and keep all the covenants and agree-
ments herein set out, this conveyance shall cease, deter-
mine, and be void," is a mortgage, and not a deed. Mas-
sillon Engine, etc., Co. v. Burnett, 19 Ga. App. 487.
Effect of Failure to Give Bond. — See the editor's note
under the analysis line "General Consideration," I.
Creation of Trust to Pay Note. — The creation of a trust
for the purpose of paying a note is the same in effect as
the insertion of a defeasance clause in the instrument; and
this being true, such instrument is a mortgage, and not a
bill of sale which passes indefeasible title under this sec-
tion. Ward v. Lord, 100 Ga. 407, 28 S. E. 446.
Absolute Deed Can Not Be Shown to Be Mortgage — A
deed from the plaintiffs, in an action of complaint for land,
to the defendant, not having been made under this section,
but being a deed absolute on its face and accompanied with
possession of property by defendant, could not, under the
state of the pleadings, be proved by parol to be only a
mortgage given for the purpose of securing a debt. Mitch-
ell v. Fullington, 83 Ga. 301, 9 S. E- 1083. See § 3258 and
notes thereto.
Illustrations. — Under this section a bill of sale of per-
sonalty to secure a debt, although it contains a clause to
reconvey the property upon the payment of the debt, is not
[ 887 ]
§ 3306
SALES TO SECURE DEBTS
§ 3306
a mortgage, but is an absolute conveyance of the prop-
erty, and passes title to the same until the debt is fully
paid. Hill v. Marshall, 18 Ga. App. 652, 90 S. F. 175.
Where an instrument recited that, whereas, the sub-
scriber bargained, sold, transferred, and conveyed to C. all
the stock of goods in a certain store, etc., that delivery
was dispensed with, and that the goods were to remain in
"the subscriber's possession until default in the payment of
the note and interest, during which time the subscriber was
to be a bailee for hire, and on default was to deliver the
property to C, it was a deed to secure a debt under this
section, and not- a chattel mortgage. In re Caldwell, 178
Fed. 377.
III. FORM AND REQUISITES.
See 8 Cum. Dig. 696. See also, ante, this note, "Deter-
mining whether Instrument Is Mortgage or Deed to Secure
Debt," II.
Instrument Can Not Be of Two Natures. — The parties can
not by an agreement make an instrument both retain-
ing title and not retaining title; nor can they by such
agreement make a summary statutory proceeding applica-
ble by law to one character of instruments applicable by
agreement to another. Wynn v. Tyner, 139 Ga. 765, 78 S.
F- 185.
Sufficiency of Description.— Where a security deed, under
this section, conveys a certain lease from the lessor to the
grantor in such deed, which deed fully describes the lease
and the leased premises and contains this provision: "in-
. eluding also all the machinery, equipment, stock in trade
and all other assets" of the grantor, the description of such
personal property is sufficient. Bennett v. Green, 156 Ga.
572, 119 S. F. 620.
Specifying Amount of Debt — It is not necessary that a
deed to secure debt shall specify the amount of the indebted-
ness that it is given to secure Troup Co. v. Speer, 23 Ga.
App. 750, 99 S. F. 541. As to effect, where the instrument
does specify amount and an additional loan is made, see
note of this case, under § 3307.
Debt Secured Tainted with Usury.— See § 3442.
A deed executed by a borrower under this section to se-
cure a debt infected with usury, and purporting not only to
convey title to the lender, but also to confer upon the lat
ter a power of sale, is void. Pottle v. Lowe, 99 Ga. 576, 27 S.
F. 145. See also, Files v. Bank, 151 Ga. 483, 107 S. F- 490; Mc-
Laren v. Clark, 80 Ga. 423, 7 S. F. 230.
Necessity for Title Bond. — See editor's note under the
analysis line, "General Consideration," I.
IV. LIEN OF SECURITY DEED, FI. FA. AND
PRIORITIES.
See 8 Cum. Dig. 697, 699.
Nature of Lien of Security Deed.— The interest which a
grantee takes under a deed executed under this section is
not absolute in its broadest sense, but is restricted to hold-
ing tide as security for the debt. For that purpose it places
legal title out of the grantor, but on payment of the debt
the right of the grantee to hold it ceases. It is a species
of security effective from the date of the instrument when
duly recorded, and is enforceable against the property by
levy and sale under proceedings elsewhere provided for in
§ 6037. Though of higher dignity, it is similar to a lien,
and upon sale of the property in accordance with the stat-
ute last mentioned it is transferred from the property to
the proceeds of the sale. Harvard v. Davis, 145 Ga. 580
583, 89 S. F. 740.
The rights of a creditor whose debt is secured by deed
from the debtor are fixed by a statute, which, while de-
claring that such conveyances pass the title to the vendee,
evidently intended them to be treated as mere liens, ex-
cept as between the contracting parties, when the right of
third persons only are to, be affected. A deed executed un-
der the provisions of this section is absolute in the sense
that nothing can intervene to prevent the creditor from col-
lecting his debt if the property really belonged to the ven-
dor and is sufficient for that purpose, and in the sense that
the vendor is entitled, upon payment of the debt to have
title reconveyed to him. But while deeds executed under
that section are expressly declared not to be mortgages, it
is plain that the legislature, by declaring that they pass
absolute title, intended to create a lien of high dignity.
Dixon v. Bond, 18 Ga. App. 45, 47, 88 S. F. 825.
Lien of Secured Creditor — Attaching to Proceeds of Sale.
— Where a creditor, whose debt was secured by a convey-
ance of land under this section, obtained judgment, recon-
veyed the land to the debtor, and subsequently acquiesced
in a sale of the land under an execution in favor of another
creditor, and claimed the proceeds of such sale in the sheriff's
hands, the lien of the secured creditor attached to such pro-
ceeds, and the purchaser at the sheriff's sale acquired an
unencumbered title. Marshall v. Hodgkins, 99 Ga. 592, 27 S.
F. 748.
Specifying Lien on Face of Pleadings.— While it is the
better practice, it is not essential, in suits upon notes se-
cured by deed under this section, to specify or declare a
lien on the face of the pleadings or the judgment therein,
in order to sell the land under execution by filing a deed
reconveying the land, and to subject it to the special con-
tract lien. The proof of the special lien "may be made
aliunde the face of the judgment or the pleadings on the
note sued." Spradlin v. Kramer, 146 Ga. 396, 91 S. F. 409.
Priorities. — A security deed leaves the grantor no in-
terest in land which can be subjected to levy and sale by a
creditor whose judgment was obtained after the deed was
executed. Shumate v. McLendon, 120 Ga. 396, 48 S. F. JO;
Bennet Lumber Co. v. Martin, 132 Ga. 490, 494, 64 S. E.
484.
Same — Security Deed Superior to Year's Support and
Dower. — The title acquired under a deed under this section
is superior to the right to a year's support, or dower,
though such right to a year's support and dower are super-
ior to the lien of a mortgage. When a judgment has been
obtained on any indebtedness secured by the deed, before
the property can be levied upon and sold there must be a
reconveyance by the grantee to the grantor. Bennett Lum-
ber Co. v. Martin, 132 Ga. 491, 494, 64 S. F. 484. See ante,
this note, "General Consideration," 1.
Same — Between Security Deed and Laborers' Liens. — A
security deed under this section is such a conveyance of
title as will defeat laborers' liens upon the property em-
braced therein, if their creation was junior to this instru-
ment, or if such deed was taken bona fide by the grantee
and without notice of such liens. Bennett v. Green, 156 Ga.
572, 119 S. F. 620.
Same — Between Security Deed and Contractor's Lien. —
In the case of Mattlage v. Mulherin, 106 Ga. 834, 32 S. F-
940, the principle of law was laid down that, when property
has been conveyed by a grantor to secure a debt, and the
grantee in the security deed reduces his debt to judgment
and files a quitclaim deed for the purpose of levy and sale,
and the property is sold by the sheriff under the levy of
the execution issued on such judgment, the lessee from the
grantor under a lease junior to the security deed can at law
be dispossessed by the sheriff for the purpose of placing in
possession the purchase of the property at such sale; and
this may be done notwithstanding the fact that the lease
is older than the judgment, when it is junior to the security
deed.
But where the owner of property incumbered it with a
security deed and a contractor's lien, and thereafter leased
a portion of it to a third person for a term of years, the
holders of the liens will be compelled to sell such property
in such a manner as not capriciously, unnecessarily, and
unjustlv to interfere with such leasehold interest. Western
Union Teleg. Co. v. Brown, 154 Ga. 229, 114 S. F- 36.
Same — Between Security Deed and Materialman's Lien.
— Where title to real estate is conveyed by a duly recorded
deed to secure a debt under this section, and the grantee
takes the deed and advances the, money loaned, without no-
tice and before the record of the materialman's lien upon
the property, the title thus acquired is superior to such
lien. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S. F-
484; Milner v. Wellhouse, 148 Ga. 275, 96 S. F. 566; Guaranty
Invest. & Loan Co. v. Athens, etc., Co., 152 Ga. 596, 110
S. F- 873.
Same — Failure to Record. — The court did not err in award-
ing money to a judgment creditor, upon a levy, it not ap-
pearing that the defendant had repaid any of the money
borrowed, or that the lender had conveyed back the land and
filed the deed in the clerk's office as provided for in §
3307. Osborne v. Hill, 91 Ga. 137, 16 S. F- 965.
Levy of Fi. Fa. — Where the plaintiff in fi. fa. has filed a
deed under this section for the purpose of having the land
levied upon which had been conveyed to him by his debtor
as security for the debt, the sheriff, though the fi. fa. is-
sued from a justice's court may make the levy without mak-
ing a search for personal property or making an entry upon
the fi. fa. that no such property can be found. The object
being to enforce the fi. fa. against the specific land pledged
to secure the debt, the general rule as to the collection of
fi. fas. issued from justices' courts does not apply. Bennett
v. McConnell, 88 Ga. 177, 14 S. F- 208.
A fi. fa. issued upon a judgment rendered for a debt
secured by a deed made under this section, can not be
levied upon the realty conveyed as security until after the
creditor has executed, filed, and had recorded a deed re-
conveying the property to the debtor; and a sale by the
sheriff to the creditor, the levy having been made after the
execution of such deed, but before • it was either filed or
[ 888 ]
3306
SALES TO SECURE DEBTS
§ 3306
recorded, is utterly void. National Bank v. Danforth, SO
Ga. 55, 7 S. E. 546.
V. RIGHTS OF GRANTOR AND CREDITOR.
See 8 Cum. Dig. 701. See also, ante, this note, "Lien of
Security Deed, Fi. Fa., and Priorities," IV.
Condition Precedent to Equitable Relief by Grantor. —
Before a borrower who has executed a deed under this sec-
tion can have affirmative equitable relief, such as injunction
to prevent exercise of the power of sale by the grantee in
such security deed, he must pay or tender to such grantee
the principal and lawful interest due to him. L,iles v. Bank.
151 Ga. 483, 107 S. E. 490.
The right to contest the validity of a security deed on
the ground that the notes secured by the deed contain usury
is personal to the maker 'of the security deed, his repre-
sentatives and privies. A stranger in interest will not be
heard in an attack on a title claimed to be void for usury.
Dickenson v. Williams, 151 Ga. 71, 105 S. E. 841.
Interest of Grantor. — The grantor in a deed under this
section retains the right of possession and the right of re-
demption by payment of the debt, and consequently an
equitable estate in the land which may be assigned or sub-
jected to payment of his debts. Citizens Bank v. Taylor,
155 Ga. 416, 117 S. E- 247.
Same — Right of Redemption. — See 8 Cum. Dig. 702.
When one has borrowed a sum of money and conveyed
land to the lender as security for the payment of the debt,
and received from the grantee a bond conditioned to recon-
vey on the payment of the debt, the interest pertaining to
such land which the grantor thereafter possesses, until the
debt is paid, is the right to redeem under this section and §
3309. Williams v. Foy Mfg. Co., Ill Ga. 856, 36 S. E. 927.
To redeem land, held by absolute legal title as security
for a debt under this section, the debt must be paid or
tendered; and, generally, a tender will be effective, though
delayed till after the creditor has recovered possession cf
the premises by action. Broach v. Barfield, 57 Ga. 601.
The right to redeem is an equitable estate in the land, and
may be sold and conveyed, subject to the paramount right
of the original grantee to have all of the land appropriated
to the payment of his debt. Williams v. Foy Mfg. Co., Ill
Ga. 856, 36 S. E. 927.
Levy and Sale by Creditor. — Where a large body of land
divided by a county line was, under this section conveyed
as a whole to secure a debt, with bond for reconveyance,
the creditor, after obtaining judgment, could have the en-
tire tract levied on and sold in either county, neither being
the county of the residence of the defendant in execution.
Cade v. Larned, 99 Ga. 588, 27 S. E. 166.
Same — Condition Precedent. — In order for a creditor to
levy an execution upon property covered by a valid bill of
sale made to secure a debt under this section, the creditor
must first redeem the property by paying off in full the
security debt, and a levy made without a compliance with
such condition precedent is void. See § 6038. Bank of
LaGrange v. Rutland, 27 Ga. App. 442, 108 S. E. 821.
Upon failure of the debtor to pay the debt at maturity,
the creditor may institute suit thereon and may pray for and
obtain a special judgment subjecting the property described
in the deed to the payment of the debt. Jewell v. Walker,
109 Ga. 241, 34 S. E. 337.
VI. TRANSFER OR ASSIGNMENTS.
See 8 Cum. Dig. 702. See also, note under § 3309.
Transfer of Negotiable Notes. — The transfer of a negotiable
promissory note secured by a deed under the provisions of
this section although the transfer be made by indorsement
of the payee on the note without recourse upon him, will
not discharge the land from the encumbrance placed upon
it by the deed. Henry v. McAllister, 93 Ga. 667, 670, 20 S.
E. 66; Milner v. Wellhouse, 148 Ga. 275, 96 S. E- 566.
Where a deed was given under the provisions of this sec-
tion to secure the payment of a promissory note, and the
original payee afterwards transferred the note without re-
course, at the same time conveying to the assignee the title
to the land described in the security deed, the latter was
entitled to all the rights of the original payee of the note,
and all the remedies for enforcing the same. Hunt v. New
England, etc., Co., 92 Ga. 720, 19 S. E. 27; Henry v. Mc
Allister, 93 Ga. 667, 671, 20 S. E- 66; Gillespie v. Hunt, 145
Ga. 490, 89 S. E. 519.
Where a vendor of land takes notes for the purchase
money, securing their payment by reservation of title in him-
self, which notes he afterwards transfers without recourse
and without any transfer of the reserve title to a third party,
this operates as a payment of the purchase money, the
vendee's equity becomes complete, and the vendor ceases to
hold any interest in the land. Cade v. Jenkins, 88 Ga.
791, 15 S. E. 292; Henry v. McAllister, 93 Ga. 667, 670, 20
S. E. 66.
Same — Written Transfer of Deed Itself and Rights of
Grantee. — While the transfer of negotiable promissory notes
secured by an absolute conveyance of land made under this
section, •although the transfer be made by indorsement oi
the payee without recourse upon him, will not discharge the
land from the incumbrance placed upon it by the deed, yet a
mere written transfer, indorsed upon the deed, of the deed
itself and the rights of the grantee therein (the payee of
the note) will not pass title to the land out of him and into
the indorsee of the notes, as to enable the Witter to con-
vey the land back to the debtor who executed the deed to
secure the notes. Henry v. McAllister, 93 Ga. 667, 20 S-
E. 66.
Same — Equitable Interest of Assignee. — While an assign-
ment of a promissory note, or other evidence of indebted-
ness, secured by a deed to land executed under the pro-
visions of this section, does not pass to the assignee a legal
title to the land itself, such assignee has, and as against
the debtor may, when necessary to the collection of such
claim, assert an equitable interest in the security effectuated
by the deed. Van Pelt v. Hurt, 97 Ga. 660, 25 S. E- 489.
Transfer of Bond for Title as Security for Another Debt.
— Where an owner conveys realty as security for a debt and
receives a bond for title conditioned to reconvey the prop-
erty on payment of the debt under the provisions of this
section, and after such conveyance transfers the bond for
title as security for another debt, such transfer operates to
assign the equity of the owner in the land subject to the loan
deed. Guaranty Invest. & Loan Co. v. Athens, etc., Co., 152
Ga. 596, 110 S. E. 873.
Where a transferee accepts a bond for title as security
for an additional loan subject to that specified in the loan
deed, he acquires such an equitable interest in the land as
will entitle him on sale of the property under the loan deed
to a sufficient amount of the proceeds after discharge of
the debt secured by the loan deed to satisfy his debt; and
his right will attach from the time he receives the transfer,
and be superior to a subsequent materialman's lien. This
ruling does not conflict with O'Connor v. Georgia R. Bank.
121 Ga. 88, 48 S. E. 716; Guaranty Invest. & Loan Co. v.
Athens, etc., Co., 152 Ga. 596, 110 S. E. 873.
Equitable Right of Debtor's Subsequent Vendee With-
out Notice Divested by Sale Under Section 6037. — Where
property encumbered by a deed to secure a debt, under the
provisions of this section, was sold, subject to such security
deed, by the grantor to a third person, who paid all of the
purchase price except the secured debt which the purchaser
assumed and agreed to pay, and took a bond for title from
the grantor, and thereafter the grantee in the security deed
sued his debtor, the grantor, and obtained a judgment for
the amount of the indebtedness so secured, and a special
lien upon the property conveyed as security, even though
the holder of the bond for title was not made a party to-
the suit or otherwise notified thereof, the equitable interest
of the holder of the bond for title was divested by a sale
made in compliance with the terms of § 6037 under the fi.
fa. issued on said judgment. Such proceeding did not violate
the fourteenth amendment to the constitution of the United
States, and the similar provision of our State constitution,
which declares that "no person shall be deprived of life,
liberty, or property, without due process of law." Scott v.
Paisley, 158 Ga. 876, 124 S. E. 726.
A subsequent incumbrance of the same property by the
grantor, whether by security deed or mortgage executed by
the grantor named in the prior security deed while he re-
tains his equitable estate in the land, will operate upon
that equitable estate.
416, 117 S. E. 247.
Citizens Bank v. Taylor, 155 Ga.
VII. FORECLOSURE.
Equitable Foreclosure. — A conveyance made under this
section to secure a debt, and which is void as title on ac-
count of usury, can not be foreclosed as an equitable mort-
gage. Broach v. Smith, 75 Ga. 159.
Where a deed under seal was made conveying title in
order to secure an indebtedness represented by a promis-
sory note, under this section, and on its face it recited the
debt and the purpose to secure it, although suit on the
note became barred by the statute of limitations, the cred-
itor could foreclose the deed as an equitable mortgage with-
in twenty years from its execution. Pusser v. Thompson,
132 Ga. 280,' 64 S. E. 75.
Foreclosure as Mortgage in Federal Court. — Under this
section et seq., a deed to real estate, given to secure a debt,
may be foreclosed by the grantee as a mortgage, notwith-
standing a provision therein that it is to be construed as a
deed passing title, and not as a mortgage, such provision.
[ 889 ]
§ 3307
SALES TO SECURE DEBTS
§ 3307
being one for the benefit of the grantee, which he may
waive at his election. Merrihew v. Fort, 98 Fed. 899.
A deed absolute in form, given as security for a loan of
money, and executed contemporaneously with the debtor's
notes and with a bond to reconvey, given by the grantee,
all in accordance with the provisions of this section et seq.,
may be foreclosed as a mortgage, by a suit in equity in a
federal court, notwithstanding that these provisions give a
special remedy at law ; for the equity jurisdiction of the
federal courts can not be limited by state legislation. Ray
v. Tatum, 72 Fed. 112.
Same — Chacacter of Instrument Not Changed. — Under this
section the fact that the holder of a conveyance brings suit
to foreclose the same as a mortgage in a federal court,- as
he may do, does not change its character to that of a plain
mortgage, which, is only a security and passes no title, so
as to let in the claim of the widow of the grantor to an al-
lowance for support out of the property, but such an al-
lowance made in proceedings to which the grantee was not
a party can apply only to the grantor's equity of redemp-
tion. British & American Mortgage Co. v. Worrill, 168 Fed.
120.
§ 3307. (§ 2772.) Record of such deeds. —
Every such deed shall be recorded in the county
where the land conveyed lies; every such bill of
sale, in the county where the maker resided at
the time of its execution, if a resident of this
State. If a non-resident, then in the county
where the personalty conveyed is. Such deeds
or bills of sale not recorded remain valid against
the persons executing them, but are postponed
to all liens created or obtained, or purchases
made, prior to the actual record of the deed or
bill of sale. If, however, the younger lien is
created by contract, and the party receiving it has
notice of the prior unrecorded deed or bill of
sale, or if the purchaser has the like notice, then
the title conveyed by the older deed or bill of
sale shall be held good against them. Acts
1884-5, p. 124,
As to when instruments requiring record take effect, see
§§ 3320, 3323.
Necessity for Record. — Under this section a chattel mort-
gage to be valid as against- other lines must be recorded.
In re Smith, 281 Fed. 574. See also, Osborne v. Hill, 91 Ga.
137, 16 S. E- 965. Prior to the passage of the act from
which this section was taken recordation was not required.
Tift & Co. v. Dunn, 80 Ga. 14, 5 S. E. 256.
Same — Between Parties. — It is not essential under this
section, in order to convey title to land to secure a debt as
between the maker and the grantee, that the deed should
be recorded. As between the maker of the security deed
and the grantee, the latter would get a good title. Cooper
v. Bacon, 143 Ga. 64, 84 S. F. 123.
Section Applies to Bills of Sale and Deeds to Secure Debts
— -This section by its express terms applies as well to a
bill of sale of personalty to secure debt as to deeds of con-
veyance of realty to secure debt. Butler v. LaGrange, 29
Ga. App. 612, 116 S. F. 213.
Same — Deed Absolute in Form. — Although a deed may
have been on its face an absolute deed and expressed a
valuable consideration, yet if it was given to secure a debt,
falls under this section. Cabot v. Armstrong, 100 Ga. 438,
443, 28 S. F. 123.
This section was modified by § 3320, subsequently enacted.
Cress v. Citizens Bank & Trust Co., 160 Ga. 647, 128 S. E-
898.
This Section Not Repealed by Section 6037. — Acts of 1894,
p. 100, as codified in § 6037 et seq., did not repeal this sec-
tion, nor did it alter its effect, it not being in conflict there-
with. Cooke v. Adams Bros. Co., 148 Ga. 289, 96 S. F. 499.
Where Subsequent Purchaser or Creditor Has Notice of
Sale. — A sale of personal property to secure a debt, where
the property remains in the possession of the vendor, is in-
operative and void as against third persons, unless it is re-
duced to writing, in which event it will be good as to third
persons when recorded under this section, or, when not
recorded, as to subsequent purchasers or creditors who have
actual notice of such sale. Henry Vogt Mach. Co. v. Bailey,
2 Ga. App. 204, 58 S. F. 314.
Recorded Deed Not Showing Maturity, as Notice. — A
duly filed and recorded deed, which plainly shows that it
was given to secure a debt, but does not show when the
same matures, is notice to one dealing with the grantor
[890]
therein of all the rights which the grantee has under the
contract performance of which is thereby secured. Mat-
tlage v. Mulherin's Sons & Co., 106 Ga. 834, 32 S. F. 940.
Record of Agreement Extending Lien to Additional Debt.
— The record of an agreement extending lien of recorded
security deed to an additional debt, is not necessary to pre-
vent a judgment for an unsecured debt from obtaining
priority. McClure v. Smith, 115 Ga. 709, 42 S. F. 53.
Priority — Before this Section. — Prior to the passage of
this section, a security deed executed in good faith, though
unrecorded, was superior to a subsequently -acquired lien
against the grantor. Mclntire v. Garmany, 8 Ga. App. 802,
70 S. F- 198; Phinizy v. Clark, 62 Ga. 623; Sosnowski v.
Rape, 69 Ga. 548; McClure . v. Smith, 115 Ga. 709, 713, 42
S. F. 53.
Same — Common- Law Judgment and Deed. — Under this sec-
tion a common-law judgment against a grantor, obtained
after the execution of a security deed by him, and entered
on the general execution docket within ten days from its
rendition, but before the actual record of the security deed,
is superior to such deed. Cabot v. Armstrong, 100 Ga. 438,
443, 28 S. F. 123; Cooke v. Adams Bros. Co., 148 Ga. 289,
96 S. F. 499.
A judgment against a grantor, obtained after the execution
by him of a security deed, but prior to its being filed for
record in the county where the land lies under this section,
is superior to such deed. Cabot v. Armstrong, 100 Ga. 438,
443, 28 S. F. 123; Cambridge Tile Co. v. Scaife & Sons Co.,
137 Ga. 281, 73 S. F. 492; Coley v. Altamaha Fertilizer Co.,
147 Ga. 150, 93 S. F. 90.
Same — Landord's Lien for Rent and Tenant's Unrecorded
Bill of Sale. — A landlord's general lien for rent, arising
upon the issuance and levy of a distress warrant, is superior
to a tenant's unrecorded bill of sale of personalty to secure
a debt, though the latter was executed and delivered prior
to the date of the levy of the distress warrant upon the
property covered by the bill of sale. Butler v. LaGrange
Grocery Co., 29 Ga. App. 612, 116 S. F. 213.
Same — Unrecorded Security Deed Postponed to Subse-
quent Purchase.— Under this section an unrecorded security
deed is postponed to a subsequent purchase by another
from the grantor in such deed of the land therein conveyed,
prior to its record, and to the title thus acquired by such
purchaser, the latter at the time of such purchase receiv-
ing from such grantor in possession of the premises a war-
ranty deed thereto, and taking and thereafter retaining
possession thereof, although the deed of the purchaser is
not recorded until after the record of the security deed.
Randall v. Hamilton, 156 Ga. 661, 119 S. F. 595.
Same — Distress Warrant and Security Deed. — A held a
security deed to the land, and the oldest fi. fa. against the
debtor. B held a distress warrant which had been levied
prior to the record of the security deed to A. This prior
levy gave the warrant a priority of lien over the security
deed by virtue of this section. Virginia -Carolina Chemical
Co. v. Rylee, 139 Ga. 669, 674, 78 S. F. 27.
Instrument Specifying Amount of Loan. — Where an in-
strument made in the form of a security deed by its own
language specifies and thus limits a debt in a named amount
as being the one which it is actually intended to secure, the
record of the instrument will not suffice to give to the gran-
tee thereunder any priority over third persons who may
have subsequently and in good faith acquired a lien upon
the same property, except as to the amount of the particular
indebtedness thus specified. See American National Bank
v. Brooks, 143 Ga. 320, 322, 85 S. F. 117; Bank v. Holloway-
Smith Co., 146 Ga. 700, 92 S. F. 213; Leffler Co. v. Lane, 146
Ga. 741, 92 S. F. 214; Skinner v. FHiott, 17 Ga. App. 511,
87 S. F. 759. As between the parties themselves the rule
would be different, and although a deed may be given as
security for a named indebtedness in a specified amount, it
is competent for the parties to extend the security by agree-
ment so that as between them it shall cover an additional
indebtedness. Wylly v. Screven, 98 Ga. 213, 25 S. F- 435;
Hester v. Gairdner, 128 Ga. 531, 538, 58 S. F. 165; Troup
Co. v. Speer, 23 Ga. App. 750, 99 3. F. 541.
Instrument In Form of Absolute Deed. — Where the in-
strument is written in the form of an absolute conveyance
and does not within itself disclose that title is passed merely
as security for a debt, the record of the conveyance puts the
world upon notice that no interest or equity in the land re-
mains in the grantor, and one subsequently dealing with him
could not be misled or injured by the statement of the con-
sideration as contained therein. McClure v. Smith, 115 Ga.
709, 42 S. F. 53; Mclntire v. Garmany, 8 Ga. App. 802, 70 S.
F. 198; Bank v. Patterson, 148 Ga. 367, 96 S. F. 996. And in
such a case a parol agreement extending the security to an
additional indebtedness is not to be taken as varying the writ-
ten terms of the instrument, and is good, since where the I
form is that of an ordinary warranty deed, the mere naming
§ 3308
SALES TO SECURE DEBTS
§ 3310(1)
of a consideration is not to be taken as stating any amount of
security or limiting it to any particular sum. Hester v.
Gairdner, 128 Ga. 531, 538, 58 S. E. 165; Wiggs v. Hend-
ricks, 147 Ga. 444, 94 S. E- 556; Troup Co. v. Speer, 23 Ga.
App. 750, 99 S. E. 541.
Cited in Empire Cotton Oil Co. v. Continental Gin Co.,
21 Ga. App. 16, 93 S. E- 525; DeLaigle v. Shuptrine, 28 Ga.
App. 380, 110 S. E- 920; New England Mortg., etc., Co. v.
Gay, 145 U. S. 123, 12 S. Ct. 815, 36 L. Ed. 646.
§ 3308. (§ 2773.) Attestation.— In order to ad-
mit such deeds or bills of sale to record, they
shall be attested or proved in the manner now
prescribed by law for mortgages. Acts 1884-5,
p. 124.
See notes to § 3257.
Cited in Dixon v. Bond, 18 Ga. App. 45, 47, 88 S. E- 825.
§ 3309. (§ 2774.) To reconvey title of property
conveyed to secure debts. — In all cases where
property is conveyed to secure a debt, the sur-
render and cancellation of such deed in the same
manner that mortgages are now canceled, on
payment of such debt to any person legally au-
thorized to receive the same, shall operate to re-
convey the title of said property to the grantor,
his heirs, executors, administrators, or assigns,
and such cancellation may be entered of record
by the clerk of the superior court in the same
manner that cancellations of mortgages are now
?ntered. Acts 1899, p. 119.
Cross References.— See also, § 3306.
As to cancellation of mortgage, see § 3270. As to how
satisfaction of bond for title is entered of record, see § 4215.
Distinction between Cancellation and Record of Cancella-
tion.— "This section deals with the cancellation of the
security deed as a separate and distinct thing from the
record of such cancellation; and the record of such cancel-
lation as a separate and distinct thing from the cancella-
tion itself. The language of this section, 'cancellation of
such deed in the same manner that mortgages are now
canceled,' may mean that such cancellation shall consist of
an acknowledgment of the payment of the debt and an
jrder from the grantee authorizing or directing the cancel-
lation of the instrument. The proper construction may be,
that, when such order is entered upon the security deed, it
is the cancellation thereof contemplated by this section."
Citizens Mercantile Co. v. Easom, 158 Ga. 604, 609, 123 S.
E 883.
Entry on Security Deed as Cancellation. — Quaere, whether
in entry upon a security deed in which full payment of the
secured debt is acknowledged and cancellation of the deed
I authorized is such cancellation as is required under this
section. Citizens Mercantile Co. v. Easom, 158 Ga. 604, 123
5. E- 883.
Voluntary Cancellation Without Consideration. — Under
this section, the cancellation of a security deed and its de-
livery to the grantor, who had it canceled of record, was
leld binding and effective, though the cancellation was
voluntary and without consideration. In re Hitchcock, 283
Fed. 447.
Cancellation Sufficient — Reconveyance Unnecessary. — No
"econveyance is necessary to revest title, where land has
Deen conveyed to secure a debt, a cancellation of the deed,
is in the case of mortgages, being sufficient for that pur-
Dose under this section. Chapman v. Ayer, 95 Ga. 581, 583,
23 S. E. 131; Citizens Bank v. Taylor, 155 Ga. 416, 117 S. E.
247.
Methods of Revesting Absolute Tjtle. — If an instrument
by which title is conveyed to the creditor be of such a
character as to pass into him an absolute title, it can be
"evested only by a reconveyance to the grantor, or by com-
pliance with the provisions of this section. Burckhalter v.
Planters Loan, etc., Bank, 100 Ga. 428, 433, 28 S. E. 236. See
also, Ashley v. Cook, 109 Ga. 653, 656, 35 S. E. 89.
Same — Payment of Debt — Under this section the pay-
ment of a debt secured by deed to land revests in the
grantor in such deed such interest and title therein as can
be levied upon under an execution issuing upon a judg-
ment junior in date to such deed, without a reconveyance
sf the land to the grantor, and, in case of cancellation,
without the record of the cancellation of the security deed.
Citizens Mercantile Co. v. Easom, 158 Ga. 604, 123 S. E.
383.
[ 89
Deed with Reconveyance Clause Not Treated as Mort-
gage.— Under this section an instrument, in all respects in
the form of a deed passing title, and executed for the pur-
pose of securing the payment of a described debt is not, be-
cause containing the clause: "Reconveyance of said prop-
erty to be made upon fulfillment of all the conditions of
this instrument," properly to be treated as a mere mort-
gage. Pitts v. Maier, 115 Ga. 281, 41 S. E. 570, overruling
Frost v. Allen, 57 Ga. 326, and Pirkle v. Equitable Mortg.
Co., 99 Ga. 524, 28 S. E. 34.
Transfer of Bond to Reconvey. — Where an owner of land
made a conveyance of it to secure a loan, taking bond for
reconveyance upon payment, and transferred the bond to
another, in the absence of fraud, one who subsequently ob-
tained judgment against the assignor of the bond, and who
was not shown to have been a creditor when the transfer
was made, did not have the right to subject the land after
the payment of the secured debt by the transferee of the
bond, the cancellation of the security deed under this sec-
tion, and the subsequent making of a quitclaim deed by the
secured creditor to the transferee. Burney Tailoring Co. v.
Cuzzort, 132 Ga. 852, 65 S. E. 140.
Cited in Cumming v. McDade, 118 Ga. 612, 45 S. E. 479;
Webb v. Harris, 124 Ga. 723, 53 S. E. 247; Turner v. Wood-
ward, 133 Ga. 467, 66 S. E. 160.
§ 3310. (§ 2775.) Liens against vendee do not
attach to the property. — The vendor's right to a
reconveyance of the property, upon his comply-
ing with the contract, shall not be affected by
any liens, incumbrances, or rights which would
otherwise attach to the property by virtue of the
title being in the vendee; but the right of the
vendor to a reconveyance shall be absolute and
permanent upon his complying with his contract
with the vendee according to the terms. Acts
1871-2, p. 45.
Original Owners without Fee on Mortgageable Interest. —
The original holders of the bond for title did not have either
a fee simple or mortgageable interest in the land which
they could convey to the purchaser at the first sheriff's
sale, or those who were substituted for •him, and therefore
were not protected by this section. Lanier v. Brooker, 65
Ga. 761.
Land held by absolute deed as security for a debt still
unpaid, is subject to levy and sale as the property of the
vendee, under a judgment against him, no matter whether
the judgment creditor gave credit on the faith of the prop-
erty so held or not. Parrott v. Baker, 82 Ga. 364, 9 S. E.
1068.
Cited in Gaskill v. Davis, 66 Ga. 665, 670; Bowen v. Frick
& Co., 75 Ga. 786; Cook v. Georgia Fertilizer & Oil Co., 154
Ga. 41, 113 S. E. 145.
§ 3310(1). Bill of sale to secure agricultural
advantages. — Where advantages either of money
or supplies or both are made for the purpose of
planting, cultivating, making or harvesting a
crop or crops the borrower or person to whom
such money or supplies shall be furnished may
secure the same by a bill of sale to secure debt
under Section 3306 of the Civil Code of 1910 cov-
ering the crop or crops to be grown by him with-
in twelve months from date of such bill of sale,
although such crop or crops may not be planted
or growing at the time of the execution of such
bill of sale. Such bill of sale shall pass the title
to the crop or crops covered thereby, and shall
not be held or construed to be a mortgage:
Provided, that the crop or crops together with
the land upon which the same is or will be
planted and grown shall be described in said bill
of sale and the amount of said advances in
money or supplies shall be definitely stated and
fixed therein, Provided the bill of sale herein au-
thorized shall not be construed to be superior
to the lien of the landlord for rent and supplies
of laborers liens. Acts 1925, p. 118.
1]
§ 3311
CONDITIONAL SALES
§ 3318
CHAPTER 7.
Trust Deeds to Secure Debts.
§ 3311. How enforced. — Whenever any person
has conveyed real property in this State by deed
to a trustee to secure the payment of a note or
notes or other debt owing to one or more per-
sons, the rights of the trustee named in said deed,
or his successor in estate, as well as the rights of
the holders or owners of the notes or other debts
in such real property, may be enforced in the
following manner: The trustee named in the
deed, or his successor in estate entitled to en-
force the deed, may, upon the request of two
thirds in amount of the indebtedness thereby
secured, but not otherwise, petition to the su-
perior court of the county of the residence of the
maker of the deed, or if there be more than one
maker, then in the superior court of the county
of the residence of either, or if the maker or
makers be non-residents of the State, then in the
superior court of the county wherein the land or
any part thereof conveyed by the deed is located,
or to the city court, if any, in such county having
jurisdiction of the amount claimed in the petition,
which petition shall contain a statement of the
case, the amounts demanded, and a description
of the property covered by the deed to secure
such demands; whereupon the court shall grant
an order directing the sums demanded in the pe-
tition, with interest and costs, to be paid into
court on or before the first day of the next term
immediately succeeding the one at which such
order is granted; which order shall be published
once a week for four weeks in some newspaper
generally circulated in such county, or served
on the maker of the deed, or his special agent or
attorney, at least twenty days previous to the
time at which the money is directed to be paid
in court aforesaid. Acts 1896, p. 76.
See 8 Cum. Dig. 704. As to power of sale in deeds of
trust, see § 4620. As to sales by trustees, see § 3755. As
to venue of civil cases at law, see § 5526. As to service
by publication, see § 5554, par. 8. As to corporate powers
of trust companies, see § 2817, pars. 6, 10.
§ 3312. Maker may defend, when and how. —
When an order for the payment of the sums de-
manded in the petition has been granted as here-
inbefore provided for, and the same has been pub-
lished or served as hereinbefore required, the
maker of the deed sought to be enforced, or his
special agent or attorney, may appear at the term
of the court at which the money is directed to be
paid, on or before the first day of such term, and
file his objection to the enforcement of said deed,
and may set up and avail himself of any defense
which he might lawfully set up in an ordinary suit
on the debt or demands secured by such deed, and
which goes to show that the petitioner is not en-
titled to enforce the same, or that the amounts
claimed are not due: Provided, that the facts of
such defense are verified by the affidavit of the
maker of such deed, or his special agent or at-
torney, at the time of filing the same.
As to verification of answer, see § 5639. As to judgments
by default, see § 5661.
§ 3313., 'Maker^s personal representative may
be sued. — When the maker of the deed is dead,
the proceedings to enforce the same may be in-
stituted against his executor or administrator.
§ 3314. When the issues stand for trial. — When
proceedings to enforce such a deed are instituted
and a defense is set up thereto, as hereinbefore
provided, the issues thus raised shall stand for
trial at the term at which the defense is made,
and be tried as other issues are tried, in the court
in which the proceedings were instituted.
As to judgments by default, see § 5661. As to continu-
ance at common law, see § 5710.
§ 3315. Judgment, lien thereof, deed reconvey-
ing, and sale. — When the maker of the deed,
after being directed so to do, fails to pay the sums
demanded in the petition, with interest and costs,
as hereinbefore required, and also fails to set up
and sustain his defense against the enforcement
of the rights of the trustee and holders or owners
of the notes or debts secured by the deed, the court
shall give judgment for the amounts which may be
due under such deed, to be levied of said real prop-
erty covered thereby, and shall order said real prop-
erty to be sold in the manner and under the same
regulations which govern sheriff's sales under
execution, upon such trustees making and having
recorded in the clerk's office of the superior court
of the county where the land lies a deed reconvey-
ing said real property to the defendant: Provided,
however, said judgment shall take lien upon said
real property prior to any claim or lien, except
taxes, whatsoever, arising or created subsequently
to the date of such deed to the trustee, if such
deed be filed and recorded as now provided by
law.
See § 3320. As to transfer of Hen of decree, see § 5432.
As to rank of liens for taxes, see § 3333.
§ 3316. To whom the money shall be paid. —
The money arising from the sale of the property
shall be paid to the trustee, unless claimed by
some other lien in the hands of the officer which
in law may have priority over the deed; and when
there shall be any surplus after paying the sums
due under the said deed or other liens, the same
shall be paid to the maker of the deed or his agent.
§ 3317. When the debt is due by installments.
— If the deed is given to secure debts due by in-
stallments, and is enforced' before any one of the
installments falls due, and there is a surplus of
funds as above stated, the court may retain the
funds or order the same invested to meet the in-
stallments still unpaid.
As to mortgage debts due by installments, see § 3272. As
to when proceeds of sale of mortgaged property may be re-
tained by court, see § 3285.
Cited in Strickland v. Lowry Nat. Bank, 140 Ga. 653,
654, 79 S. E. 539; McCurry v. Pitner, 159 Ga. 807, 126 S. E.
781.
CHAPTER 8.
Conditional Sales.
§ 3318. (§ 2776.) Conditional sales, how exe-
cuted.—-Whenever personal property is sold and
delivered with the condition affixed to the sale
that the title thereto is to remain in the vendor of
such personal property until the purchase-price
thereof shall have been paid, every such condi-
tional sale, in order for the reservation of title to
be valid as against third parties, shall be evi-
denced in writing, and not otherwise. And the
[ 892 ]
3318
CONDITIONAL SALES
§ 3318
/ritten contract of every such conditional sale
hall be executed and attested in the same mail-
er as mortgages on personal property; as he-
ween the parties themselves, the contract as
lade by them shall be valid and may be enforced,
/hether evidenced in writing or not.
I. In General.
II. Form and Requisites.
A. Writing, Execution, etc.
B. Particular Instruments.
II. Priority of Liens.
V. Rights and Remedies of Parties.
Cross References.
For full treatment, see 3 Cum. Dig. 625, 3 Enc. Dig. 94.
is to contract for conditional sale of rolling-stock, etc., see
2790. As to levy, when contract of purchase or bond for
itle made, see § 6037. As to validity and record of contracts
or the lease of rolling-stock, see § 2792. As to form and
xecution of mortgages, see § 3257. As to defective record
f mortgage, see § 3262. As to sales to secure debts, see §
306. As to criminal liability for selling or encumbering
iroperty held under conditional purchase, see § 722, P. C.
I. IN GENERAL.
See 3 Cum. Dig. 626, 3 Enc. Dig. 96.
Editor's Note.— Although the Acts 1880-1, p. 143, 144, have
lot been included on the margin of this section and § 3319
n any of the codes, yet this is undoubtably the act from
vhence these sections came. The code of 1882, in which
hese sections first appeared, cited the Acts 1878-9, p. 143,
44 on the margin, but this was palpably an error. The two
;ections appeared combined as § 1955 (a) of the code of 1882.
>ince that time they have been separated as two sections
md have remained substantially unchanged to date.
Object of Section.— The object of this section is to pre-
sent frauds and perjury which, in the absence of such a
aw, might be practiced by debtors and others in collusion
vith them to defeat creditors seeking to subject to their
daims property apparently belonging to the debtor. See
ihode Island Locomotive Works v. Empire Lumber Co., 91
}a. 639, 642; Merchants, etc., Bank v. Cottrell & Sons, 96
}a. 168, 170, 23 S. E- 127.
By this section a method is provided whereby one who
jells and delivers personal property may retain the title as
security until the purchase-price shall be paid. Wynn v.
ryner, 139 Ga. 765, 767, 78 S. E. 185.
Same— Time of Liens of Third Parties.— The object of this
section is to prevent fraud and perjury. Harp v. Patapsco
Guano Co., 99 Ga. 752, 758, 27 S. E. 181. And it makes no
iifference whether the lien of the third party arose out of
the transactions occurring before or after the making of
such conditional sale. Derrick v. Pierce, 94 Ga. 466, 19 S.
E 246; Austin v. Hamilton, 96 Ga. 759, 22 S. E- 304; Pen-
land v. Cathey, 110 Ga. 431, 433, 35 S. E. 659.
Strict Construction of Statute.— State statutes providing
For the enforcement of conditional sales are in derogation
of the rights of general creditors, and must be strictly con-
strued. In re Burke, 168 Fed. 994.
Railroad Equipment— Effect of Section 2790.— Sections 2790
et seq. operate to repeal this section no further than to pro-
vide a different method for the execution of contracts for
the conditional sale of railroad equipment. Central Trust
Co. v. Marietta, etc., R. Co., 48 Fed. 868.
Meaning of "Third Parties" in this Section. — See post,
this note, "Rights and Remedies of Parties," IV.
Bailment and Agency for Sale of Goods. — A contract by
the terms of which one person agrees to receive goods on
consignment to be sold by him as the agent of another with
no provision whatever for the acquisition of title to the
goods by the consignee, is not a contract of sale but of
bailment and agency for the sale of goods. National Bank
v. Goodyear, 90 Ga. 711, 16 S. E. 662.
Distinguished from Sale, Lease and Consignment. — See 3
Cum. Dig. 626.
Legal Title Vests when Purchase- Money Paid. — Where
personal property is delivered to the buyer under a contract
of conditional sale which is in writing and duly attested and
recorded as required by this section and § 3319, the legal
title will not vest in the purchaser until the purchase-price
has been paid. Atkinson v. Brunswick- Balke Collender Co..
144 Ga. 694, 87 S. E. 891. McCray v. Bledsoe, 26 Ga. App.
587, 106 S. E. 920.
Applied in Farmers Bank v. Avery & Co., 145 Ga. 449, 89
S. E. 409.
II. FORM AND REQUISITES.
See 3 Cum. Dig. 626, 3 Enc. Dig. 96.
A. Writing, Execution, etc.
See § 3257.
Necessity for Compliance with Section. — The reservation
of title by the seller of personal property is not valid as
against third persons, unless the contract of sale is in writ-
ing, and is also executed and attested in the manner pre-
scribed by law for the execution and attestation of mortgages
on personalty. Merchants, etc., Bank v. Cottrell & Sons,
96 Ga. 168, 23 S. E. 127.
Same — Effect of Improper Execution. — A contract not exe-
cuted and attested properly under this section is not en-
titled to record, and the reservation is ineffectual as against
creditors of the purchaser, at least where it is not shown
that they had actual notice thereof. General Fire Ex-
tinguisher Co. v. Lamar, 141 Fed. 353.
Where a written reservation of title is not properly exe-
cuted and recorded as required by this section and § 3319,
the reservation, while good between the parties and as
against general creditors and creditors with liens antedat
ing the sale, it is subject to liens obtained or debts arising
from credit given in good faith by reason of the buyer's
apparent ownership of the property. In re Braselton, 169
Fed. 960.
Oral Reservation — Written Reservation Improperly Exe-
cuted.— -Where there is a mere oral reservation of title and
no writing, the title will be so fixed in the buyer that the
rights of third persons obtaining judgments or liens antedat-
ing the sale may be enforced against the vendor's claim of
title, but if the reservation of title is in writing, though not
properly executed and recorded, the reservation is good as
between the parties and as against general creditors and
creditors with liens antedating the sale, and is only subject
to such liens as are obtained or debts arising from credit
given in good faith by reason of the buyer's apparent owner-
ship of the property. In re Atlanta News Pub. Co., 160
Fed. 519.
Must Be in Writing. — Under the direct provisions of this
section, a conditional sale is absolute as to subsequent credi-
tors, unless it is evidenced by writing. In re Gosch, 121
Fed. 602. See 3 Cum. Dig. 627, 3 Enc. Dig. 97. See post,
this note, "Particular Instruments," II, B.
Attestation — Quality. — The law embraced in this section
should not be held to mean that a reservation of title in a
written contract of sale is totally void as against third par-
ties unless the same be so attested that it is immediately
entitled to record. See § 3257. Hill v. Ludden, etc., Music
House, 113 Ga. 320, 322, 38 S. E. 752.
Same — Lex Situs Governs Mode. — Where a written con-
tract for a conditional sale of persorfal property is to be en-
forced in Georgia, the mode of attestation and record of the
contract will be fixed by the laws of this state. Burgsteiner
v. Street-Overland Co., 30 Ga. App. 140, 117 S. E. 268.
Where property, sold under a retention-of-title contract,
is brought into this State, the requirement which our law
imposes for the benefit of third persons, as to the attestation
of such contracts, is not dispensed, with by reason of the
fact that the property was purchased in a sister State. "It
is scarcely necessary to say that where the lex situs makes
the validity of a document to depend upon a certain mode
of acknowledgment and registry, these conditions must be
complied with. Their omission can not be made good by
the most solemn modes of attestation and registration
adopted by the State from which the document emanates."
Olmstead v. Carolina Portland Cement Co., 30 Ga. App. 125.
117 S. E. 255.
Same — Place of Execution. — Where a written contract of
conditional sale purported to have been executed at "Bufori,
Ga.," but it did not appear from the writing or attestation
where the attesting notary resided or received his appoint-
ment, this court will take judicial notice of the fact that
Buford is an incorporated town in this state in Gwinnett
county (Perry v. State, 113 Ga. 936, 938, 39 S. E. 315), and
it will be presumed that this attesting notary resided and
received his appointment therein, where he had the right
to attest such writings. Booker v. Bass, 127 Ga. 133, 56 S.
E. 283; Connolly v. Atlantic Contracting Co., 120 Ga. 213,
47 S. E. 575; Truluck v. Peoples, 1 Ga. 3; Beaty v. Sears,
132 Ga. 516. 64 S. E. 321.
Same— Witness Need Not Be an Official— Though attesta-
tion of a written contract for the conditional sale of per-
sonalty is necessary under this section to its being legally
recorded, yet it is not essential that the attesting witness
be an official, if proper probate is made. Burgsteiner v.
Street-Overland Co., 30 Ga. App. 140, 117 S. E. 268. See
also. Merchants, etc., Bank v. Cottrell & Sons, 96 Ga. 168,
23 S. E. 127; Hill v. Ludden, etc., Music House, 113 Ga. 320,
38 S. E. 752.
Same — By Officer Beneficially Interested. — A notary pub-
lic is disqualified from attesting a deed or bill of sale, so
as to entitle it to record, if he is pecuniarily or beneficially
893 ]
§ 3318
CONDITIONAL SALES
§ 3318
interested in the transaction. A stockholder of a corpora-
tion bears such financial relation to it that he is disquali-
fied, on account of interest, from attesting as a notary a
deed or bill of sale to which the corporation is a party.
Southern Iron, etc., Co. v. Voyles, 138 Ga. 258, 75 S. E. 248.
Same — By Clerk of Superior Court. — A conditional bill of
a term for the use of personal property, with a provision
that on making the last payment title shall vest in the so-
called lessee, constitutes a conditional sale. North m
Goebel, 138 Ga. 739, 76 S. E. 46.
Installment Payments for Standing Timber. — A written,
contract for the sale of standing timber, to be paid for in
sale may be executed before and attested by a clerk of a | monthly installments, with title to remain in the vendor
superior court in the county wherein he holds his office, and
may thereupon be properly recorded in any other county
wherein the vendee resides at the time of its execution.
Anderson v. Leverette, 116 Ga. 732, 42 S. E- 1026.
Same — As Against Buyer's Trustee in Bankruptcy. — The
attestation of a conditional sale contract, except as between
the parties, is essential, not only that it may be admitted
to record, but to its actual validity, and a contract not so
witnessed or recorded is invalid as against the buyer's trus-
tee in bankruptcy. In re Burke, 168 Fed. 994.
Date of Execution Not Appearing in Contract. — A contract
of conditional sale, which is in writing duly attested, and
recorded within thirty days from the date of the delivery
of the property, becomes effective as against third persons
from the date of the delivery of the property, even though
the date of the execution of the contract does not appear
therein. Tremere v. Barfield, 12 Ga. App. 774, 78 S.
until payment, was held, on default of payment, to be a
contract controlled by this and the following section. And
where such a contract was not recorded the usual rules as
to priority applied. In re Pickens Mfg. Co., 166 Fed. 585.
Agreement that agent use stock for rental and buy when-
ever he desires is not a sale with reservation of title and
need not be recorded under § 3319. Fyvans v. Napier, 111
Ga. 102, 36 S. E. 426.
Payment on Delivery.— Where a purchaser agrees to pay
for goods on delivery, either in cash at a named discount
or by note due in six months, the contract of sale is con-
ditional under this section, and the payment of the cash
or the giving of the note is a condition precedent to the
passing of title. Wheeler, etc., Mfg. Co. v. Savings Bank,
105 Ga. 57, 31 S. F. 48.
Where, however, the goods are delivered by the seller and
left for some time in the possession of the purchaser, no
E. 729; Bond v. Brewer, 96 Ga. 443, 23 S. E- 421; Rowe v. steps for their reclamation being taken by the seller, and
Spencer, 140 Ga. 540, 79 S. E. 144; Alexander v. Patterson, , the purchaser mortgages them to an innocent third party,
13 Ga. App. 591, 79 S. E. 482
Re-execution by Acknowledgments. -- Under this section
and §§ 3319, 3257, a conditional contract was signed by the
vendee without witnesses, his subsequent signing of an
acknowledgment of his original signature before a notary
public, who attests the last signature, held in legal effect a
re-execution. Saranac Mach. Co. v. Heyward, 293 Fed. 499.
Acknowledgment Not Equivalent to Attestation. — Where
an unattested sales contract, reserving title to certain per-
sonalty under which vendee is now the bankrupt, was ac-
knowledged and recorded more than four months prior to
bankruptcy, in view of Bankruptcy Act, § 47a (2) (Comp.
St. § 9631), and this section and § 3319, it is not valid as
against the trustee, as acknowledgment is not equivalent
to attestation. In re Marshall Co., 291 Fed. 268.
Signature of Vendor. — Where a vendor of personal prop-
erty delivers possession of it to the vendee, but receives
from the latter a promise to pay a stipulated amount there-
for and an agreement that the title shall remain in the
vendor until payment has been made, it is not generally
necessary to the validity of such a contract under this sec-
tion as against the vendee or one purchasing under him
that it should be signed by the vendor. Clarke Bros. v.
McNatt, 132 Ga. 610, 64 S. E. 795.
Description of Locality of Property and County of Maker's
Residence. — There is no provision of law requiring that an
instrument under this section shall state the locality of
property covered by it or upon whose land it is located, nor
need it specify the county of residence of the maker. Em-
pire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16,
93 S. E. 525.
Delivery of Property.— Under this section a written re-
tention of title by a seller, duly recorded, is necessary to
prevent its passage as to third parties only where the prop-
erty sold is delivered. In re Bartlett, 281 Fed. 191.
Where property was never delivered by the claimant to
the defendant against whom the distress warrant was pro-
ceeding, but both possession and title thereto were retained
by the seller, title did not pass as to third persons, and this
section did not apply. Leres v. Kytle, 17 Ga. App. 430, 87
S. E. 710.
B. Particular Instruments.
Instruments Can Not Be of Two Natures. — Under this
section an instrument in which title to personal property
is retained in the vendor until payment of the purchase-
price, and which contains also a stipulation that it is a
mortgage upon the property, should be construed as a re-
tention-of-title contract only. The provision as to its be-
ing a mortgage is invalid. The vendor and the vendee can
not by agreement make the paper one both retaining title
and not retaining title to the same property. Bacon v.
Hanesley, 19 Ga. App. 69, 90 S. E. 1033. In this case it is
stated that anything to the contrary in Kennedy v. Manry,
such conduct may amount to a waiver of the condition and
operate tc pass the title to the goods in to the purchaser.
Even if, in this case, the condition was not waived, still,
under the provisions of our code, the reservation of title was
not valid as against a third party without notice, the
conditional contract of sale having been neither executed
and attested nor recorded as provided by this section and
§ 3319. Wheeler, etc., Mfg. Co. v. Savings Bank, 105 Ga.
57, 31 S. E. 48.
Section Not Applicable to Cash Sale of Cotton. — This sec-
tion does not apply where a planter or commission merchant
makes a cash sale of cotton, although there may be a de-
livery of possession to the buyer on condition that the
cotton is not to become his property until he shall have
fullv paid therefor. Flannery v. Harley, 117 Ga. 483, 484,
43 S. E. 765.
Where Prepayment Omitted by Error. — Where property
which claimant had contracted to sell to a bankrupt for
cash came into its possession, through mistake of claimant,
without prepayment, the transaction was not a conditional"
sale within this section, but there was in law no delivery,
and the title remained in claimant by operation of law, and
it was entitled to reclaim the same or its proceeds from
the trustee. Southern Pine Co. v. Savannah Trust Co., 14t
Fed. 802.
Unconditional Delivery — No Act of Vendee to Be Per-
formed.— The evidence in the record makes a clear case of
a conditional sale of personal property as is contemplated
in this section. Where the property sold and the price to.
be paid were ascertained and determined; there was no act
of the vendee to be performed before the sale was com-
pleted; and the delivery, was unconditional. This contract
not being in writing, the reservation of title was not valid
(against third parties. Penland v. Cathey, 110 Ga. 431, 433„
35 S. E. 659.
Telegram Incorporating Subsequent Agreement in Origi-
nal.— Where an original agreement constituted a written
contract for a conditional sale, a subsequent telegram con-
firmed by letter, contracting for the sale of more property
"according to the original agreement," also constituted a
written contract of conditional sale. In re Atlanta News-
Pub. Co., 160 Fed. 519.
III. PRIORITY OF LIENS.
See 3 Cum. Dig. 633, 3 Enc. Dig. 104. See also, § 3319.
Renewal Note. — Where a new note containing a contract
of conditional sale, reserving title to the same property in
the vendor until payment of the purchase-money, was taken
to secure the same debt, and it was recited in the renewal
note that it was given only for the purpose of extending
the old conditional -sale note, this did not operate to dis-
tinguish the old note so as to postpone it to an interven-
ing mortgage given by the vendee, although the old con-
tract of conditional sale may have been marked paid, sur-
6 Ga. App. 816, 66 S. E. 29; Mitchell v. Castlen, 5 Ga. App. ) rendered to the vendee, and canceled of record. Carlton
134, 62 S. E. 731, and Puett v. Edwards, 17 Ga. App. 645,
88 S. E. 36, will not be followed.
Section Not Applicable to Provision in Rent Note. — This
section and § 3319 are not applicable to a provision in a
rent note putting title to crop in landlord. Del,aigle v.
Shuptrine, 28 Ga. App. 380, 110 S. E. 920.
Stipulations for Paying Rent or Hire. — A written instru-
ment containing stipulations for paying rent or hire during
Supply Co. v. Battle, 142 Ga. 605, 83 S. E. 225.
Parol Conditional Sale and Judgment. — Where a sale in
parol and delivery of a yoke of oxen were made, upon the
condition that when the vendee paid for them they were to
be his, and the contract was not reduced to writing, the
property was subject to levy and sale under an execution
against the vendee from a prior judgment. Mann v. Thomp-
son, 86 Ga. 347, 12 S. E. 746.
[ 894 ]
§ 3318
CONDITIONAL SALES
§ 3319
IV. RIGHTS AND REMEDIES OF PARTIES.
See 3 Cum. Dig. 634, 3 Enc. Dig. 109.
Meaning of "Third Parties" as Used in Section. — The
term ''third parties," as used in this section and in ac-
cordance with the general law, means creditors having a
lien on the property conditionally sold, and not ordinary
creditors, and that, as to the latter, the conditional sale
contract was valid though not recorded. John Deere Plow
Co. v. Anderson, 174 Fed. 815; Central Trust Co. v. Mari-
etta, etc., R. Co., 48 Fed. 868, 1 C. C. A. 133; Bacon v.
Hanesley, 19 Ga. App. 69, 90 S. E. 1033. See also, In re
Thomas, 283 Fed. 676.
These words do not embrace one whose title has been
acquired by gift and who has parted with no valuable con-
sideration therefor. Kaplan v. Collier, 16 Ga. App. 620, 622,
85 S. E. 946.
But, a judgment creditor whose lien is obtained before
the conditional sale is made is not one of the third per-
sons referred to in this section. If, however, his lien is
acquired after the conditional sale is made, he does come
within its terms. Phillips, etc., Co. v. Drake, 13 Ga. App.
764, 765, 79 S. E. 952; American Law Book Co. v. Bruns-
wick Crosstie, etc., Co., 12 Ga. App. 259, 77 S. E. 104.
One who, in consideration of the execution of a bill of
sale, surrenders to the vendee a valid mortgage on other
property, and cancels the debt evidenced thereby, is a third
person, within the meaning of this section. Tremere v. *
out notice of such limitation, other than the mere recording
of the contract, the duty of seeing that he receives the
proceeds of the sale or sales; nor, as against such a bona
fide purchaser without notice, can he accomplish such re-
sult by stating in the contract that the sales shall be made
to a purchaser who will make the checks payable to him.
Clarke Bros. v. McNatt, 132 Ga. 610, 64 S. E. 795.
Same — Authority to Sell. — This section and § 3319 pro-
vides for the making of a sale with reservation of titie
in the vendor until the purchase-money shall have been
paid, and that such contracts may be good not only be
tween the parties but also against third parties, even in-
nocent purchasers without actual notice, if they are exe-
cuted and recorded in accordance with the statute. It
does not provide generally for affecting the world with no-
tice of all contracts of bailment, agency or partnership. A
contract for the retention of title in a vendor until pay-
ment, though the possession of the chattel is delivered to
the vendee, normally contemplates a lack of authority in
the vendee to sell until payment, at least to sell more than
such interest as he has. Authority to sell the entire title
to a third party is inconsistent with its retention by the
vendor. Where, therefore, a vendor, who reserves title
until payment, confers upon his vendee the power to sell
the chattel, he confers a power to destroy his retention of
title. Clarke Bros. v. McNatt, 132 Ga. 610, 618, 64 S. E.
Barfield, 12 Ga. App. 774, 78 S. E- 729.
This section does not declare that third persons must
acquire a lien in order to be protected. If they honestly,
and without notice of any want of title in the vendee, ex-
tend to him credit and part with property upon the faith
of his apparent ownership, the parol reservation of title
will not affect them at all. Wood v. Evans, 98 Ga. 454,
455, 25 S. E. 559.
Same — Necessity for Privity with Vendee. — The provi-
sion of this section and § 3319, does not operate to protect
a third person not in privity with the vendee. Singer
Sewing Mach. Co. v. Wardlaw, 29 Ga. App. 626, 116 S. . E-
207.
Rights of Purchaser of Vendee. — Where, under the ex-
press or implied terms of a sale, the purchase-price is to
be paid upon delivery of the goods, and the vendor, with-
out collecting the purchase-price, nevertheless proceeds
to make delivery in pursuance of his contract, and the
vendee, after such delivery, proceeds to resell the goods to
a bona fide purchaser for value, the rights of such inno-
cent third person are governed by the provisions of this
section and § 3319 relative to conditional sales, and the
vendor can not recover the goods from such innocent pur-
chaser, where the terms of sale had not been reduced to
writing and recorded as required by the statute. Morris
& Co. v. Walker Bros. Co., 29 Ga. App. 476, 116 S. E. 201.
The title of one who buys and pays- for personal property
held by his vendor under a conditional contract of sale,
which has never been recorded, and of which he has no
notice, is unaffected by such conditional contract of sale.
And this is true although subsequently thereto he may
have notice of the contract of conditional sale within the
time the law gives for its record, where the bill of sale is
not properly recorded within such time. Rowe v. Spencer,
132 Ga. 426, 64 S. E. 468.
Delivery before Writing — Sale to Third Person, — It was
held under this section that a delivery of property before
the writing was executed, and a sale made to a third per-
son without notice, did not defeat a reservation of title.
Rowe v. Spencer, 140 Ga. 540, 79 S. E. 144.
For full treatment of the rights of purchasers from the i 7^™,^!*"" '
vendee, see 3 Cum. Dig. 637, 3 Enc. Dig. 109. | sections. "nneCeSSary t0 repeat the Paragraphs under both
Parol Conditional Sale Complete as to Third Parties. —
Liability of Vendor to Mortgagee of Vendee.— Under this
section a vendor taking back and concealing property sold
under an unrecorded conditional contract is liable to one
to whom the vendee mortgaged the property. Anderson
v. Adams, 117 Ga. 919, 43 S. E. 982.
A judgment against the purchaser, obtained by a third
person after a parol conditional sale, bound the property,
and its lien was not lost because of the subsequent giving
of a note, nor affected by a final settlement between the
seller and the purchaser whereby the contract of sale was
rescinded and the property was returned to the former.
Harp y. Patapsco Guano Co., 99 Ga. 752, 27 S. E. 181.
Rescission by Vendor.— From the facts of the instant case,
the court, who tried the case without a jury, could infer
that the vendor had rescinded the conditional sale. Mal-
lary Bros. Mach. Co. v. Thomas, 142 Ga. 786, 83 S. E. 783.
§ 3319. (§ 2777.) How recorded. — Condi-
tional bills of sale must be recorded within thirty
days from their date, and in other respects shall
be governed by the laws relating to the registra-
tion of mortgages.
I. General Consideration.
II. Improper Record and Failure to Record.
III. Priorities.
A. In General.
B. Among Particular Instruments.
Cross References.
For full treatment, see 3 Cum. Dig. 628, 3 Enc. Dig. 100.
See also, 9 Cum. Dig. 923. In addition, see notes to §§
3318, 3320. As to record of deeds to secure debts, see 5
3307. As to registry of mortgages, see § 3259. As to
record of contracts for conditional sale of rolling stock see
§ 2792.
I. GENERAL CONSIDERATION.
Editor's Note.— For history of this section, see "Editor's
Note" under § 3318. Many cases pertaining to record will
also be found under that section, in view of the fact that
attestation and record are so closely allied, and it was
Where personal property was sold and delivered under a
parol contract, a condition therein, that the title should
remain in the seller until the property was paid for, was,
under this section, inoperative as to third persons. Re-
latively to them, the sale was complete upon the delivery
of the property, and the title passed at once to the pur-
chaser; and, therefore, their rights in the premises were not
affected by his subsequently executing and delivering to
the seller a promissory note for the purchase money, where-
in the latter's reservation of title, as originally agreed
upon, was set forth. Harp v. Patapsco Guano Co., 99 Ga.
752, 27 S. E. 181.
Right of Sale in Vendee — Purchaser's Duty Thereto. —
If a vendor of personal property retains title under a writ-
ten and recorded contract until payment of the purchase-
money, but it is also provided in such contract that the
vendee may sell the property, consisting of lumber to be cut
and carried to market, the vendor can not impose on a
bona fide purchaser or purchasers from his vendee, with-
Section Limited to Conditional Sales.— This section and
section 3318 by their terms are limited to conditional sales
reserving titles and have no reference to, and do not re-
quire the record of, any other kind of instrument. De-
Laigle v. Shuptrine, 28 Ga. App. 380, 110 S. E- 920.
Necessity for Recordation.— See post, this note, "In Gen-
eral," III, A.
Same— Record Necessary Only as against Third Parties.
—Only as against third parties must a retention -of -title
contract be probated and recorded. As between the parties
themselves and persons who have notice, the reservation
of title is good whether recorded or not. American Law
Book Co. v. Brunswick Crosstie, etc., Co., 12 Ga. App. 259,
77 S. E. 104; Tremere v. Barfield, 12 Ga. App. 774, 777, 77%,
78 S. E. 729; Bacon v. Hanesley, 19 Ga. App. 69, 90 S. E-
1033. As to who are "third persons," see the note to § 3318.
Lex Situs Governs Mode of Record.— Where a written
contract for a conditional sale of personal property is to be
enforced in Georgia, the mode of attestation and record of
the contract will be fixed by the laws of this state. Burg-
[895]
3319
CONDITIONAL SALES
§ 3319
steiner v. Street-Overland Co., 30 Ga. App. 140, 117 S. E.
268. See also, Olmstead v. Carolina Portland Cement Co.,
30 Ga. App. 126, 117 S. E. 255.
County of Record. — See notes to § 3259.
Date of Record.— Under this section, where the contract
clearly bears date, it must be recorded within 30 days
from that time, and not within 30 days from the actual de-
livery of the property sold. In re Gosch, 121 Fed. 602.
The date when the contract was fully completed was the
date of the delivery of the property, and not the date of
the making of the contract, or of its acceptance by the
seller and hence it was recorded within 30 days from its
date, 'as required by this section, in order to be binding as
against other creditors of the buyer. In re Gosch, 121
Fed. 602. . ,
Filing with Clerk as Record.— The rights of an innocent
purchaser for value are not affected by the mere filing of
a conditional bill of sale with a reservation of title to the
property purchased without notice. The law requires that
such a bill of sale shall be actually recorded under this
section in order to effect notice to one purchasing in good
faith; 'and the filing with the clerk of such an instrument
is not a compliance with the law. Battle v. DeLoach, 18
Ga App. 526, 89 S. E. 1050.
Record as Notice to Mortgagee of Vendee.— The record
of a duly attested retention-of-title note under this sec-
tion is constructive notice to a mortgagee, taking from
the vendor a mortgage upon the property to which title is
retained by him in such instrument, of the title ot an-
other, who may have previously taken in good faith and
for value a transfer of such note and title, although at the
time of the execution of the mortgage the vendor was in
possession of the property; and the mortgagee takes sub-
ject to the title previously acquired by the holder ot the
outstanding retention-of-title note. Patterson Co. v. Peo-
ples Loan, etc., Co., 158 Ga. 503, 123 S. E. 704.
Property Subsequently Removed to Another County. —
Where a contract of conditional sale is properly executed
and recorded, the record thereof is notice to third person:,,
notwithstanding the property may subsequently be re-
moved into another county by the purchaser with the
knowledge and consent of the vendor. Atkinson v. Bruns-
wick-Balke-Collender Co., 144 Ga. 694, 87 S. E- 891.
Rent Note Putting Title to Crop in Landlord.— See notes
of DeLaigle v. Shuptrine, 28 Ga. App. 380, 110 S. F- 920,
under "Particular Instrument," II, B, § 3318.
Conditional Bill of Sale as Evidence.-When properly re-
corded under this section, a conditional bill of sale is ad-
missible in evidence under the same rules as govern the
admission of registered mortgages. Anderson v. Leverette
116 Ga. 732. See also, post, this note, "Improper Record
and Failure to Record," II. .
Applied in Empire Cotton Oil Co. v. Continental Gin Co.,
21 Ga. App. 16, 93 S. E- 525; Battle v. DeLoach, 18 Ga.
App. 526, 89 S. E. 1050.
II. IMPROPER RECORD AND FAILURE TO RECORD.
See 3 Cum. Dig. 628, 3 Enc. Dig. 100. See also post, this
note, "Priorities," III.
Unrecorded Conditional Sale Absolute as to Third fer-
sons.-A conditional contract of sale being neither executed
and attested nor recorded as required by this sectum, the
reservation of title was not effectual as against third per-
sons without notice, and the sale was, as to them, an ab-
solute one. Wheeler, etc., Mfg. Co. v. Irish American
Dime Savings Bank, 105 Ga. 57, 61, 31 S. E- 48.
Relatively to subsequent creditors of- the purchaser, a
conditional sale of chattels not duly recorded as required
by this section is the same as an absolute sale. Steen v.
Harris, 81 Ga. 681, 8 S. E. 206. See also, In re Gosch, 121
Fed. 602. '; .
Record without Attestation.— Where a paper which this
section requires shall be attested as a mortgage on person-
alty in order to admit it to record, was not attested at all,
the actual record of it was notice to nobody. Cunningham
& Co. v. Cureton, 96 Ga. 489, 23 S. E- 420. See also, In re
Marshall Co., 291 Fed. 268, 271.
The omission of the clerk to enter the fact of the record
on the paper, if true, did not invalidate or effect its regis-
try. Grice v. Haskins, 73 Ga. 700.
Where Note Improperly Executed and Incapable of Rec-
ordation.—The maker of a note which is so improperly exe-
cuted as to be incapable of execution is estopped, from
thereafter pleading that it was the duty of the payee to
have the note recorded. Bacon v. Hanesley, 19 Ga. App.
69, 90 S. E- 1033. .
Unrecorded Conditional Sale as Evidence.— Although it
was unrecorded, the retention-of-title contract offered m
evidence by the plaintiff was evidence to establish
the fact that it reserved title to the property in the plain-
tiff after selling it to the first named purchaser. This
contract was therefore improperly excluded from evidence
when offered by the plaintiff with proof of its execution by
the subscribing witnesses thereto. See §§ 5833, 5834.
Singer Sewing Machine Co. v. Wardlaw, 29 Ga. App. 626,
116 S. E- 207. See also, post, this note, "General Con-
sideration," I.
III. PRIORITIES.
See 3 Cum. Dig. 633, 3 Enc. Dig. 104.
A. IN GENERAL.
Rule of Priority of Mortgages Applicable.— Under this
section the effect of failure to record the contract is the
same as in failing to record a chattel mortgage. Morton
v. Frick Co., 87 Ga. 232, 13 S. E- 463; Phillips, etc., Co. v.
Drake, 13 Ga. App. 764, 79 S. F- 952. It follows that the
junior mortgagee, to retain priority, must have recorded
his mortgage in time. Myers v. Picquet, 61 Ga. 260;
Cottrell & Sons v. Merchants etc., Bank, 89 Ga. 508, 515,
15 S. E. 944.
Necessity for Recordation. — Unless the property is re-
corded as required by this section the sale is absolute as
to third persons; and where the purchaser subsequently
gives the property to another, the property generally be-
comes subject to the debts of the latter, reduced to judg-
ment, especially where the creditor of the donee in pos-
session had no actual notice of the existence of the condi-
tional contract of sale, and that the property covered by
that contract had not been paid for, and extended credit on
the faith thereof. Reisman v. Wester, 10 Ga. App. 96, 72
S. E- 942. See also, In re Braselton, 169 Fed. 960; In re
Pickens Mfg. Co. 166 Fed. 585; Cunningham & Co. v.
Cureton, 96 Ga. 489, 23 S. E- 420.
Record Not Necessary as to Unsecured Creditors. — Under
this section and § 3260 the record of a conditional sale with-
in 30 days is not necessary as against unsecured creditors
of the 'buyer. In re Brown Wagon Co., 224 Fed. 266.
Same — Effect of Actual Notice. — But in the case of liens
created by contract, actual notice of the vendor's rights
by the junior lien creditors will dispense with recordation
of the conditional contract, just as such notice would dis-
pense with recording a mortgage. Rhode Island Locomotive
Works v. Empire Lumber Co., 91 Ga. 639, 17 S. E. 1012.
See also, Glisson v. Burkhalton, 31 Ga. App. 365, 120 S. E-
664; Morton v. Frick Co., 87 Ga. 232, 13 S. E- 463.
No Protection to Third Party Not in Privity with Ven-
dee— The provision in this section and § 3318, do not
operate to protect a third person not in privity with the
vendee. Singer Sewing Machine Co. v. Wardlaw, 29 Ga'.
App. 626, 116 S. E. 207.
Same — Property Transferred without Consideration. —
Where the contract is not recorded within the time pre-
scribed by this section, the vendor may nevertheless re-
cover the property . from one who has acquired from
the vendee by gift, even though the donee had no actual
knowledge of the vendor's title. Kaplan v. Collier, 16 Ga.
App. 620, 85 S. E- 946.
B. Among Particular Instruments.
Vendor and General Creditors. — Where a conditional sale
of property to a bankrupt was not valid as against subse-
quent creditors whose claims were contracted or the faith
of the bankrupt's ownership of the property conditionally
sold, because of the conditional vendor's failure to record
the reservation of title as required by this section, and
the referee found as a fact that such omission operated to
defraud such subsequent creditors, the vendor was not en-
titled to the allowance of his claim as a secured claim,
but was required to share equally with general creditors.
In re Braselton, 169 Fed. 960.
Mortgage Lien and Lien of Vendor. — Where a conditional
sale note is not recorded, and the maker thereof executes
a mortgage on the personal property to one without no-
tice of the conditional sale, the lien of the mortgage is su-
perior to the title of the vendor, even if the personal prop-
erty is thereafter surrendered to him. Anderson v. Adams
& Co., 117 Ga. 919, 43 S. E. 982.
Under this section where one takes and has recorded a
mortgage on personal property held by the mortgagor under
a conditional contract of sale which antedates the mort-
gage by more than thirty days, but which has never been
recorded and of which the mortgagee has no notice at the
time of the execution of the mortgage, the lien of the
mortgage is superior to that of the original vendor. That
the mortgagee had notice of the conditional sale before the
record of the mortgage but after its execution does not
alter the case. Singer Mfg. Co. v. Bradfield, 114 Ga. 303,
40 S. E- 271.
The retention of title by the vendor in a written con-
tract of sale of personal property with the condition af-
[ 896 ]
§ 3319
REGISTRATION OF TRANSFERS AND LIENS
§ 3320
fixed that the title is to remain in the vendor until the
purchase price shall have been paid, though the instru-
ment be not recorded within the time prescribed by this
section, will prevail over the lien of a subsequent mort-
gage on the same property, executed by the conditional
vendee to a creditor who gives credit and takes the mort-
gage without notice of the vendor's title, the mortgage
also not being recorded in time. Cottrell & Sons v. Mer-
chants etc., Bank, 89 Ga. 508, IS S. E. 944.
Judgment Lien and Lien of Vendor. — Where personal
property is delivered under a contract of conditional sale,
and afterwards and before the contract has been recorded
a judgment against the purchaser is obtained by a third
person, the lien of the judgment has priority over the ven-
dor's unrecorded reservation of title. Phillips etc., Co. v.
Drake, 13 Ga. App. 764, 79 S. E. 952.
A contract of conditional sale of personal property,
though not recorded until after the expiration of thirty
days from the date of its execution under this section,
will take precedence of a judgment obtained against the
purchaser after the actual record of the contract. Holland
& Co. v. Adams, 103 Ga. 610, 30 S. E. 432.
Where one made a conditional sale of personal property,
retaining the title in himself to secure the purchase money,
a failure to record the contract within thirty days, as re-
quired by this section, did not render the property subject
to a judgment which had been rendered in favor of a third
party against the vendee of the personalty prior to the
making of the sale. As to such a judgment creditor, the fail-
ure to record the contract of sale was immaterial. Conder
v. Holleman & Ballard, 71 Ga. 93.
Same — Improper Record of Conditional Sale. — Under this
section the record of a contract of conditional sale of per-
sonalty delivered to the purchaser, the instrument being at-
tested by one witness but no probate being made to pre-
pare it for record, is without effect, and a judgment
against the conditional purchaser afterwards rendered,
even upon an antecedent debt, will bind the property; nor
will a rescission of such contract of sale by the parties
thereto, after a judgment lien attached, affect the lien.
Derrick v. Pierce, 94 Ga. 466, 19 S. E. 246.
Same — No Evidence of Recordation of Conditional Sale. —
Where it does not appear from the brief of evidence that
the contract of sale was ever recorded, it is held, that upon
the trial of the issue made where the vendor of the per-
sonalty filed a claim to the property levied on, the judg-
ment lien had priority over the unrecorded conditional bill
of sale, and that a verdict finding the property not sub-
ject was not authorized. Southern Iron, etc., Cc. v.
Voyles, 138 Ga. 258, 75 S. E. 248; Pickard v. Garrett, 141
Ga. 831, 82 S. E. 251; Farmers Bank v. Avery & Co., 145
Ga. 449, 89 S. E. 409.
Lien Created by Levy of Attachment. — In a contest be-
tween the holder of an unrecorded retention-of-title note
under this section and a creditor of its maker under a lien
created by the levy of an attachment, judgment in favor
of the latter was properly rendered. Bradley & Co. v.
Cochran, 27 Ga. App. 463, 108 S. E- 624.
A junior attachment levied on the property embraced in
the conditional sale illegally recorded, but founded on a
debt antecedent to the conditional bill of sale, has priority
of lien over the conditional bill of sale. Southern Iron, etc.,
Co. v. Voyles, 138 Ga. 258, 75 S. E. 248.
Lien of Purchaser under Sale of Property Levied on as
Property of Third Person. — Where an owner of personal
property sells it to a person under a retention-of-title con-
tract which is not recorded, under this section and the
property is thereafter levied on as the property of a third
person, who has no title to, and no rights whatever in, the
property, a purchaser of the property at a constable's sale,
made for the purpose of satisfying the indebtedness for
which the levy was made, acquires no title whatsoever to
the property, in the absence of a statute to the contrary
or an estoppel of the plaintiff, even though the purchaser
is a purchaser bona fide for value, without notice. Singer
Sewing Machine Co. v. Wardlaw, 29 Ga. App. 626, 116 S.
E. 207.
Lien of Bankrupt's Trustee. — The right of a trustee to
property held by the bankrupt under a contract of condi-
tional sale not recorded as required by this section, or the
proceeds of such property, coming into his hands, is su-
perior to that of the seller. In re Farmers Supply Co., 196
Fed. 990.
The lien of a bankrupt's trustee has no priority over a
claim under a contract of conditional sale, executed in good
faith prior to the 4-months period, but recorded within
that time; but the claim under the conditional sale con-
tract is to be allowed as a secured claim against the fund
arising from the sale of the particular machinery specified
in such contract. In re Brown Wagon Co., 224 Fed. 266.
Ga. Code — 29 [ 897 ]
CHAPTER. 9.
Registration of Transfers and Liens.
§ 3320. (§ 2778.) Instruments requiring record
take effect, when. — Deeds, mortgages, and liens
of all kinds, which are now required by law to be
recorded in the office of the clerk of the superior
court of each county within a specified time, shall,
as against the interests of third parties acting in
good faith and without notice, who may have ac-
quired a transfer or lien binding the same prop-
erty, take effect only from the time they are filed
for record 7h the clerk's office. And the said clerk
is required to keep a docket for such filing, show-
ing the day and hour thereof, which docket shall
be open for examination and inspection as other
records of his office. Acts 1889, p. 106.
I. In General.
II. Priorities.
Cross References.
For full treatment, see 9 Cum. Dig. 921 et seq., 11 Enc.
Dig. 105 et seq., and reference there given. As to record
of deeds, see § 4198. As to record of marriage contracts,
see § 3002. As to dormancy of judgments, see § 4355. As
to record of mortgages, see §§ 3257, 3259. As to record of
security deeds, see § 3307. As to record of conditional
sales, see § 3319. As to duty of clerk regarding records,
see § 4892, par. 10. As to when mortgage on crops su-
perior to older judgments, see § 3349. As to record of
bonds for title, see § 4213. As to record of tax officer's
bonds, see § 1243.
I. IN GENERAL.
Editor's Note. — From the wording of this section it would
appear that deeds and mortgages must be recorded within
a "specified time." Such, however, is no longer the law.
For full explanation, see the Editor's Note to § 3257.
Scope and Purpose of Section. — This section does not
create a new competition between deeds of bargain and
sale and the liens of judgments. Its scope is to fix the
time when, and the manner in which, liens acquired by
contract or obtained by operation of law are to take ef-
fect, and to settle their priorities. Donovan v. Simmons,
96 Ga. 340, 22 S. E. 966.
This section was intended not only for the protection of
innocent creditors who might acquire liens or transfers of
property of a defendant in fi. fa. to secure their debts, but
also for the protection of bona fide purchasers for value
who obtain title to such property by absolute deed. Harvey
v. Sanders, 107 Ga. 740, 33 S. E. 713.
Construction of Section as to Deeds. — This section must
be construed in connection with § 4198. Wadley Lumber
Co. v. Lott, 130 Ga. 140, 60 S. E. 806; White v. Interstate
Building, etc., Asso., 106 Ga. 146, 32 S. E- 26.
The registry of a deed not attested, proved, or acknowl-
edged according to law, is not constructive notice to a
subsequent bona fide purchaser. Coniff v. Hunnicutt, 157
Ga. 823, 122 S. E. 694.
This Section Does Not Affect Section 6038.— This sec-
tion does not affect the statutory method provided by §
6038 for redeeming land of a judgment debtor and subject-
ing it to the judgment. Dedge v. Bennett, 138 Ga. 787, 76
S. E. 52.
Section Does Not Change Rule in Claim Case. — The well-
settled rule, in a claim case, that the plaintiff in execution
makes out a prima facie case by proving that the prop-
erty claimed was in possession of the defendant in fi. fa.
after the rendition of the judgment, was not changed by
the passage of this section. Russell & Co. v. Morris, 134
Ga. 65, 67 S. E. 404.
Deed Takes Effect from Time of Filing Regardless of
Subsequent Improper Record. — Since the passage of this
section, the filing for record of a mortgage which on its
face is entitled to be recorded is notice to all third persons
without notice, although the mortgage may be afterwards
so defectively recorded that the actual record is not such
notice. In such a case the filing for record is sufficient
notice to all third persons without notice. Durrence v.
Northern Nat'l Bank, 117 Ga. 385, 43 S. E. 726; Greenfield
v. Stout, 122 Ga. 303, 50 S. E. Ill; Henderson v. Armstrong,
128 Ga. 808, 58 S. E. 624; Wadley Lumber Co. v. Lott, 130
Ga. 140, 141, 60 S. E. 806; Blakely Artesian Ice Co. v.
Clarke, 13 Ga. App. 574, 578, 79 S. E. 526; Brown v. Aaron,
20 Ga. App. 592, 93 S. E. 258.
Where it appears that only an unofficial witness attested
the mortgage before it was filed, and attached to the mort-
3320
REGISTRATION OF TRANSFERS AND UENS
§ 3321
gage is an affidavit by the subscribing witness, made be-
fore a notary public, proving the execution of the mort-
gage, but bearing date next after that of the certificate as
to the filing of the mortgage for record, and that on the
date of such probate the mortgage was actually recorded
in the book kept for record of such mortgages in the clerk's
office of the superior court, the lien of the mortgage so
executed and recorded, under this section and § 3259, as
against other mortgages, will take effect from the date of
the record. And the fact that no certificate of filing for
record was entered on the mortgage after it was so re-
turned to the clerk's office, and that the certificate of filing,
which had been entered on it before the affidavit for pro-
bate was procured, was not signed by the clerk, but by the
deputy clerk, would not defeat the lien of the mortgage,
or the effect of the subsequent filing and record. Albany
Nat. Bank v. Georgia Banking Co., 137 Ga. 776, 74 S. E-
267.
Section Applicable Only to Contract "Liens." — Inasmuch
as the word- "lien," as used in the phrase "who may have
acquired a transfer or lien binding the same property," ap-
plies only to liens acquired by contract, and not to those
obtained by judgment, the consequences of a failure to rec-
ord a deed of actual purchase are exactly the same now as
they were prior to the passage of this section. Donovan
v. Simmons, 96 Ga. 340, 22 S. E. 966.
And a valid deed, though unrecorded, is superior to a
subsequent judgment or attachment against the same
property. Smith v. Worley, 10 Ga. App. 280, 282, 73 S. E-
428.
Not Applicable to Materialman's Lien. — The rule of this
section is not applicable to a materialman's lien for the
reason that actual recording is indispensable to the creation
of liens of this character. Jones v. Kern, 101 Ga. 309, 28
S. E. 850.
Deed Constituting Muniment of Purchaser's Title. — In
view of the provisions of this section, a deed which consti-
tutes one of the muniments of a purchaser's title is a deed
to same land, and not a deed from his grantor to other
land; and this is true even though the prior deed of his
grantor conveys a lot or parcel of the same general tract.
Hancock v. Gumm, 151 Ga. 667, 107 S. E- 872.
Description of Situation of Land Conveyed. — A registered
security-deed reciting as matter of description that the
land thereby conveyed is situated in a named city, county
and state, and further describes it by reference to a desig-
nated map and other papers is sufficient to put a subse-
quent purchaser of this lot from the same grantor on notice,
under this section, as to what land was in fact conveyed by
such deed. Talmadge Bros. & Co. v. Interstate Building
etc., Ass'n, 105 Ga. 550, 31 S. E. 618.
II. PRIORITIES.
See ante, "In General," I.
Contest between Deeds.- — See § 4198.
Construing this section and §§ 4110, 4198. a voluntary
deed, though duly recorded and taken without notice of a
prior voluntary deed executed by the same grantor and
not recorded, does not give to the second grantee a priority
over the first. Tcole v. Toole, 107 Ga. 472, 33 S. E. 686.
Before the passage of this section, where there was a
contest between two deeds whereby a person conveyed the
same land to different persons, and neither deed was re-
corded within twelve months from the date of its execu-
tion, the older deed would prevail. Davis v. Harden, 143
Ga. 98, 84 S. E. 426; Roles v. Shivers, 152 Ga. 798; Randall
v. Hamilton, 156 Ga. 661, 119 S. E- 595, 111 S. E. 189.
Since the passage of this section, a senior unrecorded
deed loses its priority over a subsequent recorded deed
from the same vendor, taken for a valuable consideration
and without notice of the existence of the older deed.
Dickson v. Champman, 153 Ga. 547, 112 S. E- 830.
Contest between Common Law Judgments. — This section
has no application to contests between ordinary common
law judgments. Griffith v. Posey, 98 Ga. 475, 25 S. E- 515.
Mortgage Lien and Common Law Executions. — The filing
of a mortgage in the office of the clerk of the superior
court of the county in which the land lies is, from the
time of its filing, notice to the world of its existence under
this section, and therefore the lien of a mortgage so filed,
though not properly recorded, is superior to that of com-
mon-law executions entered on the docket after the filing
of the mortgage. Merrick v. Taylor, 14 Ga. App. 81, 80
S. E. 343.
This section is not applied in a contest between a mort-
gage and distress warrant for the appropriation of a fund
arising from a sale of the mortgaged property. Jones v.
Howard, 99 Ga. 452, 22 S. E. 291.
Contest between Deed from Heir and Deed of Ancestor —
Prior to Section.— Prior to this section, a recorded deed
from an heir or devisee was inferior in dignity to an un-
recorded deed of the ancestor. Webb v. Wilcher, 33 Ga.
565; McCandless v. Inland Acid Co., 108 Ga. 618, 34 S. E.
142; Equitable Loan etc., Co. v. Lewman, 124 Ga. 190, 202,
52 S. E. 599.
Same — Rule Since Section. — Since the passage of this sec-
tion, an unrecorded deed made by a testatrix is ordinarily
to be regarded as inferior in dignity to a deed, duly re-
corded, subsequently made by her devisee to an innocent
purchaser for value without notice of the prior conveyance.
But this section has no application to a case where the
testatrix recognized in her will the title of her donee, and
the purchaser from her devisee was thus put upon notice
that the property conveyed to him formed no part of the
estate of the testatrix and could not be regarded as pass-
ing to the devisee under the residuary clause of the will.
Equitable Loan, etc., Co. v. Lewman, 124 Ga. 190, 52 S. E-
599. See § 3020(1).
Contest between Purchaser at Judicial Sale and Prior
Conveyance by Owner. — Under this section a purchaser of
land at judicial sale, acting in good faith and without no-
tice, acquires title as against a prior conveyance by the
owner, unrecorded at the time of the making and confirma-
tion of such sale. Ousley & Bro. v. Bailey & Co., Ill Ga.
783, 36 S. E. 750.
Unrecorded Retention of Title Contract and Liens of Third
Parties. — Under this section an unrecorded contract retain-
ing title in the vendor of personal property until full pay-
ment of the purchase-money is not good as against "the
interests of third parties acting in good faith and without
notice, who may have acquired a transfer or lien binding
the same property." Bradley & Co. v. Cochran, 27 Ga.
App. 463, 108 S. E. 624.
§ 3320(1). Purchases .from distributees, etc. —
All innocent persons, firms or corporations acting
in good faith and without actual notice who pur-
chase for value, or obtain contractual liens, from
distributees, devisees, legatees, or heirs at law,
holding or apparently holding land or personal
property by will or inheritance from a deceased
person shall be protected in the purchase of said
property or in acquiring such a lien thereon as
against unrecorded liens or conveyances created
or executed by said deceased person upon or to
said property in like manner and to the same extent
as if the property had been purchased of or the
lien acquired from the deceased person. Acts
1912, pp. 143, 144.
§ 3321. (§ 2779.) General execution docket. —
The clerk of the superior court of each county
shall be required to keep a general execution
docket; and as against the interests of third par-
ties acting in good faith and without notice, who
may have acquired a transfer or lien binding the
defendant's propert}^ no money judgment ob-
tained within the county of the defendant's resi-
dence, in any court of this State, whether superior
court, ordinary's court, county court, city court, or
justice court, or United States court in this State,
municipal or other courts, shall have a lien upon
the property of the defendant from the rendition
thereof, unless the execution issuing thereon shall
be entered upon said docket within ten days from
the time the judgment is rendered. When the ex-
ecution shall be entered upon the docket after the
ten days, the lien shall date from such entry.
Acts 1889, p. 106; 1921, p. 115.
Cross References. — See 7 Cum. Dig. 806, 8 Enc. Dig. 24L
As to revival of dormant judgments, see § 5973. As tc
dormancy of judgments, see § 4355. As to judgments at
same term of equal date, see § 5944. As to judgments
against non-residents recorded on execution docket, see §
1325. As to how lien of judgment on transferred property,
discharged, see § 5950. As to duty of sheriff to keep exe-
cution docket, see § 4914, par. 4. As to how executions
;ssued, directed and levied, see § 6018.
Editor's Note. — The words "municipal courts or other
xmrts" following the phrase, "or United States Court in
[ 898 1
§ 3321
REGISTRATION OF TRANSFERS AND LIENS
§ 3321
this State" were contributed by Acts 1921, p. 115, the sec-
tion now being inclusive of money judgments obtained in
all courts.
Purpose of Section — Burden of Proof. — The purpose of this
section is to protect "third parties acting in good faith and
without notice," and one who claims the benefit of its pro-
visions must prove that he belongs to such protected class.
Eason v. Vandiver, 108 Ga. 109, 111, 33 S. E. 873; Ray v.
Atlanta Trust, etc., Co., 147 Ga. 265, 93 S. E. 418. See also,
Eason v. Vandiver, 108 Ga. 109, 33 S. E. 873.
The evident purpose of this section was to regulate the
priority of deeds, mortgages and other liens. Swift & Co.
v. Dowling, 151 Ga. 449, 107 S. E- 49.
Entry Not Required between Parties.— As between the
parties to a suit it is not necessary that an execution be
entered upon the general execution docket. Ray v. At-
lanta Trust, etc., Co., 147 Ga. 265, 93 S. E. 418.
The removal of a defendant from the county in which a
judgment was rendered against him will not render neces-
sary entering upon the general docket, under this section
of the county to which he removes, an execution issued
upon such judgment. Smith v. Howell, 101 Ga. 771, 27 S.
E. 31.
The entry of a judgment upon a justice's court docket
prior to the time when this section took effect was notice
to all persons dealing with the defendant of the existence
of such judgment, and this notice was sufficient to put a
purchaser from the defendant upon inquiry as to what dis-
position was made of such judgment, and, consequently,
upon notice of all facts to which such inquiry, properly
conducted, would lead. Dodd & Co. v. Glover, 102 Ga. 82,
29 S. E. 158.
Sufficiency of Docket — Execution Improperly Indexed. —
The book kept by the clerk as a general execution docket
was a substantial compliance with this section; and if in a
given instance an execution was improperly indexed, and
third persons were thereby misled to their injury, their
remedy, if any, would be against the clerk; but the fact
that the execution was so improperly entered would not
prevent the entry from operating as legal notice. Merrick
v. Taylor, 14 Ga. App. 81, 80 S. E- 343.
Entry on Docket Other than Where Judgment Obtained.
—See § .3322(1) and note thereto.
From What Time Lien of Judgments Date. — The lien or
judgments, to which this section applies, dates, as to bona
fide conveyances by the debtor to third persons, only from
the time the executions issuing thereon shall be entered upon
the general execution docket, unless such entry be made
within ten days after the judgments were rendered. Bailey
v. Bailey, 93 Ga. 768, 21 S. E. 77.
Entry of Distress Warrant for Rent. — This section does
not contemplate or require that a distress warrant for rent
shall be entered upon the general execution docket provided
for. Jones v. Howard, 96 Ga. 752, 22 S. E. 291.
Preventing Dormancy of Judgment. — This section does
not require that entries on an execution issued on a judg-
ment rendered in 1876 shall be entered on the general execu-
tion docket before they will have the effect of preventing
the judgment from becoming dormant. Dozier v. Mc-
Whorter, 113 Ga. 584, 39 S. E- 106.
Effect of Failure to Enter on Docket. — The failure of the
plaintiff in fi. fa. to have a judgment obtained entered upon
the general execution docket provided for by this section,
presents no reason for rejecting the fi. fa. when offered in
evidence upon the trial of a claim to property upon which
the fi. fa. had been levied. Rice v. Warren, 91 Ga. 759, 17
S. E. 1032.
Where a money judgment was rendered against a defend-
ant in the superior court of the county of her residence on
November 4, 1919, and on the next day thereafter a third
person, acting in good faith and without notice, purchased
from the defendant certain realty then owned by her and
situated in the county of her residence, took a conveyance
thereto, and went into possession of the same, and where
no execution was issued on the judgment and entered upon
the general execution docket of the county of the defend-
ant's residence until November 17, 1919, it was held, that
the lien of the judgment did not attach to the property; and
that where a levy of the execution on the date of its is-
suance and entry was made on the property, and a stat-
utory claim was filed thereto by such purchaser, the court
on the trial of the issue so made did not err in directing a
verdict finding the property not subject to the execution.
Swift & Co. v. Dowling, 151 Ga. 449, 107 S. E. 49.
When, there has been a failure to record a fi. fa. within
ten days from the rendition of the judgment upon which it
issued, as prescribed in this section, and thereafter the de-
fendant in fi. fa., before the registry of the execution, sells
land to an innocent purchaser for value who has no knowl-
edge or notice of the existence of the judgment, the title
to the land passes to such purchaser from the lien of the
judgment. This is true notwithstanding the purchaser
made no investigation or inquiry as to the existence ui
such a lien before paying for and receiving his deed to the
property. Harvey v. Sanders, 107 Ga. 740, 33 S. E. 713.
Where one obtains a judgment in the superior court and
fails to have execution issued and recorded in accordance
with the provisions of this section, the lien of the judgment
is lost as against property conveyed by the defendant in
judgment to a purchaser without notice, subsequently to
the expiration of the period provided for the entry of the
execution on the general execution docket and before the
entry of the execution thereon. State Bank v. Moore, 148
Ga. 198, 96 S. E. 225.
Same — Sureties Not Discharged. — Where an execution
issuing upon a judgment against the principal and several
sureties, rendered in the superior court, is not placed upon
the general execution docket in accordance with the provi-
sions of this section and several months after the rendition
of such judgment the execution is levied upon the property
of one of the sureties, the latter surety is not discharged
from liability because of the mere failure of the creditor to
have the execution so placed upon the execution docket,
thereby permitting to be lost the lien of the judgment on
the property of the principal and other sureties by reason
of their having disposed of their property subject to such
judgment, after its rendition, to purchasers acting in good
faith and without notice of such judgment. Williams v.
Kennedy, 134 Ga. 339, 67 S. E. 821.
Same — Constructive Notice of Judgment. — Inasmuch as
this section appointed a place, to-wit a general execution-
docket, whereon executions issued upon judgments must be
entered in order to affect purchasers from defendants
therein with notice of such judgments, the levy of an exe-
cution not duly entered on such docket, though followed by
a claim and thus giving rise to a pending case, did not
charge with constructive notice of the judgment one who,
before the registration of the execution upon the execution-
docket and without actual notice of the judgment, bought
in good faith from a previous vendee of the defendant in
execution. Moody v. Millen, 103 Ga. 452, 30 S. E. 258.
Absolute Deed Recorded before Execution of Judgment
Docketed. — Conveyance made by absolute deed, whether in-
tended to secure a debt or for full ownership, and whether
made before or after the judgment was rendered, are not
affected by the judgment if the deed was actually recorded
before the execution based on the judgment was entered on
the general execution docket, such entry having been de-
layed until after the ten days limit had expired. Bailey v.
Bailey, 93 Ga. 768, 21 S. E. 77.
Contest between Two Judgments. — The older of two judg-
ments against the same defendant has priority over the
younger, as to a fund arising from a sale of his property,
though the execution issued upon the younger may have
been duly entered upon the general execution docket, and
the execution issued upon the older has never been entered
upon that docket at all. Donovan v. Simmons, 96 Ga. 340,
22 S. E. 966; Griffith v. Posey, 98 Ga. 475, 25 S. E- 515.
Judgment Lien against Stockholder — Pledge of Stock. —
A lien of judgment against a stockholder is superior to a
subsequent lien of a pledgee of stock. Under this section,
this is true although the pledgee had no actual knowledge
of the prior judgment at the time of the pledgee. Fourth
Nat. Bank v. Swift & Co., 32 Ga. App. 589, 124 S. E. 181.
Sale of Crop under Execution Docketed before Mortgage
Given. — Where a growing crop was mortgaged to secure ad-
vances with which to make the same, and after its ma-
turity was sold under a common law execution against
the mortgagor, this execution was entitled to the proceeds
of the sale as against an execution issued upon a fore-
closure of the mortgage, it appearing that the common
law execution had been entered upon the general execution
docket before the mortgage was given, and the mortgagee
not being a person entitled to a statutory lien upon the
crop for such advances. Stewart v. Kramer, 99 Ga. 125,
24 S. E. 871.
Contest between Lien of Judgment and Bill of Sale to
Secure Debt. — The lien of a judgment duly recorded on the
general execution docket is, after the maturity of a grow-
ing crop of the defendant in fi. fa., superior to the title
thereto obtained through a bill of sale to secure a debt,
executed by the defendant in fi. fa. to a third person after
the judgment is recorded, but before the crop is mature.
Hixon v. Callaway, 2 Ga. App. 678, 58 S. E- 1120.
Extention of Time for Entry — Motion for New Trial. —
The fact that a motion for a new trial was filed by the de-
fendant in judgment after the period within which this
section requires the entry of the execution on the general
execution docket did not extend the time prescribed for
[ 899 ]
§ 3322
REGISTRATION OF TRANSFERS AND LIENS
§ 3328(1)
entry of the execution. State Bank v. Moore, 148 Ga. 198,
96 S. E. 225.
Same — Delay Applying for Execution in View of Four
Days Allowed for Appeal. — In view of this section the plain-
tiff in a county court judgment may properly delay ap-
plying for an execution with a view to having the same
entered on the execution docket until after the four days
allowed the defendant for entering an appeal have expired;
and inasmuch as the entering of the appeal during four
days prevents the issuance of the execution by the county
judge, fhe lien of the judgment appealed from, relatively to
one who purchased from the defendant pending the appeal,
is not affected by a failure on the part of the plaintiff to
have execution issued and entered within ten days from
the date of such judgment. Crosby v. King Hardware Co.,
109 Ga. 452, 34 S. E. 606.
Applied in Peagler v. Davis, 143 Ga. 11.
§ 3322. (§ 2780.) Judgments take effect against
property out of county, when. — As against
the interest of third parties acting in good faith and
without notice, who may have acquired a transfer
or lien binding the defendant's property, no money
judgment obtained in any court of this State, or
United States court in this State, outside of the
county of the defendant's residence, shall have a
lien upon the property of the defendant in any
other county than where obtained, unless the exe-
cution issuing thereon shall be entered upon the
general execution docket of the county of his res-
idence within thirty days from the time the judg-
ment is rendered. When the execution shall be
entered upon the docket after the thirty days, the
lien shall date from such entry. Acts 1889, p. 106.
See notes of Citizens Bank v. Jenkins, 156 Ga. 874, under
§ 3327 (1).
When Applicable. — -This section applies only when the
property of the defendant levied upon is in any county than
where the judgment was obtained. Reynolds Banking Co.
v. Peebles & Co., 142 Ga. 615, 616, 83 S. E. 229.
Applied in Brown v. Caylar, 144 Ga. 302, 87 S. E- 295.
§ 3322(1). Judgment as lien on land m another
county. — No money judgment obtained in any
court of this State, or United States Court, in this
State, shall create any lien on land, in any other
county than where obtained, as against the in-
terests of third parties acting in good faith and
without notice, who may have acquired a trans-
fer or lien binding defendant's property, unless at
the time of said transfer the execution was re-
corded on the 'general execution docket in the
county where such land is located. Acts 1914, p.
98.
Entry on Docket Other than Where Judgment Obtained.
— Under this section et seq., entry of an execution on the
general execution docket of a county in which land of the
defendant is located, other than the county in which the
judgment was obtained or the county in which the defend-
ant resided at the commencement of the suit, will convey
constructive notice of the judgment and cause the lien of
the judgment to affect the land as against a bona fide
purchaser for value, without actual knowledge of the judg-
ment, who acquires the land after the execution has been
entered on the docket. Relatively to land of the defendant
so located, it is not necessary, in order to bind the prop-
erty as against such purchaser, that the execution be en-
tered on the general execution docket of the county in
which the judgment was obtained or the county in
which the defendant resided. Citizens Bank v. Jenkins,
156 Ga. 874, 120 S. E. 607.
§ 3323. (§ 2781.) Not affect validity as be-
tween parties. — Nothing in this Chapter shall be
construed to affect the validity or force of any
deed, or mortgage, or judgment, or other lien of
any kind, as between the parties thereto.
Cross References. — As to lien between parties unaffected
by record of tax officers' bond, see § 1244. As to effect of
failure to record mortgages, see § 3260. As to record of
security deeds, see § 3307. As to conditional sales, see §
3318.
Recordation Unnecessary. — Under this section it is not es-
sential, in order to convey title to land to secure a debt as
between the maker and the grantee, that the deed should
be recorded. As between the maker of the security deed
and the grantee, the latter would get a good title. Cooper
v. Bacon, 143 Ga. 64, 84 S. E. 123.
Effect of Dormancy Act. — By reason of this section, the
act of 1885 as to dormancy of judgments was not affected
by the passage of §§ 3320 et seq. Columbus Fertilizer Co.
v. Hanks, 119 Ga. 950, 47 S. E. 222.
§ 3324. (§ 2782.) Clerk's fees. — For entering
such execution as aforesaid upon the general exe-
cution docket the clerk shall be entitled to a fee of
ten cents, to be taxed in the bill of costs, and also
a fee of ten cents for entering on the filing docket
each deed or mortgage or other lien.
As to salary of clerk and duty to pay over fees col-
lected to county or state, for all counties having 200,000
population or more, see. § 6017(5), counties having between
44,000 and 60,000 and from 70 000 to 150.000 population, see
§ 6017(12); counties of from 60,000 to 70,000 population, see
§ 6017(25).
§ 3325. (§ 2783.) Judgment against non-resi-
dents recorded on execution docket. — As against
the interests of third parties acting in good faith
and without notice, who may have acquired a
transfer or lien binding any real estate, situated
in this State, of a non-resident thereof, no money
judgment obtained in any court of this State,
whether superior court, ordinary's court, county
court, city court, or justice court, or United States
court in this State, against said non-resident, shall
have a lien upon real estate of said non-resident
from the rendition thereof, unless the execution is-
suing thereon shall be entered upon the .general
execution docket of the county in which such real
estate is situated, within ten days from the time
the judgment is rendered. When the execution
shall be entered upon the docket after the ten days,
the lien shall date from such entry. Acts 1890-1,
p. 207.
Cross References. — See § 3321, and notes thereto.
As to lien against defendant not resident of county, see
§ 5951. As to dignity of liens, see § 5946. As to revival of
dormant judgments, see § 5973. As to dormancy of judg-
ments, see § 4355.
Applicable Only to Real Estate. — Reynolds Banking Co. v.
Peebles & Co., 142 Ga. 615, 83 S. E. 229.
§ 3326. (§ 2784.) Not affect liens as between
parties. — Nothing in this Chapter shall be con-
strued to affect the validity or force of any judg-
ment, as between the parties thereto. Acts 1890-1,
p. 207.
See § 3323 and references there given.
§ 3327. (§ 2785.) Clerk's fees. — For entering
such execution, as aforesaid, upon the general exe-
cution docket, the clerk shall be entitled to a fee
of ten cents, to be taxed in the bill of costs.
As to salary of clerk and duty to pay over fees collected
to county or state, for all counties having 200,000 popula-.
tion or more see, § 6017(5) ; counties having between 44,-
000 and 60,000 and from 70.000 to 150,000 population see §
6017(12); counties of from 60,000 to 70,000 population, see
§ 6017(25).
§ 3328. (§ 2786.) When to go into effect. —
This Chapter shall not apply to judgments ob-
tained before January 1st, 1890.
§ 3328(1). Notices of federal tax liens, where
filed. — Notices of liens for internal revenue taxes
payable to the United States of America, and cer-
[900]
§ 3328(2)
LIENS OTHER THAN MORTGAGES
§ 3330
tificates discharging such liens, may be filed in
the office of the Clerk of the Superior Court of the
county within which the property subject to such
lien is situated. Acts 1924, p. 124.
§ 3328(2). Index of federal tax liens. — When
a notice of such tax lien is filed the Clerk of the
Superior Court shall forthwith enter the same in
an alphabetical Federal Tax Lien Index, to be
provided by the county board, showing on one
line the name and residence of the tax-payer
named in such notice, the collector's serial num-
ber of such notice, the date and hour of filing, and
the amount of tax and penalty assessed. He shall
file and keep all original notices so filed in numer-
ical order in a file or files to be provided by the
county board and designated Federal Tax Lien
notices. Acts 1924, p. 124.
§ 3328(3). Certificate of discharge. — When a
certificate of discharge of any tax lien, issued by
the collector of internal revenue or other proper
officer, is filed in the office of the Clerk of the
^Superior Court, where the original notice of such
lien is filed, said Clerk of the Superior Court shall
enter the same with date of filing in said Federal
Tax Lien Index on the line where the notice of
the lien so discharged is entered, and permanently
attach the original certificate of discharge to the
original notice of lien. Acts 1924, p. 124.
§ 3328(4). Fee of clerk. — Said clerks shall re-
ceive fifty cents for filing and indexing each no-
tice of lien and certificate of discharge. Acts 1924,
p. 124.
§ 3328(5). Purpose of Act. — It is the purpose
of this Act to conform with the provisions of Sec-
tion 3186 of the Revised Statutes of the United
States, as amended by the Act of March 4, 1913,
37 Statutes at Large, page 1016, authorizing the
notices of the filing of liens. Acts 1924, p. 124.
CHAPTER 10.
Liens Other Than Mortgages.
ARTICLE l.
To Whom Granted, Rank and Priority.
§ 3329. (§ 2787.) Liens established. — The
following liens are established in this State:
1. Liens in favor of the State, counties, and
municipal corporations for taxes.
See § 3333.
As to enforcement, see §§ 1140 et seq.
2. Liens in favor of creditors by judgment and
decree.
See succeeding section.
As to registration, see §§ 3321 et seq.
3. Liens in favor of laborers.
See §§ 3334, 3335, 3339.
4. Liens in favor of landlords.
See §§ 3340-3348, 3701, 3702.
5. Liens in favor of mortgagees.
As to mortgages on crops, see §§ 3349-3351.
6. Liens in favor of landlords furnishing neces-
saries.
See §§ 3348, 3702.
7. Liens in favor of mechanics on real and per-
sonal property.
See §§ 3352-3354.
8. Liens in favor of contractors, materialmen,
machinists, and manufacturers of machinery.
See § 3352.
9. Liens in favor of certain creditors against
steamboats and other water-craft.
See § 3355.
10. Liens in favor of the proprietors of sawmills
and the products of sawmills, and of proprietors
of planing-mills, and other similar establishments.
See § 3356.
11. Liens in favor of innkeepers, boarding-house
keepers, carriers, livery-stable keepers, pawnees,
depositaries, bailees, factors, acceptors, and at-
torneys at law.
As to carriers, see §§ 2741, 2743. As to boarding-house
keepers and innkeepers, see § 3360. As to livery stable
keepers, see §§ 3360, 3370. As to depositaries, see § 3363.
As to attorneys, see § 3364. As to bailees, pawnees, ac-
ceptors, and factors, see § 3363.
12. Liens in favor of the owners of stallions,
jacks, bulls, and boars.
See § 3361.
13. Liens in favor of railroad employees, owners
of stock killed, and persons furnishing supplies to
railroads. Acts 1873, p. 42.
See §§ 2793, 2795.
As to enforcement, see §§ 1140 et seq.
Editor's Note. — This section is little more than an enum-
eration. Cases involving the priorities enforcement, etc.,
will be found under the specific sections referring to the
particular liens, cross references to which are given. The
enumeration is by no means exhaustive. See, for example,
§§ 3336, 2034, 2333, 3076.
Assignment of Liens. — The liens mentioned in this section
are within section 3372, requiring assignments to be in
writing. Planters' Bank v. Prater, 64 Ga. 609.
§ 3330. (§ 2788.) Certain liens confirmed. —
Liens in favor of creditors by judgment, decree,
and mortgage, and the lien for costs due the State
in criminal cases, shall remain as under existing
laws, except when altered by the provisions of this
Article, and the lien of vendors shall remain as
now regulated by law; the priority of liens given
to judgments for the purchase-money, over all
other liens, being confirmed. The judgment up-
on any evidence of debt given for the purchase-
money of land, where titles have not been made
but bond for titles given, shall be a lien upon the
land and the proceeds of the sale thereof, prior to
all other judgments, claims, liens, and incum-
brances, until the judgment shall be fully paid and
satisfied. Acts 1868, p. 16.
Cross References. — As to judgment liens, see 8 Enc. Dig.
236, 7 Cum. Dig. 805. As to vendor's lien, see 12 Enc. Dig.
636, 11 Cum. Dig. 340. As to enforcement of the vendor's
lien on judgment for purchase money, see § 6037. As to at-
tachment for purchase price, see § 5083. As to lien of
judgment, see § 5946.
Editor's Note. — It is to be noted that the vendor's equita-
ble lien is abolished by § 3373. It is difficult to see the ef-
fect of the first two sentences of this section. What is the
necessity of declaring that the law is not changed?
Vendor's Lien — Secret Equity Subordinate. — Under this
section a lien for purchase money is prior to a secret equity
of vendee's wife. Connally v. Cruger, 40 Ga. 259.
Same — Judgment on One of Several Notes. — Where judg-
ment has been obtained on one of several purchase money
notes, the others being not yet mature, the land may be
sold, under this section, and the vendor will have a right
to the proceeds, to the extent of the entire price, prior to
the rights of other creditors. He will not, however be al-
[ 901
§ 3331
LIENS OTHER THAN MORTGAGES
§ 3335
lowed payment until the money is due. Brown v. Farmer,
94 Ga. 178, 21 S. E. 292.
Same — Executors of a deceased partner, who have title
to renewals of purchase money notes, may proceed under
this section, without any conveyance by the surviving
members of the firm or the liens of the deceased. Blalock
v. Jackson, 94 Ga. 469, 20 S. E. 346.
Same — Necessity for Conveyance. — An execution cannot,
under the last sentence of this section be lawfully levied
upon the land until the plaintiff has executed and had re-
corded a deed conveying the land to the defendant.
Rogers v. Smith, 98 Ga. 788, 25 S. E. 753.
Same — Lien Need Not Be Alleged in Suit to Obtain Judg-
ment.— It is not necessary in suits upon notes given for
land and judgments thereon, to specify or declare a lien
thereon on the face of the declaration and judgment, in or-
der to sell the same under execution by filing a deed for
the land with the clerk under this section. Coleman v.
Slade, 75 Ga. 61, 70.
Same — Prior Incumbrance. — Where the land is sold sub-
ject to a prior security title, the vendor may claim a lien
on surplus of proceeds of sale at the instance of the holder
of such title. Hinton v. Burns, 20 Ga. App. 467, 93 S. E.
120.
§ 3331. (§ 2789.) Liens under charters. — All
liens created under the charters of incorporated
companies are continued under this Code.
As to enforcement of liens in favor of incorporated com-
panies, see § 3369. As to liens created by by-laws, see §
3375.
§ 3332. (§ 2790.) Liens against deceased trus-
tees. — Liens against trustees, dying chargeable
with trust funds, take priority over all other liens
and claims except funeral expenses.
For a section having a practically identical effect see §
3773.
§ 3333. (§ 2791.) Rank of liens for taxes. —
Liens for taxes due the State or any county there-
of, or municipal corporation therein, shall cover
the property of taxpayers liable to tax, from the
time fixed by law for valuation of the same in
each year until such taxes are paid, and the prop-
erty of tax-collectors and their sureties from the
time of giving bond until all the taxes for which
they are responsible shall be paid. Such liens for
taxes are hereby declared superior to all other
liens, and shall rank between themselves as
follows: First in rank, taxes due the State; second
in rank, taxes due the counties of the State; third
in rank, taxes due to municipal corporations of
the State. Acts 1873, p. 42.
For full treatment, see 10 Cum. Dig. 806, 12 Enc. Dig. 1C9.
As to enforcement, see § 1140 et seq.
Rights of Bona Fide Purchaser. — The lien for taxes fol-
lows the property into the hands of bona fide purchasers.
Freeman v. Atlanta, 66 Ga. 617.
Rights of Prior Mortgagee. — The lien may be enforced
even as against a mortgage holder whose mortgage is
prior to the assessment. Verdery v. Dotterer, 69 Ga. 194.
No Right to Have Lien Prorated. — Where different par-
ties hold mortgages on different pieces of a debtor's prop-
erty, neither can claim a right to have a tax execution
prorated between the tracts. The lien covers both but may
be enforced against either. Patton v. Camp, 120 Ga. 936,
48 S. E. 361.
Sale of Land — When Lien Not Divested. — A sale of land
by the sheriff in November under a general fi. fa. does not
divest the lien of the State and county for the year's taxes
of the defendant in fi. fa. Wilson v. Boyd, 84 Ga. 34, 10
S. E. 499.
Sale under a common-law execution does not divest the
lien of a municipality for its due and unpaid taxes. La-
Grange Grocery Co. v. LaGrange, 31 Ga. App. 97, 119 S.
E. 536.
Same — When Lien Divested. — Where under order of court
an administrator sells lands subject to tax liens the lien is
thereby divested and transferred to the proceeds of the
sale. Herrington v. Tolbert, 110 Ga. 528, 35 S. E. 687.
"The rule that the sale of property under a mortgage fi.
fa. does not divest the lien for taxes is not applicable where
the tax fi. fas. are placed in the hands of the levying offi-
cer for the purpose of claiming the proceeds of such sale."
Patton v. Camp, 120 Ga. 936, 940, 48 S. E- 361.
§ 3334. (§ 2792.) Lien of laborers, general. —
Laborers shall have a general lien upon the prop-
erty of their employers, liable to levy and sale, for
their labor, which is hereby declared to be supe-
rior to all other liens, except liens for taxes, the
special liens of landlords on yearly crops, and
such other liens as are declared by law to be supe-
rior to them. Acts 1873, p. 42.
Cress References. — For full treatment, see 8 Cum. Dig.
230, 8 Enc Dig. 785. As to laborers about steam mills, etc.,
see § 3357; as to enforcement see §§ 3365, 3366.
Section Strictly Construed. — Where parties resort to
summary remedies to recover their demands, they must
follow the very letter of the statute. Mabry v. Judkins,
66 Ga. 732. See also, Ricks v. Redwine, 73 Ga. 273.
Remedy Cumulative. — The remedy given by this section
and §§ 3365, and 3366 is not exclusive, and does not deprive
a laborer of his common-law right to sue upon a contract,
but is merely cumulative of that right. Jennings v. Lan-
ham, 19 Ga. App. 79, 90 S. E- 1038.
Who Is a Laborer — In General. — A laborer under this sec
tion, is one who performs manual labor. If an employee is
paid to perform "headwork rather than handwork," he is
not a laborer within this section. Cole v. McNeile, 99 Ga.
250, 25 S. E. 402.
Same — Clerk. — Clerks, or persons doing general service,
are not laborers within this section. Richardson v. Lang-
ston, 68 Ga. 658, 659. See also Pruitt v. Pace, 10 Ga. App.
201, 72 S. E. 1098; Oliver v. Macon Hdw. Co., 98 Ga. 249, 25
S. E. 403; Ricks v. Redwine, 73 Ga. 273; Hinton v. Goode,
73 Ga. 233.
But when the employee's regular duties include actual
manual labor, he may have a lien under this section even
though he is a clerk as well as a laborer. Rountree v.
Brown, 22 Ga. App. 79, 95 S. E- 375; Oliver v. Boehm, 63 Ga.
172.
Same — Mechanic. — A mechanic who himself actually per-
forms manual labor upon property of his employer is .not
limited to a mechanic's lien under § 3354 of the Civil Code
(1910), but may at his option assert a laborer's lien under
§ 3334 or 3335. Adams v. Goodrich, 55 Ga. 234; Hilley v.
Lunsford, 29 Ga. App. 398, 115 S. E. 667.
Same — Cropper. — A cropper is a laborer, and, as such,
may maintain a laborer's lien upon the crop as the prop-
erty of his employer. Howard v. Franklin, 32 Ga. App.
737, 124 S. E. 554. See also, Jannings v. Lanham, 19 Ga.
App. 79, 90 S. E. 1038.
By Whom Labor Performed. — "A laborer only has a lien
for work which he has done himself, and not by other per-
sons hired by him to do the work." Mabry v. Judkins. 66
Ga. ' 732, 733.
But a laborer who is entitled to the earnings of his wife
and minor child may assert a lien in his own name and for
his own use for labor contracted for and performed by
them. Howard v. Franklin, 32 Ga. App. 737, 124 S. E. 554.
A trust estate is subject to a lien under this section.
Ricks v. Redwine, 73 Ga. 273.
Does Not Secure Hire for Property Used. — The lien given
to laborers under this section arises only for the amount
due for the work done, and does not include hire for use
of laborer's propertv. Cox v. Cagle & Sons, 112 Ga. 157,
37 S. E. 176. \
Priority — Mortgages. — The general laborer's lien on per- I
sonalty takes precedence over ordinary mortgages, even I
those created prior to the contract for labor. Mathews v.
Fields, 12 Ga. 225, 77 S. E- 11; Georgia Loan, etc., Co. v.
Dunlop, 108 Ga. 218, 33 S. E- 882; Allred v. Haile, 84 Ga.
570, 10 S. E. 1095; Langston v. Anderson, 69 Ga. 65.
Liens of laborers have priority of mortgages given to
secure the payment of purchase-money, and all other liens
except those specially provided for and expressly declared
by law to be superior. Bradley v. Cassels, 117 Ga. 517, 43
S. E. 857.
Burden of Proof. — The rule that the burden of proving
that one is a laborer lies upon the one asserting a laborer's
lien does not apply where a judgment foreclosing a laborer's
lien is collaterally attacked by a stranger. Sutton v. Bank,
33 Ga. App. 416, 126 S. E. 556.
§ 3335, (§ 2793.) Special lien of laborers. —
Laborers shall also have a special lien on the prod-
ucts of "their labor, superior to all other liens,
except liens for taxes, and special liens of land-
[902 ]
§ 3336
LIENS OTHER THAN MORTGAGES
§ 3340
lords on yearly crops, to which they shall be in-
ferior. Acts 1873, p. 42.
For full treatment, see 8 Enc. Dig. 785, 8 Cum. Dig. 230.
Editor's Note. — Many of the cases arising under the pre-
ceding section will be found to be equally applicable to this
section.
Strict Construction. — This section is strictly construed.
Richardson v. Langston, 68 Ga. 658.
To What Property Applicable. — The special lien of a la-
borer applies only to the products of his labor, and the
foreclosure of such lien will not entitle him to participate
in the proceeds of other personal property before the court
for distribution. Boyce v. Poore, 84 Ga. 574, 10 S. E. 1094.
This section does not apply to goods repaired. Earner
v. Bailey, 120 Ga. 878, 48 S. E. 324.
A trust estate is subject to a lien under this section.
Ricks v. Redwine, 73 Ga. 273.
May Be Asserted by Mechanic. — A mechanic who him-
self actually performs manual labor upon property of his
employer is not limited to a mechanic's lien under § 3354
but may at his option assert a laborer's lien under § 3334
or 3335. Adams v. Goodrich, 55 Ga. 233; Hilley v. Euns-
ford, 29 Ga. App. 398, 115 S. E. 667.
No Lien for Hire of Laborer's Property. — The lien given
to laborers under this section arises only for the amount
due for the work done, and does not include hire for use of
laborer's property. Cox v. Cagle, 112 Ga. 157, 37 S. E. 176.
§ 3336. Laundrymen, liens in favor of. — All
persons, firms, or corporations engaged in the
business of laundering, cleaning, or dyeing any
clothing, goods, wearing apparel, carpets, rugs, or
other such articles shall, for the agreed price or
the reasonable value of their services in launder-
ing, cleaning, or dyeing any goods, clothing, wear-
ing apparel, carpets, rugs, or other similar
articles, have a lien upon the articles laundered,
cleaned, or dyed, whether the work of laundering,
cleaning, or dyeing such articles is performed by
themselves or their employees. Acts 1909, p. 151.
Cited in Cox v. Seely, 20 Ga. App. 629, 93 S. E. 421.
§ 3337. How enforced. — Any such persons,
firms, or corporations shall have the right to re-
tain possession of the articles laundered, cleaned,
or dyed by them until their charges shall have
been paid; but if any such articles shall be de-
livered to the person for whom such service was
performed, without collecting the agreed price or
reasonable value of laundering or dyeing such
articles, the said lien shall be lost, upon the articles
so delivered, but shall attach to any other goods,
clothing, or wearing apparel, or other articles be-
longing to the person for whom such work was
done, which may come afterwards into the posses-
sion of such person, firm, or corporation for the
purpose of being laundered, cleaned, or dyed.
Cited in Cox v. Seely, 20 Ga. App. 629, 93 S. E. 421.
§ 3338. Rank of lien. — Said lien shall have the
same rank as the special lien of laborers on the
products of their labor, and may be foreclosed in
the same manner.
As to rank, see § 3335.
§ 3338(1). Sale of goods to enforce lien. —
Whenever any clothing, goods, wearing apparel,
carpets, rugs, or other such articles shall remain
in the possession of any person, firm or corpora-
tion in this state engaged in the business of
laundering, cleaning or dyeing such articles, for a
period of ninety days after such person, firm or
corporation has performed any services thereon
in laundering, cleaning or dyeing the same, with-
out the agreed price, or the reasonable value of
such service being paid, such goods or articles
may be sold by the person, firm or corporation
having performed such service for the satisfaction
of the lien of such person, firm or corporation
performing such service. Acts 1925, p. 217.
§ 3338(2). Notice. — Before any sale shall be
made as provided in § 3338(1), the person, firm or
corporation making such sale shall give ten days
notice thereof by posting a notice of such sale be-
fore the Court House door of the County in which
such services were performed, giving the name of
the owner of such goods, if known, and if not
known, the name of the person from whom such
goods were received, a description of the goods to
be sold, the time and place of sale and the amount
of the charges for which such goods or articles
will be sold and the name of the person, firm or
corporation having possession of such goods or
articles and proposing to make such sale. Acts
1925, p. 217.
§ 3338(3). Sales. — All sales made under the
provisions of this Act shall be made at public out-
cry, before the Court House door of the county
where the person, firm or corporation making
such sale had his place of business at the time of
receiving the goods sold, and during the hours
provided by law for holding Sheriff's sales. Acts
1925, p. 217.
§ 3338(4). Proceeds. — The proceeds of any
sale made under the provisions of this Act shall
be applied first to the payment of the lien for serv-
ices rendered by the person, firm or corporation
making such sale for its services in laundering,
cleaning or dyeing the articles sold, and the resi-
due, if any shall be paid to the owner of the goods
sold on demand. Acts 1925, p. 217.
§ 3338(5). Other remedies cumulated. — The
method of satisfaction of the lien referred to in
this Act shall be cumulative of any other remedies
provided by law for the foreclosure or satisfaction
of such liens. Acts 1925, p. 217.
§ 3339. (§ 2794.) Rank of laborers' liens, and
how they arise. — Liens of laborers shall arise up-
on the completion of their contract of labor, but
shall not exist against bona fide purchasers with-
out notice, until the same are reduced to execution
and levied by an officer, and such liens in conflict
with each other shall rank according to date, dat-
ing each from the completion of the contract of
labor. Acts 1873, p. 42.
Lien Arises When. — Eiens of laborers, by the express
terms of this section, "arise upon the completion of their
contract of labor." Oglethorpe Savings, etc., Co. v. Mor-
gan, 149 Ga. 787, 795, 102 S. E. 528.
Comp'etion Must Be Alleged. — "An affidavit to foreclose
a laborer's lien must show affirmatively that the contract
of labor has been completed." McDonald v. Night, 63 Ga.
161; Brantley v. Raybon, 61 Ga. 211. See also, Harvey v.
Lewis, 19 Ga. App. 655. 91 S. E- 1052.
Burden of Proof of Completion. — The burden is upon the
laborer to show that the contract of labor has been com-
pleted. Houser v. Cooper, 102 Ga. 823, 824, 30 S. E. 539.
Purchaser in Payment of Debt Protected. — A bona fide
purchase of personalty in payment of an antecedent debt,
before the property was seized under the levy of a laborer's
general lien, will prevail over such lien. Farmers, etc.,
Bank v. Redden, 17 Ga. App. 473, 87 S. E. 701.
Applied. Malsby & Co. v. Widincamp, 32 Ga. ApP;716,
124 S. E. 730. Where cropper abandoned cultivation. "Payne
v. Trammell, 29 Ga. App. 475, 115 S. E. 92*.
§ 3340. (§ 2795.) Landlord's lien. — Landlords
shall have a special lien .for rent on crops made on
land rented from them, superior to all other liens
[ 903 ]
§ 3341
LIENS OTHER THAN MORTGAGES
§ 3344
except Hens for taxes, to which they shall be in-
ferior, and shall also have a general lien "on the
property of the debtor, liable to levy and sale, and
such general lien shall date from the time of the
levy of a distress warrant to enforce the same.
Acts 1873, p. 43; 1887, p. 34; 1889, p. 71.
See generally, 1 Enc. Dig. 299, 1 Cum. Dig. 344. For
similar provisions, see § 3701.
Editor's Note.— By Acts 1922, p. 114, § 3651(1) of this code,
crops are declared to be personalty, and "mortgages or other
liens" or "conveyances" thereof are to be attested and re-
corded as chattel mortgages. Strictly construed the act
would apply to the landlord's special lien on crops, but it
seems doubtful that this was the intent of the legislature.
The act seems to be intended to apply to liens, etc., ex-
pressly created.
This section does not vest title, but only a lien, special
for the rent of the land that made the crop, good from its
maturity, but general in respect to other rent, and good
only from levy. Worrill v. Barnes, 57 Ga. 404, 406.
Landlord May Elect Remedy. — The landlord may elect
to enforce either lien or even both in one distress war-
rant. McDougal v. Sanders, 75 Ga. 140.
Statute of Limitations. — The limitation of one year in
subsection 2 of § 3366 does not apply to the prosecution and
enforcement by distress warrant of a special or general
claim or demand by a landlord for rent. Only the general
statutes of limitation apply as to the enforcement of such
demands. Jones v. Blackwelder, 16 Ga. App. 345, 85 S. E.
356.
Rights of Purchaser Without Notice. — "A bona fide pur-
chaser, without notice, of a crop grown on rented premises
will be protected against the lien, general or special, of the
landlord for rent." McCommons-Thompson-Boswell Co. v.
White, 33 Ga. App. 20, 125 S. E. 76; Collins v. Harrison,
24 Ga. App. 404, 100 S. E. 794; Chason v. O'Neal, 158 Ga.
725, 124 S. E. 519; Thornton v. .Carver, 80 Ga. 397, 6 S. E-
915.
General Lien — Date. — The general lien given by this sec-
tion "dates from the levy of the distress warrant to en-
force the same." Prior to levy it covers no specific prop-
erty, and attaches only to what is seized under the dis-
tress warrant issued to enforce the lien given by statute.
But in this respect it is the full equivalent of a common-
law distress. Henderson v. Mayer, 225 U. S. 631, 32 S. Ct.
699. See also, Oglethorpe, etc., Co. v. Morgan, 149 Ga.
787, 795, 102 S. E. 528.
Same — Bankruptcy of Tenant. — The general lien of a land-
lord for rent, given by this section, is not created by judg-
ment, nor obtained through legal proceedings, within the
meaning of the bankrupt act of July 1, 1898 (30 Stat, at L.
565, chap. 541, U. C. Comp. Stat. 1901, p. 3450), § 67f, and
is therefore not defeated by the provisions of that section,
although the levy was made within four months of the filing
of the petition in bankruptcy against the tenant. Hender-
son v. Mayer, 225 U. S. 631, 32 S. Ct. 699.
Special Lien — No Levy Necessary. — A levy is not neces-
sary in order to fix a landlord's special lien upon a crop
for rent. Lathem & Sons v. Stringer, 17 Ga. App. 585, 587, 87
S. E. 840; Cochran v. Waits, etc., Co., 127 Ga. 93, 56 S. E.
241. See also, Scott & Co. v. Ward, 21 Ga. App. 535, 94
S. E- 863.
Same — Necessity for Demand. — In order to enforce the
special lien of a landlord, the rent must be due, but a de-
mand for the payment thereof is not required. Coklough
& Co. v. Mathis, 79 Ga. 394, 4 S. E. 762.
Same — Attaches to Whole Crops. — The landlord's special
lien attaches to the whole crop. Daniel v. Harris, 84 Ga.
479, 10 S. E. 1013. See also, Manley v. Underwood, 27 Ga.
App. 822, 110 S. E. 49. '
Same — Attaches to Crop of Sub-Tenant. — Under this pro-
vision the crops raised on rented land by a sub-tenant, can
be lawfully subjected to the payment of the rent con-
tracted for by the original tenant. Alston v. Wilson, 64
Ga. 482; Hudson v. Stewart, 110 Ga. 37, 41, 35 S. E. 178.
Effect of Assignment Where Consideration Fails. — An as-
signment before maturity of a written contract for rent
does not operate to raise in favor of the assignee the gen-
eral lien given to landlords, when it appears that before the
levy of a distress warrant in favor of the transferee the
consideration of such contract had entirely failed. Garner
v. Douglasville Banking Co., 136 Ga. 310, 71 S. E. 478.
§ 3341. (§ 2796.) Rank of such lien. — Such
general lien of landlords shall be inferior to liens
for taxes and the general and special lien of
laborers, but shall rank with other liens, and with
each other according to date, the date being from
the time of levying a distress warrant. The
special liens of landlords for rent shall date from
the maturity of the crops on the lands rented, un-
less otherwise agreed on, but shall not be en-
forced by distress warrant until said rent is due,
unless the tenant is removing his property, or
when other legal process is being enforced against
said crops, when the landlord may, as provided
elsewhere in this Code, enforce said liens, both
general and special.
See generally, 1 Enc. Dig. 306, 1 Cum. Dig. 350.
Date of Lien. — Special liens of landlords date "from the
maturity of the crops on the lands rented," unless other-
wise agreed upon. Oglethorpe Savings, etc., Co. v. Morgan,
149 Ga. 787, 795, 102 S. E. 528.
Same — Mortgages. — The landlord's lien is superior to the
lien of a mortgage. Manley v. Underwood, 27 Ga. App.
822, 834, 110 S. E. 49.
Priorities — Judgment Lien. — The special lien for rent is
superior to older common law judgments. If after fore-
closure proceedings the crops are sold under common law
executions, the proceeds are subject to the special lien, in
preference to the judgment creditors. Cochran v. Waits,
etc., Co., 127 Ga. 93, 56 S. E. 241.
Same — Mortgage. — A landlord's general lien for rent un-
der this section is inferior to the lien of mortgagee exe-
cuted before the levying of the distress warrant. Preetorius
v. Anderson, 236 Fed. 723.
Same — Conditional Bill of Sale. — A landlord's general lien
for rent, arising upon the issuance and levy of a distress
warrant, is superior to a tenant's unrecorded bill of sale of
personalty to secure a debt, though the latter was exe-
cuted and delivered prior to the date of the levy of the
distress warrant upon the property covered by the bill of
sale. Butler v. LaGrange Grocery Co., 29 Ga. App. 612,
116 S. E. 213.
Bankruptcy — General Lien. — The general lien of the land-
lord for rent prior to distress is inchoate, and covers no
specific property, and gives no priority over the lien given
to the trustee in bankruptcy. Southern R. Co. v. Wilder,
231 Fed. 933. See also Watkins v. Alexander, 283 Fed. 968,
In re Grovenstein Bishop Co., 223 Fed. 878. Contra, over-
ruled. In re City Drug Store, 224 Fed. 132.
Same — Special Lien. — But the special lien on crops at-
taches without levy, and is not affected by bankruptcy of
the tenant before distress. In re Harper, 294 Fed. 899.
§ 3342. (§ 2797.) Foreclosed by distress war-
rant. — Landlord's special liens for rent shall be
enforced by distress warrant in the same manner
as the general liens for rent are enforced, and no
further allegations in the affidavit to procure a
distress warrant to enforce a special lien for rent
shall be necessary than is necessary to enforce the
landlord's general lien for rent.
As to procedure see § 5390.
§ 3343. (§ 2798.) Transferees of liens.— When-
ever any contract for rent is evidenced by writing
and is transferred by written assignment before
the maturity of the crops on the lands rented, the
special lien in favor of landlords shall, on the
maturity of the crops, arise in favor of the trans-
feree of such rent contract in the same manner as
it would have done in favor of the landlord had no
transfer been made. Acts 1882-3, p. 109.
See 1 Enc. Dig. 303, 1 Cum. Dig. 349.
Effect of Assignment on Set-Off. — A plea of set-off
against the original landlord is not available as against
a bona fide assignee claiming a lien under this section.
Mosley v. Bank, 143 Ga. 181, 84 S. E. 438.
Failure of Consideration of Rent Contract. — If the con-
sideration for the rent contract has failed before assign-
ment, no lien arises in favor of the assignee under this sec-
tion. Garner v. Douglasville Banking Co., 136 Ga. 310, 71
S. E. 478; Camp v. West & Co., 113 Ga. 304, 38 S. E. 822.
§ 3344. (§ 2799.) Foreclosure. — The special
lien provided for in the foregoing section may be
foreclosed by the transferee in his own name. The
[904]
§ 3345
LIENS OTHER THAN MORTGAGES
§ 3348
affidavit of foreclosure shall contain a recital of
the fact of transfer and such other allegations as
are necessary in the foreclosure of special liens by
landlords.
§ 3345. Liens, how transferred. — All trans-
fers and assignments of rent notes, mortgage
notes, and other such evidences of indebtedness,
secured either by contract lien or out of which a
lien springs by operation of law, shall be suffi-
ciently technical and valid where such transfer or
assignment plainly seeks to pass the title to any
of such papers in writing from one person to an-
other. Acts 1899, p. 90.
As to assignments of choses in action, in general, see §
3653. As to transfers of judgments and decrees, see §§
5432, 5969.
Policy of this Section.— The act of 1899 (Acts 1899, p. 90),
embodied in the Civil Code §§ 3345-3347, was remedial in its
nature. The purpose of this act was, not to lessen the
power of assignment, but to broaden it, so as to do away
with, as much as possible, the formality of transfers of lien
notes. Setze v. First Nat. Bank, 140 Ga. 603, 605, 79 S. E.
540.
Sufficiency of Indorsement. — The simple indorsement of a
mortgage note, payable to order, is sufficient under this
section. Setz v. First Nat. Bank, 140 Ga. 603, 79 S. F. 540.
See also, Patillo v. Hallett, etc., Co., 26 Ga. App. 327,
106 S. E. 206; Beall v. Patterson, 146 Ga. 233, 91 S. E. 71.
Same — Must Be in Writing. — See Gamble v. Shingler, 22
Ga. App. 608, 96 S. F. 705.
Purchase-Money Notes Reserving Title. — It has been said
that this section does not contemplate purchase-money
notes in connection with which there is a contract reserving
title, or a bond to 'convey title on payment of the purchase-
money. Berry v. Van Hise, 148 Ga. 27, 95 S. F. 690. But
see West Yellow Pine Co. v. Kendrick, 9 Ga. App. 350, 71
S. F- 504, citing conflicting cases on this point but not de-
ciding it.
However, where one sells personal property, taking a
purchase-money note in which title to the property is re-
served until the note is paid, the transfer or assignment
of the note transfers or assigns the right to recover the
property in an action of trover upon failure of the maker
of the note to pay the same; and this is true whether the
transfer makes reference to the property to which title is
reserved or not, and or whether some or all of the transfers
are made "without recourse" on the transferrer. See Jordan
Mercantile Co. v. Brooks, 149 Ga. 157, 99 S. F. 289; S. C,
24 Ga. App. 3, 99 S. F. 475. It will be noticed that in this
case title to personal property sold was retained in and by
the purchase-money note itself, whereas the holding in
Berry v. Van Hise in the paragraph next preceding is
limited to instances where there is a contract reserving
title, or a bond to convey title, separate from the note.
Fd. Note.
Indorsement "Without Recourse.'! — This section applies
where the transfer is by indorsement of the note "without
recourse." Berry v. Van Hise, 148 Ga. 27, 95 S. E. 690;
Jordan Mercantile Co. v. Brooks, 149 Ga. 157, 99 S. E. 289;
S. C, 24 Ga. App. 3, 99 S. E. 475. But see West Yellow
Pine Co. v. Kendrich, 9 Ga. App. 350, 71 S. E. 504.
Applied to landlord's lien and rent note. Scott & Co. v.
Ward, 23 Ga. App. 416, 98 S. E- 412; International Agr.
Corp. v. Powell, 31 Ga. App. 348, 120 S. E. 668. To bill of
sale used as security. Dawson v. English, 8 Ga. App. 585,
69 S. E. 1123.
§ 3346. Transfer carries the lien. — Upon all
such transfers or assignments of any such rent
note, mortgage note, or other such evidence of in-
debtedness as mentioned in the preceding section,
such transfer or assignment shall carry together
with the title thereof to such transferee or as-
signee also the lien connected with the same with-
out naming or specifically transferring the lien, so
that the effect of such transfer or assignment will
be to completely and fully carry the lien as a
necessary incident thereof.
See note to preceding section. As to transfer of se-
cured notes, see § 4276.
This section applies to remote as well as immediate in-
dorsees. Berry v. Van Hise, 148 Ga. 27, 95 S. E. 690;
Jordan Mercantile Co. v. Brooks, 149 Ga. 157, 99 S. E. 289;
S. C, 24 Ga. App. 3, 99 S. E- 475.
Applied in Beall v. Patterson, 146 Ga. 233, 91 S. E- 71.
§ 3347. Power to foreclose. — Upon the trans-
fer or assignment of any such rent note, mortgage
note, or other such evidence of debt as mentioned
in the two preceding sections, the person to whom
the same may be transferred or assigned may,
without more, have full power and authority to
foreclose or enforce the same in his own name.
See note to § 3345.
As to transferee of mortgage, see § 3278.
Editor's Note.— The wording of § 3 of the Act of 1899,
from which this section was codified, was "upon the simple
transfer," etc. The word simple was omitted when the
section was incorporated in the Code of 1910, by a palpable
clerical error. See Setze v. First Nat. Bank, 140 Ga. 603,
79 S. E. 540.
Transferee of Note. — Under this section a transferee of a
rent note may foreclose the landlord's lien by distress. In-
ternational Agri. Corp. v. Powell, 31 Ga. App. 348, 120 S.
E. 668; Beall v. Patterson, 146 Ga. 233, 91 S. E. 71.
Simple Transfer.— Construing this section with § 4276, the
simple endorsement of the name of the payee in a mortgage
note payable to order, on the back thereof, gives the holder
for value the right to foreclose in his own name. Setze v.
First Nat. Bank, 140 Ga. 603, 607, 79 S. E. 601. See Editor's
Note above.
§ 3348. (§ 2800.) Liens for supplies, etc., fur-
nished. — Landlords furnishing supplies, money,
horses, mules, asses, oxen, farming utensils of
necessity, to make crops, shall have the right to
secure themselves from the crops of the year in
which such things are done or furnished, upon
such terms as may be agreed upon by the parties,
with the following conditions:
1. The liens provided for in this section shall
arise by operation of law from the relation of land-
lord and tenant, as well as by special contract in
writing, whenever the landlord shall furnish the
articles enumerated in said section, or any one of
them, to the tenant, for the purpose therein
named. Said liens may be enforced in the manner
provided in section 3366 of this Code.
2. Whenever said liens may be created by
special contract in writing, as now provided by
law, the same shall be assignable by the landlord,
and may be enforced by the assignees in the man-
ner provided for the enforcement of such liens by
landlords.
3. They shall only exist as liens on the crops of
the year in which they are made, and may be fore-
closed before the debt is due if the tenant is re-
moving or seeking to remove his crops from the
premises, or when other legal process, not in
favor of the landlord nor controlled by him nor
levied at his instance or procurement, is being en-
forced against said crops.
4. Every person giving a lien under this section,
having previously given a lien or liens under it or
any other lien, shall, when giving a new lien un-
der this section on the same property to another
person, inform such person, if interrogated, as to
the facts of the amount of such lien or liens and
to whom given.
5. Such person giving false information as to
the facts aforesaid shall be deemed a common
cheat and swindler.
6. The liens created under this section are here-
by declared to be superior in rank to other liens,
except liens for taxes, the general and special
[ 905 ]
§ 3348
LIENS OTHER THAN MORTGAGES
3348
liens of laborers, and the special liens of landlords,
to which they shall be inferior, and shall, as be-
tween themselves and other liens not herein ex-
cepted, rank according to date. Acts 1874, p. 18;
1890-1, p. 72; 1895, p. 26.
I. By and to Whom Supplies Furnished.
II. What Are Supplies.
III. Characteristics of Lien.
IV. Priorities.
V. Enforcement.
Cross References.
For full treatment, see 1 Enc. Dig. 299; 1 Cum. Dig. 344.
For corresponding section, see § 3702. As to apparent in-
consistencies between these two sections, see Editor's Note
to § 3702.
I. BY AND TO WHOM SUPPLIES FURNISHED.
Relation of Landlord Must Exist.— For one to have a lien
as landlord for supplies, without special contract in writ-
ing, the relation of landlord must exist; and that it did
exist must appear in the affidavit of foreclosure. Eve v.
Crowder, 59 Ga. 799.
Where one person rents to another land upon which to
make a crop, the contract raises the relation of landlord
and tenant between them, within the meaning of this sec-
tion. It is not essential that, the tenant should enter into
actual possession of the premises before the advancement
is made. Lowe v. Worthington, 144 Ga. 181, 86 S. E- 537;
Johnson v. McDaniel, 138 Ga. 203, 75 S. E. 101.
Sub-tenants — Lien of Landlord. — When a landlord accepts
a sub-tenant as his tenant, the sub-tenant becomes the
substitute of the original tenant to such an extent that the
lien of the landlord for supplies furnished his tenant to aid
in making the crop can not be defeated as to the particular
crop by a contract of sub-renting to which the landlord has
not consented. Nash v. Orr, 9 Ga. App. 33, 70 S. E- 194.
Same — Lien of Original Tenant. — A tenant may be a
landlord as to a sub-tenant so as to have a lien under this
section. Strickland v. Stiles, 107 Ga. 308, 33 S. E. 85.
Supplies Must Be Furnished as Landlord. — In order for a
landlord to have a lien upon his tenant's crop for supplies,
under this section the landlord must furnish the articles
as landlord. Swann, etc., Co. v. Morris, 83 Ga. 146; Scott
v. Pound, 61 Ga. 579, 9 S. E. 767.
The landlord has no lien for articles he may furnish in
his capacity as a mere agent for another. Henderson v.
Hughes, 4 Ga. App. 52, 55, 60 S. E. 813.
A "trustee," as landlord, may foreclose a lien in his own
name under this section though the land belong to another
person. Fargason v. Ford, 119 Ga. 343, 46 S. E. 431.
Goods Furnished by Another — When Lien Arises. — A land-
lord is entitled to his lien for supplies where, at the request
or with the consent of the tenant, he directs the furnishing
of supplies to the tenant by an agent and assumes sole lia-
bility for the debt thus created. Henderson v. Hughes, 4
Ga. App. 52, 60 S. E. 813.
Same — When No Lien Arises.-— A landlord has no lien for
supplies, where the supplies are furnished to his tenant by
a third person on the tenant's credit, and the mere fur-
nishing of the money, three or four weeks thereafter, by the
landlord to enable the tenant to pay promptly for the
fertilizer already purchased and partly used is not neces-
sary to make the crop. Landers v. Touchstone, 27 Ga. App.
310, 108 S. E. 125.
"A landlord has no lien for supplies furnished to aid in
making a crop, if they are furnished by another, or. if they
are furnished without the tenant's consent, or the debt is
assumed by the landlord without the tenant's consent."
Henderson v. Hughes, 4 Ga. App. 52, 55, 60 S. E. 813.
Same — Landlord as Surety. — "In order for a landlord to
have a lien upon his tenant's crop for supplies, etc., the
landlord must furnish the articles, and not merely become
the tenant's surety for the price to some other person by
whom they are sold to the tenant." Scott v. Pound, 61
Ga. 579; Swann etc., Co. v. Morris, 83 Ga. 143, 9 S. E.
767; Brimberry v. Mansfield, 86 Ga. 792, 13 S. E- 132;
Rodgers v. Black, 99 Ga. 139, 25 S. E- 23.
To Whom Supplies Furnished.— Where supplies are fur-
nished to two parties to make a crop, but only one is a
tenant no lien arises under this section. Saterfield v.
Moore, 110 Ga. 514, 35 S. E. 638.
A landlord who rents to an individual and stipulates to
furnish him board, but afterwards accepts a partnership,
of which the first tenant is a member, as tenant in lieu of
the original tenancy, has no lien upon the crop made by
the partnership for the board of the original tenant, the
partnership having made no stipulation as to such board,
and the new partner not knowing of any contract relating
thereto. Reynolds v. Hindman, 88 Ga. 314, 14 S, E- 471.
[ 906 ]
Cropper Not a Tenant. — A cropper is not a tenant and
there is therefore no lien under this section for supplies
furnished to a cropper. Fields v. Argo, 103 Ga. 387, 30 S.
E. 29.
II. WHAT ARE SUPPLIES.
Supplies in General. — In foreclosing his lien under this
section a landlord has the right to include any instrumen-
tality necessary to make a crop, which was furnished bj
him and used by his tenant, and which was essential to
the creation and cultivation of the crop. Boyce v. Day, 3
Ga. App. 275, 59 S. E. 930.
The means employed by the tenant to obtain such things
as are necessary to produce his crop are immaterial. The
essential questions to be answered are: (1) Were the ar-
ticles furnished to the tenant by the landlord himself? (2)
Were the articles furnished by the landlord used in mak-
ing the crop? and (3) was the use of the articles supplied
essentially necessary to the making of the crop in ques-
tion? Boyce v. Day, 3 Ga. App. 275, 59 S. E. 930.
Board furnished to the tenant under the rent contract
whereby the tenant agrees that the landlord shall have a
lien on his crop for his board, is within the section. Jones
v. Eubanks, 86 Ga. 616, 12 S. E. 1065. See also, Reynolds
v. Hindman, 88 Ga. 314, 14 S. E. 471.
Money. — The term "supplies" includes money furnished
by the landlord and used by the tenant in making and
gathering the crops. Strickland Bros. v. Stiles, 107 Ga.
308, 33 S. E. 85.
Actual Use to Make Crop Unnecessary. — In the fore-
closure of a landlord's lien for supplies, it is not necessary
to prove that the supplies furnished were actually used in
making the crop. To create the lien it is sufficient that
the supplies were actually furnished, and that the landlord
understood and intended that they should be used to aid
in making the crop. Nash v. Orr, 9 Ga. App. 33, 70 S. E.
194. See also Buxton v. Hickman, 18 Ga. App. 260, 89 S.
E. 380.
HI. CHARACTERISTICS OF LIEN.
Arises by Operation of Law. — A landlord's lien for supplies
arises by virtue of the statute when the supplies are fur-
nished, but such lien cannot be asserted against the ten-
ant's crop except by foreclosure. Hawkins v. Smith, 24
Ga. App. 464, 101 S. E- 311; Lathem & Son,s v. Stringer, 17
Ga. App. 585, 87 S. E. 840; Lathem & Sons v. Stringer,
145 Ga. 224, 88 S. E. 941; Moseman v. Comer, 160 Ga. 106,
127 5. E. 406; Turner v. Sitton, 160 Ga. 215, 127 S. E. 847.
Not Affected by Bankruptcy. — A lien given by this sec-
tion is not obtained by legal proceedings, and is not affected
by bankruptcy of the tenant, but is to be recognized and
enforced in the bankruptcy proceedings. In re Harper,
294 Fed. 899. See also Henderson v. Meyer, 225 U. S. 631,
632, 32 Sup. Ct. 699, 56 L. Ed. 1233.
The landlord's lien for supplies is in the nature of "pur-
chase-money," and is not voided or defeated by § 67f of the
bankruptcy act. Moseman v. Comer, 160 Ga. 106, 127 S. E-
406. See also, Turner v. Sitton, 160 Ga. 215, 127 S. E. 847.
Power of Landlord over Crop. — -The fact that a landlord
has a lien for supplies does not give him a right to pick a
cotton crop without the tenant's consent in order to save
the crop. Wadley v. Williams, 75 Ga. 272.
Assignability. — The lien is assignable and the assignee may
enforce it even though it is assigned on the day it is cre-
ated, no supplies having been furnished. Benson v. Got-
theimer, 75 Ga. 642.
"Year" Not Solar Year. — Where the supplies are fur-
nished in November to be used in making next year's
crop, the lien given by this section arises. Johnson v. Mc-
Daniel, 138 Ga. 203, 75 S. E. 101.
IV. PRIORITIES.
Rights of Bona Fide Purchaser. — This lien is not effective
as against a bona fide purchaser. DeLaigle v. Shuptrine,
28 Ga. App. 380, 110 S. E. 920.
Rights of Assignee of Bankrupt. — The fact that the lien
was not foreclosed prior to the assignment by the bank-
rupt of the homestead set aside to him out of the proceeds
of his share of the crops will not defeat the landlord's lien.
Moseman v. Comer, 160 Ga. 106, 127 S. E. 406.
Lien of Common Law Levy. — If crops subject to lien un-
der this section be sold under a common law levy, the lien
will attach to the proceeds of such sale. Cochran v. Waits,
etc., Co., 127 Ga. 93, 56 S. E. 241. See also, Turner v. Sit-
ton, 160 Ga. 215, 127 S. E. 847.
Lien of Judgment.— Although a factor's lien on crops for
supplies furnished formerly included in the statute is su-
perior to the lien of a judgment, delivery of the crops to
the factor will not vest title in him nor divest the judg-
ment lien. Stallings v. Harrold, 60 Ga. 478.
The lien of a landlord for supplies is superior to that of
§ 3348(1)
LIENS OTHER THAN MORTGAGES
§ 3352
a mortgagee, also for supplies. Manley v. University, 27
Ga. App. 822, 110 S. E. 49.
V. ENFORCEMENT.
The proper remedy to enforce a lien, under this section is
that prescribed in § 3366, and not a distress warrant.
Mackenzie v. Flannery & Co., 90 Ga. 590, 16 S. E. 710.
Must Be Enforced Strictly as Provided. — "As the statute
creates this special lien, with the right of summary en-
forcement, only under certiin circumstances, debts can not
be collected in the mode so provided, unless they fall
within the terms of such statute. Parties can not by
agreement bring other debts than those which the law it-
self embraces within its scope." Parks v. Simpson, 124
Ga. 523, 524, 52 S. E. 616.
Enforcement in Bankruptcy. — While the method of en-
forcing liens given by statute to a landlord must ordinarily
be followed, such procedure is not necessary, where before
it is taken the property passes into possession of a court
of bankruptcy. In re Harper, 294 Fed. 899. But, see Mose-
man v. Comer, 160 Ga. 106, 127 S. E- 406.
Maturity of Debt. — Where a note is given for supplies the
lien under this section can not be foreclosed until the note
fs due except as provided in sub-section 3. Harmon v.
Earwood, 29 Ga. App. 399, 115 S. E- 502.
Same — Exceptional Case. — Since a lien under this section
"may be foreclosed before the debt is due, if the tenant is
removing or seeking to remove his crops from the prem-
ises," a demand for payment is not, in such a case, an es-
sential prerequisite to the right to foreclose. Vaughn v.
Strickland, 108 Ga. 659, 34 S. E. 192.
§ 3348(1). Lien covers crop before planting
when so stipulated. — A mortgage given to secure
advances for the purpose of making and gathering
crops, shall embrace and cover crops before the
same are planted or growing of such mortgagor,
when it is so stipulated therein, within the limit
of the calendar year such crops may be planted.
Acts 1924, p. 125.
§ 3349. Mortgages on crops, when superior to
older judgments. — The lien of mortgages on
crops, which mortgages are given to secure the
payment of debts for money, supplies, and other
articles of necessity, including live stock, to aid in
making and gathering such crops, shall be superior
to judgments of older date than such mortgages.
Acts' 1899, p. 78.
Prior to Other Mortgages. — The lien of a mortgage for
supplies is prior to the lien of other mortgages, even though
not. expressly so stated in the section. To hold otherwise
would defeat the purpose of the section. Durden v. Ay-
cock Bros., 13 Ga. App. 420, 79 S. E. 213.
Effect of Prior Deed. — The superiority of a mortgage on
crops to older judgments is a creature of the statute re-
ferred to, but there is no statute making the lien of mort-
gages on crops superior to the rights of the grantee in a
deed conveying title which is of older date than the mort-
gage. Virginia-Carolina Chemical Co. v. Floyd, 159 Ga.
555, 126 S. E. 378.
The provisions of § 3349 make the lien of a mortgage on
crops given for the purpose stated in that section superior
to a judgment of older date than such mortgage, but its
provisions can not be so extended as to create the same
superiority of the mortgage lien over a conveyance of title
prior in date to the mortgage. Virginia -Carolina Chemical
Co. v. Floyd, 159 Ga. 555, 126 S. E. 378.
Prior to Common Law Judgments.— The mortgage is su-
perior to the lien of an older common-law judgment, though
the mortgage was executed after such supplies were fur
nished, and subsequently to the levy of the execution is
sued upon such common-law judgment. Akin v. Comer
Mercantile Co., 138 Ga. 733, 75 S. E- 1121; Franklin v
Callaway, 120 Ga. 382, 47 S. E. 970. See also, Heard v
Adams & Bro., 17 Ga. App. 33, 86 S. E. 260.
"Judgment" Not Strictly Interpreted. — The word "judg
nient," as used in this section so far as applicable to pro-
ceedings by rule brought to distribute funds in custod'a
legis, includes any final process under which the property
(the proceeds of the sale of which are subject to distribu-
tion) was brought to sale or could have been legally sold.
Durden v. Aycock Bros., 13 Ga. App. 420, 79 S. E- 213.
Crop Must Be Planted. — This section does not alter the
rule that there can be no mortgage of a crop until it is
planted. Hank v. Ellaville Guano Co., 143 Ga. 312, 85 S.
E. 119.
Applied in bankruptcy proceedings. In re Beard, 204
Fed. 129.
§ 3350. What necessary to give priority. —
In order for such lien to have such priority, the
money or other supplies mentioned shall be fur-
nished in the year in which such crop is grown,
and shall be intended in good faith to be used in
and for the purpose of making such crops.
§ 3351. Landlord's lien not affected. — The two
preceding sections shall not be construed as
affecting the lien of landlords for rent and sup-
plies as is provided under existing laws.
§ 3352. (§ 2801.) Liens of merchandise.
1. All mechanics of every sort, who have taken
no personal security therefor, shall, for work done
and material furnished in building, repairing, or im-
proving any real estate of their employers; all
contractors, materialmen, and persons furnishing
material for the improvement of real estate; all
contractors for building factories, furnishing
material for the same, or furnishing machinery
for the same; and all machinists and manufac-
turers of machinery, including corporations en-
gaged in such business, who may furnish or put up
in any county of this State any steam-mill or othef
machinery, or who may repair the same; and all
contractors to build railroads, shall each have a
special lien on such real estate, factories, or rail-
roads.
For full treatment, see 9 Enc. Dig. 317; 8 Cum. Dig. 565.
Editor's Note. — Mechanics' liens on realty have been the
subject of frequent legislation. The tendency has always
been to extend the scope of the lien and the class of per-
sons to whom it is given. A history of the legislation in
Georgia on this subject will be found in Prince v. Neal-
Millard Co., 124 Ga. 884, 53 S. E. 761.
Constitutionality. — This section is not in violation of the
provision of the constitution which declares that no per-
son shall be deprived of his property without due process
of law, or the provision which guarantees that protection
to property shall be impartial and complete. Prince v.
Neal-Millard Co., 124 Ga. 884, 53 S. E- 761.
Lien Not Affected by Repeal of Statute. — Where the lien
of a materialman has, under the terms of the statute, be-
come fixed and secured, such lien is then a vested right ;
and no subsequent repeal or modification of the act under
which it became fixed can destroy or modify such right.
Waters v. Dixie Lumber, etc., Co., 106 Ga. 592, 32 S. E-
636.
All Lien of this Section of Same Character. — The liens
specified in this section are created by the same statute,
are of the same character and governed by the same prin-
ciples of law. Guaranty Invest., etc., Co. v. Athens Engi-
neering Co., 152 Ga. 596, 110 S. E. 873.
Section Strictly Construed. — "The mechanic's lien, as to
realty, is in derogation of common law, and is to be con-
strued strictly and extended no further than its words
plainly import. Fox v. Rucker, 30 Ga. 525." Oglethorpe
Sav., etc., Co. v. Morgan, 149 Ga. 787, 792, 102 S. E. 528;
Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S. E. 1001.
Therefore this section does not operate in favor of a con-
tractor paving a sidewalk in a street adjacent to a lot. See-
man v. Schultze, 100 Ga. 603, 28 S. E. 378.
Same Person as Contractor and Mechanic. — One who oc-
cupies the position both of a contractor and of a mechanic,
in either capacity, or in both, has a right to a lien, under
this section. Thurman v. Pettitt, 72 Ga. 38.
Foreign Contracts. — Although a contract for furnishing
materials in Georgia be made in Alabama the Georgia law
will apply as to the lien of the material man. Thurman v.
Kyle, 71 Ga. 628.
Non-residents of Georgia have the same remedies under
this section as citizens. Thurman v. Kyle, 71 Ga. 628.
Materials Furnished — Machinery. — Machinists, and manu-
facturers of machinery, have no lien on real estate for ma-
chinery furnished, unless the machinery furnished is at-
tached to, and become incorporated with, the realty for
[ 907 ]
§ 3352
LIENS OTHER THAN MORTGAGES
§ 3352
which it was furnished. Schofield & Son v. Stout, 59 Ga.
537.
The furnishing of machinery for a steam saw-mill, to
improve or enlarge the mill or to keep it efficient, entitles
the machinist to a lien under this section and not § 3358.
Filer, etc., Co. v. Empire Lumber Co., 91 Ga. 657, 18 S. E.
359.
Same — Stage Scenery.— Scenery and other stage and
science outfit of an opera house are "material" for improv-
ing real estate, within this section. Waycross Opera
House v. Sossman, 94 Ga. 100, 20 S. E- 252.
Other Security.— No implied waiver of a material-man's
statutory lien results from the acceptance of other collateral
security. The statute is silent as to other security, in case
of material-men, not mechanics. Ford v. Wilson & Co.,
85 Ga. 109, 11 S. E. 559.
Whether an allegation that a mechanic has taken no per-
sonal security is necessary or not, the error if any is cured
by verdict. Royal v. McPhail, 97 Ga. 457, 25 S. E. 512.
Contract by Incorporators. — This section is applicable as
against a corporation where the contract performance of
which is claimed to give a lien, was made with individuals
who agreed to incorporate. Chicago Bldg., etc., Co. v.
Talbotton Creamery, etc., Co., 106 Ga. 84, 31 S. E- 809.
No Lien on Public Property. — Public property is not sub-
ject to a lien under this section. Neal- Millard Co. v.
Trustees, 121 Ga. 208, 48 S. E- 978.
Under this section a mechanic is not entitled to a lien
for work done on property belonging to a municipal corpo-
ration and used for public purposes. Albany v. Lynch, 119
Ga. 491, 46 S. E. 622.
Improvements on Separate Pieces of Property. — Where
there is a single contract for improvements on separate
pieces of property the lien for materials furnished attaches
to each piece of property. Lyon v. Cedartown Lumber Co.,
13 Ga. App. 450, 79 S. E- 236.
Railroad Contractors — No Equitable Lien. — A contractor,
building a railroad, has no equitable lien independent of
this section. Farmers' Loan, etc., Co. v. Candler, 92 Ga.
249, 18 S. E. 540.
Same — Lien on Whole Road. — The liens upon railroads, is
upon the whole railroad to which it applies. There is no pro-
vision of law allowing a contractor to set up and enforce a
lien upon a part of any railroad, though such part may be
all of the road which he constructed or aided to con-
struct. Farmers' Loan, etc., Co. v. Candler, 87 Ga. 241, 13
S. E. 560.
Same — No Lien of Sub-Contractor. — The lien given by this
section to "contractors 'to build railroads" is confined to
those contractors employed by the person or company
owning the railroad, and the right of lien does not extend
to subcontractors. Carter v. Rome, etc., Constr., Co., 89
Ga. 158, 15 S. E. 36.
Enforcement — Justice's Court. — A justice's court is with-
out jurisdiction to enforce the lien given by this section.
McAuliffe v. Baum, 142 Ga. 590, 83 S. E. 239.
An entire lien claimed by a material-man, and recorded
in accordance with the statute, cannot be enforced by di-
viding the amount and giving notes of less than $100 each
and suing them in a justice's court. The statute contem-
plates but a single lien as to each transaction and a single
suit to enforce it. Bell & Bro. v. Rich, 73 Ga. 240.'
Same — Title in One Not a Party. — Want of title in the
defendant to the premises on which the lien is claimed, and
alleged title in a third person who is no party to the suit,
will not bar an action for foreclosing and enforcing the lien
under this section. Ford v. Wilson & Co., 85 Ga. '109, 11
S. E. 559.
Same — Personal Judgment. — A mechanic, may institute
suit for the enforcement of this lien against the specific
property on which his lien attaches, and in the same ac-
tion obtain a general judgment against his debtor for the
same debt. Parish v. Murphy, 51 Ga. 615, 616.
Applied in London v. Coleman, 62 Ga. 146; Jones v.
Traynham, 20 Ga. App. 349, 93 S. E- 154.
2. When work done or material furnished for the
improvement of real estate is done or may be fur-
nished upon the employment of a contractor, or
some other person than the owner, then, and in
that case, the lien given by this section shall attach
upon the real estate improved as against such true
owner for the amount of the work done, or ma-
terial furnished, unless such true owner shows
that such lien has been waived in writing, or pro-
duces the sworn statement of the contractor, or
other person, at whose instance the work was
[ 908 ]
done or material was furnished, that the agreed
price or reasonable value thereof has been paid:
Provided, that in no event shall the aggregated
amount of liens set up hereby exceed the contract
price of the improvements made. Acts 1873, p.
44; 1893, p. 34; 1895, p. 27; 1897, p. 30; 1899, p. 33.
For full treatment, see 9 Enc^ Dig. 319; 8 Cum. Dig. 568.
Editor's Note. — This paragraph relating to sub-contract-
ors, materialmen, etc., has been frequently changed in the
effort to give the sub-contractor an adequate remedy and
at the same time to protect the owner. Many of the cases
under the former provisions are now wholly irrelevant, par-
ticularly those dealing with the notice to be given to the
owner, or, under another form of the statute the detention
of twenty five per cent of the contract price. See Prince
v. Neal-Millard Co., 124 Ga. 884, 53 S. E- 761, for an ac-
count of the various changes.
Consent of Owner Necessary. — The title of the true owner
of land can not be subjected to a lien for material, unless
he expressly or impliedly consents to the contract under
which the improvements are made. Reppard, etc., Co. v.
Morrison, 120 Ga. 28, 47 S. E. 554.
Owner Not Estopped by Silence. — The true owner, though
cognizant that a stranger to the title is having improve-
ments made on the premises, is under no legal duty to give
to a materialman any information touching the ownership
of the property; and the owner will not be estopped from
setting up title thereto, as against a materialman, when
nothing has been done by any one to mislead him as to the
ownership of the premises improved. Reaves v. Meredeth,
123 Ga. 444, 51 S. E. 391. See also Rice v. Warren, 91 Ga.
759, 17 S. E. 1032.
Estoppel by Representations^ — Where materials are fur-
nished on representation of the owner of real estate that
it is to be used in building thereon, the owner is estopped
from setting up that some of it was not so used. Howell
v. Cordray, 22 Ga. App. 195, 95 S. E. 762.
Lessee Cannot Bind Owner. — One who furnishes material
for the improvement of real estate, upon the employment
of a contractor whose contract for the improvement is with
a lessee, and who sustains no contractual relation with .the
owner of the fee, is not entitled to a lien as against such
owner under the provisions of this section. Pittsburgh
Plate Glass Co. v. Peters Land Co., 123 Ga. 723, 51 S. E.
925; Reppard, etc., Co. v. Morrison, 120 Ga. 28, 47 S. E. 554.
The lessee cannot bind the owner even where the owner
authorized the improvement, nor where he reimbursed the
lessee, nor where the lessor owns a majority of the stock
of the lessee. Consolidated Lumber Co. v. Ocean Steam-
ship Co., 142 Ga. 186, 190, 82 S. E. 532; Central, etc., R. Co.
v. Shiver, 125 Ga. 218, 53 S. E. 610.
Who Is a "Contractor, or Some Other Person." — "The
word contractor is not to be construed in its technical
sense, which would embrace any person who had any con-
tract of any character, but is to be given its limited, col-
loquial sense, meaning a person engaged in the business - of
making contracts for the improvement of real estate, and
the other persons referred to in the statute embrace that
class who may furnish material for the improvement of
real estate but may not be engaged in a business. commonly
known as the business of a contractor." Pittsburgh Plate
Glass Co. v. Peters Land Co., 123 Ga. 723, 51 S. E. 925;
Central, etc., R. Co. v. Shiver, 125 Ga. 218, 220, 53 S. E: 610.
A tenant does not come within the meaning of the phrase
"contractor, or some other person," in this section. Cen-
tral, etc., R. Co. v. Shiver, 125 Ga. 218, 220, 53 S. E. 610.
Meaning of "Contract Price." — Where a contractor aban-
doned the work against the will of the owner, the gross
sum fixed as the price for completing the entire work is
the true "contract price," and not the sum contemplated
to be paid in the event the owner suspended the work at a
period before completion. Hunnicutt, etc., Co. v. Van
Hoose, 111 Ga. 518, 36 S. E. 669.
Leasehold Estate Subject to Lien. — The words "true
owner," as used in this section are sufficiently compre-
hensive to include the owner of a leasehold estate. Wilson
Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593,
79 S. E. 465.
Total of Liens Exceeding Contract Price. — It is no de-
fense to the foreclosure of a materialman's lien that other
materialmen may claim liens which, if added to the amount
claimed in the foreclosure suit and the payments made to
the contractor," and properly applied by him, would exceed
the contract price. Tuck v. Moss Mfg. Co., 127 Ga. 729, 56
S. E. 1001.
Payments by Owner to Contractor. — Payments by the
owner to the contractor do not affect the liens of sub-con-
tractors or materialmen unless made in accordance with
§ 3352
LIENS OTHER THAN MORTGAGES
§ 3353
the statute or actually applied to the claims of the material-
men. Massachusetts Bonding, etc., Co. v. Realty Trust
Co., 142 Ga. 499, S3 S. E- 210; Prince v. Neal-Millard Co.,
124 Ga. 884, 53 S. E. 761.
Under this section the owner who pays the contractor
must see to it that sub -contractors having liens are satis-
fied, even though the liens have not been filed at the time
of the payment. Green v. Farrar dumber Co., 119 Ga. 30,
46 S. E. 62.
The lien of a materialman is not affected by any private
arrangement between the property owner and the con-
tractor. Tuck v. Moss Mfg. Co., 127 Ga. 729, 56 S. E. 1001.
Where the owner receives and uses the materials fur-
nished by a sub contractor and has paid the contractor
more than the amount sued for by the materialman, the
owner is estopped to deny that the materialman had per-
formed his contract. Koppe v. Rylander, 33 Ga. App. 686,
128 S. E- 68.
Same — Applied to Claim' for Material. — Where an owner
of real estate, upon which improvements have been erected
by a contractor, has paid the full contract price to the con-
tractor, and the contractor has applied the whole amount
so received by him to the payment of valid claims for ma-
terial and labor employed in constructing the improve-
ments, the owner will be protected against claims of lien
for material furnished to the contractor, filed subsequently
to payment and application of the full contract price as
above indicated. Jones Brick Co. v. Seagler Bros., 146 Ga.
19, 90 S. F. 473.
Estoppel of Sub-contractor. — Where the owner notifies a
sub-contractor of an intended payment to the contractor
and no objection is made, the sub-contractor will be es*
topped to the extent of such payment. Bailie v. Wood-
ward Lumber Co., 141 Ga. 806, 82 S. K. 232.
Payment by Instalments. — Where the owner contracts to
pay by instalments he does so at his own risk as to claims
of sub-contractors. Massachusetts Bonding, etc., Co. v.
Realty Trust Co.,. 142 Ga. 499, 83 S. F. 210.
The sworn statement contemplated by this section is a
single statement made after completion of the work and be-
fore final settlement. Massachusetts Bonding, etc., Co. v.
Realty Trust Co., 142 Ga. 499, 83 S. E- 210. See also,
Waldon v. Maryland Casualty Co., 155 Ga. - 76, 81, 116 S.
F- 828.
Lien Limited by Amount Due Contractor. — A sub -con-
tractor has no lien where no sum is due the original con-
tractor because of his wrongful abandonment of the con-
tractor. Rowell v. Harris, 121 Ga. 239, 48 S. F. 948.
The burden of showing that the amount for which a lien
is claimed by a sub-contractor, is not more than the con-
tract price of the improvements, lies on the sub-contractor.
Stevens v. Land Co., 122 Ga. 317, 50 S. F. 100. See also,
Georgia Steel Co. v. White, 136 Ga. 491, 492, 71 S. F. 890.
No Lien for Material Furnished Sub-Contractor. — A ma-
terialman furnishing material for the improvement of real
estate to a sub-contractor who has no contractual relation
with the owners of such realty does not thereby acquire a
lien upon the property so improved. The case of Heard v.
Holmes, 113 Ga. 159, 38 S. F. 393, in so far as it conflicts
in principle with this decision, is hereby overruled. General
Supply Co. v. Hunn, 126 Ga. 615, 55 S. F. 957. See also,
Muller Bank Fixture Co. v. Georgia State Sav. Assn., 143
Ga. 840, -85 S. F. 1018.
Relation of Owner and Contractor Must Exist. — This sec-
tion applies only so long as the relation of owner and con-
tractor continues. The contractor can not bind the owner
by ordering additional materials after the relation has
ceased to exist. Sheehan v. South River Brick Co., Ill
Ga. 444, 36 S. F. 759.
Waiver of Lien. — The taking by the materialman of a
promissory note from the person to whom the material was
furnished, is not, in the absence of an express agreement,
an extinguishment of the materialman's right to a lien for
the indebtedness represented by the note. Pippin v.
Owens, 29 Ga. App. 789, 116 S. E- 549.
A contract between materialmen and a contractor that
the former will indemnify the latter against liens is not a
waiver as between the materialmen and the owner who has
no notice of the contract. Massachusetts Bonding etc.,
Co. v. Realty Trust Co., 142 Ga. 499, 83 S. F. 210.
Where an owner makes payments to a contractor and the
latter makes payments to a materialman, the materialman
by applying the payments to a general account waives his
right to a lien. It is his duty to keep his accounts in such
shape as to be able to make out his right to a lien. Wil-
liams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, 63
S. E. 584.
Foreclosure by Materialman. — A materialman or sub-con-
tractor, in order to foreclose his lien must have a judgment
against the contractor or join him in the suit to foreclose.
Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 62 S. E. 107; Clax-
ton v. Farrar Lumber Co., 119 Ga. 37, 45 S. E. 723; Royal
v. McPhail, 97 Ga. 457, 25 S. F. 512; Lombard v. Young
Men's Library Fund, 73 Ga. 322.
A foreign judgment is not sufficient until sued on in this
state. (Dissent). Columbian Iron Works v. Crystal Springs
Bleachery Co., 145 Ga. 621, 89 S. F. 751.
In general judgment against the contractor or suit against
him is a necessary incident to the foreclosure of a material-
man's lien. But this is not true where the owner has
brought suit in equity against both contractor and material-
man to enjoin foreclosure. Massachusetts Bonding, etc.,
Co. v. Realty Trust Co., 142 Ga. 499, 83 S. E. 210.
Lien Not Affected by Repeal of Statute. — When the lien
of a materialman has become fixed it is a vested right, and
a subsequent repeal or modification of the statute under
which it became fixed cannot destroy or modify it. Waters
v. Dixie Lumber, etc., Co., 106 Ga. 592, 32 S. E- 636.
Applied in Logue v. Walker, 141 Ga. 644, 81 S. E. 849;
Koppe v. Rylander, 29 Ga. App. 41, 42, 114 S. E. 81.
§ 3353. (§ 2804.) Mechanics' liens, how de-
clared and created. — To make good the liens
specified in section 3352, they must be created and
declared in accordance with the following provi-
sions and on failure of either the lien shall cease,
viz. :
1. A substantial compliance by the party claim-
ing the lien with his contract for building, repair-
ing, or improving, or for materials or machinery
put up or furnished, as set forth in said section.
For full treatment, see 9 Enc. Dig. 323. As to enforce-
ment, see § 3365.
Failure to Complete on Time. — Where the contractor agrees
that the improvements shall be completed by a certain date,
the lien under this section does not arise if there is a fail-
ure to perform such agreement. Tompkins Co. v. Monti-
cello Cotton Oil Co., 137 Fed. 625.
Approval of Engineer Condition Precedent. — A stipulation
in a building contract to" the effect that the compensation of
a builder shall be due and payable only on the certificate
of a named engineer is a condition precedent, to the fore-
closure of the contractor's lien. Southern Mfg. Co. v. Moss
Mfg. Co., 13 Ga. App. 847, 81 S. E. 263.
Violation of Contract. — The law does not allow a contractor,
mechanic or materialman to violate a contract and claim
a lien for work done, because of an apprehension or fear
that he will not receive his pay. Rome Hotel Co. v. Wal-
lick, 87 Ga. 34, 43, 13 S. E. 116.
The death of the owner shortly before completion of a
house will not prevent the perfection of a contractor's lien,
when the house was completed by agreement with the ad-
ministration. Boynton v. Westbrook, 74 Ga. 68.
Claim of Lien Need Not Show Completion. — It is not re-
quired that the claim of lien as recorded should show on its
face that the materialman has complied with his contract;
nor is it required that such claim shall allege ownership of
the house and premises more distinctly than that they are
the house and premises of the person named. Ford v.
Wilson & Co., 85 Ga. 109, 11 S. E. 559.
Non-Performance by Contractor. — Where the sub-con-
tractor has fully performed his work, non- performance by
the contractor will not defeat the sub-contractor's lien.
Holmes v. Venable, 27 Ga. App. 431, 109 S. E- 175; Massa-
chusetts Bonding, etc., Co. v. Realty Trust Co., 142 Ga.
499, 83 S. F. 210.
In a proceeding to foreclose a materialman's lien for ma-
terial furnished a contractor in the improvement of real es-
tate, it is not necessary to allege that the contractor had
completed his contract with the owner of the premises, or
that such owner had not paid the contractor for the im-
provements made, upon his sworn statement that he had
paid for the materials used. Arnold v. Farmers Exch., 123
Ga. 731, 51 S. E. 754.
2. The recording of his claim of lien within three
months after the completion of the work, or with-
in three months after such material or machinery
is furnished, in the office of the clerk of the supe-
rior court in the county where such property is
situated, which claim shall be in substance as
follows: "A. B., a mechanic, contractor, material-
man, machinist, manufacturer, or other person (as
the case may be), claims a lien on the house,
[ 909 ]
§ 3353
LIENS OTHER THAN MORTGAGES
§ 3354
factory, steam-mill, machinery, or railroad (as the
case may be), and the premises or real estate on
which it is erected or built, of C. D. (describing
the houses, premises, real estate, or railroad), for
building, repairing, improving, or furnishing ma-
terial (or whatever the claim may be)."
Failure for Record Insufficient. — The mere filing of a claim
for record is not sufficient compliance with this section. It
must be actually recorded. Jones v. Kern, 101 Ga. 309, 28
S. E- 850. See also, Ohio Blower Co. v. Savannah Lighting
Co., 21 Ga. App. 464, 465, 94 S. E. 636.
Recordation within 3 months must be alleged in a petition
for foreclosure. Hinkle v. Reid, 16 Ga. App. 788, 86 S. E-
411.
Excuse for Failure to Record. — A failure to claim and rec-
ord is not excused by the fact that the premises and mill
on which the lien would have attached were put into the
hands of a receiver. Filer, etc., Co. v. Empire L,umber
Co., 91 Ga. 657, 18 S. E. 359.
Estoppel of Defendant. — A defendant may be estopped to
deny recordation by an admission in his plea. Royal v.
McPhail, 97 Ga. 457, 25 S. E. 512.
How Time Computed. — From the 6th day of May to the
6th day of August, in a given year, is more than three
months. Jones v. Kern, 101 Ga. 309, 28 S. E. 850.
Where Several Items Furnished. — The lien for materials
furnished under an entire contract is recorded in time if it
is recorded within 3 months after the last item is furnished.
New Ebenezer Ass'n v. Gress Lumber Co., 89 Ga. 125, 14
S. E. 892.
And this is true although the items unpaid for and for
which the materialman claims a lien were all furnished
more than three months prior to the recording of the lien,
and all the other items, including those representing material
furnished within three months of the recording of the lien,
had been paid for. Pippin v. Owens, 29 Ga. App. 789, 116
S. E. 549. See also, Stewart Bros. v. Randall Bros., 138
Ga. 796, 76 S. E. 352.
2^2. The commencement of an action for the
recovery of the amount of his. claim within twelve
months from the time the same shall become due.
Editor's Note. — The provision that action must be brought
within twelve months was inadvertently omitted in incor-
porating this section in the Code of 1910. The section is
treated as if the provision were included. This sub-section
was numbered 3 in the former code.
To What Action Applicable. — The requirement, that suit
to recover the claim must be commenced within twelve
months, relates to the action against the contractor, and
not to the subsequent proceeding against the landowner.
Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 696, 62 S. E. 107.
Running Accounts. — Although it may be a custom for
running accounts to fall due and become payable on Jan-
uary 1 following, yet for the purpose of foreclosing a lien
arising out of such an account, the account will be regarded
as falling due upon "the delivery of the last item consti-
tuting a part of the running account covered by the con-
tract." McCluskey v. Still, 32 Ga. App. 641, 124 S. E- 548.
Day on Which Claim Due Counted. — The day on which a
claim for materials comes due is to be counted in comput-
ing the twelve months. David v. Marbut- Williams Eum-
ber Co., 32 Ga. App. 157, 122 S. E. 906.
Dismissal After Suit Brought. — If a materialman fore-
closes within twelve months and dismisses his action, it
can not be renewed within six months thereafter, unless
the renewal be also within twelve months of the maturity
of the claim. Chamlee L,umber Co. v. Crichton, 136 Ga. 391,
71 S. E. 673.
Verdict Not Conclusive as to Maturity of Claim. — Where
a verdict in a case involving a materialman's lien gives in-
terest for more than a year prior to the date on which
suit to foreclose was brought the plaintiff may write off
the interest for the period anterior to the alleged maturity
of the claim, and the verdict will not be conclusive as to
maturity. David v. Marbut-Williams Lumber Co., 32 Ga.
App. 157, 122 S. E. 906.
Sufficiency of Evidence. — Where the suit was filed on
September 17, 1920, evidence to the effect that the con-
tract was completed "about the middle of September" of
the previous year, the exact date not being positively
known, is insufficient to establish that the suit was filed
within twelve months after the completion of the contract.
Young v. Eanders, 31 Ga. App. 59, 119 S. E. 464.
3. As between themselves, the liens provided
for in said section shall rank according to date,
but all of the liens herein mentioned for repairs,
building, or furnishing materials, upon the same
property, shall, as to each other, be of the same
date when declared and recorded within three
months after the work is done, or before that time.
Said liens specified in section 3352 shall be inferior
to liens for taxes, to the general and special liens
of laborers, to the general lien of landlords for
rent when reduced to execution and levied, to
claims for purchase-money due persons who have
only given bonds for titles, and to other general
liens, when actual notice of such general lien of
landlords and others has been communicated be-
fore the work was done or materials furnished:
but the said liens provided for in said section
shall be superior to all other liens not herein
excepted. Acts 1874, p. 45; 1873, p. 44.
For full treatment, see 9 Enc. Dig. 324, 8 Cum. Dig. 572.
Rights of Purchase — Bona Fide. — The claim of a bona fide
purchaser of real property is superior to the claim of a
materialman whose lien was not recorded at the time of
the purchase. The purchaser has title not a lien. Bennett
dumber Co. v. Martin, 132 Ga. 491, 64 S. E- 484; Ashmore
v. Whatley, 99 Ga. 150, 24 S. E. 941.
But if the purchaser assents to the furnishing of the ma-
terials, the lien of the materialman will attach. Elmore
v. Southern Bank, etc., Co., 28 Ga. App. 72, 110 S. E. 334.
One who derived title from an innocent purchaser is also
protected, although he may have notice of the lien. Ash-
more v. Whatley, 99 Ga. 150, 24 S. E. 941.
Same — With Notice. — The lien under this section, if per-
fected within the time presented, is superior to the claim
of a purchaser with notice of the lien, even though the
purchase is made before the lien was recorded. The lien
relates back to the completion of the work. Oglethorpe
Saw, etc., Co. v. Morgan, 149 Ga. 787, 102 S. E- 528. See
also, Wager v. Carrollton Bank, 156 Ga. 783, 120 S. E- 116.
Incumbrances by Prior Owner. — "The lien of a contractor
or mechanic for improvements is not a charge upon the
premises or the improvements * as against prior liens or in-
cumbrances put upon the property by a previous owner,
and duly recorded." National Bank v. Danforth, 80 Ga. 55,
68, 7 S. E. 546.
Lien for Trust Funds.— A contractor's lien on the prop-
erty of a decedent is superior to the claim of the widow on
account of a debt for trust funds. Boynton v. Westbrook,
74 Ga. 68.
Mortgages. — A mortgage is not one of the liens expressly
made prior to the lien given by this section. Tanner v.
Bell, .61 Ga. 584.
A materialman's lien is superior to the lien of a prior
mortgage for purchase-money, where the material has been
furnished without actual notice of the mortgage. Baisden
& Co. v. Holmes-Hartsfield Co., 4 Ga. App. 122, 60 S. E.
1031.
Applied. Broxton Artificial Stone Works v. Jowers, 4
Ga. App. 91, 60 S. E. 1012.
§ 3354. (§ 2805.) Mechanic's lien on person-
alty. — All mechanics of every sort, for work
done and material furnished in manufacturing or
repairing personal property, shall have a special
lien on the same, which may be asserted by re-
tention of such property, or the mechanic may
surrender such personal property and give credit,
when the same shall be enforced in accordance
with the provisions of section 3366 of this Code,
and shall be superior to all liens but liens for taxes
and such other liens as the mechanic may have
had actual notice of before the work was done or
material furnished. When they surrender posses-
sion of the property to the debtor, such mechanics
shall record thgir claim of lien, within ten days
after such work is done and material furnished, in
the office of the clerk of the superior court of the
county where the owner of such property resides,
which claim shall be in substance as follows: "A.
B., mechanic, claims a lien on (here describe
[910]
'
§ 3355
LIENS OTHER THAN MORTGAGES
§ 3357
the property) of C. D., for work done and material
furnished in manufacturing or repairing (as the
case may be) the same." Acts 1873, p. 44; 1884-5,
p. 43.
For full treatment, see 9 Enc. Dig. 322, 8 Cum. Dig. 569.
See also notes to § 3356.
Who Is Entitled to Lien. — A lien does not arise under this
section when the facts show that the claimants are not me-
chanics but proprietors of a sawmill. Evans v. Beddingfield,
106 Ga. 755, 32 S. E. 664.
A mechanic who performs labor is not limited to a remedy
under this section but may assert a lien under § 3334.
Hilley v. Lunsford, 29 Ga. App. 398, 115 S. E- 667.
Necessary Allegations. — The affidavit for the foreclosure
of a mechanic's lien under this section must allege facts
sufficient to show that the work was done in the manu-
facture or repair of personal property. Cook v. Bowden,
32 Ga. App. 498, 124 S. E. 60.
Running Accounts. — Where a mechanic does work on open
account repairing several articles; he can not at the end
of a year of such transactions record a claim of lien for all
of them. Palin v. Cooke, 125 Ga. 442, 54 S. E. 90.
Where there is an agreement to balance accounts from
time to time, the right to hold the property is waived and
the lien is lost unless a claim of lien is filed. Gearreld v.
Woodruff, 13 Ga. App. 450, 79 S. E- 355.
Work Done by Employees — Lien of Employer. — The lien
provided for in this section is afforded to mechanics, not-
withstanding the work employed in manufacturing or re-
pairing the property may have been performed entirely by
an employee of the mechanic. Fox v. Smith, 143 Ga. 547,
85 S. E. 856.
A firm engaged in operating a repair-shop where others
are employed to do expert mechanical work, and where
material is furnished for the repair of carriages and auto-
mobiles, is entitled to a lien on the property manufactured
or improved. Fox 'v. Smith, 143 Ga. 547, 85 S. E. 856.
Same — Employee Has No Lien. — The lien given by this
section does not attach in favor of a workman who is hired
by another to do the work. In such a case, the possession
and the lien is in the master or contractor. Quillian v.
Central R., etc., Co., 52 Ga. 374.
Who May Create Lien.— Where a vendor retains title to
personal property his claim is superior to the lien of a me-
chanic who has done work at the instance of the vendee.
The vendee can not force a liability on the vendor. Baugh-
man Automobile Co. v. Emanuel, 137 Ga. 354, 73 S. E. 511.
Trover by Owner of Property. — Where a mechanic has
asserted his lien on personal property for repairs thereon
and has enforced payment thereof by foreclosure proceed-
ings, the owner can not bring trover against the mechanic.
Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222, 77 S.
E- 7.
Enforcement. — Whether the mechanic asserts his lien by
retention of the property or by surrendering possession and
recording his lien — he may enforce payment by foreclosure
proceedings according to the provisions of § 3366. Fitz-
gerald Trust Co. v. Burkhart, 12 Ga. App. 222, 77 S. E. 7.
While a foreclosure of his lien is necessary before sale
under it, yet where another levies on the property, it is
proper for the mechanic to arrest the proceeding by claim.
Hurley & Smith v. Epps, 69 Ga. 611.
Applied. Richardson v. Mallory, 13 Ga. App. 496, 79 S. E.
362; Mulkey v. Thompson, 3 Ga. App. 522, 60 S. E- 223.
Most of the cases arose under the early acts but a few
are applicable to the section as it now stands.
Constitutionality. — An act giving a similar remedy has
been held to be constitutional. Flint River Steamboat Co.
v. Foster, 5 Ga. 194.
No Lien for "Supplies." — The statute gives a lien for
"wood and provisions" — not for "supplies" — furnished
steamboats. Kirkpatrick v. Bank, 30 Ga. 465.
No Lien for Construction. — No lien is given by statute for
services rendered, and materials furnished for the construc-
tion of a boat "whilst getting ready for navigation." It
must be after it has actually entered upon the navigation.
Kirkpatrick v. Bank, 30 Ga. 465.
§ 3356. (§ 2807.) Liens in favor of -planing-
mills, etc. — Proprietors of planing-mills and
other similar establishments shall have the same
lien as provided in section 3354, for work done on
material furnished by others, and when they fur-
nish material they shall have the same liens pro-
vided in section 3352 for materialmen; and pro-
prietors of sawmills, when furnishing material for
the improvement of real estate, to purchasers from
them for that purpose, shall be entitled to the lien
provided in said section 3352, to be governed,
when the same are applicable, by the rules laid
down in said section 3352. Acts 1873, p. 45.
See § 3357, and notes thereto. For full treatment, see 8
Enc. Dig. 796, 8 Cum. Dig. 240.
Editor's Note. — Since the liens given by this section are
declared to be the same as those given by §§ 3352, 3354, the
cases cited under those sections are equally applicable
here.
Sawmill as "Other Similar Establishment" — The pro-
prietor of a sawmill as well as a planingmill has a lien un-
der this section on the product of the mill for work done on
material furnished by others. Murphey v. McGough, 105
Ga. 816, 31 S. E. 757.
Must Retain Property or File Lien. — In order for the pro-
prietor of a sawmill to acquire a lien upon the lumber
sawed under a contract with the owner of the lumber, after
the lumber sawed has been surrendered to the owner there-
of, it is necessary for him to file and record his lien with-
in ten days from the time of the completion of the work.
Jones v. Newsome, 27 Ga. App. 386, 108 S. E. 558; Richard-
son v. Mallory, 13 Ga. App. 496, 79 S. E. 362.
What Constitutes Retention. — Assertion of a lien by re-
tention of the property, under this section, is not shown
where lumber is hauled from the plaintiff's sawmill and
placed on the right of way of the railroad for the defendant.
Daniel v. Blackwell, 30 Ga. App. 786, 119 S. E. 447.
Completion of Contract Necessary. — "The proprietor of a
sawmill who makes a contract to saw the lumber of an-
other, and substantially complies with his contract, is en-
titled to a lien, but not otherwise." Hawkins v. Chambliss,
116 Ga. 813, 814, 43 S. E. 55.
Jurisdiction of City Court. — A city court has jurisdiction
to foreclose a lien in favor of the proprietor of a sawmill on
the product of the mill, for work done on material furnished
by another, at least where the principal of the amount
claimed does not exceed the jurisdiction of the county
court. Chambliss v. Hawkins, 123 Ga. 361, 51 S. E. 337.
§ 3355. (§ 2806.) Liens on steamboats, etc. —
Every officer and employee, or guardian of any
employee, on any steamboat or other water-craft
engaged in the navigation of any river within the
border or forming the boundary of this State,
shall have a lien upon the said boat or craft, for
any debt, dues, wages, or demands that he may
have against the owner or lesseee of such boat or
craft, for perspnal services in connection with the
same, or for wood or provisions furnished the
same; which lien shall be superior to all liens but
tax liens, and such other liens as the claimant had
actual notice of before the debt was created. Acts
1873, p. 44.
For full treatment, see 8 Enc Dig. 800.
Editor's Note. — -This lien was first created by an act of
1841, and with various legislative modification, has come
down to its present form. It is analogous to the seaman's
lien in admiralty.
[911]
§ 3357. (§ 2808.) Liens of laborers at steam-
mills, etc. — Laborers about steam-mills and
other establishments mentioned in the preceding
section, shall have the same lien as is provided for
laborers in sections 3334 and 3335. Acts 1873, p.
45.
As to liens of laborers in general, see §§ 3334, 3335 and
cases there cited.
The proprietor of a saw-mill who contracts to saw timber
and to furnish for that purpose a mill and a fireman at a
stipulated price per day, such price to cover the rent of
the mill as well as his own labor and the labor of the fire-
man, does not acquire, a lien under this section. Jones v.
Newsome, 27 Ga. App. 386, 108 S. E- 558.
A laborer employed about a saw-mill with the knowledge
of the owner of lumber may enforce a lien under this sec-
tion against the lumber although he is employed by the
proprietor of the sawmill. McCook v. Brown, 28 Ga. App.
525, 112 S. E. 151.
Saw-mills Treated as Personalty. — All saw-mills, whether
they be in fact fixtures or not, are treated as personalty
§ 3358
LIENS OTHER THAN MORTGAGES
§ 3360
under this section. Empire Lumber Co. v. Kiser, 91 Ga.
643, 17 S. E. 972.
§ 3358. (§ 2809.) Liens for articles furnished
to sawmills. — All persons furnishing sawmills
with timber, logs, provisions, or any other thing
necessary to carry on the work of sawmills shall
have liens on said mills and their products, which
shall, as between themselves, rank according to
date, and the date of each shall be from the time
when the debt was created, and such liens shall
be superior to all liens but liens for taxes, liens
for labor, as provided for in sections 3334, 3335,
and 3357, and to all general liens of which they
have. actual notice before their debt was created,
to which excepted liens they shall be inferior.
Acts 1873, p. 45.
See 8 Enc. Dig. 794; 8 Cum. Dig. 240.
Strict Construction of Section. — This section is in deroga-
tion of the common-law, and therefore is to be strictly
construed. Hull & Co. v. Anderson Lumber Co., 17 Ga.
App. 40, 86 S. E. 257.
Property Covered by Lien. — This section does not provide
for a lien on any property except "sawmills and their
products." The word sawmill "does not include any de-
tached personalty such as vehicles, draft animals, etc."
Empire Lumber Co. v. Kiser, 91 Ga. 643, 644, 17 S. E- 972;
Hull & Co. v. Anderson Lumber Co., 17 Ga. App. 40, 86
S. E. 257.
The word "mill," comprehends all engines, boilers, ma-
chinery of every kind, and all hardware, implements, tools,
etc., connected with and used, or proper for use, in the mill
establishment. Empire Lumber Co. v. Kiser, 91 Ga. 643,
17 S. E. 972.
A sash and door factory is not a sawmill within this sec-
tion. In re Gosch, 121 Fed. 604.
Saw-Mill as Personalty. — All saw-mills, whether they be
in fact fixtures or not, are treated as personalty under this
section. Empire Lumber Co. v. Kiser, 91 Ga. 643, 17 S. E-
972.
In Whose Favor Lien Arises.— One who merely cuts and
hauls logs to a sawmill, and claims no title to such timber,
can not enforce a lien for furnishing supplies to a sawmill.
Trapp v. Watters, 6 Ga App. 480, 65 S. E. 306. See also,
Cook v. Bowden, 32 Ga. App. 500, 124 S. E. 61.
One in possession of land under bond for title who fur-
nishes a sawmill with logs cut from the land may fore-
close his lien; and the fact that the owner of the sawmill
has paid the purchase-price of the logs to the holder of
the legal title to the land, affords no defense to the fore-
closure of the lien. Guin v. Hilton, etc., Lumber Co., 6
Ga. App. 484, 65 S. E- 330.
Against Whom Lien Attaches — Stranger. — A lien under
this section will not attach as against the title of a third
person who is an entire stranger to the contract under
which the supplies are furnished. Tallent v. Hunter, 32
Ga. App. 656, 124 S. E. 361. See also, McCrimmon v. Na-
tional Bank, 25 Ga. App. 825, 105 S. E. 44.
Same — Vendor With Title Reserved. — A claim based on a
duly executed and recorded contract of sale reserving title
in the claimant can not be defeated by a lien for necessary
supplies furnished a sawmill, under this section. Tift v.
Moultrie Lumber Co., 1 Ga. App. 608, 57 S. E. 105-3.
Same — Mortgagee. — The lien of a mortgage given to se-
cure the purchase-money of a sawmill is not one of the
liens enumerated in this section as superior to the lien for
articles furnished sawmills, unless the holder of the latter
lien has actual notice or the existence of the same before
his debt is created. Bradley v. Cassels, 117 Ga. 517, 43 S.
E. 857.
Same — Owner of Timber. — Direct periodic payments by the
owner of the timber of wages to the laborers at the saw-
mill made to prevent a shutting down of the mill and ad-
vances in money made to the person operating the mill are
not such acts as would authorize any one dealing with the
person operating the mill to infer that the latter was act-
ing as agent for the owner of the lumber. Tallent v.
Hunter, 32 Ga. App. 656, 124 S. E. 361.
What May Be Furnished — Money. — Creditors furnishing
money to sawmills have no lien thereon under this section.
Dart v. Mayhew & Co., 60 Ga. 104.
Same — Family Supplies. — No lien arises against a sawmill
from furnishing to the owner of the mill money, or family
supplies. Slappey v. Charles, 7 Ga. App. 796, 68 S. E. 308.
Same — Standing Trees. — It is not intended by this section
to give a lien to the vendor of standing trees, though sold
[9
to be severed from the realty by the purchaser and con-
verted into timber or logs for his mill. Balkcom v. Em-
pire Lumber Co., 91 Ga. 651, 17 S. E. 1020, 44 Am. St. R.
58; Giles v. Gano, 102 Ga. 593, 27 S. E- 730; Loud v. Prit-
chett & Co., 104 Ga. 648, 652, 30 S. E. 870: Ray v. Schmidt
& Co., 7 Ga. App. 380, 66 S. E. 1035.
The lien provided for by this section applies to timber or
logs that have been severed from the soil, and does not
apply to standing trees, although sold to the purchaser to
be severed from the soil and converted into lumber for his
sawmill. Davis v. Cox, 13 Ga. App. 509, 79 S. E. 383.
Same — Tools and Oil. — One who furnishes tools, etc., not
ejusdem generis with timber, logs and provisions is not en-
titled to a lien under this section, but oil is included in the
word provisions. Balkcom v. Empire Lumber Co., 91 Ga.
651, 17 S. E. 1020; Filer, etc., Co. v. Empire Lumber Co.,
91 Ga. 657, 18 S. E- 359.
Same — Feed for Mules. — One who furnishes a sawmill
with corn, oats, hay, bran, etc., with which to feed the
mules of the owner of the mill used in carrying on the
work thereof, has a lien under this section. Empire Lumber
Co. v. Kiser, 91 Ga. 643, 17 S. E. 972.
Cutting Timber for the Mill-Owner Is Not Furnishing. —
There is no lien under this section for cutting timber belong-
ing to the mill -owner and for hauling and delivering the logs
at the mill, this work not being embraced in the terms "fur-
nishing saw-mills with timber, logs," etc. Balkcom v. Em-
pire Lumber Co., 91 Ga. 651, 17 S. E- 1020.
Estoppel of Owner. — When the owner in giving orders for
articles represents to the seller that they are wanted as
supplies for his sawmill he will be estopped by the repre-
sentation, and cannot set up in resistance to the lien
claimed that some of the provisions were not in fact so
applied. Empire Lumber Co. v. Kiser, 91 Ga. 643, 17 S. E.
972.
Sufficiency of Affidavit. — An affidavit to foreclose a lien,
under this section which alleges that provisions, etc., were
furnished "to the saw-mill of" B. instead of to B., is suffi-
cient. Bennett & Co. v. Gray, 82 Ga. 592, 9 S. E. 469.
§ 3359. Lien for hauling lumber. — All .persons
hauling stocks, logs, or lumlber with teams for
another person shall have a lien against the per-
sonalty so hauled by them, to the extent of the
amount of the indebtedness if by contract, and to
the extent of the value of the services so ren-
dered if the price to be paid for the same is not
agreed upon. Acts 1901, p. 80.
See 8 Enc. Dig. 794; 8 Cum. Dig. 241.
Against Whom Lien Attaches — In General. — The lien un-
der this section does not arise unless the logs are the
property of the employer. Williams v. Herrington, 12 Ga.
App. 76, 76 S. E. 757.
Same — Bona Fide Purchaser. — The lien of a laborer upon
logs hauled by him for another does not exist against a
bona fide purchaser without notice of the lien, until it is
reduced to execution and levy. Williams v. Herrington, 12
Ga. App. 76, 76 S. E. 757.
Same — Acceptance of Benefits. — The lien under this sec-
tion can not be defeated by one who has knowledge of the
performance of the labor and who accepts the benefit there-
of, otherwise than by proof that the lien was waived or has
been discharged by payment. Sattes, etc., Lumber Co. v.
Hales, 11 Ga. App. 569, 75 S. E. 898.
Where Work Done by Others. — This section creates a lien
against property of the kind specified in the act, although
the person claiming the lien may have employed laborers
to do the actual physical work incident to the hauling.
Bruton v. Beasley, 135 Ga. 412, 69 S. E. 561.
§ 3360. (§ 2810.) Liens of innkeepers, etc. —
Innkeepers, boarding house keepers, carriers,
and livery-stable keepers shall have a lien for
their dues on the baggage of their guests, on the
goods and articles transported, and on the stock
placed in their care for keeping, which shall be
superior to other liens, except liens for taxes,
special liens of landlords for rent, liens of laborers,
and all general liens of which they had actual no-
tice before the property claimed to be subject to
lien came into their control, to which excepted
liens they shall be inferior. Acts 1873, p. 45.
For full treatment, see 8 Enc. Dig. 801, 8 Cum. Dig. 245,.
7 Enc. Dig. 521. See also as to the lien declared in this-
12]
§ 33G1
LIENS OTHER THAN MORTGAGES
§ 3364
section, §§ 2741, 3513, 3515; as to satisfaction, see §§ 3368,
3530, 3366.
Question of Fact.— Whether one is a livery stableman
within this section is a question of fact. Elliott v. Hodgson,
133 Ga. 209, 65 S. E. 405.
What Included. — The lien under this section includes not
only the actual feeding of the horse but also such charges
as are directly connected with his keeping and as are
naturally in the line of a livery-stable keeper's business.
Elliott v. Hodgson, 133 Ga. 209, 65 S. E. 405.
Cannot Purchase.— Where a livery stable keeper sells in
accordance with § 3530, he can not become the purchaser.
Witkowski v. Stubbs, 91 Ga. 440, 17 S. E. 609.
§ 3361. (§ 2811.) Liens on get of stallions, etc.
— The owner or keeper of any stallion, jack, or
blooded or imported bull or Iboar in this State
shall have a lien upon the get thereof, for the
service of such stallion, jack, or blooded or im-
ported bull or boar, for the period of one year
from the birth of such get, which lien shall be
superior to all other liens, except the lien for
taxes. The lien herein provided, for shall not be-
come operative unless the same be recorded in the
office of the clerk of the superior court of the
county wherein the owner of the mother resides,
within six months after the performance of the
service; and said clerk shall keep a book in which
all such liens are to be recorded, and said clerk
shall receive twenty-five cents each for record-
ing such lien: Provided, said animals shall be
kept by the owners thereof inclosed in their own
pasture or otherwise. Acts 1884-5, p. 147;
1882-3, p. 131.
Titles — The owner of a stallion or jack does not obtain
title to the get thereof, for the service of the animal, but
has merely a lien thereon. Strickland v. Smith, 17 Ga. App.
505, 87 S. E. 718.
Fees of Clerk. — As to salary of clerk and duty to pay
over fees collected to county or state, for all counties hav-
ing 200,000 population or more, see, § 6017(5) ; for all coun-
ties having between 44,000 and 60,000 and from 70,000 to
150,000 population, see § 6017(12); counties of from 60,000 to
70,000 population, see § 6017(25).
§ 3362. (§ 2812.) Liens of pawnees, etc. — Pawn-
ees, factors, bailees, and acceptors shall have
such liens as are in this Code designated. Such
liens shall fee inferior to liens for taxes, liens of
which such persons had actual notice before be-
coming creditors, special liens for rent, liens of
laborers, liens or mortgages duly recorded, judg-
ment liens, and. other general liens reduced to
execution and levied. Acts 1872, p. 45; 1880-1,
p. 63.
Cross References. — See 6 Enc. Dig. 146, 6 Cum. Dig. 115,
10 Enc. Dig. 496, 9 Cum. Dig. 499. As to pledges, in gen-
see § 3527 et seq. ; as to factor's liens, see § 3502; as to
bailee's lien see § 3491; as to lien of acceptor, see § 4278;
as to liens of laundrymen, cleaners, dyers, see § 3336; as
to satisfaction of pawnee's lien, see §§ 3368, 3530, 3366.
A warehouseman's lien for storage charges on property
deposited with him is not superior to the exemption rights
established by setting it apart as homestead property al-
though it be set apart after the accrual of the' storage
charges. Morrow Transfer, etc., Co. v. Whitson, 20 Ga.
App. 149, 92 S. E. 761.
§ 3363. (§ 2813.) Liens of depositaries. — De-
positaries shall have such liens as are prescribed
in this Code, and shall, as to other liens, occupy
the same position as mechanics. The liens men-
tioned in this and the preceding section shall be
lost iby a surrender, to the debtor, of the prop-
erty on which the lien is claimed, and they shall
rank with each other, and with other liens not
specified in this and the preceding section, ac-
cording to date. Acts 1873, p. 45.
As to this lien see § 3501; as to sale by depository see §
2917.
§ 3364. (§ 2814.) Lien of attorneys at law.
1. Attorneys at law shall have a lien on all pa-
pers and money of their clients in their posses-
sion, for services rendered to them, and may re-
tain such papers until said claims are satisfied,
and may apply such money to the satisfaction of
said claims.
For full treatment of the subject, see 2 Enc. Dig. 82 et
seq., 2 Cum. Dig. 392 et seq. As to claim cases and gar-
nishment, see §§ 3374, 5290; as to satisfaction, see §§ 3368,
3530, 3366.
2. Upon suits, judgments, and decrees for
money, they shall have a lien superior to all liens
but tax liens, and no person shall be at liberty to
satisfy said suit, judgment, or decree until the lien
or claim of the attorney for his fees is fully sat-
isfied; and attorneys at law shall have the same
right and power over said, suits, judgments, and
decrees, to enforce their liens, as their clients had
or may have for the amount due thereon to them.
Editor's Note. — A history of the provisions concerning
settlement between the parties as affecting the attorney's
lien will be found in Winslow Bros. Co. v. Murphy, 139 Ga.
231, 77 S. E. 25. The rules governing this matter are fairly
definite although seldom clearly stated.
Settlement between Parties — Before Suit. — Since the at-
torney's lien is only on the suit or judgment and not on the
cause of action if there is a settlement before suit brought
there is no lien, and the attorney can not prosecute the
suit for his fees. Winslow Bros. Co. v. Murphy, 139 Ga.
231, 77 S. E. 25; Georgia R. etc., Co. v. Crosby, 12 Ga. App.
750, 78 S. E- 612.
Notice to the opposing party before suit brought will not
make him liable for the attorney's fees. Winslow Bros.
Co. v. Murphy, 139 Ga. 231, 77 S. E. 25.
Settlement after Suit Filed — In General. — The attorney for
a defendant had a lien upon the defendant's interest in a
pending suit, which can not be defeated by any settlement,
made without his consent, after the suit was filed. Pay-
ton v. Wheeler, 13 Ga. App. 326, 79 S. E. 81.
"A cause of action can be settled by the parties before a
suit thereon is filed, but after the suit has been filed, the
suit and cause of action become one in substance, and nei-
ther the suit nor the cause of action thereafter can be set-
tled so as to defeat the lien of the attorney." Georgia R.,
etc., Co. v. Crosby, 12 Ga. App. 750, 752, 78 S. E. 612.
Same — Defendant Must Have Notice. — The lien provided
in this section does not arise, as against the defendant un-
til there has been either service of process, or actual no-
tice of the filing of the petition. It follows, therefore, that
where a settlement is had between the plaintiff and the de-
fendant, and the latter is ignorant that the petition has
been filed at the time of the settlement, such settlement
would be a bar to a recovery by the plaintiff of fees due by
him under a contract with his attorneys. Florida Cent.,
etc., R., Co. v. Ragan, 104 Ga. 353, 30 S. E. 745; Lumpkin
v. Louisville, etc., R. Co., 136 Ga. 135, 70 S. E. 1101.
Under this section the only notice necessary to a defendant
in a pending action of the lien of the plaintiff's attorney on
the suit and its proceeds for his fees in that case, is knowl-
edge of the fact that the suit has been instituted and is
pending. Little v. Sexton, 89 Ga. 411, 15 S. E. 490.
Same — Effect. — A settlement made directly with the plain-
tiff, will leave the defendant liable to a recovery for the
benefit of the attorney to the extent of his fees. Little v.
Sexton, 89 Ga. 411, 15 S. E. 490.
Where suit is brought by an attorney at law for his clients
as payees, against the maker of a promissory note, for
principal, interest, attorney's fees, and certain equitable re-
lief, and before the trial of the case the parties settle it
among themselves, without the knowledge or consent of the
plaintiffs' attorney, who is not paid his fees, he may prose-
cute the original suit for the purpose of recovering his fees.
Glenville Invest. Co. v. Jordan, 144 Ga. 14, 85 S. E- 1049.
Client Must Have Valid Cause of Action. — There can be no
recovery in behalf of the attorney, unless the evidence is
of such a character as would have authorized a recovery by
the client if the suit were still proceeding for his benefit.
Atlanta R., etc., Co. v. Owens, 119 Ga. 833, 47 S. E. 213.
Same — Suit Dismissed. — If, pending the suit the plaintiff
and defendant compromise and settle their differences, and
upon the trial a nonsuit is awarded, the suit thus com-
menced is thereby ended and the attorney's lien is ex-
[913]
§ 3364
FORECLOSURE OF LIENS ON REAL ESTATE
§ 3365
tinguished. Brown v. Georgia, etc., R. Co., 101 Ga. 80, 28
S. E. 634.
"If for any reason the suit is finally disposed of by opera-
tion of law, or by a ruling of the court thereon, the lien of
the attorney is necessarily discharged. We think this is
what is meant by the Supreme Court in the case of Brown
v. Georgia, etc., R. Co., 101 Ga. 80, 28 S. E- 634." Georgia
R., etc., Co. v. Crosby, 12 Ga. App. 750, 752, 78 S. E- 612.
Certain Cases Not within Attorney's Control. — In an ac-
tion for breach of promise to marry after marriage of plain-
tiff and defendant, counsel for plaintiff cannot prosecute the
action for fees. Harris v. Tisom, 63 Ga. 629.
Under this section attorney can not prevent the dis-
missal by the plaintiff of a suit for divorce and alimony.
Keefer v. Keefer, 140 Ga. 18, 78 S. E. 462.
Agreement of Client Not Binding on Attorney.— A judg-
ment creditor can not defend against a levy to enforce an
attorney's lien on the ground that the judgment creditor
had agreed, for value, to give indulgence. Tarver v.
Tarver, 53 Ga. 43.
To What Lien Attaches. — The lien under this section at-
taches to the fruits of the labor and skill of the attorney,
whether realized by judgment or decree, or by virtue of an
award, or in any other way, as long as they are the result
of his exertions. Wooten v. Denmark, 85 Ga. 578, 579, 11 S.
E- 861.
Interest of Attorney Not Subject to Garnishment. — A debt
due by an attorney can not be collected by process of gar-
nishment served upon a debtor of one of his clients, al-
though the attorney may, as a result of his services, have a
contingent interest in the debt to the client. Modlin v.
Smith, 13 Ga. App. 259, 79 S. E- 82.
When Lien Arises. — The mere engagement by a prospec-
tive suitor of an attorney at law upon a contingent fee,
does not give rise to a lien 'for fees in favor of the latter
upon the cause of action respecting which he is employed.
Brown v. Georgia, etc., R. Co., 101 Ga. 80, 28 S. E. 634.
Waiver and Estoppel. — -"An attorney is not obliged to in-
sist upon his lien or his right to collect the judgment or
execution. He may waive it or submit to a discharge."
Roland v. Roland, 139 Ga. 825, 833, 78 S. E. 249.
Where the contract between attorney and client contem-
plates in term a settlement the attorney impliedly consents
to the settlement and can not enforce his lien against the
opposing party. Gower v. Roberts, 32 Ga. App. 164, 122 S.
E. 796.
Where an attorney directs that judgment be entered in
favor of garnishor of his client in a suit against a debtor
he is estopped from asserting a lien against the debtor who
has paid the judgment. Watters v. Wells, 7 Ga. App. 778,
68 S. E. 450.
3. Upon all suits for the recovery of real or per-
sonal property, and upon all judgments or de-
crees for the recovery of the same, attorneys at
law shall have a lien on the property recovered, for
their fees, superior to all liens but liens for taxes,
which may be enforced by said attorneys at law,
or their lawful representatives, as liens on per-
sonal and real estate, by mortgage and foreclos-
ure, and the property recovered shall remain sub-
ject to said liens, unless transferred to bona fide
purchasers without notice.
When Lien Attaches. — "The lien on the property is not
perfect until after recovery; but there is a lien on the suit
which is perfect at once, and the lien on the property is in-
choate." Twiggs v. Chambers, 56 Ga. 279, 282. See also,
Burgin & Son's Glass Co. v. Mclntire, 7 Ga. App. 755, 758,
68 S. E. 490; Lovett v. Moore, 98 Ga. 158, 26 S. E. 498.
A fund impounded for distribution may be subjected to
the lien of the attorney who recovered the fund. Stewart
v. McDonald, 147 Ga. 158, 159, 93 S. E. 86.
Application for Homestead Not within Section. — An at-
torney prosecuting an application to set apart a homestead
of realty has no lien on the property if the application is
withdrawn or dismissed, nor can he prosecute it further.
Haygood v. Dannenberg Co., 102 Ga. 24, 29 S. E. 293.
Obtaining Restraining Order. — An attorney is not entitled
to a lien upon land for obtaining a restraining order to pre-
vent sale thereof when such order was subsequently dis-
solved though the delay enabled the client to arrange to
prevent the sale. Hodnett v. Bonner, 107 Ga. 452, 33 S. E.
416.
May Be Enforced on Part of Property. — An attorney's hen
may, as against the liens of other creditors, be enforced
against a portion of the property covered thereby, and
satisfied out of its proceeds, although he has permitted
other portions of such property to be sold. Coleman v.
Austin, 99 Ga. 629, 25 S. E- 763.
Power of Plaintiff to Dismiss. — A plaintiff in error can
not withdraw a writ of error over the objection of his
counsel, when it appears that the litigation is such that it
.would, if successful, result in a recovery of property on
which counsel would have a lien for fees earned in the case.
Walker v. Equitable Mortg. Co., 114 Ga. 862, 40 S. E. 1010.
In an action for property, if the fee of plaintiff's attorney
be payable, by special contract, out of the proceeds of the
suit, the attorney has an inchoate lien upon the property
for his fee, as soon as the action is commenced, and the client
has no right to defeat such lien by dismissing the action
before trial, over the attorney's objection, without first pay-
ing the fee. Twiggs v. Chambers, 56 Ga. 279.
Lis Pendens as Notice. — After the recovery of land sued
for the plaintiff's attorneys may foreclose their liens and it
is not necessary that a vendee pendente lite should have
been given notice of such liens, the pendency of the suit
in ejectment constituting such notice. Suwannee Turpentine
Co. v. Baxter & Co., 109 Ga. 597, 35 S. E. 142.
Where an attorney defends a claim against his client's
property, and pending the litigation the client transfers the
property to a third person, the transferee takes subject to
the attorney's lien under this section. Lovett v. Moore, 98
Ga. 158, 26 S. E. 498.
After attorneys had filed a bill to enforce their lien on
realty one who purchased the land did so with notice. Wil-
son v. Wright, 72 Ga. 848.
Purchase by Client on Judgment of Foreclosure. — Where
an attorney at law, under employment, obtained judgment
of foreclosure and caused execution to be issued and levied
on land, which was sold, his client becoming the purchaser
and taking the title, no money being paid, but the price of
the land being entered as a credit upon the execution, the
ien of the attorney for his fee attached to the land and
could be foreclosed thereon. Wooten v. Denmark, 85 Ga.
578, 11 S. E- 861.
4. If an attorney at law shall file, as provided in
section 3353, his assertion claiming lien on prop-
erty recovered on suit instituted by him, within
thirty days after a recovery of the same, then his
lien shall bind all persons.
Filing is not essential to the validity of the lien under
this section as between the attorney and his client, or as
between him and other creditors of the latter. Coleman v.
Austin, 99 Ga. 629, 25 S. E. 763; Burgin & Sons Glass Co.
v. Mclntire, 7 Ga. App. 755, 758, 68 S. E- 490.
5. The same liens and modes of enforcement
thereof which are allowed by this section, or by
preceding taws, to attorneys at law who are em-
ployed to sue for any property, upon the property
recovered, shall be equally allowed to attorneys
at law employed and serving in defense against
such suits in case the d,efense is successful.
Successful Defense a Recovery. — An attorney at law who
successfully defends an action for the recovery of prop-
erty, real or personal, recovers the same within the meaning
of this section. Lovett v. Moore, 98 Ga. 158, 26 S. E- 498.
An attorney who successfully resists a mechanics lien is
entitled to a lien under this section. Fry v. Calder, 74 Ga.
7.
6. This section shall not affect the rights of
attorneys under sections 3374 and 5290, and de-
cisions of the Supreme Court thereon. Acts 1873,
p. 46; 1880-1, p. 63.
ARTICLE 2.
Foreclosure of Liens on Real Estate.
§ 3365. (§ 2815.) Enforcement of liens on
realty. — Liens on real property, provided for in
this Chapter, and which are not mortgages, shall
be foreclosed, when not otherwise provided, as
follows:
Remedy Cumulative. — The remedy given by this section
and §§ 3334 and 3366 is not exclusive, and does not deprive
i laborer of his common-law right to sue upon a contract,
but is merely cumulative of that right. Jennings v. Lan-
ham, 19 Ga. App. 79, 90 S. E. 1038.
1. By a compliance with his contract by the
[914]
j 3366
FORECLOSURE OF LIENS ON PERSONAL PROPERTY
§ 3366
>erson claiming the lien, and recording- his claim,
tnd the commencement of suit therefor, accord-
ng to the provisions and requirements of section
1353.
Cross References. — See § 3353. See, generally, 8 Enc. Dig.
85, 8 Cum. Dig. 228; 9 Enc. Dig. 326, 8 Cum. Dig. 575.
Editor's Note. — The court calls attention to the great con-
usion and need of legislative action in regard to the en-
orcement of liens, in Lombard v. Young Men's Library
fund, 73 Ga. 322, 324.
Laborer's Lien on Realty. — A laborer's lien upon realty
an only be foreclosed by action under this section not by
ffidavit. Allred v. Haile, 84 Ga. 570, 10 S. E. 1095.
A laborer may enforce his lien on the personalty of his
mployer in one action and on the realty in another. Love
•. Cox, 68 Ga. 269.
2. In declaring for such debt or claim the
:laimant of the lien must set forth his lien, and
he premises on which he claims it; and if the lien
s allowed, the verdict shall set it forth, and the
udgment and execution be awarded accordingly.
Judgment Where No Jury. — When in a proceeding under
his section, the judge awards judgment without a jury,
he judgment so awarded should contain all that the ver-
ict, of which it is a substitute, should show. Schofield &
Ion v. Stout, 59 Ga. 537, 540.
General Judgment for Definite Amount. — Where a petition
ontained only a prayer that a lien be set up and established,
verdict finding a designated amount in the plaintiff's
ivor was unauthorized. Ryals v. Smith, 102 Ga. 768, 29 S.
I 968.
Verdict for Lien on Part of Railroad. — A verdict and judg-
tient which attempt to set up and enforce a lien upon a
pecified portion of a railroad are void upon their face, so
ar as the contractor's special lien is concerned. Farmers'
,oan, etc., Co. v. Candler, 87 Ga. 241, 13 S. E. 560.
Particularity of Description.— That a laborer desires to
laim a general lien on all the property of his employer and
s unable to describe such property specifically, does not
irevent him from asserting his lien and enforcing it as
uch. He need not do an impossible thing. Love v. Cox,
8 Ga. 269.
3. If any real property on which there is a Hen
)€ sold by any process from the courts of this
state, the purchaser shall obtain the full title, and
he lien shall attach to the proceeds of the sale,
upon notice by the party claiming the lien to the
)fficer to hold the money until the next session of
he superior court for that purpose.
Sufficiency of Notice. — Any writing importing an assertion
>f the lien, which comes to the hands of the officer at or
>efore the sale, is a sufficient notice to hold up the money,
f the purpose of a more regular and direct notice is ac-
:omplished. Loudon v. Coleman, 59 Ga. 653.
4. If the claim of lien be disputed by either
)laintiff or defendant in the process or decree on
vhich the money was raised, an issue shall be or-
lered and tried as in other causes; and if it be de-
:ermined against the claimant, he shall pay such
iamages, not exceeding twenty per cent., as the
iury may assess, with interest from the date of
:he notice to retain, and costs.
A county court has jurisdiction to render a judgment
foreclosing a mechanic's lien on realty where the amount
s within its jurisdiction. Wheatley v. Blalock, 82 Ga. 406,
) S. E. 168.
5. The delivery of possession by the person
claiming the lien shall not affect his lien. Acts
1873, p. 46.
ARTICLE 3.
Foreclosure of Liens on Personal Property.
§ 3366. (§ 2816.) Enforcement of liens on per-
sonalty.— Liens on personal property, not mort-
gages, when not otherwise provided, shall be
[9
foreclosed in accordance with the following pro-
visions:
Remedy Cumulative. — The remedy given by this section
and §§ 3334 and 3365 is not exclusive, and does not deprive
a laborer of his common-law right to sue Upon a contract,
but is merely cumulative of that right. Jennings v. Lan-
ham. 19 Ga. App. 79, 90 S. E. 1038.
1. There must be a demand on the owner,
agent or lessee of the property for payment, and
a refusal to pay, and such demand and refusal
must be averred. If, however, no such demand
can be made, by reason of the absence, from the
county of his residence, of the party creating the
lien on personal property, by reason of removal
from the same, albsconding from the same, or
other reasons showing an intention to be absent
to defeat such demand, then the party holding
such lien shall not be obliged to make a demand
or affidavit thereof, but may foreclose without
such demand, by stating, on oath, why no such
demand was made.
Cross References. — See. generally, 8 Enc. Dig. 785; 8 Cum.
Dig. 228; 9 Enc. Dig. 326; 8 Cum. Dig. 575; 1 Enc. Dig.
310; 1 Cum. Dig. 351.
Time of Demand. — A demand of payment made on the day
when payment is due is sufficient, as being made after th<-
debt becomes due. Favors v. Johnson, 79 Ga. 553, 4 S. E
925.
On a proceeding to foreclose a lien on personalty, a fail-
ure to show a demand within twelve months after the claim
fell due did not make the process a nullity, but rendered it
voidable. Gladden v. Cobb, 73 Ga. 235.
When Necessary. — Since a landlord's special lien on crops
for supplies furnished "may be foreclosed before the debt is
due, if the tenant is removing or seeking to remove his
crops from the premises," a demand for payment is not,
in such a case, an essential prerequisite to the right to
foreclose. Vaughn v. Strickland, 108 Ga. 659, 660, 34 S. E-
192.
No demand is necessary where the tenant is out of the
state. Hopkins v. Pedrick, 75 Ga. 706, 709.
In order for a depositary for hire (Civil Code, §§ 3494,
3501) to foreclose his lien under the Civil Code, § 3366, it is
incumbent upon him to allege in the affidavit made for that
purpose, among other things, that he made demand upon
the depositor for payment after the amount claimed became
due. Where an attempted foreclosure was made in which
the affidavit omitted such averment, a sheriff's sale made
thereunder was without authority of law and void. Vanclal-
sem v. Caldwell, 33 Ga. App. 88," 125 S. E- 716.
2. It must be prosecuted, within one year after
the debt becomes due.
Nature of Condition. — "The requirement of action within
12 months is really not a limitation, but a statutory condi-
tion of the existence of the lien which must be complied
with." Birmingham Trust, etc., Co. v. Atlanta, etc., R.
Co., 287 Fed. 561, 564.
When Applicable. — The limitation of one year in this sec-
tion does not apply to the prosecution and enforcement by
distress warrant of a special or general claim or demand by
a landlord for rent. Jones v. Blackwelder, 16 Ga. App. 345,
85 S. E. 356.
3. The person prosecuting such lien, either for
himself or as guardian, administrator, executor,
or trustee, must, by himself, agent, or attorney,
make affidavit showing all the facts necessary to
constitute a lien under this Code, and the amount
claimed to be due. If the amount claimed is un-
der one hundred dollars, the application may be
made to a justice of the peace, who may take all
the other steps hereinafter prescribed, as in other
cases in his court.
Necessary Allegations — Demand. — It is necessary that the
affidavit of foreclosure should show affirmatively that de-
mand for payment was made after the debt became due.
Central R., etc., Co. v. Sawyer, 78 Ga. 784, 3 S. E. 629;
Anderson v. Beard, 54 Ga. 137, 138.
If the affidavit alleges demand of payment from the gen
15]
§ 3366
FORECLOSURE OF LIENS ON PERSONAL PROPERTY
§ 3366
eral superintendent of a company this is sufficient. Hobbs
v. Lumber, etc., Co., 74 Ga. 371.
When the affidavit upon which a mechanic's lien on per-
sonalty was foreclosed, failed to state that demand for pay-
ment of the debt was made on the owner of the property,
and payment refused, and the member of the firm of me-
chanics who made such affidavit became the purchaser, he
obtained no title. Erskine v. Wiggins, 58 Ga. 186, 187.
Same — Completion of Contract. — Completion of the con-
tract need not be alleged or proved where the defendant
has waived or prevented completion. Haralson v. Speer, 1
Ga. App. 573, 58 S. E. 142.
Same — Description of Property. — It is not necessary, in an
affidavit to foreclose a landlord's lien for supplies _ fur-
nished, to set out the property on which the lien is claimed.
Execution is to be issued against the property subject to
the lien; and the law specifies that the property so sub-
ject is the crops raised during the year when the supplies
were furnished. Ware v. Blalock, 72 Ga. 804.
The affidavit, under this section, to foreclose a general
laborer's lien, need not specify any particular items or ar-
ticles of property. Allred v. Haile, 84 Ga. 570, 10 S. E- 1095.
That a laborer desires to claim a general lien on all the
property of his employer and is unable to describe such
property specifically, does not prevent him from asserting
his lien and enforcing it as such. He need not do an im-
possible thing. Love v. Cox, 68 Ga. 269.
Jurisdiction of Justice. — Where the amount claimed exceeds
$100, execution issued by a justice is void. Slaughter v.
Manning, 11 Ga. App. 650, 75 S. E. 1059.
In the foreclosure of liens, a justice's court has no juris-
diction outside of its district; and if it takes jurisdiction to
foreclose a landlord's lien, it must be either in the district
where the defendant resides or where he may have prop-
erty. Jones v. Wylie, 82 Ga. 745, 9 S. E- 614.
Effect of Void Affidavit.— If the affidavit is void, as
where no oath was in fact taken, a sale made in pursuance
thereof is void. Bertha Mineral Co. v. Buie, 27 Ga. App.
660, 109 S. S. 539. See also Bryan v. Madison Supply Co.,
135 Ga. 171, 68 S. E. 1106.
Necessity of Foreclosure. — "The law does not enable the
parties to dispense with foreclosure, and settle up in their
own way to the prejudice of other lienors." Stallings v.
Harrold, Johnson & Co., 60 Ga. 478, 481.
Liens for rent are enforced by distress and not under this
section. Colclough & Co. v. Mathis, 79 Ga. 394.
General liens for supplies (§ 3348) are foreclosed under
this section, and when so foreclosed, are equivalent to com-
mon-law distress. Turner v. Sitton, 160 Ga. 215, 127 S. E-
847.
Saw-Mill is Personalty.— All saw-mills, whether they be
in fact fixtures or not, are treated as personalty under this
section. Empire Lumber Co. v. Kiser, 91 Ga. 643, 17 S. E-
972.
Applied. Sufficiency of affidavit, Moody v. Travis, 76 Ga.
832; Jurisdiction of justice, Gray v. Joiner, 127 Ga. 544, 56
S. E. 752.
4. Upon such affidavit being filed with the
clerk, it shall be the duty of the clerk of the su-
perior court or the justice of the peace, if in his
court, to issue an execution instanter against the
person owing the debt, and also against the
property on which the lien is claimed, or which is
subject to said lien, for the amount sworn to, and
the costs, which execution, when issued, shall be
levied by any sheriff of this State, or bailiff if the
amount be less than one hundred dollars, on such
property subject to said lien, under the same
rules and regulations as other levies and sales un-
der execution.
When Affidavit Filed. — Where affidavits to foreclose la-
borers' liens were made and handed to the clerk for him to
issue executions thereon, they were in fact filed in his of-
fice. Floyd v. Chess-Carley Co., 76 Ga. 752.
No Demurrer to Affidavit. — Where no counter -affidavit has
been filed as provided by law, there is no case in court to
be tried, and a demurrer to the affidavit to foreclose a la-
borer's lien is properly overruled. Harvey v. Johnson, 28
Ga. App. 287, 111 S. E. 576.
Execution — In Whose Favor. — Although the affidavit in
proceedings under this section be made by the agent of the
plaintiff, the execution should issue in favor of the
plaintiff. Mullins v. Dowling, 20 Ga. App. 138, 92 S. E. 763.
Same — Immature Crops. — An affidavit commanding the of-
ficer to levy on immature crops is not void, nor does a re-
turn thereon showing an attempt to levy on such crops
[916]
render a levy on other property at the same time void.
Faircloth v. Webb, 125 Ga. 230, 53 S. E. 592.
Same — Final Process. — An execution issued upon the fore-
closure of a laborer's lien is, as to a claimant of property
levied on thereunder, final process, and upon the trial of a
claim case arising upon the levy of such an execution, it is
not necessary for the plaintiff to prove either the amount
of his debt, or the existence of his lien. Allen v. Middle-
ton, 99 Ga. 758, 27 S. E. 752.
The foreclosure of a landlord's lien is final unless an is-
suable counterclaim is filed, which must either deny the
existence of the lien or show that the amount claimed is
too large. Boyce v. Day, 3 Ga. App. 275, 59 S. E. 930.
Jurisdiction of Courts. — The statutory provision that the
judges of the county courts in this State shall have juris-
diction to "foreclose mortgages on personal property and
liens" includes power of the judge to take the statutory
affidavit and issue execution as provided in this section.
Gunn v. Johnson & Co., 154 Ga. 568, 114 S. E. 709.
A city court has jurisdiction to foreclose a lien in favor
of the proprietor of a saw-mill on the product of the mill,
for work done on material furnished by another, at least
where the principal of the amount claimed does not exceed
the jurisdiction of the county court. Chambliss v. Hawkins,
123 Ga. 361, 51 S. E. 337.
Garnishment proceedings can not be predicated upon the
foreclosure of a lien under this section. Lane v. Brinson,
12 Ga. App. 760, 78 S. E. 725; Weston v. Beverly, 10 Ga.
App. 261, 73 S. E. 404.
Cited in Moseman v. Comer, 160 Ga. 106, 127 S. E- 406.
5. Affidavits may be made before any officer
authorized to administer an oath.
Sufficiency. — Where, in an effort to foreclose, the person
asserting the lien procured a justice of the peace to "write
out the lien and the affidavit," and then "signed," and the
justice of the peace "attested" his signature without the
administration of any oath, the paper so executed did not
constitute a valid affidavit. Bryan v. Madison Supply Co.,
135 Ga. 171, 68 S. E. 1106.
6. If the person defendant in such execution, or
any creditor of such defendant, contests the
amount or justice of the claim, or the existence
of such lien, he may file his affidavit of the fact,
setting forth the ground of such denial, which af-
fidavit shall form an issue to be returned to the
court and tried as other causes.
What Counter- Affidavit Must Contain. — A counter-affi-
davit interposed to the foreclosure of a lien, which in terms
neither admits nor denies the indebtedness set forth in the
affidavit of foreclosure, does not make an issue which can
be tried, and should be dismissed on motion. Murphey v.
McGough, 105 Ga. 816, 31 S. E. 757.
A counter-affidavit which does not deny the plaintiff's
right to the lien, but simply denies that defendant is in-
debted in the sum sued for, is insufficient. Misenheimer
v. Gainey, 11 Ga. App. 509, 513, 75 S. E. 844. See also,
Boyce v. Day, 3 Ga. App. 275, 59 S. E. 930.
Effect of Dismissal. — When a counter-affidavit to the fore-
closure of a lien has been dismissed on motion of the plain-
tiff, the case passes out of the jurisdiction of the court, and
the process is remanded to the levying officer by operation
of law. Murphey v. McGough, 105 Ga. 816, 31 S. E. 757.
Amendment and Second Counter-Affidavit. — A counter-
affidavit, which was the foundation of a legal proceeding,
cannot be amended after it has been returned into court,
either by the filing of a new affidavit or otherwise, so as to
change the issue thereby presented. Jackson, Judge, dis-
senting. Story v. Flournoy, etc., Co., 55 Ga. 56, 57.
A second counter-affidavit to an execution based on the
foreclosure of a factor's lien cannot be filed without an
allegation that the facts therein set forth were unknown to
the defendant at the time the first was filed. Story v.
Flournoy, etc., Co., 55 Ga. 56, 57.
No Waiver of Defects in Affidavit. — Filing a counter -affi-
davit is not a waiver of a failure to allege demand. Cen-
tral, R., etc., Co. v. Sawyer, 78 Ga. 784, 3 S. E. 629.
The superintendent of banks as receiver of a creditor may
contest the foreclosure of a lien under this section. Ben-
nett v. Green, 156 Ga. 572, 573, 119 S. E. 620.
Filing Condition Precedent to Final. — This section contem-
plates that the counter-affidavit to the foreclosure of a
laborer's lien should be filed with the levying officer as a
condition precedent to his returning the case to court for
trial. Harvey v. Johnson, 28 Ga. App. 287, 111 S. E. 576.
When Issue Triable. — The issue raised by the filing of an
affidavit of a contesting creditor under this section is triable
§ 3367
MISCELLANEOUS PROVISIONS
§ 3372
at the term of court succeeding the filing of the contesting
affidavit. Martin v. Nichols, 121 Ga. 506, 49 S. B. 613.
Set-Offs Not Allowable. — In a proceeding under this sec-
tion, matters in the nature of a set-off, not arising out of
the transaction on which the lien is based should be ex-
cluded. White v. Streed, 25 Ga. App. 353, 103 S. E. 172.
No Personal Judgment. — When an issue made by the
debtor in resistance to a summary execution sued out to
enforce a lien upon personal property, is found in favor of
the creditor, the latter is not entitled to a general judg-
ment, but only to a special judgment declaring the existence
md amount of the lien, and providing for its enforcement
against the specific property; and this is so, whether the
property has been replevied or not. Triest v. Watts &
Bros., 58 Ga. 73. See also, Argo v. Fields, 112 Ga. 677, 37
3. E- 995.
The proprietor of a saw-mill who institutes a proceeding
;o foreclose his lien on material furnished by another can
lot, upon a failure to prove a substantial compliance with
lis contract, recover a verdict in that proceeding for the
/alue of his services. Hawkins v. Chambliss, 116 Ga. 813,
13 S. E- 55.
Effect of Equitable Plea. — Where a defendant in a pro-
;eeding under this section files an equitable plea praying a
general accounting the proceeding becomes an equitable
me and the defendant is not entitled to a jury trial. Mac-
kenzie v. Flannery & Co., 90 Ga. 590, 16 S. F. 710.
Counter-Affidavit as Demurrer. — The counter-affidavit can
lot supply the office of a demurrer. Boyce v. Day, 3 Ga.
\pp. 275, 59 S. E. 930.
Applied in Hull & Co. v. Anderson Eumber Co., 17 Ga.
\pp. 40, 41, 86 S. F. 257.
7. If only a part of the amount claimed is de-
lied, the amount admitted to be due must be paid
before the affidavit shall be received by the of-
icer.
Compare, as to affidavit of illegality, § 6287.
8. The defendant may replevy the property by
jiving bond and security in double the amount
:laimed, for the payment of the eventual con-
iemnation-money. Acts 1895, p. 91; Acts 1873,
). 46.
No forthcoming bond is necessary under this section.
Peppers v. Coil, 113 Ga. 234, 38 S. E. 823.
Final Process. — Foreclosure proceedings under this section
ire final process and can only be converted into mesne
>rocess by the filing of the counter-affidavit. To replevy
he property levied on is not sufficient, and in the absence
tf the counter-affidavit the plaintiff may enter judgment
>n the replevy bond. Giddens v. Gaskins, 7 Ga. App. 221,
'6 S. E. 560. See also, Harvey v. Johnson, 28 Ga. App. 287,
11 S. E. 576; Wilson v. Griffin, 22 Ga. App. 451, 452, 96 S.
I 395.
Necessity for Replevy Bond. — In a proceeding under this
lection to foreclose a landlord's lien for supplies, a general
udgment in the landlord's favor can not be rendered un-
ess a replevy bond is filed. Argo v. Fields, 112 Ga. 677,
i7 S. E. 995.
§ 3367. (§ 2817.) Judgment on replevy bonds,
n lien cases. — In all foreclosures of liens on per-
sonalty, in which the property levied on is re-
)levied, and in which verdicts shall be found for
:he plaintiff, the plaintiffs shall enter up judg-
nents against the defendants and their securities
n the same manner, and to the effect, as in cases
)f appeal. Acts 1880-1, p. 110.
Where no counter-affidavit is filed and a replevy bond is
jiven, the effect is the same as if a verdict were found for
:he plaintiff, and he may enter up judgment. Tipton v.
:onrad, 21 Ga. App. 593, 94 S. E. 815; Giddens v. Caskins,
' Ga. App. 221, 66 S. E. 560; Peppers v. Coil, 113 Ga. 234,
18 S. E. 823.
§ 3368. (§ 2818.) Liens of. pawnees, etc., how
satisfied. — Liens of pawnees, innkeepers, iboard-
ng-house keepers, livery-stablemen, and attor-
leys at law in possession of personal property un-
der a lien for fees shall be satisfied according to
the provisions of section 3530 of this Code, in
:ases where there is no notice of conflicting liens;
but if there is a conflicting lien, the mode of
foreclosure pointed out in section 33G6 shall be
pursued. Acts 1873, p. 46; 1880-1, p. 63.
As to additional means of enforcing liens of livery-stable-
man, see § 3370.
§ 3369. (§ 2819.) Liens of factors, etc., how
satisfied. — Liens of factors and acceptors, and of
incorporated companies, shall be satisfied by such
sale as the usage of the locality where such fac-
tors and acceptors reside, and incorporated com-
panies are located, may have established, or may
establish. Acts 1873, p. 46.
As to factors, see 6 Cum. Dig. 116; 6 Enc. Dig. 179, see
also, § 3502, as to acceptors, § 4278, as to corporations, §§
3331, 3375, as to force of custom in this state, § 1(4).
§ 3370. (§ 2820.) Enforcement of livery-stable
liens. — In addition to the manner in this Code
provided, every livery-stable keeper may assert
the lien on stock placed in his care for keeping, by
reducing to a writing a statement of the amount
due him for the care of said stock, a description
of the stock on which said lien is claimed, making
affidavit thereto, and recording the same in the
clerk's office of the superior court of the county
where said service was rendered. When said
hen is so recorded, it shall have the same dignity
and effect as is now given by law to the lien of
livery-stable keepers where they retain possession
of the stock placed in their keeping; which lien
shall be recorded whilst such property is in the
possession of such livery-stable keeper, and as
mortgages on personalty are required to be re-
corded; said liens may be foreclosed as mort-
gages on personalty are now foreclosed by law.
Acts 1889, p. 117.
As to method of foreclosure, see § 3286.
ARTICLE 4.
Miscellaneous Provisions.
§ 3371. (§ 2821.) Rank of other liens.— All liens
not regulated and fixed, as to their rank, in this
Chapter, shall rank according to date, the oldest
having priority. Acts 1873, p. 47.
§ 3372. (§ 2822.) Liens are assignable. — All
liens provided for in this Chapter may be as-
signed in writing and not otherwise, and under
such assignment the assignee shall have all the
rights of the assignor as regulated in this Chap-
ter. Acts 1873, p. 47.
As to assignment of choses in action see § 3653. As to
assignment of secured notes, etc., see §§ 3345-3347.
Editor's Note. — Formerly there was some uncertainty as
to the effect of a transfer of a secured obligation without
mention of the security. But this question is settled by
§§ 3345-47. In a case in a Federal court it was held that
this section was not applicable to mortgages. Winstead v.
Bingham, 14 Fed. 1. But it is settled now that the section
does apply to mortgages. National Bank v. Exchange
Bank, 110 Ga. 692, 36 S. E. 265. See also, Planters Bank
v. Prater, 64 Ga. 609, 611. In this case there was a dictum
to the effect that mortgages were within this section but
this was not followed in Winstead v. Bingham, supra.
Mere Transfer of Note by Delivery. — Where a promissory
note and mortgage upon personal property are combined
together in one instrument, one who is not the payee named
in the paper cannot foreclose the mortgage in his own
name as holder and owner thereof without having a written
assignment of the same. Nicholson & Co. v. Whaley, 90
Ga. 257, 16 S. E. 84.
Transfer in Writing Need Not Be Alleged, if True in
Fact.- — Although the bearer of a mortgage, as such, has no
right to foreclose it in his own name, yet where it appears
that one so proceeding had, in fact, a transfer in writing to
him, the verbal inaccuracy in describing his character as
[917]
§ 3373
HOMESTEAD EXEMPTIONS, WHEN GRANTED
§ 3377
plaintiff furnished no reason for quashing the proceeding.
Taylor v. Blasingame, 73 Ga. 111.
Attempted Pledge Will Not Constitute Assignment.— An
attempt by a warehouseman to pledge property of another
in his possession by means of warehouse receipts will not
constitute a transfer of his lien thereon. Nat. Exch. Bk.
v. Graniteville Mfg. Co. 79 Ga. 22, 13 S. E- 411.
Contract On Which Lien Based May Be Oral.— The land-
lord's lien may be assigned in writing whether the contract
between landlord and tenant be written or not. Scott &
Co. v. Ward, 21 Ga. App. 535, 94 S. E- 863.
Applied to mechanic's lien, in Logue v. Walker, 141 Ga.
644, 81 S. E. 849.
§ 3373. (§ 2823.) Vendor's lien abolished.—
The vendor's equitable lien for the purchase-
money of lands is abolished in this State.
Cross References. — For full treatment of Vendor's Lien,
see, 12 Enc. Dig. 630, 11 Cum. Dig. 340. As to attachment
by vendor see § 5083.
Vendor Has No Priority in Decedents Estate. — In the
distribution of a decedent's estate a vendor holding promis-
sory notes has no priority of payment out of the land.
Jones v. Jones, 56 Ga. 325.
Not Retroactive.i — This section was held to be not retro-
active. Bass v. Ware, 34 Ga. 386.
Applied in Green v. Hall, 151 Ga. 728, 108 S. E. 42; Rounsa-
ville v. Peek, 108 Ga. 584, 587, 34 S. E- 141; Broach v.
Smith, 75 Ga. 159, 160; Cruger v. Clark, 44 Ga. 224, 226.
§ 3374. (§ 2824.) Attorney's rights in claim cases.
— In claim cases the attorney causing the levy and
prosecuting the rights of the plaintiff in fi. fa. shall
be entitled to his fees from the proceeds of the prop-
erty condemned, although older liens may de-
mand and, recover the proceeds from the immedi-
ate client of such attorney.
As to attorney's lien in general, see § 3364, as to gar-
nishment cases, see § 5290.
Money in Court. — Under this section when by litigation
with a claimant, money is brought into court no matter
what lien takes it, the party bringing it into court by
such litigation is entitled to fees. May & Co. v. Sibley, 69
Ga. 133, 135.
Where money is realized simply by levy and sale, this
section gives no preference to the attorney representing the
fi. fa. which brings the money into court to the prejudice
of other liens. Baxter v. Bates, 69 Ga. 587.
§ 3375. (§ 2825.) Lien by by-laws.— The by-laws
of a corporation may create a lien upon the
shares of other property of the stockholders in
favor of the company; such lien is binding
upon the corporators themselves, and upon all
creditors giving credit with notice, or purchasers
at public or private sale purchasing with notice.
Cross References.— See 2 Enc. Dig. 668; 10 Cum. Dig. 560.
As to liens given by charter, see § 3331; as to enforcement,
see § 3369. As to creation of lien upon bank stock for the
unpaid installments, see § 2366(89).
Editor's Note. — Prior to the banking laws of 1919, § 2366-
(89) of this Code, this section was held applicable to banks.
Since that act it is no longer applicable.
Certificate as Notice to Transferee of Contents of Books. —
" 'A statement in a stock certificate that the same is
"transferable only on the books of the corporation, in per-
son or by attorney, on surrender of the certificate," does
not charge the transferee with notice of what is on the
books of the company, or of the existence of the lien, or of
the fact of the stockholder's indebtedness to the company.' "
Citizens Bank v. Bank, 24 Ga. App. 435, 437, 101 S. E- 203.
See also, Bank v. Bank, 120 Ga. 575, 48 S. E- 226.
The lien under this section is superior to the lien of a
judgment whether the judgment creditor had notice or not.
Owens v. Atlantic Trust Co., 122 Ga. 521, 50 S. E- 379.
§ 3376. (§ 2826.) Liens on rules absolute.—
Rules absolute granted against defaulting sher-
iffs, constables, and other officers, under the va-
rious provisions of this Code, shall have a lien on
their property from the date of their rendition,
similar to that of judgments obtained at the
same term.
See § 5350.
CHAPTER 11.
Homestead.
ARTICLE 1.
Exemptions.
SECTION l.
In What, and to Whom Granted.
§ 3377. (§ 2827.) What is exempt, and who may
claim it. — There shall be exempt from levy and
sale by virtue of any process whatever, under the
laws of this State, except as hereinafter excepted,
of the property of every head of a family, or
guardian, or trustee of a family of minor children,
or every aged or infirm person, or person having
the care and support of dependent females of any
age, who is not the head of a family, realty or
personalty, or both, to the value in the aggregate
of sixteen hundred dollars; and no court or min-
isterial officer in this State shall ever have juris-
diction or authority to enforce any judgment,
executon, or decree against the property set apart
for such purpose, including such improvements
as may be made thereon from time to time, ex-
cept for taxes, for the purchase-money of the
same, or labor done thereon, for material fur-
nished therefor, or for the removal of incum-
brances thereon.
Cross References. — For full treatment, see 6 Cum. Dig.
7 et seq. ; 6 Enc. Dig. 6 et seq. and references there given.
As to constitutional provisions regarding homestead, see
§§ 6582, 6585. As to how impounded animals disposed of
and damages assessed, see § 2034. As to husband as head
of family, see § 2992. As to provision as to years support
to family, see § 4041 and "Editor's Note" thereto.
Where Statutory Exemption Has Been Allowed. — Under
the provisions of § 3404, where the statutory exemption
provided for under § 3416 has been allowed the debtor, he
can not thereafter apply for and have set apart a home-
stead under the provisions of this section et seq., even
though at the time of the last application the property
previously set apart as an exemption had been consumed
or disposed of. Darlington v. Belt, 12 Ga. App. 522, 77 Sj
E. 653.
Priority of Debts Due Before Constitution of 1868.— See
Pratt v. Atkins, 54 Ga. 570. ,
A widow may have set apart an exemption for herself
and minor children from the property if her deceased hus-
band devised to her for life and in trust for such minor
children. Bridwell v. Bridwell, 76 Ga. 627.
A widow can not as head of a family have land left by
her husband set apart as homestead except as to her owr
interest therein. Madden v. Jones, 75 Ga. 682.
A guardian of one minor child is the head of a family of
minor children, under this section. Rountree v. Dennard,
59 Ga. 629.
A bachelor, having no person depending- on him for sup-
port and maintenance, which the law imposes on him as a
legal duty, is not the head of a family, and not entitled
to a homestead. Calhoun v. McEendon, 42 Ga. 405.
Land Belonging to Wife. — A husband can not take a
homestead in land belonging to his wife. A homestead so
set apart is invalid as against a judgment creditor of the
wife. Jackson v. Williams, 129 Ga. 716; Citing, Bennett v.
Trust Co., 106 Ga. 578, 32 S. E. 625.
Partnership Property. — No individual exemption can be
allowed out of the partnership estate at the expense of the
joint creditors, in bankruptcy proceedings. In re Stewart,
23 Fed. Cas. 51.
Where each partner has applied for and obtained a home^
stead in the partnership land, the same being assigned in
separate parcels, a prior creditor of the partnership can not,
enforce a judgment over the homestead right. Harris v.
Visscher, 57 Ga. 229.
Where Purchase-Money Due. — A claimant not having
paid the purchase-money and having no title when he ap-
plied for the homestead, any homestead set apart to him
[918]
§ 3378
APPLICATION AND SCHEDULE
§ 3378
in this land was not binding upon the original vendor. No
person can take a homestead in property as against the
vendor, where the purchase-money has not been paid. Per-
due v. Fraley, 92 Ga. 780, 781, 19 S. E. 40.
The admission that the purchase-money of the land levied
on is still due, and that the judgment of the plaintiff is
for the same, is fatal to an affidavit of illegality to the
levy. Blackwell v. Aiken, 73 Ga. 55, 58.
The specific property for which purchase-money is due
is liable to a judgment therefor, notwithstanding the same
has been set apart under the homestead law. Other prop-
erty exempted is not subject thereto. Loyless v. Collins,
55 Ga. 371.
Sale for Purchase Price. — Where exempted property is
sold under execution for the purchase-price, a creditor not
>f the class expressly declared superior to homestead can
not claim the proceeds. Walker v. Johnson, 64 Ga. 363.
Borrowed Money Used to Pay Purchase- Money. — See 6
Cum. Dig. 22.
Debts Incurred in Removing Incumbrances. — Under this
section, purchase-money and debts incurred in removing
incumbrances have the same status. McConnell v. Gregory,
146 Ga. 475, 91 S. E. 550.
Property Purchased with Proceeds of Homestead. — Where
the property was purchased 'with the proceeds of a home-
stead, it was homestead property. Thornton v. Hornton.
24 Ga. App. 92, 93, 100 S. E. 41.
Necessities and Stock Feed. — Neither an article of neces-
sity furnished for the use of the family nor even stock
feed furnished to feed horses, which has been set apart as
part of a homestead, comes within the constitutional ex-
ceptions under which homestead property may be subjected
to sale. McLamb & Co. v. Lambertson, 4 Ga. App. 553,
52 S. E- 107.
Exemption Covering Ford Automobile. — The homestead
exemption covering a "Ford automobile" . can only have
been allowed under, the provisions of this section and could
not be upheld as a statutory or "short" homestead. Gann
v. McGee, 19 Ga. App. 13, 90 S. E. 976. •
Execution for Alimony. — Land of an aged and infirm per-
son set apart to him as a homestead under this section is
not subject to levy and sale under an execution issued
upon a general judgment for permanent alimony. Knox v.
Knox, 148 Ga. 253, 96 S. E. 337.
Liability for Taxes. — The liability of a surety of a county
treasurer for funds in the treasurer's hands, to a liability
for taxes within this section, from which homestead is not
exempt. McWatty v. Jefferson County, 76 Ga. 352.
A collateral attack on a judgment setting aside a con-
stitutional homestead under this section is not allowable,
though allowable as to a "short homestead." Gann v. Mc-
Gee, 19 Ga. App. 13, 90 S. E. 976.
SECTION 2.
Application and Schedule.
§ 3378. (§ 2828.) Application, how made.
1. Every person seeking the benefit of exemp-
tions provided in the Constitution shall apply by
petition to the ordinary of the county in which he
resides, or in which minor beneficiaries reside,
where the application is made for their benefit,
stating for whom the exemption is claimed; if by
the head of a family, stating the names and ages
of the family; if by a guardian or trustee of a fam-
ily of minor children, stating the names and
ages of the minor children; if by or for any aged
or infirm person, stating the age of the person
and the character of the infirmity; and if by a per-
son having the care and support of dependent
females, stating the names and ages of the fe-
males, and how dependent; and stating out ol
what and whose property exemptions are
claimed, and complying with all the requirements
of the laws for setting apart and valuation of
homesteads and exemptions in force at the time
of the ratification of the Constitution, to which
laws all subsequent proceedings before the ordi-
nary or under his direction shall conform, except
as otherwise provided in this Article.
Cross Reference. — For full treatment, see 6 Cum. Dig. 31
et seq.; 6 Enc. Dig. 47 et seq.
Editor's Note. — For the sake of convenience to the
searcher, general material applicable to the section in toto,
has been included under this paragraph.
Capacity of Ordinary. — The ordinary must, by the force
of this section, in entertaining applications for and in pass-
ing upon the questions raised and in finally acting on the
application in granting or refusing the homestead, act in
his judicial capacity, that is, he must constitute a court.
Dunagan v. Stadler & Co., 101 Ga. 474, 477, 29 S. E. 440;
Marcum v. Washington, 109 Ga. 296, 34 S. E- 585.
Review of Acts of Ordinary. — Power to act under this
section is conferred upon the ordinary of the county in
which the applicant resided; and his action must be re-
viewed by certiorani and not by appeal. Cunningham v.
United States Say., etc., Co., 109 Ga. 616, 618, 34 S. E. 1024.
Signature to and Verification of Petition. — Where a peti-
tion for a homestead was signed by the attorney of the
applicant, and verified by the affidavit of the latter, it was
not void. Roberts v. Cook, 68 Ga. 324.
Alleging Age of Wife. — Where a homestead was asked
for the benefit of a wife and children, a failure to allege
the age of the wife did not render the proceeding void.
Roberts v. Cook, 68 Ga. 324.
Showing Beneficiaries. — -A petition which stated that the
applicant claimed a homestead as head of a family, and
then stated of whom that family consisted (his wife and
children), was sufficiently explicit in showing who were
the beneficiaries for whom the homestead was asked.
Roberts v. Cook, 68 Ga. 324.
Head of Family. — A wife having children by a former as
well as by a present husband can not be said to be the
head of a family, consisting of herself and her minor chil-
dren by both husbands. Neal v. Sawyer, 62 Ga. 353.
Widow as Head of Family and Guardian. — A widow in
the character both of the head of a family and the guardian
of her minor children, applied for an obtained homestead in
the real estate of her husband. The effect of so doing was
to obtain a homestead as the head of a family in her own
undivided share, and a homestead as the guardian of her
minor children in their undivided shares. Fountain v.
Hendley, 82 Ga. 616, 9 S. E. 666.
Dependent Females. — This section does not contemplate
a homestead or exemption for the benefit of dependent fe-
males, except in the property of the person upon whom
they were dependent. Sutton v. Rosser, 109 Ga. 204, 206.
34 S. E. 346.
Question for Jury. — The sufficiency of identification of
property in an application for homestead is a matter for the
consideration for the jury. Gann v. McGee, 19 Ga. App.
13, 90 S. E. 976.
After- Acquired Realty. — Where the head of a family as-
serts a homestead in personalty, not having any realty at
that time, he does not lose his right to a homestead in
realty thereafter acquired. Dickinson v. Haralson, 161 Ga.
526.
Homestead Set Aplart Under Section 3414. — "A constitu-
tional homestead set aside only as provided in § 3414, and
not as provided in this section, has not been set aside as
provided by law." Brown v. Scarborough, 158 Ga. 301,
303, 123 S. E. 605.
Fixing Valuation. — It is not incumbent on the applicant
for a homestead to fix the valuation of the real estate
sought to be set apart. This duty devolves upon the sur-
veyor, his valuation being subject to review by appraisers.
Wood & Bro. v. Collins, 111 Ga. 32, 36 S. E- 423,
2. The applicant shall also accompany his peti-
tion with a schedule containing a minute and ac-
curate description of all real and personal prop-
erty belonging to the person from whose estate
the exemption is to be made, so that persons in-
terested may know exactly what is exempted,
and what is not; and also with a list of his or
her creditors and their post-offices, if known,
which -must be sworn to by the applicant or his
agent.
Cross Reference. — See ante, cross reference and notes to
paragraph 1 of this section.
List of Property. — Whether the applicant ownes more or
less in value than $1,600, and whether all or only a part of
his estate is to be exempt, the schedule must contain a list
[919]
§ 3379
APPLICATION AND SCHEDULE
§ 3380
of all the property owned by him. Blackstone v. Kritzer,
120 Ga. 78, 47 S. E. 585.
The description of an automobile, in the application for
homestead, as "one five-passenger Ford automobile," was
sufficient to identify the property. Gann v. McGee, 19 Ga.
App. 13, 90 S. E. 976.
No Schedule. — Where there is nc schedule of property,
the homestead in void. Peterson v. Calhoun, 135 Ga. 103,
68 S. E. 1023.
The approval of the schedule does not operate to set
aside, as exempt, property described therein, but omitted
from that part of the petition stating out of what property
the exemption is claimed. Blackstone v. Kritzer, 120 Ga.
78, 47 S. E. 585.
Wife Failing to Attach Schedule as to Personalty. — Where
a wife, upon the refusal of her husband so to do, made an
application to the ordinary for an exemption of realty out
of land belonging to the husband, but not praying therein
for any exemption of personalty, the exemption of realty,
after being duly set apart and approved by the ordinary,
was not, under this section and § 3380, void because of the
applicant's failure to attach to her application a schedule
of personal property belonging to the husband, nor because
in such application it was incorrectly stated that the hus-
band owned no such personal property. The requirements
of these sections in relation to the schedule of personalty
are applicable only when an exemption in personalty is
sought. Atwater v. Respess, 97 Ga. 282, 22 S. E. 1000.
Schedule Amendable.— The schedule is a part of the plead-
ings, and is amendable at any time prior to judgment.
Davis v. James, 145 Ga. 325, 89 S. E. 203.
A petition for homestead may be amended by adding to
the schedule something which has been omitted, but not
by striking therefrom any article of property therein set
forth. ^ If the applicant has by mistake inserted property
belonging not to him but to another, he should dismiss his
application and file another one, omitting such articles of
property not belonging to him as were in the previous
schedule. Mc Williams v. Bones, 84 Ga. 199, 10 S. E. 723;
Smith v. Exchange Bank, 25 Ga. App. 278, 103 S. E. 99.
Sale of Article Included in Schedule.— The sale by the ap-
plicant, after making his application, of an article which
he had placed on his schedule, was sufficient to have de-
feated the application, unless he accounted for the money
and delivered up the same for the benefit of his creditors.
McWilliams v. Bones, 84 Ga. 199, 10 S. E. 723.
3. For a failure to comply with this section,
either in the original petition or amended peti-
tion which may be amended at any time prior to
the final proceedings before the ordinary, the
ordinary shall dismiss the petition.
See notes to preceding paragraph.
4. The applicant shall apply to the said ordi-
nary for an order to the county surveyor, and if
there be none, some other surveyor, to lay off his
homestead allowed by the Constitution, and to
make a plat of the same, which order the ordi-
nary shall issue at once and give to the applicant.
Acts 1878-9, p. 99; 1876, p. 48; 1868, pp. 27, 28,
Presumption that Proper Order Given. — As against a
creditor who was duly served with notice of an application
for a homestead, filed and approved in 1885, it will, though
the homestead proceeding does not so disclose, be presumed
that a proper order to the surveyor to lay off and plat the
homestead was granted; nor as to such creditor will a
homestead so approved be treated as invalid because the
plats of two lots composing the same did not purport to
be made by the county surveyor and were not sworn to,
accompanied by an affidavit as the law requires. Dunagan
v. Stadler & Co., 101 Ga. 474, 29 S. E. 440.
Plats Made by Another than County Surveyor. — "The
fact that the ordinary granted the homestead presumes
that it was regular. When it is shown that the plats were
made by another than the county surveyor, the law will
presume there was no county surveyor." Dunagan v.
Stadler & Co., 101 Ga. 474, 480, 29 S. E. 440.
§ 3379. (§ 2829.) Homestead in different coun-
ties.— Whenever the applicant is not possessed of
sufficient amount of realty situated in the county
of his residence, he may embrace within his ap-
plication tracts of land situated in other counties
than that of his residence; and in such case the
ordinary before whom said application is made
[920]
shall cause the survey, valuation, and plat of said
lands, lying in counties other than the residence
of the applicant, to be made by the county sur-
veyor of the county where said lands are situated.
Acts 1869, p. 25.
Personal Property. — Where only personal property is
set apart as a homestead under this section, no record of
the application is required in any county other than that
of the applicant's residence when he applies. McEamb &
Co. v. Eambertson, 4 Ga. App. 553, 62 S. E. 107.
§ 3380. (§ 2830.) Schedule must be full; effect
of fraudulent omission. — It shall be the duty of
each and every person who claims the benefit of
the exemption allowed in this Article, as the al-
lowance is a liberal one, to act in perfect good
faith; and as it is in the power of the debtor,
claiming the exemption of personal property, to
conceal part of his property or money, and to
claim the balance as exempt, it shall be the duty
of such debtor, when he takes steps in the court
of ordinary to have said exemption of personal
property set off to him, to make a full and fair
disclosure of all the personal property, including
money, stocks and bonds, of which he may be
possessed at the time, and all such money or
property which he may hold in excess of the said
exemption shall be subject to levy and sale for
the payment of his just debts, and. if the money
or other personal property of which he is pos-
sessed at the time of his said application, or at the
time he obtains the order of court setting off the
property exempt, is fraudulently concealed, or is
not delivered up for the benefit of his creditors,
no exemption shall be made in his favor till it is
so delivered up; and all orders of court obtained
by the fraudulent concealment of property as
aforesaid, or obtained while the debtor had per-
sonal property, money, stock, or bonds which
he kept out of the reach of the levying officer, or
did not in good faith deliver up for the benefit of
his creditors, shall be null and void and of no ef-
fect, and the property set off to the debtor by
such order or judgment shall be subject to levy and
sale, as if no such order or judgment had been ren-
dered; and all property in which the debtor shall
have invested the money, stocks, bonds, or per-
sonal property fraudulently concealed by him, or
kept out of the reach of his creditors, shall foe
subject to levy and sale, and liable to ibe sold for
the payment of any debt then in existence. The
debtor guilty of willful fraud in the concealment
of part of his property from his creditors, of
which he is so possessed when he seeks the benefit
of the exemption, shall, on account of his fraud, lose
the benefit of such exemption, and his property
shall be subject to the payment of all just debts
which he owed at the time such fraud was com-
mitted; but the property, when once set off to
him by order of the court, shall be exempt as
against all debts contracted after that time, but
not as against pre-existing creditors whom he has
attempted to defraud by failing to give up to his
creditors all property in his possession, subjecl
to the payment of his debts, at the time he ap-
plied for the benefit of the exemption. Acts 1869
pp. 23, 24.
Cross References. — See 6 Cum. Dig. 33 et seq. ; 6 Enc
Dig. 52 et seq. As to acts void against creditors, see ?
3224. See also, notes to § 3378.
Section Refers to Constitutional Homestead. — The pro
vision of this section, that "it shall be the duty of eacl
§ 3380
NOTICE TO CREDITORS
§ 3381
and every person who claims the benefit of the exemption
allowed m this article * * * to act in perfect good faith,"
and that the exemption shall not he allowed to a claimant
who is guilty of fraud, has reference to the $1,600 consti-
tutional homestead exemption, and not to the $300 statu-
tory exemption. In re West, 116 Fed. 767; In re Dobbs, 175
Fed. 319.
The full and fair disclosure and surrender of personalty,
required by this section, must be made at the time of the
application, or at or before the order setting off the prop-
erty exempt is granted. Any failure (until satisfactorily
explained and accounted for, and the consequences re-
paired) is to_ be deemed intentional and therefore fraudulent.
Torrance v. Boyd, 63 Ga. 23.
Under this section a bankrupt who does not make a full
and fair disclosure of all the property owned by him at the
time of the filing of his petition in bankruptcy is not en-
titled to have any exemption set apart to him by his trus-
tee in bankruptcy. In re Waxelbaum, 101 Fed. 228.
The good faith required of a debtor by this section, to
entitle him to his homestead exemption, as such section is
construed by the Supreme Court of the state is in making
a full and fair disclosure of his property, and a court of
bankruptcy is not justified in denying his exemption because
of his fraud in other respects. In re Castleberry, 143 Fed.
1018.
Person Representing Self to Be Head of Family. — Where
one is not entitled to the homestead, but represents him-
self to be the head of a family consisting of himself and
daughter, when in fact he has no such family, this is a
palpable fraud, and too, he loses the benefit of the homestead.
Walker v. Thomason, 77 Ga. 682, 683.
Gift to Wife by Insolvent. — Though a gift of money or
other property by an insolvent to his wife would be void
as to creditors, it would be good as to the wife; and if she
had actually disposed of such money or property before
applying for an exemption out of the husband's property,
her failure to include what was given her in the schedule
would not vitiate her application, when it did not appear
that the gift was made in anticipation of the application
and for the purpose of concealing the property. Wood &
Bro. v. Collins, 111 Ga. 32, 36 S. F. 423.
Application by Wife. — This section does not in terms ap
ply to a case where the application is made by the wife to
nave the exemption set apart out of the property of the
husband; but it would seem that when the wife is the ap-
plicant and she wilfully omits from the schedule filed by
her property belonging to her husband which is subject to
the payment of his debts, the penalty which the law im-
poses upon her husband if he is the applicant and guilty
:>f such conduct should also fall upon her. Wood & Bro.
v. Collins, 111 Ga. 32, 34, 36 S. F. 423.
Omission of Property from Wife's Schedule. — If any prop-
erty be left out of the wife's schedule through the fraud of
the husband, even though the wife was no party to the
fraud and was ignorant of it, she will have to suffer the
penalty which the law imposes upon the husband when he
is the applicant. Kirtland v. Davis, 43 Ga. 318; Wood &
Bro. v. Collins, 111 Ga. 32, 34, 36 S. F. 423.
Retention of Money to Pay Fees and Expenses. — A party
seeking a homestead can not retain any amount of money
which he may deem necessary and needful to employ at-
torneys, pay licenses, and carry on business, but he must
account for it; and, if the schedule exceeds the amount to
which he is entitled as an exemption, he must produce the
money in court, and pay it over, so that his creditors may
?et it. McNally v. Mulherin, 79 Ga. 614, 4 S. F. 332; In
re Waxelbaum, 101 Fed. 228, 229.
Collateral Attack for Insufficient Description.— The sched-
ule filed by the applicant for homestead and exemption,
should describe the personal property, with reasonable cer-
tainty. But if the creditor failed to appear and object, on
the ground that the schedule was insufficient, and it gives
a general description of the property, and no fraud or un-
fairness is alleged or shown, the creditor will not be per-
nitted to attack the judgment of the ordinary setting it
apart, collaterally, in a claim case, on the ground that the
schedule was not sufficiently descriptive. Bartlett v. Rus-
sell, 41 Ga. 196.
Attack of Exemption by Creditor's Executor. — Executors
3f a creditor may attack the exemption of a debtor as
fraudulent. And they will not be estopped by the fact that,
pending probate and qualification, they did not resist the
application. Killen v. Marshall, 55 Ga. 340.
Duty of Bankrupt.— Under this section a bankrupt seek-
ing an exemption must deal with perfect frankness with his
creditors and disclose and deliver all his property except
the exemption, and a failure to do so defeats his applica-
tion, and a bankrupt, who just before and at the time of
his bankruptcy sought to get his property out of the reach
of his creditors, was not entitled to the exemption. In re
Cochran, 185 Fed. 913.
Same — Omitting Property from Schedule. — Under this sec-
tion a bankrupt who conceals personal property, omitting
it from the schedule is not entitled to claim the exemp-
tion. In re Anderson, 224 Fed. 790.
Fraudulent Disposal of Goods and Assets. — A bankrupt,
after verifying his schedules, returned to his store and
took from the safe and cash drawer checks which he had
not scheduled, and distributed the amounts thereof among
his most pressing creditors, most of the payments being
made after adjudication entered. He also turned over to
his brother, to whom he was indebted, fresh meat on hand
when he closed the store, claiming that he feared it would
spoil, and permitted his wife to spend for necessaries checks
aggregating a few dollars. He never offered to account for
any of the money or other property so kept back, or to
surrender it to the trustee. Held, that he violated, not
only this section, but the Bankruptcy Act, and it was the
duty of the court to deny him his exemption. In re Hardy,
229 Fed. 825.
Reconveyance after Evasive Conveyance. — Under this
section a bankrupt can not be denied the right to his home-
stead exemption because he once conveyed the land claimed
to his wife in a vain attempt to evade a debt, where it was
reconveyed prior to the bankruptcy proceedings and was
scheduled by him as his property. In re Thompson, 115
Fed. 924.
Clean Hands of Party Seeking Exemption. — A bankrupt,
whose business is carried on in the name of her son, as
agent, without her having anything to do with it, can not
claim an exemption therefrom allowed by Code, which re-
quires the person claiming it to come into court with clean
hands, practically all the indebtedness having been con-
tracted within the five months preceding the petition in
bankruptcy, and all the best of the stock having been sold
off at auction during the last of said months, leaving old
stock, which, with fixtures, is worth less than the amount
of the exemption. In re Willliamson, 114 Fed. 190.
Accounting for Depreciation of Assets. — A bankrupt
claiming an exemption under this section must give a bet-
ter explanation than that he "sold a great deal of goods,
and sold some of them at less than cost, to try to meet
obligations," where his schedule in bankruptcy shows a
great reduction in assets. In re Stephens, 114 Fed. 192.
Where financial and schedule statements show a great
depreciation in assets and increase in liabilities, the state-
ments and schedules made a prima facie case of conceal-
ment on the part of the bankrupt under this section, and
cast upon him the burden of showing that the statements
were false when made, or of explaining what became of
his assets, and in the absence of such explanation it wouid
be conclusively presumed that he was concealing a portion
of his assets. In re Powell, 230 Fed. 316.
Ruling of Referee as Res Judicata Against Discharge. —
Ruling of referee, on objections to allowance of homestead
exemption, that bankrupt had concealed property in viola-
tion of this section and § 3380, is not res judicata against
the bankrupt's right to discharge, since § 3386, permits a
creditor to object to an allowance of homestead exemption
for fraud of any kind at any time, whereas Bankruptcy
Act, section 19b (4), Comp. St. 1916, § 9598, requires the
fraud to have occurred at any time subsequent to the first
day of the four months immediately preceding the filing of
the petition. In re Frosteg, 252 Fed. 199.
SECTION 3.
Notice to Creditors.
§ 3381. (§ 2831.) Notice of application, how
published. — When said schedule has been filed,
and application made, the ordinary shall pub-
lish in the gazette where the orders are usually
published, not more than twice, a notice as fol-
lows: "A. B. has applied for exemption of per-
sonalty, and setting apart and valuation of home-
stead, and I will pass upon the same at
o'clock , on the day of , 18 — , at
my office. C. D., Ordinary;" filing said blanks
so that all persons may know the time for action
by the ordinary on said petition. Acts 1868, p.
28; 1871-2, p. 53.
See 6 Cum. Dig. 33; 6 Enc. Dig. 53.
Notice for Whose Benefit. — The requirement as to notice
[921]
§ 3382
SURVEYOR'S RETURN AND APPLICATION
§ 3385
is intended, for the benefit of the creditors of the person out
of whose estate the homestead is to be set apart, and a de-
fect in . the advertisement would not avail one for whose
benefit the publication was not made. Gann v. McGee, 19
Ga. App. 13, 90 S. E. 976.
Misnomer. — Where there is a misnomer in the printed
notice, a judgment granting a homestead is of no force as
against a creditor. Gann v. McGee, 19 Ga. App. 13, 90 S.
E. 976. See also, Smith v. Lord, 60 Ga. 463.
Absence of Ordinary. — Where, upon application for a home-
stead, the ordinary fixed a time and place for passing upon
the same and on that day he was absent from the county
and no provision for a continuance was made he could not
subsequently without further notice approve the applica-
tion and grant the homestead. Brady v. Brady, 67 Ga.
368.
Waiver of Notice. — The mere presence of an attorney
when the ordinary acted upon and approved an application,
was no waiver of notice or of legal publication as to his
client, the attorney not having appeared as such. Smith v.
Lord, 60 Ga. 463.
Presumption, — -The presumption is that the ordinary has
done all that is required by law before granting a home-
stead, and this presumption extends to the giving of no-
tice of the application, where nothing appears to show ab-
sence thereof. Groover, etc., Co. v. Brown, 69 Ga. 60.
§ 3382. (§ 2832.) Other notice.— In addition to
the notice by publication required to be given by
the preceding section, the applicant or his agent
shall give notice in writing of the filing of such
application, and of the day of hearing the same,
to each of his creditors residing in the county, at
least five days before the hearing, which notice
shall be served personally, or by leaving a copy
at the residence or house of business of his credi-
tor, and the fact of such notice shall be verified
by oath of the applicant or his agent. Said appli-
cant shall also notify creditors residing out of the
county of his application, by preparing written
notices of his application and the day of hearing,
which notices shall be delivered by him to the
ordinary, with stamped envelopes, and shall be
by said ordinary directed and mailed to said per-
sons so residing out of said county, if the resi-
dence of such creditors be known to the peti-
tioner, at least fifteen days before the day of
hearing. Acts 1876, p. 48.
See 6 Cum. Dig. 33; 6 Enc. Dig. 53.
Service by Officer.— Service of notice by an officer is not
required or contemplated by this section. Weekes & Son
v. Edwards, 101 Ga. 314, 28 S. E. 853.
Service on Partner.— Where the debtor of a firm sought
to obtain a homestead, but instead of naming the firm in
his schedule, named one of the partners as an individual
creditor and served him alone with notice, such statement
and notice did not include the firm upon the grant of the
homestead. Boroughs v. White, 69 Ga. 841.
Time.— Where a homestead was applied for on December
4, 1877, and the return of the county surveyor laying off the
homestead was made on December 14, 1877, the ordinary
was without authority of law to approve the homestead on
December 15, 1877. A homestead thus approved was il-
legal and void. West v. McWhorter, 141 Ga 590 81 S E
859. ' '
Presumption.— If the record of a homestead proceeding
shows that a non-resident creditor's name and address were
returned by the applicant to the ordinary, and in proper
time a notice with stamped envelope was delivered to the
ordinary for mailing, notice is sufficiently shown. The
presumption is that the ordinary did his duty. Roberts v
Cook, 68 Ga. 324.
§ 3383. (§2833.) Time of hearing application.
— The time fixed by said notice shall not be less
than twenty nor more than thirty days from the
date of the order of the ordinary to such surveyor.
Acts 1876, p. 48.
If more than 30 days intervene between the date of the
order of the ordinary to the surveyor and the time fixed in
the notice, the homestead is void. Roberts v. Atlanta
Cemetery Ass'n, 146 Ga. 490, 91 S. E. 675.
SECTION 4.
Surveyor's Return; Approval of Plat and Appli-
cation.
§ 3384. (§ 2834.) Surveyor's duty and liability.
— The suryeyor to whom said order shall be deliv-
ered by the applicant shall lay off the homestead
on or out of the land claimed by the applicant,
and make a plat of the same, and make an affi-
davit that the same is correctly platted and laid
off, and its value, and return the same to the ordi-
nary before the da)^ appointed in the order for
passing upon said application. Should any
county surveyor fail to comply with his duty as
prescribed in this Article, he shall be, by said or-
dinary, punished for a contempt of court. Acts
1868, p. 28.
See 6 Cum. Dig. 37; 6 Enc. Dig. 55. See also, § 3387.
Sufficiency of Affidavit. — The surveyor's affidavit that
the plat "is a correct plat" means, in substance, that the
land is correctly platted and laid off, and is a sufficient
affidavit under this section. Timothy v. Chambers, 85 Ga.
267, 11 S. E- 598.
Same — Clerical Error.- — A mere clerical error in the sur-
veyor's affidavit will not invalidate the homestead papers.
Baldwin Fertilizer Co. v. Merrit, 101 Ga. 387, 29 S. E- 18.
Affidavit Necessary. — The county surveyor's return with
simply his certificate that he had correctly platted and laid
off the homestead lands, in the absence of his affidavit re-
quired by this section to that fact, was not sufficient to
authorize the ordinary to approve the homestead. Mabry
v. Johnson, 85 Ga. 340, 11 S. E. 771.
Presumption that Affidavit Made.— "When it is shown
that no affidavit of the surveyor was attached, the law will
presume nevertheless that the proper affidavit was made."
Dunagan v. Stadler & Co., 101 Ga, 474, 480, 29 S. E. 440.
Supplying Affidavit by Amendment. — The omission of the
surveyor to make affidavit to the correctness of the plat
and the value of the premises, may be supplied by amend-
ment. Burns v. Chandler, 61 Ga. 385.
Homestead Granted Before Return Made. — Where a bill
was brought to recover certain property as being a home-
stead, and the proceedings exhibited thereto showed that
the ordinary had set apart the lands as a homestead be-
fore the surveyor had made his return and before he had
sworn to the same, the bill was properly dismissed on de-
murrer. Falls v. Crawford, 76 Ga. 35.
Attacking Homestead Papers. — A defendant having pur-
chased, with the approval of the ordinary and knowledge of
the homestead title which he bought, will not be heard to
attack the homestead papers for want of regularity in the
petition or plat, or in regard to the surveyor who acted in
laying off and returning the homestead. Brown v. Drig-
gers, 62 Ga. 354.
Proper Order Presumed. — As against a creditor who was
duly served with notice of an application for a homestead,
filed and approved in 1885, it will, though the homestead
proceeding does not so disclose, be presumed that a proper
order to the surveyor to lay off and plat the homestead was
granted; nor as to such creditor will a homestead so ap-
proved be treated as invalid because the plats of two lots
composing the same "did not purport to be made by the
county surveyor and were not sworn to, accompanied by
an affidavit as the law requires." Dunagan v. Stadler &
Co.. 101 Ga. 474, 29 S. E. 440.
Fixing Valuation. — It is not incumbent on the applicant
for a homestead to fix the valuation of the real estate
sought to be set apart. This duty devolves upon the sur-
veyor, his valuation being subject to review by appraisers.
Wood & Bro. v. Collins, 111 Ga. 32, 36 S. E- 423.
§ 3385. (§ 2835.) Application for homestead,
how approved, etc. — If, at the time and place ap-
pointed for passing upon said application* no ob-
jection shall be urged by any creditor of the ap-
plicant, the ordinary shall indorse upon said sched-
ule and upon said plat: "Approved this the
day of , 18 — ," filling the blanks, and shall sign
the same officially, and hand the same to the clerk
of the superior court of his county, and when land
out of his county is exempted, the ordinary shall
transmit a certified copy of the homestead to the
[922]
§ 3386
SURVEYOR'S RETURN AND APPLICATION
§ 3388
:lerk of the superior court of each county in
which exempted land is situated, each of whom
shall record the same in a book to be kept for
:hat purpose in his office, which record or a certi-
ied transcript of same shall be competent evi-
dence in all the courts of this State. Acts 1898,
3. 51; 1877, p. 18.
See 6 Cum. Dig. 38; 6 Enc. Dig. 56. See also, § 3388.
In General. — Among other requisites to constitute a valid
judgment setting aside a homestead to the head of a family,
:he ordinary shall endorse his approval upon the schedule
}f property, and upon the plat of the surveyor. Larey v.
Baker, 85 Ga. 687, 11 S. E- 800; King v. King, 143 Ga. 385,
588, 85 S. E. 95; West v. McWhorter, 141 Ga. 590, 81 S. K.
*59; Cook v. Hendricks, 146 Ga. 6i, 90 S. E. 383.
But the application need not be approved. Larey v.
Baker, 85 Ga. 687, 11 S. E. 800.
Presumptions. — Liberal presumptions are indulged in favor
)f the regularity of homestead proceedings. A proper
>rder to the surveyor will be presumed where the ordinary
las approved the plat returned to him; and approval of the
'homestead" means substantially approval of the plat and
he schedule conformably to this section. Timothy v.
Cambers, 85 Ga. 267, 11 S. E- 598.
Establishing Lost Papers. — The original schedule and plat
ire private papers and, if lost, may be established by the
iuperior court where they had been approved and recorded.
Paschal v. Turner, 116 Ga. 736, 42 S. E. 1010.
Proof being made by complainants of the loss of the origi-
lal homestead papers by depositions of the head of the
amily, and of the clerk of the superior court and ordinary,
i certified copy from the clerk's office was properly ad-
nitted. Brown v. Driggers, 62 Ga. 354.
Original Papers as Evidence. — The original homestead
>apers, not the record of them from the clerk's office, were
>roper evidence. Larey v. Baker, 85 Ga. 687, 11 S. E. 800.
Certified Copy as Secondary Evidence. — See notes to §
J799.
Record by Clerk. — Under this section the application as
veil as the schedule is to be recorded by the clerk. Paschal
r. Hutchinson, 119 Ga. 243, 46 S. E. 103.
"The homestead papers do not become muniments of
itle of those' interested in the homestead until they have
)een duly recorded in the office of the clerk of the superior
:ourt." Paschal v. Hutchinson, 119 Ga. 243, 245, 46 S. E.
03.
§ 3386. (§ 2836.) Objections, how and when
nade. — Should any creditor of the applicant de-
;ire to object to said schedule, for want of suf-
iciency and fullness, or for fraud of any kind, or
o dispute the valuation of said personalty, or the
>ropriety of the survey, or the value of the prem-
ses so platted as the homestead, he shall, at said
ime and place of meeting, specify the same in
vriting. Acts 1868, p. 28.
See 6 Enc. Dig. 51.
Creditor Concluded by Judgment. — A creditor is not
>bliged to contest the right of a debtor to a homestead on
my other grounds than those stated in this section, but
f he appears voluntarily and raises questions which the
>rdinary would not otherwise have power to pass upon, and
hey are passed upon, he will be concluded by the judg-
nent. Patterson v. Wallace, 47 Ga. 453. See also. Harris
r. Colquitt, 44 Ga. 663.
Insufficient Description in Schedule.— The schedule filed
'y the applicant for homestead and exemption, should de-
scribe^ the personal property, with reasonable certainty.
But if the creditor failed to appear and object, on the
ground that the schedule was insufficient, and it gives a
general description of the property, and no fraud or un-
airness is alleged or shown, the creditor will not be per-
nitted to attack the judgment of the ordinary setting it
mart, collaterally, in a claim case, on the ground that the
schedule was not sufficiently descriptive. Bartlett v. Rus-
sell, 41 Ga. 196.
Objection that Articles Omitted from Schedule.— A cred-
tor who files objections to the allowance of an exemption
ni ^ the ground that specified articles of personalty were
Knitted from the schedule, should on the trial be confined
:o the articles mentioned in his objections, and should not
)e allowed to show by evidence that other articles of per-
sonalty were omitted from the schedule. Wood & Bro. v.
Collins, 111 Ga. 32, 36 S. E. 423.
An amendment to objections, which merely in loose and
general terms alleged that the head of the family owned
property not scheduled, some of which consisted of debts
owing to him by persons unknown to the objector, withou'.
further specifying or describing the property charged to
have been omitted, was properly disallowed for want of
fullness and certainty in these respects. Wood & Bro. v.
Collins, 111 Ga. 32, 36 S. E. 423.
Objectors Entitled to Opening and Conclusion. -Where an
application for an exemption of personalty was made, and
creditors of the applicant objected thereto on the ground
of fraud, and the case was carried to the superior court by
appeal, on the trial, the objectors were entitled to the open-
ing and conclusion. McNally v. Mulherin, 79 Ga. 614, 4
S. E- 332.
When Appeal and Certiorari Lie. — An appeal to the su-
perior court from the judgment of the ordinary, in setting
apart or refusing to set apart a homestead, lies only where
the objections interposed by creditors of the applicant are
those provided for in this section. When objections other
than those specified in this section are filed, the judgment
of the ordinary is reviewable by certiorari, and appeal is
not the remedy. Fontano v. Mozley & Co., 121 Ga. 46, 48
S. E. 707.
Ruling of Referee as Res Adjudicata. — See note of In re
Frostey, 252 Fed. 199, under § 3380.
§ 3387. (§ 2837.) Surveyor's return to be made,
when. — In all cases the return of the surveyor, as
required by law, shall be made to the ordinary at
least five days before the time appointed for pass-
ing upon the application for exemption, in which
he shall state, on oath, the value of the realty
platted by him for exemption; and it shall be a
valid ground of objection to the propriety of any
survey, that the same has been so made as to un-
justly or needlessly injure the value of any land
left unexempted, iby a disregard of the shape and
location of the entire tract. Acts 1878-9, p. 99.
See §§ 3384, 3419 and notes thereto.
Time to Investigate. — That the return of the surveyor on
an application for homestead appeared to be on the day
set for the hearing would have been good ground for al-
lowing time to investigate the return, but did not render
the proceeding void. Especially not at the instance of one
who bought the land at a sheriff's sale, subject to the pend-
ing application for homestead. Roberts v. Cook, 68 Ga. 324.
§ 3388. (§ 2838.) Appraisers and appeals. —
Upon objection made as provided for in section
3386, unless the applicant shall so alter said
schedule or plat, or both, as to remove said ob-
jections, said ordinary shall appoint three disin-
terested appraisers to examine the property con-
cerning which the objections are made, and to
value the same, and on their return (which shall
be made under oath), if either be found to be too
large, such alterations shall be made in such
schedule, and in such plat, as the ordinary may
deem proper to bring the same within the limits
of the value allowed by the Constitution, and he
shall then and there approve said schedule and
said plat as required by section 3385 of this Code,
and hand the same to the clerk of the superior
court of his county, who shall record the same as
required by said section 3385. Either party dis-
satisfied with the judgment shall have the right
to appeal under the same rules, regulations, and
restrictions as are provided, by law in cases of ap-
peal from the court of ordinary. Acts 1868, pp.
28. 29.
As to appeals from court of ordinary, see § 4999.
De Novo Investigation on Appeal. — ■ When an appeal is
taken from the judgment of the ordinary in allowing or re-
fusing a homestead under this section, the whole cause is
brought up by the appeal, and either party may, in the
appellate court, raise any objections or make any motion in
relation thereto, authorized by law, as in other appeal cases
from the Court of Ordinary. Lynch v. Pace, 40 Ga. 173.
Upon appeal from the judgment of the ordinary setting
apart a homestead of realty and personalty exemption, it
923 ]
§ 3389
RIGHTS OF WIFE AND CHILDREN, HOW PROTECTED
§ 3392
is error in the court to restiict the jury to find for or against
the homestead, etc., as platted; the whole case comes up by
the appeal, and the court should administer the law with re-
gard to its terms and provisions. Rirtland v. Davis, 43 Ga.
319.
Certiorari.— The Superior Court has jurisdiction to correct
errors by a writ of certiorari to the judgment of the ordi-
nary, allowing a homestead. L,athrop v. Soldiers' Eoan, etc.,
Ass'n, 45 Ga. 483.
An appeal does not lie to the superior court from a judg-
ment rendered by the ordinary sustaining a demurrer to an
application for a homestead. In such a case the exclusive
remedy for reviewing the judgment is by certiorari. Cun-
ningham v. United States Sav., etc., Co., 109 Ga. 616, 34 S.
E- 1024.
Amending Petition. — The applicant may amend his petition
by inserting a new right on appeal to the superior court.
Young v. Brown, 45 Ga. 552.
Conclusiveness of Return and Approval. — A return of ap-
praisers and approval of the ordinary unappealed from, is
conclusive upon the applicant. Thrasher v. Bettis, 53 Ga.
407.
Value or Number of Acres. — On appeal, it is discretionary
with the jury to sustain the ordinary in value or number of
acres for homestead. Crawford v. Ward, 49 Ga. 40.
SECTION 5.
Town Property.
§ 3389. (§ 2839.) Town property, how ex
empted. — If the applicant seeks to have an ex-
emption set apart out of town property, exceed-
ing in value the amount of exemption which he
claims, and to which he may be entitled in realty
to complete his legal exemption, and it can not
be so divided as to give an exemption of that
value, the ordinary may pass an order that,
should said property (describing the same) Ibe
thereafter sold by virtue of any order, judgment,
or decree of any court in this State, so much of
the proceeds of such sale as may be necessary to
make up, when added to his other exempted
property, if any, the full amount of the exemption
allowed by this Article shall be, by the officer
making sale, paid over to the ordinary, to be in-
vested, 'by some proper person appointed by the
ordinary, in property selected by the applicant,
which shall constitute the exemption of said ap-
plicant, or a part thereof, as the case may be,
when said order and the deed of reinvestment
shall have been recorded by the clerk of the su-
perior court. Acts 1868, p. 29; 1876, p. 48; 1878-9,
p. 99.
See § 3420.
Certiorari is the remedy to correct errors in proceedings
under this section. Lathrop v. Soldiers' Eoan, etc., Ass'n, 45
Ga. 483.
§ 3390. (§ 2840.) Liability of ordinary and
other officers. — Should any ministerial officer of
this State, upon being shown a certified, copy of
the order of the ordinary mentioned in the pre-
ceding section, fail to retain and pay over to
said ordinary said proceeds, as are required in
said section, or should any ordinary receiving the
same fail to appoint said person to have the same
invested and turn over the proceeds to him, said
officers and their securities, respectively, shall be
liable to said applicant for said money, and
twenty per cent, interest thereon, while they, re-
spectively, wrongfully withhold the same, or any
part thereof. Acts 1868, p. 29.
See § 3421.
SECTION 6.
Exemption of Money.
§ 3391. (§ 2841.) Cash, how exempted.— When
any person applies for exemption of personalty,
and said personalty sought to be exempted con-
sists wholly or in part of cash, before the same
shall be allowed finally, it shall, under the direc-
tion of the ordinary, be invested in such articles
of personal property as the applicant may desire,
and when so invested and returned -by schedule,
with or without other property, as the law re-
quires, shall constitute the exemption of person-
alty, and in no case shall the allowance of cash
without such investment be a valid exemption.
Acts 1870, pp. 70, 71; 1875, p. 21,
Cross References. — See 6 Enc. Dig. 28. As to husband as
head of family, see § 2992. As to acquisitions of wife living
separate from husband, see § 2995.
Short Homestead. — This section does not seem in any way
to refer to the "short homestead" allowed under § 3417 and
there is no provision of law allowing the exemption of cash
or the investment of cash for the use of a family under that
section. Rosser v. Florence, 119 Ga. 250, 252, 45 S. E. 975.
Creditor Holding Waiver. — This section does not deal with,,
and does not affect, the rights of creditors under homestead
exemptions holding a waiver. Posey v. Rome Oil, etc., Co.,
157 Ga. 44, 52, 121 S. E. 205.
Damages Recovered for Conversion of Exempt Personalty.
— A converting creditor has no right to demand the in-
vestment of damages recovered for the conversion of exempt
personalty. They should be paid to the beneficiaries of the
homestead. Harrell v. Harrell, 77 Ga. 130, 3 S. E. 12.
Interest in Judgment. — This section is not applicable in a
case where the property exempted was an interest owned
and held by the debtor in a judgment. Such an interest is
not cash. Johnson v. Redwine, 105 Ga. 449, 33 S. E. 676.
Partnership Money in Receiver's Hands. — No member of
a partnership is entitled to an exemption out of money .aris-
ing from a sale of personal property by a duly appointed
receiver, as against a judgment or decree founded on. a firm
waiver note. Hahn & Co. v. Allen, 93 Ga. 612, 20 S. E. 74.
Under this section the share of a partner in money in the
hands of a receiver of the partnership, can not be exempted
for such partner until receivership expenses are paid. Hahn
& Co. v. Allen, 93 Ga. 612, 20 S. E. 74.
Bankrupt Court — It is probable that the bankrupt court,
would not feel bound to superintend the investment pro-:
vided for by this section, but, without it, would allow an
exemption of money on hand. In re Friend, 9 Fed. Cas. 82L
This point, however, was not decided and this statement
is pure dictum. Ed. Note.
SECTION 7.
Rights of Wife and Children, How Protected.
§ 3392. (§ 2842.) Homestead to wife when sepa-
rate from husband. — When husband and wife
are in the state of separation, and the minor chil-
dren reside with the wife, or by the law she is en-
titled to their possession, or the court awards them
to her, the wife is the head of the family in the
contemplation of the homestead and exemption
laws, and as respects her separate property may
have it set apart. Acts 1870, p. 71.
Cross References.— See 6 Cum. Dig. 14; 6 Enc. Dig. 18. As
to husband as head of family, see § 2992. As to acquisitions
of wife living separate from her husband, see § 2995.
Separation Necessary. — A married woman can not have a
homestead set apart out of her own property under this sec-
tion unless she is living separate and apart from .her hus-
band. Bechtoldt v. Fain, 71 Ga. 495; Williams v. Webb, 99
Ga. 301, 25 S. E. 654.
Wife as Head of Family. — A married woman could not
take a homestead, out of her own property, as the head of
a family, where her petition showed her husband to have
been the head of a family, and that he refused to take a
homestead, and did not show that the applicant had the care
and support of her children or dependent females of any age,
or even that her husband was unable to support her chil-
[ 924]
3393
RIGHTS OF WIFE AND CHILDREN, HOW PROTECTED
§ 3396
ren and herself out of his property. Robson v. Walker, 74
Ja. 823.
Support of Dependent Females.— One who seeks under the
onstitution of 1877 to have an exemption on the ground
hat he or she has "the care and support of dependent fc-
lales" must apply for the exemption out of his or her own
TOperty. Neither a wife nor a widow can, under this
lause of the constitution, exempt property belonging to the
usband or his estate. Sutton v. Rosser, 109 Ga. 204, 34 S.
0. 346.
A married woman having the care and support of her de-
endent daughters, though not the head of a family, is, lin-
er the present constitution, entitled to an exemption from
;vy and sale of property belonging to her separate estate.
Sparks v. Shelnutt, 99 .Ga. 629, 25 S. E. 853; Johnson v. Lit-
le, 90 Ga. 781, 17 S. E. 294.
Amendment Converting Proceedings. — Where a married
iroman sought an exemption of personalty as the property
tf her husband, alleging that he refused to apply for such
xemption, the proceeding was not subsequently amendable
iy converting it into an exemption of the property as that of
he wife as head of the family, based upon the idea that she
iras living separate from her husband and had a minor child.
)zburn v. Flournoy, 109 Ga. 704, 35 S. E- 139.
§ 3393. (§ 2843.) Husband oar guardian refus-
ng, who may apply. — Should the husband refuse
o apply for the exemption, his wife, or any per-
on acting as her next friend, may do the same,
nd it shall be as binding as if done by the hus-;
>and. Should any trustee or guardian of a fam-
ly of minor children fail to apply for said ex-
:mption, the ordinary may, upon application of
iny next friend for the minors, allow him or her
o act in lieu of .such trustee or guardian, and this
;hail be as binding as if done by the said guard-
an or trustee. Acts 1868, pp. 29, 30.
Cross References. — See 6 Cum. Dig. 14; 6 Enc. Dig. 18.
\s to parties under disabilities in equitable proceedings, see
i 5416.
Sufficiency of Allegations. — Allegations in an application
or homestead in behalf of the applicant and her minor chil-
dren, that she is a resident of the county in which the ap-
jlication is filed, and that her husband, who is a resident
jf the county, refuses to apply, are sufficient to give the
ordinary jurisdiction. Gann v. McGee, 19 Ga. App. 13, 90
3. E. 976; Long v. Bullard, 59 Ga. 355. See also, Blacker v.
Dunlop, 93 Ga. 819, 21 S. E. 135; Hughes v. Purcell, 135 Ga.
174, 68 S. E. 1111.
Alleging Refusal of Husband. — The wife must unequivocally
allege that the husband had refused to make the application.
ft would not suffice to allege merely that the husband
"neglected or refused." Hughes v. Purcell, 135 Ga. 174, 68
S. E. 1111.
Former Application of Husband Dismissed. — Where the
ordinary dismissed an application of a husband without stal-
ing any ground therefor, this did not estop the wife of the
ipplicant from making another application for exemption of
the same and other property at a later date, alleging that
her husband refused to apply. Mozley & Co. v. Fontana,
124 Ga. 376, 52 S. E. 443.
Where a husband was declared a voluntary bankrupt prior
to the application by his wife, the homestead did not protect
the land. Smith v. Roberts, 61 Ga. 223.
When Husband's Assent Presumed. — There being no evi-
dence that the husband appeared before the ordinary and
objected to an application by his wife, by plea or otherwise,
his assent thereto is presumed. Blacker v. Dunlop, 93 Ga.
819, 21 S. E. 135.
Waiving Exemption. — See § 3413 and notes thereto.
§ 3394. (§ 2844.) When sale may be made upon
application of beneficiaries. — Whenever any prop-
erty has been set apart, and the beneficiaries de-
sire the same sold for reinvestment, and the
delbtor fails or refuses to join with the benefi-
ciaries in the application to have it sold for rein-
vestment; or where a divorce has been granted
the wife, and the homestead property sought to
be sold for reinvestment has been awarded to the
wife for the support of the wife and her children,
the proceedings shall be in all respects as bind-
ing upon all parties as if the debtor or husband
[ 925 ]
had joined with the beneficiaries in such applica-
tion. Acts 1894, p. 93.
§ 3395. (§ 2845.) Costs, by whom paid.— In ail
cases, before the approval of the ordinary can be
demanded as hereinbefore provided, the applicant
shall pay to the ordinary the cost of said, pro-
ceedings, including the clerk's cost for recording
the same. He shall be bound for such cost if he
approves the same. If any person filing objec-
tions to said schedule or plat shall fail to have
the same sustained, he shall pay the cost of said
proceedings. Acts 1868, p. 29; 1870, p. 72.
§ 3396. (§ 2846.) Property set apart, how
vested. — Property set apart for a wife or for a
wife and minor children, or for minor children
alone, shall, upon the death of the wife or her mar-
riage, when set apart to her alone, and upon ma-
jority of the minor children or their marriage dur-
ing minority, when set apart for minor children,
and upon the death or marriage of the wife and ma-
jority or marriage of the minor children, when
set apart to wife and minor children, revert to the
estate from which it was set apart, unless sold or
reinvested in pursuance of the provisions of this
Article, when the same provision as to reversion
shall follow all reinvestments, unless the fee
simple is sold as herein provided. Acts 1868, p.
29; 1869, p. 25; 1876, p. 49.
Cross References. — See § 3424 and notes thereto. For full
treatment of termination of homestead, see 6 Cum. Dig. 49;
6 Enc. Dig. 73.
Death of Second Wife Leaving No Issue. — The wife, after
the death of the husband, having continued to enjoy the bene-
fit of the homestead up to the time of her own death was
neither entitled to dower nor to a child's part, and at her
death the property reverted to the husband's estate; and
she having left no child, it descended, by virtue of this sec-
tion, exclusively to the children of the husband by a former
wife. Love v. Anderson, 89 Ga. 612, 16 S. E. 68.
Dependent Females. — Where a man as the head of a
family had set apart to himself as a homestead (under the
constitution of 1868) certain land, his family at that time con-
sisting of a wife and several children, male and female,
and where subsequently all of the children became of age,
and all married except one daughter, who continued to live
upon the land and to derive a support therefrom, upon the
death of the man and his wife the homestead terminated,
and the land was subject to be sold by his administrator
for purposes of administration. Towns v. Mathews, 91 Ga.
546, 17 S. E. 955; Haynes v. Schaefer, 96 Ga. 743, 22 S. E.
327; Jones v. McCrary, 123 Ga. 282, 51 S. E. 349; Bell v.
Carter, 138 Ga. 530, 75 S. E. 638; Vaughn v. Wheaton, 145
Ga. 311, 89 S. E. 210.
In Torrance v. Boyd, 63 Ga. 22, it was held that the
homestead did not terminate so long as the daughters of
the person who procured it, and who were considered as
beneficiaries of it, continued indigent and dependent, and
remained with him, having no other home, and deriving
support from him. In Hall v. Matthews, 68 Ga. 490, the
head of the family was still living, and one of the female
beneficiaries was dependent upon him for support -when the
question as to the continuance of the homestead arose. In
Gresham v. Johnson, 70 Ga. 631, when a man obtained a
homestead his family consisted of himself and one minor
son. He died, and the son became of age. The question
was, whether this terminated the homestead. What was
said in regard to female members of the family for whose
benefit the homestead might be set apart was obiter dic-
tum, as pointed out in Sutton v. Rosser, 109 Ga. 204, 208,
34 S. E. 346, 77 Am. St. R. 367. None of the decisions in.
the cases just above cited conflict with the ruling here
made. Vaughn v. Wheaton, 145 Ga. 311. 89 S. E. 210.
Minor Beneficiary Ignoring Homestead. — Under this sec-
tion the mere fact that a minor who is the sole beneficiary
of a homestead estate does not live upon the property, and
leaves the head of the family to use the proceeds of the
same in such a way as he desires for a period of ten
years, without calling him to account, does not cause the
homestead estate to terminate and become subject to levy
§ 3397
SALE, REINVESTMENT, AND INCOME
§ 3397
and sale as the property of the bead of the family. Sig-
man v. Austin, 112 Ga. 570, 37 S. E- 894.
Sale of Timber Growing on Homestead.— See notes to §
3666. . ,
Reversion of Homestead.— Under this section, homestead
property set apart to a wife, or wife and minor children,
etc., upon the termination of the homestead estate reverts
to the estate from which it was set apart unless it is sold
or reinvested in pursuance of the provisions of the Code.
Griffin v. Griffin, 153 Ga. 547, 113 S. E. 161.
Applied in Dudley v. Griggs, 150 Ga. 153, 103 S. E. 89-
SECTION 8.
Sale, Reinvestment, and Income.
§ 3397. (§ 2847.) Exempted property, how sold
for reinvestment. — 1. Whenever the debtor and
his wife, if any, shall jointly desire the property
exempted, whether real or personal, to be sold
for reinvestment, the application must Ibe made
to the judge of the superior court of the county
where the debtor resides or the property is sit-
uated, unless such judge is disqualified, when ap-
plication may be made to the judge of the su-
perior court of an adjoining circuit, for the sale
thereof, and the judge may upon proper showing,
either in term or vacation, order a sale of the
property, and the proceeds shall be reinvested
upon the same uses.
2. The sale shall operate to pass to the pur-
chaser the entire interest and title of the benefi-
ciaries in the exempted property, and also the en-
tire interest and title owned, before the exemp-
tion was made, by the party out of whose estate
the property was so exempted.
3. The purchaser shall receive the property and
hold the same, as to all liens thereon against the
original debtor, with the same exemption there-
from, and for the same length of time as was al-
lowed to said original debtor before such sale;
and by consent of all lien creditors, the liens of
such creditors may be, by such order, divested
and transferred to such newly acquired property.
4. A trustee or guardian of minor children, for
whose benefit property has been exempted, may
apply for an order of sale under the foregoing
provisions; but all persons interested shall be par-
ties to the proceeding.
5. Said judge shall order the entire proceedings
recorded on the minutes by the clerk of the su-
perior court of the county in which the parties ap-
plying for the order of sale reside, and, where
land is sold, in the county where the land is situ-
ated; and said judge shall have all the power of a
chancellor to provide the means and mode of sale
and reinvestment, as aforesaid.
6. The provisions of this section shall apply to
the sale of any homestead or exemption set apart
under the Constitution of 1868. Acts 1876, p. 49;
1878-9, p. 100.
Cross References. — For full treatment of sale, convey-
ance and incumbrance, see 6 Cum. Dig. 41 et seq. ; 6 Enc.
Dig. 57 et seq. As to sale upon application of beneficiaries,
see § 3394. As to constitutional provision, see §§ 6584,
6590.
To What Homesteads Section Applicable. — This section
applies to all homesteads, as well to those set apart be-
fore as after its passage, and in holding off creditors un-
til the homestead term expires, it carries out the true in-
tent of the constitution. That the debt was created prior
to the passage of the section, gives the creditor no vested
right to subject a so-called reversion in the homestead
property, either before or after a sale made in pursuance
[8
of the section. Van Horn v. McNeill, 79 Ga. 121, 4 S. E.
111.
Strict Construction. — The policy of our law is not to alien-
ate homesteads, and the statutes relating thereto includ-
ing this section will be strictly construed, and the rights
of the purchaser will be closely watched and never en-
larged. Whittle v. Samuels, 54 Ga. 549.
Application by Head of Family — Joining Wife. — It seems,
that where the head of a family applies under this sec-
tion, it is necessary for his wife, if he has one, to join with
him in the application. If he has no wife, he can make
the application alone. Deyton v. Bell, 81 Ga. 370, 380, ?
S. E. 620.
Application by Widow. — A widow, who is the head of a
family, can make application under this section without
joining her children therein. Deyton v. Bell, 81 Ga. 370,
8 S. E. 620.
Application by Trustee or Guardian. — If the application
be by a trustee or guardian for minors, to whom as such
the homestead has been set apart, it is necessary to make
the children parties. Deyton v. Bell, 81 Ga. 370, 8 S. E-
620.
Service where Children Parties. — Where widow's chil-
dren were parties plaintiff in proceedings to sell a homestead
under this section, no service on them was necessary.
Deyton v. Bell, 81 Ga. 370, 8 S. E- 620.
Order of Court. — The head of the family can not legally
sell or, dispose of the exempted property without first ob-
taining an order of court as prescribed by this section.
Powers v. Rosenblatt, 113 Ga. 559, 38 S. E- 969.
Same — Sale Not in Accord with Order. — Where the sale
was not in accord with the terms of the order, the pur-
chaser did not acquire a valid title to the homestead prop-
erty, and it was the right of the beneficiaries of the home-
stead to recover the same, together with mesne profits:
but subject in equity to the right of the purchaser to off-
set against the same so much of the purchase-money paid
to the head of the family; and also to set off against such
mesne profits any additional value to the homestead prop-
erty brought about by reason of permanent improvements
by the purchaser. Taylor v. James, 109 Ga. 327, 34 S. E-
674.
Same — Purchaser Charged with Notice. — An order hav-
ing been granted by the judge of the superior court . au-
thorizing a sale of the homestead for reinvestment and
distinctly providing that it should be sold at a designated
price, one who undertook to purchase such homestead or
a part thereof was chargeable with notice of the terms
embraced in the judge's order. Taylor v. James, 109 Ga.
327, 34 S. E. 674.
Pony Homestead — Pledge to Secure Prospective Loan. —
A pony homestead, by the provisions of this section may
be sold by an order of the judge of the superior court; but
the law does not contemplate the pledging of a homestead
to secure a prospective loan. Powell v. Powell, 159 Ga.
837, 844, 127 S. E. 117.
Adult Heirs Acquiescing in Setting Apart Homestead. —
A widow as the head of a family consisting of. herself and
a minor child, having had a homestead set apart to her in
1872 out of the lands of her deceased husband's estate, and
the adult heirs having acquiesced in the same, and the
lands so set apart having been subsequently sold by order
of the judge in conformity to this section, the purchaser
at such sale acquired, not only the title of the beneficiaries,,
but that of the estate, so as to bar the rights of the adult
heirs and all persons claiming under them, their rights
being transferred to the property in which the proceeds of
the sale were invested. Fleetwood v. Lord, 87 Ga. 592, 13.
S. E. 574.
Alienation by Husband to Wife. — A homestead set apart
in 1877, under the constitution of 1868, for the benefit of a
wife and minor children, was not subject- to alienation by
the husband to the wife any more than to any one else
without an order of the judge of the superior court for
reinvestment, as prescribed in this section. This was true
although at the time of the attempted alienation the wife
was the sole beneficiary of the homestead, the minor chil-
dren having then attained their majority. Love v. Ander-
son, 89 Ga. 612, 16 S. E. 68.
Sale by Wife after Husband's Death. — The supreme
court expressed that it knew of no law which allowed the
wife to sell the homestead after the husband's death,
though the executor of the husband join in the deed and
be authorized by will to do so. Van Dyke v. Kilgo, 54
Ga. 551.
Sale for Purpose of Removing from State. — Where a
homestead was sold under this section for the purpose of
the removal of the family to another state, and the mak-
ing of a re-investment there, the reversionary interest of
the head of the family, in the hands of the purchaser, was
26 ]
3398
LEVY AND SALE, WHEN ALLOWED
§ 3400
abject to levy and sale by a creditor of the former. City
lank v. Smisson, 73 Ga. 422.
Semble, that upon removal of the debtor from the state,
is homestead terminated, and a levy on and sale of the
aversion would carry the entire title. City Bank v. Smis-
m, 73 Ga. 422.
Liens Not Transferred to Property Purchased.— When:
homestead was sold for reinvestment under this section,
nder an order of the chancellor for that purpose, but the
ens of creditors were not transferred to the property pur-
lased, the purchaser of the homestead took it, as to Hen
-editors thereon against the original debtor, with the
ime exemption therefrom, and for the same length ot
me, as was allowed to said original debtor before such
lie. Therefore, after the sale, a judgment creditor could
Dt levy on and bring to sale the property, subject to the.
Dmestead charge or incumbrance, the object being to sell
le reversionary Interest in the hands of the purchaser
ifore the termination of the homestead estate. This case
iffers from those of Skinner v. Moye, 69 Ga. 476, and
ity Bank v. Smisson, 73 Ga. 423; Stephenson v. Eberhart,
l Ga. 116, 3 S. E- 641.
Collateral Understanding between Parties. — Where the
sad of a family and his wife, being the sole remaining
meficiaries of a homestead set apart in land under the
institution of 1868, apply to the superior court under §
190 of the constitution, and under this section, for au-
lority to sell the homestead property at private sale, for
le purpose of reinvestment in other specified real estate,
le applicants for sale will be estopped thereafter from
Moving to set aside the deeds executed between the par-
es, on the ground that there was a collateral understand-
ig between them, not disclosed to the judge, that the ex-
lange of the property would be made merely for con-
enience to enable the grantee of the homestead property
) sell it at a higher price, and, if he failed to make a
.le, that the deeds should be cancelled. Vaughn v.
aughn, 152 Ga. 160-, 108 S. E. 541.
Cited in Pritchett v. Davis, 101 Ga. 236, 28 S. E. 666;
roome v. Davis, 87 Ga. 587, 13 S. E. 749.
§ 3398. (§ 2848.) Rents and profits, how dis-
osed of. — All produce, rents, or profits arising
■om homesteads in this State shall ibe for the
ipport and education of the families claiming
lid homesteads, and shall be exempt from levy
nd sale, except as provided in the Constitution,
xts 1869, p. 24.
See 6 Enc. Dig. 25.
Short Homestead. — The provisions of this section, apply
) the statutory or "short" homestead as well as to the
institutional homestead. Russell v. Gilliland, 19 Ga. App.
'6, 91 S. E. 1065.
Exempted Personalty. — Inasmuch as exempted personalty
rands in all respects on the same footing, under our law,
5 a homestead, and by this section seems to be included
i the latter term, the declaration of the code applies di-
;ctly to property which has been set aside as exempt.
rand v. Clements, 116 Ga. 392, 393, 42 S. E. 711.
The accretions of homestead property are exempt from
:vy and sale under this section. Powers v. Rosenblatt,
13 Ga. 559, 38 S. E. 969; Russell v. Gilliland, 19 Ga. App.
76, 91 S. E. 1065.
Crop Produced by Use of Exempted Personalty and Sup-
lies. — Under this section when cotton has been produced
y the conjoint use of exempted property and supplies fur-
ished by the head of the family and not connected with
uch property, the whole crop so produced is not subject
3 an individual debt of the head of the family. Brand v.
llements, 116 Ga. 392, 42 S. E. 711.
Mortgaging Crops for Supplies. — It was held under this
ection that where a husband and father, after a home-
tead in land has been set apart to him, individually mort-
ages growing crops thereon in order to obtain supplies
o be used in making such crops, the holder of this mort-
age can by foreclosing it against the mortgagor as an
adividual, after the maturity of these crops, subject the
ame to the satisfaction of the mortgage execution. Under
uch circumstances, the crops are not subject to such exe-
ution. Martin v. Davis & Co., 104 Ga. 633, 30 S. E. 753.
Forfeiture.— Where a portion of the land set apart as a
omestead was leased by the head of the family with the
tipulation that if the lessee failed to work it, such lessee
hould pay a certain forfeiture, such forfeiture was part
i the profits of the homestead estate under this section,
varey v. Baker, 85 Ga. 687, 11 S. E- 800.
Debts Due Physician. — Under this section debts due a
>hysician in the earning of which his skill was the princi-
pal factor, and the use of exempted property, such as the
living in a house set apart as a homestead and riding an
exempted horse in paying his physician's calls, were merely
incidents, were not exempt from garnishment on the
ground that they were the proceeds of a homestead and ex-
emption set apart to the physician as head of a family.
Staples v. Keister, 81 Ga. 772, 8 S. E. 421.
SECTION 9.
Levy and Sale, When Allowed.
§ 3399. (§ 2849.) Levy or sale of homestead is
trespass. — Any officer knowingly levying on or
selling property made exempt from sale (except
as provided in the next section) shall be guilty
of trespass, and the wife or family of the debtor
may recover therefor for their exclusive use.
Acts 1868, p. 29.
Cross References.— See §§ 3422, 6583. For full treatment
of sale, conveyance and incumbrance, see 6 Cum. Dig. 41,
6 Enc. Dig. 57. As to what are torts, see § 4403.
Claim May Be Interposed. — Trespass is not the only
remedy. Bartlett v. Russell, 41 Ga. 197.
Trover May Be Brought.— See Greaves v. Middlebrooks,
59 Ga. 240.
Suit by Wife or Family. — Under this section trespass
against an officer for wrongful levy on homestead prop-
erty may be maintained by the wife or family of the debtor
without making the debtor himself a party plaintiff. Mc-
Williams v. Anderson, 68 Ga. 772.
Action Against True Owner. — The fact that one who does
not own land has had it set apart as a homestead, would
give her no right as against the real owner, nor would
she therefore be entitled to recover against him for en-
tering and taking possession of the land. Scott v. Mathis.
72 Ga. 119.
Cited in Gillespie v. Chastain, 57 Ga. 218; Crowley v.
Freeman, 9 Ga. App. 1, 7, 70 S. E. 349.
§ 3400. (§ 2850.) Homestead, how and when
sold by officer. — In all cases when any defend-
ant in execution has applied for and had set apart
a homestead of realty and personalty, or either,
or where the same has been applied for and set
apart out of his property, as provided for by the
Constitution and laws of this State, and. the plain-
tiff in execution is seeking to proceed with the
same, and there is no property except the home-
stead on which to levy, upon the ground that his
debt falls within some one of the classes for
which the homestead is bound under the Con-
stitution, it shall and may be lawful for such
plaintiff, his agent, or attorney to make affidavit
before any officer authorized to administer oaths,
that, to the best of his knowledge and belief, the
debt upon which such execution is founded is one
from which the homestead is not exempt, and it
shall be the duty of the officer in whose hands
the execution and affidavit are placed, to proceed
at once to levy and sell, as though the property
had never been set apart. The defendant in such
execution may, if he desires to do so, deny the
truth of the plaintiff's affidavit, by filing with the
levying officer a counter-affidavit. Acts 1871, p. 43.
Cross References. — For full treatment of sale, convey-
ance and incumbrance, see 6 Cum. Dig. 41, 6 Enc. Dig.
57. See also, § 3423.
Methods of Bringing Homestead to Sale. — Whenever it
is sought to bring any part of a homestead to sale under
a claim or debt for which it is contended the homestead is
liable, such must be done in the manner provided by sec-
tion 3787, or by compliance with the provisions of this sec-
tion. Martin v. Davis & Co., 104 Ga. 633, 30 S. E. 753.
Section Not Applicable to Short Homestead. — The affi-
davit required by this section, in order to authorize a
seizure, under execution, of property set apart as a home-
stead, applies only to homesteads set apart under the pro-
visions of § 3378, and not to property sought otherwise to
[ 927 ]
§ 3400
LEVY AND SALE, WHEN ALLOWED
§ 3404
be exempted. Marcrum v. Washington, 109 Ga. 296, 34 S.
E. 585. , , ,
Necessity for Affidavit.— In order to show that a sale
was legal, it is necessary to prove affirmatively that affi-
davit under this section was in fact filed with the sheriff
before the sale was made. Davis v. Jones, 95 Ga. 788, 23
S. E- 79; Smith v. Youngblood, 23 Ga. App. 640, 99 S. E-
143. . .„ ' , ,
Other cases showing necessity for affidavit will be found
throughout this note, under appropriate catchlines. Ed.
Note- . . ^, «:
Seme— Consent Verdict.— The omission to hie an affi-
davit as provided by this section, did not render the con-
sent verdict and judgment and sale under execution of
part of land in controversy void. Mobley v. Belcher, 144
Ga. 442, 87 S. E. 470.
Same— FL Fa. Not Showing Superior Lien.— Where a
homestead is being levied on, and the fi. fa. fails to show
upon its face a lien superior to the homestead, and where
the plaintiff in fi. fa. has not filed the affidavit required by
this section, the levy is proceeding illegally. Murphey v.
Smith, 16 Ga. App. 472, 85 S. E. 791.
Same— Verdict Declaring Realty Subjects.— Where a ver-
dict declares in terms that certain realty was subject
thereto, and the judgment directs the sale of this realty,
the affidavit prescribed by this section is not essential be-
fore the levy is made. Davis v. Taylor, 103 Ga. 366, 30 S.
E- so- t. 1 • i
Contests of Affidavit.— Before a homestead can be levieu
on under this section the plaintiff, his agent or attorney,
should swear that "there is no property except the home-
stead on which to levy," and that his "debt falls within
some one of the classes (specifying which class) for which
the homestead is bound under the constitution." Brantley
v. Stephens, 77 Ga. 467; Davis v. Jones, 95 Ga. 788, 23 S.
E. 79.
Evidence of Affidavit — Making after Levy and Claim.
—Where the only evidence of the making of an affidavit
prior to the levy was, that the sheriff's entry of levy stated
that it was made "by reason of an affidavit of plaintiff's
attorney that the homestead is subject," this was not suffi-
cient; nor was this cured by the making of an affidavit
after the levy and interposition of a claim, that, to the
best of the knowledge and belief of plaintiff's attorney,
the debt for which the execution issued "is one from which
the homestead is not exempt." In such a case, claim was
a proper remedy to contest the levy and sale of the home-
stead. Brantley v. Stephens, 77 Ga. 467; Smith v. Young-
blood, 23 Ga. App. 640, 99 S. E. 143.
Sale Pending Application. — Where land was sold at
sheriff's sale pending application for homestead; the pur-
chaser at such sale, with notice that such application was
pending, took the property subject to the incumbrance of
the homestead when properly laid off. Kilgore v. Beck,
40 Ga. 293.
Distraint for Rent. — This section does not apply to the
mode of arresting and stopping the process of distraints
for rent. To set up title to property as an exemption or
homestead against them, the proper proceeding is by
claim, not by counter affidavit. Huckaby v. Brooks, 75
Ga. 678.
Debts for PurcFiase-Money. — A homestead is subject to
an execution founded upon a debt contracted for the pur-
chase-money, and the fact that the debt has been trans-
ferred to a third person does not change that liability.
Chambliss v. Phelps, 39 Ga. 386.
An admission that the judgment was for the purchase-
money of the land levied on was fatal to the affidavit of
illegality under this section. Blackwell v. Aiken, 73 Ga. 55.
Where the mortgage, the rule nisi and the rule absolute
all showed that the debt was within the exceptional class
which could subject a- homestead, and was for purchase-
money, an affidavit to that effect, under this section, was
unnecessary. McDaniel v. Westberry, 74 Ga. 380.
Giving Bonds for Title. — Where the vendor of land takes
promissory notes from the vendee for its purchase, giving
to the latter a bond for titles, sues the notes to .judgment
and then makes and files a deed to the vendee for the
purpose of effecting a sale of the land for the purchase-
money under an execution issued from the judgment, the
sale can not be defeated by the vendee having the land
set apart as a homestead; nor is it necessary for the plain-
tiff to file an affidavit under the provisions of this sec-
tion, in order to have the execution proceed. Perdue v.
Fraley, 92 Ga. 780, 19 S. E. 40.
Dismissal of Counter Affidavit. — Under this section an
order dismissing a counter affidavit renders a forthcoming
bond obligatory. Where the property was not forthcoming,
the sheriff could maintain in his own name an action
upon the bond for a breach of the same. Clark v. Horn,
99 Ga. 165, 25 S. E. 203.
Schedule as Evidence. — In an affidavit made under this
section, in order to procure a levy upon exempted realty,
it was averred that the same had been set apart as a
homestead, it was not harmful to the plaintiff in the exe-
cution levied to allow the defendant therein, who had filed
a counter -affidavit based on numerous grounds, to intro-
duce, for the purpose of showing that the property levied
upon had been so set apart, a schedule of exempted per-
sonalty and realty which did not sufficiently describe the
latter. Moore v. Penn, 115 Ga. 796, 42 S. E. 57.
Suit against Sheriff — Burden of Showing Valid Home-
stead.— Where a sheriff, upon being sued for his failure to
levy an execution upon certain personalty when directed
so to do by the plaintiff in execution, pleads, as an excuse
for not having made the levy, that such personalty had
been set apart to the judgment debtor as homestead prop-
erty, the burden is upon him to show that the homestead
exemption in question was a valid one. Johns v. Robinson,
119 Ga. 59, 45 S. E. 727.
The bankruptcy court has no jurisdiction to protect or
enforce against the bankrupt's exemption rights of cred-
itors not having judgment or other lien, whose obligations
to pay, contain waiver of homestead authorized by state
laws. Lockwood v. Exchange Bank, 190 U. S. 294.
Applied in Gillespie v. Chastain, 57 Ga. 218.
§ 3401. (§ 2851.) Counter-affidavit suspends
proceedings. — In cases where such counter-affi-
davit is filed, it shall be the duty of the levying
officer to suspend further proceedings under
such execution, and return the same together
with the two affidavits to the court from which
the execution issued. Acts 1871-2, p. 43.
§ 3402. (§ 2852.) Issue, how tried.— At the firsl
term of the court to which such execution and af-
fidavits are returned, an issue shall ibe formed
upon the same, and tried as in cases of illegality
Acts 1871-2, p. 43.
§ 3403. (§ 2853.) Effect of the finding.— Wher
the finding upon such issue is in favor of tht
plaintiff in execution, it shall be the duty of th(
levying officer to proceed forthwith with the col-
lection of such debt by sale of the homesteac
property, if necessary; and when the finding up
on such issue is in favor of the defendant in exe
cution, it shall operate to release the homesteac
property, without prejudicing any other right o
the plaintiff. Acts 1871-2, p. 43.
§ 3404. (§ 2854.) Other exemptions, not denie<
by this Article. — Nothing contained in this Arti
cle shall be construed to prevent an}' debtor, wh<
does not wish to avail himself of the benefits of thi
Article, from claiming the exemptions allowed b;
section 3416. But no person who shall be allowe<
the exemptions under said section shall take an
benefit under this Article. Nor shall any per
son who shall be allowed the exemptions unde
the law contained in this Article be allowed th
exemption under said section 3416, unless th
homestead and exempted property so elected, i
lost by virtue of a sale under an outstandin
claim, in which event such election shall not ba
an application for a homestead and exemption no
liable to such outstanding claim. Acts 1868, J
30; 1876, p. 50.
Cross References. — For full treatment of property ex
emptible, see 6 Cum. Dig. 18, 6 Enc. Dig. 23. See also, §
3416, 3414.
Option as to Homestead — The insolvent debtor has hi
option, under the provisions of this section, to take th
benefit of the constitutional homestead or to avail him
self of the pony homestead. Powell v. Powell, 159 Ga. 831
844, 127 S. E. 117. See also, Connally v. Hardwick, 6
Ga. 504.
Second Homestead. — Under the provision" of this sectior
[ 928 ]
§ 3405
WA1VKK UK HUMJibThAU RlUriT
§ 3413
where the statutory exemption provided for under § 3416
has been allowed the debtor, he can not thereafter apply
for and have set apart a homestead under the provisions
of §§ 3377 et seq., even though at the time of the last ap-
plication the property previously set apart as an exemp-
tion had been consumed or disposed of. Nor would the
second homestead be valid as a supplemental exemption,
under the provisions of § 3415. Darlington v. Belt, 12 Ga.
App. 522, 77 S. E. 653.
Fi. Fa. for Purchase-Money. — A homestead under the
constitution of 1868 failing as to fi. fa. for purchase-money,
the defendant can not take advantage of exemption as to
fifty acres of land under § 3416. Hollingsworth v. Smith,
45 Ga. 583.
SECTION 10.
Receiver for Excess.
§ 3405. (§ 2855.) Receiver appointed by ordi-
nary, when.- — -Whenever any person shall make
an application for a homestead of realty and ex-
emption of personalty, and it shall appear by the
return of the surveyor that said applicant has and
is the owner of more real estate than under the
law he is entitled to under the provisions of this
Article, it shall be the duty of the ordinary to ap-
point a receiver to take charge of the excess and
sell the same for the benefit of the creditors ot
said applicant, under such regulations as are
hereinafter set forth. Acts 1872, p. 44.
Cross References. — As to when receiver is an officer of
the court, see § 5475. As to bond by receiver, see § 3411.
Appointment by Court. — The receiver contemplated by
this section et seq., should be appointed by the court,
though there be no motion therefor. Mc Williams v. Bones,
84 Ga. 199, 10 S. E- 723.
Wife Applying. — Where the wife applies, with the con-
sent of the husband, in the reason and spirit of this sec-
tion et seq. he is the applicant, and the power to appoint
a receiver of the excess of his property is therein given,
lyandrum v. Chamberlin, etc., Co., 73 Ga. 727.
Time of Appointment. — It is upon the application for
homestead, and not upon its final adjudication, that the
receiver may be appointed, and the creditors are not to be
delayed until the homestead and exemption are finally set
apart. Landrum v. Chamberlin, etc., Co., 73 Ga. 727.
§ 3406. (§ 2856.) Receiver to dispose of excess
of personalty. — When the application of any per-
son for exemption of personalty as now pro-
vided for by law, and the schedule filed by said
person so applying, shall disclose the fact that
said person has and is the owner of personal
property in excess of that to which he is entitled,
the excess shall be turned over by the ordinary
into the hands of a receiver, and said receiver
shall dispose of the said excess for the benefit of
the creditors of said applicant. Acts 1872, p. 44.
§ 3407. (§ 2857.) Sale of realty and disposition
of proceeds. — When a receiver shall have been
appointed as provided in the two preceding sec-
tions, said receiver shall proceed, to advertise the
real estate in the public gazette in which the
sheriff's sales of said county are advertised, once
a week for four weeks, and shall, on the first
Tuesday of the month immediately following the
advertisement, expose the same for sale at public
outcry, and the money arising from the sale of
said property shall be turned over into the hands
of the ordinary for distribution among the several
creditors of said applicant, said distribution to be
made according to the dignity of the claims of the
several creditors. Acts 1872, p. 44.
§ 3408. (§ 2858.) Sale of personalty. — When
the property falling into the hands of said re
ceiver is personal, the same shall be disposed of
in like manner, except that the receiver shall ad-
vertise the same in three of the most public
places of said County for thirty days, but shall
not be required to advertise the same in a public
gazette. Acts 1872, p. 44.
§ 3409. (§ 2859.) Only one receiver. — Nothing
in this article shall be construed to authorize the
appointment of more than one receiver. Acts
1872, p. 44.
§ 3410. (§ 2860.) No sale, when. — If no cred-
itors appear and file their claims before the day
set apart for the sale of said property, said sale
shall not take place, but the property in excess
shall ibe turned over to said applicant. Acts
1872, p. 44.
§ 3411. (§ 2861.) Receiver to give bond. —
When a receiver is appointed under section 3405
of this Code, good bond and security shall be re-
quired of him by the ordinary for the perform-
ance of his duty. Said receiver shall be subject
to rule in the superior court of the county where
appointed, as sheriffs and bailiffs, and shall pay
out moneys received by him, as sheriffs and bail-
iffs, when there are conflicting claims to moneys
in his hands, under rule of said, court, and not
under the order of the ordinary; and when there
are no conflicting claims, the receiver shall settle
all the claims and turn the excess, if any, to the
party legally entitled to the same. Acts 1876, p.
50.
§ 3412. (§ 2862.) Applicant's right to selection.
— The applicant shall be permitted to select the
property to be exempted., not to exceed the
amount now allowed by law. Acts 1872, p. 44.
SECTION 11.
Waiver of Homestead Right.
§ 3413. (§ 2863.) Debtor may waive exemption.
— Any debtor may, except as to wearing apparel
and three hundred dollars' worth of household
and kitchen furniture and. provisions, waive or
renounce his right to the benefit of the exemption
provided for by the Constitution and laws of this
State, by a waiver, either general or specific, in
writing, simply stating that he does so waive or
renounce such right, which waiver may Ibe stated
in the contract of indebtedness, or contemporan-
eously therewith or subsequently thereto in a sep-
arate paper. Acts 1878-9, p. 99.
Cross References. — For full treatment of waiver and es-
toppel, see 6 Cum. Dig. 24, 6 Enc. Dig. 41. As to waiver
of laws, see § 10. As to constitutional provisions, see §§
6584, 6586.
No Estate Conveyed. — The waiver of homestead does not
convey an estate. Norris v. Aikens, 155 Ga. 488, 117 S. E.
248.
Where Homestead Already Set Apart. — A homestead
which has been regularly set apart can neither be waived
nor renounced by the head of the family so as to au-
thorize a levy upon, and sale of, the property so set apart,
under an execution issued upon a judgment rendered
against him. Russell v. Gilliland, 19 Ga. App. 676, 91 S.
E. 1065.
The word "provisions," as used both in the constitution
and this section, means something in condition to be con-
sumed as food, such as meal, flour, lard, meat and other
articles of that kind — articles that need no change in cook-
ing. The section seems to have drawn a distinction be-
tween provisions and hogs, cows, etc. In a subsequent
decision this definition was said to be "too narrow," but
the court said that it was "good and sound authority for
Ga. Code— 30
[ 929 ]
§ 3414
SUPPLEMENTAL HOMESTEAD
the holding that a milch cow is not provisions." Cochran
v. Harvey, 88 Ga. 352, 355, 14 S. E. 580; Hines v. Weich-
selbaum Co., 18 Ga. App. 606, 607, 89 S. E. 1095. In the
latter case it was held that hogs are not provisions, and
in the former case it was held that corn on the ear is
provisions within the meaning of this section. Ed. Note.
Also, it has been held that cotton is not "provisions"
within the meaning of this section. See Posey v. Rome
Oil, etc., Co., 157 Ga. 44, 121 S. E. 205. See also, Butler v.
Shiver, 79 Ga. 172, 4 S. E. 115.
Money. — Under § 6584, of the constitution and this sec-
tion, money, though less in amount than $300, which might
be readily converted into any one of the classes of prop-
erty mentioned in the constitution and laws as exempt,
does not belong to either of them, and is not protected
against the waiver. Posey v. Rome Oil, etc., Co., 157 Ga.
44, 121 S. E. 205. See also, Arnevine v. Beaver, 134 Ga.
377, 67 S. E. 937.
Ins|trument Containing Waiver — Ai^lication. for Credit.
— A general waiver of homestead under this section only
operates in favor of the specific liability referred to in the
waiver of obligation containing the waiver. Such waiver
may be stated in the contract of indebtedness, or con-
temporaneously therewith or subsequently thereto in a
separate paper. But a waiver of all homestead rights, in
an application for a general line of credit, is not effectual
to bar the debtor's right to homestead as against a debt
thereafter contracted. Ragan, etc., Co. v. TafT, 134 Ga.
835, 68 S. E. 579.
Same — Financial Statement. — A waiver of homestead in
a requested statement as to the financial condition of the
head of the family was made contemporaneously with the
offer to buy and its acceptance, and was a valid contract
of waiver. Pincus v. Meinhard & Bro., 139 Ga. 365, 77 S.
E. 82.
Waiver Binds Family — Pendency of Application.— A hus-
band may waive the right of homestead in his property as
against a certain debt, and his waiver will bind his family,
although an application for homestead may at the time be
pending. Jackson v. Parrott, 67 Ga. 210.
Three Hundred Dollars Benefit Must Be Set Apart.— In
order for an exemption of the three hundred dollars worth
of personal property allowed to a debtor under the pro-
visions of the constitution and this section, to be effectual
as against a waiver thereof, the debtor must have such
personal property set apart to him as exempt, in the same
manner that the homestead allowed by the constitution is
set apart. Sasser v. Roberts, 68 Ga. 253; Miller v. Almon,
123 Ga. 104, 50 S. E. 993.
Setting Out Waiver in Pleading. — Under the constitu-
tion of 1877 and this section, a written waiver of exemp-
tion and homestead is good inter se without having the
same alleged in the declaration or summons, judgment or
execution, and is, after judgment, provable, aliunde, whether
the lien of the judgment be general or special, and whether
the waiver be written on the contract or obligation, or on
a separate paper. Flemister v. Phillips, 65 Ga. 676.
Priority. — It was held that, in view of this section, an
assignment of an exemption, before an adjudication in
bankruptcy, prevails over a sale after it is set apart. Saul
v. Bowers, 155 Ga. 456, 117 S. E. 86.
Disposal of Money by Trustee in Bankruptcy. — Where a
trustee in bankruptcy, depositing the bankrupt's money
to his own account or his firm's account, paid to the bank-
rupt the amount set apart as exempt under this section, as
soon as set apart by the referee, creditors of the bankrupt,
holding waivers ineffectual as waivers of the right to an
exemption, could not require the trustee to deposit all
moneys received as trustee in a bankruptcy depository, and
not to disburse any money except on checks approved by
the referee, and thereby require the trustee to redeposit
the money paid out in good faith, though, where an ex-
emption is set apart and money is ordered paid, it ought
to remain long enough in the hands of the trustee to al-
low claimants an opportunity to be heard. In re Barnett,
214 Fed. 263.
Applied in Eevinson v. Rosenheim Shoe Co., 143 Ga. 584,
85 S. E. 764.
§ 3414. (§ 2864.) Debtor may select property
not waived. — In case of such waiver, and the levy
of an execution by an officer of this State, it shall
be the right of the debtor and his wife, if he has
any, to select and set apart, as free from levy and
sale, three hundred dollars' worth of household
and kitchen furniture and provisions. If, when
such selection is made, the plaintiff in fi. fa. is of
opinion that said property is of greater value
than three hundred dollars, he may indemnify the
officer, and require him to proceed with the levy
upon some part of said property, or all if it be in-
capable of division; and it shall then be the right
of the debtor or his wife, if any, to make and de-
liver to the levying officer an affidavit, stating
substantially that the property selected is not of
greater value than three hundred dollars. Said
levy and affidavit shall then be returned to the
next term of the superior court of the county of
the residence of the debtor, to be tried as cases
of illegality, the only issue being the value of the
property selected. And the jury may find gen-
erally for the defendant in fi. fa., when the levy
shall be dismissed, or may find specifically what
portion of said property is of the value of three
hundred dollars, which shall be exempted, and
the balance shall be sold: Provided, that the jury,
or other tribunal trying the issue made by the
levy and affidavit, may assess damages not ex-
ceeding twenty-five per cent, of the value of the
property levied upon, against the plaintiff in exe-
cution, for any levy made, not in good faith for
the collection of the execution, but for the pur-
pose of harassing the debtor. Acts 1878-9, p. 99.
See §§ 3416, 3404. See also, notes to § 3413.
Option. — It is optional to take either the exemption pro-
vided by § 3416, or the exemption declared in this section,
but one can not take both the exemptions. McFarlin
Reeves, 10 Ga. App. 581, 73 S. E. 862.
A constitutional homestead set aside only as provided in
this section, and not as provided in § 3378, has not been
set aside as provided by law. Brown v. Scarborough,
158 Ga. 301, 303, 123 S. E. 605.
§ 3414(1). Mode of setting apart exemption.-
The mode of setting apart said household and
kitchen furniture and provisions shall be as' fol-
lows: Every debtor seeking the benefit of Sec-
tion 3414 of the Code of 1910 and his wife, if any,
shall make out a schedule of their household and
kitchen furniture and provisions, setting out the
items and value thereof, claimed to be exempt,
and return the same to the ordinary of the
county in which said applicant resides, without
making any application for said exemption, and
it shall not be necessary to publish the same in a
gazette. The ordinary shall record the schedule
in a book to be kept by him for that purpose, and
he shall receive for each schedule filed, approved
and recorded the sum of $2.00. Acts 1924, p. 57.
SECTION 12.
Supplemental Homestead.
§ 3415. (§ 2865.) Exemptions may be supple-
mented, when. — It shall be the right of the appli-
cant to supplement his exemption by adding to
an amount already set apart, which is less than
the whole amount of exemption allowed by the
Constitution and laws of the State, a sufficiency
to make his exemption equal to the whole
amount, by resorting to the methods for setting
apart and valuation of the exemptions provided
in this Article. The proceedings shall be in all
respects the same. Acts 1878-9, p. 99.
Cross References. — See 6 Enc. Dig. 57. For constitu-
tional provision, see § 6587.
Definition. — A supplemental homestead is not realty after
personalty, or personalty after realty, but both or either
after both, or one after a previous one of like kind.
Dickinson v. Haralson, 61 Ga. 526. For illustrative cases,
see 6 Enc. Dig. 57.
[930]
§ 3416
PROPERTY EXEMPT FROM SALE
§ 3416
Homestead under Constitution of 1868.— Where a home-
stead was set apart under the constitution of 1868, if it
was not of as much value as the homestead allowed by
the constitution of 1877, after the adoption of the latter, it
could be supplemented and increased to that amount ; but
the additional exemption must be set apart as a supple-
ment to that already granted. The setting apart of a new
homestead is not the granting of a supplement to a former
homestead, and is not valid as such. First Nat. Bank v.
Massengill, 80 Ga. 333, 5 S. F. 100.
Second Homestead. — Under the provisions of § 3404,
where the statutory exemption provided for under § 3416
has been allowed the debtor, he can not thereafter apply
for and have set apart a homestead under the provisions
of §§ 3377 et seq., even though at the time of the last ap-
plication the property previously set apart as an exemption
had been consumed or disposed of. Nor would the second
homestead be valid as a supplemental exemption, under
the provisions of this section. Darlington v. Belt, 12 Ga.
App. 522, 77 S. F. 653.
Power of Bankruptcy Court. — Under this section a court
of bankruptcy had power, under Bankr. Act of 1898, to per-
mit a bankrupt who had been granted the statutory exemp-
tion prior to his bankruptcy, but in property which at the
date of his bankruptcy was of little value, to supplement
the same up to the full value of that allowed by the stat-
ute from any property or funds of the estate, but he could
not be allowed the constitutional exemption. In re Rein-
hart, 129 Fed. 510.
ARTICLE 2.
Statutory or Short Homestead.
SECTION l.
Property Exempt from Sale.
§ 3416. (§ 2866.) Property exempt from sale.—
The following property of every debtor, who is
the head of a family, shall be exempt from levy
and sale by virtue of any process whatever under
the laws of this State, nor shall any valid lien be
created thereon, except in the manner hereinafter
pointed out, but it shall remain for the use and
benefit of the family of the debtor:
1. Fifty acres of land, and five additional acres
for each of his or her children under the age of
sixteen years. This land shall include the dwell-
ing-house, if the value of such house and im-
provements does not exceed the sum of two hun-
dred dollars: Provided, that none of the above
land be within the limits of a city, town, or vil-
lage, and does not include any cotton or wool
factory, saw or grist mill, or any other machinery
propelled by water or steam, the value of which
exceeds the sum of two hundred dollars: And
provided also, that such land shall not derive its
chief value from other cause than its adaptation
to agricultural purposes. Or, in lieu of the above
land, real estate in a city, town, or village, not ex-
ceeding five hundred dollars in value.
2. One farm horse or mule, or in lieu thereof
one yoke of oxen.
3. One cow and calf.
4. Ten head of hogs and fifty dollars' worth of
provisions, and five dollars' worth additional for
each child.
5. Fifty bushels of corn, one thousand pounds
of fodder, one one-horse wagon, one table and a
set of chairs sufficient for the use of the family,
and household and kitchen furniture not to ex-
ceed one hundred and fifty dollars in value.
6. Beds, bedding, and common bedsteads suffi-
cient for the family.
[ 93
7. One loom, one spinning-wheel, and two
pairs of cards, and one hundred pounds of lint
cotton.
8. Common tools of trade of himself and wife.
9. Equipment and arms of a militia soldier, and
trooper's horse.
10. Ordinary cooking utensils and table crock-
ery.
11. Wearing apparel of himself and family.
12. Family Bible, religious works, and school-
books.
13. 'Family portraits.
14. The library of a professional man, in actual
practice or business, not exceeding three hun-
dred dollars in value, and to be selected by him-
self.
15. One family sewing-machine; this exemp-
tion to exist whether person owning said machine
is the head of a family or not, and to be good
against all debts except the purchase-money.
Act 1822, Cobb, 385; Act 1841, Cobb, 389; Act
1843, Cobb, 390; Act 1845, Cobb, 391; Act 1834,
Cobb, 388; Acts 1887, p. 43; Acts 1877, p. 19;
Acts 1876, p. 55.
I. General Note.
II. Paragraph 1.
III. Paragraph 2.
IV. Paragraph 4.
V. Paragraph 5.
VI. Paragraph 8.
VII. Paragraph 14.
Cross References.
For full treatment of property exemptible, see 6 Cum.
Dig. 18 et seq., 6 Fnc. Dig. 23 et seq. As to persons en-
titled to exemptions, see 6 Cum. Dig. 13, 6 Fnc. Dig. 17.
See also, §§ 3404, 6584.
I. GENERAL NOTE.
History. — The exemption now found in this section et
seq. originated in the act of 1822, and has now become a
part of the constitution of 1877. Braswell & Son v. Mc-
Daniel, 74 Ga. 319.
Constitutionality. — The statutory exemption of realty and
personalty which obtained when the constitution of 1868
was adopted, and which are now embraced in this section,
were not abrogated or superseded by the constitution.
Connally v. Hardwick, 61 Ga. 501.
Form of Application. — No form is prescribed for an ap-
plication for an exemption of personalty under this section
et seq., and it is not necessary to set out in the applica-
tion that the applicant is a debtor. Braswell & Son v. Mc-
Daniel, 74 Ga. 319.
Choice of Homesteads. — It is optional to take either the
exemption provided by this section, or the exemption de-
clared in § 3414, but one can not take both the exemp
tions. McFarlin v. Reeves, 10 Ga. App. 581, 73 S. F. 862.
See notes to § 3415.
Who Entitled to Homestead. — The debtor who seeks to
have a homestead set apart for himself and family under
this section must first have a full and complete ownership
and title to the property; it must be entirely his property,
unsaddled with any encumbrance, lien, or condition af-
fecting his title thereto. In re Whitehead, 29 Fed. Cas. No.
17562. See post, this note, "Paragraph 1," II.
Same — Married Woman. — Where a married woman ap-
plies for homestead under this section and the application
or schedule does not affirmatively show that the husband
has refused to make the application, the homestead so
acquired is void. Batson v. Benford, 119 Ga. 256, 46 S. F-
93; Davis v. Lumpkin, 106 Ga. 582, 32 S. E. 626.
The exemption, provided for in this section can not be
taken in property which does not belong to the head of a
family estate i. e., a wife, living with her husband and
children. Bennett v. Trust Co., 106 Ga. 578, 32 S. F. 625.
Same — Widow. — A widow of an intestate whose estate is
insolvent, has no occasion to resort to equity to secure the
exemptions allowed by this section, as, by § 3425, she can
secure them by returning a proper schedule to the ordinary
and having it recorded. Mapp v. Long, 62 Ga. 568.
Title Not Changed. — The court held in Gresham v.
1]
§ 3416
PROPERTY EXEMPT FROM SALE
§ 3416
Johnson et al., 70 Ga. 631, that the setting apart of a
homestead, or the allowance of an exemption under this
section, did not alter or change the title to property ex-
empted, but merely set apart the property for a particular
specified use, and to that extent imposed a charge or in-
cumbrance upon the estate. McDuffie v. Irvine, 91 Ga.
748, 750, 17 S. E. 1028. This ruling was affirmed in Rut-
ledge et al. v. McFarland, 75 Ga. 774. See also, Van Horn
v. McNeill, 79 Ga. 121, 123, 4 S. E. 111; Yeates v. Donal-
son, 147 Ga. 335, 94 S. E-
370, 126 S. E. 272. See
654, 101 S. E. 772.
Description of Property.
465;
ilso.
Tribble >
McNair
State, 33 Ga. App.
. Fortner, 149 Ga.
-In order to be superior to the
title of a bona fide purchaser without actual notice, a statu-
tory or short homestead under this section, must contain
a description of the property sought to be exempted suffi-
ciently definite to impart constructive notice. Harris v.
Hill, 1 Ga. App. 425, 58 S. E. 124. See also, Byrd v. Olm-
stead, 150 Ga. 815, 105 S. E. 480.
Judgments in Tort. — This section does not protect prop-
erty from judgments founded on torts; they apply expressly
and exclusively to judgments founded on contracts. Davis
v. Henson, 29 Ga. 345.
Cash. — There is no provision allowing the exemption of
cash on the investment of cash for the use of the family
under this section. Rosser v. Florence, 119 Ga. 250, 45 S. E-
975.
Reversionary Interest. — The constitution of 1868 did not
and that of 1877 does not contain any provision forbidding
the head of a family to alienate his reversionary interest
in a homestead set apart under the statutory provisions
now embraced in this section and § 3417. Nash v. Peoples
Loan, etc., Co.. 151 Ga. 40, 105 S. E- 641; Yeates v. Donal-
son, 147 Ga. 335, 337, 94 S. E- 465; Carrie v. Carnes, 145 Ga.
184, 186, 88 S. E. 949; Walker v. Hodges, 113 Ga. 1042, 39
S. E- 480.
Exemption Covering Automobile. — See notes to § 3377.
The landlord's special lien for rent upon the crops raised
on the rented premises is superior to an exemption set
apart in such crops under the provisions of this section.
Shirling v. Kennon, 119 Ga. 501, 46 S. E. 630.
The landlord's lien for supplies as provided in § 3348 is in
the nature of purchase-money, and superior to an exemp-
tion of crops set aside under this section. Moseman v.
Comer, 160 Ga. 106, 127 S. E- 406.
Levy and Sales for Purchase Money and Taxes. — See §
3423, and notes thereto.
A warehouseman's lien for storage charges on property
deposited with him is not superior to the exemption rights
established by setting it apart as homestead property un-
der the provisions of this section et seq., although it be
set apart after the accrual of the storage charges. Morrow
Transfer, etc., Co. v. Whitson, 20 Ga. App. 149, 92 S. E. 761.
A mortgage lien given to a merchant for supplies, fer-
tilizer, etc., to enable the mortgagor to make a crop, is not
superior to the statutory exemption allowed under this §
3416, and the personal property so set apart as exempt is
not subject to be seized and sold under an execution issued
on a foreclosure of the mortgage. Jones v. Spillers, 9 Ga.
App. 473, 71 S. E. 777.
Security Deed — Beneficiaries' Interest Not Affected. —
Even though the head of the family, at the time of the
execution of the security deed, may have represented to the
grantee therein that there were no encumbrances on the
land, this would not affect the interests of the beneficiaries
(his family) in the land, nor estop the head of the family
from interposing a claim in their behalf when the land was
levied on under an execution based upon a judgment on a
note secured by the deed. McNair v. Fortner, 149 Ga. 654,
101 S. E. 772.
Personalty Levied on by Distress Warrant. — Personalty
properly exempted under this section, and levied upon by
distress warrant, could not be held subject thereto in the
absence of any evidence to show that it was so. Shiver v.
Williams, 85 Ga. 583, 11 S. E. 876.
Lease by Husband of Property Set Apart by Wife. — Where
upon the refusal of a husband, to apply for and have set
apart out of his property, for the benefit of his wife and
minor children, a homestead of realty, the wife applied for
and had such homestead set apart, a lease executed by such
husband, subsequently to the setting apart of the homestead
and during its existence was void. Pritchett v. Davis, 101
Ga. 236, 28 S. E. 666.
Suit for Conversion of Property. — While an exemption set
apart under this section et seq. is for the use of the wife
and children of the debtor, and for a conversion of such
property, they might have brought an action, the Husband
and father might also sue. Braswell & Son v. McDaniel,
74 Ga. 319.
Recording Schedule Is Ministerial Act. — The act of the
ordinary in receiving and recording a schedule of property
sought to be set aside as a homestead, under this section
is ministerial only, and the validity of such exemption may
be collaterally attacked in a court of competent jurisdiction
in a case involving the right of a plaintiff in execution to
subject the same to the satisfaction of his execution. Mar
crum v. Washington, 109 Ga. 296, 34 ,S. E. 585.
II. PARAGRAPH 1.
See ante, this note, "General Note," I.
This provision must be complied with or the exemption
would be invalid and the land subject to levy and sale by
the creditor. Piedmont Nat. Bldg., etc., Ass'n v. Bryant,
115 Ga. 417, 41 S. E. 661.
Application by Person in Possession. — The head of a family
who, after judgment for a debt has been rendered against
him, has parted with the title to his land by deed of gift,
but has never parted with possession, may still assert the
exemption allowed by this section to arrest a sale of the land
by virtue of the judgment. No present interest or estate
in land beyond that implied in the fact of possession is
requisite to sustain the claim of exemption as against a
debt or lien inferior to the exemption right. Pendleton v.
Hooper, 87 Ga. 108, 13 S. E. 313.
Where tract had upon it a grist-mill, this, prevented it
from being exempt, under this section. Crow v. Whit-
worth, 20 Ga. 38.
Debtor Holding Undivided Interest. — It is not the right
of a debtor who has an undivided one -third interest in a
tract of land containing eighty acres to have set apart
to him, as an exemption, his undivided interest in the land.
Before he can assert his claim to the statutory exemption
provided for in this section et seq., he must bring about a
partition of the land. Sims v. Sims, 122 Ga. 777, 50 S. E-
937.
Conveyance of Land Identified by Evidence. — Under this
section a conveyance of land identified by evidence was
held to be constructive notice to the taker of a deed.
Powell v. Powell, 159 Ga. 837, 127 S. E. 117.
Survey and Record Thereof. — Where, under the provisions
of this section et seq., the head of a family seeks to es-
tablish a homestead estate in his property, which consists
of a tract of land comprising a number of acres greater
than that specifically allowed to be exempted, a survey of
the land to be allowed as a homestead and the record of
such survey are essential to the setting apart of the land
to be protected by the homestead right, and until this is
done, the homestead is not set apart, or the right of ex-
emption established. Branch v. Ford, 99 Ga. 761, 26 S. E-
759.
If the land sought to be exempted is not in a city, town,
or village, and contains less than the number of acres al-
lowed by law, no survey and plat are necessary. Piedmont
Nat. Bldg., etc., Assn. v. Bryant, 115 Ga. 417, 41 S. E- 661.
City, Town or Village Real Estate. — Real estate of more
than $500 value, situated in a city, town, or village, can
not be set apart as a homestead, under this section. Evans
v. Piedmont Nat. Bldg., etc., Assn., 117 Ga. 940.
Same — Investment of Proceeds of Sale. — Where real es-
tate in a town is sold at a sheriffs sale as the property of
an insolvent debtor, the wife of the defendant in fi. fa. is
entitled under this section to have $500 of the proceeds
of the sale invested in a home for herself and family,
against a pre-existing creditor. Maxey v. Loyal, 38 Ga. 531.
III. PARAGRAPH 2.
The word "farm" in the phrase "one farm horse or mule,"
appearing in this section has reference to quality and value,
and was not inserted in the law with a view to prescribing
the kind of work in which the exempted animal was to be
employed. Kirksey v. Rowe, 114 Ga. 893, 40 S. E. 990.
And a horse the value of which does not exceed forty dol-
lars may, though not worked upon a farm but used in run-
ning a dray for the support of the owner and his family, be
exempted from levy and sale under this section. Kirksey v.
Rowe, 114 Ga. 893, 40 S. E- 990.
Recovery of Horse Tortiously Taken. — After a horse had
been exempted under this section, the possession of the head
of the family was for this use and benefit of the wife and
children and if the horse were tortiously taken from his pos-
session, the wife, on behalf of herself and children, could
proceed by possessory warrant to recover it. Tucker v. Ed-
wards, 71 Ga. 602.
IV.
As to what included
PARAGRAPH 4.
in provisions, see notes to § 3413.
V. PARAGRAPH 5.
A half interest in a two-horse wagon can not, under this
section, be lawfully exempted as a "one-horse wagon."
Kirksey v. Rowe, 114 Ga. 893, 40 S. E- 990.
Dentist's Chair. — See note to paragraph 8.
[ 932 ]
§ 3417
HOW SHORT HOMESTEAD SET APART
§ 3420
VI. PARAGRAPH 8.
A dentist's chair is not exempt from levy and sale as a
"common tool of trade," not as a chair suitable for the use
of the family, under this section. Burt v. Stocks Coal Co.,
119 Ga. 629, 46 S. E. 828.
A set of harness does not fall within the descriptive word
"common tools of trade," as used in this section. Kirksey
v. Rowe, 114 Ga. 893, 40 S. E- 990.
Lawyer's Library. — This provision exempting "the com-
mon tools" of the debtor's trade from levy and sale, under
execution, does not extend to a lawyer's library. But see
par. 14. Lenoir v. Weeks, 20 Ga. 596.
VII. PARAGRAPH 14.
See ante, this note, "Paragraph 8," VI.
SECTION 2.
How Set Apart.
§ 3417. (§ 2867.) Mode of obtaining exemption. —
Every debtor seeking the benefit of the preceding
section, or, if he refuses, his wife or any person
acting as her next friend, shall make out a sched-
ule of the property claimed to be exempt, and re-
turn the same to the ordinary of the county,
without making any application for homestead,
and it shall not toe necessary to publish the same
in a gazette. The ordinary shall record the sched-
ule in a book to be kept by him for that purpose;
and when land out of his county is exempted, he
shall transmit the schedule to the ordinary of the
county in which the land is situated, for record
in like manner, and he shall receive for each
schedule filed, approved, and recorded, the sum
of two dollars, and for each and every plat re-
turned by the county surveyor under the follow-
ing section, to be recorded by him in a book
kept for that purpose, the further sum of one dol-
lar. Acts 1898, p. 52.
Cross References. — For full treatment of setting apart
homestead, see 6 Cum. Dig. 30 et seq. ; 6 Enc. Dig. 45 et
seq. See also, notes to §§ 3378 and 3416.
Contents of Schedule. — The schedule filed by an insolvent
debtor, should contain a list of the property which he owned
at the time of filing the same. Johnson v. Martin, 25 Ga.
268.
The schedule of exempt property, required by this section
to be returned to the ordinary and by him recorded, must,
on its face, disclose in express terms or by reasonable impli-
cation, whose property it is that the schedule is meant to
comprehend and secure. Mapp v. Long, 62 Ga. 568.
A schedule of property returned to the ordinary as re-
quired by this section must be of particular property falling
within the classes specified in the statute. A schedule
which purports to be an exemption, wherein no effort is
made to specify any particular property as exempt, but set-
ting forth an exact copy of the entire statute contained in
§ 3416, embracing all the various classes of property which
may be included in a schedule as exempt from levy and
sale, is void. Kendall v. Parker, 146 Ga. 260, 91 S. E- 31.
In a statutory homestead the description of the property
should be sufficiently definite to impart notice of the prop-
erty homesteaded. Arnold v. Faulk, 19 Ga. App. 797, 92 S.
E. 294.
Same — Description Held Sufficient.— See McNair v. Fortner,
149 Ga. 654, 101 S. E. 772.
Amendment to Schedule. — If the applicant fails to describe
the property with sufficient certainty to identify it he may
amend his schedule by giving a sufficiently accurate and
definite description. Redding v. Lennon, 112 Ga. 491, 493,
37 S. E. 711.
A void schedule may be disregarded by an officer, and the
property therein set forth be levied on. Kendall v. Parker,
146 Ga. 260, 91 S. E. 31.
Fullness of Schedule Question for Jury. — See Mims v.
Lockett, 20 Ga. 474.
Wife Obtaining Exemption. — The wife may obtain an ex-
emption under this section where the husband refuses. Con-
nally v. Hardwick, 61 Ga. 501.
Same — Refusal of Husband. — It is essential to the validity
of a schedule filed by the wife for the purpose of having
the property of the husband set apart as exempt, under the
[ 933 ]
provisions of §§ 3416 et seq., that it shall affirmatively ap-
pear in the schedule that the husband refused to file the
same; and if this fact does* not so appear, the schedule,
though recorded, is void, and may be collaterally attacked
in any court of competent jurisdiction in which the creditors
of the husband are seeking to subject the property embraced
in the schedule to the payment of his debts. Hirsch Bros.
& Co. v. Stinson, 112 Ga. 348, 37 S. E. 365; Mutual Benefit
Bldg. Ass'n. v. Tanner, 96 Ga. 338, 23 S. E. 403; Davis v.
Lumpkin, 106 Ga. 582, 32 S. E. 626; Marcrum v. Washing-
ton, 109 Ga. 296, 34 S. E. 585. See also, Sheppard \. Davis.
22 Ga. App. 733, 97 S. E. 262.
Duty of Ordinary. — This section does not require the ordi-
nary to enter his approval on the schedule of property filed
by a debtor seeking its benefit. All that is demanded is
the making out of the schedule of the property claimed to
be exempt, the return of such schedule to the ordinary, and
the recording of the same by the ordinary in a book kept
by him for that purpose. Carrie v. Carnes, 145 Ga. 184, 88
S. E. 949.
Record. — Where land lies in more than one county, the
record must be made in each of the counties where the land
set apart is situated. McLamb & Co. v. Lambertson, 4
Ga. App. 553, 556, 62 S. E. 107.
If there has been a failure on the part of an applicant for
an exemption of personalty under § 3416, to comply with the
law under which the exemption is sought to be made, the
recording of the exemption claimed is a mere nullity and
can not be amended. Stinson v. Hirsch Bros. & Co., 125
Ga. 149, 53 S. E. 1011..
§ 3418. (§ 2868.) Land, how laid off.— Upon ap
plication by a debtor, it shall be the duty ot the
county surveyor (or any other surveyor if there
be no county surveyor) to lay off the land al-
lowed to his family under this law, and to make
a plat of the same, which plat shall be returned
to the ordinary within fifteen days after the appli-
cation is made to the surveyor by said debtor,
and recorded as before provided for schedules re-
turned. Act 1841, Cobb, 389; Act 1843, Cobb,
890; Acts 1870, p. 74; 1878-9, pp. 69, 70.
See 6 Enc. Dig. 55.
Quantity of Land. — This provision does not apply to a case
where the quantity of land owned by the defendant is less
than that exempted. Rogers v. Hawkins, 20 Ga. 200; Con-
nally v. Hardmick, 61 Ga. 501. See also, Pritchard v. Ward,
64 Ga. 446.
Plats Made by Another than County Surveyor. — Under
this section when it is shown that the plats were made by
another than the county surveyor, the law will presume there
was no county surveyor. Dunagan v. Stadler & Co., 101
Ga. 474, 480, 29 S. E. 440.
§ 3419. (§ 2869.) Objections, how tried. —
Should any creditor, for any cause, desire to dis-
pute the propriety of the survey, or the value of
the improvements, upon application to the ordi-
nary and notice to the debtor, the ordinary may
appoint three appraisers to view the survey and
to value the improvements, and, on their re-
turn, the ordinary may direct the surveyor to
make such alterations as shall, in his judgment, be
conformable to law. And it shall be a valid
ground of objection to the propriety of any sur-
vey, that the same has been so made as to un-
justly or needlessly injure the value of any land
left unexempted, by a disregard of the shape and
location of the entire tract. Acts 1870, p. 74:
1878-9, p. 70.
See § 3387.
Appointment of Appraisers. — The appointment by the
ordinary, under this section, of appraisers to view the sur-
vey and value the improvements of realty claimed as ex-
empt, is but preliminary to judicial action, and is not the
subject of appeal to the superior court. Not until the ordi-
nary has adjudicated upon the return of the appraisers is
there matter for appeal. Bangs v. McLeod, 63 Ga. 163.
§ 3420. (§ 2870.) Town property.— If the debtor
owns town property exceeding in value the sum
of five hundred dollars, and it can not be so di-
§ 3421
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3426
vided as to give to his family that amount, he
may give notice to the pfficer levying thereon;
and when the proceeds of the sale are to be dis-
tributed, the court shall order five hundred dol-
lars of the same to be invested, by some proper
person, in a home for the family of the debtor,
which shall be exempt, as if laid off under this
law.
See § 3389.
The notice may be after the levy, but before the sheriff
pays out the money. Ragland v. Moore, 51 Ga. 477.
Sale under Security Deed. — When town property set apart
as a homestead is about to be sold, under a security deed
given by a husband, the debtor's wife can not by giving
notice have proceeds of the sale held up to be invented in
other realtv for a statutory homestead. Evans v. Pied-
mont Nat. "Bldg., etc., Ass'n, 118 Ga. 880, 45 S. E- 693.
Prior Judgments. — Where prior judgments were obtained
against a husband, the wife was later entitled to $500 in
proceeds of town property sold under said judgments.
Maxey v. Loyal, 38 Ga. 531'.
§ 3421. (§ 2871.) Sale subject to incumbrance.—
If, from any cause, the land exempt has not been
laid off, when the remainder is offered for sale,
notice being given of the fact, the purchaser will
buy subject to the incumbrance.
See § 3390.
Pending Application.— If, at the time of the sale of land by
the sheriff, an application be pending for a homestead in
favor of the family of the defendant, and notice thereof be
given at the sale, the purchaser buys under this section
subject to the homestead. Kilgore v. Beck, 40 Ga. 293;
Faircloth v. Johns, 44 Ga. 602.
The illegal sale of a homestead does not divest property
of its character as such. Evans v. Piedmont Nat. Bldg.,
etc., Ass'n, 118 Ga. 880, 45 S. E. 693.
SECTION 3.
Effect of Exemption.
§ 3422. (§ 2872.) Trespass by officer. — Any of-
ficer knowingly levying on or selling ai"^ prop-
erty of a debtor exempt under this law, a sched-
ule of which has been returned as required, is
guilty of a trespass, and suit may be brought
therefor in the name of the wife or family of the
debtor, and the recovery shall 'be for their ex-
clusive use.
See notes to §§ 3399 and 3418. As to what are torts, see
§ 4403.
Collateral Attack. — Under this section where property levied
on is claimed to be exempt as a "pony homestead," the
validity of the exemption may be collaterally attacked.
Marcrum v. Washington, 109 Ga. 300, 34 S. E- 585.
§ 3423. (§ 2873.) Short homestead subject to
purchase-money, etc. — Property exempted from
lev}^ and sale, as provided for in this Article, shall
not be exempt from levy and sale for the pur-
chase-money, or State any county or municipal
taxes. Acts 1874, p. 19.
Cross References. — See 6 Cum. Dig. 21, 6 Enc. Dig. 32, 37.
See also, notes to §§ 3377, 3416. As to how and when home-
stead sold by officer, see § 3400. As to how impounded
animals disposed of and damages assessed, see § 2034.
Prior to this section the statutory homestead provided by
§ 3416 was not subject to a judgment for purchase money.
Hawks v. Hawks, 68 Ga. ,832.
And this section does not affect exemption which had
been set apart before it was passed. Hawks v. Hawks, 64
Ga. 240. Now, property set aside under § 3416 as exempt
from levy and sale is not exempt from levy and sale for
the purchase money, by reason of this section. Moseman
v. Comer, 160 Ga. 106, 127 S. E- 406.
Existing Debts. — This section applies to all exemptions laid
off after its adoption, regardless of the date of the debt on
which the exemption is founded. Harris v. Glenn, 56 Ga.
94; Sparger v. Cumpton, 54 Ga. 355.
Personalty set apart under the law contained in §§ 3416 et
seq. is not subject to levy and sale except for purchase-
money and taxes under this section. Gray Bros. v. Higgs,
18 Ga. App. 22, 88 S. E. 709. See also, Moseman v. Comer,
160 Ga. 106, 127 S. E. 406.
Mortgage. — This section applies to a mortgage executed
for the purchase money of land prior to its passage. Harris
v. Glenn, 56 Ga. 94.
A mortgage lien given to a merchant for supplies, fertilizer,
etc., to enable the mortgagor to make a crop, is not superior
to the statutory exemption allowed under this § 3416, and
the personal property so set apart as exempt is not subject
to be seized and sold under an execution issued on a fore-
closure of the mortgage. Jones v. Spillers, 9 Ga. App. 473,
71 S. E. 777.
The landlord's special lien for rent upon the crops raised
on the rented premises is superior to an exemption set apart
in such crops under the provisions of this section. Shirling
v. Kennon, 119 Ga. 501, 46 S. E- 630.
A landlord's lien for supplies, as provided in § 3348, is su-
perior to an exemption in the crops, set apart under § 3416,
being in the nature of purchase money. Moseman v. Comer,
160 Ga. 106, 127 S. E- 406.
Debt for Fertilizers. — It follows, from this section, that
land exempted under § 3416 is not subject to a debt for
fertilizers used thereon. Wilcox, etc., Co. v. Cowart, 110
Ga. 320, 35 S. E. 283. See also, Watson v. Williams, 110
Ga. 321, 35 S. E. 344.
Lien for Keep of Horse. — In view of this section and §
3416, it was correctly held that a horse upon which a livery-
stable keeper claimed a lien for its keep, but which was
subsequently set apart to the claimant as the head of a
family, was exempt from levy and sale under the lien. Gray
Bros. v. Higgs, 18 Ga. App. 22, 88 S. E. 709.
Warehouseman's Lien. — See notes to § 3416.
§ 3424. (§ 2874.) Exempted property stands for
what uses. — The property exempt under this law
shall be for the use and benefit of the family of
the debtor from whose estate said property has
been exempted and allowed; and upon the death
of the wife, or her subsequent marriage, said
property shall remain for the support and benefit
of the minor children of said debtor, during their
minority. Acts 1880-1, p. 69.
Cross References. — See 6 Cum. Dig. 13, 6 Enc. Dig. 14. As
to absolute estate in specified sum in lien of dower, see §
5256. As to rules of inheritance, see § 3931.
Possession for Whose Use. — The possession of the head of
the family is for the use of the wife and children, and the
wife can recover by possessory warrant property which is
taken from him. Tucker v. Edwards, 71 Ga. 602.
Enjoining Interference with Possession. — A proceeding to
enjoin an interference with the right of possession by the
beneficiaries of property set apart as homestead, may prop-
erly be instituted directly by them. Pritchatt v. Davis, 101
Ga. 236, 28 S. E. 666.
Termination of Homestead. — The exemption of land taken
by a father for the benefit of his minor son, ceases when
the son reaches majority. Blalock v. Denham, 85 Ga. 646,
11 S. E. 1038. See § 3396 and notes thereto.
§ 3425. (§ 2875.) Extends to insolvent estates.
— The exemptions and protections contained in
the preceding sections are hereby extended to in-
testate insolvent estates, in all cases wherein
there is a widow or child of the deceased intes-
tate living. Acts 1865, p. 29.
Resort to Equity by Widow. • — A widow of an intestate
whose estate is insolvent, has no occasion to resort to equity
to secure the exemptions allowed by § 3416, as, by § 3425, she
can secure them by returning a proper schedule to the
ordinary and having it recorded. Mapp v. Long, 62 Ga. 568.
CHAPTER 12.
Interest and Usury.
ARTICLE l.
General Principles.
§ 3426. (§ 2876.) What is lawful interest. —
The legal rate of interest shall remain seven per
centum per annum, where the rate per cent, is not
[934]
§ 3426
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3427
named in the contract, and any higher rate must
be specified in writing, but in no event to exceed
eight per cent, per annum. Acts 1822, Cobb, 393;
Act 1845, Cobb, 393; Acts 1873, p. 52; 1878-9, p.
184.
Cross References- See §§ 3427, 3436, 3437. For complete
treatment of usury, see 11 Cum. Dig. 241, 12 Enc. Dig. 452.
When a question for jury, see 11 Cum. Dig. 257, 12 Enc.
Dig. 516. As to forfeiture of interest, see § 3438. As to rate
greater than five per cent, per month, see § 3444.
Editor's Note.— The acts of 1879, p. 184, fixed the present
rate of interest. Even prior to this date the legal rate was
the same as it is today. (Acts 1873, p. 52). This act however
allowed any rate to be charged if specified instead of limit-
ing the interest when specified to 8 per cent. Under this
section as it now stands seven per cent, is both the legal
and lawful rate while anything over 8 per cent, is not only
unlawful but illegal. State statutes relating to usury, and
prescribing penalties for the charging, reserving, or taking
of usury, have no application to negotiable instruments held
by national banks. The penalty fixed by the United States
Revised Statutes, § 5198 (U. S. Comp. St. 1901, p. 3493),
against national banks for the taking, receiving, or charg-
ing of usury, and the remedy given by act of Congress
against National banks for taking usurious interest are
exclusive. This rule is applicable in all cases where a ne-
gotiable instrument infected with usury is made payable to
such a bank originally, or where it has been discounted by
such a bank and the bank, as holder, is endeavoring to col-
lect the face value thereof with knowledge of the usurious
interest. In this connection, see the following: First Nat.
Bank v. Davis, 135 Ga. 687, 70 S. E. 246; Farmers, etc.,
Nat. Bank v. Dearing, 91 U. S. 29, 23 L. Ed. 196; Reese v.
Colquitt Nat. Bank, 12 Ga. App. 472, 77 S. E. 320; Young
v. First Nat. Bank, 22 Ga. App. 58, 95 S. E. 381. See also,
§ 2366 (165) and note thereto.
Purpose of Section. — The purpose of this section against
usury is at most, only a check on the conscience of the
lender. The necessity to borrow on the one hand, and greed
on the other, prompted the legislature, no doubt, to fix from
time to time a limit of the value of money. This value is
merely arbitrary in the legislative mind. Green v. Equitable
Mortg. Co., 107 Ga. 536, 540, 33 S. E. 869.
Lawful Interest. — Eight per cent is the lawful interest and
if one takes more he forfeits the excess beyond eight per
cent. Partridge v. William's Sons, 72 Ga. 807. Generally
the terms "legal interest" and "lawful interest" have a differ-
ent meaning, the former means the exact rate of interest
named in the statute, while the latter means anything up
to the maximum rate which the law allows. It seems that
the words "lawful interest" mean interest at seven per cent.
Daniel v. Gibson, 72 Ga. 369. If the contract stipulates no
other rate, but if the rate is stipulated and within the law-
ful limit, the words refer to the rate stipulated. Ed. Note.
Substantial Compliance. — The provision of this section is,
in a given instance, substantially complied with, if in fact
the lender does not contract to receive more than eight per
cent, per annum for the use of the principal advanced.
Stewart v. Slocumb, 120 Ga. 762, 763, 48 S. E. 311; Green
v. Equitable Mortg. Co., 107 Ga. 536, 33 S. E- 869.
Provision for Eight Per Cent. Applies Only to Executory
Promise. — This section which provides that a contract to
pay interest in excess of seven per cent, must be in writ-
ing, applies only to a contract containing an executory
promise to pay such excess interest, and does not apply to
a contract where such excess interest has been actually
paid and such payment has been accepted by the opposite
party to the contract in consideration of the latter's promise
to extend the time of payment of the principal sum. Lewis
v. Citizens, etc. Bank, 31 Ga. App. 597.
Distinguishes between Written and Parol Contracts. — This
section merely intended to distinguish between written and
parol contracts, declaring the former effectual and the latter
not. The promise to pay might be so much in a round sum,
provided the statutory limit as to rate was not exceeded.
Green v. Equitable Mortg. Co., 107 Ga. 536, 538, 33 S. E. 869.
Specified Contract Rate Continues after Maturity. — The
rate of interest specified in the contract being eight per
cent, per annum, that rate ran after maturity as well is
before. Neal v. Brockhan, 87 Ga. 130, 13 S. E. 283; Silvey
v. McCool, 86 Ga. 1, 12 S. E. 175.
But where a promissory note contained a promise to pay
the principal, with interest from date at a conventional
rate in excess of that established by law, in the absence of
contract such conventional rate will not extend beyond the
maturity of the note, unless the terms of the note itself
expressly so provide. Sherwood v. Moore, 35 Fed. 109.
Interest on Judgment. — All judgments in this state bear
lawful interest on the principal amount recovered. See §
3432.
Interest Recovered Whether Principal Due or Not. — The
maker of a note having expressly contracted to pay interest
annually, the plaintiff is entitled to recover it when due,
whether the principal is due or not. Ray v. Pease, 97 Ga.
618; Calhoun v. Marshall, 61 Ga. 275, 25 S. E. 360.
The promise of liberal interest, will not justify more than
the legal interest. Weaver v. Chauncey, 43 Ga. 343.
Specification of interest in handwriting of debtor, signed
by the creditor, is sufficient. Wooford v. Wyly, 72 Ga. 863.
To add to the principal interest thereon at an agreed law-
ful rate and give a written obligation for the aggregate,
without expressing the rate itself is a sufficient compliance
with this section which tolerates a limited conventional rate
of interest on condition that the contract be in writing.
Tribble v. Anderson, 63 Ga. 31.
This section speaks of years and not of months. Interest
is to be at the rate of seven per cent, per annum; that is, at
the rate of seven per cent, for 365 days; for a legal year is
365 days. Patton v. Bank, 124 Ga. 965, 968, 53 S. E. 664.
This section prescribes the rate of interest for one year,
and so at the same rate for a longer or shorter period; it
is obvious that when the interest is to be computed in days
or months; it is impossible to follow the prescribed rule
precisely, without taking the fraction of a day; and that is
not required is well settled by the weight of authority.
Patton v. Bank, 124 Ga. 965, 53 S. E. 664.
It has been the practice to consider a contract for money
payable in months to be payable in calendar months, and
to consider a calendar month as the 12th part of a year, and
to compute interest accordingly. Patton v. Bank, 124 Ga.
965, S3 S. E- 664.
Lawful to Include Days of Grace in Computing. — On tak-
ing interest in advance on discounting a note, it is lawful to
include the three days of grace in the computation. Patton
v. Bank, 124 Ga. 965, 971, 53 S. E. 664.
Damages Can Not Exceed Lawful Interest.— No damages
for the mere non-payment of money can ever be so liquidated
between the parties as to evade the provisions of law which
fix the rate of interest. Clarke v. Kay, 26 Ga. 403.
Orders to Pay Money Bear Interest at Seven Per Cent. —
Orders absolute given by the Inferior Courts of the several
counties in this State for the payment of money to other
persons in liquidation of debts due by said courts, draw
interest just as other liquidated demands do, that is, those
where the sum is fixed, ascertained and agreed to be paid,
bear interest at the rate of seven per cent, per annum.
State v. Speer, 33 Ga. Supp. 93.
Interest Recovered from Tax Commissioner. — Where a tax
receiver is paid by the county authorities larger amounts
than are lawfully due him for commissions, and thereafter
refuses to repay the excess, and execution issues against
him and his sureties. Interest at the rate of 7 per cent,
per annum should be collected on the principal. Glynn
County v. Dubberly, 148 Ga. 290, 96 S. E. 566.
Promise to Pay Five Per Cent. Attorneys Fees. — A promis-
sory note which contained the promise to pay seven per
cent interest and five per cent for attorneys fees, if the note
should be collected by suit. The promise to pay the at-
torneys fees is a part of the principal debt. Baxter v. Bates,
69 Ga. 587.
Effect of Repeal of Usury Laws. — After all laws upon
subject of usury were repealed, and before any re-enactment
thereof, it was competent for the parties to increase the
rate of interest upon a pre-existing contract, and to stipu-
late for computing interest at the conventional rate from
any time whatsoever, past, present, or future. Taylor v.
Thomas, 61 Ga. 472; Houser v. Planters Bank, 57 Ga. 95.
Applied in Ver Nooy v. Pitner, 7 Ga. App. 29, 86 S. E-
456; Strickland v. Bank, 141 Ga. 565, 81 S. E. 836; Green
v. Equitable Mortg. Co., 107 Ga. 536, 33 S. E. 869; Mohr-
Weil Lumber Co. v. Russell, 109 Ga. 579, 34 S. E. 1005;
South Georgia Mercantile Co. v. Lance, 143 Ga. 530, 85 S.
E. 749; Loganville Banking Co. v. Forrester, 143 Ga. 302,
84 S. E. 961.
§ 3427, (§ 2877.) What is usury. — Usury is
the reserving and taking, or contracting to reserve
and take, either directly or by indirection, a
greater sum for the use of money than the lawful
interest.
Cross References. — See section immediately preceding and
§§ 3436, 3437. For complete treatment of what constitutes
usury, see, 11 Cum. Dig. 239, 12 Enc. Dig. 452. As to ap-
plication of this section to negotiable instruments held by
national banks, see Editor's Note § 3426. As to building
and loan associations contracts, see § 2893.
Editor's Note. — This section is an enactment of the same
[935 ]
§.3427
INTEREST AND USURY— GENERAL PRINCIPLES
3428
principle contained in § 3436, reference should be made to
that section and the notes thereto.
Substance of Transaction. — It is the duty of the court to
look, not at the form and words, but at the substance of the
transaction. Rushing v. Worsham & Co. 102 Ga. 825, 30 S.
E- 541; Young v. First Nat. Bank, 22 Ga. App. 58, 95 S. E.
381.
Parol evidence may be introduced to show written contract
was a cover for usury. McDaniel v. Bank, 22 Ga. App. 223,
233, 95 S. E. 724.
Intention of Lender. — To constitute usury, it is essential
that there be, at the time the contract is executed, an in-
tent on the part of the lender to take or charge, for the use
of money, a higher rate of interest than that allowed by
law. Bellerby v. Goodwyn, 112 Ga. 306, 37 S. E- 376; Logan-
ville Banking Co. v. Forrester, 143 Ga. 302, 84 S. E. 961.
Same where this is a mutual intent by parties. Union Sav-
ings Bank v. Dottenheim, 107 Ga. 606, 34 S. F- 217.
Price Never Considered Usury.— A person may sell his
credit, his responsibility, his goods or his lands; and if he
deals fairly, he may take as large a price for either as he
can get, and there can be no usury in the case. Rushing v.
Worsham & Co., 102 Ga. 825, 828, 30 S. F- 546.
Usury is interest exceeding the lawful rate for the loan
or forbearance of money, and does not exist where such in-
terest is essentially and honestly a part of the consideration
in the purchase of land, even though it be called for in the
form of a percentage on a principal sum and be called in-
terest. Rushing v. Worsham, 102 Ga. 825, 30 S. E. 541.
Receiving Property in Payment of Lawful Rate. — A
creditor has the right to demand the payment of his debt
with legal interest; and if he receives property the value of
which does not exceed his lawful demand, he has not re-
ceived any usury, although he may have agreed with the
debtor that the property was of greater value than the sum
he was lawfully entitled to exact. First Nat. Bank v. Da-
vis, 135 Ga. 687, 690, 70 S. E. 246.
Return of Corn of Value in Excess of Lawful Rate. — A
contract to return in the autumn an amount of corn more
in excess of that borrowed in the preceding winter than
seven per cent, thereon is not usurious. Easterlin v. Ry-
lander, 59 Ga. 292.
Compound Interest. — Upon a contract to pay interest an-
nually interest is allowed to be recovered on the annual in-
stallments of interest from the time they became due. Cal-
houn v. Marshall, 61 Ga. 275; Ray v. Pease, 97 Ga. 618, 25
S. E. 360; Haley v. Covington, 19 Ga. App. 782, 92 S. E. 297.
For additional cases and treatment of this subject, see 7
Cum. Dig. 572; 7 Enc. Dig. 712; 11 Cum. Dig. 245; 12 Enc.
Dig. 480.
A contract to pay money at a subsequent period, with in-
terest to be paid annually, and if the interest be not paid
annually, then to become principal is valid; it is neither
usurious, unconscionable, or contrary to public policy; and
the Courts will enforce such a contract. If the interest ac-
cruing be not* paid when due, suit may be maintained to
collect it. Scott v. Saffold, 37 Ga. 384.
Same — Lawful to Agree to Pay Attorneys' Fees.— -It is
lawful to contract for interest on interest overdue, and for
payment by the debtor of reasonable attorneys' fees on
sums, both principal and interest, which have to be collected
by suit. Merck v. American Freehold Land Mortg. Co.,
79 Ga. 213, 7 S. E- 265; Young v. First Nat. Bank, 22 Ga.
App. 58, 95 S. E. 381.
Same — Not Specified Legal Rate Charged. — Where certain
notes were made on December 1, 1877, which, contained the
stipulation "for interest after maturity at ten per cent, per
annum, interest to be paid annually, otherwise to become
principal," in counting the interest upon interest, the proper
rate was seven and not ten per cent, the latter rate not
being specified in writing. Neel v. Young, 78 Ga. 342;
Wooford v. Wyly, 72 Ga. 863.
Dues of Members of Building and Loan Associations. — A
member of a building and loan association who has been
advanced money on his shares may undertake, in addition
to paying the legal rate of interest on such money, may
contract to pay dues and premiums for such advancement
on his stock, and also fines, and they do not constitute in-
terest upon the money advanced, therefore, such a contract
is not usurious. Cook v. Equitable Bldg., etc., Ass'n, 104
Ga. 814, 30 S. E. 911. See § 2893.
Agreement of Forbearance Usurious. — If a judgment not
tainted with usury is transferred, and the transferee agrees
with the defendants to forbear its collection for a term of
time, in consideration of usurious interest paid him, such
subsequent agreement is usurious. Troutman v. Barnett,
9 Ga. 30.
A promise to pay two per cent, interest per month if note
isn't paid at maturity is nudum pactum. The past default
of the debtor could not be consideration for a contract to in-
crease the lawful rate of interest which the note bore when
executed. Although in the meantime all restrictions upon
conventional interest had been removed. Shealy v. Toole,
56 Ga. 210.
Excess over Legal Interest for Other Consideration. —
Where an excess over the legal interest is paid for other
good and valuable consideration beyond the mere use of
money, it is not usury. Atlanta Min., etc., Co. v. Gwyn,
48 Ga. 9.
Open Account Closed by Not©.— When a note was given
which stipulated for eight per cent, interest to close an open
account this was not usurious. Stewart v. Slocumb, 120 Ga.
762, 48 S. E. 311; Green v. Equitable Mortg. Co., 107 Ga.
536, 33 S. E. 869.
Requirement that Old Debt Be Paid Off with Usurious
Interest. — Where a lender requires, as a condition precedent
to the making of a loan upon which the maximum legal rate
of interest has been charged, that the borrower discharge
and pay off certain obligations due by the borrower to the
lender together with usurious interest thereon, the transac-
tion is usurious. If one who owes to another a debt infected
with usury obtains from him a loan of money at a lawful
rate of interest, and out of the proceeds thereof actually and
bona fide pays off the old debt with usurious interest,
whether at the time of obtaining the new loan or after-
wards, the new loan is not thereby usurious. If, however,
the new transaction as a whole be merely colorable and used
and designed as a cloak to cover up usury, the new loan is
usurious. Lott v. Peterson, 23 Ga. App. 458, 98 S. E. 361.
Money Borrowed to Pay Usurious Debt. — "Where the
lender of money neither charges nor receives any more
than the legal rate of interest, the fact that the money
was, with his knowledge, borrowed for the purpose of pay-
ing a debt infected with usury due by the borrower to a
third person does not make the loan usurious." Carter v.
Brooks, 144 Ga. 852, 88 S. E- 209; Thompson v. First Nat.
Bank, 99 Ga. 651, 26 S. E. 79.
No Usury When Note Executed. — Notes given when
there were no statutes on the subject of usury, are not
usurious, no matter how much past interest or usury
were embraced in them as part of the principal. Reynolds
v. Neal, 91 Ga. 609, 18 S. E. 530.
Change of Securities Will Not Purge Note of Usury. — A
note given by way of renewing and continuing an original
contract for a usurious loan, the mere change of securities
would not purge it of the usury. Hammond v. Buys, 1
Ga. 416.
Usury in Original Notes Not Purged by Renewal. — If
there was usury in the original loan which was not purged
out when these notes were given, and if that usury is in
them, they are contaminated just as original contract
was, and all payments made in the interval are to be
treated not as payments of usury, but payments made on
original debt. McGee v. Long, 83 Ga. 156, 160 9 S. E-
1107; Archer v. McCray, 59 Ga. 546; Lockwood v. Muhl-
berg, 124 Ga. 660, 53 S. E. 92.
Device to Cover Usurious Agreement.' — The jury were
authorized to find that the action of the defendant, in tak-
ing a deed to the land for which the plaintiff had bar-
gained, and in causing the plaintiff to execute a lease con-
tract and rental notes, upon the payment of which the
land was to be conveyed to the plaintiff was simply a
device to cover an agreement to pay usurious interest.
Kennedy v. Baggarley, 15 Ga. App. 81, 84 S. E- 21.
Same — Ten Per Cent. Interest Under Guise of Rent. —
Where the vendee of property is to pay his vendor ten per
cent, on the purchase money until it is settled in full, un-
der the name of rent, such contract is usurious on its face-
Scofield v. McNaught, 52 Ga. 69.
If money is loaned for the purpose of enabling a borrower
to buy a certain shop, upon an agreement that for the
use of the money the lender shall receive from the borrower
one half of the specified rents from the property, which
amounts to more than the highest legal rate of interest
per annum, the transaction will be usurious. Reese v.
Bloodsworth, 146 Ga. 355, 91 S. E- 120.
§ 3428. (§ 2878.) Plea of usury generally per-
sonal. — The plea of usury is personal; but a
creditor has no right to collect usurious interest
from an insolvent debtor to the prejudice of other
creditors.
Cross References. — In full treatment of right to plead
usury, see 12 Enc. Dig. 501; 11 Cum. Dig. 252. As to what
a plea of usury must set forth, see § 5674. As to ap-
plication of this section to negotiable notes infected with.
usury held by National Banks, see Ed. Note, § 3426.
Personal Privilege. — The general rule, unquestionably is
[ 936 ]
that usury is a personal privilege— a personal plea.
Lilienthal v. Champion, 58 Ga. 158, 163.
It can not be taken advantage of by a stranger to the
usurious contract. No one can plead it but the borrower
and his privies. Long v. Gresham, 148 Ga. 170, 96 S. E- 211;
Zellner v. Mobley, 84 Ga. 746, 11 S. E- 402; Scott v. Wil-
liams, 100 Ga. 540, 28 S. E. 243.
And as a general rule, the debtor is not obliged to claim
its advantages, though he may do so whenever the facts
so authorize. Thomas v. Clarkson, 125 Ga. 72, 77, 54 S.
E- 77.
The case of Jacques v. Stewart, 81 Ga. 81, 6 S. E- 815, is
not to be taken as an authority against the principle that
the right to declare titles made as part of an usurious con-
tract void rests with anyone besides the borrower, his
personal representatives or privies, although a casual read-
ing of that case would lead to that conclusion. There the
record shows both parties claimed title from the same
source, and the contest between the parties was, which
particular sale made by G. the one to S, or the one to J.
conveyed the title, and the court held that J. when the
bill of sale made by G to S was offered as showing title
in the latter, might, in defense of the title conveyed to
him subsequently by G, show that the first bill of sale was
infected with usury and therefore void. Scott v. Williams,
100 Ga. 540, 544, 28 S. E. 243.
Who Is a Privy. — The creditor of a party who makes a
conveyance tainted with usury is a privy. Stone v. Geor-
gia Loan, etc., Co., 107 Ga. 524, 530, 33 S. E- 861.
Creditor Whose Interest is Affected. — While, as an ab-
stract rule of law, the plea of usury is a personal one
which can be set up by the debtor only, yet where the
debtor is insolvent and there is a fund in court to be dis-
tributed, equity will allow one creditor to suggest usury
as to the claim of another, and compel the usurious credi-
tor to write off the usury and receive only the principal
and legal interest. Brooks v. Todd, 79 Ga. 692, 4 S. E. 156;
State v. Georgia Loan, etc., Co., 107 Ga. 524, 33 S. E. 861;
Burgwyn Tobacco Co. v. Bently & Co., 90 Ga. 508, 16 S. E-
216. See also, Pope v. Solomons, etc., Co., 36 Ga. 541, 545.
But, one creditor of an insolvent debtor can not recover
from another usury which has been paid to the latter by the
debtor. This case differs from that of Pope v. Solomons et
al., 36 Ga. 541, where the usury had not been paid, but the
money of an absconding debtor was in the hands of a trustee
to be paid. Singleton, etc., Co. v. Patillo, 78 Ga. 269, 3 S.
E. 253.
Same — Assignor and Privies in Assignment. — Where one
makes an assignment of his entire salary as part of a con-
tract for a usurious loan of money and as security for such
loan, and was therefore void, the right to set up the usury
and have the assignment declared void would rest only
with the assignor, his personal representatives and privies;
and the person owing the salary assigned, when sued there-
for by the assignee, could not do so. Western Union Tel.
Co. v. Ryan, 126 Ga. 191, 55 S. E. 21.
Same — Assignee of Title Bond. — An assignee of a bond for
title can attack in equity a conveyance to one who had ad-
vanced money to complete purchase for usury. First Nat.
Bank v. Rambo, 143 Ga. 665, 85 S. E. 840.
Same — Claimant under Assigned Contract. — If the defend-
ant in execution assigned only his place in the contract to
the claimant, and paid him a valuable consideration to as-
sume his obligation, the claimant could not set up the de-
fense of usury against the plaintiff's vendor. The assign-
ment did not carry with it the right to make a defense of
usury, on which the assignor refused to insist. Benson v.
Gottheimer, 75 Ga. 642.
Same — Trustee in Bankruptcy.— Under this section and §
3304 (authorizing contest of validity of mortgage lien) or the
trustee in bankruptcy can set up usury in a mortgage exe-
cuted by the bankrupt, though reduced to judgment; but
this does not invalidate the mortgage, but would only re-
duce the amount collectible on the fi. fa. Broach v. Mullis,
228 Fed. 551; Eoganville Banking Co. v. Forrester, 17 Ga.
App. 246, 87 S. E. 694.
Same — Petitioning Creditors in Bankruptcy.— Under this
section petitioning creditors in bankruptcy may attack the
validity of a deed by which the alleged bankrupt has con-
veyed to another creditor a valuable part of his estate on
the ground that it is usurious, and the court of bankruptcy
has power to enjoin a sale of the property by the grantee
pending an adjudication of the question. In re Miller, 118
Fed. 360.
Same — Assignee of Insolvent. — Where a judgment creditor,
upon a usurious contract, comes into a Court of Equity
seeking to have his debt satisfied out of the money in the
hands of the assignees, consenting to the sale upon the as-
surance of the trustees, made in ignorance of the usury, that
his claim should be paid, the usury may be set up by way
of answer to the bill— provided a sufficient excuse be ren-
dered why the original debtor did not avail himself of this
defense at law; and if sustained by proof, the judgment
shall be displaced for the usury, and stand only against the
trust fund, for the principal and legal interest due on the
original loan. Nisbet v. Walker, 4 Ga. 221.
Same — Debtor Who Has Had Day in Court. — A debtor
who has had his day in court, will not be heard to attack
the levy of the execution on the ground that his debt was
inflicted with usury. Wilkinson v. Holton, 119 Ga. 557, 46
S. E. 620.
Same — Holder of Security Deed. — Under this section the
plaintiff, by virtue of its security deed, which was subject
to the security deed of the defendant, became the assignee
of right and a privy in interest. As such the plaintiff was
entitled to raise the issue of usury in the transaction be-
tween the defendant and right. Peoples Bank v. Fidelity
Eoan, etc., Co., 155 Ga. 619, 117 S. E. 747.
Same — Judgment Creditors. — Where one holding security
deed obtained judgment, the plaintiff filed and had recorded
a deed to the land and had the land levied on and sold, and
the fund was brought into court for distribution, other judg-
ment creditors whose judgments were older than the one
above mentioned but younger than the deed given to secure
the note, could not attack the younger judgment on the
ground that the deed given to secure the note was infected
with usury. Bush v. Bank, 111 Ga. 664, 36 S. E- 900.
One creditor holding a common law judgment, where the
debtor is involved or unable to pay all his debts, can not
enjoin another creditor in a common law judgment older
than the first, on the ground that the latter has received
from the debtor a sufficient amount of usury to discharge
his existing judgment, and, from that fact, ask a decree,
either that such judgment be declared satisfied, or post-
poned until the senior judgment is paid. Phillips v. Walker,
48 Ga. 55.
Same — Mortgage Creditor. — Where a creditor by mortgage
files his bill alleging that another senior creditor of the com-
mon debtor held but an equitable mortgage, though in the
form of an absolute deed, that by reason of payments of
usury made to him, his debt was nearly settled, and that
he was about to sell to an innocent purchaser; the creditor
may be heard. Brumby v. Bell, 65 Ga. 116.
Same — Purchaser of Whole Title. — The purchaser of prop-
erty which is incumbered with a mortgage lien, who bought
the whole title, and not the equity of redemption merely,
eo nomine, and paid full price for the land, with no deduc-
tion of price on account of the mortgage, may set up usury
in the mortgage, though the mortgage had been foreclosed
as against the mortgagor, and the usurious interest had
been paid before his purchase. Not being a party to the
proceeding to foreclose the mortgage, he is not concluded
thereby; nor is he concluded by the judgment rendered
against the mortgagor on an affidavit of illegality. The
equitable right of the purchaser to set up the usury in de-
fense of his purchase in such a case, depends upon the price
he actually paid — whether a fair and full price, without re-
gard to the mortgage, was paid to the mortgagor, or a de-
duction was made on account of the mortgage— especially
where the mortgagor and vendor is insolvent and has gone
into bankruptcy. Eilienthal v. Champion, 58 Ga. 158.
Same — Person Claiming under Decedent. — Where, as
against one claiming title to land under a deceased person,
the right of a judgment creditor of the estate of the latter
to subject the land tc the satisfaction of the judgment de-
pends upon the validity of a deed made by the deceased
for the purpose of securing the debt upon which such judg-
ment is founded, it is the right of the person so claiming
under the deceased to attack the deed in question as being
void for usury. Ryan v. American Freehold Land Mortg.
Co., 96 Ga. 322, 23 S. E. 411.
Same — Warehouseman. — Where one delivered cotton to an-
other and took the usual warehouse receipt for it, and sub-
sequently assigned the receipt to a third person to secure
the payment of a note bearing usurious interest. The ware-
houseman can not plead usury against the assignee. Zellner
v. Mobley, 84 Ga. 746, 11 S. E. 402.
§ 3429. (§ 2879.) Back interest. — Interest
from date, when stipulated, if the debt is not
punctually paid at maturity, may be recovered:
Provided, interest has not already been included
in the principal amount.
Back Interest as Stipulated Damages. — In a suit upon a
note payable upon time, with interest from date, if not
punctually paid, the back interest is recoverable as stipu-
lated damages. Alexander v. Troutman, 1 Ga. 469.
Judgment May Be Amended to Include Back Interest. —
If on the entering up of a judgment, back interest be not
computed, the judgment may afterwards be amended, under
[ 937 ]
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an order of the court. Alexander v. Troutman, 1 Ga. 469.
Repeal and Re-Enactment of Usury Laws. — After all laws
on subject of usury repealed, and before any re-enactment
thereof, it was competent for parties to stipulate for com-
puting interest at the conventional rate from any time what-
soever, past, present or future. Taylor v. Thomas, 61 Ga.
472.
Quoted in Union Sav. Bank, etc., Co. v. Dottenheim, 107
Ga. 606, 34 S. E. 217.
§ 3430. (§ 2880.) Lex loci. — Every contract
bears interest according to the law of the place of
the contract at the time of the contract, unless up-
on its fact it is apparent that the intention of the
parties referred the execution of the contract to
another forum; in this case, the law of the forum
shall govern.
See § 8. For thorough treatment of this section, see 3
Enc. Dig. 243; 3 Cum. Dig. 804. As to place of perform-
ance of contract and examples of how determined, see 12
Enc. Dig. 244.
Contract Governed by Place Where It Is to Be Performed.
— The general rule that the interest which a contract shall
bear is to be governed by the law of the place where it is
to be performed, applies to contracts legal where made.
Martin v. Johnson, 84 Ga. 481, 10 S. E- 1092.
On contracts made in one state to be performed in an-
other, if they bear interest, the law of the state where they
are to be performed governs rate of interest to be paid.
Vinson v. Piatt, 21 Ga. 135.
Georgia Contract Determined by Laws of Georgia. — The
notes sued on in this case, considered in connection with the
deed given to secure the same, the other documents in evi-
dence and all the facts proved, were Georgia contracts; and
the question whether or not these notes were affected with
usury were properly determined with reference to the laws
of this state. Howard v. Davis, 145 Ga. 580; Stansell v.
Georgia Loan, etc., Co., 96 Ga. 227, 22 S. E. 898.
Location of Contract — Preliminaries Do Not Determine. —
Where the land was located in Georgia and all the papers
executed therein, the mere fact that the negotiations pre-
liminary to the execution of the papers took place in Florida
does not alter the fact that this is a Georgia contract.
First Natl. Bank v. Rambo, 143 Ga. 665, 669, 85 S. E. 840.
Same — Executed and in Payment for Lands in Georgia. —
Where note reserving eight per cent interest was made
payable in another state where six per cent, was the high-
est legal rate, but the note was executed in Georgia, in
payment of lands in Georgia and waiving homestead ex-
emption therein, there being no attempt to evade the laws
of the other state, the parties had in view the law
of Georgia in fixing rate of interest and the note is there-
fore subject to the laws of Georgia. Underwood v. Ameri-
can Mortg. Co., 97 Ga. 238, 24 S. E. 847.
Where a note is payable in another state but executed by
a resident of this state and secured by deed to land in this
State, it is a Georgia contract, and as such will be upheld
as not violative of the usury laws of this state, there being
no evidence tending to show bad faith or any device or
contrivance to evade usury laws of New York. Taylor v.
American Freehold, etc., Co., 106 Ga. 238, 32 S. E. 153.
Odom v. New England Mort. Security Co., 91 Ga. 505, is
not in conflict with the rule that the place where a note is
made and payable generally governs as to the rate of in-
terest etc. It simply rules that the fact that a note bears
the Georgia rate of interest and is secured by a deed of
even date with itself, extended in Georgia and conveying
land situated in Georgia does not overcome the presumption
arising from the face of the instrument that it was to be
governed by New York law. (Ed. Note.)
Same — Same — Stipulation that Contract to Be Construed
as to Laws of Georgia. — Where a note, executed in this
state, is made payable in the state of New York, and is se-
cured by a mortgage which stipulates "that the contract
embodied in this mortgage, and the note secured hereby,
shall in all respects, be construed according to the laws of
Georgia," and the note on its face bears interest at the rate
of 8 per cent, per annum, the same being legal in Georgia,
the entire amount of such interest is collectible in this
state, notwithstanding the maximum legal rate of interest
in the state of New York may be less than 8 per cent. New
England Mortg. Security Co. v. McLaughlin, 87 Ga. 1, 13
S. E. 81.
Same — Executed Elsewhere but Maker and Security in
Georgia. — When a promissory note is made in South Caro-
lina, payable on its face at Charleston, to a citizen of South
Carolina, it is a South Carolina contract, notwithstanding,
at the time of the making of the note, the maker also exe-
cutes a mortgage to secure it on goods situated in Georgia,
the residence of the mortgagor. Goodrich v. Williams, 50
Ga. 425.
Lawful for Borrower to Pay Lawful Interest in His Own
State. — It is competent for the - borrower of money to con-
tract to pay a rate of interest lawful in his own state, the
loan being secured by realty in that state, although he
makes the notes given for the principal and interest of the
loan payable in another state, and although the ultimate de-
livery of the notes and mortgage was made to the lender
at his place of business in the latter state, in which state,
also, the borrower's application for the loan was accepted.
Hill v. American Freehold Land-Mortg. Co., 99 Ga. 87, 24
S. E. 848; Jackson v. American Mortg. Co., 88 Ga. 756, 15
S. E. 812; Raines v. American Freehold Mortg. Co., 94 Ga.
699, 20 S. E. 10.
Common Law Governs Where There Is No Evidence as
to Interest. — Where the evidence is silent as to legal inter-
est in another state the common law is presumed to govern,
and a contract for reasonable interest is allowed. Thomas
v. Clarkson, 125 Ga. 72, 54 S. E. 77; Ellington v. Harris, 127
Ga. 85, 56 S. E. 134.
Contract Made in Foreign State Referable to that State's
Statutes. — Under this section and § 8, it is clearly referable
to the laws of Alabama to determine whether there was
usury in the contract which was made and intended to be
performed in that state. Thomas v. Clarkson, 125 Ga. 72,
54 S. E. 77.
Contract with Foreign Corporation Governed by Laws of
Its Domicile. — Dealings in Indiana with a corporation
chartered by that state, are governed by its laws, and when
attacked here for usury, the provisions of such laws applica-
ble to the transaction must be made to appear. Flournoy
v. First Nat. Bank, 7& Ga. 222, 2 S. E. 547; Flournoy v.
First Nat. Bank, 79 Ga. 810, 2 S. E- 547.
Admissibility of Foreign Statutes. — The fact that the note
was secured by a deed of even date with itself, executed in
Georgia and conveying land situate in Georgia, would not
render the statute of New York inadmissible as evidence
to support the plea of usury. Odom v. New England Mortg.
Security Co., 91 Ga. 505, 18 S. E. 131. See 6 Cum. Dig. 318;
6 Enc. Dig. 286.
Where a statute of another state was pleaded it must be
shown to have been in force at execution of contract.
Thomas v. Clarkson, 125 Ga. 72, 54 S. E. 77.
Court Must Confine Itself to Evidence Introduced. — It is
not permissible for the courts of this State to avail them-
selves of any means of ascertaining what are the laws of
another state on the subject of usury, otherwise than by
the evidence introduced. Craven v. Bates, etc., Co., 96 Ga.
78, 23 S. E. 202. Champion v. Wilson & Co., 64 Ga. 184.
A contract made and to be performed in New York, will
be enforced by the courts of this state according to the
legal status it would occupy in New York, and if illegal
there, it will be held to be illegal here; but the law of that
state must be put in evidence before it can be applied in
this state, and unless in evidence before the superior court
according to the record, the judgment of the superior court
thereon will not be reviewed by this court. Champion v.
Wilson & Co., 64 Ga. 184.
Although promissory notes bearing on their face a greater
rate of interest than six per cent, were executed and made
payable in the state of Tennessee, and it appeared by an
admission in open court that the legal rate of interest in
that state was six per cent., in the absence of any further
evidence as to the laws of Tennessee on the subject of
usury, the courts of Georgia will not hold that these notes
are absolutely void, and will sustain a verdict making a
person who guaranteed their payment liable for the princi-
pal of the notes with interest thereon at six per cent.
Craven v. Bates, etc., & Co., 96 Ga. 78, 23 S. E- 202.
Presumption of Usury in Foreign State. — Where there is
no proof as to statute of usury of another state, there will
be no presumption that the contract is usurious. Rooney
v. Southern Bldg., etc., Ass'n, 119 Ga. 941, 47 S. E- 345.
Must Show Excess of Lawful Rate of Interest in Another
State. — In order for the jury to find that a contract made
in another state and to be performed there, was void for
usury, the evidence must show that the rate of interest
agreed to be taken was in excess of the rate allowed by the
law of such state. Griffin v. Inman, etc., Co., 57 Ga. 370,
371.
Attacking Note Payable in Foreign State. — A promissory
note payable in the city of New York, with interest from
its date at the rate of eight per cent, per annum, is open
to attack for usury by proof that the law of New York
limits the rate of interest to six per cent, per annum, and
declares void all contracts in which any higher rate is
stipulated or reserved. Odom v. New England Mortg. Se-
curity Co., 91 Ga. 505, 18 S. E. 131.
[ 938 ]
§ 3431
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3433
§ 3431. (§ £881,) Interest only from demand,
when. — In the absence of an agreement to the
contrary, interest does not run until default; hence
where money can be recovered because of mis-
take, or other like reasons, no interest runs until
after demand and refusal to refund.
Interest on Deposits in Court. — Where it is necessary for
an allowance of certiorari that a deposit of the fine and
costs for violation of a city ordinance be made, the deposit
does not bear interest until after demand. Savannah v.
Kassell, 115 Ga. 310, 41 S. E. 572.
Interest on Legacy Payable at Discretion of Party. — Where
a legacy was placed in the hands of a person to be paid
when he should think best, the legacy does not bear interest
until after date of demand for payment. Harrison v. Wat-
kins, 127 Ga. 314, 56 S. E. 437.
Money Paid by Mistake. — The general rule is that on
money paid by mistake, where there is no fraud or mis-
conduct by the party receiving it, interest does not run un-
til after demand. Prior to demand by suit or otherwise, the
receiver is in no default. Georgia R., etc., Co. v. Smith,
83 Ga. 626, 10 S. E- 235.
This case is the basis for the above section, and was de-
cided in 1889. (Ed. Note.)
Obtained by Undue Influence. — Where one not having ca-
pacity to contract is induced by undue influence to pay over
money under contract. Interest may be recovered from
date of contract if recovery allowed at all. Newman v.
Thompson, 134 Ga. 137, 67 S. E. 662.
Diversion of Funds in Good Faith. — That the diversion of
funds was made in good faith and with honest intentions
is not sufficient to bring a case within this section. David-
son v. Story, 106 Ga. 799, 804, 32 S. E. 867.
Executor Improperly Retains Fees. — Where an executor
improperly retained attorney's" fees for services rendered
by himself it is proper to charge him with interest from
time such fees were appropriated. Davidson v. Story, 106
Ga. 799, 802, 32 S. E. 867.
Guarantor Liable for Interest. — Where a guarantor agreed
to pay certain sum interest does not run until demand has
been made upon him. Manry v. Waxelbaum Co., 108 Ga.
14, 22, 33 S. E. 701.
Stockholder Liable for Bank Debts — Interest on Same. —
Where a stockholder of bank is liable for its bills, when
sued by a bill holder, he is liable to pay interest from the
time of the demand of payment made on him and not from
time of demand made on bank. Lane v. Morris, 10 Ga.
162, 171.
Interest Allowed from Time of Payment of Husband's
Debts by Wife. — Where a wife did not demand the repay-
ment of the money with which she discharged her husband's
debt until sometime subsequent to its payment, she could
recover interest thereon from the time of its payment. Bank
v. Walters, 135 Ga. 643, 70 S. E- 224.
§ 3432. (§ 2882.) Interest on judgments. —All
judgments in this State bear lawful interest upon
the principal amount recovered.
See § 5936.
Editor's Note.— This section is codified in part from Act
1845, Cobb's Digest, p. 393-4, which declares that the judg-
ment shall bear interest at the same rate as that borne by
the contract, therefore the words "lawful interest" mean in-
terest at seven per cent, if the contract stipulates no other
rate, but they mean the contract rate, if stipulated and
within the lawful limit. See Daniel v. Gibson, 72 Ga. 367,
369.
In General. — A judgment is a liquidated demand of the
highest dignity upon which the creditor is entitled to in-
terest. Executrix of Houston v. Mossman, T. U. P. C. 138.
Interest on Judgment Same as on Original Contract. — The
principles engrafted in our law, make the judgment part of
the original contract, and the same contract right of inter-
est, the measure of damages for not paying the debt after
maturity and after judgment, until paid. Daniel v. Gibson,
72 Ga. 367, 370; Sherwood v. Moore, 35 Fed. 109. And this is,
true as to a note. Livingston Bros. v. Salter, 6 Ga. App.
377, 65 S. E. 60; Neal v. Brockhan, 87 Ga. 130, 13 S. E. 283.
Judgment for Principal and Interest — Interest Runs on
Both.— Judgment on account being for principal and interest,
judgment for the amount of interest as well as for the
principal due on the account at seven per cent, from date
when account came due is proper. Thomas v. Monticellc
Vehicle Co., 10 Ga. App. 260, 73 S. E. 428.
In Trover from Time of Entry. — A judgment in an action
of trover for the gross amount made up of the value of
mules and their hire, bears interest from time of entry.
O'Neil Mfg. Co. v. Woodley, 118 Ga. 114, 44 S. E. 980.
Interest to Be Computed During Dormancy of Judgment.
— In reviving a judgment, interest is to be counted during
the period of dormancy, as well as for the rest of the time.
Wilcher v. Hamilton, 15 Ga. 435.
Administrator Acting as Mere Stakeholder Not Liable for
Interest. — An administrator acting as a mere stakeholder is
not liable for interest on judgment rendered against him
where he did not make the appeal and was at all times
ready to make payment. Truett v. Williams, 101 Ga. 311,
28 S. E. 851.
Judgment for Interest on Principal and Interest. — An objec-
tion that, where the verdict includes both principal and in-
terest in one gross sum, and that unless corrected, the judg-
ment entered thereon would bear interest against the de-
fendant upon both the principal and interest of the balance
of the original debt, is well taken under this section and §
5936, for unless corrected, interest would not only run on
the principal recovered but on the interest. Hubbard v. Mc-
Rae, 95 Ga. 705, 22 S. E- 714; Linder v. Renfroe, 1 Ga. App.
58, 62, 57 S. E. 975.
Judgment against Surety on Supersedeas Bond.- A judg-
ment in an alimony suit against a surety upon a super-
sedeas bond given by the defendant for the "eventual con-
demnation money" may, when the remittitur from the ap-
pellate court is received, affirming the judgment, be ren-
dered for the full amount of all the accrued unpaid install-
ments due at the time of the entering of the judgment upon
the supersedeas bond, which necessarily represents the
eventual condemnation money. Such a judgment bears in-
terest under this section. Luke v. Luke, 32 Ga. App. 738,
124 S. E. 556.
Judgment for Principal in Usurious Loan. — Where usurious
interest is reserved for a loan of money contracted since the
year 1916, and in a suit by the lender against the debtor a
judgment is rendered for the principal amount only, the in-
terest being forfeited by virtue of the provisions of the act
of 1916 (Acts 1916, p. 48.) § 3438(1), providing for a forfeiture
of the entire interest when usury is charged, such judg-
ment does not bear interest. And this is so notwithstand-
ing this section. The act of 1916 prohibits the recovery of
any interest where usury is charged. Tennille Banking Co.
v. Quinn, 156 Ga. 159, 118 S. E. 644.
Money judgments bear interest from their dates of entry
both at law and in equity. Guernsey v. Phinizy, 113 Ga.
898, 901, 39 S. E. 402.
§ 3433. (§ 2883.) Payment, how applied to in-
terest. — When a payment is made upon any debt,
it shall be applied first to the discharge of any in-
terest due at the time, and the balance, if any, to
the reduction of the principal. If the payment
does not extinguish the interest then due, no in-
terest shall be calculated on such balance of in-
terest, but only on the principal amount up to the
time of the next payment.
Cross References. — As to application of this section to ne-
gotiable instruments infected with usury held by national
banks, see Ed. Note § 3426. As to usury how considered,
see § 3460. As to forfeiture pleaded as set-off, see § 3439.
For complete treatment of application of payments, see 9
Cum. Dig. 331; 10 Enc. Dig. 275. For example of application
of payment, see 7 Cum. Dig. 572; 7 Enc. Dig. 708; 9 Cum.
Dig. 336.
In General. — Payments on a usurious debt when not other-
wise directed, will be applied according to this section.
Young v. First Natl. Bank, 22 Ga. App. 58, 64.
But this section does not prohibit a creditor from apply-
ing a payment upon the principal, if the debtor so expressly
directs. And since this section is for the benefit of the
creditor, it does not seem that the debtor could be heard to
complain on account of the interest -bearing principal having
been reduced, with a consequent reduction to him of the
indebtedness, by. an application of the entire payment to the
principal instead of first extinguishing the accrued interest.
Rice-Stix Dry Goods Co. v. Friedlander Bros., 30 Ga. App.
312, 117 S. E. 762.
Right to Recover Interest after Principal Paid. — It is the
general rule that the right to recover interest after the
payment of the principal sum due depends upon whether the
interest is due by the terms of the contract, or whether it
is merely an implied incident to the debt and is allowed by
way of damages. If it is due by the terms of the contract,
the payment of the principal is no bar to a subsequent re-
covery of interest, but if it is not due by such terms, the
payment of the principal sum is generally a bar to re-
[ 939 ]
§ 3434
IJNTJiiKiiSI AJNU UbUKY — UIUNiiKAL, I'KllN Ul Jf L,±^
§ 3434
covery, except that where the obligation is one which by
statute bears interest, this is taken as an equivalent con-
tractual obligation to pay interest, and in such a case the
payment of the entire principal does not defeat the subse-
quent recovery of accrued interest. Rice-Stix Dry Goods Co.
v. Friedlander Bros., 30 Ga. App. 312, 117 S. E- 762.
Proceeds of Sale of Mortgaged Property Go to Payment
of Interest Notes. — Where mortgaged property is sold the
proceeds go to the payment of interest notes, though the
latter may have been transferred by payee. Berie v.
Smith, 97 Ga. 782, 785, 25 S. E. 757.
Renewal of Contract Tainted with Usury Law Applies. —
The novation itself having been rescinded by the parties in
interest, the renewal of the old usurious contract without
purging it of the usury, left it affected still with the taint,
and the law still applied the payments, both prior to and
after the rescission, to the principal and legal interest alone.
Archer v. McCray, 59 Ga. 546; Haskins v. Bank, 100 Ga.
216, 27 S. E- 985; Lankford v. Peterson, 21 Ga. App. 1, 15, 93
S. E- 499. Note that by § 3438(1) of this code, all interest is
now forfeited where the contract is usurious not just the
interest in excess of the lawful rate. Ed. Note.
Quoted in Price v. Comer & Co., 87 Ga. 468, 14 S. E. 122;
Worrill v. Hightower Mule Co. 32 Ga. App. 396, 398, 124 S.
E. 58; Becker v. Shaw, 120 Ga. 1003, 48 S. E. 408.
§ 3434. (§ 2884.) Interest on liquidated demands.
— All liquidated demands, where by agreement
or otherwise the sum to be paid is fixed or certain,
bear interest from the time the party is liable and
bound to pay them; if payable on demand, from
the time of the demand. In case of promissory
notes payable on demand, the law presumes a de-
mand instantly, and gives interest from date. Acts
1858. p. 90.
I. When Interest Allowed.
II. Liquidated Demands.
A. Particular Instances of Liquidated Demands.
1. In General.
2. Accounts.
3. Parties Standing in Fiduciary Relation.
4. Contracts of Hire and Sale.
B. Tender as Affecting Interest.
III. Unliquidated Demands.
IV. Damages Arising from Tort.
Cross References.
As to right of surety to interest on contribution, see §
3565. As to liquidated damages, see § 4390. For examples
of what are liquidated demands, see 7 Cum. Dig. 561, 7
Enc. Dig. 671.
I. WHEN INTEREST ALLOWED.
As to interest on judgments, see § 3432.
The commencement of suit started the running of interest
on note, payable on demand after one year's time after
date. White v. Blasland, 42 Ga. 184.
On Advancements. — Interest can be charged on advance-
ments only from the time they are brought into hotchpot.
Harris v. Allen, 18 Ga. 177.
On Bond Conditional. — Where a bond is given for a certain
sum conditional on the performance of duty — interest can be
recovered only in the shape of damages. The Governor v.
Daniel, R. M. L- 449.
The amount bore interest from the date of the contract
of December 1922, executed by the plaintiff and defendant,
wherein it was recited that the defendant admits and ac-
knowledges that he is indebted to the plaintiff. The de-
mand of the plaintiff then became liquidated, and will bear
interest from that date under the provisions of this section.
Stover v. Atlantic Ice, etc^, Corp., 159 Ga. 357, 125 S. E-
837.
Creditor of a Corporation. — The creditor of a corporation
is entitled to recover interest on the amount due by each
stockholder, from the date of the filing of suit to enforce
ultimate liability. Wheatley v. Glover, 125 Ga. 710, 54 S. E.
626.
On Definite Sum. — Where the defendant was found to be
indebted to the plaintiff for a definite sum, interest was
properly allowed thereon. Thompson v. Ocmuigee Building,
etc., 56 Ga. 350.
If the plaintiff fraudulently sold the defendant land which
she did not own and received part of the purchase money,
he would be entitled to recover interest on the sum so paid
from the date of payment; if no fraud, interest from the
date of demand for repayment of the money; and if no
fraud and no demand, interest from the date of filing the
plea of set-off. Phillips v. O'Neil, 85 Ga. 142.
Endorser Suing for Breach of Guaranty. — A promise by a
third person, to the drawer of a bill of exchange, that the
drawee shall accept it, will enure to the benefit of an en-
dorser for the drawer's accommodation, if communicated to
endorser, and the endorser suing for breach of such guaranty
is entitled to recover interest. Hitt v. Lippitt, 2 Ga. Dec. 89.
Insurance Company. — Where an insurance policy provided
that the company would loan insured, at his option stated
amounts of cash, and that the "loan may be renewed an-
nually, if interest be paid for one year in advance," and in-
sured who had obtained loan, died four months after ma-
turity, without either having renewed or repaid it, the com-
pany is entitled only to contract rate of interest for actual
time of its forbearance. State Mutual Life Ins. Co. v. For-
rest, 19 Ga. App. 296, 91 S. E- 428; State Mutual Life Ins.
Co. v. Haynes, 22 Ga. App. 48, 95 S. E. 379.
On Interest Coupons. — Where interest coupons on bonds
called for interest at a rate not exceeding five per cent,
when declared to be earned and due as provided in the
mortgage, such coupons do not draw interest until there is
a default in. payment according to the terms of the mort-
gage. Central, etc., R. Co. v. Central Trust Co., 135 Ga.
472, 69 S. E. 708.
County Debts. — "Every liability which a county may
legally incur without violating the constitutional prohibition
against the creation of a debt rnay legally bear interest,
and such interest accruing upon such principal liability will
not be obnoxious to the constitutional prohibition against
the creation or incurring of a new debt." Hartley v. Nash,
157 Ga. 402, 406, 121 S. E. 295.
Interest upon a valid subsisting obligation of a county
is of the same nature as the principal, and is collectible
upon the same terms and in the same manner as the prin-
cipal. Hartley v. Nash, 157 Ga. 402, 121 S. E- 295.
On Mesne Profits. — Mesne profit or rental value does not
ordinarily bear interest, at least until it becomes a liqui-
dated sum. Fricker v. Americus Mfg., etc., Co., 124 Ga.
165, 52 S. E. 65.
On Money Fraudulently Obtained. — He who has fraudu-
lently received or wrongfully detained the money of an-
other, is chargeable with interest thereon from the time he
received it. Anderson v. State, 2 Ga. 370.
On Remaindermen's Interest. — Interest for the remainder-
men does not run until the death of the tenant for life, the
estate being in money. McCook v. Harp, 81 Ga. 229, 7. S.
E- 174.
Verdict. — If a jury render a verdict for a liquidated de-
mand, they should give interest on it. Earnest v. Napier,
19 Ga. 537.
II. LIQUIDATED DEMANDS.
A. Particular Instances of Liquidated Demands.
1. In General.
Liquidation is a Certain and Fixed Amount. — Liquidation
is an amount certain and fixed, either by the act and agree-
ment of the parties, or by operation of law; a sum which
can not be changed by the proof; it is so much or nothing;
and that the term does not necessarily refer to a writing.
Council v. Hixon, 11 Ga. App. 818, 76 S. E- 603, 827; Nisbet
v. Lawson, 1 Ga. 275. If it does not appear how much is
due the debt is not liquidated. Council v. Hixon, supra.
Parol Claim. — A claim resting entirely in parol may be .i
liquidated demand. Council v. Hixon, 11 Ga. App. 818, 827,
76 S. E. 603; Anderson v. State, 2 Ga. 370; Nisbet v. Law-
son, 1 Ga. 285.
Debt When Certain. — A debt is liquidated when it is ren-
dered certain what is due and how much is due. Roberts v
Prior, 20 Ga. 561. That certainty need not be contempo-
raneous with the agreement out of which it results. Coun-
cil v. Hixon, 11 Ga. App. 818, 829, 76 S. E- 603. Bartee v.
Andrews, 18 Ga. 407.
Interest Payable in Installments. — Stipulation in note that
interest shall be paid annually renders interest past due a
liquidated demand which itself bears interest. Butler v.
First National Bank, 13 Ga. App. 35, 78 S. E- 772; Union
Sav. Bank, etc., Co. v. Dottenheim, 107 Ga. 606, 614, 34 S.
E. 217; EUard v. Scottish American Mortg. Co., 97 Ga. 329,
22 S. E. 893; Merck v. American Freehold Mortg. Co.. 79
Ga. 213, 7 S. E. 265.
Contract for One-Fifth of Crop. — Contract for payment of
one- fifth of crop when made, became liquidated when party
received and took possession of the crop or its proceeds.
Bartee v. Andrews, 18 Ga. 407.
Claim of Employer against Insurer for Amount Recovered
by Employee. — The demand of an employer against an in-
surance company under an "Employers' Liability Policy,"
for the loss of damage sustained by him by reason of a
judgment (together with the cost and expenses thereof) re-
covered by an employee accidentally injured, is a liquidated
demand upon which interest may be claimed. Georgia Iron,
[ 940 ]
§ 3434
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3434
etc., Co. v. Ocean Accident, etc., Cor])., 133 Ga. 326, 65 S.
E. 775.
Section applied in an action on promissory note in Hobbs
v. Citizens Bank, 32 Ga. App. 522, 124 S. E- 72.
2. Accounts.
See § 3435 and notes thereto.
Open Accounts. — Assent to the correctness of open ac-
counts make them liquidated demands. Kelley v. Terhune,
etc., Co., 113 Ga. 365, 38 S. E. 839; Anderson v. State, 2 Ga.
375; Council v. Hixon, 11 Ga. App. 818, 76 S. E. 603. But
see, Fell v. Abbot,. R. M. C. 452, where it was held that a
verbal acknowledgment of indebtedness on an open account
accompanied by a promise to pay does not constitute a
liquidated demand.
An account is not to be taken as a liquidated demand un-
til the amount due has been expressly or impliedly fixed
and determined. Rice-Stix Dry Goods Co. v. Friedlander
Bros., 30 Ga. App. 312, 117 S. E- 762.
Same — Acknowledgment by Letter.— An acknowledgment
of an open account by letter is such a liquidation of the de-
mand as will enable the creditor to obtain interest from
the date or the acknowledgement. Hickre Lord v. Thomas,
Dud. 218.
Same — Decedent Assenting to in Life Time. — When a de-
cedent in his life time assented to the correctness of an ac-
count rendered him it became after such assent, a liquidated
demand. Kelley v. Terhune, etc., Co., 113 Ga. 365, 38 S. E-
839; Anderson v. State, 2 Ga. 370; Bartee v. Andrews, 18
Ga. 407.
Same — Unpaid Balance on Accounting. — Upon a petition
for an accounting by one partner, interest is usually not al-
lowed on the unpaid balance. Wilson v. Wikerson, 97 Ga.
814, 25 S. E. 908.
Amount of Account Uncertain.— Where neither the declara-
tion nor the evidence showed when the account became due,
the verdict could ^ot properly include interest prior to filing
of suit. Crapp v. Dodd, 92 Ga. 405, 17 S. E. 666.
Damages May Be Awarded on Frivolous Appeal.— An act
prohibiting interest on an open account, does not prevent
the awarding of damages on a frivolous appeal. Fell v.
Abbot, R. M. C. 452.
3. Parties Standing in Fiduciary Relation.
Agent. — An agent who admits money in his hands be-
longing to his principal, is liable for interest thereon from
the time he received it. Anderson v. State, 2 Ga. 370.
Attorney. — Where one agreed to pay an attorney, for
professional services to be rendered, five per cent, of the
value of certain timber, title to which was to be acquired
as a result of the attorney's efforts, the claim of the at-
torney for compensation became, upon the performance of
the services, a liquidated demand, and, as such, bore interest
from the date it became due, notwithstanding the contract
provided that in the event of disagreement as to value, the
owner of the timber should submit to the attorney a "give-
or-take proposition," and he thereafter refused to do so.
Council v. Hixon, 11 Ga. App. 818, 76 S. E- 603.
Where a note stipulates for attorney's fees in case of col-
lection by suit it is part of the principal debt and bears in-
terest. Baxter v. Bates, 69 Ga. 587.
Factors. — A factor is entitled to interest upon draft paid
by him upon faith of produce which he never received.
Howard v. Behn, 27 Ga. 174; Field v. Reid, 21 Ga. 314.
Where a factor has rendered an account of the sales and
paid the balance due in a reasonable time, he is not liable
for interest. Brown v. Clayton, 12 Ga. 564.
Partners. — Where one partner misapplies partnership funds
to his own use, he will be held liable for the same, with in-
terest thereon from time of such misapplication. Solomon
v. Solomon, 2 Ga. 19.
A partnership may be liable for interest to one partner
who makes advances for the firm, when there is a special
contract to that effect or where it can be implied from cir-
cumstances, otherwise the partner will not be entitled to
interest. Prentice v. Elliott, 72 Ga. 154.
Surety. — In an action of assumpsit for the recovery of
money paid by a surety, he will be entitled to recover in-
terest, if the original creditor had such a right. Knight v.
Mantz, 1 Ga. Dec. 22.
Trustee. — In settling with trustees for balances in their
hands, simple interest is the rule; compound interest is only
allowed where trustee has conducted himself fraudulently.
Hamilton v. Reese, 18 Ga. 8.
4. Contracts of Hire and Sale.
Manufacture of Lumber. — A contract to manufacture lum-
ber from timber at a stipulated price per thousand feet, to
be fixed and certain when the lumber is manufactured and
measured, bears interest at the rate of seven per centum
from the date the demand was liquidated. Waynesboro
Planing Mill v. Barrow, 33 Ga. App. 26, 125 S. E. 505.
Unpaid Wages. — Though interest on unpaid wages was not
expressly claimed, the jury could allow interest from time
wages became due according to the terms of the contract for
the amount of money wages was liquidated by the con-
tract, and would bear interest from time payment ought to
have been made. Ansley v. Jordan, 61 Ga. 482, 487.
Where suit was brought in a justice court each month,
the ground of which was that the plaintiff had been em-
ployed for a year at $50.00 per month, and had been dis-
charged pending the term, interest necessarily accrued, and
the plaintiff could not waive or remit interest so as to have
each amount even $50.00 and prevent appeals. Howard v.
Chamberlain, etc., Co., 64 Ga. 684.
A contract for the hire of a negro at a stipulated price,
to be paid at the end of the year, is a liquidated demand
and bears interest. Roberts v. Prior, 20 Ga. 561; Hoyle v.
Jones, 35 Ga. 40.
Unpaid Salary of Judge. — Interest on the unpaid salary of
district judge can not be enforced against the county out of
which the same is to be collected. Holtzclaw v. Russ, 49
Ga. 115.
Cash Sale. — A cash sale of property bears interest from
date, although the day of payment may be postponed until
a particular event transpires. Parke v. Foster, 26 Ga. 465.
Claim for Purchase Price. — A claim for the purchase -price
of goods, where the contract of sale has fixed the price at a
definite sum, is a liquidated demand; and, in the absence
of any contrary understanding or custom concerning the
time for payment, bears interest from the date the goods
are delivered. McCarthy v. Nixon Grocery Co., 126 Ga. 762
(1, 4) (56 S. E. 72); Howard Supply Co. v. Bunn, 127 Ga.
663, 664 (4) (56 S. E. 757); Curtis v. College Park Lumber
Co., 145 Ga. 601 (3), 602 (89 S. E- 680). Rice-Stix Dry Goods
Co. v. Friedlander Bros., 30 Ga. App. 312, 117 S. E. 762.
B. Tender as Affecting Interest.
After Tender Interest Not Allowed. — A formal tender of
payment of the note was in effect waived by the statement
on the part of the plaintiff, when the defendant offered to
pay the note, that the amount due thereon would not be ac-
cepted unless the amount due on former note was also paid,
and the plaintiff could not recover interest from that time
on first mentioned note. Washington Exchange Bank v.
Smith, 23 Ga. App. 356, 98 S. E- 418.
Essentials of Tender. — A tender to prevent the running of
interest must be continuing. Using the money after refusal
by the creditor to receive it destroys this necessary at-
tribute of a legal tender. Fortson v. Strickland, 23 Ga. App.
607, 608, 99 S. E. 147.
Where proof of tender is insufficient, note bears interest
after maturity. Dumas v. Pepper, 43 Ga. 361.
III. UNLIQUIDATED DEMANDS.
See ante, this note, "Liquidated Demands," II.
In General. — In an action upon a breach of contract, where
the damages are not liquidated, interest is not recoverable
as such. Tifton, etc., R. Co. v. Butler, 4 Ga. App. 191, 60
S. E. 1087.
One that Can Not Be Rendered. — An unliquidated claim
is one which one of the parties to the contract can not alone
render certain. Council v. Hixon, 11 Ga. App. 818, 76 S. E.
603. Roberts v. Prior, 20 Ga. 561.
When There Is Contention over Amount. — A claim is un-
liquidated when there is a bona fide contention that the
debtor is not liable to the full amount. Ryan v. Progressive,
etc., Co., 69 Ga. App. 83, 84 S. E. 834.
Guarantee to Pay Debt of Another. — A written guarantee
to pay the future indebtedness of another, on open ac-
count, is not liquidated. Hargroves v. Cooke, 15 Ga. 321.
Taxes. — Taxes are not debts in the ordinary sense of the
word, so as to bear interest as liquidated demands. State
v. Southwestern R., Co., 70 Ga. 11, 13.
County Agreeing to Pay Bank Interest on Warrants.- -An
agreement between a bank and a county that the bank is
to pay warrants issued by county and to receive interest on
said payments until paid by county is invalid. Lettice v.
American Natl. Bank, 133 Ga. 874, 67 S. E. 268; First Natl.
Bank v. Owens, 47 Ga. 599, 95 S. E. 2. The question
whether a warrant issued by county authorities in payment
of a liquidated demand bears interest is not presented for
adjudication in the above cases. The above cases are to be
distinguished from State v. Speer, 33 Ga. Supp. 93, for the
latter was decided before the Constitution of 1877 (see §§
5892, 5893) which was different in several particulars from
the one in force then. However, State v. Speer came out
flatly and decided that orders given by inferior courts for
the payment of money given in liquidation of debts due by
said courts drew interest for they were liquidated demands
[941]
§ 3435
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3436
and as such bore interest. See, Code 1863 § 2029, which is
the same as this section. (Ed's Note.)
Orders absolute given by the inferior courts of the counties
in this state for the payment of money to other persons in
liquidation of debts due by said courts, draw interest just
as other liquidated demands do. State v. Speer, 33 Ga. Supp.
93.
IV. DEMANDS ARISING FROM TORT.
Unliquidated Demands Arising Ex Delicto.— As a matter of
law, unliquidated demands arising ex delicto do not bear
interest. Western, etc., R. Co. v. Brown, 102 Ga. 13, 29 S.
E. 130.
Where Demand Unliquidated Interest Allowed as Dam-
ages.— Where the demand is unliquidated, it is error to
charge the jury that they find a specific sum with interest,
the allowance of interest was within the discretion of the
jury, and while they may have increased the damages
by an allowance of interest, the amount so allowed should
have been included in one gross sum as damages, and not
separately specified by the verdict. Atlantic Coast Line R.
v. Henderson Elevator Co., 18 Ga. App. 279, 88 S. E. 101.
In actions ex delicto the jury may allow interest as part
of damages. If interest is allowed it is not recoverable eo
nomine and verdict should express damages in aggregate
sum. Milledgeville v. Stemburg, 139 Ga. 692, 78 S. E- 35;
Georgia R., etc., Co. v. Crawley, 87 Ga. 191, 13 S. E. 508.
§ 3435. (§ 2885.) On merchant's accounts. —
All accounts of merchants, trademen, mechanics,
and all others, which by custom become due at the
end of the year, bear interest from that time up-
on the amount actually due whenever ascertained.
Acts 1858, p. 90; 1873. p. 22.
Cross References.— See notes to § 3434. As to interest
on rent, see § 3704. As to what are unliquidated demands,
see 7 Enc. Dig. 676. As to time during which interest runs,
see 7 Enc. Dig. 698.
Editor's Note. — Originally the Code provided that "all ac-
counts of merchants, tradesmen, and mechanics, which by
custom became due at the end of the year, bear interest
from that time upon the amount actually due whenever as-
certained," (Code 1863, § 2030.) By the acts of 1873, p. 22,
the words "All others" were inserted after the word "me-
chanics." The words "which by Custom" are still retained
however and they qualify all the classes of accounts previ-
ously mentioned.
Custom Is Universal Practice. — The custom of any trade
or business shall be binding only when it is of such universal
practice as to justify the conclusion that it became by im-
plication, a part of the contract. Savannah v. Feeley, 66
Ga. 31, 36.
Account Due on Delivery of Goods. — Where a sale of
goods has been made, in the absence of proof of either con-
tract or custom concerning payment therefor, the presump-
tion is that the amount is payable on delivery. Morris v.
Root, 65 Ga. 686, and the plaintiff is entitled to recover in-
terest on the value of the article from the date of delivery.
McCarthy v. Nixon Grocery Co., 126 Ga. 762, 56 S. E- 72.
Open Accounts Usually Become Due at End of Year. — All
open accounts, unless otherwise agreed, made in the conduct
of a business, expressly or by implication become due and
payable at the end of the year for which they are made.
Adkins v. Hutchings, 79 Ga. 260, 4 S. E- 887. In McCarthy
v. Nixon Grocery Co., 126 Ga. 762, it was stated that inso-
far as the above rule was in conflict with the holding in
Morris v. Root, 65 Ga. 686, it would have to yield to the
older decision. Ed. Note.
Landlord's Lien on Crop. — The landlord's special lien for
rent on the crop raised on the land, dates from the maturity
of the crop and not from the end of the year. Saulsbury,
etc., Co. v. McKellar, 95 Ga. 301; Wimbush v. Curry, 8
Ga. App. 223, 68 S. E. 951.
Physicians Accounts. — Accounts of physicians falling due
at the end of the year, draw interest from that time. Wood-
field v. Colzey. 47 Ga. 122.
Taxes Bear Interest from Date of Verdict. — Taxes found
to be due bear interest from the date of the verdict. State
v. Southwestern Railroad, 70 Ga. 11.
Foreclosing a Lien. — Although it may be a custom for
running accounts to fall due and become payable on January
1 following (this section), yet, for the purpose of foreclosing
a lien arising out of such an account, the account will be re-
garded as falling due upon "the delivery of the last item
constituting a part of the running account covered by the
contract." Dunning v. Stovall, 30 Ga. 444; Calhoun Brick
Co. v. Patillo Lumber Co., 10 Ga. App. 181, 73 S. E. 23;
McCluskey v. Still, 32 Ga. App. 641, 124 S. E- 548.
Claim for Advances. — A claim by a partner for advances
[ 942 ]
made for the firm is not an account stated, nor an account
which by custom bears interest from the end of the year.
Prentice v. Elliott, 72 Ga. 154, 157.
Set-Off Not Affected by Disallowing Interest.— Disallow-
ing interest on open accounts does not affect law of set-off.
Meriwether v. Bird, 9 Ga. 594.
§ 3436. (§ 2886.) Beyond eight per cent, in-
terest forbidden. — It shall not be lawful for any
person, company, or corporation to reserve,
charge, or take for any loan or advance of money,
or forbearance to enforce the collection of any
sum of money, any rate of interest greater than
eight per centum per annum, either directly or in-
directly by way of commission for advances, dis-
count, exchange, or by any contract or contriv-
ance or device whatever. Acts 1878-9, p. 184.
Cross References. — As to rate of interest by building and
loan associations, see §§ 2878, 2880, 2893. As to right of
surety to recover usury paid by him from principal, see §
3554. As to fee paid for investigating security or title made
to secure loan, see § 3458. As to right of bank to charge
same rate of interest as individual, see § 2336. As to what
a plea of usury must set forth, see § 5674. As to the rate
of interest which may be charged by banks, see § 2366(165). -
As to the rate of interest allowable under the small loan act
see § 1770(78). As to rate of interest on installment con-
tract, see § 3436(1).
Editor's Note. — This section and § 3427, cover exactly the
same principle, the former is, however, expressed in negative
language while the latter is expressed in the affirmative.
Therefore, when using this section constant reference should
be made to § 3427.
In General.- — Though the sum named in a promissory
note as principal may in fact include actual principal and
usurious interest, yet if such note stipulates for 8 per cent.
interest from maturity, the true principal bears that rate of
interest after the note becomes due; and to properly purge
the note of usury, it is only necessary to eliminate the un-
lawful interest, i. e., interest exceeding 7 per cent, included
in the nominal principal. Harrell v. Blount, 112 Ga. 711, 38
S. E- 56. But see § 3438(1) forfeiting all interest in usurious
loan.
Contracts to pay. usury are unlawful, but only as to the
usurious interest; but mere illegality in the consideration is
not sufficient to defeat the rights of an innocent holder.
Weed v. Gainesville, etc., R. Co., 119 Ga. 576, 46 S. E. 885.
See § 3438(1) by which all interest is forfeited.
Reserving of Highest Legal Rate of Interest in Advance. —
The reserving of interest in advance at the highest legal
rate on a loan, whether it be a short or long-term loan, is
usurious; and a deed to land, given to secure a promissory
note for the loan, is void on account of usury. McCall v.
Herring, 116 Ga. 235, 42 S. E. 468; Reese v. Bloodworth, 146
Ga. 355, 91 S. E. 120; Loganville Banking Co. v. Forrester,
143 Ga. 302, 84 S. E. 961; Haley v. Covington, 19 Ga. App.
782, 92 S. E. 297.
A contract providing for the payment of the highest rate
of interest in advance is not usurious. Union Sav. Bank v.
Dottenheim, 107 Ga. 606, 34 S. E. 217; Mackenzie v. Flan-
nery & Co., 90 Ga. 590, 16 S. E. 710.
The case of Loganville Banking Co. v. Forrester, 143 Ga.
302, 84 S. E. 961, seems to settle the rule that reserving the
maximum of interest in advance on short term loans is
usurious. This was the first case to flatly decide the ques-
tion although the doctrine that it was not usurious was
criticized in Howell v. Pennington, 118 Ga. 494, 45 S. E-
272, and the dicta in that respect in Mackenzie v. Flannery,
90 Ga. 590, 16 S. E- 710, and Union Savings Bank v. Dotten-
heim, 107 Ga. 606, 34 S. E. 217; McCall v. Herring, 116 Ga.
235, 42 S. E. 468, was shown to be obiter. In Patton v.
Bank, 124 Ga. 965, 53 S. E. 664, the point as to whether or
not it was usurious to take interest in advance on short
term loans was not decided outright, the court holding that
a reservation in that particular case was not usurious. It
seems however that as the Loganville case followed the case
of Patton v. Bank, 124 Ga. 965, 53 S. E- 664, the decision did
not have much strength, but it has been followed in Reese
v. Bloodworth, 146 Ga. 355, 91 S. E- 120, and Haley v. Cov-
ington, 19 Ga. App. 782, 92 S. E- 297. In Evans v. National
Bank of Savannah, 250 U. S. Ill, it was decided that such
a transaction was not usurious. The courts of the United
States not being bound to interpret usury in cases like these
in the same manner as the state courts. Ed. Note.
Lawful to Sell on Credit for Higher Price Than Cash. —
While it is lawful and not usurious to charge one price for
property sold for cash, and a higher price for the same
§ 3436
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3436(1)
property if sold on credit, still, if the contract is that the
property is to be sold at a cash valuation, and that certain
payments are to be deferred in consideration that a greater
rate of interest than that allowed by law is to be paid by
the purchaser, then the contract would be usurious. Rush-
ing v. Worsham & Co., 102 Ga. 825, 30 S. E- 541; Irvin v.
Mathews, 75 Ga. 739; Ozmore v. Coram, 133 Ga. 250, 65 S.
E. 448.
Borrower to Pay Insurance Premiums and Interest. —
Where property is conveyed to secure a debt, a stipulation
that the borrower shall in addition to legal interest pay in-
surance premiums thereon is not usurious. New England
Mortg., etc., Co. v. Gay, 33 Fed. 636.
Broker's Fees and Commissions. — See § 3437.
Condition that Borrower Pay Loan of Lender. — Where a
lender requires, as a condition precedent to making a loan
upon which the full legal rate of interest is expressly
charged, that the borrower shall assume and pay off a
promissory note held by the lender against one who is
known by the lender to be insolvent, and whose debt the
borrower is under no obligation to pay, the transaction is
usurious. Bishop v. Exchange Bank, 114 Ga. 962, 41 S. E- 43.
Sum Paid to Lender for Professional Services — Titles. — If
the sum was paid bona fide by way of compensation for
professional services so rendered by the lender, and did
not enter into the consideration moving the lender to make
the loan itself, the transaction was not usurious; otherwise,
if it did enter into and become a part of the consideration
of the loan, and the arrangement between the parties was
merely a colorable transaction, being in reality a scheme or
device to evade the statutes against usury. Sanders v.
Nicolson, 101 Ga. 739, 28 S. F. 976.
A reasonable fee paid to the lender's attorney for profes-
sional services rendered in examining the title to the prop-
erty offered by the borrower as security, looking after the
removal of incumbrances, drawing up necessary papers, etc.,
is not to be regarded as a commission exacted from the
borrower by an agent of the lender for negotiating the
loan. McCall v. Herrin, 118 Ga. 522, 45 S. F- 442, especially
where the lender never authorized charge nor shared in fee.
And this is true notwithstanding the borrower did not know
who the attorneys for the lender were, and did not agree to
pay their fees until after the papers for the loan had been
prepared and the money had been forwarded by the lender.
Gannon v. Scottish American Mortg. Co.. 106 Ga. 510. 32
S. F. 591.
Slight Excess Charged by Mistake. — A contract is not
usurious where by mistake a few cents more than the legal
rate is charged. Rushing v. Wellingham, 105 Ga. 166, 31
S. E- 154; Loganville Banking Co. v. Forrester, 143 Ga. 302,
305, 84 S. E- 961.
Note Including Interest Due at Maturity. — It is lawful to
include in. a promissory note the amount of interest at the
legal rate, which will be due at its maturity, and to provide
that the sum represented by the principal and such interest
shall bear interest at eight per cent, per annum from ma-
turity. McCrary v. Woodward, 122 Ga. 793, 50 S. E. 941.
But if the amount of interest so included in the note ex-
ceeds the legal rate, as provided in this section and is in-
serted in the note by the lender for the purpose of evading
the laws against usury, the instrument will be usurious.
Bellerby v. Goodwyn, 112 Ga. 306, 37 S. E. 376; Loganville
Banking Co. v. Forrester, 143 Ga. 302, 84 S. E- 961; Bank
v. Justus, 150 Ga. 286, 103 S. E. 794.
The aggregate of principal and interest divided into notes
falling due each month, makes the contract usurious under
this section. Union Sav. Bank, etc., Co. v. Dottenheim, 107
Ga. 606, 34 S. E. 217.
Judgment on Series of Notes to Become Due at the Same
Time. — Where several notes are given, payable at different
times, with interest included in each to maturity and a
provision for eight per cent, interest after maturity, with a
stipulation that if any of the notes should not be paid at
maturity all should become due; and when one of the notes
is not paid at maturity and suit is brought upon all the
notes under this stipulation, and judgment is rendered for
the full amount of principal and interest appearing on the
face of the notes to be due at that time, the judgment not,
however, being rendered until after all of the notes have ma-
tured according to their respective dates and at a time
when all the interest included in each has been earned, there
is no usury in the transaction and the judgment is not for
any reason erroneous. McCrary v. Woodard, 122 Ga. 793,
50 S. E- 941.
Parol Promise to Pay Eight Per Cent. Interest. — Where a
promissory note on its face bore interest at six per cent.,
and, after it fell due and was unpaid, the makers in con-
sideration of the holders delaying to enforce collection agreed
in parol to pay eight per cent, interest thereon and for two
years interest was paid at this rate, such payments were
valid, and the interest in excess of six per cent, could nei-
ther be recovered, nor thereafter applied as a credit on the
principal of the note. Strickland v. Bank, 141 Ga. 565, 81
S. E. 886.
Considering Year as of Twelve Months of Thirty Days. —
The taking of interest for a portion of a year, computed
on the principal that a year consists of 360 days, or twelve
months of 30 days each, is not usurious, provided this princi-
ple is resorted to in good faith as furnishing an easy and
practical mode of computation, and not as a cover for
usury. Prior to act August 7, 1903, abolishing grace, in tak-
ing interest in advance on discounting a negotiable note
payable at a chartered bank it was lawful to include the
three days of grace in the computation. Patton v. Bank,
124 Ga. 965, 53 S. E. 664.
Suits against National Banks in State Courts. — Where
suit is brought against national bank under § 5198 of the
Revised Statutes of the United States for recovery of
usury.
The decisions of the Supreme Court of the United States
interpreting this section are final, hence as they hold it is
not usury to reserve interest in advance, this holding must
be followed by courts of this state in such suits. Cooper v.
National Bank, 21 Ga. App. 356, 94 S. E. 611, affirmed 251
U. S. 108.
Section 3438(1) is not invalid on ground that it is a special
law for which provision had been made by this section.
South Georgia Mercantile Co. v. Lance, 143 Ga. 530, 85 S.
F. 749.
This Section Does Not Effect Waiver of Homestead. —
There is nothing in this section which militates against the
view that waiver of the right of homestead in a usurious
contract is void. Cleghorn v. Greeson, 77 Ga. 343. See
also, Long v. Gresham, 148 Ga. 170, 96 S. E. 211, but the
provisions of § 3438(2) does militate against this. See edi-
tor's note under § 3438 (1).
Effect of Usury Paid on Note Made between Acts of 1879
and 1881. — Where a note was made between the passage of
the act of October 14, 1879, and the amendatory act of
October 27, 1881, in which it was sought to charge a greater
rate of interest than eight per cent., if payments were made
thereon and credited as interest, in a suit on the note it
could be set up that all interest was forfeited under this sec-
tion as it then stood, and that such payments went in re-
duction of the principal. Crane v. Goodwin, 77 Ga. 362.
Quoted in Jackson v. Garner, 79 Ga. 415, 4 S. E- 213,
Croom v. Jordan, 20 Ga. App. 802, 93 S. E. 538; Long v.
Gresham, 148 Ga. 170, 173, 96 S. E. 211.
§ 3436(1). Rate of interest on loans repaid in
monthly installments. — Any persons, natural or
artificial in this State, lending money to be paid
back in monthly installments may charge interest
thereon at six per cent, per annum or less, for the
entire period of the loan, aggregating the principal
and interest for the entire period of the loan, and
dividing the same into monthly installments, and
may take security therefor by mortgage with
waiver of exemption, or title, or both, upon and
to real estate or personal property or both, and
the same shall be valid for the amount of the prin-
cipal and interest charged and such contracts shall
not be held usurious. Acts 1912, pp. 144, 145.
As to rate of interest charged by bank, see § 2366(165).
Section Held Constitutional. — This act is not unconstitu-
tional on the ground that is a special law for which provi-
sion has been made by an existing general law in violation
of § 6391; nor is it unconstitutional because it contains mat-
ter different from that expressed in the title or that the
title is too indefinite in violation of § 6437; nor does it violate
the Federal Constitution, article 4, § 2, par. 1, § 6673 of this
code, in that it denies citizens of other states the right to
lend money in this state to be paid back in monthly install-
ments where interest is charged at the rate of six per cent
per annum or less for the entire period of the loan, and the
principal and the interest for the entire period are aggregated
and divided by the monthly installments. South Ga. Mer-
cantile Co. v. Lance, 143 Ga. 530, 85 S. E. 749; South Ga.
Mercantile Co. v. Lance, 16 Ga. App. 592, 85 S. E- 952.
"Installment Plan" Embraces Words • "Monthly Install-
ments."— The words "installment plan" as used in the title
to this act reading, "An act to authorize any person lend-
ing money to be repaid on the installment plan to aggregate
the principal and interest," embraces the words, "monthly
installment" as used herein. South Ga. Mercantile Co. v.
Lance, 143 Ga. 536, 85 S. E- 749.
[943]
§ 3437
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3438(1)
Default in Payment as Acceleration of Maturity. — Under
the terms of the contract question, on failure of the debtor
to pay three installments after they became due, the lender
was not confined by this section to the right to sue for such
past installments, but was authorized to bring suit for the
amount of the loan with interest thereon. South Ga. Mer-
cantile Co. v. Lance, 143 Ga. 530, 85 S. E- 749; South Ga.
Mercantile Co. v. Lance, 16 Ga. App. 592, 85 S. E- 952.
Same — Effect of Pursuing This Remedy. — Where the plain-
tiff elects to pursue this remedy he thereby abandons any
other possible remedy which he might have had in regard to
bringing suit. South Ga. Mercantile Co. v. Lance, 143 Ga.
530, 85 S. E. 749; South Ga. Mercantile Co. v. Lance, 16
Ga. App. 592, 85 S. E- 952.
Calculation on Basis in Excess of Legal Rate — Effect. — -It
is usurious to calculate interest on the basis of twelve per
cent., but the fact that the plaintiff so calculated interest
does not prevent him from proceeding for the principle of
the loan with legal interest thereon from the time it was
made and allowing credit as a partial payment for the
amount which was paid. South Ga. Mercantile Co. v.
Lance, 143 Ga. 530, 85 S. E. 749; South Ga. Mercantile Co.
v. Lance, 16 Ga. App. 592, 85 S. E. 952.
§ 3437. (§ 2887.) Commissions, when not us-
urious. — Where the lender neither takes nor con-
tracts to take more than lawful interest, the loan
is not rendered usurious by money paid or agreed
to be paid others by the borrower in order to ob-
tain the loan.
For illustrations coming within this section, see 12 Enc.
Dig. 369; 11 Cum. Dig. 244.
Editor's Note. — This section was new with the code of
1895, and was based on the decision in Merck v. American
Freehold Co., 79 Ga. 213, 7 S. E. 265, decided in 1887, and
Hughes v. Griswold, 82 Ga. 308, 9 S. E- 1092, decided in 1889.
Both cases are obviously sound for the lender gets no more
than eight per cent, the borrower paying the person who
procured the loan a commission to which he is entitled for
services rendered the borrower.
This section, of course, does not permit an evasion of the
usury laws by permitting the lender to charge the legal rate
of interest with a superadded brokerage fee for himself, and
in Harrison v. Stiles, 95 Ga. 264, 22 S. E- 536, it was held
that an agreement with a broker to make a loan to the
broker's principal, the lender to receive the maximum legal
rate and one half the brokerage fees was usurious and il-
legal. See also, Pattle v. Lowe, 99 Ga. 576, 27 S. E- 145.
Whether Agent of Borrower or Lender Determines. — The
litigation arising under this section seems in nearly all in-
stances to turn upon the question whether the person ne-
gotiating the loan is the agent of the borrower or of the
lender. It is well settled that what the borrower does to
procure the loan is immaterial, this rule being a mere ap-
plication of the section. See Eubanks v. Shewmake Bros.
Co., 30 Ga. App. 315, 117 S. E- 664; Barksdale v. Security
Invest. Co., 120 Ga. 388, 47 S. E. 943; Jones v. Norton, 9
Ga. App. 333, 71 S. E. 687; Boardman v. Taylor, 66 Ga. 638;
Merck v. American Freehold Land Mortg. Co., 79 Ga. 213,
7 S. E. 265. For additional cases, see 12 Enc. Dig. 474, 11
Cum. Dig. 244.
But, on the other hand, if the person negotiating the loan
is in fact the agent of the lender, the payment of a com-
mission to him, is in effect a payment to the principal, if
he gives countenance to the exaction of such commission,
and is in the nature of interest on the loan. If, then, the
commission so paid and the stipulated interest together ex-
ceed the lawful interest, the transaction is usurious. See
McCall v. Herring, 116 Ga. 235, 240, 42 S. E- 468. And this
is true- if the circumstances were such that the lender must
have necessarily known that the agent intends to charge
the borrower, and did charge and collect from him, such
commission for making the loan. See Clark v. Howard, 111
Ga. 242, 36 S. E. 837.
However, even though the agent is acting for the lender,
if the additional charge by such agent was made without
the authority of the lender, and without his knowledge there-
of, and the lender does not share therein, it seems to be well
settled that the transaction is not usurious. See Wacasie
v. Radford, 142 Ga. 113, 82 S. E. 442; McLean v. Camak, 97
Ga. 804, 25 S. E. 493; McCall v. Herrin, 118 Ga. 522, 45 S.
E. 442; Harvard v. Davis, 145 Ga. 580, 89 S. E- 740.
Same — Question of Agency for Jury. — The question whether
the agent was the agent of the borrower or of the lender
is a question of fact which should be decided by the jury.
Williams v. Forman, 18 Ga. App. 242, 89 S. E. 459.
Where Fees and Interest Do Not Exceed Seal Rate. —
Where a stipulated "brokerage fee" if added to the stipu-
lated interest would hot total an amount exceeding eight
per cent per annum, the contract is not usurious. Harvard
v. Davis, 145 Ga. 580, 89 S. E- 740; Almand v. Equitable
Mortg. Co., 113 Ga. 983, 39 S. E. 421; Green v. Equitable
Mortg. Co., 107 Ga. 536, 33 S. E. 869.
Middleman Using His Own Funds. — Where a middleman
used his own money in turning over proceeds of loan to bor-
rower, because the lendee's money was in the hands of an-
other middleman at a distant point, this will not infect the
loan with usury by reason of the commissions paid to mid-
dlemen in pursuance of contract of borrower made at time
of engaging him to procure loan, nor will the fact that the
middlemen facilitated the payment of interest infect such
loan with usury, these services being voluntary. Hughes
v. Griswold, 82 Ga. 299, 9 S. E- 1092.
Where the money lent belonged to none of tne middlemen,
but the notes and mortgage were payable to one of them
who shared in commissions paid by borrower, will not infect
the loan with usury, the lender knowing nothing abuut
the agreement to pay commissions and having acted in per-
son in contracting to make loan, and having parted with
full amount of loan. Hughes v. Griswold, 82 Ga. 298, 9 S.
E. 1092; Stansell v. Georgia Loan, etc., Co., 96 Ga. 227, 22
S. E. 898.
Voluntary services rendered by middlemen through whose
agency a loan was procured, in looking after the payment
of taxes on the mortgaged property and in collecting and re-
mitting accrued interest on the loan, will not render the
loan usurious. The services, though beneficial to the lender
and also beneficial to the middlemen, were rendered
in pursuance of a known custom of their business. Riley v.
Olin, 82 Ga. 312, 9 S. E- 1095.
Middlemen Reserving Small Sum. — The fact that one of the
middlemen, in turning over the net proceeds of a loan to the
borrower, reserved for his own benefit a small sum to cover
exchange, the money actually lent being at a distance from
the point of settlement, would not render the loan usurious.
Riley v. Olin, 82 Ga. 312, 9 S. E. 1095.
Premium Paid to Surety on Note to Protect Him. — A
premium or commission paid by the principal maker of a
promissory note to the indorser or surety to protect the lat-
ter in the risk assumed and to compensate him for his
services in procuring a loan for which the note is given, in
which premium or commission the lender has no interest,
is in no sense usury. Jones v. Norton, 9 Ga. App. 333, 71
S. E. 687.
§ 3438. (§ 2888.) Repealed by the Acts 1916,
p. 48, herein codified as § 3438(1).
§ 3438(1). All interest forfeited for usury. —
Any person, company, or corporation violating
the provisions of section 3436 of the Code of 1910,
shall forfeit the entire interest so charged or taken,
or contracted to be reserved, charged or taken.
Acts 1916, p. 48.
As to Building and Loan Associations, see § 2878.
Editor's Note. — A complete history of the usury laws of
Georgia together with the penalty for the violation there-
of, from the Colonial days and the English laws prior there-
to, will be found in Union, etc., Trust Co. v. Dottenheim,
107 Ga. 606, 34 S. E. 217. This discussion, however, does not
include this statute. For a full treatment of the cases de-
cided prior to this amendment under the several laws, see
12 Enc. Dig. 489, 518, 11 Cum. Dig. 247.
Immediately prior to this act § 3438, hereby repealed, pro-
vided that all interest in excess of that allowed by § 3436
should be forfeited. So when the repealed section was in
force a person charging usury forfeited only that which was
in excess of the legal rate, and the principal and lawful in-
terest could be collected. In addition to this penalty, where
a plea of usury was filed by the maker, with a plea for
cancellation of a waiver of homestead and exemption rights,
it was proper to cancel such waiver. Since the only penalty
allowed under this act, § 3438 (2), is a forfeiture of interest,
the rule voiding a waiver of homestead and exemptions was
nullified by it. Laing v. Bank, 31 Ga. App. 416, 120 S. E-
799; Davis v. Griff eth, 32 Ga. App. 87, 122 S. E. 631.
Section 3442 was also repealed by this act. It provided
that all titles to property made as a part of a usurious
contract, or to evade the laws against usury, were void. For
cases applying § 3442 see Brown v. Roughtin, 155 Ga. 828,
118 S. E- 557, and cases cited; Pope v. Thompson, 157 Ga.
891, 896, 122 S. E. 604.
As a general rule in the absence of an express provision
to that effect contracts tainted with usury are not void.
The various Georgia statutes upon this subject have not
been uniform in this respect. The act of 1759 provided that
944
§ 3438(1)
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3439
such contracts were void; the act of 1822 provided that such
contracts were not void but the principal should be col-
lected and no more; the act of 1845 made them void except
that the principal was collectible; the act of 1856 made only
the provision in the contract for usurious interest void; the
act of 1863 made a contract for usury void but principal and
legal interest collectible; the act of 1871 provided that ex-
cessive interest was not collectible; the act of 1873 re-
pealed all prior usurious laws and provided that any agreed
rate was legal but in the absence of an agreement seven
per cent should be the legal rate; the act of 1875 called for a
forfeiture of all interest, and this was followed by the act
of 1879; the act of 1881 provided for the forfeiture of the
excessive interest only; and the act of 1916, which is this
and the following section, provided that the entire interest
should be forfeited and that there should be no other pen-
alty. So with the exception of the act of 1759 the principal
has always been collectible in the State of Georgia.
Under all the acts up to 1871, except the act of 1822, the
part of the contract relating to interest was void either in
the entirety or only that part in excess of the legal rate.
Since that time no statute has declared any part of the
contract void, however all the cases through Atlanta, etc.,
Bank v. Spencer, 107 Ga. 629, 33 S. E- 870, have held that
such contract as relating to the entire interest or only that
part in excess of the legal rate, as the case might be under
the statute in force, was void. As a result it was held in
such cases that a negotiable instrument in the hands of a
bona fide holder for value without notice of the usury was
subject to the defense of usury and therefore such interest
could not be collected.
However, Mr. Justice Lamar in the case of Weid v. Rail-
road Co., 119 Ga. 594, 46 S. E. 885, in speaking for himself
pointed out that these decisions were based upon Daly v.
Lumpkin, 1 Ga. 407, in which the decision was reached be-
cause the statute in question expressly provided that the
note was void both as to the usury and legal interest. He
further pointed out that as a general rule unless the stat-
utes expressly make such contract void it is not considered
void and therefore the defense of usury is not available
against a bona fide holder for value without notice. See 39
Cyc. 1078, and Young v. Bank, 22 Ga. App. 63, 95 S. E- 381.
Although the present statute does not expressly make
such contract void it is to be presumed that the prior hold-
ings in this respect will be followed in future cases.
It is probable that the N. I. L- will not affect these de-
cisions or this statute. This is true because the N. I. L.
repeals only those statutes which are in conflict with it. It
is the general rule, in the absence of an expressed intent to
that effect, that it does not repeal an earlier statute clearly
intended to penalize an act deemed to be improper such as
the practice of charging usurious interest. See 8 Corpus
Juris, § 47, p. 50.
A promissory note given since the adoption of this act
for interest on a prior note which was usurious is wholly
unenforceable. It would therefore be error to allow interest
which had legally accrued at the time the note sued on was
given. Bagby v. Bank, 28 Ga. App. 400, 111 S. E. 216.
Constitutionality.— This section is not in conflict with the
constitution because it refers to one subject matter or con-
tains matter different from what is expressed in the title,
§ 6437; nor is it in conflict with § 6445 because repealing §§
3438 and 3442 by reference to title, section number without
describing them. Bank v. Fid. Loan, etc., Co., 155 Ga. 619,
117 S. E. 747.
Act Not Retroactive. — This act changing the penalty for
charging usury in a note was not retroactive; and the law
fixing a penalty for a usurious charge in a note, in force at
the date of the execution of the note, prevails as against
an act of the legislature subsequently passed which repeals
such penalty. Long v. Gresham, 148 Ga. 170, 96 S. E. 211;
Liles v. Bank, 151 Ga. 483, 107 S'. E. 480.
Applicability to National Banks. — State statutes relating
to usury and prescribing penalty for the charging, reserv-
ing, or taking of usury have no application to usurious con-
tracts held by national banks. The penalty fixed by the
Federal statute against national banks for the taking, re-
ceiving, reserving, or charging of usury, and the remedy
given against them in such cases, are exclusive. This rule
is applicable in all cases where a negotiable instrument in-
flected with usury is made payable to such bank originally,
or where it has been discounted by such a bank and the
bank, as holder, is endeavoring to collect the face thereof
with knowledge of usurious interest.' A surety of a debt to
a national bank is not discharged from liability on the note
because the bank charged or received usury. Young v.
Bank, 22 Ga. App. 58, 95 S. E. 381. And see 56 L R. A.
673 et seq.
Effect of Usury upon Surety's Liability. — Prior to this
act the only theory upon which the surety was discharged
from the principal by the exaction of concealed usurious in-
terest was that, since usury voided all titles, including
waiver of a debtor's right to homestead and exemptions, the
voidings of such a provision of a note increased the surety's
risk. See Vaughan v. Farmers, etc., Bank, 146 Ga. 51, 9(
S. E. 478; Lott v. Peterson, 23 Ga. App. 458, 98 S. E. 361;
Duckett v. Martin, 23 Ga. App. 630, 99 S. E. 151; Morris v.
Reed, 14 Ga. App. 729, 82 S. E. 314; Jones v. Pope, 7 Ga.
App. 538, 539, 67 S. E. 280. The effect of this legislation
was to nullify, among other penalties under the former law,
the rule voiding a waiver of homestead and exemption. The
defense of the surety was therefore without merit. Laing
v. Hinesville Bank, 31 Ga. App. 416, 120 S. E. 799.
Same — Altering Instrument to Increase Interest. — See note
to § 3543.
Effect upon Deed Tainted with Usury. — A deed executed
by a borrower, since this section to secure a debt infected
with usury, and purporting to convey the title to the lender,
is not void because so infected with usury. The only pen-
alty to be incurred under the above act is to forfeit the en-
tire interest charged or taken, or contracted to be reserved,
charged, or taken. Poulk v. Cairo Banking Co., 158 Ga. 338,
123 S. E. 292.
Relief of Maker — Tender of Principal. — Before a borrower,
who has executed a deed infected with usury, can have
affirmative equitable relief, such as injunction to prevent
exercise of the power of sale by the grantee in such security
deed, he must pay or tender to the grantee the principal
sum due. Poulk v. Cairo Banking Co., 158 Ga. 338, 123 S-
E. 292. For further treatment of this doctrine, see 11 Cum.
Dig. 251, 12 Enc. Dig. 499.
Recovery of Usury Paid — Limitation. — See § 3441.
Judgment Does Not Bear Interest. — Where usurious in-
terest is reserved for a loan contracted since this act, and
in a suit by the lender against the debtor, a judgment is
rendered for the principal only, the interest being usurious
thereunder, which does not bear interest. And this is true
notwithstanding that § 3432 provides that all judgments
shall bear interest upon the principal amount recovered.
Daniel v. Gibson, 72 Ga. 367, 53 Am. R. 845, citing Tennille
Bank Co. v. Quinn, 156 Ga. 159, 118 S. E. 644.
This is true where a judgment for the true principal ad-
mitted to be due is rendered upon a promissory note even
though a certain sum has been reserved as usurious inter-
est. Daniel v. Gibson, 72 Ga. 367, 53 Am. R. 845, citing
Tennille Bank Co. v. Quinn, 156 Ga. 159, 118 S. E. 644.
§ 3438(2). No further penalty. — No further
penalty or forfeiture shall be occasioned, suffered
or allowed further than as stipulated in Section
3438(1) hereof (the entire interest). Acts 1916,
p. 48.
See note under § 3438(1).
§ 3439. (§ 2889.) Forfeiture may be pleaded as
set-off. — The amount of forfeit as aforesaid may
be pleaded as a set-off in any action for the re-
covery of the principal sum loaned or advanced by
the defendant in said action. Acts 1875, p. 105.
See § 3460.
Usury in One of Two Notes. — Where two notes were given,
usury paid on the first one may be pleaded as a set-off on
a suit upon the last. Rackley v. Pearce, 1 Ga. 241.
Right of Surety. — A surety whose principal has been ad-
judged a bankrupt, when sued for the debt on which he is
surety, can not set-off against it usurious interest paid by
his principal to the creditor on a transaction other than the
one out of which the debt arose, on which the surety is
sued. Woolfolk v. Plant & Son, 46 Ga. 422.
National Banks. — Where illegal interest has been actually
paid to a national bank, the amount so paid can not be ap-
plied by way of set-off or payment in an action by the bank,
as the only remedy in such case is that of an action of debt
under the national banking act to recover twice the amount
of interest paid. Young v. First Nat'l Bank, 22 Ga. App.
58, 95 S. E. 381.
No Affirmative Recovery Allowed Unless Within One
Year. — Under this section though the amount of usury paid
may be pleaded as a set-off in an action for the recovery of
the principal sum loaned, with legal interest, yet no affirma-
tive recovery can be had for the usury paid more than a
year before the filing of the plea. Mcintosh v. Thomas -
ville Real Estate, etc., Co., 141 Ga. 105, 80 S. E. 629. See
§ 3441.
Amendment to Plea to Recover Excess. — In the original
plea, the defendant did not attempt to recover any money as
paid in excess of what he owed. He pleaded that after
[ 945 ]
3440
INTEREST AND USURY— GENERAL PRINCIPLES
§ 3444
eliminating usury, the payment extinguished the debt. He
amended the plea, by adding one of set-off to recover the
excess paid as usury, but this amendment did not relate back
to the filing of the plea so as to escape the bar of the stat-
ute of limitations. Mcintosh v. Thomasville Real Estate,
etc., Co., 141 Ga. 105, 80 S. E. 629.
Verbal Agreement to Pay 8 Per Cent, in Consideration of
Forbearance. — Where it was verbally agreed that in con-
sideration of the makers of a note paying eight per cent,
interest instead of six for two years the holders of the note
would not collect it for that period such excess paid could
neither be recovered or credited on the principal. Strickland
v. Bank, 141 Ga. 565, 81 S. E- 886.
§ 3440. (§ 2890.) Forfeiture, how discharged.
—No contrivance or arrangement between the
parties to any such unlawful transaction, or their
privies, shall have the effect to discharge such for-
feiture except it be an actual and full payment of
the amount so forfeited. Acts 1875, p. 105.
Scope of Section. — This section has reference to preceding
sections touching the forfeiture of excess interest charged on
taken or contracted to be reserved, charged or taken under
the laws of this state. Young v. First Nat'l. Bank, 22
Ga. App. 58, 65, 95 S. E. 381.
Effect of Section. — Under this section nothing can defeat
the plaintiffs right to recover except repayment of the
usurious interest. This section and § 3438 gave him the ex-
press right to recover the usurious interest any time within
one year of payment thereof. Kennedy v. Baggarley, 15 Ga.
App. 811, 84 S. F. 211.
Validity of Homestead Waiver. — There is nothing in this
section or § 3441 which militates against the view that a
waiver of the right of homestead and exemption, made as
part of a usurious contract is void. Cleghorn v. Greeson,
77 Ga. 343.
Now, under § 3448(2) which states that no other penalty
than forfeiture of entire interest is allowed, a waiver of
homestead and exemption is good. See notes to § 3848C1).
Fd. Note.
§ 3441. (§ 2891.) Suit for forfeiture, when
barred. — Any plea or suit for the recovery of
such forfeiture shall not be barred by lapse of
time shorter than one year. Acts 1875, p. 105.
See notes to §§ 3439, 3440. , For historical outline as to
forfeiture and punishment, see 12 Fnc. Dig. 517, 518. As to
what plea must set forth, see § 5674.
Scope of Section. — The one-year period of limitation for the
recovery by plea or suit for a forfeiture of usurious interest
has reference to a set-off claiming such forfeiture, and to
suits to recover usury which has been paid. Thus, where
usurious interest has been paid and applied as such, this
section is applicable in a suit brought on the obligation.
Lankford v. Peterson, 21 Ga. App. 1 ; Laing v. Hinesville
Bank, 31 Ga. App. 416, 120 S. F- 799; Cheapstead v. Frank,
71 Ga. 549.
Limitation of Two Years in National Banking Act. — The
statutory limitation of two years in the national banking
act of June 3, 1864, c. 106, 13 Stat. 99, applies only to a suit
to recover the penalty of double the interest received or
paid, and not to the defense of usury to defeat the recovery
of interest, and begins to run from the time of payment of
the usurious interest. Young v. First Nat'l. Bank, 22 Ga.
App. 58, 95 S. F- 321.
Payment of Usury on Series of Independent Notes. — Where
original contract was untainted, and successive agreements
for usury under the name pi rent were superadded, each be-
ing independent of the others, then each is governed by the
law of usury existing at the time it was made, and pay-
ments thereon in excess of the legal rate of interest can be
applied to the original debt by plea of set-off only, which
plea must be filed within the period of limitation applicable
to an action for recovering back usury. Wilkinson v.
Wooten, 59 Ga. 584.
Plea of Payment. — A plea alleging payment of a debt in-
fected with usury may be properly filed to an action on the
debt, notwithstanding more than twelve months have
elapsed after the payment before the plea is filed. Atlanta
Sav. Bank v. Spencer, 107 Ga. 629, 33 S. E. 878; Lankford
v. Peterson, 21 Ga. App. 1, 93 S. E. 499; Haskins v. Bank,
100 Ga. 216, 27 S. E- 985.
Annual Accountings Will Not Constitute a Departure. —
Where the original transaction was usurious, the law applies
all payments made on the debt to the principal and legal in-
terest; and though these payments be made on annual
settlements, these annual accountings will not constitute a
new point of departure from which the limitation against
the recovery of usury will begin to run. Archer v. McCray,
59 Ga. 546.
Recovery for Unpaid Stock Subscriptions. — Where the pro-
ceedings were begun in 1897 to foreclose the defendant and
it appeared that in 1883, $143,500 was in payment of $161,500
worth of stock at 90, and the stock was a bonus, the lia-
bility of the original purchaser and subscriber for unpaid
subscriptions is barred by this section. Weed v. Gaines-
ville, etc., R. Co., 119 Ga. 576, 46 S. E. 885.
Suit to Recover Lands. — Where a bill was filed in 1876, to
set aside deeds to lands, on the ground of usury in the con-
sideration or to recover back the usury received by the
lender, and where, in January 1874 the lands were received
by the lender in payment of the debt, such bill is barred by
this section. Everett v. Planters Bank, 61 Ga. 38.
Contest between Creditors. — Any plea or suit for the re-
covery back of usury voluntarily paid by a debtor to his
creditor must be brought within a period of one year after
such payment is made. Hence, in a contest between two
creditors over the assets of their insolvent debtor, one
creditor can not make the other account for usury volun-
tarily paid him by the debtor before insolvency, without in-
stituting proceedings for this purpose within twelve months
from the time of such payment. Gramling, etc., Co. v.
Pool, 111 Ga. 93, 36 S. E- 430.
Applied in Lee v. King, 142 Ga. 609, 83 S. E- 272; Poulk
v. Cairo Banking Co., 158 Ga. 338, 123 S. E. 292; King Bros.
& Co. v. Moore, 147 Ga. 43, 92 S. E. 757; Finney v. Brumby,
64 Ga. 510.
§ 3442. (§ 2892.) Titles tainted with usury
void. — Repealed by Acts 1916, p. 48.
See §§ 3438(1), 3438(2), and notes thereto.
§ 3443. (§ 2893.) Inconsistent laws repealed. —
Every provision in the charter of any corporation,
granted since the 1st day of January, 1863, incon-
sistent with the foregoing provisions of this Arti-
cle, is hereby repealed. Acts 1875, p. 155.
Act 1873 Repealed All Laws on Usury.— The act of 1873
repealed all laws on usury and while in force conventional
interest was unlimited. Broach v. Barfield, 57 Ga. 601;
Neil v. Bunn, 58 Ga. 583.
A deed executed while act of 1873 was in effect could not be
usurious. Cooper v. Broswell & Son, 59 Ga. 616.
Act 1873 Repealed by Act 1875.— The act of 1873 was itself
repealed by the act of 1875. Cooper v. Braswell & Son, 59
Ga. 616.
Act 1881 Does Not Repeal or Modify Act 1879.— The act of
1881 does not repeal or modify the second section of the act
of October 1879 save as to contracts entered into subsequent
to amending act. Maynard v. Marshall, 91 Ga. 840, 18 S.
E. 403.
§ 3444. Rate greater than five per cent, per
month punished. — It shall be a misdemeanor for
any person, company, or corporation to reserve,
charge, or take for any loan or advance of money,
or forbearance to enforce the collection of any
sum of money, any rate of interest greater than
five per cent, per month, either directly or indi-
rectly, by way of commission for advances, dis-
count, exchange, the purchase of salary or wages,
by notarial or other fees, or by any contracts, or
contrivance, or device whatever; save and except
only that regularly licensed pawnbrokers, where
personal property is taken in their actual physical
possession and stored by them, may charge, in
addition to said rate of interest, not exceeding
twenty-five cents at the time said property is first
taken possession by them for the storage of said
property. Acts 1908, p. 83.
Cross References. — See, §§ 3436, 3438(1) and notes thereto.
For full treatment of this section, see 11 Cum. Dig. 242, 243.
As to punishment for violation of this section, see P. C, §
700.
Purpose and Scope of Section. — The sole purpose of this
section is to make it penal "to reserve, charge, or take"
interest for the use of money in excess of five per cent,
per month, under any contract where the relation of debtor
and creditor is created or survives. The absolute sale of
property is not included within the terms of the act. Jack-
[ 946 ]
§ 3445
BUSINESS OF LOANS ON PERSONAL PROPERTY
§ 3451
son v. State, 5 Ga. App. 177, 62 S. E. 726. See also, Tollison
v. George, 153 Ga. 612, 615, 112 S. E. 896.
Constitutionality. — This section does not violate the con-
stitution of this state; nor does it violate the ninth or four-
teenth amendment to the constitution of the United States.
King- v. State, 136 Ga. 709, 71 S. E. 1093.
Sale and Assignment of Choses in Action.— This section
does not prohibit the sale and assignment of choses in ac-
tion arising ex contractu. The right to purchase the salary
or wages of another, the right of the latter to sell the same,
and the right to charge a greater rate of discount on such
purchases other than 5 per cent., are not affected by this act.
"The act never intended to interfere with the right of the
citizen to make a bona fide contract for such purchases or
sale, or charges, save as a part of an usurious transaction,
and there is nothing in the act authorizing a construction
that the right to make such contracts is thereby impaired.
King v. State, 136 Ga. 709, 71 S. E. 1093; Ison Co. v. At-
lantic Coast Line R. Co., 17 Ga. App. 459, 87 S. E. 754. See
also, Tollison v. George, 153 Ga. 612, 616, 112 S. E. 896.
Wages May Be Assigned. — This section does not make
unlawful the assignment of wages save when connected with
a loan at usurious rates. Jackson v. Johnson, 157 Ga. 189,
121 S. E. 230. See also, Tollison v. George, 153 Ga. 612, 112
S. E. 896. But as to the validity of assignment of unearned
wages, see § 3465.
Where a petition does not allege that there was a loan or
advance or that defendant took the assignment of wages to
secure a loan at a usurious rate, but on the contrary re-
ferred to the transaction as a sale of wages, the case does
not come under this section. Jackson v. Johnson, 157 Ga.
189, 191, 121 S. E. 230.
Transaction Lawful Save Where Coupled with Loan. — This
section does not make unlawful a transaction wherein there
is a charge by way of commission for advances, discojunt,
exchange, or fees, or the purchase of salary or wages, save
where connected with a loan and directly or indirectly con-
stituting all or a part of a reservation, charge, or taking,
for a loan or advance of money, or forbearance to enforce
the collection of a sum of money, a rate of interest greater
than 5 per cent, per month. King v. State, 136 Ga. 709, 71
S. E. 1093. See also, Tollison v. George, 153 Ga. 612, 616,
112 S. E. 896.
Section Does Not Annul Contract. — This section which
makes it a misdemeanor to charge more than a certain rate,
does not attempt to annul the contract for § 3445, says that
it shall not be construed as repealing or impairing usury
laws now existing. West v. Atlanta Loan, etc., Co., 22
Ga. App. 184, 95 S. E- 721; Citizens Bank v. Hoyt & Co.,
25 Ga. App. 222, 102 S. E. 837.
Section Does Not Render Mortgages Void. — The fact that
the charging or taking of interest in excess of five per
cent, per month is made a misdemeanor, punishable by fine
and imprisonment, does not render the mortgage absolutely
void, since the laws of this state provide for the status of
usurious contracts, including mortgages. Croom v. Jordan,
20 Ga. App. 802, 93 S. E. 538.
Borrower Must Tender Lawful Amount. — Although under
this section it is a misdemeanor to reserve or charge inter-
est greater than five per cent, a borrower can not maintain
.an action in equity for the surrender and cancellation of a
usurious salary assignment, and for injunction against the
lender "filing" it with the borrower's employer (whose cus-
tom is to discharge employees who assign their salaries),
without payment or tender of the actual money received,
with lawful interest. Whoever would have equity must do
equity. Patterson v. Moore, 146 Ga. 364, 91 S. E. 116.
§ 3445. Preceding section is cumulative. —
The preceding section shall not be construed as
repealing or impairing the usury laws now exist-
ing, but as being cumulative thereto.
ARTICLE 2.
Business of Loans on Personal Property.
§ 3446. License required. — No person, firm,
or corporation shall engage generally, regularly,
or collaterally to any other business, in the busi-
ness of making loans on household or kitchen fur-
niture, or household goods, or wearing apparel, or
sewing-machines, or musical instruments, or
wages, salaries, or in the business of buying
wages or salaries, without first obtaining a license
for carrying on such business. Acts 1904, p. 79.
§ 3447. License, by whom issued. — The license
under which said busniess shall be conducted shall
be issued, if the business is sought to be conducted
within the limits of an incorporated city or town,
by the officer of such city or town whose duty it is
to issue licenses granted by the authority of such
corporation; and if without the limits of an incor-
porated city or town, said license shall be issued
by the ordinary of the county within which said
business is sought to be conducted. The ordinary
or officer issuing the license shall receive, for each
license so issued, a fee of one dollar and fifty cents,
to be paid by the applicant.
As to duty of clerk issuing license, see § 4808.
§ 3448. How obtained. — The applicant for license
shall, before the same is issued, file with the officer
authorized to issue it a statement on oath, giving
the location where such business is to be con-
ducted, the name and the private and business ad-
dresses of the applicant if the licensee is an in-
dividual, the name and the private and business
addresses of each of the partners if the licensee is
a firm, and the name and the private and business
addresses of each of its officers if the licensee is a
corporation, and, in the case of a corporation, the
State under the laws of which it is organized.
§ 3449. Licensee to give bond. — No license
shall be issued to any person, firm, or corporation
to carry on the business as specified in this
Article, until the applicant shall file with the ordi-
nary of the county, or with the mayor of the town,
wherein said business is to be conducted a bond
with good security, in the penal sum of five hun-
dred dollars, payable to the mayor of the city, or
the ordinary of the county, in which said business
is to be conducted, and their successors in office,
for the faithful performance by the licensee of the
duties and obligations pertaining to the business
so licensed, and the prompt payment of any judg-
ment which may be recovered against said licensee
on account of damages or other claim arising di-
rectly or collaterally from any loan of money or
sale of wages or salary. Said bond shall not be
valid until it shall be approved by the mayor of
said town, or by the ordinary of said county.
Tax on Occupation Requiring Bond. — A tax ordinance fix-
ing the amount of tax to be levied upon an occupation, and
requiring the person engaged in this occupation to give a
bond in conformity with the act of the General Assembly,
is not void as to the tax, even though that part of the ordi-
nance requiring the bond may be invalid. Augusta v. Clark
& Co., 124 Ga. 254, 52 S. E. 881.
§ 3450. Not transferable; change of location. —
The license, when issued, shall not be transfer-
able; and should the licensee change the location
of his business, the license shall immediately be-
come void, unless the licensee shall, ten days be-
fore changing the location, file with the officer au-
thorized to issue the license a notice of the pro-
posed change of location. And upon so changing
the location the licensee shall have the officer issu-
ing the license endorse upon it a permit authoriz-
ing the change. In default of compliance with
these provisions the license shall be null and void.
The license shall at all times be kept publicly ex-
posed by the licensee on his business premises.
§ 3451. Sureties on bond subject to suit. — Who-
ever shall have anv cause of action against said li-
[947]
§ 3452
BUSINESS OF LOANS ON PERSONAL PROPERTY
§ 3460
censee for a violation of any legal duty or obliga-
tion arising collaterally or directly out of any loan
of money, or sale of wages or salary, provided for
in this Article, may join in said suit the surety or
sureties on said bond, and shall have the right to
recover from the licensee and said sureties as
though the plaintiffs were the obligee in the bond.
§ 3452. Additional bond may be required. —
Should any surety on such bond become insolvent,
the ma}ror of the town or city, or the ordinary or
grand jury of the county, shall immediately re-
quire the licensee to file an additional bond with
good security; and on failure to do so within ten
days after notice, licensee shall stand ipso facto
revoked.
§ 3453. Sale or assignment of wages. — Any
sale or assignment of wages, or salary, whether
made for the purpose of securing a debt in exist-
ence before said assignment is made, or for the
purpose of procuring an advancement of money at
the time the assignment is made, shall be governed
in all respects by the provisions of this Article;
and the rate of discount on any sale or assignment
of salary or wages shall not be greater than the
rates and fees prescribed in sections. 3458 and 3459
of this Article.
See 2 Cum. Dig. 167. As to assignment of choses in ac-
tion, see § 3653, and notes thereto.
§ 3454. Book to be kept, what it shall show. —
Every licensee governed by the provisions of this
Article shall keep, on the premises where such
business is conducted, a book in which shall be re-
corded, consecutively numbered, legibly written
in English, at the time of making each loan, the
name and residence of the borrower, the amount
of the loan, the time of maturity, the rate of in-
terest, the fees charged in connection with the
loan, and a full description of the security; and the
licensee shall at the time give to the borrower,
legibly written in English, a duplicate statement
of the entry in said book, which statement shall
be signed by the licensee, or a duly authorized
agent or employee, and numbered to correspond
with the number in said book.
§ 3455. Renewals and partial payments. —
Whenever any loan governed by the provisions of
this Article shall be renewed, or the borrower shall
make a partial payment thereon, an entry shall be
made on the book referred to in the preceding
section, giving the particulars of the renewal or of
the partial payment, and the borrower shall be
given a legibly written duplicate of the entry so
made. When the loan shall be paid in full, a
proper entry to that effect shall be ma.de upon the
book, and the borrower shall immediately be given
a receipt in full and a cancellation of the mort-
gage or lien given to secure the debt.
§ 3456. Book open to inspection. — Said book
shall at all times, during the usual business hours,
be open to the inspection of the ordinary of the
county, or the grand jury of the county in which
said business in conducted, or to any person au-
thorized in writing by such ordinary, or grand
jury, to inspect said book.
§ 3457. Failure to keep the book or refusing in-
spection. — Should the book not be faithfully or
correctly kept, or should any licensee, or the agent
or officer of any licensee, refuse to allow the in-
spection of said book by any one authorized to in-
spect the same, or wilfully hinder or delay such
person in said inspection, the license under which
the business is conducted shall stand ipso facto
revoked.
§ 3458. Fee for investigating the security or
title. — If it be agreed on in writing by the
borrower and lender at the time the loan is made,
the lender may charge, for investigating the
security or title and closing the loan, a fee of not
more than fifty cents where the amount borrowed
is five dollars or less; not more than seventy cents
where the amount is more than five dollars and
not more than ten dollars; not more than one
dollar where the amount borrowed is more than
ten dollars and not more than twenty dollars; not
more than one dollar and a half where the amount
borrowed is more than twenty dollars and not
.more than thirty-five dollars, and not more than
two dollars where the amount borrowed is more
than thirty-five dollars and not more than sixty
dollars; which said fee may be charged if so
agreed upon each original loan, or any renewal
thereof: Provided, however, that no fee whatever
shall be allowed on any renewal or extension
which occurs within thirty days from the time of
making the loan or from the time of the last re-
newal : And provided further, that the fee provided
for in this section shall not be charged on any re-
newal made after the expiration of four months
from the date of the original loan, but that all re-
newals made after said four months shall be at a
fee not greater than one half the amount herein
provided.
See § 3436.
§ 3459. Fees, original and pre-existing loans. —
Any loan which shall be made between the parties
immediately upon, or a short time after, the pay-
ment of a pre-existing loan of approximately the
same amount shall be construed in all cases to be
a renewal of said pre-existing loan. No original
loan shall be split up into smaller loans in order to
increase the fees allowed; but if two or more loans
are made at or about the same time between the
same parties, they shall be construed to be but one
original loan, unless the contrary plainly and un-
equivocally appears. On loans of sixty dollars or
more, the borrower may, if agreed upon, pay such
fees as will be a fair and reasonable compensation
for services actually rendered, if any, by the lender
in examining the title or the property pledged as
security, but in no event to be more than six per
cent, of the amount of the loan; and this fee shall
not be paid on any renewal of said loan.
See § 3436. As to commissions when not usurious, see §
3437. As to prima facie presumption, see § 5740. As to es-
toppel, see § 5736.
§ 3460. Usury, how considered. — Any interest
charged by the lender to the borrower in excess of
the present legal rate of interest, or any fee, fine,
or charge whatsoever, charged by the lender
against the borrower, whether for negotiating a
loan, or for commissions, examination, attorney's
fees, or any other bonus or charge whatsoever,
additional to those allowed in this Article, and any
[ 948 ]
§ 3461
BAILMENTS— GENERAL, FK1 WClFLJib
§ 3467
charge of more than six per cent, of the amount
of any loan of more than sixty dollars, shall be
considered as a payment on the principal of said
loan, and the same shall be credited with the
amout of such additional charge or excess.
As to how payment is applied to debt, see § 3433. As to
how forfeiture of the usury pleaded, see § 3439.
Allegations Insufficient to Authorize Relief. — Insofar as the
petition sought equitable relief by enjoining the defendants,
from bringing suit against the petitioner or causing process
of garnishment to issue thereon, the allegations were insuffi-
cient to authorize the relief prayed. Lee v. King, 142 Ga.
609, 83 S. E. 272.
Demurrer Does Not Prevent Plea of Payment. — The sus-
taining of a demurrer to an equitable petition to prohibit
defendant from causing garnishment to issue should not be
taken to prevent any proper plea of payment to an action
at law on the note. Lee v. King, 142 Ga. 609, 83 S. E- 272.
Allegations Irrevelant. — Allegations that petitioner had
borrowed money from other persons who were characterized
as "money sharks" and that he had paid usury to them,
and had borrowed from one to pay another until he had ex-
hausted his borrowing capacity, were irrelevant to any issue
sought to be made between the plaintiff and defendant. Lee
v. King, 142 Ga. 609, 83 S. E. 272.
§ 3461. Charge of sums not actually paid un-
lawful. — It shall be unlawful for any licensee un-
der this Article to charge any sum of money for
fire-insurance on any article of personal property
pledged as security for any loan, or anjr fee for re-
cording any papers connected with any loan or
sale, under the terms of this Article, except such
as are actually paid by such licensee.
See § 3436.
§ 3462. Penalty for failure to obtain license. —
If any person, firm, or corporation shall engage
generally, regularly, or collaterally to some other
business, in the business of making loans or pur-
chasing wages or salaries, as prescribed in this
Article, without first obtaining a license for carry-
ing on such business in the city, town, or county
in which said business is transacted, or shall con-
tinue to conduct said business after forfeiture or
cancellation of the license under which the same is
conducted, such person, each and every member of
such firm, or each and every officer of such cor-
poration shall forfeit the license and all interest
charged on the loan.
§ 3463. When license becomes void. — If any
licensee under this Article shall violate any of the
provisions of this Article or shall charge for the
making of any loan any rate of interest in excess
of eight per cent, per annum, or any fee or bonus
in excess of those provided in this Article, the
license under which sail business is conducted
shall become ipso facto void.
§ 3464. Oath to obtain criminal warrant. —
Before any criminal warrant shall be issued by any
justice of the peace, or notary public and ex-officio
justice of the peace, at the instance of any licensee
under this Article against any borrower from such
licensee, vendor of wages or salary, where the
criminal charge grows out of the relationship of
such lender and borrower or vendor and vendee,
such licensee, his agent, or employee shall, in addi-
tion to the affidavit now required by law to be
taken, take and subscribe to the following oath:
"I do solemnly swear that I have neither directly
nor indirectly, by myself, agent, or employee, nor
has the lender or vendee, directly or indirectly, by
himself, his agent, or employee, exceeded, in his
charges against the accused named herein, the
fees prescribed in the Act to regulate the business
of money-lending, passed by the legislature of
1904, nor has there been charged against or col-
lected from the accused named herein, either di-
rectly or indirectly, more than the lawful rate of
interest."
§ 3465. Pledge of unearned wages or salary un-
lawful. — Any contract made after August 15th,
1904, for the assignment or pledge of any un-
earned wages or salary, for the purpose of secur-
ing a loan of money, shall be void.
Valid as to Part of Wages Earned. — Under this section, an
assignment by an employee of a railway company of his
wages, earned and to be earned, up to a specific date, for
the purpose of securing a loan of money, is void as to that
part of his wages not earned at the date of the assignment.
Central of Georgia v. Dover, 1 Ga. App. 240, 57 S. E. 1002.
Filling Blanks on Assignment. — A present conveyance of
authority to execute a salary order or to complete an as-
signment of wages, by filling in certain blanks, when the
wages have not been earned at the time that the assign-
ment is signed in blank, is void. Atlanta Finance Co. v.
Southern R. Co., 15 Ga. App. 663, 84 S. E. 147.
Jurisdiction of Municipal Court. — A suit to recover a cer-
tain sum of money in an amount within the jurisdiction of
the municipal court of Atlanta, although predicated upon
so-called salary assignments which are invalid under this
section, because such assignments assign future and un-
earned salary, is within the jurisdiction of the municipal
court of Atlanta, and, despite the invalidity of the assign-
ments, the judgment is nevertheless a valid and legal one.
Lester v. Rogers, 31 Ga. App. 590, 121 S. E. 582.
Applied in King & Co. v. Cantrell, 4 Ga. App. 263, 61 S.
E. 144; Bower v. King & Co., 14 Ga. App. 319, 80 S. E. 696.
§ 3466. Banks and pawnbrokers excepted. —
None of the provisions of this Article shall apply
to or in any way affect any regularly chartered
bank, or any firm or person engaged regularly in
buying or selling exchange, making collections, or
receiving deposits; nor shall any of the provisions
of this Article be construed to apply to pawn-
brokers, or to affect any existing laws relating to
pawnbrokers.
CHAPTER 13.
Of Bailments.
ARTICLE 1.
General Principles.
§ 3467. (§ 2894.) Definition. — A bailment is
a delivery of goods or property for the execution
of a special object, beneficial either to the bailor
or bailee, or both; and upon a contract, express or
implied, to carry out this object and dispose of the
property in conformity with the purpose of the
trust.
Cross References. — See 2 Cum. Dig. 2.53 et seq. ; 2 Enc.
Dig. 205 et seq. As to definition of and degree of care re-
quired of a common carrier, see § 2712. As to distinction
between bail and estate for years in personal property, see
§ 3686.
Definition Given. — Baugh v. McDa'niel, 42 Ga. 641, 655;
Cabaniss v. Ponder, 65 Ga. 134, 138; Jenkins v. Seaboard
Air-Line Ry., 3 Ga. App. 381, 386, 59 S. E- 1120.
Essentials' — Delivery of Property. — See Massillon Engine,
etc., Co. v. Akerman, 110 Ga. 570, 572, 35 S. E. 635; Atlantic
Coast Line R. Co. v. Baker, 118 Ga. 809, 811, 45 S. E- 673.
Duties of Bailee — See Hines v. Chappell, 1 Ga. App. 480,
482, 58 S. E. 220.
Illustrations — Facts Constituting Bailments. — See Cabaniss
v. Ponder, 65 Ga. 134, 138; Massillon Engine, etc., Co. v.
Akerman, 110 Ga. 570, 35 S. E. 635; Bates v. Bigby, 123
Ga. 727, 51 S. E. 717; Fain v. Wilkerson, 22 Ga. App. 193,
[ 949
§ 3468
BAILMENTS— GENERAL PRINCIPLES
§ 3471
95 S. E. 752; Bostwick-Gooddell Co. v. Wolff, 19 Ga. App.
61, 90 S. E. 975.
§ 3468. (§ 2895.) Property in bailee. — In all
cases the bailee, during the bailment, has a right
to the possession of the property, and in most
cases a special right of property in the thing
bailed. For a violation of these rights by any one
he is entitled to his action.
See 2 Cum. Dig. 533-5; 2 Enc. Dig. 211. As to suit by
bailor for bailee's conversion, see § 3482.
Bailee and Lessee Distinguished. — In Lang v. Hitt, 149
Ga. 667, 101 S. E. 795; Lang v. Hitt, 24 Ga. App. 714, 102
S. E. 136, it was held that a "lessee," as the term is used
in § 20 of the prohibition Act of 1917, though having a
special property in the vehicle or conveyance entrusted to
him, is not a "bailee," as that term is used in this sec
tion.
Action May Be Ex Debito or Ex Contractu. — See Ford
& Co. v. Atlantic Compress Co., 138 Ga. 496, 75 S. E. 609.
Bailee May Bring Trover.— A bailee for hire has such
title and right of possession as will authorize it under this
section and § 4482 to maintain a suit in trover. McWhorter
v. Moore, 7 Ga. App. 439, 67 S. E. 115; Macon, etc., R. Co.
v. Heard Bros., 27 Ga. App. 382, 108 S. E. 481.
§ 3469. (§ 2896.) Burden of proof. — In all
cases of bailment after proof of loss, the burden of
proof is on the bailee to show proper diligence.
Cross References.— See 2 Cum. Dig. 541-2; 2 Enc. Dig.
214.
As to necessity for bailee to show absence of contributory
negligence, see § 2713. As to burden of proof on railway
companies, see § 2780. As to presumption when guest at
inn loses property, see § 3511.
Application. — For list of cases quoting and applying sec-
tion, see references to Digests given above. In addition,
see Renfroe v. Fouche, 26 Ga. App. 340, 106 S. E. 303;
Atlantic Cadillac Co. v. Manley, 29 Ga. App. 522, 116 S.
E. 35; Parker Motor Co. v. Spiegal, 33 Ga. App. 795, 797, 127
S. E. 797.
Meaning of "Loss."— By this section in all cases of bail-
ment, after proof of loss, the burden is on the bailee to
show diligence. Loss, as used in this rule of law, does
not mean merely a casual losing of the thing bailed, but
is used in the sense of damage or injury. Hawkins v.
Haynes, 71 Ga. 40. See also Western Union Tel. Co. v.
Fontaine, 58 Ga. 433, 437; R. & D. R. R. Co. v. White,
88 Ga. 805, 15 S. E. 802; The Central Railroad Co. v. Has-
selkus, 91 Ga. 382, 385, 17 S. E. 838; Allen v. Southern R.
Co., 33 Ga. App. 209, 126 S. E. 722.
Rule Applies to Carriers.— See Central R. & B. Co. v.
Anderson, 58 Ga. 394, 396; Rome Railroad v. Wimberly, 75
Ga. 316; Holly v. Southern Ry. Co., 119 Ga. 767, 769, 47 S. E.
188; Southern Ry. Co. v. Edmundson, 123 Ga. 474, 477. And
see also Western Union Tel. Co. v. Blanchard, etc., Co.
68 Ga. 299, 308.
Same— In Intrastate Commerce Only.— "The State statu-
tory rule _ as to the burden of proof in bailments is appli-
cable to intrastate shipments such as in the instant case,
although, under the ruling of the United States Supreme
Court, a different rule prevails as to interstate shipments.
Central of Ga. Ry. Co. v. Owens, 28 Ga. App. 140, 142, 143,
110 S. E. 339; Davis v. Pearlman, 29 Ga. App. 12,
113 S. E. 44; So. Ry. Co. v. Prescott, 240 U. S. 362, 36
Sup. Ct. 469, 60 L. Ed. 836." Allen v. Southern R. Co., 33
Ga. App. 209, 126 S. E. 722.
Warehousemen.— See Almond v. Georgia R. Co., 95 Ga.
776, 777, 22 S. E. 674; Netzow Mfg. Co. v. Southern Ry.
Co., 7 Ga. App. 163, 164, 66 S. E. 399; Allen v. Southern
R. Co., 33 Ga. App. 209, 126 S. E. 722.
Agistors.— See Wilinsky v. Martin, 4 Ga. App. 187. 189
60 S. E. 1074.
Liveryman.— See Johnson v. Perkins, 4 Ga. App. 633. 635
62 S. E. 152. '
Laundry Company.— Red -Cross Laundry Co. v. Tuten 31
Ga. App. 689, 121 S. E. 865.
Cotton Ginner.— See Concord Variety Works v Beck-
ham, 112 Ga. 242; 37 S. E. 392; McDonald v. Hardee' 22 Ga
App. 96, 95 S. E. 320.
Cotton Compress Co.— See Atlantic Compress Co. v. Cen-
tral, etc., Ry. Co., 135 Ga. 140, 147, 68 S. E. 1028
§ 3470. (§ 2897.) Care and diligence. — All
bailees are required to exercise care and diligence
in protecting and keeping safely the thing bailed.
Different degrees of diligence are required, ac-
cording to the nature of the bailments.
Cross References.— See 2 Cum. Dig. 536; 2 Enc. Dig. 212..
As to diminution of damages recoverable from a carrier
when bailee according to proportionate fault of plaintiff,
see § 2781. As to rule in case of personal injuries, see §
4426.
In General. — See Morris Storage Co. v. Wilkes, 1 Ga.
App. 751, 58 S. E. 232; Hall v. Stone, 11 Ga. App. 269, 75
S. E. 140; Pickering v. Anderson, 12 Ga. App. 61, 76 S. F.
754; Park v. Swann, 20 Ga. App. 39, 92 S. E. 398.
§ 3471. (§ 2898.) Ordinary. — Ordinary dili-
gence is that care which every prudent man takes-
of his own property of a similar nature. The ab-
sence of such diligence is termed ordinary neglect.
Cross References.— See 2 Cum. Dig. 536; 2 Enc. Dig. 212;
4 Cum. Dig. 105; 3 Enc. Dig. 552, 8 Cum. Dig. 809; 9 Enc
Dig. 562. As to diligence required of an agent, see § 3581.
In General. — By this section the standard of ordinary and"
reasonable care is invariable, such care being that of every
prudent man. But the case of a prudent man varies ac-
cording to circumstances dependent upon the degree of
danger. What is the precise legal intent of the term
"ordinary -care" must, in the nature of things, depend upon
the circumstances of each individual case. It is a relative
and not an absolute term. Central R., etc., Co. v. Ryles.
84 Ga. 420, 130, 11 S. E. 499. See also, Western, etc., R. Co..
v. Young, 81 Ga. 397, 415, 7 S. E- 912. For further dis-
cussion, see the cases.
The omission of the words "every prudent man" from
an instruction applying this section was held to be fatal, in
Brown Store Co. v. Chattohoochee Lumber Co., 1 Ga. App.
609, 610, 57 S. E. 1043.
Scope of Section. — While this section has more direct ref-
erence to care of property than care to avoid the con-
sequences to the person arising from negligence, yet the
underlying idea in both instances is what would every pru-
dent man have done under the same or similar circum-
stances. Nashville, etc., Ry. Co. v. Peavler, 134 Ga. 618.
621, 68 S. E. 432.
This section is contained in the chapter of the code per-
taining to "Bailments," but has served as the basis -of a
formula that ordinary care is that degree of care which is
exercised by ordinarily prudent persons under the same or
similar circumstances. Southern Ry. Co. v. Hill, 139 Ga.
549, 554, 77 S. E. 803. For further discussion, see this case.
Care Required for Different Bailments. — If the bailment
is for the benefit exclusively of the bailee, he must use
extraordinary care; if for the mutual benefit of the parties,,
ordinary care; and if for the exclusive benefit of the bailor,,
slight care will suffice. Merchants National Bank v. Guil-
martin, 88 Ga. 797, 799, 15 S. E- 831, 17 L- R. A. 322; Ren-
froe v. Fouche, 26 Ga. App. 340, 106 S. E. 303. See also,
Evans v. Nail, 1 Ga. App. 42, 44, 57 S. E- 1020.
Extraordinary diligence is not required of the bailee under
a contract of hire; and on the trial of an action against
such a bailee by the bailor it was error to give in charge
to the jury the definition of such diligence, as contained
in the next following section. See Harmony Grove Tel.
Co. v. Potts, 24 Ga. App. 178, 100 S. E. 236.
Ordinary, Slight, and Gross Neglect Distinguished. —
In Southern R. Co. v. Davis, 132 Ga. 812, 815, 65 S. E. 131,
after quoting this section and the two sections next fol-
lowing, the court said: "These are different degrees of
negligence as recognized in the law of this state. In some
jurisdictions objection has been made to the use of the
qualifying words, slight, ordinary, and gross, as applica-
ble to negligence, and the courts have preferred to use
the term ordinary neglect or negligence as applicable to a
want of due care under the circumstances, maintaining
that, at last, ordinary diligence, in the light of the cir-
cumstances, is all that is required of any man. Generally
a court can not instruct a jury that certain acts constitute
negligence per se." The distinction between gross negli-
gence and the lack of ordinary care, while not applied in
some jurisdictions, is well recognized in this State. In-
surance Company of North America v. Leader, 121 Ga. 26C,
272, 48 S. E. 973; Seaboard Air-Line Ry. v. Cauthen,
115 Ga. 422, 423, 41 S. E. 653. "Gross Negligence," as
applicable to particular facts and circumstances, in those
jurisdictions where it is recognized is also defined as "the
want of slight care and diligence," "such care as careless-
and inattentive persons would usually exercise under the
circumstances," "want of that diligence which even care-
less men are accustomed to exercise," "carelessness mani-
festly materially greater than want of common prudence,"
"the entire absence of care." 2 Words & Phrases (2d
[950]
§ 3472
tfAlLMJiJN lb — UiiiNJiKAi^ ^KllN ^l^JLiib
§ 347S
Series) 787-789, 792. Many authorities regard gross negli-
gence as the equivalent of wilful and wanton negligence,
although in this State it is not so accounted, unless the
evidence indicates "that entire absence of care which would
raise the presumption of conscious indifference," or that,
with reckless indifference, the person acted with actual or
imputed knowledge that the inevitable or probable con-
sequence of his conduct would be to inflict injury. So. Ry.
Co. v. Davis, 132 Ga. 812, 815, 818, 65 S. E- 131; So. Ry.
Co. v. O'Bryan, 119 Ga. 147, 45 S. E. 1000; Harris v. Reid,
30 Ga. App. 187, 117 S. E- 256.
Same — Question for Jury. — Negligence is a question for
the jury and the charge of the court ought to trust the
jury with the question. The jury has access to the proper
sources of information, through their own observation and
experience. On questions of fact, the jury are the chosen
experts of the law. Bohler v. Owens, 60 Ga. 186, 188.
Care Required of Infant. — See § 3474.
Imputable Negligence of Parent. — See § 3475.
Application. — For cases applying this section without con
struction, see the Digests, as cited above. In addition, see
White v. Knapp, 31 Ga. App. 344, 120 S. E. 796, and cases
there cited.
§ 3472. (§ 2899.) Extraordinary. — Extraordi-
nary diligence is that extreme care and caution
which very prudent and thoughtful persons use in
securing and preserving their own property. The
absence of such diligence is termed slight neglect.
Cross References. — As to extraordinary diligence re-
quired of carriers of passengers, see § 2714; and for the
cases applying that section and this section together, see
3 Cum. Dig. 187 et seq., and 2 Enc. Dig. 723 et seq. As
to the same with respect to common carriers of goods, see
§ 2712 and. note.
Scope of Section. — This section applies to persons as well
as to property. Alabama Midland R: Co. v. Guilford, 119
Ga. 523, 525, 46 S. E. 655.
Circumstances Considered. — In determining what vcrj
prudent and thoughtful persons would do under certain cir-
cumstances, the situation and surrounding facts, including
the existence of an emergency if there was one, are to be
considered. Atlanta, etc., R. Co. v. Jacobs' Pharmacy
Co., 135 Ga. 113, 68 S. E. 1039.
But as this section specifically defines what is meant by
extraordinary diligence, neither the adjudications of other
courts on the subject, nor the definitions in standard dic-
tionaries, need be invoked to throw light upon the sub-
ject. Central, etc., R. Co. v. Johnston, 106 Ga. 130, 136, 32
S. E. 78.
Question for Jury. — The acts and facts constitute the
diligence denned in this section under all the circumstances
of the case is a question for determination by the jury.
Richmond & Danville R. Co. v. White & Co., 88 Ga. 805,
15 S. E. 802. See also, Stiles v. Atlanta, etc., R. Co., 65 Ga.
370, 374.
Ordinary, Slight, and Gross Neglect Distinguished. —
See note to § 3471.
§ 3473. (§ 2900.) Gross neglect. — Gross neg-
lect is the want of that care which every man of
common sense, how inattentive soever he may be,
takes of his own property.
The absence of ordinary diligence is not "gross negli-
gence." Insurance Co. v. Leader, 121 Ga. 260, 272, 48 S. E-
972; Brown Store Co. v. Chattahoochee Lumber Co., 121
Ga. 809, 812, 49 S. E. 839.
Not Synonymous with Wilful and Wanton Misconduct.
— "Though the evfdence may show that a railroad company
was guilty of gross negligence as defined by this section,
the term as thus employed should not be confused with
'wilful and wanton misconduct,' as is sometimes done by
jurists and law-writers. Lanier v. Bugg, 32 Ga. App. 294,
296, 123 S. E. 145; Central of Ga. Ry. Co. v. Moore, 5 Ga.
App. 561, 565, 63 S. E. 642; Harris v. Reid, 30 Ga. App.
187, 117 S. E. 256." Lanier v. Bugg, 32 Ga. App. 294, 296,
123 S. E. 145.
Ordinary, Slight, and Gross Neglect Distinguished. — See
§ 3471, note.
"Man of Common Sense" Means Typical Man of Such
Class. — "The law prescribes a certain standard of care as
to bailments of this kind (gratuitous bailments), and that
standard is not the conduct of the bailee in the particular
case with reference to his own property, but the general
conduct of a class — the conduct of men of common sense,
as a class, in the care of their own property (Code, § 2063
this section) ; and there is no presumption that the con-
[9;
duct of the bailee in the particular case conformed to that
standard." Merchants Nat'l Bk. v. Guilmartin, 93 Ga. 503,
505, 21 S. E. 55. But see Western, etc., R. Co. v. Young,
81 Ga. 397, 415, 7 S. E. 912, for rule in respect to ordinary
care.
Instructions — Whole Definition Required. — A court in
undertaking to give to a jury the definition of this section,
should not omit the words, "how inattentive soever he
may be." Seaboard, etc., R. Co. v. Cauthen, 115 Ga. 422,
41 S. E. 653. See also, Sou. Mut. Ins. Co. v. Hudson, 113
Ga. 434, 440, 38 S. E. 964.
Cited in Epps v. Parrish, 26 Ga. App. 399, 106 S. E. 297.
§ 3474. (§ 2901.) Due care in child. — Due
care in a child of tender years is such care as its
capacity, mental and physical, fits it for exercising
in the actual circumstances of the occasion and
situation under investigation.
Cross References.— See 4 Cum. Dig. 109 et seq.; 3 Enc.
Dig. 559 et seq.; 8 Cum. Dig. 504, 810; 9 Enc. Dig. 282,
562. As to effect of contributory negligence in actions
against railroad companies, see § 2781. As to effect oi
contributory negligence in personal injury actions in
general, see § 4426. As to effect of an infant's consent, see
§ 4490.
Editor's Note. — This section was codified first in the
code of 1895. It arose from the insufficiency of § 3471, and
it was taken from the decisions in Western, etc., R. Co. v.
Young, 81 Ga. 397, 7 S. E. 912, and the same case on an-
other appeal in 83 Ga. 512, 10 S. E. 197, which read an ex-
ception in behalf of minor children into § 3471.
Presumptions. — A child of four years is conclusively pre-
sumed to be incapable of contributory negligence under this
section. Crawford v. Sou. Ry. Co., 106 Ga. 870, 877, 33 S-
E. 826; Williams v. Jones, 26 Ga. App. 558, 106 S. E. 616.
A fortipri the same rule is applicable to a child of less
than four years. See City of Atlanta v. Whitley, 24 Ga.
App. 411, 101 S. E. 2.
But a child over fourteen years is presumptively charge-
able with some degree of diligence as an adult under same
circumstances. See Muscogee Mfg. Co. v. Butts, 21 Ga.
App. 558, 94 S. E. 821; Texas Co. v. Hearn, 23 Ga. App.
408, 98 S. E. 419; Paulk & Fossil v. See, 31 Ga. App. 629,
121 S. E- 845.
Question of Capacity for Jury. — See Canton Cotton Mills
v. Edwards, 120 Ga. 447, 449, 47 S. E. 937; Beck v. Standard
Cotton Mills, 1 Ga. App. 278, 281, 57 S. E. 998; Savannah
Lighting Co. v. Harrison, 20 Ga. App. 8, 11, 92 S. E. 772.
§ 3475. (§ 2902.) Imputable negligence. — For
the negligence of one person to be properly im-
putable to another, the one to whom it is imputed
must stand in such a relation or privity to the neg-
ligent person as to create the relation of principal
and agent. In a suit by an infant the fault of the
parent, or of custodians selected by the parents, is
not imputable to the child.
See 7 Cum. Dig. 115 et seq.; 7 Enc. Dig. 242 et seq. As
to effect of consent by person legally incapable of giving
consent, see § 4490.
Editor's Note. — This section was first codified in the code
of 1895 from the decisions in East Tenn., etc., Ry. Co. v.
Markens, 88 Ga. 60, 62, 13 S. E. 855, and Atlanta, etc., R.
Co. v. Gravitt, 93 Ga. 369, 372, 20 S. E. 550. The first part
of the section is taken from the former case, where it is
conceded that this is the general law; the second is the
conclusion of Justice Sumpkin in the latter case after a
sixteen page discussion of the point, a discussion in which
he reviewed all known decisions on the subject in an effort
to find the true rule in the maze of conflicts and doubts
presented by the authorities.
When Negligence of Driver Imputable to Passenger. — Un-
der this. section negligence by the driver of a private ve-
hicle, contributing to the injury of a person riding therein
by invitation, is not imputable to the injured person, un-
less it is made to appear that the injured person owned
the vehicle, or had some agency or concern in its opera-
tion, such as that the driver was his servant or agent, or
that the two were at the time engaged in a joint enter-
prise for their common benefit, or unless he otherwise had
some right, or was under some duty, to control or influence
the driver's conduct, such as might arise from the obvious
or known incompetency of the driver, resulting from
drunkenness or other cause. Metropolitan R. Co. v. Po-
well, 89 Ga. 601, 602, 16 S. E. 118; Roach v. Western &
Atlantic R. Co., 93 Ga. 785, 786, 21 S. E. 67; Southern Ry.
1]
S &*(*>
n. i xv i in vj
§ <Vk01
Co. v. King, 128 Ga. 383, 385, 57 S. E- 687; Adamson v.
McEwen, 12 Ga. App. 510, 77 S. E. 591; Wilkinson v. Bray,
27 Ga. App. 277, 108 S. E- 133, 134; Seaboard Air-Line Ry.
Co. v. Barrow, 18 Ga. App. 261, 89 S. E. 383; Mayor and
Aldermen v. Waters, 27 Ga. App. 813, 109 S. E. 918.
When Negligence of Parent or Custodian Imputable to
Child. — The negligence of a parent or of a custodian se-
lected by a parent, is not imputable to a child when the
child is itself the plaintiff. See Ferguson v. Columbus, etc.,
Ry. Co., 77 Ga. 102; Herrington v. Macon, 125 Ga. 58, 59.
54 S. E. 71; Crook v. Foster, 142 Ga. 715, 716, 83 S. E.
670; Williams v. Jones, 26 Ga. App. 558, 106 S. E. 616;
Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 495,
118 S. E. 697.
Semble contra when parent is plaintiff. See Savannah
Electric Co. v. Thomas, 30 Ga. App. 405, 408, 118 S. E. 481,
following Air-Line Ry. Co. v. Gravitt. 93 Ga. 369, 20 S.
E- 550. See also, Stamps v. Newton Co., 8 Ga. App. 229,
230, 68 S. E. 947.
Applied in Watson & Powers v. Loughran, 112 Ga. 837,
840, 38 S. E. 82.
ARTICLE 2.
Of Hiring.
§ 3476. (§ 2903.) Contract of hiring. — Hiring
is a contract by which one person grants to an-
other either the enjoyment of a thing, or the use of
the labor and industry either of himself or his
servant, during a certain time, for a stipulated
compensation, or where one contracts for the la-
bor or services of another about a thing bailed to
him for a specified purpose.
Illustrations. — City giving broker use of bonds. Cabaniss
v. Ponder, 65 Ga. 134, 139. Agistment. Arrington Bros.
& Co. v. Fleming, 117 Ga. 449, 43 S. E. 691; Wilensky v.
Martin, 4 Ga. App. 187, 60 S. E. 1074. Barber as to cus-
tomer's hat. Dilberto v. Harris, 95 Ga. 571, 23 S. E. 112.
Cotton to be ginned. McDonald v. Hardee, 22 Ga. App.
96, 95 S. E. 320. Employing telegraph company to send
message. Western Union Tel. Co. v. Fontaine, 58 Ga.
433; Western Union Tel. Co. v. Blanchard & Co., 68 Ga.
299. See also, cases in note to §§ 3467, 3469. Grain to be
threshed. Massillon Engine, etc., Co. v. Akerman, 110 Ga.
570, 35 S. E. 635.
§ 3477. (§ 2904.) Title of hirer. — The hirer of
things acquires a qualified ownership of them for
the time, which entitles him to all their increase
and to the possession and enjoyment of them, dur-
ing the period of bailment, against even the owner
himself.
As to increase of animals, see § 3650.
"The word 'increase' may at first sight be thought to
indicate any increase of value of the corpus, but the illus-
tration given will show that such is not the case. That
word is used in a number of sections of the code (as here)
as indicating the issue of animals, or that which issues
from the principal." Tackson v. Maddox, 136 Ga. 31, 33,
70 S. E. 865.
§ 3478. (§ 2905.) Duty as to delivery. — The
contract may be for the return of the thing or of
like property of the same kind and quality. In
the former case, the risk of death or inevitable ac-
cident is with the bailor, and he can retake posses-
sion immediately at the expiration of the time of
hiring. In the latter case, risk is with the bailee,
and he must deliver the thing hired before the
bailor's interest is revested.
As to effect of loss or destruction of thing hired, see §§
3483, 3492.
§ 3479. (§ 2906.) Obligations of the bailor. —
The obligations of the bailor of things are, to do
no act to deprive the hirer of the use and enjoy-
ment of the chattel during the period of the bail-
ment; to keep the thing in suitable order and re-
pair for the purposes of the bailment; and to war-
rant the right of possession, and that the thing
bailed is free from any secret fault rendering it un-
fitted for the purposes for which it is hired.
Cross References. — See 2 Cum. Dig. 532. As to latent
defect seller must disclose, see § 4139. As to implied war-
ranty against latent defect, see § 4135, par. 3.
In General. — It is the . duty, under this section, of the
bailor to warrant against latent defects. Much more is it
this duty to see that the thing bailed is free from patent
defects which render it unfit for the purposes for which it
is hired. Parker v. Loving & Co., 13 Ga. App. 284, 286,
79 S. E. 77.
"This section is a statutory declaration that due care on
the part of the bailor requires him to examine the thing
bailed for the purpose of seeing that it has no hidden de-
fects which would render it unsuitable for the purposes
for which it was hired. What would be ordinary care de-
pends upon the particular business in hand, the circum-
stances surrounding the particular transaction, and the
situation of the parties." Parker v. Loving & Co., 13 Ga.
App. 284, 286, 79 S. E. 77.
Section not Applicable when Bailee at Fault. — When
owner brought suit for injuries to a horse on the ground
that the defendant, to whom he had hired the horse, con-
tinued to drive the horse after the discovery of the sick-
ness of the animal by the defendant, the charge, under
this section, that the thing bailed must be free from
secret fault, was not applicable. Brannon v. Moore, 135
Ga. 715, 69 S. E. 820. Under the evidence in this case,
however, the charge was not misleading. Ed. Note.
Bailee's Conduct May Constitute Waiver of Bailor's
Breach. — "If the bailee knows of the defect or in the exer-
cise of ordinary care ought to discover it, and, notwith-
standing, his actual or implied knowledge, he uses the
thing and injury results on account of the defect, he will
be held to have waived his right to claim damages, since
by the exercise or ordinary care he could have avoided the
consequences of the bailor's neglect. But what amount of
care the bailee ought to use to discover the defect is a
question of fact for the jury." Parker v. Loving & Co.,
13 Ga. App. 284, 286, 79 S. E. 77.
Third Persons Injured by Bailed Animal. — Where third
person, other than bailor and bailee, is injured by a dan-
gerous animal, he can not recover from the owner unless
he shows that the owner knew or had reasonable grounds
to know of the vicious propensities of the animal and was
wanting in ordinary care. Reed v. Southern Express Co.,
95 Ga. 108, 22 S. E- 133; Browder Co. v. Calhoun Brick
Co., 138 Ga. 277, 75 S. E. 243; Cooper v. Layson Bros., 14
Ga. App. 134, 80 S. E- 666.
§ 3480. (§ 2907.) Engagement of the hirer. —
The engagements of the hirer of things are, to put
the thing to no other use than that for which it is
hired; to take ordinary care in its use; to redeliver
at the expiration of the bailment; and to comply
generally with the terms of hiring. If the bailor
sends his own agents with the thing bailed, as a
driver for his horse, then the hirer is bound, either
to the bailor or to third persons, only for the con-
sequences of his own directions and for gross neg-
lect.
Cross References. — As to responsibility of person for acts
of his wife, child, or servant, see § 4413. As to liability for
wilful trespass of agent, see § 3603.
Degree of Care Required. — The contract of hire being
one of mutual benefit, the hirer is bound only for ordinary
diligence, and of course is responsible only for ordinary
negligence, or for that degree of care and diligence which
the generality of mankind use in keeping their own goods
of the same kind. Mayor and Council v. Howard, 6 Ga.
213; Malone v. Robinson, 77 Ga. 719, 723; Evans & Pen-
nington v. Nail, 1 Ga. App. 42, 45, 57 S. E. 1020. See also
Braunan v. Moore, 135 Ga. 517, 69 S. E. 820.
Effect of Different Use. — If the thing hired is used for a
different purpose, or for a longer period of time, or dif-
ferent manner, than that intended by the party, the hirer
is not only responsible for all damages, but also generally
for loss, although incurred by inevitable casualty. Mayor
v. Howard, 6 Ga. 213. The principle of this case was ap-
plied to the loss of a negro slave in Collins v. Hutchins,
21 Ga. 270, 273.
§ 3481. (§ 2908.) Effect of violation. — For a
violation of the engagements of either party, the
[ 952 ]
§ 3482
HIRING
§ 3491
other may abandon the contract; and in case the
hirer puts the thing to a different use, the bailor
may sue as for a conversion, even though the hirer
be an infant.
See notes to the preceding section as to nature of action
brought for conversion, see § 4483.
§ 3482. (§ 2909.) For torts, who may sue. —
For an interference with the possession, the right
of action is in the hirer; for any injury to the prop-
erty, or any interference with his rights of prop-
erty, the bailor also has his right of action.
Cross References.— As to property in bailee, see §§ 3468,
3491. As to right of action in bailee and bailor for tres-
pass, see § 4486. As to borrower's right of action for in-
terference with the possession, see § 3520.
In General.— The rights of action given by this section
to the bailor and bailee are concurrent. Lpckhart v.
Western & Atlantic R., 73 Ga. 472, 473.
An owner out of possession can recover only for a per-
manent injury to the reversion. Johnson v. Sovett, 31
Ga. 187.
A mere borrower may maintain an action only for inter-
ference with his possession. An action for damages for
the destruction of "the property in such a case should be
brought by the owner. L,ockhart v. Western, etc., Rail-
road, 73 Ga. 472.
Bailee Having Part Time Possession. — A bailee of a
mule from day to day has a special interest in the bail-
ment and may maintain action against the third person for
the animal's death. He may recover the full value of the
animal for the use of the owner, and also, any damages
to his rights of possession incurred by the injury resulting
from the tortious act. Marietta, etc., Coal Co. v. Western
& Atl. R. Co., 24 Ga. App. 725, 102 S. E. 182. This is true
although under the bailment contract the animal was re-
turned every night to the owner. Ed. Note.
Common Law Rule. — The rule of common law seems to
be the same as that provided by this section, but the basis
of allowing the bailee to recover, was not because of in-
terest but possession. See Small v. Wilson, 20 Ga. App.
674, 680, 93 S. E. 518.
§ 3483. (§ 2910.) Effect of loss or destruction.
The loss or destruction of the thing hired, without
fault on the part of the hirer, puts an end to the
bailment, and the hirer should pay only for the
time it was enjoyed.
Cross References.— See 2 Cum. Dig. 530; 2 Enc. Dig. 210.
As to repossession by bailor, see § 3478. As to rights be
tween parties on loss of thing bailed for services or labor,
see § 3492. As to rights between parties on destruction oi
animals in livery stable, see § 3506, note.
§ 3484. (§ 2911.) Removal out of the State, etc.
— No hirer of things has a right to remove such
things beyond the jurisdiction of this State, ex-
cept by consent of the bailor, nor to put the thing
hired to any hazardous use, unless specially con-
tracted for.
See 2 Enc. Dig. 208.
§ 3485. (§ 2912.) Reletting. — No hirer of a
thing has a right to relet or hire the thing bailed to
another, except with the consent, express or im-
plied, of the bailor. In such case, the bailor may
either take immediate possession of the thing
bailed, or he may waive this right and hold the
hirer bound to extraordinary care and diligence on
the part of himself and the hirer from him.
As to relation of landlord and tenant in general, see §
3691.
"The contract between Mrs. McCombs and Brown speaks
of leasing real estate and hiring personal property.
Whether the contract insofar as it relates to the tanks
was one of 'leasing' or 'hiring,' Brown did not acquire the
right to sublet without the assent of Mrs. McCombs. Civil
Code, §§ 3691, 3485 (this section). As the plaintiffs' basis
of claim was under Brown, whether as tenant or bailee, it
was incumbent upon them to show assent of Mrs. McCombs
to their contract with Brown. This was a question of fact
upon which, under the pleadings and evidence, the judge
was authorized to find adversely to the plaintiffs." Butts
Bros. v. Ennis, 148 Ga. 153, 155, % S. E 131.
§ 3486. (§ 2913.) Levy on thing hired. — A
thing hired is not subject to sale under judgment
obtained subsequent to the contract of hire against
the owner, but may be levied on, and a bond for
its forthcoming at the expiration of the time for
which it is hired may be demanded of the person
hiring: Provided, the time of hiring does not ex-
ceed one year.
Cross References. — As to measure of damages on forth-
coming bond, see § 6043. As pointing out part of prop-
erty to be desired taken for fi. fa. lien, see § 6028. As to
form of levy, see § 6026.
Meaning of "Levied."— The word "levied," in this sec-
tion, is to be given its technical meaning, — that is, an ac-
tual seizure of the property by a levying officer under a
process, — and therefore the latter part of the section in re-
lation to a forthcoming bond would have no application in
a case where the property is seized under a garnishment,
which is for some purposes treated as in effect a levy upon
the property; but it is not a technical levy within the
meaning of the statute. Southern Flour, etc., Co. v.
Northern Pac. R. Co., 127 Ga. 626, 629, 56 S. E. 742.
Priorities. — The right of a domestic railway company
to use a freight car owned by a foreign railway company,
for which use the domestic railway pays a stated sum, is
superior by virtue of this section to the right of an attach-
ing creditor, who, without any other lien seeks to subject
the car to attachment by service of the summons of gar
nishment upon the domestic company. Sou. Flour, etc., Co.
v. Northern Pac. Ry. Co., 127 Ga. 626, 56 S. E. 742. See
also, following this case, Sou. Ry. Co. v. Brown, 131 Ga.
245, 247, 62 S. E. 177.
§ 3487. (§ 2914.) Hire of labor, etc. — The
hire of labor or services is the essence of every
bailment in which goods are delivered to another,
and compensation paid for care, attention, or la-
bor bestowed upon them. It includes the contracts
of forwarding and commission merchants, factors,
wharfingers, mechanics, and all agents in such
transactions.
§ 3488. (§ 2915.) Rule of duty. — In all such
cases, the bailee is not only bound to exercise skill
in the labor and work bestowed, but it is a part of
the contract that he shall exercise ordinary care
and diligence in keeping and protecting the articles
intrusted to him.
Sufficiency of Petition.— See Miller v. Fletcher Co., 142
Ga. 668, 83 S. E. 521.
Applied in Chatham Abattior, etc., Co. v. Painter En-
gineering Co., 28 Ga. App. 788, 113 S. E. 94.
§ 3489. (§ 2916.) Title to thing on which labor
is bestowed. — In such cases, if the identical
article, though materially changed by the labor
bestowed, is to be returned, the title remains in the
bailor. If the bailee furnishes a portion of the
materials, the title to the entire structure is in the
party furnishing the large portion of the materials.
If the bailor furnishes material — such as silver for
plate — but the contract does not contemplate the
use of that material specially, then the title is in
the bailee to the article made, until it is delivered-
§ 3490. (§ 2917.) Labor on shares. — If ma-
terials are furnished to be manufactured on shares,
the title remains in the bailor until the delivery to
him of his portion of the manufactured goods.
§ 3491. (§ 2918.) Possession. — The bailee, for
hire of labor and service, is entitled to the posses-
sion of the thing bailed, pending the bailment. He
has, also, a special lien upon the same for his labor
and services, until he parts with possession; and if
[ 953 ]
§ 3492
DEPOSITS
§ 3502
he delivers up a part, the lien attaches to the re-
mainder in his possession for the entire claim un-
der the same contract.
Agistor. — It would seem that under this section an agistor
would be entitled to a lien as a bailee for services rendered
in pasturing cattle. Wilensky v. Martin, 4 Ga. App. 187,
60 S. F. 1074; Fulton v. Graham, 11 Ga. App. 659, 660,
75 S. F. 990.
§ 3492. (§ 2919.) Loss or destruction. — If the
thing bailed for labor and services be destroyed,
without fault on the part of the bailee, the loss
falls upon the bailor, and the bailee may demand
compensation for the labor expended and materials
used upon it.
Cross References. — As to loss or destruction of thing
hired, see § 3483, and note. As to dut)r of bailee to re-
deliver thing bailed, see § 3478. As to loss of bailed animal
in destruction of livery stable, see § 3506, note.
After loss of the thing labored on the employee must
look to the employer for compensation. See Atlantic Coast
Line R. Co. v. Baker, 118 Ga. 809, 45 S. F- 673.
Depreciation of Securities. — The bailee is not liable for
depreciation of securities after tender to the bailor. See
Ansley & Co. v. Anderson & Co., 35 Ga. 8.
§ 3493. (§ 2920.) Generally an entire contract.
— As a general rule, the contract of bailment is an
entire contract, and a full performance is a con-
dition precedent to an action upon it.
Where a bailee made repairs alleged to be unsatisfactory
by bailor and offered within reasonable time to remedy
the defects, time not being of the essence of the contract,
upon the bailor's refusal to allow the corrections to be
made he was entitled under this section to sue upon the
contract as entire for the full contract price. Byck v.
Weiler Co., 3 Ga. App. 387, 59 S. F. 1126. See also Stimp-
son Scale Co. v. Taylor, 4 Ga. App. 567, 570, 61 S. F- 1131.
ARTICLE 3.
Of Deposits.
See generally, 4 Cum. Dig. 826; 4 Fnc. Dig. 426.
§ 3494. (§ 2921.) Definition. — When chattels
are delivered by one person to another to keep for
the use of the bailor, it is called a deposit; the re-
positary may undertake to keep it without re-
ward, or gratuitously; it is then a naked deposit.
If he receives or expects a reward or hire, he is
then a depositary for hire; — very variant conse-
quences follow the difference in the contract.
As to depositories for hire, see § 3501.
Distinction between Gratuitous Deposit and Deposit for
Hire. — To render the bailment one for hire, there must be
an agreement express or implied, whereby the bailee re-
ceives a benefit. Casual or incidental benefits which are
subject to the will of the bailor are not sufficient. The
fact that the special depositor is also a general depositor
is hardly sufficient, unless the retention of the general ac-
count was stipulated for. So incidental earning of fees
for exchange or collection would not be a consideration.
Merchants Nat. Bk. v. Guilmartin, 88 Ga. 797, 804, 15 S.
F- 831. See also § 3496.
Illustrations — Accomodation Deposit. — A special deposit
is gratuitous if it be accepted for the accommodation of
the depositor, and without any undertaking by him, ex-
press or implied, to pay or do anything as compensation or
reward for keeping the deposit. Merchants Nat'l Bank
v. Guilmartin, 88 Ga. 797, 15 S. F- 831.
Same — Deposit with Innkeeper. — If one left a valise in
the office of hotel, without calling attention thereto, and
the clerk, without knowing who the owner was, took it
into a room where baggage was kept, the landlord would
be a naked depositary, and would be liable only for gross
neglect, not for ordinary neglect. Stewart v. Head, 70 Ga.
449. See also illustration in note to next succeeding sec-
tion.
Same — Deposit with Carrier as Warehouseman. — As to
baggage in its possession a carrier may be an insurer or a
depositary for hire or a naked depositary within the terms
of this and the following sections. Georgia R., etc., Co. v.
Thompson, 86 Ga. 327, 328, 12 S. F. 640; Southern R. Co.
v. Rosenheim & Son, 1 Ga. App. 766, 58 S. F- 81.
§ 3495. (§ 2922.) Voluntary or involuntary. —
A person may voluntarily undertake to be a de-
positary, or he may become so involuntarily, as by
finding; if a naked depositary, he is responsible
only for gross negligence.
For other cases applying this section, see notes to §§
3494, 3496, 3501.
Applied in Salant v. Dannenberg Co., 10 Ga. App. 263,
265, 73 S. F. 426; Self v. Dunn, 42 Ga. 528.
§ 3496. (§ 2923.) Bank deposits. — Deposits of
money in a bank do not constitute a case of naked
deposit, the use of the money being a valuable con-
sideration. A special deposit of a sealed package
of money would be a naked deposit.
See note to § 3494. See also, in general, 2 Cum. Dig.
629; 2 Enc. Dig. 277.
Special Deposit of Package of Stocks and Bonds. — "A
national bank that habitually receives special deposits for
safe -keeping, as matter of accomodation, is bound by the
act of its cashier in receiving, on special deposit, a pack-
age of stocks and bonds. The bank though acting with-
out reward, becomes a bailee, and is responsible for gross
negligence. 62 Penn. State, 47; Chattahoochee Nat'l Bk. v.
Schley, 58 Ga. 361, 374. See also, following this case,
Merchants Nat'l. Bank v. Guilmartin, 88 Ga. 797, 802, 15
S. F. 831.
§ 3497. (§ 2924.) Carrying deposits. — If one,
in addition to safekeeping, undertakes gratuitously
to carry money or other articles to another place,
his liability is the same as that of a naked de-
positary.
Cited in Gleaton v. Aultman, 150 Ga. 768, 769, 105 S. F-
445.
§ 3498. (§ 2925.) Redelivery. — A naked deposi-
tary may at any time terminate the bailments by
a redelivery of the articles to the bailor.
§ 3499. (§ 2926.) Using deposits, — A naked
depositary may not use the deposits without in-
creasing his responsibility, unless such use in [is]
necessary for its preservation, or, from the cir-
cumstances, the consent of the depositor may be
reasonably presumed.
§ 3500. (§ 2927.) Reimbursements. — A naked
depositary is entitled to be reimbursed all charges
and expenses incurred by reason of the deposit,
and may retain possession until the same are paid.
As to liens of depositories, see § 3363.
§ 3501. (§ 2928.) Deposits for hire. — Deposi-
taries for hire are bound to exercise ordinary care
and diligence, and are liable as in other cases of
bailment for hire; they have a lien also for their
hire, and may retain possession until it is paid.
Cross References. — As to liens, of depositaries, see § 3363.
As to foreclosure, see § 3366, and notes thereto. As to sale
for overdue storage, see § 2917. For cases distinguishing
deposits for hire and naked deposits, see note to § 3494:
and for cases or rights and liabilities of warehousemen,
see § 3503 and note thereto.
Applied in Penn. Steel Co. v. Georgia R. Co., 94 Ga. 636,
21 S. F. 577; Dixon v. Central, etc., R. Co., 110 Ga. 173, 186,
35 S. F. 369; Seaboard Air-Fine Ry. v. Shackelford, 5 Ga.
App. 395, 396, 63 S. E. 252; Jeems v. Lewis, 13 Ga. App.
456, 79 S. F. 235; Vandalsem v. Caldwell, 33 Ga. App. 88,
125 S. F- 716.
§ 3502. (§ 2929.) Factor's lien. — A factor's
lien extends to all balances on general account,
and attaches to the proceeds of the sale of goods
consigned, as well as to the goods themselves.
Peculiar confidence being reposed in the factor, he
[954]
§ 3503
DEPOSITS
§ 3508
may, in the absence of instructions, exercise his
discretion according to the general usages of the
trade; in return, greater and more skillful diligence
is required of him, and the most active good faith.
Cross References.— See 6 Cum. Dig. 115; 6 Enc Dig. 146.
As to rank of factor's lien, see § 3362. As to lien of ac-
ceptor of bill of exchange, see § 1278. As to right of bailee
to compensation for labor on property lost, see § 3492. As
to factor's right of action when contracting on his own
credit, see § 3609. As to penalty on factor for charging
city sales tax as part of his expenses, see § 1852.
Section Codifies Common Law Lien of Factor. — The
factor had a lien at common law for advances and ex-
penses, and this section is a simple recognition of the com-
mon-law lien of the factor. His lien is a strict common-
law lien, that is, one asserted by retention of the property
upon which the lien is claimed, and lost by a surrender of
the property. It can only be enforced by a sale in ac-
cordance with the usages of trade, there being no statutory
provision authorizing the foreclosure of such a lien, as is
true of other liens. Willingham v. Rushing, 105 Ga. 72, 75,
31 S. E- 130. See also, Kollock v. Jackson, 5 Ga. 153 ;
Brown, etc., Co. v. Clayton, 12 Ga. 564.
Custom Must Give Way to Express Statutory Provision.
— The defendants in error contend that, by the custom
of merchants which obtains in Savannah, as they
had advanced plaintiffs in error on the cotton, they
were not bound to obey the instructions of the plaintiffs in
error, but might hold this cotton and sell in their discre-
tion. "Peculiar confidence being reposed in a factor, he
may, in the absence of instructions, exercise his discretion,
according to the general usages of the trade." (This sec-
tion). "The primary obligation of an agent or factor,
whose authority is limited by instruction, is to adhere
faithfully to those J instructions, for if he unnecessarily ex
ceed his commission, or risk his principal's effects without
authority, he renders himself responsible for the conse-
quences of his act; and if loss ensue, if furnishes no de-
fence to him that he intended to benefit his principle."
Hardeman v. Ford, 12 Ga. 205. We take it that these
principles thus enunciated are the law of this state, and
whatever particular customs there may be prevailing in the
city of Savannah, they must give way to the law. Hatcher
v. Comer & Co., 73 Ga. 418, 421.
Express Agreement Prevails Over this Section. — Even
though the factor's agency be coupled with an interest, by
virtue of this section, if there should be an express con-
tract whereby the goods are to be held until a sale is au-
thorized, the factor is bound by the terms of the agree-
ment as actually made, and is liable to the owner for any
damages which may be sustained by reason of an un-
authorized sale. Wood & Bro. v. Jones & Son, 10 Ga.
App. 735, 73 S. F- 1099. Headnote in Campbell v. Red-
wine Bros., 22 Ga. App. 455, 96 S. F. 347.
Applied, as to lien on general account, in Burrus v.
Keyle, 56 Ga. 24, 28; Willingham v. Rushing, 105 Ga. 72,
74, 31 S. F. 130.
§ 3503. (§ 2930.) Warehouseman. — A ware-
houseman is a depositary for hire, and is bound
only for ordinary diligence; a failure to deliver the
goods on demand makes it incumbent on him to
show the exercise of ordinary diligence.
Cross References. — See Generally, 3 Cum. Dig. 365; 2
Fnc. Dig. 848; 11 Cum. Dig. 418; 12 Fnc Dig. 715. For
provisions as to bonded public warehousemen, see §§ 2910-
2922.
In General.— Under this section and § 3501 taken together,
a warehouseman has a lien for storage charges on goods in
his possession. Penn. Steel Co. v. Georgia R., etc., Co., 94
Ga. 636, 21 S. F. 577; Dixon v. Central R. Co., 110 Ga. 173,
186, 35 S. F. 369.
And by virtue of these sections he may hold the property
until the lien has been satisfied, or where a warehouse
receipt has been given and lost, until the owner gives bond
to protect him in case another turns up with the losi
receipt. Patten v. Boggs, 43 Ga. 168, 174; Dixon v. Cen-
tral, etc., R. Co., 110 Ga. 173, 186, 35 S. E. 369; Penick v.
Almond, 17 Ga. App. 589, 87 S. E. 845.
Lien Extends only to Storage Charge. — There is no law
which gives a warehouseman a lien for anything except
the reasonable hire represented by the proper storage fees.
And after the destruction of a warehouse by fire, where
insurance companies pay the owners in full and removed
the salable goods from the premises, the warehouseman
"had no lien against the funds realized from such sale.
Savannah Steam Rice Mill Co. v. Hull, 103 Ga. 831, 833.
30 S. E. 952.
Degree of Care Required of Warehouseman. — Under this
section, taken with § 3501, a warehouseman is liable only
for loss resulting from his failure to use ordinary diligence.
Brunswick Grocery Co. v. Brunswick, etc., R. Co., 106 Ga.
270, 273, 32 S. F- 92; Knight v. Wrightsville, etc., R. Co.,
127 Ga. 204, 56 S. E. 363; Morris Storage, etc., Co. v.
Wilkes, 1 Ga. App. 751, 755, 58 S. E. 232; Atlanta Cadillac
Co. v. Manley, 29 Ga. App. 522, 116 S. E. 35.
Same — Statutory Provision Not Exclusive. — If the par-
ties make an express contract for storage of goods in a
warehouse, and a suit is brought for a breach of that con-
tract, the omission of the rule of this section in the in-
struction is not error. Shields v. Carter, 22 Ga. App. 507,
96 S. E. 330.
Same — Allegation. — Tt was intimated as obiter dictum in
Knight v. Wrightsville, etc., R. Co., 127 Ga. 204, 56 S. F-
363, that in a suit against a warehouseman for hire for
failure, upon demand, to deliver goods which had been
stored with him by the plaintiff, by virtue of this section
the latter might allege negligence in general terms.
Same — Presumptions and Burden of Proof. — Upon the
warehouseman's failure to deliver stored goods upon de-
mand, there is a presumption of negligence against him
and under this and § 3469 the burden of proof is upon him
to show the exercise of ordinary diligence. Brunswick
Grocery Co. v. Brunswick, etc., R. Co., 106 Ga. 270, 273, 32
S. E. 92; Morris Storage, etc., Co. v. Wilkes, 1 Ga. App
751, 755, 58 S. E. 232; Netzow Mfg. Co. v. Southern Ry.
Co., 7 Ga. App. 163, 164, 66 S. F. 399; Renfroe v. Fouche,
26 Ga. App. 340, 106 S. E. 303; Atlanta Cadillac Co. v.
Manley, 29 Ga. App. 522, 116 S. E. 35.
But where the warehouseman accounts for the loss of
goods without negligence on his part, the burden of proof
shifts to the plaintiff. Brunswick Grocery Co. v. Bruns-
wick, etc., R. Co., 106 Ga. 270, 273, 32 S. F. 92.
§ 3504. (§ 2931.) Wharfinger. — A wharfinger
is also a depositary for hire, and liable upon the
same principles.
§ 3505. (§ 2932.) Inn. — Under the term "inn"
the law includes all taverns, hotels, and houses of
public general entertainment for guests.
As to duty of innkeeper, see § 3512.
See Walpert v. Bohan, 126 Ga. 532, 534, 55 S. E. 181, for
definitions of innkeepers, and decision that a proprietor of
a bathhouse was not under the circumstances an innkeeper.
§ 3506. (§ 2933.) Liability of innkeeper. — An
innkeeper is a depositary for hire, but, from the
peculiar nature of his business, his liability is gov-
erned by more stringent rules.
History of Limitation of Innkeeper's Liability. — Sec
Austin v. Berlin Supply Co., 12 Ga. App. 798, 799, 78 S. E-
723.
Meaning of Stringent Rules. — By "stringent rules." as
used in this section, is meant more stringent rules than
other depositaries for hire provided for in previous sections
of the Code in the same article on deposits. Murchison v.
Sersrent. 69 Ga. 206, 209.
For other cases citing and applying this section, see notes
to sections following, particularly, those to §§ 3510 and 3511.
§ 3507. (§ 2934.) Guests. — All persons enter-
tained for hire at an inn, or tavern, or hotel, are
guests.
Guest in Conveyance from Depot. — A traveler who is
met at a depot by the porter of a hotel, who indicates a
conveyance by which the traveler may go to the hotel, be-
comes the guest of the hotel so far as to render the pro-
prietor liable for the safe-keeping of his baggage or bag-
gage check delivered to the porter. Such liability com-
mences from the time of delivery to the porter. Coskey v.
Nagle, 83 Ga. 696, 10 S. F. 491."
§ 3508. (§ 2935.) Liability of innkeeper for
stolen goods. — An innkeeper is bound to extra-
ordinary diligence in preserving the property of his
guests, intrusted to his care, and is liable for the
same, if stolen, where the guest has complied with
all reasonable rules of the inn.
Cross References. — See, generally, 7 Cum. Dig. 388; 7 Enc.
Dig. 519. As to limitations of liability, see §§ 3510, 3511.
At common law an inn-keeper was an insurer of the
955 ]
§ 3509
DEPOSITS
§ 3511
goods of a guest, and could' only limit his liability by ex-
press contract or notice. Murchison v. Sergent, 69 Ga. 206,
210.
Difference as to Rule of Thefts and Other Losses.— The
proper construction of this section is as follows: Where
it is shown that the property of a guest was stolen while
in the custody of an innkeeper, and the guest has complied
with all reasonable rules of the inn, the liability of the
innkeeper is that of an insurer. In all other cases of loss
the innkeeper may excuse himself by showing that the loss
was due to negligence or fault of the guest himself, or oc-
curred after the exercise by the innkeeper of extraordinary
diligence. By § 3511 it is provided that in case of loss the
presumption is want of "proper diligence" in the landlord.
Necessarily, as to goods not stolen, "proper diligence"
means extraordinary diligence, as provided in this section.
Unless the sections of the code are given this construction,
the words "extraordinary diligence," as used in this sec-
tion, would be meaningless; because there is a vast dif-
ference between liability as an insurer and liability for the
failure to exercise extraordinary care. Austin v. Berlin
Supply Co., 12 Ga. App. 798, 801, 78 S. E. 723.
Posting Reasonable Rules. — Construed with § 3510, this
section requires that the reasonable rules be posted.
Murchison v. Sergent, 69 Ga. 206.
When Liability Attaches. — Where a hotel-keeper sends
his porter to the cars, to receive the baggage of persons
traveling, and baggage is delivered to the porter, and the
traveler becomes the guest of the hotel, the liability of
the innkeeper as such for the baggage begins on the de-
livery to the porter, and continues until redelivery to the
actual custody of the guest. Sasseen v. Clark, 37 Ga.
343; Coskery v. Nagle, 83 Ga. 696, 698, 10 S. E. 491. See
also Rockwell v. Proctor, 39 Ga. 105, 107; Carbart v.
Wainman, 114 Ga. 632, 40 S. E- 781; Brewer v. Caswell,
132 Ga. 563, 567, 64 S. E. 674.
When Liability Terminates. — And if the porter of the
inn-keeper take charge of the baggage at the hotel to de-
liver it at the cars for the guest, the liability of the inn-
keeper continues until the baggage be delivered. It de-
volves on the inn-keeper to show such facts as will dis-
charge him from liability on account of such baggage.
Sasseen v. Clark, 37 Ga. 242.
§ 3509. (§ 2936.) Proof. — It is not necessary
to show actual delivery to the innkeeper. Deposit-
ing goods in a public room set apart for such
articles, or leaving them in the room of the guest,
or placing a horse in the stable, is a delivery to the
innkeeper; if, however, the guest delivers his
goods to a servant under special charge to him to
keep the same, the innkeeper is not liable therefor.
For cases applying this section, see notes to §§ 3508 and
3511.
Not Applicable to Intruders and Strangers. — The express-
ions, "depositing goods in a public room set apart for such
articles," and "placing a horse in the stable," as used in
this section are to be understood as relating to such acts
of a guest as distinguished from such acts by a mere in-
truder or stranger having no relation of guest to the inn
keeper, and at no time establishing such a relation.
Brewer v. Caswell, 132 Ga. 563, 565, 64 S. E. 674.
§ 3510. (§ 2937.) Deposit of valuables; guests'
receipts. — The innkeeper may provide an iron
safe, or other place of deposit for valuable articles,
and, by posting a notice thereof, may require his
guests to place such valuable articles therein, or
he will be relieved from responsibility for them.
For all valuable articles placed by guests with
innkeepers for safe keeping the innkeeper shall
give and the guests shall receive a receipt therefor
to evidence the fact of such deposit. No guests
shall recover of the innkeeper more than one hun-
dred ($100.00) dollars for loss of valuable articles
deposited with the innkeeper for safe keeping un-
less such guest has in his possession the receipt
of the innkeeper for the valuable articles claimed
to have been lost. Acts 1922, pp. 52, 54.
Editor's Note. — That part of this section from the words,
"For all valuable articles," to the end, was added by the
act of August 19, 1922 (Acts 1922, p. 52). No cases as yet
have construed this added provision.
Section Not Exhaustive. — "This section is, of course,
not intended to be exhaustive as to the reasonable rules
which may be adopted by an inn-keeper." Austin v. Berlin
Supply Co., 12 Ga. App. 798, 78 S. E. 723.
What Constitutes Notice — Printing on Register. — Sections
3508 and 3511 must be construed in pari materia with this
section. Notice on the hotel register of the place of de-
posit is not a "posting" as required by this section and is
not sufficient. Murchison v. Sergent, 69 Ga. 206, 210.
Same — Information by Inn-keeper's Wife. — It was not ad-
missable to ask the plaintiff on cross examination, if the
wife of the inn-keeper did not warn her to leave her
jewelry in the safe of the hotel provided for the purpose,
where the issue was whether the rule nad been made in
accordance with this section. McBride v. Goodhue, 134 Ga.
608, 68 S. E- 321.
Effect of Negligence after Notice. — After notice is given
by posting according to the requirements of this section,
an inn-keeper is not liable for articles stolen from the
guest's room because of negligence in failing to provide a
suitable lock on the door of the guest's room, or in placing
a fire escape in such manner to afford easy access to the
room. Jones v. Savannah Hotel Co., 141 Ga. 530, 81 S. E-
874, S. C, 14 Ga. App. 618, 82 S. E- 155. Followed in Grif-
fis v. Buckofzer, 25 Ga. App. 531, 103 S. E. 800.
Personal Effects of Reasonable Value Excepted. — Even
if notice had been published to a guest according to law of
this section to deposit valuables in another place it would
not apply to traveling money and a watch of reasonable
amount and value. Murchison v. Sergent, 69 Ga. 206,
213.
§ 3511. (§ 2938.) Presumption of law. — In
case of loss the presumption is want of proper dili-
gence in the landlord. Negligence or default by
the guest himself, of which the loss is a conse-
quence, is a sufficient defense. The liability of the
innkeeper for loss of or injury to personal prop-
erty placed by any guest under his care, other than
valuable articles which must be delivered to the
innkeeper by any guest to be deposited in an iron
safe or other place of deposit, shall not exceed the
sum of one hundred dollars; provided, however,
any guest may at any time before a loss, damage
or destruction of his property notify the innkeeper
in writing that his property exceeds in value the
sum of one hundred dollars, and shall upon de-
mand of the innkeeper furnish him a list or sched-
ule of the same, with the value thereof, in which
case the innkeeper shall be liable for the loss, dam-
age or destruction of said property because of
negligence on his part for the full value of the
same; provided, further, however, the innkeeper
posts a copy of this section printed in distinct
type on the inside of the door of the guests' room.
He may adopt reasonable regulations for his own
protection, and the publication of such to his
guests binds them to comply therewith. Acts
1922, pp. 52, 54.
Cross References.— See generally, 7 Cum. Dig. 388; 7 Ene.
Dig. 521. As to general rule on burden of proof in bailment
cases, see § 3469. As to similar provisions in reference to
common carriers, see §§ 2712, 2726. For other cases ap-
plying this section, see notes to §§ 3508 and 3510.
Ed-tor's Note— The act of August 19, 1922 (Acts 1922,
p. 52), substituted for the provision in this section, that
"the inn -keeper can not limit his liability by a public
notice," the provision contained in the third sentence of
this section, as it now reads. As yet there have been no
reported decisions construing this change.
Scope of Section.— This section must refer to reasonable
regulations other than those connected with the safe and
their publication; because § 3510 has provided how the no-
tice to the guest of the iron safe, or other place of de-
posit, shall be given. Murchison v. Sergent, 69 Ga. 206,
210.
Posting Regulations.— This section must be construed
with § 3510, when so construed it is necessary to post the
regulations for his protection. Murchison v. Sergent, 69
Ga. 206.
Liability in Absence of Regulation and Notice.— Where
[ 956 ]
§ 3512
DEPOSITS
§ 3515
an inn-keeper fails to adopt "reasonable regulations for his
own protection" and to provide for the due "publication
of such to his guests," a guest who sustains a loss may
recover therefor, unless guilty of "negligence or default
* * * of which the loss is a consequence." Watson v.
Loughran, 112 Ga. 837, 38 S. 3. 82.
Diligence Required After Discovery of Guest's Negli-
gence.— Where the guest is guilty of negligence, the inn-
keeper will nevertheless be liable if after the discovery of
such negliprence he does not exercise extraordinary dili-
gence himself and through his servants to prevent loss.
Watson v. Loughran, 112 Ga. 837, 38 S. 3. 82.
Negligence Question for Jury. — Whether given acts or
omissions of a guest by whom a loss is sustained do or do
not amount to such negligence on his part as will con-
stitute a "sufficient defense" to an action against the
landlord for the value of lost property is generally a ques-
tion for the jury. Watson v. Loughran, 112 Ga. 837, 38
S. % 82.
§ 3512. (§ 2939.) Duty of innkeeper. — The
innkeeper who advertises himself as such is bound
to receive, as far as he can accommodate, all per-
sons offering themselves as guests, of good char-
acter, and who are willing . to comply with his
rules. Persons entertaining only a few individuals,
or simply for the accommodation of travelers, are
not innkeepers, but simply depositaries for hire,
bound to ordinary diligence.
As to what are inns, see § 3505. As to similar duties of
common carrier, see § 2729. As to sanitary regulations
and fire escapes, see § 1770 (80) et seq.
§ 3513. (§ 2940.) Superseded by the act of 1923,
p. 101, herein codified as §§ 3513(1) and 3513(2).
§ 3513(1). Lien on property of guests or agent.
— The keeper of every hotel, inn, boarding house,
lodging house and eating house in the State of
Georgia shall have a lien on all furniture, baggage,
wearing apparel and other property brought into
such hotel, inn, boarding house, lodging house or
eating house by any guest or patron of the same
who has title to such property or by an agent who
has legally acquired possession of such property
for the purpose of dealing therewith for the bene-
fit of the owner and in and about the business of
the owner, to secure the payment by such guest or
patron of all sums due for food, lodging or other
accommodation. Such lien shall attach in all
cases where a liability has been created without
regard to the time of furnishing such food, lodg-
ing or other accommodation, and such lien shall be
superior to other liens, except liens for taxes, liens
for purchase money or retention of title of record,
special liens of landlords for rent, liens of laborers,
and all general liens of which the keeper of such
hotel, inn, boarding house, lodging house, or eat-
ing house had actual notice or constructive notice
before the property claimed to be subject was
brought into such hotel, inn, boarding house, lodg-
ing house or eating house, to which excepted liens
it shall be inferior. Acts 1923, p. 101.
Cross References. — As to liveryman's lien, see § 3515, and
notes thereto. For similar provisions, see § 3360. As to
how liens are satisfied, see § 3368. As to sanitary regula-
tions and fire escapes for hotels, see § 1770 (80) et seq.
Editor's Note. — While this act does not expressly repeal
section 3513 of the Code of 1910, it does supersede it. That
section provided that an inn-keeper had a lien "on the
goods of his guests for all his reasonable charges, and may
retain possession until they are paid; his lien attaches al-
though the guest has no title, or even stole the property,
and the true owner must pay the charges upon the specific
article before receiving the same."
, § 3513(2). Enforcement of lien and possession
of property. — For the enforcement of such lien
[9
created by Section 3513(1) the keeper of such
hotel, inn, boarding house, lodging house or eating
house claiming the lien may retain possession of
the property against which the lien is claimed, and
at any time after thirty (30) days after the person
creating such debt or obligation has left such hotel,
inn, boarding house, lodging house or eating
house, and the debt or obligation being still due
and unpaid, may sell at public auction at the office
of the hotel, inn, boarding house, lodging house or
eating house where such lien is claimed, to the
highest bidder for cash, any and all property left
at such hotel, inn, boarding house, lodging house or
eating house subject to such lien, without any pro-
cess at law or equity, and the proceeds of such
sale shall be applied, first to the payment of the
expense of such sale, second to the reduction or
discharge of the debt or obligation due to such
hotel, inn, boarding house, lodging house or eating
house, and any surplus remaining shall be held
subject to the demand of the person creating such
debt or obligation; Provided, that such sale shall
be advertised by written or printed posters at the
office of such hotel, inn, boarding house, lodging
house or eating house and at the courthouse door
of the county in which such hotel, inn, boarding
house, lodging house or eating house is located for
at least ten (10) days before such sale, and such
advertisement shall specify the time and place of
sale and give said owner or agent or both written
notice thereon [thereof] by registered mail ad-
dressed to him at his last known address at least
ten (10) days prior to said sale, notifying him of
the time and place of sale and of the amount
claimed against him or them; and, provided,
further, that this remedy shall be cumulated to
the remedies now existing by law for the enforce-
ment of liens to satisfy obligations due for board
and lodging. Any surplus proceeds of said sale,
after payment of the amount reclaimed against
such owner or agent, and the cost of sale shall if
not claimed for by said owner or agent within
twelve months after said sale shall be turned over
to the board of education in which county said
sale occurred for educational purposes. Acts
1923, pp. 101, 102.
§ 3514. (§ 2941.) Innkeepers shall give checks
for baggage. — It shall be the duty of the keepers
of inns, hotels, and other houses of public enter-
tainment for travelers in this State to give receipts
or checks for all baggage of their guests, 'delivered
in such inn, hotel, or house of entertainment, when
requested so to do by such guest; and such keeper
shall not make any additional charge for receipting
for, checking, or keeping such baggage, so long as
the owner remains a guest of the house; and if the
keeper of any inn, hotel, or any other public house
of entertainment, as aforesaid, shall violate any
provision of this section, he shall be guilty of
a misdemeanor. Acts 1865-6 p. 233.
As to duty of carriers to give checks, etc., see § 2732.
As to criminal responsibility of inn-keeper in this respect,
see P. C. 634. As to sanitary regulations and fire escapes,
see $ 1770 (80) et seq.
§ 3515. (§ 2943.) Keeper of livery-stable.— The
keeper of a livery-stable is a depositary for hire,
and is bound to the same diligence and entitled to
the same lien as an innkeeper.
Cross References. — See generally, 2 Cum. Dig. 537; 8
57]
§ 3516
LOANS
§ 3525
Cum. Dig. 245; 8 Enc. Dig. 801. As to liveryman's lien
generally, see § 3360 and notes thereto. As to rules relat-
ing to both liverymen and innkeepers, see § 3513.
Amount of Diligence. — Under this section construed in
the light of § 3508 "the keeper ot the liverystable, there-
fore, is bound to extraordinary diligence in protecting the
property which is committed to his care." Wood v. Clary,
143 Ga. 495, 497, 85 S. E. 694. See also Burns v. Reese, 7
Ga. App. 387, 66 S. E. 982.
Liveryman's Lien. — "A livery stable keeper has, under
this section and § 3513, a lien upon the horses of his cus-
tomers in his possession, not only for the board of the
horses, but for the other accounts against the customers,
in the line of the livery stable business." Gammell & Co.
v. Schley, 41 Ga. 112.
Same — Extent of Lien. — "By § 3515, the keeper of a
livery stable is entitled to the same lien as an innkeeper,
and in the case referred to (Colquit v. Kirkman, 47 Ga.
556), it was held, that whilst as against the actual bailor,
a livery stable keeper has a lien upon an article of prop-
erty deposited with him for feed or storage for his whole
account against the depositor in the line of the livery
stable business, yet, if the depositor be not the true owner
of the particular article in question, or if there be a prior
legal incumbrance upon it, the lien of the stable keeper is
only good against the true owner or prior incumbrancer
for the expense of feeding or taking care of that particular
article. This shows the true limit, both on the lien of the
livery man and the innkeeper." Domestic Sewing Machine
Co. v. Watters, 50 Ga. 574, 575.
Duty of Liveryman as Bailor and Hirer as Bailee.— See
§ 3479 and the notes thereto.
ARTICLE 4.
Of Loans.
See general discussion, 9 Enc. Dig. 104.
§ 3516. (§ 2944.) Division of loans. — Loans
are of two kinds — for consumption or for use. A
loan for consumption is where the article is not to
be returned in specie, but in kind; this is a sale, and
not a bailment.
As to the essentials of a sale, see § 4106.
Definition. — A loan is "the bailment of an article for a
certain time, to be used by the borrower without paying
for the use." Booth v. Terrell, 16 Ga. 20, 25.
Construed Liberally. — While the loan of a specified
quantity of whisky obtained by the borrower for his own
consumption, on a promise to return to the lender a simi-
lar quantity of the same kind of liquor, may be classed
as a sale under the provisions of this section of the Civil
Code, yet it is not such a sale as falls within the operation
of the statute which prohibits the sale of spirituous liquors
without a license. Skinner v. State, 97 Ga. 690, 25 S. "E.
364; Huby v. State, 111 Ga. 842, 36 S. E. 301.
The trial judge was probably governed in the view he
entertained of this case by the language of this section.
This section was specially designed for the protection of
lenders as to the enforcement of their rights, and there-
fore very properly and wisely provided that transactions of
this kind% should take the legal character of sales, when
any question arose as to the borrower's liability to ac-
count for the goods. But this section has reference ex-
clusively to civil remedies, and affords no basis for arriv-
ing at the meaning of a criminal statute, which, under all
the rules, must be strictly construed. Skinner v. State,
97 Ga. 690, 691, 25 S. E. 364.
Charging Section — Meaning Intelligible. — In reading to
the jury, as part of the charge, this and the next section
defining the kinds of loans, it was not error, in the ab-
sence of a proper request on the subject, to fail to explain
to the jury the meanings of the terms "specie," "in kind,"
and "for consumption," as used in these sections. Foote v.
Kelley, 126 Ga. 799, 55 S. E. 1045.
§ 3517. (§ 2945.) Loan for use. — A loan for
use is the gratuitous grant of an article to another
for use, to be returned in specie, and may be either
for a certain time or indefinitely, and at the will of
the grantor.
"A loan is under our Code 'gratuitous,' and 'at the will
of the grantor.' Code, § 2126 (this section)." Cabaniss v.
Ponder, 65 Ga. 134, 137. See also note to preceding section.
§ 3518. (§ 2946.) For whose benefit. — A loan
is generally entirely for the benefit of the bor-
rower, but sometimes it is for the joint benefit of
the lender and borrower, and occasionally for the
exclusive benefit of the lender, as where one lends
a horse to another. to transact business for the
lender; in the two latter cases the responsibility
of the borrower is varied and less stringent, ac-
cording to the circumstances and purpose of the
loan.
§ 3519. (§ 2947.) Diligence. — The borrower
usually is bound to exercise extraordinary care
and diligence, and is liable for slight neglect.
As to what constitutes extraordinary diligence, see §
3472.
The borrower is bound to take good care of the thing
borrowed; to use it according to the intention of the lender;
to restore it at the proper time, and to restore it in a
proper condition. Booth v. Terrell, 16 Ga. 20.
§ 3520. (§ 2948.) Borrower no title. — The
borrower acquires no property in the thing loaned,
but only the right to possess and use it. For any
interference with that right he may maintain an
action.
As to respective rights of bailor and bailee to sue, see
§§ 3482, 4486.
Action for Destruction.— The action (for destruction of
borrowed article) should have been brought in the name
of the owner. The plaintiff was only a borrower, (Bell v.
McCawley, 29 Ga. 356), and acquired no title in the picture
loaned; her right was to possess and use it, and for any
interference with that right she might maintain an action
under this section. Lockhart v. Western & Atlantic Rail-
road, 73 Ga. 472, 473. See also Booth v. Terrell, 16 Ga. 20.
§ 3521. (§ 2949.) Not transferable. — A loan
being for the personal benefit and use of the bor-
rower, he can not transfer the possession to an-
other without the consent, express or implied, of
the lender; hence, if the loan be for a definite time,
the borrower has no such interest as is subject to
levy and sale.
Cross References. — As to levy on thing hired, see §§
3486, 6028. As to sale under execution of thing pawned, see
§ 3534. As to transfer of debt and thing pawned by pawnee,
see § 3533. As to form of levy under fi. fa., see § 6026.
§ 3522. (§ 2950.) When revocable. — The len-
der may not revoke a loan for a definite time so
long as the borrower meets fully his engagements.
A loan at will, or indefinitely, may be revoked at
any time.
A gratuitous loan may be terminated when lender pleases.
Booth v. Terrell, 16 Ga. 20.
§ 3523. (§ 2951.) Necessary charges. — A loan
being gratuitous, the borrower must meet all
necessary charges and expenses in preserving and
taking care of the property during the time of the
loan. If, however, extraordinary expenses be
necessary to protect the property from destruc-
tion, the lender must reimburse the borrower
such expenses.
§ 3524. (§ 2952.) Increase. — The increase, ex-
cept by special contract, belongs to the lender.
As to rights to increase of pawned property, see § 3537.
The borrower must return the increments or offspring
of the thing lent. Booth v. Terrell, 16 Ga. 20.
§ 3525. (§ 2953.) How used. — The loan must
be used strictly for the purpose and in the manner
contemplated by the parties in contract. A viola-
tion by the borrower is, in law, a conversion.
As to use of goods pawned, see § 3531.
Money. — This section is applicable to money loaned for
[958]
§ 3526
PLEDGES AND PAWNS
§ 3529
a specific purpose. Fischesser v. Heard, 42 Ga. 531, 534.
Conversion results from the assertion of title in a loan
accompanied by user and acts of control. Adams v. Mizell,
11 Ga. 106.
§ 3526. (§ 2954.) Death of parties. — The death
of the lender terminates all indefinite loans, or
loans at will or pleasure. It does not terminate a
loan for a definite time. The death of the bor-
rower terminates all loans to him.
Cross References. — As to revocation of agency by death,
see § 3575. As to effect of death on interests in pawned
property, see § 3532.
Restoring Property. — When the lender is dead, the loan
is to be restored to his personal representative. Booth v.
Terrell, 16 Ga. 20.
ARTICLE 5.
Pledges and Pawns.
§ 3527. (§ 2955.) Cities may license pawn-
brokers. — Municipal authorities may license
pawnbrokers, define by ordinance their powers and
privileges, impose taxes upon them, revoke their
licenses, and exercise such general superinten-
dence as will insure fair dealing between the pawn-
broker and his customer.
Cross References. — For similar provisions, see § 904, and
the notes thereto. As to revocability of such license, see
§ 15. As to exception in general law of loans on personal
property in favor of pawns, see § 3466.
§ 3528. (§ 2953.) What is a pawn. — A pledge,
or pawn, is property deposited with another as
security for the payment of a debt. Delivery of
the property is essential to this bailment, but prom-
issory notes and evidences of debt, warehouse
receipts, elevator receipts, bills of lading, or other
commercial paper symbolic of property may be
delivered in pledge. The delivery of title-deeds
creates no pledge. Acts 1887, p. 36.
See generally, 9 Cum. Dig. 497; 10 Fnc. Dig. 484. As tc
pawnee's lien, see § 3362.
Definition of Pledge. — See Citizens Banking Co. v. Pea-
cock, 103 Ga. 171, 29 S. E. 752; Fleming v. Georgia Rail-
road Bank, 120 Ga. 1023, 1027, 48 S. E. 420; Campbell v.
Redwine Brothers, 22 Ga. App. 455, 96 S. F. 347.
Delivery Necessary to Constitute Pledge. — Under this
section, the very essence of a pledge, or pawn, is deposit.
The property must be deposited, either actually or con-
structively, with the pledgee. Where there is no delivery,
either actual or constructive, there is no pledge. First
National Bank v. Nelson, 38 Ga. 391. See also National
Exchange Bank v. Graniteville Mfg. Co., 79 Ga. 22, 3 S.
F. 411; Commercial Bank v. Flowers, 116 Ga. 219, 220, 42
S. F. 474. See also, Henry Vogt Machine Co. v. Bailey,
2 Ga. App. 204, 206, 58 S. F. 314; Nisbit v. Macon Bank
& Trust Co., 12 Fed. 686, 690.
Symbolical or Constructive Delivery. — But, under this
section, it is also expressly provided that warehouse re-
ceipts and bills of lading, which are symbolical of the
property, may be delivered in pledge, and,' when so de-
livered, they become the equivalent of the property which
they represent. Citizens Banking Co. v. Peacock, 103 Ga.
171, 29 S. F. 752. The effect of the delivery of the cotton
under a contract of this character is not to divest the title
of the pledgor to the property, but to invest the pledgee
with a special property in the cotton for the purposes of
the bailment. Halliday v. Bank, 112 Ga. 461, 463, 37 S. F-
721. See also Central, etc., Co. v. Exchange Bank, 101 Ga.
353, 28 S. E. 863; Farmers, etc., Bank v. Bennett & Co.,
120 Ga. 1012, 1014, 48 S. E. 398; National Bank v. Everett,
136 Ga. 372, 374, 71 S. F. 660; Citizens, etc., Bank v. Union
Warehouse, etc.. Co., 157 Ga. 434, 448, 122 S. E. 327; Liv-
ingston v. Anderson & Son, 2 Ga. App. 274, 280, 58 S. E-
505; Bank v. Butts, 4 Ga. App. 308, 310, 61 S. E. 298; Nor-
ris v. Manget-Brannon Co., 18 Ga. App. 639, 90 S. E. 79;
Consolidated Co. v. Citizens Bank, 32 Ga. App. 113, 122 S.
E. 732; Nisbit v. Macon Bank & Trust Co., 12 Fed. 686,
690.
Same — Historical. — "Originally, warehouse receipts, ele-
[ 959 ]
vator receipts, and bills of lading were not by our statute
authorized to be pledged as collateral. By an act approved
October 3, 1887, this section of the code, which prior to that
time only authorized the pledge, in express terms, of prom-
issory notes and evidences of debt, was amended, and
warehouse receipts, elevator receipts, and bills of lading,
or other commercial paper symbolic of property, were ex-
pressly made the subject of pledge. Acts 1887, p. 36." Citi-
zens Banking Co. v. Peacock, 103 Ga. 171, 178, 29 S. E. 752.
See also Consolidated Co. v. Citizens Bank, 32 Ga. App.
113, 122 S. E. 732.
Same — Extent of Title Transferred.— While a bill of lad-
ing is not in the full sense a negotiable instrument, it is
treated by universal commercial usage as a symbol of the
goods for which it is issued; and consequently it is in a
measure negotiable. In Georgia, it may be pledged as
security for debt under this section, and a bona fide as-
signee for value is protected in his title against the owner's
right of stoppage in transitu under § 4133. Commercial
Bank v. Armsby Co., 120 Ga. 74, 76, 47 S. E. 589. But it
does not give the transferee a right of action for the pur-
chase price of the goods which it represents. Allen, etc.,
Co. v. Farmers, etc., Bank, 129 Ga. 748, 754, 59 S. E. 813.
Delivery of Title Deed Creates No Pledge. — A pledge can
not be created by delivery of title deeds, under the terms
of this section, and such creates no lien enforceable at
law. See Davis v. Davis, 88 Ga. 191, 14 S. E- 194; Eng-
lish v. McElroy, 62 Ga. 403; Pierce v. Parrish, 111 Ga.
725, 729, 37 S. E. 79; Fleming v. Georgia Railroad Bank.
120 Ga. 1023, 1027, 48 S. E. 420; Bowen v. Keller, 130 Ga.
31, 34, 60 S. E. 174.
Section 4126 Not Repealed. — This section does not repeal
§ 4126, relating to title to farm products sold by factors,
etc. See, for full discussion, Nat. Bank v. Augusta Cot-
ton, etc., Co., 104 Ga. 403, 410, 30 S. F. 888.
§ 3529. (§ 2957.) Pledge of notes. — The re-
ceiver in pledge or pawn of promissory notes is
such a bona fide holder as will protect him, under
the same circumstances as a purchaser, from the
equities between the parties, but not from the true
owner, if fraudulently transferred, though without
notice to him.
Cross References. — For full treatment of this subject, in-
cluding illustrative cases, see 9 Cum. Dig. 497; 10 Enc.
Dig. 484. As to rights of bona fide holder of negotiable
instrument, see § 4286. As to rights of holder of note as
collateral security, see § 4289 and note thereto. As to
exemption of collateral security from garnishment, see §
5296.
In General. — The preceding section declares that prom-
issory notes and other evidences of indebtedness may be
delivered in pledge; and this section declares the receiver
in pledge of promissory notes is such a bona fide holder as
will protect him under the same circumstances as a pur-
chaser, from equities between the parties.- Section 4289 de-
clares that the holder of a note as collateral security for
a debt stands upon the same footing as a purchaser. He
is thus placed upon the same plane as a purchaser. The
right of a purchaser for value is to be protected against
equities only when by indorsement the paper is rendered
negotiable, and he is invested with the legal title. So
with a pledgee. So with the person who holds the paper as
collateral security ; — they all stand upon the same footing.
In each case indorsement is the condition of negotiable
absolution. Benson v. Abbott, 95 Ga. 69, 76, 22 S. E. 127.
See also Bank v. Butts, 4 Ga. App. 308, 310, 61 S. E. 298;
Chandler v. Merchants, etc., Bank, 30 Ga. App. 694, 118 ?.
E. 785; Consolidated Co. v. Citizens Bank, 32 Ga. App. 113,
122 S. E. 732.
The above paragraph discusses the law prior to the N.
I. E., as passed in 1924. For a discussion of the effect of
that law upon this section, see the note under § 4294(27).
Section Strictly Construed. — This section must be con-
strued to harmonize with §§ 4106, 4281, and 1290, and with
universal commercial law; and will be restricted to its
very letter, if necessary so to restrict its meaning, in order
not to unsettle long established law and usage, especially
as the section is awkwardly expressed, ambiguous and un-
certain. Bealle v. Southern Bank, 57 Ga. 274.
By commercial law, such paper collaterally pledged does
pass title; by this section, 2139 (3529) of our Code, prom-
issory notes are excepted, and only promissory notes.
It is better to stick to the letter, even though it be but a
thin bark, than to make so great a change until the gen-
eral assembly shall declare what is law. In Code, § 2138
(3528, the preceding section), other evidences of debt are
named as liable to pledge; in this, the very next section.
§ 3530
n.h,jDU^b awjj ^AW^ij
§ 3533
only promissory notes are named. There may be signifi-
cance in this omission. Bealle v. Southern Bank, 57 Ga.
274, 277.
§ 3530. (§ 2958.) Sale by pawnee. — The
pawnee may sell the property received in pledge
after the debt becomes due and remains unpaid:
but he must always give notice for thirty days to
the pawner of his intention to sell, and the sale
must be in public, fairly conducted, and to the
highest bidder, unless otherwise provided by con-
tract.
As to satisfaction of liens by pawnees, see § 3368. As
to trover for conversion, see notes to § 3532.
Notice of Conflicting Liens.— The law embraced in this
section is qualified by the provisions of § 3368 which limits
the right of a pawnee to sell pledged property where he
has notice of a conflicting lien. Buena Vista Bank v.
Grier, 114 Ga. 398, 401, 40 S. E- 284.
Section Not Applicable to Assignment of Pledge.— When
the pawnee transfers his debt and delivers to the transferee
the property given to secure the debt, .the transaction is
not a sale of the pledge, but simply places the transferee
in the same position which the original creditor occupied.
Consequently the provisions of this section are not ap-
plicable to such a transfer. Bank v. Davis, 113 Ga. 341,
342, 38 S. E. 836.
Pawnee May Sell Though Debt Affected by Usury.— A
pawnee may sell collateral security pledged with him for a
debt, though the .debt be affected with usury, under this
and neighboring sections. Valdosta, etc., R. Co. v. Valdosta
Bank, etc., Co., 144 Ga. 761, 766, 87 S. E. 1083.
Pawnee May Not Sell to Himself. — A livery- stable
keeper who, in order to enforce the lien given him by §
' 3360, sells the property by virtue of no authority except
that conferred by § (3368) and this section can not become
the purchaser. A sale made to himself is, in any event,
voidable; and if made without giving the full thirty days
notice required by the section last above cited, is abso-
lutely void. Witkowski v. Stubbs, 91 Ga. 440, 17 S. E.
609.
Notice of Sale. — In the absence of a special contract the
defendants, who took warehouse receipts merely as col-
lateral security for the debt, could only sell after maturity
of the debt, at public sale, to the highest bidder, after giv-
ing notice to the plaintiff of their intention to sell. Blalock
v. Adams, 31 Ga. App. 68, 70, 119 S. E. 465, citing Whighain
v. Fountain, 132 Ga. 277, 63 S. E. 1115; Park v. Swann, 20
Ga. App. 39, 92 S. E. 398; Campbell v. Redwine Bros., 22
Ga. App. 455, 96 S. E. 347.
Waiver of Notice by Special Contract. — The statutory
obligations as to public sale and notice to the pledgor may
be waived by special contract, under this section and
"where the pledgee is authorized, on or after the nonpay-
ment of the note, at maturity, to sell" corporate stock held
as collateral "at public or private sale, without advertise-
ment or giving any notice to the maker and pledgor, the
sale is not invalid when made without demand and without
notice of the time or place of sale." The request of the
pledgor to postpone the sale until further notice, with a
promise "to pay whenever the pledgee wished," is irrele-
vant. Thornton v. Martin, 116 Ga. 115 (3, 4), 42 S. E. 348;
Southern Exchange Bank v. Langston, 33 Ga. App. 477,
478, 127 S. E. 230.
In Kennedy v. Buckeye Co., 29 Ga. App. 167, 171, 114 S.
E- 79, it was held, that under the circumstances of the
case, the 30 day notice for sale did not apply as it was
"otherwise provided in the contract."
But in Hall v. Vann, 32 Ga. 281, 123 S. E. 172, it was
held that under the circumstances of the case there was no
waiver of the statutory requirements.
Same — Burden of Proving Agreement. — There is no pre-
sumption of any exceptional arrangement between the par-
ties, but, in the absence of anything to the contrary, the
pledge is presumed to have been made upon the ordinary
terms of the law. If either party asserts the existence of
a special agreement, the burden is upon him to show it.
Vann v. Kimbrel, 32 Ga. App. 275, 278, 123 S. E. 168.
Notice Question for Jury. — See McMekin v. Planters Co.
32 Ga. App. 752, 124 S. E. 736.
Measure of Damages for Conversion. — In a suit on a
note where the defendant recoups for the conversion of the
property pledged to secure the debt, the measure of dam-
ages is the value of the property at the time of the con-
version, which the judge or jury, as the case may be, may
ausrment. in their discretion, by the addition of legal in-
terest. The recovery is not for the highest value between
the date of conversion and the trial. Bennett v. Tucker,
32 Ga. App. 288, 123 S. E. 165. See also, Pork v. Swann,
20 Ga. App. 39, 92 S. E. 398.
In this case the court said: This section denounces any
disposition of a pledge other than as prescribed therein, as
a conversion when there is no contract providing otherwise,
and I think that upon the conversion the pledgor might
treat the pledge contract as rescinded and that he might,
if he chose to do so, even after being sued upon the debt,
act independently of such contract, regarding the pledgee
as an original wrongdoer.
§ 3531. (§ 2959.) Use of goods pawned. — The
pawnee may use the goods pawned, provided the
use does not impair their real value. He has a lien
on them for the money advanced, though not for
other debts due to him. He may retain possession
until his lien is satisfied, and has a right of action
against any one interfering therewith.
Cross References. — As to rights of bailee and bailor to
sue, see § 4486; and as to when right arises, see § 3525. As
to rights of borrower to sue for interference with his pos-
session, see § 3482 and note thereto.
Foreclosure— See note of Bank v. Grier, 114 Ga. 398, 40
S. E. 284, under § 3534.
§ 3532. (§ 2960.) Property in goods pawned. —
The general property in the goods remains in the
pawner, but the pawnee has a special property for
the purposes of the bailment. The death of neither
party interferes with their respective interests.
As to effect of death upon rights in property loaned, see
§ 3526.
Common Law. — This section is simply declaratory of the
common law. Ullman v. Brunswick Title Guarantee, etc.,
Co., 96 Ga. 625, 629, 24 S. E. 409.
Pledgee May Bring Trover. — A pledgee has such a
special property in the thing pledged as will enable him to
maintain an action in trover for its recovery or value
from a third person who has wrongfully obtained posses-
sion or converted it to his own use. Citizens Bkg. Co. v.
Peacock, 103 Ga. 171 (6); Eplan v. Wheat, 134 Ga. 511 (1
[a]); Farmers Bank v. Bennett, 120 Ga. 1012, 1014, 48 S. E-
496;; Norris v. Manget-Brannon Co., 18 Ga. App. 639, 90 S.
E- 79; Farmers & Merchants Bank v. Hamilton, 30 Ga. App.
194, 117 S. E. 287.
Effect of Death Upon Lien.— This section, it is true, de-
clares that "the death of neither party interferes with their
respective interests," but while this preserves to the pledgee
his interest in the pledge, it does not place him upon a
higher plane than any other lienholder as against the
claim for year's support. Ullman v. Brunswick Title
Guarantee, etc., Co., 96 Ga. 625, 629, 24 S. E. 409.
§ 3533. (§ 2961.) Transfer. — The pawnee may
transfer his debt, and with it the possession of the
thing pawned, and the purchaser stands precisely
in his situation.
As to nontransferability of loan, see § 3521.
Section Codifies Common Law — Hardship of Rule. — This
section seems to be a codification of the common law. See
Goss v. Emerson, 3 Fost. (N. H.) 38; 18 Am. & Eng. Enc.
L. (1st ed.) 661; Schoul. Bail. § 218; Jones, Pled. & Col.
Sec. (2d ed.) § 425. It is said, however, that very great
hardship may result from this rule, growing out of the
fact that the payee of the note, with whom the collaterals
were originally deposited, may be solvent and a person to
whom the maker of the note would willingly trust the
securities delivered in pledge, and the transferee might be
one who was insolvent and irresponsible, on account of
which loss would result to the maker of the principal note
if the transferee converted the collaterals to his own use.
Bank v. Davis, 113 Ga. 341, 342, 38 S. E. 836. See also
National Exch. Bank v. Graniteville Mfg. Co., 79 Ga. 22,
25, 3 S. E. 411.
Transferor Stands in Transferor's Shoes. — Under the
ntovis'ons of this section, the plaintiff stands precisely in
the situation, so far as the pledge is concerned, that the
original owner of the note and pledgee, would have oc-
cupied had he retained the possession of the note. Whether
the collateral was actually turned over to the plaintiff or
not, the note itself contained a notice that there was col-
lateral deposited therewith. The original contract of
pledge is not put an end to by repledging the thing
pledged. Jones Collateral Securities (3d ed.), § 420.
[960]
§ 3534
PRINCIPAL AND SURETY
§ 3538
Turner v. Commercial Sav. Bank, 17 Ga. App. 631, 633, 87
S. E. 918. See also Bank v. Davis, 113 Ga. 341, 38 S. E.
836; Cumming v. McDade, 118 Ga. 612, 45 S. E- 479; Payne
v. Power, 140 Ga. 759, 79 S. E. 771.
Sale under Section 3530 by Assignee. — See notes to §
J530.
§ 3534. (§ 2962.) Sale under execution. —
Property in pawn may be seized and sold under
execution against the pawner, but upon notice by
:he pawnee to the levying officer, the court, in dis-
ributing the proceeds, will recognize his lien ac-
:ording to its dignity, and give such direction to
:he funds as shall protect his legal rights.
Cross References. — As to satisfaction of lien by pawnee,
see §§ 3368, 3364 (4). As to order of subjecting debtor's
oroperty, see § 6028. As to levy on property loaned, see
3 3521.
Need Not Foreclose Lien in Independent Proceedings. —
"When property pledged to secure a debt is, while in the
possession of the pawnee, levied upon under an execution
in favor of another against the pawner, and the pawnee
pursues the remedy pointed out in this section, he need not
formally foreclose the lien on the property given him by
§ 3531, but is entitled to have the same enforced for his
benefit under the provisions of the section first cited."
Bank v. Grier, 114 Ga. 398, 40 S. E. 284.
Priorities. — Under this section the question as to the
priorities of the liens can be made and determined when
the fund arising from the sale is subject to distribution.
Peoples Nat. Bank v. Wheedon, 115 Ga. 782, 786, 42 S.
e. 9i.
§ 3535. (§ 2963.) Liability of pawnee.— The
)awnee is bound for ordinary care and diligence,
[f the property pledged be promissory notes or
3ther evidences of debt, the pawnee must exer-
;ise ordinary diligence in collecting and securing
:he same.
See generally, 10 Enc. Dig. 496 et seq.
In General. — "A pawnee should use ordinary diligence
in the care of the pawn. Story, Bail. § 332; Schoul. Bail.
§ 204. Growing out of this rule and really as a part of
the same is the doctrine, that the holder of promissory
notes and other choses in action pledged as security for a
debt is bound to use ordinary diligence to collect the col-
laterals. Schoul. Bail. (3d ed.) § 236; Colebrook, Co. Sec.
§ 114; Hanover Bank v. Brown, 53 S. W. 206; Murphy v.
Bartsch, 23 Pac. 82. This doctrine has been incorporated
in our code. Civil Code, § 2963 (this section). See also
Lee v. Baldwin, 10 Ga. 208; Colquitt v. Stultz, 65 Ga. 304;
Fisher v. Jones Co., 108 Ga. 490, 34 S. E- 172, and authorities
cited." Mauck v. Atlanta Trust, etc., Co., 113 Ga. 242,
243, 38 S. E. 845. See also Norris v. Manget-Brannon Co.,
18 Ga. App. 639, 90 S. E. 79.
"The pledgee, in making a private sale of the property
pledged to him as collateral security, must act in good
faith, and with a reasonable degree of skill and diligence
in securing a fair price and conserving the pledgor's in-
terests, so far as consistent with his own protection. If
the pledgee sells corporate stock fairly and rightfully in
all respects, he is not responsible for its bringing less than
its estimated value, and he must account only for the
amount actually received, where he has exercised the ordi-
nary and reasonable care and diligence required by law as
a part of his contractual obligations to the pledgor. 21 R.
C. L. 692; 21 Cyc. 877, 878, 880." Southern Exchange Bank
v. Langston, 33 Ga. App. 477, 478, 127 S. E. 230.
Holder of Pledged Notes Trustee for Principal Debtor. —
This section imposes upon the pledgee of promissory notes
or other evidences of debt the duty of exercising ordinary
diligence in collecting the same. The holder of such notes
stands in the relation of a trustee for the benefit of the
principal debtor; and for any loss which the pledgor suf-
fers as a direct and proximate result of the failure of the
pledgee to exercise ordinary diligence in making the col-
lection of the collateral-security notes, the pledgor is en-
titled to recover. Kelley & Co. v. Farmers, etc., Bank,
6 Ga. App. 691, 693, 65 S. E. 706.
No Defense between Maker and Pledgee of Note. — The
duty owned by the pledgee to the pledgor, under this sec-
tion, to "exercise ordinary diligence in collecting and se-
curing" promissory notes, is not available to the maker of
such notes as a defense in a suit by the pledgee. Chandler
v. Merchants, etc., Bank, 30 Ga. App. 694, 118 S. E. 785.
Ga. Code— 31
§ 3536. (§ 2964.) Necessary expenses. — The
pawner must pay all necessary expenses and re-
pairs upon the property; but if the pawn itself
has been profitable, or if the pawnee has used it
to his own advantage, the pawner may require
him to account for such profits.
For application of principle, see Collins v. Cochran, 121
Ga. 785, 787, 49 S. E. 771.
§ 3537. (§ 2965.) Increase. — All increase of
property in pawn belongs to the pawner.
As to rights to increase of property loaned, see § 3521.
The pawnees of the stock so held as collateral security
are entitled to collect and hold the dividends upon it for
the use of the pawner (Guarantee Co. of No. Am. v. East
Rome Town Co., 96 Ga. 511), and the dividends should be
applied by the pawnees to the indebtedness due them by
the pawner. Civil Code, this section. Reid v. Caldwell,
120 Ga. 718, 48 S. E. 191. See also Colquitt v. Stultz, 65
Ga. 305, 308.
CHAPTER 14.
Of Principal and Surety.
For full treatment of this subject, see generally, 10 Cum.
Dig. 702 et seq.; 12 Enc. Dig. 1 et seq.
ARTICLE l.
The Contract.
For full treatment of the contract of suretyship, see
generally, 10 Cum. Dig. 708 et seq. ; 12 Enc. Dig. 5 et seq.
§ 3538. (§ 2966.) What constitutes surety-
ship.— The contract of suretyship is that where-
by one obligates himself to pay the debt of an-
other in consideration of credit or indulgence,
or other benefit given to his principal, the prin-
cipal remaining bound therefor. It differs from
a guaranty in this, that the consideration of the
latter is a benefit flowing to the guarantor.
I. In General.
II. Consideration.
III. Distinction between Guarantee and Suretyship.
IV. When Obligation of Surety Ceases.
V. Illustrative Cases.
Cross References.
For full treatment, see 10 Cum. Dig. 702; 12 Enc. Dig. 1.
I. IN GENERAL.
Derivation. — The language used in this section is almost
exactly the language of the English text-books, in defin-
ing the obligation of a surety. Phillips v. Solomon, 42 Ga.
192, 197.
Codification of Common Law. — This section is but a codi-
fication of the common law. Mclntyre v. Moore, 105 Ga.
112, 113, 31 S. E. 144; Musgrove v. Luther Pub. Co., 5
Ga. App. 279, 283, 63 S. E. 52.
Reasonable Construction. — This section must be given a
reasonable and not an unreasonable construction. Ten-
nille Banking Co. v. Ward, 29 Ga. App. 660, 663, 116 S. E-
347.
"The very essence of a contract of suretyship is that
there should be some one liable as principal. This neces-
sarily contemplates that where such a note is given there
must be at least two parties who signed it and are liable
for the payment thereof, the principal and the surety."
Jordan v. Douglas Grocery Company, 27 Ga. App. 296, 297,
108 S. E- 139.
Contract of married woman here was one of suretyship.
McDanil v. Akridge, 5 Ga. App. 208, 210, 62 S. E. 1010.
Fidelity Insurance Distinguished. — There is, of course, a
well-recognized difference between a contract of surety-
ship under this section and one of fidelity insurance as
defined in § 2550. John Church Co. v. Etna Indemnity
Company, 13 Ga. App. 826, 831, 80 S. E. 1093.
Accommodation indorsers are considered merely as suri-
ties, see § 3541.
This rule is applicable only to non- negotiable instruments.
For a treatment of negotiable instruments, see note under §
4294 (29).
Under this section if apparent accommodation indorser
[961]
§ 3538
PRINCIPAL AND SURETY
§ 353S
knew other apparent makers were sureties, and intended
to become surety for principal maker she and the other
sureties were co-sureties, though they signed at different
times and the others had no knowledge or expectation that
she would become surety. Taff v. Larey, 29 Ga. App. 631,
116 S. E. 866, 867. See § 4294 (68).
Drawer of Bill of Exchange. — ■ The contract of one
who draws a domestic bill of exchange is that if the drawee
does not accept he will pay, and if the drawee does not
pay after acceptance he will. After acceptance the con-
tract of the drawer is one of suretyship. Tennille Bank-
ing Co. v. Ward, 29 Ga. App. 660, 116 S. E. 347. Under the N.
I. L-, see § 4294 (61).
Whether Contract Suretyship Question for Jury. —
Whether one signs a note with another as joint principal
maker, or as surety merely, is a question to be determined
by the facts, and not by the opinion that either party to
the contract may entertain. Williams v. Peoples Bank, 9
Ga. App. 714, 72 S. E. 177.
Additional Collateral. — A contract being one of surety-
ship only, accessory to that of the principal and limited to
her obligation to pay the principal's debt under this sec-
tion and § 3539, a bank had no legal right to demand of
the surety additional collateral provided for in' the instru-
ment, and it was therefore unnecessary for it to do so as
a condition precedent to declaring the note due. Chandler
v. Bank, 29 Ga. App. 5, 113 S. E. 25.
Cited in Burkhalter v. Conley, 24 Ga. App. 256, 258, 100
5. E. 725; Erwin v. Brooke, 159 Ga. 683, 685, 126 S. E. 777.
II. CONSIDERATION.
For full treatment, see 10 Cum. Dig. 709, 12 Enc. Dig.
6. As to consideration in contracts generally, see § 4242,
and notes thereto.
Benefit. — It is clear to us that the word 'benefit,' as used
in this section means some real and substantial, and not
a mere nominal benefit. Tennille Banking Co. v. Ward,
29 Ga.' App. 660, 663, 116 S. E. 347.
Need Not Be for Guarantor. — At the time this section
was inserted in the code, and to-day, it is universally held
that if there be a consideration for the promise of the
guarantor, it is immaterial whether or not the guarantor
himself gets any immediate and direct benefit therefrom.
Musgrove v. Luther Pub. Co., 5 Ga. App. 279, 283, 63 S.
E. 52.
Indulgence as Consideration. — Mere forbearance by the
plaintiff to prosecute a judgment, without even so much
as a request therefor, would not have afforded a con-
sideration for the promise of the defendants to be liable as
sureties. But undoubtedly, if they sought and also ob-
tained an agreement for the grant of it, the execution of
the notes signed by them as sureties in consideration
thereof would be binding upon them. Watkins Med. Co. v.
Marbach, 20 Ga. App. 691, 93 S. E. 270; Broughton v.
Joseph Lazarus Co., 13 Ga. App. 153, 78 S. E. 1024; Loe-
wenherz v. Weil, 33 Ga., 760, 766, 127 S. E. 883.
Same — Implied Promise. — An implied promise may be a
sufficient consideration for an express promise whereby
one party obligates himself to pay the debt of another in
consideration of indulgence to his principal, the latter re-
maining bound therefor. Loewenherz v. Weil, 33 Ga. App.
760, 127 S. E. 883. This case affords an illustration of
what constitutes such an implied promise. Ed. Note.
Sufficiency. — It was held under this section that the bene-
fit given to or obtained by the maker or principal on his
transfer of the note with his indorsement supplies a con-
sideration sufficient to bind the surety. Jordan v. First
Nat'l Bank, 19 Ga. App. 118, 91 S. E. 287.
A surety can not defeat liability by proving merely that
he received no monetary consideration, but in order to
sustain a plea of want of consideration he would have to
show that his principal did not receive any consideration
or benefit from the paper sued on. Tennille Banking Co.
v. Ward, 29 Ga. App. 660, 116 S. E. 347.
Consideration as Determining Guarantee on Suretyship.
— See post, this note, "Distinction between Guaranty and
Suretyship," III.
Failure of Consideration. — The verdict in favor of the
principal, on his plea of failure of consideration, extinguished
ipso facto the obligation of the sureties. Schlittler & John-
son v. Deering, etc., Co., 3 Ga. App. 86, 59 S. E. 342. See
§ 3539, and notes thereto.
Effect of Illegality of Consideration Unknown to Surety.
— It was held under this section and the next succeeding
one that, not where a note was executed by one as princi-
pal and by another as surety, and the consideration there-
for was illegal and immoral, but this fact was unknown
to the surety at the time of the execution and delivery of
the note, the surety may nevertheless defend a suit there-
on by showing that the note was in fact executed by the
principal for such a consideration. William, etc., Co. v.
Walton, 22 Ga. App. 433, 96 S. E. 269. See also, Patterson
v. Gibson, 81 Ga. 802, 10 S. E. 9.
III. DISTINCTION BETWEEN GUARANTY AND
SURETYSHIP.
For full treatment of the distinction between suretyship
and guaranty, see 10 Cum. Dig. 705, 708; 12 Enc. Dig. 3.
Primarily and Secondary Liability. — "A fundamental dis-
tinction between a guaranty and suretyship is that in a
contract of guaranty the person obligating himself to pay
the debt of another is primarily, and not merely second-
arily, liable for its payment." Watkins Medical Co. v.
Marbach, 20 Ga. App. 691, 93 S. E. 270; Brock Candy
Co. v. Craton, 33 Ga. App. 690, 127 S. E. 619.
While there might be various earmarks of distinction be-
tween contracts of guaranty and suretyship, including the
one specially mentioned by this section, the one vital and
fundamental line of demarkation lies in the fact that, while
a surety renders himself primarily responsible with the
principal debtor and on the same undertaking, a guarantor
becomes collaterally responsible by virtue of his own sepa-
rate and independent obligation, whereby, without joining
in the principal's undertaking, he yet vouches for his
solvency by guaranteeing that he will be able to perform
as he has agreed. Rawleigh Co. v. Salter, 31 Ga. App.
329, 333, 120 S. E. 679.
Consideration as a Test. — The true test laid down by this
section for determining whether a contract is one of surety-
ship or guaranty, is that a contract of suretyship is one
where the consideration flows exclusively to the principal
maker of the contract, and a contract of guaranty is one
where there is some benefit flowing to the guarantor.
Maril v. Boswell, 12 Ga. App. 41, 44, 76 S. E. 773; Field v.
Willis, 123 Ga. 272, 275, 51 S. E. 2S0; Manry v. Waxelbaum
Company, 108 Ga. 14, 17, 33 S. E. 701; Wright v. Shorter,
56 Ga. 72, 77; Tennille Banking Co. v. Ward, 29 Ga. App.
660, 663, 116 S. E. 347.
As a general proposition a contract of guaranty must be
expected to be founded on some new or independent con-
sideration flowing directly to the guarantor. Etheridge v.
Rawleigh Co., 29 Ga. App. 698, 703, 116 S. E. 903.
Section Not Exclusive Test. — It is true that this section
declares that a contract of suretyship differs from a con-
tract of guaranty, however, this is only one of the .tests
to distinguish a contract of suretyship from a contract of
guaranty. McKibben v. Luther Williams Bkg. Co., 32 Ga.
App. 419, 425, 123 S. E- 726; Schlittler & Johnson v. Deer-
ing, etc., Co., 3 Ga. App. 86, 88, 59 S. E. 342.
Same — Intention of Parties. — "The test laid down in this
section, to distinguish a contract of suretyship from one
of guaranty, is not decisive. As with other contracts, the
whole matter is governed by the intention of the parties.
For instance, in the usual indemnity contracts, the parties
generally intend that the indemnitor shall be surety, al-
though he receives an independent consideration. And
again, sometimes a contract will be construed to be one of
guaranty although the guarantor receives no consideration
other than the benefit flowing to his principal." McKibben
v. Luther Williams Bkg. Co., 32 Ga. App. 419, 425, 123 S.
E. 726; Rawleigh Co. v. Salter, 31 Ga. App. 329, 333, 120 S.
E. 679; Baggs v. Funderburke, 11 Ga. App. 173, 174, 74 S.
E. 937.
Form Immaterial. — See § 3541.
Where Instrument Is Negotiable. — See § 4294 (29) for ef-
fect of N. I. L.
In those cases relating to negotiable instruments, where,
from the nature of the transaction and of the instrument,
the sole test which need be applied is the one mentioned by
this section, there is no great difficulty in arriving at a
conclusion as to the nature of the contract. Etheridge v.
Rawleigh Co., 29 Ga. App. 698, 702, 116 S. E- 903.
Illustrations. — A contract on the back of a promissory
note, signed by one other than the payee thereof and in the
following words, "For value received, we hereby guarantee
the payment of the within note of maturity, or at any time
thereafter, with interest at the rate of 8 per cent, per an-
num until paid, waiving demand, notice of non-payment
and protest," prima facie imports a contract of guaranty.
Baggs v. Funderburke, 11 Ga. App. 173, 74 S. E- 937.
The writing in which C stated to the plaintiff that he
would be responsible for A "up to $500, but not over that
amount," and would be glad if the plaintiff "would extend
to him that amount of credit," was a contract of surety-
ship and not of guaranty; and an action was maintainable
against C and A jointly for a balance due of $500 on the
price of goods sold to A in pursuance of this writing.
Brock Candy Co. v. Craton, 33 Ga. App. 690, 127 S. E. 619.
Persons who sign on the back of a note made by one party
to another, or order, are liable as sureties or joint promi-
[962 ]
} 3539
PRINCIPAL AND SURETY
§ 3540
ors, and the mere limitation in the term "indorser" writ-
en after the name of such a signer would not change the
eal status, if as a matter of fact the indorsement was to
.dd strength to the paper and not to negotiate title. Burk-
lalter v. Conley, 24 Ga. App. 256, 100 S. E. 725.
It was held under this section that a contract, whatever
ie its form, by which one obligates himself to pay the debt
if another in consideration of credit or indulgence or other
>enefit given to his principal, the principal remaining bound
or the debt, is a contract of suretyship. Buck v. Bank,
04 Ga. 660, 30 S. E. 872.
IV. WHEN OBLIGATION OF SURETY CEASES.
See § 3539 and notes thereto. For full and exhaustive
reatment, see 10 Cum. Dig. 717, 12 Enc. Dig. 17. See also,
3544, and notes thereto. Under the N. I. L., see § 4294 (122),
nd see note under § 4294 (29).
V. ILLUSTRATIVE CASES.
See 10 Cum. Dig. 710, 12 Enc. Dig. 7. As to illustrations
f destinctions between guarantee and suretyship, see ante,
his note, "Distinction between Guaranty and Suretyship,"
II. Effect of N. I. E., see § 4294 (29).
§ 3539. (§ 2967.) The nature of the obliga-
ion. — The obligation of the surety is accessory
o that of his principal, and if the latter from
ny cause becomes extinct, the former ceases of
ourse, even though it be in judgment. If,
lowever, the original contract of the principal
/as invalid from a disability to contract, and
his disability was known to the surety, he is
till bound.
Cross References. — See § 3538 and notes thereto. For full
reatment, see 10 Cum. Dig. 717, 12 Enc. Dig. 17, and see §
544 and notes thereto. As to effect where one is surety
/ithout notice of illegality of instrument, see 2 Cum. Dig.
51. As to status the contract of suretyship, see 10 Cum.
)ig. 708 et seq.; 12 Enc. Dig. 5.
Common Law Rule. — This section is but an affirmance
f the common law upon this subject. Phillips v. Solomon,
2 Ga. 192; Schwitzerlet-Seigler Co. v. Citizens, etc., Bk..
55 Ga. 740, 746, 118 S. E. 365.
Meaning of Term "From Any Cause." — By the words
from any cause" as used in this section is meant any
ause dependent on the act or negligence of the creditor..
nd not such a cause as the discharge of the principal un-
er the bankrupt law, which is beyond the control of the
reditor, and by force of the laws of the land. Phillips v.
lolomon, 42 . Ga. 192.
Same — Bankruptcy Not Included. — "This section does
othing more than to announce the general law applicable
0 principal and surety, and does not include that class of
ases where the principal debtor is discharged by opera-
ion of law; the more especially when that law which dis-
harges the principal debtor expressly declares that it
hall not operate to discharge the surety." Phillips v.
Solomon, 42 Ga. 519, 520. Concurring opinion by Warner, J.
Presumption of Continuation Until Revocation. — Where
n absolute promise is made to become responsible for a
ertain amount, with no limitation as to time, and there
5 nothing in the circumstances surrounding the execution
f the contract to evince a contrary intention, it will be
resumed that the promise was to continue until revoked,
nd the promisor will be held liable to the extent of his
uaranty notwithstanding the principal may have, during
he existence of the contract, contracted debts to an
mount equal to or greater than the sum named in the
luaranty. Manry v. Waxelbaum Co., 108 Ga. 14, 21, 33
1 E. 701; Brock Candy Co. v. Craton, 33 Ga. App. 690,
92, 127 S. E. 619.
Determination of Amount Due. — It was held by virtue of
his section that the balance due by a principal on a con-
ract of suretyship must determine the amount due by the
urety thereon. Cartrell v. Johns, 15 Ga. App. 671, 84 S.
5. 175. See also, Norris v. Pollard, 75 Ga. 358, 361. Under
I I. E., see § 4294 (120).
Discharge of Principal Debtor — The verdict of the jury
n favor of the principal, discharging him from liability, ex-
inguished ipso facto the obligation of the sureties, under
his section. Marietta Fertilizer Co. v. Gary, 22 Ga. App.
i04, 96 S. E. 711; Schlittler v. Johnson Deering. etc., Co.,
Ga. App. 86, 59 S. E. 342.
If the principal is discharged from liability by the act
if the party procuring the contract, or by the party seek-
ng to enforce it, and this was done without the knowledge
)f the surety, the surety will also be discharged, under
his section. Patterson v. Gibson, 81 Ga. 802, 807, 10 S.
E. 9; Richardson v. Allen, 74 Ga. 719; Langston v. Ader-
hold, 60 Ga. 377, 380.
Deed of Assignment by Principal. — It was held under
this section that where the maker of notes with sureties
thereon executes a deed of assignment for the benefit of
his creditors, with a provision therein that the acceptance
of any benefits thereunder by his creditors will be a full
satisfaction of the claims of the creditors against such
maker, the acceptance, by the payee of such notes, of bene-
fits under the assignment terminates the liability of tbe
maker of such notes, and would likewise discharge the
sureties thereon, if done without their knowledge and con-
sent. Schwitzerlet-Seigler Co. v. Citizens, etc., Bk., 155 Ga.
740, 118 S. E. 365. Under N. I. E., see § 4294 (120).
Where Creditor Reserves Rights Against Sureties. —
Where the creditor reserves all rights against the sureties,
or it appears from the whole transaction that the sureties
should remain bound, the sureties would not be discharged.
Schwitzerlet-Seigler Co. v. Citizens, etc., Bk., 155 Ga. 740,
118 S. E. 365. Under N. I. E., see § 4294 (120).
When the holder of the notes accepted benefits under the
assignment with the knowledge of the sureties, and under
an express understanding with the sureties that their
liability on the notes was to continue, the sureties were
not discharged from liability on the notes, although the
acceptance of such benefits was a full satisfaction of the
notes so far as the maker was concerned. Schwitzerlet-
Seigler Co. v. Citizens, etc., Bk., 155 Ga. 740, 118 S. E.
365.
Extension of Further Credit to Principal. — The extension
of credit to the principal in excess of the sum named in
the contract of suretyship will not release the surety, the
limit thus named being merely as to the surety's liability,
and not as to the credit to be extended. Brock Candy Co.
v. Craton, 33 Ga. App. 690, 127 S. E. 619. Under N. I. E., see
§ 4294 (120).
Usury as Effecting Discharge of Surety. — See § 3438 (1)
and notes thereto.
Failure of Surety to Set Up Defense. — If, for any cause,
the surety failed to set up his defense, and judgment went
against him, he would not be precluded by that judgment,
under this section, from showing this fact and protecting
himself, at least to this extent. Norris v. Pollard, 75 Ga.
358, 363.
Disability of Principal in Bail Bond Known to Sureties.
— Pursuant to the provisions of this section, any disability
of the principal in a bond or recognizance which is known
to the bail, will not prevent the bail from being bound by
their undertaking, they being instrumental in causing him
to be discharged from arrest, and delivered into their
friendly custody. Weldon v. Colquitt, 62 Ga. 449.
Bond Executed by Principal under Duress. — A bond exe-
cuted under the duress of the principal is void as to the
surety also, if the surety acted without knowledge of the
duress; and knowledge of the fact of imprisonment does
not necessarily involve knowledge of its want of legality.
Patterson v. Gibson, 81 Ga. 802, 10 S. E. 9. Whether the
sureties would be released if they knew of the duress at
the time of executing was questioned but not decided in,
Gibson v. Patterson, 75 Ga. 549, 554.
Transfer of Note without Surety's Endorsement. — It was
held under this section where one signs as maker a note
payable to himself, and another signs it as surety only, the
maker's indorsement converts it into a negotiable instru-
ment, and his transfer of the note binds the surety, not-
withstanding the absence of an indorsement by the surety.
Jordan v. First Nat'l Bank, 19 Ga. App. 118, 91 S. E. 287.
Change of Nature of Contract. — See § 3543 and notes
thereto.
§ 3540. (§ 2968.) Stricti juris.— The contract
of suretyship is one of strict law, and his liabil-
ity will not be extended by implication or inter-
pretation.
See §§ 3543, 3550, and notes thereto. As to extension of
liability of surety, see 10 Cum. Dig. 709; 12 Enc. Dig. 5.
In General. — This section calls for a strict construction
of a contract of suretyship. American Surety Co. v. Small
Quarries Co., 157 Ga. 33, 35, 120 S. E. 617; Hannah v. Eove-
lace-Young Lbr. Co., 159 Ga. 856, 858, 127 S. E. 225.
When a man promises to become sponsor for the debt ol
another, his promise is to be strictly construed by virtue
of this section. Musgrove v. Luther Publishing Co., 5 Ga.
App. 279, 284, 63 S. E. 52. See also, Tennille Banking Co.
v. Ward, 29 Ga. App. 660, 663, 116 S. E. 347; Kenney v.
Armour Fertilizer Works, 33 Ga. App. 126, 129, 125 S. E.
284.
The contract of suretyship is one of strict law by virtue
of this section and any change of the nature or terms of
[ 963 ]
§ 3541
PRINCIPAL AND SURETY
§ 3541
the contract without the consent of the surety, discharges
him. Camp v. Howell, 37 Ga. 312, 319.
The undertaking of the sureties on a criminal bond is
stricti juris by virtue of this section, and where the bond
obligates the principal to be present at a specified term of
court, but contains no provision for his appearance from
term to term, or other like provision, the appearance of
the principal at the term specified in the bond would be a
compliance with the condition thereof. Roberts v. State,
32 Ga. App. 339, 123 S. E. 151.
Funds Received after Term of Office. — It was held under
this section and § 291, par. 1, that the official bond of the
former treasurer of the county did not impose upon his
sureties any obligation with reference to the county funds
received by him after his term of office from his successor.
Fannin County v. Daves, 23 Ga. App. 220, 98 S. E. 104.
Extension of Agreement. — This liability of a surety can
not be extended beyond the actual terms of his engage-
ment, and will be extinguished by any act or omission
which alters the terms of the contract, unless it be with
his consent. Washington Loan, etc., Co. v. Holliday, 26
Ga. App. 792, 107 S. E. 370.
Same — Extension of Time. — See notes to § 3543.
Compliance with Condition in Bond — No Forfeiture. — It
was held under this section that where the condition in a
criminal recognizance was that a principal should appear
at a particular term of court, but it contained no provision
as to appearing from term to term, or other like provision,
the appearance of the principal at the specified term was
a compliance with the condition, and her failure to appear
at a subsequent term to which the case was continued,
would not subject the sureties to a forfeiture. Colquitt v.
Smith, 65 Ga. 341.
Sureties in Contracts with Municipalities or Counties. —
See §§ 389 (1) et seq., and notes thereto.
Garnishment bond must be statutory bond in order for
the court to render a summary judgment against the sure-
ties. Roney v. McCall, 128 Ga. 249, 253, 57 S. E. 503.
Section Inapplicable. — The principle laid down in this sec-
tion held inapplicable to the facts in Richardson v. Allen, 74
Ga. 719, 722. See § 3538 and notes thereto.
§ 3541. (§ 2969.) Form immaterial.— The
form of the contract is immaterial, provided the
fact of suretyship exists; hence, an accommoda-
tion indorser is considered merely as a surety.
Cross References.— See § 3538 and notes thereto. As to
the form of the contract of suretyship, see 2 Cum. Dig. 857;
10 Cum. Dig. 710; 2 Enc. Dig. 423; 12 Enc. Dig. 6, 7.
Effect of the N. I. L. — The latter part of this section provid-
ing that an accomodation indorser is considered merely as a
surety, and the Georgia cases holding that the liability of
such indorser is that of surety and not of indorser, are modi-
fied by the N. I. L. to the extent, that such indorsers are
liable as indorsers. See the note under § 4294 (29). Ed. Note.
In General. — While the fact of suretyship did not appear
on the face of the note, yet the defendants were clearly
entitled to show that they were only sureties by virtue of
this section. Duggan v. Monk, 5 Ga. App. 206, 207, 62 S.
E- 1017.
An allegation that a defendant is sued as indorser of a
promissory note, but that he received no independent con-
sideration, is equivalent to an averment that he is an ac-
commodation indorser or surety. Baggs v. Funderburke,
11 Ga. App. 173, 74 S. E. 937.
Under this section the form of the contract can make no
difference, if the fact of suretyship is made to appear from
the evidence and that fact was known to all the parties.
Buck v. Bank of the State of Georgia, 104 Ga. 660, 664, 30
S. E- 872; Norris v. Pollard, 75 Ga. 358, 362.
Thus, one who signs a note with another apparently as
a joint principal may in an action by the payee plead and
prove that he had no interest in the paper and was only
surety for the accommodation of the other and principal
signer, and that the plaintiff took the note with knowledge
of such facts. Cheshire v. Hightower, 33 Ga. App. 793, 127
S. E. 891.
The fact that the payee of the note might have been in-
duced to make the loan on the faith of the surety's credit,
rather than upon that of the principal debtor, would not
alte.r the rule. Cheshire v. Hightower, 33 Ga. App 793
127 S. E. 891.
Language of Contract as Determining Legal Character.
It was held under this section that the mere language of
the contract does not determine its legal character. "Courts
may disregard formal expressions, to ascertain the real in-
tent of the parties, * * *." Schlittler & Johnson v. Deer-
ing, etc., Co., 3 Ga. App. 86, 88, 59 S. E. 342.
It was stipulated in the instrument sued on in this case
that its "true intent and purpose" was to render the makers
thereof liable for any indebtedness of the corporation in
which they were stockholders "precisely to the same ex-
tent" as if each of them "had duly and regularly indorsed
the paper of said corporation," and that they should be
jointly and severally liable therefor "as indorsers are liable
to the holder of a negotiable instrument under the law
merchant." It is clearly manifest from this language and
the instrument as a whole that the parties signing it did
so with the specific intent to become liable as "accommo-
dation indorsers" or sureties by virtue of this section. Mc-
Kibben v. Fourth Nat'l Bank, 32 Ga. App. 222, 122 S. E.
891.
Who Creditor May Proceed Against. — An indorser, even
though he be an accommodation indorser only, is a surety
under this section, and a creditor who holds an execution
against both principal and surety may, at his election, pro-
ceed against the property of either. Bank v. Wardlaw, 20
Ga. App. 741, 93 S. E. 236.
Contribution — Rule Prior to Adoption of Code. — Accom-
modation endorsers were not subject to contribution under
the common law or prior to the adoption of the code. Camp
v. Simmons, 62 Ga. 73, 84.
Same — Present Rule. — This section renders accommoda-
tion endorsers subject to contribution, but is not applicable
to the present case since this contract was made prior to
1863 the year in which the code went into effect. Camp v.
Simmons, 62 Ga. 73, 84.
Accommodation indorsers upon notes payable at a char-
tered bank are, by virtue of this section, liable to contri-
bution as other mere sureties. Hull v. Myers, 90 Ga. 674,
16 S. E- 653; Freeman v. Cherry, 46 Ga. 15.
Presumption from Separate and Subsequent Instrument.
— One may assume that the relation of suretyship exists
even by an instrument separate and distinct from that of
his principal and also subsequent in time. McKibben v.
Fourth Nat'l. Bank, 32 Ga. App. 222, 122 S. E. 891.
Negotiable Draft — Liability of Drawer. — Under N. I. I,.,
see § 4294 (61).
It was held under this section and § 4269 that where
a negotiable draft, with a security thereon, was drawn,
and accepted by the drawees, who held a mortgage to
secure advances, and who received property of the drawer
sufficient to pay the draft, after negotiation, the ac-
ceptors were primarily and absolutely bound therefor to
the holder; the drawer was bound to pay if the acceptors
did not, and his security was equally liable with him.
Parmelee v. Williams, 72 Ga. 42.
Same — Endorsement. — It was held under this section
that where a draft by one person on another is indorsed
by a third person, whose indorsement is neither necessary
nor proper for transmission of 'title, in the negotiation of
the draft, but is for the sole purpose of guaranteeing pay-
ment, the person so indorsing becomes a surety thereon.
Washington Loan, etc., Co. v. Holliday, 26 Ga. App. 792,
107 S. E- 370. But see § 4294(29) for law since N. I. L-
Same — No Acceptance — Effect of Signing Across Face of
Draft. — A person drew a draft on a firm, payable to him-
self or order, for an amount stated, "for supplies, etc., fur-
nished me to make my crops, this to be an advance to me
under my mortgage" of same date, waiving homestead and
other exemptions. There was no acceptance of this, but
the drawer and after him a third party signed their names
across the face of the paper, and it was delivered to the
drawees: The court held that it was in legal effect a prom-
issory note, and the effect of the signature of the third
person on the face of the paper was to make him a surety
for the principal debtor under this section. Patillo v. Mayer
& Glauber, 70 Ga. 715. But see § 4294(29) for law since
N. I. L.
Signers Prima Facie Principals — Endorser Prima Facie
Surety. — It was held under this section and § 5796 that a
note signed on the face by A, B, and C, with nothing to
indicate a relation to the note by any of them other than
as principals, and indorsed in blank on the back by D, is,
in an action upon the note against B, C, and D, by F, the
original payee, prima facie the obligation of A, B, and C,
as principals, and of D, as an accommodation indorser or
surety, and the suretyship is prima facie for A, B, and C, as
principals together. Taff v. Larey, 29 Ga. App. 631, 116
S. E. 866. But see § 4294 (29) for law since N. I. L.
Pleadings — In view of this section and §§ 3553, and 3559,
the petition in an action against an indorser alleging that
petitioner was the owner and holder of the notes sued on
in due course, bona fide and for value, held to state a
cause of action, and not demurrable for failure to allege
defendant's relationship to the notes . and to the other par^J
ties to the notes. Meidrim v. People's Bank, 28 Ga. App.
294, 111 S. E. 76.
Same — What Maker or Acceptor May Plead and Prove.
[ 964 ]
§ 3542
RELATIVE RIGHTS OF CREDITOR AND SURETY
§ 3543
— In a suit by the holder, the maker or acceptor may plead
and prove that he stood in the position of a mere accom-
modation acceptor, and therefore a surety; that the holder
knew this fact, and that the maker was not interested in
the note, before taking it that the holder had extended the
time of payment for a valuable consideration, promised
by the indorser, without the consent of the maker; and
that the indorser had become insolvent. Hall v. Capital
Bank of Macon, 71 Ga. 715.
Evidence. — The evidence offered tended to show that B
signed the note purely for the accommodation of S to en-
able the latter to borrow the money from the bank, that B
did not receive a cent of the money and had no interest in
the loan. He therefore obligated himself to pay S's debt
in consideration of the credit extended to S by the bank.
S remained bound for the debt. Hence, under the pro-
vision of this section, B was only a surety for S. Buck v.
Bank, 104 Ga. 660, 663, 30 S. E. 872. .
Same — Parol — Consideration — Accommodation, — It was
held under this section that where a negotiable promissory
note purports to have been given "for value received," and
suit is brought thereon by the payee, the* maker may plead,
and prove by parol, that the note was executed without
consideration as between the parties, and for the sole pur-
pose of enabling the payee to indorse it to a third person
as collateral security for a debt which the payee desired
to contract and which he promised to pay without assist-
ance from the maker of the note. Such a note is a mere
accommodation paper, and, while in the hands of the person
to be accommodated, is without consideration and binds
nobody, but it would be otherwise if the note were in the
hands of an endorsee who received it for value. Rheney
v. Anderson, 22 Ga. App. 417, 96 S. E. 217.
For note on status of accommodation endorsers, see §
4294(29).
Cited in Burkhalter v. Conley, 24 Ga. App. 256, 258, ICO
S. E- 725,
ARTICLE 2.
Relative Rights of Creditor and Surety.
§ 3542. (§ 2970.) Effect of release.— The
creditor may release or compound with the
surety without releasing the principal, but the
release of or compounding with one surety dis-
charges a cosurety.
See § 3544 and notes thereto. See 10 Cum. Dig. 720, 12
Enc. Dig. 20.
To "compound" is to compromise or make a composition
whereby a creditor discharges his debtor on payment of a
smaller sum than that actually owing. There was no
compounding with the surety in the present case. Wil-
liams-Thompson Co. v. Williams, 10 Ga. App. 251, 73 S.
E. 409.
Attempt to Release Lack of Consideration. — "The release
of or compounding with one surety discharges a cosurety"
under this section but an attempt to release one of the
sureties does not have this effect where the attempted re-
lease is unenforceable for lack of consideration. Williams-
Thompson Co. v. Williams, 10 Ga. App. 251, 73 S. E. 409.
Failure of Co-surety to Disclose True Nature of Note. —
The failure of a co-surety to disclose the true nature and
purport of the note at the time of endorsement is insuffi-
cient to release an accommodation endorser who seeks to
avoid liability on the ground that the endorsement was
obtained by fraud and deceit. Hollengshead v. Nat. Bank,
104 Ga. 250, 30 S. E. 728.
Effect of the N. I. L. — This and the following sections
in so far as they relate to the discharge of persons second-
ary liable on negotiable instruments are superseded by §
4294 (120) of the N. I. L., which makes provision for the
discharge of the persons secondary liable on negotiable in-
struments.
§ 3543, (§ 2971.) A change of contract.— A
change of the nature or terms of a contract is
called a novation; such novation, without the
consent of the surety, discharges him.
Cross References — See § 3544 and notes thereto. For
full treatment of effect of change in nature of the contract.
See 12 Enc. Dig. 24. As to release when principal's obliga-
tion becomes extinct, see § 3539, and notes thereto. As to
alteration of written contracts generally, as effecting re-
lease, see § 4296 and notes thereto. As to Novation of Con-
tracts, see 9 Cum. Dig. 8; 9 Enc. Dig. 736.
In General. — The liability of a surety can not be extended
beyond the actual terms of his engagement, and will be
extinguished by any act or omission which alters the terms
of the contract, unless it be with his consent. Washington
Loan, etc., Co. v. Holliday, 26 Ga. App. 792, 107 S. E. 370.
See also, § 3540. Richardson v. Allen, 74 Ga. 719, 722. And
also, Paulk v. Williams, 74 Ga. App. 183. 110 S. E. 632.
Effect of the N. I. L. — See note on this subject under §
3542.
Section Applicable to Guarantors. — This section applies to
guarantors as well as to sureties; and any material altera-
tion in the original contract, without the knowledge or con-
sent of the guarantor thereof, would relieve him from the
guaranty. Fairmont Creamery Co. v. Collier, 21 Ga. Apu.
87, 92, 94 S. E. 56; Little Rock Furniture Co. v. Jones "&•
Co., 13 Ga. App. 502, 79 S. E. 375.
It was held by virture of this section that a guarantor is
not released by reason of the mere fact that an account
which he guaranteed has been reduced to a note, when it
appears the account was for goods furnished "in pursuance
of the contract of guaranty," and when it appears that the
note represents the same amount and stands in lieu of the
account. Kalmon v. Scarboro, 11 Ga. App. 547, 75 S. E-
846.
Change Benefiting Principal and Surety. — The rule
enunciated in this section will not be altered by the fact that
the change in the contract, which was made without the
knowledge or consent of the surety, nevertheless inured to
the benefit of the principal and the surety. If the change
is made without the knowledge or consent of the surety,
the surety's complete reply is non haec in foedera ven?.
Fairmont Creamery Co. v. Collier, 21 Ga. App. 87, 92; Lit-
tle Rock Furniture Co. v. Jones & Co., 13 Ga. App. 502,
79 S. E. 375.
Immaterial Alterations. — Any change or alteration made
in an instrument after its execution, which is impliedly
authorized by the signers thereof, and which merely ex-
presses what would otherwise be supplied by intendment,
is immaterial and will not discharge one signing as
surety. Watkins Med. Co. v. Harrison, 33 Ga. App. 585,
126 S. E- 909. But see dissenting opinion of Luke J., m
that case.
Renewal Note Taken with Forged Signature. — While,
under this section and § 3544, a surety will be discharged
by a novation changing the nature or terms of his con-
tract without his consent, and therefore the acceptance by
a payee bank, without the agreement or consent of the
surety, of a new note in renewal or payment of the original
note signed by the surety will discharge him from liability,
such an acceptance by the payee bank, when induced by
the actual fraud of the maker in presenting the renewal
instrument with the signature of the surety forged there-
on, and without knowledge or reasonable ground to sus-
pect, on the part of the bank, that the signature was in
fact a forgery, will not release the surety, where it ap-
pears that upon discovery of the fraud of the maker the
bank promptly disaffirmed its previous acceptance of the
renewal note, by regaining possession of the original note
and suing thereon. Biddy v. People's Bank, 29 Ga. App.
580, 116 S. E. 222.
Renewal of Note at Same Rate of Interest. — It was held
by virture of this section that the mere renewal of a note
at the same rate of interest is not a novation. Partridge
v. Williams' Sons, 72 Ga. 807, 810.
New Note in Discharge of First Note. — When a note
was given by principal and security, during the civil war,
which, at the close of the war, was scaled to a gold stand-
ard, a new note given by a principal alone for the amount
thus scaled, and the new note accepted by the payee, in
the discharge of the first note, it was a novation of the
original contract under this section and § 4326. Hamilton
v. Willingham, 45 Ga. 500-1.
Substitution of New Bill On Condition — Disregard of
Condition. — If a surety authorized the substitution of the
new bill on a condition useless to himself, and the condi-
tion was disregarded, he might claim the principle an-
nounced in this section. Central Ga. Bank v. Cleveland
National Bank, 59 Ga. 667, 672.
Extension of Time — Must Be Definite. — In order to dis-
charge a surety by an extension of time to the principal,
not only must there be an agreement for the extension, but
the proof must show that the indulgence was extended for
a definite period fixed by the agreement. Ver Nooy v.
Pitner, 17 Ga. App. 229, 86 S. E. 456; Bunn v. Commercial
Bank, 98 Ga. 647, 26 S. E. 63. For collection of cases on
this point, see 12 Enc. Dig. 23.
Same — Oral Extension. — Where after the maturity of a
note the debtor pays to the creditor a sum of money rep-
resenting advance interest upon the principal at the rate of
eight per cent, per annum for a definite period of time, in
[ 965 ]
§ 3543
RELATIVE RIGHTS OF CREDITOR AND SURETY
§ 3544 I
consideration of a promise by the creditor to extend the
time of payment of the principal, this agreement, although
not in writing, constitutes a valid contract between the
parties, and, when made without the consent of the surety
upon the note, operates to release and discharge the latter
by virtue of this section. Lewis v. Citizens & Southern
Bank, 31 Ga. App. 597, 121 S. E. 524.
Same — Must Be for Valuable Consideration. — If the ex-
tension is not for valuable consideration it is revocable at
the will of the creditor and hence will not discharge the
surety. See 12 Enc. Dig. 22. See also, § 3544.
Same — Fraud in Procuring. — It was held under this sec-
tion and § 3544 that if the maker of a note induced the
payee to extend the time of payment, by fraudulent repre-
sentations, upon the discovery of such fraud, the creditor
could have rescinded the agreement but if he failed so to do
and retained the benefits of transaction this would operate
to discharge a surety or accommodation indorser. Burnap
v. Robertson, 75 Ga. 689.
Same — Extension to Partner. — A creditor of the partner-
ship who has notice of the dissolution and of the agree-
ment by the continuing partner to assume the debts of
the firm is bound to accord to the retiring partner all the
rights of a surety. "Hence, if, without his knowledge or
consent, the creditor, upon a sufficient consideration, ex-
tends the time of payment of the firm indebtedness, the
retiring partner is released from the indebtedness, and the
creditor must thereafter look only to the firm assets and
to the individual assets of the continuing partner." Grigg
v. Empire State Chem. Co., 17 Ga. App. 385, 87 S. E. 149.
Same — Usury. — Where the creditor had, for a considera-
tion, extended the time of payment of the note signed by
the surety, and in addition thereto had calculated, and un-
dertook to and did collect, usurious interest from the princi-
pal, and by reason of such payment did indulge the princi-
pal debtor and extend the payment of the note, all of
which, according to the evidence, was without the knowl-
edge or consent of the surety, the surety was discharged
by virtue of this section. Pickett v. Brooke, 24 Ga. App.
651, 101 S. E. 814.
But a mere promise to pay usury is void and the surety
is not discharged. Lewis v. Brown, 89 Ga. 115, 14 S. E.
881. See 12 Enc. Dig. 23.
Same — Effect of Agreement with Surety. — See notes to
§ 3546.
Release of Acceptor and Endorser on Collateral Security.
— It was held by virtue of this section that when a surety,
or accommodation indorser, signs a note, the consideration
of which is that it shall be held by the bank where it is
negotiated, as collateral security for another note or draft
due said bank, and the bank, without the knowledge and
consent of the surety, changes the contract by releasing
the acceptor and indorser of that other note or draft, the
security or accommodation indorser of the collateral note
is discharged. Stallings v. Bank of Americus, 59 Ga. 701.
Increase of Rate of Interest. — It was held under this section
and § 3540 that if, after a promissory note payable to a
named payee or bearer was signed by one az surety, the
principal, before it came into the hands of one who there-
after received it as bearer in the course of negotiation be-
fore due, so altered the same as to increase the rate of in-
terest agreed to be paid from eight to twelve per cent., such
note was by such alteration rendered void as to such surety;
and this is true even though, at the time it came into the
hands of such bearer, he had no notice of the alteration by
the principal. Hill v. O'Niell, 101 Ga. 832, 28 S. E- 996. See
also, Merritt Camp v. Howell, 37 Ga. 312.
Official Bond.— In Walsh v. Colquitt, 64 Ga. 740, it was
held by virtue of this section that there was such a nova-
tion of the contract on the bond of the public printer as to
discharge the sureties, if done without their consent.
Charging Section. — This section and §§ 3540 and 3544 de-
fining a contract of suretyship and the rights of a surety,
were pertinent to the issues involved, and should have been
given in charge to the jury on timely written request, or
even without request. Haigler v. Adams, 5 Ga. App. 637,
638, 63 S. E. 715.
Admissibility of Parol Evidence. — A contract which by law
is required to be in writing can not be changed by parol
evidence so as to substitute therefor, by novation, a con-
tract which is also required by law to be in writing. Evi-
dence of a parol agreement is inadmissible to establish the
novation of a contract by law required to be in writing.
Ver Nooy v. Pitner, 17 Ga. App. 229, 86 S. E. 456. As to
establishing fact of suretyship by parol, see § 3556 and notes
thereto.
Cited in McMillan v. Benfield, 159 Ga. 457, 126 S. E. 246.
§ 3544. (§ 2972.) Of risk.— Any act of the
creditor, either before or after judgment against
[ 966 ]
the principal, which injures the surety or in-
creases his risk, or exposes him to greater lia-
bility, will discharge him; a mere failure by the
creditor to sue as soon as the law allows, or
negligence to prosecute with vigor his legal
remedies, unless for a consideration, will not re-
lease the surety.
I. In General.
II. Acts of the Creditor in General.
III. Failure to Sue and Dismissal of Suits.
IV. Loss of Securities by Creditor.
Cross References.
See § 3543 and notes thereto. For full treatment of this
subject, see 10 Cum. Dig. 717 et seq. ; 12 Enc. Dig. 17 et
seq.; 2 Cum. Dig. 865; 2 Enc. Dig. 436.
I. IN GENERAL.
Derivation. — This section is of judicial origin, being merely
the adoption and incorporation into the code, by legislative
approval, of the principles previously asserted on Brown
v. Ex'rs of Riggins, 3 Ga. 112, and Jones v. Whitehead, 4
Ga. 400. Cloud v. Scarborough, 3 Ga. App. 7, 8, 59 S. E.
202. (Dissenting opinion, Harris, J.) in Toomer v. Dicker-
son, 37 Ga. 428, 446.
Common Law. — This section made no change in the princi-
ples of the Common Law. (Dissenting opinion, Harris, J.)
Toomer v. Dickerson, 37 Ga. 428, 448.
General Rule. — This section is a codification of the general
rule. Johnson v. Longley, 142 Ga. 814, 815, 83 S. E. 952;
Tiinons v. Butler, 138 Ga. 69, 70, 74 S. E. 784.
Distinction between Discharge in Whole and in Part. —
While the language of this section is broad, yet there is a
distinction between certain things which will operate to
discharge a surety in whole and others which will only dis-
charge him in part. Johnson v. Longley, 142 Ga. 814, 815,
83 S. E. 952.
Effect of N. I. L— See note under § 3542.
II. ACTS OF THE CREDITOR IN GENERAL.
See post, this note, "Loss of Securities by Creditor," IV.
Under this section, acts of "the creditor"— the opposite
party are those that relieve. Perkins v. Terrell, 1 Ga. App.
250, 257, 58 S. E. 133.
Acts Enumerated Are Disjunctive. — The acts which may
effect the discharge of the surety are divided into three
distinct classes, not necessarily related to or affecting each
other; and proof of any coming within either class will dis-
charge the surety. Kenney v. Armour Fertilizer Works,
33 Ga. App. 126, 130!, 125 S. E. 284.
"The use of the disjunctive 'or' shows that injury to the
surety or loss is not the only thing which will discharge the
surety. It may be loss, or increase of risk, or exposure to
greater liability. Any one of these three, according to the
words of the statute, will discharge the surety." Kenney v.
Armour Fertilizer Works, 33 Ga. App. 126, 129, 125 S. E-
284.
Same — Distinction. — The distinction between the first
ground of discharge under this section and the other two
is apparent, because the injury naturally refers to some
thing in the past from which the injury resulted. Cloud v.
Scarborough, 3 Ga. App. 7, 9, 59 S. E. 202.
When Proof of Loss Required. — "It is only when the dis-
charge of a surety is claimed upon the ground that the act
of the creditor has injured him that proof of loss on the
part of the surety is required (and in some such cases it
might not be necessary). Proof of a loss by the surety is
not required where his discharge is dependent upon an act
of the creditor which has increased his risk, nor where it is
claimed that the act of the creditor has operated to dis-
charge the surety by exposing him to greater liability."
Kenney v. Armour Fertilizer Works, 33 Ga. App. 126, 125
S. E. 284.
Act Must Be Contrary to Legal Sanction. — Neither the
omission of some act not specially enjoined by law, nor the
commission of some act expressly authorized by law, by the
creditor, which tends to increase the risk of the security,
will operate as a discharge under this section. Stewart v.
Barrow, 55 Ga. 664.
To Constitute Injury Act Must Be Positive. — The rule of
law recognized in this state seems to be that some positive
act must be done by the creditor, either before or after
judgment, which injures the surety in some way; mere fail-
ure or negligence on the part of the creditor will not relieve
the surety; and the exceptions to this general rule will be
found to be where the creditor omits to do something by which
some collateral security in his hands is made unproductive,
or where he is notified under the statute to proceed and he
§ 3544
RELATIVE RIGHTS OF CREDITOR AND SURETY
§ 3544
fails or refuses. McMillan v. Heard Nat. Bank, 19 Ga.
App. 148, 153, 91 S. E. 235.
That the plaintiff in the senior execution, after obtaining
in the justice's court a judgment on the first bond, did not
seek to have the proceeds of the sale of the property under
the junior execution applied to the senior execution, or ob-
ject to the application of such proceeds to the junior execu-
tion, would not afford a sufficient reason for discharging
the surety under this section on the trial of an appeal en-
tered to the judgment rendered against him and his princi-
pal in the magistrate's court. Reese v. Worsham & Co.,
110 Ga. 449, 35 S. E. 680.
Extension of Time. — See notes to § 3543.
III. FAILURE TO SUE AND DISMISSAL OF SUITS.
"A mere forbearance towards the principal does not dis-
charge the surety." Hall v. Langford, 18 Ga. App. 73, 88
S. E. 918. McMillan v. Heard, 19 Ga. App. 148, 151, 91 S.
E. 235; Hearn v. Durrence, 33 Ga. App. 296, 125 S. E~. 794;
but if the consequence of that forbearance is injury to the
surety, it is equally true that he is discharged. Brown v.
Riggins, 3 Ga. 405, 412.
Exception. — It was held under this section that "mere
non-action by the creditor will not release the surety, un-
less such non-action makes unproductive some collateral
surety, or is based upon a consideration paid by the princi-
pal debtor to the creditor, or he is not notified under the
statute to collect the debt." Jordan v. Bank, 5 Ga. App.
244.
Payment of Interest as Consideration for Forbearance. — A
promise by the principal debtor to pay interest upon the
debt during the time of forbearance forms no consideration
for such forbearance, when the debtor is already bound to
pay such interest. Harrell v. Kutz & Co., 22 Ga. App. 235,
95 S. E. 717.
It was held under this section that where indulgence was
granted to the acceptors in consideration of the payment of
eighteen per cent- interest, and the acceptors became insol-
vent, the security was thereby released. Parmelee v. Wil-
liams, 72 Ga. 42.
Failure to Prove Debt in Bankruptcy. — As this section
provides non- action of failure to sue will not release a surety
the failure of the holder of the note to prove his debt in
bankruptcy against the principal debtor, after having sur-
rendered such a payment as that referred to above would
not, operate to discharge the surety. Higdom v. Bell, 25
Ga. App. 54, 102 S. E. 546; Jordon v. Bank, 5 Ga. App. 244,
62 S. E. 1024.
Consideration Must Be Alleged. — It was held under this
section that the defense that the plaintiff was guilty of
laches, in that he did not bring suit earlier, and thereby
increased the risk of the surety, was properly stricken, be-
cause there was no allegation that there was a considera-
tion for the postponement, nor an averment that the se-
curity had given a written notice to sue. Baumgartner v.
McKinnon, 10 Ga. App. 219, 226, 73 S. E. 519.
Notice to Sue. — See § 3546, and notes thereto.
Dismissal of Suit. — The risk of a surety on an appeal
bond is increased, and he is therefore discharged, when the
suit is dismissed by the creditor or by the court at the
creditor's instance. Armstrong v. Lewis, 61 Ga. 680. See
Lewis v. Armstrong, 64 Ga. 647. * And for full treatment,
see 10 Cum. Dig. 727; 12 Enc. Dig. 37.
But when a joint action is brought against the principal
and the surety on a joint and several promissory note, and
the plaintiff, by amendment, voluntarily dismisses his ac-
tion against the principal, the surety is not thereby ipso
facto discharged from liability. McMillan v. Heard Nat.
Bank, 19 Ga. App. 148, 91 S. E. 235.
Same — Dismissal of Co-surety. — The dismissal as to one
surety of a suit already brought, for a consideration paid
by him, and not bringing any further action against him,
constituted such conduct as released the other surety on the
administrator's bond. Wilkinson v. Conley, 133 Ga. 518, 66
S. E. 372.
Effect of N. I. L.— See note under § 3542.
IV. LOSS OF SECURITIES BY CREDITOR.
As to loss of right of subrogation as discharging surety,
see 12 Enc. Dig. 38.
In General. — Where a creditor has control of liens, securi-
ties, or any other means whereby he might satisfy the debt,
and parts with them, or by his negligence allows them to
become lost or depreciated in value, thus cutting off the
surety from his right to be subrogated to such liens, etc.,
the surety is discharged to the extent of his injury by the
loss of such liens. Lewis v. Armstrong, 80 Ga. 402, 7 S. E.
114; Stewart v. Barrow, 55 Ga. 664; Poulain v. Brown, 80
Ga. 27, 5 S. E. 107. See 12 Enc. Dig. 32, for other cases.
The true doctrine is "that if, when the execution is issued,
it becomes a valid lien of the principal without any levy
being made, and such lien is lost in consequence of the re-
turn of the execution without a levy by procurement of the
creditor, and the surety is thereby injured, he is discharged
pro tanto." This is in accord with justice and common
sense, and is within the spirit, if not the very letter of this
section. Griffith v. Moss, 94 Ga. 200, 21 S. E. 643.
Failure to Preserve Lien. — The failure of a creditor to pre-
serve a lien which he had on property of the principal debtor
discharges a surety. For instance, where a creditor failed
to record a mortgage within the time prescribed, it was held
to operate as a discharge of the surety. Stevens v. Zach
ary, 27 Ga. 428; Bledsoe v. Ivey, 27 Ga. App. 235, 107 S. E.
615; Bank v. Douglas, 51 Ga. 205; Seymour v. Bank, 157
Ga. 99, 121 S. E- 578. For full treatment of the effect of
such failure, see 10 Cum. Dig. 726, 12 Enc. Dig. 35.
And it has been held under this section and § 3543 that
proof of debt in the bankrupt court by the judgment creditor
against the principal, without an express reservation of the
lien of the judgment will discharge the lien of the judgment;
and the accommodation indorser or surety is discharged to
the extent of the injury he thereby receives. See Jones v.
Hawkins, 60 Ga. 52.
Failure to Enter Judgment. — Where a plaintiff, at a given
term of the court, took a verdict against a principal and
sureties but failed for several terms to enter a judgment
thereon, the sureties were discharged. Hall v. Pratt, 103
Ga. 255, 29 S. E. 764. See also, Hayes v. Little, 52 Ga. 555.
Effect of Dormancy of Judgment. — It was held under this
section where a principal and surety executed a bond re-
quired by the court to stay the collection of a judgment,
conditioned to pay that judgment in a certain contingency,
in a suit brought thereon, seven years after the happening
of such contingency, it is no defense to the surety that the
judgment may have become dormant in the meantime.
Harris v. Woodard, 142 Ga. 297, 82 S. E- 902.
But an accommodation indorser of a promissory note, sued
jointly with the maker thereof, was not discharged merely
because the plaintiff, after an entry of "default" had been
made upon the judge's docket, permitted one or more terms
to elapse before entering up a final judgment in the case.
Hall v. Pratt, 103 Ga. 255, 29 S. E. 764.
Execution — Failure to Issue. — In the absence of notice to
proceed, the surety is not discharged by failure to issue
execution on a judgment obtained against the principal.
Hall v. Langford, 18 Ga. App. 73, 88 S. E. 918; Crawford v.
Gaulden, 33 Ga. 173.
Same — Failure to Enter. — Omission to enter execution on
general docket in ten days did not effect discharge of surety
under this section. William v. Kennedy, 134 Ga. 339, 344.
Failure to Sell Collateral at Maturity. — The right of a
payee of a note to resort to the sureties thereon is not lost
because of his failure to sell personal property held as col-
lateral, immediately on the maturity of the note. Timmons
v. Butler, Stevens & Co., 138 Ga. 69, 74 S. E. 784.
Removal of Property Out of County. — Removal of princi-
pals property outside the county and beyond reach of judg-
ment, by the plaintiffs in fi. fa. discharges the surety to the
extent of the property removed. Dasher v. Brannen &
Brother, 29 Ga. App. 253, 254, 116 S. E. 206. This decision
seems to conflict with and overrule in part. Lumsden v.
Leonard, 55 Ga. 374. Ed. Note.
Joint debtors have a right of contribution which may be
enforced like that of co-sureties, and if the creditor so acted
as to place the property of one of the joint debtors beyond
the reach of other, he would be responsible to the latter for
the injury done by such wrongful diversion; and this injury
may be setj up in a claim case, as a discharge, at least to
the extent of the damage done, as well as by an action for
damages. Green v. Mann, 76 Ga. 246.
Delivery of Property to Trustee. — It was held under this
section where, in an equity cause between the remainder-
men and the trustee, certain property was awarded to the
latter, and it was not sought to hold him responsible there-
for, the delivery of such property to him did not work a
discharge to the sureties, and a plea to that effect was
properly stricken. Haddock v. Perham, 70 Ga. 572.
Dismissal of Levy — On Personalty. — If the fi. fa. were
levied upon the property of the principal defendant and the
levy dismissed by the creditor whereby injury resulted to
the surety, it is just that such act inure to his discharge.
Rawson v. Gregory, 59 Ga. 736; Brown v. Reggins, 3 Ga.
405. See 12 Enc Dig. 32.
Same — On Real Property. — The dismissal of a levy on the
real propeity of the principal can not hurt or discharge the
surety, for the lien of the judgment on the property being
realty can not be removed, and the lien of the judgment is
one to which the surety becomes entitled the moment he
pays the debt. Wyley v. Stanford, 22 Ga. 397; Mansey v.
Shepperd, 57 Ga. 68. See 12 Enc. Dig. 33.
Promises and Assurances by Creditor. — It was held under
[ 967
§ 3545
RELATIVE RIGHTS OF CREDITOR AND SURETY
§ 3546
this section that the mere promise by the holder of a
promissory note, made to a surety thereon, without con-
sideration, to the effect that the creditor would proceed
forthwith against the principal debtor, standing alone, would
be a nudum pactum, and would have no effect upon the
obligation of the surety. If, however, the surety is induced
by such an assurance to forego any means of indemnity or
protection, an estoppel will arise to the extent of the re-
sulting loss, and the surety will be discharged to that ex-
tent. Johnson v. Longley, 142 Ga. 814, 816, 83 S. E- 952.
This opinion in this case by Lumpkin J., presents an ex-
cellent review of the authorities on this subject, Ed. Note.
See also, 12 Enc. Dig. 39.
Payment by Insolvent Creditor. — It was held by virtue of
this section that the mere fact that the holder of a note in
good faith accepts payment thereof from the maker at a time
when the maker is insolvent, so that such payment is void-
able in the event of the maker's bankruptcy, and is there-
after actually avoided by his trustee or voluntarily sur-
rendered to the trustee by the holder, will not discharge the
note or release a surety thereon. Higdon v. Bell, 25 Ga.
App. 54, 102 S. E. 546.
Notice to Sureties of Default in Payment. — Where a con-
tract for a future sale of goods is signed by the prospective
vendor as creditor, and the prospective purchaser as princi-
pal debtor, and by sureties for such purchaser, whereby the
obligation of continuing suretyship is imposed upon the
sureties, guaranteeing payment for goods which the con-
tract provides shall be furnished from time to time by the
prospective vendor to the prospective purchaser, and the
contract provides for weekly settlements for the goods fur-
nished under the contract, but does not require that notice
of any default in weekly payments shall be given by the
creditor to the sureties, the securities are not released from
liability to the creditor, or confined to the first weekly de-
fault, although such sureties are given no notice by the
creditor of the original default, and are unaware thereof.
Georgian Co. v. Jones, 154 Ga. 762, 115 S. E. 490.
Misrepresentations as to the shape and quality of the land,
by principal inducing surety to sign a note and materially
increasing the risk constitute a good defense. Saterfield v.
Spier, 114 Ga. 127, 39 S. E. 930.
When Proof of Loss Required. — See ante, this note, "Acts
of Creditors in General," II.
Effect of N. I. L.— See note under § 3542.
§ 3545. (§ 2973.) Tender by surety.— The
surety may tender to the creditor the amount
of his debt, and ^demand that the evidence of
and the securities for the same be delivered up
to him to be enforced against his principal or
cosureties; and a failure of the creditor to com-
ply, when within his power, shall operate to dis-
charge the surety.
As to tender in general, see § 4322 et seq.
Tender to Bank in Charge of Superintendent. — Where, to
an action by the superintendent of banks under § 2366(58),
the surety pleads that he is discharged by a refusal of a
tender and demand allowable under this section, the burden
is upon the surety to prove that the tender and demand
were made either to the superintendent of banks or to one
duly authorized by him, as provided in § 2366(58), to make
collections for the bank. Bennett v. Simmons, 30 Ga. App.
529, 118 S. E. 493. See notes of this case under § 2366(58).
Part Payment Not Sufficient to Control Fi. Fa.— See notes
to § 5558.
Effect of N. I. L— See note under § 3542.
§ 3546. (§ 2974.) Notice to sue.— Any surety,
guarantor, or indorser, at any time after the
debt on which he is liable becomes due, may
give notice in writing to the creditor, or his
agent, or any person having possession or con-
trol of the obligation, to proceed to collect the
same out of the principal, or any one of the sev-
eral principals liable therefor; and if the creditor
or holder refuses or fails to commence an action
for the space of three months after such notice
(the principal being within the jurisdiction of
this State), the indorser, guarantor, or surety
giving the notice, as well as all subsequent in-
dorsers and all cosureties, shall be discharged.
No notice shall be considered a compliance with
the requirements of this section which does not
state the county of the principal's residence.
Act 1826, Cobb, 595; Act 1831, Cobb, 596; Act
1859, Cobb, 54; Acts 1866, p. 23.
See § 3544, and notes thereto. For full treatment of this
subject, see 10 Cum. Dig. 724 et seq.; 12 Enc. Dig. 29.
Effect of the N. I. L. — This section is modified by the
N. I. L. See the note under § 4294 (29).
Strictly Construed. — This section was made in derogation
of the common law rule upon this subject, and introduced a
new principle of commercial law. It operates as a restriction
upon the rights of the holder, and should be strictly con-
strued. Howard v. Brown, 3 Ga. 523, 531.
Section Affects Remedy Only. — The provisions of this sec-
tion do not affect either the nature, obligation, construc-
tion, or validity of the contract, but go only to the remedy.
Sally v. Bank, 150 Ga. 281, 103 S. E. 460; Sally v. Bank, 25
Ga. App. 509, 103 S. E. 798.
This section operates as the extinguishment of a remedy,
and not of a right, and is therefore in the nature of a limita*
tion of actions. Sally v. Bank, 150 Ga. 281, 103 S. E. 460;
Sally v. Bank, 25 Ga. App. 509, 103 S. E- 798; Vangant v.
Arnold, 31 Ga. 210.
The object of this section was for the benefit and protec-
tion of securities. Bank v. Mumford, 6 Ga. 44, 54.
Section Not Applicable to Statutory Bonds. — The provi-
sion of this section has no reference to statutory bonds —
such as a forthcoming bond — taken in the progress of a ju-
dicial proceeding. Hobbs v. Taylor, 11 Ga. App. 579, 75 S.
E. 906.
Section Applicable to Guarantor. — A guarantor has the
same right as a surety by written notice to compel the in-
stitution of a suit against the principal under this section.
Fields v. Willis, 123 Ga. 272, 274, 51 S. E. 280.
When Notice May Be Given. — The section provides that
the surety, "at any time" after the debt on which he is
liable becomes due, may give the notice. Sally v. Bank,
150 Ga. 281, 103 S. E. 460; Sally v. Bank, 25 Ga. App. 509,
103 S. E. 798. Therefore, when a surety has been sued
separately from his principal, it is not too late to give the
notice. Sally v. Bank, 150 Ga. 281, 103 S. E. 460; Sally v.
Bank, 25 Ga. App. 509, 103 S. E. 798.
Notice of Intention to Proceed under Section. — To entitle
a security or endorser to the benefit of the provisions of
this section for his relief, it is only necessary for him to
notify the holder to sue the note. It is not necessary that
he should, in addition, notify the holder that unless he did
proceed to collect the note that he would claim the benefit
of this section. Denson v. Miller, 33 Ga. 275.
To Whom Notice Given — Creditor Holding Note. — Where a
promissory note to which there is a surety, is held by a
creditor of the owner, as a collateral security — such creditor
is the proper person, to be notified by the surety, to sue the'
maker, under this section. McCrary v. King, 27 Ga. 26.
Same — Bank Holding Note. — Where notice to sue the
principal maker of a note, by the surety under this section,
was directed to the cashier of the bank which was the
holder of the note, it was sufficient notice to the bank, es-
pecially as it appeared, that the bank acted upon such no-
tice. Bank v. Mumford, 6 Ga. 44.
Notice Must Be Written. — The notice to the creditor by a
surety to proceed against the principal debtor, required by
this section, is written notice, and verbal or parol notice,
however urgent, will not suffice, see, Timmons v. Butler,
138 Ga. 69, 74 S. E. 784; Jordan v. Bank, 5 Ga. App. 244, 62
S. E. 1024; Johnson v. Longley, 142 Ga. 814, 83 S. E- 952;
Longley v. Johnson, 22 Ga. App. 96, 95 S. E- 315.
Notice Must State County of Residence. — "No notice shall
be considered a compliance with the requirements of this
section which does not state the county of the principal's
residence." Smith v. Morris Fertilizer Co., 18 Ga. App.
217, 89 S. E. 174.
And it is not a compliance with the section to say "of
Macon, Georgia," there being in the state both a county of
Macon and a city of Macon, and the notice not indicating
that the county was meant rather than the city. Ware v.
City Bank, 59 Ga. 840.
Must Be Positive Demand To Sue. — It must be a positive
demand to sue, and so understood by the parties at the
time, in order to discharge the surety. If it appeared that
it was a request of a favor, and so considered by the par-
ties at the time, then the surety was not discharged by
reason of a failure to sue in three months. Bethune v.
Dozier, 10 Ga. 238.
"Lose no time in suing" is a command to sue. Howard
v. Brown, 3 Ga. 524.
But where two letters were written by the surety, one
being mailed before the maturity of the debt and containing
merely the expression of a desire on the part of the surety
that the plaintiff would collect when the obligation became
due, and the other suggesting the advisability of bringing
[ 968]
§ 3547
RIGHTS OF SURETY AGAINST PRINICPAL
§ 3551
suit and expressing doubt whether the money could be made
later, but containing no command, there was no notice given
as required by this section, and the letters were rightly ex-
cluded. Smith v. Morris Fertilizer Co., 18 Ga. App. 217, 89
S. E- 174.
Notice by One Surety Sufficient. — A notice, by one surety
is as effectual as if all the sureties -were to unite in it, a
notice by one surety is as available to the creditor as a
notice from all. .Tones v. Whitehead, 4 Ga. 400.
When Notice Waived. — If the surety give notice, and then
ask the creditor for indulgence, he waives the notice, pro-
vided his request was made before the expiration of three
months after the notice, and provided it was a request for
indulgence to his principal, not to himself. Bailey v. New,
29 Ga. 214.
But a request for indulgence made after the expiration of
the three months will not have the effect of a waiver of
notice. Bailey v. New, 29 Ga. 214.
Removal of Principal at Risk of Endorser. — Notice was
given to the holder to sue the maker, but before the ex-
piration of the three months allowed by this section, the
maker removed out of the state, so that no suit could be
instituted against him; held, that the holder has the whole
three months allowed by this section, within which to sue,
and that the removal of the maker was at the risk of the
indorser, and not of the holder. Howard v. Brown, 3 Ga.
523.
Effect of Agreement for Extension of Time. — Where for
value received the surety consents that the creditor "may
grant any extension on the note that he deems proper," the
surety can not, by giving the notice contemplated in this
section, revoke his consent allowing the extension of time,
and be discharged from liability on the note, merely because
of a failure on the part of the creditor to commence an ac-
tion against the principal debtor within the period of three
months. Armour, etc. v. Bond, 139 Ga. 246, 77 S. E. 22.
Evidence. — It does not appear that the indorser parted
with the means of protecting himself in consequence of any
assurances made to him by the creditor, and the record dis-
closes nothing that would relieve the indorser from the
necessity of complying with the strict provisions of this
section. Smith v. Morris etc., Co., 18 Ga. App. 217, 89 S.
E. 174.
Question for Jury. — Where it is doubtful whether the
surety intended to request the creditor to sue the principal
as a matter of law, it is proper to submit it to the jury to
find from the facts how the parties understood the matter.
Bethume v. Dozier, 10 Ga. 236.
§ 3547. (§ 2975.) Extending liability.— The
creditor must pursue his remedy against the
surety within the time prescribed by law, and
no payment or promise by the principal or by a
cosurety can extend the obligation of the surety
or the remedy of the creditor against him.
As to the effect of statute of limitations, see 12 Enc. Dig.
42.
Payments. — A payment and entry on a note by the prin-
cipal does not prevent the bar of the statute of limitations
from attaching in favor of his security, under this section
and § 4388. McBride v. Hunter, 64 Ga. 656.
In McLm v. Harvey, 8 Ga. App. 360, 367, 69 S. E- 121, it
is said: whether the credits on the notes were made by the
principal or the maker thereof, or by the present plaintiff as
surety, we think it follows, that these payments or credits
did not extend or revive the original liability, did not create
new promises that were binding upon any of the other sure-
ties who were not parties to such payments, and did not
constitute new points for the running of the statute of
limitations, in so far as the rights of other sureties not par-
ties to such payments were concerned. This principle, we
think, falls within the spirit, if not the letter, of this section.
§ 3548. (§ 2976.) Promise in ignorance. — If
by an act of the creditor the surety is dis-
charged, and in ignorance of the fact of such
discharge the surety promises to pay, such
promise shall not be binding.
Discharge Necessary. — This section applies where there is
discharge; and if an indorser being discharged for want of
notice of non-payment, promises to pay, making the prom-
ise in ignorance of his legal rights, he will not be bound.
Langston v. Aderhold, 60 Ga. 377, 378-9.
§ 3549. (§ 2977.) Process, how sued out—
When the fact of suretyship appears on the face
of the . contract, the creditor shall sue out proc-
ess and enter up judgment against him as such.
Act 1845, Cobb, 598; Act 1850, Cobb 600.
As to what necessary in judgments against sureties and
endorsers, see § 5938.
Amendment. — Judgment is not void by reason of failing to
describe the security as security, but is amendable. Saf-
fold v. Wade, 56 Ga. 174.
Return of Fi. Fa. — The principal and sureties in a promis-
sory note were sued jointly. The sureties paid off the fi.
fa. and the sheriff made an entry to that effect on the fi.
fa., it was held, that under this section the sureties had no
right to return the fi. fa. and take out a ca. sa. and arrest
the principal. Elam v. Rawson, 21 Ga. 139.
§ 3550. (§ 2978.) Judgment against surety. —
It shall be lawful to sign up judgment against
principal and sureties at the same time, as in
cases of appeal, in all cases in law or equitable
proceedings when a bond has been made by the
losing party conditioned to pay the eventual
condemnation-money in said action, and it shall
not be necessary as heretofore to bring suit
upon said bond. Acts 1893, p. 131.
Former Law. — Prior to the adoption of this section, in order
to obtain judgment against sureties on bonds of losing par-
ties in equitable proceedings, conditioned to pay the eventual
condemnation-money, it was necessary to bring suit on the
bond. Miller v. Watson & Co., 135 Ga. 408, 409, 69 S. E.
555; Offerman v. Waycross, Co., 112 Ga. 610, 613, 37 S. E-
871.
Purpose of Section. — The purpose of this section was to
make the judgment so entered against the surety binding
to the same extent as a judgment against him if rendered
in a separate suit on the bond, in other words, that such a
judgment should be a substitute for a judgment which might
theretofore have been rendered in a separate suit on the
bond. Miller v. Watson & Co., 135 Ga. 408, 410, 69 S. E.
55.
"Eventual Condemnation Money." — Eventual condemnation
money is that which is recovered in the identical case in
which the appeal is taken; "It is the amount fixed and set-
tled by the judgment or decree of the court in the case."
Harrell v. Kutz & Co., 22 Ga. App. 235, 95 S. E. 717.
The bond given by the defendants in the instant case was
for the payment of the judgments which may be rendered
in the case, and will therefore be treated as a bond for the
eventual condemnation money under this section. Harrell
v. Kutz & Co., 22 Ga. App. 235, 95 S. E. 717.
It was held under this section that while judgment against
the sureties on a bond to dissolve an injunction and re-
ceivership can not be entered in the main case, where the
bond is conditioned otherwise than for the eventual con-
demnation money, (Jordan v. Callaway, 138 Ga. 209, 75 S.
E. 101) yet, where, as in this case, the obligation of the
bond was conditioned to pay unto the plaintiff whatever
sum may be shown to be due him under the contract, and
the liability was not limited, to an amount other than that
which might be ultimately fixed and settled by the judgment
or decree in the case, a summary judgment in the same case
against the sureties on the bond was permissible, and an
affidavit of illegality, based on the contention that one of
the sureties had not had his day in court, could not prop-
erly be sustained. Smith v. Newsome, 26 Ga. App. 743, 107
S. E. 269.
Surety Concluded by Prior Judgment. — The surety on the
eventual condemnation -money bond given by the defendant
in the distress -warrant proceeding was concluded by the
prior judgment, even though he had been allowed to inter-
vene in the distress-warrant proceeding. Price v. Carlton,
121 Ga. 12, 48 S. E. 721.
ARTICLE 3.
Rights of Surety against Principal.
Rights of Surety Against Principal. — For full treatment
of this subject, see 10 Cum. Dig. 729 et seq. ; 12 Enc. Dig.
43 et seq.
§ 3551. (§ 2979.) Process against principal.
— A surety or indorser is entitled to the process
of attachment against his principal before pay-
ment of the debt, under the same circumstances
as any other creditor.
As to right of surety to have attachment against his
principal, see § 507.0.
[ 969
§ 3552
RIGHTS OF SURETY AGAINST PRINICPAL
§ 3555
Independent Action by Surety. — This section and §§ 3552,
3553, 3559, 3560 are remedies to which the surety can resort
for his protection, independently of any voluntary action by
the creditor. McMillan v. Heard Nat. Bank, 19 Ga. App. 148,
154, 91 S. E. 235.
§ 3552. (§ 2980.) For money paid. — Payment
by a surety or indorser of a debt past due enti-
tles him to proceed immediately against his
principal for the sum paid, with interest there-
on, and all legal costs to which he may have
been subjected by the default of his principal.
Cross References. — See § 3551 and note thereto. See also.
12 Enc. Dig. 43. As to right of surety who has paid debt
to collect interest, see 7 Enc. Dig. 675.
Voluntary Payment. — Voluntary payment by a surety of a
past-due debt entitles him to proceed immediately against
the principal for the amount paid in his behalf under this
section. Shattles v. Baker, 18 Ga. App. 300, 89 S. E. 373.
Payment of Second Note. — When the surety paid the debt
he was entitled to reimbursement under this section. The
fact that the payment was accomplished by paying a sec-
ond note would not afreet the right to recover on the first
note. Frye v. Sims, 144 Ga. 74, 86 S. E. 249.
Attorney's fees stipulated in note may be recovered by
surety. Yeomans v. Puder, 13 Ga. App. 785, 80 S. E. 34.
Applicable Only to Sureties or Endorsers. — The wife of the
grantor in the security deed paying debt secured by another
deed was not entitled to be subrogated " to the grantee's
rights. Hiers v. Exum, 158 Ga. 19, 29, 122 S. E. 784.
§ 3553. (§ 2981.) Effect of judgment against
surety. — If the payment was made under judg-
ment, and the principal had notice of the pend-
ency of the suit against the surety, the amount
of such judgment shall be conclusive against the
principal as to the amount for which the surety
was bound. If the payment was not made un-
der judgment, the principal may dispute the va-
lidity of the payment as to the amount, or as to
the competency of the person to whom it was
paid.
Cross References.— See §§ 3559, 3551 and notes thereto. As
to the rate of interest allowed, see § 3436. As to joinder of
parties defendant, see 2 Cum. Dig. 887. As to who are
necessary parties, see 10 Cum. Dig. 731; 12 Cum. Dig. 51.
Joint and Several Obligation — Who Holder May Sue. — The
holder of a joint and several note may sue the obligors
jointly or severally, or sue any one of the signors alone.
On such an obligation he may sue the principal and surety
jointly, or at his option he may sue either the principal -or
the surety alone under this section and § 3559. McKibben
v. Fourth Nat'l Bank, 32 Ga. App. 222, 122 S. E. 891; Madi-
son v. Bell, 30 Ga. App. 458, 118 S. E. 439; Cone v. American
Surety Co., 29 Ga. App. 676, 679, 116 S. E- 648; Johnson v.
Georgia, etc., Co., 21 Ga. App. 530, 94 S. E. 580; Millan v.
Heard Nat. Bank, 19 Ga. App. 148, 151, 91 S. E. 235.
Pleading. — In view of this section and §§ 3541 and 3559
the petition in an action against an indorser alleging that
petitioner was the owner and holder of the notes sued on
in due course, bona fide and for value, held to state a
cause of action, and not demurrable for failure to allege
defendant's relationship to the notes and to the other par-
ties to the notes. Meldrim v. People's Bank, 28 Ga. App.
294, 111 S. E. 76.
§ 3554. (§ 2982.) Payment of usury.— If the
contract was originally usurious, and the surety
in payment includes the usury, he shall recover
the same from the principal unless previously
to the payment he had notice of the intention of
the principal to resist usury.
Cross References. — As to personal nature of plea of usury,
see § 3428. As to right of creditor to collect usurious in-
terest from insolvent debtor, see § 3428. As to rate of in-
terest allowed, see § 3436.
In General. — Usury paid by a surety on a contract origin-
ally usurious may be recovered "back by him in an action
of assumpsit for money had and received. Whitehead v.
Peck, 1 Ga. 140.
Effect of Knowledge. — But, if he knew the contract to be
usurious when he paid the debt, he can not recover it back
out of his principal. Jones v. Joyner, 8 Ga. 562.
Neither can he recover it if, previous to the payment, he
had knowledge of the intention of the principal to resist the
usury. Eay v. Seago, 47 Ga. 83.
And also, where the surety had notice of the usury a"nd
might have pleaded it, but did not, he is estopped to re-
cover it of his principal. Hargraves v. Eewis, 3 Ga. 167.
Where Surety Reimbursed. — When a surety, who is in-
demnified by a mortgage, voluntarily pays a usurious note
and is subsequently reimbursed by his principal for prop-
erty, the latter can not recover of the creditor the excess
of interest in an action of assumpsit for money had and re-
ceived. Whitehead v. Peck, 1 Ga. 141.
§ 3555. (§ 2983.) Foreclosure of mortgage.
— If the principal executes any mortgage or
gives other security to the surety or indorser to
indemnify him against loss by reason of his
suretyship, the surety or indorser may proceed
to foreclose such mortgage, or enforce such
other lien or security, as soon as judgment shall
be rendered against him on his contract.
As to when indemnity lien is enforceable, see 10 Cum.
Dig. 730; 12 Enc. Dig. 49.
What Section Prescribes. — In Importers, etc. Bank v. Mc-
Ghees, 88 Ga. 702, 708, 16 S. E. 27, it was said: We think
this section prescribes a rule which was intended to be gen-
eral, and that it comprehends all cases of the class men-
tioned. By clear implication it negatives any right of fore-
closure until the surety or indorser has paid something on
the debt, or judgment has been rendered against him on his
contract.
"In so far as this section of the code is applicable at all
to the facts of this case, it simply provides a remedy for
the indorser or surety, in the absence of any stipulations in
the contract between the principal and the surety on the
subject." Jones v. Norton, 9 Ga. App. 333, 342, 71 S. E. 687.
When Endorser May Proceed against Property Given as
Security. — "Under this section no foreclosure can be had or-
dinarily until after judgment against the mortgagee." Jones
v. Norton, 136 Ga. 835, 841, 72 S. E- 337; Importers, etc.,
Bank v. McGhees, 88 Ga. 702, 16 S. E. 27.
Same — Right of Creditor Prior to Obtaining Judgment. —
The creditor, prior to obtaining judgment under this sec-
tion, can not proceed in his own behalf to enforce the mort-
gage, even though the principal debtor and the indorser both
be insolvent, the rights of the creditor depending, not upon
the law of trust, but upon the law of subrogation. Burnett
v. Gainesville Nat'l, Bank, 28 Ga. App. 255, 110 S. E- 753;
Importers, etc., Bank v. McGhees, 88 Ga. 702, 16 S. E. 27.
Same — Petition to Impound. — Nor can the creditor, prior
to obtaining judgment according to the provisions of this
section -on his debt, maintain a bill or petition to impound
the mortgaged assets to await the recovery of such judg-
ment. Up to the rendition of judgment, the right to pre-
serve the security is one personal to the indorser, and to
which the creditor is not subrogated. Importers Bank v.
McGhees, 88 Ga. 702, 16 S. E. 27.
Same — Right to Stipulate Without Reference to Statutory
Right. — "This section recognizes the right of the principal
to give to his surety or indorser a mortgage or other se-
curity to secure and protect him on his indorsement or
suretyship, and, if it is legal for such a mortgage to be
given, it can be provided in the mortgage that it may be
foreclosed or enforced in such way as the parties may stipu-
late, without reference to the statutory right referred to."
Jones v. Norton, 9 Ga. App. 333, 342, 71 S. E. 687.
Payment by Surety — Right to Foreclose Mortgage. — Where
the security to a promissory note was indemnified by a
mortgage executed by his principal, and after the note be-
came due, the security voluntarily gave his own note to the
creditor, which was accepted by him in full payment of the
joint debt, and the joint note given up to the security, it
was held that the security might, foreclose his mortgage
against his principal, and collect from him what was actu-
ally due on the note in the hands of the original creditor,
and that the principal debtor was entitled to make any de
fense to the note, which he could have made against such
original creditor. Mims v. McDowell, 4 Ga. 182.
Actions — Parties — Right of Endorser to Sue. — An indorser
has the right to purchase a negotiable note from the payee;
and, when the note is due by its terms or becomes due by
a contract between the maker and the indorser, the latter
can sue the former on the note. In such case the suit is
based, not upon the obligation of the maker to reimburse his
indorser for money paid out for his benefit under this sec-
tion, but upon the obligation to pay his negotiable note to
whomsoever may be the lawful holder thereof. Jones v.
Norton, 9 Ga. App. 333, 71 S. E- 687.
A mortgage given to indemnify a bail-bond in an action ex
[970]
§ 3556
RIGHTS OF SURETY AGAINST PRINICPAL
§ 3557
delicto was a mortgage executed to secure the payment of
an indebtedness and after judgment was rendered against
the principal and surety it became a debt within the mean-
ing of this section. Conley v. The State, 85 Ga. 348, 366, 11
S. E. 659.
Deed of trust to two of sixteen accommodation endorsers
was a voluntary assignment for the benefit of creditors and
was not a mortgage or mere security under this section and
a compliance with the essential requirements of the statute
was necessary to its validity. Johnson v. Brewer, 134 Ga.
828, 68 S. E. 590.
Deed Given Surety to Indemnify Him Created No Lien. —
Under this section, in the absence of any judgment against
the surety upon the indebtedness represented by a note,
there was no right in the surety to enforce any lien against
the property, arising out' of a deed to secure a debt to him
from the principal, and therefore no right existed in the
surety to which the creditor could be subrogated. Burnett
v. Gainesville Nat'l Bank, 28 Ga. App. 255, 110 S. E. 753.
§ 3556. (§ 2984.) Proof of suretyship.— If the
fact of suretyship does not appear on the face of
the contract, it may be proved by parol, either
before or after the judgment (the creditor not
being delayed in his remedy by such collateral
issue between the principal and his surety), if
before judgment the surety shall give notice to
the principal of his intention to make such proof.
Act 1826, Cobb, 593.
See § 3559 and notes thereto. For full treatment of this
subject see, 10 Cum. Dig. 713, 714 et seq.; 12 Enc. Dig. 15.
Purpose. — This section was enacted for the purpose of
protecting the securities on bond, note or other contract.
Bank v. Mumford, 6 Ga. 44, 53.
Reason for Rule. — The rule laid down in this section rests
primarily upon the reason that where there is in fact a con-
tract of suretyship and this is made to appear, the relative
rights of the makers' interests can be fixed and the surety
given his right of subrogation generally without affecting
the rights of the holder of the note. Hill v. Driskell, 15
Ga. App. 458, 459, 83 S. E. 859.
"Delay" as used in this section is such as arises from
fault or negligence of the suretv. Whitley v. Hudson, 114
Ga. 668, 40 S. E. 838.
If a party defendant to an action upon a contract by his
answer alleges that he signed the paper as a security, and
is by an erroneous ruling denied the right to establish be-
fore judgment the fact thus set up, he is entitled to a new
trial; and granting the same would not violate that portion
of this section, which declares that in such a case the credi-
tor is not to be "delayed in his remedy." Whitley v. Hud-
son, 114 Ga. 668, 40 S. E. 838. See also, Ryle v. Farmers,
etc., Bank, 33 Ga. App. 459, 461, 127 S. E- 233.
Applicable Only Where Defendant Seeks to Prove Surety-
ship.— This section applies only to cases where the defendant
seeks to establish himself as a surety, not by way of a plea
in bar to a suit against him on the contract, but for the
purpose of enforcing his rights as a surety against his
principal. Brown v. Merchants Trading Co., 26 Ga. App.
331, 106 S. E. 208.
Special Defense. — This section allows sureties to make
"special defense," i. e., to show that they are sureties for
the purpose of acquiring the right to control the judgment
under section 6046, and to do this even after judgment.
Brown v. Harris, 20 Ga. 403, 407.
Suretyship Appearing on Face of Instrument. — When the
fact of suretyship sufficiently appears upon the face of the
contract as pleaded, it is probably unnecessary for the de-
fendant's protection for the fact to be made to appear in
the judgment. Loewenherz v. Weil, 33 Ga. App. 760, 773, 127
S. E. 883.
Notice of Intention to Prove. — This section requires notice
of an intention to prove suretyship only when the fact of
suretyship does not appear upon the face of the contract.
Taff v. Earey, 29 Ga. App. 631, 635, 116 S. E. 866.
And it is obvious from the language of the section that
its provision as to notice applies solely to a collateral issue
between the principal and his surety in which the creditor
has no interest, and it is therefore no concern of his whether
the surety, in a case covered by the statute, gives notice to
his principal of his intention to make proof of his surety-
ship. Bank v. Justus, 150 Ga. 286, 103 S. E. 794.
Same — Married Women. — But a female defendant whose
name appears as a principal on the face of the contract sued
on may plead in bar to the suit that she was in fact a surety
only, and that, being a married woman at the time she en-
tered into the contract, the contract of suretyship was void;
and it is not necessary to the validity of such plea that it
appear that notice was given to the alleged principal, as re-
quired by this section of her intention to make such de-
fense. Brown v. Merchants Trading Co., 26 Ga. App. 331,
106 S. E. 208. See also, Colt Co. v. Miller, 30 Ga. App. 148,
117 S. E. 113.
Same — Pleading. — The plea setting up the fact of surety-
ship and praying that the judgment be molded accordingly
must also show that previous notice had been given the
principal of the surety's intention to make such proof.
Johnson v. Georgia, etc., Co., 21 Ga. App. 530, 94 S. E. 850.
See also, Freeman v. Bank, 20 Ga. App. 334, 336, 93 S. E-
34.
Also, his plea must contain an appropriate prayer for in-
dependent affirmative relief. Morrison v. Citizens & South-
ern Bank, 19 Ga. App. 434, 91 S. E. 509.
Apparent Joint Principals. — Where two or more persons
sign a note apparently as joint principals, and there is
nothing in the instrument indicating that some of the makers
are principals and others sureties, the presumption of law
is that all are joint principals. This presumption, however,
may be rebutted, and in an action by the payee against all
the makers as joint principals it may be shown by parol
evidence that some of the makers are sureties for others
the burden being on those setting up suretyship to establish
it. Bank v. Justus, 150 Ga. 286, 103 S. E- 794, and cases
there cited; Seymour v. Bank, 157 Ga. 99, 121 S. E. 578;
Duckett v. Martin, 23 Ga. App. 630, 99 S. E- 151; Hill v.
Driskell, 15 Ga. App. 458, 83 S. E. 859.
As a necessary corollary to the ruling announced in the
preceding paragraph, a surety of the character therein men-
tioned is not limited by the provisions of this section, to re-
lief over against his principal after payment of the debt;
nor in a suit by the payee, where the apparent maker
pleads that he is surety only and alleges grounds of dis-
charge of liability to the payee, have the provisions of this
section, prescribing notice to the principal, any application
to such defense. Seymour v. Bank, 157 Ga. 99, 121 S. E.
578.
Same — Relative Position of Names Immaterial. — If the fact
of suretyship does not appear on the face of a note, it may
be proved by parol under this section; and the relative
position of the makers' names is immaterial, if one is surety
of the other. Trammell v. Swift Fertilizer Works, 121 Ga.
778, 49 S. E. 739.
Estoppel. — Where the written assignment of the note,
signed by the payee, recites that for value received he trans-
ferred and assigned it with full recourse on himself, he was
estopped from testifying that as a matter of fact he was an
accommodation indorser only. This section is clearly not
applicable to the facts of this case. Phillips v. Bridges, 20
Ga. App. 489, 93 S. E. 115.
Applied in Shank v. Washington Exch. Bank, 124 Ga.
508, 509, 52 S. E- 621; Baggs v. Funderburke, 11 Ga. App. 173,
74 S. E. 937; Bishop v. Bank, 13 Ga. App. 38, 78 S. E- 947;
Maril v. Boswell, 12 Ga. App. 41, 76 S. E. 773; Underwood
v. Bass, 1 Ga. App. 623, 624, 57 S. E. 953; Hardy v. Boyer,
7 Ga. App. 472, 67 S. E. 205; Carlton v. White, 99 Ga. 384,
27 S. E. 704; Durden v. Royster Co., 158 Ga. 234, 123 S. E-
603.
§ 3557. (§ 2985.) After judgment.— If judg-
ment has been rendered without such proof, the
surety shall give at least ten days notice to his
principal of his intention to apply, at the next
term of the court where the judgment was en-
tered, to make such proofs, and to have the fact
of his suretyship entered of record, together
with an order for the control of such judgment
and execution thereon against the principal, on
payment of the same by him. Act 1850, Cobb,
599.
Person Not Named as Security. — Where one defendant to
a fi. fa., not named as security therein, but claiming to be
such, seeks to control it against a co-defendant, who is set
forth as a security, to force contribution, he must proceed
to obtain the legal control thereof under this section and §
3561. Burke v. Lee, 59 Ga. 165.
Failure to Proceed under Section. — Where one of joint
judgment debtors has paid off the judgment, claiming to
have been only a surety of the other, but without taking
such steps as are required under this section and § 3556 to
have his true relation defined on the record, he is not en-
titled, in a contest exclusively between himself and others
who are judgment creditors of the alleged principal, aris-
ing on a rule for the distribution of money realized from
the sale of property of the latter under another execution,
[971]
§ 3558
RIGHTS OF SURETY AGAINST PRINICPAL
§ 3559
to control the execution so paid by him for the purpose of
competing with other creditors claiming the money. Patter-
son v. Clark, 101 Ga. 214, 28 S. E). 623.
Right After Part Payment.— A surety without paying in
full the joint debt, but upon paying, either before or after
judgment, a portion only thereof, may maintain against a
co-surety, for the purpose of compelling contribution, the
statutory proceeding for having such fact entered of rec-
ord; and where such a proceeding is instituted after judg-
ment it is not essential for the petitioner to show that the
execution issued thereon has been assigned to him. Cooper
v. Chamblee, 114 Ga. 116, 39 S. E- 917.
§ 3558. (§ 2986.) Control of fi. fa.— Any
surety on the original contract, or on stay of
execution, or on appeal, or in any other way, or
the representative of a deceased surety, who
shall have paid off or discharged the judgment
or execution in whole or in part, and shall have
the fact of such payment by him entered on such
execution by the plaintiff or his attorney or the
collecting officer, shall have the control of such
execution and the judgment upon which it is
founded, to the same extent as if he were the
original plaintiff therein, and be subrogated to
all the rights of such plaintiff, for the purpose of
reimbursing himself from his principal. Act
1810, Cobb, 592; Act 1826, Cobb, 594; Act 1831,
Cobb, 595; Act 1815, Cobb, 598.
Cross References. — See, § 6046. See also, §§ 3557, 3559,
and notes thereto; 12 Enc. Dig. 971, 990. As to requirements
in regard to entering of judgment against sureties, see §
5938. As to control of fi. fa. by joint debtors, see § 5971.
As to payment by surety before judgment, see § 3567. As
to contribution between principal and surety, see 3 Enc.
Dig. 528 et seq. As to control of execution by surety, see
5 Enc. Dig. 550.
Applies to Actual Surety Only. — The benefits of this sec-
tion are for an actual surety, who becomes such on the au-
thority of the principal. Therefore, one who is not a surety,
would not be entitled to control a judgment or fi. fa. merely
because she had agreed with the creditor to become such.
Taft v. Larey, 29 Ga. App. 631, 637, 116 S. E- 866.
And, it was held in Hiers v. Exum, 158 Ga. 19, 122 S. E. 784,
that under the circumstances there was no right of subroga-
tion either conventional or at law. There was no right of
subrogation at law, because the legal right of subrogation
arising out of the payment of the debt of another extends
only in favor of a surety for the payment of the debt or in
favor of one who is compelled to pay the debt to protect his
own . right or interest, and at the time of the payment of
the debt the plaintiff had no claim against or lien upon the
property in question.
Applies to Involuntary Payment. — The language, "who
shall have paid off or discharged the judgment," as em-
ployed in this section applies to an involuntary as well as a
voluntary payment. Ezzard v. Bell, 100 Ga. 150, 28 S. E-
28.
Hence, a surety whose property, under an execution against
his principal and himself, has been levied upon and sold in
satisfaction of the sum due the judgment creditor, "pays
off and discharges" the debt of his principal, within the
meaning of this section. Ezzard v. Bell, 100 Ga. 150r 28 S.
E- 28.
Applies to Partner Paying Judgment. — Section 5971 taken
in connection with this section would seem to give the part-
ner paying off the judgment the right to enforce it to its
full amount against the partnership assets. Higdon v. Wil-
liamson, 10 Ga. App 376, 378, 73 S. E. 528.
Entry of Payment. — It is well to note that not only pay-
ment, but' entry of payment on the execution, must be made
before the surety can control the fi. fa. See Cureton v. Cure-
ton, 120 Ga. 559, 565, 48 S. E. 162.
And if entry is not made the surety will not be able to
enforce the contribution against a co-surety provided by §
3561. Cureton v. Cureton, 120 Ga. 559, 48 S. E. 162.
Same — Entry by Justice. — A justice of the peace is a col-
lecting officer as to debts sued in his court, and may make,
upon an execution issued from his court against joint de-
fendants, the entry of payment by one of them, which is
required by this section. Higdon v. Williamson, 10 Ga.
App. 376, 73 S. E. 528.
Same — Entry by Attorney. — Where there was no entry on
the fi. fa. showing its payment by the iudorser, pending a
claim case arising under a levy made for the benefit of such
[ 972 ]
indorser, the attorney for the plaintiff in fi. fa. could make
the entry. Thomason v. Wade, 72 Ga. 160.
Effect of Death of Principal. — Where a judgment was ren-
dered against an intestate in his life-time as principal, and
his surety, which judgment was paid by the surety, since
the death of the intestate, it was held, that such payment,
under the statutes of this state, had relation to the date of
the judgment, so as to enable the surety to remunerate
himself out of the property of his principal. Ray v. Den-
nis, 5 Ga. 357.
When Lien Takes Effect after Control by Surety. — When
a surety takes control of the execution against his princi-
pal, under this section, the lien of the judgment against
his principal in his hands takes effect from the date of
that judgment. Bailey v. Mizell, 4 Ga. 123.
Effect of Surety Buying Judgment at Discount. — If a
surety bought a judgment at a discount, or, after levy of it
upon his property, obtained control of it by compromise at
a price less than the amount apparently due on it, he would
be entitled to enforce it against the principal for only the
amount necessary for reimbursement, after receiving which
the execution would be paid off and discharged. Stanford
v. Connery, 84 Ga. 731, 11 S. E- 507.
Effect of Transfer of Fi. Fa. by Surety. — It was held un-
der this section and §§ 3559 and 3560 that where a surety
pays off a fi. fa. against his principal and himself and takes
a transfer thereof, the debt is extinguished as to him, and
he becomes the creditor of the principal; and if he there-
after transfers the fi. fa. to another, his transferee has no
right to enforce it against his property, but only against
the property held by the principal. Jennings v. National
Bank, 74 Ga. 782.
Right after Payment to Arrest Principal. — The principal
and sureties in a promissory note were sued jointly, and
judgment and fi. fa. went against them jointly. The sure-
ties paid off the fi. fa. and the sheriff made an entry to that
effect on the fi. fa. It was held, that under this section
the sureties had no right to return the fi. fa. and take out
a ca. sa. and arrest the principal. E'am v. Rawson, 21 Ga.
139.
Right of Surety on Bail Bond. — It was held under this sec-
tion that surety on bail bond who pays judgment in trover
is entitled to the protection afforded creditors as against a
conveyance by the debtor to avoid payment of the judg-
ment. Banks v. McCandless, 119 Ga. 793, 799, 47 S. E- 332.
Part Payment Not Sufficient. — That a security has paid a
part of the amount due on a fi. fa., does not give him the
right to control the same so as to reimburse himself. His
rights are secondary to those of the holder of the fi. fa., and
in order to control it without the consent of the latter, he
must comply with the requirements of § 3545 as to tender.
Cherry v. Singleton, 66 Ga. 206.
Judgment against Principal — Execution against Surety. —
See notes to § 3559.
Applied in Camp v. Simmons, 62v Ga. 73; Keeth v. Wel-
chel, 9 Ga. 179.
§ 3559. (§ 2987.) When sued separately.— If
the surety be sued separately from his principal,
on payment by him of the judgment against him
he shall be entitled to control the judgment and
execution against his principal in the same man-
ner as if the judgment and execution were joint;
and if he does not appear as surety in the judg-
ment against him, he may give notice and make
the proof and obtain the control in the same
manner as pointed out in cases of joint judg-
ment. Act 1850, Cobb, 600.
Cross References. — See §§ 3557, 3558, and notes thereto.
As to requirement in regard to entering of judgments
against sureties, see § 5938. As to who are necessary par-
ties, see 12 Enc. Dig. 51.
Independant Remedy for Surety. — This section arid §§
3551, 3552, 3553, and 3560 are remedies to which the surety
can resort for his protection independently of any volun-
tary action by the creditor. McMillan v. Heard Nat. Bank,
19 Ga. App. 148, 154, 91 S. E. 235.
Separate Suit. — A surety may be sued separately from his
principal under this section. Stanfield v. McConnon & Co.,
25 Ga. App. 226, 228, 102 S. E. 908; Amos v. Continental
Trust Co., 22 Ga. App. 348, 95 S. E. 1025; Wesley v. Lewis
Bros., 33 Ga. App. 783, 127 S. E. 660.
The holder of a joint and several note may sue the obligors
jointly or severally, or sue any one of the signers. On
such an obligation he may sue either the principal or the
surety by virtue of this section and § 3553; McKibben v.
Fourth Nat'l Bank, 32 Ga. App. 222, 122 S. E- 891; Bank v.
§ 3560
RIGHTS OF SURETIES AMONG THEMSELVES
§ 3564
Bell, 30 Ga. App. 458, 118 S. E. 439; Cone v. American
Surety Co., 29 Ga. App. 676, 679, 116 S. E- 648; Johnson v.
Georgia, etc., Co., 21 Ga. App. 530, 94 S. E. 850; McMillan
v. Heard Nat. Bank, 19 Ga. App. 148, 91 S. E. 235; Burson
v. Shields, 160 Ga. 723, 730, 129 S. E- 22.
As a surety may be sued separately from his principal,
the fact that service was not perfected upon the principal
debtor to whom the goods were furnished would not affect
the validity of the judgment properly obtained against the
surety. Wesley v. Lewis Bros., 33 Ga. App. 783, 127 S. E-
660.
Judgment against Principal — Execution against Surety. —
In so far as an affidavit of illegality asserts the defense that
the execution did not follow the judgment, since it was is-
sued against the surety alone, while the suit and the judg-
ment were against another as principal and the surety only
as security, and that the execution is therefore void, because
the defendant was thereby deprived of his right to control
the execution against his principal, the affidavit of illegality
is without merit. Assuming that the better practice would
have been — if this ground were sustained by the record in
the proceeding — to have issued a single fi. fa. against both
the principal and the surety, describing them respectively as
such, the fact that a separate fi. fa. was issued against the
defendant here without describing him as a surety would
not deprive him of the rights accorded him by this section
and §§ 3556, 3557, and 3558, against his principal, or render
the execution void. Fowler v. King, 29 Ga. App. 500, 116
S. E. 54.
Pleading. — In view of this section and §§ 3541 and 3553
relative to sureties, the petition in an action against an en-
dorser alleging that petitioner was the owner and holder of
the notes sued on in due course, bona fide and for value,
held to state a cause of action, and not demurrable for fail-
ure to allege defendant's relationship to the notes and to
the other parties to the notes. Meldrim v. Peoples Bank,
28 Ga. App. 294, 111 S. E. 76.
§ 3560. (§ ' 2988.) Payments pending the ac-
tion.— If the surety pay off the debt pending the
action against the principal and himself, or
against the principal alone, such payment shall
operate only to cause the action to proceed for
the benefit of such surety, and the judgment
may be entered in the name of the original plain-
tiff for the use of such surety. Acts 1857, p. 111.
See §§ 3557, 3558, 3560, and notes thereto.
§ 3561. (§ 2989.) Contribution.— All the
foregoing provisions shall apply to cases where
there are more than one surety, so as to enable
a surety discharging a joint debt, in whole or in
part, either pending the action or after joint or
several judgments, to control the same against
his co-sureties for the purpose of compelling
them to contribute their respective shares of the
amount so paid by him. Act 1840, Cobb, 597;
Act 1850, Cobb, 599; Acts 1857, p. 111.
Cross References. — See § 3557 and notes thereto. As to
contribution in cases of joint or joint and several liabilities,
see § 4588. As to contribution before judgment, see § 3561.
As to the requirement in regard to judgment against sure-
ties, see § 5938. As to controlling execution for purpose of
contribution, see 4 Cum. Dig. 87; 3 Enc. Dig. 530; 5 Enc.
Dig. 550.
Accommodation Endorsers Subject to Contribution. — See §
3541, and notes thereto.
Entry. — A surety who does not have any entry of pay-
ment endorsed on the fi. fa. as required by § 3558, is not
equitably subrogated to the rights of the plaintiff in the
judgment so as to enforce contribution against a co-surety.
Cureton v. Cureton, 120 Ga. 559, 48 S. E. 162.
Person Not Named as Security. — See notes to § 3557.
§ 3562. (§ 2990.) Control by indorser.— Ev-
ery indorser who shall pay off and discharge the
debt on which he is indorser, either pending the
action or after judgment, whether the judgment
be joint against the principal and all the indors-
ers or several against such, shall be entitled to
control the judgment and execution founded
thereon against the principal and all prior in-
dorsers, in the same manner, upon the same
proof, and under the same circumstances, as has
been herein provided in the case of sureties; and
if such indorser shall collect the same of a prior
indorser, such prior indorser shall have the same
control of the judgment or judgments against
the principal, or any indorser prior to him. Act
1839, Cobb, 596; Act 1850, Cobb, GOO; Act 1845,
Cobb, 598.
As to rights of parties making payment, see 2 Enc. Dig.
452; 5 Cum. Dig. 721; 5 Enc. Dig. 550.
Former Acts Applied to Bankable Instruments Only. —
Neither the act of 1839, nor 1845, (from which this section
was derived) passed for the relief of endorsers, give the con-
trol of executions to endorsers who have paid off the same
against prior endorsers, except such executions as have is-
sued on judgments, founded on bankable instruments. Evans
v. Rogers, 1 Ga. 463.
Must Be Actual Endorser. — An accommodation indorser
agreed with creditor to become surety for all apparent
makers of note, where those signing as surety did not know
of, or consent to, such relation, she could not control fi. fa.,
under this section, by reason of her agreement with the
creditor. See Taff v. Earey, 29 Ga. App. 631, 116 S. E. 866.
Meaning of "Shall Pay Off or Discharge." — It is fair to
presume, that when the codifiers used the expression "shall
pay off and discharge" in this section, they intended that
those words should have the same significance as "compelled
to pay." Ezzard v. . Bell, 100 Ga. 150, 155, 28 S. E- 28. But,
the section applies to involuntary payment as well as volun-
tary. Ezzard v. Bell, 100 Ga. 150, 28 S. E. 28; Stiles v.
Eastman, 1 Ga. 205.
Payment Bars Further Prosecution. — Pending suit against
a principal and endorser jointly, the indorser paid the note.
It was held, that this payment was a bar to the further
prosecution of the suit, even though the further prosecu-
tion of it might be at the instance, and for the benefit of
the endorser. Griffin v. Hampton, 21 Ga. 198.
The case of Griffin v. Hampton, supra, was decided in
1857 under Cobbs Digest 596-598, from which acts this sec-
tion was later codified. The acts contained in Cobbs Digest
are confined to cases in which the payment by the endorser
or surety was made after judgment. When this section was
codified in the Code of 1863 it was extended to payment by
the endorser "either pending the action or after judgment."
Ed. Note.
Entry. — It was held under this section it having been dis-
covered that there was no entry on the fi. fa. showing its
payment by the indorser, pending a claim case arising under
a levy made for the benefit of such indorser, the attorney
for the plaintiff in fi. fa. could then make the entry.
Thomason v. Wade, 72 Ga. 160.
§ 3563. (§ 2991.) Bona fide purchasers pro-
tected.— When the surety does not appear to be
such in the judgment and execution, the lien of
such judgment, when controlled by the surety,
shall not interfere with bona fide purchasers
without notice from the principal^ whose rights
were vested before the order giving control to
the surety was granted.
ARTICLE 4.
Rights of Sureties Among Themselves.
§ 3564. (§ 2992.) Right of contribution.—
Where several are sureties for the same princi-
pal, for the same sum of money, either by one
or by distinct instruments, ■ and one pays more
than an equal share of the sum, he may compel
contribution from his co-sureties. If one of the
co-sureties be insolvent, the deficiency in his
share must be borne equally by the solvent sure-
ties. Act 1840, Cobb, 597.
Cross References. — See §§ 45S8, 3561. As to requirement
in regard to judgment against sureties and endorsers, see
§ 5938. As to contribution among sureties, see 4 Cum. Dig.
87; 3 Enc. Dig. 529; 10 Cum. Dig. 730.
Doctrine Limited to Co-sureties. — The doctrine of contribu-
tion, under this section, as applied to sureties, is limited
to co-sureties. Snow v. Brown, 100 Ga. 117, 119, 28 S. E. 77.
Common Law Rule.— This section is but a codification of
[ 973 ]
§ 3565
RIGHTS OF SURETIES AS TO THIRD PERSONS
§ 3567
this principle of the common law, and is not of statutory
origin. Bigby v. Douglas, 123 Ga. 635, 51 S. E. 606.
Same — Modification. — The only amendment or modification
of this common law rule, governing the amount which each
of the co-sureties must contribute to the one who has paid
more than his equal share of the indebtedness, is found in
the last sentence of this section. Higdon v. Bell, 25 Ga.
App. 54, 102 S. E- 546.
A surety upon a guardian's bond, after obtaining his
discharge under § 3052, although liable to the ward for any
past default of the guardian, is not liable to a surety of the
guardian upon a second bond who has answered for that de-
fault in consequence of his own statutory liability upon the
second bond. This liability of the second surety is primary,
as between himself and the first surety, and he has no
right of contribution from the latter. Tittle v. Bennett, . 94
Ga. 405, 21 S. E- 62; Snow v. Brown, 100 Ga. 117, 28 S. E-
77.
The Parol agreement of one surety was not sufficient to
bind his co-surety as he was entitled to a valid binding
contract on which he could require contribution. English
v. Bank, 76 Ga. 538.
Limitations. — It was held under this section that the surety
entitled to contribution may sue his co-sureties upon the
written evidence of indebtedness (in which case the period
of limitation would be that applicable to instruments of its
class), or upon the implied contract raised by law in favor
of one surety against his co-sureties for contribution (in
which instance the period of limitation would be that of an
implied assumpsit). Bigby v. Douglas, 123 Ga. 635, 51 S.
E. 606. See also, Train v. Emerson, 141* Ga. 95, 80 S. E- 554.
Right to Sue Jointly.— See note of Train v. Emerson, 141
Ga. 95, 80 S. E. 554, under § 3567.
§ 3565. (§ 2993.) Interest thereon. — The sum
recovered as contribution bears interest from
the time it was paid by the surety, and shall be
deemed and held a liquidated demand.
As to interest on liquidated demands, see § 3434.
§ 3566. (§ 2994.) Duty to account. — A surety
suing for contribution must first account for all
money or other thing received from the princi-
pal to indemnify him against loss; and if he has
paid the entire debt, he may compel his co-
surety to transfer to him any mortgage or other
security taken from the principal for the protec-
tion of such co-surety, by relieving him of all
liability for contribution.
ARTICLE 5.
Rights of Sureties as to Third Persons.
§ 3567. (§ 2995.) Subrogation.— A surety
who has paid the debt of his principal is subro-
gated, both at law and in equity, to all the rights
of the creditor, and, in a controversy with other
creditors, ranks in dignity the same as the cred-
itor whose claim he paid.
Cross References. — For full treatment, see 10 Cum. Dig.
674, 12 Enc. Dig. 47. As to nature and extent of rights ac-
quired by subrogation, see, 11 Enc. Dig. 969 et seq. As to
who will be subrogated, see 10 Cum. Dig. 675; 11 Enc. Dig.
971. As to loss of right of subrogation as discharging
surety, see 12 Enc. Dig. 38. As to subrogation between
creditors, see § 6038, and notes thereto.
Editor's Note.— There are two classes of subrogation of
which the law takes cognizance, namely, legal and conven-
tional. Legal subrogation arises by operation of law, where
one having a liability, a right, or a fiduciary relation in the
premises pays a debt due to another, under such circum-
stances that he is in equity entitled to the security or obli-
gation held by the creditor when he has paid. Conventional
subrogation, on the other hand, depends upon contract, and
occurs where one having no interest pays the debt of an-
other, and by agreement is entitled to the rights of the
creditor. See Ervin v. Brooks, 159 Ga. 683, 685, 126 S. E.
777.
It will be seen that this section is merely an instance of
legal subrogation, incorporated in the code. See Fender v.
Fender, 30 Ga. App. 319, 320, 117 S. E- 676. See also, Irby
v. Livingston, 81 Ga. 281. In Hull v. Myers, 90 Ga. 674, 683,
16 S. E- 653, it is stated that what this section did was to
[ 974 ]
break down the exclusiveness of equity, so as to make
equity and law concurrent and co-equal with respect to this
subject-matter. And in a very early case, (Curan v. Col-
bert, 3 Ga. 239, 251) it was held that as this doctrine ex-
isted by general law prior to its adoption in the code, only
a cumulative remedy is afforded.
The exact effect this section has upon the rights of sure-
ties, has been stated in the following language: "Since the
adoption of the code, not only is he entitled to maintain his
suit in equity against his principal upon the implied prom-
ise of indemnification, but by virtue of this section and §
3568 he has become legally subrogated to the rights of the
creditor so as to permit him to sue on the original in-
debtedness." See Dabney v. Brigman Motors Co., 32 Ga.
App. 652, 654, 124 S. E. 370; Fender v. Fender, 30 Ga. App.
319, 320, 117 S. E. 670.
In any event the question, whether this section and §
3568 serve to convert the right of substitution from an
equitable to a legal right, becomes quite immaterial since
the enactment of the uniform procedure act, which permits
the enforcement of equitable and legal rights in the same
action in a court having jurisdiction to administer both.
See Train v. Emerson, 141 Ga. 95, 97, 80 S. E. 554.
Not Dependent of Judicial Proceedings. — As soon as the
debt is paid by the surety, he is subrogated by virtue of
this section to all the rights of the creditor by vigor of the
law, and not dependent upon any judicial proceeding. Fender
v. Fender, 30 Ga. App. 319, 320, 117 S. E- 676; Sherling v.
Long, 122 Ga. 797, 799, 50 S. E. 935.
Renunciation of Right by Surety. — The surety may pay
up the debt, and be subrogated to the rights of the creditor
against his principal; but he is not bound to do this. Curan
v. Colbert, 3 Ga. 239, 251. And the right to subrogation may
be renounced by the action of the surety. See Flannagan
v. Forrest, 94 Ga. 685, 21 S. E. 712.
Where one Surety Has Paid More than Pro Rata. — Where
accommodation indorsers have paid off more than their pro
rata share of a note one of the indorsers subrogated under
this section can not sue severally on the note for his pro
rata share of the contribution to which he and his co-owners
of the note are entitled. Hull v. Myers, 90 Ga. 674, 16 S.
E. 653.
Successive Sureties — Exception to General Rule. — An ex-
ception to the general rule, laid down in this section, exists
where in a legal proceeding there are successive sureties.
In such a case the last surety is regarded as the primary
one; and if he pays the debt of his principal, he has no right
of subrogation against the preceding sureties. This is true
whether the dispute is between successive sureties in the
legal proceeding itself, or between the surety given in the
legal proceeding and the surety in the original transaction
upon which the legal proceeding is based. National Surety
Co. v. White, 21 Ga. App. 471, 94 S. E. 589. See § 5008.
Right to Sue Jointly for Contribution. — Three of four sure-
ties, who have paid the debt of their principal, may jointly
sue their co-surety for contribution, founding their action
upon the obligation containing the contract of suretyship,
and will have the same time within which to bring suit as
the creditor would have had on the same instrument. Train
v. Emerson, 141 Ga. 95, 80 S. E. 554; Hull v. Myers, 90 Ga.
684, 16 S. E. 653.
A joint obligor is not like a surety subrogated to the
rights of the creditor under this section, but he may en-
force contribution on the implied contract on his part to
share the common burden. Sherling v. Long, 122 Ga. 797,
50 S. E. 935.
Wife of Grantor in Security Deed Paying Debt Not Sub-
rogated.— It was held under this section and §§ 3558 and
3568 where the wife of the grantor in a security deed paid
a debt secured by another deed she was not entitled to be
subrogated to the grantee's rights. Heirs v. Exum, 158 Ga.
19, 122 S. E. 784.
Effect of "Paid" Being Written Across Face of Note. —
It was held under this section and § 3568 that the fact that
when a note was paid by the surety, and it, with the mort-
gage securing it, was surrendered by the creditor to him,
the word "Paid," dated and signed, was written across the
face of the note and the mortgage, amounts to nothing more
than a receipt for the money by the creditor to the surety,
and does not operate legally to extinguish the rights of the
surety against the principal, or against other creditors of
the principal contending for the mortgaged property, unless
it be made to appear that it was the intent that such pay-
ment by the surety should operate to satisfy and extinguish
the instruments; especially would this be true where it does
not appear that the contending creditor had knowledge of
such entry. Dabney v. Brigman Motors Co., 32 Ga. App.
652, 124 S v "n
Posses: ijn < gatory Paper. — This section clothes the
surety with al title to the security which he pays
off. . . ubrogation the paper becomes his prop-
§ 3568
PRINCIPAL AND AGENT
§ 3570
erty, and the creditor has no right to withhold it from his
possession. Dabney v. Brigman Motors Co., 32 Ga. App.
652, 654, 124 S. E. 370.
Not Applicable After Mortgage Extinguished. — It was held
that the rights of subrogation given the surety by this sec-
tion can not be enjoyed where the creditor who by the same
contract has personal security and a mortgage upon per-
sonal property, has after maturity of the debt received the
mortgaged property by contract with the principal debtor,
in part payment, at more than its full value at the time
he received it. Marshall v. Dixon, 82 Ga. 435, 9 S. E. 167.
Venue.— A creditor holding a promissory note may sue
the maker and sureties thereon in the county of the resi-
dence of either, and a surety paying the note succeeds to
this right, and may upon the note either in the county of
the residence of the maker or in that of the residence of a
co-surety, at his option, as he is subrogated in law and equity
to all the rights of the creditor. Anderson v. Armistead, 18
Ga. App. 387, 89 S. E. 525.
Applied in Eumpkin v. Mills, 4 Ga. 343; Foster v. Whitaker,
12 Ga. 57; Bank v. Fidelity, Co., 129 Ga. 126, 58 S. E. 867;
Travis v. Sams, 23 Ga. App. 713, 99 S. E. 239.
§ 3568. (§ 2996.) As to securities. — He is en-
titled, also, to be substituted in place of the
creditor as to all securities held by him for the
payment of the debt.
See §§ 3544, 3567, and notes thereto. As to who will be
subrogated, see 10 Cum. Dig. 675, 11 Enc. Dig. 971.
When Surety Subrogated. — As soon as a debt is paid, the
surety paying it is subrogated to the creditor's rights and
to any and all remedies for the enforcement thereof, for his
own reimbursement and is substituted in place of the creditor
to all securities held by the latter for the payment of the
debt. Hull v. Myers, 90 Ga. 674, 682, 16 S. E. 653. But a
pro tanto assignment or subrogation will not be made upon
payment of part of the debt. All of the debt must be paid
before there is any subrogation. Erwin v. Brooke, 159 Ga.
683, 687, 126 S. E. 777.
Same — By Whom Payment Made. — To be substituted un-
der this section for the creditor it is necessary only that the
payment of the debt should be made by a surety, it matters
not whether he be a maker, indorser, drawer, acceptor, or
what not. Hull v. Myers, 90 Ga. 674, 684, 16 S. E. 653.
"All securities" as used in this section will include the
identical security, the judgment, promissory note, bill, bond
or other contractual instrument, upon which the surety and
his co-sureties are bound with and for the principal debtor.
Though there is a conflict on the question, the better opinion
is that the primary and original security, as well as all
others, was embraced in the equitable right of subrogation
as it existed prior to the code, irrespective of any statute.
Hull v. Myers, 90 Ga. 674, 682, 16 S. E- 653.
Effect of Taking Charge of Property. — Where a creditor
by promissory note signed by three persons, two of whom
were sureties, having as further security for his debt a
mortgage upon personal property, takes charge of such per-
sonalty, the same being sufficient in value of discharge the
debt, and fails to appropriate it to a payment of the note,
the sureties will be discharged from liability thereon. Bar-
rett v. Bass Bros. & Co., 105 Ga. 421, 31 S. E- 435.
Stipulations — Default — When Mortgage May Be Fore-
closed.—See Jones v. Morton, 9 Ga. App. 333, 71 S. E. 687.
CHAPTER 15.
Of Principal and Agent.
ARTICLE 1.
Relations of Principal and Agent Among
Themselves.
§ 3569. (§ 2997.) How it arises.— The rela-
tion of principal and agent arises wherever one
person, expressly or by implication, authorize
another to act for him, or subsequently^ ratifies
the acts of another in his behalf.
For full treatment of principal and agent, see 1 Cum.
Dig. 261, et seq.; 1 Enc. Dig. 208, et seq. See 1 Cum.
Dig. 264, 1 Enc. Dig. 212.
Editor's Note. — This section enumerates three methods
by which the relation of principal and agent may be cre-
ated, namely, by express authorization, by implied au-
thorization and by ratification.
A great proportion of agency cases develop, not from
the express authorization, but from the acts and conduct
of parties. It may be stated generally, that when one
with full knowledge allows another to represent him as
agent and remains silent when occasion arises for him
to speak, he may be held as principal. See 1 Am. & Eng.
Ency. L,aw, p. 960. In 2 C. J. 436, in discussing implied
agency, it is said: "It may be implied from a single trans-
action, but it is more readily inferable from a series of
transactions. An implied agency must be based upon facts,
and facts for which the principal is responsible, and upon
a natural and reasonable, but not a strained, construction
of those facts."
For full treatment of the creation of the relation, see 1
Cum. Dig. 264, 1 Enc. Dig. 212.
By Implication — Parent and Child. — It is well established
that the relation of principal and agent must appear in or-
der to create liability on the father for the tort of the
minor child. Lacey v. Forehand, 27 Ga. App. 344, 108
S. E. 247. This case, and Griffin v. Russell, 144 Ga. 275,
87 S. E. 10, contain exhaustive discussions of this sub-
ject.— Ed. Note.
Same— Husband and Wife.— See §§ 2996-2998. For full
treatment, see 7 Cum. Dig. 67, 7 Enc. Dig. 171.
Proof from Circumstances. — Proof of agency and of the
nature of the agency may be made by showing circum-
stances, apparent relations, and the conduct of the par-
ties; for the relation of principal and agent arises when
one, by implication, authorizes another to act for him, un-
der this section. Martin v. Bridges, 18 Ga. App. 24, 88
S. E- 747. For full treatment of proof of agency, see 1
Cum. Dig. 325, 1 Enc. Dig. 288.
By Ratification. — An unauthorized act of an agent, when
subsequently ratified, will bind the principal. Penn Mu-
tual Life Ins. Co. v. Blount, 33 Ga. App. 642, 127 S. E.
892.
But, ratification of a particular act is coextensive with
the act, and only makes the person who performed the act
a special agent pro hac vice. Bank v. Rawls, 7 Ga. 191,
200.
For illustrations of agency by ratification, see 1 Cum.
Dig. 265; 1 Enc. Dig. 212.
Same — Right to Establish Authority or Show Ratifica-
tion.— See § 3578 and notes thereto.
Same — Effect of Ratification Generally. — See § 3591, and
notes thereto.
Charging Section. — There being evidence sufficient to
warrant the jury in finding that the alleged agent had ex-
press authority from the plaintiff to collect the note sued
upon, and also that the latter had ratified partial collec-
tions thereon made by the former, the court did not err
in giving in charge to the jury this section. National Bank
of Athens v. Burt, 98 Ga. 380, 25 S. E. 502.
Illustrations. — A landlord's agent having authority gen-
erally to look after the landlord's farming business in a
certain community, whose conduct in respect to his deal-
ings with one of the landlord's tenants will, in the lan-
guage of the landlord, be "satisfactory" to him, is an agent
under this section having such general authority that it
may be inferred that he possesses authority to bind the
landlord in the purchase oi supplies such as fertilizer fur-
nished to the tenant which is necessary in the farming op-
erations. Jolly v. Chattahoochee Fertilizer Co., 28 Ga.
App. 194, 110 S. E. 639.
Where landowners entered into a contract of sale with
a prospective purchaser, conditioned upon furnishing sat-
isfactory title, designating a certain firm of brokers as the
owners' agent, and stipulating that, in the event the sale
was consummated, the purchaser would pay such brokers'
commission, the mere fact that the purchaser undertook to
pay such commission did not of itself alone create the re-
lation of principal and agent between the purchaser and
the brokers, under this section and § 3574. Richardson v.
DuPree, 32 Ga. App. 3, 5, 122 S. E. 707.
Applied negatively in Burkhalter v. Ford Motor Co., 29
Ga. App. 592, 599, 116 S. E. 333.
§ 3570. (§ 2998.) Words of description.— An
instrument signed by one as agent, trustee,
guardian, administrator, executor, or the like,
without more, is the individual undertaking of
the maker, such words being generally words of
description.
Cross References. — For full treatment of this subject, see
1 Cum. Dig. 313 et seq.; 1 Enc. Dig. 272 et seq. As to
bills, notes and checks, see 2 Cum. Dig. 858; sales, 10 Cum.
Dig. 101, 11 Enc. Dig. 372. As to necessity of form, see
§ 3594. As to when agent has a right of action, see § 3609.
Editor's Note. — The doctrine enunciated in this section
is based upon the decision in the case of Crusselle v. Chas-
[975]
3570
PRINCIPAL AND AGENT
§ 3571
tain, 76 Ga. 840. This section first appeared in the Code of
1895, and the case cited above was decided in 1886. The
decision of the case is almost identical with this section.
General Rule.— This section lays down the general rule.
Wadley v. Oertel, 140 Ga. 326, 332, 78 S. E- 912.
Section Not Applicable Unless Instrument Executed. —
This section is not applicable where an administrator of an
estate deposits funds of the estate (which were lost by fail-
ure of the bank), but where there was no instrument exe-
cuted by the agent. Gatewood v. Furlow, 19 Ga. App. 74,
90 S. E. 973.
Rule of Descriptio Personae. — The mere addition of the
word "agent" or "agent for," etc., to the signature are in-
sufficient to bind the principal. And where merely de-
scriptive these words are to be considered as surplusage.
Under the rule of this section, the contract is that of the
maker. See cases cited in 1 Cum. Dig. 313, 1 Enc. Dig.
272.
Same — Effect of N. I. L. — The N. I. L. does not change
the rule of this section materially, see §§ 4294 (19), (20) and
notes.
Exception to the Rule. — But where in the body or on the
face of the instrument the agency is distinctly specified and
the principal indicated, and the contract is substantially in
the name of such principal, the latter and not the agent is
liable, though the instrument be signed by the agent only,
provided of course the agent has authority to bind the prin-
cipal. See Rawlings v. Robson, 70 Ga. 595; Bank v. Ham-
ilton, 78 Ga. 312; Oiler v. Spradley, 39 Ga. 35; Martin v.
Lamb & Co., 77 Ga. 252, 3 S. E- 10; Wadley v. Oertel, 140
Ga. 326, 78 S. E. 912; Ocellar R. Co. v. Morton, 13 Ga.
App. 504, 7.9 S. E. 480.
Illustrations of Rule. — When an application to establish
and lay out a public road is signed by a named person, with
the letters, "Agt." after his name, without more, such in-
strument is his individual application for such road. Com-
missioners v. Curry, 154 Ga. 378, 114 S. E- 341.
One signing, "J. L. De Give, President" was apparently
individually liable under this section. Candler v. De Give,
133 Ga. 486, 487, 66 S. E. 244.
An execution against S. J. W. as agent for Mrs. M. W.
is against S. J. W. alone, the words, "as agent for," etc.,
being merely descriptio personae under this section. Wynn
v. Irvine's Georgia Music House, 109 Ga. 287, 34 S. E-
582.
The abbreviations and letters, "Treas.," and "V. P.,"
following the names respectively of two indorsers on a
promissory note, are mere words of description, and the ob-
ligation incurred by such indorsers is . personal under this
section. Morris v. Reed, 14 Ga. App. 729, 82 S. E. 314.
A suit against "A., administrator," on a promissory note
containing the words "I promise to pay," and signed "B.
Estate A., administrator (L. S.)," is a suit against A. as
an individual under this section. Glisson v. Weil & Co.,
117 Ga. 842, 45 S. E. 221.
A suit by one with the word "administrator," or "exec-
utor," added to his name, especially on a contract made by
him, will ordinarily be treated as being his individual suit
under this section; and likewise when the, suit is "against
him. Wadley v. Oertel, 140 Ga. 326, 330,- 78 S. E. 912.
It is clear that under this section, if "F." had signed
an instrument as "T. M. F., adm'r" it would have been
his individual undertaking. Gatewood v. Furlow, 19 Ga.
App. 74, 76, 90 S. E. 973.
An executory contract between "F. C. M., administrator
of the estate df E. P. M." and H., was an agreement by
F. C. M. in his representative capacity, under § 3594. Mil-
ler v. Hines, 145 Ga. 616, 89 S. E. 689.
A certiorari bond payable on its face to a named in-
dividual, followed by the word "administrator" which fails
within itself to furnish the means whereby the actual prin-
cipal for whose benefit the. bond is executed can be ascer-
tained with absolute and legal certainty, amounts to nothing
more than an undertaking in favor of the named individ-
ual, and the word "administratorv is to be taken merely as
descriptio personae under this section. Metropolitan Life
Ins. Co. v. Monroe, 26 Ga. App. 332, 106 S. E. 209.
The legal title to bank stock purchased by and issued* to
W., "guardian," was prima facie in him individually under
this section, and, on his death descended to his personal rep-
resentative; and his successor in the trust had no right,
under the facts of this case, to recover from the bank
money paid for the stock. Williams v. Bank, 22 Ga. 656, 97
S. E. 249.
Endorsed on a note and mortgage were several names,
the last of which was "H. A. Burge with Power of Attor-
ney." The power of attorney is not included in the rec-
ord. At most this could only indicate an ordinary individ-
ual endorsement. Hastey v. Roberts, 149 Ga. 479, 100 S.
E. 569.
T9
Prima facie a judgment in favor of E. J. D., executor of
M. G., is his individual property under this section, but
this presumption may be removed by slight evidence tend-
ing to show that he holds the same in trust for the estate.
Dozier v. McWhorter, 117 Ga. 786, 45 S. E. 61.
Where a mortgage on realty was signed "Trustees North
Ga. Col. School (Seal). H. A. Burge, Cor. Sect. (Seal),"
it was erroneous, to admit the same in evidence on the trial
of a claim to the property, over timely objection that "there
was no evidence shown where H. A. Burge had any author-
ity to sign any mortgage," the evidence failing to disclose
any such authority. Hastey v. Roberts, 149 Ga. 479, 100
S. E. 569. .
Declaration Amendable. — A declaration alleging that the
contract, the breach of which is the wrong complained of,
was made by the defendant as agent, without more, is
amendable by striking the word "agent" therefrom. Such
contract is the individual undertaking of the maker under
this section. Hearn v. Gower, 1 Ga. App. 265, 57 S. E-
916.
§ 3571. (§ 2999.) What may be done by
agent. — Whatever one may do himself may be
done by an agent, except such personal trusts in
which special confidence is placed on the skill,
discretion, or judgment of the person called in
to act; so an agent may not delegate his author-
ity to another, unless specially empowered to do
so.
Cross References. — As to express and implied authority,
see 1 Cum. Dig. 285, et seq. ; 1 Enc. Dig. 244, 250. See
also, Evidence, 5 Cum. Dig. 570. And see, § 3569, and
notes thereto.
Personal Trusts within Section. — The "personal trusts"
referred to in this section are those arising out of a fidu-
ciary relation such as the relation between principal and
agent, and the like. Council v. Teal, 122 Ga. 61, 64, 49
S. E. 806.
In Adair v. Smith, 23 Ga. App. 290, 98 S. E- 224, the
test as to whether a contract involves a relation of per-
sonal confidence, is said to be whether the party confer-
ring the rights must necessarily have intended them to.be
exercised only by him upon whom they were actually con-
ferred.
To contract to drill an artesian well does not involve any
personal trust, under this section any more than to con-
tract to dig a ditch or to erect a building; and in the ab-
sence of a stipulation to the contrary, the contractor may
perform his contract obligations through agents, being ac-
countable, of course, for the manner in which they prose-
cute the work. Council v. Teal, 122 Ga. 61, 64, 49 S. E.
806.
Waiver of Personal Element. — Even though the subject-
matter of a contract might of itseM in a sense indicate that
it was intended to be personal in its nature, the parties
thereto can nevertheless by the express terms of the agree-
ment manifest a different purpose and intent. Adair v.
Smith, 23 Ga. App. 290, 98 S. E. 224.
Choses in Action. — This section is a recognized excep-
tion the rule stated in §§ 3653 and 3654, namely, that all
choses in action arising upon contract and involving prop-
erty rights may be assigned. Adair v. Smith, 23 Ga. App.
290, 98 S. E. 224.
An admission made through an agent, during the ex-
istence and in pursuance of his power, is no less evidence
against the principal than if made by the principal in per-
son, under this section and § 5779. Hester Marble Co. v.
Walton, 22 Ga. App. 433, 96 S. E. 269. But statements
made by an agent are not binding on the principal unless
made within the scope of business, see 26 A. L. R. 1505.
And see for full treatment, § 3606, and notes thereto.
Entry of Payment. — If payee of the note could make the
entry of credit, and that act bound him, he could under
this section make it by an agent and bind himself thereby.
Green v. Juhan, 66 Ga. 531, 534.
Delegation of Power by Agent in General. — The in-
hibition against an agent delegating his power as contained
in this section is only declaratory of the common law, and
is but another form of expression for the maxim "delegata
porestas non potest delegari." Springfield Fire, etc., Ins.
Co. v. Price, 132 Ga. 687, 692, 64 S. E. 1074.
This section has no application to the contractual rela-
tion existing between the parties to an agreement under
the terms of which one of them obligates himseljf to ac-
complish a given task, not alone or in person, but through
workmen in his employ. Council v. Teal, 122 Ga. 61, 64,
49 S. E. 806.
An agent may not by indirection delegate his authority
to operate the farms to another, unless specially empow-
76 I
§ 3572
PRINCIPAL AND AGENT
§ 3574
ered to do so, under this section. Hargrove v. Armour
Fertilizer Works, 31 Ga. App. 465, 468, 120 S. E. 800.
Insurance Companies. — An agent of an insurance com-
pany, fully authorized to make out and issue policies of in-
surance, has power to employ clerks in the ordinary busi-
ness of the agency under this section. Springfield Fire,
etc., Ins. Co. v. Price, 132 Ga. 687, 64 S. F. 1074.
Same — Waiving Prepayment of Premiums. — An insurance
company by its proper officers may waive a condition re-
quiring prepayment of the premium, and whatever the
company might do itself it would be permitted to do by an
agent. Penn Mutual Life Insurance Co. v. Blount, 33 Ga.
App. 642, 127 S. F. 892.
Subagents for Railroads and Telegraph Companies. —
The rule laid down in the case of Central of Georgia Ry.
Co. v. Price, 106 Ga. 176, 32 S. F. 77, decided under this
section that a conductor would have no authority to em-
ploy a subagent to act for the railroad company in caring
for a passenger, would certainly apply equally to a tele-
graph operator in the service of such company. Western
& Atl. R. Co. v. Jackson, 21 Ga. App. 50, 61, 93' S. F.
547.
Assignment of Position as Tax Collector. — An agreement
between the state and R. whereby he was appointed spe-
cial tax investigator and was to receive commission on
such back and valorem taxes due the state as should be
collected through his efforts could not have been assigned
under this section. Roberts v. Allen, 31 Ga. App. 660, 670,
122 S. E. 86.
§ 3572. (§ 3000.) Executors, etc., may con-
vey by attorney in fact. — Executors, adminis-
trators, guardians, and trustees are authorized to
sell and convey property by attorneys in fact, in
all cases where they may lawfully sell and con-
vey in person. , Acts 1855-6, p. 148.
Cross References — See 1 Fnc. Dig. 213. As to appoint-
ment of attorney by guardian, see § 3075. As to right to
submit matters in controversy to arbitration, see § 5020.
As to right of administrator to compromise or to submit
to arbitration, see § 4004. As to the title, rights, and lia-
bilities of purchasers, see 5 Cum. Dig. 850; 5 Fnc. Dig.
771.
Necessity for Writing.— It would seem that since this
section was enacted, if an executor or administrator desires
to sell the land o*f the estate by an agent, the agency must
be created in writing, as that is the usual mode of appoint-
ing attorneys in fact. Scales v. Chambers, 113 Ga. 92'0,
922, 39 S. F- 396. It was not necessary to decide the ques-
tion in this case, however, the dictum seems to follow the
general rule, see 1 C. J. 452. And see § 3574.
A mere crier employed by an administrator does not
control the sale but is simply the mouthpiece of the lat-
ter, and is in no sense the agent or attorney in fact of the
administrator under this section and can not, over his pro-
test, complete the sale. Scales v. Chambers, 113 Ga. 920,
39 S. F. 396.
Presumption that Power Properly Exercised. — It was
held under this section that where a testator gave his ex-
'ecutors power to sell property, such power will be held to
have been properly exercised, in the absence of proof to
the contrary. Webster v. Black, 142 Ga. 806, 83 S. F. 941.
§ 3573. (§ 3001.) Who may be agent.— Any
person may be appointed an agent who is of
sound mind; so a principal is bound by the acts
of his infant agent; but a feme covert can not be
an agent for another than her husband except by
his consent, in which case he is bound by her
acts.
Cross References. — As to liability of husband for neces-
saries of wife, see §§ 2988, 2996. As to right of wife to
act as attorney and agent of husband, see § 2998. As to
who are agents, see 1 Cum. Dig. 266; 1 Fnc. Dig. 214.
Insane persons are generally declared incompetent to be
agents. Central of Georgia Railway Co. v. Hall, 124 Ga.
322, 336, 52 S. F. 679.
§ 3574. (§ 3002.) Agency created; how;
agents of corporations. — The act creating the
agency must be executed with the same formal-
ity (and need have no more) as the law pre-
scribes for the execution of the act for which the
agency is created. A corporation may create an
[9
agent in its usual mode of transacting business,
and without its corporate seal.
Cross References. — For full treatment of this subject,
see 1 Cum. Dig. 296 et seq.; 1 Fnc. Dig. 259 et seq. See also
10 Cum. Dig. 157; 11 Fnc. Dig. 402. As to agency of wife
in respect to necessaries, see § 2996. As to right of agent
tf) do any act authorized under Code, see § 3607.
Editor's Note — Necessity for Written Authority — Statute
of Frauds. — It has been held under this section that the
memorandum required by the statute of frauds may be ex-
ecuted by an agent whose authority is derived from verbal
appointment. This decision at first glance seems to be in
direct conflict with this section. The court, however, rea-
sons that as the section is a mere codification of the com-
mon law principle and that as there was no intention to
alter the common law, the law remains unchanged. There-
fore, construing this section in the light of its common
law origin, authority to execute written instruments may
be created by parol, for such was the common law rule.
See Brandon v. Pritchett, 126 Ga. 286, 55 S. E. 241. Note
that this case contains a strong dissenting opinion by At-
kinson, J. See also, McNamara v. Georgia Cotton Co.,
10 Ga. App. 669, 73' S. F. 1092; Hirsh v. Beverley, 125 Ga.
657, 54 S. F. 678.
The rule in Georgia seems to be the majority rule (See
20 Cyc. 234), decisions under similar state statutes being
in line with Brandon v. Pritchett. See 1 C. J. 453.
It must be noted that the decision in Brandon v. Pritch-
ett, apparently overrules Duke v. Culpepper, 72 Ga. 842,
845, where it was held that authority to execute a mort-
gage must be in writing.
Sealed Instruments. — There is no conflict in the decisions
of the supreme court to the effect that a power to execute
an instrument under seal must be conferred by an instru-
ment under seal. Harris v. Woodward, 144 Ga. 211, 86 S.
F. 1097; Overman v. Atkinson, 102 Ga. 750, 29 S. E-
758; Neely & Company v. Stevens, 138 Ga. 305, 75 S. E.
159; Hayes v. Atlanta, 1 Ga. App. 25, 57 S. E. 1087; Pol-
lard & Co. v. Gibbs, 55 Ga. 45, 47; McCalla v. American
Freehold, etc.,' Co., 90 Ga. 113, 15 S. E. 687.
Nor can an unauthorized conveyance of land be effectu-
ally ratified except by a writing under seal. McCalla v.
American, etc., Co., 90 Ga. 113, 15 S. E. 687.
For illustrative cases, see 1 Cum. Dig. 298; 1 Enc. Dig.
259.
Same — Changing Note to Sealed Instruments. — The
changing of an ordinary promissory note into a sealed in-
strument is the making of a sealed instrument, and the au-
thority to make this radical change in the paper must be
evidenced in the same way that authority to make a sealed
instrument in the first instance would have to be shown.
Thomason v. Wilson, 127 Ga. 141, 143, 56 S. E. 302.
A contract for future delivery of cotton, signed by one
"for" the principal, was held to be rendered binding by
subsequent parol ratification. Wesley v. Boyd, 10 Ga. App.
9, 72 S. E. 514.
A contract whereby mortgagor authorized to convey
mortgaged property by agreement between him and the
mortgagee is not a power of attorney to the mortgagor to
sell land of which the title is in the mortgagee, but only
the consent of a lien holder to the release of his lien in
case a sale is made, and it is not required by the laws of
Georgia to be executed before two witnesses under § 4179
and this section. Woodward v. Jewell, 140 U. S. 247, 11
S. Ct. 784, 25 E. Ed. 478.
Acts Required by Code. — See § 3607.
Corporations. — The last sentence of this section, relative
to corporations, changes the common law ride. Brandon
v. Pritchett, 126 Ga. 286, 289, 55 S. E. 241.
Where a corporation claimed that one who had been its
agent in certain transactions was indebted to it in a cer-
tain sum, and sent another agent to close up its account
with him, and the second agent took a note evidencing the
amount of the indebtedness, it was competent for the agent
thus authorized (there being a dispute between him and the
debtor as to the actual amount o(f the debt, the debtor claim-
ing that he bad evidence to^show that a certain item of in-
debtedness should not be included in the note) to stipulate
in writing, under this section, that if this evidence should
be discovered the debtor could use the same as against the
note given ; and it was not necessary to show that the au-
thority to execute such a written agreement was itself in
writing. Home Fertilizer & Chemical Co. v. Strickland,
145 Ga. 197, 88 S. E. 820.
It was held under this section and §§ 2404, 2470 that it
is not essential to the validity of a policy of insurance,
which was actually signed by the president and secretary
of the company by which it purported to have been issued,
that the person who in behalf of the company, after the
policy had been so signed and placed in his hands, filled
§ 3575
PRINCIPAL AND AGENT
§ 3576
blanks therein so as to make it a complete contract, and
who then delivered the same to the insured, should have
been clothed with written authority either to fill such blanks
or make the delivery. Smith v. Farmers Mutual Ins. Co.,
Ill Ga. 737, 35 S. E. 957.
§ 3575. (§ 3003.) Revocation.
1. Generally, an agency is revocable at the
will of the principal. The appointment of a new-
agent for the performance of the same act, or
the death of either principal or agent, revokes
the power. If, however, the power is coupled
with an interest in the agent himself, it is not
revocable at will; and in all cases the agent may
recover from the principal, for an unreasonable
revocation, any damages he may have suffered
by reason thereof.
2. But every creditor or other person advanc-
ing money upon the pledge of a certificate of
stock, or other script representing an ownership
or interest in corporations in Georgia, shall have
such an irrevocable interest in such certificate of
stock or other script as not to be affected by the
death, insanity, or legal disability thereafter of
the person in whose name such stock or other
script stands upon the books of any corporation
in Georgia; but such pedgee or holder of such
stock or script assigned in blank, coupled with
the power of attorney, shall have the same right
after the death, insanity, or legal disability of
the person in whose name said stock stands
upon the books of said corporation, as before
the death, insanity, or legal disability of such
person. Acts 1894, p. 44.
Cross References.— For full treatment of this subject, see
1 Cum. Dig. 270; 1 Enc. Dig. 219. As to effect of death
of lender or borrower on loans, see § 3526.
Editor's Note — Power Constituting Security. — This first
paragraph of this section enunciated the general rule in
the United States. See 1 Am. & Eng. Enc. of Law 1216';
1 C. J. 527. ■ It has been held that the section is not ex-
haustive (see 1 Enc. Dig. 220) and it would seem that the
exception which is generally recognized, namely, that an
authority constituting a security, or necessary to effectuate
a security, is also in force in Georgia. See Ray v. Hemp-
hill, 97 Ga. 563, 564, 25 S. E. 485. See also, 1 Enc Dig.
220.
Power Coupled with Interest. — The interest of the
agent, that will prevent revocation at the will of the prin-
cipal referred to, in this section, must lie in the subject-
matter of the agency, and not merely in the profits which
are to result from the exercise of the power; that is to
say, in a case like the instant one, the agent must have an
interest in the contract of rental, and not merely in the
contract of agency by virtue of which he is to be com-
pensated for his future services in the collection of the
rents. Adair v. Smith, 23 Ga. App. 290, 98 S. E. 224;
Turman v. Winecoff, 138 Ga. 726, 75 S. E. 1131; Lathrop
v. Brown, 65 Ga. 312, 316; Wilkins v. McGehee, 86 Ga.
764, 766, 13 S. E. 84.
An interesting leading case on this subject is Hunt v.
Rousmanier. This case contains one of Chief Justice Mar-
shall's most famous opinions, and will be found in 8 Wheat.
173.— Ed. Note.
Same — Illustrations. — It was held under this section that
the work and expense of an authorized agent in finding a
tenant and securing a lease could be taken as sufficient to
establish such an interest that will prevent revocation at
the will of the principal in the contract of rental. Adair
v. Smith, 23 Ga. 290, 98 S. E. 224.
To employ an attorney to sue for property under a spe-
cial contract whereby his fee is payable out of the pro-
ceeds of the suit, such a contract is in the nature of a
power with an interest, and such a power is irrevocable
under this section. Twiggs v. Chambers, 56 Ga. 279, 282.
A factor's power of sale to reimburse himself for ad-
vances he has made to his principal or incurred expense
in taking care of the property of such property is not re-
voked by the death of the principal under this section. Wil-
lingham v. Rushing, 105 Ga. 72, 31 S. E. 130.
Where one, without consideration, entrusted an agent with
a sum of money to settle a law-suit between two others,
she has the power of revocation under this section, until
the settlement is complete, especially if the contract be
in writing and it is therein expressly agreed that the terms
of the settlement are to be satisfactory to her in every
way, and if not, then the money to be restored to her.
Phillips v. Howell, 60 Ga. 412.
A power of sale given by mortgage was held under this
section to be revoked by the mortgagor's death before
the note fell due. Wilkins v. McGehee, 86 Ga. 764, 13
S. E. 84; Lathrop v. Brown, 65 Ga. 312.
Payment of Consideration. — It was held under this sec-
tion that a power will not survive merely because the do-
nee may have paid a valuable consideration for it. Tur-
man v. Winecoff, 138 Ga. 726, 75 S. E. 1131.
Wrongful Revocation — Action for Damage. — If the revo-
cation is unreasonable and constitutes a breach of con-
tract whereby the agent sustains injury, the law affords
his redress in an action for damages under this section.
Ray v. Hemphill, 97 Ga. 563, 566, 25 S. E. 485; Stand-
ard Oil Co. v. Gilbert Co., 84 Ga. 714, 11 S. E. 491.
§ 3576. (§ 3004.) Agent limited by his au-
thority.— The agent must act within the author-
ity granted to him, reasonably interpreted; if he
exceeds or violates his instructions, he does it at
his own risk, the principal having the privilege
of affirming or dissenting, as his interest may
dictate. In cases where the power is coupled
with an interest in the agent, unreasonable in-
structions, detrimental to the agent's interest,
may be disregarded.
Cross References. — As to the duty of the agent to follow
instructions, see 1 Cum. Dig. 276; 1 Enc. Dig. 229. As
to effect of money paid to agent by mistake, see § 3608.
As to liability of agent exceeding his authority, see §
3613. As to right o^f agent to enforce contract in his own
name where he has exceeded his authority, see § 3614. As
to sale by agent in possession and with apparent right to
sell, see § 4119. As to instructions from one of several
principals, see § 3585.
In General. — "The law is well settled that; 'when the
directions to an agent are clear and well defined,' it is his
duty to follow them faithfully, provided this may be law-
fully done * * * . although the agent is, in the absence
of instructions, bound to follow the established usage or
mode of dealing, yet no custom or usage will authorize a
departure from positive instructions; the instructions of the
principal make the law by which the agent is governed. 1
Am. & Eng. Enc. E. (2nd Ed.) 1062." Central, etc., R.
Co. v. Felton, 110 Ga. 600, 36 S. E- 93'; Hatcher v. Co-
mer, 73 Ga. 418; McEendon v. Callaway, 52 Ga. 41; Day
v. Crawford, 13 Ga. 508.
It follows that if injury result to the principal from a
failure of the agent to observe his instructions, the agent is
liable therefor to his principal. Day v. Crawford, 13 Ga.
508; Georgia S. & F. R. Co. v. Jossey, 105 Ga. 271, 31 S.
E. 179; Cason v. Heath, 86 Ga. 438, 12 S. E. 678; Geor-
gia Bank v. Cleveland Bank, 59 Ga. 667; Cave v. Eougee,
134 Ga. 135, 67 S. E. 667.
But where an agent deviated from his instructions, and
forthwith informed his principal, and the principal, with
full knowledge of the facts, either ratifies the act, in terms,
or fails, within a reasonable time, to disapprove, the agent
is not liable for the deviation from his instructions. Bray
v. Gunn, 53 Ga. 145, 149.
Special Agents. — In the case of a special agency for a
particular purpose it is the duty of the one dealing with
the agent to examine his authority. Van Arsdale v. Joiner,
44 Ga. 173, 179.
Same — Brokers. — It was held under this section and §§
3593, 3595 that a broker is a special agent, and derives his
power and authority to bind his principal from the instruc-
tion given to him by his principal. Clark v. Cumming &
Co., 77 Ga. 64, 67.
Unreasonable Instructions to Agent with Interest. —
Ordinarily an agent must be guided wholly by the wishes
or directions expressed by his principal, but in cases of an
agency coupled "with an interest, unreasonable instruction,
detrimental to the agent's interests, may be disregarded un-
der this section. Gordon & Co. v. Cobb, 4 Ga. App. 49,
60 S. E. 821.
Same — When Coupled with Interest. — An express com-
pany employed a messenger and required him to give bond.
The bond provided that he should "well and truly perform
all the duties required of me in any position * * *, and
indemnify and save harmless the said company from all lia-
bility on account of my fault or neglect." Held, that as be-
tween the company and the messenger his liability was that
[ 978 ]
§ 3577
PRINCIPAL AND AGENT
§ 3581
of an agent, and depended on his diligence or negligence
and it was erroneous to charge the latter part of this sec-
tion as the power of this agent to act in this business was
not coupled with any interest in him in the sense of this
section. Southern Express Co. v. Frink, 67 Ga. 201.
Factors.— It was held under this section where cotton
factors sued customers for advances made on cotton con-
signed to them for sale, the customers could not set off
damages because of a sale of the cotton for a lower price
than they had instructed it sold for, where, in accordance
with the general custom and usage of the trade at the place
of sale, the cotton was sold after the customers had failed
to comply with repeated notices from the factors to de-
posit with them more margins, and where, in the opinion
6)f the factors, the cotton was not a sufficient security for
the balance due them. Eeffler Co. v. Pearson, 17 Ga. App.
57, 86 S. E. 256.
It was held under this section where an agent, such as a
cotton factor, who has been instructed by his principal to
sell cotton belonging to the latter immediately and for the
best price obtainable, fails to sell the cotton and thereby vio-
lates his contract with the principal, no actual damage is
suffered by the principal where the cotton has not de-
creased in value from the time when the agent in the due
exercise of his commission should have sold the cotton
and the time when the principal learned of the agent's
violation of his agreement to sell and should have af-
firmed or disapproved of the agent's conduct in failing to
sell. Vinson v. Kinney & Co., 30 Ga. App. 731, 119 S.
E. 217. See § 3591 and notes thereto.
Borrowing Money. — It was held under this section and
§ 3593 which lays down the rule as to how the principal
is bound by the acts of his agent that authority to bor-
row money is among the most dangerous powers which a
principal can confer upon an agent, and must be created
by express terms, or be necessarily implied from the very
nature actually created. Exchange Bank v. Thrower, 118
Ga. 433, 45 S. E- 316.
Burden of Proving Instructions. — Where the contention
of the principal is, not that the agent exceeded the scope
of his general authority, but that he violated specific in-
structions as to a particular matter, the burden is upon
the principal to show that such instructions were given,
and where this has been done the agent is charged with
strict comoliance with instructions; no matter how broad
his general powers as agent might otherwise have been.
Lovejoy v. Lamar, 20 Ga. App. 499, 500, 93' S. E. 153.
§ 3577. (§ 3005.) Money deposited by agent.
— A principal may follow his money deposited
by an agent in the latter's name, and recover the
same wherever found, unless the rights of inno-
cent third persons have intervened.
As to right of principal to recover money illegally paid,
etc., see § 3605.
Editor's Note. — The principle enunciated in this section
which appeared for the first time in the Code of 1895
is based upon the decision in the case of Spain v. Black
& Son, 52 Ga. 494, decided in 1874 and which is almost
identical with this section.
§ 3578. (§ 3006.) Payment to agent failing to
produce obligation. — Where money is due on a
written evidence of debt, payment to an agent
of the creditor who fails to produce the obliga-
tion is at the risk of the debtor. Non-produc-
tion of the security rebuts the implication of au-
thority arising from the agent's employment, and
it must be otherwise established.
Cross References. — As to payment, see 2 Cum. Dig. 93/.
As to payment generally to agent, see § 4311. As to pay-
ments to agent by third party, see 1 Cum. Dig. 283 et
seq. ; 1 Enc. Dig. 240. As to effect of sale where agent is
in possession with apparent right to sell, see § 4119.
Editor's Note. — The principle laid down in this section
which first appeared in the Code of 1895 is based upon
the decisions in the cases of Howard and Soule v. Rice,
54 Ga. 52, 55, decided in 1874 and Bank of the Univer-
sity v. Tuck, 96 Ga. 456, 23 S. E. 467, decided in 1894
which are almost identical with this section. The court
in Howard and Soule v. Rice stated, "This general rule of
law will injure no one who exercises the ordinary degree
of prudence in requiring the production of his note be-
fore he pays it." The court in Bank of the University
v. Tuck said, "The rule as settled by the authorities seems
to be, that in such a case the holder, notwithstanding the
previous payment of the note by the maker to the original
payee, may collect it again, unless one of three things ap-
pears: first, that the payee was the holder's general agent
for the collection of such papers; or, second, had special
authority to collect in the particular instance; or, third,
that the money collected by the payee in fact reached the
holder's hands. It will be obvious, without further elabo-
ration, that if the payee collected for the holder under his
authority, either general or special, or if the holder ac-
tually received the money collected by the payee upon the
note, this should be an end to the matter. Otherwise, the
law renders the careless maker liable to pay a second
time."
Not Applicable to Payment to Partner. — This section has
no application where payment on a note payable to a part-
nership is made to one partner. Brady v. Phillips Mule
Co., 27 Ga. App. 444, 108 S. E. 809.
Burden of Proof. — It was held under this section where
payment on a written evidence of debt is made to a per-
son as agent for another, the production of the written
evidence of debt raises an implication of his authority to
receive the payment as agent, but where it is not pro-
duced there is no such implication, and the burden is upon
the person making the payment to establish, such authorty.
Shcrrod v. Springfield Baptist Church, 21 Ga. App. 200,
93 S. E- 1009; Brady v. Phillips Mule Co., 27 Ga. App. 444,
108 S. E. 809; Diddle v. Saw, 141 Ga. 364, 80 S. E. 999.
Same — Proof of Express or Implied Authority or Ratifica-
tion.— This section does not preclude the debtor from
otherwise establishing such express or implied authority,
nor from showing the subsequent ratification of the act by
the creditor as principal. Roberts v. Bank, 20 Ga. App.
221, 92 S. E. 1015; Baker v. Armour Fertilizer Works,
18 Ga. App. 611, 90 S. E. 171.
Declarations of Agent Insufficient Proof. — The declara-
tions of the alleged agent are insufficient to establish
agency and authority to collect. Baker v. Armour Fertil-
izer Works, 18 Ga. App. 611, 90 S. E. 171.
Plea of Partial Payment Invalid. — It was held under this
section in a suit upon a promissory note, where the debtor
shows that he paid a part of it to a supposed agent of
the holder of the note, but fails to show that the supposed
agent produced the note at the time of payment, or that
the money so collected ever reached the owner of the note,
or that the alleged agent had specific authority to collect
the note, no valid defense of partial payment is shown.
Lane v. Bank, 23 Ga. App. 275, 97 S. E. 884.
§ 3579. (§ 3007.) Agents and fiduciaries to
keep accounts. — It is the duty of agents, trus-
tees, administrators, guardians, receivers, and all
other fiduciaries to keep their accounts in a
regular manner, and to be always ready with
them supported by proper vouchers; neglect of
this duty is ground for charging them with in-
terest on balances on hand, and with costs.
Cross References. — As to duty of agents to keep ac-
counts, see 1 Cum. Dig. 278; 1 Enc. Dig. 232. As to ac-
counting, see 11 Cum. Dig. 208; 12 Enc. Dig. 392.
Editor's Note. — The principle set out in this section which
first appeared in the Code of 1895 is barred upon the de-
cisions in the cases of Dowling v. Feeley, 72 Ga. 557, 567,
decided in 1884, and Poullain v. Poullain, 76 Ga. 420, 452,
decided in 1886. The language of the court in the cases
cited above is almost identical with this section.
Burden of Proof. — The burden of proof is upon the agent
to show compliance with this section. Dodge v. Hatchett,
118 Ga. 883, 45 S. E. 667.
§ 3580. (§ 3008.) Deposit by agent, bank
failing. — If the money of a principal is deposited
by a private agent, in the name of the principal,
in the hands of a banker of good credit, and
such deposit is according to the common usage
of the place, the agent will not be responsible
for any loss arising from the failure of the
banker.
Editor's Note. — The principle laid down iii this section
is based upon the decision in the case of Rogers v. Hop-
kins, 70 Ga. 454, 464. This section first appeared in the
Code of 1895 and the case cited above was decided in
1883. The language of the case cited above is almost
identical with this section.
As to liability of administrator on failure of bank in
which he has deposited money of estate, see Gatewood v.
Furlow, 19 Ga. App. 74, 90 S. E. 973.
3581. (§ 3009.) Diligence of an agent. — An
[979]
§ 3582
PRINCIPAL AND AGENT
§ 3584
agent for hire is bound to exercise, about the
business of his principal, that ordinary care,
skill, and diligence required of a bailee for hire.
A voluntary agent, without hire or reward, is
liable only for gross neglect.
Cross References. — For full treatment of this subject, see
1 Cum. Dig. 275, 277; 1 Fnc. Dig. 228, 230. As to what
is ordinary diligence, and ordinary neglect, see § 3471.
Where Agency Is a Partnership. — The law implies, as a
part of the contract by which every agency arises, that
the agent agrees to have and exercise towards his principal
diligence, loyalty, and absolute good faith; and where the
agent is a partnership, the partnership and all its mem-
bers may be held liable for a violation of such duty by
any member, as for a breach of contract. Render v. Hart-
ford Fire Ins. Co., 33 Ga. App. 716, 127 S. F. 902.
Loss of Money. — It was held under this section that an
agent would be liable if money was stolen as a result of
his failing to perform some duty with respect to its
handling and custody which rested on him independently
of the instructions under which he was acting, if such
failure on his part, under the circumstances, amounted to
a failure to exercise ordinary care. Cave v. Lougee, 134
Ga. 135, 67 S. F. 667.
Notifying Principal of Service. — Where the law au-
thorizes service of process upon a principal by service upon
the agent, it is the agent's duty, when service is so made,
to exercise diligence to notify his principal, and in de-
fault thereof the agent will be liable for such damage as
the principal may sustain. Render v. Hartford Fire Ins.
Co., 33 Ga. App. 716, 127 S. F. 902. See § 3599, and
notes thereto.
Voluntary Agent — Consideration. — The rule, that where
mutual promises furnish the only consideration for a con-
tract they must be mutually binding, was inapplicable
where the case was made to substantially rest on the the-
ory that there was no valuable consideration for the agree-
ment, but that the defendant agreed with the plaintiff to
render certain services as the agent of the latter, and that
he was liable for gross neglect under this section as a
voluntary agent. Barber v. Roland, 143 Ga. 432, 435, 85
S. F. 321.
It was held under this section that a voluntary agent
without reward is only liable for gross neglect in and about
the business of his principal. Armstrong, Cator & Co. v.
Pease, 66 Ga. 70.
Charging Section. — A charge substantially in the lan-
guage of this section is sufficient. Pencil Co. v. Pinker-
ton's Agency, 19 Ga. App. 429, 91 S. F- 432.
§ 3582. (§ 3010.) Agent can not buy or sell
for himself. — Without the express consent of the
principal after a full knowledge of all the facts,
an agent employed to sell can not be himself the
purchaser; and an agent to buy can not be him-
self the seller.
Cross References. — As to principal having advantage of
his agent's contracts, see § 3604. As to sale by admin-
istrator, when void or voidable, see § 4039. As to what
relations shall be deemed confidential, see § 4627. As
to right of sheriff, deputy of other officer to purchase at
his own sale, see § 4918. As to purchase by agent of
subject of agency, see 1 Cum. Dig. 279; 1 Fnc. Dig. 232,
233.
General Rule. — It was held under this section that as a
general rule, one employed by an owner of property to
sell it as his agent is not authorized to sell it to himselt
alone or with others. Peterson v. Appleby, 31 Ga. App.
286, 120 S. F. 651; Mitchell v. Gifford & Co., 133 Ga.
823, 67 S. F. 197; Macon v. Huff, 60 Ga. 221, 233. See
§ 3583 and notes thereto.
This section and §§ 3583, 3586, and 3590 follow the rule
that "no man can serve two masters; for either he will
hate the one, and love the other; or else he will hold to
the one, and despise the other." Gann v. Zettler, 3 Ga.
App. 589, 60 S. E. 283.
Indirect Buying. — An agent or attorney employed to sell
property can not directly or indirectly become the pur-
chaser without the principal's knowledge and consent un-
der this section. Reeves v. Callaway, 140 Ga. 101, 78 S.
F. 717.
Recovery of Commissions. — An agent who secretly under-
takes to represent both parties to a transaction is not
permitted to recover commissions from either of them.
This rule applies to real-estate agents as well as others.
Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 60 S. F.
372.
Under the facts of this case, the plaintiffs, a firm of
brokers with whom the defendant had listed real estate
for sale, were not entitled to recover a commission from
him for services in procuring a prospective purchaser,
who obtained from the defendant an option for the pur-
chase of +he property and transferred the option to one
of them. Peterson v. Appleby, 31 Ga. App. 286, 120 S.
F. 651.
But when it is clearly understood by all the parties
that one who is paid commissions to sell cotton, is also
to charge commissions from the buyer the transaction is
not illegal. Talcott v. Chew, 27 Fed. 273.
Applied to Sale in Foreign Markets.— Under this section
an agent to sell is not. without the consent o)f his prin-
cipal, authorized to make sales in foreign markets under
an arrangement whereby the agent should assume all risks
and contingencies of loss and take all the profits, as this
would amount to a sale by the agent to himself, and one
can not lawfully do by indirection what he is positively
forbidden to do. Atlantic Turpentine, etc., Co. v. Rosin,
etc., Co., 247 Fed. 618.
Applied to Mayor Contracting with City. — A mayor of a
city while in office can not contract with the city council to
rent a city park. Macon v. Huff, 60 Ga. 221, 233, citing
this section.
Applied to Trustee. — Trustee could not buy at his own
lawful sale. For a stronger reason he could not buy. at a
sale brought about by his own unlawful conduct. Bour-
quin v. Bourquin, 120 Ga. 115, 118, 47 S. F. 639.
Applied to Insurance Agent. — It was held under this sec-
tion that an agent of a fire-insurance company, authorized
to contract for insurance in its behalf, can not, without
the company's consent, become in his individual character
the agent of a property-owner who desires to obtain in-
surance in that company. Ramspeck v. Pattillo, 104 Ga.
772, 30 S. F. 9J52.
Applied to President of Corporation Acting as Agent. —
It was held under this section that a conveyance by an
agent authorized to sell, if made to a corporation of which
he is president and a stockholder, may likewise be treated
as void by the principal. Whitley v. James, 121 Ga. 521,
49 S. F. 600.
Not Applicable to Purchase by Trustee under Order of
Court. — Money was invested in the capital stock of a bank,
under order of court when the bank was acting as trustee
was legal, as this was in no sense such a case as provided
against in this section and the principal had full knowl-
edge of all the facts, and the sale had the specific author-
ity of judicial sanction. Haddock v. Planters' Bank, 66
Ga. 496.
<§ 3583. (§ 3011.) Personal profit.— The
agent must not make a personal profit from his
principal's property; for all such he is bound to
account.
Cross References. — As to right of principal to have ad-
vantage of agent's contracts, see § 3604. As to right qf
trustee to use trust fund to his own profit, see § 3.767.
As to right of agent to purchase subject of agency, see 1
Cum. Dig. 280, and see notes to the section immediately
preceding.
In General. — The first duty of an agent is that of loyalty
to his trust. He must not put himself in relations which
are antagonistic to that of his principal. His duty and
interest must not be allowed to conflict. He can not deal
in the business within the scope of his agency for his own
benefit, under this section. Arthur v. Georgia Cotton Co.,
22 Ga. App. 431, 96 S. F. 232.
Same — Right of Agent to Make a Secret Profit. — It was
held under this section and §§ 3582, 4628 that an agent
to buy and resell property for his principals can not law-
fully make a secret profit from the transaction; nor is it
necessary to the application of this rule that the principal
must show actual or moral fraud. Ausley v. Cummings,
145 Ga. 750, 89 S. F. 1071.
Applied to Trustees. — It was held under this section and
§§ 3767 and 3'991 that a trustee can never be allowed to
derive a personal advantage from the use of his principal's
property. Rogers v. Dickey, 117 Ga. 819, 822, 45 S. F-
71. See § 3582 and notes thereto.
Public agent included under this section. Macon v. Huff,
60 Ga. 221, 233.
§ 3584. (§ 3012.) Estoppel.— An agent cart
not dispute his principal's title, except in such
cases where legal proceedings, at the instance of
others, have been commenced against him.
Cross References. — As to agent's denial of principal's*
title, see 1 Cum. Dig. 280; 1 Fnc. Dig. 235; 5 Fnc. Dig.
[ 980]
§ 3585
PRINCIPAL AND AGENT
§ 3587
246. As to right of tenant to dispute landlord's title, see §
3698.
In General. — One who undertakes to act as the agent of
another, can not dispute the right or title of his principal in
and to the subject of the agency. Morgan v. Morgan, 160
Ga. 472, 128 S. E. 674.
Restoration of Note. — Under this section one in posses-
sion of a promissory note as agent for another is not cut
off from restoring the note to his principal though a de-
mand upon him for the note has been made by another
claimant. Wando Phosphate Co. v. Parker, 93 Ga. 414,
21 S. E- 53.
Declarations of Agent Disparaging Title. — It was held
under' this section that the declarations of an agent, who
is in possession of realty merely to manage and care for the
same, are not admissible in evidence against the principal
to disparage his title. Sweeney v. Sweeney, 119 Ga. 76,
46 S. E. 76.
Applied to Agent Holding Collateral. — It was held under
this section that, if there was an agreement between J. and
B. that the latter should hold a certificate to secure a debt
due him by the former, and if J., for the purpose of secur-
ing such debt, delivered the certificate to B. and the latter
delivered it to L- for safe-keeping, L. could not defeat a
recovery of the certificate by B. on the ground that there
was no written assignment of the certificate by J. to B.
Loveless v. Bridges, 136 Ga. 338, 71 S. E. 166.
Applied to Person Signing Name of Another.— Where a
person signs the name of another to a note purportedly as
his joint obligor, he will be estopped to assert, in an action
thereon by an innocent holder for value, that he did not
have the authority to sign the name of such other party to
the note. Williams v. Atlanta Nat. Bank, 31 Ga. App.
212, 120 S. E. 658.
Applied to County Official Borrowing Money. — It was
held under this section, where the authorities in charge c*f
the finances of a county borrowed money' for county pur-
poses without authority of law, and the money thus un-
lawfully borrowed was received by the county treasurer as
county funds and kept with the lawful money of the county,
he was estopped from denying that he held this borrowed
money by virtue of his office as treasurer, and was liable
for the same upon his official bond. Mason v. Commission-
ers, 104 Ga. 35, 30 S. E. 513.
§ 3585, (§ 3013.) Agent of several.— Where
several persons appoint an agent to do an act for
their joint benefit, the instructions of one, not
inconsistent with the general directions, shall
protect the agent in his act.
Cross References — As to duty of agent to follow instruc-
tions, see 1 Cum. Dig. 276, and see § 3576 and notes
thereto. As to duty of agent of partnership, see § 3181.
§ 3586. (§ 3014.) Commission and expenses.
— An agent who has discharged his duty is en-
titled to his commission and all necessary ex-
penses incurred about the business of his princi-
pal. If he has violated his engagement, he is en-
titled to no commission.
Cross References.— For full treatment of this subject, see
1 Cum. Dig. 271; 1 Enc. Dig. 221, 226. See also, notes to
§ 3582. As to right of any commission merchant, factor or
salesman to charge tax, see § 1852. As to implied obliga-
tions to pay, see § 5513.
Editor's Note.— Very little direct construction of tins
section appears in the Georgia reports. The last sentence,
which provides that violation of the agreement deprives the
agent of his commission, necessarily demands a construction
of other sections of this article — for what constitutes a vio-
lation df the agreement must be ascertained by the rules
therein provided. Therefore, reference should be made to
the notes of other sections pertaining to agency.
§ 3587. (§ 3015.) Brokers right to commis-
sion.— The fact that property is placed in the
hands of a broker to sell does not prevent the
owner from selling, unless otherwise agreed.
The broker's commissions are earned when, dur-
ing the agency, he finds a purchaser ready, able,
and willing to buy, and who actually offers to
buy on the terms stipulated by the owner.
I. Editor's Note.
II. Compensation.
A. In General.
B. Sale by Principal.
[ 98
C. Refusal of Principal to Effectuate.
D. Modification of Effects of Section by Contract —
Sales Agents — Necessity for Consummation of
Sale.
III. Pleading and Practice.
Cross References.
For full tteatment of this subject, sec 3 Cum. Dig. 84 et
Seq.; 2 Enc. Dig. 625.
I. EDITOR'S NOTE.
The principle laid down in this section, which appeared
for the first time in the Code of 1895, is based upon the
decisions in the cases of Hyams v. Miller, 71 Ga. 608, 619,
decided in 1883; Doonan v. Ives, 73 Ga. 295, decided in
1885 and Emery v. Atlanta Exchange, decided in 1891.
The language of the court in the cases cited above is
very similar to the language of this section. In Hyams v.
Miller, cited above the court stated: "The rule, as we
understand it, where the compensation is to be paid by way
of commissions, the whole service or duty must be per-
formed before any right to commissions arises, unless the
act o>f the principal has prevented the performance of it."
II. COMPENSATION.
As to pleading and practice, see post, this note, "Pleading
and Practice," III.
A. In General.
"Owner," as used in this section, is construed to mean
"owners," where the property belongs to joint owners.
Stallworth v. Martin-Ozburn Realty Co., 17 Ga. App. 689,
87 S. E. 1094.
"Able" to Buy. — The word "able," as used in this sec-
tion, means financially able. Shaw v. Chiles, 9 Ga. App.
460, 71 S. E. 745.
The ability to buy, required in a purchaser obtained by a
real-estate broker as a condition to the broker's right to
earn a commission for his services, is the final ability to
meet the required terms of the sale. Stewart v. Sisk, 29
Ga. App. 17, 114 S. E. 71.
But the ability to buy does not mean solvency or ability
to respond in damages for a breach of the contract. Stew-
art v. Sisk, 29 Ga. App. 17, 114 S. E. 71.
Right to Commission When Lien Exists on Property. —
A real-estate broker earns his commission under this sec-
tion when during the agency he finds a purchaser ready,
able, etc. This is true even though there may exist a lien
upon the property, known to the broker, but which the
owner in a contract with the purchaser, accepting the offer
and binding the sale, agrees to remove. Martin v. Thrower,
28 Ga. App. 270, 110 S. E. 742.
Customer Unable to Make Title. — Where an agent's
customer agreed with the principal upon an exchange of
lots and was unable to make title the agent did not earn
any commission as the purchaser was not "ready, willing
and able" to buy upon the terms agreed upon by him with
the principal. Harris v. Warmack, 24 Ga. App. 600, 101
S. E. 713.
Terms Stipulated by Owner. — By virtue of this section
an offer by the proposed purchaser to buy on terms not
stipulated by the owner will not entitle the broker to his
commissions. Howard v. Sills & Purvis, 154 Ga. 430, 114
S. E. 580; Parker v. Stubbs, 139 Ga. 46, 48, 76 S. E. 571.
And where there was a clear variance between the con-
tract effected by the plaintiff and that which he was author-
ized to make, the owner had the right to repudiate the con-
tract, as there was no acceptance "on the terms stipulated
by the owner under this section." Hudson v. Dawson Na-
val Stores & Lumber Co., 23 Ga. App. 353, 98 S. E. 186.
Owner Need Not be Confronted with Buyer. — LTnder this
section the commissions are earned when a purchaser is
found and the owner is notified, though the prospective
purchaser is not brought into the actual presence of the
owner and no contract of sale binding alike on the seller
and purchaser has been made. Wilmont & Cosby v. Sil-
verman, 26 Ga. App. 196, 105 S. E. 654.
Exercise of Option — This section applies where the pur-
chaser procured by the broker first buys an option to pur-
chase, and subsequently, within the life of the option, ex-
ercises his option by electing to purchase and gives timely
and unconditional notice thereof to the other party. In such
a case the broker's right to his commissions does not ripen
into a cause of action until the option has been actually
exercised. Snead v. Wood, 24 Ga. App. 210, 100 S. E. 714.
Where the owner of land gives to a broker, for a valuable
consideration, a written option, for a named number of
days, to sell his land at a certain fixed price, the owner
can not lawfully withdraw the option during the life of the
contract. And the broker's commissions are earned under
this section Sf, during the life of the option, he finds a pur-
chaser ready, able, and willing to buy, and who actually
1]
3587
PRINCIPAL AND AGENT
§ 3587
offers to buy, the land on the terms stipulated by the
owner. Cobb v. Jolley, 30 Ga. App. 48, 116 S. E. 553.
Applies to Sale or Exchange of Land. — See Ray v.
Hutchinson, 27 Ga. App. 448, 451, 108 S. E. 815.
B. Sale by Principal.
Before Broker Procures Purchaser. — It is well settled
under this section that where there is no express provi-
sion to the contrary, the appointment of a real-estate agent
to sell property does not deprive the owner of the right of
selling the property himself without liability to account to
the real-estate agent for the commission. Floyd & Lee v.
Boyd, 16 Ga App. 43, 47, 84 S. E. 494; Ford v. Thom-
ason, 11 Ga. App. 359, 360, 75 S. E. 269; Humphries v.
Smith, 5 Ga. App. 340, 342, 63 S. E- 248. In Hawks
v. Moore, 27 Ga. App. 555, 556. 109 S. E. 807, it is said:
The provision of this section reserving to the owner the
right of "selling" the property contemplates that the owner
and the purchaser have entered into a mutually binding and
enforceable contract before the broker produces a duly
qualified purchaser.
Under this section an owner of real estate, by employ-
ing an agent to effect the sale thereof under a written con-
tract under seal, does not preclude himself from selling it,
provided he makes the sale in the utmost good faith, with-
out any purpose to defraud the agent of his right to com-
missions under the contract. The fact that the contract
provides that the agency created thereby is irrevocable for
the term df three months is not of itself sufficient to pre-
vent the owner from himself selling the property within
that time, if he does so, as above stated, to a person with
whom the agent has had no prior negotiations relating to
the sale or purchase of the property. Moore v. May, 10
Ga. App. 198, 73 S. E. 29.
Where there was an issue of fact as to whether a broker
was employed to sell property or his acts ratified, and it
appeared that the owner sold the property himself, without
the broker's aid, to a purchaser with whom the broker ne-
gotiated, the court should have charged pursuant to this
section that placing the property in the hands of a broker
did not prevent the owner from selling unless otherwise
agreed. Folds v. Lifsey Co., 26 Ga. App. 297, 105 S. E-
854.
After Broker Procures Purchaser. — Under this section
when a broker procures a purchaser ready, able, etc., to
buy, the principal can not defeat his right to commission by
completing the sale himself through another broker.
Gresham v. Lee. 152 Ga. 829, 832, 111 S. E. 404. See
also, Central, etc., Ry. Co. v. McKenzie, 125 Ga. 222, 53
S. E. 591.
The principal can not, with knowledge of the negotiations
between the purchaser and the agent, and while such ne-
gotiations are still pending, defeat the right of the agent
to recover such commission by interfering with and himself
completing the sale of which the agent was the procuring
cause. Case Threshing Machine Co. v. Binns, 23 Ga. App.
46, 97 S. E. 443; Brown v. Stokes, 25 Ga. App. 254, 103
S. E. 423; Washington v. Jordan, 28 Ga. App. 18, 109
S. E. 923; Gresham v. Connally, 114 Ga. 906, 909, 41 S.
E. 42.
Nor can the agent be deprived of his commission by ne-
gotiations between the owner and a prospective purchaser
with whom the owner has not entered into a mutually bind-
ing and enforceable contract for the sale of the property.
Hawks v. Moore, 27 Ga. App. 555, 109 S. E. 807.
C. Refusal of Principal to Effectuate Sale.
Effect. — Where the owner, without legal excuse, refuses
to effectuate the sale, he becomes liable for the commissions
pursuant to the provision of this section; and after such a
refusal it is generally not necessary that the proposed pur-
chaser shall have made to the owner an actual tender of
the purchase price. Hogan v. Gilbert, 27 Ga. App. 444,
108 S. E. 625.
By virtue of this section the agent would not be deprived
of his commissions, if it be made to appear that the whole
service or duty devolving upon the agent has been per-
formed, and that only the refusal or interference of the
owner has prevented the consummation of the sale accord-
ing to the terms authorized in the contract of listment.
Roberts v. Prater & Forrester, 29 Ga. App. 245, 114 S. E.
645.
Under contracts creating the ordinary relationship of
principal and real-estate broker, and providing commissions
for the latter, the principle of this section applies and the
broker has made a sale whenever, through his influence, a
person ready, able, and willing to buy on the terms pro-
posed is brought to the principal, though, through the fault
or disinclination of the principal, no actual sale is ever
consummated. Kesler v. Stults, 15 Ga. App. 735, 84 S.
[982]
E. 201; Humphries v. Smith, 59 Ga. App. 340, 342, 63 S.
E. 248.
Necessity for Tender of Purchase Price. — Where a
broker has a purchaser ready, willing, and able to buy, and
who offers to buy on terms stipulated by the owner and
the owner refuses to carry out the trade, it is not gener-
ally necessary, in order for the broker or agent to recover
his commissions, that the proposed purchaser should make
to the proposed vendor an actual tender of the purchase
price. Winer v. Flournoy Realty Co., 27 Ga. App. 87, 107
S. E. 398; Smith v. Tatum, 140 Ga. 719, 79 S. E. 775.
D. Modification of Effects of Section by Contract — Sales
Agents — Necessity for Consummation of Sale.
Modification by Agreement. — Sometimes, under his em-
ployment, the broker's duty is not merely to procure a pur-
chaser, but to perform some other agreed service within a
reasonable time, or within a limited time. In such cases
the general rule in this section as to what is required of
him in order to be entitled to commissions is modified ac-
cordingly. Phinizy v. Bush, 129 Ga. 479, 493, 59 S. E.
259.
The owner may, by the express terms of his agreement
with the broker, limit his liability by specifically providing
that the commissions shall become earned, due, and payable
only as the purchase-price shall be actually paid. Such a
provision would not, however, affect the broker's rights to
commissions in a case where, during the agency, he finds a
purchaser, ready, able, and willing to buy, and who actually
offers to buy on the terms stipulated, but where the owner
himself refuses to consummate the trade. Hogan v. Gil-
bert, 27 Ga. App. 444, 108 S. E. 625.
The general rule laid down by this section that a real-
estate broker's commission is earned when, during the
agency, he finds a purchaser ready, able, etc., does not ap-
ply when an agreement to pay a definite amount as com-
mission is included in a preliminary contract of sale be-
tween the owner and the proposed purchaser, by the terms
of which a commission "for making the trade" is to be
paid only in the event "it is closed," a verdict in favor
of the broker suing for such commission is not demanded,
when there is evidence that the would-be purchaser declined
to complete the sale, upon the ground that she had been
advised that the title to the real estate in question was de-
fective. Nutting & Co. v. Kennedy, 16 Ga. App. 569, 85
S. E. 767.
To entitle a sales agent to commissions in a case where
the sale has not been consummated, it must therefore be
made to appear that he has performed the whole duty or
service required of him under his contract, except in so far
as he has been prevented by the conduct of the owner.
Roberts v. Prater & Forrester, 29 Ga. App. 245, 114 S. E.
645.
A real-estate agent may earn commissions under this
section even when a sale is not actually consummated, but
he must procure a purchaser who is ready, willing, etc.,
or else he is not entitled to a commission. Floyd & Lee
v. Boyd, 16 Ga. App. 43, 48, 84 S. E. 494.
What Constitutes a Sales Agent. — The mere fact that in
a contract between an owner and a broker, listing prop-
erty for sale, use is made of the words "to sell," does not
change the status of the agent thus employed from that of
a broker to a sales agent, so as to render inoperative the
provision of this section, that the broker's commissions
are earned when, during the agency, he finds a purchaser
ready, able, and willing to buy, etc. Roberts v. Prater &
Forrester, 29 Ga. App 245, 114 S. E. 645.
Same — Effect of Words "To Sell." — It is possible, how-
ever, for the owner, by the contract of employment (as
was done here), to appoint, not a broker, but an exclusive
sales agent, so that the latter will be entitled to commis-
sions only upon consummated sales, and not upon mere ex-
ecutory contracts as contemplated by the provisions of this
section. Roberts v. Prater & Forrester, 29' Ga. App. 245,
114 S. E. 645.
Effect of Agents Acquiescence in Rescission of Contract.
— A real estate agent is not entitled to commissions for
the sale of land, where, prior to the completion of the sale,
the parties disagree as to the terms of the sale and it is
agreed between them that the transaction be considered at
an end, if the agent acquiesces in such rescission of the con-
tract of sale, even though the owner of the land subse-
quently places it in the hands of another agent who sells
it on practically the same terms to the purchaser secured
by the first agent; unless fraud or bad faith be shown.
Girardeau & Saunders v. Gibson, 122 Ga. 313, 50 S. E. 91.
III. PLEADING AND PRACTICE.
Sufficiency of Petition. — Allegations in suit by broker for
commissions were sufficient under the terms of this section
against demurrer. Payne v. Pouder, 139 Ga. 283', 285, 77
S. E. 32; McMath Plantation Co. v. Allison & Co., 26
§ 3588
PRINCIPAL AND AGENT
§ 3588
Ga. App. 744, 107 S. E. 420; McKenzie v. Patterson, 27
Ga. App. 465, 109 S. E. 174.
A commission on the sale of real estate listed with dif
— When the contract is for a year, and the em-
ployer wrongfully discharges the agent before
ferent brokers and sold by one of them was not recoverable the end of the year, the agent may either sue im-
mediately for any special injury from the breach
of the contract, or, treating the contract as re-
scinded, may sue for the value of the services
rendered, or he may wait till the expiration of
the year and sue for and recover his entire
wages.
by another not having exclusive agency, under the facts
alleged in the petition. Craigmiles v. Steyerman, 27 Ga.
App. 14, 107 S. E. 386.
The petition as amended did not set out a cause of ac-
tion, the allegation that "plaintiff was the procuring cause
of the sale" being a mere conclusion of the pleader, not
sustained by the facts stated in the petition and the court
did not err in dismissing it on general demurrer. Craig-
miles v. Steyerman, 27 Ga. App. 14, 107 S. E. 386.
Petition alleging contract for commission under this sec-
tion from first payment and a first payment stated a cause
of action. Euckey v. Daniels, 25 Ga. App. 164, 102 S. E.
902.
Necessary allegations in suit for commissions, (under this
section) solvency of purchaser accepted by principal and
afterwards refusing to comply with contract should be al-
leged. Wilson v. Verner, 12 Ga. App. 511, 77 S. E.
656; Harvid v. Wilson Brothers, 11 Ga. App. 156, 74 S.
E. 845.
Under this section a petition alleging efforts by a broker
to sell property, and that he interested certain persons and
by his efforts created a demand for the property, making it
possible for the owner to sell to one not alleged to have
been interested by the broker, did not state a cause of ac-
tion. Corker v. Simmons, 26 Ga. App. 515, 106 S. E. 558.
By virtue of this section where a suit for a commission
on a sale of land is based upon a contract authorizing the
plaintiff to sell the land for the defendant for a fixed price
per acre within a specified time, and it does not appear
from the petition that the plaintiff procured a purchaser
ready, able, and willing to buy at the price stipulated, or
that during the life of the contract there was such inter-
ference on the part of the defendant as to prevent a sale
of the property, or any secret agreement, collusion, or mu-
tual understanding ^ between the defendant and the pro-
spective buyer, while negotiations are pending, to delay the
consummation of the trade until after the expiration of the
contract, the petition is subject to general demurrer, even
though it be alleged that immediately after the expiration
of the contract (time being of the essence) the defendant
sold the property to one who had been negotiating with the
plaintiff. Price v. Cocke, 23 Ga. App. 578, 99 S. E. 47.
This being a suit to recover commissions alleged to be
due under a broker's contract, under this section, and the
petition failing to show that the plaintiff produced a pur-
chaser who was ready, able, and willing to buy the prop-
erty placed in his hands for sale, on the terms prescribed
by the owner, the court did not err in dismissing the pe-
tition, on general demurrer. Montgomery v. Lester, 25
Ga. App. 660, 104 S. E. 28.
In a suit for commissions under this section where the
petition showed that the broker procured an offer to buy
on terms different from those authorized it was demurra-
ble. Parker v. Stubbs, 139 Ga. 46, 48, 76 S. E. 571.
Burden of Proof.— Under the general rule stated in this
section, ordinarily the burden of showing all the require-
ments recited is on the broker, in a suit by him for com-
missions. But if the cystomer procured by the broker
is accepted by the principal, the burden will be upon the
latter to show that such purchaser was not able to comply
with the contract, if he relies on that defense. Prinizy
v. Bush, 129 Ga. 479, 59 S. E. 259.
Evidence. — In view of the testimony of the plaintiff (a
broker serving for commissions) and defendant the plain-
tiff had earned his commission as provided by this section.
Davis v. Davis, etc., Co., 23 Ga. App. 577, 99 S. E. 60.
See also, McKenzie v. Patterson, 27 Ga. App. 465, 109
S. E. 174.
Commission agreed to be paid broker to procure pur-
chases, not recoverable from principal who made exchange
proposed by him under facts of the case by virtue of this
section upon the theory that the broker had furnished a
purchaser ready, able, etc. Drew v. Cone, 19 Ga. App.
704, 91 S. E. 1068.
Question for Jury.— Issue whether contract as to com-
missions applied to goods accepted but not delivered, was
for jury, not court. Interstate Chemical Corp. v. Slade
20 Ga. App. 776, 93 S. E. 422.
"Where the services of a broker, as well as those of
another broker, have conjointly contributed to the success-
ful termination of negotiations resulting in the sale of
real estate for an owner, it becomes a question of fact as
to which broker was the proximate, predominating, and
procuring cause of the sale. Nicholson v. Smith & Son
29 Ga. App. 376, 115 S. E. 499.
Cross References. — As to presumption when wages pay-
able at a stipulated period and effect of contract showing
different intent, see § 3133. As to entire or severable
contracts, see § 4228. As to right of suitor for wages to
prosecute two actions in this state at same time, for same
cause, and against same party, see § 4331. As to implied
obligations to pay for services, see § 5513. As to breach
of contract by principal, see 1 Cum. Dig. 273.
Editor's Note — The rule as laid down in this section is
taken /from the summary of Mr. Smith in his book, Mas-
ter and Servant, p. 95. Section 2217 of the Code of
1882 is almost identical with this section. The only dif-
ference is that where the word "agent" is used in this
section, the word "overseer" is used there. This change
first appeared in the Code of 1895. The reason for §
2217 of the Code of 1882 was set out in Putney v. Swift,
54 Ga. 266, 268, where the court said, speaking of over-
seers, "As they were a large and influential class under
our old system special rules might be, for reasons of pub-
lic policy, applicable to them." The same case held the
rule laid down by § 2217 of the Code of 1882 to be an
unfair one, but this seems to have been remedied by the
change in the 1895 Code, set out above.
When Section Applicable. — This section applies where
the servant had actually entered upon the performance of
the duties undertaken and was discharged. Putney v.
Swift, 54 Ga. 266, 267.
There being no allegation in the petition and nothing
in the evidence to show that the term of service had ex-
pired and that the servant was suing to recover his entire
damages or that he was suing for any special injury for a
breach of the contract, the court did not err in treating
the plaintiff's case as one based upon quantum meruit un-
der this section and in charging the jury accordingly.
Silverthorne v. Arkansas, etc., Ry. Co., 142 Ga. 194, 197,
82 S. E. 551.
This section of the Code held not applicable where A
and B contract that A shall serve B as a clerk for four
months at a specified rate per month, and B refused, on
application of A, to permit him to enter on the work, A
has a right to recover, not his four months' wages, but
the damages which have come to him from B's breach of
contract. Putney v. Swift, 54 Ga. 266.
Suit for Damages on Account of Breach — Ex Contractu.
— It was held under this section that an employee's suit
for damages on account of a breach of contract by dis-
charge was an action ex contractu. Cason v. Tye, 9 Ga.
App. 325, 71 S. E. 593.
Same — Before Term of Hiring Expired "Though suit
[for breach of a contract of employment] be brought be-
fore the term of hiring has expired, yet the recovery may
embrace all the damages down to the expiration of the
term, the trial being made after the whole of such dam-
ages became susceptible of definite proof — that is, after
the term expired." Georgia, etc., Ry. Co. v. Parsons, 12
Ga. App. 180, 76 S. E. 1063.
Rule of damages and measure of damages applicable to
this case, where one party agreed to procure as many
teams as he may be able to purchase and to haul logs for
another at a given rate of compensation per hundred feet
for a definite period and he entered into the perform-
ance of the contract, and the other party accepted the
teams so purchased and put to work as fulfilling the terms
of the proposal, the contract became binding, and the sec-
ond party breached the contract, are substantially the same
as those mentioned and outlined in this section and §
3589. Mimms v. Betts Co., 9 Ga. App. 718, 721, 72 S
E. 271.
Tax Collectors.— If the evidence of the plaintiff that there
was a contract for division of commissions between tax
investigators be true, he appears to be entitled to the third
of the remedies provided by this section. Roberts v. Al-
len, 31 Ga. App. 660, 669, 122 S. E. 86.
Where there was a contract for the division of commis-
sions between tax investigators and one investigator col-
lected taxes but refused to pay petitioner his share of the
commission, it would appear that the principles controlling
is analogous to that found in this section. Roberts
§ 3588. (§ 3016.) Suit on breach of contract. I Allen, 31 Ga. APP. 660, 669, 122 S. E. 86.
[ 983 ]
§ 3589
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3593
§ 3589. (§ 3017.) Subsequent earnings in
mitigation. — When an agent has been improp-
erly dismissed before the expiration of his time,
earnings which were realized or might have
been realized by him up to the end of the term
should go in mitigation of damages.
As to presumption when wages payable at a stipulated
period and effect Ojf contract showing different intent, see
§ 3133.
Editor's Note. — The principle laid down in this sectioh
which first appeared in the Code of 1895 is based upon
the decision in the case of Ansley v. Jordan, 61 Ga. 483,
488, decided in 1878. The decision in the case cited above
it almost identical with this section.
In General The regular measure of damages is subject,
to diminution under this section by any amount which the
proof shows the agent profited or in the exercises of rea-
sonable diligence should have profited by reason of his re-
lease from the performance of the service. Realty Co. v.
Ellis, 4 Ga. App. 402, 61 S. E. 832, 834.
Damages not diminished by probable commissions, where
contract was broken by refusal to let employee continue
work unless he would accept commissions in lieu of salary.
Americus Gro. Co. v. Roney, 129 Ga. 45, 58 S. E. 462.
See § 3588 and notes thereto.
§ 3590. (§ 3018.) Illegal purpose. — No rights
can arise to either party out of an agency cre-
ated for an illegal purpose.
Cross References. — As to void contracts, see § 4251. As
to duties and corresponding liabilities of principal to agent
in general, see 1 Cum. Dig. 271, 1 Enc. Dig. 221.
Principal may recover futures money deposited with his
agent for speculation, despite this section, as the action
was not one to enforce an illegal contract, but to recover
money in the hands of agents belonging to their principal.
Clark, etc., Co. v. Brown, 77 Ga. 606, 611. See notes of
this case under § 3582.
§ 3591. (§ 3019.) Effect of ratification.— A
ratification by the principal relates back to the
act ratified, and takes effect as if originally au-
thorized. A ratification may be express, or im-.
plied from the acts or silence of the principal.
A ratification once made can not be revoked.
I. General Consideration of Ratification.
II. When Ratification Relates Back.
III. Implied Ratification.
Cross References.
For full treatment of this subject, see 1 Cum. Dig. 402;
1 Enc. Dig. 266 et seq.
I. GENERAL CONSIDERATION OF RATIFICATION.
Acts Subject to Ratification. — An act can not be ratified
unless done for and in behalf of the person adopting it
and attempting to ratify it. Render v. Jones Mercantile
Co., 33 Ga. App. 394, 126 S. E. 159.
The principal can not ratify what he could not author-
ize. See Harrison v. McHenry, 9 Ga. 164, 170; Ozburn
v. Woolworth, 106 Ga. 460, 32 S. E- 581.
Ratification Must Be Entire. — See § 3593, and notes
thereto.
Must Be with Knowledge of Facts. — Ratification of an
unauthorized act of an agent, to be binding on the prin-
cipal, must be made with full knowledge, on the part of the
principal, of all material facts relating to the act in ques-
tion. Ludden, etc. v. McDonald, 117 Ga. 60, 43 S. E.
425; American Harrow Co. v. Dolvin, 119 Ga. 186, 45
S. E. 983; Dolvin v. American Harrow Co., 125 Ga. 699,
54 S. E. 706; 33 Ga. App. 642, 651, 127 S. E. 892. For
many other cases supporting this statement, see 1 Cum.
Dig. 307, 308, 1 Enc. Dig. 269.
Ratification Must Be Unconditional. — See Render v. Jones
Mercantile Co., 33 Ga. App. 394, 126 S. E. 159.
Ratification Cures Mistake. — A contract made by an
agent for his principal is binding on the latter, though a
mistake has been made therein by the agent, if such con-
tract be ratified and acted on by the principal. Southern
R. Co. v. White, 108 Ga. 204, 33 S. E. 952. See also,
Whitley v. James, 121 Ga. 521, 523, 49 S. E- 600.
Ratification of Act of Volunteer Agent. — A ratification
of the act of one who volunteers to act as agent is valid
under this section. Goode & Son v. Rawlins, 44 Ga. 593,
597.
Question for the Jury. — "Whether or not a ratification
has resulted is usually a question of fact to be determined
by the jury." Thompson v. Neely & Wilcox, 32 Ga. App.
131, 133, 123 S. E. 171; Mendal v. Converse & Co., 30
Ga. App. 549, 559, 118 S. E. 586; Gray v. Bass, 42 Ga.
271; Burr v. Howard, 58 Ga. 564.
II. WHEN RATIFICATION RELATES BACK.
As a general rule ratification relates back to the act rat-
ified under this section, except where there is an interven-
ing equity. Atlanta Buggy Co. v. Hess Spring, etc., Co.,
124 Ga. 338, 342, 52 S. E. 613; Bridwell v. Gate City
Term. Co., 127 Ga. 520, 531, 56 S. E- 624; Mendel v.
Converse & Co., 30 Ga. App, 549, 555, 118 S. E. 586;
Coursey v. Naval Stores Co., 22 Ga. App. 538, 96 S. E.
397. For other cases, see 1 Enc. Dig. 308.
The ratification does not affect antagonistic rights of
others acquired between the unauthorized act on its ratifi-
cation. Dalton Buggy Co. v. Wood, Son & Bro., 7 Ga.
App. 477, 67 S. E. 121. See also, Evans v. Coleman, 101
Ga. 152, 28 S. E. 645; Graham v. Williams, 114 Ga. 716,
40 S. E. 790.
III. IMPLIED RATIFICATION.
In General. — It is well settled that it is not essential that
the principal should expressly ratify by word or writing;
it may be done by implication or by the subsequent acts
or conduct of the parties, tinder this section. Bush v.
Fourcher, 3 Ga. App. 43, 49, 59 S. E- 459.
Ratification by Failure to Repudiate. — Ratification pur-
suant to the provision of this section will be in/ferred where
the agent has notified the principal of his act and the prin-
cipal has not repudiated it. Unless the principal repudiates
the act promptly or within a reasonable time, a ratification
will be presumed. Thompson v. Neely & Wilcox, 32 Ga.
App. 131, 133, 123 S. E. 171; Pilcher v. Smith, 31 Ga.
App. 606, 121 S. E. 701; Whitley v. James, 121 Ga. 521,
49 S. E. 600; Brooke & Co. v. Cunningham Bros., 19 Ga.
App. 21, 90 S. E. 1037.
Ratification by Tacit Consent. — If one in the presence of
the principal, sell goods of the latter, as his agent, without
objection, the tacit consent of the principal will be presumed
and will bind him. Owsley v. Woolhapter, 14 Ga. 124;
Crockett v. Brick Co., 95 Ga. 540, 21 S. E. 42.
Ratification by Receipt of Benefit. — An unauthorized
contract made by an assumed agent, or by a real agent in
excess of his authority, becomes obligatory upon his prin-
cipal if the latter receives the benefit of the contract. Cour-
sey v. Naval Stores, 22 Ga. App. 538, 96 S. E- 397; Bank
v. Central Bank, 1 Ga. 418; Haney & Co. v. Hightower,
Inst., 113 Ga. 2&, 38 S. F. 761; Swearingen v. Virginia-
Carolina Chemical Co., 19 Ga. App. 658, 91 S. E- 1050;
Hixon v. Henkle, 156 Ga. 341, 346, 118 S. E. 874. See 1
Cum. Dig. 304, 1 Enc. Dig. 267.
But a principal already entitled to possession of property
is not bound by an unauthorized agreement by . which the
principal is put in possession thereof; nor by retaining pos-
session will he be charged with a ratification. Baldwin Fer-
tilizer Co. v. Thompson, 106 Ga. 480, 32 S. E- 591.
Implied by Bringing Action on Contract. — See 1 Cum.
Dig. 306, 1 Enc. Dig. 268.
§ 3592. (§ 3020.) Of mingling goods.— An
agent, by willfully mingling his own goods with
those of his principal, does" not create a tenancy
in common, but if incapable of separation the
whole belongs to the principal.
Cross References. — As to mingling of goods, see 1 Enc.
Dig. 234. As to confusion of goods, see 1 Cum. Dig. 810,
1 Enc. Dig. 250. As to validity of warehouseman's receipt
given where property is mixed, see § 2915.
In General. — It was held by virtue of this section that
where one fraudulently, wilfully or wrongfully mixes or
confuses his goods with those of another and can not dis-
tinguish his own, he will lose them; but where he does so
innocently or by mistake, if he can distinguish them or
show their value or their proportion of value to the whole,
he ought in equity to be allowed to do so. The question
is for the jury. Claflin & Co. v. Continental Jersey Works,
85 Ga. 27, 11 S. E. 721.
A special agent, by mingling his own goods with those
of his principal can not create a tenancy in common. Hall
v. Page, 4 Ga. 428.
ARTICLE 2.
Rights and Liabilities of Principal as to Third
Persons.
§ 3593. (§ 3021.) Principal, how far bound.
—The principal is bound by all the acts of his
[ 984 ]
§ 3593
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3594
igent within the scope of his authority; if the
agent exceeds his authority, the principal can not
-atify in part and repudiate in part; he must
adopt either the whole or none.
Cross References.— As to liability of principal for acts
}f agent within the scope of his authority, see 1 Cum. Dig.
303, 1 Enc. Dig. 266. As to whether principal is bound
for 'neglect and fraud, see § 3601. As to effect of payment
of money to agent, see § 4311. As to liability of a part-
ner for acts of another partner, see § 3180.
Editor's Note.— This section should be construed with
§ 3595, as it will be seen, that said section deals with the
extent of the agent's authority, while this section provides
that an agent shall bind his principal by any act within the
scope of his authority. See First Nat. Bank v. Nelson &
Co., 38 Ga. 391, 401; Byne v. Hatcher, 75 Ga. 289, 293.
§ 3595 defines what that scope is. In other words what an
agent does in the line of duty devolved upon him by his su-
perior, will make the latter responsible, under this section.
See Maddox v. Cunningham, 68 Ga. 431, 434.
Proof of Agenfs Authority.— It was held under this sec-
tion that the authority of an agent in a particular instance
need not necessarily be proved by express contract, but it
may be established by the habits, conduct, and course of
business of the principal. If one thus holds out to another
that his agent possesses certain authority, and this induces
or influences others in their dealings with the agent, the
principal is estopped to deny that the agent has the au-
thority which, as reasonably deducible from the conduct of
his principal, the agent apparently possesses. Germain Co.
v. Bank, 14 Ga. App. 88, 80 S. E. 302.
Acts within Scope of Authority — Guarantee of Stock. —
Under this section and § 3598 it was held that an agent
authorized to sell mules in behalf of his principal has au-
thority to agree with a purchaser that if a mule which ap-
pears to be sick does not recover, the seller will repay the
purchase-money. burner Brothers v. Manley, 4 Ga. App.
215, 80 S. E. 680. It would seem that a like rule would ap-
ply to other live stock. — Ed. Note.
Same — Use of Principal's Funds. — By virtue of this sec-
tion where an owner of cotton shipped the same to factors,
and as an agent of another shipped cotton of his principal
to the same factors, he could not, without special author-
ity, authorize the factors to use money standing to the
credit of the principal on the books of the factors to cover
any deficit in his accounts or in his margins when the value
of his own cotton shipped to the factors became less than
the advances of the latter. This is true, however general
and broad his power as agent may have been, unless he was
expressly authorized by his principal to use the jfunds of
the latter for the purpose indicated. Whiteley v. Garrett,
152 Ga. 437, 110 S. E. 209.
Same — Contract for Collection of Note. — It was held un-
der this section that an agent to procure a competent attor-
ney to collect a note, though said note is without negotia-
ble words, is clothed with power to make the contract for
its collection, unless his agency be restricted, and that re-
striction be made known to the attorney at the time the
contract for collection is made. Barclay v. Hopkins, 59 Ga.
562.
Same — Contracts of Superintendents of Schools. — Where
a corporation was organized, not only to build a school-
house, but also to supervise and carry on a school, when
it appointed and held out to the world its superintendent as
general agent, it became liable under this section for the
contracts made by such agent within the scope of its busi-
ness entrusted to him, including not only teaching, but also
the making of such publications as would advance the in-
terests of the academy entrusted to him. Georgia Military
Academy v. Estill, 77 Ga. 409.
Same — Bank Vice President Receiving Deposits— Under
this section it was held that the bank will not be heard to
plead, under the facts of this case, that its vice-president
exceeded his authority as such officer in receiving the spe-
cial deposit for the bank. Marietta, etc., Banking Co. v.
Faw, 31 Ga. App. 507, 121 S. E. 244.
Same — Agreement of Warehouse Agent. — It was held un-
der this section and §§ 3595 and 3598 that if a warehouse
company placed an agent in charge of its warehouse for
the purpose of dealing with the public, and as such he had
authority to receive, weigh, and give receipts for cotton,
making a charge of fifty cents for thirty days, which other
evidence showed included a charge for insurance, his agree-
ments within the scope qff his authority would bind the
company. Farmers Ginnery & Mfg. Co. v. Thrasher, 144
Ga. 598, 81 S. E. 804.
Same — Receiving Less than Amount of Execution. — By
virtue of this section it was held that where less than the
amount of an execution is received from one of joint de
fendants therein, under an agreement made
by the plaintiff that the payment thus received shall relieve
that defendant from further liability, the agreement will
discharge the other defendants; but such an agreement by a
sheriff, made without authority from the plaintiff, will not
have that effect. Sv/icord v. Waxelbaum, 23 Ga. App. 297,
97 S. E. 891.
Same — Instruction that Principal Liable for Acts Done
"as the Servant or Agent of Defendant." — The judge
charged the jury that if the person in charge of the de-
fendant's car at the time of the injury was driving it "as
the servant or agent of the defendant," the defendant would
be responsible for any negligence of which the driver might
be guilty. lie did not amplify this statement by adding
that such alleged acts of negligence by the servant must
have been done in the prosecution of or within the scope
of the master's business. It was held that such a charge can
not be accounted as reversible error; for, while a master is
bound by the acts of his servant only when the latter is
acting within the scope of his authority, under this section
and § 4413, still, since the charge limited the accountabil-
ity of the master for the negligence of the servant to his
acts when done "as the servant or agent of the defendant,"
this should be taken as the equivalent of a statement that
the acts must have been done within the scope of the mas-
ter's business. Collier v. Schoenberg, 26 Ga. App. 496,
106 S. E. 581.
Acts Beyond Scope of Authority. — A principal is not
bound by the acts of his agent when these acts are beyond
the scope of his authority, and the person dealing has no-
tice thereof under this section and §§ 3576 and 3595. Cot-
ton States Life Ins. Co. v. Scurry, 50 Ga. 49, 52.
Same — Truck Driver Inviting Another to Ride. — It was
held under this section and § 4413 that a truck driver em-
ployed by the owner of the truck to deliver goods acts out-
side the scope of his employment when he, for his .own
pleasure and without the knowledge of his employer, in-
vites another to ride on the truck; and the employer is not
liable to the driver's guest for injury caused by negligence
of the driver. Morris v. Fruit Co., 32 Ga. App. 788, 124
S. E. 807.
Same — Sale on Credit. — In view of this section a pur-
chaser is charged with notice that an agent is only author-
ized to sell for cash, a sale on credit may be treated as
void by the principal. Whitley v. James, 121 Ga. 521, 49
S. E. 600.
Special Agents. — See § 3595 and notes.
Ratification Must Be Entire. — As will be seen from the
latter part of this section, a principal can not ratify in
part and repudiate in part. For cases supporting this state-
ment, see 1 Cum. Dig. 303 ; 1 Enc. Dig. 266. For ratifica-
tion generally, see § 3591. — Ed. Note.
Therefore, where an unauthorized agent collects the en-
tire amount owing on a note, and the principal accepts a
portion of the proceeds and consents that the person making
the collections may use the remainder for a short time, the
principal will be held to have ratified the collection in toto.
Roberts v. Bank, 20 Ga. App. 221, 92 S. E. 1015.
The same rule applies where an agent to rent who has
no implied power to bind the landlord to a provision that
the tenant shall make repairs to be paid for out of the rents
accruing, thus exceeds his authority. Sikes v. Carter, 30
Ga. App. 539, 118 S. E- 430. Likewise the purchaser of
an unexpired term who took possession by electing to hold
under a lease would be held to have assented to its terms
as he can not assent in part and repudiate in part under
this section. Harms v. Entelman, 21 Ga. App. 295, 296,
94 S. E. 276.
And so with a bank in ratifying the acts of its vice-presi-
dent as to receiving a special deposit. Marietta, etc., Bank-
ing Co. v. Faw, 31 Ga. App. 507, 121 S. E. 244.
But a seller's partial acceptance of an order given her
salesman was held not to bind her to fill unaccepted por-
tion, under this section. Dannenberg Co. v. Hughes, 30
Ga. App. 83, 116 S. E. 892.
Applied in Germain Co. v. Bank, 14 Ga. App. 88, 92, 80
S. E. 302.
§ 3594. (§ 3022.) Forms immaterial.— The
form in which the agent acts is immaterial; if
the principal's name is disclosed, and the agent
professes to act for him, it will be held to be the
act of the principal.
Cross References. — See § 3570, and notes thereto. As to
apparent authority, see 1 Cum. Dig. 294, 1 Enc. Dig. 255.
General Consideration. — This section allows latitude as
to the form in which an agent may contract, but in order
to bind his principal the name of the principal must be
disclosed, and the agent must profess to act for him. It
does not purport to authorize an agent to contract for his
r authorized ' principal in a form which would be insufficient if the prin-
[ 985 ]
§ 3595
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3595
cipal acted for himself. If it is essential that the con-
tracting party's name should appear in the writing when
the party is contracting for himself, it is also necessary
where he contracts through an agent. Moore v. Adams,
153 Ga. 709, 718, 113 S. E. 383.
President. — It was held under this section that a con-
tract by one described as president of an association indi-
cated an individual undertaking rather than an agency.
Candler v. De Give, 133 Ga. 486, 66 S. E. 244.
Administrator. — An executory contract between "F. C.
Miller, administrator of the estate of E. P. Miller," and
H., properly construed, was an agreement by F. C. Mil-
ler in his representative capacity, under this section and
§ 3570. Miller v. Hines, 145 Ga. 616, 89 S. E. 689.
General Manager. — It was held under this section that a
contract signed by a person who adds after his signature
the words "general manager," is not the individual under-
taking of the person signing, if the contract shows on its
face that it was made in beharf of another; or if, in a
suit for its breach, this fact appears by extrinsic evidence.
Raleigh, etc., R. Co. v. Pullman Co., 122 Ga. 700, 50
S. E. 1008.
J. S. Agent for G. J. — It was held under this section
and § 3611 when two notes were given to the plaintiff, for
cotton seed, for Green J. Jordan's plantation, and signed,
"J. Spradley, Agent for Green J. Jordan." That this
was a contract of Jordan, the principal, and not the con-
tract of Spradley, the agent; the more especially, as the
evidence in the record discloses the fact, that the agency
was made known to the payee of the note at the time
they were given. Tiller v. Spradley, 39 Ga. 35.
Trustee. — It was held under this section that a deed
made by a trustee under the Act of 1853 (§ 4032) and
signed by him as "trustee of M. R." did not bind the
trustee individually as to the warranty. Shacklett v. Ran-
som, 54 Ga. 351, 355.
Parol Evidence. — It was held under this section and s
3611 that it was competent to show by parol evidence that
the contract nominally that of the agent was in fact that
of the principal. Fitzgerald Oil Co. v. Farmers Supply
Co., 3 Ga. App. 212, 218, 59 S. E. 713.
§ 3595. (§ 3023.) Extent of authority.— The
agent's authority will be construed to include all
necessary and usual means for effectually exe-
cuting it. Private instructions or limitations not
known to persons dealing with a general agent
can not affect them. In special agencies for a
particular purpose, persons dealing with the
agent should examine his authority.
I. Editor's Note.
II. General Agents.
III. Special Agents.
IV. Limitations.
Cross References.
For full treatment of this subject, see 1 Cum. Dig. 267,
292, 294, 295; 1 Enc. Dig. 217, 249, 255, 257; 3 Cum.
Dig. 274. As to effect where agent is in possession with
the apparent right to sell, see § 4119.
I. EDITOR'S NOTE.
Editor's Notes. — This section embodies a sound proposi-
tion taken from the common law; that is, that the agent's
authority will be construed to include all necessary and
usual means for effectually executing it. See Stong v.
West, 110 Ga. 382, 385, 35 S. E. 693; McDonald v. Pearre
Bros., 5 Ga. App. 130, 62 S. E. 830. This applies to
both general and special agents although a general agent
has broader powers than one selected to do a particular
act. See Bass Co. v. Granite City Co., 119 Ga. 124, 126,
45 S. E. 980. See also, John Flannery Co.' v. James, 13
Ga. App. 425, 428, 79 S. E. 912; Hopkins & Co. v. Ar-
mour & Co., 8 Ga. App. 442, 446, 69 S. E. 580; Wise v.
Mohawk Rubber Co., 23 Ga. App. 255, 98 S. E. 100;
Calloway v. Barmore, 32 Ga. App. 665, 678, 124 S. E. 382.
This section should be construed with § 3593. It will
be seen from that section that an agent binds his prin-
cipal for all acts within the scope of his authority.
Where an agent's authority is conferred and defined in
writing, the scope or extent of such authority must be de-
termined from the terms of the writing, and is to be de-
termined and construed by the court. See Findlay Brick
Co. v. American, etc., Co., 18 Ga. App. 446, 89 S. E. 535.
II. GENERAL AGENTS.
Definition. — A general agency exists where there is a
delegation of authority to do all acts in connection with a
particular trade or business. Bacon v. Dannenberg Co., 24
Ga. App. 540, 101 S. E. 699.
[986 ]
How Long General Agency Continues. — Whenever a
general agency has been established for any purpose, all
persons who have dealt with the agent have a right to as-
sume that his authority to deal with them in behalf of his
principal continues, until notice, express or implied, has
been conveyed to them that the agency has been revoked.
Bacon v. Dannenberg Co., 24 Ga. App. 540, 101 S. E. 699.
Agent with Authority to Adjust and Collect Accounts. —
Where an agent with authority from his principal to "ad-
just" and "collect" accounts is sent by his principal to col-
lect an alleged indebtedness due the principal under a par-
ticular contract, which contract contemplates that the debtor
might under some circumstances turn back to the creditor
goods purchased from the creditor under the contract, he is
a general agent for the purpose of adjusting and collecting
the indebtedness, and it is apparently within the scope of
his authority to accept from purchasers of the debtor goods
of the character bought by the debtor under the contract
from his creditor, the agent's principal, and also to release
the debtor from further liability under the contract, and also
to accept payment in release of all liability under the con-
tract of guaranty from the guarantor; and, although the
agent may not have actually possessed such authority, a set-
tlement by way of release, so made with one of the guar-
antors, without knowledge of such limitation, is binding
upon the agent's principal, under this section. Raleigh Co.
v. Royal, 30 Ga. App. 706, 119 S. E. 339.
Power to Purchaser Includes Power to Execute Note. —
An agent having authority to purchase fertilizer for a com-
pany, it will be presumed by virtue of this section that he
had authority to execute in behalf of the company a note
for the payment of the purchase price. Swift Co. v. Daw-
son Co., 24 Ga. App. 625, 627, 101 S. E- 754.
Factors. — A factor for the sale of goods is a general
agent for that purpose and can not, as against the owner,
pledge or mortgage them to a third party, to secure advances
made on his own account. First Nat'l Bank v. Nelson &
Co., 38 Ga. 391.
And it was held under this section that according to the
evidence in this case, the drawing of foreign bills of ex-
change by the defendants, as the factors and shipping agents
of the plaintiff, was the necessary and usual means to ena-
ble them, as such agents, to obtain the proceeds of his cot-
ton, in sterling bills. Jones v. Lathrop & Co., 44 Ga. 398,
412.
Cotton Factor's Agent. — A cotton factor's agent, who is
authorized to solicit shipments of cotton to his principal,
is a general agent for that purpose, and is presumptively
authorized to make terms upon which the cotton shall be
shipped, received, stored, sold, and handled by his principal.
John Flannery Co. v. James, 13 Ga. App. 425, 79 S. E-
912.
Drummer's Authority as to Effecting Insurance on
Goods Ordered. — It was held under this section that where
it is a custom of wholesalers to effect insurance on goods
shipped by them, when requested or instructed so to do by
their customers, an ordinary drummer or commercial trav-
eler, who by the terms of his employment is authorized to
receive and transmit orders but not to close contracts, has
apparent authority to receive and transmit instructions as
to effecting insurance on goods ordered through him. Mc-
Donald v. Pearre Bros. & Co., 5 Ga. App. 130, 62 S. E.
830.
Release from Obligation by Salesman. — An agent or
representative whose duties are merely to sell goods for his
principal and collect therefor has no apparent authority
under this section to release any one from an obligation
due to the principal. Morgan v. Weil Co., 31 Ga. App. 611,
121 S. E. 703.
III. SPECIAL AGENTS.
Duty to Investigate Authority. — According to the ver-
biage of this section, persons dealing with an agent appointed
for a particular purpose are bound to inquire as to the ex-
tent of his authority. Harris Loan Co. v. Elliott & Co.,
110 Ga. 302, 34 S. E. 1003; Germain Co. v. Bank, 14 Ga.
App. 88, 91, 80 S. E. 302; Baldwin Fertilizer Co. v. Thomp-
son, 106 Ga. 480, 32 S. E. 591; Carter v. Pembroke Nat.
Bank, 11 Ga. App. 479, 75 S. E. 824.
And a person dealing with a special agent, takes the risk
as to any extension of the agent's authority beyond that
which is thus authorized, and the burden rests upon him
to show authority from the principal for any acts of the
agent other than such usual and ordinary acts as are rea-
sonably necessary to a due performance of the particular
purpose of the agency. Wise v. Mohawk Rubber Co., 23
Ga. App. 255, 98 S. E. 100.
But it was held under this section that a purchaser of
railroad accommodations from a ticket agent was not re-
quired to communicate with the principal and verify the
agent's actual authority. Bryant v. Atlantic, etc., R. Co.,
19 Ga. App. 536. 91 S. E. 1047.
§ 3596
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3596
How Far Principal Bound. — It was held under this sec-
tion that in special agencies the rule is that if the agent ex-
ceeds the special and limited authority conferred upon him,
the principal is not bound by his acts, but they are mere
nullities, so far as he is concerned, unless he has held the
agent out as possessing a more enlarged authority. Comer
v. Foley, 98 Ga. 678, 682, 25 S. F. 671. See also, Bald-
win Fertilizer Co. v. Thompson, 106 Ga. 480, 32 S. E- 591.
Broker. — It was held under this section and §§ 3576 and
3595 that a broker is a special agent, and derives his power
and authority to bind his principal from the instruction
given to him by his principal. Clark v. Gumming & Co.,
77 Ga. 64, 67.
Authority to Agree on Price. — Where one is appointed to
sell a particular article to a particular person, this con-
fers on the special agent authority to agree on the price;
otherwise the appointment is illusory, and not real. Hop-
kins & Co. v. Armour & Co., 8 Ga. App. 442, 446, 69 S.
F. 580; Bass Co. v. Granite City Co., 119 Ga. 124, 126, 45
S. E. 980.
Authority to Sign Note. — It was held under this sec-
tion where one person authorized another to sign his name
to a note for a certain amount, and the latter, instead of
so doing, signed a note for a larger amount, the principal
was not bound thereby. King v. Sparks, 77 Ga. 285, 1 S.
F. 266.
Authority to Obtain Signature Does Not Include Power
to Contract. — It was held under this section that authority
to a special agent to obtain the signature of a seller to a
prepared written contract for the sale of a certain amount
of cotton, without more, does not include within itself au-
thority to make a parol agreement that the cotton shall not
in fact be delivered, but that the parties shall settle on the
basis of the difference between the agreed price and the
market price at the time 'for delivery. Terry v. Interna-
tional Cotton Co., 138 Ga. 656, 75 S. F. 1044.
Foreman Hiring Teams. — Foreman of a construction gang
held to be a special agent with limited powers and had no
authority to hire teams for a definite term. Eangston v.
Postal Telegraph-Cable Co., 6 Ga. App. 833, 65 S. F. 1094.
Power of Ordinary Appointed by Governor to Take
Bond. — It was held under this section that an ordinary
who was appointed by the governor to take a bond had no
authority to consent to any stipulations or conditions and
any such consent would be in excess of the power conferred
upon him. Lewis v. Board of Commissioners, 70 Ga. 486,
497.
IV. LIMITATIONS.
Editor's Note. — According to the wording of this sec-
tion, private instructions or limitations not known to per-
sons dealing with a general agent can not affect them. (See
Bacon v. Dannenburg Co., 24 Ga. App. 540, 101 S. F. 699.)
But the principal may qualify the authority of a general
agent, and will not be bound by the acts of his agent be-
yond the scope of his authority, where the person dealing
with the agent had notice of such limitations. (See Hut-
son v. Prudential Insurance Co., 122 Ga. 847, 50 S. F.
1000.)
Although the second sentence of this section mentions
only general agents, it was held under this section that so
long as a special agent does not go beyond the necessary
and usual means for executing his agency, his powers with
reference to the particular undertaking are in the nature
of those of a general agent to the extent that private in-
structions or limitations not known to the person dealing
with him can not affect them. Callaway v. Barmore, 32
Ga. App. 665, 677, 124 S. F. 382.
§ 3596. (§ 3024.) ) Failing to disclose princi-
pal.— If an agent fails to disclose his principal,
yet, when discovered, the person dealing with
the agent may go directly upon the principal,
under the contract, unless the principal shall
have previously accounted and settled with the
agent.
Cross References. — See §§ 3604, 3597 and notes thereto.
For full treatment of this subject, see 1 Cum. Dig. 295. 1
Fnc. Dig. 257. As to when an agent is responsible for
credit given, see § 3611.
In General. — The general rule with reference to holding
an undisclosed principal liable upon the contract of his
agent is stated in this section. Van Dyke v. Van Dyke,
123 Ga. 686, 688, 51 S. F- 582.
The section is a codification of the law as it stood prior
to the original Code of 1863, and is not an innovation re-
sulting from legislative enactment. Van Dyke v. Van
Dyke, 123 Ga. 686, 688, 51 S. F. 582.
Not Applicable to Contract under Seal. — The rule laid
down in this section that an undisclosed principal shall
stand liable for the contract of his agent does not apply
when the contract is under seal. Van Dyke v. Van Dyke,
123 Ga. 686, 51 S. F. 582; Gill v. Atlanta Ry. Co., 24 Ga.
App. 780, 102 S. F. 457.
Right to Proceed Not Dependent upon Diligence.— The
right to proceed against the principal, given by this sec-
tion, is not dependent on the diligence of the plaintiff in
discovering the fact of the concealed agency. Beacham
v. Coe-Mortimer Co., 30 Ga. App. 456, 118 S. F. 441;
Baldwin v. Garrett, 111 Ga. 876, 36 S. F. 966.
Where No Agency Exists or Previous Settlement Made.
— 'It was held under this section that if there was in fact
no agency, or if the agency existed, but the undisclosed
principal had "previously accounted and settled with the
agent," the plaintiff was not authorized to "go directly upon
the principal." Beacham v. Coe-Mortimer Co., 30 Ga.
App. 456, 118 S. F. 441; Price-Fvans Foundry Co. v. Bell
Tel. Co., 19 Ga. App. 264, 91 S. F. 283.
Applied to Wife as Undisclosed Principal. — If the hus-
band is acting as agent for his wife and she is simply the
undisclosed principal, of course her liability can not be
questioned any more than if he had, with her assistance,
concealed or misled the plaintiff as to the true ownership of
the property. Porter v. Terrell, 2 Ga. App. 269, 273, 58
S. F. 493. See also, Tennings v. Huggins, 125 Ga. 338,
341, 54 S. E. 169.
And where the wife retains property and enjoys it, only
slight evidence of the husband's agency in contracting the
debt for the property is required to charge her. Pinkston
v. Cedar Hill, etc., Co., 123 Ga. 302, 51 S. F. 387.
But the mere ffact that the wife is the owner of cows
which were fed upon provender furnished solely upon the
credit of her husband, was held insufficient to establish her
as the concealed principal of her husband, where there was
no evidence that he was in any way acting as her agent
when the purchase was made. Moore v. Sims, 24 Ga. App.
296, 100 S. F. 647, citing Hightower v. Walker, 97 Ga.
748, 25 S. F. 3-86; Montgomery v. Walton, 111 Ga. 840,
3*6 S. F. 202; Blount v. Dugger, 115 Ga. 109, 41 S. E.
270; Planing Mill Company v. Wilcox, 129 Ga. 522, 59
S. F. 223.
So too a wife can not be held accountable unless her hus-
band acted as her agent in the transaction, nor even then
if the fact of agency was known to the seller, and the
seller extended credit to her agent, not to her. Fisher
v. Darsey, 21 Ga. App. 583, 94 S. E. 839. In other words,
the rule is different where the principal is disclosed. See
§§ 2993, 3597 and notes thereto.
Joinder of Agent and Undisclosed Principal — Election. —
Where the plaintiff having a right to elect whether he will
sue the agent or the undisclosed principal, improperly joins
both in the same action, he may exercise the right of elec-
tion, proceed against one, and dismiss as to the other. Eip-
pincott v. Behre, 122 Ga. 543, 50 S. E. 467.
If the creditor when he ascertains that there is a princi-
pal who is liable, accepts him as the debtor, and looks ex-
clusively to him, the creditor can not afterwards receive
from the agent. Miller v. Watt, 70 Ga. 385. See 1 Enc.
Dig. 258.
If an employer is merely an agent and acts with the au-
thority of an undisclosed principal, either may be held lia-
ble, but not jointly liable, and after election to proceed
against one of them the other is released from liability.
Davis v. Memefee, 131 S. E. 527. See note of this case
under § 3613.
Illustrative Cases. — A person entering a demand for cars,
without at that time disclosing his agency for another, can
not recover the penalty there imposed where it appears that
at the time of the shipment it was disclosed that the cars
were intended solely for the use of another, and the bill
of lading was issued in the name of the true owner, but un-
der the law as embraced in this section the company might
in such case go directly against the principal, upon the
agency being disclosed. Central, etc., R. Co. v. Rabun, 21
Ga. App. 402, 405, 94 S. E. 598.
If the agent delivers the property in his own name and
his principal is undisclosed, the latter is bound by any spe-
cial contract, so far as the terms thereof are legal and bind-
ing, which is made between the agent and the carrier; but
if the company receives the goods as those of the princi-
pal, and, without the knowledge or consent of the latter,
the carrier attempts to make special contract with the agent,
the principal is not bound thereby, unless he does some
act from which the law infers a ratification. Wellborn v.
Southern R. Co., 6 Ga. App. 151, 64 S. E. 491.
In so far as the plaintiff in fi. fa. is concerned, the rul-
ing that where the original tenant, having reserved no rights
against the subtenant in the transfer of a note and having
claimed no interest in the property, never vested title in the
original tenant is not altered by the fact that the subtenant
[987 ]
§ 3597
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3599
may not have known that his note to the tenant had been
transferred to the landlord; since it appears without dispute
that the original tenant did not accept the cotton as owner,
but, even if under an assumed agency, received it only for
the landlord as his principal, undisclosed both to the subten-
ant and the claimant. Watson v. Sudderth, 32 Ga. App.
383, 123 S. E. 143.
§ 3597. (§ 3025.) Credit given to agent.— If
the credit is given to the agent by the choice of
the seller, he can not afterward demand pay-
ment of the principal.
See 1 Cum. Dig. 296, 1 Enc. Dig. 258, 7 Cum. Dig. 64.
See notes to preceding section.
Exclusive Credit to Agent Must Be Shown. — To con-
stitute an election by the seller between a principal and
agent, so that the giving credit to the agent will prevent
the seller from afterward demanding payment of the prin-
cipal, under this section, it should appear that the credit
was given exclusively to the agent. Fontaine v. Eagle &
Phenix Mfg. Co., 52 Ga. 32.
Credit to Husband — The wife could not be held account-
able under this section if the fact of agency was known to
the seller, and the seller extended credit to her agent, not
to her. Fisher v. Darsay, 21 Ga. App. 583, 584, 94 S. E.
839; Pinkston v. Cedar Hill, etc., Co., 123 Ga. 302, 303,
51 S. E. 387. See notes to preceding section.
Not Applicable where Principal Undisclosed. — The pro-
vision of this section does not apply so long as the principal
is undisclosed. Beacham v. Coe-Mortimer Co., 20 Ga. App.
456, 118 S. E- 441. See notes to preceding section.
Cited in Henderson v. Citizens First Nat'l Bank, 151 Ga.
62, 65, 106 S. E. 549.
§ 3598. (§ 3026.) Representations by agent.
— The principal is bound by all representations
made by his agent in the business of his agency,
and also by his willful concealment of material
facts, although they are unknown to the princi-
pal, and known only by the agent.
Cross References — See 1 Cum. Dig. 285. As to insurance
agents, see § 2480, and notes thereto. As to when conceal-
ment of material facts amount to fraud, see § 4114.
Presumption.— It was held under this section and § 3593
that dealers with their agents have a right to presume that
they conform to the usual rules. City Fire Ins. Co. v.
Carrugi, 41 Ga. 659, 674.
Corporations. — It was held under this section that a
corporation is bound by the fraudulent conduct of its agents,
engaged in its business and on that line cjf the business
where it puts such agent to work. All deceit, misrepre-
sentation, falsehood, in the course of the business, whereby
anybody is cheated, the corporation is responsible for. Sco-
field Rolling Mill Co. v. State, 54 Ga. 635.
Representation in Sale of Mules — It was held under this
section and § 3593 that an agent authorized to sell mules
in behalf of his principal has authority to agree with a pur-
chaser that if a mule which appears to be sick does not re-
cover, the seller will repay the purchase-money. Turner
Brothers v. Manley, 14 Ga. App. 215, 80 S. E. 680. See
§ 3593, and notes thereto.
Question of fraud is a jury question in action on agents
false and fraudulent representations to induce purchase of
mules. Johnson v. Renfroe & McCrary, 73 Ga. 138.
§ 3599. (§ 3027.) Notice to.— Notice to the
agent of any matter connected with his agency
is notice to the principal.
Cross References. — See §§ 3598, 3600 and notes thereto.
For full treatment of this subject, see 1 Cum. Dig. 308,
312; 1 Enc. Dig. 270. As to wife acting as attorney and
agent for husband, see § 2998.
In General. — Notice to an agent in the business for which
he is employed is notice to the principal. Wilensky v.
Martin, 4 Ga. App. 187, 189, 60 S. E. 1074. For complete
list of cases substantiating this statement, see 1 Cum. Dig.
308, 1 Enc. Dig. 270.
This rule is equally applicable to a corporation, etc., as to
an individual. See Holland v. McRae Oil Co., 134 Ga.
678, 68 S. E. 555; Wallis v. Heard, 16 Ga. App. 802, 803,
86 S. E. 391.
Actual Notice. — It was held under this section that actual
notice to an agent of any matter connected with his agency
is also actual notice to his principal, and is not merely
constructive notice to the latter. Prater v. Cox, 64 Ga. 706;
Hillyer v. Brogden, 67 Ga. 24; Deveney v. Burton, 110
[ 988
Ga. 56, 35 S. E. 268; Union Savings Bank v. Ellis, 110
Ga. 494, 35 S. E. 780.
Actual notice to an agent can be imputed to his principal,
but, even then, though the principal's information rests
only on the implication that the agent has imparted his
knowledge, it is impliedly actual knowledge. Wiley v. Romt,
Ins. Co., 12 Ga. App. 186, 191, 76 S. E- 1067. See the
note, in this annotation, under the catchline, "When No-
tice to Insurance Agent Imputable to Company."
Proof of Agency Prerequisite. — Whilst notice to the
agency is notice to the principal, proof of the agency is in-
dispensable; and the fact that one as father or friend gives
information or advice in reference to a land trade, does
not make such friend the agent in the sense of the above
rule. McNamara v. McNamara, 62 Ga. 201.
Must Be Connected with Agency. — It was held under this
section that in order that notice to an agent may operate as
notice to his principal, the subject-matter of the notice must
be connected with the agency. Central Ry. Co. v. Amer-
icus Con. Co., 133 Ga. 392, 400, 65 S. E- 855; Pursley v.
Stabley, 122 Ga. 362, 50 S. E. 139.
When Notice to Insurance Agent Imputable to Company.
— The principle of this section that notice to an agent is
notice to the principal applies to insurance companies. For
illustrative cases, see 1 Cum. Dig. 309, 1 Enc. Dig. 270.
Where an agent knew the status of the title to property
insured at the time of issuance of the policy, such knowl-
edge will be constructive notice to the company. Atlas
Assurance Co. v. Kettles, 144 Ga. 306, 87 S. E. 1.
The expression "constructive notice," used in Atlas As-
surance Co. v. Kettles, 144 Ga. 306, 87 S. E. 1, was not
used in its strict sense, but as meaning that knowledge of
the agent at the time of the issuance of the policy would
be imputed to his principal under this section. Liverpool,
etc., Ins. Co. v. Hughes, 145 Ga. 716, 89 S. E. 817.
Notice to Lender of Money. — Where H., holding a deed as
security for a debt, sold the land under a power of sale, and
had it struck off to himself, approached B., a money lender,
and told him that he had bought him a farm, and B., be-
ing satisfied with the transaction, let H. have the money
and took a deed to the land, executing a title bond to B.,
B. was put upon inquiry and chargeable with knowledge of
facts invalidating the sale by the sudden and unexpected
communication from H., and also by reason of the fact
that H. acted as his agent, within the provision of this- sec-
tion. Wright v. Harris, 221 Fed. Rep. 72>6, 737.
Notice to Attorney. — It may be stated generally, that
notice of facts to an attorney is constructive notice thereof
to the client himself, when it arises from, or is at the time
connected with, the subject-matter of his agency. Whitten
v. Jenkins, 34 Ga. 298. For, upon general principles of
public policy, it is presumed that the attorney has communi-
cated such fact to the client, his principal, and if he has
not, the client having entrusted the particular affair to the
attorney, the other party has a right to deem his acts and
knowledge obligatory upon the principal. Whitten v. Jen-
kins, 34 Ga. 298; Phillips v. Dobbin, 56 Ga. 617; Deveney
v. Burton, 110 Ga. 56, 35 S. E. 268. For full treatment,
see 2 Enc. Dig. 29.
And this doctrine has been applied even to a case where
the attorney had knowledge of an adverse claim to prop-
erty which was subsequently bought at an execution sale
by his wife. The court holding that if the notice of the
claim was still in the mind of the attorney at the time of
the execution sale, such knowledge would be imputable to
his wife. Faircloth v. Taylor, 147 Ga. 787, 95 S. E- 689.
Notice to Bank Officers — President. — The knowledge of a
president of a bank that certain stock had not been fully
paid up is imputable to the bank, if he, acting for it and
in its behalf, accepted a transfer of the stock to it, and it
thereunder retained the same. Fouche v. Merchants' Nat.
Bank, 110 Ga. 827, 36 S. E. 256.
But a banking corporation is not charged with notice of
facts which became known to its president while he is deal-
ing in his private capacity and in his own behalf with third
persons. Peoples Bank v. Exchange Bank, 116 Ga. 820,
43 S. E. 269; Alsabrooks v. Bank, 22 Ga. App. 693, 97
S. E. HI.
Same — Cashier. — The cashier of a bank is held out as its
general agent, for the management of its notes, and other
securities. Therefore the same rules apply as to notice as
in the case of other agents. See Bank v. Mumford, 6 Ga.
44, 83; Veasey v. Graham, 17 Ga. 99. For full treatment,
see 2 Cum. Dig. 619, 2 Enc. Dig. 273. And see 1 Enc. Dig.
270.
And it was held under this section that actual notice of
a dissolution given by one partner to the cashier of a bank,
which sues upon a note thereafter executed at the instance
Gff such cashier as the bank's representative by the other
alleged partner in the name of the partnership, and paya-
§ 3600
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3603
Bcn-
ble to the plaintiff, is sufficient notice to the hank,
nett v. Watson, 31 Ga. App. 367, 120 S. E. 802.
Same— Director.— Notice or knowledge of failure of con-
sideration of a negotiable promissory note which the di-
rector of a bank sells to it before the maturity of the pa-
per, is not imputable to the bank, when in the transaction
the seller did not act for it at all, but exclusively for him-
self, and the bank was represented by another of its offi-
cials who alone acted for it. English-American L. & T.
Co. v. Hiers, 112 Ga. 823, 3'8 S. E. 103.
Partners.— It was held under this section where, after
dissolution of a partnership, a former member of the firm,
on being approached and offered goods for sale by a trav-
eling salesman for a dealer who before the dissolution sold
goods to the firm, tells the salesman that he is no longer a
member of the firm, this is notice of the dissolution to the
dealer represented by the salesman. Franklin Buggy Co.
v. Carter, 21 Ga. App. 576, 94 S. E- 820. See note under
preceding catchline, "Same — Cashier."
Notice as to Service. — See note of Render v. Hartford
Fire Ins. Co., 33 Ga. App. 716, 127 S. E. 902, under §
3581.
Effect of Proving Want of Notice In Agent.— Proof that
there was want of notice qf a judgment against his princi-
pal, on the part of an agent is not proof of want of such
notice on the part of the principal. Eason v. Vandiver,
108 Ga. 109, 33 S. E. 873.
Where Several Agents Involved — It was held under this
section and § 5746 where it is sought to charge a principal
with notice, he is only required to offer the agent to whom
the opposite party claims he gave the notice. He need not
undertake to prove a negative by producing all of his agents,
in order to show that each did not receive the notice. Trav-
elers Ins. Co. v. Thornton, 119 Ga. 455, 46 S. E. 678.
§ 3600. (§ 3028.) Notice to agent not bind
principal, when. — Where an agent conspires with
the other party, his principal is not bound
thereby, nor charged with knowledge of facts
thus acquired by his agent.
See notes to § 3599. For full treatment of this sub-
ject, see 1 Cum. Dig. 310, et seq. ; 1 Enc. Dig. 271.
Editor's Note. — The principle enunciated in this section
which first appeared in the Code of 1895 is based upon the
decision in the case of Mayor v. Dasher, 90 Ga. 195, 16
S. E. 75.
In General.— In Faircloth v. Taylor, 147 Ga. 787, 95 S. E-
689, it is stated that notice to the agent will not be im-
puted to the principal; 1. Where it is such as it is the
agent's duty not to disclose, and 2. Where the agent's re-
lations to the subject-matter, or his previous conduct, ren-
der it uncertain that he will not disclose it, and 3. Where
the person claiming the benefit of the notice, or those
whom he represents, colluded with the agent to cheat or
defraud the principal.
When the agent departs from the scope of the agency,
and begins to act for himself and not for the principal;
when his private interest is allowed to outweigh his duty as
a representative; when to communicate the information
would prevent the accomplishment of his fraudulent scheme,
he becomes an opposite party, not an agent. The reason
for the rule enunciated in the preceding section then ceases.
Pursley v. Stahley, 122 Ga. 362, 364, 50 S. E. 139.
Effect of Fraudulent Conduct of Agent. — The rule enun-
ciated in the preceding section is modified when an agent
proves false to his principal, and at the instance of a third
party aids in the communication of false reports as to the
insurability of an applicant, for the purpose of benefiting
the applicant and of defrauding his principal. Loftin v.
Great Southern Association, 9 Ga. App. 121, 122, 70 S.
E. 353. See also, Terry v. International Cotton Co., 138
Ga. 656, 663, 75 S. E. 1044.
Illustration. — A could read and write, but was inexperi-
enced in business. B had been her attorney, and she
owed him $50. At his request, and to enable him to raise
the money, A agreed to give a note therefor. The agent
fraudulently made a note for $500, instead of $50, and
procured her to sign it. The note was made payable to
X, who had money to lend and who was a client of B. The
money was advanced on the note to B, but none was paid
over by him to A. It was held, that the lender was not
charged with notice of the agent's fraud under this sec-
tion. Pursley v. Stahley, 122 Ga. 362, 50 S. E- 139.
Cited in Terry v. International Cotton Co., 138 Ga. 656,
663, 75 S. E. 1044; Henderson v. Citizens First Nat'l Bank,
151 Ga. 62, 65, 106 S. E. 549.
diligence, and fidelity of his agent in his busi-
ness, and hence he is bound for the neglect and
fraud of his agent in the transaction of such
business.
Cross References.— See § 3129 and notes thereto. As to
officers of mutual insurance companies being agents of all
the assured, see § 2531. As to liability of one partner for
fraud of another partner, see § 3186. As to liability of
one partner for torts of a co-partner, see § 3187. As to
engagements of hirer, see § 3480. As to liability of agent
for excess of authority, see § 3613. As to liability of
principal (for neglect and fraud, see 1 Cum. Dig. 299; 1
Enc. Dig. 261.
General and Common Law Rule. — This seetion which
lays down the general rule also follows the common law.
Robinson v. Hindekoper, 98 Ga. 306, 308, 25 S, E. 440.
Liability of Agent for Nonfeasance. — While an agent is
personally liable to those injured by his misfeasance, he is
not ordinarily liable for mere nonfeasance, under this
section and § 3613. Kimbrough v. Bo&well, 119 Ga. 201,
203, 45 S. E. 977.
Rule of Bailments Distinguished. — This section and S
4413 do not vary the rule in respect to gratuitous bail-
ments, inasmuch as the degree of diligence touching such
bailments is no higher under these sections than at com-
mon law. Merchants Nat. Bank v. Guilmartin, 88 Ga.
797, 15 S. E. 831.
Acts in Line of Duty. — What an agent does in the line
of duty devolved upon him by the superior, will make the
latter responsible under this section and § 3593. Maddox
& Rucker v. Cunningham, 68 Ga. 431, 434.
If the appellant's agent for any reason fails to perform
his duty the fault is chargeable to the principal, and inures
to the benefit of the opposite party. Broussard v. Bran-
denberg, 8 Ga. App. 795, 796, 70 S. E. 159.
Conductor — Alter Ego of Carrier. — It was held under this
section that the conductor of the train is the alter ego of
the carrier with respect to the care of passengers on a
railroad train and the duty of making contracts for pas-
sage, between points on his run, with persons who are
permitted to board the train without tickets. Williamson
v. Central, etc., Railway Co., 127 Ga. 125, 56 S. E. 119.
Unintentional Trespass of Agent. — Where a trespass com-
mitted by an agent for his principal is not denied, but is
claimed to have been unintentional, it is proper to in-
struct the jury, on this issue, that "the principal is bound
for the care, diligence and fidelity o^f his agent in his busi-
ness," under this section. Crockett Brothers v. Sibley, 3
Ga. App. 554, 60 S. E. 326.
§ 3602. (§ 3030.) Injuries by another agent.
— The principal is not liable to one agent for in-
juries arising from the negligence or misconduct
of other agents about the same business; the ex-
ception in case of railroads has been previously
stated.
Cross References. — See § 3129. For full treatment of this
subject, see 6 Cum. Dig. 158; 6 Enc. Dig. 170. As to
liability of railroad company for injury to employee caused
by neglect, see §§ 2751, 2752 and 2782 and notes thereto.
Common Law and Present Rule — At common law there
could be no recovery against the principal for injuries sus-
tained by an agent from the negligence or misconduct of
other agents of the principal, engaged in the same business;
and this rule is generally in force in the State of Geor-
gia, by virtue of this section and § 3129. Barry v. Mc-
Ghee, 100 Ga. 759, 762, 28 S. E. 455; Lamb v. Floyd, 148
Ga. 357, 361, 96 S. E. 877; Crusselle v. Pugh, 67 Ga. 430;
Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737, 86 S.
E. 82.
Same — Exception. — An exception has been made to the
general rule laid down in this section in the case of rail-
road employees under §§ 2751, 2780 and 2782. Robinson
v. Hindekoper, 98 Ga. 306, 308, 25 S. E- 440; Lamb v.
Floyd, 148 Ga. 357, 361, 96 S. E. 877.
Effect of Section upon Construction of Sections 2780, 2781
and 2782. — We do not think that the construction put upon
§§ 27S0, 2781 and 2782 of the Code, is shaken at all by
this section. Thompson v. Central R., etc., Co., 54 Ga. 509.
§ 3603. (§ 3031.) Trespass of agent.— The
principal is not liable for the willful trespass of
his agent, unless done by his command or as-
sented to bv him.
§ 3601. (§ 3029.) Principal bound for neglect
and fraud. — The principal is bound for the care,
Cross References. — See 1 Cum. Dig. 301, 1
See also, § 4413 et seq. and notes thereto.
Enc. Dig. 264.
As to dcfini-
[ 989 ]
3604
LIABILITIES OF PRINCIPAL AS TO THIRD PERSONS
§ 3606
tion of trespass, see § 4485. As to engagements of the
hirer, see § 3480.
Command or Assent of Principal.— While a principal is
not, as a general rule, liable for the wilful trespass of his
agent, yet, if the trespass be committed by the principal's
command, or if it is assented to by him, he is liable under
this section. Byne v. Hatcher, 75 Ga. 289; Crocket Bros.
v. Sibley, 3 Ga. App. 554, 60 S. E- 326._
Showing Command or Assent by Ratification. — The rati-
fier of a willful tort committed by an agent becomes liable
as if he had commanded it. See § 4416, and notes thereto.
It was not error for the court, in giving in charge to the
jury the language of this section, to add, after the words
"by his command or assented to by him," the words "or
ratifies it." Crockett Bros. v. Sibley, 3 Ga. App. 554, 60
S. E. 326.-
This section and § 4413 should be construed together,
(§ 4413, provides for liability for torts by a wife, serv-
ant, etc.), so as to harmonize them and allow both to re-
main of force, in the cases to which they are applicable.
Southeastern Fair Ass'n v. Wong Jung, 24 Ga. App. 707,
708, 102 S. E. 32; Tools Furniture Co. v. EHis, 5 Ga. App.
271, 275, 63 S. E. 55; Mason v. Nashville R. Co., 135
Ga. 741, 754, 70 S. F. 225; Western, etc., R. Co. v. Tur-
ner, 72 Ga. 292, 296.
Personal Altercation. — It appearing from the plaintiffs
petition that the alleged injury arose from an assault by a
person alleged to be the manager of the defendant corpora-
tion; that the plaintiff approached the office of the corpora-
tion not for the purpose of transacting any sort of busi-
ness, but from mere idle curiosity, to hear a conversation
between the manager and a third person; that the assault
did not arise from business of the corporation or in connec-
tion with the assailant's duties as manager, but arose from
a merely personal altercation, and that the assailant left
the corporation's place of business and struck the plaintiff
on steps, which, though alleged to have been used jointly
by the corporation and by a hotel company as an entrance,
are not alleged to have been a part of the defendant's
premises, the petition does not show liability on the part
of the corporation, under this section, and the court did
not err in sustaining its general demurrer. Daniel v. Ex-
celsior Auto Co., 31 Ga. App. 621, 121 S. E. 692.
Tort by Bank Director. — The mere fact that one who com-
mits a tort is a director in a corporation does not, without
more, render the corporation liable therefor. Strecklard
v. Bank, 141 Ga. 565, 81 S. E. 886.
Agent's Habit of Making Unprovoked Assaults Known
to Principal. — Where the agent of a corporation engaged in
the business of selling certain commercial products manu-
factured by it committed an unprovoked assault and bat-
tery upon the plaintiff, inflicting upon him severe personal
injuries, the plaintiff could not maintain a suit for dam-
ages against the corporation on this account, although it
knew that the agent was a person of violent temper, and
in fact had employed him because it knew that he was a
man prone to make unprovoked attacks upon others; it not
appearing that the corporation authorized the assault, or
that it assented to the tort complained of. Murphy v. New
South Brewery, etc., Co., 145 Ga. 561, 89 S. E. 704.
Applied to Action for Malicious Prosecution. — Where it
is alleged in a suit for damages for malicious prosecution
that the prosecution was instituted by the agent of the de-
fendant, it must be proved that the agent was at that time
acting within the scope of his employment or at the direc-
tion or command of his principal. The plaintiff having
failed to prove his case as laid in his petition, the court did
not commit error in granting a nonsuit. Glass v. Brittain
Co., 21 Ga. App. 634, 94 S. E. 814.
Applied to Action for Malicious Arrest. — A principal is
not liable for a malicious arrest by its agent, which was be-
yond the scope of his authority, and neither authorized or
ratified by the principal. Fire Ass'n v. Fleming, 78 Ga.
733, 3 S. E. 420.
§ 3604. (§ 3032.) Benefit of contract to prin-
cipal.— The principal shall have advantage of his
agent's contracts in the same manner as he is
bound by them, so far as they come within the
scope of his agency. If, however, the agency
has been concealed, the party dealing with him
may set up any defense against the principal
which he has against the agent.
Cross References — See 1 Cum. Dig. 282; 1 Enc. Dig. 238.
As to right of agent to buy or sell for himself, see § 3682.
As to right of agent to make a personal profit from princi-
pal's property, see § 3583.
When Principal May Bring Suit in General. — Where a
simple contract, oral or written is made with an agent in
his own name, and the principal is undisclosed, the latter
may claim its fruits and sue upon it under this section and
§ 3596, even though the agent also might sue. Atlanta, etc.,
R. Co. v. Texas, etc., Co., 81 Ga. 602, 606, 9 S. E. 600;
Spain v. Beach, 52 Ga. 494, 496.
Telegram Sent by Agent. — Where an agent sends a tele-
gram for his undisclosed principal, the principal may main-
tain an action in his own name for damages resulting from
unreasonable delay in its transmission or delivery. Dodd
Grocery Co. v. Postal Tel. Co., 112 Ga. 685, 37 S. E. 981;
Towboat Co. v. Western Union, 124 Ga. 478, 25 S. E. 766;
Seifert v. Western Union, 129 Ga. 181, 183, 58 S. E. 699;
Rosser, etc., Company v. Darden, 82 Ga. 219, 7 S. E. 919;
Ruan v. Gunn, 77 Ga. 53.
Principal Can Not Effect Injury by Substitution. — Where
an agent makes a contract for his principal but conceals
the fact that he is an agent, the principal may claim the
benefits of the contract so far as he can do so without in-
jury to that other by the substitution o€ himself for his
agent. Planters Gin Co. v. Pitts Banking Co., 24 Ga. App.
731, 102 S. E. 183.
Failure to Disclose Name of Principal. — A principal may
sue for breach of a written contract entered into by his
agent, where the instrument disclosed on its face that the
agent was contracting as such, and fails to disclose the
name, of the principal. Washington Mfg. Co. v. Calloway,
144 Ga. 89, 86 S. E. 225.
When Agent May Bring Suit.— See § 3609 and notes
thereto.
A sale of intoxicating liquors to an agent may be alleged
as a sale to the principal. Kemp v. The State, 120 Ga. 157,
47 S. E. 548.
Indicia of Authority. — It was held under this section,
where one gives to another such evidence of the right of
selling the goods of the former as, according to the custom
of trade or the common understanding of the world, usually
accompanies the authority of disposal, or has given the ex-
ternal indicia of the right of disposing of his property, he
loses the right of following it; a sale to a fair purchaser
divests the first title, and the authority to sell, whether real
or apparent, is good against him who gave it, though the
confidence qf the principal be abused by the possessor of
such indicia. Rosser, etc., Co. v. Darden, 82 Ga. 219, 7
b. E. 919.
Applied, as to setting up defenses against conceded
principal in Savannah Trust Co. v. National Bank, 16 Ga.
App. 706, 721, 86 S. E. 49; Eovelace v. Reliable Garage,
33 Ga. App. 289, 290, 125 S. E. 877; Continental Guarantee
Corp. v. Smoke, 3'3 Ga. App. 483, 116 S. E. 14.
§ 3605. (§ 3033.) Money illegally paid, etc —
The principal may recover back money paid il-
legally, or by mistake of his agent, or goods
wrongfully transferred by the agent, the party
receiving the goods having notice of the agent's
want of authority or willful misconduct.
As to right of principal to follow money deposited by
agent in the agent's name, see § 3577. As to money paid
to an agent under mistake, see § 3608.
In General — This section introduces no new rule. It
authorizes a principal to recover back goods wrongfully
transferred by his agent, in cases where the transferee had
notice, but it does not change the rules regulating the rights
of principals against parties dealing with special agents, or
with general agents, who act beyond the scope of their
agency. First Nat. Bank v. Nelson & Co., 38 Ga. 391, 401.
Notice. — It will be noticed that the latter clause in this
section is, at best, but a negative. It does not declare that,
in cases where the party receiving the property had no no-
tice, the principal shall not recover. First Nat. Bank v.
Nelson & Co., 38 Ga. 391, 400. In the opinion of this case
the court said: We can not believe that it was the inten-
tion of the Legislature, by the negative pregnant of this
section, to contradict the express language it has used in
other parts of the Code, and especially in the very article
in which the section stands.
Applied in Bank v. Brooks, 33 Ga. App. 84, 125 S. E. 600.
§ 3606. (§ 3034.) Agent is a competent wit-
ness.— The agent is a competent witness either
for or against his principal. His interest goes to
his credit. The declarations of the agent as to
the business transacted by him are not admissi-
ble against his principal, unless they were a part
of the negotiation, and constituting the res
gestae, or else the agent be dead.
I. In General.
II. Declarations of Agent.
[ 990]
§ 3606
LIABILITIES OF AGENT AS TO THIRD PERSONS
§ 3607
A. Generally.
B. As Part of Res Gestae.
C. Where Agent Deceased.
Cross References.
For full treatment of this subject, see 1 Cum. Dig. 332,
334; 1 Enc. Dig. 291; 5 Cum. Dig. 570, 571. As to lia-
bility of principal for representation of his agent, see §
3598. As to what declarations are admissible in evidence
as part of the res gestae, see § 5766. As to what admis-
sions of an agent or attorney in fact are evidence against
the principal, see § 5779.
I. IN GENERAL.
Origin of Section. -The provisions of this section are
merely declaratory of the law existing at the time the Code
was adopted. Turner v. Turner, 123 Ga. 5, 50 S. E. 969;
Southern Express Co. v. Cohen, 13 Ga. App. 174, 177, 78
S. E- 1111. It lays down the general rule. Whidden v.
Hall, 155 Ga. 570, 572, 118 S. E. 347. _ ,
And the well settled rule of law embodied in this section
which makes an agent a competent witness either for or
against his principal, originated in the necessity of the case.
Lowrys v. Candler, 64 Ga. 237, 240.
Agent Not a Party to Suit — Competency as a Witness.
— It was held under this section that an agent not a party
to a suit is a competent witness to show his agency, not dis-
closed at the time of the transaction in controversy, al-
though his principal may be dead, and although the effect
of establishing the agency may be to make the estate lia-
ble instead of the agent individually. Lowrys v. Candler,
64 Ga. 237. For full treatment of proof of agency, see 1
Cum. Dig. 325, 1 Enc. Dig. 288. See also, post, this note,
"As Part of Res Gestae," II, B.
Admissibility of Memorandum of General Freight Agent.
—See Georgia R. v. Smith, 76 Ga. 634.
II. DECLARATIONS OF AGENT.
A. Generally.
Agent Must Be Acting for Principal. — The admission or
declaration of an agent, when acting within the scope of
his authority, is to be considered as the admission or dec-
laration of his principal. Williams v. Kelsey, 6 Ga. 365,
373; Krogg v. Atlanta & West Point Railroad, 77 Ga. 202;
1 Mich'ie's Dig. Ga. R. 293; Cable Co. v. Walker, 127 Ga.
65, 56 S. E. 108; Chero-Colo Bottling Co. v. Southern Ex-
press Co., 29 Ga. App. 656, 116 S. E. 325. See also, Hes-
ter Marble Co. v. "Walton, 22 Ga. App. 433, 96 S. E. 269.
But before the declarations are admissible some prootf of
the agency should be submitted. Colt Co. v. Wheeler, 31
Ga. App. 427, 120 S. E. 792.
Conversely, it was held under this section that the
declaration of an agent is not competent evidence against
his principal where it does not appear that such declara-
tion was made while engaged in the business of the master
or principal. Lott v. Banks, 21 Ga. App. 246, 94 S. E.
322; Evans & Ragland v. Atlanta, etc., R. Co., 56 Ga. 498;
Newton Mfg. Co. v. White, 53 Ga. 396; Nat'l Building
Ass'n v. Quin, 120 Ga. 358, 47 S. E. 962; Gainesville Mid-
land Railway v. Jackson, 1 Ga. App. 632, 635, 57 S. E.
1007.
Same — Letter by Agent. — So a letter written by a general
agent relating to matters apparently within the scope of his
agency is, when pertinent to the issue under investigation,
competent evidence in the trial of an action against the
principal. Louisville, etc., R. Co. v. Tift, 100 Ga. 86, 27
S. E. 765; Chero-Colo Bottling v. Southern Express Co.,
29 Ga. App. 656, 116 S. E. 325.
Same — Declaration Relating to Past Transaction. — It was
held under this section and § 5779 that as declarations
made by a shipping-agent of a railroad company, to the
effect that certain goods had been delivered at the point
of destination, are not within the scope of such an agent's
employment and relate to a past transaction, they are not
admissible in evidence against the company. The more es-
pecially is this true when it is apparent that the agent's in-
formation as to the matter of delivery must necessarily have
been derived from hearsay. Southern Ry. Co. v. Kinchen
& Co., 103 Ga. 186, 29 S. E. 816.
Declaration Must Be against Principal. — In Shippey
Bros. v. Owens, 17 Ga. App. 127, 134, 86 S. E. 407, it is
stated: There was nothing in the evidence rejected to make
it objectionable under this section as the evidence was not
in the nature of a declaration of an agent "against his prin-
cipal." The agent was the party to the suit, and not the
principal.
B. As Part of Res Gestae.
As to res gestae generally, see § 5766.
Res Gestae Rule. — The first portion of the last sentence
of the section was intended to declare the well-settled rule,
that the declaration of an agent, to be admissible, must be
a part ai the res gestae. Turner v. Turner, 123 Ga. 5, 9,
50 S. E. 969.
So if the admission is made dum fcrvet opus and ac-
companies the agent's act, or is so nearly connected there-
with in time as to be free from all suspicion of device or
afterthought, it is admissible in evidence as part of the res
gestae. Hester Marble Co. v. Walton, 22 Ga. App. 433,
96 S. E. 269; Southern Express Co. v. Cohen, 13 Ga. App.
174, 78 S. E. 1111; Atlantic Coast Line R. Co. v. Williams,
21 Ga. App. 453, 4 55, 94 S. E. 584; Willingham v. Ben-
ton, 25 Ga. App. 412, 103 S. E. 497; jolly v. Chattahoochee
Fertilizer Co., 28 Ga. App. 194, 110 S. E. 639; Nat'l Build-
ing Ass'n v. Quin, 120 Ga. 358, 47 S. E. 962.
But declarations made by one shown by some testimony
to have been a general agent and manager of a particular
business institution, concerning matters relating to that
business, are admissible to bind his principal during the
continuance of the agency, though made in reference to a
particular act of negotiation previously completed, and not
constituting a part of the res gestae thereof. Citizens Bank
of Tifton v. Timmons, 15 Ga. App. 815, 84 S. E. 232.
Declarations After Injury. — Statements of the engineer
three days after plaintiff was hurt as to the condition of
his engine not being part of the res gestae, they were
clearly inadmissible as declarations or admissions against
the railroad company under this section. Central Railroad
Co. v. Maltsby, 90 Ga. 630, 632, 16 S. E. 953.
And on the trial of a suit against a railroad company for
damages to the plaintiff (who was an employee of the com-
pany) caused by the negligence of his co.-employees, it was
error in the court to permit the plaintiff to testify before
the jury, that an assistant supervisor had told him, after
the injury was done, that the company felt itself under ob-
ligations to support him and his family during his life. East
Tennessee, etc., R. Co. v. Duggan, 51 Ga. 212.
Likewise it was held under this section that reports to
the general manager of a company touching a railway ac-
cident, and who was to blame therefor, made several days
after the event, by the superintendent and the conductor,
supported by the affidavit of the latter and of several other
employees, are not admissible in evidence to affect the com-
pany, whether such reports were exacted and made under
standing rules requiring the same, or under special orders
for the particular occasion, no question of notice to the
company being involved in the controversy. Carroll v. The
East Tennessee, etc., R. Co., 82 Ga. 452, 10 S. E. 163.
Declarations of Agent Standing Alone to Prove Agency.
— It was held under this section that declarations of an
agent, although made as part of the res gestae of the
transaction, are not competent, standing alone, to prove
agency, and a charge being susceptible of this construction,
and moreover not being adjusted to the evidence, was harm-
ful error. Swint v. Milner Banking Co., 30 Ga. App. 733,
119 S. E. 3'36. See also, Colt Co. v. Wheeler, 31 Ga. App.
427, 120 S. E. 792. For full treatment of proof of agency,
see 1 Cum. Dig. 325, 1 Enc. Dig. 288.
Admissions of Trustee. — See notes to § 5767.
C. Where Agent Deceased.
The words "or else the agent be dead" in this section
refer to entries made by an agent since deceased, in the
regular course of the business of his principal, or declara-
tions made by a person since deceased, against his interest,
or other instances where, under the established rules of
evidence, the declarations of a deceased person might be
admitted in evidence. Turner v. Turner, 123 Ga. 5, 50
S. E. 969. See 1 Cum. Dig. 335.
ARTICLE 3.
Rights and Liabilities of Agent as to Third
Persons.
§ 3607. (§ 3035.) Agent may act under this
Code, for principal. — Any act authorized or re-
quired to be done under this Code, by any per-
son in the prosecution of his legal remedies, may
be done by his agent; and for this purpose he is
authorized to make an affidavit and execute any
bond required, though his agency be created by
parol. In all such cases, if the principal repudi-
ate the act of the agent, the agent shall be per-
sonally bound, together with his sureties.
Cross References.- — As to how agency created, see § 3574
As to when affidavits by agent allowable, see 1 Enc. Dig.
284.
991 ]
§ 3608
LIABILITIES OF AGENT AS TO THIRD PERSONS
§ 3609
This Section and Section 3670 Distinguished.— This sec-
tion of the Code allows the principal to repudiate the action
of the agent, and in that event the agent and his securi-
ties become liable; and this is the difference between this
section and § 3o70, which says an affidavit of illegality may
be filed by an attorney in fact or an executor, administra-
tor or other trustee. Cook v. J'.uchanan, 86 Ga. 760, 762,
13 S. K. 83.
Verification of Traverse. — It was held under this section
and §§ 5184 and 5200 that where a certiorari has been sued
out, taking a case from an inferior judicatory to the su-
perior court, and a traverse is filed to the answer by the
plaintiff in certiorari, such traverse may be verified by his
attorney at law. Georgia, etc., Ry. Co. v. Sizer & Co., 121
Ga. 801, 49 S. E. 737.
Appeal by Agent. — An agent created by parol under this
section, can not enter an appeal, because § 3'. 15 expressly
requires that if an agent enters an appeal, he must be au-
thorized in writing and the writing filed in the court in
which the case is pending. Cook v. IUichanan, 86 Ga. 760,
762. 13 S. B. S3.
Forthcoming Bond by Agent for Principal. — Under this
section, an agent interposing a claim in behalf of his prin-
cipal may execute the forthcoming bond required by the
statute, whether the agency be created in writing or by pa-
rol. This section supplies the legislative authority which
was wanting when the cases of Gilmer v. Allen, 9 Ga. 208,
was decided. Head v. Wood, 92 Ga. 548, 17 S. E. 928;
U. S. Fidelity Guaranty Co. v. Murphy, 4 Ga. App. 13,
60 S. E. 831. '
Suits by Agent for Benefit of Principal. — Where the
claim of right to a private way is founded upon an unin-
terrupted use of the way for more than seven years by the
owners of a certain plantation, their agents, servants and
tenants, the right is not in the agents or servants them-
selves, but in the owners who alone are the persons in-
jured by an unlawful obstruction of the way, as against
agents and servants, in violation of the right. While their
agents, by virtue of this section, may commence and carry
on a proceeding in their names to remove such obstruction,
under § 825 of the Code, he can not institute and carry on
a proceeding for that purpose in his own name, either in-
dividually or as an agent. Cunningham v. Elliott, 92 Ga.
159, 18 S. E. 365.
Interposing Claim upon Affidavit in Forma Pauperis. — A
claim can be interposed under § 5164 upon an affidavit in
forma pauperis made by the claimant himself, but not under
this section upon a like affidavit made by rfis agent. Had-
den v. Uirned, S3 Ga. 636, 10 S. E. 278.
Verification of Application for Ne Exead.— It was held
tinder this section that an agent may verify the application
for a ne exeat, provided he can, of his own knowledge,
state the facts as positively and distinctly as is required of
the complainant himself. Orme v. Mcl'herson, 36 Ga 570-
571.
Applied as to affidavit of illegality in Cook v. Buchanan
86 Ga. 760, 761, 13 S. K. 83.
§3608. (§ 3036.) Money paid by mistake may
be recovered. — If money bo paid to an agent by
mistake, and he in good faith pays it over to his
principal, he shall not thereafter he personally li-
bit- the: cfor. In all other cases he is liable for
its repayment. If money be paid by an agent by
mi-take, be ni.iv recover it back in bis own name.
Cross References. See 1 Cum. Dig. 31") el Seq'., 1 Enc
274, A- 1.. voluntary payments, see § 4317. Aj to
effect where an agent exceeds authority granted, and effect
of unreasonabli instructions, sec § 35 76.
Possession Test for Determining Liability In a suit
against .in agent, t<> recovei money voluntarily paid to him
by mistal ntrolling question, in determining
his individual liability to repay the money, is whether he
still has the money in in- n it the time of the
..t whethei hi bad, before the suit was brought and
before he had any notice of the mistake, paid over to his
principal the mon< l by mistake, Rogers v. Dur-
73 S !•:. 1083.
Illustration. Where there wai testimon) tending to show
that tli<- amount paid by a purchaser was paid in conae
quence of a mist • '. in that the plaintiff undei
stood that he was buying land and it , thai the de
fendants BCted hi I itfa, and the amount v. dunt .i 1 1 \
paid tn and received by t! or emploj ea was
in good faith paid ovei by thi lattei t.< the principal, l><-
fore any n<>ti>-e <>f the alleg .1 mistake was brought home
to th' m. there was< no personal liabilir) on the pan of the
ndants, under this section. Pratt -. Postei
App '
§ 3609. (§ 3037.) When he has a right of ac-
tion. — Generally an agent has no right of action
on contracts made for his principal. The follow-
ing are exceptions :
1. A factor contracting on his own credit.
2. Where promissory notes or other evidence of
debt are made payable to an agent of a corporation
or joint-stock company.
3. In all cases where the contract is made with
the agent in his individual name, though his
agency be known.
4. Auctioneers may sue in their own names for
goods sold by them.
'). Tn cases of agency coupled with an interest
in the agent, known to the party contracting with
him. In all these cases, payment to the principal
before notice of the agent's claim is a good de-
fense.
Cross References. — As to factor's lien on deposits, see 5
3502. As to instrument signed, agent, trustee, guardian,
etc., see § 3570. As to suits in agent's own name, see 1
Cum. Dig. 322; 1 Enc. Dig. 278. As to actions in repre-
sentative capacity, see 2 Cum. Dig. 886; 2 Enc. Dig. 462.
As to authority off factors, see 1 Cum. Dig. 113.
Paragraph 2 — A promissory note, payable to the ordet
of an agent of a corporation (the principal as well as the
agent being specified by name); is, in legal effect, payable
to the corporation, and while the agent can maintain an ac-
tion thereon by virtue of this section, so can the principal.
Martin v. Lamb & Co., 77 Ga. 252, 3 S. E. 10; Martin v.
Murray, 3 Ga. App. 204, 59 S. E- 717.
Paragraph 3. — Where one buys personally in his own
name he may maintain an action in his own name, under
this section, for a breach of a warranty in regard to tin
quality of the goods, although he may have been the agent
of another in making the purchase. King v. Dobbs, 30 Ga.
App. 441. 118 S. E. 42S.
Same — Agreement by Real Estate Broker. — An agree-
ment to give H., a real estate agent, the option of purchas-
ing land for his clients, gives H. individually a right of ac-
tion for breach of the contract. Pearson v. Home. 139 G-..
453, 77 S. E. 387.
Same — Agreement with Carrier. -A person who having in
charge as agent the goods of another makes with a common
carrier a contract to ship such goods, in which the agency
is not disclosed, may maintain by virtue of this section
an action in his own name for a 1 reacli of such contract.
Carter v. Southern Ry. Co., Ill Ga. 38, 3c S. E. 308.
Same — Right to Sue out Distress Warrant. It was held
under this section that where one rents land from the agent
of the owner, the contract being made with the agent in his
individual name, the latter may maintain an action on such
contract, though the fact of his agency was known by the
renter; and accordingly the payment of such rent may be en
forced by a disticss warrant suid out by the agent in his
own name. Spcncc v. Wilson. 102 Ga. 7(0, 29 S. V.. 713.
Snmc — Same — Executor, etc An executor, administrator.
guardian, or trustee can sue out a distress warrant in his
individual capacity under the third excepttou provided in
this section, and terms indicating a representative capac-
ity. if used, may be treated and disregarded as surplus-
age. Dean v. Donaison, i. App, 4<.j, 58 S. E
Same — Foreclosing Lien. It was held under this section
that where a reni contract is made with A. "trusi
landlord, he may foreclose a lien in his own name for
money furnished tin- tenant by him. as landlord, with which
to make the cn>p upon the rented premises, though the land
and such money belong t" snothei person whom h< repre-
sented in the transaction 1 . \ I -:. < I ..i. 343.
»'. S. K. 431.
Same — Amendment of Petition. Where ■ '•nit for lent k
instituted by the part) with whom th. actual contract of
tenancj le, it is permissible for him to amend the
petition by setting out th< nam< "t the true owner foi whose
use the suit is brought. Th. ml. would be otherwise, and
such an amendment it not permissible, where the plaintiff
acts not in ins own behalf as landlord, but merelj
agent of the ti park v. Long, 23 I \ p. 807a
*> r ro4.
What Agent Must Allege [l was held under this
tion that wlun the declaration discloses sgency on the pari
of the plaintiff, he can not maintain the action without al-
leging that he w.i< a factor and contracted on his own
§ 3610
LIABILITIES OF AGENT AS TO THIRD PERSONS
§ 3613
credit, or that the contract was made in his individual name,
or that his agency was coupled with an interest in the agent
known to the party contracting with him, unless it appear
that the action is founded on a promissory note or other
evidence of debt payable to the plaintiff as agent of a cor-
poration or joint stock company, or upon the sale of goods
made by the plaintiff as an auctioneer. Richmond & Dan-
ville R. Co. v. Bedell & Bowers, 88 Ga. 591, 15 S. E. 676;
Burg v. Malone, 22 Ga. App. 175, 177, 95 S. E. 739.
Instruction to Agent to Institute Litigation. — Instruc-
tion by principal to agent to institute litigation in the
agent's name is not one of the exceptions of this section
to the general rule. Rowland v. Gregg & Son, 122 Ga.
819, 822, 50 S. E. 949.
§ 3610. (§ 3038.) For interference with his
possession. — An agent having possession, actual or
constructive, of the property of his principal, has
a right of action for any interference with that
possession by third persons.
See 1 Enc. Dig. 279. As to injury to bailment where
possession is in bailee, see § 4486.
In General. — The provisions of this section appear, for
the first time in the statute law of this State, in the Code
of 1863. It has been embodied in the same language in
every code since adopted. Mitchell v. Ga. & Ala. Ry., Ill
Ga. 760, 768, 36 S. E. 971.
The word "agent"' as used in this section is to be con-
strued as meaning an agent who has a property, either gen-
eral or special, in the personalty in his possession. Mitch-
ell v. Georgia & Alabama Railway, 111 Ga. 760, 36 S. E-
971.
Actual Possession. — It was held under this section and
the ten preceding sections that possession of personalty
by an agent is actual, not constructive, possession by the
principal, and will support a possessory warrant by the
latter against one who wrongfully and fraudulently takes
possession thereof. Hillyer v. -Brogden, 67 Ga. 24.
Common Law Rule Not Contravened. — While at common
law and by statute in this State, "mere possession of a
chattel * * * win give a right of action for any inter-
ference therewith," such possession must be in the plain-
tiff's own right, and not as agent of another. This rule is
not contravened by this section. Mitchell v. Georgia & Ala-
bama Railway, 111 Ga. 760, 36 S. E. 971.
§ 3611. (§ 3039.) When responsible for credit
given. — Where the agency is known, and the cred-
it is not expressly given to the agent, he is not per-
sonally responsible upon the contract. The ques-
tion to whom the credit is given is a question of
fact to be decided by the jury under the circum-
stances in each case.
As to right of third person to proceed against undisclosed
principal, see § 3596.
General Rule. — It was held under this section and § 3594
that it is a general rule — standing on strong foundations,
and pervading every system of jurisprudence — that where
an agent is duly constituted, and names his principal, and
contracts in his name, the principal is responsible, and not
the agent. Tiller v. Spradley, 39 Ga. 35, 38.
Illustrations. — See note to § 3570.
A contract signed by a person who adds after his signa-
ture the words "general manager," is not the individual
undertaking of the person signing, if the contract shows on
its face that it was made in behalf of another; or if, in a
suit for its breach, this fact appears by extrinsic evidence.
Raleigh & Gaston Railroad Co. v. Pullman Co., 122 Ga. 700,
50 S. E. 1008.
It was held under this section that where the declaration
showing on its face that the agency of the president was
known and that credit was extended to the principal, there
being no allegation that credit was expressly extended to
the agent, there was no issue which required submission
to the jury. Bank v. Hamilton, 78 Ga. 312.
It was held under this section that if the sheriff knew
that the bidder purchased as the agent of others, and rec-
ognized and treated with him as such, his right of action
would not be against the agent, but against the principal.
Cureton v. Wright, 73 Ga. 8, 17.
Parol Evidence. — It was held under this section and §
3594 that where a contract is signed by a person individ-
ually, parol evidence is admissible for the purpose of show-
ing that he was acting as agent for another. Fitzgerald
Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212, 59
S. E. 713.
Question for Jury. — It was held under this section, omit-
ting cases of contracts under seal, negotiable instruments,
and those where there is an express declaration in writing
of an intention and agreement on the part of an agent to
be individually bound, usually where the agent contracts in
his own name, but with his principal known, the question as
to whether the principal or the agent individually is bound
is one of fact. Phinizy v. Bush, 129 Ga. 479, 59 S. E.
259; Jones v. Lathrop, 94 Ga. 398, 412.
Charging "Expressly" in Relation to Credit. — In charg-
ing this section the court neither used the word "expressly"
nor any equivalent language, nor did it refer in clear terms
to the understanding of both parties. The amplification
which was requested orally would have supplied the omis-
sion and ought to have been incorporated into the charge.
Fleming v. Hill, 62 Ga. 752, 756.
Negotiable Instruments. — This section, does not control
a case like this, where a negotiable paper, complete on its
iace, appears to have been negotiated in the fair and usual
course of trade; nor, on such a paper as this, is the ques-
tion to whom credit was given, one of fact to be decided
by the jury. Bedell v. Scarlett, 75 Ga. 56.
§ 3612. (§ 3040.) Public agents. — Public
agents contracting in behalf of the public are not
individually liable on such contracts.
See 1 Cum. Dig. 292, 1 Enc. Dig. 251. As to the pow-
ers of public officers, see § 303.
Reason for Rule. — There is a manifest distinction be-
tween contracts made with private agents, and agents act-
ing in behalf of the public, as it regards their personal re-
sponsibility. The reason of the distinction is that it is not
to be presumed either that the public agent means to bind
himself personally in acting as a functionary of the public,
or that the party dealing with him in his public character
means to rely on his individual responsibility. If individ-
uals acting for the public are to be held individually liable
upon their official contracts, but few would be willing to ac-
cept of any public trust or office. Ghent v. Adams, 2 Ga.
555, 556; Aven v. Beckom, 11 Ga. 1, 9.
Stipulation. — A public agent may stipulate to be per-
sonally responsible. Aven v. Beckom, 11 Ga. 1, 9.
Prohibitions. — That public agents fall within § 3582 which
prohibits an agent from buying if employed to sell or selling
if employed to buy; § 3583 which prohibits an agent from
making a profit out of the principal's property; § 4918 which
declares in express terms that no sheriff or other officer dis-
charging a similar duty shall purchase at his own sale; §
5571 which prohibits a sheriff, if a party, even to serve
process, appears clearly from this section, but upon the
principle, "inclusio unius, exclusio alterius" applies to them
all other provisions applicable to all agents in common.
Macon v. Huff, 60 Ga. 221, 228.
Justices of the Inferior Court contracting in behalf of the
public are not individually liable for the payment of such
contracts. Ghent v. Adams, 2 Ga. 555, 558.
Commissioners contracting for improvement on Coosa
river are not individually liable for obligations assumed in
that character. Tucker v. Shorter, 17 Ga. 620, 622.
§ 3613. (§ 3041.) Liability for excess of au-
thority. — All agents, by an express undertaking
to that effect, may render themselves individually
liable. And every agent exceeding the scope of his
authority is individually liable to the person with
whom he deals; so, also, for his own tortious act,
whether acting by command of his principal or
not, he is responsible; for the negligence of his
underservant, employed by him in behalf of his
principal, he is not responsible.
Cross References. — As to liability of partners for torts
committed by a copartner, see § 3187. As to limits in which
agent must act, see § 3576. As to liability of principal for
neglect and fraud of agent, see § 3601. As to liability of
employer for torts committed by his employee, see § 4414.
As to ratification of tort committed for one's benefit, see
§ 4416. As to liability of an agent for exceeding his au-
thority, see 1 Cum. Dig. 314 et seq. ; 1 Enc. Dig. 272. As
to wrongful delivery by party intrusted with custody, 11
Cum. Dig. 109; 12 Enc. Dig. 258.
Old Law Unchanged. — This section does not change or
add to the old law, as to the liability of an agent. Reid
v. Humber, 49 Ga. 207, 210.
Express Agreement as Binding Agent. — It was held un-
der this section that an agent who, acting within the scope
of his authority, enters into contractual relations for a
principal whom he discloses, does not bind himself, in the
Ga. Code— 32
[993 ]
§ 3614
KKAJLTY
§ 3618
absence of an express agreement to do so. Echols v. How-
ard, 17 Ga. App. 49, 86 S. E. 91.
Also if in point of fact an employer has acted without
or beyond the authority of an alleged principal, he alone
becomes personally liable and it was held under this sec-
tion that even though the employer be acting in the capac-
ity of agent and for the sole benefit of his principal, he may
nevertheless by express undertaking bind himself person-
ally. Willingham v. Glover, 28 Ga. App. 394, 111 S. E.
206; Davis v. Menefee, 131 S. E. 527.
Same — County Warden. — A county warden, who offered
a certain amount to the plaintiff to return a convict, ren-
dered himself individually liable, under the first sentence
of this section. King v. Lewis, 32 Ga. App. 110, 122
S. E. 633.
Same — Execution of Bond. — Where an agent executes,
without authority from his principal, a bond in the name
of his principal as surety, and" fails to disclose his lack of
authority to the other parties to the instrument, and they
have no knowledge of such lack of authority, and no rati-
fication by the principal appears, and the principal is with-
out knowledge of the agent's failure to comply with the
specific requirements of a written power of attorney, which
furnishes his sole authority to bind the principal, and, on
account of the implied representation as to his authority to
bind the principal in the manner attempted, a beneficiary
in the instrument suffers injury, the injured person may re-
cover damages from the agent individually. Peeples v.
Perry, 18 Ga. App. 369, 89 S. E. 461.
Overseer as Purchasing Agent. — -This section is not . to be
construed as conferring upon an overseer implied legal au-
thority to act as a purchasing agent, so as to bind his em-
ployer. Render v. Hill Bros., 30 Ga. App. 239, 117 S. E.
258.
Personal Liability for Acts beyond Scope of Employment.
— According to the wording of this section, an agent is lia-
ble personally for acts exceeding the scope of his employ-
ment. See ante, this note, notes of Willingham v. Glover,
28 Ga. App. 394, 111 S. E. 206; Davis v. Menefee, 131
S. E. 527.— Ed. Note.
Tortious Act of Agent. — An agent is personally responsi-
ble for his own tortious act, under this section. Wadley
v. Dooly, 138 Ga. 275, 75 8. E. 153.
And in an action for damages founded on tort, it is no
defense that the injury was caused while the defendant
was acting in performance of a duty as agent erf a firm of
which the plaintiff was a member, if negligence of the de-
fendant amounting to misfeasance produced the injury.
Owens v. Nichols, 139 Ga. 475, 77 S. E. 635.
Same — Liability for Nonfeasance. — However, it was held
under this section and § 3'601 that while an agent is per-
sonally liable to those injured by his misfeasance, he is
not ordinarily liable for mere nonfeasance. Kimbrough v.
Boswell, 119 Ga. 201, 203, 45 S. E. 977.
Same — Conversion by Warehouse Agent. — A delivered to
the defendant, warehouseman, a certain bale of cotton and
received a warehouse receipt, which he transferred in writ-
ing to the plaintiff, who has since retained its possession.
Subsequently the defendant, without legal authority, de-
livered the cotton to one B, knowing that the latter did net
cwn it. It was held that the alleged conduct of the defend-
ant amounted to a conversion and he was liable under this
section for his tortious act, though done in the capacity of
agent. Trippe v. Bell & Company, 139 Ga. 782, 78 S. E. 126.
§ 3614. (§ 3042.) Where agent exceeds author-
ity.—When the agent exceeds his authority, so
that the principal is not bound, the agent can not
enforce the contract in his own name against the
person with whom he deals, unless the contract
has been fully executed upon the part of the agent,
or the credit was originally given to the agent.
As to limits in which an agent must act, see § 3576.
ARTICLE 4.
Overseers.
§ 3615. (§ 3043.) Rights and powers of over-
seers. — In the absence of the employer, the over-
seer stands in his place. It is his duty to see to the
sustenance and protection of his employer's prop-
erty; and to discharge the duty, he is justified in
repelling aggressors and trespassers to the same
extent with the employer.
Admissions of Overseer to Prove Adverse Possession. — It
was held by virtue of § 5767 and this section that the state-
ment of the overseer of defendant, who was in possession
on the land, and managing his property for him as his agent,
as to the reason why a fence was located in a peculiar man-
ner, is admissible to prove the adverse possession of the
defendant. Shipp v. Wingfield, 46 Ga. 593.
§ 3616. (§ 3044.) Parol contracts. — Contracts
between employers and overseers may be by parol,
though they may extend beyond a year from the
time of the contract.
FIFTH TITLE.
Of Property and the Tenure by Which it is Held
CHAPTER 1.
Of Realty.
§ 3617. (§ 3045.) Realty denned. — Realty or
real estate includes all lands and the buildings
thereon, and all things permanently attached to
either, or any interest therein issuing out of or
dependent thereon. The right of the owner of
lands extends downward and upward indefinitely.
As to an estate for years passing as realty, see § 3685.
As to right of action for interference above or below sur-
face, see § 4477.
Editor's Note. — This section is cited and quoted in
numerous cases involving fixtures and the right of tenants
to remove the same. For a full treatment of these decisions
reference should be made to §§ 3621 and 3696 and the notes
thereto.
Trees growing on land constitute a part of the realty as
provided by this section. Coody v. Lumber Co., 82 Ga. 793,
10 S. E- 218; Marthinson v.. King, 150 Fed. 48. Citing
Douglass v. Bunn, 110 Ga. 159, 35 S. E. 339. For full
treatment, including many other citations, see 11 Cum. Dig.
38, 12 Enc. Dig. 210.
Crops. — It seems to have been well settled that growing
crops were a part of the land. Williams v. Mitchen, 25
Ga. App. 138, 102 S. E. 870. And in Newton v. Boyd, 143
Ga. 761, 98 S. E- 347, it was held that a crop of corn, not
detached, was a part of the realty whether mature or imma-
ture. But see Hamilton v. State, 94 Ga. 770, 21 S. E. 995,
where it was held that annual productions having matured
and ceasing to draw sustenance from the earth became per-
sonalty. And for complete discussion of this subject, see
4 Cum. Dig. 489, 4 Enc. Dig. 62; of the effect of severance,
see § 3622 and notes thereto.
But since the passage of the Act of 1922, herein codified
as § 3651 (1), it is definitely settled that "all crops, ma-
tured or unmatured" are personalty. Ed. Note.
Water Rights.— A riparian owner can not maintain eject-
ment against an adjacent proprietor who erects a dam and
throws the water back upon his land. He has a remedy
by an action on the case; but the principle of this section,
that land embraces all above and below it, can not be ap-
plied in such a case to give cause for ejectment. Ezzard
v. Findly, 74 Ga. 520. See §§ 3634, 4475.
Mines and Minerals. — An absolute conveyance carries,
under this section, all mines, minerals, and clays in and
under the land conveyed. Wright v. Martin, 149 Ga. 777,
782, 102 S. E. 156. For other cases, see 8 Cum. Dig. 630.
Easements for telephone lines constitute realty under this
section. In re Brinn, 262 Fed. 527, 531.
Fences permanently affixed to land constitute a part of
the realty under this section. Bagley v. Columbus So.
Rwy. Co., 98 Ga. 626, 627, 25 S. E. 638.
§ 3618. (§ 3046.) Ancient lights. — A right to
the easement of light and air passing over an-
other's land through ancient lights or windows is
not acquired by prescription; but when one sells a
house, the light necessary for the reasonable en-
joyment whereof is derived from and across ad-
joining land then belonging to the same owner, the
easement of light and air over such vacant lot
passes as an incident to the house sold, because
necessary to the enjoyment thereof.
As to title by prescription generally, see § 4163 et seq.
See also, 9 Cum. Dig. 538, 10 Enc. Dig. 547.
[994]
§ 3619
KJiALl Y
S oozi.
Editor's Note.— The first principle of this section, that
an easement in light and air can not be acquired by pre-
scription, was enunciated in Mitchell v. Rome, 49 Ga. 20,
where it was held that this was especially true when ap-
plied to a defendant public or municipal corporation. In a
subsequent case, Turner v. Thompson, 58 Ga. 268, 69 Ga.
219, the court stated that the common law doctrine of
acquisition by possession of light and air, was not appli-
cable to a young and growing country and had been re-
jected by the current of American authority.
In discussing the situation provided for in the latter part
of this section, the court, in Thompson v. Turner, 58 Ga.
268, 69 Ga. 219, while holding that an owner selling half of
a lot with a house facing on the part not sold, was estop-
ped to obstruct the passage of light and air to the house,
seemed to limit the decision by the following language: "An
implied grant of an easement of light will be sustained oniy
in cases of real necessity; and will be denied or rejected in
cases when it appears that the owner claiming the ease-
ment can, at a reasonable cost, have or substitute, other
lights to his building." For a full treatment of this case,
see 1 Enc. Dig. 145.
Applies to Leases. — The principle this section states is
equally applicable to a case where the owner of two ad-
joining lots leases one upon which there is a dwelling-
house dependable upon a window overlooking the adjoining
lot for light and air. Indeed the reason for the rule is
more cogent in a case of tenancy than of purchase. Darnell
v. Columbus Show-Case Co., 129 Ga. 62, 64, 58 S. E. 631.
One who subsequently rents the adjoining land is in-
vested with no greater privileges than his landlord, and is
liable to his neighbor tenant in damages resulting from
interference with the latter's implied easement. Darnell
v.. Columbus Show-Case Co., 129 Ga. 62, 58 S. E. 631.
Same — Damages. — Ordinarily the damage recoverable is
the depreciated rental value of the tenement; but if the in-
strumentality which obstructs the light and air be so con-
structed as to project the rain-water through the window
of the tenement to the injury of the tenant's bedroom
furnishings and to his personal discomfort, and this is
done with the view of causing the tenant to abandon his
lease, punitive damages may be allowed. Darnell v.
Columbus Show-Case Co., 129 Ga. 62, 58 S. E. 631.
Injunction. — It was error to enjoin the building of a
house or a lot because the building would obstruct the light
and air from a church. Smyth v. Nelson, 135 Ga. 96, 68
S. E. 1032.
§ 3619. (§ 3047.) Lateral support. — Owners
of adjoining lands owe to each other the lateral
support of the soil of each to that of the other in
its natural state. If they derive title from a com-
mon grantor, the lateral support embraces the
weight of walls and other burdens that may be on
it; and if at the time of sale there are buildings ad-
joining each other, the right extends to the lateral
support which each adjacent wall gives to the
other.
For full treatment of lateral support, see 1 Enc. Dig. 143.
Editor's Note.— The language of this section was first
stated in Montgomery v. Trustees, 70 Ga. 38. Several
paragraphs from this case will be found in the note to the
section immediately following.
Excavations. — As to excavations, see the section im-
mediately following and the notes thereto.
Acquisition by Prescription. — The owner of a building
erected on the line of his lot can not acquire a prescriptive
right to the lateral support of the adjacent soil. Mitchell
v. Rome, 49 Ga. 20, 30.
Effect of Agreement for Removal. — Under this section
owners of adjoining land owe to each other the lateral sup-
port of the soil. But there is nothing in the law which
prevents an owner from agreeing to a removal of lateral
support. And the successor in t'.tle of a landowner, who
grants a right of way to a railroad, has no cause of action
against a second railroad, purchaser from the first, be-
cause his land unless supported would be washed into the
cut constructed by the railroad to whom was granted the
right of way. Seaboard Air-I,ine v. McMurrain, 132 Ga.
181, 63 S. E. 1098.
§ 3620. (§ 3048.) Excavations by adjoining
owners. — The owner of adjoining land has the
right, on giving reasonable notice of his intention
so to do, to make proper and needful excavations
even up to the line for purpose of construction, us-
ing ordinary care and taking reasonable precau-
tions to sustain the land of the other.
For full treatment of the right to make excavations, see
1 Cum. Dig. 143.
Editor's Note.— This section is a natural concomitant
of the section immediately preceding, as it states what, and
how, excavations may be made without violating the rule
that landowners owe to each other the duty of lateral sup
port. The section is based on the decision in Montgomery
v. Trustees, 70 Ga. 38. Prior to the decision in that case it
seems to have been the arbitrary rule that the owner of
land did not have the right to excavate his soil to the line
of an adjacent proprietor, so as to cause his neighbor's land
to fall away. See Morrison v. Latimer, 51 Ga. 520, 522.
Reasonable Precautions and Reasonable Notice. — Not-
withstanding the fact that notice of intended improvements
should be given to the adjoining landowner, yet the failure
to give notice will not necessarily show negligence. Mont-
gomery v. Trustees, 70 Ga. 38.
But where an excavation is contemplated the owner of
the premises on which the excavating is to be done, should,
as manifesting that degree of care and precaution required
of him, give reasonable notice to the adjoining landowner
of his intention to excavate, so that opportunity may be
afforded the adjacent owner to take steps necessary to pro-
tect his buildings and other structures. Montgomery v.
Trustees, 70 Ga. 38; Bass v. West, 110 Ga. 698, 36 S. E.
244.
However if the adjoining landowner from personal ob •
servation or otherwise, had knowledge that the work was
being done, then the object of giving notice will have been
accomplished, and this fact may be considered by the jury
in determining the question of diligence. Montgomery v.
Trustees, 70 Ga. 38.
Encroachments. — Where, in excavating, the owner of
land goes through and beyond his line and undermines the
soil of an adjoining landowner, liability attaches to the act
not on the ground of a lack of the proper care in doing
the work, but on the ground that the act is a trespass.
Bass v. West, 110 Ga. 698, 36 S. E. 244.
The right of the owner of land extends downward in-
definitely; therefore if one party, building upon his own
land, encroaches upon the adjoining land of his neighbor,
no question should arise as to the right of the latter to
maintain ejectment against the former; and it is immaterial
whether the encroachment is upon the surface of the soil,
or below it. Wachstein v. Christopher, 128 Ga. 229, 231,
57 S. E- 511.
Negligence of Contractor. — The owner of land on which
an excavation is negligently and carelessly made by a con-
tractor, who acts under the direction and control of the
owner, is liable for injury resulting therefrom to buildings
and other structures on adjoining property, although the
contractor undertook to protect adjoining buildings under a
contract requiring such undertaking. Harrison v. Kiser,
79 Ga. 588, 4 S. E. 320; Bass v. West, 110 Ga. 698, 36 S.
E. 244.
But where the excavating is done by an independent
contractor, and the owner of the property neither gives
directions as to nor ratifies the manner of doing the work,
the owner will not be liable for resulting injury due to the
negligent and careless manner in which the excavating is
done. Harrison v. Kiser, 79 Ga. 588, 4 S. E. 320.
Superincumbent Weight of Buildings. — In an action in
which it was alleged that on account of the negligence in
making excavations on land adjoining the plaintiff's build-
ing, the plaintiff's land was not given the proper lateral
support, in consequence of which the wall of the building
collapsed, it was not error for the court, in charging as to
the provisions of this section, to instruct the jury that it
was the duty of the defendant to use ordinary care to sus-
tain "the land" of the plaintiff, without instructing them
in the same connection as to the duty of the plaintiff to
protect the superincumbent weight of the building. Wilkins
v. Grant, 118 Ga. 522, 45 S. E- 415.
Actions. — For cases involving, who may sue, necessary
allegations, and damages, see 1 Enc. Dig. 144.
§ 3621. (§ 3049.) Fixtures. — Anything in-
tended to remain permanently in its place, though
not actually attached to the land, such as a rail
fence, is a part of the realty and passes with it.
Machinery, not actually attached, but movable at
pleasure, is not a part of the realty.
For full treatment of Fixtures, see 6 Cum. Dig. 275, 6
Enc. Dig. 250.
[995
§ 3621
REALTY
§ 3623
Editor's Note.— litigation over fixtures usually arises
from the efforts of a tenant to remove articles. His rights
in this matter are prescribed by §§ 3695, 3696, and reference
should be made to those sections. The annotations follow-
ing are confined to the principles determining what are
fixtures, with illustrations, and the sale or mortgage of the
same.
Determining What Are Fixtures.— It is unnecessary to
go beyond the terms of this section and § 3617 to ascertain
what are fixtures, and our code is in entire harmony with
the common law on the subject. Wright v. Dubignon, 114
Ga. 765, 768, 40 S. E. 747.
But it was stated in Empire Cotton Oil Co. v. Continental
Gin Co., 21 Ga. App. 16, 18, 93 S. E- 525, that this provi-
sion of law does not, however, always provide a certain and
easy test by which it can be determined in a given case
whether or not the article in question remains personalty,
or is attached to the realty and a part thereof.
"The only fixtures of a building which are held to be
personalty are 'trade fixtures,' or 'domestic or ornamental
fixtures.' " Chapman v. Silver & Bro., 18 Ga. App. 476,
478, 89 S. E. 590. For discussion of trade fixtures, see notes
to § 3696.
Same— "Movable at Pleasure." — If the language of this
section, "movable at pleasure," were interpreted in a
literal sense, it would apply to almost every kind of ma-
chinery, and clearly such is not the intention of the legis-
lature. Cunningham & Co. v. Cureton, 96 Ga. 489, 493, 23
S. E- 420.
"In Cunningham v. Cureton, 96 Ga. 489, it was held, in
effect, that whatever is placed in a building to carry out
the obvious purpose for which it was erected, or to per-
manently increase its value for such purpose, and not in-
tended to be moved about from place to place, but to be
permanently used with the building, becomes a part of the
realty, although it may be removable without injury either
to itself or the building; citing Waycross Opera House Co.
v. Sossman, 94 Ga. 100, 20 S. E. 252." Brigham v. Over-
street, 128 Ga. 447, 450, 57 S. E- 484.
Same — Intention. — "The element of intention enters into
the question of permanency, whether of attachment or
placing, and the intention is open to investigation by parol
evidence." Smith v. Odom, 63 Ga. 499, 503. See also United
Cigar Stores v. McKewfie, 140 Ga. 270, 274, 78 S. E. 1006.
See 6 Cum. Dig. 276, 6 Enc. Dig. 252.
Same — Circumstances Considered. — Whether an article of
personalty connected or attached to realty becomes a part
of the realty, and therefore a fixture, depends upon the
circumstances under which the article was placed upon the
realty, the uses to which it is adopted, and the parties who
are at issue. Pendly Brick Co. v. Hardwick & Co., 6 Ga.
App. 114, 64 S. E. 664.
Sales and Mortgages. — As between grantor and grantee
the strict rule of the common law prevails, that, in the ab-
sence of an agreement to the contrary, all fixtures, whether
actually or constructively annexed to the realty, pass by a
conveyance of the freehold. Brigham v. Overstreet, 128 Ga.
447, 450, 57 S. E. 484; Wolff v. Sampson, 123 Ga. 400, 51 S.
E. 335.
This section is peculiarly applicable to cases where the
fixtures are erected by the owner of the realty, who sub-
sequently sells or mortgages the premises. "When land is
conveyed, whatever fixtures are annexed to the realty at
the time of the conveyance pass with the estate to the
vendee, unless there be some express provision to the con-
trary; and fixtures pass to a bona fide purchaser of the
real estate, notwithstanding an agreement between the
owner of the land and the vendor of the fixtures that they
should remain personal property. The same rules as to
fixtures which apply as between vendor and vendee apply
also as between mortgagor and mortgagee. Cunningham
& Co. v. Cureton, 96 Ga. 489, 23 S. E- 420. See also Way-
cross Opera House Co. v. Sossman, 94 Ga. 100, 120 S. E-
252; Raymond v. Strickland, 124 Ga. 504, 506, 52 S. E. 619.
If machinery were to be treated, under the evidence, as
liaving been affixed to the realty so as to become a part
thereof, then there is abundant authority for holding that
■a vendee of the premises, without notice, would be un-
affected by the reservation. Empire Cotton Oil Co. v.
Continental Gin Co., 21 Ga. App. 16, 19, 93 S. E. 525.
Particular Fixtures Considered and Principles Illustrated.
— Eor a full treatment, see 6 Cum. Dig. 279, 6 Enc. Dig.
258.
Instances given in Herman on Chattel Mort., § 9 of
movable fixtures, are a barkmill, a cider-mill and press, a
post wind-mill, coffee-mills, gas fixtures, chandeliers, side
brackets, iron safes, cupboards, shelves, and quite a num-
ber of other like articles, are covered by the description
of utensils of the trade, and a portion by fixtures and
utensils. McCall v. Walter, 71 Ga. 287, 290.
Same — Machinery. — A cotton-gin and bond were held to
be fixtures under evidence showing that the parties to a
conveyance so considered them. Smith v. Odom, 63 Ga.
499.
Machinery such as planers, moulders, belting, shafting
and the like, placed in and attached to a mill becomes a
part thereof. Cunningham & Co. v. Cureton, 96 Ga. 489,
23 S. E. 420.
A sugar-cane mill, and a "sugar-cane boiler," which was
in a brick furnace, on the ground and the chimney of which
ran up through and above the roof of the sugar-mill house,
became a part of the realty. The same is true as to an old,
partially broken "sugar-cane boiler" which was under a
building, in a large horse stable, and from which ran a
gutter to a well on the lot, and was used as a watering
place for farm stock. Brigham v. Overstreet, 128 Ga. 447,
57 S. E. 484.
"In the present case the machinery included no engine
or boiler, and nothing was imbedded in brick or wood or
attached in a permanent manner to the walls; but the gins
were merely screwed to the floor on one side, and the shaft-
ing and pulleys on the other, and the other things were
not fastened. If the shafting and pulleys were to be con-
sidered part of the running-gear, any presumption that they
were intended to be a part of the land was, in the minds
of the jury, rebutted by the circumstances of this case,
including the original intent of the parties." Empire Cot-
ton Oil Co. v. Continental Gin Co., 21 Ga. APP- 16, 19, 93
S. E. 525.
Same — In Stores* — The counters and drawers in a drug
store placed there by the landlord are fixtures. Pope v.
Garrard, 39 Ga. 471.
And a glass show window which is a permanent part of
a store building is not a mere "trade fixture" but is part
of the realty. Chapman v. Silver & Bro., 18 Ga. App. 476,
89 S. E. 590.
When one who erected on his land a storehouse and placed
therein shelving nailed and fastened to the walls, large and
cumbersome counters, tables, and a large meat-box, to carry
out the obvious purpose for which the building was erected,
to increase its value for such purpose, and to be perman-
ently used in connection with it, they became part of the
realty, even though they might have been removed from
such house without being injured and without injury
to the building. Brigham v. Overstreet, 128 Ga. 447, 57 S.
E. 484.
Same — Domestic Fixtures. — An electric chandelier, an-
nunciator, and like contrivances or devices attached to the
ceiling or walls of a house by a tenant, at his own expense
and for his personal comfort and convenience, come within
the legal definition of "domestic fixtures," when so placed
that they can be readily detached without injury to the
premises. Not being annexed to the rented structure with
any view to their becoming permanently attached thereto
as a part of the realty, they do not lose their identity as
chattels. Raymond v. Strickland, 124 Ga. 504, 52 S. E- 619.
§ 3622. (§ 3050.) Detached becomes personalty.
— Anything detached from the realty becomes per-
sonalty instantly on being so detached, and may
be the subject-matter of larceny, even by the
person wrongfully detaching it.
As to what is personalty generally, see § 3646. For
identical provision of the penal code, see P. C, § 167.
House. — Under this section a house wrongfully detached
from land and placed upon other land becomes personalty,
and an action of trover will lie for the recovery. Kennedy
v. Smith, 149 Ga. 61, 99 S. E. 27; Kennedy v. Smith, 23 Ga.
App. 724, 99 S. E. 318.
Counters and drawers in a. drug store placed by the
landlord are fixtures. Under this section, when severed
from the realty and saved from fire, they became per-
sonalty, but remained the property of the landlord who bad
the right to dispose of them as he thought proper. Pope
v. Garrard, 39 Ga. 471, 476.
Trees and Timber. — A contract of sale in regard to tim-
ber attached to the realty but to be severed before title is
to pass, is an executory sale of personalty. Clarke Bros,
v. McNatt, 132 Ga. 610, 64 S. E. 795. See Graham v. Weil,
126 Ga. 624, 55 S. E. 931. For a full treatment of trees and
timber, including trees as realty and the sale or lease of
the same, see 11 Cum. Dig. 36; 12 Enc. Dig. 210.
Crops.— See § 3651 (1).
§ 3623. (§ 3051.) Allodia! tenure. — The ten-
ure by which all realty is held in this State, is un-
[ 996 ]
§ 3624
REALTY
§ 3630
-der the State as original owner; it is without serv-
ice of any kind, and limited only by the right of
eminent domain remaining in the State.
As to original of grants, see § 3798.
§ 3624. (§ 3052.) Eminent domain. — The right
of eminent domain is the right of the State, through
its regular organization, to reassert, either tem-
porarily or permanently, its dominion over any
portion of the soil of the State on account of pub-
lic exigency and for the public good; thus, in time
of war or insurrection the proper authorities may
possess and hold any part of the territory of the
State for the common safety; and in time of peace
the legislature may authorize the appropriation of
the same to public purposes, such as the opening
of roads, construction of defenses, or providing
channels for trade or travel.
See §§ 5206 et seq., 6388 and notes thereto. As to rail-
roads, see § 6464. For a full and comprehensive treatment
of the subject eminent domain, see 5 Cum. Dig. 369, 5 Enc.
Dig. 32.
§ 3625. (§ 3053.) When to be exercised. — It is
the province of the legislature to judge of the exi-
gencies requiring the exercise of this right, but if,
under pretext of such necessity, the property of
one is taken for the private use of another, the
courts should declare the law inoperative.
In the exercise of the jurisdiction granted by this sec-
tion the legislature passed acts which are embodied in this
code as §§ 3634 and 5240. Central Georgia Power Co. v.
Ham, 139 Ga. 569, 571, 77 S. E. 396.
§ 3626. (§ 3054.) How. — The legislature may
exercise this right either directly through the of-
ficers of the State, or through the medium of cor-
porate bodies, or by means of individual enterprise.
See §§ 5206, 6388 and notes thereto.
§ 3627. (§ 3055.) Just compensation. — Except
in cases of extreme necessity and great urgency,
the right of eminent domain can not be exercised
without first providing for just compensation to
the owner for the interference with his exclusive
rights.
As to destroying property for public good, see § 1632. As
to private ways, grant of, see § 6388.
§ 3628. (§ 3056.) Destroying property for pub-
lic good. — Analogous to the right of eminent do-
main is the power from necessity, vested in cor-
porate authorities of cities, towns, and counties, to
interfere with and sometimes to destroy the pri-
vate property of the citizen for the public good,
such as the destruction of houses to prevent the
extension of a conflagration, or the taking posses-
sion of buildings to prevent the spreading or con-
tagious diseases. In all such cases any damages
accruing to the owner from such acts, and which
would not otherwise have been sustained, must be
paid by such corporation.
Section 1632 is identical with this section. For full treat-
ment of destruction by municipal corporations, see 9 Enc.
Dig. 504.
This section is a mere quarantine regulation and only ex-
tends to the^ taking possession of a house, or surrounding
it with a guard, in which a contagious disease exists. And
when the justices of a county court seized plaintiff's prop-
erty for the purpose of providing a small -pox hospital, they
were liable in an action of trespass. Markham v. Brown,
37 Ga. 277, 282.
§ 3629. (§ 3057.) Owner of running water. —
Running water, while on land, belongs to the
owner of it, but he has no power to divert it from
[ 99
the usual channel, nor can he so use or adulterate
it as to interfere with the enjoyment of it by the
next owner. Acts 1855-6, p. 12.
See §§ 4475, 1853.
For a full treatment of this subject, see 11 Cum. Dig.
476, 12 Enc. Dig. 775.
Declarative of Common Law. — Construing together this
section and §§ 3633 and 4475, there is no change in the com-
mon law. Pool v. Lewis, 41 Ga. 162, 170; White v. East
Lake Land Co., 96 Ga. 415, 23 S. E. 393.
This section made no substantial change in the common-
law rights of landowners, with respect to ditching out and
protecting their property. Grant v. Kuglar, 81 Ga. 637, 8
S. E. 878; Price v. High Shoals Co., 132 Ga. 246, 255, 64
S. E. 87.
Riparian Owners Entitled to Reasonable Use. — Under a
proper construction of this section and §§ 4398 and 4475,
every riparian owner is entitled to a reasonable use of the
water in the stream. If the general rule that each riparian
owner could not in any way interrupt or diminish the flow
of the stream were strictly followed, the water would be
of little practical use to any proprietor, and the enforce-
ment of such rule would deny, rather than grant, the use
thereof. Price v. High Schools Co., 132 Ga. 246, 248, 64
S. E. S7.
This section and § 4475 secure to the owner of land over
which a stream passes the legal use of it, for the purpose
of propelling such Ynachinery as is suited to the size and
capacity of the stream; provided, the water is not ob-
structed for an unreasonable time, and is not diverted
from its natural channel when it passes to the lands of
the next proprietor. Pool v. Lewis, 41 Ga. 162, 170.
Same — Use Proportionate to Rights of Others. — For other
than domestic purposes, the right of each proprietor in the
use of the water is limited by the rights of the other
proprietors; and consequently, if an upper proprietor ap-
propriate to his own use more of the water than the
proportionate share to which he is entitled, a lower pro-
prietor may maintain an action for the recovery of dam-
ages therefor. White v. East Lake Land Co., 96 Ga. 415,
23 S. E- 393.
Same — Question for Jury.— The question as to whether
or not the use of the water by the first proprietor is rea-
sonable, is one of fact for determination by jury. White
v. East Lake Land Co., 96 Ga. 415, 23 S. E. 393; Price v.
High Shoals Co., 132 Ga. 246, 248, 64 S. E. 87.
Pollution. — Under this section, an upper riparian owner
can not lawfully pollute the water of a stream so as to
render it unfit for use by a lower owner. Satterfield v.
Rowan, 83 Ga. 187; Horton v. Fulton, 130 Ga. 466. And
several lower riparian owners have such a community of in-
terest that they may join in a petition to restrain such
pollution. Horton v. Fulton, 130 Ga. 465, 60 S. E- 1059.
Damage. — If diversion of water is complete the lower
proprietor is entitled to full damages, if partial, the dam-
ages sho.uld be apportioned. White v. East Lake Land Co.,
96 Ga. 415, 23 S. E- 390.
The damaged proprietor is under no legal obligation to
exercise ordinary care to avoid or lessen such damages.
Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S. E. 87;
Satterfield v. Roman, 83 Ga. 187, 9 S. E- 677.
§ 3630. (§ 3058.) Streams boundary lines. —
The beds of streams not navigable belong to the
owner of the adjacent land; if the stream of water
is the dividing line, each owner is entitled to the
thread or center of the main current; if the current
change gradually, the line follows the current; if
from any cause it takes a new channel, the original
line, if capable of identification, remains the
boundary. Gradual accretions of land on either
side accrue to the owner.
Cross References. — See § 4475. For a full treatment of
boundaries, see 2 Cum. Dig. 981, 2 Enc. Dig. 257. As to
county boundaries extending to center of streams, see § 32.
As to duty of processioners and surveyors when course of
boundary water changes, see § 3826. As to oyster rights,
see § 1941.
Independently of this section "such ever has been the
law in this state." Jones v. Water Lot Co., 18 Ga. 539;
Boardman v. Scott, 102 Ga. 404, 30 S. E. 982; State v.
Georgia Railway & Power Co., 141 Ga. 153, 157, 80 S. E.
657.
Use to Center of Stream. — Under this section where a
plot calls for a non-navigable river as a boundary, the line
is to determine at it, and the land embraced in the grant
]
§ 3631
REALTY
§ 3634
will extend to the middle thread of the stream. State v.
Georgia Railway & Power Co., 141 Ga. 153, 80 S. E. 657,
Stanford v. Mangin, 30 Ga. 355.
The general rule, under this section, is that riparian
owners are each entitled to the center of the stream. And
where there was a dam in the stream forming a mill pond
in which the lower riparian owner was entitled to "mill-
ing privileges," the upper riparian owner had, nevertheless,
the right to a reasonable use of the water to the center of
the stream, provided such use did not interfere with the
milling privileges. Rome R., etc., Co. v. Loeb, 141 Ga.
202, 80 S. E. 785.
One Proprietor Owning Both Sides. — As the owner of
land adjoining a non-navigable stream, is, under this sec-
tion, the owner of the soil to the center of the stream, it
follows that if one proprietor owns the land on both sides
of a stream he has the exclusive right of fishing therein,
and a grant of "mill privileges" in the stream does not
carry the fishing privileges. Thompson v. Tennyson, 148
Ga. 701, 98 S. E. 353. For full treatment of fish, see 6 Cum.
Dig. 269.
Lakes and Ponds. — Under a deed bounding land con-
veyed by an artificial pond, the lien of the land conveyed
did not extend to the thread of the stream from whose
waters the pond was formed, but only to the low-water
mark of the pond. Boardman v. Scott, 102 Ga. 404, 30 S.
E- 982. From the opinion of the court in this case it would
seem, that the same principle would apply to a natural lake
or pond. The court quoted this section but for obvious
reasons did not apply it to lakes and ponds, but based the
holding on common law principles. Fd. Note.
The Rule of This Section Applies in Condemnation Pro-
ceedings.— And in a notice to acquire an easement of flowage
on certain described land bounded by a non- navigable
stream, where the easement sought to be acquired is to
overflow the land, which is specifically described, and also
to raise and flow-back the water in the stream to a cer-
tain depth, the description of the property sought to be
impressed with the easement of flowage is sufficiently com-
prehensive and definite to include flowage rights over both
the land described and also the bed of the stream on which
it abuts to the center of the stream. Central Georgia
Power Co. v. Maddox, 135 Ga. 246, 69 S. F. 109.
Applied in Johnson v. Watson, 157 Ga. 349, 121 S. F. 229.
§ 3631. (§ 3059.) Navigable streams. — A
navigable stream is one capable of bearing upon its
bosom, either for the whole or a part of the year,
boats loaded with freight in regular course of
trade. The mere rafting of timber, or transporting
wood in small boats does not make a stream
navigable.
For a full treatment of navigable waters, see 8 Cum.
Dig. 798, 9 Fnc. Dig. 553.
Editor's Note. — Litigation has arisen over the navigabil-
ity of the following bodies of water. Applying the rule of
this section the Ogeechee and Canoochee rivers were held
not to be navigable in Brantley v. Lee, 139 Ga. 600, 77 S.
F- 783 and Seaboard Air Line v. Sikes, 4 Ga. App. 7, 60 S.
F- 868, respectively; whether the Ochlochnee river is
navigable, within the meaning of this section, was not de-
cided in Robinson v. State, 12 Ga. App. 683, 78 S. F. 53.
Knoxboro Creek, a stream running into the Savannah river,
was held to be navigable in Charleston Ry. v. Johnson, 73
Ga. 306.
Exclusive Test. — This section gives a clear and explicit
definition, and the test by which to determine the naviga-
bility of a particular river in this state is found in the
navigable capacity measured by the essentials of this
definition. Seaboard Air-Line v. Sikes, 4 Ga. App. 7, 9,
60 S. F- 868.
Parts of the Sea. — This section is not applicable to a bay,
estuary, or arm of the sea. Johnson v. State, 114 Ga. 790,
40 S. F- 807. But see section 3636 and notes thereto.
Same — Intention of Legislature.— It is reasonable to sup-
pose that the intention of the law making power, as ex-
pressed in this and the following section, was, not to
change the common law with reference to the boundaries
of landowners abutting in the sea or any of its inlets, but
rather to insure to riparian proprietors the right to the
river-bottoms upon their lands for agricultural purposes.
Johnson v. State, 114 Ga. 790, 792, 40 S. F. 807. See § 3636
and notes thereto.
Consent to Construction of Bridge. — This section deter-
mined whether a stream was navigable and required the
consent of the United States War Department to the con-
struction of a bridge over it. Brantley v. Lee, 139 Ga. 600,
77 S. E. 788.
§ 3632. (§ 3060.) Owner of adjacent lands. —
The rights of the owner of lands adjacent to
navigable streams extend to low-water mark in the
bed of the stream.
Changes Common Law Rule. — In Shively v. Bowlby, 152
U. S. 1, 2, 5, the court, in presenting a summary of
the laws of the original states upon the subject of land un-
der tide-water, declares: "In Georgia, also, the rules of
the common law would seem to be in force as to tidewaters,
except as affected by statutes of the state providing that
* * *" (here the court quoted this section).
This section is not applicable to a bay, estuary, or arm
of the sea, and the boundary of an owner on such a body
of water extends only to ordinary high water mark. John-
son v. State, 114 Ga. 790, 40 S. E. 807. The effect of this
decision is rendered nugatory of the acts of 1902, p. 108.
See § 3637 and notes thereto.
§ 3633. (§ 3061.) Power of owner of streams. —
The owner of a stream not navigable is entitled to
the same exclusive possession thereof as he has of
any other part of his land; and the legislature has
no power to compel or interfere with him in its
lawful use, for the benefit of those above or below
him on the stream, except to restrain nuisances.
See §§ 4475, 3629, and notes thereto.
Declarative of Common Law. — See note to^ § 3629.
No Conflict between This Section and Sections 5240-
5243. — This section was not intended to deprive the state
of its power of eminent domain, but rather it was definitive
of the rights of one riparian owner as against the other.
Consequently, this section was not repealed by the Act of
1897, p. 68 (codified as §§ 5240-5243). Nolan v. Central
Power Co., 134 Ga. 201, 207, 67 S. F. 656; Whitny v. Cen-
tral Power Co., 134 Ga. 213, 67 , S. F. 197.
Applied in Seaboard Air Line v. Sikes, 4 Ga. App. 7, '),
60 S. E. 868.
§ 3634. Water-powers, development of. — It
shall be lawful for all corporations and individuals
owning or controlling lands upon opposite sides of
any stream in this State, which is not a navigable
stream as defined by section 3631, to construct and
maintain a dam or dams across such stream for
the development of water-power and other pur-
poses, together with canals and appurtenances
thereof: Provided, that this section shall not be
construed to release individuals or corporations
constructing such dam or dams and appurtenant
works from liability to private property for dam-
ages resulting from the construction and opera-
tion thereof, either by overflow or otherwise.
Acts 1908, p. 78.
Scope of Section. — It will be noted that this section deals
generally with the right of an owner of land on both sides
of a non-navigable stream to construct and maintain a dam
or dams across such stream "for the development of water-
power and other purposes." It is not confined to com-
panies or persons furnishing heat, light, or power to the
public. We need not discuss how far this altered the
rights of riparian owners as they already existed; but it
may be said that it was hardly intended to declare broadly
that any owner of land might build a dam and be free from
all damages resulting therefrom, if it created a nuisance
injurious to health. Central Georgia Power Co. ' v. Nolen,
143 Ga. 776, 777, 85 S. E- 945.
Election of Remedies. — If the erection of a dam for a
grist-mill should create a continuing nuisance, it may be
abated under the provision of § 5333, or damages to those
whose property may be damaged are recoverable under the
terms of this section. Gray v. Chason, 158 Ga. 313, 123 S.
E. 290.
Limitation of Action. — Under this section of the Code the
plaintiff was obviously entitled to compensation for the
damage to her lands resulting from the overflow of a creek
caused by the building of a dam. But plaintiff's right of
action was barred by the statute of limitations. Smith v.
Dallas Utility Co., 27 Ga. App. 22, 24, 107 S. F- 381.
What Constitutes Damage under the Proviso. — It would
seem that the proviso of this section is exclusive in con-
fining the liability for the construction of dams, and ap-
purtenant works of the character referred to in the sec-
[ 998 ]
§ 3635
REALTY
§ 3639
tion, to damages to private property resulting from the
construction and operation of such dams and plants, either
by overflow or otherwise, and in limiting the remedy to
actions for the recovery of such damages. Central Georgia
Power Co. v. Ham, 139 Ga. 569, 573, 77 S. E. 396.
But in Central Georgia Power Co. v. Nolen, 143 Ga. 776,
778, 85 S. E- 945 it was held that, the right of a company
to build a dam does not include a right to build or main-
tain it in such negligent or improper manner as to cause a
nuisance injurious to the health of the adjacent community.
For damages arising from such things an action will lie.
The remark made in Central Georgia Power Co. v. Ham,
139 Ga. 569, 573, 77 S. E. 396, that it would seem that this
proviso (referring to this section) is exclusive in confining
the liability for the construction of dams to damages to
private property and in limiting the remedy to actions for
the recovery of such damages, was an obiter dictum. The
point there was whether the dam of the public-service cor-
poration could be summarily abated as a nuisance by ap-
plication to the ordinary. Central Georgia Power Co. vr.
Nolen, 143 Ga. 776, 778, 85 S. E. 945.
And the court in Gray v. Chason, 158 Ga. 313, 123 S. E.
290, after quoting the extract from the Ham case as set out
above, states, that whether that ruling is correct or not, it
is within the discretion of a judge to refuse an injunction
against erecting a dam which' might cause injury to the
health of a community, until all the issues of fact could be
passed on by a jury.
§ 3635. Boundaries of lands on tide-waters. —
The title to the beds of all tide-waters in this State,
where the tide regularly ebbs and flows, and which
are not navigable under the next succeeding sec-
tion, shall vest in the present owner of the ad-
jacent land for all purposes, including, among
others, the exclusive right to oysters, clams, and
other shell-fish therein or thereon. If the water is
the dividing line, each owner's boundary shall ex-
tend to the main thread or channel of the water. If
the main thread, or center, or channel of the water
changes gradually, the line follows the same, ac-
cording to the change. If for any cause it takes a
new channel, the original line, if capable of identi-
fication, remains the boundary. Gradual accre-
tions of land on either side accrue to the owner.
Acts 1902, p. 108.
See Boundaries, 2 Enc. Dig. 533. See also the two sec-
tions immediately following and the notes thereto. As to
oyster beds in waters not wider than one hundred and
thirty feet, see §§ 1941-1957.
§ 3636. Navigable tide-water defined. — A
navigable tide-water is any tide-water, the sea, or
any inlet thereof, or other bed of water where the
tide regularly ebbs and flows, which isjn fact used
for the purposes of navigation, or is capable of
bearing upon its bosom, at mean low tide, boats
loaded with freight in the regular course of trade.
The mere rafting of timber thereon, or the passage
of small boats thereover, whether for the trans-
portation of persons or freight, shall not be deemed
navigation within the meaning of this and the
preceding section, and does not make tide-water
navigable.
For full treatment of navigable waters, see 8 Cum. Dig.
798 et seq.; 9 Enc. Dig. 553.
The constitutionality of this act (§ 3635, this section and
§ 3637) was raised on an assignment of error but was not
passed upon as being too vague. Prey v. Oemler, 120 Ga.
223, 47 S. E. 546.
Public Terminus of Inlet. — Under this section, a navi-
gable tidewater includes any inlet of the sea where the tide
regularly ebbs and flows, which is in fact used for purposes
of navigation, or is of such a character as to be capable of
bearing upon its bosom, at mean low tide, boats loaded
with freight in the regular course of trade. With respect
to the latter classification it is not essential that there be
a public terminus at both ends of the inlet, but the navi-
gability of the inlet is determined by the capability of the
water to bear boats of the character described in the stat-
ute at mean low tide. Rauers v. Persons, 144 Ga. 23, 86
S. E. 244.
§ 3637. Rights of landowners. — For all pur-
poses, including among others the exclusive right
to the oysters and clams (but not to include other
fish) therein or thereon being, the boundaries and
rights of owners of land adjacent to or covered in
whole or in part by navigable tide-waters, as de-
fined in the preceding section, shall extend to low-
water mark in the bed of the water: Provided,
however, that nothing in this and the two preced-
ing sections shall be so construed as to authorize
such an exclusive appropriation of any tide-water,
navigable or unnavigable, by any person whomso-
ever, as to prevent the free use of the same by
others for purposes of passage and for the trans-
portation of such freights as may be capable of be-
ing carried thereover.
See Boundaries, 2 Cum. Dig. 990; 2 Enc. Dig. 533; Navi-
gable Waters, 8 Cum. Dig. 799. As to rights of adjacent
landowners in oyster beds in waters not wider than one
hundred and thirty feet, see § 1941.
Editor's Note. — This section overrules Johnson v. The
State, 114 Ga. 790, 40 S. E. 807. That case was decided
Feb. 3, 1902. This section was enacted and approved Dec.
16, 1902, presumably to meet the decision in the case cited
above. The case held that as §§ 3631, 3632 were not ap-
plicable to bays, estuaries, inlets or arms of the sea where
the tide regularly ebbs and flows, an adjacent proprietor
owned only to high -water mark.
Title. — This section did not undertake to take the title to
land from one person and confer it upon another. Aiken
v. Wallace, 134 Ga. 873, 68 S. E. 937.
§ 3638. (§ 3062.) Levees and ditches.— All per-
sons owning, or who may hereafter own, lands on
any watercourses in this State are authorized and
empowered to ditch and embank their lands, so as
to protect the same from freshets and overflows in
said watercourses: Provided always, that the said
ditching and embanking does not divert said water-
course from its ordinary channel; but nothing shall
be so construed as to prevent the owners of land
from diverting unnavigable watercourses through
their own lands. Acts 1793, Cobb, 26; Acts
1855-6, p. 13.
Cross References. — See §§ 1853, 4475. As to owner of
mine draining privileges, see § 800. For full treatment of
diversion of watercourses, see 11 Cum. Dig. 481; 12 Enc.
Dig. 779 et seq. As to private drains, see 5 Cum. Dig. 26,
4 Enc. Dig. 696 et seq.
Declaratory of Common Law. — The construction long ago
and repeatedly put by this court on the last part of the
section, which says "nothing shall be so construed as to
prevent the owners of land, etc.," necessitates the conclu-
sion that this whole statute is not alternative but only
declaratory of the common law. The legislature did not in-
tend to give riparian owners the privilege of ditching or
embanking their lands, or of diverting unnavigable water-
courses, so as to injure neighboring proprietors without
liability therefor. Indeed, the power of the legislature so
to alter the common law is expressly denied in Persons v.
Hill, 33 Ga. 141, 148. And in Cheeves v. Danielly, 80 Ga.
114, 4 S. E. 902, the same view is taken as to the inten-
tion of the legislature in passing this act. O'Connell v.
East Tenn. Railway Co., 87 Ga. 246, 257, 13 S. E. 489. See
also, Grant v. Kuglar, 81 Ga. 637, 639, 8 S. E. 878.
Section Subordinate to U. S. Constitution. — This section
was passed after the adoption by the state of Georgia of
the constitution of the United States, and is of course
subordinate to the provision in the latter instrument re-
lating to the control of commerce, and as a consequence,
of the navigable waters by congress. Mills v. United States,
46 Fed. 738, 746.
Municipal Corporations. — This section applies to municipal
corporations. Collins v. Macon, 69 Ga. 542, 548.
§ 3639. (§ 3063.) Bridge or ferry right. — The
right to construct a bridge or establish a ferry for
private use, across a watercourse within or ad-
[ 999
§ 3640
REALTY
§ 3642
joining lands, is appurtenant to the ownership of
the land; but the right to establish and keep a pub-
lic bridge or ferry is a franchise to be granted by
the State. Where such a grant interferes with the
owner's right of exclusive possession, just com-
pensation to him must be first made.
Cross References. — For full treatment of bridges, see 2
Cum. Dig. 1015 et seq. ; 2 Enc. Dig. 542 et seq. As to con-
struction of bridges connecting border counties with adjacent
states, see § 424. As to whether grant of land on water-
courses with the appurtenances conveys right of public
bridge or ferry, see § 779. As to definition of special fran-
chise, see § 1019. As to right of owner of land on both
sides of stream to establish a bridge or ferry, see § 761.
Statutes Construed in Harmony. — Section 761 of the Code
authorizing the owner of any land through which a stream
passes, on both sides of said stream, to establish a bridge
or ferry thereon at his own expense, and charge toll for
crossing, is to be construed in harmony with this section and
so construing, section 761 is only to be understood to apply
to a private ferry, which the owner of the lands may es-
tablish for his private use, and which he may also occasion-
ally use for carrying others over and charge toll therefor,
but which he can not commonly and usually use for such
purpose, so as to make the same a public ferry. Greer v.
Haugabook, 47 Ga. 282.
The rights of owner erecting bridge under § 761 were not
affected by the subsequent passage of this section. Tift v.
Dougherty, 74 Ga. 340, 343.
§ 3640. (§ 3064.) Franchise, when exclusive. —
No franchise granted by this State shall be held to
be exclusive, unless plainly and expressly so de-
clared to be in the grant.
Cross References. — See 2 Enc. Dig. 544. As to how dis-
tance computed when exclusive right is granted, see § 759.
As to whether grants to land on watercourses with the ap-
purtenances convey right to public bridge or ferry, see §
779. As to whether grant of ferry franchise conveys right
to build a bridge, see § 780. As to definition of special
franchise, see § 1019. As to rights of purchasers of such
franchise, see § 2927. As to whether grantee of franchise
takes anything by implication, see § 3809. As to rules of
interpretation, see § 4268.
Strict Construction of Grants. — Grants of exclusive privi-
leges to a corporation or an individual, are to be strictly
construed. McLeod v. Burroughs, 9 Ga. 213. For other
syllibi of this case, see 2 Enc. Dig. 544.
§ 3641. (§ 3065.) Private ways. — The right of
private way over another's land may arise from ex-
press grant; or from prescription by seven years
uninterrupted use through improved lands, or
twenty years use over wild lands; or by implica-
tion of law when such right is necessary to the en-
joyment of lands granted by the same owner; or by
compulsory purchase and sale through the ordi-
nary, in the manner prescribed by this Code.
Cross References. — -For full treatment of private ways, see
9 Cum. Dig. 607 et seq.; 10 Enc. Dig. 608 et seq. As to
assessment of damages for right of way, see § 778. As to
who may grant private ways, see § 807. As to obtaining
private way by prescription, see § 824. As to ancient lights,
see § 3618. As to unlawful interference with the right of
way, see § 4478. As to When private ways may be granted,
see § 6388.
This section is the general section in reference to the
modes of acquiring the right of private way over the lands
of another. Watkins v. Country Club, 120 Ga. 45, 48, 47 S.
E- 538.
Section 824 Not in Conflict with This Section. — The provi-
sions of § 824 (that "whenever a private way has been in
constant and uninterrupted use for seven years or more,
and no legal steps have been taken to abolish the same, it
shall not be lawful for any one to interfere with such pri-
vate way,") and this section can stand together by con-
struing the seven years in the first section to refer to im-
proved lands. Watkins v. Country Club, 120 Ga. 45, 47 S. E-
538.
Section Does Not Apply When Owner Receives Compensa-
tion.— The principles of this section are not to be confounded
with the principles of sections regulating the establishment
of a new or necessary way in any of those cases wherein
adequate compensation to the landowner is provided. Hen-
dricks v. Carter, 21 Ga. App. 527, 94 S. F. 807.
Continuous and Uninterrupted Use. — If a private way was
less than 15 feet in width, and the prescriber kept it in re-
pair and used it as such continuously for the statutory period
required by this section, and §§ 818, 824, he would acquire
a private way by prescription. Carlton v. Seaboard Air-
Line Railway, 143 Ga. 516, 85 S. F- 863.
The use of a private way through the improved lands of
another for a period of seven years, to constitute a pre-
scriptive right, must be shown to have been uninterrupted
to come within the terms of this section. Puryear v. Cle-
ments, 53 Ga. 232.
Way by Implication. — At common law, where the grantor
conveyed land otherwise inaccessible, there was of necessity
an implication that he had unintentionally omitted to con-
vey a means of access thereto. This necessary implication
entitled the land-locked grantee to a way out to whatever
public or private roads furnished access to the original
tract, — in the laying out of which due regard, of course,
had to be bad to the convenience of the grantor. Such ways
by implication are still recognized in this State by this sec-
tion. Gaines v. Lunsford, 120 Ga. 370, 371, 47 S. F- 967/
Improved Lands. — "Improved lands," in the sense in which
the phrase is used in this section comprehends the entire
tract, though only part thereof be in actual cultivation; the
woodland on such a tract is not wild land, but in connec-
tion with that portion which is cultivated constitutes a
single tract of "improved land." Hopkins v. Roach, 127 Ga.
153, 56 S. F. 303.
If a railroad was constructed and the tracks were made
to cross the private way by means of a trestle, the land of
the railroad company at such point of intersection was "im-
proved land" within the meaning of this section and §§ 818,
824 and the period of prescription would be seven years.
Carlton v. Seaboard Air -Line Railway, 143 Ga. 516, 85 S.
F. 863.
Same — "Wild Lands." — "Wild lands," as used in this sec-
tion is evidently used in contradistinction to the descriptive
words "improved lands." Watkins v. County Club, 120 Ga.
45, 49, 47 S. F. 538.
Proceedings to Procure. — Sections 807-812 set out no exact
formula of words in reference to the proceeding to procure
a private way, but they all refer to the same provision of
law (this section) by which a private way may be acquired
"by compulsory purchase and sale through the ordinary * * *."
Neal v. Neal, 122 Ga. 804, 806, 50 S. E- 929.
A petition under this section should allege and the evi-
dence show that the land through which the road ran was
improved. Failing to do so it is subject to special demurrer.
Watkins v. Country Club, 120 Ga. 45, 47 S. F. 538.
But a petition, although it does not allege that lands are
improved, is sufficient in the absence of demurrer, where it
shows that the way was given by the landowner, and the
evidence shows that at least part of way ran through "fields."
Kirkland v. Pitman, 122 Ga. 256, 261, 50 S. F- 117.
A prescription under this section and sections 818, 824 may
arise notwithstanding the prescriber may know that the land
over which he undertakes to prescribe is the property of
another. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 521,
85 S. F. 863.
Protection of Right. — In the absence of an adequate remedy
at law, equity will protect the right to use a private way.
Phinizy v. Gardner, 159 Ga. 136, 125 S. F- 195.
Applied in Hill v. Miller, 144 Ga. 404, 406, 87 S. F. 385.
§ 3642. (§ 3066.) Necessity ceasing, way ceases.
— Where a way of necessity is appurtenant to land,
and the owner thereof purchases other land and
makes, or can make, a way of access to a highway
over his own land, the way of necessity ceases.
For full treatment of ways of necessity, see 9 Cum. Dig.
617, 10 Fnc. Dig. 614.
Editor's Note.— This section is based upon the decision ot
Russell v. Napier, 82 Ga. 770, 9 S. F- 746, and first appeared
in the Code of 1895. The language of the section is almost
identical with that of the court in the case cited above. The
court quoting Washburn on Easements and Servitudes p.
235 (3rd ed.) further states that: "The necessity limits the
duration of the grant, and this applies as well to a subse-
quent owner of the estate to which such way attaches, as
to the first grantee in whose favor it was originally raised.
It is not enough that it continues to be a way of conven-
ience, if it ceases to be indispensable as a means of access
to the land."
When Necessity Ceases — Other Road. — The use of the com-
mon law phrase "way of necessity" and the many authorities
holding that wherever necessity ceases the right to such
way ceases (this section) lead to the conclusion that if the
[ 1000 ]
§ 3643
FJSKSUJNAJLTY
§ 3646
owner of the landlocked farm can reach a highway by means
of another private or quasi private road he is not under
that necessity which above entitles him to condemn the land
of his neighbor. Gaines v. Lunsford, 120 Ga. 370, 47 S. E-
967.
Where the evidence fails to show any necessity for the
wav, under this section, the way ceases. Charleston, etc.,
R. "Co. v. Fleming, 118 Ga. 699, 45 S. E- 664.
§ 3643. (§ 3067.) Charges on land. — Annui-
ties, or legacies, or debts charged upon lands by
testaments attach thereto and follow the lands in
the hands of all persons.
See 12 Enc. Dig. 880.
Editor's Note. — The case of Hunter v. Stembridge, 12 Ga.
192, applies the doctrine laid down in this section, but does
not cite any section or act. It was decided in 1852 and this
section first appeared in the Code of 1863. It seems pro6able
that this section is based upon this case.
Charge a Lien. — Where testator gave his wife the land in
question absolutely during life or widowhood, and then pro-
vided if his wife so elected his executors should sell the land,
it was held such a charge as is created by this item of the
will is a lien on the land under this section. Tate v.
Chandler, 115 Ga. 462, 464, 41 S. E- 647.
Charge Follows Land. — The support of the granddaughter,
being a charge upon the property, under this section, it fol-
lowed the land in dispute into the hands of the purchasers
at the executor's sale as it was not sold to pay debts of the
testator. Bell v. Watkins, 104 Ga. 345, 30 S. E. 756. For
more complete note of this case, see 12 Enc. Dig. 881.
Payment of Other Legacies. — See 12 Enc. Dig. 882.
§ 3644. (§ 3068.) Forfeiture or abandonment of
easement. — An easement may be lost by abandon-
ment, or forfeited by non-user, if the abandonment
or non-user continue for a term sufficient to raise
the presumption of release or abandonment.
See 5 Cum. Dig. Ill, 4 Enc. Dig. 751.
Editor's Note. — This section is based upon the decision of
Winham v. McGuire, 51 Ga. 578, decided in 1874 and first
appearing in the Code of 1895. The language of the section
is practically the same as that of the case.
Easement Acquired by Grant. — Where an easement has
been acquired by grant, a mere non-user without further
evidence of an intent to abandon it will not constitute aban-
donment. Savannah v. Barnes, 148 Ga. 317, 96 S. E. 625.
Applicable to Municipal Corporation. — Before a municipality
can acquire by dedications an easement over a tract of land,
for use by the public as a street, there must be an accept-
ance of the easement by the municipality. While prescrip-
tion does not run against a municipal corporation with re-
spect to land granted to it for the use of the public, yet a
municipal corporation may, by abandonment, under this sec-
tion, relinquish its control over a street which has been
dedicated to it for public use. Kelsoe v. Oglethorpe, 120
Ga. 951, 48 S. E. 366.
This section applies to a municipal corporation as well as
an individual. Savannah v. Barnes, 148 Ga. 317, 320, 96 S.
E. 625; Mayor v. Bartow, 137 Ga. 198, 204, 72 S. E. 1095.
Title — Not Lost by Neglect. — Where prescription to a pri-
vate way has ripened, title is divested by abandonment un-
der this section and § 4771, though not by neglect, and the
duty to repair continues. Kirkland v. Pitman, 122 Ga. 256,
50 S. E. 117.
Right — Lost by Discontinuance. — A right acquired by the
public to use a watercourse not navigable may be lost by
a discontinuance of such use for a time sufficient to justify
an inference of abandonment under this section. Seaboard
Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S. E. 868.
Same — Absolute Refusal to Exercise Privileges. — An ease-
ment may be lost or forfeited under this section by the
owner without his "absolute refusal" to exercise his privi-
leges thereunder. McElwaney v. MacDiarmid, 131 Ga. 97,
62 S. E. 20.
Weight and Sufficiency of Evidence. — Evidence held to
show that if any easement of way in the streets now in
controversy ever existed in the purchases of lots in another
division of such tract, there had been an abandonment or
forfeiture by non-user under the terms of this section.
Mayor v. Bartow, 137 Ga. 198, 72 S. E. 1095.
Same — Decisive and Unequivocal. — The evidence to establish
a forfeiture of an easement by abandonment or non-user
must be decisive and unequivocal under this section. Gaston
v. Gainesville R. Co., 120 Ga. 516, 48 S. E. 188.
In a suit by one mill-owner against a lower mill-owner on
■the same stream, to recover damages alleged to have been
sustained in consequence of the raising of the height of a
dam by the lower mill-owner so as to back the water in the
stream to a height that interfered with the operation of the
plaintiff's mill, there was evidence from which the jury
would have been authorized to find that for more than
twenty years the dam of the lower mill-owner had been
erected and maintained at such a height as to back the water
up to its present level before the erection of the upper mill,
and that if there had been a subsidence of the waters in
the mill-pond, so that the flowage backward did not affect
the wheel of the upper mill-owner, such subsidence was in
consequence of leakage; that the raising of the water had
been caused, not by raising the height of the lower dam,
but the repairing thereof; that the lowering of the level of
the water had been temporary, caused by use of the water
or leakage, and not for such a length of time as would
cause a less of the easement by abandonment or forfeiture
by nonuser, under the provisions of this section. Monroe
v. Estes, 139 Ga. 729, 78 S. E. 130.
Question for Jury. — It would be a question for the jury
under all the facts, to determine whether a right once ac-
quired by continuous use was subsequently abandoned un-
der this section, by non-use. Seaboard Air-Line Ry. v.
Sikes, 4 Ga. App. 7, 60 S. E. 868.
Abandonment (as used in this section) is a mixed ques-
tion of law and fact. Mayor v. Bartow Investment Co.,
137 Ga. 198, 204; Gaston v. Gainesville R. Co., 120 Ga. 516,
48 S. E. 188.
§ 3645. (§ 3069.) Parol license, when not re-
vocable.— A parol license is primarily revocable at
any time, if its revocation does no harm to the per-
son to whom it has been granted; but is not re-
vocable when the licensee has executed it and in so
doing has incurred expense. In such case it be-
comes an easement running with the land.
Editor's Note. — This section is based upon the decisions of
Sheffield et al v. Collier, 3 Ga. 82, decided in 1847; South-
western Railroad v. Mitchell, 69 Ga. 114, decided in 1882 and
City Council v. Burum, 93 Ga. 68, decided in 1893. These
cases apply the doctrine laid down in this section which
first appeared in the Code of 1895.
Effect of License Executed. — Under this section a license
to prospect gold for half could not be revoked after the li-
cense by much labor and at considerable expense located
and developed gold. Brown v. Bowman, 119 Ga. 153, 46 S.
E. 410.
License in Writing. — It was held under this section that
the right to cut and remove the timber not being a mere
license resting in parol, but being in writing and for a value,
the licensee stands upon the footing of a purchaser for
value, and the right or license is not revocable at the will
of the grantor. Harrell v. Williams & Son, 159 Ga. 230.
Illustrations. — See Cherokee Mills v. Standard Cotton
Mills, 138 Ga. 856, 76 S. E. 373.
Where an owner of land, by a written instrument under
seal, conveys to another the privilege of building a store-
house on the land, and agrees in such instrument that the
grantee shall have "the use of the said property, free of
rent, so long as he desires to use it," and that when such
grantee and his successors fail to use it as a business-house
then the grantee shall have the privilege of selling the house
or removing it, and where the grantee, upon the faith of
such conveyance, incurs expense" in erecting such a house
upon a lot designated by the owner for the purposes con-
templated by the parties, the grantee thereby acquires an
easement under this section and such an interest in the prop-
erty conveyed as is assignable by him and can not be re-
voked by the grantor. Ainslie v. Eason, 107 Ga. 747, 33 S.
E- 711.
Under this section a telegraph company, which with the
consent of a railroad company built its lines upon the lat-
ter's right of way, and has maintained, renewed, and
operated the same for 40 or 50 years, acquired a perpetual
easement. Western Union Tel. Co. v. Georgia R., etc., Co.,
227 Fed. 276, 292.
CHAPTER 2.
Of Personalty.
§ 3646. (§ 3070.) What is. — Personalty, or
personal estate, includes all such property as is
movable in its nature; in fact, everything having
value inherent in itself, or the representative of
value, and not included in the definition of realty.
[ 1001 ]
§ 3647
PERSONALTY
§ 3651(1)
Stocks representing shares in an incorporated
company holding lands, or a franchise in or over
lands, are personalty. Acts 1883, p. 57; 1893, p. 35.
Cross References.— See Personalty, 9 Cum. Dig. 366; Stock
and Stockholders, 10 Cum. Dig. 537, 11 Enc. Dig. 875. As
to detached realty, see § 3622. As to stock in insurance
company deemed personalty, see § 2398. As to stock in
navigation companies deemed personalty, see § 2573. As
to stock of railroad companies, see § 2583. As to capital
stock of trust company, see § 2820. As to crops, see §
3651(1).
Editor's Note. — The decision in the case of Eagle, etc.,
Mfg. Co. v. West, 61 Ga. 120, was based upon § 2337 of the
Code of 1873 which was identical with this section except
that § 2237 provided that "Stocks * * * are personalty except
in mining manufacturing companies whose principal invest-
ments are in realty and machinery attached thereto, in
which case the stocks shall be deemed realty." It is the
same in the Code of 1882. By acts 1883, p. 56, § 2237 was
amended so as to read "But the stock representing shares
in manufacturing companies may be transferred from one
person to another, for any purpose whatsoever, by the same
means as are, or may be, allowed by law for the transfer
of personal property," the effect of which was to make stock
representing shares in manufacturing companies transferable
as personalty. By the acts of 1893, p. 35, § 2237 was again
amended. All of the section after the word personalty in
the sixth line was stricken out, thus leaving the present
section (this section). The effect of this amendment was to
declare that shares of stock in incorporated companies shall
be deemed personalty.
Stock in a non-resident railroad corporation owned by a
domestic railroad is personal property under this section.
Greene County v. Wright, 126 Ga. 504, 54 S. E. 951, citing
Wright v. L. & N. R. R. Co., 195 U. S. 219.
Shares of corporate stock held to be personalty under this
section. Hamil v. Flowers, 133 Ga. 216, 65 S. E- 961.
Shares of stock of domestic corporation certificates of
which was held by foreign corporation as transferee held
personalty under this section. Peoples Nat. Bank v. Cleve-
land, 117 Ga. 908, 44 S. E. 20.
A bond for title is personalty under this section. Copeland
v. Pyles, 25 Ga. App. 95, 102 S. E. 552.
Movable fixtures are considered personal property under
this section. McCall v. Walter, 71 Ga. 287. See § 3621, and
notes thereto.
§ 3647. (§ 3071.) Possession. — Personalty in
possession is where the right of property is accom-
panied by immediate possession, actual or con-
structive.
See 9 Cum. Dig. 366. As to mere possession as giving
right of action, see § 4482.
§ 3648, (§ 3072.) Chose in action. — Personalty
to which the owner has a right of possession in
future, or a right of immediate possession, wrong-
fully withheld, is termed by the law a chose in ac-
tion.
Cross References. — See § 3652. See Personalty, 9 Cum.
Dig. 366. As to assignment of choses in action, see § 3653.
Rent is personalty under this section. Few v. Pon, 32 Ga.
App. 620, 627, 124 S. E- 372.
Transferee of bill of lading, right to maintain an action
against the carrier for failure to deliver to him all or any
of the goods specified in the bill of lading is a chose in ac-
tion under this section. Askew v. Southern Ry. Co., 1 Ga.
App. 79, 58 S. E. 242.
Transferee of personal property, right to maintain an ac-
tion for any damage done to property assigned while still
in defendant's possession is a chose in action under this
section. Benjamin-Ozburn v. Morrow Transfer, etc., Co.,
13. Ga. App. 636, 79 S. E- 753.
An unpaid subscription to the capital stock of a corpora-
tion, after a call has been made is a chose in action under
this section. Lynah v. Citizens', etc., Bank, 136 Ga. 344,
71 S. E- 469.
§ 3649. (§ 3073.) Property in wild animals, etc.
— Property may exist in all animals, birds, and
fishes. To constitute property in those which are
wild by nature, as distinguished from domestic
animals, - one must have them within his actual
possession, custody, or control; this he may obtain
either by taming or domesticating them, or by con-
fining them within restricted limits, or by killing or
capturing them.
As to animals ferae natural, see 1 Enc. Dig. 386.
Deer are not treated in law as domestic, it would require
positive or circumstantial evidence to show that a particular
deer had lost its natural quality of wildness by being do-
mesticated or confined under this section. Crosby v. State,
121 Ga. 198, 200, 48 S. E. 913.
§ 3650. (§ 3Q74.) Deposit and increase on land.
— Any deposit made by wild animals on realty be-
longs to the owner; thus honey deposited by bees
in a tree belongs to the owner of the tree, though
the bees may be hived by another; so the eggs and
young of birds or the increase of animals, so long
as they remain unable to leave the land, belong to
the owner.
As to who is the owner of a natural increase of the prop-
erty, see § 3667.
§ 3651. (§ 3075.) Increase follows mother. —
The increase of all animals follow the condition of
the mother and belong to the owner of the mother
at the time of birth.
See 1 Cum. Dig. 455. As to lien on get of stallions, jacks,
etc., see § 3361.
Declaratory of Common Law. — This section confers no ad-
ditional rights on a mortgagee. It is simply a statement
of the common-law rule that "the brood belongs to the
owner of the dam or mother, — partus sequitur ventrem."
Dixon v. Pierce, 22 Ga. App. 291, 293, 95 S. E. 995.
Conditional Bill of Sale — Rights of Vendee. — A bill of sale
for a mare, then in foal but not so described, provided that
title to the mare should remain in the vendor till payment
of the purchase-price; the instrument was recorded; the
vendee sold the mare's colt, to one who had no actual no-
tice of the title of the vendor of the mare. Held, under
this section, that, until the purchase-money of the mare
was fully paid, the purchaser of the colt did not acquire
title thereto as against the vendor of the mare who was the
owner. Anderson v. Eeverette, 116 Ga. 732, 42 S. E. 1026;
Mortgage on Animals — Rights of Mortgagee. — Inasmuch
as a mortgage in this state does not transfer title, but
gives only a lien on the property included therein, pursuant
to this section, a mortgage on domestic animals does not
cover the increase thereof where there is no express men-
tion of such increase in the instrument itself. Such in-
crease may be sold by the mortgagor as his own, and a
purchaser from him gets a good title as against the mort-
gagee. Dixon v. Pierce, 22 Ga. App. 291, 95 S. E. 995.
Entitled to Recover Bitch and Puppies. — Under this sec-
tion of the code the plaintiff was entitled to recover not
only a bitch which was wrongfully taken from his posses-
sion, but also the puppies afterwards born of her. Johnson
v. Stevens, 19 Ga. App. 192, 91 S. E. 220.
Express Contract Necessary to Give Title. — Under the
provisions of this section the mere fact that the defendant
might have paid the foaling fee or fed colts could not give
him title, unless there was an express contract to this ef-
fect. Walton v. Mitchell, 11 Ga. App. 159, 160, 74 S. E.
1006.
§ 3651(1). Crops; liens, how attested and re-
corded; levies on unmatured crops. — All crops, ma-
tured or unmatured, shall be and the same hereby
are declared to be personalty. Mortgages or other
liens or conveyances of crops, matured or un-
matured, shall be attested and recorded as chattel
mortgages and under the laws governing same.
Nothing in this Act shall be construed to permit
levies on unmatured crops but such levies and sales
are expressly forbidden except as is now provided
by law. Acts 1922, p. 115.
As to effect of severance, see § 3622.
Editor's Note.— This section changed the law in Georgia
on this subject. Prior to its enactment crops until severed
were considered as part of the realty. Therefore an instru-
ment passing title to growing crops was not a bill of sale to
personalty. Assuming that such an instrument would have
been transformed into a bill of personalty, upon a severance
of the crop from the realty, its admittance to record be-
fore such transformation would not be a record of the trans-
formed instrument.
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§ 3652
PERSONALTY
§ 3653
In order for such instrument to have been admitted to
record it was necessary that at least two witnesses, one of
whom was an official witness, should have attested it.
Washington, etc., Co. v. Bank, 30 Ga. App. 76, 116 S. E.
657; Kelly v. Mills, 30 Ga. App. 609, 118 S. E- 593. But
even though such instrument was not properly attested it
was valid and binding between the parties and admissible in
evidence as between them. Carithers v. Whitehead, 30 Ga.
App. 614, 118 S. E- 578.
The makers of a mortgage of growing crops were re-
quired to execute the paper in such form as to be admissible
to record and where they failed to do so were estopped from
setting up such defense. Whatley v. Va., etc., Co., 31 Ga.
App. 226, 120 S. E. 436.
Section Not Retroactive. — Where a sale was had after the
act became effective under a power of sale in a security
deed made prior to the act, the growing crops on the land
at the time of sale passed as realty under the prior law.
Va.-Car. Chem. Co. v. Floyd, 189 Ga. 3ll, 555, 125 S. E. 709,
126 S. E. 378.
Notwithstanding this act, the purchaser of lands under a
power of sale in a security deed of older date than said
act, after its passage, acquired title to crops growing on such
lands, grown after the passage of this act, if they were
grown and owned by the grantor in such deed; but if the
grantor had in fact, prior to such sale, rented in good faith
these lands to others, who raised such crops, such purchaser
did not acquire title to them, but only the interest of the
grantor in such deed in these crops. Chason v. O'Neal. 158
Ga. 725, 124 S. E- 319.
§ 3652. (§ 3076.) Rights and remedies. — For
every violation of a contract express or implied,
and for every injury done by another to person or
property, the law gives a right to recover, and a
remedy to enforce it. Such a right is a chose in ac-
tion, and such a remedy is an action or suit at law.
Cross References. — See 1 Cum. Dig. 169; 1 Enc. Dig. 125.
As to covenant not to sue, see § 4308. As to general prin-
ciple regarding remedy, see § 5506. As to definition of an
action, see § 5507.
Not Declaratory of Common Law as Actually Practical. —
Our doctrine, announced as a fundamental, in this section
and § 5506, that for every right there is a remedy, and
every court having jurisdiction of the one may if necessary
frame the other, is not declaratory of the common law as
actually practised. Lacey v. Hutchinson, 5 Ga. App. 865,
868, 64 S. E. 105.'
Remedy. — A suit under this section and § 5507 is nothing
but a remedy which the law gives to enforce a right, aris-
ing from the violation of a contract, or for an injury done
to person or property. Chisholm v. Lewis & Co., 66 Ga.
729, 731.
Right of Wife to Recover for Husband's Tort. — Under this
and §§ 2993, 2994, a wife can not recover of a husband, with
whom she is living in lawful wedlock, for a tort resulting
from his negligent operation of an automobile in which they
were riding at the time of the injury. Heyman v. Heyman,
19 Ga. App. 634, 92 S. E. 25.
Unlawful Imprisonment. — This section and § 5506 would
sound as hollow mockeries if a person however humble or
even debased could be unlawfully held in prison and com-
pelled to work for another, who with full knowledge of the
wrong should take part in and benefit by it, but the wrong
person should have no remedy. Chattahochee Brick Co. v.
Goings, 135 Ga. 529, 536, 69 S. E. 865.
Right and remedy under this section and § 5506 should
harmonize, unless the law forbids. Cox v. Strictland, 120
Ga. 104, 108, 47 S. E. 912.
There can be no right of action until there has been a
wrong, — a violation of a legal right. Upon the commission
of the wrong, a right of action is given by the adjective
law under this section. Columbus v. Anglin, 120 Ga. 785,
790, 48 S. E. 318.
Nothing is needed under this section and §§ 4502, 4507 but
a right in the plaintiff and some invasion of that right by
the defendant to create a right of action. Stafford v. Mad-
dox, 87 Ga. 537, 540, 13 S. E. 559.
Illegal Invasion of Right. — In order for the plaintiff to re-
cover in an action for overflowing his land by the defend-
ant's mill dam, he is not obliged to prove special damages.
If his right has been illegally invaded, he has the right to
recover under this section and may recover nominal dam
Hges for its vindication under §§ 4502, 4507. Ellington v.
Bennett, 59 Ga. 286. See §§ 4502, 4507 and notes thereto.
Right of action for tort is a chose in action under this
section. Gamble v. Central. R., etc., Co., 80 Ga. 595, 599, 7
S. E- 315; Central R., etc., Co. v. Brunswick, etc., R. Co.,
87 Ga. 386, 389, 13 S. E. 520.
County Damaging Private Property. — Construing § 6388 of
the constitution and §§ 383, 5506, 6512 and this section to-
gether, a right of action exists against a county for damag-
ing private property for public uses. Smith v. Floyd
County, 85 Ga. 420, 11 S. E- 850.
§ 3653. (§ 3077.) Assignment of choses in action.
— All choses in action arising upon contract may
be assigned so as to vest the title in the assignee,
but he takes it, except negotiable securities, sub-
ject to the equities existing between the assignor
and debtor at the time of the assignment, and until
notice of the assignment is given to the person li-
able.
I. Editors Note.
II. Definition and General Consideration.
III. What Is Assignable.
A. At Common Law.
B. Under this Section.
1. In General.
2. Particular Choses Considered.
IV. Requisites and Validity.
A. In General.
B. Acceptance.
C. Method or Manner of Transfer.
V. Rights and Liabilities of Parties.
VI. Equitable Assignment.
VII. Pleading and Practice.
Cross References.
See 2 Cum. Dig. 163, 171 et seq. ; 1 Enc. Dig. 592, 600; 2
Cum. Dig. 820. As to assignments of liens, see §§ 3345-
3347. As to assignability of liens, see § 3372. As to title
conveyed, see § 4118. As to negotiability of bonds, see §
4274. As to whether purchaser takes note on contract sub-
ject to equities, see § 4294. As to liability of chose in ac-
tion to be seized and sold under execution, see § 5948.
I. EDITOR'S NOTE.
The literal interpretation of this section does not require
an assignment of a chose in action to be in writing. But
the court in the case of Turk v. Cook, 63 Ga. 681, held that
an assignment within the terms of this section must be in
writing. The court stated: "That in our judgment is the
proper interpretation of this section. An assignment in law
as defined by Webster in his dictionary is a transfer of title
or interest by writing, and this construction of that section
cited above is in accordance with sound public policy."
The case was followed in Banks v. Prater, 64 Ga. 613;
Daniel & Co. v. Tarver, 70 Ga. 208; Riley v. Hicks, 81 Ga.
265, 7 S. E- 173; Baer v. English & Co., 84 Ga. 403, 11 S.
E- 453; Greenwood v. Boyd, etc., Furniture Factory, 86 Ga.
582, 13 S. E. 128; First National Bank v. Hartman Steel
Co., 87 Ga. 435, 438, 13 S. E. 586, and many other decisions.
See 2 Cum. Dig. 173, 1 Enc. Dig. 600.
However, by the trend of later decisions, it would seem
that, the fact that an assignment is by parol does not affect
the validity of the assignment, but merely curtails the
rights of the assignee to those of an equitable owner. In
other words, the legal title does not pass by an oral assign-
ment. See Lamon v. Perry, 33 Ga. App. 248, 250, 125 S. E-
907, where it is said: "While one who takes a chose in ac-
tion by oral assignment under facts and circumstances ren-
dering it valid as an equitable transfer has the rights of an
equitable owner under what is termed an equitable assign-
ment, a wri'tten assignment at law is necessary to entitle
the owner to sue in a direct action at law in his own name,"
citing, Benson v. Abbott. 95 Ga. 69, 72, 22 S: E- 127; Florida
Coca-Cola Co. v. Ricker, 136 Ga. 411, 417, 71 S. E. 734; Few
v. Pow, 32 Ga. App. 620, 124 S. E. 372. Hence it would
seem that the dictum contained in Baer v. English, 84 Ga.
403, 406, 11 S. E. 453, that: "the doctrine of equitable -as-
signment of choses in action, since the adoption of this sec-
tion, no longer applies in Georgia," is of little value.
II. DEFINITION AND GENERAL CONSIDERATION.
See post this note, "Method or Manner of Transfer.'-
IV, c.
"Assigned" Means "Transferred." — The term "assigned,"
as provided in this section, is used in the sense of "trans-
ferred." Haug v. Riley, 101 Ga. 372, 379, 29 S. E- 44.
Intent of Legislature as to Negotiable Securities. — The
legislature, upon its adoption of the first code, undertook
by this section to effect a change in the law regarding the
assignability of non-negotiable choses in action, but to leave
negotiable securities upon the same footing as that upon
[ 1003 ]
§ 3653
PERSONALTY
§ 3653
which they had always stood. Haug v. Riley, 101 Ga. 372,
380, 29 S. E- 44.
Same— Presumption.— This section plainly alters the prior
law as to passing title; but not necessarily any further be-
cause the words "negotiable securities," as here used, may
be used in the restricted sense in which they were employed
prior to the Code. The presumption is that way. Cohen v.
Prater, 56 Ga. 204, 205.
Same — Reason for Mentioning Negotiable Securities. —
"Obviously, the only reason for mentioning 'negotiable se-
curities' at all was to negative any possible inference which
might be drawn from the use of the general words, 'all
choses in action arising upon contract,' that the section was
intended in any manner to affect the status of such securi-
ties." Haug v. Riley, 101 Ga. 372, 379, 29 S. E. 44.
Sections to Be Construed in Harmony. — The language of
§ 5969 must be so construed as to harmonize with the gen-
eral intent of the section to which it belongs and of this
section and § 4274 which relate to the same subject. West-
ern Nat. Bank v. Maverick Nat. Bank, 90 Ga. 339, 345, 16
S. E. 942.
III. WHAT IS ASSIGNABLE.
A. At Common Law.
See post this note, "Pleading and Practice," VII.
History- — "The history of the subject of assignments of
rights of action begins with the legal theory that rights of
action can not be assigned at all, on the ground that one
who claims as the mere assignee of a right of action must
fail in the attempt to enforce the right, because he is not
in privity with the person against whom the obligation ex-
ists. In the course of ages evolution has wrought changes,
and the changes have wrought some confusion." Sullivan v.
Curling, 149 Ga. 96, 97, 99 S. E. 533.
Obviously the codifiers who prepared this code in 1863 had
in mind the ancient rule that no chose in action was as-
signable, and their purpose was to except choses in action
arising ex contractu. Authority was delegated to them to
prepare a code "which should, as near as practicable, em-
brace in a condensed form the laws of Georgia, whether de-
rived from the common law, the constitutions, the statutes
of the State, the decisions of the Supreme Court, or the
statutes of England, of force in this State." Since in this
section no provision was made for assigning choses in ac-
tion arising from torts, the law in that regard was unal-
tered, under the principle expressio unius exclusio alterius.
Sullivan v. Curling, 149 Ga. 96, 98, 99 S. E- 533.
Section Changes Common Law Rule. — The rule that at
common law choses in action were not assignable so as to
convey title, but only an equitable interest has been changed
by this section. Cowart v. Singletary, 140 Ga. 435, 445, 79
S. E. 196; Ellis v. Dudley, 19 Ga. App. 566, 570, 91 S. E-
904; Parker v. Planters Bank, 142 Ga. 160, 82 S. E- 556.
B. Under This Section.
1. In General.
Applies to All Choses. — Under this section all choses in ac-
tion are assignable. Few v. Pou, 32 Ga. App. 620, 627, 124
S. E- 372; Lamon v. Perry, 33 Ga. App. 248, 250, 125 S. E.
907; Herring v. First Nat. Bank, 13 Ga. App. 492, 494, 79
S. E. 359; Hartford Ins. Co. v. Amos, 98 Ga. 533, 534, 25 S.
E. 575.
Legal Title. — Under this section the legal title to choses in
action is assignable. Western Nat. Bank v. Maverick Nat.
Bank, 90 Ga. 339, 342, 16 S. E- 942. See also, Planter's
Bank v. Prater, 64 Ga. 610, 614; Baer v. English & Co., 84
Ga. 403, 406, 11 S. E. 453.
Effect of Insolvency of Owner. — By virtue of this section
the insolvency of the owner since the change of policy
brought in by § 3224 being no obstacle to assigning such
choses in action as collateral security, they are no less as-
signable for that purpose than are negotiable securities.
Boykin v. Epstein, 94 Ga. 750, 761, 22 S. E- 218.
2. Particular Choses Considered.
See post this note, VII.
Contracts — General Rule.— By this section all choses in ac-
tion arising upon contract are assignable, but with full pro-
tection to the debtor as to all equities up to the time of
notice. Gilmore v. Bangs, 55 Ga. 403, 405; Baer v. English
& Co., 84 Ga. 403, 406, 11 S. E. 453. See § 4274.
Same — Exception to Rule — Relationship of Personal Confi-
dence.— While, as a general proposition, all choses in action
arising upon contract and involving property rights may be
assigned so as to vest title in the assignee under this sec-
tion and § 3654, there is a well recognized exception to this
rule, which applies in those instances where the contract
involves a relation of personal confidence, such as to show
that the party conferring the rights must necessarily have
intended them to be exercised only by him upon whom they
were actually conferred. Adair v. Smith, 23 Ga. App. 290,
98 S. E. 224; Tifton, etc., Ry. Co. v. Bedgood & Co., 116
Ga. 945, 43 S. E. 257. This rule is analogous to the doctrine
enunciated in § 3571, that a principal can not employ an
agent to perform acts which involve particular skill, dis- .
cretion, etc., and which were entrusted to the principal. Ed.
Note. See the notes to § 3571.
Same — Claim Arising from Breach. — The claim arising from
the breach of contract to become surety on a guano note
was assignable under this section and § 3155. Adams v.
Williams, 125 Ga. 430, 433, 54 S. E- 99.
Same — Involving Right of Property. — Construing this sec-
tion and § 3655 together., it is clear that any chose in ac-
tion which arises from contract or involves, "directly or in-
directly a right of property" may be assigned. Benjamin-
Ozburn Co. v. Morrow Transfer, etc., Co., 13 Ga. App. 636,
637, 79 S. E- 753. And the rule of contracts also applies
where property is involved. See note of Colter v. Livings-
ton, 154 Ga. 401, 408,' 114 S. E- 430, following in this annota-
tion.
Stock in Corporation. — A subscription to the capital stock
of a railroad company is a chose in action and assignable
under this section, and the assignee can enforce its payment
under circumstances where the company could do so.
Chattanooga R. R. Co. v. Warthen, 98 Ga. 599, 616, 25 S.
E. 988. As to transfer of shares in corporation when com-
plete, see § 2219, and notes thereto.
The transfer of a note is fully within the terms of this
section. Jackson v. State, 5 Ga. App. 177, 183, 62 S. E. 726.
Accounts. — An account is assignable under this section.
See Barron v. Walker, 80 Ga. 121, 123, 7 S. E- 272; Cen-
tral R. Co. v. King Bros., 127 Ga. 369, 73 S. E- 632; Mor-
decae v. Stewart, 37 Ga. 364, 384; Akin v. Feagin, 90 Ga.
72, 15 S. E- 654.
Right of Action for Tort. — See § 3655 and notes thereto.
While an action is pending for a tort, there can be no
legal assignment of the cause of action or of the damages to
be recovered, because under § 3652 rights of action are
choses in action and this section treats' them by implication
as non-assignable. Gamble v. Central R., etc., Co., 80 Ga.
595, 598, 7 S. E. 315.
Since in this section no provision was made for assigning
choses in action arising from torts, the law in that regard
was unaltered, under the principle expresio unius exclusio
alterius. Sullivan v. Curling, 149 Ga. 96, 98, 99 S. E- 533."
See § 3655 and notes thereto where it is made statutory
that "a right of action for personal torts or for injuries
arising from fraud" are not assignable.
Therefore, an action of deceit (arising under § 4410) being
a tort is not assignable, the assignability of choses in ac-
tion being confined to such as arise out of contract under
this section. Bates & Co. v. Forsyth, 64 Ga. 232, 236, S.
C, 69 Ga. 365, 368.
But, a chose in action based on a tort is transferable
where it involves, directly, a right of property, Lamon v.
Perry, 33 Ga. App. 248, 250, 125 S. E. 907, while the action
for tort is not assignable under this section. Colter v.
Livingston, 154 Ga. 401, 408, 114 S. E- 430.
This section and § 3655 distinguish damages to property
and damages to person, and under them a right of action
for damage to the person can not be assigned, and a right
of action for damage to property can be assigned. Benjamin-
Ozburn Co. v. Morrow Transfer, etc., Co., 13 Ga. App. 636,
637, 79 S. E. 753.
Action on Letter of Credit. — Right of action on a letter of
credit is assignable under this section and § 3655. Adams
v. Williams, 125 Ga. 430, 433, 54 S. E. 99.
Warehouse Receipts. — Under this section the assignee of
a warehouse receipt may sue the warehouseman for con-
version on his refusal to deliver the goods to him. Zellner
v. Mobley, 84 Ga. 746, 11 S. E. 402.
Bond for Title. — Although a bond for title obligated the
owners of certain land to make title thereto to the obligee,
"heirs, executors and administrators," without adding his
assigns, it was nevertheless assignable under this section
and § 4274 which provides that all bonds for the payment
of money or any article of property may be assigned in
writing and the assignee thereof was subrogated to all the
rights of the obligee. Fulcher & Co. v. Daniel & Son. 80
Ga. 74, 4 S. E- 259.
An architects' certificate is assignable under this section.
Timmons v. Citizens' Bank, 11 Ga. App. 69, 74 S. E- 798.
Bill of Lading. — The provisions of this section held not
applicable to a bill of lading. Postell v. Avery & Co., 12
Ga. App. 507, 77 S. E. 666.
Entry in Bank Book. — The entry in the bank book is
equivalent to a receipt for money and is, consequently, evi-
dence of a loan, and of a contract for repayment on demand.
It is sufficient to establish the relation of debtor and creditor
between the parties, and, under this section it would be as-
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§ 3653
PERSONALTY
§ 3653
signable so as to vest a right of action in the assignee in
his own name. Flanders v. Maynard, 58 Ga. 56, 62.
Insurance Policies.— A policy of insurance being a chose in
action, may be assigned so as to vest the title in the as-
signee, but the latter takes it subject to the equities exist-
ing between the assignor and debtor at the time of the as-
signment under this section. Morris v. Georgia Loan, etc.,
Co., 109 Ga. 12, 20, 34 S. E. 378; Sprouse v. Skinner, 15 Ga.
119, 122, 116 S. E. 606.
Covenants.— While at common law a covenant, after breach
in the hands of the covenantee, did not pass because it was
then a mere chose in action and therefore not assignable,
this rule is changed by this section. Tucker v. McArthur,
103 Ga. 409, 30 S. E. 283.
Wages.— As to assignment of wages, see § 3453. As to
validity of a contract for assignment of unearned wages, see
§ 3465.
A writing was properly construed as a written transfer
and assignment of the account claimed, in compliance with
the provisions of this section, in Southern R. Co. v. Pitner,
17 Ga. App. 451, 87 S. E. 754.
IV. REQUISITES AND VALIDITY.
A.' In General.
No Particular Form Required. — No special form of words
is necessary to make an assignment of a chose in action.
Any language, however informal, if it shows the intention of
the owner of the chose in action to at once transfer it, so
that it will be the property of the transferee, will be suffi-
cient to vest the title in the assignee under this section.
Southern Mutual Life Ins. Asso. v. Durdin, 132 Ga. 495, 418,
64 S. E. 264; Myers v. Adams, 14 Ga. App. 520, 81 S. E.
595.
By Separate Writing. — A draft may be assigned by a
separate writing so as to pass title to the assignee, without
an endorsement by the payee. Adams v. Robinson, 69 Ga.
627. But the decision in this case was declared to be un-
sound in Haug v. Riley, 101 Ga. 372, 29 S. E. 44.
B. Acceptance.
Previous Acceptance by Debtor. — While a chose in action
is under this section assignable so as to vest the title in the
assignee, a partial assignment of a debt due the assignor will
not vest in the assignee such a title to the part of the debt
assigned as can be enforced in a common-law action, with-
out a previous acceptance by the debtor. Ison Co. v. At-
lantic Coast Line R. Co., 17 Ga. App. 459, 87 S. E. 754;
Rivers v. Wright, 117 Ga. 81, 83, 45 S. E- 499; Central, etc.,
Ry. Co. v. Dover, 1 Ga. App. 240, 57 S. E. 1002.
C. Method or Manner of Transfer.
In General. — It is' to be observed that this section does
not undertake to prescribe the manner in which choses in
action "may be assigned so as to vest the title." Haug v.
Riley, 101 Ga. 372, 379, 29 S. E. 44. But as construed by the
decisions, the assignment must not rest in parol, but must
be in writing. Lamon v. Perry, 33 Ga. App. 248, 250, 125 S.
E. 907. See ante, this note, "Editor's Note," I.
Determined by Subject-Matter. — This section leaves the
method of transfer to be determined according to the law
governing this matter theretofore existing. Section 4273
(the provisions of which were incorporated into the first
code simultaneously with those of this section and are there-
fore to be read in pari materia with the latter section) pro-
vides that the manner of transferring the legal title to a
negotiable instrument not payable to bearer is by endorse-
ment. Haug v. Riley, 101 Ga. 372, 380, 29 S. E- 44.
V. RIGHTS AND LIABILITIES OF PARTIES.
Rule Stated. — The rule as to a chose in action not ne-
gotiable, under this section, is that the assignee "takes it
subject to all the equities which existed between the as-
signor and the maker thereof at the time of the assignment;
and all such equities as may attach in favor of the maker
before notice of such assignment by the assignee to the
maker." Georgia State Bank v. Harden, 32 Ga. App. 300,
306, 124 S. E. 68; Third Nat. Bank v. Western, etc., Co.,
114 Ga. 890, 892, 40 S. E. 1016; McCaw Mfg. Co. v. Feldtr,
115 Ga. 408, 411, 41 S. E. 664; Worrill v. Coker, 56 Ga. 666,
671.
An assignee of a negotiable security for value and before
due, takes it free from the equities between the original
parties, of which he had no notice, under this section. Adams
v. Robinson, 69 Ga. 627.
What Defenses Available. — Where one holds a non-ne-
gotiable note containing language which would place a
prudent man upon his guard, the maker of such note could,
as against the holder, make all the defenses which would
have been open to him against the payee, under this sec-
tion. Fourth Nat. Bank v. Odom, 147 Ga. 170, 93 S. E- 91.
A construction which would subject the transferee to the
secret equities of persons claiming an interest in the judg-
ment, would defeat the object of the law provided in this
section and § 4274. Western Nat. Hank v. Maverick Nat.
Hank, 90 Ga. 339, 345, 16 S. E. 942.
The assignee of a mortgage is net always open to the
equities between the parties. This is true of all choses in
action, except negotiable securities, under this section.
Murray & Co. v. Jones, 50 Ga. 110, 119.
It is the right of the bank, to treat a stockholder as the
true owner of a stock issued to him, and to deal with him
accordingly, until it receives notice that the stockholder has
assigned his stock to a third person under this section.
AJiter, after notice is brought home to the bank, even though
there has been no attempt on his part to secure a formal
transfer of the stock upon its books. Peoples Bank v. Ex-
change Bank, 116 Ga. 820, 43 S. E. 269.
Right to Set up Defense of Parol Agreement. — Where the
payee of a non -negotiable promissory note indorses the same
to a third person by name, without any words of limitation
or exception, it is a written assignment of the note to the
indorsee, and under this section he can maintain an action
upon it in his own name against the maker, and the latter
can not set up as a defense a parol agreement between the
assignor and the assignee to the effect that only a definite
sum should be collected by the latter on the note. Louder-
milk v. Loudermilk, 93 Ga. 443, 21 S. E. 77.
Priority. — Where a second assignment is of the entire
chose in action it vests in the assignee the legal title to the
whole chose in action, under this section, and it is entitled
to priority over the holder of a prior partial assignment oi
a chose in action to which the debtor of the assignor has
not assented. King Bros. & Co. v. Central Ry. Co., 135 Ga.
225, 69 S. E. 113.
Right to Set up Equities in Favor of Debtor against an
Intermediate Assignee. — The provision of this section that
non-negotiable choses in action are taken "subject to the
equities" permits the debtor to set up equities subsisting
between the original contracting parties, but has no applica-
tion to equities in favor of the debtor against an intermediate
assignee. Ellis v. Dudley, 19 Ga. App. 566, 91 S. E- 904.
Equities between the maker and the payee, originating
after a transfer to a third person, will not affect the rights
of the holder, though the transfer be made after the note
becomes due under this section. Central Trust Co. v. Far-
gason, 21 Ga. App. 696, 94 S. E. 902.
Notice. — The manifest intent of this section seems to be
that the notice prescribed is intended to fix the status of all
equities, and that, after such notice has been given, any
equities subsequently arising are barred. If, then, it be
taken as true that no counterclaim in favor of the debtor
can arise, after notice to him of the original assignment, the
language of the section, wherein it refers to equities exist-
ing between the assignor and the debtor "at the time of the
assignment and until notice of the assignment is given,"
would certainly seem to refer to the equities between the
original contracting parties. Ellis v. Dudley, 19 Ga. App.
566, 570, 91 S. E. 904.
VI. EQUITABLE ASSIGNMENT.
See ante, this note, "Editor's Note," I; post, "Pleading
and Practice," VI.
VII. PLEADING AND PRACTICE.
For full treatment, see 2 Cum. Dig. 178, 1 Enc. Dig. 603.
Present Rule. — Assignees can sue in their own names un-
der this section. Adams v. Robinson, 69 Ga. 627.
It was doubtless thought advisable not to disturb the
time-honored rule that none save the holder of the legal
title could prosecute his action; and to that end, it was in
effect provided by this section that a regular assignment,
in conformity to established custom, should operate to pass
the legal title, and thus enable the assignee to maintain a
suit in his own name. Haug v. Riley, 101 Ga. 372, 380, 29
S. E. 44.
Suit by Assignee for Wages Assigned — Assent of Company
to Assignment. — A suit at law by the assignee against the
railway company, for that part of the wages earned by the
assignor at the date of the assignment, can not be main-
tained, unless the railway company assented to the assign-
ment. Central Ry. Co. v. Dover, 1 Ga. App. 240, 57 S. E-
1002.
The written transfer of the account made him creditor, and
the bank his debtor, therefore he could at once have brought
suit thereon in his own name under this section. Nix v.
Ellis, 118 Ga. 345, 347, 45 S. E- 404.
Effect of Mere Equitable Assignment. — Under this section
the assignee may sue in his own name, but a mere equitable
assignment or interest arising from paying for a chose in ac-
tion, without written transfer gives no right to sue upon it
in the name of the equitable assignee. Florida Coco Cola
1 005 1
§ 3654
PERSONALTY
§ 3655
Bottling Co. v. Ricker; 136 Ga. 411, 417, 71 S. E. 734. See
also, Iyamon v. Perry, 33 Ga. App. 248, 250, 125 S. E- 907.
And see ante, this note, "Editor's Note," I.
Assignment of Bill of Lading — Right of Assignee. — Under
this section and § 3648, we think that upon the transfer to
the plaintiffs of the bill of lading calling for the full quan-
tity of corn, there was assigned to them the right of action
for the defendant's loss or conversion of a part of it. Askew
& Co. v. Southern Ry. Co., 1 Ga. App. 79, 80, 58 S. E- 242.
Assignable Property. — Where the subject-matter of sale,
purchase and assignment was not a mere naked right of
action, but assignable property, such as an execution, mort-
gage and note, the ownership carried with it a right to sue
as an incident of such ownership under this section. Where
there was no champerty in the contract of assignment,
champerty in a collateral contract between the beneficiaries
of the purchase, one of whom was husband of the assignee, it
is no defense to a suit brought and prosecuted by her at the
expense of her husband, but for the joint interest of him
and his co-beneficiary. Reed v. Janes, 84 Ga. 380, 11 S. E.
401.
Purchase of Choses in Action for Purpose of Realizing
Fruits of the Purchase. — The open account for the purchase
price was never transferred by the vendor to his wife,
therefore she could not, under this section, maintain an at-
tachment for the purchase money, where the vendee had
agreed with the vendor to pay the purchase price to the
vendor's wife. Dean v. Bateman, 12 Ga. App. 253, 77 S. E-
102.
§ 3654. (§ 3078.) Assignment of fund.— A fund
may be assigned in writing; the written acceptance
of a draft will be treated as an assignment pro
tanto of funds of the drawer in the hands of the ac-
ceptor.
See notes to § 3653. As to obligations which must be in
writing, see § 3222.
Editor's Note. — The doctrine laid down in this section
(which first appeared in the code of 1895) is based upon the
decision of Baer v. English & Co., 84 Ga. 403, 11 S. E. 453,
(decided in 1890) which held that failure to accept the bill
of exchange in writing coupled with a parol promise to do
so had no legal efficacy whatever; and Jones v. Glover, 93
Ga. 484, 21 S. E. 50, (decided in 1893) which held that facts
or circumstances must appear from which it could rightly
be inferred by a jury, both that a complete equity had
arisen between the assignor and the assignee which would
support an assignment, and that these two parties contem-
plated on immediate change of ownership with respect to
the particular fund in question.
The latter part of this section is materially modified by the
N. I. E., § 4294 (126) of this code.
An instrument, other than a draft, purporting to assign a
sum of money under this section to be paid out of a fund
claimed to be in the hands of another, without describing
the identical money intended to be conveyed will not of itself
convey legal title to any part of the fund which in fact may
be in the hands of such other person. If anything is con-
veyed it is an equitable interest in the entire fund. West-
ern, etc., R. Co. v. Union Inv. Co., 128 Ga. 74, 57 S. E- 100.
§ 3655. (§ 3079.) What not assignable. — A
right of action is not assignable if it does not in-
volve, directly or indirectly, a right of property;
hence a right of action for personal torts or for in-
juries arising from fraud to the assignor can not be
assigned.
Cross References. — See 2 Cum. Dig. 165, 166; 1 Enc. Dig.
597. As to obligations which must be in writing, see §
3222.
Editor's Note. — The principle laid down in this section
(which first appeared in the Code of 1895) was derived from
the decision in the case of Central R., etc., Co. v. Bruns-
wick, etc., R. Co., 87 Ga. 386, 389, 13 S. E- 520, (decided in
1891) and effects a modification of the common law as it
stood in this state previously to that time. The court stated:
"Our code, at least by implication, seems to settle the
question that causes of action arising from torts are not
assignable. Section 3652 classes such rights as choses in
action, but § 3653 provides expressly that choses in action
arising upon contract may be assigned, and is silent as to
the assignment of choses in action arising upon tort. It
would seem, therefore, under the rule expressio unius ex-
clusio alterius, that the latter are not assignable in this
State."
Law until 1895. — "Until 1895 no choses in action arising ex
delicto were assignable, and by virtue of the principles
[ 1006 ]
involve directly or
Curling, 149 Ga.
which had always obtained such a suit could not be main-
tained by a usee or by a nominal plaintiff for the benefit of
a named usee." Sullivan v. Curling, 149 Ga. 96, 101, 99 S.
E. 533.
Law after 1895. — -After this section became law, however,
there were still some actions arising ex delicto which were
not assignable, to wit, all such as did not involve directly or
indirectly a right of property. Sullivan v. Curling, 149 Ga.
96, 101, 99 S. E. 533.
Intent of Legislature. — It is to be assumed that none of
the words in this section were employed without a mean-
ing. It had been the law from the earliest times that a
chose in action arising out of tort was not assignable, and
it was not necessary to enact this section of the code in
order to establish that principle. We think, therefore, that
when the legislature said that "a right of action is not as-
signable if it does not involve directly or indirectly a right
of property," the converse necessarily follows, that is, a
right of action is assignable if it does
indirectly a right of property." Sullivan
96, 98, 99 S. E. 533.
Section 5517 Modified. — When the provisions of this section
were introduced into the code, § 5517 necessarily became
modified; otherwise the enactment- would be inoperative for
lack of remedy. Sullivan v. Curling, 149 Ga. 96, 101, 99 S.
E. 533.
Breach of Contract. — As to assignability of right of action
arising from the breach of contract to become surety on
guano note, see § 3653, III, B, 2.
Letter of Credit. — As to assignability of right of action on
a letter of credit, see § 3653, III, B, 2.
Action Involving Directly or Indirectly a Right of Prop-
erty.— Right of action arising from contract or involving di-
rectly or indirectly a right of property. See note to § 3653.
A chose in action arising from a tort is assignable under
this section where it involves, directly or indirectly, a right
of property. Sullivan v. Curling, 149 Ga. 96, 99 S. E. 533.
Damages to Person or Property. — Assignability of right
of action for damage to person or pVoperty. See note to §
3653.
Under the facts and circumstances in this case where each
insurance policy contained a provision that in case the
property should be destroyed by fire occasioned by the neg-
ligence of the other, upon payment of loss the insurance
company should be subrogated, to the extent of such pay-
ment and such right should be assigned to the company
upon making payment of the loss it was held that it may
well be doubted whether such a cause of action is assignable
under this section and § 5517, at all, so as to authorize the
assignee to bring suit in his own name. Southern Ry. Co.
v. Barrett, 141 Ga. 584, 588, 81 S. E. 863.
A right of action for injuries arising from fraud is not as-
signable under this section. Couch v. Crane, 142 Ga. 22, 82
S. E. 459; Morehead v. Ayers, 136 Ga. 488, 71 S. E. 798.
A right of action for a tort is not extinguished (and hence
not assignable under this section) by a "compromise settle-
ment" in which a given sum is to be paid to the injured
party, unless it be expressly agreed between the parties
that the promise to pay the amount fixed by the settlement
shall be accepted as a satisfaction within terms of § 4346
of the original claim. Fouche v. Morris, 112 Ga. 143, 37 S.
E. 182.
Right of Vendee under § 4122 Not Assignable. — The right
given by § 4122, to a vendee of land sold by the tract or en-
tire body, where the quantity is specified by "more or less,"
to have an apportionment of the price for a deficiency in
the quantity specified so gross as to justify the suspicion of
willful deception, or mistake amounting to fraud, arises only
by reason of actual fraud and deception on the part of the
vendor, which tends to injure or damage the vendee, and
therefore, under this section is not assignable. Morehead
v. Ayers, 136 Ga. 488, 71 S. E- 798.
Right to bring an action of trespass for damage to realty
is not assignable under this section by a landowner to his
successor in title. Allen v. Macon, etc., R. R. Co., 107 Ga.
838, 846, 33 S. E. 696.
No Assignment — Mere Contract. — Where a widowed mother
had a cause of action against a railway company to recover
damages for the homicide of her son, and she entered into
a contract with her children, by the terms of which she
agreed, in consideration of advances, made by them to her
for the purpose of defraying the expenses of prosecuting her
cause of action to share equally with them in any recovery
she might obtain in her suit, this was not an assignment of
the right of action for the personal tort. Anderson v. An-
derson, 12 Ga. App. 706, 78 S. E. 271.
Rights of Consignee. — After the loss or destruction of the
property, and therefore after the accrual of the right of
action in the person in whom the title to the property was
then vested, an assignment or transfer of all of his rights
§ 3656
ESTATES AND RIGHTS ATTACHED THERETO
§ 3657
on account of the tort by the consignee to the consignor
will not serve to vest the latter with such title to the goods
destroyed as would authorize the consignor to maintain an
action in tort therefor. Lowden v. Merchants, etc., Co., 20
Ga. App. 283, 93 S. E. 45.
Agreement to Pay Contingent Fee. — This section declares
that the right of action for personal torts or for injuries
arising from fraud to the assignor can not be assigned. If
an agreement to pay a contingent fee in such case were held
to amount to an attempted assignment (which is not de-
cided), it would not confer on the attorney the right of an
assignee as distinguished from his right to a lien under §
3364. Winslow Bros. Co. v. Murphy, 139 Ga. 231, 236, 77 S.
E. 25.
SIXTH TITLE.
Estates and Rights Attached Thereto.
CHAPTER 1.
Of Absolute Estates or in Fee Simple.
§ 3656. (§ 3080.) What is. — Estate is the
quantity of interest which an owner has in prop-
erty. In this State it is applicable equally to realty
and personalty. Any estate may be created in the
latter that can be created in the former, and the
rules of construction as to both shall be the same.
The provisions of this Code, under this title, when
not restricted to one, apply to both.
Cross References., — For a general treatment, see 5 Cum.
Dig. 436, et seq.; 5 Enc. Dig. 201, et seq. As to descent of
realty, see § 3929. As to rights of administrator, see §§
3933, 3934. As to maintenance of action on bare title, see §
4473.
Common Law Rule. — This section and § 3677 are a. codifica-
tion of the old law. Collins v. Smith, 105 Ga. 525, 532, 31
S. E. 449.
"Estates" Defined — Enumerated. — "Estate" and the
"character of the estate," according to our laws and com-
mon understanding, have reference to the interest in the
property, to wit: an estate for years, an estate for life, an
estate in remainder vested or contingent, and an estate in
fee -simple; which shows that while realty and personalty are
different kinds of property, they are not different kinds of
estates. DeVaughn v. McLeroy, 82 Ga. 687, 694, 10 S. E. 211.
There is no distinction as to a bequest of personalty and
a devise of realty. Winn v. Tabernacle Infirmary, 135 Ga.
380, 382, 69 S. E- 557. And there is no distinction between
conditions as to personalty and realty. S. C.
A power of appointment not being an estate, has none of
the elements of an estate. Patterson & Co. v. Lawrence,
83 Ga. 703, 707, 10 S. E. 355.
Effect of Converting Realty to Personalty. — The conversion
of land into personalty does not change the character of
the estate from vested to a contingent remainder, because
estate or character of estate means quantity of interest and
not character of property. DeVaugh v. McLeroy, 82 Ga.
687, 694, 10 S. F. 211.
Money as an Estate. — The gift of the whole estate would
include the money of the estate. Thornton v. Burch, 20
Ga. 791.
A remainder may be created in money, since money is an
estate or the part of an estate. Crawford v. Clark, 110 Ga.
729, 36 S. F. 404.
§ 3657. (§ 3081.) Fee simple. — An absolute or
fee-simple estate is one in which the owner is en-
titled to the entire property, with unconditional
power of disposition during his life, and descending
to his heirs and legal representatives upon his
death intestate. Realty descends directly to the
heirs, subject to be administered by the legal
representative, if there be one, for the payment of
debts and the purposes of distribution. If there be
a legal representative, the right to recover it is in
him; if there be none, the heirs may sue in their
own name.
Cross References. — For a full treatment of the subject, see
5 Fnc. Dig. 203, et seq.; 4 Cum. Dig. 857; 4 Enc. Dig. 470.
[ 1007 ]
As to the powers, duties, and liabilities of executors or ad-
ministrators regarding realty, see 5 Fnc. Dig. 716, et seq.;
5 Cum. Dig. 819. As to liability of estates for debts, see
§ 4001. As to descent of realty to heirs, see § 3929. As to re-
covery of possession of realty from heirs by administrator,
see § 3934. As to maintaining action for trespass on bare
title, see § 4473.
In General. — This section makes no changes in the defini-
tion or the incidents of an absolute or fee-simple estate.
Ewing v. Shropshire, 80 Ga. 374, 377, 7 S. E- 554.
At common law, real estate became vested, on the death
of the owner, in his heirs or devisees, and the executor or
administrator as such had no inherent power over it.
Schouler on Wills and Administration, § 212. By statute
of this state realty descends directly to the heirs, subject to
be administered by the legal representative, if there be one.
for the payment of debts and the purposes of distribution.
If the owner dies testate, the title passes by will to the
devisees, subject to be administered by the executor for the
payment of debts and distribution under the will. In cases
of intestacy, it is his duty to distribute the estate among
the heirs and this implies that each heir is to be assigned
his aliquot part in severalty. Crumley v. Laurens Banking
Co., 141 Ga.603, 605, 81 S. F. 871.
Extent of Fee — Rights of Owner. — A conveyance of the ab-
solute or fee-simple estate in a tract of land would of course
carry with it all minerals, and clays in and under the same.
An absolute estate in land carries with it the exclusive and
unrestricted right to occupy, use, and dispose of the same.
The right to possess, use, and to exclude every one else
from interfering with a tract of land is not only a right,
in all circumstances affecting the value of the land, but it
is of the essence of ownership itself. Wright v. Martin, 149
Ga. 777, 782,. 102 S. E. 156.
The grant of a permanent easement to a telephone com-
pany, and a prior conveyance of the mineral interests would
defeat a fee-simple interest in land. Wright v. Martin, 149
Ga. 777, 782, 102 S. E. 156.
Limiting Power of Disposition. — This definition excludes
the right to limit the power of disposition during the life of
the grantee, if the estate is one in fee- simple. Cowart v.
Singletary, 140 Ga. 435, 442, 79 S. E- 196.
Whenever an estate is given, either by deed or will, to a
person, generally or indefinitely, with the unlimited power
of disposition annexed, it invariably vests the absolute fee
in the first taker; and neither a remainder, nor an executory
devise, can be limited over, upon such an estate. Cook v.
Walker, 15 Ga. 457; Greer v. Pate, 85 Ga. 552, 554, 11 S. E.
869.
Same — Facts Creating Life Estate. — Where a daughter is
given an estate but with remainder upon her death without
issue to a charity, she is deprived of a fee because she is
deprived of power of disposition and only given a life estate.
Kine v. Becker, 82 Ga. 563, 565, 9 S. E. 828. See Trustees
v. Denmark, 141 Ga. 390, 81 S. E. 238.
Courts Favor Disposition in Kind. — As real estate descends
to the heirs in this state, it would seem to be the policy of
the courts to favor the heirs by a division of the lands in
kind, and they will not be sold, unless it be necessary to
pay debts or to have a distribution. McCook v. Pond, 72
Ga. 150.
Facts Creating Fee. — Where land was willed to daughter
and her children, the daughter took a fee estate. Palmer
v. Mathews, 33 Ga. Sup. 72.
And in Harris v. Smith, 16 Ga. 545, it was held that cer-
tain words in a will vested fee simple, subject to an execu-
tory devise and bequest.
Also, under the facts in Smith v. Dunwoody, 19 Ga. 237,
devisees and legatees took an absolute estate in the capital
of the estate.
Same — Conveyance to Mother and Children. — An absolute
estate passed to C, no part of which was divested where it
was given to her and her children for, and during her
natural life, and at her death to be equally divided between
her children, share and share alike; not to be subject to the
payment of any debt of the husband she may intermarry.
C. married and died without a child. Smith v. Johnson, 21
Ga. 386.
Same — Power of Disposal. — Where the donor or testator,
gives to the first taker an estate for life only, by certain
and express words, and annexes to it a power of disposal, in
that particular and special case, it has been held, that the
donee or devisee for life, will not take the fee, notwith-
standing the distinct gift of the power of disposition.
Wherever a fee-simple is given, by apt and appropriate
words, to the first taker, with the addition of the absolute
power of disposal, in such case, the fee will never be cut
down or restricted to a life-estate, by implication. Cook v.
Walker, 15 Ga. 457. See § 3922.
Title Does Not Pass under Section Where Willed.— The
§ 3657
ESTATES AND RIGHTS ATTACHED THERETO
§ 3658
title to the land willed vested in the legal representative of
the testator, to be disposed of in conformity with the will,
and not in the heirs at law of the decedent under the stat-
ute of distributions. Avery v. Sims, 69 Ga. 314.
Rights of Administrator "Cum Testamento Annexo." — Iii
the case of Beaty v. Stapleton, 110 Ga. 580, 35 S. E- 770, it
was. held that "an administrator cum testamento annexo
can not lawfully sell lands for the purpose of paying debts
or for distribution, when there are no debts, and such ad-
ministrator has no authority to make and is under no duty
of making a distribution of the estate among legatees or
devisees." But this was a case where the heirs filed an
equitable petition before the sale, seeking to enjoin the
same, alleging that there were not debts; that it was un-
necessary to sell the land for the purpose of paying debts
or for distribution. Copelan v. Kimbrough, 149 Ga. 683,
690, 102 S. E. 162.
Powers of Administrator Over Land — To Maintain Eject-
ment.— The administrator in a sale for the purpose of dis-
tribution is vendor and before sale has such title that he
could maintain ejectment. White v. Reviere, 57 Ga. 386,
390.
Same — Same — After Partition Had. — An administrator being
in possession of land could maintain action to eject intruder
although he had had land partitioned among heirs. Carter
v. Darnell, 94 Ga. 656, 21 S. E- 849.
Same — Divest Heirs. — Construing this and §§ 3929, 3933
together, they give the administrator primary right to sue
and recover the estate, the heir having such right only in
case of his consent or where there is none, therefore, since
the plaintiff in ejectment must show right to recover, plain-
tiffs in this case must show either lack of administrator or
his consent for them to sue. Greenfield v. Mclntyre, 112
Ga. 691, 694, 38 S. E. 44. See Hall v. Ewing, 149 Ga. 693,
696, 101 S. E- 807; Collins v. Henry, 155 Ga. 886, 889, 118 S.
E- 729.
Same — When Rights Exist. — The administrator can not
recover land from widow by merely proving title in hus-
band at his death. Green v. Underwood, 108 Ga. 354, 355,
33 S. E. 1009.
Realty descends directly to the heirs, subject to be ad-
ministered by the legal representative for the payment of
debts of the estate, and the purpose of distribution only.
Jones v. Lamar, 34 Fed. 454; Davie v. McDaniel, 47 Ga.
195, 209.
Same — Assumption of Contract Made by Heirs. — The ad-
ministrator assumes possession of realty only for the pur-
pose of paying debts of distribution; thus, where the heirs
contract for materials and repair the realty prior to his
appointment, his taking possession does not make him liable
for such materials upon theory of ratification. Burke v.
Huff, 103 Ga. 598, 602, 30 S. E. 546.
Right of Heirs to Sue or Be Sued. — An heir at law of the
grantee in an unrecorded deed conveying land has such an
interest in the land as will authorize him to maintain an
action to establish a copy of the deed after it has been
lest. Orr v. Dunn, 145 Ga. 137, 88 S. E- 669.
Granting that the petition shows an indebtedness by Mrs.
C. to E- for her board and maintenance during the time
that she lived with E-, the heirs at law could still bring
suit in their own name against E, under this and § 3929
to recover the land in controversy. Eagan v. Conway,
115 Ga. 130, 134, 41 S. E. 493.
Same — To Recover Usury. — Where sole heir of deceased
borrower pays debt with usury to free estate from incum-
brance, the right of action to recover the usury is in the
heir and not the administrator. Pope v. Marshall, 78 Ga.
635, 4 S. E. 116.
Same — Where Administrator Refuses. — In cases of col-
lusion between one holding land and the administrator, on
account of which the latter refuses to sue, heirs and
creditors may sue in their own names; but this right of
action exists in the same manner and to the same extent
only as it does in the administrator. Edwards v. Kil-
patrick, 70 Ga. 328.
Same — Same — Or Where He Consents. — If there is no ad-
ministrator the heirs may sue for realty; or the adminis-
trator may consent to a suit for realty by the heirs, or
may assign a claim to a creditor or distributee, if he be
unwilling to sue; but without some special reason,- a suit
in equity cannot be maintained by creditors, distributees
or legatees for the recovery of property of the decedent
from a third person. Mason v. Atlanta Fire Co., 70 Ga.
604.
Same — Where Appointed by Court. — While the personal
representatives of a plaintiff in ejectment who dies pend-
ing a suit, and not his heirs, are the proper persons to
succeed him in that suit, yet after the heirs have been
made parties by order of the court, so long as this order
is not reversed or vacated the heirs may recover if the
personal representatives could, had they been made par-
ties. Williams v. Savannah, etc., R. Co., 94 Ga. 540, 20
S. E. 487.
Same — Hold Subject to Administration. — If the heirs re-
cover lands of their deceased intestate, they hold them
subject to be administered by the legal representative for
the payment of debts. Reed v. Norman, 157 Ga. 183, 185,
121 S. E. 310.
Same — On Insurance Policy. — Under this and §§ 3929,
3933, and the decision in Greenfield v. Mclntyre, 112 Ga.
691, the heirs of the intestate insured could not bring suit
on the policy without alleging and proving that there was
no administration. Queen Ins. Co. v. Peters, 10 Ga. App.
289, 293, 73 S. E- 536.
Same — To Sue Each Other for Partition. — The language
of this section "If there be a legal representative, the right
to recover it (the land) is in him; if there be none, the
heirs may sue in their own name," contemplates a suit
against a stranger to the estate. Whether there be ad-
ministration or not, one heir has no superior right to pos-
session over another and may maintain suit without show-
ing the lack of administrator. Hunnicutt v. Rogers, 135
Ga. 595, 596, 69 S. E. 913.
Same — To Set Aside Fraudulent Deed. — Action to set
aside deed alleged to have been procured fraudulently by
the intestate may be brought against the heirs without
joining the administrator or showing no debts or lack of
administrator. EHesworth v. McCoy, 95 Ga. 44, 22 S. E-
39.
Title Given by Administrator — Priority over Legatee's
Creditor's Judgment. — Where the administrator sells the
land under this section for the purpose of distribution, the
holder of the judgment against one of the legatees can not
levy upon the legatee's undivided interest after the sale
for the purchaser's title goes back behind the judgment
and cuts it off since he buys the land as that of the tes-
tator's. Keaton v. Tift, 56 Ga. 447.
Same — Divests Heirs of Title. — Where the title became
divested by the administrator's sale; it appearing that the
sale was had in the regular course of administration, (Cook
v. Cook, 67 Ga. 381) the plaintiffs can not recover on the
theory that the legal title to the land in controversy is in
them as heirs at law of their deceased grandfather. Weldon
v. Weldon, 152 Ga. 550, 552, 110 S. E. 273.
The Right to Administration Exists in Creditors. — They
can apply for administration, and then there will be a
legal representative for the payment of debts and the pur-
poses of distribution, but there is no hint in the petition that
there are any debts or that a sale of the property in ques-
tion for purposes of distribution is necessary. Warren
v. Federal Land Bank, 157 Ga. 464, 467, 122 S. E- 40.
Cultivating Land — Rents. — After the intestate's death,
her husband and children were her heirs at law, and there
being no administrator at that time, had a right to take
possession of and work the land; and the children being
minors, whatever was made by them and the father be-
longed to him, subject to the charge for rent. Gibson v.
Carreker, 82 Ga. 46, 9 S. E. 124.
When Rents Part of Realty. — If no debts, and the ad-
ministrator rents the land, the rents over the payment of
administration expenses go to the heir, though the legal
right to collect is in administrator. Autrey v. Autrey, 94
Ga. 579, 20 S. E. 431.
Same — Where Estate Indebted. — Where intestate dies
the rent for that year goes to the administrator as per-
sonalty to be collected, and not to the heirs. Autrey v.
Autrey, 94 Ga. 579, 20 S. E- 431.
Effect of Sale by Heirs. — Any sale made by the heirs
would leave the lands subject to administration for the
payment of debts. East Rome Town Co. v. Drower, 80
Ga. 258, 7 S. E. 273.
§ 3658. (§ 3082.) May be in abeyance. — An
absolute estate may be created to commence in
future, and the fee may be in abeyance without
detriment to the rights of subsequent remainders.
A fee may be limited upon a fee, either by deed or
will, where the plain intention of the grantor or
testator requires it, and no other rule of law is
violated thereby.
Editor's Note. — It was a maxim of the common law that
a fee could not be in abeyance. (Wallach v. Van Riswick,
92 U. S. 202, 212, 23 L. Ed. 473) and this was the law in
Georgia prior to the code.
Nor could a remainder or executory devise (fee) be lim-
ited upon a fee, (11 Enc. Dig. 212) but since the code of
1863 this section has been the law. (See Greer v. Pate,
85 Ga. 552, 11 S. E. 869.)
[ 1008
§ 3659
ESTATES AND RIGHTS ATTACHED THERETO
§ 3659
Tt is the application of this section in conjunction with
part of § 3662 that preserves the intention of the grantor
or devisor from the operation of the Act of 1821, which is
the first three sentences of § 3661, in cases where he pro-
vides that the devisee shall take to himself and the heirs
of his body — or any of the other similiar limitations
enumerated in § 3662 — and if the condition fail, then the
limitation over to some other person. Section 3662 makes all
such words of limitation apply to a definite failure of is-
sue and thus creates a qualified or base fee in such cases.
(See Editor's note to § 3662). Now where there is such
base fee, and it divests by the terms of the conveyance,
the estate reverts or goes to a third person. The re-
versioner's or third person's estate (i. e., the fee limited),
therefore, depends upon the failure of the first estate, and
thus is a fee limited upon a fee.
Creation of Future Estate — Indefinite Devisees — Executor
Quasi Trustee. — A devise to the wife and children of an
unmarried son is valid under this section and the executor
holds the property in abeyance as qua«si trustee until the
marriage of the son, when it vests in the wife, subject to
be shared by future born children of the husband. .Knowles
v. Knowles, 132 Ga. 806, 810, 65 S. E. 128.
Same — Fee Need Not Pass Out of Grantor. — It follows
from the first sentence of this section that it is not neces-
sary, whether a trust for the life-tenant is created or not,
for the fee to pass out of the grantor or devisor with the
particular estate. Fleming v. Hughes, 99 Ga. 444, 449, 27
S. E- 791.
Determinable Fee Legal. — The grant of a qualified or de-
terminable fee subject to be divested upon the sufficiency
of certain conditions, is legal under this section, because
a fee may be limited upon a fee. Shealy v. Wammock, 115
Ga. 913, 914, 42 S. E. 239. For a further treatment of this
case, construing §§ 3661, 3662, with this section and show-
ing effect, see note to § 3662. See also, Davis v. Hollings-
worth, 113 Ga. 210, 38 S. E. 827; and Dean v. Wall, 154
Ga. 637, 638, 115 S. E. 78.
Presumption in Favor of "Fee upon Fee." — Since an es-
tate tail is void but a fee may be limited upon a fee under
this section, the court held that the probable intent of the
testator was to give a fee, subject to be reduced or di-
vested upon certain contingencies, such interpretation be-
ing possible, rather than an estate tail. Phinizy v. Wal-
lace, 136 Ga. 520, 526, 71 S. E- 896.
§ 3659. (§ 3083.) What words create. — The
word "heirs," or its equivalent, is not necessary to
create an absolute estate; but every conveyance,
properly executed, shall be construed to convey the
fee, unless a less estate is mentioned and limited in
such conveyance. If a less estate is expressly
limited, the courts shall not, by construction, in-
crease such estate into a fee, but, disregarding- all
technical rules, shall give effect to the intention of
the maker of the instrument, as far as the same is
lawful, if the same can be gathered from its con-
tents; and if not, in such case the court may hear
parol evidence to prove the intention. Acts 1821,
Cobb, 169.
Cross References. — For a full treatment of the subject,
see 5 Cum. Dig. 437; 4 Cum. Dig. 710; 4 Enc. Dig.
308. As to the meaning of the words in wills, see §
389S. As to a gift of income in a will as creating an es-
tate, see § 3899. As to the intention of the testator in
construing wills, see § 3900.
History of Section. — This section is a reproduction of the
act of 1821 (Cobb's Dig. 169,) in so far as it declares
words of inheritance, such as "heirs," etc., needless to
create an absolute estate, and makes every conveyance,
properly executed, have that effect, unless a less estate is
therein mentioned and limited. The rest of the section is
new as statute law, and as a universal rule, new in the
law generally; for, prior to the code, there was no inhibi-
tion, in all cases, against enlarging a less estate expressly
limited, into a fee by construction; nor any absolute re-
quirement to disregard technical rules in order to arrive
at intention; nor was the door so wide open to the admis-
sion of parol evidence to clear obscurities and explain patent
ambiguities. Ewing v. Shropshire, 80 Ga. 374, 377, 7 S. E.
554.
The codifiers, combining the two acts, acts 1854 and
1821, made of them this section, requiring the courts to
give effect to the intention of the maker of the instrument
as far as the same is lawful, notwithstanding any technical
rules, whenever that intention can be gathered from the
instrument itself; and it is added to these provisions, if
this can not be done, then the court may hear parol evi-
dence to ascertain the intention. Nussbaun v. Evans, 71
Ga. 753, 757.
Purpose. — In England, to create a fee, it was necessary
that some word of inheritance should be contained in the
conveyance. A deed of land to A. vested a life estate
only. In this state every man is his own scrivener. It
was found that in many, if not in most deeds, words of
inheritance were omitted, notwithstanding it was the in-
tention of the parties to pass the fee. Clements v. Glass,
23 Ga. 395, 397.
Changes Made by Codification. — By the act of 1821 (Acts
1821, p. 92) fee tails, whether express or implied, were con-
verted into an absolute estate in the first taker. Craig v.
Ambrose, 80 Ga. 134, 4 S. E. h The code of 1863, § 3230
(§ 3661), left express estates tail just as under the act of
1821, but changed an estate tail by implication into a life-
estate with remainder over. Megahee v. Hatcher, 146 Ga.
498, 500, 91 S. E. 677.
Scope of Section with Reference to Estates. — Although
the act of 1821 (see § 2661) converted only estate tails in-
to fee simples, the part enacting that an estate to one gen-
erally shall be held a fee -simple (this section) was not re-
stricted to estate tails in its operation but extended to
all estates. Burton v. Black, 30 Ga. 638, 644.
Effect upon Rule in Shelly's Case. — To any possible ap-
plication of the rule in Shelly's case to a conveyance with
the remainder limited to heirs, lineal heirs, lawful heirs,
issue, or the like, this section which enjoins that technical
rules be disregarded, and inhibits the enlargement of the
estate granted to A. into a fee by construction, a less es-
tate, to- wit, one for life, being mentioned and limited, is
an obstacle. (See note to § 3660). Ewing v. Shropshire,
80 Ga. 374, 378, 7 S. E. 554.
Words Importing Fee Unnecessary. — Any word or words
which import a fee -simple can have no effect upon the con-
veyance as to the quantity of the estate, but the convey-
ance will pass the fee without, as effectually as with them;
for save when a less estate is expressed, the fee always
passes, and if a less is expressed, it can not be enlarged
by construction. Wilkerson v. Clark, 80 Ga. 367, 373, 7
S. E- 319; Featherston Min. Co. v. Young, 118 Ga. 564,
565, 45 S. E- 414.
That a life estate was conveyed to S. and her children
is negatived by this section unless the deed expressly
limits the estate to a life estate. Stamey v. McGinnis,
145 Ga. 226, 228, 88 S. E. 935.
The words "successor" in a conveyance to "their suc-
cessors and assigns" could be interpreted heirs, but it is
not necessary inasmuch as the use of the word "heirs" is
wholly unnecessary under this section. Andrews v. At-
lanta, etc., Co., 92 Ga. 260, 262,_18 S. E. 548.
Same — Common Law Changed. — By the Common Law,
the word "heirs" is necessary to be employed in a grant,
in order to pass an inheritable fee; but, under the Act of
1821, words of restraint must be added, in order to carry
a less estate. Cook v. Walker, 15 Ga. 457.
Same — Person Presumed to Intend Conveyance of Fee. —
"Whenever one seeks to sell property or negotiates for its
sale, the presumption is that his purpose is to convey an
absolute estate, unless a less estate is expressly mentioned
and limited." Richards v. East Tenn. R. Co., 106 Ga.
614, 628, 33 S. E. 193.
Construction Where Less Estate Expressly Limited. — A
less estate than a fee being expressly limited, the court
was bound to give effect to the 'manifest intention of the
testator, which seems to have been lawful, inasmuch as
there was no attempt to create an estate tail, the gift in
remainder being limited to the immediate descendants of
the devisee in being at the time of his death, or in case of
the death of a child of the devisee in his lifetime leaving
children, then to such children, who stood in loco parentis
at the death of devisee. Nussbaun v. Evans, 71 Ga. 753,
756.
Same — With Added Power of Disposition. — Where A was
given a life estate with absolute right of disposition, and
she exercises the right by executing a quitclaim, the es-
tate she conveyed will be presumed a fee -simple under
this section in the absence of a less estate being limited.
Prudential Inv. etc. Co. v. Hilton, 153 Ga. 415. 419. 112
S. E. 464.
Words Failing to Limit Fee. — A deed providing "and sold
to said D, for the support of herself, her present and future
children, ... to have and to hold the same in fee-
simple for the purpose aforesaid" does not mention an es-
tate less than a fee and thus conveys fee under this sec-
tion. Morris v. Davis, 75 Ga. 169, 175.
A devise or a grant to A. and his heirs conveys a fee to
A. Craig v. Ambrose, 80 Ga. 134, 4 S. E. 1 ; Ewing v.
1009
3659
ESTATES AND RIGHTS ATTACHED THERETO
§ 3660
Shropshire, 80 Ga. 374, 7 S. E. 554; Douglas v. Johnson,
130 Ga. 472, 60 S. E. 104; Ragan v. Rogers, 146 Ga. 818, 92
S. E. 647; Thomas v. Owens, 131 Ga. 248, 254, 62 S. E. 218.
Same — Codicil to Will.— Where by the codicil an absolute
estate is given, without any referential words carrying
back the bequest, under limitations in previous provisions,
courts can not supply such intent by construction. Where
the devise is complete, separate and unequivocal, the law
inhibits the construction of lesser estates, where no words
of limitation are employed by the testator. Felton v. Hill,
41 Ga. 554, 569.
Same — In an Easement. — No less estate in an easement
being expressed, an estate in fee "herein should be under-
stood, in harmony with this section. Trustees Atlantic
Univ. v. Atlanta, 93 Ga. 468, 479, 21 S. E. 74.
Effect of Subsequent Words — Limitation Over. — The pur-
pose of this section being to enlarge estates and ma*ke a
fee more easily created than at common law, the annex-
ing of a limitation over to an estate otherwise made a fee
by this section, would not reduce such estate to an estate
tail, inasmuch as such condition would not have reduced
it to an estate tail at common law. The estate is a fee
determinable upon condition. Burton v. Black, 30 Ga. 638,
644.
An estate in remainder "to H after death or marriage of
my wife" conveys a fee to H under this section which is
made subject* to an executory devise in case H die with-
out issue by the words "die leaving no lawful heir to go
to the children of F." Harris v. Smith, 16 Ga. 545, 558.
A devise to the children of X and should any die after
marriage without issue then its part to revert and be di-
vided among the survivors created in each a determinable
fee; for every conveyance properly executed shall be a
fee unless expressly limited. Hill v. Terrell, 123 Ga. 49,
56, 51 S. E. 81.
The only effect of providing that the estate shall go to
some other person if the first taker should die without
children is to attach a condition to the fee in him which
would terminate it if he should die without children. A
like construction has been placed upon similar bequests, in
Hill v. Alford, 46 Ga. 247; Gibson v. Hardaway, 68 Ga.
370; Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286; Chewn-
ing v. Shumate, 106 Ga. 751, 32 S. E. 544; Davis v. Hol-
lingsworth, 113 Ga. 210, 38 S. E- 827; Sumpter v. Carter,
115 Ga. 893, 42 S. E. 324. Thus the supreme court has held,
with great uniformity, that unless there be something to
indicate a contrary intent on the part of the testator, a
devise or bequest to a named person, followed by a provi-
sion that if he shall die childless the property shall pass
to some other person, conveys to him a fee under this sec-
tion, subject to be divested upon his dying childless; or,
as it is sometimes called, a base or qualified fee, and does
not confer upon any child which he may have any interest
or estate in remainder in the property. Estates by impli-
cation are not favored. McCord v. Whitehead, 98 Ga.
381, 385, 25 S. E- 767. In the harmony of these decisions
there is but a single note of discord. In Wetter v. United
Hydraulic Cotton Press Co., 75 Ga. 540, the words, and
should they be survived by my said daughter, and she
subsequently die without issue then living, the whole of
my estate to vest in and belong to their heirs forever,
when construed in connection with the entire will and the
circumstances surrounding the testatrix, created a re-
mainder in favor of the children of her daughter, and did
not invest her with a fee determinable upon dying with-
out issue. The will which was under consideration in that
case was probated in 1839, when the old law in regard to
marital rights prevailed. That decision has been discussed
and criticised in Matthews v. Hudson, 81 Ga. 120, 126, 7
S. E- 286, supra ; and if it can stand at all, it must be on
its own peculiar facts. Hill v. Terrell, 123 Ga. 49, 57, 51
S. E. 81.
In the case of Morris v. Davis, 75 Ga. 169, where a deed
of gift recited that the grantor had given and sold to the
grantee, for the support of herself and her present and
future children, certain real estate, "to have and hold the
same in fee simple for the purpose aforesaid," this court
held that the deed conveyed a fee to the grantee and the
children, predicating the ruling on this section that a less
estate was not limited by the words of the conveyance.
No less than a fee -simple estate is mentioned in the in-
strument under consideration. Terrell v. Hud, 108 Ga. 655,
658, 34 S. E. 345.
When Absolute Fee Vested. — The language: I will that
my wife have a life estate in my homestead, and at her
death to be the property of my daughter, standing alone
gave a remainder interest in fee-simple to the testator's
daughter under this section. The effect of the language
contained in the second item of the will, immediately fol-
lowing it, to wit; "If my daughter should die without I Cross References. — For
[ 1010 ]
child or children, then to go to my son, or, in case of his
death, to his children," has the effect, when construed in
connection with the declaration of the will immediately
preceding, of converting the estate of the daughter into a
base fee, determinable upon her death, should that event
take place prior to the death of the life-tenant. But she
survived the life- tenant; and having survived the life
tenant she took an estate in fee-simple; the law favor-
ing the vesting of estates at the earliest possible period.
Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A.
274; Perdue v. Anderson, 142 Ga. 309, 82 S. E- 884; Bart-
lett v. Bartlett, 33 Ga. Supp. 172, 173; Bailey v. Ross, 66
Ga. 354; Patterson v. Patterson, 147 Ga. 44, 92 S. E. 882.
Same — Giving Power of Disposition. — The language, "It
is my will that one half of my property. . . shall be-
long to my wife in fee simple," created a fee -simple estate.
The words that follow those in the will, "and to be dis-
posed of by her at her death as she may think proper,"
did not diminish the quantity of interest which the devisee
took in the property, and was not a limitation creating a
less estate than that which the words first quoted im-
port. Lane v. Malcolm, 141 Ga. 424, 426, 81 S. E- 125.
A devise conveying property to X "without limitation
or reserve, for her to do as she thinks best for herself
and all my lawful heirs," conveys a fee under this section.
Wood v. Owen, 133 Ga. 751, 752, 66 S. E. 951.
Same — Denying Power of Disposition. — An item of a will
provided that "my daughter W. to have the two parts
next to C's part;" another item, "I desire that none of the
legatees sell or encumber the lands herein willed to them;
so that my grandchildren also may enjoy the fruits of my
labor." It was held that the first item created a fee un-
der that part of this section which provides that "every
conveyance properly executed shall be construed to convey
the fee, unless a less estate is mentioned and limited;"
and that the second item does not cut it down to a less
estate, for the court will not by construction reduce an es-
tate once devised absolutely in fee by limitations contained
in subsequent parts of the will, unless the intention to
limit the estate, is clearly and unmistakably manifest.
Daniel v. Stewart, 152 Ga. 423, ' 110 S. E. 178, citing Smith
v. Slade, 151 Ga. 176, 106 S. E. 106.
Conveying for Specified Purpose as Limiting Fee. — A
deed providing that the estate shall be used only for speci-
fied purposes conveys an absolute unconditional fee under
this section. If, by its terms, this covenant had created
a forfeiture upon condition broken, the court ought to con-
strue it to prevent that result. Doe v. Roe, 39 Ga. 202,
210.
An estate to X as long as she shall remain satisfied
thereon, to revert in case she is not satisfied conveys a
fee under this section making it her duty to elect to be-
come satisfied within a reasonable time. Crumpler v. Bar-
field, 114 Ga. 570, 572, 40 S. E. 808.
Can Not Increase Limited Estate by Construction. —
Where it was contended that the words "do grant, bar-
gain, sell, revise, convey, release and forever quitclaim"
contained a covenant of warranty by implication, an ex-
pressed covenant following which would be wholly nuga-
tory if such be the case, the latter part of this section,
providing that "If a less estate is expressly limited," etc.,
is aoplicable. McDonough & Co. v. Martin, 88 Ga. 682, 16
S. E. 59.
Intention of Maker Cardinal Rule of Construction. — If
the granting clause is utterly inconsistent with habendum,
the former will prevail, and the habendum clause will be
disregarded. Parker v. Smith, 140 Ga. 789, 80 S. E. 12.
But, by this section all technical rules must be disre-
garded, so as to give effect to the intention of the maker
of the instrument "if the same can be gathered from its
contents." The law favors the vesting of estates, and it is
provided that every conveyance "shall be construed to
vest the fee, unless a less estate is mentioned and limited"
in the conveyance. So a deed "to B and the heirs of her
body after death" to have and hold etc., to the said B, her
heirs and assigns forever in fee -simple, looking to the
whole deed, conveys a life estate to B. Burch v. King, 14
Ga. App. 153, 154, 80 S. E. 664.
§ 3660. (§ 3084.) Technical words. — Limita-
tions over to "heirs," "heirs of the body," "lineal
heirs," "lawful heirs," "issue," or words of similar
import, shall be held to mean "children," whether
the parents be alive or dead; and under such
words, children and the descendants of deceased
children, by representation, in being at the time
of the vesting of the estate, shall take.
a full treatment, see 5 Cum. Dig.
§ 3660
ESTATES AND RIGHTS ATTACHED THERETO
§ 3660
p. 437; 4 Enc. Dig. p. 202; 11 Enc. Dig. p. 580. See also,
the references under Shelley's Case (Rule in), 10 Cum.
Dig. p. 287.
Editor's Note. — Before this section was inserted in the
Code of 1863 the enumerated words were always words of
limitation. But the word "children" was always taken to
be a word of purchase when the children were in esse.
Thus, when the word "children" was so used, there was
no remote limitation because the estate was limited upon
lives in being at the time of making the instrument. But
the persons answering the discription of the above enumer-
ated terms could not be ascertained, generally, until the
death of the maker, and, they need not be in life until
years afterwards, so that the remainder was limited upon
an indefinite failure of issue, and if not falling within the
act of 1821 (the act abolishing estate tails, § 3661), were
void as being a limitation too remote under the rule as
codified in § 3678.
Now the act of 1854 (§ 3662) and the latter part of § 3661
which was added by the codifiers, not being a part of the
Act of 1821, operating together, saved all estates tail by
implication from the operation of the act of 1821. But
this did not always save limitations over after the termi-
nations of a particular estate as created by the above
enumerated terms from the operation of the remote limita-
tions rule. So this section changed the legal import of the
expressions when used as limitations over and they now
mean children, thus becoming words of purchase, and giv-
ing the remainder as herein provided. (See Editor's Notes
to §§ 3661, 3662, 3677 and 3679).
Purpose and Effect of Section. — This section is wholly
new with the code, and works a radical change in the prior
law by making certain words and phrases, or other like
words, always import purchase and not limitation when
used in limitations over. According to the rule in Shelly's
case, ~uch words, so used, would generally be taken as
words of limitation ^ and not of purchase. The code totally
extirpates that celebrated rule, and establishes the very
reverse of its doctrine, as to all limitations over. Ewing
v. Shropshire, 80 Ga. 374, 377, 7 S. E. 554.
General Interpretation — Necessity of Parent Being Life
Tenant. — See Munford v. Peeples, 152 Ga. 31 post, this note.
"Limitations over to heirs, heirs of the body, lineal heirs,
* * * etc., shall be held to mean children, whether the
parents be alive or dead." That is to say, "heirs," "heirs
of the body," and "lineal heirs" of the first taker can take
a vested interest as children in the life time of their
parent; and may also take such interest, as well as en-
joy the possession of the remainder, when their parent is
not the life -tenant, whether such parent be then in life or
not, as where the limitation over is to the heirs, heirs of
the body, or lineal heirs of B. Yet all this was only the
exercise of undue caution; for having thus far expressly
changed the said words of limitation to words of purchase,
they take from the grantor or devisor and not by descent
and therefore no necessity arose for the addition of the
words, "whether the parents be alive or dead." These
words clearly refer alone to parents of the children, whether
such .parents be the life-tenants or not, because children
are thus far substituted for "heirs," "heirs of the body,"
etc., and because if the children are alive at the vesting
in possession of the estate in remainder their descendants
can take no part of the remainder as purchasers. The
other and remaining clause of the section says, "and under
such words (viz., heirs, heirs of the body, lineal heirs, etc.)
children and the descendants of deceased children, by
representation, in being at the time of the vesting of the
estate, shall take/' By this second clause then, these words
are given to more enlarged meaning than children, but
only contingently. "The time of the vesting of the estate,"
mentioned in this section when the children and descendants
of deceased children, by representation, take the estate in
remainder absolutely, must mean the vesting of the re-
mainder in possession at the life-tenant's death, in order
to give the words a proper and legal sense; and hence in
this event, as the estate is a vested remainder in the chil-
dren, defeasible only upon the contingency of their dying
in the life time of the life-tenant, leaving children, no de-
scendants of a deceased child could take under it by repre-
sentation, unless their parent was seized of a vested inter-
est in the lifetime of the life-tenant. So connecting both
clauses, this section means that in limitations over, as, for
instance, in a devise to A for life and at A's death to his
heirs, heirs of the body, lineal heirs, issue, or words of
similar import, such words shall give a vested remainder
to the children of A. at the testator's death and who might
afterwards be born, and in case any such child dies in the
lifetime of the life-tenant, his descendants in esse when
the life-estate falls in shall take his share by representa-
tion; just as is now done in an express devise in remainder
to the children of A and to the descendants of such chil-
dren who die before the life-tenant, by representation;
and both of which devises, being defeasible vested re-
mainders in the children, are clearly distinguishable from
a devise in remainder to the children of A as a class.
Crawley v. Kendrick, 122 Ga. 183, 184, 50 S. E. 41.
Effect upon Rule in Shelley's Case. — To any possible ap-
plication of the rule in Shelley's Case to a conveyance with
the remainder limited to heirs, lineal heirs, lawful heirs,
issue, or the like, this section which provides that any
descriptions which embrace children will enable them to
take, if they are in being, at the time of the vesting of the
estate, is an obstacle. Ewing v. Stropshire, 80 Ga. 374,
378, 7 S. E. 554. See note to § 3659.
The code, by this and §§ 3661 and 3662, abrogates the
rule in Shelley's Case, wipes it out utterly as a rule of law
in limitations over, but this is only as to conveyances
executed since the code went into effect, that is, since the
year 1862. Wilkerson v. Clark, 80 Ga. 367, 372, 7 S. E. 319.
Meaning of Limitation Over. — A "limitation over" the
sense intended by this section includes any estate in the
same property created or contemplated by the conveyance
to be enjoyed after the first estate granted expires or ii
exhausted. Thus in a gift to A for life, remainder to the
heirs of his body, the remainder is "a limitation over" to
the heirs of the body, and under this section of the code,
the children of A and the descendants of deceased children
would take the remainder as purchasers. And the same
persons would take the same estate in the same capacity
were the remainder limited to heirs, lineal heirs, lawful
heirs, issue, or the like. Ewing v. Shropshire, 80 Ga. 374,
378, 7 S. E. 554.
Giving this meaning to the words, "lawful heirs," in this
devise which gives to P for his use, etc., during his life
and then to his lawful heirs, a life -estate was given to the
son, with remainder to his children, if any. Cooper v.
Mitchell Inv. Co., 133 Ga. 769, 66 S. E. 1090, 29 L. R- A.
(N. S.) 291; Thomas v. Berry, 151 Ga. 7, 105 S. E. 478;
Herring v. Rogers, 30 Ga. 615; Rumble v. Strange, 154 Ga.
512, 517, 114 S. E. 881.
Same — Necessity for Element of Substitution. — It may be
that in a first or any single limitation over, the element
of substitution is essential in rigid propriety of legal lan-
guage, but we are well satisfied that the code, in this sec
tion uses the phrase in the broad sense, that which em-
braces successive ownership and possession of the same
property, whether brought about by substitution, or by
immediate and absolute appointment without condition <>r
alternative, as in the example of an estate for life in A,
with remainder to the heirs of his body. When two or
more estates of freehold in the same property are granted
by the same conveyance to be enjoyed successively, or one
in lieu of another, each of them, except the first, is a
limitation over. Ewing v. Shropshire, 80 Ga. 374, 379, 7
S. E- 554.
Same — Property to Which Applicable. — This section with
reference to limitations over, under the liberal construction
placed on the words "limitation over" in the case of Ewing
v. Shropshire, 80 Ga. 374, 7 S. E. 554, would apply to a re-
mainder over after a life -estate in all the property given
to the wife of the testator. Rogers v. Smith, 145 Ga. 234,
236, 88 S. E. 963.
Necessity for Limitation Over. — This section is expressly
confined to limitations over, in which the enumerated words
of limitation are used, and was solely intended to change
the common law and the law prevailing in this State prior
to the code, as to such limitations over, by changing these
words into words of purchase, so as to cut down the first
taker's estate to a life-tenancy and include all persons who
could fall within these words as words of purchase. Craw-
ley v. Kendrick, 122 Ga. 183, 184, 50 S. E- 41.
This section means that, where some particular estate
is created, such as a life estate, or an estate for years,
and there is a limitation over to heirs, heirs of the body,
lineal heirs, or words of similar import, the court shall
hold it to mean children. But in this case there is no
limitation over. It conveys to C. and her "bodily heirs;"
and if it said her "children," it would mean the same
thing. Craig v. Ambrose, 80 Ga. 134, 136, 4 S. E- 1.
In cases where there is a limitation over to heirs or is-
sue, the words "heirs or issue" shall be held to mean
children under this section. But grants to one and "her
heirs by a particular person," or "her issue," (as" dis-
tinguished from a grant to A for life with limitation over
to his issue) convey an absolute estate, to the exclusion
of any children that may be in life at the time of the
conveyance. Whatley v. Barker, 79 Ga. 790, 4 S. E. 387;
Johnson v. Sirmans, 69 Ga. 617; Ewing v. Shropshire, 80
Ga. 374, 7 S. E. 554; McCraw v. Webb, 134 Ga. 579, 582,
68 S. E. 324.
[1011]
§ 3660
ESTATES AND RIGHTS ATTACHED THERETO
§ 3661
Before the heirs, etc., will take as children under this
section there must be an estate less than a fee -simple in
the parent or the first taker. So, where stock was be-
queathed to M. in trust for P., the dividends to be paid
to P or the heirs of her body should she be dead; should
she die leaving no issue of her body or children of deceased
children, then to M., this section has no application for P.
has a fee- simple. Munford v. Peeples, 152 Ga. 31, 38, 108
S. E- 454.
Children.— The word "children" has never included grand-
children. The term only embraces the first generation.
Willis v. Jenkins, 30 Ga. 167.
Same — Common Law Meaning Where Not in Esse. — In
the ordinary and proper sense of the word children, it
means the immediate descendants of a person, as contra-
distinguished from issue, but in its legal signification, as
applied to testamentary instruments (unless the manifest
intention requires a different construction) it is extended
to all the descendants, whether mediate or immediate of
the ancestor. It was so settled in Wild's case, 6 Coke's
R. 17, and has been so held ever since, (in the case of a
devise where no children are in being when the will was
made.) "And this difference," says Lord Coke, "was re-
solved for good law, that if A devises his lands to B and
his children or issues, and he hath no issue at the time
of the devise, it is an estate tail." So an estate to A that
it may be enjoyed by him and his children after him (where
no children are in esse) conveys an estate tail, which is
converted to a fee by § 3661. Butler v. Ralston, 69 Ga.
485, 490.
Same — When Words of Purchase. — In Butler v. Ralston,
69 Ga. 485, "it was held, that, there being no children in
esse, under the rule in Wild's Case (6 Coke's R. 17), the
word 'children' would be treated as a word of limitation,
so that under the English law an estate tail would have
been created, and therefore in Georgia a fee simple title
vested in the first taker. The implication was that the
ruling might have been different if there had been chil-
dren in esse at the death of the testator. The instrument
there considered antedated the code (Ewing v. Shropshire,
80 Ga. 374, 391, 7 S. E- 554); and by the code children or
words made of that import are words of purchase if the
children are in esse at the time of vesting, otherwise the
common law is unchanged and they are words of limita-
tion. See also references to the Butler Case in Gaboury v.
McGovern, 74 Ga. 133, 145; Sumpter v. Carter, 115 Ga. 893,
902, 42 S. E. 324, 60 L. R. A. 274;" Cooper v. Mitchell
Inv. Co., 133 Ga. 769, 771, 66 S. E- 1090.
Same — Not Applicable to Children as a Class. — Under
this section a devise of a remainder to the children of the
life-tenant as a class, does not include grandchildren of the
life -tenant whose parents died before the death of the
testator or before the testator made his will. It was
never intended to change the law as to the devolution of
the title in vested remainders to children as a class.
Crawley v. Kendrick, 122 Ga. 183, 184, 50 S. E. 41. See
Editor's Notes to §§ 3677, 3679.
Illustrations of Application. — Where land was left to the
bodily heirs of A, under this section, it was left to the
children of A. Thomas v. Berry, 151 Ga. 7, 105 S. E- 478.
Under this section, a deed to A, and at his decease to
his child or children or representative of child or children
as he may leave in life, conveys a life-estate to A, with
remainder to the designated remaindermen. Megahee v.
Hatcher, 146 Ga. 498, 91 S. E- 677; King v. McDuffie, 144
Ga. 318, 87 S. E- 22; Goodrich v. Pearce, 83 Ga. 781, 10 S.
E. 451; Edwards v. Edwards, 147 Ga. 12, 92 S. E- 540.
"Bodily heirs," or words of similar import, are held to
mean children. Stanley v. Reeves, 149 Ga. 151, 155, 99 S.
E. 376; Starnes v. Sanders, 151 Ga. 632, 108 S. E- 37.
A deed to A for life and after his death to the heirs of
A, or to devisee if A should make a will and dispose of the
same is a life-estate with remainder over; not a convey-
ance to A and his children or issues, but to A for life, with
remainder to his heirs, which falls directly within the
terms of this section. Brown v. Brown, 97 Ga. 531, 539,
25 S. E. 353.
A deed to X for life with remainder to his surviving
lawful issue in fee with remainder over to Y in case of
failure of issue conveyed a life estate to X with remainder
over to the children, if no children, then limitation as pro-
vided, under this section. Wright v. Hill, 140 Ga. 554,
559, 79 S. E. 546. See also, Bush v. Williams, 141 Ga. 62,
80 S. E. 286.
A deed to S. for life and at her death to her children
convey a life estate with remainder in fee, and being fol-
lowed by "her heirs and assigns" does not change the es-
tate conveyed, for under this section the word "heirs"
means children or descendants of deceased children in
limitation over. Stanley v. Reeves, 149 Ga. 151, 154, 99 S.
E- 376.
A devise "to my children by my first wife and their
children after them," did not create an absolute fee-simple
estate in a daughter of the testator by his first wife, who
was living at his death and had one child, who was also
in life; but it created under this section a life-estate in the
daughter as to such share, with remainder over.. Cooper
v. Mitchell Inv. Co., 133 Ga. 769, 66 S. E. 1090.
In a deed to B and the heirs of her body after death to
hold to her heirs and assigns forever in fee -simple it is
perfectly clear from the language other than that of the
habendum clause, that the purpose of the grantor was to
create a life-estate with remainder over in fee to the heirs
of her body, which means children and descendants of chil-
dren under this section. Burch v. King, 14 Ga. App. 153,
154, 80 S. E. 664.
A limitation over to the heirs of the deceased brothers
of the testator, the brothers being dead when the will was
executed, was equivalent to a limitation over to the chil-
dren of the deceased brothers. Rogers v. Smith, 145 Ga.
234, 236, 88 S. E- 963.
"The time of the vesting of the estate," mentioned in
this section, when the children and descendants of deceased
children, by representation, take the estate in remainder
absolutely, must mean the vesting of the remainder in
possession at the life-tenant's death, in order to give the
words a proper and legal sense; and hence in this event,
as the estate is a vested remainder in the children, de-
feasible only upon the contingency of their dying in the
lifetime of the life -tenant, leaving children, no descendants
of a deceased child could take under it by representation,
unless their parent was seized of a vested interest in the
lifetime of the life-tenant. Crawley v. Kendrick, 122 Ga.
183, 186, 50 S. E. 41.
§ 3661. (§ 3085.) Estates tail. — Estates tail
are prohibited and abolished in this State. Gifts
or grants to one, and the- heirs of his body, or his
heirs male or heirs female, or his heirs by a
particular person, or his children, or his issue,
convey an absolute fee. Estates tail being il-
legal, the law will never presume or imply such
an estate. Limitations which, by the English
rules of construction, would create an estate tail
by implication in this State shall give a life-estate
to the first taker, with remainder over in fee to
his children and their descendants, as above pro-
vided; and if none are living at the time of his
death, remainder over in fee to the beneficiaries
intended by the maker of the instrument. Act
1799, Cobb, 167; Act 1821, Cobb, 169.
I. General Consideration.
II. Creation of Estates Tail.
A. In General.
B. Tests for Determining Estate Intended.
III. Expressed and Implied Estates Tail.
A. In General.
B. Expressed Estates Tail.
C. Implied Estates Tail.
Cross References.
For a full treatment of remainders, see 9 Cum. Dig. p.
1009 et seq. ; 11 Enc. Dig. p. 187 et seq. See also, 5 Cum.
Dig. p. 438, 5 Enc. Dig. p. 203; 4 Cum. Dig. p. 711; 4 Enc.
Dig. p. 311. See the titles cited at these citations.
I. GENERAL CONSIDERATIONS.
Editor's Note.— The constitution of 1777 and 1789 pro-
hibited the entailment of estates; but this prohibition was
omitted from the Constitution of 1798. Because of this
omission the act of 1799 (Cobb 167) was passed to prevent
entailments. But this act omitted to state what the ef-
fect of making such a conveyance would be. The legis-
lature was contented to leave it at that until 1821. There
being no Supreme Court to decide the effect of a con-
veyance in fee tail, a diversity of adjudications on the
subject by the superior courts gave rise to the Act of 1821.
(See the preamble to the Act, Cobb 169).
This Act converted all estates tail, made so by the Eng-
lish Statute De Donis, into fee simples. As construed by
our courts this included estates tail by implication as de-
termined by the English Courts, but there was some con-
trariety of opinion among the members of the court and
bar as to the soundness of this position. (See Hurtz v.
Abrahams, 110 Ga. 707, 709, 36 S. E. 409, and see post, this
1012
f 3661
ESTATES AND RIGHTS ATTACHED THERETO
§ 3661
iote, "Expressed and Implied Estates Tail," III.) So,
vhen the section was codified, although in effect the Act
ts to expressed estates tail was not changed, the operation
if it upon estates tail by implication was prevented by the
addition of the latter part of the section.
As pointed out in the Editor's Note to § 3662 the Act of
854 took all estates tail which were created by the
numerated expressions out of the operation of the harsh
nle of the Act of 1821. So that with the addition of the
itter part of this section in conjunction with § 3660 (see
Editor's Note to that section) all estates tail by implica-
ion are saved from the operation of the Act of 1821, and
he intention of the testator enforced. See Ewing v. Shrop-
hire, 80 Ga. 374, 381, 7 S. E- 554.
It will be seen that we have three different holdings as
o the effect of creating what was an estate tail by im-
lication under the English decisions — one under the Act
f 1821 before the Acts of 1854, one since the Act of 1854
iut before the Code, and one since the Code. These (lif-
erent holdings have been treated in the following note
nd it is believed that if the distinction is observed, the
earcher will encounter much less difficulty in organizing
he cases on this subject. (See the Editor's Notes to §§
660, 3662, 3677, 3678).
In providing for the disposition to be made of estates
ail by implication the language of this section "as above
irovided," obviously means as provided in § 3660 (see
Swing v. Shropshire, 80 Ga. 374, 381, 7 S. E. 554), and the
ist clause of § 3662, which states that the enumerated
imitations over "shall convey the estate in the manner
described in the preceding section," create a uniform
lethod, so that each member of each class of beneficiaries
a instruments creating such estates take the same estate,
egardless of which section controls.
Purpose of This Section. — It was the intention of the
2gislature, by the Act of 1821, to prevent testators and
thers from rendering estates unalienable within the limits
irescribed by law, to-wit: during a life or lives in being,
nd twenty -one years after, and a few months more, to
>rovide for the case of a posthumous child. And the Act
<f 1854, in relation to the limitation over of estates, is con-
irmatory of this conclusion. Hollifield v. Stell, 17 Ga.
80, 284.
When "Heirs of the Body" Words of Limitation. — Prior
o 1863, the term, "heirs of the body," when used in con-
eyances, unless modified or controlled by qualifying or
xplanatory words, were words of limitation, not words of
lurchase. This section leaves them still words of limita-
ion, where no less estate than the fee is expressed, and
vhere they are used not by way of limitation over, but of
lirect and immediate limitation of the estate granted.
When they take effect as words of limitation, the}' do so
s they did prior to the adoption of the code, under fhe
ict of 1821, and pass not a fee tail but a fee simple. The
imitation power of the term, "heirs of the body,"' is nei-
her more nor less than that of "heirs," but just the same.
_,egally, they mean heirs general, both under the code and
he act of 1821. The difference is, that under the code
hey are taken as words of limitation only in the one in-
itance, that is, where they apply directly to the estate
granted. It may be suggested as universally true, that
vhenever these words can be treated under the code as
vords of limitation, they are superfluous; and the same
nay be said of the word "heirs," see § 3639. Wilkerson
i. Clark, 80 Ga. 367, 372, 7 S. E. 319.
Section Applicable to Personalty. — Bequests of person? 1
)roperty expressed in such terms as would have passed an
:state-tail by the Statute de donis conditionalibus, will
/est in the persons to whom they are made, an absolute,
mconditional, fee-simple estate. Gray v. Gray, 20 Ga. 804.
No Distinction as to Will or Deed. — This section makes
10 distinction as to whether such estates are created by
ieed or will. Baird v. Brookin, 86 Ga. 709, 713, 12 S. E.
El.
II. CREATION OF ESTATES TAIL.
A. In General.
Section Now Rule of Construction — Rules of Construction
Named. — It is obvious that this rule, which is said to be a
rule of law, and not of construction, fixes nothing except
that the use of certain words, in a certain way will be held
to indicate an intention to create an estate tail, and of cer-
tain other words, an intention to create a fee-simple.
Where the terms used are heirs of the body, alone, or
where they are heirs general, the rule easily and plainly
performs its office; but difficulty begins, when words are
employed which are assumed to be only equivalent to these
terms; or where such words, or words supposed to be
similar in effect to each of these terms, are used in the
same instrument. Then it is that resort must be had to
referential construction; and the task of fixing an inten-
tion for the testator, needs more a rule of construction
than of law. These rules of construction are: 1. That the
intention of the testator is to be gathered from a con-
sideration of the whole will — a comparison of different
terms, and effect given to this intention, if it can be done
legally. 2. That his general intention must prevail over a
particular intention. 3. If there be two repugnant clauses,
which can not be reconciled, the latter must prevail.
Robert v. West, 15 Ga. 122, 140.
Words Must Import Intention to Create Tail. — By this
section before an estate tail can be held to be created by
any words in a will, those words must show such inten-
tion in the testator's mind very clearly. Gibson v. Harda
way, 68 Ga. 370, 377.
Same — Intent Deducible from Whole Instrument. — A de-
vise to "the children of my first wife and their children
after them" created an estate in remainder rather than
an estate tail for the law will never presume an estate
tail where a remainder was likely intended deducible from
the instrument as a whole. Cooper v. Mitchell Inv. Co.
133 Ga. 769, 772, 66 S. E. 1090. See also, Phinizy v. Wal-
lace, 136 Ga. 520, 526, 71 S. E. 896.
Estate Tail Not Presumed. — "Estates tail being illegal,
the law will never presume or imply such an estate. This
clause, taken literally, is as old in our law, though not,
prior to the code, inserted in any statute, as the abolition
of entails by the constitution of 1777. But if it means, as
it probably does, that the law will not imply an intention
to create an estate tail, even when such intention can be
ascertained by clear inference, it is either new law or a
somewhat doubtful exposition of the old." Ewing v.
Shropshire, 80 Ga. 374, 381, 7 S. E- 554.
Estates tail are prohibited in Georgia — these words are,
by legislation, as it were, deprived of that settled significa-
tion; and therefore, presumption will not here, readily
favor such estates. Robert v. West, 15 Ga. 122, 145.
It was wholly needless for the code to point out ex-
pressly in whom the fee would vest, since it follows in-
evitably from the nature of words of entail, as from all
words of limitation, that by virtue of them no interest
whatever in the fee could vest presently in heirs of the
body, heirs male or female, heirs by a particular person,
children or issue, and consequently that for the convey-
ance to pass an absolute fee at all, it must pass the same
to the parent, the first taker. Ewing v. Shropshire, 80
Ga. 374, 389, 7 S. E. 554.
In Whom Estate Vests. — Although a clause stops with
the declaration that an absolute fee is conveyed without
stating expressly to whom it is conveyed or in whom it
vests, the obvious meaning is that the absolute fee vests
just where the estate tail would vest were the latter law-
ful, and were the former not substituted by the law in its
place, to-wit, in the first taker. Words of purchase can
introduce into a conveyance any number of persons for the
estate to vest in immediately, but words of limitation can
introduce none in whom it can ever vest save by inherit-
ance or descent. The first tenant in tail constituted by
the conveyance has always taken the whole fee tail, just
as a sole tenant in fee constituted by the conveyance takes
the whole fee simple. Under words of purchase, children
may take either with or after the parent; but under words
of limitation, they can not take with, but must take after,
or not at all. This excludes them from sharing in the fee
with the parent as tenants in common, and also from tak-
ing a vested interest, or indeed even a contingent inter-
est, by way of remainder, words of purchase being neces-
sary to create in behalf of children a remainder, vested or
contingent, as well as a tenancy in common. We thus
perceive that it was wholly needless for the code to point
out expressly in whom the fee would vest, since it follows
inevitably from the nature of words of entail, as from all
words of limitation, that by virtue of them no interest
whatever in the fee could vest presently in heirs of the
body, heirs male or female, heirs by a particular person,
children or issue, and consequently that for the convey-
ance to pass an absolute fee at all, it must pass the same
to the parent, the first taker. Ewing v. Shropshire, 80
Ga. 374, 389, 7 S. E. 554.
B. Tests for Determining Estates Intended.
In General. — In Benton v. Patterson, 8 Ga. 146, the
court used this language: "Four tests have been applied
by the courts for the purpose of ascertaining the nature
of the estate intended to be created, and, notwithstanding
the words of the instrument would per se be construed
into a limitation, yet they will be held to be words of pur-
chase, either where nq estate of freehold is given to the
ancestor, or where no estate of inheritance is given to the
heir, or where a new inheritance is grafted on the words
[ 1013 ]
§ 3661
ESTATES AND RIGHTS ATTACHED THERETO
§ 3661
of entail, or lastly, where explanatory words are super-
added." And in Burton v. Black, 30 Ga. 638, the court
say, "The question, whether or not an estate tail is cre-
ated, is always resolvable into two others, of which one
is, what persons are intended to take the property? And
the other is, do these persons constitute a class, having
succession from generation to generation, and to the end
of the blood!'" Gabonry v. afcGovern, 74 Ga. 1*33. 142.
Where no Estate of Inheritance Given to Heir. — "A de-
vise to A, with the proviso that should A die without
children there shall be a limitation over to a third party,
creates a base or qualified fee, subject to be divested on
the death of the first taker without children." (See list of
cases cited in principal case substantiating this statement.)
The language "said land not to be disposed of by them in
any way except renting or leasing, and not subject to be
sold for any debts they may contract," differentiates this
case from the cases cited above, and requires the construc-
tion that it was the intention of the testator to give a
life-estate to his children with remainder over to their re-
spective children, should they leave any. Reynolds v.
Dolvin, 154 Ga. 496, 498, 114 S. E. 879. See note to § 3659.
Where estate is given to the widow during her widow-
hood to be divided between her and the testator's chil-
dren upon her marriage, and if she should die without
children by second marriage, her part to go to testator's
children, did not create an estate tail so as to become a
fee simple under this section. It created a fee conditional
estate. Clements v. Glass, 23 Ga. 395.
A devise to D "and her child or children, should she
have any," with remainder over to X, should she die
leaving no children or grandchildren, creates a determina-
ble fee in 17 and not an estate tail. Greer v. Pate, 85 Ga.
552, 11 S. E. 869. (Will made in 1851).
A devise to T. his heirs, executors and assigns forever,
except should he die "without lineal descendants" to go
over 1o X, does not create an estate tail, because it can-
not be inferred that "lineal descendants" created an estate
in perpetuity; for the estate of the first taker is to be a
fee simple excluding the "lineal descendants," if he die
with lineal descendants, but if he does not die with them,
the property is to go over. There is no entailment, de-
visor leaving it to devisee to provide for his own issue,
and hence this section has no application. Forman v.
Troup, 30 Ga. 496 as discussed in Burton v. Black, 30 Ga.
638, 642.
A devise in a will (executed in 1860) to J. in fee-simple,
"and should my son J. die without leaving any child or
children, to revert back to my estate to be sold and equally
divided amongst the legal representatives of my estate
who may then be living," conveys to 1. an estate in fee,
defeasible on his dving childless. Kinard v. Hale, 128 Ga.
485, 57 S. E. 761.
A base or determinable fee is created when a devise or
bequest to a named person, followed by a provision that if
he shall die childless the property shall pass to some other
perron, conveys to him a fee subject to be divested upon
his dying childless, and does not confer upon any child,
which he may have, any interest or estate in remainder;
unless there Ik- something to indicate a contrary intent on
the part of the testator. (There may be some expressions
to contra in Burton v. Black, 30 (la. 638, but they went
beyond necessity of the case. I'hini/y v. Wallace, 136
Ga. 52(1. 71 S. E. 896). Slappey v. Yining. 150 Ga. 792, 796.
105 S. I-;. 353, citing Hill v. Terrell, 123 Ga. ■*'>. 51 S. E. 81
and eaaei i itt •!.
An (Stat. to X for life, the remainder to the heirs of
her body and their heirs forever does not create an estate
tail in X to creatt an estate tail. The limitation over
must he to the hen s. 14cne1.1l or special, of the holder of
the freehold to 1,, affected. This is not the ease here for
tli' heiri of X.'s children are not the heirs of X. Hence
this section has ,i., application. Smith v. Collins, ''ii (..1
411. 415. 17 S. K. 10H.
Engrafting New Inheritance upon Words of Entail. It
is only when the distributive words ehanfcc the line of
ut marked out for property, by the words upon which
engrafted, that the latter are taken as words 'f
purchase." Hollifield v. Stell, 17 Ga. 280, 287,
Explanatory Words Superadded. "In the CaSCJ Cited in 69
there were no superadded words to show tint
maker of thl inst t unient intruded that tin WOrdl used should
construed t>. be words of purchase and not of limitation,
and m ti 1 Gibson \. Il.ud.iw G 170, tin tests
toi did not make the beCJUl I \j t"i or during tli.
"f Ins daughters, but tate absolutely to
them, subject to '" divested, is 1 died without
child or children." Gabourj 1 IfcGovern, ; I t 145.
A devise to A as trustee and testamentary guardian for
S and |ns ii • dilnrr mer the rntite rst.,tr |
in case of failure of increase." could not mean a delivery
over 1.1 case of an indefinite failure of issue, but, referred
to issue living at death of S. Benton v. Patterson, 8 Ga.
146, 150. See also. Tucker v. Adams, 14 Ga. 548. 577;
Hallimld v. Stell. 17 G . 280.
Where an estate was given to a daughter and her is
sue during her life, provision being made for the remainder
over if she die without issue, but 1.0 provision being made
for the disposal of the estate in case of her dying with is-
sue, the disposal intended where she die with issue will be
gathered from the intention of the testator as expressed
in the will. These words alone would create an estate tail
under this section. But it could not be intended to create
an estate tail for the remainderman, in case no issue,
were in life at the time of the making of the instrument,
being a brother, mother and sister; and the trustee to
handle the estate was also in life. Clearly then, looking to
the contents of the will, an entailment could not have
been intended. The words "lawful issue" taken in connec-
tion with the explanatory word, superadded, are w
of purchase and not of limitation. Gabourv v. McGovern,
74 Ga. 133, 142.
Necessity of Words of Limitation.— To look at words at
all as words of entail, they have to be regarded as words
of limitation; for words of purchase, as such, are the re-
verse of words of entail, and no estate tail ever was or
could be created by their use. It is immaterial that the
same word or words may be sometimes the one and some-
times the other, for when they are considered exclusively
in the one character, they are as different from what they
are in the other as they would be if they were different
words altogether. This section deals with the enumerated
words solely as words of entail, and declares their effect,
as such, when used in the manner indicated in the ix
amples which the clause presents. It does not undertake
to make them more or less words of entail when so used
than they were before, nor does it, as we think, intend to
vary their effect in any respect from what it was before
under the act of 182L Ewing v. Shropshire, 80 Ga. 374. 388,
7 S. E. 554.
Definite Failure of Issue Prevents Entailment. — Where the
limitation over is upon a definite failure of issue an estate
tail could never be implied either before or after the act
of 1854 (§ 3662) and this section could have no application
in such cases. The definiteness of the failure may be shown
by the terms themselves limiting the failure to the life of
the life tenant either expressly or by superadded words hiv-
ing that effect, as where the will designates that the e» -
cutor is to make the division upon such failure. The fol-
lowing cases are illustrations: Matthews v. Hudson. 81 Ga.
120, 7 S. E. 286; Groce v. Rittenberry, 14 Ga, 2S2; Doe v.
Koe, 30 Ga. 453; Forman v. Trouo, 30 Ga. 4%; Burton v.
Black, 30 Ga. 638; Tennell v. Ford. 30 Ga. 707; Hill v. A -
hid, 46 Ga. 247. 850; Greer v. Pate. BS Ga. 552. 11 S
1C. 869;*ClaXtOn v. Week-. 21 Ga. 2l^; Hertz v. Abrahams.
IK) Ga. 707-728, 36 S. E. 4<«". See i 3662 and n I
A gift to S., for and during the natural life of her hus-
band J., then in trust to and for the child or children ol
S. who may be living at the time' of her death, to his. or
their executors, admmistrat. is and assigns, forever are
words of purchase and hence this section does not apply.
Dudley v. Mallery, 4 Ga. 52.
The words "after her death, if no lawful issue" we-
strued to mean without lawful issue at the death <>i the
deceased, and to constitute a good limitation in an ei
utory devise. Atw<ll v. Barney, Dud. 207 (Ga.)
III. EXPRESSED AND IMPLIED ESTATES TAIL.
A. In General.
See ante, this note. "('.<iKi.il Considerations," I. catchline,
"Editor's Note."
Distinction Made between Expressed and Implied Es-
tates Tail. It is true that < -tales tail BXpreSI ar< .)< t
specifically mentioned; but that the codifiera contemplated
first, all eStS(tei tail, then those expirss. and then thoSC
implied, is beyond Question. What they declared as to ..U
was that they arc abolished, ..nd what they declared
those wl.ii h they considered > \; distinguished
implied, was. that being abolished, the recited forms ar>-
propriate t<> then creation convey an absolute tec. 1
thus left unchanged the prioi law, as declared by the id
of 1 a as ,vt.it<- tail expn oncerned, and
.,t the same time made thin a more definite and
lie than was thai
which, when such were legal, would serve to <-rc-
Ewing v. Shropshire , 80 G S. B
. M, >-,i., ■. 11 • g • . • 'IS.
1
Same — Distinction Grew 'Jut of Gondii tint: Holdings. —
v< - the discussion in G I I iu which
liil I
§ 3661
ESTATES AND RIGHTS ATTACHED THERETO
§ 3661
case Mr. Cobb, who drafted all the real estate law of the
code, was of counsel for the losing party. He moulded the
code in its provisions touching estates tail so as to cou-
form more nearly to the views of the dissenting judge than
to those of the majority of the court as regards both the
statute de donis and the act of 1821 in its application there-
to. Ewing v. Shropshire, 80 Ga. 374, 380, 7 S- E. 554.
Another reason for enumerating the expressions creating
estate tails was the double construction of this latter act,
and the desire to mark clearly the distinction between the
two classes of entails, express and implied, to both of which
the act had in several instances been applied with one and
the same result. By setting down the exact forms deemed
appropriate to estates tail, express, all other forms recog-
nized by the English courts could be characterized as es-
tates tail implied, under the subsequent clauses of the sec-
tion. Fwing v. Shropshire, 80 Ga. 374, 381, 7 S. F- 554.
Same — Same — Method of Dealing with Fact — In Gen-
eral.— Finally, it may be observed that the scheme of the
code seems to be to leave what it deems forms of entiil
express just as it found them under the uniform construc-
tion of the act of 1821 but to disengage from that act all
other forms, and annex to them the invariable consequence
of a life estate with remainder Over. Fwing v. Shropshire,
80 Ga. 374, 382, 7 S. F. 554. See also, Megahee v. Hatcher,
146 Ga. 498, 500, 91 S. F- 677.
B. Expressed Estates Tail.
Enumerated Words — Exhaustion of Words pf Limitation.
— The scheme of the code with regard to words of entail
pure and simple, used is «i:ch, unqualified by concomitant
this: In the examples
or explanatory terms..
enumerated in this cla
of limitation, and as
inheritance, that of
fee. All other insta r use, the code treats as
limitations over, and u words of entail into words
of purchase
554.
Same— Not Words
tates tail as inumei
purchase because §
body" and "issue"
over." Fwing v. J
Prior to the coc
them only, they are words
ognizes but one species of
il, they pass an absolute
Ewing re, 80 Ga. 374, 388, 7 S. E-
f*u iiase. — The words creating es-
re not intended as words of
the generic terms, "heirs of
purchase only in "limitations
0 Ga. 374, 385, 7 S. E. 554.
3, "heirs of the body," when
used in conveyances, a modified or controlled by
qualifying or explanatoi-y words, were words of limitation,
not words of purchase. This section leaves them still words
of limitation, where no less estate than the fee is expressed,
and where they are used not by way of limitation over,
but of direct and imniediate limitation of the estate granted.
When they take effect as words of limitation, they do so
as they did prior to the adoption of the code, under the act
of 1821, and pass nc,t a fee tail but a fee simple. Wilker-
son v. Clark, 80 Ga, 367, 373, 7 S. E. 319.
Same— Meaning oft "Children."— "Gifts or grants to one
and the heirs of hls body, or his heirs male or heirs fe-
male,^ or his heirs by a particular person, or his children,
or his issue, convey an absolute fee." According to the
English law, all the words here enumerated' are primarily
words of entail except "children," which is primarily a word
of purchase. T^e other words when vised alone are not
ambiguous, this one is; and its introduction into the clause
with the others upon an apparent equality, as though it
were as free as they from ambiguity, is what makes the
chief difficulty 0f construction. According to Wilde's case,
when this Worrj js coupled in the gift or grant immediately
with the ancestor, as in the language of the code, it im-
ports limitation, and consequently an estate tail, if there be
no child or children in esse at the time of the conveyance;
but otherwise, even when so connected, it is a word of pur-
chase. Its real quality in any given instance, where it is
used alone m such connection, depends upon an extrinsic
fact, to witv the existence of non-existence at the time of
the gift or grant of persons, or at least of a person to
whom the w-ord can properly be applied. The code betrays
not the slightest consciousness of this double or conditional
signification Qf the term, but seems to treat it as if its
meaning^ we^e as fixed and invariable as that of the words
with which it is associated. By reason of this ambiguity in
one of its terms the whole clause is apparently ambiguous.
Fwing v. 80 Ga. 374, 382, 7 S. E. 554.
But the d t we confine our attention to the word as
a word .of | e ambiguity of the word, though still
existing r. 1S a whole, disappears from the clause
and cease b it. As one of entail, the word has
but a sin-. ing, and that alone is within the clause;
consequei ly *■- ause, though apparently ambiguous, is
not reall is wholly free from ambiguity. Ewing
v- Shrop ,i. 374, 388, 7 S. E. 554.
Same — Same — When "Children" Applicable. — The word
"children," as used in this section applies only when the
grantee has no children in esse when the grant takes ef-
fect. Stamey v. McGinnis, 145 Ga. 226, 230, 88 S. E. 935.
See Brown v. Weaver, 28 Ga. 377.
Same — Same — Same — Illustration. — A testator devised
property to his son, W, and his children, (W at the time hav-
ing no children) with devise over to the heirs named in
his will upon W dying without having a child or children.
The court held, that W took an estate tail, with remainder
to the heirs named in the will, which is converted into a fee
simple estate by this section. Wiley v. Smith, 3 Ga. 551.
See also Robinson v. McDonald, 2 Ga. 116.
The legal effect of the words "and her children or child,
should any be born to her," is the same as if it had been
made to D and her children (she having no children at the
time), which, standing alone would create an express estate
tail and invest her, under this section, with the absolute
fee. Butler v. Ralston, 69 Ga. 485; Ewing v. Shropshire,
80 Ga. 374, 382, 7 S. F. 554; Lofton v. Murchison, 80 Ga.
391, 7 S. E. 322; Estill v. Beers, 82 Ga. 608, 612, 9 S. E-
596; Goodrich v. Pearce, §3 Ga. 783, 10 S. E. 451; Baird v.
Brookin, 86 Ga. 709, 12 S. E- 981; Davis v. Hollingsworth, 113
Ga. 210, 211, 38 S. E. 827.
A devise to the daughters of a testator of property to be
settled upon them before the consumation of any marriage,
"so that the same may be enjoyed by them and their chil-
dren after them;" there being no children in esse, would
create an estate tail, and therefore a fee simple title would
vest in the first taker under this section. Butler v. Ralston,
69 Ga. 485.
A devise to X and her children creates a tenancy in com-
mon if the children be in life, but, if they be not in life, it
is an estate tail converted into a fee simple by this sec-
tion. Ewing v. Shropshire, 80 Ga. 374, 7 S. F. 554; Estill
v. Beers, 82 Ga. 608, 9 S. F. 596; Baird v. Brookin, 86 Ga.
709, 712, 12 S. E. 981; Cord v. Whitehead, 98 Ga. 381, 385;
25 S. E. 767; Hollis v. Lawton, 107 Ga. 102, 32 S. E. 846;
Sumpter v. Carter, 115 Ga. 893, 901, 42 S. E- 324.
The word "children" is a word of purchase and not of
limitation, and a conveyance to a husband and wife and
"to their children" carries title in fee simple to such chil-
dren of the husband and wife as are in esse at the time of
the conveyance, as tenants in common with their parents,
even though such children are not designated by their
names. This section has no application to such a case.
Keith v. Chastain, 157 Ga. 1, 121 S. E. 233.
Under this section of the code, as construed in Ewing v.
Shropshire, a conveyance to three daughters and their
children one of them having a child at the time and the
others nonej passes an estate in common to the one
daughter and her child, and sole estate in fee to each of the
other daughters. Estill v. Beers, 82 Ga. 608, 9 S. E. 596.
A will "to C. and at her death to go to her children,"
created an estate for life in the daughter of the testator,
with remainder to her children living at her death and
therefore is not an entailment under this section. Ford
v. Cook, 73 Ga. 215.
Code Made No Changes Except Enumeration. — As to
these, comprehending all the instances of express entailment
which they recognized, the codifiers found the law as they
wished to leave it, though touching estates tail by implica-
tion the act was not adapted to their design. We think,
that as to estates tail express, the act and the code are one
and the same. Ewing v. Shropshire, 80 Ga. 374, 390, 7 S.
E. 554.
Section 3660 Not Applicable to Expressed Tails. — Where a
particular estate is created with a limitation over to heirs,
heirs of the body, lineal heirs, lawful heirs, issue, or words
of similar import, they will be held to mean children, and
hence words of purchase under § 3660; but where a devise is
made to one and her bodily heirs, this, under the rule in
Shelley's case, would create an estate in perpetuity, and
under the code of this State, would convey a fee simple to
the devisee named. Craig v. Ambrose, 80 Ga. 134, 4 S. F. 1.
Same — Combination of Two Sets of Words of Limitations.
— Although in cases where there is a limitation over to
heirs or issue, the words "heirs or issue" shall be held to
mean children under § 3660, grants to one and "her heirs
by a particular person," or "her issue," convey an absolute
estate under this section, to the exclusion of any children
that may be in life at the time of the conveyance. Whatley
v. Barker. 79 Ga. 790, 4 S. E. 387: Johnson v. Sirmans, 69
Ga. 617; Ewing v. Shropshire, 80 Ga. 374, 7 S. E- 554. The
grant being to her, "her heirs and issue by W," the combi-
nation of two sets of words of limitation can not by any
sort of legal alchemy convert them into words of purchase.
McCraw v. Webb, 134 Ga. 579, 582, 68 S. E. 324.
Limitation Over or Reversion Limits to Determinable
Fee.— A deed to X and heirs of her body with provision of
[ 1015 ]
§ 3661
ESTATES AND RIGHTS ATTACHED THERETO
§ 3661
reverter in case of such failure of heirs conveys a fee tail
which is converted into a fee simple under this section and
made a determinable fee by the reverter provision. Shealy
v. Wammock, 115 Ga. 913, 42 S. E- 239.
A deed to X "and her children should any be born to
her" (she having no child at that time), "and in the event
she die without any in life, then to revert conveys a de-
terminable fee to X. Davis v. Hollingsworth, 113 Ga. 210,
38 S. E- 827.
"Grandchildren" Used as Inducement and Not Entailment.
—A deed * * * between J. and H. and her bodily heirs,
* * * the said J., for and in consideration of the natural
love and affection he has for his daughter and her heirs,
grandchildren, by H., hereby gives, grants, and conveys
to H. and her heirs and assigns forever in fee simple, con-
veys a fee simple to H. under this section being a grant to
one and the heirs of her body. The reference to grand-
children is to the children of grantee by way of inducement
and they take no estate though in life when conveyance
made. Pace v. Forman, 148 Ga. 507, 97 S. E. 70.
Unaffected by Acts of 1854 (Section 3662).— All of those
expressions which created an expressed fee tail at common
law as "to X and the heirs of his body," or "to A and his
issue" have always created estates tail which were con-
verted to fees by this section (acts 1821) in this state and
the acts of 1854 have had no effect upon them. This ap-
plies to both real and personal property. Cases illustrat-
ing this class are: Kemp v. Daniel, 8 Ga. 385, 387;
Smith v. Dunwoody, 19 Ga. 237, 258; Ghilders v. Childers,
21 Ga. 377, 378; Carroll v. Carroll, 25 Ga. 260, 262; Andrews
v. Bonner, 26 Ga. 520; Caraway v. Smith, 28 Ga. 541; What-
ley v. Barker, 79 Ga. 790, 4 S. E. 387; Craig v. Ambrose,
80 Ga. 134, 4 S. E- 1; Ewing v. Shropshire, 80 Ga. 374, 7
S. E. 554; Griffin v. Stewart, 101 Ga. 720, 29 S. E- 29; Hertz
v. Abrahams, 110 Ga. 707-728, 36 S. E- 409.
Illustration of Expressed Estates Tail. — Under a convey-
ance to "L and the heirs of her body by J. their heirs and
assigns," L. took an absolute fee-simple title to the prop-
erty conveyed for under this section it created an expressed
fee tail being converted into a fee. McCraw v. Webb, 134
Ga. 579, 68 S. E. 324; Whatley v. Barker, 79 Ga. 790, 4 S.
E- 387; Griffin v. Stewart, 101 Ga. 720, 29 S. E. 29; Perkins
v. Perkins, 147 Ga. 122, 92 S. E. 875; Lane v. Cordell, 147
Ga. 100, 101, 92 S. E. 887.
A deed to a married woman and the heirs of her body
conveyed a fee-simple, absolute estate to her, and her chil-
dren took no interest in the property under such a deed.
Whatley v. Barker, 79 Ga. 790, 4 S. E. 387.
The words in this instrument are, "hath given to my
niece's daughter and the' heirs of her body at my decease
forever." This vested the absolute estate in her under this
section. Johnson v. Sirmans, 69 Ga. 617, 618.
A gift to a daughter and the heirs of her body, she having
a child in being at the time of the execution and delivery,
creates an absolute fee in the daughter, the child acquiring
nothing, because the expression "heirs of her body" (there
being no other words converting 'them into words of pur-
chase) has same meaning under this section as it had at
common law, and therefore is an effort to create an estate
tail, which is converted to a fee simple by this section.
Ewing v. Shropshire, 80 Ga. 374, 382, 7 S. E. 554.
The devise is to the daughter of the testator and her
bodily heirs so the daughter takes a fee. Craig v. Ambrose,
80 Ga. 134, 136, 4 S. E. 1.
A marriage settlement whereby X conveys her property
to Y in trust for herself and the heirs of her body created
a fee in her under this section. Wayne v. Lawrence, 58
Ga. 16.
The grantees acquired under this section a fee-simple in-
terest in remainder in the property in controversy, notwith-
standing the deed was made to the daughters "and the
heirs of their bodies." Griffin v. Stewart, 101 Ga. 720, 722,
29 S. E. 29; Ellis v. Gray, 110 Ga. 611, 614, 36 S. E. 97.
A deed to have and to hold to the only proper use, bene-
fit, and behoof of X and her bodily heirs, the said party of
the second part, her bodily heirs, executors, administrators,
and assigns, in fee simple, was to formerly have conveyed
a fee tail to and hence a fee by this section. Stamey v.
McGinnis, 145 Ga. 226, 88 S. E. 935.
C. Implied Estates Tail.
See notes to § 3662.
Effect of Section on Implied Estate Tail. — The effect of
our legislation of 1821, and that of 1854, (This section and
§ 3662) was to forbid the presumption or implication of an
estate tail; and where by the English rules of construction
such an estate would have been created by implication, our
statutes meant that a life estate should be vested in the
first taker, with a remainder over in fee to his children and
their descendants. Ford v. Cook, 73 Ga. 215, 218. See
Ewing v. Shropshire, 80 Ga. 374, 382, 7 S. E. 554.
Method of Determining Implied Entailment. — The Eng-
lish courts, in arriving at estates -tail by' implication or in-
ference, always proceeded on the principle of being guided
by the intention of the grantor. They applied the English
rules of construction for that purpose, and one of these
was, that an estate in real property to one generally, gave
an estate for life only. But by § 3659 an estate to one
generally shall be held a fee simple. Burton v. Black, 30
Ga. 638, 643. This section and § 3659 are from the same act.
"Estates tail by implication arose in England under de-
vises wherein a greater estate than for the life of the first
taker was irresistibly inferred when the devise was to A,
without the addH words "avd his heirs,' and the same
estate was limite • words importing an indefinite
failure of issue; and such devises, as, to A, and
if he dies without the devise was construed by
necessary implicati ji I iivalent to a devise to A and
his issue, and if he I issue, to B, so as to bring
it within the intt m e letter, of the statute de
donis." Hertz v. AbrahaJi '-' Ga. 707, 709, 36 S. E. 409.
"If property is g A for life, and if he shall die
without issue, then tl\e issue of A. are the per-
sons whose existence eaf the property from going
over to B; and the jusl inferenci is, that the 'issue,' with-
out further description, are intended to take it. This, there-
fore, is equivalent to a gift A. for life, remainder to his
issue, if any, and if none, then ever to B.; or under the rule
in Shelley's case, a g., it A his issue, which is an
express entail, issue being I class which has succession
from generation to generatior I "he lineal blood is ex-
hausted. Here, 'issue' prevent property from going
over, and 'issue,' by tin same description, no more no less,
are inferred to have bee ' take it. But if prop-
erty is given to A. for . •• - shall die 'without is-
sue living at his death,' the* " B., the issue of A.
'living at his death,' are the who are to prevent
the property from going S»e just inference is,
that only such issue are m\ o take it as shall be liv-
ing at A.'s death. Here, thei t • estate-tail, for 'issue
living at the death of A / can embrace persons in
future generations. These *« cases clearly il-
lustrate the principle on vr ntion to create an
estate-tail is reached by im'iicatioii, more properly, by
inference." Burton v. Black 30 C ■ 640.
Insertion of "But" befon "LimJ ons Which," etc.—
To insert the word, "but," .. • 1 by counsel before
the word "limitations," woulc - ' ate" an exception to
the absolute, general- rule i rimed preceding. This
should not be done; the word there should be
construed in the light of ou: ?ns. This pro-
vision of our statute should be held ■ an that limita-
tions which, under the En.. E construction,
would create an estate tail I On, and which
are not illegal, are to be c< -ovided by it.
In other words, the provision gaming with, "limitations,
which by the English statute," n some cases
save provisions in deeds and wills whi ■?ht otherwise
be brought under the ban of the statute «>ng all estates
tail illegal. Slappey v. Vining, 150 G »5j 105 S. E.
353.
Cases Decided before Section ..■.■'. i vise made be-
fore the code (§ 3660) to X during " then "to be
and remain the property of the ht " y after her
death" passed a fee simple to X und r this c&on for, in-
asmuch as it was before § 3660, > "heirs of
the body" did not mean children, ;nd t e were not
words of purchase, but were words of under the
rule in Shelley's Case. Wilkerson v. ' Ga. 367, 7
S. E- 319.
Cases Decided before Acts of 1854 (5 366' Crtated Fee.
— There is a class of cases which wee decided to create
estates tail by implication under th> • m ' v, before
words importing an indefinite failure e made a
definite failure by § 3662 (acts of 1854), ' also be-
fore the latter part of this section n aking tates tail by
implication create a life estate with remain! over, and
therefore were converted into a fee by the acts '- HB1, this
section. The following cases are illusti >omson v.
McDonald, 2 Ga. 116-123; Carlton v. P; 495, 498;
Cook v. Walker, 15 Ga. 457, 465; Hollifield « ^, 17 Ga.
280; Gray v. Gray, 20 Ga. 804; Hose v Ga. 424;
Brown v. Weaver, 28 Ga. 377; Pournel 29 Ga.
736; Walls v. Garrison, 33 Ga. 341; Lofton v vehison,
80 Ga. 391, 7 S. E. 322; Hertz v. Abra 0 Ga. 707-
728, 36 S. E. 409.
The words "in case should die withoi ■ her
body," do not mean an heir living at the ath ;
but a general and indefinite failure of : hen-
[ 1016
3662
ESTATES AND RIGHTS ATTACHED THERETO
§ 3662
ever it shall happen, sooner or later, without reference to
any particular time or any particular event. And such at-
tempted disposition of property, inasmuch as it would tie
it up for generations and lead to a perpetuity— vests the
absolute fee in, the first taker. Hollifield v. Stell, 17 Ga.
280, 288.
J. gives to his daughter C, to her use, and the lawful
heirs of her body forever; if she should die without leaving
a lawful heir of her body, then the property to revert back
to the estate, and, it was held that under the Act of 1821.
the daughter took an absolute fee in the property. Hose v.
King, 24 Ga. 424.
Cases Decided Since Act of 1854 (§ 3662).— There is a class
of cases which have been decided since the act of 1854 (§
3662) which are identical in principal with the cases in the
three preceding paragraphs, but by operation of the act of
1854 (those decided since the codification of the act at §
3662 become life estates with remainder over; see ante, Edi-
tor's Note under "General Considerations," I) are made
either determinable fees or life estates, depending upon
whether decided under the provisions of the section or the
act before the codification. The following cases are illus-
trations: Gibson v. Hardaway, 68 Ga. 370; Daniel v. Daniel,
102 Ga. 181, 28 S. E. 167; Chewning v. Shumate, 106 Ga. 751,
32 S. E. 544; Hertz v. Abrahams, 110 Ga. 707-728, 36 S. E-
409.
Life Estate to A, Remainder to Children Does Not Cre-
ate.— An estate to B. for life, remainder to his children, if
any, but if none, then to R., can not possibly be made an
estate-tail, for the term "children" does not describe any
such class. In its proper sense, it includes only the next
generation to B. and to make it include more, there must
be something in the will to show that it is used in a
broader sense. The persons who take under the descrip-
tion of children, must all be in life at the death of B.
The conveyance exhausts itself on a single generation,
and creates nothing which bears a resemblance to an
estate-tail. An estate tail by implication can arise only
in cases of the absence of an expressed intention. Burton v.
Black, 30 Ga. 638, 641; Tennell v. Ford, 30 Ga. 707.
Where a limitation is to a parent for life, and to his chil-
dren by way of remainder, there seems to be no ground,
whether there are children or not, lor holding the parent to
be a tenant in tail. Gaboury v. McGovern, 74 Ga. 133, 144.
See § 3660.
§ 3662. (§ 3086.) Remote limitations,— All lim-
itations over after the death of the first taker,
upon his dying without heirs, or dying without
issue, or d}dng without leaving heirs or issue, or
on failure of issue, or other and equivalent terms,
shall be construed to mean a failure of heirs or
issue at the time of the death of the first taker,
and shall convey the estate in the manner pre-
scribed in the preceding section. Acts 1853-4,
p. 72.
Cross References. — For a fuller tieatment of the subject,
see 9 Cum. Dig. 1031 et seq. ; 11 Enc. Dig. 2, 212 et
seq. ; and authorities there cited.
Editor's Note. — This section was enacted in 1854 (Acts
1853-4, p. 72). It was possibly intended to make a rule in
a class of cases much confused at common law and in the
decisions of this State (See Atwell v. Barney, Dud. 207;
Edmondson v. Dyson, 2 Ga. 307; Wiley v. Smith, 3 Ga. 551;
Carlton v. Price, i0 Ga. 495, 498.)
Prior to this act a limitation over upon failure of any
of the enumerated classes after the death of the first taker
was held to be a limitation upon an indefinite failure of issue
and hence void for remoteness under the principle codified in
§ 3678. This act limited the limitation upon a definite
failure, i. e. a failure at the time of the death of the first
taker, making it impossible to be a limitation too remote.
The act also performed another important function. These
expressions being construed to. refer to an indefinite failure
of issue at common law, they also created estates tail by
inference or implication (defeasible upon dying without is-
sue) under the English construction of the Statute De
Bonis where refering to lineal heirs or issue. Now our
courts construed the Acts of 1821 (which abolished estates
tail) to include these estates tail by implication (as pointed
out in the Editor's Note to § 3661) and converted them
into fee simple estates. (See Robinson v. McDonald, 2 Ga.
116). When the expressions were changed to be a definite
failure of issue, they could no longer be estates tail by im-
plication and thus were taken out of the harsh rule of that
act. (See Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322.)
The act before codification did not provide what estate
was created in the first taker or the remainderman under
it, however it was generally held to create a defeasible fee.
But when codified, the clause "shall convey the estate in the
manner prescribed in the preceding section" was added so
that now in such cases the first taker takes a life estate,
the children or their descendants, or in case of failure, the
beneficiary named by the grantor, take the remainder.
Therefore, this section protects the intention of testators
and grantors from the remote limitation rule of § 3678 and
the Act of 1821 as it stood prior to the codification. See
the Editor's Notes to §§ 3660, 3661, 3677, 3678.
Origin and Effect of Section. — This section is almost a
literal reproduction of the act of February, 1854, (acts of
1853-4, p. 72) requiring that certain phrases, or any terms
equivalent thereto, in limitations over, be construed to im-
port always a definite, and not an indefinite, failure of
heirs or issue — a failure at the death of the first taker. The
conclusion of the section providing that such limitations
shall convey the estate in the manner prescribed in § 3661,
is new matter, the act of 1854 being silent as to where the
estate shall go. Ewing v. Shropshire, 80 Ga. 374, 379, 7 S.
E. 554.
Same — Mischief of Old Law. — "The old law was, that a
devise over on failure of issue should be construed an in-
definite failure. The mischief was, that by this technical,
artificial, and unreasonable rule men's intentions were con-
tinually frustrated and legatees deprived of what was justly
theirs." The remedy was to cut up by the roots the ru'e
referred to and the legislature used as broad words as
they could find to do it.
This section swept away at one blow all the mass of legal
lore on limitations and perpetuities. Forman v. Troup, 30
Ga. 496, 498; Gray v. Gray, 20 Ga. 804, 831.
Same — On Implied Estates Tail. — The act of 1854 is not a
declaratory statute of any former law, and it converted
into a defeasible fee what before the act was an estate tail
by implication, see also Worrill v. Wright, 25 Ga. 657, 659;
Hertz v. Abrahams, 110 Ga. 707, 723, 36 S. E. 409.
Same — Method of Determining Implied Estates Tail. —
Whether words in a will made by a testator who died be-
fore the act of February 17, 1854, create an estate tail, is
to be controlled by the decisions of the English courts
construing such or similar words in devises of real prop-
erty in connection with the statute de donis conditionalibus.
Hertz v. Abrahams, 110 Ga. 707, 36 S. E. 409.
Effect Upon Rule in Shelley's Case. — The effect of this
section is the vertical abolition of the rule in Shelley's case
as to limitations over in conveyances. This abolition re-
sults only incidentally from the change in the rules of con-
struction which previously obtained; so that now the
words of limitation enumerated are made words of purchase
and the children take from the grantor or devisor as pur-
chasers rather than from the devisee or grantee by inherit-
ance. Smith v. Collins, 90 Ga. 411, 412, 17 S. E. 1013.
Equivalent Terms to Those Enumerated. — "It is quibbling
to say that 'lineal heirs' is not an equivalent term to 'is-
sue.' The mischief in both cases is the same, and the samp
remedy applies." Forman v. Troup, 30 Ga. 496, 499.
Estates Tail by Implication Illegal Prior to Section. — If
estates tail by implication were not included in the statute
de donis, the limitations over in such estates were always
made upon an indefinite failure of issue, which of itself de-
feats the claim of the executory devisees, on the ground
that such devise to them was void for remoteness. Hertz
v. Abrahams, 110 Ga. 707, 723, 36 S. E. 409.
Operation of Section Upon Facts — Where Life Estate was
Taken. — A deed from grantor conveying property to gran-
tee and the heirs of her body during grantor's life and the
life of grantee, and, in case grantee has no heirs, certain
remainders to named parties, is kept from being an estate
tail by this section and gives her a life estate during life
of herself and husband; and having had no children, the re-
mainder goes as provided. Fulcher v. Mixon, 55 Ga. 72.
A devise to X "for his life with remainder in fee to his
surviving issue, if any; and if none then to the heirs" of
Y, created a life estate in X with a contingent remainder
in his heirs which accords with this section. Wright v.
Hill, 140 Ga. 554, 79 S. E. 546.
In a devise to X. for life with remainder to his children or
their descendants if dead, the limitation was not too remote.
While this would have been the result without this sec-
tion. Nussbaum v. Evans, 71 Ga. 753, 757.
There is no doubt that the testator did not intend an in-
definite failure of issue where he devised land for life to
his children "with the remainder to devisee's children or the
issue of such children as might be dead." But if there
were doubt, this section would remove it. Nussbaun v.
Evans, 71 Ga. 753, 757.
Same — Where Fee Determinable Was Taken. — A will de-
vising to T. to hold the same to his heirs, executors, and
[ 1017 ]
§ 3663
ESTATES FOR LIFE
§ 3666
assigns forever, except should he die without lineal heirs to
go to the children of X, or the survivors, refers to a definite
failure of issue "tmder the acts of 1854, creates a fee simple
determinable upon death without lineal descendants; pass-
ing in such case to the children of X., rather than creating
a fee tail and hence a fee simple in T., under § 3661. For-
man v. Troup, 30 Ga. 496. See discussion in Burton v.
Black, 30 Ga. 638, 643.
A will to S in fee with a codicil providing that it should
go to X if S died without heirs of body conveyed a de-
terminable fee to S because the words "without heirs cf
body" are definite words of issue under this section. Not-
tingham v. McKelvey, 149 Ga. 463, 100 S. E. 371.
Since our act of February 17, 1854, a conveyance in re-
mainder to the grantee and her heirs from her body with
a limitation over and equivalent terms in limitations over,
which theretofore meant an indefinite failure of issue, are
defined to mean a definite failure of issue. The legal ef-
fect of this m a case like the one at bar, where the named
grantee in remainder had no children, is to change the
estate under the preceding clause, and give the grantee a
qualified or determinable fee, which is divested upon her
death without leaving children. Shealy v. Wammock, 115
Ga. 913, 914, 42 S. F. 239. See Kenneth v. Hale, 128 Ga.
485, 495, 57 S. F- 761; Davis v. Hollingsworth, 113 Ga. 210,
38 S. F. 827; Greer v. Pate, 85 Ga. 552, 11 S. E. 869. See
note to § 3658.
Cases Prior to Section.— "Before the acts of 1854 and the
code, a devise to A for life, and at his death to his heirs,
heirs of the body, lineal heirs, lawful heirs, issue, or words of
similar import, unexplained, were held to be words of limi-
tation on an indefinite failure of issue, falling within both
the rule in Wild's case and the rule in Shelley's case,
especially the latter, and gave to A, the first taker, the
fee. Cook v. Walker, 15 Ga. 457, 465; Wilkerson v. Clark,
80 Ga. 367, 372-3, 7 S. F. 319;" Crawley v. Kendrick, 122
Ga. 183, 185, 50 S. E. 41.
A devise to X and at her death to the heirs of her body
created an expressed estate tail in Childers v. Childers, 21
Ga. 377, the court holding that the words "at her death"
did not vary the technical meaning of "the heirs of her
body." But this was before the passage of the act of 1854
(§ 3662) when words importing an indefinite failure of
issue made the grant void for remoteness. Megahee v.
Hatcher, 146 Ga. 498, 501, 91 S. E- 677.
At common law a devise to A, and, in case of his death
without issue, to B, was a devise limited upon an indefinite
failure of issue; which, under the English rules of interpre-
tation, created an estate tail by implication under the
statute de donis. An executory devise which was limited
upon words importing an indefinite failure of issue of the
first taker was void for remoteness. Hertz v. Abrahams',
110 Ga. 707, 36 S. E. 409.
CHAPTER 2.
Of Estates for Life.
§ 3663. (§ 3087.) What is.— An estate for life
may be either for the life of the tenant, or of
some other person or persons.
A devise to "Z for life for a home for herself and H"
passes a life estate to Z but does not give H a life estate.
Holland v. Zeigler, 135 Ga. 512, 69 S. F- 824.
Where estates for life under this section and estates in
remainder under § 3674, are created by the same grant in the
same land in favor of different persons, the possession of
the life-tenant is not adverse to the estate in remainder.
Ayer v. Chapman, 146 Ga. 608, 613, 91 S. F. 548.
§ 3664. (§ 3088.) How created. — An estate for
life may be created by deed or will, or express
agreement of the parties, or by the operation of
law; it can not be created in such property as is
destroyed in the use.
Cross References. — As to creation of fee by failing to
mention his estate see note to § 3659.
As to life estate with added power of disposition see note
to § 3659. As to a devise to one and his children, see note
to § 3661. As to when words formerly creating a fee tail
create a life estate under code, see note to §§ 3659-3662.
As to an estate expressly limited to a life estate being
enlarged unto fee by contraction, see note to § 3659.
How Life Estate Created. — "A life estate is created by
devise, deed, or operation of law. Thus a gift by deed or
devise of a parent to a child of a lot of land during the lite
of such child, remainder to the child or children of sucli
child, carves out a life estate for the child of donor or de-
visor." Dickinson v. Jones, 36 Ga. 97, 103.
Agreement for Dower Created Life Estate. — The effect
of the family agreement relative to life portion reserved
for dower was to give the widow a life estate. Allen v.
Lindsey. 139 Ga. 648, 77 S. F. 1054.
"A life-estate is created by law where dower, or one-
third of the land for life, is assigned to the widow. AH
estates for life, however created, are of the same duration,
having the same rights, privileges, and incidents, and are
subject to the same restrictions in their enjoyment."
Dickinson v. Jones, 36 Ga. 97, 103.
Marriage Settlement Creating Life Estate. — A husband
was given a life estate in slaves by a marriage settlement
giving the use. Lowe v. Morris, 13 Ga. 147, 165.
Life Estate May Be Created in Money. — A life-estate may
be created in money, and § 2253 [Code of 1910, § 3664, declar-
ing that an estate for life can not be created in such prop-
erty as is destroyed in the use] does not allude to money,
but to such things as perish with the usage. See also,
Chisholm v. Lee, 53 Ga. 612; Barmore v. Gilbert, 151 Ga.
260, 263, 106 S. F- 269/
May Be Created in Live Stock. — There can be no doubt
but that a life estate may be created in live stock, it being
property not strictly consumable in the use. Leonard v.
Owen, 93 Ga. 678, 680, 20 S. E- 65.
§ 3665. (§ 3089.) Estates during widowhood,
etc. — Estates which may extend during life, but
must terminate at death, so long as they exist
are deemed life-estates; such are estates during
widowhood.
As to estates during widowhood, see note to § 3684.
Where the widow was given a life estate only during
widowhood she took a life estate where she did not re-
marry. Lallerstedt v. Jennings, 23 Ga. 571.
A will giving property to wife "during lifetime or widow-
hood to give to our children" "created an estate for life or
during widowhood in wife. Glore v. Scroggins, 124 Ga.
922, 53 S. E. 690. See also Fields v. Bush, 94 Ga. 664, 21 S.
E. 827; Doyal v. Smith, 28 Ga. 262.
§ 3666. (§ 3090.) Rights and liabilities of ten-
ant for life. — The tenant for life is entitled to the
full use and enjoyment of the property, so that
in such use he exercises the ordinary care of a
prudent man for its preservation and protection,
and commits no acts tending to the permanent
injury of the person entitled in remainder or
reversion. For the want of such care, and the
willful commission of such acts, he forfeits his
interest to the remainderman, if he elects to
claim immediate possession.
I. Origin and General Consideration.
II. Rights and Liabilities of Life Tenants.
TIL Rights and Liabilities of Remaindermen.
Cross References.
As to protection of property from removal from state by
life tenant, see § 5459 et seq. As to requiring by quia timit
a bond of life tenant for forthcoming of property at the
end' of a tenancy, see §§ 672, 5459 et seq., and notes. As to
right of tenant in estate for years, see § 3687. As to waste
by life tenant, see 12 Enc. Dig. 766 et seq. ; 11 Cum. Dig.
468 et seq.
I. ORIGIN AND GENERAL CONSIDERATION.
Origin of Section. — "This section was included in the
Code of 1863 (§ 2235), which was regularly adopted by the
legislature, and also included in the several subsequent
codes, some of which have likewise been adopted by the
legislature; and consequently it has all the binding effect
of a statute. Central of Georgia Ry. Co. v. State, 104 Ga.
831, 31 S. E. 531, 42 L. R. A. 518." Lee v. Rogers, 151
Ga. 838, 842, 108 S. F. 371.
Same — Adoption of Statute of Gloucester. — In Dickinson
v. Jones, 36 Ga. 97, a case of injunction to restrain threat-
ened waste, it was assumed that the statute of Gloucester
was of full force in Georgia ; but in Woodward v. Gates, 38
Ga. 205, 212, it was pointed out that the apparent holding
in the Dickinson case was obiter, no question of forfeiture
being there involved, and the true rule in Woodward v.
Gates was declared to be that the effect of the adoption
of the code of 1863 was, that, "in case of waste, the tenant
for life shall forfeit his interest to the remainderman, if he
elects to take immediate possession. But the rule of the
[ 1018 ]
§ 3666
ESTATES FOR LIFE
§ 3666
statute of Gloucester as to treble damages is not still
adopted." And this decision was construed and followed in
Belt v. Simpkins, 113 Ga. 894, 39 S. E- 430, and Roby v.
Newton, 121 Ga. 679, 681, 49 S. E- 694. It appears, therefore,
that the present statute is declaratory, and at the same
time restrictive, of the common law. Brown v. Martin, 137
Ga. 338, 73 S. E. 495.
We adopt and recognize the principles of the Common
Law, including the Statute of Gloucester, so far as the same
make the tenant in dower liable lor waste committed; but
reject the harsh and penal remedy, provided by that Stat-
ute. Parker v. Chambliss, 12 Ga. 235, 238.
Strict Construction. — Since forfeitures are not favored by
the law, this section should be strictly construed, as is
criminal law. Roby v. Newton, 121 Ga. 679, 682, 49 S. E-
694.
Provisions of Instrument. — "In applying this statute re-
gard must be had for the provisions of the instrument
creating the life-estate and the nature of the property in
which the life-estate was given, and the use to which it
was put at the time the will was executed and when it went
into effect. If a testator, having nothing but a turpentine
farm which was a going concern, bequeathed that to his wife
during widowhood, it could hardly be said that the testator
intended that she should take nothing under the will; yet
that would be the effect if the trees on the farm could not
be worked at all for turpentine purposes." Lee v. Rogers,
151 Ga. 838, .843, 108 S. E. 371.
Construction of "and" and "Wilful." — The word "and"
should not be read "or" in "for the want of such care and
the wilful commission of such acts;" nor should the word
"wilful" be construed to mean simply intentional rather
than malicious or wanton, for a statute which imposes a
forfeiture should be strictly construed. This is especially
true when by the terms of this section as it now is, it takes
a concurrence of voluntary and permissive waste while by
the change it would take only one. Roby v. Newton, 121
Ga. 679, 683, 49 S. 'E. 694.
II. RIGHTS AND LIABILITIES OF LIFE TENANTS.
Life Tenant's Rights — No Distinction between Realty and
Personalty. — A beneficiary is as much entitled to the pos-
session of the estate devised for life as that devised in fee,
if the will does not give possession to the executors until
her death. A tenant for life is entitled to the full use and
enjoyment of the property under this section. In this res-
pect there is no difference between realty and personalty.
Thomas v. Owens, 131 Ga. 248, 256, 62 S. E. 218.
Where a next friend recovers a remainder in suit for
minors, the payment of his lien for reimbursement can not
interfere with the enjoyment of the life estate. Daniel v.
Powell, 29 Ga. 730.
Same — Of Dowress. — The dowress being a tenant for life,
she holds her estate with all the privileges of such a tenant,
and, unless otherwise provided, subject to all the liabilities
of tenants of that character. See in this connection, Rusk
v. Hill, 121 Ga. 379, 49 S. E. 261; Parker v. Chambliss, 12
Ga. 235, 238; Roby v. Newton, 121 Ga.' 679, 681, 49 S. E. 694.
Same— Recovery of Possession from Trustee If a Court
of Equity will put the tenant for life in the personal pos-
session and occupation of property, if it be beneficial or
requisite for its due enjoyment, as it undoubtedly will,
much more will it do that which asks no surrender of the
corpus; which involves the trustee in no responsibility, and
which can endanger the rights and interests of no one.
Williamson v. Wilkins, 14 Ga. 416, 422.
Liability of Life Tenant for Waste — This section does not
distinctly declare that a tenant for life is liable for actual
waste, or will be enjoined from committing threatened
waste, but it has been held since the code that such is the
law. Dickinson v. Jones, 36 Ga. 97; Smith v. Smith, 105 Ga.
106, 31 S. E. 135; Kollock v. Webb, 113 Ga. 762, 39 S. E.
339; Belt v. Simpkins, 113 Ga. 894, 39 S. E- 430; Roby v.
Newton, 121 Ga. 679, 681, 49 S. E- 694. See also, Gleaton
v. Aultman, 150 Ga. 768, 105 S. E. 445.
Same — Tenant in Dower — Remedy Against Her. — In
Parker v. Chambliss, 12 Ga. 235, it was held: "In this
State, a tenant in dower is liable for waste committed on
the estate. The remedy against her is by action on the
case, in the nature of waste, to recover the actual damage
done to the estate; or by an injunction to restrain her from
committing waste, when necessary, on a proper case made."
"We therefore adopt and recognize the principles of the
common law, including the statute of Gloucester, so far as
to make the tenant in dower liable for waste committed;
but reject the harsh and penal remedy provided by that
statute." This decision was made in 1852. Brown v. Mai -
tin, 137 Ga. 338, 341, 73 S. E. 495.
In this State, a tenant in dower, is liable for waste com-
mitted on the estate, but she does not thereby forfeit her
estate, and treble damages as provided by the Statute of
Gloucester. The remedy against her is by an action on
the case, in the nature of waste, to recover the actual
damage done to the estate; or by an injunction to restrain
her from committing waste, when necessary, on a proper
case made. Parker v. Chambliss, 12 Ga. 235.
Same — Of Trespasser. — The estate of a life-tenant is not
impeachable by a destructive trespass of a stranger, which
the life-tenant neither licenses nor negligently suffers to
be done. Kehr v. Floyd & Co., 132 Ga. 626, 64 S. E. 673.
Same — Restrained from Future Wastes. — A tenant for life
who holds the estate without impeachment for waste is not
liable at law to a remainderman for waste committed,
though he may be restrained by a court of equity at the
instance of a remainderman from committing further acts
of waste in the future which are destructive of the in-
heritance, or are of a wanton and malicious nature. Belt
v. Simpkins, 113 Ga. 894, 39 S. E- 430. See also, Gleaton v.
Aultman, 150 Ga. 768, 105 S. E. 445.
Same — Permissive and Voluntary Wastes. — A liability
both for permissive and voluntary waste is imposed upon
the tenant for life; and all such tenants are liable to the
reversioner or remainderman for actual damages resulting
from waste of either character. Roby v. Newton, 121 Ga.
679, 682, 49 S. E. 694.
Same — Same — Necessity for Concurrence. — In the dissent-
ing opinion in Roby v. Newton, 121 Ga. 679, 49 S. E. 694, it
is said: "1 am unable to agree to the proposition announced
that there must be a concurrence of permissive and voluntary
waste before a forfeiture can result. The practical effect of
that construction will be that in hardly any instance could a
forfeiture result, no matter how great the waste or how
serious the consequences to the remainderman. For rare
indeed will be the case where the damage results from the
operation both of action and inaction at the same time.
Taking, for example, the case of a city lot with a house
thereon, I understand the ruling to involve the proposition
that if the life-tenant should permit the building to rot to
the ground, no forfeiture could be declared, because, while
the waste was permissive, it was not at the same time
voluntary." Grimm v. Grimm, 153 Ga. 655, 657, 113 S. E- 91.
Where a life -tenant who by the exercise of ordinary care
could keep the premises from falling into decay, and who
has the ability to do so both from the rents and profits of
the estate and otherwise, from some motive unfriendly to
the remainderman wilfully refuses to keep the premises in
reasonable repair, such act is just as much voluntary and
wilful waste as any affirmative act which would tend to
destroy the value of the improvements to the remainder-
men. Of course, if the life-tenant from poverty or inability
to keep the premises from falling in£o decay, allowed them
to get in such condition, such conduct would be merely
permissive, and would not be voluntary. Grimm v. Grimm,
153 Ga. 655, 658, 113 S. E. 91.
Same — Same — Same — Character of Voluntary Waste. —
The section in effect says that a forfeiture shall result
whenever the tenant is guilty of both permissive and volun-
tary waste, and voluntary waste of that character which is
committed wantonly and in such a way as to evidence an
utter disregard of the rights of those who are thereafter
to take. Roby v. Newton, 121 Ga. 679, 683, 49 S. E- 694;
Grimm v. Grimm, 153 Ga. 655, 113 S. E- 91.
Same — Same — Sufficiency of Petition. — Where a petition
sets out both classes of waste as having been committed,
and prays for forfeiture and immediate possession in the
remainderman, such petition is sufficient to withstand a
general demurrer. Grimm v. Grimm, 153 Ga. 655, 113 S.
E. 91.
Same— Where Right Reserved.— The clear purpose of the
grantor in reserving right to sell timber was to reserve to
himself greater rights than those which inhere in a life-
tenant as to the timber on the lands from which such estate
is carved and to escape the perils of forfeiture of his life-
estate under this section by a sale of the timber. Simp-
son v. Powell & Co., 158 Ga. 516, 123 S. E. 741.
What Amounts to Waste — Working for Turpentine. — It
is a question of fact whether the working of trees for
turpentine purposes by a tenant for life is so injurious to
the trees as will be prohibited at the instance of a person
entitled in reversion. Lee v. Rogers, 151 Ga. 838, 108 S. E-
371.
A tenant holding under a devise of land "during widow-
hood" has the right to use the land and pine trees grow-
ing thereon, by hacking and otherwise working the trees
for turpentine purposes, as against a person entitled in re-
version, where prior to his death the testator used the land
and trees for such purposes, without being liable for waste
under this section. Lee v. Rogers. 151 Ga. 838. 108 S E
371.
[ 1019 ]
§ 3666
ESTATES FOR LIFE
§ 366^
Same — Sale of Timber. — While a widow who has taken a
homestead in the land of her deceased husband is entitled
to a reasonable and proper use thereof and of the timber
thereon for the benefit of herself and the other beneficiaries
of the homestead, she can not under this section make a
sale of the standing timber on the land, when it appears
that the same will injure the value of the freehold and is
not essential to a legitimate use of the property for home-
stead purposes. Smith v. Smith, 105 Ga. 106, 31 S. E. 135.
Same — Common Law Waste. — See the list of common law
wastes enumerated in Dickinson v. Jones, 36 Ga. 97, 104.
Test for Determining Amount of Waste.— In determining
what amounts to waste, under this section, regard must be
had to the condition of the premises, and the inquiry should
be, did good husbandry, considered with reference to the
custom of the country, require the felling of the trees, and
were the acts such as a judicious, prudent owner of the
inheritance would have committed. Woodward v. Gates, 38
Ga. 205, 214.
Failure of Life Tenant to Pay Burdens Imposed by Law.
— A neglect to pay the burdens imposed by law upon the
property during the term would be a want of such ordi-
nary care as a prudent person should exercise for its pro-
tection and preservation, and would tend to divest the title
to the fee by exposing it, or a portion of it, to sale, to raise
the taxes levied on it. The life tenant has not the right to
expect the remainderman to pay part of taxes. Austell v.
Swann, 74 Ga. 278, 281. See § 1018 and note.
Taxes are chargeable to the tenant for life if they ac-
crued while she lived and was entitled to the income. Mc-
Cook v. Harp, 81 Ga. 229, 7 S. E- 174.
Same — Where Exempted by Devisor. — While the will may
create a life estate in the widow and unmarried children
of testator, yet, by the use of the words, "his wife and un-
married children be permitted to occupy the same, free of
rent or other charges, during her widowhood; at the death
or marriage of his wife," etc., shows that testator intended
to create a quasi tenancy at sufferance or will and she is
not liable for the taxes. Griffin v. Fleming, 72 Ga. 697,
703.
III. RIGHTS AND LIABILITIES OF REMAINDERMEN.
Remainderman's Rights — Limited to Preservation of
Corpus. — "As was said in Bowman v. Long, 26 Ga. 146, 'In
a life-estate the tenant is entitled to have the possession of
the property for his own enjoyment; and all that the re-
mainderman can require is that the "corpus" of the prop-
erty shall be kept in preservation, to be delivered to him
on the termination of the life-estate. * * * Of course, this
rule must be subordinate to the rule that the corpus is to
be so kept that it shall be preserved for delivery to the
remainderman, in the termination of the life-estate.' "
Thomas v. Owens, 131 Ga. 248, 256, 62 S. E. 218.
Same — To Bring Action.— "No matter what may be the
character of the waste committed, no one interested in the
property has a right to call such a tenant into a court of
law on account of his conduct." Lee v. Rogers, 151 Ga.
838, 843, 108 S. E. 371.
Where a deed gives to X for life then to S, and if S. die
before X, or after X without issue, then to P., P has such
an interest in the remainder as to restrain X from waste.
Griswold v. Greer, 18 Ga. 545.
Same — To Recover Premises. — Remaindermen have no
right to recover premises until expiration of life estate.
Fleming & Co. v. Ray, 86 Ga. 533, 12 S. E. 944; McCook v.
Harp, 81 Ga. 229, 7 S. E- 174.
Same — Same — Voluntary and Permissive Waste. —
Under this section a remainderman is not entitled to claim
immediate possession as a result of a forfeiture of the in-
terest of the tenant for life, unless it appears that there
has been both permissive and voluntary waste by the ten-
ant, or one for whose conduct he is responsible; and it
must also appear that the voluntary waste was committed
wantonly and in a manner evidencing an utter disregard
of the rights of the next taker. Roby v. Newton, 121 Ga.
679, 49 S. E- 694. See ante "Rights and Liabilities of Life
Tenant," II.
Action by Remainderman— Venue.— An action under this
section by a remainderman against a life-tenant to have the
estate of the latter declared forfeited and the remainder-
man put in possession, because of waste committed by the
tenant, is a suit "respecting titles to land," and the venue
thereof is the county in which the land involved is located.
Brown v. Martin, 137 Ga. 338, 73 S. E. 495. See 12 Enc.
Dig. 768.
Same — Necessary Parties. — In a suit by remaindermen,
to forfeit the estate of the life-tenant for waste, the life-
tenant is a necessary party. Kehr v. Floyd & Co., 132 Ga.
626, 64 S. E. 673.
§ 3667. (§ 3091.) Increase.— The natural in-
crease of the property belongs to the tenant for
life. Any extraordinary accumulation of the
corpus — such as issue of new stock upon the
share of an incorporated or joint-stock company
— attaches to the corpus and goes with it to the
remainderman.
Cross References. — See 11 Enc. Dig. 877, 9 Cum. Dig.
1026. For a definition of personalty, see § 3646. As to in-
crease of animals, see § 3651. As to income of deviser and
legacies, see § 3903. As to rights of administrator, see §
3933.
Executor Can Not Take Natural Increase. — The executor
has no right to sell the natural increase of the cattle and
hogs, but that they belonged absolutely to the widow, and
passed, at her death, to her representatives. Leonard v.
Owen, 93 Ga. 678, 680, 20 S. E. 65.
Keeping Stock to Original Number as Condition. — Under
this section, the natural increase belonged to the life-tenant,
without condition that where a life- tenant takes the increase
of animals, there is a corresponding obligation to keep up
the stock to its original number. Leonard v. Owen, 93 Ga.
678, 680, 20 S. E. 65.
Section Taken from Mass. Rule. — When this section v/as
codified, in view of the older English cases and of such de-
cisions as had then been made in America, one of these
lines of authority had to be selected as containing the cor-
rect rule. The codifiers in substance selected the Massa-
chusetts rule as found in Gibbons v. Mahon, 136 U. S. 549,
10 S. Ct. 1057, 34 L. Ed. 525; and of the Supreme Court
of Massachusetts in Minot v. Paine, 99 Mass. 101, 96 Am.
D. 705; McHenry v. McHenry, 152 Ga. 105, 116, 108 S. E-
522.
Construction of "Natural Increase" — Ordinary and Extra-
ordinary Accumulations. — "We take it that the words,
'natural increase' are used in antithesis to the subsequent
words, 'extraordinary accumulation,' and they mean the
ordinary accumulation of the property, that is, in case of
stock, the ordinary increase of its value by larger dividends
declared, whereby it may be worth much more in the in-
come of the holder from it, goes to the life tenant; but- any
extraordinary increase or accumulated, by donation, or
grant from the state of lands or other outside property, will
go to the remaindermen. That property thus accumulated,
not from the ordinary use of the means of the company,
but from extraordinary outside accumulations attaching to
the former means or corpus of the company and adding to
that corpus or those means, assimilates with that, becomes
part of it, makes it larger and productive of more fruit,
and can not be cut off by the life tenant, but must stand
tied to the corpus, and with the corpus pass to the re-
maindermen." Millen v. Guerrard, 67 Ga. 284, 291.
The word "increase" does not mean any increase of value
of the corpus, but the illustration given will show that such
is not the case. Jackson v. Maddox, 136 Ga. 31, 33, 70 S.
E. 865.
Same — Same — Slavery Provision in Old Code. — "The
original code was adopted by legislative enactment, and
later codes have also been adopted, containing the language
quoted. An additional indication that the use of the words
'natural increase' was in the sense above mentioned occurs
in the section as codified in the original code. At the time
of its adoption slaves were owned in this State as property.
The first sentence of the section as originally codified read
as follows: 'The natural increase of the property, unless it
be a slave, belongs to the tenant for life.' Code (1863), §
2236. Clearly this exception to the increase of a slave
shows that the word was used in the fjense of the issue or
offspring of such slave." Jackson v. Maddox, 136 Ga. 31,
34, 70 S. E. 865.
Same — Same — Dividends as Natural Incretase. — Dividends
whether in cash or bonds or certificates of indebtedness,
are the natural increase of stock, and not an accumulation
of the corpus; nor is this affected by the fact that no
dividends are declared on the stock for some time, and
when they are declared the amount is unusually large.
Therefore, such dividends belong to the life tenant, and not
to the remaindermen. Millen v. Guerrard, 67 Ga. 284.
As applied to corporate stock "the natural increase"
means dividends. Clearly it can not mean the appreciation
in value of the corpus of the property. Jackson v. Mad-
dox, 136 Ga. 31, 33, 70 S. E. 865.
"If a dividend is declared as such, whether in cash or
certificates of indebtedness, such dividend represents no
permanent interest in the corporate property or assets, but
something to be paid or delivered to the shareholder as be-
ing the dividend upon his share." Jackson v. Maddox, 136
Ga. 31, 34, 70 S. E. 865.
[ 1020 ]
5 3668
ESTATES FOR LIFE
§ 3671
The words, "such as issue of new stock upon the share of
an incorporated or joint stock company" are a mere illustra-
tion of extraordinary accumulations. Miilen v. Guerrard, 67
Ga. 284, 292.
If, the issue of new stock, is not an ordinary increase, it
s not a natural increase. Miilen v. Guerrard, 67 Ga. 284;
Jackson v. Maddox, 136 Ga. 31, 35, 70 S. E. 865.
"What is meant by an extraordinary accumulation of the
;orpus is illustrated by the words, 'such as an issue of new
stock upon the shares of an incorporated or joint-stock
company.' Thus the codifiers distinctly selected the rule
:hat the issue of new stock upon shares of a corporation
instituted an extraordinary accumulation, and stated such
in issue as being a typical case to illustrate the meaning
5f the words, 'extraordinary accumulation,' as used by
:hem." Jackson v. Maddox, 136 Ga. 31, 34, 70 S. E. 865.
§ 3668. (§ 3092.) Emblements.— If the life-
estate be terminated not by the act of the tenant,
le and his legal representatives shall be entitled
o emblements, which are the profits of the crop
;owed by him during life, whether the plants be
innual or perennial.
Cross References.— See 5 Cum. Dig. 439; 5 Enc. Dig. 203.
\s to rights of tenants for years to emblements, see §
!688. As to rights of administrator, see § 3933. As to where
:he income of devises and legacies goes, see § 3903.
Origin of Section. — This section is not of common-law
:rigin, but is manifestly an adaptation, made by the com-
pilers of our code, of the statute of 14 and 15 Vict., c. 25.
Story v. Butt, 2 Ga. App. 119, 58 S. E. 388.
This section relating to the right of a tenant for life to
emblements, is merely declaratory of the common law. Story
9. Butt, 2 Ga. App. 119, 58 S. E. 388.
Reason for Rule. — Upon the principle that he that sows
n peace shall reap in peace, the tenant for life is always
entitled to emblements, because it was not known when he
sowed that the life would end before he reaped. Chappeil
/. Boyd, 56 Ga. 578, 583.
Right of Life Tenant's Executor. — Executor of tenant for
ife, whose estate is determined by the act of God between
he planting and severance of the crop, is entitled to the
profits of the crop. Thornton v. Burch, 20 Ga. 791.
Dowress' Husband's Rights. — Where a woman having a
lower estate re -married in 1856, and a portion of the land
was cultivated by her husband, and other portions by his
:enants, if she die after the crop was sown, the husband was
entitled to emblements, and the remaindermen could not
•ecover against him for the use of the dower land for that
jortion of the year which remained after the death of his
yife. King v. Whittle, 73 Ga. 482.
§ 3669. (§ 3093.) Rights erf renter from life-
:enant. — If the tenant for life Vents the land for
;he year, and dies, or the estate is otherwise ter-
ninated during the year, the tenant shall be en-
itled to the land for the term of the year, upon
:omplying with his contract with the tenant for
ife.
Life Tenant May Lease Estate — One who by will is made
:he devisee of a life-estate in the lands of the testator and
*iven full power of disposition to the end that an income
nay be derived for the support of himself and children,
nay lawfully execute a lease of reasonable duration upon
:he lands of the estate; and such a lease will not expire
ipon his death, even though it occur before the last year of
:he lease. See the case for history of section. Hines v. Mc-
Zombs, 2 Ga. App. 675, 58 S. E. 1124.
Same — Extends to End of Year. — Under this section a
power is conferred upon the tenant for life to represent the
whole estate to the extent of making a rent contract bind-
ing to the end of the year in which the death of such ten-
ant for life may occur. Story v. Butt, 2 Ga. App. 119, 58
S. E. 388.
Rights and Liabilities of Under Tenant. — The correlative
duty of the undertenant is to comply with his contract with
the life -tenant; and if he does so, he is not accountable to
the remainderman for any portion of the year's rent, though
the life-tenant die before the crops are sown. Story v. Butt,
2 Ga. App. 119, 58 S. E. 388.
Same — Payment to Life Tenant — Promissory Note as
Payment. — If the under-tenant pays the rent for the year
to the life-tenant, the payment is good against any claim
of the remainderman. If the life -tenant takes a negotiable
promissory note for the year's rent and . transfers it for
value to a third person, this is legally equivalent to pay-
ment so far as the rights between the under-tenant and
the remainderman are concerned. Butt v. Story, 5 Ga. App.
540, 63 S. E. 658.
Same — Same — Same — Rights of Holder — Rights of Re-
mainderman.— Under the provisions of this section, as con-
strued by this court in Story v. Butt, 2 Ga. App. 119, 58
S. E. 388, and Butt v. Story, 5 Ga. App. 540, 63 S. E. 658,
where a life-tenant rents land for the year, taking for the
rent a negotiable promissory note, and transfers it for
value to a third person, and dies during the year, and none
of the rent has accrued to the life-tenant and none has been
collected by him, the transferee of the rent note would
ordinarily have the right to collect the full amount of the
rent note from the undertenant. But where this rent note
is transferred by the life-tenant to secure the payment of
a debt which the life-tenant owes to the transferee, and the
life-tenant dies during the year and before any of the rent
has accrued to him, the holder of the note would ordinarily
have the right to recover from the undertenant the entire
amount due on it, accounting to the remainderman for any
excess in the amount of the rent note over the debt which
he holds against the life-tenant and which was secured by
the transfer of the note. Mitchell v. Rutherford, 9 Ga.
App. 722, 723, 72 S. E. 302.
Same — When Accountable to Remainderman. — If the life -
tenant rents out the land for the year and dies without col-
lecting the rent, and without doing anything to which the
law would give the effect of a collection of it, the under-
tenant is entitled to possess the premises to the end of the
year, but he is accountable to the remainderman for such a
proportion of the rent agreed to be paid as the period be-
tween the death of the life-tenant and the end of the year
bears to the whole year. The taking of a non-negotiable
note by the life-tenant, though it be assigned, is not equiva-
lent to collection of the rent. Butt v. Story, 5 Ga. App. 540,
63 S. E. 658.
§ 3670. (§ 3094.) By courtesy.— There is no
tenancy by courtesy in Georgia.
§ 3671. (§ 3095.) Of lands.— No forfeiture shall
result from a tenant for life selling the entire
estate in lands; the purchaser acquires only his
interest.
As to rights and liabilities of tenant for life, see § 3666
and note.
Section Same as Common Law. — This section is but a
legislative declaration of what was already the law. It is
true that at common law a life-tenant might, by feoffment,
fine or common recovery, forfeit his estate to him in re-
mainder; but a conveyance by lease and re-lease, or bar-
gain and sale, the principal mode of conveyance in America,
does not work a forfeiture. (Dissenting opinion by Walker,
J.) Doe v. Roe, 36 Ga. 199, 206.
A sale by the trustee and consent by the life-tenant was
not such an act by the tenant for life as, at common law,
amounted to a forfeiture, and it was error in the Court to
hold that, on the making of such a deed, a right of action,
based on the forfeiture, accrued to the remainderman, and
that the statute of limitations commenced to run. Baze-
more v. Davis, 48 Ga. 339.
Same — Remaindermen Not Affected. — Tenant for life did
not forfeit his estate in the land by selling and conveying
the whole fee in 1835. Remainders were not affected, and
remaindermen could not enter upon the purchaser until the
death of the tenant for life. The dissenting opinion of
Walker, Judge, in Doe v. Roe, 36 Ga. 199, approved and
followed. Sanford v. Sanford, 55 Ga. 527.
Remainderman's Right to Interfere with Sale. — Where
the sheriff in attempting to sell the life estate of M under
execution is selling the fee, the remainderman can not in-
terfere because the life -tenant makes no forfeiture under
this section, and the purchaser buys no more than a life
estate. Stone v. Franklin, 89 Ga. 195, 196, 15 S. E. 47.
Interest Acquired Where Sold for Taxes. — "When prop-
erty is sold for taxes as the property of a tenant for life,
no more than the interest of the tenant for life passes, ur. •
less the sale is for the taxes en that specific property only.
This is so where the sale is by virtue alone of the tax
execution." Clower v. Fleming, 81 Ga. 247, 253, 7 S. E.
278.
Illustrations of Application. — The heirs having consented
to and acquiesced in the entry and occupation by the widow,
raising no question as to the mode or legality of assigning
and laying off her dower, they had no right to the possession
until after her death, inasmuch as, under this section no
forfeiture resulted by reason of her conveying the fee to
another. Wells v. Dillard, 93 Ga. 682, 20 S. E. 263.
The deed of L. which purports to convey a fee -simple
[ 1021 ]
§ 3672
ESTATES IN REMAINDER AND REVERSION
§ 3675
estate to the petitioner, passes only the title which L. had
under the terms of the will. A purchaser of the entire
estate from the life-tenant acquires only the interest of
such life-tenant. Satterfield v. Tate, 132 Ga. 256, 264, 64
S. E. 60.
If the agreement between the grantor and a first grantee
be treated as creating or leaving in grantor a life-estate, his
second deed might have conveyed that only, although it
may have purported to be a conveyance of the fee. Burt-
chael v. Byrd, 143 Ga. 31, 34, 84 S. E- 55.
If the life-tenant conveys a greater estate than she pos-
sessed, it would not work a forfeiture, as at common law.
Sanford v. Sanford, 55 Ga. 527-528; 2 Bl. Com. 274; 16 Cyc.
645 (5a). As there could be no entry and ouster against
the grantee of the life-tenant until the death of the life-
tenant. Howard v. Henderson, 142 Ga. 1, 5, 82 S. E- 292.
A trustee for a life tenant named in the will could not,
even under an order granted by a chancellor, sell and con-
vey any greater interest in the property which passed un-
der such a devise than the estate of the life-tenant therein.
Fleming v. Hughes, 99 Ga. 444, 27 S. E. 791.
§ 3672. (§ 3096.) Removal of personalty. — The
tenant for life, in personalty, can not remove it
be3'ond the jurisdiction of this State without the
consent of the remainderman. If he attempts to
do so fraudulently, he forfeits his interest; if not
fraudulently, the remainderman or reversioner
is entitled to the writ of ne exeat to restrain
him. Act 1830, Cobb, 527.
See 5 Enc. Dig. 204: 8 Enc. Dig. 556. As to ne exeat and
Quia Timet, see § 5459.
Construction of Act Upon Which Based. — The Act of
1830, (Cobb's New Digest, 527) upon which this section is
based, passed for the protection of the rights of remainder-
men and reversioners in personal property, should be
strictly construed, and its provisions fully complied with.
Wallace v. Duncan, 13 Ga. 41.
Bill Quia Timet to Require Bond. — Where life tenant and
purchaser removed slaves from state, a bill quia timet will
lie to make them give bond for the delivery of the prop-
erty with increase to the remaindermen. Riddle v. Kellum,
8 Ga. 374.
A ne exeat will be dissolved when there is other relief
more appropriate to the case. Hawthorn v. Kelly, 30 Ga.
965.
§ 3673. (§ 3097.) Bond of purchaser, etc. —
Where a life-estate is sold under process of law,
upon the demand of any one interested in re-
mainder, his agent or attorney, accompanied by
a statement under oath of his interest, it shall be
the duty of the officer making the sale to require
of the purchaser a bond in double the value of
the property, with good security, for the delivery
of the property to the persons entitled in re-
mainder, which bond shall be filed in the office
of the clerk of the superior court of the county
where the sale is made, and subject to be sued on
by any person interested in remainder. On fail-
ure to give such bond, the property shall be re-
sold at the risk of the purchaser, if notice of the
demand was given before he purchased. Act
1830, Cobb, 513.
CHAPTER 3.
Of Estates in Remainder and Reversion.
§ 3674. (§ 3098.) Definitions.— An estate in re-
mainder is one limited to be enjoyed after another
estate is determined, or at a time specified in the
future. An estate in reversion is the residue of
an estate, usually the fee left in the grantor and
his heirs after the determination of a particular
estate which he has granted out of it. The rights
of the reversioner are the same with those of a
vested remainderman in fee.
Cross References.— See 11 Enc. Dig. 189, 211; 9 Cum. Dig.
1030. As to right to possession, see note to § 3666. 1. For
treatment of various estates, see notes to § 3659-3662, 3664.
A remainder is the remnant of an estate, limited to arise
immediately on the determination of a precedent particular
estate; and it always creates a new estate in the remainder-
man. Booth v. Terrell, 16 Ga. 20.
Contingent Remainder on Estate. — Some courts and text
writers declare a contingent remainder not an estate, but
only a chance to have one; but whatever differences may
have heretofore existed between courts and text writers
upon this subject, this section has settled it by declaring
that a contingent remainder is an estate. McGowan v.
Eufburrow, 82 Ga. 523, 532, 9 S. E. 427.
A remainder in personalty may be created by deed, re-
serving a life-estate to the grantor or anyone else. Robin-
son v. Schly, 6 Ga. 515.
A limitation of a promissory note, in remainder, may be
made by deed or will. Broughton v. West, 8 Ga. 248.
Can Not Be Limited Over Upon Fee. — Whenever an es-
tate is given, either by deed or will, to a person, generally
or indefinitely, with the unlimited power of disposition an-
nexed, it invariably vests the absolute fee in the first
taker; and a remainder can not be limited over, upon such
an estate. Cook v. Walker, 21 Ga. 370; Cook v. Walker,
15 Ga. 457.
Necessary Estate to Sustain Remainder. — While under
this section no particular estate is necessary to sustain a
remainder, nevertheless an estate in remainder is but a
part of the whole title. This section defines an estate in
remainder as "one limited to be enjoyed after another es-
tate is determined, or at a time specified in the future.''
Torbit v. Jones, 145 Ga. 610, 613, 89 S. E. 696. ,
Number of Interests Where There is a Remainder. — "The
owners of the estate in possession have an interest in the |
land, as well as the owner of the remainder. Thus there
are at least two interests in every title where a part of the
title rests in remainder. A levy on one of these interests
should be sufficiently definite, either in express statement
or by reference, to define the interest seized." Torbit v.
Jones, 145 Ga. 610, 613, 89 S. E- 696.
Life Estate Under § 3663 Not Inconsistent with Re-
mainder.— Where estates for life under § 3663 and estates
in remainder under this section are created by the same
grant in the same land in favor of different persons, the
possession of the life-tenant is not adverse to the estate
in remainder; accordingly in such cases prescription will
not run against the remaindermen, based on the possession
of the life-tenant or his privy in estate, during the term of
the life-tenant. Ayer v. Chapman, 146 Ga. 608, 613, 91 S.
E. 548.
Illustration of Reversionary Interest. — If the grant had
been to the railroad company or its assigns "for railroad
purposes only," with no words of reverter or of limitation,
the deed would pass the fee. The phrase "for railroad pur-
poses only" would be merely a declaration of the purpose
for which the land conveyed was intended to be used. There
would be no reversion, because "an estate in reversion is
the residue of an estate, usually the fee left in the grantor
and his heirs after the determination of a particular estate
which he has granted out of it." But there are the super-
added words, "and for the time that they shall so use it."
The habendum clause was a conditional limitation, and the
land reverted to the grantor when the company abandoned
the right of way. Lawson v. Georgia, etc., Ry., Co., 142
Ga. 14, 16, 82 S. E. 233.
"The will not only creates the life-estate, but a contingent
remainder, the happening of which never took place, namely,
the leaving of children or issue of children by P. E. Kemp
at his death. And as the contingency on which it was based
never happened, the remainder estate reverted to the estate
of the estator." Kemp v. Lewis, 147 Ga. 254, 257, 93 S. M
404.
A reversion is the return of an estate to the grantor and
his heirs, after the grant is over; a gratuitous permission,
by the owner to a third person, to use the chattel for a
specified time, the proprietary interest still continuing ir
the owner, is not a reversion. Booth v. Terrell, 16 Ga. 20.
§ 3675. (§ 3099.) No particular estate neces-
sary.— No particular estate being necessary tc
sustain a remainder under this Code, the defeai
of the particular estate for any cause does no'
destroy the remainder.
See 11 Enc. Dig. 189.
This section widely differs from the common law, am
wholly abrogates any defeat of remainders by destructioi
or defeat of the particular estate; and correspondingly, i
any doctrine of representation or quasi representation b}
life-tenant of remaindermen, so far as to bind remaindermei
by judgment against life -tenant, was established, it doe!
[ 1022 ]
§ 3676
ESTATES IN REMAINDER AND REVERSION
§ 3676
not exist under the code of Georgia. Brown v. Brown, 97
Ga. 531, 540, 25 S. E. 353.
Where an estate was left by will to support the family
until widow's death but widow elected to take dower, the
remainder was not accelerated by her part of life estate
ending for under this section a remainder will not fail for
want of a particular estate. Nor .did the estate stand as
if testator had died interstate for the defeat of a particular
estate does not destroy the remainder. Toombs v. Spratlin.
127 Ga. 766, 57 S. E. 59.
L. and his brother, N. each took a vested remainder in
the property bequeathed to M. for life, under this section
and this remainder vested in them when the will took ei-
fect at the death of the testator. Clanton v. Estes, 77 Ga.
352, 359, 1 S. E. 163.
§ 3676. (§ 3100.) Vested or contingent. — Re-
mainders are either vested or contingent. A
vested remainder is one limited to a certain per-
son at a certain time, or upon the happening of a
necessary event. A contingent remainder is one
limited to an uncertain person, or upon an event
which may or may not happen.
For further treatment of vested remainders, see 11 Enc.
Dig. 191-196, 9 Cum. Dig. 1011-1019; Contingent Remainders,
11 Enc Dig. 196-198; 9 Cum. Dig. 1019-1022.
Distinction between Vested and Contingent Remainders.
— The taking effect of a remainder in possession may be
uncertain, and yet be a vested remainder. The question,
whether it is a vested remainder, does not depend upon the
fact of the remaindermen outliving the life-tenant, but upon
their capacity to have taken, by any means which might
have determined the life estate. The present capacity, of
taking effect in possession, if the possession were to become
vacant, and not the certainty that the possession will be-
come vacant, before the estate limited in remainder de-
termines, universally distinguishes a vested remainder from
one that is contingent. Holcombe v. Tuffts, 7 Ga. 538, 546;
Olmstead v. Dunn, 72 Ga. 850, 860. See Robert v. Wadley,
156 Ga. 35, 37, 118 S. E. 664.
"Various tests have been suggested for determining
whether in a given case a future estate is a vested or a
contingent remainder. One of these tests is given by
Fearne in his work on Remainders, viz. : 'The present
capacity of taking effect in possession, if the possession
were to become vacant, * * * distinguishes a vested re-
mainder from one that is contingent.' " Schley v. William-
son, 153 Ga. 245, 255, 111 S. E. 917.
"An estate is vested when there is an immediate right
of enjoyment, or a present fixed right of future enjoyment.
It is the present capacity of taking effect in possession, if
the possession were to become vacant, that distinguishes
a vested from a contingent remainder." Wilbur v. Mc-
Nulty, 75 Ga. 458, 463.
In determining whether an estate be vested or contingent,
the first subject of enquiry is, whether it be limited to per-
sons in esse and ascertained, and stand unconnected with
any uncertain event; in which case the estate vests in-
stanter, notwithstanding that it be preceded by a particular
estate or estates to which it is postponed in point of usu-
fructuary enjoyment, or possession. Burch v. Burch, 23 Ga.
536, 548.
Law Favors Vested Remainders. — " 'The law favors
vested remainders, and it is an established rule that the
court never construes * * * (a remainder) to be contingent
when it can be taken to be vested.' Vickers v. Stone, 4
Ga. 461." Fields v. Lewis, 118 Ga. 573, 575, 45 S. E. 437.
Same — Words of Survivorship Refer to Death of Testator.
—A vested remainder is one limited to a certain person at
a certain time, or upon the happening of a certain event.
The law favors the vesting of remainders in all cases of
doubt, and in construing wills, words of survivorship will
refer to the death of the testator in order to vest re-
mainders, unless a manifest intention to the contrary ap-
pears. Olmstead v. Dunn, 72 Ga. 850, 863.
What Uncertainties Make Contingency. — The persons to
take in this case were certain and ascertained at the time
of the testator's death. The event on the happening of
which they were to vest was a necessary one. The un-
certainty as to the mere quantum of property to be pos-
sessed did not make the remainders contingent. They
were subject to be divested in whole or in part by the
widow's sale or disposal of the whole, or some part of the
property left by the testator. This contingency, however,
did not deprive the remainders of their character of being
vested. Cochran v. Groover, 156 Ga. 323, 332, 118 S. E. 865.
When Contingent Remainder Must Vest. — "Where the
remainder is limited to a person not in esse, or not as-
certained, the remainder is contingent. Sharman v. Jack-
son, 50 Ga. 224. Though a contingent remainder may be-
come vested, where persons answering the description ol
the remaindermen conic into being during the existence of
the particular estate, or by the time the remainder is to
vest (Ardis v. Printup, 39 Ga. 648; Kollock v. Webb, 113
Ga. 762, 39 S. E- 339), nevertheless where the remaindermen
are not in esse at the time of the making of the deed, nor
come into existence pending the precedent estate when the
remainder is to vest, the remainder can never thereafter
vest. A contingent remainder must vest on or before the
termination of the particular estate, or the happening of
the contingency which is to vest it, or it will be defeated."
Edwards v. Edwards, 147 Ga. 12, 92 S. E. 540.
Illustrations of Vested Remainders. — Where an estate
was given to X for life with remainder to Y if living, Y
took a vested remainder under this section subject to be
divested upon dying before the life tenant. McDonald v.
Taylor, 107 Ga. 43, 32 S. E. 879.
Here all the conditions for a vested remainder are met.
The estate is certain, the person or class of persons to
whom it is devised is certain, and the event fixing the time
when its enjoyment should commence is a necessary one.
Bull v. Walker, 71 Ga. 195, 203.
The uniform and established construction of the clause
"during life or widowhood" is, that the limitation over is
not contingent, but takes effect at all events upon the de-
termination of her estate, whether by marriage or death.
McGinnis v. Foster, 4 Ga. 377, 379.
An estate to X for life, then to her children by her pres-
ent husband, four of such children being in esse at the
time and another being born later, created under this sec-
tion a vested remainder in all of the children except the
unborn child, and a contingent remainder in it before birth,
but upon birth the remainder to the other children opened
to take in such a child. Fields v. Lewis, 118 Ga. 573, 45
S. E. 437.
A deed providing that, "at the death or marriage of F.
the property shall go to and vest in the child or children
of the said J then in life, and in case of the death of such
child during the life or widowhood of F. leaving issue alive,
such issue shall take in place of such child." This does not
constitute a vested remainder, because in a "vested re-
mainder there is some person in esse, known and ascer-
tained, who, by the will or deed creating the estate, is to
take and enjoy the estate upon the expiration of the exist-
ing particular estate, and whose right to such remainder no
contingency can defeat." Augusta v. Radcliffe, 66 Ga.
469, 472.
A will to X, .and Y during life or the period of remaining
single, then to S in fee, created a vested remainder in S
under this section. De Vane v. Young, 154 Ga. 832, 115 S.
E. 661.
Where a testator devised certain lands to his wife for
life, and after her death to his son for life, and after his
death to his children living at his death, in fee, the son
took a vested remainder estate, subject to be divested upon
his death before that of the first life tenant. Lufburrow v.
Koch, 75 Ga. 448.
An estate to X and Y for life and if Y should die with-
out marrying then to S, or if Y should marry one half to
S, created under this section a vested remainder in S.
Schley v. Williamson, 153 Ga. 245, 111 S. E. 917.
A devise to A for life with remainder to the children of
my brothers and sisters created a vested remainder in the
children living at testator's death, under this section and
the holding of Forster & McGennis, 4 Ga. 377, 385. Legwm
v. McRea, 79 Ga. 430, 4 S. E. 863.
Where one bequeaths property to his wife "during her
lifetime," and further provides that at her death it shall
belong to a named daughter and the heirs of her body, the
remainder is one limited to a certain person upon the hap-
pening of a necessary event, and such remainder is vested.
Pearson v. Cochran, 152 Ga. 276, 109 S. E. 498.
Property was settled upon the wife for life, remainder to
the husband for life, remainder to the heirs general of the
husband, the husband took a vested remainder in fee.
Varner v. Boynton, 46 Ga. 509.
Illustrations of Contingent Remainders. — A bequest to X
for life, then to Y., but if Y. die before X. leaving no chil-
dren, or after X. leaving none, to T, creates a contingent
remainder in Y., for her remainder is contingent upon leav-
ing heirs surviving if she die before X, irrespective of the
second condition. Griswold v. Greer, 18 Ga. 545.
Where S. deeded land to X. in trust for Y. and upon Y's
death to her children and if she die without children then
to X. in fee, X. took a contingent remainder under this
section, the remainder being limited upon an event which
may or may not happen. Morse v. Proper, 82 Ga. 13, 18, 8
S. E- 625.
[ 1023 ]
§ 3677
ESTATES IN REMAINDER AND REVERSION
§ 3677
A bequest to A. at the death of the wife of testator, or
when A. marries or becomes of age, is a contingent in-
terest, dependent for its transmission to A.'s representa-
tives, upon her being in life at the happenings of some one
of the named contingencies. If she dies before that time,
(as the legatee did in this case,) there is nothing in her to
pass to her administrator. Allen v. Whitaker, 34 Ga. 6.
§ 3677. (§ 3101.) Rights of heirs.— If the re-
mainderman dies before the time arrives for pos-
sessing his estate in remainder, his heirs are en-
titled to a vested-remainder interest, and to a
contingent-remainder interest when the contin-
gency is not as to the person but as to the event.
If the contingency be as to the person, and that
person be not in esse at the time when the con-
tingency happens, his heirs are not entitled.
Section 11 Enc. Dig. 191-208; 9 Cum. Dig. 1023. For con-
tingent and shifting trusts, see § 3734 and notes.
Editor's Note. — By § 3660 in a "limitation over" to
"heirs," "heirs of body," "lawful heirs," and "lineal heirs"
persons answering the description take as purchasers upon
the vesting of the estate. The term "limitation over" is
made to mean any estate in the same property to be en-
joyed' after the expiration of the first estate, whether by
succession or substitution. This seems to give such persons
a vested remainder. (See Ewing v. Shorpshire, 80 Ga. 374,
7 S. E. 554; Crawley v. Kendrick, 122 Ga. 183,) 50 S. E. 41.
Now it would seem to follow that if one of these re-
maindermen should die before the vesting of possession,
and there were no "descendants of deceased children," to
take under that section, the heirs of such remainderman
would take the vested interest under this section, inasmuch
as "If the remainderman dies, etc., his heirs are entitled to
a vested remainder." But if there were descendants of
deceased children in such a case it seems that the latter
part of § 3660 would apply to the exclusion of this section
and the other heirs of such deceased children could not
take.
It is pointed out in Crawley v. Kendrick, 122 Ga. 183, 50
S. E. 41, that § 3660 has no application to remainders to
children as a class, nor "to an expressed devise of a re-
mainder to children of a life tenant." That the law govern-
ing this has been fixed for centuries and vests the title
absolutely in the children in esse at the death of the testa-
tor (subject to open in certain cases, see Editor's Note to
§ 3679) and such remainder being vested, "the shares of
such children who should die between the vesting of title
and the vesting of estate in possession would go, (under
this section) to their heirs which would include their de-
scendants."
This section is but a codification of the common law,
Payne v. Rosser, 53 Ga. 662; Collins v. Smith, 105 Ga. 525,
31 S. E. 449.
Distinction between Vesting of Title and Vesting of Pos-
session— Death before Vesting of Title. — On account of the
remainder being vested absolutely in children in esse at
the time of the vesting of title, the shares of such children
who should die between the vesting of the title and the
vesting of the estate in possession would go to their heirs
under this section, which would include their descendants.
Thus, we see, there are two vestings of a vested remainder —
viz:, one of the title, and the other of the estate in pos-
session,— each of which is important in fixing the devolu-
tion of the title to such remainders; and that the law desig-
nating the beneficiaries thereunder excludes a grandchild
of the life-tenant whose parent died before the testator died.
See Davie v. Wynn, 80 Ga. 673, 6 S. E. 183, approved
in Tolbert v. Burns, 82 Ga. 213, 8 S. E- 79,' and Martin v.
Trustees, 98 Ga. 320, 25 ' S. E. 522; Burch v. Burch, 23 Ga.
536; Crowley v. Kendrick, 122 Ga. 183, 184, 50 S. E. 41.
Same — Definition of "Gift to Class."— "By gift to a c'ass
is legally meant, in general, an aggregate sum to a body of
persons uncertain in number at the time of the gift, to be
ascertained at a future time designated, who are to take in
some definite proportion, the share of each being dependent
for its amount upon the ultimate number, and is not on its
face a transfer of title to any particular or designated
member or members of the class. It is one of the charac-
teristics of a gift to a class that its members are to be as-
certained at a future time, and wherever at the time of
making a will the number of beneficiaries is certain and the
shares each is to receive is certain and not dependent on
the number who shall survive, the gift is not to a class,
but to the individuals personally. A legacy, by the general
familiar rule of law, lapses if the legatee named dies before
the testator. * * * But where an entire legacy is given
plainly to a class, it will be taken by the individuals who
compose that class on the death of the testator." Toucher
v. Hawkins, 158 Ga. 482, 483, 123 S. E. 618.
The property being given to testator's children as a class,
the children of the daughter of the testator, who died be-
fore her father, took no interest under the will. Toucher
v. Hawkins, 158 Ga. 482, 486, 123 S. E. 618.
Death between Vesting of Title and Vesting of Posses-
sion.— A devise to X for life then in fee to M and her heirs,
and if she has none to the children of J, two of whom, S
and P, died after testator but before the vesting of the
possession of the estate, created a vested remainder in S
and P, under this section, which was transmissible to their
heirs. Payne v. Rosser, 53 Ga. 662.
Where the sole contingency upon which the remainder
share could be divested was at an end, the estate becoming
indefeasable, and the remainderman of this share died in-
testate before the time arrived for possessing her estate in
remainder, her share passed to her heirs under this sec-
tion. Fields v. Lewis, 118 Ga. 573, 45 S. E. 437. See also,
Tate v. Tate, 160 Ga. 449, 456, 128 S. E. 393.
In an executory devise, where the contingency upon which
the devised property is to vest in the executory devisees is
as to the event or the subject-matter, but not as to the
person, upon the death of such devisees before the hap-
pening of the event upon which the property was to vest
in them, their heirs at law take as such the interest of
such executory devisees. Tate v. Tate, 160 Ga. 449, 128 Ga.
393.
"As the parents were in esse when the deed was executed
and delivered to the trustee, their rights to the property in
dispute became vested, and their dying before the life ten-
ant did not defeat the rights of their children to their
several distributive shares." Wilbur v. McNulty, 75 Ga.
458, 463.
In Irvin v. Porterfield, 126 Ga. 729, 55 S. E. 946, the wiil
provided for a life-estate to the widow of the testator, and
further provided: "At the death of my wife I wish my
property equally divided between my children." In that case
it was held that "As a general rule, when there is a devise
to a class, the members of the class are to be ascertained
upon the death of the testator, as the will takes effect on
that date. In a devise to children as a class by way of re-
mainder, children in esse at the" death of the testator take
vested interests. * * * The devise was to a class of children
of the testator. This class was fixed by the conditions that
existed at the death of the testator. And the interest of
any that might die before the period of distribution passed
to their heirs." Crawley v. Kendrick, 122 Ga. 183, 187, 50
S. E. 41, 2 Ann. Cas. 643; Milner v. Gay, 145 Ga. 858, 860.
90 S. E. 65; Gibbons v. International Harvester Co., 145
Ga. 467, 91 S. E. 482. Powell v. McKinney, 151 Ga. 803,
809, 108 S. E. 231.
Contingency Depending Upon an Event. — Where S deeded
land to X in trust for Y., for the life of Y and then to her
children, and if she die without children to X in fee, X had
a contingent remainder depending upon the happening of
an event and he can therefore devise that interest under
this section. Morse v. Proper, 82 Ga. 13, 8 S. E- 625.
Each of the testator's children living at the time of his
death took a one -tenth vested remainder interest in his es-
tate under this section, subject to be enlarged to a one-
ninth interest in the event the widow (life-tenant) does not
remarry, the latter interest being contingent upon the event
and not the person. Johnson v. Johnson, 158 Ga. 534, 539,
124 S. E. 18.
Same — Devisable before Code. — "We are of opinion that
contingent remainders both in realty and personalty, where
the contingency was as to the event and not as to the per
son, passed by will under the law of Georgia as it existed
prior to the adoption of the code." Collins v. Smith, 105
Ga. 525, 529, 31 S. E. 449.
The old doctrine was that contingent remainders were
not devisable by the person entitled thereto; but that doc-
trine was abandoned many years ago, and it is now held j
almost universally that a contingent remainder is devisable
where the contingency is not as to the person but as to |
the event. Indeed, that is the principle announced in this
section. Morse v. Proper, 82 Ga. 13, 18, 8 S. E. 625..
Same — Descendable at Common Law — What Persons I
Could Take. — "An executory devisee died prior to the code,
and before the happening of the contingency upon which his j
interest was limited to take effect, and it was held that)
his contingent interest was descendible, not, of course, to
those who were his heirs at the time of his death, but to
such persons as sustained that relation to him at the timef
the executory devise fell into possession; this being in a
cordance with the old rule that a person who claims a fee I
simple by descent from one who was first purchaser of the
reversion or remainder expectant on a freehold estate, must I
[ 1024 ]
3678
ESTATES FOR REMAINDER AND REVERSION
§ 3678
make himself heir to such person at the time when that
reversion or remainder falls into possession." Payne v.
Rosser, 53 Ga. 662; Collins v. Smith, 105 Ga. 525, 532, 31 S.
E. 449. See also, Tate v. Tate, 160 Ga. 449, 457, 128 S. E.
393.
Application of Latter Part of Section.— If no person to
take in remainder was in esse when the deed was executed
and none came into existence before the termination of the
life-estate, the remainder estate failed under the latter part
of this section. Edwards v. Edwards, 147 Ga. 12, 92 S. E.
540.
The latter part of this section does not control where the
property was devised to X for life and if she died without
children then remainder to Y in fee, for Y took a contin-
gent remainder dependent upon the event of birth of children
and therefore may convey the interest. Morse v. Proper,
82 Ga. 13, 8 S. E. 625.
Where Contingency Is as to Person.— A deed to X for
life, then to be divided between the heirs of his body, cre-
ated a contingent remainder in a child of X in esse at the
time of the grant, for the word heirs does not mean child-
ren,'and therefore can not be ascertained until the death of
X, thus they are not certain persons. See §§ 3663, 3676. There-
fore, no remainder vesting before the death of X, the heirs,
of a child who dies before X, could not take. Nor could the
child sell any interest. Sharman v. Jackson, 30 Ga. 224.
Applying this rule, it has been stated by the court, re-
ferring to a devise to A for life with remainder to his
children as a class: "Both at common law and under the
decisions of this court, such a devise in remainder has al-
ways been held, in accordance with an established principle
of law which has become a rule of property, to vest the
title only in the children in esse at the death of the testator,
subject to open and take in all other children born up to
the vesting of the estate in possession at the life-tenant's
death." Crawley v. Kendrick, 122 Ga. 183, 50 S. E. 41, 2
Ann. Cas. 643; Lamkin v. Hines Lumber Co., 158 Ga. 785,
124 S. E. 694.
Same — Limitation to Future Husband as Uncertainty.—
Where a decree is made to an unmarried woman with re-
mainder to her future husband, it is not uncertain as to
person under this section for the rule in aid of the early
vesting of estates (§ 3680) steps in and makes the first man
answering that description, take. Jossey v. Brown, 119 Ga.
758, 47 S. E- 350.
§ 3678. (§ 3102.) Perpetuities. — Limitations of
estates may extend through any number of lives
in being at the time when the limitations com-
mence, and twenty-one years, and the usual
period of gestation added thereafter. A limita-
tion bej'ond that period the law terms a perpetu-
ity, and forbids its creation. When an attempt is
made to create a perpetuity, the law gives effect
to the limitations not too remote, declaring the
others void, and thereby vests the fee in the last
taker under the legal limitations.
Cross References. — See 9 Cum. Dig. 365; 10 Enc.
Dig. 334 et seq. As to when creation of estate for years is
valid, see § 3685. As to dedication of land to municipality
for park in perpetuity, see § 890.
Editor's Note.— The rule defining the limits to which a
limitation may extend is a codification of the common law.
It is very probable that the remainder of this section was a
change of the common law made by the codifiers, for at-
tempts to create limitations beyond the period allowed at
common law were void.
Sometimes, in the older cases especially (see Robinson v.
McDonald, 2 Ga., 116; Carlton v. Price, 10 Ga. 495) the law
as here codified has been discussed and applied to cases in
which the law of § 3661 (Act of 1821) has also been applied.
It would seem from the recent cases (those since the code)
that in those cases where either §§ 3660 or 3661 or 3662
would apply, even though without their application the limi-
tation would be too remote under this section, they would
be applied to the exclusion of this section. Then it probably
follows that this section is only applicable to remote limita-
tions not falling within those sections. The only practical
difference it makes, we think, is the result reached by the
application of the one or the other.
It was said in Hollifield v. Stell, 17 Ga. 280, 284 that it
was the intention of the legislature in passing the act of
1821 (Sees. 3659, 3661) to prevent testators and others from
rendering estates unalienable within the limits prescribed by
law, to-wit: "during a life or lives in being," etc., now the
law of this section. So it may be said that §§ 3660 and 3662
Ga. Code— 33 [ 1025 ]
were intended to keep certain limitations from being too re-
mote.
Purpose of Rule — Manner of Application. — "This rule is
for the purpose of preventing the creation of remote future
interests in estates; and the devise, bequest, or grant is to
be first construed, and then the rule applied." Parker v.
Churchill, 104 Ga. 122, 125, 30 S. E. 642.
Rule Deals with Vesting of Estate, Not Postponement of
Possession. — The rule against perpetuities deals rather with
the vesting of an estate than the postponement of possession,
though it may sometimes have been applied to delaying pos-
session. Wright v. Hill, 140 Ga. 554, 568, 79 S. E. 546.
Rule Stated as to Time Limits. — "In order to constitute a
good and valid executory bequest or devise the limitation
over must be confined to a stated period, to wit, to a life or
lives in being, and twenty-one years afterwards, to which
may be added a few months more to reach the case of a
posthumous child." Carlton v. Price, 10 Ga. 495, 598.
Same — Should Be Fixed by Testator — Effect of Failure to
Fix. — -"The time within which the limitation over is to take
effect should be definitely fixed by the testator, so as to
bring it within the period prescribed by the rule, otherwise
it will be considered as a limitation upon an indefinite
failure of issue, and void. The testator failed to do that in
the case in hand and therefore his bequest to R, his heirs
and assigns forever, but if he die without heirs of body to
go to X, is too remote, for the right of X depended upon an
indefinite failure of issue, creates an estate tail, and there-
fore must give a fee to R under the Acts of 1821 (§ 3661). "
Robinson v. McDonald, 2 Ga. 116, 121.
"When the time is definitely fixed by the testator within
which the limitation over of the property is to take effect,
and such time is within a life or lives in being and twenty-
one years afterwards, as required by law, the limitation
over is good, and the intention of the testator will be car-
ried into effect; for being a limitation over upon a definite
failure of issue within the time allowed, the law is not
violated, nor the public policy of the country prostrated.
But when the time for the limitation over after the death
of the first taker is not definitely fixed by the testator, as
when property is bequeathed to A. and his heirs, or to the
heirs of his body, and if A shall die without any heir, or
heirs of his body, then the property is given over to B, this
limitation over to B. is void, because it is a limitation over
to him whenever the heirs or descendants of A, the first
taker, shall become extinct, without any reference to any
particular period of time, or any particular event — it is, in
the language of the authorities, a limitation over upon an
indefinite failure of issue, and void for the reason it might
tie up property for generations." Carlton v. Price, 10 Ga.
495, 498.
Same — Same — Result of Fixing. — A testatrix declared,
"nevertheless, if the said R. shall die without an heir, then
it is my desire that the above described and named negroes
be set free at his death." It was only such heirs of her son
R. as might be in life, and capable of taking at his death,
who were to have the property. The words "lawfully be-
gotten heirs of his body," were used to designate a par-
ticular class of persons, by the testatrix, who might be in
life and capable of taking the property at the death of her
son, and if there was no one in life answering the descrip-
tion of "heirs of his body" to take the property, then, at
his death, she made a final disposition of it, which con-
clusively rebuts the idea that the property was to be tied
up, and descend to the heirs general of her son R. in suc-
cession, without any restriction as to time. The final dis-
position of the property by the testatrix, at the death of her
son, takes the case out of the general rule, in our judg-
ment, inasmuch as a definite period of time is fixed for the
persons answering the description of heirs of the body of R.
to take the property, which period of time is within a life,
or lives in being, and twenty-one years afterwards. Carlton
v. Price, 10 Ga. 495, 498.
Same — Same — Same — "Then" Construed to Fix Time. —
The terms employed are, "provided, nevertheless, if my
said grandson should die, leaving no lawful heirs, then, in
that case, it is my will." The word "then" is plainly used
as an adverb of time, because it is in immediate juxtaposi-
tion with the phrase, "in that case." If we construe it as
a word of time, we represent the testator as simply saying,
"if my grandson should die, leaving no lawful heirs, in that
case, at that time, it is my will that the property should
be divided," etc. Harris v. Smith, 16 Ga. 545, 556.
(In the opinion of Dudley v. Porter, 16 Ga. 613 it was said :
"The word 'then' is sometimes used as a word of reasoning
— a particle of inference connecting the consequence with the
premises, and sometimes as an adverb of time. In the first
sense, it is equivalent to the expression, In that event,' or
'in that case,' or 'therefore;' in the other, it means 'at that
time,' or 'immediately afterwards.' When, in the first
§ 3678
ESTATES FOR REMAINDER AND REVERSION
§ 3679
sense, interposed between two limitations, it can have no
effect in restricting the limitation to issue living at the
death. In the sentence which we are considering, the word
is of course first used as a word of reasoning; but because
this is so, it is evident that when in the same connection it
is repeated, it is word of time.") Among other cases apply-
ing the principle and giving such construction to the word
"then" are the following that involved construction of wills:
Gibson v. Hardaway, 68 Ga. 370; Patterson v. Patterson,
147 Ga. 44, 92 S. E. 882; Nottingham v. McKelvey, 149
Ga. 463, 100 S. E. 371; Curies v. Wade, 151 Ga. 142, 103 S.
E- 1; Roberts v. Wadley, 156 Ga. 35, 37, 118 S. E. 664.
Same — Results Where Too Remote. — See note from Robin-
son v. McDonald this section.
"The rule of law is, that whenever the testator limits his
property to take effect after the death of the first taker
without heirs, or without issue, subject to no other restric-
tion, the limitation is void, as being too remote; such a
disposition of property is considered as a limitation over
upon an indefinite failure of issue, and is therefore an estate
tail, which is prohibited by our law." Carlton v. Price, 10
Ga. 495, 497.
Limitation Over to Future Wife Too Remote. — The limi-
tation over on the death of E-, J's wife, to J. in trust for
any future wife which he may have, which estate was to
determine at her death, was a violation of this section, for
no man could say, at the time the deed was executed, that
J. necessarily would marry within twenty-two years after
the death of his wife E-, or that the person whom he would
marry was in life. Overby v. Scarborough, 145 Ga. 875,
878, 90 S. E- 67.
Contingency Depending Upon Future Wife. — "It was early
held that where property is devised to A. for life, remainder
to his widow for life, remainder over on the death of the
widow, the ultimate remainder on the death of the widow,
if contingent until that event, is bad, because A. may marry
a woman who was not born at the testator's death; and
the result is not affected by the fact that A. is very old at
the testator's death." Overby v. Scarborough, 145 Ga.
875, 879, 90 S. E- 67.
Remainder to "Future Husband" Not Contingent. — A de-
vise to X for life with remainder to her children if any; if
none, to her husband, does not create a contingent remainder
under this section because of the uncertainty of the person
who might answer the description of husband in that she
might have more than one; for by § 3680 the first person
answering that description would take. Jossey v. Brown,
119 Ga. 758, 47 S. E- 350.
Construction of Limitation Over to Future Husband of Un-
married Woman. — A devise was in trust for L for life, with
remainder to her children, if any; and if none, or if those born
died before reaching maturity, then over to any man with
whom L might intermarry. (The first man answering de-
scription took, see note to § 3677). Any interest conveyed to
him necessarily had to vest in possession within twenty-one
years after the death of L. The devise over was therefore
not void as an attempt to create a perpetuity. Jossey v.
Brown, 119 Ga. 758, 761, 47 S. E. 350.
Construction of Bequest to Class Where Some in Esse. —
The executor was to hold the net income to assist the poor,
the sick, and the distressed among certain named persons,
the children of some of them, and the children and grand-
children of others, during the natural lives of such persons,
children, and grandchildren. If the children or grandchild-
ren born subsequently to the death of the testatrix are to
take under the will, the limitation over would be for a period
longer than is allowed by the rule against perpetuities. A
bequest to a class, some of whose members are in being at
the time the bequest is to take effect, does not include
others subsequently born. In the present case each class
was represented by some one or more members in esse, and
the bequest to them was to take effect' immediately upon
the death of the testatrix. Such bequest would, therefore,
include those children and grandchildren, and those only,
who were in life at the time of the testatrix's death. All
the beneficiaries being in life at the time of the testatrix's
death, and the duration of the first trust being restricted
to their natural lives, such trust can not extend through a
space longer than lives in being. It follows that the rule
against perpetuities is not violated by the bequest to the
first trust with limitation over to the second. Parker v.
Churchill, 104 Ga. 122, 125, 30 S. E- 642.
Degree of Possibility of Contingency Happening Beyond
Time Limits. — "Whether a limitation over is to be regarded
as a perpetuity or not depends upon the time within which
such limitation must take effect. 'It is not enough that a
contingent event may happen, or even that it will probably
happen, within the limits of the rule against perpetuities;
if it can possibly happen beyond those limits, an interest
conditioned on it is too remote.' " O'Byrne v. Feeley, 61 Ga.
78, 86; Overby v. Scarborough, 145 Ga. 875, 878, 90 S. E. 67.
Construction of Limitation Over Upon Failure of Issue of
Surviving Child. — The limitations over in favor of the
brothers and sisters of a niece, should she have a child and
it should survive her and die without issue, is bad. This
deals with a child not in being when the will took effect by
the death of the testator, and which might never be born,
or, if born, might not die within twenty-one years. So that
the limitation over to the brothers and sisters might not be
determinable within the time limited by the rule. Phinizy
v. Wallace, 136 Ga. 520, 529, 71 S. E. 896.
Cases Not Within Rule. — Relatively to the rule against
perpetuities, as declared in this section, the limitation over,
after the death of each niece, in favor of her child or child-
ren, was valid. Phinizy v. Wallace, 136 Ga. 520, 71 S. E-
896.
"I desire and request of my executors to keep all the prop-
erty mentioned undivided until the youngest one of the is-
sue of my sons and daughters mentioned shall become of
age," did not conflict with the rule against perpetuities.
Wright v. Hill, 140 Ga. 554, 79 S. E- 546.
"The limitation over in favor of the father of a niece, if
she should marry and die without issue (treating issue used
in this connection as meaning issue at the time of her death,
as provided in § 3663), is valid." Phinizy v. Wallace, 136 Ga.
520, 529, 71 S. E. 896.
"The limitation in favor of children of the father, in the
event the niece should survive her father, and die without
issue, is valid, because the person to take would be de-
termined upon the death of the niece." Phinizy v. Wal-
lace, 136 Ga. 520, 529, 71 S. E. 896.
A bequest by a testator, to such child or children as his
grand-daughter may have at her decease, no such children
being then in life; and a provision that "in case any such
child or children should die during the life of its mother,
leaving issue of their body, such issue shall, in • such case,
represent the parent" is not a limitation over, upon the
death of an unborn child; and therefore, objectionable be-
cause not upon a life or lives in being, and twenty-one
years, with the usual period of gestation thereafter; but it
is a gift to the children and grand-children of testator's
grand- daughter, living upon the termination of a life in
being, viz: that of the grand-daughter. Robert v. West, 15
Ga. 122.
Latter Part of Section Applied. — This section declares that
when an attempt is made to create a perpetuity, the law
gives effect to the limitations not too remote, declaring the
others void. The result of the application of this principle
is to vest in possession the ultimate remainder of the child-
ren upon the death of the first life-tenant, where a deed to
X. in trust for Y. remainder to any future wife, and upon
her death to the children of X. Overby v. Scarborough,
145 Ga. 875, 880, 90 S. E- 67.
§ 3679. (§ 3103.) Creation by parol.— Remain-
ders can not be created by parol. They may be
created for persons not in being; and if a vested
remainder, it opens to take in all persons within
the description coming into being up to the time
of enjoyment commencing.
See the Statute of Frauds, § 3222. As to creation of trust
by parol, see § 3733.
Editor's Note. — This section carries the operation of §
3677 upon children as a class, as pointed out in the Editor's
Note of that section, one step further and makes the vested
remainder in the children in esse open to take in after born
children falling within the class.
Neither the operation of §§ 3660, 3677, or this section will
give the representatives of a person who would have fallen
within the class if he had outlived the testator a share,
for the class can not be ascertained until such death and a
person who has previously died could not qualify as a
member at this time.
. Now the heirs, of any person who shall qualify if in life
at the death of the testator, until such happenings, have at
most no more than a remainder contingent upon such con-
ditions. See the notes to §§ 3660, 3677.
Creation by Parol in Personalty. — A remainder in per-
sonal property to take effect and be enjoyed after a life
estate, can not be created by parol in favor of persons not
in being at the time the property is delivered to the tenant
for life. Maxwell v. Harrison, 18 Ga. 61; Yarborough v.
West, 10 Ga. 471, 475; Kirkpatrick v. Davidson, 2 Ga. 279.
Section Dees Not Apply to Reversions. — It has never been
decided by this Court, that a reversion, in personal prop-
erty, could not be created by parol; although, from the use
of that word, in the first opinion delivered upon this sub-
[ 1026 ]
§ 3680
ESTATES FOR REMAINDER AND REVERSION
§ 3660
ject, incautiously perhaps, it may be inferred that the judge
who wrote it out, supposed, at the time, that the rule ap-
plied to reversions as well as remainders. Booth v. Terreli,
16 Ga. 20, 24.
Remainder by Parol "Held Not Attempted. — Where H
loaned prope'rty to T and his wife, for the life of the latter,
with the understanding, that at her death, the same "should
be returned to his daughter M;" the court held that this was
not an attempt to vest a remainder in M by parol gift. Booth
v. Terrell, 18 Ga. 570. See also Alderman v. Chester, 34
Ga. 152.
Remainder to Unborn Child Contingent. — The remainder
given to the unborn child or children was, of course, con-
tingent until the birth of such a child, when the remainder
given to the named children, if vested, would open to take
in such after-born child. Wilbur v. McNulty, 75 Ga. 458,
466; Fields v. Lewis, 118 Ga. 573, 575, 45 S. E. 437.
T the son of J one of the second life -tenants, not being in
esse at the death of the testator, the remainder, under this
section is construed to be contingent until the birth of the
child in whom the title to the remainder immediately vests,
subject to open and take in all other children born before
the termination of the life-estate. Crawley v. Kendrick,
122 Ga. 183, 184, 50 S. E. 41, 2 Ann. Cas. 643; Gibbons v. In-
ternational Harvester Co., 146 Ga. 467, 91 S. E. 482; Cock
v. Eipsey, 148 Ga. 322, 96 S. E- 628.
§ 3680. (§ 3104.) Vesting of remainders fa-
vored.— The law favors the vesting of remainders
in all cases of doubt. In construing wills, words
of survivorship shall refer to the death of the
testator in order to vest remainders, unless a
manifest intention to the contrary appears.
See 9 Cum. Dig. 1015, 1016; 11 Enc. Dig. 194, 195.
Principle of Common Law Origin. — "Sound policy, as well
as practical convenience, requires that titles should be
vested at the earliest period; and it has long been a set-
tled rule of construction in the courts of England and
America that estates, legal or equitable, given by will or
deed, should always be regarded as vesting immediately,
unless the intention is clearly to the contrary." Wilbur v.
McNulty, 75 Ga. 458, 465.
Remainders Which Vested Early. — "In the present case
there seems to be no clear manifestation of an intent to
postpone the vesting of the title in the remaindermen, and
therefore it is to be presumed that the testator intended that
the remainder interest should vest at the moment when
the will became operative. If there should be doubt on this
question, it must be resolved in favor of the earlier vest-
ing." Toucher v. Hawkins, 158 Ga. 482, 487, 123 S. E. 618;
Powell v. McKinney, 151 Ga. 803, 108 S. E. 231.
Following this section as governing in cases where the
intention of the grantor is not so expressed as to be free
from doubt, not being able to say that the grantor in the
deed under consideration did not intend to employ the word
"vest" as meaning a vesting in possession, we construe the
deed which provides "to C for life and then to vest in such
child as born or may be born of our marriage" as creating
at the time of its execution a vested remainder in such
children as were then in life, subject to open up and let in
to a vested-remainder interest children thereafter born to
them. Burney v. Arnold, 134 Ga. 141, 148, 67 S. E. 712.
"Courts will not become astute, in order to declare a
remainder contingent but will construe the limitations
liberally, with a view to declare it vested." Holcombe v.
Tuffts, 7 Ga. 538, 544.
Where Contrary Intention Appears. — It is undoubtedly the
rule declared by this section that, "in construing wills,
words of survivorship shall refer to the death of the testa-
tor in order to vest remainders, unless a inanifest intention
to the contrary appears." The trouble in this case is that
we think a manifest intent to the contrary appears. The
testator expressly provided for the devolution of the estate,
if a niece should die before he died. If the other provisions
as to the death of a niece, with or without issue, should be
held to provide for such death before that of the testator,
they would be mere surplusage. Phinizy v. Wallace, 136
Ga. 520, 524, 71 S. E. 896.
The language "I will that in case G dies his portion to
go to my other children," was intended to create a con-
tingency, the happening of which would divest G of his share
in the already vested estate. In case of doubt the law
favors the vesting remainders at the earliest time under this
section. It is true the word "survivor" is not used in this
case, but we think the testator had in view the idea of
survivorship after some one else had died. The testator had
in view the death of G before the death of the life-tenant
Almand
Almand, 141 Ga. 372, 375, 81 S. E-
children.
228.
The language of the deed, considered as a whole, plainly
shows that the grantor did not use the words "dying with-
out issue" as meaning so dying before the termination of
the life-estate, but that they had reference to the time of
the death of the daughter. Sterling v. Huntley, 139 Ga.
21, 76 S. E. 375.
Same — Construction of Words of Survivorship. — "Where a
future time is fixed for a division or distribution, there are
decisions which hold that words of survivorship will be re-
ferred to such time, in the absence of anything to show a
contrary intent. But if the instrument, whether a will or
a deed, shows clearly a different intent on the part of the
maker, it will control." Sterling v. Huntley, 139 Ga. 21, 24,
76 S. E- 375.
Same — Same — Intent Deduciable from Language. —
"Whether a testator manifestly intends that words of sur-
vivorship should refer to the death of another in a given
case will depend upon the language of the will. In Dudley
v. Porter, 16 Ga. 613, words of survivorship expressed in a
deed were held to refer to the death of one other than the
grantor." Roberts v. Wadley, 156 Ga. 35, 37, 118 S. E. 664.
Same — Same — As Manifest by Use of "Them." — "Should
all of my daughters marry, or should all the unmarried
daughters depart this life, then, on the happening of either
event, the estate to be divided between our then surviving
children, * * *." The word "then" was used twice, and in
the second instance, that is in the clause "divided equally
between our then surviving children" it was employed as an
adverb of time. The estate in remainder was contingent,
because it was uncertain as to the person who would take
until the death of the last of the testator's unmarried
daughters. "Then," at the death of the last of the testator's
daughters who did not marry, the persons to take were
definitely ascertainable, and there was no longer uncertainty
as to the person who would take. The words of survivorship
manifestly referred to the marriage of the last of the
daughters to marry or to the death of the last unmarried
daughter, and not to the death of the testator. Roberts v.
Wadley, 156 Ga. 35, 40, 118 S. E. 664.
Application of Rule as to Words of Survivorship. — A will
devised to the wife of the testator certain land for and dur-
ing her natural life, and then provided, "after her death to
be sold, and the proceeds to be equally divided between my
surviving children and the children of any of my deceased
children." The words of survivorship applied to the death of
the testator, and that the persons designated took a vested
remainder interest at his death. Green v. Driver, 143 Ga.
134, 136, 84 S. E. 552; Crossley v. Leslie, 130 Ga. 782, 61 S.
E. 851.
"Where no special intent is manifested to the contrary,
words of survivorship will have reference to the time of the
death of the testator, and not to the time of the death of the
life-tenant. Vickers v. Stone, 4 Ga. 461, 464; Speer v. Roach,
145 Ga. 852, 854, 90 S. E. 57." Moore v. Cook, 153 Ga. 840,
841, 113 S. E. 526.
In Vickers v. Stone, 4 Ga. 461, the language under construc-
tion was a bequest of real and personal property to the wife
of the testator, for the raising and education of his children,
"during her natural life; and at her death to be equally di-
vided among all his surviving children, and the legal rep-
resentatives of such as may be deceased." It was held that
the words of survivorship had reference to the death of the
testator, and not that of the life-tenant; and that the chil-
dren who were in life at his death took vested remainders
under his will, to be enjoyed after the death of the tenant for
life. Crossley v. Leslie, 130 Ga. 782, 787, 61 S. E- 851.
In McGinnis v. Foster, 4 Ga. 377, 380, the testator created
an estate for his wife during life nr widowhood, and directed
that, if his wife should die or marry, "a sale be made of all
my property, both real and personal, and the proceeds '->e
equally divided among my children." It was held that the
children, of the testator who survived him took, at his death,
a vested remainder estate; and that this was not changed by
the direction to sell and divide the proceeds. Cresslev v.
Leslie, 130 Ga. 782, 788, 61 S. E. 851.
In case of the death of the grantor's daughter without leav-
ing children or the representatives of children, the property
was conveyed "to her brother or brothers, and their children
surviving." It was contended that the word "surviving"
meant children surviving their respective parents. We think
that the word "surviving" refers to surviving the life-ten-
ant. This construction is more in accord with the spirit of
this section. Duke v. Huffman, 138 Ga. 172, 175, 75 S. E. 1.
In case of devise to two daughters for their lives, and, af-
ter their respective deaths, to the child or children of the
daughters, the remainder vested, at testator's death, in the
children then living, to be enjoyed at the death of the surviv-
— in that event his share was to go "to the balance of" his ' ing daughter, but subject to open and take in children born
[ 1027 ]
§ 3681
ESTATES FOR REMAINDER AND REVERSION
§ 3682
between the time of vesting and time of enjoyment under §
3679; all took per capita. Olmstead v. Dunn, 72 Ga. 850; De-
Vane v. Young, 154 Ga. 832, 839, 115 S. E. 661.
Where a testator in his will bequeathed property to his
wife during her natural life, and at her death to be equally
divided among all his surviving children and the legal repre-
sentatives of such as may be deceased, it was held that the
words of survivorship had reference to the death of the testa-
tor, and not to the death of the tenant for life, and that all
the children of testator who were in life at his death took
vested remainders under the will, to be enjoyed at the death
of the tenant for life. Vickers v. Stone, 4 Ga. 461. For ad-
ditional cases stating the rule favoring the vesting of certain
legacies at testator's death, see: Mendel v. Stein, 144 Ga. 107,
86 S. E. 220; Crossley v. Leslie, 130 Ga. 782 (5), 786, 788,
61 S. E- 851, 14 Ann. Cas. 703; Clanton v. Fstes, 77 Ga.
352, 1 S. F. 163; Legwin v. McRee, 79 Ga. 430, 4 S. E. ^63;
Fields v. Lewis, 118 Ga. 573; Wilcher v. Walker, 144 Ga. 526,
87 S. F. 671; Munford v. Peeples, 152 Ga. 31, 39, 108 S. F- 454.
Vesting of Remainder to Future Husband. — By the rule in
aid of the early vesting of estates in the case of gifts to un-
married women for life, with remainder to the husband, the
first who answers to the description is to be considered to
have been intended by the testator as the recipient of his
bounty. Jossey v. Brown, 119 Ga. 758, 765, 47 S. E. 350.
When Gift to Class Vests. — In Irvin v. Porterfield, 126 Ga.
729, 55 S. F. 946, the will provided for a life-estate to the
widow of the testator, and further provided: "At the death
of my wife I wish my property equally divided between my
children." It was held, "As a general rule, when there is a
devise to a class, the members of the class are to be as-
certained upon the death of the testator, as the will takes ef-
fect on that date. In a devise to children as a class by way
of remainder, children in esse at the death of the testator
"take vested interests. * * * The devise was to a class of
children of the testator. This class was fixed by the con-
ditions that existed at the death of the testator. And the
interest of any that might die before the period of distribu-
tion passed to their heirs." Crawley v. Kendrick, 122 Ga.
183, 187, 50 S. E. 41, 2 Ann. Cas. 643; Milner v. Gay, 145 Ga.
858, 860, 90 S. F- 65; Gibbons v. International Harvester Co.,
146 Ga. 467, 91 S. E. 482; Toucher v. Hawkins, 158 Ga. 482,
487, 123 S. F. 618.
Cited in Johnson v. Johnson, 158 Ga. 534, 124 S. E. 18;
Hudgens v. Wilkins, 77 Ga. 555.
§ 3681. (§ 3105.) Assent of the executor. — The
assent of the executor to a legacy to the tenant
for life inures to the benefit of the remain-
derman. Remainderman, at the termination of
the life-estate, may take possession immediately.
If, however, the will provides for a sale or other
act to be done for the purpose of, or prior to, a
division, the executor may recover possession for
the purpose of executing the will.
Cross References — See 11 Cum. Dig. 561, 562; 12 Enc. Dig.
879, 880. As to effect of assent of executor, see § 3896 and
note. As to assent of one where there are more than one,
see § 3897.
Administrator's Right to Possession. — It is apparent that
under the terms of the will the duty of selling for distribu-
tion, if the lands could not be divided in kind, devolved upon
the executrix under this section. Hall v. Ewing, 149 Ga. 693,
696, 101 S. E. 807.
Same — Where Executor Had Assented. — The administrator
may recover property from the remaindermen for the pur-
pose of sale even though the executrix had assented, where
the will provided that a sale should be made and the proceeds
divided among the remaindermen. Evans v. Paris, 148 Ga. 44,
95 S. E. 682.
Remaindermans' Right to Possession After Division Sale
Ordered. — "In Foster v. McGinnis, 4 Ga. 377, it is very
strongly intimated, that the mere fact of a sale being ordered
for the purpose of a division, not only will not keep the re-
mainder from vesting, but, in a proper case, the remainder-
men, themselves, might have made the sale and the di-
vision." Burch v. Burch, 19 Ga. 174, 184.
What Amounts to Assent. — Where the life tenant, being
executrix, turned over the property to remainderman, the re-
linquishing of life estate was evidence of assent to ihe
legacy and the administrator succeeding her had no right to
possession. Perkins v. Brown, 29 Ga. 412.
Same — Silence. — When a legatee for life is in possession of
the property bequeathed, at the death of the testator, and
the executor allows him to retain the possession, this is an
assent to the legacy, both as to tenant for life and re-
mainderman. Parker v. Chambers, 24 Ga. 518.
Assent Irrevocable — Where Assets Insufficient to Pay
Debts. — The assent of the executor "when once given is in
general irrevocable, although the assets may prove insufficient
to pay the debts." Watkins v. Gilmore, 121 Ga. 488, 49 S. E-
598.
Assent Perfects Inchoate Title. — The assent of 'the executor
to a devise of lands perfects the inchoate title of the devisee.
Watkins v. Gilmore, 121 Ga. 488, 49 S. E- 598.
Same — Assent to Life Estate Inures to Remainderman. —
Where land is devised to one for life with remainder over to
another, the executor's assent to the devise for life inures to
the benefit of the remainderman, and at the termination of
the life-estate the remainderman may take immediate pos-
session of the property unless the will shows a different in-
tention. Watkins v. Gilmore, 121 Ga. 488, 49 S. E- 598.
Where after the lapsing of the life estate, there being no
debts against the estate, the executors or trustees having
previously turned it over to the life-tenant to be appropriated
to the purpose, thereby having assented to the legacy of both
the life-tenant and remainderman, the estate vested in the
remainderman, and there was no impediment to their enter-
ing and taking possession. Akin v. Akin, 78 Ga. 24, 28, 1 S.
E. 267.
Where ejectment was brought by an administrator de bonis
non, and it appeared from the evidence of the plaintiff that
the will created a life estate in the land with remainder over,
that the executor assented to the bequest and put the life ten-
ant in possession, that she had sold to the defendant in eject-
ment and then died, this section is complied with and a non-
suit should have been granted. McGlawn v. Lowe, 74 Ga. 34.
Same — Same — Not Subject to Debts — Ordinary Loses
Jurisdiction. — Where, under the executor's assent to a de-
vise for life with remainder over, the remainderman, after
the death of the life-tenant, becomes entitled to the immediate
possession of the land, such land is no longer any part of the
estate of the testator nor subject to be sold to pay debts of
such estate; and the ordinary has no power or jurisdiction to
order the land sold as part of the estate. In such case, al-
though the ordinary has granted an order of sale, the exec-
utor, having no title or right -to the land, can not recover it
from the remainderman or from a third party, whether the
latter have good title or not. Watkins v. Gilmore, 121 Ga.
488, 49 S. E. 598.
§ 3682. (§ 3106.) Merger.— If two estates in
the same property unite in the same person in his
individual capacity, the less estate is merged in
the greater.
Cross References.— See 8 Cum. Dig. 592, 593; 9 Enc. Dig.
338-340. As to lien on ones own property, see § 3683. As to
merger in case of executed trust, see § 3737 and note. As to
a release, see § 4309 and note.
Intent as Affecting Merger. — "It is true that merger does
not, in general, take place when the person in whom the two
estates meet intends that it shall not take place. Knowles v.
Lawton, 18 Ga. 476. Still where it is manifest that the per-
son in whom the two estates meet intends that the merger
shall take place, it can not be defeated by other parties."
Wilder v. Holland, 102 Ga. 44, 46, 29 S. E. 134. See also, Pitts
Banking Co. v. Fenn, 160 Ga. 854, 129 S. E. 105.
Same — Defeat by Other Parties. — "And where it is mani-
fest that the person in whom the two estates meet intends
that the merger shall take place, it can not be defeated by
other parties. Wilder v. Holland, 102 Ga. 44, 29 S. E. 134;"'
Muscogee Mfg. Co. v. Eagle, etc., Mills, 126 Ga. 210, 219, 54
S. E. 1028.
Same — Burden of Proof. — If two estates in the same prop-
erty united in the same person in the same capacity, and it
is contended that no merger took place, the person making
such contention, if entitled to do so must allege and prove
facts negativing the existence of such merger. Muscogee
Mfg. Co. v. Eagle, etc., Mills, 126 Ga. 210, 54 S. E- 1028;
Pitts Banking Co. v. Fenn, 160 Ga. 854, 129 S. E. 105.
"The doctrine of merger of estates rests upon actualities;
not upon mere possibilities. Coincidence of two independent
estates, presently held by one and the same person or class
of persons, is a necessary prerequisite to merger. No merger
can take place until such identity of person and of present
interest in point of fact exists." Luauire v. Lee, 121 Ga. 624,
634, 49 S E. 834.
Necessity of Being in Same Person. — One estate can not be
merged in another, unless both estates are owned by the
same person in the same right. Pool v. Morris, 29 Ga. 374.
Same — Merger in Class — Requisites. — It is doubtless true
that where the entire interest in a life-estate is held by a
class of persons, under a deed or v/ill which does not pro-
vide for survivorship, and subsequently the estate in re-
mainder is vested in all of the members of this class, as ten-
ants in common, by inheritance or otherwise, the life-estate
[ 1028 ]
§ 3682
ESTATES FOR REMAINDER AND REVERSION
§ 3683
becomes merged, by operation of this section into the greater
estate which they acquire. But if it is vested in a lesser num-
ber than the whole, as in this case, they do not merge.
Luquire v. Lee, 121 Ga. 624, 633, 49 S. E- 834.
A merger of estates occurs when "two estates in the same
property unite in the same person in his individual capacity,
the less estate [being] merged in the greator." Or where, as
was held in the case of Lowe v. Webb, 85 Ga. 731, 11 S. E.
845, two or more persons having, as tenants in common, a
life-estate in realty, acquire in common the absolute fee there-
to. See also Stringfellow v. Stringfellow, 112 Ga. 494, 497, 37
S. E- 767; Bardwell v. Edwards, 117 Ga. 824, 45 S. E. 40;
Luquire v. Lee, 121 Ga. 624, 632, 49 S. E. 834.
Where the possible remaindermen hold a life estate to-
gether with X, but the remainder is limited to those only who
survive X, the uncertainty of knowing who will actually sur-
vive would alone prevent merger of estates under this sec-
tion. Suquire v. Lee, 121 Ga. 624, 49 S. E- 834.
Where Homestead and Reversionary Interest Merged. —
Where the sole beneficiary of a homestead estate acquires an
absolute title to the reversionary interest in the property out
of which the homestead estate was carved, and it does not
appear that it was the intention of such benehciary to keep
the two estates separate, the lesser, or homestead estate, would
become merged in the greater, or absolute estate under this
section, and the property would be subject to the payment
of the debts of the person in whom the two estates united.
Goodell v. Hall, 112 Ga. 435, 37 S. E. 725; Pitts Banking Co.
v. Fenn, 160 Ga. 854, 129 S. E. 105.
Merger of Life Estate and Year's Support. — Having a life
estate in the use of the property by reason of the homestead,
and having afterwards acquired an absolute estate in the
same property by reason of its being set apart to the wife as
a year's support, the life-estate, being the lesser, is merged
in the absolute estate. Treating the homestead estate as a
legal estate, this section of the code applies. Treating the
homestead estate a,s an equitable one, as this court has some-
times done, the same rule still applies. Lowe v. Webb, 85
Ga. 731, 733, 11 S. E- 845.
Same — Effect as to Liability for Debts. — The lesser estate
being destroyed by merging in the greater, the limitations
and restrictions thrown around the lesser as to its not being
subject to levy and sale, were also removed when it ceased to
exist; and having become an absolute estate or estate in fee,
it is subject to the debts of the owner, just as other estates
held in the same manner. Lowe v. Webb, 85 Ga. 731, 733, 11
S. E. 845.
Merger of Life Estate and Reversion. — At the date of the
deed which is attacked in this case, H. had vested in her a
life-estate annexed to which was a power of disposition by
will, which was derived from the will of her grandfather; she
had also vested in her the reversion which was undisposed of
by her grandfather's will; and upon the well- settled doctrine
of merger of estates, the less estate, that is the life-estate,
coupled with the power, became merged into the greater es-
tate, that is the fee represented by the reversion under this
section. Wilder v. Holland, 102 Ga. 44, 46, 29 S. E. 134.
If, by the operation of the words "during his life" together
with the statute of uses, an estate during the life of Wiley
S. Sanders (or what is called in law an estate pur autre vie)
resulted, then this interest was merged in the remainder or
greater estate which followed it under this section. Thomp-
son v. Sanders, 118 Ga. 928, 930, 45 S. E. 715.
Merger of Easement Upon Union of Dominant and Servient
Estates. — "Where there is a union of an absolute title to and
possession of the dominant and servient estates in the same
person, it operates to extinguish any such easement absolutely
and forever, for the single reason that no man can have an
easement in his own land." Muscogee Mfg. Co. v. Eagle, etc..
Mills, 126 Ga. 210, 219, 54 S. E. 1028.
Merger of Water Rights With Estates WThere four per-
sons formed a water company and the legislature gave it
power to buy land with all the appurtenances necessarily
appertaining thereto with power of disposition, death of any
of them not to prevent a sale, there was no legislative re-
striction preventing a merger of rights running in favor of
some of the lots purchased for the benefit of others, when
all became the property of one person, although before the
incorporation. Muscogee Mfg. Co. v. Eagle, etc., Mills, 126
Ga. 210, 54 S. E. 1028.
Merger of Equity of Redemption with Legal Title. —
Where the mortgagee purchases the equity of redemption
under a junior lien, the whole estate is vested in him; and
both the mortgage and the debt upon which it is founded
are extinguished, unless the actual value of the mortgaged
property is ascertained by foreclosure and sale, or express
stipulation between the parties. Pitts Banking Co. v. Fenn,
160 Ga. 854, 129 S. E. 105.
Where the mortgagee purchases the mortgaged property
from the mortgagor, the mortgage is extinguished by
Pitts Banking Co.
Fenn, 160 Ga. 854, 129 S.
merger.
E. 105.
An absolute deed conveying land as security for a debt
is a security of a higher nature than a mortgage for the
same debt on the same premises, and when the mortgage
is entered satisfied, and surrendered up because of the
execution of such deed, the transaction operates as a nova-
tion and amounts to a merger. Pitts Banking Co. v. Fenn,
160 Ga. 854, 129 S. E. 105.
The general rule at law is that the mortgage becomes
merged in the deed, the latter conveying a greater estate
than the mortgage; but in equity the lesser security is
not merged in the greater when it appears that the holder
of both intended that a merger should not take place. The
intent controls. Ferris v. Van Ingen, 110 Ga. 102, 111,
35 S. E. 347; Pitts Banking Co. v. Fenn, 160 Ga. 854, 129
S. E- 105.
Presumptively a mortgage is merged when the mortgagee
takes from the mortgagor a warranty deed absolute in
form to the mortgaged property. Furthermore such a deed
is presumptively one of bargain and sale. Pitts Banking
Co. v. Fenn, 160 Ga. 854, 129 S. E. 105.
J., the mortgagee, became the purchaser of the equity
of redemption in the two halves of the mortgaged lot of
land. The facts were such as to require the presumption,
that he intended the equity of redemption, in one of the
halves, to merge; but the equity of redemption in the other
not to merge. The decision was, lhat as to the first men-
tioned half, there was a merger; as to the other half, none.
Jackson v. Tift, 15 Ga. 557, 559.
"In Knowles v. Lawton, 18 Ga. 476, it was held, that 'It
the bolder of the equity of redemption takes an assign-
ment of the mortgage which is in the process of foreclosure,
and goes on with the suit of foreclosure, his intention, it
is to be presumed, is that the equity of redemption shall
not merge in the legal estate; and therefore the equity of
redemption does not merge in the legal estate.' This deci-
sion was rendered prior to the adoption of the code; but
the principle that a merger of an equity of redemption
into a legal estate may be prevented, and whether it oc-
curs depends to a considerable extent on the intention of
the person in whom the two estates meet, has been carried
forward into decisions rendered since the code went into
effect. See Marshall v. Dixon, 82 Ga. 435, 9 S. E. 167;
Ferrish v. Van Ingen, 110 Ga. 102, 35 S. E. 347, (where it
was held that the intention that there should be no mer-
ger was a necessary deduction from the writings them-
selves); Coleman & Burden Co. v. Rice, 115 Ga. 510, 42
S. E. 5;" Muscogee Mfg. Co. v. Eagle, etc., Mills, 126 Ga.
210, 219, 54 S. E. 1028.
§ 3683. (§ 3107.) Lien on one's own property.
— As a general rule a party can not hold a lien
on his own property; but the owner of property,
subject to a lien created or imposed against the
property by another, may protect himself by
purchasing the lien for levy on other property,
or to hold it as a claim against the person liable
to pay the same.
See the note to § 3682. See also 8 Cum. Dig. 225, 8 Enc.
Dig. 765.
Cases from Which Section Taken. — As a general rule, a
party can not hold a lien on his own property; and this is
never allowed except where equity intervenes to protect the
title and thereby prevent a failure of justice. Where the
money due on a mortgage is paid by one whose duty it
is, by contract or otherwise, to pay the mortgage, it is a
release, though, in form, it purports to be an assignment,
and a subsequent assignment of the mortgage by the party
whose duty it was to extinguish it, could give no title to
the assignee as against the holder of another mortgage, to
advance the lien of which the agreement to take up the first
incumbrance was made. Clay v. Banks, 71 Ga. 363. (This
section first appeared in the code of 1895. — Ed. Note.)
The bona fide purchaser of property, against which a
mortgage lien existed, who purchased or obtained control
of such mortgage to protect his title to the property, had
the right to foreclose it and have it levied on other property
of the debtor; and when the property so levied on was sold
by the sheriff, and the proceeds of the sale were brought
into court and claimed by a younger judgment creditor, a
court of equity, or of law on equitable proceedings, would
not, at the instance of the junior creditor, compel the
holder of the older lien to satisfy it out of the property
purchased by him; nor would it compel the holder of such
lien to transfer it to the junior creditor for the same pur-
pose. Georgia Chemical Works v. Cartledge, 77 Ga. 547.
Illustration of Application. — K. transferred its mortgage
[ 1029 ]
§ 3684
ESTATES FOR YEARS
§ 3688
to C. This mortgage covered the same goods which the
latter had purchased from B. This in law merged the in-
cumbrance in the legal title, because as a rule one can not
have a lien upon his own property. If C. had filed its
equitable petition when the justice's court fi. fas. were first
levied upon the goods, setting up the facts as they appear in
this record, and praying the court for a decree declaring
the mortgage lien superior to that of the justice's court fi.
fas., the court would doubtless, upon proper proof, have
granted the prayer under this section. Bearden v. Carter
Merchandise Co., 101 Ga. 169, 171, 28 S. E. 678.
§ 3684. (§ 3108.) Estates during widowhood. —
An estate may be created during widowhood,
and such estate shall be subject to the same rules
as life-estates. Limitations over upon the mar-
riage of a widow shall be valid, unless such limi-
tations are manifestly intended to operate as a
restraint upon the free action of such widow in
respect to marriage, and are not simply prudential
provisions for the protection of the interest of
children or others in such event; in such cases
they are void.
Cross References. — For another section dealing with es-
tates during widowhood, see § 3665. As to the law on re-
straint of marriage, see § 2929. See also § 2934. As to dower
rights of wife, see § 5247 et seq. See the note to § 3661.
Origin and Necessity of Section. — The estate, during
widowhood, is as old as the common law. Such an estate
is, precisely equivalent in import, to an estate to a widow
for her life, on condition that she does not marry again.
Widows in a majority of cases have children. A second
marriage must, almost of necessity, interfere with their
duties to these. In practice it, frequently, also endangers
the peace and the property of the children. Snider v. New-
som, 24 Ga. 139, 146.
Effect Upon Co-Tenant Where Grant to Widow Void. —
Where an estate was devised to X, and the widow during
her widowhood, even if the provisions were invalid as be-
ing in restraint of marriage under this section, it would
not affect the estate granted to X. McCarty v. Maugham,
144 Ga. 198, 86 S. E. 555.
Application of Section 3666 to Estates for Widowhood. —
It is declared in this section, that estates for widowhood
are subject to the same rules as life-estates. Among the
rules applicable to life-estates are the provisions of § 3666.
Lee v. Rogers, 151 Ga. 838, 841,' 108 S. E. 371.
Applications of Section. — The estate for widowhood as
known to the common law is recognized in this State and
provided for by the terms of this section. Though contracts
in restraint of marriage are void, the intention to impose a
penalty for remarriage must be manifest and exclusive.
The creation of a fee defeasible by marriage is not neces-
sarily in restraint of marriage, because the beneficiary is
submitted to an election between the acceptance of the gift
and remarriage, should she prefer to remarry. Logan v.
Hammond, 155 Ga. 514, 117 S. E. 428.
A condition imposed by a testator upon a gift to his
widow, to the effect that upon her remarriage the devise
shall pass to his other heirs named, is not void as being in
restraint of marriage. The intention to impose a penalty
in terrorem must be manifest and unequivocal, and the
provisions of the will in this case do not disclose any such
intention. Logan v. Hammond, 155 Ga. 514, 117 S. E. 428.
A man's will was to this effect: I give "all my estate"
to my wife; "but in case" she marry again, I give it to my
five children. She married again. It was held, that she
lost the estate, and it went to the children. Snider v. New-
som, 24 Ga. 139; Doyal v. Smith, 28 Ga. 262, followed in
Logan v. Hammond, 155 Ga. 514, 117 S. E- 428.
CHAPTER 4.
Of Estates for Years.
§ 3685. (§ 3109.) Definition.— An estate for
years is one which is limited in its duration to a
period fixed, or which may be made fixed and
certain. If it be in lands, it passes as realty in
this State. It may be for any number of years,
so that the limitation be within the rule against
perpetuities.
Cross References.— See 8 Cum. Dig. 27; 8 Enc. Dig. 547,
559. See notes to § 3687. As to definition of realty, see § 3617.
[ 1030 ]
As to detached realty becoming personalty, see § 3622. As
to estate for widowhood, see §§ 3664, 3685. As to when a
perpetuity is created, see § 3678. As to when relation of
landlord and tenant exists, see § 3691.
Leasehold as Realty. — A lease for a term of years is a
chattel real; it is personal estate and not real. At com-
mon law the term "real estate" does not include anything
short of a freehold. 2 Kent's Com. 342, 3 Id. 401. An estate,
for years in land, however, passes as realty under this sec-
tion. (This case was reversed in Central, etc., Ry. Co.
v. Wright, 248 U. S. 525, 39 S. Ct. 181, but this rule was
not affected.— Ed. Note.) Wright? v. Central, etc., Ry. Co.,
146 Ga. 406, 409, 91 S. E- 471.
A conveyance of a room for a stipulated sum to be kept
as a first class bar room is an estate for years in the prop-
erty— a purchase of an interest in the estate for a limited
period. Under this section, it passes an estate as realty.
Clark v. Herring, 43 Ga. 227, 230.
Where husband and wife rent a hotel together for a term
of five years or more, an estate in realty is acquired under
this section and the relation of tenants in common exists.
Schofield v. Jones, 85 Ga. 816, 11 S. E. 1032.
An Estate for Years Created. — Where a tenant after
making a parol contract for rent of land for three years had
sufficiently performed, the tenancy, though ordinarily void
under the statute of frauds (see § 3222), could not e
treated as a tenancy at will. Petty v. Kennon, 49 Ga. 468.
An estate for years may be bought and sold as any other
estate. Clark v. Herring, 43 Ga. 227; Wilson Mfg. Co. v.
Chamberlain, etc., Co., 140 Ga. 593, 79 S. E- 465.
§ 3686. (§ 3110.) Distinction from bailment.—
It differs, when applied to personalty, from a
contract for hiring, in this, that the latter is a
bailment conveying no interest in the property to
the bailee, but a mere right of use; when applied
to realty it differs from the relation of landlord
and tenant in this, that in the latter the tenant
has no estate, but a mere right of use, very
similar to the right of a hirer of personalty.
§ 3687. (§ 3111.) Rights of tenant.— An estate
for years carries with it the right to use in as
absolute a manner as a greater estate, but not to
the injury of the property or of the person en-
titled either in remainder or reversion; the same
acts of omission and commission which have
been heretofore prescribed as grounds of forfei-
ture of an estate for life will operate to the same
effect as against a tenant for years.
As to rights and liabilities of life tenant, see § 3666.
An estate for years is subject to levy and sale as any
other estate, under this section. Harms v. Entelman, 21
Ga. App. 295, 94 S. E- 276.
Where an estate for years was created under § 3685, un-
der this section, the owner has as absolute a right to use
the property, as if he had a greater estate, not injuring the
revenue. Clark v. Herring, 43 Ga. 227, 230.
A took an estate for years, for such an estate passes as
realty under § 3685, and "the owner has as absolute a right
to use the property, as if he had a greater estate, not in-
juring the revenue." Clark v. Herring, 43 Ga. 227. And the
seller's only remedy for unpaid purchase money would be
by a common law action, and not by distress, and in that
event the relation of landlord and tenant could not exist.
The interest of the tenant under the instrument would
cease and determine at any time upon the non-payment of
the rents, as set forth therein, and the landlord could re-
enter, oust the tenant and distrain for rent, which he could
not do if A's interest in said property was an estate for
years. In re O'Dowd, Fed. Case No. 10439.
§ 3688. (§ 3112.) Emblements.— A tenant for
years is not entitled to emblements, unless the
estate be terminated, before the period fixed, by
the happening of some contingency provided in
its creation, and without fault on the part of the
tenant.
As to right of tenant to emblements where relationship
of landlord and tenant exists, see § 3710.
A general custom governing a trade or business, can not
be proved for the purpose of depriving one of the contract-
ing parties of an absolute right explicitly secured to him
by the law of the State. Fleming v. King, 100 Ga. 449 (2)
§ 3689
LANDLORD AND TENANT
§ 3691
28 S. E. 239. If, therefore, the provisions of this section
have reference to landlords and tenants where the term
of the tenancy extends for less than five years and the es-
tate is created, then, under the rule just stated, no proof ot
mere custom would operate to give to the tenant the right
to emblements thus specifically denied. Carter v. Booth,
25 Ga. App. 796, 104 S. E. 910.
§ 3689. (§ 3113.) Expenses and repairs. — A
tenant for years is bound for all repairs or other
expense necessary for the preservation and pro-
tection of the property.
Cross References. — As to landlord's liability for damages
arising out of defective constructions, see § 3694. As to
landlord's liability for repairs, see § 3699. See 8 Cum. Dig.
47; 8 Enc. Dig. 580.
Where an estate for years is created, this section fol-
lowing the common law, makes the tenant bound for ill
repairs or other expense necessary for the preservation and
protection of the property. Mayer v. Morehead, 106 Ga. 434,
435, 32 S. E. 349.
Where farming lands were rented for a term of years and
the tenants agreed "to keep up all repairs at their own ex-
pense, fire and providential causes excepted," the whole
rent could be recovered, notwithstanding the total destruc-
tion, by accidental fire, of a gin-house situated on the rented
premises. Mayer v. Morehead, 106 Ga. 434, 32 S. E. 349.
§ 3690. (§ 3114.) Lease.— When one grants to
another an estate for years out of his own estate,
reversion to himself, it is usually termed a lease.
It may be confined to a particular interest in
lands, such as mining or agricultural, in which
event no other interest passes. If no object of
the lease is stated, the mining interest will not
pass unless the circumstances justify an implica-
tion of such an intention in the parties.
Cross References.— See 8 Enc. Dig. 559. As to when rela-
tion of landlord and tenant exists, see § 3691. As to rights
of tenant, see § 3695. As to right of way incidental to mov-
ing privilege, see § 798.
A lease proper is an estate for years, under this section.
Harms v. Entelman, 21 Ga. App. 295, 94 S. E. 276.
Where No Estate Passes.— A lease is where one grants
to another an estate for years out of his own estate, re-
version to himself. Under this contract, no estate in or
to the store-house passed out of the plaintiff to the de-
fendants. There was no contract for the sale of the store-
house, or for the sale of any interest in or concerning it
by the plaintiff to defendants. Hooper, etc. v. Dwinnell,
48 Ga. 442, 445.
Agreement to Pay Rent as Essential Element.— A con-
veyance of a room for a stipulated sum to be kept as a
first class bar room can hardly be called a lease, since it
wants one of the marked ingredients of a lease, the agree-
ment to pay rent. Clark v. Herring, 43 Ga. 227, 230.
Meaning of "Lessee" in Section and Prohibition Act Not
Identical.— Technically, the word "lessee" denotes the
holder of a contract for the possession and profits of lands
and tenements for a fixed term, for life, or at will under this
section. By the term "lessee," as used in § 20 of the
prohibition acts of 1917, is meant one who has some prop-
crty in the vehicle or conveyance which itself may be the
subject of condemnation, as distinguished from a mere
"bailee" with a special property in the vehicle or con-
veyance entrusted to him. Lang v. Hitt, 149 Ga. 667, 101
S. E. 795. Same case as Lang v. Hitt, 24 Ga. App. 714, 102
S. E. 136.
Illustrations of Lease.— A contract which grants to one
of the parties thereto the use and occupation of premises
for a definite term with the right to take brick clay from
certain land of the other party and manufacture the same
into merchantable brick, for a valuable consideration mov-
ing from the other party thereto, during a specified term
of years, is a contract of lease. Palmer Brick Co. v. Wood-
ward, 138 Ga. 289, 75 S. E. 480.
Cited in Hutchison v. Hodnett, 115 Ga. 990, 42 S. E. 422.
CHAPTER 5.
Of Landlord and Tenant.
§ 3691. (§ 3115.) Relation of landlord and ten-
ant exists, when. — When the owner of real estate
grants to another simply the right to possess and
[ 1031 ]
enjoy the use of such real estate, either for a
fixed time or at the will of the grantor, and the
tenant accepts the grant, the relation of landlord
and tenant exists between them. In such case
no estate passes out of the landlord, and the ten-
ant has only a usufruct, which he can not convey
except by the landlord's consent, and which is
not subject to levy and sale; and all renting or
leasing of such real estate for a period of time
less than five years shall be held to convey only
the right to possess and enjoy such real estate,
and to pass no estate out of the landlord, and to
give only the usufruct, unless the contrary be
agreed upon by parties to the contract, and so
stated therein. Acts 1870, p. 35.
Cross References. — See S Cum. Dig. 32; 8 Enc. Dm.
559. As to statute of frauds, see § 3222. As to creation by
parol, see § 3693. As to what constitutes an estate for
years, see § 3685. As to what is a lease, see § 3690. As
to power of hirer of personalty to re-let, see § 3485.
Editor's Note. — This section first appeared in the code of
1863. By the Acts of 1876 the scope of the section was ex-
panded by changing the word "land" to real estate. All
of the latter part of the section, beginning with "and all
renting or leasing of such real estate for a period of time
less than five years" was added by this act.
Extent of Change of Common Law. — It is not necessary
to declare exactly how far this section changes the com-
mon law idea of a tenant. We are inclined to think it
was only intended to declare that the case there put made
a case of the relation of landlord and tenant, and not to
say that the relation existed only in such a case. Burnett
& Bros. v. Rich & Co., 45 Ga. 211, 212.
It seems that this section changed the common law as to
the power of the tenant to sublet, for at common law he
could assign his interests. See post, this note, Garnard v.
Byard.
Creation of Relationship. — Where there is a sale or con-
tract of sale of title, the relation of landlord and tenant
does not exist, but it exists only when the use of the
land either for a specified time or at will, is granted. All-
read v. Harris, 75 Ga. 687, 688.
"To create the relation of landlord and tenant between
parties, a formal letting is not required. The relation may
arise by implication, and, as a general rule, it is sufficient
to create the relation if it appears to have been the inten-
tion of one to enter or occupy the premises in subordina-
tion to the title of the other. But the relation will never
be implied when the acts and conduct of the parties are
inconsistent with its existence. * * * A tenant is generally
defined as one who occupies the lands or premises of an-
other in subordination to that other's title, and with his
assent, express or implied." Sharpe v. Mathews, 123 Ga.
794, 797, 51 S. E. 706.
"The defendant was not in the possession of the land in
question, under a grant from the plaintiff simply to pos-
sess and enjoy the use of the land for any fixed period of
time, or at the will of the plaintiff as his tenant, but was
in possession of the land as a purchaser thereof from the
plaintiff, under a contract made between them for the sale
of the land, and the land so purchased by the defendant
and held by him under a bond for title, a part of the pur-
chase money having been paid, was subject to levy and
sale." Brown v. Persons, 48 Ga. 61, 62.
"The relation between the parties to a conveyance where-
by the one sells to the other the timber on land is that
of vendor and vendee, and not that of landlord and tenant;
and the conveyance is a deed, not a lease, although the
time within which the timber is to be cut, and removed is
limited to less than five years. Baxter v. Mattox, 106 Ga.
344, 32 S. E. 94; McRae v. Stillwell, 111 Ga. 65, 36 S. E.
604; Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574; Coody v.
Gress Lumber Co., 82 Ga. 793, 10 S. E. 218. In cases of
landlord and tenant, no estate passes out of the landlord
further than a mere usufruct which is not assignable with-
out the landlord's consent." McLendon Bros. v. Finch, 2
Ga. App. 421, 423, 58 S. E. 690.
Same — Necessity of Taking Possession. — This rule of law
undoubtedly fixes the , relation which existed between the
plaintiffs in error and A as that of landlord and tenant
where A rented for stipulated sum per month and gave his
note. The fact that A did not at any time occupy the
premises can have no effect on this relation, because the
owners of the property granted the use of the same for a
fixed time to A, who accepted that grant, and he was
3691
LANDLORD AND TENANT
§ 3691
bound for the rent. Hudson v. Stewart, 110 Ga. 37, 38, 35
S. F. 178.
Same — Distinction between Cropper and Renter — Liability
of Crop for Debts. — Where an owner of land furnishes it
with supplies and other like necessaries, keeping general
supervision over the farm, and agrees to pay a certain
portion of the crop to the laborer for his work, the laborer
is a cropper, and judgments or liens can not sell his part
of the crop until the landlord is fully paid; but where there
is a renting, and the relation of landlord and tenant exists,
an older judgment will subject the renter's crop, although
the landlord may have a parol contract with the tenant
by which it is stipulated that the crop is to be the land-
lord's until the debt for supplies is paid. Almand v. Scott
& Co., 80 Ga. 95, 4 S. F. 892. See §§ 3705-3707.
Same — Same — Establishment between Tenant and Crop-
per.— Where a tenant retained control and direction of the
farm, and croppers worked it under his direction and were
to receive a part of the crop as wages for their labor, the
relation between them and the tenant was not that of
landlord and tenant, but of master and servant. But
where the tenant made an additional and separate con-
tract with one of the croppers, by which it was agreed
that the cropper was to pay $60 for a crop which had been
begun and abandoned by another, work it and give the
tenant half, the remaining half to be bound for the $60,
this cropper became a renter of the land occupied by that
crop, and the title to the crop raised on it was in him.
Bryant v. Pugh, 86 Ga. 525, 12 S. F. 924.
Facts Establishing Relationship. — In this case, the rela-
tion of landlord and tenant exists, it being so expressly
stipulated, and this instrument has one of the most marked
ingredients of a lease, to wit: The agreement to pay rent;
thereby clearly creating the relation of landlord and ten-
ant. In re O'Dowd, 18 Fed. Cas. 593.
Where the owner of land puts another in possession
thereof under a parol contract to allow the latter to pur-
chase it at a given price and pay for it in annual install-
ments, but on condition that if he was not able to pay for
the land he should pay as rent for the same each year he
occupied it ten per cent, of the price agreed upon and the
taxes on the land, and the occupant of the land failed for
two years to make any payment to the owner, either as
purchase money or as rent, the relation of landlord and
tenant existed between the parties as to the second year's
occupation. Reddick v. Hutchinson, 94 Ga. 675, 21 S. F.
412.
Where a railroad company, by contract express or im-
plied, admits another company into the possession, use and
occupation, jointly with itself, of its depot, yards, yard-
tracks, and other terminal facilities, the relation of land-
lord and tenant is established between the two companies
and continues, if no term be fixed by contract, so long as
such joint possession, use and occupation may last. Rome
Railroad Co. v. Chattanooga, 94 Ga. 422, 21 S. F. 69.
Where complainants "rented and farmed out" all the
transportation privileges of X Company for 99 years, com-
plainants did not take an estate for years, but came with-
in the provisions of this statute, and became tenants hav-
ing the mere right of possession and use with no interest
in the property which was taxable, all estate therein sub-
ject to taxation remaining in the lessor. Louisville, etc.,
R. Co. v. Wright, 199 Fed. 454.-
A contract for land for a stipulated rent for five years cre-
ated the relation of landlord and tenant. Napier v. Var-
ner, 149 Ga. 486, 101 S. F. 579.
The owner of the land granted to the defendant in fi. fa.
the right to possess and enjoy the use of such land, the
grant was accepted, and the relation of landlord and tenant
arose between them under this section. Taylor v. Coney,
101 Ga. 655, 658, 28 S. F. 974.
If the owner of land rent it to one person for the year
at a specified price the relation of landlord and tenant
exists between them by contract under this section. And
the tenant has no right to sub-rent it. Willingham v.
Faircloth, 52 Ga. 126.
Same — Must Hold under Landlord to Constitute. — Ac-
cording to the plaintiff, the title to the property was not
in him, but was in the receiver in the United States court;
the entry upon the lands by the defendant was not under
him, but was expressly over his objection and protest, and
the possession of the defendant was adverse to him as well
as to the receiver; in other words, relatively to the plain-
tiff and to the receiver, the defendant was nothing but a
trespasser, and the relation of landlord and tenant, there-
fore, could not have existed between him and the defend-
ant, or between the defendant and the receiver, by the ex-
press terms of this section. Hearh v. Huff, 6 Ga. App. 56,
64 S. F. 298.
Usufruct Not Liable to Levy and Sale. — A contract of
rental with only a usufruct to the tenant, would not be
subject to levy and sale under this section. Harms v.
Fntelman, 21 Ga. App. 295, 94 S. F. 276.
Same — Transfer to Trustee in Bankruptcy. — Where a
lease to a bankrupt for five years, though containing a
covenant against assignment and subletting, did not ex-
pressly prohibit such transfer nor provide for termination
on the transfer to the lessee's interest by bankruptcy pro-
ceedings, such a transfer to the lessee's trustee in bank-
ruptcy was an act of the law and did not terminate the
lease, especially under this section inferentially providing
that a lease for five years confers a legal estate on the
lessee. In re Gutman, 197 Fed. 472.
Power of Tenant to Sublet, Convey or Assign. — Under
this section, the tenant has no right to impose a sub-
tenant upon the landlord without his consent; and if it is
attempted, we hold that the sub-tenant becomes the tenant
of the landlord, if he elects to recognize him as such, and
not the tenant of the tenant who placed him upon the
premises, without the consent of the landlord; and the
landlord, so recognizing the sub -tenant, may proceed
against him for holding over; or he may refuse to recog-
nize the tenancy and proceed to expel the person placed
upon the premises by the tenant, without his consent, as
an intruder, in any manner prescribed by law for the ex-
pulsion of trespassers or intruders. McBurney v. Mcln-
tyre, 38 Ga. 262, 263.
Under this section a leasing of real estate for less than
five years passes no estate out of the landlord; the tenant
has only a usufruct, and he can neither sublet the prem-
ises, convey his usufructuary interest, nor assign his
lease, without the landlord's consent. Hudson v. Stewart,
110 Ga. 37, 35 S. F. 178; DeFoor v. Stephens, 133 Ga. 617;
619, 66 S. F- 786.
The defendants had only the usufruct of the storehouse
(as the plaintiff's tenants, where they rented it for three years
by parol and held it for two years, which they could not
convey to another, except by the plaintiff's consent.
Hooper v. Dwinnell, 48 Ga. 442, 445.
When the landlord rents land and tenements to another
for a fixed time, or at the will of the landlord, the tenant
has only a usufruct in the premises, which he can not con-
vey to another, except by the landlord's consent. Se'aly v.
Kuttner, 41 Ga. 594.
Whether a contract between X and W was one of "hire"
or one of "lease" is immaterial because if of hire X had
no right to relet without W's consent under § 3485, and if
a lease he had no such right under this section. Butts
Bros. v. Fnnis, 148 Ga. 154, 96 S. F. 131.
Same — Subtenant as Tenant of Landlord. — In the case of
McConnell v. Fast Point Land Company, 100 Ga. 129, 28
S. F. 80, this court ruled that it was at the election of the
owner to make a subtenant his tenant, and when the
owner so elects he must proceed against such subtenant
as his own tenant; and in McBurney v. Mclntyre, 38 Ga.
261, it was ruled that a subtenant becomes the tenant of
the landlord if he elects to recognize him as such, and
not the tenant of the tenant who placed him upon the
premises without the consent of the landlord. So that,
in order for the relation of landlord and tenant to exist
between the owner of the property and a subtenant, some
affirmative action must be had by the landlord showing
that he elected to treat the subtenant as his tenant. It
is not sufficient that the landlord has knowledge and makes
no objection. Hudson v. Stewart, 110 Ga. 37, 39, 35 S. F-
178.
Same — Landlord's Permission Constitutes Right. — A ten-
ant can sublet only with the landlord's consent, and the
terms and conditions of the subtenant's right to possess
and enjoy the use of the demised property must be found
in the landlord's permission. And where he has given
such permission he has no right to complain if his in-
surance is thereby increased. Dodd v. Ozburn, 128 Ga.
380, 57 S. F. 701.
Same — Liability of Subtenant to Tenant. — One who rents
land and sublets it to a third person stands in the rela-
tion of landlord to the subtenant and may have a distress
warrant for his rent. Harrison v. Guill, 46 Ga. 427.
Aside from any question of what modification of the
common law was made by this section and aside from
statutory regulation, as a general rule, established by the
weight of authority, if one has a leasehold estate and a
right to assign it, and makes to another a lease covering
his whole term, it will be treated as an assignment
relatively to the landlord, so as to establish a privity be-
tween the transferee and the landlord, and to authorize
the latter to hold the former upon covenants running with
the land. But, as between the original lessee and his
sublessee, even though the former demise his whole term,
if the parties intend a lease, the relation of landlord and
[ 1032 ]
§ 3691
LANDLORD AND TENANT
§ 3692
tenant, at least as to all but strictly reversionary rights,
will arise. Potts -Thompson Liquor Co. v. Potts, 135 Ga.
451, 69 S. E. 734.
Same — What Amounts to an Assignment. — The lessee's
association of a third person with himself as a partner is
not an assignment of the lease under this section. The
incoming partner may not have a legal interest in the
lease, because it was not formally assigned to him by the
tenant with the landlord's consent; but as he was on the
premises engaged in the business with the landlord's
tenant, with the landlord's knowledge and consent, he was
not a trespasser. He was at least a licensee whose rights
as such the landlord was bound to respect. DeFoor v.
Stephens, 133 Ga. 617, 619, 66 S. E- 786.
Same — At Common Law. — At common law, a tenant had
the right to assign his lease, but he could not substitute
another paymaster in his stead, without the consent and
acceptance of the landlord. Garner v. Byard, 23 Ga. 289.
When "Tenant's Right to Convey" Applicable. — A con-
veyance of a room for a stipulated sum to be kept as a
first class bar room is clearly not a mere contract of
writing, so as to give the tenant only an usufruct, which
can not be conveyed to another without consent of the
landlord as provided by this section. This section deny-
ing- the right of a tenant to convey, applies only to the
case put, to-wit: when the tenant has a mere use, but
no estate, as is the case here. Clark v. Herring, 43 Ga.
227, 230.
This section declares that the tenant can not convey his
usufruct without the landlord's consent, and that it is not
subject to levy and sale. We are quite clear, therefore,
that the dissolution of the firm did not affect B's right,
as assignee of the rent notes, to look to the partner in
■possession for the payment of the rent out of the stock
in trade in the store, or the proceeds of the business.
Boone v. Sirrine, 38 Ga. 121, 123.
When Relationship Created by Parol.— When the defend-
ant, under the parol contract, took possession of the
rented premises, the relation of landlord and tenant was
established between the plaintiffs and him under this
section. Nicholes v. Swift, 118 Ga. 922, 924, 45 S. E. 708.
Effect of Attempted Conveyance.— A lessee can not,
without the consent of his landlord, transfer his lease; and
the transferee in such a case would be a mere intruder and
subject to be summarily ousted by the landlord. Bass v.
West, 110 Ga. 698, 36 S. E. 244.
Timber Conveyance Distinguished from Lease. — The con-
veyances of timber to be removed within a certain time
are distinguishable from leases, by reason of the fact that
they are assignable without the consent of the grantor.
McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604; Baxter v.
Mattox, 106 Ga. 344, 32 S. E. 94; McLendon Bros. v.
Finch, 2 Ga. App. 421, 424, 58 S. E. 690.
Each Partner Liable to Landlord.— Where the relation-
ship exists between landlord and copartners as tenants,
the owner of the land would have been entitled to look to
each of the parties for the preservation of his property
and payment of the rents. Boone v. Sirrine, 38 Ga. 121;
Kraft v. Kendry, 150 Ga. 155, 103 S. E. 169.
Tenant's Rights Superior to Lienor. — Where the owner
of property incumbered it with a security deed and a con-
tractor's lien, and thereafter leased a portion of it to a
third person for a term of years, . the lessee had a right
to enjoy the property for term of lease under this section,
and the holders of the liens will be compelled to sell such
property in such a manner as not capriciously, unneces-
sarily, and unjustly to interfere with such leasehold in-
terest. Western Union Tel. Co. v. Brown, etc., Co., 154
Ga. 229, 114 S. E. 36.
Tenancy as Part of Tenant's Assets Where the tenancy
of the storehouse occupied by the assignors was by the
year, they could not sublet the same without the consent
of their landlord; they had no estate in it, and therefore
it could not have been a part of their assets. Stultz &
Blair v. Fleming, 83 Ga. 14, 9 S. E- 1067.
Effect of Lease for Over Five Years.— A lease of real
estate for a period of five years passes such an estate
from the landlord to the tenant as he may convey or con-
tract to convey to another with all the incident rights
and duties of the tenancy. Perry v. Paschal, 103 Ga. 134,
140, 29 S. E. 703; Robinson v. Perry, 21 Ga. 183, 68 Am.
Dec. 455; Jones v. Fuller, 27 Ga. App. 84, 107 S. E. 544.
Holding Over as Renewal of Contract.— Where after the
expiration of a lease for 20 years, the tenants held over an-
other year without objection on part of landlord, the hold-
ing over did not entitle them to another twenty years ten-
ancy but constituted them tenants at sufferance. Sutton v.
Hiram Lodge, 83 Ga. 770, 10 S. E. 585.
Covenant of Renewal Construed. — While, all renting or
leasing of real estate for a period of time less than five
years shall be held to convey only the right to possess and
enjoy such real estate, etc., as provided in this section,
yet, as against a purchaser from the landlord, with no
tice, the rule that "The covenant on the part of the lessor
to renew is a covenant real, the burden of which rests
with the reversion, and may therefore be enforced against
the grantee of the reversion," prevails. Parker v. Gorta-
towsky, 127 Ga. 560, 564, 56 S. E. 846.
Tenant May Protect Interests in Property. — A tenant of
premises situated in a city, although he has no estate in
the land, is the owner of its use for the term of his rent
contract, and can recover damages for any injury to such
use occasioned by the erection and maintenance of a pub-
lic nuisance in the street adjacent to or in the immediate
neighborhood of the premises. Bentley v. Atlanta, 92 Ga.
623, 18 S. E. 1013.
Cited in Hutcheson v. Hodnett, 115 Ga. 992, 42 S. E. 422.
§ 3692. (§ 3116.) Implied contract to pay rent.
— When title is shown in the plaintiff and occu-
pation by the defendant, an obligation to pay rent
is generally implied; but if the entry was not
under the plaintiff, or if possession is adverse to
him, no such implication arises.
Cross References.— See 7 Enc. Dig. pp. 222-224, 8 Enc.
Dig. p. 569. As to liability of subtenant for rent, see note
to § 3691. As to a distress for rent, see § 3700. As to im-
plied promise to pay where one receives property or valu-
able services from another, excepting near relatives, see §
5513.
Origin of Section. — In Mercer v. Mercer, 12 Ga. 421, it
was held: "Assumpsit for use and occupation lies generally
upon contract, either express or implied. A contract may
be implied from the title of the plaintiff and the occupa-
tion of the defendant. This being proven, a contract will
be inferred." This ruling was followed in Clark v. Green,
35 Ga. 92, and Lathrop v. Standard Oil Co., 83 Ga. 310,
9 S. E- 1041. The principle announced in these decisions
was codified as this section. Lenney v. Finley, 118 Ga.
718, 45 S. E. 593.
Same — Section a Rule of Evidence. — In Lathrop v. Stand-
ard Oil Co., it was said that a contract to pay rent would
be implied upon proof of title in the plaintiff and occupa-
tion by the defendant, "without more." These decisions
and this section of the code merely announce a rule of
evidence as to what proof will authorize the implication
of the relation of landlord and tenant and a consequent
implied obligation to pay rent. Lenney v. Finley, 118
Ga. 718, 45 S. E. 593.
No Relationship Implied in Successor of Tenant at Will.
— Action for use and occupation of land will not lie against
successor to tenant at will (a railroad) for entry was not
under plaintiff. Atlanta, etc., R. Co. v. HcHan, 110 Ga.
543, 35 S. E. 634.
Where Relationship Established between Vendor and
Vendee. — If, after a sale under a power of sale in the in-
strument the grantor and his tenant remain in possession
of the premises, an obligation on the part of the grantor
in the security deed and his tenant to pay rent will be im-
plied, under this section. The grantee in such deed thus
becomes the landlord, and the grantor, or the latter's
tenant, the tenant of the purchasers. Chason v. O'Neal,
158 Ga. 725, 733, 124 S. E-* 519.
Where one party conveys land to another, and it is
agreed between them that the vendor shall remain in
possession until a fixed time when he shall surrender pos-
session to the vendee, the relation of landlord and tenant
exists between the two by implication under this section,
the vendor being tenant. Prichard v. Tabor, 104 Ga. 64,
30 S. E. 415.
Where a party owes another a debt and gives a deed
absolute on the face, but remains in possession, if the deed
were an absolute conveyance the vendor would be liable
for. rents under this section. Hands v. Matthews, 153 Ga.
75, 111 S. E. 408.
Obligation to Pay Reasonable Rent Implied. — Where one
enters into possession of the premises of another under the
relation of a tenant, and no amount of compensation is
agreed upon, the law will imply, under this section, an
undertaking to pay such as will be fair and reasonable,
which may be collected by distress warrant sued out by the
landlord on an affidavit setting forth and claiming a spe-
cific amount as rent due under section 370, the tenant
having, of course, the right to controvert the amount of
the claim by counter-affidavit, as may be done in other
cases of distress warrants. Rome Railroad Co. v. Chatta-
nooga, etc., R. Co., 94 Ga. 422 (1) (21 S. E. 69); Taylor v.
Coney, 101 Ga. 655, 658 (28 S. E. 974). This rule does not
apply if the entry was not under the plaintiff or if the
[ 1033 ]
§ 3693
LANDLORD AND TENANT
§ 3693
possession is adverse to him. Lenney v. Finley, 118 Ga.
718 (3) (45 S. E. 593); Atlanta etc., Ry. Co. v. McHan, 110
Ga. 543 (35 S. E. 634); New v. Quinn, 31 Ga. App. 102,
119 S. E. 457.
"In the case of Rome R. Co. v. Chattanooga, etc., R.
Co., 94 Ga. 422, 21 S. E- 69, this court held that where one
person obtains and uses another's property, 'if no amount
of compensation be agreed upon, the law will imply an
undertaking to pay such amount as may appear to be
fair and reasonable. Under the statutory system es-
tablished by the code, this compensation is, in its nature
and character, rent.' " Taylor v. Coney, 101 Ga. 655, 658,
28 S. E. 974.
Possession Adverse to Landlord. — Distress for rent will
lie only where the relation of landlord and tenant exists
between the parties. Cohen v. Broughton, 54 Ga. 296;
Lathrop v. Standard Oil Co., 83 Ga. 307, 9 S. E. 1041.
Where the entry is under one holding adversely to another,
the latter is not the landlord of the tenant under this sec-
tion. Sims v. Price, 123 Ga. 97, 50 S. F. 961.
Same — Where Title in Receiver in Bankruptcy. — The title
to the property was not in plaintiff but was in the receiver
in the U. S. court; the entry upon the lands by the de-
fendant was not under him, but was expressly over his
objection and protest, and the possession of the defendant
was adverse to him as well as to the receiver; in other
words, relatively to the plaintiff and to the receiver, the
defendant was nothing but a trespasser, and the relation
of landlord and tenant, therefore, could not, under the
law, have existed between him and the defendant, or be-
tween the defendant and the receiver by the express terms
of this section. Hearn v. Huff, 6 Ga. App. 56, 58, 64 S.
E. 298.
If A owns land that is in the occupancy of B, the law
will imply a liability on the part of B to pay rent for the
land: but no such presumption can arise where B expressly
disclaims holding possession under A. Jackson & Bros. v.
Mowry, 30 Ga. 143.
Lessor Has No Right of Action against Third Party for
Use.— "In Southern R. Co. v. State, 116 Ga. 276, 42 S. E.
508, it was held: 'A lessor of real property has no right of
action against a third party for the use and occupation of
a portion of the leased premises during the period of the
lease and at a time when the lessee was entitled to the
possession of the property. Where there is no injury to
the freehold, the right of action, if any, is in the lessee.' "
Lenney v. Finley, 118 Ga. 718, 721, 45 S. E. 593. But see
note to § 3691.
Lease in TTiird Party Excludes Presumption of Relation-
ship.— "When it appears that a third party has the right,
under an express lease contract with the plaintiff, to" the
use and occupancy of the premises during the time for
which rent is claimed against the defendant, there is no
room for the implication that the relation of landlord and
tenant exists between the plaintiff and the defendant."
Lenney v. Finley, 118 Ga. 718, 721, 45 S. E- 593.
Facts Rebutting Presumption of Relationship. — To main-
tain an action for rents there must exist between the par-
ties the relation of landlord and tenant. But, while in the
absence of an express contract creating this relation, an
obligation to pay rent is generally implied, "when title is
shown in the plaintiff and occupation by the defendant,"
where the purchaser of a stock of goods from trustee in
bankruptcy continued in possession, no such contract is
implied. Stevens v. McCurdy, 124 Ga. 456, 457, 52 S. E-
762.
Cited in Sharpe v. Mathews, 123 Ga. 798, 51 S. E- 706.
§ 3693. (§ 3117.) How created. — Contracts
creating the relation of landlord and tenant for
any time not exceeding one year may be by pa-
rol, and if made for a greater time shall have the
effect of a'tenancy at will.
Cross References. — See 6 Cum. Dig. pp. 444, 445; 6 Enc.
Dig. p. 575, 8 Cum. Dig. p. 30, 8 Enc. Dig. pp. 555, 556. As
to presumption as to length of tenancy where no time is
specified in contract, see § 3707. As to the Statute of
Frauds, see § 3222.
Editor's Note. — This section is probably explanatory of
paragraphs 4 and 5 of the Statute of Frauds as applied to
contracts between landlords and tenants (§ 3222). Para-
graph 4 of that statute provides that "Any contract for
the sale of land, or any interest in or concerning them"
is within the statute. And paragraph 5 provides that "Any
agreement * * * that is not to be performed within one
year" is within the statute. Now this section saves
contracts which are made between landlords and tenants
for a year or less from the operation of par. 4 by applying
par. 5. Although it leaves such contracts which are for a
[ 1034 ]
longer period of time than orug- year within the operation
of either paragraph of the statute, it provides that where
the tenant takes possession under such void contract, a
tenancy at will is created. This is merely an application
of a common-law principle to such a case, as explained in
the note below from Hayes v. Atlanta, 1 Ga. App. 25, 57
S. E. 1087.
Common Law Doctrine Codified.— The lease was a void
lease having been made for 2 years, but the tenant's en-
try into possession under it and the landlord's reception of
the rent created a status which has been determined from
early times by common law decisions, and in our juris-
prudence by the ruling of our Supreme Court, as well as
by this section. Out of the common-law doctrine that the
making of a deed or feoffment which was never rendered
complete by livery of seisin entitled the grantee to enter,
but that his status was that of a tenant at will (see Coke
on Littleton, 56, b, § 70), was developed from the doctrine
that entry under a void lease created a similar relation. This
section is a codification of the common law. Entry under
an offer to lease creates the same relation. Weed v.
Morgan, 88 Ga. 686, 15 S. E- 836; Hayes v. Atlanta, 1 Ga.
App. 25, 29, 57 S. E- 1087.
Contract May Be Made before Year Begins. — A contract
establishing the relation of landlord and tenant for 'one
year, though made before the year begins, may be in
parol regardless of the holding in Alwood v. Norton, 31 Ga.
507; Steininger v. Williams, 63 Ga. 475; Ridgeway v.
Bryant, 8 Ga. App. 564, 70 S. E. 28; Gay v. Peak, 5 Ga.
App. 583, 63 S. E. 650; Render v. Harris, 25 Ga. App. 302,
103 S. E. 179.
Same — Early Holding. — A verbal contract made on the
14th December, 1856, for the rent of house and lot, for the
year 1857, is an agreement not to be performed within the
space of one year from the making thereof, and, therefore,
void under the statute of Frauds, etc. Atwood v. Norton,
31 Ga. 507.
Tenancy from Year to Year. — Defendant was a tenant
from year to year, and there was no necessity for such a
contract to be in writing. Springfield Fire etc., Ins; Co. v.
Price, 132 Ga. 687, 697, 64 S. E. 1074.
Case Held to Create Contract for Year. — The evidence
authorized a finding that, after the expiration of the original
written lease between the parties, a new parol contract
was entered into by them for the rent of the property for
another year which was valid under this section. King v.
Pattillo, 19 Ga. App. 59, 90 S. E. 1033.
Cases Held to Create Contract for Longer Than Year
— Effect of Entering under Same. — The evidence authorized
the inference that the rental contract was in parol and for
a term longer than one year and thus a tenancy at will
under this section. Beveridge v. Simmerville, 26 Ga. App.
373, 106 S. E- 212.
Parol contract for a period of three years held to create
a tenancy at will. Hooper v. Dwinnell, 48 Ga. 442.
Where X was to rent land for a term of five years but
Y., the landlord, failed to sign the lease as modified by
him, but he entered and paid notes for rent and did the
same the following year, only a tenancy at will was cre-
ated. Beasly v. Lee, 155 Ga. 634, 117 S. E- 743.
Where there is a verbal contract for a lease for three
years, at a stipulated monthly rate, and the tenant pays
the rent as agreed upon by the month, it is a tenancy at
will under this section. Western Union Tel. Co. v. Fain,
52 Ga. 19.
According to the provisions of this section the evidence
of the defendant had the effect of constituting him a ten-
ant at will, where he testified that the tenancy was for
the balance of the current year, "with the privilege of
another, and as long as I paid my rent." Abbott v.
Padrosa, 136 Ga. 278, 71 S. E. 419.
Same — Sometimes Held to Create Tenancy from Year to
Year. — A parol lease of lands for more than three years is
void by the Statute of Frauds, and has the force and ef-
fect of an estate at will, which for the purposes of notice
to quit, and some other purposes, has been by judicial con-
struction converted into a tenancy from year to year.
Cody v. Quarterman, 12 Ga. 386.
Same — Term Depending upon Indefinite Contingency. —
As the term of the lease in the case at bar is indefinite,
depending upon a contingency, and can not extend beyond
a year solely by vigor of the parol agreement, under this
section, the plaintiff sustained the relation of a tenant at
will. Anthony Shoals Power Co. v. Fortson, 138 Ga. ^60,
462, 75 S. E. 606.
Same — Where Over One Year's Rent was Contracted for
Improvements. — A rental contract whereby the rent was to
be applied to payment for certain improvements made by
the tenant is for a longer term than one year where the im-
provements amounted to more than rent for a year and
§ 3694
LANDLORD AND TENANT
§ 3694
therefore created a tenancy under this section. Sikes v.
Carter, 30 Ga. App. 539, 118 S. E. 430.
Same — Where Agent's Authority Was Not Under Seal. —
Since an agent's authority to sign a sealed contract must
be in writing, the making of a lease for a longer term than
one year by him is void and hence an entering of the
principal under such a contract creates a tenancy at will
under this section. Hayes v. Atlanta, 1 Ga. App. 25, 57
S. E. 1087.
Section Construed with Statute of Frauds. — Where the
tenant surrendered a part of the rented premises upon the
expiration of a three year lease in consideration that the
landlord lease him the remaining premises for three years,
the landlord taking over the surrendered premises, con-
stituted such part performance as to take the contract out
of the statute of frauds, but it became a tenancy at will
under this section. (Dissenting opinion), Woodward v.
Stamos, 24 Ga. App. 183, 100 S. E. 232; Davis v. Potts, 24
Ga. App. 184, 100 S. E. 231.
Same — Part Performance Does Not Affect Section. — If
part performance such as mere possession and occupation
of the rented premises by the tenant could have the effect
of taking the contract out of the statute of frauds and
making it binding upon the tenant during the term covered
by the parol contract, this section would be a nullity in so
far as it applies to contracts for more than one year.
Under this section such a contract creates a tenancy at
will which would not begin until the tenant had entered into
possession of the premises. Nicholes v. Swift, 118 Ga.
922, 925, 45 S. E. 708.
Although an agreement was in parol, it was removed, by
execution, from the operation of the statute of frauds; and
this is so irrespective of whether such second assignee be-
came a tenant at will under this section or for the period
of the written lease. Mendel v. Barrett & Son, 32 Ga.
App. 581, 124 S. E- 107.
Necessity of Pleading Section. — Where a person expects
to take advantage of the statute of frauds making a lease
for a term longer than 3 years void (it has been changed
to one year, see § 3222), he must plead it. It is a safe rule
to always plead the statute. McDonald v. Banks, 13 Ga.
458. Although this case, which was decided before the
code, is construing the statute of frauds as applied to a
lease of land, it is probably just as applicable to this sec-
tion, for the section is largely declaratory of the statute.
(See ante this note, Editor's Note.)
Cited in Tatum v. Padrosa, 24 Ga. App. 259 (1), 100 S. E.
653.
§ 3694. (§ 3118.) Landlord not liable for negli-
gence of tenant. — The landlord, having fully
parted with possession and right of possession,
is not responsible to third persons for damages
resulting from the negligent or illegal use of the
premises by the tenant. But he is responsible to
others for damages arising from defective con-
struction, or for damages from failure to keep
the premises in repair.
Cross References. — See 8 Enc. Dig. p. 580. As to liability
of owner for repairs in tenancy for years, see § 3689. As
to liability of landlord for repairs and improvements, see
§ 3699. As to when "Owner" liable to keep premises safe,
see § 4420.
Editor's Note. — This section overlaps with § 3699 as to
the landlord's duty and liability for repairs, and the courts
have generally construed them together, failing to draw
any line as to when the one or the other is applicable. It
appears from reading them that this section is intended to
deal with the landlord's liability to third persons for dam-
ages arising either out of defective construction or ill re-
pairs, while § 3699 deals with the rights and duties be-
tween the parties. But the courts have recognized no such
distinction. From the cases construing and applying them,
it is evident that § 3699 is considered as changing the
common law rule by shifting the responsibility of keeping
the premises in repair upon the landlord. This duty be-
ing placed upon him by it, this section makes him liable
for any injuries sustained by either the tenant or third
persons because of a failure to perform these duties.
The cases dealing with the rights and duties of the land-
lord and tenant to each other as to the repair of the
premises will be found in the note to § 3699, -while the
note to this section pertains to the landlord's liability for
injuries resulting from defective constructions or ill re-
pair either to the tenant, his family, or third persons.
All the cases dealing with defective constructions are
dealt with here. The notes of the two sections should be
studied in conjunction with each other.
Origin and Construction of Section.— Under this section,
which is a mere codification of the principles laid down in
White v. Montgomery, 58 Ga. 204, and Friedenburg v.
Tones, 63 Ga. 614, a landlord is responsible to third per-
sons both for damage arising from defective construction
and for damage arising from failure to keep the premises
in repair. As to positive misfeasance in construction, he
is subject to the same rule which is announced in Bruns-
wick v. Braxton, 70 Ga. 193. Monahan v. National Realty
Co., 4 Ga. App. 680, 685, 62 S. E. 127.
This section was designed simply to embody a rule of
law which was well settled and well understood at the
time of its codification, and not to enlarge the duty de-
volving upon landlords with respect to the making of re-
pairs, nor to impose upon them a harsher rule of respon-
sibility than that to which they were already subject.
Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 904, 38 S.
E. 204.
Same — Change of Common-Law Rule. — The common-law
rule that the tenant must keep the premises in repair is
no longer of force in Georgia, since our code distinctly pro-
vides that the landlord is bound to keep the premises in
repair. Roach v. LeGree, 18 Ga. App. 250, 251, 89 S. E-
167.
When Section Applicable to Exclusion of § 4420. — The
word "owner," as used in § 4420, is not synonymous with
"landlord," as the latter ^word is used in this section and
where the owner of land has fully parted with both pos-
session and right of possession by any lawful contract of
rental, his liabilities are those prescribed by this section.
In such a case § 4420 is without application. It is other-
wise where the possession or the right of possession is not
fully parted with. Augusta-Aiken R., etc., Co. v. Hafer,
21 Ga. App. 246, 94 S. E. 252.
Duty and Liability of Landlord for Repair. — In the case
of Ross v. Jackson, 123 Ga. 657 (51 S. E. 578), it is said:
A landlord is not an insurer, but he is under a legal duty
to keep the rented premises in repair, and is liable in dam-
ages to a person who receives injury while lawfully upon
the premises and who is in the exercise of due care, if the
injury arises because of the defective construction of a
building erected on the premises by the landlord, or be-
cause of his failure to repair defects of which he knows
or in the exercise of reasonable diligence ought to know.
Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (38 S. E-
204); Stack v. Harris, 111 Ga. 149 (36 S. E- 615); Crook v.
Foster, 142 Ga. 715, 718, 83 S. E. 670.
Same — After Lapse of Reasonable Time. — If, after notice
of the defective condition of the premises and after the
lapse of a reasonable time in which to make the needed
repairs, the repairs are not made, the landlord will be lia-
ble to the tenant or a member of his family for damages
occasioned by the disrepair of the premises, if the injured
party's own negligence did not bring about the injury.
Beal v. Hanlon, 123 Ga. 642, 51 S. E- 579.
Same — Where Tenant Makes Repairs. — The owner of
property is liable for injuries caused by defective repairs
made by the tenant in possession, where the law imposes
upon the owner the duty of making such repairs, or where
the tenant is authorized by the owner to make the repairs.
Byne v. Mayor, 6 Ga. App. 48, 64 S. E. 285.
Same — Where Made Before Tenancy. — A landlord would
be responsible for injuries to a tenant occasioned by de-
fects in the structure either when the landlord knew of
such defects "before the tenancy was created" or dis-
covered the existence of such defects after the tenancy was
created, and especially, would this be true if the landlord,
after such discover}', attempted himself unsuccessfully to
repair such defects when the tenant had no notice, actual
or construccive, of such defective condition. The decision of
the Supreme Court in Ross v. Jackson, 123 Ga. 657, Si S. E.
578, properly construed, does not limit the responsibility of
the landlord for improper construction to knowledge actual or
constructive, of the defective condition "before the tenancy
was created." Marr v. Dieter, 27 Ga. App. 711, 109 S. E.
532.
Notice — Where Landlord Not in Possession. — "As to the
damages which may be recovered where there is a failure t
to keep the premises in repair and where the landlord has
parted with the possession, notice of the defective condi-
tion of the premises must, of course, be brought home to
the landlord; and hence it was held in Ocean Steamship
Co. v. Hamilton, 112 Ga. 901 (38 S. E. 204), that the land-
lord was 'not liable because of a failure to repair a defect
of which he neither knew nor ought, in the exercise of rea-
sonable diligence, to have known.' The case of Stack v.
Harris, 111 Ga. 149 (36 S. E. 615), is also a case where lia-
bility was insisted on upon the ground that there was a
failure of the landlord to keep the premises in repair, and
the point decided was that liability results not only where
[ 1035 ]
§ 3694
LANDLORD AND TENANT
§ 3694
a landlord has actual notice, but where the circumstances
are such as to require him to make an investigation which
would result in discovery of the defects." Monaham v.
National Realty Co., 4 Ga. App. 680, 686, 62 S. F. 127.
While under this section a landlord is responsible to a
servant of the tenant "for damages arising from defective
construction, or for damages from failure to keep the
premises in repair," he is not liable because of a failure
to repair a defect of which he neither knew nor ought to,
in the exercise of reasonable diligence, have known.
Properly construed, this section does not make a landlord
responsible as an insurer, but liable only in the event he
fails to comply with his statutory duty of keeping the
premises in repair. The provisions of this section were in
large part codified from the decision of this court in White
v. Montgomery, 58 Ga. 204, in which it was clearly ruled
that the duty of a landlord to make repairs did not arise,
unless he either knew from personal observation of the ex-
istence of the defects, or was in some manner put upon
notice thereof. In delivering the opinion of the court,
Jackson, J., cited approvingly the case of Guthman v.
Castleberry, 48 Ga. 172, 49 Ga. 273, wherein it was held
that before a landlord was under a duty of making re-
pairs, notice to him of the need thereof was requisite, un-
less he was himself in a position to know that the making
of such repairs was necessary. To the same effect, see
Whittle v. Webster, 55 Ga. 180^ and note the dictum of
Bleckley, J., in Driver v. Maxwell, 56 Ga. 11, to the effect
that a landlord is bound to keep the rented premises in a
condition reasonably fit for the purposes for which it was
intended the same should be used, "on proper notice from
his tenant." See also Stack v. Harris, 111 Ga. 149, 36 S.
F. 615; Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 903,
38 S. F. 204.
This principle is applicable to an amusement park where
a Railway Co. is landlord, running its lines to the park.
Augusta-Aiken R., etc., Corp. v. Hafer, 21 Ga. App. 246,
94 S. F. 252.
Before the landlord of a wharf is liable for a defect
therein, he must be shown to have notice. Ocean Steam-
ship Co. v. Hamilton, 112 Ga. 901, 38 S. F. 204.
Same — Amount of Care in Making Repairs. — A landlord
making repairs on the rented premises, either voluntarily
or in compliance with his statutory obligation, is required
to use due care to leave the repaired portion free from de-
fects. See notes in 34 L. R. A. (N. S.) 806. Marr v.
Dieter, 27 Ga. App. 711, 109 S. F- 532.
The evidence showed a latent defect in the mantel-piece
in a room of the rented house, which caused it to fall upon
the plaintiff, injuring her foot. It appears that the land-
lord actually discovered that th'e mantel was defective and
himself attempted to repair it. Subsequently to his effort
to make the repairs the injury occurred from the falling
of the mantel. These facts would warrant a verdict for
the plaintiff for damages due to improper repairs as the
proximate cause of the injury, in the absence of notice by
the tenant or by the plaintiff of the defective condition of
the mantel after the landlord had attempted to repair it.
McGee v. Hardacre, 27 Ga. App. 106, 107 S. F. 563; Marr
v. Dieter, 27 Ga. App. 711, 109 S. F. 532.
Liability for Defective Construction — Where Predecessors
Did Construction. — "The liability of a landlord for defective
construction exists only in cases where the structure is
built by him in person or under his supervision or direc-
tion. If a building were defectively constructed by a pre-
decessor in title, and the landlord knew or by the exercise
of reasonable diligence could have known of its improper
construction before the tenancy was created, he would be
answerable to the tenant, or to any one lawfully on the
premises by invitation of the tenant, for injuries sustained
by reason of his failure to put the premises in a safe con-
dition, if the person sustaining the injuries could not have
avoided the same by the exercise of ordinary care." Ross
v. Jackson, 123 Ga. 657, 659, 51 S. F- 578.
Same — What Constitutes Defective Construction. — Where a
landlord has fully parted with both possession and right of
possession, he is responsible to others under this section
only for damages arising from defective construction; and
neither the mere juxtaposition of a toilet and elevator nor
the absence of lights in the passage-way to the toilet at
night constitutes such a defect. Smith v. Inman, 32 Ga.
App. 24, 122 S. F. 632.
Construction which is not strong enough to stand the
strain of ordinary use is defective construction. Monahan
v. National Realty Co., 4 Ga. App. 680, 62 S. F. 127.
One who is in the control of a building which he uses as
a show house, to which the public are invited for his
profit, and who assumes the construction of the plastering
therein, is liable to an invitee injured by the falling of the
plastering because of defects in its construction, of which
he had knowledge or of which he ought to have known in
the exercise of ordinary care. Bonita Theatre v. Bridges,
31 Ga. App. 798, 122 S. F- 255.
Same — Same — Illustration. — Where a child was killed by
a defect, of which the landlord had notice, in a porch of a
mill of which her stepfather was tenant, the child being
lawfully upon the porch, the landlord was liable under this
section. Crook v. Foster, 142 Ga. 715, 83 S. F- 670.
Where it appeared that the plaintiff when injured was
using these steps in the due course of his business with
the tenant, that the steps constituted a platform used in
common with other storehouses belonging to and occupied
by the landlord, and that the defective and dangerous con-
dition of the steps was well known to the landlord, and he
had sufficient opportunity to have the same repaired but
had neglected to do so, a cause of action was set forth.
Archer v. Blalock, 97 Ga. 719, 25 S. F- 391.
If the nuisance grew out of the failure of the landlord
to make the repairs, this could not relieve the tenant for
the nuisance as he might have made them and charged
them to the landlord, and he might set-off their reasonable
value against the rent due the landlord under this sec-
tion unless he had, by contract with the landlord, bound
himself to make the repairs. Vason v. Augusta, 38 Ga.
541, 548.
The nuisance of rats and their bringing in food into an
office is not such a defect as the landlord is liable for un-
der this section. Lumpkin v. Provident Loan Soc. Corp.,
15 Ga. App. 816, 84 S. F- 216.
It is the duty of the landlord to keep the premises free
from the consequences arising ordinarily from the use of
a water-closet, which becomes a private nuisance, when
not properly used and attended to; and if the landlord fails,
and from such cause damage ensues, he is liable. Marshall
v. Cohen, 44 Ga. 489.
Humiliation, mortification and a shock are not such in-
juries as may be redressed because of landlord's failure
to repair under this section. Davis v. Hall, 21 Ga. App.
265, 94 S. F. 374.
If the landlord failed to repair the roof of the storehouse
(the landlord under this section of the code, being bound
to keep the rented premises in repairs) after notice of its
leaky condition, and the defendant's goods were damaged
thereby, he was entitled to recover such damages from the
plaintiff and have the same deducted out of the amount
of the rent claimed to be due, and that we think would be
the proper rule when the tenant has the exclusive posses-
sion and control of the store -house rented. But in this
case, the evidence shows that the landlord occupied the
room immediately over the room occupied by the tenant
in the same building. In such a case, notice by the tenant
to the landlord to repair the roof, would not have been nec-
essary. Guthman v. Castleberry, 49 Ga. 273, 274; Guthman
v. Castleberry, 48 Ga. 172.
Same — Where Landlord in Partial Control. — A landlord
is liable for defects in the original construction of a build-
ing, whether he knows of them or not. And where he re-
tains a qualified possession and general supervision of his
building, he may also be held liable for injuries arising
from failure to maintain the building in proper repair,
either if he knew of the defects or if, in the exercise of
ordinary care, he should have known of them. Monahan
v. National Realty Co., 4 Ga. App. 680, 62 S. F. 127.
Where the landlord retains a qualified possession of the
rented premises, himself attending to the supervision of
the building, collecting the rents, and personally or by an
agent making repairs, he is liable for an injury resulting
from a defective condition of the building, if he has actual
notice of such defective condition, or if, in the exercise of
ordinary and reasonable care and diligence, he ought to
have known of it. Monahan v. National Realty Co., 4
Ga. App. 680, 62 S. F- 127; Davis v. Hall, 21 Ga. App. 265,
94 S. E. 374; Marr v. Dieter, 27-Ga. App. 711, 109 S. F. 532.
Liability for Unforeseen and Extraordinary Causes.— The
landlord is not liable to the tenant for damages to his
goods, resulting from unforeseen and extraordinary causes,
unless so stipulated in the contract at the time of renting.
Guthman v. Castleberry, 49 Ga. 273; Lumpkin v. Provident
Loan Soc, 15 Ga. App. 816, 84 S. F- 216.
Liability to Guest of Tenant. — "A landlord is liable to
one lawfully present on the rented premises, by invitation
of the tenant, for injuries arising from defective construc-
tion, or from failure to keep the premises in repair, where
the defect is known to the landlord or in the exercise of
reasonable diligence could have been known, and the in-
jured person was himself in the exercise of due care."
Ross v. Jackson, 123 Ga. 657 (51 S. F- 578); Crossgrove v.
Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. F-
694). See § 4420. Mattox v. Lambright, 31 Ga. App. 441,
446, 120 S. F. 685.
[ 1036 ]
3695
LANDLORD AND TENANT
§ 3696
Liability Where Tenant Could Have Avoided Injury. — A
nonsuit is proper when the evidence affirmatively shows
that the tenant's wife had knowledge of the defect in the
step and of its dangerous condition, and might, by the ex-
ercise of ordinary care, have avoided injury. Veal v. Han-
Ion, 123 Ga: 642, 51 S. E- 579.
Where a dwelling house containing a cellar was rented
on monthly payments, and because of a leakage through
the wall a pond of filthy water accumulated in the cellar,
rendering the house unfit for a home, and the landlord re-
fused to repair the house, he will not be liable in damages
to the tenant on account of tenant's sickness sustained
three or four months after the refusal to repair, which
sickness is attributed to unsanitary condition of the house.
The tenant by remaining in the untenantable premises was
guilty of such negligence as barred a recovery. Clements
v. Blanchard, 141 Ga. 311, 80 S. E- 1004.
A landlord is responsible to a guest of his tenant for
damages arising from defective construction or for dam-
ages from failure to keep the premises in repair under this
section. In the first case knowledge of the defective con-
struction by the landlord is conclusively presumed. Mona-
han v. National Realty Co., 4 Ga. App. 680 (62 S. E. 127).
In the second case the landlord is entitled to notice, either
actual or constructive. Ocean Steamship Co. v. Hamilton,
112 Ga. 901 (38 S. E- 204); Marr v. Dieter, 27 Ga. App.
711, 109 S. E. 532.
When Liability for Injuries from 111 Repair Attaches.— If
after notice of the defective condition of the premises and
after the lapse of a reasonable time in which to make the
needed repairs, the repairs are not made, the landlord will
be liable to the tenant or a member of his family for dam-
ages occasioned by the disrepair of the premises if the in-
jured party's own negligence did not bring about the in-
jury. Weal v. Hanlon, 123 Ga. 642, 51 S. E- 579.
Tenant Must Plead and Prove Notice. — In order to sus-
tain a cause of action against a landlord for failure to keep
the premises in repair, the tenant must allege and prove
that he has given the landlord notice of the defective con-
dition of the premises. Not only is the landlord entitled
to notice from the tenant that the premises are out of re-
pair before the landlord will be held liable, but it is also
incumbent upon the tenant to show that his own conduct
was not such as to preclude him from recovering. Guth-
matf v. Castleberry, 48 Ga. 172; Stack v. Harris, 111 Ga.
149, 150 (36 S. E. 615); Roach v. LeGree. 18 Ga. App. 250,
251, 89 S. E. 167.
Liability for Nuisance. — A landlord is not liable under
this section for injury received by a person from falling
on ice which has been allowed by the tenants to accumulate
and remain on a sidewalk abutting the rented premises.
This is true though the ice resulted from water which had
flowed from the landlord's property through a ditch placed
there for the purpose of carrying off the refuse water
across the sidewalk; the ice not being on the sidewalk
when the tenants entered into possession, although the
ditch was on the property at that time and put there for
the purposes above indicated. Gardner v. Rhodes, 114 Ga.
929, 41 S. E. 63.
Liability of Landlord for Acts of a Cotenant.— "The ten-
ant is not the agent of the landlord, in the sense that the
latter is responsible for the damages which result to third
persons from the illegal or negligent use of the rented
premises by the former." In respect to each other co-
tenants are strangers; and if damage to one tenant be
caused, "not by any act or negligence to repair of the
landlord, but by the fault exclusively of the cotenant, such
cotenant, and not the landlord, would be liable." White
v. Montgomery, 58 Ga. 204; Adair v. Allen, 18 Ga. App.
636, 89 S. E. 1099.
§ 3695. (§ 3119.) Rights of tenants.— The ten-
ant has no right beyond the use of the land and
tenements rented to him, and such privileges
as are necessary to the enjoyment of his use. He
can not cut or destroy growing trees, remove
permanent fixtures, or otherwise injure the prop-
erty. He may use other timber for firewood and
the pasturage for his cattle.
See 7 Cum. Dig. 277; 6 Enc. Dig. 4254. As to injunction
for cutting timber in certain cases, see § 5504.
Editor's Note. — This note deals only with permanent
fixtures. For removal of fixtures in general, see note to
§ 3696. As to definition of fixtures, see note to § 3621.
The Editor's Note to § 3696 points out the effect of that
section in connection with this section.
Removal of Fixtures — To Make Repairs. — The plaintiffs
had no right under this section as the tenants of the de
fendant, under the general license to make "necessary re-
pairs" to have removed permanent fixtures, which the
witnesses state caused the damage. Center v. Davis, 39
Ga. 211, 219.
Same — Distinction between Permanent and Movable Fix-
tures^— Common Law Unchanged. — A tenant can not remove
permanent fixtures under this section. The distinction be-
tween permanent and movable fixtures is here recognized,
and this is no departure from, or change in, the common
law. Thus, chattels real are considered as personal prop-
erty in every respect, if not so annexed and necessarily at-
tached to the freehold as to go along with it in the same
path of alienation. In order to make a thing part of the
realty by merely annexing, it is necessary that both the
thing and the soil to which it is attached should belong
to the same owner. McCall v. Walter, 71 Ga. 287, 290.
Same — Same — Pavement. — Under the provisions of the
Civil Code, § 3621, it is declared that "Anything intended
to remain permanently in its place, though not actually
attached to the land, such as a rail fence, is a part of the
realty and passes with it." This section declares: "The
tenant can not cut or destroy growing trees, remove per-
manent fixtures, or otherwise injure the property." Taking
into consideration this section and § 3617 which declares
that realty includes all lands and the buildings thereon,
and all things permanently attached to either, it is clear
that a fixture permanently attached to the land, such as
a pavement, is not removable under the right to remove
trade fixtures under § 3696. Mayor v. Standard Fuel Sup-
ply Co., 151 Ga. 145, 147, 106 S. E. 178.
Same — Counters and Drawers in Store Permanent. — The
counters and drawers in a drug store placed there by the
landlord, and rented in their place with the store, are fix-
tures, which the tenant has no right to remove, and if the
building is burnt and they are saved by the tenant, they
are the property of the landlord, and he has the legal right
to dispose of them as he thinks proper. The tenant has
no right to remove them to another store rented from a
third person. Pope v. Gerrarn, 39 Ga. 471.
Same — Exception Made in § 3696. — In the absence of a
contract giving him the right so to do, the tenant can not
lawfully remove fixtures annexed to the freehold, which he
has placed on leased land. The exception to this rule ex-
ists only in the case of trade fixtures, under § 3696. Wright
v. DuBignon, 114 Ga. 765, 40 S. E. 747.
Same — Room, Metallic Gutters, Waterpipes — Intention of
Tenant Immaterial. — A servant's room, metallic gutters
attached to the proof of a house, waterpipes laid under
the ground by a tenant on leased premises, become, when
constructed and attached, a part of the freehold, and can
not be lawfully dissevered from the land by the tenant
against the will of the landlord, even though at the time
of their erection the tenant intended to remove them at
the expiration of his term. Wright v. Dubignon, 114 Ga. 765,
40 S. E. 747.
§ 3696. (§ 3120.) Removal of fixtures by ten-
ant.— A tenant during the term or a continuation
thereof, or while he is in possession under the
landlord, may remove fixtures erected by him.
After the term and possession are ended, they
are regarded as abandoned to the use of the land-
lord, and become the latter's property.
For full treatment of fixtures, see 6 Cum. Dig. 277, 6
Enc. Dig. 254.
Editor's Note. — This section was taken from the first
headnote of the case of Youngblood v. Eubanks, 68 Ga.
630. It was said in Wright v. DuBignon, 114 Ga. 765, 769,
40 S. E- 747, that the headnote was written by the reporter
and not by the court and is not a correct statement of the
law of this state; therefore this section as expressed is not
the law of this state, although adopted by the legislature
in adopting the code, for when a code section is taken from
a decision, the court may interpret the section in the light
of the decision. That decision refers solely to trade fix-
tures and the section is held to be applicable only to them,
making an exception as to their removal from the general
rule as indicated in § 3695 (see note to § 3695).
As was said in Wright v. DuBingon, supra, there is an
apparent conflict in this and the preceding section but when
interpreted in the light of the case from which this sec-
tion was taken, as above indicated, it is in harmony with
the other sections of the code.
It seems that a tenant may remove domestic and orna-
mental fixtures during his term, but can not remove them
after its expiration without the landlord's consent (see
Wright v. DuBignon, 114 Ga. 765, 40 S. E. .747) unless he
remains in possession of the premises under right to still
[ 1037 ]
§ 3697
LANDLORD AND TENANT
§ 3698
be considered the landlord's tenant (Youngblood v. E|u-
banks, 68 Ga. 630, 633).
The treatment below is restricted to the tenant's right
to remove trade, domestic and ornamental fixtures. As to
a definition of fixtures and illustrations, see the note to §
3621. The note to § 3695 deals with the tenant's rights
with regard to permanent fixtures in general.
Section Applicable Only to Trade Fixtures. — "This sec-
tion of the code is to be construed to refer only to trade
fixtures; and when so interpreted, it is in entire harmony
with all the cognate sections of the code. Wright v. Du-
Bignon, 114 Ga. 765, 40 S. E. 747; Raymond v. Strickland,
124 Ga. 504, 507, 52 S. E. 619.
The tenant can not remove fixtures annexed to the free-
hold, which he has placed on the land, and the exception
to this rule exists only in the case of trade-fixtures. Ar-
mour & Co. v. Block, 147 Ga. 639, 643, 95 S. E- 228. See
note to § 3695. .
Same — Definition of Trade Fixture. — See Wright v. Du-
Bignon, 114 Ga. 765, 40 S. E- 747; Raymond v. Strickland,
124 Ga. 504, 52 S. E. 619.
Same — Sawmill Fixtures. — Youngblood v. Eubanks, 68 Ga.
630, upon which this section is based, primarily dealing
with the time within which fixtures might be removed, held
that temporary shanties, shelters, pens, stocklots, etc.,
which had been placed on the premises by a tenant in the
sawmill business to carry on the business, might be re-
moved by the tenant. Wright v. DuBignon, 114 Ga. 765,
40 S. E. 747.
Samt — Meat Smokehouse. — Where by an agreement the
landlord erected a smokehouse for the tenant upon the
tenant paying $4,000, the smokehouse became "a trade fix-
ture" which could be removed by the tenant. Armour &
Co. v. Block, 147 Ga. 639, 95 S. E. 228.
Same — Depot Building. — A depot building, erected by a
railroad, not for the purpose of improving the inheritance,
but to aid and assist the company in carrying on its busi-
ness, is a trade fixture, and a tenant may remove such fix-
tures before the expiration of his term. But after having
forfeited its estate in the land, and having abandoned its
possession, the railroad could not remove such fixtures.
Carr v. Georgia Railroad, 74 Ga. 73.
Removal of Domestic and Ornamental Fixtures — During
Tenancy .—Domestic or ornamental fixtures which a tenant
has attached to a dwellinghouse or the grounds on which
the same is located, to promote his domestic comfort, and
which may be easily severed and made equally useful to
him in another house, may be removed by him during his
term. Aliter as to such as are substantial additions to the
house, or which if taken away would be injurious to the
freehold. Wright v. DuBignon, 114 Ga. 765, 40 S. E- 747.
Same — Interference by Landlord. — With regard to do-
mestic and ornamental fixtures, it is very generally held
that they may be removed by the tenant, and are to be
considered personalty even though annexed; and that any
wrongful act or refusal on the part of the landlord with
respect to the removal of the tenant's fixtures amounts to
a conversion for which an action will lie. Wright v. Du-
Bignon, 114 Ga. 770, 40 S. E- 747; Richards v. Gilbert, 116
Ga. 382, 42 S. E- 715. An action will not lie for domestic
fixtures left annexed after the right of removals has ex-
pired. Raymond v. Strickland, 124 Ga. 504, 507, 52 S. E. 619.
Same — Definition and Illustrations of "Domestic and Or-
namental Fixtures." — See the discussions in Wright v. Du-
Bignon, 114 Ga. 765, 40 S. E. 747, and Raymond v. Strick-
land, 124 Ga. 504, 32 S. E. 619.
§ 3697. (§ 3121.) Delivery of possession.— The
tenant must deliver possession at the expiration
of his term, and if he fails or refuses to do so a
summary remedy is given to the landlord.
Cross References. — For full treatment of delivery of pos-
session and the remedy provided, see 8 Cum. Dig. 36, 75; 8
Enc. Dig. 563, 638. As to proceedings against tenant hold-
ing over, see § 5385 et seq. As to distress for rent and
double rent for holding over, see § 3700.
Possession under Agent's Unratified Contract of Pur-
chase.— One who makes a contract for the purchase of land
with a person assuming to act as agent of the owner, and
subject to the approval and ratification of this latter, and
who goes into possession under the contract, which is never
ratified by the owner, is a tenant at sufferance, and is sub-
ject to be dispossessed by the statutory process against a
tenant holding over, after possession has been demanded
and refused. Smith v. Singleton, etc., Co., 71 Ga. 68.
Possession under Void Mortgage Sale.— The sale under the
power of sale in a mortgage was void under § 4620, es-
pecially in vie.w of this section and § 3698, providing that
a tenant must deliver possession at the expiration of his
[ 1038 ]
term, and that a tenant can not dispute his landlord's title,
nor attorn to another claimant while in possession. Wright
v. Harris, 221 Fed. Rep. 736.
§ 3698. (§ 3122.) Estoppel. — The tenant can
not dispute his landlord's title, nor attorn to
another claimant while in possession.
Cross References. — For full treatment of estoppel of
Tenant, see 8 Cum. Dig. 60, 8 Enc. Dig. 601.
As to agent's right to dispute his principal's title, see
§ 3594. As to estoppels in general, see § 5736.
Codification of Common Law — Reason for Rule. — The
common law rule, as well as this section is that the tenant
cannot dispute the title of his landlord. It is no reply to
say that he is no tenant. The reason of the rule is that
one who goes into possession, under another, shall not be
permitted to deny the character in which he went in.
Burnett & Bro. v. Rich & Co., 45 Ga. 211, 212.
Statement of Rule. — After, one has rented land from an-
other, she can not, while in possession, set up title as
against her landlord. Gleaton v. Gleaton, 37 Ga. 650. See
Grizzle v. Gaddis, 75 Ga. 350.
Same — Where Landlord's Title Fraudulent. — Even if
fraudulent, the tenant has no right to dispute his landlord's
title. Gleaton v. Gleaton, 37 Ga. 350; Tufts v. DuBignon,
61 Ga. 322.
Same — Where Landlord Parts with Title.— While the gen-
eral rule as laid down in this section is that a tenant can
not dispute the landlord's title nor attorn to another claim-
ant while in possession, Grizzard v. Roberts, 110 Ga. 41,
35 S. E. 291; Sparks v. Conrad, 99 Ga. 643, 27 S. E. 764, if
the landlord parts with the title to the disputed premises
or if it be lawfully sold under execution against him, the
tenant may in good faith attorn to the purchaser. Beall
v. Davenport, 48 Ga. 165, 15 Am. R. 656; Raines v. Hind-
man, 136 Ga. 450, 71 S. E. 738; Hines v. Lavant, 158 Ga.
336, 123 S. E. 611.
In a summary proceeding by a landlord to dispossess a
tenant as one holding over beyond the expiration of his
term, it is no defense that the landlord's title to the prem-
ises expired before the institution of the dispossessory pro-
ceeding, and that the tenant is now holding under the
landlord's successor in title, where it does not appear that
after the creation of the tenancy the landlord parted with
his title, or that the alleged successor to his title is in
privity with it. Lee v. Lacy, 26 Ga. App. 126, 105 S. E-
619.
Same — Attornment to Vendee. — Where the landlord parts
with his title pending the lease, the tenant thereupon, and
by operation of law, in the absence of any reservation to
the contrary, becomes the tenant of the purchaser (Grizzle
v. Gaddis, 75 Ga. 350, 354) ; and in such a case the right to
recover rent which had not accrued at the time of the sale
is therefore ordinarily not with the original landlord, but
rests in the vendee. Stewart Bros. v. Cook, 24 Ga. App.
509, 101 S. E. 304.
Same — Where Vendee Purchases Apparent Title from One
Holding as Tenant. — The vendee of a tenant who has an
apparent legal title and from whom the purchase was
made, with or without notice of the tenancy, can not dis-
pute the title of the landlord, in an action of complaint for
land, until he has restored the possession to the latter.
Vada Naval Stores Co. v. Sapp, 148 Ga. 677, 98 S. E. 79.
Same — Where Lessee-Landlord's Term Has Expired. — \
lessee whose terms under an unsigned lease for five years
has expired can not evict subtenant who has not attorned
to owner of land. Beasley v. Lee, 155 Ga. 634, 117 S. E. 743.
Same — As to Tenant's Heirs. — The tenant's heirs can not
dispute the landlord's title. Lewis v. Adams, 61 Ga. 559.
Change of Character of Holding — Entry under Third Per-
son.— A tenant cannot change the character of his holding
without the consent of his landlord, even after, the expira-
tion of the original rent period, until he surrenders the
premises. This is true notwithstanding the person putting
the tenant in possession may not have owned the land.
Morgan v. Morgan, 65 Ga. 493; Grizzle v. Gaddis, 75 Ga.
350; Grizzard v. Roberts, 110 Ga. 41, 35 S. E. 291; Johnson
v. Thrower, 117 Ga. 1007, 44 S. E. 846; Hodges v. Waters,
124 Ga. 229, 52 S. E- 161; Watters v. Hertz, 135 Ga. 804, 70
S. E. 338; Bullard v. Hudson, 125 Ga. 393, 54 S. E. 132;
New v. Quinn, 31 Ga. App. 102, 119 S. E. 457.
Where Tenant in Possession Claiming Title When Term
Begins. — "The rule that a tenant can not set up a title to
the rented premises in opposition to that claimed by his
landlord is applicable, although at the time the contract of
rent was made the tenant was in possession, claiming title
to the premises." Johnson v. Thrower, 117 Ga. 1007, 44 S.
E. 846; Willis v. Harrell, 118 Ga. 906, 911, 45 S. E. 794.
Applicable to Trustee When Landlord. — A trustee is
§ 3699
LANDLORD- AND TENANT
§ 3699
bound to perform the duty, enjoined by this section upon
all landlords, of keeping the premises in repair, and es-
pecially so when he expressly undertook by agreement with
his tenant so to do. Miller v. Smythe, 92 Ga. 154, 158, 16
S. E- 46.
Application in Early Cases. — The defendant in this action
went into possession of the premises in dispute as the
tenant of J and upon the principle of law embodied in this
section and decided by this Court in Newton v. Beckon, 33
Ga. 163, a tenant can not repudiate the landlord's title
until he surrenders up to him the possession of the prem-
ises. No principle of the law is of more solid and compre-
hensive justice than this — none which invokes a stricter
and more rigid enforcement at the hands of the courts.
The tenant, or his assignee, upon every 'principle of justice
and law, must not attorn to another nor set up in himself
a title in conflict with his landlord's while in possession of
his property. Ronaldson v. Tabor, 42 Ga. 230, 237.
Illustration of Application. — Neither D nor those claiming
the possession under him, could deny or dispute the title
of their landlord, without first surrendering the possession
of the rented premises to their landlord, according to the
terms of the contract. Richardson v. Harvey, 37 Ga. 224,
229.
Where X was tenant under Y and S brings ejectment
against him and an agreement verdict is rendered dividing
the land, giving X 3/7 and S 4/7, X is deemed to hold as
tenant in common with S in subordination to Y, for he
could not attorn to S without surrendering possession to Y,
even though he agree to do so. McDowell v. Sutlive, 78
Ga. 148, 2 S. E. 937.
A tenant holding under his mother can not dispute her
title or effectively surrender possession to another without
first surrendering possession to her. Beckham v. Maples,
95 Ga. 773, 22 S. E. 894.
Where X held under contract with Y then held adverse
to him under the same possession, and then made another
contract with Y under which he held until suit brought, the
court did not err in refusing to charge this section. Den-
nard v. Lewis, 142 Ga. 171, 82 S. E. 558.
§ 3699. (§ 3123.) Repairs and improvements. —
The landlord must keep the premises in repair,
and is liable for all substantial improvements
placed upon them by his consent.
I. Editor's Note and Origin.
II. Duty and Inability of Landlord.
III. Rights of Tenant.
CROSS REFERENCES.
For a full treatment of the rights, duties and liabilities
for repair, see 8 Cum. Dig. 46; 8 Enc. Dig. 580. As to re-
pairs in a tenancy for years, see § 3689. As to when there
is an implication of the relationship, see § 3692.
I. EDITOR'S NOTE AND ORIGIN.
Editor's Note. — This section does not impose any liability
for a failure to keep the premises in repair. That will be
found in § 3694 and note. This section seems to deal only
with repairs and improvements as between the parties and
the note is restricted to such cases. For the landlord's lia-
bility for injuries arising out of ill repairs, and the cases
dealing with defective construction and liability for same,
refer to the note to § 3694.
Origin of Section. — This section introduced a new rule on
the subject of keeping rented premises in repair, devolving
the burden on the landlord instead of upon the tenant,
where it rested by the rule of the common law. This
statutory obligation of the landlord has been frequently
considered by this court. Driver v. Maxwell, 56 Ga. 11,
citing principal case. See also, Whittle v. Webster, 55 Ga.
180; notes to Center v. Davis, 39 Ga. 211; Vason v. Augusta,
38 Ga. 541; Roach v. LeGree, 18 Ga. App. 250, 89 S. E. 167.
8 Enc Dig. 580.
Where simply the relation of landlord and tenant exists,
the tenant, in such case, having no estate but only a usu-
fruct in the rented premises, the civil law is adopted, and
the landlord must keep the premises in repair; and if, on
notice he fails to do so, the tenant has a right of action,
or he may recoup against the rent. Lewis v. Chisholm, 68
Ga. 40; Mayer v. Morehead, 106 Ga. 434, 435, 32 S. E. 349.
II. DUTY AND LIABILITY OF LANDLORD.
Landlord Liable for Repairs. — The landlord must keep the
rented premises in repair, and is liable for all substantial
improvements placed upon then by his consent. Whittle
v. Webster, 55 Ga. 180.
Same — Rebuilding in Case of Destruction. — The provision
of this section making landlords liable for repairs, does not
require them to rebuild in case of the destruction of the
tenement. Mayer v. Morehead, 106 Ga. 434, 32 S. E. 349.
And where the obligation to repair or rebuild is not im-
posed by law, but arises from contract, it must be by rea-
son of an express agreement to that effect. It will not be
inferred even from a reservation of the right to enter for
that purpose. Gavan v. Norcross, 117 Ga. 356, 361, 43 S. E.
771.
Same — Extends to Subtenant. — "It is the duty of the land-
lord to keep the premises in repair, whether they be occu-
pied by his tenant or his subtenant." Hooks v. Bailey, 5
Ga. App. 211, 214, 62 S. E. 1054.
Extent of Landlord's Duty to Repair. — It is a landlord's
duty, when he rents at full price, to make the tenements
suitable for the purpose for which they are rented, unless
the tenant knows as much about the premises as the land-
lord dees; "and he must, upon notice of any defect, keep
it, by repairs, in such condition as to be suitable for such
use." White v. Montgomery, 58 Ga. 204; Florence v.
Northcutt, 145 Ga. 265, 266, 88 S. E. 933.
Same — Where Term Begins. — It is the duty of the land-
lord when he rents a tenement at full price, for a term to
begin in the future, to have it, on the day when the term
is to begin, in a condition reasonably suited for the purpose
for which it is rented, unless the circumstances surrounding
the transaction are such as to indicate a contrary intention
in the minds of the contracting parties. Thompson v.
Walker, 6 Ga. App. 80, 64 S. E. 336.
Same — Lapse of Reasonable Time.— In a suit by a tenancy
under this section against a landlord for damages to a stock
of goods, caused by a failure to repair a roof destroyed by
fire, it should appear that the damage was done after the
time when the landlord by proper diligence could have cov-
ered the building. Gavan v. Norcross, 117 Ga. 356, 43 S. E.
771; Driver v. Maxwell, 56 Ga. 11; White v. Montgomery,
58 Ga. 204: Lewis v. Chisholm, 68 Ga. 40; Miller v. Smythe,
95 Ga. 288, 22 S. E. 532; Johnson v. Collins, 98 Ga. 271, 26
S. E. 744; Stack v. Harris, 111 Ga. 149, 36 S. E. 615.
Same — Premises Suited for Purpose. — "Under the law of
this State, it is presumed that the premises leased are in a
condition suitable for the purposes for which they are
rented, and if such is not the case, and damage results
therefrom to the tenant, the landlord is liable provided he
has had notice of the defective condition of the premises
and has failed after a reasonable time to make the neces-
sary repairs. Whittle v. Webster, 55 Ga. 180. See also,
Driver v. Maxwell, 56 Ga. 11; White v. Montgomery, 58
Ga. 204; Lewis v. Chisholm, 68 Ga. 40; Miller v. Smythe, 95
Ga. 288, 22 S. E. 532; Johnson v. Collins, 98 Ga. 271, 26 S.
E. 744; Stack v. Harris, 111 Ga. 149, 150, 36 S. E. 615;
Clements v. Blanchard, 141 Ga. 311, 80 S. E- 1004.
In this state the law is that the landlord must keep the
rented premises in repair, not as the same were when the
tenant rented them, if he did not know of the defective
condition thereof at the time, but the same are to be kept
in repair by the landlord so as to render them suitable for
the purposes for which they were rented. If the tenant pays
the landlord a fair and reasonable rent for the store-house
rented as being suitable for the purpose for which he rented
it, he is entitled to have it kept in repair by the landlord
for that purpose, under this section. Whittle v. Webster,
55 Ga. 180, 182.
It is the duty of the landlord, when he rents a tenement
to a tenant at full price, to make it suitable for the purpose
for which it is rented, unless the tenant knows as much
about its condition as he does; and he must, upon notice of
any defect, keep it, by repairs, in such condition as to be
suitable for such use. White & Co. v. Montgomery, 58
Ga. 204.
Same— Patent Defects Known at Lease.— If there are
patent defects known to both parties at the time of executing
the lease, and the lessee takes the premises as they are, he
can not thereafter demand that the landlord remedy the de-
fect. Driver v. Maxwell, 56 Ga. 11; Aikin v. Perry, 119 Ga.
263, 46 S. E. 93; Lumpkin v. Provident Loan Society, 15
Ga. App. 816, 84 S. E. 216; Desverges v. Marchant, 18 Ga.
App. 248, 89 S. E- 221.
Same — As to Defective Workmanship. — Where the land-
lord makes successive attempts to stop the leak, but fails
through defective workmanship, he must pay the tenant,
under such a contract, full compensation for the injury
done to goods in the house during the period of those at ■
tempts and failures. Dempsey v. Hertzfield, 30 Ga. 866.
Duty of Landlord to Inspect — Before Notice. — "A tenant
is entitled to exclusive occupancy during the term of the
tenancy, and it is his duty, if the premises get out of re-
pair, to notify the landlord of their defective condition. The
landlord is under no duty to inspect the premises while the
tenant is in possession, in order to keep informed as to
their condition." Ross v. Jackson, 123 Ga. 657, 658, 51 S. E.
578.
[ 1039 ]
§ 3699
LANDLORD AND TENANT
§ 3700
When the tenant is in the exclusive possession and con-
trol of the rented premises, the landlord is under no duty
of examining the same with a view to ascertaining whether
or not repairs are needed, unless requested so to do. Ocean
Steamship Co. v. Hamilton, 112 Ga. 901, 38 S. E. 204.
Same — After Notice.— When, after notice, the landlord
fails within a reasonable time to make the repairs, he is
chargeable with notice of all defects that a proper inspection
would have discovered. To that extent he might be charged
with liability for injury arising from a defect which was
hidden so far as the tenant was concerned. Stack v.
Harris, 111 Ga. 149, 32 S. E. 615; Roach v. LeGree, 18 Ga.
App. 250, 252, 89 S. E. 167.
Same — Effect of Inspection. — Ordinarily the landlord is un-
der no duty to inspect the premises while the tenant is in
possession, in order to keep informed as to its condition,
yet where the landlord does inspect the premises and in
such inspections finds a defect caused either by original
construction or by a want of repair, and himself undertakes
to remedy such defect, he is responsible for an injury due
to improper or imperfect repairs. Adams v. Klasing, 20
Ga. App. 203. 92 S. E. 960; Marr v. Dieter, 27 Ga. App. 711,
109 S. E. 532.
Duty of Tenant to Give Notice.; — "As was said in Stack
v. Harris, 111 Ga. 149, 151 (36 S. E. 615), 'When rented
premises become out of repair, it is the duty of the tenant
to notify the landlord of this fact, and also to abstain from
using any part of the premises, the use of which would be
attended with danger.' " Clements v. Blanchard, 141 Ga.
311, 312, 80 S. E. 1004; Ocean Steamship Co. v. Hamilton,
112 Ga. 901, 38 S. E- 204; White v. Montgomery, 58 Ga.
204; 8 Enc. Dig. 585; Roach v. LeGree, 18 Ga. App. 250,
251, 89 S. E. 167; Alexander v. Owen, 18 Ga. App. 326, 89
S. E. 437; Davis v. Hall, 21 Ga. App. 265, 268, 94 S. E. 374.
If, after such notice has been given the tenant suffers
damages on account of the failure of the landlord to make
the necessary repairs, the landlord is liable for the dam-
ages thus sustained, provided the conduct of the tenant has
not been such as to preclude him from recovering. Stack
v. Harris, 111 Ga. 149, 36 S. E- 615, citing principal case.
Ross v. Jackson, 123 Ga. 657, 51 S. E- 578.
Same — Where Landlord Retains Qualified Possession. — It
is well settled that where a landlord retains a qualified
possession of and a general supervision over the rented
premises, by placing an agent in charge thereof, no notice
from the tenant is required. See Guthman v. Castleberry,
49 Ga. 273; White v. Montgomery, 58 Ga. 204; Monahan v.
National Realty Co., 4 Ga. App. 680, 62 S. E- 127; Florence
v. Northcutt, 145 Ga. 265, 88 S. E. 933; Davis v. Hall, 21
Ga. App. 265, 268, 94 S. E. 274.
Same — Burden of Proof on Tenant. — In order to sustain a
cause cf action against a landlord for failure to keep the
premises in repair, the tenant must allege and prove that
he has given the landlord notice of the defective condition
of the premises. Roach v. LeGree, 18 Ga. App. 250, 251,
89 S. E. 167.
Liability Where Tenant Supervised Work. — Where a ten-
ant had been occupying a certain store, and at his instance
and under his immediate supervision the landlord caused
repairs to be made in the flooring, and thereupon the ten-
ant rented for a term, agreeing that no repairs should be
required of the landlord, if the floor subsequently gave way
by reason of putting a heavy load upon it, there could be
no set-off from the rent on account of damages resulting
from such accident. Bosworth v. Thomas, 67 Ga. 640.
Liability for Improvements — Consent.— Where one rents
premises under a contract to purchase if he ever becomes
able and during the tenancy places repairs upon the prem-
ises, he can not hold the vendee of his landlord liable for
the improvements because the landlord or vendee did not
consent, even though the tenant may have placed the im-
provements there with the idea of purchasing. Grizzle v.
Yoddis, 75 Ga. 350.
The words, "keep * * * in repair," as used in this section
are not technical words, but are used in their ordinary
sense. The usual meaning of "to repair" is to mend, to
restore to a sound state what has been partially destroyed,
to make good an existing thing; not to make a new thing,
such as erecting a new building to take the place of one de-
stroyed. The law requiring the landlord to keep the rented
premises in repair means that he shall rebuild buildings
wholly destroyed by casualty not caused by him. Mayer
v. Morehead, 106 Ga. 434, 436, 32 S. E. 349.
III. RIGHTS OF TENANT.
In General. — If, after notice that the premises are out of
repair, the landlord neglects to repair within a reasonable
time, the tenant has his option to make the repairs and re-
cover from the landlord the reasonable expense incurred,
or he can set-off the expense against the rent, or he may
omit to make the repairs himself and may seek compensa-
tion by an action for the damages. The right to either
remedy is subject to the condition that the necessity for the
repair was not caused by the negligence of the tenant, or
of those for whose conduct he is responsible. Dougherty v.
Taylor & Norton Co., 5 Ga. App. 773, 63 S. E- 928.
Right of Tenant to Make Repairs. — Whilst, by a strict
construction of this section, it is the duty of the landlord
to keep in repair even the fencing around the farm rented,
yet he is not bound to watch the fence and see that it is
kept up. That duty devolves on the tenant, who may re-
pair himself and charge the landlord with it, to be ac-
counted for in the rent, or notify the landlord that the
fencing needs the repair. Driver v. Maxwell, 56 Ga. 11.
Same — Manner of Making. — In making the necessary re-
pairs the tenant is not bound to use precisely the same
materials as were originally used. If he employs capable
workmen, uses suitable materials, and the work is reason-
able and properly done, he is entitled to be reimbursed for
the money expended by him in making the repairs. Dough-
erty v. Taylor, etc., Co., 5 Ga. App. 773, 63 S. E- 928.
Due Care by Tenant Prerequisite to Recovery for Dam-
age Sustained. — The tenant must use due care before an in-
jury resulting from the landlord's failure to repair can be
redressed. The use of steps which the defendant was afraid
would fall because of defect, is not the exercise of such
care. Donehoe v. Crane, 141 Ga. 224, 80 S. E. 712.
It is also incumbent upon the tenant to show that his own
conduct was not such as to preclude him from recovering.
Guthman v. Castleberry, 48 Ga. 172; Stack v. Harris, 111
Ga. 149, 150, 36 S: E. 615; Roach v. LeGree, 18 Ga. App.
250, 251, 89 S. E. 167.
Where ditches on farm land were filled up, and the ten-
ant gave no notice, and failed to show ordinary care to
avoid injury, he could not recoup against distraint for rent.
Henley v. "Brockman, 124 Ga. 1061, 53 S. E- 672.
Same — Duty of Tenant to Make Repairs. — If the nuisance
grew out of the failure of the landlord to make the repairs,
this could not relieve the tenant for the nuisance as he
might have made them and charged them to the landlord,
and he might set-off their reasonable value against the
rent due the landlord under this section unless he had, by
contract with the landlord, bound himself to make the re-
pairs. Vason v. Augusta, 38 Ga^ 541, 548.
Same — Use of Remainder of Premises as Negligence. —
"Even after notice to the defendant, the tenants had a
perfect right to use that part of the room which was ap-
parently in good and sound condition, unless there was
something to call their attention to a defect in that part."
Roach v. LeGree, 18 Ga. App. 250, 252, 89 S. E. 167.
"When rented premises become out of repair, it is the
duty of the tenant to abstain from using any part of the
premises the use of which would be attended with danger.
But even after notice to the landlord the tenant has a right
to use those parts of the premises which are apparently in
good condition, if there is nothing to call his attention to
what may be a hidden defect. The failure of the landlord
to repair in such a case would give to the tenant a right
of action for any damages sustained by him, and his use of
that part of the premises which was in an apparently
sound condition would not preclude him from recovering,
notwithstanding, he had knowledge that there were other
parts of the premises in defective condition." Stack v.
Harris, 111 Ga. 149, 151, 36 S. E. 615; Clements v. Blan-
chard, 141 Ga. 311, 80 S. E- 1004.
Same — Illustrations of Failure to Use Due Care. — If the
tenant see his crop destroyed by cattle without either fix-
ing the fence himself or notifying the landlord to do it, he
neglects a plain duty, which both common sense and the
law of self-preservation, as well as the sensible construc-
tion of the law of the land, imposes upon him, and he and
not the landlord should suffer for such gross neglect.
Driver v. Maxwell, 56 Ga. 11.
§ 3700. (§ 3124.) Distress for rent.— -The land-
lord shall have power to distrain for rent as soon
as the same is due, or before due if the tenant is
seeking to remove his goods from the premises.
If the tenant fails to pay the rent due at any time,
the landlord may reenter immediately and dis-
possess the tenant. If the tenant holds over
after his term expires, the landlord may recover
double rent for such time. Acts 1811, Cobb, 901.
Cross References. — For a full treatment of the remedies
for the recovery of rent, see 8 Cum. Dig. 62-74; 8 Enc. Dig.
606-638. For a full treatment of agricultural liens, see 1
Cum. Dig. 344-353; 1 Enc. Dig. 299-314. As to implied con-
tract to pay rent, see § 3692. As to issue and execution of
1040
§ 3700
LANDLORD AND TENANT
§ 3700
distress warrant, see § 5390. As to amendment of affidavit
to foreclose, see § 5706. As to right of transferee of rent
note, or other evidence of rent, to lien and foreclosure, see
§ 3345-3347.
Editor's Note.— Reference should be had to §§ 3340, 3341,
3342, and 3701 for the rights of the landlord concerning his
lien for rent. The provision "as provided elsewhere in this
code" in the latter part of § 3341 probably refers to this
section. Then § 3342 in providing for the enforcement of
the special lien by foreclosure of distress warrant evidently
makes some reference to it.
Section as Exclusive Remedy — Title in Tenant — Trover. —
Title to the crop raised on rented land is not in the land-
lord so as to empower him to sue for and to recover it in
trover, or, waiving the tort, to sue for its value in assump-
sit. He has a special lien upon it, attaching from its ma-
turity, but to be enforced by distress warrant under this
section. Worrill v. Barnes, 57 Ga. 404.
Necessity for Expressed Contract. — To entitle the land-
lord to distrain the goods and chattels of the tenant for
non-payment of rent, he must show that the tenant was
let into the possession of the rented premises under an ex-
press contract to pay a fixed certain sum of money there-
for, or to infer some other fixed and certain specific serv-
ice for the use thereof, and that the tenant has failed or
refused to perform that express contract. (Dissenting opin-
ion.) Scruggs v. Gibson, 40 Ga. 511, 528.
Same — Certainty of Amount Due. — The fact that the land-
lord may re-enter immediately and dispossess the tenant if
he fails to pay the rent due at any time, as provided by this
section, clearly contemplates that the amount of rent due
should be fixed and certain by the contract of the parties;
otherwise it would be entirely in the power of the landlord
to judge for himself and say what amount was due on an
implied contract for rent, and dispossess the tenant im-
mediately (Dissenting opinion). Scruggs v. Gibson, 40 Ga.
511, 528.
Same — Remedy Based upon Contract. — The reason of the
law which allows the landlord to have the speedy and harsh
remedy of distress against his tenant for the non-payment
of rent is, that the tenant has violated the express terms
of the contract under which he was let into the possession
of the land by the landlord; and therefore, the amount of
rent or other specific service which the tenant agreed to
pay, or render therefor, must be fixed and certain to en-
title the landlord to distrain. (Dissenting opinion.) .Scruggs
v. Gibson, 40 Ga. 511, 528.
Who May Distress — Relation of Landlord and Tenant
Essential. — In order to maintain a distress warrant issued
under this section against a counter-affidavit denying that
the sum distrained for is due, it must be shown that the
relation of landlord and tenant existed between the parties.
Hancock v. Boggus, 111 Ga. 884, 36 S. E. 970.
The relation of landlord and tenant, either by express
contract or by legal implication, is an essential basis of a
distress warrant. Hearn v. Huff, 6 Ga. App. 56, 64 S. E-
298.
Same — Holder of Rent Note. — Although that section con-
tainsithej words, ' any person who may have rent due," these
words are restricted by this section and § 2286 to landlords.
As the law stood prior to the act of 1873, landlords, and
none others, were entitled to distrain; the holder, by trans-
fer, of a rent note could not sue out a distress warrant.
Lumsden v. Manes, 46 Ga. 394; Lathrop & Co. v. Clewis,
63 Ga. 282, 286.
Manner of Determining When Applicable. — The Code fur-
nishes the remedy by distress-warrant for the non-payment
of rent due, and under certain circumstances, when not due,
but when we desire to ascertain the particular state of
facts which will enable us to employ that remedy, we must
look to the common law for instruction and regulate our
conduct by it, for the Code is silent as to what are the par-
ticular contracts under which rent is claimed, and which the
landlord may enforce by distress and sale of the tenant's
goods and chattels. (Dissenting opinion.) Scruggs v. Gib-
son, 40 Ga. 511, 524.
Reference to Contract. — This section does not relate or re-
fer to the rent contract which is the cause of action. Col-
lins v. Taylor, 128 Ga. 789, 791, 58 S. E. 446.
What Constitutes Rent. — Under the statutory system es-
tablished by the code, compensation by one for the joint use
of a railroad terminal as tenant of the other use is, in its
nature and character, rent, and may be collected by distress
warrant, under this section, sued out by the landlord com-
pany on affidavit setting forth and claiming a specific
amount as due for rent, the tenant having, of course, a right
to controvert the claim by counter-affidavit, as may be
done in other cases of distress for rent. Rome Railroad Co.
v. Chattanooga, 94 Ga. 422, 21 S. E. 69.
Double Rent. — Where a tenant holds possession of the
[ 1041 ]
rented premises beyond the term for which the same were
rented, the jury, upon the trial of an issue formed under the
provisions of this section may find a verdict for double the
rent stipulated to be paid. Richardson v. Harvey, 37 Ga.
224.
Where a tenant holds possession of the rented premises
beyond the term for which the same were rented, the jury,
upon the trial of an issue formed under the provisions of
this section may find a verdict for double the rent stipulated
to be paid. Richardson v. Harvey, 37 Ga. 224.
Rent Payable in Specifics. — A distress warrant under this
section may issue for rent payable in specifics before the
same becomes due, when the tenant is removing his prop-
erty. The landlord can state in his affidavit the value of
the specifics agreed to be paid. Rosenstein v. Forester, 57
Ga. 94.
A landlord may collect his rent by a distress -warrant,
even though the rent be payable in specifics, the value of
which is not fixed by the contract. Toler v. Seabrook, 39
Ga. 14.
Demand of Payment. — Except in cases of special liens for
rent on crops made on the land rented under § 3340, a land-
lord may distrain for rent without any previous demand for
payment from his tenant or without the allegation thereof in
affidavit. Buffington v. Hilley, 55 Ga. 656; Hill v. Reeves,
57 Ga. 32; McDougal v. Sanders, 75 Ga. 40.
Removal before Due — Purpose of Removal — Fraud. — "It
is contended that the mere fact that a tenant is seeking to
remove his goods from the premises will not justify the suing
out of a distress warrant before the rent is due, but that
the removal contemplated must be fraudulent, or with some
intent or purpose to deprive the landlord of his rent, or
to hinder, obstruct or delay him in the collection of it. We
think, however, that, in the case of agricultural tenants,
what the statute* has in view as to commercial crops, though
it may be otherwise as to ordinary property, is the mere
removal and not the purpose of it." Daniel v. Harris, 84
Ga. 479, 480, 10 S. E. 1013.
Same — Same — Selling Crop to Pay Money Rent. — The de-
fendant contended that the rent was payable in money, and
that he was selling a part of the crop to raise the money
for the purpose of paying the rent to his landlord. The
court instructed the jury to the effect that if they believed
this to be true, they should find against the distress war-
rant. The court held, that the charge was more favorable
to the defendant than the law authorized. Little v. Lary, 12
Ga. App. 754, 78 S. E. 470.
Same — Where Promissory Note Given. — Where the tenant
has given promissory notes for rent, the landlord has right
to distress before due under this section. So does the trans-
feree of such note. International Agr. Corp. v. Powell, 31
Ga. App. 348, 120 S. E. 668.
Same — Agricultural Tenants — Application to
ants. — It was suggested in Daniel v. Harris, 8-
S. E. 1013, that while the sale of any part of
an agricultural tenant gives the landlord a right to distress-
under this section, yet the same rule does not always apply
to other tenants, as for instance, merchants. Estill v.
Savannah v. Bank, etc., Co., 138 Ga. 610, 75 S. E. 659.
Same — Merchant Selling Goods. — A merchant may sell and
dispose of a considerable amount of his stock, including all
of a certain class, at a reduced rate and with the intention
of not replacing these goods, even though the value of the
stock is thereby greatly reduced, without being subject to
a distress for rent under the part of this section, relative to
tenants seeking to remove their goods from the premises.
Estill v. Savannah Bank, etc., Co., 138 Ga. 610, 75 S. E.
639.
Rent Must Be Due on Removal Taking Place. — Where a
distress warrant alleged that the debt was past due, and
the defendant was removing the rents and crops from the
rented premises, but the plaintiff's evidence showed that
the debt was not due, the proceedings should have been
dismissed. Such process is in derogation of common law and
common right, and the statute giving it must be strictly
construed and literally pursued. Scott, etc., Co. v. Russeil.
72 Ga. 35.
Same — Evidence Sufficient to Support. — The plain-
tiff's testimony that in a conversation not in the defend-
ant's presence a named person told him that the defendant
"had out two bales of cotton, and * * * was going to move
the two bales" away the next day, being inadmissible as
hearsay is insufficient to support a distress, under this
section for rent before due. Dver v. Cannon, 24 Ga. App.
304, 100 S. E. 723.
A distress warrant will not lie for rent until the same is
due, unless the tenant is removing his goods from the
premises or seeking to do so under this section. James v.
Benjamin, 72 Ga. 185.
Warrant — Contents — Setting Out Rent Due Where an
Other Ten-
\ Ga. 479, 10
the crops of
§ 3701
LANDLORD AND TENANT
§ 3702
affidavit to obtain a distress warrant sufficiently states the
facts upon which such a warrant may lawfully issue, it is
not necessary for the warrant itself to "set out the reasons
why rent was due, as set forth in the affidavit." The fail-
ure of the warrant to do so does not render it invalid, if in
other respects it contains all that is legally requisite. Call-
away v. Phillips, 95 Ga. 801, 22 S. F. 704.
Warrant as Final Process— Nature of Suit After Levy.—
A distress warrant, unresisted, is final process of itself.
Smith v. Green, 34 Ga. 178, 181. After levy, it is more in
the nature of a suit terminated than of a suit pending.
Sturgis v. Frost, 56 Ga. 1S8.
Distress is a final process under which the property may
be levied in satisfaction of the debt, unless the tenant makes
oath that the same or some part thereof is not due, in
which case it is the duty of the levying officer to return the
property to the court having cognizance. Smith v. Green,
34 Ga. 177.
Warrant Inchoate Prior to Distress— Priority Over Trustee
in Bankruptcy.— The lien of the landlord for rent prior to
distress is inchoate, and covers no specific property, and
gives no priority over the lien given to the trustee in bank-
ruptcy. Act July 1, 1898, c. 541, § 47a, 30 Stat. 557 as
amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840
(Comp. St. 1913, § 9631). Southern Ry. Co. v. Wilder, 231
Fed. 933.
Affidavit — Description of Property. — It is not necessary, in
an affidavit to procure a distress-warrant for rent due, to
specify the particular premises out of which the rent arises.
But some description may be necessary where a distress
is issued for rent not due under this section because it only
lies where the tenant is removing the property from the
premises. Scruggs v. Gibson, 40 Ga. 511.
Special Lien — Crop Grown on Land. — The special lien
which covers the crop from maturity is only for the rent of
the land which produces it; all other liens for rent attach
only from date of levy by distress warrant. So that, as the
rent of the land producing this cotton was only $30.00, and
the judgment was for more, §40.00, even if a distress war-
rant had been levied after the cotton was bought by W, it
could have availed only for $30.00, the amount of the
special lien under this and the following section. Worrill v.
Barnes, 57 Ga. 404.
Tenant Liable Though He Sub-rented. — The landlord has
the right, under this section to sue out a distress warrant
against a tenant for rent due and unpaid, although he may
have permitted another party to use and occupy the prem-
ises. Willingham v. Faircloth, 52 Ga. 126.
Liability of Sub-Tenant to Tenant. — One who rents land
and sublets it to a third person stands in the relation of
landlord to the sub-tenant and may have a distress war-
rant for his rent under this section. Harrison v. Guill, 46
Ga. 427.
Right of Re-entry. — The failure of a tenant to pay rent
gives the landlord the right of immediate re-entry and
dispossession. Huff v. Markham, 70 Ga. 284.
Distress After Termination of Relation. — If the relation of
landlord and tenant existed at the date when an obligation
for rent was incurred, the fact that such relation ceased be-
fore the landlord proceeded to enforce his claim by distress
warrant, would not affect his right so to do, or render such
proceeding illegal. Tyner v. Slappey, 74 Ga. 364.
Counter-Affidavit — Sufficient Allegation. — A distress war-
rant issued upon an affidavit alleging that the rent dis-
trained for "is now due and unpaid" is sufficiently met by
a counter-affidavit alleging that "the sum distrained for
under the warrant issued * * * was not due at the time
of issuing said warrant." Feagin v. McCowen, 115 Ga. 325,
41 S. F. 575. See note to § 3702.
Garnishment as Collateral Proceeding. — Upon the pro-
ceeding under this section no garnishment is authorized,
nor is it, nor can it be, the basis of a collateral or other
proceeding to obtain general judgment for the rent debt;
but this section is a final process of itself, under which the
property of the tenant may be levied and sold to satisfac-
tion, "as in cases of other executions." Smith v. Green,
34 Ga. 177, 181.
A set-off of items entirely independent of and separate
from the contract of rent can not be made against the dis-
tress warrant. McMahan v. Tyson, 23 Ga. 43; Tohnson v.
Patterson, 86 Ga. 725, 13 S. F. 17; Little v. Lary, 12 Ga.
App. 754, 78 S. F. 470.
Malicious Prosecution. — Damage to business, or the loss
of profits, sustained after commencement of the suit, can
form no part of the recovery. Sturgis v. Frost, 56 Ga. 188.
See 9 Fnc. Dig. 157.
§ 3701 (§ 3125.) Lien.— The landlord's lien for
liis rent shall attach from the time of levying his
distress warrant, but it shall take precedence of
no lien of older date except as to the crop raised
on the premises.
Cross References. — For a full treatment of the remedies
for the recovery of rent, see 8 Cum. Dig. 62-78; 8 Fnc. Dig.
606-638. For a treatment of agricultural liens, see 1 Cum.
Dig. 344-353; 1 Fnc. Dig. 299-314. As to how a distress
warrant is issued, see § 5390. As to landlord's special lien,
see § 3340.
Editor's Note. — This section should be studied in connec-
tion with §§ 3340, 3341, 3342 and 3700. The five sections
together established the landlord's rights to liens for rent.
It will be noticed that while §§ 3340 and 3341, in dealing
with special and general liens specify the time from which
such liens shall date, they do not fix the time from which
they shall attach. That is left to this section.
The latter part of this section in declaring that "it shall
take precedence of no lien of older date except as to the
crop raised on the premises" is probably only a general
statement of the rules more specifically laid down in §§
3340 and 3341, concerning this point. Reference should be
had to those sections for an explanation and treatment.
Priority — Crop Raised on Land. — It is clear that, by this
section, the lien of the landlord, upon the crop, is superior
to all other liens. As to other property than the crop, the
lien only attaches from the levy of the warrant, but as to
the crop, it has a preference over all other liens. Toler v.
Seabrook, 39 Ga. 14, 18.
The cotton was made on the land, and the lien of the
landlord for his rent was the highest claim upon it under
this section. Harrison v. Guill, 46 Ga. 427, 430.
Older Liens Take Precedence. — Inasmucn as the landlord's
lien arises only upon the levy of the distress warrant the
rent having accrued long after the mortgage was given,
the mortgage takes priority over the lien. Garmanv v.
Lawton, 124 Ga. 876, 881, 53 S. F. 669.
Same — Judgment Lien — This lien specified in the contract
between the landlord and tenant, set forth in the record,
(not being for the crop raised on the premises) did not take
precedence as to payment of an older judgment lien against
the defendant under this section. Levy v. Twiname, 42 Ga.
249.
Same— Over Liens Under §§ 3340, 3341. — A landlord's
general lien for rent under § 3340 and 3341 is inferior to the
lien of mortgages executed before the levying of the dis-
tress warrant under this section. Preetorius v. Anderson,
236 Fed. 723.
Lien Commences When Distress Issues. — The lien of the
landlord, except on the crop, does not commence until his
distress warrant issues under this section. Hobbs v. Davis,
50 Ga. 213, 214.
Code Distress Equivalent to Common Law Distress. — In
Henderson v. Mayer, 225 U. S. 631, the opinion by Mr.
Justice Lamar thus states in substance the effect of the
Georgia statute: That it expressly (§ 3329) "establishes
liens in favor of landlords;" that it gives them (§ 3700)
"power to destrain for rent as soon as the same is due;"
that it declares (§ 3340) that they "shall have a general
lien on the property of the tenant liable to levy and sale
* * * which dates from the levy of the distress warrant to
enforce the same;" that "prior to levy it covers no specific
property, and attaches only to what is seized under the
distress warrant," this section and in this respect "is the
full equivalent of a common-law distress, the lien of which
is held not to be discharged by § 67f." Howard v. Chicago
Title Co., 220 Fed. 772, 774.
Cited in Fourth Nat'l Bank v. Swift & Co., 160 Ga. 372,
376, 127 S. F. 729.
§ 3702. (§ 3126.) Lien for provisions.— Land-
lords may have, by special contract in writing, a
lien upon the crops of their tenants for such
stock, farming utensils, and provisions, furnished
such tenants for the purpose of making their
crops; and such lien shall be enforced in the
manner prescribed elsewhere in this Code. Acts
1866, p. 141; 1873, p. 43.
For a full treatment of liens for supplies, see 1 Cum. Dig.
344-349; 1 Fnc. Dig. 297-302.
Editor's Note. — This section, down to the semicolon, was
codified verbatim from the first section of the Act of 1866,
p. 141. The provision that it should be enforced "in the
manner prescribed elsewhere in this code" was added by
the codifiers. Now § 3 of the Act of 1866 provided that the
lien created should be enforced as the liens on steamboats
were enforced. But this was omitted by the code and the
clause referred to above added. It will be noticed that the
[ 1042 ]
3703
LANDLORD AND TENANT
§ 3705
ct of 1873, p. 43 is also cited as the source of the section,
hat act enumerated more fully the supplies for the fur-
ishing of which it was intended to give the landlord a
sn. Then the Act of 1873 provided that the hen should be
iforced in the manner prescribed in the Act of 1865-66 for
le enforcement of the factor's lien, with certain enumerated
tceptions. But when the Act of 1873 was codified in §
>78 of the Code of 1873 this provision was omitted.
By the Acts of 1875, p. 20 the section was amended so
lat the landlord might enforce the lien in the same man-
ar as liens on personalty are enforced under § 1991 of the
)de of 1873. This amendment appeared in the Code of
582 as paragraph 1 of the section (§ 1978) and so it is
rovided in the same section of this Code (§ 3348). It has
(so been held by the courts that a landlord's lien for sup-
lies must be foreclosed by § 3366 (§ 1991 of the code of
573) and that it can not be done by distress warrant. (See
le case of Jones v. Blackwelder, 16 Ga. App. 345, 85 S. E.
!9, and the cases cited; see also the note to § 3348.) Thus
will be seen that when this section (§ 3702) states that it
lall be enforced in the manner as "provided elsewhere ui
lis code" it evidently means as provided in § 3366.
This section has provided, from the very first, that the
en must be created by a "special contract in writing." It
as so provided in the act from which it was taken as well
s in the Act of 1873 from which § 3348 of this code (§ 1978
f the code of 1873) was taken. But when § 1978 of the
lode of 1873 was amended by the Acts of 1875, p. 20, as
bove explained, it was provided that the lien might arise
-cm the operation of law as well as by a special contract
l writing, and so the section was changed in the code of
382 (§ 1978, par. 1) to correspond. The Act of 1875 did not
lention the similar provision of this section and the codi-
ers did not make the change. But the Act of 1875 pres-
ided that all conflicting laws were thereby repealed so it
; to be presumed that so much of this section as provides
hat the lien must be created "by a special contract in writ-
ng" was thereby modified to conform, so that it is likely
hat the law upon this subject is now properly stated in
3348, notwithstanding this section.
It will be noticed that Wyatt v. Turner, 37 Ga. 640, in
he note below, which was decided before the act of 1875,
;olds that a' promissory note is not a sufficient compliance
nth the section as a contract in writing. For cases since
he Act of 1875 on this point, see- the note to § 3348.
The few cases below have been decided under this section,
<ut for a comprehensive treatment of the subject, see the
lote to § 3348.
Sufficiency of Promissory Note as Writing.— "The note
riven for the advances was a simple promissory note, and
ailed to show any intention to create a lien on the crop; it
vas a mere promise to pay so many dollars. This was not
vhat the statute intended by the words 'special contract in
vriting.' This special contract may be embraced in a promis-
sory note, but there must be written evidence of the con-
xact in order to create such a lien. 'Landlords may have,
jy special contract in writing, a lien upon the crops of their
:enants,' are the words of the statute. Such being the stat-
ute, the Court erred in holding that a promissory note,
without any special contract in writing showing an inten-
tion to create a lien, was such a lien as contemplated by
the statute." Wyatt v. Turner, 37 Ga. 640, 642. See the
Editor's 'Note to this section.
Necessity for Relationship — Demand. — In order to estab-
lish a lien for supplies, etc., under this section it must ap-
pear that the relation of landlord and tenant existed be-
tween the parties, and that a demand for payment was
made before foreclosure. See § 3366 (1). .As to T. neither
of these conditions satisfactorily appears, and it follows that
as the facts appear in this record M. had no lien on the
property of T. Saterfield v. Moore, 110 Ga. 514, 516, 35 S.
E. 638.
Tenant's Remedy— Counter Affidavit Not Sole Remedy.—
Where the landlord forecloses his lien for supplies, sells the
crop at private sale, and the tenant brings trover to re-
cover the crop, it is error to charge that the tenant's sole
remedy is by counter-affidavit. Knowles v. Stegall, 120 Ga.
451, 48 S. E. 124.
§ 3703. (§ 3127.) Exempt articles paid for rent.
— In all cases where landlords shall rent lands,
and it is agreed that the tenant shall pay the land-
lord a part of the crop or crops produced on the
lands so rented, for the use of the same, and the
tenant shall in good faith deliver to his landlord,
in discharge of said rent, the part of the crop
agreed on, said articles so delivered shall be dis-
charged from the lien of any judgment, decree,
or other process whatsoever against said tenant.
Acts 1884-5, p. 91.
As to exemption where relation of landlord and cropper
exists, see § 3707.
This section of the code was taken from the Acts of 1884-
5. p. 91. While that act makes no reference to either the
Act of 1853-4, p. 54, or where the Act is codified, cude § 2289
(Code of 1882) it is dealing with the same subject, and as
was said in the case of Duncan v. Clark, 96 Ga. 263, 267, 22
S. E. 927, is really the same in substance except with the
proviso, that the contract be in writing and tne rent not
exceed one half of the crop, omitted. We think, however, that
the court should have added, "except that by § 2289 of the
Code of 1882 (the last code in which it appeared) the rem
was totally exempt from levy for the debts of the tenant,
while it appears from reading this section, or the Act, that
it is now exempt from judgment against the tenant only
after it has been delivered to the landlord." We point this
out because § 2289 of the Code of 1882 was omitted from the
subsequent codes (although the table of corresponding sec-
tions as found in the Code of 1895 erroneously indicates that
that section was included in the Code of 1895 as § 3131.) and
the case cited above states that the Act of 1884-5, except as
to the proviso being omitted was to the same effect as the
section and "was not, relating to the question in hand, af-
fected by the Act of 1884."
That case pointed out that "unless the rent agreed to be
paid is a part of the crop in kind, the landlord can not take
it from the tenant free from liability to be levied on under
process against the latter." Consequently where the rent
in that case was to be paid in money and the tenant turned
over a part of the crop in payment, it was not exempt from
a judgment against the tenant under this section and though
the landlord had a superior lien under the Code he could
take advantage of it only by "sale under legal process and
not by mere detention or retention of the property in pur-
suance of delivery by the debtor." To the same effect was
Toler v. Seabrook, 39 Ga. 14, which was decided under §
2289 of the Code of 1882. See in this connection, Almond v.
Scott, 80 Ga. 95, 4 S. E. 892. From the case of Duncan v.
Ciark, 96 Ga. 263, 22 S. E. 927. It appears that the reason
supporting the rule of this section that the landlord "could
file a claim to the property" after it has been delivered to
him in payment of rent in kind and then levied on by a
judgment creditor of the tenant is that, since it is a specific
payment of the rent, title has passed to him and he is claim-
ing his own property; while in the case of a delivery of
kind to pay money rent, no title is deemed to have passed
because the landlord and tenant, "by collusion between
themselves could easily defraud creditors of the latter — by
delivering to the landlord more than enough of the crops
to satisfy the landlord's lien." Though no section of the
Code is cited, the case of Durden v. Hill, 75 Ga. 228, is an
exact application of the principles of this section. See also
DeVaughn v. Howell, 82 Ga. 336, 9 S. E. 173. Ed. Note.
§ 3704. (§ 3128.) Interest.— All contracts for
rent shall bear interest from the time the rent is
due, and judgments upon suits for rent may be
rendered at the first term. Act 1811, Cobb, 901.
As to interest on accounts in general, see § 3435. As to
judgment by default, see § 5661.
The jurisdiction of the court to render judgment at the
first term sufficiently appeared when it was shown that the
suit was for rent without averment 6f the relation of land-
lord and tenant in expressed terms. The language of the
cede is that "judgments upon suits for rent may be rendered
at the first term." And the fact that this was a suit for
rent appeared both from the declaration, which stated that
the debt was for rent, and from the note, a copy of which
was annexed to the declaration. Simpson v. Earle, 87 Ga.
215, 216, 13 S. E. 446.
Cited in Rimball Co. v. Rogers, 17 Ga. App. 562, 564, 87
S. E. 848.
§ 3705. (§ 3129.) Title to cropper's crop in
landlord. — Whenever the relation of landlord
and cropper exists, the title to and right to con-
trol and possess the crop grown and raised upon
the lands of the landlord by the cropper shall be
vested in the landlord until he has received his
part of the crops so raised, and is fully paid for
all advances made to the cropper in the year said
[ 1043 ]
§ 3705
LANDLORD AND TENANT
§ 3705
crops were raised to aid in making said crops.
Acts 1889, p. 113.
Cross References.— For a full treatment of the relationship
of landlord and cropper, see 4 Cum. Dig. 502-508; 4 Enc.
Dig. 70-73. As to trover and conversion, see 4 Cum. Dig.
495, 496; 4 Enc. Dig. 67, 68. As to action by landlord against
receiver of crop, see § 3706.
Editor's Note.— Reference should be had to the Editor's
Note under § 3707 where this section is discussed.
Creation of Relationship. — If the owners of land employ
one to work on the same, and agree to give him a part cf
the crop for making it, then the title would be in the land-
owners, and they could take it and give him off his part;
but when the landowners turn over the same to one who is
to farm thereon, and from the crop he is to pay them six-
teen hundred pounds of lint cotton, this creates the relation
of landlord and tenant; the title to the cottdn is in the
tenant, and the landlords have only a lien thereon, and can
not take the same without the consent of the tenant. Wal-
ley v. Williams, 75 Ga. 272.
Interest of Cropper before Settlement. — Before there has
been a settlement paying the landlord in full for advances
and rent, the tenant has such an interest, under this sec-
tion, as will sustain an allegation of joint ownership with
the landlord. Parker v. State, 23 Ga. App. 592, 99 S. E.
220; Randolph v. State, 16 Ga. App. 328, 85 S. E. 258.
Same — Mortgageable Interest.— "While the cropper has a
'mortgageable interest' in the crops, such interest can not
be subjected to the mortgage debt until the cropper has
acquired title; and this he can not do before a division be-
tween himself and the landlord. The 'interest' may ripen
into a title, but there can be no levy before it does. See,
in this connection, Jordan v. Jones, 110 Ga. 47, 35 S. E. 151."
Fountain v. Fountain, 10 Ga. App. 758, 759, 73 S. E. 1096.
See Editor's Note to § 3707.
Same — Laborer and Wage Earner. — If he is to work him-
self, he is a laborer. It has been held that the part of the
crop to which the cropper is entitled is in the nature of
wages. McElmurray v. Turner, 86 Ga. 215, 12 S. E- 359;
Deloach v. Delk, 119 Ga. 884, 47 S. E. 207; Vinson v. State,
124 Ga. 19, 20, 52 S. E. 79. See also Taylor v. Coney, etc.,
Co., 101 Ga. 655, 657, 28 S. E. 974; Betts v. State, 6 Ga.
App. 773, 65 S. E. 841.
Landlord's Recovery for Loss of Labor. — The landowner
can not recover for the loss of time by cropper and family
on account of sickness although the cropper is only hired to
raise the crop. Central Georgia Power Co. v. Parker, 144
Ga. 135, 137, 86 S. E. 324.
Possession of Land. — If the accused were a cropper (and
he seems to have been, as evidence shows that he worked
on halves), then, by the express terms of the statute, "the
possession of the land remained in the owner." See Parks
v. Langley, 17 Ga. App. 761, 88 S. E- 695; Kiker v. Jones,
20 Ga. App. 704, 93 S. E. 253; Taylor v. Coney, etc., Co.,
101 Ga. 655, 657, 93 S. E. 253; Betts v. State, 6 Ga. App.
773, 65 S. E. 841; Cullars v. State, 28 Ga. App. 113, 115, 110
S. E. 330.
Title to Crop — When Goes to Cropper. — Where, under the
terms of a contract between an owner of land and another
who agrees to cultivate it on shares, the relation of landlord
and cropper is created, the title to all crops grown on the
land remains in the landlord until there has been an actual
division and settlement whereby he receives in full his share
of the produce. Wadley v. Williams, 75 Ga. 272; Almand v.
Scott, 80 Ga. 95, 4 S. E. 892; Taylor v. Coney, etc., Co., 101
Ga. 655, 657, 28 S. E. 974; Smart v. Hill, 29 Ga. App. 400,
116 S. E. 66.
Control of Crop by Landlord. — See Porks v. Langley, 17
Ga. App. 761, 88 S. E. 695; Almand v. Scott, 80 Ga. 95, 99,
4 S. E. 892.
Laborer's Lien. — A cropper is one who works for wages
payable in part of the crop produced, and is a laborer, and,
as such, may maintain a laborer's lien upon the crop as
the property of his employer. McElmurray v. Turner, 86
Ga. 215, 12 S. E. 359; Lewis v. Owens, 124 Ga. 228, 52 S. E-
333; Vinson v. State, 124 Ga. 19, 20, 52 S. E. 79; Faircloth v.
Webb, 125 Ga. 230, 53 S. E- 592; Garrick v. 'Jones, 2 Ga.
App. 382, 58 S. E. 543. See §§ 3334, 3335. Howard v. Frank-
lin, 32 Ga. App. 737, 124 S. E. 554. See § 3334. See 4 Cum.
Dig. 505; 4 Enc. Dig. 71.
Same — Relation as Partnership — Cropper's Maintenance of
Trover. — That the cropper furnishes the labor necessary to
the making of the crop, and is to receive a portion thereof
as compensation for his services, does not place him in the
situation of a partner having an undivided interest in the
product of his labor. Padgett v. Ford, 117 Ga. 510, 43 S.
E. 1002, and cit. So, if the owner of the land wrongfully
refuses to comply with his obligations in the premises, the
remedy of the cropper is to assert a laborer's lien on the
f 1044 ]
crops grown by him, McElmurray v. Turner, 86 Ga. 215, 12i
S. E- 359; for he can not maintain against the landlord am
action of trover, the title to the crops being in the latter.
Bryant v. Pugh, 86 Ga. 525, 529, 12 S. E. 927; DeLoach v.
Delk, 119 Ga. 884, 47 S. E. 204; Smart v. Hill, 29 Ga. App.
400, 116 S. E. 66. See note to § 3707.
Same — Prerequisites to Assertion. — A cropper, who under
the law has the status of a laborer, Appling v. Odom, 46
Ga. 583; DeLoach v. Delk, 119 Ga. 884, 47 S. E- 204, is ordi-
narily not entitled to enforce such a lien against his land-
lord without showing full compliance on his part with the
terms of the agreement, Harvey v. Lewis, 19 Ga. App.
655, 91 S. E. 1052, except that such a lack of full performance
by the cropper will not defeat the foreclosure of such a lien
when, without fault on his part, such failure to fully comply
with his contractual obligation is occasioned by processes of
the Law, Lewis v. Owens, 124 Ga. 228, 52 S. E- 333, or by
the unauthorized acts and conduct of the landlord. Ballard
v. Daniel, 18 Ga. App. 449, 89 S. E- 603; Haralson v. Speer,
1 Ga. App. 573, 58 S. E. 142; Payne v. Trammell, 29 Ga.
App. 475, 115 S. E. 923.
Same — Discharge of Cropper Because of Conversion. —
Where, it indisputably appears that before the cropper had
completed the terms of his agreement by making and
gathering the crop, and before the landlord had been fully
settled with, the cropper violated his contract of employment
by unlawfully converting to his own use a portion of the
crop, Williams v. Mitchem, 151 Ga. 227, 106 S. E. 284, and
that in consequence of such unlawful conversion the landlord
thereupon discharged the cropper from his employment, and
thereafter himself completed the contract by finishing the
gathering of the crops, the cropper can not in such a pro-
ceeding be heard to say that he fully completed his contract
in making and gathering the crop, and that consequently he
is entitled to a laborer's lien as provided by §§ 3334 and
3335. Payne v. Trammell, 29 Ga. App. 475, 115 S. E. 923.
. Trover Against Cropper. — See 4 Cum. Dig. 507.
An action in trover will lie where the relation of land-
lord and cropper exists, the title to all the crops on the
rented land being in the landlord until there has been an
actual division and settlement under this section. DeLoach
v. Delk, 119 Ga. 884, 47 S. E. 204; Welch v. Lindsey, 27 Ga.
App. 164, 107 S. E. 891.
If the relation of landlord and cropper existed, and there
was not an actual division and settlement between the land-
lord and cropper according to the terms of the contract, the
landlord could bring against the cropper an action of trover
to recover the share of the crop belonging to himself and of
which the cropper was in possession. Harley v. Davis, 7
Ga. App. 386, 66 S. E. 1102.
Same — Amount of Recovery. — Where a landlord seeks by
bail-trover against his cropper to recover property, the title
to which the plaintiff holds merely as security for supplies
furnished, or other debts, and he elects to take a money
verdict, he can not recover more than the amount of the
debt for which the property stands as security. Way v.
Bailey, 18 Ga. App. 57, 88 S. E. 799.
Conversion — Appropriation to Cropper's Use. — It is a con-
version for a "cropper," as defined in § 3707, without con-i
sent of the landlord, to gather and sell a part of the crop
and apply the proceeds to his own use. The contract be-
tween the plaintiffs and defendant created the relation cf
"landlord and cropper," as denned in this section. Wil-
liams v. Mitchem, 151 Ga. 227, 106 S. E. 284.
Division, Settlement, as Affecting Title. — A charge which
in effect instructed the jury that a division of the crops
would prevent the landlord from recovering in an action of
trover, although there had been no actual settlement be-
tween the landlord and cropper, was erroneous. There must
be both division and settlement to prevent such action.
Harley v. Davis, 7 Ga. App. 386, 66 S. E. 1102.
Same — What Amounts to Division. — Where a cropper has
settled with his landlord for all advances made and has
delivered to the landlord the latter's part of all the crops
raised except certain cotton in the possession of the crop-
per which, under the terms of the contract, is to be divided
between the landlord and the cropper, a transformation by
the cropper of such remaining cotton into two bales of dif-
ferent weights, one weight representing the amount of cot-
ton that belongs to the landlord and the other weight repre-
senting the amount of cotton belonging to the cropper,
amounts to a division of the cotton, since each man's por-
tion is identified by the different weights; and, upon de-
livery by the cropper to the landlord of the bale representing
the landlord's portion of the cotton, the landlord's title to
the other bale is immediately divested from the landlord
and vested in the cropper under this section. This is true
even though both bales are at the same time placed by the
cropper in the landlord's possession. Thompson v. Price,
30 Ga. App. 653, 118 S. E. 598.
§ 3706
LANDLORD AND TENANT
§ 370;
Statement of Rule as to Advances. — The court erred in
failing to charge that title did not pass under this section
to tenant until advances are paid where it appears that the
landlord had made advances for which he had not been paid.
Smith v. Anglin, 14 Ga. App. 311, 80 S. E. 693.
Landlord Must Furnish Advances — Suretyship Insufficient.
—That the title to the crops will vest in the landlord until
paid for all advances, means that the landlord must actually
furnish the advances and not merely stand surety for the
:ropper to some other person who furnishes them. Rhodes
v. Verdery, 157 Ga. 166, 121 S. E. 221.
One item charged by R. to S. as an advance was $500 in
money. This money was obtained from N., cotton ware-
housemen, on a note signed by S. and indorsed by R. The
money was paid directly to S. by N. This was not an ad-
vance by the landlord to the cropper, as contemplated by
this section. Rhodes v. Verdery, 157 Ga. 162, 166, 121 S. E.
221.
Division of Crop Decreed by Equity — Collusion to Defeat
Creditor. — 'A division must be made at some time; but if
Dy collusion the landlord and the cropper attempt to de-
teat the creditor, by refusing to make a division, or other-
wise, undoubtedly equity would afford relief." Fountain v.
Fountain, 10 Ga. App. 758, 759, 73 S. E. 1096.
Crops Denned— Stock as Crop. — This section and §§ 3706,
and 3707, define the relations and rights of landlord and
:ropper only as to crops ; crops are the product of the soil
ind do not include the increase of live stock. Where a land-
lord furnishes to a cropper live stock, the increase of which
is to be raised by the latter on shares and to be divided
equally between the parties, their relation with reference
thereto is that of owners or tenants in common, and not
that of landlord and cropper. Fllis, McKinnon & Brown v.
EIopps, 30 Ga. App. 453, 118 S. E. 583.
Certainty of Meaning of Section. — "This statute in no un-
:ertain terms declares 'the title to and right to control and
possess' the crop is in the landlord until he has received his
share of the crop and been paid for all advances made to aid
n making the crop. It may seem that this law is harsh
Bid inequitable, but it can not be said to be ambiguous."
Goodson v. Watson, 125 Ga. 413, 414, 54 S. E. 84.
Indictment for Stealing — Title Alleged in Landlord. —
Where the relation of landlord and cropper exists, the title
tod the possession of the growing crops are in the land-
lord until his claims have been fully settled. Hence, in an
accusation of stealing or attempting to steal a portion of
the growing crop so owned and possessed, the ownership
should be alleged to be in the landlord, and not in the crop-
per. Betts v. State, 6 Ga. App. 773, 65 S. E. 841.
§ 3706. (§ 3130.) Landlord may recover crops
disposed of without his consent, — In all cases
where a cropper shall unlawfully sell or other-
wise dispose of any part of a crop, or where the
:ropper seeks to take possession of such crops,
Dr to exclude the landlord from the possession of
said crops, while the title thereto remains in the
landlord, the landlord shall have the right to re-
possess said crops by possessory warrant, or by
any other process of law by which the owner of
property can recover it under the laws of this
State. Acts 1889, p. 113.
Cross References. — For a full treatment of the subject,
see 4 Cum. Dig. 503, 504; 4 Cum. Dig. 70 et seq. As to the
actions of Trover and Conversion, see 4 Cum. Dig. 495: 4
Enc. Dig. 67. As to possessory warrant, see 9 Cum. Dig.
518; 10 Enc. Dig. 517; and see 1 Cum. Dig. 887. As to the
penalty for illegal sale by cropper or refusal to deliver by
landlord, see Penal Code, §'729.
Editor's Note. — Section 3705, this section, and § 3707
should be studied in conjunction with each other. See the
notes under those sections.
Crops Defined— Live Stock Not Included. — This section
defines the relations and rights of landlord and cropper only
as to crops; crops are the product of the soil and do not in-
clude the increase of live stock. Ellis v. Hopps, 30 Ga.
App. 453, 118 S. E. 583.
Possessory Warrant.— Under the provisions of this sec-
tion in all cases where a cropper unlawfully sells or other-
wise disposes of any part of the crop, or seeks to exclude
the landlord from possession of the crops or any portion
thereof, while the title thereto remains in the landlord, the
landlord has the right "to repossess said crops by pos-
sessory warrant." Landrum v. Smith, 1 Ga. App. 215, 57 S.
913; Ayers v. Swall, 17 Ga. App. 519, 87 S. E. 763; Smith
v. Brinson, 21 Ga. App. 169, 94 S. E.
See § 5371.
Same — Does Not Lie for Immature Crops. — Possessory
warrant lies only for the recovery of personal property
Immature growing crops are not "personal property," but
are realty; hence, possessory warrant is not one of the
remedies allowed to the landlord against his cropper, under
the provisions of this section, so far as such crops are con-
cerned. Gainous v. Martin, 10 Ga. App. 210, 72 S. E. 1100.
Same — Against Cropper Where Possession Disposed of. —
The cropper having sold the bale of cotton in question and
the landlord's right of possession thereof being unquestioned,
the error, if any, in refusing to dismiss the possessory war-
rant upon the ground that it was brought against the crop-
per to recover possession of an undivided half interest in
personalty, was not harmful to the defendant. Ayers v.
Swall, 17 Ga. App. 519, 87 S. E. 763.
Same — Imprisonment under Warrant. — After the cropper
admitted sale of the cotton, the landlord's right to pos-
session, and refusal to turn over the money, the justice had
a right to imprison him under § 5377. Ayers v. Small, 17
Ga. App. 519, 87 S. E. 763.
Same — No Cause of Action Shown. — Where the crop had
been divided and put in separate houses on the land, even
though plaintiff testifies that they were not to be removed
until final settlement, where it did not appear that the crop-
per was seeking to remove the crop or had done any act set
out, in this section as ground for providing by the landlord,
there was no cause of action. Visage v. Bowers, 122 Ga.
760, 50 S. E. 952.
Same — Allegation of Grounds Under Section 5371. — Where
the landlord seeks to obtain a possessory warrant under this
section, alleging that the cropper is excluding him from pos-
session and fails to pay for supplies and advances made to
him it is not necessary to allege and prove any of the
grounds for obtaining a possessory warrant under, § 5371.
Visage v. Bowers, 122 Ga. 760, 50 S. E. 952.
Trover. — Where the relation of landlord and cropper ex-
ists, the landlord may assert his title to the crops by trover.
Cowart v. Dees, 7 Ga. App. 601, 67 S. E. 705.
Same — Against Purchaser of Crop. — Where the relation is
that of landlord and cropper, as the title to the crops under
the statute remains in the landlord until actual division and
settlement a bona fide purchaser of such a severed crop
will not be protected in an action of trover brought against
him by the landlord. Kirkland v. Wallace, 29 Ga. App. 238,
114 S. E. 649.
Prior Payments of Debts Due Cropper. — The landlord may
be subjected to the prior payment of an indebtedness he
owes the cropper before he recovers possession. Cowart v.
Dees, 7 Ga. App. 601, 67 S. E. 705.
Withholding All of Crop Until Gathered.— Even where the
contract provided that the cropper should gather, gin and
hold, the cropper has same discretion in this and may
wait until all the crop is gathered before he gins and
sells it, without laying himself liable in trover. Forehand
v. Jones, 84 Ga. 508, 10 S. E. 1090.
§ 3707. (§ 3131.) Cropper.— Where one is em-
ployed to work for part of the crop, the relation
of landlord and tenant does not arise. The title
to the crop, subject to the interest of the cropper
therein, and the possession of the land remain
in the owner.
Cross References. — For a full treatment of this subject,
see 4 Cum. Dig. 504 et seq. ; 4 Enc. Dig. 70 et seq. As to
the "Labor Contract Act," see Penal Code, § 715. As to
exempt articles paid for rent in case of landlord and ten-
ant, see § 3703. For interference with relationship, see §§
3712-3715 (unconstitutional). As to penalty for failure to
pay advances or for landlord to illegally refuse to turn over
tenant's part, see Penal Code, § 729.
Editor's Note. — This section was codified from the case of
Appling v. Odom, 46 Ga. 585 which was decided in 1872. In
that case the cropper had executed a mortgage on his crop
and the question was what were the rights of the landlord
and mortgagee, respectively, before a payment for advances,
etc., had been made. Tt was there held that no person could
purchase or take a lien on the wages of the cropper until ail
advances, etc., had been paid. (See the note from Fountain
v. Fountain, 10 Ga. App. 758, 13 S. E- 1096, under § 3705
and the cases cited.) The court discussed the distinction
between a tenant and a cropper. It was said that "one (the
tenant) has the possession of the premises exclusive of the
landlord, the other has not. The one has a right for a fixed
time; the other has only the right to go on the land to
plant, work and gather the crop."
So the purpose of this section, it would seem, is to define
what is a cropper by showing the distinction between a
cropper and a tenant, pointing out that the cropper has
[ 1045 ]
§ 3707
LANDLORD AND TENANT
§ 3708
neither title to the crop nor a right of possession to the
land. Section 3705 takes up where this section leaves off and
regulates the rights between them. This section fixes the
title to the crop in the landlord; § 3705 gives the tenant
title to his part of the crop as wages after the landlord has
been paid in full. There is some overlapping of the cases
decided under each. Therefore the cases dealing with the
rights between the parties have been placed under § 3705
while those defining the relationship will be found under
this section.
Definition of Relationship— Distinction between Tenant and
Cropper. — The fundamental distinction between the relation-
ships of landlord and cropper and landlord and tenant is in
the fact that the status of cropper is that of a laborer who
has agreed to work for and under the landlord for a certain
proportion of the crop as wages, but who does not thereby
acquire any dominion or control over the premises up<<n
which such labor is to be performed, the cropper having the
right merely to enter and remain thereupon for the purpose
of performing his engagement; whereas a tenant does not
occupy the status of a laborer, but under such a contract
acquires possession, dominion, and control over the premises
for the term covered by the agreement, usually paying
therefor a fixed amount either in money or specifics, and in
making the crop performs the labor for himself and not for
the landlord. The vital distinction is in whether the person
making the crop does so as a laborer upon the premises
controlled by the landlord, or whether he performs the work
for himself upon premises over which he has possession and
control. Where in any given case it is necessary to de-
termine which o.f these relationships exists, the general rule
is applicable that the true intention of the parties should be
given effect. The fact that under the terms, of the contract
the person making the crop is to receive a designated pro-
portion thereof constitutes one of the distinctive earmarks
going to establish the status of a cropper; and whenever
under the terms of the contract he is thus "employed to
work for part of the crop," his status as a cropper thereby
becomes fixed. It is possible, however, for a contract of
landlord and tenant to be entered upon whereby the person
renting and taking over the land is to pay therefor a certain
fixed proportion of the crops which shall be made thereon
during the term of the tenancy, provided that the relation
of employer and employee does not exist, and provided that
the person making the crop is to receive possession and
control of the premises. Souter v. Cravy, 29 Ga. App. 557,
116 S. E. 231.
Same— Interpretation of Contract.— The legal relation of
the parties is to be determined, not by the statement that
the land was "rented," or that the owner was to receive a
part of the crop "as rent," but by the entire contract; and
the testimony tended to show that the legal relation of the
party who did the work was that of "cropper." Kiker v.
Jones, 20 Ga. App. 704, 93 S. E. 253.
Same — Distinction between Cropper and Contractor. — If
the agreement is, not that he shall perform services him-
self, but shall procure and furnish labor, he is not a servant,
but a contractor. Barron v. Collins, 49 Ga. 580; Duncan v.
Anderson, 56 Ga. 398; Vinson v. State, 124 Ga. 19, 20, 52 S.
E. 79.
Same— Partnership Relation.— It is now the settled law of
this State, that if one furnishes land or material and an-
other does the labor necessary to produce the thing to be
sold, and the latter receives a part of the profits as com-
pensation for his services, no partnership is created. Thorn-
ton v. McDonald, 108 Ga. 3, 33 S. E. 680; Thornton v.
George, 108 Ga. 9, 33 S. E- 633; Cherry v. Strong, 96 Ga.
185, 22 S. E. 707; Jordan v. Jones, 110 Ga. 47, 35 S. E. 151.
The analogous rule as to croppers, laid down in Appling v.
Odom, 46 Ga. 583, has been codified in this section. Smart
v. Hill, 29 Ga. Apr,. 400, 116 S. E. 66; Padgett v. Ford, 117
Ga. 508, 43 S. E. 1002, 510.
Same— Illustration.— "In Hancock v. Boggus, 111 Ga. 884,
36 S. E- 970, it is said: 'When it is shown that a landowner
entered into a contract with another person, by the terms
of which the owner was to furnish the land, stock, tools,
and supplies to make a crop, and the other person was to
do the work and receive a part of the crop so made, the
legal relation which existed between them was that of land-
lord and cropper.' See also Hackney v. State, 101 Ga. 512,
516, 517, 28 S. E. 1007." Williams v. Mitchem, 151 Ga. 227,
233, 106 S. E. 284.
Landlord Has No Lien. — Where the relation of landlord
and cropper exists under this section, there is no lien on
the crop in favor of the landlord for supplies furnished to
the cropper for the landlord has title. Fields v. Argo, 103
Ga. 387, 30 S. E. 29.
§ 3708. (§3132.) Duration of tenancy.— Where
no time is specified for the termination of ten-
ancy, the law construes it to be for the calendar
year; but if it is expressly a tenancy at will, then
either party may terminate it at will.
Cross References. — For a full treatment of this subject in
8 Cum. Dig. 34; 8. Enc. Dig. 561. As to the delivery of poo-
session at termination, see § 3697. As to how the relation-
ship is created, see §§ 3691, 3693. As to the remedies for the
recovery or possession, see 8 Cum. Dig. 75-87; 8 Enc. Dig.
638.
Statement of Rule. — Where a contract was made between
the purchaser and an adverse claimant in possession, whereby
the latter pays rent but no time of duration is fixed, it will
be adeemed a tenancy for the year. Willis v. Harrell, 118
Ga. 906, 45 S. E. 794; Western Union Tel. Co. v. Fain &
Parrott, 52 Ga. 19, 22; Cleveland, etc., Co. v. Stewart, 15
Ga. App. 657, 84 S. E. 174.
The words "the calendar year," in this section mean from
January 1st to December 31st next thereafter inclusive. See
§ 5. Byrne v. Bearden, 27 Ga. App. 149, 107 S. E- 782.
Not Applicable Where Contract — Even Though Terms
in Dispute. — Where, in a suit by a landlord against his ten-
ant to recover a sum of money claimed to be due him as
rent, the issue is as to whether the rent contract was for a
term of one year as contended by the landlord, or was by
the month, with the right in tlje tenant to vacate upon
giving a certain notice to the landlord as contended by the-
tenant, the rule by which the character of a tenancy is de-
termined when no time is specified for its termination,
which rule is found in this section, § 3708, is not applicable.
Buice v. McCarty-Johnstone Co., 28 Ga. App. 192, 110 S. E.
503.
It was error to charge the jury the provisions of this sec-
tion relative to the duration of tenancy where no time is
specified by the parties to the contract of rental, for the
plaintiff in this case declared upon an express contract of
rental for one year, and should not have the benefit of legal
principles applicable to an entirely different state of facts
from that laid in her petition. Harris v. Cleghorn, 121 Ga.
'314, 316, 48 S. E. 959.
Same — Where Minimum Duration Exceeds Year.
— The provisions of this section, that "where no time is
specified for the termination of tenancy, the law construes
it to be for the calendar year," has no application where by
necessary, implication a minimum duration is fixed in ex-
cess of a year, although the agreement may be otherwise
silent in regard to the term. Sikes v. Carter, 30 Ga. App.
539, 118 S. E. 430.
Monthly Payment of Rent Where No Term Fixed —
Tenancy at Will. — When a tenant, under a contract of rental
with the landlord, which provides that the rent is to be
paid monthly but specifies no time for the termination of
the tenancy, enters lawfully into possession of the premises,
and, after the expiration of the calendar year, remains in
possession thereof by permission of the landlord, who con-
tinues to receive the rent monthly, a tenancy at will is
created. Byrne v. Bearden, 27 Ga. App. 149, 107 S. E. 782.
Holding Over Without New Lease. — There being evidence
also authorizing the inference that the lease contract as
originally entered into was for a period of one year, and
that after the expiration of the year the tenant continued
in possession of the premises and continued to pay rent un-
der the terms of the contract, and continued to live on
from year to year, paying rent under the terms of the
original lease contract, it was error to fail to charge that
under such state of facts the law implies a renewal of the
original lease contract for a year, and that a tenancy from
year to year is created. Allen v. Montgomery, 25 Ga. App.
817, 105 S. E. 33; Beveridge v. Simmerville, 26 Ga. App. 373,
106 S. E. 212. ~
Where there is a lease for a year and the tenant, after
the expiration of the lease, by consent of both parties, re-
mains in possession of the premises and continues to pay
rent to the landlord under the terms of the lease, which rent
is accepted by the landlord, the law implies a renewal of
the lease for another year. Allen v. Montgomery, 25 Ga.
Ar-p. 817. 105 S. E. 33.
Same — Part of Premises. — Where one tenders the keys to
his landlord and they are rejected, but he nevertheless con-
tinues to use a part of the premises for storage, he is to be
treated as taking the premises and becoming liable for the
rent for the term of one year under this section. Brackin
v. Desverges, 18 Ga. App. 265, 89 S. E. 303.
Same — Same — Storage for Two Weeks. — A tenant from
year to year who gave notice of his intention to terminate
his tenancy at the expiration of the current year, and who
on the last day of the year tendered the keys to the land-
lord and upon his refusal to receive them put them in the
[ 1046 ]
§ 3709
LANDLORD AND TENANT
§ 3711
doors of the buildings, but nevertheless continued for two
weeks or more to use a portion of the premises for storing
some of his property previously placed thereon, held over
so as to subject himself, at the landlord's election, to be
treated as taking the premises and becoming liable for rent
at the prior contract rate for a further term of one year.
Cabanaugh v. Clinch, 88 Ga. 610, 15 S. E. 676.
Same — Leaving Sub-Tenant in Possession. — If at the end
of a given year, without giving the landlord any notice of
intention to terminate the tenancy, the tenant abandons the
premises, but leaves in possession another, who has prev-
iously been his subtenant, and if the latter then remains on
the property for an entire year and a portion of the suc-
ceeding year the original tenant is liable to pay the landlord
rent for these two years, at the contract rate. Roberson v.
Simons, 109 Ga. 360," 34 S. E- 604.
Same — Paying Rent by Month. — Where there was a writ-
ten contract for the prior year, and the tenants held over
expecting the landlord to prepare a new written lease which
he did not do but they held and paid rent by the month
as they had done under the contract, a rental for a year
will be implied under this section, with rent payable by the
month. May v. Adair, 22 Ga. App. 218, 95 S. E. 733.
§ 3709. (§ 3133.) Notice to quit.— Two months
notice is necessary from the landlord to termi-
nate a tenancy at will. One month notice is
necessary from tenant.
For a full treatment, see 8 Cum. Dig. 38; 8 Enc. Dig.
568. As to delivery of possession, see § 3697.
Right to Notice. — "The decisions have gone the length oi
holding, that the tenant at will is entitled to notice to quit,
and to emoluments." Cody v. Quarterman, 12 Ga. 386, 400;
Nicholes v. Swift, 118 Ga. 922, 924, 45 S. E. 708.
The term of a tenant at will does not expire at the in-
stance of the landlord until after the expiration of two
months after notice from his landlord to terminate the
tenancy. Harrell v. Souter, 27 Ga. App. 531, 109 S. E. 301;
Ryrm v. Bearden, 27 Ga. App. 149, 107 S. E. 702.
Purchaser Must Give Notice. — A purchaser of realty
from a landlord during the term of a tenant at will is en-
titled, upon notice as prescribed by law, to terminate the
tenancy, and thereafter to dispossess the tenant. See Wil-
lis v. Harrell, 118 Ga. 906, 45 S. E- 794; Tatum v. Padrcsa,
24 Ga. App. 259, 100 S. E. 653.
Effect of Giving Notice. — The tenant having brought
themselves into the position of mere tenants at will under
§ 3693, this section, applies to them. The two months no-
tice having been given, they were subject to eviction as
tenants holding over. Weed v. Lindsay & Morgan, 88 Ga.
686, 695, 15 S. E. 836; Nicholes v. Swift, 118 Ga. 922, 45
S. E. 708.
Service to Proper Agent of Tenant.— Though notice to
quit was not served upon the proper agent of the tenant,
yet if the tenant got the notice it is sufficient. Godfrey v.
Walker, 42 Ga. 563.
Effect of Failure to Give Notice. — It is beyond question
that a tenant from year to year, in order to terminate the
tenancy, must give notice of his intention to quit.
Whether in this State such notice must be for six months
as required at common law, or for one month as required in
this section of the Civil Code from tenants at will, it is not
necessary to decide, as in this case no notice whatever was
given to the plaintiff by the defendant of an intention to
terminate the tenancy. Roberson v. Simons, 109 Ga. 360,
362, 34 S. E. 604.
Plaintiff Must Prove Notice.— Where the landlord seeks
by summary process to dispossess his tenant upon the
ground that the latter is a tenant at will holding over after
the expiration of his term, and where the tenant, in his
counter-affidavit arresting the proceeding, alleges that his
term has not expired, there is presented an issue as to
whether the requisite two-months notice to vacate has been
given to the tenant by the landlord; and where the evidence
is silent upon this issue, the plaintiff can not prevail. It
follows therefore that a verdict for the defendant can not
be set aside upon the ground that it was contrary to law
and without evidence to support it. Harrell v. Souter, 27
Ga. App. 531, 109 S. E. 301.
Creation of Tenancy by Contract or Operation of Law
Immaterial. — There is no distinction recognized by our
Code between a tenant at will by express agreement and a
tenant at will by operation of law, so far as the right to
terminate it by either party is concerned, by giving the
required notice. If the tenant at will in either case does
not decide to occupy the premises any longer he can give
the landlord an one month's notice and quit. If, on the
other hand, the tenant is an insolvent vagabond, or other- J
wise objectionable, and the landlord desires to get rid of '
him, he is allowed to do so by giving him two month's no-
tice of his will that he should quit. Western Union Teleg.
Co. v. Fain & Parrott, 52 Ga. 19, 22.
Not Applicable to Failure to Pay Rent. — This section is
applicable to the refusal of the tenant to vacate after he
had been given the two-months notice to quit, required by
this section, and not upon the failure to pay rent when due.
When the warrant to dispossess is based upon the failure
to pay rent due, there is no statute that requires any no-
tice from the landlord other than the demand for the pos-
session of the property, prescribed by § 5385. Morris v.
Barrey, 28 Ga. App. 90, 93, 110 S. E- 342.
Applicability to Tenant at Sufferance. — A tenant at suf-
ferance is not entitled to notice to quit under this section,
it being confined to tenants at will. Willis v. Harrell, li?
Ga. 906, 45 S. E. 794.
The word "month" in this statute means calender month.
Salio v. Swift, 25 Ga. App. 96, 102 S. E. 869. See § 5.
§ 3710. (§ 3134.) Emblements.— The tenant at
will is entitled to his emblements, if the crop is
sowed before notice to quit by the landlord, or
the tenancy otherwise suddenly terminated, as
by sale of the estate by the landlord, or by judi-
cial sale, or death of the landlord or tenant.
Cross References. — For full treatment of emblements, see
4 Cum. Dig. 490; 4 Enc. Dig. 61. As to rights of life ten-
ant to emblements, see § 3668. As to rights of tenant for
years, see § 3688.
A tenant at will can not be disposed until he has gathered
his emblements. Chappell v. Boyd, 56 Ga. 583.
The tenant is entitled to his emblements, if any, as pro-
vided by this section. Western Union Tel. Co. v. Fain &
Parrott, 52 Ga. 19, 22.
Rights Where Land Sold Under Execution. — A purchaser
as an execution sale acquires the title of the owner, and
where it is rented to a tenant, though the rental contract
was made subsequent to the judgment, the purchaser ac-
quires only the interests of the owner. If he convert ma-
tured crop to his own use, the tenant may recover the
value in trover. Blitch v. Lee, 115 Ga. 112, 41 S. E. 275;
Garrison v. Parker, 117 Ga. 537, 43 S. E. 849.
Applicable Regardless of How Terminated. — A tenant at
will or his legal representative are entitled to the emble-
ments, whether tenancy is terminated by notice or by death
of tenant. Morgan v. Morgan, 65 Ga. 493.
§ 3711. (§ 3135.) Casualties no abatement of
rent. — The destruction of a tenement by fire, or
the loss of possession by any casualty not caused
by the landlord, or from defect of his title, shall
not abate the rent contracted to be paid.
Cross References. — For treatment of this subject, see 8
Cum. Dig. 36; 8 Enc. Dig. 565. As to landlords liability for
repairs, see §§ 3694, 3699. As to right of insurance com-
pany, see § 2549. As to the delivery of possession at end of
term, see § 3697.
As to powers of directors of banks, see § 2267.
Common Law. — This section is a codification of a com-
mon law principle. Mayer v. Morehead, 106 Ga. 434, 32 S.
E. 349.
Rule. — Under this section of the Code, and under the
former rulings of this Court, if the premises rented are de-
stroyed by fire during the term, the tenant, under an ordi-
nary rent contract, is liable for the payment of rent for the
full period for which he rented. Pope v. Gerrard, 39 Ga.
471.
Reason for Rule. — The rule is not without foundation in
policy. It secures, on the part of the-tenant, that careful-
ness and vigilance which is necess«.ry to the safety of the
owner's property whilst he; is 'out of possession, and whilst
it is under the absolute control of one wno has only a
temporary interest in it. If the destruction by fire would
excuse the tenant, so.'.far^as pecuniary. rinterest is concerned,
he would become careless- to protect if. The owner would be
left to rely upon the tenant's ■" sense of . moral obligation,
which unfortunately is not, in.. all men, so just or so strong
as to constrain thfm, to do. right. White v. Molyneux, 2
Ga. 124, 128. .^O
"The reason on equity is, that in case of the destruction
of the property, th^ loss of the rent must fall somewhere,
and there is no more, equity that the landlord should bear
it than the tenant, when the tenant has expressly agreed
to pay it, and when the landlord must bear the loss of the
property destroyed. Equity considers the calamity mutual.
She will not interfere to relieve against the express con-
tract of Ihe tenant." White v. Molyneux, 2 Ga. 124, 127.
[ 1047 ]
§ 3711
LANDLORD AND TENANT
§ 3712
"The reasons upon which the decisions at law have gone
are, that it is competent for a party, in his contract, to
stipulate against payment in case of fire, or other casualty
or violence; and having failed to do so, he can not take ad-
vantage of his laches. The contract is an executed one;
the tenant is in the position of a purchaser of the premises
for the term; he is let into the possession, and the land-
lord has no right to enter or in any way molest him. And,
as in all other express, unconditional contracts, both par-
ties must abide their solemn act." White v. Molyneux, 2
Ga. 124, 127.
Illustration of Rule. — Where a room in a building was
rented for a drug store for one year, and three notes were
given at six, nine and twelve months for the rent, and the
building was burnt down and little before the end of six
months, the tenant is liable for the payment of the two last
notes as well as the first. Pope v. Gerrard, 39 Ga. 471.
Applicable Unless Landlord Evicts. — "The law is well set-
tled in Georgia, that the tenant of a rented house is liable
for the stipulated rent to the end of his term, although the
house, before the expiration of such term, be destroyed by
fire, unless ' the landlord does some act which in law
amounts to an eviction of the tenant." Fleming & Bowles
v. King, 100 Ga. 449, 454, 28 S. E. 239.
What Amounts to Eviction. — To constitute an eviction
which will operate as a suspension of rent, there must be
either an actual expulsion of the tenant, or some act of a
grave and permanent character done by the landlord with
the intention of depriving the tenant of the enjoyment of
the demised premises. The granting, upon the petition of
the landlord of an order restraining tenant from removing
his goods beyond the State, and the appointment of a re-
ceiver who took possession for several weeks did not
amount to an eviction of the tenant. Such proceedings did
not show an intention on the part of the landlord to de-
prive the tenant of the enjoyment of the rented premises.
Potts-Thompson Liquor Co. v. Capital City, Tobacco Co.,
137 Ga. 648, 74 S. E. 279.
Entering on premises to clean brick is not eviction where
tenant did not object. Nor was building wall around
premises and pulling down remains of building, under order
of city, an eviction. Flemming v. King, 100 Ga. 449, 28 S.
E. 239.
To Avoid Rule Tenant Must Contract. — The principle is
well settled that where the lessee covenants to pay rent he
is bound to pay it, whatever injury may happen to the de-
mised premises; and that if the tenant would guard against
loss by fire and tempest, he must introduce into his lease
an exception to that effect. Lennard v. Boynton, 11 Ga.
Ill, citing White v. Molyneux, 2 Ga. 124. To the same
effect, the principal case is cited in Pope v. Garrard, 39 Ga.
475. See also, Guthman v. Castleberry, 49 Ga. 272; Flem-
ing v. King, 100 Ga. 449, 28 S. E. 239, Rep. 139.
Right to Possession After Destruction. — Where there is
nothing to indicate an intention to limit the possession to
buildings, and city premises are described by street num-
bers, the lessee takes an interest in the yard, garden, sub-
jacent land, and appurtenances, and retains the right to the
possession of such land after the buildings thereon have
been destroyed, being in turn bound to pay rent for the
balance of the term. Snook, etc., Co. v. Steiner & Emery.
117 Ga. 363, 43 S. E. 775.
But there no right to the land passes, except such as is
required to sustain the building, and the lease is only of a
storeroom, the destruction of the building containing the
apartment terminates the tenant's interest in the land, and
the tenant has no right to damages on account of the land-
lord's refusal to permit him to occupy a similar apartment
in a new structure erected on the same land. Gavan v.
Norcross, 117 Ga. 356, 43 S. E. 771.
Not Required to Rebuild.— If, a rented dwelling be un-
roofed^ by a storm, the landlord, upon notice, is bound to re-
pair it under § 3699, or the tenant will have a right of ac-
tion, or may recoup against the rent; but if the storm
completely destroys the dwelling, the landlord is not re-
quired to replace it, nor does the rent abate under this sec-
tion: This may not be consistency, nor the perfection of
human reason, but it seems to be the law of this State.
Mayer & Crine v. Morehead, 106 Ga. 434, 436, 32 S E 349
See §§ 3694, 3699.
Set-Off — Building Erected by Tenant. — Where, in a con-
tract of lease, there if no stipulation relieving the lessee from
payment of rent in the event a building on the rented
premises is destroyed by fire, the lessee can not set off
against the rent the value of a building which he voluntarily
erected on the rented premises to take the place of one de-
stroyed by fire. A transferee of the lease stands, as to
this matter, upon the same footing as the original
lessee. Hicks & Son v. Mozley & Co., 12 Ga. App. 661, 78
S. E. 133.
Continuation of Rent Where Law Prohibits Business. —
Lessee of hotel with barroom can have no reduction of
rent of account of law prohibiting sale of liquors, without
express stipulation. Lawrence v. White, 131 Ga. 840, 63
S. E. 631.
Acts by Stranger Disturbing Tenant. — The implied cove-
nant in a lease contract for the quiet enjoyment of the
premises by the tenant obligates the landlord to protect
the tenant only against the landlord's own acts, and not
against the acts of strangers, under this section, which
disturb the tenant in his quiet enjoyment and possession
of the rented premises. Adair v. Allen, 18 Ga.. App. 636,
89 S. E. 1099, and cases there cited. See also note in 42 L-
R. A. (N. S.) 774. Parker v. Munn Sign & Adv. Co.,
29 Ga. App. 420, 115 S. E- 926.
Operation Postponed by Scaling Ordinance. — The rule of
this section is perfectly sound but it is subject to the
Scaling Ordinance like all other contracts, and during the
period of the war the courts will investigate the facts and
do equity between the parties under the Ordinance. Clark
v. McCroskey, 41 Ga. 140.
§ 3712. Interfering with certain relations. —
When the relation of employer and employee,
or of landlord and tenant of agricultural lands,
or of landowner and cropper has been created by
written contract or by parol contract partly per-
formed, made in the presence of one or more
witnesses, it shall be unlawful for any person dur-
ing the life of said contract, made and entered
into in the manner above prescribed, to employ,
or to rent lands to, or to furnish lands to be
cropped by said employee, tenant, or cropper, or
to disturb in any way said relation, without first
obtaining the written consent of said employer,
landlord, or landowner, as the case may be. Acts
1901, p. 63; 1903, p. 91.
As to the right of action against a person interfering
with the relation of master and apprentice or master and
servant, see §§ 3120, 3128.
Editor's Note. — This and the three following sections first
appeared in the code of 1910, having been codified from the
acts of 1901, p. 63, as amended by the acts of 1903, p. 91.
The constitutionality of the act before codification was
attacked in Pearson v. Bass, 132 Ga. 117, 63 S. E. 798, on
the ground that the act contained matter different from
the title in that the clause "or to disturb in any way the
said relations" was not in the title, but the court held that
only the words quoted were unconstitutional. In the same
case it was held that the act was not unconstitutional as
containing more than one subject matter in that the pen-
alty may be enforced by civil or criminal procedure.
The next constitutional attack came in Johnson v. Huds-
peth, 136 Ga. 771, 72 S. E. 69, where it was held that the
act as codified was not unconstitutional because of the
provision that if the action fails the defendant shall have
judgment for reasonable attorney fees in that it is a de-
nial of complete and impartial protection under the law to
the plaintiff in that he is not given a right to recover at-
torney fees also. Nor was it unconstitutional because it
was violative of the constitutional negation of special
legislation on a subject matter already covered by a gen-
eral law.
But the next constitutional attack, which came in For-
tune v. Braswell, 139 Ga. 609, 77 S. E- 818 (certified from
Court of Appeals), see same case, 12 Ga. App. 702, 78 S. E-|
201, proved fatal. It was attacked as being unconstitutional!
on the ground that it was a denial of due process of law
because depriving "a citizen of his right to labor and to
contract with reference thereto without incurring the
penalties written in the statute and therefore deprives him
of his property." The court in sustaining this contention,
said "a tenant may have rented land insufficient to em-
ploy his own labor and that of his family, and yet he is not
permitted to supplement his farm by renting additional
land from another. No other landlord can rent such a I
tenant more land without violating the provisions of the I
statute. The statute makes the violation of its provisions
a crime, or a tort remedial in arbitrary damages at the!
option of the aggrieved party. A law which gives to anl
interested party the absolute right to declare an act to be I
a public offense punishable by imprisonment, or a private
wrong redressable in arbitrary damages, is certainly lack -J
ing in due process. Under out system of government, thej
legislature may denounce an act to be a crime, but it can-j
not delegate to a private individual the power to classify
1048 ]
§ 3713
ESTATES ON CONDITION
§ 3717
such an act to be a public or private wrong at his option.
* * * (By section 3714) The property rights of the second
employer are not taken into account, however innocent he
may have been in entering into the contract with the
other's tenant. * * * It can not be said that a law which
may impose a property loss upon an innocent person who
complies with its terms gives to such person due process
of law. * * * We think the statute is void as being op-
posed to the due process clause of the Constitution."
In Richter v. Cathy, 13 Ga. App. 369, 79 S. F- 179, the
court refused to consider the constitutionality of the stat-
ute, notwithstanding that it had been declared uncon-
stitutional in Fortune v. Braswell, because the point was
not raised in the court below. See also Bank v. Jones, 12
Ga. App. 158, 76 S. B. 1054.
For the cases decided under these sections, see: Orr v.
Hardin, 4 Ga. App. 382, 61 S. E- 518; Rusher v. State, 6
Ga. App. 786, 65 S. E. 815; Rawlings v. Sheppard, 10 Ga.
App. 350, 73 S. F- 523; Johnson v. Hudspeth, 134 Ga. 25,
67 S. F. 423; Bearden v. Holland, 134 Ga. 70, 67 S. E. 423;
Stewart v. Hill, 134 Ga. 596, 68 S. F. 328. * * *
§ 3713. Penalty. — Any person violating the
provisions of the foregoing section shall, at the
option of the party alleged to have been injured,
be prosecuted and upon conviction punished as
for a misdemeanor; or he shall be liable in dam-
ages to said alleged injured party, as follows:
(1) In case of employer and employee, the dam-
ages shall not be less than double the amount of
wages or salary for the entire period of said con-
tract. (2) In case of landlord and tenant, or of
landowner and cropper, the damages shall not be
less than double the annual rental value of the
lands rented or cropped, said value to be fixed
at 1,000 pounds of middling lint-cotton to the
plough.
This section has been held to be unconstitutional, see the
note under .§ 3712. * * * Ed. Note.
§ 3714. Defenses. — In addition to other de-
fenses, the following defenses in both civil and
criminal cases arising under the provisions of
the two preceding sections shall be good and suf-
ficient, when proved in every item to the satis-
faction of the jury, to wit:
1. For the defendant to show that prior to
the alleged violation of said sections said em-
ployee, tenant, or cropper, as the case may be,
had for good reason and just cause abandoned
his contract and terminated the relation created
thereby.
2. For the defendant to show as a complete
defense all of the following facts, to wit: That,
prior to employing or otherwise contracting with
said employee, tenant or cropper he received
from said employee, tenant, or cropper an affi-
davit to the effect that said employee, tenant, or
cropper, was not at the time under a prior ex-
isting contract, which affidavit defendant shall
show to the court, and that immediately on proof
that said employee, tenant, or cropper was un-
der contract defendant discharged him, and re-
fused to permit and did not permit him to remain
on his (defendant's) premises. Whenever in a
suit for the recovery of damages the defendant
shall urge his defense successfully, he shall have
judgment against the plaintiff for all costs and
reasonable attorney's fees, and in case of a like
result in the prosecution of a criminal case the
defendant shall have a like judgment against
the prosecutor.
This section has been held to be unconstitutional, see
the note under § 3712. * * * Ed. Note.
§ 3715. When the foregoing sections do not
[ 1049 ]
apply. — The provisions of the three preceding
sections shall not apply where the employment
given is of such duration and of such nature as
to make it certain that it could not result in in-
jury to the plaintiff or prosecutor.
While this section has not been held unconstitutional, it
is probably nugatory, because the three preceding sections
to which it applies have been so held. See the note undei §
3712. * * * Ed. Note.
CHAPTER 6.
Of Estates on Condition.
§ 3716. (§ 3136.) Definition. — An estate may be
granted upon a condition, either express or im-
plied, upon performance or breach of which the
estate shall either commence, be enlarged, or be
defeated.
Cross References.— For a full treatment of estates on con-
dition, see 5 Cum. Dig. 441 et seq.; 3 Enc. Dig. 193 et seq.;
5 Enc. Dig. 205. For treatment of conditions in general,
see 3 Cum. Dig. 736 et seq.; 3 Enc. Dig. 189 et seq. For
absolute and conditional contracts, see §§ 4223-4225. As
to conditional sales of personalty, see §§ 3318, 3319.
Words Necessary to Create.— "No precise form of words
is necessary to create conditions in wills. Any expression
disclosing the intention will be sufficient to create a con-
dition, but such intention must be definitely expressed."
Hilton v. Sherman, 155 Ga. 624, 628, 118 S. E. 356.
Construed to Enforce Intent.— The cardinal rule of con-
struction, both at common law and under out code, is, that
instruments containing conditions, limitation, and restric-
tions are to be construed in each case in such a way as to
carry into effect the intent of the parties as gathered from
the instrument as a whole. Wadley Dumber Co. v. Lott,
130 Ga. 135, 137, 60 S. E. 836.
Care for Life or Condition.— "A grantor may convey land
to another on condition that the grantee shall care for him
for life, and provide therein that a failure to perform the
condition shall have the effect of defeating the estate
granted." Jones v. Williams, 132 Ga. 782, 785, 64 S. F-
1081. See § 3717.
Proper Words Must Be Used.— "A deed executed upon a
consideration to support the grantor, without apt or proper
words to create a condition, a breach of which would
render the estate defeasible at the grantor's election,
passes title to the grantee, and the failure of the grantee
to maintain and support the grantor may give the latter
a right of action in equity to rescind the contract if the
grantee is insolvent. McCradle v. Kenedy, 92 Ga. 198 (17
S. E. 1001, 44 Am. St. R. 85)." Jones v. Williams, 132
Ga. 782, 785, 64 S. E. 1081.
Covenant or Condition.— Where to a deed the words, "On
the express understanding and agreement on the part of
said A. H. S. (the grantee) that the lot of land so^ con-
veyed is never to be sold to or occupied by negroes," are
attached, they are words of covenant and not of condition.
Anthony v. Stephens, 46 Ga. 241.
Mortgage or Condition Subsequent.— A deed which was
conditioned upon the payment of certain judgments by a
time certain and to become absolute oil default thereof is
a deed upon a condition subsequent and not a mortgage.
Burnside v. Terry, 45 Ga. 621.
Applied in Johnson v. Hobbs, 149 Ga. 587, 101 S. E. 583.
§ 3717. (§ 3137.) Precedent and subsequent. —
Conditions may be either precedent or subse-
quent. The former require performance before
the estate vests; the latter may cause a forfeiture
of a vested estate. The law inclines to construe
conditions to be subsequent rather than prece-
dent, and to be remediable by damages rather
than by forfeiture.
Cross References.— For a full treatment of estates on
condition, see 5 Cum. Dig. 441 et seq.; 3 Enc. Dig. 193 et
seq.; 5 Enc. Dig. 205. For a treatment of conditions in
general, see 3 Cum. Dig. 736 et seq.; 3 Enc. Dig. 189 et
seq. As to conditional sales of personal property, see §§
3318, 3319. For conditional contracts, see §§ 4223-4225. As
to rule of construction, see § 4568.
When Construed as Condition. — A deed will not be con-
strued as a grant on condition subsequent, unless the
§ 3717
ESTATES ON CONDITION
§ 3717
language used by express terms creates an estate on con-
dition, or unless the intent of the grantor to create a con-
ditional estate is manifest from a reading of the entire in-
strument. Thompson v. Hart, 133 Ga. 540, 66 S. E- 270.
Same — Necessity of Technical Words. — "Technical words
are not required to create a condition subsequent. Jones
v. Williams, 132 Ga. 783, 785, 64 S. E- 1081. The au-
thorities generally agree that the construction must de-
pend upon the intention of the parties as gathered from the
whole instrument; and under § 4266 technical rules of
construction are to be disregarded when obedience to such
rules would defeat the intention of the parties." Mayor
v. Brenau College, 150 Ga. 156, 159, 103 S. E. 164.
Same — Illustration. — "Where an owner of land conveys it
to a city, and states in the deed that it is to be used for a
specified purpose, he may have such an interest as to
prevent its sale or diversion from that purpose to others,
or perhaps he may have an action of covenant. But such
language alone does not create a condition subsequent, on
breach of which a forfeiture results and the original owner
may recover the land." Atlanta v. Jones, 135 Ga. 376, 379,
69 S. E. 571. See Wadley Lumber Co. v. Lott, 130 Ga.
135, 60 S. E- 836.
An instrument conveying slaves, importing an absolute
gift on its face, and duly recorded, with a condition that
if the grantee should die before the grantor, the property
shall revert conveys an absolute property in the slaves
upon a condition subsequent. Spalding v. Grigg, 4 Ga. 75.
Assumption of Indebtedness as Creating. — A conveyance
upon condition that grantee assume certain indebtedness
and if he fail, to revert, creates a condition subsequent.
Mayor v. Brenau College, 150 Ga. 156, 103 S. E. 164.
Implied from Whole Instrument. — This court has held
(Thompson v. Hart, 133 Ga. 540, 66 S. E- 270), that "A
deed will not be construed as a grant on condition sub-
sequent, unless the language used by express terms cre-
ates an estate on condition, or unless the intent of the
grantor to create a conditional estate is manifest from a
reading of the entire instrument." To the same effect,
Self v. Billings, 139 Ga. 400, 77 S. E- 562; Johnson v.
Hobbs, 149 Ga. 587, 101 S. E. 583.
Condition Not Favored — Strictly Construed — Construed as
Covenant. — See 3 Cum. Dig. 738.
Conditions subsequent, says Chancellor Kent, are to be
construed strictly, because they tend to destroy estates;
and the rigorous exaction of them is a species of summum
jus, and in many cases, hardy reconcilable, with conscience;
4 Kent's Com., 129. If it be doubtful, says the same
learned author, whether a clause in a deed be a covenant
or a condition, the Courts will incline against the latter
construction; for a covenant is far preferable to the ten-
ant: 4 Kent's Co., 132. Thornton v. Trammell, 39 Ga. 202,
207.
Reverter as Estate.— If a condition subsequent, it is con-
ceded that the mere possibility of reverter which remains
is not an estate in land and is not subject to taxation. See
Moss v. Chappell, 126 Ga. 196, 54 S. E. 968, 11 I,. R. A.
(N. S.) 398; Wadley Lumber Co. v. Lott, 130 Ga. 135, 133,
60 S. E. 836; 1 Warvelle on Vendors (2d ed.), 521. Mayor
v. Brenau College, 150 Ga. 156, 159, 103 S. E. 164.
Estate Conveyed for Certain Purpose. — See 3 Cum. Dig.
738.
The instrument showed that the contract was for a sale
of the machinery and an interest in the land for the pur-
pose of maintaining and operating a gin at the designated
location, upon condition subsequent that the location should
revert to the owner of the balance of the tract when
J should cease to use it for such purpose. Section 3716;
Thornton v. Trammell, 39 Ga. 202; Snook, etc., Co. v.
Steiner, 117 Ga. 363, 43 S. E. 775,; Jones v. Williams, 132
Ga. 782, 64 S. E. 1081; Thompson v. Hart, 133 Ga. 540, 66
S. E- 270; Lawson v. Ga. etc., Ry. Co., 142 Ga. 14, 82 S.'
E. 233; Hilton v. Central Ry. Co., 146 Ga. 812, 82 S. E- 233;
21 C. J. 929, § 39; Davis v. Jones, 153 Ga. 639, 641, 112 S.
E. 891.
"In the case of Moss v. Chappell, 126 Ga. 196, 54 S. E.
968, 11 L. R. A. (N. S.) 398, it appears that the deed to the
railroad company, conveying the land in controversy, con-
tained this provision: 'provided that should said strips of
land cease to be used for railroad purposes, it shall revert
to the' grantors. And it was held that the words created
a condition subsequent, a breach of which would work a
forfeiture. The deed under consideration in the present
case contains no such stipulation." Harrold v. Seaboard
Air-Line R., 131 Ga. 360, 362, 62 S. E. 326.
Same Where Put to Minor Use — Generally Used for
Purpose. — Where land is conveyed to be used for a certain
purpose, with a clause of forfeiture if it cease to be used
for the object specified, the whole estate does not cease if
the land be permitted to be put to a minor use, provided
that in the main it is used for the purpose for which it
was conveyed. Lawson v. Georgia etc. Ry. Co., 142 Ga.
14, 82 S. E. 233; Hilton v. Central R. Co., 146 Ga. 812, 814,
92 S. E. 642.
"The land condemned by the assessors duly appointed for
that purpose to be used in extending Alabama street from
its present terminus westward to Rhodes street." This
clause in the deed did not constitute a condition subse-
quent, authorizing the recovery of the land upon its
breach. The law does not incline to construe conditions
or covenants so as to work a forfeiture. The language of
the deed constituted a covenant, rather than a condition
subsequent. Atlanta v. Jones, 135 Ga. 376, 379, 69 S. E-
571.
Courts of equity have struggled hard to construe condi-
tions subsequent into covenants, and send the party ag-
grieved to law to get his damages for the non- performance.
Taylor v. Sutton, 15 Ga. 103.
Compensation in Lien of Condition Subsequent. — For-
merly, courts of chancery decreed pecuniary compensation,
in lieu of conditions subsequent, when broken; at a later
day, they granted relief only against the condition, when-
ever the forfeiture was inevitable, and pecuniary com-
pensation could be made. Taylor v. Sutton, 15 Ga. 103.
Distinction between Condition Subsequent and a Limi-
tation upon Condition. — The difference between a limitation
and a condition subsequent is that in the latter the grantor
must re-enter, or make a claim in case re-entry is im-
possible or impracticable. In case of a condition at com-
mon law, the grantor or his heirs alone can defeat the es-
tate by entry for condition broken. In a conditional limi-
tation, the estate determines, ipso facto, upon the hap-
pening of the event, and goes over at once to the grantor
by reverter, or to the person to whom it is limited upon
the happening of such contingency. Atlanta Consol. St.
R. Co. v. Jackson, 108 Ga. 634, 636, 34 S. E. 184.
Void Conditions.— See 3 Cum. Dig. 740; 3 Enc. Dig. 193.
Conditions subsequent, whether to pay a certain sum ot
money or to do any other thing, are good, unless impos-
sible to be performed, illegal" or repugnant to the deed; in
which case, the conditions, themselves, are void and the
grantee takes, at once, an absolute estate. Taylor v.
Sutton, 15 Ga. 103.
Necessity of Entry to Defeat Estate.— See 3 Enc. Dig.
194. See also, § 3721.
The breach of a condition subsequent in a deed does
not, of itself alone, defeat the grantee's estate, nor revest
title in the grantor, until after entry, or recovery in an
action brought by him or his heirs; and the same rule is
applicable in case of the lease of realty for a term of
years. Peacock, etc., Co. v. Brooks Lumber Co., 96 Ga.
542, 23 S. E. 835.
When Entry to Take Place.— See 3 Enc. Dig. 195.
Conveyance of Conditional Estate.— The persons who have
an estate of free -hold, subject to a condition, are so seized
that they may convey or devise the same, or transmit the
inheritance by descent, to their heirs; though the estate
will continue defeasibly until the condition be performed,
or destroyed, or released, or barred, by the statute of
limitations or by estoppel. Taylor v. Sutton, 15 Ga. 103.
Fee in Grantee until Breach.— "Where a conveyance of
land is made upon a condition subsequent, the fee remains
in the grantee until breach of condition and a re-entry by
the grantor." Wadley Lumber Co. v. Lott, 130 Ga. 135,
138, 60 S. E. 836.
Estate for Years Terminated by Condition Subsequent. —
"An estate for years may be made to terminate upon a
contingency or a condition subsequent." Snook, etc., Co.
v. Steiner, 117 Ga. 363, 374, 43 S. E. 775.
Waiver of Condition.— See 3 Cum. Dig. 740, 737.
Forfeiture — Where Expressly Provided. — "The law in-
clines to construe conditions subsequent so as to render
their breach remediable in damages rather than by for-
feiture; but where the plain words of the grant declare
that a breach of the condition shall defeat the estate
granted, there is no room for construction." Jones v.
Williams, 132 Ga. 782, 785, 64 S. E- 1081.
Same — Should Be Expressly Provided. — If parties desire
that a forfeiture shall result, or that an estate shall termi-
nate because of the breach of a covenant or failure to use
the property for the purpose mentioned in the deed, they
should so state. Atlanta v. Jones, 135 Ga. 376, 379, 69 S.
E. 571.
Same — Where Compensation Can Be Made. — " 'Forfei-
tures are abhorred in equity and are favored in law,' and
provisions for forfeitures are regarded with disfavor and
construed with strictness, when applied to contracts and
the forfeiture relates to a matter admitting of compensa-
tion or restoration. Where adequate compensation can be
made, the law in many cases and equity in all cases dis-
1050 ]
§ 3717
ESTATES ON CONDITION
§ 3718
charges the forfeiture upon such compensation being made.
The law inclines to remedy breach of condition by dam-
ages rather than by forfeiture." Hays v. Jordan, 85 Ga.
741, 749, 11 S. E- 833.
Same — Waiver or Release. — "As was said in Moss v.
Chappell, 126 Ga. 196, 54 S. E- 968, 'forfeitures resulting
from the breach of a condition may be expressly released,
or may be the subject of a waiver, and a waiver may re-
sult from circumstances as well as express language to
that effect. All this is well- settled; and where the release
or waiver extends to the whole forfeiture, of course all
benefit to be derived from the forfeiture is gone.' " Jones
v. Williams, 132 Ga. 782, 785, 64 S. E. 1081; Wilkes v.
Groover, 138 Ga. 407, 75 S. E. 3S3.
Same — Policy to Avoid. — See 3 Cum. Dig. 738.
Forfeitures are not favored by this section. Goss v.
Finger, 28 Ga. App. 410, 111 S. E. 212.
Same — Same — Otherwise Where Just. — It is true "the
law inclines to construe conditions to be subsequent rather
than precedent, and to be remediable by damages rather
than by forfeiture." But where the parties expressly
stipulate for forfeiture for breach of covenant, and where
precise compensation can not be made for such breach, the
forfeiture will be enforced. Where the forfeiture works
equity and protects the landlord against the laches of the
lessee, the forfeiture will be enforced where the lease is of
no value to the landlord until developed. Munroe v. Arm-
strong, 96 Pa. 307. While equity generally abhors a for-
feiture, it does not do so when it is equitable and just, and
when the enforcement of the forfeiture is the only means
hi protecting the landowner against the laches of his lessee,
and where the lease is of no value to the landowner until
developed. Duncan v. Campbell, 154 Ga. 824, 827, 115 S.
E- 651.
Same — Same — Same — Mining Leases. — In leases of lands
for mining purposes, where the rent reserved is a royalty,
the courts do not hesitate, but look with favor upon pro-
visions for forfeiture for non-exploitation. Such a cove-
nant is a condition the breach of which works a forfeiture
.inder this section. Duncan v. Campbell, 154 Ga. 824, 828,
US S. F. 651.
Same — Must Be Made Clear. — "Forfeitures are abhorred
n equity and are never favored in law," and a contract
will not be construed so as to work a forfeiture, unless the
:erms of the contract plainly require such a construction.
It is not at all likely that the parties to this contract in-
ended that the land conveyed — which according to the evi-
ience was worth several times the amount of the debt —
should vest absolutely in the creditor upon the failure to
say the debt on the day it fell due; and the terms of the
:ontract do not make it clear that they so intended. Taylor
V, Baldwin, 27 Ga. 441; McDaniel v. Gray, 69 Ga. 433.
Zhapman v. Ayer, 95 Ga. 581, 583, 23 S. F. 131.
Same— Stranger Taking Advantage of.— See 3 Enc. Dig.
.94.
Condition Precedent — Selection of Home. — Where a tes-
ator directs that his executors shall furnish to his wife a
lome to be selected by her and to be her property, the cost
lot to exceed $5000, to be used as a home for herself and
lis minor children and any other of his children who may
lesire to reside there, such gift is absolute and uncondi-
ional; and failure of the wife to select such home during
ler life will not defeat said legacy, the right of selection
)f the home not being a condition precedent, the nonper-
ormance of which will defeat the gift. Hilton v. Sherman,
55 Ga. 624, 118 S. E. 356.
Same — Payment Before Entry.— A stipulation in an iri-
trument conveying timber, providing for part payment
lown and remainder upon entering to cut, does not make
>ayment of the balance a condition precedent to the en-
ering to cut. McRae v. Stillwell, 111 Ga. 65, 36 S. E- 604.
Same — Birth of Children.— Here the birth of children was
lot a condition precedent to the right of the husband to
ake under the will, for the gift over to the husband was
lot conditional on the birth of children, but was subject to
i limitation by which it might never be enjoyed if the
vife had a child who reached maturity. Jossey v. Brown,
19 Ga. 758. 47 S. E- 350.
Same — Vesting of Prior Estate. — Generally where a prior
:state is made to depend upon any prescribed event, and
he second estate is to arise upon the determination of
hat- event, the vesting of the prior
aken as a condition precedent, but
iecond estate takes effect. Jossev \
■7 S. E. 350.
Same Construed as Subsequent.- See 3 Cum. Dig. 739.
Although the words "condition precedent" may be used
n a will in connection with a bequest of income, yet
vhere the duty imposed was a continuing one of furnishing
he testator's child with a home in a benevolent institution
estate is not to be
upon its failure the
Brown,. 119 Ga. 758,
and caring for her "as comfortably as the facts and cir-
cumstances of the case will warrant," where the corpus
was given to the institution in remainder, after the death
of the child, provided a Christian burial should be given
to her, and where from the entire will it is apparent that
the estate was not intended to be left to the legatee upon
a condition precedent, properly so-called, the title will be
construed to have vested, and the condition for support,
made in connection with the bequest of the income, will
be held to be in the nature of a condition subsequent.
Winn v. Tabernacle Infirmary, 135 Ga. 380, 69 S. E. 557.
§ 3718. (§ 3138.) Repugnant condition. — A con-
dition repugnant to the estate granted is void; so
are conditions to do impossible or illegal acts,
or which in themselves are contrary to the policy
of the law.
Cross References. — As to a provision in restraint of mar-
riage being void, see § 2929. As to conditions in devises
and legacies, see § 3911. As to void condition in gifts, see
§ 4148. As to void conditions in contracts, see § 4225.
Interests Retained to Grantor. — If any of the provisions
granting broad powers to the trustee should be construed
as retaining an interest in the grantor, such provisions
would be void as repugnant to the grant. Lewman v.
Owens, 132 Ga. 484, 64 S. E. 544; 18 C. J. 256, § 200; Gal-
land v. Reuben, 155 Ga. 293, 296, 116 S. E. 302.
Trust Repugnant to Grant. — Spendthrift trusts, are al-
lowed by statute, but only in certain defined cases § 3729.
(There is no hint of any spendthrift trust here and the
provision contained in the eighth item of the will is in-
consistent with such an idea.) Conditions repugnant to
an estate granted are void under this section. Wright v.
Hill, 140 Ga. 554, 565, 79 S. E. 546.
Restriction of Alienation Repugnant to Fee. — This sec-
tion declares that a condition repugnant to the estate
granted is void. It requires no argument to support the
proposition that a restriction on the power of alienation
is repugnant to a grant in fee. Freeman v. Phillips, 113
Ga. 589, 591, 38 S. E- 943.
"In Freeman v. Phillips, 113 Ga. 589, 38 S. E. 943, it was
held: 'A devise giving a fee in land to remaindermen on
the termination of a life-estate, with the restrictions that
the remaindermen should "never mortgage, rent, or sell
said parcel of land," vests in such remaindermen, at the
death of the life-tenant, a fee in such land free from the
restrictions sought to be imposed. The restraint upon
alienation, being repugnant to the nature of the estate, is
void.' We are not dealing now .with base fees, or re-
versions, or limitations over, or with the question whether,
construing a particular conveyance as a whole, the estate
conveyed is in fact a fee -simple, or a less estate, but with
conveyance in fee simple in which it is sought to restrict
the right of alienation by the grantee." Cowart v. Single-
tary, 140 Ga. 435, 442, 79 S. E- 196.
"The power of alienation is necessarily incident to every
estate in fee, and a condition in a devise of lands in fee
simple, altogether preventing alienation, is repugnant to
the estate and void." Crumpler v. Barfield, etc., Co., 114
Ga. 570, 571, 40 S. E. 808.
Same — As Applied to Life Estate. — The devise of the life
interest to the wife was not such a grant of an estate to
her as to make the subsequent provision against its trans-
fer void on account of repugnancy. Trammell v. Johnston,
54 Ga. 341.
Limitation Over Not Inconsistent with Determinable Fee.
— -The provision, that should the wife's sister die childless
before the wife, for the benefit of the wife is not inconsist-
ent with the grantor to her of a fee determinable upon
condition. If the devisee in remainder under such condi-
tion should die without child or children, the wife would
have the added right of disposition. Tyler v. Theiling, 124
Ga. 204, 208, 52 S. E. 606.
Restriction upon Incumbrance. — Where a husband settled
property on his wife free from all his liabilities except such
incumbrances as the two together shall request the trustee
to make, the exception is not repugnant to the grant, but
is merely a qualification thereof. Affirmed in 9 Sup. Ct.
Rep. 61. Aetna Ins. Co. v. Brodinax, 48 Fed. 892.
Habendum Repugnant to Premises. — The first part of a
deed clearly conveys the title and the present estate in
the land to the grantee; and the attempt by the grantor,
in a subsequent part of the deed, to retain the title in him-
self is inconsistent with the first part of the deed, wherein
he had already conveyed the title out of himself; and un-
der the code, the former must prefail. If the habendum
be repugnant to the premises, it is void, for "A condition
reougnant to the estate granted is void." White v. Hop-
kins, 80 Ga. 154, 158, 4 S. E. 863.
[ 1051 ]
§ 3719
TENANCY IN COMMON
§ 3722
§ 3719. (§ 3139.) Disability.— No legal disa-
bility, except being non compos mentis, will
excuse a person from failing to comply with a
condition annexed to his or her estate; no notice
of such condition .need be given by the person
claiming under the limitation over.
If an estate at all, the interest in property by reason of
rights as a judgment creditor, is an estate with a condi-
tion annexed. And that condition requires, in case of a
sale of land by the defendant to a bona fide purchaser for
a valuable consideration, who is in possession of the land,
that the plaintiff proceed by a levy within four years from
the time when the possession commences, or the estate is
divested, and the bona fide purchaser holds the land dis-
charged from the lien of the judgment. In this view of
the case, no legal disability whatever, except being non
compos mentis, will relieve the plaintiff from failing to
comply with the condition, under this section. Chapman v.
Akin, 39 Ga. 348, 352.
§ 3720 (§ 3140.) Dependent and independent
covenants. — The dependence or independence of
covenants or conditions must be collected from
the intention of the parties, viewing the entire
instrument; in dependent conditions the failure
of the person first required to act is an excuse to
the other party for failing to comply; if the con-
ditions be independent, no such excuse avails.
The law inclines to construe conditions to be
independent.
Cross References. — As to condition ' precedent and subse-
quent in contracts, see § 4224. Failure to comply with
condition as defense in action on contract, see § 4301. As
to rule of construction as to conditions, see § 4568.
Distinction between Dependent and Independent Cove-
nants— Classification of Each. — Water Lot Co. v. Leonard,
30 Ga. 560-575.
Independent Covenants — Timber Contracts. — The cove-
nants in a contract whereby A agreed to convey to B all
the timber on certain lands for turpentine purposes, and
whereby B agreed to convey to A all the timber on certain
other lands for sawmill purposes, were properly construed
to be independent covenants. Howell v. James Lumber Co.,
102 Ga. 595, 27 S. E\ 699.
Same — Repairs and Payment of Rent. — A landlord leased
certain stores to tenants at a stipulated price, payable
monthly. The landlord agreed to keep the building in good
repair, and to pay the tenants any damage they might sus-
tain by his neglect to do so. It was held, that the cove-
nant to pay rent and that to repair were independent cove-»
nants, and therefore a failure to repair did not work a for-
feiture of the rent, but gave a right of action, or of re-
coupment to the tenant. Lewis & Co. v. Chisholm, 68 Ga.
40.
Dependant Covenants — Rules for Determining. — Promises
mutual to the extent that each affords the sole considera-
tion to the other will not be construed as independent, but
will, in the absence of clear indications to the contrary, be
taken as dependent one upon the other; and while, ordi-
narily, dependent covenants are such as mutually afford to
the other the whole consideration, still the stipulations
and the circumstances of the contract may be such as to
render covenants mutual and dependent even though one
of them affords to the other only a part of its considera-
tion. In such a case the question as to whether covenants
shall be taken as mutually dependant is to be determined
by reference to the rational meaning and intent of the
parties as disclosed by the entire instrument, read in the
light of the surrounding circumstances and the purposes
for which the contract as a whole was made, see also §§
4223, 4303; Schmidt v. Mitchell, 117 Ga. 6, 43 S. E. 371; 7
R. C. L. 1090; Brenard Mfg. Co. v. Kingston Supply Co.,
22 Ga. App. 280, 95 S. E. 1028.
§ 3721. (§ 3141.) Effect of breach of condition.
— Upon breach of condition subsequent, working
a forfeiture, the person to whom the estate is
limited may enter immediately.
Necessity of Entry to Revest Estate.— See 3 Enc. Dig.
195. See also, note to § 3717. The grantor has a right to
re-enter upon condition being broken. Wilkes v. Groover,
138 Ga. 407, 75 S. E. 353.
Same — Persons Who May Make — Landlord or Heirs. —
See 3 Enc. Dig. 194.
Same — Same — Stranger Can Not Make. — See 3 Enc. Dig.
194. See also, the case of Richmond etc. v. Castellaw, 134
Ga. 472, 67 S. E. 1126.
Interest of Grantee between Breach and Entry. — The
grantor in a deed containing a condition subsequent upon
its breach may enter peaceably if he can do so, or he may
maintain his action for the recovery of the premises in the
event the grantee refuse to surrender possession. Such an
action is the equivalent of an entry. Until there has been
an entry the grantee or those holding under him are en-
titled to the possession and .are to be treated as the owners.
But they are subject to be evicted by a judgment rendered
in a suit by the grantor brought for the purpose of en-
forcing the forfeiture. Peacock, etc., Co. v. Brooks Lum-
ber Co., 96 Ga. 542", 23 S. E. 835; Georgia R. Co. v. Ma-
con, 86 Ga. 586, 13 S. E- 215; Moss v. Chappell, 126 Ga. 196,
208, 54 S. E- 968; Wadley Lumber Co. v. Lott, 130 Ga. 135,
60 S. E. 836.
Grantor Can Not Re- Enter until Condition Broken. —
See 3 Enc. Dig. 195.
What Amounts to Entry. — The grantor in a deed con-
taining a condition subsequent upon its breach may enter
peaceably if he can do so, or he may maintain his action
for the recovery of the premises in the event the grantee
refuse to surrender possession. Such an action is the
equivalent of an entry. Moss v. Chappell, 126 Ga. 196, 208,
54 S. E. 968.
Prerequisites to Entry. — The grantor, in order to re-enter
as upon breach of the condition, must, as a condition to
such re-entry perform his part of his contract. Wadley
Lumber Co, v. Lott, 130 Ga. 135, 60 S. E. §36.
Grantor May Waive Re-Entry. — Wilkes v. Groover, 138
Ga. 407, 75 S. E. 353. See note to § 3717.
CHAPTER 7.
Of Tenancy in Common.
§ 3722. (§ 3142.) Joint tenancies abolished. —
Joint tenancy does not exist in this State, and
all such estates, under the English law, will be
held to' be tenancies in common under this Code.
Act 1828, Cobb, 545; Acts 1853-4, p. 70.
Abolished by Constitution of 1777. — The common-law
doctrine of survivorship among joint tenants was abolished
by the constitution of 1777. Lowe v. Brooks, 23 Ga. 325;
Carswell v. Schley, 56 Ga. 101, 108. See also. Bryan V.
Averett, 21 Ga. 401, 402; Harrison v. Harrison, 105 Ga.
520, 31 S. E. 455; Equitable Loan, etc. Co. v. Waring, 117
Ga. 599, 676. 44 S. E- 2.
Purpose of Act of 1828. — When the Legislature in
1828 interfered with the doctrine of the common law as to
survivorship, the language used by it shows that it did
so, not as believing the doctrine to be in force, but out of
abundant caution lest it might "be in force. The preamble
of the Act of 1828 begins — "Whereas it is doubtful whether
the right of survivorship," etc., "does not still exist."'
Lowe v. Brooks, 23 Ga. 325, 331.
Purpose of Act of 1853-54.— The Act of 1828 confined it-
self, to estates in "lands." In" 1854, the Legislature ex-
tended the Act "to personal estate held in joint tenancy."
Lowe v. Brooks, 23 Ga. 325, 327.
Application of Section. — "By the Act of 1828, the jus
acrescendi or law of survivorship in joint tenancies, is
abolished in this State. Cobb 545. Upon the death of,
therefore, his moiety of the land belonged to his legatees
or distributees." Bryan v. Avereft, 21 Ga. 401, 402.
Stipulation of Survivorship in Contract. — While the doc-
trine of survivorship as applied to joint tenancies has been
distinctly abolished by this section and does not exist in
this state, there is no law* of this state that we are* aware
of which prevents parties to a contract, or a testator in his
will, from expressly providing that an interest in prop-
erty shall be dependent upon survivorship. Of course air
presumptions are against such an intention; but where the
contract or will provides, either in express terms or by
necessary implication, that the doctrine of survivorship
shall be recognized, we know of no reason why a provi-
sion in the contract or will dependent upon such doctrine
may not become operative under the laws of this state.
See Riordon v. Holiday, 8 Ga. 79; Benton v. Patterson, 8
Ga. 146; Dunn v. Bryan, 38 Ga. 154; Hooper v. Howell, 50
Ga. 165, s. c. 52 Ga. 316; Parrott v. Edmondson, 64 Ga.
334; Olmstead v. Dunn, 72 Ga. 850; Harrison v. Harrison,
105 Ga. 517, 521, 31 S. E. 455; Equitable Loan, etc. Co. v.
Waring, 117 Ga. 599, 676, 44 S. E. 2.
[ 1052 ]
§ 3723
TENANCY IN COMMON
§ 3724
§ 3723. (§ 3143.) Definition of tenancy in com-
mon.— Wherever two or more persons, from any
cause, are entitled to the possession, simultan-
eously, of any property in this State, a tenancy
in common is created. Tenants in common may
have unequal shares; they will be held to be
equal unless the contrary appears. The fact of
inequality does not give the person holding the
greater interest any privileges, as to possession,
superior to the person owing a lesser interest, so
long as the tenancy continues.
As to definition and creation of tenancy in common, see
7 Cum. Dig. 704; 7 Enc. Dig. 809-813.
Other Definitions. — Deal v. State, 14 Ga. App. 121, 130,
80 S. E. 537.
Rule Stated. — A tenancy in common is created wherever
two or more • persons, from any cause, are entitled to the
possession simultaneously of any property in this State.
Although it is true that tenants in common may have un-
equal shares of the property, yet each one must have a
share thereof. See also, on this subject, 38 Cyc. 3. Ander-
son v. Lucky, 18 Ga. App. 479, 482, 89 S. E. 631.
Equal Shares Unless Contrary Appears. — 'Baker v. Shep-
perd, 37 Ga. 15; Shiels v. Stark, 14 Ga. 429.
Applicability to Personalty. — "While the technical ex
pression, 'tenants in common,' applies to owners of realty,
still where several own personalty in common, the char-
acter of the ownership is the same; and while there is
unity of possession they hold under distinct and several
titles." Deal .v. State, 14 Ga. App. 121, 130, 80 S. E. 537.
Devisees Take as Tenants in Common — Mother and Chil-
dren.— A will giving property to testator's daughter and
to her children to the exclusion of all other persons what-
ever vested title in her and such children as were living as
tenants in common at the death of the testator. White -
field v. Means, 140 Ga. 430, 78 S. E- 1067.
'The deed in this case conveyed the property to the wife
and her children as tenants in common for her life with
remainder to children. Hammock v. Martin, 147 Ga. 829,
95 S. E. 209.
Same — Such Children as Are in Life. — Where a deed con-
veyed an immediate estate, with, present enjoyment, to a
woman and her children, the title vested in the woman and
such children' as she had in life, as tenants in common, and
children thereafter born to her took no interest under such
deed. Plant v. Plant, 122 Ga. 763, 50 S. E- 961, and cita-
tions. Powell v. James, 141 Ga. 793, 82 S. E. 232.
Bank Check. — A tenancy in common may be created in a
bank check. English v. Poole, 31 Ga. App. 581, 582, 121 S.
E. 589.
Raising Stock on Halves Creates. — Where a landlord
furnishes to a, cropper live stock, the increase of which is
to be raised by the latter on shares and to be divided
equally between the parties, their relation with reference
thereto is that of owners or tenants in common, and not
that of landlord and cropper coming within the terms of
this and § 3724. Ellis v. Hopps, 30 Ga. App. 453, 118 S. E.
583.
§ 3724. (§ 3144.) Rights and liabilities of co-
tenants. — Every tenant in common has the right
to possess the joint property, and so long as he
occupies no greater portion of it than his own
share would be on division, and does not with-
draw from it any' of its' essential value, such as
mineral deposits, .. he is not liable to account for
rent to his cotenant; but if he receives any rent
or other profit, or commits any waste, or if he by
any means deprives his cotenant of the use of
his fair proportion of the property, or if he ap-
propriates all to his exclusive use, or if the prop-
erty is of such a character as that the use of it
must necessarily be exclusive, then he is liable
to account to his cotenant.
See notes under- §§ 3725, 3726, 3727. For a full treatment
of the rights, duties and liabilities of tenants in common,
see 7 Cum. Dig. 705 et seq.; 7 Enc. Dig. 813. et seq.
Use and Possession in General. — See 7 Cum. Dig. 705.
Same — Assignment of Interest by Joint Lessor. — Irre-
spective of whether the nine-year lease conveyed only a
usufruct, and of whether, even without any contractual
prohibition upon their right so to do, the joint lessees were
not authorized to assign their interests even to one an-
other (see, in this connection, §§ 3691, 3685, 3687, 3722;
Hutcheson v. Hodnett, 115 Ga. 990, 993, 994, 42 S. E- 422;
Schofield v. Jones, 85 Ga. 816, 823, 11 S. E- 1032; Collier
v. Hyatt, 110 Ga. 317, 35 S. E- 271; Robinson v. Perry, 21
Ga. 183, 185, 186, 68 Am. Dec. 455; Garner v. Byard, 23
Ga. 289, 68 Am. Dec. 527; DeFoor v. Stephens, 133 Ga. 617,
619, 66 S. E. 786; Walker v. Wadley, 124 Ga. 275, 285, 52
S. E- 904; Wilson Mfg. Co. v. Chamberlin-Johnson-Duttose
Co., 140 Ga. 593, 79 S. E. 965; Harms v. Entelman, 21 Ga.
App. 295, 94 S. E. 276; 16 Ruling Case Law, 828, 833), yet,
since each of the joint lessees, as a tenant in common, was
equally entitled under the lease to the right of possession
against the owners (see King v. Neel, 98 Ga. 438, 441, 2?
S. E. 513, 58 Am. St. Rep. 311; Hale v. Hale, 28 Ga. App.
509, 111 S. E. 740; 7 R. C. L. 820-822, 817 § 10, 891, 893),
unlike the assignee in Bass v. West, 110 Ga. 698, 705, 36
S. E- 244, and could not be summarily ousted by the land-
lords as a mere intruder, the attempted assignment by one
of the cotenants, of his interest in the lease to the other,
would not annul the rights of the latter under the contract,
where it contained no provision for such a forfeiture in case
of such an attempt, or even prohibiting such an assign-
ment. Cook v. McArthur, 31 Ga. App. 248, 120 S. E- 551.
See also, 7 Cum. Dig. 705.
Tenant in Exclusive Possession — Payment of Rent. — The
error assigned is that "a tenant in common can not re-
cover rents from his cotenant unless by an express con-
tract to pay rent." It was held the jury were authorized
to find from the evidence that the defendant appropriated
all of the premises in dispute to his exclusive use, in which
event he would be liable to his cotenant for rent under
this section. Jackson v. Lipham, 158 Ga. 557, 123 S. E-
887.
Same — By Lease — Forfeiture for Subletting — Assignment.
— A provision in a lease for a forfeiture of the term in
case of breach of a stipulation against subletting will, ordi-
narily be enforced, even where such subletting is from one
tenant in common to another; but if the lease merely
stipulates against subletting, with a forfeiture therefor,
an assignment, being distinct from a subletting, is not a
breach of a covenant against the latter. Cook v. Mc-
Arthur, 31 Ga. App. 248, 120 S. E. 551.
Same — Remedies of Co-tenant. — See the notes under §§
5355-5378.
W. sued out a distress warrant against J. The evidence
disclosed that they were joint owners and tenants in com-
mon of the property alleged to have been rented. The evi-
dence did not show that the relation of landlord and ten-
ant existed, and the trial court granted a nonsuit. It was
held, that whatever may have been the remedy of W. un-
der this section, a distress warrant was not the proper
remedy; and it was not error for the court to grant a
nonsuit and dismiss the distress warrant. Daniel v. Dan-
iel, 22 Ga. App. 95, 95 S. E. 323.
* Partition In Equity — To Oust Cotenant. — See notes to §§
5355-5378.
Where the peculiar circumstances render a proceeding
in equity more suitable and just, equity will take juris-
diction and partition the property under § 4783; Tate v.
Goff, 89 Ga. 184, 15 S. E- 30, and cases cited. But an equi-
table petition having for its object the complete ousting
of a tenant in common from the possession of the prop-
erty and from all participation in the profits thereof is
certainly not maintainable by a cotenant. In order for a
cotenant to get a standing in a court of equity, he must
come willing to do equity, and to do equity he must concede
and accord to his cotenant whatever rights he may have
in the property. Thompson v. Sanders, 113 Ga. 1024, 1026,
39 S. E. 419.
As a general rule the remedy of one tenant in common
who desires to obtain possession of his portion of the
property as against his cotenant is to institute proceedings
at law to have the land partitioned. See §§ 3726, 5358. And
where the tenant is also recovering more than his share
of the rents and property he is liable to an accounting.
See § 3727. In Logan v. Goodall, 42 Ga. 96, it was held
that one tenant in common might maintain against his
cotenant an action of ejectment and obtain a judgment
placing him in possession jointly with the defendant, and
that any equities between them could be thereafter settled
by a writ of partition or a bill in equity. The ruling made
in that case was, however, disapproved as obiter in San-
ford v. Sanford, 58 Ga. 259, 261, where it was held that a
tenant in common might sue severally in ejectment, but
could recover no more than his own interest. See also
Wilson v. Chandler, 60 Ga. 130; Dupon v. McLaren, 63
Ga. 470; Baker v. Middlebrooks, 81 Ga. 494, 8 S. E. 520.
It seems, therefore, that a tenant in common may recover
in ejectment from his cotenant his interest in the prop-
los;
§ 3725
TENANCY IN COMMON
§ 3726
erty. Thompson v. Sanders, 113 Ga. 1024, 1025, 39 S. E-
419.
Cultivation of Portion of Premises. — In the instant case it
appears, from undisputed evidence, that, while the tract
remained undivided, no written or executed parol agree-
ment of partition or decree of court therefor having been
made, the claimant in his own right and as subtenant of
the defendant in fi. fa. occupied and cultivated the par-
ticular 68 acres on which the crops were raised as the
equivalent of a third undivided interest in the entire prem-
ises, and that such actual segregation had been in opera-
tion apparently without objection for several years prior
to the taking of the present rent note. This they had the
right to do without payment of rent, unless such occupied
portion constituted a greater part of the premises than
they would have been entitled to on a proper division of
the property. Thompson v. Thompson, 31 Ga. App. 340,
121 S. E- 586.
Liability for Rent and Profit to Co-Owner. — For a full
treatment, see 7 Cum. Dig. 705; 7 Enc. Dig. 814. See S
3727 and note.
This was an action by one of two owners in common of
personalty against the other, to recover on half of the
rents and profits of the common property; and, there be-
ing no evidence of actual ouster, or of exclusive posses-
sion by the latter after demand by the former, or of ex-
press notice by the latter to the former of adverse posses-
sion, there was no error in the charge of the court which
limited the plaintiff's recovery to one half of whatever
rents the defendant actually received. § 3725 ; Smith v.
Smith, 141 Ga. 629, 81 S. E. 895: Hunt v. Harris, 149 Ga.
225, 99 S. E. 884. Houseworth v. Crews, 29 Ga. App. 579,
116 S. E. 217.
Occupancy by one co-tenant of the joint property, by the
consent of the other, does not necessarily relieve him from
the payment of the rent. Shiels v. Stark, 14 Ga. 429.
Same — Rule for Estimating. — See 7 Enc. Dig. 814.
Same — Measure of Recovery.— See 7 Enc. Dig. 814.
Liability for Waste. — By the Statutes of Westminister
(2, 6, 22, and 4 Anne C. 16, § 27), joint tenants, and ten-
ants in common, have an action for waste as well as an
account for the profits; and these Statutes are of force in
Georgia. Shiels v. Stark, 14 Ga. 429.
Liability for Improvements. — If tenant in common im-
prove the property while in possession and claiming to be
sole owner, and with no permission or request from the
cotenant, the latter is not chargeable with the value of
such improvements, beyond her share of the rents charge-
able to the former. Brazemore v. Davjs, 55 Ga. 504.
Liability for Acts of Agent. — See 7 Enc. Dig. 814.
Right to Injunction and Receiver. — See 7 Cum. Dig. 705;
7 Enc. Dig. 813.
Right to Convey or Incumber. — See 7 Cum. Dig. 706; 7
Enc. Dig. 814.
Rights and Liabilities to Third Persons. — See 7 Cum.
Dig. 707; 7 Enc. Dig. 815.
Action for Possession — Grounds. — Where there has been
no actual ouster of the plaintiffs no exclusive possession
by the defendant after demand, and no express notice by
her of a claim of adverse possession, no suit can be brought
by the tenant in common to recover possession from one
of their number. The remedy given to them, if she is in
possession of more than her share of the premises, or if
she has received more than her share of the income and
profits, is an application for an accounting, or for partition.
Daniel v. Daniel, 102 Ga. 181, 184, 28 S. E- 167. See the
notes to §§ 3726, 3727.
§ 3725. (§ 3145.) Adverse possession. — There
can be no adverse possession against a cotenant
until actual ouster, or exclusive possession after
demand, or express notice of adverse possession;
in either of which events the cotenant may sue
at law for his possession.
For a full treatment of the subject, see 1 Cum. Dig. 216,
217; 1 Enc. Dig. 172. As to title by prescription or ad-
verse possession in general, see §§ 4163-4178 and the notes
thereto.
When Statute Begins to Run. — If one tenant in common,
receive more than his just share, the statute of limitations
does not commence running in his favor, so as to bar an
action of account by the co-tenant, until the tenant begins
to hold such surplus adversely to the co-tenant, and knowl-
edge of that fact comes to the co-tenant. Huff v. Mc-
Donald, 22 Ga. 131.
Necessity for Compliance with Section — Question for Jury.
— "The rule is clear that before possession of one coten-
ant can be adverse to another there must be actual ouster,
or exclusive possession after demand, or express notice of
r io
adverse possession and the knowledge of such adverse
claim is a question for the jury." Gann v. Runyan, 134
Ga. 49, 52, 67 S. E. 435.
Exclusive Possession before Demand— Collecting Rents. —
The only evidence of an adverse holding is the bare fact
that the vendors of the defendant were in the exclusive
possession by their tenants or agents, and that what rents
were collected from the land were paid to them, their
agent testifying that he knew of no other owner or claim-
ant of the premises. We do not think this is sufficient to
make out a case of adverse holding by one cotenant against
another. Morgan v. Mitchell, 104 Ga. 596, 597, 30 S. E- 792.
Ouster — Necessity for. — See 1 Enc. Dig. 172.
Same — Acts Amounting to. — Entering into possession of
a portion of a cemetery lot, which is inclosed by a fence,
by one claiming to be the owner of such portion, and erect-
ing a substantial iron fence so as to divide the part so
claimed from the remaining part of the lot, is, as to that
peculiar character of property, an act showing adverse
possession of a public nature, totally irreconcilable with
cotenancy, and amounts to an actual ouster of others claim-
ing to be tenants in common with the possessor. Roumil-
lot v. Gardner, 113 Ga. 60, 38 S. E- 362.
Same — Same — Deed to Third Party Who Takes Posses-
sion.— "This section means that where two persons hold as
cotenants, one can not prescribe against the other, ex-
cept under those circumstances. But if one cotenant makes
a deed to the whole property and the grantee takes pos-
session and holds adversely, not as a cotenant, but as sole
owner, this is such an ouster as that prescription will
run. See Home v. Howell, 46 Ga. 9; Norris v. Dunn, 70
Ga. 796; McDowell v. Sutlive, 78 Ga. 143, 148, 2 S. E. 937;
Cain v. Furlow, 47 Ga. 674; Shipp v. Wingfield, 46 Ga.
593, 599; Woolsey's case, 19 Hun, 273." Street v. Collier,
118 Ga. 470, 481, 45 S. E. 294.
Same — Deed and Possession from Administrator of Co-
tenants. — If the administrator of a deceased cotenant sells
and makes to the purchaser a deed to the entire property,
and one claiming under such purchaser holds possession
thereof under a duly recorded deed conveying the entire
property, not as a cotenant but as sole owner of the entire
property, there is an actual ouster of the other cotenants,
and the latter have the right to sue for the possession of
their interest. Bowman v. Owens, 133 Ga. 49, 65 S. E- 156.
Same — Possession Under Years Support. — Where, after
the death of a land-owner, his estate was set apart as a
year's support for his widow and three children by her,
without mentioning two children of the decedent by a
former marriage, and the persons to whom the year's sup-
port was so set apart took exclusive possession of the
property under claim of title, this constituted a severance
from the other children, and a prescriptive title began to
run. Norris v. Dunn, 70 Ga. 796
Same — Possession Under Judicial Sale. — Where one of the
cotenant's land was sold by sheriff and he took the purchaser
to the vacant land and turned it over to him there was no
such ouster of tenant as to start statute to running. Harris
v. Howard, 126 Ga..325, 332, 55 S. E. 59.
Adverse Claim of Executor of Cotenant — Recovery.— Co-
tenants may maintain a suit to recover their share of the
common property from the executor of a deceased coten-
ant, who asserts an adverse claim to the whole. Coppedge
v. Coppedge, 144 Ga. 466, 87 S. E. 392.
Adverse Possession against Co-Partner. — 1 Cum. Dig. 217.
Charge — Substitution of "Actual Notice" for "Express
Notice." — The substitution of the expression, "actual no-
tice" for "express notice," in charging this section to the
jury, was not error. David v. Tucker, 140 Ga. 240, 78 S.
E. 909.
Same — Possession after Demand. — The charge was simply
that the plaintiffs could not contend that the defendant
was "in exclusive possession after demand," because the
evidence showed no demand by the plaintiff upon the de-
fendant for the possession of their interest in the land.
Bowman v. Owens; 133 Ga. 49, 53, 65 S. E. 156.
Time Required — Under Color of Title. — See § 4169.
A purchaser must maintain actual adverse possession
for seven years under color of title to get title. Home v.
Howell, 46 Ga. 9; Morgan v. Mitchell, 104 Ga. 596, 30 S.
E. 792.
Same — Under Adverse Possession Alone — Nature of Pos-
session Necessary. — See notes to §§ 4164-4167.
§ 3726. (§ 3146.) Partition. — Upon application
by any tenant in common, the superior court
may order partition as hereinafter provided.
As to action for partition, see §§ 5355-5378 and the "notes
thereto. See also the note to § 3724. For a full treatment
of partition, see 7 Cum. Dig. 706; 9 Cum. Dig. 249 et seq. ;
10 Enc. Dig. 155 et seq.
54]
§ 3727
CREATION AND NATURE OF TRUST ESTATES
§ 3728
§ 3727. (§ 3147.) Accounting between coten-
ants. — If one tenant in common receives more
than his share of the rents and profits, he is liable
therefor as agent or bailiff of the other cotenant;
and in equity the claim for such indebtedness is
superior to liens placed on his interest by the
tenant in possession receiving the profits.
For a treatment of this subject, see 7 Cum. Dig. 705,
706; 7 Enc. Dig. 814. For a treatment of accounting in
partition proceedings, see the notes to §§ 5355-5378.
At common law, one tenant in common, was not liable to
his companion, either for waste or the profits of the joint
estate but this was changed by the Statutes of West-
minster. Shiels v. Stark, 14 Ga. 429.
Suit against Executor of Deceased Cotenant. — Cotenants
may maintain a suit to recover their share of the common
property from the executor of a deceased cotenant, who
isserts an adverse claim to the whole. Coppedge v. Cop-
pedge, 144 Ga. 466, 87 S. E. 392.
Encumbrance of Estate — Cotenant's Superior Lien. —
Where a father and his son inherit property as tenants in
common from a deceased wife and mother, and the father
takes possession of all the property owned by himself and
son and uses it for his own benefit, the son in an equitable
accounting has a lien on such property for his claim there-
on, superior to liens placed on his interest by the tenant
in possession receiving the property. Bank v. Owens, 146
Ga. 464, 91 S. E. 476.
Set-Off in Accounting. — Where the father has property in
his hands belonging to himself and the son, although he is
not the son's guardian, yet in an equitable accounting be-
tween the father and son, on the trial of a claim case in
which an ancillary equitable petition is filed setting up the
rights of the father and son, the father has the right to a
set-off against the son for money expended for the latter
while a minor, whe.re it is made to appear that the father
was insolvent and unable to maintain and educate his son,
and that such expenditure was necessary for his main-
tenance and education. Maddox v. Oxford, 70 Ga. 179; Bank
v. Owens, 146 Ga. 464, 91 S. E. 476.
Joint Croppers — Possessory Warrant. — Where two parties
are jointly in possession of property as croppers, there must
be such a division as will put each in possession of his
part of the property in his own right, before a possessory
warrant will lie in favor of one, or his legal representative
on his death, against the other, or a purchaser from him,
to recover any portion of the joint property. Peebles v.
Morris, 77 Ga. 536, 3 S. E. 89; Usry v. Rainwater, 40 Ga.
329.
Jurisdiction in Equity. — Where a tenant in common is
receiving more than his share of the rents and profits,
equity will take jurisdiction of the matter and adjust the
accounts between them. See Daniel v. Daniel, 102 Ga. 181,
184, 28 S. E. 167. And where the peculiar circumstances
render a proceeding in equity more suitable and just, equity
will take jurisdiction and partition the property. Tate v.
Goff, 89 Ga. 184, 15 S. E. 30; Thompson v. Sanders, 113
Ga. 1024, 1026, 39 S. E. 419.
Equity has concurrent jurisdiction with courts of law,
over matters of account between tenants in common, and
when asserted, a court of chancery will hold and exercise
it for the purpose of settling all the equities between the
tenants, growing out of the tenancy in common. Andrews
v. Murphey, 12 Ga. 431.
Cited in McArthur v. Jordon, 139 Ga. 304, 77 S. E- 150.
CHAPTER 8.
Of Trust Estates, Trusts and Trustees, and
Deeds to Interests in Property for its
Improvement.
Of
ARTICLE 1.
Their Creation and Nature.
§ 3728. (§ 3148.) Definition.— Estates may be
created, not for the benefit of the grantee, but
for the use of some other person. They are
termed trust estates. No formal words are nec-
essary to create such an estate. Whenever a
manifest intention is exhibited that another per-
son shall have the benefit of the property, the
grantee shall be declared a trustee.
Cross References. — For a full treatment of trusts and
trustees, see 11 Cum. Dig. 165 et seq. ; 12 Enc. Dig. 298, 307,
308. As to cities as trustees, see §§ 887-891. As to precatory
words creating trust, see § 3742.
Transactions Section Applicable To. — This section and §
3742 do not confine the rules therein prescribed to wills, but
apply them to all contracts or agreements, and other trans-
actions by which a trust is declared in writing. Maxwell v.
lioppie, 70 Ga. 152, 159.
Nature of a Trust. — "A trust is an equitable obligation,
either express or implied, resting upon a person by reason
of a confidence reposed in him, to apply or deal with prop-
erty for the benefit of some other person, or for the benefit
of himself and another or others, according to such confi-
dence. 27 Am. & Eng. Enc. L. 3." McCreary v. Gewinner,
103 Ga. 528, 534, 29 S. E- 960.
Lack of Obligation. — There was no technical trust created
in her favor where X conveyed to a company land and it was
agreed to give her stock, etc., as payment; and the president
of the company occupied no such fiduciary position as trus-
tee. Heard v. Georgia Slate Co., 135 Ga. 606, 612, 70 S.
E. 12.
Formal Words — Change of Common Law. — The convey-
ance was, as before stated, to W., trustee for A. and chil-
dren. Before the adoption of our first code, such a deed
might, under the ruling in Trammell v. Inman, 115 Ga. 874,
877, 42 S. E- 246, have conveyed the title to the grantee in-
dividually, the words "trustee for A. and children" being
held to be descriptio personae only. But as to a deed
executed, as this one was, after the first code went into ef-
fect, the rule of construction is different, and such words
are held to create a trust in favor of A. and her children in
life when the deed is executed. For the law as declared by
our successive codes is, that no formal words are necessary
to create a trust, etc. Peavy v. Dure, 131 Ga. 104, 109, 62
S. E- 47. For a full treatment, see 12 Enc. Dig. 307, 308;
11 Cum. Dig. 166.
Expressed Trust — Creation. — See the note to § 3733.
"Where a person orally or in writing explicitly or im-
pliedly declares that he holds personal property in presenti
for another, such declaration constitutes him a trustee of
such property in an expressed trust for such other person.
The same principles of construction apply to a declaration
of trust in real property, except that such declaration must
be in writing." McCreary v. Gewinner, 103 Ga. 528, 535,' 29
S. E. 960.
"An agreement to hold the proceeds of land for another,
or an agreement, upon consideration of the surrender of a
title-bond, to sell the land and, after deducting certain
charges, to deliver the residue of the proceeds over to a
named person, creates a valid express trust for such pur-
pose." McCreary v. Gewinner, 103 Ga. 528, 535, 29 S. E-
960.
"An undertaking on the part of a mortgagee, in con-
sideration of the execution and delivery to him by the mort-
gagor of a deed to the mortgaged property, to sell the same
within a given time, and turn the proceeds, after making
certain deductions, over to a named person, creates a valid
express trust in favor of the latter." McCreary v. Gewin-
ner, 103 Ga. 528, 536, 29 S. E. 906.
Where the intended husband contracts with L that his
wife's property shall be free from all his marital rights, L
was ipso facto made trustee of this settlement with the
wife as the cestui que trust. Logan v. Goodell, 42 Ga.
115.
Same — Deed Conveying Property to Minor. — A deed which
conveyed realty to guardian of minors, created a trust es-
tate in the property described. See Wadley v. Oertel, 140
Ga. 326, 330, 78 S. E- 912; Trust Co. v. Wallace, 143 Ga. 214,
84 S. E. 538; Humphrey v. Johnson, 143 Ga. 703, 704, 85 S.
E. 830; Fleck v. Ellis, 144 Ga. 732, 87 S. E. 1055.
Implied Trust— Creation.— See note to §§ 3739, 3741.
Where a person has used language from which it can be
gathered that he intended to create a trust, and such in-
tention is not negatived by the surrounding circumstances,
and the settlor has done such things as are necessary in
equity to bind himself not to recede from that intention, and
the trust property is of such a nature as to be legally
capable of being settled, and the object of the trust is law-
ful, and the settlor has complied with the provisions of law
as to evidence, a good and valid declaration of trust has
(prima facie) been made. No technical terms or expressions
need be used. It is sufficient if the language used shows
that the settlor intended to create a trust, and clearly points
out the property, the beneficiary, and the disposition to be
made of the property. McCreary v. Gewinner, 103 Ga.
528, 535, 29 S. E. 960.
[ 1055 ]
§ 3729
CREATION AND NATURE OF TRUST ESTATES
§ 3729
"In the case of Maxwell v. Hoppie, 70 Ga. 152, it was said
that 'any agreement or contract in writing made by a per-
son having the power of disposal over property, whereby
such person agrees or directs that a particular parcel of
property or a certain fund shall be held or dealt with in a
particular manner for the benefit of another, in a court of
equity, raises a trust in favor of such other pet son against
the person making such agreement, or any other person
claiming under him voluntarily or with notice,' citing 1
Perry on Trusts, § 82." McCreary v. Gewinner, 103 Ga.
528, 535, 29 S. F. 960.
No formal words are necessary to create a strict trust.
Much less are formal words necessary to create a trust of
the kind which we are considering (a trust charging execu-
trix with fixing certain graves to the satisfaction of testa-
tor's daughters). In all such cases the provision imports
a power, the power implies a trust, and the trust becomes
a duty. Collins v. Collins, 157 Ga. 85, 88, 121 S. F. 218.
Provisions in wills may be such that a trust is necessary
in order to carry out and enforce them. In such a case an
intention on the part of the testator to create the trust
will generally be inferred and no formal words are necessary
to create such an estate. Bell v. Watkins, 104 Ga. 345, 350,
30 S. F- 756.
Trust for Payment of Mortgage. — "In the case of Feather -
stem v. Richardson, 68 Ga. 501, where the deed, after ex-
pressing a nominal consideration, also expressed the further
consideration that the grantee was to pay off and discharge
certain mortgages, it was held that the deed conveyed the
title in trus*- for the purpose of paying off the mortgages,
and with the vesting of an absolute title, conditioned upon
the grantee's performance thereof." McCreary v. Gewin-
ner, 103 Ga. 528, 535, 29 S. F. 960.
Words Creating a Trust. — The following w^rds create a
trust and make the daughters trustees for their children, if
any: "My said effects thus going into the hands of my
said daughters [that is, at the death of the life-tenant],
not to be subject to the control of any husband, but the
same to beiong to my said daughters and other children."
Sumpter v. Carter, 115 Ga. 893, 906, 42 S. F- 324. And see
Baird v. Brookins, 86 Ga. 709, 716, 12 S. F- 981.
A parol trust as to slaves was illegal and void. See note
to § 3733. Cobb v. Battle, 34 Ga. 459.
Trustee for Future Estate. — As our code provides that,
"An absolute estate may be created to commence in future,
and the fee may be in abeyance without detriment to the
rights of subsequent remainders" (§ 3658) it follows that it
is not necessary, whether a trust for the life-tenant is
created or not, for the fee to pass out of the grantor or
devisor with the particular estate. Fleming v. Hughes, 99
Ga. 444, 449, 27 S. F- 791.
Grantor as Trustee. — The title to the property conveyed
by the deed in this case was in the grantor as trustee for
his wife and children. Adams v. Barlow, 69 Ga. 302.
Mother as Tenant in Common and Trustee. — The legal
estate in remainder is not devised directly to testator's
daughters and their children. On the contrary, it goes into
the hands of the daughters, at the death of the life-tenant,
to belong to them and their children. These words create a
trust and make the daughters trustees for their children,
if any. Gordon v. Greene, 10 Ga. 534; Sumpter v. Carter,
115 Ga. 893, 906, 42 S. F- 324.
Where land was conveyed to B., the wife of C, for her
sole and separate use, and for the use of her children born
and to be born by the said C, to have and to hold the same
for the uses aforesaid, a trust estate was created in B.
under this section providing that no formal words are ne-
cessary, for her sole and separate use, and for the use of
her children, as above described. Brady v. Walters, 55
Ga. 26.
Father as Trustee. — Where a father has property con-
veyed to himself to hold tor his minor son and the father
is not testamentary or statutory guardian, he is a trustee.
McCrary v. Clements, 95 Ga. 778, 22 S. F. 675.
Life Tenant as Trustee for Remainderman. — That an es-
tate is given to A. for life, or years, and, to B. in remainder,
does not make A. the trustee of B. as to B's remainder.
Eussell v. Kearney, 27 Ga. 96.
Assignee in Assignment for Creditors — The assignee in a
deed of assignment for creditors is trustee for unpreferred
creditors named therein. Cohen & Co. v. Morris & Co.,
70 Ga. 313.
§ 3729. (§ 3149.) For whom.— Trust estates
may be created for the benefit of any minor, or
person non compos mentis. Any person com-
petent by law to execute a will or deed may, by
such instrument duly executed, create a trust for
any male person of age, whenever in fact such
person is, on account of mental weakness, intem-
perate habits, wasteful and profligate habits,
unfit to be entrusted with the right and manage-
ment of property: Provided, the requisitions of
the law in all other respects are complied with:
And provided further, if when so created by
deed, the same be recorded where the cestui que
trust resides, within three months from its .exe-
cution, and if not so recorded the same shall be
null and void: Provided also, if at any time the
grounds of such trust shall cease, then the bene-
ficiary shall be possessed legally and fully of the
same estate as was held in trust, and any person
interested may file any proper proceeding in the
superior court, where the trustee resides, to have
the trust annulled on that ground, if he so de-
sires. Any person having claims against the
beneficiary may avail himself of any provisions
of the Code in relation to condemning trust
property at common law. Acts 1876, p. 26.
Cross References. — For a full treatment of for and by
whom a trust may be created, see 11 Cum. Dig. 165, 12 Fnc.
Dig. 298 et seq. As to treatment of spendthrift trusts, see
9 Cum. Dig. 417, 11 Fnc. Dig. 187. As to public parks, etc.,
being hekPin "trust by city, see §§ 887-891. As to equity's
control of charities, see §§ 4603-4608. Conveyance of title to
wife through trustees, as to appointing and removing of
trustee for wife, see § 3704.
Editor's Note. — It appears, from the following sections,
that this section, in enumerating the classes of persons for
whom trusts may be created, is confined to expressed trusts.
(See § 3739.) There seems to be no restriction upon the
classes of persons for whom an implied trust may result.
As to appointment of guardian for the issue. See §§ 2169,
3089. As to the execution of a trust, see § 3736. As to crea-
tion of trust for improvement of property, see § 3792. As
to vesting of title upon termination, see § 3795.
Physical Infirmities as Ground. — This section which under-
takes to define for what persons trust estates may be
created, takes no account of physical infirmities. The only
considerations which enter into the classification of those
persons for whom trust estates may be created, are those
which relate to mental, and not physical, disabilities. It
will be observed that it is the mental imbecility, and not
the physical weakness resulting from old age, rendering one
incapable of managing his estate, which makes him sub-
ject to have a guardian appointed to take charge of and
manage his estate. So it is the mental weakness, or that
intemperance, wastefulness and profligacy of habit, which
indicates the existence of an unsound, and unbalanced mind,
and which exists to such an extent as to unfit one to be
entrusted with the management and control of property,
which enables him to be the subject of a trust. Unless
these conditions exist, then he can not be a cestui que trust
under a trust estate created for his benefit alone upon the
conveyance to a third person. Sargent v. Burdett, 96 Ga.
Ill, 118, 22 S. F. 667.
Grantor as Cestui Que Trust. — A person can not by deed
create out of his own property, upon his own behalf, a
trust estate. A deed executed for Such a purpose is void,
and passes no interest, legal or equitable, to the trustees
named. In such a case the whole title remains in the gran-
tor, and the property so sought to be conveyed is subject
to the payment of his debts. Sargent v. Burdett, 96 Ga.
Ill, 22 S. F- 667.
Sui Juris Persons. — A trust estate can not be created in
property for the sole benefit of a male who is sui juris, and
conveyed to a trustee for the purpose of protecting it from
his creditors. Gray v. Obear, 54 Ga. 231. See authorities
cited under § 3737.
The testatrix by her will undertook to create a trust for
her brother and sisters, who were sui juris and had no in-
temperate, wasteful, or profligate habits. This, under this
section she could not do. When, therefore, she died, the
trust became immediately executed. Lester v. Stephens,
113 Ga. 495, 498, 39 S. F. 109.
A person who is twenty-one years of age and fully capable
of managing her own property does not come within any
of the provisions of this section providing for whom trusts
may be created, and where one has been created for her
may have it declared void. Munford v. Peoples, 152 Ga.
31, 44, 108 S. F. 454.
Trusts estates to persons sui juris for life with remainder
over to persons sui juris will be allowed to stand, because.
[ 1056 ]
3729
CREATION AND NATURE OF TRUST ESTATES
§ 3730
though as to the cestui que trust it is executed, the entire
Ust is not executed, the part relating to the remainder
ing executory. However the existence of a mere limitation
er is insufficient to keep the trust alive. Something must
main to be done. See Sinnott v. Moore, 113 Ga. 914, 39 S.
, 415; Devaughn v. Hogs, 140 Ga. 208, 78 S. E. 844.
Same — Agent as Trustee. — Where one received money to
vest and reinvest from time to time, the relation existing
is not such that a technical, subsisting trust, cognizable
ily in a court of equity, would result therefrom; and for
is' reason the provisions of this section prohibiting the
eation of a trust in favor of a person sui juris who is
boring under no disability, have no application. Teasley
Bradley, 110 Ga. 497, 503, 35 S. E. 782.
Spendthrift Trusts. — "Spendthrift trusts, as they are
rmed, were not built up by the courts. Gray v. Obear, 54
a. 231. They are allowed by statute, but only in certain
■fined cases." Wright v. Hill, 140 Ga. 554, 565, 79 S. E.
6.
Same — Burden of Proof. — Where the law permits the
eation of a "spendthrift" trust and a will or deed creates
ich a trust, the trust is prima facie valid, and the burden
on the beneficiaries to show that they are not within any
the classes described in this section allowing such trusts
. be created. Sinnott v. Moore, 113 Ga. 908, 39 S. E- 415.
Same — Cessation — Annullment. — If at any time the
•ounds for the creation of a "spendthrift" trust shall
:ase, then the beneficiary thereof shall be possessed legally
id fully of the same estate as was held in trust; and he
ay file a proper proceeding in the superior court of the
mnty where the trustee resides, to have the trust an-
ailed on that ground. DeVaughn v. Hays, 140 Ga. 208,
1 S. E. 844.
Husband as Trustee for Wife. — A deed conveying land to
married man "as trustee for his wife," naming her, though
ade prior to the adoption of the code, created a separate
;tate in the wife, it appearing that the husband accepted
le deed as being effectual for this purpose, and recognized
le property as hers, and that though he jointly occupied
with her, he had never claimed title to it. This case dif-
rs from that class of cases wherein deeds of like import
id containing no special words creating a separate estate
. the wife, were made to persons other than the husband,
le grantee being designated "as trustee" for the wife, but
ith the making or accepting of which deeds the husband
id nothing to do. Evans v. Bethune, 99 Ga. 582, 27 S. E.
'7.
Effect of Married Woman's Act. — "As shown by the de-
sions of this court, and the authorities cited therein, our
arried woman's act of 1866 terminates a trust far quicker
lan the statute of uses. Under the latter statute, a trust
>r a woman, married or single, became executed only by
le - death of herself or her husband in her lifetime; while
nder our act first mentioned, the trust, if created before,
;rminates at the date of the act, if the cestui que trust
as then twenty-one years of age, and if afterwards, upon
ke condition, it became a legal estate instanter, from the
ate of the deed, or the death of the testate, whether the
state be solely for such beneficiary, or there is a limitation
ver in trust, or not. Therefore, the cases of Askew v.
atterson, 53 Ga. 209; Ford v. Cook, 73 Ga. 215; Knorr v.
aymond, 73 Ga. 749, 764; Cushman v. Coleman, 92 Ga. 772,
IS, 19 S. E. 46, and other cases like them, where trusts
ere expressly created for both the life-tenants and re-
maindermen, and the life-tenants died before our married
soman's act, as well as such cases of trust as have been
etermined otherwise than as above after said act, with-
ut its effect being made a question for this court to decide,
re clearly distinguishable from, and have no application
diatever to the case at bar." Fleming v. Hughes, 99 Ga.
44, 447, 27 S. E. 791.
The trust to protect the estate of the life-tenant during
er minority, and from the marital rights of any husband
nth whom she might intermarry, when created in the year
865, was good. Fears v. Brooks, 12 Ga. 195-197. But when
hose objects ceased by the life-tenant arriving at the age
f twenty-one years, after the married woman's act of De-
ember 13, 1866, without marrying, the estate of the original
rustee, were he then in life, would have become wholly
iassive and executed. Fleming v. Hughes, 99 Ga. 444, 446,
7 S. E. 791.
A conveyance in trust for a woman, married or single, of
ull age and sound mind, with no remainder to protect, and
lothing prescribed for the trustee to do, operates to pass
he legal title immediately into the beneficiary, the con-
veyance being made since the passage of the act of 1866.
rbe trust is then executed. Rome v. Shropshire, 112 Ga. 93,
I S. E. 168. See Cain v. Ligon, 71 Ga. 694; Howard v. Simp-
tins, 70 Ga. 322, 328; Sutton v. Aiken, 62 Ga. 734.
Trust to Preserve Contingent Remainder. — Under the old
law in England, and possibly in this state before the code,
a trust to preserve a contingent remainder was only neces-
sary because such a remainder was then liable to be de-
feated by the premature termination of the life-estate, by
forfeiture or otherwise. Fleming v. Hughes, 99 Ga. 444,
448, 27 S. E- 791.
While under certain circumstances a valid trust can be
created in this state for the benefit of a person of full age;
Sinnott v. Moore, 113 Ga. 908, 39 S. E. 415; Moore v. Sin-
nott, 117 Ga. 1010, 44 S. E. 810, the mere fact that there is a
legal remainder over, will not suffice to uphold a trust for
one sui juris. The ruling in Lester v. Stephens, 113 Ga.
495, 39 S. E. 109, is not authority to the contrary; for then
the testatrix by her will undertook to create a trust for her
brother and sisters who were sui juris and had no intemper-
ate, wasteful, or profligate habits, which it was held slu*
could not do under this section, and that therefore upon her
death the trust became immediately executed. DeVaughn
v. Hays, 140 Ga. 208, 210, 78 S. E. 844.
Recordation — Not Applicable to Deed for Minors. — A deed
creating a trust for the benefit of minors is not inadmissible
in evidence because not recorded within three months after
its execution. The provision contained in this section de-
claring certain deeds void if not recorded within three
months, has no application to trust deeds for the benefit of
minors. Heatley v. Long, 135 Ga. 153, 68 S. E. 783.
Termination — Intent of Parties. — "Whether or not a trust
should, at a certain time, or upon a certain event, be held,
under the statute of uses, to be so executed as to pass the
legal title from the trustee to the cestui que trust, was
never made to depend on whether or not the parties to the
contract, or the grantor, or testator, intended such a re-
sult. The execution of the trust was a result which the
statute forced on the parties nolens volens. When that
statute was enacted, it operated eo instanti upon trusts al-
ready existing, as well as upon future ones. No matter by
what words of unmistakable import the creator of the trust,
before or after the act, had declared his determination that
the trustee should continue to hold the legal title, the stat-
ute declared, on grounds of public policy and with the
sovereign voice, that he should hold it no longer." Knorr
v. .Raymond, 73 Ga. 749, 770.
Ejectment Against Trustee. — The trust as to these life
tenants was executed, and they were entitled to possession
A cestui que trust, entitled to the possession of land, may
maintain ejectment against a stranger, who has no title,
or even against the trustee who wrongfully withholds pos-
session. Glover v. Stamps, 73 Ga. 209.
Destruction of Trust. — A valid trust can be created in
this State for the benefit of a person sui juris, for life, with
remainder over in trust for another person sui juris, for
life; and the fact that there is an ultimate remainder over
to a third person which is invalid, under the statute for-
bidding, under certain conditions, donations to charities, does
not destroy or execute the trusts created for the benefit of
the life-tenants. Sinnott v. Moore, 113 Ga. 908, 39 S. E-
415.
Repeal Act of 1863 — "It is insisted that the act of 1863,
which repealed that portion of § 2287 of the code of 1863,
now this section, which declared 'that trust estates can not
be created in any property for any male person of sane
mind,' was intended to change the law in relation to that
class of persons. We are inclined to think that it was the
intention of the legislature, in passing the act of 1863, only
to repeal so much of the section of the Code referred to in
the act as prohibited the creation of trusts, express or im-
plied, in any property for any male person of sane mind, and
not to repeal that portion of the Code which declared that
a trust estate could not be created in any property for any
male person of sane mind. The caption of the act and the
words in the body of it only refer to the creation of trusts,
and not to the creation of trust estates. But be that as it
may, that section of the Code which declared that a trust
estate could not be created in any property for any male
person of sane mind, was only declaratory of what was
the common law of force in this state at the time of the
adoption of the Code, and the repeal of the declaratory
statute, without more, left the common law applicable to
that question in full force and operation." Gray v. Obear.
54 Ga. 231, 234.
§ 3730. (§ 3150.) Separate estate.— No words of
separate use are necessary to create a trust es-
tate for the wife. The appointment of a trustee,
or any words sufficient to create a trust, shall
operate to create a separate estate.
Editor's Note. — It is very probable that this section will
be a dead letter in the code in the future, because it is
difficult -to imagine a set of circumstances to which it
Ga. Code— 34
[ 1057 ]
3731
CREATION AND NATURE OF TRUST ESTATES
§ 3735
would be materially applicable. It seems that the purpose
of the section was to protect the wife's rights against the
harsh rule of the common law, that, in order for a separate
estate to be created in her, distinct words to that effect,
excluding the marital rights of the husband, must be used.
So with this section it was much easier to create a separate
estate. But after the Married Woman's Act of 1866, now
§ 2993 of the code, the section was not necessary under any
circumstances to create such an estate. And any attempt
to create a trust for her with her husband or anyone else
as trustee would be useless because it would be executed
and would immediately vest title in her under § 3737, as
was done in the case of Munford v. Peeples, 152 Ga. 31, 108
S. E. 454, unless she be an infant, non compos mentis, or
person of profligate habits, in which case she would be
protected as are other persons under such circumstances.
All the cases which have arisen under it arose out of con-
tracts and settlements prior to the code, the last one being
Trammell v. Inman, 115 Ga. 874, 42 S. E- 246. If another
should arise reference should be had to the following cita-
tions for the authorities: For a full treatment of separate
estates, see 10 Cum. Dig. 221 et seq. ; 11 Enc. Dig. 272 et
seq.; see also, 11 Cum. Dig. 166; 12 Enc. Dig. 307. As to
wife being feme sole as to separate estate, see § 3007. As
to the effect of marriage on the separate estate, see § 2993.
As to executor's duty having funds in hand belonging to
separate estate, see § 4011.
§ 3731. (§ 3151.) Express, etc. — Trusts are
either expressed or implied.
See the notes to §§ 3732, 3733, 3739. Quoted in Jackson v.
Jackson, 150 Ga. 544, 546, 104 S. E. 236; Jenkins v. Lane, 154
Ga. 454, 115 S. E. 126.
§ 3732. (§ 3152.) Definitions. — Express trusts
are those created and manifested by agreement
of the parties. Implied trusts are such as are
inferred by law from the nature of the transac-
tion, or the conduct of the parties.
Cross References. — For a classification and a full treat-
ment of trusts, see 12 Enc. Dig. 306 et seq.; 11 Cum. Dig.
166 et seq. For a treatment of expressed trusts, see note
to § 3733. For treatment of implied trust, see note to §§ 3739,
3741. As to a remitting trust, see § 3735.
Expressed Trust. — The appointment of an agent to pur-
chase land for prisoner's family does not create an expressed
trust under the definition of this section. Beazley v. Kend-
rick, 78 Ga. 121, 123. See § 3733 and note.
Implied Trusts. — "While an express trust can only be
shown by a writing, an implied trust may rest upon an
express parol agreement, fraudulently made, by which a
person acquires title to property of another; and in such
case the express promise or agreement may be proved by
parol to raise, not an express, but an implied trust." See
§§ 3739 and 3741 and notes. Jenkins v. Lane, 154 Ga. 454,
477, 115 S. E. 126.
Where property was purchased by plaintiffs, defendants
and their father and conveyed to the mother upon under-
standing that upon her death it was to be equally divided
between her heirs, no implied trust was created under the
definition of this section. DeLoach v. Jefferson, 142 Ga.
436, 83 S. E. 122. '
Where the children executed a deed to father to consum-
mate sale which he failed to do but claim land as own, an
implied trust was created under this section and the deed
will be reformed. Summerour v. Summerour, 148 Ga. 499,
97 S. E. 71.
Where A. promises X. and her relative to come by hotel
for her and accompany them to public sale, but fails to
come by, telling the relative he will buy property for X.,
an implied trust is created, under this section, when he
buys in the property. Rives v. Eawrence, 41 Ga. 283, 288.
Quoted in Jenkins v. Lane, 154 Ga. 454, 477, 115 S. E. 126.
See the note to § 3739.
§ 3733. (§ 3153u) Express, etc.— All express
trusts must be created or declared in writing.
Cross References. — For an additional treatment, see 11
Cum. Dig. 167 et seq.; 12 Ehc. Dig. 309 et seq. As to the
statute of frauds generally, see § 3222. As to creation of
estate in remainder by parol, see § 3679. As to trust in favor
of ■ public where property dedicated to public* use for long
>ime, see § 4171.
Origin of Section. — "This section was taken from the.
statute of frauds (29 Car. II, c. 3; Cobb's Digest, 1127, §
7)." Jenkins v. Lane, 154 Ga. 454, 476, 115 S. E. 126.
There can be no expressed trust unless it is created in
writing. Smith v. Peacock, 114 Ga. 691, 697, 40 S. E. 757.
A gift can not be supported on the theory of an express
trust unless such trust be created or declared in writing.
Jackson v. Gallagher, 128 Ga. 321, 324, 57 S. E. 750.
Where the facts preclude an implied trust from being
created, an express trust will also fail if not declared im
writing. Walker v. Brown, 104 Ga. 357, 361, 30 S. E- 867.
A trust of personalty may not only have ' been created,
but proven, by parol prior to the code. Kirkpatrick v.
Davidson, 2 Ga. 297; Gordon v. Green, 10 Ga. 534, 543. See
also Miller v. Cotton, 5 Ga. 342, 346; Robson v. Harwell,
6 Ga. 589; Cameron v. Ward, 8 Ga. 245, 248, allowing parol
trust on ground of fraud. See discussion in Jenkins v.
Lane, 154 Ga. 454, 476, 115 S. E. 126.
But since this section was adopted in 1863 the trust must
be in writing. Oglesby v. Wilmerding, 149 Ga. 45, 46, 99 S.
E. 29.
Section Imperative — Interference by Equity. — This section
is imperative, that express trusts must be in writing.
Equity will only interfere when the setting up of the stat-
ute would be to protect a fraud or prevent relief against an
accident. See Bentley v. Young, 147 Ga. 373, 376, 94 S. E.
221; Printup v. Barrett, 46 Ga. 407, 412.
An express trust can not be engrafted on the conveyance
of the property by parol. Jones v. Jones, 138 Ga. 730, 75 S.
E-. 1129; Malone v. Malone, 137 Ga. 329, 73 S. E. 660. Sc
where one agrees in parol to buy a plant and then to con-
vey one half of it to the plaintiff, the agreement is nd
binding as an expressed trust. Bentley v. Young, 147 Ga,
373, 376, 94 S. E. 221.
Where two persons buy land jointly and the deed is made
to third person in trust a reformation of the deed, convey-
ing the land to third parties, is not authorized, because an
express trust can not be engrafted on a deed by parol. Wil-
der v. Wilder, 138 Ga. 573, 75 S. E. 654; DeLoach v. Jef-
ferson, 142 Ga. 436, 83 S. E. 122; Jenkins v. Georgia Inv
Co., 149 Ga. 475, 100 S. E. 635.
Parol Promise May Be Basis for Implied Trust. — Prom-
ises, whatever may be their terms, do not, unless reducec
to writing, raise express trusts; but the law, acting upor
them according to their nature, makes them a basis upor
which to build up in favor of the defrauded party an im<
plied or constructive trust. Brown v. Doane, 86 Ga. 32, 38
36 S. E. 800; Taliaferro v. Smiley, 112 Ga. 62, 37 S. E. 106.
Agent Receiving Funds for Investment. — Where a persoi
or agent for another receives funds for investment no ex
pressed trust is created and this section does not apply
Teasley v. Bradley, 110 Ga. 497, 502, 35 S. E. 782.
Allegation of Writing.— "While the trust must have beei
created or declared in writing, it was not necessary for thi
pleader to so allege in the petition. Brown v. Drake, 10
Ga. 130, 28 S. E. 606; Walker v. Edmundson, 111 Ga. 454
36 S. E. 800; Taliaferro v. Smiley, 112 Ga. 62, 37 S. E. 106
Eaton v. Barnes, 121 Ga. 548, 549, 49 S. E. 593.
Amendment Setting up Parol Trust. — An amendment to ;
petition, the effect of which would be to establish a paro
expressed trust, will not be allowed. Brown v. Carmichacl
152 Ga. 353, 354, 110 S. E. 3; Pound v. Smith, 146 Ga. 431
435, 91 S. E. 405.
Examples of application will be found in Smith v.' Wil
Hams, 89 Ga. 9, 12, 15 S. E. 130; Oglesby v. Wilmerding
149 Ga. 45, 46, 99 S. E. 29; Jones v. Jones, 138 Ga. 730, 73:.
75 S. E- 1129; Wheeler v. Wheeler, 139 Ga. 604, 605, 77 S
E. 875; Roughton v. Rawlings, 88 Ga. 819, 16 S. E. 89; Whit
v. Daniel, 261 Fed. 70, 72.
§ 3734. (§ 3154.) Contingent and shifting.— A:
express trust may depend for its operation upo:
a future event, and is then a contingent trust. I
may operate in favor of additional or other benefi
ciaries upon specified contingencies, and is then
shifting trust.
As to creation of estate in remainder and right of heirs
see §§ 3677, 3679: As to necessity for trustee for contingen
trust, see § 3658.
Where a marriage settlement provided that if the wif
should survive with children by the marriage and the
marry again, and have children, the children should all in
herit alike from the mother, the property being lodged i
a trustee for this purpose, an express trust depended upo
a future event and was a contingent trust. Ardis ^
Printup, 39 Ga. 648.
§ 3735. (§ 3155.) Resulting trust.— An implie
trust is sometimes for the benefit of the grantoi
or his heirs, or heirs or next of kin pf a testatoi
and is then a resulting trust.
Cross References. — For a further treatment of resultin
[ 1058 ]
§ 3736
CREATION AND NATURE OF TRUST ESTATES
§ 3736
trusts, see 11 Cum. 181; 12 Enc. Dig. 329. As to a
resulting trust where no use is declared, see § 3739 (4). As
to the rebuttai of gift between near relatives by showing
resulting trust, see § 3740. As to when one declared trus-
tee by court, see § 3780.
Not Abolished by Section 3258. — Section 3258, does not
abolish the doctrine of implied or resulting and constructive
trusts in this State. The doctrine has since been recognized
in many cases. See Miller v. Cotton, 5 Ga. 342; Williams
v. Turner, 7 Ga. 348; Jackson v. Jackson, 150 Ga. 544, 553,
104 S. E- 236,
Distinguished from Constructive Trust. — "A resulting
trust is an implied-in-fact or inferred trust. It is not "based
upon fraud or misrepresentation. On the contrary, the
basis of the true constructive trust is fraud, actual or 'con-
structive,' and our own cases, it must be conceded, seem
to require actual fraud. It may be that the trust is not
resulting, but constructive." Jackson v. Jackson, 150 Ga.
544, 548, 104 S. E. 236.
Excepted from Statute of Frauds.— That our code excepts
from the statute of frauds resulting and constructive trusts
is not open to doubt. Jackson v. Jackson, 150 Ga. 544, 553,
104 S. E. 236. See §§ 3739, 3740.
Effect of Oral Agreement of Trustee to Hold.— "An ex-
press oral agreement of the wife to hold in trust for the
husband will not operate to defeat the so-called resulting
trust." Jackson v. Jackson, 150 Ga. 544, 556, 104 S. E. 236.
Between Husband and Wife.— Where A pays the pur-
chase-money and causes the deed to be made to his wife, and
an oral agreement to hold in trust for A is shown to re-
but the presumption of gift, the majority view is that the
trust is nevertheless resulting if the oral agreement is not
different from the agreement which would be implied if the
grantee were legally a stranger to A. Jackson v. Jackson,
150 Ga. 544, 550, 104 S. E- 236. See § 3740.
Rebuttal of Resulting Trust. — A resulting trust may be
rebutted even by parol declarations of the person in whose
favor it would otherwise be raised; and it is effectually re-
butted by a subsequent deed taken by the same parties
proffering to follow the very same trusts by the deed of
1819. Adams v. Guerard, 29 Ga. 651, 672.
§ 3736. (§ 3156.) Execution of trusts. — Trusts
are either executed or executory. In the former,
everything has been done by the trustee required
to secure the property, or to render certain the
interest of the beneficiaries, and all that remains
for him to do is to preserve the property and ex-
ecute the beneficial purposes. In executory
trusts, something remains to be done by the
trustee, either to secure the property, to ascer-
tain the objects of the trust, or to distribute ac-
cording to a specified mode, or some other act,
to do which requires him to retain the legal
estate. .
Cross References.— For a further treatment of the execu-
tion of trusts, see 11 Cum. Dig. 182-194; 12 Enc. Dig. 332-
342. For a provision for the execution of trusts in certain
instances, see § 3729. As to execution of trust deed for
improvements in certain instances, see § 3792.
Editor's Note.— The purpose of the English Statute of
uses, 27 Henry VIII, was to do away with trust estates by
having the legal title follow the equitable title, thus lodging
the complete estate in the cestui qui trust.
In Georgia this Statute has been adopted in a qualified
sense only. The policy of the Georgia law is to protect
those who need protection because of some disability to
care for their property. So the law is free to allow trusts
in such cases; it may even be said that the law of the
state fosters such trusts. But on the other hand just the
moment a trust is attempted for the benefit of a person
wholly competent to care for his property, or just the
moment a disability is raised so that a person becomes
competent to protect his property, the law is equally
zealous to fasten such responsibility upon him and give
him the privilege of doing so, thus executing the trust.
So to this extent the statute of uses is in force in Georgia; a
trust can not be created for a person fully competent in
law to manage his property. As was said in Beckwith v.
Rector, 69 Ga. 564, 572, "the only statute of uses in force
(in Ga.) is that of 27 Henry VIII, as found embodied in
§§ 2313, 2314, 2315 (now §§ 3736, 3737,' 3738) of the code."
For a comprehensive treatment of the statute of uses in
Georgia, reference may be had to 12 Enc. Dig. 340-342; 11
Cum. Dig. 185, 186.
Section Modification of Statute of Uses. — In certain cases
there is a sufficient remainder of duties, and consequent
rights, in the trustee to prevent the legal title from pass-
ing out of him. That remainder of duties is sufficient,
whenever the beneficiary, by reason of minority, or from
being non compos mentis, can not himself so manage his
property as is needful to its due preservation and the fulfil-
ment of its beneficial purposes. In such cases, since the bene-
ficiary can not so preserve the property and execute the pur-
poses — can not legally administer the estate — somebody must
do it for him. Knorr v. Raymond, 73 Ga. 749, 769. See "Il-
lustrations of Executory Trusts" below, in this note.
The term, "executed trust," in this and the following sec-
tion describes the same state of facts, as to the duties of
the trustee, as it described before the Code, but it does not
necessarily imply the extinction of the trustee's title.
Knorr v. Raymond, 73 Ga. 749, 770.
Trusts Executed as Creation. — See 11 Cum. Dig. 182; 12
Enc. Dig. 333.
A trust becomes executed upon coming into existence if
the cestui is then sui juris, or so soon as he become so.
DeVaughn v. Hays, 140 Ga. 208, 78 S. E. 844. See also
Lester v. Stephens, 113 Ga. 495, 39 S. E. 109; Glover v.
Stamps, 73 Ga. 209, 211; Gray v. Obear, 54 Ga. 231, 235.
A deed directing a trustee to convey estate to remainder-
man after termination of life estate did not make trust
executory. Wilbur v. McNulty, 75 Ga. 458, 465.
Where trustees were appointed to "see that beneficiary
has all the benefits accruing," the trust was executed un-
der the principles of this section. Woodward v. Stubbs,
102 Ga. 187, 188, 29 S. E. 119. See also, Edmondson v. Dy-
son, 2 Ga. 307, 320; Hawkins v. Taylor, 61 Ga. 171; Bull
v. Walker, 71 Ga. 195; Carswell v. Lovett, 80 Ga. 36, 4 S.
E. 866.
Where Grounds for Trust Ceases. — If at any time the
grounds for the creation of a "spendthrift" trust shall cease,
then the beneficiary thereof shall be possessed legally and
fully of the same estate as was held in trust; and he may
file a proper proceeding in the superior court of the county
where the trustee resides, to have the trust annulled on
that ground. DeVaughn v. Hays, 140 Ga. 208, 78 S. E.
844.
Same — Probability of Issue Extinct. — The trust was not
executed until all probability of the birth of any more chil-
dren from B. by C, had become extinct. Brady v. Walters,
55 Ga. 26.
Trusts for Married Women. — See 12 Enc. Dig. 339.
Where, before the married woman's- act, the object oi
trust was to protect property against marital rights cf
husband, it became executed at death of husband. Coughlin
v. Seago, 53 Ga. 250, 251; Lampkin v. Hayden, 99 Ga. 363,
364, 27 S. E. 764.
Where a trust was created before the act of 1866, the
trust was executed upon the passage of that act. See Banks
v. Sloat, etc., Co., 69 Ga. 330; Knorr v. Raymond, 73 Ga.
749; Kile v. Fleming, 78 Ga. 1; and Harrold, etc., Co. v.
Westbrook, 78 Ga. 5, 2 S. E. 695; Carswell v. Eovett, 80
Ga. 36, 42, 4 S. E. 866.
But a deed in trust for a woman for life free from marital
rights of husband and the remainder to go to her children
and if none to grantor's heirs was not executed by the
Married Woman's Act of 1866 for something remained to
be done by the trustee. Riggins v. Adair, 105 Ga. 727, 730,
31 S. E. 743.
Illustration of Executory Trusts. — The following cases are
illustrations of executory trusts. Middlebrooks & Co. v.
Ferguson, 126 Ga. 232, 55 S. E. 34; McLain v. Rabon, 142
Ga. 163, 82 S. E. 544; Moore v. Sinnott, 117 Ga. 1010, 44 S.
E. 810; Thomas & Co. v. Crawford, 57 Ga. 212, 213; Mun-
ford v. Peoples, 152 Ga. 31, 108 S. E. 454.
Same — Unborn Children. — Where one conveys in trust for
his son and wife and any children they may have, the trust
is executory because of the unborn children. It being
executory as to the children, it can not be set aside and the
property restored even though none of the other beneficiaries
have any of the disabilities named in § 3729 to justify the
sustaining of a trust. Leavitt v. Eeavitt, 149 Ga. 601, 101
S. E. 670.
Where cestui que trustent had a life estate with remainder
to her children, was still living, was of the age of 25 years
and married, even though it does not appear whether she
had children living, possibility not being extinct, the trust
was executory for something remained to be done and a
judgment against the trustee was valid. Cabot v. Arm-
strong, 100 Ga. 438, 28 S. E. 123.
Minors — Rule before Code. — See 12 Enc. Dig. 335; 11 Enc.
Dig. 183.
Under the English statute of uses, prior to our first
Code (taking effect January 1, 1863), trusts were declared
to be executed although the beneficiaries were minors.
Jordon v. Thornton, 7 Ga. 517; Pope v. Tucker, 23 Ga. 484;
[ 1059 ]
§ 3737
CREATION AND NATURE OF TRUST ESTATES
§ 3739
Bowman v. Long, 26 Ga. 142; Walker v. Watson, 32 Ga.
264; Milledge v. Bryan, 49 Ga. 397; Wright v. Hill, 140 Ga.
554, 563, 79 S. E. 546.
Same — Effect of Code. — In Askew v. Patterson, 53 Ga.
209, the language of this and the following section was
treated as so far making a difference that title might be
held by a trustee for a minor, and would not pass to him
until he became of age. See Knorr v. Raymond, 73 Ga.
749; Wright v. Hill, 140 Ga. 554, 563, 79 S. E. 546; Citing
Maxwell v. Hoppie, 70 Ga. 152; Johnson v. Cook, 122 Ga.
524, 50 S. E- 367; Parker v. Smith, 140 Ga. 789, 80 S. E. 12;
Smith v. Frost, 144 Ga. 115, 86 S. E- 235.
Same — Same — Majority Executes as to that Person. —
Upon majority of a beneficiary, the statute of uses, having
kept quiet pending the minority made exceptional by the
code, comes to the front, and sternly transmutes the trust
estate, as to such beneficiary, into legal remainder. Wright
V. Hill, 140 Ga. 554, 564, 79 S. E- 546; Whiddon v. Whiddon,
148 Ga. 255, 96 S. E. 431; Gray v. Obear, 54 Ga. 231; Fleck
v. Ellis, 144 Ga. 732, 87 S. E. 1055.
§ 3737. (§ 3157.) Executed and executory.—
In an executed trust for the benefit of a person
capable of taking and managing property in his
own right, the legal title is merged immedi-
ately into the equitable interest, and the perfect
title vests in the beneficiary according to the
terms and limitations of the trust.
Cross References. — For a further treatment of this sub-
ject, see 11 Cum. 182, 185; 12 Enc. Dig. 335; 340. As
to the effect of the merger of two estates, see § 3682. For
a provision for the execution of trusts in certain instances,
see § 3729. As to the execution of trusts deeds for im-
provements in certain instances, see § 3792. As to how
title vests upon termination of estate, see § 3795.
Editor's Note — Refer to the Editor's Note under § 3736.
Operation of Section. — In this State, a trust estate can
not be created in property for the benefit of persons sui
juris. In such a case, the statute of uses immediately
transfers the legal estate to the usee, and no trust is cre-
ated, although express words of trust are used. So absolute
is the statute that it will operate upon all conveyances at-
tempting to set up such a trust, although it be the plain
intention of the settler that the estate should vest and
remain in the trustee named; for intention of the citizen
can not control express enactments of the legislature or
positive rules of property. Gray v. Obear, 54 Ga. 231, 235;
Banks v. Sloat, etc., Co., 69 Ga. 330; Kile v. Fleming, 78
Ga. 1; Han-old, etc., Co. v. Westbrook, 78 Ga. 5, 2 S.
E. 695; Parrott v. Dyer, 105 Ga. 93, 31 S. E. 417; Brantley
v. Porter, 111 Ga. 886, 36 S. E- 970; Fleming v. Hughes, 99
Ga. 444, 27 S. E. 791, and cases cited. Thompson v. Sand-
ers, 118 Ga. 928, 930, 45 S. E. 715. See also Armour Fertilizer
Works v. Eacy, 146 Ga. 196, 91 S. E- 12; Jackson v. Jack-
son, 150 Ga. 544, 104 S. E. 236.
See note under § 3729.
Section Refers to Mental Capacity. — "The words, 'capable
of taking and managing property,' relate to the mental and
not to the physical capacity; for whatever may be the
physical condition of a cestui que trust, if he labor under
no mental infirmity which prevents the management and
control of his estate, a trust in favor of such a person is,
nevertheless, executed." Sargent v. Burdett, 96 Ga. Ill,
118, 22 S. E- 667.
Charitable trusts are not within the statute of uses (27
Henry VIII.) so as to merge the legal title into the equit-
able estate. Such trusts are, by their very nature, con-
tinuing, executory trusts. Beckwith v. Rector, 69 Ga. 564.
See 3 Enc. Dig. 82; 3 Cum. Dig. 582.
Executed Trusts — After Acquired Title. — Where a person
conveys property to which he has no title but later gets
title, it vests in the grantee immediately under this sec-
tion. Hunter v. State, 7 Ga. App. 668, 67 S. E. 894. So
where father conveys land to son and son takes possession
and on the faith of the gift makes valuable improvements,
the father later acquiring title, title goes to son and not a
subsequent grantee of father's. Hardway v. Sneadley, 119
Ga. 264, 46 S. E. 96.
Same — Payment of Purchase Price. — Where vendee pays
entire purchase price, there remaining nothing else for him
to do, the bond for title passes title to him. Pitts v. Mc-
Whorter, 3 Ga. 5.
Same — Trust to Secure Debt — Payment.— Where a deed
stated that it was for the purpose of placing in trust prop-
erty to secure a note, the payment of that note would
execute the trust and title would revest under this sec-
tion. Ward v. Eord, 100 Ga. 407, 28 S. E- 446; Ala. Gold
Eife Ins. Co. v. Garmany, 74 Ga. 51.
Same — Minors Attaining Majority. — See § 3729.
When minor children became of age, the trust created
by the deed became executed under § 3736 and the legal
title to their respective interests in the property vested in
them immediately under this section. Glover v. Stamps, 73
Ga. 209; Knorr v. Raymond, 73 Ga. 749; Parrott v. Dyer,
105 Ga. 93, 96, 31 S. E. 417; Thompson v. Sanders, 118 Ga.
928, 930, 45 S. E. 715; Gray v. Obear, 54 Ga. 231, 235; Banks
v. Sloat, 69 Ga. 330; Kile v. Fleming, 78 Ga. 1; Harrold v.
Westbrook, 78 Ga. 5, 2 S. E. 695; Parrott v. Dyer, 105 Ga.
93, 31 S. E. 417; Brantley v. Porter, 111 Ga. 886, 36 S. E\
170; Fleming v. Hughes, 99 Ga. 444, 27 S. E. 791, and cases
cited? Wright v. Hill, 140 Ga. 567, 79 S. E. 546; Armour
Fertilizer Works v. Eacy, 146 Ga. 196 (2), 91 S. E. 12;
Tester v. Stephens, 113 Ga. 495, 499, 39 S. E. 109. And see
cases in which realty, or realty and personalty, was devised
and bequeathed: Bowman v. Eong, 26 Ga. 142, 147; De
Vaughn v. Hays, 140 Ga. 208, 78 S. E. 844. Munford v.
Peeples, 152 Ga. 31, 43, 108 S. E. 454.
Equity Will Give Possession. — One may invoke the aid
of a court of equity to put him in possession when the
trust becomes executed. Knight v. Knight, 75 Ga. 386.
If the trust be executed there is no need of any equitable
proceeding or special statutory remedy. An ordinary judg-
ment at law will sell the corpus of the estate if the trust
be executed; it requires an equitable proceeding, however,
either at law, or in equity to subject either the income or
the corpus of an executory trust. Moore, etc., Co. v.
Eampkin, 63 Ga. 748, 752.
§ 3738. (§ 3158.) Use upon use.— The techni-
cal rule that a trust can not be limited on a
trust, and that consequently only the first trust
is executed, is abolished.
See the Editor's Note under § 3736.
"Among other changes which have been made by legis-
lative acts in this State may be mentioned that the old de-
vice for avoiding the effect of the statute of uses by limit-
ing a trust upon a trust, and then declaring only the first
trust to be executed, has been abolished." Wright v. Hill,
140 Ga. 554, 565, 79 S. E. 546.
§ 3739. (§ 3159.) Implied trusts.— Trusts are
implied —
An action brought under this section to have title decreed
to owner because of the implied trust is not an action
"respecting the title to land" so that it must be brought
in county where land lies. Martin v. Gaissert, 134 Ga. 34,
67 S. E. 536.
1. Whenever the legal title is in one person,
but the beneficial interest, either from the pay-
ment of the purchase-money or other circum-
stances, is either wholly or partially in another.
Cross References. — For a comprehensive treatment of
implied trusts, see 11 Cum. Dig. 175 et seq. ; 12 Enc Dig.
320 et seq. For a definition of resulting trusts, see § 3735.
As to when courts will declare one a trustee because oi
fraud, see § 3780. As to when a resulting trust between
near relatives may be shown to rebut gift, see § 3740. As
to donee of gift for illegal purpose is trustee for donor, see
§ 4153.
Money Must Be Paid at or before Purchase. — "A result-
ing trust which arises solely from the payment of the pur-
chase-price is not created, unless the purchase-money is
paid either before or at the time of the purchase. Trusts
implied from the payment of the purchase-money or a part
thereof must result, if at all, at the time of the execution
of the conveyance." Hall v. Edwards, 140 Ga. 765, 767, 79
S. E. 852; Tanner v. Hinson, 155 Ga. 838, 850, 118 S. E.
680.
Money Must Be Paid as Own — Loan Insufficient. — "The
person in whose favor a trust is claimed to result must pay
the purchase-money as his own; if he merely advances it as
a loan, no trust will result." So, while it is true that M.
did retain the physical custody of the policy, and advanced
the money with which to pay the premiums, yet these
premiums were charged against the insured on his general
'.account with that firm and no implied trust was created
under this section. The mere physical custody of the
policy would not, of itself create a trust. Johnston v.
Coney, 120 Ga. 767, 776, 48 S. E. 373.
Payment in Services Sufficient. — Where X. and Y. bought
land together, X. paying his part in certain services, but the
title was taken in Y. for a special purpose, an implied trust
existed in favor of X. under this section. Swift v. Nervins,
138 Ga. 229, 75 S. E- 8.
[ 1060 ]
§ 3739
CREATION AND NATURE OF TRUST ESTATES
§ 3739
Must Not Be Made as Gift. — Where a husband took the
wife's distributive share and applied it to buying land from
her father's estate with her full knowledge and consent,
not as her agent, but for himself, borrowing remainder of
money to finish paying for it, taking title in his own name,
no implied trust as to a part of the land will be implied in
fa.vor of the wife under this section. It will be treated as
a gift. Stokes v. Clark, 131 Ga. 583, 62 £. E. 1028.
Substitution of Own Funds for Those Received Imma-
terial.— Where a trust would be implied from payment of
the purchase-price of land with money furnished by an-
other person, a trust will be implied if, after receiving the
money to buy the land, the recipient uses the money for
other purposes, and, substituting his own money for that
furnished to him, pays , for the land, intending to make the
payment for the other person. Banks v. Bradwell, 140 Ga.
640, 79 S. E. 572.
Defrauding Joint Purchaser. — Where lands are purchased
by a mother and son, each paying half of the purchase -
money under an agreement between them that the son shall
represent the mother in closing the contract of purchase,
and take a deed to them jointly, and the son procures a
deed to the land but causes it to be made to himself alone,
an implied trust will arise in favor of the mother to an un-
divided one-half interest in the land. Pound v. Smith, 146
Ga. 431 (4), 91 S. E- 405; Harris v. Harris, 154 Ga. 271, 114
S. E- 333; Jenkins v. Georgia Inv. Co., 149 Ga. 475, 100 S.
E- 635.
Agent, Guardian, etc., Investing or Appropriating Funds.
— Where funds are given to agent with which to buy prop-
erty and he buys in his own name, or where he invests
funds of principal, whether principal or profits, a resulting
trust is created. Stover v. Atlantic Ice, etc., Corp., 154 Ga.
228, 113 S. E. 802; Pound v. Smith, 146 Ga. 431, 91 S. E. 405;
Wilder v. Wilder, 138 Ga. 573, 75 S. E. 654; Alexander v.
Alexander, 46 Ga. 284; Weldon v. Weldon, 152 Ga. 550, 110
S. E. 273; Bailey -v. Layfield, 157 Ga. 546, 122 S. E. 193;
Manning v. Manning, 135 Ga. 597, 69 S. E- 1126; Dodd &
Co. v. Bond, 88 Ga. 355, 358, 14 S. E. 581.
Where Administrators Purchase at Own Sale. — In Candler
v. Clarke, 90 Ga. 550, 554, 16 S. E. 645, the court said:
"Administrators are prohibited from purchasing, either di-
rectly or indirectly, at their own sales, property of the in-
testate's estate; and such purchases are voidable at the
election of the heirs, if they move within a reasonable time.
Shine v. Redwine, 30 Ga. 792; Grubbs v. McGlawn, 39 Ga.
674; Alexander v. Alexander, 46 Ga. 284." See also, Ridge-
way v. Ridgeway, 84 Ga. 25, 33, 10 S. E. 495; Willis v.
Foster, 65 Ga. 82.
Where Administrator Spends Funds on Individual Prop-
erty.— Where an administrator spends a part of the trust
funds in improving individual property, agreeing with cestui
qui trusts to repay same, a person accepting property as
security for a debt of owner with notice takes the property
bound by the trust under this section. Morgan v. Mar-
shall, 62 Ga. 401.
Where Bank Holds Funds Assigned to Another. — Where
X assigned certain funds to Y bank and then X deposited
the funds in S bank, S bank having notice of the assign-
ment, S bank holds the funds in trust for Y bank under
the principles of this section. First Nat'l. Bank v. Citizens
Bank, 150 Ga. 601, 104 S. E. 426.
Agreement to Hold in Trust. — Where an attorney pur-
chases his clients lands and makes a deed to two sons so
that they may sell a part of the land to reimburse the attorney
and they agree that the property shall be held for the client
and his entire family, to be distributed in a certain manner
at client's death, an implied trust is created in the sons
for the family under this section. Holmes v. Holmes, 106
Ga. 858, 33 S. E. 216; Gillispie v. Gillispie, 150 Ga. 106, 102
S. E. 824. See also, Cook v. Powell, 160 Ga. 831, 129 S. E.
546.
Where Part of Partners Take Title. — Where land was
bought for a firm, paid for with the money of the firm, and
the - title conveyed to two of the members of for the firm ;
an implied trust arose in favor of such firm, the members
were the equitable owners and tenants in common, and
could mortgage the land. Cottle v. Harrold, etc., Co., 72
Ga. 830.
Purchase with Wife's Property — Prior to Married Wo-
man's Act. — Where a father, before the Married Woman's
Act, takes the property of the wife which she inherited from
her father in possession, and later buys other property
with a part of it, there is no implied trust in favor of her
children for they are not heirs to the ' property, first be-
cause of the marital rights and second, because at this
time children did not inherit equally with father, he took
first. Smith v. Williams, 89 Ga. 9, 15 S. E. 130.
Same — Since Act. — Where a husband purchases property
at the request and direction of his wife, as a home for her,
with money which is her separate estate, and takes the
title in his own name, but recognizes, until his death the
property so purchased as that of his wife, he will be deemed
to have held it in trust for her in the absence of direct
evidence showing that the wife intended to make a gift or
lend the money to the husband. Hawkins v. Hawkins, 150
Ga. 61, 102 S. E- 431. See also, Tamer v. Henson, 155 Ga.
838, 850, 118 S. E. 680.
Gift to Wife Revoked on Adultery — Resulting Trust Im-
material.— Where a gift was made to a wife of property by
husband and it was revoked upon grounds of adultery and
elopement, there is no necessity to consider whether a re-
sulting trust arose because it was bought with husband's
money upon understanding that the property be used for
family. Evans v. Evans, 118 Ga. 890, 45 S. E- 612.
Pleading — Sufficiency of Allegation. — Where petitioner al-
leged that she believed certain money which she turned
over to the alleged trustee was invested in real estate, the
essentials of a resulting trust are not alleged, there being
no specific allegation that the petitioner's earning actually
constituted the purchase-money, or any part thereof, of the
real estate referred to. Mock v. Neffler, 148 Ga. 25, 95 S-
E. 673.
Beneficiary Competent Witness. — Where one pays the
purchase-money on a verbal contract and no deed is given,
he is a competent witness to same, establishing an implied
trust in his favor under this section where the property
is levied qn by a third person for the debts of the grantor
or trustee. Johnson v. McComb, 49 Ga. 124.
Other Circumstances. — Resulting trusts not only arise
from the payment of the purchase-money, in which case
the money must be paid before or at the time of the pur-
chase, but may arise from other circumstances, under this
section. Tanner v. Hinson, 155 Ga. 838, 850, 118 S. E. 680.
Same — Title Held in Trust by Lender of Purchase-
Money. — Where one bids off a tract of land at judicial sale,
pays a small part of the purchase-money, and borrows from
another a sum sufficient to pay the balance of the pur-
chase-money, under an agreement that the borrower is to
deposit with the lender certain cotton warehouse receipts,
and that the deed to the property is to be made to the lender
to secure such loan, all of which is done, and the lender
takes possession of the property, an implied trust arises in
favor of the borrower. Stern v. Howell, 160 Ga. 261, 127
S. E. 776.
Where one buys a house and lot, title to which is in the
wife of another, and in which the husband of such wife has
an equal interest with her, delivers property and notes in
payment of the interest of the husband in the property, and
borrows from another a sum with which to pay the balance
of the purchase-price, under an agreement that the wife is
to make the title directly to the lender to secure the loan,
which is done, and the proceeds of the loan are used in
paying the wife for the property, and the lender takes pos-
session of the property, the lender holds the property under
an implied trust in favor of the borrower; and upon pay-
ment by the former of the loan to the lender, the former
would be entitled to have a conveyance of the property
from the lender. Stern v. Howell, 160 Ga. 261, 127 S. E.
776.
2. Where, from any fraud, one person
obtains the title to property which rightly be-
longs to another.
Cross References.— For a further treatment of trusts im-
plied from fraud, see 11 Cum. Dig. 178; 12 Enc. Dig. 324.
As to effect of a purchase from a trustee with a notice of
trust, see § 3762. For a statutory illustration of implied
trust from the perpetration of a fraud, see § 3780. For a
definition of implied trusts, see § 3732.
When Trust Arises Ex Maleficio Under Section. — The
second paragraph of this section expressly recognizes trusts
which arise ex maleficio. Such a trust "occurs whenever a
person acquires the legal title to land or other property by
means of an intentionally false and fraudulent verbal prom-
ise to hold the same for a certain specified purpose, — as, for
example, a promise to convey the land to a designated in-
dividual, or to reconvey it to the grantor, and the like. —
and having thus fraudulently obtained the title, he retains,
uses, and claims the property as absolutely his own, so
that the whole transaction by means of which the owner-
ship is obtained is in fact a scheme of actual deceit. Equity
regards such a person as holding the property charged with
a constructive trust, and will compel him to fulfill the trust
by conveying according to his engagement." Brown v.
Doane, 86 Ga. 32, 12 S. E. 179; Jenkins v. Lane, 154 Ga.
454, 477, 115 S. E. 126.
Sufficiency of Fraud to Constitute. — In order that the
[ 1061 ]
§ 3739
CREATION AND NATURE OF TRUST ESTATES
§ 3740
doctrine of trusts ex maleficio with respect to land may be
enforced under any circumstances, there must be some-
thing more than a mere verbal promise, however unequivo-
cal, otherwise the statute of frauds would be virtually
abrogated^ there must be an element of positive fraud ac-
companying the promise, and by means of which the ac-
quisition of the legal title is wrongfully consummated.
Brown v. Doane, 86 Ga. 32, 38, 12 S. E- 179.
Where for any reason the legal title to property is in one
person under such circumstances as to make it inequitable
for him to have the beneficial interest, equity will imply a
trust in favor of the person entitled to the beneficial in-
terest. But an absolute gift will not be cut down by im-
plication into a trust merely because the donor hoped and
believed at the time the gift was made that the donee would
share the beneficial interest of the property with him or
with a third person. Vickers v. Vickers, 133 Ga. 383, 384,
65 S. E- 885.
Necessity of Writing. — There is no law which requires
a fraudulent undertaking to be manifested by writing. Cas-
sels v. Finn, 122 Ga. 33, 34, 49 S. E. 749.
Breach of Confidential Relationship. — Where the com-
plainant alleges that one who had committed a crime and
was leaving the state went to another to get him to advance
money, take his property and dispose of it, paying his debts
and returning balance to owner or family, and a deed is
executed to him for the purpose, and he takes the land as
his own, refusing to execute agreement, a good case mak-
ing an implied trust under this section is set out. Adams
v. Jones, 39 Ga. 510.
Same — Artifice Preventing another from Purchasing. —
Where X. agrees to go by for Y. and her friend and ac-
company them to a public sale, but later tells the friend
that he will purchase the land for her instead of going by
after her, he holds the land in trust for her under this sec-
tion, where he actually bought it, for he is guilty of artifice
trying to deceive. Rives v. Lawrence, 41 Ga. 283.
Where a purchaser at an auction sale assumed to act as
agent, or sustained a confidential relation to the owner of
the land, equity will impress, for the latter's benefit, a
constructive trust on the land, on tender of the purchase-
money. Carr v. Graham, 128 Ga. 622, 57 S. E. 875.
Where one abandons negotiations with owner upon faith
of a parol agreement of another to purchase and then con-
vey to him, no implied trust is created by this section.
Lyons v. Bass, 108 Ga. 573, 34 S. E. 721.
Where X agreed to purchase property with his own
money, and when Y payed to him the purchase-money with
interest, X was to have no further right in the property
but should relinquish it to Y, and he made the purchase
but refused to accept the payment from Y, no implied trust
was created under this section in favor of Y. Wood v.
Rice, 143 Ga. 647, 85 S. E- 838.
Executors, Administrators, and Guardians buying at own
sale, see note under § 3739, par. 1.
Obtaining Title Through Deceit. — If by a fraudulent oral
promise which he intends, at the time of making it, after-
wards to violate, the vendee of two contiguous parcels of
land which he has contracted for by separate and distinct
contract, induces the vendor to convey to him both parcels
by one and the same absolute unconditional deed, he pay-
ing for one parcel, but not for the other, equity by reason
of his fraud will fasten upon him a constructive trust m
behalf of the vendor as to the parcel not paid for, although
the two parcels are not described in the deed as several
tracts but both together are treated as one tract. Brown v.
Doane, 86 Ga. 32, 12 S. E- 179.
Where a father represents to children that title is being
made by them to him for the purpose of consummating a
sale, and no sale is made; the father claiming the land as
his own, he is deemed to hold the land under an implied
trust under this section. Summerour v. Summerour, 148
Ga. 499, 97 S. E. 71.
Where Fraud Prevents Making of Will. — If from the
nature of the transaction it be manifest that it was the in-
tention of S. to make a will devising her property to plain-
tiffs, as alleged in the petition, and she was prevented from
so doing by the fraud of her husband, whereby upon her de-
cease he became vested with the absolute title to all her
property as heir at law, equity will imply a trust. Cassels
v. Finn, 122 Ga. 33, 34, 49 S. E. 749.
3. Where from the nature of the transaction,
it is manifest that it was the intention of the
parties that the person taking the legal title shall
have no beneficial interest.
For further treatment as to when trust implied from
nature of transaction, see 11 Cum. Dig. 180; 12 Fnc. Dig.
326.
Gift to Husband and Wife.— Where land was voluntarily
conveyed to a wife and husband by her father, the husband
later becoming a bankrupt, there being no circumstances
having the effect, as between the husband and the wife, of
preventing a gift to the husband by her father, the interest
vested in the husband was not charged with an implied
trust in favor of the wife under this section. Hall v. Ed-
wards, 140 Ga. 765, 79 S. F. 852; White v. Daniel, 261
Fed. 70.
Husband Using Wife's Money. — Where a husband bought
land and paid his vendor, as a part of the purchase price
thereof, $500 of his wife's money, and from the facts and
circumstances of the transaction it is fairly inferable that
it was the intention of all parties that the husband and
wife should become the joint purchasers of the property,
each to own an interest in proportion to the amount paid
by them respectively, the mere fact that the legal title
was made to the husband will not operate to defeat the
wife's equitable title. As between the parties, a trust in
her favor will be implied. Brooks v. Fowler, 82 Ga. 329, 9
S. F. 1089.
4. Where a trust is expressly created, but no
uses are declared, or are ineffectually declared,
or extend only to a part of the estate, or fail
from any cause, a resulting trust is implied for
the benefit of the grantor, or testator, or his
heirs.
Cross References. — For a further treatment of remitting
trusts because of no use declared, see 12 Fnc. Dig. 329; 11
Cum. Dig. 181. As to definition of remitting trust, see §
3735. As to when a donee is considered trustee because of
purpose of gift being illegal or failing for any other cause,
see § 4153.
Failure of Church to Use Property. — The fact that the
church had been inactive for several years was not suffi-
cient to show a failure of the trust so that the property
would revert. Huger v. Protestant Fpiscopal Church, 137
Ga. 205, 73 S. F. "185.
Failure to Name Beneficiary. — A conveyance by a hus-
band and wife to the husband and others, the vendees be-
ing described as trustees but no beneficiary named and the
property not made to them as trustees, does not show that
it was intended that the vendees should have no beneficial
interest so as to create a trust under this section. An-
drews v. Atlanta Real Estate Co., 92 Ga. 260, 18 S. F. 548.
§ 3740. (§ 3160.) Between near relatives gift
presumed. — As between husband and wife,
parent and child, and brothers and sisters, pay-
ment of purchase-money by one, and causing
the conveyance to be made to the other, will be
presumed to be a gift; but a resulting trust in
favor of the one paying the money may be
shown and the presumption rebutted.
Cross References. — -As to further treatment of payment of
purchase-money by near relative, see 11 Fnc. Dig. 177; 12
Fnc. Dig. 321; 6 Cum. Dig. 656 et seq.; 6 Fnc. Dig. 769 et
seq. ; 9 Cum. Dig. 176; 10 Fnc. Dig. 72. As to definition cf
resulting trust, see § 3735. As to when a trust will be im-
plied, see § 3739. As to a presumption of gift between
parent and child, see §§ 4150, 4151.
Case from Which Section Codified. — -"As between hus-
band and wife, parent an child, brother and brother, or
sister and sister, payment of the purchase money of land
by one of the correlatives, and causing the conveyance to
be made to the other, will generally suggest an intention
to make a gift. This may or may not prevent a resulting
trust, according to the circumstances of the particular
transaction. Certainly, a trust for the benefit of the one
paying the money does not necessarily result." Printup v.
Patton, 91 Ga. 422, 434, 18 S. E. 311.
Where Parol Agreement Rebutting. — If a mother buys
lands with her own funds and causes the title to be made
to her son under an understanding and agreement that the
property is to be hers, and that the son will make to her
such conveyance as she may require, a trust in favor of the
mother will be implied. Wilder v. Wilder, 138 Ga. 573, 75
S. E. 654.
Where Husband Has Conveyance Made to Wife. — Where
a husband pays his own money in the purchase of land and
causes the conveyance to be made to his wife, the trans-
action will be presumed to be a gift by him to her, in the
absence of evidence tending to show the creation of a re-
[ 1062 ]
§ 3741
CREATION AND NATURE OF TRUST ESTATES
§ 3742
suiting trust. Kimbrough v. Kimbrough, 99 Ga. 134, 25 S.
E- 176; Jackson v. Williams, 129 Ga. 716, 59 S. E. 776;
Stonecipher v. Kear, 131 Ga. 688, 689, 63 S. E. 215; Vickers
v. Vickers, 133 Ga. 383, 65 S. E. 885. In order to rebut the
presumption of a gift in such cases, the proof must be clear
and convincing, although it may be by parol evidence.
Browning v. Barber, 154 Ga. 221, 113 S. E- 797; Jackson v.
Jackson, 150 Ga. 544, 104 S. E. 236.
Where Wife Pays Remainder of Price and Husband
Conveyed to Her. — -Where the court charged that if the
husband conveyed property to the wife and she paid the re-
mainder of the purchase price without anything showing
that it was for the purpose of securing the part paid, a
presumption arises that it was a gift which may be re-
butted; there was an application of this section and the
principle announced in Gould v. Glass, 120 Ga. 50, 57, 47 S.
E. 505. Barnett v. Strain, 151 Ga. 553, 107 S. E- 530.
Where mother's funds were used in buying property un-
der agreement that the son should convey the property to
her upon her request, such circumstances are shown that
the presumption of a gift is rebutted under this section and
a resulting trust is created. Gillespie v. Gillespie, 150 Ga.
106, 102 S. E. 824.
When Error to Charge Section. — It is error to charge this
section where the money was paid by the husband, J, to
the grantor in the deed, and the deed made to B and J. the
name of Mrs. J nowhere appearing in the deed, for nothing
appeared from the deed to show that she had an interest in
the land, and therefore there was nothing appearing in the
deed from which a gift to her could be presumed. Jenkins
v. Flournoy, 157 Ga. 618, 624, 122 S. E- 309.
Husband's Acquisition without Evidence of Gift. — When-
ever a husband acquires the separate property of his wife,
with or without her consent, he must be deemed to hold it
in trust for her benefit, in the absence of any direct evi-
dence that she intended to make a gift of it to him. Bar-
ber v. Barber, 125 Ga. 226, 53 S. E. 1017.
§ 3741. (§ 3161.) Parol evidence. — In all
cases where a trust is sought to be implied, the
court may hear parol evidence of the nature of
the transaction, or the circumstances, or con-
duct of the parties, either to imply or rebut a
trust.
Cross References. — For a further treatment of parol evi-
dence to prove an implied trust, see 9 Cum. Dig. 220; 10
Enc. Dig. 118. As to the admission of parol evidence to
effect writing generally, see § 5754. As to § 3258, reducing
:leed to mortgage by parol, not being applicable to implied
trusts, see § 3258 and note.
General Rule. — In all cases where a trust is sought to be
implied, parol evidence of the nature of the transaction, or
the circumstances, or the conduct of the parties, is ad-
missible either to imply or rebut a trust. Stern v. Howell,
160 Ga. 261, 127 S. E. 776. See also Cook v. Powell, 160 Ga.
331, 129 S. E. 546.
Implied Trusts Not within Statute of Frauds.— Implied
trusts are not within the statute of frauds, and the Courts
will hear parol evidence, showing the facts from which
they are sought to be implied. Alexander v. Alexander, 46
Ga. 284; Jackson v. Jackson, 150 Ga. 544, 104 S. E. 236.
"While an express trust can only be shown by a writing,
in implied trust may rest upon an express parol agreement,
fraudulently made, by which a person acquires title to
property of another; and in such case the express promise
or agreement may be proved by parol to raise, not an ex-
press, but an implied trust." Jenkins v. Lane, 154 Ga. 454,
477, 115 S. E. 126. See also, Stern v. Howell, 160 Ga. 261,
L27 S. E. 776.
Proof of Administrator and Trust Relationship. — It was
not necessary to produce P's letters of administration at
ill, but parol evidence was legally admitted to show that
le held the money of this woman and these minors, and had
put it in this house and lot for their benefit, and to give
them a home in lieu of that their husband father left them,
md which he had sold. To trace such funds and subject
the property into which it passes is peculiarly the province
}f equity, and proof by parol is indispensable to the end in
iriew and the relief sought. Morgan v. Marshall, 62 Ga.
Wl, 405.
There was no error in any of the rulings permitting
parol evidence to show that though the naked legal title
to this land was in the administrator, it was in fact the
property of the plaintiffs, and that the administrator had
bought it at his own sale for their use. His satements to that
effect — his giving it in for taxes as the property of the
minors— are each legitimate acts, going to show, that while
the legal title was in him, he was, in fact, an implied trus-
tee for them. Alexander v. Alexander, 46 Ga. 284, 291.
Circumstances Justifying Admission. — It may be shown
by parol, under this section, that two sons agreed to take
legal title to land belonging to father for purpose of selling
a part to pay off indebtedness against whole, and agreed to
then hold remainder in trust for their family to be dis-
tributed in a certain manner upon father's death; for this
is an attempt to set up an implied trust. Holmes v. Hol-
mes, 106 Ga. 858, 33 S. E- 216.
Where it is shown J committed a crime, and, being de-
sirous of leaving the state, obtains money from Y, makes
deed to property upon Y promising to sell, pay debts, ana
turn remainder over to family, an implied trust is at-
tempted to be shown and this may be done by parol un-
der this section. Adams v. Jones, 39 Ga. 510.
It may be shown by parol under this section that X
bought land from Y and paid price, no deed being exe-
cuted, but later Y conveys to S at X's request, for this is
proving an implied trust. Johnson v. McComb, 49 Ga. 124.
Parol evidence is admissible under this section to show
that the owner of the remainder delivered a deed to the
life tenant so that life tenant would convey a deed to his
minor daughter, for this was an attempt to establish an
implied trust in favor of the minor daughter. Lawson v.
Prosser, 146 Ga. 421, 91 S. E. 469.
Parol evidence may be introduced under this section to
show that owner deeded land to grantee for the purpose of
grantee raising money to pay over to grantor, for this is
an attempt to establish an implied trust. Simpson Gro.
Co. v. Knight, 148 Ga. 410, 96 S. E. 872.
Where parent's money was used in buying property which
was taken in name of son, parol evidence may be intro-
duced to imply or rebut the trust. Wilder v. Wilder, 138
Ga. 573, 75 S. E. 654.
Where it is sought to show that X., knowing that Y.
expects to attend sale, promised to accompany her and
her relative to the place, but later tells relative that he will
buy it in for her, and he does buy it, an attempt is made to
establish an implied trust and parol evidence is admissible
under this section. Rives v. Lawrence, 41 Ga. 283.
Cited and Applied in Wilder v. Wilder, 138 Ga. 573, 75 S.
E. 654.
§ 3742. (§ 3162.) Precatory words. — Preca-
tory or recommendatory words will create a
trust if they are sufficiently imperative to show
that it is not left discretionary with the party
to act or not, and if the subject-matter of the
trust is denned with sufficient certainty, and if
the object is also certainly defined, and the
mode in which the trust is to be executed.
For a further treatment of precatory trusts, see 11 Cum.
Dig. 181; 12 Enc. Dig. 331. As to the definition of trusts,
see § 3728.
"Allow" Used as Precatory Word. — Where a testator de-
vised to his son a plantation in fee, and after bequeathing a
negro woman to his wife during her life, used the following
words: "and I also allow my son to give her a support off
my plantation during her lifetime," the word "allow" was
used as expressive of the testator's intention, that the son
should support the wife during her life, off the plantation,
and that he took the same under the will subject to that
charge, which a court of equity will enforce. Hunter v.
Stembridge, 12 Ga. 192; Maxwell v. Hoppie, 70 Ga. 152,
159.
"Do Receive a Support" Not Precatory. — The words "I
further will that my granddaughter do receive a support"
are not precatory or recommendatory. Bell v. Watkins,
104 Ga. 345, 30 S. E. 756.
"For Her to Give" Not Precatory — Too Much Discretion.
— A testator devised his property as follows: I will to my
wife, R, for her to give to our children as they arrive of
age as she may be able, keeping a memorandum so as each
child shall be equal. It was held, that "the words "for
her to give,' etc., in the will, construed in connection with
the rest of the item, are not such precatory or recommenda-
tory words as will create a trust under this section. It
is left discretionary with her to give off to the children as
she is able, and it is not declared what she shall give off,
whether the entire share of each child or only a part. Had
the intention been apparent that the wife should hold or
use the property for the benefit of the children during
minority, a trust would have been created, although the
words were not mandatory in form." Glore v. Scroggins,
124 Ga. 922, 926, 53 S. E. 690.
Effect of Gift without Limitation. — The words, I give,
to my beloved wife, my wagons, buggy, and also my house -
[ 1063 ]
§ 3743
APPOINTMENT AND POWER OF TRUSTEES
§ 3744
hold and kitchen furniture, all without limitation or re-
serve, for her to do as she thinks best for herself and all
of my lawful heirs, are not sufficient precatory words to
create a trust because the wife was first given without
reserve or limitation. If the following words created such
a trust, it could not be without limitation. Wood v. Owen,
133 Ga. 751, 66 S. F. 951.
Section Not Confined to Wills — All Transactions. — This
section does not confine the rules therein prescribed to wills,
but apply them to all contracts or agreements, and other
transactions by which a trust is declared in writing. Max-
well v. Hoppie, 70 Ga. 152, 159.
Of
ARTICLE 2.
Trustees; Their Appointment, Powers,
Etc.
§ 3743. (§ 3163.) Trustees appointed, etc.—
Trustees may be appointed by the party creat-
ing the estate, and he may confer the power of
removal and appointment by deed to the bene-
ficiaries, prescribing the mode of its execution.
For a full treatment of the appointment of trustees, see
11 Cum. Dig. 188 et seq.; 12 Cum. Dig. 346 et seq. As to
trust companies becoming trustees, see § 2817.
Effect of Appointment Where No Trust Estate. — There
being no trust at the time of the grant of the order ap-
pointing the trustee, his appointment as such was in-
operative, and afforded him no authority to institute ac-
tions in such representative capacity. Smith v. Frost, 144
Ga. 115, 86 S. F. 235.
Appointment by Instrument — Husband. — The bond in this
case created a right in the husband as trustee of his wife,
and a Court of Fquity will carry out the trust. Crawford
v. Brady, 35 Ga. 184.
By Cestui Que Trust — Appointment of Husband. — Where
a deed authorized the cestui que trust, the wife, to appoint
as successor should the trusteeship become vacant, she
may appoint her husband even though the property was to
be wholly free from her husband by the terms of the deed.
Tweedy v. Urquhart, 30 Ga. 446.
Same — 'Life Tenant — Power Extinguished by Alienation.
— Where the life tenant had power to appoint trustee, the
right was extinguished by the alienation of the life estate
to the remainderman. Rosier v. Nichols, 123 Ga. 20, 50 S.
F. 988.
De Facto Trustee — Husband for Wife. — The husband may
act as trustee de facto for the wife, and the consequences
will be visited upon the cestui que trust. Boston & Gun-
by v. Cummins, 16 Ga. 102.
Municipal authorities have no authority to accept and
administer trusts. City Council v. Walton, 77 Ga. 517, 1
S. F. 214.
Successor — When Term Begins. — The trust did not de-
volve upon the persons mentioned as the trustee's succes-
sors until her death; she was, during her life, the proper
party to execute it; she never voluntarily relinquished it,
nor was she deprived of it in consequence of any abuse or
improper management; and except for such causes, no
court or other power could take it out of her hands, nor
without her consent could others be joined with her, nor
was there any necessity for their appointment to enable
them to superintend her and prevent her from abusing the
trust or wasting the property; any citizen might have in-
voked the interposition of chancery to restrain her abuse.
City Council v. Walton, 77 Ga. 517, 526, 1 S. F. 214.
Cited in Boardman v. Taylor, 66 Ga. 638, 649.
§ 3744. (§ 3164.) Proceeding at ' chambers.—
The judge of the superior court of each county
has power, either in term or at chambers, on
petition by alP the beneficiaries in the deed who
have arrived at years of discretion, and on
proper notice to the trustee if there be one re-
siding in this State, to remove and appoint
trustees, prescribing in each case such terms
and requiring such bonds as in his discretion he
may think proper, but in no case omitting to
require bond where minor beneficiaries are or
may be interested. All such bonds shall be
made payable to the ordinary of the county
where the judge requiring the same shall de-
termine, and such ordinary shall act, in relation
to taking such bonds and receiving security, as
such judge may direct. The petition, notice,
order, and other papers in such cases, if done
in vacation, shall be returned to the clerk of the
superior court, to be recorded in the book of
the minutes of said court. Acts 1853-4, p. 59;
1865-6, pp. 147, 148.
Cross References. — For a full treatment of the appoint-
ment of trustees, see 11 Cum. Dig. 188 et seq.; 12 Fnc.
Dig. 346 et seq. See also, 3 Cum. Dig. 570; 3 Fnc. Dig. 66.
As to the appointment and removal of marriage settlement
trustees, see § 3004. As to the corporate powers of trust
companies, see § 2817. As to power of judge to grant
order to sell trust property in vacation, see § 3755. As to
judge being responsible for enforcement of this law, see §
5761. As to a trust never failing because of want of trus-
tee, see § 3781. As to hearing order for new trial in vaca-
tion, see § 4852. As to necessity of proceeding by petition,
see § 5436. As to when notice is necessary under this sec-
tion, see § 5438.
Court's Discretion — Control by Appellate Court. — The Su-
preme Court has no right to control the exercise of the
judge's discretion in making the appointment, unless it is
made plainly to appear that it has been flagrantly abused.
City Council v. Walton, 77 Ga. 517, 523, 1 S. F. 214. For
further treatment, see 11 Cum. Dig. 190; 12 Fnc. Dig. 350.
Jurisdiction^ — Place of Entertaining Application. — The
judges of the superior courts of this state have power at
chambers to appoint and remove trustees; and applications
for this purpose may be entertained at any place within
their respective circuits, without reference to the residence
of the parties or the location of the property, the proceed-
ings had on such applications being always returned to the
clerk of the superior court of the proper county. Heath
v. Miller, 117 Ga. 854, 44 S. F. 13.
"In ex parte proceedings by beneficiaries praying for the
appointment of a trustee, it would seem they might be insti-
tuted in any county where any of the beneficiaries resided."
Heath v. Miller, 117 Ga. 854, 861, 44 S. F. 13.
"In proceedings to remove a trustee, as he is the defend-
ant, it would seem that the county of his residence would
be the proper county. On the other hand, as in all cases
the proceedings for appointment and removal are a part of
the muniment of title to the property, it might with great
force be maintained that they should be had in the county
where the property is located." Heath v. Miller, 117 Ga.
854, 861, 44 S. F. 13.
Same — Place of Recording. — "It is not necessary in the
present case to decide in what county the proceedings to
remove and appoint trustees should be filed if returnable in
term, or where recorded if returnable at chambers. The code
is silent on the subject, merely declaring that the petition,
etc., 'shall be returned to the clerk of the superior court,
to be recorded in the book of minutes of said court.' "
Heath v. Miller, 117 Ga. 854, 861, 44 S. F. 13.
Necessary Parties to Proceeding — Trustee. — For a fur-
ther treatment of parties, see 11 Cum. Dig. 215; 12 Fnc.
Dig. 411.
No court can remove a trustee and appoint a successor
in a proceeding to which the trustee is not a party. Boyd
v. England, 56 Ga. 599.
Same — Remainderman. — Where a trustee for a mother as
life tenant, and minor children as remaindermen, asks to be
discharged, all the minors must be represented, and in the
absence thereof, an order purporting to release the trustee,
releases him only as to the mother's life estate and the
successor can not pass title to the remainder. I^amar v.
Pearre, 82 Ga. 354, 9 S. F. 1043.
The appointment of a new trustee upon resignation of the
old, for a life tenant was not binding upon the remainder-
men under this section because they had no notice. Sim-
mons v. McKinlock, 98 Ga. 738, 26 S. F. 88.
Same — Same — Where Remaindermen Contingent.* — The re-
maindermen, "the poor children of the city," being con-
tingent both as to person and event, were not necessary
parties, and service upon them of notice of the application
for the appointment of trustee was not essential. White
v. McKeon, 92 Ga. 343, 17 S. F. 283.
Same — Same — Where, Remainder Not in Trust. — An order
granted by the chancellor at chambers on April 3, 1860,
appointing the widow of the deceased grantor as trustee in
the place of S., who had resigned as such trustee, was not
void as to a child of the wife and the grantor then in life,
although such child was not ' a party to the proceeding
wherein such order was granted, because the trustee did
not hold the remainder in trust for the children. Vernoy
v. Robinson, 133 Ga. 653, 66 S. F. 928.
[ 1064 ]
§ 3745
APPOINTMENT AND POWER OF TRUSTEES
§ 3751
Same — Service of Minors — Before Code.— "Before the
code, it was not necessary to serve the minors to bind their
equitable interests, and it was discretionary with the chan-
cellor to require them to be made formal parties. Freeman
v. Prendergast, 94 Ga. 369, 21 S. F. 837." Euquire v. Lee,
121 Ga. 624, 631, 49 S. E. 834.
Appoint in Chambers — Prior to 1854.— For a further treat-
ment, see 11 Cum. Dig. 189, 192; 3 Cum. Dig. 570; 3 Enc.
Dig. 66.
Prior to 1854, the judge of the superior court had no
power, by a proceeding in chambers, to accept the resigna-
tion of a trustee and appoint a successor. City Council v.
Walton, 77 Ga. 517, 1 S. E. 214.
Same — After Act of 1854.— There being a valid trust as to
the entire fee, the removal of the trustee created a va-
cancy which the judge of the superior court was author-
ized to fill by the appointment of a successor at chambers
under this section. Heath v. Miller, 117 Ga. 854, 860, 44 S.
E- 13; Woodberry v. Atlas Realty Co., 148 Ga. 712, 98 S. E-
472; Sparks v. Ridley, 150 Ga. 210, 103 S. F- 425. And to
do this without a plenary suit in equity. Steele v. Graves,
160 Ga. 120, 122, 127 S. F. 465.
The judges of the superior courts, of this state can do no
act in vacation nor grant any decree, except the same be
authorized by statute. They may, in term or vacation, re-
move or appoint trustees under this section. Rogers v.
Pace, 75 Ga. 436, 438.
Same — Same — Where Trust Created Before. — Where a
trust deed was executed prior to the time when the Code
went into effect, but the life tenant did not die until after
that date, leaving the remaindermen minors, the chancellor
had authority, at chambers, to appoint a trustee for said
minors, and to order a sale of the property. Askew v.
Patterson, 53 Ga. 209.
Same — Same — Upon Petition of Beneficiaries. — "The chan-
cellor could, at chambers, upon the petition of the bene-
ficiaries who had arrived at discretion, appoint a trustee."
Luquire v. Eee, 121 Ga. 624, 631, 49 S. F. 834.
Effect of Recording in Wrong County. — If the proceedings
are otherwise regular, the fact that they were recorded in
the wrong county, or were not recorded at all, would not
vitiate the judgment. Heath v. Miller, 117 Ga. 854, 44 S.
E. 13.
Renunciation of Trust Prematurely Made. — Renunciation
by the trustee made in advance of the devolution of the
trust upon them was premature. City Council v. Walton,
77 Ga. 517, 526, 1 S. E. 214. As to acceptance of trust, see
11 Cum. Dig. 191; 12 Enc. Dig. 351.
§ 3745. (§ 3165.) Court may fill vacancies of
trustees.— Whenever the office of trustee in any
incorporated company may have or shall here-
after become vacant by death, resignation, or
otherwise, and the same for any cause can not
be filled under the provisions of the charter of
incorporation, the judge of the superior, courts
of the counties or judicial districts in which
said incorporations may be situated shall have
power to fill such vacancies upon petition to
said judge of said courts, showing the circum-
stances which render the appointment of a
trustee, or trustees, necessary and proper. Acts
1865-6, p. 60.
Cited in Inquire v. Tee, 121 Ga. 624, 49 S. F- 834.
§ 3746. (§ 3166.) New assignees and trustees
may be appointed. — In all cases of assignments
for the benefit of creditors, heretofore or here-
after made, and in all cases of any trust, where
the sole or surviving trustee, or assignee, shall
have departed this life, or removed beyond the
jurisdiction of the courts of the State, the supe-
rior courts of the several counties in this State
shall have full power and authority, when sit-
ting either as a court of law or equity, upon the
petition of two or more of the parties interested
in such assignment or trust, and on such notice
as the court shall direct in a summary manner,
to appoint a new trustee, or trustees, in the
place of such deceased or non-resident trustee;
and such new trustee shall have all the au-
thority, and be subject to all the pains and
penalties of such deceased or non-resident trus-
tee, or assignee; and all laws or enactments
shall be as applicable and in as full force in re-
spect to the new, as to the old assignee or trus-
tee; and said court may in its discretion require
bond and security of such assignee or trustee.
Acts 1861, p. 32.
Cross References. — For full treatment of appointments to fill
vacancies, see 11 Cum. Dig. 189; 12 Enc. Dig. 1347. As to sub-
stitution where trustee fails to act, see § 3747. As to fill-
ing vacancies of charitable trust, see § 3778.
Appointment by Judge. — Where the trustee of a naked
trust died, the judge might appoint a successor, who could
maintain ejectment on the title. Eogan v. Goodall, 42 Ga.
95.
Power in Trustee — Failure to Exercise. — Where property
was devised to a named trustee with power to appoint his
own successor, but the trustee having died without exer-
cising this power, the judge of the superior court was au-
thorized, to appoint a trustee. White v. McKeon, 92 Ga.
343, 17 S. E. 283.
Where the trust was executed by the children reaching
majority, a judge did not have power, on the resignation of
the trustees after the death of the grantor, to appoint a
successor in the trust for the children. Milledge v. Bryan,
49 Ga. 397.
§ 3747. Trustee substituted for one failing to
act. — When there is a trustee under a deed of
trust, or a mortgage securing an issue of bonds,
and when it is necessary, to preserve said trust,
that a new trustee be appointed, or when the
trustee fails to serve or perform its duties, or
becomes incapable of so doing, the< superior
courts of the several counties in this State. shall
have full power and authority, in terrri time or
vacation, upon the petition of the grantor or
mortgagor under such deed of trust or mort-
gage, and on notice being given to said trustee
so far as practicable, and on notice being given
to the known bondholders, by registered mail,
and by publishing once a week for four weeks
in some public gazette in the county where the
petition shall be filed, of the intention to apply
to said court for the appointment of a new trustee,
to appoint a new trustee in place of such original
trustee; and upon the acceptance of such trust by
said new trustee, to be evidenced in writing, such
new trustee shall have all the authority, right, title,
and interest of the original trustee, and be sub-
ject to all the obligations arising from such
trust; and thereupon all the rights, title, and in-
terest of the original trustee shall cease. Acts
1904, p. 99.
§ 3748. Notice, how proved. — The affidavit of
any general officer of the grantor or mortgagor,
of notice to bondholders, provided in the pre-
ceding section, shall be sufficient proof of said
notice.
§ 3749. Trustees not relieved of responsibility.
— The two preceding sections do not relieve a
trustee from obligations or liabilities imposed by
law.
§ 3750. (§ 3167.) Inventory by trustees. — It
shall be the duty of all trustees, within three
months after the trust property comes into their
possession, to return to the court of ordinary
where they reside, an inventory of all the trust
property in their hands, received by them, which
shall be recorded under the same regulations as
inventories of administrators and executors.
Acts 1855-6, p. 148.
§ 3751. (§ 3168.) Returns to ordinary. — All
[ 1065 ]
§ 3752
APPOINTMENT AND POWER OF TRUSTEES
§ 3754
trustees having in their hands a pecuniary fund
as a part of the trust estate, or receiving any
sums of money as income or proceeds of such
estate, shall make returns to the ordinary, and
receive commissions on such returns, under the
same rules and regulations as are prescribed
for guardians; and such returns, when allowed
and recorded by the ordinary, shall be prima
facie evidence in their favor as to their correct-
ness; and if a trustee be dead, his representa-
tives may make his returns, as provided in case
of deceased administrators. Acts 1855-6, p. 148;
1860, p. 33.
Cross References. — For a full treatment of the returns of
a trustee to the ordinary, see 11 Cum. Dig. 208; 12 Enc.
Dig. 395. As to compensation of trustees, see § 3777. As
to return of trustees where new county created, see § 836.
As to the returns of guardians, see § 3059. As to receipt
of foreign guardian being a sufficient worker for trustee
in Georgia, see § 3118. As to duty of trustee to keep ac-
count, see § 3579. As to allowance of expenses of giving
bond of trustee out of trust estate, see § 4071.
Trustee of Slave after Emancipation. — Where one who
was guardian for a slave before emancipation continued
to hold the funds afterwards, he acted in the capacity of a
general trustee, and inasmuch as trustees are required to
make annual reports as are guardians, the ordinary was
not without jurisdiction of the returns made by such trus-
tee. Munroe v. Phillips, 64 Ga. 32.
Trustees of Charitable Trusts. — Trustees whose duty it is
to manage religious, charitable, educational, or other pub-
lic trusts are not required to make returns to the ordinary.
Ford v. Thomas, 111 Ga. 493, 502, 36 S. E- 841; Waycross
v. Waycross Savings & Trust Co., 146 Ga. 68, 90 S. E-
382.
This section applies exclusively to trustees charged with
the management of estates of which private individuals are
the beneficiaries. We do not think it was intended to em-
brace trustees, created by will or otherwise, whose duty it
is to manage religious, charitable, educational, or other
public trusts, and who, in the course of so doing, control
and manage funds. Ford v. Thomas, 111 Ga. 493, 502, 36
S. E. 841.
Returns are not conclusive against trustees in all re-
spects, but are open to explanation. See Napier v. Jones,
45 Ga. 527; Johnson, Ordinary v. McCullough et ah, 59
Ga. 213, and compare Scott v. Haddock and Wife, 11 Ga.
262; Hines and Bryan v. Mullins, etc., 25 Ga. 696; Munroe
v. Phillips, 64 Ga. 32, 39.
§ 3773 Contemplates Trustees Making Returns under This
Section. — Section 3773 contemplates trustees proper — those
in whom title is vested in trust for other persons, and
whose duty it is to make returns to the ordinary under this
section. Southern Star etc., Co. v. Cleghorn, 59 Ga. 782,
783.
§ 3752. (§ 3169.) Liability of naked trustees.—
A naked trustee, holding the title when posses-
sion of the property is with the beneficiary, is
in no way responsible for its income or pres-
ervation, except where there are beneficiaries in
remainder, or who are minors, and in such cases
he is responsible for gross neglect.
Cited in New S. Ass'n v. Gann, 101 Ga. 678, 29 S. E. 15.
§ 3753. (§ 3170.) Duty of trustees— Trustees
having possession of the trust property are bound
to ordinary diligence in the preservation and
protection of the same.
Cross References. — For a full treatment of the duty of
the trustee to conserve the estate, see 11 Enc. Dig. 195; 12
Enc. Dig. 361. As to right of action against trustee for
negligence, see § 4463. As to definition of ordinary dili-
gence, see § 3471.
Unauthorized Investments.' — On a final the
trustee must account for every dollar of with
all profits, legal or illegal, thereon; and h:- can f dis-
charge himself by showing that in good faith and with the
best of motives he had invested in property ized
by law, even though at the time it was deemed b r- lent
men a wise use of the money.
Liability for Small Profits by Following Law. — '. 3 a
result of following the law, the profits the
trustee can not be held liable under the principle of this
section for what he might otherwise have made; but if
for the purpose of increasing the profits he departs from
the law, he can expect no protection from it when loss and
disaster follow. Rogers v. Dickey, 117 Ga. 819, 822, 45 S.
E- 71.
Selling Property to Party in Failing Circumstances.— It
is the duty of the trustee to preserve and protect the trust
estate; and if he sell real estate settled in trust upon the
wife and her minor son, and take a note therefor on the
husband and his partner in failing circumstances, with no
security, the trustee is guilty of breach of trust. Kent &
Co. v. Plumb, 57 Ga. 207.
Allowing Sheriff's Sale — Duty When Encumbered. — A
fiduciary is bound to exercise the diligence of a prudent
man in protecting the property committed to his care. He
is liable for negligence or bad faith in permitting its total
destruction by a sheriff's sale, on the same principle that
he is responsible for its partial destruction by waste or
mismanagement. If the property is encumbered by a lien
he can not sit idly by and allow the estate to be sacrificed,
but is bound to exercise of diligence to prevent an im-
proper foreclosure, or an improper or disadvantageous
sale. Bourquin v. Bourquin, 120 Ga. 115, 117, 47 S. E. 639.
Question for Jury. — Whether the trustee used ordinary
diligence under the circumstances, for the protection of
the trust property, is a question for the jury to decide
from the evidence. King v. King, 37 Ga. 205, 220.
§ 3754. (§ 3171.) Power of sale extends to
what. — Where a trust deed, or other instru-
ment, limits an estate in fee, for life or with re-
mainders over, and in the same conveyance a
power to sell, incumber, or otherwise dispose of
the property is reserved or created, the power is
to be construed to extend to a sale, incumbrance,
or disposition of the fee, unless expressly or by
necessary implication limited to a smaller estate.
For a further treatment of the extent of the power to
sell, see 11 Cum. Dig. 172, 200,
Section a Codification of Decisions. — This section is a
codification of the principle of decisions of this court made
before the adoption of the Code of 1895. Heath v. Miller,
117 Ga. 854, 858, 44 S. E. 13.
Section Applicable Where No Expressed Limitation. — It
is impossible to find in the language of the deed under
construction any express or implied limitation of the estate
to be sold; and it necessarily follows from this section
that it was the intention of the grantor to create a power
to sell the fee- simple estate. Headen v. Quillian, 92 Ga.
220, 222, 18 S. E. 543; Woodbery v. Atlas Realty Co., 148
Ga. 712, 717, 98 S. E- 472.
Effect of Title Divesting upon Power of Sale. — The mar-
ried woman's act did not extinguish the power of sale given
to a trustee with the consent of the cestui que trust, al-
though the legal title was divested by the act, for it is
evident that the grantor's intention was that the power be
kept alive. The question of whether the power of sale has
been extinguished when the legal title is divested depends
upon whether the objects of the trust have been fully ac-
complished. Heath v. Miller, 117 Ga. 854, 44 S. E. 13.
Power Authorizes Trustee of Life Estate to Sell Fee. — The
executor held no greater estate than for the life of Lina,
the life-tenant, though his investment with the power of
sale extends to a sale of the fee, if made in accordance with
the terms and conditions of sale authorized by the power.
This power, of course, does not enlarge the estate with
which the will clothed him. Luquire v. Lee, 121 Ga. 624,
628, 629, 49 S. E- 834. Satterfield v. Tate, 132 Ga. 256, 264,
64 S. E. 60.
Where Court Orders Sale Granting Petition. — Where a
trustee of life estate petitions for the sale of the entire
property embraced in the conveyance to him, for the pur-
pose of supplying the immediate necessities of all the
beneficiaries, including the children, and of making perma-
nent investments for their benefit, an order granted to
sell the property in accordance with the petition in effect
directs an absolute sale of the entire estate, both legal and
equitable. Richards v. Ry. Co., 106 Ga. 614, 33 S. E. 193.
Sale Must Comply with Authority. — If the sale be only
authorized on the Written consent of the cestui que trust,
the consent must be obtained before the exercise of the
power, and the court will not enjoin the dispossession of
the purchaser from the trustee who bought without such
consent, in order to decree a specific performance of the
contract. Berrien v. Thomas, 65 Ga. 61. See also, Rowe
v. Henderson, etc., Co., 143 Ga. 756, 85 S. E. 917.
Effect of Sale for Unauthorized Purpose. — Where a trus-
1066 ]
§ 3755
APPOINTMENT AND POWER OF TRUSTEES
§ 3755
tee was vested with power to sell for reinvestment with the
consent of the life tenant, even though this section might
in such a sale vest a fee, if he sells for his individual
benefit with the consent of the life tenant, the fee does
not pass as to the remaindermen who did not assent if the
purchaser had notice. Interstate, etc., Realty Co., etc. v.
Bibb County, 293 Fed 721, 724.
Effect of Limiting Power to Sale of "Trust Estate." —
The language contained in the original trust deed, em-
powering the trustee to sell the "trust estate" in the man-
ner prescribed, is broad enough to confer the power to
sell the interest of the life-tenant in the land in which he
had reinvested the trust fund. This being so, and the
trustee having exercised the power of sale in conformity
with the requirements of the trust deed, the purchaser at
the second sale and his successors acquired title to a life-
estate only in the lands in controversy. Ballenger v. Bur-
ton, 147 Ga. 5, 92 S. E. 514.
§ 3755. (§ 3172.) Sales by trustees.— A trustee,
unless expressly authorized by the act creating
the trust, or with the voluntary consent of all
the beneficiaries, has no authority to sell or
convey the corpus of the trust estate, but such
sales must be by virtue of an order of the court
of chancery, upon a regular application to the
same. Such application may be made to the
judge in vacation, on full notice to all parties in
interest; and the order for such sale may be
granted at chambers, the proceedings to be re-
corded as above provided on application for ap-
pointment of trustee. Acts 1853-4, p. 60; 1855-6,
p. 146.
Cross References. — For a further treatment of order and
sale by trustee, see 11 Cum. Dig. 202, 203; 12 Enc. Dig.
378; 3 Cum. Dig. 571. As to duty of judge to enforce law,
see § 3761. As to when a beneficiary may sell, see § 3772.
As to enforcement of trust deed, see §§ 3311-3317. As to
what investments of fund may be made without order, see
§ 3763. As to manner of proceeding at chambers including
notice, etc., see §§ 5436-5439. As to service by publication
of person having interest, see § 5554(7). •
Sources of Authority to Sell. — Unless expressly author-
ized by the instrument creating the trust, or by judgment
of a court of competent jurisdiction, a trustee of a mar-
ried woman and minor children has no power to sell land
except by virtue of an order of a judge of the superior
court. Hufbauer v. Jackson, 91 Ga. 298, 18 S. E. 159.
Power Exercised before Passage of Act. — This power of
ordering sale of the corpus upon regular application to the
same, was exercised by our courts of chancery long before
the passage of the act of 1853-4 authorizing it. Ansley v.
Pace & Co., 68 Ga. 402, 405.
Same — Could Not Exercise Power at Chambers. — The
chancellor had plenary power in vacation over the appoint-
ment of the trustee, and could authorize the sale of the
equitable estate which the trustee represented. But he
had no power, at chambers, to order a sale of the legal
estate of the remaindermen for the purpose of reinvest-
ment. Pughsley v. Pughsley, 75 Ga. 95; Rogers v. Pace,
Id. 436; Taylor v. Kemp, 86 Ga. 181, 12 S. E- 296; Mc-
Donald v. McCall, 91 Ga. 304, 18 S. E. 157; Fleming v.
Hughes, 99 Ga. 444, 27 S. E. 791; Richards v. Ry. Co., 106
Ga. 614, 33 S. E. 193; Luquire v. Lee, 121 Ga. 624, 632, 49
S. E. 834.
Before the act of 1853-4 (this section) it was held by this
court in 1851 in the case of Arrington v. Cherry, 10 Ga.
429, that a judge at chambers has no power, upon petition,
to order a sale of trust property. "Chancery jurisdiction
is conferred," said the court, "in this state upon the su-
perior courts, and not upon the judges thereof." Iverson
v. Saulsbury, etc., Co., 68 Ga. 790, 793.
The object of the act of 1853, (this section) seems to be
to provide a speedy method for the appointment and re-
moval of trustees, sale, division of trust property and in-
vestment of trust funds, and in this way in proper cases
to benefit and promote the objects of the trust. This
power thus conferred by statute is limited, and can be ex-
ercised only in the cases and .mode prescribed by the legis-
lature. See also Milledge v. Bryan, 49 Ga. 397; Knapp v.
Harris, 60 Ga. 399; Iverson v. Saulsbury, etc., Co., 68 Ga.
790, 794.
Power Given by Act of 1854. — "The power given by ex-
press statute to the judge in vacation acting as chancellor,
seems under the act of 1853-4 to be limited to the appoint-
ment and removal of trustees, sale and division of trust or
other- property, or the investment of trusts or other funds."
Iverson v. Saulsbury, etc., Co., 68 Ga. 790, 794.
Same — No Power to Authorize Liens, Etc. — "No authority
is conferred upon the chancellor by order at chambers to
charge a trust estate with liens or mortgages, and unless
this power is conferred expressly, he is forbidden to exer-
cise such a power out of term time. We can not see that
the powers conferred on the judge under the acts recited
gives any power to the judge at chambers to authorize a
trust to borrow money, make a mortgage, or create any
change upon the trust estate." Iverson v. Saulsbury, etc.,
Co., 68 Ga. 790, 794.
The position taken by the majority of the court is that
the general assembly meant to empower the chancellor at
chambers to kill the trust estate, to destroy all the corpus,
but in no event to preserve it by empowering the trustee
to put a little lien thereon, when it was clear to his judi-
cial mind that the mortgage would be satisfied by the in-
come as soon as due and the entire corpus be saved.
(Dissenting opinion.) Iverson v. Saulsbury, etc., Co., 68
Ga. 790, 798.
Order in Chambers — Must Be Trust Estate. — As the act
of 20th of February, 1854, was construed in Milledge v.
Bryan, 48 Georgia 397, the judge, at chambers, had no
power, by virtue of that act, to order the sale of property
belonging to minors, unless it was held for them in trust,
or was within equity jurisdiction by reason of some pend-
ing litigation in a court of equity. Knapp v. Harris, 60
Ga. 399.
"Milledge v. Bryan, 49 Ga. 397, 411, held that 'The act
of 1854, giving power to a judge in chambers to appoint
and remove trustees, and to order the sale of property un-
der certain conditions, applied only to cases of trust es-
tates, such estates as should be in the hands of trustees,
and perhaps to such property or assets as might be with-
in equity jurisdiction by reason of some pending litigation
in her courts.' This ruling has been uniformly followed;
and in Rogers v. Pace, 75 Ga. 436, it was expressly held
that the chancellor had no power in vacation to decree a
sale of a vested legal remainder. Knapp v. Harris, 60 Ga.
403; Pughsley v. Pughsley, 75 Ga. 95; Taylor v. Kemp, 86
Ga. 181, 12 S. E. 296; Fleming v. Hughes, 99 Ga. 444, 27 S.
E. 791; Richards v. Ry. Co., 106 Ga. 614, 33 S. E. 193; Mills
v. Geer, 111 Ga. 275, 36 S. E- 673." Webb v. Hicks, 117
Ga. 335, 338, 43 S. E. 738.
No trust estate was created by the deed in this case;
and an order of the judge rendered during vacation at
chambers, authorizing a sale of the interest of the children
during minority, was void for want of jurisdiction in the
judge to pass it. Mitchell v. Turner, 117 Ga. 958, 44 S. E.
17. See Sparks v. Ridley, 150 Ga. 210, 103 S. E- 425.
Minor Must Appear by Guardian Ad Litem. — A chan-
cellor has power at chambers to grant leave to a trustee
for minors to sell realty held by him for them, notice be-
ing given and they appearing by guardian ad litem. Over-
by v. Hart, 68 Ga. 493.
The words "sell or convey" as used in this section do
not mean, refer to, or include anything else than a sale
of the corpus of the trust estate, for in the very sounding
line it says "such sale must be by virtue of an order of
the court of chancery." Iverson v. Saulsbury, etc., Co., 68
Ga. 790, 796.
Power to Sell Does Not Include Power to Mortgage. —
"It is insisted a power to sell necessarily includes the
power to mortgage. But the Code provides that authority
to act in chambers must be expressly granted." Iverson
v. Saulsbury, etc., Co., 68 Ga. 790, 794.
We would not be understood as ruling that, on a proper
case made, a court of chancery, which is the superior court
sitting in term, would not have authority to charge a
trust estate by a mortgage lien or allow the trustee to
raise money on the same for the preservation or protec-
tion of the corpus of the estate, but we do not find any
authority of that kind conferred by law on the judge at
chambers under this section. Iverson v. Saulsbury, etc.,
Co., 68 Ga. 790, 794.
It will be seen that the restriction is upon the trustee
himself, neither to sell or convey, but the power is given
to the chancellor to authorize the act, and then it may be
done. It is true that the section afterwards employs the
words "such sales;" but the spirit of the act is undoubtedly
the selling or conveying alluded tc in the restrictive words
above. Now, a mortgage is a conveyance; it is a deed, in
some cases even in this state it passes title, and the mort-
gagee enters and uses the fruits of possession until the
debt is paid. So that, if not from the words of the stat-
ute, from its reason and its spirit, the legislative mind is
seen to be that without authority from the beneficiaries,
or from the donor in the trust paper, a trustee cannot sell
or convey any of the corpus of the trust estate, unless he
1067 ]
§ 3755
APPOINTMENT AND POWER OF TRUSTEES
§ 3757
shall procure authority to do so from a court of equity.
("Dissenting opinion.) Iverson v. Saulsbury, etc., Co., 68
Ga. 790, 799.
Power in Chambers to Order Sale by Executor. — Inas-
much as an executor is a trustee it might be possible for
the chancellor to have jurisdiction in chambers under this
section, construed in the light of §§ 5436-5439, to order a
sale of the property, provided the other requisites of the
section are complied with. Blake v. Black, 84 Ga. 392, 11
S. E- 494.
Estate Purchaser Acquires by Sale. — "The purchaser
could not acquire anything more than the trustee was au-
thorized to sell." Rogers v. Pace, 75 Ga. 436, 439.
Sale Without Order of Court. — Under this section a trus-
tee in whom is vested the legal title to land, but to whom
the deed gives no power of sale, can not, without an order
of court, sell such land without the consent of all the
beneficiaries. Burwell v. Farmers, etc., Bank, 119 Ga. 633,
46 S. E- 885.
What Power to Sell Includes. — The power vested in a
trustee to sell the trust property and reinvest or otherwise
dispose of the proceeds in any manner for the use and bene-
fit of the cestui que trust, does not include the authority
to settle various actions of ejectment pending against said
trustee by agreeing to allow verdicts to be taken for the
plaintiffs in some of the cases, and for the defendants in
the others. Lemon v. Jennings, 52 Ga. 452.
Power to Sell Corpus Where Remainder Not in Trust. —
The chancellor may also authorize the sale of the corpus
of a trust estate in vacation under this section. But it is
the corpus of a trust estate which he may direct to be
sold in vacation or in chambers. Then, in the present
case, under the deed of G to Mrs. P and her children, the
only trust estate created was the life estate of Mrs. P;
this was to be held by G in trust for the use and benefit
of Mrs. P during her life, but at her death, the title to the
property vested absolutely in her children, who took a
vested remainder in this land. There is no trust connected
with their interest in the land; hence the chancellor had no
jurisdiction, at chambers in vacation, to direct the sale of
the land by the trustee, so as to divest their title; all
that could have been sold by the trustee under this decree
was the life estate of Mrs. P. Rogers v. Pace, 75 Ga. 436,
438.
Power to Lease Over Five Years without Order. — Where
a trustee is charged with the management of an estate and
applying the proceeds and profits to the support of the
cestui que trusts, he has power to lease it for a period of
five years, if the term and compensation be reasonable,
without an order of the superior court upon a regular ap-
plication under this section, notwithstanding that such a
lease passes an estate. Hutchenson v. Hodnett, 115 Ga.
990, 42 S. E. 422.
Necessity of Notice to Contingent Remaindermen. — This
section and §§ 5436-5439, 4221 to 4224, prescribing how trust
property is to be sold and the parties to be served with
notice of the proceeding, make no mention of persons who
may have such interests. It is a general principle that
courts do nothing nugatory and vain, and to attempt to
bring in the remote contingent remaindermen (children of
testator's grandchildren in life) in this case would be im-
possible. The interest which this section requires to be
represented in such proceedings must, from the very nature
of things, be certain and vested, and not wholly uncertain
and contingent. Schley v. Brown, 70 Ga. 64, 83.
It was not necessary for such of the contingent re-
maindermen (children of testator's grandchildren) as were
in life at the time, to have been made parties to the pro-
ceeding to obtain a judgment allowing the sale, nor is the
sale rendered invalid because this was not done. In such
cases, not only the holder of the first estate should be be-
fore the court, but also the intermediate remaindermen for
life should be parties. Schley v. Brown, 70 Ga. 64.
Same — Trustee Represents Contingent Remaindermen. —
When the person who is to take the remainder is not ascer-
tained and the remainder is contingent, it is sufficient to
have before the court the trustees to support the con-
tingent remainder, and the persons in esse having the title
to the vested estates. Schley v. Brown, 70 Ga. 64.
Illustrations.— Where certain members of an unincorpo-
rated lodge, holding property as trustees for the lodge,
conveyed it without the permission of all of the members
and without any order of the court, as provided by this
section, to a member of the lodge individually who after-
wards conveyed back to the trustees in their individual
capacity, it was not error to cause the deeds to be de-
livered up and cancelled. Myrick v. Holmes, 151 Ga. 437,
107 S. F. 324.
Same — Effect of Order to Sell in Accordance with Peti-
tion.— Where a trustee of life estate petitions for the sale
of the entire property embraced in the conveyance to him,
for the purpose of supplying the immediate necessities of
all the beneficiaries, including the children, and of making
permanent investments for their benefit, an order granted
to sell the property in accordance with the petition in ef-
fect directs an absolute sale of the entire estate, both
legal and equitable. Richards v. Rv. Co., 106 Ga. 614, 33
S. E. 193.
Recordation. — Orders- granted in vacation may appear in
the minutes under this section. Morehead v. Allen, 127
Ga. 510, 514, 56 S. F- 745.
Corroboration of §§ 5437-5439. — This and the following
section corroborate the view that §§ 5437, 5438, and 5439
vest -in the chancellor at chambers full power over trust
estates in respect to the removal of trustees, the sale of
trust property and the investment of trust money. Iver-
son v. Saulsbury, 65 Ga. 725, 730.
Cited in Boardman v. Taylor, 66 Ga. 638; Duke v. Cul-
pepper, 72 Ga. 842; Bourguin v. Bourguin, 120 Ga. 115, 47
S. F. 639.
§ 3756. (§ 3173.) The same.— Sales by trus-
tees, unless otherwise provided in the order,
shall be made under the same rules and restric-
tions, in every respect, as provided for sales by
administrators of estates.
Cross References. — For a further treatment of power of
sales by trustee, see 11 Cum. Dig. 199. As to how sales
are made by administrators, see §§ 4021 et seq. As to
public sale, see § 4022. As to sale under will, see § 4036.
Editor's Note. — As is pointed out in the case of Shack -
lett v. Ransom, 54 Ga. 351, 354, while the Code may not ex:
pressly provide that a warranty made in a deed by a trus-
tee does not bind the trustee personally (Acts of 1853-4, p.
56) as was the rule at common law, yet "in construing the
Code on this subject, we are to remember that its main
object was to codify the law, and that all of the old law is
of force that is not inconsistent with the code. There is
nothing in the code on the subject of trustees inconsistent
with this Act of 1853. The code does not pretend to codify
all rules of law of force in this state as to trustees and as
the Act of 1853 is not at all contrary with anything in the
Code, there seems to be no reason for holding that the
Act of 1853 is not of full force as to trustees."
The Act as applied to administrators is codified as § 4032
and as applied to other public officers as § 6054. It is very
probable that neither of these sections are broad enough to
include trustees and that this section does not refer to < r
include the law of § 4032, for all of the sections were in
the code when the above cited case was decided and the
court acquiesced in counsel's contention that the law was
omitted from the Code entirely.
Inasmuch as the above cited case holds that this Act is
still of force as to trustees, and is nowhere to be found in
the Code, we set it out below.
"An Act to define the liability of Executors, Administra-
tors, Guardians and Trustees, and certain public officers
in certain cases."
"No Executors, Administrators, Guardian, Sheriff, Cor-
oner, or other public officers shall be personally liable on
any warranty made in any conveyance of property here-
after by either of them lawfully sold, unless such Execu-
tor, Administrator, Guardian, Trustee, Sheriff, Coroner, or
other public officers shall distinctly express an intention
in such conveyance to be personally bound by such cove-
nant." Acts of 1853-4, p. 56.
For further editorial comment on the above discussed case,
see the editor's note to § 4025.
Manner of Making Sale. — Section 2328 of the Code of
1873 (the phraseology is the same as this section) provides
that trustees' sales shall be at public sale, unless the au-
thority for the sale otherwise provides. So a private sale
properly made by order of chancellor is valid. Shacklett
v. Ransom, 54 Ga. 351, 354.
Corroboration of §§ 5437-5439. — See note to § 3755.
Cited in Calloway v. Bank, 54 Ga. 441, 450.
§ 3757. (§ 3174.) Foreign trustees. — Foreign
trustee, upon filing certified copy of his appoint-
ment, may sue in the courts of this State; and
may sell property of his cestui que trust in this
State under the same regulations as are pre-
scribed for sales of real estate, by executors, ad-
ministrators, guardians, or trustees of this State.
Acts 1895, p. 85.
As to the law with reference to foreign guardians, see
§ 3107 et seq.
[ 1068 ]
§ 3758
APPOINTMENT AND POWER OF TRUSTEES
§ 376a
A trustee who was appointed in the state of Tenn., is
governed by the laws of Georgia as to land situated in
Georgia. Kerr v. White, 52 Ga. 362.
It is within the power of equity to decree the transfer of
funds from trustee in this state to trustee in another state
when all the beneficiaries reside in the other state. Linton
v. Show, 95 Ga. 683, 22 S. E. 693.
The charity, and the beneficiaries thereof, being in Eng-
land, it was proper for the Court to direct the whole fund
to be transferred to the trustees in England, to be there
invested for a proper execution of the intentions of the
testator. Silcox v. Harper, 32 Ga. 639.
§ 3758. (§ 3175.) Trustee to report sale and re-
investment.
1. In all cases where a judge in term by order,
or by decree based on the verdict of a jury, or
b}' order in vacation, shall order or allow any
trust property to be sold, it shall be the duty of
the court, or judge signing the order, to require
the trustee, within sixty days from the date of
said order, to file and have recorded in the of-
fice of the clerk of the superior court of the
county having jurisdiction of said trust prop-
erty a written report on oath of his actings and
doings under said order, with the name of the
purchaser of the property, the price at which
the same was sold, together with a description of
the property in which the proceeds have been
reinvested, the price paid, and the name of the
person from whom the same was bought, if
said proceeds have been reinvested, and if not,
the reason therefor.
Where an order fails to require the sale to be made with-
in sixty days, but the sale is so made such sale is valid.
Title Guarantee Co. v. Holverson, 95 Ga. 707, 22 S. E. 533.
2. If the proceeds have been reinvested, the
judge shall pass such order as to him shall seem
best, confirming the same or ordering a new in-
vestment. If said proceeds have not been rein-
vested, the judge shall issue such order as shall be
necessary, and require said trustee to report
within sixty days from said last-named order,
as hereinbefore required. Acts 1887, p. 56.
The court refused to read this section in connection with
§ 3397 because this section was passed long after the order
under consideration. Willingham v. Richardson, 106 Ga.
65, 31 S. E. 799.
§ 3759. (§ 3176.) Penalty for failure to report.
— In case any trustee or other person making a
sale as herein provided shall fail, neglect, or re-
fuse to make said report and reinvestment as
herein provided, the judge shall cause a rule to
be issued against said trustee or other person
making said sale, returnable at a time therein
stated, and upon the hearing thereof shall com-
pel the trustee to reinvest said funds under the
direction of the court, upon pain of being at-
tached for contempt and committed until the
same is done. Acts 1887, p. 56.
§ 3760. (§ 3177.) Parties to force reports. —
Purchasers shall in no case be required to see to a
reinvestment of any proceeds of such sales; but
guardians ad litem and all other persons sui
juris, parties to the proceedings in which leave
to sell has been granted, shall be bound to see to
said reinvestment and report, or, upon the fail-
ure of the trustee to reinvest and report, shall be
bound to have the failure to obey said order
called to the attention of the court for its action.
Acts 1887, p. 56.
As to notice of guardian's application to sell for reinvest-
[ 1069 ]
ment, see § 3065. As to necessity of purchaser at judicial
sales tracing funds, see § 6059.
A bona fide purchaser from the life tenant who had
power to sell would acquire a good title, and would not be
bound to see to the application of the proceeds. Guill v.
Nothern, 67 Ga. 345.
§ 3761. (§ 3178.) Judge to enforce this law. —
Courts of chancery being expressly charged with
the management and government of trusts and
trust estates, it is hereby made the duty of the
judges of the superior courts of this State to see
that the provisions of this Article are enforced.
Acts 1887, p. 56.
As to providing at chambers to appoint trustee, see §
3744. As to proceeding at chambers to order sale, see §
3755.
As the deed did not confer the power of appointment and
the original trustees are no longer in existence, the power
of appointing trustees vests in the superior court exer-
cising equitable jurisdiction. This power of appointment
may be exercised by the chancellor upon the petition of the
beneficiaries of the trust under this section and § 3779.
Thompson v. Hale, 123 Ga. 305, 311, 51 S. E. 383.
§ 3762. (§ 3179.) Purchaser with notice.— The
purchaser from a trustee, with notice actual or
constructive of the trust, holds as trustee for the
beneficiaries; if the purchaser be bona fide and
without notice, the purchaser holds the property
freed from the trust.
For further treatment of notice of trust, see 11 Cum.
Dig. 204; 12 Enc. Dig. 384. As to effect of purchaser ob-
taining title through fraud even though no notice of trust,
see § 3739(2).
Notice of Trust Relationship. — Bona fide purchasers are
the favorites of the law. It protects them against trustees
and cestuis que trust where trust property is bought with-
out notice under this section. Thornton v. Carver, 80 Ga.
397, 399, 6 S. E. 915.
Same — What Instrument Notice of. — A purchaser from
the trustee is charged by a deed with notice of the kind of
estate conveyed therein only. Bazemore v. Davis, 55 Ga.
504.
Where the written title to land is in the husband, although
he may have paid for it with his wife's money so that he
holds it in trust for her, yet if no trust appear on the face
of the title, purchasers for value from him or from his
vendee are protected against her equity unless they had
notice of it, actual or constructive, when they acquired
their interest and parted with their money. Lewis v.
Equitable Mortg. Co., 94 Ga. 572, 21 S. E- 224.
Same — Record as Notice. — The record of a settlement or
trust deed is not constructive notice, except in relation to
the property conveyed therein. It is not, of itself, notice
as to property purchased by the trustee with the proceeds
of that property. Bazemore v. Davis, 55 Ga. 504.
Same — Claiming under Same Deed as Constituting. — Where
one set of trustees claiming to function under deed, ac-
cept conveyance from another set of trustees, claiming to
function under the same deed, they take as purchasers
with notice under the principles of this section. So where
the trustees of a church take from the trustees of a school,
under such conditions, they take as trustees of the school.
Harris v. Brown, 124 Ga. 310, 52 S. E- 610.
Same — Effect. — Where a trustee invested trust funds in
certain property of which he owned a part, and then con-
veyed to M who had knowledge of this fact, agreeing that
the cestui que trusts should have their money first, the
purchaser can not recover the property from the cestui que
trusts who hold it to secure their claim, the principles of
this section intervening. Morgan v. Marshall, 62 Ga. 401.
Where title was in a son and he gave a security deed to
his sureties on an official bond and they paid out money
on the strength thereof, even if the mother's money paid
for the land and the son in fact held it as trustee, these
sureties will be protected as innocent purchasers under
this section. Phipps v. Mansfield, 62 Ga. 210.
Same — Notice Also of Debt Giving Trustee a Claim. — Al-
though a purchaser from a trustee may have notice of the
trust, yet if he also had notice that his grantor held a
debt against the trust estate which bound it, and received
a deed from the trustee, under authority of the chancellor
conveying a portion of the trust estate, he would stand,
in equity, upon the same footing as a purchaser without
notice under the principles of this section. Iverson v.
Saulsbury, 65 Ga. 725.
§ 3763
APPOINTMENT AND POWER OF TRUSTEES
§ 3763
Where a husband invested his wife's money in land, tak-
ing a deed in his own name, she was not estopped from set-
ting up her perfect equity against one who, with full knowl-
edge of the facts, took from the husband a conveyance of
the property, although the conveyance was made for the
purpose of indemnifying the grantee therein against loss
by reason of his having become a surety for the husband
and wife upon their joint promissory notes to another per-
son, it not appearing that such conveyance was executed
for the purpose stated with the wife's consent. Latham v.
Latham, 98 Ga. 477, 25 S. E. 505.
Same — When Purchaser Particeps Criminis. — The pur-
chaser is particeps criminis, where he not only knew that
he was buying trust property, but was the prime mover,
author and finisher of the whole business, and gets no title,
though the trustee be authorized to sell by the wife's di-
rection. Kent & Co. v. Plumb, 57 Ga. 207.
Same — Sufficiency of Proof to Protect Vendee. — The vendee
of property, the absolute title to which was apparently in
the vendor, to protect it from a trust sought to be set up,
is only bound to show that he had no notice of the trust
funds having gone into the property, although he might
have had some knowledge of the mingling by his vendor of
the trust funds with his own. Hathorn v. Maynard, 65 Ga.
169.
Same — Notice to Mortgagee. — A mortgagee, to the extent
of his interest in the land mortgaged, stands upon the same
footing as any other bona fide purchaser without notice
of the trust. Lane v. Partee, 41 Ga. 202. See also Parker
v. Bank, 107 Ga. 650, 34 S. E. 365.
Protection of Secret Trust. — Courts of equity will not
protect a secret trust in favor of minors against a bona
fide purchaser. Spinks v. Glenn, 67 Ga. 744, 747.
Where a husband uses funds of ihis wife and purchases
property in own name, the wife can not set up her equity
against a mortgagee who had no notice. The mortgagee
stands as purchaser. Parker v. Bank, 107 Ga. 650, 34 S.
E. 365.
Same — Where Purchaser Has Notice. — Where a mother
buys a tract of land with money belonging to her minor
children, and takes the legal title in her own name, equity
will imply a trust against her and her vendee with notice
of the children's equitable title. Manning v. Manning, 135
Ga. 597, 69 S. E- 1126.
Innocent Purchaser from Purchaser with Notice. — The
fact that an innocent purchaser purchased from a pur-
chaser with notice does not change her rights under this
section. She will be protected. Dotterer v. Pike, 60 Ga. 30.
Repayment Condition Precedent to Recovery. — Bene-
ficiaries of a trust can not both hold and enjoy the proceeds
of their trust property and at the same time recover the
property itself from one who paid full value therefor.
Equity will not aid them in such an effort. Bonner v.
Holland, 68 Ga. 718.
Cited in Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324.
§ 3763, (§ 3180.) Investment in stocks. — Any
trustee holding trust funds may invest the same
in stocks, bonds, or other securities issued by
this State, making a true return of the price paid,
and time of purchase. Such investments shall
be free from taxation so long as held for the
trust estate. Any other investments of trust
funds must be made under an order of the
superior court, either in term or granted by the
judge in vacation, or else at the risk of the
trustee. Acts 1845, Cobb, 333; Acts 1860, p. 31;
1861, p. 32.
Cross References. — For another treatment of such an in-
vestment, see 12 Enc. Dig. 368. As to power to invest in
lands, see § 4008. As to investment of funds by adminis-
trator, see § 4011. As to investment in county or city
bonds, see § 3765. As to guardian's investment in stocks,
see § 3070. As to proceeding at chambers for investment
of funds, including notice and the protection of summons,
see §§ 5436, 5438, 5439.
History. — In Georgia, the English rule was never adopted;
a statute of 1845, which authorized guardians and trustees,
holding any trust funds, to invest them in securities of the
state, was not considered compulsory; and before January
1, 1863 (when that statute was amended by adding a pro-
vision that any other investment of trust funds must be
made under a judicial order, or else be at the risk of the
trustee), those who lent the fund at interest, on what was
at the time considered by prudent men to be good security,
were not held liable for a loss without their fault. Cobb's
[ 1070 ]
Digest, 333; Brown v. Wright, 39 Ga. 96; Moses v. Moses,
50 Ga. 9, 33; Lamar v. Micou, 112 U. S. 452, 469, 5 S. Ct.
221, 28 L. Ed. 751.
By the law of Georgia before 1863, a guardian might in-
vest his ward's money in bank stock in Georgia or in New
York, or in city bonds, or in bonds issued by a railroad
corporation and indorsed by the state which had chartered
it. Lamar v. Micou, 112 U. S. 452, 5 S. Ct. 221, 28 L- Ed.
751.
Trustees' Discretion to Invest Narrowed by Section. — The
discretion of all trustees in the use of money is, by this sec-
tion, considerably narrowed. Brown v. Wright, 39 Ga. 96.
To invest even in state bonds, a receiver must have orders
from the judge under § 5480. Ricks v. Broyles, 78 Ga. 610,
614, 3 S. E. 772.
What Property Section Applicable to. — This section re-
lates to an investment of funds in the hands of guardians,
etc., and does not, by its terms, have any reference to ex-
changing real estate belonging to minors for other realty.
Such a disposition of property of minors is as much a sale
thereof as it would be to convey the same for money to be
invested in other land. Mills v. Geer, 111 Ga. 275, 292, 36
S. E- 673.
Not Applicable to Sale by Guardian for Reinvestment. —
Prior to the enactment of § 3064, a judge of the superior
court had no authority to pass an order in vacation au-
thorizing a guardian to sell or exchange the lands of his
ward for reinvestment, and a deed made by the guardian
in pursuance of such an order to a purchaser was void.
This section was not applicable. Mills v. Geer, 111 Ga.
275, 36 S. E. 673.
Court's Power to Refuse Application for Other Invest-
ment.— If property in which an infant is interested should
be sold and converted into money, then the infant's money
would have to be invested by the guardian for the infant,
and he could only invest in stocks, bonds, or other securi-
ties issued by this state; any other investment must be
made by an order of the superior court. So if is clear that,
if this property were sold, the superior court would have
power to direct an investment of the money in the identical
property sold. If the court has the power to direct a re-
investment in these identical securities, it has the power
to say, let the present investment stand. The only thing
is, will it be for the benefit and advantage of the infant?
Swann v. Garrett, 71 Ga. 566, 571.
Purchase of Stock at Ancestor's Sale. — Without an order
or decree authorizing a guardian to invest, he can not
purchase shares of stock belonging to the estate of the
ward's ancestor, when offered at administrator's sale.
Rogers v. Dickey, 117 Ga. 819, 45 S. E- 71.
Ratification of Improper Purchase of Stock. — If, without
proper order, the guardian purchases at the administrator's
sale of the ward's ancestor's stock and takes a transfer of the
stock to himself as guardian, a court of equity, a succeed-
ing guardian, or the beneficiaries on obtaining majority
may ratify in case the property increases in value or re-
mains of the same value, or may disaffirm the purchase
in case the same depreciates or becomes worthless. Rogers
v. Dickey, 117 Ga. 819, 45 S. E. 71.
Guardian's Investment in Bonds, Etc., Other than State.
—If the guardian, without an order of court, invested the
funds or currency, which he held in trust, after the 1st of
January, 1863, in securities other than the stocks, bonds,
or other securities issued by this state, he did so at his
own risk, and he is liable for the value of such currency
at the time of such investment and this is true irrespective
of the chances of loss by a repudiation of the state war
debt. Brown v. Wright, 39 Ga. 96, 101.
Effect of Ordered Investment Proving Bad. — Where a
bank was made trustee and later upon its petition and the
petition of the cestui que trust, the court granted an order
investing the funds in the capital stock of the bank, the
investment was legal under this section, though such bank
later failed. Haddock v. Planter's Bank, 66 Ga. 496.
Investing in Confederate Bonds, Etc. — Trustees investing
cestui que trusts' money in confederate bonds or bonds of
the state during the confederacy in pursuant to the Acts
of 1864, p. 32, upon which a part of this section is based,
were protected by the Federal Government. Baldy v.
Hunter, 171 U. S. 388, 18 S. Ct. 890.
After January 1, 1863, a guardian had no right to invest
the Confederate money of his ward in his hands, except
for state securities, without an order of the superior court.
If he did so, he became liable for the value of such money
at the time it was so invested. Venable v. Howard, 68
Ga. 167.
Section Includes Guardians. — We hold that this section
changes the rule as it existed prior to January 1st, 1863.
Its language is broad enough to embrace guardians, as
§ 3764
APPOINTMENT AND POWER OF TRUSTEES
§ 3767
well as all other trustees, or persons having the manage-
ment of trust funds. Brown v. Wright, 39 Ga. 96, 101.
Cited in Mitchell v. Turner, 117 Ga. 958, 44 S. E. 17.
§ 3764. (§ 3181.) May invest in State securi-
ties at less than seven per cent. — Executors, ad-
ministrators, guardians and trustees may invest
trust funds in stocks, bonds, or other securities
issued by this State, bearing a lower rate of in-
terest than seven per cent, per annum, and shall,
in the settlement of their accounts on the funds
so invested, be chargeable with no greater in-
terest than that received from the State: Pro-
vided, that such executor, administrator, guard-
ian, or trustee shall, within thirty days after
such investment, make a return to the ordinary
of the amount and character of the bonds pur-
chased and the price paid. Acts 1884-5, p. 128.
As to investment in stocks by guardian, see § 3070. As
to investment of funds by administrator, see § 4011. As
to investment of funds by executor, see § 3892.
§ 3765. Investments in validated county or
municipal bonds. — Executors, administrators,
guardians, and trustees are authorized to invest
trust funds in any county or municipal bonds
which have been or may be issued by any
county or municipality of this State, and have
been validated as required by law for the valida^
tion of county and municipal bonds, upon the
same terms and conditions as they are now au-
thorized to invest trust funds in State bonds and
securities. Acts 1901, p. 57; 1908, p. 72.
As to investment of funds by executor, see § 3892. As
to investment of funds by administrators, see § 4011. As to
investments by guardians, see § 3070. As to investments
in stocks, see § 3763. As to validation of bonds, see §§
445-460. As to effect of validation of bonds in which trust
funds are invested, see § 462.
§ 3765(1). Farm loan bonds; lawful invest-
ments for fiduciaries, insurers, etc. — Farm loan
bonds issued by federal land banks or joint
stock land banks, under an Act o f Congress
approved July 17th, 1916, entitled "An Act to
provide capital for agricultural development, to
create standard forms of investment based upon
farm mortgage, to equalize rates of interest upon
farm loans, to furnish a market for United
States bonds, to create government depositories
and financial agents for the United States, and
for other purposes," shall be lawful investments
for savings bank deposits, for all fiduciary and
trust funds, and for the funds of insurance com-
panies and savings and loan associations. Said
farm loan bonds shall be accepted as security
for all public deposits on the same terms as any
bonds for which the faith of the United States
is pledged. Acts 1918, p. 160.
§ 3766. (§ 3182.) May contract for labor. —
Trustees may make contracts for labor or ser-
vice for the benefit of the estates of their cestui
que trust, upon such terms as they deem best;
and all such contracts, made in good faith, shall
be a charge upon and bind said estates, when-
ever the same are approved by the ordinary of
tb.2 county. Acts 1866, p. 87.
Cross References. — As to power of guardian to contract
for labor, see § 3068. As to guardian's cultivation and man-
agement of plantation, see § 3069. As to administrator's
power to contract for labor, see § 4013.
Approval by Ordinary. — Question of whether or not the
ordinary must approve contract for labor raised, but not
decided in Wayner v. Robinson, 56 Ga. 47, 51.
Approval of Equity Courts — If the trustee, with cestui
[10
que trust's approbation, carry on a trust farm, and pro-
duce supplies for her support and for carrying on the
farming operations, a court of equity may give sanction
to what has been done, put the farm into the hands of a
receiver, and decree that a part of the future net income,
year after year, be applied towards the payment of past
accumulated balances due to creditors for such supplies.
Robert v. Tift, 60 Ga. 566.
A married woman's property is not liable for the wages
of an overseer hired by her husband to superintend her
plantation, where there is no evidence that he acted as his
wife's trustee, or that she received the crops, or was other-.'
wise benefited by the services rendered. Wagner v. Rob-
inson, 56 Ga. 47.
§ 3767. (§ 3183.) Profits made.— The trustee
must not use the trust funds to his own profit.
He is liable to account for all such profits made.
Cross References. — For a further treatment of liability for
personal profits, see 11 Cum. Dig. 194; 12 Enc. Dig. 361.
As to trustee's ability to take property at appraised value,
see § 3991. As to agent's ability to make personal profits,
see § 3583. As to trustee's authority to compromise doubt-
ful claims, see § 4006. As to amount of interest charged
against trustees, see § 4078.
Rule Applies to All Fiduciaries. — It is a fundamental rule
that an administrator or other trustee can make no profit
for himself out of the trust estate. This principle is so
well established and so universally recognized — indeed so
essential to the honest and proper management of property
so situated, that he is never encouraged to take risks with
it for his personal aggrandizement; on the contrary, he is
restrained from so doing by being compelled, if his venture
turns out unfortunately, to account for the full value of
what is lost; and if it be successful, he is to turn over his
gain to the beneficiary of the fund embarked in the enter-
prise, Caruthers and Wife v. Corbin, 38 Ga. 75 to 98;
Roberts v. Mansfield, 38 Ga. 452 to 458. This rule applies
not only to trustees eo nomine, but to all persons sustain-
ing confidential relations to others, such as executors and
administrators, guardians, agents, officers, partners, at-
torneys, etc. Macon v. Huff, 60 Ga. 221, 228, 229; Dowling
v. Feeley, 72 Ga. 557, 561.
Extent of Liability for Profits. — The fiduciary is account-
able not only for actual profits but for what the profits
would have been under proper management where he buys
in the property at a sheriff's sale in his own name.
Fricker v. Americus, etc., Co., 124 Ga. 165, 52 S. E. 65.
Director's Liability for Profits. — If a director came into
possession of enough of the property or funds of the com-
pany to pay its creditors, but instead invested same for a
profit, he became a trustee for the creditors and is liable
to account for the profits under this section. Simmons v.
Camp, 71 Ga. 54, 61.
Can Not Bargain for Self Directly or Indirectly. — "The
current of Georgia policy, both in legislative and judicial
channels, runs steadily in one direction and to one point,
that no man who is agent or trustee for another, whether
a private or public agent or trustee, shall have the oppor-
tunity or be led into the temptation to make profit out of
the business of others entrusted to his care, by bargaining
with himself, directly or indirectly, in respect to that busi-
ness.'" Macon v. Huff, 60 Ga. 221, 228.
Purchase at Own Sale. — The trustee could not buy at his
own lawful sale. For a stronger reason he could not buy
at a sale brought about by his own unlawful conduct under
this section. He can not make a personal profit in dealing
with the trust property either by act of omission or of com-
mission. Bourquin v. Bourquin, 120 Ga. 115, 118, 47 S. E.
639. See also Boyd v. Clements, 14 Ga. 639; Shine v. Red-
wine, 30 Ga. 780.
Benefit of Payment of Debt at Less Than Face Value. —
If an administrator or executor pay debts of an estate with
less than is due upon them, he shall not take the benefit of
it himself; but other creditors and legatees shall have the
advantage of it. The estate is entitled to all the benefits
arising from such payment, and not the executor personally.
Caruthers v. Corbin, 38 Ga. 75.
Can Not Invest in Hazardous Undertakings. — Of
course the trustee can never be allowed to derive a per-
sonal advantage from the use of his principal's property;
nor can he on the other hand hazard their funds in specula-
tion, business, or any form of investment other than that
authorized by the deed of trust, the statute, or an order of
■a. court of competent jurisdiction. Rogers v. Dicker, 117
Ga. 819, 822, 45 S. E. 71.
Sale for Taxes — Subsequent Acquisition by Trustee. —
Where in consequence of a trustee's breach of- duty the 1
estate is sold for taxes, he can not, even after the expira-
rl]
§ 3768
APPOINTMENT AND POWER OF TRUSTEES
§ 3770
tion of the redemption period, acquire a title from the pur-
chaser at the tax sale, good as against his cestui que trust.
In equity the reconveyance will be treated as a correction
of the wrong, leaving the property impressed with the
original trust. Bourquin v. Bourquin, 120 Ga. 115 47 S
E. 639.
§ 3768. (§ 3184.) Following funds.— The bene-
ficiary of a trust estate may follow the funds
wherever they can be traced, and at his option
may affirm or reject an unauthorized investment
by the trustee.
Cross References.— For treatment of following trust prop-
erty, see 11 Cum. Dig. 199; 12 Enc. Dig. 373. As to tracing
assets, see § 3785. As to creditors of deceased person reach-
ing equitable assets of estate, see § 4601. As to principal's
power to reach money deposited in agent's name, see § 3577.
Option to Proceed against Trustee or Follow Funds If
it be true, as alleged, that H conveyed to M his interest in
the East Georgia & Florida Railroad to enable the latter to
build a railroad, and if instead of building the railroad its
entire franchise and all its holdings were conveyed by a
void contract to another corporation, it is optional with H
to proceed against M for the breach of their undertaking
or to pursue and attempt the recaption of the property it-
self. Hamilton v. Savannah, F. & W. Ry. Co., 49 Fed. 412,
Minor's Right to Follow Funds.-The property left by K
at his death constituted a fund which his children to the
extent of _ their interest therein, had the right to follow
wherever it could be traced. When the widow bought the
land in question with the money of her children, taking the
title in her own name, the beneficial interest in the property
at once vested in them, and she held as their trustee, though
«» °?f e~ ^ S° wronSfully- Dodd v. Bond, 88 Ga. 355,
■ioa, 14 b. ±v. 581.
Traced into Hands of Trustee or Privies. - Propertv
wrongful y purchased with the trust fund, may at the op-
tion of the cestui que trust, be pursued in the hands of the
trustee, or those in privity with him, and held subject to
the terms of the original trust. Martin v. Greer 1 Ga 553
Priority Over Claim of Trustee's Creditor. -1 When a
trustee invests trust funds in property in his own name, the
cestui que_ trust may elect to follow the corpus, and as
against a judgment creditor of the trustee, the title of' the
cestui que trust has the preference, especially if the debt of
the creditor be in existence at the time of the purchase of
Perry sTgL lV tr"Stee *** ** trUSt fundS" Gray ?•
Tracing Funds when Mixed with Trustee's — Where a
guardian has loaned her ward's funds with her own, in her
name individually, the ward may reclaim his due share of
the common fund in the hands of an agent or attorney of
the guardian, or even of a creditor of the guardian who has
^Tdaemst,he80SSe3th5nStJE °lt ^ ^ ^^
Funds Must Be Identified.-' <To follow trust funds, it
must be possible to identify them, to show that they have
S 53t0Gah416!r04S.rty **** * * -*"*■" vi» V"
debatmtTh,-r °n,Trustee's Estate.-That a guardian is in
debt to his wards, as appears by his returns to the ordi-
nary d0eS not give the wards a lien on his estate, unless
«E f"nd.,can .£etraced mto some specific thing, or can it-
self be identified; nor does the fact that the guardian's
whole estate is before the court, in the hands of a rece ver
alter the rule. And this doctrine, that trust monev does
ofZT ' heVnIesS * ca« ^ traced, applies to all' trust
Bel,m5ryGa.°4ri60f "T^ *"?* "? ™^ V^ +:
Change of Investment by Authority of Cestui Que Trust
-If the trustee changes the investment, with the consent
for a™? m qUC t-"St' WhVS °f Iegal a^' he is ™>t liable
lZiTmZs3sTassT of such new investment- Cam^-
§ 3769. (§ 3185.) Disposition of income —
Trustees are authorized, out of the income of the
estate, to pay all debts incurred for its protec-
tion and preservation, and to appropriate a suf-
ficiency of the balance for the support and main-
tenance of the beneficiaries of the trust. They
can not encroach upon the corpus of the estate
except by order of the chancery court.
Cross References—For another treatment of the disposi-
tion of income, see 11 Cum. Dig. 213; 12 Enc. Dig 408 As
to power of cestui que trust to contract trust debt, see §
3771. As to administrator's or executor's allowance for
minors where there is no guardian, see § 4007.
Income of Executory Trust Appropriated to Payment.—
Where a woman, who was a defendant in judgment, was
alone interested in property and its income during her life
but such property could not be reached by levy and sale
under the judgment against her because it was an executory
trust, the title being in a trustee, a court of equity would
take charge of the property and appropriate the income +o
the payment of the debt. Cruger v. Coleman, 75 Ga 695
Debts Must Be Contracted by Authorized Person.— Where
attorney was employed by trust estate's attorney but not
by the trustee or beneficiary, the estate is not liable for
such services where it appears the counsel was not agent
to employ such attorney. Mathews v. Giles, 108 Ga. 364 33
S. E. 1006.
Liability for Necessary Goods or Service.— Trust estates
are liable to pay out of their income for goods or services
furnished or rendered, and such as are necessary and proper
Wylly v. Collins & Co., 9 Ga. 223.
The future income will be applied to the payment of
operating farm and furnishing supplies for cestui que trust's
support, where she owns only life estate. Robert v Tift
60 Ga. 566. '
Corpus Liable Regardless of Income.— It is not necessary
to allege that the income of the estate was insufficient to
pay the debt; as the statute makes the corpus subject re-
gardless of the income. Sanders v. Houston Guano etc
Co., 107 Ga. 49, 32 S. E. 610. *'
Paying Trustee Out of Corpus.— As a general rule, the
Courts of Chancery will not permit a trustee to encroach
upon the trust fund, or sanction an expenditure exceeding
the income of the estate; but if, from circumstances which
do not result from the fault of the trustee, there be no in-
come or interest out of which the trustee may get com-
pensation for his care, trouble, and attendance, in manag-
ing the fund, then he may receive payment out of the
principal. Burney v. Spear, 17 Ga. 223.
Extent of Estate's Liability .-A trust-estate 'is ordinarily
liable for necessaries for its protection and preservation,
and, to the extent of the income, for necessaries for the use
of the beneficiaries who are in want, unless the trust-deed
otherwise provides. Leonard v. Powell, 41 Ga 59&
Allowance of Attorney's Fees. - If a IrllsTeTlT guilty of
maladministration, and the beneficiaries of the trust are
justifiable in suing him to recover or secure the trust es-
tate m his hands, the attorney's fees of the trust for resting
sucn an action will not be allowed out of the trust estate.
Melson v. Travis, 133 Ga. 710, 66 S. E. 936.
Trust Debt Charged to Trustee Personally.— Where one
erects a building on trust property thinking the propertv
owned personally by trustee, and the trustee is insolvent,
equity will apply the increase in rents to payment of debt
Malone v. Buice, 60 Ga. 152.
A sale of goods to a trustee on his individual credit the
seller not knowing of the trust, but the goods being, in
fact, bought and used for the trust estate, and being suit-
able and necessary therefor, and the trustee as such after-
wards having given his negotiable note for the unpaid
balance of the price, and the complainant having purchased
the note, the complainant is the owner of the balance of
the account represented by the note, and is a creditor of
the trust estate. Kupferman v. McGehee, 63 Ga 250
What Declaration Must Show—Where it is sought to
subject a trust estate at law for necessaries furnished the
cestuis que trust, the declaration should not only set out
the names of such cestuis que trust and describe the prop-
erty of which the estate consists, but should also set forth
the terms of the trust, so as to disclose what were its scope
and purpose, or what, if any, restrictions were imposed
upon the trustee's power, and the value of the propertv
whether it yields any income, or whether an encroachment
on the corpus will be necessary and proper; and also the con-
dition in hie and circumstances of the cestuis que trust
Failing m this, the declaration is demurrable. Greenfield v
Vason, 74 Ga. 126; Gaudy v. Babbitt ,et al., 56 Ga 640
1072 ]
§ 3770. (§ 318,6.) Lien.— Trustees are not au-
thorized to create any lien upon the trust estate,
except such as are given by law.
Cross References. — For further treatment of power to
create lien, see 11 Cum. Dig. 193; 12 Enc. Dig. 359. As to
power of guardian to create lien, see § 3074. As to trust
estate's hen or estate of trustee dying with trust funds, see
S 3773.
Mortgage— Necessity for Court's Order. — Inasmuch as
this section provides that trustees are not authorized to
create any hen upon trust estates, except such as are given by
law, since the law does not authorize the giving of a mort-
§ 3771
APPOINTMENT AND POWER OF TRUSTEES
§ 3773
gage without a proper order by a judge of the superior
court, the petition as it originally stood in this case does not
set out a cause oi action because it does not show facts
meeting the above requirements. Pease v. Wagnon, 93 Ga.
361, 20 S. E. 637.
Mortgage at Chambers — Early Doctrine. — While a
chancellor sitting at chambers, on full notice to all parties,
may order a sale of trust property, he has no power to grant
authority to a trustee to mortgage a trust estate, and a
mortgage so given will not bind the cestuis que trust.
Iverson v. Saulsbury, 68 Ga. 790.
"In Iverson v. Saulsbury, 68 Ga. 795, a majority of this
court held, that after full notice to all parties, a chancellor
could not in vacation authorize a trustee to encumber the
trust estate by mortgage." Beckwith v. The Rector, etc., 69
Ga. 564, 575.
Same — Modern Doctrine. — " 'The law, without some pre-
liminary order granted by the proper judge of the superior
court in the exercise of his equitable jurisdiction, does not
L-nable any trustee to create a lien by mortgage.'
See Pease v. Wagnon, 93 Ga. 362, 20 S. E. 634. This
Court, by a majority decision, first held that a judge
had no power at chambers to grant to a trustee
authority to mortgage trust property. Iverson v. Sauls-
bury, etc., Co., 68 Ga. 790. This ruling was disapproved in
Weems v. Coker, 70 Ga. 746, and the contrary doctrine es-
tablished. This latter decision has since been followed.
Bolles v. Munnerlyn, 83 Ga. 727, 10 S. E. 365;" Wagnon v.
Pease, 104 Ga. 417, 430, 30 S. E. 895.
Burden of Proving Authorization by Law. — The general
rule is that trustees are not authorized to create any lien
upon the trust estate, except such as is authorized by law.
It is incumbent upon one seeking to charge the ward's prop-
erty by a contract of the guardian to show that the claim
set up by him is one which the law specially authorized the
guardian to contract and bind the ward's property there-
for. Burke & Williams v. Mackenzie, 124 Ga. 248, 249, 52
S. E. 653. See also, Bank v. Mead, 145 Ga. 608, 610, 89 S.
E. 681.
Where Power Given by Deed.- — The clause of this section
which declares trustees unauthorized to create any lien upon
the trust estate, except such liens as are given by law, does
net nullify an express power to mortgage conferred by a
trust deed made prior to the adoption of the Code. Coles -
bury v. Dart, 61 Ga. 621.
Authority to Make Lien Under § 3348. — A trustee has no
authority to create a lien as provided in § 3348 upon the
property of the trust estate, or the crops to be made there-
on, for supplies furnished with which to make such crows.
Taylor & Co. v. Clark, 56 Ga. 310.
Purchase of Fertilizer. — The guardian is not authorized to
purchase fertilizer upon credit under the facts alleged. Bank
v. Mead, 145 Ga. 608, 89 S. E. 681.
Lien by Cestui Que Trust. — While under the ruling in
Dupont v. Mayo, 56 Ga. 309, a trustee can not create a lieri
upon the property of the trust estate for supplies furnished
to make a crop, because of the prohibition in this section,
of the Code, yet the cestui que trust, though a married wo-
man, under the decision in Morrison v. Solomon, 52 Ga. 205,
had power in 1872 to mortgage her separate estate, just as
a feme sole could do, unless restrained by the deed of trust.
Tift & Co. v. Mayo, 61 Ga. 246.
§ 3771. (§ 3187.) Debts of cestui que trust.—
A beneficiary having possession of the trust
estate, or when the trustee fails or refuses to
provide for its protection and preservation, or
for the support and maintenance of the bene-
ficiary, may contract debts for these purposes.
The trust estate of such beneficiary shall be
liable for the payment of such debts.
See 12 Enc. Dig. 409 for case dealing with right to charge,
estate with cestui que trust's debts. As to the disposition
of income, see § 3769.
Liability where Trustee Gave Note for Beneficiary's Per-
sonal Debt. — Where a trustee made a note for the personal
account of the cestui que trust, before she or her estate can
be bound, it must appear that she authorized it. Stilwell v.
Woodruff, 76 Ga. 347.
If the trustee, with cestui que trust's approbation, carry
on a trust farm, a court of equity may decree that a part
of the future net income, year after year, be applied to-
wards the payment of past accumulated balances due to
creditors for such supplies. Robert v. Tift, 60 Ga. 566.
Executory Estate Not Liable at Law. — An executory es-
tate is not liable to levy at law; but. had the allegation and
proof of an equitable plea have shown that the profits were
more than enough to support the beneficiaries, the surplus
would be decreed to be applied to the debt. Johnston v.
Redd, 59 Ga. 621.
Liability of Income for Debt Contracted. — The income of
the property accruing during the life of the life tenant is
subject, in equity, to a debt contracted by him while manag-
ing the trust estate, for necessary supplies for himself and
family, and for the use of the trust estate, the debt having
been reduced to judgment. Bailie v. McWhorter, 56 Ga.
183.
§ 3772. (§ 3188.) Sale by beneficiary.— A bene-
ficiary of a trust estate, of full age and of sound
mind, may voluntarily sell and convey any por-
tion of her interest in such estate to any person,
except her husband or her trustee, and upon ap-
plication to the court such sale may be con-
firmed, in the discretion of the court, and the
proceeds reinvested under order of the court.
Cross References. — For another treatment of right of
beneficiary to convey, see 12 Enc. Dig. 409. As to sale oi
estate by wife to husband or trustee, see § 3009. As to
sales by trustees, see § 3755.
Power of Sale Includes Power to Mortgage. — Where
authority is given to cestui que trust to sell the
trust estate with consent of the trustee, a mortgage given
by her to secure purchase of land is valid. Wayne v. Myd-
dleton, 2 Ga. 383. But refer to McMillian v. Cox, 109 Ga.
42, 34 S. E. 341.
Purchase of Trustee. — A trustee may purchase the trust
property from his cestui que trust, who is sui juris, provided
there is a distinct bona fide contract, ascertained to be
such, after a jealous and scrupulous examination of all the
circumstances, that the cestui que trust intended the trus-
tee should purchase, and there is no fraud, no concealment,
no advantage taken by the trustee, of information acquired
by him in the character of trustee. Bryan v. Duncan, 11
Ga. 67.
§ 3773. (§ 3189.) Lien on estates for trust
funds. — The estate of a trustee, dying chargeable
with trust funds in hand, shall be appropriated
first to the payment of such indebtedness, after
the funeral expenses, in preference to all other
liens and claims whatever. Acts 1853-4, p. 70.
Cross References. — For the liabilities of trustees in gen-
eral, see 11 Cum. Dig. 195, 196; 12 Enc. Dig. 362-364. As
to liens against deceased trustees, see § 3332. As to priority
of debts in winding up deceased trustee's estate, see § 40G0.
As to how properly liable, see § 4001. As to liability of
person assisting in misapplying assets, see § 3784. As to
tracing assets, see § 3785.
Section Applies to Trustee's Representative, Not to
Trustee. — The Act of 1854, "to amend an Act for the better
protection and security of orphans and their estates, ap-
proved February 18th, 1799, by extending the provisions of
the fifth section thereof to trustees and their estates," (this
section) gives a remedy against the executors or adminis-
trators of trustees, buy none against the trustees them-
selves. Hampton v. Hampton, 18 Ga. 513.
Section Not Applicable to Attorney. — An attorney at law
who has collected money for a client professionally, and re-
tains it, is not a trustee having actual possession, control
and management of the trust property. It would be an un-
due strain upon this and § 4000, to hold that he is. The
safer and better construction is, that this section con-
templates trustees proper — those in whom title is vested in
trust for other persons, and whose duty it is to make re-
turns to the ordinary under § 3751. Southern Star Copper,
etc., Co. v. Cleghorn, 59 Ga. 782, 783.
Section Does Not Embrace Foreign Trustees. — Debts due
by a deceased trustee, entitled to priority of payment, in
the administration of assets, as provided by this section, are
such only as may be due by persons appointed by the laws
of this State. Trustees appointed in other States are not
embraced. Debts due by foreign executors, trustees, etc..
are to be paid, according to their character, as bonds or ac
counts, etc., the same as if cwing by others, without any
priority on account of such character. Harris, Judge, dis-
senting. Caruthers v. Corbin, 38 Ga. 75.
Payable after Expenses and Year's Support A debt due
by the intestate as trustee, is to be paid next after the ex-
penses of administration and the year's support of the in-
testate's family. Rust, etc., Co. v. Billingslea, 44 Ga. 306.
Priority after Delivery Upon Sale in Lifetime. — Where
delivery made to carrier for a shipment to vendee's ageni,
vendee took to the exclusion, even, of those having claims
[ 1073 ]
§ 3774
APPOINTMENT AND POWER OF TRUSTEES
§ 3777(1)
against him as trustees, the debt of highest dignity under
statute of distribution. Howes v. Whipple, 41 Ga. 323.
§ 3774. (§ 3190.) Acceptance of trust. — The ac-
ceptance of a trust is necessary to constitute a
person trustee; it may be done by acts as well as
words. After acceptance, no disclaimer will re-
move the character of trustee.
For a full treatment of the acceptance of the trust, see 11
Cum. Dig. 191; 12 Enc. Dig. 351, 352.
Necessity of Writing.— It is not necessary that an ac-
ceptance of a trust should be in writing. It may be done
by acts as well as words. Mounger v. Duke, 53 Ga. 278.
Acts Establishing Acceptance.— Where one was appointed
trustee for his wife prior to 1866 and he began to function
in such capacity by selling the land upon application and
obtaining an order from the proper court, he will be deemed
to have accepted the trust by his actions under this section.
Johnson v. Cook, 122 Ga. 524, 50 S. E. 367.
Where one appointed trustee, with notice of the trust,
voluntarily undertakes to discharge duties devolving upon
the trustee, and interferes with the trust fund in such a
manner and to such an extent as that his interference there-
with can not be plainly referred to some other ground of
action, he will be conclusively presumed to have accepted
the trust. Freeman v. Brown, 115 Ga. 23, 41 S. E- 385.
Where a person, as next friend, filed a bill to set up
equity in property was decreed to be a trustee with the
title vested in him as trustee for the wife and children, this
amounted to an acceptance of the trust by him; and it
there was no renunciation of the trust, he continued to be
the trustee for the children, and if he failed to act when he
should have done so, he is liable to them for his non-ac-
tion. Salter v. Salter, 80 Ga. 178, 4 S. E. 391.
Effect of Acceptance as Trustee for Wife.— Although the
words of a deed or will may be such as do not create a
separate estate in the wife, yet if the husband accept the
appointment of trustee for his wife under order of the
chancellor, and receives property as such, recognizes it as
belonging to his wife, and admits that it is hers during his
life, the wife can maintain a bill against the legal repre-
sentative of her husband after his death for such property,
or for the property in which the same may have been in-
vested by the husband. Brown v. Kimbrough, 51 Ga. 35;
Mounger v. Duke, 53 Ga. 278.
Where one enters his acceptance on the back of a deed
appointing him trustee, he has accepted the trust and "no
disclaimer will remove the character of trustee" by the
terms of this section. New South P. & T. Asso. v. Gann,
101 Ga. 678, 29 S. E- 15.
Taking Deed to Self as Terminating Relationship. — Trus-
tee did not cease to hold as such, by taking deed to him-
self individually. Turner v. Barber, 131 Ga. 444, 62 S. E-
587.
Ignorance of Rights — Estoppel to Set Up. — It was not er-
ror in the judge, on the trial, to refuse to charge that if
the plaintiff accepted the trust in ignorance of his legal
rights, he was not estopped from now setting them up, and
on the contrary charging, that if he knew the terms of the
deed to the trustee, and himself accepted the trust, know-
ing that the deed was to the children after the wife's death,
lie would be estopped. Allen v. Solomon, 54 Ga. 484.
The subsequent renunciation of the legislative ratification
of the trustee's appointment does not discharge him from
liability. Bethune v. Dougherty, 30 Ga. 770.
§ 3775. (§ 3191.) Extent of trustee's estate.—
Generally a trustee takes an estate as large and
extended as the necessities of the trust require,
and no more.
For a full treatment of the extent of the trustee's estate,
see 11 Cum. Dig. 172-175; 12 Enc. Dig. 315-320.
Power Determined by Character of Trust. — A trustee is
invested with sufficient power to execute the trust, and in
order to determine the power of the trustee, the court will
look into the character of the trust estate. So a trustee
had power to mortgage trust property to carry on hotel
business under this section. See Wayne v. Myddleton, 2
'Ga. 383; Miller v. Redwine, 75 Ga. 130.
Trust Results from Limitation of Trustee's Legal Title. —
The whole scope and design of the parties was to clothe L
with the legal right to protect the wife in the separate es-
tate provided for her. Whatever estate it is necessary for
the trustee to nave in order to carry into effect this triparte
contract, the law confers upon him. Ordinarily, the trustee
is clothed with the legal estate, in terms, and his charac-
ter, as trustee, grows out of the limitations placed upon his
legal title. Logan v. Goodall, 42 Ga. 95, 114.
Takes no Title Where Nothing to Do. — Where a deed
made no provisions for anything for the trustee to do to or
for the estate of the remainderman, he took no legal title
to the remainder under the principle of this section. Ver-
noy v. Robinson, 133 Ga. 653, 66 S. E- 928.
A deed of trust which creates a separate estate in the
wife, and which imposes no duty upon the trustee except
that of merely holding the legal title, gives to the wife the
right to the possession and use of the trust property. Wade
v. Powell, 20 Ga. 645.
Powers Extended to Life Estate Only. — J. W. was made
trustee of S. P. alone, and his powers extended only to her
life estate, and continued only to her death under this sec-
tion. Bull v. Walker, 71 Ga. 195.
A trust for the separate use of a married woman witn
the remainder at her death to her children vested life es-
tate only in trustee. Luquire v. Lee, 121 Ga. 624, 49 S. E.
834; Smith v. McWhorter, 123 Ga. 287, 51 S. E- 474; Tillman
v. Banks, 116 Ga. 250, 42 S. E. 517. Where authorities are
collated.
Alternative Remainder Not in Trust. — A deed made in
1857, conveying realty to a man in trust for his wife and
children, to be held by him in trust during his natural life,
and upon his death to go to them or the survivor or
survivors of them in fee simple; or should he survive, to
him in fee simple, free from the trust; but so long as anj^
of the cestuis que trust survive, to be held by him as their
trustee, passed to him in trust the legal estate for the term
of his life and no longer under the principles of this section;
the alternative remainder in his family or himself being a
legal remainder not covered by or embraced in the trust.
East Rome Town Co. v. Cothran, 81 Ga. 359, 8 S. E. 737.
Possession of Property. — The trustee is entitled to the
possession of the property, to enable him to perform the
trust. Davis v. Hunder, 23 Ga. 172.
Collector Not Trustee Under Terms of Section. — Where
one takes the notes of another for collection but does not
pay over the money, the owner does not rank as a cestui
que trust having a prior lien, under this section, on the
estate, for a trust relationship has not been created within
the meaning of this section. Fiedeman v. Fertilizer Co.,
109 Ga. 661, 34 S. E. 999.
Title Not Enlarged by Power of Disposition. — Though an
executor holds land with power of disposing of the fee, he
does not have title to the fee when the person he repre-
sents had only a life estate. Satterfield v. Tate, 132 Ga.
256, 64 S. E- 60.
§ 3776. (§ 3192.) Relief of sureties. — Sureties on
bonds of trustees may be relieved from liability
by the judge of the superior court, either at a
regular term or at chambers, upon the same
terms and conditions as prescribed for the relief
of sureties on the bonds of guardians by the
ordinary. Acts 1859, p. 53.
As to relief of surities of guardian, see § 3052.
§ 3777. (§ 3193.) Compensation. — Trustees,
for their services, shall be entitled to the same
compensation as guardians for similar services.
For the compensation of trustees, see § 3071 and note.
See also §§ 4062, 4067 and notes, inasmuch as guardians
receive the same commissions as executors.
§ 3777(1). Bond may be required though ex-
cused by creator or trust. — In all cases where a
trust for minors, or persons sui juris, or spend-
thrifts, has been created by will, deed, contract
or otherwise, and the trustee is by said creative
instrument excused from giving bond, or is not
required to give bond, the cestui que trust, or
his personal or property guardian, may, as a
matter of protective right, require a good and
solvent bond to be given by said trustee, pay-
able to the ordinary of the county of said cestui
que trust's residence, in double the value of the
personal property held by said trustee. Acts
1918, pp. 234, 235; 1919, p". 384.
Editor's Note. — It is probable that the legislature in-
tended to provide for bonds for trustees for persons non
sui juris in this section rather than for those sui juris.
[ 1074 ]
§ 3777(2)
TRUSTS AND TRUSTEES
§ 3779
§ 3777(2). Rule nisi and rule absolute; ap-
proval of bond; suit for breach. — Upon appli-
cation of the cestui que trust by petition to the
Superior Court of the county of the residence
of such trustee, setting forth the trust, and the
terms on which the same is held, the judge of
said court shall issue a rule nisi directed to the
said trustee, requiring him to answer, under
oath, the value of the personalty held by him,
together with an itemized statement thereof,
and upon it being made to appear upon the
hearing that such trustee has in his possession
personal property, of which the cestui que trust
is the beneficiary, and that the trustee is acting
as such without bond, the court shall pass a
rule absolute, requiring the trustees within
twenty days to execute and deliver to the ordi-
nary of the county of the residence of the cestui
que trust a good and sufficient bond, to be ap-
proved by the ordinary, in double the value of
the personal property so held by said trustees,
conditioned to faithfully account for the trust
property in his hands, together with the income
therefrom, in conformity to the terms of the
trust. And for any breach of such bond, suit
may be maintained in the name of the ordinary
suing for use of the beneficiary of said trust. A
copy of said petition, together with the rule nisi
thereon, shall be served upon the trustee not less
than ten days, nor more than thirty days, before
the hearing thereon. The hearing on said rule
nisi may be before the judge, either in open
court or at chambers, and may be had either in
term time or vacation. Acts 1918, pp. 23-1, 235;
1919, pp. 384, 385.
§ 3777(3). Applied to all trusts.— The provi-
sions of this Act shall apply to all trusts hereto-
fore created, as well as any that may hereafter
be created in this State. Acts 1918, pp. 234, 236.
§ 3777(4). Removal; delivery to new trustee;
contempt. — Should the said trustee fail to com-
ply with said rule absolute, and file and have
approved said bond within the time stated, then
he shall be removed from said office of trustee
by the judge of the Superior Court, and a new
trustee shall be named by the judge, who shall
give bond as ordered, and the judge of the said
court shall order the removed trustee to imme-
diately deliver to such new trustee the trust prop-
erty in his hands. For a failure to comply with
this order, he shall be held and adjudged in con-
tempt of the court. Acts 1918, pp. 234, 236.
§ 3777(5). Costs and premium. — The costs of
the county receiving, filing, approving and re-
cording said bond shall be entitled to a fee of two
trustee from the funds in his hands as such trus-
tee. Acts 1918, pp. 234, 236.
§ 3777(6). Ordinary's fee.— The ordinary of
the county receiving, filing, approving and rec-
ording said bond shall be entitled to a fee of two
dollars, to be paid by said trustee. Acts 1918,
pp. 234, 236.
§ 3777(7). Record. — The petition, answer and
orders of the Superior Court heretofore pro-
vided for shall be recorded in full on the minutes
of said court, and the bond provided for shall be
recorded by the ordinary approving the same on
[10
the minutes of his court. Acts 1918, pp. 234,
236.
§ 3777(8). Annual returns; removal on default.
— The said trustee shall annually on or before
the first day of May, after the giving of said
bond, file with the ordinary of the county where
said bond is recorded, a full statement of all
receipts and disbursements, and a full statement
and schedule of all property in his hands as such
trustee, which report shall be verified by the
oath of said trustee. And upon failure to so file
the said statement he shall be removed by the
judge of the superior court of the county of his
residence, upon petition of the cestui que trust,
or his personal or property guardian, and a new
trustee shall be appointed by said court, and said
court shall order the old trustee to deliver to
said new trustee all property of the estate in
his hands, and for failure so to do, said old
trustee shall be held and adjudged in contempt
of court. Acts 1918, pp. 234, 236.
§ 3777(9). Compensation unchanged. — Noth-
ing in this Act shall be construed to change,
modify or increase the compensation of trustees,
either as now provided by law or as may be
provided for by the instrument creating the
trust. Acts 1918, pp. 234, 237.
§ 3778. (§ 3194.) Vacancies, how filled.— Every
church or religious society is authorized and em-
powered to fill all vacancies which may happen
in any trust by death, removal, expulsion, or
otherwise; and when any vacancy shall be filled,
the same shall be certified under the hand or
hands of the person or persons presiding in the
said society, and according to the form of
government or discipline practiced by said
church or society, which certificate shall express
the name of the person appointed to fill the
vacancy, and the name of the person in whose
place he shall be appointed; and the said certifi-
cate being recorded in the office of the clerk of
superior court of the county in which the land
lies, the person so appointed to fill such vacancy
shall be as fully vested with such trust as if a
party to and named in the original deed. Act
1805, Cobb, 899, 900.
As to manner of conveying property to churches, schools,
etc., see § 2826. As to whom trustees for same liable, see
§ 2827.
ARTICLE 3.
Of Trusts and Trustees.
§ 3779. (§ 3195.) Trusts.— Trusts of every kind,
not generally cognizable at law, are peculiar sub-
jects of equity jurisdiction.
As to jurisdiction in general, see 11 Cum. Dig. 211; 12
Knc. Dig. 404.
Actions on Breach of Bonds. — Courts of law have jurisdic-
tion of actions against trustees and their bondsmen for
breaches of their bonds. Haddock v. Perham, 70 Ga. 572.
Appointment of Trustees. — Where the original trustees are
dead and no provision is made for the appointment of
successors, the superior court, upon petition by the benefi-
ciaries, sitting in equity may appoint such trustees, under
this section. Thompson v. Hale, 123 Ga. 305, 51 S. E.
383.
Accounting of Trustees. — Courts of equity have jurisdiction
to compel trustees to account for the trust funds in their
hands, especially when the accounts are complicated. Kea-
ton v. Greenwood, 8 Ga. 97, 106.
Same — Where Fund in Hands Unknown. — A court of equity
75 ]
§ 3780
TRUSTS AND TRUSTEES
§ 3780
will maintain jurisdiction to enforce a settlement by a
trustee, with his cestui que trust, where they are unable
to prove what amount belonging to them is in his hands,
and pray for a discovery and account. Dill v. McGehee,
34 Ga. 438.
Same— To Cestui Que Trust's Administrator.— Where rents,
issues and profits, arising from trust property, have come
into the hands of the trustee, during the lifetime of the
cestui que trust, and were unaccounted for at the time
of his death, his administrator is entitled to demand an
account and settlement of the trustee. Brown v. Ricks,
30 Ga. 777.
Trustee Failing in Duty.— If the trustee omits to act when
required by duty to do so, or is wanting in necessary care
and diligence in the due execution of the trust which he
has undertaken, a court of equity will interpose. Jones v.
Dougherty, 10 Ga. 273.
Interference with Discretionary Power. — "In the case of
trusts cognizable in a court of equity only, if the trus-
tees have a discretionary power, to be exercised accord-
ing to their judgment, a court of equity will not inter-
fere to control the trustees acting bona fide in the exer-
cise of their discretion." Semmes v. Mayor, 19 Ga. 471,
489.
Execution of Trust Where Beneficiaries Fail.— Where a will
directed the executrix to spend such sum on certain graves
as certain daughters should agree, if the daughters fail
to come to an agreement, the executrix may proceed in a
court of equity to have the trust executed, for trusts of
every kind which are not cognizable at law, are peculiar
subjects of equity. Collins v. Collins, 157 Ga. 85, 90, 121
S. E. 218.
Settlement of Trust Estate Upon Termination.— A court of
equity has jurisdiction to settle a trust estate at the time
provided for the termination of the trust. That a court
of law may have concurrent jurisdiction will not oust that
of a court of equity. Park v. Park, 65 Ga. 747.
Where Trustee Dies. — Where a trustee dies with trust
funds in charge, equity may restrain the administrator
from controlling the property and will decree a convey-
ance to the cestui que trust. Perkins v. Keith, 33 Ga.
525; Knight v. Knight, 75 Ga. 386, 392.
Assignments for the benefit of creditors, are trust relation-
ships and objects of chancery jurisdiction. Jones v.
Dougherty, 10 Ga. 273.
The creditors in an assignment for the benefit of cred-
itors are cestui que trusts and are entitled to equitable re-
lief in case of mismanagement, waste, etc. Cohen & Co.
v. Morris & Co., 70 Ga. 313.
Executors are trustees, and are amenable to a court of
chancery, for the faithful discharge of their trust. See
§ 3891. Johns v. Johns, 23 Ga. 31.
Persons Exercising Corporate Powers. — Persons exercising
the corporate powers of a corporation may, in their char-
acter as trustee, be held liable in a Court of Chancery,
if or a fraudulent breach of trust. Colquitt v. Howard, 11
Ga. 556.
Charitable and Religious Trusts. — Equity has jurisdiction
over charitable and religious trusts and uses it in a particu-
lar and special manner. See §§ 4603, 4605, 4606. Harris
v. Pounds, 64 Ga. 122, 123.
Quo Warranto Inadequate Remedy. — A quo warranto, does
not afford an adequate remedy to cestui que trusts, who
charge the trustee of an incorporated academy with breaches
of trust. Dart v. Houston, 22 Ga. 506.
§ 3780. (§ 3196.) When court will declare one a
trustee. — Whenever the circumstances are such
that the person taking the legal estate, either
from fraud or otherwise, can not enjoy the bene-
ficial interest without violating some established
principle of equity, the court will declare him <x
trustee for the person beneficially entitled, if such
person has not waived his right by subsequent
ratification or long acquiescence.
Cross References. — For a comprehensive treatment of im-
plied trusts, see 11 Cum. Dig. 175-181; 12 Enc. Dig. 320-
329. As to a resulting trust, see § 3735. As to one de-
clared trustee because of fraud, see § 3739 (2).
When Agent Declared Trustee. — The relation of principal
and agent is a fiduciary one and the latter can not take
advantage and profit for himself out of the relationship,
or out of knowledge thus obtained, to the injury of his
principal; and the agency being established, the agent will
be held to be a trustee as to any profits, advantages, rights,
or privileges under any contract made and obtained within
the scope and by reason of such agency; and where the
agent invests such profits in property or places the same
[ 1076 ]
to his credit in a bank, he will be held to hold the same
as trustee for the principal, and the latter can maintain
in a court of equity an action to trace such profits into
such investments, and to enjoin the agent or his donee
from selling, disposing of, or encumbering any such profits
or any property in which the same have been invested un-
der the principles of this section. Forlaw v. Augusta Na-
val Stores Co., 124 Ga. 261 (6), 52 S. E. 898; United
States v. Carter, 217 U. S. 286, 30 Sup. Ct. 515, 54 L.
Ed. 769, 19 Am. Cas. 594; Stover v. Atlantic Ice, etc.,
Corp., 154 Ga. 228, 113 S. E- 802.
Where Fraud Perpetrated. — In other words this section-
provides that the law in such case as enumerated implies
a trust, and holds the person having the legal title to be a
trustee for the person beneficially interested. Implied
trusts as provided in § 3732 are such as are inferred by
law (from the nature of the transaction, or the conduct of
the parties, and as provided in § 3739 (2) a trust is im-
plied "where, from any fraud, one person obtains the title
to property which rightly should belong to another." Rives
v. Lawrence, 41 Ga. 283, 288.
Same — Must Be Writing. — "In order that the doctrine of
trusts ex maleficio with respect to land may be enforced
under any circumstances, there must be something more
than a mere verbal promise, however unequivocal, other-
wise the statute of frauds would be virtually abrogated;
there must be an element of positive fraud accompanying
the promise, and by means of which the acquisition of the
legal title is wrongfully consummated." Brown v. Doane,
86 Ga. 32, 38, 12 S. E. 179.
Joint Tenant Held Trustee. — Where lands are purchased by
a mother and son, each paying half of the purchase-money
under an agreement between them that the son shall rep-
resent the mother in closing the contract of purchase, and
take a deed to them jointly, and the son procures a deed to-
the land but causes it to be made to himself alone, an im-
plied trust will arise in favor of the mother to an undi-
vided one-half interest in the land. Pound v. Smith, 146
.Ga. 431 (4), 91 S. E. 405; Harris v. Harris, 154 Ga. 271,
114 S. E. 333.
Trust Property Exchanged for Other. — Where a man sold,
the property of his wife and children for other property, the
other property became immediately impressed with a trust
in their favor under this section. Adams v. Jones, 39 Ga.
479; Brown v. Doane, 86 Ga. 32, 12 S. E. 179; Hurst v.
Commissioners, 110 Ga. 33, 35 S. E- 294; McKinney v.
Burns, 31 Ga. 295; Holmes v. Holmes, 106 Ga. 858, 33 S.
E. 216; Williams v. Smith, 128 Ga. 306, 310, 57 S. E. 801.
Purchaser with Another Fund Held Trustee. — When the
widow bought the land in question with the money of her
children, taking the title in her own name, the beneficial in-
terest in the property at once vested in them, and she held
as their trustee, though as one who was so wrongfully.
Dodd v. Bond, 88 Ga. 355, 358, 14 S. E. 194.
When two persons receive a sum df money belonging to
a minor and invest the same in land, taking title to them-
selves, they have no beneficial interest in the property, but
hold it as trustees for the minor under this section, and
it is not subject to an execution issued against such per-
sons as principal and surety on a county treasurer's bond,
notwithstanding at the time the bond was executed such
trustees were the apparent owners of the land. Hurst v.
Comm'rs, 110 Ga. 33, 35 S. E. 294.
Same — Substitution of Own Funds — Where a trust would
be implied from payment of the purchase-price of land with
money furnished by another person, a trust will be im-
plied, if after receiving the money to buy the land the
recipient uses the money for other purposes and, substi-
tuting his own money for that furnished to him, pays for
the land, intending to make the payment for the other per-
son. Banks v. Bradwell, 140 Ga. 640, 79 S. E. 572.
Same — Purchase Money Paid at or before Purchase. — "A
resulting trust which rises solely from the payment of the
purchase-price is not created, unless the purchase-money is
paid either before or at the time of the purchase. Trusts
implied from the payment of the purchase-money or a part
thereof must result, if at all, at the time of the execution
of the conveyance." Hall v. Edwards, 140 Ga. 765, 767, 79
S. E. 852.
Purchaser Preventing Bidding. — Where a purchaser, by
making untrue representations preventing others from bid-
ding, assumed to act as agent, or sustained a confidential re-
lation to the owner of the land, equity will impress, for the
latter's benefit, a constructive trust on the land, on tender
of the purchase-money. Carr v. Graham, 128 Ga. 622, 57
S. E. 875.
If -a purchaser, by making untrue representations pre-
venting others from bidding, sustained no vicarious or con-
fidential relation to the owner of the land, nor by his con-
duct in the purchase of the land created such relation, his
fraud, though affording the owner the right to cancel the
§ 3781
TRUSTS AND TRUSTEES
§ 3782
sale, will not make him a trustee ex maleficio, so as to en-
title the owner to a recovery of the land without disaffirm-
ing the sale. Carr v. Graham, 128 Ga. 622, 57 S. E. 875.
§ 3781. (§ 3197.) Want of trustee. — A trust
shall never fail for the want of a trustee.
Cross References. — For a further treatment, see 11 Cum.
Dig. 186. As to the removal and appointment of trustees
at Chambers, see § 3744. As to substitution of trustee fail-
ing to act, see § 3747.
Appointment at Chambers. — This section declaring that ''a
trust shall never fail for the want of a trustee," the ap-
pointment of a necessary trustee could be made at cham-
bers, the same being a needful execution of the protective
powers of chancery over the estate created for the ben-
efit of the poor children of the city. White v. McKeon,
92 Ga. 343, 17 S. E. 283. See § 3741.
Appointment by Court for Educational and~Religious Trusts.
—A trust for the maintenance of a school will not fail
because of the failure of trustees; and when the office is
vacant with no provision for appointments the superior
court sitting in equity upon petition by the beneficiaries
will make the appointment. Thompson v. Hale, 123 Ga.
305, 51 S. E. 383.
Where a deed creating a religious and educational trust
provides that successive trustees shall be appointed by proper
authorities, when the office becomes vacant, the trust will
not fail because of there being no trustee but a court of
equity will appoint one. Harris v. Brown, 124 Ga. 310,
52 S. E. 610.
Successor for Assignee for Benefit of Creditors. — The resig-
nation of the assignee or a trust arising under general as-
signments for the benefit of creditors was not a revoca-
tion of the deed of assignment. The title having passed
into him, the trust should not be allowed to fail for the
want of a trustee. A successor will be appointed under
this section. McFerran, etc., Co. v. Davis, 70 Ga. 661.
Successor to Trustee of Particular Qualification. — Even
where the amount of the beneficial interest to be taken by
a cestui que trust is to be measured and determined by
the discretion of the trustee appointed by the creator of
the trust, a court of equity will not allow the trust to be
destroyed by the refusal of the person nominated as trus-
tee to accept the trust, or his declination or failure to ex-
ecute it, if, by any possibility, it is capable of execution
by the court. Prince v. Barrow, 120 Ga. 810, 48 S. E. 412.
Successor to Incapacitated Trustee. — Where a historical
society was incapable of executing the trust, a court of eq-
uity will appoint a capable trustee. Jones v. Habersham,
107 U. S. 174.
The trust being legal, and the cestui que trusts capable
of taking, the Chancellor will appoint the executors, or some
other fit and proper persons, to carry the trust into effect
in the place of a trustee who could not function. Walker
v. Walker, 25 Ga. 420.
Trustee for Afterborn Children. — Where, through ignorance
of the law, a donor failed to appoint a trustee for after-
born children, equity will entertain a bill praying for such
an appointment. Brewton v. Smith, 28 Ga. 442. But see
§ 3658 and note.
§ 3782. (§ 3198.) Limitation. — Subsisting trusts,
cognizable only in a court of equity, are not
within the ordinary statutes of limitation; but in
all cases equity will consider the lapse of time in
decreeing an account, and where, from it and
other circumstances, it would be inequitable, any
relief will be refused.
Cross References. — For a full treatment of limitation of ac-
tions and laches in regard to trusts, see 11 Cum. Dig. 215.
As to limitations in equity generally, see •§ 4369. As to
equity following the law generally, see § 4520. As to the
doctrine of laches generally, see § 4536. As to an account-
ing in equity, see § 4586.
Foundational Principle of Section. — As long as a person
who is in possession of the property of another, using the
same for the owner's benefit, recognizes the latter's own-
ership, no lapse of time will bar the owner from asserting
his title as against the person in possession. Before any
lapse of time will be a bar to the owner it must appear
that the person in possession has given notice, or there
must be circumstances shown which would be equivalent
to notice, to the owner that the person in possession claims
adversely to him. In such a case the statute will begin to
run from the date o.f such notice. Until the owner has
such notice he has the right to treat the posssession of the
other person as his own. Keaton v. Greenwood, 8 Ga.
97. This is the principle at the foundation of that fa-
miliar rule now embodied in this section, that "subsisting
trusts, cognizable only in a court of equity, are not within
the ordinary statutes of limitation," and "the trusts in-
tended by the courts of equity not to be reached or af-
fected by the statute of limitations are those technical and
continuing trusts which are not at all cognizable at law,
but fall within the proper, peculiar, and exclusive juris-
diction of this court." Teasley v. Bradley, 110 Ga. 497,
501, 35 S. E. 782.
Application to Trusts Not Only Cognizable in Equity. —
Although the rule of this section is applicable in terms
alone to cases of technical trusts which are cognizable only
in a court of equity, the principle upon which is is founded
is applicable in some cases where a technical trust had not
been created; the principle being that as long as one rec-
ognizes that property in his possession belongs to another,
the latter has the right to treat the possession as his own.
Teasley v. Bradley, 110 Ga. 497, 501, 35 S. E. 782.
Subserviency Prevents Running. — As long as a person who
is in possession of the property of another, using the same
for the owner's benefit, recognizes the latter's ownership,
no lapse of time will bar the owner from asserting his title
as against the person in possession. Jenkins v. Georgia
Inv. Co., 149 Ga. 475, 100 S. E. 635.
In the case of an implied trust, the person holding the
property in trust can never, while flying colors indicating
a trust, claim the advantage of the statute of limitations
as a bar to an action for accounting; but that upon a
change of condition that would show an adverse holding,
the statute would commence to apply. Garner v. Eank-
ford, 147 Ga. 235, 240, 93 S. E. 411.
Necessity of Notice to Start Statute. — Before any lapse o:
time will be a bar to the owner it must appear that the
person in possession has given notice, or there must be
circumstances shown which would be equivalent to notice
to the owner that the person in possession claims adversely
to him. In such a case the statute will begin to run from
the date of such notice. Until the owner has such notice
he has the right to treat the possession of the other per-
son as his own. Teasley v. Bradley, 110 Ga. 497, 501, 35
S. E- 782, 78 Am. St. R. 11, 113; Jenkins v. Georgia Inv.
Co., 149 Ga. 475, 100 S. E. 635.
Under the law existing in this state in 1859, where a mar-
ried woman received a gift of money, and the donor in
making the gift employed language showing an intention
that it should be for the separate use of the donee, and
after receiving the money the wife turned it over to her
husband, who by investment in other property mingled it
with his individual estate, the property became a separate
estate for the use of the wife with legal title vested in the
husband under an implied trust. Garner v. Lankford, 147
Ga. 235, 93 S. E. 411.
Assets in Hands of Distributees of Estate. — Where the
complainant's demand against the testator has been re-
duced to judgment against the executor after distribution,
on suit brought before the debt was barred, assets distrib-
uted to and still in the hands of devisees are not protected
by lapse of time or by the statute of limitations, receiving
this liability as a subsisting trust under this section, so
long as the judgment is in full force. Redd v. Davis, 59
Ga. 823.
Attorney and Client. — A subsisting, recognized and ac-
knowledged trust is not within the operation of the stat-
ute of limitations; but this rule applies only to those tech-
nical trusts which are cognizable alone in a court of eq-
uity; and the relation of an attorney to his client where
the attorney retains in his hands money collected for the
client does not constitute such a trust. See Southern State,
etc., Co. v. Cleghorn, 59 Ga. 782; Schofield v. Woolley, 98
Ga. 548, 550, 25 S. E. 769.
Fraudulent Promoters of Corporation. — Promoters of a
corporation, fraudulently inducing subscribers to take stock
in the corporation, do not stand in such fiduciary relation
to such subscribers as to exclude the operation of the stat-
ute of limitations from a suit by a stockholder against them
on account of the tfraud. Frost v. Arnaud, 144 Ga. 26, 85
S. E. 1028.
Relation between Corporation and Officers. — The relation
between a corporation and its director and general mana-
ger, who has full control of the business of the corpora-
tion is not technically that of trustee and cestui que trust,
but that of principal and agent. (See Southern Star Co.
v. Cleghorn, 59 Ga. 782.) At least, such a relation would
not be included among subsisting trusts, cognizable only
in a court of equity, which by this section are declared to
be without the ordinary statutes of limitations. Knowles v.
Rome Tribune Co., 127 Ga. 90, 92, 56 S. E. 109.
The relation of an officer to a corporation has been held
not to be such a technical trust relationship as came within
this section, declaring that subsisting trusts, cognizable only
in a court of equity, are not within the ordinary statutes of
limitations. Knowles v. Rome Tribune Co., 127 Ga. 90, 56
S. E. 109; Frost v. Arnaud, 144 Ga. 26, 31, 85 S. E. 1028.
[ 1077 ]
§ 3783
TRUSTS AND TRUSTEES
§ 3784
Right of Repurchase. — Trusts intended by the courts of
equity not to be reached or affected by the statute of lim-
itations are those technical, continuing trusts which are not
at all cognizable at law, but fall within the proper, peculiar,
and exclusive jurisdiction of courts of chancery. So where
X was purchaser and Y merely had the right of repurchase
no such relationship as contemplated by this section was
created. Franklin v. Lesser, 147 Ga. 77, 92 S. E. 890.
Stale Demand Controlled by Same Principles. — The same
principles apply to the objection that the claim is a stale
demand as are applied where one holds property as sub-
servient to another, admitting ownership in the other. Stan-
ley v. Reeves, 149 Ga. 151, 99 S. E. 9, 376; Jenkins v. Geor-
gia Inv. Co., 149 Ga. 475, 100 S. E. 635.
§ 3783. (§ 3199.) Relief in cases of trust— The
relief granted, in cases of trust, will always be so
moulded and framed as to render the trust effec-
tual, and secure the best interests of all parties.
Cross References. — For a further treatment of the enforce-
ment of trusts, see 11 Cum. Dig. 212; 12 Enc. Dig. 407.
As to power of court to mould verdict, generally, see § 5928.
As to the moulding of decrees, see § 5426. As to the
moulding of decrees in partition or sale, see § 5357. As to
protection of property devoted to certain religious purposes,
see § 2835.
Appointment of Trustees. — Where there are no trustees for
a school trust fund, and no provision for the appointment
either by grant or legislative act, a court of equity will take
jurisdiction upon petition by the beneficiaries and appoint
them in such manner as seems best for all parties con-
cerned. Thompson v. Hale, 123 Ga. 305, 51 S. E. 383.
Execution of Trust by Court. — In this case, if the daughters,
in disregard of filial love and piety and of their duty as
trustees, fail to execute this imperative power or discre-
tion, to fix the graves as requested, the court will imply
a trust, will put itself in the place of the daughters under
the principles of this section, and will exercise this power
by fixing these graves in a proper manner and at a rea-
sonable expense under all the circumstances. Collins v.
Collins, 157 Ga. 85, 90, 121 S. E. 218.
Moulded to Give Equitable Relief. — An equitable cause of
action may be instituted on the common law side of the
court, and the jury may find a verdict; and the judgment
rendered thereon may be so moulded and framed as to
give equitable relief in the case. Moore, etc., Co. v.
tampkin, 63 Ga. 748, 750.
Accounting Where Trust Resulted.— Two brothers, sup-
pressing bidding by stating that estate was being bought
for themselves and three brothers, are liable to account to
three brothers where they sell at big profit. Huff v. Huff,
32 Ga. 681.
Discretionary Beneficiary Becoming Trustee. — Where execu-
tors as trustees had a discretion to give husband the in-
come from wife's estate, the husband being appointed
trustee would not lay his estate liable for such income as
he received after appointment. Martin v. Barnard, 33 Ga.
520.
Regulating Equities between Prior Purchasers and Cred-
itors.— Where a deed was taken on trust property to secure
a bond debt and a portion was sold subject to the trust
lien to pay off the law judgment, if sold at a fair value,
the part sold could not be touched until other property
first applied to debt. Semmes v. Moses, 21 Ga. 439. .
§ 3784. (§ 3200.) Misapplying trust funds.— All
persons aiding and assisting trustees of any
character, with a knowledge of their misconduct,
in misapplying assets, are directly accountable to
the person injured.
For further treatment, see 11 Enc. Dig. 210; 12 Enc.
Dig. 294. As to lien on trustee's estate for trust funds,
see § 3773.
Acceptance of Personal Credit on Trust Note. — Where a
trustee holds a note belonging to the trust estate, and re-
ceives in payment thereof, wholly or partially, a credit al-
lowed "to himself on his own individual indebtedness, the
payment is not in behalf of the maker of the note, a good
payment to the trust estate, although the trustee is solvent
at time of such payment. May'nard v. Cleveland, 76
Ga. 52.
Retiring Guardian Substituting Personal Claims Against
Successor for Assets. — A guardian can not discharge his trust
by turning over to his successor debts due to himself in-
dividually from that successor; he must turn over the ef-
fects of the wards, or money in lieu thereof. And if he
take a receipt (from the second guardian in full of the ef-
fects of the ward when he has not in fact turned these
effects over but collected his own individual debt by the
settlement, and the successor became insolvent and unable
to respond to the wards, the first guardian will be held
bound in equity for the effects of the wards which came
into his hands, but never passed legally out of them to his
successor under this section. Manning v. Manning, 61
Ga. 138.
Bank Successors Liable for Prior Taxes. — Where a bank
owed taxes to the state and another bank took over the
assets and there was nothing left upon which to levy, the
receiving bank was deemed as trustee attempting to mis-
apply funds which rightfully should be applied to the
taxes and was liable for them under this section. Citi-
zens, etc., Bk. v. State, 151 Ga. 696, 108 S. E. 161.
Fraudulent Procurement of Funds by Cashier. — Where a
bank had a rule that none of its employees could become
indebted to the bank, and the cashier, desirous of buying
railroad stock, procured a third party to borrow from the
bank, buy the stock and pledge it for the debt, the trans-
action amounted to a misapplication of the funds of the
bank for which both were liable under the principles of this
section. Savannah, etc., Bk. v. Hartridge, 75 Ga. 149.
Aiders of Agent Liable. — That a trustee who diverts trust
property to his own use is liable to his cestui que trust
is clear. Persons who knowingly participate in the diver-
sion are also liable. Relatively to this rule, an agent who
fraudulently diverts to his own use property of his prin-
cipal is a quasi trustee. Shivers v. Palmer, 14 Ga. 342;
Bigham v. Coleman, 71 Ga. 176; Anderson v. Foster, 112
Ga. 270 (2), 273, 37 S. E. 426. If as a part of the
fraudulent conduct of T. he caused a title to the one-fourth
interest to be placed in M., without consideration, and
with knowledge of his fraud M. conveyed it to J., who,
with knowledge, conveyed it to a non-resident purchaser,
and T. received the proceeds, it would seem that, by con-
veying such interest, M. and J. were liable in an equita-
ble action to account to their principals along with T. Aus-
ley v. Cummings, 145 Ga. 750, 757, 89 S. E. 1071.
Executors Aiding Bound in Personal Not Representative
Capacity. — This section places a personal liability upon a
trustee misapplying funds and those assisting him. There-
fore where the executor of one estate paid a personal
judgment to the executor of another estate, out of the pro-
ceeds of the estate he represented to the knowledge of the
second executor, they are personally liable and the estates
they represent *can not be held liable, for this section does
not charge them in their representative capacity. Ander-
son v. Foster, 105 Ga. 563, 32 S. E. 373.
Directors Liable to Stockholders. — The directors and man-
agers of a corporation, who control and have charge of its
effects, are trustees ifor the stockholders, and both they and
others who, with the knowledge of their misappropriation,
aid them in diverting its property, would be liable to the
injured parties. Atlanta Real Estate Co. v. Atlanta Nat.
Bank, 75 Ga. 40.
Parol Agreement Unexecuted Not Aiding. — Where one
holding a second mortgage on trust property to secure the
individual debt of the trustee, enters into a parol agreement
with the trustee to buy in the property, when it is sold
under the first mortgage, for the benefit of the trust es-
tate, i. e., giving the trustee the right to redeem it within
a reasonable time by paying the purchase price, it not be-
ing alleged that the trustee made any effort to redeem (and
even if he had, the agreement being in parol could not be
enforced) there was no aiding or assisting in the misappli-
cation of trust funds on the part of the purchaser. Ray v.
Union Sav. Bank, 136 Ga. 745, 72 S. E. 26.
Application by Purchaser to Trustee's Debts After Sale. —
Where one who had a personal claim against a trustee and
a second mortgage against his trust estate to secure it,
prior to the sale under the first mortgage, agreed with one
trustee in parol to protect the trust estate by purchasing at
the sale and giving the trustee a right to redeem within a
reasonable time, but, after having purchased in December,
the property for the amount of the first mortgage that be-
ing a little over half the market value in March, entered
into an agreement with the trustee whereby the difference
between the market value and the purchase price on the sale
was to be applied to the individual indebtedness of the trus-
tee, it not being alleged that this agreement was made prior
to the sale, there was no aiding or assisting in the misap-
plication of trust funds by such purchaser, because, having
acquired title to the property in a legal manner, he could
do anything with it he pleased after the purchase was made.
The cestui que. trusts had no interest in it at that time.
Ray v. Union Sav. Bank, 136 Ga. 745, 72 S. E. 26.
I Assisting Husband to Misapply. — If the husband held the
wife's money, not as a loan, but for her, he was her trus-
tee, and whosoever helped him to misapply it to the hus-
band's own debt, held what he got as her trustee too, and
[ 1078 ]
§ 3785
CLAIMS AGAINST TRUST ESTATES
§ 3786
•when traced to his land, is liable therefor. Maddox v. Ox-
ford, 70 Ga. 179, 184.
Persons Aiding Jointly and Severally Liable.— The law holds
all persons aiding or assisting trustees of any character,
with a knowledge of their misconduct, in misapplying assets,
directly accountable to the party injured, and persons thus
wronged may proceed against the trustees and their coad-
jutors jointly or severally at their option. Hickson v.
Bryan, 75 Ga. 392.
Taking Mortgage with Notice of Trust. — Where one
knowingly takes a second mortgage on trust property to se-
cure an individual indebtedness of the trustee, but does not
act upon it, it does not follow therefrom that he is guilty
of aiding in the misapplication of trust funds merely be-
cause the existence of such mortgage prevents the trustee
from selling the property so as to realize a surplus above
the amount of the first mortgage, or from borrowing
money with which to pay it. In this transaction there was
no misapplication of trust funds within this section, nor did
the company receive any of the trust funds. Ray v. Union,
etc., Bank, 136 Ga. 745, 72 S. E. 26.
Failing to Enforce Mortgage for Personal Security. — The
acceptance of a mortgage on trust property to secure a
personal indebtedness of the trustee with knowledge of the
same is an act aiding in misapplying trust funds, but where
the mortgage was never acted upon, it being a legal nullity
in the hands of the mortgagee, no harm came to the cestui
que trusts and therefore there in fact occurred no misap-
plication through this transaction; and hence there is no
liability on the part of the defendant under this section.
Ray v. Union, etc., Bank, 136 Ga. 745, 72 S. E. 26.
When Deed is Sufficient Notice.— Where three executors
caused the lands to be sold and procured a person to buy it
in, who immediately made a deed to them, and one of them
deeded his interest to another, the deed reciting that it was
the same land bought by the executors with the "proceeds
of the sale of certain property" of the testator's, there is
an aiding in a misapplication of trust funds for which they
are accountable. Inman v. Foster, 69 Ga. 390. (See the
note from this case under § 3785.
Where a father conveyed property to himself as trustee
Cor his minor daughter, and later conveyed to the plaintiff
in payment of an individual debt, the plaintiff by accepting
the deed made by the trustee is charged with notice of the
trust and is a party to the misapplication of trust funds for
which he is liable under this section. Cohen v. Parish, 105
Ga. 339, 31 S. E- 205.
Transferee Charged with Notice. — Where a trustee used
trust funds to purchase property and then conveyed it to
secure an individual indebtedness to M. who had notice, and
M. transferred the" note to X. without legal assignment, M.
holds legal title; and though X. has an equity in the prop-
erty, he is subrogated to the rights of M. and is therefore
affected with notice of the misappropriation for which M.
is liable under this section. Planters Bk. v. Prater, 64 Ga.
610, 615.
Insolvency of Trustee Immaterial. — It is not necessary, in
order to charge the person aiding and assisting the trustee
in the misappropriation, to show that the trustee is insolv-
ent. Anderson v. Foster, 112 Ga. 270, 37 S. E. 426.
Party Reaping No Benefit Immaterial. — One who aids and
assists a trustee in misapplying trust funds, with knowledge
of his misconduct, is directly accountable to the person in-
jured by such misapplication, although the person thus as-
sisting the trustee does not himself reap the fruits of the
misappropriation but pays the fund over to another whom
he represents. In such a case the person injured by the
misappropriation may bring a separate action against each
of the persons through whose hands the fund has passed,
or join them all in one suit. Anderson v. Foster, 112 Ga.
270, 37 S. E. 426.
Right of Action Against Receiver Immaterial. — That the
person injured by the misappropriation may have an action
<for money had and received, against the person to whom
the fund was paid, will not preclude him from bringing an
action against the person aiding the trustee in the misap-
propriation, for the tort thus committed. Anderson v.
Foster, 112 Ga. 270, 37 S. E. 426.
§ 3785. (§ 3201.) Tracing assets.— When assets
are misapplied and can be traced in the hands of
persons affected with notice of the misapplica-
tion, the trust attaches still to the assets, and
equity will aid in restoring them to their legiti-
mate purpose. A creditor of an estate may fol-
low assets in the hands of legatees or distributees,
though they receive them without notice.
Cross Refeiences.— For further treatment, see 11 Enc. Dig.
210; 12 Enc. Dig. 294. As to liability of trustee's estate
for trust funds, see § 3773. As to following trust funds,
see § 3768. As to payment of debt by distribution, see §
3998. As to payment of debts out of deceased's estate, see
§ 3912. As to creditor reaching equitable assets, see § 4601.
Wrongful Conveyance — Priority of Claim. — Where a trus-
tee wrongfully conveyed land in which he had invested funds
of the trust estate, for the purpose of securing an indi-
vidual debt, to one who took with full notice thereof, the
cestui que trusts could follow the funds, and take the land
bought with their money, or enforce their lien thereon. A
sale of the land having been ordered, the claim of the cestui
que trusts for the principal and interest of their fund should
be satisfied before that of the creditor. See 12 Enc. Dig.
371, 373-4. Planters' Bk. v. Prater, 64 Ga. 610.
Beneficiary May Affirm or Reject Unauthorized Investment.
— Whenever trust assets are misapplied and can be traced
to the hands of a person affected with notice, the trust at-
taches, and equity will aid in restoring them to their legiti-
mate purpose. The beneficiary of a trust may follow the
funds wherever they can be traced, and has the option of
affirming or rejecting an unauthorized investment by the
trustee. Knight v. Knight, 75 Ga. 386.
Where Trustee Disposes of Property by Will. — Disposition
of trust property by will, by a testator who was trustee, is a
conversion of the property, but it may be followed by cestui
que trust into the hands of the executor. Arline v. Mil-
ler, 22 Ga. 330.
Where Property Converted to New Form. — If the trustee
converts the trust property from the form in which it is
into some other form, the cestui que trust has the right to
follow the property to the new form. Hampton v. Hamp-
ton, 18 Ga. 513.
Tracing into Dissolved Partnership. — Where a guardian
used the funds of his ward in a partnership, upon their being
traced into the hands of a surviving partner and hence into
the hands of an assignee for creditors, the ward has a claim
prior to all other creditors, even though assignee had no
notice. Carter v. Lipsey, 70 Ga. 417.
Children May Trace to Extent of Interest. — The property
left by K at his death constituted a fund which his chil-
dren, to the extent of their interest therein, had the right
to follow wherever it could be traced. Dodd v. Bond, 88
Ga. 355, 358, 14 S. E. 194.
Remaindermen Following Trusts — If the trustee invest the
trust funds in his own name, the remaindermen may fol-
low them as in other cases of trust. Cunningham v. Schlev,
41 Ga. 426.
When Deed Sufficient Notice. — Where the deed refers to
the representative fiduciary relationship expressly, it is suf-
ficient notice under this section. Inman & Co. v. Foster,
69 Ga. 385.
Not Applicable Where Bank Failed to Remit Collection. —
The mere fact that a bank to which a note was sent for
collection collected the money due on the note and, in-
stead of remitting, used the same in its own business is not
sufficient, upon its insolvency, to impress a fund realized by
its receiver, by converting its assets into cash, with a trust
for the payment of the money so collected and used. Ober
& Sons Co. v. Cochran, 118 Ga. 396, 45 S. E. 382.
Creditors Tracing Assets in Distributees. — Where a person
dies owing a debt, his creditor may in equity follow assets
left by such person in the hands of a distributee, and where
the assets received by the distributee are sufficient to pay
the debt, the creditors may obtain a personal judgment
against the distributee for the amount of his debt. Cald-
well v. Montgomery, 8 Ga. 106; Morrison v. Fidelity, etc.,
Co., 150 Ga. 54, 102 S. E. 354.
A creditor can follow assets into the hands of a distrib-
utee, with proper pleadings for that purpose, as well in a
court of law as in a court of equity, but if he elect to pro-
ceed in the former court, he must allege and prove the
same substantial facts as would be required to entitle him
to relief in the latter. As to requisite facts, see Caldwell v.
Montgomery, 8 Ga. 106; Johnson v. Lewis, 8 Ga. 460, 462;
Justices v. Moreland, 20 Ga. 145; 3 Kelly, 132; Scranton v.
Demere, 6 Ga. 92. Jones v. Jarker, 55 Ga. 12.
Distributee's Notice of Debt Immaterial. — This section ap-
plies to distributees whether they had notice of the debt or
not and a creditor of the estate may collect the debt out
of them. Chamblee v. Atlanta, etc., Co., 131 Ga. 554, 62
S. E. 1032.
ARTICLE 4.
Claims Against Trust Estates.
§ 3786. (§ 3202.) Claims against a trust estate,
etc. — Any person having a claim against any
trust estate for services rendered to said estate, or
for articles or property or money furnished for
[ 1079 ]
§ 3786
CLAIMS AGAINST TRUST ESTATES
§ 3787
the use of said estate, or where a court of equity
would render said estate liable for the payment
of said claims, may collect and enforce the pay-
ment of such claim in a court of law. Acts 1855-6,
p. 228.
For further treatment of liability of trust estate at law,
see 11 Cum. Dig. 210, 211; 12 Enc. Dig. 399, 404. As to
liability of church edifice for sale, see § 2834.
Section Changes Law.— It would seem that trust property
could only be reached to pay trust debts in equity before
the Act of 1855-6; Printup v. Trammel, 25 Ga. 240; but that
act furnishes a complete remedy at law. It is quite broad
and provides that "where a court of equity would render trie
estate liable for the payment of a claim," the claimant could
enforce and collect it in a court of law. Moore, etc., Co. v.
Lampkin, 63 Ga. 748, 751.
Sections Furnish Adequate Remedy. — On the subject of
trusts and the mode of enforcing relief against trust estates
justly indebted to those having claims upon them, our law
is plain and furnishes a simple and ample remedy. This
remedy is furnished by the Act of 1855-6, pamp. laws of
Ga., 1855-6, p. 228, and is codified from § 3786 to 3792 of
the Code, inclusive. Moore, etc., Co. v. Lampkin, 63 Ga.
748, 751.
Law Strikes at Corpus — Equity at Income. — In moving
against trust estates in behalf of creditors, courts of law,
acting merely as such under this and the following sections,
strike mainly at the corpus (Code, § 3377, et seq.), but
equity, sparing the corpus, will control and administer the
income to liquidate debts properly incurred for expenses.
Wylly v. Collins & Co., 9 Ga. 223. This difference of
method in the two courts fits the circumstances of the
present case, and furnishes, of itself, a sufficient ground
for retaining the bill instead of sending the complainant
into a court of law. Kupferman v. McGehee, 63 Ga. 25C,
257.
Section Not Limited to "Claims for Services," etc. — This
entire section simply means that any person having a valid
claim against a trust estate may collect and enforce the
payment of the same without resorting to a court of eq-
uity, and the section does not limit the liability otf trust es-
tates to the payment of such claims only as are indicated
by the words "for services rendered to said estate, or for
articles, or property, or money, furnished for the use of
said estate." Miller v. Smythe, 92 Ga. 154, 157, 18 S.
E. 46.
Enforcement of contractor's Lien for improvements of trust
estate is authorized by this section. Williams v. Chatham,
etc., Co., 13 Ga. App. 42, 78 S. F- 869.
Enforcement of Claim for Supplies. — If the supplies were
furnished by the plaintiffs for the use and benefit of the
trust estate, that estate is liable therefor, and their rem-
edy to enforce the payment of their claims against the trust
property is provided for by this and the sections up to
§ 3791, inclusive. Taylor & Co. v. Clark, 56 Ga. 310, 311.
Enforcing Rental Contract. — Where a trustee, duly au-
thorized, rented a store belonging to the trust estate, and
in the contract of rental agreed to keep the shelving in the
store in thorough order and repair, the trust estate is liable
in an action at law for damages occasioned by his failure
so to do. Miller v. Smythe, 92 Ga. 154, 18 S. F. 46.
Proceeding Against Homestead. — After the setting apart of
a homestead, if it is desired to sue and obtain a judgment
which will bind it, the pleadings should show the grounds of
such liability. The homestead is in the nature of a trust
estate, and proceedings against it should be shaped accord-
ingly. Wilder & Son v. Frederick, 67 Ga. 669.
Sale of Church Edifice for Pastor's Salary.— Trust prop-
erty of an unincorporated church in the hands of trustees
can be subjected for a debt duly incurred to the pastor for
salary and rent of parsonage, and, in the absence of other
property, the church edifice and site in the hands of trus-
tees can be subjected for such a debt. Kelsey v. Tackson,
123 Ga. 113, 50 S. F. 951.
Action Against Trustees of Church. — Although an actiori
can not be brought by or against an unincorporated church
as an entity (Kelsey v. Jackson, 123 Ga. 113, 50 S. F. 951),
nevertheless, when it appears, that the title to certain trust
property is in named trustees, though they appear to rep-
resent an unincorporated religious association, a proceeding
to foreclose a mortgage executed thereon by them, in order
to subject the property to a debt for which it is liable,
may be brought under this section, and to such action the
trustees are the only necessary parties. Kelsey v. Jack-
son, supra, citing Josey v. Union Loan, etc., Co., 106 Ga.
608, 32 S. F. 628; Holmes v. Bankston, 149 Ga. 668, 101
S. F. 792.
Foreclosure of Mortgage on Religious Property. — Where
title to trust property is in trustees who appeared to repre-
[ 1080 ]
sent an unincorporated religious institution and they exe-
cuted a mortgage thereon, a proceeding to foreclose and
subject the property to payment may be brought under
this section and the trustees are the only necessary parties.
Langford v. Mt. Zion Baptist Church, 22 Ga. App. 696,
97 S. F. 102.
Supplies to Wife Where Husband Fails. — Where there was
a trust-estate, for the wife of A, and articles were furnished
to A and used by him in the support of his wife and family,
the law will not presume that the wife of A is in want,
and charge her trust-estate with the articles simply be-
cause it is proven that the trustee has not supplied her.
Leonard v. Powell, 41 Ga. 598.
Payment of Taxes at Instance of Executor. — If the widow
were a life tenant, the executor having no means with
which to pay taxes and make repairs, and the life tenant
being unable to do so, if another person advanced money
for this purpose, at the instance and with the approval of
the executor, it would be a charge against the estate which
a court of equity would enforce, it being a, trust estate and
the title being in the executor. Griffin v. Fleming, 72 Ga.
697.
Property Being Land Did Not Restrict Suit to Superior
Court.— By this section (Civil Code of 1895, §§ 3202 et seq.),
trust estates are made liable to suits in courts of law to
collect and enforce the payment of claims against them for
services rendered, or for property or money furnished for
their use, to the same extent as they would be rendered lia-
ble in courts of equity, and that the trust property described
in the declaration consisted of realty, did not make the ac-
tion such a suit respecting the title to land as could only be
brought in the superior court. Beckwith v. McBride &
Co., 70 Ga. 642. See also, Williams v. Chatham, etc., Co.,
13 Ga. App. 42, 45, 78 S. F. 869.
Executory Estate Liable. — Where judgment was obtained
in accordance with this and the following section, the dec-
laration containing allegations showing that the debt sued
upon was binding upon the estate, the trust being execu-
tory, the trust estate and the cestuis que trust were bound
by the judgment. Clark v. Flannery, 99 Ga. 239, 25 S. E.
312; Riggins v. Adair, 105 Ga. 727, 730, 31 S. E. 743.
Service on Beneficiaries. — The statute (neither this section,
3787 or 3790) nowhere requires service upon the bene-
ficiaries in the suit against the trustee. Sanders v. Hous-
ton Guano, etc., Co., 107 Ga. 49, 55, 32 S. E. 610.
What Pleadings Must Show. — A claim against a trust es-
tate may be enforced at law, but the plaintiff must make,
by his pleadings and proof, a case in which a court of eq-
uity would administer the relief prayed for. He must es-
tablish the existence of a trust estate, of what it consists,
and the specific facts that render it liable for the debt.
Vason v. Gardner, 70 Ga. 517. For further treatment of
pleading, see 1 Cum. Dig. 214; 12 Fnc. Dig. 410.
Charge Where Case Turns on Expressed Contract. — A
trust-estate is ordinarily liable for necessaries for its pro-
tection and preservation, and, to the extent of the income,
for necessaries for the use of the beneficiaries who are in
want, unless the trust-deed otherwise provides, but it is
not error in the court to refuse to give this principle of law in
charge to a jury, in a case which turns wholly on an al-
leged express contract with the trustee, and where there is
no evidence from which the implied liability of the trust-
estate can be lawfully assumed. Leonard v. Powell, 41 Ga.
598.
Cited in Timmons v. Bank, 11 Ga. App. 69, 74, 74 S. E. 798.
§ 3787. (§ 3203.) How and where sued, etc.—
The person having such claim as provided- in the
previous section, if the same exceeds the sum of
one hundred dollars, may file his petition, setting
forth the grounds of such claim, and also how and
in what manner said estate is lialbie for the pay-
ment of said claim, and also setting forth the
name or names of the trustees and the cestui que
trust, which petition shall be filed in the office of
the clerk of the superior court under the same
rules and regulations as in ordinary cases at com-
mon law, and the subsequent proceeding shall be,
in all respects, the same. Acts 1855-6, p. 228.
Cross References. — For another treatment of this subject
see 11 Cum. Dig. 210; 12 Enc. Dig. 399. As to pleading
and practice generally, see 11 Cum. Dig. 214; 12 Fnc. Dig.
410. As to necessity of execution specifying property, see
§ 3791.
Other Remedies. — If the plaintiffs seek to get a judgment
against a trust estate for services rendered for such es-
tate, they must bring their action in accordance with this
§ 3788
CLAIMS AGAINST TRUST ESTATES
§ 3791
and the following sections; an ordinary judgment can not
be stretched to fit such circumstances. Blanford v. Mc-
Gehee, 67 Ga. 85.
Section Not Applicable to Executed Trust. — Where the hus-
band who was trustee for the wife, died, the legal title
vested in the wife and there was no necessity for procur-
ing a judgment as prescribed in this section (for there was
no trust estate. Coughlin v. Seago, 53 Ga. 250.
No Modification of Jurisdiction of County Court. — Under
this section, if the claim against a trust estate exceeds one
hundred dollars, the petition shall be brought in the supe-
rior court; and under § 3789, if it does not exceed that
sum, suit may be brought in a justice's court. These sec-
tions are simply codification of an act passed before the
statute establishing the county court and we think can not
be construed into any modification of the jurisdiction con-
ferred upon that court by § 4193, Code of 1895, 4775 (24)
of this Code. Sanders v. Houston Guano, etc., Co., 107
Ga. 49, 60, 32 S. E. 610.
Necessary Parties. — Where an estate was left to A and to
such children as he might have, and the property was levied
on under this section for a debt for supplies for the farm
which was contracted before the birth of children, it is er-
ror to subject the whole corpus to payment, but such bene-
ficiaries as were in li\fe should have been made parties and
only A's part subjected to payment, the court protecting
the interests of unborn children. Keaton v. Baggs, 53 Ga.
227.
Proceeding Against Homestead. — Whenever it is sought to
bring any part of a homestead to sale under a claim or
debt for which it is contended the homestead is liable, such
must be done in the manner provided by this section, or by
a compliance with the provisions of the Act of 1871, as codi-
fied in § 3400. Martin v. Davis & Co., 104 Ga. 633, 637,
30 S. E. 753.
Necessary Allegations. — The title to land set apart
as a homestead is for the use and benefit of the family, and
is in the nature of a trust estate, the mere legal title being
in the head of the family as trustee or agent. If, there-
fore, it be sought to subject such property to the payment
of a debt for material furnished for the improvement of the
homestead, the pleadings must show the grounds of the claim,
and how the estate is liable, and the names of the cestui
que trust,, as in other common law suits against trust es-
tates, under this section. Willingham & Dunn v. May-
nard, 59 Ga. 330.
"All that the suitor has to do to enforce a claim against
a trust estate is to set forth in his petition the grounds of
his claim, how and in what manner the estate is liable there-
for, and the names of the trustees and of the cestui que
trust." Moore, etc., Co. v. Lampkin, 63 Ga. 748, 751.
Allegations showing that the trust estate was a plan-
tation, that it lacked stock, tools and provisions to sup-
port labor, that it was worthless without them, that B
was the sole surviving heir and unmarried, and showing
the terms of the trust, substantially conformed to this
section. Cabot v. Armstrong, 100 Ga. 438, 28 S. E- 123.
Same — Circumstances of Beneficiaries — Encroachment Upon
Estate. — While a petition in making out a case under this
section failed to show the circumstances in life of the
beneficiary and whether or not an encroachment upon
the corpus of the estate was necessary to pay for supplies
to run the farm, the section does not seem to require it,
but by the holding of Greenfield v. Vason, 74 Ga. 126,
it seems necessary. Yet in this case it is immaterial.
Cabot v. Armstrong, 100 Ga. 438, 28 S. E. 123.
Proof — Note Alone Insufficient.— A note itself is not suffi-
cient to warrant a recovery against the trust estate. The
plaintiff must go further and establish his whole declara-
tion, proving the existence of a trust estate, of what it
consists, and the specific facts which render it liable for
the debt. This he must do if there be no plea but the
general issue, or even if there be no plea at all. Gaudy
v. Babbitt, 56 Ga. 640.
§ 3788, (§ 3204.) Party defendant.— If there is
no trustee, or he is a mere naked trustee and non-
resident in the county, the cestui que trust shall
be made the defendant, and the proceedings shall
be, in all respects, the same as when the trustee is
defendant. Acts 1855-6, p. 228.
Defects Amendable by Judgment. — Where it was evidently
the intention of the pleader to bring a suit under the pro-
visions of this section, declaring the way in which suits
against trust estates should be brought, the failure to set
out the names of all the beneficiaries, and the informal way
in which the property of the homestead estate was described,
are defects which would be amendable before, and which
would be cured, by, a judgment in the case. Wegman
Piano Co. v. Irvine, 107 Ga. 65, 68, 32 S. E. 898.
For a full treatment of the parties by and against trus-
tees and trust estates, see 12 Enc. Dig. 404.
While it is provided in § 3787 that one seeking to en-
force a claim against a trust estate must set forth in his
petition "the name or names of the trustees and the cestui
que trust," it is evident from a casual reading of this sec-
tion, that the trustee alone is to be considered the defend-
ant to the action, unless "he is a mere naked trustee and
non-resident in the county," in which event the "cestui que
trust shall be made the defendant, and the proceedings shall
be, in all respects, the same as when the trustee is defend-
ant." Wagnon v. Pease, 104 Ga. 417, 433, 30 S. E. 895.
The only provision of the statute for making cestui
que trust parties defendant to actions on claims against
trust estates is in a case where "there is no trustee, or he
is a mere naked trustee and non-resident of the county."
It will thus be seen that the law nowhere contemplates that
the beneficiaries of such a trust shall be made parties to the
suit when there is an active trustee of an executory trust.
They are represented by the trustee and are bound by the
judgment of any court of competent jurisdiction over the
person and subject-matter, rendered against their represen-
tative, subjecting the trust estate, in which they have simply
the beneficial and equitable interest. Zimmerman v. Tucker,
64 Ga. 433; Clark v. Flannery, 99 Ga. 239, 25 S. E. 312;
Sanders v. Houston Guano, etc., Co., 107 Ga. 49, 55, 32 S.
E. 610.
While a contract for the improvement of real estate
is made with one who has executed a conveyance of the
land to another as security for a debt, and the holder
of the security deed agrees to the contract, the latter is a
proper party to the foreclosure of a lien of the contractor
for the improvements, and the lien binds his interest in the
property. Williams v. Chatham, etc., Co., 13 Ga. App.
42, 78 S. E. 869.
This section does not give the plaintiff power to substi-
tute one of the cestui que trusts who was the wife of a
presumed trustee, for such trustee, who in fact had never
accepted the trust. Lennard v. Jones, 27 Ga. 309.
§ 3789. (§ 3205.) How in justice court.— When
the claim does not exceed the sum of one hun-
dred dollars principal, suit may be brought in a
justice's court, under the same rules and regula-
tions as in ordinary suits in those courts, saving
only that the summons shall set forth how and in
what way said trust estate is liable for the pay-
ment of said claim; and the judgment rendered
in a justice's court shall have the same force and
effect as is hereinafter prescribed in relation to
judgments rendered in the superior court. Acts
1855-6, p. 229.
Jurisdiction of county court, see note to § 3787. For a
treatment of justice courts, their officers and practice, see
§§ 4648 et seq.
§ 3790. (§ 3206.) Trust estate only, bound.—
The judgment thus rendered shall impose no per-
sonal liability on the trustee, or in any way ren-
der his property liaible for the payment of the
same; but said judgment shall only bind such
trust estate, and execution shall issue accordingly.
Acts 1855-8, p. 229.
See 11 Cum. Dig. 197 and references. See also, 12 Enc.
Dig. 368.
In no event is it contemplated that the trustee shall
incur any individual or personal liability in such a suit.
On the contrary, this section expressly declares : "The
judgment thus rendered shall impose no personal liability
on the trustee," etc. It will therefore be seen that he is
a mere nominal party, so far as personal interest in the
suit is concerned, charged with the duty of defending the
action, not in his own behalf, but in behalf of the cestuis
que trust. If he fails properly to discharge this duty, he
is liable to them in damages. Wagnon v. Pease, 104 Ga.
417, 433, 30 S. E. 895. See also Vason v. Gardner, 70
Ga. 517.
§ 3791. (§ 3207.) Execution must specify prop-
erty. — All executions issued upon judgments
rendered under the provisions of the five preced-
ing sections shall specify in the body of the exe-
cution the property upon which the same is to be
[ 1081 ]
§ 3792
GRANTS GENERALLY
§ 3795
levied, and it shall be levied on no other property.
Acts 1855-6, p. 229.
Executions issued from judgments obtained under the
provision of the Act of 5th March, 1856 must specify the
property on which the same is to be levied, or the same
will be illegal and void. Wright v. Watson, 30 Ga. 648.
An execution, based upon a judgment against trustees,
which fails to specify the property to be bound for its pay-
ment, having been levied upon the trust estate, the sale
will be enjoined. See 7 Enc. Dig. 389-90; Clinch v. Fer-
ril, 48 Ga. 365.
ARTICLE 5.
Deeds to Beneficial Interests.
§ 3792. Deeds to interests in property for its
improvement. — The owners of property located in
this State may create by deed an estate therein
and in the improvements made thereon, for the
benefit of themselves and such other persons
(whether sui juris or not) who may contribute to
the improvement or development of said prop-
erty, and their assigns or transferees: Provided,
the deed creating such estate shall provide for
the improvement or development of the property
covered thereby, and the trustee or trustees
therein named and their successors shall have
some active duty to perform in and about the
trust property or the management or control of
the same: And provided further, that the deed
creating such estate shall be recorded within
thirty days from the date of its execution in the
record of deeds in the office of the clerk of the
superior court of the county wherein said prop-
erty is located. When such an estate is so
created, the legal title to the said property and all
the property added thereto, or substituted there-
for, shall vest and remain in the trustee or trus-
tees named, his or their successors, in accordance
with the terms of said deed, with all the powers
conferred thereby upon the trustee, and shall not
during the continuance of the said estate pass to
or vest in the 'beneficiaries or cestuis que trust;
but at the end of twenty-five years from the date
of the deed creating such estate the title of such
of said, property as may then belong to said es-
tate shall vest in the beneficiaries; and if said
deed creating such estate so provides, a renewal
of said estate may be made at the end of said
twenty-five years, upon the terms and conditions
and in the manner therein set forth, for a like
period. Act 1899, p. 57.
As to persons for whom a trust may be created, see §
2729. As to when a trust is executed, see § 3736.
§ 3793. Certificates of interests by trustees. —
When an estate is so created, and from time to
time thereafter, the trustee or trustees shall issue
such certificates of beneficial interest as may be
provided by said deed to the persons beneficially
interested in such estate, or becoming so inter-
ested therein in accordance with the provisions of
said deed, which certificates shall pass and be
transferred as personalty and in the same man-
ner as shares of stock in corporations; and the
same shall be subject to levy and sale under at-
tachment or execution or any other process, in
like manner as shares of stock. And the trustee
or person in charge of the estate representing the
trustee of said estate shall be subject to the same
demand as that provided by section 6035 for the
levying officer to make upon the officers of a cor-
poration. And persons having claims against
said estate created as aforesaid may enforce the
same by suit against the trustee or trustees
thereof, in like manner as suits against corpora-
tions, and service thereof may be perfected by
serving the trustee or trustees, if residents of this
State, and. if not, then by publication; and the
venue of such suits shall be the same as that of
similar suits against private corporations, but
neither the trustees nor the beneficiaries of such
estate shall ibe personally or individually liable
therefor except in cases where officers and stock-
holders of private corporations are now liable un-
der the law.
As to assignment of choses in action, see § 3653. As
to when a transfer of stock is complete, see § 2219. As to
liability of stockholders after transfer, see § 2247. As
to how members of corporation, etc., are sued, see § 2251.
As to where suit may be brought against corporations, see
§ 2259. As to attachment of shares or interest in cor-
poration, see § 5080. As to the levy on the stock of cor-
porations, see § 6035.
§ 3794. Duties and powers of trustees. — The
trustee or trustees shall have sole and exclusive
management and control of the said property in
accordance with the terms and provisions of the
deed creating such estate; and the exercise by
the trustee or trustees of any power granted or
conferred by the said deed, including the power
to lease, encumber, and sell, when exercised in
accordance with the terms and provisions thereof,
shall be as valid and effective to all intents and
purposes as if said trustee or trustees were the
sole and exclusive owners of the said property
in his or their own right. The said trustee or
trustees may resign or be removed, and their suc-
cessors be appointed in the manner and in ac-
cordance with the terms fixed by the deed creat-
ing such estate; and the same rights, powers, and
title over and to the said property shall belong to
and be vested in the new trustee or trustees as
are conferred upon the original trustee or trustees
by the said deed creating the said estate, and the
death of a trustee shall not operate to cast title
upon his heirs, devisees, executors, or adminis-
trators, but the same shall vest in his successor
when appointed.
As to appointment of new assignees or trustees, see §
3746.
§ 3795. Title, how it vests on termination of
estate. — Upon the termination of the estate
created as herein provided, the legal title to all
the property belonging to said estate then undis-
posed of shall pass to and. vest in the persons
who shall then be the beneficiaries of said estate,
in shares corresponding with their respective in-
terest as beneficiaries.
As to definition of executed and executor trusts, see §
3737. As to persons for whom a trust may be created,
see § 3729.
SEVENTH TITLE.
Of Title and Mode of Conveyance.
CHAPTER 1.
Of Title by Grant.
ARTICLE 1.
Grants Generally.
For an outline of procedure tinder the headright laws,
repealed by Acts of 1909, p. 115, see Haltzendorf v. Hil-
ton, etc., Co., 141 Ga. 148, 149, 80 S. E. 654. This case
[ 1082 ]
§ 3796
GRANTS GENERALLY
§ 3806
was pending at the date of the repealing act, which saved
all pending applications. The court held that the repeal-
ing act did not give or save to the applicant any right
to a larger acreage because of children born after its pas-
sage, and that the applicant could not by amendment en-
large the scope of his application by reason of such in-
crease in his ifamily. — Ed. Note.
§ 3796. (§ 3208.) What is title.— Title is the
means whereby a person's right to property is
established.
Color of title may be defined as being a writing, upon its
face professing to pass title, but which does not do it, either
from want of title in the person making it, or from the de-
fective conveyance that is used — a title that is imperfect, but
not so obviously that it would be apparent to one not
skilled in law. Beverly v. Burke, 9 Ga. 444. See notes to
§§ 4163, 4164 and 4169.
Title by capture during a war can only be set up by the
organized and recognized parties to the war, or by those
claiming and acquiring title from said organized and rec-
ognized parties. Wortly v. Kinamon, 44 Ga. 297 ; Huff v.
Odum, 49 Ga. 395.
§ 3797. (§ 3209.) And perfect title.— One per-
son may have the right of possession and another
the right of property. In a union of the two con-
sists a perfect title.
§ 3798. (§ 3210.) Origin in grant. — The title
to all lands in this State originates in grants from
the government; and, since its independence
from the State.
As to the allodial tenure by which realty is held, see §
3623.
When Possession Must Be Shown. — When a grant from
the State is introduced to show origin of title under this
section, no proof of possession is required. It is when the,
chain of 'title is not connected with a grant from the State
that possession in one of the grantors in the chain must be
shown. Ryals v. Wilson, 152 Ga. 761, 111 S. E. 414.
§ 3799. (§ 3211.) Form of grants.— The form of
grants heretofore used in this State is hereby es-
tablished, and a substantial compliance with the
same shall be held sufficient.
As to duty of Governor to issue grants, see § 145. As to
affixing great seal to grants, see § 210, par. 2.
§ 3800. (§ 3212.) Errors in grants may be cor-
rected.— The following errors in the issuing and
recording of grants may be corrected, viz.: Any
error in the name or residence of the grantee, or
the location, or character, or boundary of the
land, or in any other matter or thing connected
with the application for or issuing of the grant,
or in recording or transcribing the names of appli-
cants for draws, or of fortunate drawers in the
several land lotteries, or any omission in any of
the officers, or on the part of any of the agents of
the State, or any other mistake in the recording
thereof, or any other error whereby the true
grantee is deprived of or jeoparded in his right.
Act 1827, Cobb, 656; Act 1828, Cobb, 657; Act
1837, Coibb 658; Acts 1851-2, p. 247.
See 9 Cum. Dig. 666, 10 Enc. Dig. 671. In addition, see
notes to sections immediately following.
Former Act Unconstitutional — -The Act of 1837, authorizing
and requiring the Governor and the Secretary of State, Sur-
veyor and Comptroller General to correct errors in grants
and to issue alias grants was held to be unconstitutional so
far as the rights of third persons, other than the State and
the original grantee are concerned. Hilliard v. Connelly,
7 Ga. 172.
Errors to Which Section Applicable. — This section extends
only to the correction of errors which have occurred in the
executive department in the issuing of grants and not to
a mistake alleged to have been made by the persons origi-
nally registering the name of the persons entitled to draws.
Walker v. Wells, 17 Ga. 548.
Collateral Attack — Nowhere in the acts contributing to this
section, is it intimated that the grant is not to be deemed
valid as long as it remains uncorrected — unannulled. In
none does it give any countenance to the idea that a grant
may be "collaterally" attacked.. Vickery v. Scott, 20 Ga.
798. See also Houston v. State, 124 Ga. 417, 52 S. E.
757. In addition, see § 3808.
§ 3801. (§ 3213.) Proceeding for this purpose.
— In all such cases the application must be made
in writing to the Governor, and evidence pro-
duced to him that notice in writing of the nature
and time of the application has been served upon
every person who may be in any manner inter-
ested in the question: and if no objection be filed,
and satisfactory evidence of the error or mistake
be produced and submitted in writing, the Gov-
ernor may pass an order requiring the error to
be corrected, and, if necessary, a new grant to be
issued upon the first grant being delivered up to
be canceled. Act 1828, Cobb, 657; Act 1843,
Cobb, 658; Act 1845, Cdbb, 659.
The best evidence in respect to written notice upon parties
in interest under this section is to be procured by getting
a certified copy of the proceedings from said office; and as
the presumption is that the governor did his duty, the
defendant will not be heard to deny that he had notice of the
proceedings to correct a grant by his own oath as a wit-
ness, until he has exhausted the better evidence which
such certified copy would afford. Williams v. Goodall, 60
Ga. 482.
Changing Name of Grantee. — An order of the Governor
correcting a supposed mistake in a grant, by changing the
sur-name of the grantee, after the rights of third persons
other than the original grantee had attached, is inopera-
tive and void. Sykes v. McRory, 10 Ga. 465.
Collateral Attack. — If a grant for land issued from the
State to one who was not the fortunate drawer in said
lottery, that fact can not be shown collaterally on the trial
of an action of ejectment, but the original grant should
be corrected by a proceeding instituted for that purpose,
in accordance with the laws of the State. Patterson v.
Buchanan, 37 Ga. 561.
§ 3802. (§ 3214.) Effect of objections. — If ob-
jections be filed, and it shall appear that such ob-
jections will interfere with the vested rights of
other bona fide claimants, the Governor shall re-
fuse to make such correction, but leave the par-
ties to their judicial remedies.
§ 3803. (§ 3215.) Issue, how formed and tried.
— If the fact is doubtful as to the interference
with the vested rights of others, the Governor
may cause an issue to be made, snd certify the
same to the superior court of the county where
the land lies, requiring the court to cause the
same to be tried before a special jury, and have
their verdict certified to him.
If the rights of third parties have not intervened, it is
competent for the Governor to correct mistakes in grants;
otherwise there must be a judgment or decree of a Court,
for the purpose of ascertaining and establishing the fact.
Tison v. Yawn, 15 Ga. 492.
§ 3804. (§ 3216.) Filing of papers.— All the pa-
pers and evidence upon every such application
shall be filed and preserved in the Executive of-
fice.
The best evidence of notice under § 3801 is a certified copy
of the proceedings from the executive office. Williams v.
Goodall, 60 Ga. 482.
§ 3805. (§ 3217.) If original grant is lost.— If
the applicant for a corrected grant shall not be
able to produce the original grant to be canceled.
the Governor may issue the corrected grant,
after advertising for six months at the expense
of the applicant, for any objection to be filed.
For full treatment of lost instruments and records, see
8 Cum. Dig. 344; 9 Enc. Dig. 108.
§ 3806. (§ 3218.) Effect of corrected grants.—
All corrected srants shall take effect from the
[ 1083 ]
§ 3807
GRANTS GENERALLY
§ 381G
time of the issue of the original grant, but shall
not affect the vested rights of bona fide purchas-
ers without notice; and all corrected grants shall
bear upon their face a note of the correction
made, and the date of the executive order under
which it was made.
§ 3807. (§ 3219.) How grants may be set aside.
— Grants issued by the State may be set aside by
the superior court of the county where the land
lies, upon a writ of scire facias, on the ground
that the same were obtained by fraud or willful
misrepresentations by the grantee, or those in
privity with him, to the officers of the State; or
on the ground of collusion between the grantee
and the said officers; or of fraud, accident, or
mistake iby the officers, known to the grantee.
Rule Prior to Section. — A scire facias is always founded
upon a record, and when employed to revoke a grant, it
must be for some matter within the body of the grant.
Walker v. Wells, 17 Ga. 548.
A mistake in a grant can not be rectified by scire facias
or bill. McRory v. Sykes, 20 Ga. 571. At first glance
this ruling seems to be in conflict with Walker v. Wells,
17 Ga. 547, but in the opinion of the McRory case, it was
said "In Walker v. Wells, this court intimated pretty
strongly that a mistake in a grant could not be corrected
either by scire facias or bill and we have heard nothing
to change that opinion." The court in the second case
followed this intimation and made the above ruling. — Ed.
Note.
Rule Under This Section.— Without legislation, the courts
could not acquire jurisdiction by process of scire facias
over disputed questions relative to grants. This difficulty
was met by the adoption of this section by the Code of
1863 (§ 2332) and now there can be no doubt that the
state can, in its own name and in its own right, resort to
the writ of scire facias in order to effect a repeal of a
grant improvidently issued. It is equally true, however,
that there is an entire absence of legislation conferring upon
a private citizen the right to institute such a proceeding in
his own name under any circumstances. Calhoun v. Caw-
ley, 104 Ga. 338, 30 S. E. 773.
§ 3808. (§ 3220.) How impeached. — Grants may
be impeached before the courts, where they are
void upon their face, or are issued without au-
thority of law, or against a prohibition in a stat-
ute, or for property to which the State had no
title. But mere irregularities in the proceedings
to obtain them shall not be inquired into, nor can
a mistake in the name of the grantee be proved
by parol. Acts 1857, p. 58.
As to admissibility of parol evidence to show mistake
in deed or contract, see § 4572.
In General. — If a grant be void upon its face, or be issued
without authority, or against a prohibition in a Statute,
or if the State has no title, it may be impeached collat-
erally in a Court of Daw. But in general, other objections
and defects must be put in issue by a regular course of
pleadings by bill or scire facias. Hulliard v. Connelly,
7 Ga. 172.
Grant Issued to Wrong Person. — A grant can not be col-
laterally impeached and set aside by proof, that it issued
through mistake to the wrong person. Martin v. Ander-
son, 21 Ga. 301.
Grant Issued with Apparent Legality.— Under this section,
a grant under the "head-right laws," which is apparently
issued conformably with law, is not open to collateral at-
tack. Houston v. State, '124 Ga. 417, 52 S. E. 757. The
head-right acts, contained in §§ 3223-3236 of Code of 1895
were repealed by Acts 1909, pp. 115, 116. — Ed. Note.
State as Party. — A grant from the state can not be set
aside in any proceeding to which the state is not a party.
Parker v. Hughes, 25 Ga. 374. This case distinguished
from Dart v. Orme, 41 Ga. 376, in Calhoun v. Cawley, 104
Ga. 335, 30 S. E. 773.
Admissibility of Parol Evidence — Wrong Rule.— A grant is-
sued by mistake can only be avoided by sci. fa. or other
proceeding for that purpose in Chancery. It can not be
impeached collaterally, in an action at law, by showing
that the grantee intended was a different person and of a
different name from the one mentioned in the grant. Ti-
son v. Yawn, 15 Ga. 491; Sykes v. McRory, 10 Ga. 465.
[ 1084 ]
Same — Correct Rule. — In the case of a latent ambiguity,
parol evidence is admissible, not to prove a mistake in
the name of the grantee, but to give effect to the grant, by
showing the person intended as the grantee. Walker v.
Wells, 25 Ga. 141; Brooking v. Dearmond, 27 Ga. 58; Tug-
gle v. McMath, 38 Ga. 648; Sykes v. McRory, 32 Ga. 348.
The rule as laid down in the two cases in the preceding
paragraph was held to be wrong in the cases of Hender-
son v. Hackney, 23 Ga. 388, and Walker v. Wells, 25 Ga.
141, and were disregarded in arriving at their decisions. —
Ed. Note.
Same — Same — Illustrations. — Where a draw had been
given in, for Wesley Yarborough's orphans, and a grant
had issued to them in that capacity, it was held, that it
was competent to show by parol evidence, the identity di
the persons mentioned in the grant, and that they were
illegitimate, for the purpose of showing that their illegiti-
mate half-brother was their heir at law, under the Act of
1816. Greene v. Barnwell, 11 Ga. 285.
A grant was issued to Alfred Brown. There was no-
such person. It was held that this made a latent ambiguity,
and that aliunde evidence was admissible to show who was
the person meant. Bowen v. Slaughter, 24 Ga. 338.
While a mistake in the name of a grantee of land from
the state can not be proved by parol when it is offered in
evidence, yet where the grant describes the grantee as
"Ferrell" and the accompanying plat described him as Ter-
rell, there was a patent ambiguity, and parol testimony was
admissible to show that Ferrell was the proper name. Fer-
rell v. Hurst, 68 Ga. 132.
§ 3809. (§ 3221.) Nothing taken by implication.
— A grantee of lands or a franchise takes noth-
ing by implication, but is confined to the terms
of his charter; but every presumption is in favor
of a grant.
Cross References. — As to when franchise exclusive, see §
3640. As to construction of grant for ferry, see § 780.
As to favor of estates and grants by implication, see §
4268, par. 7.
Strict Construction. — Grants by the public are to be strictly
construed, and nothing passes by implication. Shorter v.
Smith, 9 Ga. 517; Harrison v. Young, 9 Ga. 359. But see
Young v. Harrison, 6 Ga. 130.
Same — Grant to Operate Turnpike Road. — A grant to a
company incorporating them to construct and maintain a
turnpike road, whether it be of property or franchises, is
to be construed strictly in favor of the public; and nothing
passes but what is granted in clear and explicit terms un-
der this section. Vernon Shell Road Co. v. Savannah, 95
Ga. 387, 389, 22 S. E. 625.
Same — Franchise of Ferry. — The ancient doctrine of the
common law, that the franchise of 'ferry, although not de-
clared to be exclusive, is necessarily implied in the grant,
is inapplicable to both the local situation and political in-
stitutions of this country. Shorter v. Smith, 9 Ga. 517.
See § 780.
Same — Extention of Railroad. — The Act of the Legislature
authorizing a railroad "to extend their road from any point
at or in the city of Savannah to the island of Tybee," does
not authorize them to extend their road into the city, in a
direction differing from that, to Tybee Island, and to lay
their track through the entire length of one of the streets,
with a grade requiring deep excavations and high embank-
ments. Savannah, etc., R. Co. v. Shields, 33 Ga. 601.
Every presumption is in favor of a grant. Winter v. Jones,.
10 Ga. 190, 191. See § 3810.
§ 3810. (§ 3222.) Presumption of a grant. —
Twenty years possession of land under a claim of
right, when the same is subject to entry and
grant, shall authorize the courts to presume a
grant.
Cross References. — For full treatment of adverse possession,
see 1 Cum. Dig. 210, 1 Enc. Dig. 164. For Code provi-
sions on adverse possession, see §§ 4163, 4168. As to ad-
verse possession in processioning, see § 3822.
Grant Not Presumed Against State from Possession Alone.
— A grant to land can not be presumed against the state
after the lapse of forty years and upwards from possession
alone, unaccompanied by any other proof or circumstance,
and without it being made to appear whether the possession,
at its commencement, was rightful or not. Doe v. Roe, 20
Ga. 467.
Pleading — Bill Sufficient. — A bill alleging that complainant
and its predecessors in title have been in possession for
from 20 to 50 years, and that such possession has been pub-
lic, continuous, open, notorious, exclusive, uninterrupted,
§ 3811
PROCESSIONING
§ 3818
and peaceable, and accompanied by a claim of right, satis-
fies this and other sections on the subject. Western Union
Tel. Co. v. Ga. R., etc., Co., 227 Fed. 286.
ARTICLE 2.
Of Land Lotteries.
§ 3811. (§ 3237.) Former acts continued. — The
several acts in reference to the various land lot-
teries heretofore authorized by this State, so far
as the same are now in force, shall remain of the
same effect and validity as if this Code were not
adopted, except so far as the same may be modi-
fied by the operation thereof. Acts 1853-4, p. 73.
§ 3812. (§ 3238.) Reverted lots,— All lands re-
verting to the State under the operation of these
laws and not yet disposed, of, and all reserves
still belonging to the State, shall remain the
property of the State until further action by trie
legislature. And all such, together with all un-
granted lands now within the 'bounds of the
State and not subject to grant under its laws, are
hereby pledged and set apart to be appropriated
by the legislature to the cause of education in this
State.
§ 3813. (§ 3239.) Secretary of State shall give
ordinaries list of lands. — The secretary of State
shall furnish each ordinary in the State with a
list of all the ungranted and reverted lots of land
lying in their respective counties, and., from time
to time, in like manner notify them of all lots
which may hereafter revert to the State in their
said counties.
§ 3814. (§ 3240.) Certain land to be sold.— All
lots of land in the State, which have not been
granted, or for which grants have • been issued
but not signed by the Governor, and all lots
which have reverted or may hereafter revert to
the State, shall be sold, to the highest bidder, un-
der such rules and regulations as govern sheriff's
sales, by the ordinary of the county in which said
lot or lots lie, whose duty it shall be to attend
personally to said sale. Acts 1872, p. 57.
§ 3815. (■§ 3241.) Proceeds, how disposed of. —
Each ordinary of the State shall remit the money
realized from the sale of lands in his county, as
aforesaid, together with a statement of the num-
ber of lot or lots sold, district and section, and
price realized from each, to the treasurer of the
State, within thirty days after such sale, after de-
ducting therefrom the legal expenses of adver-
tising; and the sums of money thus realized, shall
foe set apart to be appropriated by the legislature
to the cause of education in the State. Acts 1872,
p. 57.
§ 3816. (§ 3242.) Commission and liability of
ordinaries. — The ordinaries shall be entitled to
receive the same commission for their services
in the sale of such lands as the sheriffs of the
State are now allowed by law for the sale of
lands under executions; and for the faithful per-
formance of their duty, and the full, fair, and
prompt return of the money realized from such
sale, they shall be liable on their official bonds
as ordinaries, and the measure of damages upon
such bond, in case of misconduct upon the part
of such officer in the performance of the duty
herein imposed, shall be the value of the land, in-
cluding the cost of the suit upon his bond, and
cost of the court, which said suit upon said bond
shall be brought in the name of the State by the
solicitor-general of the circuit in which the de-
faulting officer may reside, and the recovery shall
be transmitted by the solicitor-general to the
treasurer of the State, there to 'be deposited and
applied as provided for in the preceding section.
Acts 1872, pp. 57, 58.
As to salary of ordinary and duty to pay over fees col-
lected to county or- state, for all counties having 200,000
population or more, see § 6017 (5); counties having be-
tween 44,000 and 60,000, and from 70,000 to 150,000 pop-
ulation, see § 6017 (12); counties of from 60,000 to 70,000
population, see § 6017 (25).
ARTICLE 3.
Processioning.
§ 3817. (§ 3243.) Appointment of processioners.
— 'The ordinary of each county shall,* at the sec-
ond term of his court in every second year, ap-
point three suitable persons in every militia dis-
trict in the county, who shall be processioners of
land for that district until their successors are ap-
pointed. Vacancies may be filled in the same
manner at any time. If none are appointed, the
ordinary shall appoint at any regular term, on the
application of any landowner. Act 1798, Cobb,
716; Act 1850, Cobb, 719; Acts 1853-4, p. 76.
Authority to Appoint Processioners. — Under Acts 1871, p.
225, creating a board of commissioners of roads and reve-
nue for the county of F, and other counties, the said board,
and not the ordinary of the county, had authority to appoint
processioners. Braden v. Martin, 136' Ga. 868, 72 S. E.
342.
Processioner Related to Applicant. — Where a processioner
in a proceeding to procession land lines is related within
the fourth degree by consanguinity or affinity to the appli-
cant alone, or to both the applicant or protestant, he is dis-
qualified, and such disqualification is sufficient ground for
setting aside a return of the processioners in which he par-
ticipated. Tucker v. Roberts, 151 Ga. 753, 108 S. E. 222.
De Facto Processioners. — Where persons, holding office as
processioners in a militia district in a particular county in
this State, entertain an application by a landowner to sur-
vey and mark a land line as authorized by statute, and after
surveying and making the line, file their report with the
ordinary as required by statute, even if such persons do not
hold office under lawful appointment, they are officers de
facto, and the report filed by them should not be set aside
on the ground that the appointment of the officers was un-
authorized by law. Tucker v. Roberts, 151 Ga. 753, 108 S.
E. 222.
To What Lands Applicable.— See notes to § 3818.
Powers and Duties.— See § 3818.
The prescribed powers and duties imposed on proces-
sioners appointed under this section, are quasi judicial, and
the body qf processioners in a given district is a "com-
mission" within the meaning of § 4642. Tucker v. Rob-
erts, 151 Ga. 753, 108 S. E. 222.
Processioners of land have neither express nor implied
power to administer an oath to anyone, for any purpose
whatever. Dalton v. Higgins, 34 Ga. 433.
Writ of Error to Correct Judgment — See notes to § 3820.
Cited in Benton v. Horsley, 71 Ga. 619, 627.
§ 3818. (§ 3244.) What is processioning. —
Every owner of land, anjr portion of which lies
in any district, though the remainder lies in an
adjoining district or an adjoining county, who de-
sires the lines around his entire tract to be sur-
veyed and marked anew, shall apply to the pro-
cessioners of said district to appoint a day when
a majority of them, with the county surveyor,
will trace and mark the said lines. Ten days
written notice of the time of such running and
marking shall be given to all the owners of ad-
joining lands, if resident within this State; and
[ 1085 ]
§ 3818
PROCESSIONING
§ 381
the processioners shall not proceed to run and
mark such lines until satisfactory evidence of the
service of such notice shall be produced to them.
Act 1799, Cobb, 717.
Cross References. — For full treatment of processioning, see
9 Cum. Dig. 634, 10 Enc. Dig. 638. See also sections fol-
lowing.
Application to Processioners. — In order for the owner of a
tract of land to have the lines around the same surveyed
and marked anew by processioners under this section, he
must make application in writing to the processioners _ of
the district in which a portion or all of the land is situ-
ated. Caverly v. Stovall, 134 Ga. 677, 68 S. E. 442.
The phrase, "shall apply to the processioners," as used in
this section, authorizing proceedings for the processioning
of land, necessarily refers to an application in writing, and
it follows that without such an application there can be no
lawful proceedings under this section. Ballard v. Haines,
115 Ga. 847, 42 S. E. 218.
Same — Necessity for. — As there was in the present case no
written application, the trial court did not err in sustaining
a motion to dismiss "the case." based on the ground, among
others, of the "insufficiency of the proceedings." Ballard v.
Haines, 115 Ga. 847, 42 S. E- 218.
Same — How # Addressed. — It is proper that one application
under this section be addressed to all three processioners;
but the proceedings will not be unlawful if the applicant
addresses a separate application to each of the processioners.
Caverly v. Stovall, 134 Ga. 677, 68 S. E. 442.
Same — How Delivered. — It is sufficient if applications un-
der this section are sent to the processioners and received
by them through the U. S. mails. Caverly v. Stovall, 134
Ga. 677, 68 S. E. 442.
Same — Parties. — Where it appeared from an application for
processioning under this section that the applicants and other
persons, not named in the application, were tenants in com-
mon of the land around which it was sought to have the
lines surveyed and marked anew, it was error to overrule a
motion of a protestant to dismiss the application on the
ground that the other tenants in common were not parties
thereto. Carmichael v. Jordan, 131 Ga. 514, 62 S. E. 810.
Same — Presumption. — The presumption is that a proper
application in writing was made to processioners by the ap-
plicant before they acted in the premises. . Caverly v. Sto-
vall, 134 Ga. 677, 68 S. E. 442.
Same — Proof after Loss. — After proof of the loss of the ap-
plication was made to the court it was not error to admit in
evidence the testimony of the processioners that the appli-
cation was made in writing and complied with the require-
ments of the statute. McCool v. Wilcher, 27 Ga. App. 96,
107 S. E. 365, 366.
Same — Effect of Death of Applicant. — Where application is
made under this section by a life tenant, who dies, the suit
may be continued in the name of the persons succeeding
to his interest, in this case, remaindermen. McCool v.
Wilcher, 27 Ga. App. 96, 107 S. E. 365.
Failure to File Application with Plat. — Where the applica-
tion to the processioners was duly made in writing and
acted upon by the processioners. who made their report
and filed it with the plat of the surveyor as required by
law, the fact that the application was not also filed with
the report, because lost, did not burnish a good ground for dis-
missal of the proceedings. Caverly v. Stovall, 134 Ga.
677, 68 S. E. 442; McCool v. Wilcher, 27 Ga. App. 96,
107 S. E- 365, 366. See § 3825.
Sufficiency of Notice. — The notice served on the adjoining
landowner, sufficiently indicated that a boundary line be-
tween his land and the applicant was to be marked anew,
and, since such notice need not necessarily contain such
a minute and particular description as is contained in a
deed, it is not subject to the objection that it fails to in-
dicate the line to be marked anew. MeAlpin v. Thomp-
son, 29 Ga. App. 495, 116 S. E. 64.
Same — Where Processioning Postponed. — Where written
notice is given of the time fixed for tracing a line by
processioners, and, on assembling at that time, for some
reason the processioning can not then be done, and the
matter is postponed to a later day, verbal notice of such
postponement may be given to the landowners interested,
and further written notice is not required. Garrett v.
Massee, etc., Dumber Co., 134 Ga. 442, 67 S. E. 1036.
A certified plat concludes an adjacent owner duly
served with notice under this section, if no protest is filed;
if on the day appointed, severity of the weather necessi-
tates postponement, the statute provides for no (further
notice. Phillips v. Chapman, 78 Ga. 163, 1 S. E. 427.
Where application was made to have land processioned,
and the return of the processioners showed that they ap-
pointed a day and met pursuant to such appointment, that
satisfactory evidence was produced to them of the serv-
ice of written notice ten days in advance, as required b]
law, and that on a day named (which was later than tha
mentioned in the written notice accompanying the return,
the disputed line was run and marked, the proceeding:
will not be held necessarily void and subject to be disi
missed on motion because on the face of the return i
does not appear that an owner of adjoining land was no
titled of the day to which the matter was postponed. Gar
rett v. Massee, etc., Dumber Co., 134 Ga. 442, 67 S. E
1036.
Scope of Processioning. — "Under this section establishei
lines and not new ones are to be fixed and determined
the location of lines, not as they ought to be, but as thej
actually exist, is to be sought." It is not their duty tc
adjudicate land titles. Boyce v. Cooke, 140 Ga. 360, 7i
S. E. 1057; Bowen v. Jackson, 101 Ga. 817, 29 S. E. 40
Wheeler v. Thomas, 139 Ga. 598, 77 S. E.- 817; Amos v
Parker, 88 Ga. 754, 16 S. E- 200; Crawford v. Wheeler
111 Ga. 870, 36 S. E. 954; Walker v. Boyer, 121 Ga. 300
48 S. E. 916; Cosby v. Reid, 21 Ga. App. 604, 94 S. E
824; Elkins v. Merritt, 20 Ga. App. 737, 93 S. E. 236
MeAlpin v. Thompson, 29 Ga. App. 495, 116 S. E. 64
Mattox v. DeDoach, 32 Ga. App. 454, 123 S. E. 624.
Processioning was designed to prevent controversies con
cerning boundaries of land between adjacent owners, bj
having the lines around the entire tract of an applicant sur
veyed and marked, and this must be done in order to make
the lines between adjacent owners prima facie correct anc
admissible in evidence without further proof. Where it is
apparent on the face of the papers that the processioners
have not complied with this requirement, their return is
without legal effect under the processioning laws. Watsor
v. Bishop, 69 Ga. 51.
Same — Applicable Only to Rural Divisions. — It is a mis
application of this section et seq. to use them for ascertain
ing boundaries between town lots and an adjacent tract,
these laws being intended for operation upon the bounda
ries dividing rural lands only. Christian v. Weaver, 79
Ga. 406, 7 S. E. 261.
Same — Whole Tract Must Be Marked. — Where it is sougiilj
to procession lands under this and following sections, it is
necessary to survey and mark the entire tract of land be-
longing to and possessed by the owner; and it is not suffi-
cient to survey and mark one lot alone, held by grant from
the State, it being the lot where the line is uncertain or dis-
puted. Martin v. Cauthen, 77 Ga. 491.
Same — Land Having County Line as Boundary. — A lot ol
land having for its boundary a land-lot line which is also a
divisional line "between counties, is not, on account of such
coincidence, excluded from the operation of this and fol-
lowing sections relating to the processioning of land. Cav-
erly v. Stovall, 143 Ga. 705, 85 S. E. 844.
The location of a county line under § 472 et seq. does
not nullify a prior judgment in a processioning case. Cav-
erly v. Stovall, 143 Ga. 705, 85 S. E. 844.
Same — Failure to Mark and Survey — As Grounds for Dis
missal. — Where it appeared that the lines around the entire
tract of the applicant were not surveyed and marked anew
as required by this section, it was proper to dismiss the en
tire proceeding, on motion of the protestants. Gillis v.
Taylor, 127 Ga. 676, 56 S. E. 992.
Instructions — Charging this Section. — Although it is not
necessary under the law as it now exists for an owner of
lands to apply to have the lines around his entire tract sur
veyed and marked anew in order to entitle him to the serv-
ices of the processioners and the surveyor in marking a sin-
gle line between him and any adjacent owner, the applicant
was not harmed in this case by the fact that the court
gave in charge that portion qf this section which refers to
the application for processioning by one "who desires the
lines around his entire tract to be surveyed and marked
anew;" nor is it cause for a new trial that the court charged
also the provisions of the same section with reference tol
notice to all the owners of adjoining lands. This case arose
upon an application to have a single line surveyed and
marked anew as the dividing line between the parties to
this case. No question was raised as to the sufficiency of
the notice. The jury could not have been misled by the
instructions referred to into a consideration of other is-
sues than those involved. McCollum v. Thomason, 32
Ga. App. 160, 122 S. E. 800.
§ 3819. (§ 3245.) Surveyor's duty.— It shall be
the duty of the county surveyor, with the proces-
sioners, taking all due precaution to arrive at the
same. The surveyor shall make out and certify
a plat of the same, and deliver a copy thereof to
the applicant; and in all future disputes arising in
reference to the boundary lines of such tract, with
[ 1086 ]
§ 3820
PROCESSIONING
§ 3821
any owner of adjoining lands, having due no-
tice of such processioning, such plat, and the lines
so marked, shall be prima facie correct, and such
plat, certified as aforesaid, shall be admissible in
evidence, without further proof.
For full treatment, see 9 Cum. Dig. 634, 10 Enc. Dig.
638. See also notes to § 3818 and following sections.
Sufficiency of Plat. — There is no requirement under this
section, making it the duty of the surveyor to indicate the
existence of any physical marks along the line adopted by
the processioners as the true line. The plat is sufficient
if so made that the lines can be definitely located. Nor-
man, etc., Co. v. Smith, 131 Ga. 69, 73, 61 S. E. 1039.
Section Not Applicable to Trial of Protest to Return.— This
section is inapplicable to the issue before the court formed
by a protest to the processioners' return. But the giving
of this section in charge was not prejudicial to the losing
party, because in the trial of an issue formed by a pro-
test the return of the processioners is to be deemed prima
facie correct. Georgia Talc Co. v. Cohutta Talc Co., 140
Ga. 245, 78 S. E. 90S; McCollum v. Thomason, 32 Ga.
App. 160, 163, 122 S. E. 800.
Rules of court do not apply to surveys made by the county
surveyor acting with processioners under an application of
the owner of land to the processioners to have the lines
around the same surveyed and marked anew. Caverly v.
Stovall, 134 Ga. 677, 68 S. E. 442.
Sufficiency of Petition. — A petition is not sufficient in fail-
ing to allege that the line pointed out was not in fact the
correct line between two tracts of land, or what was the
true line, merely alleging that he had been misled, and that
the processioners, appointed in part in his application, had
marked a different line, and that the vendor had notice of
the processioning, it not appearing that he was an adjoin-
ing landowner, or that the line so marked lay between the
land so conveyed and any land owned by him. Montgom-
ery v. Robertson, 134 Ga. 66, 67 S. E. 431.
Evidence — Plats. — In an action of complaint for land, a
certified copy of a plat made by the county surveyor in a
processioning proceeding under the statute is prima facie,
not conclusive, evidence of the true line between adjoining
landowners under this section. Hearn v. King, 69 Ga. 751;
McGraw v. Crosby, 129 Ga. 780, 59 S. E. 898; Chambers
v. Netherland, 145 Ga. 52, 88 S. E. 545.
The plat was admissible to illustrate the evidence of the
witness; and if the accompanying report of the' processioners
corresponded with this evidence and with the plat, it was
harmless. Gunn v. Harris, 88 Ga. 439, 14 S. E. 593.
Same — Testimony of Surveyor. — Where the location of the
dividing line between the parties litigant is relevant to the
matter in controversy, the testimony of the county surveyor
that he ran the line pending the suit, that defendant was
present when this was done, and that a certain map of the
survey is correct, is admissible evidence for the plaintiff,
notwithstanding the surveyor also testifies that his work
was done in the course of processioning the land in accord-
ance with the statute on that subject. Gunn v. Harris, 88
Ga. 439, 14 S. E. 593.
Judgment Sustaining Return Conclusive. — In the cases of
Howland v. Brown, 92 Ga. 513, 17 S. E. 806; Martin v.
Pattillo, 126 Ga. 436, 55 S. E. 240, and Stovall v. Caverly,
139 Ga. 243, 77 S. E. 29, a protest was filled to the return
of the processioners, and a final judgment rendered sustain-
ing the return, and the judgment was held conclusive.
Chambers v. Netherland, 145 Ga. 52, 88 S. E. 545.
Cited in Garrett v. Massee, etc., Lumber Co., 134 Ga. 442,
444, 67 S. E. 1036; Tucker v. Roberts, 151 Ga. 753, 760,
108 S. E- 222.
§ 3820. (§ 3246.) Rules in disputed lines. — In
all cases of disputed lines the following rules
shall be respected and. followed: Natural land-
marks, being less liable to change, and not capa-
ble of counterfeit, shall be the most conclusive
evidence; ancient or genuine landmarks, such as
corner station or marked trees, shall control the
course and distances called for by the survey. If
the corners are established, and the lines not
marked, a straight line, as required by the plat,
shall be run, but an established marked line,
though crooked, shall not be overruled; courses
and distances shall be resorted to in the absence
of higher evidence.
For more comprehensive treatment of this subject, see 2
[ 1087 ]
Cum. Dig. 982, 2 Fnc. Dig. 527; 9 Cum. Dig. 638, 10 Enc.
Dig. 639.
Discrepancy between Monuments and Distances. — "Cour-rs
and distances yield to natural, visible, and ascertained ob-
jects. Accordingly, when in the description of land in a
deed known monuments are referred to as boundaries, they
must usually govern, although neither courses nor dis-
tances nor the computed contents correspond therewith.
Natural monuments have greater weight than artificial
ones." Thompson v. Hill, 137 Ga. 308, 73 S. E. 640.
Same — Where Street is Monument. — Where a deed convey-
ing a tract of land locates the boundaries both by monu-
ments and by distances, and there is a discrepancy between
the two, the location by monuments will prevail. If in such
a case one of the monuments is a street, and there is, in a
suit brought to recover the land, a dispute as to whether
there was, at the date of the deed, such a street in exist-
ence, this question should be submitted to a jury under
proper instructions. Hammond v. George, 116 Ga. 792, 43
S. E. 53.
Existence of Corners and Landmarks. — Even though the
course and extent of the line itself may not have been ac-
tually marked out upon the earth's surface, yet, if there
should exist a sufficient number of physically established
corners or landmarks, the mere connecting of which by
straight lines, or from which the projecting of the courses
and distances shown by the plat would suffice to complete
the boundary, it would be the duty of processioners, in ac-
cordance with the provisions of this section, so to ascertain,
mark, and establish the same, respecting always the rights
had under actual possession as defined by § 3822 of the
Civil Code. Cosby v. Reid, 21 Ga. App. 604, 94 S. E. 824.
Key to Identification Shown in Record. — Upon ascertaining
the location of either terminus as alleged in the protest,
the course of the line toward the other terminus being
shown, the latter could be also determined under this sec-
tion. That is certain which may be made certain. In such
a case the line is sufficiently definite, where, as here, a key
to the identification is shown in the record. Price v. Gross,
148 Ga. 137, 96 S. E. 4; Boyd v. Sanders, 148 Ga. 839, 98
S. E. 490; McCollum v. Thomason, 32 Ga. App. 160, 122
S. E. 800.
Province of Court of Appeals.— It is the duty of the ccurt
of appeals to follow the precedents and the ancient land-
marks ojf the law as declared by the Supreme Court in trac-
ing landmarks under this section. If the line leading from
precedent to a particular point has not been marked, the
court of appeals may establish what they find to be a
straight line, but have no power to overrule a line set
up by the Supreme Court. Minor v. Atlanta, 7 Ga. App.
817, 819, 68 S. E. 314.
Disregard of Agreed Line.— Where the agreed line between
owners holding under common feoffor was disregarded, the
line run was illegal. Cleveland v. Treadwell, 68 Ga. 835.
Courses and Distances in Absence of Higher Proof. — In the
absence of higher proof, courses and distances are resorted
to under this section. But a resort thereto did not require
the jury, as a matter of law, to divide the aggregate amount
of land contained in the two lots so as to give one equal
portion to each side, regardless of any agreement or acqui-
escence of the parties. One lot may have contained an ex-
cess over the normal amount, and not the other. Addison
v. Edwards, 138 Ga. 623, 75 S. E. 648.
A writ of error will not lie to the Superior Court to correct
the judgment of the superior court in a proceeding insti-
tuted under §§ 3817-3823. Elkins v. Merritt, 146 Ga. 647,
92 S. E. 51; Guarantee Trust, etc., Co. v. Dickson, 148 Ga.
311, 96 S. E. 561.
Cited in Tucker v. Roberts, 151 Ga. 753, 760, 108 S. E- 222.
§ 3821. (§ 3247.) General reputation, when evi-
dence. — General reputation in the neighborhood
shall be evidence as to ancient landmarks of
more than thirty years standing; and acquies-
cence for seven years, by acts or declarations of
adjoining landowners, shall establish a dividing
line.
Cross References. — For full treatment of this subject, see
2 Cum. Dig. 987, 2 Enc. Dig. 533; 9 Cum. Dig. 639, 10
Enc. Dig. 690. As to admissibility of traditionary evidence
as to ancient boundaries and landmarks, see § 5772. As to
presumption of grant after twenty years, see § 3810. As
to when possession for seven years gives titles, see § 4169.
See also notes to § 3822.
What Necessary to Show Acquiescence. — "To establish a
line by acquiescence, it must appear that the owners of the
property to be affected, acted in such a manner for a space
of seven years, or made such declarations during the con-
tinuance of that period, as to show that the line claimed
§ 3821
PROCESSIONING
§ 3822
was the true line between the estates." Catoosa Springs Co.
v. Webb, 123 Ga. 33, 50 S. E. 942.
Where it is sought to establish the dividing line between
two tracts of land by acquiescence of the adjoining land-
owners without reference to the line called for in the deeds
of division, the line is not established as the dividing line
in the absence of acts or declarations by the landowners of
both tracts establishing it as the dividing line. Southern
Timber Co. v. Bland, 32 Ga. App. 658, 124 S. E. 359.
Acquiescence by conduct for a period of time less than
seven years will not suffice to establish a dividing line be-
tween adjoining landowners by virtue of this section. Mc-
Aleer v. Glover, 146 Ga. 369, 91 S. E. 114.
Same — Conventional Agreement. — In order that a line may
be established by acquiescence for seven years by the acts
or declarations of the owners of adjoining land, it is not
essential that the acquiescence be manifested by a conven-
tional agreement. Osteen v. Wynn, 131 Ga. 209, 62 S. E.
37; Zachery v. Hudson, 138 Ga. 85, 74 S. E. 768.
Continuance of Adverse Possession Upon Party's Death. —
In this case, father and son agreed upon a boundary and
the relationship o!f landlord and tenant was established by
them. Upon the son's death, his widow's occupation must
be treated simply as a continuance of that of her former
husband, and so regarding it, it would make the possession
of the father by his son and the son's widow more than
seven years, after the boundary was agreed upon, and this
section would have almost a literal application to the case.
Blover v. Wright, 82 Ga. 114, 117, 8 S. E- 452.
Parol Agreement. — Independently of the rule laid down in
the code section, a parol agreement between coterminous
proprietors, that a certain line is the true dividing line, is
valid and binding as between them, if the agreement is ac-
companied by possession of the agreed line or is otherwise
duly executed, and if the boundary line between the two
tracts is indefinite, unascertained, or disputed. Such an
agreement is not within the statute of frauds, because it
does not operate as a conveyance of land, but merely as an
agreement with respect to what has already been conveyed.
Farr v. Woolfolk, 118 Ga. 277, 45 S. E. 230; Bennett v.
Swofford, 146 Ga. 473, 474, 91 S. E. 542. See also, Chil-
ders v. Dedman, 157 Ga. 632, 122 S. E. 45; Barfield v.
Birrick, 151 Ga. 618, 108 S. E. 43.
Greater Efficacy than Deed. — The following charge to the
jury was held correct: If the plaintiff and defendant, or
those under whom they claim, established a fence as the
line between the plaintiff's and defendant's two pieces of
property, and it had been acquiesced in by the parties for
seven years, then it would be the dividing line, regardless
of recitals in a deed with regard to the number of feet.
Zachery v. Hudson, 138 Ga. 85, 86, 74 S. E. 768.
Binding on Grantees. — When a line has been located by an
executed parol agreement between the coterminous propri-
etors, or established by seven years acquiescence as provided
by this section, the line thus located and established is bind-
ing on the grantee of the coterminous proprietors. Osteen
v. Wynn, 131 Ga. 209, 62 S. E. 37; Gornto v. Wilson, 141
Ga. 597, 598, 81 S. E. 860. See also Shiver v. Hill, 148
Ga. 616', 97 S. E. 676.
Effect on Other Landowners. — Acquiescence of certain
landowners, whose lands are bounded by a county line, as
to the location of such boundary, will not be binding on
other landowners not holding under them, and whose lands
touch the county line at another place. Ivey v. Cowart, 124
Ga. 159, 52 S. E. 436; Farr v. Woolfolk, 118 Ga. 277, 45
S. E. 230.
Evidence to Show Change of Boundary. — Where one of the
boundaries of a lot was low-water mark of a pond, the evi-
dence was insufficient to show that this boundary had been
changed by acquiescence under this section. Boardman v.
Scott, 102 Ga. 404, 421, 30 S. E. 982.
Where there is evidence that the line claimed by defend-
ant to be the true line had been in existence for more than
seven years, but there is no evidence which conclusively
shows that the plaintiffs, or any one under whom they
claim, ever knew of the existence of this line, the case is
one for the jury, and not one for direction of a verdict.
Norman, etc., Co. v. Smith, 131 Ga. 69, 73, 61 S. E. 1039.
There being evidence from which the jury would have
been authorized to find that there had been seven years ac-
quiescence, by acts or declarations, in the line as contended
for by the defendant, the court should have given in charge
to the jury, this section. Hailey v. McMullan, 144 Ga. 147,
86 S. E. 315.
Instructions — Duty to Charge Without Request. — The true
location of the dividing line between the lands of the plain-
tiff and the defendants was a matter of dispute, and un-
der the pleadings and evidence there was a question of
whether a line had been established by acquiescence by acts
and declarations of the parties or their predecessors, or by
actual possession of the defendants and their predecessors
for a term of seven years; and it was the duty of the court,
without request, to charge the law on that subject. Brook-
man v. Rennolds, 148 Ga. 721, 98 S. E. 543.
Same — Omission of Clause Defining Acquiescence. — Where
the principle of law embodied in this provision is applica-
ble under the evidence, and the court undertakes to give it
in charge to the jury, it should be given substantially if not
literally. This requirement was not met by the court be-
low in its instructions upon this subject, inasmuch as the
words "by acts or declarations of adjoining landowners"
were omitted therefrom. This omission constituted material
error, as the jury might have thought that mere passive ac-
quiescence would suffice to establish a dividing line, whereas
acquiescence of that character is not sufficient. Cassels v.
Mays, 47 Ga. 224, 93 S. E. 199; O'Neal v. Ward, 148 Ga.
62, 95 S. E. 709.
Same — Reference to Term of Years. — An instruction apply-
ing these rules was not cause for new trial because the
court referred to the line of acquiescence and actual pos-
session as "a term of years as the law prescribes" and "a
number of years," where in immediate connection there-
with he also instructed the jury in the language of this sec-
tion and § 3822, that such acquiescence or actual possession
must exist for seven years. The evidence authorized the
charge complained of. Georgia Talc Co. v. Cohutta Talc
Co., 140 Ga. 245, 78 S. E. 905.
Same — Propriety of Charge. — See notes to § 3822.
On the trial of a case involving the establishment of a
dividing line between coterminous-land owners it was not
error under the facts, for the court to instruct the jury:
"Where an agreement establishing a dividing line between
adjoining properties is followed by acquiescence and posses-
sion, the parties are concluded by their agreement; and
when the acquiescence and possession have- continued for
the period of time prescribed by the statute of limitations, a
perfect title by adverse possession is acquired. If adjoin-
ing proprietors deliberately erect monuments or fences or
make improvements on a line between their lands upon the
understanding that it is the true line, it will amount to a
practical location." Henderson v. Walker, 157 Ga. 856,
122 S. E. 412.
It was not error in a case for the court to charge the
jury as follows: "If you find this fence was established by
the predecessors in title of these parties, and that the fence
was on a line agreed upon (and as to that the court ex-
presses no opinion), and that the fence has been acquiesced
in by both parties for more than seven years, it would be-
come the legal line between the parties." Henderson v.
Walker, 157 Ga. 856, 122 S. E. 412.
Cited in Camp v. Cochrane, 71 Ga. 865 ; Tucker v. Roberts,
151 Ga. 753, 760, 108 S. E. 222.
§ 3822. (§ 3248.) Adverse possession. — Where
actual possession has been had, under a claim of
right, for more than seven years, such claim shall
be respected, and the lines so marked as not to
interfere with such possession.
Cross References. — For full treatment, see 1 Cum. Dig. 210,
1 Enc. Dig. 162; 9 Cum. Dig. 639, 10 Enc. Dig. 640. See
also notes to §§ 3820, 3821, 3823. For general provisions
on adverse possession, see §§ 4164, 4165, 4169. As to pre-
sumption of grant after twenty years, see § 3810.
Nature of Possession Required by Section. — Any actual pos-
session under a claim of right, which has continued for
more than seven years, is, by this section, to be respected
by processioners, whether it originated in permission or not.
The question with which processioners deal is not one of
prescription, but of boundary. Christian v. Weaver, 79 Ga.
406, 7 S. E. 261.
The possession which this section requires processioners
to respect, is a possession existing at the time the lines are
marked. Riddle v. Sheppard, 119 Ga. 930, 47 S. E. 201.
Mere naked possession, with no intention of asserting
ownership, is not such actual possession, under a claim of
right as is contemplated by this section. Riddle v. Shep-
pard, 119 Ga. 930, 47 S. E. 201.
Effect of Running Line Through Property Adversely Held.
— Where the muniments of title of the adjacent landown-
ers call for a line which is the land-lot line between two
lots of land, and such line as run by the processioners passes
in part through lands adversely held for seven years by
one of the parties, the entire proceeding is not per se
void. Stewart v. Jackson, 144 Ga. 501, 87 S. E- 656; Bur-
dette v. Coleman, 31 Ga. App. 553, 121 S. E. 130.
Original Line Constitutes Remainder. — The party who has
been in actual possession of, the strip of land for more
than seven years under a claim of right should prevail as
to what part of the line, and the rest of the line should be
the original land-lot line between the two lots of land.
Burdette v. Coleman, 31 Ga. App. 553, 121 S. E. 130.
[ 1088 ]
§ 3822
PROCESSIONING
§ 3823
Burden to Show Possession. — "The burden was on the de-
fendant to show that he was in possession under a claim of
right; and if the defendant was relying on the provisions
of this section, the burden was on him to show not only-
actual possession for seven years, but that the actual pos-
session had been under a claim of right for that length of
time." Norman, etc., Co. v. Smith, 131 Ga. 69, 72, 61 S.
E. 1039.
Evidence to Show Possession. — The resurvey of a tract of
land, or entering on a tract of land for the purpose of
making a survey, is not evidence to support an adverse pos-
session. Dillon v. Mattox, 21 Ga. 113.
Possession Question for Jury. — Under this section and the
facts of the instant case (the actual possession of the strip
of land in controversy, by the protestant, under a claim of
right, for more than seven years, being disputed by the ad-
jacent landowner), the court erred in dismissing the case
on the ground that the processioners, in running the line
between the lands of the parties, disregarded the question
ojf possession by the protestant, and that the return of the
processioners was therefore void. Under the facts of the
case the court should have submitted to the jury the ques-
tion as to whether the protestant had been in actual pos-
session, under a claim of right, for more than seven years
of the strip of land in controversy. And the jury should
have been instructed that if they resolved that issue in
favor of the protestant, then he should prevail as to that
part o/f the line, "and that as to the remainder of the line
their verdict should be according to their finding whether
the line run by the processioners or that claimed by the
protestant was the true line." Burdette v. Coleman, 31 Ga.
App. 553, 121 S. E. 13'0.
Instructions — Charging Another Section. — In a case arising
under an exception filed to the return of processioners,
where the protesting party claimed the establishment of the
line by adverse possession for many years, and the court
charged the jury, with this section, . there was no error in
defining to them what constituted actual possession within
the meaning qf the law, as provided in § 4165. Johnson v.
Reeves, 133 Ga. 822, 66 S. E. 1081.
Same — Refusing to Charge Another Section. — Where, upon
the trial of the issue formed by a protest to the return of
processioners who marked a disputed land-line, one conten-
tion was that the line marked by the processioners was
fixed by adverse possession under this section, there was
no error in refusing to charge what constitutes constructive
possession of land, in connection with the law of prescrip-
tion, as defined by § 4166. Stewart v. Smith, 135 Ga. 390,
69 S. E. 540.
Same — Qualifying this Section. — The provisions of this sec-
tion being, according to some of the evidence submitted,
applicable to the case, the court erred in instructing the
jury as follows: "If you believe from the evidence * * *
[the protestant] had the exclusive and continuous posses-
sion of this property to the line which he claims, and that
it is the true line, for seven years, and had it up until
this line was run by the processioners, then the court
charges you that the processioners had no right to inter-
fere with that line; that is the simple question for you to
determine — which is [the] true line." The phrase "and
that it is the true line" was erroneous, as it qualified the
provisions of this section. Williams v. Giddens, 132 Ga.
342, 64 S. E. 64.
Same — Propriety of Charge. — The court's instruction to the
jury that "when one has been actually in possession of
land for more than seven years under a claim or right,
such claim shall be respected by the processioners," is not
objectionable on the ground that this charge "is not ap-
plicable to processioning cases." Johnson v. Reeves, 133
Ga. 822, 66 S. E. 1081; Heath v. Clark, 141 Ga. 65, 80
S. E. 288.
Under this section and the facts of the instant case, it
was not error, for any reason assigned, for the court to
instruct the jury as follows: "Whether there be an es-
tablished line or an agreed line (I mean or whether there
has been acquiescence in the line), if you believe that the
land in dispute between the disputed land line has been
in the actual possession of J. for seven years under a
claim of right, then 1 charge you that such possession
ought not to be disturbed and should not be disturbed, and
no line run so as to interfere with such possession." Wig-
gins v. James, 30 Ga. App. 52, 116 S. E. 547.
There being no evidence adduced upon the trial, or any
contention by the protestant in his protest filed to the re-
turn of the processioners, of seven years' acquiescence in
a dividing line by acts or declarations of the adjoining land-
owners, as provided in § 3821, the court did not err in
failing to give such theory in charge to the jury. The
court, however, fully instructed the jury as to the issue
involving a right by seven years' prescription as provided in
I this section, asserted by the protestant and authorized by the
Ga. Code — 35
evidence. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.
E. 64.
Verdict Contrary to Evidence and Law.— This was a protest
to the return of processioners. The undisputed evidence
showing that the protestant had for more than seven years
been in the actual possession of the tract bounded by the
lines claimed by him, under a claim of right, a verdict in
favor of the applicant was contrary to law and the evidence,
and should have been set aside on motion for a new trial.
Robson v. Shelnutt, 122 Ga. 322, 50 S. E. 91. See also,
Cartledge v. Seago, 141 Ga. 113, 80 S. E- 290; Langley v.
Woodruff, 144 Ga. 702, 87 S. E. 782.
Cited in Camp v. Coehrane, 71 Ga. 865; Cosby v. Reid, 21
Ga. App. 604, 605, 94 S. E. 824; Tucker v. Roberts, 151 Ga.
753, 760, 108 S. E. 222.
§ 3823. (§ 3249.) Protest and appeal to super-
ior court. — Any owner of adjoining lands, who
may be dissatisfied with the lines as run and
marked by the processioners and surveyor, may
file his protest thereto with the ordinary within
thirty days after the processioners have filed their
returns, specifying therein the lines objected to,
and the true lines as claimed by him; and it shall
be the duty of the ordinary to return all the pa-
pers, including the plat made by the surveyor,
with said protest, to the clerk of the superior
court of the county or counties where the dis-
puted land lies (copies being sent to the adjoin-
ing counties) ; and it shall be the duty of the clerk
to enter the same on the issue docket, as other
causes, to be tried in the same manner and un-
der the same rules as other cases. The verdict of
the jury, and the judgment of the court, shall be
framed to meet the issue tried and decided: Pro-
vided, it shall not be necessary to run any lines
between adjoining landowners except the lines in
dispute. Act 1901, p. 39.
For comprehensive treatment of this subject, see 1 Cum.
Dig. 554; 9 Cum. Dig. 642, 10 Enc. Dig. 644.
Editor's Note. — This section was amended by Acts 1901, p.
39, by substituting the words, "ordinary within thirty days
after the processioners have filed their returns," in lieu of
"processioners within thirty days after such lines are run
and marked." The word "ordinary" was substituted for
"processionars," making the section read "duty of the ordi-
nary to return" in lieu of "duty of the processioners to re-
turn." The proviso clause was also added by this act.
Protest Must Be Filed with Ordinary. — The requirement of
filing a protest with the ordinary within thirty days after
the processioners had filed their returns was not complied
with by filing such a protest with the clerk of the superior
court, although the ordinary may have told the dissatisfied
landowner to file it with the clerk if the ordinary should
be busy in connection with the road work of the county.
A protest so filed, and which was never filed with the ordi-
nary, should have been dismissed on motion. Moore v.
Hood, 131 Ga. 479, 62 S. E. 586.
Duty of Ordinary.— When a protest is filed fo the return of
processioners, it is not necessary that the ordinary should
make any written report of the transmission of the papers
to the clerk of the superior court, but it is only necessary
that he perform the physical act of such transmission ; and
the presumption is that he did his duty in respect thereto.
Norman, etc., Co. v. Smith, 131 Ga. 69, 61 S. E- 1039.
The protest may be amended at any stage of the cause, and
it may be that if the return of the processioners, including
the plat, showed a failure to ascertain the boundaries of the
entire tract, and mark them, the court would have no ju-
risdiction to take further cognizance of the case. Rattaree
v. Morrow, 71 Ga. 528.
True Line May Be Set Up. — The issue in a case under this
section is not necessarily confined to the question of whether
the line as marked by the processioners should be sustained,
but it is permissible for the protestant to obtain a verdict
setting up the true line as declared in his protest, if the
evidence shall so warrant. See Stewart v. Jackson, 144 Ga.
501, 87 S. E. 656; Parrish v. Castleberry, 142 Ga. 115, 82
S. E. 520; Norman, etc., Co. v. Smith, 131 Ga. 69, 74, 61
S. E. 1039; Robson v. Shelnutt. 122 Ga. 322, 50 S. E.
91. See also, §§ 4522, 5426. McCollum v. Thomason, 32
Ga. App. 160, 122 S. E. 800.
Objections to Return — Surveys of Entire Tracts. — Where tin
application to the processioners was to mark anew only the
boundary line between two tracts, and the notice to the ad-
[ 1089 ]
§ 3823
PROCESSIONING
§ 3825
joining landowner, who is the protestant, indicated _ that
such boundary line only was to be marked anew, it is no
objection to the return of the processioners that they made
complete surveys of the entire tracts. McAlpin v. Thomp-
son, 29 Ga. App. 495, 116 S. E. 64.
Same — Failure to Object. — Where only one line was run and
marked, and the case was tried in the court below upon an
issue as to the correctness of the line so marked, and no
objection was made on account of the failure to survey and
mark all of the lines, after a verdict finding in favor of the
line surveyed and marked, this court will not set aside such
verdict as contrary to law and evidence, on the ground
that such failure existed in fact, as shown by the evidence.
Rattaree v. Morrow, 71 Ga. 528.
Same — Deprived of Land Called for in Deed. — A landowner
affected by the return of processioners can not, when
protesting against the return, be heard to complain that, as
a result of the land lines marked anew as previously estab-
lished, he is deprived of land to which he is entitled and
which his deed calls for. McAlpin v. Thompson, 29 Ga.
App. 495, 116 S. E. 64.
Same — Where Husband and Wife are Joint Tenants.— Where
a husband and wife were in possession as joint owners of
a life-estate in land, and due notice was served on the wife
alone, by the owner of adjoining lands, of his intention to
have the lines between the respective lands marked by pro-
cessioners under §§ 3818 et seq., and on the appointed day
the processioners proceeded to locate the line, and the hus-
band, who was without due notice, was present and pro-
tested against the legality of the proceeding and afterwards
the wife filed a protest to the return of the appraisers as
provided in this section, and on the trial of the issue in
the superior court made by the objection to the returns the
husband was present and testified as a witness, both will be
bound by the judgment. By the terms of this section the
husband, if dissatisfied, could have filed his protest or in-
tervened on the trial of the issue formed by tthe protest
of the wife. Cartledge v. Ashford, 152 Ga. 674, 110 S. E.
907.
Time of Making Protest. — Until a line is run and marked
by the processioners, no protest can be made, and without
such protest duly made there is no authority di law for re-
turning the papers to the superior court or for any trial in
that court touching the action of the processioners. The
consent of the parties will not dispense with an actual run-
ning and marking of the line. Amos v. Parker, 8 Ga.
754, 16 S. E. 200.
Evidence — Showing Conduct of Protestant. — On the trial of
a protest to the return of the processioners there was no
error in admitting evidence to show that in fact the prot-
estant was present on the day first set and when the post-
ponement was made, and was also present when the work
began, but left before its completion because he was dissat-
isfied with the line which was being run and marked. Gar-
rett v. Massee, etc., Lumber Co., 134 Ga. 442, 67 S. E.
1036.
Same — Processioner as Witness. — An objection that one of
the processioners was not competent as a witness to prove
certain facts, because it was in the nature of impeaching
his finding, was without merit. Garrett v. Massee, etc.,
Lumber Co., 134 Ga. 442, 67 S. E. 1036.
Same — Admissibility of Protest. — When the identity of a
parcel of land is in question, if one party should, in order
to prove the location of the land lines, offer a report of
processioners, it would be relevant for the opposite party
to show that he had filed a protest to the return, and that
the issue thus arising had not been determined. However,
the protest is without relevancy when no effort is made to
establish the lines by the return of the processioners;
though the surveyor and others who assisted in the proces-
sioning are sworn as witnesses and testify as to facts as to
which they acquired inlformation by reason of the survey.
Hunter v. State, 7 Ga. App. 668, 67 S. E. 894.
Same — Return. — In an issue formed upon a protest to the
return of processioners, it was not error to refuse to ex-
clude the return from evidence on the ground that the
protestant exhibited a notice as having been served on him,
in which notice the processioners were described as being
of "the 1146th district," where it appeared from the re-
turn that the processioners were of the "1146th district
originally, now the 1642nd," no point being raised as to
their authority to act. Stewart v. Jackson, 144 Ga. 501, 87
S. E. 656.
Same — Sufficiency. — The evidence in this case did not de-
mand a finding in favor of the line as run and marked by
the processioners, nor was it conclusively established that
previous owners of the adjoining tracts had by agreement
fixed a different line from that alleged by the protestant to
be the true line. The agreement relied on, which was in
writing made in 1889, — after reciting that some of the
marks were about to disappear by the death and decay of
the timber, — stipulated that the parties thereto "agreed
* * * to set up rocks in their places, * * *." As-
suming that such agreement was sufficiently definite to be
valid and that the parties to this case were in accord as to
the location of the two stones referred to in the quoted
stipulation as determinative of the course of the dividing
line, there was evidence by a •iormer county surveyor from
which the jury were authorized to find that the line as
claimed by the protestant coincided with the two points in-
dicated. There was some evidence to support the verdict
found in favor of the protestant. McCollum v. Thomason,
32 Ga. App. 160, 122 S. E. 800.
The evidence authorized the jury to infer that the pro-
cessioners marked anew a pre-existing land line; and, since
no error of law was committed, the trial judge did not err
in overruling the motion for a new trial filed by the prot-
estant to the return of the processioners. McAlpin v.
Thompson, 29 Ga. App. 495, 116 S. E. 64.
Propriety of Charge.— See § 3822.
Where the protest set up that a particular portion of the
line as run by the processioners passed through land of the
protestant (which was described), which had been in his
actual possession for more than seven years under a claim
of right, it was not error to instruct the jury that if such
was the case the protestant must prevail as to that part of
the line, and that as to the remainder of the line their ver-
dict should be according to their finding whether the line
run by the processioners or that claimed by the protestant
was the true line. Stewart v. Jackson, 144 Ga. 501, 87 S.
E. 656.
Construction of Verdicts — In this processioning case the pro-
testant specified his objection to the line marked by the
processioners and the surveyor, and also set out what he con-
tended was the true dividing line. No other issues were
raised in the protest, the verdict in this case was properly
construed by the trial judge as a finding in favor of the
line alleged in the protest to be the true line, and it was
not improper for the judge thereupon to enter a judgment
or decree accordingly, provided the alleged true line was
sufficiently definite. McCollum v. Thomason, 32 Ga. App.
160, 122 S. E. 800.
Appeal by Applicant. — The applicant for processioning mav
appeal, if dissatisfied. Miller v. Medlock, 68 Ga. 822.
Writ of Error to Supreme Court. — A writ of error will not
lie to the Supreme Court to correct the judgment of the
superior court in a proceeding of processioning land, in-
stituted under this section. Where a writ of error in a case
of that character is brought to this court, it will, in con-
formity with the constitution of this state, be transferred
to the Court of Appeals. Elkins v. Merritt, 146 Ga. 647,
92 S. E. 51; Guarantee Trust, etc., Co. v. Dickson, 148
Ga. 311, 96 S. E. 561.
Cited in Tucker v. Roberts, 151 Ga. 753, 760, 108 S. E. 222.
§ 3824. (§ 3250.) Fees. — The applicant shall
pay to each of the processioners two dollars per
day for his services, and to the county surveyor
five dollars per day for his services. If a pro
test is filed, the costs of the court shall abide the
issue. Act 1818, Cobb, 719; Acts 1912, p. 70.
This section grew out of a legislative act (Act 1818, Cobb,
719), which provided that surveyors should receive the same
fees allowed in the fee bill in force at that time. The sec-
tion was first codified in the Code of 1863, reading sub-
stantially the same as it now appears, but with the word
"one dollar" in place of "two dollars" and the word "two
dollars" in place of "five dollars." The section appeared
in each Code as it did in the first Code. The change was
contributed by the legislature (Acts 1912, p. 71), which
raised the fees to the amounts in the section as it appears in
this Code. — Ed. Note.
§ 3825. (§ 3251.) Return. — The processionersl
shall make a return of their acts within thirty!
days, together with the plat of the surveyor, tcl
the ordinary of the county, to be kept on file irj
his office. Act 1799, Cobb, 718; Acts 1905, p. 83
Purpose and Scope of Return and Plat. — The return, properhl
construed, officially does no more than to mark anew the!
boundary line indicated in the application and the return!
of the processioners with the plat attached. The survey isl
properly incorporated in the return and evidenced in the!
plat for the purpose of illustrating and identifying the inl
tervening boundary line marked out by the processionersj
McAlpin v. Thompson, 29 Ga. App. 495, 116 S. E- 64.
The description of the land in the return and in the plall
attached is sufficient to identify the land described in the
1090 ]
§ 3826
TITLE BY WILL
§ 3828
application. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.
E. 64.
Relation of Plat and Return.— The plat of the surveyor and
the return of the processioners are both necessary parts of
the proceedings, and neither is complete without the other.
It was, therefore, error to reject the return of the pro-
cessioners, and admit the plat of the surveyor; but this re-
jection furnishes no ground for reversal on behalf of the
party at whose instance it was done. Rattaree v. Morrow,
71 Ga. 528.
Failure to File Application with Return and Plat.— It is
proper that the processioners file the application to them,
together with their report and the plat of the surveyor, with
the ordinary; but a failure to thus file such application will
not afford a good ground upon which to dismiss the pro-
ceedings. Caverly v. Stovall, 134 Ga. 677, 68 S. E. 442;
McCool v. Wilcher, 27 Ga. App. 96, 107 S. E. 365. See
§ 3818.
Cited in Tucker v. Roberts, 151 Ga. 753, 760, 108 S. E. 222.
§ 3826. (§ 3252.) Land cut off by running
stream. — When any watercourse is one of the
boundary lines of a tract of land, and its course
shall have been changed by nature or art, so
that its present channel shall cut off a part of said
land, the processioners and surveyors shall cer-
tify the fact, and the plat of the surveyor shall
plainly mark the original and present channels,
designating the exact quantity of land so cut off.
Act 1818, Cobb, 719.
As to rights to running water, see § 3629. As to when
streams are boundary lines, see § 3630. As to rights of
owners of watercourses, see §* 4475.
CHAPTER 2.
Of Title by Will.
ARTICLE 1.
Of the Nature of Wills, By Whom and How
Executed.
§ 3827. (§ 3253.) What is a will.— A will is the
legal expression of a man's wishes as to the dis-
position of his property after his death.
See 11 Cum. Dig. 511, 12 Enc. Dig. 811.
Document before Probate. — The term "will" is applied
not only in ordinary speech, but also in the statutes them-
selves, as commonly to documents purporting to be such
before probate as to wills which have been duly and legally
established. Bond v. Reid, 29 Ga. App. 558, 116 S. E. 318.
Masculine Includes Feminine. — In this definition tfie
masculine includes the feminine. Ellis v. Darden, 86 Ga.
368, 12 S. E. 652. See § 4.
Definitions. — " 'A will is a disposition of real and per-
sonal property, to take effect after the death of the testa-
tor.' 4 Kent. Com. 501, Co. Eitt. Ill a. 'Testamentum
est voluntatis nostrae justa sententia de eo quod quis post
mortem suam fieri velit.' Dig. Civ. E- 28, 11, Pandects
liber 2. 'A will is the legal declarations of man's inten-
tions which he wills to be performed after his death.' 2
Black. Com. t. p. 417. 'A will is the declaration of the
mind, either by word or writing in disposing of an estate,
and to take place after the death of the testator.' Car-
thew 38; 7 Bac. Ab. 299." Hester v. Young, 2 Ga. 31, 36.
§ 3828. (§ 3254.) Form. — No particular form of
words is necessary to constitute a will; and in
all cases to determine the character of an instru-
ment, whether it is testamentary or not, the test
is the intention of the maker, from the whole in-
strument, read in the light of the surrounding
circumstances. If such intention be to convey a
present estate, though the possession be post-
poned until after his death, the instrument is a
deed; if the intention be to convey an interest ac-
cruing and having effect only after his death, it
is a will.
I. General Rules of Construction.
II. Instruments Held to Be Wills.
III. Instruments Held to Be Deeds.
Cross References.
For full treatment, see 11 Cum. Dig. 519, 12 Enc. Dig.
816. As to requisites of a deed and conveyance of future
interest by deed, see §§ 4179, 4181. For a full treatment
of the various estates created by wills, see §§ 3656, et seq.,
and the notes thereto.
I. GENERAL RULES OF CONSTRUCTION.
In General. — Rules of construction are — 1. That the in-
tention of the testator is to be gathered from a consideration
of the whole will — (from a comparison of differing terms;
and effect given to this intention, if it can be done legally.
2. That his general intention must prevail over a particu-
lar intention. 3. If there be two repugnant clauses, which
can not be reconciled, the latter must prevail. Robert v.
West, 15 Ga. 122.
Precedents, or adjudged cases, are of but little authority,
and of dangerous application, in deciding upon the inten-
tion of a testator; the construction depends so much on
each case, upon the character of the testator, the terms he
employs, and all the surrounding circumstances. Cook v.
Weaver, 12 Ga. 47; Crumley v. Seales, 135 Ga. 300, 306,
69 S. E. 531. See 11 Cum. Dig. 567, 12 Enc. Dig. 889.
Tests to Determine Character of Instrument. — The
criterion for determining whether an instrument is a deed
or a will is the intention of the maker as to the character
of the estate, and as to the time when the estate is to take
effect. Spalding v. Grigg, 4 Ga. 75.
The test whether a written instrument is a deed or is
testamentary in its character is this: If the title vests
instanti at the execution of the paper, it is a deed; but if
the same is not to take effect until the death of the maker
it is a testament. Ward v. Campbell, 73 Ga. 97; Hester
v. Young, 2 Ga. 31; Cumming v. Cumming, 3 Ga. 460;;
Daniel v. Veal, 32 Ga. 589.
Whether a paper be a will or a deed, depends upon its
effect and operation, to be determined by its own terms.
Daniel v. Veal, 32 Ga. 589.
Same — Testator's Intention. — See § 3900.
In the construction of wills, the intention of the testa-
tor should be the first and great object of inquiry. And
this is to be sought for by looking to the whole will, and
not to detached parts of it. Cook v. Weaver, 12 Ga. 47;
Bivins v. Crawford, 26 Ga. 225; Tyler v. Theilig, 124 Ga.
204, 52 S. E. 204; Shoup v. Williams, 148 Ga. 747, 98 S.
E. 348; Almon v. Shell. 147 Ga. 800, 95 S. E. 681. See
12 Enc. Dig. 888.
Though an instrument may have the general form of a
deed, yet if it its evident intention is to pass no estate un-
til the death of the maker, it will be construed to be tes-
tamentary in character under this section. Sperber v. Bal-
ster, 66 Ga. 317.
Same — Words and Form of Instrument. — The words of an
instrument are what we are mainly to regard, when we
set about seeking what its author's intention was in mak-
ing the instrument; and those words are to be taken in their
usual acceptation, unless there is some extraordinary rea-
son forbidding them to be so taken. The form of an in-
strument also, may help to indicate the intention of its au-
thor. Watson v. Watson, 22 Ga. 460, 463.
Parol Evidence.— See § 3901.
The general rule is, that parol testimony is inadmissible
to explain a will except by proving the circumstances which
surround the testator; his relation to persons and things
about him ; and this may at all times be done. Billingslea
v. Moore, 14 Ga. 370. See 12 Enc. Dig. 892.
It is not competent to prove by one of the witnesses to
an instrument that the parties intended it as a deed. Ward
v. Campbell, 76 Ga. 97.
II. INSTRUMENTS HELD TO BE WILLS.
See 4 Enc. Dig. 262; 11 Cum. Dig. 519, 12 Enc. Dig.
816.
Reservation of Life Estate by Grantor. — Where an in-
strument, in the form of a deed, purported to convey cer-
tain property therein named, in which it was declared by
the party executing it, that she "reserved to herself the
use of all the property during her natural life, then to go
to the above named persons, and from thenceforth to be
their property absolutely, without any manner of condi-
tion:" Held, that the instrument was a testamentary pa-
per, and not a deed. Cravy v. Rawlins, 8 Ga. 450; Symmes
v. Arnold, 10 Ga. 506. See post, this note, "Instruments
Held to Be Deeds," III.
An instrument, having the requisites of a deed, but
couched in the following language: "Then the said prop-
erty to revert back to me, the said M. D. (the Donor) and
after my death, to be divided share and share alike be-
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§ 3829
TITLE BY WILL
§ 3832
tween my two grandsons," is a testamentary paper. Mal-
lery v. Dudley, 4 Ga. 52.
Deed Not Effective Until Grantor's Death.— An instru-
ment which has all the formalities of a deed, except the fol-
lowing words in the concluding part of it: "This deed is
not to go into effect until after the death of said B (the
grantor), he being very ill," under this section, is a tes-
tamentary paper. Bright v. Adams, 51 Ga. 239. See also
Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367; Blackstock v.
Mitchell, 67 Ga. 768.
An instrument headed, "Deed of Gift," purported to con-
vey in the form of a deed certain realty (describing it) ;
also personalty I may have at my death, after the payment
of my just debts and funeral expenses. This